Holroyd Bus Lines Pty Limited v Stanojevic - [2007] NSWWCCPD 169

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Holroyd Bus Lines Pty Limited v Stanojevic [2007] NSWWCCPD 169
APPELLANT:  Holroyd Bus Lines Pty Limited
RESPONDENT:  Milivoje Stanojevic
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC11069-06
DATE OF ARBITRATOR’S DECISION:          1 December 2006
DATE OF APPEAL DECISION:  1 August 2007
SUBJECT MATTER OF DECISION:                Errors in fact finding – failure to consider relevant evidence; medical evidence – bare ipse dixit; findings on credit; section 40 discretion.
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Ellison Tillyard Callanan
Respondent: White Barnes

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 1 December 2006 is revoked, and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 22 December 2006 Holroyd Bus Lines Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 December 2006.

The Respondent to the Appeal is Milivoje Stanojevic (‘the Respondent Worker’).

The Respondent Worker was born on 8 November 1948, and claimed a dependant wife. He was employed by the Appellant Employer as a bus driver from 12 November 1993. The proceedings related to injuries allegedly suffered in a motor vehicle accident on 5 February 2004, when the bus the Respondent Worker was driving collided with a police car. The injuries alleged in the Application to Resolve a Dispute, registered 21 July 2006, (‘ARD’) were “neck, back, depression, hernia, aggravation of obesity, sleeplessness”.

After the accident the Respondent Worker was admitted to the Liverpool Hospital from 5 February 2004 to 20 February 2004. He was then off work for a further period of two months (for which he was paid sick or other leave), before resuming his work as a bus driver. There was a dispute regarding whether his hours thereafter were reduced as a consequence of any injury sustained in the accident. Part of the operations of the Appellant Employer were sold to another company, Connex Pty Limited, as from 31 December 2004. From that date Connex Pty Limited became the Respondent Worker’s employer. He continued in this work until 13 May 2005, at which point his driving licence was suspended, following his conviction on charges arising from the accident of 5 February 2004. He said in one of his statements “I have not been able to work since 13 May 2005 as I have lost my licence.”

The Respondent Worker’s claim form is dated 30 September 2005, and described the parts of the body injured as “chest and ribs”. After some investigation, the Appellant Employer declined the claim.

The ARD claimed weekly compensation of $975.00 per week from 5 February 2004, medical and hospital expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), and lump sum compensation of $65,000.00 (representing 35% whole person impairment) pursuant to section 66, together with $40,000.00 pursuant to section 67.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 1 December 2006 records the Arbitrator’s orders as follows:

1.   That there is an award for the Respondent in respect to aggravation to sleep apnoea; aggravation of hypertension; depression; left inguinal hernia and increase in weight.
2.   That the Respondent pay the Applicant $975 from 5 February 2004 to 20 February 2004;
3.   That the Respondent pay the Applicant $675 from 21 February 2004 to 13 April 2004;
4.   That the Respondent pay the Applicant $300 from 14 April 2004 to 13 May 2005;
5.   That the Respondent pay the Applicant at the maximum statutory rate from time to time adjusted for a worker with a dependant spouse from 14 May 2005 to July 2006. An award for the respondent thereafter.
6. That the Respondent pay the Applicant $3,900 for s.60 expenses. An award for the Respondent thereafter;
7.   That the Respondent pay the Applicant’s costs as agreed or assessed;
8.   That assessment of permanent impairment be referred to an AMS.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Neither party seeks to adduce fresh evidence. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The amount of compensation awarded by the Arbitrator significantly exceeds the figure of $5,000.00 set out in section 352(2)(a) of the1998 Act. The whole of the amount awarded is appealed against. The requirements of section 352(2) are satisfied.

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ISSUES RAISED ON THE APPEAL

There was no issue the Respondent Worker was involved in a motor accident in the course of his employment, as alleged, on 5 February 2004. There was a significant contest regarding whether the consequences of that incident were other than transient, and whether it could be established the multiple medical conditions suffered by the Respondent Worker were caused (or at least aggravated) by the accident.

Many of the medical complaints alleged by the Respondent Worker were found by the Arbitrator not to have resulted from injury in the accident. The Arbitrator made findings adverse to the Respondent Worker on causation, in respect of the pleaded allegations relating to depression, hernia, obesity and sleeplessness (described in the Certificate of Determination as “aggravation of sleep apnoea”). She also made a finding adverse to the Respondent Worker on an allegation of “aggravation of hypertension”, this having been raised by Dr Sanki (on whose opinion the Respondent Worker relied), although not actually pleaded in the ARD. The Arbitrator rejected the views of Dr Sanki on these matters, largely on the basis he did not explain his view that these complaints (most of which pre-dated the accident) were aggravated in the accident. The Arbitrator’s approach to the causation question confronting her on these issues was sound, and consistent with what was said by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) at [130] to [132]. The opinion of Dr Sanki on the majority of these issues amounted to a bare ipse dixit “not probative of the issue”. In respect of the hernia allegation, Dr Sanki did proffer an explanation for his opinion, being that the hernia resulted from an increase in abdominal pressure in the accident, the Respondent Worker having been wearing a seat belt. Given Dr Mastroianni’s opinion to the contrary, and the period between the motor accident, and detection of the hernia by Dr Sanki, over which no complaints referable to the hernia are recorded, I would have reached the same conclusion as the Arbitrator regarding the hernia. The Arbitrator’s findings on these causation issues are not challenged by either party to this appeal.

The Arbitrator made a finding in the Respondent Worker’s favour as regards causation of back and neck symptoms, concluding on this point “I find for the Applicant in respect to an aggravation of the degenerative changes in the cervical, dorsal and lumbo sacral regions of the spine arising from the accident of 5 February 2004.” (at [35] of her Reasons). She preferred the views of Dr Sanki to those of Dr Mastroianni (in the Appellant Employer’s case), on this issue, as Dr Sanki’s opinion explained the Respondent Worker’s complaints. She subsequently noted she had heard oral evidence from the Respondent Worker, and also Mr Garry Baxter (called by the Appellant Employer), and found both to be credible witnesses (at [55]).

It is this finding on causation in respect of the neck and back, together with the findings on incapacity and quantification of any weekly entitlement under section 40 of the 1987 Act, that are challenged in this appeal. The Appellant Employer’s submissions describe the following grounds of appeal:

(i)The finding of injury to the neck is contrary to the evidence. In particular the Arbitrator recorded the Respondent Worker made complaint of neck pain on admission to Liverpool Hospital (on the date of accident), when there is no such complaint recorded in the ambulance report and hospital notes. Thus it is said the Arbitrator has misstated the evidence on this point.
(ii)The finding of injury to the back, with ongoing consequences, was contrary to the evidence, in that the material from the Liverpool Hospital, and associated treaters, did not support the contention back complaints continued beyond 5 February 2004.
(iii)In preferring the opinion of Dr Sanki regarding causation of ongoing neck and back symptoms, the Arbitrator failed to properly consider the significance of the fact Dr Sanki did not see the Respondent Worker until 7 April 2005, on referral from Dr Khan, after the Respondent Worker fell at home. The Respondent Worker did not refer to the motor accident on that consultation. When the Respondent Worker did give a history of the motor accident to Dr Sanki on 11 October 2005, he referred to chest and rib cage pain as resulting from that accident. This was at variance with histories given by the Respondent Worker closer in time to 5 February 2004.
(iv)The finding of incapacity resulting from the back and neck injury, found to have occurred in the motor accident, was against the evidence, as the evidence overall indicated the Respondent Worker’s incapacity resulted from other health problems, found to be unrelated to the accident.
(v)The Arbitrator erred in her calculation of the Respondent Worker’s section 40 entitlement. The evidence did not establish a loss of $300.00 per week (the sum awarded while the Respondent Worker was back at work from 14 April 2004 to 13 May 2005). It is submitted the Arbitrator erred in how she approached the task of quantifying the section 40 entitlement, after the Respondent Worker lost his driving licence on 13 May 2005. It is said the Arbitrator’s award of the maximum statutory sum applicable pursuant to section 37, prior to 13 May 2006 (this should be July 2006), is inconsistent with the award thereafter (which was nil).
(vi)It is submitted “The Arbitrator has erred in applying section 40 and considering the effect of this man’s disqualification for driving and assessing his alleged economic incapacity.” This would raise the appropriateness of the Arbitrator’s approach to the section 40 discretion, in circumstances where loss of his licence would have prevented him carrying out his job as a bus driver, in any event.

The Respondent Worker’s Notice of Opposition to the appeal submits the evidence supported the finding on causation of the neck and back problems made by the Arbitrator. Reference is made to the Respondent Worker’s good attendance record (and accrued sick leave) prior to 5 February 2004, notwithstanding his pre-existing health problems. The Respondent Worker’s submissions emphasise the Arbitrator’s finding was made not only on documentary evidence, but also after hearing oral evidence from the Respondent Worker, and finding him a credible witness. Although the Respondent Worker has not himself appealed the decision, it is submitted the approach of the Arbitrator, in reducing the weekly award to nil from July 2006 (when the Respondent Worker commenced receiving a sickness benefit) was an incorrect application of the section 40 discretion. Notwithstanding this submission, the relief sought (handwritten at the conclusion of the Respondent Worker’s submissions) is that the Arbitrator’s decision be confirmed.

The Appellant Employer lodged submissions in reply. These refer to contemporaneous medical evidence around the time of the motor accident, and point out the relative lack of complaint regarding the neck and back. They also refer to a number of authorities going to exercise of the section 40 discretion, in which it was held appropriate to reduce the arithmetical difference substantially.

DISCUSSION AND FINDINGS

Scope of the Review Process

In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 Byron DP at [54] said:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
However the review process is broader than correction of error of the kind identified in House v The King. In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) Bryson JA at [38] said:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was quoted with approval by McColl JA in Edmonds at [134].

The Alleged Fact Finding Error on Causation

The first of the Respondent Worker’s statements, annexed to the ARD, is unsigned and undated. A notation at the feet of its pages indicates it was recorded by his solicitors. No objection was taken to its use, notwithstanding it was not signed. It describes the Respondent Worker’s symptoms, when he was taken to Liverpool Hospital after the accident, as “My right side and ribs were aching”. It describes two weeks in Liverpool Hospital with “problems with breathing and chest pain”. It describes recently seeing “my GP/specialist Dr A Sanki who is now providing some treatment in relation to my chest”. This statement does not mention neck or back symptoms.
A second statement of the Respondent Worker dated 13 April 2006 is attached to the ARD. It seeks to answer matters arising from the statement of Mr Garry Baxter, which was attached to the Appellant Employer’s Reply. This statement of the Respondent Worker does not deal with the question of whether he suffered from symptoms in the neck and/or back, in the aftermath of the motor accident.
The Respondent Worker was given leave to rely on a third statement dated 4 October 2006, which was put on to respond to a second statement of Mr Garry Baxter (dated 25 September 2006). In this third statement the Respondent Worker described his symptoms on his return to work on about 14 April 2004:
“After my motor vehicle accident I still remained very sore. I had difficulty breathing. I had pain and discomfort in the back and neck and groin and I also had pain in my chest particularly on deep breathing or exertion.”
He also says that, when he worked overtime on “possibly two occasions” between 14 April 2004 and 31 December 2004, he “noticed pain in my chest and back”.
A statement of the Respondent Worker dated 12 July 2004 is attached to the Appellant Employer’s Reply. It is described as being in a matter of “Quigg”, and appears to have been taken by an investigator acting under instructions from Zurich Australia Insurance Limited. It is likely it was taken to assist in the defence of a claim by some other person arising from the motor accident of 5 February 2004. It describes the circumstances of the accident. At [18] the Respondent Worker said “I was taken to Liverpool Hospital. I was not injured as a result of this accident. I do not know the names of any witnesses.”
The claim form signed by the Respondent Worker dated 30 September 2005 described the parts of the body injured as “chest and ribs”. The neck and back are not mentioned in that document.
When the Respondent Worker gave evidence, his counsel attempted to elicit evidence of the symptoms experienced immediately after the accident, and on admission to Liverpool Hospital (at T5). That evidence does not assist in identifying the Respondent Worker’s complaints at those times. Counsel returned to the topic (at T7), where the following appears:
“Q. Do you recall whether or not you got hurt in the accident?
A. Probably I hurt. That’s why I’m in hospital. I been a couple of weeks and I’m off work.
Q. What do you say got hurt in the accident. Can you tell --
A. Can you start again?
Q. Well, you say you got hurt in the accident. What did you hurt in the accident? What was hurt? What part of you was hurt?
A. The chest and couldn’t breathe like before.
Q. Yeah. Did you have any problems like that before the accident?
A. No.”
The Appellant Employer’s submissions place considerable emphasis on the material from Liverpool Hospital. Those documents include an ambulance report, which described the Respondent Worker’s chief complaint as “lower back pain”, also mentioning radiation to the left leg. The neck was not mentioned. The Emergency Department Clinical record described the Respondent Worker, at 2.54 pm on 5 February 2004, complaining of “lower back pain”. It specifically recorded “Nil c/o pain to neck”. A handwritten history recorded “complaining of some L sided leg pain – mild lumbar back pain”. It went on to describe “has been feeling unwell for weeks for months with fevers + sweats”. It specifically stated “remembers accident clearly + in detail – no LOC, no head injury, no neck pain, all movements (noted?)”.
An entry in the notes later on 5 February 2004, by the evening medical registrar, recorded “nil significant injury, had lower back pain now resolved”. It then went on to describe various respiratory problems. The Respondent Worker was seen by Dr Melissa Baraket, staff specialist in respiratory medicine, on 6 February 2004. In the notes she recorded a history of the motor accident, followed by “denies any pain at present”. She also recorded a history of “OA – knees/back. Pain in calf + buttock on walking”. I take this to refer to a past history of osteoarthritis. There are multiple references thereafter to complaints and treatment for the Respondent Worker’s respiratory problems, obesity, and sleep apnoea, for which he was being treated. An entry on 10 February 2004 recorded “still c o back pain”. The notes then record multiple entries until the Respondent Worker’s discharge on 20 February 2004. These relate to matters such as sleep apnoea, and consultations with a dietician. There are no entries over this period describing back or neck complaints.

The Liverpool Hospital documents include a series of reports from doctors in the Respiratory Clinic, initially Dr Baraket, dated from 11 March 2004 to 16 January 2006, dealing with sleep apnoea and associated problems. The only reference to neck or back complaints is in the first of these, dated 11 March 2004, which recorded, amongst other things, “a background of systemic hypertension and osteoarthritis involving the knees and spine.”
On 5 February 2004 x-rays were carried out of various parts of the Respondent Worker’s body, including the lumbar spine. The neck was not x-rayed on that occasion, or subsequently during the admission.
The Appellant Employer was given leave to rely upon late documents lodged 25 September 2006. These included some material relating to the Respondent Worker’s treatment at Liverpool Hospital in 1990. No objection appears to have been taken to the material, on the basis it related to a person other than the Respondent Worker, and the notes relate to a person with the same surname and date of birth as the Respondent Worker, but using the first name “Mick”. This is the first name used by the Respondent Worker in his unsigned statement attached to the ARD. The “non-inpatient rehabilitation and geriatrics registration form” records a principal diagnosis as “Accident 1 yr ago”, and problems as “Been in hosp in Dee Why Memorial – Back education – not working”. An attached typewritten report of Dr Brett Gardiner dated “11^th May” describes back education as having been requested by “his surgeon Dr Smith”, and “He is currently heavily involved in considerations as to possible surgery”. It described some findings on examination, saying “I do feel that the level of disability complained of exceeds the impairment”. It concluded “…we will provide him with back education only without looking at any of the functional, social and psychological factors associated with his cronic (sic) back pain condition.”
There are handwritten notes attached to these documents, dated “11/5”, which go into more detail. They record the patient was a bus driver who was injured on 6 January 1989 at Harris Park Bus Company, when he slipped on bus steps and hit his back. It is recorded he stopped work three weeks after this incident, and had been off since then. The patient had seen a solicitor once, was on reduced payments after being sacked six months after this incident, and had been referred to Dr R Smith in Macquarie Street. He had three weeks hospitalisation in Delmar Hospital, Dee Why, with traction, in October to November 1989. He then had manipulation by a physiotherapist, injection, and one weeks hospitalisation for discogram and paw paw injection. It recorded the patient’s surgeon “now wants to operate - ?LS laminectomy & discectomy”. This describes a significant episode of back symptoms and treatment. It is consistent with Mr Garry Baxter’s statement at [8], where he says “I believe that Mr Stanojevic had a workers compensation claim with a previous employer for Harris Park Transport for a back injury.”
Documents attached to the Application to Admit Late Documents lodged 25 September 2006 also included copy clinical records from the Mount Pritchard Super Care Family Medical Centre, relating to the Respondent Worker. The note on “12/11/99” recorded inter alia “XR for lumbar pain”. On “23/11/99” it recorded “pain over lumbar area occ.”. There is an x-ray report dated 17 November 1999 of the lumbo sacral spine, which in summary says “No obvious disc pathology or other lumbar sacral abnormality”. I did not observe any other entries relating to either the back or neck, during the period from October 1999 (when the notes commenced) to 11 November 2004 (the most recent entry in the notes).
Dr Sanki’s report dated 12 April 2006 described a consultation on that day, enquiring about treatment for a hernia. Dr Sanki recommended weight loss before surgery for the hernia, and enquired whether “the insurance company” would approve a weight loss program. The report also mentioned the condition of plantar fasciitis, recommending cortisones injection, again asking “Could the insurance company kindly approve”. This report does not record the history given (the motor accident is not mentioned), nor does it mention the neck or back.
There is a second report of Dr Sanki dated 13 April 2006. It records the accident of 5 February 2004, and summarises the notes from Liverpool Hospital relating to the admission thereafter. It records the Respondent Worker “came under the care of our Dr I.U. Khan on the 2.4.05 due to pain in his right chest as a result of a fall on the concrete at home”. Investigations revealed fractures of the right sixth, seventh and eighth ribs. Dr Khan referred the patient to Dr Sanki “because of pain in his right rib cage and his chest x-ray showing query consolidation of the lungs”. The Respondent Worker first saw Dr Sanki on 7 April 2005, complaining of right rib cage pain. Investigations showed a left inguinal hernia. There is no mention of neck or back symptoms in the complaints recorded by Dr Sanki, up to that point. The report then continues “Patient complained to Dr Khan about pain in the neck, his back.” It does not say when. This is the first time neck symptoms are raised in any of the documentation. The report describes x-rays of the neck and back. Assuming (as is likely) these are the same x-rays shown to Dr Mastroianni, they were taken on 21 December 2005. Dr Sanki’s report describes x-ray findings consistent with degenerative or minor arthritic change in the cervical, dorsal and lumbo sacral spine. Dr Sanki records the Respondent Worker first complained to him about the motor accident on 11 October 2005, saying he had developed chest pain and rib cage pain, and also mentioning the loss of his licence. This consultation post-dates the Respondent Worker’s claim form (dated 30 September 2005) by a little less than two weeks. The report describes CT scan reports of the lumbo sacral spine (on 30 January 2006) and cervical spine (on 31 January 2006).
Dr Sanki (relevant to the neck and back complaints) diagnoses “aggravation of degenerative changes in the cervical, dorsal and lumbo sacral regions of the spine”. There are then two short reports from Dr Sanki addressed to the solicitors for the Respondent Worker, dated 19 May 2006 and 9 June 2006, dealing with the Respondent Worker’s obesity and hernia, which do not touch on neck or back symptoms.
The other relevant medical evidence is that of Dr Mastoianni, whose reports dated 16 February 2006 and 8 August 2006, were used by the Appellant Employer. The history to that doctor on 16 February 2006 was of initial symptoms after the motor accident being predominantly of chest pain, although there was “a bit of neck and back pain”, which required no treatment. The Respondent Worker told Dr Mastroianni his inability to work overtime after he resumed work as a bus driver, was due to “back problems and problems with his health generally and the traffic”. The present symptoms are described as “a lot of pain affecting his neck, back and ribs”, “every joint is sore, and his ankles are very sore, particularly the right one”. There is “no history of any previous or subsequent injuries”. Dr Mastroianni opines the Respondent Worker’s various complaints are constitutional, and unrelated to the motor accident. He regarded the Respondent Worker as fit for his usual work as a bus driver, and said the reason he stopped this work was the loss of his licence. The report dated 8 August 2006 did not follow on an examination of the Respondent Worker. Dr Mastroianni comments on questions of causation and the lump sum claim advanced by the Respondent Worker, largely reiterating the views on causation he had previously expressed.
An analysis of the Arbitrator’s reasons, which led her to accept the evidence of Dr Sanki that there was “aggravation of degenerative changes in the Respondent Worker’s cervical, dorsal and lumbo sacral regions of the spine arising from the accident of 5 February 2004”, reveals misstatements of the evidence. At [33] it is stated “there is no dispute that Mr Stanojevic was taken to hospital and as the clinical notes record he was suffering from neck and back pain upon admission”. The clinical material confirms complaints of lumbar pain in the ambulance report, and on admission to Liverpool Hospital, on 5 February 2004. There are no complaints recorded referable to the cervical region. Whether the Respondent Worker was suffering from cervical symptoms at that stage was a matter in dispute. The only reference to cervical symptoms in the Liverpool Hospital material, is in a history specifically denying any such symptoms (that recorded in the Emergency Department Clinical Record on 5 February, 2004, referred to at [30] above). The earliest complaint of neck symptoms to be found in the medical evidence, is that to Dr Khan, referred to in Dr Sanki’s report, discussed at [38] above. The report is non-specific regarding when this occurred. It would be after 7 April 2005 (when Dr Sanki was consulted on referral from Dr Khan, regarding right rib cage pain). It is likely to be between 11 October 2005 (when the Respondent Worker mentioned the motor accident to Dr Sanki, but did not mention his neck or back), and 21 December 2005 (when x-rays, including of the neck, were carried out). No report or notes from Dr Khan were available, to be precise regarding when the Respondent Worker first mentioned back or neck symptoms.
The Arbitrator, at [34] of her reasons, said “Mr Stanojevic maintains that he had no problems to his back and neck prior to the accident and that he had a good work record which is not disputed. It was following the accident that he complained of back and neck pain. I have no reason not to accept that evidence.” This fails to take account of the material from Liverpool Hospital, in 1990, referred to at [34] and [35] above. It is clear the Respondent Worker had a major episode of back pain, following an injury at Harris Park Bus Company on 6 January 1989. By the time he was being treated at Liverpool Hospital in May, 1990, he had been off work for about fifteen months, had lost his job, had undergone three weeks hospitalisation associated with traction, had undergone injections and a discogram, and was under the care of a specialist who was seriously considering spinal surgery. Notwithstanding the time which had elapsed since 1990, it was clearly a significant matter of history, in so far as the current claim related to low back symptoms. It was not referred to in the medical evidence on the current claim. The only doctor who specifically recorded a history of prior injuries, Dr Mastroianni, was told (according to his report of 16 February 2006) that there were none. There were chronicled low back symptoms, in 1999, in the general practice records. These were sufficiently serious that the Respondent Worker was referred by his general practitioner for lumbar x-rays, taken 17 November 1999. There is also the history recorded by Dr Baraket, mentioned in her notes of 6 February 2004, and her report dated 11 March 2004, of a “background” of osteoarthritis involving the knees and spine. At the least, this is consistent with the Respondent Worker giving her a history of previous spinal symptoms of some description.
It follows from the above, the Arbitrator’s statement she had no reason not to accept the Respondent Worker had no back problems prior to 5 February 2004, also involves a misstatement of the evidence. There was significant evidence to the contrary.
The Arbitrator’s treatment of the existence of back symptoms after the motor accident (quoted at [42] above), whilst superficially accurate, fails to take account of significant aspects of the evidence, regarding onset and severity of lumbar symptoms. If there were a clear pattern of lumbar symptomatology after the motor accident, different to that which existed previously, this may represent a basis for preferring a view of the medical evidence consistent with ongoing aggravation. The contemporaneous evidence of complaint does not support this view of the lumbar symptoms. The ambulance report and history on admission to Liverpool Hospital corroborate lumbar complaints at that time. However by the evening of the date of accident, the evening medical registrar recorded a history “lower back pain now resolved”. There is an entry “still c o back pain” on 10 February 2004. This represents the only positive complaint of back pain in the hospital records between the evening of 5 February 2004, and the Respondent Worker’s discharge on 20 February 2004. I am mindful the thrust of treatment over that period was for the respiratory difficulties, rather than orthopaedic complaints.
The Respondent Worker was then off work for approximately two months. This is consistent with Dr Baraket’s handwritten entry in the hospital notes on 13 February 2004:
“Advised patient that with OSA (obstructive sleep apnoea), patient cannot drive professionally until adequate treatment according to law. – Needs 2 months off work.”
There is no further mention of back symptoms in the medical evidence, until the entries referred to in Dr Sanki’s report dated 13 April 2006, probably made sometime in the latter part of 2005, referred to at [38] and [41] above (the neck and back are mentioned together in this context).
It also should be noted neither the neck or back are mentioned in the Respondent Worker’s claim form dated 30 September 2005.
Thus, while there are back complaints recorded after the motor accident, those chronicled occur during a short period of less than one week after the accident. They are not (according to the available documentation) then mentioned again until being raised with Dr Khan in the latter part of 2005. Over this period the Respondent Worker has worked in his usual job as a bus driver (possibly with some reduction in hours, this was a matter in contention) until losing his licence on 13 May 2005. In failing to consider the relevance of this pattern of complaints, rather describing the Respondent Worker’s back complaints as something “following the accident”, in my view the Arbitrator failed to consider relevant evidence in assessing the causation issue.
The Respondent Worker’s submissions point out the decision was arrived at not only on the basis of documentary evidence, but also after hearing oral evidence from the Respondent Worker (together with Mr Gary Baxter). If there were clear evidence from the Respondent Worker, of ongoing back and/or neck symptoms after the motor accident, this would be of significance in considering whether the Respondent Worker had discharged his onus, of proving a causal link between such back and neck symptoms as he has suffered, and the accident. However the four statements help little in this regard. The relevant aspects of the statements, and the Respondent Worker’s oral evidence on the point, are referred to at [23] to [29] above. The two statements attached to the ARD do not refer to neck or back symptoms, although the first does refer to breathing and chest problems. The statement of 12 July 2004 denies injury in the accident. The claim form refers to “chest and ribs”, not neck or back. It is only the statement dated 4 October 2006 (approximately two and a half years post-accident) which contains reference to back or neck pain, in the context of saying such symptoms were present on the Respondent Worker’s resumption of work as a bus driver.
The oral evidence of the Respondent Worker also did not much assist in establishing injury to the neck or back. An interpreter was present. It appears the Respondent Worker gave his evidence predominately in English, although he knew of the interpreter’s availability, and said “If I not understand I ask” (T3.40). At T5 he was asked questions to elicit evidence of his symptoms at the accident scene, and on admission to Liverpool Hospital. He volunteered problems with his nerves (T5.25) and lung (5.55). When counsel returned to the topic at T7 (the passage quoted at [29] above), the Respondent Worker nominated chest and breathing problems as the things hurt in the accident.
The Appellant Employer, in its submissions in reply, put its argument thus:
“As a matter of commonsense it is submitted that it would be hard to accept that the worker was more concerned with his longstanding sleep apnoea than with any alleged immediate effects of what he now tells the Court were severe back and neck injuries. If he had been injured as severely as he has stated:-
a)He would have told someone;
b)There would have been ongoing complaints;
Other than the worker himself, there is no evidence of ongoing complaints from the time of injury until in excess of a year after the event when complaints are made retrospectively and following a fresh frank injury.
In short the Arbitrator rejected the best and most reliable evidence with respect to the effects of the injury on the Applicant.”
This submission is persuasive. It is difficult to accept the Respondent Worker injured his neck as alleged, when the first complaint of neck symptoms occurs at a time which cannot be precisely identified on the evidence, but is, on the probabilities, after 11 October 2005 (when a history was given to Dr Sanki of the motor accident, describing only chest and rib cage pain). Similarly, it is difficult to accept there were ongoing effects on the Respondent Worker’s back, when the back is not mentioned between 10 February 2004 (the last such complaint at Liverpool Hospital) and some time, on the probabilities, after 11 October 2005. The Arbitrator’s reasons for accepting Dr Sanki’s view on causation, of the neck and back problems, are undermined by the misstatement of the evidence, regarding pre-existing symptoms in the low back, and regarding the pattern of symptoms after the motor accident.
There were other reasons why Dr Sanki’s view on this point was lacking in persuasive weight. Although he refers to the appearance of the lumbo sacral spine on CT scan as “most probably pre-existent to the accident”, Dr Sanki’s reports do not suggest he was aware of the prior history of back symptoms, both the significant episode in 1989/1990, and the symptoms present in 1999. This tends to deprive his view, on causation of the low back problems, of persuasive weight. In Makita (Australia) Pty Limited v Sproules (2001) 52 NSWLR 705 Heydon JA said:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.” (at [64])
Further, Dr Sanki’s views on causation, of both the neck and back symptoms, are in my view, nothing more than a bare ipse dixit. In Edmonds McColl JA said:
“130. In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
“… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
131. This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that “[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary” (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”.
132. In my view Dr Rivett’s statement that “in general all the problems are work-related” which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”

The Arbitrator’s Finding on Credit

The submissions of the Respondent Worker, in seeking to defend the award, refer to the oral evidence given, and the Arbitrator’s acceptance of it. At one point it is submitted, “The Arbitrator accepted the evidence of the worker. The Arbitrator was best placed to observe the worker in giving his oral evidence and applying that observation to the statements.”
In Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow J and Kirby J said:
“It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [eg Trawl Industries of Australia Pty Ltdv Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348, per Samuels JA.] Thus, in 1924 Atkin LJ observed in Société d’Advances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) [(1924) 20 Ll L Rep 140 at 152].
‘… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell the truth from falsehood accurately on the basis of such appearances [See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617-618]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”(at[30] to [31])

Ipp JA, in Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 (‘Goodrich Aerospace’), quoted the above passage, referred to a number of learned articles dealing with demeanour, and continued:

“These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.” (at [27])

The matter is not one where the Arbitrator could, overall, resolve the issues before her, going to the existence and causation of neck and back symptoms, solely by a credit finding. In his oral evidence, the Respondent Worker did not refer to having injured his neck or back, when attempts were made to elicit evidence from him of his injuries. Injury to the neck and back were not referred to in the first (undated) statement, which referred only to problems with breathing and chest pain. The statement of 12 July 2004 specifically denied injury in the motor accident. Neck and back pain were not referred to in the claim form. The statement, dated 4 October 2006 does describe neck and back pain, as having existed from when the Respondent Worker resumed work as a bus driver, a little more than two months after his motor accident. However simply to accept the Respondent Worker as a witness who was credible, and not deliberately attempting to mislead the Commission (Arbitrator’s Reasons at [55]), did not resolve the question of when the Respondent Worker commenced to suffer neck symptoms, or whether there was any continuity of back symptoms, following the original complaint at Liverpool Hospital in the days following the accident. There were competing versions of events on these questions, from the Respondent Worker himself, if one compares the various statements and oral evidence.

To the extent the issue was resolved by way of a credit finding, it is one susceptible to being overturned on appeal, consistent with the principles laid down in Fox v Percy and Goodrich Aerospace. The passages of the Arbitrator’s Reasons, dealing with the Respondent Worker’s credit, are at [34] and [55]. In particular at [34], the Arbitrator expressed an acceptance of the Respondent Worker’s evidence regarding a lack of neck and back complaint prior to the motor accident, and ongoing complaints thereafter, saying she had no reason not to accept that evidence. This did not involve examining whether the disputed evidence was “consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence”, to quote from Goodrich Aerospace. Rather it involved a failure to consider other evidence inconsistent with the proposition.

Conclusion

It follows from the above, that the Arbitrator’s decision, in my view, demonstrates appealable error. The finding on credit was flawed, in that it did not take account of other relevant evidence, inconsistent with that of the Respondent Worker, going to whether he suffered from neck and back symptoms prior to the motor accident, and whether (and when) he suffered from such symptoms thereafter. The acceptance of the evidence of Dr Sanki, on causation of back and neck symptoms, was in error, in that the reason given, at [33] to [35], for preferring that medical evidence, was inconsistent with, and involved a misstatement of, other evidence. The acceptance of Dr Sanki on the point was further in error, in that Dr Sanki’s views were deprived of weight, both by their failure to deal with prior back symptoms by way of history, and their failure to proffer more than a bare ipse dixit.
Consequently the Arbitrator’s decision dated 1 December 2006 must be revoked.

The Other Grounds of Appeal

For reasons which will follow, it is desirable I remit the matter to another Arbitrator for determination afresh. Accordingly, it is appropriate I deal briefly with the other grounds of appeal, which went to assessment of the weekly award, should this become relevant.
A determination of quantum of the weekly entitlement will be largely dependant upon such findings as to causation, and incapacity, as may be made on the further determination. However there are two matters to which I should refer.
The Respondent Worker lost his driving licence from 13 May 2005. From that point in time, he would have been precluded, by law, from working as a bus driver, which was his usual occupation with the Appellant Employer, and with Connex Pty Limited (subsequent to 31 December 2004). Probable earnings as a bus driver represented the upper level of the section 40 equation (section 40(2)(a)). Notwithstanding the Respondent Worker could not have pursued that occupation subsequent to 13 May 2005, it is still necessary to look to the probable earnings in that occupation, as the upper limb of the section 40 calculation. Dealing with the equivalent provision, section 11(1) of the Workers Compensation Act 1926, in Australian Wire Industries Pty Limited v Nicholson (1985) 1 NSWCCR 50, McHugh JA said:
“…in making the assessment under the first step, it was irrelevant that a statute required a person to retire before the application for compensation was brought. The retirement of the worker, whether by statute or otherwise, therefore, is quite irrelevant to the computation of earnings based on that hypothesis. That is because continuation of the worker’s employment is part of the hypothesis which the first step in section 11(1) requires. Whether or not the actual facts of the worker’s employment are consistent with that hypothesis is beside the point.” (at 54D)
If a worker would not have been able to work in his usual occupation in any event, for example due to compulsory retirement, such considerations are appropriately dealt with at the discretionary stage, described as stage 4 of the steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, where it was said:
“The function to be served by this discretionary phase has been discussed in a number of cases. In Australian Iron & Steel Pty Limited v Elliott (1966) 67 SR (NSW) 87 it was held that the fact that the worker was prohibited by law from working in or about a coal mine, even if he had not been injured, was a circumstance to be taken into consideration in determining the amount to be awarded.” (at 534E)
In Bonds Industries Limited v Borg [2007] NSWWCCPD 80, at [135], I set out some examples, from the case law, of circumstances where it had been held appropriate to reduce section 40 awards applying the statutory discretion.
In the current matter, the Arbitrator, at [72] of her Reasons, said “There are no factors in this case which lead me to the view that I should use the discretion.” In entering an award pursuant to section 40 beyond 13 May 2005, in circumstances where the worker would have been precluded from continuing in his usual job as a bus driver, even if uninjured, due to loss of his licence, it would in my view constitute legal error not to exercise the discretion pursuant to section 40. I should add the discretion is one pursuant to section 40. The findings made by the Arbitrator, in respect of the period subsequent to 13 May 2005, represent a finding of total (rather than partial) incapacity, although the Arbitrator has not expressed it in those terms. The same discretionary considerations do not apply to an award based upon total incapacity. In saying this, I am in no way suggesting a finding of total incapacity was appropriate, merely observing this was the effect of the Arbitrator’s finding: Moran Health Care Services v Woods (1997) 14 NSWCCR 499; Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206.
I also note the Arbitrator ended the award in the Respondent Worker’s favour, as from July 2006, when he commenced to receive sickness benefit from Centrelink. She did so on the basis incapacity resulting from injury on 5 February 2004 ended, when the Respondent Worker became eligible for sickness benefit. She described this as acceptance of a proposition put to her by counsel for the Respondent Worker. Counsel had not put that proposition. He had suggested his opponent may well put a submission that, from July 2006 when the Respondent Worker commenced to receive sickness benefit, his other health problems had deteriorated to a point where the Respondent Worker may not have been in the workforce in any event (T26.55). Such a submission, if put, and accepted, would not end a worker’s entitlement pursuant to section 37 or section 40. It would potentially justify a significant reduction of any section 40 award, on a discretionary basis.

DECISION

The Arbitrator’s decision was given after hearing oral evidence from the Respondent Worker, together with Mr Garry Baxter. The Arbitrator made a finding based upon credit, after hearing such evidence. I have found certain of the Arbitrator’s findings (including that on credit) were in error, such that the decision should be revoked. However I have not had the benefit of hearing oral evidence, and consequently I am not in as good a position as the Arbitrator to determine the matter. Whilst I am of the view the reports of Dr Sanki were insufficient to discharge an onus, of establishing the Respondent Worker suffered from ongoing neck and back symptoms resulting from the motor accident, there were limited recorded lumbar complaints at Liverpool Hospital. Depending upon what evidence is accepted on the rehearing, a finding could be made, consistent with these reasons, that the Respondent Worker had a compensable incapacity due to aggravation of his low back condition. A consideration of the issues in the case will, of necessity, include a consideration of the Respondent Worker’s evidence, in conjunction with the other relevant evidence, including that going to the symptoms before and after the motor accident. In such circumstances, it is appropriate the matter be remitted to another Arbitrator for determination afresh, rather than that I redetermine it.

Whilst it will be a matter within the discretion of the Arbitrator who hears the further determination, in my view it would be an appropriate exercise of discretion, to allow oral evidence and cross-examination, particularly going to the prior back complaints, and the pattern of back complaints subsequent to the motor accident.

The decision of the Arbitrator dated 1 December 2006 is revoked, and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

COSTS

I make no order as to costs of the appeal.

Michael Snell
Acting Deputy President
1 August 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE