State Transit Authority of New South Wales v El-Achi
[2015] NSWWCCPD 71
•16 December 2015
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 | |
| APPELLANT: | State Transit Authority of New South Wales | |
| RESPONDENT: | Elia Jean El-Achi | |
| INSURER: | Transport Service of NSW (State Transit Group) | |
| FILE NUMBER: | A1-3420/15 | |
| ARBITRATOR: | Mr M Snell | |
| DATE OF ARBITRATOR’S DECISION: | 11 September 2015 | |
| DATE OF APPEAL DECISION: | 16 December 2015 | |
| SUBJECT MATTER OF DECISION: | Injury; aggravation and acceleration of disease; whether employment the main contributing factor to the aggravation and acceleration; assessment of expert evidence; causation; points not argued at arbitration; claim for the cost of treatment and service provided without prior approval of insurer; exemption from need for prior approval under WorkCover Guidelines for Claiming Compensation Benefits; ss 4(b)(ii) and 60(2A) of the Workers Compensation Act 1987; improper attempt to raise new issues in submissions in reply | |
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Hicksons |
| Respondent: | Schofield, King Lawyers | |
| ORDERS MADE ON APPEAL: | The Senior Arbitrator’s determination of 11 September 2015 is confirmed. | |
INTRODUCTION
This appeal challenges a Senior Arbitrator’s finding that the worker suffered an injury to his low back in the nature of an aggravation and acceleration of a disease and that his employment as a bus driver was the main contributing factor to the aggravation and acceleration of the disease. For the reasons explained below, the appeal is unsuccessful.
BACKGROUND
The respondent worker, Elia El-Achi, started work as a bus driver for the appellant employer’s predecessor in title in June 1978. At that time, he was 22 years old. His work involved significant amounts of sitting, often with poor posture, and driving a bus with a big steering wheel, which involved turning quite quickly and reacting to traffic.
Mr El-Achi’s unchallenged evidence was that old buses, in particular, had very poor seating with very poor suspension. He said that he would frequently feel sore in his back after sitting for “days on end”. He described being a bus driver in the 1970s, 1980s, and 1990s as a “physical job” and said that he could often not stand or sit at will. He experienced frequent pain in his back and never really experienced pain other than when he was driving, particularly for long periods.
He added that in recent times buses had become easier to drive, but there was still prolonged sitting with poor posture, as well as continual use of the accelerator and brake and the need to turn to take money or talk to passengers. This involved his back being engaged in awkward motions and in him sustaining awkward postures for lengthy periods.
Mr El-Achi experienced lower back pain in 2003, which he reported at work and required him to take three days off.
In July 2009, Mr El-Achi attended at Canterbury Hospital complaining about a burning in his left leg and was admitted for about five days. His condition worsened in 2013 and he experienced more significant back pain and increasing pain in his legs. His general practitioner, Dr Ullman, referred him to Dr Mobbs, neurosurgeon, who saw him in December 2013. According to Mr El-Achi, Dr Mobbs said that he required surgery. However, Mr El-Achi wanted to resist surgery if possible.
On 8 September 2014, Dr Mobbs performed a laminectomy and rhizolysis on the L3/4 and L4/5 levels of Mr El-Achi’s spine. Mr El-Achi has been off work since he ceased to have the surgery.
Mr El-Achi submitted a claim form on 3 December 2014 in which he related his back problems to the “nature and conditions of being a bus driver”. In a s 74 notice dated 6 March 2015, the appellant denied liability. It relied on evidence from Dr Casikar, neurosurgeon, that Mr El-Achi had chronic degenerative disease in his lumbar spine and lumbar canal stenosis, but no work related medical condition. It also disputed liability for any associated medical expenses on the ground that, under s 60 of the Workers Compensation Act 1987 (the 1987 Act), they were not reasonably necessary.
In a letter dated, 8 May 2015, Mr El-Achi’s solicitors made a claim on his behalf for hospital and medical expenses and for weekly compensation from 8 September 2014 to date and continuing. In support of his claim, Mr El-Achi relied on reports from Dr Mobbs, Dr Bodel, orthopaedic surgeon qualified by his solicitors, and Dr Rifi, general practitioner.
Mainly, but not exclusively, relying on the evidence from Dr Bodel, Mr El-Achi’s case was that he has vertebral canal stenosis, primarily a constitutional ailment (a disease), which had been aggravated or accelerated by his decades of bus driving with the appellant or its predecessors in title.
At the conclusion of the arbitration on 10 September 2015, at which neither side called any oral evidence or sought to cross-examine any of the medical experts, the Senior Arbitrator delivered an extempore decision in which he found in favour of Mr El-Achi on all issues. Specifically, accepting the evidence of Dr Bodel, in preference to the evidence from Dr Casikar, he found that Mr El-Achi suffered an injury in the nature of an aggravation and acceleration of a disease under s 4(b)(ii) of the 1987 Act and that Mr El-Achi’s employment was the main contributing factor to that aggravation and acceleration.
Consistent with the Senior Arbitrator’s decision, the Commission issued a Certificate of Determination on 11 September 2015 in the following terms:
“1.There is a finding that the applicant suffered injury to his back, in the course of his employment with the respondent, consisting of the aggravation and acceleration of a disease within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
2. The deemed date of the above injury is 8 September 2014.
3.The respondent is to pay the applicant’s expenses pursuant to section 60 of the 1987 Act, to include the reasonable costs of and incidental to surgery carried out on 8 September 2014.
4.The respondent is to pay the applicant weekly compensation pursuant to the 1987 Act as follows:
a)$1,317.79 per week from 8 September 2014 to 7 December 2014 pursuant to section 36;
b)$1,109.72 per week from 8 December 2014 to 1 January 2015 pursuant to section 37;
c)$907.28 per week from 2 January 2015 to 3 May 2015 pursuant to section 37;
d)$704.84 per week from 4 May 2015 to 30 June 2015 pursuant to section 37, and
e)$694.76 per week from 1 July 2015 to date and continuing pursuant to section 37.”
In an appeal filed in time on 9 October 2015, time running from the day after the date of the Certificate of Determination, the appellant has appealed.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Senior Arbitrator erred in:
(a) finding that Mr El-Achi suffered an injury as defined in s 4(b)(ii) of the 1987 Act (injury);
(b) finding that Mr El-Achi’s employment was the main contributing factor to the aggravation or acceleration of an underlying disease (injury);
(c) accepting the evidence of Dr Bodel in preference to the evidence of Dr Casikar (medical evidence);
(d) failing to deal with the submission, and failing to find, that Mr El-Achi’s incapacity for work resulted not from any injury arising out of or in the course of his employment, but from non-compensable factors which caused, aggravated or accelerated his canal stenosis (cause of incapacity), and
(e) finding that the medical and other treatment expenses incurred by Mr El-Achi in contravention of s 60(2A) of the 1987 Act were reasonable costs incurred in respect of the aggravation or acceleration of a disease during the course of Mr El-Achi’s employment (s 60(2A)).
THE LEGISLATION
Injury is defined in s 4 of the 1987 Act, as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), as follows:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
disease injury(b) includes a , which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Injury is also defined, in different terms, in s 4 of the 1998 Act. The 1998 Act defines injury as follows:
injury“:
(a) means a personal injury arising out of or in the course of employment, and
(b) includes:
(i)a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but
(c) does not include (except in the case of a worker employed in or about a mine):
(i) a dust disease, or
(ii)the aggravation, acceleration, exacerbation or deterioration of a dust disease.”
While the 1987 Act is to be construed with, and as if it formed part of, the 1998 Act (s 2A(2) of the 1987 Act), in the event of an inconsistency between the 1987 Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency (s 2A(3) of the 1987 Act).
