Macarthur Group Training Ltd v Tahere
[2019] NSWWCCPD 46
•2 September 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Macarthur Group Training Ltd v Tahere [2019] NSWWCCPD 46 | |
| APPELLANT: | Macarthur Group Training Ltd | |
| RESPONDENT: | Adam Tahere | |
| INSURER: | Employers Mutual NSW Ltd | |
| FILE NUMBER: | A1-5995/18 | |
| ARBITRATOR: | Mr P Sweeney | |
| DATE OF ARBITRATOR’S DECISION: | 26 February 2019 | |
| DATE OF APPEAL DECISION: | 2 September 2019 | |
| SUBJECT MATTER OF DECISION: | Aggravation of a disease; ss 4(a), 4(b)(ii) of the Workers Compensation Act 1987 –Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606, discussed and applied | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Gair Legal |
| Respondent: | Stacks Goudkamp | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 26 February 2019 is confirmed. | |
INTRODUCTION AND BACKGROUND
Mr Adam Tahere (the respondent) suffered injuries to his back on 4 March 2016 and 16 March 2017 in the course of his employment as an apprentice electrician with Macarthur Group Training Limited (the appellant). After each injury and time off work, he was certified as fit for his pre-injury duties. The respondent then suffered further back symptoms in January 2018 and July 2018 in the course of his employment with JR Electrical Services Pty Ltd (JR Electrical). Following the onset of severe symptoms in July 2018, the respondent did not return to work.
The respondent made a claim against the appellant for a recurrence of his back injury (the July 2018 symptoms), which was denied by the appellant on the basis that the respondent had returned to pre-injury duties after the first two injuries, and any incapacity arising thereafter was not its liability.
The respondent lodged an Application to Resolve a Dispute (ARD) with the Commission, nominating only the appellant as the employer, and pleading only the injuries in 2016 and 2017. He claimed weekly payments from 30 July 2018 and associated treatment expenses. The respondent did not make a claim against JR Electrical, or name it as a party in the proceedings before the Commission.
The appellant disputed the claim, alleging that the respondent had recovered from the effects of the injuries for which it was liable, and had been able to earn more than his 2017 pre-injury earnings. In any event, it said it had no liability because the injuries were disease injuries for the purposes of s 16 of the Workers Compensation Act 1987 (the 1987 Act), which made the last employer liable for the compensation entitlements.
The matter proceeded to arbitration, and the Arbitrator issued a Certificate of Determination, finding that the respondent’s incapacity from 30 July 2018 resulted from the injury on 16 March 2017.
ON THE PAPERS
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.”
Both parties are content to have the appeal determined ‘on the papers.’
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The respondent’s statement
The respondent provided a statement dated 1 November 2018.[1] He gave a brief history of his schooling and the commencement of his apprenticeship with the appellant.
[1] ARD, pp 16–19.
He described injuring his back in the course of his employment with the appellant on 4 March 2016. He said that he bent over to pick up a piece of reinforcement steel, which weighed approximately 25 kilograms. As he attempted to pick up the sheet, he began to experience sharp low back pain. He consulted his local general practitioner, Dr Kenneth Lee, who diagnosed a soft tissue injury to the low back. The respondent said that after a few days, he returned to normal, fulltime work with no ongoing symptoms.
The respondent stated that on 16 March 2017, when he bent down at work to pick up a ladder, he felt severe pain through his low back and a shooting sharp pain across his back and radiating into his right buttock. He was unable to continue at work and again consulted Dr Lee, who certified him as being unfit for work.
The respondent provided details of the medical treatment he received following the second injury, which included undergoing an MRI scan, and being referred to a neurosurgeon, Dr Simon McKechnie. Dr McKechnie referred him for physiotherapy, and he attended a physiotherapist and exercise physiologist, Mr Vuko Tomasevic.
The respondent said he underwent approximately 24 sessions of physiotherapy, which he found very beneficial. The respondent advised that the appellant declined further physiotherapy.
The respondent stated that he returned to work on selected duties in April 2017.
The respondent advised that he commenced work with JR Electrical in July 2017 in a similar capacity to the work he had been doing with the appellant. The respondent described how, in early 2018, he began to experience increasing low back pain. He explained that, following the accident on 16 March 2017, his back pain had settled but had never gone away, and then began to become increasingly troublesome.
The respondent said that he consulted Dr Lee on 2 February 2018 because of the recurrence of his low back symptoms. He said Dr Lee recommended physiotherapy, but the appellant declined to pay for it.
The respondent then described how, in July 2018, for about three or four days, he was laying conduits before pouring concrete over them. He said that this involved stooping, squatting and kneeling, with his back constantly flexed. This aggravated his back, and a few days after completing that job he bent down to do up his shoelaces and he felt severe pain his low back.
The respondent attended Dr Lee on 11 July 2018, and was certified as unfit for work. Dr Lee arranged a CT scan, which was undertaken on 12 July 2018, and referred the respondent to Dr McKechnie. The respondent saw Dr McKechnie on 20 August 2018, and underwent a second MRI scan.
The respondent described his ongoing difficulties and advised that he had not been able to return to work because of those difficulties.
Dr Lee
Dr Lee’s hand written clinical notes covering the period 18 May 2015 to 16 October 2018 were in evidence.[2] The first entry of relevance was made on 7 March 2016, and recorded persistent low back pain since 3 March 2016 following an injury at work. On examination, the respondent’s low back was tender with muscle spasm and limited movement. Dr Lee arranged a CT Scan, and prescribed panadeine forte and voltaren gel. On 14 March 2016, Dr Lee noted improvement in the low back symptoms, and certified the respondent as fit for suitable duties on 14 and 15 March 2016, and normal duties from 17 March 2016.[3]
[2] Application to Admit Late Documents (AALD) dated 21 January 2019, pp 2–14.
[3] AALD, p 8.
On 17 March 2017, Dr Lee recorded that the respondent had experienced a sudden onset of low back pain after lifting a ladder at work the day before. The doctor noted that the respondent was unable to finish work that day, and that the symptoms persisted. Dr Lee organised a CT scan. The respondent attended Dr Lee again on 20 March 2017, when he was referred for an MRI scan. On 28 March 2017, Dr Lee referred the respondent to Dr McKechnie.[4]
[4] AALD, pp 11–12.
The respondent attended Dr Lee on several occasions during April and May 2017 in relation to his back symptoms, during which time the respondent’s symptoms were improving and he was certified fit for suitable duties. The respondent was certified fit for pre-injury duties on 15 June 2017, but physiotherapy treatment was to continue.[5] The respondent attended again for review of back symptoms on 12 and 16 July 2017, and returned on 4 December 2017, 2 February 2018, 25 June 2018 and 11 July 2018 complaining of a recurrence of those symptoms. The doctor’s notes recorded further consultations in 2018 in respect of low back symptoms.[6]
[5] AALD, pp 10 and 7.
[6] AALD, pp 2–7.
On 3 August 2018, Dr Lee provided responses to questions raised by the appellant in respect of the respondent’s recurrence of low back symptoms.[7] Relevantly, Dr Lee referred to a history of low back pain since January 2018, which gradually worsened. He was of the opinion that the respondent’s recurrent low back symptoms were due to exacerbations of his previous injuries.
[7] ARD, pp 4–5.
Dr McKechnie
Dr McKechnie’s progress reports dated 27 April 2017, 20 August 2018 and 21 August 2018 were annexed to the ARD.[8] Further reports dated 26 April 2017, 26 May 2017 and 23 June 2017 were annexed to the AALD.[9] On 23 June 2017, Dr McKechnie wrote to Dr Lee, reporting that at a consultation on 19 June 2017, the respondent complained of minimal residual symptoms, and had performed one session of pre-injury duties without any significant increase of pain. Dr McKechnie encouraged continued core strengthening exercises in the long term and agreed that the respondent could return to permanent pre-injury duties.[10] On 20 August 2018, Dr McKechnie again wrote to Dr Lee, reporting a history that the respondent had returned to normal duties following the injury in 2017. Dr McKechnie recorded the history that towards the beginning of 2018, the respondent developed severe, recurrent and gradually worsening back pain, radiating to both legs, accompanied with paraesthesia in both legs when sitting for long periods. Dr McKechnie noted the respondent had been unable to work for the past month.[11] The balance of Dr McKechnie’s reports do not touch on the issues to be determined in this appeal, and as the Arbitrator observed, unfortunately Dr McKechnie has not provided an opinion on causation.
[8] ARD, pp 1–3.
[9] AALD, pp 15–17.
[10] AALD, p 16.
[11] ARD, p 2.
Mr Tomasevic
Reports from the respondent’s exercise physiologist/physiotherapist, Mr Tomasevic, were also in evidence, covering the period from 25 May 2017 to 15 November 2017.[12] On 13 July 2017, Mr Tomasevic reported that since the 2017 injury, the respondent had returned to full work duties and social soccer. He recorded that the respondent was pain free, but should continue with a back strengthening program.[13] On 12 September 2017, Mr Tomasevic recorded a flare up of the respondent’s low back symptoms, in the context of moving houses and being more active socially over the previous month, as well as undertaking prolonged jack-hammering duties at work, resulting in persistent back pain at the end of each day.[14] Mr Tomasevic reported on 15 November 2017 that the respondent was pain free.[15]
[12] AALD, p 23–30, Reply to Application to Resolve a Dispute (Reply), pp 4–14.
[13] Reply, pp 8–10.
[14] AALD, p 30.
[15] Reply, pp 11–14.
Dr Peter Endrey-Walder
The respondent’s legal representatives qualified Dr Peter Endrey-Walder, general surgeon, to provide a medico-legal opinion. Dr Endrey-Walder assessed the respondent on 28 September 2018 and provided a report of the same date.[16]
[16] ARD, pp 34–40.
Dr Endrey-Walder took a consistent history of the injuries on 4 March 2016 and 16 March 2017, the treatment regime that followed, and the respondent’s change of employment in July 2017. He noted that after the 2017 injury, ongoing physiotherapy was recommended but the appellant denied ongoing funding. Dr Endrey-Walder further noted Dr Lee’s response dated 3 August 2018 to the appellant’s questionnaire, where Dr Lee recorded that following the 2017 injury, the respondent’s condition significantly improved and he returned to normal duties, although the symptoms did not resolve completely.
Dr Endrey-Walder took a history that the respondent commenced having increasing lower back pain in early 2018, and again consulted Dr Lee on 2 February 2018. Further, the respondent reported increasing back pain over a period of three to four days in July 2018 while laying conduit over which concrete was to be poured. Dr Endrey-Walder noted that over that period, most of the time the respondent was working with his back flexed, in a stooped position and squatting or kneeling for hours at a time. Dr Endrey-Walder also took the history of the respondent bending to put on his shoes a few days later, and experiencing severe pain. Dr Endrey-Walder noted the respondent’s difficulties, and performed a physical examination.
Dr Endrey-Walder opined that the injury in March 2016 appeared to be a soft tissue injury, from which the respondent recovered quite promptly. Dr Endrey-Walder accepted the respondent’s assertion that he was thereafter pain free over the ensuing twelve months.
Dr Endrey-Walder described the injury in March 2017 as being a more substantial injury, which was superimposed on a mild degree of disc bulging and dehydration at the L3/4 to L4/5 levels. Dr Endrey-Walder noted that following a prolonged period of physiotherapy, the respondent returned to full duties, before changing employment, but that the symptoms never fully recovered.
Dr Endrey-Walder further noted that in January 2018, the low back became increasingly troublesome, and in July 2018, when the respondent was laying the conduit, his back pain was significantly impacted, causing him to cease work.
Dr Endrey-Walder formed the view that the injury in 2016 was minor, but the “main ‘culprit’ for [the respondent’s] ongoing back pain is a consequence of the injury on 16 March 2017.”[17] Dr Endrey-Walder described the July 2018 occurrence as an aggravation and exacerbation of the underlying disc degeneration in the lumbar spine.
[17] ARD, p 39.
Dr Frank Machart
Dr Frank Machart, orthopaedic surgeon, was qualified by the appellant’s legal representatives to provide an opinion in respect of the respondent’s injuries. He provided a report dated 30 January 2019, which was attached to correspondence of the same date from the appellant’s solicitors, and admitted into evidence by the Arbitrator.
Dr Machart recorded that the respondent suffered an injury to his back in March 2016 when he bent to pick up a piece of steel. He improved quickly, but the symptoms never completely resolved. Dr Machart noted the respondent thereafter experienced further intermittent bouts of low back pain, and pain in the legs with pins and needles and numbness, but continued to work.
Dr Machart recorded the further injury on 16 March 2017, when the respondent picked up the ladder and experienced more severe low back pain. Dr Machart noted the treatment provided and the period of incapacity, as well as the respondent’s change of employment in July 2017. Dr Machart recorded that the respondent managed reasonably well with his duties at JR Electrical, until about 16 July 2018, when he was performing the work laying conduits in a hunching position and suffered severe pain in the low back, radiating into the legs. Following this incident, he ceased work.
Dr Machart noted the respondent’s symptoms and ongoing treatment, and that the respondent had not returned to work. He examined the respondent and the radiological evidence, and briefly reviewed the report of Dr Endrey-Walder and Dr McKechnie’s report of 21 August 2018.
Dr Machart diagnosed what was described broadly as degenerative changes in the lumbar spine, with prognostic features of recurrent bouts of back pain associated with physical activity, such as the activities on 4 March 2016, 16 March 2017 and July 2018. He was of the opinion that the degenerative condition was aggravated by the incident on 4 March 2016, then more substantially by the injury on 16 March 2017, as well as the work he was performing in January 2018 and July 2018.
THE ARBITRATOR’S REASONS
The Arbitrator provided a summary of the respondent’s claim for compensation and the basis of the appellant’s denial of the claim. The Arbitrator referred to the respondent’s failure to join the last employer to these proceedings, which had been the subject of discussion during the conciliation phase. He gave extensive reasons as to why the subsequent employer ought to have been joined and why it was inadvisable to proceed without having done so.
The Arbitrator provided a summary of the respondent’s statement evidence and the contemporaneous medical evidence touching on causation and capacity for employment. That evidence comprised the clinical notes of the respondent’s treatment providers, Dr Lee, Dr McKechnie, and Mr Tomasevic.
The Arbitrator also provided a brief summary of the submissions made by both parties, noting that the submissions were sound recorded and the recording was available to him.
The Arbitrator noted that it was accepted between the parties that the first injury on 4 March 2016 was “unimportant in the aetiology of the [respondent’s] low back condition”.[18] The Arbitrator further noted that the evidence established that, following the injury on 16 March 2017, the respondent became fit for his pre-injury duties in late June 2017 and returned to work on the advice of Dr McKechnie. The Arbitrator observed that the respondent’s evidence was that he experienced continuing back pain, but that evidence was not entirely consistent with the clinical records.
[18] Tahere v Macarthur Group Training [2019] NSWWCC 84 (reasons), [31].
The Arbitrator referred to Mr Tomasevic’s reports dated 13 July 2017 and 15 November 2017, which recorded that the respondent was experiencing no back pain, and was performing pre-injury duties and participating in weekend sport. The Arbitrator remarked that the absence of complaints does not necessarily mean that the effects of an injury have ceased, but the continuation of symptoms is good evidence that the effects of the injury have persisted. He observed that it was important that symptoms occurred relatively contemporaneously to the claimed injury.
The Arbitrator referred generally to the evidence, which he said established that the respondent experienced flare ups of back pain in August 2017, September 2017 and a further flare up from 2 February 2018, the last of which he considered was likely to be more permanent. The Arbitrator said that this suggested that the periods during which the respondent was free of pain were relatively short lived, but also suggested that the periods of pain may have had a connection with the nature of the work he was performing and his other physical activities.
The Arbitrator said that it was regrettable that Dr McKechnie had not provided an opinion on causation. He noted that Dr Lee had replied to the insurer’s request for information on 3 August 2018, and described the respondent’s condition as recurring symptoms due to exacerbations of his prior injuries, and that the respondent suffered from intermittent low back pain. The Arbitrator further noted that Dr Lee was of the view that if the respondent returned to his usual duties, his back pain would increase, and that Dr Lee diagnosed disc bulges with neural canal narrowing.
The Arbitrator noted the histories taken by both Dr Endrey-Walder and Dr Machart, their diagnoses, opinions on causation and capacity for work. The Arbitrator quoted the pertinent parts of both doctors’ reports.
The Arbitrator formed the view that Dr Machart’s opinion was based on a history which was reasonably consistent with the facts which he accepted. That is, that on returning to work with the appellant, the respondent coped reasonably well, and the respondent experienced increasing low back pain over three days in July 2018.
The Arbitrator considered that the history that the respondent coped reasonably well was consistent with the fact that the respondent had experienced intermittent back pain throughout late 2017 and early 2018. The Arbitrator further considered that it could be inferred, from the doctor’s opinion that the injury on 4 March 2016 did not cause the two level degenerative change, that Dr Machart’s view was that the injury on 16 March 2017 and the heavy work materially contributed to the respondent’s condition and the restrictions on his work capacity.
The Arbitrator observed that Dr Machart’s reasoning did not conflict with the opinions of Dr Lee or Dr Endrey-Walder that the injury in March 2017 was a cause for the incapacity arising in July 2018. The Arbitrator noted that Dr Machart also considered that the heavy work with JR Electrical, particularly in July 2018, was another cause, and that Dr Endrey-Walder referred to it as a significant aggravation. The Arbitrator expressed the view that some contribution from the work with JR Electrical was an “inexorable conclusion.”[19] The Arbitrator said however that periods of incapacity and the need for treatment can have multiple causes and may relate to more than one injury, referring to Cluff v Dorahy Bros (Wholesale) Pty Ltd[20] and Calman v Commissioner of Police.[21] The Arbitrator identified the principle laid down by the High Court in Calman, that the relevant inquiry is whether the incapacity resulted from a cause that arose in the course of the worker’s employment. It is immaterial that the injury also arose from another cause, whether in the course of employment or otherwise.
[19] Reasons, [41].
[20] [1979] 2 NSWLR 435 (Cluff).
[21] [1999] HCA 60; 167 ALR 91 (Calman).
The Arbitrator referred to the appellant’s submission that ss 15 and 16 of the 1987 Act applied, it was not the last employer, and liability rested with JR Electrical. The Arbitrator reasoned that the injury on 16 March 2017 was not an injury which consists in the aggravation or acceleration of a disease process for the purposes of the 1987 Act, that the injury was either an injury simpliciter or an injury that aggravated a disease, and that ss 15 and 16 had no part to play. The Arbitrator referred to Rail Services Australia v Dimovski[22] as authority for that proposition, which he said rendered the appellant’s position unarguable.
[22] [2004] NSWCA 267; 1 DDCR 648 (Dimovski).
The Arbitrator concluded that on the basis of the medical evidence, the respondent’s incapacity after 30 July 2017 [sic] resulted from the injury on 16 March 2017.
The Arbitrator then discussed the evidence in respect of the respondent’s capacity for work and concluded that the respondent had no capacity for work from 30 July 2018 to 30 January 2019 and from 31 January 2019, he was able to earn $380 per week in suitable employment as defined by s 32A of the 1987 Act. There is no challenge to the Arbitrator’s conclusions and calculations in relation to capacity, other than that the appellant maintains that it bears no responsibility for those payments.
The Certificate of Determination issued on 26 February 2019 records:
“The Commission determines:
1. The applicant suffered injury arising out of and in the course of his employment on 16 March 2017.
2. As a result of that injury the applicant was incapacitated for work from 30 July 2018 to date.
3. The applicant had no current earning capacity from 30 July 2018 to 30 January 2019 and thereafter was capable of suitable employment.
4. At all material times, the applicant’s PIAWE was as itemised in the respondent’s wages schedule.
5. Award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 at the rate of:
(a)$654.06 per week from 30 July 2018 to 17 September 2018;
(b)$550.78 per week from 18 September 2018 to 30 January 2019 on the basis of total incapacity, and
(c)$170.78 per week from 31 January 2019 pursuant to section 37 to date and continuing until such payments are reduced or terminated in accordance with the provisions of the Workers Compensation Act 1987.
6. Liberty to apply in respect of the periods and calculations above.
7. Respondent to pay the applicant’s medical expenses pursuant to section 60.”
GROUNDS OF APPEAL
The appellant brings four grounds of appeal, expressed as follows:
(a) Ground one: The Arbitrator erred in failing to find that the respondent suffered from a disease of his lumbar spine, namely disc degeneration;
(b) Ground two: The Arbitrator erred in failing to find that injury on 16 March 2017 aggravated and exacerbated the disease process in the respondent’s lumbar spine;
(c) Ground three: The Arbitrator erred in failing to find that the respondent’s employment with JR Electrical was a substantial contributing factor to the aggravation and exacerbation of the underlying, established degenerative condition in the respondent’s lumbar spine, and
(d) Ground four: The Arbitrator erred in failing to apply the provisions of s 16(1)(b) of the 1987 Act.
LEGISLATION
Section 4 of the 1987 Act relevantly defines injury as follows:
“4 Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
...”
Section 16 of the 1987 Act provides as follows:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Section 289 of the 1998 Act relevantly provides:
“289 Restrictions as to when dispute can be referred to Commission
(1) A dispute about a claim for weekly payments (other than a dispute based on a work capacity decision) cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
…
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
SUBMISSIONS
Both parties have combined grounds one and two of the appeal in their submissions, rather than separately addressing both grounds of appeal. To avoid confusion, the submissions will proceed on the same basis.
Grounds one and two
The appellant’s submissions
The appellant points out that following the injury in 2017, the respondent attended Dr Lee, who arranged an MRI scan. The appellant submits that Dr Machart, who is qualified to provide an opinion about the MRI, was of the view that the MRI scan disclosed two level disc degeneration in the respondent’s lumbar spine at L3/4 and L4/5. The appellant further submits that Dr Machart’s opinion was that the injuries in [March] 2016 and March 2017, as well as the work with JR Electrical in January and July 2018 were all aggravations of a pre-existing condition.
The appellant says that Dr Endrey-Walder, who is also qualified to provide an opinion, was of the view that the MRI showed disc dehydration, with broad based disc bulges at L3/4 and L4/5 level. The appellant refers to the opinion of Dr Endrey-Walder, who concluded that the onset of symptoms in July 2018 constituted an aggravation and exacerbation of the underlying, established, disc degenerative condition in the spine.
The appellant maintains that both qualified experts were in agreement that the respondent had an established degenerative disease in his lumbar spine, and that Dr McKechnie also said that the MRI demonstrated disc desiccation and broad based disc protrusions.
The appellant contends that the weight of the evidence established that the respondent suffered from a disease condition in his lumbar spine and the Arbitrator erred in not making that finding.
The appellant further submits that the Arbitrator erred in failing to find that the injury on 16 March 2017 aggravated and exacerbated the underlying established disc degenerative condition in the respondent’s lumbar spine, in accordance with the opinion of Dr Machart.
The respondent’s submissions
The respondent disagrees with Dr Machart’s summary of the MRI scan and says that the scan speaks for itself. He submits that Dr Endrey-Walder correctly quoted the relevant MRI scan. The respondent asserts that the appellant misstated Dr Endrey-Walder’s opinion, who clearly considered that the injury in March 2017 was a significant cause of the respondent’s symptoms and condition.
The respondent does not dispute that Dr Machart’s opinion was that the incidents in 2016 and 2017, as well as the activity of laying conduit were all aggravations of the respondent’s pre-existing condition. The respondent further does not dispute that both Dr Machart and Dr Endrey-Walder agreed that the respondent suffered from an established degenerative disease in the lumbar spine. The respondent submits that the significance of those opinions is qualified by the respondent’s evidence, and the medical evidence, that the respondent experienced ongoing pain after the incident in March 2017.
The respondent disputes that the weight of the evidence suggests that a disease process was established. The respondent submits that the Arbitrator dealt with the appellant’s submissions in respect of the disease provisions, and the facts identified by the appellant in its submissions do not in any way negate the Arbitrator’s findings, or identify error on the Arbitrator’s part.
Appellant’s submissions in reply
The appellant says it agrees that the MRI scan speaks for itself, but the appellant relies on Dr Machart’s opinion of what was disclosed on the scan.
The appellant disputes that it misstated Dr Endrey-Walder’s opinion, and says that its submission about Dr Endrey-Walder’s opinion was in respect of a different aspect of the case, that is the July 2018 aggravation.
The appellant maintains that the respondent suffers from a disease condition in the lumbar spine and the Arbitrator erred in not making that finding. Further, the Arbitrator gave no reasons as to why the injury was “patently” not an injury which consists in the aggravation etc of a disease.
Ground three
The appellant’s submissions
The appellant submits that, although the Arbitrator noted that the evidence strongly suggested that the respondent’s employment with JR Electrical materially contributed to the respondent’s incapacity after 30 July 2018, he did not make any finding that such employment was a substantial contributing factor to the aggravation and exacerbation of the disease process in the respondent’s lumbar spine.
The appellant refers to the evidence of Mr Tomasevic, who reported on 13 July 2017 that the respondent had returned to work on full duties, was playing soccer and was, at that time, pain free. The appellant further refers to Mr Tomasevic’s note dated 12 September 2017 that the respondent suffered a flare up of his low back condition following jack hammering at work, being more active socially, and after moving houses. The respondent points out that the Arbitrator noted that evidence and remarked that the respondent’s pain may have been influenced by his employment with JR Electrical.
The appellant notes the history taken by Dr Endrey-Walder of the work the respondent was doing in July 2018, which required working with his back flexed, and stooping and squatting for prolonged periods. The appellant contends that Dr Endrey-Walder’s opinion was consistent with the respondent’s employment being a substantial contributing factor to the aggravation, acceleration or exacerbation of the respondent’s back condition.
The appellant further notes that Dr Lee advised the appellant on 3 August 2018 that the respondent was suffering from recurrent low back pain since January 2018 due to exacerbation of previous injuries, and the symptoms were gradually worsening. Dr Lee also noted in February 2018 that the respondent’s low back pain was increasing. The appellant submits that this evidence is also consistent with the respondent’s employment being a substantial contributing factor to the aggravation and exacerbation of the disease process in the respondent’s lumbar spine, as was the opinion of Dr Machart.
The appellant contends that the respondent’s back condition was worse in July 2018 than it was in July 2017.
The appellant maintains that the weight of the evidence supports a finding that the respondent’s employment with JR Electrical was a substantial contributing factor to the aggravation of the disease process in the respondent’s lumbar spine, and the Arbitrator erred in failing to make that finding.
The respondent’s submissions
The respondent submits that the Arbitrator’s observation that the respondent’s work with JR Electrical materially contributed to the respondent’s incapacity is irrelevant, given the Arbitrator’s findings that:
(a) an incapacity can have multiple causes;
(b) the relevant inquiry is whether the incapacity arose in the course of the respondent’s employment;
(c) it is immaterial that it also resulted from a subsequent injury, and
(d) the injury on 16 March 2017 was patently not an injury that consists in the aggravation or acceleration of a disease for the purposes of the 1987 Act and was not caught by ss 15 or 16 of the 1987 Act.
The respondent contends that the Arbitrator dealt with the evidence of Mr Tomasevic. He says that the Arbitrator considered that evidence, as well as the evidence of Dr Lee, Dr McKechnie, and Dr Endrey-Walder, and found there were ongoing symptoms after the March 2017 injury.
The respondent asserts that the appellant’s submissions that Dr Endrey-Walder observed that the respondent’s back pain increased in July 2018 when laying conduit does not assist the appellant. This is so because Dr Endrey-Walder considered that the injury on 16 March 2017 was a major cause of the of the symptoms the respondent was experiencing, and confirms that the doctor considered all of the factors that contributed to the respondent’s pain.
The respondent observes that the Arbitrator quoted from Dr Lee’s opinion that the respondent had exacerbated his previous injuries, and asserts that Dr Lee’s opinion confirms that the respondent’s symptoms were as a result of the prior injury.
The respondent further observes that Dr Machart’s opinion was that all three injuries were causative, that the evidence does not disclose that the disease process was a substantial contributing factor, and given the Arbitrator’s findings summarised at [50]–[51] above, was irrelevant in any event.
The respondent submits that the fact that the respondent’s pain was worse in July 2018 than it was in July 2017 is also irrelevant because the Arbitrator’s finding was that the respondent suffered a frank injury which caused the incapacity. The respondent concludes that none of the submissions advanced by the appellant challenge the Arbitrator’s finding in that regard.
The appellant’s submissions in reply
The appellant refers again to the Arbitrator’s observation that the work in July 2018 suggested that there was another cause of the incapacity other than the injury in March 2017 and submits that if that were the case, then the work done in July 2018 was equally the cause of the respondent’s “injury,” and was in fact the main contributing factor to the aggravation or exacerbation of the underlying disease. The appellant points to Dr Lee’s evidence, that identified the worsening of the respondent’s lumbar condition from January 2018, which was after the respondent commenced with JR Electrical.
The appellant further submits that it is not the underlying disease process itself that has to be the substantial contributing factor, it is the respondent’s employment duties, citing State Transit Authority of New South Wales v El-Achi.[23]
[23] [2015] NSWWCCPD 71.
The appellant concludes that the medical opinions are all consistent with both the incidents in March 2017 and July 2018 being substantial contributing factors to the aggravation of the degenerative condition.
Ground four
The appellant’s submissions
The appellant refers to s 16(1)(b) of the 1987 Act, and asserts that because the injury consists in the aggravation of the degenerative disease in the lumbar spine, the appellant is not liable to pay the compensation because it was not the employer who last employed the respondent in employment that was a substantial contributing factor to the aggravation of the respondent’s lumbar spine condition.
The appellant points to the Arbitrator’s apparent acceptance that the work performed by the respondent with JR Electrical between July 2017 and July 2018 was heavy work, particularly in July 2018. The appellant says, therefore, the Arbitrator erred in failing to apply s 16(1)(b) of the 1987 Act to the facts of this case, and in failing to find that the appellant was not liable because it was not the last employer.
The respondent’s submissions
The respondent submits that the test in s 16(1) of the 1987 Act is factual and does not override a finding that can be made that either incapacity was caused by a frank injury or a frank injury and a disease process. The respondent says that the Arbitrator dealt with the appellant’s argument in relation to s 16 of the 1987 Act, and the appellant has not identified any error in the Arbitrator’s finding.
The respondent contends that a determination of whether an injury consists in the aggravation of a disease is a factual determination, and even if the Arbitrator found against such a finding (which he did not do and did not need to do), no error arises in failing to make such a finding.
The respondent further contends that the Arbitrator’s acceptance that the work with JR Electrical was heavy is irrelevant, given the Arbitrator’s findings.
The appellant’s submissions in reply
The appellant maintains that the Arbitrator erred in failing to apply the provisions of s 16 of the 1987 Act, and by failing to find the appellant was not the last employer and therefore was not liable to pay any compensation to the respondent.
DISCUSSION
Grounds two and four
It is convenient to firstly deal with grounds two and four of the appeal.
The appellant’s second and fourth grounds of appeal assert that the Arbitrator erred in failing to find that the injury on 16 March 2017 aggravated the degenerative condition, and in failing to find that liability should not have rested upon it at all because of the operation of s 16(1)(b) of the 1987 Act.
In his consideration of the appellant’s argument that it bore no liability to pay compensation because of the operation of ss 15 and 16 of the 1987 Act, the Arbitrator referred to the decision of the Court of Appeal in Dimovski. On the basis of that authority, the Arbitrator concluded that the injury suffered by the respondent was not an injury that “consists in” the aggravation of a disease.
To draw benefit from the provisions of ss 15 and 16, the appellant must establish that the injury “consists in” the aggravation, as the term is expressed within s 16(1). That phrase was judicially considered by Hodgson JA in Dimovski. His Honour made the following observations:
“Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease.[24]
…
In the present case, compensation is payable by Rail Services for incapacity resulting from two injuries, namely a nature and conditions injury and a frank injury on 28 May 1998. The former could possibly be considered an injury under paragraph (b)(ii) and falling within s.16(1); but the latter could not.”[25]
[24] Dimovski, [68].
[25] Dimovski, [70].
In Dimovski, the Court of Appeal was required to determine which of two other authorities from that Court was correct. The competing decisions were Colliar v Bulley[26] and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd.[27] It is not necessary to consider the facts in Colliar, or the conclusions, as the bench in Dimovski concluded it was not the correct rationale. In Mecha, the Court of Appeal considered the nature of an injury in circumstances where the evidence suggested there had been an aggravation of degenerative changes. In that case the worker was injured in a fall on 11 February 1992 (a ‘frank injury’). As in this case, the nature of the injury was the aggravation of pre-existing degenerative changes in his back (aggravation of a disease). The worker suffered a further injury to his back with a second employer as a result of the nature and conditions of his employment with that employer (a ‘nature and conditions’ injury), which further aggravated his degenerative condition. The trial judge apportioned liability between both employers under s 22 of the 1987 Act.
[26] [2000] NSWCA 1; 19 NSWCCR 302 (Colliar).
[27] [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606 (Mecha).
On appeal it was held that while the injury on 11 February 1992 could have satisfied either definition of ‘injury’ in s 4 (either a “frank injury” or “injury in the nature of an aggravation of a disease”) the words “injury consists in the aggravation ... of a disease” in s 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation. In other words, the “frank injury” and the “nature and conditions” injury were separate injuries each giving rise to compensation entitlements. Justice Powell discussed the legislative history of s 4 of the 1987 Act and the High Court decision in Zickar v MGH Plastic Industries Pty Ltd[28] and referring to Zickar, relevantly said that:
“The effect of the decision of the majority is, thus, first, that, if there can be identified an incident which involves--either by being itself the change, or by bringing about the change--a physical change in the worker, then--even though that change may be no more than the culmination of a progressive disease, and not the product of some external force--that damage is to be regarded as an ‘injury’ within the meaning of par (a) of the definition of ‘injury’ in s 4 of the Act
...
In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker’s lumbo-sacral spine had begun to degenerate. ... This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker’s evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period ...
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar v MGH Plastic Industries Pty Ltd would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker’s pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”[29]
[28] [1996] HCA 31; 187 CLR 310 (Zickar).
[29] Mecha, [39]–[42].
The above rationale was unanimously agreed to be correct by Handley JA, Hodgson JA and Young CJ in Eq in Dimovski.
Applying the above reasoning (including the reasons of Hodgson JA in Dimovski, relied on by the Arbitrator), the injury suffered by the respondent on 16 March 2017 should properly be considered a personal injury pursuant to s 4(a) of the 1987 Act. The event satisfies the definition of injury in s 4(a) and the injury did not “consist in” the aggravation, acceleration or exacerbation of the disease.
The Arbitrator determined that the injury on 16 March 2017 was a frank injury (in other words, a s 4(a) injury), rather than an injury that “consists in” an aggravation of a disease (a s 4(b) injury), and supported that finding by reference to Dimovski. Applying the above authorities, that finding was clearly correct. Again, applying the above authorities, an injury within the meaning of s 4(a) of the 1987 Act does not attract the provisions of ss 15 and 16 of the 1987 Act, and liability cannot rest entirely with the last employer.
It follows that ground two of the appeal, which alleged that the Arbitrator was in error by failing to find that the injury on 16 March 2017 aggravated the disease process in the respondent’s lumbar spine, fails. It further follows that ground four of the appeal, which alleged error on the part of the Arbitrator by failing to apply s 16 of the 1987 Act, also fails. Section 16 has no part to play in respect of two injuries where one injury is an injury pursuant to s 4(a) of the 1987 Act, even if the later injury is an injury that may satisfy the second limb of s 4, that is s 4(b)(ii).
In its reply to the respondent’s submissions on appeal, the appellant complained that the Arbitrator did not give reasons for arriving at his conclusion that the injury on 16 March 2017 was an injury pursuant to s 4(a).[30] This suggestion was not raised either by way of a ground of appeal or in its substantive submissions, and is not in response to the respondent’s submissions. In any event, the Arbitrator referred to and applied Dimovski as support for his conclusion.[31] Dimovski is binding authority, directly on point and factually consistent with the present case. Its application to this case speaks for itself, and provided a proper reasoning basis for the Arbitrator’s conclusion. The appellant’s complaint is rejected.
[30] Appellant’s submissions in reply, [1(c)].
[31] Reasons, [43].
Ground one
The first ground of appeal asserts error on the part of the Arbitrator by failing to find that the respondent suffered from a disease of his lumbar spine. The case put forward by the appellant at arbitration was that the injury on 16 March 2017 was an aggravation of a disease, and because it was not the last employer who aggravated the disease, it was not liable for any compensation entitlements.[32]
[32] Transcript of the proceedings (T), Tahere v Macarthur Group Training Ltd, (5995/18, 4 February 2019), T 7.25–29.
For the reasons set out above, that case was fundamentally flawed. The Arbitrator determined that the injury on 16 March 2017 was an injury within the meaning of s 4(a) of the 1987 Act, that is a frank injury, and that finding accorded with binding authority and was correct. In the circumstances of this case, whether that frank injury caused fresh pathology or aggravated pre-existing pathology is immaterial to such a determination. The Arbitrator was not required to make an explicit finding that the injury suffered was an aggravation of a disease, when, for the reasons set out above, the injury did not “consist in” an aggravation of a disease process. The medical opinions clearly establish that the respondent suffered from degenerative disc disease. However, the injury did not constitute an injury pursuant to s 4(b) of the 1987 Act, so the existing pathology is irrelevant to a consideration of whether liability for the injury rests with the appellant. The appellant has not identified error on the part of the Arbitrator of the kind required and ground one of the appeal also fails.
Ground three
This ground of the appeal asserts that the Arbitrator erred in failing to find that the respondent’s employment with JR Electrical was a substantial contributing factor to the aggravation and exacerbation of the underlying, established, degenerative condition in the respondent’s lumbar spine. The appellant points to numerous references in the Arbitrator’s reasons in respect of the evidence that the respondent’s employment with JR Electrical was heavy work, and where the Arbitrator appeared to accept that the respondent may have aggravated the condition in his lumbar spine during the course of that work.
The appellant’s case is that the Arbitrator ought to have made a finding fixing liability on JR Electrical. JR Electrical was not a party to these proceedings. There is no evidence that the respondent has ever made a claim for compensation against that employer, or that JR Electrical has ever denied such a claim.
Section 288 of the 1998 Act provides that a party to a dispute may refer a dispute about a claim to the Commission for determination. Section 289 restricts the matters that may be referred to the Commission. A matter cannot be referred to the Commission unless the person on whom the claim is made disputes liability for the claim (either in part or full) or fails to determine the claim. Section 289(5) provides that the Commission may not hear or otherwise deal with a dispute, unless it can be referred under this section.
In the absence of a dispute raised by JR Electrical in relation to a claim made on it, or a failure by JR Electrical to determine such a claim, the Arbitrator, whose powers are vested in statute, cannot make any determination of the kind requested by the appellant. Additionally, JR Electrical is not a party to these proceedings. The concept that a decision maker can make a finding that impacts the rights and liabilities of an entity that is not a party to the decision and has not had the opportunity to be heard is an extraordinary notion. Clearly the Arbitrator has not erred by failing to make the finding it seeks, and ground three of the appeal fails.
I note the appellant makes no criticism of the Arbitrator’s reliance on Cluff and Calman in determining the question of whether the incapacity was caused by the injury on 16 March 2016 in circumstances where there were potentially multiple causes for the incapacity. Those well established authorities were correctly applied by the Arbitrator and supported his finding that the respondent was entitled to weekly payments of compensation and treatment expenses as a result of the injury on 16 March 2017.
Further matters
The appellant may very well be aggrieved at the outcome of this case. The manner in which the respondent’s case was presented, that is, by electing not to include JR Electrical in these proceedings, was most unsatisfactory and has no doubt resulted in detriment to the respondent as well as the appellant. The Arbitrator clearly identified to the respondent that there were risks associated with proceeding in such a fashion.
It should be noted, however, that as the injury on 16 March 2017 was an injury within the definition of s 4(a) of the 1987 Act, and it may be arguable that the work performed with JR Electrical constituted a further injury (either a s 4(a) injury or an injury pursuant to s 4(b)(ii) of the 1987 Act), the appellant might elect to bring proceedings against JR Electrical claiming apportionment of the liability to pay the compensation pursuant to s 22 of the 1987 Act. That is a matter that could have been dealt with expeditiously by the Arbitrator in the same proceedings, had the respondent proceeded in an acceptable manner against both parties. The substantial waste of the Commission’s resources is unacceptable.
Conclusion
The appellant’s appeal against the decision of the Arbitrator is unsuccessful and the Arbitrator’s Certificate of Determination is confirmed.
DECISION
The Certificate of Determination dated 26 February 2019 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
2 September 2019
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