Greater Western Area Health Service v Greening
[2009] NSWWCCPD 109
•3 September 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Greater Western Area Health Service v Greening [2009] NSWWCCPD 109 | |||||
| APPELLANT: | Greater Western Area Health Service | |||||
| RESPONDENT: | Jessica Greening | |||||
| INSURER: | GIO General Insurance Limited | |||||
| FILE NUMBER: | A1-321/09 | |||||
| ARBITRATOR: | Mr C Messenger | |||||
| DATE OF ARBITRATOR’S DECISION: | 4 May 2009 | |||||
| DATE OF APPEAL DECISION: | 3 September 2009 | |||||
| SUBJECT MATTER OF DECISION: | Extending time to appeal; leave to appeal; weight of evidence. | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | DLA Phillips Fox | ||||
| Respondent: | Rickards Whiteley | |||||
| ORDERS MADE ON APPEAL: | Leave to Appeal is refused. The Appellant Employer is to pay the Respondent Worker’s costs of the Appeal. | |||||
BACKGROUND TO THE APPEAL
On 3 June 2009 Greater Western Area Health Service (‘the Health Service/the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 May 2009. The appeal was filed out of time.
The Respondent to the Appeal is Ms Jessica Greening (‘Ms Greening’).
Ms Greening commenced proceedings in the Commission on 19 January 2009, filing an Application to Resolve a Dispute. She alleged injuries to her thoracic and lumbar spine arising from the heavy and/or repetitive cleaning duties she was required to perform for the Appellant at the Canowindra Soldiers Memorial Hospital. Ms Greening alleged her injuries were caused by the nature and conditions of her employment with the Appellant up to 25 January 2008 or alternatively as a result of injuries sustained on 25 January 2008.
Ms Greening sought lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of an 18% whole person impairment, relating to injuries to her lumbar and thoracic spine, in the sum of $28,297.50 and compensation for pain and suffering pursuant to section 67 calculated at 50% of a most extreme case ($25,000).
On 9 February 2009 the Health Service filed it’s Reply. It denied Ms Greening suffered an injury within the meaning of either section 4 of the 1987 Act or section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). It alleged that if Ms Greening did suffer an injury, it did not arise out of, or in the course of, her employment with the Appellant.
The Health Service denied that compensation was payable to Ms Greening under the 1987 Act in respect of the alleged injury, as her employment was not substantial contributing factor to the injury pursuant to section 9A.
The matter was listed for a conciliation/arbitration hearing on 7 April 2009 in Orange. Both parties were represented by counsel. The parties were unable to resolve the claim and the matter proceeded to arbitration hearing. No oral evidence was called but both parties made oral submissions. At the conclusion of the hearing, the Arbitrator reserved his decision and issued a Certificate of Determination and a Statement of Reasons (‘Reasons’) on 4 May 2009.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 May 2009 records the Arbitrator’s orders as follows:
“1. The Applicant suffered an injury to the thoracic and lumbar spine on 25 January 2008 as a result of the nature and conditions of employment with the Respondent including a frank injury on 25 January 2008.
2. (a) I remit the matter to the Registrar for referral to an AMS.
(b) The degree of permanent impairment in respect of the thoracic and lumbar spine is to be referred by the Registrar to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment as a result of the nature and conditions of her employment including a frank injury on 25 January 2008.
3. The documents to be sent to the AMS are those accepted into these proceedings.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether time to appeal should be extended and, if so, whether the Arbitrator made errors of fact or discretion in reaching his determination
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352 (2) provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is:
(a)at least $5000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
Although the amount claimed in the Application to Resolve a Dispute is well in excess of the threshold requirements of section 352(2), Ms Greening disputes that the threshold requirements have been met. She submits that the requirements of subsection 2(a) and (b) must both be satisfied before the threshold has been met. She submits that as no compensation has been awarded the requirements of the subsection cannot be satisfied. I reject that submission as it is of no relevance that no amount of compensation has yet been awarded (see Mawson v Fletcher's International Exports Pty Ltd [2002] NSWWCCPD 5, Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62).
