Morall's Bakery Pty Ltd v Lewis
[2006] NSWWCCPD 210
•30 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Morrall’s Bakery Pty Ltd v Lewis & Anor [2006] NSWWCCPD 210
APPELLANT: Morrall’s Bakery Pty Ltd
FIRST RESPONDENT: Rhonda Joy Lewis
SECOND RESPONDENT: Bourke District Hospital
INSURERS:GIO General Ltd
GIO Workers Compensation (NSW) Ltd
GIO Treasury Managed Fund
FILE NUMBER: WCC 18526-03
DATE OF ARBITRATOR’S DECISION: 14 March 2005
DATE OF APPEAL DECISION: 30 August 2006
SUBJECT MATTER OF DECISION: Aggravation of disease: sections 4, 16 and 9A of the Workers Compensation Act 1987; incapacity.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers.
REPRESENTATION: Appellant: Edwards Michael,
Lawyers
First Respondent: McCabe Partners,
Lawyers
Second Respondent: Rankin Nathan,
Lawyers;
Hunt & Hunt, Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 14 March 2005 is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons.
2. The second respondent, Bourke District Hospital, is to pay the costs of the appellant and first respondent of the appeal.
BACKGROUND TO THE APPEAL
Rhonda Joy Lewis (‘the worker’) was employed by Bourke District Hospital (‘the hospital’) for a considerable period from, it appears, 1977 up to October 1993. She was employed in the laundry of the hospital initially and later in the kitchen doing cooking, meal serving and cleaning. During that period she was admitted to the hospital as a patient on a number of occasions suffering from backache and on certain of those admissions was treated by traction. It is not clear that any claim for compensation was made by her in respect of any of the periods of incapacity which she had from 1984 to 1993.
The insurance situation of the hospital is somewhat complicated. It is stated in the Application to Resolve a Dispute lodged on 26 November 2003 that the first insurer was GIO General Ltd, the second GIO Workers Compensation (NSW) Ltd, and the third GIO Treasury Managed Fund. The first insurer was, it appears, on risk up to 30 June 1987, the second up to 30 June 1989, and the third thereafter. Replies were filed on behalf of the first and third insurers only, however, I think that nothing turns on this. It is puzzling that in the Reply filed on behalf of the first insurer, that insurer is stated to be GIO Workers Compensation (NSW) Ltd.
After leaving the employ of the hospital the worker obtained a number of casual positions for relatively short periods until she began work with Morrall’s Bakery Pty Ltd (‘the bakery’) on 3 September 1998 and worked in the bakery until 5 January 1999. (It should be noted that although the Arbitrator on 22 March 2004 gave a direction that the name of the appellant be changed to Morrall’s Bakery Pty Ltd instead of Alan Morrall trading as Morrall’s Bakery & Cafe, all documents filed thereafter still refer to Alan Morrall. There is a company search attached to the Application to Resolve a Dispute in respect of Morrall’s Bakery Pty Ltd. The direction made by the Arbitrator appears to have been overlooked by all parties as well as the Arbitrator. In this determination I have referred to the company throughout as being the correct party and insofar as it is necessary to do so, I make an order that all documents filed be amended to show the appellant as Morrall’s Bakery Pty Ltd.)
The worker was, after leaving the bakery, unemployed except for a period of part-time work which she performed for her sister at a TAB situated in a hotel in Bourke from October 2000 to October 2001.
On 18 September 2002 claims were made against the hospital and the bakery for weekly payments of compensation together with lump sums under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) and interest. The insurers either declined liability or did not respond to the claim made and, accordingly, an Application to Resolve a Dispute was lodged on 26 November 2003.
There was a hearing of the matter on 26 August 2004 at which the worker gave evidence. The matter was initially decided by the Arbitrator on 11 February 2005 however, an Amended Certificate of Determination was issued on 14 March 2005.
The Arbitrator found in favour of the worker and ordered that the insurer of the bakery pay all of the compensation awarded, including weekly compensation going back to 15 October 1993.
It is from this decision that the bakery seeks leave to appeal by application lodged on 15 March 2005.
THE DECISION UNDER REVIEW
The Amended ‘Certificate of Determination’, dated 14 March 2005 records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant the following sums pursuant to section 66 of the 1987 Act.
$17,500.00 representing:
·2.5% permanent impairment to the left arm
at or above the elbow $ 1,875.00
·5% permanent impairment of the Respondents
(sic) right arm at or above the elbow $ 4,000.00
·2.5% permanent impairment to the left leg at
or above the knee $ 1,875.00
·5% permanent impairment to the right leg at
or above the knee $ 3,750.00
·10% permanent impairment to the back $ 6,000.00
·0% permanent impairment of the sexual organs $ 0.00
2. That the Respondent pay to the Applicant the sum of $10,000.00 representing 20% of a most extreme case for pain and suffering pursuant to section 67 of the 1987 Act.
