McDonald v MW & JM Riddiford - [2014] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	McDonald v MW & JM Riddiford [2014] NSWWCCPD 27
APPELLANT:	Duane Russell McDonald
RESPONDENT:	MW & JM Riddiford
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-14722/12
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	9 December 2013
DATE OF APPEAL HEARING:	6 May 2014
DATE OF APPEAL DECISION:	13 May 2014
SUBJECT MATTER OF DECISION:	Disease provisions; ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987; failure to determine all issues in dispute; principles in Crisp v Chapman (1994) 10 NSWCCR 492 and Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 discussed
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Dodd, instructed by McCabe Partners Lawyers
Respondent:	Mr B Odling, instructed by Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. Save to the extent that the Arbitrator’s determination of 9 December 2013 relates to the alleged hearing loss injury, the alleged umbilical hernia, and the alleged injury under s 4(b)(ii) of the Workers Compensation Act 1987, which determinations are confirmed, that determination is revoked. 2. The claim relating to the appellant worker’s alleged disease injury under s 4(b)(i) of the Workers Compensation Act 1987 is remitted to a different Arbitrator for re-determination. 3. The respondent employers are to pay the appellant worker’s costs of the appeal, as agreed or assessed. 4. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

BACKGROUND

The appellant worker, Duane McDonald, is a retired shearer. He is currently 53 years old. He worked continuously as a shearer from 1976 until he stopped in 2002. Over the years up to 2002, Mr McDonald noticed increased pain in his neck, shoulders, elbows, wrists, back, knees and feet. He also noticed deafness and an umbilical hernia. He stopped shearing in 2002 because he could no longer put up with pain in various parts of his body, but made no claim for compensation.
At some time in or about 2008, Mr McDonald worked as a shearer for National Grazing Services (NGS), which was a trading name for Grazcos. At the last shed at which Mr McDonald worked in that year, he noticed that the pain in his knees, wrists, neck and back were getting worse and he was struggling to get going in the morning. Again, he made no claim for compensation in respect of this period of shearing.
Mr McDonald last worked as a shearer from 26 August 2010 to 1 September 2010, when he worked for the respondents to the appeal, MW and JM Riddiford. Through his solicitor, Mr McDonald claimed weekly compensation from the respondents in a letter dated 3 February 2012 and lump sum compensation in a letter dated 18 September 2012.
In an Application to Resolve a Dispute (the Application) filed in the Commission on 20 November 2012, Mr McDonald claimed weekly compensation from 2 September 2010 to date and continuing together with lump sum compensation for various body parts and for industrial deafness. The deemed date of injury was alleged to be 1 September 2010, being the alleged date of incapacity.
Under “Injury description” in Part 4 of the Application, the following appears:
“1) Neck strain injuries to the cervical spine with post traumatic stiffness with dysmetria and residual facet arthralgia and shoulder brachalgia [sic] and trapezial muscle strain and crepitus on neck rotation;
2) Back strain injury due to repetitive flexing and bending of the Applicant’s spine while shearing sheep over the years with post traumatic stiffness with marked post traumatic lumbar stiffness with dysmetria, residual erector spinae muscle spasm and lumbosacral facet arthralgia, more marked on the right side with right buttock sciatica;
3) Bilateral shoulder strain injuries more marked on the right where he has a drooping right shoulder and pain referred to the scapula as well as to the supraspinatus insertion. The Applicant has tenderness over the biceps groove in both shoulders and has post traumatic stiffness of the left shoulder, less marked than that on the right;
4) Mild post traumatic stiffness of the right elbow and a satisfactory range of motion of the left elbow today;
5) Post traumatic stiffness of the right wrist and right thumb with residual arthralgia. The Applicant has a satisfactory range of motion of his left wrist and thumb today;
6) Post traumatic subluxation of the Applicant [sic] right patella and retropatellar crepitus in both knees with stiffness in the knees more marked on the right. Clinically, the Applicant has arthritis in his right ankle and post traumatic stiffness in the ankle and subtalar joint where he had a previous bony injury to the right foot where [sic] has pes planus on standing.
7) Industrial Deafness – Binaural Hearing impairment”
The first six paragraphs above were taken verbatim from a report dated 14 August 2012 by Dr Dixon, orthopaedic surgeon, qualified by Mr McDonald’s solicitor.
Under “Describe how injury occurred” in Part 4 of the Application, the following appears:
“The Disease Provisions (ie ss 15 & 16 of Workers Compensation Act 1987)
Arising out of or during the course of the Applicant’s employment as a shearer, he has contracted degeneration of his neck, back, right and left legs, right and left shoulders, right and left, elbows, right wrist and hand, left hand and wrist, right and left knees, right and left feet, umbilical hernia and industrial deafness, such being a disease of such a nature as to be contracted by a gradual process to which such employment as a shearer was a substantial contributing factor.
For a number of years prior to the 01.09.2010, the Applicant was employed in the shearing industry and this type of employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and/or deterioration:
♦ Degeneration and strain of the back and neck
♦ Degeneration and strain of the right and left legs
♦ Degeneration and strain of the right and left shoulder
♦ Degeneration and strain of the right and left elbows
♦Degeneration and strain of the right and left hands and wrists
♦ Degeneration and strain of the right and left knees
♦ Degeneration and strain of the right and left feet
♦ Umbilical hernia
♦ Industrial deafness
The Respondent [sic] was the last employer of the Applicant in such employment to the nature of which the disease condition is and was due.”
The respondents disputed liability on the grounds that Mr McDonald had not sustained a workplace injury for which compensation is payable and that his injuries were not the result of his five days of work with them. They relied on evidence from Dr Watson, orthopaedic surgeon, that Mr McDonald’s pathology pre-dates “the incident of 01/09/2010” and that any temporary aggravation with the respondent had ceased. For reasons discussed below, this defence was largely misconceived.
In a reserved decision, delivered on 9 December 2013, the Arbitrator noted that counsel for Mr McDonald, Mr Dodd, relied only on s 15, that is, he argued that Mr McDonald’s injury was a disease which was contracted by him in the course of his employment as a shearer and to which his employment was a contributing factor (s 4(b)(i)). As such, Mr Dodd contended that, under s 15, compensation was payable by the respondents because they were the last employer who employed Mr McDonald “in employment to the nature of which the disease was due” (s 15(1)(b)). Mr Dodd did not argue that Mr McDonald’s incapacity had resulted from his shearing with the respondents.
However, Mr McDonald’s solicitor, Mr McCabe, in unsolicited written submissions filed after the conclusion of the arbitration, which the Arbitrator ultimately gave Mr McCabe leave to rely on and the respondents the opportunity to respond to, relied on ss 15 and 16. Section 16 applies where the injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease (s 4(b)(ii)).
Mr McCabe submitted that Mr McDonald’s case was “similar to” the matter of Brack v WK & BA Colless (No 18000/97, unreported, Compensation Court of NSW, Bishop CCJ, 31 July 1998), which was a s 4(b)(ii) case concerning a shearer who suffered an aggravation and/or deterioration of cervical and lumbar spondylosis. Based on this submission, which was inconsistent with the approach taken by Mr Dodd at the arbitration, the Arbitrator determined Mr McDonald’s claim under ss 4(b)(ii) and 16, noting (at [40]) that Mr McCabe’s submissions had changed “tack” from those given orally by Mr Dodd.
The Arbitrator referred to several authorities dealing with the disease provisions generally and said that the “overwhelming problem for [Mr McDonald] in applying these principles is that [Mr McDonald] produces no relevant factual or medical evidence” ([47]).
The Arbitrator distinguished Wilson v Kennedy & Kennedy t/as PJ & BM Kennedy [2006] NSWWCCPD 183, a case on which Mr Dodd had relied, on the ground that, in that case, there was “clear evidence of a deterioration of the applicant’s degenerative condition” ([47]). In contrast, however, the Arbitrator said that Mr McDonald produced no contemporaneous evidence linking the employment with the respondents to any injury suffered by him pursuant to s 4.
The Arbitrator accepted (at [48]) that Mr McDonald suffered from a range of disabilities to various body parts that were “no doubt causally connected to his work as a shearer between 1976 – 2002”, but Mr McDonald did not state that his work with the respondents rendered his well-established muscular-skeletal degenerative or arthritic condition “more grave or serious” and there was no contemporaneous nor expert evidence “saying anything of that kind” ([48]).
The Arbitrator said that the claim for the hernia was not supported by any evidence that it was caused or exacerbated by work with the respondents.
In respect of the hearing loss claim, the Arbitrator said there was no probative evidence of the tendencies, incidents and characteristics (of Mr McDonald’s employment with the respondents) to establish that the noise to which Mr McDonald was exposed (in that employment) could cause deafness. He said that the medical evidence on which Mr McDonald relied to support this part of the claim was “a generic one about shearing work”, which did not deal with the evidence of Mr McDonald’s work at the respondents’ premises.
The Arbitrator concluded (at [53]) that Mr McDonald had failed to discharged the “onus in proving injury” and he made an award for the respondents in respect of all claims.
Mr McDonald has appealed. He has challenged the whole of the Arbitrator’s determination, save for the finding in respect of the hernia.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     focusing on whether Mr McDonald suffered injury of an identifiable nature in the course of his employment with the respondents, as opposed to considering whether Mr McDonald had suffered injury as a result of all of his employment as a shearer;
(b)     not considering Mr McDonald’s case that his orthopaedic injuries were caused by the whole of his various employments as a shearer, and
(c)     considering the facts as to whether Mr McDonald’s employment with the respondents was “noisy”.
It is convenient to first set out the relevant legislation, and to then deal with the issues under two headings: “the disease injury” and “the hearing loss injury”.

LEGISLATION

The relevant provisions of the Workers Compensation Act 1987 (the 1987 Act), as in force as at 1 September 2010, were as follows:
“4 Definition of ‘injury’
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)     does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“15 Diseases of gradual process - employer liable, date of injury etc
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury - at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
“16 Aggravation etc of diseases - employer liable, date of injury etc
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”

THE DISEASE INJURY

Submissions

Mr Dodd submitted that the Arbitrator erred in not referring to or dealing with Mr McDonald’s case and by misdirecting himself by focusing only on whether there was evidence that Mr McDonald received a specific injury with the respondents.
Mr Dodd relied on, among other cases, Tame v Commonwealth CollieriesPty Ltd (1947) 47 SR (NSW) 269 (Tame), which refers to the risk of the worker being exposed to working conditions that could cause the disease and that it was not necessary that the presence or aggravation of the disease should be in some degree due to service with the last employer. Mr Dodd contended that the Arbitrator erred, at [48], when he looked at whether Mr McDonald’s employment with the respondents had made his condition “more grave or serious”, which approach was only relevant to a claim of an injury by aggravation under s 4(b)(ii).
In response to the respondents’ written submission that Tame was of limited relevance because it was decided before the introduction of s 9A, which requires that employment be a substantial contributing factor to an injury, Mr Dodd submitted that s 9A(1) expressly excludes “a disease injury” from its operation.
Counsel for the respondents, Mr Odling, who did not appear at the arbitration, submitted that there were good reasons why the Arbitrator proceeded under s 4(b)(ii). He said that Mr McDonald stopped work in 2002 because of all his “aches and pains” and that he had an incapacity at that time that forced him to stop shearing. Mr McDonald regarded, at that time, that he had a complete injury.
Therefore, Mr Odling contended, for Mr McDonald to succeed it had to be under s 4(b)(ii) because s 4(b)(i) does not apply against the respondents. He said that the evidence as a whole failed to establish any effect from the work with the respondents relevant to s 4(b)(ii). It was not enough to show that he had been a shearer and had aches and pains.
Mr Odling added, picking up on a point made during an exchange at the oral hearing of the appeal, that Mr McDonald had not established that, in respect of the conditions for which compensation was claimed, he suffered from a disease contracted in the course of his employment.

Discussion and findings

Mr Dodd argued the claim before the Arbitrator in a very specific way. He submitted that Mr McDonald’s case was “squarely based on s 15” (T14.21) and not on a s 16 aggravation. He agreed with the Arbitrator’s statement during submissions that all his “eggs” were in “the [s] 15 basket” (T15.3). That is, he ran the case as a s 4(b)(i) injury.
However, upon receiving further submissions from Mr McCabe, filed without leave after the conclusion of the arbitration, the Arbitrator believed that the submissions had “change[d] tack” ([40]) from those made by Mr Dodd. Though it was understandable why he formed that view, and why he therefore considered the s 4(b)(ii) argument, that did not relieve him from considering and determining the s 4(b)(i) argument advanced by Mr Dodd, which had not been abandoned.
Apart from a history recorded by Dr Watson that, as a result of shearing with the respondents, Mr McDonald “developed pain and the pain has continued in the right knee”, there is no other evidence that Mr McDonald suffered an increase in symptoms or an aggravation or exacerbation of his conditions while working for the respondents. That is no doubt why Mr Dodd did not rely on s 4(b)(ii).
It follows that the Arbitrator’s statement (at [47]) that there was “no evidence of a factual or medical nature” that Mr McDonald’s work with the respondents made his conditions more grave, more grievous or more serious was not strictly accurate. Dr Watson’s history provided some evidence that the work with the respondents caused an increase in Mr McDonald’s pain. Evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [75]).
However, Dr Watson’s history was not supported by Mr McDonald’s statement of 24 June 2013, or by any other evidence. Moreover, Mr Dodd did not rely on Dr Watson’s history and, as explained above, did not run the case as an aggravation injury under s 4(b)(ii). In these circumstances, it was open to the Arbitrator to determine, as he did, that the evidence did not support a conclusion that the work with the respondents had made Mr McDonald’s conditions “more grave, more grievous or more serious in their effects upon him” ([47]). The quoted words are from Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, a s 4(b)(ii) case. Thus, it is clear that the Arbitrator was addressing s 4(b)(ii) and not s 4(b)(i).
The Arbitrator took the same approach at [48] where he said that Mr McDonald did not state that the work with the respondents “rendered his well established muscular-skeletal degenerative or arthritic condition more grave or serious”. This statement was open on the evidence and was appropriate to dispose of Mr McCabe’s reliance on s 4(b)(ii). It involved no error and has disposed of Mr McDonald’s claim under s 4(b)(ii).
However, it is tolerably clear that, though Mr McCabe’s further submissions were unhelpful, and only served to confuse the situation, Mr McCabe never abandoned the s 4(b)(i) case argued by Mr Dodd. The Arbitrator failed to properly consider that case, but merely said (at [47]) that Mr McDonald produced “no contemporaneous evidence linking the employment with the respondent[s] to any injury suffered by [Mr McDonald] pursuant to section 4 of the 1987 Act”. This demonstrated a misunderstanding of the claim Mr Dodd pressed, which required a determination of whether Mr McDonald had suffered a s 4(b)(i) injury.
I do not accept Mr Odling’s submission that Mr McDonald regarded that he had a “complete injury” in 2002 and, therefore, the case had to proceed under s 4(b)(ii). I do not understand Mr Odling to have conceded that Mr McDonald suffered a disease injury under s 4(b)(i) in 2002. If that were so, and if Mr McDonald’s employment with the respondents was employment to the nature of which the disease was due, Mr McDonald must succeed.

I understand Mr Odling’s submission to mean that Mr McDonald had an incapacity in 2002 and, therefore, arguably, a complete cause of action at that time. That may well be so, but Mr McDonald did not bring a clam for compensation until 2012 and the disease provisions apply according to their terms. While there will be many cases where a worker suffers a s 4(b)(i) injury and, later, an aggravation of that injury under s 4(b)(ii), the present case has not been argued on that basis. Mr McDonald does not have to rely on s 4(b)(ii).
The Court of Appeal decision in Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 (Grate Lace) is instructive. In that case, the worker was a bricklayer who contracted a dermatological condition caused by exposure to an allergen in cement. His symptoms first appeared in January 1985 working as a bricklayer for Grate Lace. He was off work for a period and paid compensation (he had a “complete injury” at that time). He returned to work for Clover Bricklaying in June 1985 and was retrenched in August 1985. In that period, he still had dermatological symptoms but had no time off.
Theiss then employed the worker as a bricklayer from 11 September 1986 until 26 November 1986 when he stopped work because of dermatitis. His claim was initially accepted by Theiss and paid until 26 October 1987. He then worked for Commercial Enterprises on light duties involving no exposure to cement. The worker claimed compensation from Grate Lace, Clover Bricklaying and Theiss. The parties accepted that the dermatitis was a disease of such a nature to be contracted by a gradual process.
The first hearing was before a Commissioner of the former Compensation Court of NSW (the Court). The Commissioner found liability against the last employer, Theiss. On a review before a judge of the Court, that decision was reversed and liability was found against Grate Lace, the first employer. The reasoning adopted by the judge was similar to the reasoning in Mr Odling’s submissions before me. The judge said that the disease manifested itself in the employment with Grate Lace and, therefore, the incapacity must have commenced then because the worker was unfit for any work for a period and he was prevented from continuing in his employment without risk of acute disability if he was exposed to cement (see Sheller JA at 372).
The Court of Appeal unanimously restored the Commissioner’s decision. Kirby P (as his Honour then was) noted that the Act talks of an employment “to the nature of which the disease was due” (368D) and added:
“But I do not take that adjectival clause to have the consequence which Manser CCJ derived from it in this case. It is simply designed to excuse a completely irrelevant employment, e.g. a bricklayer temporarily working in a florist shop where there is no exposure to an allergen such as Dycromate, found in cement, which apparently triggered off the worker’s recurrent bouts of dermatitis which, in turn, occasioned his incapacity in this case.”
His Honour found that the mistake made by Manser CCJ was “in endeavouring to return to the assignment of liability according to a notion of true causation” (368G). His Honour continued at 369B:
“that approach overlooked the semi-arbitrary but very practical purposes of section 15 of the 1987 Act. That section obliged the Court to do what Commissioner Grayson in the initial hearing did, i.e. fix Theiss Watkins (Constructions) Pty Ltd (Theiss) with liability, as the last employer. That employer was no florist shop, but another employer in the bricklaying industry in whose employ the worker was exposed to the allergen which, once again, triggered off his dermatitis. It was therefore an employer which fell within the terms of section 15(1)(b) of the 1987 Act. It was the employer by whom compensation was payable.”
Sheller JA (with whom Gleeson CJ agreed) said, at 376F:
“if there is a later occurrence of incapacity and then a claim for weekly compensation for a period which starts thereafter, in my opinion, section 15(1)(b) applies to make the employer, which employed the worker in employment to the nature of which the disease was due, at the time of, or last before, the incapacity primarily liable.”
In the present case, Mr McDonald’s deemed date of injury is said to be 1 September 2010, the alleged date of his incapacity. Therefore, if he otherwise establishes that he has suffered a s 4(b)(i) injury, s 15(1)(b) applies to place primary liability on the employer who employed him in employment to the nature of which the disease was due, at the time of, or last before, the relevant incapacity. The respondents are that employer. The reference to “incapacity” in s 15(1) is a reference the incapacity for which compensation is claimed (GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 per Sheller JA (Priestley and Clarke JJA agreeing) at 196B). Therefore, in the circumstances of the present claim, the incapacity in 2002 is irrelevant.
However, the above general principles do not mean that Mr McDonald must succeed, merely that he is entitled to rely on s 4(b)(i) and is not forced to rely on s 4(b)(ii), as Mr Odling submitted on appeal and counsel for the respondents submitted at the arbitration.
As explained by Mahony AP (as his Honour then was) in Crisp v Chapman (1994) 10 NSWCCR 492 at 494G, to succeed with a claim under ss 4(b)(i) and 15, the following must be established:
(a)     that the worker “received” a disease;
(b)     that the disease was contracted by the worker in the course of employment, and
(c)     that the employment was a contributing factor.
In my view, the evidence presented in the present case falls well short of establishing the above matters.
When asked about the evidence in support of his claim under s 4(b)(i), Mr Dodd relied on the evidence from Dr Dixon, which was that Mr McDonald suffered the diagnoses set out at [5] above and that those conditions were causally related to the nature and conditions of Mr McDonald’s duties as a shearer. There are a number of problems with this submission.
Dr Dixon did not give evidence that satisfies the requirements in Crisp v Chapman. He diagnosed the condition in Mr McDonald’s neck, back and shoulders as “strain injuries”. That does not describe a disease contracted by Mr McDonald in the course of his employment as a shearer.
Mr Dodd submitted that there is no reason why a “strain injury” cannot be a disease. There will no doubt be cases where repeated strains over time will either cause a disease or, more often, the aggravation of a disease. Normally, however, a “strain injury”, as such, will be a personal injury under s 4(a) and, without more, it will not establish a disease injury under either s 4(b)(i) or (ii). This is consistent with Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 where Hodgson JA held (at 68]) that:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened.”
In respect of the right elbow, right wrist and right thumb, Dr Dixon merely described Mr McDonald’s symptoms, namely, post traumatic stiffness. That is not a disease. Dealing with Mr McDonald’s knees, Dr Dixon’s diagnosis was “Post traumatic subluxation of his right patella and retropatellar crepitus in both knees with stiffness”. Again, that was merely a description of Mr McDonald’s symptoms. Subluxation and stiffness are not diseases.
The MRI scan of Mr McDonald’s right knee on 22 April 2008 revealed a complex vertical tear of the body and posterior horn of the medial meniscus and grade three medial facet patellar chondromalacia with minor superficial fissuring. The evidence has not addressed if these findings are evidence of a disease of such a nature as to be contracted by a gradual process. While Dr Harbury, orthopaedic surgeon, took a history in October 2007 that Mr McDonald spent a long time, while shearing, in a semi crouch with his knees flexed and his feet and tibia internally rotated resting his weight on the animal through the patellae, he expressed no opinion on the matters necessary to establish a s 4(b)(i) injury.
As explained by Mahoney AP (at 496G–497A) in Crisp v Chapman, there is a difference between a disease and the symptoms of it. What s 4(b)(i) requires to be determined is when the disease was “contracted” and whether that was a time when the worker was “in the course of employment” (as a shearer). Dr Dixon did not address that issue. (While there may well be cases where the symptoms are the injury, for example, psychiatric diseases (SAS Trustee Corporation v Woollard [2014] NSWCA 75 per Bathurst CJ (Tobias AJA agreeing) at [67]), that is not usually the case and is definitely not so in the present matter.)
Dr Dixon referred to Mr McDonald having arthritis in his right ankle and post traumatic stiffness in the ankle and subtalar joint where he “had a previous bony injury to his right foot where has pes planus on standing”. While arthritis is a disease, Dr Dixon’s opinion suggests (though it is ambiguous) that it has resulted from “a previous bony injury”. That does not support a finding that the arthritis was contracted in the course of Mr McDonald’s employment or that it was a disease contracted by a gradual process.
Mr Dodd submitted that Dr Dixon’s statement that Mr McDonald’s “conditions are causally related to the nature and conditions of his duties as a shearer” established that the conditions are a disease. He argued that the Commission has held that the use of the term “nature and conditions of employment” is a reference to a disease injury.
I have been unable to find any Presidential decision to that effect. In Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35 and Inghams Enterprises Pty Ltd v Sok [2013] NSWWCCPD 39 (Sok) Deputy President O’Grady discussed the use of the expression “nature and conditions of employment”, but did not suggest that that term equates to a disease.
The Deputy President’s decision in Sok is consistent with Wyong Shire Council v Paterson [2005] NSWCA 74 at [38] where Giles JA (Hodgson JA and Brownie AJA agreeing) observed that the term “frank injury” means a specific occasion of injury, while a “nature and conditions” claim relies on the accumulated effect of a worker’s activities. However, his Honour added that these are “descriptions of mechanisms for suffering an injury”. They are not the injury. It follows that Dr Dixon’s reference to Mr McDonald’s conditions having been caused by the nature and conditions of his employment is of little, if any, relevance.
Dr Watson’s evidence provides no assistance on the Crisp v Chapman issues. That is mainly because he was not asked any relevant questions, but also because he took a history from Mr McDonald that is inconsistent with Mr McDonald’s evidence in his statement of 24 June 2013. Based on the history Mr McDonald gave him, namely, that his knee pain had increased when working for the respondents, Dr Watson essentially approached the case as an aggravation case under s 4(b)(ii).
When asked if Mr McDonald was suffering from any constitutional or degenerative disease, Dr Watson said that Mr McDonald presented with no x-rays but he appeared to have some degenerative changes and symptoms that could be directly related to constitutional degenerative changes. That answer, along with all of his other answers to the many questions the insurer put to him, was unhelpful.
Mr Dodd’s submission that s 9A excludes “a disease injury” was based on the wording of the current section, which was amended in 2012 by the Workers Compensation Legislation Amendment Act 2012. However, the amendment to s 9A, which introduced the passage on which Mr Dodd relied, only applies to injuries received on or after 19 June 2012 (cl 20 of Pt 19H of Sch 6 to the 1987 Act). As the deemed date of injury in the present matter is alleged to be 1 September 2010, s 9A applies in the form it took at that time.
It follows that s 9A does apply in the present matter and must be satisfied if Mr McDonald is to succeed. As the matter must be re-determined in any event, it is not necessary to address this issue further on appeal, save to say that, if evidence is called that satisfies the tests in Crisp v Chapman, it is difficult to see why s 9A would not be satisfied. This is not to say that, in a s 4(b)(i) case, Mr McDonald must establish that his employment with the last relevant employer (in this case, the respondents) was a substantial contributing factor to his injury. He does not. It is only s 16, which relates to s 4(b)(ii) injuries, that requires that 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 a s 4(b)(i) injury is established, you then turn to s 15(1) to determine the employer liable to pay the compensation. That employer (like the last employer in Grate Lace) may not have caused the injury, but will be liable to pay the compensation if it employed the worker “in employment to the nature of which the disease was due” (s 15(1)(b)). Before you get to that question, however, you must first determine the matters identified in Crisp v Chapman. That requires appropriate expert evidence that properly addresses the issues. In Crisp v Chapman that evidence consisted of oral evidence from two eminent neurosurgeons.

THE HEARING LOSS INJURY

Submissions

Mr Dodd conceded that, on this issue, the written submissions by the respondents on appeal were probably correct. Those submissions were that the Arbitrator was correct to find that the opinion of Dr Scoppa, an ear, nose and throat physician qualified by Mr McDonald’s solicitor, was “a generic opinion about shearing work and did not deal with evidence of [Mr McDonald’s] work at the Respondent’s [sic] premises”.

Discussion and findings

I am grateful for Mr Dodd’s concession, which was properly made.
Dr Scoppa based his opinion on Mr McDonald’s statement dated 12 September 2011. However, though Mr McDonald signed that statement on 12 September 2011, it was prepared in 2008 and dealt with Mr McDonald’s exposure to noise before he worked for the respondents in 2010. As a result, Dr Scoppa had no history of the noise to which Mr McDonald was exposed while working with the respondents and Dr Scoppa expressed no opinion about that work.
It follows that the Arbitrator was correct to find that Dr Scoppa’s opinion was a generic one that did not deal with the evidence about Mr McDonald’s work with the respondents.

CONCLUSION

The argument that the Arbitrator erred in failing to consider the whole of Mr McDonald’s employment as a shearer, and therefore failed to properly determine the alleged s 4(b)(i) injury, must succeed. In view of the state of the evidence, that issue must be re-determined before another Arbitrator and the matter will be remitted for that purpose. For the avoidance of doubt, none of the Arbitrator’s findings relating to the alleged disease injury, so far as they might be thought to relate to s 4(b)(i), remain on foot and that issue must be re-determined anew. The Arbitrator’s finding that Mr McDonald suffered no s 4(b)(ii) injury is confirmed. The Arbitrator’s finding with respect to the hearing loss claim is also confirmed and it is not open to argue that claim again.
While the evidence in this case was unsatisfactory, so too was the s 74 notice relied on by the insurer. Though it disputed liability for the claim, which put Mr McDonald to proof of the matters in s 4(b)(i), it did so on the misguided ground that Mr McDonald had to prove that his employment with the respondents caused his incapacity. In other words, it looked to true causation. That is exactly the approach the Court of Appeal rejected in Grate Lace. An amended s 74 notice should be filed properly identifying the issues in dispute in accordance with the correct legal principles.

DECISION

Save to the extent that the Arbitrator’s determination of 9 December 2013 relates to the alleged hearing loss injury, the alleged umbilical hernia, and the alleged injury under s 4(b)(ii) of the Workers Compensation Act 1987, which determinations are confirmed, that determination is revoked.
The claim relating to the appellant worker’s alleged disease injury under s 4(b)(i) of the Workers Compensation Act 1987 is remitted to a different Arbitrator for re-determination.

COSTS

The respondent employers are to pay the appellant worker’s costs of the appeal, as agreed or assessed.
Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

Bill Roche
Deputy President

13 May 2014

I, KATHRYN CAMP, 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