Francis and Diane Elsley t/as Frank Elsley Contracting v Wadwell
[2009] NSWWCCPD 146
•19 November 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Francis and Diane Elsley t/as Frank Elsley Contracting v Wadwell [2009] NSWWCCPD 146 | |||||
| APPELLANT: | Francis and Diane Elsley t/as Frank Elsley Contracting | |||||
| RESPONDENT: | Glenn Reginald Wadwell | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-2502/09 | |||||
| ARBITRATOR: | Mr R Whitelaw | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 August 2009 | |||||
| DATE OF APPEAL DECISION: | 19 November 2009 | |||||
| SUBJECT MATTER OF DECISION: | Whether the evidence supported the Arbitrator’s findings as to injury; whether a back injury was a temporary aggravation of a pre-existing condition; findings as to incapacity and ability to earn; sections 4 and 40 of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | ||||
| Respondent: | McCabe Partners | |||||
| ORDERS MADE ON APPEAL: | Paragraph 1 of the decision of the Arbitrator dated 7 August 2009 is confirmed, save that the reference to injury on “23 September 2003” is amended to read “27 September 2003.” Paragraph 2 is revoked and the following decision made in its place: | |||||
| “(2) The Respondent is to pay to the Applicant weekly payments pursuant to section 40 of the Workers Compensation Act 1987 as follows: From 1 January 2005 to 30 June 2005 at the rate of $128.50 per week; From 1 July 2005 to 31 March 2006 at the rate of $221.72 per week; From 23 April 2007 to 30 June 2007 at the rate of $82.77 per week; From 1 July 2007 to 30 June 2008 at the rate of $26.55 per week.” Paragraphs 3, 4 and 5 are confirmed. The Appellant is to pay the Respondent’s costs of the appeal assessed at $1,000.00 plus GST. The Appellant is to pay interest on the award pursuant to section 110 of the WorkplaceInjury Management and WorkersCompensation Act 1998 from 7 August 2009. | ||||||
BACKGROUND TO THE APPEAL
The Appellant, Francis and Diane Elsley trading as Frank Elsley Contracting, employed the Respondent, Glenn Reginald Wadwell (‘Mr Wadwell’) as a permanent full-time farm hand whose duties included tractor and header driving, fencing and irrigation work, and general farm hand duties.
On 3 September 2003, Mr Wadwell was working in a trench installing pipes when one side of the trench collapsed crushing him against the other trench wall. He claimed that he injured his right knee and twisted his back in this incident. He did not take any time off work nor consult a doctor at that time.
On 27 September 2003 whilst straining to straighten a pipe, Mr Wadwell claimed that he strained his low back. He was off work for a few days before resuming his usual duties. He subsequently resigned his employment with the Appellant on 31 December 2004.
He also claimed that the ‘nature and conditions’ of his employment with the Appellant from 3 September 2003 to 31 December 2004 aggravated the injuries to his back and right knee.
After leaving the employ of the Appellant, he performed a variety of jobs including tractor driving, yard building and as a labourer in the boning room at the Cargill Abattoir in Tamworth. In April 2007 he obtained employment as a stockman at Killara Feed Lot in Quirindi and has remained in that employment.
On 1 April 2009 Mr Wardwell lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking weekly benefits compensation from 1 July 2003 to date and continuing, medical expenses and lump sum compensation.
The Appellant disputed liability on the grounds that Mr Wadwell did not injure his back in the incident on 3 September 2003, suffered only a temporary aggravation of a pre-existing back condition in the incident on 27 September 2003, and had not suffered any economic incapacity as a consequence of his injuries.
The parties attended a hearing before the Arbitrator on 6 July 2009. No oral evidence was given, and submissions by Counsel for both parties are recorded in a transcript of that date.
In a reserved decision delivered on 7 August 2009, the Arbitrator found that Mr Wadwell injured his right knee only in the incident on 3 September 2003, injured his back on 27 September 2003 and was partially incapacitated for work as a consequence of those injuries. No injury was found to have arisen as a consequence of the ‘nature and conditions’ of employment. He made an award in favour of Mr Wadwell at various rates from 1 July 2004 to 30 June 2008.
The Certificate of Determination dated 7 August 2009 records the following formal orders:
“1. That this matter be remitted to the Registrar for referral to an Approved Medical Specialist as follows:
Date of Injury 1:
3 September 2003
Injury to right lower extremity
Date of Injury 2:
23 September 2003
Injury to lumbar spine
Documents to be sent in each case to the AMS:
(i)Application to Resolve a Dispute and attached documents;
(ii)Reply and attached documents;
(iii)Application to Admit Late Documents filed by the Applicant dated 2 June 2009 and attached documents;
(iv)Application to Admit Late Documents filed by the Respondent dated 2 July 2009 and attached documents;
(v)Application to Admit Late Documents filed by the Respondent dated 1 May 2009 and attached documents;
(vi)Application to Admit Late Documents filed by the Respondent dated 29 June 2009 and attached documents;
(vii)These Statement of Reasons.