3. That the Respondent pay to the Applicant the following weekly compensation pursuant to sections 38 and 40 of the 1987 Act.
Period
Weekly Rate
(adjusted)(i) 14.10.93 – 30.06.94
$157.23
(s40)
(ii) 01.07.94 – 31.05.95
$177.34
(s40)
(iii) 01.06.95 – 30.06.95
$477.34
(s38)
(iv) 01.07.95 – 01.06.96
$192.13
(s40)
(v) 02.06.96 – 30.06.96
$192.13
(s40)
(vi) 01.07.96 – 28.10.96
$193.60
(s40)
(vii) 29.10.96 – 30.06.97
$493.60 for remainder 26 weeks then applicable statutory rate
(s38)
(viii) 01.07.97 – 03.08.97
Applicable statutory rate
(s38)
(ix) 04.08.97 – 30.06.98
$197.05
(s40)
(x) 01.07.98 – 02.08.98
$202.51
(s40)
(xi) 03.08.98 – 05.01.99
$ Nil
(s40)
(xii) 06.01.99 – 03.11.99
$218.59
(s40)
(xiii) 04.11.99 – 30.06.00
Applicable statutory rate
(s38)
(xiv) 01.07.00 – 01.10.00
Applicable statutory rate
(s38)
(xv) 01.10.00 – 30.06.01
$249.70
(s38)
(xvi) 01.07.01 – 20.05.02
Applicable statutory rate
(s38)
(xvii) 20.05.02 – 30.06.02
Applicable statutory rate
(s38)
(xviii) 01.07.02 – date & continuing
Applicable statutory rate
(s38)
4. That the Respondent pay the Applicant’s costs as agreed or assessed.
5. That this Award be paid by the Second Respondent’s Insurer pursuant to section 16(1)(b) of the 1987 Act.”
The Arbitrator decided that the worker was suffering from a degenerative condition of her back which was longstanding and constitutional in nature. However, he considered that this condition had been aggravated by her work at both the hospital and the bakery. He identified two dates of injury for the purposes of section 16 of the 1987 Act, namely when the worker ceased work for the hospital, that is 2 October 1993, and the second when she ceased work with the bakery, that is 4 January 1999. He decided that the bakery should bear the burden of paying all the compensation since it was the employer which last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The Arbitrator referred to P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 20 NSWCCR 554 (‘P&O Berkeley Challenge’) in this regard. The Arbitrator considered section 9A of the 1987 Act and was of opinion that the medical reports and in particular that of Dr Michael Long, the Approved Medical Specialist, showed that employment with the bakery had been a substantial contributing factor to the aggravation or exacerbation of the injury (being a disease). The Arbitrator considered it an unfortunate result but one which followed from the findings he made and the wording of the 1987 Act. In that regard he referred to Gow v Patrick Stevedores Pty Limited (2002) 24 NSWCCR 626 (‘Gow’).
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a)Whether the evidence was sufficient for the Arbitrator to conclude that work with the bakery was a substantial contributing factor to the injury.
(b)Whether the Medical Assessment Certificate prevented the Arbitrator from making the finding which he did, that the bakery was liable to pay the compensation.
(c)Whether the Arbitrator has misconceived the principles arising from Gow.
(d)Whether the Arbitrator failed to have regard to relevant incapacity existing prior to the worker’s employment with the bakery.
(e)Whether the award for weekly payments was erroneously made.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the worker and hospital’s solicitors 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 the Workplace Injury Management and Workers Compensation Act 1998 (‘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.
In a section 362 Certificate issued by the Commission on 29 March 2006 the past weekly payments were certified as being $158,230.15 and the amounts payable under section 66 and 67 as $27,500.00. The amount at issue on the appeal is accordingly in excess of $5,000.00 and all of that amount is at issue. Accordingly, leave to appeal is granted.
EVIDENCE
At the hearing before the Arbitrator a great many medical reports were in evidence, together with a Medical Assessment Certificate of Dr Michael Long which is undated but which relates to an examination of the worker which he carried out on 27 May 2004. The contemporaneous medical evidence shows beyond doubt that the worker had significant problems with her back requiring hospitalisation from 1984 onwards. It is clear that she saw Dr Stratton, orthopaedic surgeon, on 10 July 1984 when he prescribed a lumbar corset. He diagnosed a “painful lumbar disc degeneration”. The hospital notes show that the worker underwent a lumbar myelogram on 10 October 1984 which was reported as showing “some pressure on the anterior surface of the thecal sac at the level of the L4-5 discs [sic]”.
