Toll Pty Ltd v Quinn - [2007] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Toll Pty Ltd v Quinn [2007] NSWWCCPD 63
APPELLANT:  Toll Pty Ltd
RESPONDENT:  Anthony Quinn
INSURER:Self-Insured
FILE NUMBER:  WCC2501-06
DATE OF ARBITRATOR’S DECISION:          4 August 2006
DATE OF APPEAL DECISION:  23 February 2007
SUBJECT MATTER OF DECISION:                Worker’s credit; reasons; weight of evidence.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent:   Bryden’s Law Office

ORDERS MADE ON APPEAL: For the reasons set out in this decision, the Arbitrator’s findings and orders dated 4 August 2006 are confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal at the maximum rate allowable under the costs regulations, Schedule 6, table 4 of the Workers Compensation Regulation 2003.

BACKGROUND TO THE APPEAL

On 22 June 2006 Toll Pty Ltd (‘the Appellant Employer/Toll’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, delivered on 25 May 2006 but not formally recorded in a Certificate of Determination until dated 4 August 2006.

The Respondent to the Appeal is Anthony Quinn (‘the Respondent Worker/Mr Quinn’).

Mr Quinn was born on 16 December 1957 and has worked with Toll as a driver/loader for approximately 28 years. His work required him to drive a large semi trailer fitted with large metal gates (‘the gates’), which were removed manually to allow access during loading and unloading. The gates were approximately 180cm high and weighed over 20 kilograms (see Mr Quinn’s statement 17 October 2005, paragraph six).

On 17 April 2003 Mr Quinn was lifting one of the gates on his truck when he alleges he sustained injury to his neck and left shoulder. He completed an ‘Early notification and register of injuries’ form (‘report of injury form’) on the same day and a compensation claim form on 13 May 2003. Both forms describe the cause of injury as “lifting gate onto semi-trailer” and identify the injury as being to the left neck and left shoulder. The report of injury form also noted “left index finger numb”.

He continued to work but predominantly on light and restricted duties. In May 2003 he was admitted to Bankstown Hospital for cervical traction and physiotherapy. After a period in hospital for traction, he underwent surgery to his left shoulder on 15 October 2003. On 18 December 2003 he underwent surgery to his neck. After a period off work to recover from that surgery he returned to work on light duties gradually returning to full duties though with some difficulty and restriction.

In his Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 February 2006, Mr Quinn sought lump sum compensation in respect of 25% whole person impairment as a result of the injuries sustained by him on 17 April 2003. By its Reply filed in March 2006 Toll identified the issues in dispute as being “all issues in dispute for the reasons disclosed in documents and evidence” (see Reply Part 3 Dispute Details). This is an unacceptable method of completing a Reply. The purpose of the Reply is to properly and fairly identify the issues in dispute in the case. A Reply expressed in the terms used in the present matter does not achieve that end and is inappropriate. The practice of using such a Reply should not continue and may result in an employer finding itself the subject of an adverse cost order, if a worker is put to proof on matters not properly identified in the Reply and which are subsequently not pressed.

The matter was listed for conciliation and arbitration on 25 May 2006 when it proceeded to Arbitration. In an extempore decision the Arbitrator found in favour of Mr Quinn.

Toll seeks leave to appeal that 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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.

The Appellant Employer challenges the Respondent Worker’s entitlement to recover any compensation and, therefore, the threshold in section 352(2)(b) is also 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.”

The Appellant Employer submits that the appeal cannot be dealt with on the papers and requires a hearing before a Presidential member because a transcript was not available and the matter involves difficult issues (Appellant Employer’s submissions, 22 June 2006). Since those submissions were made, a transcript was forwarded to the parties on 12 July 2006 and both parties have made further detailed submissions.

Given that the transcript is now available and the parties have made additional submissions dealing with it, I do not believe an oral hearing is necessary. In addition, I do not believe that the issues are so difficult or complex that an oral hearing will further elucidate them.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of these documents, 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.

OTHR PRELIMINARY MATTERS

By a direction issued by the Commission on 27 June 2006 the Respondent Worker was to file its Notice of Opposition to the Appeal by 19 July 2006. That was not done.

By letter dated 15 August 2006 the Commission invited both parties to make further submissions as the transcript had been forwarded to them on 12 July 2006. No time limit was set for the making of those submissions.

On 11 September 2006 the Commission issued a direction that the Appellant Employer file its submissions in support of the appeal on or before 25 September 2006 and the Respondent Worker file its submissions in reply on or before 9 October 2006. The Appellant Employer filed its further submissions by facsimile on 25 September 2006. The Respondent Worker wrote to the Commission on 20 October 2006 seeking an extension of time in which to file his response.

The Respondent Worker filed his response on 3 November 2006. Those submissions did not deal with the Appellant Employer’s submissions of 25 September 2006 or with any relevant issues. The submissions of 3 November 2006 argue that the appeal filed by the Appellant Employer on 22 June 2006 failed to comply with Part 13 Rule 77 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) (now set out in Part 16 Rule 16.2 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) and should be dismissed. I reject that submission. The document filed on 22 June 2006 clearly complies with the Rules. However, because of the unavailability of transcript at that time, the Appellant Employer was unable to complete its submissions in support of the appeal.

Due to the fact that the submissions of 3 November 2006 did not deal with the Appellant Employer’s submissions, a further direction was issued by the Commission on 7 November 2006 extending time for the Respondent Worker to file its submissions to 17 November 2006. The Respondent Worker complied with that direction by filing detailed submissions on 17 November 2006.

Further issues arose because the Respondent Worker assumed in its submissions filed on 17 November 2006 that the Appellant Employer was not pursuing the grounds of appeal set out in the submissions filed on 22 June 2006, or, in the alternative, it was argued that those grounds should be struck out because of none compliance with Rule 77. Accordingly, the Respondent Worker’s submissions of 17 November 2006 only address the points raised by the Appellant Employer in its “Further Submissions” filed on 25 September 2006. In order to avoid confusion and any potential unfairness to either party, the Commission issued the following direction on 12 December 2006:

“1. Leave is given to the Appellant Employer to rely on the grounds of appeal set out in the Appeal Against Decision (‘the appeal’) of Arbitrator filed on 22 June 2006.
2.The Respondent Worker is to file and serve submissions (‘the Respondent Worker’s further submissions’) on or before 4pm Monday 8 January 2007 addressing the grounds of appeal set out in the appeal filed by the Appellant Employer on 22 June 2006.

3.Leave is given to the Respondent Worker to rely on his submissions filed on 17 November 2006.

4.The Appellant Employer is to file and serve submissions (‘the Appellant Employer’s further submissions’) on or before 4pm Monday 22 January 2007 in response the Respondent Worker’s further submissions and in response to the Respondent Worker’s submissions filed on 17 November 2006. The Respondent Employer’s further submissions may only deal with matters and issues raised in the Respondent Worker’s further submissions and his submissions of 17 November 2006.”

No further submissions have been filed by or on behalf of the Respondent Worker. On 22 January 2007 the Appellant Employer filed additional written submissions by facsimile with the original being date stamped by the Commission on 24 January 2007. On 8 February 2007 the Commission received a letter from Mr Quinn’s solicitor advising that he had received the Appellant Employer’s submissions of 22 January 2007 and that he did not wish to make any further submissions on behalf of Mr Quinn.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 4 August 2006, records the Arbitrator’s orders as follows:

“FINDINGS:
1.The Applicant suffered an injury to his cervical spine and left upper extremity on 17/4/03 and his employment was a substantial contributing factor to that injury.

