State Transit Authority of NSW v Bailey
[2005] NSWWCCPD 84
•11 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Transit Authority of NSW v Bailey [2005] NSW WCC PD 84
APPELLANT: State Transit Authority of NSW
RESPONDENT: Ross Bailey
INSURER:State Transit Authority of NSW
FILE NUMBER: WCC15816-03
DATE OF ARBITRATOR’S DECISION: 5 August 2004
DATE OF APPEAL DECISION: 11 August 2005
SUBJECT MATTER OF DECISION: Aggravation or acceleration of a disease, substantial contributing factor: sections 4 and 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore, Solicitors
Respondent: Steve Masselos & Co, Solicitors
ORDERS MADE ON APPEAL: (1) Clauses 5 and 7 of the Arbitrator’s decision dated 5 August 2004 are revoked and the following clauses are substituted:
(5) The Respondent, the State Transit Authority, is to pay the Applicant, Mr Bailey, weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the maximum statutory rate for a single worker as adjusted in accordance with the provisions of the Act, from 3 February 2003 to 2 February 2005. Thereafter, an award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
(7) The Respondent, the State Transit Authority, is to pay the Applicant, Mr Bailey’s expenses associated with treatment for the aggravation or acceleration of the osteoarthritis in his right ankle, pursuant to section 60 of the Workers Compensation Act 1987, on production of accounts or receipts.
The Arbitrator’s decision is otherwise confirmed.
(2) The Appellant, the State Transit Authority, is to pay the Respondent, Mr Bailey’s costs in this appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 24 August 2004, the State Transit Authority of NSW (‘the STA’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 5 August 2004.
The Respondent to the Appeal is Ross Bailey. Mr Bailey was born on 28 September 1957 and is aged 47. He is married with two dependent children now aged 15 and 17. His wife is in full-time employment. Mr Bailey fractured his right ankle in an accident in 1992. He stated that, following surgery and recuperation, he had no immediate problems with the ankle and resumed his normal activities.
Mr Bailey was employed by the STA as a bus driver from 23 January 1997. In late 1997, he noticed discomfort in his right ankle/foot that he attributed to driving a bus, and consulted his general practitioner, Dr Andrew Small, who prescribed anti-inflammatory medication. Mr Bailey continued bus driving, taking medication regularly with some relief. However on 3 February 2003, when he went to see Dr Small following an incident on 30 January 2003 when he experienced severe pain his right ankle/foot, Dr Small recommended that he stop working. After about 10 days off work, Mr Bailey returned to work on light duties for some days, but stated he was later told he could not remain on such light duties permanently and was told to go home. His employment was formally terminated on 3 December 2003.
Mr Bailey notified the STA of the injury on 4 February 2003 and, on 11 February 2003, lodged a claim for workers compensation in respect of an injury to his right foot as a result of the nature and conditions of his employment as a bus driver between late 1997 and February 2003. The STA paid weekly compensation on a provisional basis until about 26 February 2003, when it denied liability on the ground that the condition was not work-related. On 3 October 2003, Mr Bailey’s ‘Application to Resolve a Dispute’ was registered by the Commission in respect of a claim for weekly benefits compensation of $917.00 gross from 26 February 2003 to date and continuing, and compensation for medical, hospital or related expenses. The STA’s ‘Reply’ was lodged on 20 October 2003.
An Arbitrator conducted a teleconference with the parties on 3 February 2004, following which he issued a direction for an Approved Medical Specialist (‘AMS’) to provide non-binding legal advice on Mr Bailey’s injury, the questions to be posed to the AMS to be agreed by the parties. Mr Bailey was examined by an AMS, Dr James Bodel, Orthopaedic Surgeon, on 14 April 2004, who was asked to address the questions agreed by the parties. On 1 June 2004, the Commission issued Dr Bodel’s Medical Assessment Certificate. A different Arbitrator conducted a further teleconference with the parties on 28 June 2004, and, on 28 July 2004, conciliation having proved unsuccessful, that Arbitrator conducted an arbitration hearing. At the conclusion of the arbitration hearing, she gave an ex tempore decision and her determination is set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 5 August 2004, records the Arbitrator’s orders as follows (it is unclear why the numbered paragraphs begin at 5):
“5. Respondent to pay the Applicant weekly compensation pursuant to s.40 at the full statutory rate of a single worker as indexed from 3 February 2003 to date and continuing.
6. Respondent to be given credit for payments made to the Applicant for weekly compensation to date.
7. Respondent to pay the Applicant s.60 medical expenses on production of accounts and/or receipts.
8. Respondent to pay costs as agreed or assessed.It is noted at the request of the parties that this was certified as a complex matter and that an issue of liability pursuant to s.4 and s.9A was found in favour of the Applicant.”
In giving her ex tempore decision, the Arbitrator noted:
“The agreed facts are that the applicant now has an osteoarthritic condition affecting his right ankle, the ball of the foot and the great toe of his right foot as a result of a pre-existing injury sustained following an injury in ’92. The injury was significant and required a plate for a year before removal.”
The Arbitrator found that in the course of or arising out of his employment with the STA, Mr Bailey received “an injury by way of an aggravation, acceleration, exacerbation or deterioration of a disease where employment was a contributing factor” (the arbitration hearing transcript page 52), thereby satisfying paragraph (b)(ii) of the definition of ‘injury’ in section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’). Moreover, in relation to section 9A of the 1987 Act, Mr Bailey’s employment “was a real or important factor in aggravating the applicant’s pre-existing condition such that employment was a substantial contributing factor to the applicant’s employment [sic]”.
The Arbitrator found Mr Bailey had not worked since his employment was terminated by the STA and, on the advice of his general practitioner, has not actively been looking for work while awaiting the resolution of his current situation, in particular whether he undergoes surgery to fuse his ankle. She said:
“I, therefore, accept the worker would find it extremely difficult to find alternate employment under the current circumstances and that he would need to finalise his current situation prior to finding suitable alternate employment.”
The Arbitrator found that Mr Bailey was entitled to weekly payments at the maximum statutory rate for a single worker. The transcript of the arbitration hearing (‘the transcript’) (at pages 56 and 57) indicates that the Arbitrator was prompted by counsel for the STA in relation to section 40 of the 1987 Act. Although it is unclear, the Arbitrator appears to have accepted submissions that Mr Bailey would have been capable of earning $1,000 per week had he not been injured, that he would be capable of earning $500 per week in suitable employment after the injury, and that there were no reasons to exercise the discretion in section 40(1). He would, therefore, be entitled to the full statutory rate for a single worker.
ISSUES IN DISPUTE
The grounds of appeal identified by the STA are as follows:
1. Whether the Arbitrator “failed to properly apply the definition of ‘injury’” in section 4 of the 1987 Act.
2. Whether the Arbitrator “failed to properly apply definitions of ‘substantial’” in section 9A of the 1987 Act.
3. Whether the Arbitrator “erred in misunderstanding material facts as found by Dr Bodel in his report of 14 April 2004”.
4. Whether the Arbitrator “failed to take into account Dr Bodel’s findings in respect of the continuation of any aggravation”.
5. Whether the Arbitrator “failed to take into account or in any proper way the competing medical evidence”.
6. Whether the Arbitrator “failed to have [sic] follow the appropriate task to assess the worker’s entitlements to weekly compensation pursuant to s.40”.
Essentially, the issues in dispute are whether Mr Bailey suffered an injury arising out of or in the course of his employment by the STA as a bus driver, specifically an “aggravation, acceleration, exacerbation or deterioration” of the osteoarthritis in his right ankle (section 4(b)(ii) of the 1987 Act) to which his employment was a “substantial contributing factor” (section 9A). If the answer to those questions is ‘yes’ and it is determined that Mr Bailey has an incapacity for work, then the further question is whether he is entitled to weekly payments of compensation in respect of any period of total or partial incapacity.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
The STA submits the matter involves complex legal and factual issues which are not appropriate to be determined ‘on the papers’ and that there are substantial financial implications for the STA. Mr Bailey’s counsel “has no objection to the Appellant’s contention”. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties, including written submissions on the facts and law both in relation to the hearing and in relation to this appeal. 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), according to the STA, the amount of compensation at issue is $24,572.90 and $323 per week from 3 February 2003 and continuing, and constitutes 100% of the amount awarded by the Arbitrator. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The STA submitted, in relation to the definition of injury in section 4 of the 1987 Act, that the Arbitrator erred in finding that the aggravation of Mr Bailey’s pre-existing condition, found by Dr Bodel to have been caused by driving a bus, continued to exist at the date of the determination of the claim. Dr Bodel found that Mr Bailey had “not driven a bus for over a year and the aggravation caused by that bus driving activity has now ceased”. Mr Bailey’s counsel submitted Dr Bodel’s report “was ambiguous and not binding on this general medical question”.
With regard to section 9A of the 1987 Act, the STA submitted the Arbitrator had failed to understand “that an aggravation may cease”, which was Dr Bodel’s finding. It was not open to the Arbitrator to find Mr Bailey’s employment was a substantial contributing factor on an analysis of Dr Bodel’s report and section 9A. Mr Bailey’s counsel submitted that the Arbitrator concluded the contribution of Mr Bailey’s employment was real and important on the basis of the whole of the evidence.
The STA submitted further that the Arbitrator erred by departing from Dr Bodel’s findings having placed reliance on those findings. Moreover, the Arbitrator failed to analyse the other medical evidence before her and give reasons as to why she accepted or rejected those reports. Mr Bailey’s counsel submitted the Arbitrator had ample evidence upon which to base her conclusion. She took into account Mr Bailey’s oral evidence as well as the other medical reports. The majority of doctors found there to be “a substantial connection”. Moreover, “[i]f there is evidence for a finding it cannot be challenged on appeal even if it is perverse, as it does not raise a question of law”.
With regard to section 40 of the 1987 Act, the STA submitted the Arbitrator failed to undertake the analysis required to find an entitlement to weekly compensation in respect of partial incapacity. Mr Bailey’s counsel submitted that the Arbitrator found Mr Bailey to be totally incapacitated for work and entitled to the maximum statutory rate of weekly compensation for a single worker. The Arbitrator accepted that Mr Bailey “would find it extremely difficult to find alternate employment under the current circumstances”. His entitlement to an award arose pursuant to sections 36 and 37 of the 1987 Act. Alternatively, if the Arbitrator had found Mr Bailey to be partially incapacitated, his entitlement would arise pursuant to section 40. At the hearing, the parties addressed the Arbitrator on each of the required steps. If she had decided Mr Bailey was partially incapacitated, he would still be entitled to the maximum statutory rate and the result would be the same.
EVIDENCE
There is no dispute that as a result of his accident in 1992, Mr Bailey suffers from what the AMS, Dr Bodel, described, in his Certificate issued on 1 June 2004, as “post-traumatic osteoarthritis in the right ankle”.
A number of medical reports were tendered on behalf of Mr Bailey and the STA. Mr Bailey’s medical reports state that the nature and conditions of his work as a bus driver aggravated or accelerated the osteoarthritis in his right ankle. Dr Andrew Small, Mr Bailey’s general practitioner, in a report dated 25 February 2003, referred to exacerbation of Mr Bailey’s osteoarthritis. He said Mr Bailey currently remained unfit for bus driving but was fit for light duty work.
In a report dated 1 July 2003, Dr P Endrey-Walder, Surgeon, stated that Mr Bailey:
“suffered aggravation on account of the nature and conditions of his daily work as a bus driver upon some pre-existing, post-traumatic changes at the right ankle … I have no doubt that his daily bus driving over the years has been a significant contributing factor to his current disability.”
Dr Endrey-Walder said, in his opinion, Mr Bailey would never again be considered fit to work as a bus driver because this would cause him unacceptable pain. In a later report dated 21 July 2004, Dr Endrey-Walder said the nature and conditions of Mr Bailey’s work as a bus driver:
“had been a moderate intensity accelerating factor to the development of the arthritic process at the right ankle, and a very significant, overwhelming influence on the development of his symptoms and the associated functional impairment at the ankle.”
Dr WGD Patrick, Surgeon, in a report dated 27 March 2003, said Mr Bailey had “developed significant work-related aggravation of osteoarthritis at the right ankle”. Dr Patrick said Mr Bailey’s continuing symptoms are “substantially contributed to by the nature and conditions of his work as a bus driver”. It was unlikely that he would be able to return to work as a bus driver.
Dr David Gronow, Specialist in Pain Management, in a report dated 4 November 2003, said Mr Bailey’s “symptoms of his osteoarthrits of his right ankle have been accelerated in relation to his work”. His employment had been “a substantial contributing factor to his present symptomatology”. He would not be fit for work as a bus driver, but would be fit for alternative full-time semi-sedentary work.
Dr Peter Youseff, Consultant Rheumatologist, in a report dated 20 February 2003, and Dr Kim Slater, Orthopaedic Surgeon, in a report dated 29 May 2003, indicated that a fusion of the right ankle might be the preferred treatment. Mr Bailey was referred to both doctors by his general practitioner, Dr Small. A number of the other medical reports mention this. In evidence to the Arbitrator, Mr Bailey said he had been advised by the orthopaedic surgeons he had consulted that the surgery has a high failure rate and a long recuperation period because the surgery is so invasive (the transcript page 47).
The STA’s medical reports deny that Mr Bailey’s work aggravated or accelerated the osteoarthritis in his right ankle. Dr Roger Rowe, Orthopaedic Surgeon, in reports dated 25 July 2003, stated there was “no evidence of any work-related aggravation as a result of his employment”. Mr Bailey might “well be unfit for the work of a bus driver” but “would be fit for work of a light sedentary or semi-sedentary nature”. In a later report dated 17 November 2003, Dr Rowe reiterated his opinion that there “is no evidence of aggravation, acceleration, exacerbation or deterioration as a result of employment” or that “employment was a substantial contributing factor” to Mr Bailey’s condition.
Dr Roger Oakeshott, Surgeon, in a report dated 2 July 2003, states:
“It is my opinion that the osteoarthritic changes in his right ankle represent the natural progression of this osteoarthritic condition subsequent to the significant injury to his right ankle in 1992. It is my opinion that the nature and conditions of his work with State Transit and the incident on January 30, 2003 played no part in the progression of this osteoarthritic condition. I consider that his work with State Transit did not aggravate, accelerate or exacerbate this osteoarthritic condition to any significant extent.”
Dr Oakeshott said Mr Bailey was partially incapacitated for work and not currently fit for his work as a bus driver. Dr Oakeshott reiterated these opinions in a later report dated 3 November 2003.
Dr Michael Gliksman, Occupational Physician, in a report dated 25 February 2003, said Mr Bailey remained fit for sedentary and office based duties. Ms Anna Lee, Physiotherapist, in an assessment undertaken on 15 July 2003, considered Mr Bailey “unsuitable for returning to bus driving” but his physical capacity allowed for other options.
The AMS, Dr Bodel, in his Certificate issued on 1 June 2004, stated Mr Bailey’s “clinical presentation is consistent with the history of post-traumatic osteoarthritis aggravated by his work as a bus driver”. He said the nature of Mr Bailey’s work:
“has aggravated his underlying degenerative process. It would have deteriorated over time whether he had done this work or not and at most the nature of work has brought forward the timing of the need for further treatment, principally an ankle arthrodisis. It is impossible to estimate how much this has advanced but it is probably several years …
Even though in my view there is some minor contribution to his current complaints as a result of the nature of his work at State Transit I do not believe that his employment is a substantial contributing factor.”
Dr Bodel reviewed the medical evidence provided by the parties and addressed the questions the parties had agreed should be asked of him. He noted Mr Bailey had not driven a bus for over a year and said “the aggravation caused by that driving activity has now ceased”. Dr Bodel considered that Mr Bailey:
“currently is fit for part-time light duty activities. He is not fit for his pre-injury work as a bus operator because this will further aggravate his longstanding arthritic change in his right ankle. He is capable of a wide range of alternative duties as long as they are predominantly sedentary in nature and do not require prolonged standing, walking, climbing or squatting. He may need the assistance of a rehabilitation facility in order to find more appropriate work. After a period of work hardening he may be able to upgrade to full time hours of work but will need to remain in permanently modified duties.”
