Toplis v Coles Group Ltd t/as Coles Logistics
[2009] NSWWCCPD 70
•19 June 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Toplis v Coles Group Ltd (t/as Coles Logistics) (2009) 7 DDCR 497 | |||||
| CITATION: | Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 | ||||
| APPELLANT: | Andrew Edward Toplis | ||||
| RESPONDENT: | Coles Group Ltd t/as Coles Logistics | ||||
| INSURER: | Self insured | ||||
| FILE NUMBER: | A1-10127/08 | ||||
| ARBITRATOR: | Ms J Conley | ||||
| DATE OF ARBITRATOR’S DECISION: | 25 March 2009 | ||||
| DATE OF APPEAL DECISION: | 19 June 2009 | ||||
| SUBJECT MATTER OF DECISION: | Admissibility of a supplementary forensic medical report; clause 43AA of the Workers Compensation Regulation 2003; injury; inappropriate use of the term “nature and conditions of employment” | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | PK Simpson & Co | |||
| Respondent: | Moray & Agnew | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, paragraphs one, two, three, four and six of the Arbitrator’s determination dated 25 March 2009, as amended on 1 April 2009, are confirmed. Paragraph five is revoked and the following order made: “5. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of the injury to his thoracic and lumbar spines on 26 November 2007.” Each party is to pay his or its own costs of the appeal. | ||||
BACKGROUND
The worker, Mr Toplis, commenced work with Coles Group Limited (‘Coles’) as a storeman in 2001. His duties required him to frequently lift and move boxes weighing between 5 and 25kgs.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 17 December 2008, Mr Toplis claimed lump sum compensation in respect of a 26% whole person impairment together with compensation for pain and suffering, and for hospital and medical expenses. The Application asserted that Mr Toplis sustained two injuries in the course of his employment with Coles. The first (conceded by Coles) on 26 November 2007, when he injured his neck, back, and legs “as a result of lifting a box of soft drinks”. The second was between 1 January 2000 and 26 November 2007 when the same body parts were allegedly injured “as a result of the nature and conditions of his employment.”
By a letter dated 29 January 2009, Mr Toplis’ solicitors amended the Application to discontinue the claim for hospital and medical expenses and to withdraw the allegation of injury as a result of the nature and conditions of employment between January 2000 and 26 November 2007.
The matter was referred to a Commission Arbitrator for conciliation and arbitration on 17 March 2009. Counsel for Mr Toplis made two preliminary applications before the commencement of the arbitration. First, he sought leave to amend the Application to include “an injury, being the nature and conditions of employment from 1 March 2002 to 26 November 2007” (T13.7). Second, he sought leave to rely upon a supplementary forensic medical report from Dr Matalani, dated 14 January 2009 (‘the supplementary report’).
The Arbitrator permitted the amendment to allege an injury as a result of the nature and conditions of employment between 1 March 2002 to 26 November 2007, but rejected the tender of Dr Matalani’s report of 14 January 2009 on the grounds that Dr Matalani had already prepared a forensic medical report, dated 6 June 2008, which was in evidence, and the supplementary report did not satisfy the terms of clause 43AA of the Workers Compensation Regulation 2003 (‘the Regulation’) as it merely responded to Coles’ forensic medical report and did not clarify the original report of 6 June 2008.
The matter proceeded with submissions from both parties. Neither side called any oral evidence. In an ex tempore decision the Arbitrator made an award in favour of Coles in respect of the injury alleged to have resulted from the “nature and conditions of employment” from 1 March 2002 to 26 November 2007. In respect of the conceded injury on 26 November 2007, the Arbitrator referred the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of the degree of permanent impairment, if any.
The Commission issued a Certificate of Determination on 25 March 2009, amended on 1 April 2009, in which it made the following orders:
“The determination of the Commission in this matter is as follows:
1.That the Application to Resolve a Dispute be amended to specify an injury to the thoracic spine due to the “nature and conditions of employment” from 1 March 2002 to 26 November 2007.
2.An award for the Respondent in respect of an injury to the thoracic spine due to the “nature and conditions of employment” from 1 March 2002 to 26 November 2007.
3.The Applicant’s costs are to exclude the costs associated with the telephone conference held on 6 March 2009 and the conciliation/arbitration hearing held 17 March 2009.
4.It is noted that the Respondent does not dispute liability in relation to the application for lump sum compensation for permanent impairment of the thoracic and lumbar spine in respect of an injury arising out of or in the course of employment with the Respondent on 26 November 2007. The only issue in dispute in respect of this in jury is the degree of permanent impairment if any.
5.This claim is remitted to the Registrar for referral to an Approved Medical Specialist (the AMS) for assessment of the degree of further [sic] permanent impairment, if any.
6.The documents to be included in the referral to the AMS comprise the following:
For the Applicant
·The Application and all the documents annexed.
For the Respondent
·The Reply and all the documents annexed.”
By an appeal filed on 8 April 2009, Mr Toplis seeks leave to appeal the Arbitrator’s determination.
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’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act 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.
ON THE PAPERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties 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.
THE EVIDENCE
Mr Toplis’ Evidence
Mr Toplis’ evidence is set out in an unsigned and undated statement attached to the Application. He was born in 1961 and is currently 47 years of age. He started work with Coles as a storeman in 2001 and continued to work in that capacity until his injury on 26 November 2007. After a few days off work he returned on light duties until they were withdrawn in early March 2008.
The critical parts of Mr Toplis’ evidence are contained in paragraphs 5 and 6 of his statement:
“5. On or about 26 November 2007 I hurt my back, left leg, right leg, neck, left arm and right arm and I believe the injury has also caused symptoms that affect the proper use or cause impairment of my back, left leg, right leg, neck. I hurt myself as a result of lifting a box of soft drinks. The injury happened at the Respondent’s premises. At the time of the injury I was working as a Storeman.
6. As a result of the nature of my work from commencement involving frequent moving and lifting of items such as boxes of soft drinks, I hurt my back, neck and legs.”
Mr Toplis reported his injury on 26 November 2007 to Greg Mahonczek, first aid officer, and Craig Surat, supervisor.
On 7 February 2008, Mr Toplis completed a claim form in which he gave a date of injury of 26 November 2007. In answer to a question as to the nature of the injury, Mr Toplis wrote “presure [sic] fractures & disc’s M/SPIN” [sic]. In answer to a question as to which body parts were affected, Mr Toplis wrote “thorasic spin” [sic]. In answer to the question whether he had any similar injuries or conditions previously, Mr Toplis ticked the box marked “no”.
Medical Evidence
An x-ray of Mr Toplis’ thoracic spine on 2 December 2007 revealed mild to moderate mid thoracic scoliosis convex to the right as well as prominence of the thoracic kyphosis. The x-ray also revealed “mild stable anterior wedge fractures” involving the mid to lower thoracic vertebral bodies with a loss of approximately 20 to 25% of the anterior vertebral body height. The radiologist, Dr Sacks, stated that the fractures appeared “to be long standing and stable with early spondylitic change involving the mid to lower thoracic spine”. He added that “ disc space calcification at the lower thoracic levels” was most likely degenerative in nature. He concluded that “clinical correlation as to the underlying aetiology of these fractures is advised”.
A bone scan on 23 January 2008 revealed “arthritic reaction” in the thoracic and lumbar spines.
Dr Houston, general practitioner, referred Mr Toplis to a Dr Bernard on 15 February 2008 for treatment and management of depression following the back injury. There is no report from Dr Bernard in evidence, but there is a report on the letterhead of Dr Timothy J Sharp and Associates Pty Ltd, consulting and clinical psychologists, dated 5 March 2008. Whilst the first four pages of this report are in evidence the concluding page, which would normally include the author’s name, is not in evidence. This report records that Mr Toplis reported he was “injured whilst working as a storeman/packer for Coles on 26/11/07. Immediately following the incident Mr Toplis reports experiencing pain in his back.” Following the incident Mr Toplis returned to work immediately, performing restricted duties for his normal hours.
The author then recorded Mr Toplis’ symptoms and added that he denied experiencing any of those difficulties prior to the injury.
Under “Impression”, the author stated that Mr Toplis presented with persisting pain in his back and severe symptoms of depression and stress. Those problems, according to the author, seemed to be “associated with an injury he sustained during the course of his duties as a storeman/packer on 26/11/07.”
Mr Toplis was assessed by Dr Matalani, consultant occupational physician, at the request of his solicitors on 6 June 2008. Dr Matalani recorded that the nature of Mr Toplis’ work required him to repetitively carry and lift boxes of groceries which he estimated to weigh between 5 and 25 kgs. He was expected to ‘pick’ approximately 120 cartons per hour. That number was subsequently increased to approximately 180-200 cartons per hour resulting in him having to work “faster and harder”.
As to the commencement of Mr Toplis’ symptoms, Dr Matalani recorded:
“On 26 November 2007 he experienced pain in the upper part of the back and between the shoulder blades. He reported it to the first aider. He received first aid and had ice applied.
He continued work and the pain extended down to the lower back. He consulted Dr Brent Wong and was referred for x-rays of the thoracic spine. This was performed on 2 December 2007. It demonstrated mild to moderate mid thoracic scoliosis and a mild stable anterior wedge fracture involving the mid to lower thoracic vertebral bodies with loss of approximately 20-25% body height.
He was certified fit for suitable duties. He was referred for physiotherapy and returned to suitable duties and restricted hours. No further suitable duties were available and he stopped work in March 2008.”
At the time of the examination, Mr Toplis complained of constant pain in the upper thoracic spine together with pain in the lower back. With prolonged standing, he developed a tingling/numbness sensation in the anterior aspect of the thighs. He also experienced a pulling sensation between the shoulder blades and a pull on the neck and lower part of the neck.
His symptoms made it difficult for him to carry out his general household duties. He had difficulty lifting heavy weights and was unable to move furniture or lift and carry a washing basket. Coughing and sneezing sometimes precipitated the pain in his upper and mid back.
His past medical history included involvement in a motor vehicle accident 20 to 25 years ago when he fractured his right forearm and injured his shoulder. Dr Matalani also recorded (at page three):
“He confirmed his neck, back and legs were asymptomatic when he commenced employment with Coles Logistics Pty Ltd and prior to the above injury.”
On examination, Mr Toplis pointed to the mid thoracic and lower back as the sites of pain and tenderness. Dr Matalani diagnosed a “soft tissue injury and chronic musculo ligamentous strain of the thoracic and lumbosacral spine.” That injury, according to the doctor, extended to cause restriction in the range of movement of the cervical spine due to pain in the thoracic spine and the cervicothoracic junction. Dr Matalani also noted the “imaging evidence of multiple thoracic vertebral wedge fractures of more than 20%.”
Under “Opinion”, Dr Matalani stated:
“Mr Toplis was asymptomatic when he commenced employment with Coles Logistics Pty Ltd. He had no problems in the back prior to the above injury. There has been no supplied evidence that his state of health before the injury, heredity, lifestyle or his activities outside the work place have contributed in any significant or material way to his current disabilities.
His wedge fracture appearance on the x-rays was recorded as longstanding and stable. However, Mr Toplis tells me he has been working with Coles Logistics Pty Ltd from 2000, and denied any pre-existing history of trauma or injury to the back. In the absence of any other explanation, or reasons for the wedge fractures, it is reasonable to conclude that the nature of his duties has been a substantial contributing factor in the development of his disabilities.
On the balance of probabilities it is more likely than not that the nature of his work, which required heavy manual handling activities, repetitive lifting and bending precipitated his multiple fractures, possibly in a predisposed individual.”
Dr Matalani declared Mr Toplis to be permanently unfit for his “pre-injury duties, which originally precipitated his condition.”
In a short report dated 6 June 2008 (attached to and accepted to be part of the longer report of the same date), Dr Matalani assessed Mr Toplis to have a 26 percent whole person impairment “based on the history of injury, symptoms and complaints”. Under “Pre-existing Impairment”, Dr Matalani added:
“Mr Toplis confirmed that he was asymptomatic when he commenced employment with Coles Logistics Pty Ltd. He denied any trauma to his back or other injuries to his thoracic spine. He denied any subsequent trauma or injuries after the subject injury on 26 November 2007.
In the absence of any other explanation, which may have contributed to the development of his multiple compression fractures apportionment is not indicated.”
In a report dated 9 July 2008, Dr Mahony, specialist, referred Mr Toplis for physiotherapy. Dr Mahony added that Mr Toplis had symptoms referrable to a cervical and lumbar strain, but included no history or findings on examination.
Mr Toplis underwent further x-rays on 15 July 2008. The cervical spine x-rays of that date revealed mild to moderate disc space narrowing at C3/4 and C4/5 with adjacent endplate osteophytosis. The x-ray of the thoracic spine revealed prominent calcification of the nucleus polyposis at several thoracic disc levels with anteriorly wedged fractures at T7, T8, T9, T10 and T11. Prominent endplate osteophytosis was demonstrated at the vertebrae. There were no bony abnormalities revealed in the lumbar spine.
At the request of Coles’ solicitors, Moray & Agnew, Dr Bodel, orthopaedic surgeon, examined Mr Toplis on 10 September 2008. Under “Occupational History”, Dr Bodel recorded:
“He commenced work at the location in about the year 2000. He has worked fulltime as an order assembler picking and packing orders from a large warehouse. Initially the pick rate required was approximately 120 items per hour. It was acceptable to pick over 100 items but the 120 items was [the] 100% pick rate. In the middle of the year 2007 there was a dramatic change in the method of the work practices as some part of an ‘incentive scheme’. The pick rates then were raised to 180-200 items per hour and if the 100% rate was not picked then warnings were issued and employment was in jeopardy. Mr Toplis indicates that although this was a dramatic increase in the rate of work he managed to do the work until his injury on 26 November 2007.”
Under “History Relating to the Injury”, Dr Bodel recorded:
“Mr Toplis suffered an injury at work on 26 November 2007. He was at the time picking a drink order. He had boxes containing 2-litre bottles of drink and there are eight 2-litre bottles in each box. There was a lot of bending and lifting in this large order that he was picking and on one particular occasion he felt sudden pain in the upper part of the back and at the base of the neck when lifting one of these boxes which was stuck to the box beneath. He tried to continue but the pain was so severe that he had to attend the first aid station.”
Dr Bodel also recorded that, prior to this injury, Mr Toplis had no real cause to visit doctors and he did not have his own regular doctor. Under “Past Medical History”, Dr Bodel noted:
“This gentleman at the time of the accident was otherwise quite well and not being treated for any other medical conditions. He denies any other accident or injury involving his neck or lower back prior to the accident which is the subject of this claim.”
Dr Bodel also noted, under “Social History”, that prior to the accident Mr Toplis enjoyed fishing but he had been unable to return to that activity and even had difficulty playing with his son.
In response to a question as to the nature and extent of any injury received by Mr Toplis, Dr Bodel replied as follows:
“In regard to the neck, Mr Toplis suffered a soft tissue injury.”
In regard to the back, Dr Bodel stated:
“… it appears that he has suffered a soft tissue musculoligamentous strain in the interscapular region of the thoracic spine and the lower part of the back aggravating longstanding pre-existing degenerative change and wedge compression fractures in this region.
It is also noteworthy that this gentleman states that he has lost a dramatic amount of weight in the last three months. He appears generally unwell and somewhat cachectic in his clinical presentation and I am concerned that there is some other more sinister underlying cause for his clinical presentation.
There is no definite clinical indication that he has suffered any acute wedge compression fracture in the mid-thoracic region as a result of the specific event that occurred at work. The comment in regard to the bone scan is that there is a[n] ‘arthritic reaction in the thoracic and lumbar spines’. This is dated 23 January 2008 and there is no mention of an acute fractures in this region for the injury that occurred on 26 January [sic, November] 2007. It is unlikely therefore that any acute fracture has occurred if the bone scan, two months after the injury shows no mention of an acute fracture.”
Dr Bodel was then asked to consider the “respective parts” played in any injury by:
(a) any underlying/pre-existing condition which is not work-related;
(b) the employment duties generally prior to 26 November 2007, and
(c) the work performed on 26 November 2007.
The doctor answered these issues as follows:
“This gentleman has suffered a soft tissue injury to the neck and the back as a result of the lifting incident at work. This is a musculoligamentous strain which is the cause of his work related complaint. His general clinical presentation however strongly suggests that there are other factors at play which may well be unrelated to work. He needs to be thoroughly investigated to exclude other factors which could cause such a dramatic weight loss. He appears generally very unwell.
The episode of injury that occurred on 26 November 2007 is the event which instigated his symptoms. The underlying pre-existing degenerative change and the wedge compression fractures had been present for a long period and had been asymptomatic until that event.”
Mr Toplis’ solicitors forwarded a copy of Dr Bodel’s report to Dr Matalani for comment. In a supplementary report dated 14 January 2009, Dr Matalani reviewed Dr Bodel’s report together with the radiological investigations of 2 December 2007 and the bone scan of 23 January 2008. He then restated Mr Toplis’ history as to his symptoms and the nature of his duties, and added:
“Thus the nature of his work required heavy manual handling activities, repetitive lifting and bending and I was of the opinion that since there is no other explanation or reasons for the wedge fractures as indicated by the negative history prior and after his injury, it is reasonable to conclude, on the balance of probabilities that the heavy nature of his work over many years may well have precipitated his multiple fractures.
Since there is no evidence of acute fracture as a result of the injury, the presence of the multiple fractures in the mid to lower thoracic vertebral bodies could well be related to the nature of his employment as described above.”
Dr Matalani then noted that Dr Bodel did not “specifically exclude” the possibility that the fractures might be related to the nature and conditions of Mr Toplis’ employment. Whilst he agreed with Dr Bodel that there were no indications of acute fractures related to the injury of 26 November 2007, he believed that there was a “reasonable probability that these fractures might have been precipitated, possibly over a period of time, by the heavy nature of his employment with Coles Logistics Pty Ltd for the previous 7 years.”
He felt that Dr Bodel’s opinion that the fractures had been present for a long time and been asymptomatic until 26 November 2007 was “not inconsistent with the probability that Mr Toplis’ nature of the work might have precipitated the multiple fractures.” He added that it was reasonable to conclude that the nature of Mr Toplis’ duties involving many years of manual handling activities and repetitive heavy lifting “has been a substantial contributing factor to the development of his current disabilities”.
Rehabilitation Reports
In an “Injury Management Plan” dated 4 January 2008, it is recorded that Mr Toplis reported sustaining an injury to his upper back following repetitive lifting duties at work on 26 November 2007. He was not rostered for work between that date and 2 December 2007, but his symptoms did not resolve while he was resting at home and he did not feel capable of returning to work on 2 December 2007. He attended on Dr Wong on that day who certified him unfit until 7 December 2007 when he returned to work on suitable duties which continued until they were withdrawn in early March 2008.
