Kingi v Australian Portable Buildings Pty Limited
[2009] NSWWCCPD 30
•19 March 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Kingi v Australian Portable Buildings Pty Limited [2009] NSWWCCPD 30 | ||||
| APPELLANT: | Mac Kingi | ||||
| RESPONDENT: | Australian Portable Buildings Pty Limited | ||||
| INSURER: | CGU Workers Compensation NSW Limited | ||||
| FILE NUMBER: | WCC5184-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 5 November 2008 | ||||
| DATE OF APPEAL DECISION: | 19 March 2009 | ||||
| SUBJECT MATTER OF DECISION: | Whether the worker suffered a compensable injury to his hips in addition to his back injury; application of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; adequacy of the award and exercise of discretion. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Taylor & Scott | |||
| Respondent: | Moray & Agnew | ||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 2, 3 and 4 of the decision of the Arbitrator dated 5 November 2008 are revoked and the following decision made in its place: (1). The Respondent to pay the Applicant weekly compensation at the rate of $755.00 per week from 13 January 2006 to 13 July 2006, pursuant to section 36 of the 1987 Act. (2) The Respondent to pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants, as adjusted, from 14 July 2006 to 31 March 2008, pursuant to section 37 of the 1987 Act. (3) The Respondent to pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants, as adjusted, from 1 April 2008 and continuing, pursuant to section 40 of the 1987 Act. (4) Credit given to the Respondent for any payments of weekly compensation made to the Applicant to date. (5) The Respondent to pay the Applicant’s section 60 expenses on production of accounts or receipts. 2. Paragraph 5 of the decision of the Arbitrator dated 5 November is confirmed. 3. The Respondent is to pay the Appellant’s costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
On 3 December 2008 Mac Kingi (‘the Appellant / Mr Kingi’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 5 November 2008.
The Respondent to the Appeal is Australian Portable Buildings Pty Limited (‘the Respondent / Employer’).
Mr Kingi is presently 57 years old. He commenced employment with the Respondent in 1998. He was employed as a carpenter. He sustained a number of injuries to his back in the course of his employment. The first was on 12 October 2000 while bending over cutting cladding. He was able to resume work the next day. The second injury occurred on 29 January 2001. On that occasion he was working on a roof when he suffered severe pain in his back. He was again able to resume work after the weekend off. The third injury occurred on 5 December 2003. He had loaded materials into a ute then driven some forty minutes to the site. The seat of the ute was rigid and couldn’t be adjusted so that he sat in an awkward position. When he arrived at the site he was in severe pain in his back with some left groin and hip pain. He was off work for about a week before resuming work. He claimed that he experienced ongoing intermittent back pain after this incident. He subsequently performed only supervisory duties.
In addition to his back injuries, Mr Kingi has undergone two hip replacements, the left hip on 26 June 2006 and the right hip on 17 September 2007. Mr Kingi claimed that, although there was no specific injury to either hip, the nature and conditions of his employment with the Respondent contributed to his hip problems.
Mr Kingi eventually ceased work with the Respondent on 13 January 2006 and has not worked since.
A Medical Assessment Certificate (MAC) issued on 25 January 2005 found that as a result of the 2003 injury Mr Kingi had a 10% WPI of the lumbar spine. The total impairment was assessed as 13% of which a quarter was deducted as being attributable to a pre-existing condition.
On 7 July 2008 Mr Kingi filed an ‘Application to Resolve a Dispute in the Commission (‘the Application’) seeking weekly benefits compensation from 13 January 2006 and medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
The parties attended a conciliation / arbitration hearing on 19 September 2008. On 5 November 2008 a ‘Certificate of Determination’ was issued with an accompanying ‘Statement of Reasons’ (‘Reasons’). The Arbitrator found in favour of the Respondent in relation to the claimed hip injuries, but awarded Mr Kingi weekly benefits at varying rates from 13 January 2006 together with medical expenses consequent upon the back injury in December 2003.
It is from this decision that Mr Kingi seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 November 2008 records the Arbitrator’s orders as follows:
“1.There is to be an award in favour of the Respondent in relation to any claim for injury to the hips.
2.The Respondent is to pay weekly benefits at the rate of $50 gross for the period 13 January 2006 to 31 March 2008.
3.The Respondent is to pay weekly benefits at the rate of $250 gross for the period 1 April 2008 and continuing.
4.The Respondent is to pay the Applicant s.60 expenses in relation to the back injury.
5.The Respondent to pay the Applicant’s costs as agreed or assessed in relation to which a 15% uplift should apply to both parties.”
ISSUES IN DISPUTE
Mr Kingi has identified five grounds of appeal as follows:
“1. The Arbitrator erred in rejecting the opinions of Dr Collins, Dr Bodel and Dr Mahmood and giving them no weight;
2. The Arbitrator erred in rejecting the opinions of Dr Collins, Dr Bodel and Dr Mahmood as to the work attribution of the hips injury [sic] on a misapplication of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (Makita)
3. The Arbitrator erred in not finding that the appellant suffered a work related injury to his hips in the form of an aggravation of a disease condition;
4. The Arbitrator erred in awarding a manifestly inadequate sum in respect of weekly payments from 13 January 2006 to 31 March 2008;
5. The Arbitrator erred in not awarding the applicant a full continuing ongoing weekly payments award from 1 April 2008 to date and continuing.”
