Greater West Area Health Service (Dubbo Base Hospital) v Palmer
[2011] NSWWCCPD 15
•14 March 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Greater West Area Health Service (Dubbo Base Hospital) v Palmer [2011] NSWWCCPD 15 | ||||
| APPELLANT: | Greater West Area Health Service (Dubbo Base Hospital) | ||||
| RESPONDENT: | Suzanne Palmer | ||||
| INSURER: | GIO - TMF | ||||
| FILE NUMBER: | A1-4948/10 | ||||
| ARBITRATOR: | Mr Jeffrey Phillips SC | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 November 2010 | ||||
| DATE OF APPEAL DECISION: | 14 March 2011 | ||||
| SUBJECT MATTER OF DECISION: | Section 4(b)(ii) of the Workers Compensation Act 1987; aggravation, acceleration or exacerbation of a disease; weight of expert evidence; proof of causal nexus between work and injury | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | DLA Phillips Fox | |||
| Respondent: | Slater & Gordon Lawyers | ||||
ORDERS MADE ON APPEAL: | The orders and direction made by the Arbitrator and recorded in the Certificate of Determination dated 11 November 2010 are confirmed. The appellant is to pay Ms Palmer’s costs of this appeal. | ||||
BACKGROUND TO THE APPEAL
Ms Suzanne Palmer, who is 48 years of age, commenced employment with Greater West Area Health Service (the appellant) in 1994. Her position was that of Medical Records Manager at Dubbo Base Hospital. Ms Palmer was engaged to perform a minimum of 18 hours per week. The terms of her contract did not stipulate a maximum number of hours. This position was retained until Ms Palmer took maternity leave in February 1998. Upon her return to work in March 1999 her position was changed to that of Assistant Medical Records Manager. This change in her job description came about by reason of the appellant’s appointment of a full-time Medical Records Manager during Ms Palmer’s absence on maternity leave. That manager resigned from her position in February 2003.
Between February 2003 and January 2005 Ms Palmer performed the duties of both the position of Manager and Assistant Manager of the Medical Records Department. Those duties were performed during periods in excess of the minimum hours as specified in her contract. The work required prolonged sitting at a desk utilising a seat which provided poor lumbar support. Her duties included some lifting and bending and transferring of records from place to place.
In late 2004 Ms Palmer began to notice pain in her low back. By January 2005 she also experienced pain radiating into each of her legs. Ms Palmer sought medical advice following which, in July 2005, she underwent lumbar spinal surgery. Ms Palmer was absent from work during convalescence following that surgery until September 2005.
Ms Palmer had ceased work in March 2005 by reason of her back disability and made a claim in respect of workers compensation benefits. That claim was accepted and weekly benefits and medical expenses were paid by consent. Those weekly benefits included payments pursuant to s 40 of the Workers Compensation Act 1987 (the 1987 Act) following her return to selected suitable duties in September of 2005.
On 25 September 2008 liability in respect of workers compensation benefits was denied on behalf of the appellant by its insurer. Notice of that decision was given to Ms Palmer pursuant to the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That notice disputed the occurrence of injury in the course of employment; that Ms Palmer’s employment was a substantial contributing factor to her injury in terms of s 9A of the 1987 Act; that she was incapacitated and that medical expenses were incurred by reason of a compensable injury.
Ms Palmer continued to perform selected duties until 28 September 2010 on which day she was instructed by her superiors not to return to work as the suitable duties had been withdrawn. A dispute had earlier arisen concerning Ms Palmer’s entitlement to ongoing workers compensation benefits and an application seeking to resolve that dispute was filed with the Commission on 22 June 2010. That application sought orders in respect of weekly compensation, medical expenses and lump sums in respect of whole person impairment and pain and suffering resulting from the alleged injury.
That application came before an arbitrator for conciliation/arbitration on 7 October 2010. The matter proceeded to hearing following which the Arbitrator reserved his determination. A Certificate of Determination issued on 11 November 2010. That determination was accompanied by a Statement of Reasons (Reasons).
THE DECISION UNDER REVIEW
The Certificate of Determination dated 11 November 2010 records the Arbitrator’s orders as follows:
“1. The Respondent is to make the following payments to the Applicant pursuant to s 40 of the Workers Compensation Act 1978 (The Act)
(i)$265.97 per week between and including 6th November 2008 to 16th November 2008,
(ii)$276.33 per week between and including 17th November 2008 to 12th July 2009,
(iii)$215.33 per week between and including 13th July 2009 to 12th July 2010,
(iv)$223.73 per week between and including 13th July 2010 to 28th September 2010.
2. The Respondent pay to the Applicant pursuant to s 38 of the Act the sum of $969.50 per week from the 29th September 2010 and thereafter such other payments for weekly compensation as will by payable under the Act.
3. The Respondent is to pay pursuant to s 60 medical expenses from the 6th November 2008 to date upon production of invoices or receipts and thereafter on a continuing basis in accordance with the Act.
4. The Registrar is respectfully asked to send this matter to an AMS for assessment of the Whole Person Impairment of the Applicant’s lumbar spine with a deemed date of injury of the 1st December 2004. The AMS to have regard to these reasons and the evidence admitted in this case.
