Hunter New England Area Health Service v Patience
[2009] NSWWCCPD 68
•17 June 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Hunter New England Area Health Service v Patience & Anor [2009] NSWWCCPD 68 | ||||
| APPELLANT: | Hunter New England Area Health Service | ||||
| FIRST RESPONDENT: | Timothy Patience | ||||
| SECOND RESPONDENT: | Calvary Retirement Community Cessnock Ltd | ||||
| APPELLANT’S INSURER: | GIO General Ltd as agent for TMF | ||||
| SECOND RESPONDENT’S INSURER: | Allianz Australia Workers Compensation (NSW) Ltd from 1 April 2003 to 29 June 2007. Catholic Church Insurances Ltd from 30 June 2007. | ||||
| FILE NUMBER: | A1-9138/08 | ||||
| ARBITRATOR: | Ms E. Grotte | ||||
| DATE OF ARBITRATOR’S DECISION: | 27 February 2009 | ||||
| DATE OF APPEAL DECISION: | 17 June 2009 | ||||
| SUBJECT MATTER OF DECISION: | Apportionment of liability between the Appellant and Second Respondent; section 22 of the Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| First Respondent: | Armstrongs Solicitors | ||||
| Second Respondent: | Astridge & Murray | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 27 February 2009 is confirmed. | ||||
| 2. The Appellant is to pay all parties’ costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 20 March 2009 Hunter New England Area Health Service (‘the Appellant/Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 27 February 2009.
The First Respondent to the Appeal is Timothy Patience (‘the First Respondent/Worker/Mr Patience’). The Second Respondent to the Appeal is Calvary Retirement Community Cessnock Limited (‘the Second Respondent/Employer’).
Mr Patience was employed by the Appellant as a plumber from 24 September 1990 until 2003 when the facility was taken over by the Second Respondent.
The Appellant was insured by GIO General Ltd (‘GIO’) from 1 April 1994 to 31 March 2003. The Second Respondent was insured by Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) from 1 April 2003 to 29 June 2007 and by Catholic Church Insurances Limited (‘CCI’) from 30 June 2007 onwards.
The solicitors for the Appellant also appeared on behalf of the Second Respondent in the interests of Allianz.
Mr Patience injured his right knee in an accident at work on 15 April 1994. He injured his left knee at work on 24 January 2001.
Liability was accepted for the two injuries by the Appellant, and Mr Patience was paid lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for the right knee in 1996 and for the left knee in 2002.
Mr Patience remained at work with both the Appellant and then the Second Respondent until June 2008. He then took long service leave, in part, he said, because of increasing pain in his knees, and has remained off work since.
Mr Patience stated that he had not had much time off work over the years except for periods when he underwent extensive surgery to both knees. He continued to perform his normal duties until 2008, but said that he had to “tailor’ his duties to cope with his knee problems.
On 17 November 2008 Mr Patience filed an ‘Application to Resolve a Dispute’ (the’ Application’) in the Commission seeking weekly benefits from 1 September 2008 together with medical expenses. In his Application, he claimed that as a consequence of the two frank injuries on 15 April 1994 and 24 January 2001 together with the nature and conditions of his employment with both the Appellant [named as First Respondent] and the Second Respondent, he was incapacitated for work.
The parties attended a conciliation/arbitration hearing on 5 February 2009 where Mr Patience gave oral evidence.
On 27 February 2009 a ‘Certificate of Determination’ was issued, together with an accompanying ‘Statement of Reasons’ (‘Reasons’). The Arbitrator found in favour of Mr Patience awarding him weekly benefits and medical expenses. She found that the Appellant was entirely responsible for the award, and made an award in favour of the Second Respondent.
It is from this decision that the Appellant seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 February 2009 records the Arbitrator’s orders as follows:
“1.The First Respondent in the interests of GIO General Limited to pay weekly benefits compensation to the Applicant as follows:
(i)Pursuant to section 36 in the amount of $871.34 per week from 1 September 2008 to 3 February 2009;
(ii)Pursuant to section 40 in the amount of $381.40 per week from 4 February 2009 to date and continuing.
2.The First Respondent in the interests of GIO General Limited to pay the Applicant’s reasonably necessary section 60 expenses on production of accounts/ and/or receipts.
3.Award in favour of the Second Respondent in respect of any claim for weekly benefits compensation and section 60 expenses.
4.The First Respondent in the interests of GIO General Limited to pay the Applicant’s costs and the costs of the Second Respondent as agreed or assessed. I am satisfied there were complex legal and factual issues in this matter and that this matter warrants being certified as complex for the purposes of Schedule 1 of the Workers Compensation (Costs) Regulation 2006. I am satisfied that an uptake of 25% is appropriate in this matter given the amount of work required to be done by the parties regarding the financial aspects of the claim. I am satisfied that the uplift is applicable to all the parties.”
ISSUES IN DISPUTE
The Appellant submits that the evidence supported a finding of ‘injury’ in the nature of a disease in addition to the two frank injuries pleaded, and that in those circumstances, the Arbitrator should have apportioned the award pursuant to section 22 of the 1987 Act and in line with the decision of Rail ServicesAustralia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’). The Appellant has quite properly confined the issue in dispute on appeal to this question of apportionment between the Appellant and the Second Respondent.
The Appellant submits that the Arbitrator erred in failing to properly take into account relevant evidence, incorrectly interpreted evidence upon which she relied, and failed to properly apportion liability for Mr Patience’s incapacity between the injuries relied upon by him. It is also alleged that the Arbitrator failed to provide sufficient reasons for her decision.
Both the First and Second Respondents oppose the appeal, and assert that the Arbitrator’s decision was correct and consistent with the evidence.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by all the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
THE EVIDENCE
Mr Patience’s Evidence
Relevant portions of Mr Patience’s statement of 13 December 2007 are set out as follows:
“On 15 April 1994… I turned and twisted my right knee. I was referred to Dr Lindsay Laird , Orthopaedic Surgeon, who carried out an arthroscopy on my right knee.
My right knee did improve after the operation, but gradually deteriorated over the years.The pain and swelling never completely left me.
On 24 January 2001 I injured my left knee. [I saw] Dr Laird again. My left knee has
never returned to normal.
I have not had much time off work because of these injuries. Most of the time off work has been due to the various operations on my knees. I have continued with my normal duties.
My knees ache all of the time, but the aching, swelling and pain is worse after work and much worse when I have finished working under one of the older buildings [which involves] crawling, kneeling, bending and squatting…in very cramped spaces.
In 2005 Dr Laird advised me that I needed a further arthroscopic procedure on my right knee. Initially [the Appellant] refused to pay for this procedure but on 30 August 2005 the Commission ordered [the Appellant] to reimburse me for [these expenses].
I have now had a total of 4 arthroscopes on my right knee and 3 arthroscopes on my left knee.
I have found that since the arthroscope and synvisc injections in my left knee it is not as painful when walking.”
In that statement, Mr Patience also claimed that the Appellant had agreed to pay for the synvisc injections but not for a further arthroscope recommended by Dr Laird. He wished to have that procedure performed.
In his statement dated 10 November 2008, Mr Patience added:
“I continued performing my normal duties at Calvary [the Second Respondent] until 5 August 2008. I was having difficulty though due to continuing pain, aching and restricted movement in both knees.
In May 2008 Calvary advised myself and a number of other employees that our positions were to be made redundant on 25 June 2008.
The redundancy date was extended until 30 June 2008. I took a month’s annual leave in July 2008 partly due to increasing pain and problems with my knee, in particular the right knee. I then returned to Calvary for one day [but] was advised that they had no work for me and I was required to take one month’s long service leave. I was then advised to continue on long service leave.
I then consulted my GP, Dr Atkins at Bonnells Bay. My knees were not improving and he has provided me with a workcover certificate as to incapacity for work, at this stage current to 18 November 2008.”
In his oral evidence, Mr Patience stated that the work performed both for the Appellant and the Second Respondent was very similar [T7]. He said that he would currently be fit for supervisory work or a blood courier but could not perform work requiring squatting or at heights [T8].
When cross-examined by Counsel for the Second Respondent in the interests of CCI, Mr Patience agreed that his right knee had always played up and caused him problems ever since the injury in 1994. He had had to “tailor” his work to cope with the problems with his right knee. He had undergone four arthroscopies on the right knee prior to CCI’s period of risk.[T10]. He agreed that he had had problems with his left knee ever since the injury in 2001 and had been obliged to adapt his duties to cope with his left knee problems. His pain levels fluctuated; he had good and bad days [T11]. The pain became too much for him around 2008 and he felt he could not continue working [T12].
Under cross-examination by the solicitor for the Appellant, who also appeared for the Second Respondent in the interests of Allianz, Mr Patience agreed that, although he had tried to favour his legs and avoid certain activities, there were a lot of jobs where he just couldn’t avoid using his knees, bending and crouching, and that he’d continued to do such activities throughout his employment, admitting that those jobs caused him difficulties [T13].
