Hunter New England Local Health District v Iles - [2013] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hunter New England Local Health District v Iles [2013] NSWWCCPD 58
APPELLANT:	Hunter New England Local Health District
RESPONDENT:	Robert Iles
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-12843/12
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	6 August 2013
DATE OF APPEAL DECISION:	6 November 2013
SUBJECT MATTER OF DECISION:	Aggravation and acceleration of disease of osteoarthritis; whether employment a substantial contributing factor to the aggravation and acceleration; medical evidence; ss 4(b)(ii) and 9A of the Workers Compensation Act 1987; unmeritorious appeal; obligation of legal practitioners to comply with s 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3 of Appeal Against Decision of Arbitrator
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons Lawyers
Respondent:	Whitelaw McDonald Solicitors
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 6 August 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

Prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 on 27 June 2012, an “injury” was defined to include, among other things, “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration” (s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)). For simplicity, I will refer to this kind of injury as an “aggravation injury”, though the definition (and the evidence in this appeal) also deals with an acceleration, exacerbation or deterioration of a disease.
To be entitled to recover compensation, in addition to proving that he or she has received an aggravation injury, the worker must prove that his or her employment was a substantial contributing factor to that injury (s 9A). Compensation for such an injury is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration (s 16).
This appeal concerns whether the Arbitrator erred in finding that the worker suffered an aggravation injury, namely, the aggravation and acceleration of the disease of osteoarthritis in his knees in the course of his employment and in further finding that his employment was a substantial contributing factor to that injury.

BACKGROUND

The respondent worker, Robert Iles, has worked as an electrician for virtually all his working life. He worked with the appellant employer, Hunter New England Local Health District (the appellant), as an electrician, from about 1997 until February 2010. His duties required him to crawl on roofs, squat, kneel and generally work in awkward conditions that placed great strain on both knees.
Prior to starting work with the appellant, Mr Iles performed similar duties with Hunter District Water Board (the Water Board) from 1966 to 1993. He had surgery on his right knee in 1988 because of possible sepsis. When he left the Water Board his right knee was slightly symptomatic before he started work with the appellant, but both knees became much more symptomatic while working for the appellant. Mr Iles attributed the condition in his knees to the work he did for the appellant.
At some stage, either in the 1980s or 1990s, Mr Iles was diagnosed with gout and prescribed Zyloprim. It is accepted that this condition caused osteoarthritis in Mr Iles’ knees.
In January 2010, Mr Iles injured his right hand, wrist and forearm using pliers in the course of his employment. He was diagnosed with tendonitis and certified unfit for two weeks. On his return to work, his manager noticed that he was walking with a limp and put him off work.
On 15 March 2010, at the request of the insurer, Dr Glass, consultant physician, medically assessed Mr Iles. He took a history that Mr Iles had a long history of intermittent gout for the previous 20 years and had two or three acute episodes per year. This particular episode (in early 2010) settled after a couple of days with Colgout and Naprosyn. Dr Glass also recorded that Mr Iles had a long history of osteoarthritis in his hands and knees, which was unrelated to his work.
On 18 May 2010, the insurer also had Mr Iles assessed by Dr Potter, rheumatologist who diagnosed him to have polyarthritis, which he said was unrelated to his work.
In 2012, Mr Iles brought a claim for weekly compensation, lump sum compensation, and medical expenses on the basis that he suffered a “[d]isease of gradual process being an aggravation, acceleration, exacerbation and deterioration being osteoarthritis of both knees caused by the nature and conditions of employment”.
Notwithstanding that the expression “nature and conditions” is a completely meaningless concept (Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC 19; 11 NSWCCR 656) and the Commission has repeatedly said it is an expression that should not be used (Willoughby City Council vKevric [2009] NSWWCCPD 140 at [7]), the parties conducted the case on the basis that Mr Iles alleged that he suffered an aggravation, acceleration, exacerbation or deterioration of the osteoarthritis in his knees due to the strenuous work he did with the appellant between 1997 and February 2010.
Relying on reports from Drs Potter and Glass the insurer disputed liability on the grounds that Mr Iles had not received an injury arising out of or in the course of his employment and, if he had received an injury, his employment was not a substantial contributing factor to the injury. Though it also disputed incapacity, permanent impairment and Mr Iles’ entitlement to compensation for hospital and medical expenses, the only issues argued before the Arbitrator were whether Mr Iles had received an injury and whether his employment was a substantial contributing factor to that injury.
The matter proceeded to arbitration on 1 August 2013. Neither side sought to call any oral evidence. At the conclusion of submissions, the Arbitrator delivered an extempore decision in which he preferred the expert medical evidence tendered on behalf of Mr Iles and found in his favour. The Commission issued a Certificate of Determination on 6 August 2013 in the following terms.
“1.That the respondent make weekly payments of compensation to the applicant as follows:
a.$1,050.03 a week under s36(1) for the period 17 February 2010 to 18 August 2010;
b.at the rate prescribed under s37(1) for a single worker for the period 19 August 2010 to 26 September 2012.
2.That the respondent pay compensation of $577.25 to the applicant under s60.
3.That the matter be remitted to the Registrar to refer the following medical dispute to an AMS to assess:
a.the degree of permanent impairment of the applicant resulting from an injury deemed under s16 to have happened on 17 February 2010 being an aggravation of osteoarthritis in the right and left knees;
b.whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion.
4.     That the following documents are admitted to the proceedings:
a.      report of Dr Bodel dated 26 June 2013;
b.      report of Dr Potter dated 22 May 2013;
c.      Clinical records of Gloucester Medical Centre;
d.     report of Dr Major dated 5 August 2003.
5.     That the respondent pay the applicant's costs as agreed or assessed.”
The appellant has appealed.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THE ARBITRATOR’S REASONS

