Target Australia Pty Ltd v Lewington
[2009] NSWWCCPD 23
•10 March 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Target Australia Pty Ltd v Lewington [2009] NSWWCCPD 23 | ||||
| APPELLANT: | Target Australia Pty Ltd | ||||
| RESPONDENT: | Heather Lesley Lewington | ||||
| INSURER: | Self insured | ||||
| FILE NUMBER: | A1-007061/08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 November 2008 | ||||
| DATE OF APPEAL DECISION: | 10 March 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 9A of the Workers Compensation Act 1987; substantial contributing factor. | ||||
| PRESIDENTIAL MEMBER: | His Hon. Judge Keating, President | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | Evergham Solomons | ||||
| ORDERS MADE ON APPEAL: | 1. For the reasons given in this decision, the Arbitrator’s determination made on 11 November 2008 is confirmed. 2. The Appellant pay the Respondent’s costs of the appeal. | ||||
INTRODUCTION
The issue in this case is whether Ms Lewington’s employment was a substantial contributing factor to the injury to her left knee. The injury occurred when Ms Lewington walked up a flight of stairs at work and heard her left knee click and felt pain in her knee.
The Arbitrator found in Ms Lewington’s favour, awarding her compensation payments and payment of medical expenses on the basis that she had suffered an injury and that her employment was a substantial contributing factor to the injury.
Her employer appeals that decision on the basis that the Arbitrator misapplied section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
BACKGROUND TO THE APPEAL
On 8 December 2008 Target Australia Pty Ltd (‘the Appellant/Target’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 November 2008.
Target is a member of the Coles Group and Coles Group Limited–Injury Service (‘Coles’) holds a self-insurer licence for workers compensation.
The Respondent to the Appeal is Ms Heather Lewington (‘the Respondent/Worker’).
Ms Lewington is a 47-year-old register operator. She worked at Target at Tamworth 20 hours per week and had been employed at Target for approximately four years prior to the alleged work injury.
On 22 February 2008, Ms Lewington had completed her shift and was walking up a flight of stairs between the first and second floor of the Target store in order to retrieve her personal belongings from her locker in the staff room. About half way up the flight of stairs her left knee clicked and she immediately experienced pain. She continued up the stairs, collected her bag and went home.
Ms Lewington sought medical treatment and underwent radiological investigations, which demonstrated a medial meniscal tear in the left knee. Her treating doctor has recommended that she undergo arthroscopic surgery.
Coles, on behalf of Target, refused to accept provisional liability by letter dated 27 February 2008. Ms Lewington ultimately received weekly compensation benefits for the period from the date of injury to 24 March 2008 under an interim payment direction dated 22 April 2008.
By letter dated 25 March 2008, Coles served a section 74 notice and denied liability on the basis that injury did not arise out of her employment and/or her employment was not a substantial contributing factor to the injury.
On 4 September 2008, Ms Lewington filed an Application to Resolve a Dispute in the Commission. She claimed weekly compensation payments at various rates from 24 March 2008 to date and continuing and payment of medical, radiological and physiotherapy expenses totalling $1,208.05 as a result of the injury to her left knee on 22 February 2008.
The parties were unable to settle the claim and the matter proceeded to an arbitration hearing on 27 October 2008 in Tamworth. Both parties were legally represented. Neither party called oral evidence but both parties made oral submissions. The Arbitrator reserved his decision and issued a Certificate of Determination and written statement of reasons (‘Reasons’) on 11 November 2008. It is from this decision that Target now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 November 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1.That the Respondent pay the Applicant weekly compensation under the Workers Compensation Act, 1987 as follows:-
(a)From 25 March, 2008 to 30 April, 2008 at the rate of $129.26 per week pursuant to Section 40.
(b)From 1 May, 2008 to 3 June, 2008 at the rate of $64.63 per week pursuant to Section 40.
(c)From 4 June, 2008 to 4 October, 2008 at the rate of $323.15 per week pursuant to Section 38.
(d)From 5 October, 2008 to 4 December, 2008 at the rate of $329.63 per week pursuant to Section 38.
(e)The Applicant is to be paid at the Statutory Rate for a single person for a further 26 weeks from 5 December, 2008 up to 4 June, 2009 pursuant to Section 38 of the Act.
