Noel's Crane Hire Pty Ltd v Bradley
[2006] NSWWCCPD 213
•31 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Noel’s Crane Hire Pty Ltd v Bradley [2006] NSWWCCPD 213
APPELLANT: Noel’s Crane Hire Pty Ltd
RESPONDENT: Stephen Patrick Bradley
INSURER:GIO General Ltd
FILE NUMBER: WCC 889-04
DATE OF ARBITRATOR’S DECISION: 11 November 2005
DATE OF APPEAL DECISION: 31 August 2006
SUBJECT MATTER OF DECISION: Treatment of the evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Rankin Nathan Lawyers
Respondent: Taylor & Scott Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 11 November 2005, is revoked and the matter is remitted to an arbitrator for redetermination in accordance with the law and these reasons.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 8 December 2005, Noel’s Crane Hire Pty Ltd (‘NCH’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 11 November 2005. The Respondent to the appeal is Stephen Patrick Bradley. NCH’s workers compensation insurer is GIO General Ltd (‘GIO’).
Mr Bradley was born in Ireland on 12 September 1960 and is aged 46. He migrated to Australia with his parents at the age of about 3. Mr Bradley worked as a crane operator from the age of about 22 and commenced employment with NCH as a crane operator on 5 June 2000. Mr Bradley claims to have suffered an injury to the neck in the course of his employment in October 2005. In an attempt to alleviate the symptoms affecting his neck, Mr Bradley underwent a manipulation of his neck by a football team trainer or masseur, Alan Jones, who was a casual acquaintance. Initially, Mr Bradley experienced some relief of symptoms but, after about two weeks, then began to experience increased pain, headaches and a deterioration in his vision.
On 29 October 2000, Mr Bradley had a fall while at home and, on the next day, another fall and convulsions. He was taken to hospital by ambulance and, subsequently, tests showed that he had had a stroke. Mr Bradley remained in hospital until discharged on 21 December 2000. While there was some gradual improvement in his condition thereafter, there is no dispute that the injury caused incapacity and permanent impairment. However, the parties were in dispute over the cause of the injury and whether his employment with NCH was a substantial contributing factor to the injury.
On 27 June 2003, Mr Bradley filed an ‘Application for Determination’ in the Compensation Court of NSW. A hearing commenced in the Compensation Court on 30 October 2003, but was adjourned, and the matter was later transferred to the Commission in 2004. Following a teleconference with the parties on 29 April 2004, the Arbitrator referred Mr Bradley to three Approved Medical Specialists (‘AMSs’) for examination and assessment: Dr Michael Delaney, Ophthalmologist, in respect of Mr Bradley’s loss of vision, Dr Stuart Taylor, Urologist, in respect of his loss of sexual function, and Dr Keith Lethlean, Neurologist, in respect of his brain injury and loss of efficient use or impairment of his neck, right arm and right leg. The Commission issued their three Medical Assessment Certificates (‘MACs’) on 19 October 2004.
Dr Delaney found Mr Bradley to have suffered a permanent loss of visual field (right homonymous hemianopia) as a result of the stroke, giving rise to a 60% permanent loss of sight in both eyes. Dr Taylor found Mr Bradley to have suffered a 40% permanent loss of use of his sexual organs as a result of the stroke. Dr Lethlean diagnosed “cerebral infarction, in vertebrobasilar territory”. He assessed the permanent loss of efficient use or impairment of Mr Bradley’s neck at 0%, stating, “the cervical movements cannot be blamed for the cervical dissection of the vertebral arteries”, and “I have not considered the cervical movements or the manipulation as contributing to the stroke”. Dr Lethlean assessed Mr Bradley’s right arm at or above the elbow at 10%, his right leg at or above the knee at 5%, and his brain at 15%.
Mr Bradley appealed against Dr Lethlean’s assessment to a Medical Appeal Panel. On 29 August 2005, the Panel found Mr Bradley:
“23. ... had a fluctuating neck condition – causing a variable amount of pain and stiffness - secondary to his work as a crane driver.
24. The Panel further finds that the Appellant suffered a traumatic dissection of the extra cranial cervical vertebral artery in his neck as a consequence of the neck manipulation which he received in an attempt to treat his fluctuating neck pain, and that this traumatic dissection of the extra cranial vertebral artery led subsequently to the development of a major stroke.”
While the Panel agreed with Dr Lethlean’s overall assessment of Mr Bradley’s level of impairment, they found (at paragraph 27):
“The permanent impairmments were a direct consequence of the neck manipulation given to him in an attempt to treat his chronic neck pain and stiffness arising out of the injury in the Respondent’s employment.”
The Panel gives no reasons for so concluding and neither does Dr Geoffrey Coffey, Neurologist, the member of the Panel who examined Mr Bradley on 23 June 2005 and who provided a report to the Panel on that examination dated 28 July 2005.
Having so concluded, the Medical Appeal Panel revoked Dr Lethlean’s MAC and issued a new MAC with their Statement of Reasons attached. The Panel made no change to the assessments of percentage permanent loss of efficient use or impairment made by Dr Lethlean.
On 11 October 2005, the Arbitrator conducted a further teleconference with the parties and, on 3 November 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. His decision, made on 11 November 2005, is set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 11 November 2005, records the Arbitrator’s orders as follows:
“1. The Respondent is to pay the Applicant weekly compensation as follows:
• at the rate of $1,191.75 under s 36 for the period from 29 October 2000 to 29 April 2001
• at the maximum statutory rate for a man with three dependents under s 40 for the period from 30 April 2001 to date.
2. The Respondent is to continue paying weekly compensation at that rate in accordance with the provisions of the legislation.
3. The Respondent is to pay the Applicant's hospital, medical and related expenses under s 60 upon production of tax invoices or receipts.
4. The Respondent is to pay the Applicant, as lump-sum compensation under section 66 of the 1987 Act, in respect of the injury received, the following amounts:• $9,000.00 for 10% permanent loss of efficient use of his right arm at or above the elbow.
• $15,000.00 for a 15% permanent injury to the brain.
• $3,750.00 for 5% permanent loss of efficient use of his right leg at or above the knee.
• $60,000.00 for a 60% permanent loss of sight in both eyes.
• $18,800.00 for 40% permanent loss of his sexual organs.
5. The Respondent is to pay the Applicant, as lump-sum compensation under section 67 of the 1987 Act, in respect of the injury, $30,000.00 for pain and suffering. That sum is apportioned as to $15,000.00 for past pain and suffering, and as to $15,000.00 for future pain and suffering.
6. The Respondent is to pay the Applicant's costs as agreed or assessed.”
In the Statement of Reasons for his decision, the Arbitrator found:
“25. The Applicant, Stephen Bradley, worked as a crane driver more or less consistently from about the age of 22 up until the end of October 2000 when as a result of the stroke he ceased working. Apart from some initial unsuccessful attempts to find gainful employment, he has not worked since 19 October 2000 and it is not disputed that he has been and remains incapacitated to the extent that he has not been capable of earning any wages at all.
26. The central issues are whether the injury alleged arose out of or in the course of the employment; whether the employment with the Respondent was a substantial contributing factor (s 9A); and whether the stroke, which is the cause of the impairment, loss and incapacity claimed, resulted from the injury.
27. ...
28. The Applicant commenced employment with the Respondent on 9 June 2000. Prior to that he had worked with various other employers as a crane driver over an 18 year period. It was common ground that the crane driving work involved repetitive neck movements including turning, extension and craning.
29. From about four to five years prior to joining the Respondent, the Applicant had started to experience neck pain and other symptoms including stiffness and soreness, and restriction of movement. However, before commencing with the Respondent his symptoms were never sufficiently serious to warrant the seeking of medical attention. He lost no time from work and made no claim for compensation. He was accustomed to massaging his own neck and otherwise resting until the symptoms dissipated.
30. However, from about the time he commenced with the Respondent the symptoms became worse.
31. There is conflicting evidence as to the timing of the relevant events. At some point the Applicant underwent a manipulation of his neck by a casual acquaintance in the car park of a hotel. Some time after that he suffered the stroke.
32. The manipulation in question was performed by a Mr Alan Jones, who the Applicant met at a hotel. Upon hearing of the Applicant's problems, Mr Jones, who was a football team trainer or masseur, offered to fix his neck by a manipulation. The Applicant agreed and Mr Jones performed the manipulation in the hotel car park with the Applicant sitting in his car. The evidence is that during the course of the manipulation his head was turned sharply to the left and then to the right, and there were two loud cracking sounds.
33. After the manipulation the pain went and the Applicant felt better for the next two weeks, but then the pain returned worse than before and he developed headaches and an increasing aching sensation in the right side of his neck. His vision deteriorated. In October 2000 he had an episode whilst driving his crane on the toll way when he was unable to focus his vision. He attended a doctor at the local medical centre. By then he also had tingling in the forehead and numbness in the tongue.
34. On a Saturday morning, probably 29 October 2000, he fell off the toilet and for a while he could not move or get up. Nevertheless he recovered sufficiently to attend the Paralympics that day with his family. On the Sunday he mowed the lawn, but subsequently developed shaking and body convulsions and could not stand up. An ambulance was called and he was taken to Blacktown Hospital.
35. At the Blacktown Hospital he had a CT scan. The following day he was transferred to Westmead Hospital, suffering from fits, where he underwent tests including an MRI and cerebral angiogram which demonstrated a left vertebral artery dissection, leading to a thromboembolism.36. He remained in Westmead Hospital until 9 November 2000 and was then transferred to St Joseph's Hospital for rehabilitation. He was eventually discharged on 21 December 2000. Thereafter his improvement was gradual.
37. He continues to suffer from considerable symptoms and impairment which are set out in the medical reports, but which I do not need to refer to in detail as the issues of impairment and incapacity are not contested in these proceedings.”
The Arbitrator discussed the medical evidence at some length including the contrasting views of the various specialists. He concluded:
“53. I am satisfied that on the balance of probabilities the stroke suffered by the Applicant did not occur spontaneously, rather it was causally connected with the manipulation. There is sufficient credible medical evidence that the interval between the two events was sufficiently close to establish that link. This evidence has the greater credibility coming as it does from the independent members of the MAP, and from Dr Drew, a WorkCover Approved Medical Specialist who saw the Applicant in October 2002. More importantly, there was a continuous sequence of symptoms and events that in my view inevitably link the two events, albeit in a gradual but successive and progressive manner. These include the return of symptoms, in a more severe form, some two weeks after the manipulation, the onset of problems with vision, the headaches and the need to visit to the local medical centre, the development of tingling in the forehead and numbness of the tongue. This is consistent with Professor McLeod's description of a ‘stuttering onset of the stroke’.”
The Arbitrator noted that while there was no dispute that Mr Bradley had suffered an injury, at issue was the cause of the injury and whether his employment by NCH was a substantial contributing factor. The Arbitrator found:
“56. It is clear that the Applicant underwent the manipulation which led to his stroke in an attempt to alleviate the chronic and fluctuating neck symptoms from which he was suffering...
57. ...
58. I am satisfied on the balance of probabilities that the Applicant sustained injury arising out of or in the course of his employment with this Respondent caused by the nature and conditions of that employment, and that this employment was a substantial contributing factor to the injury. The duration may have been limited but I take into account the nature of the work, requiring as it did constant neck movement and craning. It is not probable that the injury or a similar injury would have happened anyway, as the injury was a direct outcome of the work involved. Although he had experienced symptoms of a similar nature in prior employment, they had not been sufficient to warrant him seeking medical attention or losing any time from work. There is evidence that the symptoms in fact worsened while working for this employer.
59. It is clear from this evidence that the contribution of the employment with this Respondent to the injury was not minimal, nor was the connection remote or tenuous. That there had been prior, similar problems with earlier employers is not to the point. All that is required is that the Applicant establish that this employment was a substantial contributing factor, and I am satisfied that it was.
60. The nature of the injury was not an issue, which may explain why there is so little comment on it in the medical reports. I do not need to determine this issue, but it was submitted for the Applicant that it was a disease of gradual onset, constituted by an underlying cervical spondylosis. In my view it is more probable that the injury was a musculo-ligamentous strain, which was Dr Drew's view. This diagnosis is more consistent with the nature of his fluctuating symptoms over a period of time and the demands of crane driving. It also lends verisimilitude to the substantial nature of the contribution of the employment concerned.
61. Finally, on the issue of causation, the Respondent submitted that the manipulation was an intervening event which broke the chain of causation (a "novus actus interveniens").
62. This submission was not developed in any detail but seems to be put on the basis that the manipulation was not provided by a qualified medical practitioner. In my view there was no break in the chain of causation. Whilst the circumstances of the manipulation may have been out of the ordinary, it was not an event outside the range of ordinary experience nor was it unreasonable for the Applicant to seek relief from his symptoms in this way.”
ISSUES IN DISPUTE
NCH submits the Arbitrator made a number of errors of law and fact in making his decision: (1) he failed to correctly identify and deal with the appropriate statutory and factual issues, (2) he failed to give adequate reasons for his decision, (3) he made errors of fact and law in making a finding as to the cause of the injury, (4) he erred in law by misdirecting himself that he could disregard earlier contributing injuries, (5) he erred in evaluating the medical evidence by failing to take into account relevant material considerations and by treating certain doctors as having greater credibility by virtue of statutory offices or titles, (6) he erred by failing to take into account relevant and material considerations, and (7) he erred by failing to find the manipulation amounted to a novus actus interveniens [new intervening act]. The grounds of appeal and the parties’ submissions in relation thereto are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the matter can be determined on the basis of these documents dealt, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue, namely the whole of the compensation awarded to Mr Bradley by the Arbitrator, exceeds $5,000 and constitutes 100% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
SUBMISSIONS
NCH has identified a number of grounds of appeal, identified in paragraph 14 above. Its submissions on these grounds cannot be addressed easily under separate headings and I have therefore summarised those submissions below.
NCH’s submissions
NCH notes that Mr Bradley’s claim for compensation was made on the following alternative bases: first, Mr Bradley suffered an injury to his neck as a result of the nature and conditions of his employment with NCH between 5 June 2000 and 29 October 2000 and that, as a result, he agreed to a manipulation of his neck which caused a left vertebral dissection and consequent stroke; or, second, Mr Bradley suffers from a disease contracted by gradual process which was aggravated, accelerated or exacerbated by the nature and conditions of his employment. I note that at the hearing, Mr Bradley’s counsel submitted that “on the overwhelming balance of evidence” he suffers from a disease, but that even if it were not a disease, there is still sufficient evidence to find that the nature and conditions of Mr Bradley’s work between 5 June 2000 and 29 October 2000 were a substantial contributing factor to his injury, being cervical spondylosis (transcript page 33).
NCH points to the Arbitrator’s failure to include the disease allegation in the list of issues in dispute that he identified. It submits that failure to correctly identify the statutory issues and to adequately address the essential steps in the reasoning process is an error of law: Mitchell v Central West Health Service (1997) 14 NSWLR 526 (‘Mitchell’). Moreover, for the Arbitrator to state, at paragraph 60 of his Statement of Reasons, that the nature of the injury was not an issue, was inappropriate because it clearly was an issue, and this demonstrates a misunderstanding of the issues before him.
NCH submits the Arbitrator also failed to address the symptoms Mr Bradley experienced in his neck between 1996 and 2000, yet made a finding that his employment in June or early July 2000 caused an injury in the nature of musculo-ligamentous strain when there was no expert medical evidence to support this. This was an error of fact-finding and, in the absence of supporting evidence, an error of law. The Arbitrator also made an error of law by disregarding similar problems Mr Bradley may have experienced with symptoms with his neck when working for other employers, when section 22 of the Workers Compensation Act 1987 (‘the 1987 Act’) provides for apportionment of liability.
NCH submits that the Arbitrator made further errors of fact finding and failed to take into account relevant considerations in relation to the manipulation of Mr Bradley’s neck, in particular making “no apparent finding at all about when the manipulation probably occurred”. The Arbitrator seems not to have taken account of the opinion of Dr Kevin Bleasel, Neurosurgeon, that on the balance of probabilities, given the three months time lapse between the manipulation and the stroke, the manipulation was not a substantial contributing factor to the stroke. Professor JG McLeod, Neurologist, also took the view that such a time lapse was “too long to allow a causal relationship to be considered”.
The Medical Appeal Panel’s opinion that Mr Bradley’s disabilities were “a direct consequence of the neck manipulation”, was based on the report by a member of the Panel, Dr Geoffrey Coffey, Neurologist and AMS, who examined Mr Bradley and refers to a “clear history of the sequence of events” but does not say what that history was. This lack of detail for the “clear history” was drawn to the Arbitrator’s attention at the hearing and it was submitted that the Panel’s opinion should not be preferred for that reason. In the light of this submission, the Arbitrator should not have relied so heavily on the Panel’s report, and for him to ignore NCH’s complaint was a failure to take into account relevant and material considerations. Moreover, for the Arbitrator to give “greater credibility” to certain matters because they came from a Medical Appeal Panel or an AMS demonstrates a significant discretionary error. Mere title gives no greater credibility.
Finally, NCH submits that the extraordinary circumstances of consenting to a manipulation by a casual acquaintance amounted to a novus actus interveniens and the Arbitrator ought to have so found.
Mr Bradley’s Submissions
Mr Bradley’s solicitors submit there was no legal, factual or discretionary error in the Arbitrator’s decision. The Arbitrator identified the proper issues as (Statement of Reasons, paragraph 26):
“The central issues are whether the injury alleged arose out of or in the course of the employment; whether the employment with the Respondent was a substantial contributing factor (s.9A); and whether the stroke, which is the cause of the impairment, loss and incapacity claim, resulted from the injury”.
The Arbitrator properly found that it was not disputed that Mr Bradley had suffered an injury to his neck. NCH’s criticism of the Arbitrator’s comment at paragraph 60 of his Statement of Reasons, confuses the nature of the injury with the fact of it. Properly distilled, the relevant findings are that the injury to Mr Bradley’s neck occurred as a result of his employment as a crane driver, he had the injury manipulated to relieve the symptoms of the injury, and the stroke happened as a result of the manipulation. In terms of causation, the incapacity/disability arose as a result of the injury. Mr Bradley’s solicitors submit that the relevant issues, accurately and succinctly identified by the Arbitrator, were, first, whether Mr Bradley’s employment with NCH was a substantial contributing factor to the neck injury, second, did the stroke result from the manipulation and, third, did the manipulation constitute a novus actus interveniens.
With regard to whether the injury was a disease of gradual onset, Mr Bradley’s solicitors state the Arbitrator chose to accept the view of Dr John Drew, Surgeon, that the injury was musculo-ligamentous. However, the question of how the injury should be classified was subsumed within the issue of whether Mr Bradley’s employment was a substantial contributing factor to his injury. They submit that even if there was an error, it does not materially affect the Arbitrator’s ultimate analysis, which was that the nature and conditions of Mr Bradley’s employment was a substantial contributing factor to the neck injury, Mr Bradley had the manipulation to alleviate the neck symptoms, and the manipulation was causally connected to the stroke.
Mr Bradley’s solicitors submit the Arbitrator found correctly that while the period of Mr Bradley’s employment with NCH was limited, and he had suffered similar problems with earlier employers, the constant neck moving and craning required by the nature and conditions of his employment satisfied the Arbitrator that employment was a substantial contributing factor to the injury. In so concluding, the Arbitrator quite properly took into account similar problems while Mr Bradley was working with earlier employers as a relevant consideration, but concluded the similar problems were “not to the point” (paragraph 59).
Mr Bradley’s solicitors refute NCH’s assertion that there was no expert medical opinion that the nature and conditions of Mr Bradley’s employment between June and early July 2005 caused a musculo-ligamentous strain of his neck. They submit it was not necessary for the injury to be a permanent one. All that is necessary for the purpose of this analysis is that Mr Bradley’s employment with NCH is a substantial contributing factor to his injury. The Medical Appeal Panel found Mr Bradley suffered pain and stiffness in his neck secondary to his work as a crane driver. This is supported by the opinions of Dr Peter Giblin, Orthopaedic Surgeon, and Dr Bleasel, and Professor McLeod noted a history of worsening neck pain while Mr Bradley worked with NCH.
Mr Bradley’s solicitors submit that the Arbitrator gave adequate reasons for his decision. Further, the Arbitrator was not required to consider the application of section 22 of the 1987 Act because no application had been made by either NCH or WorkCover for such an apportionment (section 22(4)); moreover, section 22(7) prevents an employer who is liable to pay compensation seeking to reduce its liability by apportionment on account of the existence of any other person who is also liable unless that other party is a party to the proceedings. In circumstances where Mr Bradley had worked for “dozens” of employers on a short-term basis, and in many different workplaces, and given that no reports of injury had been made nor medical treatment sought, it was at least reasonable for Mr Bradley not to have ‘joined’ those earlier employers. It was still open to an insurer to seek an apportionment of liability between itself and other insurers even if it had discharged an employer’s liability (section 22A(3)).
Mr Bradley’s solicitors submit the Arbitrator correctly considered the relevant authorities and “painstakingly traversed the relevant evidence” on causation. The Arbitrator’s juxtaposition and distilling of the evidence and his common sense assessment of it on the question of causation, as permitted by the relevant authorities, makes more common sense than the views of Dr Lethlean and Professor McLeod that the stroke occurred spontaneously. Mr Bradley’s solicitors submit the balance of the evidence supports a finding that the manipulation occurred after Mr Bradley commenced employment with NCH on 5 June 2000. The timing of the manipulation was considered by the Arbitrator at paragraphs 31 and 33, and the relevance of the time lapse at paragraph 46.
Finally, with regard to the question of whether there was a novus actus interveniens, Mr Bradley’s solicitors submit this issue was properly dealt with by the Arbitrator, who provided adequate reasons for his finding that there was “no break in the chain of causation” and “nor was it unreasonable for the Applicant to seek relief for his symptoms in this way” (paragraph 62).
EVIDENCE, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, NCH must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
I have reviewed the medical and other evidence, in particular, that relating to the history of neck strain and/or neck pain, as to when the manipulation occurred, the time that elapsed between the manipulation and the stroke, and medical opinion as to whether Mr Bradley suffered an injury arising out of or in the course of his employment and as to the cause of his stroke.
Whilst Mr Bradley now suffers from cognitive impairment as a result of his stroke and has a poor memory, nevertheless, in my view, he should have been asked to provide a written statement and/or give oral evidence at the hearing, and preferably, so also should his partner of that time, whom Dr Coffey said gave a clear history of events, despite Dr Coffey’s omitting to state what that clear history was. That no such evidence is available means that any fact-finding is reliant on the history recorded by the various medical specialists who examined Mr Bradley and prepared reports in relation to these proceedings. The history as recorded by those specialists differs in a number of important respects and it is those differences that have given rise to NCH taking issue with some of the Arbitrator’s findings. Given his poor memory, the reliability of what Mr Bradley told those specialists is also questionable, which is why any corroborating evidence of what occurred is important.
Turning to the facts, I note the undisputed evidence that Mr Bradley had worked as a crane driver for a significant number of employers over about 18 years. This work involved repetitive neck movements, and he had, as a result, experienced stiffness and soreness and restriction of movement in his neck for at least four to five years before commencing employment with NCH. He had not, however, sought medical treatment for these symptoms, nor taken time off work or claimed compensation in respect thereof. Mr Bradley told Dr Lethlean (MAC issued on 19 October 2004) that he had suffered from a sore neck for the last seven years, and he told Dr Lethlean and Dr Drew (report dated 24 October 2002) that he frequently massaged it to get some relief.
