Sheridan v David Anthony Clarke t/as Freestyle Marine Sports
[2003] NSWWCCPD 9
•28 March 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | Ian John Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 9 |
| APPELLANT: | Ian John Sheridan |
| FIRST RESPONDENT: | David Anthony Clarke t/as Freestyle Marine Sports |
| SECOND RESPONDENT: | WorkCover Authority of NSW |
| FILE NO: | WCC 251- 2002 |
| DATE OF DECISION: | 28 March 2003 |
| PRESIDENTIAL MEMBER: | Dr. Gabriel Fleming |
| DECISION UNDER APPEAL: | Application to review decision of Arbitrator on grounds of: failure to base decision on logically probative evidence, inadequate reasons, incorrect application of statutory test of whether work was the ‘substantial contributing factor’ to the injury, and error in exercise of the Arbitrator’s discretion in relation to consideration of the evidence. |
| DATE OF DECISION UNDER APPEAL: | 1 November 2002 |
| HEARING: | 7 March 2003 |
| REPRESENTATION: | Appellant: Mr. Odling of Counsel instructed by Walker Gibbs King Pty Ltd |
| First Respondent: Mr. Stockley of Counsel instructed by Kennedy Cooke Solicitors | |
| ORDERS MADE ON APPEAL: | The Appeal is not allowed. The decision appealed against is confirmed. No order as to costs. |
THE APPEAL
Ian John Sheridan (‘the Applicant’) has appealed against the decision of an Arbitrator of the Workers Compensation Commission (‘the Commission’) refusing his claim for workers compensation made against David Anthony Clarke t/as Freestyle Marine Sports (‘the First Respondent’). The WorkCover Authority of NSW has been identified as the Second Respondent pursuant to the Uninsured Liability and Indemnity Scheme (‘ULIS’).
The Applicant seeks to have the decision of the Arbitrator set aside and the matter reheard by another Arbitrator, or alternatively that compensation be awarded to him in the terms of his claim
Mr. Sheridan’s claim is that he suffered a total incapacity for work as a result of an injury to his right middle finger that arose out of, or in the course of, his employment as a marine mechanic with the First Respondent between April and November 1996. Specifically, his claim under the Workers Compensation Act 1987 (‘the 1987 Act’) is for compensation as follows:
· Permanent impairment, being 15% loss of the use of his right hand pursuant to section 66 of the Act,
· pain and suffering pursuant to section 67 of the Act,
· medical expenses pursuant to section 60 of the Act, and
· continuing weekly payments of compensation from 5 April 1997.
THE DECISION UNDER REVIEW
A Certificate of Determination and attached statement of reasons were issued on 1 November 2002 and set out the decision of the Arbitrator as follows:
i.The Workers Compensation Commission has sole jurisdiction to hear the claim.
ii.The Applicant is not barred from recovering compensation under s61 and s65 of the Workplace Injury Management and Workers Compensation Act 1998.
iii.The Respondent is not liable to pay the Applicant’s claim for weekly compensation at the rate of $500.00 per week from 1/4/1987 to date and continuing in accordance with s36 and s37 of the provisions of the Workers Compensation Act 1987.
iv.The Respondent is not liable to pay the Applicant’s claim under s66 of the provisions of the Workers Compensation Act 1987.
v.The Respondent is not liable for the payment of the Applicant’s claim under s60 of the provisions of the Workers Compensation Act 1987.
vi.In all the circumstances there should be no order as to costs.
The Arbitrator’s ‘FINDINGS AND REASONS’ as they are relevant to this appeal are found in paragraphs 32 and 33 of the statement of reasons as follows:
32. I find that the injury did not arise out of or in the course of employment and that there is no sufficient evidence to show that the employment was a substantial contributing factor to the injury. The infection was of a serious nature and there is no evidence of why such an infection should lay dormant in the body for a period of over six months. Dr. Billett stated in his report that he could not accept that the infection took six months to manifest itself. There is no incident during employment to which the worker can point as a likely cause of the infection. He cited an incident on the 4/10/1996 when he cleaned out a boat which had rotting prawns in the bilge water and on which occasion he pulled fiberglass shards from his fingers. However he gave evidence that he did not suffer any infections from these slivers he pulled from his fingers. He could not recall any puncture wounds to his hand in the six months after leaving work but nor could he remember a puncture wound for which he was treated in August 1998 even after reading his treating doctor’s notes. The Applicant could have suffered a puncture wound and an infection during the course of his employment but there is simply no evidence that he did . There is no frank incident to which he can link his injury. There is no link in time or place to the injury. His lifestyle in the six months after leaving work make the probability that he might sustain a puncture wound quite high. He caught and cleaned fish, used a fiberglass rod, worked at least on his own fiberglass boat and its motor and gardened (though he claimed to wear gloves when gardening).
33. It is apparent that Dr. Nall at first believed the Applicant was still employed when the infection occurred in April 1997. Dr. Nall later outlined a mechanism for the infection to have occurred so long after the work ceased. That is that a slither of fiberglass was driven into the tendon sheath by the force of the mower cord and set up the infection which had been dormant for six months. To accept this theory too many assumptions would have to be made. The chain of causation is too remote. I cannot find that the injury arose out of the employment or that the employment was a substantial contributing factor.
JURISDICTION
Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) provides for ‘Appeal Against Decision of Commission Constituted by Arbitrator’. The Commission, constituted by a Presidential Member, is not to grant leave to a party to appeal against a decision unless the amount of compensation at issue on the appeal is at least $5000 and at least 20% of the amount awarded in the decision appealed against. An appeal must be made within 28 days of the date of the decision appealed against. The Commission may confirm or revoke the original decision and make a new decision in its place (section 352(7)).
Leave to appeal the Arbitrator’s decision was granted on 12 February 2003.
Section 352(5) of the Act provides that ‘fresh’ or ‘additional’ evidence may only be given on appeal with leave of the Commission. While the hearing is not ‘de novo’, in some cases it will be necessary, to ensure fairness in the instant case, to hear further evidence. The circumstances of this case were discussed at length in the statement of reasons for the grant of leave. The appeal was heard on 7 March 2003 and all parties were legally represented. Mr. Sheridan was permitted to give oral evidence on matters that he had previously addressed before the Arbitrator and the Respondents’ legal representatives had the opportunity to cross-examine Mr. Sheridan on this evidence. Representatives for all parties made oral submissions on the appeal.
The precise nature of the appeal against a decision of an Arbitrator is not set out in the Act other than to say that it is to be by way of a ‘review of the decision appealed against’. ‘Review’ pursuant to section 352(5) must be understood in the context of the nature of the powers exercised by Arbitrator’s at first instance (Mayne Health Group v Sandford [2002] NSW WCC PD 6). The Commission has a specific and limited role on appeal. The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by legal, factual or discretionary error (Allesch v Maunz [2000] HCA 40 (3 August 2000)).
Other than in relation to the admission of additional evidence, the conduct of a review of an Arbitrator’s decision is not set out in the Act. In the absence of any express restriction on the conduct of the review it is a matter to be determined by the Presidential member in accordance with the particular demands of each case (See judicial comment in relation to the ‘appeal’ and ‘review’ provisions of the Compensation Court in Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190; Cockatoo Dockyard Pty Ltd v Atamian, 1995 NSW Court of Appeal, Unreported). The Commission has a power to determine matters without holding a conference or formal hearing where it is satisfied that sufficient information has been supplied by the parties (section 352(6)).
THE ISSUES IN DISPUTE
The ‘Amended Application to Appeal’ filed on 13 December 2002 claims that there are a number of alleged errors in the Arbitrator’s decision, which may be summarized as follows;
i.The Arbitrator erred in granting leave to the Respondent to rely on the report of Dr. Billett dated 16 August 2002.
ii.The Arbitrator erred in relying on the report of Dr. Billett.
iii.The Arbitrator failed to base the decision on logically probative evidence in that she:
(a)Substituted her own opinion for the medical opinion of Dr. Nall,
(b)Based her findings on speculation and assumptions not supported by the evidence,
(c)Did not take into account relevant evidence in relation to the cause of the Applicant’s injury, and
(d)Made findings for which there was no evidence.
iv.The Arbitrator erred in incorrectly applying the statutory test of whether the Applicant’s work was a ‘substantial contributing factor’ to his injury.
v.The Arbitrator failed to provide adequate reasons for the decision.
The Second Respondent, the WorkCover Authority of NSW, filed a substantive Reply to the Application and an Amended Reply dated 23 December 2002. The Second Respondent submitted that the decision of the Arbitrator should not be overturned for the following reasons:
i.The Arbitrator did not err in the conduct of the proceedings.
ii.The essential issue in the matter was one of causation and the Arbitrator was not satisfied on the balance of probabilities that the worker had established a causal connection between work activities and the infection from which he undoubtedly suffered, which was the correct decision in the circumstances.
iii.The Applicant to this appeal, which is by way of review, needs to establish some proper basis for disturbing the decision under review, which he has not done.
The First Respondent made oral submissions and relied on the written submissions of the Second Respondent.
EVIDENCE
The evidence before the Arbitrator is set out in the ‘Statement of Reasons for Determination’ (‘the reasons’) dated 1 November 2002 and attached to the ‘Certificate of Determination’ of the same date. In summary, the evidence before me on the appeal is:
For the Applicant
(1) Oral evidence of Mr. Sheridan given on 7 March 2003.
(2) Statement of Mr. Sheridan dated 11 February 2002.
(3) Statement of Mr. Sheridan headed ‘Regarding Allegations of Subsequent Employment’ dated 26 August 2002.
(4) Reports of Dr. Nall, Orthopaedic Surgeon, dated 2 June 1999, 7 July 1999, 23 November 1999, 28 August 1999 and 16 September 2002.
(5) Report of Dr. McKee, Orthopaedic Surgeon, dated 5 August 1997.
(6) Reports of Dr. Seaton (x2), Consultant Orthopaedic Specialist, dated 29 April 1999.
For the WorkCover Authority, Second Respondent
(1) Reports of Dr. Billett (x3), Orthopaedic Surgeon, all dated 16 August 2002.
(2) Clinical Notes of Dr.s Rigby and Robson, treating General Practitioners.
(3) Report of Dr. Hartemink, Surgeon, 6 June 1997.
Mr. Sheridan was employed by Freestyle Marine Sports on 22 April 1996 to do mechanical work and general cleaning and maintenance of outboard marine motors. He sustained a back injury and ceased working in around October or November 1996. He has not been in paid employment since that time. Freestyle Marine then ceased trading in December 1996.
The nature of Mr. Sheridan’s work at Freestyle Marine and his other activities during this period are relevant to his claim. He gave evidence of these, and other relevant matters at the appeal hearing. Mr. Sheridan stated that when working at Freestyle Marine he worked with a lot of fiberglass shards that were exposed when the ‘gel coating’ on the fiberglass parts of the boats had deteriorated from weather and age. His hands would get ‘full’ of fibreglass slivers every time he touched the exposed fiberglass. Generally he could see the slivers and remove them. If there were any remaining in his hand they were usually difficult to see. He said that if a fiberglass sliver gets under the skin it becomes irritable fairly quickly and is itchy:
It’s irritating,. . . .if it keeps on it’s just the same as if you’ve got a normal thistle or a wooden splinter in your hand and it irritates and you try to get it out.
While he was working for Freestyle Marine he did not ever have any infection in his hands from a fiberglass shard.
Mr. Sheridan described an incident at his work in October 1996 as follows:
. . . there was always a lot of fiberglass shards about. I worked with bare hands. I remember in particular on one occasion I had to remove a low profile fuel tank from under the deck of a boat. The boat was fiberglass. Water was in the carburettors and fuel tank, so I had to remove and drain the whole fuel system
Mr. Sheridan said that at the time of this incident he removed what fiberglass slivers he could see in his hand by pulling them out. He had his hands in dirty water with ‘stinking bait and rotten fish and everything that was underneath’ the tank. He continued working for a couple of months after this incident.
After leaving work in November 1996 Mr. Sheridan did housework and ‘a bit of gardening’. He generally wore leather gloves for gardening, but not at the time of injuring his hand. Before and after working for Freestyle Marine Mr. Sheridan regularly attended to the repairs of his own boat, which also had exposed fiberglass. He said that he did not suffer any injury to his hand during this period.
In April 1997 he began to have problems with the fingers on his right hand. He attributes the start of the problems to an incident starting a lawn mower when ‘the rope threw back and hit’ his hand with some force. He immediately felt a tingling sensation in the two middle fingers of his right hand and two hours later the hand turned a ‘reddy colour and then it turned purple’. He went to see his general practitioner, Dr. Rigby, however he was away so Mr. Sheridan saw Dr. Robson whose preliminary diagnosis was that the pain in the fingers was gout. Mr. Sheridan subsequently had an x-ray that disclosed that the problem was not gout.
In answer to questions from the Respondent’s legal representative Mr. Sheridan agreed that he did not tell Dr. Robson or Dr. Rigby he had hurt his hand while using the mower. Their clinical notes, which are in evidence, have no record of Mr. Sheridan telling either of the doctors of this incident nor of the incident cleaning out the motor at work.
In June 1997 with continued pain in his right hand, Mr. Sheridan was referred to Dr. Hartemink, Surgeon, who diagnosed ‘suppurative teno-synovitis’ and operated on Mr. Sheridan’s hand, draining liquid from the middle fingers. Mr. Sheridan was sent home on antibiotics however he returned to Bega hospital and his condition was diagnosed by Dr. Nall as ‘flexor tendon sheath infection’. In late June 1997 Dr. Hartemink operated again. Mr. Sheridan continued to experience pain and swelling in the fingers and Dr.s Nall and Hartemink, together, operated on his hand again on 9 July 1997. Prior to this operation all tests for ‘staphylococcus’ infection had proved negative however this infection was found on 9 July. Mr. Sheridan was subsequently treated with antibiotics by his general practitioner, Dr. Robson. Dr. Nall’s diagnosis was that Mr. Sheridan suffered from a ‘severe flexor tendon sheath infection affecting the right middle finger’.
Mr. Sheridan said that he continues to have restricted movement in his right hand and episodic bouts of pain and swelling. He cannot hold small objects, often drops things and cannot work as a marine mechanic.
On the critical issue of diagnosis and causation of Mr. Sheridan’s hand injury the medical opinion is divided. It may be summarized as follows;
Dr. Hartemink who operated on Mr. Sheridan in 1997 reported in June 1997 that he ‘thought that he probably had suppurative teno-synovitis’. This is a very early report in terms of the progression of Mr. Sheridan’s condition. This report precedes Mr. Sheridan’s referral by Dr. Hartemink to Dr. Nall on 17 June 1997.
Dr. Nall was Mr. Sheridan’s treating Orthopaedic Surgeon and has provided reports dated 22 June 1999, 7 July 1999, 23 November 1999 and 28 August 2000 and 16 September 2002. In his opinion Mr. Sheridan had ‘an extremely severe flexor tendon sheath infection affecting the right middle finger’ (July 1999). As to the cause of this injury Dr. Nall reported that he had assumed from the history given to him by Mr. Sheridan that the injury had occurred ’during the course of his work as a marine mechanic . . . at no time did he [Mr. Sheridan] give me a history of injuring his finger starting a lawn mower’ (August 2000). However, accepting Mr. Sheridan’s account of both the incidents at work and later with the lawn mower, Dr. Nall was of the view that it was quite probable that the combination of these two events ‘initiated’ the tendon sheath infection. He stated that there was no doubt fiberglass material can work its way into the skin and not cause any problems.. . . on the balance of probabilities, . . . in the absence of any other specific penetrating injury the most reasonable explanation for the onset of the acute tenosynovitis of his finger was due to residual imbedded fiberglass, which was asymptomatic, being driven into the tendon sheath (July 1999).
Dr. McKee, saw Mr. Sheridan on 29 July 1997 ‘for examination and assessment of his back and bilateral lower limb post traumatic disability’. This report notes the bandaging of Mr. Sheridan’s right hand and a short history but adds nothing in relation to this injury.
Dr. Seaton’s report, dated 29 April 1999, is also mainly concerned with Mr. Sheridan’s back injury. This report refers to an injury to the right hand which, Doctor Seaton states, Mr. Sheridan thought he sustained at the same time he fell and hurt his back in October 1996. Dr. Seaton was of the view that he has a 20% permanent loss of efficient use in his right hand and was unfit for any manual work or for retraining.
Dr. Billett, Consultant Orthopaedic Surgeon, saw Mr. Sheridan on 13 August 2002 and reported to WorkCover on 16 August 2002. Dr. Billett was apprised of all former medical reports on Mr. Sheridan. However in reciting the history given to him by Mr. Sheridan, Dr. Billett makes no mention of an incident involving a lawn mower affecting Mr. Sheridan’s hand. Dr. Billett concluded that ‘If he sustained an infection from fiberglass fibres in October 1996, I would not expect the infection to present six months later. Thus I could not correlate his employment with the onset of the infection in the tendon sheath’. Dr. Billett assessed Mr. Sheridan’s loss of use of his right hand at approximately 20%.
DISCUSSION AND REASONS
The parties made a number of written and oral submissions addressing the points of appeal, which are considered and discussed below.
Admission of the Report of Dr. Billett
The Applicant claims firstly that the Arbitrator erred in granting leave to the Respondent to rely on the report of Dr. Billett dated 16 August 2002. This claim is essentially that the Applicant was denied procedural fairness having received notice of this report on 16 October 2002 for a hearing on 21 October 2002. He submitted he did not have the opportunity to properly respond to the issues raised in Dr. Billet’s report. The Second Respondent claims the report of Dr. Billett did not raise new issues and did not prejudice the Applicant who, in any event, did not seek an adjournment of the proceedings before the Arbitrator in order to obtain further evidence.
The practices and procedures of the Commission are centered around the early and timely filing of documents and exchange of information. The Interim Workers Compensation Commission Rules 2001 (‘the Rules’) and the ‘Registrar’s Guideline for the Conduct of Proceedings’ reinforce this principle. Where in the special circumstances of the case, an injustice will result to a party who is not permitted to introduce late evidence, then the Arbitrator retains the discretion to allow a party to introduce that evidence (Rule 29(3)). As with any exercise of discretion by an administrative decision-maker this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion, and the objects or purpose for which it is conferred (Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd (1979) 144 CLR 45 at 49).
In this matter the Arbitrator held a telephone conference with the parties on 12 August 2002. At that conference the legal representative of the WorkCover Authority advised that no claim had been made on the Uninsured Liability and Indemnity Scheme (‘ULIS’) as required by section 65 of the Workers Compensation Act 1987. As a result it had not been possible for the representatives of ULIS to obtain medical reports relevant to the claim. A direction was given that WorkCover file medical reports as soon as available. The report of Dr. Billett was then filed on 16 August 2002.
In my view the Arbitrator properly exercised her discretion to allow the report of Dr. Billett to be filed. There was no significant delay in filing the report of Dr. Billett. It would have been prejudicial to the WorkCover Authority had it been forced to defend the claim without the benefit of an independent medical opinion. At the same time the report itself does not raise new issues. The clear point of conflict in this matter is the question of what caused the Applicant’s injury and this was addressed by both Dr.s Billett and Nall. The Applicant had the report several days before the hearing. The point is well made that the Applicant did not seek an adjournment of the proceedings.
Reliance upon the Report of Dr. Billett
A number of the Applicant’s submissions on the appeal concern the claim that the Arbitrator erred in relying on the report of Dr. Billett, after giving leave to allow the report to be filed. The Applicant submits that the report of Dr. Billett is flawed in that it is based on an incorrect factual history of the injury. He contends that Dr. Billett’s report is not logical or probative and is based on unsubstantiated and incorrect assumptions. The Respondent points to the fact that Mr. Sheridan himself gave an account of the history of the injury to Dr. Billett, that he was appraised of all earlier medical reports that documented Mr. Sheridan’s account of the injury and that Dr. Billett was not obliged to deal specifically with other medical opinions.
When informing him or herself on any matter, an Arbitrator is required by the Workers Compensation Commission Interim Rules 2001 (Rule 38) to bear in mind the following principles:
(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.
The Arbitrator clearly found that the injury to Mr. Sheridan’s right hand did not arise out of the course of his employment. The Arbitrator correctly identified that the question of whether the injury ‘arose out of or in the course of employment’ as required by section 4 of the Workers Compensation Act 1987, was to be determined by whether there was an unbroken chain of causation between the employment and the injury. In coming to her conclusion the Arbitrator preferred the medical evidence of Dr. Billett to that of Dr. Nall. She discounted the opinion of Dr. Nall as to the cause of the injury stating that ‘to accept this theory too many assumptions would have to be made. The chain of causation is too remote’.
Prior to considering the medical evidence it was incumbent upon the Arbitrator to satisfy herself as to a number of questions of fact relevant to the cause of the injury (Vescio v Top Form Concrete (1995) 13 NSW CCR 255). The history of events giving rise to the injury given to the doctors by the Applicant will obviously influence their medical opinion. Similarly the findings of the Arbitrator in relation to the factual history will influence her decision as to the weight she gives to that medical opinion. Where a medical report is based on an incorrect history or facts not accepted by the Arbitrator then clearly it will be of less weight than a report that is based on what has been accepted as the ‘correct’ history (Kinkella v Malleys Ltd (1988) 4 NSWCCR 239).
The issue of whether the Arbitrator erred in preferring the evidence of Dr. Billett must in part, be dependent upon the Arbitrator’s findings of fact. If, for instance she did not accept Mr. Sheridan’s evidence about the two incidents, the boat and the mower, then logically she would prefer the medical evidence which is consistent with this finding. If however, the Arbitrator accepts that these two incidents occurred and that Mr. Sheridan did not otherwise sustain a puncture wound on his hand that could have caused the infection then the opinion of Dr. Nall may carry more weight. It is not clear from the reasons whether the Arbitrator found Mr. Sheridan to be a truthful witness and believed his account of the incident cleaning out the boat at work when he claims to have come into contact with fibreglass shards, and the subsequent incident with the lawnmower. The reasons do not clearly set out the Arbitrator’s findings on the facts.
The Applicant bears the onus of proving the causal connection between the injury and the employment (Sydney County Council v Furner (1991) 7 NSWCCR 210). He must prove on the balance of probabilites, that the injury ‘arose out of or in the course of employment’ (section 4, Workers Compensation Act 1997; Archer v Richard Crookes Constructions Pty Ltd (1997) 15 CCR ). The mere fact that a particular cause of the injury cannot be excluded does not establish that it is in fact the cause (Sydney County Council v Furner (1991) 7 NSWCCR 210). Put another way, the Arbitrator must be satisfied on the balance of probabilities, that the tendon sheath infection suffered by Mr. Sheridan was caused by his employment. If the Arbitrator is uncertain about this after hearing the evidence then the Applicant has not discharged this onus. In this matter the Respondent sought to refute the Applicant’s evidence of the injury, not primarily in attacking his credit but in postulating alternative causes for the injury to Mr. Sheridan’s hand, a gardening injury for example, or an injury when working with fibreglass on his own boat. If however, the Arbitrator is not satisfied that the tendon sheath infection suffered by Mr. Sheridan was caused by the incident on the boat working with fibreglass, then it is not necessary to determine whether there were alternative causes for the injury. It is only where this prima facie onus is established that the onus shifts to the Respondent to prove altenative causes of the injury on the same standard, the balance of probabilities (Archer v Richard Crookes Constructions Pty Ltd (1997) 15 CCR).
The Arbitrator appears to have based her findings on conclusions of Dr. Billett as to the possible cause of the injury. The Arbitrator states at the start of her reasons (in paragraph 32 ) that ‘there is no evidence of why such an infection should lay dormant in the body for a period of six months’. This was a matter properly the subject of medical evidence, upon which Dr.s Billett and Nall expressed a view. Dr. Billett expressed ‘grave reservations’ as to whether the injury was linked to the later infection. In contrast Dr. Nall opined that the infection was ‘asymptomatic’ until the triggering factor of the fibreglass sliver being driven into the tendon sheath six months later. The Arbitrator discounted Dr. Nall’s report on the basis that ‘to accept this theory too many assumptions would have to be made’.
It was clearly for the Arbitrator in this matter to determine the persuasiveness or otherwise of the medical evidence before her. However, she was also obliged to come to findings on the material questions of fact necessary to properly consider the probative value and relative weight of that medical evidence (Ramsay v Watson (1961) 108 CLR 642). The High Court in Paric v John Holland Constructions [1984] 2 NSWLR 505 said:
It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v.Watson (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based.
In my view the Arbitrator erred in two respects. Firstly she failed to satisfy herself as to whether, on the balance of probabilities, or to give adequate reasons for satisfying herself, of the material facts proving that the incident that is alleged to give rise to the injury occurred at work (Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697). Secondly and related, the Arbitrator erred in preferring the opinion of Dr. Billett over Dr. Nall without first coming to a view as to whether the Applicant had proven on the balance of probablitiies, the existence of the material facts upon which that report was based. This is an error of law. In State of New South Wales t/as New South Wales Department of Agriculture v Allen [2000] NSWCA 141 Justice Powell said that:
In a case in which the opinion of an expert witness has been tendered, the question whether the history upon which that opinion has been based has, or the hypothetical facts which the witness has been asked to assume for the purpose of giving his opinion have, been sufficiently established will raise a question of law although, if that question be answered in the affirmative, the weight to be given to the opinion is but a question of fact (Paric v. John Holland Constructions Pty. Limited [1984] 2 NSWLR 505, 509-510 per Samuels JA).
Logically Probative Evidence
The Applicant submits that the Arbitrator failed to base the decision on logically probative evidence in that she substituted her own opinion for the medical opinion of Dr. Nall. I have dealt with this ground in part above. I do not accept that the Arbitrator substituted her own opinion for the medical evidence. It is clear from the reasons that the Arbitrator considered the medical reports of Drs Billett and Nall to be persuasive however on balance, she preferred the report of Dr. Billett. It appears from the reasons that the Arbitrator based her findings on the report of Dr. Billett. Whether or not that evidence is ‘logically probative’ depends, as stated above, on the Arbitrator’s findings on the material questions of fact.
It was submitted that the Arbitrator did not take into account relevant evidence in relation to the cause of the Applicant’s injury, and made findings for which there was no evidence. The Applicant’s written statement in the proceedings and his oral evidence before me was that:
· There was an ‘incident’ when he was at work cleaning out a boat where he came into contact with fibreglass and had to remove many fibreglass slivers from his hand.
· There was a later incident with a lawn mower where pressure was applied to his fingers and they became swollen and painful.
· He had no symptoms of injury to his hand until the lawn mower incident.
In contrast to the Applicant’s oral evidence the Arbitrator states that ‘there is no incident during employment to which the worker can point as a likely cause of infection’. However she then sets out his account of the incident on the boat. She states futher ‘there is no frank incident to which he can link his injury’ and ‘there is no link in time or place to the injury’ making no reference back to Mr. Sheridan’s evidence of the incidents of the boat or the mower.
It is difficult to know what to make of these findings as they appear to be in direct conflict with the evidence of Mr. Sheridan, which was before the Arbitrator and which was challenged, but not contradicted by the Respondents. It is not evident from the statement of reasons whether the Arbitrator arrived at these findings by reason of rejecting Mr. Sheridan as a witness of truth or because of the weight of other evidence, or both. The Respondent submitted that Mr. Sheridan’s failure to mention these incidents to his treating doctors at the time they allegedly occurred undermines his version of events. The Arbitrator does not refer to this in the reasons.
On balance, I am of the view that the reasons demonstrate that the Arbitrator viewed Mr. Sheridan’s evidence as logical and probative and took it into account in making her decision. However, as stated above, her findings in relation to this evidence are not adequate.
Incorrect Application of the Statutory Test
The Applicant claims that the Arbitrator erred in incorrectly applying the statutory test of whether the Applicant’s work was a ‘substantial contributing factor’ to his injury. The Arbitrator has correctly identified, at paragraph 5 of the reasons, whether the injury ‘arises out of or in the course of employment’ and whether Mr. Sheridan’s employment was a ‘substantial contributing factor’ to his injury, as two separate issues. However in her reasoning at paragraphs 32 and 33 these two issues appear to have been merged. If the Arbitrator considered these issues distinctly this is not apparent from the reasons for decision. The matters that must be taken into account pursuant to section 9A of the Workers Compensation Act 1987, were not set out or considered. Ultimately this was not necessary as the Arbitrator’s finding that the injury did not arise out of or in the course of employment (section 4 of the Workers Compensation Act 1987) made the other issue irrelevant.
Inadequate Reasons
The Applicant claims the Arbitrator failed to provide adequate reasons for the decision. This has also been partly dealt with above. It is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). To the extent that the review or the decision is founded on demonstrable error, as discussed above, it will be sufficient if the relevant findings and reasons are demonstrated by reading the decision as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444). At the same time the decision under review must be taken on its face, with reasoning not attributed to the decision-maker where they are not apparent (Burns v Lovett Building Co Pty Ltd (1995) 12 NSWCCR 332 at 336). The standard by which the adequacy of reasons may be determined is relative to the nature and context of the decision being made.
The Interim Workers Compensation Commission Rules 2001 require an Arbitrator to give a brief statement setting out the reasons for the determination (Section 294 of the Act; Rule 41) including:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning process that lead the Commission to the conclusions it made.
The Arbitrator, in paragraphs 32 and 33 of her reasons sets out the matters that influenced her decision. However for reasons discussed I am not satisfied that the Arbitrator has fulfilled her general legal obligations to provide an adequate statement or reasons for decision (as to the content of an adequate statement of reasons see Beale v GIO (NSW) (1997) 48 NSWLR 430 and Soulemezis v Dudley Holdings (1987) 10 NSWLR 247). Nor has she met the requirements of Rule 41. This is not to suggest that a statement of reasons given by an Arbitrator of the Commission need be overly legalistic, lengthy or detailed. However at the same time it is necessary to meet minimum standards in stating reasons for decision, such as those set out in Rule 41. It is significant that most cases in the Commission are not finalised by way of a ‘statement of reasons’ by the Arbitrator, but by way of an agreed settlement after active conciliation by the Arbitrator. Those cases that do not settle therefore are likely to be the most complex or contentious, where the parties hold completely divergent views as to the fair, just and lawful outcome. The purpose of the statement of reasons is to articulate the legal and factual basis for the decision in clear and unambiguous terms.
Having considered the matters set out above it is my view that in this case the statement of reasons is inadequate. It does not clearly convey the Arbitrator’s findings on material questions of fact, for instance whether or not she accepts Mr. Sheridan’s evidence about the incident at work and the incident with the lawn mower. The evidence on which the Arbitrator based her findings in relation to the acceptance of medical evidence is not clear nor is the reasoning process in relation to consideration of the statutory issues of ‘causation’ and finally, whether employment was a ‘substantial contributing factor’ to Mr. Sheridan’s injury (although this issue was not relevant, ultimately).
REVIEW FINDINGS
I have considered all the evidence before the Arbitrator as set out above and the further evidence and submissions before me on this appeal.
I am not satisfied, on the balance of probabilities, that Mr. Sheridan’s injury arose ‘out of or in the course of employment’ as required by section 4 of the Workers Compensation Act 1987, for the following reasons;
i.It is common ground that Mr. Sheridan suffered an acute tendon sheath infection to his right hand in around April 1997, for which he has had ongoing medical treatment.
ii.I accept that Mr. Sheridan was a truthful witness and that he recounted events to the best of his ability. Mr. Sheridan’s evidence is that he worked with fibreglass as a marine mechanic for Freestyle Marine from April 1996 to around October/November 1996 and that when doing this work, fibreglass slivers would cover his hands and sometimes penetrate the skin. Mr. Sheridan was equivocal as to whether, on the occasion he was cleaning out the boat in October 1996, he was able to remove all the fibreglass slivers from his hand. His evidence was that it was usual that if the slivers remained embedded there would be immediate irritation, similar to a wood splinter remaining under the skin. This did not happen on that occasion and his evidence was that there were no symptoms of irritation following this incident. There were no symptoms at all until the second incident with the mower in April 1997, approximately six months after he had ceased employment with Freestyle Marine. At the time of the mower incident he was not wearing gloves although he said that this was his usual practice when gardening. I accept that his hand became painful and swollen after he hit it while using the mower in April 1997.
iii.Mr. Sheridan said that his work generally involved fibreglass but could not point to any other incident at work where he recalled a penetrating injury of any significance from fibreglass slivers. I accept his evidence that he has not been in other paid employment since he left Freestyle Marine.
iv.In April 1997, when his injury became apparent, Mr. Sheridan did not tell his general practitioner of any incident at work involving fibreglass slivers penetrating his hand. Mr. Sheridan’s oral evidence was that he did not recall any other penetration injury to his hand when doing work on his own boat, gardening, fishing or other activities. However I found his recollection of any other injury at that time to be less than certain, for instance he did not recall when or how he injured his forearm.
v.This is not a case where medical investigations (for example, symptoms or clinical tests) can definitively link Mr. Sheridan’s injury with the incident on the boat in 1996. No fibreglass slivers were in fact found in Mr. Sheridan’s hand when it was operated upon. There are two competing medical reports before me in relation to the possible cause of Mr. Sheridan’s injury, Dr. Billett’s and Dr. Nall’s. Dr. Billett concluded that the tendon sheath infection to Mr. Sheridan’s hand was not linked to the incident when cleaning out the boat in October 1996.
vi.Dr. Nall is the treating Orthopaedic Surgeon and his opinion is persuasive. He saw Mr. Sheridan when the injury was acute, monitored and treated him for some time after. His conclusion was that it was probable Mr. Sheridan’s work with fibreglass was the cause of his injury. Dr. Nall based his report (July 1999), in part, on the erronious assumption that Mr. Sheridan had ‘no exposure to fibreglass prior to his employment with Freestyle Marine’. This is contrary to Mr. Sheridan’s evidence to the Commission, that he maintained his own boat, which exposed him to fibreglass for many years before his employment and also after he ceased employment.
vii.I accept Dr. Nall’s opinion that it is ‘reasonable to assume’ and ‘probable’ that the cause of Mr. Sheridan’s injury was an incident involving fibreglass penetrating his hand. However Dr. Nall’s opinion that Mr. Sheridan’s injury arose out of or in the course of his employment, is based on the assumption that Mr. Sheridan did, in fact, suffer such a fibreglass penetrating injury at work in 1996 and that fibreglass slivers remained embedded in his hand for six months (report of June 1999). I am not satisfied that there is probative evidence to support a finding, on the balance of probabilities, that this occurred. The facts necessary to support the ‘chain of causation’ claimed by Mr. Sheridan are thus not proven by the evidence. Justice Dixon said relevantly in Jones v Dunkell (1959) 101 CLR 298 at 305 that;
The law . . . does no authorise a court to choose between guesses where the possibilitites are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may be reasonably satisfied.
DECISION
The Appeal is not allowed. The decision appealed against is confirmed.
COSTS
No application has been made in relation to costs and no order is made. The Appellant has been wholly unsuccessful in the appeal. Section 345 of the Act provides for costs in relation to an appeal to a Presidential Member.
Dr. Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr. Gabriel Fleming, Workers Compensation Commission
Registrar Date:
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