Roads & Traffic Authority of NSW v Budge
[2006] NSWWCCPD 273
•17 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Roads & Traffic Authority of NSW v Budge [2006] NSWWCCPD 273
APPELLANT: Roads & Traffic Authority of NSW
RESPONDENT: Edward Edgar Budge
INSURER:Treasury Managed Fund
FILE NUMBER: WCC 6224-06
DATE OF ARBITRATOR’S DECISION: 7 August 2006
DATE OF APPEAL DECISION: 17 October 2006
SUBJECT MATTER OF DECISION: Substantial contributing factor to an injury; section 9A of the Workers Compensation Act 1987; weight of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Thompson Cooper Lawyers
Respondent: Steve Masselos & Co, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the Respondent, Mr Budge’s costs in the appeal.
BACKGROUND TO THE APPEAL
On 4 September 2006, the Roads and Traffic Authority of NSW (‘the RTA’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 7 August 2006. The Respondent to the appeal is Edward Budge. The RTA’s workers compensation insurer is the Treasury Managed Fund.
Mr Budge was born on 20 November 1939 and is aged 66. He commenced employment with the RTA in 1996/1997 and injured his back when lifting heavy equipment on 19 August 2004. He notified the RTA of the injury on that day and, on 15 December 2005, lodged a claim for compensation for permanent impairment and pain and suffering. Following the injury, Mr Budge was diagnosed as suffering from multiple myelomas, which his treating Oncologist, Dr Jane Hill, in a report dated 2 December 2004, concluded had weakened the underlying structure of Mr Budge’s vertebrae.
On 21 April 2006, the Commission registered Mr Budge’s ‘Application to Resolve a Dispute’. The RTA’s ‘Reply’ was received on 12 May 2006. On 30 June 2006, the Arbitrator conducted a teleconference with the parties, following which, on 3 July 2006, the RTA lodged an ‘Amended Reply’.
On 17 July 2006, the Arbitrator conducted an arbitration hearing, following which, on 7 August 2006, he made his decision in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 7 August 2006, records the Arbitrator’s orders as follows:
“1. I find that employment with the Respondent is a substantial contributing factor to the injury.
2. The matter is referred to AMS for consideration of s 66 entitlement. The Registrar is to appoint an expert from the Panel to examine the Applicant.
3. The appointment is to be in Sydney.
4. All material attached to the Applicant [sic] and Amended Reply is to be forwarded to the AMS together with a copy of my Statement of Reasons.
5. The Respondent is to pay the Applicant’s costs to be assessed if not agreed. I note there was no conciliation as it was clear the matter could not resolve. In the circumstances I certify this as a complex matter, involving a serious question of law to be determined.”
In the Statement of Reasons for his decision, the Arbitrator noted that pursuant to Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’), it is clear there may be more than one substantial contributing factor to an injury. He also noted Dr Hill’s final comment that, in her opinion, the vertebral fractures may not have occurred if Mr Budge had not attempted to lift the heavy equipment at work, was “of significant consequence”. The Arbitrator concluded (paragraph 33) that while:
“the bone structure had been weakened by the multiple myeloma and that with time (now or in the indefinite near future) there would have been in any event bone pain and similar crush fractures, the fact of the matter is that these fractures were caused by the lifting incident at work. As such employment was a contributing factor to the injury.”
The Arbitrator then reiterated (paragraph 36) that in his view:
“the fractures at T8 and L2 were caused by heavy lifting at work, and that whilst the Applicant’s spinal structure had been compromised by the multiple myeloma, the lifting procedure caused the fractures and I accept in the absence of evidence to the contrary that the fractures would not have occurred at this time but for the heavy lifting.”
He therefore found that employment was a substantial contributing factor to Mr Budge’s injury.
ISSUE IN DISPUTE
The issue in dispute in this matter is whether Mr Budge’s employment was a substantial contributing factor to his injury within the meaning of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). The RTA submits the Arbitrator made errors of law and fact in his decision. The parties’ submissions are considered below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the matter can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
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. With regard to section 352(2), I am satisfied that the compensation at issue exceeds $5,000 and constitutes 100% of the amount claimed by Mr Budge in respect of permanent impairment and pain and suffering. However, since no award of compensation was made by the Arbitrator, Mr Budge having not at that time been examined by an Approved Medical Specialist (‘AMS’), the section 352(2)(b) threshold does not apply: Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5. I therefore grant leave to appeal.
SUBMISSIONS
The RTA submits that the Arbitrator should have had regard to the NSW Court of Appeal’s discussion of the word ‘substantial’ in Mercer and Dayton v Coles Supermarkets Pty Ltd [2001] NSWCCR 26 (‘Dayton’) rather than to the views of judges of the Compensation Court of NSW referred to at paragraph 28 of his Statement of Reasons.
The RTA submits the Arbitrator misdirected himself in relation to Dr Hill’s evidence. In the penultimate paragraph of her report dated 2 December 2004, Dr Hill said “Mr Budge’s underlying multiple myeloma has probably been the substantial contributing factor towards the fractures although they may not have occurred if he had not lifted that particular weight at work”. The RTA submits it is patent from this passage that Dr Hill was not of the opinion that there was more than one substantial contributing factor. Contrary to the Arbitrator’s view, there is unanimity between the oncologists that employment was not a substantial contributing factor and that it was the myeloma which led inevitably to the crushed vertebrae, and which was the substantial contributing factor.
The RTA also submits the Arbitrator failed to explain how he resolved the competing submissions of the parties on the matters to be taken into account pursuant to section 9A(2) of the 1987 Act. In particular, subsection (2)(d) required the Arbitrator to take into account the probability that the injury would have happened anyway, and subsection (2)(e) required the Arbitrator to take into account Mr Budge’s health before the injury. Ultimately, the Arbitrator misdirected himself at paragraph 36 when he said, “I accept in the absence of evidence to the contrary that the fractures would not have occurred at this time but for the heavy lifting”. The RTA submits this was contrary to “the careful and detailed analysis by both Dr Hill and Dr Levi of the widespread disease in the applicant’s spine which inevitably leads to such fractures”. Contrary to the expert evidence, the Arbitrator concluded at paragraph 37 by finding that the lifting incident was “the effective cause of fractures to the applicant’s T8 and L2 vertebrae”, and then determining at paragraph 38 that “employment was a substantial contributing factor to the applicant’s injury”.
Mr Budge’s solicitors submit that it is clear from the decisions in Mercer and Dayton that section 9A involves an exercise of personal judgement by the individual judge as to whether employment was a substantial contributing factor to the injury and this is “a question of impression and degree” (Dayton at paragraph 29). In order to overturn such a finding on review, it must be shown that the finding was manifestly erroneous: Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6; King Island Company Ltd v Deery [2005] NSWWCCPD 1; Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73.
With regard to the Arbitrator’s interpretation of the views of Dr Hill, Mr Budge’s solicitors submit the Arbitrator considered significant Dr Hill’s opinion that “the fractures may not have occurred if the lift had not been attempted at work” (Statement of Reasons, paragraph 32). It was the role of the Arbitrator as the arbiter of fact to determine whether a factor was ‘substantial’, having weighed up all the whole of the evidence, both expert and lay. Dr Hill clearly accepted that there was more than one contributing factor, and it was the role of the Arbitrator to determine whether employment was a ‘substantial’ contributing factor.
With regard to section 9A(2), Mr Budge’s solicitors submit that the subsection sets out ‘examples’ of matters to be taken into account. They are matters to be weighed and considered in the exercise of the Arbitrator’s discretionary judgement. It is significant that the injury happened at work (subsection (2)(a)), involved the lifting of a heavy weight (subsection (2)(b)), that this was the immediate cause of the fractures, and that prior to this Mr Budge had been asymptomatic and able to perform his work duties. The Arbitrator provided sufficient reasons to enable the parties to understand the basis on which the decision was made.
With regard to the test applied by the Arbitrator, Mr Budge’s solicitors submit it is abundantly clear the Arbitrator was aware of the approach to be taken. It might be inferred that when the Arbitrator referred to the “effective cause” of the fractures, he had in mind that the lifting produced the actual injury, which did arise out of or in the course of Mr Budge’s employment. This was a relevant matter for the Arbitrator to take into consideration. With regard to the Arbitrator’s comment as to “the absence of evidence to the contrary”, and bearing in mind the ambiguity of Dr Hill’s evidence, the Arbitrator must be assumed to be referring to evidence which he accepted or found to be persuasive.
Finally, Mr Budge’s solicitors emphasise that section 9A directs attention to what the worker is required to do in his or her employment, and it is this that must be a substantial contributing factor to the injury. In Mr Budge’s case, it was the event – the lifting - that produced the pathology – the fractured vertebrae (see Lyons v Master Builder Association of NSW (2003) 25 NSWCCR 423). They submit the strength of the causal connection is clear, and it was reasonably open for the Arbitrator to so conclude. No error of law has been identified, the Arbitrator’s decision is not manifestly or obviously wrong so as to render the decision unfair or unlawful, and the decision should therefore be confirmed.
EVIDENCE
Mr Budge obtained employment with the RTA as a plant operator in 1996/1997. In his Statement, dated 14 April 2006, Mr Budge said:
“9. On 19 August 2004 I went to lift a heavy towing attachment to the amenities hut. The attachment was heavy and I had trouble lifting it. I did feel a strain in my lower back but at that point of time not enough to stop me from working.
10. About 2 – 3 days later I began to experience severe pain in my back ...
12. Before the lifting incident at work I never had any pain or trouble with my back.”
It seems Mr Budge was trying to lift the triangular towing attachment for the RTA mobile amenities hut on to the tow bar of the tipper truck he was driving, in order to move the amenities hut. (See also the history taken by Dr R Pillemer, Orthopaedic Surgeon, in his report dated 31 May 2006. Dr WGD Patrick, Surgeon, in the history recorded in his report dated 12 October 2005, estimated the weight lifted at 80 kgs.)
Mr Budge’s medical evidence included a report from his general practitioner, Dr Shamil Setrack, dated 16 October 2004, a report from his treating Oncologist, Dr Jane Hill, dated 2 December 2004, and a report from Dr WGD Patrick, Surgeon, dated 12 October 2005. Dr Setrack noted that prior to Mr Budge consulting a partner in the practice, Dr Rick McQueen-Thomson, on 23 and 30 August 2004, “[t]he patient has no record of previous problem [sic] and he did not attend this clinic for more than 2 years”. Dr Hill summarised her opinion as follows:
“[Mr Budge’s] myeloma has not been caused by his employment with the Roads and Traffic Authority although the activity which resulted in crushing of his weakened vertebrae did occur at work and as a result of his employment and job. I have no doubt that it was this activity that precipitated the crush fracture of the bone though this ultimately occurred because of the weakened underlying structure of the bone as a result of his multiple myeloma. It is therefore likely that with time he would have developed bone pain or similar crush fracture of the vertebrae without necessarily any significant traumatic injury as a result directly of his myelomatous process. The lifting at work however probably precipitated this at an earlier time than would have otherwise occurred ...
Answering the specific questions you pose in your letter, I find it difficult to formally assess whether it is likely that Mr Budge would still have sustained the multiple back fractures if he had not had his underlying myeloma. I do not have a good grasp of the exact weight that was lifted and there is no doubt that the lifting of heavy weights can result in significant back trauma and underlying malignant process. I think however that it is true to presume that Mr Budge’s underlying myeloma has probably been the substantial contributing factor towards the fractures although they may not have occurred if he had not lifted that particular weight at work.”
Dr Patrick stated his opinion as follows:
“I believe that these compression fractures have arisen directly as a result of his work injury, but there has been some contribution by some already present but unsuspected and undiagnosed multiple myeloma, [sic] systemic malignant condition affecting plasma cells. It is probably unlikely that the work injury has fortuitously resulted in significantly earlier diagnosis of the multiple myeloma, because even had the work injury not occurred, it is likely that he would have developed the hypercalcemia and acute renal failure at about the same time in September 2004.
... Had the work injury not occurred, it is probably unlikely that he would have sustained these compression fractures at these particular vertebrae.
I believe his employment/work has been a substantial contributing factor to his injuries and continuing symptoms.”
In his assessment of Mr Budge’s whole person impairment, also dated 12 October 2005, Dr Patrick said:
“I believe these compression fractures would not have occurred had he not carried out this particularly heavy lift at work. It is likely that there has been some contribution by underlying multiple myeloma condition, albeit symptomatic, but the contribution by this is clearly difficult to determine, and in accordance with the relevant paragraph, WorkCover Guides, p11 “deductions for pre-existing condition or injury” I believe the nominal deduction of 10% of the assessed impairment is appropriate. I do not believe this is at odds with the available evidence.”
The RTA’s medical evidence comprised a report from Dr Ian Smith, Injury Management Consultant, dated 30 September 2004, a report from Dr John Levi, Oncologist, dated 31 May 2006, and a report from Dr Roger Pillemer, Orthopaedic Surgeon, dated 31 May 2006. Dr Smith said “[t]he injury has not caused or aggravated the claimant cancer or any of the damage to the spine”. However, he acknowledged the need for a report from an oncologist, which was not then available.
Dr Levi said Mr Budge’s current restrictions:
“relate to residual after effects following the compression fractures of his 8th thoracic and 2nd lumbar vertebra. These compression fractures are predominantly related to the underlying diagnosis of multiple myeloma which resulted in lysis of the bones in those sites and subsequent fracture. The lifting of a weight prior to the commencement of the symptoms may have precipitated the actual fractures but is more likely than not that these would have occurred at some time very shortly after the actual timing of the accident.
Accordingly, I consider that the contribution of the undiagnosed multiple myeloma to the development of the fractures is greater than 90% with only a 10% contribution of the actual lifting activity.”
Dr Levi said “it is more likely than not that the fractures of the vertebrae would have occurred irrespective of the accident”:
“The only contribution of Mr Budge’s employment to his diagnosis relates to the lifting probably contributing to a small extent to the compression fractures of the thoracic and lumbar vertebra. It is more likely than not that these would have occurred spontaneously even without the lifting episode a short time thereafter. Accordingly the vast majority of Mr Budge’s condition relates to the progression of his multiple myeloma which at the time was undiagnosed.”
Dr Pillemer said:
“In my opinion the fractures are due to the underlying multiple myeloma deposits in these vertebral bodies (that is, pathological fractures). However the incident on 19 August 2004 would certainly be responsible for the actual compression fractures having occurred. In my opinion however, this incident would not be regarded as a substantial contributing factor to the fractures, because if the fractures had not occurred at that particular time, it is predictable that he would have developed pathological fractures at some stage in the future ...
Attempting to answer the question with regard to attributability is very difficult, and I am aware that legally the definition of ‘injury’ differs from the medical interpretation.
Certainly if he had not lifted the heavy steel structure on that particular day it is likely that any pathological fractures would have been delayed for a further period of time until there had been further weakening of the bone, and a further similar relatively minor incident would have caused compression fractures.”
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the RTA must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Section 9A of the 1987 Act provides relevantly:
“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.”
In Mercer, the NSW Court of Appeal noted that there may be more than one substantial contributing factor to an injury. Mason P, at paragraph 27, agreed with the construction of Bishop J, at first instance, that ‘substantial’ meant “more than minimal, large or great”:
“remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, not does it attempt to exclude predisposition or susceptibility to a particular condition ...”
In Dayton, Meagher JA observed, at paragraph 16:
“Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word ‘substantial’. But this word is a plain English word understood by anyone who is not a judge. Nor have the judicial lucubrations contributed to anyone’s understanding of it. And nobody in their [sic - right] senses would regard a cause which could be correctly categorised as very ‘minor’ as ‘substantial’.”
Giles JA, at paragraph 23, perceived “some tension” in the observations of the Court of Appeal in Mercer. At paragraph 25, he cited with approval Burke CCJ’s discussion of ‘substantial’, at first instance in Dayton, where His Honour said there will never be a definitive statement of what constitutes a ‘substantial contributing factor’: “It will forever remain a question of impression and degree in any particular case”. Giles JA went on:
“His Honour said that the word [substantial] was ‘a common English word conveying imprecise magnitude but ‘an impression that something is serious, weighty, important, sizeable, or large’.’ He said that s 9A involved “an analysis of causal factors which resulted in the injury and an evaluation of the importance of the employment factors relative to the others”, and noted that it was the employment which must be a substantial contributing factor.”
In my view, it is clear that a finding of fact as to whether a worker’s employment is a substantial contributing factor to an injury is a matter of judgement. There may be other substantial contributing factors, but employment must be a “serious, weighty, important, sizeable or large” factor and not something that is a minor factor. Section 9A(2) provides examples of the matters to be taken into account in making a finding as to whether a worker’s employment was a substantial contributing factor to the injury.
In written submissions to the Arbitrator, the RTA did not dispute that “the lift on 19 August 2004 had a role to play in the creation of the fractures”. The question therefore was whether the lifting incident was a substantial contributing factor to the injury. The Arbitrator relied on Dr Hill’s comment the fractures may not have occurred if Mr Budge had not lifted the heavy weight at work, in finding that although Mr Budge’s bone structure had been weakened by the multiple myeloma, and that, with time, there would have been similar crush fractures, “the fact is that these fractures were caused by the lifting incident at work” (Statement of Reasons, paragraph 33). The Arbitrator accepted “in the absence of evidence to the contrary that the fractures would not have occurred at this time but for the heavy lifting” (Statement of Reasons, paragraph 36). Therefore, employment was a substantial contributing factor to the injury.
The medical evidence establishes that at the time of the injury, Mr Budge was suffering from undiagnosed multiple myelomas. Dr Hill’s and Dr Levi’s evidence establishes that this weakened Mr Budge’s underlying bone structure. Dr Hill also said similar crush fractures of the vertebrae could have occurred “without any significant traumatic injury as a result directly of his myelomatous process”. Dr Levi was clearly of the same opinion. Nevertheless, all the specialists seem to agree that the actual fractures to the 8th thoracic and 2nd lumbar vertebrae on 19 August 2004 occurred because of the lifting incident.
I note that the towing attachment lifted by Mr Budge was, on his evidence, heavy and he had trouble lifting it. Dr Patrick estimated the weight at 80 kgs. Mr Budge felt back strain at the time and began to experience severe pain two to three days later.
I am not satisfied that the Arbitrator made any error of law in his discussion of what constitutes a substantial contributing factor to an injury. Nor do I accept that the Arbitrator misdirected himself in accepting that the injury would not have occurred at that time but for the heavy lifting. As I have stated, the specialist opinion is that the actual fractures that occurred on 19 August 2004 occurred because of the lifting incident in the course of Mr Budge’s employment (section 9A(2)(a) and (b)), albeit that this was because of the weakened bone structure and recognising that such fractures could have occurred directly because of the myelomatous process (section 9A(2)(d) and (e)).
In my view, essentially what is in dispute is the Arbitrator’s discretionary judgement as whether the lifting incident was a substantial contributing factor to the injury. The question to be posed, therefore, as noted above at paragraph 30, is whether the Arbitrator’s discretionary judgement as to the weight of evidence has so miscarried that it is manifestly obvious that he has not exercised that discretion fairly and lawfully. In my view, it has not. The factual evidence as to what occurred indicates that prior to 19 August 2004 Mr Budge was asymptomatic and, indeed, had not visited his general practioner for two years (section 9A(2)(e)). On 19 August 2004, Mr Budge was lifting a heavy weight. He stated that he felt back strain, and severe pain two to three days later. Clearly, the lifting incident precipitated the fractures. Notwithstanding Mr Budge’s underlying myeloma-weakened bone structure, the fractures of those particular vertebrae might not have occurred but for the lifting incident (see, for example, Dr Hill’s, Dr Patrick’s, Dr Levi’s reports, cited above). In my view, there was evidence to support the Arbitrator’s finding that Mr Budge’s employment was a substantial contributing factor to his injury in the sense that it was a factor of some significance and not something that was minor. In conclusion, I am not satisfied that it is manifestly obvious the Arbitrator has not exercised his discretion fairly and lawfully, and consequently, in my view, I should not interfere with his judgement.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
The Appellant is to pay the Respondent, Mr Budge’s costs in the appeal.
Robin Handley
Acting Deputy President
17 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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