Tamworth Local Aboriginal Land Council v Tighe
[2009] NSWWCCPD 148
•24 November 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Tamworth Local Aboriginal Land Council v Tighe [2009] NSWWCCPD 148 | |||||
| APPELLANT: | Tamworth Local Aboriginal Land Council | |||||
| RESPONDENT: | Sandra Tighe | |||||
| INSURER: | CGU Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-1432/09 | |||||
| ARBITRATOR: | Mr C Messenger | |||||
| DATE OF ARBITRATOR’S DECISION: | 9 June 2009 | |||||
| DATE OF APPEAL HEARING: | 20 November 2009 | |||||
| DATE OF APPEAL DECISION: | 24 November 2009 | |||||
| SUBJECT MATTER OF DECISION: | Reasons; failure to determine issues in dispute | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Ms E Wood, instructed by Sparke Helmore Lawyers | ||||
| Respondent: | Mr P Perry, instructed by McCabe Partners Lawyers | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 9 June 2009, so far as it relates to the applicant worker’s back injury and its effect, is revoked and the matter is remitted to another Arbitrator for re-determination. | |||||
| Each party is to pay her or its own costs of the appeal. Costs of the first arbitration are to follow the event of the second arbitration. | ||||||
BACKGROUND
The worker, Ms Tighe, started work with the Tamworth Aboriginal Land Council (‘the Land Council’) as a co-ordinator in about 1996. Apart from a six-month period in 2001, when she worked for Bidgara Motors, Ms Tighe worked continuously for the Land Council until an unidentified date in 2002.
On 21 June 2002, Ms Tighe slipped and fell onto her back in the back dining room of the Land Council’s office. The occurrence of the incident is not disputed, however, the extent and nature of any injury sustained in the fall is the subject of dispute and is discussed in detail in the course of this decision. The exact course of events after the fall, including where and when Ms Tighe obtained treatment, and when she finally ceased her duties are the subject of conflicting evidence and are considered below.
The Land Council’s workers compensation insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), accepted liability and paid compensation until 21 February 2004. In a letter dated 20 November 2008, Ms Tighe’s solicitors, McCabe Partners, claimed lump sum compensation in respect of a 52 per cent whole person impairment together with weekly compensation from July 2002 to date and continuing, and hospital and medical expenses.
Ms Tighe registered an Application to Resolve a Dispute (‘the Application’) in the Commission on 25 February 2009. The Application alleges that as a result of a “frank injury in June or July of 2002” Ms Tighe slipped because of spilt water on the floor and that she “became aware of immediate sharp pain in the right shoulder, right wrist and experienced severe back pain with pain radiating down the right and left legs”. It also alleges that Ms Tighe suffers persisting symptoms in her right knee as a result of an altered gait. Under “injury description” in the Application, the following entry appears “injury to back, neck, right upper extremity (shoulder), right wrist, left upper extremity, left and right lower extremity [sic]”.
In a Reply filed on 18 March 2009, the Land Council relied on a dispute notice prepared by CGU on the same date. That notice conceded that Ms Tighe injured her lower back in a fall at work on 21 June 2002, but disputed:
(a) that she suffered any injury to her neck, shoulders or legs as a result of that fall;
(b) that she suffers from any secondary injury to her right knee as a result of an altered gait;
(c) that the fall on 21 June 2002 was a substantial contributing factor to any neck, shoulder or leg injury;
(d) that she was incapacitated for work since 22 February 2004 when Dr Bohlsen certified her fit for pre-injury duties;
(e) that she suffers from any whole person impairment as a result of her low back injury, and
(f) that the medical expenses claimed relate to the low back injury, or that those expenses are reasonable and necessary.
At an arbitration hearing on 13 May 2009, Ms Tighe gave oral evidence and was cross-examined. In a reserved decision delivered on 9 June 2009, the Arbitrator was not satisfied that Ms Tighe had injured any part of her body other than her low back and legs. In respect of the injury to her back, the Arbitrator found that Ms Tighe continued to be incapacitated and he made an award of weekly compensation in her favour under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the maximum statutory rate from 1 October 2003 to date and continuing, but excluding the period from 17 January 2005 until 27 February 2005 when no claim for weekly compensation was pressed.
The Commission issued a Certificate of Determination on 9 June 2009 in the following terms:
“The Commission determines:
1. That the Respondent pay the Applicant weekly compensation pursuant to Section 40 of the Workers Compensation Act, 1987 for a single person as follows:-
(a) From 1 October, 2003 to 31 March, 2004 at the rate of $317.20 per week.
(b) From 1 April, 2004 to 30 September, 2004 at the rate of $323.00 per week.
(c) From 1 October, 2004 to 16 January, 2005 at the rate of 328.90 per week.
(d) From 27 February, 2005 to 31 March, 2005 at the rate of $328.90 per week.
(e) From 1 April, 2005 to date and continuing at the rate of $335.00 per week
Such weekly payments to continue in accordance with the provisions of the Act.
The Respondent is to be given credit for weekly compensation payments made for these periods.
2. That the Respondent pay the Applicant’s expenses under Section 60 of the Workers Compensation Act, 1987 in respect of the low back and legs upon production of Tax Invoices and/or receipts.
3. The Applicant suffered an injury to her low Back and legs on 21 June, 2002 arising out of the course of her employment with the Respondent.
(a) I remit the matter to the Registrar for referral to an AMS.
(b) The degree of permanent impairment in respect of the low Back and legs is to be referred by the Registrar to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a date of injury of 21 June, 2002.
4. The documents to be sent to the AMS are those accepted into these proceedings.
5. That the Respondent pay the Applicant’s costs as agreed or assessed.
6. The Applicant’s costs are certified complex pursuant to Schedule 6 Part B Table 4 Item 4 of the Workers Compensation Regulation 2003 and I allow a 20% increase for additional legal services.”
In an appeal filed on 7 July 2009, the Land Council seeks leave to appeal the Arbitrator’s determination but only so far as it relates to his implied finding that the effect of the admitted back injury are continuing. Ms Tighe has not challenged the Arbitrator’s finding that she did not injure her neck, right upper extremity (shoulder), right wrist, or left upper extremity. With respect to the alleged injury to the legs, she does not press a claim that she suffers symptoms in her right knee as a result of an altered gait, but does press a claim that she has leg pain and symptoms as a result of her back injury but not as a result of a direct injury to her legs.
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’).
It is not disputed that 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.
PRELIMINARY MATTERS
At the oral hearing of the appeal, Ms Wood of counsel represented the Land Council and Mr P Perry of counsel represented Ms Tighe. At the start of the hearing in the appeal, I advised that both parties appeared to be in breach of clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’), which provides:
“43 Restrictions on number of medical reports that can be admitted
(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause:
"forensic medical report":(a) means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.”
After allowing a short adjournment for instructions to be obtained, neither counsel disputed that their respective clients were in breach of clause 43. To remedy that problem, Ms Wood now relies only on the reports from Dr Shatwell of 7 January 2009 and 12 March 2009, but does not rely on the reports from Drs Loeve and Sekel. The report of 7 January 2009 is relied on as a forensic medical report under clause 43 and the report of 12 March 2009 is relied on (without objection) as a supplementary report under clause 43AA of the Regulation. Mr Perry now relies only on the report of Dr Glenn, a specialist who saw Ms Tighe at the request of CGU on 29 October 2002, but does not rely on the reports from Dr Mahony dated 12 October 2004, 23 August 2007, and 27 August 2008.
As a result of this development, Mr Perry amended the claim to delete the claim for lump sum compensation and I have made that amendment to the Application in the evidence file.
THE EVIDENCE
Ms Tighe’s evidence is set out in her statements dated 6 August 2007, 11 February 2008, and in her oral evidence at the arbitration. The 2007 statement appears to be an amalgamation of statements given on 16 September 2004 and on 21 May 2007.
Ms Tighe was born in 1961 and completed her high school education to the level of year 10 at Balmain High School. She then underwent a short-term course in office skills with Skillshare. At the same time she attended Skillshare she also worked cleaning offices. She then moved to Tamworth and secured a position as a respite care worker. She then worked on a poultry farm collecting eggs.
Exactly when Ms Tighe started with the Land Council is unclear. One part of her statement suggests that it was six years prior to giving her statement in 2004 (paragraph 8) and another part suggests that it was five or six years prior to her injury (paragraph 11). She was employed with the Land Council as a co-ordinator working from 9.00 am until 4.00 pm five days per week. Her duties included accounting, property management, organising meetings, liaising, setting up youth programs, and general office management.
She states that her accident occurred in June or July 2002. She describes her fall in the following way (paragraph 15 of her 6 August 2007 statement):
“As I came out of the toilet I walked back towards the kitchen and all of a sudden my feet went out from under me and I landed on my bottom. As I went down I put my right arm out to break my fall and I also suffered a jarring to my back, right shoulder and a strain to my right wrist.”
She states that she stayed on the floor for a number of minutes before she was able to get up and lie on the lounge in the office. Tanith Cooke, a secretary with the Land Council, assisted Ms Tighe to a lounge. She describes her pain as being “ten out of ten” and states that she had never experienced pain like it before and that it was a “very unreal feeling”. She attended on a local chemist to obtain some pain relieving medication, but they did not work and her pain “kept getting worse and worse”. At the end of the day she was in severe and constant pain and she claims that she attended at the doctors at the “Moore St Tamworth Hospital” and was given panadeine forte together with a script to obtain more from the chemist.
Ms Tighe then refers to having been on workers compensation payments for two years. At the time of her statement she was in receipt of a disability pension. She states that after her accident she saw Dr Bohlsen, general practitioner in Moree, and had x-rays taken. She then recounted that she was suffering from a lot of stress because of her back and right shoulder injury and was worried that she was not able to return to work. She suffered two heart attacks in 2003, one in January 2003 and the other in June 2003. Prior to her heart attacks she fell in December 2002 and fractured her right ankle.
In September 2003 she fell and fractured her left ankle. She claims at paragraph 29 of her 2007 statement that she believes her ankle problems were because she had been “walking differently to help protect [her] back and right shoulder”. She adds at paragraph 32 of her statement that had she not had such bad back pain leading up to the incidents when she fractured her ankles, she would not have fallen. She claims that prior to her fall in June or July 2002 that she was a very active person and that she “used to enjoy recreational activities” such as touch football, hockey, softball, basketball, camping, playing with her grandchildren, and attending to the usual household chores. Since her work injury, however, she has been depressed and Dr Whitnall, the surgeon who operated on her left ankle, prescribed medication for her depression.
Because of increased pain in her back and right shoulder, she has had difficulty getting comfortable in bed and most nights only sleeps three to four hours. Her partner, Harold Sampson, assists her into the bath and with dressing. When her back is really bad, Mr Sampson has had to help her off the toilet. She finds travelling in a car extremely painful. When her pain is bad she uses a walking stick. Under “summaries of injuries” at paragraph 43, she described constant pain in her back and right shoulder, neck pain, depression and loss of sexual function. She made no mention of any pain in her legs.
Under the heading “continuing symptoms – 21 May 2007” at paragraph 46, Ms Tighe said that she was “currently experiencing back pain with pain down both legs”. Because of that pain she found it difficult to walk for long periods.
In her 2008 statement, Ms Tighe complained that she had back pain and pain down both legs, which had been getting worse since her injury, and “more so over the last two years”. She also complained of “worsening problems with both knee [sic], both ankles, and right arm/hand”. She referred to having had a CT scan in 2007 which showed a disc protrusion that she believed was the cause of her increased left leg symptoms. She added that at the time of her fall in 2002 she had back pain and “after some time [she] noticed pins and needles type pain going down [her] right leg”. Because of her right leg pain she would lean heavily on her left side. However, after she fractured her left ankle she still favoured her “right leg because of the pins and needles in the right leg [sic]”. Over the preceding three years she noticed an increase in pins and needles and numbness in her left leg and foot.
At some stage she told Dr Lam, general practitioner, of the increased pain and symptoms in her back and left leg and that she was experiencing trouble with her bladder. In November 2007, Dr Lam referred her to Dr Johnson at Royal Brisbane Hospital. She continues to take morphine and endone for her pain. She attributes the pain in her back, neck, legs (including both ankles and both knees), right shoulder, wrist and right hand to her fall at work in 2002.
Ms Tighe seeks to rely on an undated and unsigned statement from Tanith Cooke. The statement refers to Ms Cooke helping Ms Tighe up from the floor and that Ms Tighe acted like she was not really hurt. Later that day, Ms Cooke observed that the worker seemed to be in more pain than she was letting on. From her recollection, Ms Tighe continued working for a period and then stopped because of her injury. She does not recall which body parts Ms Tighe injured in the fall. As Ms Cooke has neither signed nor adopted this statement, I do not intend to give it any weight.
Mr Sampson provided a statement on 16 September 2004, which he signed on 1 November 2004. He states that he has known Ms Tighe all of his life and has been in a relationship with her for the previous 15 months. Since he has been living with Ms Tighe, he noticed that her pain levels have increased and that she constantly suffers from pain in the right side of her neck, her right shoulder, down her arm, her back and pain radiating down both legs.
Medical evidence
The medical evidence in this case consists of the reports from the qualified specialists noted at [14] above together with dozens of pages of clinical notes. In order to fully understand the parties’ submissions, it is appropriate that I set out a very brief summary of Ms Tighe’s medical history before dealing in detail with the clinical notes relating to the June 2002 fall.
It seems that Ms Tighe’s main general practitioner is a Dr Strong at Tamworth. The notes from his practice cover the period from June 1982 until September 2003. The first recorded reference to back trouble in the notes is in September 1982 when Ms Tighe complained of back trouble since lifting. On examination she had a full range of movement and straight leg raising was normal.
Ms Tighe again complained to Dr Strong of “back pains – loin area” on 3 September 1988. On examination there was tenderness in the left loin lower abdominal area.
In May 1990, Ms Tighe again complained to Dr Strong of back pain, but the notes do not record any findings on examination or any specific symptoms.
In April 1995, Ms Tighe complained of right knee problems whilst collecting eggs in the course of her employment. She was referred to Dr Robert Creer, orthopaedic surgeon, who examined her in July 1995. Dr Creer took a history that she struck her right knee on a rock in the process of bending under an A-frame to pick up eggs. She underwent an arthroscopy on her right knee in September 1995 and again in September 1996. The second operation revealed moderately severe chondral damage to the medial femoral articular surface with mild degenerative changes.
On 16 May 1997, Ms Tighe complained to Dr Strong of a painful shoulder and gave a history of a “few recent falls”. She also told Dr Strong on 16 June 1997 that she had attended on a doctor from the after hours roster who provided her with a steroid injection into her right acromioclavicular joint.
The knee operations gave her little relief and Dr Creer performed a high tibial osteotomy on Ms Tighe’s right knee in July 1997. She was recovering well from that surgery until mid August 1997 when she had a spontaneous onset of pain around the region of the osteotomy and was unable to weight bear. In October 1997, Ms Tighe had a fall and injured her right knee and right shoulder.
Ms Tighe remained under Dr Creer’s care for her right knee through until 1999. In that period she complained on various occasions of walking with a marked limp and of pain in her right foot. Dr Creer felt that she needed house cleaning services in mid 1998.
Dr Creer performed a revision high tibial osteotomy with bone graft on 30 March 1998. Ms Tighe appears to have made a reasonable recovery from that surgery, but Dr Creer reported on 2 June 1998:
“Up until three days ago, she was going very well and had stopped the analgesics and anti-inflammatory tablets and was walking with only slight intermittent discomfort. Three days ago, she developed spontaneous lower back pain, radiating down the left leg to the dorsum of the foot; this was associated with tingling down the lateral side of the lower leg onto the dorsum of the foot and she feels that her leg has been heavier. She had no bowel or bladder abnormality, no perineal sensory changes.”
On examination, Dr Creer noted that there were no sensory changes in the lower leg, though she reported that the foot felt heavier and was weaker. She was able to stand on her heels and toes without any problem and power in all muscle groups appeared to be normal. Straight leg raising reproduced pain down the back of the leg and lower back. Dr Creer suspected that Ms Tighe had a disc abnormality in her lower lumbar spine and he referred her for a CT scan and x-rays and prescribed voltaren.
On 7 November 1998, Ms Tighe attended on Dr Strong. The doctor’s notes record “lumbar spine disease – pain a problem”. He appears to have prescribed endone.
Dr Creer’s last report appears to be his report of 21 December 1998 when he continued Ms Tighe on selected light duties until 1 March 1999. He felt she would be able to resume normal duties after that date and he made no firm plans to review her unless required.
On 25 October 1999, Dr Carmody, orthopaedic surgeon, removed the screws and plate in Ms Tighe’s right upper tibia. Dr Carmody reviewed Ms Tighe in December 1999 when she said that her knee was improving though she complained of some swelling. She had a good range of movement, but still had significant wasting of the quadriceps.
Ms Tighe attended on Dr Strong again on 22 July 2000 complaining of her right side “dropping” and saying that her major complaint was “sleep problems”.
On 22 February 2001, Dr Strong recorded that Ms Tighe complained of backache. The notes raise a question about poor diabetes control.
On 19 June 2002, Ms Tighe attended at Dr Strong’s practice and gave a history that she had had a hysterectomy in February 2002 and that she had “RIE pain”. It appears that panadeine forte was prescribed.
Ms Tighe again attended at Dr Strong’s practice on 3 August 2002 complaining of an abscess on her right arm.
On 8 August 2002, Ms Tighe attended at Dr Strong’s practice. The notes refer to the abscess and add, “fell at work two weeks ago”. Whilst the notes are difficult to read, they also appear to refer to tender “PV musculature” (it is agreed that “PV” means paravertebral) and to “stress at work”.
On 28 August 2002, Ms Tighe again attended on Dr Strong. His notes record:
“Says injured back at work in June.
Co-ordinator Aboriginal Land Council – slid and fell onto bottom and jolted her low back – painful ever since – pain lower lumbar area. Says radiates into stomach.
(Prob 18/6/02?) Saw Dr Campbell Smith re the RIE pain on 19/6/02 and said had pain fr 1/12.
Saw Dr Strong re the back injury.
Dr Campbell Smith ordered an u/s in June but she hadn’t had it yet.
Had hysterectomy in Feb and (L) ovary was preserved.
Currently has been stood down from her job –
Not to do with her back injury, she says
Has seen a lawyer – wants her to get WorkCover cert.
Current [medication] nurofen plus/vioxx.
Her job involves cleaning sometimes.
O/e tender RIE no guarding /MSS
Tender L5/S1, (L) SIJ, cocoyx [sic]
Flexion - 45° SLR 70° L+R
→ pain in back only Reflexes PP
? RIE pain is a separate issue related
to ovary?
Note conflict re dates of injury.”
Dr Strong provided a script for vioxx and panadeine forte.
Ms Tighe saw Dr Strong again on 16 September 2002 complaining that her back pain was persisting. The notes record “lower lumbar → legs”. On testing for straight leg raising the notes record “active resistance at 30°”. The notes then add “(? pain cause)”.
Ms Tighe again saw Dr Strong on 9 October 2002 when he recorded “low back pain after slipped and fell at work in June”. On examination he noted tenderness at L3/4, no swelling, a limited range of movement. In respect of “other neurovascular exam” the doctor has merely entered a tick.
Ms Tighe again attended at Dr Strong’s practice on 26 October 2002 stating that she had fallen over the day before and landed on her shoulder.
On 29 October 2002, Dr Glenn, specialist, examined Ms Tighe at the request of CGU. He noted that she had not worked for the previous two months because of her back injury. He also recorded that Ms Tighe said that, “apart from her right knee problems, her general health was excellent and that she took no regular medication and had had no problems with her back or leg prior to her injury of “21 July 2002”. He took a history that she slipped and fell onto her buttocks on 21 July 2002 and twisted her back. She felt severe pain in her lower lumbar region and consulted a local pharmacist who suggested she see her general practitioner. She subsequently attended the rooms of Dr Strong. Since she had been off work there had been some improvement in her back, but she still had “quite severe pain in the lower lumbar region radiating into both buttocks and down the back of the left leg”.
On examination, Dr Glenn noted some flattening of the normal lumbar lordotic curve. There was a full range of painless movement of the cervical spine. Flexion of the thoraco-lumbar spine allowed the fingers to reach the mid calf. Extension, however, was restricted to 20°. Lateral flexion and rotation in both directions were two-thirds of the expected range. There was no evidence of spasm of the sacrospinalis muscles. There was no measurable muscle wasting and reflexes were present and equal with no loss of power. There was some diminution of sensation over the anteriolateral aspect of the left thigh and upper part of the lower leg.
Dr Glenn concluded that Ms Tighe had suffered a musculo-ligamentous injury to her lower back, but in the absence of radiological studies it was not possible to exclude the possibility of a significant disc injury. The absence of those studies also made it difficult to predict her future incapacity or need for further treatment. However, as Ms Tighe had made some improvement, Dr Glenn felt that she would probably be fit to return to part-time light duties within two to three weeks with the hope of returning to full-time employment over a period of six to eight weeks. Ms Tighe appeared to be a conscientious straightforward woman who had a significant back problem. She required further investigation and treatment.
Ms Tighe attended on Dr Strong’s practice on 26 November 2002 complaining of a right ankle injury after a fall three weeks earlier.
Ms Tighe attended on Dr Strong’s practice complaining of low back pain on 16 January 2003, 2 February 2003, 14 April 2003, 30 May 2003, 27 June 2003, 21 July 2003 and 2 September 2003. The attendance on 21 July 2003 is of some significance as the note on that day records that Ms Tighe had fallen 10 days earlier and that her low back pain was worse. Similarly, on 2 September 2003, the notes record that Ms Tighe’s low back pain was worse, and that she was “unable to move, pain radiated to leg”.
In January 2003, Ms Tighe developed severe chest pain and was referred to a cardiologist who arranged for a coronary angiography on 27 May 2003. On 8 June 2003 Ms Tighe suffered a further heart attack and was admitted to hospital. She underwent surgery and was discharged on 13 June 2003.
Ms Chamberlain, injury management professional with Inergise Australia Pty Limited (‘Inergise’), examined Ms Tighe on 12 February 2003. In her report of 18 February 2003, it was recorded that Ms Tighe had a poor recollection of the date of her injury and the subsequent events. Ms Chamberlain recorded that Ms Tighe fell onto the floor and landed on her right hand, jarring her shoulder. She experienced sharp pain up and down her back and down both legs. She claimed to have seen Dr Strong the day after her fall for her back pain and painful right shoulder and to have been issued a WorkCover certificate for two weeks. At the end of the two weeks she said she returned to work but her back pain continued and she was experiencing tingling in her feet. She continued working until 21 July 2002 and had been off work ever since.
Ms Tighe reported to Ms Chamblerlain that in mid November 2002 she twisted her left ankle, which caused her to shift her weight to her right foot and to fall onto her right ankle causing a fracture of the right ankle. She claimed that her back pain directly caused the fracture to the right ankle. She said she was bored and frustrated at home and wanted to return to work, though expressed a concern that she felt her employer did not want her to return to her position and that was causing additional stress. Ms Chamberlain noted that Ms Tighe was to see a cardiologist in Sydney and that the outcome of those investigations would have a direct impact on her return to work.
Dr Strong reported to CGU on 12 March 2003 in terms consistent with the above notes. In particular, he confirmed that his examination on 8 August 2002 revealed no objective signs. However, Ms Tighe did complain of tenderness of the left lumbar paravertebral musculature on that day. In respect of the entry on 28 August 2002, Dr Strong confirmed that Ms Tighe claimed that she had injured her back at work in June when she fell landing on her buttocks and jolting her lower back which had remained painful. He also confirmed that she said she had been “stood down” from her job. His report adds that Ms Tighe failed to keep appointments on 18 September 2002, 8 November 2002, 15 January 2003 and 14 February 2003. He confirmed that he prescribed anti-inflammatory medication together with analgesics and that he recommended physiotherapy and x-rays. His records contained no details of whether the x-rays were performed. Under the heading “work restrictions”, Dr Strong said:
“The musculo-skeletal back pain with which Sandra Tighe first presented should have resolved over a period of weeks. Return to normal duties would have been expected.”
Under “Prognosis”, Dr Strong added:
“As stated above, a full recovery should have occurred. However, the initial alleged injury was complicated by further falls and injuries. Furthermore, the medical records contain conflicting dates as to when the initial injury occurred. The failure to attend several medical appointments is of concern, and raises the possibility of poor compliance with suggested treatments.”
On 28 July 2003, Ms Chamberlain again reported on Ms Tighe’s progress. It was noted that Dr Li (general practitioner in the same practice as Dr Strong) had certified Ms Tighe fit for suitable duties from 21 June to 27 July 2003. As a result, Ms Chamberlain met with Mr Paul Craigie, treasurer of the Land Council, to discuss Ms Tighe’s return to work. At the suggestion of Mr Craigie, Ms Chamberlain contacted Mr Chris Allen, area manager of the Northern Regional Land Council, who advised that Ms Tighe was being investigated for her work at the Land Council and that they were not in a position to offer Ms Tighe employment until the investigations were finalised.
On 9 September 2003, Ms Tighe attended at Moree Plains Health Services complaining of a painful left ankle. She was admitted to hospital for treatment of a fractured left ankle and discharged on 19 September 2003.
Also on 9 September 2003 (referred to as 29 September at T36.18 of the cross-examination), Ms Tighe attended at the emergency department at Moree Hospital. She gave a history of having fallen the week before and of having a painful left ankle, and feeling tightness in her chest. The notes record, among other things, “twisted back again -- trouble since 2002”.
On 21 October 2003, Ms Tighe underwent a lumbar spine x-ray on referral from Dr Peter Whitnall. That x-ray revealed early degenerative changes at the L1/2 interspace. Elsewhere, the vertebral bodies and intervertebral disc spaces were well preserved.
On 10 December 2003, Ms Tighe attended on Dr Bohlsen, general practitioner at Moree, having previously seen a locum at that practice in October 2002. In his report of 28 February 2005, Dr Bohlsen recorded that Ms Tighe complained of pain in her back and requested analgesia and a medical certificate. He prescribed vioxx and tramal for her pain. In respect of the work injury, he recorded that she fell over at work having slipped on water. She did not see a doctor at that time and was “vague with this history”.
Dr Bohlsen reviewed Ms Tighe on 16 January 2004 when she continued to complain of back pain. Examination revealed her to have a very restricted range of movement. Dr Bohlsen issued another certificate declaring her to be unfit from 31 January to 15 February 2004.
On 13 February 2004, Dr R Sekel, consultant in occupational medicine qualified by CGU, contacted Dr Bohlsen while Dr Sekel was interviewing Ms Tighe at the request of CGU. There then ensued a three-way conversation between Dr Bohlsen, Dr Sekel and Ms Tighe. Dr Bohlsen added:
“According to his [Dr Sekel’s] report and the letter from CGU, Sandra has not had any form of treatment for her back injury prior to her consulting me. She had not had any physical treatment since I saw her despite this being suggested. She has had review of her unrelated medical conditions. With her agreement we arranged to certify her fit for her normal duties as there was little evidence of actual work injury to her back or much restriction of movement when she was examined by him. I provided a certificate stating she was fit for her normal duties from 22/2/2004.”
Ms Tighe saw Dr Bohlsen on 27 February 2004 with multiple forms to complete for Centrelink. She then returned on 11 May 2004 complaining that her back had “become aggravated”. He reviewed her on six further occasions between August and December 2004 and on each occasion she complained of back pain and various treatments were tried. In addition, he noted that her diabetes had become poorly controlled. Despite her pain, she seemed to be capable of caring for her father who was ill during that time. Dr Bohlsen concluded in his February 2005 report:
“Sandra seems to have fluctuating levels of back pain that are excessive compared to the original injury. She has multiple medical and social problems that compound her condition. I do not feel that the back injury is consistent with what was a minor injury originally. She has had much more significant injuries (i.e. fractured ankle) that have not caused her any ongoing problems. Those other injuries have not been compensable. I feel that Sandra has a very limited capacity to work due to her ongoing medical and social problems. This is because of her poor general state of health, poor diabetes control and her continuing pain. I do not feel that very much of her inability to work is as a result of her previous employment as a [sic] office worker but because of the reasons stated above.”
Dr Bohlsen felt that Ms Tighe’s prognosis was poor due to her poor motivation, as well as her medical illnesses.
Ms Tighe again attended at Moree District Hospital on 20 December 2004 complaining of having experienced several episodes of chest pain. Her past history was noted to include diabetes and back pain. Between 2005 and August 2008, Ms Tighe attended at the emergency department of Moree District Hospital on approximately 28 occasions for various reasons including chest pains, ear infection, headaches, a lump at the back of her head, and blood in her urine. The only attendances that appear to be relevant to the current claim were on 26 October 2007 when she requested analgesics for sciatica and on 9 July 2007 when she complained of back pain, which was increasing and radiating into the right leg.
Ms Tighe again attended at Moree Plains Health Services on 21 December 2004 complaining of chest pain.
Dr Bohlsen prepared a report addressed to Ms Tighe on 18 January 2005 stating that she suffered from back pain and had had a relatively recent exacerbation.
Ms Tighe again presented to the Moree Plains Health Services complaining of chest pain on 19 August 2005. She was admitted to hospital and discharged on 23 August 2005.
Ms Tighe presented to the Hunter New England Area Health Service on 13 March 2006 and was admitted to hospital until 20 March 2006 for treatment of epigastric pain leading to dyspepsia and for unstable “IDDM”.
Ms Tighe was admitted to hospital again overnight on 16 May 2006 because of chest pain. The nursing report also refers to depression.
Ms Tighe was again admitted to Moree District Hospital between 17 and 23 February 2007 because of bronchitis and hyperglycaemia. The discharge note refers to the final diagnosis being uncontrolled diabetes and depression. She was again admitted to Moree District Hospital on two further occasions in March 2007 for her diabetes and depression.
At the request of Dr Shepherd, medical practitioner at Moree, Ms Tighe underwent a lumbo-sacral CT scan at Moree Radiology on 2 March 2007. The radiologist, Dr Wong, reported that the scan revealed slight broad based disc bulging at L2/3, L3/4, L4/5, and L5/S1, but no convincing evidence of nerve root compression.
Ms Tighe underwent a further CT scan of her lumbo-sacral spine on 2 November 2007. This scan was also performed at Moree Radiology, but the radiologist this time was Dr Duffy. His report recorded a history of back pain radiating to the left through the buttock, the sacroiliac joint region and to the leg. Dr Duffy noted that a previous CT scan in March 2007 had been undertaken to investigate decreased right ankle and knee jerks and right-sided sciatica. He confirmed that the March scan only revealed minor changes and added, “a follow-up examination on 2 July 2007 again demonstrated no specific lesion”. The July scan is not in evidence. The previous “examinations” were not available for Dr Duffy to review. On the occasion of the November scan, the radiologist adopted a different “technique” to that used in March 2007. He took a “lateral digital radiograph” of the lumbar region and “spiral CT examination” from L2/3 to S1, as opposed to the transverse sections obtained in the first scan.
The November scan revealed a prominent central disc protrusion displacing the thecal sac at L4/5. On 8 November 2007, Dr Shepherd referred Ms Tighe to a Dr Walker, surgeon at Briz Brain & Spine in Brisbane for opinion and management. The referral letter stated that she had had severe left sided lower back pains for “the last four weeks, at least”. The pain went down her left leg and caused her to walk with a limp favouring her right side. Neurological examination was difficult.
Dr Walker arranged for Ms Tighe to be admitted to Royal Brisbane and Women’s Hospital on 14 November 2007 where she was under the care of Dr Johnson. The discharge summary from that hospital identified Ms Tighe’s “presenting complaint” to be “lower back pain with left-sided sciatica symptoms for three months”. Whilst in hospital an MRI scan was performed on 15 November 2007 which confirmed a left sided L4/5 disc extrusion that compromised the left L5 nerve root. The scan also revealed broad based bulging at L5/S1 and a protrusion at L1/2.
The emergency department patient records from the hospital for 14 November 2007 record Ms Tighe’s presenting complaint to be:
“Pain from lower back down (L) leg. Pt can not lay down. Pain same since Aug. Dr referred pt to here. Pt taken nothing for pain since 0100 hrs this am.”
Under “History and Examination”, the following is recorded:
“46 yro ♀ referred by Dr David Walker for Mx of severe sciatica related to large L4/L5 disc prolapse.
- Poor historian, vague.
HxPC – did back few years ago after slip → landed on back.
→ Had plain XR showed osteoarthritis of back
- back pain ongoing until August this year- radiates down left leg and right leg
- in August – noticed difficulty getting out of car.
- had been limping since
- Saw GP last Thurs → gave referral to see Dr Walker
- Had private CT lumbar – 1-2 wks ago. (Family tobring films)
- Pain aggravated by sitting down
‘throbbing’ pain travels down sp through to lower calf
Pain (L) > (R)”
The history also referred to Ms Tighe’s heart attacks, diabetes and left ankle surgery. On a separate page headed “progress notes” the following history is recorded:
“Low back pain with (L) sciatica for three months
No bowel/bladder disturbance
No history of trauma/injury”
The progress notes added that it was not possible to assess Ms Tighe’s gait because she was unable to get out of bed due to pain.
Ms Tighe was discharged on 16 November 2007.
On 27 November 2007, Ms Tighe had a trial L5 nerve root injection without relief of her symptoms.
On 7 December 2007, Dr Lam referred Ms Tighe back to Dr Johnson for further review. That review appears to have been conducted on 27 February 2007 by Dr Tsahtsarlis, neurosurgery registrar for Dr Johnson. He noted that the nerve root injection on 27 November 2007 improved Ms Tighe’s symptoms temporarily, but the pain and decreased sensation recurred shortly after. He thought she should be considered for an L4/5 microdiscectomy.
Dr Shatwell, consultant in orthopaedic and accident surgery, examined Ms Tighe at the request of CGU on 6 January 2009. In his report to CGU on 7 January 2009, Dr Shatwell recorded that Ms Tighe said she slipped and fell heavily onto her buttocks at work on “21 July 2002 [sic]”. She partially broke her fall with her outstretched right hand. She was helped up by a co-worker, but had pain in her lower back and legs which she described as “throbbing”. She rested while medication (nurofen) was purchased from a nearby chemist. She took that medication and was driven home by a co-worker at about midday and an appointment made for her to see Dr Strong. X-rays were arranged and she was sent for physiotherapy that did not do her any good.
Ms Tighe tried bathing in the hot pools at Moree, but with no relief of her low back and leg pain. She said she continued to have chronic low back pain that was aggravated by activity and relieved by rest. On occasions, she had exacerbations of pain without provocation. On examination, Ms Tighe stood with a loss of lumbar lordosis. She had a full range of neck movement without discomfort. She complained that lifting her arms above her head aggravated her low back pain. She was able to flex forward to the level of her kneecaps before pain in her lower lumbar region became a problem. Lumbar extension was limited to a few degrees and rotation was moderately restricted. There was no sign of muscle spasm in the lumbar region.
Dr Shatwell concluded that it was “highly unlikely that the injury described would have resulted in anything more than a temporary soft tissue injury”. He felt that the chronic low back pain Ms Tighe described was probably the result of constitutional degenerative change in the lumbar spine. He did not consider that her current symptoms were in any way related to the fall in 2002.
Dr Johnson reviewed Ms Tighe on 5 February 2009. He noted that her lower limb and neurological symptoms had progressed to include right-sided dysaesthesia and that she was having difficulty walking. She complained of pain down both thighs and calves into her feet. Ms Tighe appeared willing to proceed with back surgery which was planned for 16 February 2009.
Dr Shatwell prepared a supplementary report on 12 March 2009 in which he commented on the reports from Drs Strong and Bohlsen and the radiological investigations referred to above. Dr Shatwell concluded:
“Ms Tighe’s history does not suggest a severe lumbar spinal injury occurring on 21 June 2002. She did not seek help from a General Practitioner until some 7 weeks following the injury. Ms Tighe told me that there were problems at work and that she was ‘stood down’ from her job in August 2002”.
Dr Shatwell noted that Ms Tighe did not have the x-rays recommended by Dr Strong in August 2002 and that no back x-rays were performed until October 2003. He felt that the delay probably indicated that Ms Tighe’s lumbar pain was not particularly severe, though he acknowledged that she had other problems that may have been more pressing during that 14 month period. He also noted that she fell on or about 26 October 2003 when she injured her right shoulder. She “appeared to have further problems with her back in March 2007” leading to three CT scans of the lumbar spine in that year. Those scans were performed on 2 March 2007, 2 July 2007 and 2 November 2007. The last of those scans showed a prolapse at L4/5 for the first time. As that finding had not been present previously, Dr Shatwell concluded that it was “not the result of the injury on 21 June 2002 which occurred some 5 years previously”.
Dr Shatwell noted that there were no signs of any neurovascular deficits in the lower limbs at his examination in January 2009 and that straight leg raising did not produce nerve root tension signs. There was evidence of minor disturbance of sensation over the outer aspect of the left foot, probably due to the operation on the left fibula following the fracture in September 2003. He found no obvious weakness or significant wasting of the lower limbs to correlate with L5 nerve root compression by a disc prolapse. There was no significant muscle guarding or spasm, no asymmetric loss of range of motion or non-verifiable radicular complaints and no significant radiculopathy. Dr Shatwell also noted that he had not been provided with any evidence of medical follow-up during the two years between 2005 and 2007.
Dr Shepherd prepared a short hand written report on 8 May 2009 in which he referred to the three CT scans of March, July and November 2007 and a fourth CT scan dated 11 August 2008 (not in evidence) which did not show the disc protrusion revealed on the November 2007 scan. He stated that there was a “reasonable chance” that the previous CTs “MISSED a significant lesion in 04, as 3 of 4 CTs since 07 appear to have not demonstrated it”. The reference to “04” is unclear as there is not evidence that any scan was performed before 2007.
The Land Council’s Lay Evidence
The Land Council relies on statements from Mr Donald Craigie and Mr Paul Craigie. Donald Craigie was the volunteer secretary for the Land Council in 2002 and became its chairperson in 2009. He refers to an audit conducted by Andrew Hoholt, certified practicing accountant, dated 10 October 2002 in which Mr Hoholt raised several “issues of concern” relating to Ms Tighe’s conduct with the Land Council. Mr Hoholt stated that if the issues of concern were proved, they could constitute grounds for dismissing Ms Tighe, but he urged the Land Council to wait for a final investigation report and, if necessary, to seek legal advice before proceeding with any such action. As a result of Mr Hoholt’s report, Mr Craigie states that the Land Council dismissed Ms Tighe.
Paul Craigie was a board member of the Land Council between 1990 and 1992 and again between 1995 and about 2005 or 2006. During Ms Tighe’s last years with the Land Council it came to his attention that there was a problem with a couple of cheques she had written. In addition, he alleges that it came to his attention that she had claimed Centrelink payments under different names from Tamworth, Quirindi, and Gunnedah. He reported the matter to the head office of the State Land Council in Sydney and was instructed to have an auditor check the Land Council’s books. Mr Hoholt was engaged to conduct that audit and submitted his report on 10 October 2002 indicating that he found Ms Tighe had acted fraudulently and recommending that the matter be forwarded to the police for investigation. The Land Council’s board then met with Ms Tighe and told her that it was highly likely she would be dismissed. Ms Tighe became aggressive and left the office. The board and the community of the Land Council met about a week later and passed a resolution that Ms Tighe be dismissed. Mr Craigie does not know the dates on which these meetings were held. The relevant books and records in relation to the alleged fraud by Ms Tighe were delivered to the Tamworth police, but Mr Craigie is not aware of the action, if any, the police took.
Mr Malvern, chartered accountant, conducted a further investigation into the matter in late 2002 and early 2003. In his report of 25 March 2003, Mr Malvern concluded:
“We believe misappropriation of funds has been instigated by Ms Sandra Tighe through the use of Tamworth Local Aboriginal Land Council funds for a personal benefit, relating to fuel accounts, telephone accounts and possible travel expense reimbursements, to the extent of items detailed in our aforementioned report (under comments on expenditure). We did request from both the Tamworth Local Aboriginal Land Council Office Executive and Regional Office in Quirindi a list of all the known transactions relating to Ms Sandra Tighe. This has not been forthcoming at the date of this report. We are therefore not able to form a final conclusion as to whether we have revealed all the relevant transaction[s] in this area of opinion.”
Mr Malvern recommended that the Land Council be placed under a management agreement and that office bearers and staff be given formal training with respect to their statutory requirements cum bookkeeping and other matters.
Ms Tighe’s oral evidence at the arbitration
The key features of Ms Tighe’s oral evidence in chief are:
(a)she suffered no back pain while doing long drives in the course of her work with Bidgara (T6.5-23) or in the year prior to her injury (T6.43);
(b)she enjoyed her work at the Land Council (T6.48) and was physically active, playing touch football (T6.54);
(c)the back pain she experienced in 1982 lasted a couple of days or several days (T7.30);
(d)her back pain in 1995 was on the right side and her current problems are in a different place (T8.13-27);
(e)the back pain she had in the late 1990s into February 2001 was just from time to time and was never as severe as after her fall in June 2002 (T8.34-47);
(f)the 1998 pain in the back and leg did not last long and went away completely (T9.1-6);
(g)the back pain in February 2001 was only in the back and only lasted a couple of days (T9.20);
(h)the pain she felt when she fell in June 2002 just went “straight through” her and she had “never felt that pain before”. She started to sweat like she was having a heart attack, she was “too scared to move” and “thought she had broke something” (T10.45-49);
(i)she has never been free of pain in her back after her fall in June 2002 (T10.51-55);
(j)the fall in October 2002 made her back “a bit worse” (T11.11-16) but it was “still the same pain from when” she had the first fall (T11.34-39);
(k)her back pain “got worse” from the November 2002 fall (T11.49-54) and that pain was similar to the pain she was already getting and “It just didn’t settle down at all” (T12.2);
(l)she was in pain when she saw Dr Sekel and explained that to the doctor (T13.3). She did not agree that she would be deemed fit for her pre-injury duties (T13.11-13);
(m)she continued to have back pain when she saw Dr Bohlsen after seeing Dr Sekel and knew that, with that back pain, she wouldn’t be able to do her duties at work (T13.46-49). She did not ask Dr Bohlsen to certify her fit, the doctor in Sydney (Dr Sekel) told her that he stopped her workers compensation and had rung Dr Bohlsen (T13.55 – T14.2), and
(n)she had continuing pain in her back and legs (T15.43-49), did not feel fit for any work (T16.6-8) and had not been fit for any work since her admission to hospital in November 2007 (T16.10).
In cross-examination, Ms Tighe said:
(a)she had not been referred to a specialist in 2007 because of severe back pain. She “kept pestering them [the doctors] to send [her] further” and Dr Lam referred her for a CT scan (T16.33-52);
(b)she did not see Dr Strong the day after the fall because she could not get out of bed (T19.28-33);
(c)she did not work after the fall and before seeing Dr Strong (T19.35-38, T20.4 and T35.23-28);
(d)she could not really remember how long she had back pain in 1982, 1984, and 1998 but it was a couple of days or something like that (T19.43-51);
(e)she could not remember how long she waited to see the doctor (T20.33-38);
(f)she agreed that she did not mention her back to Dr Strong on 3 August 2002 (T22.31-34) and that she was off work in excruciating pain until she saw Dr Strong (T22.36). She did not mention it (her back pain) to the doctor on 3 August 2002 because all they want to give her is needles and she hates needles (T22.40-43). She did not ask for painkillers because she had endone for her knee (T22.50);
(g)when questioned about the history she gave to Dr Strong about when the fall occurred, she said she couldn’t remember how long ago it was and “When you take them tablets you don’t remember nothing” (T23.19-22);
(h)she agreed that the first time she complained of suffering any injury other than her back was when she complained on 26 October 2002 that she’d fallen over on 25 October and hurt her shoulder (T23.39 to T24.1), but that wasn’t the first time she had noticed shoulder pain (T24.5);
(i)her legs gave way causing her to fall in July 2003 (T24.32);
(j)she agreed that she told the doctor on 2 September 2003 that her low back pain was worse (after a fall in July 2003), she was unable to move, the pain radiated to her leg, her left spine was tender, and she had a limited range of movement (T24.37-48);
(k)she agreed that she made no mention to Dr Bohlsen about her neck, arms, shoulders or knees through 2004 (T25.58 to T26.3);
(l)she agreed she had been convicted for 13 counts of deception in 1989 and sentenced to 300 hours of community service (T26.31-37);
(m)she ceased work at the Land Council because of her back (T34.19-24). She denied having been dismissed, adding “After I left, then they dismissed me. They had to dismiss me while I was on workers comp so they can employ another worker” (T34.30-36);
(n)she asked the Land Council to dismiss her so they could employ someone else (T35.51), and
(o)she agreed that she twisted her back in September 2003 when she went to get out of a car (T36.12-29).
The Arbitrator’s Reasons
In a reserved Statement of Reasons (‘Reasons’) delivered on 9 June 2009, the Arbitrator made the following observations and findings:
(a) Ms Tighe had failed to establish that she had injured any part of her body other than her low back and legs in the accident on 21 June 2002;
(b) neither Dr Bohlsen nor Dr Sekel appeared to have obtained a full history from Ms Tighe as to the nature of the fall in June 2002. That was understandable because of Ms Tighe’s inability to properly communicate with medical practitioners. Ms Tighe presented as a person who was rather vague at times and a poor historian. It was the Arbitrator’s impression that Ms Tighe was a person who was not forthcoming with complaints; something corroborated by Ms Cooke who said Ms Tighe had never been one to complain. In these circumstances, the Arbitrator discounted the opinions of Drs Bohlsen and Sekel as they had been unable to obtain sufficient information for a proper assessment of the fall in June 2002 (Reasons at [36]);
(c) it was difficult to accept Dr Shatwell’s conclusion when he was not aware of the opinion expressed by Dr Glenn in his report of 29 October 2002. The assessment of Ms Tighe’s ultimate problems must be seen in the light of the fact that she was only seen by general practitioners for a period of nearly five years without any real effort being made to investigate her symptoms or provide specialist advice (Reasons at [38]);
(d) though some weight had to be given to the investigation report of 25 March 2003 (from Mr Malvern), he did not make a finding based solely on that material (Reasons at [41]);
(e) at times during Ms Tighe’s oral evidence, she was hesitant and not forthcoming, particularly in relation to the extent of her injuries prior to 2002. The Arbitrator formed the view that Ms Tighe did not really recall how long she suffered from her pre 2002 injuries, as her memory and her ability to communicate were restricted. Her lack of confidence and hesitation in answering questions demonstrated a failure to recall her medical condition at that time (Reasons at [42]);
(f) after considering Ms Tighe’s oral evidence and the medical evidence, the Arbitrator formed the view that she was a creditable witness who could be accepted in the main as to the issue of injury to the low back and legs. He accepted her evidence as to the severity of the fall in June 2002 and its impact during the following seven years. He did not accept her evidence as to the extent of her prior injuries and how they affected her (Reasons at [43]), and
(g) probable earnings but for the injury were $600.00 per week. Ms Tighe was fit to work for three hours a day, five days a week at a wage between $17.00 and $20.00 per hour in a clerical/management position or as a casual co-ordinator. Her ability to earn was therefore $270.00 per week giving a loss of $330.00 per week. The Arbitrator saw no reason to reduce that amount in the exercise of his discretion.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to determine all issues in dispute, or failing to provide reasons in respect of any such determination;
(b) making a determination not supported by the evidence, and
(c) failing to exercise his discretion under section 40(1) of the 1987 Act.
SUBMISSIONS, DISCUSSION AND FINDINGS
Failure to determine all issues, or provide reasons
A principal part of the Land Council’s defence at the Arbitration was that Ms Tighe had recovered from the effects of the injury. It is submitted that the Arbitrator failed to deal with that issue, or failed to give any or any adequate reasons dealing with that issue. I agree with this submission. Whilst the Arbitrator accepted Ms Tighe’s evidence as to the severity of her fall at work and its impact on her during the following seven years (Reasons at [43]), and he gave reasons for discounting the evidence relied on by the Land Council, he failed to properly consider the strength of Ms Tighe’s medical evidence or deal with the critical issue in the case, namely whether the disc pathology found in the November 2007 scan resulted from the 2002 work injury. That error requires that the matter be re-determined.
Out of deference to the detailed and helpful submissions made by counsel at the hearing of the appeal, I will summarise some of the parties’ main arguments. The Land Council makes the following points in support of its submission that the Arbitrator’s decision should be revoked and an award entered in its favour:
(a) there is no record of Ms Tighe attending at Tamworth Base Hospital on the evening of 21 June 2002 and she did not attend on Dr Strong in relation to her back until 8 August 2002 (six weeks after the injury) though she saw him on 3 August 2002 for an unrelated matter and did not mention her back;
(b) the delay in seeking medical assistance reflects the lack of severity of symptoms as a consequence of the injury;
(c) Dr Glenn took no history of Ms Tighe’s extensive back problems before June 2002 and the weight to be attached to his opinion is therefore diminished;
(d) Dr Glenn stated that there had been some improvement in Ms Tighe’s condition and he believed that she would be fit to return to part-time light duties within two to three weeks with the hope of returning to full-time employment over a period of six to eight weeks. This suggests that the injury was not serious. He did not suggest that Ms Tighe had injured a disc, but said that it was not possible to rule it out. Dr Creer had exactly the same suspicion in 1998;
(e) Dr Strong felt that Ms Tighe’s condition should have resolved and Dr Bohlsen certified her fit in February 2004;
(f) the evidence from the Queensland doctors does not assist Ms Tighe on the issue of causation;
(g) the reports from Drs Lam and Shepherd, dated 2007 and 2009 respectively, do not refer to the alleged injury in 2002 and provide no opinion on the question of causation;
(h) there is no medical evidence to link Ms Tighe’s symptoms in 2007 with the 2002 injury. The only evidence that addresses this question is from Dr Shatwell who concluded that it was unlikely that the work injury resulted in anything more than a temporary soft tissue injury. This evidence is consistent with the opinions from Drs Strong and Bohlsen;
(i) whilst there was no direct evidence of Ms Tighe injuring her back in 2007, the police records suggest that she was involved in an affray on 10 February 2007 and that she, and other victims in the incident, attended at the Moree Police Station that afternoon “nursing obvious injuries”;
(j) Dr Strong’s notes establish that Ms Tighe experienced significant back symptoms before her 2002 injury, and
(k) the Arbitrator failed to deal with Ms Tighe’s allegation that her low back condition caused symptoms as a result of an altered gait.
It is submitted on behalf of Ms Tighe that:
(a) the Land Council did not dispute that Ms Tighe injured her lower back in the fall at work in June 2002;
(b) the Arbitrator found Ms Tighe to be a credible witness;
(c) Dr Glenn described Ms Tighe as “a conscientious, straight forward woman who has a significant back problem”;
(d) notwithstanding experiencing back pain prior to 2002, Ms Tighe’s evidence is that she was very active prior to her fall and enjoyed recreational sporting activities and activities with her grandchildren;
(e) Ms Tighe’s evidence at the arbitration was of continuing pain since the 2002 fall;
(f) her account to Dr Shatwell was that she had not improved with the treatment she received subsequent to her injury. That treatment included physiotherapy;
(g) it was never put to Ms Tighe in cross-examination that she was free from back pain at some stage between 2004 and 2007;
(h) the admission notes from the Royal Brisbane and Women’s Hospital note that Ms Tighe had had back pain from the day on which she “did” her back when she slipped and landed on her back;
(i) as very significant disc pathology was accepted as the reason for Ms Tighe’s low back pain and sciatica in October 2007, and as Dr Glenn regarded Ms Tighe’s presentation as being consistent with a significant disc injury in October 2002, the evidence compels the conclusion that Ms Tighe sustained, or at least severely aggravated, a lumbar disc lesion when she fell on her buttocks at work in 2002;
(j) Dr Shatwell wrongly proceeded on the basis that the incident on 21 June 2002 was a “minor fall”;
(k) Ms Tighe was accepted as a witness of truth. There is a cogent explanation for her pain, namely radiologically established pathology in the lumbar spine, and
(l) in these circumstances, the Commission would conclude, as a matter of common sense, that the disc protrusion revealed in the November 2007 scans resulted from the 2002 work injury.
The Land Council makes a number of important points. It is true that there is no evidence that Ms Tighe attended at Tamworth Base Hospital on the evening of 21 June 2002 and that she did not complain of her back when she saw Dr Strong on 3 August 2002. Ms Tighe’s explanation for not complaining of her back pain on 3 August 2002 is that all they (the doctors) wanted to give her was needles and she hates needles (T22.40-43). That seems an odd explanation in light of the fact that there is no mention of Ms Tighe being given needles for her pre-2002 back pain.
The delay in reporting the work injury to Dr Strong is an important matter that is not adequately explained by Ms Tighe’s evidence, which is to the effect that she was in excruciating pain from the time of the fall until she saw Dr Strong (T22.36). If she had been in excruciating pain, it does not follow that she would have refrained from mentioning her back symptoms to Dr Strong until 8 August 2002. Further, according to Dr Strong’s notes, the complaint on 8 August 2002 was at or about the time that Ms Tighe had been “stood down” from her job. She was not stood down because of her back but because of allegations of misconduct. I agree with the Land Council that the delay in mentioning back pain to Dr Strong strongly suggests that Ms Tighe’s symptoms between the fall on 21 June 2002 and complaining of her back to Dr Strong on 8 August 2002 were not as severe as she now claims, but that does not necessarily determine the nature and extent of the injury.
The fact that Dr Glenn did not have a history of the pre-2002 back symptoms is not determinative. Dr Strong’s notes, which make no mention of back symptoms from February 2001 until August 2002, tend to confirm Ms Tighe’s evidence that her earlier back symptoms were only short term. Though Mr Perry also argued that Ms Tighe’s prior back symptoms had resolved because she played touch football prior to the June 2002 fall, I find that argument unconvincing in the light of her very significant knee disability in 1998 and 1999. In addition, her evidence does not disclose when she played touch football. Of more significance is her evidence that she regularly drove long distances in the period before her fall and had no difficulty in doing so. On balance, it is reasonable to conclude that she did not have disabling back symptoms in the months leading up to her June 2002 fall and Dr Glenn’s failure to record a history of the prior back symptoms is not critical.
Dr Strong’s opinion that Ms Tighe’s back injury “should have resolved” is also not determinative. Her evidence, supported by the clinical notes from 2002 to early 2005, suggests that it did not. Having seen and heard Ms Tighe give evidence, the Arbitrator accepted her evidence that her back symptoms from the June 2002 fall did not resolve. That conclusion is not glaringly improbable or contrary to the compelling inferences (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). It does not, however, determine the critical issue in dispute, namely whether the undoubted pathology in Ms Tighe’s back has resulted from the June 2002 injury. That causation issue is complicated by the lack of investigations in 2002 and that fact that Ms Tighe had several further falls in 2002 and 2003, and the lack of evidence dealing with the period from 2005 to 2007.
Similarly, Dr Glenn’s evidence that Ms Tighe would “probably” be fit to return to part-time light duties within two or three weeks with the “hope” of returning to her full-time employment over six to eight weeks is inconclusive, especially in circumstances where Dr Glenn could not exclude the “possibility of a significant disc injury.” Dr Glenn’s optimism did not become a reality. Whether that was because of the effect of the June 2002 fall or because of other factors is not possible to determine on the current state of the evidence.
Though Dr Bohlsen certified Ms Tighe fit for work on 22 February 2004 I place no weight on that certification as it was plainly based on what Dr Sekel told Dr Bohlsen over the phone (see [68] above), not on Dr Bohlsen’s own findings on examination. Ms Tighe firmly denied that she agreed she would be deemed fit to return to her pre-injury work at that time (T13.11-13). In contacting Dr Bohlsen as he did, and verballing Ms Tighe, Dr Sekel went well beyond the bounds of an independent medical examiner. Such conduct should not have occurred and should not occur again.
When considering the reasons why continuing liability was disputed, it is relevant to note that CGU’s section 74 notice did not rely on Dr Sekel’s conclusion or diagnosis, but instead relied on the history he allegedly took from Ms Tighe to the effect that her back pain had completely resolved by November or December 2002. Such a recovery is inconsistent with Ms Tighe’s evidence, Dr Glenn’s examination on 29 October 2002, and Dr Li’s medical certificates of 9 October 2002, 26 November 2002 and 6 December 2002. Further, such a proposition was never put to Ms Tighe in cross-examination.
It follows that, though I do not make any formal finding to this effect, Ms Tighe has a strong argument that her back symptoms as a result of her work fall continued beyond the date when compensation payments ceased in February 2004. However, the greater difficulty in determining this case arises when one turns to the evidence of the developments in 2007 and whether the disc pathology revealed in November 2007 has resulted from the June 2002 fall.
I agree that the evidence from the Queensland doctors does not assist Ms Tighe on the issue of causation. The reference in the hospital notes that Ms Tighe “did [her] back [a] few years ago after slip → landed on back” does not determine the cause of the significant disc prolapse found in the November 2007 scans. Nor does it explain the significant increase in her symptoms in the second half of 2007. I also agree with the Land Council’s submission that the reports from Drs Lam and Shepherd offer no opinion on this critical issue. That is hardly surprising, they were not asked the relevant questions.
Notwithstanding the lack of direct evidence linking Ms Tighe’s pathology with the June 2002 fall, Mr Perry urges me to infer, based on commonsense, that the pathology revealed in the November 2007 scans has resulted from the work fall in June 2002. To draw such a conclusion I must be satisfied, on the balance of probabilities, that “the circumstances raise the more probable inference in favour of what is alleged” (Ipp JA in Flounders v Millar [2007] NSWCA 238 at [35]). Mr Perry relies on the evidence that the fall in June 2002 was a significant one from which Ms Tighe never recovered and Dr Glenn’s evidence that he could not exclude the possibility of a significant disc injury, coupled with the evidence in 2007 of significant disc pathology, as compelling the conclusion that Ms Tighe sustained or at least aggravated a lumbar disc lesion when she fell in June 2002.
Against this is the evidence from Dr Shatwell that the chronic low back pain Ms Tighe described is probably the result of constitutional degenerative change in the lumbar spine and unrelated to the fall in June 2002. He considered that the delay in seeing Dr Strong probably indicated that Ms Tighe’s lumbar pain was not particularly severe. He also considered that, as the disc prolapse was only revealed on the November 2007 scan and not the March 2007 scan, it was not the result of the June 2002 injury. Dr Shepherd’s hand written report suggests there is a reasonable chance that the initial scans missed a significant lesion “in 04”. There is no evidence that any scans were performed in 2004 and I assume that Dr Shepherd was referring to the earlier 2007 scans. Nevertheless, the Land Council’s submission remains valid, Dr Shepherd did not comment on the connection between the disc prolapse and the work injury.
A further relevant issue is that, though Ms Tighe attended at the Moree Emergency on many occasions between late 2004 and 2008, there are only two references in the relevant notes to back symptoms, one in July 2007 and one in October 2007. Ms Tighe’s evidence does not adequately deal with this period or explain her symptoms or condition.
Where possible, a Presidential member will usually re-determine all issues on review and that was my intention at the start of the appeal hearing in this matter. However, after careful consideration of the issues in dispute, the history of the matter as it has been conducted in the Commission, and the state of the evidence before me, it is neither procedurally fair nor appropriate that I reach a concluded view on the issues now in dispute. There are two main reasons for reaching this view.
First, important issues of credit arise and, having seen and heard Ms Tighe give evidence, the Arbitrator formed a favourable view of her credit. Though such a finding is not immune from challenge on appeal (Fox v Percy), and the finding certainly assists Ms Tighe on the question of whether her symptoms continued beyond February 2004, the Arbitrator did not determine whether the disc lesion found in 2007 resulted from the June 2002 injury. That question requires a careful analysis of the medical evidence, something the Arbitrator did not do.
Second, because of the effect of clause 43 of the Regulation, Ms Tighe’s medical case is substantially diminished compared to the evidence in her favour at the arbitration. It may well be that, had she been aware that she would not be permitted to rely on all of the forensic medical reports tendered on her behalf at the arbitration, she may have sought further evidence from one or more of her treating doctors, and/or a supplementary report from Dr Glenn clarifying his opinion on pathology and causation in the light of the later investigations, and additional evidence on her fitness for work. Having not done that Ms Tighe is at a significant disadvantage.
I have therefore determined that the appropriate course is that the matter be remitted to a different Arbitrator for re-determination of the outstanding issues. Ms Wood strongly opposed this course and argued that Ms Tighe had every opportunity before the arbitration to obtain evidence from her treating doctors and, at the hearing of the appeal, Ms Tighe elected to rely on Dr Glenn’s report rather than the later reports from Dr Mahony, and she should be stuck with that choice. I do not accept these submissions. Had Ms Tighe appreciated that she would not be permitted to rely on all of the forensic medical reports tendered on her behalf she may well have obtained further evidence from her treating doctors, or even elected to discontinue the current proceedings. Remitting the matter for re-determination before a different Arbitrator will allow both parties to tender additional relevant evidence (within the limits of the 2003 Regulation) and to present such further arguments as may be appropriate in the light of that evidence.
OTHER MATTERS
In view of my decision, it is not necessary that I deal in any detail with the other issues raised in the appeal. However, the Land Council’s challenge that the Arbitrator failed to exercise his discretion under section 40(1) of the 1987 Act fails to acknowledge that, apart from the period between 17 January and 27 February 2005 when Ms Tighe was in gaol, neither party made any submissions about the exercise of the discretion. Nevertheless, there are a number of discretionary factors that the Arbitrator should have considered but did not. Those matters will no doubt be considered at the next arbitration.
CONCLUSION
Having conducted a review on the merits, I have determined that the Arbitrator erred in failing to properly determine all issues in dispute and that his determination, so far as it relates to the nature and extent of Ms Tighe’s back injury and whether the effect of that injury is continuing, must be revoked and re-determined. However, because of the history of the matter and the state of the evidence before me on review, I am unable to conduct that re-determination and the matter will be remitted to another Arbitrator for that purpose. The essential issue to be re-determined is whether the effect of Ms Tighe’s back injury is continuing and whether her disc prolapse has resulted from her June 2002 work injury. There is now no issue that Ms Tighe did not injure her neck, right upper extremity (shoulder), right wrist, or left upper extremity and Mr Perry conceded on appeal that Ms Tighe does not press a claim that she suffers symptoms in her right knee as a result of an altered gait as a result of her back injury. The Application has been amended to delete the claim for lump sum compensation.
DECISION
The Arbitrator’s determination of 9 June 2009, so far as it relates to the applicant worker’s back injury and its effect, is revoked and the matter is remitted to another Arbitrator for re-determination.
COSTS
Each party is to pay her or its own costs of the appeal. Costs of the first arbitration are to follow the event of the second arbitration.
Bill Roche
Deputy President
24 November 2009
I, TUYET WALLIS, 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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