McCarthy v Department of Corrective Services
[2010] NSWWCCPD 7
•19 January 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Sydney Night Patrol & Inquiry Co Pty Ltd v Spasevski [2010] NSWWCCPD 7 | ||||
| APPELLANT: | Sydney Night Patrol & Inquiry Co Pty Ltd | ||||
| RESPONDENT: | Robert Spasevski | ||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-4535/09 | ||||
| ARBITRATOR: | Mr G McIlwaine | ||||
| DATE OF ARBITRATOR’S DECISION: | 12 October 2009 | ||||
| DATE OF APPEAL DECISION: | 19 January 2010 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; weight of evidence; section 74 of the Workplace Injury Management and Workers Compensation Act 1998; wage schedules; Part 15 Rule 15.5 of the Workers Compensation Commission Rules 2006 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | |||
| Respondent: | McGrath, Dicembre & Company | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 12 October 2009 is revoked and the following orders made: “1. Award for the Respondent. 2. No order as to costs.” | ||||
BACKGROUND
The respondent worker, Mr Spasevski, started work as a security officer with the appellant employer, Sydney Night Patrol & Inquiry Co Pty Ltd (‘Sydney Night Patrol’), at its SNP Security Airport Division in November 2002.
Mr Spasevski was involved in a car accident on 24 June 2004 while driving to his place of employment. The exact nature and extent of his injuries is disputed. He alleges he sustained a serious injury to his low back in the accident and he claims weekly compensation for total incapacity from 20 June 2007 to date and continuing, together with hospital and medical expenses in the sum of $927.30.
By letter dated 19 May 2008, Leigh Virtue & Associates, solicitors instructed by QBE Workers Compensation (NSW) Ltd (‘QBE’), disputed liability under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Whilst the letter purports to rely on seven different grounds, the essential dispute is whether Mr Spasevski injured his low back in the accident. It is not disputed that the accident occurred while Mr Spasevski was in the course of a periodic journey within the terms of the legislation.
The Commission listed the matter for conciliation and arbitration on 2 September 2009. On that day, counsel appeared for Mr Spasevski and a solicitor, Mr Macken, appeared for Sydney Night Patrol. The matter proceeded with the Arbitrator taking lengthy submissions from each side, but no oral evidence.
In a reserved decision delivered on 12 October 2009, the Arbitrator found that Mr Spasevski had injured his low back in the car accident and, as a result, was totally unfit for work from 22 June 2007 to date and continuing. The Commission issued a Certificate of Determination on 12 October 2009 in which, after setting out the Arbitrator’s findings, it recorded his orders as follows:
“ORDERS:
8.Respondent is to pay the applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $627.60 gross per week from 22 June 2007 to 21 December 2007.
9.Respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the maximum statutory rate for a single worker with no dependants from 22 December 2007 to date and continuing.
10.Respondent is to pay the expenses of the applicant under Section 60 of the Workers Compensation Act 1987.
11.The Respondent is to pay the applicant’s cost as agreed or assessed. The proceedings involved questions of legal advice and injury, together with a difficult factual situation. Directions for Production were issued and required detailed consideration by the legal representatives. The issues in my view were quite complex. The circumstances of these proceedings satisfy the criteria for the matter to be certified as complex and it is so certified. Accordingly, in any assessment or agreement it is to be taken into account that both parties are to receive a 20% uplift in their costs and that the matter is certified as complex.”
In an Appeal filed on 9 November 2009, Sydney Night Patrol seeks to challenge, among other things, the Arbitrator’s determination that Mr Spasevski injured his low back in the accident.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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.”
The appellant submits that the matter should not be determined on the papers but should be given an oral hearing because it involves complex issues that would benefit from such a hearing, and the transcript of the arbitration was not available at the time the appeal was filed. I do not accept that the appeal raises issues of such complexity that an oral hearing is required. After receiving the transcript, the appellant filed further submissions on 22 December 2009.
Mr Spasevski opposes the appeal being listed for an oral hearing and submits that the issues are not unusual and that the matter can be dealt with “on the papers”.
Having regard to Practice Directions 1 and 6, the detailed written submissions before me, and Mr Spasevsksi’s submission that the appeal can be determined on the papers, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing and that is the course I propose to adopt.
THE EVIDENCE
Lay evidence
Mr Spasevski’s evidence is set out in his statement of 7 June 2009. He is a single man and is currently 27 years of age. He completed a security licence course when he was 18 but had difficulty obtaining employment. He completed a second security course approximately 12 months later and then obtained employment with Sydney Night Patrol where he was employed as a screening officer at Sydney Airport.
On 24 June 2004, he was driving to work to commence his afternoon shift at 2pm. At about 1pm he was involved in a car accident when his vehicle collided with the rear of a vehicle that had stopped suddenly in front of him. Mr Spasevski states that his chest collided heavily with the steering wheel and his whole body “swung very forcefully back towards” his seat which caused a bracket to snap. He felt dizzy and short of breath. He also felt a tingling sensation “like pins and needles” throughout his whole body. He had difficulty getting out of his car. The police attended and his vehicle was towed away.
Mr Spasevski telephoned his supervisor at work, Ralph, and told him about the accident and that he had a lot of pain in his chest, back, and down his right leg. Mr Spasevski’s father picked him up after the accident and took him home.
When he arrived at home he felt severe pain in his chest area, right arm, low back and down the whole of the right side of his body. He spent the rest of the afternoon lying down.
The following day, Mr Spasevski saw his regular general practitioner, Dr Lee. He claims that he told Dr Lee he had pain in his chest area, down the whole of the right side of his body, his back and his neck. Dr Lee referred him for scans and certified him unfit for work. Mr Spasevski states that he was “ away from work from some time” and that he had absences due to his injuries for which he did not provide his employer with medical certificates.
The appellant terminated Mr Spasevski’s employment on 2 August 2004 because of unauthorised absences on 27, 29 and 30 July 2004 and because of his failure to provide a reasonable explanation for those absences. The termination letter also referred to excessive absenteeism, including previous unauthorised absences.
In November 2004, Mr Spasevski commenced employment as a security officer with Access Security. That job required Mr Spasevski to be on duty for 12-hour shifts performing general security patrol work at various shopping centres.
Mr Spasevski states that between ceasing work with Sydney Night Patrol and commencing with Access Security, he experienced constant pain in his right leg and right lower back area. His back felt tight and when he commenced with Access Security his back would tighten further after standing for a period or walking long distances. He did not consult his doctor, because he believed that the pain would go away. His mother massaged his leg and back with Dencorub and also applied Vicks.
Shortly after starting with Access Security, the pain in his back became worse and he was not able to stand for long periods or walk long distances without taking a break. He experienced shooting pains down his right leg from his back to his ankle. After a few weeks work with Access Security, he stopped wearing formal black shoes and started wearing “running type shoes” in the hope that that may assist in reducing his pain. The change of shoes did not help and the pain increased in intensity and he started taking two or three days off work at any given time. When he was at work he had to stop and stretch every 15 or 20 minutes because of pain in his right leg and because of his back tightening up. He was starting to walk with a slight limp. He provided Access Security with medical certificates for the periods when he was unable to work due to his pain.
Mr Spasevski stopped working with Access Security in or about February 2005 and he has not returned to any paid employment since that time. He states that he ceased work because of his inability to perform his duties as result of injuries sustained in the car accident. He says that he was prescribed Voltaren in approximately March 2005 and that by the winter of 2006 the pain was so severe that he would spend many days lying down.
Mr Spasevski states that he was unaware that he could make a claim for compensation (because the accident was his fault) until about mid 2007 when a family friend told him he could claim because the injury occurred on his way to work. Mr Spasevski made immediate arrangements to see a solicitor and completed a claim form on 12 June 2007. He claims that, given the serious nature of his injuries, had he been aware that he was entitled to make a claim, he would have lodged a claim as soon as possible after the accident.
Mr Spasevski denied having injured his back in any sports or other physical activities.
Medical evidence
Mr Spasevski sought treatment from his usual general practitioner, Dr Lee, at Georges Hall Medical Centre. He later also saw a Dr Tin at the same practice. Dr Lee issued the initial WorkCover certificate declaring Mr Spasevski to be unfit for work from 24 June until 28 June 2004 as a result of “multiple soft tissue injuries in [sic] chest (R) arm, (R) leg & neck”. This certificate is consistent with Dr Lee’s clinical notes, which confirm that Mr Spasevski attended on 25 June 2004 complaining of pain in his neck, right arm, chest, and right leg. On examination, Dr Lee noted tenderness and muscle spasm in the neck, slight bruising of the chest along the line of the seat belt, slight bruising of the right arm, and slight bruising of the right leg with muscle spasm and movement limited by pain.
Dr Lee certified Mr Spasevski to be fit for suitable duties from 29 June to 4 July 2004, but again unfit to work on 2 and 3 July 2004. Dr Lee certified Mr Spasevski to be fit for his pre-injury duties from 8 July 2004. He provided no further certificates until 27 March 2007 when he provided a Centrelink medical certificate certifying Mr Spasevski to be unfit from 27 March to 26 April 2007 as a result of low back pain that commenced on 1 March 2007.
Mr Spasevski attended on either Dr Lee or Dr Tin on numerous occasions after 25 June 2004, but the doctors’ notes make no reference to low back pain until 21 February 2005. The entry on that day records:
“lower back pain since last week from sports injury”
The doctor prescribed Voltaren gel and noted his impression as “strained muscles”.
On 12 January 2005, Mr Spasevski attended on either Dr Lee or Dr Tin complaining of pain and swelling in his left ankle for two or three days.
On 8 March 2005, Mr Spasevski saw Dr Lee and complained of having had pain in his right groin for one to two weeks. An ultrasound performed on that day revealed a “moderate size reducible indirect inguinal hernia in the right inguinal region”.
As the groin pain continued, Dr Tin referred the worker to Dr Greenberg, general surgeon. Dr Greenberg examined Mr Spasevski on 30 March 2005, but found no obvious hernia. At review on 26 April 2005, Dr Greeenberg again found no clinical evidence of hernia and he advised the worker to “return to activities at the Gym slowly”. Dr Greenberg’s provisional diagnosis was “acute growing strain”.
Mr Spasevski continued to see either Dr Lee or Dr Tin on numerous occasions throughout 2005 and 2006.
The doctors’ clinical notes make no reference to low back pain until 31 August 2006 when the following entry appears:
“pain – Rt side of lumbar region
radiating Rt leg
does weights.”
On examination, Mr Spasevski was tender at the right sacroiliac region. The doctor prescribed Voltaren.
Mr Spasevski again attended on his doctor in February 2007 complaining of pain in his right leg. His doctor referred him for a right ankle ultrasound. Dr Cooke performed the ultrasound on 5 February 2007. He reported on 6 February 2007 that he took a history that Mr Spasevski had persistent pain in his right lower limb for two weeks. The ultrasound revealed no soft tissue abnormality.
Mr Spasevski continued to complain of right ankle pain when he saw his doctor on 19 February 2007. He also complained of dizziness. The doctor noted that Mr Spasevski was slightly obese and a smoker.
Mr Spasevksi again attended on his local doctor on 23 February 2007 complaining of dizziness. He reported feeling better when he attended on 27 February 2007.
Mr Spasevski attended again on his local doctor on 9 March 2007. The notes record:
“severe lower back pain since yesterday”
On 17 March 2007, Mr Spasevski attended on either Dr Lee or Dr Tin complaining of low back pain radiating to his right leg. Dr Lee arranged for a lumbar x-ray, which revealed a suspicion of disc pathology at L4/5 and L5/S1. A CT scan arranged by Dr Tin on 20 March 2007 revealed diminished disc heights at L4/5 and L5/S1.
Dr Tin referred the worker for physiotherapy with Mr Hua. Mr Hua reported to Dr Tin on 28 March 2007 that the worker gave a history of “sudden onset lumbar and right leg pain from 1 ½ weeks ago” and of “past episodes of LBP following a MVA 4 years ago but never as severe as now”.
Dr Tin referred Mr Spasevski to Associate Professor Van Gelder, neurosurgeon, for assessment on 30 March 2007. In his report of 2 April 2007, Associate Professor Van Gelder stated:
“Thank you for referring Mr Spasevski who was seen on 30th March, 2007. As you know he injured his back two weeks ago and since then has had severe right leg pain. His leg feels weak with tingling. There is no numbness. When examined strength is intact in the leg. As you know his CT scan shows a large intervertebral disc herniation. The size of the disc herniation suggests that he is not going to do well with conservative treatment. I have referred him for a MRI scan of the lumbar spine. He is not suitable for working as a security guard for the next three months. I invited him to return to discuss the results of his scan.”
Professor Van Gelder reported on 14 June 2007 that the MRI scan showed disc degeneration at the lowest two levels and a large disc herniation on the right side at L5/S1 affecting the right S1 nerve root.
In a further report dated 27 September 2007, Associate Professor Van Gelder stated that Mr Spasevski continued to suffer with right sciatica, which made it difficult for any sustained walking or seating.
In a report dated 10 April 2008, Associate Professor Van Gelder stated that he reviewed Mr Spasevski on 19 February 2008. He noted that the worker continued to experience back pain with radiation into the right leg and, more recently, into his left leg. He added:
“Mr Spasevski believes his back and right leg pain has been present since his motor vehicle accident in 2004. At that time he sought medical treatment and had time off work. He has not really been successful at returning to work since then.
Mr Spasevki’s symptoms correlate with his known intervertebral disc herniation. His symptoms are likely to improve with a microdiscectomy operation but he has been unable to decide to do this since I first saw him in March 2007.”
Dr Tin reported to Dr Spasevski’s solicitors on 12 November 2007. The report confirms that Mr Spasevski only complained of pain in his neck, right arm, chest, and right leg on 25 June 2004 and he was diagnosed as having multiple soft tissue injuries. Dr Tin added:
“Mr Spasevski said that he was continuing to have trouble with lower back pain, which radiated to his right leg, ever since the accident. However, most of the time, he ignored it, as he didn’t realise the seriousness of the condition, and continued working and playing sports. Because he was still managing well with his daily physical activities, he did not think of getting medical advice.”
It is not known when Dr Tin took this history. The report continued by confirming that on 21 February 2005 Mr Spasevski said he had had (back) pain for about a week “after participating in some sports, although he did not give the specific injury history”.
Dr Tin’s report confirmed the development of right groin pain in March 2005 and the development of right-sided lumbar pain radiating to the right leg on 31 August 2006. The report added that Mr Spasevski “thought at the time that it might be due to the exercise that he had been doing to get fit”. His back pain settled somewhat with the rest, but he continued to have persistent right leg and ankle pain. In the middle of March 2007, Mr Spasevski again developed severe low back pain radiating to the right leg after getting out of the car. It was so painful that he was unable to sit, walk or lay down properly.
Under the heading “Examination”, Dr Tin recorded:
“At the time of the accident, the physical examination revealed tender muscle spasm in the cervical region, bruising over the chest consistent with a seatbelt injury, bruising and small laceration over the right arm, and bruising in the right leg. The examination in August 2006, when he presented with lower back pain, revealed tenderness in the right sacroiliac region with restricted lumbar movement in all directions except the left lateral flexion. There was no neurological deficit. When Mr Spasevski presented in March 2007 with the severe pain, examination revealed that he was in severe distress, he had difficulty changing posture, and there was a postural scoliosis of the lumber [sic] spine. The examination was incomplete due to his inability to move the spine or lie down on the examination table.”
After referring to the radiological investigations and Mr Spasevski’s treatment, Dr Tin concluded:
“Mr Spasevski has suffered from lumbar pain and right sciatica due to the disc herniation at the L5/S1 level, which is compromising the right S1 nerve root. According to the history given by him, the pain in the neck, right arm and right leg had started after the motor vehicle accident on 25.06.04, although he sough [sic] treatment specifically for his back pain on 21.02.05. Unfortunately he did not have the x-rays of his back until 2007. It is possible that the disc lesion could have been caused by the accident – however, it is difficult to say for sure. Mr Spasevski was unable to work for a few days after the accident, and then he went on to do light duties for a few days. Although he eventually went back to the pre-injury duties relatively shortly after the accident, he was missing a lot of days from work due to the pain, and he eventually quit the job in 2005. At present, he is unfit to do any activities which may strain his back (bending, squatting, heavy lifting, pushing, and pulling). The surgical intervention is the only definite treatment and he will benefit from it if undertaken sooner rather than later. After the operation, the prospect of his return to work will be considerably good.”
Associate Professor Van Gelder reported to Mr Spasevski’s solicitors on 2 October 2008. He recorded a history that Mr Spasevski was involved in a car accident in June 2004 and that “Immediately after the accident he was experiencing chest, neck, right leg, low back and arm pain”. He added, “In particular he was experiencing back and right leg pain”. He had some time off work before returning on light duties. He was not able to be effective at work and was taking time off because of his back pain and sciatica. He lost his job in August 2004 and returned to work in December 2004. His back and right leg worsened and he eventually lost his job in 2006 because of his back pain and sciatica. When most recently reviewed in July 2008, Mr Spasevski’s condition had worsened. He had left sciatica with pain radiating to the lateral thigh and ankle.
On the issue of causation, Associate Professor Van Gelder said:
“It is, of course, not possible for me to definitely conclude that these intervertebral disc injuries were caused by the motor vehicle accident that occurred three years before he was first seen by me. Mr Spasevski provided a history that is consistent with his acute intervertebral disc herniation being caused by or substantially contributed to by his motor vehicle accident in 2004. The head on collision with a forced flexion of his lumbar spine and possibly some degree of rotation is a mechanism consistent with his intervertebral disc injury. The momentum of his increased body mass is also likely to have been a contributing factor. Given that Mr Spasevski has two intervertebral disc injuries at a relatively young age it is possible to speculate that he may have some genetic or constitutional susceptibility to degenerative changes in the intervertebral disc annulus.”
THE ARBITRATOR’S REASONS
In a reserved Statement of Reasons delivered on 12 October 2009, the Arbitrator reviewed the evidence and concluded that:
(a) the general practitioners’ notes could not be held to be “a crucial element standing in the way of the acceptance of the version of events related by Mr Spasevski” because they were written in different handwriting;
(b) in order to accept the employer’s submissions, he would have to disregard or discount the following “objective factual matrix arising from the severity of the collision”, namely that the impact of the collision resulted in Mr Spasevski’s chest colliding with the steering wheel, a bracket in one of the seats snapped, the vehicle was towed away, and the police report described the accident as a “major traffic crash” and noted that Mr Spasevski had a “zero” blood alcohol level;
(c) Dr Tin’s report of the initial examination of Mr Spasevski provided support for the view that the impact of the collision was severe and was capable of causing a disc herniation. The most significant aspects upon which Dr Tin reported were the “bruising over the chest consistent with a seat belt injury” and “bruising in the right leg”;
(d) Mr Spasevski said he did not consult his general practitioner about his back problem because his mother was massaging his back and leg with Dencorub and Vicks and he believed the pain would go away;
(e) Mr Spasevski denied ever having been involved in any sports or other physical activities that caused an injury to his back;
(f) Associate Professor Van Gelder provided the most support for Mr Spasevski’s case;
(g) Dr Tin also provided support for Mr Spasevski’s case;
(h) Mr Spasevski stated he did not consult his general practitioner because he believed the pain would go away;
(i) he found Mr Spasevski’s evidence to be “genuine and persuasive”;
(j) given that the collision was a “major traffic crash”, and given the support Mr Spasevski had from his general practitioner and from Associate Professor Van Gelder, it was more likely than not that the worker’s disc herniation was causally connected to and resulted from the motor vehicle accident on 24 June 2004, and
(k) Dr Tin’s report put the clinical notes in context and “in many small individual ways supports the case for Mr Spasevski”. Where there were variations between the clinical notes and Dr Tin’s report, he accepted the report.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) his consideration of the evidence;
(b) respect of the determination of the critical issues as to the injury and causation;
(c) the assessment of Mr Spasevski’s probable earnings, and
(d) consideration of the issue of whether a claim had been made on Sydney Night Patrol in accordance with the requirements of the Act.
SUBMISSIONS, DISCUSSION AND FINDINGS
Sydney Night Patrol submits that:
(a) the Arbitrator erred in discounting the weight to be attached to the clinical notes produced by Drs Lee and Tin on the ground that the notes were written in different handwriting;
(b) the relative severity of the accident is not a relevant consideration to the determination of the issue in dispute, namely whether Mr Spasevski injured his low back in the collision;
(c) the Police Accident Report described the number of “victims” injured as “nil”, and that fact is of much greater significance;
(e) a proper consideration of contemporary medical evidence requires an analysis of the general practitioners’ clinical notes. Those notes demonstrate Mr Spasevski attended on his general practitioner on approximately four occasions between 28 June 2004 and 19 July 2004, but the notes record no complaints relating to the low back;
(f) when Mr Spasevski attended on his general practitioner on 21 January 2005 (almost eight months after the accident), the clinical notes refer to low back pain and a sports injury, and
(g) a proper consideration of the evidence (in particular the contemporaneous evidence in the clinical notes) leads to a finding that Mr Spasevski has not discharged the onus of proof relevant to the issues of injury and causation, as far as the alleged low back injury is concerned.
It is submitted on behalf of Mr Spasevski:
(a) even if the Arbitrator’s observation that the presence of different hand writing in the clinical notes is irrelevant, that does not assist in a consideration of the weight of the evidence;
(b) the Arbitrator concluded, in effect, that the general practitioners’ clinical notes were not an accurate notation of Mr Spasevski’s complaints and they were not sufficient to overcome the balance of evidence in favour of Mr Spasevski, namely the report of the general practitioner, the report of the treating specialist, the significance of the accident, Mr Spasevski’s own unchallenged evidence, and the absence of any medical evidence from Sydney Night Patrol;
(c) that the Police categorised the accident as a “major” traffic accident is significant, particularly in assessing whether the mechanism of trauma was likely to have caused the injury to the low back, as stated by Associate Professor Van Gelder;
(d) it is not conceded that the entry in the clinical notes said to be 21 February 2005 can be “accurately read as that date”. Even if it is accurate, it is adequately explained by Dr Tin who said in her report that the complaints were not associated with evidence of an injury, and Mr Spasevski’s evidence that he disputed having ever received a back injury as a consequence of a sporting injury, and
(e) in the absence of any medical evidence from Sydney Night Patrol, the Commission has to apply a higher standard of proof than that on the balance of probabilities if it were to accept Sydney Night Patrol’s submissions.
Mr Spasevski’s case is implausible and completely inconsistent with the objective contemporaneous evidence in his general practitioners’ clinical notes. The weight to be attached to those notes is not diminished because different doctors completed them. The question is whether the notes are accurate and complete. It is not suggested that they are not. Dr Tin’s report of 12 November 2007 repeats almost exactly the clinical note of 25 June 2004. It confirms that Mr Spasevski complained of pain in his neck, right arm, chest, and right leg. The report also confirms that the physical examination on 25 June 2004 revealed spasm in the cervical spine, bruising over the chest consistent with a seat belt injury, bruising and a small laceration over the right arm, and bruising in the right leg. The only reasonable conclusion from a consideration of the report and the notes is that the notes are accurate and that Mr Spasevski did not complain of low back symptoms to either Dr Lee or Dr Tin until 21 February 2005, about eight months after the car accident.
That the police described the accident as a “major traffic crash” is of limited, if any, relevance. It is not disputed that the accident occurred or that Mr Spasevski’s car was extensively damaged. Nor is it disputed that Mr Spasevski suffered a soft tissue injury to his neck, right arm, chest and right leg as result of the accident. The critical question is whether he injured his low back at that time. In determining this question the history of Mr Spasevski’s attendances on his general practitioners and the complaints recorded by them in their notes is of particular significance.
Mr Spasevski’s assertion that he did not complain about his low back symptoms to his general practitioner because he felt the pain would go away is implausible and unacceptable. It is also inconsistent with his evidence that he told Ralph he had a lot of pain in his “chest, back and down my right leg”. It is completely unbelievable to suggest that Mr Spasevski mentioned back pain to his supervisor, but did not mention it to his doctor because he believed it would go away.
The letter of termination from SNP Security states that Mr Spasevski was dismissed because of “unauthorized absences” on 27, 29 and 30 July 2004 and a failure to provide a reasonable explanation for those absences. Mr Spasevski has offered no explanation for those absences. Given that he had previously produced medical certificates certifying him unfit because of his car accident, it is completely illogical that he would not have seen his doctor for a certificate for time off because of his back, if that was a problem at that time.
Mr Spasevski attended on one or other of his general practitioners on five occasions between 25 June 2004 and 21 February 2005. The notes record that his condition from the car accident improved and, consistent with the medical certificate of 8 July 2004, that he had returned to normal duties. They make no reference to any low back symptoms or disability. The only reasonable conclusion is that Mr Spasevski did not have low back pain immediately after the car accident.
Mr Spasevski attended on his general practitioner on 12 January 2005 because of pain and swelling in his left ankle. The evidence of left ankle symptoms at this time is inconsistent with Mr Spasevski’s assertion in his statement that when he worked with Access Security (at the end of 2004 and beginning of 2005) he experienced a tightening in his back and “shooting pain”’ down his right leg to his ankle. It is highly unlikely that, if he experienced such symptoms at that time, he would not have mentioned it to one or other of his general practitioners.
The evidence does not support Mr Spasevski’s claim that he produced medical certificates to Access Security for time off because of pain from the car accident. Neither Dr Tin nor Dr Lee refers to such certificates and there are no other certificates in evidence. It is not suggested that Mr Spasevski produced certificates from a different medical practice. In the absence of corroborative medical evidence, I do not accept that Mr Spasevski ceased work for Access Security in about February 2005 because of his inability to complete his duties as a result of his injuries, as he now claims.
Dr Tin’s statement in the November 2007 report that Mr Spasevski had low back pain and right leg pain “since the accident” is patently and demonstrably false. Mr Spasevski was not reluctant to attend on his general practitioners and he did so on many occasions for things as minor as a cough (17 July 2005) or sunburn (22 December 2005). The doctors’ notes are detailed and comprehensive. Dr Tin’s report confirms the entry in the clinical notes on 21 February 2005, which refers to Mr Spasevski having had back pain for about a week after participating in some sports. In the light of this note, and Dr Tin’s report, Mr Spasevski’s statement that he has never been involved in any sports that caused him injuries is dubious.
Dr Tin’s support on the issue of causation falls short of the standard required to establish causation on the balance of probabilities. Dr Tin merely concluded that it was “possible that the disc lesion could have been caused by the accident” but it was difficult to say for sure. Therefore, Dr Tin’s report does not provide sufficient evidence to discharge the onus of proof.
Associate Professor Van Gelder’s evidence is dependent upon an acceptance of Mr Spasevski’s assertion that he had back and leg symptoms immediately after the car accident. That history is demonstrably false and, as a result, the weight to be attached to Associate Professor Van Gelder’s report is significantly diminished. Further, the Associate Professor did not have a history of Mr Spasevski developing low back pain in February 2005, nor did he have a history of the low back pain in August 2006. For these reasons, I do not accept Associate Professor Van Gelder’s conclusion that Mr Spasevski’s history was consistent with his disc herniation having being caused by or substantially contributed to by the car accident.
That Sydney Night Patrol did not tender any medical evidence is not decisive. There is no evidence that Sydney Night Patrol or QBE arranged for Mr Spasevski to be medically examined and no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference arises. Mr Spasevski carries the onus of proof and he has not discharged that onus.
Mr Spasevski’s case is further undermined by the report from Mr Hua dated 28 March 2007. That report recorded that Mr Spasevski suffered from “sudden onset of lumbar and right leg pain from 1 ½ weeks ago”. Whilst the report also referred to Mr Spasevski reporting past episodes of low back pain following his motor vehicle accident four years ago, that complaint is inconsistent with the clinical notes I have referred to above. Dr Hua’s history of sudden onset of lumbar and right leg pain one and a half weeks prior to the attendance in March 2007 is consistent with Associate Professor Van Gelder’s history in his report of 2 April 2007. In all, the picture painted is completely inconsistent with Mr Spasevski having injured his low back in the car accident in June 2004.
Given the inconsistencies between the general practitioners’ clinical notes and Mr Spasevski’s evidence, I am not satisfied that Mr Spasevski injured his low back in the car accident on 24 June 2004. I find Mr Spasevski’s evidence to be completely inconsistent with the objective contemporaneous evidence and totally implausible. I do not accept it.
In light of the above findings, it is not necessary for me to consider the other grounds of appeal.
OTHER MATTERS
The section 74 notice prepared by Mr Macken on behalf of QBE alleged, among other things, that:
“Your client has not complied with the requirements of the Legislation [so] far as the notification of injury and the claiming of compensation benefits is concerned.”
The notice added:
“In declining liability the sections of the Legislation on which we rely are Sections, 4, 9, 9A, 10, 33, 40 and 60 of the Workers Compensation Act 1987 and also sections 74, 254, 255, 260 and 261 of Workplace Injury Management and Workers Compensation Act 1998.”
The notice then identified, among other things, the following issues relevant to the dispute:
“…whether your client has satisfied the requirements of the Legislation so as to give rise to any entitlement to compensation and whether your client is otherwise precluded from receiving the payment of compensation benefits.”
The Commission has repeatedly held that broad-brush assertions of the kind set out above do not comply with section 74 of the 1998 Act (Fletcher International Exports Pty Ltd v Lottand anor [2009] NSWWCCPD 40 at [15]; Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137 at [6]; Gray v Busways Gosford EMP Pty Ltd [2009] NSWWCCPD 124 at [6]; Rinker Group Limited v Mackell [2008] NSWWCCPD 100; Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125). If an insurer disputes liability in respect of a claim, or any aspect of a claim, it is required to give the claimant proper notice of the dispute. The notice must be expressed in plain language and must clearly and succinctly identify the reason the insurer disputes liability and the issues relevant to the decision. A general assertion that an insurer relies upon one or more of the sections in the legislation is unacceptable.
It is also unacceptable for an insurer, or a solicitor acting for an insurer, to make a general allegation that a worker has not “satisfied the requirements of the Legislation so as to give rise to any entitlement of compensation” and that a worker “is otherwise precluded from receiving the payment of compensation benefits”. Such an allegation does not properly identify the issues in dispute and does not comply with section 74. The practice of referring to multiple sections of the legislation, regardless of their relevance to the particular claim, and of making generalised denials of entitlement to compensation is unacceptable and must cease.
Further, at the arbitration, Mr Macken objected to Mr Spasevski’s properly filed and served wage schedule. Notwithstanding that the Arbitrator had directed the parties’ attention to the question of “comparable wages” in a Direction dated 21 July 2009, Mr Macken did not file a wage schedule, but merely objected to the worker’s wage schedule on the day of the arbitration. In doing so, Mr Macken appears to have disregarded Part 15 Rule 15.5 of the Workers Compensation Commission Rules 2006 (‘the Rules’). So far as is relevant, that rule provides that:
“(b) if a party wishes to dispute the accuracy of any matter in the [wage] schedule, the party must lodge and serve with the first document lodged and served by the party in the proceedings, in addition to any documents required under rule 10.3 (1) to be lodged and served by the party, a schedule of the party’s allegations of the earnings,
(c) a matter not disputed by a party as provided in paragraph (b) is deemed to be admitted by the party.”
Given that Mr Macken had not complied with Rule 15.5, he was not entitled to object to Mr Spasevski’s wage schedule. The Rules require that, if a party wishes to dispute a claimant’s wage schedule, that party must file its own schedule. If it fails to do so then, unless the Commissioner otherwise orders, the claimant’s wage schedule is “deemed to be admitted”. That the employer did not file a wage schedule in compliance with the Rules is surprising.
I note that Mr Macken claims that wage records were forwarded to the Commission. Unfortunately, those records could not be located. It would have been of great assistance to the Commission if Mr Macken had obtained a copy of those records.
Parties are reminded that proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act), and the Commission is to act according to equity, good conscience and the substantial merits of the case (section 354(3) of the 1998 Act). The taking of every possible objection, regardless of merit, does not advance an employer’s position and is inconsistent with the express terms of the legislation.
So far as wage schedules are concerned, workers’ solicitors are reminded that employers have an obligation to provide wage records to a worker within 28 days of receiving a request from an injured worker (section 43(2) of the 1987 Act).
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [28]), I have concluded that Mr Spasevski did not injure his low back in the car accident on 24 June 2004 and that neither his low back condition nor his incapacity has resulted from that accident. It follows that the Arbitrator’s determination must be revoked and, as there is no other basis argued in support of the claim, there must be an award for the respondent.
DECISION
The Arbitrator’s determination of 12 October 2009 is revoked and the following orders made:
“1. Award for the Respondent.
2. No order as to costs.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
19 January 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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