It is necessary to look at the Medical Assessment Certificate of Dr Long in some detail. The question which was referred to him was in respect of a deemed date of injury of 5 January 1999 only. It appears that an assessment of permanent impairment on the following parts of the worker’s body was sought, namely: neck, left arm, right arm, left leg, right leg, back and sexual organs.
Dr Long saw the radiological reports from June 1982 onwards including the lumbar myelogram report to which I have earlier referred. He considered that that report suggested a slight prolapse of the L4/5 disc. Dr Long obtained a history that the worker had been employed at the bakery for approximately twelve months. The doctor was asked whether apportionment between the several accidents was necessary and said “no”. He considered what the percentage of the total permanent loss of efficient use of or impairment of the various parts of the body was. Some of this loss of efficient use or permanent impairment he considered was due to pre-existing injury, abnormality or condition. The doctor considered that the worker’s employment with the bakery, which he was told was for a period of twelve months, caused an aggravation of her symptoms which he thought was temporary and had ceased. He would not, he said, associate any permanent impairment with her work at Morrall’s Bakery. In a summary table the doctor sets out his assessments of loss of use or impairment and these are in accordance with the amounts awarded by the Arbitrator after the reduction of 50% for pre-existing abnormality or condition.
In relation to the right arm, it should be noted that Dr Bentivoglio, an orthopaedic surgeon who visited Bourke on a regular basis, saw the worker on 11 May 1995. Dr Bentivoglio reported to Dr Greenberg of Bourke that the worker had had an ultrasound that day and Dr Bentivoglio considered that an acromioplasty of her right shoulder was warranted. That operation was carried out by Dr Bentivoglio in July 1995. For completeness sake I should say that the reports show that Dr Bentivoglio performed two laminectomies on the worker’s lumbar spine on 3 November 1999 and 20 May 2002.
Dr Bentivoglio reported to the worker’s solicitors on 2 August 2002. He reported seeing the worker concerning her right shoulder in February 1991. His conclusion was that the worker had developed a rotator cuff lesion in her right shoulder as a result of work activities. So far as the back was concerned, the worker had developed degenerative osteoarthrosis as a result of her work activities, as well as constitutional degenerative changes in her back. The doctor made assessments as to loss of use of the right arm and right leg together with an assessment of impairment of the back. All of these he considered attributable to her employment at the hospital. He did not obtain a history of employment at the bakery. When Dr Bentivoglio saw her again on 13 March 2003 he reported that his views remained unchanged.
Dr Dalgety, a general practitioner of Bourke, sets out what the records of the practice state in relation to the worker. She had been the worker’s GP since January 1995. The records show that the worker had first attended with back pain in June 1982. Dr Dalgety records a number of attendances for back pain during the 1980s. In September 1986 the worker had attended with a rotator cuff injury to her right shoulder which was treated with injection. There were a number of attendances in 1996 with back pain also and the worker was hospitalised from 29 October 1996 to 9 November 1996 and from 3 February 1997 to 8 February 1997. In August 1998 she had developed symptoms of a rotator cuff injury in her left shoulder and this diagnosis was confirmed by Dr Bentivoglio. Dr Dalgety considered that the diagnoses were consistent with work-related stresses and injuries. She thought the worker had been largely unfit for work from 1998 and certainly since 1999, especially for cleaning work.
Dr Endrey-Walder, surgeon, saw the worker at the request of her solicitors on 21 July 2003. The history of back and shoulder complaints was consistent with that recorded in the GP’s notes to which I have earlier referred. The worker told Dr Endrey-Walder that she had started doing casual work in 1997 for the bakery but was not put on the books until September 1998. She said that by early January 1999 she could not cope with the work requirements and her employment came to an end on 5 January 1999. Shortly after stopping work at the bakery she was started on oral morphine and the doctor records the history of surgery to the back at the hands of Dr Bentivoglio to which I have earlier referred. He concluded that her work activity at the bakery would be unlikely to have significantly contributed to the structural derangements causing her ongoing symptoms but would have caused her symptomatic aggravation and exacerbation. The doctor assessed loss of use of the right arm which he attributed to her employment with the hospital and so far as the back, neck, legs and sexual function were concerned, he thought that these were due to her employment with both the bakery and the hospital and he referred to the disease provisions of the Workers Compensation Act 1987. One-fifth of the back impairment was said to be attributable to constitutional factors and the remainder, the nature and conditions of her employment, at the hospital.
Dr Michael Lowy, who is described as sexual health physician, saw the worker on 21 July 2003 at the request of her solicitors to assess loss of use of the sexual organs. That doctor obtained a history that between September 1998 and January 1999 the worker worked in a local bakery and cafe, however, the work was heavy and due to increased pains she had a laminectomy in May 1999 (this is obviously incorrect and the first laminectomy was in November 1999, the second being in May 2002).
Dr Matheson, a consultant neurosurgeon, saw the worker on 18 March 2003 at the request of the solicitors for the bakery. He obtained a history that the worker’s symptoms had gradually got worse over the years and were still getting worse, although she was not working. He thought that she suffered from a constitutional condition which was not at all work-related.
Dr R. Smith, surgeon, saw the worker at the request of the solicitors for the bakery also on 31 October 2003. The doctor concluded that the worker’s employment was not a substantial contributing factor to the injury/condition alleged in the claim. He referred to an annexure which has not caused him to change his mind, however, it is unclear what this refers to. He concluded that it was possible that her work and other activities could have caused some temporary aggravation.
Dr Michael Lim, occupational physician, saw the worker on 25 November 2002 at the request of one of the insurers of the hospital – it is not clear which. She told that doctor that she had last been employed as a hospital assistant at Bourke District Hospital on 14 October 1993. That doctor does not appear to have obtained a history of employment at the bakery at all. He was opinion that the worker’s work duties could not be contributory to her neck or back symptoms or the associated symptoms in her right arm and right leg. He did not think the history of clinical features were indicative of any work-related disorder either by nature of causation or aggravation. Although he assessed various losses of use and impairments, he considered that these were attributable to constitutional degenerative disorders and he considered that her employment at the hospital did not contribute to impairment of the lumbar spine.
Dr Lim again saw the worker on 5 April 2004 at the request of the solicitors for the last insurer of the hospital. She said she had gone onto a disability support pension three years before. On this occasion the worker told the doctor about her employment at the bakery which she thought was for a period of just under a year and she described to the doctor her duties at the bakery. His conclusion was that the employment at neither the bakery nor the hospital contributed to the contraction or permanent aggravation of degenerative disorders of her spine and shoulders, nor was such employment contributory to her current incapacity.
Dr John Bosanquet, orthopaedic surgeon, saw the worker on 31 March 2004 at the request of the solicitors acting for an earlier insurer of the hospital. That doctor’s opinion was that the worker’s employment with the hospital was a substantial contributing factor to the symptoms in her neck, lower back and right and left legs. He also thought it was a substantial contributing factor to the symptoms in her right arm. These injuries were however superimposed on underlying degenerative changes. That doctor did not, it appears, obtain a history of employment at the bakery. (Although the report of Dr Bosanquet was referred to the Approved Medical Specialist, Dr Long, the Arbitrator does not refer to it in his Reasons for Decision and, it appears, did not consider that opinion.)
Several statements of the worker were in evidence and she also gave oral evidence on 26 August 2004. The worker in a statement said that she obtained work at the bakery in 1996 (this is obviously incorrect) and that she was required to work five days a week: 9 to 5.30 and on Saturdays also from 4 to 5 hours. The work was said to be very busy and required a lot of bending and lifting of heavy weights. She says that this work caused a significant aggravation, acceleration, exacerbation or degeneration of her back and neck, although the work was significantly lighter than the work at the Bourke District Hospital.
In her oral evidence, the worker said that when she left the bakery she was physically worse off than she had been when she commenced there. She said she had to assist in a car delivering pizzas at night and had to stock the bakery and carry cartons which were heavy. It is clear from the worker’s evidence in cross-examination that, although she could do the work at the bakery when she started there, she did not think she could do so any longer. In cross-examination on behalf of the bakery the worker said that she was in pain when she started there and felt that she got more pain while she was working there so she stopped. Since she stopped work at the hospital she had been getting progressively worse.
There was a statement from Mr Morrall in evidence. He said the worker was employed from 3 September 1998 to 4 January 1999. Her duties were to serve customers at the counter. At times she would have to walk to a rear room from the shop and remove a tray of 24 pies from an oven which weighed about 7 kilograms. Bread was placed in crates of 12 by bakery staff and the shop staff would have to remove the bread loaf by loaf. He considered that the worker rarely lifted a crate which would weigh about 9 kilograms maximum. Her other duties were to sweep and mop the shop and kitchen floor areas which it is said would take her about 30 minutes. This chore was shared by the workers. However, the worker would have done it about three days per week.
