Fowles Auction Group Pty Ltd v Jovanovic
[2005] NSWWCCPD 81
•9 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fowles Auction Group Pty Ltd v Jovanovic [2005] NSW WCC PD 81
APPELLANT: Fowles Auction Group Pty Ltd
RESPONDENT: Vidoje Jovanovic
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC4348-04
DATE OF ARBITRATOR’S DECISION: 10 August 2004
DATE OF APPEAL DECISION: 9 August 2005
SUBJECT MATTER OF DECISION: Pre-existing condition, cessation of aggravation, finding against the weight of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: In-House Legal Department, QBE Workers Compensation (NSW) Ltd
Respondent: Gajic & Co, Lawyers
ORDERS MADE ON APPEAL: Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 10 August 2004 are revoked and the following paragraphs are substituted:
1. An award for the Respondent in respect of the Applicant’s claim pursuant to section 40 of the Workers Compensation Act 1987 in respect of the period from 12 November 2003. From that date, Fowles Auction Group Pty Ltd is not liable to pay weekly compensation to Mr Jovanovic in respect of injuries to his right knee, back, left shoulder and neck caused by an accident on 1 October 2002.
2. An Award in favour of the Applicant pursuant to the provisions of section 60 of the Workers Compensation Act 1987 in respect of medical expenses associated with the injuries suffered by the Applicant arising out of or in the course of his employment with the Respondent.
3. Respondent to pay the Applicant’s costs as agreed or assessed but excluding any costs associated with the preparation of the claim in respect of weekly compensation.
Clause 4 of the Arbitrator’s decision is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 26 August 2004, Fowles Auction Group Pty Ltd (‘Fowles’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 10 August 2004.
The Respondent to the Appeal is Vidoje Jovanovic.
Mr Jovanovic was born in the former Yugoslavia on 26 June 1971 and is aged 34. In the early 1990s, he performed National Service in the former Yugoslavia, in the course of which he was injured when hit by bullets in the right knee and back. As a result, Mr Jovanovic developed osteoarthritis in the right knee. He migrated to Australia in June 1995, and now lives with his wife and young son who was born on 9 April 2004.
In about 1998, Mr Jovanovic commenced employment with Fowles as a car detailer. On 9 December 1999, he underwent an arthroscopy on his right knee. He was off work for about six months after the surgery but then resumed full-time duties as before. On 1 October 2002, he fell when pushing a motorbike on Fowles’ premises and injured his right knee, back, neck and left shoulder. He notified Fowles of the injury on that day. Mr Jovanovic underwent a further arthroscopy and a synovectomy on his right knee on 6 January 2003. He returned to light duty work on a part-time basis but has not worked on a full-time basis since the accident. Mr Jovanovic received workers compensation payments until 11 November 2003 when ongoing liability was denied.
On 6 January 2004, Mr Jovanovic’s solicitors lodged a claim for workers compensation, claiming weekly benefits compensation, medical, hospital or related expenses, and compensation for permanent impairment and pain and suffering. On 12 March 2004, Mr Jovanovic’s ‘Application to Resolve a Dispute’ was registered by the Commission. Fowles’ ‘Reply’ was dated 12 May 2004.
The Arbitrator conducted a teleconference with the parties on 23 June 2004 and, on 29 July 2004, after a conciliation proved unsuccessful, he conducted an arbitration hearing at the conclusion of which he gave an ex tempore decision.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 10 August 2004, records the Arbitrator’s orders as follows:
“1. Respondent to pay $163.75 per week from 12 November 2003 to date and continuing.
2. Respondent to pay section 60 expenses.
3. Respondent to pay the Applicant’s costs as agreed or assessed.
4. I refer the Applicant to an AMS [Approved Medical Specialist] for assessment of whole person impairment.”
In the course of his ex tempore decision, the Arbitrator said (arbitration hearing transcript page 32 ff):
“I am prepared to accept that there are some continuing problems of pain and stiffness in the neck, back and left shoulder. However, given the nature of the investigations and the nature of the complaints, the problem in all three areas could only be categorised as minor when compared with the problems with the right knee, probably in the form of musculoligamentous strains or the like.”
The Arbitrator noted that Mr Jovanovic “came under the care of Dr John Ireland, Orthopaedic Surgeon, in October 1996”, at which time “there was a pre-existing significant disability in the right knee”. Dr Ireland performed an arthroscopy on Mr Jovanovic’s right knee on 9 December 1999. When Dr Ireland last saw Mr Jovanovic before the accident, on 19 September 2001, “there had been progressive deterioration of the knee over the previous three months” and Dr Ireland booked Mr Jovanovic for a further arthroscopy in the New Year, although this did not happen. When Dr Ireland next saw Mr Jovanovic after the accident, on 3 October 2002, he found an aggravation of the underlying arthritis and increasing pain. He then performed further treatment including an arthroscopy on 6 January 2003. The primary issue was whether, when compensation payments ceased in November 2003, the aggravation had ceased. Dr Ireland was of the view that the aggravation had ceased.
The Arbitrator discussed Dr Ireland’s evidence. He found Dr Ireland had failed to explain the basis for his opinion and found that opinion to be “ambiguous” because it was not clear whether he was talking about an aggravation of the underlying pathology or an aggravation of the symptomology. The Arbitrator said (arbitration hearing transcript page 34): “If there is a continuing symptomatic aggravation, the applicant is entitled to continuing weekly payments.” He said “the other doctors who have expressed opinions in this case are no more helpful than Dr Ireland on this particular point”, with the exception of Dr Medhat Guirgis, Consultant Orthopaedic Surgeon, who although “operating on an incorrect history”, found that the accident caused an aggravation of the osteoarthritic condition affecting the right knee contributing to the current symptomology and disability.
The Arbitrator compared the difficulties Mr Jovanovic was experiencing with his knee in September 2001, when seen by Dr Ireland, and in November 2003, and concluded that his condition was significantly worse to the extent that “in terms of severity, the opinion that aggravation had ceased just doesn’t seem to be able to stand up” (arbitration hearing transcript page 36).
The Arbitrator referred to the High Court decisions in Watts v Rake (1960) 108 CLR 158 (‘Watts’) and Purkess v Crittenden (1965) 114 CLR 164 (‘Purkess’), and said that where one has a history of an incident and the condition being worse ever since (arbitration hearing transcript page 37):
“One is entitled to draw the inference that it is due to the incident, and whilst the legal onus remains with the applicant, the evidentiary onus shifts to the respondent. If they wish to establish that the incapacity is due to some other cause, they must bring the evidence of it. In this particular case, I don’t find the evidence of it acceptable or persuasive on the specific point, and for that reason I find that there is a continuing problem with the right knee.”
The Arbitrator’s specific finding on the injuries suffered was as follows (arbitration hearing transcript page 39):
“I find that on 1 October 2002 the applicant suffered an injury to his right knee by way of aggravation of a pre-existing condition, and injuries to his back, neck, left shoulder in the nature of soft tissue strain.”
The Arbitrator then turned to the question of incapacity and said (arbitration hearing transcript page 37):
“[I]t would seem to me that this is a case of a partial incapacity. Mr Jovanovic has what I find to be some minor ongoing problems with the back, the left shoulder and the neck. There is a significant problem with the right knee such that the range of work available to him really requires some sedentary, perhaps part-time but certainly lighter, forms of work.
His earnings but for the injury are only $463.75 per week. It seems to me that carrying out suitable light work he would probably be capable of earning something in the vicinity of about $300 per week.”
The Arbitrator found there to be “no discretionary grounds for reducing the mathematical difference” and therefore awarded Mr Jovanovic “the sum of $163.75 per week from 12 November 2003 to date and continuing”, together with section 60 expenses, and costs, as detailed in the Certificate of Determination.
ISSUES IN DISPUTE
The principal issue in dispute in the appeal is whether the injury to Mr Jovanovic’s right knee on 1 October 2002 gave rise to a continuing aggravation of the osteoarthrits affecting that knee from 12 November 2003.