I am satisfied that the requirements of section 352(2) have been met.
Time
The appeal was filed on 3 June 2009, one day outside the 28-day time limit set out in section 352(4) of the 1998 Act.
An extension of time in which to appeal is governed by Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). Rule 16.2(11) provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] V R 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
Health Service’s submissions:
The Health Service submits that:
(a) its solicitor was unable to receive confirmation of instructions to proceed with the appeal prior to the expiration of the appeal period because the solicitor with carriage of the matter was away from the office on a family emergency and these are “exceptional circumstances” that warrant an extension of one day;
(b) the merits of the appeal that favour the granting of leave are because it raises issues of injury and the evidentiary onus upon Ms Greening to prove injury;
(c) there would be no injustice to Ms Greening should leave to appeal be granted because there has not been a gross delay by the Appellant in filing the appeal in the Commission, and
(d) as a matter of practicality the Appellant has consented to the worker being referred to an AMS for assessment of her impairment, pending the outcome of the appeal.
Ms Greening’s submissions:
Ms Greening submits:
(a) although there has not been great delay, a reasonable time period for lodgement of appeals has been mandated by legislation with the intent that any putative appellant seeking permission to lodge an appeal must show that exceptional circumstances have prevented lodgement of the appeal within the permitted time period of 28 days;
(b) the Health Service has not provided any formal statement from its solicitor as to what occurred in the period of time between the Arbitrator’s decision and the lodgement of the Appeal. All that the Health Service provided was an assertion within the application that its solicitor:
“was unable to receive confirmation of instructions to proceed with the Appeal prior to the expiration of the Appeal period. This was due to the Solicitor of [sic-with] carriage [of the matter] being away from the office on a family emergency.”
(c) whilst it is not disputed that one of the Appellant’s solicitors may have, at some time during the period following the Arbitrator’s decision, experienced an event which he may have considered a family emergency, and without wishing to cause embarrassment to the solicitor concerned in relation to the nature of the emergency, the Health Service has failed to explain the reason for delay in any meaningful way. In particular, no information has been provided as to the general nature of the family emergency, nor any details as to when it occurred within the context of the allowed appeal period, no details are provided as to the actual period the solicitor was away from the office, or any explanation as to the way in which such absence manifested itself in a failure to obtain instructions, particularly given the size and work system of the Appellant’s legal firm whereby two lawyers within a larger worker’s compensation team have at all times been responsible for the conduct of the Appellant’s case;
(d) the Commission has not been given any probative information as to the circumstances surrounding the failure to lodge the appeal within the period permitted, and certainly nothing which would satisfy the requirement to establish “exceptional circumstances”;
(e) based upon its failure to demonstrate “exceptional circumstances” leave should be refused, and
(f) the appeal is without merit and refusing leave to appeal would cause no demonstrable and substantial injustice.
Each application to extend the time in which to appeal must be dealt with on its own facts. Whilst I have serious reservations about whether the Health Service has demonstrated “exceptional circumstances” such as to justify an extension of time to appeal, to determine if the refusal to grant an extension of time will result in a “demonstrable and substantial injustice” it is necessary that I consider the merits of the appeal in detail.
EVIDENCE AND SUBMISSIONS
Health Service’s submissions
The Health Service submits that:
(a) the Arbitrator erred in giving any, or any substantial weight, to the expert opinion of Dr Burgess and in finding that the worker had established injury within the meaning of section 4 of the 1987 Act;
(b) the Arbitrator erred in finding that the medical opinion of Dr Burgess dated 11 August 2008 met the requirements for expert opinion as set out in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 (‘Makita’) per Heydon JA at 85 and South Western Sydney Area Health Service vEdmonds [2007] NSWCA 16 (‘Edmonds’) per McColl JA (at [127–131]);
(c) McColl JA in Edmonds at [129] held that Rule 70 of the Workers Compensation Commission Rules 2003 (see now Part 15 Rule 15.2 of the 2006 Rules) “reflects the fundamental principles of the common law concerning admissibility of evidence”. See also Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Hevi Lift’) citing with approval Heyden JA’s analysis of the admissibility of expert evidence in the Makita;
(d) in expressing the opinion “this lady has symptoms and signs of disc injury and nerve root irritation in both the thoracic and lumbar spines, notwithstanding her apparently normal MRI scan”, Dr Burgess failed to explain, or adequately explain, his opinion that Ms Greening suffered a “disc injury”. There is no reliable basis for the diagnosis in the absence of radiological evidence to support it. Alternatively, no reliable and cogent explanation has been given for the diagnosis in the absence of such evidence;
(e) Dr Burgess’ opinion is a bare ipse dixit and should be rejected, alternatively, given minimal weight;
(f) Dr O’Ryan’s clinical notes record Ms Greening was involved in a motorcycle accident on 8 August 2006. “This evidence is a history of contemporaneous complaints, albeit unrelated to the spine”;
(g) the history in relation to the motorcycle accident is in contrast to the evidence that on the day of the alleged work injury when Ms Greening attended upon Dr O’Ryan he recorded in his notes that the reason for her attendance was ADD (Attention Deficit Disorder). She made no complaint of any low back symptoms, and he took no history of work-related injuries;
(h) there is no contemporaneous evidence to support the finding of injury as alleged, and
(i) significant weight should be placed on the contemporaneous notes of Dr O’Ryan and the Arbitrator erred in not doing so, or alternatively, in placing undue weight on the unexplained diagnosis by Dr Burgess.
Ms Greening’s submissions
Ms Greening submits that:
(a) the Arbitrator did not make any error in accepting the opinion of Dr Burgess. The Arbitrator did not rely solely on the opinion of Dr Burgess. He also relied on the clinical notes of the worker’s initial treating general practitioner, Dr O’Ryan, and subsequent treating general practitioner, Dr Kumar, the treating specialist, Dr Bak, and Ms Greening’s statement;
(b) the expert opinion provided by Dr Burgess complies with the requirements of Makita and Edmonds;
(c) Dr Burgess has explained his opinion by reference to his clinical findings. At page 5 he said:
“the thoracic problem is causing intercostal neuralgia and [sic-a] low lumbar problem, right sciatica. The latter at least is accompanied by clear signs of significant radiculopathy”;
(d) these findings in turn arise from his physical examination set out on pages 3 at 4 of his report showing that:
“…she has lost 50% of extension, has paravertebral muscle spasms and accurately localised tenderness over L4/5 and L5/S1 interspinous ligaments posteriorly and the junction of her right buttock with the posterior aspect of the rights thigh. She is tender over T8/9 and the associated intercostal on the right. She has hypoaesthesia extending from the posterior aspect of her right thigh down to the anterolateral aspect of her right lower leg and the lateral aspect of her right foot. She has a centimetre of right calf wasting discernible weakness of the extensor hallucis longus and somewhat more noticeable weakness of the everters of her right foot. Knee jerks are present, very brisk and equal. She has a very brisk left ankle jerk and a slightly weaker right ankle jerk”.
(e) the Arbitrator was not in error in finding that Ms Greening was injured in the course of her work duties. That finding was available from the evidence of Drs Burgess, O’Ryan, Kumar and Bak, and from Ms Greening’s evidence;
(f)the notation in the clinical notes of Dr O’Ryan recording the reason for Ms Greening’s visit at 5:18 pm on 25 January 2008 as “ADD” is inconsistent with the Doctor’s request for diagnostic imaging of Ms Greening’s cervical, thoracic and lumbosacral spine. These investigations are consistent with the worker’s assertion that she suffered significant spinal pain at work that day and reported to her general practitioner immediately after work;
(g)Dr O’Ryan’s subsequent WorkCover certificates continued to certify a work-related injury on 25 January 2008. The Health Service has not sought any explanation from Dr O’Ryan regarding the apparent inconsistencies in his notes;
(h)no evidence was called from Ms Greening’s supervisor Jenny Middleton to contradict the worker’s evidence that she reported her injury to Ms Middleton on 25 January 2008, the day she was injured. The Arbitrator was entitled to draw a inference that any evidence from Ms Middleton would not assist the Appellant’s case, (Jones v Dunkel (1959) HCA 8; (1959) 101 CLR 298), and
(i)the weight of evidence supports the Arbitrator’s finding that Ms Greening was injured at work on 25 January 2008 as a result of the work duties as described.
DISCUSSION AND FINDINGS
The principle attack on the Arbitrator’s findings focus on his acceptance of the opinion expressed by Dr Burgess, the treating orthopaedic surgeon. Dr Burgess expressed the opinion that Ms Greening had symptoms and signs of disc injury and nerve root irritation in both the thoracic and lumbar spine, notwithstanding her apparently normal MRI scan. He opined that the thoracic problem was causing intercostal neuralgia and the lumbar problem was causing right sciatica. The latter at least, was accompanied by clear signs of significant radiculopathy.
Dr Burgess took a very detailed history from Ms Greening noting that as part of her job she was required to use a backpack vacuum cleaner. The routine cleaning involved an hour and a half or so, using the backpack vacuum cleaner, another hour of mopping followed by a final hour and a half or so, of polishing with a large rotary polisher. He recorded that Ms Greening noticed very quickly that this caused pain in her upper thoracic spine between her scapulae.
Dr Burgess noted that on 25 January 2008 her situation dramatically worsened. At that time, using the backpack aggravated her interscapular thoracic pain, precipitated pain radiated around her ribs on the right at the same level and brought about a quite severe pain in her lumbar spine which she described as being like a “pinched nerve”. She complained of discomfort in her buttocks, which spread into her legs and ultimately down to her feet on both sides.
In Awad v Department of Ageing, Disability and Home Care (NSW) [2008] NSWWCCPD 49, Deputy President Roche discussed at [34] –[38] recent authorities regarding the weight to be attached to bare conclusions expressed by experts. He said:
“34. The weight to be attached to a bare conclusion expressed by an expert was considered by the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) and in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Hevi Lift’). In Makita, Heydon JA (as he then was) referred to and applied the principles set out in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 where Lord President Cooper said:
‘...the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
35. Heydon JA added at [85] that:
‘...so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.’
36. In Hevi Lift, the worker suffered extreme pain in his back after getting up from a couch in staff quarters in which he resided for the purpose of carrying out his employment. An MRI scan revealed a central prolapsed disc at L4/5 associated with lumbar spinal stenosis. At the time of the injury the worker was employed as a helicopter pilot and was on call 24 hours a day. He argued he had sustained a “nature and conditions” injury as a result of his work as a pilot and that he sustained a frank injury as he got up from the couch. The employer conceded that the injury had been sustained in the course of Mr Etherington’s employment but argued that there was no evidence explaining how the employment substantially contributed to an injury, which occurred during a period of rest. The worker’s medical case consisted of a medical specialist who concluded, without explanation, that his employment had been a substantial contributing factor to his condition. The Court of Appeal held that the trial judge’s conclusion that the doctor’s opinion met the requirements of the Makita test was “plainly wrong” (per McColl JA at [80], Mason P and Beazley JA agreeing) because the doctor’s opinion did not go beyond a bare ipse dixit.
37. McColl JA added at [84] and [85] that:
‘It is not, in my view, necessary to consider for present purposes whether Heydon JA’s judgment in Makita set too high a standard for the admissibility of expert opinion evidence. The critical parts of Doctor Selby Brown and Doctor Khoo’s reports fell short, even by pre-Makita standards, of the standard required for admissibility. It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it: see Cross on Evidence at [29065]; R v Jenkins; Ex parte Morrison (No 2) [1949] VLR 277 at 303; R v Hally [1962] Qd R 214; Steffen v Ruban [1966] 2 NSWR 622; Perry v R (1990) 49 A Crim R 243 and, of course, the principal authorities examined by Heydon JA in Makita (at 729 - 741 [59] - [82]).