ORDERS:
1. This matter is referred to an AMS for assessment of permanent impairment.
2.The video tendered by the Respondent is admitted into evidence by consent.
3.The reports of Dr Smith dated 27/4/06 are admitted into evidence by consent.
4.By consent the parties have leave to file and serve by 21/6/06 all documents upon which they seek to rely which have been produced as a result of the Directions for Production served in this matter.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)failing to have any proper regard to the evidence indicating that any condition from which Mr Quinn suffered existed prior to the alleged injury on 17 April 2003;

(b)accepting Mr Quinn’s evidence concerning the occurrence of the alleged injury where his allegations were unreliable and demonstrated to be false and were not independently corroborated;

(c)finding in favour of Mr Quinn despite indicating that she (the Arbitrator) was unable to determine whether what Mr Quinn said was true or not;

(d)failing to have any proper regard to the onus of proof Mr Quinn carried;

(e)failing to find that Mr Quinn had not discharged the onus of proof;

(f)failing to have any proper regard to the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’), and, in particular, to section 9A(2);

(g)failing to give any adequate reasons for any finding in respect of the section 9A issue;

(h)failing to address and determine the issue of Mr Quinn’s credit and whether his evidence could be accepted;

(i)failing to have any proper regard to the adverse inference against Mr Quinn by reason of Mr Quinn’s failure to call evidence to corroborate his allegations;

(j)failing to have any proper regard to the hospital and medical records admitted into evidence;

(k)asserting that the only issue in the case was whether Mr Quinn suffered an injury and whether his employment was a substantial contributing factor to that injury, and

(l)considering as evidence information which was not evidence.

SUBMISSIONS BEFORE THE ARBITRATOR

To properly understand the Appellant Employer’s case on appeal it is necessary to consider in some detail the way it was presented before the Arbitrator. Before the Arbitrator and on appeal the Appellant Employer was represented by Mr Macken, solicitor, who presented his client’s case in the following way:

a) Mr Quinn said in his statement of 17 October 2005 that he had significant problems with his neck because it was still stiff and painful and he had difficulty moving his neck forward or backwards (Mr Quinn’s statement paragraph 19). In respect of his left shoulder Mr Quinn said at paragraph 21 of his statement:
“I still continue with significant problems with my left shoulder. My left shoulder and arm is weaker than my right. There has been significant decrease in strength. It is still painful. I have difficulty in undertaking heavy or repetitive lifting that requires excessive use of the left arm and the shoulder. I have difficulty with overhead work.”

b) Mr Quinn told Dr Conrad on 3 November 2003 that it was very difficult for him to lift his left arm above shoulder level;
c) this evidence from Mr Quinn is to be contrasted with the activities shown in the video taken in May 2005 which showed Mr Quinn climbing a ladder to the top of a palm tree and using both arms to saw branches and then push them into a ‘wheelie-bin’;

d) reference was then made to the opinion of Dr Un (wrongly referred to as Dr Oon in the transcript), general practitioner, in his report of 11 October 2003, based on Mr Quinn’s history, that his employment was a substantial contributing factor to the injury on 17 April 2003;

e) Mr Macken then said “The issue is: can you accept the history given?” (transcript page 22 line 42);

f) reference was made to Mr Quinn having told every doctor that he’d not previously had a problem with his left shoulder when in fact he did have a prior injury to his left shoulder with Mayne Group and submitted a claim for it (transcript page 23 line five);

g) next Mr Macken referred to a claim Mr Quinn settled in the District Court in 1997 arising out of an injury to his right ankle on 2 March 1994 (transcript page 23 line 53). One of Mr Quinn’s disabilities arising from that injury related to climbing ladders. Mr Macken dealt with this matter at page 24 line six as follows:
“He says he injured his ankle. And what does he say his difficulties are? Difficulties utilising stairs or ladders. Ladders!

Well, obviously he was [sic- not] telling the truth when he gave those particulars as part of those proceedings. We’ve seen him climbing up and down a ladder without any problem, but he had no compunction at all about getting damages for the difficulties he had climbing up and down ladders because of an alleged right ankle problem. None at all.” (the reference to “was telling the truth” is clearly an error and should be “was not”);

h) next Mr Macken referred to a claim by Mr Quinn filed in the Compensation Court of NSW for a back injury, said by Mr Macken to arise out of the 2 March 1994 injury (claim 22255/97) in which he recovered compensation in the sum of $7,800.00 in respect of 13% permanent impairment of his back (see Terms of Settlement dated 27 October 1998). Mr Macken made the following submission on this issue at page 24 line 33:

“Now, that is a pattern that indicates a repeated and deliberate attempt to happily falsify statements to court in order to secure the payment of compensation. That’s the only possible way of looking at those documents. There can be no other explanation for somebody saying, ‘Oh, look, I’ll get some money off my employer for the back part of 2 March 1994 and then I’ll get some damages off some other people for an ankle which stops me - interferes with me climbing up and down stairs and ladders, you know, interferes with me walking, has its consequences’ - and these are from the particulars:
By reason of the injuries arising from the accidents, the plaintiff is restricted in attending to work of a physical nature involving lifting, standing, walking, use of stairs, use of ladders and the like.

And using those particulars to get damages despite what we’ve seen about the truth or otherwise of those particulars. Then he says:
By reason of the above restrictions, the plaintiff is at a severe disadvantage on the open labour market.

He claims damages for [$]125 net per week, 20 per cent reduction in earning capacity. Now, that’s the same thing for which the claimant went to the employer and said, ‘Give me $9,000 for impairment of my back,’ 15 per cent impairment of the back, and recovered for 13 per cent impairment of the back - same injury.” (emphasis added);

i) Mr Macken submitted that Mr Quinn was “trying to say to the doctors he’s never had a neck problem” (transcript page 25 line 21) but the records from the Campbelltown Hospital dated 14 July 1999 read “pinched nerve in neck” (transcript page 25 line 25). He then submitted that:
“This is not a neck strain; this is an alteration in the pathological processes in his neck, perfectly capable of explaining why he might have a disc lesion there, perfectly capable of demonstrating why in due course having had a pathological alteration of his neck of such a long-standing process that he might in due course come to surgery for it. No question about it. He was discharged with a cervical collar. That’s what the records say: ‘Cervical collar with drugs to take for his neck problem’.

It is [sic] really open to be accepted that somebody who’s been to hospital having had a clunk [sic] in their neck and a pinched nerve in their neck, by their own description, and discharged from hospital with a cervical collar could then say to doctors later on, ‘I’ve never had a problem with my neck before. No problem with my neck before’?” (emphasis added);

j) Mr Macken then referred to the records of Dr Lodin (wrongly referred to as Dr Logan in the transcript) which refer, among other things, to left shoulder pain in 1998 (transcript page 25 line 50) and submitted at page 26 line one:

“So he remembers the left shoulder pain in 1998, even though it was six years before when he actually sustained the injury, but wants you to believe that he forgot it when he went to see Dr Ellis or Dr Conrad or he omitted to mention it or, ‘It should have been obvious to them. I had scarring associated with my pectoral.’ That’s just not right. It’s just not right. He’s given false histories, false histories again.”

k) further references were made to Dr Lodin’s notes which referred to Mr Quinn complaining of right shoulder and neck pain in November 1996 and Mr Macken submitted that Mr Quinn “knows he’s had prior problems with his neck and he’s just deliberately not told the doctor” (transcript page 26 line 45);
l) Mr Macken then submitted that the Respondent Worker tried to connect his low back pain to the injury on 17 April 2003 (transcript page 26 line 52);

m) reference was then made to Mr Quinn experiencing low back pain from soccer injuries in 1995 which “didn’t stop him claiming the lump sum compensation…for the low back, but, no, injured his back following soccer in 1995” (transcript page 27 line seven);

n) after again referring to the District Court claim for the right ankle injury Mr Macken referred to a “litany” of “falsehoods” (transcript page 27 line 34);

o) Mr Macken then referred to a reference to neck pain in Dr Un’s notes on 15 July 1993 (transcript page 28 line 11), and

p) reference was then made to Dr Edwards report of 19 July 2005 (transcript page 29 line seven) and it was submitted that there was no reference to neck pain until Mr Quinn saw Dr Un in June 2003 when Mr Quinn gave him, “along with all the other doctors” (transcript page 30 line 28), a false history.

