Trustees of the Order of Sisters of St Paul de Chartres v Kearney - [2009] NSWWCCPD 131

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Trustees of the Order of Sisters of St Paul de Chartres v Kearney [2009] NSWWCCPD 131
APPELLANT:			Trustees of the Order of Sisters of St Paul de Chartres
RESPONDENT:			Elizabeth Kearney
INSURER:			Catholic Church Insurances Ltd
FILE NUMBER:			A1-9858/08
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:			4 May 2009
DATE OF APPEAL HEARING:		14 October 2009
DATE OF APPEAL DECISION:			20 October 2009
SUBJECT MATTER OF DECISION:			Injury; nature of a review; application to further cross-examine worker on review; application of Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr D Saul, instructed by Astridge & Murray
Respondent:	Mr J Harris, instructed by Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 4 May 2009 is revoked and the following orders made: “1. Award for the respondent employer. 2. No order as to costs.”
Each party is to pay her or its costs of the appeal.

BACKGROUND

The appellant employer owns and runs St Paul’s International College (‘the College’), a senior secondary school at Moss Vale with both day and boarding students. The College caters to local and overseas students. The worker, Ms Kearney (formerly Savage), started work at the College in August 2005 as an assistant to the boarding master and boarding supervisor.

In the course of her duties on 31 January 2007, Ms Kearney drove to Sydney International Airport in a Tarago van to pick up three students. She alleges that she injured her back as a result of lifting a student’s bag at the airport, reaching to fold the rear seat of the Tarago flat, and/or reaching up to close the van’s rear door.

By an Application to Resolve a Dispute (‘the Application’), registered in the Commission on 9 December 2008 and amended at the arbitration hearing, Ms Kearney claims weekly compensation from 31 January 2007 to 1 August 2008 together with lump sum compensation in respect of a whole person impairment of 15 per cent as a result of the condition of her lumbar spine consequent upon her injury on 31 January 2007.

The College disputes liability on the grounds that Ms Kearney did not injure her back on 31 January 2007 or, if she did injure her back on that day, her employment was not a substantial contributing factor to any such injury.

A Commission Arbitrator heard the matter on 22 April 2009 and 1 May 2009. In the course of the arbitration, Ms Kearney was extensively cross-examined by the College’s counsel, Mr Saul, who submitted at the outset that the case was “essentially” one of credit (T7.32). In an ex tempore decision delivered at the conclusion of submissions on 1 May 2009, the Arbitrator accepted that Ms Kearney injured her back in the circumstances she alleged and made an award in her favour. Consequent upon those findings, the Commission issued a Certificate of Determination on 4 May 2009 in the following terms:

“The determination of the Commission in this matter is as follows:
1. That the Respondent make weekly payments of compensation to the Applicant under s36 of the Workers Compensation Act 1987 at the rate of $573.56 a week for the period 31 January 2007 to 1 August 2008.
2. That the matter be remitted to the Registrar to refer to an AMS to assess the following medical disputes:

a.the degree of permanent impairment resulting from the injury on 31 January 2007 to the Applicant’s lumbar spine;
b.whether any proportion of permanent impairment is due to any previous or pre-existing condition or abnormality, and the extent of that proportion.”

In an appeal filed on 27 May 2009, the College seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

There is no dispute that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

NATURE OF THE REVIEW

The College submits that the appeal should, in the special circumstances of this case, be conducted as a hearing de novo in accordance with the principles enunciated by Basten JA in Tan v National Australia Bank Ltd [2008] NSWCA 198 (‘Tan’) and by Allsop P and Hoeben J in Sapina v Coles Myer Limited [2009] NSWCA 31 (‘Sapina’). Reliance is placed on the following statement by Basten JA in Tan (at [12]):

“The fact that the term ‘appeal’ may refer to a hearing de novo, the fact that the appeal is described as one ‘by way of review’, together with the largely unlimited discretion conferred on the Deputy President as to the manner in which the appeal will be conducted and the broad powers, including the power to make a ‘new decision’ in place of that subject to appeal, all tend to confirm that the Deputy President may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the arbitrator was affected by identifiable error. There is no need to consider the constraints on the Deputy President which may arise from the circumstances that the arbitrator made findings based on credit in respect of oral testimony, where witnesses were not recalled on appeal.” (emphasis added)

The College argues that the Arbitrator in the present matter failed to properly assess Ms Kearney’s credit and demeanour, which was central to the determination of whether an injury had been received on 31 January 2007. Therefore, the College seeks leave to recall Ms Kearney “to give evidence by way of cross-examination before the Presidential Member hearing this appeal” so that the Presidential Member can be in the best position to properly “ascertain” her credit and demeanour in circumstances where the College submitted to the Arbitrator that Ms Kearney was not forthright and had “obfuscated” in giving her oral evidence. The College does not wish to be in a position where a Presidential member finds himself or herself to be in an inferior position to the Arbitrator in the determination of a critical issue in the case, namely Ms Kearney’s credit. The College also refers to section 354(2) of the 1998 Act which provides that the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

Whilst Ms Kearney’s solicitor agrees that the appeal should be conducted by way of an oral hearing because of the “legal complexity involved”, he opposes the application that his client be further cross-examined on appeal and notes that she currently lives in Perth and that her attendance would be onerous. It is submitted that Ms Kearney was subjected to a full and complete cross-examination at the arbitration.

The above authorities make it clear that a Presidential member has a discretion as to the manner in which a section 352 appeal will be conducted and that he or she “may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the Arbitrator was affected by identifiable error” (emphasis added). In Tan, Basten JA also noted (at [11]):

“But even in a hearing de novo the appellate tribunal will not necessarily disregard conclusions reached by the original decision-maker. Constraints may arise at various stages. First, in deciding the primary facts, the appellate tribunal may defer to findings made by a decision-maker who has resolved conflicts in the course of hearing and assessing oral testimony. In such a case, the appellate tribunal which does not hear the witnesses, will be constrained to approach the findings in a manner similar to that described in Fox v Percy [2003] HCA 22; 214 CLR 118. Secondly, the appellate tribunal may be constrained in drawing inferences, not having seen the witnesses, but to a lesser extent, for reasons analogous to those identified in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551, despite there being no need to find error. Thirdly, a similar constraint may arise in relation to the exercise of a discretionary power, again recognising that the appellate tribunal may not be required to find error: cf House v The King [1936] HCA 40; 55 CLR 499 at 505.” (emphasis added)

Allsop P and Hoeben J (Beazley JA agreeing) observed in Sapina (at [57] and [58]):

“The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, ‘to decide whether the original decision is wrong [that is to] decide what is the true and correct view.’ This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”

It is clear from the above authorities that the method to be adopted in conducting a review under section 352 is within the discretion of the Presidential member hearing the review and that a hearing de novo is not required in each case.

Though the appeal was conducted as an oral hearing, I was not persuaded that the review should be conducted as a hearing de novo with Ms Kearney being cross-examined again. Both parties were represented at the arbitration and the issues in dispute were fully and competently argued. There is no suggestion of any procedural irregularity or unfairness in the way the Arbitrator conducted the arbitration hearing such that the review should be conducted by way of a hearing de novo. Nor is it suggested that such a hearing was required to ensure that the Commission acts “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).

The Arbitrator delivered a detailed decision in which he considered all of the issues argued on behalf of the College. Though he commented on Ms Kearney’s demeanour, he acknowledged the “inherent danger” in placing too much weight on the way a witness presents. He prefaced his comments about Ms Kearney’s demeanour with the words “For what it’s worth” his impression was that she was “timid and somewhat befuddled or confused by the questions” (T89.15). The fact that the case involves an assessment of Ms Kearney’s credit is not a sufficient reason for conducting a hearing de novo. Many cases determined in the Commission involve issues of credit.

I do not believe it is necessary or appropriate for Ms Kearney to be cross-examined again. First, I agree with the Arbitrator that there is an inherent danger in placing too much weight on demeanour. That view is consistent with the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where their Honours noted (at [30]) that judges have “cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” Second, the Arbitrator did not base his decision on Ms Kearney’s demeanour, but merely declined to draw the adverse conclusions urged by Mr Saul. Third, cross-examination is not allowed as of right in the Commission. Whether cross-examination is allowed and, if it is, the extent of any cross-examination is a matter for the discretion for the Arbitrator at first instance or the Presidential member hearing the review (Aluminium Louvres & Ceilings Pty Ltd v Zue Qin Zheng [2006] NSWCA 34; (2007) 4 DDCR 358). Fourth, there is no suggestion that the cross-examination before the Arbitrator was unfairly or unreasonably curtailed or that counsel was deprived of the opportunity of putting relevant matters. If anything, the cross-examination was too long. Last, given that Ms Kearney was extensively cross-examined at the arbitration and is well aware of the questions and issues likely to be explored, I see nothing of value to be gained by allowing further cross-examination if the sole purpose of that cross-examination is so that her demeanour can be assessed a second time.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

By seeking leave to again cross-examine Ms Kearney, the College is seeking to adduce additional evidence on appeal. For the reasons set out above at [11] to [19] I do not accept that it is in the interests of justice that Ms Kearney be subjected to further cross-examination on appeal.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether Ms Kearney injured her back at Sydney International Airport on 31 January 2007 and, if so, whether her employment was a substantial contributing factor to her injury.

THE EVIDENCE

Ms Kearney’s lay evidence

Ms Kearney’s evidence is set out in two statements and in her oral evidence before the Arbitrator. Using her former name of Savage, Ms Kearney gave her first statement to the College’s investigator on 6 March 2007. She said that she generally enjoyed good health and had never had any previous injuries to her back.

On 31 January 2007, she drove the College’s Tarago van from Moss Vale to Sydney International Airport to pick up three students arriving from China, one girl and two boys. She said that whilst walking from the airport terminal to the car park, the female student’s suitcase fell from a trolley onto the road. Ms Kearney picked it up and returned it to the trolley and they continued to the van with Ms Kearney carrying the student’s small overnight bag and a computer bag with books in it.

Ms Kearney added:

“The four of us reached the van without any more problems. I opened the van. We had to pull the back seat flat and I was trying to reach the handle and I had to get in and pull up the lever, it wasn’t working. I said that we will try and make room for the luggage. Basically I stood outside the van whilst the students waited and I reached over and picked up the female students [sic] luggage off her trolley. Whilst it was in my hand I picked it up, lifting and turning to the left in one motion and placed it into the boot. The boys assisted with their own luggage and I maintained that the boys assisted and the boys lifted in some and I told the female student to get into the front seat and the boys would have to get into the back once all the luggage was placed into the vehicle. I reached up and closed the boot and I felt that I had lower back pain.
I commenced to drive from the airport back to St Paul’s College. From when I first started to drive the bus my back was hurting and during the trip I had to place a jumper at my back during the trip to get a good position and there was a fair bit of vibration in the van. We arrived back about 11.45am.” (emphasis added)

On arriving at the College she told one of the cleaners, “a Maori”, that her back was very sore. The cleaner allegedly said that she should mention it to somebody, but Ms Kearney said, “Don’t worry, it should get better, I don’t want to make a big deal.” The cleaner said “Are you sure luv?” and Ms Kearney replied that she just wanted to get the students up to the office so they could see the Sister.

Ms Kearney then drove the Tarago to St Mary’s Boarding House, about 100 metres away, and, in a fair bit of discomfort, dragged the female student’s suitcase out of the Tarago and said to her that she would have to help her with it. Ms Kearney helped the student get her big bag up two steps and then returned to the vehicle to retrieve her two smaller bags.

Ms Kearney escorted the students to the office and then made a note in the daily “report book” but made no mention in that book about having hurt her back because she thought the pain would go if she took some painkillers, and she needed the job. She was aware that she was rostered off work over the next few days and she thought she would get better. She did not report her pain to anyone in authority at the College.

She returned home that afternoon and applied a heat bag to the affected area, took naprosyn, and retired to bed. Over the next few days she rested at her home, took naprosyn, and applied heat bags to her back. The pain was on both sides of her lower back and radiated into her buttocks and both legs. Her mobility was restricted and she could not walk. The pain was like an electric shock.

Ms Kearney was rostered to return to work at 4.30 pm on Sunday 4 February 2007. She telephoned that afternoon and spoke with Jo-Anne Stewart, the boarding house supervisor, and told her that she was in too much pain with her back and couldn’t walk. Ms Stewart phoned back a short time later saying that Sister Angelina did not want her to return to work unless her back was better and she had a doctor’s certificate.

She attended Dr Yagoub, her local general practitioner, on Monday 5 February 2007 and was referred for a CT scan on 6 February 2007. Ms Kearney states that she explained to Dr Yagoub what happened and what she was doing at the time and the doctor provided her with a WorkCover certificate dated 7 February 2007 declaring her unfit for work from 5 to 19 February 2007. Ms Kearney then referred to having appointments to see a Dr Mulroney (presumably Dr Moloney) on 13 March 2007 and Dr Matheson on 14 March 2007. She added that she had not received any other treatment from any medical practitioners and that she had not received any chiropractic or physiotherapy treatment.

The investigator specifically asked Ms Kearney if she jarred her back whilst surfing during the Christmas holiday period and she said “No. Absolutely not.” She denied having told Ms Panickar, the boarding house co-ordinator, on the afternoon of 28 January 2007 that she had jarred her back whilst surfing over the Christmas holidays. She also denied having been told that it was the College’s policy that students had to take care of their own luggage.

Ms Kearney’s second statement is a statutory declaration dated 24 September 2008. She declared that she has had some back pain since she gave birth to her 20 year old triplets. She did not recall seeing a doctor about her back prior to January 2007 but did see a chiropractor, Mr Gilsenan, on several occasions in August 2006 and on 1 September 2006 when she had back pain, and pain and cramping in her legs. She had not sustained any particular injury that prompted her to see Mr Gilsenan in 2006 and she denies seeing the chiropractor because of a fall on stairs at work.

After receiving treatment from Mr Gilsenan, Ms Kearney felt well and received “the all clear” and did not need to see him again. She had no more back pain and the symptoms in her legs resolved completely. She performed her normal work until 31 January 2007.

In respect of the events on 31 January 2007, Ms Kearney states that she felt pain in her back when she lifted the student’s bag off the road and replaced it on a trolley. She felt an increase in back pain when she got into the Tarago to lift a lever to fold the back seat flat to make more room for the luggage. She then lifted some of the luggage into the back of the van. As she reached up to close the rear door the lower back pain “became very severe.”

Ms Kearney drove back to the College and felt her back pain worsening because of the vibration caused over the journey.

Upon her return to the College Ms Kearney told a cleaner, identified as “Moira” in the second statement, that she was feeling unwell because her back was very sore. Two of the three students removed their own luggage, but Ms Kearney “dragged” the female student’s suitcase out of the van and told her that, because she was having trouble with her back, she [the student] would need to help her.

As she said in her first statement, she made no mention to her employer about her back pain because she believed that with rest and painkillers her pain would go away. She was also worried that if she reported the injury, her job would be in jeopardy.

Ms Juliana Murdoch, the College’s Bursar, completed a “Notice of Injury Form” on 8 February 2007 in which she described how the injury happened in the following terms:

“strained back whilst driving and also lifting luggage”

Ms Kearney completed a claim form on 7 March 2007 in which she described her accident as having occurred as follows:

“Picked up student’s luggage as lifted, turned to place in van”

In the claim form, Ms Kearney described her injury as “2 bulging discs in lower back” and indicated the “part” (her back) was normal before the accident and that she had not previously suffered a similar injury or condition.

Ms Kearney agreed in her statutory declaration that, though she could not precisely recall the question she was asked, she told the investigator who took her first statement she had never previously injured her back. She also told the investigator that she had not received chiropractic or physiotherapy treatment, as she understood that she was being asked whether she had received such treatment after the injury on 31 January 2007.

Ms Kearney denies that she injured her back whilst surfing during the Christmas break and maintains that her back was “fine” and that she was well up to the time of her injury on 31 January 2007.

She underwent spinal surgery on 7 May 2007 at the hands of Dr Woodland, orthopaedic surgeon in Perth, Western Australia.

The key parts of Ms Kearney’s oral evidence are:

(a)     she said that the description of “strained back whilst driving and also lifting luggage” in the Notice of Injury Form was “not really” an accurate description of what happened (T10.20);
(b)     she agreed that the description of the incident in her claim form, namely that she “picked up students luggage as lifted, turned to place in van” was an accurate description of how the injury occurred on 31 January 2007 (T10.46-53);
(c)     she agreed that she had back problems before the accident on 31 January 2007 (T11.38-50);
(d)     she answered the questions on the claim form to the best of her knowledge (T12.1);
(e)     she agreed that she had a “condition” in her lower back before 31 January 2007 (T12.50) but denied that she had “told untruths” in her claim form (T13.27);
(f)   she said there was a difference in her condition after the injury at the airport because she couldn’t walk (T13.55) but she agreed that she should have answered “yes” to the questions on the claim form about whether her back was normal before the accident and whether she had any previous similar injury or condition (T14.3-10);
(g)     she could not remember if she specifically denied any previous back pain when she saw Dr Matheson (T14.19 ) but later agreed that denying any previous back pain to Dr Matheson was untrue (T15.13);
(h)     she said that she did not see Mr Gilsenan immediately following the incident on 31 January 2007 (T15.22) and that, if she told anybody that she had received chiropractic treatment on 4 February 2007, that would be untrue (T16.8-11);
(i)   she did not remember seeing Ms Panickar on 31 January 2007 (T18.8) and she agreed that she did not tell Ms Panickar of her low back injury at that stage (T19.15);
(j)   she could not recall what caused the back pain she experienced when she sought chiropractic treatment in mid 2006 (T19.55-20.22);
(k)     she agreed that towards the end of 2006 she was having conflicts with her employer (T21.7) and that she was under a lot of stress (T21.26);

(l)   she denied telling Ms Murdoch that her injury was due to vibrations in the Tarago (T21.45) and that she made no mention of pulling and lifting luggage (T21.57-22.1);
(m)   she denied saying at a meeting on 28 January 2007 that she had jarred her back whilst surfing (T22.36-43);
(n)     she denied having had a fall at home in July 2006 (T22.45) and denied that she saw a chiropractor in respect of having carried some plates down steps and falling (T23.29-34);
(o)     she denied that the minutes referring to her having jarred her back whilst surfing were accurate (T24.36-41);
(p)     she agreed that the statement in her email of 6 February 2007 that she had had extensive chiropractic treatment on the Saturday was a lie (T26.24) but added that she was going to lose her job (T26.37);
(q)     she disagreed that she did not injure her back on 31 January 2007 (T27.21) and that she deliberately told untruths in order to give the impression that the problems with her back all occurred on that day (T27.26) and that she deliberately set out to give doctors and her employer the impression that she had no back problems prior to 31 January 2007 (T27.33);
(r)   she agreed that she made no mention in a “report book” at the College of having injured her back on 31 January 2007 (T27.52-56);
(s)   when it was suggested that she was “very cagey” in her answer about surfing, she said that she was nervous (T29.25) and that she was struggling with the way Mr Saul was asking the questions (T29.35);
(t)   she did not think it was important to reveal to any doctor the problems with her back before 31 January 2007 (T32.11);
(u)     in response to the assertion that she was prepared to lie in respect of what happened around 31 January 2007, she said she was desperate to keep her job (T38.32 – 38) and that she had lied to “protect [her] position” (T38.40-48) but she denied having lied in respect of her workers compensation claim (T38.56-39.2);
(v)     she said that she told Dr Yagoub what happened on 31 January 2007 when she first saw her on 5 February 2007 (T39.37-47);
(w)   Ms Panickar was responsible for or involved in the disciplinary processes initiated by the College (T49.40);
(x)     she had never previously made a workers compensation claim (T49.46);
(y)     she did not feel secure (with her employment) because of the way she was treated by Ms Panickar (T50.2), and
(z)     the record book the College kept was just a diary (T50.24) and she had never seen employees report an injury in it (T50.26) and she was not aware of the existence of another book in which injuries were reported (T50.30-34).

Ms Kearney relies on an undated statutory declaration from a Mr McInnes. The nature of Ms Kearney’s relationship with Mr McInnes is not known, but he declared that as at January 2007 he had known her for 12 months. He added that he participated in a surfing lesson with her on 8 January 2007 and that she was healthy and did not injure her back during the lesson. He was with her regularly until 31 January 2007 and “she was healthy with no back pain. After January 31^st she was in extreme pain in her lower back to the extent that she could not walk.”

The College’s lay evidence

The College relies on several statements and documents.

It relies on a document headed “Minutes of the St Mary’s staff meeting held on Sunday Jan 28^th 2007 at 3.00 pm”. The author of the notes is not identified. The notes record that five staff members (including Ms Kearney) discussed their activities over the Christmas holidays. Ms Kearney is alleged to have said:

“Lilly [Ms Kearney] at home and in Sydney but had jarred her back whilst surfing but confirmed that she was ok now.”

These notes also refer to Ms Kearney having been stressed and not sleeping well and seeing a doctor because of interaction with another staff member.

The entries in the “notebook” (referred to as the “report book” in Ms Kearney’s evidence) for 31 January 2007 confirm that Ms Kearney picked up three students from the airport and that she made no mention of any back injury or pain in that document.

A document described as “Report from Elizabeth Panickar, Boarding House Co-ordinator”, with a fax date of 26 February 2007 sets out certain events between 27 and 31 January 2007. This report refers to a meeting on the afternoon of Sunday 28 January 2008 when it is alleged that Ms Kearney said she had jarred her back whilst surfing during the holidays. The note added that Ms Kearney said she had to “stop surfing but she made light of the comment and said she was alright.” It was noted that Ms Kearney went up and down stairs “with agility” during the afternoon of 28 January 2007 and carried her personal items to her room with no problem.

The report also refers to Ms Kearney arriving late on Monday 29 January 2007 resulting in Ms Panickar saying “Lilly you will not do this to me again”. It is alleged that Ms Kearney lost her temper and was “beside herself”. Ms Panickar could not make her see sense and Ms Kearney left the building without notifying anybody. Sister Angelina contacted Ms Kearney and asked her to apologise to Ms Panickar. Later that night Ms Kearney telephoned the College and Ms Panickar asked her to come into work as three staff members had been working flat out. Ms Kearney said she was unwell and declined to attend work. Ms Panickar told Ms Kearney that she was on duty from 7am the next day (Tuesday 30 January 2007). Ms Kearney responded that she wanted to come in at 8am and leave for the airport at 8.30. Ms Panickar said that Sister Angelina did not want her to leave too early for the airport, as King would be at the airport first.

On Tuesday 30 January 2007, Ms Kearney arrived at work at 8.20am, did a trip to the airport in the morning, and rested in her room that afternoon. She later offered to do the airport pickup for Ms Stewart on Wednesday 31 January 2007. Ms Panickar said she preferred Ms Kearney to do a Thursday night shift, but Ms Kearney declined.

In respect of the events on Wednesday 31 January 2007, the report records that Ms Kearney returned from the airport and said to Ms Panickar “all was ok”. Ms Kearney did not mention any back pain, but told Ms Panickar that she was leaving to go to Berrima to collect her dogs. The report adds that workers were told not to carry students’ bags. It concluded that Ms Kearney did not see her job at the College as very important and she fitted it in with her other activities.

The College has tendered two emails from Ms Kearney. The first dated 6 February 2007 addressed to Sister Angelina (copied to Ms Panickar) and the second dated 7 February 2007 addressed to Ms Murdoch. The relevant entries in the 6 February email are:

“On Sunday I called in sick, due to severe pain in my lower back. Jo [Stewart] was on duty at the time, so I explained the symptoms, and expressed that if I rested one more night it may improve. I also explained that I had extensive treatment with the Chiropractor on the Saturday, she said that she would tell Liz.
I received a telephone call later the same day, from Jo, and she told me that you had advised that I should see a doctor regarding the condition, and return to work only if my back was completely better.
I saw my doctor on Monday, February 5^th. After her examination she advised that in her opinion I should have a CT scan, and rest. The doctor does not want me to return to work until the 19^th February 07. I have a certificate from her verifying these dates.
Today I spent most of the day at the hospital waiting for the CT scan, that’s the reason I could only inform you of the doctor’s diagnosis until now. I really wanted to inform you and the staff as soon as possible.
I feel sad, that this has affected my return to work, and look forward to returning on the 19^th February healthy and fit.” (emphasis added)

The 7 February email states:

“I have been to see my doctor and she has stated that during the time at work, I incurred the main cause of injury to my back. As you have requested, I shall send you her report.
I returned to work at 8.05am on Tuesday 30^th January 07. I worked 8.05am till 10.05pm that evening. I stayed overnight.
I drove to the Airport, the following morning on Wednesday 31^st January leaving at 6.45am and returning approximately 11.45am. I lifted the luggage and helped the students with other personal items. I assisted the students to settle in to St Mary’s, continued the remaining supervisor duties, then left St Mary’s at 1.55pm to return home as I was off duty.
I could not return to work on Sunday 4^th February 07 as I had pain in my lower back. Sister Angelina had requested that I do not return to work without seeing a doctor, on Monday morning 5^th February 07. I went to my Doctor as Sister Angelina had requested, and received a CT scan that day. The same day the doctor called me into the surgery and gave me her diagnosis, from the results of the scan. She has now given me the form that you have requested.
I shall fax to you the certificate from the doctor, for your review.”

Ms Murdoch wrote the following note on the printed copy of the 7 February email:

“7/2/07 Lily [Ms Kearney] calls 1.40pm.
- She wants to claim workers comp for injury to her back.
- She claims that she had suffered the pain due to the possibility of the vibration in the car whilst driving to the airport – this was the diagnosis of her doctor”

The College also relies on statements from Sister Angelina, Ms Stewart, Ms Panickar and Ms Murdoch.

Sister Angelina states that she saw Ms Kearney on 31 January 2007 after she had picked up some students and she was okay. She added that the normal procedure for picking up students from the airport was that the College’s Sydney agent arranges for someone to meet and assist the students. One such person is King Huang.

Ms Stewart states that Ms Kearney telephoned on the afternoon of 4 February 2007 and said that the vibrations of the trip to the airport had hurt her back and she would not be attending work that evening. She was going to have a scan done because her chiropractor told her that she had a prolapsed disc. After speaking to Sister Angelina, Ms Stewart telephoned the worker and told her she was to get a clearance from her doctor before coming back to work. Ms Stewart recalled a meeting on Sunday 28 January 2007 when the worker said she had to give surfing away because it was hurting her back.

Ms Stewart recalled an occasion in the middle of 2006 when the worker said that she had slipped down some stairs with a plate in her hand and hurt her back. She added that she was seeing a chiropractor.

Though she could not recall the exact words, Ms Stewart recalls the worker saying on 28 January 2007 that she had jarred her back whilst surfing during the holidays and that she had to stop surfing.

Ms Panickar states that she saw the worker on her return from the airport on 31 January 2007 and that the worker made no complaint of having sustained any back injury. She saw the worker go upstairs to her room on the first floor and did not notice her to have any problems walking up the stairs.

Ms Panickar recalled Ms Kearney having said that she jarred her back while surfing during the holidays and had to stop surfing. Ms Panickar enquired how she was and the worker said she was fine. She believes Ms Kearney had a fall while carrying plates at home in July 2006 and was seeing a chiropractor, who she described as good looking.

Ms Murdoch confirms that Ms Kearney telephoned her on the afternoon of 7 February 2007 stating that she wanted to make a workers’ compensation claim, as she had “suffered an injury, back pain due to the airport pick up and at the time she says [sic] it was due to the vibration in the car.” She did not mention having hurt her back whilst lifting luggage. When Ms Panickar received Dr Yagoub’s WorkCover certificate of 7 February 2007 stating that the injury was sustained whilst pulling and lifting heavy luggage and long distance travelling, Ms Murdoch telephoned Ms Panickar and Sister Angelina who both said that boarding house staff were not supposed to lift heavy luggage for students as it was against boarding house policy.

Medical evidence

Dr Yagoub has produced her clinical records. They reveal that the worker attended on five occasions in 1999 complaining of matters unrelated to her spine. The worker attended on 12 occasions between 17 May 2006 and 12 January 2007 for reasons unrelated to her back.

The notes refer to Ms Kearney feeling stressed because of problems with her boss who was verbally abusive and had accused her of things she hadn’t done.

Dr Yagoub’s first entry dealing with back pain is on Monday 5 February 2007. The notes record “lower back pain for the last 2/12 pain radiating to rt leg below rt knee”. On examination there was lower back tenderness, positive straight leg raising, but no neurological deficit. The worker was referred for a CT scan.

Ms Kearney attended on Dr Yagoub on 6 February 2007 when she was referred to Dr Moloney, neurosurgeon, and prescribed naprosyn and digesic.

Dr Yagoub’s notes include three referral letters to Dr Moloney dated 6 February 2007. Each referral has a different history. One records “presented with 2 months hx of lower back pain radiating ti [sic, to] both buttocks, rt leg pain with some weakness”. The second records “presented with lower back pain radiating to the rt buttock & rt leg since 31 January after lifting heavy bags at work”. The third records “presented with lower back pain radiating to both buttocks & to rt leg pain with some weakness. The pain aggrevated [sic] after lifting heavy bags at work”.

Ms Kearney underwent a CT scan on 6 February 2007. The radiologist recorded a history of lower back pain for two months. The CT scan revealed a large right paramedian focal disc herniation at L5/S1 compressing and displacing the right S1 nerve, a left paramedian disc herniation compressing the anterior left side of the thecal sac at the L3/4 level, and a moderate broad based disc bulge without nerve root compression at L4/5.

Ms Kearney again attended on Dr Yagoub on 7 February 2007 when the doctor recorded a history of “lower back pain on & off for 2/12 worse after lifting heavy objects at work.” On this occasion the doctor provided a WorkCover certificate diagnosing lower back pain due to a disc prolapse and stating that the injury had occurred as a result of “pulling & lifting heavy luggage, also long distance drive”.

Ms Kearney again attended on Dr Yagoub on 23 February 2007. The doctor’s notes record the following entry:

“Has had lower bacakpain [sic] July 2006, airport pick up, saw chiropractor & pain settles in 2 weeks”.

Dr Yagoub prepared a report on 23 February 2007 addressed to Catholic Church Insurances Limited in which she recorded the following history:

“Ms Elizabeth Savage [nee Kearney] …presented to me on 5 February 2007 C/O severe lower back [sic] radiating to the right lower leg. The pain gets worse on movement and after sitting or standing for a few minutes. The pain requires regular analgesia. Elizabeth stated she has had lower back pain on and off for the last 2 months, but gets [sic, it got] worse with right leg radiation since she had an airport pickup on 31^st January 2007 where she lifted heavy bags after driving long distances.
Elizabeth stated that she had lower back pain in July 2006 also followed by an airport pick up and saw a chiropractor but the pain was not severe. The pain settled within 2 weeks, Ms Savage is a patient of the practice since 1999. I’ve been seeing her on a regular bases [sic] since May 2006 for different problems this is the first time she presents with lower back pain. When I examined Ms Savage on 5th of February 2007 she was in severe pain with lower back tenderness and a leg raising test was positive in both sides, there was restriction in movement of both legs worse on the right side. There was no Neurological deficit.” (emphasis added)

Dr Yagoub then referred to the findings in the CT scan and concluded that, in her opinion, the worker’s current symptoms were “related to her work injury”.

On 26 February 2007, Dr Yagoub recorded that Ms Kearney complained of constant right buttock pain and pain radiating into her right leg, which was rated at eight out of ten.

Clinical notes from Mr Gilsenan, chiropractor, (confirmed in his report of 16 March 2007) reveal that Ms Kearney attended on 4 August 2006 complaining of having had lumbo-sacral pain for a period of five days and having had similar pains on and off for approximately five years. She also complained of pain and weakness in both legs, lower leg cramps, lower abdominal pain and dizziness. Physical examination revealed right sacroiliac joint and fifth lumbar vertebra subluxation. X-rays revealed the L5 disc to be 50 per cent of the normal height with a mild lateral spinal curve to the left. Her last visit to Mr Gilsenan was on 1 September 2007.

Mr Gilsenan reported on 7 March 2007 that he had no record of having treated the worker on 4 February 2007.

Dr Moloney saw Ms Kearney on 13 March 2007 and reported to Dr Yagoub on 14 March 2007. He took a history that in the process of lifting a particularly heavy bag, Ms Kearney “felt something give in her back and immediately knew that there was something quite severe.” Over the next couple of hours she developed numbness radiating into the groin and over the lateral aspect of the right thigh into the right leg. Her past medical history was good. On examination, Ms Kearney was hardly able to move and straight leg raising was virtually non-existent because of pain. An MRI scan revealed an “alarming picture” of a very large disc protrusion at the L4/5 level. On seeing the scan, Dr Moloney asked Ms Kearney if she had any problems with incontinence and she confirmed that she did. It was obvious to Dr Moloney that the worker was developing a “cauda equina syndrome” and he advised her to have urgent surgery.

Ms Kearney came under the care of Dr Woodland in Perth in or about May 2007. He reported to a Dr Moss on 3 May 2007 that Ms Kearney presented with a three-month history of persisting severe right S1 radiculopathy symptoms and with subtle bladder and bowel dysfunction and perineal numbness. Her symptoms correlated with a massive posteriocentral disc extrusion at the L5/S1 disc level, confirmed on CT and MRI scans.

Dr Woodland took a history that Ms Kearney had “some degree of back ache over the years but has managed reasonably well”. In the past she kept herself fit with a good ongoing exercise program. On 31 January 2007 she was moving luggage into the back of a vehicle when she “got acute, severe lumbar back pain which worsened over the next couple of hours then with [the] development of numbness and pain down the right lower limb to the calf and sole of the foot, also with numbness into the perineal and groin region.” Her symptoms were disabling and she had difficulty standing, let alone walking more than a few steps.

Dr Woodland performed a right-sided L5/S1 laminotomy discectomy and nerve root decompression at St John of God Hospital, Perth, on 7 May 2007. At surgery, a massive disc extrusion was removed and the S1 nerve decompressed.

Dr Bodel, orthopaedic surgeon, examined Ms Kearney for medicolegal purposes on 21 February 2008. He took a history that she lifted a heavy piece of luggage on 31 January 2007 and twisted to place the bag in the rear of a Tarago when she felt immediate pain in her lower back. She continued with her job, ultimately resting hoping the pain would settle.

Dr Bodel recorded that at the time of the accident Ms Kearney was “otherwise quite well and not being treated for any other medical conditions.” He noted that she had an episode of back pain six months prior to January 2007 and that she consulted her local doctor and was given analgesics and anti-inflammatory medication. She also attended on a chiropractor at that time. The chiropractic treatment helped her symptoms greatly. Prior to the January 2007 accident, Ms Kearney was very active and enjoyed going to the gym, yoga and pilates.

Dr Bodel was satisfied that the episode of injury on 31 January 2007 caused Ms Kearney’s disc rupture at the L5/S1 level. He also took a history that her back pain in mid 2006 was due to a work related injury, but he does not record what that injury was. That episode settled fairly quickly with minimal treatment from a chiropractor. As no scans were performed in 2006, Dr Bodel was uncertain if any disc pathology was present “as a result of that first injury”. He stated that Ms Kearney’s statement of 6 March 2007 confirmed the “history of the mechanism of injury”. Based on the history he took, he thought it unlikely that there was any disc pathology present at that time as there was no major neurological complaint recorded and she recovered very quickly.

The College’s insurer referred Ms Kearney to Dr Matheson, consultant neurosurgeon, on 14 March 2007. Dr Matheson did not receive critical information from the chiropractor until after his interview with Ms Kearney and he was therefore unable to seek her comment in respect of her incomplete history. He recorded that on 31 January 2007 Ms Kearney lifted some baggage into the back of a Tarago van when she got low back pain and pain into her right buttock, thigh and groin with numbness in a similar distribution. She completed her day’s work and then rested and saw her local GP on the following Monday. Ms Kearney denied any previous back pain.

Dr Matheson noted the CT and MRI scans and confirmed the diagnosis of a ruptured lumbosacral disc with right S1 irritation that required surgery.

The insurer provided Dr Matheson with a copy of Dr Yagoub’s report of 23 February 2007, the Panickar report, and other notes from the College together with the report from Mr Gilsenan of 7 March 2007. He felt the notes raised “seriously the veracity of her claimed history” but that did not deny the presence of the lesion nor his support for the fact that she should have surgery. He felt that there was a disc problem present prior to 31 January 2007 and that it would be of interest to obtain more information from the chiropractor. He felt there was some doubt as to whether any injury had occurred and that, at best, the injury was an exacerbation that would have been temporary though he needed to obtain an accurate history.

Dr Matheson reviewed Ms Kearney again on 13 May 2008 when she insisted that her problems began on 31 January 2007 when she lifted a suitcase out of a Tarago vehicle and got low back pain and pain into her right buttock, thigh and groin. Dr Matheson again referred to Dr Yagoub’s report referring to pain from an airport pickup in July 2006 and to her chiropractic treatment at that time. On close questioning, Ms Kearney was dismissive of any previous back pain, but admitted that she had back pain 20 years ago when she had triplets and that she has had minor low back pain since.

Dr Matheson referred to Dr Bodel noting “previous back pain with an emergency department presentation at the St John of God Hospital in Perth and the episode 6 months prior to this accident”. Dr Matheson then stated (at page two):

“Thus there is an established history of a back disorder but to what extent it was disabling her, is something that I am unable to sort out. If Ms Savage’s account is accepted, it was minimal. I cannot take the pre-existing history of back pain further and I can get no history of pre-existing leg pain.”

The doctor then confirmed that after 31 January 2007 Ms Kearney developed a ruptured lumbosacral disc with claims of urinary dysfunction, which led to her referral to Dr Moloney and to surgery which was performed in May 2007.

Under “Opinion”, Dr Matheson concluded (at page three):

“We know from her previous scans that she had a large loose fragment out from the lumbosacral region and that there was some minor degenerative changes at L4/5. We also know that she has a previous history of back pain however the rupture of the disc certainly occurred about the time of the described incident she talked of. Whether it caused it or not is another matter but it occurred about that time and if one accepts her history, one would accept that the incident of 31/01/07 was a material aggravation of an underlying back condition leading to the need for her surgery.”

In answer to the question “Does the worker’s condition relate in any way to a previous injury?” Dr Matheson said:

“Yes I think it does but from the history given, one would have to accept that the incident of 31/01/07 ruptured the disc and led to her current incapacity. It may have occurred spontaneously at home but we just have to go on the history given.”

He added (at page four) of his report that, if it was accepted that the ruptured disc occurred on 31 January 2007, the work would have to be considered a substantial contributing factor to the injury and it had not ceased to be related to her employment.