I will consider the medical evidence shortly, but it is appropriate at this juncture to mention some other relevant evidence included in Mr Patience’s Application.
In May 2005 Mr Patience brought proceedings in the Commission [WCC7169-05] against the Appellant only, seeking payment of medical expenses incurred for treatment to his knees as a consequence of the two frank injuries in April 1994 and January 2001.The Arbitrator found in a Certificate of Determination dated 30 August 2005 that both injuries occurred in the course of his employment with the Appellant, that the employment was a substantial contributing factor to the injuries, and that the medical expenses incurred to date were reasonably necessary “for the compensable injury”. The Arbitrator also found that, since both Dr Laird and Dr Dryson, relied upon by the Appellant, agreed that arthroscopic debridement was likely to be beneficial to Mr Patience, that treatment, as proposed by Dr Laird, was “both a reasonable and necessary expense if it is incurred.”
In those proceedings, Dr Dryson, in a report dated 1 April 2005, had opined that:
“Mr Patience has significant osteoarthritis with both knees with loss of articular cartilage…Osteoarthritis is not a plausible consequence of such twisting injuries.
The cause of the pre-existing osteoarthritis is likely to be general wear and tear. There is no increased incidence of osteoarthritis of the knees in plumbers as far as I am aware.”
Dr Laird, in a report dated 24 May 2005 stated that:
“I would regard the ongoing disability that he has with both knees as being related to previous injuries he sustained in the course of his employment.”
I note also that the Appellant agreed to pay Mr Patience under section 66 of the 1987 Act 10% permanent loss of use of his left leg at or above the knee, the terms of that agreement set out in a section 66A Agreement dated 23 April 2002.
The Medical Evidence
The parties each relied upon a number of medical reports. Those relevant to the issue on appeal are summarised below.
Dr Laird provided a series of reports. In a report dated 17 February 1995, he stated:
“Arthroscopy was performed on 8 February 1995.
He has a tear in the medial meniscus…he has some Grade 3 chrondomalacia changes of the medial femoral condyle.
I would think that he may well have a few problems in the future…”
In his operation report of 27 March 2001, Dr Laird diagnosed a torn medial meniscus in the left knee. He performed an arthroscopy /debridement and arthroscopic partial medial menisectomy on the left knee.
I have already referred to Dr Laird’s report of 24 May 2005 and his conclusion. The report sets out in some detail the various operations he performed, and, in Dr Laird’s opinion, Mr Patience “would undoubtedly eventually come to needing bilateral total knee replacements.”
In a report dated 19 July 2005, Dr Laird commented on the report of Dr Evan Dryson to which I have referred in [31] above. He said:
“This gentleman has had some early degenerative changes affecting his knee and this was noted even back in 1994 when he had the previous arthroscopy of his right knee.
This gentleman has had increasing degenerative arthritis affecting both knees. He has had this for many years. Over a period of time the arthritic changes in both knees have become progressively worse.
This gentleman has worked at the Calvary Retirement Home and as part of his work this involved kneeling, crawling, squatting underneath buildings and carrying out various plumbing works.
He has had several minor injuries to both knees during this period of time. As you are no doubt aware, any type of injury can be a precipitating factor in arthritic changes going from a rather chronic nature to an acute nature requiring acute treatment.
Quite obviously these injuries during his employment at the Calvary Retirement Home have not been the cause of the underlying arthritis which has had a very long history. However I would state that they have been a contributing fact to firstly the need for him having the arthroscopic debridement of his knee and secondly to him ultimately requiring knee replacement. I would state that this employment has aggravated and in fact accelerated the arthritic condition in both knees.”
A further arthroscopy and debridement of both knees was performed by Dr Laird on 11 December 2006. In a report dated 18 December 2006, Dr Laird said:
“Unfortunately he is going to get some further problems again in the future with both knees. At the moment we are just trying to but him some time.”
In a report dated 3 October 2007, Dr Laird said:
“He is age 51 and has degenerative changes affecting both knees. His right is worse than his left.
He continues to work as a maintenance plumber at the Calvary Hospital in Cessnock.
Clinically, he has very advanced degenerative changes affecting the right knee with the obvious varus deformity and the hypertrophic degenerative change is easily palpable over the medial compartment of the knee.There is no question that he is going to need the right total knee replacement.”
Dr Laird considered that further arthroscopy was warranted. On 30 October 2007, a further arthroscopy was carried out on the left knee. Dr Laird then sought approval from the GIO for further arthroscopy and Synvisc injection into the right knee. This request was denied in December 2007.
Mr Patience also relied on a report from Dr Trevor Best, Orthopaedic Surgeon, dated 3 April 2008. Dr Best noted the history of the two frank injuries and stated:
“Subsequently both knees have gradually deteriorated and generally the right knee has been more severely affected.”
Dr Best concluded:
“Although the osteoarthritis affecting both knees on Mr Patience is constitutional, I suggest that the nature and conditions of his work as a Plumber has played a significant part in the deterioration of his osteoarthritic knees. From this point of view I suggest that his work as a Plumber for Calvary Retirement Community at Cessnock has been a substantial contributing factor to his present continuing and permanent bilateral knee impairments.As a result of his work I suggest that his bilateral knee symptoms have developed earlier than otherwise would have occurred. Therefore his work has been responsible for the necessary treatment that has been carried out.”
As to the proposed further treatment by Dr Laird, Dr Best opined:
“The evidence is that Synvisc injections following arthroscopic lavage are more effective than without arthroscopic lavage and I am in agreement with this approach to treatment. I suggest that both Dr Laird and Mr Patience are taking a logical and reasonable approach to treatment.”
The Appellant relied upon a report from Dr John Bentivoglio dated 9 October 2007. He noted the history of the injuries to both knees and that “He continues to work as a plumber at Allandale Hospital.” Dr Bentivoglio concluded:
“Mr Patience has had tears of his medial menisci as a result of work injuries. Unfortunately he has developed significant degenerative osteorarthrosis involving the medial compartment of his right knee as a result of his initial injury, as well as the surgical treatment.
With his left knee, he has also sustained a tear of the medial meniscus in his left knee, and although the damage to the medial compartment of his knee is not as severe as with the right one, it will eventually become so.
I believe that you are liable for further treatment, including, if necessary, total knee joint replacement for this gentleman.
This gentleman’s ongoing knee complaints are directly attributable to the injuries that he has had to his knees at work whilst employed by Allandale Hospital. His employment was a substantial contributing factor.
This gentleman’s knee symptoms have deteriorated in the past, and will continue to do so. It will eventually get to a point where he will require bilateral total knee joint replacements. I feel that you are liable for the cost of these to be done.”
Dr Bentivoglio also considered that it was reasonable and appropriate for Mr Patience to have further arthroscopic debridement of his left knee together with the Synvisc injections into both knees. In a supplementary report dated 11 February 2008, Dr Bentivoglio opined that a further arthroscopy on the right knee was not appropriate, but that the Synvisc injections were.
The Second Respondent in the interests of CCI relied upon a report from Dr Stephen Potter, Rheumatologist, dated 1 October 2008. Dr Potter for some reason noted the “Date of Accident: 01/09/2008.” He noted the employer as “Calvary Retirement Community, Cessnock” and that “There is one employer but two insurance companies.” He then noted this history:
“In 1994 he injured his right knee. It was a twisting injury…The left knee problem began in 2001. He was digging a hole and his foot was in clay. He twisted his left knee…He has not described to my questioning any nature of working conditions that would cause this pathology, rather those specific events, though he does realize he is bow-legged.
During the time frame when the [CCI] was at risk, the patient makes it quite clear he sustained no injury… nothing in his history working for [Calvary] 30/06/2007 to 30/06/2009 has caused this man any added distress…Mr Patience is suffering with progressive osteoarthritis of the knees…There is no evidence [that CCI] has any responsibility in the claim…In the correspondence is a letter from [Mr Patience’s solicitor] suggesting the nature of work and conditions, but in fairness there is no data to support that speculation”.
In answer to the question “Do you believe this injury is an aggravation of a pre-existing condition?” Dr Potter replied: “No, this is a continuation of progressive osteoarthritis.” Dr Potter then stated:
“Because the injuries took place in the pre-January 2002 legislation then I expect the Table of Disabilities applies rather than the current circumstance.”
Dr Potter then assessed Mr Patience as suffering from a 25% permanent loss of efficient use of his right leg at or above the knee with the date of injury noted as “1994”. He assessed a 20% permanent loss of efficient use of the left leg at or above the knee with the date of injury described as “Date of onset: 2001”. He stated: “There is no injury or apportionment to subsequent events.”
There was no other evidence of relevance to the issue on appeal from either the Appellant or Second Respondent.
THE ARBITRATOR’S FINDINGS AND REASONS
As the Arbitrator rightly noted, there was no dispute that Mr Patience sustained an injury to his right knee on 15 April 1994, and to his left knee on 24 January 2001. In any event, those binding findings had been made in the earlier proceedings in the Commission in 2005.