SUBMISSIONS
On behalf of the bakery:
It is submitted on behalf of the bakery that the Arbitrator’s conclusion at paragraph 26 that the worker’s employment with the bakery aggravated or exacerbated her condition “as asserted by Drs Bentivoglio and Long” was erroneous or out of context. It is submitted that the Arbitrator erred in concluding that the temporary aggravation gave rise to ongoing liability pursuant to section 16 of the 1987 Act. It is submitted that the employment with the bakery was not a substantial contributing factor to the aggravation etc of the degenerative disease of the worker’s back. It is submitted that the Medical Assessment Certificate was conclusive as to the disabilities resulting from employment with the hospital and not from employment at the bakery. It is submitted that any additional incapacity arising from the worker’s employment with the bakery was, on the medical evidence, temporary in nature only. The quantification of the weekly award is challenged with the award pursuant to section 38 being said to exceed the statutory maximum payable.
On behalf of the worker:
It is submitted on behalf of the worker that the Arbitrator’s award should be supported except that there was a mistake made as to liability for payment of compensation. It is said that the hospital ought pay weekly compensation up to 2 September 1998 and the bakery thereafter. It is submitted that the work with the bakery was a substantial contributing factor to the aggravation etc of the worker’s disease.
On behalf of the hospital:
It is submitted on behalf of the hospital that the Arbitrator has not erred in attributing liability to the bakery and reliance is placed on the Medical Assessment Certificate of Dr Long. It is said that section 16 does not distinguish between temporary or permanent aggravation of disease. It is said that the bakery is liable to pay compensation as it was the last employer which employed the worker in employment which aggravated her condition.
The submissions on behalf of the hospital to which I have referred were made on behalf of the hospital’s last insurer. No submissions were received on behalf of the hospital’s first or second insurers and, indeed, it appears that the second insurer of the hospital has taken no part in these proceedings at all. Given the period for which that insurer was on risk, I do not think that this is of any consequence.
DISCUSSION AND FINDINGS
Pursuant to section 352(5) of the 1998 Act, an appeal to a Presidential Member is by way of review of the decision appealed against. It has been held that a review is a rehearing but not a hearing de novo. Accordingly, it is necessary to demonstrate some error of law, fact or discretion on the part of the Arbitrator which affects the determination which was made.
I have already noted that the Arbitrator found two dates of injury. The Arbitrator however discounted the first date of injury by reason of the deeming provisions contained in section 16 of the 1987 Act. As I have already indicated, the referral to the Approved Medical Specialist specified the date of injury as 5 January 1999 only. The Arbitrator referred to P&O Berkeley Challenge as being authority for the conclusion to which he came, that the bakery must bear the burden of all payments of compensation, notwithstanding that a large part of them had accrued prior to employment of the worker at the bakery.
Section 33 of the 1987 Act is as follows:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I have great difficulty in seeing how an incapacity for work from 1993 to 1998 results from an injury which is found to have happened on 5 January 1999. Reliance is placed on paragraph 11 of the judgment of Priestley JA in P&O Berkeley Challenge. That is as follows:
“The trial judge’s conclusion was that it was a s16 case. She said that the worker’s uncontested evidence was of the onset of symptoms in 1992 with time off work in 1993 and the worsening of symptoms until by February 1996 the worker was unable to carry on any longer. On that basis the second employer was the only employer liable.”
The appeal in that case was dismissed. However, a little later in the reasons of Priestley JA in paragraph 13 the following is said:
“Relying on what had been said by Sheller JA in the GIO Workers Compensation case (12 NSWCCR at 196) she [the trial judge] held that incapacity for the purpose of s16 was a reference to incapacity for which compensation was claimed. She said that in the case before her the relevant date was the commencement of the worker’s inability to earn the wages she would otherwise have earned but for injury and that this occurred on the day she ceased work and her claim under s40 commenced. This meant that the deemed date of injury within the meaning of s16 was 12 February 1996. She said that the compensation to be awarded was thereby payable by the insurer on risk at that time ...”.
In that case there had been absence from work some years before for which compensation had been paid by an earlier employer. I am of opinion that the case referred to does not support the proposition which the Arbitrator said it stood for.
Gow is said by the Arbitrator to justify the conclusion to which he came. In that case Geraghty J at paragraph 14 said that when dealing with section 16(1)(a) one had to “suppress the dictates of logic and to put one’s sense of reality to rest”. The worker in that case had retired in 1991 and made a claim for bodily and facial disfigurement by reason of sun exposure in 2001. His Honour held that the date of injury was the date the claim was made, there being no prior incapacity relating to injury to the worker’s skin.
It is, in my opinion, quite clear on the authorities that there can be different dates of injury for different purposes and the deemed date of injury in respect of the incapacity for which compensation was claimed from 1993 up to 1998 can only be considered a deemed date of injury so far as the hospital is concerned.
In my opinion the Arbitrator erred in failing to order compensation payable from 14 October 1993 to 2 August 1998 be paid by the hospital. The next question is whether the bakery is liable to make any payments of compensation at all or whether the liability remains that of the hospital.
The bakery submits that the evidence was not sufficient for the Arbitrator to find that employment there was a substantial contributing factor to the worker’s injury. This requires a careful examination of the reasons given by the Arbitrator for deciding that the employment at the bakery was a substantial contributing factor to the worker’s injury.
The relevant parts of the Arbitrator’s reasons in relation to the liability of the appellant appear to be as follows. He notes in paragraph 23 that Dr Long had concluded that any permanent impairment suffered by the worker was as a result of her work with the hospital and there was no permanent impairment attributable to her work with the bakery. He noted that this was by section 326(1)(b) of the 1998 Act to be conclusive. In paragraph 26 he notes that there is a difference of opinion as to whether her work with the hospital and the bakery has aggravated or exacerbated the condition which she has. In paragraph 28 he notes that Dr Long says that there was no deterioration attributable to her work with the bakery but the Arbitrator thought that the mere fact that there was aggravation was enough to satisfy section 4(b)(ii) of the 1987 Act, thus making the injury suffered by the worker an injury suffered in the course of employment with the bakery. At paragraph 33 the Arbitrator notes that the worker obtained work with the bakery and says that the medical evidence is that this work aggravated her degenerative condition resulting in incapacity when she ceased work with the bakery on 4 January 1999. In paragraph 36 the Arbitrator says this: “[t]he medical reports in particular that of Dr Long show that employment with the second respondent (the bakery) has been a substantial contributing factor to the aggravation or exacerbation of the injury (disease)”.
I have already set out in summary form what the various medical opinions were. I must say that I am quite unable to see that Dr Bentivoglio touches upon the effect of work at the bakery at all. In relation to Dr Long, he does express the opinion on page 4 of his report that the worker’s previous symptoms appear to be aggravated by her work at the bakery. On page 9 the doctor says this: “Her symptoms, again without specific history of injury, were again aggravated throughout the approximately twelve months’ employment with Morall’s (sic) Bakery”. In relation to permanent loss of efficient use the doctor has replied to the question “Is apportionment between these several accidents necessary?”. The answer “No”. He states that he has apportioned the impairment between the various accidents in columns 1 and 2 of the table. On page 13 in relation to permanent loss of use and impairment he says the following: “I would not associate any permanent impairment with her work at Morall’s (sic) Bakery”. Despite the doctor’s views which I have set out above, the summary table at the end of the Certificate attributed all of the losses and impairments to the injury of 5.01.1999 which accords with the deemed date of injury in the referral by the Arbitrator. Contrary to the doctor’s statement, there has been no apportionment between the several accidents. It does appear a somewhat unsatisfactory state of affairs however, it follows from the manner of referral to the Approved Medical Specialist by the Arbitrator.
It appears to me that there is no real evidence which would support the view that the worker’s employment at the bakery played a substantial role in creating incapacity or contributed to the losses of use and impairments which she claimed. The question arises whether section 16 of the 1987 Act requires the imposition of all liability of the bakery. I do not think that it does. Section 16 deals with the aggravation, acceleration, exacerbation or deterioration of a disease and provides in sub-paragraph (b) as follows:
“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.”
It should be noted that the injury is the aggravation etc and not the underlying disease.
The concept of “substantial contributing factor” was introduced into the 1987 Act by Act 120 of 1996. A new section 9A was inserted containing the words “substantial contributing factor”. At the same time section 15 of the Act was amended to insert the word “substantial” before “contributing factor”.
Section 9A applies to all injuries except (by reason of section 9A(4)) those referred to in sections 10, 11 and 12 of the Act. Thus in respect of a case like this which involves the aggravation of a disease under section 16, the concept of substantial contributing factor has it seems to be applied twice. Firstly, by section 9A the employment must be a substantial contributing factor to an injury which is an aggravation etc of a disease. Secondly, by 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 etc. The question arises in connection with section 16 whether the employment with the last employer must be a substantial contributing factor to the aggravation etc of the disease or whether that employment must be of the same nature as other earlier employment, with the totality of such employment being a substantial contributing factor to the aggravation of the disease. Is the concept in section 16 of employment that was a substantial contributing factor to an aggravation etc akin to the concept in section 15(1)(b) of employment to the nature of which the disease is due?
Apart from authority, I should have thought that either view was open, however if a finding of aggravation etc of a disease is made as a result of certain employment, it would seem that necessarily that employment must be a substantial contributing factor to the aggravation. Thus, the word ‘substantial’ in section 16(1)(b) would be redundant. There is however authority to which I will now turn.
In Maher v Brambles Australia Limited t/as Wreckair Hire (1998) 17 NSWCCR 334 (‘Maher’) Neilson J dealt with a case of aggravation of degenerative changes. There was however only one relevant employer from 1985 to 1997. His Honour was not persuaded that the applicant’s employment was a substantial contributing factor to the exacerbation of degenerative disease in the worker’s thoracic and lumbar spines. There was, it seems, a lack of evidence in this regard. Such evidence may have overcome the deficiencies which his Honour saw in the case. The headnote of that case is in part as follows:
“(2) The addition of the term ‘substantial’ in the expression ‘substantial contributing factor’ in s9A and s16(1)(b) implies a causal relation between employment and injury more than that the injury arose out of the employment. In applying these provisions regard is to be had to all the causal factors contributing to the injury to determine whether employment was a ‘substantial’ factor, i.e. a weighty, big or great factor. Mercer v ANZ Banking Group Ltd (1998) 17 NSWCCR 265 and Stewart v NSW Police Service (1998) 17 NSWCCR 202 followed.
(3) All the employment/causal connotations in the provisions of s9A of the Act are imported into the provisions of s16(1)(b) of the Act. Accordingly, in applying the latter provisions to the exacerbation of a pre-existing idiopathic disease, the matters referred to in s9A(2), in particular par (d) and par (e), are to be taken into account and the provisions of s9A(3) are to be applied.
(4) Pursuant to s9A(1), the onus of proving that an applicant’s employment was a substantial contributing factor to the exacerbation of a pre-existing idiopathic disease on or after 12 January 1997 resides with the applicant. Here the onus was not discharged. Mercer v ANZ Banking Group Ltd (1998) 17 NSWCCR 264 referred to.
(5) The mere fact that the only injurious event identified in evidence in the proceedings for compensation is the exacerbation of a pre-existing idiopathic disease and the only identified contributing factor to that exacerbation is the heavy work performed by the applicant over a period of time, does not in itself prove that the employment was a substantial contributing factor to the exacerbation having regard to considerations referred to in s9A(2)(d) and s9A(2)(e) and the application of s9A(3)(b).”
His Honour regarded the matters to be taken into account in determining whether employment was a substantial contributing factor enumerated in section 9A(2) as being against the proposition that heavy work over a number of years must be considered a substantial contributing factor to the exacerbation of a pre-existing disease.
Burke J in Harpur v State Rail Authority (NSW) & Anor (1999-2000) 19 NSWCCR 256 considered the question. In that case there were two employers, State Rail Authority (‘SRA’) and later Rail Services Authority (‘RSA’). The claim against the first employer was settled and proceeded against the second only. As against that employer, nature and conditions of employment from 1 July 1996 to 27 April 1998 were relied on together with a specific incident on 14 April 1998. The worker had been employed as a fettler and later as a flagman. Both jobs involved walking on uneven surfaces, ballast and access tracks. The question was whether the work with RSA was a substantial contributing factor to his ankle injury. His Honour noted at paragraph 14 as follows:
“The temporal sequence of events suggests a change in the degree of disability and incapacity around this time. However, other than superficially, it does not, of itself, establish the incident as the probable reason for the change other than as a post hoc, propter hoc inference. Less so does this mere change inculpate the general nature of the work.”
On the evidence his Honour found that one of the factors leading to deterioration was the general work and the incident with RSA. He noted that prior to 12 January 1997, when section 9A commenced, that finding would conclude the matter apart from consideration of the principles in Cluff v Dorahy Bros [1979] 2 NSWLR 435, the headnote of which he cites at paragraph 48. It is not necessary to set that passage out here.
His Honour in paragraphs 83 to 86 of his reasons considers the factors referred to in section 9A(2)(a) to (f). His Honour concluded in paragraphs 87 and 88 as follows:
“87.Taking such considerations into account it appears to me that, while certainly a factor in the aggravation of the disease, the work and incident were not collectively a substantial contributing factors to such aggravation. For the purposes of this matter, the antecedent condition of the ankle could be viewed as if it were an idiopathic problem.
88.Even if, contrary to that view, it was a substantial factor, the question would remain whether the incapacity resulted from the relevant injury as distinct from the underlying disease. Only a small proportion of the itself minor aggravation occurring during the employment with the second respondent was contributed by the effects of ‘injury’. In the overall scheme of things that degree of aggravation was but a straw in the wind. The incapacity and the need for subsequent surgery probably resulted from the prior work with SRA.”
Burke J again considered the question in Cant v Catholic Schools’ Office (2000) 20 NSWCCR 88 (‘Cant’). In that decision his Honour referred to his earlier decision in Harpur as well as that of Neilson J in Maher. In the case of Cant there was only one incident causing an aggravation of a diseased spine. In that case the worker succeeded and his Honour said:
“21.What constitutes relevant injury is defined in s4 of the Act. That encompasses three elements that might loosely be categorised as frank injury, employment disease and aggravation of any disease. As expressed above, I am of the view that the applicant’s injuries fall within the provisions of s4(b)(ii) being:
‘the aggravation acceleration exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration.’
22.If that be so, then s9A requires that the employment be a substantial contributing factor to the aggravation etc of the disease as distinct from the disease itself. That poses the conundrum raised in addresses. If the effect of the employment is to produce a 1% worsening of the disease process, does the section merely require that the employment be a substantial contributing factor to that 1% deterioration rather than to the overall disease? If one just substitutes the words of s4(b)(ii) for the word ‘injury’ appearing twice in s9A it certainly seems tolerably clear that the employment is merely required to substantially contribute to the minor aggravation. One gets the collective provision:
‘No compensation is payable under this Act in respect of an aggravation acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration unless the employment concerned was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration.’
23.That gets rather repetitive but conveys the message that the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is a contribution to the aggravation not to the overall disease.
24.Mr Kops for the respondent submits that such an approach effectively emasculates the operation of s9A. It certainly curtails its operation where the injury in question falls within s4(b)(ii) but not in the least where the injury falls within s4(a) or s4(b)(i). It is a construction that I suggested in Harpur v State Rail Authority (NSW) (2000) 19 NSWCCR 256 at [78]-[79] – perhaps not convincingly – and I note the apparent reluctance of Neilson J to raise this approach in Maher v Brambles (1998) 17 NSWCCR 334 where it would appear to have been equally applicable or inapplicable as the case may be.
25.This approach may not appear to meet the objective stated in the Second Reading Speech cited by the President in Mercer v ANZ Banking Group Limited (2000) 20 NSWCCR 106 at [12] as designed to:
Limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury or disease.
It certainly does so where the injury is injury simpliciter (s4(a)) and where the disease is contracted in the course of employment (s4(b)(i)) but, in the absence of amendment to the definition of injury in s4(b)(ii) or some specific application in s9A itself to the situation, if intended to debar compensation unless the employment was a substantial factor in the whole evolution of disease process, it does not appear to have achieved that outcome.”
It seems to me that none of these cases, apart perhaps from Harpur, answers the question which I have posed in paragraph 51.
The Court of Appeal in McMahon v Lagana & Anor [2004] NSWCA 164 held that the question whether employment was a substantial contributing factor to an injury is a finding of fact and is a matter of impression and degree. This statement was referred to with apparent approval in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344. I am consequently reluctant to interfere with the Arbitrator’s finding on a matter of fact. I am however unable to see that the work at the bakery was other than a temporary aggravation of her symptoms and I consider that the ongoing liability for weekly compensation and lump sum compensation must fall on the hospital. The Arbitrator fell into error, in my opinion, in finding on the evidence that employment at the bakery was a substantial contributing factor to the worker’s injury being aggravation etc of pre-existing disease. It appears from the Schedule of Earnings filed by the worker’s solicitors that for the time the worker was employed at the bakery there was a weekly loss of $134.87 per week. This must, it appears to me, to be met by the hospital also. Compensation is payable solely by the hospital and that liability will fall upon the last insurer of the hospital.
The award of weekly payments does appear to be attended by certain errors on the part of the Arbitrator. The reference to section 38 is puzzling since no attention has been directed to this in the Arbitrator’s reasons. I assume that this refers to total incapacity and that the correct reference is section 37. There are times when the stated periods of partial and total incapacities overlap and there are periods of stated partial incapacity where compensation has been awarded under section 38 (? section 37) presumably on the basis of total incapacity. These problems are totally insoluble by me at this stage. No appeal has been brought against the weekly payments except insofar as the award purported to be made under section 38. In the circumstances I propose to remit the matter to the Arbitrator to determine in accordance with these reasons. I would prefer to have entered a detailed award for weekly payments as I have outlined but for the reasons I have given I am unable to do so.
DECISION
The decision of the Arbitrator dated 14 March 2005 is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons.
COSTS
The second respondent to the appeal, Bourke District Hospital, is to pay the costs of the appellant and the respondent worker.
Anthony Candy
Acting Deputy President
30 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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