Gardiner v Spotless Services Australia Ltd
[2008] NSWWCCPD 129
•4 November 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Gardiner v Spotless Services Australia Ltd [2008] NSWWCCPD 129 | ||||
| APPELLANT: | Kerry Gardiner | ||||
| RESPONDENT: | Spotless Services Australia Ltd | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC2863-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 1 August 2008 | ||||
| DATE OF APPEAL DECISION: | 4 November 2008 | ||||
| SUBJECT MATTER OF DECISION: | Evidence; alleged aggravation of a disease; failure to consider relevant evidence | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea | |||
| Respondent: | Astridge & Murray | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s orders made in the Certificate of Determination of 1 August 2008 are confirmed. | ||||
| Each party is to pay her or its own costs of the appeal. | |||||
INTRODUCTION
This appeal concerns a challenge to an Arbitrator’s decision that the worker (‘Mrs Gardiner’) suffered only a lumbar musculo-ligamentous strain in an incident at work for her employer (‘Spotless’) on 28 February 2005 and that the effects of that strain ceased over the months after the injury.
BACKGROUND
Mrs Gardiner started work for Spotless as a catering assistant in 2004. On 28 February 2005, she attempted to pull a cool room sliding door closed when the door came off its hinges forcing her to steady the door while co-workers realigned the door for her. Though she was able to continue with her shift, she immediately noticed a burning sensation down the left side of her arm, neck and body. Over the next few days, she experienced pain on the left side of her face, neck, left trapezial region and a burning pain down her left arm into the forearm and hand.
She attended on Dr Nguyen on 3 March 2005, who provided a certificate for light duties from 4 March until 7 March 2005, as a result of an injury to her left arm/shoulder. Over the next few months she continued to experience pain in her left arm and she found that her left shoulder became progressively stiff. At some stage Mrs Gardiner also complained of low back pain, but exactly when those symptoms commenced is disputed and is the main focus of the appeal. She eventually came under the care of her regular general practitioner, Dr Rao, on 7 April 2005. He referred her to Dr Ho, orthopaedic surgeon, who saw her on 29 April 2005. He diagnosed her to have a ‘frozen shoulder’ and carried out a manipulation under general anaesthetic on 2 June 2005.
Mrs Gardiner’s problems with her left shoulder continued and she underwent an arthroscopic acromioplasty and subacromial decompression at the hands of Dr Ho on 6 September 2005, which gave little, if any, relief of her symptoms. After taking about six weeks to recuperate, she returned to work on light duties until 5 September 2007. She resigned in late September 2007, after being told there were no more light duties available.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 18 April 2008, Mrs Gardiner claimed to have injured her “cervical spine and left upper extremity” at work on 28 February 2005 while closing the cool room door. She claimed lump sum compensation in respect of a 19% whole person impairment as a result of “cervical spine/left upper extremity/lumbar spine” (Application, Part 5.7), plus compensation for pain and suffering and for hospital and medical expenses.
Spotless filed its Reply on 9 May 2008. It relied on the notice served on 13 July 2007 by its insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That notice disputed injury, whether ongoing treatment was reasonably necessary, whether employment was a substantial contributing factor to the injury and whether Mrs Gardiner had sustained any permanent impairment as a result of her injury.
The matter proceeded to arbitration before a Commission Arbitrator on 17 July 2008, when the Arbitrator identified the issue for determination to be whether Mrs Gardiner injured her cervical and lumbar spines and her left upper extremity on 28 February 2005, or only injured her left upper extremity. In a reserved decision, delivered on 1 August 2008, the Arbitrator made the following orders:
“1. Award for the respondent in respect of the applicant’s claim for injury to the lumbar spine arising from the work injury on the 28 February 2005.
2. That the applicant’s claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 be remitted to the registrar for referral to an Approved Medical specialist as follows;
Date of injury: 28 February 2005
Body parts injured; cervical spine and left upper extremity
Documents to be referred; all documents attached to the application except the report of Dr Ronald Thompson dated 17 March 2006 and report of Dr Donald Jones dated 31 March 2006. All documents attached to the reply.
3. That the respondent pay the applicant’s costs as agreed or assessed.”
By an appeal filed on 28 August 2008, Mrs Gardiner seeks leave to appeal the Arbitrator’s failure to find in her favour in respect of her claim that she also injured her back on 28 February 2005.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no dispute that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of 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.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Mrs Gardiner seeks to introduce, as additional evidence on appeal, two medical certificates from Dr Nguyen dated 26 March and 2 April 2005. In support of her application, Mrs Gardiner submits:
(a)the Arbitrator stated at paragraph 21 of her Reasons that Mrs Gardiner made no complaint of back pain to Dr Nguyen and the certificates establish this to be incorrect;
(b)the certificates are referred to in QBE’s section 74 notice, which is in evidence;
(c)the certificate of 26 March 2005 refers to “lower back sprain” and the certificate of 2 April 2005 refers to “lower back injury”;
(d)there is no prejudice to Spotless if the certificates are admitted into evidence, and
(e)the certificates merely serve to clarify/amplify, rather than change her evidence.
Spotless has made no submissions on the application to admit additional evidence.