In my view, the primary judge should not have accorded the respondent’s medical reports any weight. They were incapable of constituting evidence capable of satisfying the s 9A requirement that the respondent’s employment was a substantial contributing factor to either of the mechanisms of injury upon which he relied.’ (emphasis added)
38. In Edmonds, the Court of Appeal held that the above principles apply to proceedings in the Commission (per McColl JA at [130] and [131]). In that case the worker injured her right knee in a frank injury in May 1993. In August 2002 she sought lump sum compensation for continuing problems with her right knee and for problems with her back and left knee. At the suggestion of the Arbitrator, Ms Edmonds amended her claim to rely on the disease provisions of the 1987 Act. The Arbitrator relied on the evidence from Dr Rivett that “in general all the problems are work related” and found in the worker’s favour. McColl JA (Giles and Tobias JJA agreeing) held that this opinion, without any explanation, amounted to a bare ipse dixit and offered no probative support for the Arbitrator’s conclusion (at [132]). Whilst Ms Edmonds thought that favouring her right leg threw strain onto her left side and her back, Dr Rivett did not indicate whether that was a valid proposition (at [138])”
Dr Burgess undertook a detailed examination of Ms Greening, and a detailed report of his findings is noted at [23(c)]. I do not accept the submission that Dr Burgess has failed to adequately explain his opinion or that it fails to meet the requirements for expert opinion set out in Makita and Edmonds. Dr Burgess recorded the detailed radiological investigations in the body of his report. It is clear that he considered the radiology including the absence of any significant abnormalities on the MRI. The doctor was not bound to accept the MRI findings, to the exclusion of all other factors in reaching a diagnosis. Dr Burgess is a very experienced orthopaedic surgeon. It is clear that he relied on his experience, detailed history and clinical examination in reaching his diagnosis.
The findings by Dr Burgess of accurately localised tenderness, significant evidence of hypoaesthesia, wasting of the calf muscle and discernible muscle weakness in her right lower leg and foot, provide a perfectly reasonable and detailed explanation for the doctor’s diagnosis and opinion.
In stating that:
“…her current problem and her lack of work capacity is in substantial part a legacy of the nature and conditions of her work initially but in particular the injury that occurred on 25th January, 2008, which aggravated her thoracic problem and brought to light the one in her lumbar spine”
Dr Burgess expressed a clear and unequivocal opinion that in his view Ms Greening’s condition resulted from her employment duties.
I accept Dr Burgess’ opinion and I reject the submission that his opinion is a bare ipse dixit. His opinion is adequately explained by the history he obtained, and from his clinical examination and findings.
It is patently obvious that the entry in Dr O’Ryan’s clinical notes of Friday, 25 January 2008 noting the “reason for contact” as “ADD (Attention Deficit Disorder)” is either an inaccurate or incomplete description of the reasons for the consultation. The clearest evidence of that is that the first “action” noted in the doctor’s notes is:
“diagnostic imaging requested: Cervical Spine T spine LS Spine standing if possible to scheck (sic check) for postural - ? anklylosing like problem”.
Other actions recorded in the doctor’s notes are consistent with treatment for Attention Deficit Disorder. However, it is clear that whatever else was discussed between the doctor and Ms Greening they certainly discussed issues relating to her cervical thoracic and lumbar spine. I reject the submission that Ms Greening made no complaint of any low back symptoms on the day of her accident to Dr O’Ryan. I note from a perusal of Dr O’Ryan’s clinical notes that on most occasions he either records a very brief reason for contact and in some cases simply records the reason as “consultation”. For these reasons, I placed very little weight on the entry in the doctor’s clinical notes for 25 January 2008 concerning the reasons for her visit to the doctor on that occasion.
A finding that Ms Greening promptly reported work-related injuries to Dr O’Ryan is consistent with the WorkCover medical certificate issued by Dr O’Ryan on 14 February 2008 which diagnosed “back strain pain” and expressed the opinion that the worker’s employment is a substantial contributing factor to the injury. This is so, notwithstanding his initial medical certificate issued on 25 January 2008 was a general medical certificate (not a WorkCover certificate) certifying that Ms Greening was not fit for physical work but fit for office work from 25 January to 31 January 2008.
I accept that the entry in Dr O’Ryan’s clinical notes of Ms Greening’s involvement in a motorcycle accident on 8 August 2006 recorded as “mba fall pee wee 80 [80 cc motorcycyle] sunday” is evidence of his practice of taking contemporaneous notes of complaints. However, for the reasons I have explained, I am of the view that the note recorded by Dr O’Ryan concerning the reason for Ms Greening’s visit on 25 January 2008 is incomplete.
Ms Greening said in her statement of evidence that she reported her injuries on 25 January 2008 to her supervisor Ms Jenny Middleton. Ms Middleton is an employee of the Health Service. She was not called to give evidence. No reason was advanced to explain why she was not called. In the circumstances I draw the inference that the evidence of Ms Middleton would not assist the Appellant’s case (Jones v Dunkel (1959) HCA 8)
Ms Greening alleged she was injured as a result of the nature and conditions of her employment with the Health Service and a result of a frank injury on 25 January 2008. The Health Service did not seek to cross-examine Ms Greening. I accept her evidence that the vacuum unit she was required to wear strapped to her back, was very heavy and weighed 20kg to 30kg. Ms Greening is a lady of small stature being 154cm in height and weighing approximately 49kg.
Ms Greening consulted Dr H. Bak, rheumatologist, who provided a report dated 13 November 2008. He obtained a history that in January 2008 Ms Greening was vacuuming at work with a back pack on, she turned the wrong way and she developed quite severe pain immediately afterwards in the back. After removing the backpack she still felt that something heavy was pressing on the back. On examination he noted diffuse tenderness along the whole of the spine. Clinical examination was otherwise normal. Dr Bak recommended an MRI scan of the cervical spine and pelvis. He refrained from a diagnosis in the absence of further radiological evidence. In the circumstances I have placed no weight on his report.
Dr Kumar is a general practitioner who took over the management of Ms Greening from Dr O’Ryan. He issued a series of WorkCover medical certificates restricting Ms Greening’s capacity for work from 7 May 2008 to 20 June 2008, based upon various diagnosis which included inflamed facet joints or musculoligamentous injury to the spine. There is no report in evidence from Dr Kumar. In response to the question on the WorkCover certificate as to how the injury occurred he simply stated “accident at work”.
The Health Service relied on a report from Dr Anthony Smith dated 5 December 2008. Dr Smith took a limited history. He noted that Ms Greening was working with the vacuum pack on her back, and without any accident or injury developed sudden pain and stiffness over the whole of the back. He noted that in addition to the vacuum work she had been pushing food trolleys during the same week. He failed to note that Ms Greening is extremely small in stature, or the weight of the vacuum pack or any detail of the amount of heavy physical work Ms Greening was required to perform.
Dr Smith conducted a clinical examination in which he noted:
“Clinical examination demonstrates her to sit and stand alternatively. She is in no distress otherwise. She stood erect with a spasm in the erector spinae mass. She has a normal lumbar lordosis.
She can reach only to the low thighs and resumes the erect position unremarkably.
Extension was half the expected range. Lateral flexion was normal. Rotation was 1/3 the expected range and caused pain in the thoracic area.
Straight leg raising went to 100% bilaterally. There was no hamstring spasm or pelvic tilting. She sat up to a position equivalent to 80° of straight leg raising and had pain in the hamstring compartments with slight leg raising bilaterally.
The calves are almost equal. The right calf is 0.3 cms narrower than the left calf. There is no neurological deficit in either lower limb.”