What was in dispute was, as the Arbitrator put it at [30] was:
“…from which injury or injuries does any incapacity result. There is dispute regarding this issue because the First Respondent [Appellant] is arguing that the injury/ies can be characterised as a disease process and/or that the nature and conditions of employment have caused injury and incapacity.”
The Arbitrator’s findings on this issue are set out at [33] to [36] as follows:
“33.Mr Patience’s evidence, which I accept as it was not challenged…is that he did not experience any problems with his right knee until the incident in 1994 and no problems with his left knee until the 2001 incident. By 1994 he had been a plumber for about 20 years. I agree with the submissions made on behalf of the Second Respondent that had there been a disease process there would have been some evidence of problems with his left knee prior to the incident in 2001 but there is no such evidence.
34.The medical evidence is inconsistent and divergent. Dr Best and Dr Potter are of the opinion that Mr Patience’s nature and conditions of employment played a significant part in the deterioration of his osteoarthritic knees but their view is not supported by Mr Patience’s evidence, who makes no such claim. Although it is clear that his work as a maintenance plumber is heavy in nature, there is no evidence that of itself his work was injuring his knees. Dr Laird comments that Mr Patience has had several minor injuries to both knees during his employment, but this is also not supported by any other evidence before me, in particular Mr Patience’s evidence. Mr Patience makes no such claim. Dr Bentivoglio was of the view that Mr Patience developed significant degenerative osteoarthoses involving the medial compartments of the knees as a result of the initial injuries. He noted Mr Patience’s duties as a plumber were fairly heavy in nature. It was submitted on behalf of the First Respondent that Dr Bentivoglio’s opinion could not be relied upon because he did not see the first arthroscopic procedure report which indicated degenerative changes. I note that this first arthroscopy on the right knee was not undertaken until nine months after the original injury to the right knee and that the degenerative changes were noted to be mild. Given those two facts, it cannot, in my view be regarding[sic] as conclusive evidence of any pre-existing underlying disease process as at the time of the original injury to the right knee. In my view, Dr Bentivoglio’s opinion is compelling and it is also consistent with the evidence of Mr Patience and Dr Laird’s reports over the years, that is, that Mr Patience has increasing degenerative arthritis affecting both his knees and that his knees have become progressively worse as a result of the two frank injuries in 1994 and 2001.
35.Accordingly, I find that Mr Patience suffered significant injuries to his right knee on 15 April 1994 and to his left knee on 24 January 2001 and that over the years he was able to continue carrying out his normal duties as a maintenance plumber until 2008 when the pain from the injuries became too much and he could not continue working as a plumber.
36.I am satisfied that any incapacity for work from which Mr Patience suffers results from the injury to his right knee on 15 April 1004[sic-1994] and to his left knee on 24 January 2001 and I so find.”
THE SUBMISSIONS
The Appellant submits that the medical evidence was indeed “inconsistent and divergent”. In the Appellant’s submission, the Arbitrator erred in accepting the opinion of Dr Bentivoglio since it was based on an incorrect history. That “incorrect history” is said to be the fact that Dr Bentivoglio failed to identify the Grade 3 degenerative changes found by Dr Laird at arthroscopy of both the left and right knees. These findings, the Appellant submits, are clearly longstanding, “…and could not have possibly developed due to the original medial meniscus tears.”
That being said, the Appellant submits that the medical evidence on the whole “…confirms that the worker is suffering from an underlying disease process which is responsible for his incapacity”. Notwithstanding the two frank injuries, the Appellant submits that “…in line with the evidence of Dr Laird and Dr Best, the nature of the worker’s employment has also aggravated the underlying condition.”
In the Appellant’s submission, “… the weight of evidence supports a finding that the worker suffered two frank injuries, in addition to a disease of gradual onset either caused or aggravated by his employment as a plumber, which on the evidence dates back to 1974, some 20 years prior to his first injury.” In these circumstances, it is submitted, it was appropriate for the Arbitrator to find an additional injury, that is, a disease within the meaning of either section 15 or 16 of the 1987 Act and then apportion liability between the two frank injuries and the disease in line with the principles set out in Dimovski.
The Appellant submits that the appropriate apportionment would be 25% to the frank injuries, and 75% to the ‘disease’.
The Appellant has also referred to my decision in Kingi v Australian Portable Buildings PtyLtd [2009] NSWWCCPD 30 (‘Kingi’) in support of its submissions.