2. That the Respondent pay to the Applicant weekly compensation as follows:
Date Rate per week
$
- From 1.7.04 to 30.6.05
128.50
- From 1.7.05 to 30.6.06
221.72
- From 23.4.07 to 30.6.07
82.77
- From 1.7.07 to 30.6.08
26.55
3. That the Respondent pay to the Applicant reasonable and necessary medical and related expenses pursuant to s60 of the Workers Compensation Act 1987 upon production of accounts or receipts.
4. That the Respondent pay the Applicant's costs as agreed or assessed.
5. That the costs of the Applicant and Respondent be certified as complex with an uplift of 20%.”
It is from this decision that the Appellant seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator accepted that there was sufficient evidence to support a finding that Mr Wadwell injured his knee in the incident on 3 September 2003 (at [10]-[18] of Statement of Reasons (‘Reasons’)). As to the claimed injury to the back arising from that event, the Arbitrator said at [19]:
“19. The Applicant also claims that he injured his back in the incident. There is no mention in the report of injury form filled out by the employer (admittedly at a much later time) and there is no specific complaint to the general practitioner arising from that incident. It would be logical to assume some injury to the Applicant's back as a result of the mechanism of injury described by him however I do not think that there is enough factual evidence to support the medical opinion of Dr Dixon and the claim for injury to the Applicant's back arising out of the incident of 3 September 2003. Dr Dixon attributes the primary back injury to 3 September 2003 but without sufficient reasons to enable me to conclude that the Applicant suffered injury to his back in that incident.”
As to the incident on 27 September 2003, the Arbitrator noted at [20] that the Appellant accepted that that incident caused an aggravation to Mr Wadwell’s pre-existing back condition but that it was of a temporary nature only “and there was no ongoing pathology as a result.” The Arbitrator rejected this assertion stating as follows:
“20. It seems that the Applicant's injury on that date was a significant one, resulting in him being off work for a number of days. The Applicant had a significant underlying back condition as evidenced by the general practitioner's notes and previous X-rays.
21. The Applicant had worked as a farm hand for the Respondent from 1998. He made no back complaints and was able to complete his work during that time although he clearly had intermittent back problems which had continued since he injured his lower back in May 1986 (see paragraphs 20 and 22 of his statement). Dr Dixon is aware of the Applicant's problems in March 1998 as a result of the MRI of 6 March 1998 and the doctor says that the Applicant "had some residual back ache following a prior injury in May 1986" and "he had had intermittent back aches since his injury in 1986". The doctor attributes significant back injury to the incident of 3 September 2003 and "significant aggravation" to the injury of 27 September 2003. In light of my findings at paragraph 19, I do not accept this and consider that the incident of 27 September 2003 was the significant injury and fits the definition of injury found in s4(b)(ii) of the 1987 Act.
22. I do not accept as asserted by the Respondent that the pathology was only temporary given the Applicant's subsequent work history and current symptoms. It is difficult however for me to say exactly how much of the Applicant's current impairment is due to that injury and how much is due to his previous underlying condition. I will leave that to an Approved Medical Specialist to sort out.”
At [25] the Arbitrator turned to consider the issue of incapacity stating:
“It is clear from the Applicant's subsequent work history that he was partially incapacitated for work as a result of his injuries as found. He is therefore entitled to an award pursuant to s40 of the Workers Compensation Act 1987.”
He then set out the steps he was required to take in making this assessment in accordance with Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (Mitchell ). He adopted the average weekly earnings disclosed in the tax return for the financial year 1 July 2003 to 30 June 2004 ($625.03) and increased that figure by 1% per annum. Having set out in a table the probable earnings from 1 July 2003, (wrongly titled “Actual Weekly Earnings”) he then accepted Mr Wadwell’s Schedule of Actual Earnings by which he calculated Mr Wadwell’s entitlement to weekly benefits for the periods set out in his award. He found no basis upon which he would exercise his discretion to reduce that award.
THE ISSUES IN DISPUTE
The Appellant has raised two issues on appeal as follows:
“1. The Arbitrator erred in finding the temporary aggravation to the Respondent’s back caused by the injury of 27 September 2003 had not resolved.
2. The Arbitrator erred in awarding weekly payments of compensation.”
The Appellant does not challenge the Arbitrator’s findings that Mr Wadwell injured his right knee only in the incident on 3 September 2003 nor that he did not suffer any injuries as a consequence of the nature and conditions of employment.
THE EVIDENCE, SUBMISSIONS AND DISCUSSION
The Back Injury on 27 September 2003
The Appellant concedes that Mr Wadwell suffered an injury to his back on 27 September 2003. The evidence would certainly support the contention that this injury was by way of an aggravation of his pre-existing back condition. It is the extent of that injury which remains in dispute.
