Southern Cross Care (NSW & Act) Incorporated v Esmaeili
[2010] NSWWCCPD 25
•15 March 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Southern Cross Care (NSW & ACT) Incorporated v Esmaeili [2010] NSWWCCPD 25 | ||||
| APPELLANT: | Southern Cross Care (NSW & ACT) Incorporated | ||||
| RESPONDENT: | Neda Esmaeili | ||||
| INSURER: | Catholic Church Insurance Limited | ||||
| FILE NUMBER: | A1-6663/09 | ||||
| ARBITRATOR: | Ms R Gurr | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 December 2009 | ||||
| DATE OF APPEAL DECISION: | 15 March 2010 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Hicksons | |||
| Respondent: | Sanford Legal | ||||
| ORDERS MADE ON APPEAL: | Paragraphs one and five of the Arbitrator’s determination of 11 December 2009 are revoked and the following orders made in their place: “1. The applicant worker injured her lower back (lumbar spine) as a result of lifting, bending, twisting, and pulling in the course of her employment with the respondent employer between February 2007 and 29 April 2007. 5. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment in relation to the applicant worker’s lumbar spine due to injury to the lower back as a result of lifting, bending, twisting, and pulling in the course of the worker’s employment with the respondent employer between February 2007 and 29 April 2007.” | ||||
| The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | |||||
BACKGROUND
The respondent worker, Ms Esmaeili, started to work for the appellant employer, Southern Cross Care (‘Southern Cross’), in late November 2006. Her duties required her to care for aged residents at the employer’s care facility at Merrylands.
Ms Esmaeli alleges that she injured her back while performing her usual duties between November 2006 and April 2007. Her solicitor gave formal notice of her injury by letter dated 21 May 2007. In a section 74 notice dated 28 August 2007, Catholic Church Insurance Limited (‘the insurer’) disputed liability on the ground that Ms Esmaeili suffered no injury.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 20 August 2009, Ms Esmaeili claimed weekly compensation from 30 April 2007 to date and continuing together with lump sum compensation in respect of 12 per cent whole person impairment. She alleged that she injured her lumbar spine as a result of the nature and conditions of her employment, which involved “lifting patients, bending, twisting, pulling and pushing from 21/11/2006 until 29/04/2007.”
In its Reply filed on 8 September 2009, Southern Cross disputed liability on the grounds set out in its section 74 notice dated 28 August 2007.
The matter proceeded to conciliation and arbitration on 19 November 2009. The Arbitrator heard no oral evidence but took lengthy submissions from each side. In a reserved decision delivered on 11 December 2009, the Arbitrator made an award in favour of the worker. The Commission issued a Certificate of Determination on 11 December 2009 in the following terms:
“The Commission determines:
1.Neda Esmaeili received a work related injury to her back (lumbar spine) arising out of her employment with the Respondent being the exacerbation or aggravation of a lumbar disc disease.
2.The Respondent to pay weekly benefits pursuant to s.36 from 30th April 2007 for a period of 26 weeks at the rate of $577.
3.Thereafter up until 2nd December 2007, weekly benefits are to be paid in accord with s.37.
4.The Respondent to pay the Applicant medical expenses pursuant to s.60 on production of accounts and/or receipts
5.The matter is referred to the Registrar for assessment by an AMS as to Whole Person Impairment in relation to the lumbar spine arising from the injury with a deemed date of 18th February 2009
6.The Application and the Reply and all attached documents are to be forwarded to the AMS.
7.The Applicant has leave to request the Registry within six weeks of the date of this determination to appoint a further telephone conference in relation to the issue of the appropriate entitlement pursuant to s.40
8.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In an appeal filed on 5 January 2010, Southern Cross seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Lay evidence
Ms Esmaeili’s evidence is set out in her statement dated 14 August 2009. She was born in Iran in 1978 and came to Australia in October 2004. She studied English and completed a six-month “nurse-training” course at TAFE to become an assistant in nursing.
Her job with Southern Cross required her to care for aged residents at a retirement village at Merrylands. She fed, bathed, toileted, and dressed the residents. She often lifted the residents. Lifting machines were available, but were rarely used by her because someone else was often using them.
She started to experience back pain in late February or early March 2007. She felt the pain mostly when she was lifting patients or was bending. Expecting that the pain would go away, she made no complaint of her symptoms to anybody at Southern Cross.
Ms Esmaeili worked on Sunday 29 April 2007 and felt extreme pain in her back. She did not work on the following Monday but telephoned and spoke to either Sister Millie or Sister Mira and said words to the effect “I have a problem, I can’t come to work today.” She could not recall if she said she had a back problem.
She stayed at home on 30 April 2007. She could not move much because she was in a lot of pain.
Ms Esmaeili saw her family doctor, Dr Hamid, on Tuesday 1 May 2007 and told him that she had had back pain for about two months and that it had been severe after she finished her shift on Sunday 29 April 2007. Dr Hamid referred her for scans.
After seeing Dr Hamid, Ms Esmaeili attended at Southern Cross’ premises at Merrylands and spoke with Sister Carol (Caroline Allison – the employer’s Director of Care). She said to her “I had a problem with my back and I cannot work.”
Sister Carol is alleged to have screamed at her words to the effect “I don’t care what is your problem. I don’t to [sic] want to listen to you anymore. I don’t want you to work here anymore and never come back here.”
The worker alleges that Ms Allison then asked her to sign a document that she wrote in front of her. Ms Allison said, “Sign this” to which the worker replied, “what is this?” Ms Allison said, “I write what you told me, that you have a problem. Sign here. I will send copy to you.” Ms Esmaeili was not sure what she signed. She can read a little English, but could not read Ms Allison’s writing because it was very messy. Ms Allison did not read the document to her.
The evidence includes a hand written document (‘the resignation document’) in the following terms:
“To: Carol Allison
I, Neda Asmaeli [sic] CSE at J.W.A Merrylands tender my resignation effective 1st May 2007.
Regards
Neda Esmaeli [sic]
Copy to Pay Office
C. Allison (DOC)
Casual staff member – No further offer of work as Neda – sick – not well ?? may require surgery as stated by Neda in explanation for abandonment of duty shifts offered as per last roster of 18th April 07 – 1st May ’07.
No phone call received by RN’s on duty (as per Monday 30/04/07).”
From the content of the document and a comparison of the handwriting in the employer’s notice of injury form dated 4 June 2007 (completed by Ms Allison), it appears that Ms Allison wrote the resignation document.
On 18 May 2007, Ms Esmaeili saw a solicitor who explained the need to obtain a WorkCover medical certificate from her doctor. She then attended on Dr Hamid who provided such a certificate certifying her unfit for work because of “discogenic lower back pain”.
Ms Esmaeili completed a claim form on 7 August 2007 in which she alleged that her injury was “L4/5 & L5/S1 central disc herniation” affecting her lower back and legs. She described the accident as occurring as a result of “nature and conditions of employment from commencement of employment until 29/4/07.”
The insurer denied liability by letter dated 28 August 2007.
Ms Esmaeili continued to complain of low back pain, pain and tightness in her left buttock and thigh at the time of her statement. She also complained of pins and needles into her left leg, especially the toes. She stated that her back and left leg pain was getting worse and that she recently had about ten days when she had numbness in her left leg. She had an injection in her back on 7 August 2009 at Westmead Hospital.
Ms Esmaeili denied having ever previously injured her back or previously suffering back pain prior to commencing work with Southern Cross. She believes that the repetitive bending and lifting of the aged residents as part of the nature and conditions of her employment with Southern Cross has caused her back injury. Her doctors have advised her that she may need surgery.
Ms Allison signed a statement on 20 August 2007. She stated that the worker had been rostered to work between 3.00 pm and 10.00 pm on Monday 30 April 2007, but did not attend for work. Her efforts to contact the worker were unsuccessful.
At about 11.00am on 1 May 2007, Ms Allison spoke with the worker at Southern Cross’ reception area. The worker approached her saying that she needed some help with documentation for Centrelink. Ms Allison asked the worker why she had not attended work on the previous day. The worker allegedly responded that she was sick with a sore foot and also indicated pain in her abdominal region. She said she had seen a doctor and there was talk of an operation for her appendix. She said she was not well and could not perform her duties that afternoon as she was going back to see her doctor. Ms Allison said that if she was having an appendix operation she might be off work for some weeks. She told her to get well and come back when she was 100 per cent. Ms Allison made no mention of having the worker sign a resignation.
Ms Allison completed a notice of injury form on 4 June 2007. Under the heading “Describe how the workplace injury happened” the following appears:
“UNKNOWN – NOT REPORTED
Monday 30.04.07 ‘No Show’ for duty at 3.00 pm – 10.00 pm.
No phone call received from Neda. Came in to see
D.O.C. No report
of any injury made
on the 1.05.07”
Medical evidence
Dr Hamid’s clinical notes confirm that he saw Ms Esmaeili on 1 May 2007. His entry for that day records, “lower back pain”. Dr Hamid arranged for x-rays of the lumbo-sacral spine and both knees. The x-rays of the lumbo-sacral spine revealed narrowing of the L5/S1 disc space and a few “tiny osteophytes developing”. The x-rays of the knees were normal.
He saw Ms Esmaeili again on 10 May 2007 when she again complained of lower back pain. His notes confirm that complaint and also refer to a CT scan.
Ms Esmaeili had a CT scan of her lumbo-sacral spine on 10 May 2007. The scan revealed a moderate central disc herniation at L4/5 with a smaller central disc herniation at L5/S1, both causing adjacent thecal compression.
Dr Hamid saw the worker again on 18 May 2007 when he took a history of low back pain radiating to the legs. He also recorded that the worker had been with Southern Cross for five months and had developed back pain after two months. The pain continued and gradually got worse until she was not able to work and she left the job. Dr Hamid issued a WorkCover certificate certifying her unfit for work from 30 April 2007 until 28 May 2007, because of discogenic lower back pain. He continued to certify her unfit for work until 2 December 2007.
Dr Hamid prepared a report on 14 November 2007 in which he essentially confirmed the contents of his clinical notes. He recorded the following history:
“She claimed that she worked for Southern Cross Care and her job involved pulling, pushing and lifting. She worked for five months but after two months, she developed lower back pain and the pain got worse gradually and it reached a point where she was not able to work. She cannot remember the exact date of injury.”
On examination, Ms Esmaeili had lower back pain that restricted her movements. Dr Hamid arranged for the CT scan referred to above. He noted that the worker had no history of back pain and that he believed the injury was work related. The prognosis was uncertain because she suffered from constant low back pain that stopped her from engaging in any physical activities. He thought she may need surgical treatment and that she would have a permanent physical disability that would stop her from engaging in heavy work.
At the request of the insurer, Dr Hitchen, orthopaedic surgeon, examined the worker on 10 September 2007 and reported on 12 September 2007. He took a history that she experienced episodes of lower back pain, usually related to lifting patients forward out of bed or during transfers. She did not seek medical care. Around 30 April 2007, her low back pain worsened after transferring a few patients and she subsequently went off work and saw her general practitioner soon after. An MRI scan was recommended, but could not proceed because the worker was three months pregnant.
Ms Esmaeili complained to Dr Hitchen of constant lower back pain that was worse when changing positions, such as getting out of a chair or transferring. She could not walk or sit for more than 10 minutes and required assistance with all domestic activities.
On examination, Dr Hitchen noted that the worker displayed signs of embellished and amplified pain behaviour. She was able to flex to the mid-shins. Extension was neutral and said to be uncomfortable. Lateral flexion to the left and right was to 10 degrees. Neurological examination was normal. There were marked varicose veins in the left leg. Dr Hitchen described the CT scan as revealing a mild central disc protrusion at L4/5 and bulging of the L5/S1 disc, but importantly there was no evidence of nerve root compression. He diagnosed “non-specific back pain”. He added that it was possible that activities at work caused a minor musculo-ligamentous strain to the back. However, any such strain had resolved and her persisting symptoms were non-specific and not secondary to the effects of an injury or aggravation. He felt that, objectively, the worker’s current level of incapacity should have been minimal. He did not think the changes on the CT scan explained the worker’s presentation.
Dr Matalani, consultant occupational physician, examined Ms Esmaeili at the request of her solicitors on 11 December 2008. He took the following history:
“Mrs Esmaeili commenced employment with Southern Cross Care (NSW & ACT) Inc towards the end of 2006. She was employed as a carer. She was working in an Aged Care Hostel set up, caring for aged residents. Some of them were bed bound and were unable to walk. The nature of her work required transferring residents from bed to wheelchairs and sometimes she had to lift them.
Some of them were incontinent. She had to lift them up to put the nappy on. She had to clean them and take them to the shower and bathe them.
In order to shower them, she needed to bend down, as they would be sitting on the chair during the shower. She had to push wheelchairs in and out of showers and bathrooms and from various rooms. Sometimes she needed to push wheelchairs from one building to another.In the morning, she needs to dress the residents up. Many of them are unable to weight bear and she needs to bend down in order to dress them and at the same time support them.
Sometimes she needs to bend down to apply cream and dressings to the residents’ feet and legs.”
In summary, Dr Matalani described the worker’s duties as requiring repetitive bending of her back with lifting and transferring of residents. Sometimes the mechanical lifters were not available and, on many occasions, she had to work unassisted. She had to move quickly and work in a “speedy manner”.
Dr Matalani recorded that, over a period of time, the worker developed increasing pain in her lower back. She continued to work and did not report the pain for fear of losing her job. The pain gradually radiated down her left leg and she had pain in her left knee. She informed her manager who asked her not to return to work. She then consulted Dr Hamid who referred her for x-rays and then a CT scan. After she fell pregnant, she was not referred for any further investigations. She gave birth to her child in April 2008. At some stage, she became depressed and was referred for counselling.
The worker complained to Dr Matalani of constant pain in her lower back that radiated down her left buttock and into her left thigh to the level of the knee. She also complained of occasional pins and needles and numbness in her toes. She sometimes got pain down her lower leg. Her right leg was asymptomatic. She took panadeine forte and tramal for her pain. Her back and legs were asymptomatic prior to her employment with Southern Cross.
On examination, Dr Matalani noted the worker’s range of movement to be reduced. Forward flexion was possible to approximately 70 per cent of normal. Extension was reduced to approximately 50 per cent of normal and she was observed to tilt her spine to the left on extending her back. Lateral flexion and rotation to the left were reduced to approximately 50 per cent of normal and 70 per cent of normal on the right. There was asymmetry in the range of movement. Straight leg raising was 90 degrees on the right. On the left, it was 60 degrees with pain in the left buttock and thigh. The right leg measured 60.4 centimetres 10 centimetres above the patella and the left thigh measured 58 centimetres at the same level. There was mild weakness of the extensors of the left big toe, but no sensorineural dysfunction of the lower limbs. Reflexes were present and equal.
Dr Matalani concluded that Ms Esmaeili suffered a chronic musculo-ligamentous strain of the lower back and had imaging evidence of a disc lesion at L4/L5 indenting the canal and compressing the thecal sac. He thought she had symptoms in her left leg, “which may be consistent with nerve root irritation”. She required a referral to a spinal surgeon or orthopaedic surgeon for further assessment and investigation. He thought her injury was consistent with the stated cause and that her employment and her duties had been a substantial contributing factor to the development of her disabilities.
Dr Hitchen reviewed the worker on 23 June 2009 and reported to Hicksons on that date. Ms Esmaeili complained of constant pain in her lower and mid lumbar region and of discomfort around the posterior aspect of the left thigh radiating towards the knee. She had no neurological symptoms beyond the knee. Dr Hitchen confirmed his previous diagnosis of non-specific back pain. He recorded that the worker hoped to enrol in a childcare course at TAFE. He thought she was physically fit to work in the childcare industry in a full time capacity without restriction. He expressed no opinion as to whether she was fit for her pre-injury employment.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the worker had discharged the onus of proving causation (‘causation’);
(b)in accepting the evidence of Dr Matalani (‘Dr Matalani’);
(c)finding an aggravation of a disease contrary to the weight of evidence (‘aggravation of disease’), and
(d)finding that the worker was totally incapacitated from 30 April 2007 to 2 December 2007 (‘incapacity’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Causation
The employer submitted:
(a)the worker bears the onus of proof and has failed to explain the delay in reporting any work related injury to Dr Hamid;
(b)the existence of the resignation letter and whether the worker was told not to come back was irrelevant to the issue of injury and causation. It is highly unlikely that a qualified health professional like Ms Allison would confuse foot and appendix complaints with an alleged notification of a back injury;
(c)the Arbitrator failed to comment on the accuracy and reliability of the worker’s statement when there was no evidence that it had been interpreted to her before she signed it. The worker’s statement cannot be accepted as being accurate or reliable. The Arbitrator erred by failing to address this issue in her decision and failing to explain why, in the absence of an accredited interpreter, the worker’s statement of evidence was accepted. There was no need to challenge the worker’s evidence as she failed to discharge the onus of proof in that she failed to give evidence of how her duties caused her injury. The worker’s evidence was “nebulous and insufficient” to allow the Arbitrator to infer that the “nature and conditions” of employment caused injury to her back;
(d)as there was no evidence that an interpreter was present during the examination with Dr Matalani, the Arbitrator erred in placing substantial weight on that doctor’s evidence. The detailed description of duties recorded by Dr Matalani differed significantly from the worker’s own statement of evidence and, on that basis, there was more doubt cast on the accuracy and reliability of Dr Matalani’s evidence;
(e)it cannot be inferred that Dr Hitchen supported the worker on causation. Dr Hitchen’s statement that the “injury could have occurred” falls far short of the civil standard;
(f)the worker’s submission that the report of back pain to Dr Hamid on 1 May 2007 is sufficient is misconceived and contrary to the “common sense” approach to causation and the many factors to be considered under section 9A of the 1987 Act;
(g)the Arbitrator erred in preferring the worker’s evidence over Ms Allison’s evidence by placing significance on the worker’s poor English;
(h)there was no report from Dr Hamid explaining the delay in recording a history of work-related back complaints and reliance was placed on Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’);
(i)there is no evidence that Ms Esmaeili’s statement was interpreted for her;
(j)Ms Esmaeili could not recall if she had an interpreter when she saw Dr Matalani;
(k)the Arbitrator erred in commenting and then failing to address in her decision that “a lot doesn’t hang on” (T57) the absence of an interpreter. In the end, the Arbitrator based her acceptance on the worker’s case on an acceptance of Dr Matalani’s opinion, which was based on an assumption of the work duties he recorded, possibly without an interpreter, and
(l)the worker bears the onus of proof and there was no proof that an interpreter attended the examination with Dr Matalani.
The employer’s emphasis on the alleged delay in seeking treatment is misguided. There was no delay in seeking treatment. Ms Esmaeili saw Dr Hamid on 1 May 2007 and complained of lower back pain. Both the doctor’s report and clinical notes confirm that fact. The alleged delay is in relation to when Ms Esmaeili first linked her back symptoms to her employment. The evidence on this issue is unclear. Dr Hamid’s report does not identify when he first took a history that the worker’s back symptoms developed in the course of her employment with Southern Cross and the worker’s statement is also silent on this issue.
At the latest, Ms Esmaeili complained to Dr Hamid on 18 May 2007 that her back symptoms commenced in the course of, and as a result of, her duties at Southern Cross. Dr Hamid’s notes reveal no other potential cause of her back complaints and in these circumstances the overwhelming inference is that her complaints were caused by her employment duties. That is the inference I draw. The fact that Dr Hamid’s clinical notes do not have a reference to work on 1 May 2007 is not decisive.
I agree that the resignation is of limited relevance to the issue of injury or causation. The letter is, however, consistent with the worker’s evidence that Ms Allison asked her to sign a document on 1 May 2007.
Whilst I accept that it is unlikely that Ms Allison would confuse a complaint of back pain with a complaint of foot pain, it is certainly possible that confusion arose in respect of low back pain and appendix pain. For whatever reason, Ms Allison and Ms Esmaeili have different versions of the conversation on 1 May 2007. As neither witness was cross-examined, the Commission is left to determine the issue on the documentary evidence.
The sequence of events, namely Ms Esmaeili first attending on Dr Hamid complaining of back pain and then attending on her employer on the same day, suggests to me that it is more likely than not that Ms Esmaeili’s version is the more accurate. The absence of any reference in Dr Hamid’s notes of abdominal pain at or about the time concerned strongly suggests that Ms Allison was mistaken when she referred to Ms Esmaeili complaining of appendix pain. It is also unusual that Ms Allison makes no reference in her statement to the resignation document when that document was clearly written by her. This suggests, at the least, that Ms Allison’s statement is incomplete. I therefore accept that Ms Esmaeili complained to Ms Allison of back pain on 1 May 2007 and that Ms Allison asked her to sign the resignation document.
The attack on the reliability of the worker’s statement is without substance. Whilst it is accepted that English is not the worker’s first language, the worker’s solicitor prepared the statement with her in Arabic and English (T2.54). That was not ideal. When workers are not proficient in English, it is always preferable that their statement is recorded with the benefit of an accredited interpreter. Where that is not done, there may be uncertainty as to the reliability and accuracy of the relevant statement tendered in evidence. In the present case, however, Ms Esmaeili’s evidence is corroborated by her attendance on Dr Hamid on 1 May 2007, by the presence of the resignation document, and by the history taken by Dr Matalani of the nature of her duties with the employer. In these circumstances, I am comfortably satisfied that Ms Esmaeili’s evidence is reliable and I accept it.
The employer makes much of the worker’s failure to explain the following: how often she lifted patients, how heavy the patients were, when she first noticed back pain, the duties she performed when she first experienced back pain at work, how her back felt after lifting a patient or at the end of the day, and the duties she performed on 28 and 29 April 2007 which allegedly caused incapacity. Whilst the worker’s statement could have been better prepared, her evidence, when read with the reports from Drs Matalani and Hamid, provides a clear and succinct account of the her duties and cause of her injury.
Ms Esmaeili’s statement made it clear, and I accept, that her duties often required her to lift residents in the course of attending to their daily needs. She first experienced back pain in late February or early March 2007 and she felt that pain when she lifted patients or when she was bending. This complaint is corroborated by Dr Hamid’s evidence that her job involved “pulling, pushing and lifting”. After two months, she developed lower back pain that gradually got worse until she was unable to work. Having treated the worker since 2005, Dr Hamid noted no prior history of back symptoms and he concluded that her injury was “work related”.
Dr Matalani took a more detailed history of the worker’s duties, but the essential history was consistent with that recorded in the worker’s statement and Dr Hamid’s report. Clearly, Ms Esmaeili’s duties required her to regularly bend to attend to residents’ needs, and to lift residents. I do not accept that the worker’s evidence was “nebulous and insufficient” to allow a finding that her duties caused her back injury.
I do not accept that the Arbitrator placed undue weight on Dr Matalani’s evidence. She correctly noted that there was no “countervailing evidence” dealing with the physical nature of the worker’s duties. Whether Dr Matalani had an interpreter when he saw Ms Esmaeili on 11 December 2008 is not determinative and does not undermine the weight to be attached to his evidence. He made no mention that he had difficulty in taking a history from Ms Esmaeili. The detailed history in his report suggests that he did not have any such difficulty. Dr Matalani’s report is therefore entitled to be assessed on its face along with all the other evidence. The only reasonable conclusion is that his history is perfectly consistent with the kind of work one would expect a care service employee to perform at a nursing home facility such as that owned and operated by Southern Cross. I reject the submission that Dr Matalani’s history of the worker’s duties “differed significantly” from the worker’s statement of evidence. Whilst Dr Matalani recorded a more detailed history, the essential thrust of his evidence is perfectly consistent with the worker’s evidence, namely that the work involved all the physical activities one would expect in caring for the aged and infirm.
The Arbitrator quite rightly observed that Dr Hitchen conceded that an injury could have occurred. That was merely one piece of evidence that the Arbitrator considered in reaching her conclusion, but was not a critical or decisive piece of evidence. The worker has easily discharged the onus of proof without reliance on Dr Hitchen’s appropriate concession.
The worker’s reference to Dr Hamid’s notes providing corroborative support was perfectly appropriate and did not misconceive the “common sense” approach to causation, as Southern Cross has submitted. It identified a relevant piece of evidence to be considered along with all of the other evidence. The employer’s reference to section 9A is unclear. The insurer never referred to that section in its section 74 notice, or at the arbitration. In any event, I am comfortably satisfied that Ms Esmaeili’s employment was a substantial contributing factor to her injury.
It is difficult to understand the relevance of the submission that there is no report from Dr Hamid explaining the delay in recording a history of work-related back complaints. Whether Dr Hamid took a history of work problems on 1 May or 18 May is not determinative and, in any event, is not something he has to explain. There is no suggestion that Ms Esmaeili injured her back somewhere other than at work for Southern Cross and there is no basis for drawing a Jones v Dunkel inference. Dr Hamid’s report corroborates the worker’s claim. This submission is without merit.
For the reasons explained above, the Arbitrator did not err in saying that not a lot turned on the absence of an interpreter. Having weighed Dr Matalani’s evidence with all the other evidence, I am comfortably satisfied that Ms Esmaeili injured her back at work with Southern Cross. The worker has easily discharged the onus of proof.
Dr Matalani’s evidence
For the reasons given above, I do not accept this ground of appeal. The Arbitrator was perfectly entitled to accept Dr Matalani’s evidence on injury and causation. The doctor took a substantially accurate history, conducted a thorough examination, reviewed the relevant radiological investigations and expressed his conclusion. The employer called no evidence to suggest that the doctor’s history was inaccurate or incomplete and that, as a result, his opinion should be discounted. Dr Matalani’s evidence is essentially consistent with Dr Hamid’s conclusions.
The only contrary view is that expressed by Dr Hitchen. Even he conceded it was possible that Ms Esmaeili’s work activities caused a minor musculo-ligamentous strain. However, given Ms Esmaeili’s evidence of continuing symptoms, which I accept as genuine, and given the findings on CT scan, I do not accept Dr Hitchen’s conclusion as to diagnosis. Nor do I accept his statement that the injury has resolved.
Dr Hitchen’s description of the findings on the CT scan differs markedly from the radiologist’s report. He stated that the CT scan revealed a “mild central disc protrusion at L4/5, and bulging of the L5/S1 disc”. The radiologist described the scan as revealing a “moderate sized central disc herniation at L4/5 with the disc indenting the canal and compressing the thecal sac” and a “smaller central disc herniation at L5/S1 also causing mild thecal compression”. Given Ms Esmaeili’s evidence of significant continuing back and leg symptoms, the evidence from Dr Matalani of wasting of the left thigh (58cm as against 60.4cm for the right thigh), and Dr Hamid’s opinion that Ms Esmaeili should have an MRI scan and be referred to a neurosurgeon, I prefer the radiologist’s description of the findings on the CT scan. Dr Hitchen’s suggestion that the investigations revealed “incidental findings of premature onset degenerative disc disease” is also at odds with the radiologist’s report and, in view of the worker’s symptoms, I accept the radiologist’s evidence.
Aggravation of disease
The employer submits that the Arbitrator’s finding that the musculo-ligamentous strain aggravated or exacerbated a degenerative disc disease was contrary to the medical evidence. In response, Ms Esmaeili has referred to Dr Hitchen’s reference to investigations revealing “the incidental findings of premature onset degenerative disc disease.” The basis for Dr Hitchen’s statement is unclear. The CT scan of 10 May 2007 expressly found “no facet arthritis or pars defect and no bony narrowing of exit foramina or lateral recesses”. There was a moderate sized central disc herniation at L4/5 and a smaller central disc herniation at L5/S1. The plain x-ray of 1 May 2007 revealed no bony or articular abnormality apart from “a few tiny osteophytes developing”.
None of the medical experts in the case suggested that Ms Esmaeli’s duties aggravated or exacerbated degenerative changes in her lumbar spine. The radiological investigations do not suggest that there are any degenerative changes. Given the worker’s age (31) that is hardly surprising. In these circumstances, the Arbitrator erred in finding that the injury was an exacerbation or aggravation of a lumbar disc disease. As Ms Esmaeili did not develop symptoms until about late February or early March 2007 (see [15] above), the proper finding is that she injured her lower back (lumbar spine) as a result of bending and lifting in the course of her employment between February 2007 and 29 April 2007, and that is the finding I make on review.
Incapacity
The employer challenges the Arbitrator’s finding that the worker was totally unfit for work from 30 April 2007 until 2 December 2007. The evidence in support of that finding is in Dr Hamid’s medical certificates. The employer argues that the Arbitrator erred in failing to properly consider “the entire medical evidence”. It is submitted that Dr Hitchen was the only specialist to have examined the worker during the period of total incapacity and that when he saw her in September 2007 she was three months pregnant and her left leg was swollen due to varicose veins. Dr Hitchen concluded that any musculo-ligamentous strain had resolved. It is also argued that Dr Hamid’s medical certificates offend the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
The employer’s submissions overlook the fact that Dr Hamid’s certificates must be read with his report of 14 November 2007 where he set out a detailed history, his findings on examination, and the radiological investigations. He concluded that Ms Esmaeili suffered from “constant lower back pain which is stopping her from any physical activities” (emphasis added). This report provided a sound basis for accepting the doctor’s certification of total incapacity in the period concerned. Dr Hitchen’s evidence is at odds with the worker’s evidence (which I accept) of significant continuing symptoms and also at odds with the radiologist’s evidence. For these reasons, I prefer and accept Dr Hamid’s evidence on incapacity.
Further, it should always be borne in mind that a finding of incapacity requires an application of a legal standard to the facts found. The Arbitrator or Presidential member must be satisfied, on the balance of probabilities, having regard to the whole of the evidence that, as a result of the work injury, the worker has an incapacity in the labour market reasonably accessible to him or her. The medical evidence is an important (often critical) part of the evidence on that issue, but it is not the only evidence that is relevant to the determination.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded that the true and correct position is that, as a result of lifting, bending, twisting, and pulling in the course of her employment between February 2007 and 29 April 2007, the appellant worker injured her lower back (lumbar spine) and that she was totally unfit for work from 30 April 2007 until 2 December 2007. The Arbitrator’s determination that the worker suffered an injury in the nature of an exacerbation or aggravation of a lumbar disc disease (paragraph five) is revoked, as is her determination of the deemed date of injury (paragraph five).
The Arbitrator did not determine the worker’s outstanding claim for continuing weekly compensation under section 40 of the 1987 Act and neither party made any submissions about that part of the claim. The matter is therefore remitted to the Registrar for that part of the claim, and for the claim for lump sum compensation, to be finalised.
DECISION
Paragraphs one and five of the Arbitrator’s determination of 11 December 2009 are revoked and the following orders made in their place:
“1.The applicant worker injured her lower back (lumbar spine) as a result of lifting, bending, twisting, and pulling in the course of her employment with the respondent employer between February 2007 and 29 April 2007.
5.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment in relation to the applicant worker’s lumbar spine due to injury to the lower back as a result of lifting, bending, twisting, and pulling in the course of the worker’s employment with the respondent employer between February 2007 and 29 April 2007.”
All other orders made by the Arbitrator on 11 December 2009 are confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
15 March 2010
I, TUYET WALLIS, 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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