NSW Police Force v Cox
[2009] NSWWCCPD 20
•27 February 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | New South Wales Police Force v Cox [2009] NSWWCCPD 20 | |||||
| APPELLANT: | New South Wales Police Force | |||||
| RESPONDENT: | Paul Cox | |||||
| INSURER: | Allianz Australia Insurance Limited Treasury Managed Fund | |||||
| FILE NUMBER: | A1- 4363/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 22 October 2008 | |||||
| DATE OF APPEAL HEARING: | 20 February 2009 | |||||
| DATE OF APPEAL DECISION: | 27 February 2009 | |||||
| SUBJECT MATTER OF DECISION: | Sections 9A and 10 of the Workers Compensation Act 1987; substantial contributing factor; journey provisions; whether a worker in the course of employment can also be on a journey | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr Saul instructed by DLA Phillips Fox | ||||
| Respondent: | Mr Harris instructed by Oates and Smith Solicitors | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 22 October 2008 is revoked and the following order made in its place: “1. Award for the respondent employer. 2. No order as to costs.” | |||||
| Each party is to pay his or its own costs of the appeal. | ||||||
BACKGROUND
In June 2004, Mr Cox was a member of the New South Wales Police Force (‘the Police Force’) serving in the Forensic Service Group Crime Scene Unit at Albury. He had been away from work on 11 and 12 June 2004 because of a viral infection with a sore throat, headaches and repeated dry cough. On 13 June 2004, he was rostered as the “on call officer” for the Unit. He left his home at about 6am in the “on call police vehicle” intending to drive to Albury police station. He alleges that while he was driving to the police station he turned his head and reached for the police radio and that, as he did so, he coughed and experienced severe pain in his head, together with weakness in the left side of his body. The nature of his injury and the exact manner in which it was sustained is the subject of conflicting evidence and will be considered in detail below.
The Police Force initially accepted the claim, but ultimately disputed liability on the basis that Mr Cox had not turned his head, or reached for the radio, at the time he coughed and felt pain and that, as a result, his employment was not a substantial contributing factor to his injury.
On 25 August 2005, Mr Cox injured his right knee when, as a result of the symptoms he developed on 13 June 2004, he experienced pain in his head and fell down two stairs at his home.
On 11 December 2007, Mr Cox claimed lump sum compensation in respect of a 13% whole person impairment. As agent for NSW Self Insurance Corporation, Allianz Australia Insurance Limited (‘Allianz’) disputed liability for the claim by a section 74 notice dated 16 April 2008.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 10 June 2008, Mr Cox claimed weekly compensation from 13 June 2004 to date and continuing, lump sum compensation in respect of his neck and right lower extremity, and hospital and medical expenses, as a result of the injury to his neck on 13 June 2004 and to his right knee on 25 August 2005. An Amended Application filed on 15 July 2008 alleged that Mr Cox’s injuries occurred as follows:
“Injury sustained on 13 June 2004 was while [the] Applicant was on call driving to work, he injured his neck when he reached to his left to turn on [the] Police Radio. The injury to his right knee was sustained when the Applicant experienced a sharp pain to his head and fell off balance down two stairs. The injury to the Applicant’s knee resulted from the injury sustained to the Applicant’s neck on 13 June 2004.”
By its Reply filed on 26 June 2008, the Police Force confirmed the issues outlined in Allianz’s section 74 notice and listed 32 “liability issues”.
The Commission listed the matter for conciliation and arbitration on 8 September 2008 when submissions were made by counsel for each of the parties. No oral evidence was called.
Counsel for Mr Cox conceded that his client was in the course of his employment at the time of the incident on 13 June 2004 (T30.36). As a result, it was accepted that for Mr Cox to succeed he had to establish that his employment was a substantial contributing factor to his injury (section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’)). Though other issues were identified in the section 74 notice served on 16 April 2008, and debated at the arbitration, the Arbitrator identified the issue in dispute to be whether employment was a substantial contributing factor to the injury (Statement of Reasons for Decision (‘Reasons’), paragraph five). The Arbitrator also noted that counsel had rightly conceded that Mr Cox had commenced work “so that s10 did not apply” (Reasons, paragraph two).
The Commission issued a Certificate of Determination on 29 September 2008 and an Amended Certificate of Determination issued on 22 October 2008. The amended certificate records that Arbitrator’s orders as follows:
“1. Respondent to pay $273.51 per week from 4 June 2004 to 1 July 2004, $347.21 per week from 2 July 2004 to 15 July 2004, $374.50 from 16 July 2004 to 30 December 2004, $379.18 per week from 31 December 2004 to 14 July 2005, $390.38 per week from 15July 2005 to 13 July 2006, $396.20 per week from 14 July 2006 to 21 September 2006, $425.91 per week from 22 September 2006 to 11 January 2007, $432.44 per week from 12 January 2007 to 17 May 2007, $437.47 from 18 May 2007 to 13 July 2007 and $444.24 per week from 13 July 2007 to date and continuing.
2. Respondent to pay s60 expenses.
3. I remit the claim for permanent impairment benefits to the Registrar for referral to an AMS to assess WPI for the cervical spine and right lower extremity.
4.Respondent to pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 24 October 2008, the Police Force seeks leave to appeal the Arbitrator’s determination.
At the oral hearing of the appeal on 20 February 2009, different counsel appeared for Mr Cox. Though he did not seek to resile from the concession made by counsel at the arbitration (that Mr Cox was in the course of his employment at the time of the incident) he submitted that that concession did not preclude an argument that Mr Cox was on a journey within the meaning of section 10 of the 1987 Act and that the requirement that employment be a substantial contributing factor did not apply to such a claim (section 9A(4) of the 1987 Act). The Police Force objected to Mr Cox being allowed to argue the journey issue saying that that issue was res judicata and, in the alternative, had been abandoned at the arbitration.
As the Commission is bound to “act according to equity, good conscience and the substantial merits of the case” (section 354(3) of the 1998 Act) and as the issue sought to be argued does not require the Police Force to call any further or additional evidence, I gave leave to Mr Cox to argue that his claim also falls under section 10 of the 1987 Act.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
THE EVIDENCE
Lay Evidence
The only lay evidence is from Mr Cox and is set out in his statements of 29 March 2006, 21 January 2007 and 17 December 2007. The March 2006 statement was prepared in support of an application by Mr Cox for legal and financial assistance from the NSW Police Association. In summary it states:
(a)Mr Cox is a member of the NSW Police based in Albury serving in the Forensic Service Group Crime Scene Unit;
(b)on 13 June 2004, he left his home at Tallangatta and started driving a police car to Albury to start his rostered shift. He stated:
“I reached down to my left whilst driving to turn on the Police radio so I could call on duty to the Police radio. While doing this I coughed and immediately suffered a very sharp pain on the left side of my head from the base of the skull to the front of my forehead above my left eye.”
(c)his vision was affected and the pain was persistent and lingering. He also had a loss of feeling and movement in his left arm and leg that felt like “pins and needles”. Over the next 30 to 40 minutes he sat in the car unable to function properly waiting for the pain to subside and the pins and needles to disappear. He then called his wife and was taken to “Tallangatta Hospital” (referred to in other evidence as a medical centre) where he came under the care of Dr Coleman, general practitioner. He was allowed home after about four hours. By that time the pain had subsided but he was left feeling like he had a “bad hangover”. He felt groggy and light headed, nauseas and had pain at a level of “about 6 with 1 being the best and 10 being the worst pain”. He was unable to sleep and any straining or movement of his head aggravated his pain;
(d)about six days later (19 June 2004) he was getting ready for bed and he “again suffered the same sharp pain in the same area” and fell to the ground. Again, the pain lasted for around 40 minutes before it reduced to the “level 6 hangover feeling”;
(e)he made a “hurt on duty” claim that was accepted;
(f)throughout 2004 and 2005, his symptoms remained “pretty much the same with ups and downs”. He was unable to sleep, would vomit if he ate, lost 18 kilograms of muscle mass, and was physically and emotionally drained. His perception of distance and objects was distorted, he found it difficult to concentrate, difficult to remember things, and his ability to read and write was affected. He was prescribed pain relieving medication and sleeping tablets, which had little or no effect, and
(g)about nine months before his statement, he was walking at the front of his house when he again experienced a sharp pain to the same area of his head and, as a result, he fell from the veranda down two steps onto the ground and injured his right knee. His knee pain has continued.
