HammondCare v Calka
[2016] NSWWCCPD 2
•20 January 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | HammondCare v Calka [2016] NSWWCCPD 2 | |
| APPELLANT: | HammondCare | |
| RESPONDENT: | Zbigniew Calka | |
| INSURER: | Employers Mutual NSW Ltd | |
| FILE NUMBER: | A1-5792/14 | |
| ARBITRATOR: | Ms J Snell | |
| DATE OF ARBITRATOR’S DECISION: | 6 October 2015 | |
| DATE OF APPEAL DECISION: | 20 January 2016 | |
| SUBJECT MATTER OF DECISION: | Injury; causation; factual findings; assessment of expert medical evidence; need for an expert to explain his or her opinion; application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; secondary psychological injury | |
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Hall & Wilcox |
| Respondent: | Shine Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Paragraph (c) of the orders made in the Certificate of Determination of 6 October 2015 is revoked and the following order is made: “(c) Award for the respondent in respect of the allegation that the applicant suffered a secondary psychological injury as a result of his physical injuries.” 2. All other orders in the Certificate of Determination of 6 October 2015 are confirmed. | |
INTRODUCTION
This appeal involves a challenge to an Arbitrator’s factual findings on injury and causation. For the reasons explained below, save for one minor issue, namely, whether the worker suffered a secondary psychological injury as a consequence of his physical injury, the appeal is unsuccessful.
BACKGROUND
The respondent worker, Zbigniew Calka, who was born in Poland in 1957 and came to Australia in 2006, started work for the appellant employer, HammondCare, a public company limited by guarantee, in their commercial laundry in 2010. His duties involved, among other things, loading and unloading industrial washing machines.
In summary, Mr Calka’s case was and is that he suffered an abdominal and groin injury (more specifically an adductor longus tendon injury) on 7 September 2012, when he was moving heavy laundry in the course of his employment. On that day, he removed heavy wet laundry from one washing machine, placed it on a trolley, and loaded it into another machine. He then went to the “folding room” and began folding towels. He dropped a towel on the floor. While straightening, after picking up the towel, he felt a very sharp pain in the right side of his groin, which spread to the left side over the next hour.
The appellant’s insurer initially accepted the claim and paid voluntary compensation until 22 February 2013. It formally disputed liability in a s 74 notice dated 5 March 2013. Regrettably, as is often the case with s 74 notices prepared by insurers, that notice is virtually incomprehensible.
Considering the matters identified in the Reply filed by the appellant with the Commission on 19 November 2014, and the submissions by counsel at the arbitration, the following emerges. The insurer admitted that, while picking up a towel at work on 7 September 2012, Mr Calka suffered a muscular strain to his abdomen, but the symptoms from that strain had resolved. It disputed that he suffered any other injury on 7 September 2012.
Mr Calka claimed weekly compensation from 22 February 2013 to date and continuing, compensation for the cost of medical and related treatment expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act), together with an order that the appellant meet the cost of proposed surgery to address the injury to the adductor longus tendon.
The evidence and submissions at the arbitration focused on the precise diagnosis of Mr Calka’s injury and its cause. The diagnosis shifted from an abdominal strain, psoas muscle strain, osteitis pubis and bilateral adductor longus injury. Mr Calka’s general practitioner also considered, but ultimately discounted, whether the pain was coming from an old injury to the back.
On the issue of diagnosis, Mr Calka relied on evidence from Dr Krishna, general surgeon, Dr Halpin, sports physician, and Dr Berry, general surgeon qualified by his solicitor, who all diagnosed his condition to be a bilateral adductor longus tendon injury, described as bilateral adductor tendinitis or enthesopathy (a disorder involving the attachment of a tendon or ligament to a bone).
The appellant relied on evidence from Dr Assem, a consultant in rehabilitation and musculoskeletal medicine, and Dr Breit, a consultant orthopaedic surgeon and Approved Medical Specialist (AMS), who prepared a non-binding Medical Assessment Certificate dealing with whether the proposed surgery was reasonably necessary as a result of the injury.
Dr Assem said that the mechanism of injury would suggest that Mr Calka suffered a lower abdominal strain when picking up a towel on 7 September 2012. He said that he would have expected resolution of his symptoms by the time of his examination on 19 November 2012. He added that Mr Calka’s tenderness on examination, and reproduction of symptoms with certain hip movements, suggested a strain to the obturator muscle or pelvic pathology, which needed further investigation, given that the symptoms had not improved within the expected timeframe.
Dr Breit said that it was difficult to indicate any one specific diagnosis, partly because of inconsistencies in the histories. There was a component of pain from the abdominal muscular insertions into the pelvis, particularly the pubis. However, he added that, given the injection to the left groin there was “almost certainly a component of adductor tendonitis despite the lack of pathology on MRI and the same may be present on the right”.
Dr Breit’s reference to the injection to the left groin was a reference to the injection of local anaesthetic by Dr Halpin on 7 April 2013, which reproduced Mr Calka’s left lower abdominal pain and, following the injection, relieved greater than 70 per cent of that pain, with Mr Calka having markedly greater strength on resisted adduction and being able to sit up essentially without pain. (Dr Halpin and Dr Berry both relied on Mr Calka’s response to the injection, among other things, to support their conclusion that he suffered from a bilateral adductor longus tendon injury.)
Notwithstanding his comment about the significance of the injection, Dr Breit said that there was no evidence of an adductor injury, noting that the onset of adductor pain was “very vague” and appeared to have been “quite some time after the injury”. He said that there may have been a lower abdominal strain and some tendonotic changes, which were not related to Mr Calka’s employment, “and the symptoms would have occurred whether he was employed or not had he carried out the same sort of activity or they may have simply occurred when coughing, sneezing or straining to go to the toilet”.
On causation, Dr Assem said that the strain he diagnosed developed after Mr Calka bent forward to pick up a towel off the ground, which was a “relatively trivial incident”. He did not consider the physical aspects of the tasks Mr Calka performed leading up to him experiencing pain. Dr Berry said that Mr Calka’s work was heavy and involved lifting, twisting and bending, which he felt was causative of the injury.
In reasons expressed with admirable clarity, the Arbitrator did not accept the appellant’s contention that Mr Calka’s injury on 7 September 2012 could be categorised as only an abdominal strain. She accepted the opinions of Drs Krishna, Halpin and Berry on diagnosis and Dr Berry’s evidence on causation. Accepting the evidence from Dr Halpin and Dr Berry, she found that the proposed surgery is reasonably necessary as a result of the found injury. She also found that Mr Calka suffered a secondary psychological injury as a result of his physical injury.
Consistent with the Arbitrator’s findings, the Commission issued a Certificate of Determination, on 6 October 2015, in the following terms:
“(a) Pursuant to section 4 of the Workers Compensation Act 1987 the applicant sustained injury to his abdomen /groin, specifically to his bilateral adductor longus, in the course of his employment with the respondent on 7 September 2012.
(b)Pursuant to section 9A of the Workers Compensation Act 1987 the applicant’s employment was a substantial contributing factor to the injury.
(c)Award for the applicant in relation to the allegation of secondary psychological condition.
(d)Respondent to pay the applicant weekly compensation from 22 February 2013 to 31 August 2015 on the basis of total incapacity as follows:
(a)From 22 February 2013 to 4 March 2013 at the maximum statutory rate for a single worker of $439.50;
(b)From 5 March 2013 to 31 March 2013 at the maximum statutory rate for a single worker of $439.50 plus a dependent child $82.80;
(c)From 1 April 2013 to 30 September 2013 at the maximum statutory rate for a single worker of $447.70 plus a dependent child $84.30;
(d)From 1 October 2013 to 14 October 2013 at the maximum statutory rate for a single worker of $452.60 plus a dependent child $85.20;
(e)From 15 October 2013 to 21 November 2013 at the maximum statutory rate for a single worker of $452.60;
(f)From 22 November 2013 to 6 December 2013 at the maximum statutory rate for a single worker of $452.60 plus a dependent child $85.20;
(g)From 7 December 2013 to 2 March 2014 at the maximum statutory rate for a single worker of $452.60;
(h)From 3 March 2014 to 31 March 2014 at the maximum statutory rate for a single worker of $452.60 plus a dependent child $85.20;
(i)From 1 April 2014 to 30 September 2014 at the maximum statutory rate for a single worker of $458.40 plus a dependent child $86.30;
(j)From 1 October 2014 to 31 March 2015 at the maximum statutory rate for a single worker of $464.30 plus a dependent child $87.40; and
(k)From 1 April 2015 to 31 August 2015 at the maximum statutory rate for a single worker of $470.20 plus a dependent child $88.60.
(e) Respondent to pay the applicant’s incurred medical and related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and /or Medicare Notice of Charge.
(f) The proposed bilateral adductor longus surgery is reasonably necessary related to injury sustained by the applicant in the course of his employment with the respondent on 7 September 2012.
(g) The respondent is to pay for the costs of the proposed bilateral adductor longus surgery in accordance with the applicable WorkCover gazetted rates.
(h) The parties are to either come to an agreement in relation to the entitlement to weekly compensation from 1 September 2015 or to file written submissions dealing with Workers Compensation Amendment (Weekly Payments) Regulation 2015.
(i) Liberty to apply to correct any mathematical errors.”
The employer has appealed.
ON THE PAPERS
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 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) concluding that Dr Berry supported the proposition that Mr Calka has sustained injury while moving wet washing (injury);
(b) directing herself that there was evidence supporting the proposition that Mr Calka had sustained injury while moving wet washing (injury);
(c) directing herself that the interval between moving the washing and bending to pick up a towel was “only moments” and that she was entitled to ignore it (the interval between moving the washing and bending to pick up a towel);
(d) concluding that there was evidence to satisfy the standard required by Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita); Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Hevi Lift); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) and Rule 70 of the Workers Compensation Commission Rules 2003 (Makita v Sprowles);
(e) directing herself that the only evidence suggesting a causal link between coughing, sneezing or straining to go to the toilet, on the one hand, and the existence of tendonotic changes, on the other, was that of “a miss-statement [sic] of Dr Halpin’s comment” when in fact there was opinion evidence from Dr Breit supporting the link, independent of Dr Halpin (coughing and sneezing), and
(f) finding a secondary psychological condition when the same was not contended for by Mr Calka in submissions, nor formed part of the claim disputed by the insurer, nor was supported by the evidence (secondary psychological injury).
INJURY
Submissions
Counsel for the appellant, Mr Perry, submitted that the following “facts” were critical to the issue of whether Dr Berry supported Mr Calka’s assertion:
(a) at about 9.30 pm on 7 September 2012, Mr Calka moved washing which was wet from a washing machine onto a trolley;
(b) while the contents of the washing machine might have weighed in total 45 kg, there was no evidence to the effect that Mr Calka lifted 45 kg in performing that task;
(c) when Mr Calka had moved the washing onto the trolley, he then moved the washing from that trolley to another washing machine;
(d) there was no evidence that Mr Calka lifted 45 kg. The evidence was simply that he transferred the load from the trolley to another washing machine;
(e) there was no evidence that Mr Calka had any difficulty in transferring the washing to the trolley or from the trolley to the second machine;
(f) Mr Calka then moved to the folding room. Shortly after commencing to fold towels, Mr Calka saw that one towel had fallen to the floor;
(g) Mr Calka picked up the towel and, as he straightened, felt a sharp pain in the right side of his groin, and
(h) the only evidence as to the time that elapsed between the conclusion of the transfer of the washing until the incident with the towel was “a couple of minutes” (Dr Assem’s report of 19 November 2012).
Mr Perry submitted that the Arbitrator erred in concluding, as she did at [107], that it was “probable that [Mr Calka] injured himself in moving the heavy wet washing and the revelation of symptoms occurred, what on any account, is only moments later when he picked up a towel from the floor”. He said that the only evidence of the time between the conclusion of the transfer of the washing till the incident with the towel was in Dr Assem’s history, where he recorded that the time was “a couple of minutes”.
Aside from the absence of an explanation as to why two minutes ought to be described as “only moments”, contrary to the Arbitrator’s conclusion, Dr Berry did not support the proposition expressed at [107]. The highest that Dr Berry put the case, according to Mr Perry, was to say that Mr Calka had “a history of sustaining a twisting injury to the groins as a result of heavy lifting at work”. Dr Berry did not identify the transfer of washing in this statement.
In his report of 20 May 2015, Dr Berry said “[w]ith regard to work-causation, this man does not have a history to suggest any other cause apart from his work which was heavy and involved heavy lifting, twisting and bending.”
Mr Perry contended that this statement is even further removed from an opinion supporting the proposition expressed by the Arbitrator at [107]. If the statement “his work which was heavy and involved lifting, twisting and bending” can be taken as meaning “the incident of 7 September 2012 when the worker transferred laundry from one machine to another”, and it cannot, it would nonetheless be an opinion which offends the “strictures” in Makita at [85].
Mr Perry argued that there was no “demonstration” that Dr Berry considered particular matters relating to the manner in which the washing was transferred, how far Mr Calka walked after he completed the transfer, the time lapse between the transfer and the straightening to pick up the towel, or the mechanism by which a condition of the type considered to exist by Dr Berry could result from activity during which there were no symptoms of pain or discomfort.
Accordingly, the only evidence that could be cited in support of the proposition advanced by the Arbitrator was “not evidence at all”, did not support the proposition attributed to it, and if it did, offended established rules relating to probative evidence. Dr Berry did not identify the laundry transfer on 7 September 2012 (as having caused the injury) and the Arbitrator erred in considering that he did.
Mr Perry referred to the incorrect histories recorded by Dr Halpin and Dr Krishna as to the circumstances of the injury and submitted that their opinions could not support “the link contended for by the worker”. He said that it was for Mr Calka to bring evidence in support of the “thesis” for which he contended (on the causal link). He failed to do so and the Arbitrator erred in concluding that he had.
Discussion and findings
Mr Perry’s submissions, which have largely ignored the Arbitrator’s reasons, selectively quoted from the evidence, and ignored recent and binding authority, cannot be accepted.
The Arbitrator quoted (at [80]) the following history from Dr Berry’s report of 13 November 2013:
“…he had to lift 40 kgs of wet washing onto a trolley and then move it to another machine. After doing this he went to the folding room, he folded one towel, one dropped to the ground and as he bent down and straightened up he experienced a sharp pain in the right groin.
The pain spread to the left groin over the next hour…”
This history was largely consistent with Mr Calka’s evidence, save that Mr Calka said that he had to “remove a very wet and heavy (>45kg) load to the trolley and then from the trolley to another washing machine”. This difference makes no change to the weight to be attached to Dr Berry’s opinion, though it does destroy Mr Perry’s contention that there was no evidence that Mr Calka lifted 45 kg. There was unchallenged and uncontradicted evidence to that effect from Mr Calka. Even the most casual and inexperienced observer would appreciate that Mr Calka was not asserting that he lifted a 45 kg weight in one movement. Thus, Mr Perry’s second and fourth “facts”, set out at [21] above, are plainly wrong and his submission based on them is seriously undermined as a result.
The implied suggestion that the Arbitrator should have explained why “two minutes” ought to be described as “only moments” is nonsense. The Arbitrator’s reference to “only moments” was an appropriate description of what was obviously a short time between finishing the transfer to the second washing machine and experiencing pain when straightening while picking up a towel. Nothing in Dr Assem’s history demonstrates error by the Arbitrator in using the expression “only moments”.
The submission that Dr Berry does not support the conclusion expressed by the Arbitrator at [107] is wrong and involves a failure to consider the evidence and the Arbitrator’s reasons as a whole. In addition to the passages quoted by Mr Perry, Dr Berry said, under “Opinion” in his report of 13 November 2013:
“On the basis of today’s examination I would consider that this man’s ongoing groin and thigh pain is work caused as a result of the heavy lifting and twisting he carried out at work.”
In his second report of 13 November 2013, Dr Berry confirmed his opinion on diagnosis and added, in response to a question about the relationship between any injury and any work incidents recited in the history, “I would consider this a direct result of his work injury”.
The Arbitrator noted this evidence (at [85]) and added, at [86]:
“86.Dr Berry does have a history that accords with that of Mr Calka’s statement and includes reference to the towel and that the pain was experienced as he straightened up from picking up the towel. Nonetheless[,] Dr Berry expressed the opinion that Mr Calka had a twisting injury to the groins as a result of heavy lifting at work. The [appellant] at T2-page 50 takes issue with the fact that Dr Berry uses the word ‘groin’ whereas Dr Maharaj [Mr Calka’s treating general practitioner] referred to the pain being in the abdomen. However[,] as commented previously the Liverpool Hospital notes from the day after the accident refer to pain on both sides in the iliac fossas. So I do not accept the [appellant’s] argument.”
On the question of whether Mr Calka’s activities on 7 September 2012 involved twisting, the Arbitrator referred (at [101]) to Dr Assem’s evidence that adductor enthesopathy is a common sporting injury occurring when excessive stress is placed on the adductor tendon. He gave examples of the actions that could cause that stress, one of which was twisting. She thought it surprising that Dr Assem did not consider the activities Mr Calka performed immediately before he felt pain when picking up the towel. She continued, at [101]:
“Dr Breit had noted that Mr Calka was tall and the machine was a metre off the ground and so Mr Calka had to bend to get the washing out. It is also evident that he placed the wet washing on a trolley and then had to put it into another washing machine. I find as a matter of commonsense that this task would have involved some twisting. This has not, in my view, been adequately considered by Dr Breit or Dr Assem as to whether it could have caused or contributed to injury to Mr Calka. Therefore[,] I find their comments about the mechanism of injury need to be treated with caution.”
The findings that the task of moving the washing involved bending and twisting have not been challenged and, in any event, were clearly open on the evidence.
I do not accept that Dr Berry’s opinion in his report of 20 May 2015, quoted by Mr Perry at [24] above, namely, “[w]ith regard to work-causation, this man does not have a history to suggest any other cause apart from his work which was heavy and involved heavy lifting, twisting and bending”, is even further removed from an opinion supporting the proposition expressed by the Arbitrator at [107]. The fact that there is no history to suggest any other cause of Mr Calka’s injury, apart from work that involved heavy lifting, twisting and bending, provides strong support for the Arbitrator’s conclusion that work caused Mr Calka’s injury. (Whether the injury could have been caused by coughing, sneezing or straining to go to the toilet is considered below at [92]–[108].)
More importantly, Dr Berry also said in the May 2015 report “[t]his man did lift 40 kilograms of washing out of a defective washing machine and very shortly thereafter experienced pain in the lower abdomen and groins” (emphasis added). This statement, which the Arbitrator referred to at [98], read with Dr Berry’s other statements on causation, provided sound support for the Arbitrator’s conclusions.
To properly understand the Arbitrator’s reasons at [107], it is appropriate to set out paragraph [106] and the whole of [107]:
“106.The relevant principles of onus of proof were discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]:
‘A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.’
107.In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR; (1994) NSWCCR 796 (Kooragang) Kirby P (as he then was) found ‘what is required is a commonsense evaluation of the causal chain.’ I am satisfied having considered all of the treating medical reports and investigations carefully, and as a whole, commonsense necessitates a finding that the causal chain included the lifting of the heavy washing and applying the principles in Nguyen I am satisfied that Mr Calka has discharged his onus of proof. I am satisfied that on 7 September 2012 while he was at work with the respondent he suffered an injury which has ultimately being [sic, been] diagnosed as affecting his bilateral adductor longus. Mr Calka in Part 4 of the Application did not refer to the towel incident but relied upon lifting heavy washing and this is ultimately what Dr Berry found. As noted both Drs Assem and Breit found bending down to pick up a towel to be trivial and so I accept the submission of Mr Calka’s counsel that it was probable that he injured himself in moving the heavy wet washing and the revelation of symptoms occurred, what on any account, is only moments later when he picked up a towel from the floor.”
The Arbitrator’s conclusions were open on the evidence and disclosed no error.
Mr Perry’s reliance on Makita, and the other authorities he cited, is misplaced. As it is accepted that Dr Berry took a substantially accurate history, the criticism seems to be that he failed to demonstrate the “scientific or other intellectual basis of the conclusions reached” (Makita at [85]). I do not accept that submission, which has ignored the correct approach to expert evidence in the Commission, as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock).