Neither party has addressed on the inconsistent definitions of injury in the two Acts. The case proceeded before the Arbitrator, and on appeal, as if the 1987 Act definition of injury, as amended by the 2012 amending Act, applies.
It should be noted that s 9A, which requires that no compensation is payable under the 1987 Act in respect of any injury unless the employment concerned was “a substantial contributing factor to the injury”, does not apply to a disease injury.
To establish a disease injury, the claimant must establish that the employment was “the main contributing factor” to either the contraction of the disease (s 4(b)(i)) or to the aggravation, acceleration, exacerbation or deterioration of the disease (s 4(b)(ii)).
The present appeal concerns only s 4(b)(ii).
GROUNDS 1 AND 2: INJURY
Submissions
The appellant’s counsel, Mr Halligan, submitted that “main contributing factor” is a narrower concept than “a substantial contributing factor”, which appears in s 9A of the 1987 Act. He said that “main” is defined in the Macquarie Dictionary as “chief” or “principal”.
It was accepted by both qualified medical experts that Mr El-Achi’s condition arose from a degenerative disc disease, described by Dr Bodel as primarily a constitutional ailment. Dr Bodel said that Mr El-Achi’s employment caused an aggravation of the disease and, later, added “significant” in describing the aggravation. The Macquarie Dictionary suggests that “significant” means “important”. Mr Halligan submitted that “main” expresses much more force than “important”.
He contended that the legislature clearly wanted to raise the test level beyond “substantial”, the word used in s 9A, to a “much higher standard”. He said that if it was possible that bus driving was a cause at all of the aggravation it might have been that it was substantial, but it was never the main cause.
Mr Halligan argued that Dr Bodel is a well-known and highly experienced medicolegal expert who “holds WorkCover and MAA accreditation”. If he thought that Mr El-Achi’s work was the main cause of the aggravation, surely he would have said so. Mr Halligan said that Mr El-Achi had a long history of diabetes, which Dr Casikar said contributed to the symptoms.
Dealing with the clinical notes for the period from 2005 to 2013, Mr Halligan submitted that they recorded no history of bus driving that could be inferred as contributing to “an aggravation of back injury”. While there were a few isolated references to back pain, none of them were described in the context of bus driving. On 16 July 2009, Mr El-Achi presented to Canterbury Hospital with “unprovoked” leg and low back pain.
Mr Halligan submitted that the acceptance of the claim rests “entirely” on Mr El-Achi’s “opinion of a nexus existing between his work and the alleged aggravation fixed at the time he consulted with Dr Mobbs and seemingly made through a process of elimination that his condition was related to bus driving”. The “hypothesis” of the role of bus driving causing an aggravation “comes about in [Mr El-Achi’s] search [for] something to blame”. He did not present to his medical providers with a history from which they were able to draw conclusions. The inquiry was the reverse.
Mr Halligan then commented on the evidence from Dr Mobbs, which made “scant” reference to an aggravation, saying that the work was probably a contributing factor, but he did not describe it as the main contributing factor. Dr Mobbs did not outline any historical detail which might have informed him of what it was about bus driving that was relevant.
Mr Halligan argued that the Senior Arbitrator’s reasons do not include a discussion of the relative weight of employment as a contributing factor to the aggravation or acceleration of the disease compared to that of non-employment factors. Reference should have been made, so it was contended, to the circumstance in which the “significant aggravation” of the underlying disease occurred leading to the surgery on 8 September 2014.
A “proper” consideration would have included the circumstance likely to result in the onset of severe symptoms while Mr El-Achi was on holidays and undertaking normal activities, including walking, that there was a natural progression of the disease process while performing these activities, and the possibility that the main contributing factor to the significant increase in Mr El-Achi’s symptoms being otherwise than the employment activities.
It was submitted that “greater emphasis” should have been given to Mr El-Achi’s “holiday time”, when he had a burning pain down the legs in 2009 that “just came on”. In 2014, again on holidays, in Lebanon, Mr El-Achi had unbearable right leg pain. His evidence being that, while on holidays, the pain in his legs became “more and more unbearable”, without any provoking incident or accident.
Mr Halligan submitted that the test is one of causation, that is, the causation of the injury. The fact that Mr El-Achi’s employment placed him at the employer’s premises does not prove cause of injury. In Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 (Badawi), the President did not have regard to the nature of the work performed and the particular tasks of the work, but had regard to the appellant’s recreational activity. In the present case, the Senior Arbitrator emphasised the “perception of bus driving tasks without regard to other indicia including holiday activity”.
It was contended that the Senior Arbitrator was in no position to make a finding of causation of aggravation based on inferences because, where a worker is claiming compensation, it is necessary that evidence be produced to show that the tendencies, incidents or characteristics of the employment were of a type which could give rise to the injury in fact suffered (Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at 58–61 per Cole JA (Lobley)). The word “could” means “could as a matter of real risk”, and not “could as a matter of the barest possibility” (Ambulance Service of NSW v Daniel [2000] NSWCA 116 at [37] per Hodgson CJ in Eq, Sheller and Beazley JJA agreeing (Daniel)).
It was contended that the Senior Arbitrator failed to apply the correct test to whether employment was the main contributing factor to the aggravation or acceleration of the disease of lumbar canal stenosis.
In submissions filed in reply, Mr Halligan has attempted to raise additional grounds of appeal. In alleged reply to Mr El-Achi’s submission that the appeal was no more than an attempt to re-argue the merits of the case, as distinct from demonstrating how the Senior Arbitrator fell into error, Mr Halligan submitted that the Senior Arbitrator placed “too much emphasis” upon “an assumption that bus driving was an aggravating factor to a disease process”.
Further, he contended that the medical opinion supporting Mr El-Achi “assumed as accurate [Mr El-Achi’s] supposition that his work aggravated his condition”. Mr Halligan said that, in the circumstances of the case, the Senior Arbitrator’s decision contains a factual error (that is, a finding of fact not supported by the evidence) together with a failure to properly assess the lack of important evidence. Last, he submitted that the findings were inconsistent with the evidence.
Discussion and findings
Mr Halligan’s submissions, which I have found to be more than a little surprising, given that they raise several issues not argued before the Senior Arbitrator, cannot be accepted. They amount to an attempt to conduct the appeal as a rehearing, with entirely new arguments in support of the appellant’s position, something that is expressly forbidden in a s 352 appeal.
To put Mr Halligan’s submissions on appeal in their proper context, it is appropriate to consider how he conducted the arbitration. Dealing with the injury and main contributing factor issues, he made the following points at the arbitration:
(a) section 4, as amended, required the Senior Arbitrator to identify sufficient evidence in Mr El-Achi’s case that pointed to the work conditions “as giving rise to this lumbar condition and that that employment was the main contributing factor” (T9.4);
(b) Dr Bodel referred to many decades of bus driving causing an aggravation, acceleration and exacerbation of the disease, but did not refer to Mr El-Achi’s employment having been the main contributing factor (T9.33). This left the Senior Arbitrator to resolve the matter “on the basis that there is no main contributing factor emerging from the workplace” (T10.4);
(c) there was an “inevitability” (based on Dr Bodel’s evidence) that Mr El-Achi was going to come to surgery even without the superimposition of his work as a bus driver (T11.17);
(d) what Dr Casikar was saying was, in effect, precisely what Dr Bodel was saying, perhaps in different language, that the constitutional components to Mr El-Achi’s spinal condition is “the real mischief that has brought about his predicament” (T11.32);
(e) Dr Rifi’s opinion, which was that Mr El-Achi’s employment was “a direct cause of his lumbar condition that led over time to the development of Spinal Canal Stenosis”, was “out of left field somewhat” (T12.1) and would be rejected out of hand because it did not come close to any realistic understanding of the history of Mr El-Achi’s condition (T12.23);
(f) the Senior Arbitrator would have difficulty, based on that evidence, (in finding) “that section 4 has been overcome in its amended form” (T12.30);
(g) Dr Bodel, who enjoyed a reputation of confidence in the jurisdiction, was one whose report could be “relied upon” (T12.35) and if he wanted to say that this (the employment) was a main contributing factor he would have said so (T13.1), and
(h) the words main contributing factor connote the ordinary English meaning and that “main” must mean “predominant” (T13.5).
Mr Halligan then addressed on the quantum of any award Mr El-Achi may receive. In submissions in reply, he made the following points:
(a) the fact that there is some aggravation caused by the driving of the bus does not mean that all Mr El-Achi has to prove is “any aggravation in the absence of some other stimulus” (T30.28);
(b) in light of the development of Mr El-Achi’s spinal canal stenosis, it could not be said that “the driving of the bus was the main contributing factor” (T31.7), and
(c) Mr El-Achi said that it was only after discussing it with Dr Mobbs that he then formed the view that it was related to bus driving (T31.11). He did not say, for example, that over periods of time he was suffering an accumulation of symptoms that came to a point where he had to stop working (T31.17).
The above summary demonstrates that, at the arbitration, Mr Halligan made no submissions on the following:
(a) Mr El-Achi’s history of diabetes;
(b) the significance of the clinical notes from 2005 to 2013 or the absence of a complaint of back pain in the context of bus driving;
(c) the “hypothesis” that the role of bus driving causing an aggravation came from Mr El-Achi searching for “something to blame”;
(d) the evidence from Dr Mobbs making “scant” reference to an aggravation;
(e) the need to assess the relative weight of employment as a contributing factor to the aggravation or acceleration of the disease compared to that of non-employment factors;
(f) the alleged “significant aggravation” of the underlying disease leading to surgery on 8 September 2014;
(g) the onset of severe symptoms while on holiday and then the need to consider the circumstance likely to result in the onset of such severe symptoms (such as walking, the natural progression of the disease process while doing so, and the possibility of the main contributing factor being other than employment);
(h) the relevance of Badawi, or the approach in that case, and
(i) the relevance of Lobley and Daniel, or the principles in those cases.
It is in light of the submissions made at the arbitration that the Senior Arbitrator’s decision must be assessed for error. Most of the points argued on appeal were not argued before the Senior Arbitrator and he did not err in not considering them. It is not an error for an Arbitrator not to deal with an issue not argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell)). Nevertheless, I will consider each of Mr Halligan’s points. Before doing so, it is appropriate to set out the Senior Arbitrator’s reasons and the evidence.
The Senior Arbitrator started his analysis by summarising Mr El-Achi’s evidence, which Mr Halligan has largely ignored. He said, at T33.8:
“[Mr El-Achi’s] statement dated 29 May 2015 describes his duties with the [appellant] as a full-time bus driver. He said that he undertook the same routine since the late 1970s. He said on a daily basis that routine involved significant amounts of sitting, often with poor posture, and driving a big steering wheel which involved turning quite quickly and often reacting to traffic. He said that old buses in particular had very poor seating with a very poor suspension. He said that he would frequently feel sore in his back after sitting in such seats for days on end. He said he was also required to change gears on buses and the buses did not have power steering.
Being a bus driver through the 70s, 80s and 90s he described as a ‘physical job’ and said he could often not stand or sit at will. He said he would experience frequent pains in his back. He said he never really experienced back pain other than when he was driving, particularly for long periods of time. He went on to describe the process of turning the steering wheel during the 70s and 80s as being ‘like you were wrestling with the steering wheel’.
He said that in recent times buses had become easier to drive but there was still prolonged sitting with poor posture as well as continual use of the accelerator and brake and the need to turn to take money or talk to passengers or otherwise turn to check his surroundings. He said this involved his back being engaged in awkward motions and in the sustaining by him of awkward postures for lengthy periods of time.
[Mr El-Achi’s] statement went on to describe the onset of his back symptoms. He said that he first had lower back pain which he reported at work in around 2003. He said that around July 2009 he attended Canterbury Hospital complaining of a burning sensation in his left leg and was kept in hospital for approximately four to five days. He continued to see his GP.
He said that in late 2013 his condition worsened. He began to experience more significant back pain and increasing pain in his legs. His statement went on to describe his problems bringing him to surgery, which was carried out by a neurosurgeon, Dr Mobbs, on 8 September 2014. He said he believed that his duties as a bus driver had significantly exacerbated and caused his back condition. That is of some relevance as regards any association in [Mr El-Achi’s] mind between his activities and the symptoms, although he is not, of course, in a position to venture a medical opinion on causation.”
This summary was consistent with Mr El-Achi’s statement and has not been challenged as being inaccurate.
After noting the surgery performed by Dr Mobbs (laminectomy and rhizolysis at the L3/4 and L4/5 levels), and that Mr El-Achi had been off work since he stopped work for the surgery, the Senior Arbitrator referred to Mr El-Achi’s claim form, which attributed his back problems to the “nature and conditions of being a bus driver”. The Senior Arbitrator said that Mr El-Achi had been a bus driver with the appellant, or its predecessors in title, for approximately 36 years and that his evidence of his duties had not been contradicted or challenged. In these circumstances, the Senior Arbitrator correctly observed that the issue was “largely a medical one” (T35.16).
Turning to the medical evidence, the Senior Arbitrator noted the “Background History” recorded by Dr Mobbs in his report of 17 December 2013, namely, that “[w]ith [Mr El-Achi’s] work as a bus driver over several decades, he states that this has impacted negatively on his lower back” (T35.20). He also recorded (at T35.30) the following statement by Dr Mobbs, in a report addressed to Dr Ullman on 4 September 2014 in which surgery was recommended:
“With his work as a bus driver, this has probably been a contributing factor to his lumbar degenerative condition, and he should take a good 4–6 weeks off work following the surgery to maximise his rehabilitation and outcome.”
The Senior Arbitrator then considered the evidence from Dr Rifi. In a report dated 26 February 2015, Dr Rifi noted that Mr El-Achi started work with the appellant as a young man and, at that time, did not have pre-existing degenerative disease. Dr Rifi was of the opinion “that [Mr El-Achi’s] employment [was] a direct cause of his Lumbar condition that led over time to the development of Spinal Canal Stenosis” (T36.9).
On the relevance of Mr El-Achi’s diabetes, something that Mr Halligan made no submissions about, the Senior Arbitrator noted that Dr Rifi expressly rejected a view raised by Dr Casikar as to the cause of Mr El-Achi’s peripheral neuropathy. Dr Rifi said that the peripheral neuropathy was caused by spinal canal stenosis and not by diabetes, which the Senior Arbitrator acknowledged that Mr El-Achi suffered from, but which was, on the evidence from Dr Rifi, “well under control” (T36.18).
The above summary was consistent with Dr Rifi’s evidence in his report of 26 February 2015, addressed to Mr El-Achi’s solicitors, where he wrote:
“You have asked me to respond to Dr Casikar’s findings and opinion:
Q1 I DO NOT agree with Dr Casikar’s findings and opinions.
You have asked me to provide my opinion regarding Dr Casikar’s report:
Mr El-Achi has been employed as a Bus Driver with NSW State Transport since 1978; when Elia started working as a bus driver he did not have a pre existing degenerative disease to be aggravated by his employment. I am of the opinion that his employment is a direct cause of his Lumbar condition that led overtime to the development of Spinal Canal Stenosis.
His peripheral neuropathy IS caused by his Spinal Canal Stenosis and not by his Diabetes as his diabetes is well under control with [a] normal random Blood Sugar Level and [a] HBA1C [that] is below 7.
In the presence of his Spinal Canal Stenosis we should not ascertain that his peripheral neuropathy is caused by his Diabetes but rather the mechanical pressure on his spinal canal is the cause of his leg symptoms.
…
It is my opinion that [the] State Transit Authority is liable for his condition.” (emphasis in original)
This evidence strongly supports a causal connection between Mr El-Achi’s duties with the appellant and the condition in his spine. It was evidence that the Senior Arbitrator was entitled to take into account in his assessment of the claim, though it was not conclusive because Dr Rifi was directing himself to s 4(b)(i), which deals with a disease contracted in the course of employment, and not s 4(b)(ii), which deals with the aggravation, acceleration, exacerbation or deterioration of a disease.
Turning to Dr Bodel’s evidence, which the Senior Arbitrator described as providing the “dominant medical support” (T36.20) on which Mr El-Achi relied, the Senior Arbitrator quoted the following passage from Dr Bodel’s report of 19 March 2015:
“Vertebral canal stenosis is primarily a constitutional ailment. There are a number of factors contributing to this and that includes congenital short pedicles, degenerative change in the facet joints, thickening of the ligamentum flavum and the bulging of the discs. He has a strong genetic underlying predisposition to developing this condition but many decades of bus driving in my view have caused aggravation, acceleration, exacerbation and deterioration of that disease process leading to the need for surgery.”
Dr Bodel went on to say that it was probable that Mr El-Achi would have needed surgery in any event, even if he had not worked as a bus driver. However, the “nature and conditions of [Mr El-Achi’s] work in general has brought forward the timing of this”. In his supplementary report dated 4 May 2015, Dr Bodel said that “the nature and conditions of Mr El-Achi’s work over many years has caused [sic, been] a significant aggravating factor to that pathology and led to aggravation, acceleration, exacerbation and deterioration of the disease process, bringing forward the timing of the inevitable surgery”. Though it was difficult to estimate by how much the surgery had been brought forward, Dr Bodel thought it was “within the three to five year timeline in this circumstance”.
The Senior Arbitrator interpreted this last sentence from Dr Bodel to mean that the timing of the surgery was brought forward by a period of three to five years as a consequence of the aggravation and acceleration which Dr Bodel considered had occurred (T37.24).
The Senior Arbitrator then considered the appellant’s medical case, which rested on reports from Dr Casikar. Dr Casikar said that Mr El-Achi has “chronic degenerative disease of the lumbar spine and lumbar canal stenosis” and “does not have any work-related medical condition”. He said that he did not agree with Dr Mobbs’ opinion that employment as a bus driver had contributed to Mr El-Achi’s spinal canal stenosis. Dr Casikar added:
“It is possible that over a period of time Mr El-Achi has probably aggravated his pre-existing degenerative disease because of his driving activities. This is purely a speculation. It is very difficult to testify the opinion that driving a bus has been a main contributing factor to the spinal degenerative disease. It is reasonable to accept that driving a bus can produce discogenic pain. His main problem was progressive claudication due to lumber canal stenosis. Lumbar canal stenosis is not produced by driving a bus.” (emphasis added)
Dr Casikar added, in the immediately following paragraph in his report:
“As I have indicated above, Mr El-Achi’s employment with [the appellant] as a Bus Operator has not led to the aggravation of a pre-existing condition. It is possible that Mr El-Achi’s back pain to some extent could be attributed to his employment; however, his main problems are degenerative disease of the lumbar spine, lumbar canal stenosis and diabetic neuropathy. None of these medical conditions are as a consequence of his employment.” (emphasis added)
The Senior Arbitrator accepted a submission put on behalf of Mr El-Achi that Dr Casikar did not draw a clear distinction between considering whether Mr El-Achi’s duties led to aggravation or acceleration (of the disease of spinal canal stenosis), as opposed to whether duties contributed to the underlying degenerative condition of spinal canal stenosis. The Senior Arbitrator noted that Dr Casikar’s references to the “possibility of aggravation … do seem to show some level of internal contradiction” (T38.29).
The Senior Arbitrator’s observation about the internal contradiction in Dr Casikar’s opinions was consistent with the evidence (see [55] and [56] above) and was important in his overall assessment of the evidence. Mr El-Achi’s case was not that his work had caused his spinal canal stenosis but merely that, as per Dr Bodel’s evidence, it had aggravated and/or accelerated it. While Dr Casikar seems (at one point) to have conceded the latter, though his evidence on that was inconsistent, he focused mainly on the former. This was demonstrated by his comments that Mr El-Achi does not have “any” work-related medical condition, that there was no evidence that driving a bus “produces” lumbar canal stenosis and that none of the medical conditions suffered by Mr El-Achi “are as a consequence of his employment”.
In his supplementary report, dated 13 July 2015, Dr Casikar said:
“I do not agree with the opinion expressed by Dr Rifi and Dr Bodel that driving a bus was the main contributing factor to the aggravation of the underlying disease process that is neurogenic claudication. Mr El-Achi has lumbar canal stenosis. This is a congenital problem produced by short pedicles. While driving a bus can produce back pain, it does not aggravate the pre-existing lumbar canal stenosis. There is no evidence to support [the proposition] that driving a bus produces lumbar canal stenosis.”
Dr Casikar added that back pain is distinct from the underlying disease process, which is pre-existing lumbar canal stenosis. He said it was necessary to make a distinction between three particular pathologies: back pain, which is a common symptom that most people suffer in their lifetime; degenerative disease, which is a genetically determined disease that can also produce back pain “due to the natural progression of the degenerative disease and regulated by calcium channels”; and lumbar canal stenosis, which is a congenital condition that can produce thickening of the annular ligament within the spinal canal and aggravate the pre-existing lumbar canal stenosis. Lumbar canal stenosis could produce both back pain and more importantly neurogenic claudication. Dr Casikar referred to, and seemed to rely on, the Twin Study: Contributions to a Changing View of Degeneration published in the Spine Journal in 2009.
Dr Casikar explained that these “different mechanisms” were not related and that “[e]xcept for back pain as a consequence of employment, degenerative disease is not related to the nature of an individual’s employment”. (I note that this opinion relates to the cause of the disease and not the issue of aggravation or acceleration of the disease in s 4(b)(ii).)
In a report dated 8 September 2015, Dr Bodel responded to Dr Casikar’s views. He wrote:
“I have carefully read the report from Dr Casikar and the copy of the report from the Spine Journal dated in 2009. The twin studies are a fascinating study using ‘twins’ over a research period dating back to 1991. The use of such studies where twins have worked in different environments can confirm, as this study seems to confirm, that the findings of abnormality on [sic, in] the spine in this circumstance in the form of degenerative change is predominantly and almost exclusively caused by genetic factors. That is a well recognised clinical entity. That is to say that this gentlemen has developed vertebral canal stenosis primarily as a consequence of his genetic make-up.
In my view, however, although the study clearly indicates that vibration, such as when driving machinery does not cause the onset of the degenerative disc disease, it can cause aggravation, acceleration, exacerbation and deterioration of that disease process.
I am satisfied that that is the case in this circumstance and therefore I see no reason to alter my previous assessment in this matter. The underlying pathology is genetically based but the ‘injury’ in the legal sense is the aggravation, acceleration, exacerbation and deterioration caused by the nature of [Mr El-Achi’s] work in general.”
Noting this additional evidence from Dr Casikar and Dr Bodel, the Senior Arbitrator said that he preferred the evidence of Dr Bodel, “supported as it was in a general sense by the opinions of Dr Mobbs and Dr Rifi, to the opinion of Dr Casikar” (T39.33). He added, at T40.1, that:
“Dr Casikar’s views … tended to demonstrate some confusion in the way he approached whether there had been the aggravation of a disease process occasioned by [Mr El-Achi’s] duties, as opposed to whether the disease process itself had been caused by [Mr El-Achi’s] duties.
The preponderance of medical evidence is consistent with the views of Dr Bodel. I find Dr Bodel’s views to be more carefully expressed and more logical than those of Dr Casikar. In all of the circumstances I prefer them to the views of Dr Casikar and I accept the opinion of Dr Bodel in this regard.”
The Senior Arbitrator then explained that Mr El-Achi relied on s 4(b)(ii), which deals with the aggravation, acceleration, exacerbation or deterioration of any disease, and not s 4(b)(i), which deals with a disease that is “contracted by a worker in the course of employment”. Dealing with Mr Halligan’s submission as to what needs to be proved for the purpose of establishing main contributing factor for the purposes of s 4(b)(ii), the Senior Arbitrator referred to Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313 (Murray).
In that case, Einstein J (Hodgson and Santow JJA agreeing) rejected as “misconceived” ([62]) the employer’s submissions that the substantial contributing factor test in s 9A was only satisfied if employment was a substantial contributing factor to a “fully blown injury”. His Honour pointed out that the submissions failed to recognise that in s 4(b)(ii) the only compensation is for the effect of the aggravation and not for the effect of the original non-aggravated disease.
His Honour explained that the trial judge in Murray correctly approached the question of construction on the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition.
The Senior Arbitrator said that “similar principles” (T41.29) (to those explained in Murray) apply to what must be demonstrated for the purpose of establishing the aggravation or acceleration of a disease pursuant to s 4(b)(ii) in its current form. He added, at T41.32:
“It is necessary, for an applicant to succeed, that the applicant demonstrate that the employment was the main contributing factor to the aggravation injury. It is not necessary that the applicant establish that the employment was the main contributing factor to the disease process as a whole.”
The Senior Arbitrator concluded, at T42.6:
“Having regard to the medical evidence which I have accepted, the consequence of this is that [Mr El-Achi] succeeds in establishing an injury pursuant to section 4(b)(ii) based upon the aggravation and acceleration of the disease process to which I have referred. I am satisfied, on the evidence overall, that [Mr El-Achi’s] employment duties represent the main contributing factor to that aggravation, albeit they may not represent the main contributing factor to the underlying disease process.
I accordingly find that the applicant suffered injury to his lower back involving the aggravation and acceleration of a disease with a deemed date of injury of 8 September 2014.”
As I said earlier in this decision, Mr Halligan’s submissions are essentially an attempt to conduct the appeal as a rehearing. To the extent that Mr Halligan’s submissions might be seen as a broad and general attempt to demonstrate that the Senior Arbitrator’s conclusions were erroneous, they cannot be accepted.
To determine the issues on appeal, it is not necessary to examine the difference between a substantial contributing factor in s 9A and the main contributing factor in s 4. That is because the case mainly, but not wholly, turned on the medical evidence and not on the precise meaning of main contributing factor. Moreover, Mr Halligan did not submit to the Senior Arbitrator that “main” means “chief” or “principal”. He submitted that the words main contributing factor “connote” (T13.4) the ordinary English meaning and that “main” must mean “predominant”.
On any view of the meaning of “main”, the evidence from Drs Bodel, Mobbs and Rifi, which it was open to the Senior Arbitrator to accept, and which he did accept, comfortably established that Mr El-Achi’s employment was the main contributing factor to the aggravation or acceleration of the pre-existing disease in Mr El-Achi’s lumbar spine. Contrary to Mr Halligan’s submission at the arbitration (see [40(a)] above), and Dr Casikar’s apparent understanding, the evidence did not have to establish that the work gave rise to the condition in Mr El-Achi’s lumbar spine.
Though it would have been helpful if Dr Bodel had expressed his opinion in the terms of the legislation, the fact that he did not did not mean that the Senior Arbitrator erred in accepting his evidence. That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process. The Senior Arbitrator properly engaged in that process and the conclusions he reached were open on the evidence.
The submission that if Dr Bodel thought that Mr El-Achi’s work was the main cause of the aggravation then he would have said so was presumably meant to establish that the Senior Arbitrator erred in accepting the doctor’s evidence. Such a submission is without substance. The Senior Arbitrator’s task was to assess the doctor’s evidence, weigh that evidence against the other expert evidence, and determine whether Mr El-Achi had received the injury alleged, that is, a s 4(b)(ii) injury. He did that.
Mr Halligan made no submission at the arbitration about the significance of the clinical notes from 2005 to 2013 and it is unclear how these notes are said to establish error by the Senior Arbitrator. The Senior Arbitrator referred extensively to Mr El-Achi’s unchallenged evidence about the development of his symptoms (see the passages quoted at [44] above). In summary, the main points from that evidence were:
(a) Mr El-Achi’s duties involved prolonged sitting, often with poor posture;
(b) the old buses had very poor seating with very poor suspension;
(c) Mr El-Achi would frequently feel sore in his back after sitting in such seats for days on end;
(d) being a bus driver in the 70s, 80s and 90s was a “physical job” where he could not sit or stand at will and he would experience frequent pains in his back;
(e) Mr El-Achi never really experienced back pain other than when he was driving, particularly for long periods of time;
(f) though buses became easier to drive in recent times, there was still prolonged sitting with poor posture, as well as continual use of the accelerator and brake and the need to turn to take money or talk to passengers, which involved his back being engaged in awkward motions and postures for lengthy periods;
(g) Mr El-Achi first had lower back pain which he reported at work in around 2003, and
(h) Mr El-Achi believed that his duties as a bus driver had significantly exacerbated and caused his back condition.
In light of this unchallenged evidence, it is not open to argue for the first time on appeal that the failure to mention bus driving in the clinical notes or to Canterbury Hospital means that the Senior Arbitrator erred in finding that the test of main contributing factor was satisfied. Had Mr Halligan raised these matters at the arbitration, they may have been the subject of an application to call further evidence from Mr El-Achi. At the least, they would have been the subject of further submissions. It is improper to attempt to raise them for the first time on appeal. Nevertheless, having considered them, I am satisfied, having regard to Mr El-Achi’s evidence and the evidence of Dr Bodel that they make no difference to the outcome.
The submission that the claim rests “entirely” on Mr El-Achi’s “opinion of a nexus existing between his work and the alleged aggravation fixed at the time he consulted with Dr Mobbs and seemingly made through a process of elimination that his condition was related to bus driving” is plainly wrong and is rejected. The claim rests partly on Mr El-Achi’s evidence, but mainly on the medical evidence.
The submission that the “hypothesis” of the role of bus driving causing an aggravation came from Mr El-Achi’s search for something to blame was not made at the arbitration. As it raises an issue that could be dealt with by calling further evidence, it is not a matter that can be raised for the first time on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481). In any event, it ignores Mr El-Achi’s unchallenged evidence that he had lower back pain in 2003, which he reported to work and for which he had three days off work. He believed that it was put through to workers compensation but was not entirely sure (I note that Dr Bodel recorded that Mr El-Achi took sick leave for these days, but nothing turns on this). It is simply untenable to suggest that Mr El-Achi is searching for something to blame.
The attack on the evidence from Dr Mobbs was not made at the arbitration and cannot be made for the first time on appeal. In any event, the attack is without substance. The submission that Dr Mobbs made “scant” reference to aggravation does not advance the appellant’s position. The Senior Arbitrator only relied on the evidence from Dr Mobbs, which was that Mr El-Achi’s work as a bus driver had probably been a contributing factor to his lumbar degenerative condition, to say that it supported “in a general sense” the evidence of Dr Bodel. That statement was correct.
The complaint that Dr Mobbs did not outline any historical detail that might have informed him of what it was about bus driving that was relevant was not a submission made at the arbitration and cannot be made for the first time on appeal. In any event, it is without substance. Dr Mobbs took a history that Mr El-Achi worked as a bus driver over several decades and that he (Mr El-Achi) said that it had impacted negatively on his lower back.
All that is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x‑rays and other tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 per Beazley JA (as her Honour then was) at [85] (Giles and Tobias JJA agreeing)).
The history recorded by Dr Mobbs, his findings on examination, and the findings in the radiology provided a sound basis for the Senior Arbitrator to consider the doctor’s opinion as being generally supportive on the issue of causation. However, as Dr Mobbs did not directly address the aggravation issue, it was not the main evidence upon which the Senior Arbitrator relied.
The complaint that the Senior Arbitrator’s reasons do not include a discussion of the relative weight of employment as a contributing factor to the aggravation or acceleration of the disease compared to that of non-employment factors is, at least, an allegation of error by the Senior Arbitrator. However, it is without merit and is rejected.
The obligation to give reasons has to be considered in light of the issues raised by the parties (Bell at [22]). Moreover, the adequacy of the reasons depends upon the issues, and nature of the proceedings, in any individual case (Woolworths Ltd v Warfe [2013] VSCA 22 at [131]). While Mr Halligan did argue that Mr El-Achi had not established that his employment was the main contributing factor to his aggravation injury, he did so by relying only on the matters summarised at [40] and [41] above.
Mr Halligan made no submissions about the relative weight of employment as a contributing factor compared to non-employment factors. In particular, he did not refer to, or rely on, the fact that Mr El-Achi experienced symptoms while on holidays. He identified no other factors that caused the aggravation and/or acceleration of the disease. Therefore, the Senior Arbitrator did not err in not discussing the relative weight of employment as a contributing factor compared to other factors.
The Senior Arbitrator considered and accepted Mr El-Achi’s unchallenged evidence as to the physical nature of his duties and the development of symptoms while performing those duties. He then considered and accepted the evidence from Dr Bodel. It was open to him to do so. He did not refer to Mr El-Achi’s evidence that he did not engage in any physical recreational pursuits or exercise, other than walking from time to time, but that involved no error because that evidence supports, rather than undermines, the Senior Arbitrator’s conclusion. (I note that there is no evidence that walking played any role in causing or aggravating Mr El-Achi’s condition.)
The submission that the Senior Arbitrator should have given “greater emphasis” to Mr El-Achi’s holiday time was not made at the arbitration and cannot be made for the first time on appeal. In any event, it is without substance. Dr Bodel expressly referred to Mr El-Achi experiencing symptoms while on holidays, without provocation, and it clearly made no difference to his opinion. In the absence of evidence that some particular activity caused the increase in symptoms while Mr El-Achi was on holidays, and there is none, the mere fact that he had symptoms at that time is of little weight in determining if the decades of bus driving were the main contributing factor to the aggravation and acceleration of his disease. The Senior Arbitrator’s lack of emphasis on Mr El-Achi’s holiday time involved no relevant error.
It is correct that, as Mr Halligan submitted on appeal, the test is one of causation. It is also correct that the fact that Mr El-Achi’s employment placed him at the employer’s premises does not prove causation. However, the submission that the Senior Arbitrator emphasised the “perception of bus driving tasks without regard to other indicia including holiday activity” has ignored the evidence and the Senior Arbitrator’s reasons. It is rejected.
The Senior Arbitrator did not emphasise the “perception” of bus driving tasks. He referred to, and relied on, Mr El-Achi’s unchallenged evidence of the physical requirements of his duties as a bus driver. That is, consistent with Badawi, the Senior Arbitrator had regard to the nature of the work performed and the particular tasks of the work. Mr Halligan made no submissions about “other indicia”, be it holiday activities or any other activities, as being a potential cause of the aggravation injury. He relied on the evidence from Dr Casikar, which the Senior Arbitrator did not accept, it “show[ing] some level of internal contradiction” (T38.30). I add that, as noted above, there is no evidence of any holiday activities having caused or contributed to Mr El-Achi’s symptoms.
The reliance on Lobley and Daniel demonstrates a fundamental misunderstanding of the issues involved. Those cases concerned a claim for compensation for a loss of hearing of such a nature as to be caused by a gradual process under s 17 of the 1987 Act (boilermaker’s deafness or industrial deafness). The issue in each was whether, at the time when notice of injury was given, the worker had been “employed in an employment to the nature of which the injury was due”.
In considering that question, attention is directed not to whether the employment then engaged in actually caused the injury, but to whether the “tendencies, incidents or characteristics” of that employment were of a type which could give rise to the injury in fact suffered (Smith v Mann (1932) 47 CLR 426; Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR(NSW) 269 and Commonwealth v Bourne (1960) 104 CLR 32).
In the present case, the issue is not whether the tendencies, incidents or characteristics of the work of a bus driver could give rise to an aggravation of spinal canal stenosis, but whether in fact Mr El-Achi’s employment was the main contributing factor to the aggravation and acceleration of his pre-existing disease. For the reasons explained above, the Senior Arbitrator concluded that it was. That conclusion was open on the evidence and involved no relevant error.
Without identifying the “correct test” that the Senior Arbitrator should have applied, the submission that he failed to apply the correct test was meaningless. The Senior Arbitrator determined that, based on an analysis of all the evidence, Mr El-Achi’s employment was the main contributing factor to the aggravation and acceleration of the disease in his lumbar spine. In other words, he was satisfied that the test of main contributing factor was satisfied. That finding was open on the evidence.
Though Mr Halligan has not sought leave to raise the additional issues identified in his submissions in reply, which was improper, as there is no prejudice to Mr El-Achi I will deal with them. The submission that the Senior Arbitrator placed too much emphasis upon “an assumption that bus driving was an aggravating factor to a disease process” is based on the false premise that the Senior Arbitrator made that assumption. He clearly made no such assumption and Mr Halligan has referred to nothing in the decision to support the contention that he did. As the above analysis demonstrates, the Senior Arbitrator based his decision on the unchallenged evidence from Mr El-Achi and a detailed consideration of the medical evidence.
The submission that the medical opinion supportive of Mr El-Achi “assumed as accurate [Mr El-Achi’s] supposition that his work aggravated his condition” seems to imply that the medical experts did not express their opinions, but merely repeated and accepted Mr El-Achi’s assertion on causation. That submission, unsupported by any reference to the evidence, is plainly wrong and is rejected.
Dr Bodel took a history that Mr El-Achi worked as a bus driver since 1979 and that his back symptoms started in 2003 and were reported at work at that time. He also had a history of Mr El-Achi experiencing symptoms while on holidays. His opinion was that Mr El-Achi’s many decades of bus driving had caused an aggravation, acceleration, exacerbation and deterioration of the degenerative disease in his lumbar spine leading to the need for surgery. He made no assumption about the cause of the aggravation or acceleration of Mr El-Achi’s condition.
As previously noted, Dr Mobbs took a history that Mr El-Achi said that his work as a bus driver “impacted on his lower back”. However, Dr Mobbs expressed his opinion, as a medical expert, that the work as a bus driver had “probably been a contributing factor to [Mr El-Achi’s] lumbar degenerative condition”. He too made no assumptions about the cause or aggravation of Mr El-Achi’s condition.
Dr Rifi said that Mr El-Achi had worked as a bus driver since 1978, that when he started as a bus driver Mr El-Achi had no pre-existing degenerative disease and that it was his opinion that Mr El-Achi’s employment was a direct cause of his lumbar condition. As with Dr Bodel and Dr Mobbs, Dr Rifi made no assumptions about causation.
As previously noted, the Senior Arbitrator was entitled to accept Dr Bodel’s evidence, supported by the opinions of Dr Mobbs, the treating surgeon, and Dr Rifi, the treating general practitioner.
Having regard to the above matters, the submission that the Senior Arbitrator erred in making a finding of fact not supported by the evidence is untenable and is rejected.
The submission that the Senior Arbitrator failed to properly assess “the lack of important evidence” was unsupported by any reasoned argument and is without foundation. If this was a reference to Dr Bodel’s failure to refer to the phrase main contributing factor, it has been dealt with above at [72]. The above summary of the Senior Arbitrator’s reasons demonstrates that he assessed the relevant evidence and issues in detail.
Last, the submission that the Arbitrator’s findings were inconsistent with the evidence was not supported by any reasoned argument and is rejected. This could only have been a reference to the decision being inconsistent with Dr Casikar’s evidence. For reasons given (summarised at [104] below), the Senior Arbitrator did not accept Dr Casikar’s evidence. That conclusion was open and involved no error.
GROUND 3: MEDICAL EVIDENCE
Submissions
Mr Halligan submitted that the Senior Arbitrator failed to consider the pathologies present in Mr El-Achi’s spine, set out in Dr Casikar’s report of 13 July 2015. Dr Casikar said that while driving a bus can produce back pain, it does not aggravate the pre-existing lumbar canal stenosis. He said that there was no evidence to support the conclusion that driving a bus produces lumbar canal stenosis. Aggravation of back pain can occur in various forms of physical activities. That is usually muscular pain. However, back pain is distinct from the underlying disease process. Dr Casikar identified three pathologies (see [60] above).
Discussion and findings
The assertion that the Senior Arbitrator failed to consider the pathologies present in Mr El-Achi’s spine set out in Dr Casikar’s supplementary report of 13 July 2015, which I have summarised at [60] above, is without merit. Mr Halligan made no submissions on this part of Dr Casikar’s evidence and the Senior Arbitrator did not err in not expressly referring to it. Merely referring on appeal to further passages of Dr Casikar’s evidence, to which Mr Halligan did not take the Senior Arbitrator, does not come close to establishing relevant error. This ground of appeal is rejected. The Senior Arbitrator was entitled to accept Dr Bodel’s evidence and to reject Dr Casikar’s evidence.
As explained above, the Senior Arbitrator preferred Dr Bodel’s evidence and did not accept Dr Casikar’s evidence because:
(a) Dr Casikar’s evidence “show[ed] a level of internal contradiction” (T39.30);
(b) Dr Casikar’s views “tended to demonstrate some confusion in the way he approached whether there had been the aggravation of a disease process occasioned by [Mr El-Achi’s] duties, as opposed to the disease process itself had been caused by [Mr El-Achi’s] duties” (T40.2);
(c) the preponderance of medical evidence was consistent with the view of Dr Bodel (T40.8), and
(d) he found Dr Bodel’s views to be more carefully expressed and more logical than those of Dr Casikar (T40.10).
The above reasons provided a sound basis for preferring Dr Bodel’s evidence to Dr Casikar’s evidence and involved no error. The Senior Arbitrator did not have to refer to every line in Dr Casikar’s confused and contradictory evidence. He had to deal with the issues presented by the parties. He did that.
I note, though I do not base my decision on it, as neither side has addressed on it, that Dr Casikar’s evidence could also have been rejected for a further reason, namely, that it involves a fundamental misunderstanding of the meaning of “aggravation” in s 4. It has been long established, by the highest authority, that there is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 637 and 639 (Semlitch)).
As was pointed out by the Full Court of the Federal Court in Commonwealth of Australia v Beattie [1981] FCA 88; 35 ALR 369 at 377–378, Semlitch establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case (Mellor v Australian Postal Corporation [2009] FCA 504 at [23]). In the present case, for reasons stated, the Senior Arbitrator determined that fact against the appellant. He was entitled to do so.
Dr Casikar’s focus mainly, but not entirely, on whether bus driving “produced” the spinal canal stenosis ignored the basic principle that an aggravation of a disease occurs when it is made more grave or more serious in its effects upon the worker notwithstanding that there has been no change in the underlying pathology.
GROUND 4: CAUSE OF INCAPACITY
Submissions
Mr Halligan again referred to Dr Casikar’s evidence of the three different mechanisms (see [60] above). He said that except for back pain as a consequence of employment, degenerative disease is not related to the nature of an individual’s employment.
Mr Halligan referred to Dr Casikar’s evidence that “the fact that Mr El-Achi developed back pain when he was on holiday is a strong indicator that the discogenic pain and pain due to lumbar canal stenosis can occur any time and they are unrelated to the nature of employment” and supported his conclusion that Mr El-Achi’s employment was not the main contributing factor to the aggravation of or his pre-existing lumbar canal stenosis.
Mr Halligan submitted that Mr El-Achi’s lumbar canal stenosis and his neurogenic claudication are independent of his employment with the appellant and that it is very likely that he could have developed the symptoms at this stage of his life irrespective of his employment. He contended that Dr Bodel failed to address the competing pathologies referred to by Dr Casikar and failed to address the significance of the fact that Mr El-Achi’s symptoms, particularly in respect to the sudden onset of left leg and low back pain, came on without any history of an incident or suggestion that the symptoms were related to the driving duties.
Mr Halligan again referred to the “incident” in 2009 when Mr El-Achi attended Canterbury Hospital with lower back pain and left leg pain, but with no history of any incident or aggravation in the course of employment. He added that, while overseas, Mr El-Achi developed back pain and leg pain consistent with the history of the disease process stated by Dr Casikar. The onset of symptoms that ultimately required surgery were felt by Mr El-Achi during annual leave from 30 June 2014. At that time, he had not reported symptoms as a result of his employment.
Mr Halligan submitted that the Senior Arbitrator’s reasons do not include a discussion “to assess the relative weight of employment as a contributing factor to the aggravation or acceleration of the disease compared to that of that of non-employment factors”. Reference should have been made, so it was argued, to the circumstance in which the significant aggravation of the underlying disease occurred leading to the surgery on 8 September 2014.
Mr Halligan argued that a proper consideration would have included the circumstances resulting in the onset of severe symptoms while Mr El-Achi was on holidays and undertaking normal activities, including walking and the natural progression of the disease process while performing these activities “that was the main contributing factor to the significant increase in [Mr El-Achi’s] symptoms and not his employment activities prior to commencing leave on 30 June 2014”.
Discussion and findings
The above “submissions” are a repetition of matters argued in support of the first two grounds of appeal. They were not matters argued before the Senior Arbitrator and, as previously explained, he did not err in not expressly addressing them. Mr Halligan’s submissions at the arbitration were restricted to the narrow issues summarised at [40] and [41] above. For reasons given, which I have discussed above, and which disclose no error, the Senior Arbitrator did not accept Dr Casikar’s evidence.
As I have previously explained (see [84] above), given the way Mr Halligan presented the case at arbitration, it was not necessary for the Senior Arbitrator to assess the relative weight of employment as a contributing factor to the aggravation or acceleration of the disease compared to that of non-employment factors. Nor was it necessary for him to refer to the symptoms Mr El-Achi experienced while on holidays. As explained at [86] above, Dr Bodel was well aware that Mr El-Achi experienced symptoms while on holidays and it clearly made no difference to his opinion.
For the reasons explained in dealing with grounds 1 and 2, this ground of appeal is also rejected.
GROUND 5: SECTION 60(2A)
The legislation
Section 60(2A) of the 1987 Act provides:
“(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:
(a)the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b)the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c)the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d)the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.”
Submissions
Mr Halligan submitted that the Senior Arbitrator erred in deciding that Mr El-Achi’s obligation to seek approval for treatment may be viewed retrospectively when the language of the section does not permit that approach. He contended that the section “protects an employer from liability where prior approval is not given”. Moreover, he said that no allowance is expressed in the section for a retrospective evaluation. The “so called concept of post hoc ergo propter hoc has no place in the disposition of the claim”.
Discussion and findings
Mr Halligan’s submissions have ignored the words of the legislation, the relevant WorkCover Guides, and the terms of the Senior Arbitrator’s orders. The provision that an employer is not liable under s 60 to pay the cost of any treatment or service unless the insurer has given prior approval for that treatment or service does not apply to treatment provided within 48 hours of the injury or to “treatment or service that is exempt under the WorkCover Guidelines from the requirement for prior insurer approval” (s 60(2A)(a)).
The applicable WorkCover Guidelines are the WorkCover Guidelines for Claiming Compensation Benefits issued on 4 October 2013, which commenced on 20 September 2013. Those Guidelines apply to this claim. Part 3 of the WorkCover Guides is headed “Exemptions from Prior Approval for Medical and Hospital Treatment”. Part 3.1 sets out certain definitions.
Part 3.2, headed “Exemptions”, provides:
“The following treatments and services (and related travel expenses) are exempt from the requirement for prior insurer approval.
3.2.1 Workers Compensation Commission determination
3.2.1.1 Any treatment or service provided to an injured worker whereliability has been initially declined but where the Workers Compensation Commission [sic] or subsequently finds for the worker on liability and it is agreed or determined that the treatment or service provided was reasonably necessary.
3.2.1.2 Any treatment or service provided to an injured worker where there is a dispute about reasonably necessary treatment or service and the Workers Compensation Commission has found that the treatment or service provided was reasonably necessary.”
Thus, an employer is liable for the cost of reasonably necessary medical treatment or service where liability for that treatment or service has initially been disputed, but the Commission has “subsequently” found for the worker on liability and it is “agreed or determined” that the treatment or service “was reasonably necessary”.
In the present case, the appellant disputed liability for the cost of the surgery performed on 8 September 2014. That dispute was properly referred to the Commission. However, counsel for Mr El-Achi only asked the Senior Arbitrator to make a “general order under section 60 accompanied by a finding, if appropriate, that [the] surgery undergone by [Mr El-Achi] resulted, in the relevant sense, from the employment injury” (T1.40). Further submissions did not greatly illuminate that issue.
In the course of argument, the following exchange took place, starting at T14.13:
“MR HALLIGAN: And, in closing, I would simply remind you - not that you need reminding - about the predicament that we say [Mr El-Achi] is in in respect of the section 60 claim. They are my submissions.
SENIOR ARBITRATOR: Yes. In relation to section 60, one of the exceptions to the need for pre-approval provided in the relevant guidelines was if a matter has been the subject of decision by the Commission that that would relate probably to a specific item that was disputed and then the subject of decision. From a practical point of view if I were to decide that there should be a general order including the cost of surgery the reality is that the pre-approval argument probably doesn’t have much work to do, does it? I’m just not sure of the extent to which I need to deal with it.
MR HALLIGAN: Well, if the pre-approval argument doesn’t have any work to do then the guidelines can’t fly, can they?
SENIOR ARBITRATOR: Well, no, that would seem to be the situation.
MR HALLIGAN: Yes. So, therefore, we’re back to the basic terms of section 60(2A), because section 60(2A) says subject to the guidelines.
SENIOR ARBITRATOR: And the guidelines say that (2A) doesn’t - the exception to (2A) is when an expense is ordered by the Commission.
MR HALLIGAN: Yes. I see what you’re saying.
SENIOR ARBITRATOR: Yes.
MR HALLIGAN: But isn’t that talking retrospectively instead of prospectively?
SENIOR ARBITRATOR: Well, I think we’re dealing with prospectively at this stage.
MR HALLIGAN: Anyway, I’ve made my submission and no doubt you will give it the appropriate weight.
SENIOR ARBITRATOR: Indeed. I hadn’t proposed making specific orders other than - if [Mr El-Achi] succeeds other than that which was suggested at the outset.”
Later, the following exchange occurred, at T30.6:
“MR TANNER: Or perhaps I should address you in relation to section 60. The point is that the [appellant] has never accepted liability in this regard. Its position is documented in the section 74 notice and in my submission on a finding of liability entitlements under section 60 would flow.
SENIOR ARBITRATOR: I think that’s probably right, didn’t [sic] have to be left up to that process that dealt with, and if any evidence did develop they can be dealt with in due course.” (I have listened to the audio recording of the proceedings and have been unable to decipher the Senior Arbitrator’s comment.)
In his reasons, the Senior Arbitrator said, at T42.22:
“As regards section 60 of the Act there have been some exchanges recorded in the transcript. I will, consistent with what was asked of me, make an order that the respondent pay [Mr El-Achi’s] expenses pursuant to section 60 of the 1987 Act.
Having regard to the finding which I have made, I am satisfied that the surgery carried out by Dr Mobbs on 8 September 2014 resulted from the aggravation injury which I have found. Accordingly, I order that the expenses payable pursuant to section 60 should include reasonable expenses incurred in respect of the cost of such surgery and associated expenses.”
Thus, consistent with what he was asked to do, the Senior Arbitrator made a finding that the surgery resulted from the aggravation injury and ordered the appellant pay Mr El-Achi’s expenses pursuant to s 60, those expenses to include “the reasonable cost of and incidental to surgery carried out on 8 September 2014”. This was consistent with the Senior Arbitrator’s findings on causation in general, which have been confirmed. However, he did not make a finding that the cost of the surgery was reasonable.
It is now for the parties to agree that the cost of the surgery was reasonable. In default of agreement, it will be necessary for the matter to be relisted for further submissions and orders on that issue. Given the Senior Arbitrator’s findings, which have been confirmed on appeal, it is difficult to see that the cost of the surgery was not a reasonable s 60 expense. However, that is a matter for agreement or further determination.
In any event, s 60(2A) does not prevent the Commission ordering the payment of reasonably necessary treatment or service in circumstances where that treatment has been provided without the prior approval of the insurer and Mr Halligan’s submission to the contrary was clearly wrong. However, because of the restricted nature of the order made by the Senior Arbitrator, the question of the “reasonable cost” of Mr El-Achi’s surgery remains outstanding and must be agreed or, if not agreed, be the subject of a further determination before the appellant is liable for the cost of that surgery.
It would be surprising, given lack of success on appeal, if the parties were unable to reach agreement on this point. If the point is not agreed, and must be determined by the Commission, it will not be open to the appellant to argue that, based on Dr Casikar’s evidence, the surgery was not necessary as a result of the aggravation injury. The Senior Arbitrator has already determined that issue against the appellant and his finding has been confirmed on appeal.
CONCLUSION
The attempt to conduct the appeal as a rehearing was most unsatisfactory and contrary to the express terms of s 352. Similarly, the attempt to raise new issues in the submissions in reply was also unsatisfactory. The appeal largely ignored the relevant evidence, the Senior Arbitrator’s reasons and long established and binding authority dealing with s 4(b)(ii) injuries. The Senior Arbitrator’s decision is confirmed and the appeal is unsuccessful.
DECISION
The Senior Arbitrator’s determination of 11 September 2015 is confirmed.
Bill Roche
Acting President
16 December 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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