Spotless Services Australia Limited v Evans - [2013] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Spotless Services Australia Limited v Evans [2013] NSWWCCPD 62
APPELLANT:	Spotless Services Australia Limited
RESPONDENT:	Anne Evans
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-6866/12
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:	30 June 2013
DATE OF APPEAL DECISION:	15 November 2013
SUBJECT MATTER OF DECISION:	Obligation upon arbitrator to provide adequate and sufficient reasons for his determination of the dispute; s 9A of the Workers Compensation Act 1987; reversal of onus of proof; referral of dispute as to whole person impairment to an Approved Medical Specialist by Registrar; relevance of expert medical evidence concerning corticospinal tract damage to terms of referral
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray Lawyers
Respondent:	Paramount Lawyers
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal in respect of interlocutory orders made on 30 June 2013. 2. The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 30 June 2013 are revoked. 3. The matter is remitted for hearing afresh by another Arbitrator. 4. No order as to costs of the appeal. 5. The costs of the proceedings before Arbitrator Tanner are to abide the outcome of the determination following remitter.

BACKGROUND

Ms Anne Evans was employed by Spotless Services Australia Limited (the appellant) as a casual catering assistant between November 2007 and May 2008. Ms Evans alleged that she had received injury to her neck and back in the course of that employment. Three separate incidents allegedly caused the subject injuries. The occurrence of injury was disputed by the appellant.
It should, at the outset, be noted that the history of injury as stated by Ms Evans from time to time demonstrates that she is a particularly poor historian. That fact has given rise to considerable confusion, and difficulty has been encountered when attempts have been made to elucidate the history of injury and when the question of the appellant’s liability has been considered.
Ms Evans alleged injury to her neck on 20 January 2008 when setting up “bain maries”; injury to her back on 9 April 2008 as she lifted a milk crate, and injury to her neck and back on 7 May 2008 as she placed milk into a refrigerator. Claims for compensation made in June and July 2008 by Ms Evans against the appellant were declined by its insurer.
The dispute concerning Ms Evans’s entitlement to compensation benefits came before the Commission for determination by Arbitrator Craig Tanner on 15 February 2013. The matter proceeded to arbitration on that day at which time the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 30 June 2013 in which findings of injury were made and the following orders were recorded:
“(1) The dispute as to whether the applicant has whole person impairment that results from injury:
(a)in January 2008 to her cervical spine
(b)on 9 April 2004 [sic, 2008] to her lumbar spine, and

(c)on 7 May 2008 to her cervical spine and lumbar spine is remitted to the Registrar for referral to an AMS.

(2) The matter is remitted to the Registrar in order that the issues referred to in Order 1 be assessed.
(3) the AMS shall also be requested to provide a general medical opinion regarding the following issues:

(a) whether the pathology affecting station and gait, bladder function, anorectal function, and sexual function, result from the cervical spine and lumbar spine injuries (and if such pathology is considered to result from those injuries, the AMS is to be requested to provide a preliminary assessment of whole person impairment in respect of station and gait, bladder function, anorectal function, and sexual function);
(b) whether back surgery was reasonably necessary as a result of injury to that body part on 9 April and 7 May 2008;
(c) the applicant’s capacity for work, and relevant restrictions that should apply to her work hours and tasks.

(4) The materials to be provided to the AMS consist of:
(a)all documents attached to the Application;
(b)all documents attached to the Reply;

(c)all documents attached to Application to Admit Late Documents lodged by the applicant on7 December 2012, 11 January 2013, 17 January 2013, 14 February 2013, respondent on 15 March 2013, and

(d)Late documents lodged by the respondent on 30 October 2012.

(5) The respondent shall pay the applicant’s costs as agreed or assessed.
A statement is attached to this Certificate of Determination setting out the Commission’s reasons for the determination.”

It is accepted by the parties that the date recorded at [1(b)] should read “9 April 2008”.

ISSUES IN DISPUTE

The appellant relies upon six grounds of appeal. Those grounds raise questions as to whether the Arbitrator erred in:
(a)     determining that Ms Evans received injury as alleged on 20 January 2008, 9 April 2008 and 7 May 2008;
(b)     failing to provide proper reasons for those findings concerning injury;
(c) failing to correctly apply the provisions of s 9A of the Workers Compensation Act 1987 (the 1987 Act) to the facts;
(d)     referring the matter to an Approved Medical Specialist for a “general medical opinion”, and
(e)     making a referral to an Approved Medical Specialist for general medical dispute on capacity for work.
The appellant submits on this appeal that the errors complained of in (d) and (e) above concern orders made which are of an interlocutory nature. That circumstance, it is argued, requires that leave to proceed with the appeal against those orders, as is permitted by s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), be granted. An application for such leave is made. In my view such leave is necessary for the proper and effective determination of the matter. My reasons for so concluding are stated below. The application should be granted, and I so order.

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in ss 352(3) and 352(4) of 1998 Act have been met.
Each party consents to the appeal being determined without the conduct of a conference or formal hearing as is permitted by s 354(6) of the 1998 Act. Having read the evidence and submissions before the Arbitrator I formed the view that it was necessary to appoint a telephone conference, which was conducted on 12 November 2013. The necessity for that conference arose given the circumstance that it appeared that the documentary evidence considered by the Arbitrator, being a report of Dr Simon McKechnie, neurosurgeon, was incomplete. The apparent oversight or omission to ensure that a complete copy of Dr McKechnie’s report dated 13 February 2013 was addressed in submissions at the telephone conference, detail of which appears below.

TELECONFERENCE ON 12 NOVEMBER 2013

At the teleconference Ms Evans was represented by Mr Long and the appellant was represented by Mr Murray. A complete copy of Dr McKechnie’s report dated 13 February 2013 had been forwarded to the Commission by Ms Evans’ solicitors and a copy, in accordance with a direction earlier made, had been served upon the appellant’s solicitors.
The parties were invited to put any submission concerning the relevance of the apparent omission to tender a complete copy of Dr McKechnie’s report before the Arbitrator. No submission, other than that the appeal should proceed, was made on behalf of Ms Evans.
The appellant, upon an assumption that the complete report was before the Commission on appeal, submitted that certain aspects of that evidence may favour the appellant. Reference was made, in particular, to history as recorded in that report.
No application was made to have the report admitted as additional evidence on appeal as may be permitted by leave: s 352(6). I indicated to the parties that, should such application be made, my tentative view was that admission of the document would give rise to irreparable prejudice to the appellant, and that such application would likely fail.
The future conduct of the appeal was addressed by Mr Murray, there being no submission put on behalf of Ms Evans. The appellant accepted that, should the appeal fail, the absence of the complete report was of no consequence. Should the appeal succeed, it was accepted that the appropriate course would be to order remitter of the matter for hearing afresh. Submissions, which were not ultimately pressed, that a number of issues might be determined firstly on appeal, were put by Mr Murray.
An order was made that the appeal proceed on the papers without the need to conduct a formal hearing.

THE ARBITRAL HEARING

Each party was represented by counsel at the hearing before the Arbitrator. The proceedings were recorded and a transcript (T) has been produced and made available to the parties. The documents tendered in evidence by each party are identified by the Arbitrator at T2. I note in passing that the documentary evidence was misdescribed by the Arbitrator at [19] of his Reasons. Nothing turns on this misdescription as the description recorded in the transcript (at T2) accurately records that evidence. No oral evidence was adduced at that hearing.
It is recorded by the Arbitrator (at T1) that Ms Evans had amended her application to discontinue her claim for weekly compensation. The orders sought by her following that amendment related to her entitlement to lump sums pursuant to ss 66 and 67 of the 1987 Act and in respect of medical, hospital and rehabilitation expenses pursuant to s 60 of that Act.
The Arbitrator, at [18] of Reasons, identified the issues in dispute between the parties as follows:
“1. Whether the applicant received injuries, within the meaning of section 4 of the 1987 Act:
(a)to her neck on 20 January 2008;
(b)to her back on 9 April 2004 [sic, 2008], and

(c)to her back and neck on 7 May 2008.

2. If the applicant did receive any injury, within the meaning of section 4, on the dates referred to above, whether her employment with the respondent was a substantial contributing factor to any such injury within the meaning of section 9A of the 1987 Act.
3. Whether the applicant received a consequential injury [sic], that involves causally-related pathology affecting the following body parts and systems, that is related to the above injuries alleged in respect of the back and neck:

(a)Upper extremities;
(b)Station and gait disorder;
(c)Bladder Function;
(d)Anorectal Function, and
(e)Sexual Function.

4. Whether back surgery was reasonably necessary as a result of any work-related injury to that body part.”

The Evidence

Having regard to the unusual circumstances of this matter and my conclusions stated below concerning disposition of the appeal and the need for remitter to another arbitrator for determination of the dispute afresh, I do not propose to attempt a detailed summary of the evidence. The following summary, though not exhaustive, may permit a reasonable understanding of the case relied upon by each party, as that evidence stood before the Arbitrator.
The evidence included two written statements by Ms Evans in which the circumstances of each of the three alleged injuries and their consequences are described. Ms Evans also relied upon the evidence of her treating doctors, Dr Hassib Faraj, general practitioner, and Dr McKechnie. Reports prepared for the purposes of this litigation by Dr P Endrey-Walder, surgeon, were also tendered by her before the Arbitrator.
The expert medical evidence relied upon by Ms Evans establishes that she had undergone C6 -7 discectomy and anterior fusion on 1 July 2008; decompressive cervical laminectomy and lateral mass fusion on 26 September 2008, and lumbar microdiscectomy and rhizolysis of the S1 nerve root on 23 December 2009. Those surgical procedures were conducted by Dr McKechnie.
Dr McKechnie, when providing an opinion as to permanent impairment resulting from the cervical spine injury, took into account sequelae diagnosed by him which included: impairment of the two upper extremities; impairment due to station and gait disorder; impairment of bladder function; impairment of anorectal function and impairment of sexual function. His approach to assessment took into account Table 15-6 found in the American Medical Association ‘Guides to the Evaluation of Permanent Impairment’ 5^th ed. (AMA 5) which, he states in his report dated 20 June 2011, serves to rate corticospinal tract damage.
The evidence of Dr McKechnie, as it stood before the Arbitrator, did not support Ms Evans allegation of lumbar spine injury. In his report dated 4 August 2010 Dr McKechnie states:
“In December 2009 [Ms Evans] developed back and left leg pain and required a lumbar microdiscectomy and spinal rhizolysis. In my opinion, this is not related to her work related injury in 2008.” (emphasis in original)
The appellant relied upon medical reports prepared by Dr Paul Hitchen, orthopaedic surgeon, and Professor Matthew Kiernan, consultant neurologist/neurophysiologist. The report of Dr Hitchen recorded that Ms Evans reported, in May 2008, relevant history as follows:
“Ms Evans attended the consultation alone, but she was running 15 minutes late. She apologised, as she felt quite confused regarding dates. As such, she wished to place on record that her officially recorded date of injury is incorrect, and having consulted her diary at home, she wishes to advise that the correct date of injury is 07/05/2008. Previously she had said it was 09/04/2008, but has since changed her position.”
Dr Hitchen’s report addressed Ms Evans’s allegation of lumbar spine injury arising from events occurring on 7 May 2008. He also recorded a history that Ms Evans experienced “neck pain early in 2008 associated with episodes of pain shooting down the right arm into the forearm”. No history of work related injury involving the neck was then given by Ms Evans. Dr Hitchen’s opinion was that the pain experienced by Ms Evans was related to “evolving lumbar spondylosis/degenerative disc disease”. He further stated that Ms Evans had suffered a muscolologiamentous strain to the lower back which “would have resolved within a day or two of the event”.
Professor Kiernan examined Ms Evans in April 2012 at which time he recorded a history of the three alleged injuries. A diagnosis was expressed as being “consistent with cervical and lumbar myelopathy”. Professor Kiernan expressed the view that “work may have served to aggravate this underlying process. Aggravation has ceased”.

Submissions before the Arbitrator

Submissions put on behalf of the appellant before the Arbitrator sought to emphasis the suggested inconsistencies concerning history found in the evidence, and reliance was placed upon the expert medical evidence tendered in its case and upon the opinion of Dr McKechnie concerning the lumbar pathology noted at [23] above.
It was further argued by the appellant that there was “no basis” upon which Dr McKechnie was able to conclude as he did concerning, as described by counsel, “consequential injuries”. That argument was directed to the findings of Dr McKechnie noted at [22] above. Further attack was made concerning the evidence as to permanent impairment which involved a suggestion of “cherry picking”, that is reliance upon multiple expert opinions. An argument seemed to be advanced that it was the Arbitrator’s function to determine whether Ms Evans had established that the spinal injuries had “led … to consequential injuries [sic] to the two upper extremities, station and gait disorder, bladder function, anorectal function and sexual function”.
Counsel for Ms Evans argued that there was persuasive evidence as to the occurrence of each injury as alleged. Reference in argument to the claim for permanent impairment included the following submission:
“So far as the consequential losses are concerned, my primary submission is that once injury and liability is established, [permanent impairment following consequential losses] are matters for the AMS to consider.”

The Arbitrator’s decision

The Arbitrator, following a consideration of Ms Evans’ evidence, the history of treatment found in Dr Faraj’s evidence and the other expert medical evidence, accepted that each of the three injuries had been received by her as alleged (at [49]). It is of significance that the Arbitrator there stated:
“I have no reason to accept that her employment with the respondent was not a substantial contributing factor to each of those injuries.”
The Arbitrator proceeded to consider what orders should be made concerning the claim in respect of ‘permanent impairment’. The orders noted at [4] above were then made. The Arbitrator observed that, upon receipt of “preliminary assessment” by an AMS “… an Arbitrator shall have the task of making a determination regarding liability in respect of any consequential injury [sic] relating to such pathology” (at [51] of Reasons).
The Arbitrator proceeded to observe:
“An Arbitrator will need to determine the applicant’s entitlements to weekly compensation, and in respect of payment of expenses in respect of back surgery, upon receipt of the AMS’s general medical opinion in respect of the issues noted at paragraph 54.” (at [53] of Reasons)

DISPOSITION OF THE APPEAL

Leaving aside the questions, which have not been addressed on this appeal, as to whether the accepted fact that the evidence of Dr McKechnie was incomplete had led the Arbitrator to relevant error, or that the proceedings had miscarried by reason of that deficiency, I am satisfied that the appellant has established that the Arbitrator had otherwise erred and that those errors have relevantly affected his decision.
The appellant asserts that the Arbitrator’s findings of fact concerning the occurrence of injury on the three occasions alleged were each made in error. Submissions suggest that both factual errors and errors of law have been committed. It is put that the evidence relied upon by the Arbitrator in support of his conclusions as to the occurrence of injury was not capable of supporting his conclusions. It is further argued that the Arbitrator has erred in law in failing to “give proper and sufficient reasons” for his decision.
The Arbitrator’s reasons for his conclusions as to injury are found between [34] and [49] of his Reasons. Putting aside the question as to whether the evidence, and those inferences drawn by the Arbitrator from that material, may have permitted his factual conclusions, I am not satisfied that those reasons stated are an adequate, or sufficient, statement of reasons for his conclusions. That there is an obligation upon an arbitrator to state sufficient reasons for his decision is clear: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. Failure to meet that obligation constitutes error of law.
I accept the appellant’s argument, which places reliance upon the decision of the Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, that such error is demonstrated by the Arbitrator’s failure to acknowledge argument advanced on its behalf, and his failure to state reasons for the apparent rejection of such argument. In particular, I note that little, if any, attention was given to the arguments founded upon the apparent deficiencies, as suggested, of the histories of injury recorded by those medical witnesses who had treated Ms Evans or had examined her for the purposes of the litigation.

The Arbitrator’s determination of matters raised by the provisions of s 9A is to be found in the terse statement made at [49] of Reasons noted at [30] above. Entitlement to compensation is dependent upon proof that the employment was a substantial contributing factor to injury. It is accepted by Ms Evans that the onus is upon her to prove relevant facts which satisfy the requirements of that section. It is asserted by her that, whilst the Arbitrator’s statement “may be inelegant”, no error is demonstrated. It is put that all that was intended by the Arbitrator by that statement was acknowledgment by him that the factual findings made concerning injury gave rise to “no additional matter for him to consider in respect of s 9A”.
Ms Evans’s argument must be rejected. The statement made by the Arbitrator plainly reverses the onus. That constitutes error which, I conclude, has relevantly affected the Arbitrator’s decision: Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561.
The Arbitrator’s order concerning referral to an AMS as found in [3] of the Certificate of Determination (noted at [4] above) is challenged. I have reached the view that the Arbitrator’s reasoning which led to those orders demonstrates relevant error, and that such orders should be revoked on this appeal.
The order of referral concerning general medical opinion regarding station and gait, bladder function, anorectal function and sexual function is misconceived. I note in passing that the terms of referral make no reference to the upper extremities as addressed by Dr McKechnie. The Arbitrator had made a finding of relevant injury. Counsel was correct when it was submitted before the Arbitrator that, once such a finding is made, the question of whole person impairment is to be referred to an AMS for appropriate assessment: s 65(3) of the 1987 Act read with s 321(4)(a) of the 1998 Act. However, a misapprehension, similar to that made by the Arbitrator, appears to have led Ms Evans’ counsel to treat the relevant sequelae as “consequential losses”. As is made clear in a number of decisions of the Commission, including Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4, a condition which results from an injury (consequential condition) is not an injury in terms of the Acts. Further, in the present circumstances, the Commission is not dealing with such “consequential condition” as considered in those cases. The sequelae following injury as diagnosed by Dr McKechnie are recognised in the WorkCover Guide and AMA 5 as matters which, if present upon examination, may be taken into account when permanent impairment is assessed by an AMS.
It is not entirely clear but it appears that the Arbitrator had adopted in the course of his Reasons the incorrect concept, suggested by the appellant’s counsel, that the sequelae following injury found by Dr McKechnie, being station and gait, etc, were “consequential injuries”, or that there was a need to determine that there had been “consequential injuries” relating to such pathology (at [51]).
The assessment of the degree of permanent impairment suffered by an injured worker is governed by the provisions of Pt 7 of the 1998 Act. Of particular relevance to the present facts is s 322(1) of that Act which provides:
“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.”
The relevant WorkCover Guides document is that concerning ‘Permanent Impairment’, third edition, 1 February 2009. Generally, that guide adopts the publication referred to as AMA 5.
In the present matter the Arbitrator has made relevant findings as to liability. The injuries as found were to Ms Evans’s cervical spine and lumbar spine. The WorkCover Guide, read with AMA 5, directs the AMS as to the appropriate means of assessment of whole person impairment. The evidence of Dr McKechnie suggests that the sequelae following injury included station and gait etc, and that Table 15-6 of AMA 5 was relevant to assessment. It is a matter for the AMS to determine the correctness or otherwise of Dr McKechnie’s approach. That decision will necessarily involve the AMS reaching a conclusion as to the correctness or otherwise of Dr McKechnie’s identification of those sequelae. Once all relevant matters have been taken into account and reference has been made to the guides, the AMS is to certify his assessment, which assessment shall be conclusively presumed to be correct: s 326 of the 1998 Act. It follows that the Arbitrator’s order [3(a)] in the Certificate of Determination (noted at [4] above) was made in error. The terms of the referral by the Registrar should properly have been to assess whole person impairment resulting from injury to the cervical spine and lumbar spine.
With respect to the Arbitrator’s order found in [3(c)] (noted at [4] above), it is not clear why such order was made. However, the Arbitrator stated (at [53] of Reasons) that “an Arbitrator will need to determine [Ms Evans’s entitlement] to weekly compensation”. That observation was made notwithstanding the fact that Ms Evans had discontinued her claim for weekly benefits. There was thus no dispute before the Arbitrator concerning such entitlement and, notwithstanding Ms Evans’s arguments that she had not abandoned her claim for such benefits and that the referral, having regard to the 2012 amendments to the Acts, constituted “a sensible approach”, the Arbitrator erred in so referring the matter to an AMS.
No challenge was made to the order concerning “whether back surgery was reasonably necessary as a result of injury” (order [3(b)]). Given my view concerning the erroneous referral of the other questions discussed above, and given the need to remit the matter for hearing afresh, I consider it appropriate in the circumstances that order 3, in its entirety, be revoked on this appeal.
The errors identified require that the Arbitrator’s findings and orders made must be revoked. I consider that by reason of all the circumstances discussed, including the apparent misapprehension by the Arbitrator and the parties noted above concerning any entitlement in respect of matters diagnosed by Dr McKechnie, and the omission to tender a complete copy of his report, it is appropriate that the matter be remitted back to another Arbitrator for hearing afresh. Appropriate orders appear below.

DECISION

The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 30 June 2013 are revoked.
The matter is remitted for hearing afresh by another Arbitrator.

COSTS

No order as to costs of the appeal.
The costs of the proceedings before Arbitrator Tanner are to abide the outcome of the determination following remitter.

Kevin O'Grady
Deputy President

15 November 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE