Labour Linq Pty Ltd v Mills
[2006] NSWWCCPD 316
•22 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Labour Linq Pty Ltd v Mills [2006] NSWWCCPD 316
APPELLANT: Labour Linq Pty Ltd
RESPONDENT: Robert Mills
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER: WCC666-06
DATE OF ARBITRATOR’S DECISION: 26 April 2006
DATE OF APPEAL HEARING: 15 November 2006
DATE OF APPEAL DECISION: 22 November 2006
SUBJECT MATTER OF DECISION: Reasons; nexus; incapacity
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:Oral
REPRESENTATION: Appellant: Mr J Dodd of counsel instructed by Hunt & Hunt
Respondent: Mr P Perry of counsel instructed by Monaco
ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s decision dated 26 April 2006 are revoked and the following orders made in their place:
1. That the Respondent pay the Applicant weekly compensation at the rate of $547.20 per week from 18 June 2003 to 3 December 2003 under section 36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants from 4 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987.
Paragraphs three, four and five of the Arbitrator’s decision of 26 April 2006 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 22 May 2006 Labour Linq Pty Ltd (‘the Appellant Employer/ Labour Linq’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 April 2006.
The Respondent to the Appeal is Robert Mills (‘the Respondent Worker/Mr Mills’).
On 13 September 2000 Mr Mills injured his back while working for Labour Linq (a labour hire company) at the premises of LG Electronics (‘LG’) at Rydalmere. The injury initially required Mr Mills to take only two weeks off work. No radiological investigations were done until 30 June 2003 when a CT scan reveal an L4/5 disc bulge. Whilst it is not disputed that an incident occurred at work on 13 September 2000, it is disputed that that incident caused the disc bulge discovered on CT in 2003.
A detailed analysis of the history between 13 September 2000 and 30 June 2003 is set out below.
On 18 January 2006 an Application to Resolve a Dispute was registered in the Commission claiming weekly compensation from 1 October 2000 to date and continuing. That claim was heard by a Commission Arbitrator on 18 April 2006. In a reserved decision delivered on 26 April 2006 the Arbitrator found in favour of the Respondent Worker.
Labour Linq seeks leave to appeal that decision.
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’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the award made is challenged on appeal and, therefore, the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 April 2006, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $547.20 per week from 18 June 2003 to 17 December 2003 under section 36 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependents from 17 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987.
3.Such weekly payments to continue in accordance with the provisions of the Act.
4.That the Respondent pay the Applicant’s section 60 [sic] of the Workers Compensation Act 1987 expenses on production of accounts of receipts.
5.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the Respondent Worker’s disc protrusion at L4/5 was causally related to the injury at work on 13 September 2000 (‘nexus’);
(b)failing to appreciate the Appellant Employer’s submissions relating to the Respondent Worker’s lack of disclosure of prior back pain or back injury in the Personal Medical History document completed for Cargill on 1 June 2001 (‘nexus’);
(c)failing to refer to or deal with the evidence of Dr Silver in his report of 30 March 2006 (‘reasons’);
(d)failing to give adequate reasons in respect of her findings regarding section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘reasons’);
(e)failing to give adequate reasons as to why she found that employment was a substantial contributing factor to the Respondent Worker’s disc pathology at L4/5, when such pathology was only revealed three years after the injury (‘reasons’);
(f)failing to find that the injury on 13 September 2000 did not result in any incapacity and that the Respondent Worker had recovered from the effect of that injury (‘nexus’), and
(g)ignoring evidence of the Respondent Worker’s partial incapacity up to the surgery in December 2005 (‘incapacity’).
The above issues are identified in the Appellant Employer’s submissions filed on 22 May 2006. At the oral hearing of the appeal on 15 November 2006 counsel for the Appellant Employer argued that, in addition to the above errors, the Arbitrator was in error in that she “mixed up” the 9A issue with the issue of nexus. This argument is dealt with below under ‘nexus’.
I formally record my thanks to the counsel who appeared at the oral hearing of this appeal. Their detailed and succinct submissions were of great assistance.
THE EVIDENCE
Mr Mills’ evidence is contained in four statements dated, 17 June 2004, 27 May 2005, 16 March 2006 and an undated and unsigned statement headed ‘Statement of Robert Graham Mills’ (‘the undated statement’). He did not give oral evidence.
Mr Mills was born on 28 July 1977. His work history included work as a farm hand on a chicken farm in 1996 and work doing rubber moulding at a factory in 1997. In or about 1998 or 1999 he started working for labour hire companies such as Labour Linq. He was required to work at different businesses. His duties usually involved process work, picking items from stock, wrapping them to be sent, or unpacking. He initially worked at Sydney Warehousing and Distribution Services and then at LG in June 2000.
In June 2000 he was directed to work at the premises of LG Electronics (‘LG’) at Rydalmere where he worked unloading containers. This work involved lifting stock inside containers and carrying it a distance of up to 50 feet and placing it on pallets which would then be collected by forklifts. Forklifts also entered the containers to remove pallets.
On 13 September 2000 Mr Mills was unloading a container load of fridges that weighed about 50 kilograms each. The fridges were stacked so that some were standing upright and others were lying flat on top of the upright fridges. Mr Mills reached up and pulled a fridge down. When he had the weight of the fridge and was attempting to lower it to the floor he felt the impact of a forklift grab arm against his lower back. Mr Mills states that he was “taking a significant amount of the weight of the fridge and twisting at the same time” (Respondent Worker’s statement, 27 May 2005 paragraph 19). He adds that the grab arm kept pushing on his lower back, as he was bearing the weight of the fridge, and he was jolted forward. Though he was struck by the forklift and experienced intense pain in his back, Mr Mills was able to lower the fridge to the ground rather than drop it.
Mr Mills completed an accident report form and performed light duties for the rest of the day. He attended on his general practitioner, Dr Kazmierczak, and was certified unfit for work from 14 September 2000 and fit for suitable duties from 15 September to 22 September 2000 as a result of a “soft tissue injury to the low back” (medical certificate Dr Kazmierczak, 13 September 2000). In fact he was off work, and paid compensation, until 22 September 2000.
When he returned to work at LG on or about 23 September 2000 he still had low back pain and, as a result of that pain, he performed light duties. Initially the light duties consisted of operating a ride on sweeper but the light duties options were limited. Exactly what duties Mr Mills performed after his injury is unclear. His undated statement suggests that he did gradually get back into normal work but he added that he would take a rest every three hours or so and would have to lie down. Someone at LG offered him a back brace which he wore for two months until he stopped work in December 2000. In his statement of 28 July 2005 Mr Mills says that when he returned to work he needed to rest and lie down for a couple of hours to ease the pain at the end of the day. Whilst the evidence is far from ideal, it is sufficient to support a conclusion that, as a result of his back pain, Mr Mills did less work after his injury than he did before 13 September 2000. The Appellant Employer called no evidence to the contrary.
After ceasing work with Labour Linq in December 2000, Mr Mills was out of work until he moved to Junee with his fiancé in about June 2001. He states that in the period up to June 2001 he looked for work that did not involve excessive manual exertion (Respondent Worker’s statement 28 July 2005, paragraph 31). In Junee he obtained process work with Cargill Foods (‘Cargill’) in June 2001. Before starting work with Cargill Mr Mills completed a document headed ‘Personal Medical History’ on 1 June 2001. On that document he answered ‘no’ to each of the following questions:
· Have you ever had any trouble with your back or neck?
· Have you ever worn a back brace or support?
· Have you ever had any chronic back problems or back surgery?
· Have you had a back, knee or shoulder injury or problem?
· Have you had a strain or sprain?
On the next page of the same form Mr Mills answered ‘no’ to the question “Have you ever had a workers compensation claim?” He stated that his last doctor’s consultation was for a “regular check up” for “blood test/weight”.
The work with Cargill was said to be “much lighter”. It involved separating meat on a conveyor belt. Whilst the work involved standing, Mr Mills says it was “very easy going” as it merely required placing meat on the conveyor belt into different sections in different trays with a break every hour or so when he could walk around (Respondent Worker’s statement 28 July 2005, paragraph 32). His back pain continued during this period. The job with Cargill ceased in about September 2001.
Whilst working for Cargill Mr Mills suffered an abdominal strain on 12 July 2001 when lifting meat trays from the floor. This strain rendered him unfit for work for a number of days and he produced WorkCover medical certificates from Dr Potts of Junee.
Mr Mills ceased work at Cargill because it made him feel sick (Respondent Worker’s undated statement, paragraph 28) and he has not return to work since. He initially remained in Junee after ceasing work with Cargill but eventually returned to live in Sydney. While still living in Junee he attended on the Junee Medical Clinic (Drs Barsoum and Nguyen) with, among other things, the following complaints:
· 23 July 2001 – abdominal pain;
· 14 August 2001 – abdominal cramp;
· 4 December 2002 – lethargy; malaise; “straight leg raising: Left – 75 deg. Right – 70 deg. Tender, L3/4/5”
· 11 December 2002 – poor sleep; early morning wakening; depressed mood; low self esteem; irrational fear; panic attacks; lost interest;
· 5 March 2003 – sore throat, nasal congestion;
· 18 June 2003 – “back pain. Shooting to Left”;
· 27 June 2003 – “back pain. radiating to Lt leg – straight leg raising : left – 60 deg. Right – 80 deg”;
A CT scan was performed on 30 June 2003 which revealed a left sided disc protrusion at L4/5 and suggested some abnormality at L5/S1.
Mr Mills attended on Dr Barsoum on a number of occasions for his back and leg pain between June 2003 and April 2004. The doctor’s typed notes make no reference to the cause of Mr Mills’ back problem. No report has been tendered from Dr Barsoum.
Dr Barsoum referred Mr Mills to Dr Pell, neurosurgeon, for treatment. Dr Pell examined Mr Mills in Wagga Wagga on 18 September 2003 and reported to Dr Barsoum on 23 September 2003 recommending surgery. The surgery was not carried out until 2 December 2005. It revealed a “firm chronic bulging disc with firm ridge and no soft component noted at the origin of the L5 nerve root” (Dr Pell report, 7 December 2005). The L5 nerve root was decompressed bilaterally.
Mr Mills’ former solicitors sent him to Dr Leitl, orthopaedic surgeon, at Wangaratta for a medico legal report on 20 October 2003. He took a history that Mr Mills had been fit and well until 13 September 2000 when he was hit in the back by the tine of a “grab system forklift”. He said he developed instant pain in the lower back. After 10 days off work his back pain had improved a little and he return to work on light duties which involved cleaning floors on a ride on floor sweeper. He continued that work on and off for the next month but required time off work. In addition he was advised by his supervisor to rest his back if it became too sore during work hours. He said that he frequently rested at work because of his pain.
Dr Leitl’s history continued:
“During this time his back pain became gradually worse, and he noted the onset of painful spasms radiating from the left lower back down the posterior left thigh to the back of the left calf.”
In respect of Mr Mills’ work at Cargill, Dr Leitl noted that “his employers were aware of his back condition and gave him lighter work where he did not have to do any lifting” (Dr Leitl, page two). Dr Leitl noted that after leaving Cargill for unrelated reasons Mr Mills’ back continued to gradually worsen and the left leg pain became more troublesome and more constant, causing a limp and difficulty walking around, bending and lifting. Mr Mills’ situation was complicated by the development of depression in December 2002.
Dr Leitl’s history of left leg pain developing some time after the September incident is reasonably consistent with Mr Mills’ statement of 17 June 2004 at pages two and three that:
“My recollection is there was no problem with my leg at first. Then there was [sic] some sporadic pains in the legs which were not significant. As time went on it got worse and worse and I would say that now both the leg pain and the lower back pain are about equal in terms of causing me trouble.
It is difficult for me to pin point when the leg symptoms came on but I have a feeling that it was whilst I was still at Sydney. I was certainly noticing it by the time I was down at Junee.
As time went on and the pain got worse and I became more depressed. Eventually the doctors told me that is Dr Barsoum that I should get a CT scan to check out the injuries.”
Under ‘opinion and comment’ Dr Leitl states:
“In my opinion, and in particular, in the absence of any other history of back injury, his lower back condition and left leg pain, due to a left L4/5 disc prolapse, is consistent with and due to the incident which occurred on 13 September 2000.” (emphasis added)
Dr Leitl adds that Mr Mills said that he repeatedly complained to his medical attendants, but no investigations were performed until June 2003. Given the notes I have quoted from Dr Barsoum above, that history seems unlikely. However, for reasons set out below, I do not believe that this error is fatal to the Respondent Worker’s claim.
In his 18 March 2005 report, Dr Leitl notes the contents of unserved reports from Dr Schutz dated 21 September 2004 and Dr Matheson dated 6 October 2004 (both obtained on behalf of the Appellant Employer). He expresses his disagreement with the opinions expressed in those reports and states that in his opinion:
“…the mechanism of injury is consistent with the production of a disc lesion. Simply being struck on the back a glancing blow by the grasping plate of a forklift is unlikely to have produced a disc lesion, but, as the worker was steadying and lowering a refrigerator to the floor, the contact of the forklift with his back would have produced an unsettling extra strain on the back. I would envisage that, during the accident, Mr Mills was stooped forward, and this additional glancing contact with the forklift would have produced a twisting element and such a ‘flexion and rotation’ strain on the back is a classical mechanism of lumbar disc injury.”
Dr Leitl’s history is, subject to some uncertainty as to whether Mr Mills was “stooped forward”, generally consistent with Mr Mills’ statement of 27 May 2005. At paragraph 19 of that statement Mr Mills says that he had reached up to pull down a fridge and:
“…was in the process of transferring the fridge weight onto my chest, and then placing the fridge on the ground beside me. I took the full weight of this heavy fridge, and attempted to lower it to the ground. As I was dong so, I felt an impact on my lower back. My hands were under the bottom of the fridge. This meant that I was taking a significant amount of the weight of the fridge and twisting at the same time in order to avoid the fridge from striking me. The impact of the grab arm of the crane kept pushing on my lower back, as I was bearing the weight of the fridge.” (emphasis added)
Dealing with Mr Mills’ post accident work history, Dr Leitl agreed with Dr Matheson that many people in the community continue to work despite the presence of clinical and radiological evidence of a disc prolapse. In respect of Dr Schutz’ comment that it was more likely that some event around June 2003 was responsible for the development of the disc prolapse, Dr Leitl noted Dr Barsoum’s entry for the attendance on 4 December 2002 (“straight leg raising: Left – 75 deg. Right – 70 deg. Tender, L3/4/5”) and added that there must have been a complaint of back pain for the lumbar examination findings to be recorded.
Mr Mills was examined by Dr Brooder, consultant neurologist, for medico legal purposes on 20 October 2003 (report 22 October 2003). He took a history of Mr Mills being struck by the forklift while his hands were above his head supporting a fridge and, as a result, being knocked forward. The doctor recorded that approximately one month after the accident on 13 September 2000 Mr Mills developed “intermittent sharp shooting pains extending into the posterior aspect of his left buttock and then down into the posterior aspect of his left thigh and lower leg”. As Dr Brooder provided no direct opinion on causation in his report of 22 October 2003, the Respondent Worker’s solicitors wrote to him in 2005 providing him with numerous additional documents, including, among other documents, the notes from Dr Barsoum, and sought his opinion on that issue.
In a five page report dated 29 March 2005 Dr Brooder reviewed all the documents sent to him and set out his assessment on pages three to five inclusive. Dr Brooder noted that:
· the fact that Mr Mills’ low back pain in September 2000 failed to resolve and then extended into his buttock and the posterior aspect of his left leg, was consistent with the development of a painful left L5 radiculopathy rather than a soft tissue injury;
· there was no history of low back pain prior to the September 2000 incident;
· the abdominal injury on 13 July 2001 was not associated with any specific low back injury;
· the time course and history related to Mr Mills’ back injury was “quite consistent with him having initially sustained an injury involving his L4-5 intervertebral disc, which was subsequently associated with an intervertebral disc protrusion extending to involve his left L5 nerve root” (page four);
· the fact that a period of almost three years elapsed between the time of his injury and the demonstration of the injury on the CT scan was also quite consistent;
· he agreed with the opinions of Dr Leitl in his report of 18 March 2005, and
· there is a direct relationship between Mr Mills’ current medical condition and the work accident on 13 September 2000.
The medical case for the Appellant Employer consisted of several reports from Dr Silver who first examined Mr Mills on 19 March 2004 (report 25 March 2004). Dr Silver took a history that the forklift struck Mr Mills in the sacro-iliac region while his was reaching up to drag one of the fridges down. Based on that history the doctor concluded that the mechanism of injury was unlikely to have caused an L4/5 disc injury. The clinical notes from Dr Kazmierczak confirm that Mr Mills was struck in the low back. Mr Mills’ statement of 27 May 2005 gives a more detailed and, in my opinion, more accurate description of the exact mechanism of the injury. I do not accept Dr Silver’s conclusion (repeated in his report of 15 July 2005) that Mr Mills was merely hit in the low back and pushed forward suffering a hyperextension injury.
Dr Silver also expressed reservations about several aspects of Mr Mills’ history. Whilst Dr Silver had no doubt that Mr Mills had significant spinal pathology he thought it was difficult to reconcile that Mr Mills had no treatment in the six months since he’d seen Dr Pell. The lack of treatment in that six month period is consistent with Mr Mills’ lack of treatment in the period after his initial injury.
In his report of 15 July 2005 Dr Silver thought that no further treatment was indicated but acknowledged that an MRI scan would be appropriate.
Dr Silver prepared two further reports in this matter on 13 and 30 March 2006. In the report of 13 March 2006 he re-examined Mr Mills and reviewed reports from Dr Pell and the MRI scan dated 1 December 2005. The MRI scan confirmed the presence of a moderate sized left disc bulge at L4/5 with mild compression and impingement of the left L5 nerve root. Mr Mills was adamant that his symptoms had not improved after the surgery of 2 December 2005.
Dr Silver stated that a hyperextension injury was an unusual mechanism to produce a posterior disc herniation. He then added at page six:
“I feel that, on the basis of the history of there being no previous back problem, that Mr Mills be given the benefit of the doubt with respect to the possibility of his work related injury being responsible for his ongoing symptoms.” (emphasis added)
At page seven he said:
“On the basis of his history, notwithstanding the unusual mechanism of injury, I feel that there is, on the balance of probabilities, certainly a possibility that his employment on 1 October 2000 [sic] was the precipitating factor with respect to his lumbar injury.”
On 27 March 2006 the solicitors for the Appellant Employer wrote to Dr Silver providing him with copies of the documents produced by Cargill and asking whether:
“…noting the subsequent work incident with Cargill Foods Australia on 12 July 2001, you consider the alleged injury with our client on 13 September 2000 was a substantial contributing factor. In that regard, we note your comments previously of concern that you consider [sic] the injury with him was hypoextension [sic] rather than flexion.”
Dr Silver replied on 30 March 2006 that it was possible but unlikely that the abdominal strain in July 2001 was caused simply by lifting a tray of meat. In respect of the pre employment medical history questionnaire with Cargill, Dr Silver makes the point that Mr Mills’ history to him was that he told the examining doctor at Cargill about back pain he had for the previous 12 months. Dr Silver suggested that no significant back problem was evident at the clinical examination done prior to starting work at Cargill. Unfortunately, no information is available from the doctor who conducted that examination. Dr Silver concluded his 30 March 2006 report saying:
“In the circumstances and considering that it was not until 2002 when Mr Mills developed his symptoms of sciatica, that the incident that is alleged to have been caused by the injury on 13 September 2000 was not the substantial contributing factor to his back problem. I have observed previously that the hyper (not hypo) extension mechanism of the injury was unlikely to produce a posterolateral disc herniation.”
REVIEW
The nature of a review and the role and function of a Presidential Member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Nexus
The Arbitrator found at paragraph 33 of her Statement of Reasons for Decision (‘Reasons’) that:
“In the absence of any evidence of injury to the back or pre-existing back conditions, and bearing in mind the opinions of Dr. Leitl, that many people in the community continue to work despite the presence of a disc prolapse, and Dr. Brooder, that the period of almost three years between the time of his injury and the subsequent demonstration of the injury on CT scan is consistent with the incident of 13 September 2000 having caused the injury, I find that the Applicant’s employment was a substantial contributing factor to his injury.”
Counsel for the Appellant Employer submits that the Arbitrator has confused the issue of ‘injury’ on the one hand and the issue of ‘nexus’. By ‘nexus’ I mean the connection between Mr Mills’ found pathology and his work accident.
I do not believe the Arbitrator has confused the issue of injury and nexus. It is common ground that the Respondent Worker must establish that the pathology found to exist in his back resulted from his work accident of September 2000. Though the Arbitrator’s language was expressed in terms of section 9A, she was clearly satisfied that the pathology found on CT scan in June 2003 had resulted from the work accident. That finding was open to her on the evidence and was supported by her logical analysis of the evidence which revealed the basis for her decision. She based her conclusion on the absence of any prior back symptoms and the opinions of Drs Leitl and Brooder. It was open to her to accept that evidence and the evidence of Mr Mills that he had continuing symptoms since 13 September 2000.
Employment does not have to be a substantial contributing factor to the incapacity said to have resulted from the work incident or to the precise medical condition that subsequently develops. Provided there is a direct chain of causation between the relevant work event and the subsequent incapacitating condition so that the latter has resulted from the former, a worker is entitled to succeed (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 731). What is required is a commonsense evaluation of the casual chain with due regard to the statutory formula by asking the question whether the incapacity has “resulted from” the work event in question (see Kooragang Cement Pty Ltd v Bates (1994) 10 NSWLR 452 at 463-464) (‘Kooragang’)). In my opinion the Arbitrator did apply a common sense approach to the test of causation and she accepted that the relevant connection existed in the present case.
Further or in the alternative, it is my view that the ‘substantial contributing factor’ test is a more demanding test of causation than the ‘results from’ test. Applying either test in the present case it is my opinion that the Respondent Worker is entitled to succeed with his claim. The Arbitrator was clearly satisfied, as I am, the Mr Mills’ L4/5 disc lesion resulted from the accident on 13 September 2000.
Next, it is submitted that the Arbitrator failed to appreciate the Appellant Employer’s submissions relating to Mr Mills’ lack of disclosure of prior back pain in the documents produced by Cargill. The Arbitrator dealt with this point at paragraph 16 of her Reasons where she said:
“In this regard I note that the Respondent submitted that the credibility of the Applicant is seriously in issue. The Applicant has submitted that it is not uncommon for individuals to fail to admit to a previous injury, especially when they are keen to get back to work. I accept that this is a reasonable explanation for Mr. Mills’ failure to disclose his back injury and I do not take this as an indication that he has been generally untruthful about the matters in dispute. In support of this position I note the consistent histories he appears to have given the various doctors he has seen and in his statements.”
The Appellant Employer’s challenge to this finding is that the more plausible interpretation for Mr Mills not disclosing his back condition on the Cargill documents is that he was not suffering from any back symptoms at that time. I do not agree that that is the more plausible interpretation. The Arbitrator relied on the medical histories and Mr Mills’ statements. His statements are of significance as they support his complaint of continuing back pain since September 2000 and provide an explanation for why he did not seek medical treatment before December 2002. In his statement of 27 May 2005 at paragraph 36 Mr Mills said:
“I did not see any other doctors or seek any further treatment after the accident in September 2000, as I was told that my injuries were only soft tissue injury. For this reason, I continued exerting myself in my day-to-day activities that I tried, and in the work I could find, and simply put up with the pain, as I thought it would go away. But the pain did not go away and became constant. It had become worse over time. It had started to spread to my left leg.” (emphasis added)
The weight to be given and relevance to be attached to evidence before an Arbitrator has been considered by the Commission in numerous cases. In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it was noted:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]).” (per Byron DP at [54])
In addition, in Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSWWCCPD 17 at [26] it was noted:
“It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).”
Applying the above principles to the present case, I do not believe the Arbitrator has made any error of fact, law or discretion in her finding on nexus.
Reasons
A Commission Arbitrator has a common law and statutory duty to provide reasons for his or her decision. The nature and extent of the duty to give reasons has been discussed in many cases. In NSW Department of Education and Training v Sanders [2004] NSWWCCPD 89 (‘Sanders’) it was noted that:
“11. An Arbitrator has a statutory duty to provide adequate reasons for decision. Section 294(2) of the 1998 Act and Rule 73 require the Commission to provide reasons for decision in the determination of a dispute. (See also Absolon v NSW TAFE [1999] NSWCA 311 and YG v Minister for Community Services [2002] NSWCA 247). Failure to provide adequate reasons is not only a breach of an Arbitrator’s statutory and common law obligations, it is an error of law (Sydney Water Corporation Ltd v Aqua Clear Technology, Supreme Court of NSW, per Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267). If the failure is established, it may be a ground to revoke the decision made. An Arbitrator is not required to give lengthy and detailed reasons for decision, nor to recite and analyse in detail the content of the evidence and submissions. The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). The Commission is not a court and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (see Objectives of the Commission in section 367 of the 1998 Act). Fundamentally, the reasons given must be capable of conveying adequately to the parties, the basis upon which the Arbitrator came to the decision that was made.”
To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully (see Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6 at [46]. In YG & GG v. Minister for Community Services [2002] NSWCA 247 Hodgson JA, held at [37] and [38]:
“Furthermore, inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE [1999] NSWCA 311 at [67].
38 In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ.”
The Arbitrator in the present matter has clearly set out a summary of the evidence and the basis for her conclusions. She accepted the Respondent Worker’s history and accepted the evidence of Drs Brooder and Leitl. However, she did not refer to the report of Dr Silver of 30 March 2006 in which he changed the opinion on causation he expressed in his report of 13 March 2006. The Arbitrator did refer to and rely on the report of 13 March 2006. At paragraph 32 the Arbitrator said:
“Taking Dr. Silver’s comments on 13 March 2006 into account together with the opinions of Drs Leitl, Brooder and Pell, I find that the weight of medical evidence supports the Applicant’s position that he received an injury arising out of or in the course of employment with the Respondent, Labour Linq Pty Ltd on 13 September 2000.”
The Arbitrator was in error in relying on Dr Silver’s opinion in his report of 13 March 2006 to support her finding in favour of the worker when a later report had been tendered from the doctor giving a different conclusion was not considered. However, I do not believe that this error justifies the Arbitrator’s decision being revoked in circumstances where the Arbitrator’s reasons make it clear that she accepted the conclusions of Drs Brooder and Leitl. Those opinions were always contrary to the initial and last opinion expressed by Dr Silver. The change of opinion by Dr Silver in his report of 30 March 2006 was based on speculation by the doctor about what may or may not have been evident at the examination which allegedly took place before Mr Mills started work at Cargill. The other matters referred to by Dr Silver in the 30 March 2006 report (the development of sciatica in 2002 and the mechanism of the injury) were both matters dealt with in other evidence which the Arbitrator accepted in preference to Dr Silver’s opinion.
I do not believe that the failure to refer to Dr Silver’s report of 30 March 2006 warrants an inference that the Arbitrator has not exercised her jurisdiction according to law. I believe that the Arbitrator’s decision is well reasoned, deals adequately with the issues and properly indicates the basis for the conclusions reached.
The decision is also challenged on the ground that the Arbitrator failed to give adequate reasons as to why she found employment to be a substantial contributing factor to the Respondent Worker’s disc pathology at L4/5. I do not accept that this ground has been established. The Arbitrator’s reasons disclose that she accepted the expert evidence of Drs Brooder and Leitl and the evidence of the Respondent Worker that he had continuing symptoms from 13 September 2000. She made specific reference to the absence of evidence of any pre existing back condition. In these circumstances I believe that her reasons clearly stated the basis for her conclusions.
I do not accept that there has been any relevant error of fact, law or discretion by the Arbitrator that would justify revoking the Arbitrator’s decision.
Incapacity
It is submitted by the Appellant Employer that the Arbitrator was in error in awarding compensation under section 36 of the 1987 Act on the basis of total incapacity from 18 June 2003. The Respondent Worker has made no challenge to the Arbitrator’s failure to award weekly compensation for the period up to 18 June 2003.
The challenge to this part of the decision is that the Arbitrator disregarded the medical opinions on both sides regarding Mr Mills’ partial incapacity up to the operation in December 2005. On the question of incapacity, the Arbitrator referred to the evidence of Drs Leitl and Brooder in their reports of October 2003 and also referred to the evidence of Dr Silver in his report of 13 March 2006 and Mr Stambouliah, consultant psychologist, in his report of 23 March 2006. The Arbitrator quoted the following passage from Dr Brooder’s report of 23 October 2003:
“As a result of his L4-5 intervertebral disc injury and protrusion Mr. Mills has developed a significant disability involving his lumbar spine. He is unable to undertake virtually any increased physical activity and he is unable to undertake activities that involve prolonged or repetitive forward bending or attempts at lifting. He is also limited in his ability to stand and walk for prolonged periods.”
Additional relevant evidence on the issue of incapacity is found in the report of Dr Silver dated 25 March 2004 at page five where the following is recorded:
“When asked about his day to day activities he replied ‘not a lot – I spent a lot of time in bed in the foetal position because that is the most comfortable for me’.
He drives a car but he said that his wife does the shopping and does all of the housework.”
Dealing with fitness for work Dr Silver said at page 11 that Mr Mills was:
“…unfit for activities requiring repeated bending, twisting and heavy lifting although he could work in a semi sedentary activity where he can sit and stand from time to time during the working day and which does not involve repeated bending, twisting or heavy lifting.”
Dr Leitl noted that Mr Mills believed he could work as a forklift driver. The doctor thought that such a job “may well be within his capacity, provided he could take frequent breaks to alter his posture and provided no additional lifting or bending was required” (report 21 October 2003, page five).
The question of total incapacity was considered by the Court of Appeal in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213 where Justice Mahony said:
“In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such.
It is concerned with the capacity to do work of a particular kind or kinds in the context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is highly or partially incapacitated and to what extent, the Court will not ordinarily be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not as it were spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’, having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which would permit him to do work in the relevant labour market.”
Having regard to the above authority and to the facts in the present case, it is my opinion that the Arbitrator made no error of fact, law or discretion when she found that the Respondent Worker was totally unfit for work.
OTHER MATTERS
The Arbitrator awarded compensation at the Respondent Worker’s current weekly wage rate for 26 weeks from 18 June 2003 until 17 December 2003 when he had already been paid for two weeks of compensation under section 36 in September 2000. That is an error which requires correction on review so that the correct period of compensation under section 36 is from 18 June 2003 until 3 December 2003 (24 weeks) with the award under section 37 commencing on 4 December 2003 to date and continuing.
On all other issues the Arbitrator’s findings are confirmed.
DECISION
Paragraphs one and two of the Arbitrator’s decision dated 26 April 2006 are revoked and the following orders made in there place:
1.That the Respondent pay the Applicant weekly compensation at the rate of $547.20 per week from 18 June 2003 to 3 December 2003 under section 36 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants from 4 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987.
Paragraphs three, four and five of the Arbitrator’s decision dated 26 April 2006 are confirmed.
COSTS
The Appellant Employer has failed on every ground of appeal except for a technical error with respect to the first 26 weeks of compensation which could have been corrected under the slip rule. In these circumstances the appropriate order is that the Appellant Employer pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
22 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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