5. The Respondent is to pay the Applicant’s costs as agreed or assessed. I grant an uplift of 20% for both parties to those costs for complexity.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An application seeking leave to appeal against the Arbitrator’s decision was filed with the Commission on 9 December 2010.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred;
(a) in determining that Ms Palmer had received injury arising out of or in the course of her employment, and
(b) in his assessment of the quantum of Ms Palmer’s entitlement to weekly compensation.
ON THE PAPERS REVIEW
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 Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
ADDITIONAL EVIDENCE
Both the appellant and Ms Palmer seek leave to tender additional evidence on this appeal. The admission of such evidence is governed by the provisions of s 352(6) of the 1998 Act in its terms as they appeared before the amendment of that section which was effected by the commencement of the Workers Compensation Legislation Amendment Act 2010. The subsection provided as follows:
“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.”
The additional evidence which each party seeks to adduce is to be found in documents which outline particulars of weekly compensation benefits which have been paid by the insurer to Ms Palmer. The transcript of proceedings before the Arbitrator reveals that such information was not to be found among the evidence which was then before the Arbitrator (at T21). Counsel then appearing on behalf of the appellant sought the Arbitrator’s leave to provide that evidence concerning payments of compensation benefits to the Commission. It was apparently anticipated by the parties that the material would be, following agreement reached between them, tendered as evidence prior to the delivery of the Arbitrator’s determination. The additional evidence was required to enable the Arbitrator to determine, in particular, any entitlement Ms Palmer may have to compensation pursuant to the provisions of s 38 of the 1987 Act.
The Arbitrator granted the parties leave to furnish that additional evidentiary material. However, that material did not reach the Arbitrator before he delivered his reasons and made his determination.
It is clear, having regard to the documents which are the subject of the present application, that correspondence took place between the parties following the arbitration hearing concerning that additional evidence. It is not clear as to why the relevant evidentiary material did not find its way to the Arbitrator before his determination of the dispute. What is clear is that each party wishes to have this material before the Commission and in the circumstances I conclude that it is appropriate to grant leave to Ms Palmer to adduce the following documents as additional evidence on this appeal:
(a) copy of email forwarded by the appellant’s solicitors to Ms Palmer’s solicitors dated 11 October 2010, and
(b) copy of correspondence dated 8 October 2010 from the appellant’s solicitors to Ms Palmer’s solicitors together with enclosures being a list of weekly payments of compensation made to Ms Palmer by the insurer, and a copy of proposed correspondence to Arbitrator Phillips SC dated 8 October 2010.
The only document which the appellant seeks to adduce as additional evidence is a copy of the proposed correspondence addressed to the Arbitrator referred to at [18(b)] above, which has been admitted. In the circumstances there is no requirement to make a ruling concerning the appellant’s application seeking leave to adduce that evidence. The detail of those documents is addressed below.
THE ARBITRAL PROCEEDINGS
The documentary evidence before the Commission was noted at [2] of the Arbitrator’s Reasons. No oral evidence was taken at the hearing before the Arbitrator. The parties were represented by counsel, and submissions were recorded. A transcript (T) of that recording has been produced and made available to the parties.
Ms Palmer’s evidence
Ms Palmer’s statements
Ms Palmer has provided three written statements which are in evidence. The first of those statements is dated 15 December 2008. The following is a summary of those factual matters relevant to the present appeal as found in that statement:
(a) Ms Palmer is presently 48 years of age and is the mother of four children, three of whom were dependent upon her for support as at the date of the hearing before the Arbitrator. She was employed by the appellant as the Medical Records Manager at Dubbo Base Hospital in April 1994. She was at that time a widow and the mother of three young children. The contract of employment provided for a minimum of 18 hours work per week. No maximum was fixed concerning the number of hours of work to be performed. It is stated that Ms Palmer worked “well in excess of the minimum number of hours” and that, over the years, she “worked even beyond full-time hours”. In February 1998 Ms Palmer commenced maternity leave. Upon her return in March 1999 she took up the position of Assistant Medical Records Manager. That position was made available given that the appellant had engaged the services of a full-time Medical Records Manager during the period of Ms Palmer’s maternity leave. That full-time manager resigned in February 2003;
(b) Between February 2003 and October/November 2004 Ms Palmer performed the duties of both Medical Record Manager and of Assistant Medical Record Manager. It is stated that there existed at the hospital a shortage of staff. Recommendations had been made for the correction of those staff shortages by consultants who had investigated work conditions. Ms Palmer had herself requested assistance with her duties. Notwithstanding those recommendations and requests Ms Palmer was required to work long hours and was obliged to take work home at nights and over weekends to enable her to meet deadlines. The work required that she sit for lengthy periods of time at her desk in a stooped position. The work also included lifting and bending when retrieving and storing the records maintained by the hospital. Because of the demands of her work Ms Palmer would often not take a lunch break or morning tea;
(c) In late 2004 Ms Palmer began to notice “niggly pain” developing in her back. That pain continued to develop and by December 2004 Ms Palmer experienced intense pain which caused her concern. She took a period of leave over Christmas. Upon her return to work in January 2005 Ms Palmer found that her back pain was “excruiatating”. At that time she experienced pain radiating down both legs. That pain was more severe on the right;
(d) Ms Palmer consulted her general practitioner, Dr Sabir. It is stated that Ms Palmer first consulted Professor Taylor for specialist advice and was subsequently referred to Dr Ruff, orthopaedic surgeon. Radiological investigations had been conducted. In July 2005 Ms Palmer underwent surgery which was conducted by Dr Ruff at Dubbo Private Hospital. Ms Palmer underwent a course of rehabilitation and physiotherapy treatment and returned to work in September 2005 on a return to work program. A claim for workers compensation benefits was made and the insurer accepted liability on behalf of the appellant. Ms Palmer received payment of her medical expenses and received “make-up pay”. There had been a dispute between Ms Palmer and the insurer as to the hours of her pre-injury work. After some negotiation agreement was reached that make-up pay was to be calculated having regard to a pre-injury working week of 26 hours. The insurer declined liability in respect of weekly payments and treatment expenses on 25 September 2008, and
(e) Ms Palmer continued working on selected duties following denial of liability by the insurer. As at December 2008 she was performing four and a half hours work per day, four days per week.
The following is a summary of relevant matters stated by Ms Palmer in her written statement dated 2 August 2010:
(a) Ms Palmer continued to perform 18 hours work per week. She continued to experience pain and continued with rehabilitation and sought further treatment. In July 2009, following a consultation with Dr Ruff, Ms Palmer’s work regime was increased to five hours per day, four days per week. Her earnings of $717.80 per week were less than her pre-injury earnings. Her position with the appellant had, since October 2006 been that of Medico-Legal Officer, and
(b) Ms Palmer continued to undergo treatment including acupuncture, injections and a course in aqua aerobics. Ms Palmer also took regular medication prescribed by her general practitioner. She continued to experience difficulty performing her work by reason of her back pain.
Ms Palmer’s third statement dated 1 October 2010 described a meeting which took place on 28 September 2010 at Dubbo Base Hospital. That meeting was attended by the General Manager of the hospital, Mr Newton, and the Risk Manager, Ms Judy Robinson. A work site assessment which had been compiled concerning Ms Palmer’s position was considered as were the restrictions which had been placed upon her by reason of her back disability. Concern was expressed that, by reason of those restrictions, Ms Palmer was unable to perform her job as described. She was then informed that she was not to return to work as the suitable duties provided to date had been withdrawn. Ms Palmer was told that she was “being stood down”.
Dr Stephen Ruff
Ms Palmer relied upon a number of reports provided by Dr Stephen Ruff, the first of which is dated 6 May 2005 and the last dated 12 September 2010. The last of those reports contains a summary of Dr Ruff’s treatment. Ms Palmer first consulted Dr Ruff in April 2005. A history had been recorded of the onset of back pain in December 2004 which Ms Palmer felt was associated with working “double shifts and prolonged sitting associated with that activity”. It was also recorded that leg pain had begun in February 2005. That pain had “progressed”. Radiological investigation had revealed disc herniation at the lumbar level. An MRI conducted in March 2005, arranged by Dr Anthony Smith, orthopaedic surgeon, demonstrated a right paracentral disc protrusion at L3/4 which was producing a “significant mass effect upon the thecal sac”.
Dr Ruff conducted lumbar spinal surgery being disc excision in July 2005 at Dubbo Private Hospital. Ms Palmer experienced improvement of her leg pain but suffered increased back pain. After some time the leg pain recurred. Further investigations were conducted including an MRI scan in October 2006. That study “showed further recession in the size of the disc protrusion”. Ms Palmer had at that time consulted Dr Nicholas Little, neurosurgeon, who did not recommend further surgical intervention.
Dr Ruff expressed his diagnosis as being L3/4 disc herniation with right L4 nerve root irritation and compression. Dr Ruff stated that “historically it would appear that employment with the Base Hospital was a substantial contributing factor to the disc herniation”. It was Dr Ruff’s opinion that Ms Palmer remained partially incapacitated and that Ms Palmer should limit periods of prolonged posture, in particular sitting, and stated the need for continuing exercise to maintain tone in her abdominal wall muscles.
Dr Richard Evans
A report of Dr Richard A Evans dated 20 November 2008 was tendered on behalf of Ms Palmer. A history is recorded by Dr Evans of lower back discomfort in 1998 at the time of her pregnancy. Also recorded was “mild back discomfort with prolonged effort, for example after a day’s gardening” in 2003. Ms Palmer reported to Dr Evans that she “noted the gradual onset of lower back pain with prolonged sitting at work in September 2004”. Dr Evans noted that at that time Ms Palmer was:
“apparently carrying out the work of two people, and would work for 50-60 hours each week. Two thirds of this would be in the medical records department where she sat on a cheap swivel chair that did not have lumbar support, and about one third at home, where she had better conditions. The work demands were so great that she even had her lunch at her desk, so virtually stayed there for the entire working day”.
Following conduct of a physical examination and a detailed summary of Ms Palmer’s treatment and radiological investigations, Dr Evans diagnosed the existence of severe degenerative disc disease in her lower back prior to 2004. It was Dr Evans’s view that those changes were aggravated by the prolonged sitting hunched forward at her desk for eight hours each day. He had earlier noted that her work had increased “to 50-60 hours per week, during which she sat for 40 hours, not taking lunch breaks, at an ergonomically bad situation, using a cheap swivel chair with no lumbar support”.
Dr Evans proceeded to assess whole person impairment resulting from the condition of Ms Palmer’s lower back. After deduction in respect of pre-existing disease he expressed the opinion that she suffered a 10 per cent impairment resulting from “the nature and conditions of her work during 2003 and 2004”.
Other documents
A number of radiological reports and medical certificates are in evidence. Reference is made, where relevant, to those documents below. A wage schedule, which is addressed below, was also tendered.
A report by Ms Hadley and Ms Hay dated 7 May 2004 concerning staffing, work conditions and other matters at the appellant’s Medical Records Department is in evidence. That report is addressed hereunder.
A number of other documents, including a copy of a 2004 Review of the Medical Records Department conducted by Ms Jackie Kent, are also in evidence. Those documents are not directly relevant to the issues raised on this appeal.
The appellant’s evidence
The expert medical evidence relied upon by the appellant included reports of Dr Breit dated 9 July 2008, Dr Anthony Smith dated 7 April 2005, Dr Nicholas Little dated 19 October 2006 and Dr Thomas Taylor dated 30 April 2005. No history concerning any association between work conditions and Ms Palmer’s back pain was recorded by those last three mentioned practitioners. The appellant also relied upon a number of reports of Dr Ruff and reports relating to radiological studies. These reports are discussed below.
A copy of Ms Palmer’s workers compensation claim form dated 8 August 2005 is in evidence. That form includes the following description of the manner in which the injury occurred:
“Continuous sitting. No specific event/injury occurred. Many years of inadequate staff causing me to perform more than one job and not being able to take required breaks from sitting/work. Sedentary work.”
The appellant tendered a copy of patient medical history records relating to Ms Palmer’s treatment by her general practitioner Dr Sabir. Those notes include a history recorded in February 2005 of severe low back pain caused when lifting one year old nephew seven years earlier. It is also recorded that the pain caused Ms Palmer to remain off work for two weeks and that she underwent five weeks of intense physiotherapy. Those notes also record a history given on 20 February 2005 that Ms Palmer experienced:
“spontaneous LBP since Christmas, been worse last few days... getting electrical pain down ant [sic, anterior] both thighs and legs… pain disturbing sleep been using husband’s PF and Nurofen… back gets locked at times and feels crackling… a lot… no history of trauma… put on weight recently for eating irregularity, unhealthy and little output as her work is sedentary as manager of medical records at DBH…”.
An earnings report relating to work performed by Ms Palmer during the relevant period, including hours worked, was tendered on behalf of the appellant.
Ms Palmer’s submissions
It was accepted by counsel appearing on behalf of Ms Palmer that she had a “pre-existing problem in her back”. The allegation of injury was described by counsel as being:
“from about February 2003 the nature and conditions of the work as an assistant medical records manager, including inadequate staffing, inadequate resources, continuous and prolonged sitting hunched forward at her desk in an inappropriate chair, often without breaks, repetitive lifting and handling files and doing prolonged hours at work have caused, aggravated, exacerbated the injury”.
As to the question of causation, counsel stated that Ms Palmer “claims that she had a pre-existing degenerate lumbar spine which has been aggravated by her work”.
Counsel placed reliance upon the evidence of Dr Evans concerning the causal nexus between the work performed by Ms Palmer and the aggravation of the degenerative disease present in her lumbar spine. Reliance was placed upon the provisions of s 4(b)(ii) of the 1987 Act. The evidence of Dr Ruff was relied upon by counsel concerning the causal nexus between the work performed by Ms Palmer and the disc herniation. It was argued that Dr Ruff’s evidence established that Ms Palmer was totally incapacitated for work for some months following her surgery and has remained partially incapacitated for work since her return to selected duties. It is put that Dr Ruff’s evidence is “the best evidence”. Dr Ruff’s evidence, it was put, established that the aggravation of the underlying disease continues to exist.
Counsel noted in the course of submissions that Ms Palmer’s wages schedule was the “only wages schedule filed”. In the circumstances reliance was placed upon the arithmetic calculations found in that document concerning Ms Palmer’s entitlement to weekly compensation. The transcript records an exchange between the Arbitrator and counsel concerning the absence of evidence as to payments of weekly compensation. It was at that point in the proceedings that the parties were granted leave by the Arbitrator to supplement the evidence, pending the delivery of his determination.
It was argued that Ms Palmer had an entitlement to weekly compensation pursuant to s 38 of the 1987 Act for a period immediately following the withdrawal of suitable duties in September 2010.
It is recorded (at T29) that Ms Palmer conceded, for the purpose of determining the relevant current weekly wage rate, that such figure was to be determined having regard to a 26 hour working week. Counsel drew attention to the evidence concerning the dependency of Ms Palmer’s three children.
The appellant’s submissions
Counsel appearing on behalf of the appellant submitted that the issue in dispute was “essentially limited to one of causation”. Counsel made reference to the evidence concerning the undoubted existence of degenerative changes which were of long standing in Ms Palmer’s lumbar spine and noted that the issue for determination involved the question as to whether, on the facts, there had been an aggravation of that pre-existing degenerative condition.
In the course of submissions counsel paid particular attention to the histories recorded by the various medical practitioners whose evidence was before the Commission. The evidence of Dr Smith, Dr Taylor and Dr Little were summarised in the course of argument and it appears to have been suggested that the histories recorded by those practitioners do not support a conclusion that there was a causal nexus between the performance of Ms Palmer’s work and the alleged injury.
Counsel referred to the evidence of Dr Evans, who recorded a history of performance by Ms Palmer of long working hours of between 50 and 60 hours per week. The Arbitrator’s attention was drawn to the appellant’s earnings report which records the hours performed by Ms Palmer at the relevant time. It was submitted that, having regard to the contents of those records, Ms Palmer had been mistaken when providing Dr Evans with a history of working between 50 and 60 hours per week. Counsel proceeded to argue that both Dr Evans and Dr Ruff “base their opinion on material which is not proven by way of fact”. Reference was made to the decision in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita).
Counsel appearing on behalf of Ms Palmer replied to the appellant’s submissions and drew attention to the evidence contained in the report concerning the review conducted by Ms Hadley and Ms Hay referred to at [31] above. The contents of that report establish, it was argued, that there were significant staffing shortages at Ms Palmer’s place of work and it was argued that the report corroborates her evidence that there had been a substantial increase in workload at the relevant time. Counsel for the appellant submitted, in response, that the report contained no detail specifically relevant to the work conditions of Ms Palmer.
The Arbitrator’s decision
Following a thorough summary of the evidence and submissions put on behalf of the parties the Arbitrator proceeded to consider those authorities relevant to the proper application of s 4 of the 1987 Act. The decision of the High Court in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) was noted in the course of the Arbitrator’s consideration of the meaning of “disease” as it appears in s 4. That decision of the High Court was also considered when the Arbitrator addressed the meaning of the term “exacerbated” as it appears in that section. Reference was also made to the decision of the Court of Appeal in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 (Murray) where the proper application of the provisions of s 9A of the 1987 Act was considered by the Arbitrator. The Arbitrator then expressed his view (at page 20 of Reasons) that:
“the intensity of the work performed by [Ms Palmer] in that period of 12 to 18 months leading up 1 December 2005, was the precipitating factor or the aggravating factor to the pre-existing degenerative back condition suffered by [her]. The build up of the work over that period was such as, to refer back to what Justice Einstein said, ‘to tip the balance’ as to the precipitating or worsening factor to the condition which ultimately led to the back surgery in July 2005”.
The Arbitrator expressed his view that he preferred the evidence of Dr Evans and Dr Ruff to that of Dr Breit. The Arbitrator also expressed his view that he did “not believe that the evidence taken from [Ms Palmer] by Dr Evans in relation to the number of hours she was working detracts from his report”. The Arbitrator proceeded to make a finding that Ms Palmer “suffered injury as defined to her lumbar spine pursuant to ss 9 and 9A of the Act and that work was a substantial contributing factor. The Applicant’s work at the Dubbo Base Hospital’s records department aggravated her underlying condition”. The Arbitrator further found that the deemed date of the injury, having regard to the provisions of s 16 of the 1987 Act, was 1 December 2004.
The Arbitrator did not make an express finding as to incapacity in the course of his Reasons. It is clear that, given his consideration of the decision in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell), he had concluded that Ms Palmer was at relevant times partially incapacitated for her pre-injury work.
The Arbitrator noted that Ms Palmer had filed a “schedule of wages” in respect of which no challenge was made by the appellant (at [22] of Reasons). The Arbitrator proceeded to enter an award in favour of Ms Palmer pursuant to s 40 between 6 November 2008 and 28 September 2010. Weekly compensation was calculated by the Arbitrator by reference to the figures appearing in the wages schedule. Those weekly payments are particularised in the Certificate of Determination set forth at [8] above.
The Arbitrator observed that Ms Palmer had been provided suitable work in accordance with WorkCover medical certificates presented by her to the appellant until that work was withdrawn on 28 September 2010. The Arbitrator proceeded to consider the provisions of s 38 and s 38A of the 1987 Act and concluded that in the circumstances of the case Ms Palmer was entitled to be compensated in respect of her partial incapacity as if that incapacity was total (at T24). The Arbitrator noted in the course of his Reasons that, notwithstanding the parties’ stated intention to furnish full particulars to the Commission of payments made by way of weekly compensation, that evidentiary material was not before him. The Arbitrator noted that the relevant current weekly wage rate was agreed as being $969.50. An order was entered in favour of Ms Palmer in the sum of $969.50 per week from 29 September 2010 and continuing pursuant to s 38. The Arbitrator proceeded to make orders and a direction as noted in the Certificate of Determination.
SUBMISSIONS, DISCUSSION AND FINDINGS
The appellant has filed supplementary submissions which limit the challenge on this appeal to those matters concerning causation (Ground 2) and the question of entitlement (Grounds 3 and 4).
Causation – Ground 2
The Arbitrator’s finding that, on the evidence, the work performed by Ms Palmer caused aggravation of the pre-existing degenerative condition of her lumbar spine is challenged. The Arbitrator’s reasoning concerning the question of causation of injury is to be found at page 20 of his Reasons. Those findings, summarised at [46] and [47] above, were stated in full as follows:
“I am of the view that the intensity of the work performed by the Applicant in that period of twelve to eighteen months leading up to 1 December 2005, was the precipitating factor or the aggravating factor to the pre-existing degenerative back condition suffered by the Applicant. The build up of the work over that period was such as, to refer back to what Justice Einstein said, ‘To tip the balance’ as to the precipitating or worsening factor to the condition which ultimately led to the back surgery in July 2005. This back surgery, which did not solve the Applicant’s conditions, and which may have worsened those conditions, it being described by Dr Breit (ex 1, p33) as ‘failed back surgery’. In my opinion therefore, I prefer the evidence of Drs Richard A Evans and Dr Stephen Ruff, to that of Dr Breit. Dr Breit’s material only refers to the sedentary activities of the Applicant and does not refer to the intensity of the workload and does not also refer to the bending and stooping with the lifting of files from time to time and also the bad chair, which the Applicant was sitting on over that time. I do not believe that the evidence taken from the Applicant by Dr Evans in relation to the number of hours she was working detracts from his report. It was clear that the Applicant was working in excess of the eighteen hours minimum and in excess of the twenty-six hours agreed to be the average of what she was working during this crucial time when her back became symptomatic to the extent that it was disabling (see ex 2).
I therefore find that the Applicant suffered injury as defined to her lumbar spine pursuant to ss.9 and 9A of the Act and that work was a substantial contributing factor. The Applicant’s work at the Dubbo Base Hospital’s records department aggravated her underlying condition and that the deemed date of the injury, pursuant to s.16 of the Act was the 1st December 2004.”
The appellant in submissions on this appeal draws attention to the manner in which Ms Palmer’s allegation of injury is particularised at Part 4 of the Application. Those particulars included an allegation that work conditions, including a requirement to work 50 to 60 hours per week, had caused, accelerated, aggravated or precipitated the relevant injury and/or disease. The Arbitrator’s acceptance of the evidence of Dr Ruff and Dr Evans is challenged upon the basis that Ms Palmer had failed to prove that which was assumed by the expert witnesses, namely that she had been required to work “50 to 60 hours per week”.
The appellant draws attention in the course of submissions to the contents of the earnings report in evidence relating to the hours of work performed by Ms Palmer and her payment for that work. It is argued that “the facts of [Ms Palmer] having worked 50 to 60 hours per week were disproven by the wage material”. It is argued that, having regard to the authorities cited in the course of submissions the “requirements” concerning evidence of expert opinion have not been met.
It appears that the particulars of injury as found in Ms Palmer’s application had been, in part, founded upon the history as recorded by Dr Evans that she performed the relevant work for a period of 50 to 60 hours per week. The records produced by the appellant plainly demonstrate that Ms Palmer, during the relevant period, was paid in respect of far less hours on a weekly basis than that recorded by Dr Evans and particularised in the application. It is not in dispute that Ms Palmer’s minimum weekly hours were fixed at 18 hours and it is clear from the earnings records that she consistently worked in excess of that minimum period. Those records demonstrate that Ms Palmer, within the period February 2003 to December 2004, was paid in respect of 75 hours for the fortnight for the pay period ending 11 May 2003. That is the highest recorded number of hours during the period. Her fortnightly hours of work as recorded during the remainder of the period fluctuates significantly. The figures recorded demonstrate no particular pattern, however it is to be noted that Ms Palmer’s fortnightly hours often exceeded 50 hours.
The evidence relating to Ms Palmer’s hours of work, with the exception of the earnings records, is vague and inexact. It is to be noted that the only suggestion in the evidence that Ms Palmer worked between 50 and 60 hours per week is to be found in the report of Dr Evans, that being part of the history as recorded by him. Ms Palmer’s evidence concerning this subject was that she “used to work well in excess of the minimum number of hours, and indeed over the years I worked even beyond full time hours. I was not always paid for this but instead took the extra time I worked as time-in-lieu”. The evidence does not reveal what was meant by the term “time-in-lieu” as used by Ms Palmer in her statement. What is clear on the evidence is that, following acceptance by the insurer of Ms Palmer’s compensation claim, agreement was reached between the parties that Ms Palmer’s compensation entitlement would be calculated upon the basis of a pre-injury work regime of 26 hours per week. The history recorded by Dr Ruff when first consulted by Ms Palmer was that the back pain was felt by Ms Palmer to be “associated with working double shifts and prolonged sitting associated with that activity”.