In summary, Mr Kingi challenges the Arbitrator’s findings in relation to the condition of his hips, and the quantum of the award of weekly benefits.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the requirements of section 352 (2) of that Act.
Leave to appeal is granted.
OTHER PRELIMINARY MATTERS
A sound recording of the hearing on 19 September 2008 was incomplete resulting in a partial transcript. By direction dated 26 February 2009 I invited the parties to make submissions as to the future conduct of the appeal proceedings given the absence of a complete transcript. Both parties have responded indicating that they are happy for the matter to be determined in whatever way I deem appropriate.
Given that no oral evidence was given at the hearing, and the Arbitrator’s comment at [11] of her reasons that the parties’ submissions have been considered and “…referred to as relevant in the body of these reasons”, I am satisfied that I have sufficient information to determine the appeal on the material before me.
THE EVIDENCE
Mr Kingi’s Evidence
In his Application filed on 8 July 2008, Mr Kingi identified the three specific back injuries referred to earlier, but also claimed that the “nature and conditions of employment between 1 January 2002 and 18 January 2006…” caused or aggravated his hip condition. Alternatively, that condition constituted a disease of gradual process within the meaning of sections 15 and 16 of the 1987 Act.
In his statement dated 12 December 2007, Mr Kingi set out the circumstances surrounding each of the three back injuries. He then said:
“I believe that it wasn’t only these incidents which lead to my back injury but also the nature and conditions of my employment with the Respondent. The work I was required to perform was often heavy in nature and required a lot of heavy lifting, bending, twisting and above head work.
To date I continue to have problems with my back and I am unable to stand, sit, walk or travel for extended periods of time and I experience pain when laying [sic] down which affects my sleep.
In addition to these injuries I have also injured my hips and whilst there has been no specific incident in relation to my hips I believe that these injuries are as a result of my employment with the Respondent…”
The balance of his statement set out details of his hip surgery and details of his physical restrictions.
Mr Kingi completed a claim form in relation to the three identified back injuries. He also submitted a claim on the Respondent’s current insurer, CGU Workers Compensation NSW Ltd (‘CGU’) on 12 February 2007 wherein he described his injuries as:
“3 injuries to my back over a period of time from 2000 to 2003. Injuries to R hip, L hip, R leg & L leg over a period of time due to nature and conditions of employment.”
Mr Kingi had been treated for his back injuries in 2000 and 2001 at the Pacific Medical Centre in Blacktown. Following the incident in 2003, he was seen by Dr Mahmood at that practice on 10 December 2003. In a report dated 23 January 2008, Dr Mahmood said:
“He was having lower back pain on and off every time he does heavy work. Mr Kingi works as a carpenter and joiner, works in portable buildings, use [sic] to do framing, hanging doors and general activities involving lifting heavy weights and frequent bending…
As he was not improving in February 2004, Mr Kingi had a CT scan which showed degenerative disc disease, L5/S1 disc prolapse and indented S1 nerve root. Therefore he was referred to Dr Irani…[who] organised an MRI for him which confirms findings. Dr Irani referred him to Dr Matthew Giblin…[who] organised a bone scan which showed severe bilateral hip osteoarthritic …and Dr Giblin advised him to have his hips treated prior to any treatment to his back. Mr Kingi managed to work light duties until the end of 2005 but his back pain and hip joint problems made him unable to work…
I think Mr Kingi’s lower back degeneration, lumbar spine disease and bilateral hip osteoarthritis are related to the nature of his work. The nature of his work is responsible and has been a substantial contributing factor to both pathology in his back and hips…
I think he will be fit for permanently modified duties…desk type duties or sedentary duties will be preferred.”
In a certificate dated 8 February 2007 Dr Mahmood diagnosed “bilateral hip joint damage secondary to (unreadable) degeneration.” Under the heading “How the injury occurred” Dr Mahmood stated “continuous lifting, pushing, pulling, bending” and certified Mr Kingi as unfit for work. Another certificate of the same date referred to “lower back injury” but certified Mr Kingi as fit for suitable duties from 8 February 2007 to 8 May 2007 in respect of that injury.
Mr Kingi was referred to Dr John Bentivoglio, orthopaedic surgeon, at the request of his solicitors, on 5 July 2004. In a report dated 8 July 2004, Dr Bentivoglio obtained a history of the three back injuries and diagnosed a degenerate disc prolapse at L5/S1. Symptoms included back pain with”…some groin, hip and knee symptoms (from his hip).” He then stated:
“The degenerative disease in his hips and shoulder are [sic] constitutional in origin and are [sic] not related to work.”
Mr Kingi was also referred by his solicitors to Dr Ian Collins, physician, whom he saw on a number of occasions between February 2004 and February 2008. In a report dated 27 February 2004, Dr Collins also obtained a history of the three back injuries. There was no history of hip symptoms emanating from those injuries. He noted that in the past, Mr Kingi had undergone surgery for recurring dislocations in the right shoulder, and had had surgery to his left groin when he was a young child. His diagnosis was similar to that of Dr Bentivoglio. He noted that Mr Kingi was presently employed as an acting foreman involving a lot of walking but no lifting and no work with tools. He concluded:
“The patient has osteoarthritic of both hips worse on the left than the right. He has pain in the legs due to radiculopathy.
The patient’s back condition will be gradually progressive. He will also over the years experience gradual progress of the hip arthritis and may eventually have to have hip replacement operations…
In my opinion the patient’s condition has been the result of the work injuries and the nature and conditions of his work. I believe that his employment duties were a substantial contributing factor to his condition.”
