Hunter New England Local Health District v Pond
[2016] NSWWCCPD 28
•27 May 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Hunter New England Local Health District v Pond [2016] NSWWCCPD 28 | |
| APPELLANT: | Hunter New England Local Health District | |
| RESPONDENT: | Janice Pond | |
| INSURER: | QBE Insurance (Australia) Ltd TMF | |
| FILE NUMBER: | A1-5780/15 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 2 February 2016 | |
| DATE OF HEARING: | 24 May 2016 | |
| DATE OF APPEAL DECISION: | 27 May 2016 | |
| SUBJECT MATTER OF DECISION: | Interlocutory decision; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; forensic medical reports, application of cl 49 of the Workers Compensation Regulation 2010 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | Oral | |
| REPRESENTATION: | Appellant: | Mr Hooke SC and Mr Halligan, instructed by Hicksons Lawyers |
| Respondent: | Mr McMahon, instructed by Shine Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 2 February 2016 is revoked and the matter is remitted to a different Arbitrator for re-determination. | |
INTRODUCTION
The appellant employer has appealed an Arbitrator’s finding that the worker suffered a condition known as transverse myelitis, after being inoculated with a fluvax vaccine. It is accepted that the inoculation occurred in the course of her employment as a nurse.
The appellant employer claims that the Arbitrator erred by taking into consideration evidence that had been excluded as being in breach of cl 49 of the Workers Compensation Regulation 2010 (the 2010 Regulation). For the reasons explained below the appeal is successful.
BACKGROUND
Ms Pond, the respondent worker, was employed by the appellant as a registered nurse.
On 16 October 2009 and 10 May 2010, Ms Pond was injected with the H1N1 fluvax vaccinations. The vaccinations were administered by the staff health unit at the John Hunter Hospital. There is no dispute that Ms Pond was in the course of her employment at the time she received the vaccinations.
On 22 June 2010, Ms Pond suffered the onset of severe symptoms that caused her to feel weakness in her legs and unsteadiness on her feet. Ms Pond claims that as a result of the vaccinations she suffered from an injury to her spinal cord causing permanent impairment below the waist. The condition has been diagnosed as sensory ataxia due to transverse myelitis. Ms Pond continued working on modified duties until November 2012 when she ceased work.
Liability was initially accepted by the appellant’s insurer, QBE Insurance (Australia) Ltd (QBE). However, between 13 June 2014 and 6 July 2015, QBE issued a series of notices under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for further benefits.
QBE denied that Ms Pond suffered from transverse myelitis and denied any connection between Ms Pond’s condition and the vaccinations she received in the course of her employment on 16 October 2009 and 10 May 2010. The s 74 notices describe, in considerable detail, the medical evidence upon which those decisions were based.
On 8 October 2015, Ms Pond filed an Application to Resolve a Dispute in the Commission (the Application). On 13 January 2016 an Amended Application to Resolve a Dispute was lodged. Ms Pond claimed weekly compensation from 25 July 2014 and medical and hospital expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). Ms Pond stated that she suffered “[i]njury to the spinal cord causing impairment below the waist. [Ms Pond] has been diagnosed as suffering from sensory ataxia due to Transverse Myelitis; that is, inflammation and damage to the myelin sheath of the spinal cord at the thoracic level…” Ms Pond claimed that the injury was due to the injection of H1N1 flu vaccinations on 16 October 2009 and June (sic, May) 2010.
On 10 November 2015, by an Application to Admit Late Documents, the appellant filed a Reply to the Application. The appellant denied liability for the reasons stated in its s 74 notices.
On 20 January 2016, a conciliation and arbitration hearing was held before a Commission Arbitrator in Newcastle. No oral evidence was called. The proceedings took a somewhat unorthodox course in that the parties sought to have the Arbitrator determine the dispute concerning injury and causation but did not seek final relief. The parties agreed that following a determination of the liability issues it was unlikely that there would be any dispute concerning Ms Pond’s entitlements to compensation.
Also on 20 January 2016, the Arbitrator delivered an extempore decision in which he found in favour of Ms Pond. For the reasons explained below, the Arbitrator found on the balance of probabilities that Ms Pond suffered transverse myelitis due to the administration of the H1N1 vaccination on 10 May 2010.
On 2 February 2016, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. I amend the documentation herein to describe the respondent as ‘Hunter New England Local Health District’.
2. On the application of the parties this determination is limited to the question of causation.
3. For the reasons given in my ExTempore orders I am satisfied that the applicant was injured by the administration of the H1 M1 [sic, H1N1] influenza vaccination on 10 May 2010.
4. By consent the matter is discontinued and I dispense with the necessity for the applicant to lodge a Notice of Discontinuance.
5. I grant leave to the applicant to restore the matter on seven days’ notice to the respondent.
Note:
i) I note the agreement between the parties that upon the determination of the causation question they are confident that matters of domestic assistance and house and vehicle alterations along with other s 60 expenses can be negotiated.
ii) I note also that the parties are confident that the question of weekly compensation can be resolved amicably.
iii) I note that the issues raised in this matter were complex involving arcane and difficult areas of neurology.”
On 5 February 2016, the Certificate of Determination was amended by deleting order four and inserting: “The claims for weekly payments and s 60 expenses are discontinued and I dispense with the necessity for the applicant to lodge a Notice of Discontinuance.”
The appellant appealed the Arbitrator’s determination.
PRELIMINARY MATTERS
Threshold requirements
There is no dispute that the threshold requirements of s 352(3) and (4) of the 1998 Act are satisfied.
Interlocutory
The Arbitrator was required to determine the dispute between the parties in relation to whether Ms Pond’s injuries arose out of or in the course of her employment. This necessitated the Arbitrator reaching a conclusion in relation to Ms Pond’s alleged injury and whether it was caused by the injection of the H1N1 influenza vaccine on 10 May 2010.
The parties acknowledged that once that matter was determined it was unlikely that there would be any further dispute in relation to Ms Pond’s entitlements. It was on that basis that, having determined the injury and causation issues, the Arbitrator noted that the matter was discontinued by consent.
I accept the appellant’s submission that the decision challenged on appeal is strictly interlocutory. The Arbitrator’s decision was limited to a determination of issues of injury, causation and employment as a material contributing factor. It follows that the decision does not finally dispose of the rights of the parties: Licul v Corney[1976] HCA 6; 180 CLR 213.
Pursuant to s 352(3A) of the 1998 Act, there is no appeal from an interlocutory decision except with the leave of the Commission. Section 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant submits that the decision from which leave to appeal is brought was, in reality, a separate determination of the issues of injury, causation and employment as a material contributing factor. It submits that in accordance with the usual practice of appellate courts in relation to such matters, leave to appeal should be granted where the decision appealed from, and the appeal, effectively determine the proceedings, although interlocutory.
The respondent did not make any submissions.
I accept the appellant’s submissions. If the appeal is upheld the proceedings will be finally determined. Given the unconventional way in which the matter was dealt with before the Arbitrator, if leave were to be refused, it would effectively leave the appellant without any further remedy. In the circumstances, it is appropriate for the proper and effective determination of the dispute that leave to appeal be granted. I so order.
THE EVIDENCE
The evidence revealed that about six weeks after Ms Pond’s vaccination, on 10 May 2010, she began to experience a range of neurological and other symptoms. Those symptoms included painful legs, a weakness in the legs and feet, tingling in the lower feet, spasm, fatigue and bowel and bladder impairment.
Between June 2010 and November 2012, Ms Pond underwent a series of assessments including an examination of her cerebral spinal fluid, CT scans of the brain, nerve conduction studies, MRIs of the thoracic and lumbar spine and an MRI of the brain. No abnormality consistent with the diagnosis of a neurological condition known as transverse myelitis was detected on any of those tests.
However Ms Pond claimed that epidemiological evidence suggested a link between the administration of the H1N1 vaccine and transverse myelitis. That diagnosis was initially accepted by her treating clinicians, including her general practitioner Dr Bilkey, Dr Katekar, a neurologist, and Dr O’Sullivan, neurologist retained by QBE.