SUBMISSIONS ON APPEAL

The Appellant Employer submits that:

a)   the Arbitrator wrongly asserted that the only decision she had to make was whether Mr Quinn sustained an injury and whether employment was a substantial contributing factor to that injury. The issues in dispute that the Arbitrator had to determine were:
·     injury;
·     Mr Quinn’s credit;
·     causation;
·     whether Mr Quinn had discharged the onus of proof, and
·     whether Mr Quinn’s employment had been a substantial contributing factor to his injury;

b) the decision does not disclose the Arbitrator’s reasons for arriving at her conclusion;
c) the Arbitrator considered “as evidence information which was not evidence” (Appellant Employer’s submissions 25 September 2006, paragraph two);

d) the Arbitrator erred “in failing to find that Mr Quinn had not discharged the onus of proof to the requisite standard” (Appellant Employer’s submissions 25 September 2006, paragraph three);

e) the Arbitrator failed to properly consider or address the matters relevant to determining whether employment was a substantial contributing factor to the injury and failed to give any reasons on this issue;

f) the Arbitrator failed to make any properly considered determination in respect of Mr Quinn’s credit and whether his evidence could be accepted, and

g) Mr Quinn was not a witness of truth and his claim should have failed.

The Respondent Worker submits:

a) the Appellant Employer did not take issue at the time of the Arbitrator’s decision that she had failed to decide any matter in dispute and did not seek additional reasons (260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96);
b) Mr Quinn worked for the Appellant Employer (in its different corporate guises) for 28 years and it was well aware of his medical history, having had past claims from him;

c) Mr Quinn’s job was a heavy physical job as a truck driver actively involved in loading and unloading his truck for 60 hours per week;

d) by reason of the nature of his work Mr Quinn suffered numerous injuries over his 28 years with the Appellant Employer, most of which were self limiting and after all of which he was able to return to his full normal duties;

e) as a result of his earlier injuries Mr Quinn suffered certain permanent disabilities and took appropriate legal proceedings and recovered compensation for those disabilities. There is no evidence that any claim made by Mr Quinn was other than legitimate or that he “received one cent more than his genuine and legitimate entitlements” (Respondent Worker’s submissions 17 November 2006, page three paragraph (e));

f) on 17 April 2003 Mr Quinn lifted a gate in the course of his employment with the Appellant Employer. The gate jammed slightly and as it came free he lost control of it momentarily and it went over his head. As he tried to regain control of the gate he developed severe pain in his neck and left shoulder and symptoms in his hand;

g) the injury was immediately reported and an injury report form was completed and signed by the first aid attendant “S. Parkes”. The first aid attendant recorded a history of injury consistent with the case Mr Quinn presented to the Arbitrator;

h) the first aid officer was not called to give evidence that Mr Quinn’s presentation was other than consistent with the note in the injury report form;

i) no evidence was called by the Appellant Employer that Mr Quinn was in any way restricted in the performance of his duties in the days leading up to 17 April 2003;

j) Mr Quinn’s symptoms in his fingers (noted on the report of injury form) were consistent with the ultimate diagnosis of a disc protrusion;

k) on 17 April 2003 Mr Quinn was taken to the Appellant Employer’s doctor, Dr Lau;
l) the first record produced by Dr Lau is dated 29 April 2003 and is consistent with Mr Quinn’s evidence;

m) in May 2003 Mr Quinn was referred by Dr Lau to Dr Clarke, an orthopaedic specialist;

n) Dr Clarke and Dr Lau both received a history that Mr Quinn injured his left pectoralis muscle ten years before but there had been no continuing problem until 17 April 2003;

o) by the time Mr Quinn saw Dr Clarke on 20 May 2003 he was complaining of marked cervical pain and difficulty rotating his neck;

p) Dr Clarke diagnosed Mr Quinn as having an acute cervical disc protrusion leading to nerve root irritation;

q) an MRI scan performed on 30 May 2003 revealed a “large left postero lateral disc protrusion at the C5/6 level causing displacement of the cervical spinal cord and possible encroachment of the C6 nerve root”;

r) Mr Quinn underwent surgery to his left shoulder on 15 October 2003. That surgery did not resolve the pain radiating down his left arm;

s) Mr Quinn saw Dr Sheridan on 17 June 2003 and underwent surgery to his cervical spine on 18 December 2003;

t) Mr Quinn had a good result from the surgery with his left arm and neck symptoms being largely alleviated;

u) by January 2004 Mr Quinn returned to full duties;

v) the Appellant Employer’s case at the Arbitration was the Arbitrator could not accept “anything the applicant says…because the records prove it to be false” (transcript page 27 line 40) and that Mr Quinn “falsely made up this history about what his problem resulted from so he could get compensation and he’s still trying to do it…” (transcript page 55 line 52). Such an “unflagged attack visited substantial procedural unfairness on” Mr Quinn (Respondent Worker’s submissions, paragraph 19);

w) where an allegation of fraud in going to be made there are ethical considerations and matters of procedural fairness that need to be followed;

x) the Appellant Employer must show that the Arbitrator’s decision is affected by some error of law, fact or discretion and findings on credit are only to be disturbed where there is a demonstrable error or unfairness (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6);

y)   Mr Quinn’s evidence was corroborated by the following:
·     the injury was reported on the day it occurred;
·     the report of injury form was completed by the first aid officer;
·     Mr Quinn’s case was consistent with the complaints recorded by the first aid officer;
·     the first aid officer was not called;
·     no evidence was called that in the days leading up to 17 April 2003 Mr Quinn was complaining of problems with his neck or left arm or that he had injured himself somewhere other than at work;
·     the histories to the doctors were consistent in terms of the mechanism of injury;
·     there is no explanation of Mr Quinn’s problems after 17 April 2003 other than his injury on that day;
·     all doctors accepted that the mechanism of injury was consistent with Mr Quinn’s complaints, and
·     Mr Quinn’s main complaint following the 17 April 2003 injury was of new symptoms, namely, pain radiating down his left arm to his fingers. These complaints were consistently in the C6 nerve root distribution and were not relieved by the shoulder surgery but were relieved by the neck surgery on 18 December 2003.

z) the fact that Mr Quinn returned to work within one month of the operation was not consistent with someone who made up an injury to obtain compensation;
aa) the Appellant Employer did not produce any evidence that Mr Quinn’s prior claims were anything other than genuine;

bb) Mr Quinn’s prior upper limb problem was to his left pectoralis muscle, not his shoulder. Mr Quinn underwent surgery for that problem and the resulting scar was obvious for any examining doctor to see at the time of examination of the left shoulder;

cc) Mr Quinn’s complaints of prior neck and shoulder pain were of relatively modest degree and had not prevented him from working 60 hours per week in the period leading up to 17 April 2003. The last recorded complaint by Mr Quinn of neck pain before 17 April 2003 was on 14 July 1999. There was no evidence that that complaint was anywhere near the same category as those made on and after 17 April 2003;

dd) the last recorded complaint of shoulder pain was April 1999 (possibly April 1998) and an ultrasound at that time was clear;

ee) the video tendered in evidence showed Mr Quinn engaged in light gardening work in his front yard over a couple of hours. This activity was insignificant compared to the work duties Mr Quinn was performing for 60 hours per week at the time the video was taken. The video went only to the question of ongoing disability rather than injury;

ff) the issue was whether the Arbitrator accepted Mr Quinn and she was clearly alive to that issue. Her finding was that she did accept Mr Quinn (transcript page 61 line 26);

gg) the issues of injury and substantial contributing factor were intimately intertwined with the issue of credit and it was on that basis that the Arbitrator found in favour of Mr Quinn. Once the Arbitrator accepted Mr Quinn’s version of the injury and mechanism thereof the other matters fell into line on the basis of the largely agreed medical picture;
hh) employment must be a substantial contributing factor to the event causing the injury not the ongoing incapacity (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725);

ii) the Appellant Employer was trying to run a case of fraud and put a number of bare facts before the Arbitrator, but did not prove that those facts were necessarily consistent with either Mr Quinn telling lies or committing fraud. There were gaps in the evidence where innocent inferences could be drawn and the Arbitrator made no error in recording the Respondent Worker’s submissions dealing with those inferences at page 60 lines 31 to 50;

jj) the weight to be attached to the evidence was a matter for the Arbitrator;

kk) the Arbitrator accorded more weight to the contemporaneous events rather than to whether Mr Quinn told past untruths, and

ll) the Arbitrator noted the matters raised by the Appellant Employer and decided that Mr Quinn should be believed. That finding was open to her.

In response to the Respondent Worker’s submissions the Appellant Employer made the following submissions on 22 January 2007:

a) Mr Quinn’s past claims were not made on the Appellant Employer but on a different legal entity, Mayne Group Limited;
b) the assertion that Mr Quinn’s job was heavy was not the subject of evidence;

c) Mr Quinn’s prior injuries were not self limiting but resulted in the payment of lump sum compensation for permanent impairment;

d) Mr Quinn failed to disclose important, relevant historical facts and this reflected on his credit;

e) Mr Quinn carries the onus of proving disputed issues and the failure to call a witness relevant to those issues gives rise to an adverse inference against Mr Quinn;

f) it is disputed that Dr Lau was a ‘company doctor’;

g) Dr Clarke’s history was inconsistent with other evidence in the case;

h) because of Mr Quinn’s lack of credit he has not discharged the onus of proof;

i) the Appellant Employer’s case before the Arbitrator was that the inconsistencies between the histories given by Mr Quinn and the documents admitted and the inconsistencies between his complaints and the activities in the video were such that his assertions should not have been accepted;

j) Mr Quinn’s prior complaints were not disclosed at all and were deliberately omitted from histories given;

k) Mr Quinn’s medical case was tainted by reason of the inaccurate history provided by Mr Quinn;

l) the course adopted by the Arbitrator was to refuse to allow any cross examination and that resulted in procedural unfairness to Toll;

m) fraud was neither pleaded nor alleged;

n) the Arbitrator failed to deal with the issue of credit;

o) Mr Quinn’s own evidence was not corroboration of his claim;

p) the Arbitrator did not identify the contemporaneous or corroborative evidence on which she relied in reaching her conclusion, and

q) reliance is placed on the submissions made at the Arbitration hearing as to the inaccuracies in the histories provided by Mr Quinn and his failure to disclose relevant matters.

ARBITRATOR’S FINDINGS

The Arbitrator noted the decision she was required to make was whether Mr Quinn suffered an injury arising out of or in the course of his employment and whether his employment was a substantial contributing factor to that injury (transcript page 59 line 11). She carefully recorded the Appellant Employer’s submission that Mr Quinn could not be believed about the injury because of his previous undisclosed problems with his left shoulder and neck and because of the activities shown in the video, which were inconsistent with his presentation to various doctors. She also noted that there had been previous complaints “of a reasonably significant nature to the left shoulder and neck” and that there had been a “significant previous injury to the left shoulder” (transcript page 60 line two).

The Arbitrator agreed that “on the face of it” not all of the medical histories recorded all of Mr Quinn’s previous injuries (transcript page 60 line 22) and posed the question as why that occurred. She referd to the submissions of both parties and in respect of the Respondent Worker’s she said at page 60 line 31:

“The applicant’s counsel gives a number of suggestions for why they may not be recorded. One, the applicant works in a fairly robust work environment. He is back at work and has always returned to work after these injuries after short periods of time off, working, you know, up to 60 hours a week and has constant scrapes, cuts, injuries, just within the nature of the work, and that it may be that he considered any problem that he’s previously had, if it’s now healed, is not a problem that needs to be disclosed. That has a ring of truth about it to me.”

She then added at page 60 line 44:

“The applicant says that the examinations can be over in a very short period of time. That may be the case. And he may well have disclosed them. They mightn’t be recorded. In addition, the applicant’s counsel says to me that it would be obvious to any doctor doing a proper examination that there had been previous difficulties with the left shoulder.
Now, I can’t say whether or not they are true. I say in relation to the first submission by the applicant’s counsel that that has a ring of truth about it to me. The applicant wasn’t given an opportunity today to deal with those matters and the agreement between the parties was that we would proceed on the basis of submissions. So I take on board all of the submissions made on both sides and I have to say that I do have difficulty with what seemed to me to be reasonably significant injuries not being disclosed to people at a later date. But I hear a number of explanations for why those things weren’t disclosed. What I say, though, is that the video footage, where that contrasts with the applicant’s statement, the information that is left out of the medico-legal report as well as what is in the medico-legal report really goes to what impairment, if any, flows from the injury that the applicant says he suffered as at 17 April 2003.”

The Arbitrator dealt with the credit issue at page 61 line 22:

“I’ll just say that credit is important, and what I look at more carefully when there is an issue about credit is the contemporaneous and corroborative evidence that’s before me. And I say, taking everything into account, I accept to the civil standard that the applicant did suffer an injury at work on 17 April 2003 to his left shoulder and back [sic] and I say to the civil standard I accept again that his employment with this respondent was a substantial contributing factor to that injury.”

The above reference to ‘back’ should be ‘neck’ and I have made that assumption in the balance of my reasons.

DISCUSSION AND FINDINGS

I agree that the issues of injury and substantial contributing factor were interrelated to the issue of Mr Quinn’s credit. If the Arbitrator accepted Mr Quinn’s version of the injury and mechanism of injury then it is logical that all other matters fall into line. The problem is that the Arbitrator did not make an express finding of whether she accepted or rejected Mr Quinn’s credit. She referred to looking more carefully at the “contemporaneous and corroborative evidence” when credit is important, but did not identify the evidence she looked at or which evidence she accepted and which she rejected. Whilst she found that she accepted that Mr Quinn did suffer an injury at work on 17 April 2003 to his left shoulder and neck, she gave no reason for making that finding.

The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311).

Relevantly, Rule 15.6 of the 2006 Rules provides that:

“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.

(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”

To succeed in having the decision set aside on this ground Toll must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise the statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).

The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

A party is entitled to a decision based on findings and reasons, which enable “a proper understanding of the basis upon which the verdict entered has been reached” (Pettit v Dunkley [1971] 1 NSWLR 376 at 382). An Arbitrator must reveal his or her process of reasoning to enable the parties to understand why the decision was made and for the purposes of any appellate review (see Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA). Reasons must be read in the context of the decision as a whole and a degree of latitude should be allowed in the expression of those reasons (per Clarke JA in Mashiati v Australian Poultry Ltd (1995) 11 NSWCCR 345 at 353).

After careful consideration of this issue it is my view that the Arbitrator has failed to properly analyse or consider the evidence and failed to reveal her process of reasoning to enable the parties to understand why she concluded that Mr Quinn injured his left shoulder and neck on 17 April 2003. It is not clear if the Arbitrator accepted or rejected Mr Quinn’s credit and it is not known which of the “contemporaneous and corroborative evidence” the Arbitrator relied upon to ground her final conclusion. In these circumstances it follows that the Arbitrator has failed to properly exercise her statutory duty to fairly and lawfully determine the matter and the decision must be revoked.

The question that then arises is whether the matter should be remitted for redetermination before a different Arbitrator or whether I should conduct the redetermination. No oral evidence was given before the Arbitrator. No finding has been made as to Mr Quinn’s credit. In these circumstances I am in as good a position as an Arbitrator to conduct the redetermination and, in order to save time and costs, that is the course I propose to adopt.

In view of the above finding that the Arbitrator’s decision must be revoked, it is not necessary for me to determine the other ‘grounds of appeal’. However, all of the points made by the Appellant Employer in the appeal and at the Arbitration will be carefully considered in the redetermination set out below.

REDETERMINATION

Mr Quinn’s occupation is and has been for 28 years that of a driver/loader with Toll. Though Toll has changed its legal identity over that period he has obviously regarded his employment as having been continuous with the one corporate group. It certainly involved the same or similar duties over that period. As a driver/loader he did much of the loading by hand until about 1996 when it was mostly done by forklift (Dr Ellis 3 August 2004, page one). However, he was still required to drive a large semi trailer known as a Taut Liner. Along the side of the trailer there was large metal gates, which had been removed and replaced manually by Mr Quinn in the course of his duties. The gates were approximately 180 cm high and weighed in excess of 20 kilograms (Mr Quinn’s statement 17 October 2005, paragraph six). Whilst Mr Quinn’s recent duties may not be as heavy as they were up to 1996, they are still physical and demanding. It is to his credit that he has returned to work after undergoing major surgery to his neck.

Whilst Mr Quinn submits that he was taken to see Dr Lau on 17 April 2003, the first written entry in Dr Lau’s notes after 17 April 2003 is dated 29 April 2003. It reads:

“Lifting trailer gate (20 kgm) & strain
left shoulder/neck on 17/4/03.
C/O pain Lt anterior shoulder & also
left neck
® mainly when relax or sleeping
– OR if working at something
or if warm up.
Couple of days later c/o numbness
of Lt hand finger tips (all 5 of them).
Also numbness left half of middle finger
radially.
O/E. Op scar Lt pectoralis region.
Tender scar tissue of pectoralis muscles.
Also tender Lt trapezius muscles
pain on flexion to Rt not to Lt
From neck
PH of torn Lt pectoralis muscle > 10 yrs
Ago ® operative repair
Lt pectoralis & trapezius muscle
Sprain
Analgesics”

Dr Lau provided Mr Quinn with a medical certificate dated 29 April 2003 which describes how the injury occurred as follows; “lifting trailer gate which slipped & jarred his left arm & shoulder” and gave a diagnosis as “Lt pectoralis & trapezius muscle strain”.

Mr Quinn returned to Dr Lau on 13 May 2003. The doctor’s entry for this date reads:

“ISQ
Soreness in scar (operation) anteriorly
over pectoralis and left trapezius
muscles. [with] flexion & turning head
to the right.
Noticed pain worse after activities &
Not [sic] rest.
Also c/o numbness of left fingers which is
Consistent[with] median nerve compression
at the wrist ® reproducible [with] pressure over
anterior wrist”

Given the above entries there was no basis for Mr Macken’s submission to the Arbitrator that the records from Dr Lau showed Mr Quinn to be “telling untruths” (transcript page 27 line 44).

Dr Lau referred Mr Quinn to Dr Clarke, orthopaedic surgeon, who saw him on 20 May 2003. He took a history of Mr Quinn sustaining a torn pectoral muscle 10 years ago for which he had surgery. He noted that “there were no continuing problems until 17/4/03” when he lifted some gates on a truck and started to experience pain around the left side of his neck “with symptoms radiating across the shoulder and down into his left hand” (report Dr Clarke to Dr Lau 20 May 2003). Mr Quinn complained to Dr Clarke of “marked cervical pain” and of “great difficulty in rotating his neck to the right as this led to progressive pain”. Dr Clarke’s opinion was that:

“He appears to have an acute cervical disc protrusion leading to nerve root irritation.” (emphasis added)

In response to a facsimile sent to him on 22 May 2003 by Kerry Watson, senior claims officer with Toll, a copy of which is not in evidence, Dr Clarke wrote to Toll on 26 May 2003 in the following terms:

“I refer to your facsimile dated 22/5/2003, the contents of which I found most disturbing. Would you please advise me about your medical qualifications? If, as I assume, you have no formal medical training, then I would ask you to refrain from making such comments as were contained in the facsimile.
You were notified on the 20/5/2003 that this patient presented complaining of severe pain around the left side of his neck with symptoms radiating into the upper part of his left arm. He stated that the complaint occurred following a work related injury. Based on his clinical presentation, a diagnosis of an acute cervical disc prolapse was made. He was advised that a CT of the cervical spine was indicated. This was arranged for the following morning but he then telephoned here stating that he could not undergo the investigation due to the pain present. As a consequence, you were notified that he required hospitalisation. Your rather strange facsimile questioning my clinical acumen then arrived.
Mr Quinn was subsequently admitted to Bankstown Public Hospital where he remains an inpatient. He has undergone cervical traction, analgesia and physiotherapy. A CT of the cervical spine was finally able to be performed and this confirmed a left sided disc prolapse at C5/6. He may require further investigation in the form of an MRI scan with a possible view towards surgical intervention. The contents of your facsimile have been fully discussed with the patient and he has been advised to pursue his full legal entitlements.”

An MRI scan was performed on 30 May 2003 and under ‘comment’ the following appears in the report of that date prepared by Dr Sachinwalla:

“On this limited study, there is cervical spondylolisis with a moderate to large left postero-lateral disc protrusion at the C5/6 level with some posterior osteophyte formation causing some posterior displacement of the cervical spinal cord and possible encroachment on the C6 nerve root. …

A smaller left postero-lateral predominantly [sic] disc protrusion is present at the C6/7 level with no definite encroachment on the adjacent neural structures. No other significant change is seen.”

Dr Sachinwalla’s report confirmed that the study was ‘limited’ because of the pain that Mr Quinn was experiencing.

Dr Clarke again wrote to Toll on 3 June 2003 referring to the CT and MRI investigations and stating:

“Both these investigations confirmed my clinical diagnosis of a left sided cervical disc protrusion and it is once more felt that this could have occurred in the manner described at work.”

On 11 June 2003 Mr Quinn saw Dr Un and gave a history that he had injured his left shoulder and neck after he lifted gates onto the side of a semi trailer on 17 April 2003. Based on that history, Dr Un thought that Mr Quinn’s employment was a substantial contributing factor to the injury.

Dr Clarke referred Mr Quinn to a neurosurgeon, Dr Sheridan, who examined him on 17 June 2003. He took a history that Mr Quinn suffered a flare up of neck pain before Easter at work while he was “lifting heavy steel gates and suffered neck, shoulder and left arm pain” (Dr Sheridan’s report 13 April 2004). On examination Dr Sheridan found tenderness, decreased range of movement in Mr Quinn’s neck, an absent left bicep reflex and C6 loss of sensation with pain in the C6 distribution.

An ultrasound performed on Mr Quinn’s left shoulder on 26 June 2003 showed a partial tear of the supraspinatus tendon. Dr Sheridan felt it was appropriate to treat Mr Quinn’s shoulder problem first.

On 15 October 2003 Mr Quinn underwent an arthroscopic acromioplasty with decompression of his left shoulder at the hands of Dr Clarke. At surgery Dr Clarke found the rotator cuff surface was intact though somewhat frayed. After surgery Mr Quinn lost the previous pain and discomfort arising from his left shoulder but his neck symptoms and tingling in his left hand continued.

Dr Conrad examined Mr Quinn for medico legal purposes at the request of his solicitors on 3 November 2003 (report 5 November 2003). Dr Conrad took a consistent history of injury to the left shoulder and neck at work on 17 April 2003 but also recorded that Mr Quinn “denies having injured his neck of [sic] left shoulder prior to the present injuries” (report 5 November 2003, page two). Dr Conrad concluded that as a result of the incident on 17 April 2003 Mr Quinn sustained a two-level disc protrusion and a left shoulder strain.

Mr Quinn returned to Dr Sheridan on 25 November 2003 complaining of continuing pain radiating into his left arm and that the pain down his arm into his hands was worse. A repeat MRI scan showed that the C5/6 disc bulge was worse. Mr Quinn had marked C6 nerve root compression, which was consistent with his worsening arm symptoms. Dr Sheridan sought and was given approval by Toll to perform an anterior cervical discectomy and fusion, which was performed on 18 December 2003.

At review on 24 January 2004 Dr Sheridan noted that Mr Quinn had achieved an excellent result from the surgery and his left arm symptoms had settled completely though he still had persisting stiffness in his neck. By this time Mr Quinn was already back at work on light duties and he asked if he could return to work on full duties. Dr Sheridan felt that that was appropriate, but with a supervised rehabilitation program.

Dr Ellis conducted a medico-legal examination at the request of Mr Quinn’s solicitors on 23 June 2004 (report 3 August 2004) and took a consistent and detailed history of the work incident on 17 April 2003. He noted Mr Quinn’s complaint of neck pain, which he did not have prior to the accident in April 2003 (Dr Ellis 3 August 2004, page three).

The Appellant Employer’s case before the Arbitrator and on appeal is that Mr Quinn has no credit and should not be accepted when he says that he injured his left shoulder and neck at work on 17 April 2003. There are three reasons for this approach. First, the video showing Mr Quinn engaged in activities at his home on 15 May 2005. Second, the fact that medical records reveal that Mr Quinn had left shoulder and neck pain before 17 April 2003 and failed to disclose that fact to the doctors who have examined him for the purposes of his current claim. Third, the fact that Mr Quinn has previously made claims for compensation and damages. There are also ‘other matters’ that are raised by the Appellant Employer which are dealt with below.

The Video

I have viewed the video in question. It shows Mr Quinn in the front yard of his home carrying and then climbing a ladder, cutting branches off a palm tree whilst on the ladder and then cutting those branches into smaller pieces and using his left arm to push them into a ‘wheelie-bin’. The Appellant Employer argues that the activities depicted in the video are inconsistent with Mr Quinn’s statement and his presentation to several doctors.

The relevant part of Mr Quinn’s statement is set out at paragraph (a) in [27] above. Whilst the video does not demonstrate any significant restriction in Mr Quinn’s left shoulder, it also does not show him performing repetitive or heavy lifting.

Dr Ellis noted in his report of 11 April 2005 that Mr Quinn “now has a full range of movement of his left shoulder” and that his grasp is stronger than that of an average man (Dr Ellis 11 April 2005, page three). Mr Quinn told Dr Ellis that his neck continued to be painful and that he could not run because “any impact hurts his neck” (Dr Ellis 11 April 2005, page one). The video did not show Mr Quinn running. Dr Ellis noted that Mr Quinn continued to complain of a stiff, sore neck, but “a hot shower and some movement have a good effect on his neck” (Dr Ellis 11 April 2005, page one). On examination Mr Quinn was noted to have a range of movement of his cervical spine that was “two-thirds the normal range of movement” (Dr Ellis 11 April 2005, page three). In my opinion, the range of neck movement demonstrated in the video was not inconsistent with the restriction noted by Dr Ellis just a few weeks before the video was taken and was not inconsistent with Mr Quinn’s statement at paragraph 19 that he continues to experience pain and stiffness in his neck.

Mr Macken referred the Arbitrator (transcript page 22 line six) to the symptoms noted by Dr Conrad in November 2003, 18 months before the video and, significantly, just a few weeks after the shoulder surgery performed by Dr Clarke on 15 October 2003. At that time Mr Quinn had pain in his shoulder and found it difficult to lift his left arm above shoulder height. Mr Macken then submitted to the Arbitrator:

“I mean, the complaints made to the doctors are just so clearly false. They are false when we see the objective information”.

The reference to “the objective information” was a reference to the video. The video did not establish that Mr Quinn’s complaints were “clearly false”. Mr Macken’s submission, so far as it related to the examination by Dr Conrad, was misleading, inappropriate and wrong.

Mr Quinn’s presentation to the Appellant Employer’s doctors confirms a man who did not exaggerate his condition. Dr Edwards noted in his report of 19 July 2005 that Mr Quinn had a normal flexion of his neck with extension being “slightly” restricted at 30° and rotation limited at 60° in each direction. In respect of the left shoulder Dr Edwards found a slight loss of internal rotation but all other movements were “full range and pain free”. Dr Hughes noted in his report of 5 August 2005 a full range of movement in Mr Quinn’s neck and left shoulder.

Therefore, an examination of the medical reports closest in time to the date of the video reveals considerable consistency between Mr Quinn’s activities in the video and his presentation on examination by the doctors.

A further attack was made on Mr Quinn’s credit because in his District Court claim arising from his 2 March 1994 right ankle injury, particulars were filed stating one of his disabilities to be “difficulty utilising stairs and ladders”. It was argued before the Arbitrator that, as the video showed Mr Quinn climbing a ladder, Mr Quinn was not telling the truth when he gave those particulars and he had “no compunction at all about getting damages for the difficulties he had climbing up and down ladders because of an alleged right ankle problem” (transcript page 24 line 13).

The video did not justify that attack. The District Court particulars did not allege Mr Quinn was unable to climb ladders, but merely that he had difficulty in doing so. The District Court proceedings were settled in April 1997 for $28,000.00. The May 2005 video showed Mr Quinn to have an uneven gait, but whether that was because of his unrelated knee problem (Mr Quinn had a right knee reconstruction in 1997) or continuing problems with his right ankle is unclear. The video did not provide support for the submission made, namely, that Mr Quinn was not telling the truth when he provided particulars of his right ankle disability in his District Court claim. There are numerous entries in Dr Un’s notes relating to Mr Quinn’s right ankle problems. For example, on 5 January 2002 Mr Quinn was taking the anti-inflammatory medication, vioxx, for his right ankle symptoms and Dr Un recommended physiotherapy and rest.

The video did not damage Mr Quinn’s credit on the issue of injury or incapacity.

Medical Histories

The challenge on this issue was that Mr Quinn “told every doctor he never previously had a problem with his left shoulder” (Mr Macken’s submissions to the Arbitrator, transcript page 23 line five). It is correct that the histories given to the doctors relating to Mr Quinn’s previous neck and left shoulder symptoms were incomplete. Dr Edwards recorded that Mr Quinn “denied any similar symptoms previously” but said he “may have some stiff necks on occasions” (Dr Edwards 19 July 2005 page two). Dr Hughes recorded that Mr Quinn “had never had any problems with his neck or shoulder previously” (Dr Hughes 5 August 2005 page two). Dr Ellis had no history of previous left shoulder problems and recorded that Mr Quinn had not had his current neck symptoms “prior to the accident in April 2003 (Dr Ellis 3 August 2004, page three). Dr Conrad’s history is noted at paragraph [59] above.

Mr Quinn’s full medical history reveals that he has had pain in both his neck and left shoulder in the past. It also reveals that Mr Quinn had many work incidents over the last 28 years that have forced him to seek medical treatment.

Dr Un has been Mr Quinn’s general practitioner since 1989 but only his notes from 30 September 1991 were in evidence. So far as is relevant to the present claim, Dr Un recorded:

12 August 1992 “Pain/grinding (L) shoulder”. [The doctor’s diagram indicates the site of the pain to be the in the upper chest region below the clavicle]

15 July 1993 “climbed up truck by pulling himself up with both hands –
felt ‘clunk’ at base of neck – pain worse that night ® hosp. Had x ray – NAD – given time off …next wk – want [sic] to see if can return to work earlier”

17 December 1999 “2/7 ago pain (L) neck ® shoulder
worse yesterday & today – no obvious cause – no paresthesia (L) upper arm
tender (L) trapezius”

Dr Lodin’s notes are more difficult to read but the following extracts can be deciphered:

March 1998“Pt H of pain in the
(L) side of his chest
pain is sharp
Pt said the pain start [sic] about 9/7 ago on
9/3/98 at work
at about 8.15AM
when Pt lifting
heavy object at work
Pt reported the incident
to his supervisor
Pt H of pain in the same area after injury at work about 3 y ago”

20 March 1998 “Pt still feeling same
pain in his (L)
shoulder But pt said he can
cope with work”

4 April 1998               “Pt still feel [sic] (L) shoulder pain”
19 October 1998        “injury to left shoulder on 18 September 1998 whilst working – 100kg weight fell from top of truck on (L) shoulder – pain is getting worse – pain radiating to (L) hand and tingling fingers”
27 October 1998        “Pt happy to go back to normal duties – advise for R/V if any pain”

As a result of Mr Quinn’s left shoulder symptoms in 1998 he underwent an ultrasound on 1 April 1998, which showed the left rotator cuff to be normal with no tear, calcification or scar on the left supraspinatus, subscapularis or infraspinatus muscles. There was no impingement of the rotator cuff seen with elevation of the arm. There was no sign of bursitis. The only positive sign was a “small sheath effusion of the left biceps long head tendon…possibly related to a recent inflammation or recent trauma”. An x ray of the left shoulder dated 17 March 1998 was normal.

The documents tendered from Campbelltown Hospital revealed the following relevant entries relating to Mr Quinn’s neck:

14 July 1993 WorkCover medical certificate referring to cervical pain while “climbing onto back of prime mover”;

14 July 1999
[sic- should be 1993] “? Pinched Nerve in neck – Driving truck & felt neck go stiff & painful
Pt getting off truck and felt ‘clunk’ ® pain in mid cervical region
O/E: tender over both sides of neck…¯ movement by pain
No paresthesia”

Documents tendered from Mayne Group Limited revealed that Mr Quinn injured his left shoulder in October 1990 and again in September 1992. Investigations revealed a tear of the glenoid labrum. Surgical repair was undertaken on two occasions. The first being done arthroscopically on 2 September 1992 when a prominent tear of the anterior aspect of the glenoid labrum was noted. The second was on 21 October 1992 when an open left anterior capsulorraphy was performed (report Dr Giblin 7 September 1994). Mr Quinn returned to his normal duties on 10 June 1993 and was later assessed by Dr Giblin to have a 35% permanent loss of efficient use of his left arm at or above the elbow. A claim for lump sum compensation in the Compensation Court was settled in about July 1995 for $12,392.25 in respect of “13% loss of use of the left upper arm”. It appears that Mr Quinn did not seek legal advice in respect of that settlement. As best I can determine it appears that this injury is the injury that Dr Clarke referred to as the left pectoral injury “10 years ago”.

Arising from the above histories Mr Macken submitted to the Arbitrator that Mr Quinn gave “false histories” (transcript page 26 line seven) and had “deliberately not told the doctor” about his prior neck problems (transcript page 26 line 46). The histories recorded by several of the doctors in this case are inaccurate and/or incomplete. The question is: what flows from that?

The issues for me to determine are whether Mr Quinn sustained injury to his left shoulder and neck on 17 April 2003 and whether his employment was a substantial contributing factor to that injury. Interrelated to those issues are issues of credit, causation and whether Mr Quinn has discharged the onus of proof.

If a worker has given a deliberately false history to a doctor that is a matter that may impact adversely on his or her credit. It may also impact on the weight to be attached to the particular medical report. For the following reasons I do not accept that Mr Quinn gave deliberately false histories in this case or that the incomplete histories recorded by the doctors undermine Mr Quinn’s medical evidence to such an extent that his evidence cannot be accepted on injury and substantial contributing factor:

a)the scarring from the 1992 surgery was there for any examiner to see. It was not something Mr Quinn could have concealed, even if he wanted to;

b)the last recorded complaint of neck and left shoulder pain was in late 1999, over three years before the work incident of April 2003. There was no evidence that the period leading up to April 2003 Mr Quinn was not doing his normal duties for 60 hours per week with no complaint of pain or restriction in either his neck or left shoulder. In these circumstances it is unlikely his prior neck or shoulder pain would have been to the fore of his thinking when he was examined for the purposes of the present claim;

c)whilst I accept that the histories recorded by Drs Hughes and Conrad were inaccurate, that does not necessarily mean that that inaccuracy was the result of a deliberately false history from Mr Quinn. That is especially so when one considers that Dr Clarke does have a history of previous problems, at least so far as the left pectoral muscle is concerned. In addition, Dr Edwards had a history of prior neck stiffness. If Mr Quinn was deliberately providing a false history one would expect that to be carried through to all doctors, but that is not the case;

d)a close analysis of the documentary evidence reveals that Mr Quinn has had many work accidents over several years. It is hardly surprising that he did not recount each of the incidents relating to his neck and shoulder to all of the examining doctors;

e)the presence of prior episodes of pain in Mr Quinn’s neck and left shoulder may well be relevant to whether a deduction under section 323 of the 1998 Act will be made to his claim for whole person impairment, but they are certainly not determinative of the threshold questions of injury and substantial contributing factor under section 9A;

f)the fact that Mr Quinn returned to work in January 2004 after major surgery speaks very favourably of his credit;

g)Mr Macken’s submission that the Campbelltown Hospital notes indicate “an alteration in the pathological processes in his neck” (transcript page 25 line 30) goes well beyond what the notes say or justify. In fact, the notes say: “? Pinched Nerve in neck”. In addition, the entry of “14.7.99” in the notes is an error. The notes correctly record Mr Quinn’s date of birth as being “16.12.57” and his age as “35”. If that is correct the attendance at hospital was in 1993 not 1999. This is confirmed by the entry at the bottom of the page, which reads “Cert 14 – 22/7/93”. This is consistent with the more legible WorkCover certificate attached that is dated “14/7/93”. This certificate diagnosed Mr Quinn as suffering from “cervical strain”. Thus, the complaint of neck pain on which Mr Macken placed so much weight occurred almost 10 years before the April 2003 incident and was diagnosed as no more than a strain;

h)Mr Quinn’s injury was reported on the day it happened and the note made by S Parkes in the injury report form was consistent with the case presented by Mr Quinn at the hearing. It was also consistent with the mechanism of injury recorded by all doctors in the case;

i)the first note by Dr Lau on 29 April 2003 was consistent with Mr Quinn’s evidence and confirmed a complaint of neck pain;

j)Dr Clarke’s opinion was consistent with Mr Quinn’s presentation and history and his initial clinical diagnosis of a cervical disc lesion was confirmed by CT and MRI scans, and

k)the symptoms radiating down Mr Quinn’s left arm were substantially relieved after his neck surgery.

Mr Quinn’s Previous Claims

At the Arbitration hearing much was made of Mr Quinn’s previous claims. It was not disputed that Mr Quinn had made previous claims for compensation and damages. The right ankle injury on 2 March 1994 resulted in a District Court claim for damages, which was settled.

In separate proceedings in the Compensation Court (22255/97) filed on 22 June 1998 Mr Quinn sought lump sum compensation in respect of an injury to his back sustained on “2 March 1994” and as a result of “Nature and conditions of employment, entire period of employment” requiring lifting and bending. No compensation was sought in respect of the right ankle injury.

The medical evidence in respect of the back claim was, in part, set out in a report from Dr Lodin dated 11 September 1995. Paragraph two of that report stated:

“Mr Anthony Quinn presented at the Royale Medical Centre on 23 March 1995 advising [of a] long history of back pain which he said had been getting worse over the past two months. Mr Quinn advised he worked as a Driver/Loader for Ipec and that the injury was caused while lifting cartons at work.”

A lumbar CT scan dated 24 March 1995 showed generalised bulging at L3/4 causing minimal encroachment into the left neural canal.

The Compensation Court claim was settled on 27 October 1998 for $7,800.00 in respect of a 13% permanent impairment of Mr Quinn’s back.

From the documents tendered in evidence before the Arbitrator it is patently obvious that Mr Quinn did not injure his back on 2 March 1994 and that he did not make any such claim. The reference to ‘2 March 1994’ is obviously a typing error because a casual reading of paragraph four of the Application for Determination makes it clear that the date of injury is “on or about 3 March 1995”. In addition, March 1995 is when Mr Quinn attended on Dr Lodin complaining of back pain “getting worse over the past two months”. Further, it is clear beyond doubt that the back claim in the Compensation Court was a “nature and conditions” claim and not a claim arising out of the incident on 2 March 1994.

Mr Macken’s submission that these claims demonstrated “a pattern that indicates a repeated and deliberate attempt to happily falsify statements to court in order to secure the payment of compensation” (transcript page 24 line 33) was improper, inappropriate and a misrepresentation of the documents tendered. Mr Quinn’s back pain symptoms were documented in his numerous attendances on his general practitioner and his pathology confirmed on CT scan. Whenever an advocate intends to attack the credit of a witness or a party, it is imperative that that attack is properly supported by clear evidence. No evidence supported the attack made by Mr Macken on this issue. Advocates appearing in the Commission have an obligation not to “engage in behaviour that could reasonably be perceived to be inappropriate, unprofessional, or an abuse of process” (see Registrar’s Guideline - Standards of Conduct During Proceedings October 2004 page two). In my opinion, Mr Macken’s behaviour on this issue breached these standards in that his submissions were inappropriate as they were not supported by the evidence.

I firmly reject the attack on Mr Quinn’s credit on the basis of the prior claims in the District Court and claim 22255/97 in the Compensation Court. The claims were clearly in respect of separate injuries. Mr Quinn was entitled to bring them and no adverse comment can be made about the fact that he did. If anything, these claims lend support to Mr Quinn’s credit because they show that notwithstanding these injuries he returned to and in the main remained at work performing his normal duties until his injury on 17 April 2003.

Other Matters

Mr Macken also attacked Mr Quinn’s credit because of a reference in Dr Lodin’s notes on 7 August 1995 to Mr Quinn experiencing low back pain while playing soccer (transcript page 27 line seven). The implication in this attack was that Mr Quinn’s low back pain did not occur as a result of a work injury but because of soccer. This point ignores the fact that Mr Quinn’s low back pain and its connection with his employment was documented in March 1995, well before the soccer incident.

Mr Macken submitted that Mr Quinn was trying to link his low back pain to the injury on 17 April 2003. At page 26 line 49 of the transcript Mr Macken said:

“When he sees Dr Ellis in April of 2005, not only is he trying to connect his problems, his alleged problems with his shoulder and neck, such as they are, to his work with Toll, but he’s now saying he’s got low back pain. He’s trying to connect:
He has low back pain, particularly when he loads pallets on the fork-lift. His back pain depends on what he’s doing.

Trying to infer that somehow his back pain relates to this, but we know from the records low back pain from soccer injuries in July of 1995. It didn’t stop him claiming the lump sum compensation, by the way, for the low back, but, no, [he] injured his back following soccer in 1995.” (emphasis added)

The evidence did not support the submission made. Mr Quinn made no attempt to link his back pain to the injury on 17 April 2003. The submission was inappropriate.

After again referring to the District Court claim at page 27 line 17 in the context that Mr Quinn had experienced right ankle pain in 1991 and attended at Liverpool Hospital because of that pain Mr Macken submitted:

“One wonders whether he disclosed that to the people he successfully secured damages off in the District Court proceedings, a long-standing ankle problem that he eventually turned into damages.”

The hospital notes did not establish that as at 1994 Mr Quinn had a “long-standing ankle problem”. In any event the documents produced from Liverpool Hospital establish that its clinical notes were subpoenaed in the District Court proceedings. Therefore, the parties would have been well aware of the 1991 right ankle injury. Further, the hospital recommended non-weight bearing for one week, light work for one week and then “normal duty”. There is no evidence to suggest that Mr Quinn made anything other than a full recovery from this incident. The evidence did not support Mr Macken’s submission.

Mr Macken then said at page 27 line 29:

“Arbitrator, I don’t say these things lightly, because it is not for me to attack credit unless there is a very legitimate reason to do so. My friend quite rightly raises these issues, saying, ‘Well, you know, credit. You know, how easy is that to do?’ Really, this is a litany, an absolute litany, of falsehoods and lies given by this applicant to try and secure compensation.

His GP doesn’t see him for two months and says, ‘If you accept what he says, I accept what he says, that is, it’s employment.’ What I say is this. You cannot possibly on any view of these records accept anything the applicant says, not anything he says because the records prove it to be false. The video proves him to be false in what he says. The records of the District Court show him to be false. The records of Dr Lau show him to be telling untruths. All of these records show that there is just no truth at all to what he says, and, absent being able to accept him - bear in mind that the applicant bears the onus. He has to demonstrate on the balance of probabilities that his condition has been caused by an injury at work, that there was an injury first of all at work and, secondly, that the injury resulted in these problems. You might want to look at the records of Dr Oon [sic- Un], because Dr Oon, I think advisedly, says, if you accept his history, because Dr Oon knows that in 1992 he went to him with this painful left shoulder problem, nothing to do with his musculature, a specific left shoulder injury, which we know from the records of Mayne that he claimed and got compensation benefits for.” (emphasis added)

The records from the District Court and Dr Lau show nothing of the sort claimed by Mr Macken. I have already dealt with the District Court records. The records from Dr Lau do not show Mr Quinn was telling “untruths” but in fact corroborate his allegation of injury to his neck and left shoulder in the manner he alleges on 17 April 2003 and make reference to the prior left shoulder problem. Mr Macken’s submissions were inappropriate and misleading. I reject them.

Mr Macken submitted that there was no evidence of neck pain after the 17 April 2003 until Mr Quinn saw Dr Un on 11 June 2003 (transcript page 30 line 26). That submission was wrong. In fact, Dr Lau refers to Mr Quinn experiencing neck pain at his attendance on 29 April 2003 and Dr Clarke confirms a history of neck and arm pain on 20 May 2003.

Further attacks on Mr Quinn’s credit were made at pages 53 to 57 of the transcript. At page 53 line 51 the point was made that in his claim form dated 13 May 2003 Mr Quinn denied previously suffering any “similar work-related injury or condition”. Mr Quinn’s pectoral injury in the early 1990’s was not the same as his injury in 2003. His other shoulder and neck episodes in the 1990’s were minor self limiting incidents that occurred several years before April 2003 which could well fail to register with a worker when completing a claim form. I do not accept that Mr Quinn made a “declaration of a lie” as submitted by Mr Macken.

At page 53 Mr Macken returned to his submission about the previous claims in the Compensation Court and the District Court. He said at 53 line 25:

“We say the applicant is seeking to say that his problems were caused by work in this case in the same way as he sought to say his right ankle problems entitled him to damages for an injury in 1994, despite the clear records to the right ankle problems in 1991, in the same way that he said he wanted workers compensation for his back injury in 1995 and six, despite the records showing that he sustained it at soccer.”

For the reasons already outlined above, this submission was inappropriate and I reject it.

Mr Macken submitted on appeal that the Respondent Worker’s case should be rejected because he did not call any independent corroborative evidence. The basis for this submission is unclear and no authority is sited in support of it. There is no rule or principle that a worker must call corroborative evidence before he or she can succeed with a claim. I reject this submission.

FINDINGS

For all of the above reasons I am firmly of the view, and I find, that Mr Quinn suffered injury to his neck and left shoulder in the course of his employment with Toll on 17 April 2003 when he lifted a steal gate. I find that that incident caused Mr Quinn to sustain “acute cervical disc rupture” (Dr Clarke 17 March 2004, page one) and a left rotator cuff tendinitis with intra-substance tear and impingement (Dr Clarke 17 March 2004, page one).

I also find that Mr Quinn’s employment was a substantial contributing factor to his injuries. Considering each of the subsections of section 9A(2) in turn, I find:

a)   “time and place of injury”: the injury occurred during Mr Quinn’s normal working hours at Toll’s Sydney depot (see claim form 13 May 2003);
b)   “the nature of the work performed and the particular tasks of that work”: Mr Quinn was employed as a loader/driver and was performing that role when he was injured;
c)   “the duration of the employment”: this factor is not relevant in this case;

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”: it is certainly possible that Mr Quinn may have suffered a disc lesion and rotator cuff injury lifting a heavy object at home, however the evidence establishes and I find that the injuries were sustained at work;

e) “the worker’s state of health before the injury and the existence of any hereditary factors”: Mr Quinn’s state of health before 17 April 2003 was such that he was able to perform his normal duties without restriction or interruption in the three years up to April 2003, and

f) “the worker’s lifestyle and his or her activities outside the workplace”: Mr Quinn’s lifestyle was not a factor in his injury.

Finally, at page 55 line 35 Mr Macken said, “if you believe him, he wins”. For the reasons set out above, I have no hesitation in believing Mr Quinn on the issues of injury and substantial contributing factor. Having accepted him on those issues it follows that I accept Mr Quinn’s medical case and that he has discharged the onus of proof on all issues including causation.

DECISION

For the reasons set out in this decision, the Arbitrator’s findings and orders dated 4 August 2006 are confirmed.

COSTS

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal at the maximum rate allowable under the costs regulations, Schedule 6, table 4 of the Workers Compensation Regulation 2003.

Bill Roche
Deputy President
23 February 2007

I 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