In a document headed “Reviewed Injury Management Plan” dated 17 September 2008, the author reviewed a number of the medical reports and noted the following under “Medical”:
“09.07.08 Dr Mahony. History of lifting at work 26.11.07 & noticed pain between shoulder blades. Developed symptoms referrable to cervical strain with nerve root irritation radiating to shoulders, an interscapular back strain & lower back strain with nerve root irritation affecting lower limbs.
Mr Toplis has changed NTD to Dr Mahony.
18.07.08 Dr Mahony. Examined on 09.07.08. History of lifting & felt pain between shoulders. This pain radiates down to lower back & buttocks. Pins & needles in both thighs. Xray shows wedging of mid thoracic vertebrae. Worker developed symptoms referrable to cervical strain with nerve root irritation radiating to the shoulders, an interscapular back strain as well as low lumbar back strain. Consistent that the work produced such lesions. Unfit for work. Ordered x-rays to cervical, thoracic & lumbar spine followed by review.
03.09.08. Dr Mahony. Worker has wedging of T7, T8, T9, T10 & T11 & post-traumatic lesion could not be excluded. Should continue with hydrotherapy & walking exercises. Unfit for work & should be reviewed in 3 months.”
THE ARBITRATOR’S REASONS
In an ex tempore decision delivered on 17 March 2009, the Arbitrator allowed Mr Toplis to amend the Application to allege injury as a result of “the nature and conditions of employment from 1 March 2002 to 26 November 2007.” But she refused to admit Dr Matalani’s supplementary report into evidence because it was merely a discussion of his own earlier report and Dr Bodel’s report and therefore did not come within the scope of clause 43AA(1)(a) of the Regulation.
Dealing with the merits of the claim the Arbitrator referred to the evidence (excluding Dr Matalani’s supplementary report) and concluded that:
(a) the evidence was that Mr Toplis was asymptomatic prior to the “frank incident on 26 November 2007, whereafter he became symptomatic and the wedge fractures were discovered as a consequence of this injury” (T17.35);
(b) she did not find Dr Matalani’s opinion to be persuasive as he did not explain why he reached his conclusion that the heavy manual handling and repetitive bending and lifting precipitated the fractures (T17.57-18.2);
(c) there was no evidence sufficient to make a finding that “more likely than not the applicant sustained the injury, being the wedge fractures due to the nature and conditions of employment from March 2002 to November 2007” (T18.6);
(d) therefore the matters to be referred to the AMS were the claim for impairment to the thoracic and lumbar spines in respect of the frank incident on 26 November 2007 (T18.12), and
(e) there would be an award for the respondent in respect of the nature and conditions claim for the period 1 March 2002 to 26 November 2007 (T18.32).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in rejecting Dr Matalani’s report of 14 January 2009 (‘Dr Matalani’s supplementary report’) and erred in making an award in favour of Coles in respect of the alleged injury as a result of the “nature and conditions of employment” (‘alleged injury due to heavy lifting between 1 March 2002 and 26 November 2007’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Dr Matalani’s Supplementary Report
It is submitted on behalf of Mr Toplis that:
(a) he has been denied natural justice and/or procedural fairness by not being allowed to submit expert opinion in response to Dr Bodel’s report;
(b) the Commission is not obliged to insist on compliance with technicality and procedure in circumstances where there is no prejudice to the respondent and procedural fairness should allow the report to be relied upon;
(c) clause 43 of the Regulation permits the report to be tendered. The term “forensic medical report” must be interpreted to mean a report from the one forensic medical specialist, such report to include different parts with the same or different dates. To disallow more than one report from the same forensic medical specialist would result in reports being disallowed for pre and post surgery and for “deterioration claims” and, as in the present situation, where there is a new development such as a subsequent commentary by a doctor arranged by the other party;
(d) excluding Dr Matalani’s report is contrary to section 354 of the 1998 Act and the Act prevails to the extent of any conflict with the Regulation, and
(e) the Arbitrator had no jurisdiction to determine the medical dispute relating to the acceptance of Dr Matalani’s report and was “instead bound to refer that report to an AMS” (Haroun v Rail Corporation New South Wales and ors [2008] NSWCA 192 (‘Haroun’)). The Commission has no jurisdiction to restrict the enquiry of the AMS as to a medical dispute.
It is submitted on behalf of Coles that:
(a) Dr Matalani’s supplementary report could only be admitted in accordance with clause 43AA(1), which only permits a supplementary medical report being admitted in very limited circumstances, none of which apply to Dr Matalani’s report. The sole purpose of Dr Matalani’s report was to respondent to Dr Bodel’s report and that did not satisfy the requirements of clause 43AA;
(b) an arbitrator has no discretion to admit more than one forensic medical report, save for the circumstances in clause 43AA of the Regulation, and
(c) the Arbitrator had jurisdiction to refuse the tender of Dr Matalani’s report and correctly exercised that jurisdiction.
Assuming that the Regulation was validly made, and it has not been argued that it wasn’t, the admission or rejection of Dr Matalani’s supplementary report is governed by the terms of clause 43AA and is not a question of procedural fairness to the worker, or prejudice to the employer.
The expression “one forensic medical report” in clause 43 means what it says. Subject to the exceptions in clause 43(3) (which are not relevant in the present matter), only one report from a specialist medical practitioner who has not treated the worker may be admitted on behalf of a party to proceedings. It does not mean a worker is entitled to tender multiple reports from one forensic specialist. This interpretation (that only one forensic report is admissible) does not have the effect contended for by Mr Toplis. A forensic specialist is permitted to update his or her original report in a supplementary report to cover some omission in the original report. Such an omission will include a situation where a worker has undergone surgery after the date of the specialist’s original report, or where the worker’s condition has deteriorated.
The admission of a supplementary forensic medical report is not governed by section 354 of the 1998 Act.
The submission that the Arbitrator had no jurisdiction to determine the medical dispute relating to the acceptance of Dr Matalani’s evidence is completely misconceived. The admission or rejection of the report is not a medical dispute. It is a procedural matter governed by the Regulation.
Notwithstanding Mr Toplis’ misguided submissions on this issue on appeal, there are other matters that must be considered. At the arbitration, counsel for Mr Toplis submitted that the supplementary report was really “amplifying” what was in the original report (T7.34).
It is accepted that Dr Matalani’s original report of 6 June 2008 is a “forensic medical report” within the meaning of clause 43 of the Regulation. In that event, supplementary reports are only admissible in the circumstances set out in clause 43AA. That clause provides:
“43AA Supplementary reports admissible
(1) Despite clauses 43 and 43A, a medical report other than the original report (‘a supplementary report’) may be admitted if:
(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information, and
(b) it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report.
(2) A supplementary report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the report referred to in clauses 43 and 43A.
(3) A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.”
Regulation 43AA allows a supplementary report where that report has the purpose of clarifying the original report, but the supplementary report must not go outside the parameters of the original report. It must merely confirm, modify or retract an opinion expressed in the original report. The example given in clause 43AA(1)(a) is only one illustration and is not the only situation where a supplementary report will be permitted.
Whether the supplementary report comes into existence as a result of a request to respond to another expert’s opinion does not matter. It is common practice for a doctor to be asked to confirm, modify or retract his opinion in the light of the evidence from an expert retained by the other side and a report prepared in response to such a request will come within the terms of clause 43AA if, in light of the opposing expert’s opinion, it clarifies the opinion expressed in the original report. Not only is that practice within the terms of clause 43AA, it is an accepted and appropriate method of eliciting probative evidence that will enable the Commission to determine matters according to their substantial merits.
In his first report, Dr Matalani expressed the view that, in the absence of any other explanation for the wedge fractures, it was more likely than not that they were precipitated by the work at Coles. In his supplementary report, he repeated the history he initially recorded, namely, of no symptoms before 26 November 2007 and of heavy lifting at work, and added that, since there was no evidence of an acute fracture, the multiple fractures “could well be related to the nature and conditions of his employment as described”.
Dr Matalani also observed that Dr Bodel did not specifically exclude such a possibility. Thus his supplementary report may be seen as “clarifying the original report” in that it made clear that, whilst he agreed with Dr Bodel that there were no indications of acute fractures, there was still a reasonable probability that the fractures “may well” have been precipitated by Mr Toplis’ heavy work over time. Thus, for this reason, Dr Matalani’s supplementary report is admissible.
Alleged Injury Due to Heavy Lifting Between 1 March 2002 and 26 November 2007
It is submitted on behalf of Mr Toplis:
(a) Dr Matalani took a history of the weight of the items Mr Toplis lifted in the course of his work, but Dr Bodel did not take such a history and referred only to the history of an injury on 26 November 2007. Dr Matalani’s evidence should be preferred for this reason;
(b) the Arbitrator erred in finding that Dr Matalani did not explain how the wedge fractures occurred. Dr Matalani’s opinion is founded upon the history he took, which includes a more detailed history of the weights Mr Toplis lifted. Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) is not authority for the proposition asserted by the Arbitrator. In any event, the decisions of Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 and Adler and anor v Australian Securities and Investments Commission; Williams v Australian Securities and Investments Commission [2003] NSWCA 131 indicate that caution should be used in any application of Makita and that is a relevant consideration in the exercise of an administrative jurisdiction such as the Commission, and
(c) the Arbitrator had no jurisdiction to determine the medical dispute relating to injury arising from the “nature and conditions” of employment and was bound to refer the matter to an AMS (Haroun). The only issue in dispute is a medical issue as to the pathology and development of injury. That is a dispute between Dr Matalani and Dr Bodel. There is no dispute as to the history of nature and conditions of employment and there is therefore no factual dispute or finding required. Coles disputed that the injury resulted from the nature and conditions of employment, not the nature and conditions of employment itself. There is a medical dispute and it should have been referred to an AMS.
Coles concedes that Mr Toplis injured his neck and back as a result of the lifting incident on 26 November 2007, but disputes that any injury occurred as a result of the work he performed between March 2002 and 26 November 2007. It argues that the Arbitrator’s finding that the injury to Mr Toplis did not arise from the “nature and conditions of employment” from 1 March 2002 to 26 November 2007 is consistent with the overwhelming balance of the evidence and should not be disturbed.
The general reference by the parties and the Arbitrator to a “nature and conditions” injury was misleading and unhelpful. The phrase “nature and conditions” is not a term used in the NSW workers compensation legislation. In Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656 Neilson CCJ said (at 667):
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’. It is used in this place [the Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16.”
An injury is defined in section 4 of the 1987 Act to include:
“injury:
(a) means a personal injury arising out of or in the course of employment, and
(b) includes:
(i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”
The submission that the Arbitrator had no jurisdiction to determine the medical dispute is incorrect and misunderstands the nature of the dispute before the Commission. The dispute is whether Mr Toplis received an injury arising out of or in the course of his employment with Coles as a result of the heavy nature of his duties between March 2002 and 26 November 2007. That is not a “medical dispute” but an “injury dispute”. Though Mr Toplis has referred to Haroun, he has not referred to any passage in that decision and I am not aware of anything in that decision that supports his submission. The submission is unhelpful and unpersuasive.
Mr Toplis does not allege that he received an injury as a result of contracting a disease in the course of his employment under section 4(b)(i), or that his injury is in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease under section 4(b)(ii). His case is that the heavy lifting work he performed with Coles between March 2002 and 26 November 2007 caused a personal injury under section 4(a), namely, the wedge fractures revealed in his x-rays on 2 December 2007. That assertion is contrary to the overwhelming weight of the evidence and I do not accept it.
It is argued that Dr Matalani’s opinion carries greater weight because Dr Bodel did not have a history of the weights Mr Toplis lifted. It is true that Dr Matalani took a detailed history of Mr Toplis’ duties with Coles and that those duties required him to repetitively lift boxes weighing between 5 and 25kgs. Whilst that is a relevant part of the history, it overlooks the critical evidence from Mr Toplis that he had no symptoms until 26 November 2007. If, as Dr Matalani asserts, the fractures were precipitated “over a period of time” then one would have expected Mr Toplis to complain of symptoms during that period. Not only did he not complain of symptoms during the period up to 26 November 2007, he continued to perform his normal duties and told Dr Bodel that he was “quite well” at the time of the incident on 26 November 2007.
The fact that Dr Bodel did not take a history of the weights Mr Toplis lifted is of no consequence and does not mean that Dr Matalani’s opinion should be preferred. Dr Bodel took a history that Mr Toplis worked as an order assembler picking and packing approximately 120 items per hour up to the middle of 2007 when the rate increased to 180-200 per hour. He was well aware of the kinds of items Mr Toplis lifted, as he referred in detail to the box of eight 2-litre bottles Mr Toplis lifted during the course of his normal duties on the day of his injury.
Whilst I do not agree that Dr Matalani gave no explanation of how the fractures occurred, I do not accept that his evidence, considered with all the other evidence in this case, is persuasive on the issue in dispute. His explanation is that, given the absence of any other injury, it was “reasonable to conclude, on the balance of probabilities that the heavy nature of his work over many years may well have precipitated his multiple fractures”. He added that the fractures “might have been precipitated, possibly over a period of time, by the heavy nature of” Mr Toplis’ employment with Coles. He also stated that the fractures “could well be related to the nature of his employment”.
Dr Matalani’s statements in his supplementary report, that the fractures “may well have” or “might have” been precipitated by the nature of Mr Toplis’ duties, or “could well be” related to those duties, suggest a possible connection and are unpersuasive. The burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists (see Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [80]). However, as noted by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [61]), “the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.” Such an inference is not open in respect of the injury allegedly received between March 2002 and 26 November 2007 because the evidence is that Mr Toplis experienced no symptoms until 26 November 2007. There is no “clinical correlation” (see Dr Sacks’ report at [19] above) between Mr Toplis’ symptoms and his employment between March 2002 and 26 November 2007, and Dr Matalani gives no explanation for the absence of back symptoms in that period.