Mrs Gardiner’s legal advisers have ignored Practice Direction No 6 and have made no submissions as to why the certificates had not been obtained and tendered at the arbitration. Notwithstanding this unsatisfactory omission I have determined that it is appropriate to admit the certificates into evidence on appeal. My reasons are as follows:
(a)Spotless has raised no objection;
(b)there is no prejudice to Spotless;
(c)the certificates were referred to in the section 74 notice and should have been served on Mrs Gardiner by QBE at the time of service of that notice and included in the Application or the Reply;
(d)the certificates are relevant to the issue in dispute, and
(e)it is in the interests of justice that they be admitted and considered.
EVIDENCE
Mrs Gardiner first sought treatment for her injuries from Dr Nguyen, general practitioner, on 3 March 2005. Dr Nguyen’s first three certificates provided the following diagnoses:
· 3 March 2005 – “injury to L arm/shoulder”;
· 7 March 2005 – “injury to L shoulder”, and
· 9 March 2005 – “L shoulder – tendinitis/mild impingement”.
These entries are consistent with Dr Nguyen’s clinical notes at that time.
The “Incident Report Form” completed by Mrs Gardiner on 4 March 2005 described the part of her body injured as “Left shoulder”.
The “Spotless Early Notification of Workplace Injury” form completed on 8 March 2005 by Tessie Phan, Spotless’ injury manager, described the injury as “Left shoulder strain”.
In the “Employee’s Report of Injury” (‘the claim form’) completed by Mrs Gardiner on 9 March 2005, she described the incident and said that when the door came off the runner it “consequently yanked at my left arm, shoulder and lower back”. She described her injury as “left shoulder tendinitis” and the part of the body affected as “left shoulder”.
Dr Nguyen referred Mrs Gardiner for physiotherapy with Mr Gray at Unanderra Physiotherapy Centre, where she attended on 12 March 2005. Mr Gray recorded that the incident on 28 February 2005 forced her to take the weight of the cool room door to prevent it falling. Mr Gray recorded that, as the door came off, her left arm was “externally rotated and in slight extension” resulting in “immediate burning pain into the left shoulder, which over one hour spread to the lateral arm and posterior neck”.
In Mr Gray’s “Physiotherapy Assessment Form”, dated 12 March 2005, he completed a diagram headed “Site of symptoms”. The diagram indicates symptoms in the neck, left shoulder and left arm, but none in the back. The diagram is consistent with Mr Gray’s report to Dr Nguyen, which described Mrs Gardiner’s condition as being consistent with a “neural restriction through the left upper limb, possibly resulting from a traction-type injury”.
The entry “back pain” appears in Dr Nguyen’s notes on 26 March 2005. His certificates of 26 March and 2 April 2005 record:
· 26 March 2005 “tendonitis/sprain L shoulder
lower back sprain L”, and
· 2 April 2005 “soft tissue injury/sprain/L shoulder/L back”.
Mrs Gardiner first saw Dr Rao, her family doctor, on 7 April 2005. In his initial certificate, dated 7 April 2005, he diagnosed a “soft tissue injury L shoulder, traction injury to neck”. In his next eight certificates, covering the period 21 April to 15 July 2005, he diagnosed “L shoulder injury”. On examination on 7 April 2005, Dr Rao recorded in his clinical notes, among other things:
“tenderness over the left shoulder blade and left lower back
back and neck movements normal
Pdsoft tissue injury left shoulder, ?traction injury to the neck”
Dr Rao’s referral letter of 21 April 2005 to Dr Ho, orthopaedic surgeon, stated that Mrs Gardiner sustained a twisting injury to her left arm and shoulder when a heavy steel door to the freezer room came off its runners on 28 February 2005. A few days later her pain became worse. Physiotherapy gave no significant improvement.
QBE referred Mrs Gardiner to Dr Sekel, consultant in occupational medicine, for assessment on 27 April 2005. He took a history (at page three of his report of 27 April 2005) that the incident on 28 February 2005 caused:
“acute pain from the left posterolateral surface of the base of the neck, through the whole suprascapular region and left shoulder, and the left arm, as well as into the left sacroiliac region (left buttock area).”
He added:
“Fortunately the door did not strike any part of her body, and only caused the sudden jerk via her upturned left palm.
Ms Gardiner kept holding the bar to prevent the door from falling off, until her colleagues rushed to her aid and took control of the door.
The severe pain rapidly improved, but persisted as a mild ache and a burning sensation in the left suprascapular region, left upper arm, and she also has been aware of an occasional slight ache in the left buttock region.” (emphasis included in original)
Dr Sekel examined Mrs Gardiner’s neck and shoulders and diagnosed an acute injury of the left biceps tendon sheath, consistent with a sudden jerking incident through the left shoulder region at work on 28 February 2005 while the bicep was fully stretched.
Mrs Gardiner also received physiotherapy from the Figtree Physiotherapy Centre from March 2005 until early 2006. In a Physiotherapy Assessment Form dated 28 April 2005, the symptomatic areas were identified as the neck, left shoulder and left arm. There is no mention of low back symptoms.
Dr Ho saw Mrs Gardiner on 29 April 2005 and took a history that she sustained a jarring injury to her shoulder at work. She complained of pain and stiffness in her shoulder. His clinical impression was of a frozen shoulder. He carried out a manipulation under general anaesthetic on 2 June 2005.
Dr Rao recorded in his notes on 13 May 2005 that Mrs Gardiner “Gets a lot of shoulder pain, back pain and swelling in the scalene area. Still having physiotherapy”.
Dr Rao again mentioned back symptoms in his clinical notes on 4 August 2005, where he recorded, so far as relevant:
“low back pain since the injury
initially was unable to walk – now walking better but has chronic pain
O/E tenderness over the sacrospinalis at L5/S1 level
movements normal – extension complains of pain”
He also issued a certificate on the same day in which he diagnosed “L shoulder neck & low back injury”.
On 29 August 2005, Mr Milazzo, physiotherapist, examined Mrs Gardiner and provided an “Independent Physiotherapy Consultant Report”. He took a history of her left shoulder injury, physiotherapy and the manipulation by Dr Ho. He included in his report a ‘body chart’, which indicated pain in the neck and left shoulder, but not the low back. He tested Mrs Gardiner’s flexibility in her neck, shoulders, elbows and wrists. Under “Clinical Opinion” he stated that Mrs Gardiner sustained soft tissue damage to her left shoulder and subsequently developed capsulitis with impingement. He considered that her neck symptoms developed as a consequence of aggravation of pre-existing degenerative changes in that region. He made no mention of Mrs Gardiner complaining of any back symptoms.
Mrs Gardiner’s problems with her left shoulder continued and she underwent an arthroscopic acromioplasty and subacromial decompression at the hands of Dr Ho on 6 September 2005, which gave little, if any, relief. After taking about six weeks to recuperate, she returned to work on light duties until 5 September 2007. She resigned in late September 2007, after being told there were no more light duties available.
Dr Ho reviewed Mrs Gardiner several times between April 2005 and 24 April 2007. Whilst his treatment focused on her left shoulder, he also recorded a concern in March 2006 about her complaint of a lot of neck pain and of a clicking in the neck. He ordered a bone scan and x-ray, which revealed cervical spondylosis at C5/6. At no time did Dr Ho record any complaint of low back symptoms.
A report dated from Ms Goodsell, physiotherapist at the Figtree Physiotherapy Centre, dated 4 August 2005 stated, “She continues to have significant neck and shoulder pain, and swelling at the end of the day”, but made no mention of any back pain.
On 27 October 2005, Dr Rao recorded the following in his notes “low back pain several exacerbations – sometimes radiates down the left leg – pain mainly over the left buttock”.
A further Physiotherapy Assessment Form completed on 1 November 2005 (presumably from the Figtree Physiotherapy Centre, though it is unclear) recorded back symptoms and noted “episodic exacerbations last few days”. The “Site of symptoms” diagram identified the low back on the left and the lower right buttock as the areas of discomfort.
A further report from Ms Goodsell dated 3 January 2006 stated, “Kerry’s back is overall improved. She now has full lumbar flexion but extension is still painful and limited”. Precisely when Ms Goodsell started treating Mrs Gardiner’s back is not known.
In February 2006, Dr Rao referred Mrs Gardiner to a new physiotherapist, Mr Kilpatrick, at Smart Health Centre. After assessing Mrs Gardiner on 2 February 2006, Mr Kilpatrick reported on 6 February 2006 that Mrs Gardiner gave a history of injuring her left shoulder, lumbar spine and right knee at work “approximately 11 months ago after pulling on a heavy freezer door”. On examination, her lumbar flexion was half to her shin with extension of ten degrees.
Dr Thomson, consultant trauma surgeon, examined Mrs Gardiner at the request of QBE on 17 March 2006. He took a history that she had an “onset of pain at the left side of the neck, radiating over the shoulder and into the left upper limb and pain at the lower lumbar back in a misadventure with a collapsing large heavy cool room door on 28 February 2005”. He diagnosed a left sacroiliac joint strain and, on the basis of the history provided, accepted that the problem was attributable to the incident on 28 February 2005.
QBE qualified Dr Hitchen, orthopaedic surgeon, who examined Mrs Gardiner on 29 May 2007 and reported on 1 June 2007. He recorded that over the day or two after the incident on 28 February 2005, Mrs Gardiner recalled experiencing pain in the left face, the neck, the left trapezial region and burning pain shooting down the left arm into the forearm and hand. This pain became severe after about three days. He then recorded her treatment and the continuation of her symptoms in her neck, left shoulder and left arm after that treatment. He diagnosed her condition as cervical spondylosis, left shoulder fibrosis (a sequelae of adhesive capsulitis) and atypical pain in the left arm, none of which he felt were work related. He took no history of back symptoms, did not examine her back, and made no diagnosis in respect of it.
At the request of her solicitors, Dr Jones, consultant in rehabilitation medicine, examined and reported on Mrs Gardiner on 4 December 2007. She took a history that Mrs Gardiner jarred her left side when the cool room door fell off its runners on 28 February 2005. She felt a burning pain on the left side of her neck, left shoulder and down her left arm with paraesthesia in her left hand. After setting out the history of the incident, Mrs Gardiner’s symptoms in her neck and left shoulder, and her treatment, the doctor added, “The back pain commenced at the time of the accident with the neck pain”. Under “Current Situation”, the doctor recorded:
“as far as her back is concerned, she developed pain in this area after the accident. This has steadily deteriorated. She gets back pain most days. She gets radicular spread of pain three or four times a week lasting a couple of minutes. The pain radiates down her leg to the knee. It feels like her leg is not there.”
The doctor diagnosed a musculo-ligamentous strain to the lumbar spine with a radicular spread of pain.
Mrs Gardiner gave a statement on 15 November 2007. She set out considerable detail about several matters that have no relevance to the present claim. In respect of the incident on 28 February 2005, she said that she immediately felt a burning sensation down the left side of her “arm and neck and body”, but continued working. Her only reference to her back is at page two where she said that in July 2007 she injured her finger trying to brace herself after her back gave way. There is no explanation as to why her back gave way.
THE ARBITRATOR’S FINDINGS
After making findings relating to the left shoulder and neck injuries, the Arbitrator considered, at paragraphs 21 to 27 of her Statement of Reasons for Decision (‘Reasons’), whether Mrs Gardiner suffered injury to her lumbar spine on 28 February 2005. The Arbitrator then set out a summary of the medical histories and noted:
(a)Dr Jones diagnosed a musuclo-ligamentous strain with radicular spread. A scan on 14 November 2006, revealed mild lumbar spondylosis and narrowing of the lumbosacral disc. Dr Jones did not give any explanation as to why the lumbar symptoms worsened in the latter half of 2005. Whilst Dr Jones diagnosed a traction injury for the cervical spine, which aggravated an underlying degenerative disease, there was no such detail of the mechanics of the injury in respect of the back and she (the Arbitrator) had “no evidence that [an] underlying disease was aggravated under section 4(b)(i) of the 1987 Act” (Reasons, paragraph 25);
(b)Mrs Gardiner’s injury must therefore come under section 4(a) of the 1987 Act. Dr Nguyen took no history of a lumbar spine injury. Dr Rao found some tenderness over the lumbar spine in April 2005, four or five weeks after the work incident, but this symptom was not referred to in his notes over the next few months and the effects of any strain arising from the incident “appear to have settled down”. It was six months later that low back pain and radiculopathy was reported to Dr Rao, who then included back injury on the medical certificates. There was no explanation for this delay in the onset of her symptoms or of how the injury could cause such a delayed onset of radiculopathy. Dr Jones found no spasm and full straight leg raising, power and reflexes in her examination (Reasons, paragraph 26);
(c)If there was an injury to the lumbar spine in terms of section 4(a) of the 1987 Act arising out of the work incident on 28 February 2005, it was a “musculo-ligamentous strain the effect of which ceased over the months after the injury”. The symptoms that developed after August 2005 “do not seem to be directly causally related to the injury of February 2005” (Reasons, paragraph 27), and
(d)Mrs Gardiner’s present symptoms are due to her underlying degenerative mild spondylosis (Reasons, paragraph 29).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that there was no evidence that the underlying disease was aggravated, under section 4(b)(i) of the Workers Compensation Act 1987 (‘the 1987 Act’);
(b)making inconsistent findings at paragraphs 25 and 27 of her Reasons, and
(c)failing to consider relevant evidence and give adequate reasons.
In addition, it is argued that a proper analysis of the evidence should have led the Arbitrator to the decision that Mrs Gardiner suffered a back injury on 28 February 2005, the effects of which are continuing.
SUBMISSIONS
Mrs Gardiner submits:
(a)the Arbitrator’s finding at paragraph 25 of her Reasons is either wrong in law or internally inconsistent;
(b)the evidence before the Arbitrator on ‘aggravation of a disease’ consisted of:
(i)Mrs Gardiner’s history to the doctors of injury to her low back;
(ii)radiological findings in the scan on 14 November 2006, which revealed mild spondylosis and mid thoracolumbar scolosis, and
(iii)the Arbitrator’s finding at paragraph 27 of her Reasons that Mrs Gardiner suffered a musculo-ligamentous strain.