By contrast, the Second Respondent submits that the Arbitrator’s findings were consistent with the evidence, in particular, that of Dr Laird. The Second Respondent submits that the findings on initial arthroscopies of both knees demonstrated tears in the medial meniscus of each knee, and that Mr Patience’s knees had continued to deteriorate following the two frank injuries and subsequent treatment in the form of numerous further arthroscopies and debridements. Mr Patience’s evidence was that he never recovered following the initial injuries. The Second Respondent points to the fact that Mr Patience presented his case (notwithstanding his claim in his Application) on the basis of the two frank injuries, and the fact of previous findings made in the 2005 proceedings and the Appellant’ previous payments to Mr Patience. In summary, the Second Respondent submits that the medical and lay evidence simply does not support any finding that employment with the Second Respondent subsequent to 30 June 2007 was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease, and the Arbitrator was correct in rejecting such submissions made by the Appellant.
Mr Patience also submits that the Arbitrator’s determination was correct, even though he had claimed in his Application as against the Appellant that “…constant repetitive movement, squatting, bending, crawling in confined spaces…being the nature and conditions of employment from 1April 1994 to 31 March 2003.” A similar allegation was made as against the Second Respondent from 1 April 2003.
Mr Patience points out that Dr Laird first saw him in January 1995, some nine months after the initial injury to his right knee. On that occasion, “…some grade 3 changes chrondomalacia changes in the medial femoral condyle were noted…” (his emphasis)..He notes that in June 2006 Dr Laird stated “His x-rays showed some minor degenerative changes.”
In Mr Patience’s submission, the injury of 15 April 1994 marked either the commencement of the degenerative condition in his right knee, or a significant aggravation of a pre-existing minor asymptomatic degenerative condition in this knee as was found by Dr Bentivoglio. In that regard, Mr Patience points out that Dr Bentivoglio did indeed have a correct history since he confirms in his report that he had available “…the history provided by this gentleman, x-ray appearances, as well as arthroscopy photos.”
Mr Patience submits that the Appellant’s submission that the Grade 3 changes found by Dr Laird indicated “…significant degenerative changes existing at that time …” is not supported by medical opinion. He says:
“The clear inference from the reports of Dr Laird is that the respective injuries to the right and left knees either initiated the degenerative process, as found by Dr Bentivoglio or significantly aggravated a minor asymptomatic degenerative condition in both knees.”
This proposition, he submits, is supported by Dr Potter. He submits that the weight of medical evidence supports the Arbitrator’s findings at [36] as to the cause of the incapacity.
He concludes:
“The findings of the Arbitrator are consistent with [the Appellant’s] evidence as to the initiation and progress of the conditions in both knees, and consistent with the views of Dr Laird, Dr Bentivoglio and Dr Potter. It is up to the Arbitrator to choose between the views of competing medical specialists where these views differ, and she has done so for the reasons outlined in paragraph 34…”
DISCUSSION AND FINDINGS
As the Second Respondent rightly points out, my task on review, as Spigelman CJ said in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (Chemler) at [30] is to decide:
“…whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits,…what is the true and correct view.”
Was the Arbitrator’s determination wrong and against the weight of evidence as alleged by the Appellant?
Some further consideration of the background of the present proceedings is useful at this point. The chain of events appears to have started when, by letter dated 3 October 2007, Dr Laird sought permission from the Appellant’s insurer, GIO, to perform further arthroscopies on both knees followed by a course of Synvisc injections. An appointment was arranged by the GIO for Mr Patience to consult Dr Bentivoglio on 9 October 2007. In his report of the same date, Dr Bentivoglio stated that he felt it was appropriate for the procedure to be done on the left knee but not the right. He said:
“The reason for stating this is that the last two arthroscopic debridements this gentleman has had done on his right knee have not improved his symptoms. His symptoms at this stage relate to degenerative osteoarthrosis present in his knee region, predominantly involving the medial compartment. This will not respond to an arthroscopic debridement.”
The GIO then wrote to Mr Patience on 26 October 2007 advising of its decision to decline the right knee arthroscopy. Mr Patience then sought a review of that decision, but on 3 December 2007, the GIO again wrote to him confirming the decision to decline the right knee arthroscopy.
What transpired next is not entirely clear, however, it appears that Mr Patience’s solicitors arranged for him to consult Dr Best on 1 April 2008. Dr Best’s report of 3 April 2008 was apparently then sent to the GIO. In that report, Dr Best agreed with the proposed treatment suggested by Dr Laird, which of course had been the only issue in dispute between the GIO and Mr Patience up to that time. He also commented that in his view, the nature and conditions of Mr Patience’s work played a significant part in the deterioration of his knees.
