Sydney South West Area Health Service (Concord Hospital) v Topp
[2010] NSWWCCPD 94
•1 September 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Sydney South West Area Health Service (Concord Hospital) v Topp [2010] NSWWCCPD 94 | ||||
| APPELLANT: | Sydney South West Area Health Service (Concord Hospital) | ||||
| RESPONDENT: | Mark Topp | ||||
| INSURER: | Employers Mutual Limited | ||||
| FILE NUMBER: | A1-855/10 | ||||
| ARBITRATOR: | Ms C Rimmer | ||||
| DATE OF ARBITRATOR’S DECISION: | 10 May 2010 | ||||
| DATE OF APPEAL DECISION: | 1 September 2010 | ||||
| SUBJECT MATTER OF DECISION: | Causation; pre-existing back condition; whether incapacity resulted from work injury or pre-existing condition; whether incapacity was total or partial; exercise of discretion in section 40(1) of the Workers Compensation Act 1987; unmeritorious appeal; obligation of legal practitioners to comply with section 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3 of Appeal Against Decision of Arbitrator | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | TurksLegal | |||
| Respondent: | Keddies Lawyers | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 10 May 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||||
BACKGROUND
The respondent worker, Mr Topp, injured his back when he tripped and fell in the course of his employment as a nurse for the appellant employer at Concord Hospital on 12 October 2005. The respondent employer’s insurer, Employers Mutual Limited (‘Employers Mutual’), accepted liability and made voluntary payments of compensation.
In 2008, Mr Topp sought lump sum compensation in respect of the whole person impairment resulting from his injury. The Commission referred that claim to an Approved Medical Specialist (‘AMS’) for assessment. The AMS, Dr Mellick, assessed Mr Topp to have a 27 per cent whole person impairment, but, after deducting 100 per cent for his pre-existing condition, certified a nil impairment as a result of the injury on 12 October 2005.
Mr Topp appealed against Dr Mellick’s assessment. On 8 December 2008, a Medical Appeal Panel revoked Dr Mellick’s Medical Assessment Certificate (‘MAC’) and issued a new Certificate in which it assessed Mr Topp to have a 31 per cent whole person impairment in relation to his lumbar spine. After deducting 93.55 per cent for his pre-existing condition, it certified him to have a two per cent whole person impairment as a result of the 12 October 2005 injury. Employers Mutual continued to pay voluntary weekly compensation until 2009.
In a section 74 notice dated 8 October 2009, Employers Mutual disputed liability on the grounds that the effects of the October 2005 injury had ceased and that Mr Topp’s ongoing incapacity was related to his “pre-existing constitutional condition”. It also disputed that Mr Topp’s requirement for continuing medical treatment resulted from the October 2005 injury. The reference to Mr Topp’s “pre-existing constitutional condition” was a reference to the fact that, prior to 12 October 2005, Mr Topp had a significant pre-existing back impairment for which he had undergone surgery on five separate occasions and for which he had been receiving medication up to the time of his fall.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 8 February 2010, Mr Topp sought weekly compensation from 3 March 2009 to date and continuing, together with hospital and medical expenses in the sum of $12,347.95. Given that the insurer did not dispute liability until 8 October 2009, it is not clear why the claim for weekly compensation commenced on 3 March 2009.
The Commission listed the matter for conciliation and arbitration on 28 April 2010. The parties agreed that the issues in dispute remained as stated in the section 74 notice dated 8 October 2009. The matter proceeded with lengthy submissions, but neither party called any oral evidence.
In a reserved decision delivered on 10 May 2010, the Arbitrator found that the effect of the injury on 12 October 2005 had not ceased and that, as a result of the injury, Mr Topp was partially incapacitated from 2 March 2009 until 6 December 2009 and totally incapacitated thereafter.
The Commission issued a Certificate of Determination on 10 May 2010 in the following terms:
“1. That the Respondent pay the Applicant weekly compensation pursuant to
S 40 of the Workers Compensation Act 1987 as follows:
(a)$ 381.40 per week from 2 March 2009 to 31 March 2009
(b)$ 389.10 per week from 1 April 2009 to 30 September 2009
(c)$ 396.10 per week from 1 October 2009 to 6 December 2009.
2. That the Respondent pay the Applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows:
(a) $ 396.10 per week from 7 December 2009 to 31 March 2010
(b) $ 403.70 per week from 1 April 2010 to date and continuing at the
maximum statutory rate for a single worker with no dependants.
3. That the Respondent pay the Applicant’s s 60 expenses on production of accounts and/or receipts and/or Medicare notice of charge.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.
5. I certify this matter as complex.
6. I certify an uplift in the Applicant’s costs at 10%.
7. I certify an uplift in the Respondent’s costs at 10%.”
In an appeal filed on 28 May 2010, the appellant employer seeks leave to challenge the Arbitrator’s decision. Neither party has challenged the fact that the award commenced on 2 March 2009, six months before the insurer issued the section 74 notice.
LEAVE TO APPEAL
Monetary threshold
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’).
The monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 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 Arbitrator erred in:
(a)determining that Mr Topp’s current level of pain had increased as a result of the injury on 12 October 2005, and in not properly considering and apportioning Mr Topp’s requirement for pain medication as a result of his pre-existing injuries (‘medication and causation’);
(b)finding that Mr Topp was totally unfit as a result of the injury on 12 October 2005 on the basis of a reduction in pain medication from 7 December 2009 (‘total incapacity’);
(c)failing to exercise the discretion in section 40(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘section 40 discretion’), and
(d)finding that the appellant employer was liable for all continuing section 60 expenses (‘section 60 expenses’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Medication and causation
Mr Topp has not disputed that he had significant problems with his low back prior to 12 October 2005. Those problems required him to undergo the following operations:
(a)14 October 1982, L4/5 lumbar laminectomy;
(b)25 November 1982, exploratory laminectomy;
(c)12 May 1988, L5/S1 lumbar laminectomy;
(d)24 August 1994, L4/5 laminectomy, and
(e)28 May 1996, L5/S1 lumbar laminectomy and spinal fusion of L4/5 and L5/S1.
As a result of the condition of his low back and the above operative procedures, Mr Topp has suffered chronic low back pain since 1980. In addition to the above operative procedures, Mr Topp has undergone various pain management courses. In 1998, he had a “dorsal column stimulator” inserted by Dr Ditton. In the same year, Mr Topp commenced pethidine.
The appellant employer’s submissions, prepared by Mr Elder, solicitor, asserted at paragraph 4:
“Dr Fairley stated in clinical notes dated 10 March 2000 ‘my opinion is that with 600 mg of pethidine per week he functions well at work’. In May 2005 the worker was treated with Ketamine and Fentanyl during a hospitalisation. The Applicant continued Pethidine medication at 600 mg per week until 2005, Dr Theodorou stated in clinical notes dated 8 August 2005 (two months prior to the injury) ‘Oxycodone 120 mg daily and 2mg Panadol a day. Pethidine 600 mg weekly’. The Applicant’s use of pain medication increased after the injury [on] 12 October 2005 but his current pain medication has reduced from pre-injury levels. Dr Matheson, neurosurgeon, recorded the worker’s pain medication at 18 October 2006 as ‘… 3 injections of pethidine per week… Oxynorm and Prozac..’ which is less than the amount recorded by Dr Theodorou noted above.”
At a teleconference on 26 August 2010, Mr Elder conceded that there is no evidence from Dr Matheson and that the Commission could disregard that part of his submissions.
Mr Elder submitted that Mr Topp “was only able to sustain employment after 1996 due to high levels of narcotic medication”. He further submitted that:
(a)Mr Topp’s level of incapacity prior to 12 October 2005 and the natural deterioration of that level of capacity were not properly considered in the Arbitrator’s decision;
(b)the worker’s alleged increase in pain and medication from 2006 to date was on a background of severe longstanding lower back pain. The contribution of the injury on 12 October 2005 to the increased pain from 2006 to date should have been considered in the context of the worker’s entire history of pain, surgery and treatment;
(c)it was evident from the history and medical reports that the worker’s lower back condition “would inevitably deteriorate” and “it [was] therefore contrary to the evidence to attribute total incapacity to the aggravation injury on 12 October 2005”;
(d)the Arbitrator said (at [67] of her decision) that the cause of the worker’s total incapacity after 7 December 2009 was his “requirement to detoxify from his pain medication”. The reduction in pain medication was “entirely attributable to the pre-existing lower back condition” and the Arbitrator did not properly consider the effects of the pre-existing medication on the worker’s requirement to reduce the level of his medication;
(e)the Arbitrator noted that concerns had been raised about the worker’s level of medications in March 2006, but failed to properly address the effects of the narcotic medications from 1996 to 2005 in relation to the contribution that period of medication had on the worker’s need to detoxify, and
(f)the effects of the injury on 12 October 2005 had ceased. Any incapacity after 2 March 2009 was due to Mr Topp’s pre-existing lower back condition and, after 7 December 2009, due to the pre-existing lower back condition and the requirement for detoxification from pain medication.
Essentially, the appellant employer’s argument was that the Arbitrator erred in finding that Mr Topp’s incapacity resulted from the work injury and in not finding that the effect of the work injury had ceased. Mr Elder has not referred to any relevant evidence on that issue, but has based his argument on an analysis of Mr Topp’s pre- and post-accident medication.
I do not accept Mr Elder’s submissions.
There is no doubt that Mr Topp had significant back problems prior to his injury on 12 October 2005. It is also accepted that he regularly received injected pethidine from 1998. However, Mr Elder’s submissions have ignored the worker’s unchallenged evidence in his statement of 25 January 2010, where Mr Topp set out the history of his previous back treatment and symptoms. He said that, after the May 1996 surgery, he felt a “considerable improvement” in his back. He initially returned to work in a research role for three days per week. Between 1996 and 2001, he gradually increased his hours to approximately 36 per week. He split his hours between work in the sleep studies unit and in the IT department. He continued in full-time employment until his injury on 12 October 2005.
Mr Topp’s evidence, which the Arbitrator accepted, was that, though he had significant problems with his lower spine before the October 2005 incident, those problems did not prevent him from engaging in meaningful full-time employment. When he fell on 12 October 2005, he felt immediate pain in his back. He heard a “crack” in his back and did not move off the floor until he received assistance from a colleague. After the fall, he was admitted to Concord Hospital until 18 October 2005 and then transferred to a rehabilitation unit for three weeks before being discharged home (Dr Mellick’s MAC 4 September 2008, page 3).
Mr Topp said at paragraph 37 of his statement:
“Following the accident on 12 October 2005, I have not been able to return to my pre accident capacity. The additional trauma sustained in this accident is the sole reason why I have been unable to return to meaningful employment.”
He added that he enjoyed working at Concord Hospital and that he would like nothing more than to return to work in his pre-accident capacity. He said at paragraph 41 that:
“I continue to suffer from increased pain in my back, which radiates to my legs. The pain is aggravated when standing, sitting or walking. I also have difficulty in doing computer work and driving. As such, there is only a limited amount of activity I can do without aggravating my pain.”
Mr Topp said that, before his fall, he socialised at least once a week with friends, attended university tutorials for his Bachelor of Medical Science degree, engaged in a sexual relationship with his partner, contributed to all normal household duties such as vacuuming, washing and hanging out clothes, played lawn bowls once a month, cycled three to five kilometres per week, and drove a manual car for reasonable distances without a break.
After his accident, he had been unable to socialise on a regular basis because of his “considerable pain” and the side effects of his medication, which made him drowsy, caused bowel/bladder problems and caused him to sweat profusely. In addition, whilst he has continued his part-time university studies, he has had to modify his learning methods. He now avoids lab sessions and university attendances, and studies predominantly by the internet and listening to taped lectures.
Since the fall, Mr Topp has been unable to maintain sexual relations with his partner because he has been unable to obtain and maintain an erection. He has also been unable to perform heavy household duties and, as a result, has had to return to live with his parents. He is reliant on his parents for domestic care and assistance. He has been unable to engage in any sporting activities, such as lawn bowls or cycling, and has had to purchase an automatic car because the constant gear changes required for a manual car aggravated his injuries. Even with an automatic car, his driving tolerance is only 30 minutes. Mr Topp has also experienced anxiety and depression.
Mr Topp’s evidence as to the effect of the fall on him is creditable and consistent with the medical evidence. I have no hesitation in accepting it, as did the Arbitrator.
Dr Bleasel, neurosurgeon, in a report dated 4 December 2007, supports Mr Topp’s medical case. He took a history that is essentially consistent with Mr Topp’s evidence. He recorded that, until his fall, Mr Topp had been progressing quite well at the sleep department at Concord Hospital. He said that Mr Topp had the following symptoms:
(a)neck pain that spread upwards from the lumbar spinal pain and spasm;
(b)constant low back pain easily aggravated by walking;
(c)bilateral sciatica;
(d)numbness in the lateral aspect of both lower limbs, travelling down to the instep, with tingling in the left big toe;
(e)a “lancinating” pain in the right calf, and
(f)an “upset of sexual activity, bladder function and bowel function”.
On examination, there was marked spasm in the lumbar spine. On the examination couch, Mr Topp had to keep his knees flexed. Both ankle jerks were absent, though that had been the case for “a very long while” (presumably before the fall). There was also wasting of the left anterior tibial muscles, but with no gross weakness.
Dr Bleasel concluded:
“His injury on 12 October 2005 has to be looked at as an incident on the background of pre-existing problems however he was making satisfactory progress and had gradually progressed to a worthwhile job in the sleep department and but for the injury it is probable that he would have continued in this work.
It is unlikely that he would be able to work in any capacity in the future.”
Mr Topp also relies on a report from Dr Hughes, his treating general practitioner. Though the report is undated, it seems to have been prepared in or about September 2009. Dr Hughes has treated Mr Topp over many years and is well aware of his history. He first saw Mr Topp after the fall in about mid November 2005. Consistent with Mr Topp’s evidence, Dr Hughes took a history that Mr Topp “felt a crack in his back” when he fell and could not move due to pain.
On examination, Dr Hughes noted the worker to have pain and stiffness in his lower back radiating to his buttocks and down both legs. He diagnosed a “worsening of his previous back pain with neuralgia pain in both legs due to exacerbation of his lumbar-sacral disc disease and arachnoditis [sic] as a result of his fall”. As it had been four years since the fall, and as Mr Topp continued to complain of low back pain radiating to both legs, his prognosis was for continuing chronic pain.
On the question of the causal connection between the fall and the injuries, Dr Hughes said that Mr Topp’s symptoms had worsened since the fall, with the need for increased analgesia. He added that Mr Topp had been unable to continue full-time work. Mr Topp’s inability to return to his pre-injury duties was due to his work injury.
Due to an ambiguity in his first report, Dr Hughes prepared a supplementary report on 15 September 2009 in which he said that the accident on 12 October 2005 remained a “substantial contributing factor to [Mr Topp’s] ongoing symptoms”. In other words, the effect of the injury had not ceased. He thought the worker was fit for suitable duties for 16 hours per week in four-hour blocks, with breaks of about 10 minutes every two hours.
The appellant employer has based its case on a report from Dr Pillemer, orthopaedic surgeon, dated 28 May 2009, together with reliance on histories recorded by several doctors about the level of Mr Topp’s medication before and after the fall.
Dr Pillemer took a consistent history of Mr Topp experiencing significant back problems requiring surgical intervention from 1982. He recorded that Mr Topp returned to work for two days per week in 1996, and eventually increased his work to four days per week (full-time) by 2005. He recorded that Mr Topp’s symptoms were “significantly aggravated” in his fall on 12 October 2005 and that he was admitted to hospital for one week and then to a private rehabilitation hospital for three weeks. His attempt to return to work in January 2006 caused a significant increase in his symptoms, which forced him to stop work again.
At the time of Dr Pillemer’s examination, Mr Topp said that he was gong to university one day per week and doing external studies in his medical science course. Mr Topp said that he had asked his doctor to allow him to return to work for two days per week and had applied for a research laboratory job for 16 hours per week.
Dr Pillemer recorded that the worker complained of significant ongoing symptoms in his low back, with referred pain down both legs. He described the discomfort as a “deep ache” that was constantly present, but could be relieved “to a large extent” by his medications. His symptoms were aggravated by sitting or standing, or by walking over a kilometre. Bending and lifting aggravated his symptoms.
Dr Pillemer concluded that Mr Topp’s injury on 12 October 2005 was an aggravation of a pre-existing condition. In his opinion, the effects of that aggravation had, “in all probability”, ceased and the injury was “not a substantial contributing factor for Mr Topp’s ongoing complaints”.
In Dr Pillemer’s opinion, Mr Topp came across as an “entirely straight forward person” who was “very well motivated”. He felt that work for 16 hours per week in a research laboratory job would be reasonable for Mr Topp, but he would have to avoid activities that placed stress on his low back. He did not think Mr Topp would ever get back to his pre-injury duties “because of his longstanding problem”.
Dr Pillemer stated that Mr Topp was on “high doses of narcotic analgesia”, but said he would leave that to the treating doctors. He thought it was preferable if he could reduce the amount of his analgesics. He felt that ongoing treatment was reasonably necessary and that the only way to achieve a reduction in medications was for the worker to attend a pain clinic.
As can be seen from the above summary of the medical evidence, the appellant employer’s case rests virtually entirely on Dr Pillemer’s assertion that the effects of the fall at work have ceased. The doctor did not explain the basis for his conclusion and it is inconsistent with Mr Topp’s evidence, which I accept, that his symptoms have continued at a significantly higher level since the fall than they were before the fall. In addition, not only have his symptoms continued at a higher level, but he has also suffered significant additional restrictions that he did not have prior to October 2005. In these circumstances, I do not accept Dr Pillemer’s evidence that the effect of the fall has ceased.
Further, Dr Pillemer’s assertion that the fall was not a “substantial contributing factor for Mr Topp’s ongoing complaints” is not consistent with the terms of the legislation. It is not necessary that an injury be a substantial contributing factor to ongoing complaints. The legislation requires that employment be a substantial contributing factor to the relevant injury (section 9A of the 1987 Act). The question in the present case is whether Mr Topp’s incapacity has resulted from his accepted injury. Mr Topp’s evidence, supported by Drs Bleasel and Hughes, comfortably establishes that it has.
Mr Elder’s submissions have focused on the worker’s medication. Mr Topp has not disputed that he consumed large quantities of pain-relieving medications prior to October 2005. However, the critical fact is that, notwithstanding a similar (or higher) medication regime after his fall, he was unable to resume his pre-accident activities or his pre-accident employment.
Mr Elder’s assertion that the Arbitrator erred in failing to consider the natural deterioration of Mr Topp’s capacity because of his pre-existing condition is without merit. That submission was never put to the Arbitrator and, in any event, is unsupported by any persuasive evidence. Counsel for the appellant employer at the arbitration argued that, apart from a short period after the fall, Mr Topp’s pre-existing condition caused his incapacity (T7.11). The Arbitrator rejected that submission and I agree with her conclusions and reasons.
The submission that Mr Topp’s low back condition would “inevitably” have deteriorated and that it was therefore contrary to the evidence to attribute total incapacity to the injury on 12 October 2005 is unsupported by any medical evidence and I do not accept it. Dr Pillemer did not suggest that Mr Topp’s condition would inevitably deteriorate. His evidence was that the effects of that aggravation had, “in all probability”, ceased.
It is correct that Dr Fairley recorded in Dr Hughes’s notes on 20 March 2000 (not in Dr Fairley’s notes of 10 March, as submitted) that “with 600mg pethidine per week [Mr Topp] functions well at work”. However, that statement falls well short of Mr Elder’s submission that Mr Topp was “only able to sustain employment after 1996 due to high levels of narcotic medication”. In any event, the submission has failed to deal with the fact that, notwithstanding an increase in his medication after the fall (Mr Topp’s use of pethidine increased from three times per week to daily), Mr Topp has not been able to resume his pre-accident employment or general level of activity because of the significant increase in his symptoms since the fall.
Mr Topp’s medication increased in 2006 and 2007. Dr Theodorou, Mr Topp’s treating psychiatrist, recorded that, in March 2006, Mr Topp took a few extra tablets of OxyContin and, in June 2006, he took OxyContin twice daily and also 10–12 tablets of OxyNorm. In March 2007, Dr Theodorou recorded that Mr Topp appeared to have stabilised on 280 mg of OxyNorm daily. However, the doctor added that Mr Topp should seriously address the phasing out of pethidine. Mr Topp ceased using pethidine in 2007, but increased his consumption of OxyNorm. In 2008, the use of OxyNorm had increased further, with the occasional use of pethidine.
It is correct that Mr Topp’s increase in symptoms after the fall was on a background of severe longstanding low back pain. However, that does not diminish the weight and probative value of Mr Topp’s evidence that his symptoms have not returned to their pre-accident level and, as a result, he has not been able to return to his pre-accident activities.
The submission that the Arbitrator said (at [67] of her decision) that the cause of the worker’s total incapacity after 7 December 2009 was his “requirement to detoxify from his pain medication” was false. At [67] of her decision, the Arbitrator dealt with the relevance of the section 40(1) discretion. At [57], she said:
“The Respondent argued that there was no great increase in the amount of medication taken by the Applicant following the fall on 12 October 2005. I am not persuaded that this submission accurately reflects the evidence in this case, particularly the evidence from the treating doctors referred to above. I am satisfied that following the fall on 1 October 2005 the Applicant has needed to increase his levels of medication in order to control his pain. It is also clear from the medical reports that treating doctors were expressing concerns about the level of medication since March 2006. While there was no supplementary statement from the Applicant or further report from Dr Hughes or another treating doctor concerning the Applicant’s detoxification, Dr Hughes has certified him as unfit for work since 7 December 2009. It appears from the clinical notes that Dr Hughes has treated the Applicant since 1982 and saw him several times a month or even more frequently. Dr Hughes was, in my view, in a position where he was best able to assess the Applicant’s capacity for work and I would accept his opinion concerning the Applicant’s ability to work. On balance, I am persuaded that the Applicant was totally incapacitated from 7 December 2009 to date and continuing and that the injury in the fall on 12 October 2005 and subsequent increase in medication materially contributed to this period of total incapacity.”
The Arbitrator correctly noted that there had been an increase in Mr Topp’s medication after the fall and that that increase resulted from an increase in his symptoms because of the fall. Mr Topp’s evidence was that Dr Hughes told him in December 2009 that he needed to be taken off his medication because “long term use could be harmful”. Because of the expected side effects of ceasing medication, Dr Hughes certified Mr Topp unfit from 7 December 2009.
The appellant employer has called no evidence that the decrease in the level of medication in December 2009 resulted from Mr Topp’s pre-existing condition and not from the effects of the fall and its consequences. The Arbitrator properly considered the evidence on this issue and I agree with her conclusion and her reasons. Mr Elder’s submission that the reduction in pain medication was “entirely attributable to the pre-existing lower back condition” is untenable.
The appellant employer called no evidence that the level of the worker’s medication between 1996 and 2005 played a role in the need for Mr Topp to cease medication in December 2009. Other than noting that whether the reduction in medication caused the incapacity was a significant point in the case (T19.19), counsel for the appellant employer at the arbitration made no submission along the lines put by Mr Elder on appeal. Given the state of the evidence, it was not open to him to do so. The Arbitrator (generously) summarised counsel’s submissions (at [44] of her decision) on this point as follows:
“The Respondent submitted that the Applicant had been taking significant amounts of pain relief medication for many years preceding the injury on 12 October 2005 and therefore any need to reduce the long-term effects of taking such medication was not necessarily attributable to the injury in October 2005.” (emphasis added)
The Arbitrator properly addressed the evidence and the submissions made to her on the cause of Mr Topp’s reduction in his medication in December 2009. I agree with her conclusion that Mr Topp’s subsequent increase in medication materially contributed to his total incapacity.
It follows that I do not accept the appellant employer’s submission that the effects of the work injury have ceased. This submission was completely without merit, demonstrated a fundamental misunderstanding of the evidence and the issues, and failed to deal with the relevant evidence.
Total incapacity
Mr Elder submitted that Mr Topp was capable of performing sedentary duties in healthcare. This submission was based on the fact that the worker was undertaking further studies and that the “level of capacity required to pursue further study is equivalent to the level of capacity which would be necessary to undertake administrative duties in a hospital or healthcare facility”. He also submitted that Mr Topp undertook work experience at the Glebe Morgue from September to November 2009, which was “evidence of the worker’s partial incapacity to work”.
He submitted that, in respect of incapacity directly attributable to the work injury, Mr Topp was fit to perform “full-time administrative duties which would provide an equivalent pay level to the worker’s probable earnings but for the injury”. Those earnings were agreed at $1,280.00 per week from 3 March 2009 to 29 March 2009 and $1,330.60 per week from 30 March 2009 to date and continuing.
I do not accept these submissions.
That Mr Topp is totally unfit for work is consistent with the evidence from Drs Bleasel and Hughes.
Mr Topp’s part-time university studies are no indication of his capacity to return to work. His evidence (which I accept) was that, since his accident, he has had to modify his “learning methods”. He now avoids lab sessions and university attendances. He learns predominantly by external methods, such as the internet and listening to taped lectures. There is no evidence that such a capacity could translate into paid employment. The employer’s submission was without foundation.
Mr Topp’s work experience at the Glebe Morgue from September to November 2009 does not assist the appellant employer. Mr Topp performed that activity prior to Dr Hughes certifying him unfit for work on 7 December 2009. In any event, his activities during his work experience were extremely limited. He merely observed the doctors conduct autopsies and other procedures. He sat and stood at will, and was not required to do any lifting. In short, his role was merely to observe.
A better guide of Mr Topp’s capacity is found when one looks at his attempt to return to work on suitable duties in early 2006. He initially returned to work on one night per week, but, on attempting to upgrade to two nights per week, his back pain increased considerably and he stopped work in early June 2006.
As the Arbitrator correctly observed (at [41]), total incapacity is determined by having regard to the worker’s practical situation. As Mahoney JA observed in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213:
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, ie what work was the worker doing or could he reasonably be expected to do; and what kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned really in the abstract with work or work capacity as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the inquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a sense such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which will permit him to do work in the relevant labour market. The provisions of, for example, s 70 of the Act contemplate in my opinion that, in an appropriate situation, the Court will make assessments of this kind.”
The above principles are applicable in the present matter. Applying those principles, it is clear to me that, from 7 December 2009 to date and continuing, Mr Topp has been totally unfit for work because of the effects of the injury on 12 October 2005.
Mr Elder’s submission that Mr Topp has a residual earning capacity equal to his pre-injury earnings is unsupported by any evidence and is inconsistent with Dr Pillemer’s evidence. I do not accept it.
Section 40 discretion
Mr Elder submitted that the Arbitrator erred in refusing to exercise the discretion in section 40(1) of the 1987 Act. The exercise of the discretion only arises in respect of the period of partial incapacity from 2 March 2009 until 6 December 2009. In respect of the period of total incapacity, once it is accepted (as I have accepted) that the total incapacity resulted from the relevant work injury, the section 40 discretion has no application.
Mr Elder has made the following submissions on the exercise of the discretion:
(a)the Medical Appeal Panel assessed Mr Topp to have a 29 per cent whole person impairment due to the pre-existing condition of his lumbar spine;
(b)it is contrary to the medical evidence and to reason that total incapacity be attributed to an aggravation injury that occurred on a background of a 29 per cent whole person impairment and over 20 years of severe, continuing lower back pain;
(c)it was inevitable that the deterioration of Mr Topp’s lower back would result in a reduction of his capacity for work with the natural progression of time;
(d)Dr Matheson stated that the effects of the work injury did not prevent the worker from performing full-time nursing duties and that the incapacity related to the pre-existing injuries;
(e)Mr Topp experienced continuous and frequent aggravations, deteriorations and periods of incapacity from 1980 to 1996. During this period, he was only able to “sustain work due to narcotic medication”, and he had an “established level of incapacity which was not properly accounted for by the Arbitrator’s decision”;
(f)in 1998, Mr Topp underwent surgery to have a spinal cord stimulator implanted;
(g)Mr Topp suffered a spontaneous increase in his symptoms in May 2005, which was investigated by CT scan;
(h)Mr Topp suffered a continuing deterioration of his lower back condition since 1980. His symptoms recurred and worsened with the natural course of time. This natural worsening of his condition was not addressed and is relevant to the exercise of the discretion in section 40(1), which is a broad and unfettered discretion;
(i)the evidence gives rise to a clear basis to adjust the worker’s entitlement, given that it was highly improbable that he would have been able to continue in nursing irrespective of the injury in October 2005, given the pre-existing impairments, medications, requirements for treatment and pain, and
(j)the reduction should be to a nominal figure of $20 per week.
Counsel for the appellant employer at the arbitration (who has not prepared the submissions on appeal) also argued that any award under section 40 should be reduced to reflect Mr Topp’s pre-existing back condition, though he was unable to provide any authority in support of his submission (T20.27). The Arbitrator gave leave for both parties to refer her to any relevant authority on the issue within three days of the conclusion of the arbitration. Neither party did so. Mr Elder has referred to no authority in support of the submissions I have summarised above.
I do not accept Mr Elder’s submissions.
The courts have considered the exercise of the section 40 discretion in several cases. In Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526, it was observed (at 534F) that “the discretion is a broad one”. The discretion has been used in the following situations:
(a) where the worker has retired or suffered some supervening illness or injury (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 at 55 (‘Nicholson’), and Australia Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87);
(b) where the worker had been retired for two years before the injury, which occurred during a short period of work which was a one-off job (Pratt v Claydon (1996) 14 NSWCCR 86);
(c) where the worker was imprisoned during a period of partial incapacity (Stranlund v Mid Coast Meat Co Pty Ltd (1999) 19 NSWCCR 91);
(d) where, since the injury, the worker has been dismissed because of a criminal conviction (Morgan v Commissioner for Railways [1972] WCR 33);
(e) where, before the injury, the worker chose to work for only limited periods each year (Moy v Eisenhower 1967 WCR 137);
(f) where the worker was pregnant (Wrigley Co Pty Ltd v Holland (2002) 23 NSWCCR 463), and
(g) where a worker sustained injury while working two jobs and the court had regard to the practical impossibility of continuing two full-time jobs over any lengthy period (Erisir v Kellogg (Australia) Pty Ltd [1987] NSWCC 4; (1987) 3 NSWCCR 92).
In Nicholson, McHugh JA (as his Honour then was) held, at 54:
“The third step [the fourth step in Mitchell] in the process requires the Compensation Court to look at the circumstances of the case. The weekly payment awarded must bear such relationship to the differential amount – which is the result of the exercise under the first and second steps – as under the circumstances of the case is proper. This third step therefore calls for the exercise of a judicial discretion of a kind with which courts have long been familiar.
It is at this stage that the Compensation Court can and must examine all the facts. The matters which can be examined include such matters as retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
Applying the above authorities, I am not satisfied that there is any proper basis for the exercise of the discretion in respect of the award between 2 March 2009 and 6 December 2009. In that period, the Arbitrator found probable earnings to be as agreed between the parties (see [61] above). She determined Mr Topp’s ability to earn from 3 March 2009 to 30 June 2009 to be $512.00 per week and, from 1 July 2009 to 6 December 2009, to be $532.00 per week. Those figures equated to approximately 40 per cent of his pre-injury earnings. The appellant employer has not challenged those findings and I agree with them.
The difference between Mr Topp’s ability to earn and agreed probable earnings but for his injury was $768.00 per week from 3 March 2009 to 30 June 2009, and $798.60 per week from 1 July 2009 to 6 December 2009. The discretion in section 40(1) requires that the weekly amount awarded for partial incapacity must bear such relation to the amount of the reduction in the worker’s earning capacity “as may appear proper in the circumstances of the case”.
In the present case, Mr Topp had a significant back impairment prior to his work accident. Notwithstanding that impairment, he had been able to secure and maintain full-time employment with the respondent employer for several years. It was work that he enjoyed and was capable of performing. The respondent employer has called no persuasive evidence to suggest that he would not have remained in that employment had he not been injured. The increase in symptoms in 2005 was consistent with the nature of Mr Topp’s condition. His symptoms would fluctuate over time. The critical fact is that he continued with his full-time employment until his injury in October 2005. In these circumstances, I am satisfied that there is no basis for reducing Mr Topp’s section 40 award in the exercise of the discretion.
Section 60 expenses
Mr Elder has made two alternative submissions in support of this ground. First, if grounds one, two or three are accepted, the order for the payment of section 60 expenses must be revoked. As grounds one, two and three have failed, this issue does not arise. In the alternative, Mr Elder argued that, given Mr Topp’s pre-existing level of medication, the Arbitrator erred in “apportioning liability for all section 60 expenses to the injury dated 12 October 2005”.
Mr Elder’s second submission is inconsistent with the submissions made by the appellant employer’s counsel at the arbitration. Counsel submitted (at T7.23):
“The section 60 claim is not cavil [sic] with it, by way of any particular material, arbitrator, as I read it, it’s [sic] simply follows the findings in relation to the causal issue.”
The Arbitrator referred to this concession at [70] of her decision, where she (correctly) observed:
“I note that the respondent conceded that should the applicant succeed in his claim for weekly benefits then it would follow that he was entitled to a general order for s 60 expenses. I will therefore make a general order for the payment of s 60 expenses.”
As can be seen from the above passages, the question of “apportioning liability” for section 60 expenses never arose at the arbitration, and, as it would require further evidence from the worker to meet it, it is not permissible for the appellant employer to raise that as a new issue on appeal (Coulton v Holcombe [1986] HCA 33; 162 CLR 1). In any event, the appellant employer has called no evidence on this issue. In these circumstances, the Arbitrator’s general order that the appellant employer pay the respondent worker’s section 60 expenses upon production of accounts and/or receipts was appropriate.
CONCLUSION
Having conducted a review on the merits, I have determined that the Arbitrator’s determination is true and correct. This appeal was completely without merit. It had no prospect of success and should never have been filed. Mr Elder’s submissions were unsupported by any relevant evidence or authorities and, in one instance, referred to a document (Dr Matheson’s report) that was not in evidence.
On the face of it, there was no basis for the certification signed by Mr Elder under section 352(7A) of the 1998 Act in Part 3 of the Appeal Against Decision of Arbitrator and the costs associated with the appeal were unreasonably incurred.
Practitioners are reminded that the provision of legal services by a legal practice in an appeal without reasonable prospects of success is capable of amounting to unsatisfactory professional conduct or professional misconduct by a legal practitioner (section 345 of the Legal Profession Act 2004; Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60).
DECISION
The Arbitrator’s determination of 10 May 2010 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
1 September 2010
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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