Thompson v St John of God Healthcare Inc
[2021] WADC 15
•19 FEBRUARY 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THOMPSON -v- ST JOHN OF GOD HEALTHCARE INC [2021] WADC 15
CORAM: GOETZE DCJ
HEARD: 15 FEBRUARY 2021
DELIVERED : 19 FEBRUARY 2021
FILE NO/S: APP 72 of 2020
BETWEEN: ANNIE DERWIN THOMPSON
Appellant
AND
ST JOHN OF GOD HEALTHCARE INC
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR SONTER
File Number : A 61128
Catchwords:
Workers' compensation - Appeal from arbitrator claiming error in law in applying the wrong legal test in determining whether or not the applicant suffered an injury and that he erred in law in finding the applicant to be an unreliable witness - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal dismissed
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M J Lourey |
| Respondent | : | Mr R D McCabe |
Solicitors:
| Appellant | : | Chapmans |
| Respondent | : | St John Of God Health Care Inc. |
Case(s) referred to in decision(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Dodson v Woolworths Group Ltd [2020] WADC 157
Hetherington v Amalgamated Collieries of WA Limited [1939] HCA 36; (1939) 62 CLR 317
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148
GOETZE DCJ:
On the morning of 26 November 2018, Annie Derwin Thompson attended an exercise class at her gym, which included operating a leg press. After returning to her home from the gym, she cleaned her front yard fish pond.
Later on, at 2.00 pm on the same day, Ms Thompson commenced her work as a theatre nurse at St John of God Hospital, Midland. Her shift concluded at approximately 10.00 pm that evening. It was a busy shift and she only had a newly graduated nurse to assist her such that, during the shift, she claimed to have suffered the gradual onset of low back pain radiating into her right leg.
At 3.00 am on 27 November 2018, Ms Thompson attended at the Emergency Department at St John of God Hospital, Midland complaining of low back and right buttock pain radiating down into her right leg. Ms Thompson claimed that her pain was work caused.
Although the presence of Ms Thompson's low back radiculopathy was not disputed by the hospital, liability for her unfitness to work was disputed. The hospital alleged Ms Thompson suffered her injury at the gym.
The dispute proceeded to arbitration before Mr M Sonter at WorkCover, who dismissed Ms Thompson's claim.
Ms Thompson now seeks to appeal the learned arbitrator's decision.
The arbitrator's reasons
The learned arbitrator found that there were fundamental and contradictory differences between the cases advanced on behalf of Ms Thompson and the hospital. In that circumstance, it was necessary to determine the facts of the matter. This included a consideration of Ms Thompson's credibility. Principally, this was because she told certain health providers that she suffered an injury whilst at the gym on the morning before her work shift, rather than her injury arising at work.
As part of the learned arbitrator's 'Overview' of the application before him, he observed, correctly, that Ms Thompson bore the onus of proof. However, the appeal complains that, in his 'Overview', the learned arbitrator wrongly required Ms Thompson to prove the legal issue that her employment was a 'significant … contributing factor' in contracting the alleged injury. Following his 'Overview', the learned arbitrator set forth what he saw as being 'Legal Issues and Principles' by stating that:
9.The issues in this matter can be summarised as follows:
(a)Whether Ms Thompson sustained an injury arising out of or in the course of her employment (s 5(1)(a), Workers' Compensation and Injury Management Act 1981 (WA) (Act));
(b)if so, whether she has been partially or totally incapacitated for work as a result of the injury and is entitled to receive compensation (ss 18, 21); and
(c)if so, whether she is entitled to the payment of reasonable medical treatment and travelling expenses (Sch 1 cl 17, 19).
The learned arbitrator then separately dealt with the undisputed and disputed facts of the matter, before finding both that Ms Thompson was an unreliable witness and that she sustained her injury whilst operating a leg press at the gym on the morning of 26 November 2018.
The learned arbitrator concluded:
44.… I am not persuaded, on the balance of probabilities, to accept the assertions made on behalf of Ms Thompson that the medical evidence establishes that she sustained a personal injury by accident arising out of in the course of her employment. …
The learned arbitrator then dismissed Ms Thompson's application.
Grounds of appeal
There are two grounds of appeal, namely that:
1.The Arbitrator erred in law in applying the wrong legal test in determining whether or not the applicant suffered an injury, as defined in s. 5 of the WCIMA.
PARTICULARS
(i)At all times the arbitrator was required to determine whether the applicant suffered an injury as defined in s. 5, definition (a), of the WCIMA, on 26 November 2018.
(ii)That task required the Arbitrator to ask only one question:
Did Ms Thompsons [sic] injury of 26 November 2018 arise out of or in the course of her employment?
(iii)Instead the Arbitrator, at paragraph 6 of his Reasons, applied the wrong legal test when he stated that the applicant was required to establish that her employment with the respondent was a significant contributing factor in her contract in the alleged injury.
(iv)That was the wrong legal test and the application with the correct test by the Arbitrator would have led to a different result in the Applicants [sic] favour.
2.The Arbitrator erred in law when he found the applicant an unreliable witness (paragraph 8 of the Reasons) when there is no reliable evidence to support that finding, or alternatively no reasonable Tribunal could have reached that finding on the evidence before the Arbitrator.
The requirement for the appeal to involve a question of law
It is agreed between the parties that Ms Thompson requires leave to appeal against the learned arbitrator's decision and that the appeal must concern an issue of law by reason of s 247(2) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). This provision has now been litigated both in this court and in the Court of Appeal on numerous occasions. The most recent summary is that contained in Dodson v Woolworths Group Ltd [2020] WADC 157 [17] ‑ [24] inclusive (Lonsdale DCJ, delivered on 11 December 2020).
An appeal involves a question of law when either an error of law, or error of mixed law in fact, is involved: Catholic Education Office of WA v Granitto [2012] WASCA 266 [53]. The distinction between errors of law, errors of fact and mixed errors of law and fact can be elusive. There is no satisfactory test of universal application that has yet been formulated: Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [37].
If, when properly examined, the ground of appeal does not involve a question of law, then 'linguistic gymnastics' in the formulation of the ground cannot alter the position: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21]. A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to the error, so that but for the error, the decision would or might have been different: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15].
Does the first ground of appeal involve a matter of law?
Although the learned arbitrator's reasons referred to the requirement for Ms Thompson to prove her employment was a 'significant … contributing factor' in her contracting the alleged injury, that must be noted to have been stated under the heading of 'Overview'. Then, when it came to defining the 'Legal Issues and Principles' in the application, the learned arbitrator quoted directly from s 5(1)(a) of the WCIMA, defining the issue as to whether Ms Thompson
sustained an injury arising out of or in the course of her employment.
This is precisely in terms of s 5(1)(a) which reads as follows:
5.Terms Used
(a)In this Act, unless the contrary intention appears -
Injury means (a) a personal injury by accident arising out of or in the course of the employment, …
It can be seen that, although there was reference to the words complained of in his 'Overview', when later setting forth first, the 'Legal Issues and Principles' and secondly, when making his findings that Ms Thompson sustained an injury whilst operating the leg press at the gym and restating that finding in terms of the issues he had already identified, the learned arbitrator's approach to Ms Thompson's application was by reference to s 5(1)(a). This was correct as a matter of law. He did not approach his task with reference to Ms Thompson's work as being 'a significant … contributing factor' as set out in his 'Overview', which is more in line with s 5(1)(c) and s 5(1)(d) referring to compensable conditions
where the employment was a contributing factor to that (condition) and contributed to a significant degree.
For these reasons, the learned arbitrator did not apply the wrong legal test in determining whether or not Ms Thompson suffered an injury as defined in s 5(1)(a) of the WCIMA.