He went on to note that the:
“…MRI…demonstrated no normal disc in the lumbar spine, if one considers the papers published by Buirski and Pfirrmann. Burirski stated 69% of the discs reviewed were Type 1 appearance. Pfirrmann noted that it is Type 1 in 60% of the cases he reported on.”
The significance of the findings of these authors in the instant case is unexplained. Dr Smith noted abnormalities in the spine, which he considered consistent with Scheuermann’s disease in the lumbar spine. Dr Smith noted facet joint arthritis in multiple areas in the lower lumbar spine, which he regarded as the source of Ms Greening’s symptoms. He concluded Ms Greening’s condition was genetic and unrelated to her employment.
However, Dr Smith concluded that “any particular aggravation occurring with the backpack has long since settled”. Dr Smith referred in his report to a letter from a Dr Breit. Although Dr Breit may have examined and reported on Ms Greening, he has not given evidence in these proceedings. Dr Smith referred to Dr Breit’s diagnosis that Ms Greening suffers “an abnormal illness behaviour based on his examination”. The extent to which Dr Smith was influenced by Dr Breit’s views, if at all, is unexplained. However, it would be reasonable to infer that by having referred to it in his report, Dr Smith took Dr Breit’s views into account with the other matters to which he has referred.
I agree with the Arbitrator’s conclusion that the evidence of Dr Burgess is to be preferred over Dr Smith for the reasons given by him and these additional reasons. First, Dr Smith took a limited history, failing to refer to the particularly small stature of Ms Greening and the nature and extent of the heavy work that she was required to perform. Second, it is likely that Dr Smith was influenced by the opinion of Dr Breit. Dr Breit has not given evidence in these proceedings but he clearly formed an adverse opinion of Ms Greening. Third, whilst accepting that Ms Greening may have suffered from an aggravation of an underlying congenital condition, Dr Smith failed to explain why the aggravation of the condition has ceased.
I am comfortably satisfied the Ms Greening suffered injury during the course of her employment on 8 January 2000, when she injured the discs in her thoracic and lumbar spine causing nerve root irritation. I am satisfied based on Ms Greening’s evidence, that she immediately reported the injury to her supervisor Ms Middleton and that she immediately upon ceasing work attended upon her treating general practitioner, Dr O’Ryan, and sought treatment for the injuries she sustained.
Section 9A of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
The Arbitrator considered whether the Ms Greening’s employment was a substantial contributing factor to her injury at [20-21] of the reasons. He concluded that Mrs Greening had satisfied the requirements of section 9A. He considered the examples of matters to be taken into consideration pursuant to section 9A(2). For the reasons given by the Arbitrator, I am comfortably satisfied that the requirements of section 9A have been satisfied.
CONCLUSION
Having regard to the analysis of the issues sought to be argued on appeal, I am firmly of the view that the appeal has no merit and would fail, if time to appeal were extended. In these circumstances, the refusal to extend time to appeal will result in no injustice to the Health Service let alone any substantial injustice. Therefore, the application to extend time to appeal must be and is refused.
If I am wrong in this analysis, then it is necessary to consider whether “exceptional circumstances” exist. Other than an assertion that the solicitor with carriage of the matter was unable to receive ‘confirmation of instructions’ to proceed with the appeal, prior to the expiration of the appeal period, due to the absence of the solicitor from the office on a family emergency, no further information, or evidence, was provided to support a demonstration of exceptional circumstances.
The Health Service has not provided any information concerning the period the solicitor was absent from the office, nor any details as to when it occurred within the context of the allowed appeal period, nor the nature of the emergency concerned. No information has been provided to explain why the absence manifested itself in a failure to obtain the necessary ‘confirmation of instructions’. In the circumstances I am not satisfied that “exceptional circumstances” have been demonstrated such that to lose the right to seek leave to appeal would work a demonstrable and substantial injustice.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
His Hon. Judge G Keating
President
3 September 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE G KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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