Smith v Parkes Shire Council
[2010] NSWWCCPD 130
•17 December 2010
| WORKERS COMPENSATION COMMISSION | ||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||
| STATUS: Confirmed Court of Appeal - StateCover Mutual Ltd v Smith [2012] NSWCA 27 (5 March 2012) | ||||
| CITATION: | Smith v Parkes Shire Council [2010] NSWWCCPD 130 | |||
| APPELLANT: | Dennis Alfred Smith | |||
| RESPONDENT: | Parkes Shire Council | |||
| FIRST INSURER: | QBE Workers Compensation (NSW) Ltd | |||
| SECOND INSURER: | StateCover Mutual Ltd | |||
| FILE NUMBER: | A1-2597/10 | |||
| ARBITRATOR: | Ms A Simpson | |||
| DATE OF ARBITRATOR’S DECISION: | 10 September 2010 | |||
| DATE OF APPEAL DECISION: | 17 December 2010 | |||
| SUBJECT MATTER OF DECISION: | Injury; erroneous factual findings; assessment of evidence; weight of evidence; aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; inappropriate use of the term “nature and conditions of employment”; alleged denial of natural justice | |||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||
| HEARING: | On the papers | |||
| REPRESENTATION: | Appellant: | White Barnes | ||
| Respondent in the interests of the First Insurer: | Sparke Helmore Lawyers | |||
| Respondent in the interests of the Second Insurer: | Bartier Perry | |||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 10 September 2010 is revoked. The matter is remitted to another Arbitrator for determination of the outstanding issues of weekly compensation, hospital and medical expenses, apportionment, and remittal to the Registrar for referral to an Approved Medical Specialist. The respondent employer is to pay the appellant worker’s costs of the appeal and of the first arbitration, as agreed or assessed. Those costs are to be paid by the insurers in equal proportions. The first arbitration is certified as complex and each party is entitled to an uplift on those costs of 30 per cent. | |||
BACKGROUND TO THE APPEAL
The appellant worker, Dennis Smith, started work with the respondent employer, Parkes Shire Council (the Council), as a labourer in about 1992. His duties required him to perform a full range of heavy physical activities, including shovelling, lifting and squatting.
He alleges that he received three injuries in the course of his employment with the Council. First, he alleges that, on 11 April 2001, he suffered a twisting injury to his right knee and lower back when an industrial hose he was using to clean treatment tanks became jammed, causing his body to jerk. Second, he alleges that he injured his right knee again on 31 March 2005, when he was climbing from a drain. Last, he alleges that, as a result of the physical nature of his duties between “1991 [sic] and 1 March 2008”, he suffered an aggravation, exacerbation and acceleration of a disease in his right knee and lower back.
The Council was insured by GIO General Ltd (GIO) up to 30 June 2001 and thereafter by StateCover Mutual Ltd (StateCover). GIO’s potential liability in respect of the claim was “re-allocated” to QBE Workers Compensation (NSW) Ltd (QBE) on 23 March 2010.
Mr Smith continued with his normal duties until he ceased work on 12 March 2008. He did not submit a claim for compensation in respect of his right knee and lower back until 3 November 2008.
Mr Smith stopped work on 12 March 2008, mainly because of symptoms in his left hand and wrist. He apparently submitted a claim in respect of those symptoms and StateCover accepted liability by letter dated 18 August 2008. However, StateCover disputed liability in respect of the left wrist in a s 74 notice dated 1 October 2008. Mr Smith has not alleged any injury to his left hand in the present proceedings.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 30 March 2010, Mr Smith claimed compensation in the sum of $724 per week from 1 March 2008 to date and continuing, together with lump sum compensation in respect of a 15 per cent permanent impairment of his back and a 30 per cent permanent loss of efficient use of his right leg at or above the knee as a result of his injuries on 11 April 2001. He also claimed lump sum compensation in respect of a three per cent whole person impairment as a result of the condition of his right lower extremity. He sought a general order for the payment of hospital and medical expenses.
Both insurers disputed liability on the grounds that Mr Smith:
(a) did not injure his back or right knee in the course of his employment and, if he did receive such an injury, his employment had not been a substantial contributing factor to that injury;
(b) was not incapacitated as a result of any work injury, and
(c) had not sustained any permanent impairment as a result of any work injury, and that the need for medical treatment had not resulted from any work injury.
The Commission listed the matter for conciliation and arbitration on 30 June 2010. The Arbitrator heard lengthy submissions, but took no oral evidence.
In a reserved decision delivered on 10 September 2010, the Arbitrator made an award for the respondent. The Commission issued a Certificate of Determination on 10 September 2010 in the following terms:
“The Commission determines:
1. There is an award for the Respondent.
2. There is no order as to costs.
3. The matter is certified as complex and each party is entitled to uplift on costs of 30%.”
In an appeal registered on 5 October 2010, Mr Smith seeks leave to appeal the Arbitrator’s determination.
LEAVE
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
It is not disputed that the monetary thresholds in s 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS REVIEW
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.”
Mr Smith has submitted that the matter is one that “has some complexity” and that the Arbitrator’s analysis calls into question the worker’s credibility. As a result, the Arbitrator’s findings “demand a full oral argument” and the matter is not one that is capable of being dealt with on the papers. Both insurers submitted that the matter could be dealt with on the papers.
I do not believe the issues raised on appeal are so complex that an oral hearing is required. All parties have made lengthy written submissions dealing with the issues in dispute and the Commission has a transcript of the arbitration proceedings.
Having regard to these documents and to Practice Directions Nos 1 and 6, I believe that the appeal can be determined on the basis of these documents and I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding a conference or formal hearing, and that is the course I propose to adopt.
THE EVIDENCE
Mr Smith
Mr Smith’s evidence is set out in two statements. In his first statement, dated 28 October 2008, Mr Smith said that most of his days were spent clearing sewer lines using sewer rods. He had to repeatedly push metal rods into sewer pipes. He also had to hose around the perimeter of four sewerage tanks. He had to drag a long hose that would repeatedly catch on obstacles around the tanks. When it did, his body and arms were jerked.
On 11 April 2001, Mr Smith was using a hose to clean out holes around the base of a treatment tank at the sewerage treatment works. The hose became stuck and he was “heavily jerked and jolted”. He was aware of instant pain affecting his lower back around the belt-line and also in his right knee.
Mr Smith did not seek treatment because, due to a lack of doctors, it was not easy to obtain medical treatment in Parkes. He treated himself with ice and other “home treatments”, and remained at work. However, he continued to suffer ongoing pain and stiffness in his lower back and sharp pain in his right knee.
Following the incident on 11 April 2001, Mr Smith lodged a notification of injury form with his then supervisor, John Sutton.
Mr Smith said that he again injured his right knee on 31 March 2005. On that day, he was working at Spicer Park Caravan Park cleaning out drains. As he climbed out of a drain and attempted to stand, he felt a sharp pain in his right knee. He reported the incident, but did not seek medical treatment.
In late 2007 and early 2008, Mr Smith began to experience pain, stiffness and swelling in his left hand. He was unable to fully straighten his fingers or make a grip. His hand became very weak. In addition, he felt an aching and weakness in his left shoulder and along his left arm generally. On 12 March 2008, his supervisor told him to go home because he was unfit.
Mr Smith also experienced a “deterioration in the condition” of his back and right knee in late 2007 and early 2008. He said that his knee became “much more painful and stiff”, and that his “back was becoming much worse”. He experienced pain and sensory changes in both legs, “particularly in the course of bending, twisting, turning and lifting movements in the course of [his] work”.
Mr Smith’s second statement is a handwritten statement dated 21 August 2009 in which he has set out the nature of his duties with the Council. In summary, those duties included digging, laying pavers, lifting manhole covers, walking and shovelling.
Greg Duffy
Mr Duffy is the Council’s urban works supervisor. He provided a statement on 28 April 2010. Though he has supervised Mr Smith over several years, he was not his direct supervisor in April 2001. He did not observe the worker to be “carrying any form of injury”.
Mr Duffy confirmed that the worker complained to him on 31 March 2005 that he had injured his right knee whilst getting out of a drainage pit at Spicer Park Caravan Park on that day. The worker said that he was okay and he continued with his normal duties. On 16 May 2005, Mr Duffy signed an injury report form in respect of the March incident.
Other than the complaint on 31 March 2005, the worker made no other complaint to Mr Duffy between 1991 and 2008 that his duties caused a strain to his back or right knee.
At the end of 2007, Mr Duffy noticed that the worker “did not appear to be travelling very well and appeared to be having difficulties performing his required duties”. At about that time, the worker spoke to Mr Duffy and showed him his left hand, which appeared to be swollen. Over the next three months, Mr Duffy noticed that the worker was not moving as freely as he had been, and appeared to be dragging his left leg and favouring his left arm and shoulder. He thought that the worker might have had a stroke.
In March 2008, Mr Duffy approached the personnel officer, Craig Dumesny, and told him that he believed the worker was not fit to continue working. As a result, Mr Smith was stood down on 12 March 2008, but remained a Council employee. Since then, Mr Duffy has spoken to the worker, but at no stage did the worker indicate that his condition was work-related.
Mr Duffy agreed that it was not easy to see a doctor in Parkes.
Craig Dumesny
Mr Dumesny provided a statement on 28 April 2010. He said that Mr Smith started work with the Council on 2 November 1992 and retired for medical reasons on 5 January 2009.
In respect of the incident on 11 April 2001, Mr Dumesny said (at [5] of his statement):
“I am now aware that Dennis Smith has alleged that he injured himself in an incident that is alleged to have occurred on 11 April 2001. I am now aware that Dennis did make an entry in the Parkes Shire Council Notice of Injury and Treatment Register that was issued to the Sewerage Treatment Plant premises. This entry is not dated either by Dennis Smith or his then supervisor who was John Sutton. The form indicates that Dennis injured his knee and back. It describes the cause as being when he was cleaning out air vents and was pulling a hose around to clean air vents and the hose joint got stuck.”
He added that the “Injury Report Form was not taken out of the Notification Book until 22 February 2003”, when the department director, Kent Boyd, signed and dated the report. The worker’s sick leave records revealed that he had no time off work as a result of the incident on 11 April 2001. Mr Dumesny did not observe anything about the worker’s movements that would indicate that he was carrying an injury.
After receiving a WorkCover medical certificate on or about 20 October 2008 relating to a back injury on 11 December 2001, Mr Dumesny checked the Council’s records, but could find no record of any injury at or about that time. He spoke to Mr Smith, who told him that the injury (incident) occurred on 11 April 2001, not 11 December 2001, and that he had “definitely filled in a report”. On again searching the Council’s records, Mr Dumesny found a report that the director “signed off on” on 22 February 2003, but had never been dated by either Mr Smith or his then supervisor, and that was why it was not originally located.
Mr Dumesny confirmed that Mr Smith reported his injury on 31 March 2005 and that that report referred to him having previously injured his right knee. Mr Dumesny took this to be a reference to the injury on 11 April 2001.
Mr Dumesny had regular contact with the worker between 1992 and 2008. He said that Mr Smith never referred to any injuries and did not appear to be carrying any injuries. Mr Smith had no time off work for his alleged injuries and Mr Dumesny was not aware of any problem the worker had with his back or right knee.
Mr Dumesny confirmed Mr Duffy’s evidence about the circumstances in which Mr Smith ceased work in March 2008. He said that Mr Smith consulted his doctor, Dr Robertson, on 29 May 2008 and obtained a normal medical certificate (not in evidence) backdated to 12 March 2008. The first WorkCover medical certificate Mr Dumesny received from Mr Smith was on or about 28 July 2008. That certificate diagnosed the worker as suffering from left carpal tunnel syndrome. Mr Dumesny reported the matter to StateCover and lodged a claim. The first WorkCover certificate Mr Dumesny received in respect of the worker’s back and right knee was on or about 20 October 2008.
Mr Dumesny found the worker to be a “jovial and hardworking employee”. He was a person who “rolled with the punches and had a good ability to deal with problems that confronted him”. He never caused “any grief” to the Council and was not a person who “got angry or lost his temper”. Mr Dumesny was disappointed that the worker had now brought a workers compensation claim and felt that he had been “encouraged or coached to go down the workers compensation path”, which was “not the Dennis that I knew”.
He agreed that it was difficult to see a doctor in Parkes.
Documentary evidence
The injury report referred to in Mr Dumesny’s statement as having been signed by the director on 22 February 2003 is in evidence. However, the copy in evidence is an extremely poor reproduction and is very difficult to read. The date of injury appears to be blank. The time of injury is 8.30 am. The cause of injury is impossible to decipher, but the nature of injury is “hurt right knee and back”. The form confirmed that Mr Smith lost no time from work. Why the Council did not make a legible copy available to the Commission has not been explained. That is extremely unsatisfactory in circumstances that Mr Dumesny obviously had access to a legible copy at the time he prepared his statement.
In respect of the injury on 31 March 2005, Mr Smith completed a document headed “Employee Report of Injury/Incident” on the day it occurred. The form corroborates Mr Smith’s evidence that he injured his right knee whilst getting out of a pit at the Spicer Park Caravan Park. It also confirms, as Mr Dumesny said, that Mr Smith had previously hurt his right knee. Mr Duffy signed this form, but not until 16 May 2005. For reasons that the Council has not explained, the director did not sign it until 1 June 2006.
On 17 March 2008, the Council wrote to Dr Robertson referring to recent advice “relayed on to Council by Dennis Smith regarding problems he is experiencing with his right knee, left shoulder and left hand”. Mr Smith advised that he had been aware he was suffering these problems, but had been putting up with them for some time. The Council sought Dr Robertson’s assistance in determining Mr Smith’s fitness for work. There is no evidence before the Commission that Dr Robertson replied to this letter.
At some stage in 2008, Mr Smith submitted a claim form in respect of the condition of his left hand and wrist. StateCover accepted this claim in a letter dated 18 August 2008. Exactly what payments it made is not known, but StateCover prepared an injury management plan on 27 August 2008.
Mr Smith submitted a claim form for his back and right knee on 3 November 2008. That document gave a date of injury of 11 April 2001 and described the injury as having occurred as follows:
“I was pulling [a] hose around, cleaning air vents of new work when [the] hose joint became stuck which caused me to jerk and hurt my right knee and back.”
On 21 November 2008, Mr Smith underwent an early worksite assessment at the hands of Rebecca Walsh, occupational therapist. In her report dated 24 November 2008, Ms Walsh recorded the following history:
“Mr Smith reported on the 19/11/2008 that he had injured his back and right knee in April 2001. He stated that he had been pulling a hose around within the sewerage works department when the hose was caught and he jarred his lower back and fell against a wall injuring his right knee.
Mr Smith reported that he continued working following the injury. Mr Smith reported that initially he did not think that he had injured himself too badly. However, he reported that he has continually since the injury re-aggravated his back and knee injury. Mr Smith reported that he has been off work since March 2008 in an attempt to have his back, right knee and right hand fixed due to reported injury.”
Medical evidence
Mr Smith sought medical treatment from Dr Saha, general practitioner at Mt Colah, in July 2008. Dr Saha referred him to several specialists to investigate his left hand and arm symptoms, and he was initially diagnosed with left carpal tunnel syndrome.
Dr Saha seems to have referred Mr Smith to Dr Lord, consultant physician neurologist, on 14 July 2008. Dr Lord reported to Dr Saha on the same day.
Dr Edmunds, hand and wrist surgeon, saw Mr Smith on referral from Dr Lord on 24 July 2008 and provided the first WorkCover certificate on that day. He diagnosed left carpal tunnel syndrome (though the symptoms were not typical) and said that surgery was required.
At the request of Dr Saha, the worker underwent a lumbar CT scan on 29 August 2008, which revealed an L5/S1 disc protrusion and a small left L4/5 paracentral disc protrusion, together with facet joint osteoarthritis at L3/4, and degenerative narrowing of the spinal canal at L4/5 and bilateral facet osteoarthritis at L5/S1. The first WorkCover certificate dealing with the back is from Dr Saha dated 13 October 2008. It recorded a date of injury of 11 December 2001.
Dr Aggarwal, consultant neurologist, examined Mr Smith on 11 September 2008. Mr Smith gave a history of a gradual onset of left upper limb weakness that commenced around 12 March 2008 and had progressed since that time. He also developed some weakness in his left lower limb at about that time. He also had associated paraesthesia and numbness in his left hand, which recently had started to affect his right hand. He also had pain in his hand, wrist and in his lower back. Mr Smith’s speech was slow and slightly dysarthric. His gait was hemiplegic and he dragged his left foot and held his left arm in a flexed position.
Dr Aggarwal admitted Mr Smith to Concord Hospital for investigations on 11 September 2008. The discharge referral from the hospital refers to Mr Smith having noticed weakness in his left hand six months prior to his admission. His symptoms had gradually worsened over time and involved general weakness of his left upper limb. He described a two-month history of progressive lower limb weakness. He was discharged from hospital on 16 September 2008.
Dr Aggarwal reported on 5 November 2008 that the worker had signs of Parkinsonism. Since his discharge from hospital, he had noticed a marked improvement in his symptoms. He was able to lift his left shoulder to 120 degrees and had normal shoulder power. However, there was still mild weakness in his left hand, but that had also improved. He no longer dragged his left leg when he walked, but he did so when his back pain increased.
Dr Matthew Giblin, orthopaedic surgeon, examined the worker on referral from Dr Saha on 24 November 2008. He took a history that, seven years previously, Mr Smith was pulling a hose when it caught and wrenched his back and twisted his right knee. Though he had continued working, the pain had recently started to increase and it got to the stage where he was having difficulty coping. Most of his pain was in the lower lumbar area, with radiation more down the left leg than the right leg. Mr Smith also complained of pain in his right knee.
Dr Aggarwal reported on 18 December 2008 that there had not been much change in Mr Smith’s symptoms. He continued to walk well and had good left upper limb function. However, he had ongoing left hand weakness. The doctor wondered whether the continuing symptoms were related to a complex regional pain syndrome (reflex sympathetic dystrophy).
On referral from Dr Giblin, the worker underwent an MRI scan of his right knee and his lumbar spine on 9 April 2009. The scan of the right knee revealed moderate degenerative joint disease within the patellofemoral joint space and moderate to marked degenerative joint disease in the medial tibiofemoral compartment. There was also a tear of the posterior horn of the medial meniscus and thickening of the posterior cruciate ligament, consistent with a previous partial tear or ongoing strain. In respect of the lumbar spine, the MRI scan revealed disc desiccation at the L4/5 level and a small right foraminal disc protrusion. There was also narrowing of the neural foramen due to osteophyte formation and adjacent degenerative facet joint disease.
Dr Giblin examined the MRI scans and reported again on 22 April 2009, when he confirmed that the scans revealed moderate degenerative changes in the right knee and multiple level degenerative changes in the lumbar spine. He recommended surgery for the right knee.
Dr Saha reported to GIO on 11 August 2009 in the following terms:
“Dennis injured his back while at work and according to him he reported the incident to the office but they could not trace the report. I am not sure whether he reported this injury in 2001 or 2004.
As I understand, he was off sick for some time after that incident. Over the years the back pain got worse and I am sure that [the] recent incidence of back pain is related to the incident of 2001. The degenerated [sic] changes would [sic] happen on the damaged parts.”
Dr Aggarwal reported on 13 August 2009 that there had been a “marked improvement” in Mr Smith’s overall level of function and mobility. His gait had improved and he was no longer dragging his left leg, but he still had reduced “arm swing” on the left.
Dr Huntsdale, orthopaedic surgeon, examined Mr Smith on behalf of GIO on 7 October 2009. He took the following history:
“On 11 April 2001 whilst working for the Parkes Shire Council, Mr Smith was pulling on a water hose which was stuck. He said he was walking forwards and hosing; when the hose caught, he was jerked around and alleges an injury to his right knee and lower back. Mr Smith said both those areas were symptom free prior to the injury.
He told me he reported the injury at the time but continued to work. Mr Smith also stated that the injury report was ‘lost for a period of time, but seems to have resurfaced’.
Mr Smith stated that being a stoic sort of fellow he did not see a doctor at that time and just simply thought he would get better. There is a poor photocopy in the notes which is, I suspect, the original injury report.”
Dr Huntsdale also recorded that, over the following six years, Mr Smith’s knee and lower back became “progressively more painful”. The doctor recorded that Mr Smith worked for the Council as a general labourer and that that work involved digging, operating a backhoe, driving, using a skid loader, and also working with signage. Mr Smith had previously played baseball and hockey, but ceased those activities when he was 40 – that is, about 24 years ago.
Dr Huntsdale diagnosed the worker to have “degenerative lumbar spinal disease in his back” and “quite probably some medial meniscal tearing associated with some degenerative change in his [right] knee”. Additionally, in all probability, he had left rotator cuff pathology. The doctor thought that the worker’s current pain related to his degenerative changes and that it was “unlikely” it was related to the 2001 injury.
Dr Huntsdale stated that the worker’s duties were “apparently of a heavy nature lifting concrete bags, climbing in and out of holes, laying sewer lines etc”. However, he added that:
“In regard to Dr Giblin commenting on degenerative change in the MRI, one cannot state with certainty that the degeneration is because of the injury sustained in 2001.
It may well be just the natural history of his constitutional osteoarthritis of his knee.”
Dr Huntsdale stated that he believed Mr Smith’s work (both the nature and conditions of his service and the injury he sustained to his knee and back) “was a substantial contributing factor”. He added, however, that Mr Smith probably had some pre-existing degenerative changes in his knee and back that had been aggravated by his injury.
Under “Summary”, Dr Huntsdale stated:
“In summary, Mr Dennis Smith has lumbar degenerative disease and osteoarthritis of his knee. These are constitutional conditions which I believe have been aggravated and, to some extent, contributed to by the type of work that he has done over the years. He sustained an aggravation of both these conditions in an injury which occurred at work in 2001 but given the time lapse since the accident, I believe symptoms he has now are related to his ongoing constitutional disease and not the work injury. I note no specific injury to the left shoulder.”
Dr Bentivoglio, orthopaedic surgeon, examined Mr Smith at the request of his solicitors on 16 October 2009. In his report of 19 October 2009, Dr Bentivoglio recorded a history that Mr Smith sustained a twisting injury to his back and right knee when a hose jammed at work on 11 April 2001. The twist caused him to fall against a wall. He had not had problems with his back or knee prior to April 2001. He reported the incident, but finished his work on that day. His symptoms worsened the following day, but, as he believed it was only a minor muscular problem, he did not seek medical treatment. However, his symptoms persisted. As it was difficult to obtain an appointment to see a doctor in Parkes, he “elected to live with his back and knee symptoms as they were”. Mr Smith said that his knee and back symptoms had not improved since he stopped work.
Under “Diagnosis and Opinion”, Dr Bentivoglio stated:
“Right knee
Mr Smith is likely to have sustained a medial meniscal tear in the original injury that he described at work in 2001. His investigations indicate that he has subsequently developed some medial compartment degenerative osteoarthritis present in the knee region secondary to this injury.
I believe the treatment suggested by Dr Giblin was appropriate for him …
Back
Mr Smith has sustained some degree of discal damage in the lower two levels of his lumbar spine region, probably as a result of the original injury to his back at work.”
Dr Bentivoglio added that he thought all of Mr Smith’s ongoing symptoms in his back and right knee had developed “as a result of his employment with Parkes Shire Council and specifically the injury to his person in April 2001”.
Dr Bentivoglio prepared a supplementary report on 1 February 2010 in response to a letter from StateCover that advised of Mr Smith’s other health problems. The doctor was asked to clarify how the ongoing knee problems were due to the nature and conditions of the worker’s employment. He replied that he believed the degenerative changes present in the medial compartment of the right knee region “would have developed as a result of his frank injury in 2001”. In respect of the back, Dr Bentivoglio said that the findings in the CT scan in August 2008 and the MRI scan in April 2009 were consistent with a “frank injury to his back in April 2001”.
StateCover asked Dr Bentivoglio to clarify “what parts of Mr Smith’s role have caused worsening of his right knee injury since the frank incident in 2001 as this was not identified in the history taken”. Dr Bentivoglio said that he believed the worsening of Mr Smith’s right knee symptoms since the frank injury in 2001 “would be a combination of increased tearing of his medial meniscus (by natural means) as well as in part the early development of medial compartment degenerative osteoarthritis present in his knee region”. He confirmed that the degenerative changes in the medial compartment of the right knee developed as a result of the original injury in April 2001 and were a “natural progression of the abnormality caused in April 2001”.
Dr Bosanquet, orthopaedic surgeon, examined the worker on behalf of StateCover on 19 February 2010 and reported on 24 February of that year. He recorded that Mr Smith was pulling a hose on 11 April 2001 when it became stuck. When he tried to pull the hose free, he jarred his back and right knee, and noticed pain in those areas. He continued working and did not see a doctor. The pain was not that bad initially and he treated himself with Radox baths and heat packs. He had a further injury getting out of a drain, but the doctor did not record the date or circumstances of that injury. Dr Bosanquet diagnosed early osteoarthritis in the right knee and lumbar spondylosis. He believed that the injury had aggravated those changes and that the aggravation had ceased. He did not believe that Mr Smith’s ongoing knee pain was a result of the April 2001 incident, which he considered to have been a fairly minor injury.
THE ARBITRATOR’S REASONS
The Arbitrator identified the issues to be whether Mr Smith had received an injury, whether his employment had been a substantial contributing factor to any such injury, and whether he suffered any incapacity as a result of his injury.
The Arbitrator concluded that Mr Smith had not established that he suffered an injury to his back and right knee in an incident on 11 April 2001 because:
(a) there was a “lack of record of an incident on that date”;
(b) Mr Smith did not report any back or right knee symptoms to any medical practitioners for “7–8 years”;
(c) when he did consult a medical practitioner, Mr Smith failed to report the back and right knee symptoms for five months after the first consultation;
(d) there was no statement from Mr Smith that might have provided “some detail into the course of his symptoms” and their extent and duration over eight years;
(e) the unchallenged statements from Mr Duffy and Mr Dumesny were that Mr Smith had “never complained of symptoms of injury to his back or right knee referable to an incident on 11 April 01”, and
(f) there was a lack of any explanation by Mr Smith as to why he had not attended a medical practitioner about his back and right knee injury, even allowing for the difficulties in arranging an appointment with a medical specialist practitioner in a country town.
In the course of her decision, the Arbitrator stated:
(a) that there was no evidence that Mr Smith sought medical treatment for his lower back or right knee until 13 October 2008, when Dr Saha provided a WorkCover medical certificate referring to a back injury on 11 December 2001. She said that Mr Smith had seen Dr Saha in May 2008 for carpal tunnel syndrome, but had not apparently mentioned he was in pain with an injured back and right knee;
(b) she did not accept that Mr Dumesny’s statement confirmed or agreed that Mr Smith suffered an injury on 11 April 2001, or that there was a record of an injury on that date. His statement was “very clear” that there was no report of an injury on 11 April 2001;
(c) whilst she accepted that, in a country town, (obtaining) medical attention was often a problem, Mr Smith took no time off work as a result of any injury for the entire year and, when he saw a doctor seven years later in Sydney, he did so for possible carpal tunnel syndrome. There was no evidence that he mentioned his back or right leg symptoms at that consultation. Dr Saha did not issue a WorkCover certificate for the back pain until five months later;
(d) there was no indication in Dr Bentivoglio’s report as to whether Mr Smith mentioned that he had seen Dr Saha some months prior with respect to possible carpal tunnel syndrome, but without “noting the back and knee symptoms alleged”, and
(e) Mr Smith gave Dr Saha a history of having been off sick for some time after the April 2001 incident and of the back pain getting worse over the years. That history was inconsistent with Mr Smith’s evidence that he took no time off work as a result of the injury.
With respect to the incident on 31 March 2005, the Arbitrator was not satisfied that Mr Smith suffered an injury because there was no medical support for any injury arising out of an incident on that date.
With respect to the alleged injury “arising out of the nature and conditions of employment between 2001 and 1 March 2008 as a direct result of the alleged injury of 11 April 01” the Arbitrator said there was “little medical support”. Whilst she accepted that Mr Smith had done heavy labouring work most of his adult life, it was difficult to reconcile his complaints of pain and disability in his back and right knee over a seven or eight year period with the fact that he did not seek medical attention, even for pain relief, and, when he did, it was for possible carpal tunnel syndrome and some months passed before he mentioned his back and right knee problems to Dr Saha.
There was no statement from Mr Smith providing “greater detail and frequency of the heavy work he undertook” or the timing and extent of his symptoms. There was no evidence that Mr Smith’s handwritten statement had been provided to the medical specialists. Taking all the evidence into account, especially the lack of medical attention and delay, the Arbitrator found that Mr Smith had not suffered an injury caused by the nature and conditions of his employment.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) determining that no injury occurred on 11 April 2001;
(b) determining that no injury occurred as a consequence of the heavy and repetitive nature of Mr Smith’s employment;
(c) dismissing the opinions of Drs Bentivoglio and Huntsdale;
(d) denying the worker natural justice in failing to raise with the parties her dissatisfaction with the worker’s evidence, and
(e) failing to give proper reasons for rejecting Mr Smith’s evidence and failing to give full consideration to that evidence.
SUBMISSIONS
It has been submitted on behalf of Mr Smith that:
(a) the Arbitrator provided no analysis of the worker’s evidence in his statement of 4 January 2010, but focused solely on the Council’s evidence from Mr Duffy and Mr Dumesny;
(b) whether the worker’s handwritten statement was relied upon by the doctors or not was immaterial to the Arbitrator’s own assessment of the evidence. The Council called no evidence to refute the worker’s description of his duties. Dr Huntsdale’s evidence allows an acceptance in respect of an aggravation of the degenerative process affecting the back and the leg;
(c) the Arbitrator gave no proper basis for rejecting the evidence in the handwritten statement;
(d) Mr Dumesny’s statement can only be read as an acceptance by the employer that the worker sustained an injury (on 11 April 2001) that had been reported and recorded in a Council record;
(e) the Arbitrator ignored the worker’s unchallenged evidence that an injury occurred on 11 April 2001, and
(f) the Arbitrator should have made an analysis of the contribution made by the 31 March 2005 episode to any overall incapacity, the need for treatment and “the referral to an Approved Medical Specialist for assessment of whole person impairment”.
It has been submitted on behalf of QBE, which was on risk at the time of the 11 April 2001 incident, that:
(a) the Arbitrator considered the evidence from Messrs Duffy and Dumesny in conjunction with the balance of the evidence, including the unsatisfactory medical evidence, as well as the lack of any satisfactory evidence that Mr Smith suffered an injury on the date alleged, 11 April 2001;
(b) it was open to the Arbitrator to determine that she was not satisfied that Mr Smith had suffered an injury on 11 April 2001;
(c) the evidence in the safety book was, at its highest, that an injury occurred at some stage prior to 23 February 2003 and, presumably, on a date prior to the worker’s 57th birthday in December 2001;
(d) the medical histories taken seven to nine years after the alleged event, even if consistent with each other, do not assist on the issue of injury if they are not corroborated by any other factual or medical evidence;
(e) not one doctor recorded a complete and correct history. In the absence of any history of the alleged injury on 31 March 2005 or particulars of the alleged heavy nature of the work recorded in the histories, the opinions expressed by the doctors are of no evidentiary value;
(f) the Arbitrator did not deny the worker natural justice. Experienced counsel represented the worker, and
(g) the Arbitrator gave reasons for her conclusions.
It has been submitted on behalf of StateCover that:
(a) the Arbitrator did not err in finding no injury occurred on 11 April 2001, or as a result of the nature and conditions of employment, because there was no probative medical evidence that that incident, or the nature and conditions of employment, caused any pathology in the worker’s right knee or back. If the Arbitrator did err, it was of no consequence because there was sufficient evidence for the Arbitrator to conclude that the effects of any injury had resolved and had not caused any incapacity from 1 March 2008 and had not caused any permanent impairment;
(b) reliance is placed on the decision of Conargo Shire Council v Quor [2007] NSWWCCPD 245 (Quor) at [79], where it was said that the bare assertion of an increase in symptoms does not, without proper medical evidence, support a conclusion of injury;
(c) Mr Smith’s medical evidence was unexplained and based on an incomplete and inaccurate history, and should not be accepted (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds));
(d) there is “no medical evidence implicating a nature and conditions injury” as having caused or contributed to any permanent pathology, incapacity, or need for medical treatment;
(e) Dr Huntsdale’s opinion must be seen as too vague a medical opinion upon which to base a finding of incapacity or need for medical treatment. Either it is accepted in its entirety or it is not. Read as a whole, Dr Huntsdale does not support the worker;
(f) if Dr Bentivoglio’s evidence as to the effect of the injury on 11 April 2001 is accepted, then the appeal against the nature and conditions finding must, pursuant to the principles in Quor, fail;
(g) there is no medical evidence that the alleged injury in March 2005 caused any pathology, permanent impairment, incapacity or need for treatment;
(h) it does not matter what Mr Smith said in his statements about his duties and the effect they had on him. He needs support from a medical expert to discharge the onus of proof;
(i) even if there were minor errors by the Arbitrator in failing to find an injury in April 2001, the errors were not such that, but for them, a different result should have been reached, because there was sufficient evidence for the Commission to find in favour of the Council on the issue of causation;
(j) the submission on behalf of the worker that the lack of complaint about the back and right knee until five months after April 2008 could be explained because he was being investigated for a serious condition was unsupported by any evidence;
(k) the worker’s explanation as to why he did not seek medical treatment was not satisfactory or acceptable;
(l) the history upon which Dr Bentivoglio based his opinion amounted to:
“important data which was untrue or incomplete because the worker knew that the most probable diagnosis for his left hemiplegia (by the time he saw Dr Bentivoglio in October 2009) was atypical Parkinson’s disease but he did not give Dr Bentivoglio a history of that condition and did not tell Dr Bentivoglio that he was put off work because of his left hemiplegia and probable atypical Parkinson’s disease as opposed to any complaint of back or knee symptoms at the time, in circumstances where he had been performing his normal duties without time off until the respondent placed him off work on sick leave as a result of his hemiplegia.”
Therefore, Dr Bentivoglio’s opinion should be given no weight, and
(m) even if the worker suffered an injury on 11 April 2001, he had no time off work, sought no medical treatment for seven years, did not report any ongoing complaints or symptoms, and did not mention any right knee or back problems until about October 2008.
DISCUSSION AND FINDINGS
It is convenient to deal with each of the three alleged injuries under the following headings: injury on 11 April 2001, injury on 31 March 2005, and the aggravation injury.
Injury on 11 April 2001
The Arbitrator erred in her approach and conclusions in that she misinterpreted Mr Dumesny’s evidence, failed to consider properly the evidence as a whole and, in the circumstances of this case, placed excessive weight on the lack of complaint and medical attendances between April 2001 and 2008.
Mr Dumesny’s evidence corroborates Mr Smith’s allegation that he injured his back and knee in the course of his employment with the Council in an incident in 2001 and the Arbitrator erred in not acknowledging that fact. Mr Dumesny confirmed that the worker made an entry in the Council’s Notice of Injury and Treatment Register and that the form indicated that he had “injured his knee and back” when he was “pulling a hose around to clean air vents and the hose joint got stuck”. This evidence is particularly significant in circumstances where the Council has disputed the occurrence of the incident and the copy of the form produced by it is largely illegible.
While it is true that the form did not give a date of injury, Mr Smith gave evidence of the date in his statement. Apart from the unexplained error in Dr Saha’s certificate of 13 October 2008 (which had a date of injury of 11 December 2001), Mr Smith has consistently asserted that his injury occurred on 11 April 2001. After Mr Dumesny checked for an injury on 11 December 2001, Mr Smith told him that the injury occurred on 11 April 2001. Though there is no contemporary corroboration for this date, there is no reason to doubt Mr Smith’s credit or reliability. To the contrary, Mr Dumesny’s evidence is that Mr Smith was a “hard working employee” who “had a good ability to deal with problems that confronted him” and who “never caused any grief” to his supervisors. I take this evidence to be a confirmation that Mr Smith was a solid, reliable, honest and genuine employee. His excellent attendance record confirms this assessment. In other words, he is a person of good credit.
Mr Smith also gave unchallenged evidence that he reported his injury (the incident) to his supervisor at the time, Mr Sutton, and lodged a “Notification of Injury” form with him. The Council tendered no evidence from Mr Sutton, and failed to explain why it did not do so. Counsel for Mr Smith made this point at the arbitration (T11.36) and, though the Arbitrator referred to it at [19] of her Reasons, she does not appear to have given it any weight. Though it was not decisive, the Arbitrator should have considered the lack of evidence from Mr Sutton in weighing whether the injury occurred in the circumstances alleged by Mr Smith (Jones v Dunkel [1959] HCA 8; 101 CLR 298). The absence of evidence is “part of the rational weighing of evidence” (Galea v Bagtrans Pty Limited [2010] NSWCA 350 Allsop P at [2], Macfarlan JA agreeing (Galea)). The principle in Jones v Dunkel is an application of commonsense to fact-finding that is permitted by law (Galea Hodgson JA at [61], Allsop P and Macfarlan JA). Given the unexplained absence of any evidence from Mr Sutton, Mr Smith’s evidence about the occurrence of the incident on 11 April 2001 can be more readily accepted.
The fact that Mr Smith did not seek medical treatment for his injuries for several years was important, but not decisive. He has explained why he did not do so. He said:
(a) it was not easy to get medical treatment in Parkes because of a lack of doctors;
(b) he tended not to seek medical treatment, if possible, and
(c) following his injuries on 11 April 2001, he treated himself with “ice and other home treatments”.
This explanation is not only plausible, it is partly corroborated by Messrs Duffy and Dumesny who both confirmed it was difficult to get a medical appointment in Parkes because of a lack of doctors. Mr Smith’s excellent work record (also corroborated by Mr Dumesny) and the fact that he had to be told to stop work in March 2008 also attests to the fact that he tended not to seek medical treatment and that he is a particularly stoic person. Considering these matters, I accept Mr Smith’s evidence as to why he did not seek treatment for his back and knee until 2008.
Due to the way the parties have presented the evidence, I have not found it easy to prepare a chronology of events after Mr Smith stopped work on 12 March 2008. It seems that Mr Smith first saw Dr Robertson in Parkes in the first half of 2008. Whilst there is no evidence from Dr Robertson, Symbion Pathology reported to him on 20 June 2008 about blood tests done on Mr Smith in March and June 2008. Mr Dumesny said that Mr Smith saw Dr Robertson on 29 May 2008.
Mr Smith had x-rays of his right knee in April 2008 and, at Dr Saha’s request, a CT of his lumbar spine on 29 August 2008. Though the radiologist’s report for the knee x-ray is not in evidence, Dr Bentivoglio referred to it at page 7 of his report of 19 October 2009. Mr Smith said Dr Robertson arranged for a “scan” of his right knee, but did not say when that scan was done. The compelling inference is that the “scan” Mr Smith referred to was the x-ray noted by Dr Bentivoglio as having been done in April 2008. This evidence establishes that Mr Smith had complained about his right knee in or before April 2008. Similarly, I am satisfied that Dr Saha arranged for the August 2008 lumbar CT scan because of complaints Mr Smith made about his back.
Further corroboration of Mr Smith’s complaints (so far as the knee is concerned) is found in the letter the Council wrote to Dr Robertson on 17 March 2008, where the Council’s director of operations, Mr Barry, said “I refer to recent advice relayed onto Council by Dennis Smith regarding problems he is experiencing with his right knee, left shoulder and left hand”. Mr Barry added that Mr Smith advised that he had been putting up with these problems “for some time”. The Council requested assistance in determining Mr Smith’s fitness for work. There is no evidence (before the Commission) that Dr Robertson replied to the Council’s letter.
It follows from the above chronology that the Arbitrator wrongly stated (at [17] of her Reasons) that there was no evidence that Mr Smith sought medical attention for his lower back or right knee condition until 13 October 2008 when he consulted Dr Saha.
The Arbitrator also wrongly stated that Mr Smith had seen Dr Saha in May 2008 for carpal tunnel symptoms (Reasons at [17]). Dr Saha’s clinical notes state (in legible handwriting in two places) that he first saw Mr Smith on 17 July 2008. However, Dr Saha wrote a referral to Dr Lord on 14 July 2008. Dr Lord reported to Dr Saha on 14 July 2008. Regardless of whether Mr Smith first saw Dr Saha on 14 July or 17 July, it is clear beyond doubt that he did not see him in May 2008. The first WorkCover certificate is from Dr Edmunds on 24 July 2008 diagnosing Mr Smith to have carpal tunnel syndrome. The first WorkCover certificate from Dr Saha is dated 7 August 2008, not 7 May 2008. It also diagnosed carpal tunnel syndrome. The first WorkCover certificate from Dr Saha referring to the back is dated 13 October 2008. However, that does not mean that Mr Smith did not complain of his back (and knee) until 13 October 2008.
In the absence of a detailed report from Dr Saha, and in the absence of any report from Dr Robertson, it is not possible to determine exactly when Mr Smith first complained to a doctor about his back and knee injuries. However, it is clear from the knee x-rays in April 2008 and the lumbar CT scan in August 2008 that Mr Smith had mentioned those problems well before October 2008.
The Arbitrator placed excessive weight on the lack of detail in Mr Smith’s statement as to the “course of his symptoms” and their extent and duration over the years since 2001. The worker said that he continuously suffered from ongoing pain and stiffness affecting his lower back and “sharp pains” in his right knee from 11 April 2001. His condition deteriorated in 2007 and in early 2008. This was generally consistent with Dr Huntsdale’s history that the worker’s low back and knee became progressively more painful over the six years after the incident. Evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369 at [75]).
It is not determinative that Mr Smith made no complaint of his back and knee symptoms to Messrs Duffy and Dumesny, or that they did not observe him to be carrying an injury. They are not doctors and, whilst their evidence is relevant, it is not decisive.
Having regard to the whole of the evidence, I am satisfied that Mr Smith injured his back and right knee in the circumstances alleged on 11 April 2001. The nature of the injuries (the pathology) is discussed below.
Dr Bentivoglio took a consistent history of the incident on 11 April 2001, that Mr Smith had no symptoms in his back and right knee before that date, that Mr Smith did not seek treatment at the time, and that his symptoms continued after that date. After referring to that history, the radiological investigations, and his findings on examination, he concluded that Mr Smith sustained a medial meniscal tear in the 2001 incident with osteoarthritis secondary to that injury and discal damage to the lower two levels of his lumbar spine.
It is of no consequence that Dr Bentivoglio initially had no history of the atypical Parkinson’s disease or of the suspected hemiplegia. He did not alter his opinion after StateCover wrote to him with additional background material in December 2009. The reason Mr Smith stopped work was not critical to Dr Bentivoglio’s diagnosis and opinion on causation, and does not render his opinion of no weight. Dr Bentivoglio expressly noted that Mr Smith had not sought medical treatment and that he “elected to live with his back and knee symptoms as they were”. Dr Bentivoglio’s history and findings on examination provided a fair climate for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510).
Dr Huntsdale reached a similar diagnosis to Dr Bentivoglio in that he noted the MRI evidence of a tear of the medial meniscus, the degenerative changes in the right knee, and the bulging in the lumbar discs revealed in the August 2008 CT scan. However, he felt it was “unlikely” that Mr Smith’s pain was related to the incident in 2001, but was “more the nature of his aging”. I do not accept this conclusion because it is inconsistent with Mr Smith’s evidence (which I accept) that he was symptom-free before 11 April 2001 and that his symptoms continued since that date and deteriorated in 2007 and in early 2008. For the same reason, I do not accept Dr Bosanquet’s evidence. I also reject Dr Bosanquet’s evidence because he based it on an assumption that the 2001 incident was “fairly minor”. Clearly, the 2001 incident was a significant event that has caused Mr Smith considerable problems and symptoms that have continued ever since.
In all the circumstances, I accept Dr Bentivoglio’s evidence that Mr Smith suffered a meniscal tear in his right knee and discal damage in his lumbar spine in the incident on 11 April 2001. Thus, he suffered two injuries (pathologies) in the incident on 11 April 2001. That these injuries may also have contributed to the development of degenerative changes in Mr Smith’s back and right knee (disease conditions), or aggravated those conditions, does not prevent them being characterised as a personal injuries under s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) (Rail Services Australia v Dimovski & another [2004] NSWCA 267; 1 DDCR 648 at [68] (Dimovski)).
Injury on 31 March 2005
The Employee Report of Injury/Incident form completed on 31 March 2005 establishes that Mr Smith felt pain in his right knee while getting out of a pit on that day. However, on its own, that does not establish that he received a “personal injury” on that day. A personal injury is a sudden identifiable physiological or pathological change (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 at 347; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at [35] and [36]; 74 ALJR 1298; and Austin v Director General of Education (1994) 10 NSWCCR 373).
No doctor took a proper history of the incident on 31 March 2005 or its consequences. The only doctor who may have had a history of it was Dr Bosanquet, who merely recorded that Mr Smith had a “further injury getting out of the draining system in a park”. However, he expressed no opinion as to the consequences of that incident. As there is no medical or other evidence that Mr Smith received a personal injury as a result of this incident, I am unable to make a finding of injury. It may well be that the symptoms Mr Smith felt on 31 March 2005 were merely a manifestation of the injury he received in 2001. Without medical evidence on the issue, it is impossible to say. It is more than a little surprising (and unsatisfactory) that Mr Smith’s solicitor did not ask Dr Bentivoglio to comment on this issue.
The aggravation injury
The aggravation injury is pleaded as an aggravation, exacerbation and acceleration of a disease as a result of stress and strain placed on Mr Smith’s right knee and back by reason of the nature and conditions of his employment (s 4(b)(ii) of the 1987 Act). The Commission has repeatedly criticised the use of the term “nature and conditions of employment” as inappropriate (Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 at [65]). It should not be used in pleadings in the Commission.
Pleadings should accord with the evidence and should properly identify the duties or circumstances said to have caused the alleged injury. The undisputed evidence in the present case is that Mr Smith’s duties with the Council required him to engage in heavy arduous duties such as digging, laying pavers, getting in and out of trenches, and shovelling. His allegation is that, as a result of those duties, he suffered an aggravation of a disease (an aggravation injury) within the meaning of s 4(b)(ii) of the 1987 Act. Neither insurer has submitted that the pleadings did not squarely raise this issue. Each has obtained evidence dealing with it.
I accept that Mr Smith’s duties were heavy and that they were liable to place a strain on his back and right knee. Whether they caused an aggravation injury, whether employment was a substantial contributing factor to the aggravation, and whether the effect of the aggravation is continuing is another matter.
Dr Bentivoglio attributed Mr Smith’s condition solely to the incident on 11 April 2001. However, that is not the only evidence in the case. Dr Huntsdale has provided detailed evidence on the aggravation injury. He stated that Mr Smith has degenerative lumbar spinal disease in his back and degenerative changes (osteoarthritis) in his right knee. Both conditions are diseases within the meaning of s 4(b)(ii) of the 1987 Act (Duncan v Roads & Traffic Authority of NSW & anor [2007] NSWWCCPD 113 at [88]; Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors [1998] NSWCC 14; 16 NSWCCR 253).
After noting that the back and knee had become progressively more painful since 2001, and that Mr Smith’s duties involved general labouring, digging, and laying sewer lines, Dr Huntsdale concluded that the degenerative lumbar disease and osteoarthritis in the right knee had been aggravated and, to some extent, “contributed to by the type of work” that Mr Smith had done and as a result of the incident on 11 April 2001. Dr Huntsdale’s evidence on this point is both probative and logical. There is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 637 and 639).
Dr Huntsdale’s evidence is essentially consistent with Mr Smith’s evidence that his symptoms continued after April 2001 and deteriorated in late 2007 and early 2008. His knee (in particular) became much more painful and stiff and his back “was becoming much worse”. He said he experienced pain and sensory changes into both legs, “particularly in the course of bending, twisting, turning and lifting” in the course of his work. Though Mr Smith’s evidence could and should have been set out in more detail, his statement provides clear and unchallenged evidence of a deterioration in his condition as a result of his duties with the Council. That evidence is rational and consistent with the histories recorded by all the specialists who have seen Mr Smith. I have no hesitation in accepting it.
The Arbitrator correctly noted that there was no evidence that Mr Smith’s handwritten statement had been given to any of the medical specialists. She clearly thought (for reasons that she did not explain) that it was a factor against the acceptance of Mr Smith’s claim. However, given that all the medical specialists took a history of the physical nature of Mr Smith’s duties, and given that the Council did not dispute that Mr Smith performed heavy manual work, it was of no consequence that his statement had not been forwarded to the doctors and the Arbitrator erred in thinking that it was.
It follows that I accept that, in addition to the personal injuries received on 11 April 2001, Mr Smith also suffered an aggravation of his lumbar spinal disease and of the osteoarthritis in his right knee under s 4(b)(ii) of the 1987 Act as a result of the heavy physical duties he performed with the Council up to March 2008.
However, I do not accept Dr Huntsdale’s further statement that Mr Smith’s present symptoms relate to “ongoing constitutional disease and not the work”. This assertion is not supported by any reasoned explanation (other than the reference to the passage of time) and is inconsistent with Mr Smith’s evidence (which I accept) that the symptoms in his back and right knee have not resolved or decreased with the passage of time, but have continued and increased in 2007 and 2008. It follows that the effect of the aggravation is continuing.
Dr Huntsdale has poorly expressed his opinion on whether work was a substantial contributing factor to the injury. However, reading his opinion in context, the doctor seems to be saying that both the incident on 11 April 2001 and the nature and conditions of Mr Smith’s service (his duties) were a substantial contributing factor (to the injury). Whether employment is a substantial contributing factor to an injury is not solely a medical question but is a question for the Commission based on an assessment of all the evidence, lay and expert (Awder Pty Ltd t/as Peninsular Nursing Home v Kernick and anor [2006] NSWWCCPD 222 at [31]). In a case involving an aggravation injury under s 4(b)(ii), employment must be a substantial contributing factor to the event giving rise to the aggravation, acceleration, exacerbation or deterioration (King v Commissioner of Police (2004) 2 DDCR 416). Having regard to the whole of the evidence, I am satisfied that Mr Smith’s duties up to March 2008 were a substantial contributing factor to the aggravation injury to his back and right knee.
I do not accept the submission made on behalf of StateCover that Dr Huntsdale’s evidence must be either accepted or rejected in its entirety. It is open to a tribunal to accept part only of a witness’s evidence (Byers v Civil Aviation Safety Authority (2005) FCA 1751 at [33]). Dr Huntsdale’s evidence as to the effect of Mr Smith’s duties is sound and consistent with Mr Smith’s evidence about the heavy nature of his work. However, his evidence that the effect of the aggravation has ceased is inconsistent with Mr Smith’s evidence and therefore cannot be accepted.
The next question concerns the determination of the deemed date of injury for the aggravation injury. Under s 16(a) of the 1987 Act, an injury that consists in the aggravation of a disease shall be deemed to have happened at the time of the worker’s death or incapacity, or if death or incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury. Though Mr Smith stopped work at the direction of his supervisor in March 2008 because of concerns about his left hand and because he was dragging his left leg (symptoms that are not alleged to have resulted from his employment), I accept Mr Smith’s evidence that his back and right knee symptoms had increased in 2007 and early 2008 and that they also contributed to his incapacity on the open labour market in March 2008. It is trite law that an incapacity can have more than one cause (Calman v Commissioner of Police [1999] HCA 60; 73 ALJR 1609 at [38]). It follows that the deemed date of injury under s 16(a)(i) is 12 March 2008, the date when he stopped work.
OTHER MATTERS
It was also submitted that the Arbitrator denied Mr Smith natural justice by failing to raise with the parties her expressed dissatisfaction with his evidence. This submission was unsupported by any argument or reference to authority. It was misguided. The rules of natural justice and procedural fairness do not require a decision-maker to give a running commentary upon what he or she thinks about the evidence that is given (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592; [2006] HCA 63 at [48]). Though it is often helpful for a decision-maker to direct the parties’ legal advisers to issues of particular concern, that is not mandatory. The factual issues in the case were clear from the documents tendered. Mr Smith had every opportunity to address those issues and the Arbitrator did not deny him natural justice.
It has also been submitted (again without reference to authority) that the Arbitrator failed to give proper reasons for rejecting Mr Smith’s evidence. I do not accept that submission. The Arbitrator gave reasons for rejecting Mr Smith’s evidence, but, as explained above, those reasons were erroneous. Legal practitioners should focus on the merits of the claim rather than making generalised and unsubstantiated allegations on appeal.
CONCLUSION
Having conducted a review on the merits, I have concluded that Mr Smith suffered personal injuries under s 4(a) of the 1987 Act on 11 April 2001 when he jerked his back and right knee while pulling a hose in the course of his employment with the Council. He suffered discal damage to the lumbar spine and a medial meniscal tear to the right knee. I am satisfied that employment was a substantial contributing factor to those injuries and that the effect of the injuries is continuing. I am also satisfied that he suffered a further injury to his back and right knee in the nature of an aggravation injury under s 4(b)(ii) of the 1987 Act as a result of the heavy physical work he performed with the Council up to March 2008. The deemed date of injury is 12 March 2008.
That it is open to find that a worker has received a personal injury under s 4(a) of the 1987 Act and a separate aggravation injury under s 4(b)(ii) of the 1987 Act is confirmed in the Court of Appeal decision in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606, which was considered and applied in Dimovski. (For a detailed review of the authorities on this topic, see NSW Police Force v Kearns and Anor [2008] NSWWCCPD 29 at [38] to [59]).
As the parties have made no submissions on the question of apportionment or weekly compensation, the appropriate course is to remit the matter to a different Arbitrator for resolution of all outstanding issues in a manner consistent with the reasons in this decision. In light of my findings, and given Mr Smith’s age and general circumstances, it would be most surprising if this case could not now be resolved.
DECISION
The Arbitrator’s determination of 10 September 2010 is revoked. The matter is remitted to another Arbitrator for determination of the outstanding issues of weekly compensation, hospital and medical expenses, apportionment, and remittal to the Registrar for referral to an Approved Medical Specialist.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal and of the first arbitration, as agreed or assessed. Those costs are to be paid by the insurers in equal proportions. The first arbitration is certified as complex and each party is entitled to an uplift on those costs of 30 per cent.
Bill Roche
Deputy President
17 December 2010
I, MARGOT UNDERCLIFFE, 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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