The Arbitrator confirmed that the issues in dispute were whether Mr Iles had suffered an injury and whether his employment was a substantial contributing factor to that injury (T28.1).
After reviewing the relevant medical evidence, the Arbitrator said that an injury, in the sense of s 4(b)(ii), can be a worsening of the outward manifestation of a disease (T34.12). In other words, a worsening of the symptoms that the worker experiences. Therefore, if work has contributed to the worsening of the symptoms, as distinct from a worsening of the underlying pathological process, that is an injury for the purpose of s 4(b)(ii) (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch)).
He added (at T34.23) that, to satisfy s 9A of the 1987 Act, work only had to be a substantial contributing factor to the worsening or the aggravation of a disease. If the aggravation of a disease is only modest, then, so long as work was a substantial contributing factor to that modest aggravation, or modest worsening or acceleration, that is an injury under s 4(b)(ii).
The Arbitrator quoted and applied the decision of Neilson DCJ in King v The Commissioner of Police (2004) 2 DDCR 416 (on which the appellant’s counsel relied), where his Honour said (at [60]) that one need only consider whether the employment is a substantial contributing factor to the event that gives rise to the aggravation, acceleration, exacerbation or deterioration of the disease “rather than to the path of the underlying disease itself”.
Dealing with Dr Potter’s evidence (from T34.45), the Arbitrator said that Dr Potter did not discuss the correlation of Mr Iles’ experience of symptoms during the course of his work with the appellant and did not offer an explanation as to how it was that those symptoms were experienced in the way Mr Iles experienced them whilst carrying out his work. Dr Bodel, Mr Iles’ qualified orthopaedic surgeon, did provide an explanation on that issue. When read in context, Dr Bodel said that the heavy nature of the work was a precipitator of Mr Iles’ symptoms.
The Arbitrator added (at T35.25) that he could apply commonsense in evaluating questions of causation and Dr Bodel provided an explanation for his view that Mr Iles’ work aggravated the underlying osteoarthritis. The explanation was that, knowing the work Mr Iles was doing, and the fact that Mr Iles experienced symptoms in his knees while doing that work, it was the heavy nature of that work that resulted in the aggravation of the illness. That accorded with commonsense and correlated with the histories other doctors had taken, namely, Dr Hyde-Page and Dr Price.
Given that he preferred Dr Bodel’s evidence over that of Dr Potter, the Arbitrator concluded that it was more likely than not that it was Mr Iles’ work (with the appellant) that aggravated the osteoarthritis in his knee(s).

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Iles’ employment with the appellant was a contributing factor to his injury in accordance with s 4(b)(ii) of the 1987 Act;
(b) failing to give consideration to the provisions of subsections (d) and (e) of s 9A(2) of the 1987 Act in finding that Mr Iles’ employment with the appellant was a substantial contributing factor to the aggravation of a disease;
(c)     failing to prefer the opinion of Dr Potter, or give proper weight to his opinion, as to the cause of Mr Iles’ disease and symptomology, over the opinions relied upon by Mr Iles;
(d)     finding that Mr Iles sustained an injury to his knees in the course of his employment with the appellant;
(e)     finding the appellant liable to pay Mr Iles weekly payments of compensation between 17 February 2010 and 26 September 2012;
(f)      finding the appellant liable to pay Mr Iles compensation pursuant to s 60 of the 1987 Act, and
(g)     ordering the appellant to pay Mr Iles’ costs.

THE EVIDENCE

Mr Iles’s evidence was essentially as summarised above and will not be repeated.
On 12 May 2010, at the request of the appellant, Mr Iles saw Dr Price, an occupational physician. Dr Price took a history that Mr Iles was diagnosed with gout in 1997 and prescribed Zyloprim. He added that Mr Iles’ knees became more painful in around 2000. On seeing a rheumatologist at that time, Mr Iles was diagnosed with osteoarthritis in his knees. In early 2009, Mr Iles found difficulty squatting and getting into manholes in the course of his duties. He also had difficulty bending his legs and working in confined spaces.
Dr Price said that Mr Iles had severe osteoarthritis in both knees. He also had gout, which, at the time of his examination, seemed to be a “minor factor” and was partially controlled by medication. He was not fit for duties without restriction and it was unlikely he would be able to return to his usual duties but could do selected duties with restrictions.
On 18 May 2010, Dr Potter examined Mr Iles. In his undated report, prepared after that examination, Dr Potter stated, among other things:
(a)     Mr Iles had obvious clinical evidence of tophaceous gout for more than ten years;
(b)     there had been a recent attack (of gout) in the right and left hands, with clinical recovery;
(c)     the long term consequences of undertreated or poorly treated tophaceous gout are “the almost inevitable consequence of secondary osteoarthritis”;
(d)     Mr Iles has advanced arthritis in both knees;
(e)     the “probable and dominant causative factor was the gout, but there have been other factors”;
(f)      he obtained “no history of injury in the workplace of [sic, to] the knees”, and
(g)     he had no evidence that the workplace has been a significant contributing factor to Mr Iles’ pathology, even though the pathology is rather obvious.
In answer to the question of whether work was a substantial contributing factor, Dr Potter said:
“On the date seen by me, 18/5/2010, no. This man has a polyarthritis as a consequence of his underlying rheumatic disease. Any work aggravation was brief, minor and temporary.”
In answer to the question of whether the injury could have occurred as stated, Dr Potter said:
“There may have been temporarily and briefly, traumatic aggravation to the right hand gout. This has now settled. I have no evidence of aggravation to the knees in the context of the workplace.”
Mr Iles saw Dr Hyde-Page, orthopaedic surgeon, for treatment of his osteoarthritis in about July 2010. In a report to Mr Iles’ solicitor dated 23 August 2010, Dr Hyde-Page took a history that, at the time, Zyloprim was controlling Mr Iles’ gout completely. While Dr Hyde-Page initially concluded that the onset of Mr Iles’ osteoarthritis was directly related to his work activities and not his gout, he later stated that the gout was a significant contributing factor to the onset of Mr Iles’ osteoarthritis in his knees.
In the light of this evidence, the parties agreed at the arbitration, and it is not disputed on appeal, that gout caused Mr Iles’ osteoarthritis. The issue before the Arbitrator was whether Mr Iles suffered an aggravation injury with the appellant and whether his employment was a substantial contributing factor to that injury.
In support of his case, Mr Iles relied on evidence from Dr Bodel. In his first report, dated 19 April 2012, Dr Bodel took a history of Mr Iles’ duties. In answer to a question about the relationship between Mr Iles’ disabilities and his employment with the appellant, Dr Bodel said:
“This gentleman’s ongoing disabilities are due to his arthritic process which is primarily due to the gout but work is an aggravating factor.
That aggravation is ongoing.”
After conceding that the osteoarthritis was caused by the gout, Dr Bodel dealt with whether Mr Iles’ employment with the appellant was a substantial contributing factor to the aggravation of the underlying osteoarthritis as follows:
“The nature and conditions of this gentleman’s employment initially at the Hunter Water Corporation and subsequently at the [appellant] are a substantial contributing factor to ongoing complaints in the knees.”
Dr Bodel added that “gout and the associated arthritis is a disease process of gradual onset”.
In his second report, dated 10 September 2012, Dr Bodel said:
“The nature and conditions of his work over many years and the defined events that have occurred over the years are a substantial contributing factor by way of aggravation acceleration exacerbation and deterioration of that disease process of gradual onset being the gout. That is to say that the nature and conditions of work in general over time has caused the gout process to be worse than it would have otherwise been had it not been for work. It is a substantial contributing factor by way of aggravation acceleration exacerbation and deterioration.
There are no historical references to any specific event but rather the nature and conditions of work in general. As I understand it he has worked with Hunter Water Corporation from January 1966 until March 1993 and did require a lot of kneeling squatting or climbing as he worked as an electrician. The work has deteriorated the arthritic process which has arisen as a consequence of the gout and the aggravation is ongoing.
…
As I understand it the Act has four descriptions of how the pathological process can change. Aggravation is not the only one and in this circumstance I would be more focusing on the acceleration of the nature [sic] process of gout/arthritis as a consequence of the nature and conditions of his work in general and the acceleration of the disease process over time and the inevitable deterioration caused by the nature of work in general.
The state of this gentleman’s knees would not have reached this level of degeneration at this point in time (age 62 years) had it not been for the nature and conditions of his work over the years as described.”
In a report dated 22 May 2013, Dr Potter responded to a request (not in evidence) from the appellant’s solicitor for a supplementary report. He said:
“In this circumstance always data, journals, reference and literature review becomes the core of the data required to apply to the individual case.”

He said that Mr Iles brought no data at the examination on 18 May 2010. Mr Iles’ pathology “of course was the complications of gout”. The doctor added:
“Tophaceous gout in that degree implies significant lack of compliance with therapy is the most likely component to his final outcome. This man has widespread gout, either poorly treated or undertreated and therefore this gave rise to complications. Again, I remind you he brought along no investigations and no data, which is not helpful.”
Dr Potter said that Mr Iles gave “no history of trauma at the work site to his knees”, but he recalled his knees being sore and inflamed as part of his gout. His most recent attack was in the right hand.
It followed, Dr Potter said, that because of advancing gout, particularly in his knees, Mr Iles was “not safe to do all the jobs required of an electrician”. His polyarthritis was a consequence of his underlying disease. He obtained no history of injury causing advancing arthritis in Mr Iles’ joints or his knees.
Dr Potter referred to having provided the solicitor with articles on gout, gout diagnosis, gout management and the primary and secondary causes of osteoarthritis in the knees. (Those articles are not in evidence.) He added, “[w]e have to be sure there is no doubt about the problem being gout and gout as the causation of his diagnosis and arthritis and incapacity”. And that “[t]his man therefore has had the consequence of gout but more importantly, the consequence of gout being suboptimal in management, hence progressive”.

Dr Potter noted the possible sepsis in the right knee in 1988, but said it was more likely than not there was an attack of gout in the knee at that time. He set out other evidence that confirmed the presence of gout on several occasions since 1996.
Dealing with Dr Bodel’s reports, Dr Potter said Dr Bodel “did not have a history of any injury to the knees”. He added that Dr Bodel “surmises that work is the aggravating factor” but provided “no data in that context”. Therefore, Dr Bodel’s “speculation” was without any substance. Dr Potter repeated that Mr Iles has advancing arthritis in both knees and the “cause relates to gout and gout alone” and that there was no “evidence from the data that there was any injury to the knees, precise date or otherwise”.
Dr Potter that there was no data to support Dr Bodel’s “suggestion that the nature and conditions of work were [sic] any permanent aggravation or a substantial contributing factor to the final incapacity”. He said Dr Bodel’s “speculation” that Mr Iles has post-traumatic arthritis was “without substance” and there was “no data” to support that speculation. He added, Dr Bodel “confuses absence of data on work history contributing as opposed to gout being contributing”.
Dr Potter concluded that he obtained no history of a particular injury in the workplace and that he was “unconvinced that [Mr Iles’] nature of work so described to me caused him any material significant aggravation”.
In a report dated 26 June 2013, Dr Bodel responded to Dr Potter’s further evidence. He acknowledged, based on the clinical notes from Mr Iles’ local doctor, that Mr Iles had been treated for gout from 2001 and had been prescribed anti-inflammatories since August 2000. He also accepted Dr Potter’s statement that there was no real history of injury and added:
“The nature and conditions of his work however at these workplaces has been fairly heavy and I still contend that that is the cause of an aggravation of an underlying disease process of gradual onset which is not work related. The aggravation, however, is work related.
Dr Potter indicates that there is no ‘data’ to confirm aggravation.
In a medical sense he is correct. As I would understand the ‘definition’ of injury in this circumstances however, the Workers Compensation Act defines ‘injury’ in three broad definitions.
[The doctor then set out part of the definition of injury in s 4 of the 1987 Act.]
As I would interpret that definition in terms of the language used, the nature and conditions of this gentleman’s work because of the heavy nature of the work can cause aggravation, acceleration, exacerbation and deterioration and because he is now 62 and has quite advanced arthritic change, it is logical that he has probably reached a more advanced stage of arthritic process at this point in time than would otherwise have been the case, had it not been for that type of work.
The prime pathology here (which is not the injury) is the underlying tophaceous gout. The contribution from work is important and initially it only needed to be a contributing factor, than a substantial contributing factor and now the main contributing factor. I would still contend that the nature and conditions of work is the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of [the] disease of gradual onset in this circumstance.
This is really not a description of the pathology but the medical interpretation which appears to be appropriate in light of the definition of injury contained within the Act.” (emphasis included in original)

SUBMISSIONS

Counsel for the appellant, Simon Hunt, who also appeared for the appellant at the arbitration, submitted that the appellant’s “primary position” was and is that Mr Iles’ disease, and any increase in symptomology, was not in any way causally related to his employment with the appellant and that the opinion of Dr Potter should have been preferred over the opinions of the doctors called by Mr Iles. In support of this submission, he made the following points:
(a)     Dr Potter said that the natural course of uncontrolled or poorly controlled gout was secondary osteoarthritis in both knees;
(b)     osteoarthritis is progressive by its own nature;
(c)     Dr Potter said that the degree of gout suffered by Mr Iles indicated significant lack of compliance with therapy and that it was poorly treated or undertreated, and therefore gave rise to the complications from which he suffered;
(d)     Dr Bodel did not give any consideration to the issue of what the natural progression of Mr Iles’ uncontrolled, or poorly controlled, gout would have been irrespective of his employment;
(e)     a consideration of the degree of disease and symptomology from which Mr Iles would have suffered as a result of his gout and osteoarthritis, irrespective of his employment with the appellant, is necessary in order to understand whether there has been an aggravation of the osteoarthritis or the symptomology to which Mr Iles’ employment was either a contributing factor, or a substantial contributing factor;
(f)      the only expert who considered the long term effects of the natural progression of the underlying disease was Dr Potter and, for that reason, his opinion should have been preferred;
(g) in considering whether Mr Iles’ duties with the appellant were a substantial contributing factor to the aggravation of his underlying degenerative disease, the Arbitrator focused only on the issue of whether Mr Iles experienced an increase in symptomology while performing those duties and did not consider the “natural path of the underlying condition, consistent with his obligation to consider ss 9A(2)(d) and (e) factors”.
With respect to s 9A(2), Mr Hunt submitted that decisions such as Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi) and Cook v Midpart Pty Ltd t/as McDonalds Forster [2008] NSWCA 151; 6 DDCR 316 (Cook) show that the consideration of the s 9A(2) factors apply equally to causation in the sense of the location where an injury occurred and whether the duties being performed by the worker were sufficiently connected to the injured worker’s employment to give rise to liability under the 1987 Act, “and causation in the sense of a balancing/consideration of the medical factors contributing to the occurrence of the injury”.
He argued that s 9A “provides a mechanism whereby injuries which occurred coincidentally with the performance of employment duties, rather than having been substantially contributed to by those duties, may be excluded from giving rise to a liability under the WCA”.
He conceded that, while the application of s 9A did not limit the Arbitrator to a consideration of only that proportion of Mr Iles’ disease which was attributable to the aggravation, it was still incumbent upon him to consider what would have been the natural course of the disease, irrespective of any aggravation caused by his employment with the appellant, in order to satisfy s 9A(2)(d) and (e).

DISCUSSION AND FINDINGS

The above submissions are fundamentally wrong.
In determining if a worker has suffered an aggravation injury, it is necessary to ask the following questions:
(a)     is the worker suffering from a disease?
(b)     if so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     if so, was the employment a contributing factor?
(d)     if so, was employment a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration?
In the present case, it is accepted that Mr Iles suffers from osteoarthritis in his knees and that that condition is a disease.
On the question of whether Mr Iles’ employment with the appellant was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of osteoarthritis, the parties called conflicting evidence. For reasons given, which have not been challenged, the Arbitrator accepted the evidence of Dr Bodel. It was open to him to do so.
As the Arbitrator noted, Semlitch establishes that there is an aggravation of a disease if the work has made it “worse in the sense of more grave, more grievous or more serious in its effects upon the patient” (Windeyer J at 639). His Honour had previously observed (at 637) that he found “it impossible to conceive of the malady as distinct from its manifestations”.
In Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88 (Cant) these statements have been accepted to mean that:
“irrespective of whether the [underlying] pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
The Arbitrator correctly applied Semlitch and Cant and determined that Mr Iles’ work contributed to a worsening of the symptoms in his knees and that he had therefore suffered an aggravation injury. (In fact, the evidence went further and also supported a finding that the work also accelerated the disease, and caused a deterioration.) The evidence from Dr Bodel strongly supported that conclusion and nothing in Mr Hunt’s submissions has pointed to any error by the Arbitrator on this point. It is not sufficient (to establish error) to merely assert that Dr Potter’s opinion should have been preferred.
Dr Bodel had a full history of Mr Iles’ work, which required kneeling, squatting and climbing, and a full history of the development of his symptoms. He agreed that the osteoarthritis had been caused by the gout, but remained firmly of the view that Mr Iles’ work over many years not only aggravated his condition but also accelerated the “process of gout/arthritis” and caused a deterioration in the condition of his knees. Moreover, he felt that Mr Iles’ knees would not have reached “this level of degeneration at this point in time” had it not been for work he performed over many years. That work included the work with the appellant.
The Arbitrator was right to reject Dr Potter’s opinion. Not only did Dr Potter not discuss the correlation of Mr Iles’ experience of symptoms during the course of his work with the appellant, he wrongly focused on whether there was a history of “injury causing advancing arthritis”. His use of the word “injury” and his later reference to there being “no history of trauma … to [Mr Iles’] knees” indicates that he considered it necessary for Mr Iles to have sustained some specific trauma before he could succeed. That was incorrect. An aggravation injury can and, in many cases, will be caused over time by repeated stress (Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 at [61], 5 DDCR 247). Dr Potter’s failure to properly acknowledge that fact further undermines his evidence.
While Dr Potter’s statement that Dr Bodel provided “no data” to support his conclusion may have had some medical basis, as Dr Bodel conceded, it was legally incorrect. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (per Beazley JA (Giles and Tobias JJA agreeing) Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [85]; 8 DDCR 399). Dr Bodel’s evidence complied with those principles. It was not speculative, as Dr Potter asserted, but was the doctor’s opinion based on the history, examination and the documents provided to him.
Dr Potter’s contention in his second report that Mr Iles has advancing arthritis that “related to gout and gout alone” completely ignored the effect of the strenuous work Mr Iles did with the appellant for many years and was untenable. It was also inconsistent with his opinion in his first report where he said that the “probable and dominant causative factor was the gout, but there have been other factors” (emphasis added). He did not explain that inconsistency.
