Target Constructions Pty Ltd v Dobson
[2007] NSWWCCPD 40
•7 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Target Constructions Pty Ltd v Dobson [2007] NSWWCCPD 40
APPELLANT: Target Constructions Pty Ltd
RESPONDENT: Warren Dobson
INSURER:Gallagher Bassett Services Workers Compensation (NSW)
FILE NUMBER: WCC9285-06
DATE OF ARBITRATOR’S DECISION: 25 September 2006
DATE OF APPEAL DECISION: 7 February 2007
SUBJECT MATTER OF DECISION: Weight of evidence; factual findings; avascular necrosis; application of Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Holman Webb Lawyers
Respondent: Bourne Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 September 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 October 2006 Target Constructions Pty Ltd (‘the Appellant Employer/Target’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 September 2006.
The Respondent to the Appeal is Warren Dobson (‘the Respondent Worker/Mr Dobson’).
Mr Dobson was born on 16 December 1954 and started work with Target as a building supervisor/carpenter in about 1997. In April 2002 he was seen by Dr Sally Preston, consultant rheumatologist, complaining of having developed pain in his joints at the beginning of 2001. His pain was initially in his left shoulder and then in his right shoulder, left elbow, left wrist, ankles, neck and fingers. Dr Preston felt that his symptoms were “suggestive of rheumatoid arthritis” (report 22 April 2002). She noted he had been taking prednisone since November 2001 and, as at April 2002, was taking 20 mgs per day.
On 14 May 2002 he was engaged in his normal duties when he fell down eight stairs injuring his left foot and, it is alleged, other parts of his body including his right hip. Target concedes the injury to the left foot but denies that Mr Dobson sustained any other injury in that fall. After a brief time off work Mr Dobson returned to his normal duties.
In June 2003 he arrived at a building site and was getting out of his car when, as he put weight on his right leg, he felt severe pain in his right hip. Mr Dobson’s right hip symptoms gradually deteriorated until he was diagnosed with avascular necrosis (‘AVN’) in June 2004 and underwent a right hip replacement on 3 February 2005.
In his Application to Resolve a Dispute (‘the Application’) registered in the Commission on 21 June 2006 Mr Dobson alleged two injuries: first, his fall down the stairs in May 2002 and, second, a “fall after getting out of work van” on 6 June 2003. The second injury was not relied on at the Arbitration hearing. He claimed weekly compensation from 26 April 2005 to date and continuing plus lump sum compensation in respect of 15% whole person impairment and $15,000.00 for pain and suffering. The claim for weekly compensation was discontinued.
In its Reply Target raised several issues but its principal argument before the Arbitrator was that Mr Dobson had not suffered any injury to his right hip in the May 2002 fall and that the surgery in February 2005 was unrelated to that fall.
The matter proceeded to an Arbitration hearing before a Commission Arbitrator on 20 September 2006. In an extempore decision the Arbitrator found in favour of Mr Dobson on all issues.
Target seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the compensation claimed is “at issue” on appeal and, therefore, the threshold in section 352(2)(b) is also 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
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that the appeal should not be determined on the papers because it is a matter “of considerable complexity, historically and medically” (Appellant Employer’s submissions paragraph 28). The Respondent Worker submits that he may wish to expand on his submissions upon receipt of the transcript of the proceedings but, subject to that, it “might be possible for the matter to be fairly dealt with ‘on the papers’”.
The transcript was forwarded to the parties on 15 November 2006. Neither party has filed any additional submissions since that time. Prior to receipt of the transcript each party filed comprehensive written submissions dealing with all relevant issues. No oral evidence was taken at the Arbitration hearing. I do not believe the matter is so complex that an oral hearing is required.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 25 September 2006, records the Arbitrator’s findings and orders as follows:
“1.The Applicant suffered injury as result of a fall down stairs on 14/5/02 in the course of his employment.
2.His employment was a substantial contributing factor to that injury.
3.The Applicant suffered various injuries in that fall including a traumatic injury in the vicinity of his right hip which led to the development of avascular necrosis.
4.As a reasonable form of medical treatment with respect to that condition the Applicant underwent hip replacement surgery on 2/2/05.
The orders made are as follows:
1.This matter is referred to an AMS for assessment of permanent impairment of the right lower extremity injured on 14/5/02.
