Payne v Mantra Hospitality Admin Pty Ltd
[2017] NSWWCCPD 17
•3 May 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Payne v Mantra Hospitality Admin Pty Ltd [2017] NSWWCCPD17 | |
| APPELLANT: | Renee Hayley Payne | |
| RESPONDENT: | Mantra Hospitality Admin Pty Ltd | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-1680/16 | |
| ARBITRATOR: | Mr G Edwards | |
| DATE OF ARBITRATOR’S DECISION: | 5 September 2016 | |
| DATE OF APPEAL DECISION: | 3 May 2017 | |
| SUBJECT MATTER OF DECISION: | Injury arising out of or in the course of employment ; whether employment was a substantial contributing factor; ss 4 and 9A of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | Acting Deputy President Larry King SC | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Attwood Marshall Lawyers |
| Respondent: | Barker Henley (formerly Kaden Boriss) | |
| ORDERS MADE ON APPEAL: | 1. Appeal allowed. 2. The decision of the Arbitrator dated 5 September 2016 is set aside. 3. The following orders are made in lieu thereof: (a) The appellant suffered injury on 14 February 2014 in the course of her employment with the respondent. (b) The question whether the appellant’s employment substantially contributed to her injury within the meaning of | |
INTRODUCTION
Renee Payne, the appellant worker, appeals against a decision of an Arbitrator on two issues.
Those issues were, first, whether she suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) and, secondly, if so, whether her employment was a substantial contributing factor to the injury within the meaning of s 9A of the 1987 Act.
The appellant’s claim was for weekly compensation from 11 June 2014 and continuing together with medical hospital and rehabilitation expenses. The Application to Resolve a Dispute filed on 4 April 2016 which advanced these claims gave notice of a further claim in respect of lump sum compensation but in any event there was no occasion for any steps to be taken in respect of that.
BACKGROUND
The evidence adduced before the Arbitrator by the appellant, appended to the Application to Resolve a Dispute, comprised 225 pages of documents. The evidence adduced by the respondent appended to the Reply to Application to Resolve a Dispute, comprised 133 pages of documents. The applicant adduced a further 35 pages of documents by way of two Applications to Admit Late Documents, and the Respondent, also by Application to Admit Late Documents, adduced a supplementary report of Dr Anthony Smith, an orthopaedic surgeon qualified in answer to the claim, which occupied three pages. There was a degree of duplication in the evidence adduced by each party, but the volume of evidence was significant.
The Arbitrator’s statement of reasons exhaustively reviewed the evidence, extending to 121 paragraphs and occupying 25 pages.
I mention these matters because it would be, at least in my view, to lengthen these reasons intolerably to engage in yet another detailed statement of the evidence and to restate the Arbitrator’s statement of reasons. Regrettably they will be long enough. In the circumstances, rather than devote separate parts of these reasons thereto, in addition to giving a statement of the background to the proceedings before the Arbitrator, I shall now, under this heading to these reasons, endeavour to shortly encapsulate what I think are the important features of the evidence and of the Arbitrator’s statement of reasons. I shall also make some brief comments upon them. At the same time, the Arbitrator’s reasons should be read in conjunction with these reasons.
The appellant was employed by the respondent as a housekeeping supervisor or trainee supervisor, having commenced that employment on 4 February 2014. She worked at the respondent’s premises known as the Mantra at Salt, which were situated at Kingscliff. Her duties involved both checking the hotel rooms after they had been vacated and cleaned by the housekeeping staff and thereafter on each working day attending to administrative work and paperwork in the respondent’s housekeeping office, whereafter she would go back to duties in the premises generally supervising the work of the housekeepers.
Her alleged injury occurred at about 1.05 pm on 14 February 2014. Before dealing with the circumstances of the injury, however, it should be noted that the appellant’s evidence, which emerged in the course of three evidentiary statements (in particular an evidentiary statement dated 3 March 2016) was to the effect that, essentially because of the number of rooms to be attended to at the respondent’s premises and lack of proper assistance from a workmate, she was very busy and spent a lot of time on her feet walking, carrying out inspections which involved looking under furniture and beds and into cupboards etc, and if need be doing cleaning work. These physical tasks were supplemented by the need to carry out the administrative and clerical work referred to above.
The appellant’s case was that two days before her injury on 14 February 2014 she bumped her right knee on a bedside table drawer in one of the rooms at the respondent’s premises, but the incident actually relied upon as the relevant injury was that, as abovementioned on 14 February 2014 at about 1.05 pm, she was walking towards the housekeeping office in order to go about administrative/clerical work and whilst, as alleged in the Application to Resolve a Dispute, she was “… only stepping up a 2 inch step in the basement she … experienced severe pain in her right knee”. The Application went on to allege that as she “… looked downwards she saw her right kneecap was in her shin. [She] had to kick her right leg out straight to put the knee back in.” And that she “… stumbled, although she had not fallen over.”
The appellant’s first evidentiary statement dated 23 April 2014 said in para [13] that the “one small step from the basement level to the housekeeping door” was “approximately three and a half inches high”. In para [19] she said that she attributed her “… misjudgement of the step because I was rushing because of my unacceptable workload.”
It is noteworthy that in that statement the appellant listed in para [46] the names of a number of medical and paramedical people from whom she had had treatment in the ten years before she made the statement, and mentioned a low back injury which she sustained whilst trampolining at the age of 8. In para [49] she went on to say that at the age of 15 she had an arthroscopy performed on her right knee to remove “floating cartilage” by Dr Grimsdell at a private hospital in Dubbo. In that paragraph she said in the concluding two sentences:
“… Since the procedure I have had no problems with that knee until the occurrence of this injury. I had the arthroscopy to my right knee because the floating cartilage prevented me from straightening my right leg”.
In her second evidentiary statement dated 16 July 2015 the appellant referred to her childhood back injury in para [5] and her right knee injury at the age of 15 in para [6], as well as to the surgery by Dr Grimsdell in para [7].
The concluding sentence of para [7] of that statement is:
“… Post-operatively I received physiotherapy treatment for approximately a month, and thereafter I had had no further abnormal symptoms or any residual disability.”
Para [12] of the appellant’s statement of 16 July 2015 said that the step she was negotiating at the time of her injury on 14 February 2014 was about three and a half inches high.
Her third evidentiary statement, referred to above, was dated 3 March 2016. Paras [20]-[22] of that statement are as follows:
“20 Two days later on the 14th of February 2014 I stepped up a 2 inch step in the basement. At the time I looked down to what I perceived as a dislocated kneecap. I flicked my leg out at which time it appeared to relocate.
21 I walked through the door straight to Susan Grumley sitting at the computer in the housekeeping office to tell her exactly what had just happened.
22 In the 10 full days I worked I feel every day I walked at least 10 km per day in between everything else I was expected to do. I had bought a new pair of Nike air shoes for the job. I wore the soles out of those shoes in that short time.”
In contrast to the appellant’s evidentiary statements which said that the surgery to her right knee at the age of 15 in Dubbo was successful and that she had had no trouble with her right knee between then and 14 February 2014, both in her case and in the respondent’s case the notes of the Emergency Department of the Tweed District Hospital dated 9 November 1998 were adduced in evidence. There beside the letters “PC” – which I take to signify “presenting complaint” – and “HPC” - which I take to signify “history of presenting complaint” the following appears:
“PC 20 yr old [female] with painful R knee
HPC History 4-5 arthroscopies both knees
- recurrent locking of both knees
- last time locked – 12/12 ago was told she
had a piece of bone jammed in knee
last night knee suddenly locked
unable to extend knee this am
can not bear
both knees give way intermittently”
Also adduced in evidence by both parties were the 2014 records of the Tweed Hospital, and the anaesthetic record (which is document page 112 of 225 in the appellant’s case and document page 104 in the respondent’s case) records under the headings “RELEVANT MEDICAL PROBLEMS” and “PAST ANAESTHESIA & PROBLEMS” the following:
“RELEVANT MEDICAL PROBLEMS
● OA knees
PAST ANASTHESIA & PROBLEMS
Several Aths for Arthroscopies
no issues”
I take the notation “●OA knees” to be a reference to osteoarthritis in the appellant’s knees.
Following her injury the appellant saw an orthopaedic surgeon, Dr Tong, at the Tweed Hospital, initially on 4 March 2014, and underwent surgery at his hands on 20 March 2014. The operation report was in evidence, but there was no discrete report from Dr Tong in evidence. However para [41] of the appellant’s evidentiary statement of 23 April 2014 is as follows:
“41I discussed this matter with Dr Tong, and other doctors and I specifically asked if this injury would have occurred whether or not I had misjudged the step at work on 14/2/14. The doctors informed me that they were unable to offer an opinion in this regard, or if the incident on 14/2/14 was the total cause of the injury.”
The medical evidence relied upon by the appellant seemed to me upon my review of the papers to be the report of her general practitioner, Dr Buckland dated 22 January 2015 and two reports from a general surgeon qualified on her behalf on a medico-legal basis, Dr John McKee OAM dated 16 December 2014 and 8 March 2016. (I do not mean by this that there was no other medical material put into evidence by the applicant: that is not so. A number of medical certificates as well as the Tweed Hospital records including the operation record were adduced but on the central issues of whether she suffered an injury for the purposes of
s 4 of the 1987 Act and whether her employment made a substantial contribution to any such injury for the purposes of s 9A of that Act the reports of Drs Buckland and McKee are, I think, the relevant evidence.)Dr Buckland’s report contains the following passages:
“On 14-2-2014, after walking a significant distance at her workplace, she stepped up a small stair. She looked down and saw what she described as her kneecap dislocated inferiorly. She felt she was able to manipulate it back into place and finish her work that day. She worked 4 hours on 16-2-2014, then 8 hour days from 17 to 21-2-2014 with the support of a knee brace. With increasing pain and swelling in the knee, she first presented to me on Monday 20-2-2014.
…
This is an unusual injury but it is consistent with significant weight bearing activity such as she was required to do in her employment prior to taking the step which produced the injury. [The appellant] had been normally active without any knee problem before this time.”
Dr McKee’s report of 16 December 2014 recorded under the heading “PAST MEDICAL HISTORY” on page 2 that the appellant had had a right knee injury at the age of 15 and the surgery in Dubbo. The following sentence concludes the second paragraph under this heading of the report:
“… Post-operatively she had received physiotherapy treatments for about a month, and thereafter she had had no further abnormal symptoms or any residual disability, until the more recent accident on 14 February 2014.”
On page 3 of this report under the heading “HISTORY OF INJURY” the following appears, and is the whole of the second paragraph under this heading of the report:
“As she had been stepping from the basement level to a small alcove which had been the entry to the housekeeping office, via the stairwell doors, and when only walking down a 2 inch high step, she said she had experienced severe pain in her right knee and as she had looked downwards she said ‘my right kneecap was in my shin’. She said that this had caused her to stumble, but she had not fallen over, and she said ‘I had to kick my right leg out straight to put the knee back in’.”
On pages 6 and 7 of this report, under the heading “PHYSICAL EXAMINATION”,
Dr McKee’s examination of the appellant’s legs is recorded. The following appears (page 7):“Examination of the right knee joint revealed a vertical scar over the anterior aspect of the right patella measuring 6 cm in length. Its edges were heaped up, and it was quite tender. In addition, there were two well healed old arthroscopic scars both medially and laterally. These scars were non-tender and they were not unsightly. There were no scars associated with the left knee joint.”
On page 8 of the report, under the heading “DIAGNOSIS AND OPINION” there appear two relevant statements in my view. First, Dr McKee agrees with a view expressed by Dr Smith for the respondent that the appellant could not have fractured her patella at work with the respondent on 14 February 2014 because she would not thereafter have been able to walk.
(I will come to Dr Smith’s report generally later herein). Secondly against the background of that opinion that there could have been no patella fracture, the doctor said:“In my opinion the work related accident on 14 February 2014 had resulted in an osteochondral fracture resulting in displacement of a fragment and bulging below the patella, which had made [the appellant] think that her patella had actually been dislocated. With the quick extension of the joint the displaced fragment had become repositioned in the joint, at least allowing her reasonably normal joint function, although progressively thereafter the joint had become increasingly painful and swollen and certainly unstable.
…
The other possibility is that there may have been a momentary subluxation of the patella and that when the quadriceps muscle had snapped the patella back into place an osteochondral fracture had resulted, followed by displacement of the fragment.
…”
It is to be noted that although in the above extract from his report Dr McKee speaks of “… the work related accident on 14 February 2014 …”, he does not expressly explain in what way the accident was work related, although it is arguably fair to say by reference to his “HISTORY OF INJURY” he was intending to convey that the physical activity of negotiating the descent of a two inch step was the causal factor. At all events, consequent upon a direction from the Arbitrator, some elaboration of his view as to causation was sought by the appellant’s solicitors and the result was his further report of 8 March 2016. On page 2 of that report under the heading “HISTORY OF INJURY” Dr McKee restated the circumstances of the onset of the appellant’s knee pain on 14 February 2014, but instead of recording that the appellant was only walking down a two inch step, on this occasion the history records that she was “… only stepping up a two inch step …”. Then on pages 3 and 4 of this second report, Dr McKee under a series of headings “DIAGNOSIS AND OPINION”, “OSTEOCHONDRAL FRACTURE OF THE KNEE” and “EXPLANATION REGARDING [THE APPELLANT’S] RIGHT KNEE INJURY”, expressed the following views:
(a) The trauma to the appellant’s right knee on 12 February 2014, two days before, was most unlikely to have resulted in an osteochondral medial femoral condyle fracture resulting in subsequent displacement of the fragment.
(b) Dr Michael Tong in his operation report of 20 March 2014 noted a large separated fragment from the medial femoral condyle.
(c) By reference to a medical text book, Campbell’s Operative Orthopaedics Seventh Edition, osteochondral fractures of the knee occur primarily on the cartilaginous surfaces of the medial or lateral femoral condyle or the patella. They may be caused by direct forces applied against the femur or patella or by dislocation of the patella itself. Osteochondral fractures of the knee are often produced by dislocation of the patella, which shears off a fragment of the condyle in much the same way as osteochondral fractures of the patella are produced. The patella is momentarily subluxated over the lateral condyle with enough force to score the articular surface of both the patella and the femur. The medial border of the patella is then caught against the prominent edge of the femoral condyle. As the quadriceps muscle snaps the patella back into place, the edge of the femoral condyle shears an osteochondral fragment from the inferior and medial edge of the patella or the femoral condyle. Osteochondral fracture fragments most commonly originate from the medial aspect of the patella or from the lateral femoral condyle.
(d) In retrospect, it now appears most likely that when the appellant had been stepping up on her way to the housekeeping department she must have sustained a momentary subluxation of the patella which had shorn off a fragment of the medial femoral condyle. As the quadriceps muscle had snapped the patella back into place the edge of the femoral condyle had shorn off an osteochondral fragment from the medial femoral condyle resulting in the presence of a large fragment which had been confirmed by MRI imaging on 10 March 2014.
Turning now to the respondent’s case before the Arbitrator, I have already mentioned some duplication or overlap in the documentary evidence. I think the most important features in that regard are the Tweed Hospital Emergency Department notes of 9 November 1998 and the anaesthetic notes of March 2014, both of which are referred to above. Otherwise the reports of Dr Anthony Smith require comment.
In his report of 16 May 2014, Dr Smith recorded (at page 2) the appellant’s history of right knee trouble and surgery in Dubbo when she was in her teens. No other past history of knee trouble is recorded, but at the same time there is no note that it was expressly denied by the appellant. On page 4 Dr Smith left a question as to causation couched in the language of
s 9A of the 1987 Act unanswered, and obviously this was picked up by the respondent’s solicitors and he was asked to deal with it. A further report dated 4 June 2014 is in evidence. It appears to be otherwise identical with the report of 16 May 2014 but answers the causation question on page 6 as follows:“It is very unclear as I said exactly what happened to her. It is not possible to answer that question since I do not know the diagnosis.”
There then appears a supplementary report, which seems to be intended to be incorporated into the report of 6 June, in response to a letter sent to Dr Smith dated 3 June 2014 which enclosed what must have been the Tweed Hospital discharge summary and Dr Tong’s operation note. Thereafter in this supplementary report Dr Smith said:
“The operation note describes an open reduction internal fixation of an osteochondral fragment and bone graft. It does not really give the nature of the osteochondral fragment. One could take the view that on the occasion of the work incident of 14 February 2014, just walking along, she had a fracture of the femoral condyle.
That is highly improbable. It is much more likely that she has a childhood abnormality known as osteochondritis dissecans and that should be apparent by looking at the pictures and that fragment from the osteochondritis dessecans was probably what was treated.
I cannot be any clearer about the diagnosis than that.
…
It is unlikely her employment is a substantial contributing factor to her having osteochondritis dissecans. I would think it is almost impossible to simply sustain a fracture in a normally healthy femoral condyle just walking at work.”
In relation to the learned Arbitrator’s disposition of the appellant’s claim, I have mentioned above that he found against her on each of the issues of injury within the meaning of s 4 of the 1987 Act and substantial contribution by employment for the purposes of s 9A. I think the essence of his decision can fairly be stated as follows:
(a)he understood Dr McKee to be saying that the knee pain suffered by the appellant at work on 14 February 2014 involved the shearing off of an osteochondral fragment from the medial femoral condyle by a momentary subluxation of the patella and the snapping of the patella back into place: statement of reasons: paras [61] and [62];
(b)that opinion depended upon the history received from the appellant: para [63];
(c)on the evidence he could not find that the appellant applied force to her right knee when she stepped up and onto the step, there being no reference in any of the medical reports that she applied force: paras [66] and [67];
(d)Dr Buckland had no history of the appellant “flicking” or straightening her leg out: rather he recorded that she manipulated the patella back into place: para [72] (the reference to “Dr Payne” is clearly an error for Dr Buckland);
(e)although Dr McKee recorded a history of a stumble, there was no reference in any of the appellant’s evidentiary statements to a stumble: para [73]-[75];
(f)it is unlikely that the appellant suffered a fracture of the patella and the more likely causation of the pathology was subluxation of the patella shearing off the osteochondral fragment from the medial femoral condyle as found upon operation: paras [78] and [79];
(g)the history recorded by Dr Buckland should be preferred to the contents of the appellant’s evidentiary statements, and the doctor did not record a history of severe pain let alone pain causing a reflex action and straightening of the leg: paras [80]-[83]. Dr McKee’s opinion is dependent upon the history given to him by the appellant: para [84], repeating para [63] and the history and the appellant’s evidentiary statements are inconsistent with the records of the Tweed Hospital Emergency Department: para [86]-[88]. The history recorded at the hospital is to be regarded as a correct statement of what the appellant said: paras [90] and [91];
(h)because Dr McKee did not have the relevant history his opinion on causation is unacceptable: paras [92] and [93]. In para [94] the learned Arbitrator said that the evidence left him to speculate as to the causation of the appellant’s right knee pathology, a comment I take to mean that the evidence did not enable him to reach a conclusion on causation by rational inference from such facts as he regarded as demonstrated by the evidence before him;
(i)the appellant’s explanation for not having sought medical treatment for her knee until 24 February 2015 because she was waiting for Dr Buckland to return to work was worthy only of “little weight” given that she had been to the Tweed Hospital on 7 January 2014 with severe back pain: paras [95] and [96]. I take this to mean that the Arbitrator was unconvinced that the appellant had knee symptoms which required medical treatment in the period between 14 and 24 February 2014 (there is an erroneous reference to 24 February 2015 in para [95]), because she had been prepared to go to the hospital for other purposes not long before, and
(j)for all these reasons, or by reference to these considerations or both, the Arbitrator did not feel “actual persuasion” that the appellant had suffered injury on 14 February 2014: para [97].
This analysis by the Arbitrator dealt adversely with the appellant’s allegation of primary injury and meant that she failed in her claim for want of satisfaction of the requirements of s 4 of the 1987 Act. It was thus not strictly necessary for the learned Arbitrator to deal with s 9A but he did so in paras [98]-[121] of his reasons, concluding in the final para that the respondent had established that “… the employment concerned was not a substantial contributing factor to the injury.” This is a determination that if the Arbitrator were wrong in relation to the first issue, nonetheless the appellant’s claim failed in any event for want of satisfaction of s 9A.
As I understand the Arbitrator’s approach to the second, s 9A, question, it involves the following reasoning:
(a)the respondent bore the evidentiary burden of establishing that the employment concerned was not a substantial contributing factor to the injury: para [103];
(b)Dr McKee had both no proper foundation upon which to base an opinion that the employment concerned was a substantial contributing factor to the injury and had not given reasons for his opinion to that effect: paras [107] and [108]. He might have come to a different opinion had he had the history recorded in the records of the Tweed Hospital rather than the one given to him by the appellant: para [109]. This was repeated in paras [118]-[120];
(c)the authorities relied upon by counsel for the appellant (Super Retail Group Services Pty Limited v Uelese [2016] NSWWCCPD 4 and Taylor v PJM Building Management Pty Limited [2013] NSWWCCPD 52) (Uelese) did not assist the appellant because they were decided upon different facts: paras [14]-[117], and
(d)he was not satisfied that there was a causal link between the employment activity of walking and stepping onto a small step and the pathology in the right knee found upon operation, again with reference to the history recorded at the Tweed Hospital: para [118].
THRESHOLD MATTERS
There is no dispute that the threshold requirements of s 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.
FRESH EVIDENCE
Neither party sought to lead fresh evidence upon the appeal.
ON THE PAPERS
The parties are in agreement that this appeal may be dealt with “on the papers”. Upon my own consideration of the material before the Arbitrator and now before me, with particular regard to the fact that there was no application by either party to lead fresh evidence, I am satisfied that the matter can be properly dealt with upon the papers, although as I shall later indicate the evidence is in a far from satisfactory state.
SUBMISSIONS ON APPEAL
The appellant challenges the learned Arbitrator’s decision by way of nine grounds of appeal and detailed submissions in support of them. I will endeavour to outline each by a statement of the ground and a short summary of the argument as I apprehend it, and I will then outline the respondent’s response to each ground.
The first ground is that the Arbitrator’s findings of fact “… are not consistent with the findings”, which I take to mean that his findings of fact are not consistent with the evidence, a typographical error being involved. The submissions in support of this ground as I understand them are that the physical mechanics of stepping onto a small step were sufficient to constitute primary injury for the purposes of s 4 and substantial contribution by employment for the purposes of s 9A.
Ground 2 is that the Arbitrator erred in rejecting the appellant’s evidence as to the mechanism of her injury. The submissions in support of this ground do not align clearly with it in my view and seem to advance an argument that the Arbitrator’s findings of fact are incompatible with his ultimate decision (which I take to be what is intended by the expression “… incompatible with the Award”). It is put in support of this proposition that the Arbitrator accepted Dr McKee’s opinion that the appellant must have sustained a momentary subluxation of the patella resulting in a shearing off of an osteochondral fragment from the medial femoral condyle.
Ground 3 is that the Arbitrator erred in making a finding that no force was used by the appellant in the stepping action giving rise to her injury, and what is put in support of that is that the appellant’s evidence is that she was busy, rushing or moving quickly and must have made a “mis-step”. It was further put that the discrepancy in Dr McKee’s histories from first to second report as to whether the appellant was stepping down or stepping up did not matter, and that it was wrong to conclude that evidence of a “flicking” or straightening of the appellant’s leg was inconsistent with manipulation. These submissions were expanded under a further subheading, para 2.9.4, in which it was put ultimately that the Arbitrator was clearly in error in rejecting a submission (para [66] of his statement of reasons) to the effect that relevant force must have been applied to the appellant’s knee when she stepped up.
Ground 4 was that the Arbitrator erred in making “… findings as to the alleged inconsistency of the account of injury given by the appellant to Dr Buckland”, which I take to mean that he was wrong to say that there was any inconsistency between the history recorded by Dr Buckland and the appellant’s evidentiary statements. The submissions in support of this ground (para 2.9.5), as I would understand them, are to the same effect as the submissions in support of the previous ground. The appellant expanded her submission in support of Ground 4 in para 2.9.6, in effect, as I would understand it, pointing out alleged common sense considerations about the detail or lack thereof of Dr Buckland’s history and that an onset of knee pain could well produce a stumble.
Ground 5 was that the Arbitrator was in error in saying that Dr McKee did not have a proper history upon which to express an acceptable opinion on causation. In support thereof, taking up the Arbitrator’s use of the expression “fair climate” for the expression of a satisfactory opinion, it was put that a “fair climate” need not be a “perfect climate” and that Dr McKee’s history displayed only one small discrepancy, namely whether the appellant was stepping up or down. In relation to the records of the Tweed Hospital of 9 November 1998, it was put that the authorities caution against slavish attention to such records.
Ground 6 was that the Arbitrator erred in his decision concerning s 9A of the 1987 Act. In support of this it was put that the reasons which led the Arbitrator to hold that the appellant failed under s 4 were those which led him to hold that s 9A had not been satisfied and that in particular he was in error in discounting at least the decision in Uelese. Specific reliance was placed in para 2.9.8.12 of the appellant’s submissions upon a passage in Uelese (at [44]) in which the following view expressed by the Arbitrator in that case was approved at the Presidential level of the Commission:
“If an injury occurs at work and in connection with the performance of work activities and such injury cannot be explained by some medical or factual circumstances which, in effect, sever or weaken the causal connection between the work activities and the injury it will almost inevitably follow that employment will be a substantial contributing factor …”
It was further put in support of this ground in attacking the way the learned Arbitrator dealt with s 9A that his reasons were inadequate.
Ground 7 is that the Arbitrator erred in failing to draw a Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel) inference against the respondent. Shortly stated, the submissions put in support of this ground were that the documentary evidence in fact adduced by the respondent disclosed the identities of relevant or potentially relevant witnesses, and no evidence was forthcoming from them at least in a form which could be said to constitute their direct evidence.
Ground 8 is that the Arbitrator erred in his determination of the question of causation, both for the purposes of s 4 and s 9A of the 1987 Act. Reliance was placed on features of the evidence, essentially that what it was said should be taken from the evidence is that the appellant was able to work satisfactorily up until the time of the alleged injury and thereafter the evidence showed continuing complaints of knee trouble culminating in surgery in March 2014. Specific mention was made of the appellant’s evidence that she was walking quickly, and reliance was placed again on the decision in Uelese.
Finally, Ground 9 was that the Arbitrator failed to give proper reasons “… for his determination as to the fact of injury and the application of s 9A of the Act”. No submissions are expressly put in support of this ground, but I take it not to be abandoned: it is not said to be abandoned, and my reading of the appellant’s submissions on this appeal is rather to the effect that what is put in support of the other grounds is relied upon to the appropriate extent in support of this final ground. In addition, or in any event, specific express criticism of the Arbitrator’s reasons was made in relation to the way he dealt with s 9A of the 1987 Act in support of Ground 6 of the grounds of appeal. The same is applicable in respect of Ground 8: a specific and express complaint against the Arbitrator’s reasons is there made.
The respondent’s written submissions dealt seriatim with each of the grounds of appeal in answer to the appellant’s submissions.
As to Ground 1, especially in answer to para [62] of the Arbitrator’s statement of reasons, and possibly also in answer to para [61], as interpreted and relied upon by the appellant in para 2.9.2 of her written submissions, the respondent puts that it cannot be that the learned Arbitrator was accepting the opinion of Dr McKee on causation. This is because he later expressed the view that the history upon which Dr McKee was proceeding was not a proper one and his whole decision rejecting the appellant’s case can only be understood in those circumstances and entailing the rejection of Dr McKee’s opinion.
As to Ground 2, the respondent put that there was no necessity to cross-examine the appellant in order to rely upon inconsistencies in the evidence. It pointed to the fact that in the medical histories as distinct from one of her evidentiary statements there was no suggestion of a “mis-step” and that there were other inconsistencies. Accordingly it was open to the Arbitrator to reject the appellant’s evidence in relation to the injury.
As to Ground 3, the respondent supported the view that the appellant did not, in effect, subject her right knee to any force in stepping up the small step and putting her foot down.
As to Ground 4, the respondent supported the conclusion that there was an inconsistency, as I would understand it, between the history recorded by Dr Buckland and the other evidence about whether the appellant manipulated her knee or flicked or straightened her leg. This was put upon the basis that these physical concepts are distinctly different and that it was not legitimate for the appellant to categorise them as consistent with each other, the only difference being a matter of semantics. In para [14] of its written submissions the respondent went on to say that there was a relevant difference between the histories recorded by Dr Buckland and Dr McKee.
As to Ground 5, the respondent supported the conclusion that Dr McKee did not have a “fair climate” or satisfactory history, with the result that his opinion could not be accepted. In its submissions in answer to this ground the respondent went on to criticise Dr McKee’s opinion in any event upon a Makita basis (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218), it being submitted that the doctor gave no explanation as to why the spontaneous incident involving the onset of symptoms in the appellant’s right leg occurred. Significantly, in para [23] of its submissions in answer to this ground the respondent submitted that “… if the appellant had in fact undergone the surgeries recorded in the Tweed Hospital notes summarised at paras [88] and [89] of the decision, that would have been mentioned in the clinical records of Dr Buckland and Dr Tong”. It was also put (para [26]) that the appellant had not denied the truth of those records.
As to Ground 6, in relation to s 9A, the respondent contended that the learned Arbitrator’s reasons were adequate and that it was open to him to reject the opinion of Dr McKee because he did not have a history of the knee trouble recorded at the Tweed Hospital occurring between the time of the injury and surgery in Dubbo and the injury relied upon in these proceedings. It was also put that it was legitimate for the Arbitrator not to regard the authorities relied upon by the appellant as carrying any precedential value because they were decisions upon their own facts. Finally it was put that there was no evidence that the appellant put any weight on her knee, and no medical evidence that fast walking engaged in by the appellant increased her risk of injury.
As to Ground 7, the assertion that the appellant was entitled to a Jones v Dunkel inference in her favour was challenged. What was not put in answer to this ground, but might have been put, is that the appellant’s submissions did not indicate how such an inference would have tipped the scales in her favour, nor deal with the proposition that it is never compulsory to draw such an inference.
As to Ground 8, it was put that the Arbitrator’s reasons were adequate and that no error was made in his decision, in effect repeating that the decision should be seen as open to the Arbitrator.
As to Ground 9, the respondent compendiously put that the Arbitrator’s decision was open to him, that his reasons were supported by the evidence, and that the appellant was essentially engaged in “… seeking a merit review”. These propositions do not really touch upon this ground, which is, as abovementioned, an attack upon the Arbitrator’s reasons which is not separately elaborated beyond the cumulative effect of earlier submissions, but I do not think there is any doubt that the respondent has made clear in relation to its answers to the grounds of appeal collectively that it disputes any suggestion of inadequacy in the Arbitrator’s reasons. The mention of a “merit review” can be put aside. It is language from an area of the law not presently relevant: if the appellant had a right of appeal from the Arbitrator which was in some way limited so as to exclude a review of the factual findings as to their correctness the language might be appropriate, but it is infelicitous in the present context.
CONSIDERATION AND CONCLUSION
The appellant in order to overturn the Arbitrator’s decision carries the onus of demonstrating error of law, fact or discretion.
There is no relevant discretionary aspect of the Arbitrator’s decision. His decision that the appellant had not made out a case of injury for the purposes of s 4 of the 1987 Act and his decision that s 9A had not been satisfied were decisions of fact. The fate of the appeal depends upon whether those decisions of fact were correct in the sense of being fairly open to him: Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156; see also Whiteley Muir & Zwanenberg Limited v Kerr (1966) 39 ALJR 505 at 506 and Zuvela v Cosmarnan Concrete Pty Limited [1996] HCA30; 71 ALJR 29. As to the complaint about the Arbitrator’s reasons, a failure to give adequate reasons is an error of law vitiating the decision.
Before the appellant can succeed in this appeal she must first demonstrate relevant error in the Arbitrator’s decision on the issue of primary injury for the purposes of s 4 of the 1987 Act. If successful in that endeavour, the appellant must secondly, demonstrate error in respect of the Arbitrator’s decision in respect of s 9A.
I have no hesitation in saying that the learned Arbitrator fell into error on the first, s 4, question. Section 4, as is well known, can be satisfied if either of two disjunctive matters of fact are established. They are that either there was injury in the course of the employment, which is a purely temporal requirement that the injury happened at work, or that the injury arose out of the employment, which is a causal requirement linking the occurrence of the injury to some aspect of the employment duties in a causal sense. Both may be satisfied in any given case and that is frequently the situation. The Arbitrator was aware that “in the course of” poses a temporal test: see para [45] of his reasons.
I do not think it is possible to evaluate the evidence that was before the learned Arbitrator without being comfortably satisfied that the appellant suffered an onset of right knee pain at work at about 1.05 pm on 14 February 2014. Whatever may have been the position between the time of her surgery in Dubbo as a teenager and in 1998, there was no basis for doubting that she was able to walk and work normally, especially in her ten day period of employment with the respondent, before 14 February 2014. Nor was there any basis to rationally discount that she had symptoms thereafter up until the time of her surgery in March 2014, which surgery dealt with undoubted pathology in her knee. I regard the idea that there were no problems with the appellant’s knee until she saw Dr Buckland some days after her injury because had she had problems she would have gone to the hospital as she did in January with acute back pain as too flimsy to ground a decision adverse to her. There is no sound reason for saying that her knee trouble equated in severity to the acute earlier back trouble, and every reason to think it did not in light of the appellant having carried on at work for about another week following the injury.
In addition, I do not think there is any substance in the Arbitrator’s view that there is a difference between a manipulation of the appellant’s knee to alleviate her immediate problem and a flicking or straightening of the knee to instinctively or deliberately achieve the same effect. I think the appellant’s comment that any difference is only a matter of semantics is correct.
On this first issue I would accordingly allow the appeal, set aside the Arbitrator’s decision, and in lieu thereof substitute a finding that the appellant at about 1.05 pm on 14 February 2014 suffered injury to her right knee in the course of her employment with the respondent.
Much the more problematical question is the correctness of the learned Arbitrator’s decision in relation to s 9A of the 1987 Act. One can readily understand his approach and his conclusion except, in my opinion, his view that Dr McKee had not adequately explained his opinion as to the physical mechanics of the appellant’s knee injury in a Makita sense. In this connection it may be accepted that if the appellant was walking quickly and stepped up a very small step about 2 inches high she was carrying out activity of a kind which a very large number of people carry out both at and away from work without suffering any ill-effects. The Arbitrator had before him a single sentence statement from Dr Smith, the orthopaedic surgeon relied upon by the respondent, which was in plain terms that the employment was not a substantial contributing factor to the appellant’s knee condition. Then there was no doubt that the Tweed Hospital records in 1998 and 2014 contained entries inconsistent with the contents of the appellant’s evidentiary statements and the history recorded and acted upon by Dr McKee. Individually and collectively these features of the case, at least at first blush, justify the Arbitrator’s decision and demonstrate that it was open to him. The physical activity in which the appellant was engaged could be regarded as insubstantial, and the learned Arbitrator, having said that he was satisfied that the 1998 recording of the appellant’s history of bilateral knee problems at the Tweed Hospital was in effect a genuine one, was clearly presented with a report from Dr McKee which showed the doctor could have had no regard to that history. Also, para [41] of the appellant’s evidentiary statement of 23 April 2014, set out at [19] above, might have been seen to be an admission against her interest in these proceedings, although the Arbitrator does not seem to have so regarded it.
But in my opinion these considerations require deeper discussion and analysis than to take them at face value. Put another way, they needed to be analysed more closely in an appropriate set of judicial reasons for decision.
It is one thing to infer that records in hospital notes were accurately taken down. It is a different question whether their content is objectively correct. This can be important, as a line of Court of Appeal authority as to the different considerations which attend the creation of medical and hospital records from those which attend the adducing of evidence in court proceedings show. Even if the appellant said what the hospital records record her as saying, it was necessary to consider whether the records were reliable against the background of all the evidence in the case, and if so what they might have pointed to by way of decision in the proceedings.
The notion that the appellant had had multiple arthroscopies to both her knees stands in stark contrast to other outright objective evidence or relatively objective evidence, quite apart from her own evidentiary statements (which are not to be seen as necessarily in that category). Dr McKee found no surgical scars on the appellant’s left knee. He found only two scars from surgical incisions to her right knee apart from the very recent scar. The inference is open that the earlier scars were from the single operation in Dubbo. But however that may be, the finding of no surgical scars on the left knee I think quite literally gives the lie to the Tweed Hospital note in that regard and calls into serious question its reliability. This state of affairs is fortified by the evidence of Dr Smith. It is unthinkable that a competent orthopaedic surgeon would not compare the other knee of an examinee who is being assessed in relation to an alleged injury to the right knee, and absolutely nothing untoward is mentioned in respect of the appellant’s left knee in his reports.
It seems to me to be a valid criticism of the Arbitrator’s reasons to say that his reasoning takes no account of this, with all respect, rather obvious and glaring feature of the evidence, and that he needed to address the case at least in the alternative upon the basis that the records of the Tweed Hospital, upon which he clearly placed significant weight, were entitled to no such weight. This reasoning is absent from his statement of reasons.
Moreover, it seems to me that if he intended to base his decision upon the proposition that the records of the Tweed Hospital were not just genuinely transcribed but objectively correct, he failed to take account of the view that in those circumstances the opinion of Dr Smith could be seen as supportive of the appellant’s case. The doctor qualified his one sentence opinion to the effect that it was unlikely that the appellant’s employment was a substantial contributing factor to her injury with a further sentence saying that it was almost impossible to sustain a fracture in a normally healthy knee by just walking. But if the Tweed Hospital notes were accepted as objectively correct, they would justify an inference that at the relevant time the appellant’s knee was not a normally healthy one. There would therefore be some basis for a factual finding reversing the import of Dr Smith’s evidence, and failing that, for regarding it as irrelevant. It does not appear to me that the Arbitrator’s reasons deal with this aspect of the case which I think clearly presented itself upon the evidence.
In addition, if the appellant’s knee did have pre-existing problems, even if those problems were a significant part of the causation of her injury, it makes the conclusion that what she was doing at work at the critical time amounted to a substantial contribution to her injury much more readily available. I think proper reasons needed to consider this as well.
In expressing these views I acknowledge that, as mentioned earlier herein, the evidence was in a quite unsatisfactory state. For example, the appellant, who adduced the Tweed Hospital records in her case, did not deal in her evidentiary statements with the contents thereof suggesting problems with both her knees by 1998. Nor did the medical evidence deal expressly with that possibility. However I do not regard these things as endorsing the correctness of the reasons given by the Arbitrator.
Finally, I do not think the rejection of Dr McKee’s opinion on an apparent Makita basis takes proper account of a line of authority which has come into being since Makita was decided, commencing with Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 207; 234 FCR 549; 55 IPR 354. I understand that line of authority to show that Makita can fairly be regarded as a counsel of perfection, and to, with all respect sensibly, recognise that in relation to medical evidence doctors, relying on experience and intuition as well as expertise, cannot elaborate much upon an ipse dixit. I think that view is fairly available in respect of Dr McKee’s opinion. In any event it needed to be considered in relation to it and plainly was not. Consideration of this line of authority might well have endorsed the view expressed by Dr McKee set out in the last sub-paragraph of para [26] above.
For these reasons I would hold that the learned Arbitrator fell into error of law in not giving proper reasons for judgment in respect of s 9A.
The conclusions to which I have come make it unnecessary to deal with the appellant’s grounds of relying on Jones v Dunkel. But for the sake of completeness I should say that had it been essential to the disposition of the appeal to do so, I would have rejected it as being wholly without substance.
Accordingly I uphold the appeal, set aside the Arbitrator’s decision, and in relation to the finding of no injury for the purposes of s 4 of the 1987 Act I substitute a finding of injury in the course of the appellant’s employment, and as to the finding that s 9A of the Act was not satisfied, I set that finding aside and order that the matter be remitted for rehearing by a different Arbitrator.
ORDERS
Appeal allowed.
The decision of the Arbitrator dated 5 September 2016 is set aside.
The following orders are made in lieu thereof:
(a) The appellant suffered injury on 14 February 2014 in the course of her employment with the respondent.
(b) The question whether the appellant’s employment substantially contributed to her injury within the meaning of s 9A of the 1987 Act is remitted for redetermination by a different Arbitrator.
Larry King SC
Acting Deputy President
3 May 2017
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