The histories taken by the specialists who examined Mr Bradley vary in their account of when the manipulation of Mr Bradley’s neck occurred. In most instances, the history recorded is that the manipulation took place about three months prior to Mr Bradley’s stroke, that is, in late July 2000 (for example, the history taken by Dr Bleasel, report dated 18 February 2003, and Professor McLeod, report dated 10 June 2003). However, Dr Giblin (report dated 24 January 2002) records Mr Bradley as saying that the manipulation was in early 2000, and Dr Delaney (MAC issued on 19 October 2004) records that it was four months before the stroke. In my view, provided it can be established that the manipulation occurred at a time when Mr Bradley was employed by NCH, which on the balance of the evidence seems likely, nothing very much medically turns on whether the manipulation took place three or four months before the stroke, although, of course, if Mr Bradley had only just commenced his employment with NCH, the likelihood of his suffering some sort of strain injury arising out of or in the course of his employment with NCH would seem more unlikely. On balance, I find that the manipulation probably took place in late June or July 2000.
As to whether Mr Bradley suffered an injury arising out of or in the course of his employment with NCH, I note Mr Bradley’s solicitors’ submission that the injury does not need to be a permanent one – for example, the evidence suggests that Mr Bradley suffered a musculo-ligamentous strain to his neck (Dr Giblin (report of 24 January 2002), Dr Drew (report of 24 October 2002)). In my view, there is sufficient evidence to support a finding that Mr Bradley suffered a musculo-ligamentous strain to his neck in the course of his employment as a crane driver with NCH. As to whether this injury was a frank injury or a disease, the evidence supports a finding that Mr Bradley suffered a frank injury or series of micro-traumas as a result of the nature and conditions of his employment. I agree, however, that in this case, the classification of the injury is not so important as establishing whether Mr Bradley’s employment with NCH was a substantial contributing factor to the injury (section 9A).
Thus, was Mr Bradley’s employment with NCH a substantial contributing factor to the injury (section 9A)? While there is evidence to support a finding that Mr Bradley’s work as a crane driver was a substantial contributing factor to the musculo-ligamentous strain of his neck, it must also be established whether there is a causative link between the strain to the neck and the stroke. In my view, the Arbitrator concluded correctly that there was insufficient evidence to support a proposition that it was the nature and conditions of Mr Bradley’s employment that was the direct cause of the stroke. Although this was Dr Bleasel’s view (report dated 25 March 2003), this was rejected by all the other specialists.
I agree with the Arbitrator that it was not unreasonable for Mr Bradley to have accepted an offer from Mr Alan Jones, the football team trainer or masseur, to manipulate his neck in pursuit of relief from the stiffness, soreness and restriction of movement he was experiencing. There is no dispute that the stroke was caused by a left vertebral artery dissection (Dr Andrew Bleasel, treating Staff Specialist – Neurology, Westmead Hospital, report dated 2 February 2001). The critical question seems to be whether this dissection was caused by the manipulation of Mr Bradley’s neck, in which case the dissection was indirectly caused by Mr Bradley’s employment. It is here that there is a division in the medical opinion.
The relevant medical evidence is discussed by the Arbitrator at some length. The neurologists Dr Bleasel (instructed by Mr Bradley’s solicitors) and Professor McLeod (instructed by NCH) both rejected the proposition that the manipulation could have caused the vertebral artery dissection, as did the AMS Dr Lethlean. Dr Bleasel and Professor McLeod took the view that if trauma (from the manipulation) had caused the vertebral artery dissection, then the stroke would have occurred either immediately (Dr Bleasel) or (by implication from Professor McLeod’s opinion) soon thereafter. Both regarded three months as too long an interval. It was also Dr Lethlean’s opinion that neither the cervical movements in the course of Mr Bradley’s employment (Dr Bleasel attributed the stroke to “an occupational disease of gradual process”), nor the manipulation contributed to the stroke. The opinion of Dr Anthony Lowy, Consultant Physician in Occupational Medicine (report dated 22 May 2003), was that Mr Bradley’s stroke “was 100% of constitutional origin and unrelated to any external factors and certainly unrelated to the nature and conditions of his employment”.
The only specialist who considered the manipulation to have caused the stroke was Dr John Drew, Surgeon (report dated 24 October 2002), who said that the manipulation of Mr Bradley’s cervical spine led to an aggravation of his condition that in turn led to the stroke. His opinion is briefly stated, and he does not otherwise explain his opinion. The AMS, Dr Coffey, also apparently came to the same conclusion. In his report to the Medical Appeal Panel, dated 28 July 2005, Dr Coffey stated:
“The Appeal Panel concluded that Mr Bradley suffered a traumatic dissection of the extra cranial cervical vertebral artery in his neck – as a consequence of the neck manipulation which he received in an attempt to treat his fluctuating neck pain. It was concluded that this traumatic dissection of the extra cranial vertebral artery led subsequently to the development of a major stroke.”
Unfortunately, the report does not give either Dr Coffey’s or the Panel’s reasons for reaching this conclusion. The Statement of Reasons for the decision of the Panel dated 29 August 2005 also fails to give reasons for arriving at the same conclusion and is thus, in my view, inadequate.
The Arbitrator was satisfied on the balance of probabilities that the stroke “was causally connected with the manipulation”. His reasons are given in paragraph 53 of his Statement of Reasons, quoted in paragraph 12, above. In my view, given the lack of reasons given by the Medical Appeal Panel for their decision, the brevity of Dr Drew’s opinion, and the contrary opinions expressed by, in particular, Dr Bleasel, Professor McLeod and Dr Lethlean, there was insufficient weight of evidence to support the Arbitrator’s finding and, indeed, the weight of evidence was against that conclusion. While I am conscious of Deputy President Fleming’s comment in Knight, quoted above, in my view the Arbitrator’s discretion so miscarried in this matter that it was not exercised fairly and lawfully and he thereby made an error of law in his determination.
Although I am reluctant to do so because of the prolongation of these proceedings and the effect this will have on Mr Bradley, the appropriate course, nevertheless, is for me to revoke the decision under review and remit the matter to an arbitrator for redetermination. The arbitrator should give consideration to calling for further evidence, in particular as the history of events (for example, from Mr Bradley and his partner), and to referring Mr Bradley for assessment by another AMS (with a specialisation in neurology), pursuant to section 329(1)(b) of the 1998 Act.
Notwithstanding my conclusion, I should, for the sake of completeness, address the grounds of appeal identified by NCH. First, as stated above, I am not satisfied that the Arbitrator failed to correctly identify and deal with the appropriate statutory and factual issues, with the exception that he should have sought further evidence as to the events in 2000 leading up to Mr Bradley’s stroke. Second, although I have stated that the Arbitrator made an error of law in his determination, I am not otherwise persuaded that his Statement of Reasons was inadequate. They contain a full discussion of the facts, a comprehensive discussion of the medical evidence and correctly state the applicable law. Third, I have stated that the Arbitrator made an error in his fact-finding and thereby an error of law.
Fourth, I am not satisfied that the Arbitrator misdirected himself regarding earlier contributing injuries. He took into account the evidence that Mr Bradley had, for at least four years prior to the stroke, experienced stiffness, soreness and restriction of movement in his neck attributable to his work as a crane driver. Fifth, as stated, I am satisfied that the Arbitrator erred in evaluating the medical evidence. Sixth, the Arbitrator did not seek sufficient clarification of the relevant events leading up to the stroke, in particular, the lapse of time between the manipulation and the stroke. I am also not satisfied that preferring the opinion of Dr Drew and the Medical Appeal Panel on the issue of causation was, in the circumstances, justifiable for reasons of credibility, given the lack of reasons given by them in support of their opinions. Finally, I am not satisfied that the Arbitrator made any error in determining that the manipulation was not an actus novus interveniens, and, consequently, that there was no break in the chain of causation.
DECISION
The decision of the Arbitrator, dated 11 November 2005, is revoked and the matter is remitted to an arbitrator for redetermination in accordance with the law and these reasons.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
31 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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