2.That the Respondent pay the Applicant’s expenses under Section 60 of the Workers Compensation Act 1987 on production of Tax Invoices and/or receipts.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator erred in relation to section 9A of the 1987 Act:
(1) in finding that the Appellant had not tendered any evidence on the issues arising under section 9A of the 1987 Act;
(2) in finding that the Appellant was required to provide evidence that Ms Lewington “…would be required to walk up to 40 steps in her normal daily life…” in order to satisfy the requirements of section 9A (2)(d);
(3) in finding that the Appellant was required to provide evidence that the Worker had “suffered symptoms in her left knee prior to her accident…” to satisfy the evidentiary requirements of section 9A(2)(e);
(4) in dismissing Dr Blue’s evidence because it was based on a false assumption “…that work is not a substantial contributing factor to her present medical condition…”;
(5) in according undue weight to Dr Hopcroft’s evidence, and
(6) in exercising his discretion and finding there was the necessary causal relationship between the Worker’s duties and the injuries sufficient to satisfy the requirements of section 9A.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 8 December 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The monetary thresholds in section 352(2)(a) and (b) of the 1998 Act are met.
The decision finally determined the matters in dispute being the primary liability issues of injury under section 4 and substantial contributing factor under section 9A and made an award for the Worker in respect the claim for weekly compensation payments and medical expenses. The decision is not an interlocutory decision or order, as referred to in section 352(8) of the 1998 Act.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks leave to adduce fresh and/or additional evidence.
EVIDENCE
Ms Lewington relied on a signed statement dated 2 April 2008. She described the incident on 22 February 2008 in paragraph 3 as follows:
“On 22 February 2008 I was walking up stairs at work when I felt my left knee click. I felt a sharp shooting pain going through the middle of my left knee. I finished walking up the stairs and got my handbag and went home.”
Ms Lewington stated later that afternoon her knee started to swell and she had difficulty walking. She attended the Tamworth base hospital on 23 February 2008 and was advised to attend her general practitioner. She reported the injury to work that day. She attended her GP on 26 February 2008 who provided her with a WorkCover certificate.
At the time of preparing the statement, Ms Lewington had not received any compensation payments or payment of medical expenses as a result of the injury.
In a further signed statement dated 6 June 2008, Ms Lewington confirmed that she had been paid weekly compensation benefits up to 24 March 2008, and sick leave and annual leave from 24 March 2008 to 30 April 2008.
On 1 May 2008, Ms Lewington returned to work on restricted duties, which involved four hours per day telephone and paperwork. On 2 June 2008, she was transferred to register work and performed four hours per day register work until 4 June 2008, when she was advised that the Appellant had no further suitable duties available. She has not worked since 4 June 2008, and remains certified fit for suitable duties. She continued to complain of knee pain.
Ms Lewington prepared a further signed statement dated 20 August 2008. She confirmed that she had not worked since 4 June 2008. She had been back to see her manager on a number of occasions since but had been advised that Target would not provide any work for her until she was fit for her pre-injury duties and there was no work Target could provide her.
In addition to seeking work at Target, Ms Lewington also applied for work at Franklins, Westfund, Greater Building Society and Tamworth Base Hospital, and had been looking for work in the newspaper.
Ms Lewington confirmed that there are three floors in the Target store. The ground floor consists of the retail shopping area, the first floor is accessed by a flight of 29 stairs or a lift and is the storage and office area. The second floor is accessed by a flight of 12 steps, which are “a lot steeper and higher” (at [6] of statement dated 20 August 2008). The staff room/locker room were situated on the second floor. Ms Lewington’s statement is silent as to whether there is also elevator access to the second floor.
When Ms Lewington was injured, she was about half way up the stairs between the first and second floor.
Ms Lewington confirmed that she has only two steps at the front of her house but rarely uses them because she enters her house by the rear door, which is accessed by a ramp.
An incident report, which is unsigned, but refers to Ms Penny Scanlon, business manager, confirms that Ms Lewington reported the injury to Ms Scanlon on 23 February 2008 and was certified unfit for work from 23 February 2008 to 29 February 2008.
On 5 March 2008, Ms Lewington completed a claim form, in which she described the circumstances of the injury as follows:
“Walking up stairs (ascending stairs) felt a click and a sharp stinging pain in [my] left knee, continued to collect bag from locker in staff room. Went home later that night my knee had swollen to the point where I could not bend knee or walk without aids. Had pain all afternoon and night. Next day went to hospital early Saturday morning saw a Dr [doctor] he put me on pain tablets could not x ray knee because of swelling. Knee bandaged [sic] was placed on knee, told to see my Dr.”
Dr Peters, general practitioner, provided a number of WorkCover certificates, the first dated 26 February 2008. In each certificate the doctor recorded the injury as:
“Twisted L knee, ascending stairs”
In a certificate dated 31 March 2008, the doctor certified Ms Lewington fit for four hours per day, three days per week of office duties and no register work with a lifting restriction of 5kg walking up to ten minutes and standing less than five minutes.
