MPGTC Pty Limited v Jones
[2019] NSWWCCPD 57
•8 November 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | MPGTC Pty Limited v Jones [2019] NSWWCCPD 57 |
| APPELLANT: | MPGTC Pty Limited |
| RESPONDENT: | Timothy Jones |
| INSURER: | Employers Mutual NSW Limited |
| FILE NUMBER: | A1-718/19 |
| ARBITRATOR: | Mr J Harris |
| DATE OF ARBITRATOR’S DECISION: | 16 April 2019 |
| DATE OF APPEAL DECISION: | 8 November 2019 |
| SUBJECT MATTER OF DECISION: | Factual findings – whether material facts were overlooked or misconstrued; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 considered; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr L Morgan, counsel | |
| Wyatts Lawyers & Advisors | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 16 April 2019 is confirmed. |
INTRODUCTION
The issue in dispute on appeal is whether the worker’s right hip condition was caused by his accepted left ankle injury. Specifically, whether Mr Jones’ altered gait caused or aggravated any of Mr Jones’ arthritic hip condition as articulated by orthopaedic surgeon, Dr Bodel. This involves the consideration of mixed questions of fact and expert medical testimony.
BACKGROUND
On 23 May 2004, Mr Jones sustained an accepted injury to his left ankle during the course of his employment with the employer as a painter, after falling from atop a bench which collapsed. Following the incident, Mr Jones filed a workers compensation claim with Employers Mutual NSW Limited (the insurer), which was accepted. Mr Jones returned to work shortly after the incident and consequent to that injury underwent a number of surgical procedures to his left ankle over several years.
Mr Jones began to experience pain in his right hip sometime between 2005 and 2007 (dates respectively noted by rehabilitation physician Dr Sun and Mr Jones). Mr Jones underwent surgery in respect of his right hip in 2009 and had a right total hip replacement in 2011.
On 15 December 2017 Mr Jones made a claim for lump sum compensation for 29% whole person impairment in respect of his left ankle and right hip as a consequential condition, relying on the assessment by Dr Bodel.
On 23 March 2018, the insurer issued a s 74 notice denying liability on the basis that Mr Jones’ right hip condition did not result from the left ankle injury sustained on 23 May 2004.
On 14 February 2019, Mr Jones filed an Application to Resolve a Dispute (ARD) with the Commission.
On 15 April 2019 the matter was heard before Arbitrator Harris. During submissions before the Arbitrator, counsel for the employer accepted that Mr Jones’ left leg altered gait was due to the left ankle injury.
On 16 April 2019, Arbitrator Harris provided his ex tempore decision and issued the Certificate of Determination.
ON THE PAPERS
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 Nos 1 and 6; the documents that are before me, and the submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
During the hearing, the Arbitrator advised the parties that given the high volume of material in the matter, he would not go to the material unless it was specifically drawn to his attention. The parties accepted this course of action and ultimately the only evidence referred to was Mr Jones’ statements and the reports of Drs Boyle, Bodel, Rimmer and Sun. No issue was taken with this approach at first instance or in this appeal.
The worker’s evidence
In a statement dated 12 April 2017,[1] Mr Jones states that following his left ankle injury and both surgeries he had an altered gait and significantly favoured his right side while undertaking work and domestic duties. He states his role as a painter was very physical and required him to constantly bend, kneel, squat and climb up and down ladders while carrying paint and tools. Mr Jones states he protected his left ankle, for example by kneeling on his right knee to avoid compressing the left ankle joint. While climbing a ladder he would always favour the right side by leading with his right foot. Mr Jones states that at the end of each day he noticed his ankle would become very stiff and painful causing his limp to worsen. Mr Jones also gives non-work examples of where his left ankle caused problems such as grocery shopping and the like.
[1] Application to Resolve a Dispute (ARD), pp 1–4.
In his statement, Mr Jones states he started noticing pain and discomfort in his right hip in around 2007. However, it was not until 2009 that he was forced to stop work due to the pain and discomfort in both his left ankle and right hip. Mr Jones then attended his general practitioner, Dr Ramakrishna, who referred Mr Jones to Dr Boyle for management of his right hip.
Mr Jones states he underwent surgery to the right hip in 2010 but the pain continued and in 2011 Dr Boyle performed a total right hip replacement. Mr Jones says that he did not discuss his left ankle injury with Dr Boyle.
Mr Jones refers to subsequent third ankle surgery involving arthrodesis by Dr Negrine on 29 September 2015. Mr Jones explains that the suggestion of a link between the left ankle condition and the right hip was not considered until he consulted his lawyers in November 2016.
At paragraph 21 of his statement Mr Jones states:
“In hindsight, I believe that from the time of the original ankle injury in May 2004 up until I stopped work in 2009, the constant favouring of my right side has caused my right hip to rapidly deteriorate.”
The learned Arbitrator gave no weight to this paragraph, for reasons outlined in the discussion below.[2]
Medical evidence
[2] Transcript of Reasons (T), Jones v MPGTC Pty Ltd (WCC 718/19, Arbitrator Harris, 16 April 2019) 4.29.
Dr Richard Boyle – orthopaedic surgeon
Dr Boyle, Mr Jones’ treating surgeon, provided a report dated 21 August 2017.[3] The report sets out a number of matters and answers a number of specific questions. Unfortunately, neither the Arbitrator below nor I were taken to a document showing those questions and one is left to speculate what the questions were which the report answers.
[3] ARD, pp 27–28.
Dr Boyle noted that he first saw Mr Jones in April 2009 although there was no specific mention of a contralateral ankle injury or problems. He noted that investigations at the time best described a femoroacetabular impingement and that Mr Jones underwent hip arthrotomy on 23 September 2009. There was some but not complete relief following that operation.
Subsequent review on 5 November 2009, 8 April 2010 and 10 June 2010 was occasioned with plain radiology which revealed osteoarthritis in the right hip and the right knee.
Mr Jones was reviewed again by Dr Boyle in late 2010 where a decision was made to proceed with the total hip arthroplasty. The right total hip arthroplasty was performed on 20 April 2011 and the review in that year and the following year showed improvement in the right hip symptomatology. Dr Boyle noted that he had not seen Mr Jones personally since 2012 and any further comment would require a further examination.
The doctor then proceeded to answer a number of questions. In respect to questions 2 and 3 the doctor said as follows:
“2. I am not aware of a specific association with ankle injuries resulting in contralateral hip problems, but certainly could not argue against the fact that an alteration in gait pattern could indeed alter the wear pattern in the hip itself. Having said that his hip problem was indeed femoroacetabular impingement which is more likely an antomical [sic, anatomical] variant than a secondary problem.
3. In my opinion his workplace accident on the 23rd May 2004 was not the substantial contributing factor to his right hip condition.”[4]
[4] ARD, p 28.
Dr James Bodel – orthopaedic surgeon
Dr Bodel provided a medico-legal report for Mr Jones dated 15 August 2017.[5] Dr Bodel obtained a detailed history of the injury and problems with the left ankle, which I do not repeat here. Dr Bodel noted Mr Jones developed a gradual onset of right hip pain which came on over time without accident or injury and that he first became symptomatic in about 2007. A subsequent total hip replacement performed in 2011 produced a good outcome.[6]
[5] ARD, pp 15–23.
[6] ARD, p 17.
Dr Bodel referred to Mr Jones’ statement noting deterioration of the ankle over a period of time. Dr Bodel noted as follows:
“He also confirms that in around about the year 2007 he started to notice the pain in the region of the right hip. He put up with that until about the year 2009. By then he had been off work for about a year. He did see his local doctor and was referred to Dr Richard Boyle for an opinion about his hip. He had the total hip replacement done in 2010 [sic]. I understand that this was some form of debridement procedure and then a total hip replacement was done in 2011 and he has done very well from that point of view.”[7]
[7] ARD, p 19.
Dr Bodel opines that if Mr Jones has a disease process in the region of the right hip, as he strongly suspects, then it is due to the nature and conditions of his employment, particularly after the ankle injury which could cause aggravation, acceleration, exacerbation and deterioration of the disease process in the region of the right hip.
Dr Bodel notes that he has seen the report from Dr Boyle dated 21 August 2017. After referring to the report of Dr Boyle, Dr Bodel states:
“I tend to hold the same view in regard to direct causation but I could accept that the abnormal gait pattern may cause aggravation, acceleration, exacerbation and deterioration of a disease process in this circumstance.”[8]
[8] ARD, p 21.
Dr Bodel provides an “impairment assessment” in a report dated 3 October 2017. In addition to the assessment of impairment, Dr Bodel makes some further comments on causation, stating:
“At this stage it is probable, on the basis of the medical evidence available, that there is an indirect causal link between the original injury to the left foot and ankle on 23 May 2004 and the development of the aggravated arthritic process in the region of the right hip that led to the total hip replacement. This is on the basis of the fact that this gentleman was asymptomatic in the region of the right hip at the time of the fall and for about three years after the fall. If he did not have an underlying disease process (? osteoarthritis) then he would not have developed increasing pain and stiffness in the region of the right hip that led to the total hip replacement.
I am therefore satisfied that on the balance of probabilities with the medical evidence available at the moment that there has been aggravation, acceleration, exacerbation and deterioration of a disease process in the region of the right hip that led to the need for the total hip replacement and that need has arisen as a consequence of favouring that right side following the injury to the left foot and ankle which had left him with long term pain and stiffness and limping.”[9]
[9] ARD, p 26.
Dr Stephen Rimmer – orthopaedic surgeon
Dr Rimmer provided a medico-legal report for the employer dated 14 February 2017.[10] In that report Dr Rimmer detailed Mr Jones’ left ankle injury and assessed his whole person impairment. Dr Rimmer provided a further report dated 12 February 2018 addressed to Employers Mutual Limited.[11] Within that report Dr Rimmer addressed a number of aspects in respect of the left ankle and noted that due to the gradual onset of pain in the right hip, Mr Jones was referred to Dr Richard Boyle. Dr Rimmer refers to the report of Dr Boyle setting out the history of treatment for the right hip.
[10] Reply, p 16–20.
[11] Reply, p 21–26.
Dr Rimmer was asked a number of questions in relation to Mr Jones’ status, in particular as follows:
“Q5. Do you consider the worker’s right hip injury condition and symptoms are secondary to, or consequential on the work related injury to the worker’s left ankle on 23 May 2004? Please provide detailed reasoning for your opinion.
[Answer] On the balance of probabilities I do not. This is concluded from the history, examination and review of the limited investigations. I would like to highlight the reference to Dr Boyle’s correspondence dated 21 August 2017 where on page 2.3 ‘in my opinion his workplace accident on 23 May 2004 was not the substantial contributing factor to his right hip condition.’ I am in agreement with this.”[12] (emphasis in original)
[12] Reply, p 25.
In a further short report dated 12 February 2018,[13] Dr Rimmer again addressed the right hip stating; “I do not believe this is related to the events of May 2004 given the reasons above.” (emphasis in original) The reasons above are clearly a reference to the comments made by Dr Rimmer set out in [29] above.[14]
[13] Reply, p 27–28.
[14] Reply, p 25.
Dr Clive Sun – Rehabilitation Physician
In a report dated 28 March 2006, Dr Sun recorded “intermittent pain over the right hip in the last six months up to intensity of 7/10”.[15]
[15] ARD, p 12.
THE ARBITRATOR’S REASONS
The matter was heard on 15 April 2019 before Arbitrator Harris, who delivered his decision orally on 16 April 2019.
The Arbitrator referred to the principles relevant to consequential condition cases as outlined by Kirby P in Kooragang Cement Pty Limited v Bates[16] and Justice Basten in State of New South Wales v Bishop.[17] The Arbitrator also noted the use of common sense in evaluating causation was recently discussed by McColl JA in Tudor Capital Australia Pty Ltd v Christensen.[18]
[16] (1994) 35 NSWLR 452 (Kooragang).
[17] [2014] NSWCA 354 (Bishop).
[18] [2017] NSWCA 60 at 364 (Christensen).
The Arbitrator paid no regard to the report of Dr Rimmer as he posed and answered the wrong questions. This was accepted by the employer and it was therefore not taken into account. Additionally, the Arbitrator gave no weight to paragraph 21 of Mr Jones’ statement on the basis that it expressed a medical opinion.
The Arbitrator noted the relevance of the timing of the onset of symptoms was dependent upon the medical evidence.[19] The Arbitrator accepted Mr Jones’ evidence that he had no prior hip problems prior to 2005 (according to Dr Sun), and that the pain deteriorated over time until Mr Jones eventually sought medical treatment in 2009. The Arbitrator noted that it was clear from the medical evidence that Mr Jones has two medical conditions in his right hip, namely femoro acetabular impingement which treating surgeon Dr Boyle describes as “an anatomical variation appearing in the right hip” and osteoarthritis in the right hip.[20]
[19] T 16.30–32, Bishop per Basten [20].
[20] T 17.16–27.
The Arbitrator noted Dr Boyle acknowledged the alteration of gait pattern “could alter the wear pattern in the hip itself” and found that this reference to wear and tear was more likely related to osteoarthritis than an anatomic variant in the hip itself.[21] The Arbitrator further found that Dr Bodel provided a proper basis for his view that there had been an aggravation of the disease process, that is, the osteoarthritis in the hip.[22] Using common sense and logic, the Arbitrator further found that Mr Jones’ condition continued to deteriorate in circumstances where he had a continued altered gait.[23]
[21] T 18.12–23.
[22] T 19.25–29.
[23] T 19.34–20.5.
The Arbitrator ultimately found as follows:
(a) The femoral acetabular impingement in the right hip was not caused or aggravated by the accepted left ankle injury.
(b) The applicant suffered aggravation of the right hip osteoarthritis by the accepted left ankle injury.
In those circumstances, the Arbitrator found that a portion of Mr Jones’ right hip condition was aggravated by the accepted left ankle injury. The matter was remitted to the Registrar for referral to an AMS with the date of injury as alleged, the body part as pleaded together with the amendment made at the application.
GROUNDS OF APPEAL
The appellant employer appeals the Arbitrator’s determination on the following grounds:
(a) Ground One: The Arbitrator made a critical error of fact in proceeding on the basis that the operating surgeon had conceded that the cause of the worker’s right hip pain was inter alia degenerative change.
(b) Ground Two: The Arbitrator erred in determining that the evidence before him satisfied him that the right hip aggravation resulted from the injury of 23 May 2004.
(c) Ground Three: The Arbitrator erred in coming to a conclusion that the worker had discharged the burden of establishing on the balance of probabilities that an altered gait made a material contribution to the need for hip surgery.
(d) Ground Four: The Arbitrator erred in accepting that Dr Boyle’s reference to “the wear pattern in the hip itself” was a reference to the osteoarthritis condition. This was not a conclusion available to him on the evidence.
SUBMISSIONS
Appellant’s submissions
Ground One
In respect of Ground One, the employer refers to the report of Dr Boyle, in particular the passage outlined at [22] above regarding the nature of Mr Jones’ hip problem as “femoroacetabular impingement which is more likely an antomical [sic, anatomical] variant than a secondary problem”.[24] The employer submits the Arbitrator erred by proceeding on the basis that Dr Boyle’s opinion included the proposition that Mr Jones’ altered gait pattern was at least one of the causes of the worker’s pain and his need for surgery. The employer argues the evidence did not permit the Arbitrator to proceed on this basis and submits that Dr Boyle’s opinion was unambiguous as to the nature of Mr Jones’ hip problem and “diametrically opposite to the conclusion reached by the Arbitrator.” This was a critical error given Dr Boyle’s role as treating surgeon.
[24] ARD, p 28.
The employer refers to the Arbitrator’s reference to the dicta of Herron CJ in EMI (Australia) Ltd v Bes[25]: “It is only when medical science denies that there is any such connection that the judge is not entitled [to find to the contrary]”. The employer submits it is clear that Dr Boyle denied the connection and such a misreading of the evidence (in circumstances where even Dr Bodel’s evidence in support of his conclusion is “lukewarm”) was a critical error of fact.
[25] [1970] 2 NSWR 238; WCR 114 (Bes).
Ground Two
The employer refers to the decision of Kirby P in Kooragang in respect of causation. The employer reiterates its submission that material evidence was provided by Mr Jones’ treating surgeon Dr Boyle, noting the Arbitrator accepted Dr Boyle’s opinion that the femoroacetabular impingement was an anatomical variant and that it is unrelated to any altered gait.
The employer submits that the Arbitrator erred in preferring evidence from Dr Bodel on the following basis. Firstly, the employer submits Dr Bodel’s opinion that the right hip symptoms would not have manifested and deteriorated if it were not for an underlying disease process of osteoarthritis ignores the condition of femoroacetabular impingement suffered by the worker and the symptoms arising from that condition. Secondly, the employer submits Dr Bodel’s view that the arthritic process in the region of the right hip led to the total hip replacement is at odds with the opinion of Dr Boyle.
Accordingly, the employer submits the Arbitrator fell into error in accepting Dr Bodel’s evidence and determining that this evidence satisfied him that the right hip aggravation resulted from the injury of 23 May 2004.
Ground Three
The employer submits that the Arbitrator made a clear finding that the impingement was not work related and further submits that Dr Boyle considered and rejected the proposition that Mr Jones suffered from an aggravation of his right hip osteoarthritis. Further, it is submitted that Dr Boyle’s reports do not opine that there were two separate reasons for the need for Mr Jones’ hip surgery, as the Arbitrator found (namely the two medical conditions of femoroacetabular impingement and osteoarthritis).
The employer notes the importance the Arbitrator placed on the evidence of Dr Boyle as treating surgeon and further notes the only compensation claimed in the ARD in relation to the right hip is lump sum compensation as assessed by Dr Bodel in his report of 3 October 2017.[26] Dr Bodel’s assessment was predicated on Mr Jones having undergone total hip replacement as a result of the work injury. As such, the employer submits the Arbitrator made a critical error of fact in concluding that Mr Jones had discharged the burden of establishing on the balance of probabilities that an altered gait made a material contribution to the need for hip surgery.
[26] ARD, p 24.
Ground Four
The employer submits the Arbitrator’s conclusion that Dr Boyle’s opinion: “an alteration in gait pattern could indeed alter the wear pattern in the hip itself,”[27] was more likely referable to wear and tear of osteoarthritis rather than the femoroacetabular impingement, was not available on the evidence. The employer submits that although Dr Boyle’s report of 21 August 2017 refers to investigations revealing osteoarthritis in the right hip, he does not reference that specific diagnosis in making his abovementioned comment, and the Arbitrator accordingly was in error.
Respondent’s submissions
[27] ARD, p 28.
Ground One
Mr Jones refers to the decision of Roche DP in St George Leagues Club v Wretowska[28] in making the broad submission that the appeal attempts to proceed on an assumption an appeal is available to a party where the analysis of factual matters that founded the Arbitrator's ultimate determination was contrary to an analysis of those same factual matters the appellant was prepared to accept.
[28] [2013] NSWWCCPD 64 (Wretowska).
Mr Jones submits that the Arbitrator properly confirmed that Mr Jones must prove his case on the balance of probabilities and the question of causation was one of fact which depended on the circumstances of the particular case.[29] Mr Jones submits the Arbitrator closely considered the medical evidence in the matter and that it was open to the Arbitrator to accept his evidence with respect to the deterioration of his hip condition.[30] Mr Jones submits that the Arbitrator’s approach to the evidence was logical and consistent with the approach expounded by Basten J, Allsop P and McColl JA in Onesteel Reinforcing Pty Ltd v Sutton,[31]and that he appropriately delineated the basis of his opinion for accepting Dr Bodel[32] in making his finding on the balance of probabilities, that there had been an aggravation, acceleration, exacerbation and deterioration of the disease process in the hip occasioned by abnormal gait.
[29] Referring to Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, Kooragang and Bishop.
[30] T 16–17.
[31] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
[32] T 19.25–20.5.
Ground Two
Mr Jones repeats his submissions in respect of Ground One and notes that the employer simply argues that its interpretation of one piece of evidence should have been accepted in preference to another interpretation. Mr Jones submits the Arbitrator was entitled to weigh up all the evidence and make his decision with reference to everything that was before him, particularly having regard to the approach in Bes.
Ground Three
Mr Jones submits the Arbitrator's reasoning process was clear and consistent with authority that there can be multiple causes of damage suffered: ACQ Pty Limited v Cook[33] and in Sutherland Shire Council v Baltica General Insurance Co Ltd where Clarke JA said:
“ ... I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity.”[34]
[33] [2009 HCA 28: 237 CLR 656, [27].
[34] (1996) 39 NSWLR 87;12 NSWCCR 716 at 730–731.
Mr Jones submits the Arbitrator did not err and revealed in his reasons the material which rationally supported his conclusion that there were two pathologies in Mr Jones’ right hip.[35]
[35] AMP Capital Investors Limited v Transport Infrastructure Development Corporation [2008] NSWCA 325, per Hodgson JA.
Ground Four
Mr Jones repeats his submissions in respect of Ground One.
Appellant’s submissions in reply
The employer submits, contrary to Mr Jones’ view, that its grounds of appeal clearly identify errors of fact, law and discretion by the Arbitrator and that the requriements of an appeal outlined by Roche DP in Wretowska have been met.
The employer further submits that Dr Boyle’s report is unambiguous and rejects the Arbitrator’s conclusion that that the opinion of Dr Boyle is consistent with his findings that the right hip condition results from the left ankle injury of 23 May 2004. On this basis, the employer disputes the respondent’s assertion that the Arbitrator’s approach to reaching his findings was one of common sense and logic.
PRINCIPLES ON APPEAL/RELEVANT LEGAL PRINCIPLES
In the appellant employer’s four grounds of appeal, essentially under challenge are various findings of fact and assessments of the expert evidence made by the learned Arbitrator. The appellant alleges not only were factual errors made, but also in Grounds Two and Three submits that the error of fact meant that the worker did not discharge his burden of proof. The respondent worker submits that the appellant employer’s real complaint is that the Arbitrator’s decision was contrary to the analysis of the same factual matters that the appellant was prepared to accept and this does not reveal error.
Given the issues between the parties, it is necessary therefore to set out the principles to be applied on appeal. These principles are found in s 352(5) of the 1998 Act and provide:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
It is therefore necessary for the appellant to demonstrate error in the relevant sense (that is of fact, law or discretion) before the Commission can intervene to disturb the learned Arbitrator’s decision.
The power to disturb a finding of fact in the application of s 352(5) of the 1998 Act was considered by the Commission in Raulston v Toll Pty Ltd.[36] In Raulston, Roche DP stated the following principles regarding s 352(5) appeals:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[37]
[36] [2011] NSWWCCPD 25; 10 DDCR 156 per Roche DP (Raulston).
[37] Raulston, [19].
The principles stated in Whiteley Muir & Zwanenberg Ltd v Kerr[38] have been consistently applied in the Commission.[39]
[38] (1966) 39 ALJR 505 (Whiteley Muir).
[39] Bonica v Piacentini & Son Pty Ltd [2019] NSWWCCPD 4; Fairfield City Council v Deguara [2019] NSWWCCPD 1; Reln (Manufacturing) Pty Ltd v Smith [2018] NSWWCCPD 51; Bekkers v State of New South Wales [2018] NSWWCCPD 46; State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26.
Additionally, the factual findings which are under challenge by the appellant involve challenge to the approach taken by the learned Arbitrator in the consideration of the expert medical evidence.
In considering such questions, this Commission has applied the reasoning of Kirby P (as he then was) in Kooragang where his Honour said as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped.”[40]
[40] Kooragang, 463–464.
The principles as outlined by his Honour in Kooragang have been affirmed over the years such that the position in New South Wales can be considered to be settled with respect to this principle.[41] Cases such as Christensen and Bishop have confirmed that this is the position.
[41] Bishop; Christensen per McColl JA 364–367.
Indeed, Christensen was a matter which was very similar to this in that the employer in that case challenged the Arbitrator’s decision, alleging errors of fact that work caused Mr Christensen’s illness. Just as in this case, the employer contended that the evidence was insufficient to support those conclusions. McColl JA in considering these matters said as follows:
“363. Nevertheless, ‘[a]lthough not bound by the rules of evidence, there can be no doubt that the [Workers Compensation] Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings’ and ‘the question of the acceptability of expert evidence will not be one of admissibility but of weight.’[42]
364. The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.[43] In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.[44]
365. The Arbitrator directed himself that he could find a causal connection between ‘stress and the breakdown of [Mr Christensen’s] health allowing the entry into his system of a viral illness, or the subsequent entry of the virus by virtue of the T cell lymphocytes into [Mr Christensen’s] myocardium causing ventricular fibrillation and cardiac arrest’ on the basis that ‘medical science does not say in this individual case that there is no possible connection between the events and the death’ and a ‘commonsense evaluation of the causal chain’.[45]
366. As I have said, in May, the plurality accepted that in determining whether there was an ‘injury’, the evidence may, ‘where appropriate ... take into account common-sense inferences drawn from a sequence of events’.[46] Gageler J in his separate reasons, also accepted that, as the Full Court of the Federal Court held, there were cases where a conclusion of ‘injury’ could be reached ‘on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion’ and that ‘[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case’.[47]
367. However, as I have said, that did not avail the claimant in May, where ‘[c]ommon experience provided no guidance, and the medical evidence was inconclusive.’[48] The temporal coincidence between the onset of Mr May’s dizziness/vertigo and the vaccinations he had received was not sufficient, absent medical evidence, to establish that he had suffered ‘an injury’ in the sense required by the definition.” (emphasis added)
[42] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, [82]–[83], per Beazley JA (Giles and Tobias JJA agreeing).
[43] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, [2].
[44] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, [71], per Heydon JA.
[45] Christensen [269]–[270].
[46] May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 233 FCR 397, [62] (May).
[47] May, [80] (footnotes omitted).
[48] May, [82].
The learned Arbitrator also referred to the principles referred to in Bes where Herron CJ relevantly found as follows:
“Hence the judge in this case, the learned commissioner, was entitled to look at the whole of the facts in the case and, if he thought that the temporal facts and their sequel, the accident, were consistent with the death of the deceased following the syncopal attack, then he was entitled to look for support in the medical evidence and see what the medical scientists were prepared to accept as a possibility reasonably acceptable to the medical experts. His Honour was entitled to find, as he did, that the evidence of Dr Connelley supported the view that he had formed of the probabilities of the case.
… It seems to me that that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the Judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the judge himself has to try.”[49] (emphasis added)
[49] Bes, 119.
Causation, which is in issue in this case, is a matter for the Arbitrator and is a question of fact, in accordance with the principles set out above, which requires a consideration of the facts, including expert evidence, and the application of logic and common sense by the decision maker in deciding which views are to be preferred. In accordance with these authorities, for the Arbitrator to act lawfully in terms of the application of logic and common sense, there must be a basis in the expert medical evidence to support this exercise of logic and common sense.
DISCUSSION
Given the contest in this matter, it is worthwhile to consider the facts which are not in contest. Firstly, there is no dispute about the injury which was occasioned to Mr Jones’ left ankle on 23 May 2004. It was also accepted during the conduct of the hearing before the learned Arbitrator that as a result of the accepted injury to the left ankle, Mr Jones’ gait was altered. Also present in the evidence were unchallenged radiological findings of osteoarthritis in Mr Jones’ right hip. Finally, no challenge was made to Mr Jones’ history that he did not feel any symptoms in his right hip until approximately 3 years after the 2004 ankle injury. This statement can thus be taken as not being in contest. I note that at paragraph 21 of his statement Mr Jones states:
“In hindsight, I believe that from the time of the original ankle injury in May 2004 up until I stopped work in 2009, the constant favouring of my right side has caused my right hip to rapidly deteriorate.”
I note the learned Arbitrator gave no weight to this paragraph on the basis that it is an expression of a medical opinion. I view this as the proper approach.[50]
[50] T4.12–21.
The question which was tried below and which is contested on appeal is whether or not, having regard to the accepted injury to the left ankle, did this create a consequential injury to Mr Jones’ right hip? This involves the consideration of mixed questions of fact and expert medical testimony.
Ground One
Ground One alleges that the learned Arbitrator made a critical error of fact by proceeding on the basis that the operating surgeon, Dr Boyle, had conceded that the cause of the worker’s right hip pain was inter alia degenerative change. Counsel for the appellant says that this was not Dr Boyle’s opinion and states that as Dr Boyle was the operating surgeon, primacy should have been given to his opinion over the views of Dr Rimmer and, more importantly, Dr Bodel.
The learned Arbitrator found as follows:
“I have closely considered the medical evidence in this case. In my view there has been, to some extent, a misunderstanding by counsel as to what is discussed in the two medical reports. In my view the applicant has two medical conditions in his right hip. That is clear from the report of Dr Boyle.
There is no reason why I would not accept the treating surgeon’s report on his examination findings. Dr Boyle, discusses femoro acetabular impingement which he describes as ‘an anatomical variation appearing in the right hip’.
Dr Boyle also states and I accept that the applicant had osteoarthritis in the right hip as shown by subsequent x-rays in 2010 (Application, middle of page 27).
The discussion by Dr Boyle is that femoro acetabular impingement is ‘more likely an anatomical variation than a secondary problem.’ In that regard I reject Mr Morgan’s submission that the doctor was not expressing an opinion on the balance of probabilities. The doctor clearly states that femoro acetabular impingement is more likely an anatomic variant than a secondary problem.
Dr Bodel, whilst briefly referring to Dr Boyle’s opinion does not provide an opinion that the femoro acetabular impingement was caused by altered gait. Accordingly, in my view the medical evidence does not go close to establishing, that the femoro acetabular impingement was either caused, aggravated or as a consequence of the work injury.
However, that is not the extent of the applicant’s right hip condition. The applicant also has osteoarthritis in his right hip as discussed by Dr Bodel and referred to by Dr Boyle. In his first sentence of that critical paragraph of Dr Boyle’s report, the doctor acknowledges and I accept that alteration of gait pattern ‘could alter the wear pattern in the hip itself’. The ‘wear pattern in the hip itself’ in my view, is more likely a reference to osteoarthritis rather than what he describes as an anatomic variant in the hip itself, that is, the femoro acetabular impingement.”[51]
[51] T 17.13–18.21.
Dr Boyle’s report of 21 August 2017 states as follows:
“At this appointment plain radiology revealed osteoarthritis in both the right hip and the right knee.”
And further in the same report:
“I am not aware of a specific association with ankle injuries resulting in contralateral hip problems, but certainly could not argue against the fact that an alteration in gait pattern could indeed alter the wear pattern in the hip itself. Having said that his hip problem was indeed femoroacetabular impingement which is more likely an antomical [sic, anatomical] variant than a secondary problem.”[52]
[52] ARD, pp 27–28.
This ground of appeal asserts, as if a fact, that the learned Arbitrator has made a positive finding that the cause of Mr Jones’ right hip pain was inter alia degenerative change. From the passages which I have extracted above and which have been relied upon by the learned Arbitrator, this submission is not correct. In my view, the learned Arbitrator’s reasons, when construed in their totality, in as much as Dr Boyle’s opinion is concerned, are that Dr Boyle was aware of the radiological findings of osteoarthritis in the right hip and says that he “could not argue against the fact that an alteration in gait pattern could indeed alter the wear pattern in the hip itself.” Bear in mind, this acknowledgment by the doctor takes place in circumstances where there is no dispute that Mr Jones has in fact suffered an altered gait as a result of his accepted left ankle injury. As described in the cases I have set out above (Bes and Christensen) which were referred to by the learned Arbitrator in his lengthy reasons, at most, the learned Arbitrator in the passages I have described has set out the fact that medical science (Dr Boyle in this case) has accepted that there is a possibility that the altered gait pattern could alter the wear pattern in the hip itself. It is also clear that Dr Boyle, having reviewed the radiology which found osteoarthritis in the right hip, reached that conclusion in that knowledge, and this is the basis upon which the Arbitrator has proceeded. I do not accept that the learned Arbitrator has made the positive finding based upon Dr Boyle’s report that is sought to be impugned in Ground One. He has rather remarked that the wear pattern in the hip itself is more likely a reference to osteoarthritis rather than the anatomical variant, femoroacetabular impingement. This is precisely the type of “common sense inference” discussed by McColl JA in May and which is entirely within the learned Arbitrator’s discretion to make. That there is osteoarthritis in Mr Jones’ right hip is not in dispute. It is Dr Bodel’s second report upon which reliance is placed by the learned Arbitrator basing his ultimate conclusion that the altered gait caused aggravation of the underlying (and proven) osteoarthritis in the right hip. The findings made by the learned Arbitrator with respect to Dr Boyle’s views are not factually in error, rather they faithfully reproduce the doctor’s views and consistent with the authorities set out above the Arbitrator is entitled to act “on his own intuitive reasoning” based upon the medical science.[53]
[53] Bes, 119.
Based upon the evidence, the learned Arbitrator was entitled to draw the inference that the wear pattern in the hip was more likely a reference to the osteoarthritis rather than to the anatomical variant. There is no error of the Whiteley Muir type.
Ground One is thus not made out.
Ground Four
Given what I have found in Ground One, it is convenient to deal with Ground Four out of order as it is closely similar to the complaint advanced in Ground One. The learned Arbitrator’s finding with respect to Ground Four is impugned on one basis alone, namely that the conclusion regarding the wear pattern in the hip was not available. It is alleged that it was not open on the evidence for the Arbitrator to draw that conclusion because even though Dr Boyle’s report does refer to the investigations revealing osteoarthritis in the right hip, he did not reference that specific diagnosis in making his above-mentioned comment (that is the comment regarding alteration in gait pattern altering the wear pattern in the hip). This criticism proceeds on the basis that the learned Arbitrator must have this fact established by medical science and that absent, in the appellant’s view, this specific diagnosis, the finding made was not available to the learned Arbitrator. I do not accept that this is a fair reading of the learned Arbitrator’s reasons. The finding is that the wear pattern in the hip is more likely a reference to the osteoarthritis rather than to the anatomical variant. This is an available construction of Dr Boyle’s report which involves no error. The learned Arbitrator has most decidedly not made a finding which is contrary to Dr Boyle’s report, which I consider on any fair reading reveals that Mr Jones does in fact suffer from two problems in his right hip, one being osteoarthritis, the other being the anatomical variant. Dr Boyle himself has described and treated these two conditions as separate when he considers that the hip problem was more likely one (that is the anatomical variant) rather than the other (referred to as the “secondary problem”). This finding was a result of the studied application by the learned Arbitrator of the approach to such questions as outlined in Bes and Christensen as well as the application of a common sense inference discussed in May. I have found in Ground One that this approach was available to the learned Arbitrator. As a matter of fact which was not disputed by the appellant (correctly in my view), Mr Jones suffered from osteoarthritis in his right hip. There is thus a medical basis for the ultimate finding when taken with the lay evidence of Mr Jones.
No error is discerned in the learned Arbitrator’s reasoning and Ground Four is thus not made out.
Ground Two
Ground Two repeats a submission which was made at first instance which was to the effect that the worker, Mr Jones, had failed to discharge his onus of proof. In this appeal ground, the appellant submits that it was not available to the Arbitrator to prefer the evidence of Dr Bodel to that of Dr Boyle. This is consistent with the appellant’s case all along that the treating doctor’s (Dr Boyle) opinion should be given primacy.
With respect to the appellant, that is not the task that was undertaken by the learned Arbitrator. It is clear that the learned Arbitrator carefully reviewed the medical reports and for relevant purposes they were the reports and opinions of Dr Boyle and Dr Bodel. It cannot be said, as asserted by the appellant, that Dr Boyle completely discounted the osteoarthritis in the right hip. He said he “could not argue against” that the altered gait could alter the wear pattern in the hip itself. However, he considers the hip problem was more likely to be the anatomical variant. Dr Bodel went further and considered that the altered gait had aggravated, accelerated or exacerbated the deterioration of the accepted and known osteoarthritis in the right hip. The Arbitrator carefully considered this medical evidence and then superimposed on it the unchallenged evidence from Mr Jones of being asymptomatic in the region of the right hip at the time of the fall and for approximately three years afterwards.[54]
[54] T 19.15–17.
What the learned Arbitrator has done in this regard is undertaken the process of intuitive reasoning based upon available constructions of the scientific evidence and that from the worker Mr Jones. This is precisely the process which cases such as Bes and Christensen say is the proper approach to be taken by the decision maker. In particular, I repeat the passage from Bes, outlined at length at [65] hereof, which says as follows:
“But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable.”
This, with respect, is precisely the process that was undertaken by the learned Arbitrator.
Mr Jones has submitted that this appeal ground in truth argues that the appellant’s interpretation of one piece of evidence should have been accepted in preference to another interpretation. I respectfully accept this submission. No error of approach has been made out.
As a result, Ground Two is not established.
Ground Three
Ground Three continues the appellant’s complaint that Mr Jones did not discharge his burden of proof. In support of this submission, it is asserted that the Arbitrator accepted Dr Bodel’s opinion regarding the relationship of the altered gait and the hip condition which led to the need for total hip replacement. The appellant alleges that the treating surgeon considered and rejected this proposition. Pausing here, I do not read Dr Boyle’s report as putting the position that highly. Dr Boyle clearly said that the hip problem was more likely to have been an anatomical variant rather than the secondary problem.[55] This opinion does not reject the proposition as comprehensively as the appellant’s submission now asserts. Rather, when properly construed, Dr Boyle was considering two problems, one being the anatomical variant, the other being the alteration in gait altering the wear pattern in the hip. Dr Boyle’s opinion was that the anatomical variant is more likely to have been the cause of the hip problem, given the two potential explanations for the hip issue.
[55] ARD, p 28, [2].
I consequently reject this submission.
The appellant then submits that Dr Boyle does not admit that there were two separate reasons for the need for hip surgery.[56] As I have set out above, what Dr Boyle has done is consider the two conditions in the right hip and said that it was more likely that the hip problem was the anatomical variant. The doctor here is weighing two medical problems, and simply coming to a conclusion that one is more likely than the other to have created the need for surgery. It is simply incorrect for the appellant to assert that Dr Boyle identified one reason only for the surgery. This appeal ground also continues the appellant’s argument that Dr Boyle’s opinion, being the treating surgeon, ought have primacy over other opinions.
[56] Appeal submissions, [31].
In my opinion, this appeal ground misstates the views actually expressed by Dr Boyle. Dr Boyle’s report and opinion were carefully considered and construed by the learned Arbitrator consistently with the views expressed by that practitioner. No relevant error has been identified as it is quite clear that when Dr Boyle is considering Mr Jones’ hip condition, he has before him two problems, the femoroacetabular impingement (the anatomical variant) and the alteration in gait affecting the wear pattern in the hip itself. He said one was more likely than the other meaning that Dr Boyle accepts the proposition or the fact that Mr Jones has in fact two problems in his right hip but that it was more likely that only one of them was the cause of the need for hip surgery. The Arbitrator carefully reviewed this medical evidence and as the finder of fact, consistently with the authorities I have referred to above, has reached a view which was available to him on the evidence. None of this involved any error in construction of the medical evidence, to the contrary the approach taken by the learned Arbitrator was consistent with the evidence. No error is disclosed.
Appeal Ground Three is not made out.
DECISION
The facts in this matter as found by the learned Arbitrator have proven to be stubborn. They have been unable to be displaced by the appellant and as a consequence this appeal must fail.
The Arbitrator’s Certificate of Determination dated 16 April 2019 is confirmed.
Judge Phillips
PRESIDENT
8 November 2019
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