Dr Matalani has also misstated the test to be applied. He said that Mr Toplis’ duties were a substantial contributing factor to “his current disabilities”. Employment does not have to be a substantial contributing factor to the “disability,” it must be a substantial contributing factor to the injury (section 9A of the 1987 Act). Dr Matalani has not offered an opinion on that question.
Though it is poorly drafted, given the history recorded and the opinion expressed as to the cause of Mr Toplis’ permanent impairment, Dr Matalani’s opinion on causation in his first report is clearly directed to the work Mr Toplis performed on 26 November 2007. That opinion cannot stand in the light of Dr Matalani’s supplementary report where he conceded that he agreed with Dr Bodel that there were no indications of acute fractures related to the injury of 26 November 2007.
The evidence overwhelmingly supports Coles’ position, namely, that Mr Toplis received no injury between March 2002 and 26 November 2007. That evidence, which I accept, includes:
(a)Mr Toplis’ evidence in his claim form that he had not experienced any similar injuries or conditions before 26 November 2007;
(b)Mr Toplis’ evidence in his statement that he hurt himself on 26 November 2007 “as a result of lifting a box of soft drinks”. Though the next paragraph in his statement suggests that he hurt his back, neck and legs as a result of the “nature of [his] work”, he did not say or imply that he had any symptoms prior to 26 November 2007;
(c)the evidence in the report from Dr Timothy J Sharp and Associates recorded that Mr Toplis’ problems were associated with the injury on 26 November 2007;
(d)there is no evidence that Mr Toplis experienced any difficulty in performing his usual duties in the months leading up to 26 November 2007, notwithstanding that the pick rate had increased substantially to 180-200 cartons per hour;
(e)every medical history is consistent with Mr Toplis having developed symptoms as a result of lifting at work on 26 November 2007. In particular, Dr Bodel stated that “the episode of injury that occurred on 26 November 2007 is the event which instigated his symptoms”, and
(f)Dr Matalani’s evidence, that Mr Toplis “denied any trauma to his back or other injuries to his thoracic spine” other than the injury on 26 November 2007, is inconsistent with an injury having been received before that date.
Overall, having considered all of the evidence, I prefer Dr Bodel’s evidence to Dr Matalani’s opinions. Dr Bodel’s opinion is logical and consistent with the evidence of Mr Toplis having experienced no symptoms until the lifting incident on 26 November 2007, and with the radiological evidence that the fractures appear to be “long standing and stable with early spondylitic change”. Dr Matalani’s statement that Dr Bodel had not specifically excluded the possibility that the fractures might be related to the nature of Mr Toplis’ duties reverses the onus of proof. It is for Mr Toplis to prove that he sustained an injury, not for Coles to disprove it. He has failed to do that.
Coles concedes injury on 26 November 2007 and the assessment of the impairment resulting from that injury is a matter for an AMS. I note, however, that Dr Bodel concluded that Mr Toplis suffered a musculo-ligamentous strain in the interscapular region of the thoracic spine and the lower part of the back “aggravating long standing pre-existing degenerative change and wedge compression fractures in this region” as a result of the lifting incident on 26 November 2007. Though the injury has caused an aggravation of degenerative changes and aggravation of the wedge compression fractures, that does not mean it is an aggravation injury under section 4(b)(ii) (Rail Services Australia v Dimovski and anor [2004] NSWCA 267; (2004) 1 DDCR 648; Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52), but the pathology revealed on the radiological investigations will be relevant to the assessment of Mr Toplis’ whole person impairment, especially in circumstances where the evidence is that he was asymptomatic prior to 26 November 2007.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in rejecting Dr Matalani’s supplementary report but, for the reasons given in this decision, that error makes no difference to the end result or the ultimate orders made. As Mr Toplis did not receive an injury as a result of lifting heavy weights in the course of his employment between March 2002 and 26 November 2007, Dr Matalani’s supplementary report is of no relevance to the AMS and should not be referred.
Paragraph five of the Certificate of Determination must be amended as it incorrectly refers to the AMS being asked to assess the degree of “further” permanent impairment. This claim is not a claim for further impairment but a claim for an assessment of the whole person impairment resulting from the injury to Mr Toplis’ thoracic and lumbar spines. As both medical experts have assessed Mr Toplis to have no whole person impairment as a result of the condition of his cervical spine and no claim for lump sum compensation is made in respect of it, no assessment is sought in respect of the cervical spine.
DECISION
For the reasons given in this decision, paragraphs one, two, three, four and six of the Arbitrator’s determination dated 25 March 2009, as amended on 1 April 2009, are confirmed. Paragraph five is revoked and the following order made:
“5.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of the injury to his thoracic and lumbar spines on 26 November 2007.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
19 June 2009
I, TUYET WALLIS, 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
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