Gorge v Paramount Global Protection Pty Limited
[2009] NSWWCCPD 67
•12 June 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Gorge v Paramount Global Protection Pty Limited [2009] NSWWCCPD 67 | ||||
| APPELLANT: | Mina Samy Gorge | ||||
| RESPONDENT: | Paramount Global Protection Pty Limited | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A3-2357/08 | ||||
| ARBITRATOR: | Mr J. McGruther | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 March 2009 | ||||
| DATE OF APPEAL DECISION: | 12 June 2009 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; delay in onset of back symptoms | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | PK Simpson & Co | |||
| Respondent: | Sparke Helmore Lawyers | ||||
| ORDERS MADE ON APPEAL: | Paragraphs 1, 3 and 4 of the Arbitrator’s determination of 6 March 2009 are confirmed. Paragraph 2 of the Arbitrator’s determination is revoked and the following order made in its place: “2. The claim for hospital and medical expenses for treatment for the applicant worker’s alleged back injury is dismissed.” Each party is to pay his or its own costs of the appeal. | ||||
INTRODUCTION
This case raises an issue of causation; namely, whether the worker’s back symptoms that developed approximately two (or more) months after an assault resulted from that assault.
BACKGROUND
The worker, Mr Gorge, started work as a security guard with Paramount Global Protection Pty Limited (‘Paramount’) in September 2005. On 26 March 2006 he was working at the Beach Road Hotel at Bondi Beach when a customer punched him in the face causing him significant facial and dental injuries.
Mr Gorge was taken to St Vincent’s Hospital on the evening of the assault and attended on his general practitioner, Dr Gerges, the following day. Dr Gerges certified him unfit for work due to a “deep laceration on [the] lower lips, loose lower and upper teeth”. Mr Gorge came under the care of Dr Ishak, dental surgeon, on 28 March 2006. Dr Ishak treated him for the complete avulsion of the upper right central and lateral incisors.
Paramount sent a notification of injury form to its workers’ compensation insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’), within days of the incident. The claim was accepted and compensation payments commenced.
Mr Gorge returned to work on 3 May 2006, but his employment was terminated after about ten days because of his inability to communicate as a result of his facial injuries.
On 25 August 2006, Mr Gorge came under the care of a different general practitioner, Dr Ong, at the Hurstville Railway Medical Centre. He complained to Dr Ong that over the previous few months he had noticed left lower limb sciatica and had developed low back pain as well in recent weeks. A CT scan on 28 August 2006 revealed a left sided disc protrusion at L4/5.
On 12 February 2007, CGU advised that it disputed liability for the alleged back injury.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 2 April 2008, Mr Gorge sought weekly compensation from 26 January 2007, lump sum compensation in respect of a 12 percent whole person impairment, compensation for pain and suffering, and hospital and medical expenses.
At the first arbitration on 3 June 2008, the claim for weekly compensation was discontinued and submissions were heard as to whether Mr Gorge injured his back on 26 March 2006, or merely suffered facial and dental injuries on that day. The Arbitrator found in favour of Mr Gorge in a Certificate of Determination issued on 5 June 2008.
By an appeal filed on 3 July 2008, Paramount sought leave to challenge the Arbitrator’s determination. That appeal was successful and in a decision delivered by Acting Deputy President Candy on 30 October 2008, the Arbitrator’s determination was revoked and the matter remitted to another arbitrator for determination afresh in accordance with the reasons in the appeal decision.
The matter came before Arbitrator McGruther for a second arbitration on 20 February 2009. The matter proceeded on that day with lengthy submissions from both sides, but again no oral evidence was taken.
In a reserved decision delivered on 6 March 2009, the Arbitrator found that Mr Gorge had not discharged the onus of proof and had not established that he injured his lumbar spine at work on 26 March 2006. The Commission issued a Certificate of Determination on 6 March 2009 in the following terms:
“The determination of the Commission in this matter is as follows:
1.The claim made under s66 of the Act for injury to the lumbar spine with reference to a contended date of injury of 26 March 2006 is not found and is dismissed.
2. The claim made under s60 of the Act is dismissed.
3. It follows that the claim made under s67 of the Act is dismissed.
4. There is no order as to costs.”
By an appeal filed on 27 March 2009, Mr Gorge seeks leave to appeal the Arbitrator’s determination.
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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in finding that Mr Gorge did not injure his lumbar spine at work on 26 March 2006;
(b)in misdirecting himself on the medical evidence;
(c)in considering the evidence of Dr Ong with respect to Mr Gorge having had no prior complaints of back pain;
(d)in not considering Mr Gorge’s explanation that his back pain was not great at first and he was concerned with having the extensive treatment to his teeth;
(e)in accepting without reservation Paramount’s submissions summarised at paragraph 26(i) of the Arbitrator’s Statement of Reasons for decision (‘Reasons’), and
(f)in failing to understand that when Dr Mahony considered the “masking of the back injury” by the facial injuries he was not talking about a trivial injury.
THE EVIDENCE
There are two statements in evidence from Mr Gorge. The first dated 23 March 2008 and the second dated 18 November 2008. There is a third statement from Mr Gorge (dated 20 February 2009, but unsigned) attached to an Application to Admit Late Documents filed on 20 February 2009. This application did not reach the Arbitrator until 23 February 2009 and was not tendered.
Mr Gorge’s evidence is that he was “king-hit” by a customer at the Beach Road Hotel at Bondi Beach on the evening of 26 March 2006. He suffered injuries to his face and teeth and was taken to St Vincent’s Hospital and was allowed to go home at about 2 or 3am the following morning. He saw Dr Gerges on the morning of 27 March 2006 and was certified unfit for work as a result of his facial and dental injuries. Mr Gorge returned to work on 3 May 2006 and about nine or ten days later he was told that he was not required because he was unable to communicate as a result of his facial injuries.
In his first statement, Mr Gorge said that the assault knocked him off balance but he managed to stop himself from falling to the ground. In his second statement, he said:
“At the time I was assaulted, I was knocked off balance and stumbled. I did not fall, but, rather, with an effort, I managed to stop myself from falling.”
Mr Gorge’s first statement does not clearly state when his back symptoms commenced, but refers to his attending on Dr Ong about pain in his lower back on 25 August 2006. He said he had problems “before this but had not thought that it was important and did not mention it to any of the doctors.”
His second statement added that:
(a)his first priority was his facial and dental injuries, which were a real concern to him;
(b)he noticed low back pain approximately two months after the injury. He took nurofen but did not seek medical attention because he thought the pain would go away;
(c)he had no other accidents after the assault on 26 March 2006 that could have caused his back problems, and
(d)he believed that the assault caused his back problems.
Mr Gorge completed a worker’s compensation claim form on 26 June 2006. Under “Description of Injury,” the following words appear “two broken teeth and split lip”. The claim form made no mention of a back injury or symptoms.
He experienced acute low back pain in January 2007 and was taken to St George Hospital where he was admitted until 30 January 2007.
In April 2007 he started work with ECS International as a security guard and he remains working about 25 hours per week with that organisation. As at the time of his latest statement he continued to complain of constant back pain that was aggravated by standing, walking or lifting. He also complained of pain in his left leg on standing or walking for more than one hour.
Mr Gorge’s Medical Evidence
Dr Gerges’ clinical notes are in evidence. They reveal that Mr Gorge attended for treatment on 32 occasions between 27 March 2006 and 30 October 2006. Dr Gerges’ notes make no reference to any back pain until 30 October 2006. The entry on that day reads:
“c/o back pain & went to hospital.
has Hx of back pain since August & disc prolapse as he didn’t have any problem [indecipherable] his back for NSAID”
Mr Gorge saw Dr Ong on 25 August 2006. Dr Ong recorded the following history in his report of 25 November 2006:
“He said that over the previous few months, he had noticed left lower limb sciatica discomfort and later had noticed development of low back pain as well, in the recent weeks. He informed me that he had jolted his lower back in an incident when he was assaulted at work, in March 2006. He works as a security man. Apparently he said he was punched on [sic] his face which had broken his teeth in the incident. He had sought medical treatment regarding his facial injury with another doctor, soon after the alleged assault. His facial injuries have now fully settled.”
Dr Ong added that Mr Gorge did not fall onto his back when he was assaulted and did not have significant low back complaints immediately after the assault. It was “only after a few months later that he noticed lower back discomfort. In the past he had been well with no other lower back injury.”
A CT scan on 28 August 2006 revealed an L4/5 left mid-line disc protrusion.
On the issue of causation, Dr Ong stated:
“It was difficult to be fully certain on the cause of his lumbar disc prolapse. It was possible that the initial injury was in March 2006, when he was assaulted. It could have worsened in the course of time with his daily activities, particularly working as a Security workman. He was also an overweight man too, with the worsening perhaps leading to more protrusion that eventually he started noticing problems to his lower back.”
Dr Ong referred Mr Gorge to Dr Rosenberg, orthopaedic surgeon. There is no evidence from Dr Rosenberg, but he has submitted a letter signed by his secretary and dated 26 November 2008 stating that he did not wish to provide reports.
Mr Gorge attended at St George Hospital’s emergency department on 28 October 2006 because of his back pain. A report from the hospital’s registrar dated 29 October 2006 records:
“Presenting problem was BACK PAIN-NON TRAUMATIC BENT OVER TO PICK SOMETHING UP TONIGHT 1800HRS. HX BACK PROBLEMS IN AUGUST WITH BULGING L3/L4 AND MIDLINE DISC PROTRUSION L4/L5.
The diagnosis was BACK PAIN
Acute on chronic lumbar back pain.
Obese.
Hx of lumbar disc protrusion noted.Reg Panadeine forte and prn [sic] ibuprofen advised. Discharged with advice regarding bed rest and physio and wt loss when he is pain free.”
On 31 October 2006, Dr Mahony referred Mr Gorge to St George Hospital Physiotherapy Department for a short wave ultrasound and lumbar traction.
Dr Gerges reported to CGU on 10 November 2006 that “a punch on the face had produced a disc prolapse due to aggravating a potentially irritable back according to Dr Mahony[’s] assessment (orthopaedic specialist) dated 01/11/2006”.
Mr Gorge saw Dr Ong again on 23 November 2006 when he advised that his sciatica had settled, but he continued to have low back pain. On examination, Mr Gorge had a normal gait, negative slump test and intact lower limb reflexes. He remained overweight and was advised to again see Dr Rosenberg if his symptoms did not continue to improve. Dr Ong concluded his November 2006 report by stating “The cause of his current low back injury may be related to his injury that occurred in March 2006, as he has described.”
Dr Mahony reported to Mr Gorge’s solicitor on 28 November 2008. Responding to a letter from the solicitors (not in evidence), Dr Mahony said:
“It appears that the prominent injuries at the time were injuries to his teeth and a laceration to his lower lip which were appropriately treated, however, Mr Gorge informed me that 1-1.5 months following the assault he noticed pain in his low back.
He gave his stated age as 32 years and in the absence of any congenital abnormalities, one would have to consider his condition to be associated with post-trauma producing teeth, lower lip and back symptoms, however, it is reasonable that priority was given to his teeth and lower lip condition at the time of the incident.
I would consider his back pain to be associated with the assault on the 26th March 2006 and produced a discogenic lesion at the L4/5 level and left L5 nerve root irritation.”
Mr Gorge was admitted to St George Hospital on 19 January 2007. The administrative summary from the hospital’s records reveal that he complained of “low back pain for the past 9/12”. The entry “9/12” appears to have been written over “9/52”. The entry continues:
“He was assaulted in March ’06. Mild back pain since Aug ’06 worsened LBP [with] frequent exacerbation [with] numbness (L) leg”
At the request of his solicitors, Mr Gorge attended on Dr Medhat Guirgis, orthopaedic surgeon, in 2007. The doctor’s report is dated 13 May 2007 but it does not indicate when Mr Gorge first attended. Dr Guirgis took a history of the assault and that “some two months after the incident he started developing gradual onset and progressive cause [sic] of pain and stiffness in his lower back”. That pain gradually and steadily worsened and started to shoot down the left leg involving the left buttock, back and outer border of left thigh to the foot with tingling and pins and needles in the foot. Initially, it did not bother him much but as time passed he started developing repeated acute episodes. The doctor concluded that Mr Gorge had sustained “post-traumatic mechanical derangement of the lumbar area of the spine” as a result of the assault, which caused an injury to the L4/5 intervertebral disc.
Paramount’s Medical Evidence
CGU qualified Dr James Evans, orthopaedic surgeon, who examined Mr Gorge on 7 December 2006. In his report of 8 December 2006, Dr Evans took a detailed history of the incident on 26 March 2006. He recorded that Mr Gorge was dazed by the punch and was “knocked down but did not fall completely”. In respect of Mr Gorge’s back symptoms, Dr Evans recorded:
“He says about two months after the incident he noticed low back pain but no pain anywhere else. He took nurofen but did not seek any medical help; he thought that the back pain was not necessarily anything special and seemed to go away. After a month and a half or so, symptoms in the lower back returned. Again he sought no medical help but took more nurofen.”
Dr Evans also recorded that Mr Gorge has had no previous problems with his back or any other work injuries.
Under “Opinion,” Dr Evans recounted the circumstances of the assault and added:
“The nature of the injury where he stumbled without completely falling, is such that it could give him a low back injury. However, he did not notice any low back problems for about two months after the injury he says.”
In answer to the question “A diagnosis and whether you consider that the injury is consistent with the history provided,” Dr Evans responded:
“The diagnosis is left-sided disc prolapse L4/5 confirmed by a CT scan causing back pain and left thigh pain. The injury is entirely consistent with the history provided except for the time lapse. The type of injury sustained could well have provoked the disc prolapse since a stumble without a complete fall, but, rather, with an effort at righting oneself, is a potent cause of disc prolapse.”
In answer to the question “Is employment a substantial contributing factor to the injury? If so, how and has it now ceased to be related to employment?” the doctor responded:
“It is with some reluctance that I have to say that employment is probably not a substantial contributing factor to his injury given the time lapse of at least two months between the injury and the onset of low back symptoms.”
In a supplementary report dated 19 January 2009, prepared in response to a request from Paramount’s solicitors (not in evidence), Dr Evans stated:
“In response to your letter of 09/01/2009, it appears clear that Mina Gorge did not injure his back in the assault on 26/03/2006.
This opinion is based upon the additional material you sent me, particularly the evidence from Dr Ong which states that back symptoms appeared a few months after his injury of 26/03/2006 and the initial claim form stated that there were two broken teeth and a split lip but no mention was made of back pain and because Dr Gerges, who saw him on thirty occasions, made no mention of any lumbar symptoms until 30/10/2006.”
THE ARBITRATOR’S REASONS
In a comprehensive 25 page decision, the Arbitrator carefully considered the evidence, the issues in dispute, the parties’ submissions, the Acting Deputy President’s decision in the first appeal, and concluded (at [45]):
“Thus, in view, even on the evidence as is freshly presented, there does not appear to me to be materially reliable medical or other, evidence which would obtain the safe conclusion, on the balance of probabilities, that the disc prolapse has its probability of origin in the traumatic incident of 26 March 2006 itself.”
The Arbitrator added:
(a) it was insufficient for Mr Gorge to simply and broadly aver that “there is no other explanation” (Reasons, at [46]);
(b) the expressions used by Dr Evans were not matters that materially assisted Mr Gorge in “attaining the relevant evidentiary standard of causal connection” (Reasons at [46]);
(c) he was left “somewhat short of evidence of causal connection to the requisite evidentiary standard” (Reasons, at [52]);
(d) he preferred the “reportages” of Dr Evans to that tendered on behalf of Mr Gorge (Reasons, at [53]);
(e) Mr Gorge has not satisfied the onus resting on him to establish, on the balance of probabilities, that there is a causal connection of the lumbar injury to the incident on 26 March 2006 (Reasons, at [56]), and
(f) he was not satisfied that Mr Gorge had satisfied the onus of proof (Reasons, at [63] and [65]).
SUBMISSIONS, DISCUSSION AND FINDINGS
It is submitted on behalf of Mr Gorge that:
(a) the Arbitrator misdirected himself on the medical evidence and he failed to consider Dr Evans’ report of 8 December 2006 where the doctor specifically stated that Mr Gorge’s injury to the lumbar spine could have been caused traumatically. The Arbitrator failed to consider the totality of Dr Evans’ reports and the doctor’s opinions;
(b) the Arbitrator ignored why Dr Evans, without reason, ignored his own finding that the back injury was consistent with a traumatic incident and that there is only one traumatic incident recorded;
(c) the Arbitrator failed to consider all the medical evidence, including the hospital notes from St George Hospital and Dr Ong’s report;
(d) the Arbitrator erred when considering the evidence in Dr Ong’s report with respect to there being no prior complaints of back pain. Mr Gorge’s statement should also have been considered with Dr Ong’s evidence and, when read together, the conclusion must be that there were no complaints of pain or traumatic injury to the back before the injury on 26 March 2006;
(e) the Arbitrator erred in not considering Mr Gorge’s explanation that his back pain was not great at first and he was concerned with having the extensive treatment for his teeth, and
(f) the Arbitrator erred in accepting, without reservation, Paramount’s submissions, and failed to understand that Dr Mahony, when considering “masking” of the back injury by the facial injuries, was not talking about a trivial injury.
I do not accept the above submissions. The expert and lay evidence tendered on behalf of Mr Gorge has not adequately explained the significant delay between the assault on 26 March 2006 and the development of back symptoms some time later. The time lapse between the assault and the start of Mr Gorge’s back symptoms was substantial and I have found Mr Gorge’s evidence on this critical issue to be most unsatisfactory. He made no mention in his first statement as to when he first experienced back symptoms. The evidence in his statement of 18 November 2008 is that the time lapse was “approximately two months”. According to Dr Mahony’s history, the time lapse was “1-1.5 months”. Other evidence, however, suggests that the time lapse was much longer. Dr Ong’s history suggests that the time lapse may well have been as long as four months, with the back pain developing in early August. Dr Ong’s history is consistent with the notes from St George Hospital that the back symptoms commenced in August 2006. The absence of any reference to back symptoms in the claim form completed by Mr Gorge on 26 June 2006 also supports the conclusion that his back symptoms did not develop within six to eight weeks of the assault and seriously undermines his assertion that they did. Having regard to the whole of the evidence, I find that Mr Gorge’s back symptoms did not develop until a date after 26 June 2006, that is, at least three months after the assault.
The explanation offered for the delay in mentioning his back symptoms to his doctors, namely, that he thought the problem was unimportant and would go away and that his first priority was his facial and dental injuries, does not overcome the fact that, even accepting Mr Gorge’s evidence, there was a delay of six to eight weeks between the assault and the first back symptoms. Nor does it adequately explain why Mr Gorge made no complaint of back pain to Dr Gerges until 30 October 2006. Given Mr Gorge’s repeated failure to mention his alleged back symptoms to Dr Gerges over a sustained period involving more than 30 visits, or to refer to it in his claim form, I think it is more likely, and more consistent with Dr Ong’s history, that Mr Gorge did not have back symptoms until a date after 26 June 2006.
The Arbitrator did not fail to consider Dr Evans’ evidence, as has been submitted. That evidence, as explained in Dr Evans’ second report, does not support the claim. The Arbitrator carefully considered it, along with all the other evidence, as I have on review.
As a result of being asked the wrong questions, Dr Evans’ first report has been poorly expressed and is of limited probative value. Nevertheless, his statement that the injury was consistent with the history provided must be read with the clear qualification the doctor added, namely, “except for the time lapse”. In view of the time lapse, Dr Evans concluded that employment was “probably not a substantial contributing factor to his injury”. That opinion is unhelpful and unsatisfactory. The first question to be answered is whether Mr Gorge injured his back on 26 March 2006 or, in the alternative, whether his back condition resulted from the assault on that day. Dr Evans did not adequately answer that question in his first report, but dealt with the question of whether employment was a substantial contributing factor to the injury, a question that only arises if an injury occurred in the first place. His first report goes no higher than suggesting that the circumstances of the incident on 26 March 2006 (the stumble with an effort to right oneself) “could” have provoked the disc prolapse.
However, Dr Evans did not “ignore his own finding”, as has been submitted by Mr Gorge. He clarified his evidence in his second report, in which he made it clear that, based on the evidence from Dr Ong, the claim form, and Dr Gerges’ notes, he did not accept that Mr Gorge injured his back in the assault on 26 March 2006. This opinion clearly displaces his previously expressed view that the type of injury sustained “could” have provoked the disc prolapse. Whilst it could have provoked the disc prolapse it is clear that the doctor’s ultimate conclusion is that, having regard to the more detailed history provided to him, it did not in fact provoke the disc prolapse and that Mr Gorge did not injure his back on 26 March 2006.
Dr Ong’s evidence in his report of 25 November 2006 is unpersuasive. It concluded with the assertion that Mr Gorge’s current low back injury “may” be related to the March 2006 assault. That conclusion fails to discharge the onus of proof on the balance of probabilities and is unpersuasive. Further, Dr Ong’s report is internally inconsistent. At one stage he referred to Mr Gorge noticing lower back discomfort a few months after the assault and at another stage he stated that Mr Gorge “did not have significant low back complaints immediately after the stated injury” (emphasis added), which implies that he had some back symptoms immediately after the assault. According to Mr Gorge, he had no back symptoms for at least six to eight weeks after the assault. Dr Ong’s evidence fails to adequately deal with that delay in the onset of back symptoms.
The burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists (see Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [80]). However, as noted by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [61]), “the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.” Such an inference is not open in the present case because the delay in the development of Mr Gorge’s symptoms is substantial and, as noted below, is unexplained.
Dr Mahony’s evidence is also unhelpful. Whilst it is accepted that Mr Gorge required extensive dental treatment as a result of the assault, that does not overcome the fundamental difficulty in this case, namely, that he experienced no back symptoms for at least (on his evidence) six to eight weeks after the assault. Dr Mahony’s assertion that it was reasonable that priority be given to his teeth does not overcome that difficulty. Dr Mahony made no attempt to explain how back symptoms that developed so long after the alleged traumatic event could be causally related to that event. His ultimate conclusion, namely, that Mr Gorge’s back pain is associated with the assault is no more than a bare conclusion that is unexplained by any reasoning or analysis (Makita(Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’)).
The same criticism applies to the evidence from Dr Medhat Guirgis. He made no attempt to explain the two-month delay between the assault and the development of low back symptoms, but merely asserted, in a bare conclusion unsupported by any reasoning and analysis, that the assault “resulted in…post-traumatic mechanical derangement of the lumbar area of the spine”. Having failed to give any explanation for his conclusion, his opinion is of little or no probative value (Makita).
The omission of such an explanation by an expert can sometimes be overcome by the use of “commonsense” in the evaluation of evidence and the “sequence of events” (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) at [90]). However, the connection between the assault on 26 March 2006 and the subsequent development of lower back symptoms several weeks (at the least) later is not within “the realm of common knowledge and experience” (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91]) that would enable an arbitrator or a Presidential member to rely on his or her “commonsense” to conclude that the back symptoms had resulted from the assault. The objective evidence is strongly against drawing such a conclusion. My finding that Mr Gorge did not develop back symptoms until after 26 June 2006 further supports this conclusion.
The Arbitrator’s failure to expressly refer to the clinical notes from St George Hospital is of no consequence. Those notes do not overcome the critical shortcoming in the worker’s case. On the contrary, they confirm the history recorded by Dr Ong that Mr Gorge did not experience back pain until August 2006, four months after the assault. That history does not support Mr Gorge’s claim, but further undermines it.
I have carefully considered Dr Ong’s evidence (that Mr Gorge had no back pain before March 2006) together with Mr Gorge’s evidence that he had no other accidents after the assault and Dr Mahony’s evidence that, in the absence of any congenital abnormalities, one would have to consider Mr Gorge’s condition to be “associated with post-trauma, producing teeth, lower lip and back symptoms.” Even accepting that Mr Gorge had no back pain before the assault and had no accidents after it, and even accepting (contrary to my finding) that Mr Gorge’s back symptoms started six to eight weeks after the assault, the evidence does not provide any persuasive explanation for the delayed onset in those symptoms. In the circumstances, I am not persuaded that Mr Gorge’s back symptoms resulted from the assault.
The evidence does not support the suggested “masking” of the back symptoms as a result of the facial and dental injuries. At its highest, Dr Mahony suggested that it was reasonable that priority was given to treating Mr Gorge’s teeth. Nowhere did he suggest that the facial injuries “masked” the symptoms caused by a back injury on 26 March 2006.
I have found Mr Gorge’s evidence to be unpersuasive and I do not accept it. Where it conflicts with Dr Evans’ evidence, as explained in his second report, I prefer Dr Evans’ evidence. It follows that Mr Gorge has not discharged the onus of proof and has not established that he injured his back on 26 March 2006 or, in the alternative, that his back condition has resulted from the assault that occurred on that day.
OTHER MATTERS
In the event that Mr Gorge’s statement of 20 February 2009 was not tendered as a result of an oversight, I have, as a matter of fairness to him, carefully considered the contents of that document on review. Nothing in that statement adds anything of relevance to the evidence already admitted. The statement essentially repeats the contents of his two earlier statements save that it adds an assertion that prior to 26 March 2006 he had never had any back pain or problems with his back. That assertion was already in evidence through the histories taken by Drs Ong and Evans. The February 2009 statement also asserts that the back problems started “approximately one or two months after the accident on 26 March 2006”. That assertion is similar to the history taken by Dr Mahony and referred to above. For the reasons outlined above, this variation in the history makes no difference to the outcome.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view, for the reasons given by the Arbitrator and the reasons given in this decision, that Mr Gorge has not discharged the onus of proof in respect of his claim that he injured his back on 26 March 2006 or, in the alternative, that his back condition has resulted from the assault that occurred on that day. It follows that he has no entitlement to lump sum compensation in respect of the condition of his back and no entitlement to claim hospital and medical expenses in respect of treatment for his back. However, he is entitled to claim for reasonably necessary dental treatment as a result of the assault. The Arbitrator noted at teleconferences on 24 November 2008 and 13 January 2009 that Mr Gorge made no claim “at all for mouth (teeth)” (Reasons, at [9]). To avoid any possible confusion, however, the Arbitrator’s order that the claim made under section 60 of the 1987 Act be dismissed must be amended to reflect the fact that that order only applies to the claim for section 60 expenses that relate to the alleged back injury.
DECISION
Paragraphs 1, 3 and 4 of the Arbitrator’s determination of 6 March 2009 are confirmed. Paragraph 2 of the Arbitrator’s determination is revoked and the following order made in its place:
“2. The claim for hospital and medical expenses for treatment for the applicant worker’s alleged back injury is dismissed.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
12 June 2009
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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