Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads v Bouza
[2007] NSWWCCPD 185
•28 August 2007
WORKERS COMPENSATION COMMISSION
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||
| CITATION: | Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads v Bouza & Ors [2007] NSWWCCPD 185 | |||
| APPELLANT: | Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads | |||
| FIRST RESPONDENT: | Francisco Manuel Bouza | |||
| SECOND RESPONDENT: | Peter Stergiou and Maria Stergiou t/as Taste of Europe Bakery or t/as Hurstville Hot Breads | |||
| THIRD RESPONDENT: | Peter Stergiou and Gerry Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads | |||
| FOURTH RESPONDENT: | Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads | |||
| FIFTH RESPONDENT: | The WorkCover Authority of New South Wales | |||
| INSURERS: | Appellant: Employers Mutual (NSW) limited (on risk from 19.7.2001) | |||
| Second Respondent: Allianz Australia Workers Compensation (NSW) Limited (unknown) | ||||
| Third Respondent: GIO General Limited (on risk prior to 4.11.1997) | ||||
| Fourth Respondent: Uninsured | ||||
| FILE NUMBER: | WCC986-06 | |||
| DATE OF ARBITRATOR’S DECISION: | 21 December 2006 | |||
| DATE OF APPEAL DECISION: | 28 August 2007 | |||
| SUBJECT MATTER OF DECISION: | Whether the evidence supported the Arbitrator’s finding that the last employer/insurer was liable for the award; ‘Injury’; Application of sections 9A, 15 and 16 of the Workers Compensation Act 1987. | |||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||
| HEARING: | 19 July 2007 | |||
| REPRESENTATION: | Appellant: | Edwards Michael Moroney | ||
| First Respondent: PK Simpson & Co | ||||
| Second Respondent: No appearance | ||||
| Third Respondent: Rankin & Nathan | ||||
| Fourth Respondent: No appearance | ||||
| Fifth Respondent: Sparke Helmore | ||||
| ORDERS MADE ON APPEAL: | 1.Time to appeal the Arbitrator’s decision of 13 December 2006 is extended to 16 January 2007. | |||
| 2.Paragraphs 1 to 5 inclusive of the Arbitrator’s ‘Certificate of Determination’ dated 13 December 2006 are confirmed. | ||||
| 3.Paragraph 6 is revoked. | ||||
| 4.The matter is remitted to the Arbitrator at first instance for referral of all the Applicant’s claims for lump sum compensation to an ‘Approved Medical Specialist’ in accordance with these reasons. | ||||
| 5.The Appellant is to pay the costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
By a document titled “ Fourth Amended Application for Determination” filed in the former Compensation Court of New South Wales on 17 December 2003, Francisco Manuel Bouza (‘Mr Bouza’) sought compensation from his employers being either Peter Stergiou, Maria Stergiou, Gerry Koutsioukis, Frank Koutsioukis or Vicki Koutsioukis or a combination of any of those persons as a result of various injuries he claimed to have sustained in the course of his employment.
The proceedings were transferred to the Workers Compensation Commission (‘the Commission’) and an ‘Application to Resolve a Dispute’ was filed in the Commission on 24 January 2006.
The various employers and their insurers are set out in the citation to this appeal.
Mr Bouza was born on 8 October 1944 and is presently 62 years of age. He migrated to Australia from Uruguay in about 1979. He apparently worked as a baker in Uruguay and continued that occupation in Australia from about 1981.
Mr Bouza commenced employment with the “Taste of Europe Bakeries” or “Hurstville Hot Breads” in about 1994.
Mr Bouza claimed that as a result of the ‘nature and conditions’ of his employment with the Appellant, and the Second, Third and Fourth Respondents, for the period 1994 to July 2001, he suffered injuries to his back, left leg and both arms (particularly his shoulders). In proceedings before the Arbitrator, his claim was amended to allege ‘nature and conditions’ from 1 July 1998 to September 2001, together with frank injuries allegedly occurring in May 2001 and on 22 July 2001.
It appears that Mr Bouza continued at work with the Appellant until about 12 August 2001, undergoing arthroscopic surgery on his right shoulder on 13 August 2001. His employment was ultimately terminated on 21 September 2001.
Mr Bouza received weekly benefits of compensation from the Appellant’s insurer, Employer’s Mutual (NSW) Limited (‘EML’) up until February 2003.
In his ‘Application to Resolve a Dispute’, Mr Bouza sought weekly benefits compensation pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) from 18 February 2003 to date and continuing, together with medical expenses and lump sum compensation.
The consensus of medical opinion (to which I will refer in more detail below) was to the effect that Mr Bouza suffered bilateral rotator cuff pathology, the right shoulder being more severe and “irreparably damaged”. Mr Bouza also complained of symptoms in his back and legs as a consequence of his employment and again, I will refer to these issues of ‘injury’ in more detail below.
The parties attended a conciliation/arbitration hearing on 25 May 2006. On 13 December 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.Fifth Respondent Insurer, EMI, to pay the Applicant weekly benefits from 18 February 03 at the maximum Statutory Rate applicable for a worker with a dependant child, with such weekly payments to continue in accordance with the provisions of the Workers Compensation Act 1987.
2.Award for the other Respondents with respect to weekly benefit compensation.
3.Fifth Respondent to pay the Applicant’s s.60 Workers Compensation Act 1987 medical expenses upon production of accounts or receipts.
4.Fifth Respondent to pay the Applicant’s costs as agreed or assessed.
5.This matter to be treated as a complex [sic] pursuant to clause 4.10 of Schedule 6 of the Workers Compensation (General) Regulation 1995.
6.This matter to be referred to an Approved Medical Specialist for the purposes of s.66 lump sum compensation assessment.”
On 16 January 2007, Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads by its insurer, EML, (‘the Appellant’) lodged an appeal against the Arbitrator’s determination.
On 6 February 2007, the WorkCover Authority of NSW (‘WorkCover’) filed a ‘Notice of Opposition to Appeal’. On 7 February 2007, Mr Bouza filed a ‘Notice of Opposition to Appeal’, and on 15 February 2007, Peter Stergiou and Gerry Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads (‘the Third Respondent’) filed its ‘Notice of Opposition to Appeal’.
In proceedings before the Arbitrator on 25 May 2006, Mr Bouza discontinued proceedings against Peter Stergiou and Marie Stergiou t/as Taste of Europe Bakery or t/as Hurstville Hot Breads (‘the Second Respondent’). Accordingly, they are no longer a party to the proceedings but have been named for ease of reference.
Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads (‘the Fourth Respondent’) in respect of the period prior to 19 July 2001 were uninsured. They were not separately represented at the hearing, and WorkCover, the Fifth Respondent, is a party to the proceedings in respect of that period of non-insurance.
On 19 July 2007 the parties attended an oral hearing before me where further submissions were made. No oral evidence was taken at that hearing. In addition, at that hearing, the parties conceded that the Arbitrator’s reference in her ‘Statement of Reasons’ to having taken into account “sworn evidence of Francisco Bouza” was an error, and that no oral evidence was given by Mr Bouza at the hearing before the Arbitrator on 25 May 2006.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of section 352 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’).
The appeal was initially lodged on 10 January 2007 within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act. The Commission issued a Notice on 11 January 2007 rejecting the application for failure to comply with Rule 16.2(4)(b) of the Workers Compensation Commission Rules. The Appellant concedes that the initial application “erroneously identified at Part A2.2 that submissions on threshold issues relating to each appeal were not enclosed”. However, it is the Appellant’s assertion that, the submissions, when read as a whole, were sufficient to satisfy the requirements of the rules. A copy of the Arbitrator’s decision was attached and, as the Appellant points out, it was clear from the Arbitrator’s determination that the amount at issue on appeal satisfied the threshold requirements set out in section 352(2) of the 1998 Act.
In the alternative, the Appellant submits that time should be extended for the filing of the Appeal in the interests of justice between the parties. The Appellant submits that it acted promptly to rectify the situation and re-filed the appeal on 16 January 2007, that there are strong grounds for the appeal and that failure to extend time “will work a substantial injustice against the Appellant”. The Appellant also notes that notice of its intention to seek an extension of time has been provided to all the parties as required by Rule 16.2(12) of the Rules.
No issue is taken by the other parties on appeal to this aspect of the Appellant’s submissions. I accept those submissions and accordingly time to appeal the Arbitrator’s decision of 13 December 2006 is extended to 16 January 2007.
Leave to appeal is granted
THE ISSUES ON APPEAL
The Appellant has identified five grounds of appeal as follows:
“1The Arbitrator erred in concluding that the Worker suffered an injury whilst employed during the period in which EML was on risk.
2.The Arbitrator erred in finding that any injury was received by the Worker on 27 June 2001 [sic – 27 July 2001].
3.The Arbitrator erred in concluding that the Workers’ employment within EML’s period of risk was a substantial contributing factor.
4.In the absence of any finding relevant to the provisions of either section 15 or section 16 of the Workers Compensation Act 1987, the Arbitrator erred in apportioning liability against EML.
5.The Arbitrator erred in finding that the Worker sustained a back injury to the extent that it was relevant to any liability found against EML.”
THE ARBITRATOR’S FINDINGS AND REASONS
In her ‘Statement of Reasons’ dated 13 December 2006, the Arbitrator noted the issues in dispute, summarised the documentary evidence before her, including all parties’ medical evidence, before noting the submissions made by the parties recorded in the transcript of 25 May 2006. Her findings and reasons commence at paragraph 23.
The Arbitrator quite rightly noted that (para 23) “There is no dispute as to the fact that the Applicant has bilateral rotator cuff pathology, with the right shoulder the more serious and irreparably damaged.” The Arbitrator then noted, “When injury occurred and whether there was more than one injury is more difficult to ascertain”. The Arbitrator then referred to the statement of Mr Bouza and the “GP’s clinical notes”. Those she noted were confusing because there appeared to be two extracts in different hands.
After considering the medical evidence, the Arbitrator found that Mr Bouza (para 25) “… suffered a personal injury to his right shoulder on or about 4 June 2001 and another personal injury to the same shoulder on 27 July 2001.” The Arbitrator noted “I accept it was the second injury to his right shoulder which was the more severe and led to the surgery.”
In relation to the left shoulder, the Arbitrator concluded (para 26):
“I therefore find that the left shoulder injury was of gradual onset due to his employment but rendered symptomatic because of his right shoulder injuries some short time after 27 July 2001.”
In relation to the claimed injury to the back, the Arbitrator concluded (para 28):
“I am satisfied from the evidence the Applicant has suffered a back injury due to the nature and conditions of his employment which was rendered symptomatic at the time of the injuries to his right and left shoulders, and consequent on those injuries, commencing some short time after 27 July 2001.”
The Arbitrator then considered the application of Section 9A of the 1987 Act and concluded that (para 30) “The Applicant’s employment was a substantial contributing factor to the injuries to his shoulders and back”.
It was clear that there was considerable difficulty in identifying the correct employer. The Arbitrator noted that Mr Bouza’s group certificate for the year ending 30 June 2001 noted his employer as “Gerry and Vicki and Fotios Koutsioukis (Family Partnership)”. The Arbitrator concluded (para 31):
“It is my view that the names on the Group Certificate are sufficient evidence that Gerry, Vicki and Fotios (Frank) Koutsioukis were the relevant employer. There is no contrary evidence”.
At paragraph 32 of her ‘Statement of Reasons’ the Arbitrator considered the issue of “capacity”. Again, she considered the medical evidence and Mr Bouza’s statement, noting that “his English is limited and he is unable to read or write in either English or Spanish” before determining “for all practical purposes the Applicant in my view is unemployable”.
The Arbitrator then considered the weekly benefits claim, applying the principles set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527, (‘Mitchell’) and ultimately awarded Mr Bouza weekly benefits at the maximum statutory rate “… for a single person with one dependent”.
As to the issue of apportionment, the Arbitrator stated as follows (para 38):
“As noted above, in my view the cause of the incapacity for work was the second shoulder injury on 27.7.01. It was only at this stage that the Applicant decided to undergo surgery because of the severity of the symptoms. On that basis, I have found that incapacity commenced on 27.7.01 within the risk period of the Fifth Insurer, EMI.”
THE SUBMISSIONS AND EVIDENCE
The fundamental issue raised by the Appellant is whether or not the evidence supported the Arbitrator’s findings on the specific issues raised on appeal.
The Arbitrator’s findings on the issues of ‘injury’ and ‘substantial contributing factor’ are essentially findings of fact.
Findings of fact may constitute an error of law in certain circumstances, for example where there is no evidence or insufficient evidence to prove the particular fact. However, a finding contrary to the weight of evidence, even a perverse finding is not an error of law. As Glass JA said in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 151:
“If there is evidence or if there is available inferences which compete for the Judge’s acceptance, no error of law occurs simply because the Judge prefers one version of the evidence to another or one set of inferences to the other, that is his function.”
Glass JA went on at page 156 as follows:
“A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the Trial Judge has misdirected himself, i.e. has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the Applicant suffered an injury on a particular date. Further an ultimate finding of fact, even in the absence of misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made.”
This approach was adopted by the Court of Appeal in Crown Glass & Aluminium Pty Limited v Ibrahim [2005] NSWCA 195 where the Court held that, if there was evidence on which the primary finding of fact could be based, once that evidence was accepted, it was not open to challenge even if it could be described as perverse.
Thus the primary matter for my consideration is whether or not there was adequate evidence to support the Arbitrator’s findings. In submissions before me at the hearing on 19 July 2007, Counsel for the Appellant submitted that there was simply insufficient evidence to find that Mr Bouza suffered an injury on 27 July 2001, such that if that submission was accepted, issues such as ‘substantial contributing factor’ and ‘incapacity’ became effectively irrelevant. It was the Appellant’s submission that Mr Bouza suffered a significant injury to his shoulders in June 2001, prior to EML’s period of risk, and that any reference to ‘injury’ in July 2001 was in effect merely a reference to ‘symptoms’, the primary and indeed only injury having occurred in June 2001.
It is perhaps appropriate then at this point to consider each of the grounds of appeal cited, and the submissions and evidence in relation thereto.
The Finding of ‘Injury’ on 27 July 2001
In his statement dated 4 April 2005 annexed to his application, Mr Bouza stated as follows:
“The working conditions of the bakery were very primitive. It was very hard manual labour intensive work.
Because of the heavy work I was doing … I noticed a gradual onset of pain to my neck, right arm, left arm, back and left leg … I never complained to anybody about my pain as I was scared of losing my job.
Part of my job included lifting heavy (25kg) bags of flour, which I would have to put into the mixer. I would have to remove the dough from the mixer, which was very heavy … there was a lot of manual handling of the dough, and I would work at waist height a lot, so I had to bend and also when cutting the dough I had to use my arms quickly and repetitively.
In early June 2001 … I was taking dough out of mixer when I experienced immediate excruciating pain in my right shoulder … I did not go and see a doctor … I had trouble working, and the pain was getting worse. I couldn’t take it any more, and on or about 8 June 2001, I first saw Dr Basta, because the pain was far too much for me.
Dr Basta … referred me to a specialist Dr Biggs… I saw Dr Biggs for the first time in or around 18 June 2001 and he told me that I needed to have an operation.
I needed to continue to work to support my family as I was the only one in the family working. I continued to work with pain taking pain killers that Dr Basta gave me.
Because I could hardly use my right shoulder because of the pain, I had to use my left shoulder and arm a lot more to lift things, and move the dough. I started to get a lot of pain in my left shoulder too.
On 27 July 2001 I had further excruciating pain to my right shoulder again whilst I was taking dough out of the mixer. I also had a big rise in the amount of pain I was getting in my left shoulder … It was at this point that I decided that I would have to go ahead with the operation and I would return to see Dr Biggs.
I continued working until 12 August 2001.
I underwent an operation by Dr Biggs to my right shoulder on 13 August 2001.
On 21 September 2001 my employment … was terminated.
I received weekly benefits from an insurance company which stopped in or about August 2003.
In respect of pain to my back and left leg, I have always had pain in my back which has gradually got worse over a period of time with my employment from 1994 and I now experience pain radiating from my back into my left leg which now causes me to limp slightly on my left side.
I don’t recall initially telling my GP about pain to my back or left leg because the main and more pressing problems were my right and left shoulders.”
In proceedings before the Arbitrator, two sets of “clinical notes” were in evidence. These were the subject of considerable discussion before the Arbitrator. (See pages 2 to 7 of the transcript of 25 May 2006). There were notes identified as those of Dr Basta. As to the other set of notes, it was speculated that they may have been from another doctor at the same medical centre or perhaps from Dr Biggs or perhaps from a physiotherapist. In any event, they were admitted without objection.
One set of notes contains an entry on 4 June 2001 where Mr Bouza complained of right shoulder pain either from December 2000 or February 2001, the note being somewhat unclear. Following radiological investigations, an entry on 8 June 2001 notes “full thickness tears of both the left and right supraspinatus”.
Nothing in those notes refers to an injury or incident on 27 July 2001.
In another set of clinical notes identified as those of “Dr Basta”, there is an entry on 28 August 2001 as follows:
“27/7/01 DOY . Acute R SH injury last month – lifting heavy pasta – immediate P; tear. Dr Biggs – massive RC repair … arthrosc 13/8/01 …”
These notes were contained in the Reply filed by the Appellant and were identified as clinical notes from Dr Basta.
The Appellant consulted numerous doctors at the request of his own solicitors and those representing the other parties. In short, various histories were given to various doctors. It is noted that Mr Bouza, in his own statement, claimed he could not speak English very well and that “I cannot read in English or Spanish”. Some doctors recorded a history of an incident on 27 July 2001 – others did not. I do not propose to consider at length all the medical evidence. It is perhaps worth noting that a number of doctors commented on the difficulties with communication with Mr Bouza because of his lack of English skills, although it is fair to say that varying histories were given to a number of doctors even with the assistance of an interpreter. It is also fair to say that a number of doctors obtained a history that Mr Bouza had complained of symptoms in his back and shoulders for some time prior to June 2001. Dr Biggs for example noted in his report dated 18 June 2001: “He has had intermittent problems with the right shoulder over many years. This is probably related to the repetitive heavy work that he is required to do.” In a Centrelink report completed by Dr Basta for Mr Bouza, the diagnosis was described as “bilateral full thickness tear of supraspinatus tendons – work related”. The “date of onset” was described as “3 – 2001” and the “date of diagnosis” was noted as “8.6.01”.
Doctors Perrett and O’Reilly both saw Mr Bouza at the request of the Appellant’s insurer. Dr O’Reilly in his report dated 7 August 2002 noted that: “He reported that on 27 July 2001 he developed pain in the right shoulder as a result of lifting dough out of the mixing machine”. It was not clear whether an interpreter was available. Dr Perrett, in his report of 5 July 2002 confirmed that a Spanish interpreter was present and again recorded that “… as far as he is aware, he had no pain in either shoulder until 27 July 2001 when he was moving a large ball of dough from a mixer onto a table at chest level. It is noted that Mr Bouza himself in his statement of 4 April 2005 notes that on both occasions that he was injured, he was taking dough out of mixer. This in itself appears to have created some confusion but overall, there is certainly evidence to suggest that Mr Bouza sustained two separate injuries to his right shoulder.
Doctor Neophyton, surgeon, who saw Mr Bouza on 30 July 2003 at the request of his solicitors also noted a history of an incident on 27 July 2001. Dr Neophyton stated:
“From the outset, the major difficulty was with direct discussion with the patient who spoke very little English. During the discussion through an interpreter there were times when it was quite obvious that the dates contradicted the actual sequence of events. For example, Mr Bouza claims that he was involved in an incident at work on 27 July 2001 and yet the ultrasounds and plain rays of his shoulder were performed on 8 June 2001. I have chosen to continue and overlook this discrepancy on the grounds that it may be a completely genuine mistake.”
This statement is an appropriate summary of the difficulties encountered by a number of the doctors in obtaining an adequate history.
In relation to this evidence, the Arbitrator concluded at paragraph 25 of her ‘Statement of Reasons’ as follows:
“The Centrelink report prepared by Dr Basta notes presentation on 4.6.01 with a history on onset in March 01 and date of diagnosis of 8.6.01 and this tallies with his clinical notes. A gradual onset of problems with a frank injury in early June is relatively consistent with the history provided to Dr Basta and Dr Biggs. I also accept the second injury to the right shoulder on 27.7.01 as reported in the clinical notes of 28.8.01 and in the Applicant’s statement. In coming to this conclusion, I have taken into consideration the fact that the Applicant is Spanish speaking with little or no English and communication with the various medical specialists, and indeed his employers, has been difficult, with the possibility of miscommunication on dates and times and events through no fault of any party. I find therefore that the Applicant suffered a personal injury to his right shoulder on or about 4 June 2001 and another personal injury to the same shoulder on 27 July 2001. Whilst he may have had some relatively minor shoulder symptoms prior to that, it was only at that stage that the symptoms were sufficiently severe from the lifting incidents that he was prompted to think of taking time off work to recover and eventually to seek assistance through surgery. I accept it was the second injury to his right shoulder which was the more severe and led to the surgery.”
In line with a number of authorities to which I have referred, there was in my view adequate evidence for the Arbitrator to conclude that Mr Bouza suffered an injury to his right shoulder on 27 July 2001.
There is no doubt, as the Appellant rightly points out, that at the time Mr Bouza consulted Dr Biggs on 18 June 2001 he had sustained significant damage to both his shoulders. That is not really in dispute. What is in issue is whether there is sufficient evidence to find, as the Arbitrator did, that Mr Bouza sustained a further injury on 27 July 2001. In my view, there was. The Appellant’s submission that a distinction should be drawn “… between a worker’s complaints of symptoms and the true cause and onset of the condition causing the symptoms” is valid, as is the Appellant’s submission that “careful analysis needs to be undertaken so as not to confuse revelation of symptoms with the genesis of the disorder”.
However, the question is simply this: Did the evidence support a finding of injury on 27 July 2001? For the reasons stated, I am of the view that it did, notwithstanding evidence of significant pathology in both shoulders in June 2001. Whilst an alternative finding may have been open on the evidence, the Arbitrator had sufficient evidence, which she clearly identified, to ground the conclusion she reached.
The Appellant also submits that the Arbitrator erred “in concluding that the worker suffered an injury whilst employed during the period in which EML was on risk”. Its submissions in relation to that ground of appeal are “joined” with its submissions on the Arbitrator’s finding of an ‘injury’ on 27 July 2001. It seems to me that this ground is in effect a duplication of ground 2 in the appeal and as I have said, I am satisfied that the Arbitrator did not err in her finding that Mr Bouza sustained an injury on 27 July 2001.
The ‘Substantial Contributing Factor’ Issue
Again, it is not easy to decipher the Appellant’s submissions on this issue. Its submissions on this point are noted as submissions on “grounds 3 and 4”. Separate submissions are made on “ground 5”, the latter appearing to relate to the issue of ‘substantial contributing factor’ with respect to the back injury.
Again, the Appellant’s submissions focus on its argument that there was “no injury” on 27 July 2001. The Appellant submits as follows:
“(a)The Arbitrator abandoned any discussion as to whether EML was liable because of the invocation of section 15 or section 16 relating to disease processes or whether apportionment should proceed upon the basis of section 22 of the Act.
(b) Despite the various histories of shoulder injury and back pain, the
Arbitrator has seized upon EML as the liable insurer solely on the basis and finding that the Worker’s incapacity arose out of the second (right) shoulder injury on 27 July 2001 [see para 38]. But there was no shoulder injury on this date. The tendons were already torn and surgery was recommended to the Worker and it was pending. The Arbitrator has incorrectly assumed that a new injury occurred. What occurred on 27 July [according to the Worker’s statement dated 4 April 2005 para 29] was an episode of pain, no doubt from the tear previously diagnosed by Dr Biggs.
(c) The Arbitrator failed to appropriately understand the distinction between a
condition being substantially contributed to by the Applicant’s employment and an aggravation of that condition.
(d) It is appropriate to first consider the relationship between the definition of
‘injury’ in section 4 of the 1987 Act and the requirements of section 9A of that Act, that no compensation is payable unless employment was a ‘substantial contributing factor’ to that injury. ‘Injury’ is defined by s.4 of that Act to mean ‘personal injury arising out of or on the course of employment’, and whether the employment was a ‘substantial contributing factor’ to the ‘injury’ (s.9A of the 1987 Act). ‘Injury’ as defined by section 4 includes the ‘aggravation … of any disease, where the employment was a contributing factor to the aggravation’.
(e)The Act requires that the issue of contribution to aggravation of disease be considered in these two stages.
(f)EML could not have been implicated in the liability of the claim unless the Arbitrator invoked the provisions of section 15 or section 16 of the Act.”
I have already accepted that there was sufficient evidence upon which the Arbitrator could find that Mr Bouza suffered an injury on 27 July 2001. The consequences of that injury are a separate issue.
As I understand it, the Appellant’s submits that, in the absence of any finding of injury on 27 July 2001, the only basis upon which it could be found liable for Mr Bouza’s injuries was on the basis of a finding of ‘disease’. I should note at this point that Counsel for the Appellant at the hearing before the Arbitrator acknowledged that, in relation to the right shoulder injury “… the evidence of disease is pretty thin on the ground” (page 16 transcript). The Appellant’s submission before the Arbitrator, as on appeal, was that there was insufficient evidence to find that any injury occurred on 27 July 2001 and that Mr Bouza’s ‘incapacity’ resulted from the injury in June 2001.
The Arbitrator determined that Mr Bouza suffered two injuries to his right shoulder namely on 4 June 2001 and 27 July 2001. She also found that “… there was a second injury to his right shoulder which was the more severe and led to the surgery.” The Arbitrator concluded that “the cause of incapacity for work was the second shoulder injury on 27 July 2001” and accordingly, found the Appellant liable for the award.
Did the evidence support this conclusion?
In considering issues of causation, Kirby P in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (‘Bates’) said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase “results from” is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death will not, of itself, be sufficient to establish that such death or incapacity “results from” a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question of whether the death or incapacity “results from” the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.” (at 463G to 464B).”
This issue was considered by ADP Snell in Electrolux Home Products Pty Limited v Milenkoski [2006] NSWWCCPD 321 (‘Milenkoski’) where he was required to consider whether the Arbitrator’s finding as to liability by various parties was supported by the evidence. Having cited the passage from Bates to which I have just referred, he then went on to consider the task of a Presidential Member on review stating as follows (para 57):
“Fleming DP in Babylon Property and Cleaning Services Pty Ltd v Hormoz [2005] NSWWCCPD 21 (‘Babylon Cleaning’) described the function of a Presidential member on review:
“14. The consideration of the evidence and the weight to be attached to the evidence is entirely a matter for the Arbitrator. In the absence of demonstrable error by the Arbitrator in arriving at the decision it should not be disturbed. Presidential review (pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)) is not a rehearing where a matter is heard de novo based on all of the evidence available at a later time (Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616).
15. The errors alleged by the Employer are largely matters of discretionary judgement by the Arbitrator, on the basis of his view of the evidence before him. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has: acted upon a wrong legal principle; allowed irrelevant considerations to influence the decision; made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).”
However, this must now be read in the context of the Court of Appeal decision in South Western Sydney Area Health Service v Edmunds [2007] NSWCA 16 where the Court noted that:
“When informing itself of any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute and that evidence based on speculation and unsubstantiated assumption and unqualified opinions are unacceptable.”
Relevantly, the Court also noted “Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not”.
In my view, there was sufficient evidence to support the Arbitrator’s finding not only of injury to the right shoulder on 27 July 2001 but also of incapacity flowing from this second injury. Adopting a “commonsense evaluation” of the causal chain, it is clear from Mr Bouza’s own statement that he continued to work following the incident in June 2001 albeit in pain and taking pain killers. It is also clear from his statement that Mr Bouza suffered what he regarded as a further injury on 27 July 2001, which he reported to a number of doctors. He stated that he suffered “further excruciating pain to my right shoulder on 27 July 2001” and that “it was at this point that I decided I would have to go ahead with the operation and I returned to see Dr Biggs”.
This was certainly “material” upon which the Arbitrator could find as she did, and it was supported, to some extent, by some of the medical evidence although, as I have said, that was equivocal because of the various inconsistent histories provided by Mr Bouza.
In short, the Arbitrator’s finding of fact that the “cause of the incapacity for work was the second shoulder injury on 27 July 2001” was open to her on the evidence before her. Whilst, as I said earlier, I accept that an alternative conclusion may have been open to the Arbitrator on all of the evidence before her, my task on review is to determine whether any error was made by the Arbitrator in her analysis of the evidence before her and the conclusion she reached.
As ADP Snell said in Milenkoski (para 54):
“Incapacity can have multiple causes. Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 1 NSWLR 435 involved a worker who suffered injury with employer A, subsequently suffered aggravation with employer B, and then claimed against A, that his incapacity subsequent to the aggravation was caused in the relevant sense by the injury with A. In the Court of Appeal Reynolds JA said:
“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.”
In the present case, whilst it may have been open to the Arbitrator to conclude that the first injury in June 2001 was causative of incapacity, it was equally open to her to find that the second injury was the ultimate cause of incapacity, and satisfied the relevant causation test set out in Bates to which I have referred previously.
Having accepted that there was adequate material to ground the Arbitrator’s findings, the issue of ‘disease’, so far as injury to the right shoulder is concerned raised by the Appellant is not relevant. The Arbitrator found that Mr Bouza suffered an injury within the meaning of section 4 of the 1987 Act and that his employment was a substantial contributing factor to that injury within the meaning of section 9A of the 1987 Act.
The impact of section 9A was considered at length by the Arbitrator at paragraphs 29 and 30 of her ‘Statement of Reasons’ where she said as follows:
“29. Having satisfied myself that the Applicant’s injuries arose out of his employment with the Respondent as a baker, I need to now consider s.9A of the Act … To decide on this issue I must take into account factors such as the time and place of the injury, the nature of the work performed and the particular tasks of that work, the duration of the employment and the probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker’s like [sic], if he or she had not been at work or had not worked in that employment.
30.The overwhelming medical evidence is that the Applicant suffered bilateral rotator cuff injuries because of the heavy and repetitive work, often with his arms above shoulder height lifting heavy machinery or ingredients, during the course of his employment as a baker. The two frank injuries occurred when he was lifting heavy dough from a mixer, and holding his arms above waist height. The left shoulder injury occurred because of those same duties, although the rotator cuff tear did not become symptomatic until the more severe and traumatic injuries to the right shoulder. Dr Davis and Dr Perrett are of the view that the shoulder injuries are consistent with normal degenerative change and that there was a pre-existing degenerative condition prior to the two injuries. However all other medical evidence notes rotator cuffs [sic] tears with no suggestion of pre-existing degenerative change and I prefer those reports as being consistent with the history of little or no symptoms until the first injury in early June 01, leading to greater severity of symptoms at the time of the second right shoulder injury. The history of the Applicant’s back injury is less clear, although Dr Bhattacharyya has diagnosed a soft tissue injury related to the nature and conditions of employment. There is no suggestion from any of the specialists that there was a pre-existing back condition. Consequently, I find that the Applicant’s employment was a substantial contributing factor to the injuries to his shoulders and his back.”
The Arbitrator’s findings are consistent with the totality of the evidence before her, in particular, the statement of Mr Bouza as to the nature of his duties. The Arbitrator properly considered the factors relevant to the issue of ‘substantial contributing factor’ as set out in section 9A of the 1987 Act, and I can see no error in her determination on this issue.
The Finding of Injury to the Back
The Appellant submits that “The Arbitrator erred in finding that the worker sustained a back injury to the extent that it was relevant to any liability found against EML”. The Appellant refers to paragraph 30 of the Arbitrator’s ‘Statement of Reasons’ to which I have referred above. The Appellant then submits:
“Whilst she acknowledges that little evidence is available to determine the back condition definitively, she notes a history of pain dating back to 2000 [para 27]. However at para 38 she seems to have resolved the issue by reference to a shoulder injury only on 27 July 2001. The back appears not to have been considered relevant in determining liability against EML. However assuming the back condition to have exercised an important part of the Arbitrator’s analysis, she has failed to state whether it was a frank injury occurring within the EML risk period or whether it was an aggravated disease. Again, she has chosen to ignore important material. No attempt has been made to trace the onset of the condition so as to make it plain as to why EML might be liable.”
In his statement of 4 April 2005 Mr Bouza simply said:
“In respect of pain to my back and left leg, I have always had pain in my back which has gradually got worse over a period of time with my employment from 1994 and I now experience pain radiating from my back into my left leg which now causes me to limp slightly on my left side”.
He also stated: “I don’t recall initially telling my GP about pain to my back or left leg because the main or more pressing problems were my right and left shoulders.”
The clinical notes are poor copies and difficult to decipher, and I have been unable to locate any reference to back pain or injury in those notes. Nonetheless, most of the doctors Mr Bouza consulted obtained some history of complaints of back pain. Dr Bhattacharyya saw Mr Bouza on 16 February 2004 at the request of WorkCover. He obtained this history:
“The patient tells me that approximately 2 – 3 years after he started work at the Taste of Europe Bakery he started getting pain in his back and this pain did not go away after a night’s rest. He always had some degree of pain in the lower back area. However, he did not seek any medical attention nor did he take any medication.”
Dr Bhattacharyya’s diagnosis was “soft tissue injury to the lumbar spine” which he thought needed to be investigated since “he has had no x-rays or any other investigations”. Dr Bhattacharyya opined that Mr Bouza’s employment was a substantial contributing factor to the “injury”, that “injury” being a reference to right shoulder, left shoulder and lumbar spine.
Dr Carr saw Mr Bouza on 13 May 2003 at the request of the Third Respondent. In his report of 2 September 2003 Dr Carr stated “This man told me that he had complained of some lumbar back ache and referred pain into the left buttock and upper thigh in the last three years, i.e. from the year 2000 until 2003. There was no history of any back injury in relation to his shoulder complaints, which began in May/June 2001”. Dr Carr concluded that:
“It is apparent that he had back pain for the last three years and presents with low- grade nuisance mechanical back pain aggravated by sitting, with some referred pain into his left thigh. There was no history of specific injury to his back, or back symptoms in the period of GIO’s employment from 1 January 1994 to 4 November 1997”.
Dr Carr was of the view that Mr Bouza did not require any further investigation for his back “at this stage”. I note however that Dr Carr concluded: “His employment has been a substantial factor in his current complaints with respect to this right shoulder and probably his back.”
Dr O’Reilly saw Mr Bouza at the request of the Appellant. In his report of 7 August 2002 he noted that “He may also suffer intermittent mechanical low back strain although there was no evidence of that at examination today.”
Dr O’Reilly then stated: “These conditions are consistent with the a history of repetitive heavy lifting in the course of his work as a baker of the past 40 years.” The “conditions” to which Dr O’Reilly referred were the bilateral tears in each shoulder and the “intermittent mechanical low back strain”.
It was only Doctors Perrett and Davis who discounted any impact of employment on any back condition.
I accept that the Arbitrator’s analysis of the injury to the back was perhaps not as “plain” as it could have been however, the Arbitrator’s primary finding set out in paragraph 28 of her ‘Statement of Reasons’ that:
“I am satisfied from the evidence that the Applicant has suffered a back injury due to the nature and conditions of his employment which was rendered symptomatic at the time of the injuries to his right and left shoulders, and consequent on those injuries, some short time after 27 July 01”
was appropriate given the totality of the evidence.
This finding is not particularly clearly expressed and on one reading, seems to suggest that the back condition was somehow consequent upon the shoulder injuries. That was not the evidence, and that proposition is not supported by the medical evidence. However, the Arbitrator’s primary finding that Mr Bouza suffered a back injury “… due to the nature and conditions of employment …” is certainly consistent with the totality of the medical evidence.
I do not regard the Arbitrator’s statement and findings in relation to back injury as fatal to her determination of the claim for weekly benefits for reasons I shall refer to more full below. As I see it, the Arbitrator’s reference to “27 July 2001” was in effect a reference to a ‘notional date of injury’ or ‘deemed date of injury’ in accordance with sections 15 and 16 of the 1987 Act, but she has failed to continue her analysis of those sections in relation to her primary finding set out in the preceding paragraph.
The same could be said of the Arbitrator’s findings in relation to the injury to the left shoulder, but this is not specifically addressed in the appeal. As I have said, the Appellant’s contention was that there was in fact no injury on 27 July 2001, merely a manifestation of symptoms. It was clear from the medical evidence that there was significant pathology in the left shoulder when Mr Bouza consulted Dr Biggs on 18 June 2001. The Appellant’s submissions do not specifically address the Arbitrator’s findings in relation to the left shoulder other than to the issue of ‘injury’ on 27 July 2001.
It is clear from the totality of the evidence that Mr Bouza’s principal complaints have always been in relation to his right shoulder which appears to be the most significant injury, Dr Biggs noted that “Mr Bouza has an irrepairable massive rotator cuff tendon tear of the right shoulder.” That was the subject of arthroscopic surgery on 13 August 2001.
As I have said, I accept the Appellant’s submissions to the extent that the Arbitrator’s findings in relation to the back and left shoulder are not clearly expressed however, reading the ‘Statement of Reasons’ as a whole, the principal findings are supported by the evidence. In relation to the left shoulder, this was considered by the Arbitrator at paragraph 26 of the ‘Statement of Reasons’. She noted that:
“With respect to his left shoulder, there appears to be no evidence of a frank injury, simply a gradual onset of symptoms after he injured his right shoulder, even though investigations had also disclosed a full thickness tear of the supraspinatus tendon. In the Applicant’s statement he notes that his left shoulder symptoms became apparent between the time of the right shoulder injury and the subsequent surgery, when he was still working and trying to favour his right shoulder.”
The Arbitrator then went on to consider the medical evidence before concluding as follows:
“I am inclined to the view that the cause of the left shoulder injury and the reporting of same was similar to the right shoulder, in that the Applicant did not mention it to his doctor until it became so severe that he thought that he required some treatment. But he did mention it to the medico legal specialists when they asked what symptoms he was experiencing because he was experiencing some symptoms. I therefore find that the left shoulder injury was of gradual onset due to his employment but rendered symptomatic because of his right shoulder injuries some short time after 27 July 2001.”
Although it was submitted that the Arbitrator’s conclusions and findings in relation to the back injury in particular were “unsafe” in my view they have no impact on the issue of incapacity and weekly payments. It is quite clear from the Arbitrator’s consideration of the weekly payments claim in paragraphs 32 and 33 of the ‘Statement of Reasons’ that Mr Bouza’s incapacity is principally and fundamentally as a result of the injuries to his right shoulder. In his statement, Mr Bouza said:
“I have a sore shoulder which stops me from doing baking work, which is what I have done for most of my life. I can only do manual work, but my injury (my emphasis) prevents me from doing that. My English also makes it very hard to secure employment.”
Further, it is noted that Mr Bouza ceased employment for the purposes of undergoing surgery of his right shoulder. There is no evidence that he ceased employment because of injuries to his back or left shoulder.
Although references were made to difficulties with his back and left shoulder, it is clear that his principal incapacitating injury is the right shoulder.
As I said earlier, although no specific reference was made by the Arbitrator to the provisions of sections 15 and 16 of the 1987 Act, it is clear from her primary findings contained in paragraphs 25 and 28 that those provisions ought be invoked in relation to the injuries to the left shoulder and to the back and the Arbitrator erred in not applying those sections to determine the deemed date of injury in respect of the back and left shoulder. The Arbitrator’s finding at paragraph 41, that “… On 27 July 01 Mr Bouza sustained injury in his left shoulder and back arising out of or in the course of his employment as a baker employed by Gerry, Viki and Fotios (Frank) Koutsioukis…” is inconsistent with those primary findings to which I have referred. In line with my functions on review, I consider that the finding in paragraph 41 should be revoked and the following finding substituted:
“As a result of the nature and conditions of his employment with the Respondents, Mr Bouza suffered an aggravation of a disease process in his left shoulder and back within the meaning of section 16 of the 1987 Act, the deemed date of injury being 27 July 2001 and his employment was a substantial contributing factor to these injuries”
For the reasons stated above, I am satisfied that paragraphs 1 to 5 inclusive of the Arbitrator’s ‘Certificate of Determination’ are supported by the evidence and ought be confirmed.
Given, the Arbitrator’s error the appropriate course is to revoke order 6 and remit the matter to the Arbitrator at first instance for referral of all Mr Bouza’s claims for lump sum compensation to an ‘Approved Medical Specialist’ in accordance with these reasons.
The Adequacy of Reasons Issue
Although not identified as a particular ground of appeal, the Appellant submits that the Arbitrator’s ‘Statement of Reasons’ is inadequate. In the Appellant’s submission, “she has fundamentally failed to set out her material findings of fact and the evidence upon which those findings were based. She has omitted dissertation of the relevant law and has failed to explain its application to the facts of the worker’s case.”
It is now well established that an Arbitrator is not required to give lengthy and detailed reasons since to do so would be unreasonable and inconsistent with the objectives of the Commission. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56). Nonetheless, as Mahony JA said in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247:
“Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted ... it is necessary that the essential grounds upon which the decision rests should be articulated”.
In the present case, I am satisfied that the Arbitrator’s reasons, save for her findings in relation to the back and left shoulder injuries are adequate and in accordance with the requirements of the 2006 Rules, and that she has adequately apprised the parties of the essential grounds upon which her decision was based.
Under the heading “Conclusion” in the Appellant’s submissions, the Appellant also submits that “the Arbitrator’s reasoning process in relation to the section 40 award was both flawed and inadequate, and amounts to an error of law”.
On the contrary, I consider the Arbitrator’s determination in relation to the weekly award was thorough and detailed, and fully complied with section 40 of the 1987 Act and in particular, Mitchell’s case.
CONCLUSION
I am not persuaded that the Appellant has demonstrated any error by the Arbitrator in relation to her finding of a frank injury on 27 July 2001. Accordingly, I am satisfied that the Arbitrator has not erred in concluding that Mr Bouza’s employment with the Appellant during EML’s period of risk was as substantial contributing factor to that injury.
I am also satisfied that the Arbitrator’s primary findings in relation to injuries to the left shoulder and back were consistent with the totality of the evidence, namely, her findings that the injury to the left shoulder “… was of gradual onset due to his employment but rendered symptomatic because of his right shoulder injury some short time after 27 July 2001” and that the injury to the back was sustained “… due to the nature and conditions of his employment …”
Given my findings, liability for the award should rest with EML.
The Arbitrator’s reasons were adequate in the context of her task, and her calculation of the section 40 award both proper and considered.
DECISION
Time to appeal the Arbitrator’s decision of 13 December 2006 is extended to 16 January 2007.
Paragraphs 1 to 5 inclusive of the Arbitrator’s ‘Certificate of Determination’ dated 13 December 2006 are confirmed.
Paragraph 6 is revoked.
The matter is remitted to the Arbitrator at first instance for referral of all the Applicant’s claims for lump sum compensation to an ‘Approved Medical Specialist’ in accordance with these reasons.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
28 August 2007
I 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
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