Rural Press Limited v Hancock
[2009] NSWWCCPD 160
•22 December 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Rural Press Limited v Hancock [2009] NSWWCCPD 160 | ||||
| APPELLANT: | Rural Press Limited | ||||
| RESPONDENT: | Ronald Hancock | ||||
| INSURERS: | 1. Cambridge Integrated Services Australia Pty Ltd from 30/6/1998 to 30/6/2000; 2. QBE Workers Compensation (NSW) Ltd from 30/6/2000 to 30/6/2004 and from 1/7/2007 to 30/6/2008; 3. CGU Workers Compensation (NSW) Ltd from 1/7/2004 to 30/6/2007. | ||||
| FILE NUMBER: | A1-4206/09 | ||||
| ARBITRATOR: | Mr R Bell | ||||
| DATE OF ARBITRATOR’S DECISION: | 9 September 2009 | ||||
| DATE OF APPEAL DECISION: | 22 December 2009 | ||||
| SUBJECT MATTER OF DECISION: | Injury; aggravation of a disease; weight of evidence; sections 4 and 9A of the Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | Whitelaw McDonald | ||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1 and 2 of the decision of the Arbitrator dated 9 September 2009 are confirmed. 2. Paragraphs 3 to 7 inclusive are revoked and the following orders made in its place: “3. Award in favour of the Respondent. 4. No order as to costs.” 3. Each party is to pay its own costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
The Respondent, Mr Ronald Hancock, commenced employment with the Appellant, Rural Press Limited, as a compositor in about 1990. Mr Hancock had been employed in the printing industry since he was 16. He is presently 59 years old. In April 1981 he commenced employment with the Newcastle Star which was taken over by the Appellant in 1990. At that time, he began working with the Maitland Mercury.
Mr Hancock claimed that his duties as a compositor required him to work on his feet all day, and for extended periods when he did overtime. He said that in about 1994 he started to notice the gradual onset of pain in his left hip. By 1996 he said that his symptoms had deteriorated so he consulted Dr Mitchell, orthopaedic surgeon, who carried out a left hip replacement in September 1999. He was off work for a period of time and then resumed his usual duties with the Appellant.
In his statement dated 28 September 2004, Mr Hancock said that “in recent years” he had noticed similar problems in his right hip. He also said that since about 1997 or 1998 his duties changed in that he no longer worked on his feet, but sat at a computer all day. This activity he also claimed aggravated his “underlying condition.”
In a statement dated 14 February 2006 Mr Hancock said that he suffered from pain in both hips which radiated to his low back. He said that he had difficulties with everyday tasks such as showering and dressing, driving and household maintenance.
He had a right hip replacement again performed by Dr Mitchell in October 2006.
In a subsequent statement dated 18 February 2009, Mr Hancock confirmed that he still suffered from pain and restriction of movement in his left hip, lower back pain which radiated into his buttocks and thighs, right hip pain which he said commenced in about 2001, and right groin pain. These problems he again said caused significant interference with daily activities. He has however remained in the employ of the Appellant.
In an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 1 June 2009, Mr Hancock sought lump sum benefits as a consequence of injuries to his back and both hips. These injuries he described as an aggravation, acceleration, exacerbation and deterioration of a disease of gradual process in the back and both hips caused by the nature and conditions of his employment with the Appellant. That Application pleaded injury to the left hip in September 1999 (deemed) and to the right hip in October 2006 (deemed) and to the back on 14 August 2007. That was amended with the consent of the parties at the hearing before the Arbitrator to delete those dates and claim “The period of employment from 1990 to 30 April 1998 (deemed date of injury 14 August 2007).”
The nominated insurers were:
Cambridge Integrated Services Australia Pty Ltd (‘Cambridge’) on risk from 30 June 1998 to 30 June 2000;
QBE Workers Compensation (NSW) Limited (‘QBE’) on risk from 30 June 2000 to 30 June 2004 and from 1 July 2007 to 30 June 2008;
CGU Workers Compensation (NSW) Limited (‘CGU’) on risk from 1 July 2004 to 30 June 2007.
Mr Hancock made a claim for lump sum benefits on QBE on 14 August 2007.
The parties attended a hearing before the Arbitrator on 12 August 2009. No oral evidence was given, and submissions by Counsel for both parties are recorded in a transcript of that date
In a reserved decision initially delivered on 3 September 2009 and subsequently amended under the ‘slip rule’ on 9 September 2009, the Arbitrator found in favour of Mr Hancock, and referred his claim for assessment by an Approved Medical Specialist.
The Certificate of Determination dated 9 September 2009 with an accompanying Statement of Reasons (‘Reasons’) records the following formal orders:
“Date of amended Determination: 9 September 2009
The determination of the Commission in this matter is as follows:
Amended under ‘slip rule’
1. That the report of Dr Sage dated 21 July 2008 is excluded from the evidence.
2. That the application is amended at Part 4 to delete ‘Injury 1’ and ‘Injury 2’; ‘Injury 3’ is amended such that the date of injury is: ‘1990 to 30 April 1998 (deemed date of injury 14 August 2007)
3. That the Commission finds that the applicant suffered injury of an aggravation and acceleration of degenerative change in both hips and the lumbar spine out of or in the course of his employment with the respondent.
4. That the employment was a substantial contributing factor to the injuries.
5. The claim for section 66 lump sum for the lumbar spine and both lower extremities is remitted to the Registrar for referral to an Approved Medical Specialist.
6. That the Respondent pay the Applicant’s costs as agreed or assessed.
7. I certify this matter as complex for the purposes Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2003; there is to be 5% increase to the costs applicable to both parties.”
It is from this decision that the Appellant seeks leave to appeal.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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. The amount at issue on appeal satisfies the threshold requirement s of section 352(2).
Leave to appeal is granted.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The Appellant seeks to rely on a facsimile from Cambridge to Dr Mitchell dated 20 June 2008. The Appellant claims that although the document was included in the evidence before the Arbitrator, namely the clinical records of Dr Mitchell to which the Arbitrator referred at [17] of his Reasons, it was not “brought to the attention of the Arbitrator by Counsel and nor did the Arbitrator note it in considering Dr Mitchell’s records.”
The facsimile is indeed included in the notes of Dr Mitchell which were in evidence before the Arbitrator. It is therefore not “fresh evidence.” The weight to be attached to it and the Arbitrator’s treatment of the evidence is another matter which will be dealt with in due course.
To the extent that it is necessary, and despite the objection by Mr Hancock, the document is admitted.
THE ISSUES IN DISPUTE
As the Arbitrator correctly identified at [13] the issues in dispute were twofold, namely:
· Did Mr Hancock suffer injury to both hips and the lumbar spine out of or in the course of his employment with the respondent?
· Was Mr Hancock’s employment with the respondent a substantial contributing factor to his injuries?”
The Appellant submits that the Arbitrator’s positive findings on these issues were wrong in several respects, namely:
“i. The Arbitrator misconceived the evidentiary requirements borne by the worker of establishing an ‘aggravation and acceleration’ of the worker’s condition as a result of his work.
ii. The Arbitrator failed to properly consider whether there had been any ‘aggravation’ as defined in light of the determination of the High Court in Federal Broom Co Pty Ltd vSemlitch [1964] HCA 34 (‘Federal Broom’) and subsequent decisions.
iii. The Arbitrator erred in concluding that there was a ‘fair climate’ for Dr Bracken’s opinion or that his opinion ‘satisfies the test’ in Makita (Australia) Pty Ltd vSprowles [2001] NSWCA 305 (‘Makita’).
iv. The Arbitrator erred in finding in any event that the worker’s employment constituted a ‘substantial contributing factor’ in the aggravation and/or acceleration of the degenerative change extant in the worker’s hips and lumbar spine.
v. The Arbitrator failed to give appropriate weight to the opinion of the treating specialist [Dr Mitchell].
vi. The Arbitrator erred in finding the Appellant liable for the worker’s alleged injury to the lumbar spine.”
THE EVIDENCE
Mr Hancock’s Evidence
I have already briefly referred to the three statements of Mr Hancock. Relevant to the issues in dispute are the following comments made in his statement of 28 September 2004:
“ My work as a compositor during this period [from 1990] involved standing on my feet for extended periods…During this time I worked a lot of hours overtime (standing on my feet). It was during such employment that I started to notice gradual onset of pain, restriction and discomfort in my left hip.
It is my understanding that the symptoms started to come on in approximately 1994. Such symptoms would be aggravated by extended standing. Levels of pain, restriction and discomfort would escalate at the end of each workday.
[After the 1999 left hip replacement] I did not claim the initial period as Workers Compensation. At that stage, I was not necessarily aware that there was in fact a link between my condition and my employment.
Upon returning to work I went back to normal duties. There has been no further treatment on my left hip.
In recent years I have also noticed similar problems with my right hip…
I continue in my normal employment at Rural Press. My duties have changed over the last 6 or 7 years. I am now seated in front of a computer throughout the workday. Again, such duties aggravate my underlying condition. I find that my hips are extremely painful at the end of a shift…
I have recently returned from a trip around Australia. I found that driving long periods also aggravated my condition.
I was not originally aware that there could be a link…[with] my employment…medical evidence obtained by my Solicitors supports [this].”
There was no reference to any back condition or symptoms in that statement. Nor is it clear to what “medical evidence” Mr Hancock is referring, since he did not consult Dr Bracken until 2005.
In his statement of 14 February 2006, Mr Hancock repeated much of his earlier statement but added:
“I now suffer from pain, restriction and discomfort in both of my hips. After I have been at work I experience a dull ache in both of my hips that radiates into my lower back…”
The balance of that statement set out details of restrictions his condition had placed on his daily activities. There was no suggestion that he had injured his back, only that symptoms radiated from the hips to the low back.
In his final statement of 18 February 2009, Mr Hancock said:
“I continued to have difficulty with my left hip such as restriction of movement, pain and discomfort.
I also continued to suffer from low back pain which radiated into my buttocks and thighs (my emphasis).
I continued to do compositing work [after the left hip replacement in September 1999] however, the duties had changed from being on my feet to being seated in front of a computer all day.
As a result, my left hip continued to be painful and restricted in movement. My lower back pain would become worse by the end of the day.
Approximately 18 months after undergoing total left hip replacement surgery in September 1999, it became apparent that my right hip was deteriorating. I began to suffer from severe pain in my right groin…I continue working as a Compositor… I perform three 10 hour shifts and one 7.5 hour shift per week.”
Mr Hancock relied upon a series of reports from Dr Barry Bracken, consultant surgeon. In his first report dated 5 August 2005, Dr Bracken recorded his work history in the precise terms set out in Mr Hancock’s statements. He noted that Mr Hancock said that he had had no previous accidents, injuries or fractures, but had an operation at age 13 on the lower end of his left femur for osteomyelitis from which he made a full recovery. He continued:
“Mr Hancock said that symptoms started occurring in his left hip in the form of groin pain and limping in about 1994 when he was still on his feet for most of his working day…
In addition he said that about the same time that he developed left hip pain he noticed the onset of low back pain with radiation at times to the left buttock and thigh and at times as far as the calf…These pains have persisted.
In addition he said he developed pains in his right groin…at about the end of the year 2000…complaints in respect of his right hip in the form of central groin pain have increased, especially during the past six months and that there has been an increase in his low back pain associated with it.”
Dr Bracken then set out the various radiological material he had available to him which he summarised as follows:
“CT Scan of the lumbar spine dated 29 April 1993 showing disc herniation at the L5-S1 level impinging on the thecal sac and possibly the left S1 nerve root. The L3-4 and L4-5 disc scanned normally.
X-Rays of the lumbar spine dated 2 April 1996 showing degenerative narrowing and osteophyte formation at the L5-S1 level.
X-Rays of the pelvis and left hip dated 2 April 1996 showing the presence of moderate osteoarthritic changes in the left hip with narrowing and marginal osteophytes. In the right hip the joint space is well preserved but there is noted to be a marginal osteophyte on the lower aspect of the acetabulum.
X-Rays of the pelvis and left hip dated 26 August 1998 showing well marked osteoarthritic changes in the left hip with a little narrowing of the joint space in the right hip.
X-Rays and CT Scan of the lumbar spine dated 10 September 1998. The changes were similar but he noted ‘gross narrowing of the L5-S1 disc…’
X-Rays of the pelvis and hips dated 10 May 2005 showing marked degeneration of the L5-S1 disc and the total hip replacement on the left side which was in a satisfactory position.”
Dr Bracken concluded:
“It is noted that this man has spent a large portion of his working life standing persistently on hard surfaces in the course of his work…and particularly so [since] 1981…
It is certain that in about 1994 he developed symptoms of osteoarthritis in his left hip. About the same time he noticed the onset of postural back pain, with some radiation initially to the left leg but more recently to both legs. More recently he has developed symptoms of arthritic change in his right hip and these changes are seen on x-rays from 1996 onwards…
In general terms the cause of osteoarthritic change in hips is not known, though it can be associated with certain traumatic conditions, conditions of anoxia and certain medications and conditions in which the head of the femur or socket has been substantially altered by pre-existing conditions. There is no history of any pre-existing condition in respect of this man’s hip, nor are the x-rays indicative of any pre-existing condition. It is noted that this man developed arthritic changes in his hip at a younger age than is normal. It is noted that he had difficult working conditions over an extended period of time.
In consideration of the above factors, it is my opinion that this man’s condition of work, particularly where it involved prolonged standing on hard surfaces was a factor which aggravated and accelerated arthritic changes within his hips. It is my opinion that 50% of the current level of his hip conditions relates to his conditions of work up to and including his work as a compositor with the Maitland Mercury.
In respect of his back, it is noted that he has had long standing degenerative changes in the lumbo-sacral disc. There is present a central disc protrusion of that disc, the cause of which is unknown. There are present well marked arthritic changes in the lower lumbar posterior spinal joints and particularly at L5-S1 level which all seem certain to have been aggravated and accelerated by his conditions of work.
Another factor in his low back pain is concerned with the development of flexion deformities at his hips, associated with increasing arthritic changes in the hips as currently seen in the right hip, which puts further strain on his low back and increases low back pain…”
In a subsequent report dated 20 June 2007, Dr Bracken noted that complaints on examination on that date were “identical” to those reported in his earlier report, although he noted that Mr Hancock had now had a right hip replacement with some ongoing symptoms and restrictions. He confirmed his diagnosis and opinion set out in his earlier report..
Much of the medical evidence from the treating doctors is contained in various late documents submitted by both parties and admitted into evidence by the Arbitrator. For the sake of clarity, I propose to set out this material in chronological order regardless of its origin.
I have already referred to some of the radiological material noted by Dr Bracken. In addition, there was in evidence, an X-Ray of the lumbosacral spine and pelvis taken on 2 August 1991. This showed “moderate narrowing of the lumbosacral disc space raising the possibility of underlying disc degeneration.” Early degenerative changes were seen in the hip joints on both sides. There was also noted: “There is irregularity in bone structure in the iliac crest and adjacent bones ? possibility of donor sites for bone grafting or reactive change associated with past trauma.”
This latter comment may be associated with the operation for osteomyelitis to which Dr Bracken referred.
There was also a bone scan dated 5 March 1999 which showed “advanced degenerative change involving the left hip.” Significant degeneration was also shown in the lumbar spine with facet joint disease at several levels.
There were a series of reports from Dr Mitchell. His first report is dated 16 July 1993. He noted that Mr Hancock:
“…has had intermittent pain [in his lumbar spine] for approximately three years, associated with left sciatica. He has had a recent exacerbation which is now settling…
He works as a Newspaper Typesetter and his sport now is just golf, although he was previously a cricketer and soccer player…
His CT Scan shows a large sequestrated fragment of the L5-S1 disc in a bulge out to the left side which is very consistent with his symptoms and signs.”
Dr Mitchell felt that he may come to surgery in the future but arranged conservative treatment for the time being.
In his next report dated 2 April 1996 Dr Mitchell referred to his earlier consultation with Mr Hancock in 1993 “for his back pain and left sided sciatica.” He continued:
“Today, he only has some groin pain and some medial thigh pain. He still however has quite significant lower back pain…
Examination of his left hip also shows some limitation in the range of movement …
I get the feeling that his main problem is with the stiffness in his lumbar spine at the moment…”
Following x-rays taken on 2 April 1996, Dr Mitchell wrote to Dr Davies in a report dated 16 April 1996:
“His x-rays show significant degenerative changes in his left hip along with some less significant changes in the right hip. There is also a decrease in the disc space at the L5-S1 level consistent with his old injury (my emphasis). Interestingly radiologically, he has evidence of some new bone around the proximal femur on the right side and also from the pelvis. This has been diagnosed as a possible Forrestiers disease. I wonder about meleorestosis as being another possibility. These are typically radiological findings that don’t cause any significant hassles but may be contributing a little to his degenerative hips.”
In a report dated 12 October 1998, Dr Mitchell wrote:
“He is having significant problems with mainly his lumbar spine at the moment, but also his hip. Clinically it does appear that his lumbar spine is the problem here…His hip joint is stiff and irritable.”
Dr Mitchell reviewed recent radiological films and suggested treatment by way of steroid injection in the hip. On review on 7 December 1998 he suggested that Mr Hancock be put “on the list for a total hip replacement.”
In a subsequent report dated 30 May 2005, Dr Mitchell noted that it was five years since the left hip replacement which Mr Hancock “is very happy with.” He noted that “his problem now is his right hip.” Dr Mitchell again placed him on the waiting list for a right hip replacement.
In a report dated 16 October 2007, Dr Mitchell wrote:
“He is now about eight years since his left total hip replacement and twelve months since the right total hip replacement. He is very happy with both. He is getting around well, he has no pain…and the x-rays of both hips look good.”
On 20 June 2008, Cambridge sent a fax to Dr Mitchell with the following questions:
“1. Do you consider [the] nature and conditions of Mr Hancock’s employment with Rural Press to be [a] substantial contributing factor to his injury/disease either by way of aggravation or causation?
2. If so, please apportion loss. Cambridge period of risk was 30/6/1998 to 30/6/2000.
3. Please apportion loss between nature and conditions of employment up to 30/6/2000, nature and conditions of employment 1/7/2000 to date.
4. If relevant, the impairment should be assessed using the table of MIAMS (sic) up to 30/6/2000 and AMA Guides…from 1/7/2000.”
Dr Mitchell responded in a report dated 26 June 2008 as follows:
“I continue to be Ronald’s treating surgeon with regard to his hip replacements. I have no record of any work related injury with regard to Mr Hancock’s arthritic hips. It is difficult to imagine that his work as a Compositor for Rural Press Ltd would result in osteoarthritis of his hips. He denies any significant use of stairs, squatting, bending or the need to carry heavy weights. He is simply standing for lengthy periods of the day.”
Dr John Christie, neurosurgeon, wrote to Dr Davies on 12 February 1999. He said:
“Thanks for asking me to see Mr Hancock, he is 48 years old and has had problems with arthritis affecting his left hip for about 6 years or so. Peter Mitchell has been seeing him regarding that…
About 18 months ago he had an episode of left lumbar pain which was relieved by his chiropractor. The pain returned about 6 months ago and has continued…The pain seems to be very localised to the left paraspinal region at about the L4/5 level. He doesn’t get any leg pain…
His lumbar spine imaging studies show quite marked disc degeneration at L5/S1 with some central protrusion which doesn’t seem to have altered much since 1993…
It may well be that he has some facet arthropathy as the source of his lumbar pain. Whether this has been aggravated by his hip problems is very hard to know and I also think it is difficult to know whether it would be eased by hip replacement. I think that should probably be treated on its merits.”
Dr Christie discussed treatment options and left it “Up to him to pursue things further if he wishes.”
Dr Hopkins, a general practitioner, wrote an undated report confirming that he saw Mr Hancock on 11 February 2004. It is not clear why this consultation occurred. He recorded this history:
“Until recent years [Mr Hancock’s] duties required him to stand on hard surfaces for extended periods of time. It was necessary then for him to do repetitive bending, twisting and turning of his body…Over the past ten years or more he noticed the gradual onset of increasing pain and restriction of movement in his lower back and hips”
Dr Hopkins noted Mr Hancock’s complaints of ongoing back and particularly right hip pain. He apparently viewed limited radiological studies and concluded:
“Ron has suffered significant degenerative disease of his lower back and hips. The history, examination and investigation are consistent to suggest that the work environment was most likely a major contributing factor to its occurrence.”
The Appellant’s Evidence
In it’s Reply, the Appellant included a report from Dr Richard Powell, orthopaedic surgeon, who saw Mr Hancock at the request of Cambridge on 29 May 2008. In his report of the same date, he said:
“Mr Hancock could identify no specific precipitating event that contributed to the development or aggravation of the osteoarthritis in his hips. He believes that the osteoarthritis developed as a result of the nature and conditions of his employment with Rural Press Ltd which essentially represented periods of prolonged standing…His job as a compositor was not physically demanding though did involve prolonged periods of standing. He describes no heavy lifting, squatting, kneeling, stair or ladder climbing. Mr Hancock remains symptomatic in regards to both hips. His major complaint is in regards to stiffness and restriction in range of motion…”
In a supplementary report dated 17 June 2008, Dr Powell was asked to respond to the question: “Has the nature and conditions of employment with Rural Press been a substantial contributing factor to the injury/disease either by way of causation or aggravation?” Dr Powell responded:
“Based on the information provided to me by Mr Hancock, I do not believe that the nature and conditions of his employment with Rural Press has been a substantial contributing factor in the development of his bilateral lower limb injuries.”
The Appellant in the interests of QBE arranged for Mr Hancock to be examined by Dr David Millons on 4 November 2004. In a report dated 8 November 2004, he said:
“In the early days, he would be on his feet standing on concrete or timber floors all shift. There would not be a lot of heavy lifting involved, just a lot of standing around overviewing the operation.
Seven years ago, the technology changed and he then started to just operate a computer terminal, setting advertisements. He now sits through the shift.
Mr Hancock has been having problems with both hips. He thought that it was perhaps some ten years ago that he started to develop some pain particularly in his left hip.
[After the left hip replacement] he states that the pain in the left hip went and has stayed away. There has been some restriction of left hip movement since that time.
Mr Hancock noticed that in the last six to twelve months his right hip has been going off, becoming increasingly painful and stiff.
Mr Hancock states that he has some pain in his lower back. That has been present over the years. It is not really bad. Pain never radiates into either lower limb”
After viewing some of the radiological studies, Dr Millons concluded:
“Mr Hancock is clearly having problems with both hips and to a lesser degree with his lower back.
His lower back was investigated as long ago as 1993 and that showed some problems at the lumbo-sacral level. Persisting problems were noted in a CT scan performed on 10/9/98.
Just now, Mr Hancock makes no great complaint of pain in his lower back. His back is certainly somewhat stiff and irritable. There is no evidence of any frank nerve root irritation or neurological deficit in either lower limb.
I had no history of any frank injury to the back per se. I believe that the changes are constitutionally based. He could well have some mechanical low back pain as a result of the underlying attritional change. Those changes could be being aggravated by his altered gait pattern as a result of his hip problems.
Mr Hancock has radiological evidence of osteoarthritic changes in the hips dating back to at least April 1996…
Osteoarthritis is a constitutionally based condition which can come on after episodes of trauma. There does not appear to have been any particular trauma in Mr Hancock’s case. The nature and conditions of his work do not appear to have been that demanding, although clearly, being on his feet all day would have the potential to aggravate the degenerate changes in the hips.
For the last seven years, he has been sitting at a computer terminal so the nature and conditions of his work from then on can hardly be considered aggravating…
I believe that Mr Hancock’s osteoarthritic hips could be considered to be a disease of gradual onset which was not caused by his work. There does not appear to have been any particular substantial aggravation occasioned by the nature and conditions of his work over the years. His work does not appear to have accelerated the problem either.
The diagnosis is of bilateral osteoarthritis of the hips and degenerative changes in the lower lumbar region, particularly the L5/S1. Those changes all appear to be constitutionally based.”
In a supplementary report dated 8 November 2004, Dr Millons said:
“Dr Hopkins notes that the history, examination and investigations are consistent, suggesting that the work environment was “most likely” a major contributing factor to his current state.
I do not agree with that. There does not appear to have been any work that was particularly aggravating.”
Interestingly, the Appellant tendered a section 66A Agreement dated 20 October 2004 between “Ronald Hancock and Goodwin Custom Panel Doors P/L” in respect of a 10.25% impairment of the back. It seems unlikely that this document refers to the Respondent in this case. The insurer is Allianz, and the document pre-dates the report of Dr Millons.
The Appellant also tendered the clinical notes of Dr Davies who appears to have first seen Mr Hancock in about February 1987. The notes are difficult to read, but there is a clear reference to “acute lumbar strain” on 10 March 1987. There is a reference to “lumbar strain” on 28 October 1987. The entry on 2 August 1991 reads: “Months of a crook back (L) sciatica [to] toes. Points to (L) S1 J.” The balance of that entry I cannot decipher, but it seems that Mr Hancock was sent for x-rays and then referred to Dr Mitchell.
The first reference to any problems with the hips seems to be in February 1997 (the precise dated is obscured) where the entry reads: “L hip again” but I cannot see any earlier reference. It does appear from Dr Mitchell’s reports that he first saw Mr Hancock in relation to his left hip in April 1996 on referral from Dr Davies.
The balance of the material tendered by the Appellant was not of relevance to the issues in dispute.
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator dealt with the question: “Did Mr Hancock suffer injury to both hips and the lumbar spine arising out of or in the course of his employment with the respondent?” commencing at [20]. He noted the concession by Mr Hancock’s Counsel that the injury to the hips was not caused by the work and his submission that the work “aggravated and accelerated the condition.” He continued as follows:
“28. It is true that degenerative changes in Mr Hancock’s hips were seen in imaging as early as 1991 in the report of Dr O’Dell: ‘There are some early degenerative changes in the hip joints, there being some minor marginal osteophytic reaction developing inferiorly on both sides.’
29.Dr Bracken apparently did not have that imaging report before him when he examined Mr Hancock; it is not referred to in his reports. However, I do not understand Dr Bracken to be saying that there was no early underlying degeneration in the hips prior to the employment with the respondent. When he says in paragraph 3 of page 6 of his 5 August 2005 report that, ‘There is no history of any pre-existing condition in respect of this man’s hip, nor are the x-rays indicative of any pre-existing condition.’, I take him be referring to the sorts of specific conditions he lists earlier in the same paragraph, when discussing some possible causes of osteoarthritic change in the hips, including ‘anoxia and certain medications’. It is clear to me that Dr Bracken is ruling out such specific causes of the degenerative condition in Mr Hancock’s case, and is therefore saying it is of unknown origin. This view of the condition being of unknown origin and of early onset is consistent with the 1991 imaging report, which Dr Bracken apparently did not see, but I do not think that detracts from Dr Bracken’s opinion overall.
30.In terms of Matar and anor v Zeineddine [2008] NSWWCCPD 51, and Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 there was a ‘fair climate’ for Dr Bracken’s opinion, despite the absence of the 1991 imaging report.
31.In discussing the link between the work and the aggravation and acceleration of the degenerative changes, Dr Bracken takes the history of Mr Hancock ‘standing persistently on hard surfaces in the course of his work’. He then goes on the consider whether there is any specific association with trauma, anoxia, medications, or something else that might have changed the shape of the head of the femur. He finds no evidence of these, and in paragraph 4 on page 6 of the report concludes in the absence of any such association that the persistent standing at work has aggravated and accelerated the condition, in his view contributing 50% of the level of degeneration.
32.Mr Hancock in his statement of 14 February 2006 says, ‘...the symptoms started to come on in approximately 1994. Such symptoms would be aggravated by extended standing. Levels of pain, restriction and discomfort would escalate at the end of each workday.’
33.Dr Hopkins’ report takes an incorrect history that Mr Hancock was required to engage in repetitive bending, twisting and turning of his body in his work as compositor. This is not correct, and his opinion is not useful for that reason. Dr Christie’s treatment report of 12 February 1999 does not address the issue in dispute.
34.Dr Millons for the respondent in his report of 8 November 2004 says, ‘Osteoarthritis is a constitutionally based condition which can come on after episodes of trauma. There does not appear to have been any particular trauma in Mr Hancock’s case. The nature and conditions of his work do not appear to have been that demanding although, clearly, being on his feet all day would have the potential to aggravate the degenerate changes in the hips.’
35.Dr Millons concludes, ‘I believe that Mr Hancock’s osteoarthritic hips could be considered to be a disease of gradual onset which was not caused by his work. There does not appear to have been any particular substantial aggravation occasioned by the nature and conditions of his work over the years. His work does not appear to have accelerated the problem either.’ This view is confirmed in the short supplementary report of 8 November 2004, in which Dr Millons says he does not agree with the general practitioner, Dr Hopkins’ view that the work is ‘ ...“most likely” a major contributing factor to his current state.’
36.I prefer Dr Bracken’s conclusions to those of Dr Millons to the extent they differ because Dr Bracken’s view is consistent with the subjective experience of symptoms by Mr Hancock. I do note that Dr Millons does concede potential aggravation from the standing at work.
37.Dr Powell’s report of 17 June 2008 is supplementary to his report of 29 May 2008, and the opinion is very briefly expressed as a conclusion without explanation as to how the opinion is arrived at with reference to the history taken. It also seems to me to be an opinion about whether the work was the cause of the condition, rather than as a source of aggravation. As such it is not particularly useful and I prefer Dr Bracken’s more comprehensive reasoning and opinion.
38.As the respondent submits, the treating specialist, Dr Mitchell, has been seeing Mr Hancock over many years. Many of his reports are progress reports, but the report of 26 June 2008 contains the following opinion, requested by one of the insurers: ‘I have no record of any work related injury with regard to Mr Hancock’s arthritic hips. It is difficult to imagine that his work as a Compositor for Rural Press Ltd would result in osteoarthritis of his hips. He denies any significant use of stairs, squatting, bending or the need to carry heavy weights. He is simply standing for lengthy periods of the day’.
39.The questions asked by the insurer of Dr Mitchell are not apparent but it seems he is also addressing a question about whether the work is the cause of the condition, rather than whether it has aggravated or accelerated it. The report is not of great assistance to either party for that reason. The respondent submits that Dr Mitchell should be taken to have the opinion that the work did not aggravate or accelerate the condition, but I am unable to derive that from the report.
40.Mr Hancock’s experience of the symptoms by the end of each work day is consistent with Dr Bracken’s opinion as to the aggravation etc of the condition by the standing required at work. The reasoning of Dr Bracken, which he confirms in the update of 20 June 2007, together with Mr Hancock’s evidence of symptoms arising after the lengthy periods of standing at work satisfies me that there was an aggravation and acceleration of the underlying condition by the nature of Mr Hancock’s duties.
41.The evidence is such that it is apparent that the nature of Mr Hancock’s work as a compositor up to April 1998 can be identified as being responsible for the ‘aggravation etc’ of the underlying condition. As discussed above, I prefer the opinion of Dr Bracken over that of Dr Millons to the extent they disagree, and over that of Dr Powell.
42.I do not accept the respondent’s submission that Dr Bracken does not satisfy the requirements for an expert opinion, and find his report satisfies the test in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305. He bases his opinion on the history taken and the imaging reports, and explains his reasoning process in arriving at his opinion. In terms of the principle in Edmonds referred to by the respondent, this is evidence upon which the findings are based.
43.For the above reasons, I find that Mr Hancock suffered injury in the course of his employment in the form of the aggravation and acceleration of an osteo-arthritic degenerative condition in both hips. The injury occurred over the period of employment from 1990 to 30 April 1998, and the deemed date of injury is 14 August 2007.”
At [44] the Arbitrator turned to consider the claimed back injury. After summarising the medical evidence he concluded:
“52.Dr Millons does say at page 5 of the 8 November 2004 report that ‘He could well have some mechanical low back pain as a result of the underlying attritional change. Those changes could be being aggravated by his altered gait pattern as a result of his hip problems.’
53.Despite the lack of sciatica the history of increasing pain in the back itself is consistent with Dr Millons’ opinion as to the possible aggravation etc. of the back due to the altered gait. Dr Millons’ acceptance of that possibility also gives some support to Dr Bracken’s views.
54.There is insufficient evidence of aggravation of the degenerative back condition by Mr Hancock’s work between 1990 and April 1998 for a finding to that effect. I accept the respondent’s submissions on that in respect of the back. However, the evidence is sufficient as to aggravation caused by the altered gait arising from the hip problems, which have already been found to have been aggravated by the work. I accept Dr Bracken on that question given his relatively detailed analysis of the problem.
55.The causative chain is clear between the aggravation and acceleration of the hip condition and the aggravation of the degenerative back condition. In terms of the definition of section 4 of the Act, the aggravation of the back is a direct result of the aggravation to the hips which arose ‘in the course of’ the employment, but the aggravation of the back, its less proximate and temporal connection, is best characterised as arising ‘out of’ the employment. For these reasons I find that Mr Hancock’s injury of the aggravation and acceleration of his degenerative back condition arose out of his employment with the respondent. The injury occurred over the period of employment from 1990 to 30 April 1998, with the deemed date of injury is 14 August 2007.”
The Arbitrator then posed the question: “Was Mr Hancock’s employment with the respondent a substantial contributing factor to his injuries?” He said:
“56. In McMahon v Lagana & Anor [2004] NSWCA 164, Hodgson JA considered the concept thus:
‘... although ‘substantial’ is an ordinary English word, the decision of a question whether employment was a substantial contributing factor to an injury is a question informed by legal considerations. However, in my opinion, the ultimate decision is a finding of fact, and is a matter of impression and degree: see Dayton at [29].’
57.It is insufficient for injury to have arisen out of or in the course of the employment. An Applicant must establish that the employment is a substantial contributing factor to the injury. There may be more than one substantial contributing factor to one injury, and a contributing factor is sufficient if the overall impression and degree in the circumstances of the case is that the factor is more than minimal: Mercer v ANZ Banking Group [2000] NSWCA 138; McMahon.
58.The causative link between Mr Hancock’s work and the aggravation of his hip symptoms has established ‘injury’, as discussed above. Of the non-exhaustive examples set out in section 9A (2) of the Act, the most operative in Mr Hancock’s case is section 9A (2) (d) as to whether the injury would have occurred regardless of the work. Was the work of sufficient impact compared to the natural progression of Mr Hancock’s degenerative conditions for it to be considered a substantial contributing factor? The respondent submits that there was no aggravation or acceleration of the degenerative conditions due to the work.
59.As to the hips, the preferred opinion of Dr Bracken ties the aggravation to standing for long periods as a compositor. This occurred for a period of some 8 years. While there was very early onset of degeneration, the progress of the condition to the point of left hip replacement was relatively rapid, given Dr Bracken’s opinion that 50% of the degeneration in the hips is derived from the work. The overall impression from the evidence is that the work with the respondent is a substantial contributing factor to the aggravation and acceleration of a degenerative condition in Mr Hancock’s hips.
60.The back is more problematic for Mr Hancock, because of the apparent improvement after 1993 when Dr Mitchell took the history of sciatica on the left. However, Dr Bracken reports that Mr Hancock began taking pain medication for his back from his resumption of work in early 2000 after the left hip replacement. Mr Hancock also mentions the medication in his statement of 18 February 2009. It seems that, while the referred pain in the left leg subsided over the years, pain in the back increased with the deterioration of the hips, to the extent that medication was required to manage it.
61.The aggravation of the back, being subsequent to the aggravation of the hip condition, places the back aggravation as more remote from the actual work than the hip aggravation, but the causative chain is established by the medical evidence as to the effect of the altered gait on the back. That, and the other relevant evidence suggests to me that the aggravation to the back arising from the work aggravation to the hips, is more than ‘minimal’: Mercer. The extent of the effect of the work aggravation on the hips increasing the level of degeneration by some 50% has increased the strain on the back. I find that the work was a substantial contributing factor to the injury of the aggravation of Mr Hancock’s degenerative back condition.”
THE SUBMISSIONS AND DISCUSSION
The Appellant’s grounds of appeal in effect encompass the two issues noted by the Arbitrator, namely firstly; whether Mr Hancock suffered an injury within the meaning of section 4 of the 1987 Act, and secondly; whether his employment was a substantial contributing factor to that injury within the meaning of section 9A of the Act.
It is clear that Mr Hancock’s claim is based upon ‘injury’ within the meaning of section 4(b)(ii), that is: “The aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration…” Section 4 however must now be read in conjunction with section 9A, but of course ‘injury’ must be found before section 9A comes into play.
The principles to be borne in mind in considering “disease” cases are well set out in the judgement of Windeyer J in Federal Broom, usefully summarised by Burke CCJ in Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (‘Cant’) where he said:
“Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639 posed the essential question of whether there has been a relevant aggravation, acceleration, exacerbation or deterioration of a disease as:
‘The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.’
His Honour had previously commented (at 637):
‘I therefore find it impossible to conceive of the malady as distinct from its manifestations.’
The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (at [17])
The proper test then is whether the aggravation to which the employment was a contributing factor had some tangible affect on the worker. It is not necessary for the particular disease to be made worse (Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132).
The issue I must determine in the present case is whether the evidence was sufficient to establish ‘injury’ within the meaning of section 4(b)(ii) and if so, whether the employment was a substantial contributing factor to that injury. It is appropriate that I consider separately the injury to the hips and to the back, since the back injury is more contentious in terms of causation.
The Injury to the Hips
Dealing firstly with the injury to the hips, the Appellant submits that the evidence is insufficient for two principal reasons: firstly, because Mr Hancock did not satisfy the evidentiary requirements on him to establish injury by way of aggravation in line with Federal Broom and Cant, and secondly, because there was not a “fair climate” for the acceptance of Dr Bracken’s opinion which failed to satisfy the test in Makita.
The Appellant submits that the Arbitrator failed to consider the question as to whether the claimed aggravation had produced an increase in symptoms or to properly “analyse it in any logical or reasoned manner” relying solely on the statements of Mr Hancock, uncorroborated by any other evidence. The Appellant points to the following factors in support of its argument:
(a) There was no evidence in the notes of Dr Davies of contemporaneous complaints by Mr Hancock that his work had increased his symptoms.
(b) The first entry referring to the left hip is in February 1997.
(c) Mr Hancock made no complaint to Dr Mitchell who had treated him since 1993 that his work duties affected his condition or increased his symptoms.
(d) The reports of Dr Mitchell up to 1998 refer predominantly to back complaints.
(e) Dr Christie’s report of 12 February 1999 refers only to the lumbar spine and left hip.
(f) There is no evidence in the many medical reports pre-dating the left hip replacement in September 1999 of increasing symptoms related to work.
(g) The Arbitrator and Dr Bracken did not address the failure of Mr Hancock to make any complaints in relation to his right hip until well after the “allegedly injurious task of standing all day had ceased (circa 1997/98).”
(h) The only evidence that work may have played some part in the aggravation of the disease came from Mr Hancock’s “own belated and subjective assertions” which were uncorroborated and thus failed to satisfy the evidentiary onus on him as required by Federal Broom and Cant.
There is some merit in many of the Appellant’s submissions. To begin with, I accept that there was no contemporaneous evidence of work related “aggravation” in the treating doctors’ reports and notes. Although Mr Hancock said that after his left hip replacement in September 1999 he did not claim compensation because he “was not necessarily aware that there was in fact a link between my condition and my employment,” I think it is curious that he did not communicate to his treating doctors his belief that “It was during such employment that I started to notice gradual onset of pain in the left hip.” However, as Mr Hancock submits, this is not necessarily fatal to his claim since the “link” with employment is more of a medical issue particularly in the circumstances of this case.
Mr Hancock reported to Dr Bracken that he first noticed the onset of right hip pain in about 2000, several years after his duties had become sedentary. His claim (supported by Dr Bracken) is predicated on the basis that standing for lengthy periods aggravated and accelerated the arthritic condition of his hips. It was this activity which Dr Bracken considered “aggravated and accelerated the arthritic condition within his hips” that is, both hips. Mr Hancock’s statement in 2004 that sitting at a computer also “aggravated my underlying condition” does not appear to have been communicated to Dr Bracken, nor did Dr Bracken apparently consider it influential in the aggravation of his condition. This raises some issues as to the reliability and credibility of Dr Bracken’s opinion to which I will return shortly. It does however suggest that the onset of symptoms in the right hip in about 2000 was not connected with the employment activity alleged as responsible for the aggravation, and that by that time, there were clearly a number of activities which caused symptoms in his hips to increase.
I do accept however that changes were noted in the right hip as early as 1996.
It is clear that symptoms or pain brought on by work activity may constitute a relevant aggravation even though no pathological change in the underlying condition has occurred. (Commonwealth of Australia v Beattie (1981) 35 ALR 369). What is necessary is to decide whether the manifestation of symptoms is sufficient to establish ‘injury’, or, in other words, whether the symptoms were made worse by the work duties described. (Mellor v AustralianPostal Corporation [2009] FCA 504).
This is by no means an easy issue to determine. Although Mr Hancock may well have noticed symptoms in his hips while standing for lengthy periods, it does not necessarily follow that the activity of standing itself aggravated his underlying condition.
Having carefully considered all of the evidence, I am not satisfied that the manifestation of symptoms in the hips was sufficient to establish ‘injury’ for a number of reasons set out below.
I certainly accept that there was some evidence to suggest that the symptoms were made worse by standing for long periods of time, namely Mr Hancock’s own statements, the reports of Dr Bracken and to a limited extent the opinion of Dr Millons. But in my view that evidence was insufficient.
Dr Millons’ report must be read in context. Although he considered that “standing on his feet all day would have the potential to aggravate the degenerate changes in the hips” he also noted that the nature and conditions of Mr Hancock’s employment “do not appear to have been that demanding.” More significantly, he added:
“For the last seven years, he has been sitting at a computer terminal so the nature and conditions of his work from then on can hardly be considered aggravating…”
His supplementary report is of more significance where he disagreed with the views of Dr Hopkins, adding: “There does not appear to have been any work that was particularly aggravating.”
The principal difficulty with Dr Bracken’s opinion is that his conclusion is based upon symptoms arising in both hips as a consequence of prolonged standing. There was some evidence to suggest that that may have played a part in the development of symptoms in the left hip, but it simply does not tie in with Mr Hancock’s statement that right hip symptoms arose in about 2000 after some three years of sedentary work. It is in stark contrast to the opinion of Dr Millons on this point, and indeed to Mr Hancock’s own statement that sitting also aggravated his condition. This was not addressed by either Dr Bracken or the Arbitrator.
Dr Bracken’s opinion then is in my view thus flawed. It being in essence the only medical opinion in support of Mr Hancock’s claim (the opinion of Dr Hopkins having been properly dismissed by the Arbitrator for the reasons stated) Mr Hancock has failed to discharge the evidentiary onus on him.
The Arbitrator, in accepting the opinion of Dr Bracken, was in my view overly critical of the other medical evidence. On one reading of it, Dr Powell’s opinion does appear to address the question as to whether the employment was causative of Mr Hancock’s condition. Dr Mitchell’s opinion the Arbitrator considered was flawed for the same reason, and of “little assistance” to either party, but conceded at [39] that he was unaware of the questions asked of Dr Mitchell. The Arbitrator appears to have overlooked the fax from Cambridge (contained in the records of Dr Mitchell admitted into evidence) wherein Dr Mitchell was specifically asked whether he considered that employment with the Appellant was a substantial contributing factor to Mr Hancock’s condition either by way of causation or aggravation. Dr Mitchell responded that:
“It is difficult to imagine that his work as a Compositor for Rural Press Ltd would result in osteoarthritis of his hips. He denies any significant use of stairs, squatting, bending or the need to carry heavy weights. He is simply standing for lengthy periods of the day.”
The use of the words “result in” is clearly open to interpretation, but I do not think it was open to the Arbitrator to conclude that Dr Mitchell was addressing a question as to the cause of Mr Hancock’s condition, particularly being unaware of the question asked. In my view, Dr Mitchell’s response, although not in the precise legal terms suggested by Cambridge, was nonetheless valid, suggesting that the condition was neither caused or aggravated by Mr Hancock’s employment.
I think that the same may be said in relation to the opinion of Dr Powell. When similarly asked whether the employment had contributed to the “injury/disease either by way of causation or aggravation” his response was that he did not consider that the employment had been a substantial contributing factor to “the development of his bilateral lower limb injuries.” Again, the use of the word “development” is open to interpretation. It could mean either by way of causation or aggravation.
Dr Mitchell has been Mr Hancock’s treating specialist for many years which in my view adds significant weight to his opinion. I am reinforced in my view for several reasons namely:
i. In his report of 2 April 1996 he considered recent radiological studies which suggested the presence of other conditions “which may be contributing to his degenerative hips.” Whether this was by way of cause or simply symptomatically isn’t entirely clear, but it certainly suggests that the work environment was not considered, and ties in with the opinion expressed to Cambridge. This was not commented on by the Arbitrator nor the subject of discussion by other doctors.
ii. He at no time obtained any history from Mr Hancock suggesting that his employment played a role in his condition. Even after his statement in 2004, Mr Hancock did not refer the issue to Dr Mitchell for consideration even though he consulted him on numerous occasions thereafter and indeed had his right hip replacement in 2006. The first time it was raised seems to be in response to the fax from Cambridge. Although I accept Mr Hancock’s statement that he was unaware in 1999 of the “link” as he called it with his employment, he was certainly aware by 2004 or 2005 when he consulted Dr Bracken.
iii. Drs Millons and Powell made the same observation as Dr Mitchell in that there was an absence of evidence of activities which may have been productive of symptoms such as climbing stairs or ladders, squatting, kneeling or heavy lifting. All came to a similar conclusion.
Similar issues were considered in Kingi v Australian Portable Buildings Pty Ltd [2009] NSWWCCPD 30 (‘Kingi’). In that case, the worker was employed as a carpenter whose duties involved considerable bending, twisting and heavy lifting. The consensus of medical opinion was to the effect that such duties had aggravated degenerative arthritic changes in both hips.
Drs Mitchell, Powell and Millons I infer similarly considered that such activities could result in the aggravation of arthritic hips.
The Arbitrator appears to have accepted the opinion of Dr Bracken over that of the other medical specialists at [36] on the basis that “Dr Bracken’s view is consistent with the subjective experience of symptoms by Mr Hancock.” I take this to be a reference to Mr Hancock’s own statement in 2004 that after standing for long periods he noticed symptoms in his left hip. But that is not an end to the matter. There was no suggestion by any of the doctors that Mr Hancock was not experiencing the symptoms he complained of: the issue was whether the work involved was responsible for those symptoms. Mr Hancock’s “subjective symptoms” he said also arose as a result of other activities such as sitting and driving.
The Appellant submits that Dr Bracken’s report does not satisfy the Makita test, nor that set out in subsequent decisions such as Hevi Lift (PNG) v Etherington [2005] NSWCA 42 (‘Hevi Lift’) and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’).
In Makita Heydon JA (as he then was) said at [64]:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”
In Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505) it was argued that several medical reports had based their conclusions on inaccurate histories and, therefore, their opinions should not have been accepted. Samuels JA (Hutley and Priestley JJA agreeing) said, at 509-510:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
As the Court observed in Hevi Lift at [84]:
“It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it…”
A history of injury contained in a medical report may be received as evidence of the fact under section 60 of the Evidence Act 1995 (NSW) (Paper Coaters PtyLimited v Jessop [2009] NSWCA 1 at [42]).
Having carefully considered Dr Bracken’s report, I consider that the Appellant has overstated the effect of the principles in Hevi Lift. Dr Bracken opined that Mr Hancock’s “conditions of work” involving prolonged standing on hard surfaces aggravated and accelerated the arthritic changes in his hips. Thus he set out the basis upon which he formed his opinion. (His opinion in relation to the back is a different issue). It was not like the situation in Edmonds, where the Court of Appeal determined that the Arbitrator and Deputy President erred when they relied on a medical report from Dr Rivett that contained no description of the worker’s duties that might have provided a factual basis for the proposition advanced by the doctor that the worker’s “problems are work related” (per McColl JA at [137]).
Although I accept the Arbitrator’s interpretation of Dr Bracken’s report at [29], I do not consider that there was a “fair climate” for Dr Bracken’s ultimate opinion. His history of symptoms occurring in both hips as a consequence of prolonged standing, and indeed his conclusions in relation to the back injury demonstrated discrepancies which in my view were fatal to the acceptance of his opinion. As the Appellant rightly points out, there was simply no explanation by Dr Bracken as to “why the disease in the right hip was not made worse (apparently by the worker’s employment) until years after he ceased standing at work.”
The Back Injury
The Arbitrator concluded at [54] that:
“There is insufficient evidence of aggravation of the degenerative back condition by Mr Hancock’s work between 1990 and April 1998 for a finding to that effect. I accept the respondent’s submissions on that in respect of the back. However, the evidence is sufficient as to aggravation caused by the altered gait arising from the hip problems, which have already been found to have been aggravated by the work. I accept Dr Bracken on that question given his relatively detailed analysis of the problem.”
Having found that Mr Hancock did not suffer an injury to his hips within the meaning of section 4(b)(ii), it follows that the Arbitrator’s finding that the injury to the back was as a consequence of the hip injuries must also be set aside.
But if I am wrong in my findings on the injury to the hips, I am not persuaded that the evidence in any event was sufficient for the Arbitrator to conclude that the back injury was as a consequence of the injury to the hips for the following reasons:
(a) Mr Hancock clearly suffered a significant injury to his back in 1990 or earlier resulting in “a large sequestrated fragment of the L5-S1 disc in a bulge out to the left…” (See the notes of Dr Davies, report of Dr Mitchell dated 16 July 1993 and the CT Scan dated 29 April 1993).
(b) In his report of 2 April 1996 Dr Mitchell referred to “his old injury.”
(c) Mr Hancock has clearly had persistent symptoms in his back consequent upon the damage to the L5-S1 disc for many years, independent of his hip symptoms.
(d) Mr Hancock’s own evidence is conflicting. He made no reference to his back in his 2004 statement. In his 2006 statement, he said that pain radiated from his hips to his low back. In his 2009 statement, he then said that he had pain in his back which radiated to his buttock and thighs, similar to the symptoms he described to Dr Mitchell in 1993. That condition interestingly he also said was made worse by sitting.
(e) Dr Millons record of back complaints is consistent with that of Dr Mitchell.
(f) Dr Bracken obtained a history that symptoms in the left hip commenced in about 1994 and that at the same time, Mr Hancock developed symptoms in his low back. Notwithstanding that Dr Bracken did not have the 1991 x-ray, his history is markedly inconsistent with the notes of Dr Davies and Dr Mitchell and indeed Mr Hancock’s statements.
(g) Mr Hancock consulted Dr Christie in February 1999 with complaints of back pain in the same area as noted by Dr Mitchell in 1993.Dr Christie opined that the changes had not altered since 1993.
(h) Dr Bracken’s assertion that it seems “certain” that the condition of Mr Hancock’s back was “aggravated by his work conditions” is simply unsubstantiated and without explanation.
The only support for the proposition that the back condition arose as a consequence of Mr Hancock’s altered gait because of his hip problems came from Dr Bracken. Although Dr Millons acknowledged that the altered gait may have an aggravating affect on the underlying attritional changes, he clearly noted that Mr Hancock had been found to have a problem at the lumbo-sacral level as early as 1993. Dr Millons was not aware of the earlier injuries referred to by Dr Davies in his notes nor of the “old injury” referred to by Dr Mitchell.
I do not accept that there was sufficient evidence to support a finding that the nature and conditions of Mr Hancock’s employment involving prolonged standing aggravated his underlying back condition, and I agree with the Arbitrator in that respect.
I am similarly not persuaded that there was sufficient probative evidence to support the Arbitrator’s finding that the back condition arose as a consequence of the injury to the hips, independent of my finding that Dr Bracken’s opinion was unsatisfactory for the reasons stated. The evidence, particularly that of Mr Hancock himself, was simply too conflicting.
The Section 9A Issue
Even if I am wrong in my findings on the issue of ‘injury’, and were thus to accept the opinion of Dr Bracken, it would still remain necessary to consider the impact of section 9A.
Neilson CCJ in King v The Commissioner of Police (2004) 2 DDCR 416 reviewed the case law in relation to the application of section 9A to injuries involving the aggravation etc of disease and confirmed consistent with his decision in Rootney v Tiger Nominees (2002) 23 NSWCCR 775, that the employment must be a substantial contributing factor to the event giving rise to the aggravation etc rather than the path of the underlying disease. In other words, a substantial contributing factor should relate to the aggravation or acceleration, and not to the underlying condition (Murray v Shillingsworth [2006] NSWCA367).
As Deputy President Roche observed in Duc Dien Tran v Salmat Document ManagementSolutions Pty Ltd [2008] NSWWCCPD 147 at [72]:
“Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; (2004) 4 DDCR 348) to be decided after a consideration of all the evidence. However, as noted by Acting Deputy President Snell, ‘It is not purely a medical question’ (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor [2006] NSWWCCPD 222 at [31])”
In the present case, having considered all of the evidence, I am not persuaded that it supported a finding that the nature and conditions of employment involving prolonged standing could be regarded as a substantial contributing factor to the aggravation of either the hips or the back. I say this principally because of Mr Hancock’s own evidence that activities such as sitting also aggravated his condition. In his 2006 statement he also added that during his trip around Australia referred to in his 2004 statement he found that “sitting in a car or bus and driving long periods also aggravated my condition.” Clearly, everyday activities, including sporting, were causing him difficulties as may be inferred particularly form the reports of Dr Mitchell.
Drs Mitchell, Powell and Millons similarly did not consider the employment to be a substantial contributing factor to the injury, if the reports are to be interpreted as referring to the “aggravating” activity which I believe they can.
It is perhaps worth noting at this point that there were also inconsistencies in the evidence as to the extent of these difficulties. For example, Dr Bracken first saw Mr Hancock before his right hip replacement. In his June 2007 report, Dr Bracken noted that complaints were “identical” to those made in 2005. Contrast that with the report of Dr Mitchell on 16 October 2007 that: “He is getting around well, he has no pain…” Mr Hancock reported to Dr Millons on 4 November 2004 that the pain in his left hip had gone since his surgery, although he still had some restriction of movement. Yet Dr Bracken recorded in August 2005 that left hip pain had “persisted” since its onset.
In my view, this raises some questions as to the reliability of Mr Hancock’s accounts.
The weight of all the evidence both lay and medical in my view simply did not support a finding that the employment activity alleged was a substantial contributing factor to the aggravation of the underlying condition The only support was from Dr Bracken, and his opinion was unsatisfactory for the reasons stated.
CONCLUSION
Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I conclude, for the reasons stated in this decision, that the Arbitrator’s determination was incorrect, and the appeal is upheld.
DECISION
Paragraphs 1 and 2 of the decision of the Arbitrator dated 9 September 2009 are confirmed.
Paragraphs 3 to 7 inclusive are revoked, and the following orders made in its place:
“3. Award in favour of the Respondent.
4. No order as to costs.”
COSTS
Each party is to pay its own costs of the appeal.
Deborah Moore
Acting Deputy President
22 December 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION Of DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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