Marks v Ricegrowers' Co-operative Ltd
[2006] NSWWCCPD 46
•17 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Marks v Ricegrowers’ Co-operative Ltd [2006] NSW WCC PD 46
APPELLANT: Daniel Thomas Marks
RESPONDENT: Ricegrowers’ Co-operative Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC15027-04
DATE OF ARBITRATOR’S DECISION: 8 February 2005
DATE OF APPEAL DECISION: 17 March 2006
SUBJECT MATTER OF DECISION: Fresh evidence not evidence in reply nor evidence to address weaknesses in the case before the arbitrator; two stage process for assessing contribution of employment to “injury” under sections 4(b)(ii) and section 9A Workers Compensation Act 1987 where the “injury” consists in the aggravation of disease; onset of or increase in pain in osteoarthritis sufficient to constitute “aggravation” of disease
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Robb & Associates Solicitors Pty Ltd
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: 1.The decision of the Arbitrator, dated 8 February 2005, is revoked and the following decision is made in its place:
(1) The Respondent to pay the Appellant’s medical, hospital and related expenses pursuant to section 60 of the Workers Compensation Act 1987.
(2) The Respondent to pay the Appellant’s costs of the original proceedings.
2.The Respondent to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
This appeal is filed in the Workers Compensation Commission (‘the Commission’) by Daniel Marks (‘the Appellant’). The respondent to the original application, and to this appeal, is Mr Marks’ employer, the Ricegrowers’ Co-operative Ltd (‘the Respondent’). The Respondent’s insurer (‘the Insurer’) is CGU Workers Compensation (NSW) Ltd. The Appellant filed his original application in the Commission on 10 September 2004. The application sought an order that the Respondent pay medical, hospital and related expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). The application alleged an injury to the Appellant’s left hip in July 2001, notice of which was given on 19 July 2004. The medical expenses sought are for hip replacement surgery.
There is no dispute between the parties that the Appellant has advanced osteoarthritis of the left hip and requires hip replacement surgery. The issues before the arbitrator who determined the application (‘the Arbitrator’) were whether the Appellant had suffered a relevant injury arising out of or in the course of his employment and, if so, whether the employment was a substantial contributing factor to the injury. The application was determined on the papers by consent after two teleconferences, on 3 December 2004 and 19 January 2005. The Arbitrator made an award for the Respondent on the basis that the Appellant did not receive an injury arising out of or in the course of his employment with the Respondent. In reaching this conclusion the Arbitrator considered the claim in three possible ways- based on a fall the Appellant suffered at work in about 1996 as the initiating cause of the osteoarthritis in his left hip; based on the nature and conditions of the Appellant’s work (which involves the packing of pallets with heavy bags of rice) and based on employment causing an aggravation of an underlying constitutional condition.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 8 February 2005, records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
2. That each Party pay its own costs.”
The Arbitrator essentially reached his decision on the basis of an analysis of the competing medical reports relied on by the parties. The Appellant relied on a medical certificate from his general practitioner, and a report of an orthopaedic specialist, Dr Isbister dated 13 October 2004. The Appellant had also flagged in his application the intention of obtaining a report from his treating orthopaedic surgeon, Dr Kirwan. The Arbitrator extended the time for the filing of this report at the first teleconference to 15 December 2004. The solicitors for the Appellant notified the Commission by letter dated 15 December 2004 in the following terms: “…we have been unable to obtain the report from Dr Kirwan which was to be filed and served on or before 15 December 2004 pursuant to directions of the arbitrator made on 3 December 2004”.
The Respondent relied principally on the report of Dr Nicholls, an orthopaedic surgeon specialist, dated 4 August 2004. Dr Nicholls’ view was that the Appellant’s osteoarthritis is a constitutional condition, and that the Appellant’s employment neither caused nor aggravated the condition. The Arbitrator gave reasons why he preferred the views of Dr Nicholls in relation to each of the ways of framing the Appellant’s case discussed above. I will discuss these reasons in the substance of this decision.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
Whether leave should be granted to the Appellant to rely on fresh evidence on the appeal, being a report from Dr Kirwan dated 25 February 2005.
Whether the Arbitrator has made an error, whether of law, fact or discretion, such as to justify intervention by the Commission on review of his decision.
If so, the Appellant seeks that a decision be substituted in his favour.
ON THE PAPERS REVIEW
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.”
The parties agree that the appeal may be determined on the papers. Having regard to this consent, Practice Directions Numbers 1 and 6, and the documents that are before me I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provide for a time limit on the lodging of an appeal and a threshold quantum requirement.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act and there is no dispute that the quantum requirement is met. I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 issued in its current form on 1 November 2004 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
The Appellant seeks to rely on a report from Dr Kirwan dated 25 February 2005. The Appellant asserts that the report was not reasonably available before the Arbitrator because Dr Kirwan had failed to provide it in time, despite numerous requests made by the Appellant’s solicitors commencing 17 August 2004, including pre-payment, and culminating in numerous telephone calls in early December 2004. The Appellant asserts that “it is through no fault of the applicant that the report of Dr Kirwan which is now available, was not available for the arbitrator”. Assuming the chronology to be correct, I accept this submission. It is indeed difficult to see what further the Appellant’s solicitors could have done as far as Dr Kirwan is concerned to obtain the report by the adjourned date of 15 December 2004.
It may have been possible, however, for the Appellant to seek a further extension from the Arbitrator for the filing of the report, on the basis that the failure to file the report in time was not due to lack of diligence on the part of the Appellant or his solicitors, particularly as the proceedings were not concluded until after the adjourned telephone conference on 19 January 2005. A further extension does not appear to have been sought. The Appellant’s solicitors advised the Commission by letter dated 15 December 2004 that they had been unable to obtain the report, but did not give any details nor seek any extension. There is no indication in the records of the teleconference on 19 January 2005 as to whether the issue was raised. One explanation for the absence of a request for a further extension of time, could be that the Appellant simply made a calculated choice to proceed in the absence of the report, particularly given that he did have a specialist report supporting his case. If so, the fact that this approach proved unsuccessful is not grounds for seeking the admission of the further report as new evidence on appeal.
Neither party refers to the possibility of seeking a further extension in their submissions, and it may be that, for reasons which are not clear on the file, it was not a practicable alternative. Accordingly, on balance, I find that the report of Dr Kirwan was not reasonably available in the primary proceedings.
The Appellant must also establish that “failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case”. In relation to this second limb of the test for leave propounded in the Practice Direction, the Appellant concedes that some evidence as to Dr Kirwan’s views was before the Arbitrator, in the form of a report dated 15 June 2004 written by Dr Kirwan to the Appellant’s general practitioner, but says this report, unlike the report now obtained, did not deal specifically with the issues before the Commission. I do not completely accept this contention. The report was certainly not written for the Commission, but it specifically refers to the possibility of payment for hip replacement surgery by workers compensation in these terms “A total hip replacement has been arranged. Mr Marks is going to explore the possibility of WorkCover for this problem, as the nature of his work has contributed somewhat to the development of the condition”.
Further, the Arbitrator considered that report, describing it as giving “somewhat lukewarm” support to the Appellant’s case (paragraph 28 of his Reasons). The Arbitrator concluded that “Dr Kirwan’s comments do not support the contention of a ‘substantial’ contribution from work activities” (paragraph 30). The Appellant says that the further report should be admitted for the very reason that the Arbitrator reached a negative assessment of Dr Kirwan’s support for the Appellant’s case on the evidence before him. In this regard the appeal states that the report should be admitted “by reason of the comments made by the arbitrator with respect to Dr Kirwan in the course of the reasons for determination”. It is significant to note that in the new report Dr Kirwan states not only that the Appellant’s work contributed to his condition, but also that this employment “contributed substantially both to his symptoms, and to progress of the pathology and the disease” (answer to question 6). What the Appellant now seeks to do is to address the Arbitrator’s comments by reliance on a report that contains the assessment by Dr Kirwan that the Appellant’s employment contributed “substantially” to his condition, rather than the remark that work has contributed “somewhat”.
In my view this is a misconception of the role of new evidence. New evidence on appeal is not an opportunity to address weaknesses in the Appellant’s original case, as revealed in the primary decision. This misconception as to the role of new evidence is also evident in the portion of Dr Kirwan’s later report that comments on the evidence given by the Respondent’s specialist. Dr Kirwan disagrees with Dr Nicholl’s views as to the severity of activity necessary to cause arthritis, views which were accepted by the Arbitrator in making his decision. Again, new evidence on appeal is not evidence in reply. If a party wants to obtain such evidence, it must be obtained for the original hearing.
The Respondent objects to the admission of the report. It asserts, correctly, that an appeal under section 352 of the 1998 Act is a review, not a hearing de novo on the basis of facts which become available at a later time. It also relies on the clear intention in the legislation and the Commission’s practice directions that proceedings be “front end loaded” and says sufficient reason is not shown why this “over-riding” principle should be overturned. Further, the Respondent makes the point that Dr Kirwan’s case notes were before the Arbitrator, formed part of the Appellant’s case and were considered by the Arbitrator in his Statement of Reasons, and that Dr Kirwan states in the report now sought to be relied on that he compiled it from his case notes. Thus it seems the report is not the result of a further examination or investigation by Dr Kirwan, or any new development in the Appellant’s condition, but is based on material already before the Arbitrator.
Finally, the Respondent objects to the admission of the report on the basis that its probative value is weak, given that it is clear that from the report that Dr Kirwan was told that the Appellant’s application had failed and this was why he was writing the report. Dr Kirwan’s later report begins “Thank you for your letter of 16th February 2005. I gather from the comments in your letter that insufficient evidence was available for Mr Marks’ claim to be adequately assessed. In that regard, I trust the following report, which has been compiled from my clinical notes will assist”.
I do not consider that the Appellant has established that failure to admit Dr Kirwan’s later report would cause a “substantial injustice in the circumstances of the individual case”. The only new aspects of Dr Kirwan’s report are in relation to the degree of contribution played by the Appellant’s work to his condition and the comments on Dr Nicholls’ evidence. In the later report Dr Kirwan says that work played a “substantial” contribution, in the earlier that it contributed “somewhat”. It is unclear whether this difference is the result of a change of view, or because the later report was the first time that Dr Kirwan really turned his mind to the degree of contribution, but in any event I accept the submission of the Respondent that the probative value of the assessment is weak given the circumstances in which the report was obtained. The comments on Dr Nicholls’ evidence are highly relevant, but it would be unfair to the Respondent to allow that evidence to be admitted at this stage and in this way. Had the evidence been available before the Arbitrator the parties may have decided to call oral evidence, for example, to allow exploration of the difference in views and not consented to the case proceeding on the papers. For these reasons I refuse leave to admit the new evidence.
EVIDENCE AND SUBMISSIONS
I have before me all the documents before the Arbitrator, as listed by him in his Statement of Reasons. In addition, I have taken into account the Arbitrator’s notes of the first teleconference on 18 November 2004, which record the directions made at that teleconference; the Statement of Reasons and Certificate of Determination issued by the Commission; the submissions put by the Appellant on the appeal and the submissions by the Respondent in opposition.
DISCUSSION AND FINDINGS IN RELATION TO ALLEGED ERROR
Both parties acknowledge (the Respondent explicitly, the Appellant by implication) that on review the Appellant must first establish an error by the Arbitrator, whether of law, fact or discretion, before the decision may be reconsidered (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). It is not every error which will justify reconsideration of the arbitrator’s decision. The error must be such that, but for it, a different decision should have been made (Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56).
Alleged error in relation to calf feed
The Appellant sets out in his submissions 3 errors which he alleges the Arbitrator made. The first alleged error is the Arbitrator’s statement in paragraph 18 of the Reasons that the Appellant claimed to have suffered pain after stacking 70-80 tons of calf feed in 2000. The Arbitrator rejected this statement, which he describes as having been made in the Appellant’s submissions, because in the Appellant’s statement he said this incident occurred in 2004. The Appellant now says that the Arbitrator was in error, because “no where does the applicant maintain that in 2000 he stacked 70-80 tonnes of calf feed” (paragraph 1 under the heading “Submissions in support of application for leave to appeal”). I consider that the Arbitrator was entitled to conclude that the Appellant was asserting this in the first paragraph of the submissions, as opposed to his statement, given that a reference to this event is made in that first paragraph directly after the statement “Approximately 3-4 years ago the applicant noticed ongoing pain with respect to his left leg”. This may not have been what the Appellant’s solicitors intended to say, but it was not an unreasonable interpretation.
Further, even if the Arbitrator had been in error in this respect, I do not think that it was a material error. In the context, the comments by the Arbitrator appear to state merely that each party has been guilty of departing from the evidence to some degree in their submissions. The particular statement about the calf feed in the submissions was not relied on by the Arbitrator in any other respect to justify his decision. In fact, he accepted the Appellant’s own statement as accurate in all respects. This ground is not established.
Alleged error in relation to work history
The second ground is that “the arbitrator incorrectly interpreted the work history provided by the applicant and placed an inappropriate reliance on a history obtained by Dr Nicholls whish was not supported by the evidence” (paragraph 7, set out in detail in paragraphs 2 and 3 of the relevant portion of the Appellant’s submissions). The Appellant asserts that the Arbitrator was in error in preferring the opinion of the Respondent’s medical specialist, Dr Nicholls, rather than the Appellant’s, Dr Isbister, because the Arbitrator considered the description of the nature and conditions of the Appellant’s work relied on by Dr Nicholls to be the more accurate. The particular issue in question is the time at which the Appellant’s work, which required stacking pallets with bags of rice, became mechanised, by the use of a palletiser machine. The only direct evidence before the Arbitrator as to the requirements of the Appellant’s work was that given by the Appellant in his own statement. The Respondent did not call any evidence to the contrary. Thus the Appellant’s statement must form the basis for measuring the accuracy or otherwise of the work requirements relied on by the doctors.
The difficulty is that the statement itself is not entirely clear. The Appellant states that he has been employed by the Respondent since 1989 (i.e. 15 years). He says (in relation to he and his team) “We operate and use a palletiser machine”. He does not explicitly say when this machine was introduced. He also says “There are occasions when are required to stack pallets by hand”. He describes what is involved in hand stacking (which includes jumping down from the pallet once it is loaded onto the concrete floor), then says “Approximately 7 pallets per week are done on this process. Approximately 12 to 18 months ago this process was performed on a daily basis. The staff work on a rotating basis so every third pallet of product required one staff member to do the manual stacking and jumping down from the pallet. Approximately 17 to 30 pallets were stacked manually per day depending on the product”. He continues “This process was the most physical aspect of my work as it required repetitive twisting and bending and jumping down from the pallets”.
Dr Nicholls states that the Appellant told him that he had worked for the Respondent for the past 15 years and that “During the last 6 years the work has been more mechanised with a “palletising” type of machine”. In his conclusion, Dr Nicholls said
“I note a suggestion has been made that work activities involving carrying heavy rice sacks and stepping or jumping down from pallets could have caused the problem. From a bio-mechanical point of view the forces transmitted across the hip with such activities is probably not as great as walking or engaging in moderate physical activity and therefore I do not believe that this type of work activity could be held responsible for the development or acceleration of the degenerative process.”
In Dr Isbister’s report under the heading “Occupation & Work” the nature of the Appellant’s employment is recorded as lifting bags of rice, and “hand stacking pallets with 25-40 kgm bags of rice”. Under the heading “History of injury” the following appears: “His general job had previously included stacking pallets which required him to jump up and down from the load with continual jarring of his hips” (emphasis added). Under the heading “Relationship to injury” Dr Isbister states: “In my opinion his Osteoarthritic condition has at least been aggravated severely by the nature of his employment with Ricegrowers Co-operative Ltd over the past 15 years where he has been constantly required to jump down from pallets on which he has loaded product” (emphasis added). In relation to “Aggravation” Dr Isbister states: “I my opinion his hip condition is consistent with having been aggravated and probably initiated by injuries which had occurred during his work with Ricegrowers Co-operative Ltd where he was required to lift heavy loads, climb on pallets and jump down from the packed load” (emphasis added).
I do not accept the Appellant’s submission that “the work history provided to Dr Isbister by the applicant (more accurately the work history recorded by Dr Isbister, as one cannot know on the papers what the applicant actually said) is consistent with his statement and inconsistent with the history obtained by Dr Nicholls” (paragraph 2 of the appeal submissions). It is apparent that the work history recited by each doctor in relation to the extent to which pallets were hand stacked, requiring the Appellant to jump down from the stacked load, differs from the account given by the Appellant in his statement, although in different directions. Dr Nicholls appears to state that the palletiser was introduced 6 years ago, when the Appellant implies that this was only 12-18 months ago (although he does not state exactly when it was introduced). Dr Isbister on the other hand does not refer to the machine at all. Some of his comments imply the stacking of pallets is still by hand (for example “has been constantly required”), other comments imply hand stacking is in the past (the use of the past tense on some occasions, and the word “previously”).
It is not possible to determine why the work history recorded in the medical reports differs from that given by the Appellant in his statement, or from doctor to doctor. Although each history differs somewhat from that given by the Appellant, in my view the Arbitrator was entitled to prefer the view of Dr Nicholls, based on the work history he records, and to take the view that Dr Isbister had an “exaggerated” view of the Appellant’s work requirements (paragraph 26 of the Reasons). This is because Dr Isbister does not refer to the use of the palletiser at all. From the Appellant’s own statement, the use of this machine has brought about a dramatic reduction in the physical demands of the work, in particular in relation to hand stacking, and jumping down from loaded pallets. This ground of the appeal is not established.
Alleged error in relation to aggravation of disease
The third ground is that “the arbitrator failed to appropriately understand the distinction between a condition being substantially contributed to by the applicant’s employment and an aggravation of that condition being substantially contributed to by the applicant’s employment” (paragraph 6 of the appeal submissions, set out in detail in paragraphs 4 and 5). The Appellant submits that the correct approach in relation to aggravation of the condition as a basis of the Appellant’s case is to consider whether or not the Appellant’s employment was a substantial contributing factor to the aggravation of the arthritis in his hip, and the Arbitrator erred by relying on in relation to this point comments by Dr Nicholls on the different issue as to whether or not employment substantially contributed to the condition (paragraph 4 appeal submissions) (emphasis added). The Appellant also may be asserting that on the weight of evidence on this point the Arbitrator came to the wrong conclusion.
Failure to undertake two stage process required by sections 4 and section 9A
Before considering this ground in detail it is appropriate to first consider the relationship between the definition of “injury” in section 4 of the 1987 Act and the requirements of section 9A of that Act, that no compensation is payable unless employment was a “substantial contributing factor” to that injury. There is no dispute that the Arbitrator correctly stated indicated in his reasons that the two issues in dispute where whether the Appellant had received an “injury” (s9 of the 1987 Act), which is defined by s4 of that Act to mean “personal injury arising out of or in the course of employment”, and whether the employment was a “substantial contributing factor” to the “injury” (s9A of the 1987 Act). “Injury” as defined by section 4 includes “the aggravation …of any disease, where the employment was a contributing factor to the aggravation” (s4(b)(ii)). Both sections require consideration as to whether employment has contributed to the aggravation of disease. It is important to note that in determining the first issue of injury, work need only be “a contributing factor” to the aggravation of disease, not “a substantial contributing factor” as required by section 9A. It is possible that work may contribute to the aggravation of disease, and so satisfy the initial issue of injury, but not substantially, and so not satisfy the section 9A requirement. The Act requires that the issue of contribution to aggravation of disease be considered in these two stages. I consider that the Arbitrator made an error in his analysis of these two sections, in that he failed to clearly distinguish these two stages.
The Arbitrator considered the Appellant’s case on three possible bases: a fall at the Appellant’s work as a possible cause of the disease; the nature and conditions of the work as a possible cause; and employment as causing an aggravation of the disease. Paragraphs 20-26 relate to the first two possible bases and reject them. Paragraph 27 reads “Did employment cause an aggravation of the condition?” and the following paragraphs discuss this possible third basis. The Arbitrator’s conclusion is stated in paragraph 31 as follows: “Daniel Thomas Marks did not receive an injury arising out of or in the course of his employment with Ricegrowers Co-operative Ltd”.
Thus the Arbitrator expressly found for the Respondent not on the basis that the Appellant suffered an injury, being the aggravation of his osteoarthritis, but his employment was not a “substantial contributing factor” to that aggravation (the section 9A ground) but on the basis that his employment did not contribute at all to the aggravation of his disease (the section 4 ground). The reasoning in paragraphs 28-30, however, which precedes this conclusion relates to the section 9A ground. In those paragraphs the Arbitrator rejects the Appellant’s case because he does not consider the evidence establishes that work activities were a substantial contributing factor. This is most clearly expressed in paragraph 29 where the Arbitrator states:
“even if one was to accept that the duties carried out by the Applicant did cause an aggravation of the condition the Applicant cannot overcome the hurdle of establishing that it was that work which was a substantial contributing factor to the aggravation. The meaning of the work ‘substantial’ has been discussed at length in a number of decided cases and has been defined as meaning, inter alia, real, of substance, more than minimal and important”.
I consider the Arbitrator has shown a clear error in his reasoning in relation to the two stage process required by sections 4 and 9A where the injury alleged is aggravation of a disease. The Respondent asserts that the Arbitrator’s discussion of section 9A although brief was adequate and that he was entitled to find on the basis of Dr Nicholl’s report that “the worker’s employment was not a substantial contribution to the permanent aggravation of the worker’s condition” (paragraph 20 of the submissions in opposition to the appeal). Whether or not this is correct, it is not the point. The Arbitrator’s reasoning is in relation to section 9A but his conclusion is not.
Contribution to aggravation of symptoms of the condition not the condition itself
Further, I consider that the Appellant has also established the third ground he argues, that to the extent the Arbitrator considered section 9A he applied the wrong test- that employment must have been a substantial contributing factor to the underlying condition itself, and not merely to the aggravation of it. It is difficult to discuss this ground given the flaws in the Arbitrator’s reasoning, as on his conclusion he should not have been discussing section 9A at all. For the purposes of the discussion of this ground, however, I will assume that the Arbitrator had found there was an injury and so was entitled to consider section 9A.
The starting point for consideration of this ground is to determine what constitutes “aggravation” of disease. Neither party referred the Arbitrator or the Commission on appeal directly to any authorities on this point, although the leading authority, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Federal Broom’), is referred to in Cant v Catholic Schools Office [2000] NSWCC 37 (‘Cant’), which is relied on by the Appellant. Federal Broom predates section 9A and turns on the definition of “injury” in section 4(b)(ii) but the decision remains relevant as both sections 4(b)(ii) and 9A require that employment contributed to the “aggravation” of the disease.
In Federal Broom the worker suffered the pre-existing disease of schizophrenia. She suffered a slight physical injury at work, which did not cause a long lasting bodily injury, but she became unable to work due to a delusional belief that she continued to suffer bodily injury. Her case was that her employment was a contributing factor in the “aggravation” or “exacerbation” of her disease by virtue of the physical accident causing the development of this new delusion. Her employer appealed to the High Court against decisons in her favour in the Compensation Court and Court of Appeal on the basis that it could not be said employment had caused an “aggravation, acceleration, exacerbation or deterioration” of her pre-existing disease because it was only the symptoms of her disease (being delusions) that had worsened, not the underlying disease itself. The High Court rejected this view. Kitto J., with whom Taylor J. and Owen J. agreed, adopted the decision of Moffit J. in the Court of Appeal that the word “exacerbation” “is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development” (page 634).
There is some discussion in the case as to whether the different words “aggravation”, “acceleration”, “exacerbation” and “deterioration” may import different things, but in my view that is not relevant in this case. That discussion was principally in relation to the possible distinction between “acceleration” and “exacerbation”. Here the case for the Appellant is that there was an aggravation in his arthritis, and in Federal Broom that word was used interchangeably by the worker and some judges with “exacerbation” (see, for example, the decision of Windeyer J. at pp636, 640). The decision of Kitto J. also supports the view that even a temporary worsening of the symptoms of disease may constitute exacerbation. I consider this applies equally to aggravation. Kitto J. quotes with approval the dictionary definition of “exacerbation” as “A temporary increase in the violence of the symptoms of a disease” (page 634). The Respondent asserts in its submissions on the appeal that aggravation must be permanent (paragraph 20) without citing any authority in support of that proposition. In my view it is incorrect, being inconsistent with Federal Broom. I consider the submission of the Appellant that an increase in pain, being a symptom of osteoarthritis, is aggravation of disease within the meaning of section 4(b)(ii) to be correct, and that this may be so even if the increase in pain is temporary.
Given then that increase in pain is sufficient “aggravation” of disease, and assuming for the purposes of this discussion that employment contributed to that aggravation (so satisfying the definition of “injury”) what then is the test under section 9A? Section 9A(1) provides that “No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury”. The Appellant asserts that where the injury relied on is the aggravation of disease, then section 9A requires only that the activities or requirements of the worker’s employment were a substantial contributing factor to the aggravation of that disease, not the progress of the disease itself. Where the aggravation relied on is increased pain, then it follows on this reasoning that it is sufficient if the Appellant establishes that his work activities were a substantial contributing factor to increased pain. It is not necessary to show that they were a substantial contributing factor to advancing actual deterioration of his hip.
The Appellant relies on the decision of Burke J. in Cant to support these propositions. In that case, the worker was found to suffer a pre-existing constitutional vulnerability in her lower back which only became symptomatic after an incident in which she stretched forward suddenly at her work as a teacher. Burke J. relied on Federal Broom as support for the proposition that “irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker”. He found that the worker had suffered an injury being the aggravation of her pre-existing condition. He then considered whether the worker satisfied section 9A. He held that where the injury relied on is the aggravation of disease, then section 9A only requires that the employment “be a substantial contributing factor to the aggravation etc of the disease as distinct from the disease itself” (paragraph 21). He was alive to the fact that where the aggravation was slight, but employment substantially contributed to that slight aggravation, the employer may nevertheless be held liable and that this may defeat the intention of section 9A (see the discussion in paragraphs 24-25) but held that this result flowed necessarily once the extended definition of “injury” was interpolated into section 9A (paragraph 22).
Did the Arbitrator correctly apply this law in his discussion of section 9A? In my view, no. His discussion appears to assume that the Appellant was required to show a worsening in the underlying condition, not just worse symptoms such as pain. His heading in paragraph 27 “Did employment cause an aggravation of the condition?” refers to “the condition” and he uses the word “condition” repeatedly in paragraphs 28 and 29. In his discussion in paragraph 28 he refers to Dr Nicholls as being “sceptical of the suggestion that the Applicant’s jumping and carrying load could be responsible for acceleration of the osteoarthritic changes”. That is, it seems clear he assumes that a worsening of the underlying condition must be shown. In fairness, this is also the assumption made by Dr Nicholls as is shown by his comment that “Work could only be considered likely to produce temporary symptomatic aggravation and not deterioration of the underlying arthritic process”. It is not, however, the correct legal test. I accept the submission of the Appellant that the determination of the issue of contribution is a legal one, to be assisted by medical evidence but only if the medical evidence is directed to the correct questions. Finally, in paragraph 30 the Arbitrator states that Dr Nicholls’ comments “although addressed to the question of causation of the condition rather than aggravation of it, apply equally to the latter issue” and relies on those comments, rather than Dr Nicholl’s concession that work could cause an increase in pain, in rejecting the contention that employment substantially contributed to the aggravation of the osteoarthritis. I consider the Arbitrator was in error in not appreciating that aggravation of symptoms could be sufficient contribution by employment for both sections 4 and section 9A.
Decision on error
Having regard to the disjunction between the Arbitrator’s reasons and his conclusion, and his error in accepting medical evidence in relation to the advance of the underlying degenerative changes as determinative of the issue of aggravation, I revoke the Arbitrator’s decision. I consider there is sufficient evidence before me to consider the matter anew and substitute a decision and will do so.
SUBSTITUTED DECISION
“Injury”
The first issue to consider is whether the Appellant suffered an “injury” within the meaning of section 4 of the 1987 Act. In the Appellant’s written submissions before the Arbitrator the Appellant submitted three alternative bases for finding injury: (1) a fall in approximately 1996; (2) the nature and conditions of his work; and (3) aggravation of underlying osteoarthritis. The Respondent in its written submissions before the Arbitrator disputed “injury” on all grounds, although the major emphasis in those submissions is in relation to section 9A.
In relation to the first possible basis, the fall, the Appellant states in his statement dated 9 September 2004, that “(t)he only previous injury I can recall to my left leg was when I fell next to the old bailing machine at my place of employment when I slipped on oil. This was about 8 years ago. I think I had a day off work and my left leg returned to the pre-injury condition shortly after the fall. I reported the accident.” The Respondent disputed this fall in its submissions on the basis that there was no written contemporaneous evidence corroborating the fall in the records of the Appellant’s treating doctors or the Respondent in the records produced to the Commission under direction for production (paragraph 9 of the submissions). In my view this is not critical. The Respondent called no evidence to dispute the Appellant’s account of the fall. I accept the Appellant’s evidence and find he suffered the fall as alleged.
The next issue is whether that fall caused the development of osteoarthritis in the Appellant’s left hip. Dr Nicholls records the fall in his report (although he describes it as occurring in 1998- this difference is not material in my view) but concludes as follows:
“Mr Marks has primary osteoarthritis of the left hip. This is essentially a constitutional and slowly progressive degenerative process. There have been no episodes of trauma sufficient to cause the condition or to accelerate the degenerative process. The only type of trauma which could reasonably be expected to cause or accelerate the degenerative process would be a dislocation where damage to the articular surface or damage to blood supply is likely or an injury causing a fracture or haemarthrosis. However neither of these scenarios would appear to be relevant in this case”.
Dr Isbister takes a different view, stating “In my opinion the initiating cause is likely to have been a fall of some description such as he has (sic) describes having occurred during his employment”. Dr Kirwan does not refer specifically to the fall in his brief report to the Appellant’s general practitioner, Dr Yuen, dated 15 June 2004 stating only that “the nature of his work has contributed somewhat to the development of the condition”. It is unclear whether this comment relates to the initial onset of the arthritis, or its aggravation, or both. I will treat it as relating to both. I also take into account the report of Dr Stephenson, radiologist, in relation to X-rays taken 14 January 2002, which states the X rays were required as a result of pain radiating down the Appellant’s right (not left) leg. That report states that there is osteoarthritis in both hips, although lesser in the right. This tends to support the view of Dr Nicholls that the arthritis in the Appellant’s left hip is a “constitutional and slowly progressive degenerative process”, rather than the result of a fall affecting that hip only.
The Appellant bears the onus of proof in relation to injury, and I do not consider he has discharged that onus in relation to the fall as an initiating cause of arthritis on the evidence before me. Of the two specialists who comment on the fall as the possible cause of the condition, I consider the opinion expressed by Dr Nicholls to more likely be correct. I do so on the basis of his more detailed discussion of the point and the fact that he discusses the disruption to body processes as a result of trauma that is required to initiate the condition. His view is also supported by the X rays taken in 2002 (which do not appear to have been before him when he wrote his report). I find that the fall did not cause the onset of the arthritis.
The next basis is that the nature and conditions of the Appellant’s work caused the arthritis. In relation to this ground, the Respondent submitted before the Arbitrator that “the amount of manual work performed by the applicant dramatically reduced about six years ago as a result of the applicant being promoted to the position of packing team leader and due to the introduction of a palletiser machine” (paragraph 2). In addition, the Respondent submitted that it was not necessary to jump from the top of a manually loaded pallet and described a different process for descending from the pallet (also paragraph 2). There is no evidence to support these submissions. They are inconsistent with the only evidence before me as to the nature and conditions of the Appellant’s employment, being his statement, in which he implies that the work became mechanised only 12-18 months before September 2004 and sets out the requirement to undertake heavy physical work although he is a team leader. Accordingly, I do not accept this aspect of the Respondent’s submission.
Dr Kirwan, the Appellant’s treating orthopaedic surgeon, expresses the view in his report of 15 June 2004 that “the nature of (the Appellant’s) work has contributed somewhat to the development of (the osteoarthritis)”. Both the consultant specialists, Dr Nicholls and Dr Isbister, comment in more detail on the relationship between the Appellant’s work duties and the development of osteoarthritis in his left hip. Dr Isbister’s view, expressed under the heading “Relationship to Injury” is “In my opinion his Osteoarthritis condition has at least been aggravated severely by the nature of his employment with Ricegrowers Co-operative Ltd over the past 15 years where he has been constantly required to jump down from pallets on which he has loaded product.” He then continues with the comments about the fall set out earlier. In relation to the heading “Aggravation” Dr Isbister states “In my opinion his hip condition is consistent with having been aggravated and probably initiated by injuries which had occurred during his work with Ricegrowers Co-operative Ltd where he was required to lift heavy loads, climb on pallets and jump down from the packed load”.
I set out earlier Dr Nicholls’ view in relation to the nature and conditions of the Appellant’s work as a cause of his condition. I repeat it here for convenience:
“I note a suggestion has been made that work activities involving carrying heavy rice sacks and stepping or jumping down from pallets could have caused the problem. From a bio-mechanical point of view the forces transmitted across the hip with such activities is probably not as great as walking or engaging in moderate physical activity and therefore I do not believe that this type of work activity could be held responsible for the development or acceleration of the degenerative process. Rather this is a primary degenerative process to some degree at least, made more likely by the slight anatomical variant of dysplasia of the acetabulum” (page 2 of the report).
The specialists’ opinions were expressed in part on the basis of the work history they each record. As set out earlier, the work history each records differs from each other and from the account given by the Appellant in his statement, particularly in relation to the degree to which the Appellant’s work is mechanised. I consider that the opinion more likely to be correct is that based on a work history which more closely accords with the only direct evidence before me as the actual work history, being the Appellant’s statement. This is the report of Dr Nicholls, as Dr Isbister appears unaware of the use of a machine at all. Further, I consider Dr Nicholls’ report more likely to be correct because of his provision of medical reasons (the degree of force transmitted across the hip, slight dysplasia) for his opinion. Dr Isbister gives reasons, but they show an incorrect understanding of the Appellant’s work requirements since the introduction of the palletiser. Dr Kirwan’s opinion does not carry a great deal of weight in this context, because he does not set out the basis for his views (that not being the purpose of his report). I find that the nature and conditions of the Appellant’s work did not cause the arthritis in his left hip.
The third basis advanced is that the arthritis is a disease which is constitutional in origin but the Appellant’s employment has contributed to the aggravation of that disease (section 4(b)(ii) of the 1987 Act). In my view there is sufficient medical and other evidence to support this contention. I rely firstly on the opinion of Dr Kirwan. The qualifier “somewhat” does not disadvantage the Appellant’s case in relation to aggravation of pre-existing disease because it is sufficient if employment was “a contributing factor”. Dr Isbister expresses the view set out earlier that work has at least aggravated the arthritis (although that view is weakened by his incorrect appreciation of at least the current work requirements). Significantly, Dr Nicholls also concedes that work (or “minor injuries” –possibly intended to refer to the fall) could cause aggravation, although he describes it as only “temporary, symptomatic aggravation of hip pain” (page 2). He amplifies this in the later comment (possibly in relation to a question about aggravation) that “Work could only be considered likely produce temporary symptomatic aggravation and not deterioration of the underlying arthritic process”. This is consistent with the Appellant’s evidence in his statement that he suffered an increase in pain in his left leg “recently” (i.e recently to 2004) when he was engaged in manual stacking onto pallets of 40 kg bags of 70-80 tonnes of calf feed.
For the reasons expressed earlier I generally consider Dr Nicholls’ report to be more authoritative than that by Dr Isbister. It is all the more significant then, that although Dr Nicholls is of the opinion that work did not affect the underlying progress of the disease, he agrees it could make the symptoms worse. As discussed earlier this is sufficient to establish the contribution required by section 4.
For these reasons I conclude that the Appellant has established that he suffered an injury within the meaning of section 4(b) (ii) definition of “injury”, being the aggravation of the disease of osteoarthritis in his left hip, the aggravation being at least increased pain, and the nature and conditions of his employment being a contributing factor to that aggravation.
Section 9A 1987 Act: was employment a substantial contributing factor to the injury?
The next matter for the Appellant to establish is that the contribution made by his employment to the aggravation of his disease was a “substantial” one, as required by section 9A(1) of the 1987 Act. Sub-section (2) sets out “examples” of matters “to be taken into account” for the purpose of deciding this question. I will consider this issue by discussion of the matters set out in sub-section (2) on the basis not only of the medical evidence, but also of the uncontested evidence of the Appellant as to the requirements of his work and his experience of pain.
Paragraph (a) requires consideration of the time and place of the injury. The injury in this instance is the aggravation by the commencement or increase in pain in the left hip and leg. The Appellant’s evidence is that he first noticed “problems with respect to my left hip approximately 3-4 years ago” i.e. in 2000-2001. He says “I started feeling pain down my left leg between my groin and my left knee”. The Appellant says that the pain “occurred on a regular basis generally during the course of the day when I was at work”. This evidence is consistent with the notes produced by Narrandera Medical Practice which show he consulted a doctor on 19 May 2000 complaining of left groin pain for the last 6 months, which had been gradually worsening. The X ray taken at that time shows changes said to be consistent with “moderately severe degenerative arthritis”.
On the basis of this evidence I find that the Appellant was already suffering the disease of osteoarthritis in his left hip in 2000 but that it was asymptomatic until that time. The pain when it began occurred while engaging in work activities, which, on the uncontested evidence of the Appellant at that time required hand stacking of pallets “on a daily basis”. The Appellant was working full time, and had been engaged in this heavy manual work for the Respondent for 11 years at this point. There is no evidence, either in the Appellant’s statement, or in the medical evidence, of any other physical activity or trauma that may have caused him to begin suffering pain in 2000. I find that the “time and place of the injury” favour the conclusion that the Appellant’s work activities were a substantial contributing factor to the aggravation (being the onset of pain) of his disease.
If injury is regarded as increasing pain after initial onset then paragraph (a) “time and place of the injury” also favours the conclusion that the Appellant’s employment was a “substantial contributing factor” to his injury. It is not possible on the evidence before me to determine the progress of the underlying deterioration of the Appellant’s hip, because the later X rays (taken in 2002 and 2004) do not refer to the earlier. However, in relation to increasing symptoms, being pain, the Appellant’s evidence is that “I continued doing my normal duties however my hip continued to cause me pain on an increasing basis”. In the context, this refers to the period after 2000 and prior to May 2004. Again, there is no evidence of any other factor other than work activities to account for the increasing pain. The Appellant continued working full time and engaging in heavy physical work. He specifically recalls suffering increased pain while engaging in manual stacking of calf feed.
I consider the factors set out in paragraphs (b) (“the nature of the work performed and the particular tasks of that work”) and (c) (“the duration of the employment”) also favour the conclusion that the contribution made by work was “substantial”. On the uncontested evidence of the Appellant, his employment required heavy physical work throughout the day, on a daily basis, until the introduction of the palletiser, and continued to require manual stacking on occasion thereafter. He was engaged in heavy work from 1989. Dr Isbister considered that the nature of this work “severely” aggravated his condition. Although this opinion is weakened by the failure to take into account the introduction of mechanisation, it still carries some weight in relation to the past and occasions when manual stacking is still required. Dr Nicholls concedes that this work could cause aggravation of pain. Even if this aggravation was, as Dr Nicholls says, “temporary” and “symptomatic” given that the Appellant was engaged in this work full time then it is reasonable to conclude that this aggravation was a frequent occurrence, at least prior to the regular use of the palletiser. Again, there is no other source identified in the evidence for increasing pain. Dr Kirwan’s report expresses the contribution by the qualifier “somewhat”, which could suggest that the contribution was less than “substantial” but the report is not specifically directed to the degree of contribution, and it is not clear whether the qualifier refers to the origin of the condition or worsening symptoms. For these reasons I do not consider it sufficient to discount the significance of the factual relationship between work and pain attested to by the Appellant, and the other medical evidence.
The factors set out in paragraphs (d), (e) and (f) of sub-section 9A(2) all refer to the significance of factors other than the workplace in the occurrence of the “injury”. As stated, there is no evidence here to suggest that any activities outside the workplace (paragraph (f)) contributed to the injury, being the onset of and increase in pain. I find on the basis of the medical evidence that the Appellant’s constitutional risks made it likely that he would develop osteoarthritis at some point (paragraph (e)) but it is not possible to find that it was probable that the injury, being onset of or increase in pain, would have “happened anyway, at about the same time or at the same time of the worker’s life, if he…had not been at work or had not worked in that employment” (paragraph (d)). It is constructive to compare the facts in this case with those in Cant, and also in Mercer v ANZ Banking Group [2000] NSWCA 138 (‘Mercer’), the leading authority on section 9A, on which the Appellant also relies. In both those cases the worker suffered a constitutional weakness, in Cant a “vulnerable” back (Burke J. paragraph 28), in Mercer a weak knee. This is not dissimilar to the Appellant’s constitutional degenerative disease. However, the injuries in those cases both occurred while the worker was engaged in an isolated act, that occurred at work but was by no means the type of activity confined to the workplace. In this case, however, the Appellant was employed full time in very heavy work from 1989 that required repetitive manual stacking of heavy bags onto high pallets, many times a day until the introduction of some mechanisation and on occasion thereafter. The only evidence about pain is that he suffered it while engaged in this work. I find that it was not likely that osteoarthritis in his left hip would have become symptomatic at this same time in his life if he were not engaged in this work.
In find that the Appellant has suffered an aggravation of osteoarthritis in his left hip, being the onset of pain in 2000 and increased pain thereafter and that his employment was a contributing factor to that aggravation, and, further, that it was a substantial contributing factor.
Section 16 1987 Act
Section 16(1) of the 1987 Act provides that where an “injury” consists in the aggravation, acceleration, exacerbation or deterioration of a disease then:
“(a) the injury shall, for the purposes of this Act, be deemed to have happened-
(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”.
If “injury” is regarded as the onset of pain then this occurred in fact in 2000, but by virtue of section 16 the “injury” is deemed to have occurred at the time the compensation claim was made, being 21 July 2004, and so there is no issue here about late claim. The Respondent is on the facts the employer responsible under section 16(1)(b). The Respondent did not make any submissions to the contrary in relation to these two matters.
Section 60 1987 Act
The Appellant must also establish that hip replacement is “reasonably necessary” to succeed under section 60 of the 1987 Act. There is no dispute on the medical evidence on this point. I find that as a result of the “injury” received by the Appellant it is reasonably necessary that he undergo hip replacement surgery.
DECISION
The decision of the Arbitrator is revoked and the following decision substituted:
(1) The Respondent to pay the Appellant’s medical, hospital and related expenses pursuant to section 60 of the Workers Compensation Act 1987.
(2) The Respondent to pay the Appellant’s costs of the original proceedings.
COSTS
The Commission has the power to award costs on appeal (section 341 of the 1998 Act, as modified by section 345). The Appellant has been successful in this appeal. I consider that the Respondent should pay the Appellant’s costs of the appeal.
Ms Robyn Lansdowne
Acting Deputy President
17 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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