Secretary, Department of Family and Community Services v Victoire
[2014] NSWWCCPD 44
•22 July 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Secretary, Department of Family and Community Services v Victoire [2014] NSWWCCPD 44 | ||
| APPELLANT: | Secretary, Department of Family and Community Services | ||
| RESPONDENT: | Alain Victoire | ||
| INSURER: | QBE Insurance (Australia) Ltd | ||
| FILE NUMBER: | A1-1941/13 | ||
| ARBITRATOR: | Mr B Batchelor | ||
| DATE OF ARBITRATOR’S DECISION: | 25 March 2014 | ||
| DATE OF APPEAL DECISION: | 22 July 2014 | ||
| SUBJECT MATTER OF DECISION: | Challenge to factual findings in respect of injury; weight of evidence; assessment of evidence; failure to comply with Practice Direction No 6 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Bartier Perry | |
| Respondent: | Firths – The Compensation Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The name of the appellant employer is amended to be Secretary, Department of Family and Community Services. 2. Leave to appeal is granted. 3. The Arbitrator’s determination of 25 March 2014 is confirmed. 4. The matter is remitted to the same Arbitrator for determination of all outstanding issues. 5. The appellant employer is to pay the respondent worker’s costs of the appeal. | ||
INTRODUCTION
In this matter, the worker injured his cervical spine and left shoulder when he was assaulted in the course of his employment on 28 February 2004. The issue on appeal is whether the Arbitrator erred in finding that, in addition to injuring his cervical spine and left shoulder, the worker also injured his thoracic spine in the same incident. For the reasons explained below, the Arbitrator did not err and his decision is confirmed.
BACKGROUND
The respondent worker, Alain Victoire, has worked for the appellant employer, Secretary, Department of Family and Community Services, since 1999 as a disability support worker. (The name of the appellant has been amended to be consistent with Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 and Pt 1 of Sch 1 of the Government Sector Employment Act 2013 (NSW)). At the time of his injury, Mr Victoire worked at Cabramatta Respite, a place for disabled persons suffering physical, intellectual and borderline psychiatric disabilities.
On 28 February 2004, one of the clients at the centre, John, described in the evidence as a “big man” in his early twenties, absconded from the centre by jumping over a fence. Mr Victoire followed him and sought to direct him to return to the centre. The client, who was quite agitated, forcibly grabbed Mr Victoire’s left arm, twisted it, and pushed Mr Victoire “back forcibly into a fence with at least two powerful impacts”. The patient then let go of Mr Victoire’s arm and Mr Victoire was able to escort him back to the centre.
At the time, Mr Victoire was in “considerable pain” and an ice pack was applied to his left shoulder. He attended Liverpool Hospital for treatment and was off work for approximately three days. He saw his general practitioner, Dr Dara Chung, who, because of ongoing symptoms, referred Mr Victoire for x-rays of his cervical spine and lower thoracic spine on 2 March 2004.
On 1 June 2004, the same patient assaulted Mr Victoire again by grabbing his left arm and dragging him towards a wall while Mr Victoire was sitting on a chair. Mr Victoire felt an electric shock-like sensation into his left arm. He again saw Dr Chung and was off work for one week.
In an undated and unsigned statement, Mr Victoire said that these incidents left him with the following disabilities and problems:
(a) a frequent aching, burning sensation in his left upper arm;
(b) pain and stiffness in his neck and left shoulder;
(c) difficulty using his left arm outstretched or overhead;
(d) ongoing “upper-mid back pain with an occasional burning sensation at the left side”;
(e) difficulty with the heavier jobs in and around the home, and
(f) the need to see a counsellor as a result of his injuries, pain and difficulties.
Over the years, Dr Hugh Jones, orthopaedic surgeon, Dr Dalton, sports physician, Dr Desmond Bokor, shoulder and elbow surgeon, among others, have treated Mr Victoire for his injuries.
By letter dated 15 June 2009, Mr Victoire claimed lump sum compensation of $17,000 with respect to a 13 per cent whole person impairment as a result of injuries to his cervical spine, thoracic spine and left shoulder on 28 February 2004 and 1 June 2004.
The claim was supported by a report from Dr Patrick, orthopaedic surgeon, dated 21 April 2009, in which he assessed Mr Victoire to have the following impairments due to the work incidents after deductions for pre-existing conditions: six per cent due to his cervical spine injury (seven per cent without the deduction); four per cent due to his thoracic spine injury (five per cent without the deduction), and three per cent due to the injury to his left upper extremity.
On or about 25 September 2009, Mr Victoire settled a claim for lump sum compensation for the injury to his left upper extremity for $2,500, representing a two per cent whole person impairment.
On 30 January 2013, Mr Victoire commenced proceedings in the Commission in which he claimed lump sum compensation of $13,000 ($15,500 less the $2,500 previously paid for the left upper extremity) in respect of a 12 per cent whole person impairment, plus $20,000 for pain and suffering. The 12 per cent was arrived at by combing the impairments for the cervical spine (seven per cent) and the thoracic spine (five per cent) without allowing for any pre-existing conditions.
The appellant disputed liability on the ground that Mr Victoire did not injure his thoracic spine on either 28 February 2004 or 1 June 2004, it being conceded that he had injured his cervical spine on 28 February 2004.
After hearing submissions from both sides on 24 March 2014, but no oral evidence, the Arbitrator delivered an extempore decision in which he found that Mr Victoire injured his thoracic spine on 28 February 2004. The Commission issued a Certificate of Determination on 25 March 2014 in the following terms:
“1.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment as a result of injuries to the cervical spine and thoracic spine on 28 February 2004.
2. The documents to be referred to the Approved Medical Specialist are:
(a) the Application to Resolve a Dispute and attachments;
(b) the Reply and attachments;
(c)Application to Admit Late Documents dated and received 18 March 2014 and attachments;
(d)Application to Admit Late documents dated 19 March 2014 received 20 March 2014 and attachments, and
(e)“report” of Dr Dara Chung dated 24 March 2014 (endorsed on letter from Firths to Dr Dara Chung dated 6 March 2014).
3.The respondent is to pay the applicant’s costs as agreed or assessed and for the purpose of this order, on the application of the applicant not opposed by the respondent, the matter is certified as complex due to the issue of the injury to thoracic spine.
Allow 15 per cent costs uplift to the applicant and the respondent.”
The appellant has challenged the Arbitrator’s finding that Mr Victoire injured his thoracic spine on 28 February 2004.
INTERLOCUTORY
Both parties have incorrectly asserted that the appeal is not an appeal against interlocutory orders.
Though Mr Victoire’s impairments have been assessed by an Approved Medical Specialist (AMS), as the Commission has not made any formal orders finally determining the parties’ rights, the Arbitrator’s orders are interlocutory (Licul v Corney [1976] HCA 6; 180 CLR 213 at 443–4) and the appellant requires leave to appeal (s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). (I should add that, though the AMS has issued a Medical Assessment Certificate, as neither party has sought to tender that document as fresh evidence on appeal, I have not had regard to it.)
If the appeal is successful, Mr Victoire will have no entitlement to lump sum compensation for the impairment assessed by the AMS in respect of his thoracic spine. This will be relevant to his entitlement to compensation for pain and suffering, which has not yet been assessed. That is because his impairment from his cervical spine injury alone is not sufficient to meet the threshold for compensation for pain and suffering under s 67 (noting that this claim is not caught by the amendments introduced by the Workers Compensation Legislation Amendment Act 2012). It is therefore desirable for the proper and effective determination of the dispute that, before final orders are made, the issue of whether Mr Victoire injured his thoracic spine be determined. I therefore grant leave to appeal so that that issue can be determined.
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 Nos 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.
ISSUES IN DISPUTE
The appellant’s counsel, Jarryd Malouf, has asserted that the Arbitrator erred in finding that Mr Victoire injured his thoracic spine on 28 February 2004, because he:
(a) failed to consider and place due weight on the relevant contemporaneous evidence and “consequent medical evidence”;
(b) relied on an x-ray dated 2 March 2004 as evidence in support of Mr Victoire’s claim;
(c) relied on a finding by Dr Dalton, Mr Victoire’s treating specialist, of symptoms in Mr Victoire’s thoracic spine as evidence in support of the claim;
(d) found that, because the incident on 28 February 2004 was capable of causing injury to the cervical spine, it also caused injury to the thoracic spine, and
(e) found that the mechanism of injury was capable of causing injury to Mr Victoire’s thoracic spine.
SUBMISSIONS
Rather than addressing each ground of appeal, as required by Practice Direction No 6, Mr Malouf has provided what he described as a “critique” of the Arbitrator’s decision in which he has raised additional alleged errors that should have been identified as grounds of appeal. That was unhelpful and unsatisfactory. The legal profession is reminded, yet again, that appeals must clearly and succinctly state the grounds of appeal and provide submissions in support of each ground. Section 352 appeals are not a “critique” or “review” of an Arbitrator’s decision. They are restricted to the identification and correction of error.
Mr Malouf submitted that there was a “distinct lack of complaint with respect to the thoracic spine throughout the evidence before the Arbitrator”. He particularly noted the absence of such complaints in the claim form, the incident report form, Mr Victoire’s statement (which only had a reference to the “back”) and the WorkCover medical certificates between 2 March 2004 and 15 February 2012. This evidence ought to have “weighed heavily in the mind of the Arbitrator when determining whether or not an injury to the thoracic spine occurred”.
While the Arbitrator noted these submissions by the appellant’s counsel (about the lack of contemporaneous complaint of injury to the thoracic spine), he nonetheless determined that Mr Victoire had injured his thoracic spine. Mr Malouf submitted that the Arbitrator’s “bases for so finding are fundamentally flawed” because:
(a) the Arbitrator relied on the fact that an x-ray of Mr Victoire’s lower thoracic spine was performed on 2 March 2004 when Mr Victoire’s claim refers to pain in the upper to mid thoracic spine. Thus the x-ray, which did not reveal an injury, would be of little to no relevance to Mr Victoire’s claim;
(b) the Arbitrator erred in finding that there “clearly must have been some complaint by [Mr Victoire]” in relation to the thoracic spine for the x-ray to have occurred, because there was no evidence of this and this could only have been a finding by inference, which was not more probable, given that pain, discomfort or other symptoms of injury were never recorded prior to the x-ray, either in clinical notes or claim forms or incident reports. In any event, the area of complaint, if there was one, does not correlate with Mr Victoire’s current claim and cannot be evidence of injury to the upper/mid thoracic spine;
(c) the Arbitrator erred in relying on Dr Dalton’s finding of symptoms in the thoracic spine because, at most, Dr Dalton found stiffness in the thoracic spine 20 months after the date of injury. There was no evidence of pain, much less injury, in that area and Dr Dalton expressed no opinion as to what caused the stiffness and whether there was an injury in that area. Stiffness could have resulted from any number of conditions not directly related to the assault. As this finding was 20 months after 28 February 2004, it ought not to have been persuasive;
(d) the Arbitrator erred in finding, without medical evidence, that because the incident was capable of causing injury to the cervical spine, it also caused injury to the thoracic spine;
(e) the Arbitrator erred in finding, without medical evidence, that the mechanism of injury was capable of causing injury to Mr Victoire’s thoracic spine. Dr Patrick said that Mr Victoire “probably” sustained direct trauma to the upper/mid back, despite a history from Mr Victoire that failed to suggest any direct trauma to the thoracic spine, or pain in that region following the incident;
(f) even if the Arbitrator’s finding that it was “extremely possible” that Mr Victoire injured his thoracic spine is supported, “it does not suffice for the purposes of determining, at law, whether [Mr Victoire] sustained an injury on the balance of probabilities”;
(g) the Arbitrator failed to support his finding by determining what Mr Victoire’s injury was and how it was sustained, and
(h) on a proper and balanced view of the evidence, the Arbitrator could not have made a finding that Mr Victoire sustained an injury to his thoracic spine on 28 February 2004.
Counsel for Mr Victoire, Mr Goodrich, submitted that the Arbitrator made a finding of fact based on a rational approach to evidence that was rationally probative to the fact in issue and he pointed to a process of reasoning by which the evidence could do so.
DISCUSSION AND FINDINGS
It is convenient to deal with these submissions under the following headings: contemporaneous evidence; the March 2004 x-ray; Dr Dalton’s evidence; the cervical spine injury and the mechanism of injury; alleged failure to find that Mr Victoire sustained an injury on the balance of probabilities, and alleged failure to determine what the injury was and how it was sustained.
Contemporaneous evidence
It is difficult to know what to make of the submission that the absence of complaint of thoracic spine symptoms in the contemporaneous documents ought to have “weighed heavily in the mind of the Arbitrator when determining whether or not an injury to the thoracic spine occurred”. The Arbitrator was well aware of the contemporaneous documents and made specific reference to the lack of complaint about the thoracic spine in the evidence from Drs Jones and Bokor.
The Arbitrator also referred extensively (at T26) to the DAHC Disability Services Report (the Incident Report form) dated 28 February 2004. Though he did not expressly refer to it, there is no doubt that he was also aware of the lack of reference to the thoracic spine in the claim form. This is so from the fact that counsel expressly addressed on that document at T4.11 and the Arbitrator expressly enquired which paragraph counsel relied on.
The Arbitrator was not bound to reject the claim, and did not err in not finding against Mr Victoire, because of a lack of contemporaneous complaint in the medical evidence, the claim form and the Incident Report form of an injury to the thoracic spine. In the civil law, corroboration is not a technical term or a legal requirement. The task of a judge (or Arbitrator) is to decide, on the basis of the whole of the evidence, what he or she accepts (Chanaa v Zarour [2011] NSWCA 199 at [86]). The Arbitrator assessed the whole of the evidence and determined, for reasons stated, that he accepted that Mr Victoire injured his thoracic spine on 28 February 2004. For the reasons more fully explained below, that finding was open to him and disclosed no error.
The March 2004 x-ray
Dealing with the x-ray of the lower thoracic spine dated 2 March 2004, the Arbitrator acknowledged an absence of clinical notes (referring to the thoracic spine), but said (at T30.27) that he “infer[red] there must have been some complaint by [Mr Victoire] … or concern by the doctor of an injury to the thoracic spine”.
In circumstances where there is no evidence that Mr Victoire suffered any other trauma to his thoracic spine, and where the evidence was of Mr Victoire being “slammed” or “pushed” backwards into a fence a couple of times “with some force”, it was open, as a matter of logic and commonsense, for the Arbitrator to infer that either Mr Victoire complained about that part of his body or his doctor had some concern of an injury to the thoracic spine.
To suggest that there is some significance in the fact that the x-ray was of the lower thoracic spine and that it is therefore of little relevance, because Mr Victoire’s complaint is now of the upper to mid thoracic spine, is artificial and inaccurate. In his statement, Mr Victoire complained of “ongoing upper-mid back pain”, not “upper to mid thoracic spine pain”. (It should be noted that the thoracic spine includes the 12 vertebra from the bottom of the cervical spine to the top of the lumbar spine. Thus, it includes the upper and mid back.)
Mr Victoire’s complaints clearly encompass the lower thoracic spine, which is part of what a layperson would describe as the mid-back. It is therefore of no consequence that the x-ray was of the lower thoracic spine. The referral for the x-ray of the lower thoracic spine was a matter the Arbitrator was entitled to consider in his overall assessment of the claim. However, it was not determinative and the Arbitrator did not treat it as such. Thus, if the Arbitrator did err in relying on the x-ray of the lower thoracic spine, it has made no difference to the result.
The relevance of the submission that the x-ray did not reveal any injury is unclear. Mr Victoire never alleged that it did. He relied on Dr Patrick’s evidence, which was that he suffered an “upper/mid thoracic facet injury”.
Dr Dalton’s evidence
The Arbitrator referred to Dr Dalton’s report of 26 October 2005 at T22.21. After noting Mr Victoire’s complaints to Dr Dalton of left cervical pain, extending over the top of the shoulder, all the way down the arm to the hand and the anterior chest, the Arbitrator quoted (from T22.32) the following passage from the report:
“There was no sign of rotator cuff dysfunction or subacromial impingement. Upper limb tension tests were unremarkable or there was no neurological deficit. He was stiff through the thoracic spine with relative weakness of the scapular stabilizers. He did not have secondary hyperalgesia or cutaneous allodynia in the left shoulder girdle, anterior chest or upper limb.” (emphasis added)
After referring to the mechanism of injury (which I discuss further below), and the x-ray of the lower thoracic spine of 2 March 2004, the Arbitrator referred “finally” (T30.30) to the fact that Dr Dalton “found symptoms in the thoracic spine, albeit more than 12 months, in fact in October 2005, following the injury in February 2005” (T30.31).
The submission that the Arbitrator erred in relying on Dr Dalton’s findings seems to be based on the assertion that there was no evidence of pain in the thoracic spine or of an injury to the thoracic spine, nor any opinion by the doctor as to what caused the stiffness Dr Dalton found.
However, as Mr Goodrich submitted at the arbitration (at T12.27), Dr Dalton’s evidence must be “put in context”. That context includes the history Dr Dalton took. In the report of 26 October 2005, Dr Dalton took the following history:
“Thank you for asking me to see Alain Victoire who was injured at work in February 2004 when a client whom he was escorting grabbed him by his left arm, twisting it and pushing him against the wall. He injured his neck and left shoulder and was initially referred for physiotherapy but had ongoing left-sided neck and shoulder girdle pain.”
Mr Goodrich also referred (at T13.2) to Dr Dalton’s statement that Mr Victoire:
“had not really had much physiotherapy directed to the thoracic outlet and [the] cervicothoracic spine and I have recommended that he see Gaven Williams [a physiotherapist] to see if he can modify his symptoms before we proceed further.”
Mr Goodrich (correctly) reminded the Arbitrator that the thoracic outlet is “at the top of the thoracic spine” (T13.5). Though the Arbitrator did not expressly refer to this submission, he did note (at T23.20) Dr Dalton’s reference to the thoracic outlet in his referral to Gaven Williams.
It follows that, when read in its proper context, Dr Dalton’s failure to state expressly that Mr Victoire injured his thoracic spine on 28 February 2004, or that the stiffness in the thoracic spine was a result of that incident, is of no consequence. The doctor had a clear and consistent history of the incident and of continuing left-sided neck and shoulder girdle pain, and thoracic spine stiffness. In the absence of any other potential cause of that stiffness, the Arbitrator was entitled to rely on Dr Dalton’s evidence in his assessment of whether Mr Victoire injured his thoracic spine.
When the whole of the evidence is considered, Dr Dalton’s failure to refer to pain in the thoracic spine is also of no consequence. Moreover, the submission that there is no evidence of pain in that area is incorrect. The evidence of pain in the thoracic spine is found in the evidence from Mr Victoire’s treating psychologist, Stephen Whyte, and in Mr Victoire’s statement (where he said he had upper-mid back pain, that is, pain in the thoracic spine). As Mr Goodrich pointed out at the arbitration (at T13.17), the history recorded by Mr Whyte in his report of 24 September 2006 was that, as a result of the incident on 28 February 2004, Mr Victoire “developed significant levels of pain in his left shoulder, neck and shoulder blade and fingers”.
Mr Goodrich (correctly) added that the shoulder blade, “in a general non-medical term” (T13.18), is part of, or is in the proximity of, the thoracic spine, not the neck. The Arbitrator referred to that submission (at T25.5) as another matter that he should take into account in determining whether or not Mr Victoire injured his thoracic spine. Though he did not expressly say if he accepted it, reading the Arbitrator’s decision as a whole, it is tolerably clear that Mr Whyte’s history was a factor he took into account, as he was entitled to do, in his ultimate finding in favour of Mr Victoire.
The cervical spine injury and the mechanism of injury
Because they are interrelated, and because they both require a careful consideration of the Arbitrator’s reasons, it is convenient to deal with the cervical spine injury and the mechanism of injury together.
The Arbitrator dealt with the mechanism of the injury on 28 February 2004 in some detail. He referred to Mr Victoire’s evidence, and the evidence in the medical histories, that a patient had grabbed Mr Victoire and “flung [him] against a fence on two occasions, with some force” (T25.32). He then referred (at T26) to the Incident Report form of 28 February 2004, which confirmed that a client from the centre had grabbed Mr Victoire’s arm, twisted it, and “slam[med] [him] into the fence a couple of times” (T26.27). (I note, though the Arbitrator did not refer to it, that in the claim form Mr Victoire described the fence as a brick wall.)
The Arbitrator also referred to a hand written statement by a Mr Nairn, presumably a work colleague, attached to the Incident Report form, which dealt with the mechanism of the incident, adding that he (the Arbitrator) was of the view that the mechanism of the incident was “significant” (T27.19). In explaining why it was significant, the Arbitrator said (at T27.20) that he accepted “that [Mr Victoire] was grabbed by this patient, John, twisted and slammed a couple of times, with some force, into a fence”.
The Arbitrator then dealt, in some detail, with the evidence from Dr Allman, orthopaedic surgeon qualified by the appellant’s insurer. Of relevance to the appeal, the Arbitrator accurately recorded Dr Allman’s history that, in the tussle with the client, Mr Victoire was “smashed” (T28.2) against a wall, which “caused pain in his neck and shoulder regions” (T28.3).
The Arbitrator also quoted from Dr Allman’s supplementary report of 13 August 2009, where the doctor said the history he recevied from Mr Victoire about the first accident (the incident on 28 February 2004) “was more to the left scapula region posteriorly” (T29.16) and he was therefore unable to relate it (the incident on 28 February 2004) to the rotator cuff injury sustained in the incident on 1 June 2004.
Dr Allman added, as recorded by the Arbitrator at T29.27:
“It was entirely possible that in this process he significantly jarred his neck and neurological supply to his limb. However, [in] the second injury [in] June 2004 he described quite clearly how he was pulled, chair and all across the room by his left arm. This injury in my opinion was much more likely to have been associated to the injury of [sic] his shoulder joint itself and to the rotator cuff mechanism in particular.”
The Arbitrator said (at T30.4) that he quoted that passage because Dr Allman conceded that it was entirely possible that Mr Victoire significantly jarred his neck when he was thrown against the fence forcibly on two occasions. He added that he thought there was a reference (in the evidence) to Mr Victoire having been “thrown backwards into the fence, jarring his neck” (T30.9). He thought that it was probably on the basis of this opinion that the appellant did not contest injury to the neck.
Though the Arbitrator did not identify the source of the evidence that Mr Victoire was thrown backwards into the fence, it is in Mr Nairn’s statement, where he said that John had grabbed Mr Victoire’s arm “and twisted and pushed him backwards into the fence a couple of times”. As Mr Goodrich properly conceded at the arbitration, this was most probably something that Mr Nairn had been told (T18.11).
The Arbitrator then said, at T30.14:
“Having regard to the mechanism of injury as I have described it and the reports of that, which are consistent throughout all of the reports in [Mr Victoire’s] statement, my view is that it is extremely possible that [Mr Victoire] also injured his thoracic spine in some way and indeed, I find that it is probable that he suffered some sort of injury to his thoracic spine and I make that finding, having regard to the mechanism of injury I have just described.”
After referring again to the opinion of Dr Allman, the 2 March 2004 x-rays, and Dr Dalton’s finding of stiffness in the thoracic spine, and acknowledging the appellant’s submission that there was a paucity of reference to the thoracic spine in the medical reports, the Arbitrator concluded, at T31.4:
“my view is that on the balance of probabilities and in particular, having regard to the mechanism of injury and the concession by the [appellant] that it was quite possible that [Mr Victoire] suffered injury to his cervical spine - I withdraw that. More than a concession by the [appellant], the fact that [Mr Victoire] has suffered an injury to his cervical spine, my finding is that on 28 February 2004, he also suffered an injury to his thoracic spine. And for those reasons, injuries to the thoracic spine and the cervical spine will be referred to an AMS for assessment of whole person impairment.”
The above analysis demonstrates that, contrary to Mr Malouf’s submission, the Arbitrator did not find that because the incident was capable of causing injury to the cervical spine it also caused injury to the thoracic spine. He found that it was “extremely possible” that Mr Victoire also injured his thoracic spine in the same way he injured his neck, namely, by being slammed a couple of times, with some force, into a fence. The Arbitrator then found, on the balance of probabilities, consistent with the first finding, that the mechanism of injury and the concession that Mr Victoire injured his cervical spine in the incident, supported the conclusion that Mr Victoire also injured his thoracic spine in that incident.
In circumstances where there was no dispute that the incident was particularly violent, or that Mr Victoire was slammed backwards into a fence, or that that incident caused injury to his neck and pain in his left shoulder girdle/blade region, the Arbitrator’s reasoning process, and conclusions based on it, disclosed no error.
The submission that there is no medical evidence to support the proposition that the mechanism of injury was capable of causing injury to Mr Victoire’s thoracic spine has ignored the medical evidence and is plainly wrong.
Based on an accurate history, namely that Mr Victoire had been “forcibly” pushed into a fence, Dr Patrick concluded:
“Mr Alain Victoire presents as genuine.
He has been significantly assaulted during the course of his work as a carer with [the appellant] on 28 February 2004, sustaining a wrenching injury to [the] left upper extremity, and also significant neck strain injury, and probably direct trauma to [the] upper/mid back and left scapular region.
He has gone on to develop a significant post-traumatic subacromial bursitis/impingement at the left shoulder, with rotator cuff tendinosis, and likely partial tear of [the] supraspinatus of the rotator cuff.
He also sustained cervical zygapophyseal joint injury, with the possibility of minor disc injury at C3/4 level, and also upper/mid thoracic facet injury.”
It is hard to imagine clearer evidence that the mechanism of injury was the cause of the injury to the thoracic spine.
Mr Malouf’s criticism of Dr Patrick’s statement that Mr Victoire “probably” sustained direct trauma to the upper/mid back demonstrates a fundamental misunderstanding of the standard of proof in civil matters. Mr Victoire only had to establish his case on the balance of probabilities, not beyond reasonable doubt.
An opinion by a suitably qualified expert that it was probable that the worker sustained injury in the manner alleged, when considered with all the other evidence in the case, provided sound support for a finding in Mr Victoire’s favour. Indeed, as explained in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (Spigelman CJ at [89]–[90] and Stein JA at [201]), even without direct evidence, the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.
In the appropriate case, even in the absence of scientific certainty, causation may be found in arriving at legal responsibility by inference and with evaluative judgment, provided that actual satisfaction is reached (Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 per Giles JA (Beazley JA (as her Honour then was) agreeing) at [39]). In the same case, Ipp JA (Beazley and Giles JJA agreeing) observed, at [138]:
“The fact that experts do not infer causation on a balance of probabilities does not mean that a court may not: Seltsam Pty Ltd v McGuiness at [143]-[144]. A finding of causal connection may be made even when the expert evidence does not rise above the possible; the question is always whether the evidence as a whole establishes causation on a balance of probabilities: Seltsam Pty Ltd v McGuiness at [89], [94]-[96], [98]-[100], [102], [143], [144] and [153].”
The present case does not rely on inference. Dr Patrick provided a clear and unequivocal opinion that the incident on 28 February 2004 caused injury to Mr Victoire’s thoracic spine and his cervical spine. The appellant called no evidence challenging that opinion. The Arbitrator expressly referred (at T29) to Dr Allman’s evidence that he was asked to address Dr Patrick’s opinion that the whole 13 per cent impairment (including the impairment due to the injury to the thoracic spine) had been caused by the incident on 28 February 2004. The Arbitrator noted Dr Allman’s response that it was “entirely possible that in this process” Mr Victoire significantly jarred his neck and the neurological supply to his left arm (see the full quotes at [48] above). However, Dr Allman did not address the question put to him.
The submission that Mr Victoire gave no history of direct trauma to the thoracic spine, or pain in that region, following the accident is incorrect. As discussed above, Mr Victoire’s evidence was that, as a result of the incidents on 28 February 2004 and 1 June 2004, he suffered “ongoing upper-mid back pain with occasional burning sensation at the left side”. As Mr Goodrich submitted at the arbitration, that area could only be described as the thoracic pain. Moreover, the evidence of stiffness in the thoracic spine noted by Dr Dalton and the complaints of symptoms in the shoulder girdle/blade region were also supportive of a finding that Mr Victoire injured his thoracic spine when he was forcefully thrown backwards into a (brick) fence on 28 February 2004.
Alleged failure to find that Mr Victoire sustained an injury on the balance of probabilities
This complaint relates to the Arbitrator’s statement (at T30.17) that it was “extremely possible” Mr Victoire injured his thoracic spine on 28 February 2004. The complaint is without substance and involves a significant misreading of the Arbitrator’s reasons.
In addition to the statement complained of, the Arbitrator added, in the same sentence, that it was “probable that [Mr Victoire] suffered some sort of injury to his thoracic spine and I make that finding”. The Arbitrator further added (at T31.4) that it was his view “on the balance of probabilities … my finding is that on 28 February 2004 [Mr Victoire] also suffered an injury to his thoracic spine”. This finding demonstrated an application of the correct standard of proof and disclosed no error.
Alleged failure to determine what the injury was and how it was sustained
It is correct that the Arbitrator did not make a finding of the exact nature of the injury to the thoracic spine. He did not have to and Mr Malouf has advanced no submissions or authority in support of this alleged error. Though it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. Causation can be established though the precise diagnosis not known (Grace v Elmasri [2009] VSCA 111 at [131]–[137]). What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury.
Though the Arbitrator did not make an express finding that Mr Victoire’s employment was a substantial contributing factor to the injury to the thoracic spine, the parties made no submissions on that issue. It appears to have been accepted (both at the arbitration and on appeal) that if the Arbitrator found in favour of Mr Victoire on injury then employment was a substantial contributing factor to that injury.
Noting the circumstances of the incident that the Arbitrator found caused the injury to the thoracic spine, namely, the assault on 28 February 2004 when, in the course of his employment, Mr Victoire was attempting to return a client to the centre, and Dr Patrick’s evidence that employment was a substantial contributing factor to Mr Victoire’s injuries on 28 February 2004, the parties were correct to proceed on that basis.
Based on his assessment of the evidence overall, the Arbitrator was satisfied, on the balance of probabilities, that Mr Victoire injured his thoracic spine in the course of his employment on 28 February 2004. For the reasons explained above, that finding was open and disclosed no error. As the claim is for lump sum compensation, it was not necessary for the Arbitrator to go further and consider the exact nature and extent of the injury. That is because the assessment of the degree of whole person impairment that has resulted from the injury is a matter for an AMS.
The submission that the Arbitrator failed to determine how the injury was sustained is incorrect. As previously explained, he determined that the injury to the thoracic spine was caused by the mechanism of the injury. In this sense, the Arbitrator was clearly referring to the mechanism of the injurious event or incident. An “incident” is only a mechanism and not itself a s 4 injury (Wyong Shire Council v Paterson [2005] NSWCA 74 at [38]).
The mechanism of the incident was that John pushed Mr Victoire “back forcibly into a fence with at least two powerful impacts on two occasions” (T20.34). The Arbitrator added (at T30.9), if there were any doubt, that Mr Victoire was “thrown backwards into the fence”. In other words, the trauma and violence of the incident was sufficient to cause, and did cause, injury to the thoracic spine. That provided a clear and succinct explanation of how Mr Victoire injured his thoracic spine. It accorded with both commonsense and logic and clearly satisfied the commonsense test of causation in workers compensation matters (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796).
CONCLUSION
The Arbitrator’s reasoning and conclusions were based on a logical and proper analysis of the evidence. His conclusions were open to him and disclosed no error.
DECISION
The name of the appellant employer is amended to be Secretary, Department of Family and Community Services.
Leave to appeal is granted.
The Arbitrator’s determination of 25 March 2014 is confirmed.
The matter is remitted to the same Arbitrator for determination of all outstanding issues.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal.
Bill Roche
Deputy President
22 July 2014
I, JACQUELINE HAGGER, 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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