Roads and Traffic Authority of New South Wales v Harwood
[2010] NSWWCCPD 24
•11 March 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Roads and Traffic Authority of New South Wales v Harwood [2010] NSWWCCPD 24 | ||||
| APPELLANT: | Roads and Traffic Authority of New South Wales | ||||
| RESPONDENT: | Mark Harwood | ||||
| INSURER: | Allianz Insurance Limited as agent for Treasury Managed Fund | ||||
| FILE NUMBER: | A1-4458/09 | ||||
| ARBITRATOR: | Mr J Ireland | ||||
| DATE OF ARBITRATOR’S DECISION: | 15 October 2009 | ||||
| DATE OF APPEAL DECISION: | 11 March 2010 | ||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; section 352(2) threshold, compensation at issue on appeal; section 60 of the Workers Compensation Act 1987 and application of Widdup v Hamilton [2006] NSWWCCPD 258 | ||||
| PRESIDENTIAL MEMBER: | President Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Thompson Cooper Lawyers | |||
| Respondent: | Robb & Associates Solicitors Pty Limited | ||||
| ORDERS MADE ON APPEAL: | Leave to appeal the decision of the Arbitrator dated 15 October 2009 is refused. The Appellant to pay the Respondent’s costs. | ||||
BACKGROUND TO THE APPEAL
The worker, Mr Harwood, commenced employment with the Roads and Traffic Authority (‘RTA’) in 2001 as a line-marker/truck driver. He alleges that on 18 January 2007 he injured his neck when he lifted a gas cylinder weighing approximately 45 kilograms from the ground onto the tray of his truck. In the alternative, Mr Harwood alleged that as a result of a lifting incident on 18 January 2007, he aggravated pre-existing degenerative changes in his neck.
Mr Harwood claimed certain medical expenses, including the costs of spinal surgery recommended by his treating neurosurgeon, Dr Pell.
On 9 September 2007 the RTA, through its insurer Treasury Managed Fund (‘TMF’), wrote to Mr Harwood and informed him that liability for his claim had been denied under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). That decision was based on a report dated 15 August 2007 from Dr Paul Hitchen, orthopaedic surgeon, qualified by the RTA. Dr Hitchen was of the opinion that Mr Harwood’s condition was due to a degenerative disc disease. In Dr Hitchen’s view Mr Harwood suffered a soft tissue strain to his neck and a transient aggravation of symptoms arising from an underlying degenerative process. He thought this would have resolved within 6 weeks and any persisting symptoms thereafter were due to the underlying constitutional process.
On 1 June 2009 Mr Harwood filed an Application to Resolve a Dispute in the Commission. Mr Harwood claimed medical expense of $18,858.75 comprising $613.95 of incurred medical expenses, travelling expenses of $939.40 and $17,305.40 in respect of future medical expenses associated with the recommended cervical laminectomy.
On 1 July 2009 the RTA filed a Reply. It relied on a notice issued to Mr Harwood under section 74 notice which put “section 9A, causation and section 60” in issue.
The matter was listed for conciliation and arbitration before a Commission Arbitrator in Griffith, New South Wales, on 24 September 2009. Mr Harwood gave evidence at the hearing and the legal representatives for both parties made detailed submissions. The Arbitrator reserved his decision.
On 15 October 2009 the Arbitrator found in favour of Mr Harwood and ordered the RTA to pay reasonable and necessary medical expenses pursuant to section 60. The Arbitrator published his Statement of Reasons for Decision (‘Reasons’) the same day.
In an appeal filed on 3 November 2009 the RTA seeks leave to appeal the Arbitrator’s determination.
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 RTA initially submitted that an oral hearing on appeal was required, but subsequently withdrew the submission. Mr Harwood agreed that the appeal could be heard on the papers.
Having regard to Practice Directions Numbers 1 and 6, and the detailed written submissions before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that is the course I propose to adopt.
LEAVE TO APPEAL
Time
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
The Commission is not to grant leave to appeal unless the monetary threshold pursuant to section 352(2) is satisfied. That subsection provides:
“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
It is clear from the Application the amount of medical expenditure actually incurred by the worker totals $613.95 and incurred travelling expenses of $939.40. Future medical expenses, including those relating to the proposed cervical laminectomy total $17,305.40. Therefore the total of medical expenses and travelling expenses actually incurred total $1,553.35, which is well below the threshold of $5,000.00 in section 352(2).
Neither party submitted on the jurisdiction of the Commission to hear and determine the appeal in the circumstances where the threshold in section 352(2) is only satisfied if the anticipated cost of future surgery is taken into consideration. I therefore caused the matter to be listed for a telephone conference before me on 2 February 2010. At the telephone conference Mr Perry of counsel appeared for the RTA and Mr Robb, solicitor, appeared for Mr Harwood. At the conclusion of the telephone conference I issued the following directions:
“1. On or before 4 pm on 12 February 2009 the Appellant is to file and serve supplementary submissions addressing the monetary threshold under section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998.
2. On or before 4 pm on 26 February 2009 the Respondent is to file and serve supplementary submissions in reply addressing the monetary threshold under section 352(2)(a) of the 1998 Act.
3. The parties are directed to the following relevant authorities:
§NSW Sugar Milling Co-Operative Ltd v Manning (1998) 44 NSWLR 442; (1998) 16 NSWCCR 606
§Widdup v Hamilton [2006] NSWWCCPD 258
§Robinson v Forster Tuncurry Memorial Services Club Ltd 2007 NSWWCCPD 84
§Corporate Management Services (Australia) Pty Ltd v Country Energy and ors [2010] NSWWCCPD 5
§Lilly v Tomago Aluminium Company Ltd [2004] NSWWCCPD 33
§Olympic Fencing (NSW) Pty Ltd v Crossley [2007] NSWWCCPD 121
§Baptist Community Service- NSW & ACT v Abi-Arrage [2008] NSWWCCPD 16
§Bielecki v Rianthelle Pty Limited t/as Belfora [2008] NSWWCCPD 53.”
SUBMISSIONS
RTA
The RTA filed further submissions on the monetary threshold issue dated 12 February 2010. I have had regard to the submissions in full and may be summarised briefly as follows:
(a) The absence of a declaratory power does not negate the possibility that the amount of compensation at issue in a dispute limited to section 60 entitlements may include costs yet to be incurred. In Baptist Community Service- NSW & ACT v Abi-Arrage [2008] NSWWCCPD 16 (‘Abi-Arrage’). Acting Deputy President Snell observed at [19]:
“The situation is analogous to matters where the same argument has been raised, based upon section 352(2)(a), where the order the subject of appeal was a general order pursuant to section 60 of the 1987 Act. The approach taken in Presidential decisions in such circumstances has involved enquiring into the sums of which recovery would be sought, pursuant to the general order. Where the material available on appeal indicated the sums involved were less than $5,000, leave was refused, where more than $5,000, section 352(2)(a) was taken to be satisfied”
(b) At [21] of Abi-Arrage, Acting Deputy President Snell considered, in perusing the factual enquiry, the cost of the surgical procedure yet to be performed. This cost well exceeded the section 352(2) threshold. It was clear from the background referred to by Acting Deputy President Snell at [6] and [7] that the “amount of compensation at issue” included compensation yet to be paid that would become payable if the worker were successful.
(c) In an earlier decision of Olympic Fencing (NSW) Pty Ltd v Crossley [2007] NSWWCCPD 121 (‘Crossley’), Acting Deputy President Snell observed at [24], a general order for section 60 expenses will never be for a specific sum. It has been the practice, in other Presidential decisions, to enquire into the sums of which recovery will be sought, pursuant to such general order, for the purpose of considering whether section 352(2)(a) is satisfied.
(d) If this appeal fails the RTA would be liable for sums of at least equal to and possibly more than $18,858.75 specified in the Application to Resolve a Dispute.
(e) The interpretation of section 352(2) adopted by Acting Deputy President Snell is a natural interpretation of the words in that subsection, “the amount of compensation at issue”.
(f) The Commission should find that “the amount of compensation at issue” exceeds the statutory threshold and would, in the circumstances, grant leave to appeal.
Mr Harwood
Mr Harwood made the following submissions on the monetary threshold issue:
(a) Section 352(2)(a) is a mandatory provision which imposes a form of restriction or bar upon appeals.
(b) The Commission is bound to apply the laws of New South Wales (Electricity Commission of New South Wales v Yates [1991] 30 NSWLR 351 per Handley JA at 358).
(c) The words “at issue on the appeal” have a clear and unambiguous meaning (see Widdup v Hamilton [2006] NSWWCCPD 258 at [41]-[44] (‘Widdup’) and Abi-Arrage at [44]-[45]).
(d) If Widdup and NSW Sugar Milling Co-Operative Ltd v Manning (1998) 44 NSWLR 442; (1998) 16 NSWCCR 606 (‘Manning’) are binding, that is, that there is neither jurisdiction to make a claim in respect of future medical expenses, nor, jurisdiction to order payment of same, then the matter “at issue” in the appeal and subject to an enforceable order must be limited to the medical expenses incurred to the date of the hearing of the arbitration. That sum is well under $5,000.00.
(e) The comments of Acting Deputy President Snell in Crossley and Abi-Arrage, referred to in the Appellant’s submissions are obiter should not be followed.
DISCUSSION
In Widdup the former President of the Commission, Sheehan J, held that unlike the former Compensation Court of NSW, the Commission does not have the power to make an order that an employer is liable for proposed treatment before the cost of that treatment has been incurred. Widdup concerned an Application for Leave to Refer a Question of Law to the President. The question posed was:
“Where liability is not in issue, does an Arbitrator have power to [make] a declaratory finding or determination that proposed specific medical treatment by a particular specialist for a compensable injury suffered by the Applicant, is reasonably necessary treatment within the meaning of section 60 of the Workers Compensation Act 1987?”
After an analysis of the authorities, Sheahan J determined at [50] that the answer to the question posed was:
“No, the Workers Compensation Commission does not have the power or jurisdiction to make a ‘declaration of liability’ in respect of proposed hospital and medical treatment pursuant to section 60 of the Workers Compensation Act 1987” (emphasis added).
It is well settled that unlike the former Compensation Court of NSW, this Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty limited & Another [2003] NSWCA 146: (2003) 57 NSWLR 282), and as such it does not possess an inherent jurisdiction but only has such powers as are incidental and necessary to the exercise of its statutory function.
Section 105 of the 1998 Act establishes the scope of the Commission’s statutory jurisdiction. The extent of the Commission’s jurisdiction was considered by the Court of Appeal in Raniere Nominees Pty Limited Trading as Horizon Motor Lodge v Daley and Anor [2006] NSWCA 235. That case concerned the jurisdiction of the Commission to extend a statutory time limit in an application under section 145(3) (now repealed) of the 1998 Act. In finding the Commission lacked the power to extend time, Santow JA with whom Spigelman CJ agreed noted at [66]:
“Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction: see DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [24ff]”.
Section 60 of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any occupational rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note. Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.” (emphasis added)
In a unanimous decision, the Court of Appeal in Manning held that section 60 is an indemnity provision. Mr Manning had been rendered a C5 quadriplegic as a result of a motor vehicle accident. He was profoundly disabled and required almost constant nursing and therapeutic care. Mr Manning’s wife provided the majority of the care voluntarily. A dispute arose as to whether the care provided by the worker’s wife was compensable. Burke CCJ made an award in favour of the worker to represent the value of the services rendered to him by his wife and family which his Honour said “would fall within the ambit of Grifftihs v Kerkemeyer (1977) 139 CLR 161”.
Allowing an appeal from Burke CCJ’s decision the Court of Appeal considered the question of whether the nursing or therapeutic services rendered by Mrs Manning were a “cost” within the meaning of section 60. Meagher JA held that section 60 is an indemnity section, which empowers the making of orders that the employer pay his employee’s bills. That, his Honour said was the obvious and primary meaning of the word “cost”. Stein JA agreeing with Meagher JA and noted that the principle in Griffiths v Kerkemeyer has no place in section 60. Sheppard A-JA added at [449]:
“The question to be resolved is a question of statutory construction. He said “what does the word ‘cost’ embrace in the context in which it is used? Just as in Griffiths v Kerkemeyer and in Van Gervan, the claimant here has a need for the services in question. But to adopt that approach in the present case is to attribute to the legislature an intention to give to the word ‘cost’ the expanded meaning which would be required in order to yield a construction which would give the word ‘cost’ a meaning which would embrace more than financial cost; it would equate the word ‘cost’ with the concept of need. Read in context, I did not think that this is the meaning which the word was intended to have. The plaintiff in an action at common law does not have to show, as Gibbs J held in Griffiths v Kerkemeyer, that the need ‘is or may be productive of financial loss’. Section 60 of the Act does not disclose an intention by the legislature to equate the position under the Act with that which existed at common law.” He added “the word ‘cost’ in the context in which it appears in section 60 can have no meaning other than one which involves a financial liability on the part of the worker to pay for the services provided.”
Sheahan J noted at [24] of Widdup:
“[The] Commission’s jurisdiction in respect of a claim for hospital and medical expenses under section 60 is invoked when the person on whom a claim is made ‘disputes liability for the claim’ or ‘fails to determine the claim as and when required’ by the provisions of the 1998 Act (section 289(2) of the 1998 Act)”.
He added at [41]:
“Manning is binding authority that section 60 is an indemnity provision under which orders can be made for the payment of the cost of hospital and medical treatment. A ‘cost’ is ‘a financial liability to pay for services provided.’ If no ‘cost’ has been incurred then there is no financial liability involved. Therefore, in my view Manning creates an insurmountable barrier to the making of a declaratory order for the payment of specific future hospital and medical expenses pursuant to section 60, because those anticipated expenses are not ‘costs’ within the meaning of that term in section 60.”
The RTA submits that the absence of a declaratory power does not negate the possibility that the amount of compensation at issue in the dispute limited to section 60 entitlements may include medical costs yet to be incurred.
In Crossley Acting Deputy President Snell permitted the inclusion of future medical expenses when considering whether the section 352(2) threshold had been satisfied. He noted that a general order for section 60 expensed will never be for a specific sum. The Acting Deputy President considered the test was whether the Presidential member could be satisfied on the evidence that the medical expenses recoverable pursuant to a general order would exceed the section 352(2) threshold of $5,000.00.
A similar approach to the leave question was taken in Abi-Arrage. However, ultimately the attempt to distinguish Widdup and an earlier decision of Robinson v Forster Tuncurry Memorial Services Club Ltd [2007] NSWWCCPD 84 (‘Robinson’) failed. The Acting Deputy President considered the impact of the existence of an existing general order under section 60 and secondly, a submission that no order for the payment of section 60 expenses was sought. What was sought was merely a factual finding that certain proposed treatment was reasonably necessary. He concluded at [36]-[44] that Widdup and Robinson could not be validly distinguished on either of those grounds and held the Commission did not have jurisdiction to order the relief sought namely an order in respect of future medical expenses.
In Bielecki v Rianthelle Pty Limited t/as Belfora [2008] NSWWCCPD 53 (‘Bielicki’), Widdup was distinguished on the basis that whilst Widdup concerned the Commission’s power to make a declaratory order for the payment of future medical expenses, the worker in Bielecki did not seek such an order. She sought a finding that future medical expenses in the order of $30,000.00 to $40,000.00 were reasonably necessary as a result of a work injury. It was held that for the purpose of determining if the threshold in section 352(2)(a) was satisfied, it was necessary to determine whether, “the amount of compensation at issue on the appeal” was at least $5,000.00. To resolve that question the Commission allowed the inclusion of the cost of the future medical treatment to be added to the incurred treatment costs to determine the threshold question.
However, the approach taken in Bielecki was not followed in a subsequent decision, Corporate Management Services (Australia) Pty Ltd v Country Energy and ors [2010] NSWWCCPD 5 (‘Corporate Management Services’). In that matter the worker sought an order for a modest sum, well under the statutory threshold, for medical expenses incurred, plus “a general order for knee reconstruction and associated costs”. After reviewing the authorities Deputy President Roche held at [27] that ‘general orders’ for the payment of section 60 expenses would have limited legal effect because the Commission has not made a determination as to whether any future expenses were reasonably necessary as a result of the relevant injury (section 60(1) of the 1987 Act). The Deputy President held, consistent with Widdup that the Commission had no jurisdiction to order the payment of section 60 expenses that have not been incurred.
Consistent with the reasoning in Widdup and Manning, I agree that section 60 is an indemnity provision which may only be invoked in respect of claims for medical expenses as and when those costs are incurred. The jurisdiction of this Commission may only be invoked when a dispute arises or there is a failure to determine a claim for such expenses in accordance with sections 288 and 289(2) of the 1998 Act.
I reject the submission that the identification of a need for specific medical treatment in the future is a matter that may be taken into consideration when considering whether the threshold provisions of section 352(2) have been satisfied. To do so, would be inconsistent with the rationale in Manning, which is binding authority on this Commission. I see no justification for the inclusion of the cost of anticipated medical expenses for the purposes of consideration of the leave issues when the Commission has no jurisdiction to give any final relief in respect of those expenses.
For these reasons the claim in respect of the costs of anticipated surgery cannot be taken into consideration in determining whether the section 352(2) has been satisfied.
It follows that the amount of compensation at issue on the appeal ($939.40) is well below the $5,000.00 threshold in section 352(2) and leave to appeal must be and is refused.
I recognise this decision will create uncertainty for Mr Harwood in respect of the very considerable cost of the surgery his doctor has recommended. The absence of prior confirmation that the cost of the surgery will be met, may lead to delay in appropriate treatment and unnecessary hardship. I echo the sentiments of Sheahan J in Widdup concerning the Commission’s lack of jurisdiction to make declarations of future liability and the need for legislative reform.
If I am wrong on this threshold issue, it is appropriate, given the parties’ submissions and the nature of the issues in dispute, that I state my views on those issues.
ISSUE IN DISPUTE
The issue in dispute on the appeal is whether the weight of evidence supported the Arbitrator’s finding that the worker sustained an injury to his neck, or in the alternative aggravated a pre-existing degenerative condition in his neck on 18 January 2007.
THE EVIDENCE
Lay evidence
Mr Harwood relied on a signed statement dated 21 April 2009.
Mr Harwood was born in 1970. He has three children. He left school at the age of 16. He commenced employment with the RTA in 2001 as a line-marker/truck driver. Prior to working with the RTA he was employed as a driveway attendant at a service station in Hay, NSW for approximately two years. Before that he worked on and off as a motor mechanic for over ten years.
Mr Harwood stated that on 18 January 2007 he injured his neck in the course of his employment when he lifted a 45 kilogram gas cylinder from the ground onto the tray of his truck. As he was doing so he felt a sudden pain in his neck and a shooting pain down his left arm. He also felt pain in his lower back. During the course of that day he developed pins and needles in his left thumb and index finger.
The incident was reported to his employer and he kept working however his condition did not improve. He saw his general practitioner, Dr Arrudsivah at the Hay Surgery on 24 January 2007. He was referred to physiotherapy and was given analgesic medication.
The physiotherapy did not assist and ultimately he was referred for investigation by way of MRI scan and x-rays. Mr Harwood stated that he continued to experience ongoing problems with his neck, back and shoulder but he continued undertaking his duties notwithstanding his discomfort.
Mr Harwood was referred to Dr Pell and was initially seen by him on 20 September 2007. Dr Pell recommended facet joint injections. Mr Harwood submitted to the injections, however, they did not assist and he continued to experience pain in his neck, left arm and back.
Dr Pell subsequently recommended Mr Harwood should have an operation on his neck in the form of a cervical laminectomy.
Mr Harwood confirmed that prior to the accident on 18 January 2007, he had not experience any difficulties with respect to his neck, left arm or back. In 1992 he injured his right shoulder in a motor vehicle accident but made a good recovery. He did not sustain any injuries to his neck or to the left side of his body in that accident. Before the incident in January 2007 he was not experiencing any pain in his neck, back or left arm. Since then however, he has continued to experience pain in the neck, ongoing pain in the left arm including pins and needles in his hand and pain radiating up and down his back. He proposes to proceed with the operation recommended by Dr Pell.
Mr Harwood gave oral evidence at the hearing. He was cross-examined by Mr Perry of counsel about the history he gave Dr Arrudsivah when he consulted her on 24 January 2007. He said:
“I told her I injured myself during lifting the gas cylinder. By the time I drove the fuel truck to the destination where I was heading I was in excruciating pain, and the symptoms persisted and then I went and seen the doctor.”
Dr Arrudsivah’s notes of the consultation record the following history:
“I developed pins and needles whilst driving a truck on 18 January 2007.”
Mr Harwood denied that Dr Arrudsivah’s note was a complete record of what he told her. He stated assertively that the history he gave her was that he was injured whilst lifting the gas cylinder (T6.21). He added that by the time he had driven to where he was going he had numbness and pins and needles in his arm and fingers (T6.27).
Mr Harwood conceded he told Dr Hitchen that prior to his accident on 18 January 2007 he had not experienced any difficulties with respect to his neck, left arm or back.
Mr Harwood could not recall telling a general practitioner, Dr Van Vu at the Hay Surgery on 17 November 2003 that he had suffered 15 years of right neck, shoulder pain, right arm, on and off after a motor vehicle accident as is recorded in the doctor’s notes (T8.15). He conceded that he may have been prescribed Panamax for neck pain but denied that he had ever experienced pain to the extent of the pain that he was then in.
In re-examination Mr Harwood stated that he was unable to recall any other occasion upon which he had sought medical treatment for any problems with respect to his neck.
Mr Harwood signed a Workers Compensation Claim Form on 15 February 2007. In answer to the question as to how the injury occurred he said “lifting gas bottle onto truck”.
The RTA relied on an unsigned computer generated “accident log” attached to the written claim form containing details of the injury under the heading Accident Details stated:
“Mr Harwood stated that while he was driving his track he experienced pain in his left shoulder due to a nerve impingement which has not resolved. He is seeking medical treatment”.
Medical Evidence
The clinical notes of Dr Arrudsivah were admitted into evidence following an Application to Admit Late Documents dated 2 September 2009 filed by Mr Harwood’s solicitors. The documents that were produced in answer to a Direction for Production addressed to Dr Arrudsivah appear to be a complete record of all Mr Harwood’s treatment by a number of doctors including Dr Arrudsivah at the Hay Surgery. The notes indicate that Dr Van Vu saw Mr Harwood on 17 November 2003, apparently for the first time. Dr Vu noted:
“#1. 2 months of abdo pain, heart burn.
on/off diarahe [sic] no weight loss.
#2. some short of breath on walking
#3. 15 years of right neck/shoulder pain/right arm, on-off after MVA.”
A discussion was recorded in the notes regarding the patient’s drinking habits and various medications were prescribed and investigations ordered for unrelated conditions. Mr Harwood was prescribed Panamax tablets 500 milligrams 2 q.i.d “to take panamax for neck pain, (avoid NSAID at this stage due to stomach problems)”.
Mr Harwood was seen at the Hay Surgery on four occasions throughout 2004 and on five occasions throughout 2005 for various complaints. There were apparently no consultations recorded in 2006.
In respect of the subject accident the doctor’s records note the following:
“Wednesday January 24 2007 10:27
Dr Shrivaney Arrudsivah
state developed pins & needles while driving a truck on 18/01/07 & state he could recall that he carried a cylinder & put that one one [sic] the truck prior to this problem & nil other injury.
state discomfort to left arm with on & off pins and needle.
nil weakness,
o/e
nil tenderness over the cervical spine.
? mild tenderness over the lt. trapezius.
tone, power & sensation & reflexes to lt. UL–all normal.
Phalen & Tinnel sign – wer [sic] negative,
Impression
pins & needles subjective_?? cause.
Recent initiation of antidepressant for his clinical depression.
plan
happy to do his usual work.
initial certificates was given.
adviced [sic] reg. 10 days of NSAID in case any irritation to nerves.
r/v on 2/2/07”
The notes record that Mr Harwood was seen at very regular intervals throughout 2007 and 2008 for the management and treatment of his neck, shoulder and right arm.
Dr Arrudsivah provided three WorkCover medical certificates.
In the first, dated 24 January 2007 she noted the following history, “noticed some pins and needles in the left arm while driving the truck at work”. She provided a diagnosis of “pins and needles in the left arm”.
Dr Arrudsivah’s second certificate dated 12 February 2007 recorded the following history, “lift a heavy gas cylinder onto the truck before driving the truck on 18/1/07 and noticed pins and needles in the left arm while driving”. She then diagnosed a “possible neural impingement at C5/6 and C6/7 level”.
The third certificate also dated 12 February 2007 is identical to the second except in respect of the restrictions placed on the worker, which had been amended from “not allowed heavy lifting” to “should avoid heavy lifting as the patient would like to continue the pre-injury duties”.
Dr Pell, who first saw Mr Harwood on 20 September 2007, obtained a history that he injured himself in January 2007 lifting a gas cylinder onto a truck. The pain was in his shoulder and back. He had left sided neck pain from the ear to the left shoulder and aching in the left biceps and pins and needles in the left thumb and index finger. He had pain running down the spine to the mid thoracic area and around to the left posterior chest wall. Dr Pell reviewed the MRI scan, which he noted showed degenerative changes at C5/6 and C6/7 with exit foraminal narrowing on the left side at these levels. He recommended a left C5/6 and C6/7 facet joint injections.
In a report addressed to Mr Harwood’s solicitors dated 5 December 2007, Dr Pell expanded on the history he obtained stating:
“…the injury occurred on 18 January 2007 whilst employed by Roads and Traffic Authority. He was lifting a heavy gas cylinder thought to weight about 45 kilograms onto the back of a truck.”
Dr Pell noted that a cervical spine x-ray dated 6 February 2007 showed no fracture or malalignment of the vertebral bodies. There was narrowing of the C5/6 disc space and C6/7 disc space with osteophytic spurring. There was narrowing of the exit foramen bilaterally at C5/6. He also reviewed MRI scan of cervical spine performed on 31 May 2007. This showed mild central disc bulge at C5/6 which flattened the thecal sac but without pressure on the spinal cord and there were no abnormal signals within the cord. There was exit foraminal narrowing bilaterally, worse on the left at C6/7 and there was a broad based disc bulge extending into the left dural exit foramen with exit foraminal narrowing on the left.
Dr Pell diagnosed disc protrusion at C5/6 and C6/7. In terms of causation he said:
“given the causal relationship between the accident of January 2007 and the onset of symptoms, these would be considered as a causal relationship from the accident.”
Dr Pell denied any knowledge of any prior x-rays or history of any pre-accident complaints of neck pain or back pain. He accepted the obvious evidence of pre-existing degenerative changes on the MRI scan but noted there were no symptoms related to those pre-existing changes before the accident. He recommended Cortisone injections, but if they failed to settle the pain, he recommended Mr Harwood undergo a nerve root compression decompressing the C6 and C7 nerve root. Dr Pell estimated the cost of the surgery at $4,733.20. He stated that prognosis was difficult with only one consultation but following cervical surgery there may be a resolution of the symptoms and he may be able to return to pre-injury activities including motorcycle riding.
Dr Pell prepared a further report dated 15 January 2009. He reviewed Mr Harwood on 16 September 2008. He noted that Mr Harwood was still suffering from neck pain, left arm pain and pain radiating up and down his spine. Facet joint injections had not assisted. He confirmed his recommendation that the worker should submit to a cervical foramenotomy at C5/6 and C6/7 on the left side decompressing the left C6 and C7 nerve roots. In terms of causation Dr Pell stated:
“I believe the incident of 18 January 2007 lifting a gas cylinder onto the back of a truck to be the main substantial contributing factor to his current condition and the need for surgery.”
The RTA relied on a report of Dr Paul Hitchen, orthopaedic surgeon, dated 15 August 2007. Dr Hitchen recorded the following history in respect of the injuries sustained on 18 January 2007:
“He opted to lift a 45 kg gas bottle from the ground onto the tray of his truck. While doing so, he developed sudden onset of neck pain, with shooting pain down the left arm. As the hours went by, he noted onset of pins and needles affecting his left index finger and thumb. He felt his left arm was weak.”
Mr Harwood told Dr Hitchen that he could not recall any previous problems with his neck. After undertaking a physical examination and reviewing the radiological investigations, Dr Hitchen concluded that Mr Harwood suffered from degenerative cervical disc disease with non-verifiable radicular pain in the left arm. In his opinion, Mr Harwood suffered a soft tissue strain to the neck and a transient aggravation of symptoms arising from the underlying degenerative process. He accepted, given the mechanism of injury, that employment was a substantial contributing factor to the transient neck strain, which he thought would have resolved within 6 weeks, with any persisting problems being due to the underlying constitutional process. He stated “it follows employment is not a substantial contributing factor to his persisting symptoms” (emphases added).
Dr Hitchen recommended that Mr Harwood be permanently restricted to lifting no more than 15kg but stressed that this was not due to his work injury but was due to the degenerative nature of his neck condition. With respect to future treatment Dr Hitchen agreed that if the injection of local anaesthetic steroid was unsuccessful and if he developed “full blown radiculopathy” then surgery would need to be considered.
ARBITRATOR’S REASONS
The Arbitrator:
(a) was satisfied that Mr Harwood was injured whilst lifting a gas cylinder onto his truck on 18 January 2007 which was the “precursor” to the onset of subsequent pins and needles in his left arm experienced whilst driving the truck;
(b) accepted Mr Harwood as a witness of truth and Mr Harwood’s evidence without qualification, which was consistent with the WorkCover medical certificate ([20] of his Reasons);
(c) found that the absence of a recorded history of complaints of back [neck] pain in 2003 in the reports of Dr Hitchen and Dr Pell was not of sufficient magnitude to justify diminishing the weight that would otherwise be attached to their reports;
(d) found that the worker had engaged in heavy manual work for two years into his employment with the RTA before making complaints of right-sided neck and shoulder pain to Dr Vu in November 2003. He noted that for four years after, between 2003 and 2007, Mr Harwood was able to continue driving his truck without any complaint of neck pain;
(e) concluded (at [23]of his Reasons) that the injuries sustained by the worker were either, as a consequence of the lifting incident on 18 January 2007, or in the alternative, were attributable to the nature and conditions of his employment with the Respondent up to that time;
(f) accepted that the worker had a pre-existing degenerative condition in his neck, but that his current symptoms were due to an aggravation caused on 18 January 2007 or as were “the catalyst for the onset of his current symptoms”, and
(g) was satisfied that the injury was caused during the lifting or subsequent driving of the truck, and in either case, the requirements of section 9A were satisfied.
SUBMISSIONS
RTA
I have had regard to the RTA’s submissions and supplementary submissions which may be briefly summarised as follows:
(a) The worker’s evidence regarding his accident on 18 January 2007 and the immediate onset of pain in his neck with shooting pain down the left arm, was false and should not be accepted. It was inconsistent with the clinical records of Dr Vu and inconsistent with the worker’s account of the accident to Dr Arrudsivah.
(b) The Arbitrator failed to address the question of the worker’s credit. The worker gave untruthful evidence and should not be accepted.
(c) The history taken by Dr Pell was not supported by the evidence and therefore carries no weight; (Ramsay v Watson (1961) CLR 642; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 75 (‘Makita’); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 and Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 (‘Hevi Lift’)). The absence of the history of recorded neck or back pain was a critical factor in Dr Pell’s conclusions. His opinion amounted to no more than an ipse dixi.
(d) The Arbitrator placed insufficient weight on the history of prior injury contained in Dr Vu clinical notes, which was not denied by the worker.
(e) The Arbitrator erred by addressing the question of ‘injury’ when it was not in issue.
(f) The Arbitrator erred by speculating what the experts might have concluded had they been given an accurate history.
(g) The three WorkCover certificates are consistent with the record of Dr Arrudsivah that the symptoms occurred while driving not while lifting.
Mr Harwood
After reciting the relevant statutory provisions and a paragraph by paragraph “analysis” of the Arbitrator’s decision, Mr Harwood submitted that for the following reasons there was a clear line of causation between the accident of 18 January 2007 and the need for surgery:
(a) He had been in continuous employment with the RTA since 2001, which involved regular heavy work including lifting gas bottles.
(b) After providing his GP with a history on 17 November 2003 of intermittent pain on the right side of the neck and shoulder over 15 years there were no further attendances on his general practitioner for any further treatment.
(c) His evidence that he injured himself lifting the gas bottle should be accepted. Injury was initially accepted by the insurer but was subsequently declined on the basis of Dr Hitchen’s report.
(d) After the accident on 18 January 2007 he required regular medical treatment for left sided neck pain with radiation of pain into the left shoulder/arm. The worker’s complaints are consistent with the MRI scan, which is suggestive of pathology on the left side of the neck.
(e) The history provided a fair climate for the acceptance of Dr Pell’s opinion, which was compelling as to the issue of causation.
DISCUSSION
The RTA’s section 74 notice was ambiguous. It stated inter alia:
“we wish to notify you that your employment is no longer a substantial contributing factor to your injury/current condition.” (emphasis added)
Section 9A requires that employment must be substantial contributing factor to the injury. There is no requirement that employment be a substantial contributing factor to ongoing incapacity or to the need for medical treatment (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 733(‘Rootsey’). Once injury is established a worker must then establish that his or her incapacity or need for medical treatment has resulted from the injury Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
It is perhaps unsurprising that the notice was defective because the medical report from Dr Hitchen, on which it was based, also misconceived the requirements of section 9A. Dr Hitchen accepted that Mr Harwood was injured on 18 January 2007. He accepted that Mr Harwood sustained an injury in the nature of a strain to his neck to which his employment was a substantial contributing factor to that injury. He added however, that the strain should have resolved within 6 weeks and therefore, any continuing problems thereafter were due to the underlying constitutional process. Dr Hitchen’s opinion that the worker’s employment was not a substantial contributing factor because the employment was no longer related to the persisting symptoms, misconceived the requirements of the section (Rootsey).
The section 74 notice and the Reply also put “causation” and “section 60” in dispute. It is apparent from the transcript that the matter proceeded before the Arbitrator on the basis that there was a dispute concerning whether the proposed future treatment required by Mr Harwood resulted from the injuries he received on 18 January 2007.
Essentially, the RTA’s submission was that Mr Harwood cannot be accepted as a witness of truth. His evidence that he injured his neck during the lifting incident on 18 January 2007 should not be accepted and therefore no weight should be attached to the report of Dr Pell, which relied on that history.
It follows therefore that in order to weigh that submission it is necessary to first determine whether the worker should be accepted on his evidence as circumstances of his injury. The Arbitrator had the advantage of observing Mr Harwood give evidence at the arbitration hearing. Whilst the Arbitrator did not say so in terms, it is clear that he accepted the worker as a witness of truth. He accepted that the incident of 18 January 2007 took place in the circumstances described by Mr Harwood and he was satisfied that this was precursor to the onset of pins and needles experienced by the worker whilst driving the truck ([20] of the Arbitrator’s Reasons).
The worker was pressed in cross-examination as to the circumstances of his injury on 18 January 2007. Whilst conceded that he had no independent recollection of precisely what he told Dr Arrudsivah, he clearly recalled telling the doctor he injured myself whilst lifting the gas cylinder and by the time he drove the fuel truck to the destination he was in excruciating pain. It was only when the symptoms persisted that he sought treatment.
The RTA submitted that the entry in Dr Arrudsivah’s clinical notes in respect of the subject accident is inconsistent with Mr Harwood’s evidence. I reject the submission. There is no report in evidence from Dr Arrudsivah to explain the history she obtained. However, whilst the entry commenced with the history of pins and needles whilst driving the truck, it also recorded that Mr Harwood told the doctor that prior of the onset of the pins and needles he had placed a cylinder onto his truck. That is entirely consistent with Mr Harwood’s evidence and is consistent with the history he gave Drs Pell and Hitchen. It is also consistent with the signed claim form.
I attach no weight to the ‘accident log’ attached to the Reply. The document has not been signed or adopted the worker. It is inconsistent with Mr Harwood’s evidence. There is no evidence before me that the history it contains has come directly from the worker or is merely an interpretation authored by some unidentified person and for unexplained reasons. The RTA has made no attempt to lead evidence or to explain how the document came into existence or its significance.
For these reasons I accept Mr Harwood’s evidence that he injured his neck, left shoulder and left arm on 18 January 2007 whilst lifting a heavy gas cylinder from the ground on to his truck.
The RTA makes much of the fact that the clinical notes produced by Dr Arrudsivah contain a brief extract from Dr Vu concerning Mr Harwood’s consultation with Dr Vu on 17 November 2003 (see [56] above). That entry records, inter alia, a fifteen-year history of intermittent right-sided neck pain, shoulder pain and right arm pain after a motor vehicle accident. There is no evidence before the Arbitrator or before me that the nature and extent of any injuries suffered by Mr Harwood in the motor vehicle accident. Mr Harwood frankly conceded that he may have given the history recorded but did not recall doing so. His explanation for not providing the doctors with a history of any prior complaints of neck pain was because the pain he experienced after the accident on 18 January 2007 was more severe, than he had previously suffered (T8.55). He stated that he had not seen a doctor for neck pain other than on that one occasion.
When Mr Harwood saw Dr Vu in 2003 he was prescribed Panamax tablets. Although the notes disclose that Mr Harwood regularly attended the same surgery and saw a number of different doctors there on numerous occasions between 2003 and 2007, he made no further complaints of neck pain and did not seek any further treatment or medication for it.
The RTA submits that Dr Pell’s report carries no weight because the absence of a history of previous complaints of neck or back pain was a critical factor in Dr Pell’s conclusion regarding causation. The RTA further submits that the absence of a complete history, including in particular the history of previous neck and back pain renders his opinion as to causation a mere ipse dixit and of no weight. I reject that submission for the following reasons:
(a) Dr Vu’s entry of 17 November 2003 records intermittent pain with the right neck and shoulder, whereas, following the injury on 18 January 2007, Mr Harwood complained of pain in the neck, left shoulder and left arm.
(b) Mr Harwood’s evidence was that the nature and intensity of the pain arising from the motor vehicle accident were less “extreme” than the pain from which he now suffers.
(c) Apart from the one isolated entry in 2003, Mr Harwood did seek any other medical treatment for injuries sustained in the motor vehicle accident(T9.11), notwithstanding he visited his doctor regularly and therefore had the opportunity to do so.
(d) No evidence has been led by the RTA as to the nature and extent of any injury suffered by Mr Harwood as a result of the motor vehicle accident, yet the RTA was clearly on notice of it, having had access to the clinical notes from the Hay surgery prior to the hearing.
(e) Mr Harwood had been in continuous employment for at least 12 years before he commenced employment with the RTA in 2001, working as a driveway attendant at a service station and as a motor mechanic. There is no evidence that he was incapacitated during any of this period by reason of the effects of the injuries sustained in the motor vehicle accident.
Whilst it is undeniable that Dr Pell did not have a history of any prior injuries, I do not consider that that is fatal to the acceptance of his opinion. Even though the facts proven do not correspond with complete precision to the facts relied upon by Dr Pell, I am satisfied that those facts provided a “fair climate” for the acceptance of his opinion (see Paric v John Holland Construction Pty Ltd [1984] 2 NSWLR 505).
As to whether Mr Harwood continues to suffer from the effects of the injuries sustained on 18 January 2007, I prefer the evidence of Dr Pell to Dr Hitchen.
Whilst Dr Hitchen accepts that Mr Harwood suffers from degenerative disc disease, which may have been aggravated by the injury, he fails to explain why the aggravation should be considered to be a “transient aggravation of the symptoms”. The fact is that Mr Harwood was completely asymptomatic in respect of any left sided radicular prior to the accident. His evidence, which I accept, is that he suffered radicular pain almost immediately after the accident and has continued to suffer neck and left sided radicular pain ever since.
Dr Hitchen considered the demonstrated pathology in the cervical spine was due to disc disease and the consequences of it, however, he failed to explain why the radiological changes should not be considered to have been traumatically induced, particularly when the symptoms of pain and pins and needles in the arm occurred immediately after the injury, which he accepted had occurred.
For these reasons, I prefer the evidence of Dr Pell to Dr Hitchen as to the nature of the injury sustained by Mr Harwood and its consequences. I accept Mr Harwood suffered disc protrusions at C5/6 and C6/7 as a consequence of the injuries sustained by him on 18 January 2007 when lifting a gas cylinder on to a truck, and I accept that the need for surgery is causally related to the injuries.
DECISION
Leave to appeal the decision of the Arbitrator dated 15 October 2009 is refused.
COSTS
The Appellant to pay the Respondent’s costs.
His Hon. Judge Greg Keating
President
11 March 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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