Toll Pty Limited v Jensen
[2006] NSWWCCPD 298
•8 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Toll Pty Limited v Jensen [2006] NSWWCCPD 298
APPELLANT: Toll Pty Limited
RESPONDENT: Christian Arthur Jensen
INSURER:Toll NSW
FILE NUMBER: WCC 10611-05
DATE OF ARBITRATOR’S DECISION: 11 November 2005
DATE OF APPEAL DECISION: 8 November 2006
SUBJECT MATTER OF DECISION: Section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Anthony Scarcella Lawyer
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 11 November 2005 is confirmed.
2. Toll Pty Limited to pay Christian Arthur Jensen’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 25 November 2005 Toll Pty Limited (‘Toll’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 November 2005.
The Respondent to the Appeal is Christian Arthur Jensen (‘Mr Jensen’) who was born on 30 July 1968 and is 38 years of age. He is married and his wife and four children are dependent on him.
After completing Year 11 at school, Mr Jensen joined the army where he became a truck driver until he was discharged in July 1989. Thereafter he worked mainly as a truck driver and commenced employment with Toll in 2002 as a petrol tanker driver.
On 3 December 2004 Mr Jensen injured his right knee whilst climbing out of the cabin of his truck at a Shell Service Station. He finished work early and attended the Emergency Department of the Westmead Hospital. He remained off work, except for a period of 3 or 4 weeks of light duties, until 21 March 2005 when he returned to normal duties with Toll.
Compensation was paid on a provisional basis, however liability was declined on 31 January 2005. Mr Jensen commenced proceedings in the Commission on 4 July 2005 and an arbitration hearing took place on 12 October 2005 with a second day on 9 November 2005 when an ex tempore decision was handed down. Toll have appealed from the decision of the Arbitrator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 November 2005 records the Arbitrator’s orders as follows:
“1.There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation pursuant to s.36 of the Workers Compensation Act 1987 for the period from 4/12/2004 to 20/3/2004 [sic 2005]. The Respondent is to reinstate the Applicant’s holiday and sick leave entitlements used during this period.
2.There is an award for the Applicant, in relation to the Applicant’s claim for medical costs incurred to date, pursuant to s.60 of the Workers Compensation Act 1987.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator erred:
·in finding that Mr Jensen was injured in the course of his employment;
·in finding that employment was a substantial contributing factor to the injury and failing to provide adequate reasons as to this finding;
·in failing to have any proper regard to the clinical notes of Dr Malouf and failing to give any or any adequate reasons for determining the matter against the weight of this evidence;
·in preferring the evidence of Dr Fox to Dr Hughes; and
·not addressing the issue of Mr Jensen’s credit.
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.”
Toll submits that the matter cannot be dealt with on the papers and requires an oral hearing because the matter involves complex issues and Toll has not been able to finalise its written submissions because the transcript of the proceedings and the decision have not been provided.
As I stated above the Arbitrator gave an ex tempore decision and this was recorded. A transcript of the ex tempore decision and the proceedings at the arbitration hearing was provided to the parties on 19 December 2005. Having noted that Toll’s solicitor had excused himself when the Arbitrator delivered the ex tempore decision, I issued a Direction on 8 September 2006 calling for further submissions.
I have now received these further submissions from Toll and further submissions in reply from Mr Jensen. In those further submissions I note that Toll relies on the initial submissions requesting an oral hearing.
I am satisfied that Toll has now had the opportunity to finalise its submissions and I do not consider the matter involves particularly complex issues.
Mr Jensen submits that the matter can be dealt with on the papers and 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. I have reached this conclusion having regard to Practice Directions Numbers 1 and 6 and the documents that are before me including the transcript of the proceedings and the decision.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal satisfies the monetary threshold and accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
EVIDENCE, SUBMISSIONS AND DISCUSSION
As Toll submitted at the arbitration hearing, there were essentially two issues to be determined in the matter, injury and substantial contributing factor.
Injury
The Arbitrator made this finding in his ex tempore decision (transcript 52.46 and 53.25):
“I have no doubt on the evidence, on that material, and also the evidence which the applicant gave when he was cross-examined that the applicant sustained an injury at work on 3 December when stepping from his truck and, therefore, I find that the injury occurred in the course of his employment given that there was a temporal connection between the injury and the employment.
However, I would further note that in relation to whether the injury arose out of his employment, being a question of causation, that, in my view, the applicant also sustained the injury as a result of his activities at work.
The applicant injured himself when alighting from a Mack truck. As he gave his evidence on the last occasion, it involved stepping down some distance – I think a metre – from the last of the three steps that were attached to the side of his truck and it was in that stepping down and placing his weight on to his right knee, which he was required to do to alight from the truck to organise the delivery of petrol from his delivery truck, that he injured his right knee.
I think on the balance of probabilities, which is all I’m required to deal with, I accept that the applicant suffered the injury on that date.”
Toll submit that the Arbitrator determined the issue of injury in favour of Mr Jensen against the weight of the evidence. In support of this submission reference is made to the clinical notes of Mr Jensen’s general practitioner, Dr Malouf and also to the oral evidence of Mr Jensen at the arbitration hearing.
In or about 1992 Mr Jensen was kicked in the right knee resulting in an arthroscopy. He thereafter made a good recovery. In 1988 as a result of fitness training in the army, he suffered compartment syndrome and popliteal entrapment of both legs. This is a condition resulting in painful lower legs, mainly in the back of the calves. As a result of this condition Mr Jensen underwent popliteal entrapment surgery to both legs in 1988 and again in November/December 2003.
At the arbitration hearing Mr Jensen was cross-examined about his right knee prior to the accident on 3 December 2004 whilst employed by Toll. He replied that other than the injury in 1992 resulting in the right knee arthroscopy, his right knee had “…been performing pretty good”. Mr Jensen was then shown the clinical notes of Dr Malouf with an entry on 16 November 2004 referring to a painful right knee. Mr Jensen responded that:
“I went and seen him about my legs because I am still getting a bit of pain probably then with my compartment syndrome”.
On examining the clinical notes there are entries in April 2004 (painful left leg) and August 2004 (legs okay, occasionally painful).
On the day of the injury at Toll Mr Jensen phoned Dr Malouf’s surgery and spoke to Dr Paul Mac. The clinical records note the phone call received at 16:37 and the history of “lump on medial aspect of knee today at work”. The clinical notes also comment “asked to r/v should notify work”. In cross-examination it was put to Mr Jensen that Dr Paul Mac had no record of Mr Jensen saying it had anything to do with work on that day. Mr Jensen responded that he rang the surgery because he was in a lot of pain and did not know what to do.
I also note that Mr Jensen stated both in his oral evidence and his statement that he reported the injury on the day it happened to his supervisor, Kelly Phillips, using the truck phone.
After finishing his shift early on the night of the injury, about 9.15 p.m., Mr Jensen attended the Emergency Department of Westmead Hospital and then Dr Malouf on 7 December 2004 which was the first available appointment. He was then referred to Dr John F Fox, orthopaedic surgeon, who performed an arthroscopy of the right knee on 4 February 2005.
As Deputy President Byron said in John Robinson t/as Robinson’s Pharmacy v King [2005] NSWWCCPD 39:
“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence his decision, made a material mistake as to the facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and Re National Roads and Motorists Association Ltd [2003] FCAFC 206).”
I am satisfied on reading all of the evidence in this matter that there was no error in the Arbitrator’s decision on injury. There was adequate evidence for the Arbitrator to find that Mr Jensen had satisfied the onus on the issue of injury. Mr Jensen had a painful swollen right knee after the injury at work and there was no evidence to suggest that he was not able to perform his regular duties, which included climbing in and out of a truck, prior to this injury. I note that Toll called no evidence on the issue of injury, from Kelly Phillips or otherwise and accordingly I find that it was open to the Arbitrator to arrive at his decision on injury.
I also find that the Arbitrator provided adequate reasons on the issue of injury. In his decision the Arbitrator specifically noted the consistency between Mr Jensen’s evidence of a lump on his right knee and the notation in the clinical records of Dr Paul Mac. The Arbitrator also noted in the clinical records that although there were references to the legs and painful right knee on 16 November 2004, there were no previous references to a swollen painful right knee. The Arbitrator further noted that there was no evidence that Mr Jensen was not able to perform his normal duties before the injury on 3 December 2004.
Substantial Contributing Factor
The Arbitrator made this statement in his decision (transcript page 54.30):
“So, in dealing with the issue as to whether employment was a substantial contributing factor, section 9A of the 1987 Act, which provides that no compensation is payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury, and despite the non-exhaustive list of matters that are provided under that section, I don’t believe there is any particular issue that I need to further consider in relation to that on the basis of the decision in Mercer, having once found that the injury arose not only in the course of employment but out of the applicant’s employment.”
This interpretation of Mercer, as Deputy President Fleming pointed out in Sutherland Shire Council v Turner [2006] NSWWCCPD 37:
“…was expressly, albeit briefly, rejected by the Court of Appeal, (Mason P, with whom Meagher JA and Handley JA agreed), in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257. Such an approach is also inconsistent with the express words of section 9A(3)(a) which states that a finding the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.”
Although the Arbitrator made this statement he then moved on to note the meaning of substantial as stated by Meagher J in Dayton v Coles Supermarkets P/L [2001] NSWCA 153 and to correctly note that the legislation speaks of substantial contributing factor to the injury and not incapacity. The Arbitrator then considered how the injury occurred and the competing medical evidence.
Toll submit that the Arbitrator failed to have regard to the factors set out in section 9A(2) of the 1987 Act and in particular sub-paragraphs (d), (e) and (f). Section 9A(2) of the 1987 Act states:
“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.”
As stated above Dr Fox performed an arthroscopy on Mr Jensen’s right knee on 4 February 2005. In a report dated 10 March 2005 the doctor stated:
“The loose body was probably pre-existing however, was most likely dislodged by the incident and in such case its presentation would be 100% related to the injury of 3 December 2004 however, it’s actual existence was obviously not related to the injury on that date.”
Dr Lloyd Hughes, consultant orthopaedic surgeon, examined Mr Jensen at the request of Toll and in a report dated 22 July 2005 provided the following opinion:
“This man clearly injured his right knee 12 years ago and in my opinion the MRI scan findings following an incident on 3 December 2004 were consistent with the pathology in the knee joint resulting from the initial injury 12 years ago. In my opinion the injury 12 years ago resulted in a tear of the anterior cruciate ligament, a tear of the medial meniscus and the consequent development of a loose body in the knee joint. The incident on 3 December 2004 is not consistent with an injury to the knee but is consistent with internal derangement caused by a loose body which obviously pre-existed that incident.
In summary, it is my opinion that the problems, which this man developed with his right knee on 3 December 2004, related to an injury 12 years previously and had nothing at all to do with stepping to the ground on 3 December 2004. The employment on that date could not be said to be a substantial contributing factor to any injury to the knee.”
The Arbitrator in his decision stated, in my opinion correctly, that there was no real disagreement between Dr Hughes and Dr Fox as they were both of the opinion that the cause of Mr Jensen’s problems was a pre-existing loose body. The Arbitrator in his decision (transcript 56.10) went on to quote from Dr Fox under the heading of Causality:
“These were acute injuries and these are directly and causally related to the injury he sustained at work on 3 December 2004 as appropriately reported by Mr Jensen.
In my opinion Mr Jensen’s employment was the sole contributing factor to the injuries of the anterior cruciate ligament and the bucket handle meniscus. I suspect that the loose body may have been latent however, it was clearly not a problem prior to the incident of 3 December 2004.”
In considering the factors set out in subsections (d), (e) and (f) of section 9A(2) of the 1987 Act, I am satisfied having regard to the opinion of Dr Fox and the circumstances of the injury that it was not probable that Mr Jensen’s injury would have happened at the time that it did, if he had not been at work. The evidence from Mr Jensen at the arbitration hearing and in his statement was that after opening the door of the truck he placed both feet on the first step and then whilst his left foot was on the second step he took all the weight on the right leg when stepping to the ground and at this stage noticed severe pain and a lump in the right knee. When asked by the Solicitor for Toll if this was like a step from a kerb or gutter Mr Jensen explained that it was an aluminium step, its height being the distance from the base of the seat to the ground.
Toll submit that the Arbitrator failed to give adequate reasons on the issue of substantial contributing factor. Although the Arbitrator at first incorrectly relied on the “merely because” (arose out of or in the course of employment) prohibition (Chubb Security Australia P/L v Trevarrow [2004] NSWCA 344) he quickly turned to the medical evidence and in my view dealt with it in sufficient detail such that it “…would adequately convey to the parties who are acquainted with the circumstances of this matter, the basis upon which the Arbitrator came to his decision”. (Camden Council v Hancock [2005] NSWWCCPD 6).
Toll submit that the Arbitrator erred in preferring the evidence of Dr Fox to Dr Hughes. I do not agree with this submission, as the Arbitrator stated, Dr Fox as the operating surgeon had the benefit of considering the situation more fully than Dr Hughes. The difficulty with the medical report of Dr Hughes is that he offers no explanation as to why the pre-existing loose body caused the internal derangement on 3 December 2004. On the other hand the explanation offered by Dr Fox that the pre-existing loose body was most likely dislodged by the injury on 3 December 2004 is consistent with the evidence of Mr Jensen.
Mr Jensen’s Credit
Toll submit that the Arbitrator has not considered or addressed the issue of Mr Jensen’s credit as a witness or as to his recollection of past events and the inconsistencies between his allegations and the material admitted into evidence at the arbitration hearing. It is further submitted that the Arbitrator has failed to give any reasons pertaining to those matters and has failed to consider the significance of those matters so far as they affect the evidence. In support of this submission Toll has made reference to various pages of the transcript where Mr Jensen was cross-examined, mainly about the condition of his right knee prior to the injury with Toll.
Mr Jensen submits in response that it is clear from the award in his favour that the Arbitrator accepted his evidence. He further submits that the Arbitrator did not fail to have any proper or adequate regard to the evidence and submissions relied on by Toll on the issues of his credit, recollection of past events, alleged inconsistencies and the material admitted into evidence at the arbitration hearing.
I agree with the submission by Mr Jensen. The Arbitrator in his decision specifically referred to the submission by Toll about the condition of Mr Jensen’s right knee prior to the injury with Toll and set out his reasoning for rejecting those submissions (transcript pages 53 and 56).
The Arbitrator’s decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430). While the Arbitrator did not clearly discuss the evidence in terms of Mr Jensen’s credibility, it is evident that he accepted Mr Jensen as a witness of truth when reading the decision as a whole. In this regard Mr Jensen was cross-examined on these issues and the Arbitrator had the benefit of hearing and observing him give evidence.
DECISION
Despite the Arbitrator’s error of law by way of his reliance on the “merely because” prohibition, I am not satisfied that a re-hearing and re-determination of this issue would lead to any different outcome and I decline to revoke the award on this basis. The decision of the Arbitrator, dated 11 November 2005, is confirmed.
COSTS
Toll Pty Limited is to pay Mr Jensen’s costs of the appeal.
Julian Martin
Acting Deputy President
8 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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