2.I certify that this matter is complex and that is proceeded direct to Arbitration.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
·finding that Mr Dobson injured his right hip in the fall in May 2002;
·finding that the condition of AVN resulted from that fall;
·finding that the hip replacement surgery was reasonably necessary as a result of the fall in May 2002, and
·failing to find that the condition of Mr Dobson’s right hip had been caused by other factors.
SUBMISSIONS
The Appellant Employer submits that:
a) the connection between Mr Dobson’s right hip condition and the May 2002 fall was speculative and the Arbitrator’s conclusion highly improbable;
b) there were other far more logical and persuasive explanations for the need for surgery, none of which were work related;
c) of all the reports tendered there was only one that suggested a causal link between the fall and the condition requiring surgery in 2005;
d) the Arbitrator’s reasoning was “tainted” (Appellant Employer’s submissions paragraph five);
e) no evidence was produced from any of Mr Dobson’s treating doctors;
f) Dr Searle’s evidence noted there was a general acceptance that AVN can be caused by high doses of corticosteroids (Dr Searle’s report 28 June 2005, page five). This was alluded to by Dr Hasn who recommended an MRI scan to “exclude AVN in view of the sudden onset as well as his history of prednisone” (report 21 May 2004);
g) Dr Preston, the treating rheumatologist, was clearly concerned with what she referred to as a high requirement of prednisone which Mr Dobson had been taking for six months prior to seeing her in April 2002;
h) Dr Searle’s exclusion of prednisone as an obvious possible cause of the AVN was specious;
i) Dr Searle was wrong to say that Mr Dobson started prednisone in April 2002 and that he was on relatively small doses;
j) Dr Searle’s history that Mr Dobson had a very sore right hip after the fall in May 2002 is disproved by Mr Dobson’s own account. If that account came from Mr Dobson then he has no credit as the suggestion is denied in other accounts;
k) Dr Searle’s report was, in any event, so seriously flawed as to be of no probative value. Either Mr Dobson lied to Dr Searle or the doctor has a mistaken history;
l) inconsistencies in Mr Dobson’s evidence indicate a lack of credibility;
m) another possible cause of the AVN was Mr Dobson’s consumption of alcohol. He was consuming alcohol at levels his doctors regarded as inadvisable right up to the time of his admission to hospital for his hip replacement operation;
n) Mr Dobson was cautioned by Dr Dwyer, consultant physician, in May 2002 to reduce his consumption of beer from 24 stubbies per week to about one quarter that amount;
o) in January 2005 the pre-admission notes from Central Coast Hospital record that Mr Dobson was consuming 20 to 30 schooners of regular beer per week;
p) the evidence fails to establish a “causal chain” between the injury and the condition of AVN (Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 at 461 and 463), and
q) the award should be revoked and an award entered for the Appellant Employer.
The Respondent Worker submits that:
a) an appeal is not a rehearing and it must be demonstrated that the decision is affected by some legal, factual or discretionary error (Mayne Health Group v Sandford [2002] NSWWCCPD 6 (‘Sandford’));
b) the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator and the Arbitrator’s decision on such matters should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur where the Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18 (‘Edmonds’));
c) AVN involves the death of bone cells due to inadequate supply of blood to the area concerned;
d) Mr Dobson’s case is that he suffered a trauma to his right hip (amongst other areas) when he “tumbled down” a “flight of 8 stairs on carpeted concrete to a mid floor landing” in the course of his employment with Target on 14 May 2002 (see Mr Dobson’s handwritten statement dated 2 March 2006);
e) AVN can be caused by such trauma and the nature of the condition is such that it may take up to two years for the condition to reveal itself by the presence of noticeable symptoms (Dr Searle’s report 28 June 2005, page five);
f) the pain experienced by Mr Dobson in June 2003 when he was getting out of his car was the first occurrence of noticeable symptoms from the condition;
g) the MRI scan on 17 June 2004 confirmed the diagnosis of AVN and showed that the necrosis had commenced at the upper margin of the head of the femur, a typical position for the commencement of the problem after trauma (Dr Searle’s report 28 June 2005, page five);
h) Dr Searle discussed but rejected other possible causes of the condition;
i) the surgery on 3 February 2005 was reasonably necessary medical treatment as a result of the injury sustained on 14 May 2002;
j) when Mr Dobson fell on 14 May 2002 he also fractured his left fifth metatarsal but also sustained abrasions to his knees, one elbow and “soreness all over with most pain coming from my left foot” (Mr Dobson’s statement 2 March 2006). He added that his wife noticed he had grazing down his spine and “right hip area”;
k) later that day he drove home but the pain in his left foot caused him to attend the Accident and Emergency centre at Wyong Hospital where x rays revealed a fracture and a plaster cast was fitted;
l) given Mr Dobson’s pain with his left foot, it was unremarkable that the hospital notes did not record any complaint of right hip pain;
m) it would be extraordinary if a person who had tumbled down eight stairs only injured one bone in one foot;
n) the Appellant Employer’s chronology notes that Mr Dobson saw Dr Preston on 18 July 2002 and that there is no mention in her report of that date of him having a painful hip and, therefore, Mr Dobson has no credit. In response it is submitted that Dr Searle’s history was that Mr Dobson’s right hip was “very sore after the fall though his main worry was his left foot” (Dr Searle 28 June 2005, page one) and that after the fall the right hip was “very sore for a time” (Dr Searle 28 June 2005, page five (emphasis added)). Therefore, the soreness in the right hip was, at that stage, transient and the relevant attendance of Dr Preston was two months after the fall. Further, Mr Dobson was not seeing Dr Preston for treatment of the symptoms arising from the fall;
o) not every doctor or hospital makes a complete list of all current and past traumas or symptoms and to suggest that the absence of a record means that the worker is lying is unrealistic;
p) dealing with the consumption of prednisone, Dr Searle states at page five of his report, “it is generally accepted that AVN can be caused by high doses of corticosteroids, or treatment over a long period of time”. The doctor records that he contacted Dr Preston and was told, “she believed the prednisone the patient took would be considered ‘a small dose’”. Relying on this Dr Searle concluded that Mr Dobson’s consumption of prednisone was not “high” and was not a probable cause of the AVN;
q) whilst Dr Preston referred to Mr Dobson having “high requirements of prednisone” in her report of 22 April 2002 that does not mean that his overall dosage was high. Mr Dobson’s consumption of prednisone decreased between April 2002 and March 2004. In concluding whether the overall dosage can be categorised as ‘high’ or ‘low’ regard must be had to the level of the dosage and the period over which it is taken;
r) Dr Searle was in error in assuming the Mr Dobson started on prednisone in April 2002. In fact he started in November 2001. This error is of no consequence as Dr Searle relied on the treating rheumatologist’s opinion that the overall dosage was small;
s) Dr Searle’s opinion on the potential affect of prednisone on AVN was the only expert evidence on the issue before the Arbitrator. The Appellant Employer called no evidence on this issue;
t) there is no evidence that Mr Dobson was an alcoholic and no evidence that Mr Dobson’s consumption of alcohol was a possible cause of his AVN;
u) there is no requirement that there has to be an opinion from a treating doctor for a worker to discharge the onus of proof;
v) the Arbitrator’s findings were open to her, and
w) the Arbitrator has made no error of fact or law.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
The above authorities are consistent with the principles discussed in Sandford and Edmonds and I intend to apply them in the present matter.
DISCUSSION AND FINDINGS
I do not accept the Appellant Employer’s submission that the connection between the fall in May 2002 and the AVN was ‘speculative’ and ‘highly improbable’. The Arbitrator’s finding that there was such a connection was supported by the available evidence, which she accepted. Her analysis started with an acceptance of Mr Dobson’s evidence that he injured his hip when he fell down eight stairs on 14 May 2002. The Appellant Employer’s main attack on this issue is that there was no recorded complaint of hip pain until 2003. Whilst that is correct it overlooks the fact that Mr Dobson’s wife corroborated his evidence of sustaining trauma to his hip in the fall when she observed, “grazing down his spine and right hip area” (Mr Dobson’s statement, 2 March 2006). In addition, the full history recorded by Dr Searle was:
“In May 2002 while he was at work he fell down some stairs and suffered a fracture of his left fifth metatarsal. This was extremely painful and tended to over-shadow any other problems at the time. He was aware of abrasions of his right elbow and his ‘pelvis’. When I asked him for more detail about the latter he explained that the abrasions were in exactly the same place as the scar he now has on the lateral side of his hip from his hip replacement operation. He also added that it was very sore after the fall though his main worry was his left foot. I spoke on the telephone to his wife who added that his abrasions were very marked and included abrasions down the length of his spine. (Comment: although the severe pain in his left foot masked the other problems to some extent he obviously suffered a significant blow on the lateral aspect of the right hip).”
Whilst Dr Searle’s conversation with Mrs Dobson introduces hearsay evidence, the Commission is not bound by the rules of evidence (see section 354(2) of the 1998 Act). The evidence was probative and relevant to the issue before the Arbitrator and she was entitled to have regard to it.
The Appellant Employer’s complaint that Dr Searle’s history of injury to the right hip in the May 2002 fall was inconsistent with other medical histories has some merit. For example, Dr Panjratan records a history in his report of 19 January 2005 that Mr Dobson “positively denied any problems in the right hip before 3 June 2003”. However, there are two points to note about this submission. First, apart from the bruising and pain in the right hip noted shortly after the fall, Mr Dobson did not have any particular problems with his hip until 2003. Second, that history does not overcome the direct observation of bruising over the right hip noted by Mrs Dobson. That observation was clear and persuasive corroboration of the assertion by Mr Dobson that he did suffer a trauma to his right hip in the fall.
After referring to the evidence in some detail the Arbitrator did not accept that it was “likely that” Mr Dobson was lying (transcript page 41 line 44), and added:
“He may or may not have mentioned it [the hip injury], it may or may not have been recorded, but that of itself does not say to me that the condition did not exist and was not caused necessarily in the way that the applicant says.”
The evidence is that after an injury of the kind sustained by Mr Dobson, AVN “may take up to two years to reveal itself” (Dr Searle 28 June 2005, page five). The Arbitrator was aware of that and after referring to the relevant literature, noted that the absence of a complaint did not mean “of itself that there was not an injury” (transcript page 41 line 36).
The Arbitrator accepted that a fall down eight stairs “was more than likely” going to “cause more than just one injury” and that whilst the most significant injury (the fracture) was the one that was likely to be dealt with and to “be the subject of discussions and treatments”, that did not mean that the other injuries did not happen (transcript page 43 line 11). She then found that:
·in the fall on 14 May 2002 Mr Dobson sustained injury to his right hip (transcript page 43 line 23);
·the trauma of that fall led to Mr Dobson developing AVN (transcript page 43 line 24), and
·as a result of developing AVN it was reasonably necessary that Mr Dobson undergo hip replacement surgery (transcript page 43 line 25).
The acceptance of rejection of evidence is a matter for the Arbitrator hearing the case. In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it is said:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54]).”
I do not believe the Arbitrator failed to exercise her discretion fairly or according to law or that she acted upon an incorrect legal principle in finding that Mr Dobson injured his right hip in the fall and in finding a connection between the fall and the AVN. She was not influenced by irrelevant considerations and made no mistake as to the evidence before her.
On the question of whether the AVN had been caused by Mr Dobson’s medication or consumption of alcohol, the Arbitrator considered those factors and rejected them on the basis of Dr Searle’s evidence at page five of his report, which states:
“The other possible causes of AVN including various blood diseases, Caisson disease, other systemic illnesses and alcoholism, do not apply in this case. The only other possible alternative is the Prednisone treatment. It is generally accepted that AVN can be caused by high doses of corticosteroids, or treatment over a long period of time, and so the comments of Dr Preston that the man had rapidly decreasing doses of Prednisone and ‘relatively small doses’, indicate that on the balance of probabilities the steroid usage was not the cause of his AVN. Certainly this is the case in view of the fact that there is a definite history of injury to the hip a year earlier when a careful history is taken.” (emphasis included)
The Appellant Employer called no evidence to support its argument that the AVN was caused by excessive consumption of alcohol. I accept that the evidence supports a submission that Mr Dobson was a heavy drinker and was advised by Dr Dwyer in May 2002 to decrease his consumption of alcohol. However, that evidence does not establish that Mr Dobson was an alcoholic. He worked for the Appellant Employer for several years before his accident. No evidence was called that his work performance had been impaired by his consumption of alcohol. The diagnosis of alcoholism requires expert medical opinion and there was no medical evidence to that effect. Further, there was no evidence that alcohol caused the AVN in Mr Dobson. The only evidence linking alcoholism and AVN was from Dr Searle who described it as a ‘possible cause’ but did not consider it applied to Mr Dobson. In the absence of expert evidence that Mr Dobson was an alcoholic, and that his AVN was caused by that condition, the Arbitrator was correct in not placing any weight on it.
In respect of the consumption of prednisone it is accepted that Mr Dobson started that medication in November 2001 and not in April 2002 as recorded by Dr Searle. However, the Arbitrator accepted the submission that it is not only the dosage that is relevant but also the period of time the patient is on the medication (transcript page 42 line 19). She then added at page 42 line 20:
“But I don’t know. I’m not a doctor, and that’s something I would have expected a doctor to tell me. So I would have expected the respondent, if the respondent is saying that it’s the medication, to have provided me with some material that supports that, and I say there are plenty of specialists out there who could be called upon to provide a report about that.”
The Appellant Employer called no evidence on this issue but merely attacked Dr Searle’s report on the ground that he had an incorrect history. His history about the consumption of prednisone came from his speaking to Dr Preston and being told, “she believed the prednisone the patient took would be considered ‘a small dose’”. Where a doctor’s history is incomplete or inaccurate that does not necessarily mean that his or her opinion is automatically of no value. In Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76 it was noted:
“In Paric at the above reference, Samuels JA refers to the situation where facts stated in an expert’s report do not completely correspond to the facts proved at trial, and held that where there is a ‘fair climate’ for the acceptance of the expert’s opinion, this may occur, notwithstanding the discrepancy just referred to, relying on various authorities which his Honour cited from America and elsewhere. His Honour said that this question is essentially one of fact and degree.”
The above reference to ‘Paric’ is a reference to Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 which was cited with approval in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-4.
By speaking to Mr Dobson’s treating rheumatologist Dr Searle took steps to obtain an accurate history of Mr Dobson’s consumption of prednisone. That history provided a ‘fair climate’ on which Dr Searle was entitled to express his opinion. Based on that history, it was open to the Arbitrator to accept his opinion.
In the absence of evidence from the Appellant Employer that the dose taken by Mr Dobson was a likely cause of the AVN, I do not believe that this challenge to the Arbitrator’s decision has any merit.
The absence of evidence from Mr Dobson’s treating doctors is not determinative. There is no evidence that any claim for privilege was made in respect of any report or reports from Mr Dobson’s treating doctors. If no reports were sought from the treating doctors there is no adverse inference to be drawn against Mr Dobson. There is however a note from the Central Coast Area Health Service ‘Discharge Summary’ dated 8 February 2005 (after the hip replacement operation) under “final diagnosis” which reads “Hip injury due to fall in 2002”.
The Appellant Employer’s submits that a perfectly convincing reason for Mr Dobson to be in the condition he was in at the time he required surgery was that he had an arthritic hip and that that conclusion is supported by “a large number of doctors, including treating doctors” (Appellant Employer’s submissions, paragraph 23). In fact, only Drs Panjratan and Mastroianni support that conclusion. It is neither helpful nor appropriate to determine cases on the basis of a ‘head count’ of the opinions expressed by experts in the matter. The evidence must be assessed for its probative value and a decision made. Acceptance of Dr Searle’s conclusion and the rejection of other medical evidence depended largely on whether the Arbitrator accepted Mr Dobson’s evidence that he did suffer a traumatic blow to his hip in the fall down the stairs. She did. She was entitled to do so.
Given the Arbitrator’s factual findings, Dr Mastroianni’s opinion was based on an incorrect history, namely, that the only injury sustained in the May 2002 fall was the fracture to the fifth metatarsal. As a result he failed to consider the impact of the fall on Mr Dobson’s right hip. In addition, he did not have the benefit of the MRI scan dated 17 June 2004 that confirmed the condition of AVN. Dr Panjratan’s reports do not deal with the May 2002 fall at all and are of no assistance in resolving the issues in the case.
I do not accept the Appellant Employer’s submission that the evidence fails to establish a ‘causal chain’ between the injury and the condition of AVN. What is required is a commonsense evaluation of the casual chain with due regard to the statutory formula by asking the question whether the condition claimed has “resulted from” the work event in question. In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Kirby P (as he then was) said at 463-4:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
In my opinion the Arbitrator did apply the correct approach to the test of causation. She carefully considered the factual issues and made findings that were open on the evidence. She then considered the expert opinions in the case and accepted that the evidence of Dr Searle established a “very strong connection” (transcript page 42 line 10) between the fall and the AVN. Those findings were open to her and disclose no error of fact, law or discretion.
DECISION
The Arbitrator’s decision dated 25 September 2006 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
7 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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