Montrose v Coles Myer Ltd
[2005] NSWWCCPD 45
•30 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Montrose v Coles Myer Ltd [2005] NSW WCC PD 45
APPELLANT: Donna Montrose
RESPONDENT: Coles Myer Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 3124-04
DATE OF ARBITRATOR’S DECISION: 5 July 2004
DATE OF APPEAL DECISION: 30 May 2005
SUBJECT MATTER OF DECISION: Whether employment a substantial contributing factor to the injury and Section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Burridge & Legg, Solicitors
Respondent: Abbott Tout, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 30 July 2004, the Appellant, Donna Montrose, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 5 July 2004.
The Respondent to the Appeal is Coles Myer Ltd (‘Coles’).
Ms Montrose, who was born on 4 June 1966 and is aged 39, injured her left knee on 4 December 1989 while working as a shop assistant for Coles at their K Mart Bondi Junction store. The accident happened when she slipped on a ladder while trying to retrieve boxes of goods. She notified Coles of the injury on that day. Her employment with Coles ceased not long afterwards. Ms Montrose lives with her de facto partner, Mark Notton. They have two children: Tayla who was born on 10 July 1993 and Sydney who was born on 8 January 1998.
The injury to her left knee comprised a lateral dislocation of the left patella. Ms Montrose had arthroscopies on 9 January 1990 and again in 1991, and also had physiotherapy through this period. However, she continued to have dislocations of the left patella, occasionally resulting in falls.
On 7 September 1998, Ms Montrose claims to have fallen in the bath injuring her right knee as a result of her left knee giving way. Since then, she says she has also suffered regular dislocations of her right knee.
Ms Montrose’s treating orthopaedic specialist, Dr Craig Waller, has diagnosed bilateral patellofemoral instability and early degenerative arthritis in both knees. He proposes surgery to remove a loose body in the right knee and to stabilise the patellofemoral joints. Ms Montrose claims medical expenses for these procedures.
Ms Montrose also initially claimed weekly compensation but, at the Arbitration hearing on 18 June 2004, following an unsuccessful conciliation conference, sought to withdraw this claim. Coles conceded liability for the injuries sustained to the left knee and in respect of the treatment proposed for that knee, but denied liability for the injury to the right knee and in respect of the treatment proposed for that knee.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 5 July 2004 records the Arbitrator’s orders as follows:
“(1) That the Application for weekly compensation be discontinued, the requirements of the rules in respect of a Notice of Discontinuance are dispensed with pursuant to rule 6(2).
(2) That the Respondent pay the Applicant’s reasonable and necessary medical expenses in relation to proposed surgical procedures for Stabilisation of left patellofemoral joint.
(3) Award for the Respondent in respect of the Applicant’s claim for medical expenses pursuant to section 60 of the Act in relation to injuries sustained to the right knee.
(4) That the Respondent pay the Applicant’s costs as agreed or assessed.”
In her ‘Statement of Reasons for Decision’ dated 5 July 2004, at paragraph 44, the Arbitrator discussed the evidence as to what occurred at the time of Ms Montrose’s fall on 7 September 1998:
“The Patient Report from the Ambulance Service of New South Wales reports that patient lying on bathroom floor. Male partner reported that patient took heroin this afternoon and that she was found lying in the bath with her face under water. The report goes on to state post 4 mg of Narcan the patient was very combative aggressive. Police assistance required. Patient handcuffed to facilitate t [sic].”
The Arbitrator noted at paragraph 55:
“The clinical notes record a history of possibility of a heroin overdose. It was not established that there was a heroin overdose or that that was what led to the Applicant’s collapse.”
The Arbitrator found:
“68. In summary the Applicant has given an explanation of how the injury to the right knee occurred, however there are a number of inconsistencies which undermine this version of events. There is a contemporaneous record taken from the Applicant’s partner Mr Notton given to the ambulance officers and hospital staff. He told the ambulance officers that she had taken heroin earlier that day and later told the hospital staff that she had been very depressed. The record is taken in a life threatening/saving situation. The Applicant gave no evidence to explain why Mr Notton would have given evidence which she claims is wrong. Mr Notton was not called to give evidence.
69. There is also no record of injury as a consequence of Ms Montrose striking her head leading to unconsciousness and yet she was found unconscious in the bath. There is no dispute that there was a significant struggle when Ms Montrose regained consciousness. The Respondent submits that this could have been when the injury to the knee occurred. Ms Montrose denies she had taken heroin that day. There is also no contemporaneous note of the Applicant complaining to hospital staff that she injured her right knee when her left knee gave way.
70. Having regard to the anomalies in this matter and lack of clarity as to what occurred on 7 September 1998 I am unable to find that the injury to the right knee was a consequence of the left knee given [sic] way. Consequently I am unable to find that employment was a substantial contributing factor to the injury and that the injury arose out of or in the course of employment.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether Ms Montrose’s employment by Coles was a substantial contributing factor to the injury to her right knee. In particular, did her left knee give way on 7 September 1998 and was the injury to her right knee the result of this?
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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 that are before me, and the submission by the parties that the appeal can proceed to 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the1998 Act, which states:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
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 compensation sought in respect of Ms Montrose’s right knee exceeds $5,000 and 20% of the amount awarded in the decision appealed against. In a letter dated 2 May 2003, Dr Waller estimated the cost of stabilisation of the left patellofemoral joint as approximately $12,000, the arthroscopic removal of the loose body in the right knee as $8,000, and the stabilisation of the right patellofemoral joint as $12,000. Thus, I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which states:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘fresh evidence’ on appeal. The ‘Application – Appeal Against a Decision of an Arbitrator’ must include:
“- a schedule of the new evidence
– a copy of the new evidence
– a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and
– submissions on why the new evidence should be admitted.”
The Practice Direction also provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, the party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably be obtained by and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Ms Montrose’s solicitors seek the admission of fresh evidence namely a statement of Mark Notton dated 29 July 2004. Mr Notton has been Ms Montrose’s de facto partner since the 1990s including at the time of her injury on 7 September 1998. Ms Montrose’s solicitors submitted that Mr Notton’s statement deals with issues raised by clinical notes produced by Mona Vale Hospital to which they did not have access before the arbitration hearing. They claim not to have had notice that the notes would be relied upon prior to the hearing. However, Coles’ solicitors, in their ‘Reply to Application to Resolve a Dispute’ lodged on 9 March 2004, note that they listed clinical records from Mona Vale Hospital among the evidence upon which to be relied.
Ms Montrose’s solicitors acknowledge that Mr Notton’s statement “does not go to precisely what occurred when the applicant collapsed”. Coles’ solicitors submit:
“The statement made by Mr Notton dated 29 July 2004 is essentially a retraction of comments made by him to ambulance officers in September 2001 [sic] that the Applicant had taken heroin prior to the discovery of her body in the bath. His most recent statement is inconsistent with his previous comments and the clinical records produced in this matter.”
In my view, Mr Notton’s statement is not a retraction. He says, “I cannot now recall what I said to ambulance and hospital staff”, and then goes on to say what it is likely he told them.
The admission of new or fresh evidence in an appeal has been considered by the Commission in a number of cases and the principles are well established: see, for example, Shipman Pty Ltd v Matters [2003] NSW WCC PD 19 and McMahon v Laguna and Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22. The factors that weigh in favour of the exercise of the discretion to admit fresh evidence in an appeal include:
• if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted;
• the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings; and
• the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case.
Factors weighing against the exercise of the discretion include:
• the interest in the finality of the litigation and the importance of the successful party being able to rely on the outcome of the proceedings;
• the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal; and
• the intention of the legislative scheme in relation to the nature of the proceedings.
With regard to the intention of the legislative scheme, it should be noted, in particular, that section 352(5) of the 1998 Act provides that “[a]n appeal under this section is to be by way of review of the decision appealed against” – the appeal is not a rehearing of the matter. The Presidential Member’s role is to review the decision of the Arbitrator, and the Presidential Member may only revoke, substitute or remit in relation to that decision (section 352(7)) where it can be demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
I am not satisfied that refusal of the request to admit Mr Notton’s statement would lead to a substantial injustice to Ms Montrose. In my opinion, the statement is not of such probative value that it would make any significant contribution to the evidence because, as Mr Notton admits, he does not have any clear recollection of what he said to ambulance and hospital staff on 7 September 1998. Moreover, as Ms Montrose’s solicitors acknowledge, it “does not go to precisely what occurred when the applicant collapsed”. Therefore, having regard to the interest in the finality of the litigation and the possibility of prejudice to Coles if the statement is admitted, leave to admit Mr Notton’s statement is refused.
SUBMISSIONS
Ms Montrose’s solicitors submit that the Arbitrator’s decision “was against the clear weight of evidence by the applicant that her collapse was caused by her left knee giving way”. They submitted:
“11. It is a very significant fact that there is an x-ray of the applicant’s right knee among the hospital clinical notes of her admission on 7 September 1998. This indicates she must have made immediate complaint about the condition of her knee after she regained consciousness.
12. There is no material from which it can be concluded or assumed that the applicant sustained an injury to her right knee while struggling with police or ambulance officers. The finding to that effect constitutes pure speculation.”
Coles’ solicitors note that there were no witnesses to Ms Montrose’s collapse and subsequent loss of consciousness. She has “little recollection of the incident and cannot explain why she was unconscious”. Moreover, Dr Waller’s opinion that the dislocation of Ms Montrose’s right knee took place when her left knee gave way, was based on the history given to him by Ms Montrose, which conflicts with the contemporaneous evidence contained in the clinical records produced by Mona Vale Hospital.
Coles’ solicitors submit that the existence of an x-ray report of Ms Montrose’s right knee showing some effusion but no other injury, is not evidence of an injury to the right knee that can be attributed to Ms Montrose’s former employment with Coles. The solicitors noted that the clinical notes following her admission do not reveal any complaints by Ms Montrose of right knee pain:
“The Applicant also attended hospital on 26 March 2002 at which time it was recorded that whilst leaning over her bed, she felt her right knee dislocate. The notes stated that the Applicant had suffered from dislocations to the left knee on numerous occasions but that it was the first time it had occurred on the right side. Progress notes also dated 26 March 2002 referred to a past history of patella instability and in particular it was noted ‘right knee injury four years ago after given Narcaine following heroin ? OD – fallen asleep in bath, following the injury swollen and painful.’
The history taken by the hospital on 26 March 2002 is consistent with the history taken by the hospital immediately following the Applicant’s admission on 7 September 1998. That is, there is no suggestion at either entry, that the Applicant’s right knee complaints were caused by the collapse of her left knee.”
Noting Dr Waller’s comment that Ms Montrose has “some of the anatomical features which can predispose to the condition of recurrent lateral dislocation of the patellae”, Coles’ solicitors submitted that:
“it is quite possible the the applicant could have suffered an injury to the right knee during her altercation with the police and it is submitted that it is open to the Commission to arrive at that conclusion on the evidence before it.”
EVIDENCE
Ms Montrose was admitted to Mona Vale Hospital on 7 September 1998 after an ambulance had been called to her house when she was found lying face down in the bath. The Ambulance Service Patient Report of that date states:
“Male partner states PT [patient] took heroin this afternoon, found in bath … post 4 mg Narcan IM [intra muscular] PT roused and became very combative, aggressive, Police assistance required. PT handcuffed to facilitate.”
The Mona Vale Hospital’s Emergency Department Clinical Record records the presenting problem as “? Heroin O/D”. The Notes record that her partner:
“states she is depressed. Clean for 5 yrs until tonight. States she is depressed because of post partum [post natal] depression. Has 6 month old and & 3 yr old @ home.”
The Progress Notes for that day include the following observation:
“Circumstances surrounding today’s events very vague. - took heroin at about 2 pm – for some reason or other was found immersed in a bath for 3 minutes (? less or more.).”
Amongst the Hospital’s clinical notes is a report of an x-ray of the right knee taken at 09.39 on 8 September 1998. This states: “There is quite a large suprapatella effusion present. There is no bone injury or dislocation.” There is no other reference to the right knee among the available reports from that time.
In Ms Montrose’s statement of 5 February 2004, she states:
“In August 1998 I was getting into the bath and my left knee gave way. I immediately felt severe pain in my right knee as well and felt that my right knee cap had dislocated. I lost consciousness and was taken to Mona Vale Hospital.”
In Dr Waller’s report of 25 March 2002, he records:
“In September 2001 [sic] she was stepping into a bath when her left knee gave way due to lateral subluxation of the patella. She sustained a twisting injury to her right knee as she fell. She dislocated her right patella. She was taken by ambulance to Mona Vale Hospital.”
Mona Vale Hospital’s Emergency Department Clinical Records show Ms Montrose’s next hospital admission was on 22 May 1999 for “? allergic reaction” following her “having injected unknown quantity heroin + cocaine”. Then on 26 March 2002, Ms Montrose presented at the Emergency Department with a dislocated right patella. The Clinical Record, under the heading ‘History’, states:
“- Twisting injury to R knee whilst rolling over in bed
- sudden onset severe pain & heard ‘crack’- tried to extend her knee but unable to move it at all.”
In his Report of 25 March 2002, Dr Waller also notes “X-rays of the right knee from 19th March 2002 showed minor degenerative changes and a loose body in the suprapatellar pouch.” This loose body “may cause problems such as locking of the joint”. With regard to causation, he concludes:
“Her right patellar dislocations began on an occasion in September 2001 when her left knee gave way. In my view therefore her right knee condition has been substantially contributed to by her left knee condition.
It needs to be noted, however, that Miss Montrose has some of the anatomical features which can predispose to the condition of recurrent lateral dislocation of the patellae.”
In answer to questions from the Arbitrator at the arbitration hearing on 18 June 2004 (transcript page 3), Ms Montrose said she had been with a girlfriend on 7 September 1998:
“We were painting the house that day, the inside of the lounge and the bedroom doors. She’d gone home. Mark, my partner, had gone to pick up my daughter from kindergarten at Mona Vale, and I thought I would get into the bath, and my bath is quite a big step up to just get into it. So I stepped in. I remember my right knee, just this excruciating pain and then falling down – that’s all I remember – and then waking up in hospital.”
Ms Montrose said Mark had told her that when he got home from collecting her daughter from kindergarten, he went into the kitchen and her daughter came into the bathroom to show her a picture she had done that day.
Ms Montrose said she had not been using drugs that day but (transcript page 4):
“Q. Were you using drugs around that time?
A. Cocaine probably a bit before.
Q. Had you taken any heroin on that day?
A. No.”
She said that when she woke up in hospital, she felt her right knee throbbing, and she left hospital with her leg in a splint. This was the first time she had had such a problem with her right knee.
DISCUSSION AND FINDINGS
Section 4 of the Workers Compensation Act 1987 defines ‘injury’ as meaning “personal injury arising out of or in the course of employment”. Section 9A(1) states:
“No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
The issue in dispute in the appeal is whether Ms Montrose’s employment by Coles and, in particular, the injury to her left knee, was a substantial contributing factor to the injury to her right knee.
As stated above, the Presidential Member’s role on an appeal is to review the decision of the Arbitrator in order to ascertain whether, as will usually have been submitted by at least one of the parties, the Arbitrator made a legal, factual, or discretionary error. In this case, Ms Montrose’s solicitors are challenging the Arbitrator’s use of her discretion submitting that her decision “was against the clear weight of evidence by the applicant that her collapse was caused by her left knee giving way”. They emphasised the significance of the x-ray of the right knee taken on 8 September 1998 and submitted that a finding that the injury to the right knee occurred during a struggle with police “constitutes pure speculation”. In fact, the Arbitrator did not make such a finding – she merely referred to the submission made by Coles’ solicitors that this was when the injury to Ms Montrose’s right knee occurred.
As to the submission on the “clear weight of evidence”, I am not satisfied that it is clear. Certainly, Ms Montrose says in her statement dated 5 February 2004 that she got into the bath and her left knee gave way, but she did not mention her left knee in her oral evidence to the Arbitrator. Moreover, the other evidence as to what happened and whether, despite her denial, Ms Montrose was affected by drugs, is extremely unclear. Mr Notton’s contemporaneous evidence to the ambulance officers and to staff at the hospital indicates that she may have been so affected. Her own evidence to the Arbitrator was that she was taking drugs around that time, although not on that day. If Ms Montrose was not telling the truth about whether she took drugs on 7 September 1998, then her being affected by drugs may have caused her to fall. In my view, the evidence is not sufficiently clear or reliable to support a finding that the right knee was injured as a result of the left knee giving way. I do not agree that the Arbitrator’s decision was against the weight of evidence.
The x-ray report of 8 September 1998 is evidence of the injury to the right knee. However, while recording “a large suprapatella effusion”, the report states “There is no bone injury or dislocation.” The “loose body in the suprapatellar pouch” revealed in the x-ray of 19 March 2002, is not mentioned in the x-ray report of 8 September 1998.
Essentially, the only evidence of the injury to Ms Montrose’s right knee being caused by her left knee giving way, is her statement of 5 February 2004. I agree with the Arbitrator’s finding that there are anomalies and a lack of clarity as to what occurred on 7 September 1998, and I am satisfied that these are sufficient to justify the Arbitrator’s conclusion that she was unable to find that Ms Montrose’s employment by Coles was a substantial contributing factor to the injury to her right knee. I am therefore also satisfied that the Arbitrator did not make a discretionary error, with the consequence that her decision must be confirmed.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
30 May 2005
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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