Kelly v Western Institute NSW TAFE Commission
[2010] NSWWCCPD 71
•6 July 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 | |||||
| APPELLANT: | Kevin John Kelly | |||||
| RESPONDENT: | Western Institute NSW TAFE Commission | |||||
| INSURER: | GIO General Limited | |||||
| FILE NUMBER: | A1-7822/09 | |||||
| ARBITRATOR: | Ms R Gurr | |||||
| DATE OF ARBITRATOR’S DECISION: | 22 February 2010 | |||||
| DATE OF APPEAL DECISION: | 6 July 2010 | |||||
| SUBJECT MATTER OF DECISION: | Injury; compensation for a consequential loss; pleadings; need for claims to be properly particularised; assessment of evidence | |||||
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Messenger & Messenger | ||||
| Respondent: | Rankin Nathan Lawyers | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 22 February 2010 is revoked and the matter remitted to a different Arbitrator for re-determination. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. Costs of the first arbitration and of the second arbitration are to follow the event of the second arbitration. | |||||
BACKGROUND
The appellant worker, Kevin Kelly, commenced work for the respondent employer at Orange TAFE as a security officer in February 1995. His duties required him to walk long distances and regularly ascend and descend stairs and ladders.
Mr Kelly injured his left knee on 4 May 2006 when he twisted while getting out of a car in the course of his employment. As a result of that incident, he suffered meniscal damage and aggravated degenerative osteoarthritic changes in his left knee. The respondent accepted liability for that injury.
In addition, Mr Kelly alleged that he suffered an injury to his right knee as a result of the “nature and conditions” of his employment between 28 February 1995 and 27 July 2007 and/or as a consequence of his left knee injury. He also alleged that, as a result of his left knee giving way on 23 April 2008, he injured his lumbar spine when he fell down several stairs.
I have not taken the above summary of Mr Kelly’s allegations from the Application to Resolve a Dispute (‘the Application’) registered in the Commission on 28 September 2009, but from the Arbitrator’s summary in her Statement of Reasons (‘Reasons’) dated 22 February 2010.
By letter dated 30 October 2008, Mr Kelly’s solicitors claimed lump sum compensation in the sum of $47,500 in respect of a 28 per cent whole person impairment. The letter did not identify the injury or injuries upon which the claim was based, but merely asserted that Mr Kelly had suffered an injury “as a consequence of the nature and conditions of employment (including a frank injury on 4th May, 2006) between 28th February, 1995 and 27th July, 2007”.
By letter dated 15 December 2008, the respondent’s insurer, GIO General Limited (‘GIO’), disputed liability in respect of any alleged injury to the right knee on the ground that, apart from evidence from Dr Burgess in a report dated 4 October 2007, there was no medical evidence to support “a causative link between the incident on 4 May 2006 and the claim in respect of injury to the right knee”.
In the Application, Mr Kelly claimed lump sum compensation in the sum of $55,000 in respect of a 29 per cent whole person impairment as a result of the condition of his knees and his lumbar spine. His allegations of injury in the Application are particularly confusing. The annexure to the Application provided the following “injury details”:
“Date of injury:
The nature and conditions of employment between 28/02/1995 and 27/07/2007 including frank injury on 04/05/2006 when leaving car foot got caught and suffered a twisting injury to his left knee joint which further resulted in an aggravation to his lumbar spine.
The applicant further claims (pursuant to sections 15 & 16 of the Workers Compensation Act 1987) a disease of gradual onset being osteoarthritic changes in the knees.”
The body of the Application included the following under “injury description”: “Injury to right and left knees and aggravation to lumbar spine”. Under “Describe how injury occurred”, the following appears:
“The nature and conditions of employment between 28/02/1995 and 27/07/2007 including frank injury on 04/05/2006 when leaving car his foot got caught and suffered a twisting injury to his left knee joint.”
The above “pleadings” can only be described as gobbledegook. They have led to considerable confusion in identifying the nature of the claim and the issues in dispute. Parties are again reminded that the Application to Resolve a Dispute must clearly and succinctly state the injury alleged and the circumstances in which it is alleged to have been received. The Application in the present matter did not do that. If a claim is for a consequential loss, that should be made clear. The Commission has repeatedly held that the expression “nature and conditions of employment” is meaningless and should not be used (see Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70).
Notwithstanding the unsatisfactory nature of the pleadings, the Arbitrator (at [6] of her Reasons) distilled the worker’s allegations to be as follows:
“The right knee injury was claimed on an alternative basis – as consequential
upon the frank injury and/or as the result of the nature and conditions of the
applicant’s employment between 28.2.1995 and 27.7.2007. The lumbar spine
injury is claimed as consequential on the first injury and to have arisen as
result of a fall and slip on stairs on 23rd April 2008, said to have been theresult of the left knee instability.”
Notwithstanding the narrow terms of the section 74 notice, the Arbitrator summarised the respondent’s denials (at [7]) as follows:
“The Respondent denies liability in relation to the further claims and that the
back and right knee conditions arose from the injury of 4th May 2006 or as the
result of the nature and conditions of the applicant’s employment between28.2.1995 and 27.7.2007.”
This statement was inaccurate. As I understand it, Mr Kelly never alleged that he injured his back as a result of the circumstances of his employment. The Arbitrator concluded (at [9]) that the parties agreed that the following issues remained in dispute:
“In relation to the lumbar spine and right knee did Mr Kelly suffer work related
injuries pursuant to s.4 of the 1987 Act for which he is entitled to becompensated?”
Whether this was actually agreed is unclear, but unlikely.
The Commission listed the matter for conciliation and arbitration on 22 January 2010. On that day, both parties were legally represented. Though the transcript of the proceedings on that day is incomplete and seriously deficient, the parties have agreed that the Arbitrator heard no oral evidence and that the matter proceeded with lengthy and detailed oral submissions.
In a reserved decision delivered on 22 February 2010, the Arbitrator found against Mr Kelly in respect of his claim for lump sum compensation as a result of the condition of his lumbar spine and right knee. The Commission issued a Certificate of Determination on 22 February 2010 in the following terms:
“The Commission determines:
1. Referral is to be made to an AMS for the assessment of WPI in relation to an injury to the left lower extremity in relation to an injury occurring on 4th May 2006.
2. There is to be an award for the Respondent in relation to the right lower extremity and lumbar spine.
3. All documents filed by both parties and these Reasons for Decision to be forwarded to the AMS, with the exception of the report of Dr Burgess dated 13th January 2010, which was excluded from the evidence.”
In an appeal filed on 19 March 2010, and amended on 5 May 2010, Mr Kelly seeks leave to appeal against the Arbitrator’s determination in respect of the orders and findings relating to his lumbar spine and right knee.
LEAVE TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. However, Mr Kelly’s submissions as to the reckoning of time in which to appeal under section 352 of the 1998 Act were incorrect. He submitted that, given that the Commission issued a Certificate of Determination on 22 February 2010 and it was taken to have been received on 23 February 2010, time did not commence to run until 24 February 2010. That is incorrect. This issue was exhaustively considered in Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 at [23] where it was held that time commences to run on the day after the Certificate of Determination is issued. Regardless of whether time is calculated from 23 February or 24 February 2010, the present appeal was filed in time.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of 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.
FRESH EVIDENCE
Neither party has sought to tender any fresh or additional evidence on appeal.
THE EVIDENCE
Mr Kelly
Mr Kelly’s evidence is set out in two statements. The first is dated 10 March 2009 and the second dated 13 January 2010.
In his first statement, he set out the uncontroversial circumstances in which he injured his left knee when he twisted while getting out of a car on 4 May 2006. As a result, he experienced severe pain in his knee, and underwent two arthroscopic procedures at the hands of Dr Ashton, orthopaedic surgeon.
In respect of his further problems, he added at paragraph 5 of his statement that:
“My bilateral knee problems are due to the wear and tear occasioned by my job as a security officer and, in particular, by the necessity to ascend and descend stairs and ladders and the uneven ground on which my duties were carried out.”
Mr Kelly stated that his work as a security officer involved walking to check the security of buildings and infrastructure at four complexes of the Orange TAFE. The walking regularly involved him in going up and down ladders, stairs and traversing rough ground. His duties also included maintenance work, such as painting, changing light bulbs, replacing locks, setting alarm systems, and maintaining electrical switches and photocopying equipment. He was also required to move furniture, such as photocopiers, computer cabinets and desks from one part of the campus to another. He constantly used ladders to check equipment, replace lights, check surveillance cameras and monitor fire alarms.
On 23 April 2008, he was walking down stairs at the front of his house when his left knee suddenly gave way and he fell down four or five stairs, landing on the bottom stairs. He saw Dr Lee, general practitioner, as soon as he could get an appointment and was given painkillers. He also saw a Dr Luscombe, general practitioner. Since that fall, he has suffered pain and discomfort in his hip and back, and stiffness in his lower back.
In his more recent statement, Mr Kelly said at paragraph 3:
“As a result of the nature and conditions of my employment with TAFE I have suffered injuries to my left and right knee including a frank injury on the 4 May, 2006 and an injury to my lumbar spine.”
He added that he started to experience symptoms in his right knee in 2003. He attributed the pain in his right knee to prolonged walking, stair-climbing and climbing ladders. He said he walked between 30 and 40 kilometres a day. He referred to the clinical notes from his usual general practitioner, Dr Drabsch, which refer to symptoms in his right knee in June 2007.
Medical evidence
Dr Burgess, orthopaedic surgeon, examined Mr Kelly in September 1992 as a result of injuries Mr Kelly received in a motor vehicle accident in April 1987. As a result of that accident, he injured his low lumbar spine and neck. Dr Burgess diagnosed him as suffering from a “low back syndrome with possible disc damage and left sciatica”.
Dr Drabsch certified Mr Kelly unfit for work from 25 October until 28 October 2005, due to a left knee injury. An x-ray on 27 October 2005 revealed early osteoarthritis in Mr Kelly’s left knee joint.
Mr Kelly came under the care of Dr Ashton, orthopaedic surgeon, on 17 May 2006. Dr Ashton confirmed that x-rays showed minimal degenerative changes. Dr Ashton correctly diagnosed the worker as having suffered a degenerative medial meniscal tear, with some patellofemoral wear. Dr Ashton operated on Mr Kelly’s left knee on two separate occasions. The surgery confirmed the presence of a tear in the left medical meniscus and early degenerative changes in the knee joint.
Dr Ashton reviewed Mr Kelly in April 2007. On examination, the knee had a full range of motion, with good stability.
Dr Ashton reported to GIO on 14 June 2007. He set out a full history of the left knee injury that occurred in May 2006. He also added that he took a history that Mr Kelly had had “intermittent knee pain previous to this injury, though not related to any specific injury”. His symptoms changed significantly with the twisting injury at work. Dr Ashton was not aware of any previous employment or any prior injury or injuries that “may have been related to his previous symptoms”.
Dr MacMahon, medical practitioner with HealthQuest Workforce Health Management, saw Mr Kelly at the request of the respondent on 8 June 2007 and reported on 20 June 2007. He reported that Mr Kelly last performed his normal duties in May 2006. He ceased those duties as a result of the injury to his left knee and then returned to modified duties after surgery in June 2006, and worked on and off until April 2007, when he ceased work and underwent a second operation. Mr Kelly had not returned to work at the time of Dr MacMahon’s assessment.
Mr Kelly complained to Dr MacMahon of having had bilateral knee pain (the left more so than the right) for three years prior to the injury in May 2006. Mr Kelly attributed his knee pain to prolonged walking and climbing stairs. He walked between 30 to 40 kilometres a day while performing his work as a security officer. He consulted his local doctor on occasions and was treated with rest and analgesics. He added, “his knees deteriorated with time, but he continued doing normal duties”.
Dr MacMahon then took a history of the May 2006 injury to the left knee and of the later surgery in June 2006 and again in April 2007. Notwithstanding the surgery, Mr Kelly’s left knee had not improved. It continued to swell intermittently, mainly after prolonged standing. He also noted some “instability of his knee when walking”. Mr Kelly complained of intermittent right anterior knee pain, mainly with walking and climbing stairs. His right knee clicked, but there was no swelling, stiffness or instability.
On examination, Dr MacMahon noted Mr Kelly to have a normal gait and posture, without any evidence of a limp. However, he was only able to do half a squat. Examination of the right knee revealed some mild crepitus on movement, but there was no obvious deformity or swelling. The right knee had a normal range of movement, with full extension. There was mild to moderate effusion in the left knee, with 2 cm of quadriceps wasting compared to the right.
Dr MacMahon concluded that Mr Kelly had developed “symptoms of bilateral degenerative patello femoral joints over the last three years”. He (Mr Kelly) attributed this to prolonged walking and climbing stairs. Mr Kelly said that his knee conditions had been “accepted as work-related”.
Dr Burgess examined Mr Kelly for medicolegal purposes on 4 October 2007 and reported to his solicitors on that date. He recorded that Mr Kelly had been retired “medically unfit” on 27 July 2007 because of his knee problems. He noted that Mr Kelly’s duties as a security officer involved “an inordinate amount of ascending and descending stairs and ladders and traversing rough ground”. Mr Kelly reported the occurrence of bilateral sore knees and “typical symptoms of patello-femoral ‘wear and tear’ consisting of an intolerance of patello-femoral stressors such as kneeling, squatting, holding his knee flexed for long periods and pain which was felt anterior to both patellae”.
Dr Burgess took a history of the injury on 4 May 2006 and the subsequent treatment provided by Dr Ashton. Mr Kelly’s subsequent graduated return to work program was “not very successful”, given the “energetic nature of his job and the need for ‘good legs’ and ultimately it was felt that he would be better off retired as ‘medically unfit’”. Mr Kelly complained of continuing pain in his left knee that caused him to limp. His knee threatened to “give way” and felt weak. He felt stiff and sore first thing in the morning. He also had an intolerance of patellofemoral loading stressors on both knees.
On examination, Dr Burgess recorded that Mr Kelly got up “somewhat stiffly” and walked with an “antalgic limp favouring his left leg”. His left quadriceps was wasted by 2 cm and there was a 20° flexion deformity in the left knee, which flexed to 90°. There was retropatellar tenderness in both knees. There was a 10° fixed flexion deformity in the right knee, which flexed to 100°, with pain beyond that range.
Dr Burgess concluded that Mr Kelly suffered from “work-related attritional changes in both his knees before he seriously injured the left one with the problem impacting largely on the medial meniscus”. Since that time, he has had “quite significant dysfunction of the left knee” and continuing trouble on the right, resulting in the problem which has rendered him unable to continue his job as a security officer. Dr Burgess added:
“Now the left one is quite dysfunctional and favouring this is causing rapid deterioration of the state of his right knee.
Before the injury he had what could be considered to be an undue level of ‘wear and tear’ due to the nature and conditions of his work.”
Dr Ashton again reported on Mr Kelly on 13 December 2007. He noted that the left knee pain continued and that supine x-rays showed early degenerative changes.
Dr Ashton reviewed Mr Kelly after a further MRI scan in February 2008. In his report of 8 February 2008, Dr Ashton confirmed that Mr Kelly had minor articular cartilage wear in the medial compartment and the patellofemoral region of the left knee.
Dr Luscombe certified Mr Kelly unfit for work on 23 April 2008. His certificate of that date described the injury as having occurred when the “knee gave way & [Mr Kelly] slipped down stairs”. He recorded the date of injury as 23 April 2008 and the diagnosis as “soft tissue injury to left hip, knee and ankle”. Dr Drabsch certified Mr Kelly unfit on 29 April 2008 as a result of the 23 April injury. His certificate has the same description of the injury, but he diagnosed “soft tissue injury to left hip, knee and ankle, with exacerbation Lumbar spine & sciatic nerve irritation”.
Dr Luscombe provided a short written report on 29 July 2008, stating:
“This patient[’]s left knee gave way going down steps resulting in further injury to [the] left knee and hip. It is requested that consideration be given to xraying [sic] the hip on the left”.
A left hip x-ray was performed on 6 August 2008. It revealed minimal thinning of the cartilage superior within the left hip.
Dr Burgess reviewed Mr Kelly on 24 March 2009 and reported to his solicitor on 6 April 2009. He took a history that Mr Kelly had aggravated an old back problem by a fall caused when his left knee “gave way” as he was going down some stairs some time in 2008. Once the acute reaction to that injury settled, Mr Kelly felt that he was left with “increased susceptibility to back stressors and a more painfully dysfunctional back”. He had the same level of dysfunction in both his knees, with an intolerance of patellofemoral loading stressors, and pain and stiffness in the morning. He was very much the same as he had been at the previous examination, if not a little worse.
On examination, Dr Burgess noted that Mr Kelly could barely flex to reach beyond his knees, and that that caused pain in his back, with pain radiating to a degree into his left buttock. He had lost over 50 per cent of extension, with a loss of lumbar lordosis and paravertebral muscle spasm. Mr Kelly continued to have an antalgic limp, favouring his left leg. He had bilateral wasted quadriceps.
Under “Opinion and Prognosis”, Dr Burgess stated:
“My opinion and prognosis regarding his knees remains as stated in my report of the 4th October 2007. He has bilateral undue levels of osteoarthritic changes in his knees for someone his age. The prognosis for both of them is for eventual total knee replacements.
In my opinion it is more probable than not that his current situation was caused by the accident on the 4th May 2006, and the nature and conditions of his work, the injury to the right [sic, left] knee precipitating and accelerating his progress to its current state.”
Dr Burgess added that Mr Kelly’s knee injury appeared to have caused a fall that aggravated a previous back condition.
A CT scan of the lumbar spine on 14 April 2009 revealed minor diffuse annular bulging at L4/5, but no significant facet joint arthropathy or foraminal stenosis. There were, however, mild degenerative changes that were, in the radiologist’s opinion, within normal limits for Mr Kelly’s age.
Dr Drabsch referred Mr Kelly to Dr Wood, orthopaedic surgeon, for further treatment for his left knee in June 2009. Dr Wood arranged for a bone scan of both knees, which revealed an abnormal uptake of the radionuclide in the medial compartment of both knees, a little more marked on the right than on the left.
I have not reviewed the respondent’s medical evidence because, contrary to clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’) , it has tendered more than one forensic medical report.
Dr Drabsch’s clinical notes
Whilst these notes are particularly difficult to decipher, there is a clear reference to treatment for a left knee complaint on 25 October 2005 after Mr Kelly twisted at work. The notes also refer to “giving way/clicking”. There are numerous references to attendances for knee problems, but it is often difficult to tell from the notes whether those complaints related to the left knee or the right knee.
Dr Drabsch recorded on 18 October 2007 that Mr Kelly fell on 14 October 2007, when his knee gave way while getting out of a shower. The notes appear to refer to “painful back”. Though that entry is unclear, the entry on 20 October 2007 clearly refers to “lower back settling”. There is a further reference to back pain on 6 November 2007, though the context is difficult to decipher.
There appears to be a clear reference to the right knee on 18 and 30 November 2007. There appear to be further references to the right knee on 18 January 2008. There is also a reference on 7 March 2008 to a “knee collapse 3/3/08” and a reference to “hurt (R) knee”. The entry for 29 April 2008 appears to confirm that a fall occurred on 23 April 2008 as a result of Mr Kelly’s knee having given way.
THE ARBITRATOR’S FINDINGS
After refusing to allow Mr Kelly to tender a supplementary report from Dr Burgess and refusing his subsequent application for an adjournment, the Arbitrator identified the issue to be whether Mr Kelly had suffered work-related injuries “pursuant to section 4 of the 1987 Act”. She concluded that Mr Kelly had not made out his case because:
(a) there was no advance in pathology nor worsening of symptoms in Mr Kelly’s lumbar spine following the April 2008 fall;
(b) part of Dr Burgess’s report of 6 April 2009 was “unintelligible”;
(c) Dr Burgess had not addressed the issue of consequential loss in adequate clinical terms and reasoning. He did not explain “in medical terms” what the changes were in the right knee that were said to have been caused by the injury to the left knee, nor the mechanism of any change. He did not explain the “baseline” from which the deterioration was said to have occurred and did not explain the mechanism of any changes in the right knee;
(d) Mr Kelly’s statements did not report that he experienced right knee symptoms while performing any particular aspect of his duties;
(e) Dr Burgess’s evidence that Mr Kelly had “undue” wear and tear in his knees was unexplained by reference to any scans and was inconsistent with other medical evidence, and
(f) she was unable to find that Mr Kelly had suffered a section 4 injury to his right knee, either as a consequence of his left knee injury or as a result of the duties he performed with the respondent.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) concluding that Mr Kelly had been unable to sustain his claim for injury to the lumbar spine;
(b) concluding that she was unable to find that Mr Kelly had suffered an injury to his right knee, and
(c) declining to adjourn the proceedings.
SUBMISSIONS, DISCUSSION AND FINDINGS
There are several areas where the Arbitrator misdirected herself in the assessment of this matter. Her reference to part of Dr Burgess’s report of 6 April 2009 being “unintelligible” resulted from her failure to recognise what appears to be an obvious error in the report where the doctor referred to the right knee when it is clear from the context of the report that he intended to refer to the left knee (see [52] above). Nevertheless, the most basic preparation would have indicated that Mr Kelly’s solicitors should have requested Dr Burgess to correct that error in a supplementary report.
The Arbitrator erred in suggesting that Dr Burgess had not addressed “the issue of consequential injury in adequate clinical terms and reasoning” (Reasons at [48]). Dr Burgess stated that Mr Kelly had “undue levels of osteoarthritic changes in his knees for someone his age”. Mr Kelly was born in 1957 and was 52 at the time of Dr Burgess’s 2009 report. Whilst it would have been helpful if the doctor had more fully explained the basis for his statement, his conclusion was open to him based on his expertise and experience as an orthopaedic surgeon. The conclusion was not unexplained, but was based on his findings on examination. Those findings were that Mr Kelly had a 10 degree fixed flexion deformity and tenderness over the retropatellar surface of his right knee. The findings were consistent with the bone scan in 2009, which revealed increased uptake in both medial compartments (the right more than the left). Though I express no concluded view, the respondent’s submission that the finding of osteoarthritis in a man of Mr Kelly’s age would not be unusual was unsupported by any evidence. That submission also ignored the clear and significant clinical findings made by Dr Burgess.
Whether Mr Kelly had an “undue level” of “wear and tear” in his knees before his May 2006 injury due to the circumstances of his employment is not so clear and I agree that Dr Burgess did not explain the basis for that statement. However, on its own, that failure was not a reason for rejecting Mr Kelly’s claim because it is clear that he did have symptoms in his right knee before May 2006 and that those symptoms were aggravated by his favouring his left knee after the left knee injury.
The Arbitrator wrongly stated that Dr Burgess did not explain the “mechanism” of any changes in the right knee. He did. In his first report, Dr Burgess stated that Mr Kelly’s left knee was “quite dysfunctional” and “favouring this is causing rapid deterioration” in the state of his right knee. The “mechanism” was the “favouring”. That the “favouring” occurred as a result of the significant injury to the left knee is undeniable.
The Arbitrator erred in rejecting Dr Burgess’s evidence on the basis that he did not explain the “baseline” from which the deterioration was said to have occurred. It was not necessary for the doctor to explain any baseline. An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626). Mr Kelly had to prove that he suffered a consequential loss as a result of the accepted injury in May 2006.
Whilst I have reservations about the strength of Mr Kelly’s (apparent) claim that he suffered an injury to his knees as a result of walking and ascending and descending stairs in the course of his employment, as the matter must be re-determined, I express no concluded view on that part of the case. I note, however, that Mr Kelly’s statements are particularly brief and of limited assistance on this issue. I would have thought that, at the least, Mr Kelly would have given evidence of when and where his symptoms commenced and how they progressed in the course of his employment, if in fact they did.
The claim for whole person impairment as a result of the condition of Mr Kelly’s lumbar spine was, as I understand it, a claim for a consequential loss as a result of the left knee injury, as opposed to a separate and distinct section 4 injury. That is, it was alleged that, as a result of the left knee injury on 4 May 2006, Mr Kelly’s left leg collapsed on 23 April 2008, causing him to fall and injure his back. The Arbitrator found, without properly considering Mr Kelly’s unchallenged evidence, that there had been no “advance in pathology nor worsening of symptoms ... in Mr Kelly’s lumbar spine following the April 2008 fall” (Reasons at [44]). Mr Kelly gave evidence, albeit brief, of having suffered pain and discomfort in his back and hip since the fall. The evidence from Dr Burgess was that Mr Kelly’s pre-existing back condition had been aggravated in the fall. Without expressing a concluded view, it is difficult to see why that evidence was not sufficient to establish this part of Mr Kelly’s claim. The level of impairment as a result of the aggravation is a matter for an Approved Medical Specialist to determine.
The Arbitrator also wrongly stated that there was “nowhere any description of the fall mechanism” (Reasons at [41]). This statement ignored Mr Kelly’s evidence that he fell because his “left knee suddenly gave way” and the history in Dr Burgess’s report of 6 April 2009. It also ignored Dr MacMahon’s history of “instability” in the knee and Dr Drabsch’s reference in his notes to the knee having given way on occasions. The respondent’s submission that Dr Burgess’s evidence about the fall was an unexplained assumption ignored Mr Kelly’s unchallenged evidence. Whether Mr Kelly fell because of his knee giving way was a question of fact to be determined by an assessment of all the evidence, not just the medical evidence.
Though I express no concluded view, Mr Kelly’s evidence that he fell because his left knee gave way was logical and consistent with the problems he experienced in his knee at that time and with Dr MacMahon’s history that the knee had been unstable. That instability clearly resulted from the May 2006 injury. Whilst further medical evidence on this issue might have been helpful, it was not essential. If the evidence from Mr Kelly as to the reason for his fall is accepted, the absence of a report from Dr Drabsch or Dr Ashton on this issue does not raise a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference (Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 (at [100]) per Giles JA (Beazley and Campbell JJA agreeing) overturned by the High Court on different issues: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48).
I do not accept the submission made by Mr Kelly on appeal that the Arbitrator was bound to accept his unchallenged evidence. An Arbitrator is not bound to accept unchallenged evidence if that evidence is inconsistent with other evidence or is inherently incredible (Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105]). Though it is a matter for the next Arbitrator, given the current state of the evidence, it is difficult to see why Mr Kelly’s evidence as to the circumstances of his fall on 23 April 2008 would not be accepted.
It follows from the above analysis that the Arbitrator’s decision cannot stand and that the matter must be re-determined. Unfortunately, there are several reasons why I am unable to conduct that re-determination.
First, the transcript is incomplete. As the Arbitrator heard no oral evidence, the respondent has not objected to the matter proceeding with the incomplete transcript. Mr Kelly initially submitted on 19 March and 5 May 2010 that he had no objection to the matter proceeding on the papers. However, in a letter addressed to the Commission on 5 May 2010, he submitted that, though he still had no objection to the matter being dealt with on the papers, in view of the fact there was “no transcript”, the “more practical procedure would be for a hearing in which oral submissions could be made and any necessary reply made to the respondent’s Notice of Opposition”.
Second, the transcript that is available indicates that Mr Kelly’s counsel, Mr Davis, submitted that the only issue was “nexus”, that is, the connection between Mr Kelly’s conditions in his right knee and lumbar spine and the injury to the left knee on 4 May 2006 (T16.52). He noted that there had been “no denial of nature and conditions” (T16.39). Though that submission was correct (see [6] above), the insurer’s section 74 notice was in response to a claim that did not properly identify the nature of the alleged injury. The subsequent particulars in the Application also failed to clarify the nature of the claim.
The Arbitrator referred to the inadequate pleadings at [56] of her Reasons. She appears to have assumed that the parties agreed that the Commission could determine the matter notwithstanding the unsatisfactory state of the pleadings and particulars. That agreement was not noted on the available transcript (which covers the first hour of the arbitration) and the case seems to have proceeded on an assumption about the pleadings that may or may not have been correct, and on the basis that the insurer disputed matters (such as injury) that it did not dispute. The respondent has submitted that the Arbitrator “correctly sorted out the injuries alleged and identified the matters in dispute” at [1] to [9] of her Reasons. That is far from clear from the transcript or the submissions by Mr Kelly on appeal.
The incomplete transcript reveals that, not only did Mr Davis not accept the issue to be as identified by the Arbitrator at [9] of her Reasons, but he submitted to the contrary. He was right to do so. The insurer had never disputed the injury on 4 May 2006. The question of Mr Kelly’s entitlement to compensation for his right knee condition involved two issues. First, whether he injured his right knee as a result of walking and climbing stairs and ladders in the course of his employment and, second, whether his right knee condition resulted from his accepted left knee injury.
The second issue was not an “injury” question but a causation question that required the application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. It required a determination of whether Mr Kelly suffered a consequential loss to his right knee as a result of the injury to his left knee. Mr Davis made this point on several occasions (T3.4; T5.41; T12.5; T17.6; T28.53; T29.38; T30.35; T33.5).
Though the Arbitrator said that she considered the right knee claim on the basis that it was a consequential loss (Reasons at [45]), her conclusion indicates that she approached the question from the point of view of whether Mr Kelly suffered a section 4 injury to his right knee (Reasons at [49]). Thus, she appears to have failed to properly consider the consequential loss issue. The Commission has considered the proper approach to consequential loss claims in Vivaldo v Uniting Church of Australia t/as Lucan Care [2010] NSWWCCPD 41 and Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
Third, the respondent’s submissions on appeal refer to printed notes from Dr Drabsch headed “PROGRESS NOTES as at 26/11/2009” which are said to comprise entries from 15 October 2005 to 26 November 2009. Those notes are not in the Commission’s file and the Arbitrator did not refer to them.
Fourth, Mr Kelly has alleged that the Arbitrator erred in refusing his application for an adjournment. Mr Davis made that application after the Arbitrator refused to admit into evidence a supplementary report from Dr Burgess, apparently explaining his earlier reports. The Arbitrator rejected the report because it did not “raise a new issue” (T4.29). If the report did not raise a new issue, it is hard to see how the respondent would have been prejudiced if the report had been admitted. It referred to no prejudice in its submissions. The Arbitrator then found against Mr Kelly because, in part, Dr Burgess had not explained his conclusions.
The Arbitrator erred in failing to allow Dr Burgess’s supplementary report into evidence. In rejecting the report, in circumstances where there was no prejudice to the respondent, she failed to determine the case according to its substantial merits and unfairly deprived the worker of the chance to rely on evidence that allegedly addressed the very concerns the Arbitrator had about the case. That error cannot be corrected on appeal because Mr Kelly has not sought to rely on the report as additional evidence or fresh evidence on appeal.
Fifth, the respondent is in breach of clause 43 of the Regulation, as it has tendered three forensic medical reports, namely reports from Dr Davis, Dr O’Keefe and Dr Holman. Except in the circumstances in clause 43(3), which, on the face of the evidence before me, do not apply in the present case, clause 43 provides that a party is only entitled to tender one forensic medical report. Before the matter can be re-determined, the respondent will have to elect which of its reports it intends to use. Dr MacMahon’s report is not a forensic medical report as it was not obtained for the purpose of proving or disproving an entitlement in respect of a claim or dispute under either the 1998 Act or the 1987 Act (clause 43(4)(a)).
CONCLUSION
Having conducted a review on the merits, I have determined that the Arbitrator erred in several respects in her approach to this matter and the matter must be re-determined by another Arbitrator.
Whilst the future conduct of this case is a matter for the parties and the next Arbitrator, I would have thought that, at a minimum, it would be prudent for the following steps to be considered:
(a) the Application should be amended to properly indicate the nature of the claim, injuries alleged and the cause of those injuries. It is not sufficient to merely refer to the “nature and conditions” of employment;
(b) so that the issues can be properly identified, the respondent will naturally be permitted to issue an amended section 74 notice in response to the amended Application;
(c) a proper statement of evidence should be taken from Mr Kelly;
(d) a supplementary report should be obtained from Dr Burgess correcting the apparent error in his report of 6 April 2009 and providing such further evidence as is considered appropriate to allow the case to be determined on its merits having regard to the relevant authorities and principles governing expert evidence;
(e) a report should be obtained from Dr Drabsch;
(f) the respondent will have to elect which of its several forensic reports it wishes to rely upon at the further arbitration, and
(g) if the respondent wishes to rely on Dr Drabsch’s “PROGRESS NOTES”, they will have to be served and tendered.
Though there is no challenge to the Arbitrator’s referral of the assessment of whole person impairment as a result of Mr Kelly’s left lower extremity, it is not appropriate that that referral take place until all outstanding issues are determined.
DECISION
The Arbitrator’s determination of 22 February 2010 is revoked and the matter is remitted to a different Arbitrator for re-determination.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. Costs of the first arbitration and of the second arbitration are to follow the event of the second arbitration.
Bill Roche
Acting President
6 July 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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