Midpart Pty Ltd t/as McDonalds Forster v Great Lakes Aggregates Pty Ltd
[2007] NSWWCCPD 203
•2 October 2007
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision confirmed on Appeal: Cook v Midpart Pty Ltd t/as McDonalds Forster & Anor [2008] NSWCA 151; (2008) 6 DDCR 316 | |||||
| CITATION: | Midpart Pty Ltd t/as McDonalds Forster v Great Lakes Aggregates Pty Ltd & Anor [2007] NSWWCCPD 203 | ||||
| APPELLANT: | Midpart Pty Ltd t/as McDonalds Forster | ||||
| FIRST RESPONDENT: | Great Lakes Aggregates Pty Ltd | ||||
| SECOND RESPONDENT: | Geoffrey Gordon Cook | ||||
| INSURERS: | QBE Workers Compensation (NSW) Ltd (Appellant) Allianz Australia Workers Compensation (NSW) Ltd (First Respondent) | ||||
| FILE NUMBER: | WCC1242-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 4 May 2007 | ||||
| DATE OF APPEAL DECISION: | 2 October 2007 | ||||
| SUBJECT MATTER OF DECISION: | Injury; aggravation of existing condition; deemed date of injury; weight of evidence. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Robin Handley | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Moray & Agnew | |||
| 1st Respondent: | Goldbergs Lawyers | ||||
| 2nd Respondent: | Stacks / Forster | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 4 May 2007 is revoked and the following decision is substituted: | ||||
| “1. Award for the Respondents. | |||||
| 2. No order as to costs.” | |||||
| There is no order as to the costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
On 1 June 2007, Midpart Pty Ltd t/as McDonalds Forster (‘the Appellant’ – ‘Midpart’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 4 May 2007. The Appellant’s workers compensation insurer is QBE Workers Compensation (NSW) Ltd (‘QBE’). The First Respondent in the appeal is Great Lakes Aggregates Pty Ltd (‘Great Lakes Aggregates’) whose workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’). The Second Respondent in the appeal is Geoffrey Cook.
Mr Cook was born on 25 July 1947 and is aged 60. He claims to have suffered injuries or to have materially aggravated injuries to both wrists and hands on 1 May 1999 as a result of the nature and conditions of his employment as a maintenance fitter with Great Lakes Aggregates, and to have materially aggravated those injuries to his wrists and hands on 24 September 2004 as a result of the nature and conditions of his employment as a cleaner with Midpart.
Mr Cook ceased work with Great Lakes Aggregates in about July 1999. When Allianz ceased paying him weekly compensation in August 2001, he commenced proceedings against Great Lakes Aggregates in the Compensation Court of NSW. These proceedings were settled pursuant to Short Minutes and an Award of the Court dated 9 July 2002, whereby Great Lakes Aggregates agreed to pay:
(1) weekly compensation to Mr Cook of $200 from 8 August 2001 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’),
(2) lump sum compensation to Mr Cook pursuant to section 66 of the 1987 Act, (a) $7,000 in respect of a 10% permanent loss of efficient use of his right hand after a 50% reduction pursuant to section 68A (reduction for previous injury or pre-existing condition or abnormality), and (b) $6,500 in respect of a 10% permanent loss of efficient use of his left hand after a 50% reduction pursuant to section 68A,
(3) compensation of $10,000 to Mr Cook pursuant to section 67 of the 1987 Act in respect of pain and suffering,
(4) Mr Cook’s section 60 medical expenses upon production of accounts or receipts, and
(5) Mr Cook’s costs and disbursements as agreed or assessed.
At the time of the Award, Mr Cook was working as a part-time cleaner with Tempo Cleaning Services (‘Tempo’), in whose employment he remained until commencing similar part-time cleaning work with Midpart at McDonalds restaurant at Forster in about July 2003. Following a review of Mr Cook’s condition on 24 September 2004, his local doctor, Dr P Dobell-Brown, issued a medical certificate stating that Mr Cook was unfit to work from 29 September 2004 to 29 October 2004. Dr Dobell-Brown subsequently issued further certificates to the same effect. Mr Cook has not worked since.
On 13 October 2004, Mr Cook’s solicitors notified Great Lakes Aggregates of his claim for a variation of the Compensation Court award of weekly compensation on the basis that Mr Cook was totally incapacitated for work. On 16 November 2005, Mr Cook’s solicitors lodged a claim with Midpart for weekly compensation from 24 September 2004 to date and continuing. Both employers’ insurers denied liability.
On 23 February 2007, Mr Cook lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of his claim for weekly compensation. On 2 April 2007, the Arbitrator conducted a teleconference with the parties. On 20 April 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing. On 4 May 2007, the Arbitrator made his decision in the terms set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 May 2007, records the Arbitrator’s orders as follows:
“1. The Applicant did receive an injury arising out of his employment with the Second Respondent [Midpart].
2. The Applicant’s employment with the Second Respondent aggravated, accelerated and exacerbated a disease which the Applicant had contracted in the course of his employment with the First Respondent [Great Lakes Aggregates].
3. The weekly amount that the Applicant would have been earning but for the injury is the sum of $330.00 per week.
4. The amount that the Applicant is able to earn in suitable employment is nil.
5. There are no matters that call for the exercise of my discretion and accordingly I make an award that the Second Respondent [Midpart] pays the Applicant weekly payments of compensation at the rate of $330.00 per week from 29th April 2004.
6. The Second Respondent [Midpart] is to pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for his decision, the Arbitrator said, at paragraph 46:
“The Applicant’s evidence convinces me that it was employment with the Second Respondent that aggravated, accelerated and exacerbated the injury to his wrists and hands suffered in the course of his employment with the First Respondent.”
The Arbitrator found, at paragraph 47, that Mr Cook’s employment with Midpart:
“... in which he was earning $330.00 per week was the full extent of his then capacity for employment. The exacerbation of the Applicant’s condition of the hands and wrists (half of which was due to constitutional factors) was caused by his employment with the Second Respondent.
48. Accordingly pursuant to section 16(1)(b) the Second Respondent is liable by [sic] the employer who last employed the Applicant in employment which was a substantial contributing factor to the acceleration, exacerbation or deterioration of the condition of his hands and wrists.”
The figure of $330.00 per week was agreed by the parties early in the arbitration hearing and was based on Mr Cook’s average earnings during the period of his employment with Midpart from July 2003 to February 2004 (transcript p 2).
The Arbitrator found that while Mr Cook was partially incapacitated for work at the commencement of his employment with Midpart, retaining a capacity to earn of $330.00 per week in suitable employment, “his employment with the Second Respondent [Midpart] has taken away all that remaining capacity, to the extent that he remains totally incapacitated” (paragraph 51), and his capacity to earn in suitable employment is now nil. The Arbitrator found that Mr Cook was still partially incapacitated for work as a result of the injuries suffered in the course of his employment with Great Lakes Aggregates, but the evidence before him did not justify any variation in the Compensation Court award of $200.00 per week (paragraph 52).
ISSUES IN DISPUTE
The grounds of appeal identified by the Appellant are as follows:
(1) the Arbitrator erred in law in finding an injury arising out of the course of Mr Cook’s employment with Midpart;
(2) the Arbitrator erred in law in deeming a date of injury as being the last date of employment with Midpart in circumstances where the deemed date of injury ought properly have been determined as being the first date of incapacity, 8 August 2001;
(3) the Arbitrator erred in law in finding Mr Cook’s employment with Midpart was a substantial contributing factor to any injury including the aggravation, acceleration, exacerbation of a disease which the Arbitrator had concurrently found to have been contracted in the employment of Great Lakes Aggregates;
(4) the Arbitrator failed to base his decision on logically probative evidence in that he:(a) failed to have regard to the proper weight of evidence;
(b) based his findings on incorrect assumptions with respect to the facts and findings,
(c) incorrectly deemed dates of injury pursuant to s 15 and/or section 16 of the 1987 Act, and
(d) based his findings on an incorrect assumption with respect to the facts having accepted Mr Cook’s evidence with respect to the light nature of his work with Midpart.
The parties’ submissions are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
None of the parties sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and at least 20% of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The Appellant
While the Appellant has clearly identified its grounds of appeal, set out above, its submissions are not addressed to each ground in turn, but instead comprise a more general discussion of the Arbitrator’s Statement of Reasons pointing to alleged errors of law and fact. I have not, therefore, found it possible to separate out the Appellant’s submissions with regard to each ground of appeal.
The Appellant does not contest the Arbitrator’s finding that Mr Cook is now totally incapacitated for work. It submits that the Arbitrator erred in law by finding that although there was one injury, there were two incapacities: one as a result of his employment with Great Lakes Aggregates, established and agreed as running from 8 August 2001, and the other as a consequence of the aggravation of the disease (originally caused by Great Lakes Aggregates) in the course of his employment with Midpart. The Appellant submits there is no evidence to support such a finding. The primary task of the Arbitrator was to determine the cause of Mr Cook’s incapacity. Mr Cook’s evidence was that his condition deteriorated from the day he left Great Lakes Aggregates’ employment, whereas “[t]he Arbitrator appears to have determined in effect two injuries giving rise to two separate incapacities” (submissions paragraph 35).
The Appellant submits, in the alternative, that given the Arbitrator’s finding that the incapacity results from a disease, sections 15(1)(a) and 16(1)(a) of the 1987 Act provide that the injury is deemed to have happened at the time of the worker’s incapacity or at the time the worker makes a claim for compensation with respect to injury. In accordance with sections 15(1)(b) and 16(1)(b), compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due (section 15(1)(b)), or who last employed the worker in employment that was a substantial contributing factor to an aggravation, acceleration, exacerbation or deterioration (section 16(1)(b)).
The Appellant submits that for the purposes of a weekly compensation claim, the date of injury is deemed to be the date that incapacity commences: Stone v Stannard Launch Services [2004] NSWCA 277, at paragraph 37. In Mr Cook’s case, there was agreement between Mr Cook and Great Lakes Aggregates that the incapacity commenced on 8 August 2001 and continued throughout his employment with Tempo into his employment with Midpart. Having made the finding that the injury is of the nature of a disease, the Arbitrator could not then seek to apportion liability.
The First Respondent (Great Lakes Aggregates)
The First Respondent rejects the Appellant’s grounds of appeal. It submits that the Short Minutes dated 9 July 2002 recognise that Mr Cook was suffering from a disease, namely a constitutional degenerative condition, which was aggravated by his employment with Great Lakes Aggregates, and that, at the time, Mr Cook was only partially incapacitated for work as a result of his employment with Great Lakes Aggregates. The First Respondent submits that Mr Cook has not been employed with Great Lakes Aggregates since July 1999, so that any further loss of earning capacity has to be due to some natural progression of Mr Cook’s constitutional degenerative disease or some further aggravation of that disease while in the employment of Tempo or Midpart.
The First Respondent noted that in giving oral evidence, Mr Cook said his condition was gradually deteriorating while working for Midpart and that his work was aggravating his condition. It was open to the Arbitrator to find, on the evidence, that while Mr Cook suffers from one condition, that condition was aggravated by two different periods of employment. With regard to the medical evidence, weight should be given to the reports of Dr John Davis, Injury Management Consultant, who examined Mr Cook in respect of both sets of proceedings. Dr Davis found that Mr Cook was suffering an increasing degree of symptomology, particularly relating to arthritic changes which had been aggravated by the nature and conditions of his employment as a cleaner with both Tempo and Midpart.
The First Respondent submits that, on the evidence, it was open to the Arbitrator to find that employment with Midpart further aggravated Mr Cook’s disease such that there were two partial incapacities which lead to Mr Cook being totally incapacitated. In the case of a later occurrence of incapacity, the last employer is liable pursuant to sections 15 and 16: Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365.
Mr Cook
Mr Cook’s counsel submits the evidence supported a finding pursuant to section 16 of the 1987 Act that Mr Cook’s employment with Midpart aggravated, accelerated and exacerbated a ‘disease’ which Mr Cook contracted in the course of his employment with Great Lakes Aggregates. The deemed date of injury here was the date Mr Cook left Midpart’s employment due to the increase in his symptoms and the aggravation of his condition caused by the work performed there. From that date, when the Arbitrator found Mr Cook was totally incapacitated for work, his residual earning capacity was reduced to nil.
Mr Cook’s counsel submits it is possible for there to be multiple dates of injury, as separate injuries are deemed to have happened upon the dates of incapacity as determined by sections 15 and 16. Mr Cook’s first injury, which falls under the section 15 disease provision, was that sustained in his employment with Great Lakes Aggregates, resulting in a partial incapacity; his second injury, which falls under section 16 (the aggravation etc of a disease), sustained in his employment with Midpart, took away Mr Cook’s residual capacity to earn.
Counsel submits that the relevant question in relation to Midpart was whether there was an aggravation, acceleration, exacerbation or deterioration of Mr Cook’s disease (section 4 (b)(ii)) to which Mr Cook’s employment with Midpart was a substantial contributing factor (section 9A).
EVIDENCE, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Appellant must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
The evidence of the Short Minutes dated 9 July 2002, and the Award of Judge Truss of the Compensation Court of NSW dated 9 July 2002, made in accordance with those Short Minutes, indicates that the parties to those proceedings (Mr Cook and Great Lakes Aggregates) agreed that Mr Cook was suffering from a pre-existing condition.
Mr Cook suffers from osteoarthritis affecting the joints of his hands, and there seems to be no dispute that this is a constitutional degenerative condition. He also suffers from bilateral carpal tunnel syndrome and bilateral Dupuytren’s contracture. He had surgical release of the right carpal tunnel in December 1999. There is disagreement about whether the development of bilateral carpal tunnel syndrome and bilateral Dupuytren’s contracture can be related to a person’s employment. Dr Murray Stapleton, Hand, Plastic & Reconstructive Surgeon, in a report dated 16 December 2005, expressed the view that they are unrelated to “occupation”, a view also expressed by Dr FJ Harvey, Orthopaedic Surgeon, in a report dated 11 February 2005. By contrast, Dr John Davis, Injury Management Consultant, in a report dated 12 June 2006, accepted there is, in certain cases, a clear correlation between the nature of a person’s work and the appearance of Dupuytren’s contracture.
Dr John Graham, Occupational Physician, in a report dated 31 January 2006, expressed the opinion that the nature and conditions of Mr Cook’s employment as a fitter “would have made a contribution to the osteoarthritis of the hands and consequently the carpal tunnel syndrome”. Dr Alan Hopcroft, Surgeon, in a report dated 4 January 2001, prepared for the original Compensation Court proceedings, expressed the view that Mr Cook’s carpal tunnel syndrome was “the result of the heavy manual work” performed by Mr Cook, aggravated by the fact that he had been developing bilateral Dupuytren’s contracture for many years. Dr Bruce White, Orthopaedic Surgeon, in a report dated 14 December 2000, said Mr Cook’s developing carpal tunnel syndrome was directly related to his work.
Whilst there is disagreement about the genesis of both Mr Cook’s bilateral carpal tunnel syndrome and bilateral Dupuytren’s contracture, it would appear that these and the osteoarthritis affecting Mr Cook’s hands are ‘diseases’. There seems to be acceptance that the osteoarthritis can be aggravated by activity, although there appears to be some disagreement about this in the case of the other two conditions. I note Dr Davis’ comment, in his report dated 12 June 2006, and remembering that he also examined and prepared a report on Mr Cook for the original proceedings in the Compensation Court:
“Such injuries were present when I examined him earlier in 2001, although he is now suffering with increasing degree of symptomatology, particularly relating to the arthritic changes which have been aggravated as a result of the nature and conditions of his employment as a cleaner with both Tempo and subsequently at McDonalds.”
On the other hand, Dr Graham, who also examined and prepared a report on Mr Cook for the earlier proceedings, in his later report dated 31 January 2006, expressed his opinion that the three conditions affecting Mr Cook were of a mild nature, and said that “[t]here is no evidence that any of the above conditions have significantly progressed since I last saw Mr Cook”. Dr Graham noted that Mr Cook’s more recent employment has been of a substantially lighter character and expressed the opinion that “his subsequent employment has not been a substantial contributing factor to the above conditions”.
Mr Cook gave oral evidence at the hearing. In relation to his right carpal tunnel, he said in cross-examination, that after the surgery, “it was alright for a couple of years, and then gradually it’s starting to come again, not as bad what it was before, but you still get numbness in your hands”. He said the pain in his hands, which was aggravated by his work, “was gradually getting worse and worse”, so he went to see his doctor who advised him to stop work” (transcript p 5). Mr Cook also said that he and his wife had moved house since he has stopped work, one of the reasons being the difficulty he experienced in mowing the lawns at his previous house, which used to take three hours, as opposed to 15 minutes at his new house. I note the Arbitrator said he was impressed with Mr Cook’s evidence and that Mr Cook “appeared to be obviously a very honest and straightforward person” (Statement of Reasons, paragraph 33).
In relation to the appeal, I note the Appellant does not dispute that Mr Cook is totally incapacitated for work. The Appellant submits the Arbitrator erred by finding there was one injury but two incapacities. In my view, it is clear from the Arbitrator’s Statement of Reasons that he was satisfied that Mr Cook had suffered two ‘injuries’ in terms of the definition in section 4 of the 1987 Act. The first injury was that which occurred in the course of his employment with Great Lakes Aggregates which, on the basis of the medical evidence and the Short Minutes dated 9 July 2002, appears to have been recognised as either a ‘disease’ contracted in the course of his employment, or the aggravation, acceleration, exacerbation or deterioration of a disease in the course of his employment. The second injury was that which occurred in the course of Mr Cook’s employment with Midpart, being the aggravation, acceleration or exacerbation of the disease or the further aggravation, acceleration or exacerbation of the disease that constituted the first injury, as, in my view, is clear from the Arbitrator’s Statement of Reasons at paragraph 46, quoted above. There is no error in the Arbitrator’s reasoning in this regard.
In relation to the second injury, since this comprised the aggravation etc, or further aggravation etc of a disease, section 16(1) of the 1987 Act applies. This states:
“16(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.”
In Mr Cook’s case, his incapacity dates from his consultation with Dr Dobell-Brown on 24 September 2004. Thus, pursuant to section 16(1)(a)(i), the injury is deemed to have happened on that day and, pursuant to section 16(1)(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 Arbitrator discussed the evidence, noting that after the initial reduction of his hours of employment with Tempo from full-time to four hours a day on five days a week because of the aggravation of his symptoms (see Dr Davis’ report dated 12 June 2006), Mr Cook continued his employment with Tempo without symptoms. The Arbitrator said (Statement of Reasons, paragraph 44):
“it is clear from the Applicant’s evidence and the history that he gave to Dr Davis that the Applicant continued his employment with Tempo without symptoms after that initial period”.
I have been unable to find any evidence in Dr Davis’ report or in Mr Cook’s statement or oral evidence to support the Arbitrator’s finding in this regard. In his Statement dated 15 February 2007, at paragraph 9, Mr Cook said he was still working part-time at Tempo at the time of settlement (9 July 2002), and that he commenced employment with Midpart, cleaning the McDonalds restaurant at Forster, in about July 2003. The work was similar, did not involve any jarring of his hands, and was more convenient in terms of location. Mr Cook said, at paragraphs 12-13:
“12. The condition of my hands has continued to deteriorate with time ever since I left Great Lakes Aggregates, with the level of pain gradually increasing and the amount of work or other activities that I am able to do with my hands without them hurting too much gradually becoming less and less over the past 7 years. There has been no sudden increase in this deterioration, just gradual over an extended period.
13. I kept working in the cleaning job, putting up with increasing pain as long as I could ...”
I have reviewed Mr Cook’s oral evidence at the hearing, discussed above. He said that he has “come to accept the condition and, you know, just put up with it” (transcript p 5). In answer to a question in cross-examination about his work with Tempo and Midpart, he said the pain in his hands “was gradually getting worse and worse”, leading to his going to see his doctor who advised him to stop work (transcript p 5).
In his report dated 12 June 2006, Dr Davis said:
“With respect to Mr Cook’s current impairment, I believe there has been linear contribution throughout his employment, commencing with Tempo and continuing through McDonalds with apportioned liability with regards to the duration of employment and hence two thirds to his employment at Tempo and one third to his employment with McDonalds.”
The Arbitrator found, at paragraph 47 of his Statement of Reasons, that the exacerbation of the condition affecting Mr Cook’s hands and wrists was caused by his employment with Midpart. At paragraph 52, the Arbitrator said Mr Cook’s employment with Midpart, “was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition of his hands and wrists to such an extent that his capacity for work is nil”. In my view, although there is some evidence to support a finding that Mr Cook suffered a further deterioration of the disease during the course of his employment with Midpart, there was insufficient evidence to support a finding that the further deterioration of his disease was due solely to his work with Midpart. On the contrary, the evidence suggests that there was a gradual deterioration of Mr Cook’s condition throughout the period he was working as a cleaner for Tempo and Midpart, and it is likely that at least some of that deterioration was due to the natural progression of the constitutional degenerative disease – the osteoarthritis in the joints of his hands - from which he suffers. Nevertheless, the progression of that deterioration is not clear, and the evidence of Mr Cook indicates that he still had a capacity for part-time work at the time he commenced employment with Midpart in July 2003.
The fact that my assessment of the evidence differs in this respect from that of the Arbitrator would not, in itself, pursuant to the application of section 16(1) of the 1987 Act, affect the outcome in this matter. As stated above, in the case of an injury consisting of the aggravation or exacerbation of a disease, where the injury caused incapacity, section 16(1)(b) imposes liability for compensation on the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation or exacerbation.
However, this raises another of the Appellant’s grounds of appeal: that the Arbitrator erred in law in finding employment with the Midpart was a substantial contributing factor to the injury. Section 9A of the 1987 Act states that no compensation is payable in respect of an injury unless the employment concerned was a ‘substantial contributing factor’ to the injury.
In Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’), the NSW Court of Appeal noted that there may be more than one substantial contributing factor to an injury. Mason P, at paragraph 27, agreed with the construction of Bishop J, at first instance, that ‘substantial’ meant “more than minimal, large or great”:
“remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, not does it attempt to exclude predisposition or susceptibility to a particular condition ...”
In Dayton v Coles Supermarkets Pty Ltd [2001] NSWCCR 26 (‘Dayton’), Meagher JA observed, at paragraph 16:
“Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word ‘substantial’. But this word is a plain English word understood by anyone who is not a judge. Nor have the judicial lucubrations contributed to anyone’s understanding of it. And nobody in their [sic - right] senses would regard a cause which could be correctly categorised as very ‘minor’ as ‘substantial’.”
Giles JA, at paragraph 23, perceived “some tension” in the observations of the Court of Appeal in Mercer. At paragraph 25, he cited with approval Burke CCJ’s discussion of ‘substantial’, at first instance in Dayton, where His Honour said there will never be a definitive statement of what constitutes a ‘substantial contributing factor’: “It will forever remain a question of impression and degree in any particular case”. Giles JA went on:
“His Honour said that the word [substantial] was ‘a common English word conveying imprecise magnitude but ‘an impression that something is serious, weighty, important, sizeable, or large’.’ He said that s 9A involved ‘an analysis of causal factors which resulted in the injury and an evaluation of the importance of the employment factors relative to the others’, and noted that it was the employment which must be a substantial contributing factor.”
In my view, it is clear that a finding of fact as to whether a worker’s employment is a substantial contributing factor to an injury is a matter of judgement. There may be other substantial contributing factors, but employment must be a “serious, weighty, important, sizeable or large” factor and not something that is a minor factor. Section 9A(2) provides examples of the matters to be taken into account in making a finding as to whether a worker’s employment was a substantial contributing factor to the injury.
In Mr Cook’s case, the Arbitrator discussed the medical evidence, noting that while at the time of settlement of Mr Cook’s proceedings against Great Lakes Aggregates, Mr Cook was only partially incapacitated for work, when he stopped work on 24 September 2004, he was totally incapacitated for work. I note the Appellant does not dispute the Arbitrator’s finding that Mr Cook was totally incapacitated for work. As stated above, the Arbitrator placed particular reliance on Dr Davis’ evidence and that of Mr Cook in finding that there was an aggravation of Mr Cook’s condition during the course of his employment with Midpart.
As to whether his employment with Midpart was a substantial contributing factor to his injury, it was certainly the case that Mr Cook retained a capacity for part-time work at the time he commenced employment with Midpart in about July 2003, and that by September 2004 he was totally incapacitated for work. Clearly, as the Arbitrator recognised, that total incapacity was “partially due to his employment with the First Respondent [Great Lakes Aggregates] and also due to constitutional factors” (Statement of Reasons, paragraph 51).
So the question is whether the contribution to the aggravation of Mr Cook’s condition by his employment with Midpart was ‘substantial’. Bearing in mind the above discussion of the meaning of ‘substantial’, I am not satisfied on the basis of the evidence discussed above and, in particular, in the light of there being other substantial contributing factors, that Mr Cook’s employment with Midpart could be considered a ‘weighty’ factor, sufficient to be considered ‘substantial’. Thus, in my view, the Arbitrator made an error of fact by giving inappropriate weight to the evidence, and the decision must be revoked.
In my view, it is also not clear what contribution the natural progression of his disease made to Mr Cook’s total incapacity for work as at 24 September 2004. This in turn raises the whole question of whether there was a second injury, namely the aggravation alleged to have occurred during the course of Mr Cook’s employment with Midpart. If there was no second injury, then the question raised is whether Mr Cook’s total incapacity was due to the injury caused in the course of his employment with Great Lakes, which ended in July 1999, or whether the total incapacity was due to the natural progression of his constitutional degenerative disease.
The Arbitrator’s finding set out at paragraph 52 of his Statement of Reasons was that although Mr Cook was still partially incapacitated for work as a result of the injury suffered in the course of his employment with Great Lakes Aggregates, he was not satisfied “on the material before [sic – me] and the Applicant’s evidence” that any variation of the award made by the Compensation Court was justified. In my view, the Arbitrator’s finding on this issue was correct. The evidence does not support a finding that any aggravation, acceleration, exacerbation, or deterioration of Mr Cook’s condition was the result of the injury suffered in the course of his employment with Great Lakes Aggregates.
I note that the Arbitrator also appears to have made an error of law in determining the weekly compensation payable to Mr Cook. Although it is not entirely clear from his Statement of Reasons, the Arbitrator appears to have made the award of weekly compensation pursuant to section 40 of the 1987 Act. This section provides for the payment of weekly compensation to an injured worker in respect of a period of partial incapacity for work. The Arbitrator found Mr Cook to be totally incapacitated for work from 24 September 2004. Thus the applicable provisions should have been sections 36 and 37 of the 1987 Act which provide for the payment of weekly compensation to an injured worker during a period of total incapacity. There is a ‘statutory cap’ on the amount of weekly compensation that may be awarded under section 37(1). The award of $330.00 made by the Arbitrator does not seem to be in accord with this cap.
In any event, my having found there is insufficient evidence to support a finding that Mr Cook’s employment with Midpart was a substantial contributing factor to the second injury, assuming there was a second injury, Mr Cook’s claim against Midpart must fail and an award must be made in Midpart’s favour.
DECISION
The decision of the Arbitrator dated 4 May 2007 is revoked and the following decision is substituted:
“1. Award for the Respondents.
2. No order as to costs.”
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
2 October 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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