Transley Solutions Pty Ltd v Steve Kagiorgis - [2010] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Transley Solutions Pty Ltd v Steve Kagiorgis [2010] NSWWCCPD 45
APPELLANT:		Transley Solutions Pty Ltd
RESPONDENT:		Steve Kagiorgis
INSURER:		Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:		A1-5364/09
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		24 December 2009
DATE OF APPEAL DECISION:		29 April 2010
SUBJECT MATTER OF DECISION:		Injury and causation; weight of the evidence; onus of proof; interlocutory decision
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Edwards Michael Lawyers
Respondent:		Keddies Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 24 December 2009 is for the reasons stated herein confirmed.
The Appellant is to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

Steve Kagiorgis (‘the Worker’), who is 46 years of age, commenced employment with Transley Solutions Pty Ltd (‘the Appellant’) in January 2002 as a truck driver. The Worker describes the vehicle used in the course of his work as a “pantech truck”. He worked mostly without the assistance of an offsider, and his duties involved loading and unloading the vehicle, which was utilised most days of the week for the transportation of large bags of discarded clothing which had been accumulated by the charitable organisation St Vincent de Paul. One day a week, the Worker was engaged in transporting food supplies for that organisation.

The Worker performed those duties until 2 October 2003, on which day he received injury when he fell from the vehicle to the ground whilst in the course of unloading bags of clothing at a rubbish depot at Bankstown. He alleges that he received injury to his right knee and back in that fall.

The Worker completed his duties on the day of his injury with difficulty. The Worker sought medical treatment the following day and was unable to resume duties. He has been unable to return to work by reason of alleged incapacity since that time.

The Worker’s past medical treatment includes a lengthy hospital admission which commenced on 19 November 2003, following diagnosis of spinal infection. A claim for weekly benefits was made by the Worker against his employer, and payment was made until a date in September 2005. In that year, the Worker was advised to undergo surgical treatment to his spine. However, liability with respect to such treatment was declined by the employer’s insurer. Payments of weekly benefits ceased on 26 October 2005, following service upon the Worker of a Notice of Discontinuance of Compensation Payments issued pursuant to section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Worker subsequently underwent lumbar spinal fusion as a public patient on 10 April 2006.

On 29 July 2008, a claim for lump sum benefits in respect of alleged whole person impairment was made on behalf of the Worker against his employer and its insurer. That claim was declined by the insurer, and the Worker proceeded to register an Application to Resolve a Dispute (‘ARD’) with the Commission on 9 July 2009. That Application sought an award only in respect of lump sums pursuant to section 66 and section 67 of the 1987 Act.

The dispute between the parties came before an Arbitrator on 20 August 2009. The Appellant denied that the Worker had received injury to his back necessitating surgical treatment. That issue in dispute, being one concerning liability, required determination by the Commission before referral of the matter for assessment by an Approved Medical Specialist (‘AMS’) in accordance with Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 Act: section 321(4)(a).

The Arbitrator reserved his decision and a Certificate of Determination was issued on 4 September 2009, which was accompanied by a Statement of Reasons (‘Reasons’). The Arbitrator made a determination in favour of the Worker that the spinal infection suffered by him following the subject fall had been caused by the work injury which occurred on 2 October 2003. That determination included findings of fact concerning the occurrence of a cut or abrasion to the worker’s knee, a haematoma to the spine and subsequent infection. In the circumstances, as required by the provisions of the Acts, the matter was remitted to the Registrar for referral to an AMS for the purpose of assessing the extent of any permanent impairment suffered by the Worker.

The matter was referred to Dr Thomas Rosenthal, an AMS, for assessment of whole person impairment resulting from injury as found by the Arbitrator to the Worker’s lumbar spine. A Medical Assessment Certificate (‘MAC’) was issued by Dr Rosenthal on 2 October 2009. The total whole person impairment (‘WPI’) certified was 22 per cent.

The matter was returned to the Arbitrator following that assessment, given the circumstance that the parties remained in dispute with respect to the Worker’s entitlement to lump sum payments. The matter was heard before the Arbitrator on 15 December 2009, at which time short oral evidence by the Worker was adduced. The Arbitrator reserved his decision. A Certificate of Determination was issued on 24 December 2009, which was accompanied by a statement of the Arbitrator’s reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 24 December 2009, records the Arbitrator’s orders as follows:

“The Commission determines:
1.   Respondent to pay $32,500.00 for 22 per cent WPI.
2.   Respondent to pay $25,000.00 for pain and suffering.
3.   Respondent to pay the Applicant’s costs as agreed or assessed. I certify the matter is complex and the parties are entitled to a 30 per cent uplift.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Application Seeking Leave to Appeal Against Decision of Arbitrator was filed on behalf of the Appellant on 21 January 2010.

ISSUES IN DISPUTE

The Appellant, in carefully considered and presented submissions provided in support of the Appeal, summarised the matter in dispute which was raised before the Arbitrator as follows:

“The main issue in dispute at the arbitration on 20 August 2009 was whether the origin of the relevant infection could more probably than not be attributed to the Worker’s injury on 2 October 2003 and this involved the factual issue of whether or not the worker had suffered an injury in the form of a break in the skin in the relevant incident. In short, at issue was whether the injurious event had produced the pathology which led to surgery and continues to cause symptoms and whether or not the employment was a substantial contributing factor in the development of the pathology.”

The Arbitrator made a finding of fact that the osteomyelitis and discitis in the Worker’s back were caused by the subject fall. In so concluding, the Appellant submits that the Arbitrator erred in the following respects:
(i)Error of fact in concluding that the Worker suffered a cut to his knee as a result of the fall on 2 October 2003.
(ii)Failing to provide adequate reasons for the rejection of the expert medical evidence relied upon by the Appellant concerning causation of infection
(iii)Misdirecting himself as to the onus of proof in circumstances where alternative causes of infection had been raised on the evidence.
(iv)In determining that the Worker had discharged the onus upon him of proving that he had suffered a cut to his knee in the fall, and that such cut caused the infection which produced the condition which gave rise to the necessity for surgical intervention.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

As noted below at [33] and [34] there is no transcript available of proceedings which occurred on 15 December 2009. That evidence was brief and addressed those matters summarised by the Arbitrator in the course of his Reasons. That evidence did not address the issues raised on this appeal. I do not consider the absence of a transcript to be an impediment to hearing the matter on the papers.

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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.

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act, which must be met before a grant of leave to appeal may be made by the Commission.

Section 352(4) of the 1998 Act provides:

“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”

The Worker asserts that the Application Seeking Leave to Appeal was filed out of time. It is submitted that the issues in dispute concern the Arbitrator’s factual findings concerning the allegation of injury and causation made in the Determination dated 4 September 2009. It is argued that the Arbitrator’s findings made in the course of that Determination finally disposed of the rights of the parties, and was thus not an interlocutory decision within the meaning of section 352(8) of the 1998 Act. It is asserted that the Appellant mistakenly identifies the Arbitrator’s decision made on 4 September 2009 as being an interlocutory decision within the meaning of the last-mentioned subsection. It is argued by the Worker that the Appellant has failed to advance any explanation for its failure to seek a review of that Determination at an earlier stage, and that leave should be refused. The Appellant seeks to refute these arguments in submissions.

The Worker’s argument requires consideration of the provisions of section 352(8) and the provisions of clause 200B of the Workers Compensation Regulation 2003. Section 352(8) provides:

“(8) In this section,
"decision" includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”

Clause 200B provides:

“For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”

The term “interlocutory” is not defined, and the distinction between final and interlocutory orders is not, as observed in earlier Presidential decisions, easily drawn. The difficulties thrown up by these provisions are well-illustrated in the decision of Moore v Greater Taree City Council [2009] NSWWCCPD 17 (‘Moore’), where the following observation was made by Snell ADP (at [40]):

“It is apparent from the above, that application of section 352(8) and clause 200B, in circumstances where some findings or orders are made, but final orders depend upon assessment by an AMS, has the capacity to cause practical difficulties. The overall thrust of the above decisions, is that where an arbitration results in a matter being referred to an AMS for assessment, even accompanied by other orders to which one of the parties may object, such decisions tend to be characterised as ‘interlocutory’.”

The practical difficulties to which Snell ADP referred in the matter of Moore are perhaps well-illustrated by an examination of the circumstances and outcome of two recent appeal determinations which I have made. Those are the matter of RE & PC Richards Pty Ltd v Eggins [2010] NSWWCCPD 2 (‘Eggins’) and Edmund Diab v Salem Naji [2010] NSWWCCPD 33 (‘Diab’). Each of those matters involved a challenge to an Arbitrator’s order remitting the matter to the Registrar for referral for assessment of whole person impairment by an AMS. In that respect, those matters are similar to the present one. In each of those matters, as with the present case, the worker’s claim was limited to one for lump sum compensation in respect of whole person impairment. In Eggins, the Appellant’s complaint was that the Arbitrator had remitted the matter to the Registrar for referral to an AMS without adjudicating the question as to whether, on the evidence, the effects of the undisputed injury had ceased. The dispute was characterised as a medical dispute within the meaning of section 319 of the 1998 Act. It was determined on those facts that the order of remitter was interlocutory within the meaning of section 352(8), and that no appeal could be brought against such order.

The Appellant in Diab challenged the Arbitrator’s finding of injury to the worker’s neck and back, but conceded the occurrence of an injurious event that had caused injury to other parts of the worker’s anatomy, which required assessment by an AMS. I expressed the view in Diab that the term “decision” as it appears in section 352(8) includes not only the determination as it appears in the Certificate of Determination issued by the Arbitrator, but also those findings of fact with respect to matters in dispute between the parties as found in the course of the Arbitrator’s reasons (at [16]). The conclusion in that matter was that the Arbitrator’s findings with respect to the fact of injury to the worker’s back and neck were findings with respect to liability as required by the provisions of section 293(3) of the 1998 Act, and that such decision was not one of an interlocutory nature within the meaning of section 352(8).

In the present case the Arbitrator’s findings of fact made in the course of his Reasons as expressed for ordering the remitter of the matter on 4 September 2009 are analogous to those matters requiring adjudication in the matter of Diab. In the circumstances, it may have been arguable, had the Appellant so elected, that an appeal was available from the Arbitrator’s finding with respect to relevant facts leading to the conclusion that there had been proof of injury, being causation of the infective process of the Worker’s spine. That course was not adopted, and the present appeal is brought following the assessment made by the AMS, the issue of his certificate, and a determination by the Arbitrator of the Worker’s entitlement to lump sums. It is that Determination, made on 24 December 2009, which is the subject of this appeal.

The Arbitrator’s finding of fact concerning the Worker’s allegation that he received a laceration and haematoma as a result of the fall was not challenged following the remitter ordered on 4 September 2009. The Appellant’s election not to challenge that finding by way of an appeal pursuant to section 352 of the 1998 Act does not, in my view, create a bar to the Appellant seeking leave to challenge the Determination made on 24 December 2009. In the event that leave is granted to pursue such an appeal, the Arbitrator’s finding of fact concerning the nature of the injury may be ventilated. The Determination dated 24 December 2009 represents a final determination of the claim as litigated by the Worker, and its correctness or otherwise requires a review as to whether the factual findings were correct or otherwise. Those findings, whilst arguably challengeable at an earlier time, were one step in the proceedings leading to the Arbitrator’s order of remitter made in September 2009, and his ultimate Determination made in December 2009.

It has been earlier stated that caution needs to be exercised when guidance is sought concerning the nature of interlocutory proceedings and orders as expounded in common law judgments (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’) (at [35]-[37])). I respectfully agree with those observations made in Hawkins having regard to the legislative and proceedural framework of the Commission, however I consider that the decision of the High Court in Bunning v Cross (1978) 141 CLR 54 (‘Bunning’) provides valuable guidance. In Bunning, Jacobs J spoke of the concept of an “interlocutory stage” of proceedings. His Honour found that there was no necessity for a party to seek leave to challenge a finding made in the Supreme Court that evidence had been unlawfully obtained “in order to enable this Court at this later stage in the proceedings to consider the question whether the evidence was unlawfully obtained …” (at [82]). In the present case, whilst the Appellant may have elected to challenge the Arbitrator’s finding at that “interlocutory stage”, the fact that no such application was made does not prevent the Commission at this later stage from reviewing that factual finding which forms the basis of the final order.

For the reasons I have attempted to outline above, I reject the Worker’s submissions in support of the argument that the Appellant is barred by reason of effluxion of time from bringing this Application Seeking Leave to Appeal.

In the circumstances, I conclude that the appeal has been lodged within the time prescribed by section 352(4). Having regard to the arguments raised on appeal and given the fact that there is no dispute that the monetary threshold prescribed in section 352(2) has been met, leave is to be granted to proceed with the appeal, and I so order.

Should I be wrong in my approach to the application of section 352(4) to the present facts, I note that the Appellant has sought leave to have time to appeal extended (Rule 16.2(11)). In the present circumstances I consider that such application has merit and should, if need be, be granted.

EVIDENCE

The documentary evidence before the Arbitrator is noted at [5] of Reasons. That material comprised the Application to Resolve a Dispute and all documents attached thereto, excepting the reports of Dr Evans and Dr Dave. Also before the Arbitrator was the reply filed on behalf of the Appellant and all documents attached thereto. The Arbitrator is recorded at page 2 of the transcript of proceedings conducted on 20 August 2009 as ordering the admission of a late document, being a report of Dr Tsamoglu dated 20 July 2009, tendered by the Worker. The Arbitrator notes at [6] of Reasons that sworn evidence was given at the hearing conducted on 15 December 2009. That evidence was given by the Worker.

Absence of transcript of proceedings heard 15 December 2009

Proceedings before the Commission are recorded and, in circumstances where an appeal is brought, a transcript is produced and provided to the parties. That has taken place with respect to the hearing in the present matter conducted before the Arbitrator on 20 August 2009. However, by reason of technical failure which has been unexplained, there is no recording available of the proceedings conducted on 15 December 2009. In the circumstances, the Commission does not have available a transcript of the evidence given on that day by the Worker, nor is there a transcript of submissions put by counsel then appearing. The parties have been advised by the Commission of the absence of that transcript, and each has informed the Commission that it wishes to put no further submission. I infer that each party accepts that the absence of the transcript is no impediment to the proper conduct of the appeal.

The evidence given by the Worker before the Arbitrator is described at [12] of Reasons as being “short oral evidence”. The Arbitrator summarised that evidence in the course of his Reasons and it is clear that the subject matter of that evidence concerned matters relevant to the assessment of entitlement for pain and suffering. That summary does not suggest that any matter was put in cross-examination concerning the nature of the injury sustained by the Worker in the subject fall.

The Commission has the advantage of thorough submissions presented by each party on this appeal and, in those circumstances as earlier noted, I consider that absence of the transcript does not prevent a fair and just determination of the matters raised on appeal.

The Worker’s evidence

There were two written statements made by the Worker in evidence. The first was dated 27 January 2009, in which the Worker described his background. He first came to this country in 1984 and had returned temporarily to his native Greece on two occasions, firstly in the 1980s, and then in the early 1990s. In 2001, he moved to Sydney from Perth, where he had been working with his brother as a labourer in the demolition and excavation industry, following which, in January 2002, he commenced employment with the Appellant. He was engaged as a truck driver, and his duties on most days involved transporting clothing and food supplies. He worked without an offsider on most occasions. He was required to load and unload the truck. The bags of clothing, which varied in weight between 20 kg and 60 kg, had to be manually handled, as the truck was not equipped with lifting equipment. The Worker was instructed to pack the truck to full capacity. It was described as a “pantech truck”, and his instructions were to “pack it right to the roof and right to the back of the truck”. His daily routine involved picking up clothing throughout the day, and visiting a rubbish tip at the end of the day to discard the load. The load area of the truck was fully enclosed and had two large doors at the rear of the vehicle. The tray of the truck was approximately 1-1½ metres off the ground.

To unload at the tip, it was necessary for the Worker to climb up onto, and into, the back of the vehicle to enable the bags to be pulled from their position out of the truck and onto the ground.

The Worker described an incident which occurred on 2 October 2003 at approximately 2:00 pm, when he attended the rubbish tip at Bankstown and was in the process of unloading bags of clothes from the back of the truck. On that day, in addition to the bags of clothing to be discarded, there was “other rubbish which had been packed into the truck”. That rubbish had been loaded by the Worker beneath the bags of clothing, and the bags were stacked “right to the back of the truck and to the roof of the pantech section”. As the Worker was unloading the bags of clothing, he lost his balance, and fell to the concrete ground below him, landing heavily on his right knee, which hit the concrete. The Worker remembered falling to the ground, “lying on my side and front”. As he was prone on the ground, one of the bags fell from the truck and struck him on his lower back. That bag fell a distance of “more than two to three metres”, and the Worker experienced “a lot of pain, particularly in my right knee”. At that time, he also experienced an ache or discomfort in his low back.

The Worker stated that he remembered that his right knee was “not just grazed, but actually cut”. He stated that the edges of the cut were “gaping”. The wound was bleeding and his knee was “extremely sore”. The area upon which he fell had been used for the dumping of rubbish and “it was not very clean”.

The Worker completed the unloading operation slowly and experienced “a lot of pain”. At about 3:00 pm, he drove his employer’s truck directly to his home. He would normally have dropped the truck off before proceeding to his home. He rang the Appellant’s office on that afternoon, reporting his injury and notifying it that he would not be bringing the truck back to the depot.

That night, the Worker’s right knee was very sore and swollen, and his low back was sore. At that time, his “major problem” was his right knee condition. The following morning, the Worker returned the truck to the depot and again reported his injury. He was advised to see Dr Prasad. He attended Dr Prasad that morning and described the circumstances of his injury. The Worker stated that he recalled Dr Prasad putting “some sort of antiseptic liquid on my knee”, and he was told that it would take a week or two to completely heal. The doctor bandaged the knee and advised him to take three days off work. After returning to his home via the St Vincent de Paul depot, he had bed rest for the rest of that day and all day the following day, a Saturday. At the end of that day, he noticed increasing pain in his low back, as well as “significant pain and swelling and redness in my right knee”. By the following day, Sunday, the pain in his back had “increased severely and I had great difficulty in getting out of bed or mobilising”.

On Monday 6 October 2003, by reason of significant low back pain, the Worker attended St George Hospital. The Emergency Department arranged for x-rays of his low back to be taken, and he was discharged with medication and a certificate of unfitness for work. He was advised to consult his general practitioner should the condition worsen.

The Worker consulted his general practitioner, Dr Tsamoglou, the following day. He was prescribed medication and referred for physiotherapy treatment. At that time, the Worker’s “major problem” was pain in his low back. At that time, his knee remained swollen and red, and the “cut looked angry and inflamed”. The Worker recalled that the cut “took at least a week, perhaps two, to heal”. He stated that the cut left a scar on his knee which is “still obvious”.

The Worker remained off work and continued to experience back pain. He returned to Dr Tsamoglou on 13 October 2003. The Worker stated that he could not have returned to work and that he had, at that time, spent most of his time in bed. On 16 October 2003, the Worker was referred by Dr Tsamoglou to Dr Diwan, orthopaedic surgeon. A consultation with Dr Diwan occurred on 17 October 2003. At that first consultation, Dr Diwan “took some blood for pathology testing”. The Worker stated that he understood that the blood tests established that he was “suffering from a severe infection” in his lumbar spine. Dr Diwan made urgent arrangements for further investigations and treatment. The Worker’s admission for such investigation was delayed by reason of communication difficulties, given that he had, because of his condition, been staying with a friend rather than at his own home.

The Worker attended St George Hospital on 19 October 2003, at which time he had severe low back pain, and was suffering from fevers and sweats. The Worker was informed that a biopsy which had been conducted demonstrated an infection in his low back. He was treated as an inpatient under the care of Dr Diwan and Dr Lawrence, an infectious diseases specialist. He remained as an inpatient until 27 November 2003.

The Worker stated that he claimed workers compensation benefits and was paid weekly benefits until 28 September 2005. He had received no weekly payments since that date.

The Worker described his physical condition since that time, which involved significant back pain and pain in his right leg and foot, as well as anxiety, panic attacks, and dizziness. The Worker was advised by Dr Diwan to undergo further treatment, including surgery to his back. The Appellant’s insurer declined liability with respect to such treatment, and the Worker underwent surgery as a public patient on 10 April 2006. The Worker believed that the surgery performed involved “spinal fusion at levels [sic] L2-3”. A second procedure took place on 19 April 2006, which the Worker understood to involve “debridement of the surgical wound”. The Worker’s statement concludes with a summary of pain and disability which he had suffered since discharge from hospital.

The second statement upon which the Worker relied was dated 30 June 2009. It was stated that the person to whom the Worker reported his injury on the day of its occurrence was a woman in the office known as “Marie or Mary”. The Worker reported injury to his back and that he had cut his right knee. He also mentioned that his right knee was swollen and sore. The Worker recalled telling that woman that a bag had fallen from the truck onto him as he was on the ground. He was instructed to take the truck home and to return it to the depot the following morning if he was able to do so.

The Worker stated that he recalled that he was wearing shorts on the day of the injury. He stated that, shortly after the fall, as he continued unloading the truck, he took a tissue or paper towel from the truck and held it to his knee “until it stopped bleeding”. He had a distinct memory of part of the tissue “sticking to the wound and me having to remove it later that night when I again cleaned up the wound”.

The Worker stated that, on Friday, 3 October 2003, when he attended the depot to return the truck, he showed Marie or Mary the cut on his right knee. It was stated that her response was an observation that it was swollen and that he “should see a doctor”. It was then that she nominated Dr Prasad of Waverley, whose details were noted by her on a piece of paper and given to the Worker. During the discussion, that woman stated that it was necessary that she “fill out an Incident Report”, and she said to the Worker, “Tell me again how the accident happened. I have to report it”. The Worker stated that he again described the circumstances of the fall, including the fact that a bag fell onto him and that, when he got up, he noticed a cut to his right knee which was bleeding. He also stated to her that he had a “pulling or aching sensation in my low back”.

The Worker stated that, when he attended Dr Prasad, he showed him the cut on the right knee and described the accident. At that time, his right knee was red and swollen, and was “quite sore”. Dr Prasad treated the cut.

The Worker stated that, on the first occasion he attended St George Hospital, he could not recall telling those attending him about the cut on his right knee. He stated, “I simply thought that was a cut and that it would get better”. At that time, he was more concerned about his significant back pain. He had earlier treated the knee with “antiseptic”. At the time he first attended the hospital, the cut had “formed a scab”. He stated that the wound was “a bit red and angry around the scab, but it was not so swollen or inflamed or infected that it caused me any great concern”. He stated that he “definitely had a cut on his knee”. It was described as being 2 cm long, through the skin, but “not as deep as the bone”. The Worker stated that he still had a “small scar in the area where that cut occurred”.

The Worker made reference in his statement to the workers compensation claim form which he signed on 31 October 2003. It was stated that he did not complete the whole form and did not recall who completed the document. It was stated that the description of the injury that appeared on that form was not correct. The Worker stated that he could read very little English and that his spoken English “is quite fractured and poor”.

The Worker stated that he did not recall being treated for boils on his back as recorded in the notes of Dr Tsamoglou, and stated that he did not have any problems with pain or discomfort in his low back at any time whilst engaged in work before 2 October 2003.

The Worker stated that he thought he told Dr Tsamoglou that his right knee was sore. He did not remember whether he told him the knee was cut. His “main concern” at that time was his low back.

The Worker relied upon the contents of a statement made by Mr Mike Tzagaris. That witness stated that he was a friend of the Worker and that, in 2002, he was residing in shared accommodation with him at Brighton-le-Sands. Mr Tzagaris stated that, on about 2 October 2003, the Worker returned from work and said that he had injured himself at work on that day. The Worker described the circumstances of his injury, and it was stated that the Worker “showed me the cut to his right knee”. The cut was stated to have been “on his kneecap and was about 2 cm long”. That witness observed the Worker’s right knee and noted that it was red and swollen, and it was stated, “It is clear he had a cut [sic] his right knee that evening, with the cut appearing to be very red and inflamed”. The cut was no longer bleeding and a scab had formed.

The Worker relied upon the evidence of Dr James G Bodel, orthopaedic surgeon, as appears in two medical reports bearing the date 15 January 2008. Those reports were compiled following a consultation with the Worker and Dr Bodel’s perusal of documentation provided by the Worker’s solicitor. Dr Bodel recorded a history of injury on 3 October 2003. Dr Bodel recorded a fall from the back of a truck, as a result of which the Worker had “a cut on his left leg and also injured his right knee, but unfortunately one of the heavy bags then fell on him. This caused increasing lower back pain”. Dr Bodel noted that the history in relation to grazing and the cut contrasted with other records which had been provided to him. He noted that “there is no significant scarring on either area and it is difficult to be certain which area was damaged”. The admission to St George Hospital was noted, as was the then diagnosis of osteomyelitis in the L3 vertebral body with associated discitis in the L2/3 disc.

Dr Bodel summarised a number of reports which had been compiled by medical practitioners concerned with the Worker’s treatment, including an assessment by Dr Thomson. Dr Bodel noted Dr Thomson’s opinion that the discitis and the infection in the L3 vertebral body were due to a “blood-borne infection”. It was noted that Dr Thomson opined that there was a probable causal link between the cut on the right leg and the subsequent infection in that region and the discitis in the back. Dr Bodel expressed his agreement with that analysis and diagnosis. Dr Bodel noted that Dr Thomson had raised some doubt as to that diagnosis some time later. However, Dr Bodel expressed the view that “it is still the most likely scenario”. At page 4 of the first report dated 15 January 2008, following a further summary of the material provided to him, Dr Bodel stated:

“On balance therefore it is likely that there is a direct causal link between the event that occurred at work on 03 October 2003 and the serious spinal injury pathology which developed within a few weeks of that date.”

Dr Bodel stated that the likely mechanism of injury involved the entry of infection through “the relatively minor abrasion on either the right or left leg leading to a blood borne spread (haematogenous) spread [sic] of infection to the vertebral area.” Dr Bodel stated that there was “certainly no history of any other event which is likely to have led to this type of infection. An alternative scenario is a lumbar haematoma which became infected secondarily, again by blood-borne spread. I think this less likely”. Dr Bodel proceeded to deal with matters that were not directly relevant to the matters raised on this appeal and, in the second of his reports, assessed whole person impairment resulting from the subject injury.

The balance of the documentary evidence relied upon by the Worker comprised a large number of medical reports, medical records and copies of correspondence passing between those practitioners who were concerned with the Worker’s treatment. As noted above, the evidence of Dr Evans and Dr Dave were excluded by the Arbitrator. The documentation also included a copy of a workers compensation claim form and relevant correspondence. Those documents exceed 500 pages, and it is not intended to attempt to summarise the contents of each. It is proposed to make reference to those documents relevant to the issues raised on appeal in the course of discussion which appears hereunder.

The Appellant’s evidence

The Appellant relied upon three reports compiled by Dr Kalev Wilding, orthopaedic surgeon, dated 2 June 2004, 18 January 2006 and 6 February 2006. Dr Wilding had been qualified by the insurer to provide an opinion as to the existence or otherwise of a relationship between the subject injury and the infection as diagnosed suffered by the Worker. A history was taken by Dr Wilding in the course of the consultation, at which the services of an official Greek interpreter were available. Dr Wilding noted that the subject accident had occurred on 30 September 2003, as stated by the Worker, which date conflicted with the date recorded in a workers compensation claim form that had been provided to the doctor. The circumstances of the Worker’s fall were recorded, but no notation was made by Dr Wilding of the circumstance involving the Worker being struck by a falling bag whilst on the ground. Dr Wilding summarised the Worker’s subsequent history of treatment, including the diagnosis made by Dr Diwan in October 2003 of discitis with vertebral osteomyelitis. The history included notation of the Worker’s statement that “he had abraded his right knee, which was slightly swollen and aching” at the time of the fall. Back pain was recorded to have developed one-and-a-half hours after the fall.

Dr Wilding, in the first of his reports, noted that Dr Diwan had reported that he was not able to identify any contributing factors or any pre-existing condition that may explain the Worker’s infection. Dr Wilding noted Dr Diwan’s “suspicion that following the injury he may have developed a small haematoma in that area which could possibly have become secondarily infected”. Dr Wilding expressed the view that such an occurrence “is unlikely” and that he was not aware of any similar case in the literature identifying a causal relationship between a fall onto the back and the development of discitis.

Dr Wilding stated, with respect to the question of causation, that “there obviously has been an infection somewhere and simply a pimple on the skin could even be the origin of the infective process. Similarly, a dental infection may be the origin of bacteraemia, resulting in the infective process”. Dr Wilding also noted that “the abrasion on the knee on the history I obtained was not infected and I feel it is unlikely that this has been the source of the bacteraemia, although it cannot be entirely excluded”.

The report of Dr Wilding dated 18 January 2006 made reference to a video recording which was not in evidence before the Commission.

The report of Dr Wilding dated 6 February 2006 noted that the organism identified following biopsy of the Worker’s L3 vertebra was identified as methicillin-sensitive staphylococcus aureus. Dr Wilding expressed the view that the likely source of the organism is “the skin”. That report contained comment relating to a report compiled by Dr R Evans. That report had been excluded from evidence by order of the Arbitrator. Dr Wilding proceeded to reiterate certain matters raised in his first report, and stated that he did not consider there was a causal relationship between the fall at work and the development of spinal infection; he considered that the relationship was coincidental, but stated that he could not be dogmatic about that matter. Dr Wilding’s final comment in that report was “I do consider that there is a likelihood that the abrasion may have been the source of bacteraemia, but I cannot be more definite than that”.

The Appellant relied upon the contents of three reports from Dr J M Matheson dated 5 November 2004, 15 August 2005 and 7 December 2005. The Worker was reviewed in consultation with Dr Matheson at the time of the first report, at which time he attended with an interpreter. A history was recorded of the subject fall and that the Worker had “cut the top of his right knee”. It was also recorded by Dr Matheson that a bag that the Worker was tipping out “fell across his back, although I could not work out how this happened”. Also noted was that the cut was minor and “just really a graze”. Dr Matheson’s report contained a summary of the Worker’s subsequent history of treatment and investigation. The diagnosis as recorded by Dr Matheson was that of “an L2/3 discitis”. At the time of that first report, Dr Matheson was unaware of biopsy results.

Dr Matheson expressed the view that discitis “is not a work-related condition”. The condition was described in that report as being a spontaneous infection and that, in many patients, no cause for the infection was found. Dr Matheson stated that the graze on the knee did not cause the problem, and gave a number of reasons for that expressed view. Dr Matheson said that, firstly, the graze healed without any problems; secondly, that there was no evidence of infection within the graze; and, thirdly, the time gap “is too short for it to have produced a discitis, as discitis progresses over a long period of time”. Dr Matheson stated that, if the Worker had an infected wound that caused the condition, the likelihood was that “there would have been days or sometimes weeks before the presentation”.

Dr Matheson’s report of 15 August 2005 contained an amplification of the clinical history, being that the Worker, when treated at St George Hospital, was found to have had a “Psoas abscess and some infection in the body of L3, along with disruption of the L2/3 disc with discitis at that level”. Dr Matheson again described the Worker’s condition as being “a spontaneous infection”, which had no relationship to work.

Dr Matheson’s report of 7 December 2005 made reference to a number of documents that had been made available to him, including a note from Dr Diwan reporting recovery by the Worker from the condition of osteomyelitis of L3 and improvement. Reference was also made to rehabilitation notes relating to the Worker, and a report from Dr James Vote and a report from Dr R Lawrence. Dr Matheson stated that the documents made available “confirm the history that I got”. Dr Matheson remained of the view that the infection was spontaneous, and that there was no case “for it being work-related”.

The Appellant tendered three reports from Dr David Millons, specialist surgeon, dated 21 December 2005, 6 February 2006 and 9 June 2009. The first of those reports followed an examination of the Worker conducted by Dr Millons on 19 December 2005. The Worker was accompanied by an official interpreter on that occasion. Dr Millons observed that the Worker was “short on memory and comprehension”, and that it was not easy to obtain a clear history. Dr Millons recorded the subject fall as involving the Worker losing his footing and falling off the truck onto his right knee, and then over onto his back. The Worker stated that he sustained a small “graze on the knee”. That report contained a summary of the Worker’s treatment and progress since the date of the fall. Dr Millons recorded the diagnosis as at the date of admission to St George Hospital as being “discitis along with vertebral osteomyelitis”. The conduct of biopsy was noted; however, the report did not record the result of those investigations.

Under the heading “Opinion”, Dr Millons stated that discitis is a non-specific term used for a variety of inflammatory conditions involving the intervertebral disc and adjacent vertebral end plates. He stated that the infection is “blood-borne”. The observation was made by Dr Millons that “the origin of the infection may not be immediately apparent”. Concerning the abrasion to the Worker’s right knee, Dr Millons observed that such did not appear to have become infected, and that it healed up within a very short space of time. He expressed the view that he thought it “unlikely that it would have been the source of a bacteraemia”. Dr Millons was of the opinion that it was more likely that the bacterial infection came from some other source, “possibly some minor skin pimple or some deep-seated dental infection”.

The report of Dr Millons dated 6 February 2006 made reference to a large number of documents which had apparently been made available to him by the Appellant’s solicitors. Dr Millons noted the early history and confirmed that he had been informed that the Worker had received a small graze after landing on his right knee, that the wound was dressed, and soon healed up. Dr Millons did not have any timeframe of that healing, but the observation was made in that report that the graze “does not appear to have become overtly infected”. Following a summary of the documents made available to him, most of which were in evidence before the Commission, Dr Millons stated that his earlier views perhaps needed “to be advanced and enlarged with discussion of haematogenous vertebral osteomyelitis as appears to have really been the case here”.

Dr Millons described the infective process. It was stated, “the route of infection in osteomyelitis is by blood spread from a septic focus at another site and the commonest organism is usually staphylococcus aureus”. Considerable attention was given by Dr Millons to a report of Dr Evans. As noted earlier, the evidence of Dr Evans had been excluded by the Arbitrator.

Dr Millons recorded the opinion of Dr Diwan that the Worker may have had an injury and developed a “small haematoma” in the L2/3 area, which “could possibly have become secondarily infected”. Dr Millons’s view was that such opinion was “something of a hypothesis and one would have thought that Mr Kagiorgis would have done no more than perhaps sustain some soft tissue bruising to his back if he did not fall on his back after he landed on his knees”.

Dr Millons observed in his report that the source of the infection “has not really been clearly identified”. He noted that the “skin was broken when he landed on the knee and some of the skin bacteria may have entered the wound. There was certainly no frank wound infection”. Dr Millons reiterated that the bacteria may have been circulating from other sources, as earlier outlined in his report.

Dr Millons expressed the view that the timeframe between the fall and the onset of severe back pain of a few days “seems somewhat short for the development of the severe infection that was subsequently found”. Dr Millons queried whether the full history had been revealed.

The report of Dr Millons dated 9 June 2009 was compiled following that practitioner’s consideration of a number of documents, including the clinical note of Dr Prasad, notes produced by St George Hospital, handwritten medical notes from Dr Tsamoglou, and the Worker’s statement dated 27 January 2009. The report also made reference to medical reports provided by Dr Diwan, Dr Vote, Dr Wilding, Dr Matheson and Dr Evans.

Dr Millons had transcribed the notation made by Dr Prasad in his note made on the occasion the Worker attended on 3 October 2003. Those notes were in evidence and were, to an extent, illegible. However, Dr Millons appeared to have been satisfied that the following represented a fair transcription:

“history of fall yesterday from truck, landed on right knee, complaining of severe pain. Walked hobbling, swollen right knee, suprapatellar effusion. Flexion painful. Tenderness over suprapatella … Prescribed Voltaren and Tramal.”

Dr Millons expressed his agreement with Dr Wilding’s view that the infection suffered by the Worker “may have been a pimple on the skin or a dental infection as the cause of the bacteraemia”.

Concerning the injury to the Worker’s knee, Dr Millons noted that Dr Prasad made no mention of any abrasion on the knee, but commented on the swelling. Dr Tsamoglou, it was noted by Dr Millons, made no mention of any abrasion on the knee. Dr Millons also noted that the Worker reported knee pain and worsening lumbar pain upon his attendance at the Emergency Department of St George Hospital. Dr Millons noted that the hospital recorded a diagnosis of low back pain and it was stated in his report, “x-rays showed no fracture or dislocation and he was discharged home. No mention is made of the right knee”.

Dr Millons referred to the Worker’s statement made in January of 2009 and noted that the Worker’s right knee was described as “not just grazed but actually cut”, with the edges of the cut gaping, the cut bleeding and knee extremely sore. Dr Millons observed that “all of that seems to enlarge on the history of the knee injury, which cannot really be totally confirmed by reference to the contemporary records of the time”. Dr Millons’s summary of the records available to him was that “the medical reports at the time of the fall from the truck indicate that [the Worker] had a swollen knee, but did not make much mention of any abrasion. Even if it is accepted that there was an abrasion, he stated initially that the knee healed up without any problems”. Dr Millons contrasted the contemporaneous records with the statement made in 2009 and made the observation that “all of this would perhaps question [the Worker’s] true recollection of events”.

A workers compensation claim form dated 31 October 2003, signed by the Worker, was attached to the Reply. The injury was detailed at paragraph 2, where it was noted that the Worker fell “on the inside of his truck whilst at work – 03/10/03”. The low and mid-back was identified as the part of the body injured. As noted earlier, it was the Worker’s evidence that he did not complete these portions of the claim form.

A number of documents, including a vocational assessment and an investigation report, were attached to the Reply. Those documents are not directly relevant to the issues raised on this appeal.

SUBMISSIONS BEFORE THE ARBITRATOR

In the course of submissions put before the Arbitrator on behalf of the Appellant, particular attention was given to the state of the evidence concerning the question as to whether the Worker suffered a cut or grazing of the right knee in the subject fall. Emphasis was placed upon the following matters in support of the argument that the evidence before the Commission concerning the consequences of the fall was insufficient to establish that the Worker suffered a graze or cut to his right knee in that fall:

(i)Having regard to the contemporaneous notes of medical practitioners and the St George Hospital, there is no record of grazing or of a cut to the knee.

(ii)The statement of a friend of the worker, Mr Mike Tzagaris, relied upon to corroborate matters concerning the state of the right knee is one made late in the overall history, years after the event, and is in strikingly similar terms to that of the Worker. Such evidence is unreliable.

(iii)There is no evidence from any other person who may have observed the Worker’s knee at or soon after the subject fall.

(iv)The fall from the truck could be found to be coincidental with the “fact that the infection process was already underway”.

(v)The evidence of Dr Vote should be treated with caution, as the history of the Worker having suffered an abscess on his knee is not established on the evidence.

It was submitted on behalf of the Worker that a fall onto concrete as described by the Worker would, as a matter of common sense, “cause at the very least an abrasion”. Emphasis was placed by counsel upon the evidence concerning the nature of the injury, which involved not only the knee but the back. Reference was made to the evidence relating to the Worker being struck by a 60 kg bag of clothing whilst on the ground, and it is put that the Worker “had back pain from day one”.

During the course of submissions, counsel made reference to the photographs of the Worker’s right knee which were attached to the ARD. At T24, the Worker’s counsel stated that a photograph demonstrated a scar above the Worker’s knee. Counsel expressed his willingness to call the Worker for the purpose of demonstrating that scar. The transcript records that the Arbitrator stated, “There’s no need. We accept there’s a scar there”. The Worker’s counsel submitted that the photograph demonstrating the scar was proof that a graze or cut had resulted from the fall. The Appellant’s counsel interposed, stating rhetorically, “Who knows when he got a scar on his knee?”. No agreement was expressly reached as to what was depicted in the photographs.

The Worker’s counsel examined the hospital notes in the course of submissions and submitted that the content would suggest that there had been poor history-taking by those attending the Worker.

Particular attention was drawn by counsel to the evidence of Dr Thomson, who had been qualified on behalf of the insurer to provide an opinion. Dr Thomson rejected the suggestion of there being a coincidence of the onset of infection and the occurrence of injury and, subject to confirmation of injury to the knee involving laceration, believed that was the site from which the blood-borne infection came.

Counsel’s submissions included an analysis of the opinions expressed by Professor Jon Iredell and Dr Millons. Professor Iredell, it was put, suggested the most likely entry site was the right knee wound, even in the absence of prominent suppuration. Counsel contrasted Dr Millons’s view that, for there to be a causal nexus, there needed to be infection at the site of the knee wound. Counsel also emphasised Professor Iredell’s expertise and his expressed view that it was most unlikely that infection would have developed in the absence of injury.

The evidence of Dr Matheson was addressed in the course of counsel’s submissions. It was put that Dr Matheson had an inaccurate or incomplete history as to the sequence of events following the fall and concerning the diagnosis made. With respect to Dr Matheson’s assertion that “discitis is not a work-related condition”, counsel suggested that the diagnosis was misstated and that the Worker’s condition was more accurately described as osteomyelitis with secondary discitis.

Counsel, in the course of submissions, was critical of the view of Dr Millons that the bacterial infection more likely came from some source other than the knee injury, possibly some minor skin pimple or some deep-seated dental infection. It was argued that Dr Millons’s view had been expressed without giving any reason for holding such a view.

Counsel, in response to matters raised by the Arbitrator during submissions, sought to explain the absence of notation of a cut, laceration or abrasion in the contemporaneous medical records which were in evidence. Concerning the hospital notes, it was suggested by counsel that the absence of notations concerning the state of the Worker’s knee may be regarded as an oversight on the part of the hospital. The point was made in submissions that some days earlier Dr Prasad had noted that the knee was swollen; however, there was no mention of swelling of the knee in the notes produced by the hospital. It was also put that the Worker’s attendance at the hospital had been for the purpose of seeking treatment of his back pain, which had worsened, and not “to complain about having a knee laceration”. It was accepted by counsel that the complaints made at the hospital related to “a sore knee and a sore back”. It was also suggested that one likely explanation for there being no notation of a knee abrasion was that it was of little significance, having regard to the Worker’s complaints made overall.

Counsel made reference to the evidence of Dr Diwan and Professor Iredell concerning the relevance of there being a disc injury sustained in the fall. The site of such injury, it was put by counsel, would, in the view of those medical witnesses, be vulnerable to infection. Counsel did not go so far as to suggest, following exchanges with the Arbitrator, that the infection at that site could have come from the Worker’s system generally, having regard to his past history of suffering a boil.

Counsel for the Appellant, in reply to the Worker’s submissions, asserted that the Worker was wrong in his evidence concerning the existence of a cut or laceration. It was not the Appellant’s case that the Worker had “fabricated” that evidence, but that it was “wrong”.

THE ARBITRATOR’S DECISION

This appeal concerns those findings made by the Arbitrator immediately before remitting the matter to the Registrar for the purpose of referral to an AMS for assessment. The Arbitrator stated at [3] of Reasons accompanying that first COD, that the issue for determination was whether the Worker suffered injury to his back that resulted in surgery.

The Arbitrator between [7] and [30] of those Reasons thoroughly summarised the evidence concerning the occurrence of the fall, its circumstances, the Worker’s subsequent investigation and treatment, and the various medical opinions expressed in the reports which had been tendered by the parties.

The Arbitrator found at [32] of Reasons that the Applicant suffered from osteomyelitis. He noted that all the medical experts agreed that such condition is a “blood-borne infection involving bacteria that is normally present on the skin. The normal process is for the bacteria to enter the bloodstream through some break in the skin”.

The Arbitrator stated at [33] that the medical evidence suggested that there were four possible causes of that condition. Those causes were listed as follows:

(i)The bacteria could have entered through a graze or abrasion on the right knee.

(ii)The infection could be the consequence of a haematoma in the lumbar spine as postulated by Dr Diwan.

(iii)The osteomyelitis could be secondary to an infected pimple.

(iv)The osteomyelitis could be secondary to a dental infection.

The Arbitrator noted that there was no evidence of a pimple or a dental infection. The Arbitrator was satisfied that there was some form of cut or abrasion to the Worker’s knee (at [35]). A finding was also made that the circumstances of the accident, involving a bag falling onto the Worker’s back, were such that there is “likely to have been a haematoma to the lower back”.

The Arbitrator at [36] concluded that he was satisfied, on the balance of probabilities, that the osteomyelitis and discitis in the Applicant’s back were caused by the incident on 2 October 2003. The Arbitrator stated further that there was “no evidence of any other cause. Accordingly employment is a substantial contributing factor to the injury”. The Arbitrator noted that there was no dispute that the need for the surgery carried out in April 2006 arose “from the osteomyelitis discitis suffered by [the Worker]”. In the circumstances, an order remitting the matter to the Registrar was made.

SUBMISSIONS ON THIS APPEAL

The Appellant in submissions expressly states that there is no issue that the Worker suffered injury to his back and his right knee as a result of falling from his truck on 2 October 2003. It is said that the nature, extent and consequences of those injuries are in dispute. It is also properly conceded that there was no issue that the Worker developed osteomyelitis and discitis as a result of having developed an infection at his spine, and that it was necessary for him to undergo surgery in the form of a spinal fusion in April 2006 by reason of those conditions. It is accepted in those submissions that the general consensus amongst the medical witnesses was that the infection was blood-borne and had its origin in some open lesion involving a break in the skin, possibly including inside the mouth (at [9]).

The Appellant correctly submits that the assessment made by the AMS and the contents of the MAC may not be relied upon as providing any relevant evidence to establish that the Worker did in fact suffer a cut to the knee on 2 October 2003. It is also put correctly that that evidence, upon the assumption that a cut was received, may not be relied upon to establish that its existence caused the infection which ultimately produced the discitis.

The Appellant submits that the question of causation involves the factual issue of whether or not the Worker had suffered an injury in the form of a break in the skin in the relevant incident.

The Appellant’s submissions at [14] enumerate suggested errors of fact committed by the Arbitrator in the course of his Reasons, as well as suggested errors of law. It is put that the errors of law involve misdirection by the Arbitrator as to the onus of proof, in particular concerning proof of alternative causes of the subject infection, as well as a suggested failure to provide adequate reasons for the preference of the Worker’s medical evidence to that tendered on behalf of the Appellant. It is also suggested that the Arbitrator has erred in failing to address the evidence relied upon by the employer concerning the timing of the presentation of the infection which had been diagnosed in the Worker’s spine.

It is proposed to address the detail of the Appellant’s submissions concerning these suggested errors in the course of discussion hereunder.

The Worker has filed written submissions opposing the appeal. At [19], the Worker challenges the assertion made by the Appellant in the course of its submissions that there is no allegation that the Worker suffered injury to his back other than by way of the infective process. Attention is drawn by the Worker to the evidence concerning the bag of clothing which fell from the truck immediately following his fall, which struck him in the area of his lower back. Reference is made to the Arbitrator’s Reasons at [35], where a finding is made by the Arbitrator in these terms, “The circumstances of the accident with a bag falling on the [Worker’s] back are such that there is likely to have been a haematoma to the lower back”. It is put by the Worker that the Arbitrator found it unnecessary to determine questions raised in argument concerning the relevance of that haematoma to the issue of causation, given his findings relating to the existence of an abrasion to his knee permitting the entry of infection to the bloodstream.

It is suggested in the course of submissions that the employer had failed to acknowledge in the course of its argument concerning causation the fact that the fall occurred at a rubbish tip, which would “not be place of strict hygiene and may well have had some bearing on the occurrence of and transfer of infection from and through a cut or abrasion on the Respondent Worker’s right knee” (at [20]).

The Worker seeks to emphasise the evidence of Dr Thomson, and it is put that the employer appeared to have disregarded that evidence when addressing the question of causation and the probability of there being a cut or abrasion on the Worker’s knee. The point is made that Dr Thomson took the relevant history in February 2005 and it is argued that the history, as recorded by Dr Thomson, corresponds to that stated by the Worker in his written statement made in 2009. Reliance is placed upon Dr Thomson’s opinion that the infection would appear to be a blood-borne infection to the lumbar spine due to a laceration injury and infection to the right knee.

Reliance is placed by the Worker on the opinion of Professor Iredell that infection or prominent suppuration in the knee cut or abrasion was not a necessary pre-condition to the existence of a causal nexus between the knee injury and the spread of infection to the Worker’s spine.
The Worker argues that there is an onus upon the Appellant to adduce evidence with respect to other potential causes or sources of infection being a skin pimple or dental infection as postulated in its expert evidence. Reference is made to the authorities Watts v Rake (1960) 108 CLR 158 (‘Watts’) and Purkess v Crittenden (1965) 114 CLR 164 (‘Purkess’). The Worker argues that there was no evidence that the Worker had infection “elsewhere”, and, in particular, there was no evidence of the existence of a pimple on the Worker’s skin, nor that he was suffering from a dental infection. It is put that the Appellant had failed to discharge the evidentiary onus.
The Worker proceeds to address the arguments raised by the Appellant in the context of the evidence as presented, and it is put that the findings made were open to the Arbitrator on that evidence. It is also asserted by the Worker that the Arbitrator had addressed the totality of the evidence and provided sufficient reasons for his conclusions of fact.

DISCUSSION AND FINDINGS

The Appellant’s challenge to the Arbitrator’s determination is a relatively narrow one. I have attempted to summarise the Arbitrator’s findings at [95] to [100] above. It is important to note that he does not expressly ascribe the infective process to either the cut as found or the haematoma as found. Whilst it appears that the parties have implied a finding by him that the relevant infection entered the bloodstream through the cut, I do not accept that such a finding has been made. In the circumstances it is necessary on this appeal to determine the correctness or otherwise of the Arbitrator’s finding that a cut or abrasion and a haematoma to the lower back had been occasioned by the fall. If one or both are found to be correct, there is a need to determine the existence or otherwise of a causal nexus between the fall and the Worker’s spinal infection.

The nature of the knee injury

The Appellant argues that the Arbitrator’s findings concerning the cut or abrasion were based on speculation and unsubstantiated assumptions. It is also argued that such a finding was against the evidence and the weight of the evidence. A challenge was raised in particular to the Arbitrator’s finding that the wound to the right knee had “healed within a few days”, leaving “no obvious signs of infection”. It is put that there was no evidence to support such findings. The weight of the Worker’s evidence concerning this matter is challenged upon the basis that the relevant statements were made long after the event, in circumstances where the Worker was aware of matters in issue and the nature of the medical evidence relied upon by each party. It is also argued that there was no contemporaneous evidence (save that of Mr Tzagaris) corroborating the Worker’s assertion that he suffered a cut or abrasion.
The Worker’s evidence as to the state of his knee immediately following the fall has been noted at [39] above. That evidence is corroborated by that of Mr Tzagaris, whose evidence was that he observed the Worker’s knee on the night of the fall. His observations are noted at [54] above. I accept the Appellant’s argument that this evidence requires careful scrutiny, given that the Worker and Mr Tzagaris recorded their statements five and a half years following the subject fall. Those statements were made, as pointed out by the Appellant, at a time when the issues in dispute between the parties were well-defined. It is clear that the Worker’s statements had been prepared for forensic purposes. It is clear from the evidence, and acknowledged by the Worker, that his English is poor. There is no indication that the statements which were in evidence were made with the assistance of an appropriately qualified interpreter. I make this observation having regard to the wordage found in the Worker’s statement. The language is sophisticated and I conclude that the statement as recorded does not represent a true transcription of what, in all probability, was stated by the Worker. Whilst I am to an extent troubled by the text of the statement, the evidence remains that the Worker suffered a laceration in the fall, which is described as follows: “I remember my right knee was not just grazed but actually cut. The edges of the cut were gaping. The cut was bleeding and my knee was extremely sore.”

It is the Worker’s evidence that the state of his knee had been observed by Marie or Mary on 3 October 2003, when he attended the depot. As noted at [50] above, it was Marie who directed the Worker to Dr Prasad and who took details of the incident for the purposes of reporting. There was no evidence from Marie, nor was there any evidence concerning her reporting the incident. In particular, there was no evidence that an employer’s report of injury had been filed with the insurer.

The Worker consulted Dr Prasad immediately following his attendance at the depot. As noted by the Arbitrator, there was no report from Dr Prasad. However, his clinical notes, which had been produced to the Commission, are in evidence. I respectfully agree with the Arbitrator’s observation that not all of Dr Prasad’s notes are legible. Fortunately, Dr Millons has attempted to decipher Dr Prasad’s script, and those matters are noted at [78] above. The Worker’s complaints on that occasion were restricted to the condition of his right knee. Dr Millons’s transcription revealed that Dr Prasad had observed that the right knee was swollen and that there was a suprapatellar effusion. Tenderness over the suprapatella was noted. As emphasised by the Appellant in submissions, those notes do not appear to corroborate the Worker’s allegation that he had suffered a cut.

The Worker next sought treatment on the night of 6 October 2003, when he attended the emergency department of the St George Hospital. His evidence was that he attended that department by reason of worsening low back pain. That complaint is confirmed by the contents of the clinical records produced by the hospital. The only notation concerning knee injury was to be found in the brief summary of history relating to the fall from the truck. Knee pain and worsening lumbar pain were noted. There was no notation as to whether it was the right or left knee that was painful; nor was there any evidence of examination or investigation of the knee. The Worker’s back was examined and x-rays were arranged. Those matters are confirmed in the short report prepared by Dr Tamara Pollock, Registrar at that hospital. The Appellant is correct to assert that nothing in the hospital records corroborates the Worker’s evidence that he suffered a cut.

The following day, 7 October 2003, the Worker consulted his general practitioner, Dr Tsamoglou. A report of Dr Tsamoglou dated 8 January 2009 is in evidence. A history of the fall was recorded by that practitioner, which was stated to have caused pain over the right knee joint and some lower back discomfort. The diagnosis was “lumbo-sacral spine derangement”. There is no indication in that report that Dr Tsamoglou examined the Worker’s right knee on that occasion. That is acknowledged by Dr Tsamoglou in a later report dated 30 July 2009 tendered by the Worker. A medical certificate issued on the day of that first consultation made mention only of lumbosacral spine derangement with pain maximally at L2/3 area. The Appellant, again, is correct to submit that nothing found in the evidence of Dr Tsamoglou tends to corroborate the allegation of a cut to the knee.

The earlier report of Dr Tsamoglou recorded that the Worker returned for further treatment on 13 October 2003, at which time he was complaining of severe back pain which was then radiating down to the front of both thighs. A CT scan investigation was arranged. A further attendance by the Worker on 16 October 2003 occurred, at which time he reported that his back pain had become worse. It was at this time that he was referred to Dr Diwan. By the time the Worker returned to see Dr Tsamoglou on 28 November 2003, he had been diagnosed as suffering osteomyelitis affecting the L3 vertebra. Dr Tsamoglou recorded that the organism was staphylococcus aureus, with secondary abscesses affecting the nearby psoas muscle.

The Worker has tendered the clinical notes which had been produced by Dr Diwan. Included amongst those documents is a letter dated 13 November 2003 addressed to Dr Tsamoglou. Dr Diwan noted a history of the fall off the truck and injury to the Worker’s right knee and that he “also hit his back”. Dr Diwan noted that initially it was the knee which caused him most problems, but, after a day or two, the knee became much better, while the back pain had continued to increase over the two-week period. There is no mention in that correspondence of any examination by Dr Diwan of the Worker’s right knee. The Appellant is again correct to submit that there is no evidence to be found in correspondence from Dr Diwan that would tend to corroborate the allegation of a cut to the knee.

Among the documents produced by Dr Diwan are a number of handwritten notes comprising a number of pages which appear to have been recorded at the Spine Service St George Hospital UNSW. The heading on the first of those pages includes the date 9 February 2004 and the words “SSR – physiotherapy clinical assessment”. On the second page of that assessment, under the heading “CHx”, which I take to denote “Clinical History”, there is a notation of “L3 osteomyelitis”. The handwritten notes are difficult to decipher. However, it is clear that bilateral psoas abscesses are noted and, significantly, it is recorded, “following [one word illegible] at work – cut (R) knee/[illegible]”. This entry has not been the subject of submissions by either party.

I have earlier made reference to the compensation claim form dated 31 October 2003 (at [82] above). Whilst that document made no reference to an injury to the knee, the Worker asserts that he did not complete those relevant portions of the form.

There are copies of photographs of the Worker’s right knee as noted in [86] above. Those photographs are not produced on photographic paper, and may be described as being of poor quality. As earlier noted the Arbitrator appeared, during exchanges with counsel, to acknowledge that a scar was demonstrated in those photographs. I have examined the three photographs and note that nothing of relevant significance can be perceived in two of those which have been tendered by the Worker. The third photograph does appear to depict a scar on the knee, said to be the right knee, at a point which appears to be in the upper region of the patella. These photographs have not been the subject of submissions by either party.

The matters which I have attempted to summarise immediately above appear, with the exception of the statements of the Worker and Mr Tzagaris and the copy photographs, to represent the extent of evidence which is reasonably contemporaneous with the occurrence of the undisputed fall. It is not disputed that such fall resulted in a knee injury. The Commission has the benefit of Dr Millons’s transcription of Dr Prasad’s handwritten clinical notes. I accept that the evidence of Dr Prasad establishes that the Worker, at the time of that consultation, suffered an effusion in the knee joint. Dr Prasad’s evidence, such as it was, does not corroborate the Worker’s suggestion that a wound was treated on that occasion and that his knee was bandaged.

I accept that the injury to the Worker’s knee was sufficiently severe to cause an effusion, and I note that the Worker had stated in evidence that he was wearing shorts at the time of the fall. The Worker had fallen a distance greater than 1½ metres, it seems onto his left foot and his knee, onto a concrete surface. I accept the Worker’s submission that the mechanics of such a fall would likely give rise to some degree of abrasion to the skin about the knee. It is significant in my view that Dr Prasad localised the knee injury as being suprapatellar effusion. The location of the apparent scarring which appears in the photograph is consistent with there being an impact causing a degree of laceration or abrasion at the upper part of the patella. I acknowledge, as pointed out by the Appellant’s counsel before the Arbitrator, that there is no proof as to the causation of what appears to be a scar at that point of the knee. However, I ascribe a degree of weight to the photographic evidence, having regard to the localisation of the Worker’s knee effusion as recorded by Dr Prasad.

Both St George Hospital and Dr Tsamoglou took a history of knee pain when the Worker first presented for treatment. Whilst it is troubling that neither that practitioner nor the hospital had recorded the presence of a laceration or abrasion to the knee, it is significant that neither Dr Tsamoglou nor the hospital had any record of an examination of the knee joint. The only investigation conducted at the hospital was an x-ray of the lumbar spine. In the case of Dr Tsamoglou, it appears that the Worker’s major complaint at the time of the first consultation related to his low back, which was treated with Voltaren, Tramal and Panadeine Forte. No investigation of the right knee was arranged. An x-ray and CT scan of the lumbosacral spine was arranged following a consultation on 13 October 2003.

I accept the Appellant’s submission that considerable care must be exercised in weighing the evidence of the Worker as found in his statements when the question of proof of a cut or abrasion to his knee is considered. I accept that the effluxion of time and the Worker’s knowledge as to the relevant issues in dispute concerning his compensation claim are each factors which must be taken into account when the weight of that evidence is assessed. I have earlier made observations as to the wordage of the first statement which gives rise to some doubt in my mind as to the reliability of the detail to be found in that evidence. The Appellant is also correct to highlight the apparent unreliability of the Worker’s recollection on numerous occasions during history-taking with various medical practitioners later in the history of the claim. The passage of time is also a matter to be taken into account when the evidence of Mr Tzagaris is considered.

The Appellant at [24] of submissions suggests that the first occasion on which the Worker gave a history of a cut “appears to have been provided to Dr Wilding on 2 June 2004”. That submission needs to be considered in the light of the entry made on 9 February 2004 during the course of the assessment noted at [121] above.

Having considered the evidence on this issue in its totality, I cannot accept the Appellant’s argument that, as stated at [15] of submissions, the question as to whether or not a cut was suffered in the fall rests entirely (subject to the evidence of Mr Tzagaris) upon the Worker’s own evidence that a break in the skin occurred. Whilst it is correct that the evidence of those four practitioners who first attended the Worker do not corroborate the existence then of a cut or laceration, it is to be noted that the only practitioner who had examined the injured knee was Dr Prasad. The unsatisfactory evidence of Dr Prasad represents a difficulty to be overcome by the Worker. On the day of that examination, the Worker’s primary problem, indeed the only problem apparently recorded, related to the condition of his knee. It is known from the notes of Dr Prasad that the Worker at that time suffered at least from a suprapatellar effusion.

The Worker next presented himself to the St George Hospital emergency department when his complaints concerned knee pain and back pain. The apparent focus of those attending the Worker appears to have been the back complaint. As the Arbitrator observed, there is no suggestion that the knee had been examined at the time of that attendance. Whilst that evidence does not advance the Worker’s argument concerning the existence of a cut, I do not infer that his assertion is negatived by the material which is to be found in the hospital records, including the discharge summary of Dr Tamara Pollack.

Dr Tsamoglou was the next practitioner to be consulted by the Worker. That practitioner confirmed in his letter to the Worker’s solicitors dated 30 July 2009 (which is attached to the Application to admit late documents dated 7 August 2009) that “on my notes dated 7 October 2003 there is no mention of me viewing his right knee area which was allegedly lacerated on 2 October 2003”.

The Worker’s evidence was that the cut or abrasion on his knee cleared up within a week or two weeks. That evidence appears in his first statement. The Appellant’s challenge to the Arbitrator’s finding at [31] of Reasons, that “the cut or abrasion healed within a few days and there were no obvious signs of infection” is well-founded. Notwithstanding that finding and the state of the evidence, I conclude that it was open to the Arbitrator to find that any cut or abrasion to the knee would have healed by the time Dr Diwan examined the Worker (at [34] of Reasons).

Whilst I am troubled by the absence of corroborative contemporaneous medical evidence concerning the occurrence of a cut or abrasion, I am satisfied on the balance of probabilities that the Worker received such an injury to his knee in the subject fall. I reach that conclusion having regard to the following matters:

(i)The Worker’s knee was undoubtedly injured in the fall involving at least a suprapatellar effusion, as noted by Dr Prasad.

(ii)On the occasion of the fall the Worker was wearing shorts and fell a distance of approximately 1½ metres onto a concrete surface. I conclude that it is probable that such a fall in those circumstances would result in at least a minor abrasion to the skin on the knee joint at the point of impact.

(iii)The absence of notation of such a cut or abrasion in the hospital notes, Dr Tsamoglou’s notes, and Dr Diwan’s notes must be considered in the light of the knowledge that there is no record of examination of the knee joint.

(iv)The Worker has, as found by the Arbitrator, consistently stated that he suffered a cut to his knee. Whilst the evidence of the Worker and that of Mr Tzagaris as found in the statements require cautious evaluation, particularly concerning the descriptive detail, I accept their evidence as to the existence of a cut or abrasion visible at the knee joint on the night of the subject fall. The history of right knee cut had been recorded at the St George Hospital UNSW on 9 February 2004.

(v)The copy photograph to which I have referred at [123] above has some evidentiary weight, in that the site of the perceptible scar appears to correlate to the site of the effusion injury which was noted by Dr Prasad in his clinical notes.

For the reasons which I have attempted to summarise above, I conclude that the Arbitrator was correct when he found at [31] that “there was some form of cut or abrasion to the knee immediately following the fall”. Having so found, it is necessary to examine the evidence to determine whether the fall was causally related to the development of the infection which was diagnosed following admission to St George Hospital.

Causal nexus between injury caused by the fall and spinal infection

It is the Worker’s case that the cut or abrasion to his knee was the portal through which infection was transmitted, ultimately causing the spinal condition as diagnosed. Reliance is placed by the Worker upon the evidence of Dr Bodel, Dr Thomson, Professor Iredell and others in support of that contention. The evidence of Professor Iredell as expressed in his report of 26 May 2008 is perhaps the clearest statement appearing in the evidence concerning the suggested process of spinal infection:

“The story is a simple one. Mr Kagiorgis has a background of manual work, but not of back problems prior to his injury at work on the 3^rd October 2003, at which he allegedly sustained soft tissue injury to his back and right knee. The history I obtained concurs with that described in the other records provided, but he really cannot remember much about his knee wound. He is quite clear that there was a relatively sudden increase in his back pain at around two weeks post-injury. This is consistent with the clinical and radiological findings soon after injury (non-infective) and then at the time of hospitalization (with obvious infection).
A relatively common scenario is that of an infective agent (typically Staphylococcus aureus, as here) which seeds an injured site and develops into discitis and osteomyelitis with secondary spread to blood, psoas etc over several days to a few weeks. I think this is what has happened. The most likely entry site is the right knee wound, even in the absence of prominent suppuration. I think the most important point is that on the balance of probabilities and assuming that the information provided to me is both complete and accurate, Mr Kagiorgis would be very unlikely to have developed the infective lesion in his back in the absence of an injury such as that described to have taken place on Thursday 3^rd October 2003.”

There is evidence that the infective agent, staphylococcus aureus, is commonly present on the skin. Notwithstanding Dr Millons’s suggestion of a tenuous connection between the fall and the vertebral osteomyelitis his evidence includes the statement that:

“the skin was broken when he landed on the knee and some of the skin bacteria may have entered the wound. There was certainly no frank wound infection.”

I conclude from the evidence of Dr Millons, in particular that as stated in his report of 6 February 2006, that he was of the view that transmission of the infective agent as postulated by the Worker’s medical witnesses is possible.

A second possibility concerning the method of transmission of the infection through the wound is suggested in the evidence of Dr Bodel. Dr Bodel’s evidence concerning entry of the infection is noted at [59] above. Concerning the source of the infective agent, Dr Bodel stated in his report of 15 January 2008:

“It is likely that this gentleman has developed his discitis as a result of haematogenous spread of infection from even a minor graze on either his right or his left leg as the timing of the onset of the severity of his symptoms and the fever would fit with a bacterial spread from such an injury. It must be remembered that the injury occurred at a council tip.”

It seems from that statement of Dr Bodel that the likely state of hygiene at the rubbish tip is a factor to be taken into consideration when considering the possibilities concerning the origins of the infective agent.

The Worker also relies upon the evidence of Dr Neal Thomson. That evidence appears in three written reports dated 1 February 2005, 11 February 2005 and 31 May 2005. At page 7 of the first of those reports, Dr Thomson expressed the view:

“It would appear that the cause of the infection in the lumbar spine was due to a laceration to the right knee with subsequent infection. I believe I need to review the hospital notes from St George Hospital.”

Dr Thomson, in his report of 31 May 2005, noted that he had reviewed a number of medical records, including three reports from Dr Diwan. In response to a question put to him by the Appellant’s insurer, “Do you still consider the right knee laceration to have been the cause for the infection?”, Dr Thomson replied:

“I consider that there is a distinct possibility that there has been an infection initiated by the laceration to the right knee. I do not consider that the laceration can be excluded as the initiating cause of the introduction of infection to the bloodstream and subsequent infection in the lumbar spine.”

Dr Tsamoglou, in his report of 30 July 2009, confirmed that it is a fact that “a lot of people are carriers of the Staphylococcus bacteria together with other bacteria as commensals which do not cause any harm unless there is a breakdown in the skin integrity”. Dr Tsamoglou proceeded to refer to the report of Professor Iredell, which apparently had been forwarded for his consideration, and made the following comment:

“…all I can add is that the most likely port of entry of the Staphylococcus bacterium into his bloodstream and the subsequent osteomyelitis in the L3 vertebral body with associated discitis in the L2/3 disc, would be through the laceration/grazing of his right knee.”

The Appellant’s case concerning the issue of the means of infection is founded upon the evidence of Dr Wilding, Dr Matheson and Dr Millons. I have attempted to summarise that evidence between [61] and [81] above.

The Appellant’s primary submission challenging the Arbitrator’s finding that the osteomyelitis and discitis in the Worker’s back were caused by the incident on 2 October 2003 is founded upon an assertion that he has failed to provide, as he is obliged, reasons for preferring the Worker’s medical experts to those whose evidence was tendered on behalf of the Appellant. Reference is made to the decision in Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127.

The Arbitrator between [26] and [30] of Reasons had succinctly summarised the evidence of Drs Wilding, Matheson and Millons. The Arbitrator proceeded to note that all the medical experts agree that osteomyelitis is a blood-borne infection involving bacteria that is normally present on the skin. The Arbitrator further observed that “the normal process is for the bacteria to enter the blood stream through some break in the skin”. Those matters stated by the Arbitrator are, in my view, in accordance with the evidence and, I note, are not the subject of complaint by the Appellant.

Having summarised the medical evidence and noted the common ground amongst the experts, the Arbitrator proceeded to enumerate the four possible causes for the infection which are noted at [98] above.

At [35] and [36] of Reasons, the Arbitrator reiterated his conclusion that the Worker suffered a cut or abrasion and that he had been struck by a bag whilst on the ground, thereby likely suffering a haematoma to the lower back. He stated that there was no evidence to support the other possible causes as postulated, and proceeds to state his satisfaction, on the balance of probabilities, that the osteomyelitis and discitis were caused by the incident on 2 October 2003.

At [31] of submissions, the Appellant complains that the Arbitrator failed to give any reasons as to why the opinions of Drs Wilding, Matheson and Millons concerning the “timeframe between the initial infection on 2 October 2003 and the development of discitis shortly thereafter was too short”. It is important to note that Dr Wilding did not express any view in relation to the relevant timeframe in his reports which are before the Commission. Dr Matheson stated plainly that the time gap was too short to have produced a discitis. The reason was given that discitis progresses over a long period of time. That comment of Dr Matheson’s was acknowledged by Dr Millons as having “some significance”. Dr Millons, at page 5 of his report of 6 February 2006, stated that “the timeframe between the fall and the onset of severe back pain of a few days seems somewhat short for the development of the severe infection that was subsequently found”. The view of Dr Matheson concerning the “time gap” is to be found at page 3 of his report of 5 November 2004. It is to be noted that Dr Matheson made the observation that “if he had an infected wound that caused [this infection] then the likelihood is that there would have been days or sometimes weeks before the presentation”.

Whilst the Arbitrator has acknowledged the evidence relating to the “time gap”, I accept the Appellant’s submission that there have been no sufficient reasons given for the rejection of the views as expressed by the experts called in its case. In the circumstances, it is proposed to review the medical evidence.

The blood tests which established the existence of the infection of the Worker’s spine were collected on 17 October 2003, and the results communicated to Dr Diwan late on that day. That amounts to a period of two weeks after the subject fall. It is the case that the Worker had complained of significant back pain within a very short time following the fall. Such complaints were made to the St George Hospital on his first attendance, and the next day to Dr Tsamoglou. Those complaints may be explained, on one view of the evidence, by having regard to the fact that the Worker had been struck by the bag whilst prone on the ground following the fall. The significantly disabling symptoms with which the Worker presented to Dr Diwan on 17 October 2003 prompted that practitioner to have the blood tests carried out. It appears that it is the existence of the discitis that caused Dr Matheson to state that the time gap was too short for the production of such condition. It appears from Dr Diwan’s report of 15 December 2003 addressed to the Appellant’s insurer that the MRI scan conducted at St George Hospital on 19 October also revealed an infection. That infection was again confirmed following a biopsy taken from the L3 vertebra, which led to the diagnosis of discitis, along with vertebral osteomyelitis. In that same report, Dr Diwan expressed the view that from “the manner in which Mr Kagiorgis has described his symptoms it is reasonable to assume that his symptoms are related to his work”. I conclude from that statement by Dr Diwan that he was not troubled by the “timeframe”, albeit that he had postulated that there was secondary infection of a small haematoma sustained in the fall.

As earlier noted at [65] above, Dr Wilding had stated in evidence that he did not consider there was a causal relation between the fall at work and the development of spinal infection. He further stated that those occurrences were coincidental; however, he stated he could not be dogmatic. Notwithstanding those views as expressed, Dr Wilding observed in the last line of his report “I do consider that there is a likelihood that the abrasion may have been the source of bacteraemia, but I cannot be more definite than that”. I conclude that Dr Wilding accepted as a possibility that there may be a relationship between the fall and the infection.

It may be seen from the earlier summary of Dr Matheson’s evidence that it was his opinion that the infection was spontaneous and in no way related to the fall which, as recorded by him, had caused “a graze”. Dr Matheson’s reasons for rejecting a suggestion of a causal relationship between the fall and infection are summarised at [67] above. One of those reasons was stated to be that the graze healed without any problems. The evidence concerning the state of the cut or abrasion between the time of the fall and its healing is unsatisfactory. The evidence that it was red may suggest that there was a degree of infection present at some stage. I again note the evidence of Professor Iredell, a qualified expert in the subject of infectious diseases, which stated that “the most likely entry site is the right knee wound, even in the absence of prominent suppuration”.

Another reason given by Dr Matheson as summarised was that the time gap was too short for the development of discitis. I note that Professor Iredell had the benefit of a consultation with the Worker and was provided relevant documentation before preparation of his report of 26 May 2008. Nowhere in that report does Professor Iredell raise any question concerning the relevance of the time gap between the fall and diagnosis of the infection. I imply that the Professor, as an expert in the field, was not troubled by the chronology which was undoubtedly revealed during the course of the consultation and by reference to those documents.

The evidence of Dr Millons includes his statement that he agreed with Dr Wilding’s opinion that the infection suffered by the Worker “may have been a pimple on the skin or a dental infection” as the cause of the bacteraemia. Whilst there is evidence that the Worker had been treated by Dr Tsamoglou for a boil/infected sebaceous cyst in March 2002, that treatment, being administration of antibiotics, cleared the infected boil, and Dr Tsamoglou stated in his report of 30 July 2009 that there were no similar conditions presented and treated thereafter up until October 2003. There was otherwise no evidence of the Worker suffering from skin pimple or other relevant skin eruption. Nor was there any evidence that, at the relevant time, the Worker suffered from a dental infection.

I accept the Appellant’s argument that the suggestion of the relevance of a pimple or dental infection was made by those medical witnesses by way of illustration of “many and relatively innocuous ways which the bacteria producing the infection could enter the bloodstream”(at [32]). I therefore accept that the manner in which the Appellant conducted its defence of the claim before the Arbitrator did not involve an assertion that the infection was the result of some specific, more likely factor. Had the Appellant sought to advance such an argument, there would, in my view, have been an evidential burden upon the Appellant to adduce evidence of alternative explanations for the infection. As I understand the manner in which the Appellant had presented its case, the examples given by the doctors demonstrate the breadth of possibilities as to cause of infection, and the Appellant says that such spectrum needs to be taken into account when a determination is made as to whether the Worker has discharged the onus concerning proof that there was a nexus between the abrasion and the infection. In my view this is not a case where the decisions of Purkess and Watts have relevance.

Much of the material to be found in the careful and well-reasoned reports of Dr Millons concerns the controversial issue as to whether there had been a cut or abrasion to the Worker’s knee. The question concerning the source of the infection was stated by Dr Millons as having not been “clearly identified”. Dr Millons appears to accept, at page 5 of his report of 6 February 2006, that accepting that the skin was broken when the Worker landed on his knee, some of the skin bacteria may have entered the wound. Dr Millons immediately stated, “There was certainly no frank wound infection”.

The Worker, when presenting his case before the Arbitrator, appeared to rely upon the opinion of Dr Diwan as a basis to support a conclusion, in the alternative to the cut or abrasion nexus, that the fall or the impact of the bag caused a small haematoma in the lumbar area, which may have become secondarily infected. The Appellant had relied upon the observation in Dr Diwan’s evidence, “from where did the infection arise, is not clear as he did not have any other focus of infection”.

Having regard to the state of the evidence, I conclude that the suggested method of infection espoused by Dr Diwan is unlikely. With respect to this matter, I note that the late evidence of Dr Tsamoglou concerning the boil that was treated in 2002 included a notation that the common bacterium that infects a boil is staphylococcus. There is no evidence before the Commission that would suggest that a haematoma, the existence of which is suggested by Dr Diwan, may be vulnerable to infection from residual infection within the Worker’s body following successful treatment of the boil.

In October 2006, Dr Christopher Browne, specialist physician, was qualified by the Worker’s solicitors to provide an opinion concerning causation of the infection. Dr Browne noted that the Worker sustained soft tissue injuries to his right knee and trauma to his low back in the fall. Dr Browne proceeded to state that the timing of the onset of his severe progressive back pain following the accident was consistent with the development of a serious spinal infection, which was proven to be due to osteomyelitis of the third lumbar vertebra and associated L2/3 discitis. Dr Browne stated that the likely source of the infection was the graze to his right knee, and he noted that the Worker was “at a garbage tip at the time of the incident”.

Dr Browne accepted Dr Matheson’s statement that discitis is not a work-related condition and is a spontaneous infection as being “generally correct”. However in the present case, Dr Browne was of the opinion that “the spinal infection and need for subsequent surgery is highly likely to have resulted from the spread of infection from a soft tissue injury”.

It is my view that the weight of the expert medical evidence is such that it is more probable than not that the infective process which developed in the Worker’s spine was causally related to the cut or abrasion which I have found had occurred to the Worker’s knee in the subject fall. The infection likely came from the Worker’s skin; however, a number of the medical witnesses have observed that the fact that the fall occurred at the rubbish tip is a factor to be taken into account when considering the likely source of such infection. Dr Wilding does not, as Dr Matheson does, dogmatically exclude the likelihood that the abrasion may have been the source of the relevant bacteraemia. I reject Dr Matheson’s views concerning the time gap between the fall and diagnosis. With respect to that matter, I prefer the evidence of Professor Iredell. I reject the evidence of Dr Matheson that the infection was “spontaneous” and prefer the evidence of Dr Bodel, Dr Thomson, Dr Browne and, in particular, Professor Iredell. Dr Matheson’s assertion that the infection was spontaneous leaves open the question as to the source of the infection. The likely source of that infection has been addressed by those medical witnesses whose evidence I prefer. Those expressions of opinion are founded upon the assumption that there had been a cut or abrasion, a fact which I have found. I have earlier rejected that evidence of Dr Matheson where reasons are stated for his rejection of there being a causal nexus between the graze, which he recorded as part of the history, and the onset of the infection. The temporal relationship between the fall and the diagnosis of infection is a factor which I have taken into account in determining the probabilities and, in that regard, I reiterate my rejection of Dr Matheson’s views concerning the time gap. In reaching my conclusion, I have placed considerable reliance upon the evidence of Professor Iredell. As that witness has stated, the story is “a simple one”. Professor Iredell was equipped with the relevant history and clinical detail, and has reached the conclusion that there is a causal nexus between the injured knee and the infection without the expression of any doubt or qualification. It is that evidence, as reinforced by the other medical witnesses, which leads me to conclude that the Arbitrator’s ultimate determination should be confirmed.

For the reasons which I have attempted to outline above, I find that the Worker, as a result of the fall on 2 October 2003, received injury being osteomyelitis and discitis in his lower back and that employment was a substantial contributing factor to such injury. The Arbitrator’s determination made on 24 December 2009 is to be confirmed.

DECISION

The appeal is dismissed. For the reasons stated herein the decision of the Arbitrator dated 24 December 2009 is confirmed.

COSTS

The Appellant is to pay the Respondent Worker’s costs of the appeal.

Kevin O’Grady

Deputy President
29 April 2010

I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE