Harrison and Siepen v Craig
[2014] NSWWCCPD 48
•29 July 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48 | ||
| APPELLANT: | Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen | ||
| RESPONDENT: | Toyah Craig | ||
| INSURER: | Employers Mutual NSW Limited | ||
| FILE NUMBER: | A1-2957/13 | ||
| ARBITRATOR: | Mr G Egan | ||
| DATE OF ARBITRATOR’S DECISION: | 1 April 2014 | ||
| DATE OF APPEAL DECISION: | 29 July 2014 | ||
| SUBJECT MATTER OF DECISION: | Drawing of inferences on injury in the absence of expert medical evidence; judicial obligation to make findings of fact on proved evidence; circumstances in which the Commission’s members may rely on general knowledge acquired in their capacity as members of a specialist tribunal, interlocutory decisions | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |
| Respondent: | LHD Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is granted. 2. The Arbitrator’s orders made in the Certificate of Determination dated 1 April 2014 are revoked and the following orders are made in their place: “1. The name of the respondents is amended to ‘Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen’. 2. An award for the respondents. 3. No order as to costs of the arbitration.” 3. Each party to pay her or its own costs of the appeal. | ||
| 3. | |||
INTRODUCTION
This appeal concerns the circumstances in which an Arbitrator may, in the absence of expert medical evidence, draw an inference from the available evidence to support a finding of injury.
BACKGROUND
The respondent worker, Toyah Craig, was employed by Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen (the appellants) as an office assistant.
On 8 June 2004, whilst descending a staircase at her employer’s premises, Ms Craig slipped and fell, landing on her tailbone and left leg. She also injured her right arm. Mr Craig was unfit for work for two days.
In the early part of 2006, Ms Craig trained to become an assistant in nursing (AIN). On 20 November 2006, she obtained employment as an AIN at the Storm Retirement Village in Taree. After working only three shifts she developed severe pain in her lower back and shooting pain in her left leg and as a result ceased work, never returning again to that type of employment.
On 20 October 2009, through her solicitors, LHD Lawyers, Ms Craig made a claim for lump sum compensation in the sum of $6,250 pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) representing five per cent whole person impairment with respect to the lumbosacral spine. She relied on reports of Dr Alan Hopcroft, general surgeon, dated 10 March 2008, 26 May 2008, 15 September 2008 and 10 June 2009 and a report of Dr Hyde Page, orthopaedic surgeon, dated 26 November 2008.
By letter dated 3 August 2007 (which date appears to be an error), the appellants’ insurer, Employers Mutual NSW Ltd (Employers Mutual), issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Employer’s Mutual denied liability in respect of Ms Craig’s claim for injury to the lumbar spine and/or the left leg. Employers Mutual alleged that at the time of the injury on 8 June 2004, Ms Craig reported injuries to her sacral/coccygeal area and the right forearm. It was alleged that it was not until November 2006 that Ms Craig complained of pain in her lower back. Further, it was alleged that any injury to the lower back was the result of the work in 2006 as an AIN.
On 8 February 2013, Ms Craig lodged an Application to Resolve a Dispute in the Commission. She claimed lump sum compensation in accordance with her solicitor’s earlier demand in respect of the injury on 8 June 2004. She described the nature of her injury as “lumbar spine”.
On 25 February 2013, the appellants filed a Reply to the Application to Resolve a Dispute. It confirmed the dispute in accordance with Employers Mutual’s s 74 notice.
On 20 March 2014, the matter was listed for a conciliation and arbitration hearing before Arbitrator Egan. No oral evidence was called.
On 1 April 2014, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. The Arbitrator found that Ms Craig suffered an injury to her lumbar spine on 8 June 2004 arising out of or in the course of her employment with the appellants, or, to which the employment was a substantial contributing factor. He ordered that the matter be referred to the Registrar for referral to an Approved Medical Specialist (AMS) in respect of an assessment of Ms Craig’s whole person impairment relating to the injury to the lumbar spine.
The appellants appeal the Arbitrator’s decision.
PRELIMINARY MATTERS
There is no dispute that the threshold requirements as to quantum and time found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
The pleadings as originally filed identified the appellants simply as “Harrison and Siepen” which is clearly not a legal entity. At my request the appellants were directed to file an Amended Reply to correctly identify the respondents. An Amended Reply was lodged with the Commission on 25 July 2014 identifying the respondents as “Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen”. I grant leave for the Amended Reply to be filed.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions 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.
