Toll Pty Ltd v Ballantyne
[2008] NSWWCCPD 46
•18 April 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46
APPELLANT: Toll Pty Ltd
RESPONDENT: Glyn Charles Ballantyne
INSURER:Self-insured
FILE NUMBER: WCC5398-06
DATE OF ARBITRATOR’S DECISION: 26 October 2007
DATE OF APPEAL DECISION: 18 April 2008
SUBJECT MATTER OF DECISION: Weight of medical evidence; weight and relevance of a Medical Assessment Certificate in a claim for weekly compensation; calculation of compensation and exercise of discretion under section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Slater & Gordon
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 26 October 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Glyn Ballantyne is currently 61 years of age. On 31 January 2002 he sustained multiple injuries when a car struck him on Military Road Mosman. At the time he was acting in the course of his employment as a courier with Toll Pty Ltd (‘the Appellant Employer/Toll’). He was taken to Royal North Shore Hospital where he was admitted until 2 February 2002.
Toll accepted liability for his claim and paid weekly compensation and medical expenses until 15 March 2005. By an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 5 April 2006, Mr Ballantyne alleged that he sustained injuries to his head, neck, ears, shoulders, left knee and lower back in his accident. He sought weekly compensation in the sum of $1,200.00 per week from 15 March 2005 to date and continuing together with medical expenses and compensation for whole person impairment said to have resulted from his injuries.
At an arbitration on 23 June 2006, a Commission Arbitrator (‘the first Arbitrator’) determined that Mr Ballantyne injured his cervical spine, lumbar spine and head in the accident, but did not injure his shoulders or left knee. The Arbitrator referred Mr Ballantyne’s claim for lump sum compensation to two Approved Medical Specialists (‘AMSs’) for assessment, Dr Matheson and Dr Niall. Dr Matheson assessed the impairment resulting from the injury to the cervical spine and lumbar spine, and Dr Niall assessed the impairment resulting from the head injury (alleged to be hearing loss, tinnitus and vertigo).
Dr Matheson issued a Medical Assessment Certificate (‘MAC’) on 29 August 2006 certifying Mr Ballantyne to have a 10% whole person impairment in respect of his lumbar spine, but deducted 100% under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) for a pre-existing condition. He assessed Mr Ballantyne to have a 0% whole person impairment in respect of his cervical spine.
Dr Niall also issued a MAC on 29 August 2006 in which he certified Mr Ballantyne to have certain losses as a result of his head injury. Toll appealed against this MAC to a Medical Appeal Panel and on 18 December 2006 the Appeal Panel revoked Dr Niall’s MAC and issued a new MAC certifying Mr Ballantyne to have 8% whole person impairment as a result of his hearing loss and tinnitus, reduced to 7% after a deduction of 1/10 for a pre-existing condition, and 0% whole person impairment as a result of his alleged vestibular disequilibrium (vertigo).
Each party sought a reconsideration of the Appeal Panel MAC. In separate decisions, the Appeal Panel refused both applications, Mr Ballantyne’s on 28 March 2007 and Toll’s on 20 July 2007. In respect of Toll’s reconsideration application, the Appeal Panel corrected a minor error in the MAC of 18 December 2006 where the sixth column had been left blank but should have stated “one-tenth”. This correction makes no difference to the substance of the MAC issued on 18 December 2006 (wrongly referred to as 15 December 2006 in the reconsideration decision).
A different Commission Arbitrator heard Mr Ballantyne’s claim for weekly compensation and for medical expenses on 3 May 2007. On that day Mr Ballantyne gave brief oral evidence and was cross-examined. In a reserved decision dated 26 October 2007, the Arbitrator made the following orders:
“1. The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 40 of the 1987 Act at the rate of $315.44 per week from 15 March 2005 to date and continuing.
2. The Respondent is to pay the Applicant’s reasonably necessary section 60 expenses resulting from the injuries sustained on 31 January 2002.
3. In accordance with the decision of the Medical Appeal Panel of 18 December 2006 the Respondent is to pay the Applicant compensation pursuant to section 66 of the 1987 Act of $8,750.00 for 7% WPI as a result of the hearing loss and tinnitus.
4. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 21 November 2007, Toll seeks leave to appeal this decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Toll is “of the view that this matter is a matter which should not be determined on the papers but rather should be given an oral hearing before a Presidential Member as the appeal involves complex issues which would benefit from such an oral hearing”. It is also argued that the transcript of the arbitration was not available at the time the appeal was filed and an oral hearing is the most appropriate course for addressing the transcript when it is provided.
The Registrar forwarded a copy of the transcript to the parties on 12 February 2008. By letter dated 27 February 2008, Toll’s solicitor wrote to the Commission acknowledging receipt of the transcript but advising that it was incomplete, adding “In our view this is most appropriately dealt with at a hearing”.
The Registrar forwarded further transcript to the parties on 26 February 2008. On 11 April 2008 my research associate contacted Toll’s solicitor by telephone and confirmed that he had received all relevant transcripts in this matter, that is, the transcript for the first arbitration on 23 June 2006 and for the second arbitration on 3 May 2007.
Each party has filed written submissions on appeal and on 30 January 2008 Toll filed further submissions in reply to the Respondent Worker’s submissions. The issues raised on appeal are not of any great complexity. In these circumstances, I do not believe the issues are likely to be further elucidated by an oral hearing.
Having regard to Practice Directions Numbers 1 and 6, 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to consider or have any regard to the video evidence (‘video evidence’);
(b)failing to properly consider and weigh the competing medical evidence (‘medical evidence’);
(c)assessing Mr Ballantyne’s ability to earn and, as a consequence, erred in calculating his entitlement under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘section 40 assessment’), and
(d)failing to have regard to Mr Ballantyne’s non work-related medical conditions and his failure to seek any employment as discretionary considerations in the assessment of any section 40 entitlement (‘section 40 assessment’)
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Video Evidence
Toll submits, and Mr Ballantyne concedes, that the Arbitrator did not refer to the video evidence in her Statement of Reasons for Decision (‘Reasons’). This error is significant, it is argued, because of the inconsistencies between Mr Ballantyne’s activities in the video and his presentation to various doctors. For example, Mr Ballantyne told Dr Edwards that he had not driven at all since his accident but he was observed in September 2004 driving a car. Further, it is argued that this inconsistency is important for the purpose of assessing the competing views expressed by the doctors and that the inconsistencies support the opinions of Drs Hughes, Edwards, Potter, Matheson, Mellick and Roberts, and contradict Dr Bleasel.
Though the video was not played at the arbitration, it was tendered in evidence (T5.25) and counsel for Toll cross-examined Mr Ballantyne about whether he’d driven a car since his licence expired in April 2003 and Mr Ballantyne replied, at T17.35:
“Yes, I – on a couple of occasions during bad weather I drove to the doctor’s, which is 200 yards in a straight line down the road, simply because I couldn’t walk fast enough to stay dry.”
He added that he had driven on two occasions since about June 2003 (T17.50) and agreed (at T18) with most of the propositions put to him about his driving. The only proposition with which he did not agree was not pursued with any further questions. Counsel for Toll made no submissions about this evidence, the video, or Dr Edwards’ history that Mr Ballantyne had not driven since his accident. In these circumstances, it is hardly surprising that the Arbitrator did not refer to the video evidence in her Reasons.
In his submissions at the arbitration, counsel for Toll made three references to Mr Ballantyne’s credit. First, he submitted that the Arbitrator would get “some guidance from the opinion of Dr Matheson as to the applicant’s credibility” (T28.48).
Second, at T29.13 he submitted:
“So when you come to look at the evidence, I would respectfully ask you to look at the objective evidence, not just be confined to the applicant’s complaints, because whilst no doubt he believes them himself, there is considerable opinion that places some doubt as to their trustworthiness.”
Third, at T40.14 he submitted:
“What must be seen in terms of credibility as well in the context of what the applicant can do and not do and his complaints are the observations of the applicant that are before you, wherein he can clearly drive, and not just in a straight line ‑ the observations show him executing a U‑turn as he drives home; the fact that he's able to walk up and down stairs ‑ he doesn’t appear to be wobbly; the fact that he walks without an unsteady gait and doesn’t seem to have any ‑ not being fazed in any way by walking over railway stations and stairs.
How that translates to his incapacity is simply the submission that it would appear from a very brief snapshot taken randomly of the applicant that there’s nothing overtly wrong with him that would prevent him from doing a wide variety of work,”
The Arbitrator referred to Dr Edwards’ evidence (Reasons, paragraph 22) and to his concession that, so far as Mr Ballantyne’s fitness for work as a result of his head injury was concerned, whether he can work as a courier depends on an opinion from a neurologist as to whether he can drive.
I have viewed the video. Its relevant contents may be summarised as follows:
30 September 2004 Mr Ballantyne drives a car about 100 metres, parks the car and crosses the railway line at Wentworthville train station via a stairway. He enters a store and then returns to his car via the same stairway and drives 100 metres to his home. He walks at a modest pace without a walking stick.
2 October 2004 No observations of relevance are recorded.
23 February 2005 Mr Ballantyne is seen walking slowly with, at times, an uneven gait with the support of a walking stick that he holds mostly in his right hand. He again ascends and descends the stairs at Wentworthville train station. Later, he is seen walking in what appears to be Macquarie Street, Sydney where again uses his walking stick for support.
25 February 2005 Mr Ballantyne is seen on the porch of his residence.
28 February 2006 Mr Ballantyne is seen at his home where he walks slowly with a slightly uneven/unsteady gait, without a walking stick, up the driveway to check his letterbox.
