Sutherland Shire Council v Turner
[2006] NSWWCCPD 37
•3 March 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sutherland Shire Council v Turner [2006] NSWWCCPD 37
APPELLANT: Sutherland Shire Council
RESPONDENT: Pauline Norah Turner
FILE NUMBER: WCC11226-04
DATE OF ARBITRATOR’S DECISION: 15 December 2004
DATE OF APPEAL DECISION: 3 March 2006
SUBJECT MATTER OF DECISION: Weight of Evidence: ‘Injury’, section 4’ of the Workers Compensation Act 1987: ‘Substantial Contributing Factor’, section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts Solicitors
Respondent: White Barnes Solicitors
ORDERS MADE ON APPEAL: Leave to appeal is granted.
The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.
BACKGROUND
Pauline Turner has worked within a library operated by Sutherland Shire Council since November 1988. Her current job is Technical Services Co-ordinator. She claims to have suffered an injury to her back, at work, on 4 September 2002, when working on a hole-punching machine in the library. Ms Turner made a claim for weekly benefits compensation, medical expenses and lump sum compensation for permanent impairment. The Council denied liability for the claim and, on 22 July 2004, Ms Turner brought the dispute to the Workers Compensation Commission for resolution.
THE ARBITRATOR’S DECISION
A Commission Arbitrator made an award in Ms Turner’s favour of weekly compensation for the periods 5 to 9 September 2002 and 17 February 2003 to 11 April 2003, and medical expenses in the sum of $22,554.64. The Arbitrator gave the award, and reasons for the decision, orally on 11 November 2004. A ‘Certificate of Determination’, setting out these orders, was issued on 15 December 2004. The Council appeals against that award.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides as follows:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal meets the threshold requirements of section 352. It was filed within time and the amount at issue in the appeal is more than $5,000 and 20% of the amount awarded in the decision appealed against.
Leave to appeal is granted.
FRESH EVIDENCE
There is no ‘fresh evidence’ on the appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Council and Ms Turner consent to the determination of the appeal on the papers.
I have before me all the evidence and submissions that were before the Arbitrator, the transcript of the arbitration on 9 November 2004, the transcript of the oral reasons given on 11 November 2004 and the parties’ submissions on the appeal.
The transcript was sent to the parties and they were given additional time to make submissions on any issues arising from it. Both parties made further submissions; Ms Turner on 15 February 2006 and the Council on 22 February 2006.
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 (section 354(6) of the 1998 Act; Practice Direction No. 1).
ISSUES IN DISPUTE
In order to be successful on appeal the Council must demonstrate the Arbitrator has made an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6; The King Island Company Limited v Deery [2005] NSW WCC PD 1). The error must be such that, if it were not made, a different decision would have resulted (Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 at paragraph 4). A Presidential Member determining the appeal may revoke the arbitrator’s decision and substitute a different decision for it, or may remit the matter to the arbitrator concerned or a different arbitrator for re-determination in accordance with the decision on appeal (section 352 of the 1998 Act).
The Council’s submissions on the appeal disclose two alleged errors by the Arbitrator, namely:
· Did the Arbitrator err in finding that Ms Turner suffered a back injury in the course of her employment with the Council on 4 September 2002 (section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’))?
· Did the Arbitrator err in finding that Ms Turner’s employment was a ‘substantial contributing factor’ to her injury (section 9A of the 1987 Act)?
Ms Turner submits that the Council has not demonstrated any error on the part of the Arbitrator. She argues the evidence supported her claim that the incident on 4 September 2002 was separate and distinct from earlier episodes of back pain and that the Arbitrator was correct in finding that she suffered an injury at work on that day to which her employment was a ‘substantial contributing factor’.
Did the Arbitrator err in finding that Ms Turner suffered a back injury ‘in the course of’ her employment with the Council on 4 September 2002?
In the ‘Application to Appeal’ the Council submits Ms Turner:
“. . . . claimed she had not previously suffered any injury to her back.
Investigations revealed, and the Respondent Worker conceded in evidence, that she had in fact seen a doctor in 1997 complaining of the same symptoms as were allegedly suffered following her work related injury in September 2002.Significantly, those symptoms included sharp lower back pain and referred pain to the lower limbs. At that time she was prescribed analgesia, physiotherapy and rest.
. . .
No expert medical evidence was tendered on the Respondent Worker’s behalf in which nexus was discussed with the doctor having knowledge of the 1997 incident.
. . .
The Appellant Employer submitted evidence that in all the circumstances the Respondent Worker’s condition ought not to be ascribed to the subject alleged injury.
In these circumstances, the Appellant argues that the Arbitrator’s finding of nexus was unsafe, ill-informed and not based on an assessment of the balance of probabilities.”
The Council’s further written submissions, filed on 22 February 2006, make the following additional points:
· The Arbitrator failed to take account of Ms Turner’s history of a worsening back condition.
· The Arbitrator’s conclusion that Ms Turner’s injury, on 4 September 2002, was of a different character to her previous back problems was not supported by the evidence.
· The finding of ‘injury simpliciter’ is inconsistent with Dr Maloney’s view, upon which the Arbitrator relied. Dr Maloney’s opinion is unreliable as he had an incomplete history of the injury and it was itself, at times, inconsistent.
The critical issue is the ‘nexus’ between employment and the alleged injury. This must be determined on the facts of each case. The Council submits that the Arbitrator erred in finding that the worker suffered an ‘injury arising out or in the course of [her] employment’ in accordance with section 4 of the 1987 Act, which provides as follows:
“injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”
The phrase ‘arising out of . . employment’ connotes a causal connection between the work and the injury (Nunan v Cockatoo Docks & Engineering Co Pty Ltd (1941) 41 SR (NSW) 119). This may be contrasted with the concept of an injury that occurs ‘in the course of employment’, connoting a temporal connection between the injury and the employment (Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473).
The Arbitrator gave a lengthy discussion of the factual and legal issues in the reasons for decision. In particular he:
·Found Ms Turner to be a frank and truthful witness (pages 4 to 5 of the transcript of 11 November 2004).
·Accepted that Ms Turner did not recall consulting Dr Gellatley in 1997 for back pain (page 4 of the transcript of 11 November 2004).
·Noted Dr Matheson’s report of 12 October 2004 found the 1997 incident was “not inconsistent with what Mrs Turner told me, and she said she had had minor back pain from time to time before this” (page 4 of the transcript of 11 November 2004).
·Accepted that the back pain reported by Ms Turner in 1997 had no connection to her employment at that time (page 5 of the transcript of 11 November 2004).
·Found that the medical history Ms Turner gave to Dr Maloney of mild back pain and stiffness, associated with activities such as gardening and vacuuming, was not inconsistent with the report of back pain in 1997 (page 5 of the transcript of 11 November 2004).
·Found that on the evidence before him “there does not appear to have been any work activity that Mrs Turner performed that was associated with any particular symptoms in her back prior” to 4 September 2002 (page 5 of the transcript of 11 November 2004).
·Accepted Ms Turner’s evidence that on 4 September 2002, after working on the hole-punching machine for one to one and a half hours, she felt severe back pain, unlike any previous back pain she had experienced. She reported this to Dr Gellatley on 9 September 2002 (pages 7 and 12 of the transcript of 11 November 2004).
·Accepted the clinical evidence that Ms Turner had a severe disc protrusion at L4-L5 with nerve root compression (pages 8 to 9 of the transcript of 11 November 2004).
·Considered the medical evidence of Dr Maloney and Dr Matheson, but preferred the evidence of Dr Maloney because the Arbitrator took the view it was based on a more complete history of the injury and more recent “objective material, including the MRI scan” (page 12 of the transcript of 11 November 2004).
The Arbitrator’s task was to consider and exercise his discretion as to the probative value of the factual evidence before him. He had the considerable forensic advantage of seeing and hearing Ms Turner give her evidence and be cross-examined on that evidence.
The Council’s primary attack on Ms Turner’s claim is that she had a prior back injury, which, as shown in oral evidence and the reports of Dr Gellatley, she did not disclose in relation to this claim. Ms Turner gave oral evidence, accepted by the Arbitrator, that the pain she experienced on 4 September 2002, immediately following the incident with the hole punching machine, was “sharper pain” and “much more severe” than any pain she had previously experienced in her back.
The report of Dr Matheson dated 12 October 2004 clearly states his view, that Ms Turner’s history of back pain evidenced that the incident on 4 September 2002 was “totally irrelevant” to her back injury. However the Arbitrator was entitled to rely upon the report of Dr Maloney. He considered it more persuasive as Dr Maloney treated Ms Turner. Dr Maloney’s opinion was informed by a history of “mild aches and pains from time to time in her back for which she did not need to seek medical advice”. In evidence before the Arbitrator it became apparent that Ms Turner had previously sought medical advice in relation to her back. The Arbitrator took this into account and remained persuaded by Dr Maloney’s view that the incident on 4 September 2002 produced a real worsening of Ms Turner’s back condition. The attack on Ms Turner, on the basis that she did not disclose her earlier back problems, and its significance to the subsequent injury, is not made out on the totality of the evidence and the weight given to certain evidence by the Arbitrator.
In my view the Arbitrator has not misunderstood Dr Maloney’s evidence nor given it persuasive weight that it did not deserve in coming to his decision. He did not err in finding that Ms Turner suffered an injury to her back at work on 4 September 2002.
Did the Arbitrator err in finding that Ms Turner’s employment was a ‘substantial contributing factor’ to her injury (section 9A of the 1987 Act)?
The Council submits the totality of the evidence does not support a finding that the incident on 4 September 2002 was a ‘substantial contributing factor’ to Ms Turner’s injury.
The Arbitrator was required to determine whether her employment was a ‘substantial contributing factor’ to that injury, in accordance with section 9A of the 1987 Act, which provides as follows:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The Court of Appeal considered section 9A in Mercer v ANZ Banking Group [2000] NSWCA 138 (‘Mercer’). In that decision Mason P, stated (at paragraph 32) that:
“The requirement that employment be a contributing factor to the ‘injury’ is not equivalent to the expression arising out of the employment. It is not easy to apply a causation requirement to a provision which continues to define ‘injury’ as including injury arising in the course of employment. However, work has to be found for all of the words used, unless this proves an impossible task. Section 9A(3)(a) does not preclude this, because it goes no further than deeming employment not to be a substantial contributing factor to an injury ‘merely because’ the injury arose in the course of the worker's employment.”
There have been conflicting interpretations of Mercer. In Jadoul v Qantas Airways [2001] NSWCC 175, Burke J, stated (at paragraph 21) that:
“I am bound by the decision in Mercer and that I take to require that the concept of substantial contributing factor is to be regarded as, at least, no more onerous than the concept of arising out of the employment. If injury arises out of the employment then the employment is necessarily a substantial contributing factor to the injury.”
This interpretation of Mercer was expressly, albeit briefly, rejected by the Court of Appeal, (Mason P, with whom Meagher JA and Handley JA agreed), in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257. Such an approach is also inconsistent with the express words of section 9A(3)(a) which states that a finding the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.
The word ‘substantial’ must be given its normal meaning, and, as Meagher JA noted in Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153 at paragraph 16, “this word is a plain English word which is understood by anyone who is not a judge”.
Employment need not be the only substantial contributing factor to an injury. Other causative factors may operate. It is sufficient if it is ‘a’ substantial contributing factor that is “more than minimal” (Mercer). In most cases it remains a question of impression and degree on the facts of the instant case (Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153 at paragraph 25).
Having found that Ms Turner suffered an injury to her back when at work on 4 September 2002 the Arbitrator expressly found that her employment was a ‘substantial contributing factor’ to that injury. The injury occurred at work, during her normal working hours and when doing her normal duties. Ms Turner would not have been using the ‘hole-punching’ machine had she not been at work. Dr Maloney opines that the catalyst for the injury was the activity she was undertaking. There is no evidence that the injury would have happened anyway at this time if Ms Turner had not been at work doing this task.
The Arbitrator did not err in finding that Ms Turner’s employment was a substantial contributing factor to her injury.
There was sufficient evidence before the Arbitrator to conclude that there was a nexus between the activity Ms Turner was performing at work on 4 September 2002 and her injury. A finding that Ms Turner suffered an ‘injury’ to her back on 4 September 2002 ‘arising out of or in the course of her employment’ and that her employment was a ‘substantial contributing factor’ to that injury were open to the Arbitrator on the evidence. There was also sufficient evidence to support Ms Turner’s incapacity for work following that date.
The Council has failed to demonstrate an error of law, fact or discretion by the Arbitrator. The appeal must fail and the matter should now be referred, as soon as possible, to an Approved Medical Specialist for an assessment of the medical dispute.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
3 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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