Reln Plastics Pty Ltd v Tamapua
[2006] NSWWCCPD 3
•23 January 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Reln Plastics Pty Ltd v Tamapua & Anor [2006] NSWWCCPD 3
APPELLANT: Reln Plastics Pty Ltd (in the interest of QBE Workers Compensation (NSW) Ltd
FIRST RESPONDENT: Faimaala Tamapua (aka Tulolo)
SECOND RESPONDENT: Allianz Australia Workers Compensation (NSW) Ltd (insurer on risk for Reln Plastics Pty Ltd for the period of 11 May 1999 to 30 June 2000)
INSURERS:QBE Workers Compensation (NSW) Ltd (insurer on risk for Reln Plastics Pty Ltd for the period of 30 June 2000 to 30 June 2005)
Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC13220-04
DATE OF ARBITRATOR’S DECISION: 13 January 2005
DATE OF APPEAL DECISION: 23 January 2006
SUBJECT MATTER OF DECISION: Finding of injury; aggravation, acceleration, exacerbation or deterioration of disease; date of injury; apportionment of liability; evidence and weight of evidence; natural justice.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: QBE Workers Compensation – In House Legal
First Respondent: Doherty Partners (Faimaala Tamapua)
Second Respondent: Vardanega Roberts Solicitors (Allianz Australia Workers Compensation (NSW) Ltd)
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of both Respondents in the appeal.
BACKGROUND TO THE APPEAL
Mr Faimaala Tamapua was employed by Reln Plastics Pty Ltd (‘Reln Plastics’) at all relevant times. On 11 May 1999 Mr Tamapua was lifting a 50 kilogram 60 litre drum of thinner on his own at his place of employment. He says that he experienced pain in his back and could barely straighten up. He attended at the surgery of Dr Goyal on the same day, complaining of pain on the left side of his lower back radiating "posteriorly" to the left thigh. According to the evidence, Dr Goyal saw Mr Tamapua again on 13 May 1999 and gave him a certificate to remain off work until 17 May 1999. He returned to work and resumed his normal duties until he said, the pain in his back, buttocks and leg had become so bad that he stopped working in December 2001. He returned to work with Reln Plastics in February 2002, undertaking different duties for three to four days until he ceased due to the pain in his back.
Reln Plastics was insured for workers compensation with Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) for the period 11 May 1999 to 30 June 2000, and QBE Workers Compensation (NSW) Ltd (‘QBE’) was on risk for the period 30 June 2000 to 30 June 2005.
Mr Tamapua made a claim for workers compensation on Allianz on 30 September 2003 in relation to his injury of 11 May 1999. Mr Tamapua also made a claim for workers compensation on QBE on 30 September 2003 in relation to his injury in December 2001. Mr Tamapua submitted amended Notices of Claims on both Allianz and QBE respectively on 3 October 2003.
On 30 August 2004 Mr Tamapua lodged in the Workers Compensation Commission (‘the Commission’) an ‘Application to Resolve a Dispute’. The basis of his claim is that he suffered injuries to his lumbar spine as a result of a frank injury sustained on 11 May 1999, and injury arising from the “nature and conditions” of his employment, as a team leader and labourer with Reln Plastics up to December 2001. He claims weekly benefits compensation, and payment of compensation for medical expenses, and for permanent impairment and pain and suffering.
A determination was made by an Arbitrator of the Commission on 13 January 2005.
On 10 February 2005 QBE, for Reln Plastics, lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 January 2005 records the Arbitrator’s orders as follows:
“1.The Applicant sustained injuries within the definition of both section 4(a) and 4(b)(ii) of the [Workers Compensation Act 1987] 1987 Act.
2.That the date of the Applicant’s injury is deemed by section 16 of the 1987 Act [to] be February 2002.
3.That there is to be an approval to an Approved Medical Specialist for the purposes of assessment of both permanent impairment and incapacity.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether the Arbitrator erred in deeming Mr Tamapua’s date of injury as being February 2002, when he also found that Mr Tamapua sustained a frank injury on 11 May 1999;
(2)whether the Arbitrator erred by failing to apportion liability between the two insurers pursuant to section 22 of the 1987 Act, and further, whether the Arbitrator denied the Respondent Employer in the interests of QBE Workers Compensation (NSW) Ltd. natural justice, in that prior to and/or during the arbitration proceedings, the parties were advised that the Commission would not determine apportionment between the insurers, and
(3)whether the Arbitrator erred in finding that Mr Tamapua’s duties from 17 May 1999 until December 2001, and modified duties in February 2002, aggravated, accelerated, exacerbated or caused further deterioration in his condition, and further, whether he erred in failing to give proper reasons for his finding.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The Appellant Worker submits that the appeal may be determined on the papers and the Respondent Employer has offered no objections. Having regard to the submissions, evidence and documents that are before me, I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The monetary threshold prescribed in section 352(2)(a) and (b) is satisfied.
There have been some delays in service of documents, including submissions, and in the filing of the ‘Notice of Opposition to Appeal Against Decision of Arbitrator’, which was lodged in the Commission on 1 September 2005. Without canvassing the reasons for these delays, which were essentially of an administrative nature, and there being no injustice or prejudice occasioned to the parties, I dispense with compliance with the Rules, pursuant to Rule 6(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’), in relation to the delays, in order that the appeal may proceed on the basis of the documents, evidence and submissions that are now before me.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The submissions made by QBE may be summarised as follows:
· the Arbitrator, having found an injury and a subsequent deemed date of injury by reason of section 16 of the 1987 Act, was obliged to apportion liability pursuant to section 22 of the 1987 Act (Rail Services Australia v Dimovski [2004] NSWCA 267 (‘Dimovski’));
· the Arbitrator’s finding to deem Mr Tamapua’s injury to be February 2002 and to advise the Approved Medical Specialist that this is the “deemed date of injury”, ignored the fact that Mr Tamapua also suffered an injury on 11 May 1999;
· the Arbitrator, having been advised of Dimovski, if the Commission found that there was a frank injury and a subsequent deemed injury, by reason of section 16 of the 1987 Act, it was obliged to apportion each Insurers’ respective liability;
· the Approved Medical Specialist should have been advised of the Arbitrator’s findings relating to the cause of Mr Tamapua’s “L5/S1 pathology”, being a consequence of the 11 May 1999 injury;
· the Commission’s findings that the “best available inference” is that the worker’s subsequent duties caused a deterioration in the worker’s condition ignored the medical evidence which concluded that Mr Tamapua’s condition is a result of the May 1999 incident, and
· it is submitted that there is no medical evidence that a deteriorating pain condition must be caused by further “injury”.
The submissions made by Allianz may be summarised as follows:
· as found by the Commission (based upon the evidence of Dr Beer), the injury was a “disease injury” sustained as a consequence of the aggravation of degenerative disease by the nature and conditions of employment between May 1999 and December 2001 and not the single injurious episode of 11 May 1999, which resulted in a relevant incapacity for employment after February 2002;
· section 22(1) of the Workers Compensation Act 1987 Act (‘the 1987 Act’) provides that the section only applies to apportion liability where the incapacity or loss “results from more than one injury”. The Arbitrator determined that Mr Tamapua’s incapacity was held to result from one injury, namely the “disease injury” constituted by the aggravation of pre-existing degenerative disease and accordingly section 22 would not apply;
· alternatively it was submitted that if the Commission finds as a matter of law that incapacity resulted partly from each of the 11 May 1999 injurious episode and the “disease injury”, the application of the wider test under section 22(1A) would not lead to a determination that the incapacity was so connected with both injuries as a matter of ordinary commonsense and experience, that the relevant incapacity should be regarded as having resulted in part from the 11 May 1999 injuries episode (Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87). Accordingly. The Commission did not err in law by failing to apportion between insurers;
· QBE’s submissions, that the Arbitrator ignored medical evidence such as Dr Beer’s report dated 29 November 2004, should fail as the report was not included in the documentary evidence before the Arbitrator, and no application had been made by the QBE to adduce fresh evidence on the Appeal;
· the medical evidence that in the circumstances of Mr Tamapua’s employment, he sustained injury in May 1999 rather than a “deteriorating pain condition” as submitted by QBE, is found in an analysis of the totality of Dr Beer’s reports, the history in Mr Tamapua’s statement and the evidence of the treating doctors, Dr Vo and Dr Patu;
· the Arbitrator did not overlook his obligation to give reasons when deciding between experts (Dr Beer, DR Smith and Dr Mills) and for relying on a particular expert opinion, that of Dr Beer. Furthermore, it was submitted that the Commission gave adequate reasons and did not err in law within the parameters discussed by the Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and
· it was submitted in the alternative that if it is found that both the injurious event on 11 May 1999 and the “disease injury” fall within the definition of personal injury within section 4(a) of the 1987 Act and incapacity in the relevant sense of economic incapacity resulted from employment with the employer during the period of risk of both insurers such that section 22 of the 1987 Act applies, the liability to pay compensation should be apportioned in proportion to time on risk (pro-rata) and the Approved Medical Specialist should be directed accordingly.
The submissions made by Mr Tamapua may be summarised as follows:
· no submissions were made by Mr Tamapua in response to QBE’s grounds of appeal in relation to apportionment between the insurers;
· it was observed that in the Arbitrator’s Reasons for Decision (‘Reasons’) the Arbitrator noted that “the Applicant continued to lift the same heavy drums which caused the symptoms on 11 May 1999”, and
· the Commission’s reliance on expert evidence was supported (MMI Workers Compensation NSW v Kennedy & Ors [1993] NSWCC26; (1993) 9 NSWCCR 482.
The documentary evidence in the proceedings, itemised at paragraph 11 of the Arbitrator’s Reasons, and a transcript of the oral evidence given before the Arbitrator, are before me in this appeal and, as relevant, are taken into account.
DISCUSSION AND FINDINGS
Did the Arbitrator err in deeming the date of injury as being February 2002, when he also found that Mr Tamapua sustained a frank injury on 11 May 1999?
The parties are in dispute as to whether or not the Arbitrator found that Mr Tamapua sustained a frank or separate injury on 11 May 1999. The Appellant, QBE, submits that the Arbitrator did make such a finding. It points to paragraph 34 of the Arbitrator’s Reasons to support its submission. At paragraph 34 the Arbitrator states:
“Contrary to the First Respondent’s [Allianz] submission, I consider that the most likely inference is that included in the degenerative change noted by Dr Beer as a consequence of the 11 May 1999 injury was the L5/S1 pathology noted in the lumbar spine on the MRI.”
The Arbitrator then said at paragraph 35 of his Reasons:
“However, I do accept the First Respondent’s submissions recorded in paragraph 20-22 (above) that carrying out his normal duties from 17 May 1999 until December 2001 and carrying out the modified duties in February 2002 aggravated, accelerated, exacerbated or caused further deterioration in the degenerative changes which Dr Beer noted were first aggravated, accelerated, exacerbated or caused further deterioration by the 11 May 1999 incident. I consider that is the best available inference in all the circumstances for the reasons advanced by the First Respondent in its submission.”
In paragraphs 20-21 the Arbitrator refers to the submissions made by the “First Respondent”, and at paragraph 22, he refers to “the conclusion that something happened between May 1999 and December 2001. That is, the worker continues in his normal duties, the pain gets progressively worse.” He alludes to the fact that because the pain became increasingly worse Mr Tamapua resigned. He then says:
“That all points to an aggravation of something so that the worker can’t do his job anymore. That is something other than what happened in May 1999 for which he only took off 4 days – that was the only incapacity.”
There is no doubt that the Arbitrator found that Mr Tamapua sustained an injury that consisted in the aggravation, acceleration, exacerbation or deterioration of pre-existing degenerative disease of the lumbar spine (see paragraph 37 of his Reasons). What is less obvious on a reading of the body of the Arbitrator’s Reasons is whether he also formally found that a frank or separate injury was sustained in May 1999, as alleged by the Appellant. On the one hand he refers to the 11 May 1999 as the first aggravation, acceleration, exacerbation or deterioration of the degenerative changes. On the other hand, he refers to the aggravation as “something other than what happened in May 1999”. The Arbitrator’s principal focus is on the nature of Mr Tamapua’s medical condition after 11 May 1999. Whatever occurred on 11 May 1999, the Arbitrator is satisfied that what followed, was not a series of events arising from a frank injury that occurred on that day, but arose from the subsequent work activities of Mr Tamapua, being an aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative disease. In accepting Allianz’s submissions (see paragraphs 20-22 and 35 of the Reasons), the Arbitrator found that the L5/S1 pathology in the lumbar spine is not a consequence “of May 1999 injury”.
A reading of the transcript of the proceedings before the Arbitrator reveals a good deal of discussion on the point but is not particularly helpful in resolving the issue. The Arbitrator cited a number of medical opinions but did not express verbally, any findings relevant to this issue, during the course of the proceedings.
However, turning to paragraph 42 of his Reasons, the Arbitrator states in summary, that Mr Tamapua sustained an injury within the definition of section 4(a) of the 1987 Act “on 11 May 1999” and that he also, sustained an injury within the definition of section 4(b)(ii) of that Act. The Arbitrator’s decision set out in the next paragraph (erroneously numbered ‘11’) and repeated at item 1 in the ‘Certificate of Determination’, refers to “injuries within the definition of both section 4(a) and 4(b)(ii) of the 1987 Act” and is consistent with his summary. Notwithstanding any lack of clarity in the body of his Reasons, it is clear by reference to what he states in his summary and decision in those Reasons, and the contents of the ‘Certificate of Determination’, that the Arbitrator has found two injuries, that is a frank injury on 11 May 1999, as well as subsequent injury by reason of aggravation, acceleration, exacerbation or deterioration of a disease. I find accordingly, that the Arbitrator has found two injuries, as submitted by the Appellant. However, I agree with Allianz that the Arbitrator did not find that the May 1999 episode “set in train a series of events which culminated in the worker’s incapacity in February 2002”. This is clear from the Arbitrator’s statement at paragraph 36 of his Reasons:
“I do accept that there is no medical evidence from which I might infer that the nature and conditions of the Applicant’s employment should be treated as causing a series of microtraumata leading to symptoms which were not a disease.”
Moreover, as stated in paragraph 22 above, the four days absence from work after sustaining the injury on 11 May 1999, was found by the Arbitrator to be “the only incapacity” that arose from that particular injury.
The essence of the Arbitrator’s findings and decision, if they are correct, is that the incapacity caused by the injury sustained on 11 May 1999 (or as described by Allianz, “the single injurious episode on 11 May 1999”) was not ongoing, and that a separate and subsequent injury, being the aggravation, acceleration, exacerbation or deterioration of a disease, where employment was a contributing factor to that aggravation, acceleration, exacerbation or deterioration (the date of that injury deemed by the Arbitrator to be February 2002), gave rise to a separate and subsequent incapacity. I note that the Arbitrator notified both dates of injury in his ‘Request for Medical Assessment by Approved Medical Specialist’ dated 29 December 2004. In order to determine whether the Arbitrator erred in his findings as to injury on 11 May 1999, for the purposes of the issue under discussion, it is necessary to establish whether the evidence before the Arbitrator supports them.
In terms of the medical evidence, Allianz submits that Dr Beer’s report dated 29 November 2004 should not be considered, as it was not recorded at paragraph 11 of the Arbitrator’s Reasons as a document that was before him. That is a typographical omission on the part of the Arbitrator as the references to the transcript provided by the Appellant in its submission of 4 December 2005, reveal that the document was in fact located by the Arbitrator and was discussed in the proceedings. No objection was taken to its admission into evidence in the proceedings. Consequently, it is a document that ought to be taken into account in this appeal.
It is not disputed that following the injury on 11 May 1999, Mr Tamapua resumed his normal duties within a matter of days. As the Arbitrator states, Mr Tamapua resumed his normal duties from 17 May 1999 until December 2001 before taking up light duties.
While Dr Beer, Orthopaedic Specialist, initially erred in his initial report of 28 May 2003 as to the date of Mr Tamapua’s injury, he corrected the error in his letter of 24 September 2003. However, the time span between the initial, erroneous date of injury and December 2001 when Mr Tamapua was assigned to light duties prior to ceasing work in February 2002 would have been eighteen months, whereas the correct time span from the date of injury of 11 May 1999 until ceasing work was thirty three months. Nevertheless, Dr Beer adhered to the substance of his initial report, notwithstanding the error. A reading of Dr Beer’s report reveals a conclusion on his part that Mr Tamapua’s injury or injuries arose from the events of 11 May 1999 and he observed that Mr Tamapua had no previous history of trouble with his back. His opinion is stated thus:
“I feel this patient incurred a soft tissue injury to his lumbar spine consistent with lifting the drum of paint thinner in July 2000 [sic]. He may have aggravated a degree of early degenerative changes in his lumbar spine as well.”
This opinion is indicative of a discreet soft tissue injury on 11 May 1999, as well as the possibility of aggravation of early degenerative changes in his lumbar spine.
In his letter of 23 June 2003 Dr Beer says:
“I feel the patient may well have a disc lesion at the L5/S1 level with some degree of herniation which would be consistent with the patient’s history as outlined in my report sent to you on 28 May 2003. The MRI was very helpful indeed in finalising a diagnosis in this particular case where the patient incurred an injury to his spine when lifting a drum in July 2000 [sic].”
A report dated 10 June 2003 from Dr Michael Reeves of Penrith Imaging sets out the result of an MRI of Mr Tamapua’s lumbrosacral spine. It indicates, amongst other things, that there is an increased thickening of the anterior epidural space deep to the posterior longitudinal ligament extending full-thickness at the L5 and S1 vertebral bodies and showing similar signal intensity to the underlying intervertebral disc material. He states:
“This could well represent a herniated disc which has extended both cranially and caudally but is not causing any significant impression of the thecal sac and no displacement of either S1 nerve root sheath.”
Relevantly, Dr Paniani Patu, one of a succession of Mr Tamapua’s treating doctors, issued a statement on 13 May 2003 stating that he “presented” on 22 April 2002 with “the complaint of low back pain dating back to 2 years ago. The date of injury is July 2000. There is a history of heavy lifting at work with the resultant low back pain.” He also states, “At the L5/S1 level there was no disc herniation present.” And further, “There is ongoing pain related to the lumbar spine. The diagnosis is that of musculo-ligamentous injury on the background of degenerative joint disease of the L/S from chronic heavy lifting.”
Dr Srinivasan, treating doctor stated in his report of 17 October 2003 that Mr Tamapua had consulted him on 25 May 2001 for low back pain that had commenced three months before that date. He informed Mr Tamapua on that occasion that his CT scan revealed no bone abnormalities and advised him to take some anti-inflammatory medication. Mr Tamapua consulted Dr Srinivasan again in July 2002 and August 2003 as a result of back pain that had developed while lifting 60kg tins of paint thinners and putting them on a bench.
A report dated 10 December 2003 of Dr Van Phuoc Vo, treating doctor, indicated that Mr Tamapua first visited his practice on 10 May 1991 but initially complained of back pain on 26 June 2000, and further, that there had been no history of any injury at that time. However, he goes on to say that Mr Tamapua continued to complain of back pain from that point, but that his compliance with treatment was poor.
Mr Tamapua consulted Dr Goyal, treating doctor on 11 May 1999 and complained of backache. An x-ray of his LS spine revealed no abnormality. He gradually improved and Dr Goyal gave him a certificate to return to work on 17 May 1999. He returned for further treatment on 23 March 2000. He says in his report of 11 July 2003, “He was complaining of painful legs around Tendo Achillis tendons. There was no history of trauma.”
Finally, as the Arbitrator states at paragraph 33 of his Reasons, Dr Smith, Orthopaedic Surgeon, considered that Mr Tamapua, on the balance of probabilities, aggravated his low back degenerative disease in 1999 and that the aggravation would have ceased “after a few days or few weeks or three months at most.”
Without traversing the detail of the medical evidence any further, but taking all of the evidence into account, I find that the weight of that evidence supports the Arbitrator’s findings of two separate injuries resulting in separate incapacities. The weight of the evidence supports that the incapacity arising from the frank injury on 11 May 1999 was not ongoing. The dates and results of medical consultations that occurred after that time together with the fact that Mr Tamapua resumed his normal duties on 17 May 1999, including the heavy lifting which continued for some time thereafter, support the Arbitrator’s conclusion that what followed the frank injury and any short-term incapacity that arose from it, was separate and distinct. The requirements of section 9A of the 1987 Act were met in relation to the frank injury sustained on 11 May 1999, although this is not an issue in dispute in this matter.
While I agree with the Appellant that the Arbitrator did find two dates of injury, the injuries and incapacities that resulted are not related. Consequently, the Arbitrator was not in error in finding two dates of injury, and this ground of appeal is not made out.
Did the Arbitrator err by failing to apportion liability between the two insurers pursuant to section 22 of the 1987 Act, and did he err in denying natural justice to the Respondent Employer [Appellant] in the interests of QBE in advising the parties that the Commission would not determine apportionment between the insurers?
Apportionment pursuant to section 22 of the 1987 Act applies where death, incapacity or permanent impairment results from more than one injury. In the instant case, there are two injuries, each with discreet incapacity. In Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87; 12 NSWCCR 716 the Court of Appeal held that the test involved the application of ordinary common sense to the facts of each case. The Court said that it is necessary to determine whether an incapacity is so connected with a number of injuries that, as a matter of ordinary common sense and experience, it should be regarded as having resulted partly from all or any of them (per Clarke JA). In this case, the Court said that the first question to be asked is whether an incapacity or loss “in strictness” resulted from more than one injury. If it is found that this is not the case, the question must then be asked whether the incapacity or loss resulted partly from one injury, and partly from one or more different injuries (section 22(1A) of the 1987 Act). If either question is answered in the affirmative, apportionment must be carried out.
On the evidence in the instant case, both questions are answered in the negative. The incapacity that arose from the frank injury that was sustained on 11 May 1999 was not ongoing and is not “in strictness” connected to the incapacity found by the Arbitrator, to have later resulted from the aggravation, acceleration, exacerbation or deterioration of a disease. Similarly, on the evidence, the incapacity did not result partly from one injury, and partly from one or more different injuries. In the circumstances the Arbitrator did not proceed to the point where he was bound by the decision in Rail services Australia v Dimovski & Anor [2004] NSWCA 267, as submitted by the Appellant.
The Arbitrator was not required to make an apportionment, or to give consideration to the question of apportionment. Having regard to his findings on injury, apportionment was not a relevant consideration. It follows that there was no denial of natural justice by reason of not considering the issue of apportionment. I find accordingly, and this ground of appeal fails.
Did the Arbitrator err in finding that Mr Tamapua’s duties from 17 May 1999 until December 2001, and modified duties in February 2002, aggravated, accelerated, exacerbated or caused further deterioration in his condition, and further, did he err in failing to give proper reasons for his finding?
The medical history set out in the report dated 24 September 2003 of Dr Mills, Consultant Physician in Occupational Medicine, was provided by Mr Tamapua and assisted by “copies of various reports” which are unspecified. Dr Mills noted that Mr Tamapua returned to his pre-injury duties soon after sustaining the injury on 11 May 1999. He observed that at the examination, “no objective abnormalities were identified although there was significant embellishment with exaggerated pain behaviour.” Dr Mills did not have the benefit of the results of the radiological investigations that had been carried out up to that point. He also said that Mr Tamapua provided a history lacking in specific detail, which was at times, conflicting. He regarded Mr Tamapua’s account as unreliable to some extent. In addressing the issue as to whether work was a substantial contributing factor to his condition at the time of the assessment, Dr Mills stated:
“In the absence of information to the contrary, Mr Tamapua’s employment at the time of 1999 should be considered to be a substantial contributing factor.”
While Dr Mills noted a degree of incapacity, he clearly did not have all of the medical information and history at his disposal at the time of making the assessment. His report is somewhat qualified compared to the other medical evidence. His conclusion that the injury that occurred on 11 May 1999 “should be considered to be a substantial contributing factor” was not made, as he himself infers in his report, with the benefit of all of the relevant medical information. Moreover he arrived at this conclusion based substantially upon the history that he said was provided to him by Mr Tamapua – a history that he considered to be not entirely reliable. Dr Mills did not apparently turn his mind to the possibility of aggravation, acceleration, exacerbation or deterioration of a disease as a cause of injury, but focussed entirely on the 11 May 1999 injury, as this was the only indication of injury that was given to him by Mr Tamapua. However, he did state, “There is no indicational history that Mr Tamapua has sustained an aggravation of any pre-existing condition.” He also noted that Mr Tamapua’s treatment is quite minimal.
However, in discounting Dr Mills’ opinion as to “substantial contributing factor” it does not necessarily follow that there was in fact an aggravation, acceleration, exacerbation or deterioration of a disease where employment was a contributing factor (section 4(b)(ii) of the 1987 Act). The Appellant submits that the Arbitrator’s finding in this regard is based on an assumption that as the “back pain got worse” that there must have been a further cause. It submits that, “the justification for concluding that there has been a further injury is the assumption that something happened between May 1999 and December 2001 because the back pain got worse.” The Appellant further submits, “There being no medical evidence to support this ‘assumption’, the Commission appears to have relied on its expert knowledge.” On the other hand, Allianz submits there is evidence from the “worker, his medico-legal expert and 2 treating doctors” to establish that employment involving heavy lifting was the cause of injury and incapacity within the meaning of section 4(b)(ii) of the 1987 Act.
There is no dispute and I agree, that there is medical evidence of degeneration and disease, and of growing incapacity over a period commencing some time after 17 May 1999 and up to February 2002. However, the question remains as to whether the evidence supports the finding that employment was a contributing factor to injury, given that the 11 May 1999 event and any associated, short-term incapacity arising from it, is removed from the equation.
The Arbitrator observes at paragraph 22 of his Reasons that the increase in back pain experienced by Mr Tamapua got to the point where he could no longer carry out his normal duties (and the subsequent lighter duties) and he resigned for that reason. He goes on to say, “That all points to an aggravation of something so that worker can’t do his job anymore. That is something other than what happened in May 1999 for which he only took off 4 days – that was the only incapacity.” At paragraph 24 he says, “It was conceded that none of the doctors addresses the matter directly, however, Dr Mills recorded in his report that the Applicant continued to lift heavy drums.” [during the period May 1999 to December 2001]. There is no dispute that Mr Tamapua commenced what is described as light duties in December 2001 before he ceased work in February 2002. The evidence supports the Arbitrator’s view that the aggravation, acceleration, exacerbation, or deterioration continued during this period, and that Mr Tamapua was unable to continue his employment, for that reason.
Dr Beer’s report of 28 May 2003 was issued without the benefit of x-rays, but he recommended that Mr Tamapua submit to a CAT scan. At that date, Dr Beer was focussed on the events of 11 May 1999 by reason of the history given to him, and made no reference to injury by reason of disease, other than to say, “He may have aggravated a degree of early degenerative changes in his lumbar spine as well.” A letter from Ultrascan Radiology addressed to Dr Beer indicated amongst other things that Mr Tamapua’s L5-S1 disc was normal. He did indicate however, “The superior aspect of the right sacro-iliac joint has a large bridging osteophyte and mild associated sclerosis.” In his report of 23 June 2003 Dr Beer stated that Mr Tamapua “may well have a disc lesion at the L5/S1 level with some degree of herniation which would be consistent with the patient’s history as outlined in my report sent to you on 28 May 2003.” He goes on to say, “The MRI was very helpful indeed in finalising a diagnosis in this particular case where the patient incurred an injury to his spine when lifting a drum in July 2000 [sic] …”.
Notwithstanding that the event of 11 May 1999 is no longer under consideration, Dr Beer’s report does lend support to the argument that heavy lifting at work, potentially, could cause injury to Mr Tamapua’s back.
It is significant that Dr Patu, one of the treating doctors, attributes the heavy lifting at work as a contributing factor to Mr Tamapua’s lower back pain but as at the date of his report of 13 May 2003, he indicates that there was no disc herniation at the L5/S1 level. He does report however, “The bony neural canal was normal. Early degenerative changes are developing in the paravertebral joints here. No other abnormally [sic] was detected.” He reports ongoing pain related to the lumbar spine and diagnoses musculo-ligamentous injury on the background of degenerative joint disease of the L/S from chronic heavy lifting. A permanent loss of function of the lumbar spine is assessed at 25%. Dr Srinivasan, also a treating doctor, states that the back pain developed during the course of lifting 60kg tins of pain thinners during his employment with the Appellant.
In his report of 19 November 2003 Dr Smith opines that Mr Tamapua could easily have had other aggravations to his back “with lengthy periods of standing or sitting.” He says that Mr Tamapua is probably much fitter than he makes out, but concedes the existence of a degree of lumbar degenerative disease that is symptomatic. He says that Mr Tamapua may be fit for work “but needs to avoid work that involves excessively heavy and repetitive bending and lifting activities.” He goes on to say, “He is probably fit for his old occupation. All he would need to do is avoid the rather heavy lifting he describes of the 60lt containers.” He says then that the impairment to Mr Tamapua’s back is due to constitutional degenerative disease and on the balance of probabilities there is no post traumatic lesion in his lumbar spine and none of the impairment is consequent to his work or the activities of the [sic] May 1999.” There is some inconsistency in this as Mr Tamapua in fact did resume his former duties when he returned to work in May 1999, which up to December 2001, included the same heavy lifting that Dr Smith said that he should not undertake, in order to avoid aggravation to his back. This inconsistency is noted in the Arbitrator’s Reasons at paragraph 33. Dr Smith makes the additional point that lumbar degenerative disease is radiologically almost universal and symptoms from time to time are almost universal - “30 is the common age of onset for symptoms from that condition.”
While Mr Tamapua’s case before the Arbitrator was not overwhelming, I consider that taking all of the medical evidence into account, and in particular, the opinions of his treating doctors, there is sufficient evidence upon which the Arbitrator could base his decision, notwithstanding that there are inconsistencies in the evidence as a whole. The fact that Mr Tamapua suffered an injury, albeit a frank injury on 11 May 1999 from heavy lifting, is a clear demonstration that it was probable and arguably inevitable, that he was exposed to the risk of injury at work such that employment would be a contributing factor. It is also established that Mr Tamapua’s lumbar spine was subject to degenerative disease. The weight of the medical opinion supported the view there was an aggravation, exacerbation and deterioration by reason of injury suffered during the course of undertaking his employment duties, which on the evidence, involved heavy and repetitive lifting. While Mr Tamapua did not particularly convince Dr Smith of his injury and incapacity or the extent of it, Dr Smith saw fit to advise in his report, prophetically it seems, that Mr Tamapua should not undertake heavy lifting in his employment, to avoid injury to his back. Notwithstanding this advice, the evidence is that he did in fact continue to engage in heavy lifting as part of his employment. Finally, and as previously stated, Dr Mills’ view, which was generally similar to that of Dr Smith, was set out in a report that was somewhat qualified, and was therefore assessed accordingly.
I am satisfied on balance that Mr Tamapua suffered a personal injury arising out of or in the course of his employment, being the aggravation, acceleration, exacerbation or deterioration of a disease, where his employment with the Appellant was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. I find accordingly.
Having regard to the whole of the evidence, I find that the provisions of section 9A of the 1987 Act are satisfied also, in that Mr Tamapua’s employment was a substantial contributing factor to his injury, whether or not it may have been the only contributing factor.
While I consider that a greater degree of clarity and systematic analysis in the Arbitrator’s Reasons was desirable, I am satisfied that he did properly consider the evidence that was before him and that he adequately addressed the critical and relevant issues. Accordingly I find that on balance, the Arbitrator did not err in arriving at his decision; that his reasons were adequate, and that his decision is supported by the evidence and the weight of the evidence.
This ground of appeal is not made out.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the costs of both Respondents to this appeal, as agreed or assessed
Gary Byron
Deputy President
23 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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