Roads and Traffic Authority of NSW v McNally
[2006] NSWWCCPD 359
•20 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Roads and Traffic Authority of NSW v McNally [2006] NSWWCCPD 359
APPELLANT: Roads and Traffic Authority of NSW
RESPONDENT: Anne McNally
INSURER:1. GIO Workers Compensation (NSW)
Limited on risk for Roads and Traffic Authority of NSW for the period of 01.11.88 to 30.06.89.
2.Roads and Traffic Authority of NSW as self-insurer for the period of 01.07.89 to 21.03.01.
FILE NUMBER: WCC12593-05
DATE OF ARBITRATOR’S DECISION: 28 October 2005
DATE OF APPEAL DECISION: 20 December 2006
SUBJECT MATTER OF DECISION: Whether claim made in compliance with section 65(7) of the Workplace Injury Management and Workers Compensation Act 1998; whether employment was a substantial contributing factor to injury pursuant to section 9A of the Workers Compensation Act 1987, and whether worker unfit for work with the Appellant.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Thompson Cooper Lawyers
Respondent: McCabe Partners, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 28 October 2005, is confirmed
The Roads and Traffic Authority of NSW, the Appellant, is to pay the costs of appeal of Anne McNally, the Respondent.
BACKGROUND TO THE APPEAL
Ms Anne McNally, the Respondent Worker, was employed as a secretary/receptionist by the Roads and Traffic Authority of NSW (‘the RTA’), the Appellant, from 1 November 1988 to August 2001. Ms McNally has a history of back problems and was diagnosed with scoliosis at 17 years of age. In 1993 she underwent back surgery with limited success. In March 2001 Ms McNally underwent a second operation on her back. She was unable to return to her pre-surgery duties and resigned from her employment with the RTA in July 2001, effective from 2 August 2001.
During the course of her employment with the RTA, Ms McNally states that she performed work involving repetitive bending and lifting of heavy weights. She claims that she suffered degeneration of her back with pain radiating down the right and left legs, and injury to her neck with pain radiating down the left and right arms. She claims that her employment as a secretary/receptionist with the RTA was a substantial contributing factor.
On 12 January 2005 Ms McNally made a claim for workers compensation of weekly benefits, section 60 medical expenses, permanent impairment and pain and suffering. The RTA did not respond to Ms McNally’s claim.
On 28 July 2005 Ms McNally lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission. The basis of her claim is that she suffered injuries to her back and neck as a result of the “nature and conditions” of her employment with the RTA from 1 November 1988 to 21 March 2001. She claims compensation by way of weekly benefits, and payment of compensation for medical expenses, permanent impairment and pain and suffering.
An arbitration hearing was listed for 28 October 2005 at which the Arbitrator delivered an ex tempore decision. She subsequently issued a ‘Certificate of Determination’ and a brief ‘Statement of Reasons for Decision’.
On 21 November 2005 the RTA lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against the Arbitrator’s decision. Ms McNally provided submissions in reply dated 25 January 2006. Ms McNally’s legal representatives, for some reason, failed to comply with the requirements of Rule 77 of the Workers Compensation Rules 2003, which then applied, in responding to the RTA’s Appeal. However, Ms McNally raised nothing new and merely commented upon the grounds of appeal that had been lodged in the Commission and served upon her. While compliance with the Rules is routinely a mandatory requirement, no injustice arises and the RTA has suffered no disadvantage or prejudice. In the circumstances compliance with the Rules, in this regard, is dispensed with, on this occasion.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 28 October 2005 records the Arbitrator’s determination as follows:
“1. That the Respondent pay weekly compensation [sic] the Applicant;
a) from the 21 March 2001 to the 26 September 2001 at the rate of $1034.54 under s36 of the Workers Compensation Act 1987 and
b)from the 26 September [sic] to date at the statutory rate under s40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the Act.
2.That the Respondent pay the Applicant’s s60 of the Workers Compensation Act 1987 expenses up to the sum of $3,019.25 upon the production of accounts, receipts or HIC Notice of Charge.
3.That this matter be referred, in accordance with the referral in the file, to an Approved Medical Specialist for assessment of the Applicant’s claim for permanent impairment.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute before the Arbitrator were:
(1)whether Ms McNally made the claim within the requisite period pursuant to section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and
(2)whether Ms McNally suffered an “aggravation, acceleration, exacerbation or deterioration” of her disease, pursuant to section 4(b)(ii) of the 1987 Act and if so, was her work with the RTA a substantial contributing factor to her condition.
The issues in dispute in the appeal are:
(1)that the Arbitrator erred in finding that Ms McNally gave the requisite notice of her claim pursuant to section 65(7) of the 1998 Act;
(2)that the Arbitrator erred in finding that her employment with the RTA was a substantial contributing factor to Ms McNally’s condition, and
(3)that the Arbitrator erred in finding that Ms McNally was unfit for work with the RTA .
ON THE PAPERS REVIEW
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.”
The RTA submits that the appeal can be determined on the basis of what is contained in ‘the papers’. Ms McNally is silent on this issue.
Having regard to the submissions, the transcript, the evidence and the 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 TO APPEAL
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 amount of compensation at issue on appeal exceeds $5,000 and the amount of compensation at issue in the appeal is greater than 20% of the amount awarded in the decision appealed against. Consequently, sections 352(2)(a) and (b) of the 1998 Act are both satisfied.
The appeal was lodged on 21 November 2005, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
The powers of a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit to the same Arbitrator or a different Arbitrator for determination in accordance with a decision of or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 (‘Mayne’)). Gleeson CJ highlighted the general principle in Swain v Waverley Municipal Council (2005) 213 ALR 249 (‘Swain’). His Honour said: “The question for an appellate court is whether it was reasonably open to the jury [in this case, the Arbitrator] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Finally, it must be such that but for the error, a different decision would likely have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
SUBMISSIONS & EVIDENCE, DISCUSSION AND FINDINGS
Did the Arbitrator err in finding that Ms McNally made her claim within the requisite period pursuant to section 65(7) of the 1998 Act?
In its appeal submissions the RTA relies on sections 65(7) and 65(13) of the 1998 Act in relation to the ‘requisite notice of claim’ in this ground of appeal.
Ms McNally submits that it was agreed by both parties before the Arbitrator that the issue of ‘requisite notice of claim’ should be dealt with under the provisions of section 259 of the 1998 Act. While addressing Counsel for Ms McNally, the Arbitrator states at page 2 of the transcript of proceedings (‘transcript’): “…probably it’s more [section] 259 than [section] 61 that you’d need to address me on”.
This was confirmed at page 23 of the transcript by RTA’s Counsel who stated: “[T]he preliminary issue first as you rightly observed because of the timing when the claim was made – that’s [sic] section 254 onwards that govern the notice of claim provisions…if she is to succeed in getting around those claim provisions she must get herself within [sic] for the purpose of the notice provisions [sic] section 254 subsections (2) and (3).”
Ms McNally was employed by the RTA from 1 November 1988 to August 2001. Ms McNally claims that the date of injury should be taken to be 23 August 2003 being the date upon which she became aware that she suffered injury pursuant to section 261(6). Sections 61-64 of the 1998 Act apply in respect of an injury received before the commencement of section 60A, inserted in the 1998 Act by the Workers Compensation Legislation Amendment Act 2001. Sections 65 and 66 apply in respect of making a claim before the commencement of section 60A. The formal claim was not made until 12 January 2005. Little if anything turns on the distinction between the various provisions, and as noted in paragraphs 20 and 21 above, there was agreement before the Arbitrator that section 259 of the 1998 Act onwards comprised the appropriate sections to be relied upon. Reference has been made to both “sets” of sections by the parties in their submissions. I have followed the approach suggested by the Arbitrator and Ms McNally, and agreed by RTA, for the purposes of this appeal. In any event, this is the correct approach, notwithstanding that some reference to both “sets” is made, at times.
Section 261(1) of the 1998 Act provides:
“Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death
Section 65(7) of the 1998 Act provides:
“Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months of the date of death.”
On appeal the RTA asserts that Ms McNally breached the provisions pursuant to section 65(7) and in addition provided insufficient or inadequate evidence to satisfy the exceptions contained in section 65(13) of the 1998 Act, which provides:
“The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”
At page 11 of the transcript Ms McNally’s Counsel submits that when Ms McNally resigned from her employment with the RTA:
“… she had no idea that she was entitled to make a claim, given the fact that she had a pre-existing back problem which predated her commencement of employment with the RTA … I think you would find it quite easy to accept that other than a person with some experience or legal training, the provisions of sections 15 and 16 of the Workers Compensation Act, which in some ways contain quite arbitrary means of attaching liability, would never cross the mind of an injured worker…”
Ms McNally asserts at page 12 of the transcript that the first date upon which she was capable of being aware of her injury was the date that Dr Patrick’s report became available, which was 23 August 2004. It is submitted that this date became the relevant date in respect of the notice provisions pursuant to section 261 of the 1998 Act - not for the purposes of sections 15 and 16 of the 1987 Act. Ms McNally further argues at page 13 of the transcript, that as the letter of claim was dated 12 January 2005, there was no failure to make the claim within the requisite period, and further submits that the Arbitrator therefore did not need to exercise any of the judicial discretions given to her under this section.
In responding to the appeal (and in light of what is set out in paragraphs 19-22 above), Ms McNally states that the issue of the claim notice provisions should be made pursuant to section 261(6) of the 1998 Act, which provides:
“If an injured worker first becomes aware that he or she had received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
In its submissions before the Arbitrator, the RTA asserts at page 23 of the transcript:
“[I]f one goes to section 261(4), the applicant effectively is either trying to rely on ignorance, mistake or other reasonable cause, and ignorance is what’s raised in the statement. She says that she didn’t know about the availability of relief in circumstances where she has an aggravation of a disease at work.”
At this point of the arbitral proceedings Counsel for Ms McNally denied that this submission was ever made on behalf of Ms McNally and reiterates that Ms McNally made the claim within time (pursuant to section 261(6) of the 1998 Act).
The RTA submits at page 27 of the transcript, “in the context of a worker who works in a managerial capacity and who has had a prior claim accepted by the same employer for a frank incident, it becomes, in my submission, more difficult to accept the excuse which is given for the non-making of a claim and the non-reporting of the injury.” RTA further submits in its submissions on appeal that Ms McNally gave no notification of the claim until 2005 because in fact she did not consider that her work was related to her back injury and her surgical procedures in 1993 and 2001.
The Arbitrator makes the following finding at page 56 of the transcript:
“I find that she does come within the exception of 261(6). I find that the fact that she filed a prior claim for a frank injury – for a motor vehicle accident, in fact, in the course of her employment – doesn’t mean that she understood the disease provisions of the Workers Compensation Act.”
That finding accords with Ms McNally’s submission that there was in fact, no “late notification” because, “As notice of claim was made on behalf of the worker on 21 January 2005, it was made within the time prescribed by the section. The arbitrator so found and was therefore not called upon to exercise any of the judicial discretions given to her by s.261.”
However, the RTA submits that it has suffered prejudice as a result of Ms McNally’s late notification of her claim. Specifically, it says that it has suffered prejudice because Dr Naker’s notes, which were recorded some years ago, have now been destroyed. Dr Naker was Ms McNally’s treating doctor from 1982 to 1991, followed by Dr Rothwell and then Dr Miller, who retired in December 2004.
There is no dispute that Ms McNally has a history of significant ongoing problems and treatment over a considerable period of time. While Dr Naker’s notes would undoubtedly have been relevant, the absence of those notes is not determinative of this particular ground of appeal. The matter proceeded before the Arbitrator on the basis of the evidence that was available to and put by the parties to the proceedings. Nothing that Ms McNally did was prejudicial to the RTA.
The observations and findings of the Arbitrator in relation to the issue, the subject of this ground of appeal are set out at pages 55 to 57 of the transcript of the arbitral proceedings. There is no requirement to repeat them here. However, the point of the issue is contained in the following extract:
“Because the applicant had no idea she was entitled to make a claim based on the disease process, as under sections 15 and 16 of the Act, the 1987 Act, she was ignorant of her rights unless she had a frank injury, that she therefore comes under that exception and that the date on which the time for the claim runs is the date when she first became aware of her rights. It was put to me that the date was the date of the report of her doctor, Dr Patrick, of the 23rd of the 8th ’04. It wasn’t until that date that she knew she had a claim, and once she became aware of that claim, the claim was then put in within the six months on the 12th of the 1st ’05.”
It is clear on the evidence, and accepted by the Arbitrator, that Ms McNally believed that “injury” meant a frank injury. As the RTA acknowledges, she had made a previous claim of frank injury and was familiar with that concept. But “injury” can be more than a frank injury for the purposes of a workers compensation claim. “Injury” also means the aggravation, acceleration, exacerbation or deterioration of any disease, where employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease (Section 4 of the 1987 and 1998 Acts).
While the Arbitrator refers to “when she first became aware of her rights”, it is not strictly speaking, only awareness of Ms McNally’s rights to which section 261(6) refers. However, it follows that ignorance of her rights includes fundamental ignorance of the fact that the definition of “injury” for the purposes of claiming compensation is wider than a frank injury and includes the impact of/on disease, as outlined in paragraph 36. Notwithstanding the assertion of the RTA that she should or might have been aware of it, there is no evidence to support that assertion that she was aware of it. In any event, the fact that she knew what a frank injury is, is not of itself determinative of the fact that she knew anything about the disease provisions of the definition of “injury” or that she had suffered a work-related injury in that wider sense. It follows that Ms McNally could not have known that she had suffered an injury as provided in the disease provision of the definition, when she didn’t know what an “injury” was, according to the wider definition of that term.
In these circumstances, Ms McNally is taken to have received the injury when she first became aware of it, within the meaning and context of the workers compensation legislation.
On the evidence it was reasonable for the Arbitrator to come to the conclusion that section 261(6) of the 1998 Act has application, for the reasons she has given. She rejected the submission by the RTA that Ms McNally did not give notification of her claim until 2005 “because the Applicant did not consider that her work was related to her back injury and her surgeries in 1993 and 2001.” Instead, the Arbitrator essentially found that Ms McNally simply did not know that she had an “injury” within the wider statutory definition of that term, and that she was entitled to make a claim on that basis.
I find no error on the part of the Arbitrator. This ground of appeal is not made out.
Did the Arbitrator err in finding that Ms McNally’s employment with RTA was a substantial contributing factor to her condition?
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing
factor to a worker’s injury merely because of either or both of the following:(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Medical evidence
The RTA submits that the Arbitrator erred in finding that Ms McNally’s employment with the RTA was a substantial contributing factor to her condition and relies upon the medical evidence which was before the Arbitrator to make this ground of appeal, particularly the supplementary report of Dr Pillemer, orthopaedic specialist qualified by the RTA, dated 13 October 2005, in which he concludes:
“There was also a rupture of the L3/4 disc with protrusion which occurred sometime in 2000. I think it is reasonable to suggest that the nature and conditions of her work would have been a contributing factor to this disc protrusion, but in my opinion not a substantial contributing factor, noting that there is no history of any particular incident or injury at the time, and that her work was not physically stressful. The basis of the rupture is far more likely to be due to the underlying congenital and degenerative condition of her back.”
The RTA also refers to the report of Dr Stening, neurosurgeon, dated 9 July 1993, in which he states that he first saw Ms McNally on 28 June 1993 at which time she brought with her a cervical spine x-ray, dated 14 April 1987, which showed multiple congenital fusions. He also notes that a cervical CT scan performed on 11 December 1987 showed “multiple moderate posterior osteophytes, more on the left side”. The RTA submits that these investigations were undertaken prior to the commencement of her employment with the RTA in November 1988 and were evidence that Ms McNally had a prior congenital abnormality of her back. RTA also submits that a further report of Dr Stening dated 11 September 2001 found “although her disabilities are not, on the surface, severe, she has a congenital abnormality of her back which produces a marked curvature, and this requires unusual muscle activity to maintain a normal posture”. I note however, that the Arbitrator found, “So as regards the cervical spine, I don’t find that there is an injury that falls within section 4(b)(ii) of the 1987 Act.” (See page 57 of the transcript).
In response, Ms McNally argues that the “opinions of worker’s own doctors (Stening and Patrick) support her case on causal nexus.” In a report dated 24 May 2005 Dr Stening opines:
“There is a pre-existing congenital scoliosis in her lumbar spine which is responsible for some of her residual back ache which was present for some time even before her first operation. However, there was also a significant work injury in October 2000 where she ruptured an L3/4 disc and much of her back pain is a result of this. I would therefore regard the predominant proportion of her back pain as substantially work related, but there is a proportion which is related to her pre-existing congenital condition resulting in scoliosis.”
Ms McNally also submits that, on a proper analysis, Dr Pillemer’s findings are consistent with the findings of her doctors. It is noted that in his report of 14 March 2005 Dr Pillemer states that he conducted an assessment of Ms McNally pursuant to section 66 of the 1987 Act, and includes his opinion as to the level of reduction that ought to be made for a pre-existing condition or injury pursuant to section 323 of the 1998 Act. He found that after the deduction Ms McNally had a 10% permanent loss of use of the right leg at or above the knee and a 12% permanent impairment of the back. Dr Pillemer found that two fifths of Ms McNally’s back impairment and 100% of the loss of use of the right leg resulted from her work at the RTA. Dr Pillemer concludes in this report that:
“It would seem that Ms McNally did develop disc lesions at the L5/S1 level and also at the L3/4 level of her low back during the period that she was working with the RTA, but I feel that the nature and conditions of her work were fairly light including typing and doing a lot of standing at the counter, which she feels significantly aggravated her symptoms. I would certainly accept that the nature and conditions of her work would have been a contributing factor to her back problems…. In my opinion the nature and conditions of Ms McNally’s work with the RTA between November 1988 and March 2001 would be a contributing factor to her ongoing back problems. She does not have any ongoing signs of neurological deficit in her left lower limb and I would also feel that the nature and conditions of her work would be a contributing factor to her lower limb symptoms as well.”
In a report dated 2 May 2005 Dr Pillemer, while referring to his previous report of 14 March 2005, states:
“As noted in my report incidentally, I have suggested that her work with the RTA is likely to have been a contributing factor but I did not specifically suggest a substantial contributing factor, because I did not feel this was the case.
In addition as noted, I have suggested that it was my opinion that impairment of her left lower limb was due to the nature and conditions of her work with the RTA, on the understanding that she had no previous problems with her left lower limb prior to starting with the RTA. Once again I would need to see her general practitioner’s reports in this regard.
Under the heading “Impairment” I have suggested that two-fifths of her impairment could be due to the aggravation caused by the nature and conditions of her work with the RTA, but this would be giving Ms McNally the benefit of the doubt and noting that I have not seen copies of previous reports of her symptoms prior to joining the RTA.”
In response to the RTA’s submissions, in relation to Dr Pillemer’s reports, Ms McNally argues that:
“whether or not the worker’s employment was a substantial contributing factor was relevantly a question for the Commission not the doctors. Nowhere was the doctor supplied with any direction as to what the term meant in view of the Court of Appeal’s pronouncement in Mercer v ANZ. The fact that the doctor’s response to this invitation is inconsistent with his expressed opinion of 14 March 2004 [sic 5] is testament to the fact that he (understandably) did not apply the correct test.”
While in her ex tempore decision the Arbitrator finds, as regards to the cervical spine, there was no injury that would fall within section 4(b)(ii) of the 1987 Act, she goes on to make the following finding at paragraph 58 of the transcript:
“I’ve looked and read the evidence and looked at it carefully, and I accept that the overall work conditions did contribute to an exacerbation, acceleration or aggravation of the lumbar spine condition and that it does fall within section 4(b)(ii) of the 1987 Act”.
In coming to this decision the Arbitrator states at page 57 of the transcript:
“ … I think there is evidence of aggravation to the pre-existing condition. All doctors – at least by [inaudible] ’93, all doctors, at least post ’93, all of the doctors attribute some of her conditions, or some of her impairment to the nature and conditions of work.
Dr Pillemer, for the respondent, says there is – it is a contributing factor from her work, but not a substantial contributing factor. He bases this on a history of her duties that she undertook, and he also says that there’s no work-related injury, no history of work-related injury”.
The Arbitrator then goes on to make the following statement at page 58 of the transcript:
“… she had a congenital problem and she had spondylitic reactions in 1990. Well that’s only two years after she started work, and at that stage there’s probably no real contribution from the employment. I think it’s a longer term thing. But it’s a very unstable, it seems to me, [sic] spine that she has, and although there’s no specific frank injury, I find that there are many examples of work, the nature and conditions of work which would be sufficient to contribute to what [inaudible] [sic] say.”
Co-worker’s evidence
The RTA, pursuant to section 9A of the 1987 Act, challenges the nature of Ms McNally’s employment duties. However, it is submitted by Ms McNally that in this regard the Arbitrator accepted the matters of fact set out in Ms McNally’s statement, which was corroborated to by her RTA co-workers “Vanderberg” [sic] and “Mawby” [sic].
The Arbitrator refers to the statement of Ms Wilma van den Burg, Manager of the Deniliquin branch of the RTA, dated 2 March 2005 in coming to her decision, and notes at page 58 of the transcript:
“Some lifting. The plates up to eight kilograms, not done all the time. It was not repetitive or anything like that, but it is recalled by the statement from Ms Vandenberg [sic]. She also recalls the long shifts coming in, the 12 hours. I think 12 hours might have sort of contributed to someone in such an advanced state of health concerning the spine.
There’s also – Ms Vandenberg recalls bulk stationery having to be taken out by people – by the applicant, and given the applicant’s position to other places, this would involve some lifting”.
A perusal of the Ms van den Burg’s statement reveals the following comments:
“7.I can’t recall if there was any specific aspect of her duties that caused Anne any discomfort and I am unable to recall when during the course of her shift she would mention her discomfort. It was normal then and to date for the manager to work 12 hour shifts with a 30 minute lunch break with coffee breaks available ‘on the run’ and comfort toilet breaks as required.
…
9.Although principally employed as a manager when not engaged in those duties Anne also worked at the counter engaged in customer service duties. As such, when working at the counter she had the option of working in either a seated or standing position. The branch closed at 4.00pm with some staff leaving at 4.20pm. Thus after that time Anne may have performed clerical duties inline with her managerial role.
…
16.I have no recollection of Anne having loaded any boxes of stationery into her private vehicle, however, I can confirm that once the delivery of the cartons is normally conducted by the driver testers to deliver stationery to the other RTA agencies in the nearby townships of Barham, Moulamein and Moama. …On an annual basis the manager or a delegate is required to conduct an audit known as “ANVIS” audit at various car dealerships … it may require that about 2 cartons of registration plates together with about 1 carton of stationery are utilised.
17.At the time of Anne working at this branch there was no trolley available for her use and to date, there is still no trolley at branch.
18.In either event, once again, had Anne requested or asked for any assistance in carrying any cartons or boxes it would have been provided to her”.
In her statement dated 31 March 2004 Ms McNally makes the following statements in relation to her time as a manager with the Deniliquin branch of the RTA:
“70.I had to do a lot longer hours when in Deniliquin. I would work from 8:00 am to 7:00 pm regularly. Generally, I would work on the counter all day and then after office hours, I would do my office work and ensure all the paperwork was up to date.
…
72.While at Cootamundra (and occasionally at Deniliquin) I would also load the stationary into my car and take it to other offices/agencies. I would then unload the boxes and take them into the building. I did not have a trolley to move the boxes and would carry them one at a time. There would often be several boxes and this meant I would make several trips between the car and the building both to load and unload.”
In the same statement Ms McNally makes the following comments in relation to her employment at the Cootamundra branch of the RTA:
“42.Being in a country area, I found that I was doing a considerable amount of truck testing. This meant that I was climbing in and out of trucks which I increasingly found to be difficult.
…
44.During this time at Cootamundra, my right leg would always play up when I was standing, but then it started playing up when I walked. …
45.Sometimes whilst in Cootamundra, I would have to walk from the office to the post office, a journey of approximately 5 minutes. However by the end of the journey, my leg would be completely numb and a couple of times my leg would give out and I would fall over because of numbness.
…
48.I recall that I mentioned my problems with my right leg to my boss in Cootamundra, Mr Heith Moorby”.
The Arbitrator makes the following reference to the statement of Mr Heith Moorby, Manager of Cootamundra branch of RTA (from 1993 to approximately 1997), in the transcript at page 59:
“Mr Mawby [sic] – he recalls complaints about the testing of the trucks. He also recalls that there was something to do about a chair. What this means to me is that there’s – it’s not just what the applicant says. There is support from the statements of the respondent”.
The statement of Mr Moorby, dated 2 March 2005 includes the following comments made in reference to these issues:
“5.She was required to test drivers in their driving proficiency in both sedans and trucks. In this regard, there were 3 driver testers and on average Anne may have conducted approximately 12-15 tests per week both at the branch and offsite at Harden, Temora, Junee and Boorowa. In so doing it required that Anne accompany the driver and thus she would have been required to climb into and out of the various sedans and trucks. In the instance of older trucks, it may have required that she pull herself bodily into the cabins.
6.In or about 1991 the Cootamundra branch, and all branches throughout the state, underwent refurbishment and new counters were installed and chairs/stools provided. I can confirm that the stools at the Cootamundra branch were ergonomic in design and thus were fully adjustable for height and were on a swivel base.
7.I do recall that the stools had a height adjustable footrest ring. There were instances when the ring was broken due to staff standing on it as they sat on the stool and alighted from them and wooden footrests were also provided. I can’t recall when the wooden footrests were obtained and I have no recollection that they were provided due to any specific complaint from Anne.
…
9.I have no recollection of Anne ever having made any specific mention of any difficulty when working at any particular workstation or having fallen over when walking to the Post Office. Attending the Post Office was a daily task and performed by whichever staff member was available. I can also confirm that due to the level of our rapport I believe that had Anne had any specific complaint or been involved in any specific incident she would have brought it to my attention to be addressed”.
The Arbitrator also refers specifically to the evidence of Mr Peter Ramsay, Manager of RTA “Driver Administration” formerly known as “Offence Records” (from 1994 to date) in her ex tempore decision at page 58 of the transcript. The Arbitrator states:
“… 1,200 kilometres a week, and I – that’s a significant amount of driving for somebody. I know it didn’t go on for too long, but it went on for around about a year, I think, and that’s a significant amount of driving for someone that has [inaudible] in that vicinity.”
A perusal of Mr Ramsay’s statement dated 3 March 2005 contains the following statement made in relation to this issue:
“8.Anne performed the court run on a daily basis generally from Monday to Thursday and thus she was provided with a Ford Futura or similar sedan. As such, this may have required that in attending the various courts Anne drove approximately 1200 klms during the week staying overnight at the various localities, however, the vehicle that she drove was in an as new condition as they were replaced once they travelled 40,000 klms. Also it was accepted procedure that after about 3 months the court reporters rotated their runs between the other approximate 5 other court reporters”.
The Arbitrator drew the following conclusion at page 59 of the transcript:
“… it seems to me that there was an ongoing aggravation to the applicant, and I think although the duties may not seem like heavy work, it’s a very, very, very, or quite badly, the spine [sic]. There’s an L3/4 rupture. At about this time after the second operation it’s just been – sorry, it just seems to me that it’s a [inaudible] underlying disease spine and that’s just in duties [inaudible] given are sufficient. I therefore find that section 9A [inaudible] and that work was a substantial contributing factor, at least indicated in the lumbar spine”.
In Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740, the NSW Court of Appeal noted that there may be more than one substantial contributing factor to an injury. In that case, Mason P, with whom Meagher and Beazley JJA agreed, said:
“26.The term ‘substantial’ may have various shades of meaning. Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance as distinct from ephemeral or nominal’ (Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348 per Deane J; Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 at [27]).
27.Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue. Bishop CCJ [at first instance] recognised this. At [29] of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view, that was the correct approach, remembering that word is used in the relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition: cf University of Tasmania v Cane (1994) 4 Tas R 156.”
The issue of substantial contributing factor was discussed in the decision of NSW Police Service v Kehoe [2004] NSWWCCPD 40 in which I stated:
“56. In order to establish that employment was a substantial contributing factor to the injury there must be a causal connection between the injury and the work that the injured worker was required to do (Stanton-Cook v TAFE Commission (NSW) [1999] 17 NSWCCR 632). The degree of causal connection is less than is required to establish that the injury arose out of the employment (Farrelly v Qantas [2001] NSWCC 162). There may be more than one substantial contributing factor, but nevertheless, the employment factor must be substantial and not minor in relation to the other factors (Mercer v ANZ Banking Group Limited [2000] 20 NSWCCR 70, and Dayton v Coles Supermarkets Pty Ltd [2001] 22 NSWCCR 46). In the instant case, it is well established on the evidence that the injury arose in the course of employment; it was connected to the employment, and occurred wholly within the circumstances of employment. The effect of section 9A(3) of the 1987 Act is that a finding that an injury arose in the course of employment is not of itself, determinative. It is however, a relevant consideration (Supair Pty Ltd v Sweeney [2000] 20 NSWCCR 514).”
There is no dispute that Mrs McNally suffered from a disease of the lumbar spine while employed with the RTA.
Having regard to the evidence submitted by both parties, it is established that the injury is in the nature of a disease to which employment was a contributing factor.
Indeed, in summary, the medical evidence of both parties is that employment was a contributing factor to Ms McNally’s injury. The medical evidence put forward by Ms McNally quite strongly supports the proposition that employment is a substantial contributing factor, while Dr Pillemer is not prepared to go that far. In expressing his view, Dr Pillemer notes that there is no history of any particular incident or injury at the time, and that her work was not physically stressful. He opines that, “The basis of the rupture is far more likely to be due to the underlying congenital and degenerative condition of her back.” Nevertheless, he did state in his report of 14 March 2005 that, “I would certainly accept that the nature and conditions of her work would have been a contributing factor to her back problems.” He qualified this statement in his reports of 2 May 2005 and 13 October 2005 by stating that employment was not a substantial contributing factor to her injury, (being the aggravation, acceleration, exacerbation or deterioration of her condition).
Dr Pillemer’s views are somewhat at odds with the medical evidence put forward by Ms McNally. Moreover, his comment that there was no history of any particular incident or injury and that her work was not particularly stressful, would appear to be not entirely consistent with his statement that the nature and conditions of her work would in fact, have been a contributing factor to her back problems. Logically, there must have been something about her work, in Dr Pillemer’s view, that was sufficient for him to conclude that it was a contributing factor to her back problem. Dr Pillemer qualifies his opinion further in stating that he did not have the benefit of any reports of her condition, prior to her employment with the RTA. As a consequence, he was unable to make any comparative assessment, in contrast to the medical opinion and evidence put forward by Ms McNally. In any event, Ms McNally is correct in her submission that the issue as to whether employment was a substantial contributing factor is a legal issue for determination by the Arbitrator, based upon the evidence. Dr Pillemer’s qualified view may carry some weight but it is not determinative of this issue.
While Ms McNally’s co-workers’ statements are equivocal to some extent and in some respects, the Arbitrator has extracted from them in arriving at her decision in favour of Ms McNally. Her co-workers do not necessarily disagree with Ms McNally’s description of her work, but there are some differences of emphasis and detail throughout, and some speculation on what Ms McNally did or did not do in carrying out her duties. For example, Mr Moorby believes that if Ms McNally had fallen in the way she suggests, she would have informed him of this fact. However, he cannot and does not say that in fact, that she did not fall. He attributes his belief to his perception of his working relationship with Ms McNally.
The description of her workplace, her duties, and what she was required to do to carry them out, as accepted by the Arbitrator, are clear enough. In terms of the impact upon her, according to her statement and the claim she has made, the medical evidence before the Arbitrator substantially supports her assertions.
The Arbitrator’s analysis and reasons were quite brief. Ideally, they could have been more detailed and comprehensive. Nevertheless, they are sufficient to understand how and why she arrived at her decision (for discussion see Mayne; Absolon v NSW TAFE [1999] NSWCA 311; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, and Minister for Immigration and Ethnic Affairs v Wu Shu Liang (1996) 185 CLR 259). From a reading of the submissions made in this appeal it is apparent that the parties understood the Arbitrator’s decision based upon the reasons that she gave. In any event, sufficiency of reasons is not in issue in this appeal.
The Arbitrator came to the view that Ms McNally’s employment was much more than a mere transient factor contributing to her condition. She accepted that the work that Ms McNally was involved in, as described by Ms McNally and her co-workers, was a substantial contributing factor to her condition. She also accepted Mrs McNally’s account of the work she did and the impact that it had upon her condition, as substantially supported by the medical evidence.
Based upon the evidence before the Arbitrator in the form of the medical reports, Ms McNally’s statement and the statements of her co-workers, it was open to the Arbitrator, on balance, to draw the conclusion that Ms McNally’s employment with the RTA was a substantial contributing factor to her condition. In this context, I refer to paragraph 18 above in terms of the nature and function of review on appeal, and in particular to the comment of Gleeson CJ in Swain.
In the circumstances, I find no error on the part of the Arbitrator. This ground of appeal is not made out.
Arbitrator erred in finding that Ms McNally was unfit for work with the RTA .
The RTA submits that in the report of Dr R Pillemer, dated 14 March 2005, the view is expressed that Ms McNally is fit for restricted duties. It is argued by the RTA that Ms McNally’s work with RTA fell within these restrictions and therefore she is fit for work. Consequently, it is submitted that she has no entitlement to weekly benefits.
In response Ms McNally repeats the submissions made at first instance with particular reference to section 43A of the 1987 Act, and argues that none of the doctors have expressed the view that Ms McNally was fit for her pre-injury work. In addition, Ms McNally’s credit has never been challenged and was implicitly accepted by the Arbitrator at the arbitral hearing.
In his report dated 14 March 2005 Dr Pillemer made the following observation under the heading ‘Fitness for Employment’:
“I would certainly accept that she is not fit for any type of employment that would place stress on her back at the present time. Ms McNally attended with her husband today, who is suffering from cancer with secondary deposits in his bones, and I feel this is another significant reason why she would not get back to any gainful employment. In my opinion she would only be fit for restricted duties that allowed her to sit or stand at will and did not involve bending or lifting or twisting activities. I would also give her a lifting limit of say 5 kg.”
In a report dated 11 September 2001 Dr Stening gave the following prognosis:
“I would say that she is unfit for duties which involve lifting of any weights, repetitive stooping or even standing at a counter for long periods of time. I would agree that it is reasonable for her to resign from her occupation as she is unable to work for a full shift without developing back pain. I would state that the contributor’s cessation of appointment was due directly to the permanent physical incapacity caused by the congenital spine condition complicated by the disc rupture at the L3/4 level this year. This has led to a degree of spinal instability which makes it very difficult, if not impossible to work productively as a supervisor at the Roads and Traffic Authority.
I would also state that this condition is permanent. It is not likely to improve, but is likely to deteriorate. The deterioration will be slow and not severe, I believe she is too incapacitated to be employed in any remunerative occupation. Part of this would be her age and the history of her back conditions which makes it very difficult for people in her position to satisfy a prospective employer that they are a reasonable employment risk”.
In a further report by Dr Stening dated 24 May 2005 he opined:
“Prognosis and fitness for duties:
I do not believe that there will be any improvement. I do not think that any surgical procedure now will improve her back pain and therefore her current condition is permanent.
I would regard her unfit for all duties because she cannot even sit for periods of time.”
Ms McNally was examined by Dr Patrick at the request of her solicitors. In his report dated 23 August 2004 Dr Patrick remarked:
“She has not worked at all since her last back surgery in March 2001, and I believe she is incapacitated for her pre-injury work.
She has significant ongoing permanent work incapacity in that she is not fit for physical work involving heavy lifting/carrying, frequent bending, prolonged stooping, working in awkward situations, or activities which result in significant jolting/jarring to her spine.
I believe she is incapacitated for her pre-injury work as a customer service operator with the RTA.”
Having accepted that employment was a substantial contributing factor to Ms McNally’s condition, and accepting that she was required to undertake the range of activities in her employment as described by her and her co-workers, I agree with Ms McNally’s submissions that she made to the Arbitrator and on appeal, in relation to this particular issue. I do not agree that the evidence supports that the restrictions in her duties, as claimed, are present. Moreover, Dr Pillemer’s statement does not have the force or substantial effect that is attributed to it by the RTA. The medical evidence clearly supports Ms McNally’s submission that she is unfit to return to duty with the RTA.
There is little basis for this ground of appeal, and consequently, it is not made out.
DECISION
I find no error of law, fact or discretion on the part of the Arbitrator. Consequently, the appeal fails.
The decision of the Arbitrator dated 28 October 2005 is confirmed.
COSTS
The Roads and Traffic Authority of NSW, the Appellant, is ordered to pay the costs of appeal of Anne McNally, the Respondent Worker.
Gary Byron
Deputy President
20 December 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.
ASSOCIATE
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