In his second statement, Mr Cox described the incidents of 13 June 2004, 19 June 2004 and 25 August 2005 in substantially the same terms as used in his first statement. He added that he had been absent from work from June 2004 until he returned on restricted duties from 8 May 2006.
In his December 2007 statement, Mr Cox described the 13 June 2004 incident as follows:
“On June 13th, 2004 I was rostered as the on call officer for the Albury Crime Scene Section. At approximately 0600hrs I left my home in Tallanagatta [sic] in the on call Police vehicle and headed to work. A short time after pulling out onto the highway I turned and leant down to the left to turn the Police radio on as required so I could call on duty. Whilst my head and neck were turned and angled down to the left I coughed to clear my throat. About this time I experienced a very sharp, intense pain on the left side of my neck and head. The pain went from the base of my skull over the top of my head to just above my left eye.
I have never experienced this type of pain before and I would rate it as a 9/10. I do not recall a lot of details from this point other than I pulled the vehicle over to the side of the road. The pain did not go away and I was very week [sic, weak] in the left side of my body. The on call mobile phone was mounted in the hands free kit on the dash and I was unable to reach it initially.”
He added that since the incident his life has changed dramatically. He has no social life. He has lost weight. He has had constant headaches and neck pain and sometimes has been unable to get out of bed.
Medical Evidence
Mr Cox’s Medical Evidence
Mr Cox saw Dr Ring, consultant neurologist and neurophysiologist, in Albury on 23 December 1993 about an incident when a car reversed into him and caused pain in his knee, thoracic spine and low back causing Mr Cox to have four weeks off work. He saw Dr Ring again on 29 January 1994, when the doctor recorded:
“- 2nd day back at work
- put someone in stranglehold; extended back, felt snap in back,
legs crumpled, fell to ground, paralyzed legs → Wagga Hosp.
- difficulty moving arms too but not paralyzed.
- pain in mid-low back; numb legs; could still pee.
- tried standing after 3/7 → made back pain worse.
- MRI ? / ? RB
- a few weeks later movt. Started coming back; gradual return of motor + sensory function:
- 4-5 worker’s in hosp, then d/c on crutches; constant painHeadaches → settled down after few months.
- vomiting
-worse with back ache.
- almost daily; 1.2x per day; sharp, stabbing 1-2 secs, grimace.”
The entry for 29 January 1994 continued with notes about Mr Cox’s back pain. Under examination, Dr Ring recorded, among other things, decreased sensation in the left leg, mid buttock and groin.
On 14 June 2004, Mr Cox attended on Dr Coleman at the Tallangatta Medical Centre. The doctor’s notes for 15 June 2004 record:
“Attended yesterday with weakness L arm an [sic] leg together with a splitting head acche [sic] all of which followedan [sic] explosive bout of coughing. He was on his way to work having had 2 days off with a ? heavycold [sic] or ? FLU.
Today he is much better feels as if he has a hang over, feels as if he has been hit at base of skull wth [sic] a piece of 4x Getting power back in L arm and leg, now has ¾ power has very brisk reflexes which are equal.
Fundi appear to be within normal limits
Has appt [sic] for scan this afternoon at 4.00pm Actions
Diagnostic Imaging requested: CT – Brain, X-ray – Spine - Cervical.”
A cervical spine x-ray and brain CT scan dated 15 June 2004 were normal.
Mr Cox saw Dr Coleman again on four more occasions in June 2004. On 17 June, the doctor recorded that he was no better and that his “heads [sic, headaches] are terrible.”
On 18 June 2004, Mr Cox again saw Dr Ring. The doctor’s notes for 18 June 2004 record:
“last week – 2/7 viral infection – sore throat /H/A/ blocked nose
- coughing ++
took time off work
coughed – violent → developed sharp pain upper cerv [sic, cervical] → occipital → vertex
Persisted for 3/24 → hosp ‘tearing pain’, constant
Neck stiffness, couldn’t move head
(L) arm/leg numbness ‘dead’ developed in ½ hr
→ resolved over several hours but still feels
no facial droop
visual blurring
ongoing H/A; mainly (L) hemicranial; can move neck now →
improving
nauseous; no vomiting
mild photophobia
ongoing tingling (L) arm/leg (not trunk)
Not (N) H/A sufferer / migraine
Smoker
No hx HTN / family
O/E
Coughs → acute pain (L) occiput
N exam – give-way (L) (N) reflexes
N cx [indecipherable] (non – painful)
CT Brain (N)
? 1 Cough H/A → MRI / MRA
2 Cx [indecipherable] inflammation” pred 100mg daily
3 AC [indecipherable] cough suppressant
4 aneurysm no work x 1/52”
Dr Ring arranged for an MRI and MRA Brain and MRI Craniocervical Junction, which were done by Dr Mullins on 18 June 2004. Under “Clinical Notes”, Dr Mullins recorded:
“Sudden onset of occipital headache last week after coughing associated with left hemiparesis, which is resolving. Exclude Chiari malformation, vertebral dissection and aneurysm.”
Under “Conclusion”, Dr Mullins recorded:
“Very little flow within the extracranial right vertebral artery. No flow within the intracranial vertebral artery. The appearances are consistent with vertebral artery dissection.”
Dr Ring reported to Dr Coleman on 21 June 2004 as follows:
“Thank you for asking me to review Mr Cox in regards to the onset of a severe headache.
The headache week began over a week ago and leading up to that he had suffered a viral type infection characterised by sore throat, headaches and repeated dry cough. On his way to work when he coughed he developed a ‘violent’ headache in the upper cervical and occipital region radiating to the vertex which persisted for several hours. He described it as a ‘tearing’ pain. He had some mild neck stiffness and was unable to move his head although that eventually settled. After that he noticed left arm and leg numbness, not involving the trunk or face. This also improved over several hours but has not returned to normal. Every time he coughs he develops a sharp left hemicranial headache now and sometimes feels nauseous. He is not normally a headache sufferer and there is no past history of migraine. There is no history of hypertension or family history of cerebral haemorrhage.
The examination revealed a tendency to give way on testing left sided strength but he had normal deep tendon reflexes. He [sic, his] cervical movements were normal and non-painful. I reviewed a CT brain scan which was normal. He coughed a couple of times during the consultation and flinched in pain.
A subsequent MRI/MRA was reported as showing a right vertebral artery dissection however I have reviewed the films with another radiologist and I think there is a small right vertebral artery but no evidence of dissection. There is no evidence of a Chiari or vascular malformation.
He was commenced on a high dose of prednisolone but on telephone interview today there had been no improvement in his headaches. I had then suggested that he discontinue the prednisolone and commence regular Nurofen. My feeling is that his headache is mediated through intracranial pressure related to repeated coughing ie ‘benign cough headache’. Often the NSAIDs are useful in this setting although in rare instances lumbar puncture, assessment of CSF pressure and normalisation of pressure is required. He was also treated with a cough suppressant.”
On 21 June 2004, Dr Coleman recorded:
“Says he now has full power back in arm and leg. Yesterday, same thing happened with Cough and head ache, tingling in arm and leg but no loss of power.”
The first medical certificate issued by Dr Coleman is dated 28 June 2004. It described the “injury/disease” as “coughed splitting headache partial paresis (L) arm (L) leg.” The diagnosis is described as “cough –headache – viral syndrome.”
On 14 July 2004, Mr Cox underwent a CT Cerebral Angiogram by Dr Sonia Dale who recorded a history of “Vascular headache left occiput for one month. Pulsating left occiput ? aneurysm ? AVM”. Under “Comment”, the doctor recorded “No arterial aneurysm or arteriovenous malformation identified. Very small right vertebral artery with dominant generous calibre left vertebral vessel. ? accounting for pulsatile sensation of the left occipital region.”