Fowles identified a number of grounds of appeal concerning the Arbitrator’s findings and treatment of the evidence, and his comments concerning the onus of proof, asserting that these were errors of fact or law. The submissions of the parties are discussed more fully below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Fowles submits that because the amount of compensation involved is substantial and weekly compensation could, because Mr Jovanovic is a relatively young man, continue for many years, there should be an oral hearing to afford the parties procedural fairness and enable the parties to address each other’s competing submissions. Mr Jovanovic’s solicitors concur. However, I have the benefit of detailed written submissions from the parties in relation to the appeal and, noting that neither party seeks to adduce fresh evidence, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), according to Fowles, the amount of compensation at issue is significantly in excess of $5,000, comprising arrears of weekly compensation of $5,637.91, ongoing weekly compensation, section 60 expenses of at least $3,230.90 and, with a referral to an Approved Medical Specialist, the likelihood of lump sum compensation for permanent impairment and pain and suffering. The amount in issue constitutes 100% of the amount awarded by the Arbitrator. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
Fowles list six grounds of appeal. The first three grounds concern the Arbitrator’s findings in relation to the medical evidence. Fowles asserts that the Arbitrator’s determination was “against the evidence and the weight of evidence”, and criticises his comment that “the other doctors who expressed opinions in this case are no more helpful than Dr Ireland” with the exception of Dr Guirgis. Fowles asserts this finding is an error of fact and, to the extent it was meant to convey that the doctors did not give any evidence in favour of the Fowles’ contention that the aggravation had ceased, an error of law. The Arbitrator also erred in fact by failing to conclude that Dr Ireland was referring to both pathology and symptoms in stating his opinion that the aggravation had ceased (ground 6).
Fowles submits that the Arbitrator erred in law in determining that the onus of proof had shifted to it to prove Mr Jovanovic was incapacitated as a result of some other injury or condition (ground 4). Alternatively, if there had been a shift in the onus of proof, the Arbitrator had erred in law by not finding that Mr Jovanovic’s medical case was caused by the bullet wound injury (ground 5).
In its submissions, Fowles contends that Mr Jovanovic did not establish that the injuries to his back, neck and shoulder gave rise to an ongoing economic incapacity. Any continuing problems with his back and neck are referable to Mr Jovanovic’s altered gait as a result of the condition of his knee. Mr Jovanovic’s solicitors point to the medical evidence supporting the Arbitrator’s finding that Mr Jovanovic has some continuing problems and stiffness in the back, neck and left shoulder to which the Arbitrator also referred in making a finding of partial incapacity.
With regard to Mr Jovanovic’s right knee, Fowles submits it is clear that when Dr Ireland referred to the aggravation and to its having ceased, he was referring to both pathology and symptoms. The medical evidence points to Mr Jovanovic’s symptoms being the direct result of the underlying condition of his right knee. Drs Hyde-Page (19 February 2004) and Macauley (1 September 2003) both expressed the opinion that the aggravation had ceased and Dr Mills (23 October 2002) anticipated that the injury would resolve relatively quickly – all of the acceptable evidence pointed to a temporary aggravation. The Arbitrator noted that Dr Guirgis’ history was wrong.
Fowles submits that it was highly relevant that Mr Jovanovic’s symptoms improved after the arthroscopy performed by Dr Ireland on 6 January 2003. The subsequent deterioration did not appear to be related to any activity but, rather, was related to the underlying condition.
Mr Jovanovic’s solicitors submit the medical evidence was divided on the question of whether the aggravation had ceased. The doctors who expressed the opinion that it had ceased by mid to late 2003 failed to explain the persistence of symptoms and incapacity commencing from and persisting at all times after the injury on 1 October 2002, thus rendering their opinions suspect. The worsening of Mr Jovanovic’s condition after 1 October 2002 is inconsistent with a cessation of the aggravation in late 2003 but is consistent with some major change between the two dates and with an ongoing aggravation referable to the injury on 1 October 2002. Mr Jovanovic’s solicitors submit that despite the inaccuracy in his history, the only medical opinion that adequately explains the facts is that of Dr Guirgis. In any event, the inaccuracy relates to the period before 1 October 2002 and does not operate to vitiate the doctor’s opinion.
In its submissions in reply, Fowles asserts that when Dr Ireland saw Mr Jovanovic on 19 September 2001, Mr Jovanovic’s pre-injury complaints were already affecting his ability to work as Dr Ireland recorded (21 November 2003). Dr Guirgis’ reason for disagreeing with Dr Ireland’s opinion was based on a history that was wrong – that Mr Jovanovic “did the normal duties of a Detailer for 5 years (before the alleged injury) without any problems”. Indeed, the reasons why Dr Guirgis’ opinion could not be accepted were clearly spelt out by the Arbitrator.
EVIDENCE
The documentary evidence comprises a statement from Mr Jovanovic dated 3 February 2004 together with the medical evidence. Essentially it is the medical opinions as to the nature of the aggravation caused by the injury on 1 October 2002, and whether the aggravation continued after 11 November 2003 that is the principal focus. There is no dispute that Mr Jovanovic developed osteoarthritis in his right knee following the injury to his knee in the former Yugoslavia in the early 1990s.
After arriving in Australia in June 1995, Mr Jovanovic had further treatment for his right knee condition, including an arthroscopy performed by Dr Peter Giblin, Orthopaedic Surgeon. He first consulted Dr John Ireland, Orthopaedic Surgeon, on 10 October 1996, who, at the date of the arbitration hearing, was apparently still Mr Jovanovic’s treating specialist. Dr Ireland prepared a report dated 21 November 2003. Dr Ireland said that “[a]t the time of presentation, he complained of moderate pain, a feeling of instability and persistent swelling”. Dr Ireland next saw Mr Jovanovic “on 19 December 1996, after he was recently presented at Liverpool Hospital for general discussions by other Orthopaedic Surgeons. He had had a recurrence of effusion in his knee, which ultimately required drainage.” When next seen on 2 October 1997, the “knee continued to cause him pain and he felt that there was something loose within the knee”. Mr Jovanovic was placed on the waiting list for an arthroscopy at Liverpool Hospital. Dr Ireland saw him again on 7 January 1998 and on 27 August 1998 when his condition remained unchanged. Dr Ireland performed an arthroscopy on Mr Jovanovic’s knee on 9 December 1999:
“The findings at that stage were extensive degenerative changes and florid synovial proliferation with haemoserous staining. The joint was debrided and he was discharged home on the same day.”
Over the next six months, Dr Ireland saw “a pleasing improvement in his knee” and when Dr Ireland saw him on 6 July 2000, he felt Mr Jovanovic could return to work. However, when Dr Ireland saw Mr Jovanovic on 19 September 2001:
“There had been a progressive deterioration in his knee over the previous three months. The pain was mainly around the medial aspect and was affecting his ability to continue to work …
Examination on that occasion revealed increasing deformity in the knee with 10° of varus, 20° of fixed flexion and arthritic changes noted on x-rays. He was booked for a further arthroscopy in the New Year.
He was next seen on 3rd October 2002, following an injury he had sustained at work when a bike fell against his leg. This had resulted in an aggravation of his underlying arthritis and increasing pain.”
Dr Ireland performed another arthroscopy on 6 January 2003. He saw Mr Jovanovic again on 13 February 2003, 27 March 2003, and on 25 June 2003 when “His symptoms had plateaued; but he was coping with his current workload”. Dr Ireland next saw him on 24 September 2003, when:
“His knee was no better and if anything there had been a steady deterioration over the previous few months. I did not feel it was realistic for him to return to his previous line of work and he needed vocational retraining.”
Dr Ireland prepared a report addressed to the insurer, QBE, dated 9 October 2003 stating that Mr Jovanovic’s “period of aggravation has ceased and I do not believe there is any ongoing attributability to his work-related injury”. It was on the basis of this report that Fowles terminated weekly compensation payments and denied further liability for section 60 expenses.
Dr Ireland saw Mr Jovanovic on 21 November 2003 for the purpose of preparing a report. He said:
“In summary, this gentleman has longstanding arthritic changes in his right knee as a result of a gunshot wound.
There has been a recent aggravation by an accident at work.
I believe that his period of aggravation has ceased.
I do not believe that there is any ongoing attributability to his work-related injury.”
Turning to the other medical evidence, Mr Jovanovic’s general practitioner, Dr Velibor Todorovic, in a report dated 17 December 2003, diagnosed:
“i) Aggravation of the underlying osteoarthritis – Right Knee
ii) Post traumatic mechanical derangement of the thoracic and lumbar spine with a discogenic component (L3/4 disc bulge, T4/5 disc protrusion)
iii) Post traumatic tendonitis/subacromial bursitis – left shoulder.”
Dr Todorovic said “[n]o permanent disfigurement are [sic] likely to result from the injuries received”.
Dr Medhat Guirgis, treating Orthopaedic Surgeon, provided reports for Mr Jovanovic dated 4 November 2003 and 11 July 2004. Dr Guirgis said he first saw Mr Jovanovic on 6 November 2002 on a referral from Dr Todorovic. Mr Jovanovic gave him a history that:
“After his arrival in Australia Dr Ireland operated on his right knee and after that he was given a certificate that he was fit for normal duties. He did the normal duties of a car detailer for 5 years without any problems until the above history started on 1st October 2002.”
Dr Guirgis said that the accident on 1 October 2002 resulted in the following injuries:
“1. Post-traumatic mechanical derangement of the cervical, thoracic, and lumbar areas of the spine. This was caused by musculo-ligamentous sprain/strain with intervertebral disc involvement.
2. Post-traumatic symptoms in the right knee joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. This injury had triggered the symptoms of &/or aggravated of [sic] the effects of underlying degenerative changes …”
In his report of 11 July 2004, Dr Guirgis records that Dr Ireland performed an arthroscopy on Mr Jovanovic’s right knee in 1999, following which:
“[H]e was off work for 6 months and then Dr Ireland gave him a certificate that he was fit for normal duties. He resumed the full duties of car detailing and continued to do so without any problems until 19-9-2001 when he presented to Dr Ireland on 19-9-2001 [sic] and I note here from Dr Ireland’s report that there had been a progressive deterioration in his knee over the previous three months. The pain was then felt mainly around the medial aspect and was affecting his ability to continue working. Mr Jovanovic indicated to me that the incident settled down shortly after and that he then continued to work doing the full duties of a car detailer until the accident happened in October 2002 …”
Dr Guirgis, who had last seen Mr Jovanovic on 7 July 2004, said in his opinion:
“The signs and diagnosis remains consistent with the ongoing effects of post-traumatic mechanical derangement of the cervical, thoracic, and lumbar areas of the spine caused by chronic musculo-ligamentous sprain/strain with triggering and aggravation of the effects of the underlying spondylotic changes as shown in the MRI studies. There were also ongoing symptoms and signs in the right knee joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures which aggravated of [sic] the effects of underlying degenerative changes.
The ongoing disability is causally related to the history given to me in my earlier report being the result of the 1-10-2002 incident.”
Dr Guirgis disagreed with Dr Ireland and said the aggravation caused by the incident “is contributing at least in part to the current symptomatology and disability in his right knee”.
Turning to the medical reports relied upon by Fowles, Dr Ross Mills, Occupational Physician and Injury Management Consultant, provided reports dated 23 October 2002 and 16 July 2003. In his later report, Dr Mills said that in his opinion Mr Jovanovic should be considered “permanently fit for selected light duties (essentially due to his pre-existing injury)” but “permanently unfit for work as a Car Detailer” because of the physical requirements of that work.
Dr David Macauley, Consultant Physician, in a report dated 1 September 2003, stated that in his opinion, Mr Jovanovic “suffered a temporary aggravation to severe pre-existing degenerative arthritis of his right knee on 1 October 2002”. That temporary aggravation “has ceased” and he is now fit for selected duties such as those of a clerical or sedentary nature.
Dr M Hyde-Page, Orthopaedic Surgeon, in a report dated 19 February 2004, was of the opinion that Mr Jovanovic’s “severe right knee degenerative condition is purely attributable to his major bullet wounds in the mid 1990s”. He said:
“I do not believe that the injury that this man suffered when knocked over by the motorbike on 1 October 2002 has in way contributed to his present major right knee complaint. The need for further surgery is completely unrelated to his major work injury where any aggravation has well and truly ceased.”
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Fowles must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
First, with regard to the injuries to Mr Jovanovic’s back, left shoulder and neck, I am not satisfied that the Arbitrator made any error in finding these problems to be relatively minor and “probably in the form of musculo-ligamentous strains or the like”. Dr Ireland, treating Orthoapedic Surgeon, did not refer to these injuries, being focused on Mr Jovanovic’s right knee. Dr Todorovic, treating general practitioner, in his report dated 17 December 2003, referred to post-traumatic “mechanical derangement of the thoracic and lumbar spine” and “tendonitis/subacromial bursitis” affecting the left shoulder. Dr Guirgis, treating Orthoapedic Surgeon, in his report dated 4 November 2003, referred to “post-traumatic mechanical derangement of the cervical, thoracic and lumbar areas of the spine” and, in his report dated 11 July 2004, “caused by chronic musculo-ligametous sprain/strain with triggering and aggravation of the effects of underlying spondylotic changes shown in MRI studies”. In answer to a specific question with regard to the injury to the back, left shoulder and neck, he said Mr Jovanovic was able to do full-time work involving “suitable duties not stressing his spine”.
Dr Mills, in his report dated 23 October 2002, referred to Mr Jovanovic describing low back pain with prolonged sitting which is worse at night with an onset of one to two days after the injury, but only otherwise referred to Mr Jovanovic’s right knee. Dr Macauley, in his report dated 1 September 2003, stated:
“I do not believe that he has any significant back problems related to the injury on 1 October 2002 as he has considerable gait abnormality related to his right knee causing altered weight bearing and this which [sic] I believe is causing musculo-ligamentous strain in his lumbar spine.”
Dr Macauley said he does “not regard [sic] any permanent impairment of the right leg or back related to the incident on 1/10/02”.
Dr Hyde-Page, in his report dated 19 February 2004, commented on:
“some mild symptoms in his [Mr Jovanovic’s] lower back and neck. His back complaint corresponds to where he had the bullet wound in the mid 1990s and on the balance of probabilities I would feel that his back complaint is mainly due to this bullet wound and not due to any injury he suffered in October 2002.
With his neck injury, he had no previous neck complaints, and the ongoing symptoms here are probably related to his injury when he fell on the ground after being hit by the motorbike on 1 October 2002.”
Dr Hyde-Page could
“see no reason why these soft tissue symptoms won’t slowly settle over the next year or two. However, the fact that he has such a stiff right leg may continue to aggravate his back complaint.”
On the basis of the above evidence, I am not satisfied that Mr Jovanovic has a continuing incapacity for work from 12 November 2003.
Clearly, the major incapacitating condition affecting Mr Jovanovic is the osteoarthritis in his right knee. The dispute between the parties is focused on the 1 October 2002 injury to his right knee and whether it has given rise to a continuing aggravation of the osteoarthritis affecting that knee from 12 November 2003, when Fowles ceased paying weekly compensation to Mr Jovanovic and denied further liability.
However, having reviewed the medical evidence, I agree with Fowles’ submission that the Arbitrator’s decision concerning Mr Jovanovic’s right knee was against the weight of evidence. I note what Deputy President Fleming said in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73, at paragraph 40:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”
In my view, this is such a case. I do not agree with the Arbitrator’s opinion that Dr Ireland’s opinion was “ambiguous”. I found his report to be thorough and his opinion persuasive. First, as Mr Jovanovic’s treating Orthopaedic Surgeon since 1996 who had operated on the right knee on two occasions, Dr Ireland was obviously well-placed to comment on Mr Jovanovic’s condition. In his report dated 21 November 2003, Dr Ireland described both the underlying pathology and symptomatology of the right knee on the occasion when he saw Mr Jovanovic on 19 September 2001. With regard to the period after the arthroscopy on 6 January 2003, the part of Dr Ireland’s report quoted at paragraph 31, above, goes to the history of the symptomatology of the condition. In my view, it is clear that Dr Ireland linked the worsening symptomatology of the condition when he saw Mr Jovanovic on 24 September 2003 with the degenerative nature of the condition, and not with the accident on 1 October 2002.
With regard to the Arbitrator’s comment that the opinions of the other doctors except Dr Guirgis were unhelpful on these issues, the reports of Dr Mills, an Injury Management Consultant, focus on Mr Jovanovic’s capacity for work. With regard to the reports by Drs Macauley and Hyde-Page, I agree that their opinions are stated relatively briefly. However, this follows after an examination and discussion of both the symptomatology and underlying pathology. Thus, I do not agree that their opinions are unhelpful.
With regard to Dr Guirgis’ opinion, the Arbitrator did recognise that Dr Guirgis operated on an incorrect history. It is therefore a little surprising that the Arbitrator placed considerable weight on his opinion, and dismissing that of Mr Jovanovic’s treating specialist. Even in his second report – of 11 July 2004, Dr Guirgis’ account of the history of Mr Jovanovic’s condition is superficial and, in my view, his opinion is thus unconvincing. I note that in this report, Dr Guirgis said the aggravation caused by the accident on 1 October 2002 contributed “at least in part to the current symptomatology and disability” in Mr Jovanovic’s right knee. Such a comment raises the question whether the aggravation was a “substantial contributing factor to the injury” (section 9A of the 1998 Act), an issue that was not addressed either by Dr Guirgis or by the Arbitrator.
I therefore conclude that the Arbitrator’s finding that the aggravation caused by the accident on 1 October 2002 was continuing, was against the weight of evidence and, by so finding, he made an error of law. Further, in my view, the weight of evidence supports a finding that the injury caused Mr Jovanovic to be partially incapacitated for work from 1 October 2002 to 11 November 2003. However, from 12 November 2003, the work injury had ceased and any continuing incapacity was as a result of his pre-existing osteoarthritis.
With regard to Fowles’ submissions on the onus of proof, in Purkess, the High Court, having referred to Watts, summarised the position as follows (Barwick CJ, Kitto and Taylor JJ):
“where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.”
In my view, this was not the situation in Mr Jovanovic’s case because there was clear and undisputed evidence of pre-existing degenerative osteoarthritis in his right knee.
Having found that the Arbitrator made an error of law, the appropriate decision is to revoke the relevant part of his decision and substitute a part reflecting a finding that the aggravation of Mr Jovanovic’s osteoarthritis in his right knee caused by the accident on 1 October 2002 had ceased by 12 November 2003, there being no continuing incapacity attributable to his employment from that date.
DECISION
Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 10 August 2004 are revoked and the following paragraphs are substituted:
1.An award for the Respondent in respect of the Applicant’s claim pursuant to section 40 of the Workers Compensation Act 1987 for the period from 12 November 2003. From that date, Fowles Auction Group Pty Ltd is not liable to pay weekly compensation to Mr Jovanovic in respect of injuries to his right knee, back, left shoulder and neck caused by an accident on 1 October 2002.
2.Award in favour of the Applicant pursuant to section 60 of the Workers Compensation Act 1987 in respect of medical expenses associated with the injuries suffered by the Applicant arising out of or in the course of his employment with the Respondent.
3.Respondent to pay the Applicant’s costs as agreed or assessed but excluding any costs associated with the preparation of the claim in respect of weekly compensation.
Clause 4 of the Arbitrator’s decision is confirmed.
COSTS
No order is made as to the costs of this appeal.
OTHER
I refer the matter back to the Registrar so that any outstanding substantive issues can proceed to settlement or determination.
Robin Handley
Acting Deputy President
9 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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