Leaving aside for the moment the matter of working hours, the evidence of Ms Palmer concerning her work conditions has not, as has been pointed out in submissions on her behalf, been the subject of challenge. Ms Palmer (as noted at [21(b)] above) states in evidence that there were significant staff shortages and that, to meet deadlines, she was obliged to take her work home on weekends and overnight. Having regard to the evidence in its totality I am satisfied on this review that Ms Palmer was required to work extended hours both at work and at home by reason of the pressures of work and the staffing problems which were recorded by Ms Hadley and Ms Hay in their report compiled in May 2004.
The appellant’s submission concerning the notation made by Dr Evans concerning the performance of 50-60 hours per week is well founded. The evidence does not support a finding that the history as recorded by that practitioner was correct with respect to the hours of work performed. Whilst the Arbitrator has made no explicit finding concerning the correctness or otherwise of the history as recorded by Dr Evans, it appears from the reasons which I have quoted at [47] above that he has accepted that such history had not been established on the evidence. The Arbitrator found that the presence of that history did not, in his view, “detract” from the evidence found in his report. In so concluding it is clear that the Arbitrator had treated the absence of proof of that history as being a matter that may be relevant when determining the weight of Dr Evans’s evidence.
It is clear that the Arbitrator has, in part, relied upon the evidence of Dr Evans when reaching his conclusion as to causation. As recorded by Dr Evans, some of the work was said to have been performed at home. That history, if accepted, suggests that Ms Palmer worked in those conditions at the appellant’s premises for a period of somewhere between 33 and 40 hours per week. That, again, does not correspond with the recorded hours of work as found in the earnings record.
The appellant has given close attention in submissions to those authorities which have addressed the question of the admissibility of expert opinion evidence and the proper approach to the evaluation of such evidence. Those authorities include the decision in Makita and those other decisions noted at [1] of submissions following the heading “Ground 2”. The relevance of those matters propounded by Heydon JA (as he then was) in Makita to proceedings conducted before the Commission was very recently considered by the Court of Appeal in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock). The leading judgment in Hancock, delivered by Beazley JA (with whom Giles JA and Tobias JA agreed), includes a careful analysis of those matters addressed in Makita and the subsequent analysis of the reasoning of Heydon JA as found in the judgment of Spigelman CJ in ASIC vRich [2005] NSWCA 152; 218 ALR 764 (Rich). It was made clear by Beazley JA in the course of her discussion of relevant authority that the Commission is not bound by the rules of evidence: s 354 of the 1998 Act. Her Honour noted that the Commission’s Rules made particular provision with respect to principles of procedure concerning the reception of evidence in the former Pt 15 r 15.2 of the Workers Compensation Rules 2006. Her Honour proceeded to state (at [82]):
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.”
In the present matter Dr Evans has clearly identified the assumed facts upon which his opinion is based. He has also clearly stated his opinion as to diagnosis and concerning the nexus between work and aggravation of the underlying disease suffered by Ms Palmer. The identification of those matters, in my opinion, satisfies the requirements concerning the admissibility of expert evidence, as stated by Gleeson CJ in HG v R (1999) 197 CLR 414, which was accepted by Spigelman CJ in Rich, being that such evidence:
“… required identification of the facts [the expert] was assuming to be true, so that they could be measured against the evidence and: … demonstration or examination of the scientific basis of the conclusion” (at 428).
Beazley JA cited the statement by Gleeson CJ in the course of her reasoning in Hancock and expressed the view that such was “a principle of long standing”. That view was expressed by her Honour having regard to the numerous statement of principle to be found in the various authorities cited by her between [74] and [78] of her decision. The relevance of those principles to the present proceedings was stated by her Honour in Hancock at [83] where it was said:
“In the case of non-evidence-based jurisdiction such as [the Commission], the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA”.
In the present matter it is reasonable, in my opinion, to infer that Dr Evans treated the hours of work as important in reaching his opinion as to causation. Whilst that was but one matter taken into account by Dr Evans I am of the opinion that it was of such significance that a proper evaluation of the weight of his evidence generally required acknowledgement that an important element relied upon by him had not been proven. It follows that, in my view, the Arbitrator was incorrect when he stated that the absence of proof concerning the hours of work did not “detract” from that evidence. That is not to say that the evidence of Dr Evans is devoid of any probative value. However it is my view that the opinion as expressed by Dr Evans that Ms Palmer’s work “significantly accelerated and aggravated” her lumbar spinal disease is not of sufficient weight, alone, to prove a causal nexus between the work and aggravation giving rise to the need for surgery.
There is no dispute among the medical experts concerning the existence of extensive degenerative changes at the lumbar level of Ms Palmer’s spine. The diagnosis expressed by Dr Ruff, Dr Taylor and Dr Evans includes a notation of a disc herniation or protrusion at the L3/4 level. Dr Anthony Smith in his report of 7 April 2005 made reference to an MRI study, the findings of which included a bulge at L3/4 somewhat to the right with “a soft tissue component that may represent blood according to the radiologist and I would concur that that is a possibility”. Dr Ruff in his report of 12 September 2010 states, “historically it would appear that employment with the Base Hospital is a substantial contributing factor to the disc herniation”. Dr Taylor, in his report of 30 April 2005 had expressed the view that “the clinical picture fits well with the demonstrated prolapse at L3/4 towards the right side”.
The evidence of Dr Breit may be distinguished from the views as expressed by the other medical experts in that he makes no explicit mention, when expressing his views as to diagnosis, of any protrusion of the disc at the L3/4 level. This is despite his notation of the findings of the lumbar CT conducted in February 2005 which demonstrated “bulging of L2/3, a central protrusion at L3/4 with a right lateral component, and degenerative changes and thinning of L4/5.” Dr Breit’s diagnosis is that of “failed back”. He notes multi-level degenerative disease with back and leg pain, and states that “the spondylosis has led to these symptoms”.
Dr Breit expressly stated that Ms Palmer’s employment was “not a substantial contributing factor”. He stated that there was “no history of injury, just the gradual onset of back and leg pain in someone whose duties are purely sedentary”. Dr Breit proceeded to state:
“The nature and conditions of employment did not lead to this problem. People who have lumbar spondylosis do get back pain and stiffness from sitting. The sitting does not cause or aggravate the problem, it is simply a symptom of the pre-existing condition”.
I consider that the Arbitrator’s conclusion in the first sentence of his determination noted at [52] above constitutes a finding that the work performed caused aggravation of the pre-existing degenerative condition of Ms Palmer’s lumbar spine. The challenge raised by the appellant requires, firstly, a determination as to whether such inference was available on the evidence and, secondly whether such inference should be drawn.
I conclude that the state of the medical evidence which I have attempted to summarise including that of Dr Evans which, as I have already stated, is of diminished probative value, provides a basis upon which an inference may be drawn that there is a causal nexus between the work performed and the symptoms experienced by Ms Palmer in late 2004/early 2005. It is accepted by Dr Breit that sitting can, in the present circumstances, cause pain and stiffness in the back. Such an occurrence would constitute an “exacerbation” of the degenerative disease as that term is explained by Kitto J in Semlitch cited by the Arbitrator in the course of his reasons. His Honour’s statement was:
“As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development.” (at 634)
In the present matter I have reached the conclusion that the symptoms were caused by the prolapse and that the demands of Ms Palmer’s work at the relevant time caused the prolapse. That occurrence may be seen, in my view, as not only an exacerbation of her underlying disease but as an acceleration of that disease. Having regard to the totality of the evidence I find on this review that the state of deterioration of Ms Palmer’s lumbar spine by reason of disease had been aggravated, exacerbated and accelerated by the stress thrown upon that segment of her spine given her working conditions. The prolapse of the disc having been, on the probabilities, caused by work, gave rise to incapacity and the need for medical treatment including surgical intervention. It may be seen that I have reached a conclusion similar to that reached by the Arbitrator concerning the question of the existence of a causal nexus between work and the occurrence of injury. In the circumstances the appellant’s arguments with respect to Ground 2 of this appeal must be rejected.
Ms Palmer’s entitlement to weekly compensation – Grounds 3 and 4
The evidence establishes that Ms Palmer was totally incapacitated and paid weekly compensation benefits up until her return to work in September 2005. She resumed work in her then partially incapacitated state and received weekly payments up until a date in 2008. There is no evidence to support the assertion, made by the appellant’s solicitors in draft correspondence dated 8 October 2010 addressed to the Arbitrator, that any payment made was by way of weekly payments made pursuant to s 38 of the 1987 Act.
As earlier noted, the Arbitrator made no express finding as to incapacity in the course of his reasons, however it is clear that he concluded on the evidence that Ms Palmer remained partially incapacitated up to the date of hearing. On this review I find that such partial incapacity has continued to date and I respectfully agree with the Arbitrator that Ms Palmer’s entitlement to weekly benefits since the appellant’s withdrawal of suitable duties in September 2010 is to be calculated in accordance with the provisions of s 38. The claim made, and the award entered by the Arbitrator, commences on 6 November 2008. In the circumstances the Arbitrator’s award is to be confirmed. I note that the first 26 weeks of payments pursuant to s 38 concludes in March 2011 at which time an adjustment of Ms Palmer’s weekly entitlement will be necessary having regard to the provisions of s 38(3). The Arbitrator, in the course of his reasons, has made reference to the adjustment of that weekly sum (at [25]) and has cited the decision of Walker J in Aughterlony v Hydrotech Scienitfic Services Pty Ltd (1997) 15 NSWCCR 587 (Aughterlony). I note that the decision in Aughterlony was recently considered in the course of my determination in Pacific National (NSW) Pty Ltd v Plummer [2010] NSWWCCPD 109. The parties may be assisted in the task of calculation of entitlement by the observations found in that determination and the decisions referred to in the course of those reasons. The appeal is dismissed.
ORDERS
The orders and direction made by the Arbitrator and recorded in the Certificate of Determination dated 11 November 2010 are confirmed.
COSTS
The appellant is to pay Ms Palmer’s costs of this appeal.
Kevin O’Grady
Deputy President
14 March 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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