The Appellant submits that there are a number of factors in support of its assertion that this injury was merely a “temporary aggravation” namely:
“i. Mr Wadwell was certified fit for his pre-injury duties on 8 October 2003.
ii. The Appellant made no change to his duties up until his resignation.
ii. Mr Wadwell resigned over twelve months after this injury, and did not report any difficulties in performing his work to the Appellant..
iv. After being certified fit for pre-injury duties on 8 October 2003, Mr Wadwell did not consult his general practitioner again about any back problems, despite attending on a number of occasions up until May 2009.
v. There is no change in the radiological investigations taken in March 1998 and May 2008.
vi. Dr Dixon’s report is unreliable because:
a.He did not obtain an accurate history of prior injuries to the back including an injury in 1997 which occurred shortly before the MRI taken in March 1998.
b.He did not comment upon the lack of change in the radiological evidence but merely stated that it was “consistent with his clinical condition.”
vii. Other than Dr Dixon’s report, there was no medical evidence to attribute Mr Wadwell’s back pain to this injury as opposed to his earlier injuries.
viii. When Mr Wadwell completed a Compensation Claim Form dated 3 December 2006 he denied any prior or similar injuries or conditions, which is inconsistent with the records of his general practitioner.”
Whether the back injury on 27 September 2003 was a temporary aggravation of a pre-existing condition, the effects of which had ceased after a short period, is only in part a medical issue. Careful consideration must be given to all the evidence, including the lay evidence.
In his statement dated 21 May 2007, Mr Wadwell said as follows:
“While working at Caroona Feed Lot I sustained two injuries during my employment. The first injury occurred in May 1986 when I suffered low back injury. This was eventually diagnosed as an L4/5 ruptured disc however I did not require any further treatment to this injury. I continued to use Deep Heat and take Panadol when my back was aggravated.
In December 1988 I [injured] my left foot which required surgical repair…
I was able to continue my employment at Caroona Feed Lot for a further 10 years or more after my injuries. Although I continue to suffer a degree of back pain and left foot pain, it did not interfere with my ability to perform the heavy, repetitive duties required of my position as a stockman with Caroona Feed Lot.”
He claimed that he suffered an injury to his right knee in the incident on 3 September 2003 and also twisted his back. He said that: “Although I continued to complain to Frank Elsley that my knee was causing me considerable trouble he did not seem particularly concerned.”
As to the incident on 27 September 2003, he said:
“As I strained to pull the pipe I became aware of low back pain…I subsequently had 5 days off on workers compensation.
As it was a Saturday…I remained quiet for the rest of that day and the following day and on Monday I attended Dr Mayo.
At the time Dr Mayo felt that I had suffered a muscle strain to my lower back and was prescribed rest and Panadeine Forte. After 5 days rest my back pain settled to a degree, however it never fully settled to the degree it had been prior to my commencement of employment with Frank Elsley.
I continued to perform my usual duties, as there was no such thing as light duties available…I suffered niggles and flare ups from time to time with my right knee, right calf and my lower back and suffered pain to some degree all the time. I also became aware of numbness in the underside of my right heel and up the back of the right thigh and noticed pins and needles in the front of my right leg just below the knee.
I was able to work around my injuries by self-modifying the duties I performed and how I performed them.
I continued to hope that given enough time that my right leg injury and back injury would settle down however I continued to inform Frank Elsley that I was having trouble but he did not seem to listen and did not advise me on other duties that I could perform that would not aggravate my pain levels.
Eventually I realised that my right leg symptoms would not settle down if I continued to constantly aggravate it through my employment and eventually resigned from Frank Elsley on 31.12. 2004.
At the time I continued to suffer swelling and sharp pain in my right knee. I also suffered right calf muscle pain and pins and needles down into the ankle.
I noticed when I was walking if I turned sharply I would suffer increased sharp pain in the right knee and also, to some degree, increased back pain.
At the time I left employment with Frank Elsley, I had hoped that if I was able to obtain alternate employment that did not aggravate my right leg pain or back pain, that eventually time would allow it to settle.
Since leaving Frank Elsley Contracting and throughout all these jobs since, I have constantly been aware of problems in my right knee, right calf and back. I had always put off going to the doctors as I had hoped that my symptoms would eventually have settled but realised in April 2006 that it was time to have my knee looked at as it was continuing to cause me increased problems.
I confirm that I currently suffer pain and restriction as a result of my work injuries in September 2003…”
In a statement also dated 21 May 2007, Mr Wadwell’s wife, Debbie Helen Wadwell, said:
“When he started working with Frank Elsley although he had ongoing problems with his foot I do not believe he had any significant problems with his back.
In September 2003…he was complaining about pain in his back and right leg…I remember him showing me his right knee and it was quite bruised and very swollen…
Then a couple of weeks later, they were still working on the same job down in the trench…and again he came home in obvious pain and limping.
He had a bit of time off work after this accident and gone to the doctor fairly quickly because he was concerned about his back pain. He had had an injury to his lower back before and he didn’t want to end up being a cripple.
Over the years Glenn has continued to suffer a degree of back pain and right leg pain but has continued working even though he has obvious significant pain levels…
He used to come home early some days because of the pain he was suffering…and ask me to rub Deep Heat or lavender oil into his back or his leg or whatever was hurting.
Even when he changed jobs he still suffered some degree of aggravation to his back and leg pain. He is the type of bloke that you cant stop from working…
As a result of his ongoing back pain with right leg pain and right knee pain Glenn has difficulties with some of his day to day activities…He has a very noticeable limp at times and when his back pain or knee pain is playing up it is much worse…
He is still struggling with his work commitments although he will probably not admit it I think he is having more trouble than what he indicates…
Glenn is of the old school where the man should be the breadwinner and he feels that he has got to go to work because we need the money and he is a very proud man and will not shirk his responsibility to his family.”
In his report dated 6 March 2008, Dr Dixon, Orthopaedic surgeon qualified on behalf of Mr Wadwell, said that in the first incident on 3 September 2003 Mr Wadwell “sustained a twisting injury to his back and right knee with a valgus stress to the right leg under with [sic] weight of dirt.” He continued:
“He continued to have pain in his back and right leg but returned to work after the weekend…
On 27 September 2003…the claimant was pulling on a pipe…when he noticed a strain in his lower back…he was off work for five days. He saw the local doctor and then resumed his usual duties but continued to have flare ups from time to time in his right knee and lower back which was associated with right calf sciatica and changes in the right lower extremity.
He continued with his duties…from September 2003 up to when he resigned…on 31 December 2004. He had found that his back and right leg symptoms had not resolved and he was continually aggravated through this type of employ, forcing him to resign.”
Dr Dixon obtained a history of the prior back injury in May 1986 which he described as a “low back strain with an L3/4 disc lesion.” Mr Wadwell complained of persistent symptoms in his low back “with lumbar stiffness with right sciatica with paraesthesia in the right thigh and leg…”
Dr Dixon had before him the MRI of 6 March 1998 “showing bulging of the posterior disc margin at L3/4 with a small focal right paracentral disc protrusion…” Degenerative changes were also noted from L3 to S1 together with a “small left intra foraminal disc protrusion at L5/S1 with possible compression on the left L5 nerve root.” Dr Dixon concluded:
“In summary, this patient sustained significant injury to his back and right knee while working in a trench…on 3 September 2003 …He had significant aggravation of the lower back while pulling a pipe to straighten it later in September 2003…
He had had intermittent back aches since his injury in 1986 but had not complained of any sciatica nor knee arthralgia prior to the injuries since [sic] September 2003.”
Dr Dixon set out in some detail Mr Wadwell’s ongoing symptoms including sciatic pain radiating to his right calf and the difficulties he had with activities such as prolonged walking particularly on uneven surfaces or on stairs, and his difficulties kneeling and squatting because of his right knee condition. Dr Dixon considered that his employment had been a substantial contributing factor to his injuries; the main injury to the back he considered arose on 3 September 2003 with “further aggravation” later in September.
The question then is whether this evidence was sufficient to support the Arbitrator’s findings as to the consequences of the back injury on 27 September 2003. I accept the Appellant’s submissions that the Arbitrator’s treatment of this issue was scant indeed. He did not refer to the many matters raised by the Appellant in submissions before him, repeated on appeal and set out at [24] above. His statement at [22] of his Reasons that he rejected the Appellant’s submission that the injury on 27 September 2003 was only temporary, “given the Applicant’s subsequent work history and current symptoms” was in my view inadequate. He was required to determine whether Mr Wadwell’s back symptoms were caused by the employment injury, and to provide adequate reasons for his decision. (See Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33.
The resolution of this particular issue is not an easy task. There is considerable merit in many of the Appellant’s assertions. It is indeed true that Mr Wadwell did not consult his general practitioner, Dr Mayo, in relation to his back after being certified fit to resume his normal duties on 8 October 2003, certainly up until May 2009 when no further records were available.
Those records are of considerable relevance to the issue at hand. Mr Wadwell appears to have first complained of back pain back in April of either 1981 or 1984. The dates are not always easy to decipher. On 15 July 1994 there is a reference to “Ongoing back problems” following what appears to be a reference to an injury in 1986 where he saw Dr Bourke in Quirindi. There are numerous attendances particularly during 1996 to 1998 with complaints of back pain. For example, the entry on 19 June 1996 reads: “Ongoing problems with lower back” and a reference to referred pain from the right buttock to the right thigh. On 11 September 1997 there is a reference to “ongoing low back pain” with pain and aching in the right leg, and limited “sitting and mobility.” On 8 October 1997 there is further reference to low back pain, this time with pain in the right groin, thigh and calf, with an inability to sit or stand for more than ten minutes.
I have been unable to locate in those notes any reference to a particular injury in 1997 as referred to by the Appellant, but I have had considerable difficulty deciphering those notes. In its section 74 Notice, reference is made to the fact that Mr Wadwell failed to “disclose to Dr Dixon the fact that you were certified unfit for work in 1997 due to a work related back injury.” It is not clear which injury that refers to, but certainly Mr Wadwell appeared to be having considerable problems with his back in 1997. Those problems continued throughout 1998 and 1999. For example, on 15 June 1999 the entry reads: “Low back pain over last 6/52. Worse in last 24hrs.”
Many of the entries thereafter are extremely difficult to read and it is not clear if Mr Wadwell consulted Dr Mayo in relation to his back between 1999 and September 2003.
These notes certainly contradict the evidence of Mrs Wadwell that her husband did not have “any significant problems with his back” following the injury in 1986, as does other material to which I will now refer.
Late documents produced include a report from Dr Middleton, surgeon, dated 4 August 1994. He said:
“He said that he hurt his back at work on 14.5.86. He noticed the onset of sudden low back pain when shovelling wet grain out of a trough…He says, however, that the pain has gone ‘on and on.’ He has carried on with his lifestyle, but particularly in the last 6 months symptoms have become worse. He now has difficulty coping with his lifestyle.”
Dr Middleton thought then that consideration ought be given to a spinal fusion given the chronicity of his symptoms and the extent of the degenerative disc disease.
A report from Dr Robert Creer, orthopaedic surgeon, dated 23 April 1997 confirms that he saw Mr Wadwell in relation to his left foot problems. He then said:
“He is also developing some left knee pain and lower back problems. (He had a previous L4-5 disc excision).”
I can find no other reference to such a procedure. If it is documented in Dr Mayo’s notes, I have been unable to find a reference to it, but as I said, I have had considerable difficulty in deciphering them.
Dr Dixon does not appear to have been aware of any of this material. It certainly contradicts his statement that Mr Wadwell “had not complained of any sciatica or knee arthralgia prior to the injuries…”
A comparison of the MRI scan taken on 6 March 1998 with the CT scan of the lumbosacral spine taken on 5 March 2008, apparently at the request of Dr Dixon, appears to show very similar changes in the regions scanned, consistent with the Appellant’s assertion that there was no evidence of a change in the pathology of Mr Wadwell’s back following the injury on 27 September 2003. However, there does appear to me to be a degree of change. I note in the MRI of 6 March 1998 it was noted that there was a “Small left intra foraminal disc protrusion at L5/S1 with possible compression on the left L5 nerve root.” In the CT scan of 5 March 2008 it is noted that there were “…broad based disc bulges at L4/5 and L5/S1 where there was marked narrowing of the joint space and at L5/S1 on both sides, there were osteophytes projecting into the intervertebral foramina, where there is bilateral L5 nerve compression.” (emphasis added).
Dr Dixon’s comment that the CT scan is “consistent with his clinical condition” does not assist in resolving this issue.
No medical evidence was submitted by the Appellant. In these circumstances, the Appellant faces some challenges in establishing its case.
I certainly accept that there is considerable evidence to support the Appellant’s contention that Mr Wadwell’s injury on 27 September 2003 was indeed a temporary aggravation of a pre-existing condition from which he recovered, and consequently could not have suffered any economic loss.
A similar issue was considered by Deputy President O’Grady in Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy & Anor [2009] NSWWCCPD47 where the question was whether an Arbitrator’s finding that a worker had suffered an injury, but recovered, and there was no basis for the matter to be referred to an AMS, was correct. In considering the jurisdiction of the Commission to decide such an issue, Deputy President O’Grady looked at the question of ‘injury.’ Relevant to the issue before me were his observations commencing at [67] as follows:
“67. The term “liability” is not defined in the Acts. It was observed by Roche ADP (as he then was) in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’) that:
‘... To decide liability the Commission must decide, among other things:
(a) whether the worker sustained an ‘injury’ within the meaning of section 4 of the 1987 and 1998 Acts;
(b) does the injury satisfy the conditions in section 9A of the 1987 Act, and
what are the consequences of the injury, that is, what pathology is said to result from the injury.’
68. The Commission, in Connor, proceeded to consider the meaning of “injury” and reference was made to the definition of that term as contained in the 1987 and the 1998 Acts. Reference was then made to the decision of Neilson J in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘Lyons’). Having regard to the matters stated in Lyons the following observation was made at [48]:
‘...the determination of the issue of ‘injury’ requires not only an assessment of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event. These are both threshold liability issues to be decided by the Commission not by an AMS or an Appeal Panel. Employment must be a substantial contributing factor to the work event and to the pathology found before liability arises under the legislation. The determination of these issues requires a consideration of all of the factual and legal issues in the case. It is not simply a medical question.’
In the present case, I am satisfied that Mr Wadwell sustained an injury to his back on 27 September 2003 within the meaning of section 4 of the 1987 and 1998 Acts, and that employment was a substantial contributing factor to that injury. The ‘pathology’ issue is a little more difficult. There certainly appears to me to be some change which Dr Dixon accepted was “consistent with his clinical condition.” In short, it is fair to say that there is demonstrable pathology in Mr Wadwell’s back about which there is insufficient evidence to conclude that it was not caused by the work event, and some evidence to suggest that it was.
Given that, in line with Connor, I am required to consider all of the evidence, not just medical, in order to determine ‘injury,’ the difficulty I have with the Appellant’s argument is this: Mr Wadwell says that he did not ever fully recover, nor indeed return to the level of pain or discomfort he was experiencing at the time he commenced employment with the Appellant. This contention is supported by his wife, although I accept that there are some flaws in her evidence. Dr Dixon refers to this incident as a “significant aggravation.” True, it is not clear if he means a “significant aggravation” of the pre-existing back condition consequent upon the injury in 1986 or a “significant aggravation” of the injury on 3 September 2003. In any event, he does not say whether that aggravation is ongoing or has ceased. Again, I accept that Dr Dixon did not appear to have a full and complete history of Mr Wadwell’s prior back problems, but that defect does not necessarily completely invalidate his report. In my view, the history given was sufficiently accurate to support his findings, particularly remembering that many of incidences of back pain recorded in the notes of Dr Mayo took place many years ago, and that Mr Wadwell remained at work over all those years.
In summary, the totality of the evidence did not support the Appellant’s assertion that the injury on 27 September 2003 was a temporary aggravation of an underlying condition from which Mr Wadwell had recovered.
The Appellant in its section 74 Notice made much of Mr Wadwell’s failure to give an accurate account of his pre-existing condition both to Dr Dixon and in a claim form he completed in December 2006. The Notice sets out in considerable detail the basis upon which liability was declined, and sets out a summary of the Appellant’s analysis of Dr Mayo’s notes. For example, it is claimed that Mr Wadwell failed to disclose to either Dr Dixon or Dr Doig (whom he consulted in 2007 in relation to his right knee) a prior right knee injury in 1997. Again, I have carefully scrutinised those notes, and I cannot find a reference to a right knee injury. Certainly there were complaints of pain in the right leg which continued to his knee. Dr Creer refers to a left knee problem in 1997: it is not clear whether this is an error or not.
To accept the Appellant’s assertions on this issue would require that I dismiss the evidence of Mr Wadwell and that of Dr Dixon. Mr Wadwell’s evidence has not been particularly useful in resolving this issue, but in the absence of any evidence from the Appellant to contradict his assertions, I feel bound to accept his evidence. The fact that he did not consult a doctor in relation to his back after October 2003 is not necessarily fatal to his claim, nor is the fact that he continued in his work without time off until he resigned (because, he says, of his symptoms) in December 2004. He did say that he modified the way in which he performed his duties. It is somewhat disingenuous of the Appellant to complain that: “Other than Dr Dixon’s report, there is no medical evidence to attribute the Respondent’s back pain to the injury of 27 September 2003 as opposed to his earlier back injuries” when it has failed to adduce any medical evidence to assist in the resolution of this issue.
Having carefully considered all of the evidence, and after considerable thought, I have come to the conclusion that there was sufficient evidence to support the Arbitrator’s conclusion that the effects of the back injury on 27 September 2003 were continuing, and that Mr Wadwell was partially incapacitated as a consequence of that injury.
I should perhaps add at this point that the Arbitrator’s conclusion that Mr Wadwell did not suffer an injury to his back in the incident on 3 September 2003 was appropriate for the reasons he gave. An analysis of the contemporaneous evidence supports that view.
The Weekly Payments Issue
The Appellant makes the following submissions:
“i. The Respondent was certified fit for his pre-injury duties on 8 October 2003. Accordingly, the Appellant submits that any incapacity for work after that date related to his pre-existing back or other injuries.
ii. Alternatively, the Appellant submits the Respondent was not given any changes in his duties as a result of either injury.
iii. The Appellant submits the Respondent performed his pre-injury duties until he resigned on 31 December 2004.
iv. Accordingly the Appellant submits there is no evidence to suggest the Respondent was incapacitated for work or sustained a loss in his income in the period when he was performing his pre-injury duties from 30 July 2004 to 31 December 2004.
v. Alternatively, the Appellant submits the Respondent demonstrated a capacity to earn more than his pre-injury income prior to 30 June 2006 and did not provide an explanation for ceasing work with that employer.
vi. Therefore the Appellant submits the difference between the Respondent’s comparable income and his capacity to earn was nil after 30 June 2006 and the Arbitrator erred in awarding weekly payments of compensation after that date.”
Two principal issues arise from these submissions. Firstly, whether or not Mr Wadwell had an entitlement to weekly benefits, and secondly, whether the amounts awarded and the periods claimed were appropriate and supported by the evidence.
Dealing with the first issue, there was sufficient evidence to support the Arbitrator’s findings that Mr Wadwell suffered an injury to his back and to his right knee, the effects of which were ongoing.
I have already considered the evidence relating to the back injury on 27 September 2003. As to the right knee injury, although Mr Wadwell did not consult a doctor at the time, his wife confirmed that the knee was bruised and swollen. Mr Wadwell said that he complained about his knee to Mr Frank Elsley: there was no evidence from Mr Elsley to contradict that assertion. Mr Wadwell set out in considerable detail the ongoing symptoms and difficulties he was having with his knee which eventually lead him to consult Dr Graeme Doig, orthopaedic surgeon, on 18 January 2007, referred by Dr Mayo. In his initial report of the same date, Dr Doig said:
“Thank you for sending Mr Wadwell up to see me today with ongoing right knee problems which have been deteriorating over the last few years. The initial injury was at work while he was in a deep trench, fitting water pipes at the local farm where he works. One of the sides of the trenches caved in and crushed his right leg. This was a significant injury as his fellow workers had to dig him out. His knee was significantly bruised and he had a haemarthrosis. Interestingly he didn’t have any time off work at that stage. He is now working at Cargills in a labouring capacity. He complains of ongoing pain at the front and back of the knee with insecurity feeling.
Clinically he has got obvious signs of anterior cruciate ligament laxity. He was also a bit tender in his postero-medial joint line. His x-ray really wasn’t too bad, showing a tiny evulsion fracture from his anterior tibial spine, consistent with the diagnosis of an ACL tear…”
Dr Doig suggested that he needed ACL reconstruction. In a report dated 20 November 2007, he said:
“ Due to the ongoing problems with his knee, he found lighter work, first at Cargills and he is currently driving a front end loader. He doesn’t appear to have had any time off between jobs.
[His] employment has been a substantial contributing factor to the injury sustained. He had no problems with the knee prior to the injury in the trench and no subsequent significant injuries. The fact that his knee had a haemarthrosis and was bruise at the time is certainly consistent with an [ACL] rupture.
It is my opinion that your client will be restricted to return to heavy duties, particularly on uneven ground, such as those in his pre-injury employment. Mr Wadwell is aware of this himself and has managed to obtain a less physical position currently.
Mr Wadwell’s current condition is static and stable, however, he has ongoing instability in his knee, which could be improved with surgical intervention.
In a relatively young male with instability in his knee doing a manual occupation, the prognosis for the joint must be guarded.
It is my opinion that anterior cruciate ligament reconstruction and possible medial meniscal surgery is reasonably required as previously indicated.”
In an ‘Employer’s Report of Injury’ completed by Mr Elsley on 3 December 2006, he confirmed the date and circumstances of the injury, describing it as “twisted knee, bruising of calf muscle.”
In its section 74 Notice dated 29 June 2009, the Appellant, accepting that “there was an incident on 3 September 2003 involving your right knee” nonetheless declined liability for this injury stating that : “…we do not accept that you sustained an injury (pathology) to your right knee on 3 September 2003 or due to the nature and conditions of your employment.” Again, it was claimed that there was a reference to right knee pain in Dr Mayo’s notes on 13 August 1997 which had not been disclosed to Dr Doig or Dr Dixon. This appears to be the principal basis upon which liability was declined.
The entry in Dr Mayo’s notes on 13 August 1997 refers to “Increasing low back pain” with what looks like “® leg & groin to knee. Continual ache.” I cannot decipher the rest of the notes, but it does seem that Mr Wadwell was referred for a CT scan and “XR Knee.” Subsequent entries in August, September and October 1997 again refer to “ongoing low back pain” with pain referred to the right groin and leg. There is certainly nothing to suggest any injury to the right knee at that time, and Mr Wadwell denied any such injury to Dr Doig when specifically asked.
I am satisfied on all the evidence that Mr Wadwell sustained an injury to his right knee in the incident on 3 September 2003, the effects of which are significant and ongoing. I have already accepted that he suffered an injury to his back on 27 September 2003, and accepted the Arbitrator’s finding that its effects were similarly ongoing.
Does this entitle Mr Wadwell to an award of weekly payments?
Even accepting that Mr Wadwell was certified fit for his usual duties on 8 October 2003, that does not determine his entitlement to weekly benefits. As Deputy President Roche said in Adecco Industrial Pty Ltd v Bilaver [2009] NSWWCCPD 77 at [56]:
“56. The Commission is required to assess his ability to earn in the labour market reasonably accessible to him (see Steggles Pty Ltd v Aguire (1988) 12 NSWLR 693)...
57. Further, in assessing a worker’s ability to earn under section 40(2)(b) (step 2 under… ‘Mitchell’)), an arbitrator is not required to exercise a “discretion”, but is required to apply the relevant authorities and the principles set out in section 43A of the 1987 Act. That is exactly what the Arbitrator did. The exercise of the discretion is applied at step 4 of the process, not step 2 (see Mitchell).”
Mr Wadwell’s evidence, which is supported by Dr Dixon and Dr Doig, is that he continues to have problems with his back and right knee which restrict him in carrying out a number of activities, in particular, ongoing instability in the right knee which restricts him in walking on uneven surfaces and squatting or kneeling, and limited sitting, standing and driving tolerances because of symptoms in his back. In my view, those symptoms have resulted in a significant incapacity on the open labour market
There is insufficient evidence to support the Appellant’s submission that any incapacity for work after 8 October 2003 was as a consequence of pre-existing injuries. Nor do I accept its submission that Mr Wadwell did not provide an explanation for ceasing work either with Graincorp in 2006 or Cargills in 2007. The job at Graincorp came to an end in January 2006 when the harvest season finished, and he ceased at Cargills he said because the work in the boning room “aggravated my right knee pain and back pain.”
Having said that, I accept the Appellant’s submission that there is no evidence whatsoever to suggest that Mr Wadwell suffered any loss of income in the employ of the Appellant from 1 July 2004 to 31 December 2004 as found by the Arbitrator. This was the subject of further submissions filed by the Appellant in the Commission on 30 October 2009 wherein it was confirmed that this issue had been the subject of submissions before the Arbitrator recorded at [16] of the Transcript which he appears to have ignored.
The Arbitrator noted that the Appellant advised that there were no comparable employees. In his “1st Amended Schedule of Earnings” dated 2 June 2009, Mr Wadwell said that his actual weekly earnings from 1 July 2003 to 30 June 2004 were $625.83 per week Probable earnings were said to be “$676.56” but that figure was arrived at by simply adopting a “CPI Increase” of 2.5%
The Arbitrator adopted the figure of $625.83 being the average earnings in the financial year 1 July 2003 to 30 June 2004. That he then increased by 1% per annum as the basis for his calculations of probable earnings for the following financial years. The Arbitrator merely adopted the actual earnings calculated by Mr Wadwell over the following financial years without any reference to the actual employment undertaken at various times.
Mr Wadwell’s Amended Schedule of Earnings was flawed since it calculated earnings by reference to financial years which was not appropriate in the circumstances of this particular case. It was adopted by the Arbitrator without any analysis of the evidence.
The source material upon which the wage schedule was apparently based was scant indeed. It did however broadly support Mr Wadwell’s statement as to the various jobs he did for various employers after ceasing work with the Appellant. The difficulty is that Mr Wadwell said that he commenced at Cargills in April 2006 and resigned that job on 14 April 2007. There are only three payslips from that company: the first dated 31 December 2006, the second dated 25 February 2007 and the last dated 22 April 2007. The last one records “year to date” earnings of $35,591.43, for the approximately ten months since 1 July 2006. His earnings at that company were significantly higher than his probable earnings. The Arbitrator found that he did not suffer any loss between 1 July 2006 and 22 April 2007 but did not address the evidence that this employment commenced in April 2006.
Pay records from Killara suggest that the first pay period commenced on 7 April 2007, before he apparently ceased at Cargills. It seems that for a period he was certainly earning less than his probable earnings and is entitled to an award. I do not accept the Appellant’s submission that he was not entitled to an award beyond 30 June 2006 because he had demonstrated a capacity to earn more in his job at Cargills. I accept that he demonstrated an ability to earn more at Cargills for a period of time, but on his evidence, the work was not suitable even though he continued in it for twelve months.
Doing the best I can on the available evidence, I am satisfied that Mr Wadwell is entitled to an award for the following periods:
a. From 1 January 2005 to 30 June 2005;
b. From 1 July 2005 to 31 March 2006;
c. From 23 April 2007 to 30 June 2007;
d. From 1 July 2007 to 30 June 2008.
CONCLUSION
Although the Arbitrator’s reasons were in my view insufficient in many respects, and it is clear that he failed to address a number of relevant issues raised by the Appellant, his ultimate conclusions on the issue of ‘injury’ were correct on all the evidence, and his findings as to ‘incapacity’ were fundamentally correct, but flawed for the reasons stated.
DECISION
Paragraph 1 of the decision of the Arbitrator dated 7 August 2009 is confirmed, save that the reference to injury on “23 September 2003” is amended to read “27 September 2003.”
Paragraph 2 is revoked, and the following decision made in its place:
“(2) The Respondent is to pay to the Applicant weekly payments pursuant to section 40 of the Workers Compensation Act 1987 as follows:
From 1 January 2005 to 30 June 2005 at the rate of $128.50 per week;
From 1 July 2005 to 31 March 2006 at the rate of $221.72 per week;
From 23 April 2007 to 30 June 2007 at the rate of $82.77 per week;
From 1 July 2007 to 30 June 2008 at the rate of $26.55 per week.
Paragraphs 3, 4 and 5 are confirmed.
COSTS
Contrary to the submissions made by Mr Wadwell, I do not consider that the appeal was brought “without merit.” The Appellant having been partially successful, I order the Appellant to pay the Respondents costs in the sum of $1,000.00 plus GST.
INTEREST
Mr Wadwell seeks interest on the award pursuant to section 110 of the 1998 Act. He claims that, as at 15 October 2009, no payments have been made by the Appellant’s insurer. Reference is made to the decision of his Honour Judge Keating in The Bright Group Pty Ltd(QBE) v Akdeniz [2009] NSWWCCPD 113 where he said at [122]:
“122. …A successful worker is entitled to the benefit of any award in his or her favour from the date the award or order is made. In this case the Arbitrator’s orders took effect from 30 March 2009 and I assume that the insurer has complied with it. If that is not the case the worker will have good grounds for complaint to the WorkCover Authority and will be entitled to interest under section 110 of the 1998 Act.”
Section 110 (1) provides:
“Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Commission as is from time to time unpaid.”
Mr Wadwell having been successful (at least in part) in maintaining his award, I consider it appropriate that interest be awarded as from the date of the Arbitrator’s order, namely 7 August 2009.
Deborah Moore
Acting Deputy President
19 November 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
3
0