Threadgate v Roads and Traffic Authority of New South Wales
[2006] NSWWCCPD 233
•15 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Threadgate v Roads and Traffic Authority of New South Wales [2006] NSWWCCPD 233
APPELLANT: Ronald Leslie Threadgate
RESPONDENT: Roads and Traffic Authority of New South Wales
INSURER:Treasury Managed Fund
FILE NUMBER: WCC2887-05
DATE OF ARBITRATOR’S DECISION: 28 July 2005
DATE OF APPEAL DECISION: 15 September 2006
SUBJECT MATTER OF DECISION: Application of sections 9A and 40 of the Workers Compensation Act 1987; sufficiency of reasons for decision.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Stacks
Respondent: Leitch Hasson Dent.
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated
28 July 2005 is revoked and the following orders are substituted:
1.Award in favour of the Applicant (Ronald Threadgate) against the Respondent (Roads and Traffic Authority) pursuant to section 40 as set out hereunder:
(i)From 5 October 2004 to 10 December 2004 - $561.59 per week.
(ii)From 11 December 2004 to 31 March 2005 - $645.10 per week.
(iii)From 1 April 2005 to 17 June 2005 - $655.40 per week.
(iv)From 18 June 2005 to date and continuing - $629.64 per week.
The Respondent is to have credit in respect of weekly payments made to the Applicant.
2.The Respondent is to pay the Applicant’s section 60 expenses upon production of accounts and/or receipts.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.
2.The Respondent is to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 24 August 2005 Ronald Leslie Threadgate (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 July 2005.
The Respondent to the Appeal is the Roads and Traffic Authority of New South Wales (‘the Respondent’).
The Appellant commenced employment with the Respondent in June of 1994 as a Road Worker. An Application to Resolve a Dispute (‘the Application’) contained a description of injury in the following terms:
“Nature and conditions of employment over approximately a 6 week period up to and including 23 June 2004 including repetitive heavy lifting and bending in process of removing and replacing guardrails and posts.”
The Application described the injury as being - “Back affecting both legs and sex organs.” The Application sought orders with respect to entitlement to weekly benefits and medical expenses.
The Appellant, in the course of his employment with the Respondent, had suffered two injuries to his back earlier than the occasion alleged in the Application. Those injuries occurred on 30 May 2002 and 14 November 2003. The Appellant on those occasions claimed and was paid workers compensation benefits with respect to his incapacity and need for treatment. The Appellant had returned to full duties prior to the alleged occurrence of the injury which was the subject of the Application. Those earlier injuries were not relied upon by the Appellant as being causally related to the incapacity alleged in his Application.
The Appellant, following the alleged injury of June 2004, claimed and was, at first, paid compensation benefits by his employer which payments continued until receipt by the Appellant of correspondence dated 26 November 2004 from Treasury Managed Fund, the Respondent’s Insurer, to the effect that payments in respect of his claim being medical, hospital and associated expenses would cease as from 26 November 2004 and that weekly compensation benefits would cease from 10 December 2004. It is to be noted that that correspondence cited the date of the injury as being “14 November 2003”. That error was noted by the Appellant’s Solicitors in correspondence addressed from them to the Insurer dated 2 December 2004.
The Application was heard by an Arbitrator on 29 June 2005 and a Certificate of Determination together with Statement of Reasons for the Decision issued on 28 July 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 July 2005 records the Arbitrator’s orders as follows:
“1.An Award for the Respondent with respect to the Applicant’s claim for weekly payments of compensation.
2.That the Respondent pay the Applicant’s expenses under s60 of the Workers Compensation Act 1987 arising as a result of the injuries on 30 May 2002 and 14 November 2003 on production of accounts or receipts and up to 30 June 2004. An award for the Respondent thereafter.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
As noted above, the Arbitrator’s Reasons for the Determination (‘Reasons’) were attached to the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in the manner in which he determined the question of the Appellant’s incapacity resulting from the injury as alleged in the Application.
(ii)Whether the Arbitrator erred in the manner in which the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) were applied.
(iii)Whether the Arbitrator erred in determining that the Appellant “did not receive an injury out of or in the course of his employment with the Roads and Traffic Authority as a result of the nature and conditions of his work in the 6 weeks up to and including 23 June 2004” in that such conclusion was not supported by the evidence.
(iv)Whether the Arbitrator erred in failing to address the totality of the evidence.
(v)Whether the Arbitrator erred in failing to give adequate reasons for his findings of fact and in the application of relevant law.
The issues enumerated above are more fully set forth in the Appellant’s “Submissions in Support of Review” which were accompanied by a second document headed “Applicant’s Submissions”.
PRELIMINARY
The Respondent to the appeal failed at first to file a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ within the time prescribed by the rules. Following the issue of a Direction on 4 August 2006 the Respondent has sought an extension of time within which to file the subject Notice.
The Respondent’s failure to file and serve the Notice was stated to be “due to an administrative error” and submissions were made that the extension of time sought would not occasion any prejudice to the Appellant.
The Appellant was afforded an opportunity to respond to the Respondent’s application for extension of time however has declined to do so. In all the circumstances I am satisfied not only that there is no prejudice to the Appellant in granting an extension of time but further that failure to grant such extension would, as submitted by the Respondent, occasion significant prejudice to the Respondent to the appeal. In the circumstances I order that the Respondent be granted an extension of time to 7 August 2006 and note that the Respondent’s Notice of Opposition was filed with the Commission on that day.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant under heading “C” of his Submissions states that by reason of the complexity of issues of fact and law the appeal should not be conducted “on the papers” but rather at a hearing.
The Respondent submits that both the leave to make the appeal and the appeal itself may be decided solely on the basis of the written Application and written Notice of Opposition.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20% of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE AND SUBMISSIONS
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction Number 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“-a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Appellant in his Submissions has made an application with respect to the admission of “fresh evidence” that being a report of Dr Patrick Choi dated 20 August 2005. In making such application the Appellant has complied with the procedural requirements outlined above. The Appellant’s submissions in support of the admission of this fresh evidence appearing in paragraphs 1 to 3 (inclusive) under heading “E” of his Submissions are noted. It is to be noted that at the hearing before the Arbitrator the Appellant was granted leave to adduce late documents which documents included a report of Dr Choi dated 11 January 2005 addressed to the Respondent. The matters addressed by Dr Choi in the document, which is the subject of the application for leave, address the issues raised by section 9A of the 1987 Act. That matter was not addressed in the earlier report referred to compiled by Dr Choi.
I am not satisfied that the new evidence could not reasonably have been obtained by the Appellant and tendered in the proceedings before the Arbitrator nor am I satisfied that failure to allow the new evidence would cause a substantial injustice in the circumstances of this matter. As pointed out in the Appellant’s Submissions, there exists evidence addressing the issues raised by section 9A of the 1987 Act and, in the context of this appeal, I am not satisfied that the Arbitrator’s apparent rejection of that evidence is sufficient ground to permit a report of Dr Choi supplementing his opinions as earlier expressed in the evidence.
Leave is refused with respect to the application to admit the report of Dr Choi dated 20 August 2005.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator comprised that material which was enumerated at paragraph 12 of his Reasons. It is to be noted that the medical report of Dr P Choi dated 11 January 2005 was adduced by the Appellant and not, as noted by the Arbitrator, the Respondent.
It was noted at paragraph 11 of the Arbitrator’s Reasons that the unsworn evidence of the Appellant, Ronald Leslie Threadgate, was given at the hearing. I note that there is available on the Commission file a transcript of proceedings before the Arbitrator which transcript includes evidence given by the Appellant.
With regard to the documentary evidence as noted by the Arbitrator I make the following observations:
(i)The “Return to Work Plan” noted as being adduced by the Respondent was in fact adduced by the Appellant (see transcript page 2 at lines 25 – 30).
(ii)Whilst it is noted by the Arbitrator (paragraph 12 Reasons) that a report of Dr Arnold dated 14 March 2005 was adduced by the Respondent, that report is one issued by HealthQuest signed on behalf of Dr Casolin, but which assessment was conducted by Dr. Arnold. The report was adduced by the Appellant not, as stated by the Arbitrator, the Respondent. Such report is noted by the Arbitrator at paragraph 27 of his Reasons.
(iii)It is noted by the Arbitrator that a Statement of the Appellant dated 28 January 2005 [sic] had been adduced by the Appellant. I note that the original Application included two Statements by the Appellant each dated 28 January 2004.
(iv)The Statements by the Appellant, which were before the Arbitrator, outlined his industrial history, the history of earlier injuries as noted above, the circumstances of the injury, which was the subject of the Application and detail of his subsequent treatment and attempts to return to work. Whilst there does not appear to be any direct evidence with respect to termination of the Appellant’s employment with the Respondent it appears that it was common ground that wage material available to the parties indicated that the Appellant was last paid wages by the Respondent on 17 June 2005 (see transcript page 6 at lines 30 – 40).
The medical material adduced on behalf of the Appellant included a report from Dr Murray Hyde Page, Orthopaedic Surgeon dated 23 December 2003, which addressed the antecedent history of injury referred to above. The balance of the medical material addresses the history, diagnosis and treatment of the Appellant post dating the injury alleged to have occurred in the weeks preceding 23 June 2004. Dr White, Orthopaedic Surgeon notes a history of “pain in his lower back extending into his legs for some time”. Dr John G Christie, Neurosurgeon in his report of 8 September 2004 noted a complaint of pain which “extends down from the upper lumbar region, through his buttocks and into his legs”. That practitioner considered that an MRI examination of his lower thoracic and lumbar spines demonstrated “a fairly significant disc protrusion at the T10/11 level on the right which does look to be compressing the spinal cord.” Dr Christie advised surgery and noted that the Appellant had reservations about such a procedure.
A report of Dr Marc Russo, Consultant in Pain Medicine dated 7 February 2005 contained a review of the MRI scan results and that practitioner under heading ‘Diagnosis’ stated “symptomatic sequestrated disc at T10/11 which has occurred after lifting a heavy load at work”. That practitioner expressly excluded a diagnosis of Scheuermann’s disease.
Dr Patrick Choi, General Practitioner, in his report dated 11 January 2005, expressed the view that the Appellant had “suffered a significant back injury and has a prolapsed disc at T10/11 causing cord compression.” That practitioner had earlier issued WorkCover medical certificates dating from 20 August 2004 expressing a similar diagnosis as contained in the report and expressing the view that the Appellant’s employment was a substantial contributing factor to the injury.
A number of medical certificates, some of which were not relevant to the subject injury, were adduced by the Appellant and I note that those certificates issued by Dr Fairleigh which issued on and after 25 June 2004 make reference to an injury having occurred on 20 April 2004, 1 July 2004 or alternatively omits reference to any date of injury. It is stated by the Appellant in his first Statement that he elected to change treating Doctors in part by reason of Dr Fairleigh’s apparent inclusion of incorrect dates on certificates (see paragraph 10 of Statement of the Appellant).
The unsworn evidence of the Appellant given before the Arbitrator addressed the subject of the site of pain experienced by the Appellant following the June 2004 injury. The Appellant stated (at transcript page 12 lines 27 – 34):
“APPLICANT: Well, all these doctors’ reports, every time I’ve gone to see these different doctors I’ve always told them where the pain started – up in here. Right? And I’ve told them it travels down by [sic] back across and down my legs. I’ve told every doctor I’ve seen where the pain has started from, up in here, even before I had the MRI.”
Having regard to the Respondent’s reference to the significance of the Appellant’s complaints as to the site of pain at different times it is regrettable that no notation was made at the hearing as to what in particular was demonstrated by the Appellant immediately after the evidence above quoted.
The Respondent in its Reply to the Application relied upon the report of Dr Anthony Smith, Orthopaedic Surgeon as expressed in his report of 22 September 2004 (a report which also comprised part of the evidence relied upon by the Appellant). Dr Smith expressed the view that the Appellant suffered a degenerative process in his lumbar spine and that the MRI demonstrated an “anomaly consequent to Scheuermann’s disease that would long predate the year 2002 for which he has seen Dr Christie …”. The history taken by Dr Smith included detail of low back problems following work injuries in June 2003, late 2003 and then again in July of 2004 (pain commencing on or around 25.6.04). Dr Smith expressed the view that the Appellant was at the date of his examination fit to work which view was qualified by the statement that he may “have problems with his job if he is required to drive rollers or to operate vibrating machinery that bounces up and down”. Dr Smith expressed the view that:
“His employment is not a substantial contributing factor to his lumbar degenerative disease from L3 down and also it is not a substantial contributing factor to the anomaly on the MRI, which is consequent to Scheuermann’s disease and long predates the onset of his symptoms.”
The Appellant’s Submissions essentially challenge the reasoning process of the Arbitrator as disclosed in his Reasons and in particular with respect to his conclusions as to there being no entitlement to weekly benefits notwithstanding a finding of partial incapacity as stated in paragraph 35 of his Reasons.
The Appellant further submits that the Arbitrator erred with respect to his application of the provisions of section 9A of the 1987 Act and further that the Arbitrator’s conclusion with respect to the issue of “injury” was against the evidence and the weight of the evidence.
The Appellant proceeds in his Submissions to address the contents of the medical material and it appears that the thrust of the Appellant’s argument is that the Arbitrator’s conclusions of fact were made without reference to all the relevant evidence and were against the totality of the evidence.
The Appellant, as noted above, also relies on what may be described as supplementary submissions which address the Appellant’s complaint that the Arbitrator failed to provide sufficient or adequate reasons for his conclusions of fact. Reference is also made in those submissions to the provisions of sections 4 and 18 of the 1987 Act.
The Respondent in its submissions seeks to support the Arbitrator’s conclusions as characterised as findings of fact each of which were open to the Arbitrator on the evidence. The Respondent proceeds to address the evidence of Dr Fairleigh and Dr Christie arguing that such evidence is of limited probative value or equivocal with respect to the issue of injury.
The Respondent (at paragraphs 6 and 7 of its Submissions) addresses evidence as to the site of the Appellant’s recorded symptoms in his back. The Respondent emphasises what is said to be a shift in complaints from the low lumbar level to the thoracic spine. The thrust of the argument is that the Appellant’s initial symptoms at the lumbosacral level corresponded to the site at which he suffered degenerative changes in the spine which “may have become symptomatic temporarily” (submission paragraph 7(a)). The submission proceeds to assert that the Appellant’s complaints “now related to this [sic] thoracic spine and that these were now complaints made well after 23 June 2004 and only after some finding of pathology at T1/11 [sic] in an MRI scan of 6 August 2004” (submission paragraph 7(b)). That submission concludes by stating that the pathology noted on the investigations in the Appellant’s thoracic spine is unrelated to any alleged injury to the lower back of 23 June 2004.
The Respondent proceeds to argue in its Submissions that the Arbitrator “was at liberty to prefer the evidence of Dr Smith, an Orthopaedic Surgeon, in favour of the opinion of Dr Russo”.
With respect to the Appellant’s argument (Appellant’s submission 12) concerning the form of notice received by the Appellant from the Insurer, the Respondent argues that that issue was not raised at the hearing and, by inference, cannot be relied upon as a ground in support of review in this appeal.
The Respondent addresses the Appellant’s “second submissions” under such heading and makes reference again to evidence as to the site of symptoms in the Appellant’s back. It is stated that “the Applicant physically demonstrated the site of pain to the Arbitrator”. The Respondent proceeds to note that the Arbitrator made no finding of “disease” in terms of the 1987 Act and further that the injuries in 2002 and 2003 “were not the subject of the claim”.
The Respondent submits that the Arbitrator correctly dealt with the provisions of the 1987 Act which were raised on behalf of the Appellant (namely sections 4(b)(ii), 18(1) and 9A). The balance of these submissions seek to support the Arbitrator’s conclusions, in particular with respect to the Arbitrator’s view that the Appellant “was only fit for lighter duties”, as being consistent with his finding that the Appellant suffered degenerative changes at the lumbosacral level which have been temporarily aggravated and subsequently “ recovered”. (submission 9).
DISCUSSION AND FINDINGS
Section 352(5) of the 1998 Act provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
Such a proceeding is not an “appeal” in the strict sense nor is it a hearing de novo. As stated by Dr Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6:
“The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘… some legal factual or discretionary error’ [Allesch v Maunz [2000] HCA 40 (3 August 2000)].”
The primary issue for determination by the Arbitrator was the question as to whether on the evidence, the Appellant had established that he sustained injury as alleged in the Application namely injury resulting from “nature and conditions of employment over approximately a 6 week period up to and including 23 June 2004 including repetitive heavy lifting and bending in the process of removing and replacing guardrails and posts” (see Part 3 of Application). The Arbitrator (at paragraph 32 of his Reasons) concluded with respect to this issue:
“32.There is no compelling medical evidence from the Applicant that supports a view that the Applicant suffered an injury at work on 23 June 2004.”
It is the Appellant’s complaint that the Arbitrator’s conclusion stated at paragraph 32 of his Reasons is not supported by any adequate or sufficient reasons. It becomes necessary to examine the reasons as expressed by the Arbitrator to determine whether he has discharged his obligations. As was stated by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 - “[r]easons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”. [This line of reasoning was cited by Santow JA in Haris v Bulldogs Rugby League Club [2006] NSWCA 53 17 March 2006 unreported.]
The Arbitrator’s conclusion stated at paragraph 32 of his Reasons is preceded by a summary of what is described as “the injury and nature of the claim” (paragraphs 13 to 17 of Reasons). That summary includes reference to the history of injury sustained by the Appellant in 2002 and 2003 as well as the injury the subject of the Application namely “over a period of six weeks up to 23 June 2004”. Contrary to the express terms of the Application before him and in particular the Statement of the Appellant’s representative in the course of submissions that the injury of June of 2004 was “the most recent injury and the one we’re dealing with today” (transcript page 11 lines 35 to 38), the Arbitrator has noted (at paragraph 15 of Reasons):
“15.The Applicant says that he has suffered the injuries as a result of the nature and conditions of his work as a Roadworker. In his statement dated 28 January 2005 he refers variously to the activities of shovelling hot mix bitumen on 30 May 2002, driving a roller over a 150mm drop on 14 November 2003, and working on the replacement of Armco railings over a period of six weeks up to 23 June 2004 as contributing to the injuries he has suffered.”
The Arbitrator (at paragraph 31 of Reasons) stated:
“31.The Applicant suffered a musculo-ligamentous strain at work in 2002, and then again on 9 November 2003, as diagnosed by Dr Murray Hyde-Page. This view is difficult to counter on any history as provided by the Applicant to the medical practitioners, and it seems logical to assume that at least these incidents rendered the Applicant’s underlying degenerative process symptomatic. Work was a substantial contributing factor to those aggravations. Those injuries however were not the substance of this claim, however in submissions at the hearing I gather that the nature and conditions complained of are over a longer period than the six weeks prior to 23 June 2004”.
The balance of the reasons stated by the Arbitrator prior to reaching his conclusion at paragraph 32 consist of a brief summary of the medical evidence adduced by the parties and a summary of submissions made on behalf of each party. Nowhere in those reasons is it stated explicitly by the Arbitrator that the factual issue raised on the evidence concerned a determination as to whether the abnormality noted by Dr Walker following the MRI study on 6 August 2004 was a result of work injury as alleged in the Application. Dr Walker’s comment was:
“COMMENT
Dominant abnormality at T10/11 where there is a fairly large right paramedian herniation which causes compression of the cord.”
The Arbitrator makes no reference to the evidence of Dr Walker other than to note in paragraph 12 that that report had been adduced on behalf of the Appellant.
I am of the opinion that the Arbitrator, in stating the issues as noted above at paragraph 15 of his Reasons, has fallen into error in that it constitutes a misstatement of the Appellant’s case. That misstatement is, to a degree, compounded by the matters addressed by the Arbitrator in paragraph 31 of his Reasons where attention is given to the relevance of injuries which were not the subject of the claim which the Arbitrator, by inference, deemed relevant because of his apparent perception that something other than injury on and six weeks prior to 23 June 2004 had been pressed by the Appellant at the hearing.
I am of the view that the Appellant’s submission at paragraph 8 (page 2 of Submissions) has substance in that the Arbitrator’s conclusion stated at paragraph 32 of his Reasons was made without reference to any of the factual matters which were not in dispute between the parties with respect to the Appellant’s inability to work following 23 June 2004 nor was there any reference to the distinction between medical opinion when one compares the views of Dr Hyde Page which predated the alleged injury and the views of other Practitioners in particular that of Dr Christie. Failure on the part of the Arbitrator to direct attention to these matters would alone, in my view, support an argument that the obligation to state sufficient reasons for relevant findings had not been discharged by the Arbitrator.
Both parties, at the hearing, attached significance in their submissions to the question of the site of the Appellant’s complaints post June 2004. It is my view that, given the moderately complex history of injury with which the Arbitrator was dealing, proper attention to the nature of the Appellant’s complaints following the alleged injury was required of the Arbitrator in reaching a conclusion as to whether such injury was proven. This the Arbitrator has not addressed.
It is clear that the Arbitrator in adjudicating the evidence before him preferred the views as expressed by Dr Smith. The Arbitrator characterised that opinion as “a careful and confident analysis”. The Arbitrator states that he was persuaded by the evidence of Dr Smith that the “Applicant is suffering from a degenerative disease to his lumbar back”. The Arbitrator proceeded to discount, by inference, the opinion of Dr Hyde Page upon the basis that that Practitioner did not have “the benefit of reviewing a CT scan as Dr Smith did” (paragraph 33 of Reasons). That reasoning by the Arbitrator in my view demonstrates error given that Dr Hyde Page’s expression of opinion pre-dated not only the CT scan referred to but the injury which was the subject of the Application. In contrasting the views of those Practitioners the Arbitrator embarked upon an exercise which in no manner could have resolved the real question which was before him for determination.
With respect to the Appellant’s argument as to the Arbitrator’s erroneous application of section 9A of the 1987 Act I note that at paragraph 37 of his Reasons the Arbitrator noted:
“37.I find the Applicant’s employment was not the substantial contributing factor to any injury that may have occurred on 23 June 2004.”
That statement is flawed in two respects. Firstly the Arbitrator has substituted the definite article for the indefinite article as a prefix to the term “substantial contributing factor” and the Arbitrator has failed to address the Appellant’s allegation of injury resulting from the very demanding physical work performed in the six weeks prior to 23 June 2004 as outlined in his Statement.
Having regard to the matters raised above I am of the view that the Arbitrator has erred and that such errors require review of his decision. In reaching this conclusion I have considered the Respondent’s submissions as to the arguments addressing the Arbitrator’s findings of fact. It may be accepted that a decision maker is required to accept or reject material evidence before the Tribunal however there remains a need to state sufficient reasons for such choice.
With respect to the Respondent’s argument concerning the application of section 9A of the 1987 Act it cannot, in my view, be said that a misstatement of a legislative provision is “irrelevant” as asserted by the Respondent merely because a finding of fact obviates the operation of the section.
The further disposition of this appeal requires a review of the evidence and a determination as to whether the Arbitrator’s stated conclusion with respect to the question of “injury” was correct.
LAY EVIDENCE
The longer Statement of the Appellant (at paragraph 8) records in great detail the physical demands of his work which occurred in the six weeks prior to 23 June 2004. The onset of symptoms and the need for treatment is also detailed in that Statement. That the Appellant became incapacitated and was compensated by his Employer at that time was not in dispute and indeed his history as to the onset of his symptoms was not the subject of cross-examination. His complaint as recorded in the Statement was of pain in “my back” and that it was “constantly aching”. The Appellant stated that as at 23 June 2004 he had pain in his left leg and on the following morning had severe pain in his right leg.
As noted above, the Appellant gave unsworn evidence before the Arbitrator however when demonstrating the site of pain there was no record, by agreement or otherwise, as to the site of his back discomfort which was the subject of his evidence.
MEDICAL EVIDENCE
The first medical material available following the alleged injury in June 2004 is a certificate of Dr Fairleigh dated 25/6/04. The date of the injury, as noted in the Respondent’s Submissions, stated 20 April 2004 and the diagnosis was “injury to his low back”. On 2 July 2004 a certificate of Dr Nicholson (of the same practice as Dr Fairleigh) failed to note a date of injury and noted diagnosis as being “back pain”. A certificate of Dr Fairleigh issued on 9 August 2004 had a notation of the date of injury being 1 July 2004 and the diagnosis “lumbar back injury”. There were subsequent certificates in evidence before the Arbitrator including one of Dr Fairleigh’s which was apparently issued in mid August 2004 which again makes reference to injury being 1 July 2004 and a diagnosis of “low back injury disc abnormality on MRI”. There were seven certificates issued by Dr Choi before the Arbitrator dated between 20 August 2004 and 30 November 2004. Those certificates commence with a description of injury being “gradual lower back pain while lifting guardrails in June” and a diagnosis of “back pain, T10 disc herniation”.
Having regard to the inconsistent notation of dates of injury and the lack of completeness of, in particular, the early certificates from Dr Fairleigh’s practice I accept the Respondent’s argument that not a great deal of weight can be attached to those certificates except that it is plain that the Appellant was considered incapacitated as from 25 June 2004. The certificates are of little weight in determining matters of detail in particular history of injury, relevant date of injury and precise symptoms and complaints made by the Appellant at the time of the issue of those certificates.
A report of Dr Bruce White dated 27 July 2004 records that the Appellant complained of “pain in his lower back extending into his legs for some time …”.
In his report of 6 August 2004 Dr Walker, who conducted the MRI study, had clinical history recorded as “multiple back problems. Workers compensation.”. Dr Walker’s comment as to the finding at T10/11 is noted above.
Dr Ngu, who conducted a CT scan of the Appellant’s lumbar spine recorded in his report of 6 July 2004 a history of “persistent back pain”.
Dr Christie in his report of 8 September 2004 noted the earlier history of back and leg pain and recorded:
“In June this year his most recent episode started and again he had pain in the right leg. Fairly quickly on this occasion however, the pain spread to involve the left leg and he has had continuing pain radiating down both legs to the feet as well as pain in both the upper and lower lumbar regions. He feels that the pain extends down from the upper lumbar region, through his buttocks and into his legs.”
That Practitioner had the advantage of the findings of the MRI study and, significantly in my view states:
“We often do see small thoracic disc protrusions which I think are an incidental finding but I would have to say that I think that this lesion probably is significant and certainly on the MRI it does seem to be causing compression of his spinal cord and may well be relevant to his symptoms.”
The contents of the report of Dr Marc Russo dated 7 February 2005 have been referred to above at paragraph 32 of this Determination. That report was addressed to Dr Choi and it is, in my view, significant that the report opens with the following statement:
“Thankyou for asking me to see Ronald as regarding his thoracic pain.”
The history as recorded by Dr Russo is as follows:
“On 23/6/04 he was moving and stacking guardrails that weighed approximately 43 kg each when he experienced thoracic pain at approximately the T10 level and he has gone on to have persistent thoracic back pain that waxes and wanes and when he does have his back pain he also gets bilateral sciatica that only starts in the upper thighs, not the buttocks, and radiates down into the lower limbs. It is associated with paraesthesia in the same area. He is still working but on restricted duties, ie no heavy lifting.”
Dr Russo in the aforementioned report expressly addresses the subject of Scheuermann’s disease. Dr Russo has addressed this issue as stated in his report “for your reference and for the insurance company …”. It may be inferred that Dr Russo was aware of Dr Smith’s view as to there being evidence of old Scheuermann’s disease demonstrated on the radiological studies of the Appellant’s spine. As noted above Dr Russo expressly excluded such a diagnosis. Dr Russo explains his views in respect of that matter by reference to “Sorenson’s criteria” which appears at page 1 of his report. Dr Russo’s diagnosis as at February 2005 was:
“Symptomatic sequestrated disc at T10/11 which has occurred after lifting a heavy load at work.”
Both the Appellant and Respondent relied on the contents of Dr Smith’s report dated 22 September 2004 which has been summarised in paragraph 36 of this Determination. I note that in the “Introduction” Dr Smith, when referring to the report of Dr Hyde Page erroneously states that “no leg symptoms are described with any of the incidents”. Those incidents were the early history of back pain suffered in the course of work and it is to be seen that under the heading “Current Status” Dr Hyde Page in his report (at page 2) recorded:
“He’s had some leg pain shooting down towards the knees lasting a few days. This is not of major concern. He’s found the back pain is aggravated by sexual activity.”
It appears that Dr Smith saw fit to read a section of the history recorded by Dr Hyde Page to the Appellant and Dr Smith has noted:
“Then he suggested that the leg symptoms only began with the most recent episode in June or July 2004.”
It must be observed that the failure of Dr Smith to draw the Appellant’s attention to the complete history as recorded by Dr Hyde Page would very likely, in my view, serve only to confuse the Appellant.
At page 3 of his report Dr Smith provides a detailed narration of the findings of the CT scan dated 6 August 2004. There is little doubt that such evidence supports a conclusion that the Appellant at all relevant times has carried a degree of lumbar degenerative disease.
Dr Smith makes reference to an MRI, dated 6 August 2004 (that is Dr Walker’s study). It is unclear from Dr Smith’s report as to whether he has paraphrased the observations and comments of Dr Walker or if Dr Smith is stating his own interpretation of the study. Significantly Dr Smith makes no reference, as does Dr Walker, to there being at T10/11:
“A fairly large right paramedian herniation which causes compression of the cord.”
Dr Smith’s observation in his report is:
“There is a very old signal loss and height loss at T10/11 with what appears to be a kyphotic anomaly there and there is a posterior bulge somewhat to the right.”
Having regard to the totality of the evidence I am of the view that the Arbitrator was in error in concluding, as he did at paragraph 32 of his Reasons that there was “no compelling medical evidence from the Applicant that supports a view that the Applicant suffered an injury at work on 23 June 2004.” I have reached that view following an evaluation of the lay and medical evidence and have taken particular note of the Appellant’s description both in his Statement and to the various Practitioners of the very onerous duties performed by him prior to 23 June 2004. Insofar as the views of Dr Smith conflict with opinions expressed by Practitioners whose reports were adduced by the Appellant, I prefer those views as to diagnosis and causation as expressed by the Appellant’s medical witnesses. I have concluded that the probability is that, following the arduous work earlier referred to in June of 2004, the Appellant manifested back and leg symptoms which, having regard to the diagnostic material adduced at the hearing, led not only to an aggravation of his low lumbar degenerative disease but caused also a disc lesion at the level of T10/11. I accept the reasoned view of Dr Russo that the abnormality at that level of the Appellant’s spine was not indicative of Scheuermann’s disease and I, in particular, accept the view as expressed by Dr Christie that the lesion at that level “may well be relevant to his symptoms”.
In reaching the conclusions which I have outlined above I have taken into account the submissions of the Respondent in particular those that relate to an apparent shift in focus of the Appellant’s complaints as to the site of his pain. Having regard to all the evidence including the Appellant’s assertions, insofar as they assist, before the Arbitrator at the hearing, those complaints, over the relevant period, when analysed represent in all probability the progress and evolution of perceptible symptoms as experienced by him and described from time to time to those examining him.
By reason of the matters summarised above the Arbitrator’s orders in the Certificate of Determination dated 28 July 2005 require revocation and substitution with new decisions. The NSW Court of Appeal in the matter of Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 (unreported) has expressed the view that should an appeal be upheld it is preferable, if possible, the Presidential Member finally determine the matter (per Santow JA at paras 28 and 29).
Having regard to the circumstances of this case I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal be corrected without the need to remit the matter for further consideration by an Arbitrator.
At the hearing, the Appellant was permitted to amend his Application to provide for the commencement of his claim for weekly payments to date from 5 October 2004. It was stated (at page 5 of the transcript) that the claim from that date was brought pursuant to section 40 of the 1987 Act up until the date of termination by the Respondent of the Appellant’s employment. As noted above there is no direct evidence as to that date however it appears common ground between the parties that the Appellant was paid wages up to and including 17 June 2005. It was stated by the Appellant’s representative at the hearing that there was a claim pursuant to section 38 of the 1987 Act postdating the termination and expiring after a period of 26 weeks.
The only evidence with respect to economic matters (wage rates, award rates and details of compensation payments) are contained in the undated Wages Schedule tendered by consent on behalf of the Appellant.
I confirm my conclusion that the Appellant suffered injury to his back in the course of his employment with the Respondent as alleged in the Application during the six weeks prior to and including 23 June 2004. As a result of that injury the Appellant suffered and continues to suffer incapacity for pre-injury employment and has, up until 5 October 2004, received his entitlement to weekly benefits in respect of such incapacity. I note that following 5 October 2004 and up until 10 December 2004 the Appellant received certain workers compensation weekly benefits which he alleges fell short of his entitlement.
I further conclude that, having regard to the totality of the medical evidence the Appellant has been partially incapacitated for his pre-injury employment since 5 October 2004 to date.
I find that at all relevant times the Appellant had dependent upon him his wife and three children.
Whilst the Appellant relies upon the provisions of section 38 of the 1987 Act as outlined above for a period postdating his termination of employment I am not satisfied that the requirements of that section have been met in that there is no probative evidence of compliance with those requirements of the 1987 Act.
Having regard to my determination that the Appellant suffers partial incapacity it is necessary for reference to be made to the principles relevant to quantification of entitlement as outlined in the decision of the NSW Court of Appeal of Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’). Step 1 as outlined in Mitchell requires a determination of the weekly amount the Worker would probably have been earning if uninjured (section 40(2)(a)). Having regard to the contents of the Appellant’s Wages Schedule I determine that such sum from 5 October 2004 to date is $1,129.64.
Step 2 as described by Mitchell requires a determination of the average weekly amount that the Worker is earning or would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). The Appellant’s actual earnings are detailed in the Wages Schedule aforesaid and I set out hereunder the figures particularised therein:
Period Actual Earnings 5/10/04 – 10/12/04 $568.05 11/12/04 – 17/6/05 $253.65 18/6/05 to date Nil
The Act requires a determination in accordance with Step 2 of Mitchell of the Appellant’s ability to earn from 18 June 2005 to date. Having regard to the Appellant’s demonstrated ability to earn in the past and taking into account the views of the Medical Practitioners whose evidence is before the Commission I conclude that the Appellant, since 18 June 2005, to date has been able to earn $500 per week.
Step 3 as prescribed by Mitchell requires a determination of the arithmetic difference between the figures determined in Steps 1 and 2. I set out that difference in the table hereunder:
Period Difference 5/10/04 – 10/12/04 $561.59 11/12/04 – 17/6/05 $875.99 18/6/05 to date $629.64
It may be seen that the figures determined in accordance with Step 3 as prescribed by Mitchell fluctuate over the period (that being the result of subtracting the figure derived from Step 2 from the figure derived from Step 1 – section 40(2)). I set out hereunder a table representing that fluctuating difference (Step 3 Mitchell) and the relevant maximum statutory entitlement in respect of a Worker who has a dependant wife and three dependant children:
Period Difference Maximum Statutory Entitlement
5/10/04 – 10/12/04 $561.59 $645.10 11/12/04 – 31/3/05 $875.99 $645.10 1/4/05 – 17/6/05 $875.99 $655.40 18/6/05 – 30/9/05 $629.64 $655.40 1/10/05 – 31/3/06 $629.64 $668.80 1/4/06 to date $629.64 $682.00
The Appellant’s prima facie entitlement to weekly benefits is the arithmetic difference set out above (subject to statutory maximums as prescribed by the 1987 Act). However, as stated in Mitchell, it is necessary to address the provisions of section 40(1) of that Act. That step requires a determination as to whether and to what extent the figure calculated in accordance with Step 3 bears “such relation to the amount of that reduction as may appear proper in the circumstances of the case”. Having regard to all the circumstances of the case and having regard to the submissions as put before both the Arbitrator and on the appeal, I determine that the difference as calculated is a proper basis upon which to determine the Appellant’s entitlement under section 40 and that such sum (again subject to statutory maximums as prescribed) is proper in the circumstances of the case.
DECISION
Having regard to my determination with respect to the issue as to injury and the findings with respect to the requirements of section 40 as set out above, I revoke the determination of the Arbitrator dated 28 July 2005 and substitute the following orders:
1.Award in favour of the Applicant (Ronald Threadgate) against the Respondent (Roads and Traffic Authority) pursuant to section 40 as set out hereunder:
(i) From 5 October 2004 to 10 December 2004 - $561.59 per week.
(ii) From 11 December 2004 to 31 March 2005 - $645.10 per week.
(iii) From 1 April 2005 to 17 June 2005 - $655.40 per week.
(iv) From 18 June 2005 to date and continuing - $629.64 per week.
The Respondent is to have credit in respect of weekly payments made to the Applicant.
2.The Respondent is to pay the Applicant’s section 60 expenses upon production of accounts and/or receipts.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Kevin O’Grady
Acting Deputy President 15 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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