Aside from the medical evidence, Mr Bailey provided a statement dated 29 January 2004. He said that following the surgery and recuperation from his 1992 injury, he “had no problems with my right leg and I considered that my ankle was fully functional and I had no pain or restrictions of movement”. It was in late 1997 that he noticed discomfort in his right ankle/foot and consulted Dr Small, who prescribed anti-inflammatory medication. He consulted Dr Small in May 2002 because of pain and swelling in his right ankle/foot and an x-ray was taken. By early February 2003, the pain had become so bad that he again consulted Dr Small who recommended that Mr Bailey stop working. Mr Bailey described the swelling, pain and restriction of movement in his right ankle/foot and said: “I do not consider that I could do my pre-injury work of a driver because I would not be able to apply force to the brake pedal or accelerator.”
Mr Bailey also gave evidence at the arbitration hearing about the shifts and overtime that he worked. He said he has not worked since February 2003. He provides Centrelink with a medical certificate from his doctor saying he cannot work for more than 8 hours a fortnight because of pain in his leg. The pain stops him walking, driving and getting around. In answer to a question from the Arbitrator, Mr Bailey said he might be capable of part-time office work although he has not undertaken any office work for many years. He has applied to Centrelink for a Disability Support Pension but his application has not yet been determined.
The STA also provided a report dated 3 March 2002 [this appears to be a mistake since the report was commissioned after Mr Bailey reported his injury in early February 2003] from SC Hall & Co Pty Ltd, Insurance Investigators and Assessors. The report queried whether Mr Bailey’s obesity had contributed to his condition. I note that while the medical reports record Mr Bailey’s obesity, none attribute his condition to this.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the STA must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
An issue to which the STA’s grounds of appeal gives rise is whether the Arbitrator provided an adequate ‘Statement of Reasons for Decision’. The Arbitrator has a statutory duty, pursuant to section 294(2) of the 1998 Act, to attach a brief statement to the Certificate of Determination setting out the Commission’s reasons for the determination. Rule 73 of the Workers Compensation Commission Rules 2003 requires that a statement of reasons is to include:
“(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions it made.”
As Deputy President Fleming said in Cargill Meat Processors Pty Ltd v Clark [2005] NSW WCC PD 7, failure to provide adequate reasons:
“constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. The standard by which the adequacy of the reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. Lengthy written reasons will not generally be necessary to convey simply, clearly and concisely, the reasons why a decision has been made.”
Moreover, for a party to succeed on the grounds of inadequate reasons, it must also be demonstrated that the error of law warrants the inference that the decision-maker did not exercise his or her jurisdiction in accordance with the law (YG & GG v Minister for Community Services [2002] NSWCA 247 at paragraph 47). In the context of the Commission: “It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned” (South Western Area Health Service v Edmonds [2005] NSW WCC PD 18 at paragraph 25; see also Kinerson v Café 106 [2005] NSW WCC PD 8).
The STA submits that the Arbitrator has failed to properly apply sections 4 and 9A of the 1987 Act. She found that Mr Bailey “did receive an injury by way of an aggravation, acceleration, exacerbation or deterioration of a disease where employment was a contributing factor to that aggravation and/or acceleration” (the transcript page 52), relying for that finding on Dr Bodel’s statement that (Certificate page 8): “This gentleman has not driven a bus now for over a year, and the aggravation caused by that bus driving has now ceased.” The Arbitrator also relied on Dr Bodel’s statement that he agreed with Dr Gronow that there had been some acceleration of the arthritic process by the nature of Mr Bailey’s work, although Dr Bodel only considered this “a minor contribution”.
In my opinion, it was reasonable for the Arbitrator to rely on Dr Bodel’s Certificate to support her finding in relation to section 4 of the 1987 Act, although I note she might have relied on some of his more supportive statements. Mr Bailey’s medical evidence also supported a finding of work-related aggravation. I reject the STA’s first ground of appeal, noting that the Arbitrator does not specifically refer to a point in time. However, I agree it is implicit in her finding that Mr Bailey is entitled to weekly compensation “to date and continuing”, that the aggravation has not ceased, and this is at odds with Dr Bodel’s expressed opinion that the aggravation had by then (the examination on 14 April 2004) ceased, although it is consistent with the opinions expressed in Mr Bailey’s medical evidence.
Moving on to section 9A of the 1987 Act and whether Mr Bailey’s employment was a “substantial contributing factor” to the aggravation, acceleration, exacerbation or deterioration of a disease, the Arbitrator again relied on Dr Bodel:
“The respondent’s submissions that employment was not a substantial contributing factor … is [sic] also rejected for the same reasons … on page 8 of Dr Bodel’s report, that is, that his driving did, in fact, aggravate the pre-existing condition.”
In fact, Dr Bodel’s opinion does not support a finding that employment was a substantial contributing factor. Dr Bodel stated that although “there is some minor contribution to his [Mr Bailey’s] current complaints as a result of his work at State Transit I do not believe that his employment is a substantial contributing factor” (Certificate page 6). Dr Bodel’s statements do not support the Arbitrator’s finding of substantial contributing factor in terms of its meaning of “real or of substance as distinct from ephemeral or nominal” (see Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740, at paragraph 26), and she omits to refer to Mr Bailey’s other medical evidence which could have supported such a finding, for example that of Dr Endrey-Walder (1 July 2003), Dr Patrick (27 March 2003), and Dr Gronow (20 February 2003), quoted above. I therefore conclude the Arbitrator made an error of law by making a finding of fact and not supporting that finding of fact by reference to relevant evidence.
In my view, Dr Bodel’s opinion on the degree of aggravation of Mr Bailey’s osteoarthritis is persuasive – that is, at the date of his examination of Mr Bailey on 14 April 2004, the aggravation had ceased. However, further consideration is required of Dr Bodel’s opinion that the nature of Mr Bailey’s work “has brought forward the timing of the need for further treatment, principally an ankle arthrodisis … [by] probably several years”. Dr Endrey-Walder (1 July 2003) also said Mr Bailey’s employment “had been a moderate accelerating factor to the development of the arthritic process of the right ankle”, and Dr Gronow (4 November 2003) stated that “Mr Bailey’s symptoms of his osteoarthritis of his right ankle have been accelerated in relation to his work”. This raises the distinction between ‘aggravation’, the worsening of the symptoms of a disease, and ‘acceleration’, the hastening of the progress of the disease by some external stimulus. (See Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 226.) Dr Bodel’s evidence clearly supports a finding that there was an acceleration of Mr Bailey’s osteoarthritis. Even if his employment was not a substantial contributing factor to the aggravation of his disease, was it a substantial contributing factor to the acceleration of the disease? In my view, the answer must be ‘yes’. Given Mr Bailey’s medical evidence, and the evidence generally as to the effect of the condition on him, I am inclined to think that, in the circumstances, an acceleration “of several years” is significant. Thus, Mr Bailey’s employment was a substantial contributing factor to his injury.
However, such an acceleration will not necessarily be a continuing one. In my view, it is reasonable to rely on Dr Bodel’s opinion in finding that the acceleration and, therefore, the incapacity was for a closed period of two years from 3 February 2003, the date Mr Bailey ceased work, to 2 February 2005.
The next issue is whether Mr Bailey is entitled to weekly compensation payments in respect of any period of total or partial incapacity. I note at the arbitration hearing, Mr Bailey’s counsel stated that his claim was for weekly payments from 3 February 2003 on the basis of partial incapacity pursuant to section 40 of the 1987 Act (the transcript page 25). There was no reference to any claim made under section 38 of the 1987 Act. Neither counsel raised this as an issue at the hearing, nor has it been raised as an issue before me, and no error by the Arbitrator has been alleged in this regard.
With regard to section 40, although no mention was made of the decision, counsel addressed the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’). With regard to step one, he said the parties had agreed, having considered the earnings of other bus drivers, that had Mr Bailey remained uninjured, he would have been earning approximately $1,000 per week. With regard to step two, bearing in mind that “[a]ll the doctors agree that the applicant’s incapacity is only partial” (the transcript page 25), and the evidence that Mr Bailey could do only a range of sedentary work, counsel submitted that his earnings would be not more than $500 per week on the open labour market. The third step is to calculate the difference between the two figures, resulting in an amount of $500 per week. With regard to the fourth step, counsel submitted there were no applicable discretionary factors. Mr Bailey was not then working because of the condition of his leg and also because of the complications arising out of his compensation claim. In particular, the issue of surgery for his ankle was unresolved. Mr Bailey’s counsel concluded, in relation to step five, that Mr Bailey was entitled to the statutory maximum rate of compensation for weekly benefits from 3 February 2003 to date and continuing.
An examination of the evidence establishes that medical opinion is that Mr Bailey is not fit for his previous work as a bus driver or other work that would aggravate the pre-existing osteoarthritis in his right ankle thereby causing arthritic pain, but is fit for light sedentary work. With regard to Mr Bailey’s current earning capacity, the STA submitted that bearing in mind his previous experience, including working in the financial markets, he should be able to earn $1,000 per week. In my view, given that Mr Bailey last worked in the financial markets in 1989, and bearing in mind the changes since then, it is unrealistic to expect that he would be able to obtain a relatively high income position. I find Mr Bailey’s counsel’s submissions on this second step prescribed by Mitchell to be persuasive and, indeed, on the other three steps. I note also Mr Bailey’s evidence that he relied on his general practitioner’s advice that he was not fit for work, a situation that was complicated by the unresolved issue of whether he should have surgery on his right ankle. Apart from warning him of the nature of the surgery and the risks involved, Dr Slater also told him the surgery might cost between $10,000 and $20,000.
Thus, the evidence supports a determination that Mr Bailey is entitled to an award of weekly compensation pursuant to section 40 of the 1987 Act at the maximum statutory rate for a single worker for a period of two years from 3 February 2003.
I should also comment that, in my view, the Arbitrator, in the ex tempore statement of reasons for her decision, neither sets out adequately the findings upon which she based her decision and the evidence upon which she relied in making such findings as she did make, nor explains adequately the reasoning processes that lead to her conclusion. Indeed, it is not clear from the ex tempore statement of reasons whether the award of compensation made was one in respect of total or partial incapacity, although the Certificate of Determination dated 5 August 2004 does record that the award is made pursuant to section 40 of the 1987 Act. The Arbitrator does not address the steps prescribed by Mitchell, although she appears to have accepted the promptings of counsel on these steps (the transcript pages 56 to 57) detailed in paragraph 47 above. The inadequacy of her reasons constituted an error of law, and I am not satisfied from her reasons that she exercised her discretion fairly and according to law. The relevant parts of her decision must therefore be revoked with appropriate substitutions made.
In terms of the appropriate substitutions, I have already discussed the award that should be made in respect of weekly payments. That leaves the issue of medical expenses and whether Mr Bailey is entitled to an award pursuant to section 60 of the 1987 Act. Pursuant to subsection (1), an award may be made in respect of medical or other treatment “if as a result of an injury received by a worker, it is reasonably necessary”. The osteoarthritis in Mr Bailey’s right ankle is a consequence of the injury he suffered in 1992 which is unrelated to his employment. Thus, in my view, while it is reasonable for the STA to pay the medical and other treatment costs associated with the aggravation or acceleration of his condition – the ‘injury’ arising out of or in the course of his employment, it is not reasonable for the STA to pay the costs associated with surgery to fuse his right ankle – the arthrodisis to which most of the medical reports referred (see Dr Bodel (1 June 2004), Dr Endrey-Walder (1 July 2003), Dr Slater (29 May 2003), Dr Oakeshott (2 July 2003), and Dr Gliksman (25 February 2003)), if the need for this surgery is not related to his employment by the STA.
DECISION
Clauses 5 and 7 of the Arbitrator’s decision dated 5 August 2004 are revoked and the following clauses are substituted:
(5) The Respondent, the State Transit Authority, is to pay the Applicant, Mr Bailey, weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the maximum statutory rate for a single worker as adjusted in accordance with the provisions of the Act, from 3 February 2003 to 2 February 2005. Thereafter, an award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
(7) The Respondent, the State Transit Authority, is to pay the Applicant, Mr Bailey’s expenses associated with treatment for the aggravation or acceleration of the osteoarthritis in his right ankle, pursuant to section 60 of the Workers Compensation Act 1987, on production of accounts or receipts.
The Arbitrator’s decision is otherwise confirmed.
COSTS
The Appellant, the State Transit Authority, is to pay the Respondent, Mr Bailey’s costs in this appeal as agreed or assessed.
Robin Handley
Acting Deputy President
11 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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