State Rail Authority of NSW v Cowles - [2010] NSWWCCPD 114

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		State Rail Authority of NSW v Cowles [2010] NSWWCCPD 114
APPELLANT:		State Rail Authority of NSW
RESPONDENT:		Michael Kenneth Cowles
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		A3-103/10
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		7 May 2010
DATE OF APPEAL DECISION:		3 November 2010
SUBJECT MATTER OF DECISION:		Application for increase in weekly compensation; causation; relevance of non work incidents
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	SMK Lawyers
Respondent:		Whitelaw McDonald
ORDERS MADE ON APPEAL:		Time to appeal is extended until 21 June 2010. Paragraphs 2(i) and 3 of the Arbitrator’s determination of 7 May 2010 are revoked. In substitution of paragraph 3 the following order is made: “3. Award for the applicant in respect of weekly compensation to be paid by the first respondent from 1 March 2010 to 31 March 2010 at the rate of $396.10 per week and from 1 April 2010 to date and continuing at the maximum statutory rate for a worker with no dependants, as adjusted under s 40(6) of the Workers Compensation Act 1987.” All other orders in the Certificate of Determination dated 7 May 2010 are confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Mr Cowles, started work for the appellant employer, State Rail Authority of NSW (State Rail) as a fettler in 1979. He injured his back in the course of his employment with State Rail on 27 October 1989 when a stack of railway sleepers collapsed as he was holding one of the sleepers. He again injured his back with State Rail on 22 November 1991 while handling machinery.
Mr Cowles claimed compensation from State Rail in the former Compensation Court of NSW. In a decision delivered on 28 September 1992, Commissioner Grayson made an award in his favour under s 40 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $12.14 per week from 28 April 1990 to 26 October 1990, $118.95 per week from 28 March 1991 to 21 November 1991 and $136.22 per week from 1 June 1992 to date and continuing.
As a result of his injuries, he underwent back surgery at the hands of Dr Bleasel in 1993. After the operation, he continued to suffer from constant back and leg pain. The level of his pain depended on what he was doing. He was unable to return to work as a fettler because he continued to experience back spasms and episodes of sciatica and was unable to walk more than 30 to 50 metres.
Mr Cowles ceased work for State Rail in 1993. He then retrained as a chef and worked for several different employers. He said that, since his injuries with State Rail, he has had “almost daily episodes of sciatica”.
An application by State Rail to terminate Mr Cowles’ award of weekly compensation was discontinued on 13 October 1995.
On 23 October 1996, Mr Cowles settled a claim for lump sum compensation against State Rail in the sum of $19,477.50 in respect of a 25 per cent permanent impairment of his back as a result of his 1989 and 1991 injuries.

On 5 January 2004, Mr Cowles started work as the evening shift food services supervisor with the Uniting Church in Australia Property Trust (NSW) operating as Wesley Mission (Wesley Mission). This work involved cooking for up to 250 people at a time and required him to lift 20 kg bags of flour and other items. He claims that he would be in pain after a heavy days’ work at Wesley Mission and that his duties aggravated his back injury.

In September 2006, Mr Cowles was mowing his father’s lawn when he felt a “twinge” in his lower back while pulling the starter lever. He described it as one of “many twinges” he had. About a week later (on 13 September 2006) Mr Cowles was putting on his work shoes at home when he suffered another episode of severe pain in his lower back radiating into his left leg. His pain was so severe that he was taken to hospital by ambulance.
Wesley Mission terminated Mr Cowles’ employment on 18 April 2007.
On 2 March 2009, Mr Cowles underwent further back surgery in the form of a decompressive laminectomy.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 11 January 2010, Mr Cowles claimed weekly compensation against State Rail (the first respondent) and Wesley Mission (the second respondent) in the sum of $700 per week from 1 October 2006 to date and continuing together with hospital and medical expenses of $8,542.14.
The Commission listed the matter for conciliation and arbitration on 8 April 2010 (the transcript has wrongly recorded the hearing date as 7 May 2010). Mr Cowles gave brief oral evidence and the parties made lengthy submissions. In a reserved decision delivered on 7 May 2010 the Arbitrator made the following orders:
“1.     Award for the Second Respondent in respect of the Applicant’s claim of injury, weekly benefits compensation and section 60 medical treatment expenses.
2.     Award for the Applicant in respect of weekly benefits compensation to be paid by the First Respondent pursuant to section 37 as follows:
(i)      From 18 September 2006 to 30 September 2006 at the rate of $347.90 per week;
(ii)     From 1 October 2006 to 31 March 2007 at the rate of $354.40 per week;
(iii)   From 1 April 2007 to 30 September 2007 at the rate of $361.30 per week;
(iv)   From 1 October 2007 to 31 March 2008 at the rate of $367.70 per week;
(v)     From 1 April 2008 to 30 September 2008 at the rate of $374.90 per week;
(vi)   From 1 October 2008 to 31 March 2009 at the rate of $381.40 per week;
(vii)     From 1 April 2009 to 30 September 2009 at the rate of $389.10 per week; and
(viii)   From 1 October 2009 to 28 February 2010 at the rate of $396.10 per week.
3. Award for the Applicant in respect of weekly benefits compensation to be paid by the First Respondent from 1 March 2010 to date and continuing at the rate of $403.70 per week pursuant to section 40.
4.       The First Respondent to pay the Applicant’s section 60 reasonably necessary medical treatment expenses.
5.       The First Respondent to pay the Applicant’s costs as agreed or as assessed. I am satisfied that this matter should be certified as complex as the matter included factual and medical disputes and argument. There was a long history involving two Respondents and an argument regarding disease as well as frank injuries. A large amount of extra work was required by the parties in respect of a large volume of material. I am satisfied that the maximum uplift of 45% is justified applicable to all parties.”
In an appeal initially lodged on 7 June 2010, State Rail sought leave to challenge the Arbitrator’s orders against it but did not seek any relief that affected the orders made in favour of Wesley Mission. As a result, Wesley Mission has not been joined as a party to this appeal and, save for a letter dated 26 July 2010 noting that the orders sought by State Rail did not affect Wesley Mission, it has not filed any submissions. In a separate appeal lodged on 4 August 2010, Mr Cowles sought leave to challenge the Arbitrator’s award in favour of Wesley Mission (see Cowles v State Rail Authority of NSW and another [2010] NSWWCCPD 115).

LEAVE TO APPEAL
Monetary threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
It is not disputed that the monetary thresholds in s 352(2) of the 1998 Act are satisfied.

Time

State Rail’s appeal was originally lodged with the Commission on 7 June 2010. The Commission wrongly rejected that document on the ground that it was thought to be outside the 28-day period in s 352(4) of the 1998 Act.
The Commission issued a Certificate of Determination in this matter on 7 May 2010. In reckoning time in which to appeal, the date on which the relevant order is made is not counted. Therefore, the 28^th day from 8 May 2010 (including 8 May) was Saturday 5 June 2010. Under s 36(2) of the Interpretation Act 1987, if the last day of a period of time prescribed for the doing of any thing falls on a Saturday or Sunday or public holiday or bank holiday, the thing may be done on the first day following that is not a Saturday or Sunday or public holiday or bank holiday. In the present case, that day was Monday 7 June 2010. Therefore, the appeal was lodged in time on 7 June 2010.
As the Commission rejected the appeal lodged on 7 June 2010, the appeal was lodged again on 21 June 2010 and registered on 24 June 2010. This appeal included submissions that the original appeal was in time and, in the alternative, submissions seeking an extension of time. This document was sealed and served on the worker’s solicitors. As this is the document on which the appeal is proceeding and as it was lodged out of time, it is appropriate to determine whether time to appeal should be extended. In a notice of opposition lodged on 3 August 2010, the worker opposed the extension of time in which to appeal.
In all the circumstances, I am satisfied that exceptional circumstances exist that justify the extension of time to appeal until 21 June 2010. My reasons are:
(a)     the appeal was originally lodged in time but rejected because of an error by the Commission;
(b)     State Rail’s solicitor served an unsealed copy of the original appeal on the worker’s solicitors on 7 June 2010, and
(c)     there is no prejudice to the worker if time to appeal is extended.
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.”
State Rail’s solicitor, Ms Smuts, initially submitted that there was nothing to prevent the appeal being determined on the basis of the written application and any written notice of opposition. In his notice of opposition filed on 3 August 2010, Mr Cowles submitted that the matter should be given an oral hearing. He presented no argument in support of his position. In response, Ms Smuts submitted that in light of the procedural issues that arise in this matter, she agreed with the worker that the matter should be granted an oral hearing. Ms Smuts did not identify the procedural matters that require an oral hearing. If she was referring to the calculation of time in which to appeal, that issue has been determined in her client’s favour. There are no other procedural issues that justify an oral hearing.
Both parties have filed detailed written submissions in support of their respective positions and they have clearly identified the issues in dispute. I am satisfied that the appeal can be determined on the basis of the documents filed and that I have sufficient information to proceed ‘on the papers’, without holding a conference or formal hearing and that is the appropriate course in the circumstances.

FRESH EVIDENCE

State Rail seeks to rely on the following “new evidence” on appeal:
(a) reports from Dr Bleasel dated 7 February 1992, 28 February 1992, 8 April 1992 and 29 May 1992, and
(b) reports from Dr Schutz dated 18 October 1994 and 1 April 1994.
‘Fresh evidence’ or ‘additional evidence’ on appeal is governed by s 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Ms Smuts submitted that the fresh evidence was (not) available at the time of the arbitration “as the insurer received the documents from archives after the arbitration date”. She argued that it is “information that would have been known to the respondent worker having been evidence and findings involved in his earlier proceedings”. Mr Cowles has objected to the introduction of the fresh evidence on the ground that the documents were in the hands of State Rail, or, if not, could have been obtained by State Rail prior to the arbitration and no satisfactory excuse has been offered as to why the documents were not able to be put before the Arbitrator. In response, Ms Smuts submitted that the documents had been recalled from archives before the arbitration, but could not be located and retrieved until after the arbitration. It was submitted that the documents are sought to be introduced to allow the Commission “to be fully informed of the situation before it” and that there is no prejudice to the worker if the documents are admitted.
The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”

However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”

In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (s 354(3) of the 1998 Act).
Whilst I accept that the additional evidence is credible, State Rail has not demonstrated that the additional evidence could not have been obtained with reasonable diligence for use at the arbitration. Ms Smuts has provided no evidence as to when the information was sought or why it had not been obtained in time for use at the arbitration. Merely asserting that the information was in archives is insufficient.
More importantly, the evidence is not such that there is a high degree of probability that the result would be different. Counsel for State Rail made no application for the arbitration to be adjourned to allow time for the additional information to be obtained. Ms Smuts has made no reference to the “new evidence” in her submissions on appeal.
The material in Dr Bleasel’s reports is substantially covered in Dr Bleasel’s report of 20 July 1992, which is already in evidence. Dr Schutz’s reports add nothing to State Rail’s case. If anything, Dr Schutz’s reports tend to corroborate Mr Cowles’ evidence that he continued to experience back and leg symptoms after the 1993 surgery. That fact is not seriously in issue.
In all the circumstances, I do not accept that it is in the interests of justice that the additional evidence be admitted on appeal and the application to file additional evidence on appeal is refused. Parties are reminded, yet again, that arbitrations are not a trial run where they can await the outcome before turning their minds to the proper preparation of their respective cases. All relevant evidence should be obtained and tendered at the arbitration.

THE ARBITRATOR’S REASONS

In her reserved Statement of Reasons (Reasons) the Arbitrator comprehensively reviewed the evidence and found:
(a)     Mr Cowles suffered two significant frank injuries to his back in 1989 and 1991 while employed by State Rail as a fettler and he underwent an L5/S1 laminectomy in 1993. He commenced proceedings in the former Compensation Court of NSW and recovered an award of weekly compensation in the sum of $136.22 from 1 June 1992 to date and continuing and lump sum compensation in respect of a 25 per cent impairment of his back;
(b)     on 13 September 2006, Mr Cowles felt a “twinge” in his back when he pulled a starter of a lawnmower and about a week later he was tying up his shoelaces when he felt severe pain in his back and left leg, such that he had to be taken to hospital by ambulance. He has not returned to work since;
(c)     Mr Cowles had been certified totally unfit for work until August 2009 when he had coronary bypass surgery. He was unfit until February 2010 when he commenced a university course attending about 15 hours a fortnight;
(d)     the work Mr Cowles performed at Wesley Mission was “heavy in nature” (Reasons at [49]);
(e)     Mr Cowles’ symptoms in his lumbar spine and left leg never fully resolved after his 1993 laminectomy and he continued to have constant back and left leg pain. The degree of pain he experienced depended on the activity in which he was engaged. His evidence that if he stood a lot or drove a lot he experienced an increase in pain was consistent with the history recorded by Dr Burns, who also noted that Mr Cowles’ symptoms had not changed dramatically in 13 years until the incident with the lawn mower in September 2006 and the tying of shoelaces a week later, which put him off work altogether (Reasons at [50]);
(f)   there was no evidence of any complaint of back pain in the clinical notes of the treating doctors from January 2004 to 18 September 2006, except for one entry on 2 September 2006, which related to his flu like symptoms and was not indicative of any back injury. On 18 September 2006, the Ettalong Beach Medical Centre recorded an increase in back symptoms three weeks earlier. However, because of flu like symptoms, Mr Cowles had not been at work from 9 August 2006 and had not been at work at the time of the two incidents in September 2006. Mr Cowles had not sustained an injury to his back or left leg in the course of his employment with Wesley Mission;
(g)     accepting Dr Pillemer’s evidence, following the 1993 surgery Mr Cowles developed significant degenerative changes and canal stenosis at multiple levels in his low back. Mr Cowles’ problems started with State Rail and persisted since then with a significant increase in symptoms in relation to two incidents in September 2006;
(h)     the incidents in September 2006 were “trivial incidents and were in the nature of recurrences of the injuries previously sustained by Mr Cowles” with State Rail in much the same way as the incident recorded by Dr Smith in his report of 17 January 1991. In that report, Dr Smith recorded that on 28 October 1990 Mr Cowles was mowing the lawn at home when he bent over and experienced back pain and a recurrence of his leg symptoms;
(i)   Mr Cowles’ current condition, his incapacity and need for surgery resulted from the significant injuries sustained with State Rail because those injuries “set in train marked degenerative changes in Mr Cowles’ lumbar spine, which culminated in a very fragile and vulnerable back, so that a minor activity such as pulling a starter or tying up shoelaces would trigger intense pain in the low back and legs” (Reasons at [55]);
(j)   though the Application did not cast Mr Cowles’ claim against State Rail as an application for an increase in his previous award because of a change in circumstances under s 55 of the 1987 Act, that was a technical formality that did not preclude her from assessing the extent of State Rail’s current liability (Reasons at [56]), and
(k)     Mr Cowles was totally unfit from September 2006 to 28 February 2010 and partially unfit thereafter.

ISSUES IN DISPUTE

Ms Smuts has identified the following grounds of appeal:
(a)     that the Arbitrator’s findings with respect to injury were wrong in fact and law;
(b)     that the Arbitrator’s findings with respect to causation as against State Rail were wrong in fact, and
(c)     the Arbitrator’s decision contains demonstrable errors.
State Rail has not challenged the Arbitrator’s finding that Mr Cowles did not receive an injury in the course of or arising out of his employment with Wesley Mission.

SUBMISSIONS

The submissions made on behalf of State Rail may be summarised as follows:
(a)     the Arbitrator’s approach with respect to s 55 of the 1987 Act was “at odds with” the Commission’s decision in Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9 (Chapman);
(b)     the injury presently before the Commission was “one of aggravation” and the Arbitrator’s findings with respect to the worker’s injury were at odds with the evidence and wrong in fact. Ms Smuts did not submit that the worker’s employment with Wesley Mission “necessarily contributed to the aggravation injury sustained by the worker” but argued that the evidence established “that the worker sustained an aggravation to the injury in his lower back as a result of the incidents of September 2006”;
(c)     it is not disputed that the injuries with State Rail “set in motion a degenerative disease process in the worker’s back”, however, the subject of the current proceedings is an aggravation of that disease process;
(d)     the evidence makes it clear that the worker’s “injury following the incidents of September 2006 was more than a mere episode of pain”. It caused Mr Cowles an ongoing inability to return to work and necessitated the need for further surgery in 2009;
(e)     Dr Pillemer confirmed that the September 2006 incidents were aggravations of the worker’s longstanding widespread and marked degenerative changes in his low back. Dr Bracken recorded that Mr Cowles had been able to cope with his duties until September 2006 when heavy work increased his back soreness. Soon after, while putting on his shoes Mr Cowles developed severe low back pain and left leg symptoms. Dr Bracken felt that the heavier conditions of work with Wesley Mission had caused an aggravation of the worker’s degenerative back condition, particularly at L5/S1;
(f)   accordingly, the Arbitrator’s findings that the September incidents were minor or trivial and only triggered intense pain was wrong and at odds with the medical evidence. The “incidents in September 2006 caused an actual aggravation injury to the worker’s lumbar spine, as opposed to [the Arbitrator’s] diagnosis of a recurrence”;
(g)     the symptoms of a disease and their worsening should not be separated from considerations of a worsening of the disease itself. Consideration of the words “aggravation, acceleration, exacerbation or deterioration” in s 4(b)(ii) of the 1987 Act requires an examination of whether the disease has worsened “in the sense of more grave, more grievous or more serious in its effects upon the patient” (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 639 (Semlitch)). The incidents in September 2006 brought about a severe intensification of the worker’s experience of the degenerative condition in his back and caused him to be completely incapacitated for employment and brought about the need for further surgery. The Arbitrator erred in law in failing to define the worker’s injury, which arose following the incidents of September 2006, as an aggravation of the worker’s degenerative back condition and one that could separately satisfy the definition of personal injury in s 4(b)(ii);
(h)     once the worker’s injury is properly defined as an aggravation of his acknowledged degenerative back condition, the Arbitrator’s “findings with respect to causation must fall away”;
(i)   the Arbitrator found that Mr Cowles had not received an injury with Wesley Mission. A similar analysis of the evidence with respect to the worker’s employment with State Rail “would produce a substantially similar result as against the appellant.” There was no evidence of unexplained increases in symptoms that would support a finding that an episode such as that experienced by the worker in September 2006 was a regular, recurrent feature of the injury sustained with State Rail. As the worker did not report a significant increase in symptoms until after the incidents of September 2006, those incidents must be seen to have caused a fresh aggravation injury;
(j)   the worker’s aggravation arose as a result of the aggravation incidents of September 2006 and cannot be said to have arisen out of or in the course of his employment with State Rail. A commonsense analysis of the evidence would suggest that there was a definite aggravation of the worker’s back injury as a result of the incidents in September 2006;
(k)     Dr Pillemer considered that the worker’s incapacity since 1 October 2006 was due to the incident with the mower in September 2006 and the incident with the shoelaces was a further aggravation;
(l)   therefore, the worker’s current incapacity and need for further surgery has resulted from the aggravation in September 2006;
(m)   once the injury is properly construed as an aggravation that arose following the incidents of September 2006, s 9A of the 1987 Act must be applied. The worker’s employment “aggravation injury” was not contributed to (by his employment) in a way that was real or of substance;
(n)     mere proof that certain events occurred which predisposed the worker to subsequent injury will not, of itself, be sufficient to establish that the incapacity has resulted from a work injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang)). A commonsense analysis of the evidence reveals that the worker’s incapacity and need for further surgery has resulted from the aggravation injury in September 2006 and that aggravation is not causally connected to the worker’s employment;
(o)     the extent of State Rail’s liability remains unchanged from that determined by the Compensation Court of NSW in 1992, and
(p)     the Arbitrator erred in making an award from 18 September 2006 when the claim dated from 1 October 2006. She also erred in the quantum of compensation awarded from 1 March 2010.
It has been submitted on behalf of Mr Cowles that, when the whole of Dr Pillemer’s evidence is considered, the increased symptoms in September 2006 and the incapacity were a consequence of the original injury with State Rail and it was open to the Arbitrator to find that the symptoms were a recurrence of the original injury.

DISCUSSION AND FINDINGS

I do not accept State Rail’s submissions. As will be discussed below, the evidence from Mr Cowles and Dr Pillemer provided ample support for the Arbitrator’s findings and conclusions. For the reasons given by the Arbitrator, and for the additional reasons set out below, I agree with those conclusions.
The relevance of State Rail’s reference to Chapman is unclear. In that case, I criticised an employer for not providing proper particulars of an application for review under s 55. The same criticism can be made of the worker’s solicitors in the present matter. However, the Application referred to the earlier proceedings against State Rail and it cannot be said (and has not been said) that the inadequate particularisation of the claim has cause State Rail any prejudice. It was correctly noted at the arbitration that, at the time the current proceedings commenced, the Commission had no form for use in a s 55 application (T25.20). Counsel for Mr Cowles invited the Arbitrator to treat the Application against State Rail as an application for an increase “given the change in circumstances that are apparent in this case” (T25.26). Counsel for State Rail did not object to that course, but (wrongly) suggested that it was open to the Arbitrator to reduce the worker’s entitlement to a nominal sum (T29.58) despite the fact that State Rail had never sought a decrease in the previous award. In these circumstances, it is not open to State Rail to object on appeal to the fact that the Arbitrator treated the Application as an application for an increase under s 55.
The reference to the injury before the Commission being “one of aggravation” was not accurate and was apt to mislead. The issue against State Rail was and is whether the increased symptoms and incapacity Mr Cowles experienced in September 2006 and following, and the need for surgery in 2009, resulted from his undisputed injuries in 1989 and 1991, or from some other cause.
State Rail has not challenged the Arbitrator’s finding that Mr Cowles did not suffer an injury with Wesley Mission but has submitted that he suffered an “aggravation injury” under s 4(b)(ii) of the 1987 Act in the two incidents in September 2006. As the events in September 2006 did not occur at work, they cannot be characterised as “aggravation injuries” under s 4(b)(ii) and State Rail’s reference to Semlitch is misguided. More accurately, State Rail’s argument is that the worker’s change in circumstances in September 2006 that led to an increase in his incapacity and to his need for further surgery has resulted from the two non-work related events in September 2006 and not from the two injuries with State Rail in 1989 and 1991. This is a straightforward causation dispute. Regardless of how the argument is presented, I do not accept State Rail’s contentions, which are unsupported by any persuasive evidence.
State Rail has selectively quoted from Dr Pillemer’s evidence and virtually ignored the evidence from Mr Cowles as to his continuing back and leg symptoms since 1993. Dr Pillemer saw Mr Cowles on 11 June 2009 at the request of the solicitors for Wesley Mission. He noted that the solicitor’s particular interest was the extent of Mr Cowles’ back impairment as a result of the nature and conditions of his work with Wesley Mission between January 2004 and September 2006. The letter of instructions stated that Mr Cowles ceased work on 1 September 2006, but Dr Pillemer said that Mr Cowles was adamant that he ceased work after 13 September, “when he hurt his back again”.
Dr Pillemer took a history of Mr Cowles’ injuries with State Rail and of the surgery in 1993. Mr Cowles said he had improved considerably after the surgery but had ongoing problems with his low back and left lower limb since then with “a persistent feeling of numbness and burning in the lateral aspect of the left foot and also intermittent discomfort in his low back region”. Mr Cowles retrained as a chef and ultimately started work with Wesley Mission. This work involved a lot of heavy lifting of pots, but there did not seem to have been any particular incident or injury with Wesley Mission.
Dr Pillemer referred to a history taken by Dr Biggs, neurosurgeon, on 6 November 2006 that “two months ago mowing lawn and felt a pinch, and four days later much worse”. Mr Cowles told Dr Pillemer that approximately a week after that episode, he was simply bending over at home to tie his shoelaces while getting ready for work and the pain became so severe he was unable to move and had to be taken to hospital by ambulance. Mr Cowles said that this occurred on 13 September 2006 and that he was still working for Wesley Mission at the time.
Because of his persistent and significant symptoms, Mr Cowles had further surgery in February 2009. He said that after his first operation, his symptoms reduced to four out of ten and after his second operation, they were six out of ten, but they were still improving. He continued to have back pain radiating down his left leg and some numbness in his right thigh.
On examination, Mr Cowles demonstrated a marked restriction of low back movement. His straight leg raising was 80 degrees on the right and was uncomfortable at 70 degrees on the left. The left ankle jerk was absent. He had hypoaesthesia to pinprick over the lateral border of his left foot in S1 distribution and weakness on eversion on the left side. These were all features of an S1 nerve root lesion. An MRI scan taken in November 2006 showed canal stenosis at the lower lumbar levels with a focal disc protrusion at L5/S1. An MRI on 27 July 2008 confirmed multilevel disc degenerative changes with disc bulging and marked disc narrowing at the lumbosacral level with moderate canal stenosis particularly on the left side. There was also mild to moderate canal stenosis and bilateral recess stenosis at the L4/5 level and annular tear and focal left disc protrusion at the L3/4 level.
Under “Attributability”, Dr Pillemer said:
“As noted, following his injury with State Rail Authority, Mr Cowles has subsequently developed significant degenerative changes and canal stenosis at multiple levels of his low back. His problems started with the State Rail Authority and have persisted since then with significant increasing symptoms in relation to two incidents in 2006, namely starting the lawn mower and also simply bending down to tie up his shoelaces.
These incidents would simply have been aggravations of his longstanding widespread and marked degenerative problem with his low back.”
Dealing with the work with Wesley Mission, Dr Pillemer said that the nature and conditions of Mr Cowles’ work there would “at most have been an aggravation of an underlying condition” and “not a substantial contributing factor to the ongoing problems with his back and his left lower limb”. He added:
“It is my opinion then that he would have reached his present level of discomfort, disability and impairment irrespective of his employment with Wesley Mission. It is difficult to be more specific than this.”
Dr Pillemer thought it was predictable that Mr Cowles would have ongoing problems with his low back. He concluded:
“In my opinion he has been incapacitated for work since 1 October 2006 but this does not seem likely to be due to his work at the Mission but rather due to an incident when he was mowing the lawn in September 2006 and then symptoms were significantly aggravated some time later while simply doing up his shoelaces.”
The only other evidence touching on causation was from Dr Bracken. He concluded that Mr Cowles suffered a disc prolapse as a result of his work with Wesley Mission. The Arbitrator did not accept this conclusion because it was based on an incorrect history that Mr Cowles’ symptoms increased in September 2006 while performing heavy work for Wesley Mission. That was clearly not so. As the Arbitrator found (see [34(f)] above), Mr Cowles had not been at work since 9 August 2006 and was not at work in September 2006. Mr Cowles has not challenged that finding. For the reasons given by the Arbitrator, I do not accept Dr Bracken’s conclusion that Mr Cowles suffered a disc prolapse as a result of his work with Wesley Mission.
More importantly in the context of the present appeal, Dr Bracken’s conclusions do not support the “aggravation” argument advanced by State Rail on appeal. Though Dr Bracken had a history of the “twinge” of pain while starting a lawn mower in September 2006, and that the worker experienced severe pain whilst bending over to put on his shoes on 13 September 2006, he attributed none of Mr Cowles’ disability or incapacity to either of those incidents. He apportioned liability equally between Wesley Mission and State Rail. This was after having apportioned liability 80 per cent to State Rail and 20 per cent to Wesley Mission in his first report. Whilst this is not conclusive, it significantly undermines State Rail’s submissions on appeal that Mr Cowles’ current condition has resulted from the September 2006 incidents.
Having regard to the whole of the evidence, the better view is that, as the Arbitrator found, the two incidents in September 2006 were trivial incidents that were in the nature of recurrences of the injuries received with State Rail. This conclusion is reinforced when one considers the unchallenged history of Mr Cowles’ symptoms since his original injuries and the report from Dr Smith of 17 January 1991.
Dr Smith took a history of Mr Cowles’ 1989 injury and that, after a period off work and then on light duties, Mr Cowles returned to work on normal duties. Though he had no back pain, he still had occasional twinges of right leg pain. On 28 October 1990, Mr Cowles was mowing his lawn at home and he bent over and felt severe back pain and had a recurrence of his leg symptoms. He went off work for two months and then returned on light duties. Dr Smith did not suggest that the mowing incident was a separate injury. He predicted “major long term problems” for Mr Cowles and thought it was imperative that he should be directed to an effective back care program and redeployed into a more suitable occupation. Unfortunately, Dr Smith’s prediction has proven accurate.

This evidence is consistent with the conclusion that the two incidents in September 2006 were trivial incidents that were examples of the long-term problems Dr Smith predicted that Mr Cowles would suffer. Thus, as a matter of commonsense, the compelling conclusion is that the increase in Mr Cowles’ symptoms in September 2006 resulted from his injuries with State Rail. This conclusion is further supported by the history taken at Gosford Hospital on 13 September 2006, which recorded that Mr Cowles presented with low back and left leg pain against a background of a laminectomy in 1993 and, a history of “weekly episodes of sciatica”. This history is substantially consistent with Mr Cowles’ evidence to the Commission that he has had “almost daily episodes of sciatica” since his injuries with State Rail (see Mr Cowles’ statement 23 December 2009 at [29]). The hospital took no history of the “twinge” while lawn mowing or of Mr Cowles bending to tie his shoelaces. This strongly suggests that he did not consider those incidents significant.
I accept, as did the Arbitrator, that Mr Cowles has suffered constant back and leg pain since his operation in 1993 and that the “twinge” in his back while mowing his father’s lawn in September 2006 was “just one of many twinges he had” over the years (Mr Cowles’ statement 23 December 2009 at [27]). I also accept Mr Cowles’ evidence that his pain “differentiated” (fluctuated) depending on what he did. This evidence is consistent with Mr Cowles having experienced increased symptoms because of minor incidents ever since his original injury. He has consistently complained of back and leg symptoms since his injuries with State Rail and it is untenable to suggest that Mr Cowles’ increased symptoms and incapacity in September 2006 resulted from anything other than the injuries with State Rail. That is especially so in circumstances where State Rail has qualified no medical expert in support of its position.

Though Dr Pillemer described the September incidents as “aggravations of his widespread longstanding and marked degenerative problem”, he did not suggest that they caused any new pathology or that the effect of the original injuries with State Rail had ceased. It follows that, consistent with Dr Pillemer’s evidence, Mr Cowles’ problems started with State Rail and, having persisted since then, he would have reached his present level of disability regardless of his employment with Wesley Mission and regardless of the two trivial domestic incidents in September 2006. In all the circumstances, I am comfortably satisfied that the increase in Mr Cowles’ incapacity in September 2006 and the need for his further surgery in 2009 resulted from his injuries with State Rail.

Even if it is thought, contrary to my conclusion, that the incidents in September 2006 have made a material contribution to Mr Cowles’ current condition, that does not relieve State Rail of liability. In Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1972] 2 NSWLR 435 (Cluff) Reynolds JA (Hope and Glass JJA agreeing) considered the situation where a worker had an injury with one employer which left him vulnerable to increased disability by the effects of further work with a second employer, and held at 439:
“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.
It is also not open to doubt that, if a worker receives a disability in the employment of A, and subsequently receives an injury in the employment of B which is causally related to the original disability, it is open to the tribunal to conclude that any incapacity arising after the second injury resulted from the first injury.”

The only difference between Cluff and the present matter is that in the present case the 2006 incidents did not happen at work. Nevertheless, the principle is the same and applies to Mr Cowles’ circumstances thus rendering State Rail liable for the consequences of the 1989 and 1991 injuries even if the 2006 incidents have also contributed to his condition.
The High Court reached the same conclusion in Conkey & Sons Ltd v Miller [1977] 51 ALJR 583. In that matter, the deceased worker suffered a work caused myocardial infarction in 1974 from which he never fully recovered, though he did return to work. He ceased work in September 1975 and suffered another (non work-related) myocardial infarction on 13 October 1975, from which he died. Barwick CJ, with whom all other members of the Court agreed, said at 585F:

“Thus the effect of the medical evidence I have quoted would seem to be that the work-caused injury to the heart at the time of the first infarction was so great that, there being no recovery, another infarction, no matter what its immediate cause, would most probably, if indeed not certainly, be fatal. In my opinion, such a statement warrants the conclusion that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by [a] work-caused injury.”

The High Court applied the above principles in Calman v Commissioner of Police [1999] HCA 60; 73 ALJR 1609 where Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ held (at [38], excluding footnotes):

“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”

The submission that s 9A of the 1987 Act must be applied is fundamentally wrong. Mr Cowles received his injuries with State Rail before s 9A was introduced and that section has no application to his claim against State Rail. In any event, as the Commission has held in hundreds of cases, employment only has to be a substantial contributing factor to the injury, not the incapacity (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725).
It follows that State Rail’s substantive grounds of appeal must fail.
State Rail has also submitted that the Arbitrator erred in making an award from 18 September 2006 when the claim dated from 1 October 2006 and erred in the quantum of compensation awarded from 1 March 2010. Mr Cowles has conceded that the Arbitrator erred on these issues, but submitted that they were errors that should be corrected by “application for review by the determining Arbitrator”.
Whilst the errors are minor and they could have been corrected under the slip rule, as State Rail has appealed it is appropriate that they be corrected on appeal. Paragraph 2(i) of the Certificate of Determination of 7 May 2010 will be revoked so that the award will commence on 1 October 2006, the date from which compensation was claimed in the Application. Paragraph 3 of the Certificate of Determination will be revoked and an order made in substitution to reflect the correct statutory rate of compensation at that time and to reflect the fact that it is proper in the circumstances, given the Arbitrator’s findings of the difference between Mr Cowles’ probable earnings and ability to earn, that the weekly rate be adjusted under s 40(6) of the 1987 Act.

CONCLUSION

Having conducted a review on the merits, I have determined that, save for the minor amendments noted below, the Arbitrator’s decision is true and correct and I agree with it. I have not amended the Arbitrator’s orders to reflect the fact that the orders made by the Commission are an increase under s 55 of the 1987 Act of the award made by the former Compensation Court of NSW on 28 September 1992, but that fact should be, and is, noted.

DECISION

Time to appeal is extended until 21 June 2010.
Paragraphs 2(i) and 3 of the Arbitrator’s determination of 7 May 2010 are revoked. In substitution of paragraph 3 the following order is made:

“3. Award for the applicant in respect of weekly compensation to be paid by the first respondent from 1 March 2010 to 31 March 2010 at the rate of $396.10 per week and from 1 April 2010 to date and continuing at the maximum statutory rate for a worker with no dependants, as adjusted under s 40(6) of the Workers Compensation Act 1987.”

All other orders in the Certificate of Determination dated 7 May 2010 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

3 November 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE