RCR Stelform (VRBT) Pty Ltd v Palmer
[2019] NSWWCCPD 6
•28 February 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | RCR Stelform (VRBT) Pty Ltd v Palmer [2019] NSWWCCPD 6 | |
| APPELLANT: | RCR Stelform (VRBT) Pty Ltd | |
| RESPONDENT: | Gryffydd Douglas Palmer | |
| INSURER: | AAI Limited trading as GIO – Agent for the Workers Compensation Nominal Insurer | |
| FILE NUMBER: | A1-1275/18 | |
| ARBITRATOR: | Ms R Homan | |
| DATE OF ARBITRATOR’S DECISION: | 30 August 2018 | |
| DATE OF APPEAL DECISION: | 28 February 2019 | |
| SUBJECT MATTER OF DECISION: | Principles relevant to raising a new issue on appeal – application of Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68; whether the evidence was inconsistent with the accepted facts; alleged failure to give adequate reasons; whether actual earnings are an accurate reflection of the ability to earn – application of Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20; consideration of objective evidence when witness evidence unreliable; Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Gair Legal |
| Respondent: | Turner Freeman Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determinations at paragraphs 1, 2 and 3 of the Certificate of Determination are confirmed. 2. The Arbitrator’s orders at paragraphs 1(b) and 1(c) are revoked and in their place the following orders are made: (b) From 1 April 2012 to 30 May 2012 at the rate of $849.39 per week; (c) From 31 May 2012 to 31 December 2012 at the following rates: (i) $432.50 per week from 31 May 2012 to 30 September 2012, and (ii) $439.50 per week from 1 October 2012 to 31 December 2012. 3. The remaining orders are confirmed. | |
INTRODUCTION
Mr Gryffydd Douglas Palmer suffered injury to his back in the course of his employment as a boilermaker with RCR Stelform (VRBT) Pty Ltd (RCR) on 26 September 2011. The injury occurred while he was lifting and stacking two metal plates, each weighing approximately 2 kilograms. The injury was reported and he was taken to the Brook Medical Centre in Muswellbrook where he was seen by Dr Mary Ann Munoz, general practitioner.
Mr Palmer lodged a claim for compensation on 13 February 2012. He claimed weekly payments of compensation pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) as in force prior to its amendment by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments) (the former s 36). He also claimed treatment expenses pursuant to s 60 of the 1987 Act, which included surgery to his lumbar spine on 17 December 2011 and revision surgery on 13 January 2012.
Liability was declined by RCR on the basis that the back injury suffered on 26 September 2011 did not involve the lumbar spine, and the need for surgery did not result from the injury.
In these proceedings (commenced on 12 March 2018), Mr Palmer pressed a continuing claim for weekly payments and treatment expenses (including further surgery on 20 June 2013), and he also sought compensation in respect of 16% whole person impairment (WPI) pursuant to s 66 of the 1987 Act.
The Arbitrator found in favour of Mr Palmer. She awarded weekly payments of compensation until 29 May 2014, found the surgery was reasonably necessary as a result of the injury, and remitted the matter to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment (WPI) of the lumbar spine.
RCR appeals the decision.
BACKGROUND
Mr Palmer was certified fit for pre-injury duties on 30 September 2011 by the same doctor he saw on the day of injury. He returned to work. Mr Palmer resigned his employment on 7 October 2011 as he had obtained work elsewhere as a boilermaker/leading hand.
On 5 December 2011, Mr Palmer consulted his own general practitioner, Dr Adam Geschwind. Dr Geschwind referred him to Dr Davor Saravanja, orthopaedic surgeon, who performed a discectomy at the L4/5 level of the lumbar spine, as well as the two revision surgeries on 13 January 2012 and 20 June 2013.
The matter before the Arbitrator essentially turned on the various histories recorded by the medical practitioners and Mr Palmer’s oral and written statement evidence.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have made submissions on the appeal grounds. Both parties concede that the matter can be determined ‘on the papers’.
I have had regard to Practice Directions Nos 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The appeal was filed within 28 days as prescribed by s 352(4). The amount in issue on the appeal clearly exceeds the $5,000.00 threshold and is at least 20% of the amount awarded.
THE EVIDENCE
Mr Palmer’s evidence
Mr Palmer relied on five written statements and also gave oral evidence during the arbitration.
In his first statement, signed and dated 20 February 2012,[1] Mr Palmer said he completed year 10 at school and then completed the trade qualifications as a boilermaker. He obtained employment in the industry with various companies, and first commenced with RCR during September and October 2010. He was then re-employed on or about 17 September 2011 performing “shutdown” work at the Liddell Power Station. He said he passed a pre-employment medical and had no pre-existing injury or health issues.
[1] Application to Resolve a Dispute (ARD), pp 67–70.
Mr Palmer described the duties he was required to perform on 26 September 2011. He said he was required to cut and stack metal plates weighing no more than 2 kilograms each and he stacked them two at a time. The job involved lifting, bending and stretching. He said that when lifting two of the plates, his whole back seized. His back was very painful and he had difficulty moving.
Mr Palmer stated he reported the injury, and an injury report was completed. The safety officer drove him to Muswellbrook Medical Centre, where he was examined and x-rayed. He was prescribed medication and returned to work on suitable duties, taking anti-inflammatories.
Mr Palmer said that his pain reached a manageable level after a week, and following review by the Muswellbrook Medical Centre, he was cleared to return to full duties. He performed his pre-injury duties with the assistance of medication. He said the pain was present but not as bad as it was at the time of onset.
Mr Palmer advised that he ceased employment with RCR on Friday 7 October 2011 and commenced with Transfield Services Australia Pty Ltd (Transfield) on 10 October 2011. He described the duties there as being on standby to help the crane crew, which did not involve any lifting. He worked there on a casual basis for four or five weeks. He then obtained employment as a boilermaker/leading hand with Chandler MacLeod Group Ltd (Chandler MacLeod). He said because he was a leading hand, he was not required to perform boilermaker’s duties. He stated, however, that he was still experiencing a lot of pain and was quite restricted in movement.
As a result of continuing pain, Mr Palmer stated that he attended a chiropractor in Bondi and underwent further x-rays. He then attended his usual general practitioner, Dr Geschwind, who referred him to Dr Saravanja. Mr Palmer indicated that at this time, he had very limited movement of his left leg. Dr Saravanja arranged for an MRI scan of his back, which disclosed a ruptured disc. After a cortisone injection failed to relieve the pain, Dr Saravanja performed surgery for the ruptured disc. During the recovery period, in an incident at home while arising from a sofa, Mr Palmer said that he ruptured the disc again, and underwent revision surgery.
Mr Palmer said he had not worked since about 1 December 2011. He indicated he was feeling a lot better but still had restrictions in movement.
In a supplementary statement dated 11 November 2013,[2] Mr Palmer confirmed that he underwent further surgery on 13 January 2012. He disclosed that he had returned to work doing light labouring duties and painting for a company called Worthwhile Recruiting from April 201[2]. In that position, he was able to avoid heavy lifting, excessive bending and standing for long periods.
[2] ARD, pp 71–72.
Mr Palmer said that in around July 2012 he set up a company called the Humble Berry Pty Ltd, in which he was the sole director and shareholder. There were no employees. The business was involved in distributing berries to various food and drink outlets. He said he was not involved in any heavy work, and he was able to perform the duties despite his back injury. The company was yet to make a profit.
Mr Palmer denied ever having any pain, injuries or difficulties with his back prior to 26 September 2011, and asserted that he lived a very active lifestyle up to that point. He further asserted that the injury on 26 September 2011 was the only back injury he had ever suffered.
Mr Palmer advised he underwent further revision surgery at the hands of Dr Saravanja on 20 June 2013 and continues to consult Dr Geschwind and Dr Saravanja.
Mr Palmer explained that after his first consultation with Dr Munoz, he was hopeful that his back would recover. He asserted that he did not complain about his back because it would have affected his ability to obtain work. Eventually, he said he was in unbearable pain, which prompted him to seek treatment. He attended a chiropractor on 21 November 2011 and Dr Geschwind on 5 December 2011. He was then referred to Dr Saravanja.
Mr Palmer contended that he did not advise the doctors he had suffered a work injury because from his experience, employers were highly unlikely to employ boilermakers who had sustained work injuries. Additionally, he did not initially appreciate the seriousness of his back condition.
Mr Palmer asserted that the reason he informed the doctors that he had been experiencing pain for eight months was because his mother, a registered nurse, advised him he would receive treatment more quickly if his back pain had been present for a long time.
Mr Palmer described the first consultation with Dr Munoz. He alleged that he advised Dr Munoz that the pain was in his lower back, on the left side, and that he indicated to her with his left hand that it was on the left of his belt line, radiating into the hips. He said the consultation lasted not much longer than 5 minutes, she did not ask him to take off his trousers, and only examined his back above the belt line by lifting his shirt. He said he did not understand her very well.
Mr Palmer confirmed that he continued to be unable to perform any work involving lifting, excessive bending, reaching, kneeling, crouching or stretching, or standing or sitting for long periods.
Mr Palmer signed a further statement dated 13 July 2016.[3]
[3] ARD, pp 73–75.
Mr Palmer provided updated information of his employment activities. He advised that the business distributing berries did not prove to be very profitable, so he set up a new business under the name of Heritage Steel Frame Windows in or around February 2014. The business name was a trading name owned by The Humble Berry Pty Ltd. Mr Palmer’s services were subcontracted through that business to Palmer Architectural Steel Works Pty Ltd, a company owned by Mr Palmer’s father. The company owned by Mr Palmer’s father also dealt with a third company, and the profits from each job were split evenly between the three companies. Mr Palmer’s role was to do quotes, develop health and safety policies, invoicing, supervising and occasionally painting and scraping. He said he drew a wage of $67,000 gross per annum from his company, and had no other source of income, but he did perform some of that work directly for his father’s business before he set up his own business in February 2014. Mr Palmer said there was no heavy lifting and the work was suitable for him.
Mr Palmer advised that as he had moved to a new neighbourhood, he had changed his general practitioner and was managing his symptoms with pain medication, exercise and avoiding aggravating activities. He listed his ongoing difficulties.
Mr Palmer provided another further statement dated 11 May 2018.[4] He confirmed that his employment status, treatment regime and disabilities remained largely as described in his statement dated 13 July 2016.
[4] Mr Palmer’s Application to Admit Late documents (AAALD) dated 15 May 2018.
Mr Palmer provided details of his annual income from his company as follows:
(a) 2014 financial year – $31,500.00;
(b) 2015 financial year – $63,344.00;
(c) 2016 financial year – $60,134.00, and
(d) 2017 financial year – $50,344.00.
He also advised that in late 2011 he was injured while working for Transfield, when a steel plate fell and hit his foot. He described that injury as minor.
At the direction of the Arbitrator made on 12 June 2018, Mr Palmer filed a statement dated 29 June 2018,[5] which was in response to a request for further particulars by RCR dated 15 June 2018.
[5] AAALD dated 3 July 2018.
In that statement, Mr Palmer provided the following further relevant evidence:
(a) When he consulted Dr Saravanja on 5 December 2011, he referred to the 26 September 2011 injury as an exacerbation, but it was in fact the first back injury that he had sustained.
(b) At that consultation, he informed Dr Saravanja that he had been unable to participate in gym and other activities for over a month, when in fact he had not done so since September 2011.
(c) He and his wife travelled to the United Kingdom and Ireland for three weeks from around 24 August 2011.
(d) His accountant had informed him that the entry in the taxation return for the financial year ending 2014, the amount of $37,915.00 for payments to “associated persons” referred to his salary of $34,900 plus his superannuation payment. Further, he was the only person to receive financial benefit from The Humble Berry Pty Ltd.
(e) At the pre-employment examination arranged by Transfield, he was unable to bend to touch his toes and told the doctor that it was because he had strained his back at the gym on the previous day. Mr Palmer explained that, in his experience, if he disclosed he had suffered a work injury, he was unlikely to be offered employment. It was for the same reason that at the pre-employment assessment with Chandler MacLeod, he advised the doctor that his back condition was an old rugby injury.
Mr Palmer also gave oral evidence at the arbitration and was cross-examined. He said that the reference to “dull aching pain down the leg” in the Impulse Health Chiropractic notes was a reference to left leg pain, and the injury referred to as occurring earlier in the year was a reference to the injury on 26 September 2011.
Mr Palmer denied that:
(a) he told the chiropractor he had experienced left leg cramping earlier;
(b) he told the chiropractor that he had a disc bulge five years ago which was treated with physiotherapy and improved after six months;
(c) he had a disc bulge five years ago;
(d) the handwriting on the note was his own, and
(e) there was a delay between the injury and the subsequent leg pain, first recorded in November 2011.
Mr Palmer said he could not give an explanation as to why the note was taken.
Mr Palmer explained that he told the doctors there was an eight month history of pain on the advice of his mother in order to get proper treatment. He said he was not the most articulate person.
Mr Palmer asserted that he complained to Dr Munoz on the day of injury that he had left leg pain. He thought that the leg pain came on later on the day of injury.
He conceded that he did perform pre-injury duties for a week after he suffered the injury, but he did not feel fit. He said his back had worsened after the injury and continued to hurt before he commenced at Transfield, but he did not tell anyone other than his wife. When asked why he ceased work with Transfield, he said it may have been because he had other employment. When asked to describe the work he did at Transfield, Mr Palmer asserted that he walked from the sheds to the site.
The remaining oral evidence given by Mr Palmer reiterated some of his statement evidence.
Mrs Estelle Palmer
Mrs Estelle Palmer, Mr Palmer’s mother, provided a signed letter directed to Mr Palmer’s legal representatives. The letter was dated 16 July 2012, but was signed on 24 October 2013.[6]
[6] ARD, p 79.
Mrs Palmer said that she was a registered nurse working as a nursing unit manager and had been in the medical profession for more than 30 years.
Mrs Palmer said that she was aware that Mr Palmer had consulted a chiropractor for back pain which he had experienced for several weeks before consulting his general practitioner. She advised that Mr Palmer had never experienced back pain prior to 26 September 2011.
Mrs Palmer explained that it was at her suggestion that Mr Palmer sought a referral to a specialist, and she further suggested that he tell the doctors that he had been experiencing back pain for 6 to 8 months. She indicated that in her experience, there were usually long delays in securing specialist appointments and that her son’s complaints would be treated more seriously if there was a longer history of pain. Mrs Palmer indicated that she regretted giving that advice, but at the time Mr Palmer had no intention of pursuing a workers compensation claim.
Mrs Palmer also provided a signed statement dated 13 July 2016.[7]
[7] ARD, pp 80–81.
Mrs Palmer said that Mr Palmer had been a very active sportsman prior to the injury on 26 September 2011. She said he regularly participated in surfing, swimming, running and attended the gymnasium. Mrs Palmer recollected that the only surgery Mr Palmer had ever undergone was an appendectomy and other than possible injury to the nasal bones, had never experienced any fractures.
Mrs Palmer advised that Mr Palmer rang her a few days after his back injury and told her he had injured his low back, had attended a general practitioner, undergone x-rays and returned to work. She asserted that if she had seen the x-rays at that time, she would have urged Mr Palmer to seek a specialist referral.
Mrs Palmer said that when Mr Palmer returned from the Hunter Valley, she saw him regularly. She noticed he was very stiff while walking, uncomfortable when sitting for long periods and when rising from a seated position, he would do so gingerly. She said that she understood that he was on medication and receiving treatment.
Mrs Palmer stated that she began to worry that Mr Palmer’s symptoms were not improving, and that he showed her an x-ray that had apparently been arranged by a chiropractor in November 2011. Mrs Palmer said that she became angry that Mr Palmer had only sought treatment from a chiropractor. She arranged for him to see Dr Geschwind and be referred to Dr Saravanja, with whom she had already discussed Mr Palmer’s condition.
Ms Lauren Palmer
Ms Lauren Palmer, Mr Palmer’s wife, also provided two letters directed to Mr Palmer’s legal representatives.
In the letter dated 14 July 2012,[8] Ms Palmer indicated that before Mr Palmer was injured, she and Mr Palmer were very active. She said that together they jogged a distance of between three and eight kilometres, three or four times per week. They surfed together, went to the gym and took long walks. Ms Palmer gave examples of their active lifestyle, which included camping in April 2011, and running in the City to Surf in August 2011. She described their activities while on a trip to the United Kingdom at the end of August 2011, including Irish dancing, climbing St Paul’s cathedral and cycling on a tuk tuk bike.
[8] ARD, p 76.
Ms Palmer asserted that Mr Palmer had no problems with his back prior to 26 September 2011. She described the impact the injury had on their lives.
In her second letter to Mr Palmer’s legal representatives dated 11 January 2015,[9] Ms Palmer confirmed the active lifestyle she and Mr Palmer had pursued since they met in 2008. She provided further examples of those activities. She further confirmed the impact the injury had on their lives.
[9] ARD, pp 77–78.
Ms Palmer stated that Mr Palmer rang her and told her about his back injury. She said he told her that his boss had taken him to a doctor, who arranged x-rays. Mr Palmer said to her that the doctor’s English was poor, and he thought she had difficulty understanding him. Ms Palmer said Mr Palmer told her he was resting in his motel, using a heat pack and pain killers, and was in considerable pain. She said he returned to Sydney the following day.
Ms Palmer reported that over the following weeks, Mr Palmer was in continuing pain. He was unable to do very much, including sitting, and laid on the floor or couch when watching television. He was unable to attend a number of social functions.
Ms Palmer said Mr Palmer applied for a couple of jobs he felt were not too physical, and that he was concerned that he would not pass the medical because of his back pain, for which he continued to take strong anti-inflammatory medication.
Ms Palmer stated that after two months, she arranged for Mr Palmer to attend a chiropractor, who he saw three times. She said by that time Mr Palmer was complaining of pain and numbness spreading down his legs. Ms Palmer said that while at dinner with Mr Palmer’s parents, Mr Palmer’s mother became annoyed that he had not consulted a doctor, and arranged for Mr Palmer to consult a general practitioner the next day in order to obtain a referral to a back specialist Mrs Palmer had worked with.
Mr Palmer’s other documentary evidence
An incident investigation form bearing RCR’s logo was in evidence.[10] The document recorded that Mr Palmer reported an incident while lifting a plate from a trolley when he felt a “pop” in his lower back, his back locked up and he felt a “big shot of pain up his entire back.” The incident was noted to have occurred on 26 September 2011 and reported on that day.
[10] ARD, pp 82–85.
Mr Palmer also relied on a number of employer health assessment records. A Pre-Employment Health Assessment performed by “Health For Industry” and dated 27 April 2009 noted Mr Palmer’s back to be normal and found Mr Palmer fit to perform boilermaker’s duties.[11] In a “Pre-placement work suitability screening summary” performed on behalf of RCR on 11 October 2010, Mr Palmer was found to have no physical limitations and had good flexibility. It specifically recorded Mr Palmer had not had a back injury or back limitations.[12] In a further medical assessment conducted on 24 August 2011,[13] no previous back problems were disclosed, Mr Palmer’s back was found normal on examination and Mr Palmer was declared fit for duties as a boilermaker.
[11] ARD, pp 86–92.
[12] ARD, pp 99–104.
[13] ARD, pp 105–112.
Mr Palmer also filed individual taxation returns, relevantly for the financial years ending 2012, 2013 and 2014,[14] and company taxation returns for The Humble Berry Pty Ltd for the financial years ending 2013 and 2014.
[14] ARD, pp 136–161.
Mr Palmer’s individual taxation return recorded his total income for the 2012 year of $51,001, of which $23,430 was income derived after cessation of employment with RCR and $14,376 was received from GIO General Ltd. His total income for the financial year ending 2013 was $14,293. His income for the financial year ending 2014 (including director’s fees, dividends and supplementary income) was $40,891, of which $31,500 was income derived from The Humble Berry Pty Ltd.
The company’s taxation return for the 2013 financial year disclosed a total income of $3,042 and a taxable income of $2,321.[15] The 2014 return disclosed gross income of $104,700, with a net income of $28,147. Entries in the 2014 return listed total salary and wage expenses to be $34,900 and $37,915 as payments to “associated persons”.[16]
[15] ARD, pp 217–228.
[16] ARD, pp 229–241.
Mr Palmer included a wages schedule in the ARD.[17] For the period prior to 31 December 2012, he asserted comparable/probable earnings of $1,114.62, and actual earnings as follows:
(a) nil actual earnings from 1 December 2011 to 31 March 2011;
(b) $265.23 per week from 1 April 2012 to 30 June 2012, and
(c) $274.87 per week from 1 July 2012 to 31 December 2012.
[17] ARD, pp 5–6.
For the period from 1 January 2013, Mr Palmer alleged his pre-injury average weekly earnings to be the same as his comparable earnings for the previous period, that is $1,114.62. He alleged his current weekly earnings/ability to earn was $274.87 per week from 1 January 2013 to 30 June 2013. Mr Palmer provided further figures for later years, however as the parties agreed that at that time, the Commission’s jurisdiction to award weekly payments was limited to 29 May 2014, the details of those figures are not reproduced.
The medical evidence
The clinical progress notes of Dr Mary Ann Munoz, general practitioner, dated 26 September 2011 and 30 September 2011 were in evidence.[18]
[18] ARD, pp 56–57.
The entry dated 26 September 2011 recorded that Mr Palmer presented with back pain following a twisting and lifting injury at work. Mr Palmer heard a “pop” sound, pain developed and he was unable to move. On examination, Dr Munoz recorded “Tender with some inflammation on T12, L1/2 level”. The treatment plan included an x-ray of the thoracolumbar spine, pain medication and heat packs, referral to a physiotherapist and a WorkCover medical certificate.
In the same entry, Dr Munoz wrote that the reason for contact was in respect of low back pain and requested an x-ray of the lumbosacral spine. The lumbosacral spine x-ray was performed on the same day.[19]
[19] Diagnostic imaging report dated 26 September 2011; ARD, p 58.
At the consultation on 30 September 2011, Dr Munoz recorded that Mr Palmer felt much better, and the doctor cleared him for pre-injury duties.
The two WorkCover certificates completed by Dr Munoz on 26 and 30 September 2011 referred to a diagnosis of strained thoraco-lumbar spine.[20]
[20] ARD, pp 62–63.
On 3 April 2012, Dr Munoz provided a written response to questions posed by the workers compensation insurer.[21] Dr Munoz stated that the physical examination of Mr Palmer performed on 26 September 2011 was not consistent with an injury to the back at the L4/5 level, and the tenderness was at T12 and L1/2 levels. She wrote that there was no pain radiating to the hips and knees at that point.
[21] ARD, pp 60–61.
On 3 March 2015, Dr Munoz provided a further report, on this occasion directed to Mr Palmer’s legal representatives.[22] In that report, Dr Munoz said that Mr Palmer had presented on 26 September 2011 with low back pain, the x-ray was unremarkable except for slight scoliosis, and she described the pain as non-specific, vague low back pain, mechanical in nature.
[22] ARD, p 55.
The clinical notes from Impulse Health Chiropractic were also in evidence.[23] The notes disclosed that Mr Palmer attended for treatment on 21 November 2011, 29 November 2011 and again in early December 2011. The case history recorded:
“moderate low back pain, dull aching pain down the leg. Developed early in the year following heavy lifting at work. Cramping like pain in the left leg down to the ankle … Had a disc bulge 5 years ago treated with physiotherapy improved after six months.”[24]
[23] ARD, pp 64–66.
[24] ARD, p 64.
Dr Geschwind provided a report dated 3 August 2012, which included a reproduction of his relevant clinical notes.[25] Dr Geschwind said that Mr Palmer first consulted him in relation to back pain on 5 December 2011. At that consultation, Mr Palmer gave a history of back problems for about eight months and did not mention a work injury. Dr Geschwind concluded that Mr Palmer’s employment was a substantial contributing factor to his “initial” injury and subsequent worsening condition, and that Mr Palmer was not fit for heavy manual labour or heavy lifting.
[25] ARD, pp 19–22.
At the request of Mr Palmer’s legal representatives, Dr Geschwind provided a further report dated 3 February 2014 in which he pointed out the inconsistencies in Dr Munoz’s clinical records and confirmed his opinion that “on the balance of probabilities … the back injury that I treated from 5th of December 2011 was substantially contributed to by his accident on the 26th September 2011.”[26]
[26] ARD, p 49.
The consultation notes made on 5 December 2011 referred to back pain with radiation to the left leg. The next entry in the clinical notes was on 1 February 2012 and contained the history that Mr Palmer had back pain on and off for eight months, but on 26 September 2011 he was lifting steel and twisting at RCR when he suffered much greater back pain.
Dr Saravanja provided two medical reports directed to Mr Palmer’s legal representatives and numerous reports to Dr Geschwind detailing the treatment given and planned.
In the first report directed to Mr Palmer’s legal representatives and dated 7 November 2012,[27] Dr Saravanja wrote that Mr Palmer provided the history of low back pain that he had been experiencing for about eight months, which had not settled after a recent aggravation. The symptoms he recorded were of low back and left buttock pain accompanied by searing radicular pain into the buttock and down the left leg to the foot. Dr Saravanja reported that Mr Palmer’s pain was worse after a trip to the United Kingdom six weeks earlier, and he had been unable to participate in sporting activities for over a month. Dr Saravanja said that he distinctly recalled Mr Palmer mentioning that he had a work injury, but that Mr Palmer did not want to pursue a claim. Dr Saravanja confirmed that the work injury was not recorded in his notes or letters.
[27] ARD, pp 50–52.
Dr Saravanja opined that if Mr Palmer suffered a twisting or loading injury at work, that mechanism is well known to cause herniation of the nucleus pulposus material from an intervertebral disc.
In the subsequent report directed to Mr Palmer’s legal representatives dated 4 August 2015,[28] Dr Saravanja reviewed the statements of Mr Palmer, Mrs Palmer and Ms Palmer, the RCR incident investigation form and Dr Munoz’s file. He concluded that Mr Palmer’s work-related accident was the contributory cause of the disc herniation at L4/5 and subsequent left leg sciatic pain. He opined that the “lifting injury resulted in an annular tear at the L4/5 disc, which weakened the segment and subsequently lead to the herniated fragment causing the neurological compression.”
[28] ARD, p 54.
Mr Palmer relied on four medico-legal reports provided by Dr James Bodel, orthopaedic surgeon.
In his first report dated 31 January 2014,[29] Dr Bodel took the history that on 26 September 2011, Mr Palmer twisted and reached to put the plates he was cutting into the boiler, when he felt a sudden left sided low back pain and left leg pain down to the ankle. He had to stop work immediately, consulted a doctor and was prescribed Panadeine Forte, Voltaren and use of heat packs. Dr Bodel recorded that Mr Palmer improved but never completely recovered.
[29] ARD, pp 1–6.
Dr Bodel took the further history that Mr Palmer obtained post injury employment with Transfield, and the pain worsened with no specific injury or incident. Dr Bodel recorded that the pain further worsened while Mr Palmer undertook subsequent work with Chandler McLeod.
Dr Bodel noted the treatment from the chiropractor, Dr Geschwind and Dr Saravanja, the x‑rays and the MRI scan. He further noted the surgery performed on 17 December 2011, and the subsequent surgery on 13 January 2012 following the event when Mr Palmer was getting up from the couch. Dr Bodel recorded that Mr Palmer described functioning reasonably well for over a year, but the back and left leg remained a little sore. Mr Palmer then, in the middle of 2013, went for a run and suffered severe back pain and left leg pain, for which further surgery was performed by Dr Saravanja.
Dr Bodel recorded that there had been no prior back problems. Mr Palmer explained that he did not lodge a claim until after the second operation because he did not want to blemish his work record.
Dr Bodel opined that there was a direct causal link between the injury on 26 September 2011 and Mr Palmer’s back condition. He assessed Mr Palmer’s WPI to be 16%, and on the basis that in his view there was no pre-existing pathology, made no deduction from the assessment.
Following a request from Mr Palmer’s legal representatives to consider the report of Dr Geschwind dated 3 February 2014, Dr Bodel provided a second report.[30] Dr Bodel was asked to comment upon any inconsistency in the history provided, given liability was declined by RCR because of the inconsistent history recorded by Dr Munoz on 26 September 2011. Dr Bodel said that Dr Geschwind’s report discussed an entry in Dr Munoz’s notes that recorded clinical features of tenderness at the thoracolumbar junction, and confusing references to the need for an x-ray of the thoracolumbar spine but that an x-ray of the lumbosacral spine was actually undertaken. Dr Bodel also noted some further confusion in relation to entries in Dr Munoz’s clinical note that the injury was at the thoracolumbar junction, and in the same note that the injury was at the lumbosacral junction at L4/5. Dr Bodel said that Dr Geschwind’s letter gave no history of what complaints Mr Palmer made at clinical presentation.
[30] ARD, pp 7–8.
Dr Bodel was further asked to comment on the increasing pain levels Mr Palmer experienced after 26 September 2011, in the context of performing what Mr Palmer described as “not overly physical” work. Dr Bodel opined that on the balance of the history and medical evidence provided, there was a causal link between the injury as described to him and Mr Palmer’s ongoing complaints. Dr Bodel said he accepted that the work was not overly heavy, and that Mr Palmer gave no history of other accidents or injuries.
Following further correspondence to Dr Bodel from Mr Palmer’s legal representatives, Dr Bodel reviewed the various radiological investigations taken on 26 September 2011, 29 November 2011 and 24 January 2012.[31]
[31] Dr Bodel’s report dated 2 February 2015; ARD, pp 9–11.
Dr Bodel said that there were changes at the L4/5 level that seemed to have progressed over time from the day of injury until four months later on 24 January 2012. He conceded that there did appear to be a pre-existing abnormality shown on the x-ray dated September 2011.
Dr Bodel repeated the history provided to him but remarked that he was somewhat disadvantaged as he did not examine Mr Palmer until 31 January 2014, Dr Munoz assessed injury at a higher level and there was no mention of sciatica as part of Dr Munoz’s finding. Dr Bodel said however, that he was satisfied that the disc injury did occur in the lumbosacral region, leading to nerve root irritability and subsequent surgery. Dr Bodel opined that there was a slight progression of the pathology over the four months, and it did appear consistent that the injury could have caused an external disc disruption at the L4/5 level which led to the surgery.
Following re-examination of Mr Palmer on 26 September 2016, Dr Bodel provided a report dated 27 September 2016. He took a history that was consistent with the history provided in his earlier reports, and the physical examination of Mr Palmer was also consistent. Dr Bodel noted the reports from the treating doctors, Dr Geschwind and Dr Saravanja. Dr Bodel diagnosed recurrent disc ruptures at L4/5 level requiring all three surgeries. He was of the view that Mr Palmer’s prognosis was reasonable, provided he took care with bending and lifting, and permanently modified duties were appropriate. Dr Bodel advised it would be inappropriate for Mr Palmer to return to boilermaking and welding work.
Dr Bodel provided an addendum to the report of 27 September 2016, in which he assessed Mr Palmer’s impairment to be 15% WPI.
Associate Professor Paul Miniter, orthopaedic surgeon, conducted an examination and provided three reports at the request of RCR’s workers compensation insurer.
In his report dated 28 May 2012,[32] Associate Professor Miniter recorded the history that Mr Palmer had suffered an onset of low back pain and left leg pain while loading steel plates on 26 September 2011. Associate Professor Miniter noted that Mr Palmer had competed in the City to Surf run prior to the injury. Associate Professor Miniter detailed the treatment and progress thereafter, noting that an MRI scan was performed on 6 December 2011, which he had viewed. He observed that the MRI scan demonstrated what appeared to be a long standing L4/5 disc lesion, with protrusion of the disc to the left-hand side and compressing the left L5 nerve root.
[32] Reply to Application to Resolve a Dispute (Reply), pp 1–6.
Associate Professor Miniter was of the opinion that, despite the subsequent employment and the trip to the United Kingdom, employment was a “significant” contributing factor. He felt it was likely that there was pre-existing pathology in the area of the L4/5 disc, but that it was “definitely possible” that the injury occurred as stated.
In an addendum to that report, Associate Professor Miniter reviewed the history recorded by Dr Munoz, as reported to him. He commented that the history of thoracic spinal discomfort and absence of discomfort in Mr Palmer’s leg was at odds with the history provided to him. Associate Professor Miniter formed the view that if Mr Palmer had sustained a disc prolapse with left L5 nerve root compression in the injury on 26 September 2011, then it would have been impossible for him to have continued with heavy work. On that basis, it was unlikely that the injury was causative of the lesion and ultimate surgery.
In his subsequent report dated 17 August 2012,[33] Associate Professor Miniter reviewed Dr Munoz’s report dated 11 April 2012 and confirmed the significant disparity between the history provided to him and the “objective” information provided by Dr Munoz. On the basis that the history provided to him was erroneous, Associate Professor Miniter revised his earlier opinion that work injury was causative of the lesion leading to surgery.
[33] Reply pp 7–8.
In a third report dated 22 May 2018,[34] Associate Professor Miniter reviewed the evidence of the treating practitioners and formed the view that there was sufficient evidence to establish that Mr Palmer’s issue was longstanding. He said it was unlikely that the employment was a “primary” contributing factor. He observed that both Dr Saravanja and Dr Geschwind did not mention a work-related injury, and the history provided to Dr Bodel was erroneous. Associate Professor Miniter assessed Mr Palmer’s impairment as 13% WPI, which, in his opinion, was totally unrelated to work.
[34] RCR’s Application to Admit Late Documents dated 4 June 2016 (RAALD), pp 315–320.
RCR’s documentary evidence
Mr Paul Saville, the Occupational Health and Safety Officer for RCR provided a statement dated 27 February 2012.[35] He confirmed that Mr Palmer was required, as part of his duties, to lift steel plates weighing four kilograms. He said Mr Palmer was examined and treated by Dr Munoz, and he returned to normal duties on 1 October 2011. He said Mr Palmer resigned on 6 October 2011, advising that he had taken other work.
[35] Reply, pp 26–28.
Ms Kellie Haegens, who was at the time arranging terminations of employment within RCR, on 15 February 2012 wrote in an email to Mr Saville that she had been told by Mr Palmer that he was resigning because he had another job.[36]
[36] Reply, p 66.
In documents produced by Chandler MacLeod, a notation recording “Candidates Comments” dated 14 December 2011 reported that Mr Palmer was “Going in for back surgery on Friday 16/12/2011. Will not be available for 6 weeks after. Old rugby injury.”[37] A further document of the same date recorded an old back injury, surgery was to take place on 16 December 2011, and it was not work-related.[38]
[37] RAALD, p 8.
[38] RAALD, p 9.
RCR also filed a wages schedule dated 4 June 2018.[39] The document conceded the pre-injury average weekly earnings to be $1,114.62, in accordance with the figure asserted by Mr Palmer. The schedule claimed the weekly amount in dispute to be 95% of the pre-injury average weekly earnings from 1 December 2011 to 1 March 2012 and 80% of the pre-injury average weekly earnings for the remaining period.
[39] RAALD, pp 321–323.
THE ARBITRATOR’S REASONS
The Arbitrator noted that following conciliation, the parties agreed to the following:
(a) Mr Palmer suffered an injury to his back on 26 September 2011;
(b) the Commission’s jurisdiction was limited to an award of weekly payments during the first 130 weeks of entitlement pursuant to ss 36 and 37 of the 1987 Act (Inghams Enterprises Pty Ltd v Sok);[40]
(c) the first 130 weeks expired on 29 May 2014;
(d) Mr Palmer was totally incapacitated from 1 December 2011 to 31 March 2012 pursuant to the former s 36 as it appeared prior to the 2012 amendments of the 1987 Act. Thereafter he was partially incapacitated pursuant to the former s 40 as it appeared prior to the 2012 amendments of the 1987 Act, and from 1 January 2013 had current work capacity pursuant to s 37 of the 1987 Act (as amended by the 2012 amendments), and
(e) Mr Palmer’s pre-injury average weekly earnings figure was $1,114.62
[40] [2014] NSWCA 217; 13 DDCR 139.
The Arbitrator identified that the remaining issues for determination were:
(a) the nature of the injury sustained on 26 September 2011;
(b) whether the surgery performed by Dr Saravanja was reasonably necessary as a result of the injury, and
(c) Mr Palmer’s entitlement to weekly compensation, treatment expenses pursuant to s 60 of the 1987 Act and lump sum compensation pursuant to s 66 of the 1987 Act.
The Arbitrator reviewed and provided a thorough summary of Mr Palmer’s oral evidence and his five written statements. She also recorded in detail the evidence provided by Ms Lauren Palmer (Mr Palmer’s wife) in her letters dated 14 July 2012 and 11 January 2015, and the letter and statement from Mrs Estelle Palmer, Mr Palmer’s mother.
The Arbitrator reviewed the contents of RCR’s incident investigation form, the records of the treating general practitioners and the Impulse Health Chiropractic clinic, the radiological evidence, and the discharge referral from Prince of Wales Hospital dated 13 January 2012.
The Arbitrator extensively reviewed the reports and letters from Dr Saravanja, the reports provided by Dr James Bodel, orthopaedic surgeon dated 31 January 2014, 13 February 2014, 2 February 2015 and 27 September 2016, and Associate Professor Paul Miniter, orthopaedic surgeon dated 28 May 2012, 17 August 2012, and 22 May 2018.
The Arbitrator also detailed the contents of the WorkCover certificates provided by both Dr Munoz and Dr Geschwind, as well as the pre-employment medical assessments undertaken on 27 April 2009, 8 October 2010, 24 August 2011 and 7 October 2011. The Arbitrator noted that in each of those assessments, Mr Palmer denied suffering a previous back injury or prior back symptoms.
The Arbitrator reviewed the remaining evidence relied upon by RCR, which consisted of the statement by Mr Saville, the email from Kellie Haegens to Mr Saville dated 15 February 2012, and the two documents dated 14 December 2011 produced by Chandler MacLeod.
The Arbitrator summarised the submissions made at arbitration by both counsel for RCR and Mr Palmer.
In her reasons, the Arbitrator observed that the determination of the nature of the injury suffered by Mr Palmer was made difficult by the inconsistencies provided by Mr Palmer to his treating practitioners and intended employers. She indicated that although she had considered Mr Palmer’s explanation for giving incorrect histories, Mr Palmer’s willingness to give misleading histories cast doubt on the credibility of his evidence. The Arbitrator considered that in those circumstances it was necessary to evaluate the independent and objective evidence and whether that evidence could be accepted as supportive of Mr Palmer’s case, applying the presidential decision of Keating P in Brines v Westgate Logistics Pty Ltd.[41]
[41] [2008] NSWWCCPD 43 (Brines).
The Arbitrator referred to the contemporaneous incident investigation form that referred to low back pain as a result of twisting and not moving his feet while carrying plates.
The Arbitrator further referred to the internally inconsistent clinical note made by Dr Munoz on the day of injury. She noted that the description of how the injury occurred was “broadly consistent” with Mr Palmer’s evidence, but that Dr Munoz only recorded that there was tenderness and inflammation at the T12 and L1/2 levels of the spine and that an x-ray of the thoraco-lumbar spine should be obtained. This was contradicted, however, by the entry that the reason for the consultation was “low back pain”, the referral for diagnostic imaging requested an x-ray of the lumbosacral spine and such an x-ray was in fact performed that day.
The Arbitrator discussed the report of Dr Munoz dated 11 April 2012 in which the doctor indicated the physical examination of Mr Palmer was not consistent with an injury at the L4/5 level, noting that the report was provided more than six months after the consultation. The Arbitrator observed that there was nothing to indicate that Dr Munoz’s conclusion in the report was based on information other than Dr Munoz’s clinical notes. Further, it was unlikely that with the passage of time, Dr Munoz would have a clear recollection of the examination conducted on the day of injury. The Arbitrator referred to Dr Munoz’s assertion that on the day of injury, Mr Palmer experienced no pain radiating to the hips and knees, and observed that the absence of such symptoms was not recorded in the notes. Also, Dr Munoz did not explain why she requested diagnostic imaging of the lumbosacral spine, or the internal inconsistencies in her notes. Again, the Arbitrator pointed out that Dr Munoz’s report dated 3 March 2015 indicated that Mr Palmer presented on the day of the injury with low back pain.
The Arbitrator acknowledged the danger in placing reliance on clinical notes, quoting from Basten JA in Mason v Demasi.[42]
[42] [2009] NSWCA 227, [2].
On the basis of the confluence of Mr Palmer’s evidence, the incident investigation form and the radiological investigation of the lumbosacral spine on the day of injury, the Arbitrator formed the view that she was satisfied that Mr Palmer suffered injury to his lower back (or lumbar region) in the injury on 26 September 2011.
The Arbitrator referred to Mr Palmer’s assertion that the injury on 26 September 2011 was the first time he had experienced symptoms in the lower back. She observed the inconsistency between that assertion and the histories of complaints that were more long standing which he provided to the chiropractor in November 2011, Dr Geschwind on 5 December 2011, and Dr Saravanja on the same day. It was also inconsistent with information he provided to Chandler MacLeod, and in particular, to Transfield, to whom he denied ever having received a back injury.
The Arbitrator further referred to the history provided to the Impulse Health Chiropractic clinic that Mr Palmer had suffered from a disc bulge five years earlier, which was treated with physiotherapy and improved after six months. On the basis of Mr Palmer having failed to provide an explanation for that entry, the specificity of the history noted, and her overall concerns with Mr Palmer’s evidence, the Arbitrator did not find Mr Palmer’s denial of the history compelling.
In relation to the evidence of Mrs Palmer that she advised Mr Palmer to complain of an eight month history of pain (corroborated by Mr Palmer), the Arbitrator said that, taking into account the severity of his symptoms by December 2011 and the available imaging, it was “not immediately apparent why a six to eight month history of back pain as opposed to a two to three month history of back pain would secure prompter treatment.”[43]
[43] Palmer v RCR Stelform (VBRT) Pty Ltd [2018] NSWWCC 199 (Reasons), [179].
The close relationship between Mr Palmer and his mother was a further factor the Arbitrator considered should be taken into account. Overall, the Arbitrator concluded that she did not find the evidence from Mr Palmer and his mother persuasive.
The Arbitrator accepted that Mr Palmer was an active person prior to the injury on 26 September 2011, that he participated in a variety of sporting activities and undertook strenuous activities while in the United Kingdom in August 2011 (although Dr Saravanja took the history of worsening back symptoms following the trip to the United Kingdom). She further accepted that Mr Palmer participated in the City to Surf in August 2011 and performed strenuous physical work prior to 26 September 2011.
The Arbitrator took into account, but afforded little weight to, the pre-employment medical assessments undertaken in October 2010 and August 2011 where Mr Palmer denied any previous back pain. She reasoned that Mr Palmer had also passed a pre-employment assessment with Transfield despite having suffered the very recent injury on 26 September 2011.
The Arbitrator referred to the opinions of both Dr Bodel and Associate Professor Miniter that the diagnostic imaging revealed a degree of pre-existing pathology at the L4/5 level.
Considering all of the evidence, the Arbitrator concluded that she was not satisfied that Mr Palmer’s lumbar spine was entirely asymptomatic prior to the injury, but she was prepared to accept that those symptoms were not sufficiently severe to interfere with Mr Palmer’s ability to perform physical work and participate in an active lifestyle.
However, taking into account the description in the Incident Investigation Form of a “pop” in the lower back, the back “locking up” and a “big shot of pain”, as well as Dr Munoz’s note that Mr Palmer was unable to move, the Arbitrator accepted that the incident on 26 September 2011 caused an onset of more severe pain.
The Arbitrator referred to the radiological evidence and that Mr Palmer’s symptoms had improved, which led to Mr Palmer returning to suitable duties and performing pre-injury duties for the last week of his employment with RCR. She further referred to Mr Palmer’s oral evidence in respect of the nature of his duties with Transfield. She described that evidence as “vague and unpersuasive”,[44] in comparison to the pre-employment assessment dated 7 October 2011. That document described the prospective position as requiring welding and grinding work. Further, Mr Palmer suffered an injury to his foot in the course of his employment with Transfield when a piece of steel fell on his foot.
[44] Reasons, [186].
The Arbitrator concluded that she was not satisfied that Mr Palmer’s evidence as to the work performed at Transfield was completely truthful, and that it was doubtful that Mr Palmer did in fact suffer ongoing worsening symptoms following the injury, as he had alleged. In the context of the evidence pointing to an improvement of symptoms, the Arbitrator said that, in the circumstances, there was a possibility (as submitted by RCR) that there had been some intervening incident between September 2011 and Mr Palmer’s presentation to the chiropractor and the treating doctors in November and early December 2011.
However, the Arbitrator pointed out that there was no evidence in any of the medical or employment records of any further injury during that period.
The Arbitrator revisited the records from the Impulse Health Chiropractic clinic, the history provided to Dr Bodel and both Mr Palmer’s and Ms Palmer’s evidence in respect of the severity of the complaints, and the explanation from Mr Palmer and his wife as to why he continued to work in pain.
The Arbitrator summarised the medical opinions as to causation. She noted Dr Bodel said that there was a direct causal link between the injury on 26 September 2011 and the symptoms requiring treatment provided by Dr Saravanja. Further, Dr Bodel was of the view that the radiological investigations showed a progression in pathology over time, which was consistent with the injury.
The Arbitrator also said that:
“Dr Saravanja has given a clear and well-reasoned opinion that the incident on 26 September 2011 was ‘the contributory cause’ for the disc herniation at L/5 and subsequently left leg sciatic pain for which he treated Mr Palmer with surgery. Dr Saravanja’s opinion was that the lifting injury resulted in an annular tear at the L4/5 disc which weakened the segment and subsequently led to the herniated fragment, causing the neurological compression.”[45]
[45] Reasons, [195].
The Arbitrator noted that Dr Geschwind also expressed the view that the injury on 26 September 2011 substantially contributed to the injury treated by him from 5 December 2011.
Turning to the evidence of Associate Professor Miniter, the Arbitrator considered it significant that he appeared to concur with the views of Dr Geschwind and Dr Bodel until he was provided with the report of Dr Munoz dated 11 April 2012. She observed however that in the addendum to his first report and the subsequent reports, Associate Professor Miniter:
“accepted without question Dr Munoz’s assertion that the only symptom found by her on examination was tenderness at the T12 and L1/2 levels. Dr Munoz’s evidence was described by A/Prof Miniter as being more objective than the history provided by Mr Palmer. For the reasons given above, I disagree with this conclusion and find Dr Munoz’s clinical records of 26 September 2011 and her subsequent report to the respondent to be unreliable. As a result, I give less weight to A/Prof Miniter’s opinion that Mr Palmer had a long-standing condition to which the workplace injury was not ‘the primary contributing factor.’”[46]
[46] Reasons, [197].
The Arbitrator considered the Court of Appeal authority of Kooragang Cement Pty Ltd v Bates,[47] and that what was required was a common-sense causal chain of connection between the injury and the need for surgery. She considered and applied the Presidential decision by Deputy President Roche of Murphy v Allity Management Services Pty Ltd,[48] which is authority for the proposition that the work injury does not have to be the sole, or substantial cause of the need for surgery.
[47] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[48] [2015] NSWWCCPD 49.
The Arbitrator concluded that in the circumstances and after consideration of all the evidence, she was satisfied that Mr Palmer suffered an injury in the nature of an L4/5 disc injury, probably as expressed by Dr Saravanja and summarised at [136] above. She was not satisfied that there was an intervening incident that was responsible for the subsequent treatment. She found that the injury on 26 September 2011 materially contributed to the need for the surgical treatment in December 2011 and subsequent revision surgeries.
The Arbitrator observed that there was no suggestion that the surgery was not reasonably necessary. She found that the surgery was reasonably necessary as a result of the injury.
The Arbitrator proceeded to determine the weekly payments claim.
Taking into account the agreements reached in respect of the weekly payments claim, the Arbitrator identified the relevant sections of the 1987 Act for each period as follows:
(a) from 1 December 2011 until 31 March 2012 Mr Palmer was totally incapacitated and his entitlements were to be determined in accordance with the former s 36 of the 1987 Act;
(b) from 1 April 2012 to 31 December 2012, Mr Palmer was partially incapacitated for work and his entitlements fell to be determined in accordance with the former s 40 of the 1987 Act, and
(c) from 1 January 2013 until 29 May 2014 (the expiration of 130 weeks of weekly payments), Mr Palmer’s entitlements were to be determined in accordance with s 37 of the 1987 Act as amended.
On the basis that the figure of $1,114.62 per week was claimed to be Mr Palmer’s current weekly wage rate pursuant to the former s 36, and that rate was not disputed, the Arbitrator awarded $1,114.62 per week pursuant to the former s 36 for the period Mr Palmer was totally incapacitated from 1 December 2011 to 31 March 2012.
In respect of the determination of the period from 1 April 2012 to 31 December 2012, the Arbitrator set out the steps she was required to follow in accordance with the decision in Mitchell v Central West Area Health Service.[49] That is, she was required to:
“(a) determine the weekly amount the worker would probably have been earning but for the injury (s 40(2)(a));
(b) determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (s 40(2)(b)), based on the worker’s ability to earn in the general labour market reasonably accessible to the worker (s 40(3)) and having regard to suitable employment for the worker within the meaning of section 43A;
(c) subtract the figure derived from (2) from the figure derived from (1) (s 40(2));
(d) decide whether and to what extent the reduction calculated above appears proper in the circumstances (s 40(1)), and
(e) make an award in the amount arrived at in step 4.”[50]
[49] (1997) 14 NSWCCR 526 (Mitchell).
[50] Reasons, [210].
Noting that the probable weekly earnings but for injury were undisputed to be $1,114.62, the Arbitrator noted Mr Palmer’s submissions that his actual earnings as set out in his wages schedule were consistent with the evidence and constituted an accurate reflection of his ability to earn. Further, Mr Palmer submitted that although the taxable income for the financial year ending 2012 showed a gross income of $51,001, only $3,448 of that income was earned after Mr Palmer ceased working with Chandler Macleod. The Arbitrator noted the total income recorded in the taxation returns in the financial years ending 2013 and 2014 and the source of that income.
The Arbitrator also noted RCR’s submissions that the amounts set out in Mr Palmer’s wages schedule were not an accurate reflection of his ability to earn, and that Mr Palmer had an ability to earn $980 per week. She observed that figure to be a weekly amount equal to Mr Palmer’s total income for 2012, including his pre-injury earnings.
The Arbitrator considered the decisions of the Court of Appeal in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd[51] and Pira P/L v Tucker,[52] noting the relevant passages establish that for the purposes of the former s 40 of the 1987 Act, a worker’s actual earnings are prima facie evidence of his ability to earn unless it is proved that there is some reason unconnected with his ability to earn that reduces his actual earnings, such as idling or deliberately earning less than he or she is able to earn.[53] The evidence must establish that the earnings are not a proper test.[54]
[51] (1945) 46 SR (NSW) 20 (Aitkin).
[52] [1996] NSWSC 569 (Pira).
[53] Aitkin, 23.
[54] Pira, per Beazley JA (as her Honour then was).
The Arbitrator formed the view that the evidence disclosed that Mr Palmer was highly motivated to returned to work and in fact had returned to work before he was advised by his doctors. She took into account the opinions about Mr Palmer’s capacity provided by Associate Professor Miniter, Dr Saravanja and Dr Bodel.
The Arbitrator accepted that:
(a) the weight of the evidence established that Mr Palmer did not have the capacity to return to boilermaker’s duties;
(b) he had finished school at Year 10 level, and there was no evidence he was qualified to perform other work;
(c) the restrictions placed on his work capacity after the injury required him to retrain vocationally;
(d) applying Aitkin and Pira, she was satisfied that Mr Palmer’s actual earnings were a proper test for his ability to earn, and
(e) the figures in the wages schedule filed by Mr Palmer were accurate.
The Arbitrator calculated the difference between Mr Palmer’s probable earnings but for injury and the amount Mr Palmer was earning per week as set out in Mr Palmer’s wages schedule, and found that difference to be $849.39 per week from 1 April 2012 to 30 June 2012 and $839.75 per week from 1 July 2012 to 31 December 2012. She then proceeded to consider whether there were any discretionary matters that required those amounts to be reduced, in accordance with the fourth step in Mitchell and citing Australian Wire Industries Pty Ltd v Nicholson.[55]
[55] (1985) 1 NSWCCR 50 (Nicholson).
The Arbitrator found that, having regard to the principles in Nicholson, she did not believe that a reduction in the mathematical difference between the pre-injury earnings and the actual earnings was necessary.
In relation to the period claimed between 1 January 2013 and 29 May 2014, the Arbitrator applied the formula set out in s 37(2) of the 1987 Act (as amended) because Mr Palmer had current work capacity and had returned to work for not less than 15 hours per week. She said there was no evidence that Mr Palmer had received any non-pecuniary benefits.
Relying on her finding of actual earnings during the financial year ending 2013 of $247.87 per week, the Arbitrator deducted $247.87 from 95% of the pre-injury average weekly earnings of $1,114.62, resulting in a figure of $784.02 per week for the period 1 January 2013 to 30 June 2013. In respect of the period from 1 July 2013 to 29 May 2014, the Arbitrator deducted the figure of $653.62 from 95% of $1,114.62, arriving at an amount of $405.27. The Arbitrator appears to have adopted the figure of $653.62 from Mr Palmer’s wages schedule.
The Certificate of Determination issued on 30 August 2018 relevantly records:
“The Commission determines:
1. On 26 September 2011, the applicant sustained an injury to his lumbar spine at the L4/5 level.
2. The surgery performed by Dr Saravanja was reasonably necessary as a result of the injury of 26 September 2011.
3. The applicant’s incapacity for work from 1 December 2011 onwards resulted from the injury of 26 September 2011.
The Commission orders:
1. The respondent to pay the applicant weekly benefits as follows:
(a) From 1 December 2011 to 31 March 2012 at the rate of $1,114.62 per week;
(b) From 1 April 2012 to 30 June 2012 at the rate of $849.39 per week;
(c) From 1 July 2012 to 31 December 2012 at the rate of $839.75 per week;
(d) From 1 January 2013 to 30 June 2013 at the rate of $784.02 per week; and
(e) From 1 July 2013 to 29 May 2014 at the rate of $405.27 per week.
2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment as follows:
Date of injury: 26 September 2011
Body part: Lumbar spine
Assessment: Whole Person Impairment”.
GROUNDS OF APPEAL
RCR relies on the following grounds of appeal:
(a) Ground 1: Failure to provide sufficient reasons for the decision, and
(b) Ground 2: Failure to apply the “Aitkin” test.
LEGISLATION
Weekly payment provisions prior to the 2012 amendments
Prior to the 2012 amendments to the 1987 Act, ss 36, 37 and 40 of that Act relevantly provided as follows:
“36. Weekly payment during total incapacity—first 26 weeks
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the workers current weekly wage rate.
(2) In this section:
current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.”
“37. Weekly payment during total incapacity—after first 26 weeks
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be:
(a) 90 per cent of the worker’s average weekly earnings, except that:
(i) the payment shall not exceed $235.20 per week,
(ii) in the case of a worker who is over 21 years of age at the time of payment—the payment shall not be less than $187.10 per week, and
(iii) in the case of a worker whose average weekly earnings do not exceed $170 per week—the payment shall be 100 per cent of those earnings or $153, whichever is the lesser amount,
(b) in addition, $62 per week in respect of:
(i) a dependent wife or dependent husband of the worker, or
(ii) if there is no dependent wife or dependent husband at any time during which weekly payments are payable—any one dependent de facto spouse or other family member of the worker, and
(c) in addition:
(i) in respect of the dependent children of the worker, the following amounts per week:
No of dependent children Additional amount per week 1 dependent child $44.30 2 dependent children $99.10 3 dependent children $164.16 4 dependent children $230.90 5 or more dependent children $230.90 plus $66.60 for each child in excess of 4 (ii) if there are no dependent children at any time during which weekly payments are payable—in respect of the dependent brothers and sisters of the worker, the same amounts per week as are payable under subparagraph (i) in respect of dependent children of the worker.”
And
“40. Weekly payments during partial incapacity—general
(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
Note. Section 35 limits the maximum weekly payment of compensation under this section.
(2) Calculation of reduction in earnings of worker—general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment, and
(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury.
Note. The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.
…
(3) Ability to earn in suitable employment
The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:
(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.
…
(5) Maximum rate of compensation
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.”
Weekly payment provisions following the 2012 amendments
Sections 36 and 37 of the 1987 Act (as amended in 2012) provide as follows:
“36. Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
37. Weekly payments in second entitlement period (weeks 14-130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.”
SUBMISSIONS
Ground 1: Failure to provide sufficient reasons for the decision
RCR refers to the Arbitrator’s observations in relation to the inconsistent histories, the unsatisfactory nature of Mr Palmer’s explanations, as well as his willingness to provide incorrect and misleading information, which cast doubt in the Arbitrator’s mind as to the credibility of his evidence generally. RCR further refers to the Arbitrator’s conclusion that overall, she did not find the evidence from Mr Palmer and Mrs Palmer compelling.
RCR quotes the further conclusion reached by the Arbitrator in respect of there being no evidence before her of any injury after Mr Palmer ceased work with RCR.
RCR describes that conclusion as “totally unsatisfactory” because there is no logical argument based on Mr Palmer’s evidence which would satisfy the Arbitrator. In the context of there being no satisfactory evidence before the Arbitrator, RCR submits that the Arbitrator has reversed the onus of proof, so that it was incumbent upon RCR to establish that there was in fact some other injury.
RCR submits that it is “not easily comprehended” how Mr Palmer’s allegations can be accepted, either in part or all, when they depend upon the veracity of Mr Palmer’s evidence.
RCR further submits that no logical argument can be presented to justify the Arbitrator’s satisfaction that Mr Palmer suffered an injury to his spine at the L4/5 level on 26 September 2011. This is said to be particularly in circumstances where the Arbitrator raised a significant number of credit issues, that would induce in a “lay reader” the opposite conclusion.
RCR contends that the authorities require the Arbitrator to intellectually “grapple” with the issues raised and set out the steps taken to arrive at her conclusion, which she has not done.
RCR relies on Tudor Capital Australia Pty Ltd v Christensen,[56] purportedly citing passages from that decision, where McColl JA approved the principle set out in Soulemezis v Dudley (Holdings) Pty Ltd[57] that justice must not only be done but must be seen to be done.
[56] [2017] NSWCA 260.
[57] (1987) 10 NSWLR 247.
Mr Palmer submits that RCR’s submissions are unclear and it is not clear which of the conclusions reached by the Arbitrator are being challenged. Mr Palmer says that the Arbitrator considered all of the evidence relevant to the issue. Further, Mr Palmer asserts that the Arbitrator accepted the evidence of Ms Palmer, Mr Palmer’s wife, and that evidence was not challenged by RCR.
Mr Palmer refers to the Arbitrator’s analysis of his evidence as being unreliable, but that the Arbitrator proceeded to identify the consistency between Mr Palmer’s evidence and the description of injury in the incident investigation form, and the inconsistency in Dr Munoz’s clinical records and reports as well as the lumbar spine x-ray undertaken on the day of injury. Mr Palmer observes that the Arbitrator took into account that the inconsistency in Dr Munoz’s records was never addressed by the doctor.
Mr Palmer asserts that the Arbitrator set out a clear reasoning process, firstly to determine what actually occurred on 26 September 2011, and secondly, to consider the existence of symptoms prior to that date. Mr Palmer says that the Arbitrator’s conclusion was clearly supported by the evidence of Ms Palmer.
In relation to the Arbitrator’s acceptance of a sudden onset of more severe pain on 26 September 2011, Mr Palmer says that the finding was supported by the incident investigation form, which described a “pop”, the back locking up and shooting pain in the entire back. The finding was further supported by the reference in Dr Munoz’s notes to Mr Palmer being unable to move.
Mr Palmer submits that the Arbitrator then proceeded to consider the medical evidence and Mr Palmer’s subsequent employment from September 2011 to December 2011.
Mr Palmer identifies the medical evidence taken into account by the Arbitrator as the history taken by Dr Bodel, the clinical notes of the Impulse Health Chiropractic clinic, the radiological investigations, as well as the opinions of Dr Bodel, Dr Geschwind and Dr Saravanja. Further, the Arbitrator noted that Associate Professor Miniter was initially of the opinion that there was a causal connection between Mr Palmer’s low back symptoms and his employment.
Mr Palmer contends that the Arbitrator gave an explanation as to why she accepted the majority of opinion over that of Associate Professor Miniter.
Mr Palmer further submits that the Arbitrator’s consideration of the lack of evidence of an injury to the lumbar spine between September 2011 and December 2011 was only one of the matters she took into account when reaching her conclusion in relation to injury. He contends that the onus of proof was not reversed, and that it is obvious that evidence of another injury would have been of significance.
Mr Palmer concludes that when read as a whole, the Arbitrator gave careful consideration to the evidence and gave a detailed reasoning process to arrive at her conclusions. He asserts that the Arbitrator’s conclusions were available to her and were correct.
RCR filed submissions in reply to the opposition. The submissions substantially repeat the submissions on appeal, as well as chronologically trawling through the factual background.
In addition, RCR asserts that the evidence of Ms Palmer is not probative evidence and must be regarded as entirely hearsay. RCR submits that the observations by witnesses recorded in unsworn statements logically can only be regarded as observations made by interested third parties and do not assist in establishing that the injury was to the L4/5 disc.
RCR contends that the opinions of the majority of doctors are tainted by reliance on the unpersuasive, inaccurate history provided by Mr Palmer to those doctors.
Further, RCR submits that there is no inconsistency in the evidence of Dr Munoz.
RCR concludes that the false history provided to the doctors, which was acknowledged by the Arbitrator, in the context of the scarcity of objective material otherwise available, cannot be reliable evidence capable of giving support to the Arbitrator’s conclusions.
Ground 2: Failure to apply the “Aitkin” test
RCR complains that the Arbitrator accepted that Mr Palmer’s actual earnings were a true representation of his ability to earn, without providing proper reasoning and without “grappling with the legal principles.” RCR contends that the financial material disclosed considerable scope for Mr Palmer to attribute part of his actual earnings to “associated persons”, which in fact the taxation returns disclose that he did.
RCR says that the Arbitrator erroneously referred to earnings from Worthwhile Recruiting of $3,448 for the financial year 2013 when in fact the earnings were disclosed in the taxation return to be “$1,456 on average”.
Mr Palmer submits that RCR’s ground of appeal is unclear, but appears to suggest that:
(a) the Arbitrator failed to give proper reasons for accepting Mr Palmer’s actual earnings as a true reflection of his ability to earn;
(b) the Arbitrator failed to take into account the scope for Mr Palmer to attribute his income to associated persons, and
(c) the Arbitrator erroneously considered the earnings from Worthwhile Recruiting in the 2013 financial year.
Mr Palmer submits that the obligation to give reasons must be considered in the context of the issues before the Arbitrator. He says that RCR applied for and was given leave to cross-examine Mr Palmer in respect of the injury. Despite the cross-examination traversing areas outside of that issue, RCR did not either seek leave to put that issue to Mr Palmer, nor venture to ask questions of Mr Palmer about his post injury work activities.
Mr Palmer contends that RCR’s submissions to the Arbitrator were limited to Mr Palmer’s earnings with Worthwhile Recruiting in 2013 and that Mr Palmer’s earnings with a business called Chook Enterprises (an entry in the taxation returns) in 2012 ought to be calculated as $980 per week. Mr Palmer asserts that RCR did not suggest that Mr Palmer’s wages schedule was not accurate, nor did RCR suggest that the payments to “associated persons were anything other than payments properly made”. Additionally, RCR did not suggest that Mr Palmer was not working to the extent of his ability, or that there was other, more lucrative work he could be doing.
Mr Palmer submitted that the Arbitrator’s observations were correct that his earnings totalled $3,448 with Worthwhile Recruiting during the 2012 financial year and were his only post injury earnings that year.
Mr Palmer summarised his own relevant submissions made at the arbitration as follows:
(a) the earnings were as set out in his wages schedule, which were consistent with the taxation returns;
(b) most of the earnings recorded in the 2012 taxation return were received prior to December 2011;
(c) that Aitkin applied in respect of the period 1 April 2012 to 31 December 2012, and there was no evidence that Mr Palmer was deliberately reducing his earnings;
(d) the same principle would apply to the period from 1 January 2013, but by operation of s 37 of the 1987 Act, the numerical result would be different.
Mr Palmer asserts that RCR responded to those submissions by indicating it did not cavil with the submissions in respect of the weekly payments claim.
Mr Palmer contends that it is not surprising that the Arbitrator did not consider the scope of his ability to attribute part of his income to other persons, as it was never a submission made to the Arbitrator and never appeared to be a part of RCR’s case. Further, RCR have raised no other complaint on appeal in respect of the Arbitrator’s conclusions about incapacity and the calculation of the award of weekly compensation.
In reply, RCR advises that it makes no further submission on this ground. RCR refers however to Ms Palmer’s income for the 2012 and 2013 financial years, which was not in evidence.
The relief sought by RCR on appeal is that the decision of the Arbitrator is set aside and an award entered in its favour, or alternatively the matter to be remitted to a different Arbitrator for re-hearing. In the further alternative, RCR seeks to have the matter re-determined by a Presidential member.
Mr Palmer seeks to have the Arbitrator’s decision confirmed.
DISCUSSION
Ground 1: Failure to provide sufficient reasons for her decision
RCR essentially complains that:
(a) it was not open to the Arbitrator to accept Mr Palmer’s case, when she had found significant credit issues in respect of the evidence of Mr Palmer and Mrs Palmer;
(b) the Arbitrator failed to set out the steps she took to arrive at her conclusion, so that justice is not seen to have been done;
(c) the Arbitrator reversed the onus of proof by requiring RCR to establish there had been a subsequent injury;
(d) the Arbitrator should not have accepted the evidence from Ms Palmer;
(e) the medical evidence was unreliable because it was based on incorrect histories, and
(f) there was no inconsistency in Dr Munoz’s evidence.
The only submission by RCR that goes to this ground of appeal, that is that the Arbitrator has failed to give sufficient reasons, is [192(b)] above. The remaining submissions contend that in some way, the Arbitrator has erred in her acceptance of the evidence. The Commission has repeatedly reminded practitioners of the requirement in Practice Direction No 6 to clearly and succinctly set out the grounds of appeal and that all submissions must clearly and succinctly address each ground of appeal. The presentation of the issues raised in this appeal is unsatisfactory.
Did the Arbitrator err in her acceptance of the evidence?
Although this issue has not been identified as a ground of appeal (except as part of Ground 1), both parties have made submissions as to whether it was open to the Arbitrator to accept the evidence before her. I intend to deal with those submissions.
RCR submits that there is no inconsistency in the evidence of Dr Munoz. That submission blatantly ignores:
(a) the obvious internal inconsistency in the clinical note made on the day of injury;
(b) the referral for an x-ray of the lumbar, rather thoracic spine on that day, and
(c) the reference to symptoms at the T12/L1 level in Dr Munoz’s first report dated 2 April 2012, but low back pain in her second report dated 3 March 2015.
The Arbitrator clearly spelled out those matters in her evaluation of the evidence. It was open to the Arbitrator to find Dr Munoz’s evidence inconsistent.
RCR complains that the evidence of Ms Palmer should not have been accepted. As submitted by Mr Palmer, Ms Palmer’s evidence was not challenged at the arbitration. No objection was taken to the admission of that evidence and no submission made as to why it should not have been accepted. It is not open to a party to allege error on the part of the Arbitrator in failing to deal with an issue not raised.[58]
[58] Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68 (Caddaye), [68].
RCR submits that Ms Palmer’s evidence is unsworn and is hearsay. Ms Palmer’s evidence is in written form and is signed by her. This is the procedure adopted by the Commission and it is unnecessary for Ms Palmer to provide sworn testimony. The Commission is not bound by the rules of evidence.[59] Further, her evidence as to what activities she and Mr Palmer took part in and when that occurred is direct evidence that she is able to give. She is also entitled to report her own observations of Mr Palmer’s physical difficulties and the complaints he made to her.
[59] Section 354(2) of the 1998 Act.
There was no logical reason to reject the evidence of Ms Palmer.
RCR further contends that the Arbitrator could not accept the medical opinions on causation because those opinions were based on incorrect histories.
Doctor Geschwind provided two reports and his clinical notes. The history recorded by Dr Geschwind at the first consultation was that Mr Palmer had suffered from back symptoms for eight months. Mr Palmer did not complain of a work injury at that consultation. Before the preparation of the first report dated 3 August 2012, Dr Geschwind had the benefit of the clinical records of Dr Munoz. He noted the history recorded by Dr Munoz that Mr Palmer had twisted his back while lifting 5 kilograms of steel on 26 September 2011. Dr Geschwind diagnosed a “back strain/mechanical back pain due to lifting steel 5 kg in weight, he then developed left sciatic pain due to a[n] L4/5 disc herniation resulting in a left sided foraminal stenosis that required surgery in December 2011.”[60]
[60] Dr Geschwind’s report; ARD, p 19.
On 1 February 2012, Dr Geschwind recorded in his clinical notes that Mr Palmer injured his back by twisting and lifting on 26 September 2011, and that Mr Palmer had experienced back pain on and off for eight months but the pain was “nothing like after lifting”.[61] That consultation and the history was provided to Dr Geschwind before he wrote his first report.
[61] Dr Geschwind’s report; ARD, p 20.
The history relied upon by Dr Geschwind in the report dated 3 August 2012 was entirely consistent with the history the Arbitrator accepted, which was that Mr Palmer had experienced prior symptoms but that the injury on 26 September 2011 (which was recorded in the incident investigation form and Dr Munoz’s notes) produced significantly greater symptoms.
In his first report dated 31 January 2014, Dr Bodel recorded the history and mechanism of the injury on 26 September 2011 that conformed with the information provided in the incident investigation form. He further took the history of post-injury employment and worsening symptoms. Dr Bodel recorded that there were no prior back problems. Dr Bodel opined that there was a direct causal link between the injury and Mr Palmer’s symptoms. In his second report, following a review of reports of Dr Munoz and Dr Geschwind, Dr Bodel confirmed his opinion that he was satisfied that the disc injury occurred in the lumbosacral region, leading to nerve root irritability and, taking into account the radiological evidence, that the external disruption of the L4/5 disc could have been caused by the injury. Apart from Dr Bodel recording there were no prior symptoms, the history to Dr Bodel is consistent with the established facts.
Dr Saravanja also had a history that Mr Palmer had been experiencing low back pain for eight months, which had not settled after a recent aggravation. Dr Saravanja said he recalled Mr Palmer mentioning an injury. He observed that if the injury was a twisting or loading injury it could well have caused a herniation of material from the disc. After a review of all the documentation, Dr Saravanja concluded that Mr Palmer’s work-related accident contributed to the disc herniation at L4/5 and explained the pathological process as to how that occurred.
There is nothing in the history recorded by Dr Saravanja that departs from the factual matters accepted by the Arbitrator and which were open to the Arbitrator to accept.
RCR has not submitted as to why the histories discussed above are not correct. In the light of the Arbitrator’s findings, which were open to her, RCR’s complaint as to her acceptance of the medical opinions is unfounded.
Did the Arbitrator reverse the onus of proof?
RCR contends that by taking into account the absence of evidence that there had been a subsequent injury, the Arbitrator has reversed the onus of proof.
I accept Mr Palmer’s submission that the absence of evidence of a subsequent injury was only one of the factors the Arbitrator took into account when reaching her conclusion. The task before the Arbitrator was to assess the evidence before her. That is, to balance the evidence that tended to support the causal chain of connection between the injury, the pathology identified at the L4/5 level, and the need for the subsequent surgery, against the evidence that did not. Had there been evidence of a subsequent injury, that fact would have supported RCR’s case that there was some other likely cause for the pathology at the L4/5 level. The Arbitrator’s observation that there was no evidence of a subsequent injury was just one factor in her consideration of the whole of the evidence that led her to accept Mr Palmer’s case. It did not amount to a shifting of the onus of proof from Mr Palmer’s legal burden to make out his case.
Did the Arbitrator provide sufficient reasons for her decision?
The Arbitrator approached the matter on the basis that she was required to determine the nature of the injury sustained on 26 September 2011, as identified at the outset of the arbitration and in her reasons. The Arbitrator proceeded to consider all of the evidence before her, commencing with a consideration of the evidence of Mr Palmer and both Mrs and Ms Palmer.
After identifying the inconsistencies between Mr Palmer’s evidence and the histories contained in the medical evidence, the Arbitrator reached a conclusion that Mr Palmer’s evidence (and that of his mother, Mrs Palmer) was unreliable.
The Arbitrator proceeded to examine the contemporaneous records that might have given objective support for Mr Palmer’s case. That approach was consistent with the New South Wales Court of Appeal authorities in Malco Engineering Pty Ltd v Ferreira[62] and Divall v Mifsud,[63] and the approach taken by Keating P in Brines. In Brines, Keating P set out the principles, based on Ferreira and Divall as follows:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.”[64]
[62] (1994) 10 NSWCCR 117 (Ferreira).
[63] [2005] NSWCA 447 (Divall).
[64] Brines, [78].
The Arbitrator conducted an evaluation of the objective evidence, including:
(a) the incident investigation form completed on the date of injury by a representative of RCR, which reported the incident, and consistently reported that Mr Palmer had suffered a twisting injury when he felt a “pop” in the lower back;
(b) the records of Dr Munoz on the day of injury, that inconsistently recorded the level of complaint to be at the thoracic and upper lumbar level, and in the same note recorded low lumbar symptoms, and
(c) the radiological investigation requested and performed on that day was in respect of the lumbar spine.
The Arbitrator also took into account the medical opinions as to causation, including the reasoning process of the medical experts in arriving at their conclusions. The Arbitrator particularly noted the opinion, and the reasons given for that opinion, expressed by Dr Saravanja, Mr Palmer’s treating specialist.
Putting aside the question of whether the Arbitrator ought to have accepted that evidence, she has clearly identified the steps taken and the reasoning process by which she arrived at her ultimate determination that the injury suffered by Mr Palmer on 26 September 2011 involved an injury to the lumbar spine at the L4/5 level.
It follows that RCR’s complaint that the Arbitrator failed to provide sufficient reasons for her decision cannot be accepted.
For the reasons provided above, this ground of appeal fails.
Ground 2: Failure to apply the “Aitkin” test
Aitkin was a stated case before the New South Wales Court of Appeal. Mr Aitkin sustained a work-related injury rendering him partially incapacitated for his pre-injury duties. He continued to work for the employer for a time, performing suitable duties and was paid not less than his pre-injury earnings. Several years after the injury, Mr Aitkin became totally incapacitated for work as a result of a non-employment related condition. The question arose as to whether Mr Aitkin was entitled to compensation for his work-related partial incapacity during that period.
In a joint judgment delivered by Jordan CJ, the Court determined that Mr Aitkin was not entitled to weekly payments. The Court considered s 11 of the Workers’ Compensation Act, 1926 (the section equivalent to the former s 40(2)(b) of 1987 Act) and the phrase “is earning, or is able to earn”. Referring to earlier relevant authorities, Jordan CJ made the following observations (omitting citations):
“The burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to limit the weekly payments under s 11 is upon the employer. The English section corresponding with s 11 has been considered in several decided cases … As to the phrase ‘is earning’, it has been held that if the partially incapacitated worker is earning something his actual earnings must prima facie be taken as the basis, and the rate of compensation provided for by s 9 reduced by a calculation based on the excess of his pre-injury average weekly earnings above what he is actually earning. If, however, it is proved that his actual earnings are not a proper test, because there is some reason un-connected with his earning power which makes them lower than they should be, the other alternative, what he is ‘able to earn,’ must be adopted This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power …”.[65]
[65] Aitkin, 22–23.
A review of the transcript of submissions made by RCR at the arbitration confirms the submissions made on appeal by Mr Palmer. That is, RCR did not seek leave to cross-examine in respect of the entries in the taxation returns relating to payments to “associated persons”[66] and RCR put no questions to Mr Palmer in respect of those entries.[67] The transcript further confirms that RCR’s submissions to the Arbitrator relating to the weekly payments claim were limited to:
(a) an assertion that during the 2013 financial year, Mr Palmer worked for a “couple of months” and was paid $1,456 per week during that period,[68] and
(b) that Mr Palmer was able to earn $980 per week, based on the average per week of his entire 2012 earnings.[69]
[66] Transcript of Proceedings (T), Palmer v RCR Stelform (VBRT) Pty Ltd [2018] NSWWCC 199 Arbitrator Homan, 31 July 2018, T 3.19–4.20.
[67] T 7.34–33.3.
[68] T 38.5–8.
[69] T 39.16–40.2.
Mr Palmer’s submissions which followed were that:
(a) a substantial proportion of the income for the 2012 financial year related to pre-injury earnings;
(b) the figures in the wages schedule were consistent with his taxation returns;
(c) during the period when the entitlement to weekly payments was to be calculated in accordance with the former s 40, the principle in Aitkin applied, and
(d) there was no evidence to suggest Mr Palmer’s capacity to earn was greater than his actual earnings, and his actual earnings were a true reflection of his capacity to earn.[70]
[70] T 53.16–54.4
The transcript records that RCR responded to those submissions by indicating that it did not “cavil with [RCR’s] submissions about the weeklies.”[71]
[71] T 56.6–7.
RCR’s allegation that the Arbitrator erred in determining that Mr Palmer’s actual earnings were an accurate reflection of his ability to earn is based on the false premise that the contrary proposition was argued at the arbitration. RCR’s submission to the Arbitrator that Mr Palmer could earn $980 per week was not based on an argument that the presumption in Aitkin had been displaced by the evidence. It was based on an assertion that for a period Mr Palmer actually earned $980 per week post injury, which was clearly not supported by the evidence, as submitted by Mr Palmer and as explained by the Arbitrator.[72]
[72] Reasons, [214]–[215].
The point raised in this appeal is that there was evidence of payments to “associated persons” which allowed Mr Palmer to minimise his actual earnings, presumably by “income splitting”.
The Commission has repeatedly pointed out that arbitrations are not a dress rehearsal and appeals are not a rehearing. It is not open to RCR to argue that the Arbitrator erred in not dealing with an issue that was never argued before her.[73]
[73] Caddaye, [68].
Even if it were open to RCR to raise this issue on appeal, the argument would fail in any event. There is no evidence that the payments to “associated persons” constituted an income minimising arrangement and there are other explanations that could be given, such as those payments were payments to contractors. A further explanation may have been that it was a payment made in accordance with the arrangement between Mr Palmer’s company, his father’s company and a third associated company that they would split the profits from the work done between them.[74] Mr Palmer’s explanation was that he was advised by his accountant that the figure represented his earnings, including superannuation.[75] No contrary proposition was put to him, and there was no evidence to contradict his statement.
[74] Mr Palmer’s statement dated 13 July 2016; ARD, pp 73–75.
[75] AAALD dated 3 July 2018, p 4, [10(a)].
Whether actual earnings truly reflect the ability to earn is a question of fact for the trial judge.[76] The Arbitrator considered the available evidence as to Mr Palmer’s ability to earn, including the medical opinions, Mr Palmer’s education and experience, and Mr Palmer’s motivation to work. All of those matters are pertinent in an assessment of whether a worker’s actual earnings are reflective of his or her ability to earn. The Arbitrator followed a proper reasoning process to arrive at her conclusion that she was satisfied that there was no evidence that would shift the prima facie acceptance that Mr Palmer’s actual earnings were a true reflection of his ability to earn, in accordance with Aitkin.
[76] Pira, per Abadee JA.
RCR has not established error on the part of the Arbitrator in respect of this ground of the appeal, and ground 2 of the appeal fails.
A FURTHER MATTER
In her determination of the claim for weekly payments, the Arbitrator calculated the difference between Mr Palmer’s probable weekly earnings but for injury, and his actual weekly earnings. She made an award in favour of Mr Palmer for the period claimed, but relevantly for the period from 1 April 2012 to 30 June 2012 at the rate of $849.39 per week and from 1 July 2012 to 31 December 2012 at $839.75 per week. For those periods of entitlement, Mr Palmer was partially incapacitated for work and his entitlements fell to be determined in accordance with the former s 40 of the 1987 Act.
The former s 40(5) of the 1987 Act provided that after the first 26 weeks of incapacity, a partially incapacitated worker was not to exceed the weekly payment that would be payable to the worker if the worker had been totally incapacitated for work. The former s 37(1)(a)(i) of the 1987 Act provided that after the first 26 weeks of incapacity, the weekly entitlement for a worker who was totally incapacitated for work was not to exceed the statutory maximum, as adjusted, with allowances for any dependants.
The applicable statutory maximum for the period from 26 weeks after Mr Palmer’s first entitlement to weekly compensation was $432.50 for the period from 1 April 2012 to 30 September 2012 and $439.50 from 1 October 2012 to 31 December 2012. During that time, Mr Palmer did not have any dependants.
The amount awarded by the Arbitrator after the first 26 weeks and before 1 January 2013 exceeded those statutory limits.
At the arbitration, both parties were represented by experienced counsel, but neither party submitted to the Arbitrator that she was required to apply the statutory limits to the amount of compensation awarded, and neither party has raised this issue on appeal.
I therefore issued a direction on the parties to provide written submissions on the application of the statutory maximum limit to Mr Palmer’s entitlement to weekly compensation during that period. Both parties conceded that Mr Palmer’s entitlement was limited to the statutory maximum after the first 26 weeks and prior to 1 January 2013.
RCR provided the figures for the period from 1 October 2011 to 31 December 2012.
In his submissions filed out of time but considered by me in any event, Mr Palmer conceded RCR’s figures were correct, but submitted that the maximum statutory cap did not apply until 11 June 2012, which was the expiration of the first 26 weeks.
The claim for weekly payments commenced from 1 December 2011. The date of 11 June 2012 does not accurately reflect the expiration of the first 26 weeks. The year 2012 was a leap year. The first 26 weeks expires on 30 May 2012, and thereafter, the statutory maximum applies until 31 December 2012.
The award of weekly payments made by the Arbitrator for the period from 31 May 2012 to 31 December 2012 is an error of law. I therefore revoke the Arbitrator’s determination in respect of that period. I find that Mr Palmer’s entitlements to weekly compensation for that period are as follows:
(a) $432.50 per week from 31 May 2012 to 30 September 2012, and
(b) $439.50 per week from 1 October 2012 to 31 December 2012.
The Arbitrator’s Certificate of Determination is otherwise confirmed.
DECISION
The Arbitrator’s determinations at paragraphs 1, 2 and 3 of the Certificate of Determination are confirmed.
The Arbitrator’s orders at paragraphs 1(b) and 1(c) are revoked and in their place the following orders are made:
(b) From 1 April 2012 to 30 May 2012 at the rate of $849.39 per week;
(c) From 31 May 2012 to 31 December 2012 at the following rates:
(i)$432.50 per week from 31 May 2012 to 30 September 2012, and
(ii)$439.50 per week from 1 October 2012 to 31 December 2012.
The remaining orders are confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
28 February 2019
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