Dr Potter also appears to have applied the wrong test of causation. He said that the “probable and dominant causative factor was the gout”. The test in s 4(b)(ii) is whether employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. If that test is satisfied, injury is established, but no compensation is payable in respect of the injury unless the employment concerned was a substantial contributing factor to the injury (s 9A).
It follows that the Arbitrator did not err in accepting Dr Bodel’s evidence in preference to the evidence from Dr Potter.
Turning to whether Mr Iles’ employment was a substantial contributing factor to the injury, Mr Hunt’s submissions are contrary to appellate authority and wrong.
Mr Iles does not have to establish that his employment was a substantial contributing factor to the underlying disease process. In Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 (Shillingsworth), the Court of Appeal, Einstein J (Hodgson and Santow JJA agreeing), considered a similar argument to that advanced by Mr Hunt.
In that case, the worker suffered a cerebral haemorrhage in the course of his employment as a cotton chipper. One of the issues was whether the employment had been a substantial contributing factor to the injury. The employer argued on appeal that, for the purpose of s 4(b)(ii), the statutory test in s 9A is only satisfied if there has been a substantial contributing factor to a “fully blown injury”. In rejecting that submission, Einstein J said, at [64]:
“His Honour approached the question of construction upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this approach. The fact that the work-caused dehydration was sufficient to ‘tip the balance’ and was on the evidence, found to satisfy the requirement that it be shown that the employment concerned was a substantial contributing factor to the injury.”
His Honour added (at [65]) that the issue was one of fact and “there were clearly facts proved which formed a reasonable basis for the definite conclusion affirmatively drawn [and of the truth of which the trial judge could reasonably be satisfied] justifying the finding that the employment concerned was a substantial contributing factor to the injury”. Noting Dr Bodel’s evidence, the same comment applies in the present case.
Nothing in Cook or Badawi undermines these statements of principle in Shillingsworth. In Cook, Allsop P (as his Honour then was) observed that, in the passage quoted at [66] above, Einstein J “was making the point that s 4(b)(ii) was concerned with the aggravation of the disease and not the effect of the original non-aggravated disease”.
Allsop P concluded that the Deputy President against whom the appeal had been lodged in Cook was unable to conclude, as a matter of fact, that the relevant employment was a substantial contributing factor to the assumed second injury (which was alleged to be an aggravation of arthritis). That factual conclusion was open on the evidence called and there was no legal error by the Deputy President.
Badawi did not concern the disease provisions, but considered whether employment was a substantial contributing factor to an injury received while the worker was skiing while on a business trip at Perisher. Mr Hunt did not refer to any specific passage in either Cook or Badawi that he said supported his submissions. That was not surprising: neither case supports his argument. When the Arbitrator (at T21.46) asked Mr Hunt for authority in support of his position, he provided none but said “[h]e [Dr Bodel] has to consider what the experience would have been in any event”.
In determining whether Mr Iles had received a compensable injury, Dr Bodel had to consider: whether there was an injury within the terms of s 4(b)(ii) and, if so, was employment a substantial contributing factor to that injury. Dr Bodel considered those questions and, noting the relevant legislation, answered yes to both. Indeed, he went further and said that Mr Iles’ employment was the main contributing factor “to the aggravation, acceleration, exacerbation and deterioration of [the] disease of gradual onset in this circumstance”. While Dr Bodel was entitled to express those opinions the ultimate determination of these issues was for the Commission.
That the disease of osteoarthritis, in a person with uncontrolled gout, may progress without the stress of further work was not disputed. However, the issue before the Arbitrator was whether Mr Iles’ employment was a substantial contributing factor to the aggravation injury. The evidence comfortably established that it was. Moreover, in an aggravation injury case, it is doubtful it is necessary to deal specifically with s 9A(2)(d) and (e). That is because the injury is the aggravation (or acceleration) of the disease and, if employment caused that aggravation (or acceleration), as it did in this case, it is the cause of the injury and s 9A is satisfied. In other words, without the employment, Mr Iles would not have suffered the aggravation injury, though he would still have suffered the underlying condition.
In any event, the submission that Dr Bodel did not consider what the natural progression of Mr Iles’ uncontrolled, or poorly controlled, gout would have been irrespective of his employment, was incorrect. Dr Bodel’s statement that Mr Iles’ knees would not have reached “this level of degeneration at this point in time” had it not been for his work, was a clear and unequivocal statement that dealt with s 9A(2)(d) and (e) in a manner that supported Mr Iles.
Mr Hunt’s submission that s 9A provides a mechanism whereby “injuries which occurred coincidentally” with the performance of employment duties, rather than having been substantially contributed to by those duties, may be excluded from giving rise to liability under the 1987 Act, was wrong. It was based on the false premise that the pre-existing osteoarthritis in Mr Iles’ knees was an injury that occurred coincidentally with the performance of his duties. The osteoarthritis was not the injury and it was not Mr Iles’ case that his work caused the osteoarthritis. His case was that the work aggravated and/or accelerated that condition and caused it to deteriorate, thus causing an aggravation injury under s 4(b)(ii). Dr Bodel provided compelling support for that case.
It was not necessary for the Arbitrator to consider the natural progression of the disease. As explained in Shillingsworth, he had to consider if employment was a substantial contributing factor to the aggravation injury. Based on an acceptance of Dr Bodel’s evidence, he was satisfied that it was. It does not matter that part of Mr Iles’ current condition may also have resulted (in part) from his pre-existing condition. Dr Bodel’s evidence comfortably established that Mr Iles’ employment with the appellant was a substantial contributing factor to the worsening of the symptoms of the disease of osteoarthritis in his knees and that the effect of that worsening was continuing. Thus, s 9A was satisfied.
The Arbitrator considered the parties’ submissions and the evidence tendered, and accepted Dr Bodel’s evidence. That conclusion was open to him and involved no error. Rather than pointing to any error by the Arbitrator, Mr Hunt has essentially attempted to run the appeal as a rehearing, arguing that Dr Potter’s evidence should be preferred. Notwithstanding that that was not open, I have considered his arguments and, for the reasons given, I reject them.
Mr Hunt made no submissions on grounds (e), (f) and (g) and I do not intend to deal with them. It follows that, as “injury” and “substantial contributing factor” were the only issues argued before the Arbitrator and on appeal, and as Mr Iles has succeeded on those issues, he is entitled to the awards entered in his favour.

CONCLUSION

This appeal was completely misconceived and demonstrated a fundamental lack of understanding of the basic principals involved in s 4(b)(ii) cases. It was completely without merit and had no prospect of success. It should not have been filed. There was no basis for the certification signed by the appellant’s solicitor under s 352(7A) of the 1998 Act in Part 3 of the Appeal Against Decision of Arbitrator.
Practitioners are reminded that the provision of legal services by a legal practice in an appeal without reasonable prospects of success is capable of amounting to unsatisfactory professional conduct or professional misconduct by a legal practitioner (s 345 of the Legal Profession Act 2004; Beale v Walgett District Hospital [2009] NSWWCCPD 60).

DECISION

The Arbitrator’s determination of 6 August 2013 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

6 November 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE