Mannie v Bauer Media Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47
APPELLANT:	Alvin Mannie
RESPONDENT:	Bauer Media Pty Ltd
INSURER:	AAI Ltd t/as GIO Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-787/16
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:	30 May 2016
DATE OF APPEAL DECISION:	22 September 2016
SUBJECT MATTER OF DECISION:	Aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; alleged error of fact; adequacy of reasons; onus of proof
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	P K Simpson & Co
Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The respondent employer’s name is amended to “Bauer Media Pty Ltd”. 2. The Arbitrator’s determination of 30 May 2016 is confirmed.

INTRODUCTION

The appeal challenges an Arbitrator’s finding that the worker had not discharged his onus of proof that his employment aggravated his disease (s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)). In particular, the appeal challenges the Arbitrator’s finding that the worker’s employment did not aggravate his cervical myelopathy disease.

BACKGROUND

The appellant worker, Mr Mannie, was employed by the respondent employer, Bauer Media Pty Ltd as a graphic artist, until he was made redundant on 26 February 2013. In the course of his employment he was required to use a graphics tablet to fine detail and retouch photographs.
In November 2007, Mr Mannie allegedly reported injury to his right hand and neck from repetitive retouching of images. He underwent treatment at the expense of the respondent from August 2007 to September 2008.
On 8 August 2013, Mr Mannie underwent anterior cervical decompression and fusion at C4/5, C5/6 and C6/7 at the hand of Dr Raoul Pope, a specialist neurosurgeon and spine surgeon.
On 5 December 2013, Mr Mannie’s legal representatives made a claim for medical expenses for treatment and rehabilitation pursuant to s 60 of the 1987 Act in respect of the above injury.
On 24 January 2014, GIO Ltd (GIO), issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for injuries allegedly sustained on 8 August 2013 as a result of Mr Mannie’s employment with the respondent. It disputed that GIO was the insurer on risk at the time of the alleged injury. It also disputed occurrence of injury and that employment was a substantial contributing factor to any injury. It further denied that any injury was aggravated, accelerated, exacerbated or deteriorated by employment.
On 5 August 2015, Mr Mannie’s solicitors issued a letter of claim on the respondent seeking lump sum compensation in respect of 25 per cent whole person impairment, comprising of 24 per cent for the cervical spine and one per cent for scarring.
On 22 December 2015, AAI Ltd t/as GIO Ltd, the respondent’s insurer, issued a further s 74 notice. It denied any injury arising out of or during the course of employment. It also denied, in the alternative, that any injury said to be a disease of gradual process was aggravated, accelerated, exacerbated or had deteriorated as a result of employment. It relied upon the evidence of Dr Pope and Dr Frank Machart, orthopaedic surgeon, on causation, injury and permanent impairment.
On 16 February 2016, the appellant lodged with the Commission an Application to Resolve a Dispute (the Application). He claimed lump sum compensation in respect of injury to the “right arm, right fingers” due to the “nature and conditions of his employment”. The date of injury is recorded as from August 2007 to February 2013.
On 9 March 2016, the respondent lodged with the Commission a Reply to the Application, disputing liability for the reasons identified in the s 74 notices.
On 22 March 2016, the matter was listed for telephone conference. During the telephone conference the Application was amended, without objection, to record the allegation of “injury to the cervical spine and aggravation of disease process”. The matter then proceeded on the basis of a s 4(b)(ii) aggravation of disease case.
On 21 April 2016, conciliation/arbitration proceedings were held before a Commission Arbitrator. Following these proceedings the Arbitrator reserved her decision.
On 30 May 2016, the Arbitrator issued a Certificate of Determination and Statement of Reasons. The Certificate of Determination is in the following terms:
“The Commission determines:

1. Award for the respondent in relation to the claimed injury to the cervical spine.”

The appellant appeals the Arbitrator’s determination.

PRELIMINARY MATTERS

Description of the respondent

The respondent employer was wrongly sued as “Bauer Media Group”. The respondent made an application to amend the pleadings to correct the record to describe the respondent as
“Bauer Media Pty Ltd”. The appellant’s legal representatives do not oppose the application. I therefore order that the record be corrected to describe the respondent as “Bauer Media Pty Ltd”.

Threshold

There is no issue that the threshold requirements of s 352(3) and (4) of the 1998 Act are satisfied. Therefore there is no impediment to the appeal proceeding.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions 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.

LAY EVIDENCE

Mr Mannie

In evidence are three statements of Mr Mannie, dated 11 February 2016, 16 March 2016, and 24 March 2016 respectively. In the first statement Mr Mannie states that on or about August 2007 to February 2013 he “suffered injury to right arm, right fingers as a result of the nature and conditions of my employment … with the Respondent”. He records that as a result of his injury he has suffered “actual pain, distress and anxiety and a loss” in his earning capacity. He also states that he ceased work on or about 26 February 2012. It is likely that the reference to 2012 is an error and the correct date of termination is 26 February 2013.
In the second statement, Mr Mannie states that he worked as a graphic artist. In the early years the work was “done in a very, very manual manner” but in 1993 the MAC computer had been introduced with a “graphic portal and the early graphic retouching was done with that”. He records:
“My work consisted of fine detail and retouching the photograph which uses the graphics tablets which is on the desk in front of me and a pen. In my left hand, I have to access various controls to the computer keyboard to undertake the manipulation of the digital photograph to retouch it and alter it. I am therefore looking ahead of the screen whilst using the pen which is down in front of me and the left hand on the keyboard. I usually lean on the right forearm and elbow region while undertaking this activity.”
Mr Mannie further states that as a result of the nature and conditions of his employment he “suffered ongoing right arm and right finger pain from approximately 2007 to date”. He adds that he “developed increasing symptoms involving the elbow, the right wrist, hand, the right shoulder and the neck” and that he eventually reported the matter to his employer by “about November 2007”.
From 25 August 2007 to September 2008, he underwent physiotherapy treatment at the expense of the respondent employer. However, there was “no alteration to [his] work practices” despite the fact that he continued to have ongoing problems with his arms and hands. He claims that he did not raise his ongoing problems with his employer until February 2013 when he was made “redundant because [he] did not want to jeopardise [his] employment given that the employer was downsizing”.
Mr Mannie states that after he was made redundant he “continued developing increasing neck pain and was deteriorating”. He notes that on 8 August 2013 he underwent an anterior cervical decompression and fusion at C4/5, C5/6 and C6/7.
In the third statement, Mr Mannie refers to his previous statement and states that in the last year that he worked for the respondent he was “actually doing more work … because of the redundancies and the relaying of people in the office”. He states that his condition was “in fact getting worse in [his] neck and right arm but [he] made no complaints in [his] last year with the Respondent because [he] did not want to lose [his] job as [he] had a mortgage and a young family to look after”.

MEDICAL EVIDENCE

Dr Gergis

In evidence are the clinical notes of Dr Gergis, Mr Mannie’s general practitioner. In the clinical notes dated 23 October 2007, Dr Gergis records “pt came in for renewal W/C still feel pain in right neck”. A history of “intermittent pain in neck and shoulder, still see physio” is noted in Dr Gergis’ clinical notes of 10 November 2007, and on 2 January 2008, Dr Gergis records “W/C: mild tenderness in right side of the neck, muscles”.
On 27 May 2008, Dr Gergis records “[l]ess pain around neck” and on examination “no tenderness around neck”. However on 28 June 2008 and 1 August 2008, Dr Gergis records on examination mild tenderness in neck muscle.
There is no further recorded report of neck symptoms until 4 July 2013, when Mr Mannie attends on Dr Gergis. In his clinical notes for that consultation Dr Gergis records “long counselling about neck pain and letter from specialist discussion about cervical myelopathy and discectomy”.

Dr Sharpe

Dr Gergis referred Mr Mannie to Dr David Sharpe, neurologist. In a letter to Dr Gergis, dated 7 June 2013, Dr Sharpe commented on his assessment of Mr Mannie. He records the following history:
“He gives a history of having neck problems possibly work related extending back more than 5 years. Back then he recalls having physiotherapy twice a week with some improvement and then settling, but then intermittent symptoms in the neck following that. Currently and while he is not working the neck is not too bad at all.”
Having noted that Mr Mannie’s mother has myeloma and having reviewed an MRI of Mr Mannie’s neck, Dr Sharpe commented that Mr Mannie has “signs and symptoms that would suggest he has a cervical myelopathy. Reflexes are brisk probably exaggerated and there is some minor pyramidal signs and he has a positive Lhermitte’s sign”. He referred Mr Mannie for a further MRI of the neck to provide “more detail about the cord itself”.
In a letter to Dr Pope, dated 26 June 2013, Dr Sharpe refers to his initial report which suggests that Mr Mannie had a cervical myelopathy and notes that since he saw him then Mr Mannie has developed “some symptoms in the right arm”. He sought Dr Pope’s comments regarding the type of surgery he felt may be necessary.
In a letter to Mr Mannie’s legal representatives, dated 25 September 2013, Dr Sharpe refers to his consultation on 7 June 2013 and states that:
“the history [Mr Mannie] gave me at that time was of recurrent neck pain going back more than 5 years treated with physiotherapy. The more immediate problem occurred in the 2 months prior to my seeing him, and this I feel corresponded to the onset of neurological symptoms which were accompanied by the signs of a cervical myelopathy as detailed in that report.”
Having recorded a history of neck pain, Dr Sharpe adds that Mr Mannie “may well have had musculo-ligamentous symptoms in his upper limbs, as a result of his work” but he doubted that they were the “same symptoms with which he presented” three months earlier.

Dr Pope

On 28 June 2013, Mr Mannie attended on Dr Pope, at the request of Dr Sharpe. In a letter to Dr Sharpe dated the same, Dr Pope records a history of “chronic neck pain at the craniocervical junction midline with bilateral radiation”. He notes that Mr Mannie has “had existing right upper limb pain from work using the digital pen. Pain in the lateral forearm and going into all fingers”. He also notes that Mr Mannie “gets tingling in the spine consistent with a Lhermitte’s phenomena”.
Dr Pope records that he reviewed an MRI and CT of the cervical spine. He opined that Mr Mannie is “suffering from cervical myelopathy and this is progressive”. He noted that it mainly affects his upper limbs, more so on the left side than the right. There are myelomalacia changes in the posterior aspect of the spinal cord. He recommended urgent decompression to prevent further deterioration.
On 24 August 2013, Dr Pope wrote to BT Financial Group advising that Mr Mannie consulted with him on 28 June 2013 complaining of “bilateral upper limb numbness, pain and dysfunction and gait disturbance for three months and neck pain for years”. He added that “[w]e did not specify exactly how many years he had neck pain but in the context of the overall case, it is somewhat irrelevant”. He further added:
“The cause for [Mr Mannie’s] cervical myelopathy has been identified as a C4/5 and C6/7 disc herniations and degeneration causing canal stenosis and cord compression. This has been identified on MRI and also physical examination and history by both the Neurologist and a Neurosurgeon.”
On 4 October 2013, Dr Pope wrote to Mr Mannie’s legal representatives. He refers to the “history of chronic neck pain at the craniocervical junction, midline with bilateral radiation and also existing right upper limb pain from using the digital pen at work over the years”. He noted that Mr Mannie was made redundant in February 2013 and started to get major upper limb symptoms in April 2013.
Dr Pope said Mr Mannie has:
“a condition known as cervical myelopathy due to compression of the spinal cord, secondary to bulging discs and overgrowth of ligament and also facet bony joints. This causes irreversible damage to the spinal cord with symptoms involving upper limbs and lower limbs and a whole range of functional activities such as fine motor movements, power sensation and balance”.
He added:
“A job such as Mr. Mannie’s which is essentially fine dextrose motor movements sitting at a desk using a digital pen, requires levels of a prolonged long concentration and fine motor control of the upper limbs. This would not normally be associated with an increased risk for this condition worsening.
Even though it has been made clear that he had symptoms particularly whilst doing job activities it remains unclear as to whether his work activities were making his condition worse. The natural history of the disease process is one that may deteriorate regardless of occupation but more heavy labour jobs of repetitive twisting and lifting and moving one’s head such as crane driver is or stevedores may have an increased chance of progressive myelopathy worsening.
I would therefore conclude that Mr. Mannie’s employment is a contributing factor to his disease process but not the cause of his disease process.
In the absence of any falls or trauma work that have been documented and lodged with his employer would be very difficult to prove causation in this case.”

Dr Bodel

On 31 July 2014, Mr Mannie was examined by Dr James Bodel, orthopaedic surgeon, at the request of his solicitors. In a report dated 1 August 2014, Dr Bodel records Mr Mannie’s work history and duties undertaken.
Dr Bodel states that Mr Mannie “developed a gradual onset of neck and right upper limb pain and later left upper limb pain and then an abnormal gait pattern which he associated with the nature and conditions of work”. He also records that there is “no history of any pre-existing pathology or previous condition”.
Dr Bodel records that it appears that Mr Mannie “developed cervical myelopathy”, having considered radiological investigations confirming significant disc pathology at “C4/5 and at C6/7 with a large right-sided disc osteophyte complex at both levels”. He also noted “evidence of changes in the spinal cord at L4/5”. He added that the:
“degenerative process in the neck has arisen gradually over time. The nature and conditions of work is an aggravating factor and there is no history of any other accident or injury causing the pathology in the neck.
[He] would therefore indicate that this gentlemen has an aggravation, acceleration, exacerbation and deterioration of a disease process of gradual onset and that aggravation has been caused by the nature of his work.”
In response to a request to provide his opinion on what caused the current condition, Dr Bodel said Mr Mannie’s:
“clinical condition is a degenerative process at C4/5 and C6/7. It is likely that the disc pathology has come on gradually over many years associated with the nature and conditions of his work as a graphic artist. I am confident that the nature and conditions of his work is an aggravating, exacerbating, accelerating and deteriorating factor and that work in general is a substantial contributing factor to the injury.”
Dr Bodel found Mr Mannie’s clinical condition had stabilised. He noted that there is “some pre-existing condition here which is contributing” to Mr Mannie’s whole person impairment but the exact level of pre-existing impairment was too difficult to determine. He assessed Mr Mannie with 25 per cent whole person impairment, comprising of 24 per cent impairment of the spine and one per cent impairment for scarring.
On 19 January 2016, Dr Bodel issued a supplementary report. In that report he considers the report of Dr Machart dated 2 December 2013, the report of Dr Pope dated 4 October 2013, a letter from Dr Sharpe dated 25 September 2013, and a report of Dr Machart dated 26 November 2015. Dr Bodel states that this “additional information does not cause me to alter the assessments that I gave back in 2014 in regard to [Mr Mannie’s] injury”.

Dr Machart

On 26 November 2015, Mr Mannie attended on Dr Machart, at the request of the respondent’s legal representatives. In a report dated the same, Dr Machart records a history of the injury and treatment undertaken. He records that Mr Mannie developed pain in the right forearm and elbow early in 2004, which was reported to be due “to repetitive keyboard work and using graphic tools”. There is no specific reference to injury to the cervical spine arising from the work injury in the history recorded. Under the heading current symptoms it is recorded “[n]eck pain”.
Under the heading “Cervical spine” the following is recorded:
“There was no spasm and no deformity. There was no specific segmental tenderness. There was reasonably preserved movement in the cervical spine, 60° rotation to each side, and good flexion and extension.
Reflexes in the upper limbs were brisk and symmetrical. Reduced sensation globally in both hands was reported. Strength testing could not be conducted to my satisfaction because of concurrent report of pain.
There was tenderness in the forearm extensor muscles.”
He records the general practitioner’s suggestion that there were muscle ache symptoms in 2007 and states that if he were to accept that as being true “then cervical spondylosis cannot be implicated in the onset of the muscular symptoms in 2007”.
In response to a question whether he agrees with Dr Bodel and Dr Sharpe that Mr Mannie had cervical myelopathy, which was aggravated by the work he performed with the respondent, Dr Machart said he did not agree. He said:
“Given the nature of his work, I would not have considered that there was a significant impact from his work on cervical spondylosis, disc protrusion, and progressive myelopathy, while not working, and prior to that on light duties.
On the balance of probabilities the 3 level cervical spondylosis is more likely to be constitutional, and would have been evident irrespective of Mr Mannie’s employment.”

Dr Machart finds that Mr Mannie has constitutional cervical spondylosis. He records that the pre-existing condition appeared to be “the predominant factor in Mr Mannie’s symptoms and the need for surgery. The current condition is due to cervical spondylosis. Work related muscle ache had ceased.” No proportion of Mr Mannie’s current condition was found to be attributable to work. Dr Machart specifically said: “[w]ork did not cause the pathology. The pathology progressed while on light duties, irrespective of work. The work related symptoms were muscle ache”.
In evidence is a supplementary report of Dr Machart, dated 8 April 2016. In that report Dr Machart records that Mr Mannie was treated for “3 level severe spondylosis in the cervical spine. This is a constitutional condition which was always going to be symptomatic, and progressively so irrespective of employment that he was exposed to.” He adds there was no structural component to the alleged injury and none of the structural elements of the constitutional condition were “caused or aggravated by the injury”.
Dr Machart further records that Mr Mannie’s work was “light, and did not involve strenuous activity in the neck” which “can aggravate spondylosis or cause structural damage”. He adds that in the absence of Mr Mannie’s employment, he would be suffering from “3 level spondylosis. The proof is in the fact that the symptoms of spondylosis continued to increase after he stopped working”. He also adds that if there was aggravation from work then he would have expected “easing or resolution of symptoms once the aggravator factor was removed, that is when he stopped working” but the opposite happened, and Mr Mannie underwent cervical surgery.

THE ARBITRATOR’S REASONS

The Arbitrator considered the nature of Mr Mannie’s work as described in his various statements. She noted that his work as a graphic artist was manual work prior to the introduction of a MAC computer in 1993. Since then his work consisted of fine detail and retouching of photographs using the graphics tablet on his desk and a touching pen. Mr Mannie made no complaints regarding his neck prior to his ceasing work with the respondent in February 2013. He said that that was because of fear of losing his job.
Throughout 2007 and 2008 the Arbitrator recorded various complaints of neck symptoms to his treating doctors. They record tenderness in the right trapezius muscle and intermittent pain around the neck and shoulder.
There are no recorded complaints of neck pain to Mr Mannie’s treating doctors in the period between 2008 and 2013, notwithstanding various attendances upon his doctors during that time. Medical certificates relating to his condition in the period 2007 and 2008 made no reference to his neck.
The Arbitrator found that it was significant that Dr Sharpe did not relate Mr Mannie’s symptoms to work with the respondent. Dr Sharpe said that he was unaware that repetitive or repeated use of one arm over the other could give rise to cervical myelopathy.
The Arbitrator also found it significant that none of the general practitioners’ consultation notes referred to work duties, except in the 2007–2008 period when he was using the digital pen.
Dr Pope confirmed that Mr Mannie was suffering from cervical myelopathy, a progressive and irreversible condition which required urgent decompression. He did not consider the condition to be work related. The Arbitrator found it “telling” that Dr Pope considered that Mr Mannie’s employment, involving fine motor movements sitting at a desk using a digital pen, would not normally be associated with an increased risk of his condition worsening. He concluded that Mr Mannie’s condition would have progressed regardless of his occupation. He qualified his opinion by expressing the view that more heavy employment, such as crane driving or stevedoring, might have an increased risk of progressive myelopathy worsening. In the overall context of Dr Pope’s opinions, the Arbitrator was not persuaded that his views expressed support for the proposition that Mr Mannie’s work aggravated the disease process.
The Arbitrator did not accept Dr Bodel’s opinion. She was not satisfied that he had conducted an analysis of the nature of the myelopathy condition or acknowledged its progressive nature. More importantly, the Arbitrator held, he did not explain why Mr Mannie’s symptoms significantly worsened in the months after he ceased work with the respondent, nor did he explain how the work duties could have aggravated the underlying disease resulting in a raft of symptoms including, for example, gait disturbance.
The Arbitrator preferred the opinions of Drs Sharpe and Pope to that of Dr Bodel on the question of whether the employment aggravated Mr Mannie’s condition. This was because they had had the benefit of examining him on several occasions and their reports were more contemporaneous with the cessation of his employment.
The Arbitrator accepted Dr Machart’s opinion. He expressed the view that the condition was constitutional, was always going to be symptomatic, progressively so, irrespective of the employment that Mr Mannie was exposed to. The Arbitrator concluded that Dr Machart’s opinion was consistent with those of Drs Sharpe and Pope. She concluded that the work duties performed by Mr Mannie were “not of a type to cause injury”.
The Arbitrator concluded correctly that s 4(b)(i) of the 1987 Act had no application in the circumstances of this case, as it was accepted that Mr Mannie suffered from a disease of gradual onset, namely cervical myelopathy. The Arbitrator focussed, correctly, on the application of s 4(b)(ii). She proceeded on the basis that Mr Mannie could succeed under s 4(b)(ii) only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch)).
The Arbitrator applied a common sense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)). Based on the available evidence, including in particular Drs Sharpe and Pope together with the radiological reports, she concluded that Mr Mannie was suffering from a progressive disease unrelated to his employment. Relevant to that conclusion was the fact that Mr Mannie did not seek medical treatment for his neck until four months after he ceased work. Evidence of the progressive nature of the disease, after ceasing work, was the increasing difficulties he encountered playing his guitar and ultimately his inability to play it at all.
The Arbitrator concluded (at [67]) that if Mr Mannie did suffer symptoms when working, she did not accept that the work aggravated his disease. She found that any symptoms were the revelation of the underlying disease and were not evidence that there had been an aggravation of it.
The Arbitrator noted that Dr Sharpe concluded that if Mr Mannie had suffered from symptoms in 2007, they were likely to be muscular symptoms, and different from the symptoms presented to him in June 2013.
The Arbitrator considered it significant that Mr Mannie had been able to work after 2008 and up until 2013 without any evidence of any increase in symptoms or the reappearance of neck complaints sufficient to see a doctor.
Ultimately, the Arbitrator concluded that Mr Mannie had not satisfied the onus of proof (Nguyen v Cosmopolitan Homes [2008] NSWCA 246). She found that even if she accepted Mr Mannie’s evidence that he did not want to reveal his symptoms for fear of losing his job, she found (at [72]) “it defies credulity that, had his work been aggravating his cervical spine, he would not have mentioned [it] to his doctors”.
During the course of argument the Arbitrator was referred to Albury City Council v Gunton [2011] NSWWCCPD 68 (Gunton). The Arbitrator distinguished Gunton on its facts, however she accepted the principle that each case must be determined on its own facts (Gunton at [62]).

GROUNDS OF APPEAL

The appellant’s grounds of appeal are as follows:
“1.     The Arbitrator erred in finding that the failure of [Mr Mannie] to seek medical treatment for his neck condition until 4 months after [Mr Mannie] left work (see paragraph 67).
2.      The Arbitrator erred in not applying the correct test for a disease or aggravation of a disease process.
3.      The Arbitrator erred in rejecting Dr Bodel’s evidence on Causation in paragraph 58.
4.      The Arbitrator erred in finding that Dr Machart in his report of 8 April 2016 supported the notion that [Mr Mannie’s] duties did not cause the aggravation of his condition.”

SUBMISSIONS

The alleged factual error concerning absence of treatment (ground one)

Appellant’s submissions

The appellant’s submissions are extremely brief with respect to this ground and are reproduced in full as follows:
“The [appellant] contents [sic, contends] that the Arbitrator has led herself into error by:
1. Ascribing too much emphasis to the reports of Dr’s Pope and Sharpe.
2. The manifestation of symptoms is not a ‘revelation of a Condition’ but the manifestation of an aggravation of a disease under section 16 of the Act.”

Discussion

This is an appeal under s 352 of the 1998 Act. To succeed, the appellant must establish that the Arbitrator’s determination involves an error of fact, law or discretion.
Factual findings may only be successfully challenged on appeal if it is shown, as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506, that:
“…material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The appellant’s submissions with respect to ground one are not directed to the alleged error, namely that the Arbitrator erred in making a factual finding that Mr Mannie did not seek medical treatment for his neck condition until four months after he left work.
The appellant has not demonstrated why the Arbitrator was in error in making that finding. Mr Mannie ceased work with the respondent in February 2013. Subsequently he saw Dr Gergis or other medical practitioners at the Midway Family Medical Centre on 11 February 2013, 27 February 2013, 7 March 2013, 8 May 2013, 13 May 2013, 18 May 2013, 27 May 2013 and 30 May 2013. There was no reference in any of those consultations to symptoms in relation to Mr Mannie’s neck. The first reference in his general practitioner’s records of any complaint of pain in the neck after leaving the respondent’s employ occurred on 4 July 2013.
There was no evidence before the Commission that Mr Mannie sought treatment for his neck other than through the Midway Family Medical Centre in the months after he ceased work.
It follows that the Arbitrator’s factual finding (at [67]) that Mr Mannie did not seek treatment for his neck condition until four months after he ceased work is incontestable. It follows that ground one fails.
Other than a bald submission that the Arbitrator placed too much emphasis on Drs Pope and Sharpe no reasoned argument was presented to support this ground. Reading the Arbitrator’s decision on a whole it is clear that the Arbitrator considered all the expert evidence in reaching her conclusion. I accept that the Arbitrator preferred the evidence of Drs Sharpe, Pope and Machart over Dr Bodel however her reasons for doing so were fully exposed and reveal no error.

The alleged error of law (ground two)

The appellant submits the test the Arbitrator should have applied to determine the causation question (wrongly referring to s 15 and s 16 of the 1987 Act) is “whether the employment is capable of causing aggravation”. There was no authority or reasoned argument in support of that submission and I reject it.
The appellant further submits that the Arbitrator found that Mr Mannie did “light work” and therefore this did not aggravate the condition. He submits this “does not answer the test set out in s 15/16 of the Act”. I reject the submission for the following reasons.
First, given the way in which the application was pleaded and presented, s 15 has no application. Section 15 can only be relevant where the disease injury is of such a nature as to be contracted by a gradual process. If such an injury is proven s 15 operates as a deeming provision to determine when the disease is deemed to have been sustained and the employer liable for the compensation payable. It is not alleged that Mr Mannie’s employment was causative of the myelopathy and therefore s 15 is irrelevant.
Section 16 may only operate after it is established that an injury has been sustained in accordance with s 4(b)(ii) of the 1987 Act, that is, an 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, etc, of the disease. In those circumstances s 16 operates as a deeming provision similar to s 15.
The Arbitrator correctly stated that the medical experts are in agreement that Mr Mannie suffers from a congenital condition diagnosed as cervical myelopathy (or spondylosis as diagnosed by Dr Machart). It is not contended that the condition was caused by Mr Mannie’s employment and therefore s 4(b)(i) of the 1987 Act has no application.
At a telephone conference on 22 March 2016, paragraph 4 of the application was amended, without objection, to allege “injury to the cervical spine and aggravation of disease process.” The amendment was confirmed by Mr Mannie’s counsel at the arbitration hearing. In other words the application before the Arbitrator was pleaded and presented as a s 4(b)(ii) aggravation of disease case.
The Arbitrator correctly identified that s 4(b)(ii) will be satisfied where it has been established that the aggravation, acceleration, exacerbation or deterioration of the disease occurs in the course of employment, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (at [64]).
The Arbitrator also correctly referred to and applied Semlitch as the leading authority concerning what constitutes an aggravation of a disease. In Semlitch Windeyer J held (at [9]) that an aggravation will occur when:
“...the disease has been made worse in the sense of more grave, more grievous or more serious its effects upon the patient.”
It follows that the Arbitrator applied the correct test. No error of law has been identified. That is sufficient to dispose of this ground. However, I would add the following comments in relation to the submissions made by the parties.
The appellant submits “it is not sufficient to refer to cases such as Albury City Council v Gunton [2011] NSWWCCPD 68”. It is difficult to discern from this statement precisely what submission is being made. However, from the context of what followed (at Ground two [1] of the submissions), the complaint seems to be that there was sufficient evidence to support a finding that Mr Mannie’s employment could have been be capable of causing the aggravation injury. Further, he was engaged in work of a kind that “has often been found to aggravate neck conditions.”
Whether the employment was capable of causing injury is not to the point. Mr Mannie carried the onus of establishing that the employment was the main contributing factor to the aggravation. Further, whether persons engaged in work of a kind that Mr Mannie engaged in have “often been found to aggravate neck conditions” does not advance Mr Mannie’s appeal. As the Arbitrator stated (at [73]), each case must be determined on its own facts (Gunton at [62]).
The appellant submits that the Arbitrator did not deal with his evidence or Dr Bodel’s evidence. He submits that the Arbitrator based her findings on submissions made without any evidence and on the assumption that only manual labour could be the “cause” of the condition. I do not accept that submission.
Dr Bodel’s evidence is considered under the third ground of appeal. However, with respect to Mr Mannie’s evidence, the Arbitrator considered all three of Mr Mannie’s statements (at [12]–[22]). She noted that in his first statement Mr Mannie’s made no reference at all to his cervical spine. The second statement indicates that his work as a graphic artist was “done in a very, very manual manner” prior to 1993. Thereafter, his work was done at a computer using a retouching pen consisting of fine detail and retouching of photographs. The Arbitrator noted Mr Mannie’s description of the means by which he manipulated the controls of the keyboard and the pen.
Further, the appellant submits that the Arbitrator disregarded Mr Mannie’s statement of 24 March 2016 indicating that his workload had significantly increased. That is not correct. The Arbitrator dealt with that issue at [22] of her decision. She noted that because of redundancies, in the last year of his employment Mr Mannie was doing more work than previously. In relation to Mr Mannie’s complaints that his neck and arm were getting worse, the Arbitrator noted that he made no complaint about those symptoms because of the fear of losing his job. She did not accept his reason for not reporting the symptoms, stating that it “defies credulity that, had his work been aggravating his cervical spine, he would not have mentioned [it] to his doctors”.
The submission that it was open to the Arbitrator to find an injury by way of aggravation of the disease process because Mr Mannie “stretched his neck on a constant basis, whilst operating the pen and the computer keyboard for long periods of time” is not a submission that was put to the Arbitrator. Therefore the Arbitrator cannot have erred in failing to deal with it (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111).
Mr Mannie’s application before the Arbitrator failed not because he was engaged in “light work” as the appellant submits, but because he failed to discharge the onus of proof. The Arbitrator gave several reasons for reaching that conclusion on the question of onus. Those reasons included:
(a)     Except for a brief period in 2007 and 2008, Mr Mannie made no complaint in the last four years of his employment that he suffered any symptoms in his neck as a result of his employment.
(b)     He did not complain of symptoms in his neck for four months after ceasing work notwithstanding ample opportunity to do so.
(c)     The evidence of the progressive nature of the symptoms suffered as noted by Drs Sharpe and Pope.
(d)     The rejection of Dr Bodel’s opinion.
(e)     The Arbitrator’s preference for the opinions of Drs Sharpe, Pope and Machart.
(f)      Based on a commonsense evaluation of the causal chain (Kooragang) the conclusion that symptoms Mr Mannie may have suffered whilst at work were the revelation of the underlying condition and not an injury per se.
Those findings were open on the evidence and no error has been established. It follows that ground two fails.

Dr Bodel’s evidence (ground three)

The only submission in support of ground three states:
“The Arbitrator has not explained her reasoning for not accepting that in the absence of any other injury the work injury complained of is the cause of the Appellant’s neck condition. Just because Dr Sharpe notes a history of the Appellant’s mother having Myelopathy, this does not mean that the condition is symptomatic only that the condition may be hereditary.”
As the respondent correctly observes, the appellant’s submissions seem to be directed to a question of onus of proof. The submissions fail to identify any error in respect of the Arbitrator’s findings in relation to Dr Bodel’s evidence. On that basis alone ground three must fail.
However, if the appellant’s complaint is that the Arbitrator failed to give adequate reasons for not accepting Dr Bodel, I reject it. The Arbitrator gave the following reasons (at [54]–[58]):
(a)     Dr Bodel accepted that heavy work, smoking and genetics present higher risk factors for aggravating myelopathy.
(b)     Dr Bodel did not refer to the family history, namely that Mr Mannie’s mother suffered from myelopathy.
(c)     The absence of any analysis of the nature of myelopathy or the progressive nature of the condition.
(d)     The absence of any explanation for the worsening of symptoms months after Mr Mannie ceased work for the respondent.
(e)     The absence of any reasoning to explain how the work duties so aggravated the condition so as to produce a raft of symptoms such as gait disturbance.
(f)      Drs Sharpe and Pope had the advantage of examining Mr Mannie on several occasions and at a time that was more contemporaneous to the cessation of work than Dr Bodel.

The Arbitrator’s reasons are in sufficient conformity with her statutory obligation under s 294 of the 1987 Act and r 15.6 of the Workers Compensation Commission Rules 2011, to provide a brief statement of reasons. No error is demonstrated.
The appellant’s submission regarding onus is fundamentally flawed. The appellant has the onus of proof. Injury is not established, as the appellant somewhat surprisingly submits, merely because no other injury has been identified as the cause of Mr Mannie’s symptoms. The appellant failed to satisfy the onus for the reasons given by the Arbitrator. Those findings were open on the evidence.
For these reasons ground three also fails.

Dr Machart’s evidence (ground four)

The submissions in support of this ground state:
“Dr Machart in his report of 8 April 2015 supported the notion that [Mr Mannie’s] duties did not cause the aggravation of his condition. Dr Machart does have a history of [Mr Mannie’s] duties but does not consider the effect of [Mr Mannie’s] posture at work on the disease process.”
The submission with respect to the history Dr Machart obtained is not correct. Dr Machart obtained the history that Mr Mannie was employed as a digital re-toucher, mostly using a writing instrument in the right hand. Dr Machart also noted that Mr Mannie reported pain due to repetitive keyboard work and using graphic tools. The history obtained was consistent with the evidence presented to the Arbitrator. It provided a fair climate for the acceptance of Dr Machart’s evidence (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844).
Taking into consideration the nature of the work undertaken by Mr Mannie, Dr Machart firmly held the view that Mr Mannie’s condition was entirely constitutional and would have been evident irrespective of Mr Mannie’s employment.
No error has been established with respect to the Arbitrator’s reliance on Dr Machart’s evidence. It follows that ground four also fails.

DECISION

The respondent employer’s name is amended to “Bauer Media Pty Ltd”.
The Arbitrator’s determination of 30 May 2016 is confirmed.

Judge Keating
President

22 September 2016

[2016] NSWWCCPD 47

22 September 2016

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Adequacy of Reasons

Onus of Proof