Hunter Towage Services Pty Ltd v Roger John Keith Donoghoe
[2008] NSWWCCPD 101
•22 September 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Hunter Towage Services Pty Ltd v Roger John Keith Donoghoe [2008] NSWWCCPD 101 | ||||
| APPELLANT: | Hunter Towage Services Pty Ltd | ||||
| RESPONDENT: | Roger John Keith Donoghoe | ||||
| INSURER: | QBE Workers Compensation (NSW) limited | ||||
| FILE NUMBER: | WCC9826-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 April 2008 | ||||
| DATE OF APPEAL DECISION: | 22 September 2008 | ||||
| SUBJECT MATTER OF DECISION: | Sections 4(b)(ii), 9(1) and 16 of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | QBE In House Legal Department | |||
| Respondent: | Whitelaw McDonald | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator, dated 23 April 2008, is revoked and the following decision is made in its place: “1. Award for the Respondent 2. No order as to costs.” No order as to costs of this appeal. | ||||
BACKGROUND TO THE APPEAL
On 19 May 2008 Hunter Towage Services Pty Ltd (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 April 2008.
The Respondent to the Appeal is Roger John Keith Donoghoe (‘the Respondent’).
The Respondent, who is presently 66 years of age, was employed as a Seaman with the Merchant Navy and was engaged on ocean going ships until, it seems, early 1994 at which time he commenced employment with BHP Transport Pty Limited (‘BHPT’) as a Deckhand on tugs working in and about Newcastle Harbour. The Respondent remained in that employ until 19 June 1999 at which time he was employed by the Appellant. The Respondent remained so employed until his retrenchment which occurred on 19 July 1999. He has not worked since the date of his retrenchment.
It is the Respondent’s case that, whilst there was in 1999 a change in the identity of his employer, his duties remained substantially the same during his one month’s employment with the Appellant. Given the nature of the claim brought by the Respondent in these proceedings the question as to the nature of his duties when last employed is of particular significance and is addressed hereunder. It is plain from the evidence before the Commission that BHPT and the Appellant were associated corporate entities.
Following retrenchment the Respondent commenced proceedings against BHPT in the former Compensation Court of NSW (‘the Court’) claiming weekly compensation and lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of alleged incapacity and particularised impairments/loss said to result from various injuries in the course of employment with that company. The detail concerning those allegations and claims is addressed hereunder. The Respondent’s Application was matter number 42300 of 1999 (‘the first claim’) and commutation of the Respondent’s rights against BHPT was approved by the Court pursuant to the former section 51(1)(c) of the 1987 Act on 19 July 2000. The Short Minutes of Order (‘Minutes’) with respect to that commutation are before the Commission in the present proceedings. The Minutes made provision for extensive amendment to the Application for Determination filed on behalf of the Respondent and noted the determination of the commutation sum as being $90,000.00. The Minutes record that liability to make weekly payments was commuted from “31 January 1994”. It may safely be inferred that the Respondent commenced employment with BHPT on that last mentioned date.
On 11 April 2006 the Respondent consulted Dr Adam Cooper, General Practitioner, complaining of bilateral knee pain. X-rays of his knees were requested. On 4 May 2006 he again consulted that practitioner reporting ongoing left knee pain “worse after kneeling, painting”. The Respondent was referred to Dr Richard Harbury, Orthopaedic Surgeon, for consultation and the Respondent underwent an arthroscopic procedure to his left knee in June of 2006.
In July of 2007 the Respondent forwarded to the Appellant an “Employee’s Report of Injury”. The injury suffered was particularised in that document as being “osteoarthritis of knees”, that the injury had occurred as a result of “heavy nature of work caused injuries to knees (osteoarthritis disease)”, the date of such injury was particularised as “over course of employ until 19/7/99”. The place of the alleged injury was stated in that document as being “on tug boats”. A copy of that document was forwarded to the Appellant’s Workers Compensation Insurer under cover of letter dated 20 July 2007 from the Respondent’s Solicitors.
By letter dated 1 June 2007 a Notice of Claim with respect to lump sums pursuant to sections 66 and 67 of the 1987 Act as well as other benefits was forwarded to QBE Workers Compensation (NSW) Limited, the Appellant’s Insurer. That Notice particularised the date of injury as being “nature and conditions of employment as (sic) a disease of gradual onset deemed today’s date or last day of service/aggravation being 19 July 1999”. The claim was stated to be for lump sums pursuant to sections 66 and 67 of the 1987 Act in respect of injuries to each of the Respondent’s legs together with medical expenses.
The Respondent’s claim as particularised in the Notices was the subject of dispute and accordingly an Application to Resolve a Dispute (‘ARD’) was filed on behalf of the Respondent with the Commission on 24 December 2007. That dispute came before an Arbitrator for conciliation/arbitration on 8 April 2008. The dispute between the parties was determined by the Arbitrator on 23 April 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 April 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
·On 1st June 2007 the Applicant suffered an injury to his knees which is a compensable injury for the purposes of the Legislation.
·The degree of permanent impairment in respect of both lower extremities is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a date of injury of 1st June 2007.
·The documents to be sent to the AMS are those accepted in these proceedings, namely;
i.Application to Resolve a Dispute and attached documents
ii.Documents attached to the Applicant’s Application to Admit Late Documents filed with the Commission on 4th April 2008 (the Applicant’s further statement of 2nd April 2008)
iii.Application to Admit Late Documents filed by the Applicant’s Solicitors with the Commission on 4th April 2008 (Group Certificates, an ASIC historical extract company search, the proceedings in the Compensation Court, copies of documents in Compensation Court matter 42300/99 and correspondence between the Insurer and the Applicant’s Solicitor)
iv.Application to Admit Late Documents filed by the Applicant’s Solicitors with the Commission on 28th February 2008 (Reports of Dr Harbury)
v.Reply and attached documents
vi.Application for Admit Late Documents filed by the Insurer with the Commission on 19th March 2008 (Clinical records of Dr Cooper)
vii.Application for Admit Late Documents filed by the Insurer with the Commission on 7th April 2008 (the previous proceedings in the Workers Compensation Commission and documents tendered in those proceedings)
A brief statement is attached to this determination setting out the Commission’s reason for the determination.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(i) in finding that the Respondent injured both knees as a result of the nature and conditions of his employment between 18 June 1999 and 19 July 1999;
(ii) in finding that the Respondent’s employment with the Appellant was a substantial contributing factor to any “injury” to the Respondent’s knees (sections 9A or 16 of the 1987 Act.);
(iii) in failing to find that the Respondent was disentitled to any compensation from the Appellant in respect of injury to his legs (knees) by reason of the approval of commutation of rights as against BHPT;
(iv) in determining matters of fact founded upon the medical evidence before the Commission, and
(v) in finding that the “deemed date of injury” was 1 June 2007 being the date of claim.
The issues enumerated above are a summary taken from the Appellant’s Application with respect to this appeal in particular as found in written argument under the heading “Grounds of Appeal”.
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 submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20% of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
There is before the Commission a transcript of proceedings conducted before the Arbitrator on 8 April 2008 (‘transcript’). That transcript records the submissions put on behalf of each party by Counsel then appearing. As noted above the Certificate of Determination was accompanied by a Statement of Reasons for Decision (‘Reasons’). At paragraph 13 of Reasons the Arbitrator listed the documentary evidence which was before him. That evidentiary material included documents attached to the Respondent’s ARD as well as those documents which were attached to three Applications to Admit Late Documents. It was further noted by the Arbitrator that those documents attached to the Appellant’s Reply as well as documents attached to two Applications to Admit Late Documents filed on behalf of the Appellant were in evidence before him. It was noted at paragraph 14 of Reasons that no oral evidence was given at the hearing.
A Statement by the Respondent dated 18 December 2007 accompanied his ARD. It was there stated:
“4. I was employed by BHP Transport until the identity of the employer changed to Hunter Towage Services Pty Ltd in June 1999. I was retrenched on 19 July 1999.
5. In the employ of Hunter Towage Services as a seaman and deckhand I was primarily with Adsteam of Newcastle Harbour. This was very demanding physical full time work. During the course of my employment with the Respondent examples of the heavy nature of my work were:-
a) Seas would often be rough and it was difficult to keep my footings. I was therefore knocked over several times a day gaining sprains and bruises to my knees.
b) Climbing and descending vertical ladders on board required repetitive use of the knees.
c) Jumping from tugs to wharves which would also force me to exert my knees.
d) I would every so often fall or slip over on board, especially when coming down a ladder, and in doing so would land stiff legged on a steel deck.
6. I believe the heavy nature of my work with Hunter Towage Services caused impairment to my knees. I have not worked since leaving the employ of Hunter Towage Services.
7. Nowadays my walking is restricted and I use a cane to assist me. I feel immediate pain with kneeling and squatting. I take various drugs to assist me with the pain. I am limited to doing general household chores and outdoor work that requires use of my knees.”
A second Statement of the Respondent dated 2 April 2008 was also in evidence before the Arbitrator. That Statement addressed the circumstances which caused delay in giving notice with respect to the subject claim. It was stated by the Respondent that he first had knowledge of the possibility of bringing a claim in “about late 2006 or early 2007” after hearing of claims brought by former workmates and attending a meeting at which a solicitor, Mr John McDonald, “mentioned that a case of this sort could be brought”.
A medical report from Dr Barry C Bracken dated 1 March 2007 was in evidence before the Arbitrator. That report contained a summary of history taken by that Practitioner, together with detail of his findings on examination and his expression of opinion with respect to the role of the Respondent’s work as a Deckhand as to causation and aggravation of the condition diagnosed. Of particular importance in this appeal is Dr Bracken’s initial recording of the history:
“Mr. Donoghoe said that in 1998 he slipped coming down a ladder on a tug and fell a distance landing stiff legged on a steel deck and jarring his low back. He said he had immediate severe low back pain for which he was off work. He said he was told he had two degenerate discs at the lower end of his back. He was treated with physiotherapy, chiropractic treatments, hydrotherapy and anti-inflammatory agents. He said he was off work for six to eight months having that treatment. He said he then returned to light duties with a tug company doing office work and did that up to the time that he was retrenched in 1999.”
Correspondence dated 1 November 2007 addressed to the Respondent’s solicitors from Dr Bracken is in evidence before the Commission. That correspondence enclosed “an amended first page” of Dr Bracken’s report dated 1 March 2007. The amendment to that report concerned the history as recorded and above noted. The last sentence of the third paragraph of that page was deleted and substituted by the following notation:
“He said he then returned to light duties with a tug company working on a tug up until the time that he was retrenched in 1999.”
The correction of the history above noted followed receipt by Dr Bracken of correspondence dated 22 October 2007 from the Respondent’s solicitors which is recorded by Dr Bracken as having indicated that his record of the relevant history was “incorrect”. Dr Bracken, after noting the general content of the solicitor’s correspondence stated:
“I find that not unreasonable and I may well have misconstrued what he said at the time. I am therefore sending you an amended first page for that report which rectifies the matter.”
It was recorded by Dr Bracken in his report of 1 March 2007 that he was told that the Respondent’s “knees started to ache with activity about 20 years ago”. Dr Bracken records the Respondent’s duties as a Seaman performed on small tender boats servicing oil rigs in Bass Strait. Dr Bracken noted that the conditions at sea were at times “atrocious” and that the Respondent had difficulty keeping his footing. It was recorded that the Respondent was “often knocked down several times a day and suffered multiple bruises and sprains”. Dr Bracken also recorded that the Respondent had to jump from ships to barges and that such activity was “hard on his knees”. With respect to work on the tugs the Respondent had reported that he had been required to climb ladders, that he was continually bracing himself against the roll of the vessel and that he had to jump from the tugs onto wharves.
Dr Bracken also recorded that the Respondent informed him that his knees ached but that he “put up with it as he wanted to continue working”. The Respondent reported to Dr Bracken that his “knees were also aggravated by the fall that he had when he hurt his low back …”. The Respondent reported that he did not complain about his knees because his low back pain was severe. Dr Bracken also recorded that the Respondent first saw his local medical officer about his knees in about May of 2006. Dr Bracken proceeded to record the Respondent’s history of treatment.
Following examination of the Respondent and notation of radiological studies Dr Bracken expressed the following opinion:
“OPINION
In my opinion it is certain on the balance of probabilities that this man’s previous occupation as a seaman and deck hand has been the prime cause of him gradually developing over a period of 20 years arthritic changes in both knees primarily affecting the patello femoral and medial compartments.
His arthritic changes have been a disease of gradual onset substantially caused by his conditions of work as outlined above. There have been numerable aggravating factors such as being knocked down frequently at sea and having to repeatedly climb vertical ladders and jump onto barges or to and from barges and to and from wharfs.
It would seem on history that his knees were particularly aggravated during his period of work as a deck hand on tugs and there may have been a further aggravation when he slipped coming down a ladder and injured his back as described above.”
Dr Bracken proceeded to assess both permanent loss of efficient use of the Respondent’s legs and the equivalent whole person impairment (WPI) arising as a result of the condition of the Respondent’s knees.
In evidence before the Arbitrator were copies of the Respondent’s Report of Injury and correspondence giving Notice of Claim to the Appellant’s Insurer. The claim made in the second of those documents was founded upon the assessments in Dr Bracken’s report.
Copies of two reports from Dr Harbury, addressed to Dr Cooper dated 11 May 2006 and 15 June 2006 were in evidence before the Arbitrator. The history as recorded by Dr Harbury in the first of those reports is noted as follows:
“… He is a 64 retired merchant seaman who is troubled by left knee pain. This is mostly medial but anterior at times. He has had a problem on and off with it for 20 odd years and he initially had to jump around on the decks of ships. He has had several injuries whilst doing this and in his early years had the sensation of instability at times and required to favour his knee. More recently his pain is becoming more prevalent. It is associated with clicking on the inside of the joint. There is swelling on occasion. There is pseudolocking but no obvious deformity.”
Dr Harbury proceeded to state in the first of those reports the likelihood that the Respondent had suffered a meniscal tear. Dr Harbury’s second report notes the conduct of an arthroscopic procedure which took place on 5 June 2006 which procedure demonstrated “a tear of the posterior horn medial meniscus” which was “resected back to a stable base”. Dr Harbury also noted the presence of “Grade 3 chondromalacia on the adjacent tibial plateau”. That report further notes:
“The rest of the knee was otherwise in tact showing grade 1 chondromalacia only with the exception of a small area of grade 3 on the inferior trochlea.”
A large number of documents were in evidence before the Arbitrator being ASIC historical company extracts relating both to the Appellant company and BHPT and associated companies. Group Certificates issued to the Respondent by both BHPT and the Appellant were also in evidence.
The Appellant placed in evidence before the Arbitrator a report from Associate Professor Leon Kleinman, Orthopaedic Surgeon, dated 9 August 2007. Dr Kleinman recorded the Respondent’s history as follows:
“HISTORY OF INJURY
About 20 years ago he noticed that his left knee would feel a bit uncomfortable and unstable while climbing up and down ladders. He had no specific episode of injury.
He says that he put up with his discomfort but by early 2006 his left knee was repeatedly collapsing so he consulted Dr Richard Harbury, Orthopaedic Surgeon, of Maitland. Dr Harbury performed an arthroscopic procedure on his left knee on 05/06/2006.
I reviewed the intra-operative photographs that he brought to the consultation. These show that the articular cartilage of the medial condyle of his femur was slight soft as evidenced by the probe being able to dent the cartilage and he has a degenerative tear in the of the medial meniscus. There is no evidence of arthritis on these photographs.
He has had a partial medial menisectomy performed trimming the tear back to a stable base.
He says that he now (sic) starting to have trouble with his right knee which is starting in the same way the trouble in his left knee commenced. He has yet consulted anyone about his right knee yet (sic) because he feels that the condition of his right knee is not bad enough yet and “it is only collapsing periodically”. He does not think that the right knee swells up.
He recalls an episode that occurred while he was working on a tug in 1997. He slipped when he was coming down a ladder and landed in a standing position with his legs straight. He had some pain in his right knee and but more importantly he says that he crushed two discs in his lower back.
After this episode, he was on rehabilitation for one year and was then made redundant in 1999.”
Dr Kleinman expressed the opinion in the above mentioned report that the Respondent “has constitutional changes of both knees”. Dr Kleinman also expressed the view that it was probable that:
“…sliding down a step ladder onto his extended right knee aggravated the changes in his right knee joint and caused some of what is radiologically apparent as very early patello-femoral osteoarthritis.”
Dr Kleinman proceeded to assess, relevantly:
“a 5% loss of efficient use of his left leg at or above the knee including below the knee.”
The Appellant placed in evidence before the Arbitrator the clinical records of Dr Cooper, relating to attendances and treatment of the Respondent. Those records include what appear to be copies of database material recording attendances of the Respondent from January 2002 to February 2008 and a print out of those drugs prescribed for the Respondent’s treatment from time to time between September 2001 and February 2008. The records also include a number of reports from other practitioners which are not directly relevant to the subject claim. There is also a copy of what appear to be handwritten clinical notes relating to the Respondent’s attendance at Dr Cooper’s practice between June 2000 and May of 2006.
The clinical notes of Dr Cooper indicate that in April of 2006 there was a request for diagnostic imaging being x-ray of both left and right knees of the Respondent as well as other pathology studies. That material is recorded in the database printout. The hand written records indicate a history of “bilateral knee pain”. The database record records an attendance on 4 May 2006 where it is recorded “4/52 ongoing L knee pain, worse after kneeling, painting”. It was there noted that the Respondent was referred for consultation with Dr Harbury.
The Appellant placed in evidence before the Arbitrator the record of proceedings conducted before the Court between the Respondent and BHPT being matter 42300 of 1999. Included among that material is a copy of what is headed “Third Application For Determination” filed on 11 July 2000. That Application names the “Respondent” as BHP Transport Pty Limited t/as Hunter Towage Services Pty Limited. The Application proceeds to allege three frank injuries, together with an allegation of injury resulting from the nature and conditions of work between 31 January 1994 and 19 June 1999. Paragraph 2(a) of the Application described the nature of the injury alleged as including the following injuries:
“i) Injury to left foot. Injury to left leg at or above the knee. Injury to right leg at or above the knee. Injury to back. Aggravation, acceleration and exacerbation of disease process.
(ii) Injury to back. Injury to right leg at or above the knee. Injury to left leg at or above the knee. Aggravation, acceleration and exacerbation of disease process.
(iii) Injury to back. Injury to right leg at or above the knee. Injury to left leg at or above the knee. Aggravation, acceleration and exacerbation of disease process.
(iv) Injury to right arm at or above the elbow. Injury to left arm at or above the elbow. Injury to back. Injury to right leg at or above the knee. Injury to left leg at or above the knee. Aggravation, acceleration and exacerbation of disease process.”
Also included among the documents relating to the first proceedings were a document headed “Consent to Redemption and Commutation Application” signed by the Respondent dated 19 July 2000 and a copy of “Short Minutes of Order for Commutation pursuant to Section 51(1)(c)” signed on behalf of the parties to the Application also dated 19 July 2000. Both those documents have the term “Pty Limited” struck out where those words followed “Hunter Towage Services”. The content of these documents, so far as may be relevant on this appeal, is addressed hereunder. I note in passing that included among the documents produced and tendered in evidence is a copy of an Application for Determination bearing date 1 July 1999 which has the same alteration to the title of the Respondent as earlier noted, accompanied by a signature and the date “19/7/2000”. It may safely be inferred that that document, being in the custody of the Court, was amended by Commissioner Wright who presided at the hearing on 19 July 2000.
In the proceedings before the Court each party tendered a large volume of medical evidence in support of the Commutation Application. That medical evidence before the Court is the subject of examination, so far as is relevant to the present appeal, hereunder.
Appellant’s Submissions
The following is a summary of the matters put to the Arbitrator on behalf of the Appellant at the hearing. It is to be noted that, underlying these submissions, was an apparent assumption given the state of the evidence presented on behalf of the Respondent, and the manner in which his claim was conducted at the hearing, that the injury alleged was “the aggravation, acceleration, exacerbation or deterioration” of a disease within the meaning of section 4(b)(ii) of the 1987 Act. It was argued on behalf of the Appellant:
(i) that, having regard to the allegations made as against BHPT in proceedings before the Court, which included a claim with respect to injury to both the Respondent’s legs, the “deemed” date of injury to those parts of the Respondent’s anatomy must be determined having regard to the Respondent’s allegation of incapacity resulting from those injuries (and others) and it would therefore be a date determined with reference to either date of claim in respect of those injuries or the date of incapacity;
(ii) that the state of the evidence with respect to duties performed by the Respondent during the currency of employment with the Appellant (1 month in June-July 1999) does not establish that such employment “was a substantial contributing factor to the injury” within the meaning of section 9A of the 1987 Act;
(iii) that, on the facts, the Respondent had failed to establish that the Appellant was “the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration” within the meaning of section 16 of the 1987 Act. I note in passing that some reference was made to the provisions of section 15 of the 1987 Act in the course of submissions, and
(iv) that the evidence would not support a finding that “any injury has occurred at all in the course of his employment with [the Appellant] …”. It was put that the Applicant carries the onus of “proving that he sustained an injury in that period”.
The Appellant, in support of this appeal has provided Written Submissions which accompany its Application. Particular attention is given in the course of those Submissions to that evidence which touches upon the nature of the Respondent’s duties during the one month period of employment with the Appellant in 1999. It is argued that, having regard to the manner in which the claim against BHPT was framed, it was clear that the Respondent was “incapacitated” in the relevant sense at the latest when his employment with BHPT ceased. That argument is further developed where it is suggested that the proper assessment of the evidence concerning the nature of the Respondent’s duties whilst employed with the Appellant would not support an argument that such employment was relevant to any “aggravation” of underlying disease in the Respondent’s knees. It is put:
“It is submitted that the Arbitrator erred in determining that the nature of the performed [sic] for 1 month, whilst employed by the Appellant, injured the Worker’s knees.”
An argument is put on behalf of the Appellant (paragraph 2 of Submissions):
“2. Given the significant incapacity already evident at the time the worker became employed by the appellant on 18.06.99 (sic), the arbitrator should not have found that that (sic) his employment with the appellant was a substantial contributing factor to his injury (s.9A), nor should he have found that the worker’s employment with the appellant was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration to any disease in respect of his injuries (s.16).”
It was argued that the work performed by the Respondent at BHPT was:
“clearly heavy, repetitive and arduous, and the worker suffered a number of injuries whilst engaged in such heavy work for 5 years with that employer.”
It was put that such employment:
“clearly satisfied both s.9A and s.16 in respect of any injury to his knees, either simpliciter, or by the aggravation etc. of his underlying disease.”
It was stated that BHPT “carried liability for any lump sum” with respect to the Respondent’s knees and the Submissions noted that the Respondent had “extinguished his rights” by commutation with respect to the liabilities of BHPT.
The evidence before the Arbitrator was summarised in Written Submissions and it was put that:
“… the Arbitrator erred in finding that employment with the Appellant was a substantial contributing factor to any injury to the Worker’s knees; either pursuant to s.9A or s.16(1).”
With respect to the question of “date of injury” alternative submissions were put on behalf of the Appellant. In summary it is argued that the injury to the Respondent’s knees “is as a result of the nature and conditions of his employment with BHP …”. It was argued that incapacity occurred prior to the commencement of the Appellant’s employment of the Respondent and accordingly any deemed date of injury would be determined having regard to a finding that “BHP was the “last employer””. It was argued in the alternative that, in the event that the Appellant’s employment was relevant employment in terms of section 16 of the 1987 Act then the appropriate finding would be that date of injury was 19 July 1999. This submission challenges the Arbitrator’s finding that the injury was deemed to have occurred on 1 June 2007 being the date of Notice of Claim. It is further argued that:
“… if the date of claim for lump sum compensation is considered to be the date of injury, this date should be the date that the AD in the Compensation Court claiming lump sum compensation pursuant to s.66 for both legs at or above the knees; such date being 01.07.99.”
Respondent’s Submissions
Submissions put on behalf of the Respondent at the hearing are summarised as follows:
(i)It was put that there was no dispute that the Appellant was “a separate and discrete employer” and that its employment of the Respondent commenced on 19 June 1999. It was argued that the history relevant to previous proceedings as against BHPT were of no relevance in determining the Respondent’s rights as against the Appellant. It was stated by Counsel:
“Merely because BHP elected to compensate this man does not mean that there was not an available claim against the later employer ...”;
(ii)it was argued on behalf of the Respondent that any claim in respect of his legs as against BHPT was limited to leg pain and disability related to his back injury as distinct from any allegation in relation to injuries to his knees. Reference was made to the evidence of Dr Smith in support of this proposition. It was put that:
“It is quite clear that the incapacity being complained of at that time and which put the Applicant on light duties was very different to that which it is now in respect of his knees ...”
(iii)submissions were put with respect to the nature of the Respondent’s duties during the period of 1 month when he was employed by the Appellant. Reference was made to the evidence of Dr Isaacs, Dr Smith, Dr Sage and Dr Harrington. Following that analysis it was put that:
“… in my submission, the contemporaneous evidence makes it absolutely clear that this man returned to work on tugs.”
(iv) it was put later ( transcript page 22, line 32):
“… So, once he’s back on the tug, whether he’s lifting tow ropes or only weights under 20 kilos is irrelevant. It’s the rough seas, it’s the ladders, it’s the jumping on and off wharves. All of those are still part of his employment when [sic] but he’s back on the tugs for that month.”
(v)it was put, with respect to the relevance and proper application of section 9A and the “disease provisions” of the 1987 Act as follows:
“… The purpose of the disease provisions of the Workers Compensation Act are to relieve the worker from proving causation. What the worker needs to do is that the worker needs to prove that (1) he or she has a disease of gradual onset, and (2) that the type of employment in which the worker is engaged of its nature has the tendencies and capabilities of either causing that disease process or, alternatively, aggravating, accelerating it, leading to a deterioration of it or an exacerbation of it. The worker does not need to prove that the actual work being performed was causative. That is the whole purpose of the disease provisions. He only has to prove it has the nature or the tendency.
To make the submission as my friend made it was to effectively mean that the applicant would have to prove causation, that is, “That this was work that substantially contributed to my condition.” That pushes the test too far, with the greatest of respect. All that the applicant has to prove is that this is a type of work which is capable of being a substantial contributing factor, and not that the specific employment itself did so.”
(vi)submissions were put (at transcript page 19) founded upon the evidence of Drs Bracken and Harbury and that of Professor Kleinman in support of the Respondent’s allegation that the relevant work caused aggravation (or causation) of a disease process being an arthritic condition of his knees. In the course of these submissions reference is made (transcript page 19, line 31) to the history taken by Dr Bracken as corrected following an exchange with the Respondent’s Solicitors, and
(vii)with respect to the question of determination of the date of injury the Respondent pressed an argument that the appropriate finding should be that the deemed date is the date of claim in 2007. It was put, in the alternative that the deemed date of injury may be found as being 19 July 1999 being the last date of relevant employment.
The Respondent has furnished Written Submissions in support of his opposition to the Appellant’s Application. Those Submissions may be summarised as follows:
(i)With respect to the nature of duties performed whilst employed with the Appellant the Respondent seeks to refute the Appellant’s suggestion that:
“… simply because the respondent worker was placed on selected duties in respect of his back then these must of mean [sic] light duties as far as knees were concerned.”
Reference is made to the evidence of the Respondent contained in his Statement which it is said:
“…indicated that he had to work on board the boat and that the motion of the boat itself as well as the need to run up and down stairs caused him substantial pain in the knees. He said he did this work until his last day of employment with the appellant employer.”
(ii)With respect to arguments raised in relation to the relevance and application of section 9A of the 1987 Act it was put on behalf of the Respondent concerning the one month period of employment with the Appellant that:
“… Please also note the evidence quoted by the arbitrator at paragraphs 35 to 42 of his judgment which quotes evidence from 1999 which suggested the respondent worker’s employment was still heavy right up to his last date of employment with the appellant employer. The arbitrator was entitled to accept such evidence. If such evidence is accepted, in our submission this leads unavoidably to the conclusion that employment with the appellant employer was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of osteoarthritis in the knees.
In any event, even if that particular month of employment was not in itself a substantial contributing factor to the aggravation etc of the disease of osteoarthritis this is not fatal to the respondent worker’s case. His work generally in that position was a substantial contributing factor to the injury to his knees and the appellant employer was the last employer generally in employment which was a substantial contributing factor to the aggravation etc. It is not appropriate in Section 16(1)(B) [sic] to read the reference to “employment” as being a reference to each separate period of employment because this would defeat the entire purpose of this section. It is to noted that Section 15 and 16 were introduced initially to avoid the hardship of having to join many different employers in a “nature and conditions” case.”
(iii)Submissions are put with respect to the question of “deemed” date of injury seeking to refute the propositions contained in paragraph 7 of the Appellant’s Written Submissions on this appeal. It was put that there was no evidence of incapacity resulting from knee injury in 1999 and in those circumstances the Appellant’s suggestion that the deemed date of injury should be 19 July 1999 “is untenable”. It was put that the “correct deemed date of injury is the date on which the claim was made 1 June 2007”.
Supplementary Submissions were made on behalf of the Appellant under cover of letter of 8 August 2008 addressed to the Registrar of the Commission. Enclosed with that correspondence was a copy of the Judgment of the NSW Supreme Court, Court of Appeal in Gales v Lovett, McCracken & Bray [2008] NSWCA 171 (‘Gales’). It was argued that Gales supported the Appellant’s submission that:
“…the commutation between BHP and the respondent extinguished the respondent’s rights completely and that the respondent should not have been awarded further compensation.”
Those Supplementary Submissions were responded to by the Respondent’s Solicitors in correspondence dated 12 August 2008 addressed to the Registrar. That response sought to distinguish the matter of Gales on the basis of factual matters and questions of principle.
DISCUSSION AND FINDINGS
It may be seen from the “Grounds of Appeal” appearing in documentation accompanying the Appellant’s Application that the Arbitrator’s “findings” with respect to five separate and distinct issues as between the parties are challenged. Those “grounds” lack some precision with respect to the basis of such challenge however it is clear that the Appellant is challenging both the Arbitrator’s conclusions of fact and, with respect to a number of matters raised, his application of relevant principle.
It is convenient to deal with the Appellant’s argument with respect to the suggested consequences of the Respondent’s commutation of rights as against BHPT in the earlier proceedings. It must be stated at the outset that, whilst the title of the Appellant appeared on the Court record until such time as same was amended, there is no evidence to suggest that the Appellant was in any relevant sense a party to the proceedings. It is not suggested that the Appellant was served with the relevant documents nor is there any suggestion that the Appellant’s Insurer was in any respect privy to the proceedings. There is no allegation of injury in the Application for Determination filed on behalf of the Respondent that could in any way be construed as being an allegation of injury whilst employed by the Appellant. The amendment to the title of the Respondent in those earlier proceedings apparently made on the date of hearing of the Commutation Application makes it clear, in my opinion, that it was never intended that the Appellant be a party to those proceedings. I agree with the Respondent’s submission that the decision of Gales may be distinguished from the present matter upon the basis that the Court of Appeal was there dealing with the consequences in law of a commutation of liability of an employer with respect to specified injury. In the present case there is no approved commutation agreement as between the parties.
The primary challenge to the Arbitrator’s decision concerns his finding as to “injury”. That issue was perhaps most succinctly stated by the Appellant’s Counsel in argument before the Arbitrator where it was said (transcript page 21, line 13):
“The disease provisions are contained also in section 4 of the Act. That’s where you get personal injury and disease. All that section 16 does is deem a date of injury and force a particular employer to pay – the last employer.”
That observation by Counsel touches on the issues which required adjudication and determination by the Arbitrator. Fundamental to entitlement as against the Appellant, the Respondent is required to prove that he has received an injury within the meaning of section 9 of the 1987 Act. The definition of “injury” appears in section 4 of the Act:
“4 Definition of “injury”
(cf former s 6 (1))
In this Act, “injury”:(a)means personal injury arising out of or in the course of employment,
(b)includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
A claimant is not entitled to compensation unless it is established that employment was a substantial contributing factor to the injury in terms of section 9A of the 1987 Act. That section provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
a. the injury arose out of or in the course of, or arose both out of and in the course of, the workers’ employment,
b. the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
It may be seen from the summary of argument put both before the Arbitrator and on this appeal that the provisions of section 16 of the 1987 Act are of significance. That section does not create liability to pay compensation but, as pointed out by Counsel on behalf of the Appellant before the Arbitrator, operates to identify a deemed date of injury and identifies the employer liable to pay the subject compensation. That section provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation 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.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:
“C” is the contribution to be calculated for the particular employer concerned.
“T” is the amount of compensation to which the employer is required to contribute.
“A” is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
“B” is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4) This section does not apply to an injury to which section 17 applies.
Given the Appellant’s challenge to the Arbitrator’s finding as to injury it is convenient at this point to examine those findings made by the Arbitrator and his reasons for so concluding. The Arbitrator observed at paragraph 16 of Reasons that:
“16. The condition of arthritis is self evidently a disease. It is probably the condition which most frequently invokes the operation of sections 15 and 16.”
That observation was made by the Arbitrator in the context of acknowledging that the Appellant did not press an argument raised earlier that “arthritic change is not a disease within the meaning of the Workers Compensation Act”.
The Arbitrator proceeded to deal with questions raised with respect to the consequences of the commutation approved in the earlier proceedings and an argument raised as to causation of injury to the Respondent’s right leg. The Arbitrator concluded that the commutation created:
“… no bar to the Applicant maintaining the present proceedings.”
He further found, following examination of medical evidence, that:
“I am not persuaded that the injury to the Applicant’s leg or legs in 1998 in any way has any connection with the current claim which is in relation to degenerative condition of his legs, knees allegedly due to the result of his employment with this Respondent.”
The Arbitrator then enumerated three issues which he had identified as being raised during the course of argument. Those issues were stated to be:
“
·Was the Applicant’s employment with the Respondent employment to which (sic) the nature of which the Applicant’s alleged disease is due
·Was it employment which aggravated, accelerated or exacerbated any disease suffered by the Applicant
·Was such employment a substantial contributing factor to the Applicant’s alleged disease.”
The Arbitrator addressed those perceived issues between paragraphs 24 and 45 of his Reasons. Reference was made to argument and the medical evidence before the Commission and, at paragraph 46 of Reasons, the Arbitrator made the following finding:
“46. Accordingly on the basis of the Applicant’s general descriptions of the work that he did and the contemporaneous comments of the doctors who saw him during the period of his employment with the Respondent, I am comfortably persuaded that the Applicant’s employment with the current Respondent was employment to the nature of which the Applicant’s disease was due.”
The Arbitrator proceeded (at paragraphs 47 and 48 of Reasons) to assess the evidence of Dr Kleinman following which (at paragraph 49 of Reasons) he stated:
“49. It therefore seems clear to me that it is more than just possible that the constitutional changes in the Applicant’s right knee were aggravated, accelerated, exacerbated or deteriorated by the nature and conditions of his employment as he describes in that statement namely, being on a tug in rough sea, climbing ladders, jumping on and off wharfs, slipping over especially when coming down ladders.”
The Arbitrator proceeded (at paragraph 50 of Reasons) to address matters raised on behalf of the Respondent with respect to the operation of section 16 of the 1987 Act following which (at paragraph 51) he reached a conclusion favourable to the Respondent. It was there stated:
“50. I agree with the submissions from the Applicant’s Counsel that circumstances involving a disease of gradual onset (which the Applicant’s underlying degenerative changes in his knees self evidently is) and in circumstances (such as the present case) where it has been found that the Applicant’s employment with the Respondent aggravated, accelerated or exacerbated this condition, the provisions of Section 16 relieve an Applicant from proving causation. The test is not whether the Applicant’s employment with the Respondent caused the aggravation, acceleration or exacerbation or deterioration, merely that it was a substantial contributing factor to the aggravation, acceleration or exacerbation or deterioration. The Respondent’s Counsel conceded that the provisions of Section 16 do not require a direct causal link to be proven.
51. I am accordingly comfortably persuaded that his employment with the present Respondent aggravated, accelerated or exacerbated the underlying disease of the Applicant’s knees.”
It is the finding of the Arbitrator as stated in paragraph 51 of his Reasons which is the subject of challenge by the Appellant.
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249(‘Chemler’) where, in the course of considering the nature of the part of the exercise by a Presidential member conducting a review it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
It is clear from the Arbitrator’s Reasons that he has concluded that the Respondent at the time he was employed by the Appellant suffered from a disease identified at paragraph 16 of his Reasons as being “arthritis”. The Arbitrator has also made a finding of fact (at paragraph 45 Reasons):
“…that there was [sic] certainly extensive periods of his employment with the Respondent when he was doing unrestricted work and during those periods of time which he was on supposedly light duties he was still doing quite heavy work.”
It was upon the basis of that finding that (at paragraph 46 of Reasons) the Arbitrator concluded that the Respondent’s employment “was employment to the nature of which the Applicant’s disease was due”.
At this point in his Reasons the Arbitrator has concluded that there existed a disease and that the Respondent’s employment was employment to the nature of which such disease was due. There has been no reference by the Arbitrator to the need to examine the question of occurrence of injury within the terms of section 9 of the 1987 Act nor has there been reference to the particular provisions of section 4 of that Act. I am of the opinion that the Arbitrator’s process of reasoning demonstrates error on his part. The term “to the nature of which the Applicant’s disease was due” is not a term found in the definition section (section 4) of the 1987 Act. It is a term which is used in the wording adopted by the legislature in section 15 of that Act which regulates liability in cases of injury within the meaning of section 4(b)(i) and section 15 of the 1987 Act. There is, as well, an inconsistency between the finding as expressed at paragraph 50 of Reasons and that quoted above at paragraph 46 of Reasons.
The Arbitrator, in my opinion, has erred in concluding (paragraph 50 of Reasons) that “the provisions of section 16 relieve an Applicant from proving causation”. It is stated by the Arbitrator that “Respondent’s Counsel conceded that the provisions of Section 16 do not require a direct causal link to be proven”. It is correct that the Appellant’s Counsel at the hearing stated (transcript page 21, line8):
“…whilst my friend in a strictly legal sense is correct that the deeming provisions under 15 and 16 don’t require a true causal link in the traditional way where you say one is caused by the other, I don’t concede the point that he makes.
The disease provisions are contained also in Section 4 of the Act. That’s where you get personal injury and disease. All that section 16 does is deem a date of injury and force a particular employer to pay – the last employer.”
Whilst Counsel did not explicitly state the need for causal nexus between the employment and the aggravation, acceleration, exacerbation or deterioration of a disease it is clear that he was there asserting that section 16 of the 1987 Act operates merely to establish a date of injury and determine which employer, in the case of multiplicity of employers, is liable. What was unstated by Counsel and indeed by the Arbitrator, is that in circumstances where it is proper to conclude as a matter of fact that there is a causal nexus between the employment and aggravation etc of a disease the provisions of section 16 operate to sheet home liability to that employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
As earlier observed it is clear that the Respondent’s claim was founded upon an allegation of injury within the meaning of section 4(b)(ii) of the 1987 Act. The provisions of section 16 of that Act are of relevance given that it is alleged that the Appellant was the employer “who last employed the worker in employment that was a substantial contributing factor to the aggravation etc …”.
It was observed by Roche ADP (as he then was) in Rann v Saratoga Holdings Pty Ltd and Ors t/as Victoria Park Plantations [2006] NSWWCCPD 77 (‘Rann’) at [51]:
“51. To rely on the disease provisions in section 4(b)(ii) and section 16 of the 1997 Act the following must be established:
·that the worker is suffering from a disease;
·the disease has been aggravated by the work done, and
·the employment concerned is a substantial contributing factor to that aggravation.”
In the present case the Arbitrator, as above noted, has determined that the Respondent is suffering from a disease. With respect to that disease the Arbitrator made the finding noted in [71] above.
As earlier stated, the words “employment to the nature of which the disease was due” appear in section 15(1)(b) in the context of identifying the employer who is liable with respect to an injury within the meaning of section 4(b)(i) of the 1987 Act.
The Arbitrator’s approach is such that there has not been an appropriate enquiry as to whether “the disease has been aggravated by the work done” as stated in Rann. Whilst it is true that the Arbitrator subsequently (at paragraph 49 of Reasons) made reference to the wording of section 4(b)(ii) it is clear that the Arbitrator was there addressing Dr Kleinman’s view that constitutional changes in the Respondent’s right knee were possibly aggravated in the incident at work when the Respondent slid down a step ladder onto his extended right knee. The significance of Dr Kleinman’s opinion, if accepted, is considerable given that the slip down the ladder occurred in the course of employment with BHPT and was arguably a “personal injury” within the meaning of section 4(a) of the 1987 Act.
As noted above the Arbitrator identified (at paragraph 23 of Reasons) one issue between the parties as being:
“ Was such employment a substantial contributing factor to the Applicant’s alleged disease.”
As was stated in Rann the enquiry to be conducted on the present facts was whether, having established disease and aggravation of that disease, the employment concerned is a substantial contributing factor to that aggravation. It is my view that the Arbitrator has erred in his approach to questions raised with respect to the provisions of section 9A of the 1987 Act. It appears from the Arbitrator’s Reasons that no attention has been given explicitly to the relevance of that section having regard to the facts and arguments raised on behalf of the parties at the hearing.
Having regard to the errors which I have attempted to identify in the summary which appears above I am of the opinion that the Arbitrator’s findings of fact with respect to the Respondent’s employment with the Appellant require review. Once a determination is made as to the correctness or otherwise of the Arbitrator’s findings consideration may be given to the application of appropriate principle to the facts as found.
The Respondent’s Employment with the Appellant
The Arbitrator observed (at paragraph 36 of Reasons):
“36. I accept Counsel for the Respondent’s criticism of the lack of precision in the Applicant’s statement concerning the extent of his duties in the period of his employment with the present Respondent. This is understandable, given the length of time that the Applicant was employed with the present Respondent as compared with the Respondent in the Compensation Court Proceedings.”
Having regard to the lack of precision in the Respondent’s Statement and the very substantial time interval between his last period of employment and the making of that Statement I respectfully agree with the Arbitrator’s approach to an examination of evidence which was more contemporaneous with that period of employment. Such an examination was conducted by the Arbitrator following which he appears to have accepted in its totality the contents of the Respondent’s Statement as being relevant to the nature of employment with the Appellant. The Arbitrator’s analysis of the evidence is to be found between paragraphs 37 and 46 of Reasons. It is proposed to review that evidence.
In August of 1998 the Respondent consulted Dr AJ Bookallil, Neurosurgeon, concerning his back injury and disability. That practitioner recorded a history of back injury occurring in February of 1998 following which he was treated with traction and hydrotherapy. It is recorded that the Respondent returned on “light duties” after which the Respondent suffered increased pain after lifting. In September of 1998 Dr Bookallil recorded:
“He is back at work part-time and seems to be enjoying it.”
The reports of Dr AVB Isaacs, Orthopaedic Surgeon, record that, by reason of back disability, the Respondent was absent from work in March of 1998. During the course of consultation with Dr Isaacs in January of 1999 it was recorded by that Practitioner that the Respondent had:
“returned to pre-injury employment on 12 hour shifts on the tugs working 14 days straight and then have a week off.”
The Respondent was examined by Dr John Sage, Orthopaedic Surgeon in May of 1999. On that occasion it was recorded by that Practitioner:
“… On returning to work he is on not so much selected duties, apparently it is not described that way, but he doesn’t pull the towline off the winch and doesn’t do any carrying.”
Dr Sage noted a “further aggravation” of the Respondent’s back disability which occurred on 15 February 1999 whilst lifting a towline.
The Respondent was examined by Dr Chris Harrington on 21 October 1999. Dr Harrington took a history of injury to the Respondent’s back on a number of occasions including an incident on 15 February 1999 following which Dr Harrington noted:
“He was at work for selected duties but basically never worked fulltime as an unrestricted tug operator of [sic] deckhand since then.”
A report of Dr Robert Gordon Smith dated 18 February 2000 contains the following notation which follows a record of the Respondent’s history of back injury including the incident in February of 1999:
“He resumed selected duties and carried on until he was made redundant on 18/7/99. During this time the pains had become worse and he was taking increasing analgesia. He said that he “was told that if [he] didn’t resume work he would not get redundancy” and he felt that he was not fit.”
The Respondent was examined by Dr Kim Edwards, Surgeon in April of 2000. That Practitioner recorded the Respondent’s history of back injury and disability including the injury occurring in February of 1999. Dr Edwards made the following notation:
“He ceased work on 16/2/99 for 4 weeks, and returned to work from 15/3/99 until 19/7/99. He then took a voluntary redundancy. He said he did light duties driving a winch until that time.”
The content of Dr Cooper’s records have been noted above at [37].
The records of Dr Harbury are noted at paragraph [30] above.
The content of Dr Bracken’s report of 1 March 2007 is noted between [22] and [28] above.
The content of Dr Kleinman’s report of 9 August 2007 is noted between [33] and [35] above.
It may be seen that, notwithstanding the Respondent’s return to 12 hour shifts as noted by Dr Isaacs, it appears that following the injury in February of 1999 there was a change in the nature of the work performed by the Respondent. It is in my view reasonable to conclude that the Respondent did in fact return to work on the tugs following that last recorded back injury. Whether those duties continued up until the date of his retrenchment is not clear. There is no doubt, in my view, that the Respondent’s duties as a Deckhand after February of 1999 were of a significantly different character to that carried out earlier in his career both as a Seaman with the Merchant Navy and as a Deckhand performing full duties.Whilst it may be argued, upon the limited evidence, that the Respondent’s earlier employment aggravated etc the disease of arthritis, I am not satisfied that his employment with the Appellant was such employment.
The Arbitrator has recorded his reservations concerning the “lack of precision” in the Respondent’s Statement which was in evidence before him. It is my view that the weight of that evidence needs to be assessed having regard to the substantial interval between the Respondent’s last date of employment and the making of that Statement, the fact that the Statement was prepared for the purposes of this litigation, the general terminology of the Statement which fails to outline precisely what duties were done in the relevant one month period of employment with the Appellant and the matters as recorded by the various practitioners as I have attempted to outline above. The weight of the Respondent’s evidence is also to be assessed having regard to the correction of history effected by Dr Bracken following the intervention of the Respondent’s Solicitors. The weight of Dr Bracken’s opinion has, likewise, to be assessed having regard to that correction.
There is an onus upon the Respondent to establish that he has in fact suffered an “injury” within the meaning of section 9(1) of the 1987 Act. It is my view that the Respondent has failed to establish that, on the balance of probabilities, he has suffered an injury within the meaning of section 4(b)(ii) in employment with the Appellant. I reach this conclusion upon the basis that the Respondent has failed to establish that the Appellant was “the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration” of the disease being arthritis.
Given my conclusion that the Respondent has failed to prove injury within the meaning of section 9(1) of the 1987 Act, it is unnecessary to address those matters raised by the parties with respect to the proper application of section 9A of that Act.
It may be seen that in my review of the Arbitrator’s decision I have concluded that his finding as to “injury” is wrong and, adopting the words of Spigelman CJ in “Chemler” the “true and correct view” is that no injury in a relevant sense was proven. In those circumstances, I conclude that the Arbitrator’s decision should be revoked. In all the circumstances I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal be corrected without the need to remit the matter for further consideration by an Arbitrator.
DECISION
Having regard to my determination with respect to the issue as to “injury”, I revoke the determination of the Arbitrator dated 23 April 2008 and substitute the following orders:-
(1)Award in favour of the Respondent.
(2)No order as to costs.
COSTS
The Appellant has made application that the Respondent/Worker pay the costs of this appeal. There has been no argument advanced in support of such application. In all the circumstances I make no order as to costs of this appeal.
KEVIN O’GRADY
Acting Deputy President
22 September 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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