Subsequently, on 30 July 2008 the GIO sent a Notice under section 74 of the 1998 Act to Mr Patience declining liability for two reasons: firstly, that the proposed arthroscopy was not reasonably necessary pursuant to section 60 of the 1987 Act, and secondly, because ”the injury has resulted due to aggravation, acceleration, exacerbation or deterioration of a disease with a subsequent employer, therefore your last employer is liable pursuant to section 16 of the [1987 Act].” It appears that the GIO relied upon the report from Dr Best in support of its decision to decline liability.
Mr Patience ceased work in June 2008, and filed his Application on 17 November 2008.
There is no doubt that there was some divergence of opinion between the medical experts, and indeed some inconsistencies particularly in the reports of Dr Laird. That situation is not of course uncommon in the Commission, particularly where there are multiple parties and/or insurers. The Arbitrator was then faced with the task of deciding between competing expert opinions.
This issue was considered by the Court of Appeal in Wiki v Atlantis Relocation (NSW)Pty Ltd [2004] NSWCA 174 (‘Wiki’) primarily in the context of the judicial obligation to give adequate reasons when deciding as between experts, or for relying on a particular expert opinion. In that case, the only reason the trial judge had given for preferring one medical expert over others was that he regarded him as a persuasive and impressive witness who was the most “eminent” of the experts called. As Ipp JA observed at [60] to [61]:
“60. In some disputes between experts, demeanour will be crucial…
61. But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.”
In the present case, it seems to me that the differences between the medical experts can indeed be resolved by careful examination and analysis of their reports. There is no suggestion by any of the parties that the medical opinions do not conform to the standards set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
It is worth noting at this point the observation of Bryson JA in Wiki that” Admitted passages in pleadings can be a poor basis for decision where causation of some or all alleged sequelae falls to be decided in a contested assessment of damages.”
In his Application, Mr Patience claimed that his incapacity arose as a consequence of both the two frank injuries and the nature and conditions of his employment with both Respondents. However, in both his statements and his oral evidence, he essentially maintained that his knees had never recovered since the initial frank injuries and had progressively deteriorated over time, particularly following the numerous arthroscopies he had. He did not specifically implicate the ‘nature and conditions’ of his employment as causative of his condition, notwithstanding the pleadings.
The Appellant’s submissions focus on the proposition that because there was evidence of some underlying degenerative changes in Mr Patience’s knees found on early investigations, it must of necessity follow that he suffered from a disease process in addition to the frank injuries. There is certainly consensus of medical opinion that Mr Patience has significant osteoarthritis in his knees. The cause of that condition is more debatable. It is true that Dr Best was of the opinion that the nature and conditions of Mr Patience’s employment played a significant part in the deterioration of his osteoarthritic knees. However, contrary to the Arbitrator’s findings, that was not in fact the view of Dr Potter. Dr Potter specifically excluded the nature and conditions of employment as contributory to the condition. The clear inference from his report and particularly his conclusions as to permanent impairment is that Mr Patience’s disabilities and incapacity relate to the two frank injuries described.
Dr Bentivoglio’s opinion was obtained at the request of the Appellant. It seems to me somewhat disingenuous for the Appellant to now complain that Dr Bentivoglio’s opinion as to causation should not be accepted on the basis that he failed to note early degenerative changes in the knees. This can be nothing more than mere speculation by the Appellant since Dr Bentivoglio makes it clear that he had the extensive radiological and arthroscopy reports before him.
Drs Bentivoglio, Potter and Laird (certainly up to May 2005) were all of the view that Mr Patience’s disabilities and incapacity arose solely as a consequence of the two frank injuries. I accept that the report of Dr Laird dated 19 July 2005 is a little more equivocal, but read in context, he does not appear to resile from his earlier opinion in the report of 24 May 2005. I note with interest that the report of 19 July 2005 was also before the Arbitrator in the 2005 proceedings, but notwithstanding Dr Laird’s comments on the nature and extent of the arthritic changes, to an extent in line with Dr Dryson’s view, the Arbitrator found that it was the two frank injuries that were “compensable”.
Having carefully reviewed all the evidence, I am not persuaded that the Appellant has demonstrated any error by the Arbitrator in her acceptance of the opinion of Dr Bentivoglio, supported as it was by Dr Potter and Dr Laird. The weight of both medical and lay evidence supported her conclusions.
I accept that there is certainly some evidence in support of the Appellant’s argument that Mr Patience suffers from a ‘disease’ in the nature of osteoarthritis in both knees, however, the weight of evidence primarily attributes this condition to the two frank injuries and subsequent treatment. That there are degenerative changes present does not necessarily indicate that there is a disease contracted by a gradual process or the aggravation of such a disease (Kelly v Glenrock Pastoral Co Pty Ltd and another (1994) 10 NSWCCR 178 (‘Kelly’). Whether the ‘injury’ consists of an injury simpliciter, or a disease, or the aggravation of a disease is a question of fact to be decided in each case.
Similar facts arose in Villar v Tubemakers of Australia PtyLtd & Ors [2009] NSWWCCPD 57 (‘Villar’). In that case, the worker suffered an injury to his right knee in March 1993. Following arthroscopic surgery in June 1993, the worker resumed heavy physical work with a variety of employers. He claimed that his work with one employer between March and September 1999 aggravated his knee condition and he ceased work. He resumed with a different employer in December 1999, again performing heavy work as a formwork carpenter.( A subsequent injury to his back with a different employer was also included in the claim). The medical evidence in that case for all relevant parties was overwhelmingly to the effect that the initial injury to the right knee was a substantial cause of his condition but that the work performed between March and September 1999 had clearly aggravated his condition. The later employer was found to be liable for weekly payments for a closed period between September 1999 and December 1999. The employer at the time of the initial injury in March 1993 was found liable for medical expenses and any permanent loss of use of the knee, but not liable for weekly payments since the worker had not suffered any economic loss since ceasing with that employer.
I have made reference to this decision to highlight the need to consider each case on its own evidence. The same must be said in relation to Kingi to which the Appellant has referred. The relevance of this decision is not clear: the Appellant merely asserts that it “relies upon” this decision. In that case, the worker suffered a number of injuries to his back in the course of his employment. He was also found to have significant osteoartritis in his hips requiring hip replacements. He claimed that his hip condition arose as a consequence of the nature and conditions of his employment. The Arbitrator found against him in relation to this aspect of his claim. He was successful on appeal since I found that (at [70]):
“,,,there is a consensus of opinion from Drs Mahmood, Collins and Bodel that the work performed aggravated the condition of Mr Kingi’s hips such that his injury ought be considered as being an aggravation of a disease within the meaning of section 16 of the 1987 Act. That evidence satisfies the Makita and Hevi Lift tests for the reasons stated.”
Again, my determination rested upon careful consideration of all the evidence which, in that particular case, supported the worker’s assertions as to the origin of his hip condition.
In the present case, the weight of evidence is against the Appellant’s assertions.
Having come to this conclusion, it is not necessary for me to consider the question of apportionment between the parties. I accept the Appellant’s submissions as to the principles set out in Dimovski, but for the reasons stated, they are not relevant to the appeal.
One further matter I should consider is the Appellant’s submission that the Arbitrator failed to provide sufficient reasons for her decision. Commission Arbitrators have a statutory obligation to provide adequate reasons for a decision. The Commission is not a court and its objectives are to provide a fair and cost effective process for resolution of disputes between parties. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. As Deputy President Fleming said in Sandford’s case, “the content of statements of reasons for decision reflect this process and should not on review be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ (Collector of Customs v Pozzolanic [1993] 43 FCR 287)”. Further, “to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant Employer to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application” (see Y G & G G v Minister for Community Services [2002] NSWCA 247).
Nevertheless, reasons must be capable of unveiling clearly to the parties the grounds upon which a determination was made. As Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247:
“A judge is not required to make a finding in respect of every fact leading to the final conclusion of fact... Nevertheless a judge must distinguish between the essentials and the peripherals... Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted... It is necessary that the essential grounds upon which the decision rests should be articulated”.
In the present case, in my view the Arbitrator’s reasons were adequate in the context of her statutory obligation. Although as I have said she erred in her findings as to the opinion of Dr Potter, that does not assist the Appellant. On the contrary, it simply reinforces the Arbitrator’s ultimate conclusions.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in Chemler ) I am of the view, for the reasons stated, that the decision of the Arbitrator was correct, and consistent with the weight of evidence. While there was some evidence in support of the Appellant’s claims, it was insufficient to disturb the Arbitrator’s findings. Indeed, a contrary result would in my view have been clearly against the totality of the evidence.
DECISION
The decision of the Arbitrator dated 27 February 2009 is confirmed.
COSTS
The Appellant is to pay all parties’ costs of the appeal.
Deborah Moore
Acting Deputy President
17 June 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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