St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) v Duinker
[2007] NSWWCCPD 107
•3 May 2007
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR STATUS: Decision confirmed on Appeal: Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127; (2008) 6 DDCR 266 CITATION: St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) v Duinker [2007] NSWWCCPD 107 APPELLANT: St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) RESPONDENT: Nicole Duinker INSURER: Allianz Australia Workers Compensation (NSW) Limited FILE NUMBER: WCC11002-06 DATE OF ARBITRATOR’S DECISION: 20 November 2006 DATE OF APPEAL DECISION: 3 May 2007 SUBJECT MATTER OF DECISION: Whether the Arbitrator’s determination was against the weight of evidence; whether the Arbitrator considered all medical evidence before him; onus of proof. PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore HEARING: On the papers REPRESENTATION: Appellant: Sparke Helmore Respondent: Graham Jones ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 November 2006 is revoked and the following decision made in its place: “1. Award in favour of the Respondent, St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home). 2. No order as to costs.” No order as to costs of the appeal. BACKGROUND TO THE APPEAL
1.On 18 December 2006 St Vincent De Paul Society Aged & Special Services Limited
(Lewisham Nursing Home) (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 20 November 2006.
2.The Respondent to the appeal is Nicole Duinker (‘the Worker’).
3.The Worker is 43 years of age. She was educated in Germany up to the equivalent of Year 10. She worked in various jobs in Germany, Holland and Britain before arriving in Australia in December 1987.
4.In July 2002 the Worker commenced employment with the Appellant as a maintenance officer one day per week, a Monday, from 7:00am to 3:00pm. The Worker’s duties included cleaning and general maintenance work. On the other four days of the week, the Worker was employed by her husband, Seamus O’Toole, in his painting and decorating business.
5.The Worker alleged that on 8 September 2003, in the course of her employment with the Appellant, she attempted to move a heavy ‘otto’ bin. She suffered an injury to her right hip and groin. The incident was reported, a claim was made on the Appellant’s insurer, Allianz Workers Compensation (NSW) Limited (‘Allianz’) and the Worker was apparently off work for three to four days.
6.There was no dispute between the parties that the Worker suffered the hip injury alleged.
7.The Worker then claimed that as a result of her duties with the Appellant, she suffered an injury to her neck. The precise circumstances of this injury are not entirely clear (to which I will refer in more detail below), but it was not disputed that the Worker ceased employment with the Appellant following completion of her shift on Monday 29 March 2004.
8.On 18 June 2006 the Worker filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation for the period 4 April 2004 to 3 March 2005, medical, hospital or related expenses, and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) as a consequence of her neck injury.
9.In her application, the Worker nominated the date of injury as 29 March 2004. Under the heading “Injury Description” the Worker stated: “Injury to hip when moving ‘otto’ bin, gradual pain developing in neck”.
10.In a letter to Allianz dated 1 August 2006, the Worker’s solicitor advised of his intention to amend the Application at a forthcoming Teleconference to claim as follows:
“Date of Injury: The nature and conditions of the Applicant’s employment by the Respondent up to 29/3/04.
Injury Description: Injury to right hip on 8/9/03 when moving an ‘otto’ bin, gradual onset of pain developing in neck, upper back and shoulders, also resulting in psychiatric injury.”
11.The matter was listed for a conciliation/arbitration hearing on 30 October 2006. On that occasion, the Worker gave extensive oral evidence, and both legal representatives made oral submissions which are recorded in the transcript. The thrust of the Worker’s oral evidence was to the effect that she first noticed symptoms in her neck following completion of her work with the Appellant on 29 March 2004, and that on the following Sunday, she awoke with severe neck and left arm pain.
12.The Arbitrator noted that the principal issue in dispute was as to whether the Worker suffered an injury to her neck “… that arose out of or in the course of her employment with the Respondent”.
13.The Arbitrator found in favour of the Worker, and it is against that decision that the Appellant now seeks leave to appeal.
THE DECISION UNDER REVIEW
14.The ‘Certificate of Determination’ dated 20 November 2006 with an accompanying ‘Statement of Reasons’ records the Arbitrator’s determination as follows:
“1.That the Respondent pay the Applicant weekly compensation from 4 April 2004 to 3 March 2005 at the rate of $125.54 pursuant to section 40 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
LEAVE TO APPEAL
15.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
16.The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
17.Leave to appeal is granted.
ON THE PAPERS REVIEW
18.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.”
19.In its appeal application as filed on 18 December 2006, the Appellant submitted that “… The issues in dispute in this matter, both factual and medical, are such that this is not a matter which can be determined ‘on the papers’.”
20.The Appellant also reserved its right to make further submissions once a transcript of the hearing was available. The Commission file indicates that a copy of the transcript was forwarded to the Appellant’s solicitors on 4 January 2007. The Commission invited the Appellant to lodge any final grounds of appeal or submissions it wished to make. No further submissions were filed by the Appellant.
21.On 31 January 2007, the Worker filed a ‘Notice of Opposition to Appeal’ indicating, inter alia, that the Worker “… is content for this matter to be determined ‘on the papers’.”
22.The Appellant has prepared detailed submissions on appeal, and the Worker has similarly responded. I am not persuaded that the issues raised are of such difficulty or complexity that an oral hearing is required. Having regard to Practice Directions Numbers 1 and 6, all the documents that are before me, the transcript, and both parties’ submissions, 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 ISSUES IN DISPUTE
23.The Appellant has cited three grounds of appeal as follows:
“1.That the decision of the Arbitrator … is contrary to the weight of the medical evidence before him.
2.That the Arbitrator … has failed to afford the Appellant procedural fairness by failing to consider all of the medical evidence before him.
3.That the Arbitrator’s decision fails to adequately address how the Applicant discharged the onus of proof in the circumstances.”
24.On 31 January 2007 the Worker filed a detailed ‘Notice of Opposition to Appeal’. Briefly, the Worker addressed seriatim the submissions made by the Appellant. Briefly, it is the Worker’s assertion that the Arbitrator did not need to decide the “alternative” propositions as to cause of injury put forward by the Worker since “… the matter was decided by the Arbitrator finding injury due to the work performed on 29/3/04”. It is the Worker’s submission that the Arbitrator’s determination was open to him on the evidence before him and that the Arbitrator was “… not required to address each and every inconsistency in history taking.” Detailed references to the Worker’s evidence in the transcript is made in those submissions. The Worker further submits: “The Worker did not suffer a frank injury on 29/3/04. She suffered the onset of left shoulder and neck symptoms which she deposed continued and worsened some days later. Given Mr Neville’s opinion [the physiotherapist] … and her evidence in respect of seeing Dr van Gelder (T page 14.57 – 15.10 and page 20.10 – 20.24), it was not unreasonable for the Worker to delay in making her claim”.
25.In summary, the Worker submits that there were no contrary opinions from her treating specialists and that she has discharged the onus of proof. The Worker submits that “having obtained an opinion from Dr Beer the Worker could not afford the proposed fee for a report from Dr van Gelder. There is no adverse inference available against the Worker in those circumstances.”
THE ARBITRATOR’S DETERMINATION & REASONS
26.The Arbitrator prepared a brief three page ‘Statement of Reasons’. His findings may be summarised as follows, adopting the headings used by the Arbitrator:
“Background
·On 8 September 2003 Ms Duinker suffered an injury to her hip while moving an ‘otto’ bin. She reported the incident to her employer the same day and had 3 – 4 days off work.
·Ms Duinker claims that on Monday 29 March 2004 … she experienced symptoms in her neck and shoulders. She claims that she woke on [Sunday] 4 April 2004 with considerably worse symptoms in these areas.
·Ms Duinker claims weekly payments of compensation from 4 April 2004 to 3 March 2005 … the insurer disputes the claims in respect of the neck injury.
·The parties agreed there was no dispute as to the hip injury.
Injury
Did Ms Duinker receive an injury to her neck arising out of or in the course of employment with the Respondent?
·Ms Duinker outlines in her statement continuous symptoms in the neck and shoulders from 29 March 2004 onwards. The Respondent submits that there is insufficient evidence for her to discharge the onus of proof that the injury occurred while working for the Respondent. The Respondent submits that the work with Mr O’Toole in the days following 29 March 2004 up to 4 April 2004 is the more likely cause of injury. Ms Duinker gave oral evidence at the arbitration hearing as to the duties she performed with her husband’s company … largely comprising clerical duties which did not aggravate the neck injury. I found Ms Duinker to be a direct and truthful witness and I accept the account she gives in her written and oral statement as to the circumstances of injury. Her account is also consistent with the medical evidence overall.
·Dr Beer in his report dated 2 February 2005 is consistent with Ms Duinker’s account, and ascribes the injury to the duties with the Respondent. Dr Bodel for the Respondent is also consistent with her account in the history taken but says ‘she gives no history of any specific event which led to the onset of her symptoms in the neck and left arm and at this stage there is in my view no definite causal link between the pathology and her work at CFTTB Lewisham Nursing Home’. This is also consistent with Ms Duinker’s account.
·The account of Ms Duinker as to the development of the symptoms and the nature of her duties with the Respondent … is sufficient in conjunction with the medical evidence available to satisfy me to the required level that the injury to the neck arose out of or in the course of the employment with the Respondent. Where Dr Beer differs from Dr Bodel I prefer Dr Beer because of the correlation with the other evidence.
Substantial Contributing Factor
Was Ms Duinker’s employment a substantial contributing factor to the injury?
·I have already preferred Ms Duinker’s medical evidence on the issue of injury. Referring to the relevant examples in s.9A(2) of the Act, there is no evidence of a previous injury or pre-existing degenerative disease. There was concurrent employment, but the evidence is that there was no injury arising from that. The only apparent cause of the neck pathology is Ms Duinker’s employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury.”
27.As to the issue of capacity, the Arbitrator noted that it was agreed between the parties that if the Worker was successful, she was entitled to a weekly amount for the period claimed in the sum of $125.54. The Arbitrator also accepted the claim for medical expenses relative to the “neck injury”.
28.Under the heading “Evidence”, the Arbitrator then listed the documents “taken into account” including those listed in the Worker’s Application and in the Appellant’s ‘Reply’ together with a number of other documents.
29.The Arbitrator’s “Summary” was in the following terms:
“In summary the resolution of the issues in dispute is as follows:
·Between May 2004 and 9 May 2005, Ms Duinker received an injury to her neck arising out of or in the course of her employment with the Respondent.
·Employment with the Respondent was a substantial contributing factor to the injury.
·Ms Duinker was partially incapacitated as a result of her injury on 29 March 2004 from 4 April 2004 to 3 March 2005.
·Ms Duinker is therefore entitled to weekly payments for the period of partial incapacity for work from 4 April 2004 to 3 March 2005.”
30.The Arbitrator’s “Summary” is confusing to say the least. It seems his reference to the Worker suffering an injury “between May 2004 and 9 May 2005” is a clerical error, and bears no relation to the substance of his other findings nor indeed to the pleadings. The Arbitrator eventually refers to the “… injury on 29 March 2004 …”.
31.Earlier in paragraph 9 of his ‘Statement of Reasons’, the Arbitrator concluded that “The only apparent cause of the neck pathology is Ms Duinker’s employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury.”
THE SUBMISSIONS, EVIDENCE AND FINDINGS
Was the Arbitrator’s Determination Contrary to the Weight of the Medical Evidence Before Him?
32.The Appellant submits that:
“The basis of the Applicant’s case is that as a result of an earlier injury to her hip … on 23 September 2003, the effects of this injury subsequently led to the development of pathology in the cervical spine on or about the period 29 March 2004 and 4 April 2004.”
33.This was indeed the basis of the Worker’s claim as set out in her Application and as amended by letter from the Worker’s solicitor to Allianz to which I have referred previously.
34.However, this was not the case presented in the Worker’s oral evidence as examination of the transcript reveals.
35.It is thus appropriate at this stage to look at that evidence. The Worker was cross examined by the legal representative for the Appellant commencing at page 4 of the transcript. She described her duties on the one day per week she was employed by the Appellant, and gave evidence as to the nature of her duties in her employment with her husband. She gave evidence that she had been working with her husband for some 15 years, and over that period of time was engaged in such tasks as sanding and glossing of doors and windows in her capacity as a “painter’s labourer class 3.” She stated that over the 15 years she would have performed work on ceilings and used ladders and from time to time would have performed scraping and sand papering work on walls and ceilings.
36.The Worker denied that her employment with her husband was heavier than the work she performed with the Appellant, and at pages 11 – 12 of the transcript described the events between Monday 29 March 2004 and Sunday 4 April 2004. The Worker claimed that on Sunday 4 April 2004 she awoke in severe pain and could not move. She said she had severe pain down her left arm. She stated that on Monday 29 March 2004 she did “normal duties” with the Appellant and that “I came home with pains in my shoulders, like in my left shoulder and my neck” (page 12 transcript).
37.The Worker claimed that in the week following 29 March 2004, she did mainly clerical work for her husband and that:
“… There was no activity where I would actually say anything could have aggravated it, but during the course of the week the pain actually became worse … in my shoulder and neck.” (Page 12 transcript).
38.The following exchange then took place:
“Q.When did you first notice the pain coming on?
A.On Monday, probably after lunchtime.
Q.On the Monday, the 29th?
A.Yeah.
Q.Not prior? Not at any time?
A.Only that you have tenseness[sic], but I didn’t actually connect that with anything.”
39.The Worker was then asked questions about her treatment subsequent to 4th April 2004, and agreed that she had first seen Professor James van Gelder on 11 May 2004. She was asked: “Do you recall providing a history to Professor van Gelder on 11 May when you first saw him about what was wrong with your neck?” The Worker replied “Yes. Well, I mean, he would have asked me, yeah.” This exchange then took place [pp14 – 15 of the transcript]:
“Q.He would have asked you? And you gave a history to him to the best of your recollection?
A.Yes.
Q.…did you tell the doctor about the onset of symptoms?
A.He only asked me, like, what happened, and I told him what happened on the Sunday morning.
Q.Okay. And did you tell him anything else about how you think you came to hurt your neck?
A.No, because I still wasn’t clear how I hurt my neck.”
40.The evidence revealed that the Worker had been referred to Dr Sachdev and Dr Bruce in relation to her hip injury. The Appellant’s legal representative attempted to ask questions as to whether or not those doctors had been informed of the Worker’s neck condition. Those questions were the subject of objection. In response to these objections, the Appellant’s legal representative said this [page 17 transcript]:
“The whole premise of the Applicant’s case here is that she is now incapacitated primarily as a result of her neck injury and that the neck injury is as a result of the initial hip injury in September 2003.”
The Worker’s counsel replied: “Well, it’s part of it, that’s right.”
41.Ultimately, the Worker’s evidence was to the effect that she consulted Doctors Sachdev and Bruce principally about her hip but that she would have “mentioned” her neck problem “… because I cannot lie on the examining table without assistance or without rolling to a side before getting up.”
42.At pages 19 – 20, this exchange took place:
“Q.…was there anything that you were performing, any activities in your view that you were performing on 29 March 2004 that you think caused problems with your hip? [sic – neck].
A.There was not one particular incident or performance but it aggravated throughout the day, and by lunchtime I could feel the pain in my shoulder radiating, like, from the neck to my shoulder.
Q.But if that’s the case, then, how come you didn’t tell Professor van Gelder when you first saw him? Why didn’t you mention that to him when you first saw him in May 2004? …
A.Because I did not connect it to a neck injury.”
43.At page 20 of the transcript, the Worker was asked:
Q.“…on 29 March 2004 your hip had largely resolved?
A.I would say that you start to get used to how to move to avoid the pain. So I learned not to bend, twist the hip, and walk with your feet straight because it will aggravate it if I have the foot inwards.”
44.What is clear from this evidence is that, despite the Worker’s counsel’s assertion that the proposition that the neck injury was as a result of the initial hip injury was “part of it” [the claim] and indeed the pleadings, the Worker’s evidence was quite clear that she developed symptoms in her neck and shoulders by around lunchtime on 29 March 2004. She specifically denied that she had had such symptoms prior to that date, although she had noted some “tenseness” on some prior occasion, but without specific detail as to the nature of this “tenseness” or its duration.
45.The Worker’s oral evidence was consistent with a statement made by Ms Christine Popovich admitted into evidence in the Worker’s case. Ms Popovich stated that she had seen the Worker in April 2004 and said:
“I asked Nicole what was wrong with her neck and she told me that since finishing work at L.A.C on the previous Monday, she had been experiencing pains in her neck and shoulders all week and suddenly on Sunday she found that she could no move.”
46.This account is also consistent with the Worker’s statements to Professor van Gelder and Dr Bodel.
47.Some brief reports from Professor van Gelder were included in clinical notes produced by Campsie Medical Centre where the Worker had initially consulted a Dr Ibrahim. In a report to Dr Ibrahim dated 16 May 2004, Professor van Gelder said this:
“Thank you for referring Ms Duinker who was seen on 11 May 2004. She was complaining of four weeks of pain and numbness radiating from her neck into her left arm. For the first week she had numbness in her left arm … the symptoms improved with physiotherapy but are ongoing. She works as a painter’s assistant with her husband. Her CT Scan of the cervical spine shows a large left posterolateral left C6/7 intervertebral disc protrusion with displacement of the spinal cord and likely impingement on the C7 and C8 nerve roots … I have referred her for an MRI Scan of the cervical spine.”
48.Dr James Bodel saw the Worker at the request of the Appellant on 22 July 2004. Dr Bodel recorded this history:
“Ms Duinker indicates that she developed a soreness in the shoulders at work on Monday 29.3.2004. She cannot recall any particular accident or injury that occurred during the course of that day. She states that she worked three of the next four days of that week at another employment but she reports that that particular week was fairly light work and did not involve any lifting. Her symptoms of the neck deteriorated a little over the week but on the Sunday morning 4.04.2004, she woke in severe pain and could not move her neck. She had severe pain and stiffness in the neck and numbness radiating down the left arm.”
49.This evidence however is in stark contrast to other evidence to which I will now refer.
50.The Worker provided two statements which were admitted into evidence. In a detailed statement dated 24 May 2006, the Worker stated that, following her hip injury on 8 September 2003, “… at Lewisham Nursing Home I changed the way I lifted from then on in order to favour my right hip by using my back and neck when lifting.” She then stated that her contract with the Appellant was renewed on 9 December 2003 and that:
“I continued to perform my duties for another three months. In this time I noticed that my symptoms were increasing around my neck and shoulders when performing my duties. On 29 March 2004 I performed my normal duties at Lewisham Nursing Home. I was noticing that I was experiencing an ache in my left shoulder, across my neck and over to my right shoulder and I ceased work.”
51.In a subsequent statement dated 8 September 2006, the Worker again referred to her injury to her hip on 8 September 2003 and stated that:
“After 14 March 2004 I took the next week off work as I had started getting symptoms in my left shoulder, across my neck and over to my right shoulder whilst performing my duties at Lewisham Nursing Home. I had not said anything to Lewisham Nursing Home and thought it would ‘simply get better’. On 29 March 2004, whilst performing my duties at Lewisham Nursing Home, I noticed an ache in my left shoulder, across my neck and over to my right shoulder and I ceased work.”
52.The Worker consulted Dr John Beer, Orthopaedic Surgeon, at the request of her solicitors. Dr Beer prepared a report dated 2 February 2005 wherein he noticed this history:
“On 29 March 2004 the patient relates that she was having continuing disability with ache in her left shoulder, across the neck to the right shoulder region. This problem she feels commenced as a result of an injury to the right hip region in September 2003 … However she started to lift in a certain manner after this injury, favouring her right hip region, lifting more with her back and neck region she states when carrying out her duties.
She began to notice increasing symptoms around her neck and shoulders when carrying out her duties. By 29 March 2004 she stopped work because of the pain in the shoulder and neck region.”
53.Dr Beer concluded that:
“I feel this worker has sustained a cervical C6/7 disc lesion consistent with the nature of the duties she was carrying out at her place of employment. These symptoms were noticed in late 2003 after having had some disability with the right hip region following moving an otto bin. I feel this is consistent as described on repeated questioning today that she has incurred this degree of disc lesion in the cervical spine. The work she does with her husband on other days of the week is only light duties but much heavier work was done with St Vincent De Paul and in the manner of particular duties, particularly cleaning and emptying rubbish accordingly.”
54.The notes produced by Dr Ibrahim from the Campsie Medical Centre confirmed that the Worker consulted him on 20 April 2004 complaining of neck pain radiating down to the left elbow. An entry in the notes on 22 April 2004 confirms that the Worker was seen by a physiotherapist, who, “… told her neck could be due to the pain in her R hip. Request x-rays R hip.”
55.The Worker was also seen by Dr John O’Neill, Consultant Neurologist, at the request of the Appellant on 18 August 2006. Dr O’Neill prepared a report of the same date and obtained this history:
“Mrs Duinker said that after the aforementioned injury [hip injury on 8 September 2003] she began to alter the way she lifted. She said she would tend to rely more on her arms and shoulders rather than assisting with the hips. She thought it was because of this she ultimately began to experience mild pain over the back of one or other shoulder, usually the left. On 29.3.2004 she had a normal day at work at Lewisham Aged Care but over the course of that day the pain over the back of her left shoulder was particularly noticeable. She actually ‘didn’t think too much of it at the time’.
Over the next two days she was involved in light duties, cleaning her husband’s brushes as he had finished up his job and they were preparing for the ensuing school holidays.
On the morning of 4.4.2004 Mrs Duinker woke with severe pain from the left side of the neck radiating out over the back of the left shoulder and down the left arm into her hand.”
56.Dr O’Neill noted that an MRI Scan on 24 May 2004 reported the presence of a large central to left posterior-lateral disc protrusion at C6/7 with encroachment on the cord and left C7 nerve root. He then concluded as follows:
“As a result of the right hip injury on 8.9.2003 Mrs Duinker said she changed the way in which she undertook lifting, using more force with her shoulders and arms. At some stage she said she began to notice occasional pain over the back of one or other shoulder, usually the left. She said pain over the back of the left shoulder was more noticeable on 29.3.2004, in effect the last day she worked … Having said that, she told me she ‘did not think too much of it at the time’. She was able to work for her husband over the next two days, performing mainly light work including cleaning brushes. She was able to carry on with preparation for the ensuing school holidays. She woke from sleep with the severe left neck and left radicular arm pain on the morning of 4.4.2004.
Radiological studies showed not only the causative disc lesion at C6-7 but also more widespread degenerative changes involving the mid cervical spine.
It is not uncommon for patients with constitutional degenerative disease of the cervical spine to wake with an acute disc prolapse, forces somehow changing during sleep.
There was no specific incident at work on 29.3.2004 which triggered the apparent increase in pain over the back of the left shoulder. Mrs Duinker was able to continue with day to day functions from that time until 4.4.2004. I am not convinced that the C6/7 disc prolapse occurred as a consequence of Mrs Duinker’s work on 29.3.2004.”
57.No reference is made by the Arbitrator in his ‘Statement of Reasons’ to the report or opinion of Dr O’Neill.
58.There are two other pieces of evidence worth mentioning at this stage. Included in the Appellant’s ‘Reply’ is a copy of a medical certificate from Dr Ibrahim dated 12 July 2004. Under the heading “How the Injury Occurred” Dr Ibrahim stated: “Maintenance work, heavy lifting”. When asked whether the Worker’s employment was a substantial contributing factor to the injury, Dr Ibrahim replied: “unknown”. In subsequent certificates annexed to the Worker’s application, Dr Ibrahim opined that the injury occurred as a result of “heavy lifting”.
59.The Worker also included a certificate from Professor van Gelder dated 29 July 2004. In that Certificate, the date of injury was recorded as 29 March 2004 with the “onset of complaint” also on 29 March 2004. In response to the question “Cause of injury as stated to me by this worker?” the Professor wrote, not very legibly, what I interpret as follows: “Symptoms came on when doing [stress? strenuous] work.” Professor van Gelder concluded that the Worker’s employment was a substantial contributing factor to her injury. It is not clear from this certificate nor indeed from Professor van Gelder’s earlier report to which I have referred as to which ‘employment’ he was referring.
60.The Arbitrator made reference to “Dr Bodel” but did not identify his reports. Dr Bodel in fact prepared two reports, the first of which I have already discussed. In a subsequent report dated 28 August 2006, Dr Bodel recorded this history:
“She states that on 29 March 2004 she developed a soreness in the neck and shoulder girdle region. This was principally on the left hand side and she associated that with the nature and conditions of work on that day. She also asserts that over a period of time she lifted differently because of the hip pain and that had put extra strain on the neck and shoulder. There was, however, no particular accident or injury at the work place on 29 March 2004.”
61.Dr Bodel concluded that, in the absence of any specific accident or injury on 29 March 2004, he could find “… no definite causal link between the nature and conditions of her work at the Lewisham Nursing Home and the pathology in the right hip or the pathology in the neck and left arm”.
In answer to the question:
“Do you accept that the Applicant’s allegation that as a result of overcompensating for her hip injury sustained in September 2003, she sustained an injury to the cervical spine as a result of the nature and conditions of employment with the Respondent?”
Dr Bodel replied: “That is an unlikely scenario base [sic] on the history given. I see no direct causal link between the nature and conditions of work at either place and the development of the neck and left arm pain.”
62.Dr Bodel had noted that the Worker had developed sudden pain in the neck and down the left arm on Sunday 4 April 2004 “… and this came on without additional accident or injury”.
63.In summary then, it must be said that there are, quite frankly, markedly conflicting statements as to the history of the development of neck and arm symptoms. The thrust of the Worker’s written statements and her history to Dr Beer is that as a consequence of injuring her hip, she placed increasing strain on her neck and shoulders from carrying out her duties both with the Appellant and in her husband’s company, and that these symptoms became particularly marked on 29 March 2004. However, it is not until almost a week later, on 4 April 2004, (or Sunday 5 April 2004) when her symptoms became severe. Yet in her oral evidence, the Worker was adamant that her symptoms arose at work with the Appellant on 29 March 2004. This, as I have said, is consistent with the account of Ms Popovich, and with the initial histories to Professor van Gelder and Dr Bodel.
64.The question to consider then is how to reconcile the Arbitrator’s findings and reasons with this conflicting evidence. The Arbitrator stated at paragraph 6 of his ‘Statement of Reasons’: “Ms Duinker outlines in her statement continuous symptoms in the neck and shoulder from 29 March 2004 onwards”. That is not an accurate summation of the Worker’s statements. The Arbitrator went on to state “I found Ms Duinker to be a direct and truthful witness and I accept the account she gives in her written and oral statements as to the circumstances of injury. Her account is also consistent with the medical evidence overall.”
65.The problem with this statement of course is that the Worker’s accounts in her written and oral evidence were inconsistent and indeed, inconsistent with much of the medical evidence. It is not clear on what basis the Arbitrator claims that the Worker’s “account” is consistent “… with the medical evidence overall.” As I said earlier, no reference is made by the Arbitrator to the opinion of Dr O’Neill and the Arbitrator simply concluded: “Where Dr Beer differs from Dr Bodel [without identifying the particular report of Dr Bodel to which he refers] I prefer Dr Beer because of the correlation with the other evidence.” What that “other evidence” is, was not identified by the Arbitrator. Earlier he stated (paragraph 7):
“The account of Ms Duinker as to the development of the symptoms and the nature of her duties with the Respondent … is sufficient in conjunction with the medical evidence available to satisfy me to the required level that the injury to the neck arose out of or in the course of the employment with the Respondent.”
66.Again, the “account of Ms Duinker” was conflicting as was “the medical evidence available” as to the cause of the Worker’s undoubted cervical disc lesion. It is difficult to fathom how the Arbitrator concluded that this conflicting material was “sufficient” to enable him to conclude that the Worker suffered an injury to her neck arising out of or in the course of her employment with the Respondent.
67.Having indicated that he accepted the opinion of Dr Beer “… because of the correlation with the other evidence”, (again, not identified) the Arbitrator went on to conclude that (paragraph 9) “The only apparent cause of the neck pathology is Ms Duinker’s employment with the Respondent on 29 March 2004, which I find was as substantial contributing factor to the neck injury.”
68.That was clearly not the opinion of Dr Beer, and it completely ignores the opinion of Dr O’Neill as to the possible cause of the neck pathology. Contrary to the Arbitrator’s assertion that “… there is no evidence of previous injury or pre-existing degenerative disease”, Dr O’Neill, a Neurologist, noted that the radiological investigations showed “… not only the causative disc lesion at C6/7 but also more widespread degenerative changes involving the mid cervical spine.” As I said earlier, Dr O’Neill concluded that “it is not uncommon for patients with constitutional degenerative disease of the cervical spine to wake with an acute disc prolapse, forces somehow changing during sleep.”
69.Thus the Arbitrator’s statement that “the only (my emphasis) apparent cause of the neck pathology …” was as a result of work performed on 29 March 2004 was incorrect.
70.The Arbitrator’s acceptance of the proposition that work performed on 29 March 2004 was “the only apparent cause” of the Worker’s neck injury cannot be reconciled with his acceptance of the medical opinion of Dr Beer. If, on my review of the Arbitrator’s determination, I was to then in effect disregard the opinion of Dr Beer, what other evidence is available to support the Arbitrator’s conclusion that the Worker’s employment with the Appellant on 29 March 2004 was a substantial contributing factor to her injury and indeed the only cause of that injury?
71.The answer must be virtually none. The statement of Ms Popovich is consistent with the Worker’s oral evidence to the effect that symptoms developed on 29 March 2004. Whilst Dr Bodel initially obtained a similar history, he concluded “… there is in my view no definite causal link between the pathology and her work [with the Appellant].” Whilst Professor van Gelder’s history of four weeks of symptoms is consistent with the Worker’s oral evidence, the only reference in Professor van Gelder’s report of 16 May 2004 to either causation or employment was the simple statement that “she works as a painter’s assistant with her husband”. In a subsequent report to Dr Ibrahim dated 30 July 2004, Professor van Gelder noted that the Worker was “gradually improving” and went on to state: “Her workers compensation claim is plausible. I have assisted her to start the paper work”. Again, it is not clear to what employment Professor van Gelder refers although as I said earlier, in a medical certificate dated 29 July 2004, Professor van Gelder noted the date of injury as 29 March 2004. However, even if I were to accept that certificate, the difficulty then is with the Professor’s reference to the cause of injury as “… doing [stress or strenuous] work.” There was simply no evidence from the Worker that she performed any particularly stressful or strenuous work activities on 29 March 2004 with the Appellant although in her oral evidence she had indicated that on that day she was (page 11 transcript) “… setting up of a boardroom, which involved, like, tables and things, but that was, like, really, normal, could have been as normal duties”.
72.Was there sufficient evidence to conclude that the proximate cause of the Worker’s neck injury was as a result of work performed with the Appellant on 29 March 2004? In my view, there was not. Dr Beer thought that the injury resulted in an alteration in the manner of performing her duties consequent upon the hip injury, in other words, the ‘nature and conditions’ of her employment with the Appellant subsequent to the hip injury. It must also be said that that apparent alteration in the manner of performing duties, i.e., “… favouring her right hip region” … must have also occurred whilst she was carrying out her duties on the other four days of the week in her husband’s business. Doctor’s O’Neill and Bodel found no causal link or nexus between either employment with the Appellant on 29 March 2004 or as a consequence of altered physical practices following the hip injury in September 2003.
73.Although it might be inferred from the reports of Professor van Gelder, as the Worker’s counsel submitted to the Arbitrator, that the Professor accepted that work performed on 29 March 2004 was the cause of the Worker’s injury, and that “her workers compensation claim is plausible”, the difficulty with that proposition is the Professor’s reference in the medical certificate to stressful or strenuous work. That was not the evidence of the Worker, and I do not think that it can be inferred that just because the Worker noted an onset of symptoms of her neck and shoulders on 29 March 2004 that those symptoms provided a sufficient causal nexus between the employment and the injury.
74.In other words, it is not sufficient for a Worker to simply state that symptoms arose on a particular date as grounding a proximate cause of the injury, particularly in circumstances where expert medical opinion provides alternative propositions.
75.This was the essential thrust of the Worker’s submissions to the Arbitrator. It was submitted on her behalf that notwithstanding her failure to give “… a history to each of the doctors about the specific matters that resulted in her painful symptoms on 29 March 2004 …” the Worker consistently indicated that there was no specific incident and that she merely had an onset of symptoms on that date. It was submitted that it was to the Worker’s credit that she did not attempt to “gild the lily” by perhaps attempting to assert that she lifted a particular item or performed some other activity that brought on symptoms. That may well be so, but the ultimate task of the Arbitrator was to determine whether work performed on 29 March 2004 (leaving aside for the moment the question of the hip injury) resulted in the injury to her neck. It was the Appellant’s case that there was simply insufficient evidence for this to be established given the ‘alternative’ proposition put forward by Dr Beer, and the opinions of Doctors Bodel and O’Neill.
76.In all the circumstances, I accept the Appellant’s submission that the Arbitrator’s determination that “the only apparent cause of the neck pathology is Ms Duinker’s employment with the Respondent on 29 March 2004, which I find was a substantial contributing factor to the neck injury” was contrary to the weight of all the evidence before him.
77.The Worker’s submissions before the Arbitrator and indeed on appeal focus on the argument that the Worker’s case was run on two bases firstly, that work performed with the Appellant on 29 March 2004 caused the neck injury or, additionally or in the alternative, the prior hip injury and subsequent alteration in the manner of performing certain tasks was responsible for the C6/7 disc lesion. It is not uncommon in this jurisdiction for alternative propositions to be put forward as the cause or basis of a worker’s injury. Nonetheless, there must be evidence capable of supporting those propositions. The Arbitrator’s acceptance that work performed on 29 March 2004 was causative of the Worker’s injury was not only against the weight of evidence, but failed to address unexplained inconsistencies in both the Worker’s oral and written evidence and some of her medical evidence, in particular, Dr Beer. Was there sufficient evidence for the alternative proposition? Again, in my view, there was a deficiency in the evidence on this point, it being only Dr Beer who opined that the hip injury and subsequent altered work practices were responsible for the Worker’s condition. There was no clear or objective clinical basis for this opinion and it was isolated. Indeed, the Worker’s counsel in submissions before the Arbitrator (page 29 transcript) conceded that the “secondary” proposition as it was described could not be sustained. Referring to the consequences of the hip injury, Counsel stated:
“…whilst as a specific cause of the Applicant’s onset of symptoms in her neck, I can’t point to it being the cause of it, clearly, if one is protecting one part of the anatomy and tending to apply greater effort in relation to another part … it is … a not unreasonable inference to draw that that predisposed her to the sort of injury, we say, that she suffered on or about 29 March 2004 because of these other limitations, and I think that’s the extent of that component of the case.”
78.This submission was in effect supplementary to the thrust of the Worker’s submissions which were to the effect that work performed on 29 March 2004 was causative of the Worker’s condition. It was in effect a concession that Dr Beer was ‘out on a limb’ with his views on causation. There was no other medical evidence to support the proposition that the hip injury and its consequences in some way “predisposed” the Worker to the injury it was claimed she sustained on 29 March 2004.
The Procedural Fairness Issue and the Medical Evidence.
79.I have already canvassed this issue to some extent in the preceding paragraphs. Briefly, the Appellant submits that the Arbitrator denied it procedural fairness by failing to consider all the medical evidence relied upon by the Respondent, in particular, the report of Dr O’Neill to which I have referred earlier, the medical certificate of Dr Ibrahim and the radiological evidence. The Appellant submits that: “Contrary to the statement of [the Arbitrator], there was in fact ample medical and radiological evidence of degenerative disease throughout the Applicant’s neck, and submits that the statement made by the [Arbitrator] is further evidence of the fact that he has failed to consider the report of Dr O’Neill.”
80.For the reasons stated in the preceding paragraphs, that is a compelling submission. There was no doubt that the Worker suffered a significant C6/7 rupture, but there was also no doubt, looking at all of the radiological material, that there was some pre-existing, if asymptomatic, constitutional or degenerative disease of the cervical spine.
81.The Appellant also submits that, noting that the Worker had consulted Professor van Gelder, as well as Dr Sachdev and Dr Bruce, (the latter two in relation to a hip injury) that “conspicuously absent from the Applicant’s medical evidence was a report from any of these specialists who examined her in the months after 29 March 2004 attributing the Applicant’s injury to her employment with the Respondent.”
82.Again, that is essentially true, although as I said earlier, it may be possible to infer from Professor van Gelder’s certificate that events on 29 March 2004 were causative of the Worker’s injury. However, that opinion is based on the assumption that stressful or strenuous work was performed on that occasion, contrary to the Worker’s assertions in her oral evidence.
83.I am of the view that the Arbitrator’s ‘Statement of Reasons’ does demonstrate that he failed to consider all the medical evidence before him in particular, the omission of any reference whatsoever to the opinion of Dr O’Neill, notwithstanding detailed submissions made by the Appellant’s legal representative before the Arbitrator as to the contents of that report. I see this not so much as an issue of ‘procedural fairness’ but rather an error by the Arbitrator in his apparent failure to have regard in particular to the opinion of Dr O’Neill and indeed to all the radiological material before him.
The Onus of Proof Issue
84.Again, this issue to some extent has been canvassed in the preceding paragraphs.
85.Much of the Appellant’s submissions on this issue are duplicated.
86.Many of the Appellant’s submissions focus on the absence of medical evidence “… establishing a clear casual nexus between the hip injury and neck pathology …”. This, the Appellant contends, is fatal to the Worker’s case. However, as I have said, that was simply one proposition put by the Worker as to the cause of her neck condition. I accept the Appellant’s submission insofar as it seems clear that the Arbitrator’s acceptance of the opinion of Dr Beer was contrary to his ultimate finding that work performed on 29 March 2004 was causative of the Worker’s injury. Indeed, as the Appellant points out, the Arbitrator’s decision “… does not address the contradiction between the Applicant’s various accounts of the circumstances surrounding her injury, and the opinion of Dr Beer …”
87.The Appellant makes a number of other submissions under this heading to which I now turn. Firstly, the Appellant submits that:
“The only opinion which would appear to make some attempt to address the issue of liability is that of Associate Professor van Gelder who noted on 16 May 2004 ‘she works as a painter’s assistant with her husband’. One would certainly expect that if the Applicant genuinely considered that her employment with the Respondent had caused her injury, this would be a fact that she would have mentioned to her treating specialists.”
88.This was explained by the Worker in her oral evidence to the effect that, at the time she saw Professor van Gelder, she herself was not aware of the cause of her neck condition. Nonetheless, there is some validity in this submission since it would seem that by July 2004, when Professor van Gelder issued the medical certificate, the Worker apparently had some idea as to what, in her view, had caused her injury. The report of Professor van Gelder dated 30 July 2004 does not provide any great assistance. He stated there that “the workers compensation claim is plausible. I have assisted her to start the paper work.” There is nothing in that report from Professor van Gelder to indicate what the “workers compensation claim” was, particularly when the only reference to her employment in the three short reports from Professor van Gelder in evidence was the statement in this first report of 16 May 2004 that “she works as a painters assistant with her husband”.
89.Counsel for the Worker submitted that the clear inference from Professor van Gelder’s later report was that the claim to which he referred was that made against the Appellant, and that no other workers compensation claim was in evidence. That is a possible inference, however there was no evidence on this issue either in the Worker’s statements or orally. One is left to speculate precisely what Professor van Gelder considered to be the cause of the Worker’s injury. If, as I have said, it may be inferred from his certificate that it was stressful or strenuous work on 29 March 2004, again, that was not the Worker’s evidence.
90.It is unfortunate that a more detailed report (as opposed to three brief reports addressed to the Worker’s GP) was not obtained from Professor van Gelder which may have thrown some light on his view as to the cause of the Worker’s injury rather than the parties being left to speculate or infer the Professor’s views as to causation. The Worker’s counsel submitted that this was because the cost of such a report was prohibitive. Whilst I do not cavil with this submission, the onus was on the Appellant to prove her case.
91.The Appellant further submits that:
“… The Applicant has at no stage provided any evidence as to why she did not make a claim for her injury with the Respondent … until 17 July 2004 (a period of three and a half months) before completing a claim form … clearly in view of her previous hip claim, she was aware of her rights and obligations in respect of making a claim, and her entitlements to weekly benefits … a WorkCover medical certificate was not obtained by the Applicant in respect of her neck injury until 7 July 2004.The medical certificates issued prior to this by Dr Ibrahim dated 20 April 2004, 27 April 2004 and 29 June 2004 all certify that the Applicant was suffering from a ‘medical condition’ and was unfit for work. There was no mention of her incapacity for work being related to her employment with the Respondent.”
92.In a certificate dated 20 April 2004, Dr Cheung from the Campsie Medical Centre stated that the Worker was suffering from “painful and stiff neck”. The Worker was certified unfit for work from 20 to 30 April 2004. In a certificate dated 27 April 2004 issued by Dr Ibrahim from the same practice, he opined that the Worker was suffering from “medical condition”. The same statement was made in a certificate dated 29 June 2004.
93.These matters I do not regard as fatal in any way to the Worker’s case. Her condition at that stage was still under investigation. However, it is probably fair to say that if the Worker considered her condition was as a consequence of work performed on 29 March 2004, or indeed as a consequence of her hip injury, WorkCover medical certificates would have been completed as opposed to a general medical certification. There is no history in the notes of Dr Ibrahim or indeed the Campsie Medical Centre commencing on 20 April 2004 of any work alleged injury. The first reference to any work related issue is contained in an entry in the notes dated 12 July 2004 which states as follows:
“Patient belive [sic] she did no heavey [sic] duities [sic] befor [sic] neck symptoms started except the work duities [sic] the week befor [sic] the symptoms started. She request [sic] w/c certificate for that period, adviced [sic] to consult the specialist as I’m uncetin [sic] of the cause of the injury and request the spicialist [sic] openion [sic] re that.”
94.Again, that does not shed any great light on the issue of causation since it is unclear to which “week” the doctor refers. Either way, this statement does not accord with the Worker’s oral evidence nor indeed her written statements. It is again an unexplained, and indeed unresolved inconsistency which neither the Arbitrator nor the Worker have addressed.
95.These unexplained and unresolved inconsistencies, particularly the Worker’s oral evidence and her conflicting written statements (particularly the second statement) have led me to the view that the Worker has failed to discharge the onus of proof upon her in establishing a causal connection between her work with the Appellant and her neck injury. I have very carefully considered all the evidence before the Arbitrator, the Worker’s oral evidence and the parties’ submissions before the Arbitrator. It is difficult to reconcile the Arbitrator’s statement that the Worker was “a direct and truthful witness” in circumstances where her oral evidence differed so markedly from her written statements. This is not a criticism as such: I merely point out the discrepancies in her oral and written evidence.
That oral evidence was also inconsistent with the history given to Dr Beer upon whom the Arbitrator appears to have placed great reliance. The Arbitrator’s ‘Statement of Reasons’ contained glaring inconsistencies to which I have referred previously, in particular, his acceptance of the Worker’s written and oral statements as being “consistent with the medical evidence overall” where that medical evidence was not identified and further, his statement that the Worker’s account was consistent with the report of Dr Beer. Her written statements were to some extent consistent, but her oral evidence was utterly inconsistent.
96.The Arbitrator’s conclusion that the only apparent cause of the neck injury was the Worker’s employment with the Appellant on 29 March 2004 was not only against the weight of evidence but was in stark contrast to the opinion of Dr Beer and the Worker’s written statements.
97.The Arbitrator’s failure to resolve these conflicting accounts reflect a fundamental error in his reasons, and his determination must accordingly be set aside. My powers on review of an Arbitrator’s decision contained in section 352 of the 1998 Act permit me, having revoked the decision, to either issue a new decision or remit the matter to an Arbitrator for re-determination.
98.Having reviewed the whole of the evidence, I am not persuaded that it is appropriate to remit the matter for re-determination. There was a considerable amount of evidence before the Arbitrator, and the Worker gave extensive oral evidence. She was represented by Counsel, and both parties made detailed submissions to the Arbitrator contained in the transcript to which I have referred. Notwithstanding the Arbitrator’s acceptance of the Worker as a “direct and truthful witness” the unexplained and unresolved inconsistencies in all the evidence have led me to the view that the Worker failed to establish, on the balance of probabilities, the relevant causal connection between her employment with the Appellant and her undoubted C6/7 disc lesion.
DECISION
99.The decision of the Arbitrator dated 20 November 2006 is revoked and the following decision made in its place:
“1.Award in favour of the Respondent, St Vincent De Paul Society Aged & Special Services Limited (Lewisham Nursing Home).
2. No order as to costs.”
COSTS
100.I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
3 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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