Hancock made it clear that, even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “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” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) at [82]).
Beazley JA added at [83], in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (at [85]).
In Hancock, the primary judge rejected the evidence from the treating specialist (Dr Summersell) because he did not have a history of significant subsequent non-work incidents and he had not provided an “explanation of the scientific or other intellectual basis for the conclusion reached” (see the quote at [89] of Hancock). Dealing with the second point, Beazley JA said, at [90]:
“Dr Summersell stated that, in his opinion, he suspected that ‘the subcutaneous changes are present due to a recent fall that [the appellant] had due to the pre-existing instability of his knee’. This opinion provided the scientific basis for the conclusion he reached in the respective reports, that the injury sustained in the work incident was responsible for the current condition of the appellant’s knee. Accordingly, there was no failure to comply with the second limb of Makita…” (emphasis included in original)
What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]). An expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
The point is further illustrated in Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 where Hodgson JA (Tobias and McColl JJA agreeing) held (at [20]) that a Deputy President did not err in accepting the opinion of Dr Conrad in circumstances where the doctor did not “elaborate on reasons why the MRI did not alter his previous opinion, and it may have been preferable if he had done so”. (In fact, Dr Conrad had provided no reasons why the MRI did not alter his opinion.) In Hancock, Dr Summersell’s evidence, which was based on an incomplete history, explained the scientific basis for his opinion in somewhat less detail than that provided by Dr Berry, whose opinion was based on the correct history.
Dr Berry is an experienced specialist general surgeon. He is a Fellow of the Royal Australasian College of Surgeons, a Certified Independent Medical Examiner, and an Approved Medical Specialist with the Commission, the NSW Motor Accidents Authority and Comcare. He took a detailed and accurate history of Mr Calka’s activities on 7 September 2012 and, in particular, of exactly when Mr Calka first experienced symptoms on that day, namely, “very shortly” after he had moved the wet washing.
Armed with that history, his findings on examination, the radiological investigations and, in particular, the results of the injection by Dr Halpin, Dr Berry concluded that Mr Calka’s “ongoing groin and thigh pain is work caused as a result of heavy lifting and twisting he carried out at work”, that Mr Calka’s bilateral adductor tendon strains were “a direct result of his work injury”, and that, with regard to “work-causation”, Mr Calka did “not have a history to suggest any other cause apart from his work which was heavy and involved lifting, twisting and bending”. These statements provided the explanation for Dr Berry’s conclusions.
The complaint that there is no “demonstration” that Dr Berry considered the matters referred to by Mr Perry is without substance. Dr Berry’s history was that Mr Calka had to lift “40 kgs of wet washing onto a trolley and move it to another machine”. Based on this history, it was open to the doctor to conclude that that activity involved “heavy lifting and twisting”. Moreover, for reasons given, which have not been challenged, the Arbitrator accepted that the transfer of the washing would have involved bending and twisting (see [36] above).
How far Mr Calka walked after he transferred the washing is of limited, if any, relevance. If it were seriously suggested that this distance was of importance, the appellant could have called evidence about it. It did not. The point is without substance. The reasonable inference is that the distance between where Mr Calka finished the transfer and the folding room was of no significance.
It is correct that Dr Berry did not record the time between the transfer and the straightening up while picking up the towel. His history was that “[a]fter doing this [the transfer of the washing] [Mr Calka] went to the folding room, he folded one towel, one dropped to the ground and as he bent down and straightened up he experienced a sharp pain in the right groin”. He was well aware that there was a time gap between Mr Calka moving the washing and the onset of his symptoms. The compelling conclusion is that, consistent with the evidence, the time gap was very short.
The Arbitrator described the time as “only moments”. Dr Assem recorded it to be a “couple of minutes”. Mr Calka did not give a time, but said:
“When I finished that task [the transfer of the washing] I went to the folding room, where I began to fold towels. As I did, one of the towels accidentally dropped to the floor. I picked up the towel and as I straightened I felt a very sharp pain in the right side of my groin.” (He added that, over the next hour, the pain spread to the left side.)
This evidence was consistent with the time between the transfer of the washing and the picking up of the towel being short. (I note also Dr Berry’s history that Mr Calka bent to pick up the dropped towel after he had only folded one towel, that is, immediately after he had just started folding towels.) In particular, Mr Calka’s evidence confirms, as Dr Berry noted, that there was no history of any other relevant event, apart from Mr Calka’s work, that occurred between finishing the transfer and experiencing pain while picking up the towel. It follows that Dr Berry’s failure to record the time between the transfer and Mr Calka experiencing pain is of no consequence.
It was not necessary for Dr Berry to explain the mechanism by which a condition found to exist by Dr Berry could result from activity during which there were no symptoms. It is patently obvious, given the history recorded by Dr Berry, that he did not consider the short time between the transfer and the development of symptoms to be relevant. His failure to say that is of no consequence. As explained above, he fully and adequately explained the basis for his opinion on causation and it was open to the Arbitrator to accept that opinion.
The submission that Dr Berry did not identify the laundry transfer on 7 September 2012 as having caused the injury is plainly wrong. That was precisely the activity that Dr Berry described as “the heavy lifting and twisting [Mr Calka] carried out at work” that caused Mr Calka’s injury.
As far as the causation issue is concerned, the relevance of Mr Perry’s attack on the evidence from Dr Krishna and Dr Halpin is unclear. The Arbitrator acknowledged that both doctors had incorrect histories of what Mr Calka was doing when he experienced pain. Dealing with Dr Krishna’s evidence, the Arbitrator said, at [65]:
“I find that I cannot rely on Dr Krishna’s opinion as to causation because of the error in the history but that does not preclude reliance on his diagnosis that Mr Calka has a[n] adductor longus enthesopathy.”
However, she added (at [67]) that she accepted Dr Krishna’s evidence on diagnosis. That finding was open on the evidence.
Dealing with Dr Halpin’s evidence on causation, the Arbitrator said, at [75]:
“I make the same findings about reliance on his opinion about causation as with that of Dr Krishna but I find I can rely on his diagnosis about the adductor longus tendons due to the result of the injection he performed.”
Thus, as the Arbitrator did not rely on either Dr Halpin or Dr Krishna on the causation issue, the attack on this part of their evidence is irrelevant to the determination and without substance. It is not an error of law to accept part of a witness’s evidence but not all of it (Byers v Civil Aviation Safety Authority [2005] FCA 1751 at [33]). There is no requirement for the judge to accept the whole of the evidence of any one witness (Chanaa v Zarour [2011] NSWCA 199 at [86] per Campbell JA (Bathurst CJ and Tobias AJA agreeing; see also similar observations by Beazley P (McDougall J agreeing) in Sgro v Australian Associated Motor Insurers [2015] NSWCA 262 at [43])).