On 19 July 2004, Dr Coleman recorded that Mr Cox was “still plagued with headaches until now.”
Dr Ring reported to Dr Coleman on 11 August 2004 that Mr Cox continued to suffer from sharp left hemicranial headaches originating from the upper neck when he coughs or strains, but also had a persistent dull throbbing headache at the occipital region most of the time. He had no other signs or symptoms and had a normal examination with no abnormality of neck movement. Dr Ring noted that Mr Cox’s headache remained “recalcitrant” though he felt it had a “vascular basis”. Having previously trialled Sandomigran without relief of symptoms, Dr Ring prescribed Endep.
On 23 August 2004, Dr Coleman recorded there had been no improvement. Mr Cox was still unable to work and could not drive, other than locally, as he had lost all judgment of traffic and the relationship of his vehicle to other traffic. A recent lumbar puncture was normal. Mr Cox was much the same when he attended on 9 September 2004.
On 14 October 2004, Mr Cox saw Dr Bittar, neurosurgeon, on referral from Dr Coleman. Dr Bittar reported to Dr Coleman on the same day, as follows:
“Thank you for referring Paul who I saw today at Parkville.
As you know, he is a 33 year old NSW police officer who presents with persistent left-sided headaches and neck pain.
On 13th July [sic], he turned his head to adjust the radio whilst driving and at the same time coughed explosively. He experienced sudden severe left-sided neck pain, which radiated to his cervical region up to the vertex. He described it as a tearing pain and persisted for several hours. This was followed by neck stiffness and transient left arm and leg numbness. The latter symptoms have since settled.
He was reviewed by Dr Stephen Ring who was concerned about the possibility of a vertebral artery dissection. However, he has had extensive imaging and no evidence of such a dissection has come to light. Dr Ring felt he was suffering from benign cough headache.
On review today, Paul tells me that his pain is persistent, with regular exacerbation. The pain is particularly exacerbated by coughing or straining. His physical examination is remarkable only for some para-vertebral cervical tenderness on the left side. Examination of his upper and lower limbs reveals no neurological abnormalities and he has full range of neck movement.
He is currently receiving some physiotherapy which he states is some benefit in relieving the ‘tightness’ in his neck. However, he is not taking any regular medications at the moment for this.
I have reviewed the MRI scan of his brain as well as CT angiogram and these were all within normal limits. My concern is that he may have an upper cervical radiculopathy, which is causing radiation of pain to his occipital region and vertex. I will organise for him to have an MRI scan of his cervical spine to exclude a problem in the upper neck.
I will review him after the MRI scan.”
The cervical MRI scan of 22 October 2004 revealed no abnormality in the region of the craniocervical junction and no focal signal abnormality “in relation to the substance of the cervical cord.” There was “No focal disc prolapse or evidence of central canal or foraminal narrowing.” A “dominant left vertebral artery” was noted as an incidental finding.
Dr Bittar stated in his report of 18 November 2004 that the cervical MRI scan showed no significant abnormalities. Mr Cox was tender on the greater occipital nerve on the left side, which caused radiation of the pain over his vertex in the same region he described the headaches. He referred Mr Cox to Dr Vallipuran, a pain specialist, and Dr Krantz, a neurologist. It is not known if Mr Cox ever saw Dr Krantz.
Dr Vallipuran saw Mr Cox on 29 November 2004 and reported to Dr Bittar. He recorded that Mr Cox was in the course of going to work when he “bent down to pick up the radio and he coughed at the same time” when he experienced sudden pain in the back of the head that started in the neck radiating up to the back of the head on the left side and up to the back of the left eye. Dr Vallipuran referred Mr Cox to Ms Cornwall, psychologist, for assessment.
On 4 January 2005, Dr Coleman recorded that the pain in Mr Cox’s neck and shoulders was getting worse and that he could not sleep because of it. Dr Coleman prescribed Endone and later (April 2005) Oxycontin.
On 24 January 2005, Mr Cox saw Ms Cornwall. In her report of 1 February 2005, she recorded that Mr Cox “sustained an injury in March 2004 [sic] when he coughed as he bent down.” He reported feeling intense pain running up over his head. He was taken to hospital for observation, but he could not recall being in hospital. He reported a second episode of sharp pain in his head six days later. Mr Cox presented as an extremely intense, preoccupied man. Since the two incidents of severe head pain he has experienced chronic headaches, starting at the base of the skull and over the top of the head. The pain stops him from doing normal things. If he tries, the pain gets worse. Since the pain, Mr Cox reported having significant problems with cognitive functioning and trouble remembering things. Tests administered by Ms Cornwall suggested that Mr Cox had significant problems with cognitive functioning.
In February 2005, Dr Coleman referred Mr Cox to Dr Noone, chiropractor with The Melbourne Chiropractic Neurosurgeon-rehabilitation Group. Dr Noone’s “hypothesis” was that Mr Cox suffered a “biomechanical joint capsule disruption at the level of C1-2 on the left”.
On 3 March 2005, Mr Cox saw Associate Professor Stark, neurologist, on referral from Dr Vallipuran. He took a history that in June or July 2004, Mr Cox “coughed as he was bending over the [sic, to] turn on the radio and he developed sudden onset of pain in the left side of the base of the skull.” He also noted a “similar flare up of pain while in the lounge room” about a week later. Mr Cox complained of pain in the left side of the neck radiating to the left frontal region, which flared if he exerted himself, either physically or mentally. There was nausea and vomiting with a flare up of pain carrying wood or using a whipper snipper. The pain radiated to both shoulders. There were also cognitive difficulties and sometimes he was “slurry with his speech and may stop mid sentence.” The MRI’s and CT’s appeared normal to the Professor. He concluded that Mr Cox “clearly had some problem arising high in the cervical spine to explain his neck pain”, but he could not see “the structural basis” for it. He thought the cognitive symptoms reflected pain, sleep deprivation and various functional features, but he could not see any organic brain disturbance.
On 26 April 2005, Dr Coleman recorded that Mr Cox’s pain had gotten worse over the previous six weeks and he had been taking a lot of tablets. By 17 May 2005, Mr Cox had stopped taking any medication and was feeling a lot better.
In a report dated 30 June 2005, Dr Bittar noted that the left sided cervicogenic headaches persisted. However, Mr Cox had some slight overall improvement with his recent osteopathic treatment.
On 31 August 2005, Dr Coleman recorded that Mr Cox “had a turn” two weeks earlier and fell down two steps and had an unstable right knee.
Mr Cox underwent a brain MRI and MRA scan on 11 October 2005. The right vertebral artery was of “very small calibre, but in the cervical region there is no evidence of dissection.” The left vertebral artery was “dominant”.
In late 2005, Dr Coleman referred Mr Cox to Dr Todhunter, specialist in anaesthesia and pain medicine. In his report to Dr Coleman dated 5 December 2005, Dr Todhunter recorded that Mr Cox’s left occipital pain came on in June 2004 “when he was looking down to his left to turn on the Police car radio and coughed and felt a sudden severe pain in the left occipital region which lasted approximately 40 minutes”. About a week later he had a similar severe pain coming on suddenly while he was walking down the stairs at the back of his house and he fell to the ground injuring his right knee. Dr Todhunter observed that the “source of the pain” had not been worked out. He recommended a block of the third occipital nerve of the C2/3 facet joint.
On 13 January 2006, Mr Cox complained to Dr Coleman that he had been out of his analgesics for over a week and his head pain had been building up. Dr Coleman administered 120mgm of pethidine, which gave no real relief. Mr Cox was then given valium. Dr Coleman also gave a script for valium, which helped Mr Cox to sleep.
On 18 April 2006, Dr Coleman recorded that Mr Cox was having manipulation to his neck, which was “doing wonders”.
On 6 June 2006, Mr Cox underwent surgery to his right knee to repair a torn medial meniscus. In 2008 he underwent surgery to his left knee.
Mr Cox complained to Dr Coleman on 27 April 2007 and 23 July 2007 that his neck was “playing up”.
Mr Cox has continued to see Dr Coleman for various symptoms, including his knees, back and depression.
Dr Bittar reviewed Mr Cox on 29 March 2007 for the purpose of providing a medico-legal report. He recorded the following history:
“His problems began on June 13 2004. He was seated in a police car and reached down to the left hand side to adjust the police radio. He rotated his head to the left and as he did this he coughed. He experienced a sudden onset of severe left-sided neck pain which radiated through his occipital region to the vertex of his skull. He described it as a tearing pain. His pain persisted for several hours and was followed by neck stiffness and transient left arm and leg numbness. The latter symptoms had settled well before he consulted me.”
Dr Bittar diagnosed a “soft tissue neck injury” and “cervicogenic headaches.” Under “Causation”, he said:
“In my opinion these conditions are a direct result of the incident which occurred at work on June 13 2004. If he had not rotated his neck at the time that he coughed (a manoeuvre which was performed in order to activate his police radio), it is unlikely that he would have sustained these injuries. Furthermore, there is no evidence of any pre-existing conditions.”
The doctor added that in his opinion “the incident at work on June 13 2004 was a significant, and indeed the dominant, contributing factor to his injuries.”
Dr Patrick, surgeon, saw Mr Cox for medico-legal purposes on 23 August 2007. In his report of 5 September 2007, Dr Patrick noted that Mr Cox had a poor recall of the incident. He recorded the following history:
“He was on call – travelling on his way to work – driving. He was in a police motor vehicle and was just about 500 metres from home when he reached down to his left to turn on the police radio. It is likely that his neck was somewhat laterally rotated to the left at the time, and somewhat flexed and laterally flexed.
While doing this he coughed, and had immediate sharp, severe pain in the left side of his neck and head, and at the occipital region posteriorly. The pain was so severe he had difficulty moving. He had poor recall, but believes he pulled over to the side of the road within 800 metres or so. It took him about 40 minutes or so to start to recover.
He had some continuing neck discomfort and stiffness and subsequently had some numbness and weakness in left sided limbs, both arm and leg.”
Under “Opinion”, Dr Patrick said:
“Mr Paul Cox I believe, has sustained significant but self-limiting neurological incident when travelling on his way to work on 13 June 2004 in the circumstances described, when he has rotated his head to the left, leaning down within the car to turn the police radio on, probably with some associated flexion/lateral flexion movement combined with the lateral rotation of the cervical spine.
Subsequent imaging studies have demonstrated a developmentally very dominant left vertebral artery with associated hypoplastic right vertebral artery. It is more common than not for vertebral arteries to be of unequal diameter, and more common for the left vertebral artery to be dominant (in terms of diameter and blood flow) compared to the right. This is developmental.
It is not unknown for dominant arteries to be associated with neurologic sequelae in association with head rotation, and such neurologic events can present in a number of different ways, and can be transient.
Nevertheless, I do believe that the incident of 13 June 2004 does represent a significant work-related injury associated with the head/neck movement, and this has converted an asymptomatic developmental condition into a symptomatic condition, with likely continuing significant vascular headache.
…
Nevertheless, I do believe that Mr Paul Cox’s employment/work has been a substantial contributing factor to his injuries sustained on 13 June 2004, and his ongoing significant condition now.
It does appear likely that the fall which has resulted in his right knee injury on 25 August, has arisen as a result or consequence, of the earlier work injury of 13 June 2004.”
The Police Force’s Medical Evidence
The insurer arranged for Mr Cox to be examined by Dr Jensen, neurosurgeon, on 22 November 2004. He took the following history:
“Mr Cox stated that on 13 June 2004, while driving his motor vehicle, he coughed and experienced a tearing pain in his head, the worst headache he had ever experienced, and this pain lasted for a period of some forty minutes. He was not able to use his upper limbs properly, and he had to call for his wife to take him to the local hospital. He was aware of numbness and tingling, associated with weakness in the left upper limb, and also the left lower limb.
During the day the pain waxed and waned, and he was observed in hospital for some hours and then discharged.
About a week later he coughed again and experienced a similar pain but without limb symptoms, and was referred for a specialist opinion. Investigations were undertaken, including magnetic resonance angiography, and no definite diagnosis appears to have been made. He is said to have had a lumbar puncture which showed a high protein level.”
On examination, Dr Jensen noted Mr Cox to have a full range of cervical movement, with slight pain being experienced on full lateral flexion and full right rotation. There were very subtle, even questionable, sensory changes on the left in the C2, C3 and C4 dermatomes. Mr Cox complained of throbbing pain in both shoulders, more on the right side, extending onto the left side of the head and forehead together with tingling in the right hand from time to time.
Dr Jensen noted that no clear diagnosis had been established. A differential diagnosis would include:
“1.Subarachnoid haemorrhage due to occult aneurysm in the posterior circulation, or arterio-venous malformation.
2.Arterial dissection, not visible on magnetic resonance angiography.
3.Disorder of the upper cervical spinal column, perhaps an intervertebral disc lesion.
4.Spontaneous cerebro-spinal fluid fistula in the upper cervical spine.”
On the question of causation, Dr Jensen said:
“This event happened in the course of the day and, in my view, it is not related to employment. There is no evidence of trauma or any employment-related activity being present at the time of onset, and the onset of symptoms simply began while he was at work. I do not think therefore that his employment is a substantial contributing factor.
While a diagnosis has not been established, it is not possible to ascribe a cause.”
Under “General Remarks”, Dr Jensen added:
“Regardless of the diagnosis which may eventually be made, there does not seem to be any connection between the severe headache which he experienced and his actual employment. Symptoms simply began when he was working, but I do not think work itself has any relationship to the problem. In other words, these symptoms could almost certainly have begun at any time during the twenty-four hours of the day.”
The insurer referred Mr Cox for assessment by Dr Stuart, consultant neurosurgeon, on 19 July 2005 (report 23 July 2005). He took a history that in June 2004 Mr Cox was going to work and “bent over whilst driving to turn his police radio on, when he felt a sudden pain in the back of his head.” He had a second episode of sudden intense pain about one week later. Mr Cox felt like he had a bad hang-over all the time; he was forgetful and had intermittent nausea and vomiting. On examination, Mr Cox demonstrated a satisfactory range of neck movement with no stiffness. He complained of pins and needles in his feet and hands and possible weakness of his left hand.
Dr Stuart concluded:
“Mr Cox suffers with chronic headaches following what can be presumed to be a subarachnoid haemorrhage in June 2004. No cause for the haemorrhage was found on appropriate investigations. However, he underwent a lumbar puncture at some stage, following the sudden headache and was told that there was a high protein level in the spinal fluid. Appropriate investigations have revealed no abnormality and there is no abnormality on physical examination and no neurological deficit.
The features are consistent with the stated cause.”
In response to the question of what caused the current condition, Dr Stuart said:
“I am not of the opinion that his employment with NSW Police is a cause of the condition. If the condition was a subarachnoid haemorrhage, it was a spontaneous event unrelated to his employment.
As indicated above, I am not of the opinion that employment is a substantial contributing factor.
Other causes of the condition include ruptured aneurysm or bleeding from arteriovenous malformation. These conditions have been excluded by MR angiography.”
Dr Stuart reviewed Mr Cox on 6 March 2006 (report 7 March 2006) and re-questioned Mr Cox in order to confirm the previous historical details of the injury on 13 June 2004. Mr Cox agreed with all aspects of the earlier report of 23 July 2005. Physical examination was as per the previous examination. The doctor concluded that Mr Cox was suffering from chronic pain syndrome. Whilst the features were said to be consistent with the stated cause, Dr Stuart added that the cause was unknown. In answer to the question of whether Mr Cox’s condition was work-related, Dr Stuart said, “Although his initial symptoms on 13 June 2004 occurred while he was on police duties the symptoms can no longer be attributed to his work.”
Dr Stuart reviewed Mr Cox again on 18 February 2008 (report 20 February 2008). Mr Cox’s symptoms continued, but they were not as severe as before and he had more of a neck ache than a headache. Findings on examination were the same as at the previous examination. Mr Cox had a full range of voluntary neck movements.
