Marra v Siena Function Centre Pty Ltd - [2016] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Marra v Siena Function Centre Pty Ltd [2016] NSWWCCPD 44
APPELLANT:	Mario Marra
RESPONDENT:	Siena Function Centre Pty Ltd
INSURER:	CGU Workers Compensation (NSW) Pty Ltd
FILE NUMBER:	A1-7278/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	11 April 2016
DATE OF APPEAL DECISION:	12 September 2016
SUBJECT MATTER OF DECISION:	Entitlement to weekly benefits and medical expenses in respect of lumbar spine and right hip; whether these body parts injured as a result of a fall in which the left wrist was injured as a matter of common ground between the parties
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	NSW Compensation Lawyers
Respondent:	Moray and Agnew
ORDERS MADE ON APPEAL:	1. Leave to extend time to appeal is granted. 2. The Arbitrator’s decision of 11 April 2016 is confirmed. 3. Appeal dismissed.

INTRODUCTION AND BACKGROUND

This is an appeal from a determination of an Arbitrator dated 11 April 2016. Before the learned Arbitrator was a dispute about the extent of injury suffered by the appellant in the employ of the respondent on 21 May 2011. There was no dispute that on that day he suffered a fall on the tiled kitchen floor of the respondent’s premises. Nor was there dispute that in the fall he fractured his left wrist for which he was treated by Dr Chin, an orthopaedic surgeon. That treatment involved open reduction and internal fixation on 27 May 2011.
The dispute between the parties was about whether, in addition to the left wrist injury, the appellant also suffered injury to his lower back and right hip as a result of the fall.
The Arbitrator was not satisfied that the appellant had made out a connection between problems for which he subsequently had medical treatment and lost time from work in respect of his low back and right hip.

LEAVE

Monetary threshold and time

There is no dispute between the parties that the quantum in issue on the appeal satisfies the relevant monetary threshold under s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). There is no point taken about the timing of the appeal by the respondent pursuant to s 352(4).
The appeal was lodged on 13 May 2016, outside the 28 day period provided in s 352(4) of the 1998 Act. The appellant stated that the appeal had been filed within time. On 20 May 2016, the Registrar’s delegate issued a Direction directing the appellant to lodge an amended appeal application that, amongst other things, attaches:
“detailed reasons for the appeal Application being lodged out of time, full details of the arguments in favour of granting an extension of time for the making of an appeal, and the demonstrable and substantial injustice that losing the right to appeal would allegedly cause.”
On 27 May 2016, an amended appeal application was lodged. The amended appeal made an application for an extension of time. The appellant conceded that the appeal application was filed out of time.
The appellant stated that the reasons for the delay were twofold. The first reason for the delay was that attempts to secure a copy of the audio recording of the arbitration took some time, and after the recording was received some time was taken for the appellant’s solicitors to listen to and transcribe the arbitration hearing. A copy of the transcript prepared by the appellant’s solicitors was attached to the amended appeal. The appellant submitted that the second reason why the appeal was lodged outside of the 28 day period was that counsel who had been instructed to prepare the appeal “unfortunately had misdiarised the deadline”.
The appellant submitted that in view of the difficulties in obtaining transcripts, the diarisation error and the fact that the appeal was lodged three days out of time, an extension of time should be granted.
The appellant submitted that the respondent is not prejudiced in any way if an extension of time is granted. He said that should an extension of time not be granted, there would be substantial injustice for the appellant, who was in no way at fault for the delay and should not lose his right to appeal because of matters beyond his control.
The respondent filed its Notice of Opposition prior to receiving the amended appeal application. The respondent did not file any submissions addressing the issue of time.
Part 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
McHugh J considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted.
In Bryce v Department of Corrective Services [2009] NSWCA 188 Allsop P (as his Honour then was) (Beazley and Giles JJA agreeing), dealing with Pt 16 r 16.2(12) of the 2011 Rules, at [8] said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”
The principles stated in the authorities discussed above make it reasonable to grant leave for the appeal to proceed. It appears to be an administrative oversight and the respondent has not taken issue with it. In the circumstances it would be a substantial injustice if the appeal were not considered. Accordingly, I grant leave to extend time to appeal.

ON THE PAPERS

Both parties in their written submissions upon the appeal accepted that it was suitable for disposition “on the papers”, and my review of the evidence and submissions satisfies me that that is the appropriate course.

THE ARBITRATOR’S DECISION

The Arbitrator’s Certificate of Determination is in the following terms:
“The Commission determines:
1.       There will be an award for the respondent regarding the claims for injury to the lumbar spine and right lower extremity (hip).
2.       The respondent will pay the applicant’s s.60 expenses incurred with regard to the injury to the left wrist and scarring upon production of accounts, receipts and HIC documentation. There will be an award in favour of the respondent otherwise with regard to the claim for s.60 expenses.
3.       I remit this matter to the Registrar for referral to an AMS for a whole person assessment on the following bases:
·Date of Injury:                  21 May 2011
·Matters for assessment:     Left upper extremity (wrist)
Scarring
·Evidence
For the applicant:-
·ARD plus attached documents: Exhibit A
·Application to Admit Late Documents (‘ALDs’) dated 14 March 2016 – Exhibit B
For the respondent:-
·Reply plus attached documents: Exhibit 1”

THE ISSUES IN DISPUTE

The appellant alleges that the Arbitrator made an error of fact and submits as follows:
“A question of fact involves an inquiry into whether something happened or will happen, and is quite separate from any assertion as to its legal effect. A question of law involves the identification and interpretation of a norm which is usually of general application.
It is submitted that when the evidence is properly considered as a whole, that the Commission would be satisfied the applicant did sustain an injury to his lumbar spine and right hip as a consequence of a fall at work on 21 May 201 [sic, 2001], and that it was an error of fact for the Arbitrator to find otherwise.”

EVIDENCE AND SUBMISSIONS

At the arbitration the appellant relied upon his seven page statement dated 27 March 2015 and a large body of medical evidence made up of medical certificates, medical reports, clinical notes of general practitioners and radiological reports from treating doctors and medicolegal reports from an orthopaedic surgeon Dr Giblin, dated 15 January 2013, 6 November 2014 and 7 March 2016 respectively. For its part the respondent relied upon much of the same material from treating doctors and the medicolegal report of Dr Powell, orthopaedic surgeon, dated 27 March 2015.
At [10]–[36] of his reasons, the Arbitrator reviewed the evidence, both summarising it and making extensive reference to it, extracting relevant passages. In my opinion the Arbitrator’s reasons correctly reflect the evidence and what I am about to say should, if necessary, be read against the background of those paragraphs of the Arbitrator’s reasons. What follows will be no more than a condensation of the what the Arbitrator said and some brief comment upon it.
As put in his Application to Resolve a Dispute, the appellant’s case under PART 4 – Injury Details was that in his injury of 21 May 2011, described as slipping on a wet slippery floor and landing heavily on a tiled floor, he suffered injury to the left wrist, lumbar spine, right hip and scarring. The Arbitrator read this as amounting to a case of direct injury to the relevant parts of the body caused by the fall, and not upon the basis that the fall aggravated a condition of rheumatoid arthritis for which the appellant was subsequently treated: see in particular at [45]–[47] of the Arbitrator’s reasons. He, in effect, said that not only was no such case advanced, to the extent that there was evidence pointing in that direction it was not developed to any point which might be thought probative, and had not been met by the respondent. This was a proper approach in the circumstances and it is noteworthy that it is not challenged on this appeal. The argument advanced for the appellant on the appeal, to which I shall come in due course, does not support a case of aggravation of the arthritis and no application to lead additional or fresh evidence on the appeal to that effect was made.
The report of Dr Giblin dated 7 March 2016, Exhibit B, was admitted as a late document. It was in answer to the report of Dr Powell of 27 March 2015, and maintained Dr Giblin’s support for a causal connection between the appellant’s low back and hip problems and his fall, with an added opinion connecting the appellant’s low back trouble with his hip trouble. This was put in somewhat ambiguous or confusing terms in the second paragraph on page two of Dr Giblin’s report of 7 March 2016, dealing with Dr Powell’s answer to question six on page seven of his report as follows:
“In relation to the answer of question 6 on page 7, I have a variance with the view that the low back symptoms are rather directly or indirectly related to the index injury given the mechanism of injury, and the subsequent altered gait pattern from the hip symptoms.”
In his answer to question six in his report, Dr Powell expressed the view that the appellant’s hip and lower back symptoms were not consistent with the fall, and despite the way Dr Giblin expressed himself in the paragraph of Exhibit B set out above, I read it as varying from Dr Powell’s opinion that there is no causal connection upon the basis that the hip problem caused an altered gait which in turn caused back symptoms. Although Exhibit B was in evidence, it does not seem that the appellant’s case was pressed before the Arbitrator upon the basis of this opinion, and the Arbitrator did not deal with it, no doubt upon the basis that there was no necessity to do so. But in any event I can see no mention in the evidence of any significant alteration in the appellant’s gait by reason of his hip problems, although some alteration might readily be accepted, nor any other medical opinion along the lines of that of Dr Giblin.
Importantly, in the appellant’s written statement there is no mention of a permanent or significantly altered gait (as distinct from mention of the use of crutches and a walking stick for what appear to be limited periods of time: [7.15] and [7.16] of the statement of 27 March 2015). I cannot see any real indication of back pain following hip pain at some distance of time, and as is apparent from Dr Giblin’s opinion, the idea that there would be a relevant causal connection between the back pain because of the effects of the hip trouble depends upon the hip trouble itself being causally connected to the fall, a proposition the Arbitrator rejected. Once more, a causal connection of this type, even limited to the appellant’s back trouble, has not been advanced in argument upon this appeal nor any attempt made to support it by the tender of additional or fresh evidence. In the circumstances, there can be no criticism of the Arbitrator for not dealing in detail with this aspect of the case.
Returning to his decision, I think it can be sufficiently encapsulated, before considering the arguments specifically on appeal, by saying that he had close regard to the nature of the appellant’s complaints as recorded in contemporaneous records, and quite correctly gave greater weight to them and their implications than to later assertions on the part of the appellant and expressions of opinion on the part of some of the medical practitioners of a causal connection between the fall and the hip and back symptoms. The importance of contemporaneous statements and records is well recognised: see Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 per Lord Pearce in the para beginning “Credibility”.
In this regard the Arbitrator noted:
(a)That in his abovementioned evidentiary statement the appellant said that in July 2011 he experienced severe pain in his right hip “out of the blue”: at [7.15] of the 27 March 2015 statement. There was no suggestion of hip pain at any identified point earlier than that time.
(b)In his evidentiary statement he said that in December 2014 he experienced severe pain in his left hip: at [7.16] of the 27 March 2015 statement. Again no earlier point of left hip symptoms was identified.
(c)The treating general practitioner’s notes contained reference to the appellant’s fall but only as affecting his left wrist. The first complaint of back pain was made on 18 July 2011 – which as I have mentioned above does not put it as subsequent to the onset of hip trouble and related to any altered gait pattern – and there was no history of back pain or pain in any other part of the body having become apparent to the appellant as the effects of his left wrist fracture began to wear off.
The Arbitrator noted the comment by the appellant in his evidentiary statement (at [7.10]) that as a result of his injury he had hurt his left wrist, right hip and lumbar spine. The Arbitrator correctly charaterised this as “assertion”. It was an expression of ultimate opinion of a medical kind and could not be accorded any real weight.
The Arbitrator also noted the expressions of medical opinion that I adverted to briefly above to the effect that there was a causal connection between the fall and the back and hip trouble but as his reasons demonstrate, those expressions of opinion were made well after the event and the difficulty for the appellant is, to my mind, well illustrated at [25] of the Arbitrator’s reasons. The Arbitrator sets out an entry in the treating general practitioner’s notes (made by a locum), recording the history given on 2 September 2011, some months after the fall, of lower back pain and right hip and leg pain dating back to the fall. The locum, Dr Banares, seems to have appreciated the discrepancy between this history and the content of the earlier notes, because she concluded the entry of 2 September 2011 by saying:
“nothing in the work certificate that this was part of the work injury from last May.
he claimed he did not have back pain in the past; only after the accident.
no workcover created …
may need to sort this out with dr genua”. (as originally written)
Dr Genua seems to be the general practitioner whom the appellant usually saw. At [27] of the Arbitrator’s reasons, he recorded a subsequent note of a consultation the appellant had with Dr Genua on 7 October 2011, which set out a history contradicting the proposition that there was back or right [sic, right hip] pain following the fall and confirming that the first complaint of at least right hip pain was in July 2011.
I think it is fair to say upon review of the evidence before the Arbitrator that the case was presented to him as, and was correctly understood by him as, one involving an undoubtedly genuine fall and genuine injury to the appellant’s left wrist, but thereafter involving a not insignificant lapse of time, amounting to approximately two months, before the onset of symptoms in the low back and right hip. The onset of those symptoms was not supported by any recorded medical history or evidence from the appellant that as his wrist pain lessened he became conscious of pain in other parts of his body and the lapse of time between the fall and the onset of the hip and low back symptoms was not explained by expert medical evidence for the appellant so as to make good any sort of causal connection. Then there came the evidence of the appellant’s condition of rheumatoid arthritis which provided a medical explanation for his symptoms and which fitted chronologically with their onset. That the appellant’s later symptoms were not to be seen as a consequence of the fall but related to his arthritic condition was squarely the opinion of Dr Powell.
In all the circumstances I think the Arbitrator’s decision cannot be seen as unexpected or surprising. Rather it seems on the evidence and as reasoned to by him to be the expected and conventional one. Experience in litigation of this type teaches one that the lapse of a substantial period of time, amounting, as it does here, to approximately two months, between the trauma and the onset of symptoms in particular parts of the body casts grave doubt on any causal connection between the two and is likely to prompt medical practitioners to discount a connection and take the type of view arrived at by Dr Powell. In the absence of medical evidence showing how the causal connection could exist notwithstanding the delay, the opinion of Dr Powell emerges as being of a familiar kind, the acceptance of which strikes no jarring note.
From this review of the evidence before the Arbitrator and his decision it is necessary to move to the arguments on appeal.
The submissions made for the appellant impugning the Arbitrator’s decision as abovementioned do not embrace any notion of aggravation of the arthritic condition or of a connection between an altered gait owing to hip trouble and the low back symptoms. Rather the argument advanced at [9]–[25] of the written submission relies upon the content of the clinical notes and records etc. and points to such expressions of opinion as can be found in them supporting a causal connection between the fall and the hip and back trouble. The argument concludes at [25] by placing particular reliance on the absence of hip and back trouble prior to the fall and the absence of any other “supervening event”, which I take to be any episode of trauma affecting those parts of the body, between the time of the fall and the onset of the hip and back trouble. The last point, (iv), made in support of the causal connection is that the appellant “… has said that he felt pain to his lower back immediately after the fall.”

The submissions put for the respondent in opposition of the appeal are brief, occupying seven sub-paragraphs of [2.7] and [2.8], and can be summarised by saying that they contend that the Arbitrator’s decision was correct as given. Reference is made to the relevant decision of Roche DP in Raulston v Toll Pty Limited [2011] NSWWCCPD 25. It is a fair restatement of the respondent’s position to say that it submits that the decision of the Arbitrator should be seen as correct, but in any event, it was a decision of a factual kind not contaminated by any antecedent misdirection of law, and which was as a matter of fact well open on the evidence.
I will deal with these arguments in the following part of these reasons.

DISCUSSION AND FINDING

With all respect to the argument advanced for the appellant, I have no hesitation in saying that the learned Arbitrator’s decision was well open to him upon the evidence and that given the chronology of events, involving an absence of hip and back complaints for about two months after the fall and the alternative explanation in the form of the appellant’s arthritic condition, it is difficult to imagine any fact finder properly considering the evidence could have arrived at a different opinion.
I agree with the Arbitrator’s reasoning and conclusions, and I accept the submissions of the respondent that they display no error.
I hasten to add, however, that this is not to say that the appeal should be denigrated as wholly unmeritorious as distinct from a difficult one for the appellant. At a human level it is not hard to understand that he would come to a sincerely held view that there had to be a connection between his fall and his subsequent problems. The law itself, in emphasizing that legal causation is not the same as metaphysical or scientific causation (KooragangCement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), will in an appropriate case take account of the sequence of events, although not entirely without judicial demur. See for example in Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 (Forst) the differing comments of Rich ACJ at 563–4 and Dixon J at 569–570. But for present purposes Forst is instructive for another reason in relation to a sequential approach to legal cause and effect. Rich ACJ said (at 563):
“… I am greatly impressed by the sequence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore’s labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone: cf Partridge Jones and John Paton Limited v James [(1933) AC 501 at 505]. I do not see why a court should not begin its investigation i.e. before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology …”
What is to be taken from Forst is that a case in which there is no troublesome lapse of time between trauma and symptoms and no other pathology which needs to be brought to account, the sequence of events will be compelling and a party in the position of a respondent would need to be able to explain it away to avoid being visited with liability. But the evidence and the analysis of the Arbitrator conclusively show that that is not the position here.
The appeal should be dismissed.

DECISION

Leave to extend time to appeal is granted.
The Arbitrator’s decision of 11 April 2016 is confirmed.
Appeal dismissed.

Larry King SC
Acting Deputy President

12 September 2016