The video evidence reveals a man who is substantially inactive and, at times, appears to walk with a slightly uneven or unsteady gait. Apart from twice driving a car a distance of 100 metres, the video revealed no activities inconsistent with Mr Ballantyne’s complaints in his evidence and to the medical witnesses. When cross-examined about driving a car since April 2003, Mr Ballantyne freely admitted he drove his car “200 yards” on two occasions. I do not consider his failure to reveal that fact to Dr Edwards (assuming that Dr Edwards’ history is accurate) to be critical or decisive in the overall assessment of the case. On its own, that failure adds nothing to the determination of the competing opinions expressed by the doctors in the case. Given that Mr Ballantyne saw Dr Edwards on 15 June 2006, it may well be, without deciding the issue, as there was no cross-examination on this point, that he simply forgot that he had driven his car a short distance on two occasions in the previous couple of years. That omission, given the freely volunteered concession made by Mr Ballantyne in cross-examination that he drove a car on two occasions since his accident, is of no significance in the overall assessment of the case.
The other matters revealed in the video do not undermine his claim but provide some support for it. The video of 23 February 2005 (for which there is no investigators report in evidence) shows Mr Ballantyne walking with an unsteady gait and using a walking stick for support. I note that the first Arbitrator commented that Mr Ballantyne “did not look particularly steady” in the video and that he seemed to “walk carefully” (first arbitration, T63.41). Far from supporting the Appellant Employer’s case, this evidence corroborates Mr Ballantyne’s evidence at page nine of his statement on 14 June 2006 where he said:
“In or about 2003 I was given a walking stick by my in-laws. I decided to carry this walking stick with me because, although I do not need it to walk in the sense that I am ambulatory I find the walking stick useful as an aide if I become giddy or suffer an attack of vertigo. Since the accident I have been susceptible to losing my balance. I therefore carry the walking stick as it assists me, for example, when I am walking along a footpath which is at an angle. When that happens, I find it difficult to walk in a straight line. If I find myself feeling as though I am going to overbalance, I use the walking stick to correct my balance. I am often able to walk for a time without using the walking stick, however, I find it a reassuring precaution to have it with me. I have used the walking stick on enumerable [sic] occasions to momentarily correct my balance.”
In these circumstances, whilst the Arbitrator erred in failing to refer to the video, I do not believe the Arbitrator’s omission constitutes an appealable error such that but for it a different result should have been reached.
Medical Evidence
It is argued that the Arbitrator erred in that she:
a) failed to take into account that the first Arbitrator determined that Mr Ballantyne did not sustain any injury to his left leg in the 2002 accident (‘the left leg’);
b) failed to take account of the fact that Mr Ballantyne has a history of a long standing low back condition including, for example, bilateral sciatica and leg numbness going back to 1997 (‘pre-existing low back condition’);
c) criticised the report of Dr Matheson (the AMS), particularly in circumstances where his assessment was not the subject of any appeal and it was consistent with the findings of the first Arbitrator, with the preponderance of other medical evidence and with the video of Mr Ballantyne’s activities (‘Dr Matheson’s evidence’);
d) failed to properly consider and weigh the medical evidence from Dr Edwards and inappropriately criticised Dr Edwards by asserting a failure by Dr Edwards to account for the continuing symptoms claimed by Mr Ballantyne against the background of an incorrect assertion by the Arbitrator that Mr Ballantyne had no serious symptoms before the accident. As Mr Ballantyne had serious symptoms in his low back before the accident the Arbitrator’s criticisms of Dr Edwards were without foundation. Dr Edwards’ views are consistent with the opinion expressed by the AMS and with the preponderance of the medical evidence (‘Dr Edwards’ evidence’);
e) disregarded or discounted the opinions of Drs Hughes and Potter despite the fact that their views were consistent with Dr Matheson’s views and with the weight of the medical evidence (‘Dr Hughes’ and Dr Potter’s evidence’);
f) stated that there was “considerable” evidence before her from other doctors who assessed Mr Ballantyne to have ongoing debilitating symptoms in the neck and lower back (Reasons, paragraph 25). In fact, the only other medical evidence to that effect was from Dr Bleasel, whose views were against the weight of all the other medical evidence. Dr Bleasel’s evidence relating to Mr Ballantyne’s left shoulder was also contrary to the specific finding by the first Arbitrator that Mr Ballantyne sustained no injury to the left shoulder in the 2002 accident (‘other medical evidence’);
g) accepted the opinions of Dr Bleasel based on her acceptance of the doctor’s comments as to Mr Ballantyne’s complaints of continuing symptoms (‘other medical evidence’);
h) stated that there had been an acceptance of Mr Ballantyne’s complaints as genuine and as having resulted from the accident by Dr Drever, Mr Ballantyne’s general practitioner, (Reasons, paragraph 26) when Mr Ballantyne did not rely on any report from Dr Drever (‘Dr Drever’s evidence’);
i) criticised the assertions by Dr Matheson and Dr Mellick of “somatisation” solely on the basis that Dr Roberts did not consider Mr Ballantyne to be suffering from any psychiatric injury or condition. The opinions of Drs Matheson and Mellick remained valid notwithstanding Dr Roberts’ opinion (‘somatisation’), and
j) erred in assessing and considering the weight of the competing medical evidence (‘weight of evidence’).