Mr Calka’s evidence “in support of the thesis” for which he contended on the causation issue was in his own statement and the evidence from Dr Berry. For the reasons explained above, it was open to the Arbitrator to accept that evidence.
THE INTERVAL BETWEEN MOVING THE WASHING AND BENDING TO PICK UP A TOWEL
Submissions
Mr Perry referred to Dr Assem’s evidence that the time between the transfer and the development of symptoms was a “couple of minutes”. He said that Mr Calka experienced no symptoms while transferring the washing, either to the trolley or to the second washing machine. During the “couple of minutes”, Mr Calka moved to the folding room and commenced his work there. In this time, he was asymptomatic.
Mr Perry submitted that there was no medical evidence addressing how it could be that an injury sustained in the laundry could have failed to cause Mr Calka a restriction at the time of its occurrence and while he walked from the laundry to the folding room. It was not open to the Arbitrator to describe the interval as “only moments” and dismiss it as of no significance in the absence of evidence.
He contended that the observations in Devi v Fairfield Nursing Home [2010] NSWWCCPD 131 (Devi) were “apposite”. At [156] of Devi, the President observed that the Commission is bound to apply substantive rules of law.
Discussion and findings
The points raised by Mr Perry at [63] and [64] above have been addressed earlier in this decision. It was open to the Arbitrator to describe the relevant interval as “only moments”. The interval was of no consequence and the Arbitrator did not err in her consideration of it.
Devi does not assist the appellant. As the Arbitrator noted, in Devi there was an interval of months between the alleged workplace events and the acute experience of neck pain when the worker lifted her child at home. The general practitioner’s notes did not refer to any neck injury until after the worker lifted her child. The doctors upon whom the worker relied did not have that history and did not know about the significant delay in the onset of neck symptoms, or that those symptoms came on after the worker lifted her child at home. The facts in the present case are very different and nothing in Devi points to error by the Arbitrator.
It is correct that, as pointed out in Edmonds (at [90]), and noted in Devi at [156], provisions such as s 354(3) of the 1998 Act, which states that the Commission is not bound by the rules of evidence, do not exonerate the Commission from the application of substantive rules of law. Dealing with this provision, and with Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011 (which is in identical terms to Rule 70 of the Workers Compensation Commission Rules 2003, which was discussed in Edmonds), Beazley JA said, at [82] in Hancock:
“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.”
As I noted earlier, her Honour added (at [83]) that “[i]n the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight”. Her Honour then explained the correct application of Makita to cases in the Commission and that explanation, and its application to the present case, has been discussed above. Mr Perry’s submissions have ignored Hancock and its application to the present case. Given that counsel have a duty to bring to the tribunal’s attention all relevant authorities, that was more than a little surprising, to say the least.
MAKITA v SPROWLES
Submissions
Mr Perry referred to the Arbitrator’s observation (at [105]) that Liverpool Hospital recorded a history of unloading the washing. However, so it was contended, “this fact is of no probative value at all”. Mr Calka was at pains to “vent a view that a washing machine required repair because it shook and vibrated and that this caused water to pour onto the floor, an obvious hazard in the laundry …, may himself hold the view that the machine somehow caused his injury” (emphasis included in Mr Perry’s submissions). Thus, after experiencing symptoms subsequently to bending to the floor to lift a towel, he blamed the defective machine. This does not advance his case at all.
Mr Perry made the point that the observation of McDougall J in Nguyen, quoted by the Arbitrator at [106] and reproduced at [40] above, is not a statement that a tribunal can dispense “with the requirement of evidence”. Rather, it is a stricture, where there is competing evidence, that the tribunal of fact ought not prefer one body of evidence unless it is persuaded.
In this case, the conclusion that the moving of laundry was the cause of the condition diagnosed five months later by Dr Krishna was not a conclusion that was the subject of an expert opinion the basis for which carried an explanation by the expert expressing it. The conclusion therefore offended the observations of McColl JA in Hevi Lift, which were affirmed in Edmonds at [130].
The Arbitrator’s approach to the evidence “conflicted with WCCR rule 70”.
Discussion and findings
The Arbitrator’s reference to the Liverpool Hospital discharge referral was in the context of distinguishing the facts in the present case from those in Devi. Unlike Devi, where there was no mention of neck pain for several months after the work incident said to have caused it, the Liverpool Hospital referral recorded, within 24 hours of Mr Calka moving the washing, that Mr Calka “presented with lower abdominal pain after
liftingunloading a heavy washing machine” and “Pt states that last night he wasmovingunloading a washing machine, he bent over and picked it up and later developed lower abdo pain” (the words “unloading” have been written in handwriting).The diagnosis made at the hospital was “abdominal pain”. However, there was also a reference to “pain in RIF, LIF & suprapubic region” and that the pain was mild and intermittent and only present with bending over and stretching. The Arbitrator inferred, and it has not been challenged, that “RIF” means right iliac fossa and “LIF” means left iliac fossa. The findings on examination included that there was mild abdominal tenderness over the right and left iliac fossas and suprapubically with no rebound, guarding, rigidity or peritonisms and “no palpable inguinal hernias”. In other words, within 24 hours of the work injury, Mr Calka was complaining of symptoms in the region of both groins.
In these circumstances, it was open to the Arbitrator to note the complaints recorded at Liverpool Hospital and to contrast them with the significant delay in complaint of neck pain in Devi.
The relevance of Mr Perry’s reference to Mr Calka’s evidence about the washing machine requiring repair is unclear. Mr Calka gave unchallenged and uncontradicted evidence that one of the 45 kg washing machines malfunctioned on the night of 7 September 2012, it having “shook and vibrated” when the door was opened a few days prior. Because of that malfunction, he had to transfer a heavy load of washing to another machine. If, in the process of transferring the washing, Mr Calka suffered an injury it could be argued that the injury resulted from the malfunctioning of the machine. However, the fact that the machine malfunctioned was not relevant to the issue before the Arbitrator.
The issue before her was whether Mr Calka suffered an injury while moving the washing. The reason why the washing had to be moved was irrelevant. The causation issue required, as the Arbitrator appreciated, an assessment of all the evidence, both expert and lay. After assessing that evidence, and for reasons stated, the Arbitrator found in favour of Mr Calka on causation. For the reasons explained earlier in this decision, that finding was open on the evidence and involved no error.
The Arbitrator’s approach did not “dispense with the requirement of evidence” and Mr Perry’s implied suggestion that she did is without substance. She was persuaded, having regard to the whole of the evidence, that Mr Calka had made out his case on causation. That finding was open on the evidence.
The reference to the condition having been diagnosed five months later has ignored the fact that Mr Calka had been complaining of relevant symptoms, as noted at Liverpool Hospital, from within hours of the occurrence. That the precise diagnosis of the condition (bilateral adductor longus tendon injury) was not made until some months later is not, in the circumstances of this case, of any consequence.
Mr Perry’s submission that the Arbitrator’s conclusion has “offended the observations” of McColl JA in Hevi Lift, at [84], is wrong. At that paragraph, her Honour said:
“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]). Nothing in Brown v Iontask Pty Ltd [(2002) 24 NSWCCR 231] should be understood as warranting departure from those principles.”
In Hancock, Beazley JA acknowledged these observations by McColl JA and explained the correct approach to Makita in cases in the Commission. For the reasons explained earlier, applying that approach, it was open to the Arbitrator to accept Dr Berry’s evidence.
The submission that the Arbitrator’s approach “conflicted” with “rule 70” was, I assume, a reference to Pt 15 r 15.2, which is in the same terms as rule 70 of the 2003 Rules. I do not accept that submission. Though there is no prohibition on opinion evidence (or hearsay), “the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material” (per Allsop P (McColl JA agreeing) in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [2]).
I am comfortably satisfied that the material upon which the Arbitrator relied was satisfactory, in the probative sense, and that it supported her conclusion on causation.
COUGHING AND SNEEZING
Submissions
Mr Perry referred to Dr Breit’s observation that none of the notes between the date of injury and 1 March 2013 suggested an adductor tendon injury, though they referred to lower abdominal pain. Dr Breit said that the “onset of the claimed adductor pain is very vague and appears to have been quite some time after the injury”. Mr Perry submitted that the point made by Dr Breit was an acceptance that there “may have been some tendonotic changes”, but they were not related to employment.
Dr Breit’s opinion was that “there is overwhelming evidence that this man’s original presentation was of lower abdominal pain, probably at the muscular insertions into the pubis”. Mr Perry submitted that Dr Breit accepted that such a strain could have occurred as a result of bending down to pick up a towel and then straightening. He said that the Arbitrator rejected Dr Breit’s evidence because of the absence of evidence of the occurrence of any of the three events identified by him (coughing, sneezing or straining to go to the toilet) as potentially causative of a tendonotic change.
Mr Perry contended that the Arbitrator’s “rationale is not sustainable”. He said that the “point clearly made by [Dr Breit] is that it need not be regarded as surprising that Dr Krishna found some tendonotic changes. There are a number of potential explanations, none of them bizarre or unusual, as to why those changes might be found”.
Mr Perry argued that the Arbitrator “implausibly rejected” his submission that Dr Halpin accepted the “proposition” that “both coughing and sneezing can ‘aggravate’ a condition”, which was “entirely consistent with [Dr Breit’s] observation that those activities can also be causative”. Thus, so it was submitted, there is support from Dr Halpin’s evidence for Dr Breit’s observation.
In this context, Mr Perry submitted that s 9A of the 1987 Act is relevant. If it is the case “that the condition could be brought on by coughing, sneezing or straining, then the arbitrator was bound to consider these potential causes in the light of sec 9A(2)(d)” and she did not.
He said that Dr Breit clearly “discerned between” the symptoms recorded by Dr Krishna, namely, (at the) left adductor longus tendon insertion site, and the lower abdominal pain recorded by Liverpool Central Physiotherapy and by Dr Maharaj. It was not open to the Arbitrator to dismiss the distinction as she did at [18]. This error was said to be “reflected at [133](a)”.
The Arbitrator, in finding injury, refers to the bilateral adductor longus as a “specific” (emphasis in Mr Perry’s submissions) part of the abdomen/groin. This “anatomical error” demonstrates the significance of the Arbitrator’s “impermissible elision of two body parts, as elision that has led her, again impermissibly, to reject [Dr Breit]”.
Discussion and findings
[g]iven the injection to the left groin there is almost certainly a component of adductor tendonitis despite the lack of pathology on MRI and the same may be present on the rightThe submission that the Arbitrator rejected Dr Breit’s evidence because of the absence of evidence of the occurrence of coughing, sneezing or straining was not accurate. The Arbitrator recorded (at [90]) that Dr Breit said, among other things, at page four under “Summary”, “” (emphasis included in original). (Later in his report, Dr Breit referred to the injection as “the provocation test”.)
She said that, despite making the above comments about the injection to the left groin, Dr Breit later said, “[d]iagnostic injections are a blunt instrument unless carried out in a proper blinded control manner”. The Arbitrator found this statement inconsistent with Dr Breit’s earlier statement that “there is almost certainly a component of adductor tendonitis despite the lack of pathology on MRI and the same may be present on the right”.
This inconsistency was also evident at page seven of Dr Breit’s report, where he said:
“Dr Halpin indicates that reduction of pain by an injection of local anaesthetic is the ‘gold standard’, the literature differs, there are a large number of false positives and [for] this type of test to be valid actually requires multiple injections with and without local anaesthetic.”
In answering the question of whether the proposed surgery “was reasonably necessary arising from the pleaded incident”, Dr Breit said, among other things, that there was no evidence of an adductor injury. He added that he had a number of concerns regarding the proposed surgery by Dr Halpin, stating:
“He [Dr Halpin] does not hold qualifications as a Surgeon, he is a Sports Medicine Physician and I would not consider it an acceptable standard of care in this country at this time and under WorkCover to allow a Physician to operate.”
I note, in passing, that in response to this criticism, Dr Berry said, in his May 2015 report:
“With regard to Dr Neil Halpin being non-accredited, it is true that he is a Sports Physician not a Surgeon, however, he is accredited at Holroyd Private Hospital to carry out injections into various joints and also to do adductor tenotomy. He has also been accredited in the past at Longeville [sic] Private Hospital and Hunter [sic] Hills Private to perform this operation. Dr Halpin is the doctor for the Newcastle Knights and has been so for many years. He was also the doctor for the Sydney Roosters for 16 years. I can confirm that Dr Halpin has done over 2,500 adductor tenotomies including some of Australia’s most famous footballers and other sportsmen. There have been no significant complications and the success rate is over 85%. Since my association with Dr Halpin which now goes back 20 years, I have assisted him to do the primary operations. We have carried out the re-operations on approximately 5% of patients with his assistance and I have treated the other groin problems including hernia formation.”
Noting Dr Breit was “very critical of Dr Halpin” ([94]), the Arbitrator said that Dr Breit described the provocation test as being “dubious” and “in the presence of a normal MRI is also not acceptable”. She contrasted these comments with his statement that “there is almost certainly a component of adductor tendonitis despite the lack of pathology on MRI”.
The Arbitrator concluded, at [96]:
“96.I find that the internal inconsistencies and Dr Breit’s disapproval of Dr Halpin operating seem to have coloured his opinion and has led me to conclude I should not place weight upon the same. Also Dr Breit when discussing causation does not turn his mind to whether the unloading of the washing machine could have been causative because he places emphasis on the fact that Mr Calka said his pain came on when he bent to pick up a towel. Finally[,] Dr Breit postulates that the symptoms would have occurred whether he was employed or not and could have simply occurred when coughing, sneezing or straining to go to the toilet. However[,] I find there is no evidence of any of these factors playing a part in the instigation of Mr Calka’s symptoms. The [appellant’s] counsel at T2- page 47 draws attention to Dr Halpin’s reference to ‘coughing’ as providing support for this statement by Dr Breit. However[,] I reject that submission because Dr Halpin said that Mr Calka’s pain was aggravated by coughing, not that his condition could have been caused by coughing.”
Thus, a fair reading of the Arbitrator’s reasons demonstrates that she rejected Dr Breit’s evidence for several reasons, namely:
(a) the obvious inconsistent statements by Dr Breit about the weight that could be attached to the injection or provocation test;
(b) his disapproval of Dr Halpin operating, which seemed to have “coloured his opinion”;
(c) when discussing causation, Dr Breit did not turn his mind to whether the unloading of the washing machine could have been causative because he placed emphasis on the fact that Mr Calka said his pain came on when he bent to pick up a towel, and, last,
(d) Dr Breit postulated that the symptoms would have occurred whether Mr Calka was employed or not because they could have occurred when coughing, sneezing or straining to go to the toilet.
These conclusions were open on the evidence and disclosed no relevant error. Dealing with the last of these points, which appears to be the only point challenged by Mr Perry, the Arbitrator said that there was no evidence of “these factors [coughing, sneezing or straining to go to the toilet] playing a part in the instigation of Mr Calka’s symptoms”. She rejected Mr Perry’s submission that support for Dr Breit’s statement could be found in Dr Halpin’s evidence. She was right to do so.
Dr Halpin’s evidence was that Mr Calka’s pain:
“follows an inflammatory pattern being aggravated by physical activity and in particular being worse some hours afterwards. It is also aggravated by coughing and sneezing as well as laughing, prolonged sitting and any activity involving passive abduction or resisted adduction.”
It is clear that Dr Halpin’s reference to “[i]t is also aggravated by coughing and sneezing” was a reference to the “pain”. He did not say, or imply, that an adductor longus tendon injury can be “caused” by coughing or sneezing. The difference between causing a condition and aggravating it is clear and one that is well understood in workers’ compensation jurisprudence.
Mr Perry’s submission, set out at [87] above, was not an accurate summary of Dr Breit’s evidence. Dr Breit said, dealing with the second part of the question of whether the proposed surgery was reasonably necessary “arising from the pleaded incident”, that:
“The second part of the question really relates to causation. Does someone simply bending down to pick up a dropped towel cause [sic] any of the claimed problems. In my opinion[,] it does not. It certainly does not lead to adductor tendinosis (not proven), there may have been a lower abdominal strain injury and there may have been some tendonotic changes which were not related to [Mr Calka’s] employment with the [appellant] and the symptoms would have occurred whether he was employed or not had he carried out the same sort of activity or they may have simply occurred when coughing, sneezing or straining to go to the toilet.”
The Arbitrator concluded that there was no evidence of coughing, sneezing or straining to go to the toilet “playing a part in the instigation of Mr Calka’s symptoms” (emphasis added). In context, the Arbitrator used the word “instigation” to mean “causation”. The Arbitrator’s conclusion was correct: there is no evidence that coughing, sneezing or straining to go to the toilet instigated or caused Mr Calka’s condition. Indeed, there is no evidence that it aggravated his condition.
Dr Breit seems to have based his opinion (on this point) on the possibility that Mr Calka “may” have had (presumably, pre-existing) tendonotic changes, which were unrelated to his employment. There is no evidence to support that assumption. Mr Calka was generally asymptomatic prior to 7 September 2012. (Though the Arbitrator referred (at [21]–[26]) to references to pre-existing abdomen symptoms, she did not consider them relevant and this finding has not been challenged). The accepted evidence was that the tendonotic changes had been caused by the lifting on 7 September 2012.
In any event, even if Dr Breit was suggesting that the pre-existing tendonotic changes were asymptomatic prior to 7 September 2012, if the condition was rendered symptomatic by the heavy lifting on that date, an issue that Dr Breit did not address, the injury would still be compensable. (I note that the question of Mr Calka having pre-existing, but asymptomatic, tendonotic changes prior to 7 September 2012, which were aggravated by heavy lifting on that day, was not argued at the arbitration, it not being supported by any evidence.)
Moreover, though there is evidence that Mr Calka’s symptoms fluctuated after 7 September 2012, there is no evidence that coughing, sneezing or straining to go to the toilet contributed to that fluctuation or caused a relevant change in his symptoms. In short, Dr Breit’s opinion was purely speculative: there “may” have been (pre-existing) tendonotic changes and symptoms “may” have occurred when coughing, sneezing or straining to go to the toilet. While Dr Halpin supported the general proposition that the condition “is also aggravated by coughing and sneezing as well as laughing, prolonged sitting and any activity involving passive abduction or resisted adduction”, he did not suggest that Mr Calka’s condition (or his symptoms) had been caused or aggravated by those activities.
The submission that the Arbitrator did not “consider these potential causes in the light” of s 9A(2)(d) is plainly wrong. The Arbitrator said, at [108]:
“108.Section 9A of the 1987 Act was put in issue in the section 74 notice. I find that a consideration of the factors set out in section 9A(2) such as the time and place of injury and the nature of the work and particular tasks performed have been discussed above and point to a finding that work was a substantial contributing factor. The duration of employment is not a factor. I have considered the pre-injury medical records and have found there is no support for the proposition that the state of Mr Calka’s health pre-injury or hereditary factors are relevant; nor was it argued by the [appellant]. The probability that the worker could have sustained such an injury anyway has been considered as the [appellant] submitted that the injury could have occurred even with coughing and the like. I have found that this was a miss-statement [sic] of Dr Halpin’s comment and I have rejected Dr Breit’s opinion in this regard. According[ly] I find that the employment was a substantial contributing factor to the injury.”
For the reasons discussed above, the Arbitrator was correct to find that s 9A was satisfied.
I do not accept Mr Perry’s submission that it was not open to the Arbitrator to dismiss the distinction between symptoms at the left adductor longus tendon insertion site and the lower abdominal pain. The Arbitrator dealt with this point at [18]–[19]. She said:
“18.I also reject the [appellant’s] attempt to draw a distinction between abdominal pain and groin pain. As will be seen one of the first diagnostic tests performed was an ultrasound of the ‘lower abdomen/groin area’. The fact that the radiologist described the test in these terms is indicative, in my view, that it is difficult to neatly distinguish between such areas as the [appellant] seeks to do.
19. Furthermore notwithstanding the [appellant’s] counsel’s submission that all the early treating medicine refers to abdominal strain and not groin strain or an adductor longus issue, as Mr Calka’s counsel pointed out in his submissions in reply the Liverpool Hospital notes refer to pain in the right iliac fossa, left iliac fossa and suprapubic region. (T2-page56.01).”
The Arbitrator returned to this issue at [86], where she noted that the appellant took issue with the fact that Dr Berry said that Mr Calka suffered a twisting injury to the “groins” as a result of heavy lifting at work whereas Dr Maharaj referred to the pain being abdomen pain. Relying on the reference to pain on both sides of the iliac fossas in the Liverpool Hospital notes, the Arbitrator correctly dismissed that point.
The Arbitrator’s description of the radiologist’s evidence was accurate and clearly supported her rejection of the appellant’s attempt to distinguish between abdominal pain and groin pain. So too was her reference to the evidence from Liverpool Hospital, which also supported her rejection of the appellant’s position.
The Arbitrator did not make an “anatomical error” in finding injury. Dr Berry was well aware that Mr Calka experienced “pain in the lower abdomen and groins” shortly after lifting the heavy washing. More importantly, consistent with the Arbitrator’s finding on injury, he added that he agreed, “that there may be more to this man’s ongoing problems than just an adductor enthesopathy”. Moreover, the appellant’s medical case conceded that Mr Calka suffered a lower abdomen strain, which it argued had resolved. Given Mr Calka’s continuing symptoms, it clearly had not.
What Mr Perry’s submission has overlooked is that the adductor longus tendon has its origins in the pubic body. This comes from a (basic) understanding of anatomy, but also from Dr Halpin’s report of 24 February 2013, where he recorded that, on examination, Mr Calka was “very tender at the pubic origins of the adductor longus tendons”. Thus, the presence of groin pain is perfectly consistent with an adductor tendon longus injury. It follows that the finding that Mr Calka “sustained injury to his abdomen/groin, specifically to his bilateral adductor longus” was open on the evidence.
Contrary to Mr Perry’s submission, there was no “impermissible elision of two body parts” by the Arbitrator. This was not a matter that led her to “impermissibly” reject Dr Breit’s evidence. She rejected Dr Breit’s evidence for the reasons explained at [99] above.
SECONDARY PSYCHOLOGICAL INJURY
Submissions
Mr Perry submitted that a psychological injury was not disputed in the s 74 notice because it was not originally part of the claim. It appeared in the Application to Resolve a Dispute (the Application) and was disputed in the Reply, but counsel for Mr Calka, Mr Morgan, made no submissions in support of the proposition that the Arbitrator should find a psychological injury. Mr Perry made no submissions on the point. Dr Maharaj’s letter of 22 February 2013, referred to by the Arbitrator at [114], provides no basis for finding that Mr Calka sustained a secondary psychological injury.
Mr Morgan submitted that it was open to the Arbitrator to address the secondary psychological injury condition, as pleaded in the Application, and that, given that the appellant contested that Mr Calka had suffered a secondary psychological injury, the Arbitrator’s determination was appropriate.
Discussion and findings
The Arbitrator dealt with the alleged secondary psychological injury at [112]–[114]:
“112.Mr Calka has alleged he suffers from a secondary psychological condition as a result of his work-related injury. There are several references to Dr Maharaj providing counselling[,] as he felt stressed. Mr Calka’s counsel submitted at T2-page 25.08 that Dr Assem stated that Mr Calka needed to be managed carefully with respect to his return to work and when this was not achieved his ‘condition physical and psychological is entrenched’. But there was no other submission about secondary psychological condition.
113.Mr Calka in his statement dated 27 January 2015 refers to him suffering constant stress and anxiety resulting in elevated blood pressure and depression and constant feelings of hopelessness. There is reference in Dr Maharaj’s notes of his blood pressure medication being increased from Coversyl 2.5mg to 5 mg and then on 6 March 2013 to 10 mg and the records of Dr Maharaj do have reference to him having elevated blood pressure readings post injury but also to him at times being non-compliant in taking his blood pressure medication.
114.Dr Maharaj on 22 February 2013 said to the insurer that Mr Calka had uncontrolled hypertension due to stress. She also at times refers to him suffering insomnia and low mood. I am satisfied when applying commonsense and the principles in Kooragang based on Dr Maharaj’s records that it is appropriate to make a finding that Mr Calka suffers from a secondary psychological condition due to his physical injury that he sustained on 7 September 2012. As stated in Kooragang an injury can set in train a series of events and I find the causal connection is established.”
The only expert evidence relied on by the Arbitrator in support of her finding that Mr Calka suffered a secondary psychological injury is from Dr Maharaj. Dr Maharaj’s evidence does not support such a finding. A psychological injury is an injury that is a psychological or psychiatric disorder (s 11A(3) of the 1987 Act). It is correct that Mr Calka gave evidence that he has been suffering from constant stress, anxiety, depression and feelings of hopelessness. However, there is no expert evidence that those symptoms amount to a psychological or psychiatric condition.
It is true that Dr Maharaj increased Mr Calka’s hypertension medication, and that she said, in her hand written report to the insurer dated 22 February 2013, that Mr Calka had “[u]ncontrolled hypertension due to stress”. She also, at times, referred to Mr Calka suffering from insomnia and low mood. However, that does not come close to a diagnosis of a psychological or psychiatric condition secondary to Mr Calka’s physical injuries. Mr Morgan has referred to no evidence that diagnosed Mr Calka as suffering from such a condition.
It may well be that, as the Arbitrator said, Mr Calka suffers from increased hypertension due to stress, that he suffers from insomnia and low mood. However, without evidence of a diagnosis of a psychological or psychiatric condition, and without submissions from Mr Morgan in support of such a finding, it was not open to the Arbitrator to find that Mr Calka suffers from such a condition and she erred in doing so.
This is not to say that Mr Calka’s increased hypertension has not resulted from stress due to his injuries. Dr Maharaj’s evidence was to the effect that it did. However, that does not support a finding of a secondary psychological or psychiatric injury.
This finding has not had any effect on the other orders made. That is because, in assessing Mr Calka’s entitlement to weekly compensation, the Arbitrator had regard to WorkCover certificates from Dr Maharaj. Those certificates referred to Mr Calka’s physical injuries and the hypertension, but made no mention of any psychological or psychiatric condition. The finding that must be made on appeal, that Mr Calka has suffered no secondary psychological injury, merely means he will not be entitled to recover the cost of treatment for such a condition. As there is no evidence that he has had treatment of any secondary psychological injury, it is of no consequence.
CONCLUSION
Save for the finding that Mr Calka suffers from a secondary psychological injury, the Arbitrator’s findings on injury and causation were open on the evidence and involved no error.
DECISION
Paragraph (c) of the orders made in the Certificate of Determination of 6 October 2015 is revoked and the following order is made:
“(c) Award for the respondent in respect of the allegation that the applicant suffered a secondary psychological injury as a result of his physical injuries.”
All other orders in the Certificate of Determination of 6 October 2015 are confirmed.
Bill Roche
Acting President
20 January 2016
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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