Port Stephens Council v Harding
[2006] NSWWCCPD 6
•25 January 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Port Stephens Council v Harding [2006] NSWWCCPD 6
APPELLANT: Port Stephens Council
RESPONDENT: Raymond Harding
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 18568-04
DATE OF ARBITRATOR’S DECISION: 29 April 2005
DATE OF APPEAL DECISION: 25 January 2006
SUBJECT MATTER OF DECISION: Weight of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: White Barnes Solicitors
Respondent: Sparke Helmore Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant, Port Stephens Council, is to pay Mr Harding’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 27 May 2005, Port Stephens Council (‘the Council’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against a decision of an arbitrator dated 29 April 2005.
The Respondent to the appeal is Raymond Harding. Mr Harding was born on 7 September 1946 and is aged 59. The Council has employed him since 26 April 1966, currently as a project supervisor. On 19 January 1998, Mr Harding injured his right knee when he slipped and fell when coming down the steps of a work caravan on a construction site. He made a claim for compensation that resulted in a settlement in the Compensation Court of NSW on 27 February 2002, pursuant to which he received an award of $3,750 for “5% permanent loss of use of the Applicant’s right leg at or above the knee arising out of injuries sustained in the course of his employment”. Mr Harding also claims to have suffered further injury to his right knee as a result of the nature and conditions of his employment since 19 January 1998, requiring bending and walking over uneven ground.
On 19 November 2003, Mr Harding lodged a further claim for compensation in respect of the injury to his right knee. The Council denied further liability. On 12 November 2004, the Commission registered Mr Harding’s ‘Application to Resolve a Dispute’ in respect of his claim for medical, hospital or related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). He sought a general order for the costs of surgery and incidental expenses in accordance with the recommendations of his treating orthopaedic surgeon, Dr Peter Berton, for an arthroscopy of the right knee with anterior cruciate ligament reconstruction and patellar tendon tenolysis. In its ‘Reply’ received on 3 December 2004, the Council denied liability, disputing that surgery in the form of reconstruction of the anterior cruciate ligament was reasonably necessary as a result of the work related injury in 1998.
On 21 January 2005, the Arbitrator conducted a teleconference with the parties and, on 18 March 2005, conciliation having proved unsuccessful, she conducted an arbitration hearing. On 29 April 2005, the Arbitrator made the determination set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 29 April 2005, records the Arbitrator’s orders as follows:
“1. The Respondent to pay s60 expenses in relation to reconstructive surgery for the right knee upon production of accounts and receipts;
2. The Respondent to pay costs as agreed or assessed.”
In her ‘Statement of Reasons for Decision’, the Arbitrator made the following findings:
“I find that I am persuaded by Dr Sage and Dr Berton that the natural history of the Applicant’s condition when taken as a whole, draws me to conclude that on the balance of probabilities, the Applicant did sustain a partial tear which Dr Ostinga did not detect at the time of his arthroscopy. Dr Ostinga is strong in his view that this was not the case but he also leaves an element of doubt. He could not confirm whether he had probed the ligament. He confirmed that end range flexion which continued to be painful well after the operation, could be a sign of ACL [anterior cruciate ligament] damage although clearly at the time he thought the post operative pain was a result of the procedure itself. Dr Ostinga has not examined the Applicant since discharging him. Dr Berton was persuasive that the pictures taken at the time had the part of the ligament obscured.
I find that while medical opinion in respect to various tests such as Lachman’s test, MRI and the efficacy of arthroscopy vary, I am satisfied that Dr Berton’s view is the most convincing and is supported by the most recent medical data. This data supports the possibility that the tear could have been missed. Dr Slater’s view of the MRI is also convincing and he confirms a tear. Dr Sage supports Dr Berton’s view.
In respect to other causes, there had been little medical opinion to support cause [sic] other than the 1998 injury. The suggestion that the Applicant’s cricketing activities may have caused ligament laxity is rejected by Dr Berton. Dr Sage also sheets the laxity back to the 1998 injury. Dr Ostinga does not make any comment on this. The Applicant’s history indicates there were no knee problems prior to the 1998 injury and the on-going problems continued from that point.”
The Arbitrator concluded that Mr Harding received an injury to his right knee arising out of or in the course his employment as a project supervisor with the Council and was entitled to medical expenses pursuant to section 60 of the 1987 Act for reconstructive knee surgery upon production of accounts and receipts.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator made errors of law and fact in determining that the requirement for treatment to Mr Harding’s knee was causally related to his 1998 injury and, in particular, that Mr Harding sustained a tear of the anterior cruciate ligament in his right knee at the time of the injury on 19 January 1998. The parties’ submissions on the alleged errors, that mainly concern the weight the Arbitrator accorded to the medical evidence, are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of compensation at issue is, according to the Council’s solicitors, at least $5,000 and represents 100% of the amount in dispute. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
On 15 December 2005, Mr Harding’s solicitors lodged an ‘Application to Admit Late Documents’ with the Commission. The reasons given in support of what amounts to an application to admit new evidence were as follows: the documents were not available at the time of lodging their ‘Notice of Opposition’ to the appeal; the documents would be of assistance to the Commission in resolving the issues in dispute; and the new medical evidence updates Mr Harding’s medical condition, notes continuing problems with his knee, and supports Dr Berton’s clinical findings that made an arthroscopy a justifiable medical procedure. The new evidence comprises WorkCover medical certificates dated 6 December 2005, 8 December 2005 and 13 December 2005, together with a letter of referral from Mr Harding’s general practitioner, Dr Sonia Nightingale, to Dr Berton, dated 6 December 2005.
The evidence sought to be admitted is clearly evidence of Mr Harding’s condition since the Arbitrator’s determination and not at the date of the determination. I am not satisfied by Mr Harding’s solicitors’ submissions that to not admit this evidence would cause Mr Harding a substantial injustice, and I therefore refuse leave to admit the documents.
SUBMISSIONS
The Council’s solicitors submit the Arbitrator made an error in the weight she accorded to the evidence, with the consequence that her finding that the injury to Mr Harding’s anterior cruciate ligament was present in 1998, at the time of the arthroscopy, was against the weight of evidence. This error occurred in part because the Arbitrator made an error of law by failing to follow the principles identified by the NSW Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’) as to the acceptance of medical evidence. More specifically, the Council’s solicitors submit the Arbitrator made an error in preferring Dr Berton’s evidence to that of Dr Kim Ostinga, Mr Harding’s former treating orthopaedic surgeon. They also contend that Mr Harding’s solicitors are estopped from claiming that he suffered an injury to his anterior cruciate ligament in 1998 when the medical report of Dr John McQualter, relied on during the course of negotiations leading up to the filing of Terms of Settlement on 27 February 2002, accepted by the Compensation Court of NSW, opined on clinical testing that Mr Harding’s anterior cruciate ligament was normal.
Mr Harding’s solicitors submit the Arbitrator’s findings and subsequent determination are more than established by the evidence on the balance of probabilities. There was considerable evidence before the Arbitrator relating to the causal link between the injury and treatment recommended. As to the application of the principles in Makita, Mr Harding’s solicitors submit the reports and evidence of Dr Berton comply with those principles while Dr Ostinga’s evidence clearly does not. With regard to estoppel, they submit the Terms of Settlement made no admissions other than to record an agreement between the parties in relation to permanent impairment of Mr Harding’s right leg at or above the knee. There were no findings or admissions with respect to the cause of the impairment. Moreover, the current proceedings for section 60 medical expenses cannot be considered inconsistent with an earlier settlement for lump sum compensation.
EVIDENCE, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Council’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40 should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
There is no dispute that Mr Harding injured his right knee on 19 January 1998 when he slipped and fell when coming down the steps of a work caravan on a construction site. He was referred to an orthopaedic surgeon, Dr Kim Ostinga, who performed an arthroscopy and partial medial meniscectomy on the knee on 16 March 1998. Dr Ostinga did not find any evidence of damage to the anterior cruciate ligament. In his statement dated 26 September 2004, Mr Harding said that although he made a reasonable recovery from the surgery, his knee never fully recovered. He experiences aching around the knee, has difficulty crouching, and feels weakness and instability in the knee. His knee has given way on one occasion, in late 2001. The feeling of weakness and instability has increased since late 2003 when, because of this, he stopped playing cricket. There is no evidence of subsequent injuries to the right knee since 19 January 1998. None of the medical evidence suggests that Mr Harding’s ordinary activities, including playing cricket, have contributed to the problems he experiences with his knee.
In my view, it is reasonable to conclude from the evidence that, on the balance of probabilities, Mr Harding’s ongoing knee problems are causally related to his injury on 19 January 1998. There appears to be no evidence of any other cause to which his knee problems can be attributed. Having so concluded, the question raised is what is the nature of the condition affecting Mr Harding’s right knee that is causing his ongoing symptoms? This was the area of contention that appears to have been the main focus of the oral evidence and submissions at the arbitration hearing on 18 March 2005. Dr Ostinga, Mr Harding’s former treating orthopaedic surgeon, is now retired from surgical practice, and Mr Harding’s current treating orthopaedic surgeon, Dr Berton, specialises in knee problems. Both gave oral evidence at the hearing.
Dr Berton’s evidence is recorded in the transcript of the hearing. Unfortunately, most of Dr Ostinga’s is not. It appears the tape recorder was not working earlier in the hearing when Dr Ostinga was giving evidence. I am therefore reliant on the Arbitrator’s summary of Dr Ostinga’s evidence in her Statement of Reasons. Dr Berton said he suspected that there was an anterior cruciate ligament tear and he needed to confirm this with examination under anaesthetic and arthroscopy (transcript page 30). Dr Berton said Mr Harding’s incomplete recovery from the repair of his medial meniscus tear in 1998 implies that there is a structural problem within the knee, and subsequent events have indicated this problem is likely to be a partial tear of the anterior cruciate ligament (transcript page 19). Contemporary understanding is that there is a subgroup of people with whom you cannot diagnose the condition “until, over time, the knee declares itself” (transcript page 16).
Dr Ostinga said that when he performed the arthroscopy on Mr Harding’s knee on 16 March 1998, he found no evidence of a tear of the anterior cruciate ligament. (See also Dr Ostinga’s report dated 7 January 2004.) He agreed it was possible he might have missed a tear but considered it unlikely.
The parties also referred to two reports by Dr John Sage, Orthopaedic Surgeon, dated 15 January 2004, who examined Mr Harding for the Council. As the Council points out in its submissions, Dr Sage did not have Dr Ostinga’s report dated 7 January 2004 at the time he prepared his reports nor, as he acknowledged, were recent MRIs available for his inspection. Dr Sage concluded:
“The injury on 19 January 1998 fits in with a rupture of the anterior cruciate ligament.
It was not picked up at arthroscopy, so I imagine what the situation was is was [sic] a partial tear and most of the fibres appeared to be intact and they stretched out to give a positive Lachman’s of 1cm.”
Dr Sage did not recommend a reconstruction of the anterior cruciate ligament because Mr Harding’s knee giving way was not a significant feature of his situation.
The Arbitrator does not refer to Dr Sage not having access to all the available information when he prepared his report. Nevertheless, given other supportive evidence of her finding, including the Addendum, dated 12 November 2004, to Dr Garvin Williamsz’ report made by Dr Stuart Slater, Nuclear Medicine Physician, and, in particular, the evidence of Dr Berton, that I also found to be convincing and on which the Arbitrator placed considerable reliance, I am not persuaded that there is sufficient reason to interfere with the Arbitrator’s findings. I have reviewed the other medical evidence summarised by the Arbitrator in her Statement of Reasons and see no reason for repeating such a summary here. In my view, her Statement of Reasons contain a comprehensive survey of the relevant medical evidence and I am not satisfied that she made an error that would justify my interfering with her findings. I do note, however, that if I were called on to make a finding about the injury on 19 January 1998, it would be that it may have included a partial tear of the anterior cruciate ligament, because, as Dr Berton recognised, this can only be confirmed when a further arthroscopy is performed on the knee. Even though this could be seen as the Arbitrator having erred in her findings, the conclusion as to causation – that Mr Harding’s ongoing knee problems are related to the 1998 injury – remains the same and the modified finding would have no effect on the outcome of the proceedings.
Turning to the other matters raised by the Council in its submissions, in my view, the principle derived from the decision in Makita is that an expert witness must reveal the factual and intellectual basis for his or her opinion in order to facilitate an evaluation of the validity of that opinion by the trier of fact in determining what weight, if any, to accord to it. The Commission is, of course, not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate (section 354(2) of the 1998 Act). It must, however, act according to equity, good conscience and the substantial merits of the case (section 354(3)), and the rules of evidence provide a guide for the Commission as to the relevancy and reliability of evidence.
Having reviewed the reports prepared by Dr Berton and the transcript of his oral evidence, I am not satisfied that the Arbitrator made an error of law in her treatment of Dr Berton’s evidence. Dr Berton was cross-examined at length and, in my view, repetitively, about the factual and intellectual basis for his opinion, and was able to provide what the Arbitrator found, and I agree, were convincing answers. Moreover, there is nothing to suggest that she did not treat Dr Ostinga’s reports and oral evidence fairly in according it the weight she considered appropriate.
With regard to the Council’s submission that Mr Harding’s solicitors are estopped from claiming that Mr Harding suffered an injury to his anterior cruciate ligament as a result of their reliance on Dr McQualter’s evidence during the course of negotiations leading up to the 2002 Compensation Court settlement, I am not satisfied there is evidence of any admission by Mr Harding’s solicitors that would raise issue estoppel. (See the discussion of issue estoppel in Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43.) Mr Harding’s solicitors do not appear to have made any admission in the public documents that his anterior cruciate ligament was normal, and the fact that Dr John McQualter, in his report dated 20 October 2000, found “Tests of ligament integrity of his right knee were all normal” is not, in view, sufficient to found an estoppel.
In conclusion, I am not satisfied that the Arbitrator made any legal, factual or discretionary errors of law which would justify interference with her decision. I note, in terms of section 60 of the 1987 Act, that if Dr Berton performs an arthroscopy on Mr Harding’s knee in order to confirm the existence of a tear in his anterior cruciate ligament, and then proceeds with ligament reconstruction and patellar tendon tenolysis, for Mr Harding to recover his section 60 expenses in respect of those further procedures, they must be “incurred”, “reasonably necessary” and “properly verified”.
DECISION
The decision of the Arbitrator dated 29 April 2005 is confirmed.
COSTS
The Council is to pay Mr Harding’s costs in this appeal.
Robin Handley
Acting Deputy President
25 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
3
3
0