Under “Opinion”, Dr Stuart said at paragraph 18:
“I consider that the current condition and disability is consistent with the injuries which are alleged to have occurred as the result of the work associated accident.”
Dr Stuart said that he considered employment was a substantial contributing factor to the injury and referred to each of the sub-sections of section 9A(2). In respect of sub-section (d) of section 9A(2) (the probability the injury would have happened anyway at about the same time or same stage of the worker’s life, if he or she had not been at work or had not been in the employment), Dr Stuart said:
“I consider that Mr Cox’s employment was a substantial contributing factor to the injury, taking into account the time and place of the injury, the nature of the work performed, the duration of the employment.
It is unlikely that the injury or a similar injury would have happened at about the same time or at the same stage of the worker’s life if he had not been at work or had not worked in that employment.”
Dr Stuart added that Mr Cox’s state of health was good prior to the injury and there was no evidence of hereditary risks. Nor, the doctor observed, was there evidence of Mr Cox’s lifestyle or his activities outside the workplace causing illness or disease.
In expressing his opinion that Mr Cox’s employment was a substantial contributing factor to the injury, Dr Stuart noted the insurer’s solicitor’s reference in the referring letter to the decisions of Bishop CCJ in Mercer v ANZ Banking Group Ltd (1998) 17 NSWCCR 264 and the decision of Neilson CCJ in Stewart v NSW Police Service (1998) 17 NSWCCR 202 (‘Stewart’) (wrongly spelt “Stuart” in the doctor’s report) where it had been held that substantial meant “more than minimal, large or great” (Bishop CCJ) and “weighty, big or great factor” (Neilson CCJ).
In response to a letter from the Police Force’s solicitors (DLA Phillips Fox) dated 28 February 2008, Dr Stuart reported again on 7 March 2008. Though the letter is not in evidence, Dr Stuart has purported to reproduce in his report several of the paragraphs from it. The letter allegedly said:
“At the outset, we apologise for any confusion caused by our previous letter of instruction. Pursuant to Section 9A(4) of the Workers Compensation Act 1987 (NSW) (Act), section 9A is not to be considered if an alleged injury occurs on a journey to or from work. That is, it is not to be considered whether employment ‘substantially contributed to’ an alleged injury.”
Dr Stuart responded as follows:
“In light of this section, I revert to my original opinion that employment was not a substantial contributing factor to the alleged injury.”
The letter from DLA Phillips Fox allegedly continued by stating that the “correct threshold” was whether the injury arose out of or in the course of the employment. In that regard, the solicitors referred to the decision of Craske v Wigan [1909] 2 KB 635 at 638 (‘Craske’), and said that a worker had to “be in a position to affirm”, based on Craske, that “The accident arose because of something he was doing in the course of employment or because I [sic, he] was exposed by the nature of his employment to some peculiar danger.”
In response, Dr Stuart said:
“I refer back to my original report where I indicated that the haemorrhage occurred while he was driving to work and bent over to turn the police radio on. This does not indicate that he was exposed to some particular danger. The haemorrhage was a spontaneous subarachnoid haemorrhage which could have occurred at any time whilst driving.”
The solicitors then referred to the judgment of Jordan CJ in Nunan v Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119 and purported to quote his Honour as saying “If it appears that the fact of the worker’s being employed in that particular job caused, or to some extent contributed to, the injury, then the injury can be said to have arisen out of his employment.” In fact, his Honour said (at 124):
“As the law now stands, I am of opinion that when a worker has proved an incapacitating personal injury, then if it appears (1) that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury, and also (2) that the injury was sustained whilst he was doing the job which he was employed to do or something incidental to it, he is prima facie entitled to compensation; and it is for the employer to show if he can that there is something which disentitles him to compensation, or to full compensation.”
In light of his earlier answer, Dr Stuart said this was not applicable.
On the question of the cause of the subarachnoid haemorrhage, Dr Stuart said that it was spontaneous, that is, there was no known cause and “It may have arisen irrespective of any duties he was performing at the time of the accident.” He did not consider that “Mr Cox’s duties as a police officer or his conduct in employment caused a subarachnoid haemorrhage.” He repeated the opinion he expressed in his first report, namely, that the subarachnoid haemorrhage was a spontaneous event unrelated to his employment.
THE ARBITRATOR’S REASONS
In his Statement of Reasons for Decision (‘Reasons’), the Arbitrator noted and found:
(a)the most likely diagnosis was that given by Dr Bittar, namely, that Mr Cox suffered a soft tissue neck injury with cervicogenic headaches (Reasons, paragraph 21);
(b)that the incident occurred whilst Mr Cox was reaching to adjust the car radio and had a coughing fit (Reasons, paragraph 28);
(c)the Court of Appeal held in Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’) that for a contributing factor to be substantial it must be “more than minimal, large or great” (Mason P (at [27]) approving the approach taken at first instance by Bishop CCJ). The term is used in its relative sense requiring a weighing up of the various factors which have contributed to the injury (Reasons, paragraph 31);
(d)the injury happened when Mr Cox had a coughing fit whilst bending to adjust or turn on the car radio (Reasons, paragraph 32);
(e)Dr Bittar considered Mr Cox’s condition was a direct result of the incident that occurred at work on 13 June 2004. The Arbitrator understood Dr Bittar’s opinion to be that the injury was caused by a combination of the coughing and the fact that Mr Cox’s head was rotated at the time the coughing occurred (Reasons, paragraph 33);
(f)the coughing was not related to Mr Cox’s employment. The other contributing factor identified by Dr Bittar was that Mr Cox’s head was turned to adjust the police radio at the time the coughing fit occurred. Mr Cox was carrying out his employment duties when performing that task. It followed that to the extent the turning of the head contributed to the injury, employment was a contributing factor (Reasons, paragraph 34);
(g)Dr Patrick held a similar view to Dr Bittar (Reasons, paragraph 35);
(h)Dr Jensen did not take a history of Mr Cox’s head being turned to adjust the police radio at the time of the coughing fit. He did not consider what position Mr Cox’s head was in at the time of the coughing fit and did not consider whether the positioning of Mr Cox’s head contributed to the injury. Therefore, his opinion was of no assistance (Reasons, paragraph 36);
(i)Dr Stuart’s opinion kept changing. Craske is no longer good law. It is not essential for a worker to prove that employment created a special danger or added peril (Mercer). When Dr Stuart turned his mind to the proper test (in his second report) his opinion was that employment was a substantial contributing factor (Reasons, paragraph 39);
(j)as he understood Dr Bittar’s opinion, the injury occurred because Mr Cox’s head was turned at the time he had the coughing fit. If his head had not been turned it is not known whether the injury would have occurred. The fact that Mr Cox’s head was turned was a contributing factor that was more than minimal. He was satisfied that Mr Cox’s employment was a substantial contributing factor to the injury (Reasons, paragraph 40), and
(k)the knee injury on 25 August 2005 was caused by the continuing effect of the injury on 13 June 2004 (Reasons, paragraph 41).
ISSUES IN DISPUTE
The Police Force argues that the Arbitrator erred in:
(a)failing to give appropriate weight to the contemporaneous medical evidence regarding the mechanism of injury;
(b)finding Mr Cox’s employment was a substantial contributing factor to the injury;
(c)his application of section 9A of the 1987 Act to the facts found;
(d)accepting the evidence of Dr Bittar. Reliance is placed on South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 (‘Edmonds’), and
(e)his interpretation and application of section 4 of the 1987 Act regarding injury, which impacted on his considerations under section 9A.
There is also an issue as to whether Mr Cox is entitled to rely on the journey provisions in section 10 of the 1987 Act.
SUBMISSIONS
Substantial Contributing Factor
It is submitted on behalf of the Police Force:
(a)the Arbitrator erred in law in finding that Mr Cox suffered an injury whilst bending and/or turning his head as there was no relevant and probative material capable of supporting that finding of fact;
(b)there is no contemporaneous evidence in support of Mr Cox’s contention that he was bending down in an attempt to adjust the police radio. There is no evidence that he had “turned his head”. The histories in the reports from Drs Coleman, Ring and Jensen all indicate that Mr Cox simply coughed before developing violent head pain. The medical certificates from Dr Coleman dated 28 June 2004, 23 August 2004 and 4 January 2005 referred to “cough-headache-viral syndrome”;
(c)the Arbitrator erred in saying that the histories recorded by Drs Coleman, Ring and Jensen were not inconsistent with Mr Cox’s evidence. Where there was no contemporaneous evidence, it was not open to the Arbitrator to find that Mr Cox turned his head. Mr Cox’s evidence made no mention of him turning his head until his third statement dated 17 December 2007, three years after the event;
(d)Dr Bittar’s history of Mr Cox turning his head was taken four months after the incident;
(e)Dr Patrick noted that Mr Cox had a poor recall of the incident and recorded that it was “likely” that Mr Cox’s neck was rotated and flexed. That history did not come from Mr Cox but was an inference unreasonably and unreliably drawn by the doctor;
(f)the histories by Professor Stark, Dr Todhunter and Ms Cornwell that Mr Cox coughed as he “bent down” were all provided more than seven months post injury. It was not open to the Arbitrator to infer that “bent down” or “reached down” was the same as “turning the head”;
(g)reliance is placed on the authority of Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’) where Dixon CJ said at 305 “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (approved in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66 (‘West’));
(h)it is for the party who asserts a particular fact to prove it by direct evidence or by circumstantial evidence (Seltsam v McGuiness (2000) 49 NSWLR 262 (‘Seltsam’). The evidence is not sufficient to establish that Mr Cox’s head was turned and/or that he bent down;
(i)the Arbitrator erred in his application of the principles discussed in Mercer and applied in Murray v Shillingsworth [2006] NSWCA 367; (2006) 68 NSWLR 451; (2006) 4 DDCR 313 (‘Murray’), because there was no indication in any of the medical reports other than that of Drs Bittar and Patrick that Mr Cox’s employment related task was a substantial contributing factor to his injury;
(j)the relevant medical reports all noted that it was only after coughing that Mr Cox suffered injury and the Arbitrator accepted that the coughing fit was not work related;
(k)on the weight of the medical evidence, the Arbitrator erred in finding that turning on the police radio was a contributing factor that was more than minimal;
(l)the Arbitrator found that the incident occurred while Mr Cox was “reaching to adjust the car radio and had a coughing fit” (Reasons, paragraph 28) without finding that he turned his head. Even if this finding (which is challenged as being wrong) is upheld, the Arbitrator has misapplied section 9A to the facts he found because he concluded that employment was a contributing factor “to the extent the turning of the head contributed to the injury” (Reasons, paragraph 34) when he only found Mr Cox had reached to adjust the radio, but did not find that he had turned his head;
(m)in circumstances where it is not accepted as a fact that Mr Cox turned his head, and there is no medical support that reaching for the radio contributed to the injury, the employment was not a substantial contributing factor to the injury;
(n)Mr Cox’s medical evidence, in particular Dr Bittar’s report of 29 March 2007, did not meet the requirements for expert opinion set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’), Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) and Edmonds;
(o)Dr Bittar did not provide an explanation of the alleged effect turning Mr Cox’s head had on the injury, or how it contributed to the pathology in question. That is, the doctor’s conclusion was a bare ipse dixit and cannot be used as a basis for any reasoned conclusions;
(p)further, Dr Bittar’s opinion was not wholly or substantially based on his expert knowledge. Insofar as it was based on assumed or accepted facts, those facts were not identified and proved by any contemporaneous material in Mr Cox’s case. Dr Bittar’s opinion was insufficient to establish that Mr Cox turned his head or that any such work related activity was causative of the condition;
(q)Dr Patrick’s report is “plagued” by the same issues as Dr Bittar’s. He did not take a history of Mr Cox’s head being turned, but assumed that was the case. Dr Patrick did not state that it was probable or even likely that Mr Cox’s developmental condition (a dominant left vertebral artery) was associated with neurological symptoms associated with head rotation, but only that it is “not unknown” for that to occur;
(r)in the same fashion as Dr Bittar’s, Dr Patrick’s opinion was not “wholly or substantially based on the witness’s expert knowledge” (Makita at [85]). Insofar as their opinions were based on “assumed” or “accepted facts”, those facts were not identified and proven by any contemporaneous material;
(s)the Arbitrator erred in finding that there was an available inference that “the fact that the applicant’s head was turned is a contributing factor which was more than minimal” (Reasons, paragraph 40);
(t)though the Police Force does not argue that Mr Cox suffered an injury in the course of his employment, the precise nature of the injury is unknown and influences any decision on whether the employment was a substantial contributing factor;
(u)the Arbitrator noted that there was some support for a vertebral artery dissection in June 2004, but no evidence of such dissection by the time of the MRI on 11 October 2005. He then found that the most likely diagnosis was that of soft tissue neck injury with cervicogenic headaches. In doing so, the Arbitrator has fundamentally misapplied the provisions of section 4 of the 1987 Act. The injury occurred on 13 June 2004 and consideration of issues at 11 October 2005 is irrelevant. The Arbitrator has therefore allowed his decision to be coloured by irrelevant or extraneous factors and has committed an error of law. Whether there was any injury by way of MRI on 11 October 2005 is entirely irrelevant to a consideration of “injury” and/or substantial contributing factor, and
(v)the Arbitrator failed to have regard to the MRI scan of 18 June 2004, which reported that Mr Cox’s symptoms were subsiding. Therefore, the Arbitrator’s reason for discounting the opinion of Dr Jensen is inaccurate in attempting to establish the injury suffered on 13 June 2004.
It is submitted on behalf of Mr Cox:
(a)in weighing up the medical evidence, the Arbitrator made specific reference to the evidence of Dr Bittar who had a history of Mr Cox reaching for the police radio and rotating his head;
(b)after considering the express provisions of section 9A(2) the Police Force’s own medico-legal expert, Dr Stuart, stated in his report of 20 February 2008 that Mr Cox’s employment was a substantial contributing factor to his injury. The Arbitrator noted that Dr Stuart changed this opinion after having been referred to Craske, a case that is no longer good law;
(c)the Police Force’s submissions deny the weight of the evidence from Dr Stuart and Dr Bittar;
(d)the Arbitrator has arrived at the correct decision;
(e)the evidence of Dr Bittar should be given substantial weight, as the history the doctor took accords with Mr Cox’s evidence and the various reports dealing with the mechanism of injury;
(f)Dr Bittar took a full history of the mechanism of the injury, noted Mr Cox’s complaints and referred to the investigations before arriving at his diagnosis. Therefore, Dr Bittar’s report provided a powerful and cogent basis for evidence brought on behalf of Mr Cox;
(g)the expert best placed to assess the scope and compass of Mr Cox’s injury was the treating neurosurgeon, Dr Bittar, who diagnosed a soft tissue neck injury with cervicogenic headaches. Dr Patrick expressed a similar view. The Arbitrator accepted that diagnosis;
(h)the Arbitrator correctly noted that Dr Jensen did not take a full history of the mechanism of injury and therefore arrived at an erroneous determination, and
(i)the Police Force did not challenge Mr Cox’s evidence by cross-examining him.
The Journey Claim
At the oral hearing of the appeal, counsel for Mr Cox submitted that his client was entitled to succeed because his injuries were sustained while he was on a journey to which section 10 of the 1987 Act applies. He argues that a worker’s rights under section 10 are concurrent with his or her rights under section 4. In support of this submission he relies on Thompson v Lewisham Hospital [1978] WCR 111 at 118 (‘Thompson’); Havard v Illawarra Meat Co Ltd [1956] WCR 4 at 5 (‘Havard’); Kyriakidas v Rondo Building Services [1974] WCR 62 at 63 (‘Kyriakidas’); Coles Myer Logistics Pty Ltd v Lee [2007] NSWWCCPD 141 (‘Lee’), the text, New South Wales Workers Compensation, 2nd edition, by C P Mills at page 197 (‘Mills’), and section 10(5A) of the 1987 Act.
The Police Force submits that once it is accepted that Mr Cox was in the course of his employment there is no scope for the operation of the journey provisions in section 10 and that none of the authorities cited by Mr Cox support his position. In the alternative, if Mr Cox is entitled to rely on the journey provisions, it relies on section 10(1D), and submits that Mr Cox’s injury resulted from his medical or other condition; namely, his viral condition and/or cough and the journey did not cause or contribute to the injury. Subsection 10(1D) provides:
“Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.”
DISCUSSION AND FINDINGS
Substantial Contributing Factor
The submission that it was not open to the Arbitrator to find that Mr Cox turned his head or reached for the radio because there was no contemporaneous evidence of that fact is incorrect. There is no principle of law that a finding of fact can only be made if there is a contemporaneous record of the existence of the particular fact. Nevertheless, if there is no contemporaneous evidence to support a later assertion of fact, it may make it less likely that a tribunal of fact will be satisfied that, on the balance of probabilities, the particular assertion of fact is accurate.
The lack of any entry in the notes or reports from Drs Coleman, Ring or Jensen that Mr Cox ‘turned his head’ or ‘reached down’ or ‘bent down’ when coughed is not determinative of that issue. What is required is a consideration of all the evidence. The near contemporaneous evidence from Dr Coleman is important and entitled to careful consideration. He took a detailed and clear note of the incident: Mr Cox developed his symptoms following an “explosive bout of coughing” after having had two days off work with a heavy cold or flu. This entry is consistent with Dr Coleman’s first medical certificates in which he described the “injury/disease” as “coughed - splitting - headache - partial paresis (L) arm (L) leg.” There is no reference in either Dr Coleman’s notes or his first medical certificates about Mr Cox reaching down or turning his head at the time he coughed.
The next doctor Mr Cox saw was Dr Ring, a neurologist and neurophysiologist, who he saw on 18 June 2004, five days after the incident. Dr Ring took a more detailed history. He noted the viral infection and the symptoms Mr Cox experienced because of it: the sore throat, blocked nose and coughing. He then recorded that Mr Cox coughed (which he described as “violent”) and developed sharp pain in his upper cervical spine and head together with left arm and leg numbness. He also referred to Mr Cox being nauseous, having mild photophobia, and ongoing tingling in the left arm and leg. This history was repeated and expanded in his report to Dr Coleman dated 21 June 2004 where he noted that Mr Cox’s headache began “over a week ago” (that is, before 13 June 2004) and that “when he coughed he developed a ‘violent’ headache in the upper cervical and occipital region radiating to the vertex which persisted for several hours.” Dr Ring made no mention of Mr Cox reaching down or turning his head at the time he coughed.
The absence of any mention of Mr Cox reaching down or turning his head to turn on the police radio at the time he coughed in the notes and documents from Drs Coleman and Ring is significant and raises doubts about whether the incident occurred as he now asserts.
Excluding radiologists, the next specialist Mr Cox saw was Dr Bittar who examined him on 14 October 2004. For the first time, four months after the event, a history was recorded that Mr Cox turned his head to adjust the radio when he coughed explosively and developed left-side neck pain on “13 July 2004” [sic].
Next, Mr Cox saw Dr Jensen at the request of the insurer on 22 November 2004 who recorded that “while driving his motor vehicle, he coughed and experienced a tearing pain in his head”, but took no history of reaching down or turning the head.
Dr Vallipuran saw Mr Cox on 29 November 2004, on referral from Dr Bittar, and recorded that Mr Cox “bent down to pick up the radio and he coughed at the same time” when he experienced sudden pain in the back of his head that started in the neck and radiated up the back of the head on the left side to the left eye.
The first history to suggest any movement to adjust the radio at the time of the cough was not until Dr Bittar’s report four months after the incident. In Mr Cox’s first statement (dated 29 March 2006) he said he “reached down to [his] left” when he coughed and developed pain. He repeated this description in his statement of 21 January 2007. It was not until his statement of December 2007 that he gave a description of his head and neck being “turned and angled down” when he coughed “to clear [his] throat”.
Given this change in Mr Cox’s description of the incident and the significant delay before the first history of turning the head, the following evidence from Ms Cornwall and Dr Patrick is relevant. Ms Cornwall’s evidence in her report of 24 January 2005 is that Mr Cox reported having significant problems with cognitive functioning and trouble remembering things since the development of his pain. Dr Patrick’s evidence in his report of 5 September 2007 is that Mr Cox had a “poor recall of the incident”. In these circumstances, I believe that the detailed histories recorded by Drs Coleman and Ring within days of the incident are more likely to be an accurate account of what happened on the morning of 13 June 2004. Having regard to the whole of the evidence, and having given due consideration to the histories recorded by Dr Bittar, Ms Cornwall, Dr Todhunter, and Associate Professor Stark, I do not accept that Mr Cox was reaching for, bending towards, or turning his head towards the police radio when he coughed on the morning of 13 June 2004.
That being so, there is no factual basis for the conclusions reached by the Arbitrator and Mr Cox’s claim must fail. It also follows that the assumptions on which the opinions of Drs Bittar and Patrick are based, namely, the rotation of the head (Dr Bittar) and the lateral rotation of the neck to the left with flexion and lateral flexion (Dr Patrick), have not been proved and their opinions are of no weight (Makita at 731).
If I am wrong in this conclusion and Mr Cox did turn his head towards or reach for the radio when he coughed, for the reasons set out below, I am not satisfied that the evidence establishes that the act of turning his head and/or reaching for the radio played any role in the development of his injury or symptoms.
Even if it is assumed (contrary to my finding) that the factual basis for the opinions of Drs Patrick and Bittar is established (coughing with the head turned or flexed while reaching for the radio), they did not explain how it was that that activity caused or contributed to Mr Cox’s injury. After noting that Mr Cox has a developmental abnormality, namely, a very dominant left vertebral artery, Dr Patrick said it was “not unknown for dominant vertebral arteries to be associated with neurologic sequelae in association with head rotation” (Dr Patrick, 5 September 2007, page seven). He then said that the incident on 13 June 2004 represented a “significant work-related injury associated with the head/neck movement, and this has converted an asymptomatic developmental condition into a symptomatic condition”. The basis for his conclusion is not explained in any way. Similarly, Dr Bittar offered no explanation for his conclusion connecting the head rotation and the development of the soft tissue neck injury and the cervicogenic headaches that he diagnosed.
Their conclusions are no more than bare “ipse dixits” (Makita and Edmonds at [130] and [131]) that are unsupported by any reasoning or analysis. The omission of such an analysis can sometimes be overcome by the use of “commonsense” in the evaluation of evidence and the “sequence of events” (Hevi Lift at [90]). However, the incident on 13 June 2004 and its consequences were not within “the realm of common knowledge and experience” referred to by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91]) that would enable an arbitrator or a Presidential member to rely on his or her “commonsense” to conclude that there was a connection between coughing while reaching, or coughing with the head turned or rotated, and the development of Mr Cox’s symptoms.
Whilst I agree that the Commission, like the Compensation Court before it, is a specialised tribunal that may in some respects be “seen as having experience enabling it to draw inferences from facts which an ordinary tribunal may not” (MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 489 (cited in Hevi Lift at [92]), it is not appropriate for the Commission to draw a conclusion of the kind urged by Mr Cox without appropriate expert evidence (Edmonds at [130]).
The opinions of Drs Bittar and Patrick are further undermined because neither had a history of Mr Cox’s symptoms caused by his viral infection in the days leading up to 13 June 2004, nor of the unusual neurological symptoms he developed in 1993. Therefore, the assertions that there was no evidence of any pre-existing condition (Dr Bittar) and no relevant history (apart from a history of a prior injury to the left knee) (Dr Patrick), were incorrect.
I have carefully considered the whole of the medical evidence in this case. The only other evidence that might support Mr Cox’s claim is the evidence in Dr Stuart’s report of 20 February 2008. As with the reports from Drs Patrick and Bittar, this report is also flawed in that the factual assumption on which it is based, namely, that Mr Cox felt sudden pain in his head as he bent over to turn on the police radio, is not correct. Further, regardless of this error, given that Dr Stuart changed his opinion several times and failed to adequately explain his change of position (though certainly he was not assisted by the Police Force’s solicitor’s misleading and inaccurate letters) and given that his diagnosis of a subarachnoid haemorrhage has not been established by the extensive investigations undertaken, I do not place any weight on his evidence.
Considering the terms of section 9A(2) of the 1987 Act, I make the following observations and findings:
(a)“the time and place of injury”: the incident took place early in the morning when, as was conceded by his counsel, Mr Cox was in the course of his employment;
(b)“the nature of the work performed and the particular tasks of that work”: the task performed was driving the police car in the course of employment;
(c)“the duration of the employment” is a neutral factor of no consequence;
(d)“the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”: there is a high probability that the injury would have happened anyway at the same stage of Mr Cox’s life if he had not been at work or not worked for the Police Force. I accept Dr Jensen’s evidence that the symptoms could “almost certainly have begun at any time during the twenty-four hours of the day.” This conclusion is reinforced by the fact that Mr Cox experienced identical symptoms when he coughed at home on or about 20 June 2004 (see Dr Coleman’s notes of 21 June 2004 quoted at [30] above) and is consistent with Dr Ring’s opinion that Mr Cox’s headache was “mediated through intracranial pressure related to coughing i.e. ‘benign cough headache’”;
(e)“the worker’s state of health before the injury and the existence of any hereditary risks”: at the time of the incident, Mr Cox had a viral infection resulting in a sore throat, headaches and repeated dry cough (Dr Ring’s report 21 June 2004). The viral condition caused him to cough and his injury and symptoms have resulted from that cough. Neither the viral condition nor the cough had any connection with Mr Cox’s employment, and
(f)“the worker’s lifestyle and his or her activities outside the workplace”: there are no lifestyle matters relevant in this claim.
In all the circumstances, I do not believe it can reasonably be concluded that Mr Cox’s employment played any role in causing his injury. I am comfortably satisfied, based on the evidence from Drs Ring and Jensen, that Mr Cox’s symptoms were caused by the viral infection he had and the “explosive bout of coughing” referred to in Dr Coleman’s notes on 14 June 2004. That coughing had nothing to do with Mr Cox’s employment.
The Journey Claim
I do not accept the argument that Mr Cox was on a journey within the meaning of section 10 of the 1987 Act at the time of the incident on 13 June 2004. The authorities cited do not support the proposition advanced on behalf of Mr Cox.
In Havard, the worker attended his place of employment pursuant to his contract of service and then, during his lunch break, which was an ordinary recess under the Workers Compensation Act 1926 (‘the 1926 Act’), he returned to his home where he had lunch. During his absence from work he sustained an injury. On appeal, Roper CJ in Eq (Ferguson and Manning JJ concurring) rejected an argument that the journey provisions were intended to be comprehensive and excluded any possible recovery compensation under the recess provisions.
As in Havard, the issue in Thompson concerned the recess provisions in the 1926 Act. The Court of Appeal held that a worker who leaves the workplace during a lunch break or other recognised interval is not necessarily outside the course of his or her employment. An “ordinary recess” did not cease to be so because it could be said also that the employee was within the course of employment at the same time. Glass JA (Hope JA agreeing) observed (at 118):
“There is nothing in the [1926] Act which requires the various kinds of entitlement to compensation to be placed in watertight and mutually exclusive compartments and forbids any construction which provides for a common area between their respective spheres of operation.”
After referring to Havard, his Honour added:
“It follows that a period of rest which would otherwise fall within the statutory definition of ordinary recess does not fail to do so because the employee during its duration can be said also to be in the course of his employment. Indeed it is an everyday experience of which one may take judicial notice that employment breaks for morning and afternoon tea and even lunch are sometimes allowed upon the understanding that if an emergency arises the recess will be interrupted.”
In Kyriakidas, Langsworth J held that a worker who received an injury travelling from his place of work to his home during a meal break could claim compensation on the basis that the injury was received, either on a periodic journey or during an ordinary recess. The two provisions were not mutually exclusive.
In Lee, the worker was held to have been on an “associated journey” under section 12 of the 1987 Act at the time of his injury. It has no application to the present matter.
The passage relied on from Mills is at page 197. It reads:
“It seems proper to regard these provisions [the journey and recess provisions] as supplementary to the provisions in par (1)(a), so that the journey and recess provisions do not operate so as to cut down an entitlement to compensation under par (1)(a) of this section [section 7 of the 1926 Act], which refers to injuries arising out of or in the course of the employment, in the strict sense. The general effect of the journey provisions has been said to extend the course of the employment to cover the specified journeys; Slazenger (Aust) Pty Ltd v Burnett [1951] AC 13 (PC). Hence, any entitlement to compensation which would otherwise arise in respect of journeys and intervals between work periods is unaffected by the journey and recess provisions:”
The above authorities do not apply to the present claim. A personal injury received by a worker on any journey to which section 10 of the 1987 Act applies is, for the purposes of the 1987 Act, an injury arising out of or in the course of employment. Effectively, a worker on a section 10 journey is deemed to be in the course of his or her employment in circumstances where, but for this provision, no compensation would be recoverable.
The journeys to which section 10 applies are listed in section 10(3) and include “the daily or other periodic journeys between the worker’s place of abode and place of employment”. For the purpose of section 10, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, “the boundary of the land on which the place of abode is situated” (section 10(4)). Place of abode is defined in section 10(6).
There is no definition of “place of employment” and there is no commencing or finishing boundary for a worker’s “place of employment”. That there is no definition of “place of employment” or boundary line for a “place of employment” is important in the context of the present argument. It acknowledges that a worker’s place of employment is not a fixed geographical location. Depending on the terms of the contract of employment, a worker’s place of employment can be anywhere the employer requires the worker to be to perform his or her duties or to engage in activities that are incidental to those duties (see Bull v Schweppes (Australia) Pty Ltd [1960] WCR 67 and Cunningham v Tobin & others t/as Stingray Café (2001) 21 NSWCCR 524 at [83]). It having been conceded that Mr Cox was in the course of his employment on the morning of 13 June 2004, his “place of employment” was the police car. Having arrived at his “place of employment”, he could no longer be on a journey within the terms of section 10.
Mr Cox also relies on section 10(5A), which provides:
“(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.”
I do not believe that this subsection assists Mr Cox. This subsection was introduced in Act 214 of 1989, the same time as the fault provisions (since repealed) were introduced. It is designed to permit the recovery of compensation in circumstances where a section 10 journey claim fails or is not open but a worker is otherwise entitled to receive compensation under another provision in the legislation. Mr Cox’s claim has failed because of the terms of section 9A, not because of the terms of section 10.
If I am wrong in my interpretation of section 10 and it is considered that the section is applicable to the current claim, the Police Force argues that Mr Cox has no entitlement because his injury has resulted from “the medical or other condition of the worker and the journey did not cause or contribute to the injury” (section 10(1D)). The “medical or other” condition relied on is the viral infection and coughing Mr Cox experienced in the days up to and including 13 June 2004 that caused his explosive coughing on that day. For the reasons set out at [103(d) and (e)] above, I am comfortably satisfied that Mr Cox’s injury resulted from his viral infection and the cough on 13 June 2004 and that the journey did not cause or contribute to the injury.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator reached an erroneous conclusion when he made an award in favour of Mr Cox. For the reasons given above, I am not satisfied that Mr Cox’s employment was a substantial contributing factor to his injury. I am not satisfied that section 10 of the 1987 Act applies to his claim. If I am wrong on the journey issue, I am comfortably satisfied that Mr Cox’s injury resulted from a medical or other condition, namely, a viral infection and cough, and that the journey did not cause or contribute to the injury. It follows that there must be an award for the Police Force.
DECISION
The Arbitrator’s determination of 22 October 2008 is revoked and the following order made in its place:
“1.Award for the respondent employer.
2.No order as to costs.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
27 February 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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