INTERLOCUTORY DECISION
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Ms Craig submits that the Arbitrator’s decision is interlocutory as it does not “finally determine the rights of the parties”: R&E & PD Richards Pty Ltd v Eggins [2010] NSWWCCPD 2. She submits that the dispute should be remitted to the Registrar for referral to an AMS.
The Arbitrator’s referral of the matter to the Registrar for referral to an AMS does not finally dispose of the rights of the parties and is interlocutory: Licul v Corney [1976] HCA 6; 180 CLR 213 at 224–225; 8 ALR 437.
If leave to appeal is permitted, the order sought by the appellants is that the Arbitrator’s order be revoked and an award be entered in favour of the appellants in respect of the alleged injury to the lumbar spine.
If the appeal is successful, that will finally determine the issue between the parties and it will obviate the necessity of an assessment by an AMS and the unnecessary utilisation of the Commission’s resources.
For these reasons it is desirable for the proper and effective determination of the dispute that leave to appeal be granted, and I so order.
ISSUE ON APPEAL
The issue on appeal is whether the Arbitrator erred in law in finding that Ms Craig injured her lumbar spine when there is no sound evidentiary basis for the finding and/or it is against the weight of the evidence. It is alleged that the symptoms experienced by Ms Craig are referrable either to a subsequent event or the underlying degenerative processes.
THE EVIDENCE
Toyah Craig
Ms Craig provided a signed statement of evidence dated 8 December 2009.
Ms Craig said at [5]–[14]:
“[5] On 8 June 2004 I arrived at work. I went to collect the mail from the post box. As I was walking down the stairs in our office building, I slipped and landed on my tailbone and leg. I suffered a bruise on my right arm. I got up and proceeded to collect the mail.
[6] After I went back to work I went to sit down on a chair but I found that I could not sit down. I reported this to my boss. It was recommended that I go home.
[7] I went home and applied heat packs around my tailbone. My symptoms in my arm and my tail bone had not eased and so I went to see Dr Louis Vincent [general practitioner] that day.
[8] Dr Vincent referred me for an x ray of my arm and tailbone. He told me that I should have a couple of days off work, which I did.
[9] I went back to work and put up with the discomfort I was feeling. The problems in my arm went away but I still noticed some discomfort in my tail bone.
[10] In the middle of 2007 [sic 2006] I noticed a significant increase in the pain I was feeling. The pain was in my lower back, my tailbone, my left buttock and down my left leg. I consulted Annette Hawkins in Taree. She is a chiropractor. I had 3 sessions with her which I found to be of some help.
[11] I continued to experience discomfort in my back and down my right leg.…
[14] Aside from consultations with my GP and the chiropractor, I have not had any medical treatment for my back injury.…”
FURTHER EVIDENCE
Dr Vincent’s notes dated 8 June 2004 record the following history: “Patient fell down the stairs at about 09.00 hours while at work. There was no LOC, complaining of pain in the sacral area, has a lump to right arm”. Dr Vincent noted that upon examination, Ms Craig was tender over the coccygeum and there was swelling over the right wrist area. He requested an x-ray of the sacral/coccygeal region and the right forearm. Dr Vincent then issued a WorkCover Medical Certificate stating “Diagnosis: contusion to the sacral/coccygeal area + right forearm” (emphasis included in original). He certified Ms Craig unfit for work for the following day, 9 June 2004.
On 9 June 2004, Dr Esdale reported on the findings of x-rays of the right forearm, sacrum and coccyx. He found no abnormality with respect to the right forearm. With respect to the x-ray of the sacrum and coccyx, his findings were:
“There is a transitional lumbar sacral vertebral body and the transverse processes of this vertebral body from pseudoarthrosis with underlying sacrum. There appears to be early degenerative change within the pseudoarthrosis on the left. No acute bony abnormality detected in the sacrum or coccyx.”
Also on 9 June 2004 after noting the x-ray findings, Dr Vincent issued a WorkCover medical certificate certifying Ms Craig fit to return to work from 10 June 2004. He confirmed the diagnosis as per his certificate of 8 June 2004.
Ms Craig saw Dr Vincent for unrelated conditions on 14 July 2004 and 24 January 2005, but made no mention of any problems with her back.
On 24 March 2005, Ms Craig saw Dr Dunn, general practitioner, who practices in the same medical practice as Dr Vincent. Dr Dunn’s notes for that date record:
“FELL DOWN STAIRS AT WORK 22/3/05
BRUISED THIGH AND LEGS
GRAZED L WRIST
10 CM BRUSE [sic] ANT LEFT THIGH
SMALL BRUSES [sic] BELOW L&R KNEE
TENDER LOWER ANTERIOR RIBS NO BRUISING
BACK EXAM OK SLR 90 L&R
LASOLIN CREAM”
Dr Dunn provided a prescription for the Lasolin ointment and issued a WorkCover Medical Certificate. The WorkCover Medical Certificate recorded the diagnosis as “multiple bruising”.
Ms Craig was reviewed on 7 April 2005 by Dr Rick Alterator, general practitioner. He certified Ms Craig fit to return to work.
On 30 November 2006, Ms Craig was seen by Dr Flores, general practitioner, in Taree. Dr Flores’ notes state:
“shooting pain at the back of the left leg
duration: few days - weeks on and off
not radiating to the foot
no numbness or weakness on legs
history of lumbar disc space narrowing
– pevious [sic] xrays, as per patient
exam
looks well,
not toxic looking
afebrile
pink palpable conjunctiva, no signs of anemia
no spinal tenderness
hip flexion 90 degrees
backward flexion 40degrees
power- normal
sensation-intact
Impression
sciatica
plan
nature of condition explained using illustration and video”
On or about 19 March 2008, Ms Craig submitted a “Worker’s Injury Claim Form” to the appellants, in respect of the injury on 8 June 2004. She described the injury as “contusion to the sacral/coccygeal area & right forearm. Affected area – tailbone, prop leg (left)”. The claim form is unsigned and undated, but there is a date stamp from Employers Mutual dated 19 March 2008.
On 10 March 2008, Ms Craig was assessed by Dr Hopcroft, orthopaedic surgeon. He prepared a report to her solicitors dated the same day. The history recorded by Dr Hopcroft is in the following terms:
“On 8 June 2004 she was walking down stairs at the Accountants [sic] workplace and fell heavily, landing on her buttocks, striking her right arm as she fell. She felt immediate pain in her right forearm and in her lower back and buttocks and got to her feet and returned to her work situation. However she was unable to sit because of the pain and it was recommended that she simply go home and have the problem investigated by her doctors.”
Dr Hopcroft noted the findings of the x-ray performed on 9 June 2004, and he stated that:
“With those findings she was advised that there was nothing more that should be done for the problem, she was given a medical certificate to be off work for two days and return to work after that.
She said she [sic] no further problems with her right forearm.
However, she has noticed continuing problems, which recurred significantly about eight months ago, in her lower back, left buttock and left leg with pain also occurring over her coccyx. That coccygeal pain is aggravated by any constipation problems that she has.
She has never previously had any injury to her back or buttocks.
In mid-2006 she began a nursing training programme, but when she commenced work in November 2006 she worked for only two shifts at the Storm Retirement Village when she started to notice back pain problems developing.
She consulted with Ms Annette Hawkins in Taree and had three chiropractic treatments to her back. She was unable to continue her nursing career and is currently employed at the Christian School in Taree, working 12 hours per month in administrative clerical duties.”
After reporting Ms Craig’s current status, details of his clinical examination and review of the x-rays performed on 9 June 2004, Dr Hopcroft provided the following diagnosis and opinion:
“This patient is suffering from coccydynia, almost certainly as a result of a significant flexion injury suffered to the sacro-coccygeal joint in the fall suffered at work on 8 June 2004.
I believe however she may also be suffering from an L5/S1 intervertebral disc protrusion for although she has a congenital pseudoarthrosis between the left transverse process of L5 and the sacrum, it is more likely that the sciatica of which she complains which is a non-identifiable radiculopathy is arising from some nerve root irritation, possibly from disc protrusion. In that regard the patient requires MRI scanning of her lumbosacral spine and I have organised for that to be done as from today.
Regarding future treatment options, the patient is likely to require a hydrocortisone injection into her sacro-coccygeal junction to bring her coccydynial pain under control, but it may well be that she ultimately is led to requiring coccygectomy to resolve that problem on a long term basis.
Future treatment options required for her back pain and left sided sciatica will be entirely dependent upon the outcome of the MRI scan which will come to hand in the near future.”
Dr Hopcroft prepared a further report dated 26 May 2008. He noted that, on 25 March 2008, Ms Craig had undergone an MRI of the lumbar spine which had been reported on by Dr Kim Nolan. He reproduced the MRI findings as follows:
“Report: the distal cord is normal. The conus is at T12. No disc abnormality is present at L1/2, L2/3 or L3/4. There is no compression to the dural sac or nerve roots.
L4/5: there is a central disc protrusion which minimally indents the dural sac. There is no neural compression. There is a linear of high signal at the central annulus which is consistent with an annular tear.
L4/S1: There is no disc protrusion. The disc defines normally. There is no compression to the dural sac or nerve roots.
Conclusion: Broad central disc protrusion at L4/5 associated with an annular tear.”
On 15 June 2008, Dr Larkin, a general practitioner practising in Taree, prepared a report to Ms Craig’s solicitors. He stated that he had seen Ms Craig for the first time two days earlier. She had presented for an entirely unrelated matter, but at the end of the consultation she mentioned she still had low back and leg symptoms in relation to a fall in 2006. Dr Larkin referred to Ms Craig’s past medical history as “Sciatica – L4/5 disc prolapse assessed by Dr Hopcroft, 5/08 – MRI – ‘broad central disc protrusion at L4-5with annular tear’”.
In answer to specific questions Dr Larkin stated:
“Whether present injury is an aggravation of a pre-existing condition or injury: no
Likelihood of patient having suffered pain or discomfort due to sustained injuries: confirmed....”On 15 September 2008, Dr Hopcroft prepared a further report. He stated that he had reviewed Ms Craig’s history, the radiological findings and clinical examination details and found that her employment had been a substantial contributing factor to her injury. He expressed a guarded prognosis.
On 26 November 2008, Ms Craig was examined by Dr Hyde Page. Dr Hyde Page prepared a report of the same date addressed to Employers Mutual. Dr Hyde Page obtained the following history:
“Ms Craig states that on the morning of the 8th June 2004 in the course of her work at Harrison & Siepen in Port Macquarie, she was walking down concrete stairs when she slipped and fell heavily backwards, landing on her buttocks. She immediately experienced pain around her buttocks and coccyx. She returned to her seat and could not sit down due to the severity of pain.
She had to leave work and was actually driven home. She also suffered a minor injury to her right arm:
EARLY TREATMENT
By that evening she had a lot of pain in her buttocks and coccyx and had trouble sitting. She actually did not have any significant pain in her lumbar spine. She therefore attended a medical clinic and saw a Dr Vincent, who organised for her to have x-rays or her right forearm, sacrum and coccyx. The lumbar spine was not x-rayed.
She was told there was no fracture or significant injury and that she simply needed to rest. She had a couple of days of [sic] work and then returned to her normal clerical duties.
SUBSEQUENT PROGRESS
In fact, her symptoms settled down very well except for some niggling pain around her coccyx. I need to stress that at no time did she have any low back pain or stiffness or shooting pain down her left leg. She was able to continue with her normal work duties doing clerical work and stayed with the same company until the end of 2005 when she voluntarily left as she wanted to pursue a different career path.”
From the details of Ms Craig’s past health, social and personal history, her work history and the examination and radiological findings, Dr Hyde Page found as follows:
“DIAGNOSIS, OPINION & PROGNOSIS
Based on my assessment of Ms Craig today she appears to have suffered 2 injuries. With her fall on 8 June 2004 onto her buttocks she has developed a painful coccyx or coccydynia which continues to be an intermittent problem for her. It needs to be noted that she did not injure her back or lumbar spine on this occasion and had no lumbar spinal complaint until November 2006.
In November 2006, when she started work as an AIN at the Storm Retirement Village, during the 3rd shift, she developed acute low back pain and stiffness with shooting pain down her left leg and this has become a recurrent problem for her ever since. It appears that she aggravated an underlying congenital abnormality where she has a pseudoarthrosis between the transverse process of the L5 vertebra and the sacrum and where there is evidence of degenerative changes. This would explain how this condition developed without any specific injury. (emphasis added)
In answer to your specific questions:-
Provide your specific comments on the current cause of her condition and if employment continues to be a substantial contributing factor.
Ms Craig’s employment on 8 June 2004 when she fell and developed her painful coccyx or coccydynia is the cause of the ongoing coccyx pain that this lady suffers. However this injury is not the cause of her persistent left low back pain shooting down her left leg that only came on in November 2006, well over 2 years later when she was working as an AIN. This pain is as a consequence of aggravation of her underlying congenital abnormality of the L5 transverse process where she has a pseudoarthrosis with degenerative changes on the left side. (emphasis added)
Advise whether the claimant has suffered an aggravation of a pre-existent condition and has this aggravation ceased.
With her coccyx pain or coccydynia she has not aggravated a pre-existent condition. Therefore the injury suffered on 8 June 2004 to her coccyx is purely attributable to the work injury.
As I have indicated above, she did aggravate an underlying congenital abnormality with her injury as an AIN in November 2006 and the aggravation to this underlying problem continues.”
On 10 June 2009, Dr Hopcroft prepared a final report. He stated that:
“I have reviewed my notes, reports and radiological studies for this patient and believe that this patient’s primary injury to her lumbarsacral spine occurred in the fall on to her buttocks in August 2004 and that the pain that developed when she commenced as an Assistant in Nursing in 2006, was merely a manifestation of that previous pathology which went on to become continuously symptomatic.
I believe therefore that her whole person impairment is contributable to the incident which occurred while she was employed by Harrison and Siepen in Port Macquarie in August 2004.
I believe a careful analysis of the patient’s history, clinical symptoms and radiological findings would support that contention and opinion.
I believe that her work has [sic] an Assistant in Nursing did not further contribute to her whole person impairment in any significant way.”
On 11 August 2009, Ms Craig submitted a “Worker’s Injury Claim Form” to Storm Retirement Village. She described the injury as:
“Pain in the sacral/coccgaael [sic] area. Affected area – tailbone top leg (left)”
As to how the injury happened she said:
“Pain started after excessive lifting and movement at work (general work load)”
In answer to a question as to when she first noticed the injury/condition she said:
“20/11/06 approx”
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator identified the issue before him requiring his determination as whether or not Ms Craig suffered an injury to her “lumbar spine” in the fall in 2004 as pleaded.
After reviewing the evidence and the relevant authorities in considerable detail, the Arbitrator concluded that he did not accept that Ms Craig’s disc protrusion and annular tear was causally related to the fall in 2004.
The Arbitrator noted that Ms Craig primarily relied upon the opinion of Dr Hopcroft, whose conclusion was based upon the findings of a disc protrusion and annular tear at L4/5 discovered by an MRI in 2008. The Arbitrator found that there was no adequate explanation for a complete lack of symptoms that would normally be regarded as indicative of disc derangement, such as persisting, significant back, buttock or leg pain from the time of the injury in 2004 and up until 2006, when Ms Craig first began to complain of back pain.
The Arbitrator indicated that he raised this concern on numerous occasions with counsel for Ms Craig which failed to yield an adequate explanation. He found that, contrary to Mr Young’s submission (Ms Craig’s counsel), there was no specific complaint by Ms Craig of any left-sided pain at the time of her attendance on Dr Vincent on the day of the accident, or on any occasion thereafter, until presentation to Dr Flores on 30 November 2006. Indeed there was no complaint by Ms Craig of any back symptoms between 2004 and 2006, other than “discomfort in my tailbone”.
Mr Young submitted that the probable or preferred view is that Ms Craig suffered an aggravation of the L5/S1 degenerative changes in the fall in 2004. He submitted that the complaint of injury to the sacrum could support a finding of injury to the lumbar sacral spine.
The Arbitrator found that if he accepted that Ms Craig suffered an injury by way of aggravation of degenerative change between the L5 transverse process and the sacrum, that he could accept that she had suffered injury to her lumbar spine.
The Arbitrator noted that neither Dr Hopcroft nor Dr Hyde Page specifically addressed the question of whether Ms Craig suffered aggravation of the degenerative changes at the pseudoarthrosis as a result of the 2004 injury.
The Arbitrator then stated at [65] of the Statement of Reasons (reasons):
“Despite the lack of specific medical evidence on whether or not the applicant suffered and [sic] aggravation of her early degeneration in 2004, the [C]ommission may rely upon a time [sic] medical expertise and can draw medical inferences even without specific supporting opinion: Belmont Night Patrol Pty Ltd v Woolworths Ltd [2004] NSWCA 235 [(Belmont)]. Even so, I keep in mind that there must be some evidence to support the inference: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 [(Hevi Lift)].”
The Arbitrator found (at [66]) that Ms Craig suffered a significant incident in her fall in 2004. The fall onto her buttocks would have involved her full weight, with considerable forces applied from the point of contact upwards throughout her body. The effect was sufficient to cause her to seek medical treatment from Dr Vincent on the day of the accident where she complained, among other things, of “pain in the sacrum”. Additionally, Dr Hopcroft and Dr Hyde Page also noted Ms Craig’s complaints of pain in the buttocks, in addition to the coccyx symptoms.
The Arbitrator stated at [66]:
“These symptoms are consistent with an aggravation of the earlier degenerative change in one so young. Further, while Dr Hyde Page did not take a history of any ‘back pain’ at the time of injury, Dr Hopcroft did. This, in combination with Dr Vincent’s contemporaneous note of pain in the sacrum, convince me that the applicant suffered pain in her ‘lumbar spine’ at the time of injury. The presence of the degenerative changes in a 17 year old, together with these complaints and observations are sufficiently persuasive to convince me that the applicant relevantly suffered an injury to her ‘lumbar spine’ as claimed.”
The Arbitrator drew comfort from the conclusions of Dr Hyde Page. He inferred that if Dr Hyde Page accepts that a natural progression of the degenerative condition between 2004 and 2006 could be sufficient to “bring on” symptoms, then logically considerable forces applied in Ms Craig’s fall in 2004 would be sufficient to aggravate the degenerative condition and he so found.
The Arbitrator concluded at [68]:
“I therefore find that as at 8 June 2004, the applicant was suffering from a disease of gradual process, being arthritic degenerative change between the L5 transverse process and the sacrum. I am satisfied on the balance of probabilities that the applicant did aggravate that condition as a result of the trauma of the fall, and that she therefore experienced an acute aggravation of the disease. That being so, she has suffered an injury for the purpose of s 4 of the 1987 Act, either under paragraph (a) or (b)(i) of the definition, the categories being not mutually exclusive: Zickar v MHGM Plastics Industry Ltd (1996)187 CLR 310.”
The Arbitrator was satisfied that as the injury was sustained whilst Ms Craig was descending the stairs, for the purposes of her employment duties, that the provisions of s 9A were satisfied.
SUBMISSIONS
The appellants’ submissions
The appellants submitted that the only medical evidence supporting Ms Craig’s case of injury to the lumbar spine was that of Dr Hopcroft who first saw her on 10 March 2008 and only then for a medicolegal examination. Dr Hopcroft diagnosed symptoms referrable to the L4/5 disc pathology, consequent upon the 2004 injury.
Dr Hopcroft’s opinion lacks any sound, reasoned and/or medically based explanation for the conclusion reached and falls short of the necessary standard of proof.
Dr Hopcroft’s opinion stands alone and is not sufficient to discharge the onus if there is no supporting evidence from either Ms Craig or any treating medical practitioner (Department of Education and Training v Ireland [2008] NSWWCCPD 134).
The Arbitrator did not accept that Ms Craig’s disc pathology at L4/5 was related to the fall in 2004.
The Arbitrator then proceeded to consider the developmental abnormality referred to in the 2004 radiology, namely the degenerative pseudoarthrosis of the transverse process. Without the assistance of any medical evidence on that point, the Arbitrator concluded that it was likely that that pathology was aggravated in 2004.
The Arbitrator’s finding was not open on the evidence available and was contrary to the evidence and amounts to an error of law. It was not supported by any of the experts and in fact was contrary to the opinions expressed by the medical experts qualified to give evidence on behalf of both parties to these proceedings.
Ms Craig’s submissions
Ms Craig submits that it is incorrect for the appellants to submit that there were no symptoms in 2004 associated with the pathology identified by the radiologist and medical practitioners.
The Arbitrator considered the early degenerative change of L5/S1, demonstrated on the 2004 x ray and compared it with Ms Craig’s lay description of “tailbone” discomfort and Dr Vincent’s contemporaneous record of pain in the sacrum.
The appellants’ submissions on the left sciatic symptoms in 2006 are misconceived. The development of the symptoms in 2006 are not fundamental in determining the central issue of whether Ms Craig sustained an injury to the lumbar spine in 2004.
The 2006 symptoms were probably caused by pathology at L4/5 which was not shown in the 2004 x-ray. It is only detected following an MRI taken on 25 March 2008. For that reason, the Arbitrator was not satisfied that Ms Craig sustained injury at L4/5 in 2004.
The Arbitrator carefully considered the whole of the lay and medical evidence before him before finding that Ms Craig aggravated a degenerative change between L5 transverse process and the sacrum in 2004.
The Arbitrator did not err by making such a finding without specific medical evidence. The Commission is a specialised tribunal and may draw inferences based on evidence: Belmont.
DISCUSSION AND FINDINGS
The Arbitrator’s conclusion that Ms Craig’s disc pathology at L4/5 was unrelated to the fall in 2004 was, for the reasons expressed by the Arbitrator, correct and has not been challenged on appeal.
Following that finding, the Arbitrator then considered whether the developmental abnormality referred to in the 2004 radiology which, for convenience, I shall refer to as the “pseudoarthrosis”, was aggravated by the injury in 2004. As the appellants’ submit, without the assistance of any expert medical evidence on that point, the Arbitrator concluded, by way of inference, that the pseudoarthrosis was aggravated by the injury in 2004.
I accept the appellants’ submission that that finding was not open to the Arbitrator on the available evidence, was contrary to the evidence and constituted an error.
As the Arbitrator correctly observed (at [64] of the reasons) neither Dr Hopcroft nor Dr Hyde Page specifically addressed the question of whether Ms Craig suffered from an aggravation of the congenital pseudoarthrosis as a result of the 2004 injury.
The basis upon which the Arbitrator concluded that he was able to draw the inference is stated at [65] of the reasons. It is difficult to follow precisely what the Arbitrator was articulating in that passage, because the passage clearly contains a typographical error or errors. However, the Arbitrator appears to be stating that, notwithstanding an absence of specific medical evidence on the question of aggravation, the Commission may rely upon on its own medial expertise to draw medical inferences (Belmont). He noted however that there must be some evidence to support the inference (Hevi Lift).
The Arbitrator identified the basis for the inference as follows:
(a) Ms Craig suffered a significant fall on her buttocks involving her full weight with consequent forces being applied from the point of contact (tailbone) upward throughout her body;
(b) the effect was sufficient for her to attend Dr Vincent and complain of pain in the sacrum;
(c) x-rays revealed evidence of the congenital pseudoarthrosis, and
(d) the histories provided by Dr Hopcroft and Dr Hyde Page included a complaint of pain in the buttocks, in addition to the coccyx symptoms.
Based on these facts, the Arbitrator concluded that the symptoms were consistent with an aggravation of the early “degenerative change” to a person so young. Ms Craig was 18 years of age in June 2004.
It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge (Strinic v Singh [2009] NSWCA 15 at [60] per Beazley JA (Ipp JA and Basten JA agreeing); 74 NSWLR 419. Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters “that experience does not replace the requirement to base findings on the evidence”. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her honour added “underlying that error is a fundamental breach of procedural fairness”. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.
Ms Craig did not complain of back pain or symptoms related to an injury to the back after the injury on 8 June 2004. She complained of pain in her arm, which resolved, and discomfort in the “tailbone”.
On close questioning by Dr Hyde Page, Ms Craig denied having suffered any symptoms of back pain between 2004 and 2006 when she commenced work as an AIN. As the Arbitrator noted, it is apparent from other contemporaneous evidence that Ms Craig’s reference in her statement to the onset of back pain in 2007 is a mistaken recollection and is clearly a reference to 2006, when she sought treatment from Dr Flores (see [32] above) and Ms Hawkins, a chiropractor, (see [24] above). Ms Craig gave no evidence concerning the precursor to treatment at that time.
The history recorded by Dr Hopcroft of a complaint of back pain after the injury in 2004, stands alone. It was a history taken by Dr Hopcroft almost four years after the event. Ms Craig’s own evidence, as confirmed several times by Dr Hyde Page, and the contemporaneous notes of Dr Vincent, is to be preferred on the question of the absence of back symptoms between 2004 and 2006.
The Arbitrator drew comfort for his conclusion from what he described as an inference drawn by Dr Hyde Page, namely, that Dr Hyde Page accepted that there was a natural progression of the degenerative condition between 2004 and 2006, which could have been sufficient to “bring on” symptoms. This, the Arbitrator concluded, logically led to a conclusion of an aggravation of the congenital condition by reason of the forces applied in Ms Craig’s fall in 2004.
The Arbitrator’s conclusion in the preceding paragraph was not available on the evidence. Dr Hyde Page did not accept that there had been a natural progression of the congenital condition between 2004 and 2006. His evidence is very clear. In his opinion, Ms Craig suffered from two conditions. The first being coccydynia, related to the 2004 fall. The second was an aggravation of the underlying congenital abnormality which he attributed to the work as an assistant in nursing in November 2006. His conclusion in respect of the second injury was supported by the fact that Ms Craig developed acute low back pain and some stiffness, with shooting pain down her left leg, which first appeared in 2006 and has been a recurrent problem.
It may be open to an Arbitrator to make a finding of causation and/or injury by inference supported by appropriate lay and/or expert evidence. However, it is not open to an Arbitrator to make a finding that is inconsistent with the lay evidence and is unsupported by expert medical opinion.
Ms Craig’s submissions depend upon an acceptance of the proposition that an Arbitrator may make a finding of injury without specific medical evidence based on the Commission’s knowledge as a specialist tribunal and may draw inferences based on evidence, relying on the authority in Belmont. However, for the following reasons the respondent is unable to draw any assistance from that authority.
In Belmont, Hodgson JA (Tobias and McColl JJA agreeing) held at [30]:
“I would not accept Mr. McManamey's submission that the evidence in the case could not possibly support an inference of causation. On the basis of Kennedy, in my opinion such an inference could be drawn. However, this case is unlike Kennedy in that there were frank incidents occurring to the worker during the relevant employment in that case, and the medical evidence was silent on causation. In the present case, there were no frank incidents, and the medical evidence is against causation. In the present case, in my opinion it was necessary to refer to the explicit evidence as to causation, if that evidence was to be rejected; and the failure to do so does amount to such a deficiency of reasons as to constitute an error of law.”
Justice Hodgson’s reference to Kennedy is a reference to MMI Workers Compensation (NSW) v Kennedy [1993] NSWCC26; 9 NSWCCR 482 (Kennedy). In Kennedy the worker had suffered numerous injuries to his back which resulted in a spinal fusion in 1979. Mr Kennedy gave evidence, which was accepted as being truthful, that as a result of an incident in 1987 he suffered an increase in pain resulting in his total incapacity. In addition, the worker’s treating doctor, Dr Marnie, accepted that a fracture in the graft may have occurred as a result of any one of a number of further incidents after the fusion operation including the 1987 injury. Although the trial judge did not identify the injury in terms of any physiological change in the worker’s condition, Mahoney JA, held that he was entitled to draw an inference, based on the worker’s accepted evidence and the available medical evidence, that a separate injury had been sustained in 1987.
The facts in Kennedy are unlike the facts in the present case for a number of reasons. First, not only is there no evidence that the worker suffered pain in her lumbar spine as a result of the incident in 2004, her evidence is to the contrary. She complained only of some discomfort in her tailbone to Dr Vincent. Secondly, on close questioning by Dr Hyde Page, Ms Craig denied having suffered any pain in her lower back between 2004 and 2006. Thirdly the history obtained by Dr Larkin suggested that Ms Craig attributed the pain in her low back and leg to a fall in 2006.
For the above reasons, the circumstances in which the inference was available to be drawn in Kennedy, do not provide a basis for the inference drawn by the Arbitrator in the circumstances of this case.
CONCLUSION
The Arbitrator’s inferential finding of aggravation of a congenital condition, in the absence of expert medical evidence, involved an error of law.
ORDERS
Leave to appeal is granted.
The Arbitrator’s orders made in the Certificate of Determination dated 1 April 2014 are revoked and the following orders are made in their place:
“1. The name of the respondents is amended to ‘Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen’.
2. An award for the respondents.
3. No order as to costs of the arbitration.”
COSTS
Each party to pay her or its own costs of the appeal.
Judge Keating
President
29 July 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
7
6
0