S & H Removals Pty Ltd v Watson
[2009] NSWWCCPD 91
•5 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | S & H Removals Pty Ltd v Watson [2009] NSWWCCPD 91 | |||||
| APPELLANT: | S & H Removals Pty Ltd | |||||
| RESPONDENT: | Michael Dean Watson | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-10073/08 | |||||
| ARBITRATOR: | Mr R Whitelaw | |||||
| DATE OF ARBITRATOR’S DECISION: | 16 April 2009 | |||||
| DATE OF APPEAL DECISION: | 5 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Incapacity; reasons; weight to be attached to video surveillance | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Gillis Delaney Lawyers | ||||
| Respondent: | Capital Lawyers | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 16 April 2009 is confirmed. | |||||
| The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||||||
BACKGROUND
The respondent worker, Mr Watson, injured his back whilst working as a labourer for the appellant employer, S & H House Removals Pty Ltd (‘the appellant’), on 7 August 2007. On that day he was lifting a steel beam with three fellow workers when they dropped one end of the beam resulting in it falling heavily onto Mr Watson’s shoulder.
He completed his duties on that day and returned to work the following day. However, he was unable to continue working on that day because of a significant back pain. He ceased work and sought medical treatment. His claim for compensation was accepted and voluntary weekly compensation was paid until 12 December 2008, when liability was declined because of surveillance video obtained on 27 August 2008 that showed Mr Watson lifting bricks.
By letter dated 31 October 2008, the respondent’s workers compensation insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), denied liability on the grounds that:
(a)Mr Watson no longer suffered an incapacity for work;
(b)ongoing treatment was no longer reasonably necessary;
(c)Mr Watson had no permanent impairment, and
(d)the injury on 7 August 2007 had resolved.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 12 December 2008, Mr Watson claimed weekly compensation in respect of himself and three dependent children from 13 December 2008 to date and continuing. The Application described his injury in the following terms:
“Significant aggravation and acceleration of pre-existing but asymptomatic spondylolisthesis of the lumbar spine; Disc bulge at L5/S1 which impacts on the left L5 nerve root; Desiccation of disc at L5/S1”
By its reply filed on 6 January 2009, the appellant disputed liability on the grounds set out in QBE’s letter of 31 October 2008.
The matter was listed for conciliation and arbitration on 31 March 2009. After hearing detailed submissions from the parties’ legal representatives, the Arbitrator found Mr Watson to be totally unfit for work and made an award in his favour. The Commission issued a Certificate of Determination on 16 April 2009 in the following terms:
“1.That the respondent pay the applicant weekly payments of compensation at the maximum statutory rate for a worker with three dependent children from 13 December 2008 to date and continuing.
2.That the respondent pay the applicant’s medical and related expenses pursuant to s60 of the Workers Compensation Act 1987 upon production of accounts or receipts.
3.That the respondent pay the applicant’s costs as agreed or assessed.”
By an appeal filed on 13 May 2009, the appellant seeks leave to appeal the Arbitrator’s determination and findings as to incapacity.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the 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.
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.”
To rebut a Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’) argument, raised by the appellant for the first time on appeal, Mr Watson seeks to tender, as additional evidence on appeal, a letter forwarded by his solicitor to Dr Langley on 20 November 2008. This evidence establishes that Dr Langley was requested to provide his opinion on Mr Watson’s “disability for work” and to indicate periods of total and partial incapacity. In respect of partial incapacity, he was asked to indicate what restrictions applied and for what periods.
Given the new argument raised by the appellant on appeal, it is in the interests of justice that Mr Watson be permitted to tender the letter of 20 November 2008, though its relevance to the issues in dispute is limited.
THE EVIDENCE
Mr Watson’s Case
Lay Evidence
Mr Watson’s evidence is set out in two statements. QBE’s investigators took the first statement on 13 March 2008 and his solicitor took the second on 12 March 2009. Mr Watson is 35 years of age. He was born in Lismore and completed his schooling when he obtained his school certificate at Kyogle. After leaving school he engaged in various occupations including pastry cook, heavy machinery operator, waterproofer, mill hand, storeman, labourer on dairy farms, pipe layer, concreter, installer of garage doors, tree topper, and general labourer. Many of these jobs were casual or seasonal. He worked full-time with the appellant as a house remover/restumper. His pre-injury work was physical, but he performed it without restriction or any back symptoms until 7 August 2007. It required him to prepare houses for relocation and then ‘restump’ them at their new location. He worked between 40 and 50 hours per week Monday to Friday and was paid a flat rate of $20 per hour.
As a result of an incident while moving a steel beam on 7 August 2007, Mr Watson injured his back. He continued working until about 5pm. The next morning he attended at work but was unable to continue. A work colleague made an appointment for him that afternoon with a chiropractor, Colin Lock (referred to as Mr Wok in other evidence). As a result of a manipulation by Mr Lock, Mr Watson’s back pain increased. On 9 August 2007, Mr Watson attended on Dr Bains, general practitioner at The Lismore Clinic at 185 Molesworth Street Lismore, and was ultimately referred to Professor Day, a surgeon specialising in surgery of the spine.
He later changed to a new general practitioner, Dr Young, at the same practice as Dr Bains. Dr Young referred Mr Watson for physiotherapy and prescribed oxynorm. Mr Watson has undergone two spinal blocks at the hands of Professor Day at St Vincent’s Hospital Lismore. At the time of his March 2008 statement, Mr Watson was in “considerable pain” and could not do anything. He found that if he lay down all day his pain was manageable, but as soon as he tried to do anything that he was in agony.
In his second statement, Mr Watson said that he has remained on sick leave. He has been unable to work because of his severe back pain as well as pain in his hips and legs. On 14 August 2008, Professor Day recommended surgery. The insurer approved that surgery and it was due to be undertaken in September 2008, but before it could take place, the insurer ceased payments and the surgery was cancelled.
On 13 September 2007, Mr Watson was bumped by a car and experienced a temporary exacerbation of his pain, which lasted about a week. This incident is referred to in other evidence as having occurred on 26 July 2007 (see Dr Boyce at [40]).
Since his first statement in March 2008, Mr Watson has continued to experience significant pain in his lower back and difficulty with bending, lifting, walking for prolonged periods, sitting or standing for prolonged periods, or performing chores around his house. His pain has also caused him to walk with a mild limp.
He states that on 27 April 2008 (presumably, 27 August 2008) he had been drinking and decided to telephone a friend, Dale Smith. He told Mr Smith that he was experiencing difficulty coping with the stress and frustration of being couped up in the house all day on his own and not working because of his back injury. Mr Smith had some errands to run and invited Mr Watson to join him, which he did. The two men purchased some alcohol at a bottle shop in Lismore and then drove to Caniaba where Mr Smith had to collect some bricks for a friend’s property in Casino. When they arrived at Caniaba, Mr Watson helped Mr Smith to load several hollow besser type bricks onto his trailer. The two men then drove to Casino and detached his trailer at a friend’s property. They then drove to Mr Watson’s house at Lismore and consumed alcohol while watching a movie. Before moving the bricks, Mr Watson had consumed alcohol and taken analgesics, though the quantity is not known. Though he did not experienced pain whilst moving the bricks, later that evening he felt pain and instability in his spine.
Without objection, Mr Watson tendered an unsigned and undated statement from Mr Smith, a self-employed subcontract concreter. Mr Smith corroborates Mr Watson’s evidence as to the activities on 27 August 2008. He confirms that Mr Watson telephoned him on 27 August 2008 stating that he was “stressed out about having to sit around the house all day and that he was not coping well with it and had had a few drinks.” In relation to moving the bricks, Mr Smith says that Mr Watson merely pushed some bricks closer to him, but no bricks were lifted off the ground because they were on a pallet. The whole job took possibly 10 to 15 minutes and was not heavy or arduous physical work. After arriving at his friend’s house at Casino, Mr Smith unhooked the trailer and left it in the friend’s backyard. He then drove to Mr Watson’s house and watched a movie.
Mr Watson also relies on a statement from his wife Angela Watson, dated 23 February 2008 (presumably, 23 February 2009). She does not recall her husband ever complaining of a sore back prior to August 2007. She recalls that he complained of having injured his back at work on 7 August 2007 and that his mood was flat and he appeared to be guarding his movements. Since that day their lives changed considerably and Mr Watson was no longer the person she married. She knows from her observations that he is often in severe pain. He regularly complains to her about feelings of instability in his spine. He is always required to wear his back brace. From her observation, he cannot sit down in one position for a long period and he cannot walk for longer than about 5 to 10 minutes without complaining about a burning sensation in his back. At times, his pain and restriction of movement are so bad that he needs her to put on his pants for him. He has great difficulty in lifting his three-year-old son and is rarely able to do so. Since his accident, he has been unable to perform the household gardening and maintenance he previously performed, and Mrs Watson undertakes those tasks.
Medical Evidence
Professor Day reported to Dr Bains on 5 October 2007. He took a history that Mr Watson injured his back whilst lifting some steel beams in mid August 2007. Mr Watson complained of pain radiating down the back of both legs and stated that he had an electric-type shock feeling in both legs and was unable to straighten his back. Professor Day observed Mr Watson to walk with a limp favouring his left leg. X-rays of the lumbar spine dated 14 August 2007 revealed an L5/S1 spondylolisthesis. A CT scan of the lumbar spine dated 28 August 2007 confirmed the presence of the spondylolisthesis and demonstrated a pseudo-disc bulge at the L5/S1 level that was potentially defacing the left S1 nerve root.
Professor Day performed a CT guided lumbar facet/nerve root block on 17 October 2007. Professor Day recorded in his report of 26 October 2007 that the facet joint injections helped for about 24 hours. Clinically, however, Mr Watson had a poor range of movement of the lumbar spine and Professor Day recommended the continuation of weekly Pilates.
In December 2007, Professor Day noted that Mr Watson still had very severe leg pain “and instability pattern in the spine” on flexion and extension. Mr Watson felt too unstable with the Pilates and stopped. A further facet joint injection was performed on 14 December 2007.
An MRI scan on 18 March 2008 revealed anterolisthesis at the L5/S1 secondary to bilateral L5 pars defects and a mild broad based posterior disc bulge. There was also evidence of compression of the left L5 nerve root.
Mr Watson’s solicitor referred him to Dr Langley, orthopaedic surgeon, for a medico-legal assessment on 9 March 2009. Dr Langley records that Mr Watson complained of aching in his lower back and stabbing pain into his left buttock with numbness down his left thigh, numbness down the outside of the left leg, and pins and needles in both feet. If he did the vacuuming he needed to sit after 10 minutes. He could not lift his three-year-old son. The injury affected his urination and defecation. He had difficulty, at times, with his bathing and dressing and his wife has had to help him. He had numbness, pins and needles and a cold sensation in his left leg and foot. He could not drive a vehicle as he was in constant pain, but he could travel as a passenger, but for no longer than 20 minutes at a time.
Under “Education and Work History”, Dr Langley recorded that Mr Watson has done on the job training for waterproofing and holds a certificate in artificial insemination of cattle. He has also done a small business course, holds a forklift ticket, an ordered stock-picker ticket, and a St Johns Ambulance certificate.
On examination, Dr Langley noted that there was a marked reduction in flexion and extension, lateral flexion to the right and left, and rotation to the right and left. Straight leg raising and slump tests were normal, showing no evidence of nerve root tension in the legs. Reflexes, sensation and power in the legs were normal, though Mr Watson had some generalised decrease in sensation in his left leg compared to the right leg, which did not follow any definite nerve root pattern. There was no muscle tenderness or gross wasting in either leg.
Under “Opinion”, Dr Langley concluded that Mr Watson had suffered an aggravation of a pre-existing problem (spondylolisthesis) in his back with ongoing referred symptoms in his left leg. He noted that Mr Watson was not working as he had difficulty bending and lifting and his lifting was reduced to 5 kg at one time. Dr Langley expected that disability to continue in the future and he noted that Mr Watson had “ongoing objective symptoms of pain”.
Mr Watson has tendered a series of medical certificates from Dr Young that certify him to be unfit for work. There are also several short reports in evidence from Dr Young. In his report of 4 February 2008, Dr Young stated that Mr Watson was suffering from chronic severe back pain and sciatica symptoms and was “unable to work in his usual occupation for the foreseeable future.”
In October 2008 QBE forwarded a copy of Dr Boyce’s report of 29 September 2008 (see paragraph [41] below) to Professor Day and requested his response to seven questions. The questions and the Professor’s hand written responses, so far as they can be deciphered, are set out below:
1.Has your original diagnosis changed? If so, please provide your renewed diagnosis.
No
2.Has your opinion regarding the treatment of the injured worker changed? If so, how?
Yes. No treatment required.
3.Is surgical intervention still required? If so, why?
No.
4.Given Dr Boyce’s opinion, is the requirement of surgery related to a workplace injury or a type of pre-existing/degenerative change which is non work related? No treatment is required.
5.In your opinion, what is Mr Watson’s current fitness for work?
He needs to be [indecipherable].
6.If Mr Watson is unfit for work, is this related to his alleged workplace injury, or an injury which is non work related?
He appears to be fit for work ? what type.
7.Are there any restrictions on the type of work that he would be capable of? Please advise of the workers [sic] capacity in regards to hours and tolerances (lifting, bending etc).
This needs be assessed after he is [indecipherable].”
The Appellant’s Case
Surveillance Video
QBE arranged for Mr Watson to be placed under surveillance over three separate periods. First, on 4, 6, 7, 13 and 16 December 2007, second, on 3, 12 and 13 January 2008, and, last, on 26, 27 and 30 August 2008.
M & A Investigations (‘M & A’) conducted the first two periods of surveillance and prepared two reports, dated 17 December 2007 and 14 January 2008. The December 2007 report records that 23 minutes 17 seconds of film was exposed and the January 2008 report records that 8 minutes and 50 seconds of film was exposed. None of the film referred to in those reports has been tendered.
A different company, MJM Investigations (Australia) Pty Ltd, conducted the third period of surveillance. Over the three days involved its operatives recorded approximately 20 minutes of film. This film has been tendered and I have viewed it. On 26 August 2008, Mr Watson is filmed for a few minutes standing smoking a cigarette. On 27 August 2008, Mr Watson is seen standing talking to an acquaintance for a few minutes at about 7:20am. Later that morning he is observed at a shopping centre where he is seen to walk with a slightly uneven gait. At about 8:54am Mr Watson is seen to lift what appears to be a folded chair from a shopping trolley and place it into the boot of his car. Immediately after doing so, Mr Watson is seen to limp as he pushes the empty shopping trolley in a short distance. At about 9:56am Mr Watson is seen to enter a Nissan Navarra utility. At about 10:33am he is observed bending from the waist on several occasions lifting about nine bricks and placing them on a trailer attached to the utility. No other relevant activities are recorded in the film.
Medical Evidence
QBE qualified Dr Boyce, consultant neurologist, who examined Mr Watson on 22 October 2007. Dr Boyce noted Mr Watson’s complaint of continuing discomfort in his lower back with some radiation to the left buttock. On examination, he observed spasm in the paralumbar region and that Mr Watson’s movements were extremely restricted. There was, however, no reflex abnormality, nor any significant sensory abnormality noted. He agreed with the radiological findings of spondylolisthesis and added that the x-rays showed a minor L5/S1 disc protrusion with slight involvement of the left L5/S1 nerve root. He concluded that Mr Watson had suffered a significant aggravation to his pre-existing degenerative changes in his lower back and spondylolisthesis, and that the aggravation had not ceased. Though he felt that Mr Watson’s signs were out of proportion to the degree of movement noted in distraction, he considered that Mr Watson was fit for retraining in a less arduous occupation with no heavy lifting, perhaps beyond 15 kg. He thought it highly unlikely that Mr Watson would be fit for the very heavy type of lifting he had been doing with the appellant. He strongly recommended a concerted back rehabilitation and mobilisation program.
Dr Boyce took a history of an incident on 26 July 2007 (presumably, 13 September 2007) when Mr Watson was bumped by a car. He recorded that this incident did not cause any exacerbation of his back problem.
Dr Boyce re-examined Mr Watson on 29 September 2008 when he took a similar history to that recorded in October 2007. On examination, he found Mr Watson’s ability to flex to be reduced to 20°. As before, he found no weakness or wasting in the legs. Sensory examination was inconsistent and did not represent any true anatomical dermatome. Dr Boyce also viewed the film taken by investigators of Mr Watson on 26 and 27 August 2008. In respect of the film, Dr Boyce said (at page five):
“All of these show Mr Watson carrying out activities that he advised he was unable to perform either in terms of history, or in terms of my clinical examination.”
Under “Diagnosis”, Dr Boyce said:
“On the basis of the information provided to me, particularly by the MJM Investigators, and the activities that I have seen Mr Watson perform, I would be extremely skeptical [sic] of the history provided to me by Mr Watson. Secondly, by the movement that he gave during the examination I would be of the opinion that this man had a temporary exacerbation of of [sic] an underlying anatomical abnormality (spondylolisthesis); and this has ceased.”
On the question of fitness for employment, Dr Boyce stated that Mr Watson was fit for employment as a bricklayer, which he seemed to be able to carry out as shown by the private investigators. The doctor added that the temporary exacerbation of the underlying constitutional back defect had ceased and that Mr Watson was “fit to resume his pre-injury occupation. The ongoing incapacity therefore is not due to the work injury.” He felt that Mr Watson should be “back at work doing the type of work shown by the…investigator, namely that of carrying bricks on a regular basis.” In respect of the need for formal rehabilitation, Dr Boyce said, “if he required formal rehabilitation then he would not be doing the brickwork that he is currently doing.” In respect of the need for operative treatment, the doctor added:
“In a case such as Mr Watson’s where the man he is able to get back to work and carry out active brickwork as shown by the private investigator, I would find it extremely unlikely that any operative treatment is indicated.”
THE ARBITRATOR’S REASONS
The Arbitrator’s Statement of Reasons (‘Reasons’) may be summarised as follows:
(a)the surveillance video did not indicate that Mr Watson was capable of working as a bricklayer, or even a bricklayer’s labourer, nor did it show that Mr Watson could “carry bricks on a regular basis”, as stated by Dr Boyce. Though the surveillance showed him to have some ability to do some work, Dr Boyce’s report and opinion ought to be given little weight so far as Mr Watson’s fitness for work was concerned as he drew conclusions from the video surveillance that were not supportable (Reasons at [22]);
(b)Dr Boyce’s conclusions in his first report of October 2007 were still valid (Reasons at [23]);
(c)with the lifting restrictions referred to by Dr Langley, Mr Watson would not be able to obtain employment in the building industry, nor could he be gainfully employed in another occupation given his lifting restrictions and work history (Reasons at [28]), and
(d)Mr Watson was totally incapacitated for work and entitled to weekly compensation at the maximum statutory rate for a worker with three dependent children from 13 December 2008 to date and continuing.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to make findings as to Mr Watson’s credit;
(b)failing to have regard to the surveillance material;
(c)failing to have regard to the whole of Dr Boyce’s opinion when purporting to rely upon part of it;
(d)misdirecting himself in relation to the medical evidence;
(e)failing to properly consider the evidence relating to the extent of Mr Watson’s work history and residual work capacity;
(f)finding that Mr Watson was and is totally incapacitated;
(g)finding that Dr Langley had found that Mr Watson was restricted to lifting up to 5 kgs;
(h)failing to draw the appropriate inference from the absence of opinions on the issue of incapacity in the reports of Dr Langley and Professor Day;
(i)failing to have due regard to the weight of evidence when determining the issue of incapacity, and
(j)failing to give adequate reasons.
Though there are 10 alleged grounds of appeal, the appellant’s submissions do not follow the grounds of appeal and, as a consequence, are difficult to follow, generally unhelpful and, in several instances, misguided. The submissions are set out under the following headings (which I have set out below): introduction, credit and the surveillance material, medical evidence, Mr Watson’s residual capacity, Jones v Dunkel, and reasons. The appellant’s essential complaint is that the Arbitrator has not properly considered all of the evidence and that his conclusions are not supported by the evidence or by proper reasons.
SUBMISSIONS, DISCUSSION AND FINDINGS
Introduction
Though one of its complaints is that the Arbitrator failed to make a finding as to injury, the appellant concedes in its introduction that injury was not in issue. Given that appropriate concession, and the way the case was conducted at arbitration (as a dispute about incapacity), it is difficult to see why it is now argued that the Arbitrator erred in not making a finding on injury. This issue is discussed further at [53] below.
Reference also is made to the evidence on incapacity and it is submitted, “a proper assessment of all of the evidence would have yielded an award in the Worker’s favour in the order of $200.00 per week”. It is therefore presumably conceded that, as a result of his work injury, Mr Watson is incapacitated on the open labour market and has a residual earning capacity of $600.00 per week as a storeman or performing light manual work. For the reasons set out below, I do not accept this submission.
Credit and Surveillance Material
The appellant submits:
(a)the Arbitrator failed to make his own assessment of the surveillance video or of its impact on Mr Watson’s credit and the evidence generally;
(b)the Arbitrator made no specific finding as to the nature and extent of the injury sustained by Mr Watson and failed to make a proper enquiry into his residual work capacity based on an assessment of his physical capabilities;
(c)having noted that the surveillance showed Mr Watson to have some ability to do some work (Reasons at [22]), the Arbitrator drew no conclusions from the surveillance, either as to Mr Watson’s credit or capacity;
(d)Mr Watson’s statements and the histories he provided to the doctors are all at odds with the activities disclosed in the surveillance video. The Arbitrator did not analyse whether he accepted or rejected the veracity of the histories and complaints recorded by the medical experts. The Arbitrator was obliged to objectively assess any inconsistencies between the medical histories and the surveillance video. In not doing so he failed to consider all of the evidence;
(e)had the Arbitrator considered the surveillance video, he would have found some exaggeration on Mr Watson’s part and he would have taken that into account when undertaking a proper analysis of the evidence;
(f)there is no insight in the Reasons as to why the Arbitrator completely dismissed the video. He appears to have overlooked it;
(g)the video surveillance is relevant to Mr Watson’s capacity, the inconsistencies observed by Dr Boyce in his earlier report, the subjective nature of Mr Watson’s complaints, the change of opinion by the treating orthopaedic surgeon in light of the film, the history provided to Dr Langley, and the dearth of evidence in the worker’s case on the key issue of incapacity.
It is submitted on behalf of Mr Watson that:
(a)the Arbitrator did make findings as to the worker’s credit;
(b)at the arbitration, counsel for the employer did not submit that Mr Watson’s credit was specifically or seriously in issue, but submitted that it came down to “acceptance or otherwise of the worker” (T13.12). He did not seek leave to cross-examine the worker and conceded that there was evidence supportive of some incapacity, but there was also evidence supportive of a residual capacity;
(c)at [15] of his Reasons, the Arbitrator referred to the appellant’s submission that, based on the findings on examination and the surveillance video, Mr Watson’s presentation at the conciliation and arbitration was evidence of some exaggeration;
(d)at [26] of his Reasons , the Arbitrator considered Mr Watson’s evidence in relation to the surveillance video and also the corroborating evidence of Mr Smith;
(e)at [22] of his Reasons , the Arbitrator determined the issue of Mr Watson’s credit in the context of the surveillance video. He said that it did not indicate that Mr Watson was capable of working as a bricklayer, or even as a bricklayer’s labourer, as he did not show that he was capable of carrying bricks on a regular basis;
(f)therefore, on a fair reading of the Arbitrator’s Reasons , the Arbitrator accepted Mr Watson as a witness of credit having regard to the totality of the evidence before him and the submissions made by the appellant;
(g)there is no incontrovertible evidence indicative of error which was not adequately dealt with by the Arbitrator;
(h)the Arbitrator referred to and considered the surveillance video at paragraphs [6], [8], [9], [10], [12], [13], [15], [18], [19], [20], [22] and [26] of his Reasons;
(i)at the arbitration, counsel for the appellant conceded, and the Arbitrator found, that Mr Watson could not do full-time work as a bricklayer (T12.58).
I do not accept the appellant’s submissions. The Arbitrator considered the video surveillance and determined that it did not indicate that Mr Watson was capable of working as a bricklayer or even a bricklayer’s labourer. I have viewed the video surveillance and fully agree with that conclusion. Not only does the video not show that Mr Watson is capable of working as a bricklayer, as asserted by Dr Boyce, it provides considerable corroboration for Mr Watson’s complaints in that it shows him walking with a limp. Whilst it also showed him lifting about nine bricks, I accept Mr Watson’s unchallenged evidence that the bricks did not weigh very much and that he moved them after he had taken medication and consumed alcohol.
I have found the surveillance video to be of limited probative value in the assessment of this case. The episode with the bricks took no more than a few minutes. Apart from that episode, surveillance conducted over 40 hours failed to reveal any activities inconsistent with Mr Watson’s complaints.
It is true that the Arbitrator made no specific finding as to the nature and extent of Mr Watson’s injury. That is hardly surprising since the appellant’s counsel at the arbitration submitted that the issue was “incapacity” (T11.53) and argued that there was “at least a degree of exaggeration” (T11.57). The nature and extent of Mr Watson’s injury was never disputed at the arbitration and the Arbitrator correctly noted that the issue in dispute was Mr Watson’s entitlement to weekly payments of compensation (Reasons at [4]). The medical evidence is unanimous that Mr Watson injured his back at work and that his injury is an aggravation of a pre-existing spondylolisthesis at the L5/S1 level. If it is considered necessary, I make that finding and I also find that the aggravation is continuing. Given the way the arbitration was conducted, the submission that the Arbitrator erred by not making a finding as to injury is specious.
Contrary to the appellant’s submission, the Arbitrator did draw conclusions about the surveillance video. He concluded that the video showed that Mr Watson had some ability to do some work, but Dr Boyce’s evidence ought be given little weight on the question of fitness for work because he drew conclusions from the video that were not sustainable. I agree with the Arbitrator’s conclusion. Dr Boyce’s evidence after seeing the video was that Mr Watson seemed to be able to carry out the work of a bricklayer. Dr Boyce has ignored that part of the video that showed Mr Watson walking with a limp, that Mr Watson was inactive during the overwhelming majority of the periods he was under surveillance, and that Mr Watson only lifted about nine bricks. The video demonstrates little, if anything, about Mr Watson’s capacity to earn on the open labour market. Given Mr Watson’s evidence about his consumption of alcohol and medication on the day of the relevant video was taken, I do not believe the surveillance video is of any probative value on the issue of incapacity. It does not undermine Mr Watson’s credit and does not advance the appellant’s case on capacity.
To the extent that the activities in the video are inconsistent with Mr Watson’s presentation to the medical experts, that inconsistency is explained by Mr Watson’s evidence that he had consumed alcohol and analgesics on the day he moved the bricks. I accept Mr Watson’s explanation and I find that he remains significantly incapacitated as a result of his injury. The evidence from his wife, which I accept, substantially corroborates this conclusion.
I do not accept the appellant’s submission that Mr Watson’s complaints are subjective in nature. The objective evidence is that Mr Watson has a spondylolisthesis at L5/S1 and that that condition was aggravated as a result of his work injury with the appellant on 7 August 2007. Dr Boyce’s observation of spasm in Mr Watson’s low back is clear objective evidence that further corroborates Mr Watson’s complaints.
Medical Evidence
It is submitted on behalf of the appellant that:
(a)the Arbitrator failed to refer to Dr Young’s report of 4 February 2008 in which he stated that Mr Watson was “unable to work in his usual occupation for the foreseeable future”. That opinion only supports a finding of partial incapacity;
(b)Dr Boyce stated in his first report that Mr Watson had signs that were “out of proportion to the degree of movement noted in distraction”, that he was fit for retraining in a less arduous occupation with no heavy lifting, and that he should not be off work for more than six months;
(c)Dr Boyce stated in his second report that the surveillance video showed Mr Watson carrying out activities that he advised he was unable to perform. As a result, he was extremely sceptical of Mr Watson’s history and he concluded that Mr Watson suffered only a temporary exacerbation of an underlying anatomical abnormality (spondylolisthesis);
(d)it was not open to the Arbitrator to accept part and reject part of Dr Boyce’s opinion. The Arbitrator has purported to rely on a conclusion which the appellant submits cannot be supported by Dr Boyce’s opinion;
(e)the Arbitrator did not address the inconsistency in Mr Watson’s presentation at Dr Boyce’s first examination, and
(f)it was not open to the Arbitrator to approach Dr Boyce’s opinion as if the film did not exist.
It is submitted on behalf of Mr Watson that:
(a)it was open to the Arbitrator to reject Dr Boyce’s interpretation of the surveillance material;
(b)the Arbitrator rejected Dr Boyce’s evidence because he disagreed with the doctor’s conclusions about the surveillance video, and
(c)the Arbitrator had had the benefit of all of the other evidence concerning the surveillance video and was in a better position than Dr Boyce to determine its relevance and meaning.
It is correct that the Arbitrator failed to refer to Dr Young’s report of 4 February 2008. I agree that that report declared Mr Watson to be unfit for his usual occupation and that it expressed no opinion as to his fitness for alternative work. That is not, however, determinative of the issue of incapacity. The Commission is required to consider all relevant evidence and the relevant authorities before reaching a conclusion on such an issue.
Whilst Dr Boyce concluded in his first report that Mr Watson was fit for retraining in less arduous work with no heavy lifting, other than the work of a storeman no viable alternative occupation has been suggested and he has not been offered any retraining or rehabilitation. Given Mr Watson’s evidence, which I accept, that he had no back symptoms prior to 7 August 2007 and given the objective findings in the MRI scan, I do not accept Dr Boyce’s opinion that Mr Watson should only have been off work for six months and that he only suffered a temporary exacerbation.
So far as Dr Boyce’s opinion is based on the surveillance video, I have already dealt with this evidence. I confirm that I do not accept that the video is determinative of the issue of incapacity. Its relevance must be assessed and weighed against all of the available evidence. Having done that I conclude that the surveillance video is of limited probative value in determining Mr Watson’s capacity for work in the labour market reasonably accessible to him.
It is always open to a tribunal of fact to accept some evidence from a witness and to reject other evidence from that witness, depending on the context of that evidence and the persuasive value of the totality of the evidence tendered. The Arbitrator did not accept Dr Boyce’s opinion that Mr Watson suffered no more than a temporary exacerbation in the incident on 7 August 2007. Based on the evidence from Mr Watson and Dr Langley, which I accept, and having carefully considered the weight to be attached to the surveillance video, I reject Dr Boyce’s evidence on incapacity and whether the effect of the injury has ceased. Dr Boyce placed excessive and completely unwarranted weight on the surveillance video, which he wrongly thought demonstrated Mr Watson to be capable of carrying out the work of a bricklayer. That conclusion clearly coloured his opinion and assessment of Mr Watson’s claim in a manner that was not justified.
To the extent that Mr Watson’s presentation to Dr Boyce was inconsistent, I do not accept that that inconsistency so undermines his case that it leads to the conclusion urged by the appellant on review. As noted above, Dr Boyce failed to acknowledge the fact that the video showed Mr Watson walking with a limp and failed to consider the evidence tendered in Mr Watson’s case from Mr Smith and Mrs Watson.
I do not accept that the Arbitrator approached Dr Boyce’s evidence as if the film did not exist. If he did approach the evidence in that way, I have carefully considered the content of, and weight to be attached to, the surveillance video on review and have concluded that it makes no difference to the end result.
I have carefully considered Professor Day’s evidence in general and his report of 29 September 2008 in particular. For the following reasons, I find his report of 29 September 2008 of limited assistance in resolving the issue of incapacity. First, it is not clear if he observed the video that showed Mr Watson limping. Second, parts of the report are illegible. Last, even with the information forwarded to him, he did not change his diagnosis.
Mr Watson’s Residual Capacity
It is submitted on behalf of the appellant that:
(a)the Arbitrator made no specific finding that Mr Watson is incapacitated for his pre-accident work and he made no proper findings in relation to his residual capacity;
(b)the Arbitrator misunderstood Dr Langley’s report. The 5 kg limit referred to by Dr Langley came from the history provided by Mr Watson, not from the doctor. In the absence of support for a lifting limit of 5 kg, the Arbitrator’s finding is not sustainable;
(c)Mr Watson has worked as a storeman, a machine operator, in skilled labouring positions, in his own business as a sub-contractor, and gave evidence that he is a quick learner and can work with his hands;
(d)the Arbitrator made no proper findings in relation to Mr Watson’s residual capacity, and
(e)the Arbitrator did not refer to Dr Langley’s evidence, which set out Mr Watson’s employment history and qualifications.
It is submitted on behalf of Mr Watson that:
(a)the Arbitrator concluded that Mr Watson is not fit for labouring type occupations within the building industry and that, given his lifting restrictions and work history, he could not be gainfully employed in another occupation, and
(b)Mr Watson did not complete high school, has no tertiary or trade qualifications and his employment history reflects entirely heavy manual work. It is against this background that the Arbitrator correctly concluded that Mr Watson could not reasonably obtain employment and this finding was reasonably open and is a sound finding of fact.
It is of no consequence that the Arbitrator did not specifically refer to Mr Watson being incapacitated for his pre-accident work. His Reasons make it abundantly clear that that was his view and I agree with that conclusion. The factual investigation completed by MJM on 23 April 2008 reveals that Mr Watson’s pre-injury duties included electric welding and general labouring that involved physically lifting steel and timber products. Mr Stratford, a co-worker, states that the steel beam Mr Watson lifted (with others) on the 7 August 2007 weighed between 80 and 100 kg. I accept that the pre-accident work was heavy and physically demanding and that, because of his back injury, it is work Mr Watson is now incapable of performing.
I do not accept that the Arbitrator misunderstood Dr Langley’s report. It is correct that Dr Langley recorded under “present complaints” that Mr Watson could only lift up to 5 kg at one time. Dr Langley then examined Mr Watson and reviewed the x-ray reports and concluded under “opinion” that “he is not working at present as he has difficulty bending and lifting and his lifting is reduced to five (5) kilogrammes [sic] at one time.” Dr Langley felt that that disability would continue in the future and that Mr Watson had “objective symptoms of pain”. Given the structure of Dr Langley’s report, I have no hesitation in finding that the 5 kg lifting restriction is a restriction that Dr Langley placed on Mr Watson. I accept that that restriction is reasonable and that it results from the incident at work on 7 August 2007.
The appellant’s submission that the Arbitrator did not refer to Mr Watson’s work history is inaccurate. The Arbitrator expressly noted that Mr Watson has worked in labouring occupations in the building industry and as a storeman. That he did not refer to the fact that Mr Watson had previously worked as a machine operator, in skilled labouring positions, and as a sub-contractor in his own business and is a quick learner is not determinative.
The appellant’s case on incapacity rests mainly, but not exclusively, on Dr Boyce’s evidence that Mr Watson is fit for his pre-injury employment. As noted above, I do not accept Dr Boyce’s evidence on incapacity. The bald assertion that Mr Watson has previously worked in other manual occupations and is a quick learner does not advance the appellant’s case on incapacity in circumstances where there is no evidence that he is fit to perform any of his pre-injury jobs. The Arbitrator’s failure to refer specifically to the work history recorded by Dr Langley is of no consequence.
I note that Mr Watson has completed a small business course, has worked in many physical jobs in the past, and that he holds a forklift ticket. However, given Mr Watson’s evidence, which I accept, that he is unable to work because of severe back and leg pain, I do not believe that Dr Langley’s history of his work experience makes any relevant difference to the assessment of his capacity to earn in the labour market reasonably accessible to him.
Other than Dr Boyce’s evidence, which I reject, the appellant has tendered no evidence to support its submission that Mr Watson could work as a storeman. From the figures submitted in the ‘introduction’ to the appellant’s submissions on appeal, I infer that it is submitted that Mr Watson could work part-time as a storeman. The basis for this submission is not explained and, in the absence of evidence as to Mr Watson’s fitness and suitability for work as a storeman, and evidence as to the availability of such work in the area where Mr Watson lives, I do not accept it. Remarkably, the appellant has not offered Mr Watson any rehabilitation training, let alone the concerted back rehabilitation and mobilisation that Dr Boyce recommended. Having regard to Mr Watson’s limited education, the nature and extent of his injury, the fact that he has only ever worked in physical jobs that are no longer within his physical capacity, and the absence of any rehabilitation training or vocational assessments by the insurer, the finding of total incapacity is appropriate.
Dealing with the question of total incapacity, Mahoney P (Handley and Powell JJA agreeing) observed (at 213) in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206:
“The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income…in assessing whether a worker is a wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, ceased when the pain he suffers becomes unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which will permit him to do work in the relevant labour market.”
The above approach was followed in Moran Health Care Services v Woods (1997) 14 NSWCCR 499. In that case the Court rejected the employer’s argument that occasional part-time work of a light nature may have been available in the accessible labour market with the result that it was not open to the trial judge to find total incapacity. Mason P (Beazley and Grove JJA agreeing) said at 503:
“In my view the appellant’s ‘eye of the needle’ test does not represent a correct approach to the concept of ‘total incapacity’. There will be a number of cases where, despite evidence or concession that the worker might be able to perform some tasks in some circumstances, such a finding is sustainable in law. After all, a manual labourer who is rendered a quadriplegic may be able to perform tasks using only his or her voice, yet one would not expect to see a finding of total incapacity challenged on the ground of legal error. In this, as in most areas of the law, the requirement of reasonableness and the principles clustering around the maxim de minimis non curat lex have work to do. It must not be forgotten that workers compensation legislation is remedial.”
The above principles are applicable in the present case. Whilst Dr Langley’s evidence implies that Mr Watson has some earning capacity and Dr Young’s certificates are entitled to limited weight (because he has not explained the basis for his opinion), I am required to assess Mr Watson’s “capacity ‘for work’” having regard to the realities of the labour market. Having regard to Mr Watson’s evidence as to the nature and extent of his restrictions, which is partly corroborated by the video surveillance, I am comfortably satisfied that the Arbitrator’s decision that Mr Watson is totally unfit reflects the true and correct position.
Jones v Dunkel
It is submitted that Mr Watson did not adduce evidence from Dr Langley or Professor Day on the issue of incapacity and, given that that was the ultimate issue to be determined, an adverse inference should be drawn against him. I do not agree that there is no evidence from Dr Langley on the issue of incapacity. Dr Langley’s evidence, which I accept, is that Mr Watson has difficulty bending and lifting and that his lifting was reduced to 5 kg at one time.
Professor Day has also expressed an opinion on incapacity. In his handwritten reply to QBE dated 11 October 2008 he said that Mr Watson appeared to be “fit for work ? what work”. Other than this report there is no evidence that the Professor was asked to prepare any report dealing with incapacity.
The Jones v Dunkel submission has no basis.
Reasons
The appellant submits that the Arbitrator failed in his duty to record the findings he made based on the evidence (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). The Arbitrator’s reasons for finding Mr Watson to be totally incapacitated for work are found at [28] of his decision. They are that Mr Watson:
(a)is restricted to a lifting limit of 5 kg;
(b)has always worked in labouring type occupations in the building industry;
(c)would not be able to find employment in that industry, and
(d)he could not be gainfully employed in another occupation, given his lifting restrictions and work history.
Whilst these reasons are brief, they articulate the essential ground or grounds upon which the conclusion of total incapacity rests (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247), namely, that as a result of his injury and resulting restrictions, and his work history, Mr Watson could not be gainfully employed in another occupation. For the additional reasons given in this decision, I agree with that conclusion.
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; (2007) 5 DDCR 287 at [28]), I have concluded that the Arbitrator’s decision is correct and, for the reasons given in this decision, I agree with his conclusions.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 16 April 2009 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
5 August 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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