The Respondent Worker submits:
a) the Arbitrator found at paragraph 27 of her Reasons that Mr Ballantyne has “some sciatic pain in the left leg resulting from the back injury” but she did not consider he suffered any serious limitations or restrictions because of the left leg injury. This finding was not contrary to the finding by the first Arbitrator;
b) the Arbitrator took into account Mr Ballantyne’s history of a long standing low back condition at paragraph 25 of her Reasons;
c) the Arbitrator was justified in her criticism of Dr Matheson who stated, contrary to the first Arbitrator’s determination, that there was “no evidence of injury here at all”;
d) the Arbitrator accepted that Dr Matheson’s opinion as to whole person impairment is conclusively presumed to be correct (Reasons, paragraph 21), but she felt that his opinion was not of great assistance in understanding the nature of Mr Ballantyne’s injury or in respect of any incapacity for work as a result of that injury;
e) the Arbitrator carefully assessed Dr Edwards’ report and correctly noted that he failed to account for Mr Ballantyne’s continuing symptoms;
f) the Arbitrator concluded that Dr Hughes’ conclusion (of no injury) was inconsistent with the first Arbitrator’s finding;
g) the weight and relevance to be given to the evidence before an Arbitrator is a matter for the Arbitrator and should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise the discretion fairly and according to law;
h) there was other evidence before the Arbitrator, namely, Dr Bleasel’s report, medical certificates from Dr Drever, and Mr Ballantyne’s evidence, that Mr Ballantyne has ongoing and debilitating symptoms in his neck and lower back, and
i) the Arbitrator placed great weight on the fact that for years Mr Ballantyne performed his pre-injury duties as a courier driver.
The Left Leg
Toll’s submission as to the finding made by the first Arbitrator about Mr Ballantyne’s left leg is not correct. The first Arbitrator found that Mr Ballantyne did not injure his “left knee” (first arbitration, T60.31). He did not find, as has been submitted, Mr Ballantyne did not injure his left leg. Therefore, it was open to the Arbitrator to accept that Mr Ballantyne continues to complain of left leg symptoms if those symptoms have resulted from his accepted back injury, though she did not consider he suffered any serious limitations or restrictions because of the left leg injury (Reasons, paragraph 27). Her reference to “left leg injury” was apt to mislead and was inappropriate. A reading of the whole decision, however, makes it clear that she did not assess Mr Ballantyne’s claim on the basis that he sustained an injury to the left leg or the left knee. It would have been more accurate if the Arbitrator had referred to ‘left leg symptoms’ as a result of the back injury. However, nothing turns on the Arbitrator’s inaccurate terminology.
Pre-existing Low Back Condition
At paragraph 25 of her Reasons, the Arbitrator acknowledged that Mr Ballantyne had “pre-existing conditions in the neck and back” but concluded that, given that he had undertaken his pre-injury duties as a courier driver, those conditions were not incapacitating. She correctly observed that there was no evidence that Mr Ballantyne had any serious problems with his neck or back before the accident and no evidence that he had significant time off work because of such problems.
Toll relies on the evidence of Dr Watson, consultant neurologist, who treated Mr Ballantyne’s head injury from February 2002 until August 2003. In his report of 15 November 2002, Dr Watson recorded that Mr Ballantyne had “ongoing bilateral sciatica and leg numbness, which goes back to 5 years ago but had been worse since the [2002] accident”. Whilst the Arbitrator made no specific reference to this piece of evidence, that is hardly surprising as neither party referred to it in submissions. Nevertheless, the Arbitrator was aware of and dealt with the fact that Mr Ballantyne had prior back symptoms and a pre-existing spondylolisthesis. She concluded, for sound reasons, that notwithstanding those symptoms Mr Ballantyne had been able to “do his pre-injury duties as a courier without any serious problems” (Reasons, paragraph 20). This finding was consistent with the evidence and discloses no error.
Dr Matheson’s Evidence
The Arbitrator made the following observations about the MACs in general and Dr Matheson’s MAC and his report in particular:
a) the assessments certified in the MACs are “conclusively presumed to be correct as to the degree of permanent impairment” as a result of his injury (Reasons, paragraph 19);
b) the assessments by the AMSs were only undertaken for the purpose of determining Mr Ballantyne’s entitlement to lump sum compensation and neither doctor was asked to make a general medical assessment as to his capacity to earn or his fitness for employment (Reasons, paragraph 19);
c) in determining whether Mr Ballantyne was unfit for work, she had to take into account all the evidence and consider it against the background of the assessments of permanent impairment by both AMSs and the Medical Appeal Panel (Reasons, paragraph 20);
d) the degree of permanent impairment is relevant to the issue of incapacity but it is not determinative of that issue (Reasons, paragraph 20);
e) inconsistently with the referral to him of a work-related injury having been sustained on 31 January 2002, Dr Matheson concluded “There was no evidence of an injury here at all that we can ascertain” (Dr Matheson’s MAC 29 August 2006, page four);
f) Dr Matheson did not explain why he made a deduction of 100% under section 323 of the 1998 Act in respect Mr Ballantyne’s pre-existing condition (Reasons, paragraph 21), and
g) she did not find Dr Matheson’s report of great assistance in understanding the nature of Mr Ballantyne’s injury, nor did she find that it shed much light on whether his claimed incapacity resulted from those injuries (Reasons, paragraph 21).
The Arbitrator’s comments disclose no error and I agree with them. It is clearly for the Commission’s Arbitrators to determine issues of liability and incapacity. Such matters require the ascertaining and weighing of all relevant evidence and the application of legal principles to that evidence. An AMS is neither equipped nor trained to engage in such a process. Once injury is determined by an Arbitrator, as it was by the first Arbitrator in the present matter, it is for an AMS to then assess the degree of permanent impairment as a result of that injury and whether any proportion of that impairment is due to any previous injury or pre-existing condition or abnormality. An AMS’s certification of those issues in a MAC does not determine a worker’s entitlement to weekly compensation.
The Arbitrator’s observations about Dr Matheson’s role and his report were open to her on the evidence and disclose no error. I agree with them. Dr Matheson’s statement that there was “no evidence of any injury” was inconsistent with the clear finding by the first Arbitrator, made after a contested arbitration at which both parties had legal representation. The first Arbitrator found that on 31 January 2002 Mr Ballantyne injured his head, neck and lumbar spine. The finding was based on all the available evidence, including the notes from Royal North Shore Hospital. Those notes record that a car struck Mr Ballantyne from behind resulting in him landing on the car’s bonnet and striking his head on the windscreen, which smashed. Diagrams in the notes indicate a lumbar bruise, pain in the lower back and a laceration to the scalp.
I do not accept Toll’s submission that Dr Matheson’s assessment is consistent with the findings of the first Arbitrator. Quite clearly, Dr Matheson’s reference to “no evidence of any injury” is inconsistent with the first Arbitrator’s findings on injury. The fact that Dr Matheson’s MAC was not the subject of an appeal merely means that his certification as to permanent impairment and the deduction under section 323 are conclusively presumed to be correct and an Arbitrator has no power to make an award for lump sum compensation inconsistent with that certification. The Arbitrator has not done so. It does not, however, mean that the Arbitrator was bound to find that the AMS’s opinions on issues other than permanent impairment prevented her from finding that Mr Ballantyne’s back and neck injury contributed to his incapacity for work in the labour market reasonably accessible to him.
Whether Dr Matheson’s conclusions were consistent with the preponderance of medical evidence was not determinative of the issues the Arbitrator had to decide. She had to assess the weight to be attached to that medical evidence, having regard to all the evidence in the case, including, in particular, Mr Ballantyne’s evidence, which was tested in cross-examination. She did that and her conclusions disclose no error.
The relevance of the Arbitrator’s failure to deal with the video evidence has been dealt with earlier in this decision and makes no difference to the outcome of the case. As I have already noted, the video corroborates Mr Ballantyne’s complaints in several respects (see [35] above).
Dr Edwards’ Evidence
The challenge to the Arbitrator’s conclusions about Dr Edwards’ evidence is that she failed to consider and weigh that evidence. It is based on the assertion that the Arbitrator erred in stating that Mr Ballantyne had no “serious symptoms” before the 2002 accident (Reasons, paragraph 22).
Mr Ballantyne has never disputed or concealed the fact that he had back and leg symptoms before his accident in 2002. It is referred to in his statement of 14 June 2006 and in most of the medical reports tendered in evidence. In his statement, Mr Ballantyne said that his back injury (from a 1998 accident) had improved but it still stopped him from running. He also experienced numbness in his legs, the right more than the left. Whilst it is unclear, I assume that this part of his statement refers to his symptoms before the 2002 accident. He added that he took up a career as a courier (with Toll) so he could be more physically active to improve his back condition (Mr Ballantyne’s statement, page three). He continued that career without any apparent difficulty until his accident in 2002.
I have not been referred to any evidence in support of this ground of appeal. The challenge turns on the meaning of “serious symptoms”. It was open to the Arbitrator to find that Mr Ballantyne’s pre-existing back symptoms (including the leg symptoms resulting from his back pain) were not “serious” in the sense of being incapacitating so far as his job as a courier with Toll was concerned. The Arbitrator correctly noted that there was no evidence that Mr Ballantyne had significant time off work because of his pre-existing back pain or that he was unable to do his pre-injury work. The evidence is that prior to the accident Mr Ballantyne had occasional back pain but was quite capable of doing all his work and he did not feel that he was in any way seriously disabled (Dr Bleasel 20 July 2005, page two). In these circumstances, the Arbitrator was entitled to find that his pre-existing symptoms were not serious. This conclusion discloses no error and I agree with it.
The Arbitrator considered and weighed Dr Edwards’ evidence (at paragraph 22 of her Reasons) and she correctly observed that Dr Edwards failed to account for Mr Ballantyne’s continuing symptoms since the 2002 accident. Those symptoms are worse than the symptoms he experienced before his accident (Mr Ballantyne’s statement 14 June 2006, page nine). The Arbitrator’s conclusion was open on the evidence and discloses no error.
Dr Hughes’ and Dr Potter’s Evidence
Just because the opinions of Drs Hughes, Edwards and Potter were consistent with the opinions of Dr Matheson, did not mean they had to be accepted by the Arbitrator. Evidence does not necessarily become more persuasive through repetition. The value of an expert’s opinion will depend upon many things, but “above all upon the extent to which his evidence carries conviction, and not upon the possibility of producing a second person to echo the sentiments of the first” (Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39, quoted by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 at 729). The Arbitrator’s task was to weigh all the evidence, including that from Mr Ballantyne, and reach a conclusion as to which she accepted as more logical and probative having regard to the issue she had to determine. She did that and accepted Mr Ballantyne’s evidence, supported by Dr Bleasel. Like Dr Edwards, Dr Hughes did not account for Mr Ballantyne’s continuing symptoms, which were worse after his accident. Dr Potter did not accept Mr Ballantyne’s complaints as being genuine and added that the complaint of constant pain could not be medically explained. Once the Arbitrator accepted Mr Ballantyne’s evidence that his neck and back symptoms were worse after the 2002 accident (and remained worse) and that his pre-accident symptoms had not been incapacitating, it was open to her to reject Toll’s medical case. Her findings were open on the evidence and disclose no error. I agree with them.
Other Medical Evidence
The Arbitrator’s reference to there being “considerable evidence” from other doctors of Mr Ballantyne having debilitating symptoms in his neck and lower back may be seen as a reference to the evidence from Dr Bleasel, neurosurgeon, and Dr Drever, general practitioner. The Arbitrator accepted Dr Bleasel’s evidence and noted that it was apparent that Dr Drever accepted Mr Ballantyne’s continuing complaints of neck and back pain, as well as headaches, as genuine and directly caused by the accident (Reasons, paragraph 26). The Arbitrator’s approach was open on the evidence and discloses no error.
The fact that Dr Bleasel’s evidence relating to Mr Ballantyne’s left shoulder is contrary to the first Arbitrator’s finding of no injury to the left shoulder is of no consequence because the Arbitrator did not rely on that part of his opinion in reaching her conclusion. She stated at paragraph 26 of her Reasons that she accepted Dr Bleasel’s comments as to Mr Ballantyne’s continuing complaints of symptoms and pain “in his neck and back following the accident”. The fact that the Arbitrator restricted her acceptance of Dr Bleasel’s evidence to his comments about Mr Ballantyne’s neck and back is confirmed at paragraph 32 of her Reasons and also at paragraph 33 where she expressly referred to his shoulder problems as being “non work-related”.
In relying on Dr Bleasel’s evidence, the Arbitrator stated, at paragraph 26 of her Reasons:
a) she accepted his comments as to Mr Ballantyne’s continuing complaints of symptoms and pain in his neck and back, and
b) while aware of the pre-existing pathology, the doctor did not consider it contributed significantly to Mr Ballantyne’s presenting symptoms.
In accepting Dr Bleasel’s evidence the Arbitrator clearly also accepted Mr Ballantyne’s evidence that he continues to suffer symptoms as a result of his physical injuries to his head, neck and back (Reasons, paragraph 33). This finding was open to the Arbitrator and discloses no error.
Dr Drever’s Evidence
The Arbitrator’s reference to Dr Drever’s evidence is found at paragraph 26 of her Reasons where she merely observed “it is apparent the Applicant’s treating General Practitioner, Dr Drever, accepts his continuing complaints of neck and back pain, as well as headaches, as genuine and directly caused by the accident”. Two comments need to be made about this observation. First, the Arbitrator based her conclusions on Mr Ballantyne’s evidence, supported by the expert evidence of Dr Bleasel, not on Dr Drever’s opinions. The reference to Dr Drever was merely a passing observation and did not form the basis of the Arbitrator’s decision. Second, the Arbitrator’s observation was supported by the content of Dr Drever’s certificate of 21 March 2005 where he diagnosed Mr Ballantyne as having “injuries (head neck and back) from a MVA 31/1/02” to which his employment was a substantial contributing factor and which rendered him unfit to work from 21 March 2005 until 30 June 2005. The Arbitrator’s reference to Dr Drever’s evidence discloses no error, as it was not the evidence on which she based her conclusion.
Somatisation
The Arbitrator noted that Toll has not challenged the findings by the first Arbitrator that Mr Ballantyne sustained physical injuries in his accident and added that, in those circumstances, she did not accept the “unsupported suggestion of fabrication by Dr Roberts or the suggestion of ‘somatisation’ by Dr Matheson” (Reasons, paragraph 32). The Arbitrator accepted Dr Mellick’s opinion that Mr Ballantyne should be regarded as exhibiting evidence of chronic pain syndrome, but did not accept his suggestion that the symptoms were just “psychologically based or are connected with somatoform disorder” (Reasons, paragraph 32). She then added:
“There is simply no convincing evidence from a relevant specialist to support those speculative suggestions. The history recorded by Dr Roberts, which I accept, is that the Applicant has been referred by Dr Drever to a Pain Management clinic and has undergone many physiotherapy sessions for his neck and back. However he has not seen a Psychologist or a Psychiatrist, and the only specialist report before me in this regard is therefore that of Dr Roberts, which I have discussed at paragraph 29 above.”
The Arbitrator’s finding on this issue was logical and based on an appropriate analysis of the whole of the evidence. Her approach discloses no error.
Weight of Evidence
It was for the Arbitrator to consider the weight to be attached to the evidence tendered. In a detailed, carefully considered and well-reasoned decision, the Arbitrator did not accept the opinions expressed by Toll’s experts. Her approach and conclusions disclose no error.
Section 40 Assessment
Ability to Earn
Toll submits that the Arbitrator erred in finding Mr Ballantyne only able to earn $225.00 per week (based on working three hours per day at $17.00 per hour for five days per week) because:
a) there is no reason why he could not work for a whole day or, at the very least, substantially in excess of three hours per day;
b) she failed to take into account Mr Ballantyne’s engineering qualifications and considerable experience in sales and engineering (being sedentary work that he performed prior to starting work with Toll);
c) Mr Ballantyne’s engineering qualifications are such as would reasonably result in his being able to secure remuneration of closer to $40.00 per hour, and
d) Mr Ballantyne’s ability to earn is at least equal to or in excess of his probable earnings but for injury of $570.44 per week.
The Arbitrator noted that the medical situation was “somewhat complex” and involved the interaction of the effects of injuries to several body parts (Reasons, paragraph 33). She accepted that Mr Ballantyne has continuing symptoms as a consequence of his physical injuries to his head, neck and back on 31 January 2002.
She was satisfied that Mr Ballantyne continues to suffer from symptoms of disequilibrium, imbalance and dizzy turns, and that his symptoms are unpredictable and largely uncontrollable and that they severely limit the nature of the work he can realistically perform (Reasons, paragraph 34).
Mr Ballantyne presented as being totally incapacitated for work. This position was supported by Dr Drever’s certificate of 21 March 2005 and by Dr Bleasel’s report of 20 July 2005 (page six). Dr Scoppa, ear, nose and throat physician, considered Mr Ballantyne to be “so incapacitated by his symptoms as to render him unlikely to ever again be able to return to his previous employment, or any other occupation for which he is reasonably qualified by age, qualifications, education, training or experience” (Dr Scoppa, 5 October 2005, page seven). Based on Mr Ballantyne’s complaints of vertigo, Dr Watson stated in his report of 13 May 2003 that it seemed “unlikely he is ever going to return to commercial driving”.
Dr Seymour, ear, nose and throat specialist qualified on behalf of Toll, stated that Mr Ballantyne was not fit for employment as a courier/driver but thought he would be fit for any occupation within his capacity that did not involve climbing to heights, quick and repetitive movements of the head, or lying on his back for a long period of time. Drs Hughes and Edwards considered Mr Ballantyne fit for his pre-injury job as a courier and Dr Potter considered him fit for work.
After referring to the above evidence and noting that Mr Ballantyne has not been able to work since January 2002, the Arbitrator was not satisfied that he was totally incapacitated for work because of his injuries. She then found, at paragraphs 40 and 41 of her Reasons:
a) Mr Ballantyne is not fit for his pre-injury duties as a courier;
b) the combination of his on-going symptoms, pain and restrictions result in him being very limited in the work he can reasonably expect to find and do on a continuing basis;
c) Mr Ballantyne’s difficulties in finding work are genuine and well-based;
d) his symptoms are unpredictable and uncontrollable and there are many jobs he would not be able to realistically undertake;
e) he would not be able to work on a full-time basis given the nature of his symptoms and restrictions;
f) while Mr Ballantyne holds a diploma in engineering, he has not worked in that field for many years;
g) he is also dyslexic, which affects his ability to do many jobs;
h) his residual capacity to compete in the labour market reasonably open to him is limited;
i) he has serious, incapacitating and unpredictable symptoms in several body parts because of his work injuries;
j) he is subject to many restrictions;
k) at the time of the arbitration, Mr Ballantyne was 60 years of age;
l) though he has some skills, it is difficult to see how he will transfer those to new work situations given his symptoms and limitations;
m) it will not be easy for him to find suitable work within his restrictions on a part-time or casual basis;
n) accepting that Mr Ballantyne might be able to work in sales, as a car park attendant or in light process work (as submitted by counsel for Toll at the arbitration), he could not realistically undertake such duties more than three hours per day, five days per week, being an average of 15 hours per week;
o) performing part time work of the kind suggested by counsel for Toll, Mr Ballantyne is unlikely to earn more than $17.00 per hour, being a little more than he earned pre-injury, and
p) at $17.00 per hour for 15 hours per week is $255.00 per week.
Subtracting $255.00 from $570.44 gave a difference of $315.44 per week. The Arbitrator was satisfied that there were no factors to warrant the exercise of her discretion to reduce this figure and made an award in favour of Mr Ballantyne in the sum of $315.44 per week from 15 March 2005 to date and continuing.
The Arbitrator was faced with sharply conflicting evidence. On the one hand, evidence from Drs Hughes, Edwards and Potter of no incapacity. On the other, the evidence from Mr Ballantyne, Dr Bleasel and Dr Drever of total incapacity. The Arbitrator carefully considered the whole of the evidence and reached a conclusion that has struck a fair balance between those competing views. Her analysis of the evidence and conclusions were open to her and disclose no error.
Dealing specifically with Toll’s submissions, I make the following observations and findings:
a) Mr Ballantyne’s injuries, as accepted by the Arbitrator, would prevent him working a full day or substantially longer than three hours per day. Even if he were able to work longer than three hours per day, the difficulty he would experience in obtaining and retaining employment, given his age and the nature and extent of his work related injuries, would almost certainly result in his earnings being substantially reduced (Summerson v Alcan Australia Ltd [1994] NSWCC 24; (1994) 10 NSWCCR 571);
b) the Arbitrator noted that Mr Ballantyne has a diploma in engineering (Reasons, paragraph 40), but also noted that he has not worked in that field for some time. Given that no specific engineering jobs were identified in the evidence as being suitable for Mr Ballantyne in his present circumstances, this submission has no merit;
c) given that Mr Ballantyne earned only $15.00 per hour (assuming a usual working week of 38 hours) in his pre-injury work with Toll, it is unrealistic to suggest that he is now able to earn $40.00 per hour after his injury, and
d) the Arbitrator did not err in finding Mr Ballantyne’s ability to earn to be $255.00 per week.
The Arbitrator’s analysis of Mr Ballantyne’s ability to earn was appropriate and discloses no error. I agree with it.
Exercise of Discretion
Toll submits that the Arbitrator erred in failing to take into account relevant matters in considering the exercise of her discretion in section 40(1) of the 1987 Act in that she:
a) failed to have regard to Mr Ballantyne’s non work-related medical conditions affecting his left leg and both shoulders. This is particularly so in circumstances where Dr Bleasel assessed him to have an 18% left upper limb impairment as a result of his left shoulder condition;
b) failed to have regard to Mr Ballantyne’s other medical conditions, including his heart condition which resulted in him having surgery in 2004, and
c) failed to take into account Mr Ballantyne’s admission that he has not sought any employment since the accident.
Mr Ballantyne submits that the Arbitrator was alive to the fact that she had a discretion under section 40(1) and she decided not to exercise her discretion because she was not satisfied on the evidence that she should do so.
Before the Arbitrator, counsel for Toll submitted at T29.44:
“Exercise of discretion? Well, so long as ‑ I think the correct approach is to isolate only those injuries that are relevant, find out what his ability to earn is referable to those injuries. Once that’s done, the mathematical difference would then truly reflect, and properly reflect, his workers compensation entitlement, and I think it would be leading you into error to ask you to then exercise your discretion further to reduce such a mathematical difference.”
Save that the Arbitrator did not accept that Mr Ballantyne’s neck and back injuries were irrelevant (as had been urged by Toll’s counsel), the Arbitrator adopted the approach urged by counsel. She isolated the incapacity resulting only from those injuries that were relevant, that is, those injuries that were found by the first Arbitrator to have resulted from the accident – the head, neck and back injuries – and assessed Mr Ballantyne’s ability to earn having regard to how those injuries affected his ability to earn. That having been done, Toll now argues on appeal that the discretion should be used to further reduce Mr Ballantyne’s entitlement. This approach is inconsistent with the approach taken by Toll before the Arbitrator. Had it been raised at the arbitration, Mr Ballantyne may have wished to give evidence on these issues. In these circumstances, this different approach should not be permitted on appeal (see generally Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Water Board v Moustakas (1988) 180 CLR 491 and University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483).
If I am wrong in this approach and Toll is entitled to raise the ‘discretion’ issue on appeal, I would have no hesitation in rejecting it. First, there is no evidence of the problem with Mr Ballantyne’s left knee and whether it has had or is having any impact on his ability to earn. Second, in respect of Mr Ballantyne’s shoulders (in particular, his left shoulder), there is no specific evidence of the impact that Mr Ballantyne’s shoulder problem is having on his ability to earn. Apart from the bald assertion that the Arbitrator erred in failing to have regard to the shoulder problem in the exercise of her discretion, no submissions have been made on appeal as to why the award should be reduced because of Mr Ballantyne’s shoulder condition. In any event, the Arbitrator isolated out and assessed Mr Ballantyne’s entitlement to compensation based on the consequences of his proven work injuries and excluded the shoulders. In these circumstances, no further reduction in the exercise of the discretion is warranted or appropriate. Third, whilst Mr Ballantyne underwent heart surgery in 2004 there is no evidence of his current heart condition or if it is likely to impact on his earning capacity. Last, the submission that the discretion should be exercised in circumstances where a worker is not seeking employment is incorrect and is contrary to the Court of Appeal’s decision in Mitchell v Central West Area Health Service (1997) 14 NSWCA 526 at 534.
DECISION
The Arbitrator’s determination of 26 October 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
18 April 2008
I NING DONG CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
3
10
0