In any event and with respect to his 'Overview', the learned arbitrator's decision is to be read as a whole, and not minutely, or finely, or keenly attuned to the perception of error and not in an overly critical or pernickety manner and not concerned with the looseness of language or unhappy phrasing: Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148 [67].
It follows that, at face value, the first ground of appeal involves a question of law.
Does the second ground of appeal involve a matter of law?
The second ground of appeal concerns the learned arbitrator's finding that Ms Thompson was an unreliable witness. However, at face value, there is generally no law involved in deciding this factual issue and no error of law was advanced on Ms Thompson's behalf, save as will be set out at [22] below.
The approach of the parties at the hearing of the appeal
At the hearing of the appeal, Mr M J Lourey, counsel for Ms Thompson, submitted that the grounds of appeal can be restated in that the learned arbitrator:
1.adopted the wrong approach at law when dealing with Ms Thompson's application because she asserted there was nothing wrong with her at the start of her shift, but then, she suffered physiological change in her lower back during the course of her shift and the arbitrator failed to examine this claim; and
2.incorrectly proceeded to consider the conflict in evidence as to whether Ms Thompson suffered an injury at the gym or at work. The arbitrator failed to approach the matter as outlined at [22.1] above.
The grounds of appeal as filed were therefore purportedly drawn to reflect these two complaints. However, there was no attempt to amend these at the hearing of the appeal.
Mr R D McCabe, counsel for the hospital, conceded that Ms Thompson had an admitted underlying asymptomatic L5 radiculopathy. He said she denied any low back complaint prior to her afternoon shift on 26 November 2018. Her complaint before the arbitrator had been the gradual insidious onset of right leg pain upon undertaking that shift. However, the hospital denied it was her work on that shift which caused her previous asymptomatic low back condition to produce right leg pain. Rather, the defence was that the cause of her pain was exercise at the gym earlier on in the same day.
Ms Thompson's approach to the first ground of appeal
At the hearing of the appeal, Mr Lourey relied upon:
1.the evidence of Ms Thompson that she was fit and well at the start of her work shift. Her evidence was that:
(a)she
had no pain when (she) arrived at work. Zero. Nil;
and
(b)she began to experience significant pain symptoms several hours into her shift;
and
2.the evidence of the Ward Coordinator, by way of a handwritten note dated 18 December 2018, that:
(a)she
noticed (Ms Thompson) put her hand on her back and limping when walking;
and
(b)Ms Thompson said she was:
feeling sore, very painful and getting worse since started [sic] of shift: pain of muscle and none [sic] leg pain.
Mr Lourey submitted that the evidence from [24] above shows Ms Thompson to have been pain free at the start of her shift, with symptoms developing during her shift, such that the physiological change occurred during her shift and for which, she should be compensated.
Mr Lourey submitted that even if some form of injury (in the generic sense) had been suffered prior to the commencement of her shift, that would not be relevant to the determination of whether an injury had occurred for the purpose of s 5(1)(a) of the WCIMA because employers take their workers as they find them: Hetherington v Amalgamated Collieries of WA Limited [1939] HCA 36; (1939) 62 CLR 317.
Hetherington's case involved an underlying state of advanced arteriosclerosis from which Hetherington was likely to die at any time as a consequence of his disease, with or without work. At the time of his death from the disease, he had been working in a colliery and was returning to the surface at the end of his shift. The issue was whether Hetherington's death was the result of a personal accident in the course of his employment. The High Court found, unanimously, that his death did arise in the course of employment.
Hetherington's case succeeded because his underlying condition, combined with his work, caused his death.
Hetherington's case ((328) Latham CJ) is authority for the general proposition that
a man suffering from a disease who happens to die because his ordinary work, combined with the disease, brings about his death
suffers an injury by accident arising out of his employment.
In contrast to the facts of Hetherington's case, the defence case was that Ms Thompson's underlying condition was not made symptomatic by reason of her work. Rather, the defence was that her underlying condition was made symptomatic by reason of her exercise at the gym and that is why she developed the low back radiculopathy with right leg pain at the gym as she herself reported to health professionals, as will be seen at [38] below.
Mr Lourey's written submissions dated 5 December 2019, in preparation for the arbitration, observed that the hospital
disputes (Ms Thompson) suffered any injury (as defined) at work on 26 November 2018, and asserts that the back injury occurred prior to (Ms Thompson) starting work at 2 pm that day; in particular, that it occurred in the morning when (she) was at the gym.
The result is that by his submissions, Mr Lourey, and hence Ms Thompson, unequivocally accepted that the hearing before the learned arbitrator required proof of the cause of the admitted injury. Here, that involved an issue of where it was suffered. To succeed in her application, Ms Thompson was required to prove that her injury was caused out of or in the course of her employment at the hospital and not in the gym.
Whichever way Ms Thompson's application might possibly have been approached, pursuant to either the work being a 'significant … contributing factor' or the low back radiculopathy 'arising out of or in the course of employment', there was no alternative but to determine the causation of Ms Thompson's admitted injury.
How Ms Thompson's injury occurred was fundamental to the outcome of her application and this is so notwithstanding Mr Lourey's submission that even if Ms Thompson had some prior form of injury, eg from the gym, as set out at [26] above, that would not be relevant, following Hetherington.
However, this submission which underpins Mr Lourey's approach to this appeal misunderstands the principle from Hetherington. Ms Thompson's underlying asymptomatic low back radiculopathy could have become symptomatic at any time, with or without work, as was the case with Hetherington, as set out at [27] above. There was no dispute that Hetherington died at his place of work. The issue there was as also noted at [27] above. Here, the issue was whether the cause of Ms Thompson's condition becoming symptomatic was her physical effort at her place of work, rather than the gym.
The learned arbitrator's reasons for decision under the heading of 'Overview' at [5] correctly referred to the
fundamental and contradictory differences between the cases advanced on behalf of Ms Thompson and the (hospital). In those circumstances, it is necessary to consider the issue of credibility.
The evidence as to causation and Ms Thompson's credibility
Ms Thompson's evidence has been briefly summarised as set out at [24] above. She claimed in evidence that she started work without any injury or impairment. She also said in evidence that her tightness and discomfort from the gym involved her left leg, not her right leg, and therefore, could not be related to her low back pain radiating into her right leg as experienced later in the day at work. This claim had not been made elsewhere. The learned arbitrator's reasons do not refer to it.
The evidence against Ms Thompson, which was accepted by the learned arbitrator, can be shortly summarised as follows:
1.Dr Grace Haynes, medical practitioner, reviewed Ms Thompson when she attended at the Emergency Department at 3.00 am on 27 November 2018. Dr Haynes recorded in her notes and gave evidence at the arbitration that Ms Thompson told her she had pain in her right buttock and right leg whilst using the leg press at the gym. This worsened at work. Dr Haynes provided only a certificate that Ms Thompson was unfit for work; not a first workers' compensation certificate.
2.Mr Francis Staude, physiotherapist, provided a report and gave evidence that Ms Thompson told him she had attended at the gym using the leg press, which had caused her severe right leg pain.
3.Dr H Tan, occupational physician, first reported on 22 February 2019 based upon the history given to him by Ms Thompson consistent with [24.1] above. His report concluded that the onset of her right leg pain had occurred during a work shift and was therefore work caused. Subsequently however, Dr Tan changed his opinion when he was provided with contemporaneous health records, including those of Dr Haynes and Mr Staude referred to above. That change was to the effect that Ms Thompson suffered her lower back injury by reason of her activities at the gym.
4.Non‑workers' compensation medical certificates issued on 27 November, 3 and 11 December 2018 support the conclusion that the issue of any work related injury had not been raised at those times by Ms Thompson.
The learned arbitrator rejected Ms Thompson's evidence that:
1.the gym had been an uneventful workout, such that she was fit and well before going to work;
2.she told Dr Haynes that she did not have any symptoms until two or three hours into her shift at work;
3.she only suffered her injury during the shift and did not report any injury because there was no sudden onset of pain, although she had been healthy prior to her work, such that her present injury was completely related to that occurrence; and
4.an unknown medical practitioner, who was senior to Dr Haynes at the Emergency Department, offered Ms Thompson a workers' compensation certificate as being unfit for work, but she declined.
Mr P Taylor, neurosurgeon, provided a report dated 21 March 2019 in which he recorded that:
… some four months ago during a nursing shift she developed the onset of right‑sided buttock and then leg pain …
This report however, did not detail any mention of Ms Thompson's history of complaint from the gym, such that the learned arbitrator was not prepared to uphold her application based on such report.
It was open to the learned arbitrator to accept the evidence of Dr Haynes, Mr Staude and the final report of Dr Tan and to not accept the evidence of Mr Taylor as proving an injury at work.
In these circumstances, the learned arbitrator did not accept inconsistencies in Ms Thompson's case, notwithstanding her claim that she wrongly self‑diagnosed her own condition as an injury to her piriformis muscle. The learned arbitrator could have only accepted her claim if he accepted her evidence as outlined at [24.1] above. He did not. He found that the contemporaneous records from those health practitioners upon whom Ms Thompson attended contradict her assertion that the injury was work related. There was no cogent reason or plausible explanation as to why Dr Haynes and Mr Staude each recorded the same description as to the onset of right leg pain other than that, as they both stated in evidence, such information was provided by Ms Thompson herself. It would have been remarkable if they both made the same errors in their records. Their notes could only have been made from information provided by Ms Thompson herself. She was therefore less than frank when she gave her evidence.
It was also open to the learned arbitrator to reject Ms Thompson's evidence as being inconsistent with other proved evidence. Save as noted at [45] below, there is nothing in any contemporaneous record to suggest the initial onset of pain at work.
The findings of fact based on credibility do not involve any error of law. Indeed, it could not be argued that the learned arbitrator found any facts wrongly or that he did so upon any doubtful basis. His reasons are logical.
It is true that the learned arbitrator's reasons for decision did not refer to the evidence of the Ward Coordinator. However, her notes prepared three weeks after the event would not have cured any defects from Ms Thompson's evidence because the Coordinator's notes, referred to at [24.2] above and without further medical explanation, are equivocal, being equally consistent with Ms Thompson suffering her injury at the gym and later, struggling at work, and perhaps more so, as the shift progressed and she became more tired. However, the learned arbitrator was only required to canvas in his reasons the evidence he accepted. He was not required to canvas all evidence: s 213 WCIMA.
Further, there was reference to Ms Thompson cleaning her front yard fish pond between the gym and her shift. However, apart from the fact of cleaning itself, nothing is known about what this task entailed and so, cleaning the pond is not probative of anything.
Further, if the application had been approached from the point of view of work being a 'significant … contributing factor' rather than s 5(1)(a) as submitted by Mr Lourey, then the decision would not have been any different. This then would not lead to an error of law in the required sense: BHP Billiton Iron Ore Pty Ltd v Brady at [15] above.
Conclusion
It follows that there can be no valid complaint as to either the legal issue of causation pursued by the learned arbitrator or his determination of this issue by reference to the evidence as outlined above.
Leave to appeal should not be granted on either ground 1 or ground 2 and the appeal should be dismissed.
Other matters
Finally, it should be recorded that Mr Lourey specifically denied any claim under s 5(1)(c) or s 5(1)(d) of the WCIMA and that an application to adjourn the appeal was unequivocally withdrawn at the hearing of the appeal, both at the commencement and conclusion thereof.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze
19 FEBRUARY 2021
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