Pevy v Traffic Systems (Australia) Pty Limited
[2007] NSWWCCPD 101
•30 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Pevy v Traffic Systems (Australia) Pty Limited and others [2007] NSWWCCPD 101
APPELLANT: William Craig Pevy
FIRST RESPONDENT: Traffic Systems (Australia) Pty Limited
SECOND RESPONDENT: Marrickville Council
THIRD RESPONDENT: M McGuiness
FOURTH RESPONDENT: WorkCover Authority of NSW
FIRST RESPONDENT’S INSURER: Employers Mutual NSW Limited
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
THIRD RESPONDENT’S INSURER: Uninsured
FILE NUMBER: WCC10139-06
DATE OF ARBITRATOR’S DECISION: 9 October 2006
DATE OF APPEAL DECISION: 30 April 2007
SUBJECT MATTER OF DECISION: Parkinson’s disease; causation, and reasons.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Whitelaw McDonald
First Respondent: No Appearance
Second Respondent: No Appearance
Third Respondent: No Appearance
Fourth Respondent: DLA Phillips Fox
ORDERS MADE ON APPEAL: The Arbitrator’s findings as to deemed employment and the Third Respondent’s non-insurance are confirmed. So far as they relate to the Third and Fourth Respondent, the remainder of the Arbitrator’s findings and determination dated 9 October 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for the Appellant Worker’s claims against the Third and Fourth Respondents to be re-determined.”
The Fourth Respondent is to pay the Appellant Worker’s costs of the appeal. Costs of the first Arbitration are to follow the event of the second Arbitration.
BACKGROUND TO THE APPEAL
On 31 October 2006 William Craig Pevy (‘the Appellant Worker/Mr Pevy’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 October 2006.
Mr Pevy was born on 3 January 1965 and for many years was a professional boxer. His last fight was on 18 February 1994. Between 1996 and 2001 he worked in various labouring jobs but he alleges no injury in this period. On 21 June 2001 he suffered an injury to his head when the branch of a tree struck him whilst he was working for the First Respondent. In 2002 he developed symptoms similar to Parkinson’s disease. At some stage he also developed pain in his neck and left shoulder. Before the Arbitrator, Mr Pevy claimed that as a result of his career as a boxer and as a result of his June 2001 injury he suffers from Parkinson’s disease or brain damage and an injury to his neck and left arm in the nature of an aggravation of a disease. His Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 5 July 2006 and joined four Respondents.
In his Application he sought weekly compensation from all Respondents from 1 January 2003 to date and continuing together with medical expenses and lump sum compensation in respect of a 15% permanent impairment of his neck and 10% permanent loss of efficient use of his left arm at or above the elbow. Whether the Application accurately reflects the claim made is unclear as counsel for Mr Pevy indicated to the Arbitrator at page two line 35 of the transcript that no claim was made against the Third and Fourth Respondents for lump sum compensation.
The First Respondent is Traffic Systems (Australia) Pty Limited (‘the First Respondent’). Mr Pevy worked for the First Respondent in 2001 as a traffic controller and labourer. In the course of his employment on 21 June 2001 he was struck on the head by the branch of a tree and was allegedly knocked unconscious. He was taken to Gosford Hospital where he received six stitches and was allowed home.
The claim against the Second Respondent (the occupier of the venue for Mr Pevy’s last professional fight) was discontinued on 13 September 2006 and has no relevance to the arbitration or the appeal.
The Third Respondent is M McGuiness (‘the Third Respondent’), a boxing promoter who promoted Mr Pevy’s last fight. As such he is deemed to have been Mr Pevy’s employer at that time (see Schedule 1 Clause 15 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). Mr McGuiness is uninsured under the NSW workers compensation legislation and cannot be located. He has taken no part in the proceedings.
As a result of the Third Respondent being uninsured the WorkCover Authority of NSW has been joined as the Fourth Respondent, as the manager of the Uninsured Liability and Indemnity Scheme. The Fourth Respondent conducted the defence of Mr Pevy’s claim against the Third Respondent.
Mr Pevy’s claim against the Third Respondent is that as a result of a long career as a professional boxer he now suffers from Parkinsonism, or alternatively, brain damage, and that he sustained injury to his neck and left arm or aggravated his neck and left arm. The date of injury is alleged to be either 18 February 1994, the date of his last fight, or 22 July 2004.
Mr Pevy failed in all of his claims as the Arbitrator was not satisfied that he suffers from Parkinson’s disease. Nor was he satisfied that Mr Pevy suffered any injury to his neck or left arm in the June 2001 injury. Mr Pevy seeks leave to appeal the Arbitrator’s decision in respect of his claim against the Third Respondent. No challenge is made to the Arbitrator’s decision in respect of the First Respondent.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 October 2006, records the Arbitrator’s orders as follows:
“1.Award for the Respondents.
2.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)stating that only Dr O’Neill had a complete and accurate history when in fact there was no significant difference between that doctor’s history and the history recorded by Dr Mellick;
(b)finding that Dr Mellick’s opinion was based on incomplete and inaccurate histories;
(c)concluding that there was no reliable medical opinion supporting the diagnosis of Parkinson’s disease or any condition related to the head injuries that Mr Pevy suffered in his career as a boxer;
(d)misunderstanding Dr Mellick’s opinion;
(e)accepting the opinions of Dr O’Neill in preference to those of Dr Mellick;
(f)failing to give sufficient weight to the opinions of Dr Mellick and Mr Pevy’s treating doctors;
(g)giving no rational reason for preferring the opinion of Dr O’Neill over the opinions of Dr Mellick and Mr Pevy’s treating doctors, and
(h)failing to deal with Mr Pevy’s claim that his cervical spondylosis was aggravated by his boxing.
THE EVIDENCE
In view of the nature of the claim and the issues raised on appeal it is necessary for me to review the evidence in detail.
Mr Pevy started his boxing career at the Police Boys Club in Newcastle when he was 13 years old. He had 87 amateur fights and won the Australian Bantamweight and the Oceania titles when he was 18 (Mr Pevy’s statement 30 September 2004 (‘statement’), paragraphs 34 to 36). He turned professional in 1983 and had 38 bouts between then and his last fight on 18 February 1994 when he was 29. Over his career he was also a sparring partner for world champions, Jeff Fenech and Kosta Tyzou.
At the age of 14 Mr Pevy struck his head on the bottom of a public swimming pool at Wallsend near Newcastle resulting in him receiving 14 stitches in his forehead and causing him intense neck pain (statement, paragraphs 14 to 17). He received physiotherapy for a couple of months and “fully recovered” (statement, paragraph 19). He continued with his fledgling boxing career. He notes at paragraph 20 of his statement that to compete as a boxer it was necessary that he pass a medical examination every six months, which he did.
As a boxer Mr Pevy sustained many head injuries and was knocked unconscious on a number of occasions. A letter from the Boxing Authority of NSW dated 7 March 2005 provides details of the results of all of Mr Pevy’s 38 fights as a professional. He lost seven of those fights by knockout, including his last. He also had many fights where he received a ‘standing 8 count’ where the fight was later stopped (statement paragraph 45). Over his career he sustained many injuries and had his nose fractured on about a dozen times (statement, paragraph 43).
When he retired from boxing in 1994 Mr Pevy was 29 years of age.
On 25 October 1994 a truck struck Mr Pevy when he was riding his bike at Cardiff. He was knocked unconscious and suffered internal injuries. It is not alleged that he has any ongoing problems from that accident (statement, paragraph 27).
In November 1995 a car struck Mr Pevy. He states that he was knocked unconscious in this accident (statement, paragraph 30) but no independent information is available to indicate the nature or extent of his injuries. His statement that an ambulance took him home suggests that this injury was not serious.
Between 1996 and 2000 Mr Pevy worked for Skilled Engineering, a labour hire company, who hired his services to many different companies as a labourer. It is not alleged that he sustained any work related injury in this period.
On 5 October 1999 Mr Pevy attended a general practitioner at the Hunter Street Medical Centre, and gave a history that he injured his neck on 3 October 1999 while doing “back flips” (see clinical notes from Hunter Street Medical Centre). Neck x rays revealed degenerative narrowing of the C5/6 and C6/7 discs. A diagnosis of osteoarthritis of the neck was made. It is not known what, if any, impact this injury had on Mr Pevy’s capacity to work.
On 12 July 2000 Mr Pevy attended on his general practitioner, Dr Mujic, at the Hunter Street Medical Centre, claiming that he had been in a fight five weeks earlier and sustained head and nasal injuries. He also said he had been in a car accident two days before and injured his neck.
In June 2001 Mr Pevy started work with the First Respondent as a traffic controller. On 21 June 2001 he was struck on the head by falling branch. He believes he was knocked unconscious and taken to Gosford Hospital. The hospital notes are ambiguous on the question of loss of consciousness: one entry, by Dr Murdoch, reads “? LOC briefly” but the triage form states “Nil LOC – good recollection of events”. His main injury was a laceration to his scalp in which he received six stitches. There is also a note “Neck Tender (R) paravertebral muscles”. A WorkCover certificate was issued by the hospital stating that his injury was a “laceration to the scalp” and declaring him fit for work from 22 June 2001. An x ray of the cervical spine dated 22 June 2001 showed degenerative changes with narrowing at C5-6 and C6-7.
On 22 June 2001 Mr Pevy attended on Dr Bergin at the Hunter Street Medical Centre complaining of a headache as a result of the incident at work the day before. He was prescribed panadene forte and given a certificate of unfitness for work for one week.
On 23 July 2001 Mr Pevy saw Dr Summers at the Hunter Street Medical Centre because of anxiety and insomnia as a result of nearly being struck by a steal bar protruding from a car at work the day before.
On 27 July 2001 Mr Pevy saw Dr Furey at the same practice and was diagnosed with anxiety and depression as a result of an alleged threat at work. The doctor prescribed antidepressant medication and certified Mr Pevy unfit for seven days. Mr Pevy was seen on numerous occasions over the next three months for symptoms of agitation and insomnia and was prescribed antidepressant and antipsychotic medications. He did not return to work for the First Respondent.
Mr Pevy states that ever since the 21 June 2001 accident his neck has never been the same and he has had ongoing neck pain, headaches and pain in his left shoulder (statement, paragraph 76). This statement is not accurate. The clinical notes from Hunter Street Medical Centre confirm that there were no complaints of neck pain after the June 2001 incident.
In late 2001 Mr Pevy moved to Queensland where he worked with Chiquita Bananas as a labourer. This was heavy work that required him to carry 80 kilogram bunches of bananas on his shoulders. He took time off work because of pain in his neck and left shoulder (statement, paragraph 88). The pain ultimately forced him to stop work (statement, paragraph 89).
Whilst in Queensland he was treated by Dr Stark for carpal tunnel syndrome in October 2002. In December 2002 he attended on Dr Stark because of left shoulder pain and a diagnosis of rotator cuff tendonitis was made. At about this time he moved to Byron Bay in NSW where Dr Tracy at the Cape Byron Medical Centre treated him.
From January 2003 Mr Pevy was treated at various times by both the Hunter Street Medical Centre and Dr Tracy at Byron Bay. On 6 January 2003 Mr Pevy attended on Dr Ashley at the Hunter Street Medical Centre complaining of multiple aches and pains and was referred for physiotherapy at John Hunter Hospital. The physiotherapy notes dated 9 January 2003 suggest a complaint of pain in the left shoulder and down the left arm with numbness and pins and needles in the left hand. Under ‘current history’ Mr Pevy’s job is described as being “carrying bananas”.
On 23 January 2003 Mr Pevy attended at Cape Byron Medical Centre and complained of his left shoulder and of a “resting tremor” in his left hand. The notes record “ex boxer - ? Parkinsonism – ETOH abuse – Marijuana abuse”. In February 2003 Dr Tracy referred Mr Pevy to Dr O’Sullivan, neurologist, at Royal Brisbane Hospital for investigation of the left hand tremor.
On 30 April 2003 the neurology registrar at Royal Brisbane Hospital, Dr Tan, and Dr O’Sullivan co-signed a letter to Dr Tracy. In that letter they noted the following:
a) Mr Pevy had a left hand tremor that had been present for 18 months;
b) there was no focal weakness or sensory symptoms and no evidence of ‘cogwheeling’;
c) his gait was normal;
d) there was no sign of cerebella dysfunction;
e) sensory examination was normal, and
f) Mr Pevy had been a professional boxer for 11 years and had been knocked out several times;
The letter concluded:
“In summary, Mr Pevy has mono-symptomatic Parkinson’s Disease with only a resting tremor in his left hand. This may be related to his previous head injuries as a boxer.”
In May 2003 Mr Pevy was referred for physiotherapy at the Royal Newcastle Hospital. At the initial examination on 2 May 2003 he complained of left arm symptoms. On examination he was found to have a full range of movement of his cervical spine, left shoulder and elbow. The physiotherapist felt his problems were more related to his central nervous system than his musculoskeletal problem (report, Spiro Tamvakeras, physiotherapist, 19 May 2003)
Dr O’Sullivan reviewed Mr Pevy on 28 August 2003 and reported to Dr Tracy on 2 September 2003. Mr Pevy continued to have a tremor in his left hand but received considerable benefit from his medication (artane). There was no rigidity or bradykinesia and no other features of Parkinson’s disease. He felt that the most likely cause of the tremor was Parkinsonism. He added:
“This could be as a direct result of trauma to the striatonigral system, however the progressive nature of his symptoms, and the lack of a clear association between a distinct traumatic event would suggest that this is a more progressive disorder. The most likely explanation therefore is that this is early onset Parkinson’s disease. I think, given his long history of repeated head trauma, it is quite likely the head trauma is a significant contributor. Having said that, at present he only has rest tremor and no other features of parkinsonism and it would be premature to state that he will clearly go on to develop the other features of parkinsonism, although in my opinion that is the most likely outcome. He is understandably concerned about potential compensation from his boxing and I think it would be reasonable for him to look into this. I do not believe however, that there is any association between his tremor and the injuries to his left shoulder and right wrist incurred last year while working on a banana plantation and I explained that to him.” (emphasis added)
In a further report from Dr O’Sullivan dated 2 September 2003 and addressed ‘To Whom it May Concern’ the doctor stated:
“The nature of the tremor is similar to the tremor seen in Parkinson’s disease. I think the tremor is likely to indicate some damage to the structures in the brainstem that can also be affected in Parkinson’s disease. At this point in time, it is difficult to determine whether this is early Parkinson’s disease or whether this is a different condition solely related to his previous head trauma from boxing. I believe it is more likely that this is early Parkinson’s disease and it has become apparent at this relatively young age because of the head trauma. The definitive diagnosis may become clearer with time.” (emphasis added)
Dr O’Sullivan reviewed Mr Pevy again on 22 October 2003 when Mr Pevy complained of vivid hallucinations, postural light-headedness and some falls.
On 3 February 2004 Mr Pevy saw Dr Pacey, consultant in rehabilitation and pain medicine, at Broadmeadow in NSW. He complained of problems with left sided neck pain and tremor that had been present for “about a year and a half” and “came on in October 2002 when he was carrying bananas” (report, Dr Pacey 3 February 2004). The doctor found it difficult to characterise Mr Pevy’s symptoms.
In May 2004 he was referred to Dr Parsons, neurologist, at the John Hunter Hospital who reported to Dr Mujic on 7 May 2004 that the left tremor continued and that Mr Pevy had significant pain from degenerative cervical disease. Mr Pevy said that he found marijuana significantly improved the tremor and his neck pain, which the doctor thought possible. Dr Parsons felt that the tremor was “extrapyramidal in nature and probably reflects Parkinson’s pugilistica.”
It is difficult to determine exactly when Mr Pevy first complained of neck pain after the June 2001 incident but the above chronology suggests it was many months after the June 2001 accident.
Dr Mellick examined Mr Pevy for medicolegal purposes on 3 November 2004 (report 8 December 2004). So far as Mr Pevy’s head injuries and neurological symptoms are concerned, Dr Mellick noted:
a) subsequent to the June 2001 injury Mr Pevy developed a “tremor of his left upper limb, slurred speech and abnormality of his gait” which occurred insidiously, with the tremor first noticed during 2002;
b) the tremor has become steadily worse with the passage of time;
c) there was no family history of Parkinson’s disease;
d) the past medical history included:
·“multiple head injuries” during Mr Pevy’s career as a boxer which started in 1978 and included being knocked out on 12 occasions, including in his last fight;
·a head injury when Mr Pevy was 14 years old and he struck his head when he divided into a pool;
·a head injury in October 1994 when he was struck by a truck and rendered unconscious;
·a head injury on 1 November 1995 when he was struck by a car and rendered unconscious;
·a head injury in June 2001 when struck by the branch of a tree and rendered unconscious, and
·a head injury as a result of an assault on 18 July 2004.
On neurological examination Dr Mellick noted at page four:
·Mr Pevy exhibited an “intermittent compound tremor of the left upper limb with pill-rolling movements;
·a mild tremor of the left lower limb;
·mild cog-wheel hypertonicity in the left upper limb when provoked by cervical rotation;
·the glabellar tap was absent;
·the palmomental and grasp reflexes were absent;
·mild unsteadiness of gait on tandem walking, and
·no abnormalities within the cranial nerves.
Dr Mellick was in possession of Dr O’Sullivan reports (and other medical reports) and made specific reference to that doctor’s findings on examination and opinion about Mr Pevy’s condition. He was also in possession of Mr Pevy’s statement dated 30 September 2004 and made extensive reference to it, especially when dealing with Mr Pevy’s past head injuries.
Under ‘opinion’ at page five Dr Mellick thought that the history and his findings on examination pointed to “the presence of Parkinsonian features as well as evidence of cervical spondylosis”. The Parkinsonian features included the “compound tremor of the left upper limb as well as the tremor of the left leg together with abnormalities of tone”. He added:
“The Parkinsonian features should be regarded to be determined by one of two mechanisms. It is possible that he has an idiopathic Parkinson’s disease which is a degenerative disorder. The alternative is that the Parkinsonian features which are present are related to his career as a boxer and to multiple head injuries experienced during that time. Other head injuries not determined by his career as a boxer, such as the one which occurred when he was struck by the falling limb of the tree and the head injuries associated with the motor vehicle accidents and the altercation with bouncers, might also have contributed in some degree to any Parkinsonian disorder arising as a result of his boxing career.
The Parkinsonian features are relatively mild and on clinical ground its [sic] is not possible to make a definite aetiological diagnosis. The Parkinsonian features which are present could be due to idiopathic disease or to the multiple head injuries, particularly those which occurred during his lengthy boxing career. However, on the basis of probability I think his boxing career and the head injuries suffered have contributed to the Parkinsonian syndrome which he now exhibits.” (emphasis added)
In his report of 30 June 2005 Dr Mellick added the following in response to a letter from Mr Pevy’s solicitor:
“1.I believe that the Parkinson’s disease from which your client suffers is a ‘disease of gradual onset’.
2.I think it is likely that boxing is the ‘sort of employment’ which has contributed to the ‘nature of the disease’.
3.I think it likely that boxing was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of the disease.”
The medical evidence relied on by the Fourth Respondent is a report from Dr O’Neill, consultant neurologist, dated 8 April 2005 obtained by the solicitor for the First Respondent. In respect of Mr Pevy’s boxing career, Dr O’Neill records the following history at page two:
“Mr Pevy told me he began amateur boxing in 1978 at the age of thirteen. He said he had fought 87 amateur bouts and remembered he has been knocked unconscious on several occasions. He turned professional at the age of eighteen and said there had been 38 professional fights. He remembers being knocked unconscious on two occasions – the last time during his last fight at the age of thirty-one. He said there had also been two technical Kos [knockouts]. He had been Australian bantam weight champion on 17 December 1983 and Australian light weight champion on 22 February 1991.”
Under ‘diagnosis’ Dr O’Neill stated:
“Mr Pevy has an involuntary tremor of the left arm. I would classify this as a possible dystonic tremor. It is unassociated with any extrapyramidal signs. He does not have Parkinson’s disease. The tremor is associated with slightly slow and slurred speech. It is possible but by no means certain that these neurological symptoms are on the basis of recurrent head injuries as a consequence of boxing. He will need to remain under neurological review and the diagnosis remains undetermined at this stage.
He sustained a minor head injury in the tree incident of 21 June 2001. This head injury is certainly not the type which would cause any long-term permanent neurological sequelae. I do not believe he has sustained any permanent deficit because of it.”
Under ‘causation’ Dr O’Neill stated:
“I do not believe Mr Pevy’s employment with Traffic Systems and, in particular, the incident on 21 June 2001 has been responsible for any permanent impairment or loss of use of any body part.”
On 2 November 2004 Dr Oakeshott, consultant surgeon, examined Mr Pevy at the request of the solicitor for the First Respondent. In his opinion, Mr Pevy has a “typical Parkinsonian tremor of his left hand and arm” (page eight) and constitutional cervical degenerative changes in his neck. The doctor added that Mr Pevy’s “Parkinson Syndrome is related to his boxing career”.
ARBITRATOR’S REASONS
Parkinson’s Disease / Head Injury
The Arbitrator noted that there was no dispute that Parkinson’s disease is a disease of gradual onset. He then found that the diagnosis of Parkinson’s disease had not been made out in Mr Pevy’s case (Reasons, paragraph 56) and referred to Dr O’Sullivan’s report of 2 September 2003 addressed ‘To Whom it May Concern’ where the doctor noted, “the definitive diagnosis may become clearer with time”.
In respect of Dr Mellick’s evidence the Arbitrator stated at paragraph 58 that the doctor’s “conclusions that on the balance of probabilities his boxing career and head injuries contributed to the Parkinsonim [sic] Syndrome is based on incomplete and inaccurate histories.” In respect of the other doctors in the case the Arbitrator stated that only Dr O’Neill “has been provided with a complete and accurate history”.
After referring to Dr O’Neill’s conclusion about the consequences of the June 2001 accident the Arbitrator concluded at paragraph 62:
“Accordingly, the evidence does not support a finding that the Applicant does have Parkinson’s disease, nor on the balance of probabilities, does he have any disease associated with his career as a boxer.”
At paragraph 64 of his Reasons the Arbitrator added that this conclusion was arrived at:
“…because the objective clinical medical evidence does not support a conclusion that he sustained a neck injury in the 2001 accident, and because there is no reliable medical opinion which supports a diagnosis of Parkinson’s Disease or any condition related to the head injuries that he may have suffered in his boxing career.”
Neck Injury
The Arbitrator accepted the submissions of the First and Fourth Respondent that so far as Mr Pevy’s orthopaedic injuries were concerned Dr Machart was the only doctor who had “the benefit of a complete and accurate medical history of the Applicant” (Reasons, paragraph 51).
He added that it had been “comprehensively demonstrated” that the “histories taken by all doctors other than Dr Machart and Dr O’Neill have been incomplete and inaccurate” (Reasons paragraph 53). He felt that:
“The inaccuracies and omissions are of such significance that it is impossible to endeavour to salvage or discern from the doctors opinions what the doctor’s opinion would be if a correct and complete history were given – indeed it would be completely inappropriate to undertake such an exercise”
He concluded that the medical evidence did not support a finding that Mr Pevy suffered a neck injury in the June 2001 accident.
SUBMISSIONS AND FINDINGS
Parkinson’s Disease / Head Injury
The Appellant Worker’s challenge on this issue is that the Arbitrator was wrong to conclude that Dr Mellick’s conclusions were based on an inaccurate and incomplete history.
The relevant histories have been set out above. They are very similar, but not identical. So far as Mr Pevy’s boxing career is concerned, the main difference between the history taken by Dr Mellick compared to that taken by Dr O’Neill is that Dr Mellick recorded that Mr Pevy sustained “multiple head injuries” during his career as a professional boxer and was knocked out on 12 occasions (report 8 December 2004, page two). Dr O’Neill recorded that Mr Pevy fought in 87 amateur bouts in the course of which he was knocked unconscious on “several occasions” and he had 38 professional fights in which he was knocked unconscious on two occasions and had two technical knockouts (report 8 April 2005, page two). In addition, Dr Mellick had a history of the following events that Dr O’Neill did not have:
a)the other head injuries Mr Pevy sustained throughout his life, and
b)that Mr Pevy was involved in sparring with Jeff Fenech and Kosta Tyzou.
Dr Mellick had the benefit of seeing Mr Pevy’s statement dated 30 September 2004, which was not available to Dr O’Neill. Dr Mellick referred to that statement in detail. The statement confirmed that Mr Pevy had 87 amateur and 38 professional fights (paragraph 36), sustained many head injuries throughout his boxing career in which he had “many standing 8 counts” in fights that were stopped because the referee felt he had taken “too many hits to the head” (paragraph 45) and that he had been knocked “totally unconscious from boxing on a number of occasions” but he could not remember how many times (paragraph 46).
Mr Pevy’s boxing career as a professional is detailed in the letter from the Boxing Authority of NSW dated 7 March 2005, which confirms that he lost by knockout on seven occasions. It does not record how many times he was knocked unconscious.
I agree with the Appellant Worker’s submission that there is no significant difference between the histories recorded by Dr Mellick and Dr O’Neill. If anything, Dr Mellick has a more detailed history of Mr Pevy’s head injuries. However, Dr Mellick’s history that Mr Pevy was knocked out 12 times was probably inaccurate, at least as far as Mr Pevy’s professional boxing career was concerned. In addition, it is not clear if Dr Mellick understood that Mr Pevy was knocked unconscious on 12 occasions or merely lost by knockout on 12 occasions. On either view, Dr Mellick’s history as to the number of ‘knockouts’ was probably inaccurate. I say ‘probably’ because the full records of Mr Pevy’s amateur career were not in evidence and his recollection is less than perfect.
However, Dr O’Neill’s history that Mr Pevy had been knocked unconscious twice and had two technical knockouts was also inaccurate. The fact is that it is unknown exactly how many times Mr Pevy was knocked unconscious during his boxing career. What is important is that he had a long career and over the course of that career he sustained many blows to the head. Both doctors had that history. However, as Dr Mellick had the benefit of Mr Pevy’s statement (which he referred to extensively) it is my view that he had a more complete history than Dr O’Neill.
The Fourth Respondent submits that it was a matter for the Arbitrator to “view the evidence in its entirety” and to weigh that evidence and make a determination (Fourth Respondent’s submissions, paragraph 1.6). It relies on the following passage from Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 (‘Makita’) where Heydon JA said:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).”
The submission then made is that it was within the Arbitrator’s discretion to decide which medical evidence was more reliable. His determination was that Dr O’Neill’s evidence was more reliable given that the history of injuries obtained by Dr O’Neill was more complete than the other doctors. Therefore, it is submitted that the Arbitrator did not err in finding that Mr Pevy does not have Parkinson’s disease or any other disease associated with his boxing career.
The facts assumed by Dr Mellick have been set out in paragraph [46]. As I have noted, his history was not perfectly accurate but it was more extensive and complete than the history recorded by Dr O’Neill. In addition to the above passage from Makita, Heydon JA also said at 731-2:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.”
Judge Armitage considered the above cases in Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76 where he stated:
“In Paric at the above reference, Samuels JA refers to the situation where facts stated in an expert’s report do not completely correspond to the facts proved at trial, and held that where there is a ‘fair climate’ for the acceptance of the expert’s opinion, this may occur, notwithstanding the discrepancy just referred to, relying on various authorities which his Honour cited from America and elsewhere. His Honour said that this question is essentially one of fact and degree.”
In my opinion the facts proved in the present case provided a ‘fair climate’ for the acceptance of Dr Mellick’s opinion. The Arbitrator’s rejection of his opinion and acceptance of Dr O’Neill was based on the incorrect conclusion that Dr Mellick’s history was “incomplete and inaccurate”. In my opinion, Dr Mellick’s history, though not perfect, was more detailed and comprehensive than that taken by Dr O’Neill. The reference to 12 knockouts may well be correct but is impossible to prove, as there are no records of Mr Pevy’s amateur career. It entitled him to express an opinion, as a neurosurgeon, about the nature of Mr Pevy’s condition, and its cause.
I also agree with the Appellant Worker’s submission that Dr O’Neill was concerned with the injury on 21 June 2001 and his report did not explore in the same depth the connection between Mr Pevy’s boxing and his neurological condition. As the solicitor for the First Respondent retained Dr O’Neill to provide an opinion about the consequences of the June 2001 accident, it is logical that he focused more on that injury. The First Respondent had no interest in whether Mr Pevy’s boxing career caused his neurological condition.
I agree with the Fourth Respondent’s submission that the role of an Arbitrator is to view the evidence in its entirety. The Arbitrator did not do that in this matter.
The Appellant Worker submits that the Arbitrator was wrong when he concluded that there was no “reliable medical opinion which supports a diagnosis of Parkinson’s disease or any condition related to the head injuries that he may have suffered in his boxing career” (Reasons, paragraph 64). I agree with this submission.
The Appellant Worker’s argument is that as a matter of law a definitive aetiological diagnosis is not necessary for Mr Pevy to succeed. That is correct. In Seltsam Pty ltd v McGuiness [2000] NSWCA 29 Spigelman CJ stated at [93] and [94]:
“93 With respect to many diseases, medical science is able to give clear and direct evidence of a causal relationship between a particular act or omission and a specific injury or disease. There are, however, fields of inquiry where medical science is not able to give evidence of that character. There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility. Epidemiological evidence may be able to fill the gap. It is of particular potential utility in the field of what is often referred to as ‘toxic torts’, especially in case of diseases with long latency periods.
94 In circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the Courts are not thereby disenabled from making decisions as to causation on the balance of probabilities. As Herron CJ said in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242:
‘Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’”
Dr Mellick provided strong support, on the balance of probabilities, for a connection between Parkinson’s disease and Mr Pevy’s boxing career. Other specialists in the case also supported that conclusion.
Other evidence on the issue of diagnosis and causation included:
a)report from Drs Tan and O’Sullivan dated 30 April 2003 stating that Mr Pevy has “mono-symptomatic Parkinson’s disease” which may be related to his previous head injuries as a boxer;
b)in his report of 2 September 2003 addressed ‘To Whom it May Concern’ Dr O’Sullivan stated that it was difficult to determine whether Mr Pevy’s condition was early Parkinson’s disease or “a different condition solely related to his previous head trauma from boxing”. He added that it was more likely to be due to early Parkinson’s disease and that it had become apparent at a relatively young age because of the head trauma;
c)Dr Parson’s, neurologist, thought that Mr Pevy’s symptoms probably reflected Parkinson’s pugilistica, and
d)Dr Oakeshott thought that Mr Pevy had a typical Parkinsonian tremor and that his Parkinson’s syndrome was related to his boxing career.
Against this evidence was the opinion from Dr O’Neill who conceded that a connection between Mr Pevy’s symptoms and his boxing career was possible, though not certain. It is not necessary for the causal connection between the condition complained of and the employment to be established as a matter of certainty. It is only necessary that it be established on the balance of probabilities.
In these circumstances the Arbitrator was in error and his findings in respect of Mr Pevy’s claim that he suffered Parkinson’s disease or a brain injury as a result of his employment as a boxer must be revoked and the matter re-determined.
Neck and Arm Injuries
The challenge to this part of the Arbitrator’s decision is that whilst he referred to Dr Mellick’s evidence that Mr Pevy’s boxing more likely than not contributed to the development of his cervical spondylosis, he failed to make a determination about that part of the claim under his ‘findings and reasons’. The Fourth Respondent makes no submission on this point.
An Arbitrator has a clear obligation to give adequate reasons for his or her decision (see Rule 73 of the Workers Compensation Commission Rules 2003 which applied at the time of the hearing before the Arbitrator and Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). The Arbitrator’s acceptance of Dr O’Sullivan’s evidence did not dispose of this issue because Dr O’Sullivan did not comment on whether Mr Pevy’s neck condition had been caused or aggravated by his work as a boxer. The Arbitrator did not consider this issue. All of his findings about Mr Pevy’s neck related to the allegations against the First Respondent.
The Arbitrator’s failure to consider and determine Mr Pevy’s claim that he suffered an injury to his neck as a result of his work as a professional boxer was an error that requires that the determination and findings against the Third and Fourth Respondents be revoked.
RE-DETERMINATION
On appeal under section 352 of the 1998 Act it is open to a Presidential Member to revoke an Arbitrator’s decision and substitute a new decision in its place. Whilst the substitution of a new decision is often a desirable course to adopt, I do not believe it is the appropriate course in the present case. First, the relief sought by the Appellant Worker is that the matter “be remitted for arbitration” (Appellant Worker’s submissions, paragraph 29). Second, the Respondent Employer has made no submissions about the outcome that should follow in the event that the appeal is successful. Third, the exact basis of the claim against the Third Respondent is unclear: whether it is a claim under section 4(b)(i) and section 15 of the 1987 Act, or, under section 4(b)(ii) and section 16 of that Act, has not been argued.
In these circumstances it is appropriate that the matter be remitted to a different Arbitrator for re-determination and that is the course I propose to adopt.
DECISION
The Arbitrator’s findings as to deemed employment and the Third Respondent’s non-insurance are confirmed. So far as they relate to the Third and Fourth Respondents, the reminder of the Arbitrator’s findings and determination dated 9 October 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for the Appellant Worker’s claims against the Third and Fourth Respondent to be re-determined.”
COSTS
The Fourth Respondent is to pay the Appellant Worker’s costs of the appeal. Costs of the first Arbitration are to follow the event of the second Arbitration.
Bill Roche
Deputy President
30 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
4
0