Dr Katekar considered that the pattern of symptoms was consistent with a spinal cord impairment which he later diagnosed as transverse myelitis. Dr Katekar accepted that there was medical literature which acknowledged a possible association between H1N1 vaccination and transverse myelitis.
Dr O’Sullivan’s initial assessment was that Ms Pond suffered a spinal cord lesion that was causally related to the H1N1 vaccination.
Dr Bilkey referred Ms Pond to Dr Ferch, neurosurgeon and spinal surgeon. Having examined Ms Pond, he recorded that he “could detect no evidence of myelopathy”. He could not identify the cause of Ms Pond’s lower limb symptoms and referred her for radiological investigation.
The appellant relied on Professor Pollard’s evidence. Professor Pollard is a neurologist and an acknowledged expert in monitoring adverse consequences following the H1N1 vaccination, including the incidence of transverse myelitis. At the request of the Therapeutic Goods Administration, Professor Pollard was a member of a panel of experts responsible for establishing the diagnostic criteria for the diagnosis of transverse myelitis. The agreed criteria established three levels of diagnostic certainty depending on the presence of:
(a) fever (temperature equal to or over 38 degrees C);
(b) cerebrospinal fluid pleocytosis (more than 15 white blood cells per cubic millimetre), and
(c) neuro imaging findings demonstrating acute inflammation or demyelination of the spinal cord.
In the absence of satisfaction of any of the levels of diagnostic certainty, Professor Pollard considered it unlikely that there was a causal connection between the vaccination and Ms Pond’s condition.
Having regard to Professor Pollard’s evidence and the absence of any evidence of abnormality in any of the examination results that would be consistent with a diagnosis of transverse myelitis, Dr O’Sullivan and Dr Katekar reconsidered their earlier expressed views. Dr O’Sullivan revised his opinion, stating that, Ms Pond did not suffer and had never suffered from transverse myelitis. Dr Katekar agreed that the diagnostic criteria for a diagnosis of transverse myelitis had not been satisfied, however he still “wondered” about an underlying inflammatory disorder.
Ms Pond relied on the evidence of Dr Mellick, neurologist. Dr Mellick considered that the most likely diagnosis of Ms Pond’s condition was transverse myelitis which was causally related to the administration of the H1N1 vaccination. Notwithstanding the absence of any demonstrated objective evidence consistent with a diagnosis of transverse myelitis, Dr Mellick was of the opinion that transverse myelitis was on the balance of probabilities, the most likely diagnosis. This was based on his clinical assessment, which was consistent with the initial findings of Drs O’Sullivan and Katekar, and having regard to the temporal connection between the injection and the onset of symptoms.
THE PROCEEDINGS BEFORE THE ARBITRATOR
The exclusion of Dr O’Sullivan’s opinion
At the hearing before the Arbitrator an issue was raised concerning Dr O’Sullivan’s evidence and whether admission of such evidence breached cl 49 of the 2010 Regulation. Clause 49 provides:
“In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.”
A forensic medical report is defined in cl 49(4) as a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute.
Counsel for Ms Pond, Mr McMahon, sought to rely on Dr Mellick as its one forensic medical expert. Mr Halligan, counsel who appeared for the respondent employer relied on Professor Pollard as its one forensic medical expert.
However, Mr McMahon also sought to rely on aspects of Dr O’Sullivan’s evidence. Dr Mellick relied on Dr O’Sullivan’s reports in terms of the history and examination findings, to reinforce his own conclusions. Therefore, Mr McMahon sought to have Dr O’Sullivan’s reports admitted into evidence for that limited purpose. Mr McMahon did not seek to rely on Dr O’Sullivan’s opinion. He submitted that the admission of the evidence for that limited purpose did not infringe cl 49.
The Arbitrator accepted Mr McMahon’s submission and ordered (at T11.29) that Dr O’Sullivan’s reports be admitted for that limited purpose.
The issues before the Arbitrator
The issues before the Arbitrator included whether:
(a) Ms Pond in fact suffered from transverse myelitis, and
(b) whether Ms Pond’s condition was causally related to the H1N1 vaccination.
The Arbitrator’s determination
The Arbitrator noted that Dr O’Sullivan initially accepted that it is well recognised that vaccinations such as that given to Ms Pond can be associated, weeks after the vaccination, with acute neurological problems.
The Arbitrator also noted that, having considered that transverse myelitis was not the correct diagnosis of Ms Pond’s condition, Professor Pollard was unable to identify any other diagnosis and accepted that other conditions such as compressive lesions, intrinsic cord lesions, such as tumour, late onset multiple sclerosis and other inflammatory disorders such as sarcoid had been excluded.
The Arbitrator further noted that Dr Mellick pointed out that consistent with his own findings, Drs Katekar, O’Sullivan and Ferch had been provided with a clear and consistent history that points to a sudden occurrence of a neurological disorder, more likely than not involving the spinal cord. Therefore he considered that the evidence indicated that Ms Pond did experience an acute spinal cord disorder.
The Arbitrator noted that Drs O’Sullivan and Katekar had initially diagnosed Ms Pond’s condition as transverse myelitis and had only re-considered their views because of a lack of objective evidence to confirm the diagnosis.
The Arbitrator considered Dr Mellick’s assessment, which was in these terms:
“The kernel of the neurological problem is not the absence of spinal cord abnormalities on scanning or the absence of psychological [sic, cytological] abnormalities in the CSF, nor the accuracy of a diagnosis of transverse myelitis, but whether Ms Pond had an acute spinal cord lesion occurring in June 2010, because of the H1N1 vaccination or whether the episode of transverse myelitis at that time was a manifestation of some other undiagnosed neurological disorder, such as multiple sclerosis.”
Dr Mellick excluded the diagnosis of multiple sclerosis and ultimately concluded that if the neurological signs had been unchanged from the onset they could properly be attributed to transverse myelitis from June 2010.
Having considered the medical evidence, the Arbitrator concluded that the weight of neurological evidence favoured a finding of transverse myelitis (T81.8).
The Arbitrator distinguished the level of diagnostic certainty required for the acceptance of a diagnosis of transverse myelitis as a matter of scientific certainty on the one hand and legal causation on the other.
The Arbitrator applied the legal requirements of proof on the balance of probabilities (Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313, Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 19 NSWCCR 385; 49 NSWLR 262).
The Arbitrator concluded that it is not incumbent upon Ms Pond to produce evidence from medical witnesses “which proves to demonstration” that her contention is correct. If medical science is prepared to say that there is a possible view, then a judge after examining the lay evidence may decide that it is the probable view unless there can be no possible connection between the events: EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 (see also Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14).
Applying these principles the Arbitrator considered the following factors:
(a) on clinical examination Drs Mellick, O’Sullivan and Katekar each considered Ms Pond suffered from transverse myelitis;
(b) Professor Pollard did not positively exclude a diagnosis of transverse myelitis; he merely considered that the diagnosis was unlikely;
(c) there was a temporal connection between the onset of Ms Pond’s condition and the vaccination, and
(d) Dr O’Sullivan and Dr Katekar initially supported the diagnosis of transverse myelitis but changed their minds on the diagnosis because they could not be absolutely certain that the criteria identified by Professor Pollard had been satisfied.
The Arbitrator concluded (at T85) applying the commonsense test expounded by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, that Ms Pond suffered from transverse myelitis as a result of the vaccination injection on 10 May 2010.
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator erred:
(a) in law in conflating the issue of diagnosis with the issue of causation;
(b) in law in misdirecting himself as to the standard of proof in relation to disputed questions of scientific fact;
(c) in law in misdirecting himself in relation to the establishment of causation;
(d) in law and in fact in failing to consider the scientific literature going to the issues of diagnosis and causation;
(e) in law and in fact in substituting his own opinion as to what the opinions of Dr O’Sullivan and Dr Katekar were for those expressed by the doctors to be their opinions;
(f) in law and in fact, having accepted the evidence of Professor Pollard, in finding to the contrary of that evidence;
(g) in finding, if he did so find, that Ms Pond suffers from transverse myelitis;
(h) in law in finding, if he did so find, that Ms Pond had suffered an injury within the meaning of s 4 of the 1987 Act, and
(i) in law in finding, if he did so find, that if the respondent worker did suffer an injury within the meaning of s 4 of the 1987 Act, her employment with the appellant was a substantial contributing factor to the injury within the meaning of s 9A of the 1987 Act.
At the request of the appellant the appeal was listed for an oral hearing before me on 24 May 2016. Mr Hooke of senior counsel and Mr Halligan appeared for the appellant. Mr McMahon appeared for Ms Pond. At the hearing of the appeal the appellant sought and was granted, without objection, leave to add an additional ground of appeal. That additional ground is as follows:
(j) “the Arbitrator erred in having any regard to any opinion expressed by Dr O’Sullivan.”
DISCUSSION AND FINDINGS
It is convenient to first deal with the additional ground of appeal, ground (j).
Notwithstanding the Arbitrator’s ruling, excluding the opinion evidence of Dr O’Sullivan, it is clear that he relied on Dr O’Sullivan’s opinion. The Arbitrator recorded Dr O’Sullivan’s initial opinion on the causation issue (at T69.28):
“I can only conclude that on the balance of probabilities, there is a relationship between the H1N1 vaccination and the development of her spinal cord lesion. It is well recognized that such vaccinations can be associated, weeks after the event, with acute neurological problems. The H1N1 vaccination has been associated more with brachial neuritis, rather than cord pathology, but cord pathology has also been described.”
While the Arbitrator said that that opinion was included by “way of history of the development of the medical case and the development of the various diagnoses, as the case developed” (T70.4), for the reasons discussed below, it is clear that that opinion was considered and formed part of the Arbitrator’s reasoning that ultimately led to a finding in favour of Ms Pond.
The Arbitrator analysed Dr Mellick’s assessment of Dr O’Sullivan’s changing opinion in light of the absence of objective evidence to confirm the diagnosis of transverse myelitis. He said (at T79.16):
“Dr Mellick then turned to Dr O'Sullivan's reports and I think it is sufficient to say that Dr Mellick gave what I regard as cogent and acceptable reasons for not accepting Dr O'Sullivan's change of heart.”
An unequivocal statement demonstrating that the Arbitrator’s conclusions were influenced by Dr O’Sullivan’s initial diagnosis is found at T84.30 where he said:
“The question that I have to decide is what, on the balance of probabilities has been the cause of the applicant's condition. Dr Mellick himself and indeed the other doctors in the case, Dr O'Sullivan and Dr Katekar, accepted on a clinical basis that a diagnosis of transverse myelitis was applicable.”
The Arbitrator then noted that Dr O’Sullivan and Dr Katekar “softened” their approach and he then explained that this was because they could not be absolutely certain and because the relevant diagnostic criteria identified in Professor Pollard’s report had not been satisfied (T85.21).
I am satisfied that the Arbitrator’s acceptance of Dr O’Sullivan’s initial diagnosis of transverse myelitis and his opinion concerning the causal relationship between the vaccination and the contraction of the condition was central to the Arbitrator’s findings on injury and causation.
In any event, both parties accepted that the Arbitrator’s decision making process had been influenced by the opinion of Dr O’Sullivan. In doing so, it is clear that the Arbitrator erred by having regard to evidence that had been excluded from consideration. Mr McMahon conceded as much at the oral hearing, stating that any attempt to agree to the contrary would be “futile”.
It follows that ground (j) must be upheld and the Arbitrator’s decision must be revoked and the matter re-determined. In the circumstances, it is unnecessary to consider the remaining grounds of appeal.
Whilst it is desirable for the re-determination to be conducted by me, for the following reasons I do not consider that it is feasible.
The appellant submitted that before any re-determination could proceed the parties would require additional time to make further submissions on the merits of the application.
The evidence is currently in an unsatisfactory state. Before the matter proceeds further, the parties should re-consider the forensic evidence to be relied upon to ensure that cl 49 is complied with, so that the confusion that permeated the hearing before the Arbitrator can be avoided when the matter is re-heard.
Therefore, I consider the appropriate course is to remit the matter to another Arbitrator for re-determination.
DECISION
The Arbitrator’s determination of 2 February 2016 is revoked and the matter is remitted to a different Arbitrator for re-determination.
Judge Keating
President
27 May 2016
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