Dr Collins then assessed permanent impairment of the back and legs. In a separate report of the same date, Dr Collins noted that the “condition for assessment” was “lumbar spine injury” and assessed a WPI of 8%.
In a report dated 10 August 2004 Dr Collins confirmed his WPI assessment and set out details of restrictions on Mr Kingi’s activities “because of his back pain.”
In a series of reports all dated 30 November 2004, Dr Collins looked at separate assessments in respect of each of the back injuries.
In a report dated 16 November 2006, Dr Collins obtained this history:
“The patient has been employed for many years as a carpenter. He did framing, hanging doors and general activities associated with his trade as a carpenter. He also laid roofs and did guttering. His work would involve a lot of lifting, a lot of heavy carrying and working on and above ground.”
Dr Collins confirmed that at the time he had seen Mr Kingi in February 2004, he had noted that Mr Kingi had osteoarthritis of both hips. He stated:
“At that time apart from the back pain he was being slowed up by discomfort in the hips although he attributed this at the time mainly due to the back…
In my opinion the condition of the patient’s back and of his hips is related to the nature and conditions of his employment. In my opinion his employment over his lifetime can be said to have been a substantial contributing factor to either causing, aggravating, accelerating, exacerbating or deteriorating the degenerative condition of the back and both hips. I believe also that it was an occupational disease of such a nature as to be contracted by gradual process.”
In a report dated 8 December 2006, Dr Collins opined:
“Mr Kingi is not fit for his full duties as they were before the accident. He is working as an acting foreman…his job involves him in a lot of walking but not in lifting. He is unable to work because of his back condition i.e. the damage caused by the injury in 2004 [sic] together with the earlier injuries and the degenerative changes associated with the nature and conditions of his work…
He has quite sufficient disability from his back to prevent him from working quite apart from any changes in his hips.”
In his final report dated 5 February 2008, Dr Collins again set out his WPI assessment in relation to the back
Annexed to Mr Kingi’s Application was a letter from Mr Rick Welch, managing director of the Respondent dated 18 January 2006. He stated:
“Mac Kingi is an employee of this company with 8 years of service.
He is currently on a waiting list to have both of his hips replaced.Over the past few years I have watched his condition deteriorate and in the past year he has only been able to shuffle from place to place…
He is now at the point where he can no longer walk or work.
We have continued to employ Mac as a leader and trainer of our apprentice carpenters to minimise the impact of work on his condition…”
The balance of the letter was by way of a plea for urgent medical attention for Mr Kingi.
A letter dated 28 March 2006 addressed “to whom it may concern “ from Ms Sweet, the financial administrator of the Respondent again noted: “Mac’s physical health has been deteriorating over the last couple of years due to his hip problem.” The balance of the material relied upon by Mr Kingi consisted of medical certificates and clinical notes from Dr Mahmood, and wage records. Additional material was tendered at the hearing including, a series of reports from Dr Woo who carried out both hip replacements. He stated in his report dated 25 June 2005:
“He injured his back at work in 2000 [and] again in 2003. He still has back pain.
He complains of pain in both hips around 2003.
X-ray and bone scan showed advanced OA both hips. The left hip is destroyed with
sclerosis and subchrondal cysts. He needs left total hip replacement. I have put him
on my public waiting list…”
The Respondent’s Evidence
The Respondent relied on a series of medical reports from Dr James Bodel, orthopaedic surgeon. In his report dated 14 October 2004, Dr Bodel noted the three episodes of back injury and subsequent investigations. He then stated:
“He also had plain x-rays of the pelvis which showed quite severe arthritic change in both hips, the left much worse than the right. There was also long-standing collapse of the head of the femur on the left hand side and narrowing of the joint space, more marked on the left than the right.
Mr Kingi continues to complain of pain in the back, groin and thighs.
I do note with interest however that he had an operation in the upper part of the left thigh and groin in childhood…he has also had a number of sporting injuries in other areas but not the back or hips in the past.
Mr Kingi has had recurring episodes of mechanical backache dating back to 12 October 2000. That initial injury was merely a soft tissue injury which recovered fairly quickly. The episode on 29 January 2001 was more significant and probably caused a disc injury at the L5/S1 level centrally and to the left.
The injury on 5 December 2003 further aggravated his long standing back complaint and he also noted pain in the left hip and groin. X-rays taken in February 2004 show long standing arthritic change in both hips which is a constitutional finding. The nature and conditions of work have aggravated the arthritic process but have not caused it…
It would be of value to know the surgery which was done in the left groin in his childhood…I suspect that he had a surgical approach to the hip joint, probably for septic arthritis. This could explain the quite severe degenerative change seen in the hip joint on the x-rays…
The nature and conditions of his work as a carpenter, prior to working for [the Respondent] is probably a contributing factor to the degenerative process seen in the back and both hips.”
In a separate report also dated 14 October 2004, Dr Bodel said:
“There is no clinical evidence of work-related pathology in either hip and therefore no work-related pathology in either leg at or above the knee.”
In his report dated 25 March 2008, Dr Bodel reconfirmed the history given by Mr Kingi. He noted that since last being seen, he had undergone bilateral hip replacements with some improvement in his hip pain. Back complaints remained unchanged. He noted that “He was put off work in early 2006 before the surgery for the hips. By that time he could not stand the pain.”
Dr Bodel concluded:
“He has bilateral osteoarthritic change in both hips which is unrelated to work but may have been temporarily aggravated by work.
I see no indication clinically of any ongoing work related material aggravation, exacerbation or acceleration of the disease process which forms the arthritic change in both hips.
Any temporary aggravation caused by the nature and conditions of his work in general should have ceased within three or four months of him ceasing work.
It would be most unwise for him to return to his pre-injury duties but he could cope with light supervisory work of the type that he was doing prior to ceasing employment in January 2006.
He would need to be able to change position frequently throughout the working day and avoid prolonged standing or walking particularly on uneven surfaces. He certainly could not climb ladders or work on roofs.
His ability to find work on the open labour market generally has therefore been compromised.”
In a short report dated 7 May 2008, Dr Bodel “clarified” his earlier comments stating:
“This gentleman developed symptoms in the back and groin while at work.
He had a number of episodes of injury…in each of those episodes the complaint was mainly back pain with some ‘hip pain.’
The subsequent investigations eventually showed clear evidence of longstanding degenerative disc disease at the L4/5 level and at L5/S1 and also severe arthritic change in the pelvis on both sides, the left side much worse than the right.
This documented pathology is a constitutional ailment pre-existing any of the work injuries and not specifically caused by any of those injuries.
The episodes of injury may have temporarily caused pain in this abnormal pathology causing a flare-up of the symptoms associated with this medical condition of degenerative disc disease in the lumbosacral spine and arthritic change in both hips. Any temporary flare-up of symptoms should have settled within the time frame outlined (three to four months).
I found no clinical evidence on assessment of this gentleman on 14 October 2004 or again more recently on 25 March 2008 of any additional structural damage or change in the underlying constitutional degenerative process or any clinical sign of any change in any way of the underlying pathological process as a result of the episodes of injury at work.”
The Respondent also relied upon a Medical Assessment Certificate (MAC) of Dr Michael Gliksman dated 25 January 2005. In that MAC, Dr Gliksman noted that Mr Kingi “…has not made a full recovery from the symptoms sustained on 5 December 2003.” He recorded complaints of constant pain in the lower back and both hips, with pain radiating to both lower limbs. He noted Mr Kingi’s statement that “ …he may have suffered a fracture of the left femur when a child however this has left no ongoing problems.”
Dr Gliksman concluded that:
“Mr Kingi suffers from long-standing, widespread osteoarthritic degenerative change. The history indicates that on 5 December 2003 Mr Kingi suffered an injury which led to the long-term symptomisation of the condition affecting the L5/S1 disc and the left lower limb, due to chronic sciatica resulting from that injury.”
Dr Gliksman assessed a WPI of 10% due to the injury on 5 December 2003. In this regard, he disagreed with Dr Bodel’s claim that the more significant injury occurred in 2000, and disagreed with Dr Collins’ assertion in his report of 27 February 2004 that Mr Kingi ‘has not suffered from any previous injury or pre-existing condition which is not employment related and which would contribute to his ongoing impairment’ stating that “The results of the investigations seen indicate clearly that this cannot be an accurate opinion.”
THE ARBITRATORS FINDINGS AND REASONS
The Arbitrator’s Reasons are lengthy and detailed. Regrettably, the paragraph numbering from [60] onwards is inaccurate: [60] is followed by [47]. I have therefore re-numbered the paragraphs following [60] and will refer to them as, for example [61] (47) for ease of reference.
The Arbitrator commenced at [13] to summarise the “medical and professional evidence.” She referred to the reports of Dr Collins, Dr Bodel, the MAC of Dr Gliksman, the report and certificates from Dr Mahmood and the radiological reports. Other evidence she considered at [25] to [27] were Mr Kingi’s statement, the letter from Mr Welch from the Respondent, and the separation certificate prepared when Mr Kingi ceased employment. No reference was made to the report of Dr Bentivoglio nor the reports of Dr Woo.
At [29] she set out her “Findings and Reasons” commencing with a discussion of “The Legal Framework.” She considered the provisions of section 4 of the 1987 Act then noted at [30]:
“The High Court considered the phrase ‘the aggravation, acceleration, exacerbation or deterioration of any disease in Federal Broom v Semlitch (1964) 110 CLR 626; [1964] ALR 1031, (Federal Broom) holding that disease refers not only to the underlying bodily or mental disorder but to the symptoms of the disorder so that a worsening of symptoms will be an aggravation etc. of a disease even though there is no worsening of the underlying disorder.”
The Arbitrator then considered the provisions of section 9A of the 1987 Act with reference to a number of authorities including Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 and Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 256.
At [35] she considered the provisions of sections 15 and 16 of the 1987 Act. At [36] she said:
“Neilson J in King v The Commissioner of Police (2004) 2 DDCR 416 reviewed the case law in relation to the application of s.9A to injuries involving aggravation etc. of disease and confirmed consistent with his decision in Rootney v Tiger Nominees (2002) 23 NSWCCR 775 that the employment must be a substantial contributing factor to the event giving rise to the aggravation etc. rather than the path of the underlying disease.”
At [38] the Arbitrator stated:
“In Hevi Lift (PNG) v Etherington [2005] NSWCA 42 ([Hevi Lift) the Court of Appeal looked at the nature and quality of the medical evidence capable of satisfying the s. 9A requirements that the employment was a substantial contributing factor to the nature and conditions injury on which the worker relied. Leaving aside the question as to whether the so called Makita test (i.e. that test for admissibility of expert evidence generally agreed to have been established by the judgment of Mr Justice Heydon in Makita (Australia) Pty Ltd vSprowles [2001] NSWCA 305; (2001) 52 NSWLR 705), the Court there confirmed (at para 84) that ‘a court cannot be expected to and should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. The deficiency in the medical evidence cannot be supplemented by the decision maker’s ‘common sense’ or experience with cases relating to the particular injury involved.”
After considering issues such as ‘incapacity’ and the ‘five step’ process set out by the Court of Appeal in Mitchell v Central West Area Health Service (1997) 14 NSWCCR, the Arbitrator then said at [43]:
“Acting Deputy President Roche in Anijies Pty Ltd t/as Anita Villa v Marchant [2006] NSWWCCPD 118 referred to Australian Wire IndustriesPty Ltd vNicholson (1985) 1 NSWCCR 50 (Nicholson) as the leading authority confirming that a supervening disability is an appropriate circumstance which might give rise to the exercise of the s.40(1) discretion to reduce the proper sum to be awarded. However, Anijies demonstrated that it is not the existence of [a] subsequent / intervening event / disability which is relevant but the effect of that on earning capacity but for the injury. The discretion in s.40 relates only to the limbs of that section which produce the relevant difference, correcting for artificialities.”
At [44] the Arbitrator then set out her conclusion in relation to “the hip injury.” In short, the Arbitrator found at [47] that the medical evidence brought by Mr Kingi in support of his claim that his hip condition was work related did not meet the standards set out in Hevi Lift. She stated that the opinions of Drs Collins and Mahmood were devoid of any explanatory reasoning. She noted at [48] that Dr Bodel had provided a “credible alternative explanation for the necrosis.” At [49] she noted:
“Dr Bodel puts forward the view that Mr Kingi’s employment activities may have temporarily aggravated the arthritic change in the hips. This is a one line opinion, not unlike the opinion of other medical witnesses, and suffers the same evidentiary difficulties in relation to the decision as to whether employment was a substantial contributing factor i.e. whether the causal relationship meets the requirements of s.9A.”
Her conclusions stated at [50] to [55] are worth setting out in some detail. She said:
“50.Dr Bodel is also of the view that there was no evidence of an aggravation or acceleration of the underlying disease process or a worsening in the condition of the physical structures affected by the disease, as distinct from the symptoms. An aggravation etc. can consist in a worsening of the symptoms (see Federal Broom above) and does not require a worsening of the underlying disease. However, it is also the case that an issue can arise, if the aggravation is in symptom worsening and not in deterioration in the underlying disease, as to whether the aggravation continues…
51.It was argued on Mr Kingi’s behalf that, once an injury being an aggravation
of a disease of gradual process has been established by the applicant, the onus falls on the respondent to prove that the aggravation has ceased. I accept that to be the case. It assumes, however, that the applicant gets over the causal threshold in the first place.
52.In Dr Bodel’s view any symptoms occurred whilst Mr Kingi was actually
carrying out work activities and these symptoms ceases when he ceased doing those activities. The fact that Mr Kingi could not walk around the work site because of the pain in his hips did not mean, in Dr Bodel’s view, that the work caused permanent aggravation – it was more a sign that his condition was such that particular activity would cause him pain.
53.The arthritis was very well advanced already in June 2004 when the bone scan was undertaken…Being degenerative in nature, the condition would worsen with time in any case. Walking would increasingly cause pain whether or not any work activities were being carried out…there is no evidence that he required the hip replacement sooner because of his particular work activities than he would otherwise have done. There is no medical evidence brought which refutes Dr Bodel’s evidence or that tends to show positively that there was any ongoing aggravation in the sense of change or acceleration in the underlying disease process because of the work activities or that once he ceased work the aggravation or exacerbation of symptoms continued. The pain Mr Kingi suffered was a demonstration of the hip condition – not a cause of it.
54.Mr Kingi’s work did involve manual labour over a long period of time.
However, it was not so self evident from the factual evidence brought to the
Commission that I could conclude without further evidence, including medical evidence, that the hip disease or any aggravation of his hip condition had been caused by his work activities generally, in the sense that they were a substantial contributing factor to it. Neither Mr Kingi nor his employer nor his GP apparently believed this to be the case when he ceased work in January 2006. The medical evidence does not take Mr Kingi over that causal threshold.55.Taking into account all of the evidence as required by Mercer (supra) and
exercising the broad discretion referred to in Dayton (supra), I am not satisfied Mr Kingi’s employment, insofar as the claim is for a nature and conditions injury to his hips and/or the result of a particular incident occurring in December 2003, is ‘a substantial contributing factor’ to the condition he suffered in both his hips or the aggravation, exacerbation or acceleration of it.”
The Arbitrator then posed the question: “Was the Applicant totally or partially incapacitated for work as a result of a compensable work related injury?”
She noted at [56] that restrictions had already been placed on Mr Kingi’s work activities following the injury in December 2003 such that, at that stage, he was incapacitated for his pre-injury duties. He had been assessed as having a 10% WPI as a consequence of that injury. She said:
“Workcover Certificates are provided for various periods in 2004 and 2005, whilst
Mr Kingi was performing suitable duties, which note lifting, bending and squatting
restrictions…”
After noting the Respondent’s submission that the back related physical retrictions did not result in any economic incapacity, and that any incapacity related to the non-compensable hip condition, the Arbitrator said at [58]:
“I accept as a matter of fact it may well be the case that had it not been for the need for hip surgery Mr Kingi may have continued in the employ of the Respondent in a supervisory capacity. However, the view of the Court in Arnotts was that ‘an applicant’s entitlement to compensation will depend on loss of earning power.’ There is little question that a carpenter who is unable to work ‘ on the tools’ will have a loss of earning power…In that sense, I am satisfied that Mr Kingi has an incapacity based on his back injury.”
The Arbitrator concluded that Mr Kingi was partially incapacitated for work on the basis that the supervisory work he did for the Respondent demonstrated that there were “earning opportunities” available to him.
The current weekly wage rate was agreed at $755 per week [see [61] (47)]. At [62] to [64] (48) to (50) the Arbitrator considered the amount Mr Kingi would be able to earn in some suitable employment. She referred to some authorities on the issue of supervening disabilities before concluding at [65] (51):
“Doing the best I can to estimate the reduction in his earning power in the labour market open to him because of the back injury, I would have to conclude that it had been reduced to no more than 50% of his previous earning capacity.”
This calculation entitled Mr Kingi to an award of $377.50 per week. The Arbitrator then considered any discretionary factors which would cause a reduction in that entitlement. At [67] (53) she said:
“It is the case that for a long period Mr Kingi has been unable to seek any sort of employment because of his physical incapacity arising from his hip condition and surgery occurring in June 2006 and August 2007. That is true of at least the period from when he ceased work awaiting his first hip operation, the recovery from that surgery and the period awaiting the second operation and the recovery period from that second bout of surgery…When he saw Dr Bodel in March 2008 Mr Kingi reported significant improvement in relation to hip pain from the hip replacements and Dr Bodel noted that surgery had been generally successful. I estimate the recovery period to be up until 1 April 2008 prior to which date Mr Kingi would not have been fit for any work because of the surgery.”
The Arbitrator then determined that the appropriate award for the period 13 January 2006 to 31 March 2008 should be $50 per week. She concluded at [69] (55):
“From that date it is appropriate to reduce his entitlement by approximately one third to $250 per week, on the basis that his work opportunities will still to a marked degree be affected by his hip disability.”
THE SUBMISSIONS
Mr Kingi makes the following submissions:
a.Error need not be established for a review (State Transit Authority of New SouthWales v Fritzi Chemler [2007] NSWCA 249 ) (Chemler).
b.The Arbitrator misapplied the principles in Makita.
c.As the majority concluded in Australian Securities and Investments Commissionv Rich [2005] NSWCA 152, it is not necessary for an expert in his or her report to establish in detail each of the specific assumed facts relied upon.
d.The opinion of Dr Collins as to causation is based on Mr Kingi’s history of work as a carpenter on building sites. In his specialty as a general surgeon, he considered that this demanding physical work was a substantial contributing factor to the condition of the hips.
e.Mr Kingi’s statement of 12 December 2007 confirms this history.
f.Dr Collins’ opinion is corroborated by Dr Mahmood and in part by Dr Bodel.
g.Dr Bodel’s statement in his report of 25 March 2008 that “Any temporary aggravation caused by the nature and conditions of his work in general should have ceased within three or four months of him ceasing work” is a clear concession by the Respondent’ qualified doctor that, at a minimum, Mr Kingi suffered a temporary aggravation of his hip injury. This would still result in a finding of ‘injury’. The Arbitrator gave this no weight asserting that it failed the test in Makita.
h.Qualified surgeons are entitled to rely on their disclosed expertise to give opinions as to the work attribution in such circumstances. Two such specialists did but the Arbitrator rejected their opinions. That is an error.
i.The evidence establishes a clear causal relationship between the heavy work Mr Kingi performed and his degenerative hip condition.
j.The onus to prove cessation of any temporary aggravation lies with the Respondent. The aggravation (in the Federal Broom meaning of aggravation) is clearly established.
k.If Mr Kingi succeeds in establishing the hips as work related injuries, then he has been at all material times totally incapacitated and the award should be amended to reflect this.
The Respondent submits:
a.The Arbitrator’s decision should not be disturbed unless it is “wrong” (Chemler).
b.The decision was correct and certainly open on one view of the evidence.
c.That Mr Kingi suffers from a degenerative disease of the hips is not in question, the only issue being whether this was caused and/or contributed to by his employment with the Respondent between January 2002 and January 2006.
d.The Arbitrator determined that Mr Kingi’s employment was not a substantial contributing factor to the hip condition (either in a causative sense or by way of aggravation).
e.This decision was consistent with the conclusion reached by Dr Bodel, but was also made on the basis that Mr Kingi failed to meet the evidentiary thresholds required to establish injury in accordance with the Act.
f.Those thresholds and the relevant tests were correctly outlined and applied by the Arbitrator and the original decision is not vitiated by any error in that regard.
g.The Respondent concedes that an alternative finding in relation to the hips would necessitate a different finding in relation to the payment of weekly compensation generally.
h.If the first three grounds of appeal fail, then there is no basis to disturb the Arbitrator’s findings in respect of the awards.
i.The Arbitrator’s exercise of her general discretion was in accord with the legislation and a number of authorities in the Court of Appeal and the Commission
DISCUSSION AND FINDINGS
The resolution of this dispute really turns on whether the medical evidence relied upon by Mr Kingi adequately set out the factual basis on which the doctors formed their opinions, or whether they were ‘bare conclusions’ of little or no weight as discussed in Hevi Lift and Makita.
Similar issues were considered by Deputy President Roche in Duc Dien Tran v SalmatDocument Management Solutions Pty Ltd [2008] NSWWCCPD 147 (‘Tran’). In that case, the worker claimed that the nature and conditions of his employment between 1999 and November 2007, involving repeated bending and lifting heavy boxes, caused his back injury. The Arbitrator found in favour of the employer on the basis that she was not satisfied that the worker had discharged the onus on him to demonstrate that his condition was causally related to his employment.
On appeal, Deputy President Roche revoked the Arbitrator’s determination. He succinctly summarised the relevant principles at [71] – [77] as follows:
“71.The Arbitrator’s decision turned on her understanding of the kind of medical evidence needed to support a conclusion that employment is a substantial contributing factor to an injury. That understanding, based on Hevi Lift, was that “the medical needed to support a conclusion that Mr Tran’s employment was a significant [sic, substantial] contributing factor to the injury must be expert opinion the basis for which is explained by the witness expressing it” (Reasons, paragraph 26). She concluded that none of the medical evidence “brought by the Applicant (or for that matter the Respondent) meets that standard.”
72.The Arbitrator has overstated the effect of the principles in Hevi Lift and their application to section 9A of the 1987 Act. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; (2004) 4 DDCR 348) to be decided after a consideration of all the evidence. However, as noted by Acting Deputy President Snell, “It is not purely a medical question” (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor [2006] NSWWCCPD 222 at [31])…
73.In Hevi Lift, the worker suffered extreme pain in his back after getting up from a couch in staff quarters in which he was required to live by his employer and where he was on call 24 hours a day. An MRI revealed a central prolapsed disc at L4/5 requiring surgery. Because the worker was on call at the time of the injury, it was accepted that the injury occurred in the course of his employment, though he was not performing any work duties. The medical evidence included an opinion from Dr Selby-Brown that the worker’s employment had been “a significant contributing factor to his present condition” and from the treating specialist, Dr Khoo, that it was “possible his work could have contributed to his condition”. In stating the “medical issue”, McColl JA (Mason P and Beazley JA agreeing) said (at [21]):
‘Dr Selby-Brown did not state any factual basis for his opinion that the respondent’s employment with the appellant had been ‘a significant contributing factor to his present condition’ or identify any aspect of his work that could have contributed to his condition. He did not make any comment regarding the relationship, if any, between the aetiology of the L4/5 disc protrusion he diagnosed and the respondent’s employment. Nowhere in either of his reports did he express the opinion that either of the pleaded mechanisms of injury caused or contributed to the disc rupture, let alone explain the factual or scientific basis upon which such a conclusion might be based. He simply answered the legal test posed by s 9A(1) of the Act in the affirmative.’
74.The trial judge relied on the medical evidence, his common sense and the sequence of events to find that employment was a substantial contributing factor to the injury. On appeal, it was held that the doctors’ opinions were no more than a “bare ipse dixit” that carried no weight and “In the absence of any identified factual basis for their opinions that the respondent’s work could possibly be (Dr Khoo) or was a substantial contributing factor to his injury the reports were inadmissible and, if admitted, carried no weight” (McColl JA at [80]). Her Honour added (at [90]) that, whilst the trial judge was “entitled to rely upon his common sense evaluation of the sequence of events” (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 725 and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464), he “was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, Dr Selby Brown formed his opinion so as to conclude the Makita test was satisfied” (at [82]).
75. Her Honour observed (at [91]) that the trial judge was, however:
‘Entitled to make the ‘commonsense’ findings concerning matters likely to impose stress upon a back to which I have earlier referred (primary judgment at [41] – [44]). They were both within the ‘realm of common knowledge and experience’ spoken of by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez above, at 724 and the specialised knowledge he had acquired as a judge of the Compensation Court.’
76.The trial judge was therefore entitled to make some “commonsense” findings as to causation, but his Honour should not have taken that step in the face of the employer’s medical reports which opined that the work had not caused his back injury without explaining why he rejected their opinions (McColl JA at [94]).
77.The principles discussed in Hevi Lift were considered and applied in Edmonds, an appeal from the Commission. In Edmonds, the Arbitrator and Deputy President erred when they relied on a medical report from Dr Rivett that contained no description of the worker’s duties that might have provided a factual basis for the proposition advanced by the doctor that the worker’s “problems are work related” (per McColl JA at [137]).”
In the present case, I am of the view that the Arbitrator has similarly overstated the effect of the principles in Hevi Lift and their application to section 9A of the 1987 Act. Dr Mahmood and Dr Collins set out in some detail the nature of Mr Kingi’s work and aspects of it that could have contributed to the condition of his hips. As Acting Deputy President Snell said in Stratco (NSW) Pty Ltd v Korunovic [2009] NSWWCCPD 16 at [69]:
“A history of injury contained in a medical report may be received as evidence of the fact under section 60 of the Evidence Act 1995 (NSW): Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 at [42], per Bell JA (as her Honour then was). The rules of evidence do not apply in the Commission, and “in order to find error of law based upon absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not”: South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421 (‘Edmonds’) per McColl JA at [129]. A matter may be proved by material, even if not strictly admissible, although this is subject to the restrictions on the Commission informing itself, referred to in Edmonds at [127]. One way in which the Respondent Worker could prove the nature of his work duties was through histories contained in medical reports.”
(See also Australian Securities & Investments Commission v Rich [2005] NSWCA 152 at [136])
Dr Bodel did not describe Mr Kingi’s duties although noted his employment as a carpenter. That this type of work would cause stresses and strains on the body is I think well within the” realm of common knowledge and experience.” Dr Bodel in his first report of 14 October 2004 clearly stated that “The nature and conditions of work have aggravated the arthritic process but have not caused it.”
Neither party has taken issue with the opinion of Dr Bentivoglio nor was it considered by the Arbitrator. His report appears to have been commissioned to assess Mr Kingi’s back impairment for the purposes of section 66 of the 1987 Act. Although Dr Bentivoglio opined that “The degeneraative disease in his hips and shoulder are [sic] constitutional in origin and are [sic] not related to work” his report is silent on the question as to whether the work could have aggravated the osteoarthritis in the hips.
Neilson J in Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC 19; (1995) 11 NSWCCR 656 at 667 said:
“...The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has repeatedly referred to it as a ‘meaningless concept’. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. ...”
In my view, there is a consensus of opinion from Drs Mahmood, Collins and Bodel that the work performed aggravated the condition of Mr Kingi’s hips such that his injury ought be considered as being an aggravation of a disease within the meaning of section 16 of the 1987 Act. That evidence satisfies the Makita and Hevi Lift tests for the reasons stated.
As Burke CCJ said in Cant v Catholic Schools Office [2000] NSWCCR 37 at [17] (‘Can’t) the question to consider is:
“...irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
I am satisfied that the duties performed by Mr Kingi throughout his employment with the Respondent, and particularly subsequent to the injury in December 2003, when he was required to do extensive walking, caused a continuing aggravation of the osteoarthritic disease in his hips.
As to whether the provisions of section 9A of the 1987 Act have been satisfied, I am again guided by the observations of Burke CCJ in Cant where he said at [21]-[23]:
“What constitutes relevant injury is defined in s 4 of the Act. That encompasses three elements that might loosely be categorised as frank injury, employment disease and aggravation of any disease. As expressed above, I am of the view that the applicant's injury falls within the provision of s 4(b)(ii) being:
the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration.
21. If that be so, then s 9A requires that the employment be a substantial contributing factor to the aggravation etc. of the disease as distinct from the disease itself. That poses the conundrum raised in addresses. If the effect of the employment is to produce a 1 per cent worsening of the disease process, does the section merely require that the employment be a substantial factor to that 1 per cent deterioration rather than to the overall disease? If one just substitutes the words of s 4(b)(ii) for the word "injury" appearing twice in s 9A it certainly seems tolerably clear that the employment is merely required to substantially contribute to the minor aggravation. One gets the collective provision:
No compensation is payable under this Act in respect of an aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration unless the employment concerned was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration.
23 That gets rather repetitive but conveys the message that the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is the contribution to the aggravation not to the overall disease.”
In the present case, there is ample evidence to support the proposition that the work performed by Mr Kingi substantially contributed to the aggravation of his hip disease.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in Chemler) I am of the view, for the reasons stated, that Mr Kingi has sustained an injury to his hips in the form of an aggravation of a disease within the meaning of section 16 of the 1987 Act.
That being the case, then, as the Respondent rightly concedes, that finding necessitates a different finding in relation to the payment of weekly compensation generally, such that the Arbitrator’s award must be revoked.
I accept the Arbitrator’s finding that Mr Kingi was totally incapacitated for employment by reason of his back and hip injuries from 13 January 2006 to 31 March 2008. Thereafter, given the improvement in the condition of his hips, I consider Mr Kingi to have been partially incapacitated for employment. The Arbitrator reduced Mr Kingi’s entitlement “by approximately one third to $250 per week on the basis that his work opportunities will still to a marked degree be affected by his hip disability.”
I accept that Mr Kingi’s work opportunities would be significantly affected by his hip disability in addition to his back injury. At [62] (48) of her Reasons, the Arbitrator considered this issue, noting that Mr Kingi had always worked in the same occupation in the building trade with no qualifications for other work. Given his age, retraining “may not be an option.” His physical restrictions are significant such that I regard his ability to earn in a labour market reasonably accessible to him to be $250.00 per week. That finding entitles him to the maximum statutory rate for a single worker (as adjusted) from 14 July 2006. It follows that he is also entitled to section 60 expenses for both his hip and back injuries.
DECISION
Paragraphs 1, 2, 3 and 4 of the decision of the Arbitrator dated 5 November 2008 are revoked and the following decision made in its place:
(1).The Respondent to pay the Applicant weekly compensation at the rate of $755.00 per week from 13 January 2006 to 13 July 2006, pursuant to section 36 of the 1987 Act.
(2)The Respondent to pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants, as adjusted, from 14 July 2006 to 31 March 2008, pursuant to section 37 of the 1987 Act.
(3)The Respondent to pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants, as adjusted, from 1 April 2008 and continuing, pursuant to section 40 of the 1987 Act.
(4)Credit given to the Respondent for any payments of weekly compensation made to the Applicant to date.
(5)The Respondent to pay the Applicant’s section 60 expenses on production of accounts or receipts.
Paragraph 5 of the decision of the Arbitrator dated 5 November 2008 is confirmed.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President
19 March 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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