J T Hiscutt and Sons v Moore (No 2)

[2001] TASSC 108

[2001] TASSC 108

CITATION:                 J T Hiscutt & Sons v Moore (No 2) [2001] TASSC 108

PARTIES:  J T HISCUTT & SONS
  v
  MOORE, John Clarence

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 2/2001
DELIVERED ON:  4 September 2001
DELIVERED AT:  Hobart
HEARING DATES:  10 May 2001
JUDGMENT OF:  Blow J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Question of law - What constitutes - Rejection of expert's opinion.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, referred to.
Aust Dig Workers Compensation [161]

REPRESENTATION:

Counsel:
             Appellant:  C N Dockray
             Respondent:  A I Gaggin
Solicitors:
             Appellant:  C N Dockray
             Respondent:  Murdoch Clarke

Judgment Number:  [2001] TASSC 108
Number of Paragraphs:  19

Serial No 108/2001
File No LDR LCA 2/2001

J T HISCUTT & SONS v JOHN CLARENCE MOORE (No 2)

REASONS FOR JUDGMENT  BLOW J

4 September 2001

1. This is an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"): [2001] TASWRCT 20.  It concerns the eligibility of the respondent for weekly payments of compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act").

1. The respondent was employed by the appellant as a farm hand. Before the Tribunal, it was common ground that he had suffered some sort of back injury in August 1997, and that he suffered further injuries to his back at work on 22 and 23 April 1999. He did not return to work after 23 April 1999. He made a claim for compensation under the Act on 27 April 1999, and commenced receiving weekly payments of compensation.

1. On 1 March 2000 the appellant, relying on the Act, s86(1)(c), served on the respondent a certificate of a Dr Ulman and a s86(3)(a) notice advising of its intention to terminate the weekly payments. They were subsequently terminated. The respondent referred the matter to the Tribunal pursuant to s86(4). The Tribunal determined that the certificate did not satisfy the requirements of s86(1)(c). The appellant appealed. On 5 September 2000 Underwood J held that the Tribunal had erred in law in determining that the certificate did not satisfy s86(1)(c), allowed the appeal, and remitted the matter to the Tribunal to be determined in accordance with law: J T Hiscutt & Sons v Moore [2000] TASSC 125.

1. Meanwhile, following the adverse decision in the Tribunal, the appellant obtained a fresh certificate from Dr Ulman dated 22 June 2000, and served it on the respondent. His weekly payments either did not resume, or were terminated a second time. I am not sure which. On 26 September 2000 the respondent referred the matter to the Tribunal pursuant to s86(4). The Tribunal began to hear the remitted matter and the new referral together. On the second day of the hearing, counsel for the appellant advised the Tribunal that he could not establish, in relation to the remitted matter, that ten clear days had elapsed between service of the s86(1)(c) certificate and the s86(3)(a) notice and the termination of weekly payments, and that he was therefore instructed not to proceed further in relation to that matter. Plainly the appellant was unable to discharge the onus of proof imposed by s49(2)(b). Accordingly, the hearing proceeded only in relation to the second referral. The learned Commissioner made a determination in favour of the respondent, and ordered "that weekly payments of compensation be resumed by the employer, same to be paid in accord with the Act and to commence from the date of termination". It is from that determination that the appellant has appealed.

1. Before the Tribunal, the appellant's case was based on an opinion expressed by Dr Ulman in his second certificate, and adhered to by him in his oral evidence, to the effect that (a) the respondent was so vulnerable to a back injury that, even if the events of 22 and 23 April 1999 had not occurred, it was inevitable that he would have experienced further traumas and as a result become incapacitated on or by 29 December 1999 (the date that he examined him); and (b) that it followed that the respondent's ongoing incapacity was thereafter no longer due wholly or substantially to the effect of the April 1999 injuries, the effects of which would have been overtaken by inevitable subsequent events.  Dr Ulman's opinions were contradicted by a neurosurgeon, Mr Rossi, who gave evidence for the respondent.  Mr Rossi conceded that, without the April 1999 injuries, it was possible that the respondent could have suffered further injuries of a trivial and unremarkable nature, and become incapacitated as a result.  But he disagreed with Dr Ulman's opinion that such injuries and a resulting incapacity were inevitable.  The learned Commissioner did not accept Dr Ulman's opinion, and therefore made a determination in favour of the respondent. 

1. By virtue of definitions in the Act, s3(1), "any ailment, disorder, defect or morbid condition, whether of sudden or gradual development" constitutes a "disease", and a "disease" constitutes an "injury". By virtue of s25(1), if a worker suffers a disease, arising out of and in the course of his or her employment, and to which his or her employment contributed to a substantial degree, the employer is liable to pay compensation to that worker in accordance with the Act, except as otherwise provided by the Act. By virtue of s3(2A), "employment is taken to have contributed to a disease to a substantial degree if it is the major or most significant factor". By virtue of s69(1), subject to certain formal requirements, weekly payments of compensation are payable to a worker "where total or partial incapacity for work results from an injury suffered by" that worker. The Tribunal may make determinations terminating weekly payments under s88(2). Otherwise, s86(1) prohibits the termination of weekly payments, except in certain situations, which it lists. The only such situation relevant for present purposes is that referred to in s86(1)(c), ie, where "an accredited medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury".

1. Dr Ulman having provided such a certificate, and the respondent having referred the matter to the Tribunal, the question for the Tribunal was whether the respondent continued to be entitled to receive weekly payments by virtue of s69(1).  The words "the worker's incapacity is no longer due, wholly or substantially, to that injury" refer to the same test of causation as the words "total or partial incapacity for work results from an injury" in s69(1).  See Osborne v EST Hotel Enterprises Pty Ltd (1992) 1 Tas R 318 at 330. The onus of proving that a worker is no longer entitled to the payment of compensation lies upon the employer by virtue of s49(2)(b).

1. The learned Commissioner made findings of fact, which are not challenged in these proceedings, to the effect that (a) as a consequence of events occurring at work on 22 and 23 April 1999, the respondent suffered an injury to his lower back; (b) the injury involved the spinal structure at least at L4/5; and (c) the injury caused him to be incapacitated for work as a farm labourer, and that such incapacity existed when Dr Ulman examined him on 29 December 1999 and continued to the date of an examination by Mr Rossi on 8 August 2000, so that he was similarly incapacitated as at 22 June 2000, the date of Dr Ulman's second certificate.  The learned Commissioner's reasoning leading to the rejection of Dr Ulman's opinions appears in pars14 and 15 of his reasons, which read as follows:

"14Notwithstanding Dr Ulman's acceptance that the worker's incapacity presenting at the time of his examination was caused by the work injury suffered in April 1999, it was nevertheless submitted for the employer that because of the underlying condition of the worker's low back, it was inevitable that in the eight month period to 29 December 1999 the worker, as a result of some minor trauma, would have suffered that same incapacity had the injury in April 1999 not occurred.  It was said that any one of those everyday activities identified by Dr Ulman in his evidence was capable of causing the minor trauma necessary to produce that same incapacity.  In these circumstances, it was submitted that the employer's liability to pay weekly payments to the worker was limited to the period that the worker's injury in April 1999 had accelerated his incapacity and that period had passed by the time of Dr Ulman's examination.  See for example Smith v Australian Newsprint Mills Ltd 82/1971.

15The employer's submission is of course totally dependent upon the evidence of Dr Ulman.  As indicated by his certificate, Dr Ulman based his opinion on four factors, namely the worker's known 1997 injury, his pre April 1999 work and non work activities, his imaging results and the minor trauma causing injury on 22 April and 23 April 1999.  All of these factors led to his hypothesis of an inevitable incapacitating injury occurring before 29 December 2000 in the event of the worker not having been injured in the previous April.  However, of these factors, it was clear to my mind that Dr Ulman placed particular emphasis on the trivial nature of those two incidents occurring in April 1999.  Those incidents, by their nature, were in his opinion very strong indicators of the vulnerable condition of the worker's low back and its susceptibility to an incapacitating injury, even from minor trauma.  I have come to the view that I am not satisfied on the balance of probabilities that the worker would, either by the time of Dr Ulman's examination or by the date of his certificate have inevitably suffered injury causing similar incapacity had the injury in April 1999 not occurred.  This conclusion necessarily involves a rejection of Dr Ulman's opinion.  As I have noted, in forming his opinion Dr Ulman placed considerable weight upon the trivial nature of those events causing injury in April 1999.  This in my view is an unsafe basis for Dr Ulman's opinion when all of the evidence upon the worker's pre-April work activity is considered.  In my view it is clear on the evidence and I so find that for the approximate 16 month period to 21 April 1999 the worker continued his work as a farm labourer, his duties, as described by Mr Hiscutt, including picking up potatoes, stock work, running out electric fences and tractor driving.  To my mind those duties would have exposed the worker to demands upon his low back of at least a trivial nature if not moreso [sic] yet the worker was able to survive those demands without suffering any incapacitating injury (although I accept that he experienced some intermittent pain and had the occasional day off).  Those circumstances are in my view contra-indicative of Dr Ulman's opinion that the worker would inevitably have suffered an incapacitating injury within a relatively short period from April 1999 because of the vulnerable state of his low back.  Further, my disinclination to accept Dr Ulman's views is strengthened by the fact that Dr Ulman has not referred to any recognised medical literature which supports the methodology upon which he founded his conclusions.  Instead, I favour Mr Rossi's view that the opinion of Dr Ulman, when considered n all of the circumstances is conjectural and hypothetical only.  I am not persuaded to accept it."

1. The notice of appeal lists seven grounds.  Grounds 1 and 2 essentially assert that it was not reasonably open to the learned Commissioner to make a determination in favour of the respondent.  Mr Dockray relied on a number of factors which, he submitted, combined to make the acceptance of Dr Ulman's opinions the only course reasonably open.  These comprised the fact that the respondent had suffered a significant injury in August 1997; the fact that he had been partially incapacitated as a result; the nature of the respondent's work and non-work activities before and after April 1999; radiological evidence suggesting no detectable changes resulting from the April 1999 events; the triviality of the trauma in April 1999; evidence of Dr Ulman that the April 1999 incidents involved similar physical movements to everyday non-work activities; the fact that neither the respondent, his general practitioner, nor his orthopaedic surgeon gave evidence; and a lack of understanding on Mr Rossi's part as to the respondent's activities after May 1999.  Mr Dockray submitted that, in the light of these factors, the only conclusion one could deduce was that the respondent would inevitably have been incapacitated as a result of trivial trauma by the relevant time.  He referred me to a piece of evidence that Mr Gaggin elicited from Dr Ulman by persistent cross-examination, to the effect that the issue is an epidemiological one; that Dr Ulman is a trained epidemiologist; and that Mr Ross is not.

1. However well qualified Dr Ulman is, and however compelling the evidence suggesting an inevitability of incapacity might have been, I do not think it follows that, as a matter of law, the learned Commissioner was obliged to accept Dr Ulman's opinion.  In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 - 156, Glass JA, dealing with a submission to the effect that a judge at first instance had been obliged as a matter of law to make a particular finding, said the following:

"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654."

1. In my view the evidence before the Tribunal was not such as to compel, as a matter of law, a finding that the respondent would inevitably have become incapacitated by the time of the Tribunal's determination or any earlier time.  Any tribunal of fact would need a great deal of confidence in order to make a finding that anything was inevitable.  In this case, the expert opinion evidence of Dr Ulman as to inevitability was contradicted by the opinion evidence of another well-qualified expert, Mr Rossi, to the effect that the suggested outcome, while possible, was not inevitable.  In those circumstances, it must have been open to the learned Commissioner not to accept the opinion of one expert in preference to the other.  Grounds 1 and 2 must fail.

1. Ground 3 attacked the comment by the learned Commissioner in par15 of his reasons that the appellant's submission was "totally dependent upon the evidence of Dr Ulman".  It raises an argument that, properly understood, the appellant's case was that the undisputed primary facts made it reasonable for the Tribunal to infer that, by the date of Dr Ulman's examination on 29 December 1999, there was a probable inevitability of incapacity.  As a matter of logic (as distinct from common sense), I suppose the learned Commissioner could have ignored Dr Ulman's opinion evidence, considered the evidence as to the primary facts, and reached the same conclusion as Dr Ulman.  This seems to be what ground 3 is asserting.  However, the substantial question that the learned Commissioner had to consider was whether he was satisfied that the conclusion that Dr Ulman had come to was a correct one.  As a fact-finder, he was entitled to treat the expert opinion evidence of Dr Ulman as being of critical importance in that context.  The passage complained of simply reflects the fact that he treated Dr Ulman's evidence in that way.  He did not give it a false importance and thereby err in law.  Ground 3 must fail.

1. Grounds 4 and 5 attack the learned Commissioner's comment, in the middle of par15 of his reasons, to the effect that the placing of considerable weight upon the trivial nature of the events that caused injury to the respondent in April 1999 was "an unsafe basis" for Dr Ulman's opinion, when all of the evidence as to the respondent's earlier work activity was considered.  These grounds merely assert that the learned Commissioner erred in giving less weight to some pieces of evidence than to others.  They do not raise any question of law.  They must fail.

1. Ground 6 attacks the learned Commissioner's observation in par15 of his reasons that "Dr Ulman has not referred to any recognised medical literature which supports the methodology upon which he founded his conclusions".  This ground contends that the learned Commissioner thereby erred in law because there was evidence that there was no such medical literature.  If there was evidence to that effect, the learned Commissioner was not obliged by law to say so.  It was open to him to use the fact that Dr Ulman had not expressly relied on any recognised medical literature in deciding whether or not to accept the opinion that he expressed.  No error of law has been demonstrated.  This ground must fail.

1. Ground 7 reads as follows:

"(7)The learned Commissioner erred in law when he failed to make any findings or state reasons which identified, or in any way considered, Dr Ulman's four factors identified in paragraph 18 of his certificate, as to whether those factors, either individually or collectively, established proof on the balance of probabilities in respect of the matter to be determined by the Tribunal."

1. The "four factors" appear to be those referred to in the following passage in par18 of Dr Ulman's certificate of 22 June 2000:

"In other words, with knowledge of Mr Moore's pre 22.4.1999 low back history, his pre 22.4.1999 work and non work activities, all his imaging results, and the minor trauma of the 22.4.1999 and 23.4.1999 incidents, in my opinion hypothetically had the 22.4.1999 and 23.4.1999 incidents not occurred, on the balance of probabilities, Mr Moore would have found himself, by the date of my 29.12.1999 examination, with a similar partial work incapacity due to a similarly trivial trauma arising from an inevitable trivial and unremarkable event which would have occurred between 23.4.1999 and the date of my assessment on 29.12.1999. [My emphasis.]"

1. The learned Commissioner referred to the same four factors in the second sentence of par15 of his reasons.

1. Mr Dockray submitted that the learned Commissioner only said that it was unsafe for Dr Ulman to place weight on the trivial nature of the two April 1999 incidents, and stated no reasons as to why he considered that unsafe.  However that submission over-simplified what the learned Commissioner said in par15 of his reasons.  He said, in effect, that placing considerable weight upon the trivial nature of the events that caused injury in 1999 was unsafe when all of the evidence as to the respondent's earlier work activities was considered, and then went to summarise the evidence of a witness, Mr Hiscutt, as to those activities.  He then reasoned that such activities would have exposed the respondent to demands upon his lower back which he was able to survive without suffering any incapacitating injury.  Thus, in my view, he provided a sufficient explanation as to why he rejected the proposition that the four factors relied upon by Dr Ulman established on the balance of probabilities that the respondent would have become totally incapacitated whether the April 1999 injuries had occurred or not.  It follows that ground 7, like all the other grounds, must fail, and that the appeal must be dismissed.

1. Even if the learned Commissioner had accepted Dr Ulman's opinion to have been correct, it might not have followed that the respondent was no longer entitled to weekly payments.  When a work injury aggravates a pre-existing disease, and results in an incapacity that the disease would, in time, have caused, compensation is payable only until the date when the disease would, in any event, have produced the same incapacity: Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 per Barwick CJ at 25. But in this case I think it would have been open to the learned Commissioner, if he had accepted Dr Ulman's evidence, to have reasoned that this was not a case where the gradual development of a disease would in any event have incapacitated the respondent, but one where the respondent would sooner or later have been incapacitated either by an injury occurring at work or one that was not work-related; with the result that, since the incapacitating injury happened to be one that occurred at work, the incapacity resulted from an injury at work, and weekly payments continued to be payable in respect of the incapacity so resulting.