Purdon v Munro
[2009] NSWWCCPD 98
•13 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Purdon v Munro [2009] NSWWCCPD 98 | |||||
| APPELLANT: | David Purdon | |||||
| RESPONDENT: | Eric John Munro | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1- 239/09 | |||||
| ARBITRATOR: | Mr J Wynyard | |||||
| DATE OF ARBITRATOR’S DECISION: | 28 April 2009 | |||||
| DATE OF APPEAL HEARING: | 6 August 2009 | |||||
| DATE OF APPEAL DECISION: | 13 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Application of principles in Jones v Dunkel (1959) 101 CLR 298; weight of evidence; forensic medical report; clauses 43 and 43AA of the Workers Compensation Regulation 2003 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr William Purdon, solicitor | ||||
| Respondent: | Ms E Wood, instructed by Sparke Helmore Lawyers | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 28 April 2009 is confirmed. | |||||
| Each party is to pay his or its costs of the appeal. | ||||||
BACKGROUND
The worker, David Purdon, injured his back on 5 May 2005 while moving a large heavy construction jack in the course of his employment with the respondent, Eric Munro. At the time of the incident, Mr Purdon was working on the construction of steel silos at an isolated property in Queensland. He remained at work and finished the job two days later. He then returned home to Sydney and visited his local general practitioner, Dr Nijhawan, and was referred to a surgeon in Wollongong. He underwent surgery to his lower back on 25 July 2005 and has not returned to work since.
He completed a claim form on 6 June 2006 in which he stated that he injured his lower back on 5 May 2005. The respondent’s insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), accepted liability in July 2006.
In an Application to Resolve a Dispute for weekly compensation filed in the Commission on 7 November 2006 in matter number 17556 of 2006, Mr Purdon claimed weekly compensation from 6 June 2006 until 30 October 2006 in respect of a disc protrusion in his lower back caused on 5 May 2005. After a contested hearing where the only issue was the calculation of Mr Purdon’s average weekly earnings and current weekly wage rate, the Commission made orders in favour of Mr Purdon in a Certificate of Determination dated 22 February 2007.
Some time after his spinal surgery, Mr Purdon developed neck pain, headaches and numbness in the fingers in his right hand. Based on assessments by Dr Ellis in a report dated 14 August 2007, Mr Purdon’s solicitor, William Purdon, claimed by letter dated 20 August 2007 compensation on behalf of the worker for a 37% whole person impairment together with compensation for pain and suffering.
By letter dated 4 September 2007, CGU advised that it had not received all relevant particulars about the claim and requested that supplementary evidence be provided setting out the calculations of whole person impairment in line with the current WorkCover Guidelines for the Assessment of Permanent Impairment. By letter dated 27 November 2007, CGU advised that the worker had not yet reached maximum medical improvement and that no offer of settlement would be made.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 16 January 2009, the worker claimed lump sum compensation for a 37% whole person impairment plus compensation for pain and suffering. The Application alleged, for the first time, that the worker sustained the following injuries on 5 May 2005:
“Lumbo-sacral spinal injury, cervical spine injury, impairment of blabber [sic, bladder]”
In a letter dated 6 February 2009, the respondent’s solicitors, Sparke Helmore, purported to serve a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The notice stated that the claim had been reviewed and liability declined for the worker’s alleged impairment to his cervical spine for the following reasons:
“· We do not accept you sustained an injury to your cervical spine as a consequence of the injury of 5 May 2005. Your treating doctors reports only refer to an injury to your lumbar spine.
· You were examined by Dr Le Leu, Dr Grant and Dr Langley. You did not provide a history of cervical spine injury or symptoms to these doctors. They all diagnosed a lumbar spine injury as a consequence of the incident on 5 May 2005.
· The only medical report that refers to an injury to your cervical spine is a report of Dr Ellis. He obtained a history of your neck symptoms developing 12 months after the back condition and considered it related to your lumbar spine injury.
· Given the absence of any record of injury or symptoms to your cervical spine we asked Dr Le Leu to comment on Dr Ellis’ report. Dr Le Leu provided a report dated 6 February 2009 in which he considered your cervical spine symptoms were unrelated to your lumbar spine injury.”
The above letter is attached to the respondent’s Reply, filed in the Commission on 6 February 2009. At Part 3 of the Reply the respondent denied that the worker sustained an injury to his cervical spine and disputed the degree of impairment claimed.
The claim for lump sum compensation was referred to a Commission arbitrator. At a teleconference on 24 February 2009, the Arbitrator ordered the respondent to file with the Registry a Direction for Production on Dr Nijhawan requiring production of his clinical notes and records pertaining to the worker. By letter dated 3 March 2009, Sparke Helmore filed with the Registry a Direction for Production addressed to Dr Nijhawan.
The matter was listed for conciliation and arbitration before Arbitrator Wynyard on 7 April 2009. On that day counsel represented the respondent and Mr William Purdon represented the worker. The worker gave evidence and was briefly cross-examined and the parties made detailed submissions.
In a reserved decision delivered on 28 April 2009, the Arbitrator made an award in favour of the respondent in respect of the alleged injury to the cervical spine. The Arbitrator’s formal orders were set out in a Certificate of Determination dated 28 April 2009 in the following terms:
“1.Award in favour of the respondent in respect of the claim for the cervical spine.
2.I remit this matter to the Registrar for referral to an AMS on the following bases:
a.Date of injury: 5 May 2005;
b.Matter for assessment: Lumbar spine, neurological impairment of the bladder;
c.Method: Whole person impairment;
d.Evidence: Application to Resolve a Dispute plus attached documents and Reply plus attached documents.
3. No order as to costs.”
By an appeal filed on 25 May 2009, the worker seeks leave to appeal against the Arbitrator’s order making an award in favour of the respondent in respect of the claim for the cervical spine.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no dispute that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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.”
The worker seeks to rely upon the following additional evidence on appeal:
(a) a copy of the Directions for Production – orders issued by the Registrar on 24 February 2009;
(b) a copy of the Direction issued by the Arbitrator, Mr Wynyard, on 24 February 2009, and
(c) a letter from CGU to the worker dated 26 September 2008 advising of an appointment with Dr Le Leu, an injury management consultant.
To rebut the allegation that it did not comply with the Arbitrator’s Direction at the teleconference, the respondent seeks to tender additional evidence in the form of letter addressed to Dr Nijhawan on 4 March 2009 enclosing a Direction for Production.
All of the above documents should have been tendered at the arbitration. They were all available at that time and no explanation has been offered as to why they were not tendered. The worker’s submissions in support of the admission of the late evidence involve a misunderstanding of the principles in Jones v Dunkel ((1959) 101 CLR 298 (‘Jones v Dunkel’)). To properly deal with that issue, however, the additional evidence will have to be admitted. In these circumstances it is in the interests of justice that all of the additional evidence be admitted and, in the absence of any prejudice to either party, that is the course I propose to adopt.
THE EVIDENCE
Mr Purdon’s evidence
The worker’s evidence is set out in his statement of 25 March 2009, filed after the Arbitrator’s Direction at the teleconference on 24 February 2009. He states that he was injured at work on 5 May 2005 whilst moving a large heavy construction jack. In October 2005 (referred to as 25 July 2005 in other evidence) he attended at Wollongong Hospital and underwent a discectomy. His back pain and disability continued after that surgery and he lodged a claim for workers compensation with CGU on 6 June 2006.
The worker was referred to Dr Langley by CGU for an examination on 19 June 2006. At the time of this examination he did not have noticeable numbness in his hand, but he suffered frequent headaches and “whole body soreness”.
On a date not disclosed, Mr Purdon attended on Dr Nijhawan and told him of his “various ailments which included but [were] not limited to headaches, soreness and dull tingling fingers which had began to develop.” Those symptoms had, on Mr Purdon’s evidence, become more and more apparent and disabling, though he did not say when that happened.
Dr Nijhawan referred Mr Purdon to Dr Divan for further assessment and possible treatment. Mr Purdon considered having that treatment, but decided against it, as there was no guarantee of any further improvement in his health.
Mr Purdon saw Dr Ellis for medicolegal purposes on 10 August 2007. He informed Dr Ellis of “developing numbness in [his] right hand, frequent headaches and pain in [his] shoulder.” Mr Purdon said that Dr Ellis informed him that this was a “common consequence of [his] injury.”
Mr Purdon attended on Dr Grant at the request of CGU on 16 October 2007 and on Dr Le Leu on 18 October 2008. Dr Le Leu told him that he had been unable to access the electronic copy of his file sent to him by CGU and he did not have any information from CGU. Mr Purdon told the doctor of his symptoms in his right hand, his headaches and soreness in his shoulders. The doctor did not ask about or examine Mr Purdon’s neck.
Mr Purdon also relies on a letter written by him to his solicitor on 15 February 2009 in response to CGU’s section 74 notice. The letter states:
“Please be advised that following the receipt of the correspondence from CGU dated 10th February 2009 and the issuing of the section 74 certificate I attended the surgery of Doctor Nijhawan this date 15th February 2009 for the purpose of my workers compensation injury.
I had a conversation with Dr Nijhawan about my injuries and gave him a copy of the correspondence of the 10th. Doctor Nijhawan advised me that according to his records I had spoken to him on a number of occasions about pain and symptoms to my upper body, in particular my arm and shoulders. He further advised me that if any clarification of the extent of my injuries is required by CGU he directed me to direct them to write to him and he will reply to their request for further information.”
The key points of Mr Purdon’s oral evidence at the arbitration are:
(a) in October 2005 he underwent surgery to his lower back and “not long after the operation” (T 13.5) he developed tingling in his right hand and two of his fingers, loss of strength in his right hand, neck pain, and constant headaches, soreness and stiffness;
(b) he made a claim for compensation on 6 June 2006;
(c) he discussed with Dr Langley the symptoms he was experiencing at that time (June 2006) including the stiffness in his neck, tingling in his arm and fingers, headaches and persistent pain in the upper part of his body (T13.14);
(d) he reported the same symptoms to Dr Ellis who told him certain things “pertinent to that injury” (T13.30) and he put the details of that in his report. He also reported his neck symptoms, headaches and tingling in his fingers to Dr Grant;
(e) he attended on Dr Le Leu for the purpose of an injury management consultation. He told Dr Le Leu about the tingling in his fingers, headaches, the stiffness and soreness in his neck and other related matters (T14.19);
(f) Dr Nijhawan treated many aspects of his injuries and the symptoms related to the them and he (Mr Purdon) has “at all times discussed with Dr Nijhawan, amongst other things, the tingling in [his] fingers, the constant headaches and the numbness – the soreness in the shoulders” (T14.31);
(g) Dr Nijhawan referred him to Dr Diwan, a spinal specialist at Kogarah Hospital, who made certain recommendations, but Mr Purdon did not have the confidence to proceed with them (T14.35);
(h) Mr Purdon agreed that Dr Ellis’ history that the neck pain developed “in the last twelve months” was correct (T15.22). However, he denied that his neck pain developed in or about August 2006 (T16.28). When pressed as to when his neck pain commenced, Mr Purdon said it was some time after the operation “approximately six months” (T16.31) and the symptoms had become more apparent;
(i) when further pressed about Dr Ellis’ history, Mr Purdon said that the doctor was recording “when [he] would say the substantial amount of pain was noticeable and reportable” (T16.37);
(j) his neck symptoms “became reportable” twelve months after the surgery (T16.50), that is, to a level that he found it necessary to tell a medical practitioner about it (T17.12);
(k) he did not injure his neck in the accident on 5 May 2005 (T17.33), and
(l) Mr Purdon first complained to Dr Nijhawan about difficulties with his neck “about twelve months after the operation” (T18.22).
Medical evidence
As will be seen later in this decision, both parties tendered medical reports at the arbitration that are inadmissible under the Workers Compensation Regulation 2003 (‘the Regulation’). The respondent tendered reports from Dr Grant and two reports from Dr Le Leu, and Mr Purdon tendered a report from Dr Langley and Dr Ellis. Because of the wide-ranging submissions made by Mr William Purdon, I have set out a summary of all the medical reports that were before the Arbitrator, but I have based my decision on the admissible reports only.
Mr Purdon relies on two medical reports in support of his claim. The first is from Dr Langley dated 23 June 2006 and addressed to CGU, the second is from Dr Ellis dated 14 August 2007 and addressed to Mr William Purdon.
Dr Langley saw the worker in Sydney on 19 June 2006. He took a history of the May 2005 incident and that Mr Purdon suffered an injury to his back whilst lifting a jack at work on that day and later developed pain in his left leg together with incontinence. He also recorded that the surgery undertaken on Mr Purdon’s lower back was in the nature of a discectomy, which was performed in July 2005 at Wollongong Hospital.
Dr Langley recorded the worker’s “present complaints” to be “stabbing pain and aching in his back, pins and needles in his left foot, aching in his knees and groin, stiffness up his spine and aching in his neck.”
On examination, Dr Langley observed a three-centimetre scar over Mr Purdon’s lumbo-sacral spine. There was reduced movement in his back flexion and extension, lateral flexion to the right and left, and rotation to the right and left. It does not appear that Dr Langley examined Mr Purdon’s neck.
Under “Opinion”, Dr Langley stated that Mr Purdon suffered an injury to his back and developed low back pain. He underwent surgery for bulging discs at L4/5 and had been left with a permanent impairment. Dr Langley made no reference to or comment on Mr Purdon’s cervical spine.
Dr Ellis also took a history of the May 2005 injury to the low back, but recorded that the back surgery was performed in October 2005, not July 2005. In respect of Mr Purdon’s cervical spine, Dr Ellis took the following history:
“Neck pain has developed in the last 12 months and the pain spreads to involve his head, there are occipital and frontal headaches from which he did not suffer previously. The pain does not spread to the shoulders or arms, but there is numbness over the last 12 months in digits, 3, 4, and 5 of the right hand becoming more frequent. There is weakness in his right arm and restriction of movement in the right shoulder.”
Dr Ellis referred to radiological investigations of the lumbar spine, but made no mention of any such investigations of the cervical spine.
On examination, Dr Ellis noted that neck flexion, rotation and lateral flexion to the left were reduced to two-thirds of the normal range and that movements to the right were restricted to one-quarter of the normal range. Shoulder movements were restricted, particularly on the right side.
Under “Impression”, Dr Ellis concluded that as a result of the lifting strain at work on 5 May 2005, Mr Purdon suffered a musculo-ligamentus contusion, aggravation, degenerative change in his back with secondary effects in his left lower limb, referred pain and neurological deficit. In respect of the neck symptoms, Dr Ellis added:
“As a consequence of the back injury in the last 12 months he has developed a strain of the lower cervical discs consequent on the muscle spasm, loss of alignment and altered weight balance at the lower lumbar level. It is a common clinical finding for upper cervical discs to be strained as a consequence of the lower spinal impairment. Consequent on the neck injury now he has restriction of shoulder movement, impaired light touch sensibility and weakness, particularly affecting his right arm.”
The respondent tendered reports from Dr Le Leu, specialist occupational physician, dated 18 October 2008 and 6 February 2009, and from Dr Grant, consultant neurosurgeon, dated 17 October 2007.
Dr Le Leu took a consistent history of the back injury on 5 May 2005. In respect of Mr Purdon’s current symptoms, the doctor noted that he experienced tingling in the fingers of his right hand, but had not had any neck x-rays. The doctor explained to Mr Purdon that this symptom “was unrelated to his injury”. Dr Le Leu felt that Mr Purdon could upgrade his fitness for suitable duties from two hours a day three days a week to four hours a day two days a week.
In his report of 6 February 2009, Dr Le Leu responded to a request from Sparke Helmore for a supplementary report. He did not re-examine Mr Purdon. Dr Le Leu referred to his previous examination and to the documentation that had been provided to him at or about the time of that examination. He noted that there was no “specific reason” for him to examine Mr Purdon’s neck or to ask questions about it. Apart from the complaint of tingling in the fingers of the right hand, none of Mr Purdon’s statements related to his neck. The doctor summarised the situation as follows:
“· His general practitioner, who has been seeing him frequently, has raised no concerns about his neck (at least, not in any of the documentation I saw which consisted of WorkCover NSW medical certificates).
· In the last 3 ½ years since the accident nobody has been sufficiently concerned about his neck to perform even basic imaging in the form of a neck x-ray; in particular, Mr Purdon, who is obviously a very intelligent man capable of significant academic achievement, has not requested any such imaging or, if he did, he did not mention any refusal and no refusal is documented.
· Mr Purdon just mentioned the symptom recorded above in my report in passing and he did not refer to it again; it was clear that his lower back and left leg were of paramount concern and he was learning to ‘live with it’ (the associated pain and disability) and was making an appropriate career change.
· On the basis of the material above the symptoms relating to the neck are minor.
· Dr Ellis is the only doctor who has connected his neck injury with the incident.
· I suggest this connection is speculative, provides a causal basis which is tenuous, and it is far more probable than not that the neck problem, whatever its nature, is unrelated to the subject incident.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) his application of the decision of Jones v Dunkel;
(b) his understanding of and application of the hearsay rule and his consideration of the exception concerning contemporaneous statements about a person’s health under section 66A of the Evidence Act 1995 (‘hearsay evidence’);
(c) in admitting the supplementary report from Dr Le Leu (‘Dr Le Leu’s reports’), and
(d) making a decision that was against the weight of the evidence (‘weight of evidence’).
Mr William Purdon’s submissions also referred to a problem arising because the respondent did not serve its section 74 notice within a reasonable time, resulting in his client being “ambushed” (‘section 74 notice’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Jones v Dunkel
The worker correctly submits that the Arbitrator ordered the respondent to file with the Registry a Direction for Production addressed to Dr Nijhawan. The Commission’s administration file reveals that the respondent’s solicitors complied with that direction and filed a Direction for Production directed to Dr Nijhawan on 3 March 2009. A sealed copy of that Direction was returned to Sparke Helmore on the same day and the Direction was served on Dr Nijhawan under cover of letter dated 4 March 2009. The Direction for Production required the doctor to produce, among other things, his clinical notes relating to David Purdon to the Commission at 1 Oxford Street, Darlinghurst by 23 March 2009. The Commission’s records indicate that Dr Nijhawan did not comply with the Direction for Production and did not forward any documents to it.
Next, Mr Purdon submits that the respondent did not tender any evidence at the arbitration on 7 April 2009 as to whether it had complied with the Arbitrator’s order of 24 February 2009 and the respondent did not seek to tender any clinical notes or records from Dr Nijhawan. Mr Purdon argues that a Jones v Dunkel inference should therefore be drawn against the respondent.
This submission is misconceived. The principles in Jones v Dunkel are summarised in Cross on Evidence, 7th Australian edition 2004, at [1215], as follows:
“First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case.…The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered:…
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness.”
In the present case, there is no reason to infer that the respondent did not tender Dr Nijhawan’s notes because it “feared to do so”. Nor is there any reason to conclude that the respondent was obliged or expected to tender Dr Nijhawan’s notes. The fact is that Dr Nijhawan failed to comply with the Direction for Production and the respondent was never in possession of the relevant notes. Therefore, even if it were expected that the respondent would tender evidence from the treating general practitioner (which I do not accept) no adverse inference can be drawn in circumstances where the Commission’s file clearly indicates that Dr Nijhawan failed to respond to the relevant Direction for Production. Mr Purdon’s submission is untenable and I reject it.
Hearsay evidence
It is argued on behalf of Mr Purdon that the Arbitrator erred in preventing him giving evidence “about contemporaneous statements he made to Dr Nijhawan about his cervical spine” (Mr William Purdon’s submissions dated 20 May 2009 at paragraph 2.8). In his supplementary submissions (undated but apparently filed on 16 June 2009) Mr William Purdon submitted that the Arbitrator erred in not permitting him to give evidence of his discussion with Dr Ellis. It is argued that, by not allowing Mr Purdon to give evidence of this discussion, it is not known whether or not the evidence was hearsay. Even if it was hearsay, it was likely, so it is argued, to be an exception to the hearsay rule under section 63 or section 66A of the Evidence Act “and related to section 354 of the 1998 Act”.
By Direction issued by me on 20 July 2009, Mr Purdon was directed to file a statement setting out the hearsay evidence that was allegedly wrongly excluded. Mr William Purdon responded on 28 July 2009 that he relied on the hearsay evidence in the worker’s statement of 15 February 2009. He also referred to parts of the transcript where objections had been taken, but he did not indicate the nature of the hearsay evidence that he says was wrongly excluded. He was unable to do so at the appeal hearing.
This ground of appeal has no basis. Though the respondent objected to Mr Purdon’s statement of 15 February 2009, the Arbitrator admitted the statement and marked it “E” (T8.44). Though Mr William Purdon could not identify the hearsay evidence that he says was wrongly excluded at the arbitration, it is clear from the transcript that the evidence related to something Dr Ellis allegedly said to the worker (T13.26). Mr Purdon’s statement of 25 March 2009 referred to his attendance on Dr Ellis and recounted that he informed the doctor of the development of numbness in his right hand, frequent headaches and pain in his shoulder and that “Dr Ellis informed [him] this was a common consequence of [his] injury.”
Given this evidence, and given that the worker is unable to indicate what further hearsay evidence was wrongly excluded, this ground of appeal is without merit and I reject it. Mr Purdon’s hearsay evidence of what he said to Dr Nijhawan and what Dr Ellis said to him was before the Arbitrator and is before me. The weight to be attached to that evidence is considered below.
Dr Le Leu’s reports
In the submissions originally filed with the appeal, Mr William Purdon did not raise any objection to Dr Le Leu’s reports. In his submissions filed on or about 16 June 2009, he submitted that Dr Le Leu’s supplementary report had been objected to at the arbitration because it was not a forensic medical report. That objection would seem to also cover Dr Le Leu’s first report.
I have some trouble with this submission. At the arbitration, Dr Le Leu’s reports were admitted without objection and marked “1” (T8.57). In the course of submissions at the arbitration, however, Mr William Purdon said:
“Now, Dr Le Leu, as I have mentioned, is an injury management consultant. He did not issue a forensic medical report, and it’s my submission that his report may not be admitted in any case. I would rely on section 43(1).”
He then made submissions about the contents of Dr Le Leu’s reports.
The reference to “section 43(1)” is an error and is a reference to clause 43 of the Regulation. That clause provides:
“(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
In this clause:
forensic medical report:
(a)means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.”
The worker’s submissions are misconceived for two reasons. First, there are two limbs to the definition of a “forensic medical report”. The first relates to a report from a specialist medical practitioner who has not treated the worker that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement in respect of a claim or dispute. The second relates to a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act. That section requires that a worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner provided and paid by the employer.
The worker’s argument is that he was sent to Dr Le Leu, an injury management consultant, to assist him with his return to work and not for the purpose of “proving or disproving an entitlement”. Even if there were any merit in that submission, it ignores the second part of the definition of a forensic medical report, which includes a medical report provided in respect of an examination of the injured worker under section 119 of the 1998 Act. Dr Le Leu’s first report is clearly caught by the second part of the definition of a forensic medical report.
Second, the worker’s submissions seem to proceed on the incorrect assumption that a medical report is inadmissible if it is not a forensic medical report. Clause 43 only restricts the number of “forensic medical reports” that may be admitted on behalf of a party to proceedings. It does not restrict the number of other medical reports that may be tendered. Therefore, if they were not forensic medical reports, as Mr William Purdon argues, Dr Le Leu’s reports would be admissible, subject to compliance with the Rules and Regulation regarding service.
The reports from Drs Grant and Langley are also “forensic medical reports”, as defined in the Regulation. Under clause 43, only one forensic medical report may be admitted on behalf of a party to proceedings. The respondent has acknowledged that fact in its submissions on appeal and it does not rely on Dr Grant’s medicolegal report. At the oral hearing of the appeal, Mr William Purdon conceded that Dr Langley’s report is a forensic medical report and he elected to rely on Dr Ellis’ report.
This still leaves the issue that there are two forensic medical reports from Dr Le Leu upon which the respondent seeks to rely. Clause 43AA permits the admission into evidence of a supplementary report in certain circumstances. It states:
“43AA Supplementary reports admissible
(1) Despite clauses 43 and 43A, a medical report other than the original report (‘a supplementary report’) may be admitted if:
(a)it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information, and
(b)it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report.
(2) A supplementary report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the report referred to in clauses 43 and 43A.
(3) A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.”
Counsel for the respondent, Ms Wood, submits that Dr Le Leu’s reports are admissible because the first report is a forensic medical report and the second report is a supplementary report under clause 43AA. In support of its admissibility as a supplementary report, Ms Wood submitted that:
(a) as Dr Le Leu’s original report is silent on causation and as the claim for the neck was not properly made until the worker served the Application, the respondent was entitled to seek a medical opinion on causation and to have the further report treated as a supplementary report;
(b) had clause 43 been properly raised, the respondent could have had another examination, and
(c) if an issue arises after a report is served, a respondent should be allowed to put it to its medical expert for comment in a supplementary report.
Clause 43AA allows a supplementary report where that report has the purpose of clarifying the original report, but the supplementary report must not go outside the parameters of the original report. The example given in clause 43AA(1)(a) is only one illustration and is not the only situation where a supplementary report will be permitted. In the present case, Dr Le Leu was initially qualified to “provide recommendations to assist with [Mr Purdon’s] return to work” (see CGU’s letter to Mr Purdon dated 26 September 2008). His first report dealt only with that issue and, after liaising with Dr Nijhawan, he recommended that Mr Purdon could increase his hours and try duties in real estate or car sales as suggested by the vocational assessor. He made no comment about the worker’s alleged neck injury or claim for lump sum compensation.
Dr Le Leu’s second report deals exclusively with the alleged neck injury and with Dr Ellis’ opinion. It does not seek to clarify the original report and it clearly goes outside the parameters of the original report, which was restricted to Mr Purdon’s fitness for work. In these circumstances, there is no basis upon which to find that Dr Le Leu’s second report is a supplementary report within the terms of clause 43AA. The respondent can therefore only rely on one of Dr Le Leu’s reports.
If it is not entitled to rely on both of Dr Le Leu’s reports, the respondent argues that the second report is admissible as a forensic medical report on its own and it elects to rely on that report. Over the years the practice developed in the former Compensation Court of NSW where medical experts were asked to provide two reports after examining a worker for medico-legal purposes. One setting out the history, radiological investigations, findings on examination, and conclusions as to causation and incapacity, and a second report, usually much shorter, setting out an assessment of loss of efficient use of the injured body part, if dealing with a pre-2002 injury, or assessing the whole person impairment, if dealing with a post-2002 injury. That practice has continued in the Commission. In those circumstances the two documents are usually regarded as one report and it would usually be considered improper to tender only one of the two documents.
In the present case, however, Dr Le Leu’s second report is an entirely separate document that has arisen to meet a new claim, namely a claim for lump sum compensation as a result of an alleged injury to the back and neck. The injury to the back is not disputed, but the injury to the neck is. Therefore, the second report is properly admissible as a forensic medical report and Dr Le Leu’s evidence in that report is entitled to be weighed against the other evidence in the case. The fact that Dr Le Leu did not examine Mr Purdon does not make the report inadmissible, but only goes to weight, which is considered at [79] below. The report did no more than respond to the issues dealt with by Dr Ellis. In the circumstances, the respondent was entitled to rely on that report. If the worker felt prejudiced by it he did not say so and did not seek an adjournment to obtain additional evidence to meet it.
Section 74 notice
Mr William Purdon argues that he was “ambushed” by the late service of the section 74 notice. He said that the insurer was on notice about the neck since 2007 and did not dispute it. Therefore, when the worker filed his Application he was entitled to assume that liability was not contested. When asked whether he objected to the respondent relying on the section 74 notice, Mr William Purdon said that he did not (T10.29 of the appeal transcript). Nor did he point to any prejudice he suffered by the late notice.
Ms Wood argues that the worker never claimed to have injured his neck in the incident on 5 May 2005 until he served his Application of 16 January 2009 and that there was nothing in the letter of 30 August 2007 to suggest that the worker relied on any injury other than his back injury. The issue came up at the teleconference on 24 February 2009 when the respondent’s solicitor asked for clarification of the claim. Both Mr William Purdon and Ms Swinney, the solicitor who represented the respondent at the teleconference, have filed statements setting out their recollections of the matters discussed at the teleconference.
Mr William Purdon’s statement is incomplete on the critical issue of the nature of the injury alleged. Ms Swinney’s note is that the worker said “injury to neck – same day as back” and that, as a result, she needed leave to file and serve evidence in relation to the alleged neck injury. She filed that evidence in an Application to Admit Late Documents filed on 31 March 2009, to which she attached, among other documents, the claim form in which the worker said he injured his back but made no mention of his neck. Ms Swinney’s note is consistent with Ms Wood’s submission at T9.54 at the arbitration where she said that nature of the alleged injury was resolved at the teleconference.
Regardless of what was said at the teleconference, Mr William Purdon did not object, either at the arbitration or at the appeal, to the respondent relying on the section 74 notice. Nevertheless, out of deference to Mr William Purdon and his submission that he was “ambushed”; it is appropriate that I deal with the issue of the late section 74 notice.
Whilst there is some merit in Mr William Purdon’s submission that the insurer should have been on notice about the nature of the neck claim since the service of Dr Ellis’ report in August 2007, and though I accept that the insurer’s conduct has been most dilatory in the preparation of its defence, for the following reasons, I am satisfied that it is in the interests of justice (section 289A(4) of the 1998 Act) to allow the respondent to dispute liability for the neck claim:
(a) the allegation that the worker injured his neck on 5 May 2005 was not particularised until the Application was served in January 2009;
(b) the worker took no objection to the respondent arguing the issues raised in the late section 74 notice and acknowledged (at the arbitration) that the issue was “the existence of an injury to the cervical spine” (T7.11);
(c) the insurer acted promptly in disputing the matter after the claim for the neck was particularised in the Application;
(d) the worker has pointed to no relevant prejudice;
(e) at the Arbitrator’s invitation (T24.12), Mr William Purdon sought instructions about whether to discontinue the claim (to obtain further evidence) and, after obtaining those instructions, elected to proceed (T25.8), and
(f) the issues raised in the section 74 notice are clearly arguable and are the very issues dealt with in Dr Ellis’ report.
Weight of evidence
It is submitted on behalf of the worker that:
(a) he injured his low back at work on 5 May 2005 and later underwent surgery. Sometime after the surgery he experienced pain and problems with his cervical spine, which he reported to Dr Nijhawan. Dr Langley noted that Mr Purdon’s complaints included aching in his neck. Dr Grant noted Mr Purdon’s spinal movements were all limited;
(b) Dr Ellis states that it is a common clinical finding for upper cervical discs to be strained as a consequence of a lower spinal impairment;
(c) there is no evidence, other than speculation, that Mr Purdon’s injury to his neck was not caused as a result of the accident;
(d) he had no history of any pre-existing medical condition and his surgery did not result in complete relief of his symptoms. The clinical picture is complicated by a psychosocial response to his symptoms. One must accept that the clinical picture has resulted from the episode at work;
(e) the Commission is obliged to act according to equity and good conscience (section 354(3) of the 1998 Act). The supplementary report from Dr Le Leu should be disregarded because he “never examined or investigated or took into account the appellant’s symptoms relating to his cervical spine”. His statements concerning the examinations by Drs Grant and Ellis were based on supposition and infringed Part 15 Rule 15(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’);
(f) Dr Le Leu did not have a copy of Dr Ellis’ report and had not received a brief from the insurance company at the time of his examination;
(g) Dr Le Leu wrongly assumed, based on the medical certificates from Dr Nijhawan not referring to neck symptoms, that Dr Nijhawan had “raised no concerns” about Mr Purdon’s neck. Dr Le Leu wrongly assumed that no x-rays had been taken of Mr Purdon’s neck because “nobody [had] been sufficiently concerned about his neck” when the reason was that Mr Purdon did not have confidence to proceed with the recommendations by Dr Diwan (T14.30-35). Dr Le Leu did not doubt that Mr Purdon has problems with his neck and suggested that they might be the end result of the emotional process;
(h) Dr Le Leu referred to Dr Grant’s report. Dr Grant stated that “One must accept that the clinical picture has resulted from the episode that Mr Purdon describes at work” and that there was no history of any pre-existing medical condition that could contribute to the clinical picture, and
(i) Dr Le Leu did not doubt that Mr Purdon has problems with his neck. If that condition is the result of his psychological development, one must accept that the clinical picture has resulted from the episode at work.
I do not accept the above arguments. It is not disputed that Mr Purdon injured his low back on 5 May 2005 and that the surgery he had in July 2005 was a direct and necessary consequence of that injury. Whilst there is no report from the treating surgeon, I accept that the surgery did not completely relieve Mr Purdon’s low back pain. Notwithstanding some confusion at the teleconference and, apparently, at the arbitration, there is now no issue that Mr Purdon did not injure his neck on 5 May 2005. Nor is there any issue that he developed symptoms in his neck several months after his back surgery, though the exact date is unclear.
The issue in dispute is whether Mr Purdon’s neck symptoms have resulted from his back injury and subsequent treatment for that injury. I accept Mr Purdon’s evidence in his statement of 15 February 2009 that he spoke to Dr Nijhawan on a number of occasions about symptoms in his upper body. The evidence does not, however, disclose when those consultations took place or what diagnosis Dr Nijhawan made, if any.
The fact that Dr Grant noted Mr Purdon’s spinal movements were limited does not assist in resolving the issues before me. Even if that finding related to Mr Purdon’s neck, which is far from clear, that does not determine when the neck symptoms commenced or whether those symptoms have resulted from the proven low back injury.
Mr Purdon’s case depends on Dr Ellis’ evidence, set out at [38] above. Dr Ellis links the neck symptoms to the low back problem because of spasm, loss of alignment and altered weight balance at the lower lumbar spine. Dr Ellis’ findings on examination, however, do not support his conclusion. His findings make no reference to Mr Purdon having spasm in his low back or an altered weight balance at the lower lumbar spine. The doctor specifically noted at page two of his report that the alignment of Mr Purdon’s back was normal. There is no other evidence that the worker experienced spasm, loss of alignment or altered weight balance as a consequence of his back injury. I therefore do not accept Dr Ellis’ conclusion as to the connection between Mr Purdon’s neck symptoms and his low back injury.
Whilst it may be a “common finding” for upper cervical discs to be “strained” as a consequence of a lower spinal impairment, there is no radiological evidence of any cervical disc pathology or disc strain in the present case. There is no proper diagnosis for Mr Purdon’s neck symptoms and, though it is not determinative, the lack of a diagnosis further undermines the present claim.
The submission that there is no evidence, other than speculation, that Mr Purdon’s injury to his neck was not caused as a result of the accident on 5 May 2005 ignores that fact that the onus of proof rests with the worker. The fact that there is no evidence of any pre-existing medical condition is not determinative. Mr Purdon carries the onus of proof and, even if Dr Le Leu’s evidence had been excluded, he has not discharged that onus.
The submission that the clinical picture is complicated by a psychosocial response to his symptoms does not advance Mr Purdon’s case. He has never presented a case that his neck symptoms have resulted from a work related psychological condition. This submission is untenable and unsupported by any persuasive expert medical evidence.
I do not accept that Dr Le Leu’s supplementary report should be disregarded on the ground that he did not examine the worker’s neck. I accept that Mr Purdon complains of neck pain. It is the cause of those symptoms that is in issue. Dr Le Leu’s opinion is based on his examination of the documents sent to him by CGU, including Dr Ellis’ report, and an acceptance of the history in those documents. Those histories provided a fair climate for the acceptance of Dr Le Leu’s expert opinion. Because of the delay in the onset of neck symptoms, the lack of diagnosis about the neck condition, and the lack of any reliable explanation by Dr Ellis about the connection between the neck symptoms and the back injury, I agree with Dr Le Leu’s opinion that the suggested connection between the neck symptoms and the low back injury is speculative and tenuous and that it is “far more probable than not that the neck problem, whatever its nature, is unrelated to the subject incident.”
The evidence does not establish that Dr Le Leu wrongly assumed that Dr Nijhawan had “raised no concerns” about Mr Purdon’s neck. Dr Le Leu’s reference to Dr Nijhawan’s medical certificates is accurate. There is no reference to neck symptoms in Dr Nijhawan’s medical certificates. The worker may well have spoken to Dr Nijhawan on a number of occasions about symptoms in his upper body, but that does not establish a connection between those symptoms and the low back injury. Dr Le Leu is correct to state that no x-rays have been taken of Mr Purdon’s neck. Mr Purdon’s evidence at T14.30 relates to why he did not pursue treatment recommended by Dr Diwan, but makes no reference to neck x-rays.
It is accepted that the Commission must act according to equity and good conscience. The issue in the present case, however, is one of causation that must be determined on the basis of the expert and lay evidence tendered. Though the reports from Drs Langley and Grant, and Dr Le Leu’s first report, have not been admitted on appeal I have considered Mr William Purdon’s references to them, but only so far as that are said to advance the worker’s claim. Even allowing that latitude, the evidence does not satisfy me that the worker injured his neck on 5 May 2005 or that his neck symptoms have resulted from his low back injury.
The reference to Dr Grant’s opinion, that one must accept that the clinical picture has resulted from the work episode, is clearly a reference to the low back symptoms and does not advance Mr Purdon’s claim in relation to his neck.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s determination and orders are correct. Mr Purdon did not injure his neck at work on 5 May 2005. In the alternative, his neck or cervical spine symptoms have not resulted from his low back injury.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 28 April 2009 is confirmed.
COSTS
Each party is to pay his or its costs of the appeal.
Bill Roche
Deputy President
13 August 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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