In a certificate dated 30 April 2008, the doctor certified Ms Lewington fit for four hours, four days per week. He increased the walking restriction to 20 minutes and the standing restriction to 20 minutes, maintaining the other restrictions as per the previous certificate.
On 30 May 2008, the doctor certified her fit for five hours per day, four days per week with intermittent standing and sitting and fit for some register work, if a stool was provided.
Dr Peters maintained these restrictions in his certificates dated 27 June 2008 and 31 July 2008 for the period up to 12 September 2008.
In a certificate dated 12 September 2008, Dr Peters lifted the walking and standing restriction to 30 minutes and again certified Ms Lewington fit for 20 hours per week at five hours per day. He certified that she required a stool for registry work.
Dr Peters referred Ms Lewington to Dr Woods on 31 July 2008. The referral report noted that she had suffered an injury to her left knee, ascending stairs at work on 22 February 2008. She had a medial meniscal injury to the left knee and required an arthroscopy. The diagnosis was confirmed on an MRI.
Dr Peters prepared a report at the request of Ms Lewington’s solicitor dated 29 August 2008. The doctor described the injury as follows (page 1):
“On 22/02/08 at approximately 1:10pm she went to bundy off and then walked up interior stairs to her locker. As she did she felt a click in her left knee and experienced pain. She was able to walk down the stairs and continue home.”
Dr Peters noted x-rays showed minimal osteoarthritic changes in all compartments of the knee joint. He diagnosed a left medical meniscal tear. This diagnosis was confirmed on MRI. He confirmed that Ms Lewington required an arthroscopy.
The doctor believed that Ms Lewington’s prognosis was guarded and that she would develop arthritis in her knee eventually. He also noted that Ms Lewington had suffered a right ankle injury a number of years ago but that injury was in no way related to the injury to her left knee. The doctor concluded:
“The injury to her left knee sustained on 22/02/08 was a substantial contributing factor to her current knee condition.”
Dr Peters prepared a report dated 4 September 2008, addressed to the attention of Rodney Hazell, Store manager, Target Tamworth, in response to a letter seeking information in relation to Ms Lewington’s injury. Dr Peters confirmed that Ms Lewington had sustained a tear of the medial meniscus of the left knee. The tear had created a small effusion and the MRI scan also disclosed the presence of chondromalacia of the medial femoral condyle.
Dr Peters considered that her prognosis was guarded and she required an arthroscopy to remove or trim the torn meniscus. He anticipated that once her knee “settled” she would be able to return to her pre-injury duties. He also prognosed that she would develop osteoarthritis earlier than otherwise expected. He confirmed that she was not fit for her pre injury duties and was fit for light duties of five hours per day, four days per week. She had a lifting restriction, could not use stairs or squat and could undertake intermittent walking and standing. He considered her fit for registry work of four hours provided she could use a stool and intermittently sit down.
Dr Hopcroft, general surgeon, examined Ms Lewington on 14 May 2008 and prepared a report of the same date, addressed to her solicitors. Dr Hopcroft obtained a consistent history of Ms Lewington experiencing a loud clicking and pain in her left knee whilst ascending a flight of stairs at work. Dr Hopcroft diagnosed:
“a major internal derangement of the left knee, almost certainly affecting the medial meniscus of her left knee joint and dating from the work-related activities of 22 February 2008.”
He provided Ms Lewington with a referral for an MRI scan. Whilst he believed she was currently unfit for her pre-injury duties, he opined that her prognosis was good and she was motivated to have the problem resolved so that she could return to her pre-injury duties.
Dr Hopcroft stated:
“I believe her employment has been a substantial contributing factor to her current left knee condition.”
Dr Smith in a report dated 26 May 2008, addressed to Dr Hopcroft reported on the MRI scan findings. She noted that the MRI confirmed the clinical diagnosis of a medial meniscal tear in the left knee. It also showed chonromalacia of the medial femoral condyle, prepatella fluid and a small postero-medial synovial cyst.
Dr Hopcroft reported on the MRI findings in a further report addressed to Ms Lewington’s solicitors dated 5 June 2008.
He noted that she required arthroscopic examination and would probably require a partial menisectomy. Such a procedure would leave her with some significant long-term permanent impairment. Dr Hopcroft recommended Ms Lewington be referred to an orthopaedic surgeon, specialising on lower limb injuries.
In both his reports, Dr Hopcroft was of the opinion that Dr Blue (see below), who examined Ms Lewington at the request of Coles, had made a clinical oversight.
Dr Blue, orthopaedic surgeon, examined Ms Lewington and prepared a report dated 14 March 2008. He noted that he had previously examined the worker on several occasions in relation to her earlier ankle injury, he noted that the simple inversion ankle injury took an extremely long time to resolve. He had also formed the view that Ms Lewington had a low pain threshold.
He obtained a history that the right ankle injury was no longer a problem. He noted a consistent history of her left knee clicking and pain developing in the knee whilst she was ascending stairs at work on 22 February 2008.
Dr Blue believed Ms Lewington might have experienced a minor subluxation of her left patella. He believed she demonstrated “either gross apprehension or definite over presentation of her symptoms” (page 4). He did not believe that any further investigations were required and that she was fit to return to work utilising a knee splint. He commented that in light of her previous prolonged convalescence from the ankle injury that she would have a similarly prolonged convalescence “based on apprehension rather than true physical abnormality”.
Dr Blue prepared a further report dated 15 July 2008. He reviewed Dr Hopcroft’s reports and the MRI report. He stated that the history of developing anterior knee pain did not suggest possible meniscal damage. The MRI findings did not exclude the possibility of a temporary subluxation of the patella, as he had previously suggested.
Dr Blue confirmed that, contrary to Dr Hopcroft’s suggestion that he (Dr Blue) had not performed ‘McMurray’ testing, that he had in fact performed the test but it would not have been positive in the presence of an undisplaced meniscal tear.
Dr Blue did not believe that arthroscopic surgery would assist and he predicted that if surgery was performed Ms Lewington would have an extremely prolonged convalescence and increased morbidity. Dr Blue answered in the affirmative to the question of whether he remained of the opinion that her work was not a substantial contributing factor to her condition. He concluded that the description of the tear in the MRI report suggested to him that it was degenerative in nature and related to Ms Lewington’s excessive weight.
SUBMISSIONS
Appellant’s Submissions
Contrary to the Arbitrator’s finding that the Appellant had not tendered evidence on the section 9A(2)(d) issue, the Appellant had served sufficient evidence and relied on the section 74 notice dated 25 March 2008 and Dr Blue’s report dated 14 March 2008.
The Arbitrator misconceived the standard of evidence required under section 9A(2)(d). There is no statutory requirement or case law to establish the “exact conditions encountered in employment [sic - normal daily life] outside that employment” in order to establish the standard. The Appellant relied on Supair Pty Limited v Sweeney [2000] NSWCA 319 (‘Supair’).
The Arbitrator failed to take into account the evidence in the medical reports of the prior right ankle injury, evidence of osteoarthritis in her left knee, her weight and Dr Blue’s opinion that the meniscal tear evident on MRI was degenerative in nature. The Arbitrator based his erroneous view on the assumption that the Appellant had to adduce evidence of pre-existing symptoms in Ms Lewington’s left knee before he was required to consider such evidence as relevant to section 9A(2)(e).
The Arbitrator erroneously referred to Dr Hopcroft as the treating specialist when he had only examined the Worker once at the request of her solicitor.
Dr Hopcroft took a history that was substantially different from the other histories of the injurious event. The Arbitrator failed to explain why he preferred Dr Hopcroft’s evidence other than to express the view that he was the treating specialist.
There was no evidence that the Worker had climbed up the first flight of 29 stairs, prior to ascending the second flight of 12 stairs, when she experienced the onset of knee pain. The Arbitrator assumed that it was a requirement of her employment to climb “40 steps” in order to collect her possessions before leaving the work premises.
The Appellant submits that if one accepts the onset of symptoms, the Worker has only demonstrated a temporal relationship between the injury and employment. The Appellant relies on Mercer v ANZ Banking Group (2000) 48 NSWLR 740 (‘Mercer’) and Le Brocq v WorkCover Authority of NSW [2008] NSWCA 125 (‘Le Brocq’).
Section 9A is not satisfied merely because the injury arose out of or in the course of employment. The Appellant relies on Stanton-Cook v TAFE Commission (NSW)(1999) 17 NSWCCR 632, Neilson J at [44].
Respondent’s Submissions
Ms Lewington submits that the Appellant (incorrectly referred to as the Respondent) had not tendered any evidence on the likelihood of the knee “suffering any insult from ‘simply walking up the stairs at home.’” ([2.7.1] of the Notice of Opposition).
Dr Blue made no reference to the probability of a similar injury occurring, the time frame in which it would have occurred or the nature of the type of injury that would have occurred anywhere and at about the same time, even if she did not have to walk up stairs at work.
In relation to the evidentiary requirement to satisfy section 9A(2)(e), Supair established that the Employer bears the onus to prove “that on balance all of the factors that substantially influenced the casual outcome here were other than work factors. This case was rejected”. The Arbitrator’s findings in relation to section 9A were open to him on the evidence.
Although the Arbitrator did not mention the pre-existing other conditions “he had them in mind because he did think that the work-related factor was if not ‘the’ then at least ‘a’ substantial contributing factor.”
The Arbitrator’s reference to Carsten v Holiloy [2001] NSWCC 87 (11 May 2001) was a relevant measuring standard in forming his impressions and in his understanding of all of the evidence in the current case.
The Arbitrator dealt with the reason for dismissing Dr Blue’s evidence at [15] of his Reasons before concluding at [20] of his Reasons.
Ms Lewington agrees with the submission that the Arbitrator made an error in referring to Dr Hopcroft as the treating doctor, however he would not have made a different decision had he been aware of the correct status of Dr Hopcroft.
In relation to the Arbitrator’s exercise of his discretion and his finding that there was the necessary causal relationship between the Worker’s duties and the injuries sufficient to satisfy the requirements of section 9, the Arbitrator’s approach was consistent with the authorities relied upon by the Appellant. Ms Lewington submits at [2.7], in response to ground 6(1)):
“The causal link between expected activity ancillary to work and injury at this location, on this day, when she would not otherwise have been walking up steep steps, is clear and it is properly found. It is not remote or tenuous. It is not outweighed by other external or other latent factors.”
Ms Lewington submits that the appeal should be dismissed.
LEGISLATION AND AUTHORITIES
Section 9A of the 1987 Act is in the following terms:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In the second reading speech, Legislative Council on 26 November 1996, page 6501-10, the Attorney General, said with respect to the introduction of section 9A:
“Turning to the details of this package, the bill will limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury or disease. This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work. The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself. Questions relevant to whether the employment was a substantial contributing factor in a worker’s injury can include the time and place of the injury, the nature and duration of the work, whether it was merely a coincidence that the injury occurred at work, and the extent of any non‑employment contributing factors” (emphasis added).
In Nexon Asia Pacific t/as Commander Australia Pty Ltd v Badawi [2008] NSWWCCPD 72 I considered relevant authorities and the principles to be applied in determining section 9A issues. It is perhaps worth restating some of those principles:
“43. Section 9A was considered in Stanton-Cook where Judge Neilson held at paragraph [44]:
‘However, since the enactment of s 9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorised to do in pursuit of his employment contract.’ (emphasis added)
44. Mason P observed in Mercer that there may be more than one substantial contributing factor to an injury and “[t]he word ‘substantial’ qualifies ‘contributing factor’, thereby indicating that it is the strength of the causal linkage that is in question” (see Mercer at [17]).
45. Further, in Mercer at [22] Mason P said:
‘The worker correctly submits that the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of “a substantial contributing factor to an injury” is exegeted in ss (2) and (3) of s 9A.’ (emphasis added).
46. In Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 (‘Dayton’), the Appellant, Mr Dayton sought compensation on the basis that stressful events at work at Coles caused him to develop schizophrenia. The judge at first instance found that the major causes of Mr Dayton’s schizophrenia were biological susceptibility and prolonged use of marijuana. In dismissing Mr Dayton’s appeal, the Court held that findings as to the relative contributing factors to an injury are questions of fact and questions of impression and degree. As noted by Giles JA at [22]:
“...‘substantial’ qualifies ‘contributing factor’, indicating that it is the strength of the causal linkage that is in question: and it is ‘the employment concerned’ which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment’ (emphasis added).”
In the Le Brocq Rein J with whom Tobias JA and Gzell J agreed, considered and applied the approach taken by Mason P in Mercer noting at [24]-[26]:
“24. Section 9A(4) requires that ‘employment concerned’ to be a substantial contributing factor. In Mercer, Mason P noted at [13]-[17] one starts with the question of what if anything the worker was in fact doing in his or her employment that caused or contributed to the injury”, and then considers whether the employment was a contributing factor and, if so, to then consider the strength of the causal linkage between the injury and the contributing factor, to determine whether that factor is a substantial one.
25. Thus there is a need to determine what was the Appellant’s employment and to determine whether the activity or task which led to the injury was an activity or task falling within the tasks required by virtue of the contract of employment or was incidental to those tasks…
26. S 9A(3)(a) makes it clear that the fact that the injury arose out of, or in the course of, or arose both out of and in the course of employment is not of itself sufficient to make the worker’s employment a substantial contributing factor.”
DISCUSSION AND FINDINGS
To determine whether Ms Lewington suffered a compensable injury it was necessary firstly for the Arbitrator to deal with the question of whether on the evidence overall, he was satisfied that an injury had occurred. If he was so satisfied it was necessary that he consider the provisions of section 9A in deciding whether the injury was compensable.
Ms Lewington was injured whilst ascending stairs to access the second floor locker room at the completion of her shift. She was not permitted to have personal belongings such as her handbag, mobile phone, keys etc, with her whilst she performed her duties at the checkout. These items were required to be left in the locker room during the shift. The evidence suggests that there was no lift between the first and second floor of her employer’s premises, thus Ms Lewington was obliged to use the stairs between those floors, and that is where her injury occurred. The stairs were steeper and higher than the stairs from ground level to the first floor. Her employer was well aware that staff were required to access the stairs to the second level at least twice daily at the start and finish of each shift. In those circumstances the use of the stairs was incidental to Ms Lewington’s employment.
The nature of the injury sustained by Ms Lewington was very much in issue between the parties. Dr Hopcroft obtained a history that when walking up the interior stairs to the locker room her left knee clicked loudly and she experienced immediate pain. Dr Blue obtained the same history, that is, whilst walking up the stairs the knee “simply clicked” and she developed pain across the front of the knee.
The worker’s description in her statement of evidence of 22 February 2008, and in her claim form was entirely consistent with the histories given to Dr Hopcroft and Dr Blue.
For reasons that are not explained the medical certificates issued by Ms Lewington’s general practitioner, Dr Peters recorded a twisting injury to the left knee ascending stairs.
As the Arbitrator correctly observed at [15] of his Reasons, Dr Peters’ notation of a twisting injury is the only reference to a twisting injury in an otherwise totally consistent history. The Arbitrator inferred from the evidence that it was likely that Dr Peters had made an assumption that the injury as described to him involved some twisting action while ascending the stairs. The Appellant concedes that is the probable explanation.
The Arbitrator accepted Ms Lewington’s evidence as to the circumstances of the injury. I agree with that conclusion, in fact, I think it was the only reasonable conclusion open to him on the available evidence.
Dr Hopcroft first examined Ms Lewington on 22 February 2008. He formed a preliminary diagnosis that she had suffered a major internal derangement of the knee, almost certainly affecting the medial meniscus of the knee dating from the work related activities of 22 February 2008. He was not confident that plain x-rays would show the pathology and recommended she have an MRI.
On 26 May 2008, Ms Lewington submitted to an MRI, which confirmed the clinical diagnosis of a tear of the medial meniscus. Other findings of the MRI are reported at paragraph 51. Dr Hopcroft provided a further report on 5 June 2008 confirming his view that there was significant pathology affecting Ms Lewington’s medial meniscus cartilage and that she almost certainly had a clinical tear of the posterior horn of that meniscal cartilage. Dr Peters formed the same view when he initially saw Ms Lewington on 26 February 2008. He also confirmed his preliminary diagnosis of a tear of the left medial meniscus after viewing the report of the MRI.
Dr Blue, on the other hand, when he first examined Ms Lewington on 13 March 2008, diagnosed a temporary subluxation of the patella. He was strongly of the view that her employment was not a substantial contributing factor to her condition, commenting that, “the problem would have occurred even if she was simply walking up stairs at home.”
Subsequently, Dr Blue was provided with a copy of the findings of the MRI of 26 May 2008. He conceded that the findings of the MRI were inconsistent with the probability of the problem being temporary subluxation of her patella. However, when asked whether he was still of the opinion that work was not a substantial contributing factor to her condition he maintained his view that employment was not a substantial contributing factor, but for different reasons. He said, “from the description of the tear on the MRI report I would believe that it almost certainly is of a degenerative nature only relating to excessive weight”.
It’s apparent from Dr Blue’s report that he formed a poor impression of Ms Lewington from the outset. He noted that he had reviewed her on several previous occasions regarding an ankle injury, which apparently took an extremely long time to resolve. He formed the impression regarding that injury that Ms Lewington had a low pain threshold and had an unusually lengthy recovery and convalescence from what he described as a simple inversion ankle injury. He opined that the symptoms regarding the knee were due to “either apprehension or perhaps even contrivance”
Neither Dr Hopcroft nor Dr Peters recorded any evidence of exaggeration, nor for that matter anything unusual about Ms Lewington’s presentation.
It is apparent from the Arbitrator’s Reasons, [20]–[24], that he preferred the opinions of Drs Hopcroft and Peters to that of Dr Blue. In expressing that view, however, the Arbitrator described Dr Hopcroft as the treating surgeon. That was clearly an error. Dr Hopcroft was a forensic expert retained by the Ms Lewington’s solicitors. The Arbitrator did not indicate in his reasons whether he placed any added weight on Dr Hopcroft’s opinion due to his misapprehension that he was the treating specialist.
There are a number of reasons in my view why the Arbitrator was correct to prefer the opinions of Drs Hopcroft and Peter to Dr Blue, notwithstanding the Arbitrator’s misunderstanding as to status of Dr Hopcroft as a treating doctor.
Dr Blue approached his assessment of Ms Lewington with a preconceived notion that she had a low pain threshold and took an unusually long time to recover from simple injuries. He formed that impression of her as a result of reviewing her on several occasions in respect of an earlier ankle injury. He did so in the absence of any radiology in respect of the alleged knee injury.
Doctor Hopcroft was critical of Dr Blue’s clinical examination, which he described as ‘cursory’. In particular, he was critical of the absence to any attempt to assess Ms Lewington in a crouch position or to undertake a ‘McMurray’s test’.
A ‘McMurray’s test’ is a clinical test used to evaluate individuals for tears in the meniscus of the knee. Both Drs Hopcroft and Peters undertook a McMurray’s test, with positive results. There is no mention of a ‘McMurray’s test’ in Dr Blue’s first report of 14 March 2008. In his second report dated 15 July 2008, Dr Blue states that he did performed a McMurray’s test but he did not provide details of his findings, other than to state that an undisplaced tear of the meniscus does not result in a positive McMurray’s test.
No reasons are advanced by Dr Blue as to why Ms Lewington’s condition should be regarded as degenerative rather than traumatically induced and, importantly, he fails to explain why the following facts are not suggestive of a meniscal tear occurring as Ms Lewington ascended the stairs at work:
1. her asymptomatic state prior to the incident of 22 February 2008;
2. her consistent reports of hearing a clicking sound in her knee at the time of the alleged injury;
3. the onset of immediate pain in the knee after hearing the clicking sound whilst ascending the stairs;
4. the onset of substantial swelling in the knee within 24 hours of the incident, and
5. immediate pain weight bearing after the incident.
The Appellant submits that the reverse argument applies to Dr Hopcroft, that is, that he failed to adequately explain his conclusion concerning the causal relationship between Ms Lewington’s employment and her injury. I reject that submission. In his first report of 14 May 2008 Dr Hopcroft carefully explained that he believed there was a major internal derangement problem almost certainly affecting the meniscus dating from the incident on the stairs on 22 February 2008. He confirmed that diagnosis after reviewing the results of the MRI of 26 May 2008. His evidence was persuasive in establishing a strong causal link, not merely a temporal one as submitted by the Appellant.
There were other reasons for the Arbitrator to prefer the evidence of Dr Hopcroft and Dr Peters to that of Dr Blue. These include Dr Blue’s initial misdiagnosis of a subluxation of the knee. His pre-conception that Ms Lewington would exaggerate and prolong her symptoms. Either an incomplete clinical examination or at lease an incomplete recording of the examination findings, and his failure to explain why the radiological evidence of a torn meniscus should be accepted as degenerative rather than occurring in the manner alleged. His refusal to accept that arthroscopic repair of the meniscus would be beneficial, suggesting it would lead to “prolonged convalescence and increased morbidity”.
For these reasons the Arbitrator’s error in referring to Dr Hopcroft as a treating doctor is not fatal on appeal. His factual findings were soundly based and did not depend on any added weight, as is often ascribed to a treating doctor, for their acceptance.
The Appellant submits the Arbitrator failed to take into account the evidence of Dr Blue in determining whether the example given in section 9A(2)(d) should apply in this case to defeat Ms Lewington’s claim for compensation. The Appellant relied on the decision in Supair. There is no doubt that the Arbitrator was required to deal with the issue raised by Dr Blue’s evidence, that is, that the injury suffered by Ms Lewington would have happened anyway, irrespective of any employment related activity. I agree that the proposition is supported the Court of Appeal’s judgment in Supair. However there are a number of answers to this submission.
Firstly, the Arbitrator did deal with the section 9A(2)(d) issue. He dealt with it by analysing the medical evidence, (which was the only evidence on the point relied on by the Appellant) which was found to be adverse to the Appellant for the reasons cited above. Secondly, the examples given in section 9A(2) are illustrative but they are not determinative of the section 9A issues (see Supair). Lastly, the lay evidence was adverse to the Appellant. There was nothing in the Worker’s evidence to suggest there were any lifestyle factors, or sporting pursuits, for example, of any relevance. The Worker’s evidence was that she lived with her mother on a level block of land, with only two steps at the front of the house that were infrequently used as her mother used a walking frame and invariably the house was accessed from the rear where there was a ramp. These findings strongly support Dr Hopcroft’s conclusion that employment was a substantial contributing factor to the injury.
The Arbitrator weighed the medical evidence tendered by both parties, as he was required, however, a determination of whether the employment concerned was a substantial contributing factor to the injury for the purpose of section 9A is a question to be decided on the evidence overall, it is not purely a medical question. The Arbitrator makes it plain that that was his approach to the resolution to the issue where he said he considered the totality of the medical and lay evidence in reaching his conclusion (Reasons [20]).
A finding adverse to Ms Lewington on the section 9A(2)(d) issue would involve an acceptance of Dr Blue’s view that the work activity of ascending the stairs was totally irrelevant to the development of Ms Lewington’s symptoms. The Arbitrator rejected that opinion and I agree with his conclusion for the reasons I have given. The evidence of Ms Lewington, Dr Hopcroft and Dr Peters, which the Arbitrator quite properly accepted, was sufficient to support the Arbitrator’s conclusion that Ms Lewington’s employment was a substantial contributing factor to her injury.
To the extent that the Appellant’s Grounds of Appeal have not been specifically addressed in these reasons I make the following observations. As to ground one it is true that the Arbitrator said in reference to section 9A(2)(d) that the Appellant had not tendered any evidence on the issue (see reasons paragraph 19(d)). However, I have treated that statement by the Arbitrator as referring to any evidence, other than Dr Blue’s evidence, which he dealt with comprehensively. The statement was made in the context of the Arbitrator’s consideration of the decision in Supair. The Arbitrator accepted that, consistent with the authority in Supair, as section 9A(2)(d) was raised by the evidence of Dr Blue, that he was obliged to deal with it and he did. Therefore, ground one has not been made out.
In its second ground of appeal the Appellant submits that the Arbitrator erred in finding that the Appellant was required to bring evidence that the Worker would be required to walk up 40 steps in her normal daily life in order to satisfy the evidentiary requirements of section 9A(2)(d). This submission is quite misleading. The Arbitrator did not make a finding in those terms at all. At [19(d)] of his Reasons, the Arbitrator was assessing the evidence as to whether the requirement to walk up 40 steps daily in the course of her work qualified as a substantial contributing factor to the injury. In so doing he weighed the absence of any evidence that Ms Lewington regularly used stairs in a non-employment context with the requirement to do so in employment. This approach was appropriate in the circumstances of this case and does not involve any error on the part of the Arbitrator. It follows that ground two has not been made out.
Ground three of the Appellant’s submissions also suffers from a fundamental misstatement of the Arbitrators findings. At [19(e)] of his Reasons, the Arbitrator found that there was no evidence that Ms Lewington suffered symptoms in her left knee prior to her accident on 22 February 2008. He concluded that Ms Lewington’s state of health prior to the accident had not contributed to her injury. The Appellant has wrongly elevated the Arbitrator’s finding to a submission asserting that the Arbitrator found that it was a requirement that evidence of prior symptoms be brought, before the Worker’s prior state of health will be relevant to a determination on the section 9A issue. That is not what the Arbitrator found. Whilst there was radiological evidence that some degeneration existed in Ms Lewington’s left knee at the time of the injury, the evidence was that her left knee was completely asymptomatic prior to the injury. The submission that the left limb was damaged as a result of favouring the limb due to an earlier injury to the right ankle is pure speculation. The Appellant led no evidence on that issue. The only evidence that pre-existing degeneration in the left knee joint played some part in the injury came from Dr Blue. For the reasons discussed, the Arbitrator rejected Dr Blue’s evidence. I have agreed with that conclusion. It follows therefore ground three has not been made out.
The ultimate question of whether the section 9A test is satisfied is a question of fact and is a matter of impression and degree. Giles JA noted in Dayton at [29]:
“the finding as to relative contributing factors is a finding of fact. As his Honour [Burke, CCJ at first instance] said, it is a question of impression and degree; see also the recognition in Mercer v ANZ Banking Group Ltd that there is ‘a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative (at 748-749)’”
The Arbitrator clearly expressed the relevant principles and in my view correctly applied them. The factual findings made by the Arbitrator were open to him on the evidence and consistent with the passages quoted above. I agree with his conclusions and his reasoning.
Conclusion
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28] I am of the view, for the reasons given in this decision, that the Arbitrator’s conclusions and orders in respect of Ms Lewington’s claim for compensation are correct.
I note that the award of weekly compensation ceases on 4 June 2009. The quantification of Ms Lewington’s rights, if any, to compensation from 5 June 2009, have not yet been determined, and if necessary, may be the subject of a further application.
DECISION
For the reasons given in this decision, the Arbitrator’s determination made on 11 November 2008 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
His Hon. Judge G Keating
President
10 March 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
5
0