Kaldor v Dolphin Water Taxis
[2006] NSWWCCPD 64
•21 April 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kaldor v Dolphin Water Taxis [2006] NSWWCCPD 64
APPELLANT: Michael George Kaldor
RESPONDENT: Dolphin Water Taxis
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC18167-03
DATE OF ARBITRATOR’S DECISION: 14 April 2004
DATE OF APPEAL DECISION: 21 April 2006
SUBJECT MATTER OF DECISION: Injury; causation; substantial contributing factor and weight of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Michael J McGrowdie
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Cambridge Integrated Services
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 April 2004 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 May 2004 Michael George Kaldor (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 April 2004.
Certain further material was required and the further material was lodged on 20 May 2004.
The Respondent to the Appeal is Dolphin Water Taxis (‘the Respondent Employer’).
The Appellant Worker was born on 22 September 1964. He worked as a casual water taxi driver on Sydney Harbour from about November 2001. The company that employed the Appellant Worker was sold in November 2002. The Appellant Worker continued to be employed by the company which, I understand in May 2003, changed its name to Combined Water Taxis Pty Limited.
Over the period that the Appellant Worker drove water taxis, he also worked on a casual basis as a chef or generally in catering.
In the early hours of 31 July 2003 the Appellant Worker awoke from his sleep at home in Elizabeth Bay, Sydney with severe back pain. At about 6.00 a.m. he was taken by ambulance to St Vincent’s Hospital.
At St Vincent’s Hospital, a history was taken by Dr Park that the Appellant Worker awoke with acute severe left lower back pain after having felt discomfort in the left lower back the night before. The Appellant Worker mentioned that he was a water taxi driver and that the boat he was driving currently had no spring-loaded cushion seat. A past history was taken of a motor vehicle accident 18 months previously when the Appellant Worker suffered some whiplash and back pain which resolved after a couple of months.
There was no issue between the parties that at the time the Appellant Worker presented at St Vincent’s Hospital, he had a left-sided disc protrusion at L5/S1 impinging on the left S1 nerve root. This pathology was revealed on a CT scan performed on 31 July 2003 after attending the Darlinghurst Medical Centre and seeing Dr Duncan that same day.
On 4 August 2003 the Appellant Worker consulted Dr Dianna Staniforth of the Lane Cove General Practice and was referred to Dr Sheehy, Neurosurgeon. The Appellant Worker had previously been treated by Dr Staniforth in relation to the effects of the motor vehicle accident in 2001. This is the motor vehicle accident that the Appellant Worker had given a history of to Dr Park at St Vincent’s Hospital. Dr Staniforth produced a report dated 11 September 2003. According to Dr Staniforth the motor vehicle accident had predominantly given rise to symptoms in the upper thoracic spine.
Dr Staniforth appears not to have been of the opinion that there was a relationship between the developments of symptoms on 31 July 2003 and the 2001 motor vehicle accident. She did, however, issue a certificate in which she indicated that it was her opinion that the Appellant Worker’s employment was a substantial contributing factor to the development of the Appellant Worker’s back symptoms on 31 July 2003. However, this matter was not referred to in the report.
The Appellant Worker then came under the regular care of Dr Grech, General Practitioner at the Darlinghurst Medical Centre in early August 2003. A consultation with Dr Sheehy took place on 11 August 2003 when the Appellant Worker gave a history that the water taxi he had been allocated to drive had changed recently and that the seat was much less comfortable.
The Appellant Worker last worked for the Respondent Employer on the evening of 30 July 2003. Clearly he was unfit on 31 July 2003 as a result of his diagnosed back condition. However, the Respondent Employer maintained that at the completion of his shift on 30 July 2003 it was made known to the Appellant Worker that he had not been given a further roster to work because of poor work performance. According to the Respondent Employer the Appellant Worker was angry as a result.
What this may have meant in terms of future work is not known as the acute onset of symptoms intervened. A submission that the Appellant Worker’s symptoms were not genuine was not really available to the Respondent Employer given the patent pathology and acute symptomatology. However, the Respondent Employer treated with scepticism any connection between the Appellant Worker’s back complaints and his employment.
Apart from not being given a further roster, the Respondent Employer’s shift manager in a written statement before the Arbitrator said that he saw the Appellant Worker hurry back to board his vessel after docking on 30 July 2003 having forgotten something and showed no sign of restriction. It should be noted, however, that the Appellant Worker said in his Statutory Declaration made on 25 February 2004 that he was on roster for an afternoon shift on 31 July 2003 and called the Respondent Employer early in the day on 31 July2003.
However, as previously stated, there can be no question of the Appellant Worker’s incapacity for work on 31 July 2003. Rather, the question was whether this incapacity was causally connected with his employment with the Respondent Employer.
The Arbitrator was not satisfied that the Appellant Worker suffered an injury at work or that his employment was a substantial contributing factor. The Appellant Worker has appealed against the decision of the Arbitrator to the Commission constituted by a Presidential Member.
The claim that came before the Arbitrator was for weekly payments from 17 September 2003 on an ongoing basis. Initially the Appellant Worker relied upon the injury to his back as having occurred on 31 July 2003.
At the commencement of the hearing before the Arbitrator on 12 March 2004 the Appellant Worker sought to amend the date of injury from 31 July 2003 to 30 July 2003. It was not suggested that the Appellant Worker suffered what might be referred to as a frank injury as a result of a single discrete event on the day but rather that the work performed by the Appellant Worker on that day precipitated the back symptoms which developed after the Appellant Worker’s shift had been completed. In particular, it was having to drive a water taxi on this day with an unsprung seat and other difficulties which were relied upon. The Application to Resolve a Dispute described how the injury occurred as a result of “frequent and repetitive bouncing while driving water taxi. Also, frequent and repetitive requirement to bend and twist trunk while operating water taxi.”
In discussions which took place at the hearing regarding the amendment to the injury date, it was submitted on behalf of the Appellant Worker that what was sought to be relied upon was “the effects of his exposure over a considerable period up to the 30th (which) manifested themselves on the 31st…”.
The Respondent Employer raised objection before the Arbitrator to any late attempt by the Appellant Worker to relying on the nature and conditions of employment over an extended period of time rather than simply on 30 July 2003. As a result, the Appellant Worker confirmed that it was the work on 30 July 2003 which would be relied upon as giving rise to the injury. Accordingly, leave was granted to amend.
The hearing then proceeded with the Appellant Worker giving evidence as to his post-injury employment and earnings and cross-examination being confined to such matters. The Appellant Worker did not work as a water taxi driver after 30 July 2003.
Apart from being a water taxi driver, the Appellant Worker had worked in the hospitality industry since the mid 1980’s and held various qualifications as a chef. At times he had worked as a head chef and had even operated his own restaurant. He continued to do some work as a chef whilst working as a water taxi driver.
In late 2003 the Appellant Worker, having been certified as fit to work subject to a five kilogram weight lifting restriction, obtained one six hour shift of catering work through an agency for whom he had done work in the past.
The Appellant Worker gave evidence at the hearing that he had organised several shifts to perform catering work to commence on the following weekend. This work had been organised through a different agency, but again, one for whom he had done work in the past. The Appellant Worker hoped for more work beyond this.
Indeed the Appellant Worker said he was “….looking forward to going back to a full income” and further that he wanted to “…return to full capacity as soon as possible”. The Appellant Worker had also said at the hearing that he was probably more capable than he was in late 2003 and that he generally had improved.
As at March 2004 the Appellant Worker had a medical clearance to work suitable duties five hours per day, five days per week but with no specific weight lifting restriction. He was about to be reviewed again.
The Appellant Worker had an ABN which he obtained prior to ceasing work as a water taxi driver. He had intended to use it for the purposes of doing marine maintenance work. Although he had his own sailing boat and had sailed after ceasing work with the Respondent Employer he did not do any maintenance work for others.
He had made two job applications through an employment agency or agencies for work in the sales area but within the hospitality industry. One had a salary of $58,000 and the other had a base salary of $44,000 plus car package.
In a Statutory Declaration made by the Appellant Worker on 25 February 2004 and which was before the Arbitrator, the Appellant Worker said that he could perform duties in an office environment upon the basis that such duties could be regarded as light.
In the past, the Appellant Worker had required treatment for a Bipolar Disorder and came under the care of Dr Luis, Consultant Psychiatrist. He recovered after two years and when reviewed by Dr Luis on 10 June remained well. The Appellant Worker reported to Dr Luis on 6 January 2004 with a history of having developed back pain after work on 30 August (sic) 2003. In December 2003 he was seen by the Community Mental Health Team. Dr Luis was on holiday at the time.
In his report of 20 February 2004 Dr Luis considered that the Appellant Worker had only recently recovered from the severe symptoms of his relapse of the Bipolar Disorder and was still unfit to return to work. Dr Luis stated that he offered no opinion about the matters raised by Sections 9A and 11A of the Workers Compensation Act 1987 (‘the 1987 Act’), a copy of which Sections were supplied to the doctor by the solicitors for the Appellant Worker and not withstanding that the doctor had been asked to express an opinion.
Section 9A in general terms requires that the worker’s employment be a substantial contributing factor to the injury and Section 11A requires, in the case of an injury that is a psychological injury, that it not be caused by certain reasonable action taken or proposed to be taken on behalf of the employer.
There was no further report from Dr Luis or evidence of ongoing treatment from him. Dr Luis did, however, in his report of 20 February 2004 recommend that the Appellant Worker remain on medication.
There were two reports of Dr Sheehy in evidence. The first was a report dated 12 August 2003 addressed to Dr Staniforth and which related to the initial consultation on 11 August 2003. The second report was a report dated 18 December 2003 which was addressed to the Appellant Worker’s then solicitors, and refers to a review by the doctor on 11 December 2003. Dr Sheehy considered that the Appellant Worker was showing continuing improvement. He further considered that the Appellant Worker was unfit for work involving repetitive heavy lifting or bending at the time and was likely to remain so for at least a further three months which took the matter through to about the time of the hearing.
Dr Sheehy was silent in his reports on the question of the relationship, if any, between the work and the condition.
Although there is no mention by the Appellant Worker in his Statutory Declaration or in his evidence of doing some clerical work at the NAB Head Office after seeing Dr Sheehy the first time, Dr Sheehy records in his report of 18 December 2003 that the Appellant Worker had attempted such work but found it difficult and only did the work for a few days. Dr Sheehy, after noting improvement in the back and left leg, thought it likely that there would be further improvement but did not discount the possibility that there may be a long term restriction against repetitive heavy lifting or bending.
The Appellant Worker also relied on a report dated 23 December 2003 from Dr Grech of the Darlinghurst Medical Centre and also a short report dated 4 August 2003 to a physiotherapist. In the report of 23 December 2003, Dr Grech said that the Appellant Worker first presented at the Centre on 31 July 2003 and that he, Dr Grech, saw the Appellant Worker one week later. Dr Grech saw him again on 25 August 2003, mid September 2003 and 16 October 2003. From 16 October 2003 the Appellant Worker was certified as fit to perform work not involving lifting over five kilograms and advised to avoid excessive forces such as he might have experienced driving a water taxi.
Dr Grech stated that:
“In my medical opinion the driving of a water taxi with its concussive or jarring effects was a likely cause of the injury described. Mr Kaldor gave no history of pre-existing back complaint so it cannot be assumed this was an aggravation of a pre-existing condition.”
Left unexplained by the doctor was the WorkCover medical certificate issued by him on 16 October 2003 being the last day he had seen the Appellant Worker before issuing the report of 23 December 2003. In that certificate, Dr Grech indicated that it was his opinion that it was unknown whether the Appellant Worker’s employment was a substantial contributing factor to the injury.
The same opinion was expressed by the doctor in certificates of unfitness for work issued on 25 August and 6 October 2003. In a certificate issued on 3 March 2004, Dr Grech did not give an indication of any opinion on the same matter but did certify the Appellant Worker fit for full duties as a chef for reduced hours and also for all employment other than employment in which there may be a risk of physical agitation of the back.
Dr Wei Yen, also of the same medical practice as Dr Grech, issued a certificate for the Appellant Worker on 10 September 2003 in which he expressed no opinion as to whether employment was a substantial contributing factor despite the opportunity to express such an opinion being provided for in the form. He considered that the Appellant Worker was fit for selected work at the time. Only two days before, the Appellant Worker obtained a medical certificate from a Dr Trachtenberg of Potts Point that he was unfit for work and containing the opinion that work was a substantial contributing factor. There was no report from Dr Wei Yan or Dr Trachtenberg.
The Respondent Employer had the Appellant Worker examined by Dr Rowe on 2 September 2003. Dr Rowe provided a report dated 4 September 2003 which was before the Arbitrator. Dr Rowe took a history that following his shift the Appellant Worker felt general discomfort when he got home on the evening of 30 July 2003. After having gone to bed he awoke about 1 to 1 ½ hours with pain in the lower back radiating to both legs.
Under the heading of “Past History”, Dr Rowe recorded that:
“In 1997 he fell on some stairs which resulted in low back pain with no sciatica. He also had a knee injury at the time. He was treated with physiotherapy under the care of the North Sydney Orthopaedic & Sport Medicine Centre as well as his general practitioner, Dr ? Bannerjee. He was off work for 8 months at the time.”
In his Statutory Declaration the Appellant Worker stated that although he had suffered injury to his back in the past, it did not involve the low back. He referred to slipping on a stairway while working in mid 1997 and receiving treatment from Dr Barenjee at the North Sydney Medical Centre, with symptoms resolving quickly. There was no report or other material from Dr Barenjee. The Appellant Worker also referred to the motor vehicle accident stating that he had a short period of treatment to the neck and symptoms resolved. The material before the Arbitrator indicated that there were also symptoms in the upper thoracic spine. Dr Sheehy’s reports of 12 August and 18 December 2003 do not address any past injuries. As previously referred to, Dr Grech did not obtain a history of pre-existing back complaint.
Dr Park who examined the Appellant Worker in the emergency department of St Vincent’s Hospital on 31 July 2003, reported on 31 July 2003 that:
“No previous (history) of known disc disease or lumbar fracture.
(Motor Vehicle Accident) 18 months ago which he suffered some whiplash and back pain which resolved after a couple of months.”
The history obtained by Dr Rowe of this motor vehicle accident was set out in his report of 4 September 2003 as follows:
“He was involved in a motor vehicle accident in May 2001. He was the driver of a car that was struck from the rear. This caused some back ache which kept him off work for a couple of weeks.”
In relation to the motor vehicle accident, the Appellant Worker stated in his Statutory Declaration that when he attended the Darlinghurst Medical Centre on 31 July 2003 he was asked by Dr Duncan if he had ever had any previous injuries to his back and that he told Dr Duncan about an injury to his back a few years earlier in a motor vehicle accident in respect of which he was treated by Dr Staniforth.
As has already been referred to, Dr Staniforth indicated in her report of 11 September 2003 that the back pain from the motor vehicle accident was essentially in the thoracic area of the spine as opposed to the low back area. Dr Staniforth last saw the Appellant Worker in relation to the motor vehicle accident on 1 November 2001. Dr Staniforth does not refer to the 1997 fall.
Dr Rowe did not regard the Appellant Worker as being fit for the full duty of a chef or as a water taxi operator as at early September 2003 but considered that he would be able to resume selected duties in these occupations within a few weeks.
The Appellant Worker reported to Dr Rowe that he continued to improve. Dr Rowe records the backache as negligible with discomfort occasionally in the left thigh and intermittent numbness in the left calf which could extend to the left foot.
Dr Rowe concluded in his report of 4 September 2003 that “it is difficult to assess liability with any degree of accuracy”. He went on to state:
“The history is rather vague but there is no history whatsoever of an injury while he was operating a water taxi. The pain in fact developed while he was in bed and thus liability would seem to be attributable to being in bed rather than operating a water taxi. "
Dr Rowe’s statement does tend to lack precision in terms of what he was intending to convey. One is left with the impression that what he is saying is that as there was no frank injury at work then, on balance, he would not attribute the back condition to work
There is nothing to suggest that the Appellant Worker was seen again by Dr Rowe.
THE DECISION UNDER REVIEW
The Certificate of Determination of 14 April 2004 records the Arbitrator’s orders as follows:
“1. Application is dismissed;
2.The Respondent to pay the Applicant’s costs as agreed or assessed.”
The Arbitrator correctly outlined the issues in dispute as:
(a)whether the Appellant Worker received an injury on 30 July 2003 arising out of or in the course of employment, and if so
(b)whether the Appellant Worker’s employment was a substantial contributing factor, and if so
(c)whether the injury resulted in a total or partial incapacity for work, and if so
(d)the duration of such incapacity.
In considering the question of whether the Appellant Worker suffered an injury on 30 July 2003, the Arbitrator stated at para 16 of her Reasons for Determination that:
“…he has consistently reported that he arrived home (following his shift) feeling irritable and uncomfortable, fell into bed and awoke shortly after with acute and disabling back pain that radiated into both legs.”
The Arbitrator then stated at para 19 that:
“The (Appellant Worker) offers a plausible explanation (for his back symptoms) namely that the jarring effects of the boat irritated his back.”
But then goes on to state at para 20 that:
“The (Appellant Worker’s) beliefs as to what caused his problems, however genuine, are just that, beliefs. He is not qualified to offer a medical opinion on causation.”
Reference was made to the only two reports from doctors who give reasons for their opinions on causation, namely Drs Rowe and Grech. It is pointed out by the Arbitrator that “Dr Rowe concedes that it is difficult to accurately assess causation…..(but) doubts it is work-related.” The Arbitrator then contrasts this with the opinion of Dr Grech.
Particularly relevant to an understanding of the Arbitrator’s reasoning process are the passages set out hereunder which are taken from the Arbitrator’s Reasons for Determination:
“22.It would appear that Dr Grech’s opinion was based on a false premise. The Applicant had in fact injured his back prior to July 2003. In 2001 he was involved in a motor vehicle accident that resulted in a few days off work. In mid-1997 he injured his back while at work. According to the Applicant each incident involved his thoracic spine not his lower back.
23.It may be that Dr Grech incorrectly recorded the Applicant’s history or that his opinion would have been the same had he known of these earlier injuries. Alternatively he may have been aware of these earlier incidents but was of the view that any problem had now resolved and did not constitute a pre-existing condition.
24.Whatever the explanation, I have simply no way of knowing with any certainty whether Dr Grech took account of these earlier episodes or, had he, whether his opinion would be the same. Given this it is difficult to place any great weight on his opinion.
25.A further difficulty with Dr Grech’s evidence is that no explanation has been provided to answer the apparent discrepancy between the opinion expressed in his report of 23 December 2003 and that set out in the WorkCover certificates issued by him. In each of these four certificates he wrote that the cause of the Applicant’s condition was ‘unknown’.
26.While Doctors Trachtenberg and Stainfoth (sic) both certified that the Applicant’s injury was caused by work I have no material before (me) which might assist my understanding of how they came to that conclusion.”
The Arbitrator goes on to say that contrary to Dr Rowe’s opinion, it is possible that injury to the Appellant Worker’s back resulted from the jarring of the back whilst driving water taxis on 30 July 2003. However, the Arbitrator was not satisfied on the evidence before her that it was more probable than not that the Appellant Worker suffered injury to his back because of the work he performed on 30 July 2003 and that such work was a substantial contributing factor to the injury. In other words, the Appellant Worker had failed to discharge the onus of proving injury within the meaning of the 1987 Act on the balance of probabilities.
ISSUES IN DISPUTE
The issues in dispute are:
(a)Whether the Arbitrator erred in concluding that the Appellant Worker had not, on the balance of probabilities, established that he suffered an injury to his back due to the nature and conditions of his employment with the Respondent Employer on 30 July 2003, and if so
(b)Whether the Appellant Worker’s employment was a substantial contributing factor to the injury.
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.”
In a document headed ‘Application for Oral Submissions’ by the Appellant Worker and which formed part of the Application, the Appellant Worker submitted that in considering the Appellant Worker’s argument that he has established that his employment was a substantial contributing factor, a fair result would be promoted if both parties were present at the appeal. Further, the Appellant Worker submitted that oral submissions, limited in time, would assist the Commission in determining whether the claim should have been rejected by the Arbitrator in circumstances where the Arbitrator accepted the Appellant Worker as a credible witness with genuine pathology.
For the Respondent Employer’s part it was submitted in the document headed ‘Respondent’s Written Submissions in Reply’ lodged in respect of the appeal, that:
“If the Commission is contemplating allowing the appeal in any respects the Respondent would wish to make oral submissions.”
Whilst taking into consideration the submissions made by the parties, I am satisfied, having regard to Practice Directions 1 and 6 and the documents before me, that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is an 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.
Relevantly, the appeal was lodged within 28 days of the Arbitrator’s primary decision in compliance with section 352(4) and the amount of compensation in issue on appeal in both (a) at least $5,000 and (b) at least 20% of the amount awarded in the decision appealed against.
Leave is hereby granted to the Appellant Worker to appeal against the decision of the Arbitrator.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Neither party has sought leave to give evidence on the appeal that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against.
EVIDENCE AND SUBMISSIONS
Accordingly, the evidence on the appeal is the evidence that was before the Arbitrator.
The first ground of appeal is that the Arbitrator erred in not considering that the Appellant Worker’s injury could have been caused or aggravated by the nature and conditions of his employment.
The Appellant Worker’s submissions in relation to this ground includes reference to a letter dated 10 September 2003 from the Appellant Worker’s then solicitors to the solicitors for the Respondent Employer requesting further and better particulars and to the reply thereto dated 20 January 2004. None of this material was before the Arbitrator or sought to be introduced by way of fresh evidence on the appeal. In the letter of 10 September 2003 the Respondant Employer asked "At what time of the day is it alleged the injury occurred." The reply in the letter of 21 January 2004 was:
"The (Appellant Worker’s) injury was caused by the cumulative effect of operating the water taxi designated TA 11, and other vessels owned by the (Respondent Employer). As such there is no specific time that can be pinpointed when the injury occurred"
In any event, this material does not take the matter any further having regard to the amendments made at the commencement of the hearing. The Arbitrator did state at para.20 that:
“It is to be noted that the claim is made in respect of an injury that arose on 30 July 2003, not in respect of an injury that resulted from the ‘nature and conditions of the (Appellant Worker’s) employment.”
However, it is clear that what the Arbitrator was intending to convey was the distinction between the reliance by the Appellant Worker on the events of 30 July 2003 on the one hand, and, a wider reliance on the general nature and conditions of employment not limited to 30 July 2003 but extending over a greater period of time.
This is made evident by examining what the Arbitrator stated at para 19, namely
“The key issue is not whether the (Appellant Worker) suffered a back injury but what caused it. The (Appellant Worker) offers a plausible explanation namely that the jarring effects of the boat irritated his back. On the day of injury he had been driving water taxi, ‘TA11’, which he claims was uncomfortable and irritating to operate. He claims that prior to injury he had reported it to management that he found the driver’s seat offering inadequate back support and was in an awkward position.”
Also relevant is the amendment made by the Appellant Worker at the commencement of the hearing on 12 March 2004 when the date of injury was amended from 30 July 2003 to 31 July 2003 and specifically limited to that day with a disavowment of any reliance on nature and conditions of employment other than on that day.
That is how the Appellant Worker chose to proceed and it is the basis upon which the matter proceeded, namely that it was the activities engaged in at work on 30 July 2003 that were relied upon.
It was never suggested that the Appellant Worker suffered a single frank, discrete, traumatic accident on that date and this is recognised by the Arbitrator who at para 20 states:
“In a case such as where there is no identifiable trauma or accident the expert medical evidence takes on significant weight.”
The Arbitrator then examined and reviewed the medical evidence in terms of whether that evidence as a whole supported the proposition that it was more probable than not that the Appellant Worker’s back condition was causally related to the work he performed. It would appear that had the Arbitrator had been satisfied that a causal connection between the work and the back condition there was no issue that such work was performed on 30 July 2003.
The Arbitrator, however, was not satisfied that the Appellant Worker had established on the balance of probabilities that there was a causal connection between his employment as a water taxi driver and the back condition.
The second ground of appeal is in effect that in determining whether the Appellant Worker’s employment was a substantial contributing factor to the injury, it was necessary for the Arbitrator to take into consideration the Appellant Worker’s own evidence of the duties he had to perform and the effect that those duties had on him. The Appellant Worker submitted that the Arbitrator failed to do this and takes issue with the Arbitrator’s statement in her Reasons for Determination at para 20 that:
“…The (Appellant Worker’s) beliefs as to what caused his problems, however genuine, are just that, beliefs.”
At para 27 the Arbitrator also said:
“The subjective views of the injured worker, however genuine, do not represent an adequate basis for reaching a finding on causation especially in a case such as this where there is no report of injury or trauma occurring at work.”
The Appellant Worker submits that there was no question of him exaggerating his symptoms or having an established back condition. However, what was exercising the mind of the Arbitrator was the question of the connection of the back condition to the work.
When the Arbitrator referred in the passage quoted above to there being “no report of injury or trauma occurring at work” she clearly is referring to the absence of a single, discrete, traumatic event such as a fall, as opposed to an allegation of the nature and conditions of employment. Indeed the Arbitrator refers to the Appellant Workers contention that the boat being uncomfortable and irritating to operate and that the driver seat, which was in an awkward position, offered inadequate back support and caused jarring to his back.
There is nothing to suggest that the Arbitrator did not accept this evidence. Accordingly, that was established evidence in the matter upon which the Arbitrator was obliged to have regard.
Essentially, the question is whether the Arbitrator was in error in concluding that this evidence, in the absence of an acceptance of the opinion of Dr Grech in his report of December 2003, was not sufficient to discharge the onus of proof on the Appellant Worker to show that this employment was a substantial contributing factor to his incapacitating back condition.
In the Arbitrator’s view this issue of causation was not one that could be determined solely on the evidence of the Appellant Worker but required the opinion of a suitably qualified expert.
This accords with the well-established decision of the Court of Appeal in Australian Iron & Steel Pty Limited v Jansen C.A. 443 of 1982 (5 September 1983) where the question was whether a worker’s deafness was connected with his employment. There was no dispute that the worker had deafness and that the employment was noisy. However, the Court held that the worker’s own evidence that the work was noisy was not sufficient to establish a connection between the noise and his condition. As stated by Glass JA, evidence of such a connection “…was evidence which the (worker) lacked, the expertise to give”.
The Courts have sometimes leaned towards what might be described as a common sense approach to causation (see Kooragang Cement Pty Limited v Bates [1994] 10 NSWCCR 796), however, in Victims Compensation Fund Corporation v Ainsworth & Anor (2001) NSWCA 92 where the Court of Appeal was dealing with a matter which arose out of a victim’s compensation claim, Mason P. stated at para 27 that:
“Whether or not a primary victim has received a compensable injury ‘as a direct result’ of a particular act of violence may involve a difficult issue of causation. The issue may be one upon which different tribunals of fact legitimately reach opposite conclusions. It is not necessarily a simple matter of common sense, notwithstanding frequently encountered judicial injunctions for robust fact-finding on such a basis….A determination that the necessary causal link is present or absent will usually involve a question of fact, although the reasoning process may reveal an error law in that the tribunal of fact misdirected itself as to the correct approach to the issue.”
In the present case the requirement imposed by Section 11A of the 1987 Act is that the employment concerned “was a substantial contributing factor to the injury”.
The decision of the Court of Appeal in Mercer v ANZ Banking Group Limited (2000) NSWCA 138 makes it clear that the section refers to employment that is a substantial factor and not necessarily the only contributing factor. The contribution, however, has to be substantial. Mason P at para 7 said, in reference to the section, that:
“Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue.”
His Honour then referred at para 27 to a passage in the judgment appealed against where the trial judge held that ‘substantial’ meant ‘more than minimal, large or great’ and stated that:
“In my view this was the correct approach remembering that word is used in a selective sense….”
In conclusion at para 38 His Honour stated that:
“It may be thought that this construction of s.9A leaves a broad area within which the personal judgment of the individual Judge as to what is ‘substantial’ may be determinative. So be it, if the legislation uses this language.”
Important therefore is whether the Arbitrator fell into error in rejecting the opinion of Dr Grech. This is raised by the Appellant Worker as the third ground of appeal. The Appellant Worker submits that the Arbitrator’s rejection of the opinion of Dr Grech upon the basis that Dr Grech did not have a history of the 1997 slipping on stairs and the 2001 motor vehicle accident is largely irrelevant given the Appellant Worker’s Statutory Declaration of 25 February 2005 that neither accident related to his low back.
That the motor vehicle accident predominantly gave rise to symptoms in the upper thoracic region is confirmed by the report of Dr Staniforth of 11 September 2003. Dr Staniforth did state, however, that the Appellant Worker was still only fit to work for half days nearly four months after the accident. In his Statutory Declaration the Appellant Worker had stated that “I had a short course of treatment to my neck and the symptoms resolved."
Contrary to the Appellant Worker's statement that the 1997 injury caused symptoms in his thoracic spine and that symptoms resolved quickly, Dr Rowe took the history that the Appellant Worker had injured his low back and was off work for 8 months. Although what is stated by Dr Rowe in his report of 4 September 2003 was recorded as a history, it does add support to the expressed concerns of the Arbitrator in relation to Dr Grech’s apparent reliance on the absence of any history of pre-existing back complaints.
In relation to the 1997 and 2001 incidents, the Arbitrator was aware that, “According to the (Appellant Worker) each incident involved his thoracic spine not his lower back”(para 22 of the Reasons for Decision).
The Arbitrator states at paras 23 and 24 that:
“It may be that Dr Grech incorrectly recorded the Applicant’s history or that his opinion would have been the same had he known of the earlier injuries. Alternatively he may have been aware of these earlier injuries but was of the view that any problem had now resolved and did not constitute a pre-existing condition.
Whatever the explanation, I have simply no way of knowing whether Dr Grech took account of these earlier episodes or, had he, whether his opinion would be the same. Given this it is difficult to place any great weight on his opinion.”
Of further concern to the Arbitrator was what the Arbitrator described at para 25 as “apparent discrepancy between the opinion expressed in his report of 23 December 2003 and that set out in the WorkCover certificates issued by him.”
Having regard to these matters, the Arbitrator has provided a reasoned basis for not placing reliance on the opinion expressed by Dr Grech that the likely cause of injury was the driving of the water taxi and its jarring effects.
The fourth ground of appeal is that the Arbitrator erred in finding in the absence of any evidence, that the Appellant Worker’s disc prolapse could have occurred spontaneously given that there was no evidence from Dr Rowe that such spontaneous disruption could occur.
The basis for this ground would appear to be that unless the Arbitrator was able to conclude that the Appellant Worker’s disc prolapse could have occurred spontaneously then the only conclusion open to the Arbitrator was that it was causally related to his work.
The difficulty with this argument is that it is not for the Respondent Employer to disprove that the Appellant Worker’s back condition was causally related to his employment but rather the onus is upon the Appellant Worker.
Certainly, if there is reliable evidence to support a causal connection then it would be incumbent upon the Respondent Employer to bring affirmative evidence to support a contrary conclusion being reached.
Having assessed the opinion expressed by Dr Grech as unreliable, the Arbitrator was not satisfied on the balance of probabilities that there was a causal connection between the Appellant Worker's employment and his back condition.
The fifth ground of appeal is that the Arbitrator should have regarded Dr Sheehy as having accepted a causal link because Dr Sheehy did not raise any concern about whether the history given to him by the Appellant Worker about the work duties provided an explanation for the development of the disc prolapse.
As noted by the Arbitrator, Dr Sheehy, who was the Appellant Worker’s treating specialist, in fact offered no opinion on causation but simply recorded the history given to him. Whilst the absence of an opinion would not lead to an inference that the doctor held an opinion that was unfavourable to the Appellant Worker it does not lead to an inference that the doctor held an opinion favourable to the Appellant Worker.
The Respondent Employer lodged written submissions in relation to the appeal. Those submissions refer to the Appellant Worker’s case having proceeded upon the basis of an injury alleged to have occurred on 30 July 2003 but concedes that there was evidence that the Appellant Worker "experienced significant symptoms on 30/31 July 2003".
The Respondent Employer submits that the Arbitrator looked at all the evidence and was unable to place any particular weight on the medical opinion proffered in support of the claim. It was further submitted that there was no error disclosed in the Arbitrator’s application of section 9A.
In relation to the report of Dr Grech of December 2003, the Respondent Employer submits that the Arbitrator did give weight to it and did give consideration to it but concluded that it was unreliable and accordingly did not place any great weight on Dr Grech’s opinion. The Respondent Employer refers to the decision of the Court of Appeal in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 and the importance of the opinion of an expert being based on established facts.
A further submission of the Respondent Employer was that the report of Dr Rowe did support the conclusion “that liability ought not be attributed to operating the water taxi.”
The Respondent Employer submits that it was for the Appellant Worker to prove on the balance of probabilities that injury occurred in compensable circumstances and that the Arbitrator clearly identified the reasons as to why she was not so satisfied.
With regard to the report of Dr Sheehy, the Respondent Employer submitted that it was neutral on the issue of causation and that this is how it was treated by the Arbitrator.
Finally, the Respondent Employer submits that the appeal does not expose any error on the part of the Arbitrator but is rather an expression of dissatisfaction on the part of the Appellant Worker.
DISCUSSION AND FINDINGS
The fact that the Arbitrator has come to a particular conclusion, is of course, not the primary consideration. In Buckley v Victims Compensation Corporation (2004) NSWSC 513, Greg James J, after referring to a finding by a magistrate that the applicant was seriously affected by a psychological or psychiatric disorder, stated at paras 34 and 35 that:
“34.It remained for the magistrate to determine whether that serious affectation and substantial incapacitation amounted to a condition that was, overall, within the meaning as he found it to be, of the statutory compound phrase ‘severely disabling’.
35.It is not to the point that I might disagree with his conclusion…”
It is within the province of a tribunal to accept or reject evidence of a fact: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 155.
In my view it was open to the Arbitrator to discount the opinion expressed by Dr Grech for the reasons given and to have concluded that she was not satisfied on the balance of probabilities that the Appellant Worker had established a causal connection between his employment and his back condition such as to conclude that the Appellant Worker had suffered an injury arising out of or in accordance with his employment within the meaning of section 4 of the 1987 Act.
In Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73 Deputy P Fleming stated that:
“An Arbitrator’s decision should not be disturbed unless, on review, it contains an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).”
I do not consider that the decision of the Arbitrator involved an error of law, fact of discretion. The decision reached by the Arbitrator was one that was open to her on the balance of the evidence before her.
The weight to be attributed to particular evidence is a matter largely within the discretionary judgment of the Arbitrator. As stated by Deputy P Fleming in Allesch at para 40:
“interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Even where evidence is of doubtful weight a decision maker may rely upon it so long as it is relevant and so long as it was open to the decision maker to reach the ultimate conclusion in reliance of that evidence (See Northern Rivers Charity Racing Association & Lloyd & Anor (2002) NSWCA 129). However, that is a matter within the discretion of the decision maker.
DECISION
In these circumstances, I find that the decision of the Arbitrator should be confirmed.
COSTS
I make no order in respect of costs of the appeal.
In relation to the order made by the Arbitrator that the Respondent Employer pay the Appellant Worker’s costs, the Respondent Employer wrote to the Commission by letter dated 15 April 2004 to the effect that in the view of the Respondent Employer the Arbitrator had made an error.
Although not the usual order, there is nothing to suggest that the Arbitrator has not exercised her discretion to make the orders she did.
It would not have been available to the Respondent Employer to appeal in relation to this order for costs, as there is a threshold in section 352 of the 1998 Act that the amount of compensation in issue be at least $5,000. As costs are not compensation there is no provision for the grant of leave (See Grimson v Integral Energy [2003] NSW WCC PD 29). The matter does not arise in the current appeal brought by the Appellant Worker and there is no challenge by the Appellant Worker in respect of that order.
Michael J McGrowdie
Acting Deputy President
21 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL J McGROWDIE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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