Taylor v PJM Building Management Pty Limited - [2013] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Taylor v PJM Building Management Pty Limited [2013] NSWWCCPD 52
APPELLANT:	Mark Andrew Taylor
RESPONDENT:	PJM Building Management Pty Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-9142/12
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	11 July 2013
DATE OF APPEAL DECISION:	8 October 2013
SUBJECT MATTER OF DECISION:	Section 9A Workers Compensation Act 1987; employment a substantial contributing factor to injury
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	R J Thomas
Respondent:	Stephen Lee Legal
ORDERS MADE ON APPEAL:	1. The findings of the Arbitrator and the orders found in Certificate of Determination dated 11 July 2013 are confirmed. 2. No order as to costs.

BACKGROUND

Mr Mark Andrew Taylor was employed as a site manager by PJM Building Management Pty Limited (the respondent) at a large residential complex in suburban Sydney known as Balmain Cove. It is not in dispute that, on 17 May 2011, Mr Taylor received injury to his right knee in the course of that employment.
The circumstances of the occurrence of that injury are not controversial. Mr Taylor was undertaking an inspection of the site on foot. He left his office, walked across an area described as “the park” to a bitumen walkway. He continued down the walkway, known as “Heart Break Hill” by reason of its steep grade, which led to a foreshore walkway. At the foot of that hill he walked towards a group of local Council employees who were inspecting a stormwater pit. After a discussion with those workers Mr Taylor continued his site inspection. After walking on flat ground, which was paved with bitumen and pavers, for about 20 or 30 metres, Mr Taylor heard a “pop” sound and immediately felt intense pain in his right knee.
Mr Taylor was treated on that day at Balmain hospital. Subsequently, on 16 June 2011, he underwent surgical treatment conducted by Dr Robert Sew Hoy, orthopaedic surgeon. That procedure was described by Dr Hoy as “right knee arthroscopy to debride a degenerative posterior horn medial meniscal tear and chondroplasty to the femoral trochlea”.
In April 2012 Mr Taylor, through his solicitors, claimed lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). On 1 August 2012 the respondent’s insurer gave Mr Taylor notice, pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), that liability for payment of compensation was disputed.
The dispute concerning Mr Taylor’s entitlement to compensation was the subject of an Application filed with the Commission in August 2012. The matter came before Arbitrator Garth Brown for conciliation/arbitration on 15 May 2013. The matter proceeded to arbitration. The claim was in respect of lump sums and medical expenses. The only issue raised for determination was whether Mr Taylor’s employment was, in terms of s 9A of the 1987 Act, a substantial contributing factor to the subject injury. The Arbitrator reserved his decision and a Certificate of Determination was issued on 11 July 2013 in the following terms:
“The Commission determines:

Orders:
1. Award respondent.

2. No order as to costs.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

There are two grounds upon which the Arbitrator’s decision is challenged. Those grounds raise questions as to whether the Arbitrator erred in:
(a) finding that there was a real probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of Mr Taylor’s life, if he had not been at work on 17 May 2011 or had not been working in that employment, and
(b) determining that employment was not a substantial contributing factor to the injury on 17 May 2011.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of 1998 Act have been met.

THE EVIDENCE

Mr Taylor tendered in evidence an undated questionnaire which had been produced by an investigator appointed by the insurer. In that document Mr Taylor provides answers to a number of questions concerning the occurrence of injury and his circumstances generally. Matters relevant to these proceedings raised in that document may be summarised as follows:
(a)     Mr Taylor’s general health and physical fitness is good;
(b)     one month prior to the injury Mr Taylor experienced soreness in both his knees. The left knee recovered, however the right knee retained soreness. The soreness to both knees had only occurred since commencing work at the site;
(c)     leisure pursuits undertaken by Mr Taylor were daily walking, gardening, swimming and bushwalking;
(d) the facts of the occurrence of injury as summarised at [2] above appear at [11] of that questionnaire, and
(e)     there were no noticeable issues of unevenness, cracks or potholes with the surface of the area on which Mr Taylor was walking at the time of injury.
Photographs in evidence of the foreshore walk, the location at which the injury occurred, demonstrate a flat, well maintained, broad walkway sealed with bitumen and bordered with pavers.
Mr Taylor tendered two reports prepared by Dr Medhat Guirgis, consultant orthopaedic surgeon, who had been qualified by his solicitors to provide an opinion for the purposes of this litigation. The first of those reports, dated 8 February 2012, included a history that four weeks before the subject injury Mr Taylor had felt “aching pain on the front of the right and left knees but this lasted only then for one week and then the pain went away. He remained symptom free until the [injury]”. The history of the occurrence of injury as recorded is consistent with the description given by Mr Taylor in the evidence summarised above. Dr Guirgis expressed the following opinion:
“The 17-5-2011 incident resulted in ongoing post-traumatic symptoms in the right knee joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures including tearing of the medial meniscus. There was MRI evidence of tearing of the body and posterior third of the medial meniscus with extrusion of the meniscus centrally. This injury had also triggered & aggravated the effects of the underlying degenerative changes …”
Dr Guirgis expressed the view that Mr Taylor’s employment was a substantial contributing factor to the injuries described and further stated, “these injuries were a substantial contributing factor to the symptoms, signs, incapacities and disabilities as described above”. An assessment was made of whole person impairment of 11 per cent.
The second report of Dr Guirgis, dated 21 May 2012, was prepared in response to correspondence received from the insurer in which a number of questions were posed. In response to a request that Dr Guirgis provide an opinion as to how Mr Taylor’s employment was a substantial contributing factor to his injury, Dr Guirgis replied that Mr Taylor’s duties:
“had required prolonged walking around the site and also frequent negotiation of steps to go around the site. On 23 [sic, 17] May 2011 he was walking towards his office at work when his right knee popped on him. He was taken to Balmain hospital. As such according to his history we are dealing here with an incident that happened in the course of his employment.”
The second question put by the insurer and the reply were as follows:
“Q. Please confirm if the same injury could have occurred at a similar time irrespective of Mr Taylor’s employment? Please provide your detailed rationale.
A. On the balance of probabilities YES. Such an injury would happen whenever somebody loaded his weight on a knee that was not prepared to receive that weight.” (emphasis in original)
Dr Guirgis was expressly asked to “comment on and confirm whether the history of pain Mr Taylor reported four weeks earlier … had anything to do with Mr Taylor’s injury of 17 May 2011”. Dr Guirgis replied “No. On the balance of probabilities the complaints felt on the front of his knees represented a bout of symptoms caused by the evolving patellofemoral degenerative joint disease expected to be present at his age”.
The following question was put by the insurer and Dr Guirgis’s response is noted as follows:
“Q. Please confirm if the injury is a result of the identified underlying degenerative disease, given that there was no frank incident. Please provide your specific rationale.
A. Tearing of the medial meniscus with extrusion of the torn meniscus centrally would not be classified purely as being degenerative. Such pathology would indicate an element of traumatic stress applied to the knee as what would happen whenever somebody loaded his weight on a knee that was not prepared to receive that weight.”
The respondent tendered three reports from Dr Thomas A Silva, consultant orthopaedic surgeon. In the first of those reports Dr Silva found that the meniscal tear of the right knee was probably “work related to the incident at work on 17 May 2011”. It appears that Dr Silva, when expressing that view, had proceeded upon the assumption that Mr Taylor was walking on rough terrain on the day in question. It is clear that Dr Silva, at the time of his first report, was of the opinion that Mr Taylor’s employment was a substantial contributing factor to the subject injury. That opinion was altered in a subsequent report in which a revised history was noted concerning the surface conditions of the walkway and which included detail concerning Mr Taylor’s pastime of bushwalking. Dr Silva stated that:
“it is more likely than not that it was his bushwalking that had the more uneven terrain and therefore more likely to have caused his knee problems than walking on the footpaths by the waterside that you have taken photographs of.”
I note that before preparing that report Dr Silva had seen the photographs which had accompanied the investigator’s report and which were in evidence.
Having regard to the state of Dr Silva’s evidence, counsel appearing on behalf of the respondent before the Arbitrator placed no reliance upon his opinion as to causation. Counsel informed the Arbitrator that the respondent relied upon the opinion of Dr Silva only in respect of the assessment of whole person impairment. It was submitted that, should Mr Taylor succeed in his application concerning those issues raised by the provisions of s 9A, Dr Silva’s reports should nonetheless be submitted to the Registrar for referral to an Approved Medical Specialist.
The respondent had tendered the clinical notes relating to treatment of Mr Taylor compiled by Dr Ian Longhurst, general practitioner, and relevant documents produced by Dr Hoy. Among those documents were a number of reports from Dr Hoy relating to his treatment of Mr Taylor’s right knee. The first of those reports, dated 3 June 2011, recorded a history of injury that Mr Taylor “was walking on the site on 18 (sic, 17) May 2011when he developed acute onset of medial right knee pain without associated trauma” and included an assessment that “Mr Taylor has a degenerative right knee meniscal tear with a two week period of significant symptoms”. Dr Hoy anticipated a need for surgery. It is clear from subsequent reports that Dr Hoy’s treatment concerned “arthroscopy to debride a degenerative posterior horn medial meniscal tear and chondroplasty to the femoral trochlea” which was performed on 16 June 2011 at the Mater hospital.
There is nothing stated by Dr Hoy in his reports to Dr Longhurst that directly addresses the question of causation or, in particular, those matters raised by the provisions of s 9A.
The respondent tendered the clinical notes produced by Balmain hospital. A history was there recorded on the day of injury as follows:
“Presents with right knee pain. Pt walking and felt his knee pop. Has been at work today. Knee is tender at medial aspect. Panadol x 2 30 minutes ago.
Presenting problems: was walking at work when suddenly felt and heard knee pop and then gave way. Has been unable to weight bear since due to pain in medial knee. No PHx knee problems. Pt otherwise well.”
Dr Longhurst’s notes include an entry recorded on 18 May 2011 as follows:
“Hurt his knee walking at work was a bit sore prior to work for a few weeks at the back but prior to that no problems.”
MRI scan imaging was requested by Dr Longhurst.
On 24 May 2011 Dr Longhurst recorded a further history as follows:
“History of popping suddenly while walking at work and sudden severe pain in knee but pain has been present in a lesser form for couple months beforehand.”

SUBMISSIONS BEFORE THE ARBITRATOR

Submissions were directed to the only issue raised before the Arbitrator, being whether, having regard to the provisions of s 9A of the 1987 Act, Mr Taylor’s employment was a substantial contributing factor to the subject injury. Mr Taylor’s counsel put the following matters in support of the contention that the requirements of s 9A had been met:
(a)     the inspection walk was “part of [Mr Taylor’s] duties”;
(b)     that the injury “both arose out of [sic, and in] the course of Mr Taylor’s employment”;
(c) “employment” as it is appears in s 9A refers to “both the tasks of the employment and matters incidental thereto”;
(d)     Dr Guirgis’s evidence suggests that the “popping sensation” experienced in the knee “was a frank incident involving an injury that included the tearing of the medial meniscus of the right knee”. The “mechanics” of the injury were explained by Dr Guirgis as involving weight bearing when the joint was “not prepared to receive such a weight”;
(e) the insurer, in asking “if the same injury could have occurred at a similar time irrespective of Mr Taylor’s employment” demonstrated an attempt by the insurer to direct Dr Guirgis’s attention to matters raised by s 9A(2)(d). The insurer had not “asked the proper question”. It was put that “anything is possible”, but that the issue was “whether [the injury] would have occurred at about the same time in his life…”. The reply of Dr Guirgis only supports the proposition that the injury “could have happened in similar circumstances or a similar fashion elsewhere”, and
(f)      there should be a finding that the employment was a substantial contributing factor to the injury.
Counsel for the respondent accepted that, having regard to the “temporal element”, the injury arose in the course of Mr Taylor’s employment. It was argued that “much more was required”. The employment must be a substantial contributing factor before liability to pay compensation is established.
Reference was made to the decision of the plurality in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 7 DDCR 75 (Badawi). It was put that the evidence did not establish a causal connection between work and injury that was “real and of substance”.
It was argued that Dr Guirgis in dealing with the questions put to him by the insurer, had “confused the concepts” of injury “arising in the course of employment” and that of “employment being a substantial contributing factor to injury”.
It was further argued that any criticism of the question put to Dr Guirgis raising those matters addressed by s 9A(2)(d) was overcome by the terms of Dr Guirgis’s reply. Dr Guirgis’s response indicated that “such an injury would happen whenever somebody loaded his weight on a knee that was not prepared to receive that weight”.
It was put that the evidence did not support a conclusion that Mr Taylor’s employment was a substantial contributing factor to the injury.

THE ARBITRATOR’S DECISION

The Arbitrator, following a summary of the evidence and submissions put by the parties, made a finding (at [27] of Reasons) that “there is no doubt [Mr Taylor] suffered a sudden and identifiable pathological change in his knee during the course of his employment”. The Arbitrator proceeded to observe that the provisions of s 9A of the 1987 Act “specifically provides that a temporal connection is of itself insufficient to satisfy the requirements of the section”.
The Arbitrator made reference to relevant authority and noted that the onus of establishing that employment was a substantial contributing factor to injury “lies with [the worker]”. The Arbitrator observed that questions raised by s 9A must be “decided on the evidence overall, including a consideration of the matters described in s 9A(2), and that it is not purely a medical question” (at [30] of Reasons).
It was noted by the Arbitrator that Mr Taylor received a “degree of support from Dr Guirgis that employment was a substantial contributing factor” to injury but that such support was “based largely on acceptance of the fact that the incident took place whilst the applicant was at work” (at [54] of Reasons).
The Arbitrator made a finding that the subject injury occurred “whilst [Mr Taylor] was simply walking on a flat even surface”. The Arbitrator also accepted that the evidence:
“indicates that as part of [Mr Taylor’s] employment duties he was required regularly to ascend and descend flights of well maintained steps and walk up and down paved inclines however having regard to the photographs admitted into the proceedings I am not satisfied the walkways were rough or uneven.”
The Arbitrator made a further finding, which clearly concerned those matters raised by the provisions found in ss 9A(2)(d) and (f), in the following terms:
“Having regard to [Mr Taylor’s] age and lifestyle factors I am of the view that there was a real possibility the injury or a similar injury would have happened anyway, at about the same time or at the same stage of [Mr Taylor’s] life, if he had not been at work on 17 May 2011 or had not been working in that employment.”
The Arbitrator’s conclusion concerning matters raised with respect to the provisions of s 9A is to be found (at [61] of Reasons) where it was stated:
“Whether employment is a substantial contributing factor to an injury is a question of fact and a matter of impression and degree. For employment to be a ‘substantial contributing factor’ to the injury for the purposes of s 9A the causal connection must be ‘real and of substance’ it is not sufficient that the injury occurred in the course of employment or that it arose out of employment. The causal test imposed by s 9A is more stringent than that imposed by s 4 of the 1987 Act. I have had regard to the lay evidence and the medical evidence. I have taken into consideration counsels’ submissions. I have had regard to the factors set out in s 9A. I have had regard to the circumstances of injury. I have had regard to [Mr Taylor’s] employment and the nature and conditions of such employment as set out in the statement evidence and referenced in the medical reports. I have had regard to all the medical evidence admitted into the proceedings. I am satisfied once it is accepted that ‘substantial’ means ‘in a manner that is real and of substance’ the answer when the test is applied to the facts of this case is that the contribution of the applicant’s employment to his injury was not real and of substance. It follows that I am not satisfied the applicant’s employment is a substantial contributing factor to the injury.”

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Argument raised on this appeal concerns the correctness, or otherwise, of the Arbitrator’s conclusion that Mr Thomas had failed, as is required by s 9A of the 1987 Act, to prove that his employment was a substantial contributing factor to the subject injury. That section provides:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(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 workplace 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.”
Before addressing the grounds relied upon and argument advanced, it is convenient to consider the decision of the Court of Appeal in Badawi. In that matter, the Court was constituted by five judges given that leave had been sought to re-argue Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740 (Mercer), an earlier decision of the Court dealing with the proper construction and application of s 9A. In Badawi the plurality (Allsop P, Beazley JA [as her Honour then was] and McColl JA (at [83])) and Basten JA, (at [113]) in a separate judgment agreeing in the orders proposed by the plurality, each concluded that Mercer should not be followed where it was there stated “that the causal requirement in s 9A is less stringent than in s 9 (as read with s 4)”.
The plurality in Badawi, earlier in its judgment (at [48]), had summarised a number of propositions which had emerged from the reasoning of the Court found in the decision of Mercer and in subsequent authority as follows:
“The following propositions distilled from Mercer in respect of the operation of s 9A have been accepted as correct and can be taken to be uncontroversial:
(1)     The strength of the causal linkage between the employment concerned and the injury is the question in issue: Hevi Lift (PNG) Ltd v Etherington (2005) 2 DDCR 271 at [106] per McColl JA (Mason P and Beazley JA agreeing).
(2)     The fact of the injury arising out or [sic, of] in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow (2004) 5 DDCR 1 at [36] per Santow JA (Beazley and Ipp JJA agreeing).
(3) Both s 4 and s 9A require independent satisfaction: McMahon v Lagana (t/as the Vessel Nimble II) (2004) 4 DDCR 348 at [25] and [33] per Hodgson JA (Santow JA and Stein AJA agreeing) and Larson v Commissioner of Police (2004) 3 DDCR 365 at [38] per Tobias JA (Mason P and Santow JA agreeing).
(4) Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair (2005) 4 DDCR 206 at [49] per Spigelman CJ (Hodgson and Bryson JJA agreeing); and Dayton at [22] per Giles JA.
(5)     Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]-[1-6] per McColl JA (Mason P and Beazley JA agreeing).
(6)     Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: Haider v JP Morgan Holdings Aust Ltd (t/as JP Morgan Operations Australia Ltd) (2007) 4 DDCR 634 at [56] per Basten JA (Giles and McColl JJA agreeing); Workcover Authority (NSW) v Walsh [2004] NSWCA 186 at [99]; McMahon v Lagana at [32] per Hodgson JA (Santow JA and Stein AJA agreeing); Dayton at [22] per Giles JA and Murray v Shillingsworth (2006) 68 NSWLR 451; 4 DDCR 313; (2006) 4 DDCR 313 at [65] per Einstein J.
(7)     The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’: Mercer at [13] and Federal Broom at 632-633. We agree.” (emphasis included in original)
Section 9A was found by the plurality in Badawi to involve a “causative element”, given the requirement that the “employment concerned” be a substantial contributing factor to injury. That causal connection, having regard to the presence of the word “substantial”, is one that is “real and of substance” (at [80] – [82]).

The grounds of appeal

The first ground relied upon suggests that the Arbitrator erred in concluding (at [59] of Reasons) that:
“The applicant was in employment for a relatively short period of time prior to the incident, about 6 months. Having regard to the applicant’s age and lifestyle factors I am of the view that there was a real probability the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the applicant’s life, if he had not been at work on 17 May 2011 or had not been working in that employment.”
It is argued that there was no expert medical or other evidence that would “suggest” that the injury would have happened “in any event”. It is put that the Arbitrator’s conclusion was founded upon speculation and further that Mr Taylor’s “age and lifestyle factors” did not provide a basis, as stated by the Arbitrator, for the challenged finding.
As is later stated by the Arbitrator (at [61] of Reasons) he “had regard to the factors set out in s 9A”. It is clear that those “factors” considered were those matters in s 9A(2) which are enumerated, but not intended by the legislature to be an exhaustive list, as being matters to be taken into account when the application of s 9A is being considered. It is also reasonably clear that the Arbitrator was (at [59] of Reasons), addressing ss 9A(2)(c) (duration of the employment), 9A(2)(d) (probability injury would have happened anyway at about the same time etc) and 9A(2)(f) (Mr Taylor’s lifestyle).
The submissions that there was no evidence which would permit the Arbitrator to conclude as he did, and that his conclusion expressed at [59] was based upon speculation must be rejected. The evidence was that Mr Taylor was born in 1956. The relevance of Mr Taylor’s age is plainly stated by Dr Guirgis in his evidence which is summarised at [24] of the Arbitrator’s Reasons. Dr Guirgis had been asked to comment as to the relevance of symptoms experienced by Mr Taylor some four weeks prior to the injury. Dr Guirgis stated that those symptoms were not relevant to injury but proceeded to state:
“on the balance of probabilities the complaints felt on the front of his knees represented a bout of symptoms caused by the evolving patellofemoral degenerative joint disease expected to be present at his age.”
The evidence of Dr Guirgis which is noted at [15] above does not expressly associate the presence of degeneration in the joint with the occurrence of injury, but it was, in my view, open to inference, having regard to the observation that “tearing of the medial meniscus…would not be classified purely as being degenerative”, that the presence of degeneration was in some manner relevant to the occurrence of the tear.
With respect to Mr Taylor’s lifestyle and his activities outside the workplace (s 9A(2)(f)) the Arbitrator had noted the evidence of Mr Taylor’s general practitioner, Dr Longhurst, (at [20] of Reasons) which touched upon that subject as follows:
“The clinical records of Dr Longhurst make multiple reference to the applicant’s outdoor activities including camping, walking club, and gardening. For example entries dated 9 February 2009 and dated 23 February 2009, 31 March 2009, 19 November 2009 and 29 April 2010 reference the applicant being involved in walking and other physical activities including entries such as ‘last week walking swimming shelly beach’, ‘exercise daily around the dam 90 minutes and enjoying same’, ‘has been walking a bit more’, ‘enjoys working hard physically in the garden makes him tired and enjoys the physicality’ and ‘working hard on preparing the house to go on the market’, ‘has been at it full on for about a month’ and ‘has replaced the garage roof and walls and put in roller doors and windows and a fence’.
The Arbitrator had comprehensively summarised the evidence of Dr Guirgis between [22] and [24] of his Reasons. I have earlier, at [13] above, noted the evidence of Dr Guirgis which appears to have been elicited by the insurer in an attempt to address matters raised by s 9A(2)(d). Mr Taylor correctly notes that the insurer used the word “could”, rather than “would” as appears in the subsection, in its question put to Dr Guirgis. Notwithstanding the form of the questions, Dr Guirgis expressed his opinion, as noted earlier, utilising the term “would”.
Section 9A(2)(d) addresses “the probability that the injury or a similar injury would have happened anyway …”. It is my opinion that, notwithstanding the form of the question put to Dr Guirgis, his response plainly constitutes evidence upon which a conclusion as to such probability may be founded. Such evidence, in my opinion, was sufficient to meet the evidentiary burden upon the respondent concerning matters raised by the sub-subsection (Watts v Rake [1960] HCA 58; 108 CLR 158; Purkessv Crittenden [1965] HCA 34; 114 CLR 165 (per Barwick CJ, Kitto and Taylor JJ at 168); Nominal Defendant v Clancy [2007] NSWCA 349 per Santow JA, (Campbell JA agreeing) at [45]).
In my opinion the evidence, as I have attempted to summarise above, permitted the Arbitrator’s conclusion as found at [59] of Reasons. The evidence is that Mr Taylor is 56 years of age. It was Dr Guirgis’s view that the degenerative condition of Mr Taylor’s right knee pre injury may be expected at such an age. The occurrence of a tear to a medial meniscus is not to be classified “purely” as degenerative. The evidence found in Dr Longhurst’s notes establishes that Mr Taylor’s lifestyle included very considerable physical activity outside the work environment including camping, walking club and gardening as well as home maintenance activities. Dr Guirgis’s evidence as noted above deals with the probability of injury occurring “anyway”. Ground one must be rejected.
The second ground challenges the Arbitrator’s finding that he was not satisfied that Mr Taylor’s employment was a substantial contributing factor to the injury.
Whilst there is no question that the respondent accepted that the subject injury arose in the course of employment, a temporal connection, examination of the transcript does not reveal, as asserted by Mr Taylor (at [17] of submissions), any concession by the respondent at the hearing that the injury arose out of the employment, a causal connection.
The onus was upon Mr Taylor to establish that the requirements of s 9A had been met. The manner in which argument is advanced in respect of this ground suggests that the Arbitrator has erred in his factual conclusion. It is not suggested that any error of law has been committed. Submissions appear to repeat those arguments advanced before the Arbitrator and careful attention is given to those factors addressed in s 9A(2). It is put that “all factors support [Mr Taylor’s] case that employment was a substantial contributing factor [to injury]”.
Mr Taylor seeks to emphasise in submissions that the injury occurred as he was walking, an activity not merely incidental to his employment but one that “was [a] direct and essential part of his employment”. In essence the ‘employment’ was the walking. Reliance is placed upon the evidence of Dr Guirgis in support of the proposition that “the mechanics of the injury” were such as to have been caused by “an element of traumatic stress” as described by that practitioner. The thrust of Mr Taylor’s argument appears to be stated (at [26] of submissions) where it was put:
“The proper inference to be drawn from the [evidence summarised] above is that whilst the Appellant does not recall any incident or reason for the occurrence of the injury, his recollection being that he was simply ‘walking on flat ground which was a mixture of bitumen and pavers. I did not observe any trip obstacles.’ … it was probable that his right knee received a loaded weight that the knee was not prepared to receive, resulting in the occurrence of the injury.” (emphasis included in original)
The authorities establish that the test imposed by s 9A is intended to be more stringent than the test or standard created by reference to the concept of the injury arising “out of” employment (s 4). In the present case, as in Badawi, the injury arose in the course of employment and thus the only question for determination was, as stated by Basten JA in Badawi (at [114]), the “nature of the causal connection”. The plurality in Badawi, it must be noted, adopted as correct statements in earlier authority (noted at [38] above) that the question in issue was the strength of the causal linkage between the employment concerned and the injury.
Observations made by Basten JA in Badawi (at [118]–[121]) and later in Da Ros v Qantas Airways Ltd [2010] NSWCA 89; 8 DDCR 103 (at [21], [24] and [28]) suggest that the requirements of s 9A(1) are met in circumstances where the injury arises in the course of employment and where that injury arose out of an activity of the worker alone in the absence of misconduct. Those observations must be considered in the light of those authorities noted by the plurality (at [48]) and the terms of s 9A(3)(a). As his Honour made clear, factual circumstances vary from case to case as in those matters cited, and the result may be that a finding of temporal connection (in the course of employment) “may not entail an answer or even give rise to an inference in relation to the question of causal connection” Badawi (at [121]). Those observations were recently considered by the Court in Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214; 9 DDCR 375, when upholding a decision of the President of the Commission. It was there stated that “causation is quite a different concept from temporal occurrence” (per Giles JA at [44] and [45], with whom Hodgson JA and Handley AJA agreed)
The Arbitrator’s findings concerning the occurrence of injury are to be found at [57] of Reasons where it was said:
“It was not in dispute, and I am satisfied, the incident giving rise to [Mr Taylor] suffering the sudden and identifiable pathological change in his right knee on the morning of 17 May 2011 happened whilst [Mr Taylor] was simply walking on a flat, even surface.”
The Arbitrator excluded both the relevance and occurrence of any external trauma.
The mechanics of the failure of Mr Taylor’s right knee joint are explained, to an extent, in the evidence of Dr Guirgis. He attributes the injury to sudden weight bearing of an unprepared joint. No finding was made by the Arbitrator expressly adopting the matters raised by Dr Guirgis concerning causation. It is, however, clear that the Arbitrator was of the view that, whatever the anatomical circumstances giving rise to injury may have been, such were not in any way contributed to by the employment, except that walking was a necessary part of Mr Taylor’s job.
Dr Guirgis’s hypothesis concerning causation involving unprepared weight bearing was the only reliable expert evidence concerning that issue before the Arbitrator. In submissions, it seems, Mr Taylor suggests that an inference should have been drawn by the Arbitrator that the injury occurred as explained by Dr Guirgis. Section 9A would be satisfied, it is argued, given that walking was required by the employment.
I am not persuaded that the Arbitrator was in any manner obliged to determine whether or not Dr Guirgis’s hypothesis should be accepted. The approach adopted by the Arbitrator was to evaluate the strength of any linkage with the employment. As earlier noted, external trauma was excluded. That walking was required by the terms of the employment was acknowledged (at [58] of Reasons). That fact, in the Arbitrator’s view, was not sufficient to establish that Mr Taylor’s employment had made a contribution to injury that was real and of substance (at [60] of Reasons).
The task before the Arbitrator required evaluation by him of the linkage between employment and injury. That task has been discharged and the Arbitrator’s conclusion was, in my view, open to him on the evidence. In the circumstances no relevant error has been demonstrated and ground two must be rejected.
Both grounds relied upon by Mr Taylor have failed and the Appeal must be dismissed. Appropriate orders appear below.

DECISION

The findings of the Arbitrator and the orders found in Certificate of Determination dated 11 July 2013 are confirmed.

COSTS

The Respondent in its Notice of Opposition to the appeal sought an order that Mr Taylor “pay its costs of the appeal”. No argument in support of that application is advanced. In the circumstances I consider it appropriate that no order as to costs be made.

Kevin O'Grady
Deputy President

8 October 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE