Smith v OneSteel Ltd
[2009] NSWWCCPD 4
•15 January 2009
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smith v OneSteel Ltd [2009] NSWWCCPD 4
APPELLANT: OneSteel Ltd
RESPONDENT: Matthew James Smith
INSURER:Self-insurer
FILE NUMBER: A1-5029/08
DATE OF ARBITRATOR’S DECISION: 23 September 2008
DATE OF APPEAL DECISION: 15 January 2009
SUBJECT MATTER OF DECISION: Adequacy of reasons; treatment of the evidence; causation; whether a non-work-related incident resulted from a work-related injury.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Armstrongs Solicitors Pty Ltd
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 23 September 2008 is revoked and the matter is remitted to another arbitrator for determination afresh in accordance with these reasons.
There is no order as to the costs of this appeal.
BACKGROUND
On 20 October 2008, OneSteel Ltd (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 23 September 2008. Solicitors for the Respondent to the appeal, Matthew Smith, filed submissions opposing the appeal on 19 November 2008. OneSteel Ltd is a workers compensation self-insurer.
Mr Smith, who is aged 27, was employed by OneSteel Ltd as a Plant Labourer, commencing in 2001. On 16 May 2005, he was injured when shovelling loose waste from a scale box pit in the course of his employment. Mr Smith also claims to have injured his back and right leg as a result of the nature and conditions of his employment between 16 May 2005 and 15 March 2008, namely constant and repetitive bending, lifting, twisting and shovelling.
Mr Smith lodged a workers compensation claim in respect of the first injury on 18 May 2005, which was accepted by his employer. He was treated for this injury by Dr Matthew McDonald, general practitioner, the “works doctor”, who diagnosed “a strain of both sacroiliac joint ligaments” and said Mr Smith was “fit to return to work on suitable duties (avoid repeated bending or heavy lifting)” (report dated 18 May 2005). Consequently, Mr Smith was employed on light clerical work for about three months before returning to normal duties, although not exactly the same as those duties in which he had been employed prior to the injury.
Mr Smith claims that on Saturday 15 March 2008, he developed severe back pain while sitting watching a football match. The following Monday, he sought medical treatment from his general practitioner, Dr Paul Martin, who certified him unfit for work. Mr Smith has not worked since. On 10 April 2008, Mr Smith completed a report for his employer in respect of this incident and, on 22 April 2008, he completed a workers compensation claim. On 16 May 2008, OneSteel Ltd denied liability.
On 3 July 2008, the Commission registered Mr Smith’s ‘Application to Resolve a Dispute’ in respect of his claim under the Workers Compensation Act 1987 (‘the 1987 Act’) for weekly compensation of $1,100 per week from 15 March 2008 to date and continuing and for medical expenses. On 23 July 2008, OneSteel Ltd filed its ‘Reply’. On 7 August 2008, the Arbitrator conducted a teleconference with the parties. On 29 August 2008, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, at the conclusion of which she reserved her decision. Reasons for her decision were published on 23 September 2008 with the Certificate of Determination.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 September 2008, records the Arbitrator’s orders as follows:
“1. The Respondent is to pay the Applicant weekly benefits compensation at the rate of $616.60 per week from 15 March 2008 and continuing pursuant to section 36 of the 1987 Act.
2. The Respondent is to pay the Applicant’s reasonably necessary section 60 expenses resulting from the injuries to his lumbar spine and right leg on 16 May 2005 and 15 March 2008.
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for her decision, the Arbitrator made the following findings:
“1. On 15 March 2008 the Applicant suffered injury within the meaning of section 4 of the 1987 Act to his lumbar spine and right leg as a result of the nature and conditions of his work with the Respondent from 16 May 2005 to 15 March 2008.
2. The Applicant’s employment with the Respondent was a substantial contributing factor to that injury as required by section 9A of the 1987 Act.
3. As a result of that injury the Applicant has been totally incapacitated for work from 15 March 2008 to date and continuing.”
ISSUES IN DISPUTE
The Appellant contends that the Arbitrator erred in her analysis and interpretation of the evidence, in finding that the injury suffered by Mr Smith on 15 March 2008 arose out of his employment by OneSteel, and in failing to give adequate reasons for so finding. The Appellant contends that the Arbitrator’s findings were not supported by logically probative evidence and were against the weight of evidence. The parties’ submissions are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence. In their submissions, Mr Smith’s solicitors sought to tender additional evidence, namely the records of the Wellness Centre from 16 April 2006 which formed part of OneSteel’s ‘Reply’ filed on 23 July 2008 in the original proceedings. However, it is clear that the Reply and attached documents were admitted into evidence by the Arbitrator (see paragraph 6 of her Statement of Reasons), and it is therefore unnecessary to seek leave to tender these records as additional evidence in the appeal proceedings.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and at least 20% of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
APPELLANT’S SUBMISSIONS
As stated above, the Appellant contends that the Arbitrator erred in her analysis and interpretation of the evidence and in making findings that were not supported by logically probative evidence and were against the weight of evidence. The Appellant submits that the Arbitrator erred in finding that there was any injury to Mr Smith’s right leg or knee resulting from the incident in May 2005. It contends there was no evidence to support Mr Smith’s claim that he had radiating pain down his right leg prior to the incident on 15 March 2008. The inference that should be drawn from the records of the Wellness Centre is that the problems Mr Smith was experiencing with his knee, for which he was receiving treatment, were completely unrelated to any employment injury.
The Appellant also contends that there was no evidence to support a finding that the nature and conditions of Mr Smith’s employment led to the incident on 15 March 2008 when he suffered back pain. The evidence supports a finding that Mr Smith suffered a strain injury to his sacroiliac joint or a lower back strain as a result of the incident in May 2005 (see the contemporaneous reports of Dr McDonald), and there is no evidence to support a finding that this incident caused injury to his lumbar discs or rendered him susceptible to further injury. The records indicate that Mr Smith only had a limited course of treatment after the May 2005 incident and that he did not have any ongoing treatment for his back after 29 May 2006.
The Appellant submits the Arbitrator should have found that Mr Smith suffered a discrete injury on 15 March 2008 which was unrelated to his employment. A finding that the nature and conditions of Mr Smith’s employment caused a disc to be weakened (which subsequently ruptured on 15 March 2008) is one that must be founded on the evidence of an appropriately qualified expert, namely in this case a medical expert (see the discussion in Design Metal Group Pty Ltd v Glen Wallis [2006] NSWWCCPD 105, at paragraphs 34 to 40). There was no such evidence. The evidence of Michael Bowen (Operations Superintendent for the Steel Mill where Mr Smith worked) was that after Mr Smith was certified fit for normal duties in August 2005, the bulk of the jobs Mr Smith would have undertaken would not have required constant and repetitive bending or twisting.
The Appellant submits that the Arbitrator failed to exercise her discretion as to the weight of evidence to be accorded to the evidence fairly and lawfully. She purported to determine the principal issue on the basis of inferences drawn from the medical evidence adduced by Mr Smith’s solicitors, according little weight to the factual circumstances, to the Appellant’s evidence, or to the absence of evidence one would expect to be adduced in support of Mr Smith’s case.
RESPONDENT’S SUBMISSIONS
Mr Smith’s solicitors note the Arbitrator acknowledged that the medical evidence in support of the nature and conditions claim was not extensive (paragraph 42 of her Statement of Reasons). Nevertheless, there was sufficient evidence to support her findings that Mr Smith had not fully recovered from his injury of May 2005, and that from August 2005 until March 2008, he was engaged in “relatively heavy work” (paragraph 43).
Mr Smith’s solicitors note that although, on 15 August 2005, Dr McDonald certified that Mr Smith could return to his usual duties, he encouraged Mr Smith to continue with the back care program and to “work within his limitations”. The physiotherapist who treated Mr Smith at this time took a similar approach.
Mr Smith’s solicitors recognise that the Appellant’s roster records indicate that between 15 August 2005 and 15 March 2008, Mr Smith was employed in a variety of work and not just cleaning out the scale box pit. However, the Arbitrator accepted Mr Smith’s evidence that he was still doing a lot of shovelling, bending, squatting and lifting, and that at the end of every shift he had increased back pain. With regard to Mr Bowen’s evidence, Mr Smith’s solicitors note that in Mr Bowen’s statement dated 23 July 2008, he said he had only been in his current role of Operations Superintendent for the past 12 months. He could, therefore, have no direct knowledge of Mr Smith’s duties from August 2005 to July 2007.
Mr Smith’s solicitors concede that the chiropractic treatment Mr Smith received from the Wellness Centre was for “sore knees/fluid on Right”. However, there was a note about pain being located from the waist down and the Chiropractor, Dr Dunn, ordered x-rays of the cervical, thoracic and lumbar spine and pelvis. Mr Smith’s solicitors suggest this may have been because of a complaint from Mr Smith. There is also a record of Mr Smith undergoing remedial massage on his back between 4 June 2005 and 29 July 2006, and of entries by Dr Martin in his clinical notes between 18 November 2005 and 13 August 2007 concerning Mr Smith’s complaints of a sore back. Mr Smith’s solicitors submit there is evidence of a clear pattern of treatment over this period.
Mr Smith’s solicitors reject the Appellant’s contention that the Arbitrator erred in her analysis and interpretation of the evidence. They submit that given the evidence of Dr Richard Ferch, Neurosurgeon, and Dr Marc Russo, Specialist in Pain Management, the Arbitrator was correct in rejecting the views of Dr John Graham, Occupational Physician, for the reasons set out in paragraphs 35 and 36 of her Statement of Reasons. Mr Smith’s solicitors contend that the Arbitrator did not err in fact or law or in the exercise of her discretion as to the weight to be accorded to the medical evidence. She properly exercised her functions and the suggestion that she did not provide sufficient reasons for her decision should be rejected.
DISCUSSION AND FINDINGS
Pursuant to section 352(5) of the 1998 Act, the role of a Presidential Member on appeal is to conduct a review of the decision appealed against. At issue is whether the Arbitrator erred in her analysis and treatment of the evidence and whether her findings were supported by logically probative evidence.
I have reviewed the evidence before the Arbitrator and her Statement of Reasons. Her Statement of Reasons includes an extensive analysis of the relevant evidence. I have considered the Arbitrator’s discussion of the report of Dr John Graham, Occupational Physician, dated 15 May 2008, prepared for the Appellant, and the comments she makes about that evidence, which appear well-founded. I note that Dr Graham expressed some scepticism of the account given to him by Mr Smith. However, Dr Graham states, in relation to his opinion, that “[i]f evidence is supplied to support Mr Smith’s account, and particularly of ongoing treatment of his back commencing from late 2005 (rather than some later date), this opinion may require revision”.
Dr Graham did not have the benefit of reviewing Mr Smith’s statement of 19 June 2008, the report of his general practitioner, Dr Paul Martin, dated 16 June 2008, and Dr Martin’s clinical notes, or the records of Mr Smith’s health fund. Following the May 2005 injury, Mr Smith was initially treated by the works doctor, Dr McDonald. When Mr Smith experienced back pain after returning to his ‘usual duties’, he consulted his usual general practitioner, Dr Martin, whom, according to Dr Martin’s clinical notes, he had been seeing since at least July 2004.
Dr Martin’s clinical notes attest to Mr Smith having discussed ongoing back problems with him in the period between Mr Smith returning to his usual duties, after 15 August 2005, and before the incident on 15 March 2008. The following notes are relevant:
• on 18 November 2005, Dr Martin records “Hurt back at work – shovelling – off 1/52 then light duties”
• on 14 November 2006, he records “Says lower back always sore since shovelling incident”
• on 13 August 2007, he records “Back still sore from work”, and
• on 29 October 2007, he records “Did Dog Watch Night shift last week ... back is sore again”.
Mr Smith’s health fund records show that he received remedial massage on 15 occasions between 29 April 2006 and 28 August 2006, for which the health fund paid. (Dr Graham thought Mr Smith’s claim to have seen a masseur frequently to be “unlikely”.)
In his statement dated 19 June 2008, Mr Smith says that when he returned to his usual duties in August 2005, although he was not cleaning out the scale box pit:
“I was still doing a lot of shovelling shavings and other waste material, bending, squatting and lifting during these shifts. At the end of every shift my back pain was increased and I was still getting the pain down my right leg.”
Mr Smith went on to say:
“My back and leg pain has never left me since May 2005, it just gets worse depending upon what I do. Throughout 2006 I continued getting a remedial massage on my back when the pain became too intense. I claimed these expenses through my private health insurance as again I did not want to put it through work as I want to keep my job and I thought if I kept on claiming expenses I might get the sack.”
Mr Smith was not called to give evidence or for cross-examination at the arbitration hearing.
I note that in a statement dated 14 April 2008, Donna-Marie Cullen, OneSteel Ltd’s ‘Return to Work Co-ordinator’, said when she phoned Mr Smith on 17 March 2008, he told her that, on 15 March 2008, when the team he supported, the Newcastle Knights, scored a try, “he jumped up cheering and felt a pop in his back”. In a conversation with Mr Smith on 10 April 2008, when he filled out an accident/incident form, Ms Cullen asked him why his back had not been sore for the past two years: “He said, ‘It’s never stopped being sore and I have been having remedial massages every week’.”
I agree with the Appellant that in the last four lines of paragraph 35 of her Statement of Reasons, the Arbitrator made a finding without reference to supporting evidence. Referring to the differing accounts given by Mr Smith about the incident on 15 March 2008, and whether he was just sitting at the time he experienced severe pain in his back or whether he jumped up to cheer his team in the course of watching the football match and “heard a pop” (Dr Martin’s report dated 16 June 2008), the Arbitrator comments that if Mr Smith experienced the pain when he jumped up cheering and “felt a pop in his back”:
“it does not follow that such an event was not the result of the long-term effects of the Applicant’s work. A ‘popping’ or a disc bulge could occur when doing nothing other than sitting and then jumping up, if the back has been significantly weakened in the past.”
The Appellant submits, correctly, that such a finding must be founded on the evidence of a medical expert, referring to the discussion in Design Metal Group Pty Ltd v Glen Wallis [2006] NSWWCCPD 105, at paragraphs 34 to 40. Such a finding must be founded on specialist knowledge which, in this instance, is beyond the general knowledge that it can be assumed a Commission Arbitrator will acquire in the course of undertaking his or her duties. In this case, the Arbitrator erred in relying, presumably, on her own general knowledge of such matters rather than on medical evidence.
In the paragraphs following, the Arbitrator goes on to discuss the medical and other evidence relevant to the issue of whether there was an injury to Mr Smith’s back and right leg arising out of the nature and conditions of his employment. She had regard to the nature of the work undertaken by Mr Smith in the period between 15 August 2005 and 15 March 2008, having earlier discussed the evidence of Mr Bowen (at paragraph 24), whom I note appears only to have had direct knowledge of the work undertaken by Mr Smith in the period between when he became Operations Superintendent in late July 2007 and the date of the incident on 15 March 2008.
With regard to the injury to Mr Smith’s right leg, there is no dispute that the chiropractic treatment Mr Smith received from the Wellness Centre was for problems with his knees. Nevertheless, there is a note in the Centre’s clinical records (dated 15 March 2006) of Mr Smith also suffering back pain and of pain from the “waist down”. In his clinical notes (which are difficult to read) for 14 November 2006, Dr Martin records “Use hydrozole to Rt thigh + ? groins”. Hydrozole is a cream that can be used to relieve inflammation. In his clinical notes for 13 August 2007, Dr Martin also appears to refer to Mr Smith’s “rt thigh at least 8/12 – NAD”.
In the WorkCover Certificate completed by Dr Martin on 17 March 2008 stating that Mr Smith was unfit for work, he diagnosed Mr Smith’s injury as “L5/S1 Disc Injury – Current Aggravation on 15 March 2008”, stating that Mr Smith’s employment was a substantial contributing factor to this injury and noting that the original injury occurred on 16-17 May 2005. The later certificates completed by Dr Martin are similar.
Dr Richard Ferch, Neurosurgeon, in his report to Dr Martin dated 7 April 2008, records that:
“In 2005 he developed a low back injury while shovelling in a pit. At that stage his pain was predominantly low back pain however over the last 3 months he [Mr Smith] has developed increasing posterior thigh pain. The pain radiates down the posterior aspect of his thigh to the level of his knee. He also experiences some numbness in his posterior thigh.”
Dr Ferch referred to a recent CT scan of Mr Smith’s lumbar spine:
“which does confirm some degenerative changes on the left at L5-S1 where there is some lateral disc bulging. I can see no clear evidence of nerve root compromise on the right.”
In a later report dated 8 May 2008, Dr Ferch comments on a recent MRI scan:
“The MRI scan does confirm mild degenerative change at the L5-S1 level with some left sided disc bulging. The right sided nerves exit without any compromise.”
In his report to Dr Martin dated 21 May 2008, Dr Marc Russo, Specialist in Pain Management, also refers to Mr Smith’s account of his low back pain having:
“probably got worse over the last 12 months. What he describes is constant, dull, aching pain present over the low back at the L5/S1 segmental level with radiation across laterally to the lateral aspect of both hips and then radiating down the posterior thigh as far as the knee.”
There appears to have been little discussion of causation in the parties’ submissions to the Arbitrator at the hearing, and her discussion of this in her Statement of Reasons is not extensive. At paragraph 42, she noted that the “issue of causation is ultimately a legal one and I must consider all the evidence”, stating:
“In my view there are several factors that each contribute substantially to the Applicant’s ultimate pathology and problems in his back. They include the original injury in May 2005 and its continuing, but not constant effects. I do not accept the Applicant fully recovered from that injury ...”
The Arbitrator was satisfied that the relatively heavy work in which Mr Smith was engaged from August 2005 to March 2008 was “sufficient to cause the damage and additional pathology in the back that has been evident since 15 March 2005 [sic – should read 2008]” (paragraph 44). She concluded that:
“the nature and conditions of his employment from 16 May 2005 have contributed substantially to the Applicant’s present condition, and to the current pathology in his back and right leg. The Applicant’s employment has resulted ultimately in the injury that occurred on 15 March 2005 [sic – should read 2008].
45. I am satisfied that injury arose out of the Applicant’s employment with the Respondent and is therefore an injury with the meaning of section 4(a) of the 1987 Act. In so concluding I rely on the decisions such as Henderson v Commissioner for Railways (1937) 58 CLR 281; Humphrey Earl Limited v Speechley (1951) 84 CLR 126 and Hatzimanolis v ANI Corporation (1992) 173 CLR 473. Those cases suggest the terms of section 4 should be interpreted broadly and I am satisfied that the relevant causal connection exists between the Applicant’s employment with the Respondent and the occurrence of the injury to his back and right leg.”
The issue that the Arbitrator was addressing here was “Did the Applicant suffer injury to his back (lumbar spine) and right leg as a result of the nature and conditions of employment with the Respondent from 16 May 2005 to 15 March 2008?” (paragraph 4). What the Arbitrator did not do, however, is address the nature of the injury itself and explain whether the injury was a disease of gradual process, contracted by Mr Smith in the course of his employment and to which his employment was a contributing factor (section 4(b)(i) of the 1987 Act), or whether it was the aggravation of a disease (section 4(b)(ii)). To be fair to the Arbitrator, this does not seem to have been addressed by the parties in their submissions, which focused largely on the medical evidence.
If the injury was the aggravation of a disease - of a degenerative condition contracted by Mr Smith in the course of his employment and dating from the injury on 16 May 2005, there is, in my view, a difficulty with this in so far as there is a lack of medical evidence to establish that the degenerative condition was caused by Mr Smith’s injury in 2005. The only direct attribution of the March 2008 injury (the claimed aggravation of the degenerative condition) to Mr Smith’s work is that of Dr Martin. Dr Martin’s clinical notes do provide evidence that Mr Smith experienced ongoing back problems between August 2005 and March 2008. However, while in the WorkCover certificates issued for Mr Smith, Dr Martin diagnoses the aggravation of a L5/S1 disc injury, the original injury being that of 16 May 2005, there is no medical evidence to establish that a L5/S1 disc injury occurred in May 2005, Dr McDonald’s contemporaneous diagnosis being that of sacroiliac joint strain. Dr Ferch, while referring to “degenerative change particularly on the left at L5-S1 where there is some lateral disc bulging”, does not link this with the May 2005 injury.
Thus, in my view, there was insufficient evidence before the Arbitrator to establish causation in relation to the aggravation of a disease. I am not satisfied that the evidence establishes a causal chain linking the injury claimed following the incident on 15 March 2008 with the injury suffered on 16 May 2005: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 462-464 (per Kirby P, with whom Sheller and Powell JJA agreed); Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39; Council of the City of Sydney v Estate of Belinda Jane Griffey and anor (No 1) [2008] NSWWCCPD 114.
If the injury was a disease of gradual process, contracted as a result of the nature and conditions of Mr Smith’s employment between May 2005 and 15 March 2008, I am not satisfied that the Arbitrator has adequately explained the evidence she relied upon in making that finding.
In conclusion, I am not satisfied that the Arbitrator provided an adequate statement of reasons for her decision in so far as she failed to set out with sufficient clarity relevant findings on material questions of fact. Arbitrators have a statutory obligation to provide adequate reasons for their decisions: section 294(2) of the 1998 Act; Rule 15.6 of the Workers Compensation Commission Rules 2006; and see, for example, Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56. An arbitrator who fails to provide an adequate statement of reasons makes an error of law if the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise her statutory duty to fairly and lawfully determine the application: YG & GG v Minister for Community Services [2002] NSWCA 247. In my view, this was the case in the present matter given the inadequacies in the Arbitrator’s discussion of the medical evidence referred to above and her failure to make relevant findings on the issue of injury.
In the light of this and noting that neither of the Applicant’s specialists, Dr Ferch and Dr Russo, addressed the issue of causation (presumably because they were both treating specialists, and were reporting to Dr Martin, by whom Mr Smith was referred) and that Dr Graham’s opinion would seem to be based on incomplete information, the appropriate course is for me to set aside the Arbitrator’s decision and remit the matter to a different arbitrator for the matter to be re-heard and re-determined.
DECISION
The decision of the Arbitrator dated 23 September 2008 is revoked and the matter is remitted to another arbitrator for determination afresh in accordance with these reasons.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
15 January 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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