P Heckle Roofing Pty Limited v Peter John Roberts and Bunnings Building Supplies Pty Limited
[2007] NSWWCCPD 89
•5 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:P Heckle Roofing Pty Limited v Peter John Roberts and Bunnings Building Supplies Pty Limited [2007] NSWWCCPD 89
APPELLANT: P Heckle Roofing Pty Limited
FIRST RESPONDENT: Peter John Roberts
SECOND RESPONDENT: Bunnings Building Supplies Pty Limited
INSURER:Appellant: Gallagher Bassett Services
Second Respondent: CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC8727-06
DATE OF ARBITRATOR’S DECISION: 15 September 2006
DATE OF APPEAL DECISION: 5 April 2007
SUBJECT MATTER OF DECISION: Apportionment between employers; application of sections 22 and 22A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Edwards Michael Moroney
First Respondent: Brydens Law Office
Second Respondent: Lucas & Staggs
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 15 September 2006 is confirmed.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 10 October 2006, P Heckle Roofing Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 15 September 2006.
The Respondents to the appeal are Peter John Roberts (‘the First Respondent’) and Bunnings Building Supplies Pty Limited (‘the Second Respondent’).
The First Respondent commenced employment with the Appellant as a roof tiler in about 1998. On 8 June 1999, the First Respondent was carrying tiles over the rafters and battens of a house when a batten gave way and he fell approximately 20 feet onto a concrete floor at ground level. The First Respondent claimed that he “… landed on my left foot and fell to the ground.” The First Respondent injured his back and suffered a fracture to his left heel, and was off work for approximately two to three months.
The First Respondent was paid all entitlements for the period he was off work from 8 June 1999 until August 1999 by the Appellant’s insurer, Gallagher Bassett Services (‘GBS’).
The First Respondent remained in the employ of the Appellant until about November 2000 when he ceased for the purposes of taking up work with his brother’s company.
On 1 April 2002, the First Respondent commenced employment with the Second Respondent at its Auburn store. He initially commenced on a casual basis for the purposes of stock taking and commenced fulltime employment on about 20 May 2002 as a stockhand. His duties involved loading and unloading trucks and driving a forklift.
According to the First Respondent’s statement, “… one morning in about June 2002 I woke up with a sharp pain across my lower back. When I tried to stand up my left leg gave way …”. Radiological investigations revealed an L4/5 disc protrusion with compression of the L5 nerve root at that level. On 15 April 2003 Dr John Bentivoglio, Orthopaedic Surgeon, performed an L4/5 disc excision.
Following that surgery, the First Respondent did not resume any employment.
In August 2005, the Appellant and the First Respondent lodged an agreement pursuant to Section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) in the Commission whereby the Appellant agreed to pay to the First Respondent lump sum compensation in respect of a 20% permanent impairment of the back and 10% permanent loss of use of the left leg at or above the knee together with the sum of $10,000.00 pursuant to section 67. That agreement was expressed to be as a consequence of injury on 8 June 1999.
On 8 June 2006, the First Respondent lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from the Appellant and the Second Respondent. In that Application, the First Respondent nominated his date of injury with the Appellant as 8 June 1999. As against the Second Respondent, the First Respondent claimed that as a result of the “… nature and conditions of employment between 1 April 2002 and June 2002” he sustained injuries to his back and left leg.
The parties attended a conciliation/arbitration hearing on 1 September 2006. On 15 September 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. That the Second Respondent [Bunnings Building Supplies Pty Limited] pay the Applicant weekly compensation at the rate of the maximum statutory rate prescribed under s.37 of the Workers Compensation Act 1987 for a worker with no dependants, from 8 February 2004 to date and continuing.
2. That liability between the Respondents is apportioned 85:15 between the First Respondent [P Heckle Roofing Pty Ltd] and Second Respondent.
3.That the Respondents pay the Applicant’s costs as agreed or assessed.”
On 10 October 2006 the Appellant filed its appeal against the Arbitrator’s decision. On 23 November 2006 the Second Respondent filed a ‘Notice of Opposition to Appeal’. No ‘Notice of Opposition’ or submissions have been filed by the First Respondent.
The grounds of appeal and submissions in opposition will be dealt with below.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2)(a) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
By direction dated 16 October 2006, the Appellant was required to serve the appeal on both Respondents by 23 October 2006. In a letter to the Commission dated 3 November 2006, the Appellant advised that the appeal was not served on the Second Respondent until 3 November 2006 in default of the Registrar’s direction. This occurred as a result of “an administrative error” and the Appellant sought an extension of time in which to serve the appeal. That request was granted, and a further direction was issued by the Registrar on 16 November 2006 extending time for lodgement of any ‘Notice of Opposition.’
The Second Respondent filed its ‘Notice of Opposition’ on 23 November 2006.
I am satisfied with the explanation provided by the Appellant’s solicitor in a letter to the Commission dated 3 November 2006 as to the failure to serve the appeal within the time provided in the initial direction. The Second Respondent had an opportunity to file its ‘Notice of Opposition’ and has not been prejudiced by the delay. Whilst the Second Respondent does not consent to late service of the appeal, the appeal itself was filed in time, and the delay in the service (approximately 11 days) has been adequately explained by the Appellant.
In these circumstances, leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing”.
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Directions numbers 1 and 6, all the documents that are before me, and the submissions by both parties on appeal, 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.
THE ISSUES ON APPEAL
There is essentially only one issue on appeal, and that is the Arbitrator’s method of apportionment of the award. The Appellant states that “no complaint is made in relation to any other finding of the Arbitrator …”. As a corollary to this, the Appellant also submits that, since the Arbitrator “… failed to specify the period of employment used in her assessment of apportionment …” this amounts to a failure to give adequate reasons since “… the parties are unaware on what basis the determination of apportionment has been made.”
In her ‘Statement of Reasons’, the Arbitrator made the following observations:
“(1)It is not in issue that as a result of a fall in 1997 [sic], while in the employ of the first respondent, Mr Roberts injured his back. Nor is it disputed that he is now partially unfit for work. The key issue between the parties is whether the applicant received an injury when he worked for the second respondent and, if so, to what extent that employment contributed to any physical incapacity.
(13) The first respondent accepts liability for weekly compensation but seeks apportionment or contribution from the second respondent. The second respondent disputes liability. The applicant takes no position on this issue.
(14) The resolution of this issue turns on the following questions: first, did the applicant receive an ‘injury’ while in the employ of the second respondent; if so, was that employment a substantial contributing factor to the injury; and if so, does the applicant’s incapacity result from that injury?”
The Appellant takes issue with the Arbitrator’s apportionment of 85% liability to it which was based on a “length of time formula” in accordance with the provisions of section 22A(1)(a) of the 1987 Act.
THE RELEVANT LAW
Section 22 of the 1987 Act relevantly provides as follows:
“22 (1) If:
(a) the death or incapacity of a worker; or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3; or
(c) a liability under Division 3 of Part 3 to a worker,
results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
1(A) death, incapacity, loss or liability that results partly from one injury and party from one or more other injuries is taken to have resulted from more than one injury.”
Section 22A was inserted into the 1987 Act by the Workers Compensation Legislation Amendment Act 1995. The purpose of section 22A, as disclosed by the explanatory notes to that Act, was “as a means of guiding the parties to agreement and minimising litigation.” Section 22A provides as follows:
“22A(1) The apportionment of liability under section 22 is:
(a) in the case of the apportionment of liability between employers – to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case
…
(3)Liability may be apportioned under section 22 even if the liability has been discharged.
(4)When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.
(5)The person ordered under sub-section (4) to pay compensation to the worker is to be:
(a) in the case of apportionment between employers – the employer who most recently employed the worker, or such other employers as the Commission considers reasonable in the special circumstances of the case
…
(9)The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.”
The latter sub-sections of section 22A are of some relevance since the Second Respondent submits they ought not be required to pay the weekly benefits compensation in accordance with section 22A(5) as ordered by the Arbitrator. I will deal with this aspect of the Second Respondent’s submissions in more detail below.
THE DECISION UNDER REVIEW
In her ‘Statement of Reasons’ the Arbitrator considered the parties’ submissions (detailed in the transcript) and the medical and lay evidence with particular regard to the issues she had identified as being pertinent, namely, whether or not the First Respondent did in fact suffer an ‘injury’ within the meaning of section 4 of the 1987 Act whilst in the employ of the Second Respondent and if so, did any incapacity result from that injury. The Arbitrator then gave her “findings and conclusions” as follows:
“19. There is limited evidence about the nature of the applicant’s employment with the second respondent. It is known that he was employed for about three months …
20. The applicant’s claim that he did no lifting or heavy work during that period conflicts with the statement given by the Respondent’s manager … the
history taken by Dr John Roth in March 2004 recorded that the Applicant had reported that while at Bunnings he had been lifting boxes of up to 10 kilograms.
21. All experts agree that the fall was largely responsible for the damage that meant surgery was needed in 2003. They are divided however on whether the employment with the second respondent contributed to that damage. Dr Peter Conrad … concluded that the fall was the sole cause of the back problems. Dr Harrison shared that view but, when pressed, conceded that the applicant’s ‘post-2002 employment’ might have been a ‘modest factor’ in the range of about five percent (see report dated 8 March 2004).
22. The Applicant’s treating orthopaedic surgeon, Dr Bentivoglio, considered that the fall was largely the culprit. He thought, however, that that damage had been ‘further aggravated’ through the applicant’s employment with the second respondent …
23. Dr Kuo examined the applicant at the request of the first respondent and concluded that the applicant’s activities in the years following the fall had contributed to the degeneration of his lumbar spine. He thought that the fall, the employment with the second respondent and non-work related activities probably contributed equally.
24. While the second respondent and, indeed, the applicant have been at pains to downplay the physical nature of the work with the second respondent, it is apparent that it involved some work of a physical nature … the treating surgeon, the only expert to have had the advantage of viewing the damaged spine first hand, believed that driving a forklift would have been enough to cause further damage. He is not alone on this point. All experts bar Dr Conrad consider that that employment played some role.
25. It seems to me more probable than not, that there was a causal link between the applicant’s employment with the second respondent and the further ‘injury’ to his back …
27. It is not possible to determine with any precision when the applicant received his ‘further injury’ or ‘aggravation etc’. There is no report of any incident at work. The stabbing pain reported in June 2002, which triggered further treatment and investigation, occurred outside work hours. All that can comfortably be said is that, after a brief period of employment, the applicant experienced significant symptoms in his back which previously had been largely asymptomatic.
28. All experts agree that by April 2002 the applicant had a badly damaged spine. While not determinative, it is relevant, in my view, that the onset of significant symptoms occurred after about three months employment with the second respondent. Doctors Bentivoglio and Kuo believe that the nature of his work at Bunnings was capable of causing further damage to the applicant’s spine. Whilst circumspect, Dr Harrison also thought it had played some role.
29. The weight of medical evidence indicates that, given the condition of the applicant’s back, it was only a matter of time before it would become symptomatic. It seems more probable than not that it was the employment with the second respondent that tipped the scales …
30. For these reasons, I am satisfied on balance that the applicant’s employment with the second respondent was a significant contributing factor to the injury.”
The Arbitrator then proceeded to deal with the issue of incapacity and the entitlement to weekly benefits. It is noted again that no issue is taken by the Appellant as to the Arbitrator’s determination of this issue.
At paragraphs 48 – 54 inclusive, the Arbitrator considered the issue of apportionment stating as follows:
“48. The final issue to be determined is whether liability ought be apportioned between the respondents and, if so, on what basis.
49. The second respondent contends that the first respondent has admitted
liability as evidenced by its decision to commence weekly payments in December 2002. As a consequence, it contends, the first respondent is entirely liable for the applicant’s claim and no issue of apportionment arises … I do not accept that argument. Section 22A(3) makes clear that liability may be apportioned under s.22 even if the liability has been discharged.
50.Sections 16 and 22 of the 1987 Act deal with apportionment of the liability for compensation. The former concerns injury which ‘consists in the aggravation etc of a disease’. The latter uses the language of ‘injury’. While the injury received with the second respondent could be said to be caught by paragraphs (a) and (b)(ii) of the definition of ‘injury’, as a consequence of the Court of Appeal decision in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267, it is now settled that where incapacity results from more than one injury the provisions of s.22 are invoked even though one of the relevant injuries could be characterised as one of ‘aggravation’ of a disease.
51.Section 22(1) provides that if the incapacity or loss suffered by a worker ‘results from more than one injury’ liability to pay compensation is to be apportioned by the Commission …
52 [The Arbitrator set out the provisions of section 22A(i)(a)]
53.Each respondent argues that the liability of the other ought to be 80%. The first respondent argues that it is highly relevant that no issue of incapacity arose until after the employment with the second respondent.
54.If the length of time formula is applied, liability would be apportioned one eighth to the second respondent and seven eights to the first respondent, or about 15:85. While, as the first respondent points out, no incapacity arose until after the employment with the second respondent, the weight of medical evidence is that the fall was the major cause of the applicant’s back problems. That it took some time for significant symptoms to arise does not abrogate the contribution the fall made to the applicant’s subsequent incapacity. The medical evidence broadly supports the apportionment of liability if the time formula were to apply. For these reasons, I apportion 15% liability to the second respondent and eighty five percent (85%) to the first.”
The issues for me to consider on appeal in relation to whether the Arbitrator’s method of apportionment was correct are essentially twofold. Firstly, whether the evidence, particularly medical, supported the Arbitrator’s finding that “… the fall was the major cause of the applicant’s back problems ...” and secondly, whether the “… length of time formula …” as applied by the Arbitrator was appropriate in the circumstances of this particular case.
THE REVIEW
As I said recently in Irigaray v Joe Papandrea Wholesale Quality Meats Pty Limited [2007] NSWWCCPD 81:
“My role as Presidential Member on review of an arbitrator’s determination has been the subject of a number of decisions in the Commission. Most recently, as Deputy President Roche said in Berry v Department of Education and Training [2007] NSWWCCPD 75:
‘28. The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616. The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
29. Before an Arbitrator’s decision will be revoked on review it must by
demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 24; Absolon v NSW TAFE [1999] NSWCA 311).’
48. These principles must be borne in mind in considering the issues raised on appeal.”
THE EVIDENCE, SUBMISSIONS AND FINDINGS
The medical evidence
The First Respondent consulted Dr John Wong at the Leumeah Family Medical Surgery on 10 August 1999. In a report dated 29 November 2003, Dr Wong stated as follows:
“I saw Mr Roberts on the 10/08/99. He stated he fell through a roof. He fell 6 metres. He fractured his left calcaneus and was admitted to Liverpool Hospital …
11/08/99 – Mr Roberts returned for review. I enclosed a photocopy of an x-ray report at the end of this report.
I have no record of any back incapacity on either of the above visits.
The next time I saw Mr Roberts was on 24/03/03. He stated that his back pain occurred when he returned to work. Mr Roberts did not seek any medical attention initially because he thought his back pain was due to his roof tiling occupation.
Mr Roberts then stated in April/May 2002 his back pain became worse and he was unable to get out of bed … I do not know who his employer was at that time.”
Dr Wong concluded “Mr Roberts’ back injury most probably is due to the fall followed by repetitive bending and lifting”.
It is not clear from Wong’s report when he states that the First Respondent’s back pain occurred “… when he returned to work” as to which employer he refers.
Dr Bentivoglio provided a number of reports. In this initial report dated 30 January 2003 addressed to a Dr Baker, Dr Bentivoglio said:
“Three years ago, he fell through a roof a distance of 6 metres and sustained a fracture of his left heel together with injuring his back. He works as a roof tiler. In April of last year his back symptoms worsened and he also had pain radiating down his left lower limb to the ankle region.”
In a report dated 3 March 2003 apparently addressed to the “GIO” Dr Bentivoglio said as follows:
“… I obtained a history that he had fallen through a roof a distance of 6 metres sustaining an injury to his heel and also injuring his back. He continued to experience symptoms present in his back region. His symptoms worsened in April of last year …”
In a report dated 6 February 2004 addressed to the First Respondent’s solicitors, Dr Bentivoglio said:
“… I obtained the history he had fallen through a roof a distance of six metres three years earlier and had sustained a fracture of his left heel together with injuring his back. He advised me he worked as a roof tiler. His back symptoms initially did improve. In April 2002 his back symptoms worsened and he also had pain radiating down his left lower limb …
I felt this gentleman had sustained distal damage as a result of the original injury to his back in August 1999 and had further aggravated this discal damage as a result of his employment in April 2002.”
In a subsequent report dated 22 July 2005 also addressed to the First Respondent’s solicitors, Dr Bentivoglio concluded as follows:
“This gentleman’s original injury to the L4/5 level of his lumbar spine region would have been as a result of the initial injury to his person when he fell approximately six metres, fracturing his left heel and injuring his back in June 1999. The normal pathological response to such an injury would be for there to be some degree of disc desiccation occurring at the L4/5 level of his lumbar spine region. Sitting for prolonged periods of time in a forklift would have aggravated the discal damage at the L4/5 level.
This gentleman’s injury would have been a substantial contributing factor to his current complaint and his condition is consistent with this being the case, The nature and conditions of his employment subsequently would have also aggravated the damage at the L4/5 level of his lumbar spine. I would state that the majority of this gentleman’s current back disability would have arisen as a result of the original injury to his back at work.”
Dr David Rail, Neurologist, reported on 19 February 2003 this history:
“Mr Roberts had a fall from a roof about three years ago … he only began getting back pain nine months ago. This has spread to the left leg …
The First Respondent was referred to Dr John Harrison, Orthopaedic Surgeon, at the request of his solicitors. In a report dated 28 August 2003, Dr Harrison made the following observations:
“He had been conscious of some back pain and some numbness at or around his left buttock but the leg pain which had worried him so much when he hit the ground, leading with his left foot settled down considerably and that is why he coped back at work.
As a sequel to a fall, this man apparently sustained a closed fracture of his left oscalcis and may have injured his back but his complaints were those of left leg pain and he had three days treatment in Liverpool Hospital and recovered remarkably from a fracture of that form to his left hindfoot. Even though he was able to get back into work boots and resume the skilled work of a roof tiler, within two months of that injury by his account, he went on as I have outlined to get increasing back pain problems …
[He] was investigated and had surgery done with some unexpected findings that implied he had a crush fracture or a burst type fracture of the posterior part of his L4 vertebral body …
… The frank injuries as described are a result of the specific incident on 8 June 1999, although the MRI and other studies certainly confirmed that he had some pre-existing, congenital narrowing of the spinal canal at the L3/4 level which is not associated with these symptoms …”
In a supplementary report dated 8 March 2004, Dr Harrison concluded as follows:
“He therefore has an 11% Whole Person Impairment attributable to the accident in which he was involved on 8 June 1999 and to the general nature and conditions of his work.
This is probably not relevant as the frank injury to his back and left foot occurred on 8 June 1999 but the general nature and conditions of his employment since then until 1 January 2002 may impact and warrant apportionment over his back impairment.
Having said that, he had surgery in 2002 and as such that interval and the effects of it on impairment of his back post 1 January 2002 would need to be considered but would have been only a modest factor (less than 5%) of the net impairment of his back as calculated.”
The First Respondent also consulted Dr Peter Conrad at the request of his solicitors on 13 May 2004. In a report dated 18 May 2004, Dr Conrad obtained this history:
“Apart from his left heel, he also had pain in the left buttock. He was off work for some two months and then returned to … his normal work. He did this for a few months … and Mr Roberts took over his brother’s roof tiling business … he did this for a few weeks and then stopped work as a roof tiler because, apart from his left heel, his back had become painful and he couldn’t manage the job. He was unemployed for a while … in 2001, he worked with Bunnings as a forklift driver, but his back deteriorated.”
Dr Conrad concluded that the First Respondent’s injuries and disabilities were as a consequence of the incident with the Appellant on 8 June 1999. In a report dated 7 April 2005, Dr Conrad concluded that the First Respondent had suffered a 35% impairment of his back and a 30% permanent loss of efficient use of the left leg at or above the knee [including the left ankle] and stated: “… These impairments and losses relate directly to the accident of 8 June 1999…”
Dr Cher-Sang Kuo examined the First Respondent at the request of the Appellant on 2 December 2003. Dr Kuo concluded that the “injuries” being fracture of the left heel and L4/5 disc protrusion with left L5 nerve root compression were:
“… medically consistent with … the fall in June 1999.
The fall could have injured the lumbar spine but it is likely that the nature and conditions of his duties and his activities over the subsequent years have contributed to the degeneration.
It is difficult to apportion liability of his back injury. I would apportion a third of the injury to his work and the event with [Appellant] and one third when he was employed by [Second Respondent] and the balance non-work related.”
Dr John Roth, General Surgeon, examined the First Respondent at the request of the Second Respondent on 31 March 2004. In his report dated 1 April 2004, Dr Roth obtained this history:
“He developed pain in his left heel but he was not aware of any other injuries at that time … He walked with the aid of crutches for a couple of weeks … He was off work for approximately two months following this injury and he then resumed working as a roof tiler. Although he sometimes developed stiffness in his lower back this was not significantly different to what he had experienced previously while working as a roof tiler and he attributed this to the general nature of the work which he was performing.”
Dr Roth concluded:
“There is no history of a specific injury in July 2002 and the MRI Scan findings are I believe related to the accident in which he was involved on 8 June 1999 when he fell down from a height of approximately 20 feet. It is likely that the general nature of the work which he was performing in July 2002 precipitated symptoms from and aggravated the pre-existing L4/5 disc protrusion in his lumbar spine which was I believe caused by the fall on 8 June 1999.
His condition is very significantly related to the accident in which he was involved on 8 June 1999.
The development of symptoms in the lower back and left thigh … in July 2002 is related to aggravation of a pre-existing L4/5 disc protrusion which was I believe caused by the accident on 8 June 1999. The effects of this aggravation are permanent.”
In essence, Dr Roth was of the view that the work with the Second Respondent was responsible for “precipitating symptoms” from a previously asymptomatic L4/5 disc protrusion which he considered was caused by the fall on 8 June 1999.
In his statement dated 11 August 2004, the First Respondent said as follows:
“When I started to weight bare [sic] on my left leg I noticed pain in my left heel and some pain in my left buttock.
… I was off work from about 8 June 1999 until August 1999. During this period I noticed that my back was stiff and a little sore.
I never did any heavy lifting or heavy work at Bunnings and I do not recall specifically hurting my back while I worked there. However, I was getting some increased pain in my back and left buttock with some odd numbness over my left buttock.”
What is clear from this evidence is that it is consistent with the Arbitrator’s conclusion that: “All experts agree that the fall was largely responsible for the damage …”. This evidence also in my view supported the Arbitrator’s conclusion that the duties undertaken by the First Respondent in the employ of the Second Respondent contributed to his condition.
The evidence also supports the Arbitrator’s conclusions that the First Respondent’s statement to the effect that he did not do any lifting or heavy work with the Second Respondent was inconsistent with the statement made by Mr David Shurley, Manager of the Second Respondent. Mr Shurley, in a statement dated 2 April 2004 said as follows:
“He was the holder of a forklift operator’s licence and was on occasions required to drive one of four machines used within the store. If necessary, he was also expected to lift and carry certain items, however either the forklifts or pallet trucks were constantly available to assist in that regard if necessary and other staff members were also on hand to assist if required.”
In summary then, the Arbitrator’s conclusions that the incident with the Appellant on 8 June 1999 was principally responsible for the injury to the First Respondent’s back was consistent with the totality of the evidence before her. Similarly, that evidence was also consistent with the Arbitrator’s conclusion that employment with the Second Respondent “contributed” to the First Respondent’s back injury.
Accordingly, I can see no error in the Arbitrator’s findings and conclusions on this issue.
The Apportionment Issue
The thrust of the Appellant’s submissions is that the Arbitrator’s finding that the First Respondent’s incapacity resulted principally from the injury on 8 June 1999 ignored the principles to be applied in considering the application of section 22 of the 1987 Act as set out in a number of authorities to which I will refer shortly.
In short, the Arbitrator’s obligation was to consider whether the incapacity resulted from more than one injury and, having found that that was indeed the case, look at all the facts and circumstances and apply “broad common sense” in determining the impact of those injuries on the First Respondent’s capacity for employment.
As the Arbitrator noted, “it is not in issue that as a result of a fall … while in the employ of the First Respondent, Mr Roberts injured his back.” What is in issue, the Appellant submits, is the Arbitrator’s “… use of the periods of respective employment with each Respondent …” as the foundation of her determination as to apportionment. The Appellant submits that this basis for determination “… is inappropriate and amounted to an error of law.”
As the Appellant rightly points out:
“… The Arbitrator was required to have considered whether the incapacity of the worker giving rise to the entitlement to weekly compensation resulted partly from injury occurring in the course of the worker’s employment by First Respondent, as well as some injuries occurring in the course of his employment with the Second Respondent.”
The Appellant submits that “… applying a common sense evaluation of the causal chain the injury as found by the Arbitrator occurring with the Second Respondent is more significant than what occurred at the time of the Applicant’s fall in 1999 with the First Respondent.”
In essence, the Appellant submits that the Arbitrator was not bound to apportion liability between the two employers solely on the basis of the “relative length of the worker’s employment with each employer”, but should have considered the issue “… on such other basis as the Commission considers just and equitable in the special circumstances of the case.” In the present case, the Appellant submits that, whilst undoubtedly the First Respondent suffered an injury to his back in June 1999, it was not ‘incapacitating’. It was as a result of employment with the Second Respondent that the First Respondent was required to cease work, undergo surgery and as a consequence suffer significant incapacity. The Appellant points to such factors as the absence of any treatment for any back complaints following his return to work after the June 1999 fall and his employment with the Second Respondent. The Appellant also points out that the First Respondent resumed fulltime work with it until around November 2000 when he ceased to assist his brother in his brother’s tiling business. Thus, the Appellant argues, the “injury” with the Second Respondent was of far more significance in a causative sense in producing the First Respondent’s incapacity.
The Appellant has quoted at length from the decision of the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Limited (1996) 12 NSWCCR 716 quoting from Clarke JA at page 726 as follows:
“The introduction into subsection.(1) of the wider meaning of the expression ‘results from more than one injury’ means, in the present context that the trial Court is concerned to have regard to more than one test. The first is the old test and the second is the new test in which the Court’s attention is directed to the question of whether the incapacity for instance results, partly from one and partly from one or more other injuries. Not only is there an additional test but it is one which is not found in any other part of the Act.
These tests, in terms, require the Court to determine, whenever apportionment is sought, whether the incapacity results from more than one injury. In considering that question, the Court is first obliged to enquire whether the incapacity, in strictness, resulted from more than one injury. However, the answer to that question will not necessarily provide a resolution of the claim for the Court may be required to go further and enquire whether the incapacity resulted partly from one injury and partly from another injury or other injuries. Both tests give rise to questions of fact which, like all questions of causation, are almost universally resolved by applying ordinary common sense.
What is involved in the wider test introduced by section 22(1A) is an enquiry whether the incapacity was so connected with a number of injuries that, as a matter or ordinary common sense and experience, it should be regarded as having resulted partly from all or any of them …
What the Court will be obliged to do is to determine a question of fact which directs attention to the existence of a the number of injuries in order to determine whether a worker’s incapacity could properly be held to have resulted partly from one or more of them. If the question is answered in the affirmative the apportionment exercise will need to be carried out.”
The Appellant also quotes from Clarke JA at page 730 who referred to the decision of Kirby P in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (‘Bates’) at 463 as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts … the importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted … what is required is common sense evaluation of the causal chain. As the earlier cases demonstrate, the mere passage of time between the work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury … is a question of fact to be determined on the basis of the evidence …”
In the present case, as I have said, there was ample evidence for the Arbitrator to conclude that the First Respondent’s incapacity “resulted from” partly one injury and partly from another. The Arbitrator concluded that both the injury with the Appellant and the injury with the Second Respondent caused or materially contributed to the First Respondent’s incapacity.
The principal question is whether the Arbitrator’s ultimate decision as to apportionment reflected a “common sense evaluation of the causal chain” leading to incapacity.
The Appellant asserts that common sense would dictate that the First Respondent’s incapacity, in strictness, resulted principally from his injury with the Second Respondent since at that stage he effectively became totally incapacitated for employment.
Whilst I accept the validity of the Appellant’s submission, the facts and circumstances of the present case, particularly the medical evidence, demonstrate that the First Respondent suffered a significant injury to his back in the fall in June 1999. Indeed, as Kirby P said in Bates, “… The mere passage of time between a work incident and subsequent incapacity … is not determinative of the entitlement to compensation.”
Whilst the First Respondent’s incapacity reflected a close temporal connection with his employment with the Second Respondent, it is the causal link or chain which is paramount in determining the question: from what did his incapacity result? . The weight of evidence suggests that his incapacity resulted principally from his injury with the Appellant.
As Handley JA said in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’), again quoting from Kirby P in Bates’ case at 462:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
In other words, as Dr Roth pointed out, the fact that some years had intervened between the time of the fall in June 1999 and the precipitation of significant symptoms in around April/May of 2002 did not in effect interrupt the causal chain of events.
As I have said, the totality of the medical evidence in particular supported the Arbitrator’s conclusion that “… the fall was the major cause of the Applicant’s back problems.” It is clear from the Arbitrator’s ‘Statement of Reasons’ particularly paragraph 54, that she considered factors raised by the Appellant, in particular, that “… no incapacity arose until after the employment with the Second Respondent …” but as she rightly pointed out, “… that it took some time for significant symptoms to arise does not abrogate the contribution the fall made to the Applicant’s subsequent incapacity.”
As I said earlier, my task on review is not to further debate issues raised before the Arbitrator by way of a rehearing, but is to consider whether the decision of the Arbitrator is affected by some legal, factual or discretionary error.
I can see nothing in the Arbitrator’s determination that suggests that she failed, as the Appellant submits, “… to look at the circumstances, the findings and apply broad common sense.” There was ample evidence to support the proposition that the “causal chain” leading to the First Respondent’s incapacity was substantially due to his injury in June 1999. Moreover, as the Arbitrator pointed out, “the medical evidence broadly supports the apportionment of liability if the time formula were to apply.”
I accept the Appellant’s submission that the Arbitrator failed to specify the period of employment used in her assessment of apportionment however, this apparent error is not such that I should interfere with the Arbitrator’s award. It is not disputed that the First Respondent was employed by the Second Respondent for a period of approximately three months, commencing part time in April 2002 and fulltime in May 2002. The First Respondent appears to have last worked on 1 July 2002. In his statement, the First Respondent claimed that he commenced employment with the Appellant “in about 1998” again initially casually but later on a fulltime basis although, as the First Respondent stated, “there were periods where I was out of work because Mr Heckle had no work for me”. His injury occurred on 8 June 1999 and he remained at work until “about November 2000”. This evidence was not the subject of any particular challenge at the hearing before the Arbitrator although there was some discussion as to the actual hours worked with the Second Respondent.
It is clear that the Arbitrator’s determination is a reasonably accurate reflection of the “relative length of the worker’s employment with each employer”.
This evidence was well known to the Appellant, and it is not difficult to determine the basis upon which the Arbitrator came to her decision.
A failure to give adequate reasons amounts to an error of law. Indeed, an Arbitrator has a statutory duty to provide adequate reasons for a decision (see section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003( Rule 15.6 of the Workers Compensation Commission Rules 2006)). In essence, the reasons given must be capable of conveying adequately to the parties the basis upon which the Arbitrator came to her decision. As Deputy Fleming said in Wyong Shire Council v Paterson [2004] NSW WCC PD 45, “The Arbitrator’s decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error (Minister for Immigration and Multicultural Affairs v Wu Shan Lang (1996) 185 CLR 259)”.
Reading the decision as a whole, it seems to me that the Arbitrator has adequately explained the basis upon which the determination as to apportionment was made, particularly in circumstances where both employers were well acquainted with the nature of the issue to be determined.
CONCLUSION
I am not persuaded that the Appellant has demonstrated any basis upon which the decision of the Arbitrator should be revoked. The Arbitrator’s reasons were both thorough and detailed, and adequately conveyed to the parties the basis of her determination.
Whilst I accept the Appellant’s submission that there was certainly some evidence, of a temporal nature, to suggest that the First Respondent’s incapacity principally “resulted from” his employment with the Second Respondent, the medical evidence, particularly that of the treating specialist, Dr Bentivoglio, was more compelling.
The Arbitrator has properly applied the principles set out in the authorities to which I have referred, and in my view, has properly considered the facts and circumstances of this particular case and applied “ordinary common sense” in dealing both with the issue of causation and of apportionment.
It was open to the Arbitrator to consider the “relative length” of the First Respondent’s employment with each employer in accordance with the provisions of section 22A(1)(a) of the 1987 Act but in any event, were she to have applied some “other basis” as she considered “just and equitable in special circumstances of the case”, in my view she has done so noting that “the medical evidence broadly supports the apportionment of liability if the time formula were to apply.”
One final matter to consider is the Second Respondent’s submission that, given the nature of the apportionment, the Arbitrator erred in ordering the Second Respondent to pay the weekly benefits compensation to the First Respondent pursuant to Section 22A(5) of the 1987 Act. The Second Respondent’s submission is made on the basis that 85% of the award is payable by the Appellant and further, that the Appellant:
“Managed a claim file for the First Respondent in relation to its payments of weekly benefits compensation and section 60 expenses (including the surgery) until 8 February 2004 and also presumably managed his rehabilitation during that time. The First Respondent’s failure to lodge a claim against the Second Respondent resulted in the only documents now available to the company’s insurer being those which were incidental to the Commission proceedings. It is submitted that for this reason the Appellant is in a better position to administer the award.”
Whilst this is a compelling argument, the Arbitrator was entitled to order payment in accordance with section 22A(5) of the 1987 Act. This is not a proper matter for me to consider on appeal since no such issue was raised by the Appellant. No doubt this matter can be resolved to the satisfaction of both the Appellant and the Second Respondent by way of mutual agreement.
DECISION
The decision of the Arbitrator dated 15 September 2006 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
5 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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