(c)on the authority of Commissioner of Railways v Bain (1965) 112 CLR 246 (‘Bain’), the word “disease” is “apt to describe any abnormal physical or mental condition that is not purely transient” (per Windeyer J at 272). On this basis, a musculo-ligamentous strain can be categorised as a frank injury or a disease process or aggravation of a disease process and the Arbitrator erred in her analysis. In the alternative, the Arbitrator’s findings at paragraphs 25 and 27 are internally inconsistent;
(d)she reported a lower back injury in her “Employees Report of Injury” form dated 9 March 2005 and she complained of pain in her back to various doctors in the early post-injury consultations, including Dr Rao and Dr Sekel;
(e)her statement does not directly deal with the injury to the back, but that is consistent with her injury and honesty. The back injury has always been the secondary injury and, as there is no need for any specific ongoing treatment at this stage for the back, it is consistent that she would not highlight her on-going problems with her back;
(f)the connection between the on-going back condition and the injury on 28 February 2005 is established by objective, contemporaneous material;
(g)the injury is the type of injury that would lead to a mechanical low back problem;
(h)the fact is that, as at 7 April 2005, she had back pain resulting from the injury;
(i)as her major injury was her neck and shoulder, it would not be expected that every time she went to the doctor a recording of back pain would be made. The Court of Appeal has cautioned recently against the use of doctors’ notes as a basis to contradict an injured party’s claim. General practitioners are notorious for not including all complaints;
(j)Dr Sekel recorded a complaint of symptoms into the sacroiliac region. This “establishes a continuity of symptoms in close proximity, i.e., the left side of the applicant’s lower back”, and that at all times, if Mrs Gardiner was asked specifically about her symptoms, she volunteered the on-going back problem;
(k)the next complaint of low back pain was recorded by Dr Rao in his notes on 13 May 2005, which read “Gets a lot of shoulder pain, back pain and swelling in the scalene area. Still having physiotherapy”;
(l)the report from the Figtree Physiotherapy Centre of 3 January 2006 (see paragraph [43] above) suggests that Ms Goodsell had been treating Mrs Gardiner’s back for some time prior to that date;
(m)Dr Rao’s entry of 4 August 2005 (see [35] above) establishes a continuity of symptoms and consistency of complaint and, if anything, shows some improvement in the symptoms, contrary to the Arbitrator’s determination of a significant deterioration at that time;
(n)the Arbitrator accepted a continuity of symptoms after 4 August 2005;
(o)any doctor who examined Mrs Gardiner after August 2006 received a history of on-going back complaint;
(p)there is no logical evidence upon which the Arbitrator could make her vague and inconsistent finding that “the musculo-ligamentous strain recovered over the months after the injury”, and
(q)there should be a finding that as a result of the work injury on 28 February 2005, Mrs Gardiner suffered injury to her lumbar spine and that injury should be referred to an Approved Medical Specialist for assessment of whole person impairment.
Spotless submits:
(a)the ‘review’ should fail, in accordance with the principles of a review established by the authorities (Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43);
(b)the Arbitrator made no error of fact, law or discretion so as to satisfy the requirements of section 352 of the 1998 Act;
(c)Part 4 of the Application confines the injury to “Cervical spine and left upper extremity”. The claim for the lumbar spine is contained in Part 5.7 in respect of the claim for lump sum compensation;
(d)when referring to the incident, Mrs Gardiner’s statement recorded (at page two) that she “immediately felt a burning sensation down the left side of my arm and neck and body but I continued to work”. Her statement made no reference to injuring her back or her lumbar spine;
(e)the documents from Figtree Physiotherapy Centre and the Physiotherapy Assessment Form dated 12 March 2005, make no reference to any back injury or back symptoms. The first reference to lower back is recorded by the physiotherapist in a report dated November 2005;
(f)Dr Rao’s report dated 21 April 2005, makes no reference to any injury or symptoms relating to Mrs Gardiner’s back or lumbar spine;
(g)Dr Rao’s clinical notes (commencing on 7 April 2005) make only a passing reference to the lower back and it is not until 4 August 2005 that he made reference to “O/E tenderness over the sacrospinalis at L5/S1 level”;
(h)Dr Nguyen’s clinical records, starting on 5 March 2005, make no reference to any back injury or symptoms;
(i)Dr Jones’ history makes no reference to any back injury or symptoms, but on page three, apropos to nothing, she added “Nevertheless she continued to have left shoulder, neck and back pain. The back pain commenced at the time of the accident with the neck pain”. This statement is incorrect. None of the contemporaneous evidence, nor Mrs Gardiner’s statement or the Application supports a direct injury to the back on 28 February 2005, nor does it support any symptoms in the back at the time of any neck symptoms. Dr Jones’ history, taken nearly three years post injury, is flawed;
(j)Dr Ho’s serial reports make no mention of any back injury or complaints;
(k)Dr Sekel referred to pain into the sacro-iliac region (the left buttock). This is not a reference to the lumbar spine (Clymer v Roads & Traffic Authority (NSW) (1996) 13 NSWCCR 187 at 189 (‘Clymer’). The report is therefore of no value to Mrs Gardiner in respect of any injury to the lumbar spine;
(l)Dr Hitchen recorded no history of any back injury or complaints;
(m)the Incident Report Form completed by Mrs Gardiner on 4 March 2005 made no reference to any back injury;
(n)Mrs Gardiner’s claim form (completed on 9 March 2005) did mention the lower back, but not in the sections “What injuries did you suffer”, or, “What parts of the body were affected”;
(o)the Arbitrator considered all this evidence and the submissions of counsel at the arbitration;
(p)the Arbitrator was entitled to find that if Mrs Gardiner injured her lumbar spine on 28 February 2005, such injury was a self limiting musculo-ligamentous strain. Such a finding was consistent with the lack of symptoms and the absence of pathology in the lumbar spine at the time of injury. The finding that there was no evidence of a disease was a finding of fact available on the evidence;
(q)the Arbitrator felt that, if Mrs Gardiner did suffer any injury, it was within section 4(a) of the 1987 Act. Once this finding was made, she then found that such injury was of a musculo-ligamentous nature that resolved months later, and
(r)if there was an injury to Mrs Gardiner’s back, such injury was of a minor nature and the Arbitrator’s conclusion at paragraph 27 of her Reasons is correct.
NATURE OF A REVIEW
Spotless’ submissions as to the nature of a review are inconsistent with recent Court of Appeal authority. The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
…
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
The “well established line of authority” referred to by Spigelman CJ was considered in detail in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 at [32] to [55] inclusive.
The nature of a review was also considered in Cook v Midpart Pty Ltd t/as McDonalds Forster & anor [2008] NSWCA 151 and Tan v National Australia Bank Limited [2008] NSWCA 198.
I intend to apply the principles discussed in the above authorities. Essentially, I am required to conduct a “review on the merits” to decide whether the original decision is wrong or, to decide, “what is the true and correct view” (per Spigelman CJ in Chemler).
DISCUSSION AND FINDINGS
As I have ultimately found that Mrs Gardiner did not injure her back or lumbar spine on 28 February 2005, it is not necessary to consider the argument that her injury was an injury in the nature of an aggravation of a disease. Nevertheless, for the sake of completeness, I make the following observations about this ground of appeal on the assumption (contrary to my finding) that Mrs Gardiner did injure her back on 28 February 2005.
The argument that Mrs Gardiner received an injury to her lumbar spine in the nature of an aggravation of a disease is unsupported by any persuasive evidence. The reference to Bain does not advance Mrs Gardiner’s claim. That case concerned a claim for lump sum compensation for boilermaker’s deafness under section 16 of the Workers Compensation Act 1926. The full quote from Windeyer J (at 272) is as follows:
“The word ‘disease’ seems to me apt to describe any abnormal physical or mental condition that is not purely transient, certainly one that, like boilermaker’s deafness, is commonly called an occupational disease. Such a disease may be the result of infection (e.g. anthrax or blood poisoning), of constant exposure to some irritant substance (e.g. dermatitis), of the absorption of a substance poisonous by its cumulative effect (e.g. lead poisoning), of the long continued inhalation of dust injurious to the lungs or of exposure to some other factor which is a circumstance of the employment. I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognized in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker’s disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or the skin of some deleterious substance. Of course, when all forms of occupational disease were brought compendiously within the definition of ‘injury’ for the purposes of the Act, the need for special provisions concerning diseases contracted by a gradual process still remained.”
The term ‘disease’ was recently considered in Fletcher International Exports Pty Ltd v Barrow & Anor [2007] NSWCA 244 (‘Barrow’). That case involved a claim for compensation as a result of a rotator cuff and bicipital tendonitis as a result of overuse and repetitive trauma at work. Mason P (Santow and Tobias JJA agreeing), said (at [61]):
“The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker’s condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work.” (emphasis added)
A finding of an aggravation of a disease is dependent on appropriate medical evidence being tendered “as to the nature and origin of the worker’s condition”. That evidence is absent in the present case. Mrs Gardiner’s history to the doctors gives no persuasive support to a finding that she received an injury in the nature of an aggravation of a disease. The first mention of her back after 28 February 2005 was to Dr Nguyen on 26 March 2005, when he recorded, among other things, “back sprain”.
The “scan” referred to in Mrs Gardiner’s submissions (and in the Arbitrator’s Reasons) as dated 14 November 2006 is presumably the x-ray from Dr S Li dated 15 November 2006. It revealed her to have “minimal lumbar spondylosis with slight scoliosis of the thoracolumbar junction convex towards the left side” and “moderate narrowing of the lumbosacral disc”. There is no medical evidence to suggest that Mrs Gardiner’s employment incident on 28 February 2005 caused any aggravation, acceleration, exacerbation, or deterioration of that condition. The medical evidence is silent on this issue. Dr Jones concluded that Mrs Gardiner sustained a musculo-ligamentous strain to the lumbar spine with radicular spread of pain and Dr Thomson diagnosed a left sacro-iliac joint strain. Neither made any suggestion that Mrs Gardiner had a disease or that the incident on 28 February 2005 had resulted in the aggravation, acceleration or exacerbation or deterioration of a disease.
The evidence that Mrs Gardiner suffered a strain on 28 February 2005 does not of itself support a finding of an injury in the nature of an aggravation of a disease under section 4(b)(ii) of the 1987 Act. There is no persuasive evidence that Mrs Gardiner received an injury in the nature of an aggravation of a disease under section 4(b)(ii).
The submission that the Arbitrator’s findings at paragraphs 25 and 27 of her Reasons are internally inconsistent is not developed with any logical argument and has no basis. At paragraph 25 the Arbitrator dealt with Dr Jones’ report and noted the contents of the scan of “14 November 2006” [sic, 15 November 2006]. After referring to Dr Jones’ opinion, that the traction injury on 28 February 2005 aggravated an underlying disease in Mrs Gardiner’s cervical spine, the Arbitrator correctly concluded that there was no detail of the mechanics of the back injury and no evidence that the underlying disease was aggravated. At paragraph 27, the Arbitrator concluded that, if there was an injury to the lumbar spine, it was a musculo-ligamentous strain.
Mrs Gardiner did not report a low back injury in her claim form of 9 March 2005, as has been submitted on appeal. In the claim form, Mrs Gardiner described the incident and said that when the door came off the runner it “consequently yanked at my left arm, shoulder and lower back”. She described her injury as “left shoulder tendinitis” and the part of the body affected as “left shoulder”, but made no mention of injuring her back.
Contrary to her submissions, Mrs Gardiner did not complain of back pain at all in the early post-injury medical consultations. Dr Nguyen took no history of back symptoms until 26 March 2005. Dr Sekel’s history was not of low back symptoms, but of pain into the left sacroiliac region (the left buttock area) from the time of the incident. That history was incorrect in any event, as it is clear from the contemporaneous evidence (the claim form, Dr Nguyen’s certificates, and the physiotherapists’ notes and diagrams) that Mrs Gardiner did not develop any such symptoms until well after 28 February 2005.
I do not accept Mrs Gardiner’s submission that Dr Sekel’s evidence establishes a continuity of symptoms “in close proximity” to the low back. It does no more than establish a sacroiliac strain about two months after the work incident.
The fact that Mrs Gardiner’s statement of 15 November 2007 made no mention of injuring her back on 28 February 2005 is of considerable importance in the assessment of the claim. A worker’s statement will usually form the basis of any claim for compensation in the Commission. It should set out a clear and detailed account of the worker’s version of the events that have allegedly given rise to the claim. That will include, at the least, a statement of what happened and, in lay terms, what symptoms were experienced at the time of the injury and subsequently. Mrs Gardiner’s evidence is that at the time of the incident she immediately felt a burning sensation down the left side of her “arm and neck and body”. She did not claim to have injured her back on 28 February 2005, or to have subsequently developed symptoms in her back as a result of that incident. Her failure to mention a back injury, or to even mention her back symptoms in connection with the work incident, significantly militates against a finding that she injured her back on 28 February 2005, as is now claimed.
I do not accept that Mrs Gardiner’s failure to mention back symptoms in her statement is consistent with her injury and honesty, as has been submitted. It is consistent with the fact that Mrs Gardiner either did not injure her back on 28 February 2005, or that such injury was so minor as to not warrant a mention in her statement.
I do not accept the submission that the connection between Mrs Gardiner’s on-going back condition and the incident on 28 February 2005 is established by objective, contemporaneous evidence. The contemporaneous evidence was silent about Mrs Gardiner’s back. The ‘objective’ evidence that supports a connection is not identified.
The submission that the type of injury that occurred on 28 February 2005 was one that would lead to a mechanical low back problem is unhelpful. Whether the type of injury was one that would lead to a mechanical low back problem depends on the history of the development of symptoms and expert opinion as to whether those symptoms resulted from the particular injury (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’); Edmonds).
It is true that Dr Rao recorded “tenderness over the left shoulder blade and left lower back” on 7 April 2005, but he also recorded that Mrs Gardiner’s back movements were normal and that his provisional diagnosis was of soft tissue injury to the left shoulder and possible traction injury to the neck. Given the lack of complaint of back symptoms to the physiotherapists until November 2005, at the earliest, and, given the diagnosis in Dr Rao’s next eight certificates, I do not find the entry on 7 April 2005 persuasive in establishing that Mrs Gardiner received a back injury on 28 February 2005.
The submission that the Court of Appeal has cautioned against the use of doctors’ notes as a basis to contradict an injured party’s claim does not assist Mrs Gardiner. No authority is cited in support of this submission, but the decision of Nominal Defendant v Clancy [2007] NSWCA 349 (‘Clancy’) is relevant. In that case Santow JA (Campbell JA agreeing) observed (at [54]):
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive. I do not consider that a detailed contemporaneous report should be treated as inaccurate because it does not find its counterpart in the notes.”
Santow JA added (at [55]) that clinical notes “should not be construed with the minute attention one might give a formal legal document”. That case, however, concerned, among other things, the weight to be attached to a detailed contemporaneous report in circumstances where the content of the report did not match the relevant notes. There is no detailed contemporaneous report from Dr Rao in the present matter and, of even greater importance; there is no complaint of back pain in Mrs Gardiner’s statement. The Commission is left with nothing else but the documentary evidence.
The submission that general practitioners are notorious for not including all complaints made by patients may have had some force if Mrs Gardiner had given evidence that she injured her back on 28 February 2005 and that she complained of that fact to her general practitioner and her physiotherapists. She has not given that evidence. Her statement is silent as to the impact the incident of 28 February 2005 had on her back, and as to her back symptoms in general.
The reference in Dr Rao’s notes to back pain on 13 May 2005 does not, in the absence of some explanation from the doctor, advance Mrs Gardiner’s case. He did not indicate the cause of the pain, or its exact location.
It is true that the report from Figtree Physiotherapy Centre suggests that physiotherapists from that centre had been treating Mrs Gardiner’s back for some time prior to 3 January 2006. However, in the absence of a detailed report setting a full history of when Mrs Gardiner first presented with back pain, the history she gave as to the cause of that pain and the findings on examination, the report of 3 January 2006 is of limited probative value.
Without a proper statement of evidence from Mrs Gardiner, I do not accept that Dr Rao’s entry of 4 August 2005 establishes a continuity of symptoms and consistency of complaint, as has been submitted. The basis on which it is argued that the entry of 4 August 2005 shows some improvement in the symptoms is not explained and I do not accept that submission. Dr Rao’s note, that “initially [Mrs Gardiner] was unable to walk”, is implausible and inconsistent with the evidence that Mrs Gardiner stayed at work for three days after the incident and the contemporaneous evidence.
Even if it is accepted that any doctor who saw Mrs Gardiner after August 2006 received a history of on-going back complaint, that does not overcome the lack of contemporaneous evidence and the lack of evidence from Mrs Gardiner.
The Arbitrator noted that Dr Rao referred to tenderness over the lumbar spine in April 2005 (four or five weeks after the work incident) and added that that symptom was “not referred to in the notes of the next months and the effects of any lumbo-sacral strain arising from the incident appear to have settled down” (Reasons, paragraph 26). She added that it was “some months later that” Mrs Gardiner reported “low back pain and radiculopathy” to Dr Rao and that Dr Rao included “back injury” on the WorkCover certificates. This summary was not accurate (Dr Rao’s notes also referred to back pain on 13 May 2005), but seems to have formed the basis of the Arbitrator’s conclusion that the effects of the musculo-ligamentous strain “had ceased over the months after injury” (Reasons, paragraph 29).
Notwithstanding this error, I do not accept Mrs Gardiner’s submission that there should be a finding that, as a result of the work injury on 28 February 2005, she suffered an injury to her lumbar spine. The evidence on this issue is completely unsatisfactory and unconvincing. For the following reasons, I do not accept that Mrs Gardiner injured her low back at work on 28 February 2005:
(a)Mrs Gardiner carries the onus of proof and her statement is silent as to when, or in what circumstances, her back symptoms developed;
(b)the evidence from her first doctor, Dr Nguyen, is consistent with her having sustained an injury to her left arm and left shoulder and with symptoms spreading to the neck. His later certificates (admitted on appeal) raise the possibility of a lumbar sprain, but set out no history or explanation for that diagnosis and, in the absence of a report from the doctor explaining his opinion, are no more than a bare “ipse dixit” (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’); Edmonds at [130] to [132] and Hevi Lift at [84]) of limited, if any, probative value;
(c)the “Incident Report Form”, completed by Mrs Gardiner on 4 March 2005, described the left shoulder as the body part injured;
(d)whilst the claim form completed by Mrs Gardiner on 9 March 2005 suggested that the cool room door “yanked at” her left arm, shoulder and lower back, it clearly identified her injury to be to her left shoulder. There is no evidence that the claim form was inaccurate or incomplete;
(e)Mr Gray’s “Site of symptoms” diagram, completed on 12 March 2005, identified Mrs Gardiner’s symptoms as being in her head, neck, left shoulder and left arm and made no mention of back symptoms. This diagram was consistent with his report of 17 March 2005 addressed to Dr Nguyen and his report of 5 April 2005 addressed to Dr Rao;
(f)Dr Sekel’s reference to sacroiliac symptoms on 27 April 2005 is not, without more, of any assistance to Mrs Gardiner’s claim. Dr Sekel did not examine Mrs Gardiner’s back and gave no opinion whether she had sustained an injury to her lumbar spine;
(g)Dr Rao’s evidence is limited to his short referral to Dr Ho, in which he expressly referred to Mrs Gardiner sustaining an injury to her left shoulder, his clinical notes, and medical certificates. Whilst his notes do refer to back symptoms on 7 April, 13 May and 4 August 2005, there is no report from Dr Rao to explain his notes or the significance of these entries in relation to the incident on 28 February 2005. Dr Rao’s note of 4 August 2005, that Mrs Gardiner had back pain “since the injury”, is not borne out by an analysis of the contemporaneous evidence and I do not accept it as being accurate. In the absence of a report from Dr Rao (or other appropriate expert evidence), or any evidence from Mrs Gardiner as to when and in what circumstances her back symptoms started, it is impossible for me to draw an inference she injured her back on 28 February 2005, or that her back symptoms have resulted from that incident (Hevi Lift; Edmonds);
(h)Ms Goodsell’s report of 4 August 2005 to Dr Rao made no mention of any back symptoms;
(i)back pain is not mentioned in the physiotherapy material until November 2005. There is no evidence from a physiotherapist setting out a history of when those symptoms developed or explaining the connection between those symptoms and the work incident on 28 February 2005, and
(j)Dr Jones’ history that the “back pain commenced at the time of the accident with the neck pain” is inconsistent with the contemporaneous document referred to above and is not correct. Therefore, to the extent that Dr Jones’ opinion rests on this inaccurate history, the weight to be attached to it is substantially diminished (Makita).
It follows that I am not satisfied that Mrs Gardiner injured her back at work on 28 February 2005 or that her back symptoms have resulted from that incident.
CONCLUSION
Whilst the Arbitrator wrongly determined that Mrs Gardiner injured her lumbar spine on 28 February 2005, having conducted a review on the merits (per Spigelman CJ in Chemler at [28]), I am firmly of the view that, for the reasons given in this decision, the Arbitrator’s determinations in the Certificate of Determination of 1 August 2008 are correct and the claim in respect of the alleged lumbar back injury fails.
DECISION
For the reasons given in this decision, the Arbitrator’s orders made in the Certificate of Determination of 1 August 2008 are confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
4 November 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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