Dr Matheson reviewed Ms Kearney again on 12 February 2009. He again took a history of her back symptoms developing whilst loading luggage on 31 July [sic, January] 2007. He concluded that the condition diagnosed was consistent with the history obtained.

THE ARBITRATOR’S REASONS

In an ex tempore decision the Arbitrator reviewed the evidence and concluded:

(a)     the events of 31 January 2007 may or may not have been reported to Dr Yagoub on 5 February 2007, but nothing really hinged on that (T87.13);
(b)     the history to Dr Matheson and that doctor’s request to see further documentary evidence “contemplates” a level of a lack of sophistication or understanding rather than any deceit on the part of Ms Kearney (T89.1);
(c)     his impression was that Ms Kearney was “timid and somewhat befuddled and confused by the questions” (T89.16) and that she was “trying to be as careful as she could in terms of giving truthful answers, particularly in the context where it was obvious it was being put to her that she had not been truthful beforehand” (T89.19). Ms Kearney was someone who was “unsophisticated” and “was not used to being asked questions in the manner they were being asked” (T89.22);
(d)     he was not satisfied that Ms Kearney was “in any way being deceitful or intending to be deceitful in the history she provided to the several practitioners whom she consulted either for treatment or for the purpose of giving evidence” (T89.27). He did not think Ms Kearney was trying to hide her prior history of back pain;
(e)     he noted her admission that she lied to her employer in the email of 6 February 2007 relating to having sought chiropractic treatment on Saturday 3 February 2007, but she explained her reason for lying as being prompted by her concern about her job security. Her concerns on that issue were corroborated to some extent by Ms Panickar’s account of the interaction with Ms Kearney between 27 and 31 January 2007 (T89.56-90.11). Her insecurity was also corroborated by an entry in Dr Yagoub’s notes for 26 October 2006 which refer to problems at work with her boss;
(f)   he accepted Ms Kearney’s evidence that she delayed reporting her injury because of her fear for her job (T90.33);

(g)     rather than perpetrating a fraud on the employer by seeking benefits to which she was not entitled, Ms Kearney tried to convey the impression to her employer that it was not a significant injury (T90.41);
(h)     Ms Murdoch’s statement that the worker only referred to vibrations in the car, was not consistent with the Notice of Injury Form she completed on 8 February 2007 where she said that the injury occurred whilst driving and also lifting luggage (T91.7-11). Therefore, he was not satisfied that Ms Kearney had misrepresented at any stage or given conflicting reports regarding how the mechanism of injury occurred;
(i)   Ms Kearney’s answers in her claim form can be explained by her lack of sophistication and her lack of experience in filling out forms (T91.25);
(j)   Ms Kearney carried out her duties, which involved some physical work, between 27 and 31 January 2007 and was not observed to be in pain or have any problem with walking or performing her job (T91.31);
(k)     in respect of Ms Panickar’s observation that the worker walked up stairs without a problem on 31 January 2007, it was noted that Ms Panickar is not a “clinician of any sort” and it could not be inferred from that evidence that the worker did not injure herself in the way she described (T91.37);
(l)   Ms Kearney’s evidence is that her pain progressively worsened after the events at the airport;
(m)   there is nothing up until 31 January 2007 that would suggest that Ms Kearney had suffered a disc rupture at the L5/S1 level. She had a degenerate back and had back pain on and off, which was not unusual (T91.55-92.2);

(n)     he was satisfied on the balance of probabilities that Ms Kearney’s version of what happened on 31 January 2007 was to be believed (T92.3). That is the view of Dr Matheson and Dr Bodel;
(o)     he did not accept the submission that Dr Bodel’s opinion should not be given any weight because of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) , finding that the doctor’s report provided a “fair climate” for the acceptance of Dr Bodel’s opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 (‘Paric’), and
(p)     with respect to section 9A, the rupture occurred as a consequence of Ms Kearney carrying out a task for her employer and he was satisfied that employment was a substantial contributing factor to the injury.

SUBMISSIONS

It is submitted on behalf of the College that the evidence does not support a finding that Ms Kearney received an injury as alleged or at all on 31 January 2007 and, if an incident did occur on that day, it did not cause the L5/S1 disc prolapse and employment was not a substantial contributing factor to the injury. Reliance is placed on the submissions made by Mr Saul at the arbitration on 1 May 2009, which he supplemented at the oral hearing on appeal. The key points made on behalf of the College are:

(a)     the findings as to credit would determine whether the allegation that Ms Kearney sustained a disc rupture to L5/S1 on 31 January 2007 could be accepted;
(b)     Ms Kearney wrongly denied in her claim form that she had any problems with her back before 31 January 2007 and denied to Dr Matheson any previous back pain. The fact is that she had severe back pain that prompted her to see a chiropractor in 2006, jarred her back surfing in the 2006/7 Christmas holidays, and complained to Dr Yagoub on 5 February 2007 that she’d had back pain for two months;
(c)     Ms Kearney would not be accepted as a witness of truth and her answers in cross-examination were not straightforward. She attempted to anticipate, to “obfuscate” and did not answer questions directly. He made specific reference to the cross-examination about the claim form (T13.27 to T14.10), surfing (T28.4 to T29.52 and T23.45 to T24), and her contact with Ms Panickar (T16.15 to T17.16 and T18.6-17);
(d)     Dr Yagoub’s notes for 5 February 2007 record that Ms Kearney had lower back pain for the last two months and her notes record no mention of the lifting incident until 7 February 2007;
(e)     Ms Kearney told Dr Moloney on 13 March 2007 that she felt something give in her back when she was lifting a heavy bag and immediately knew that there was something quite severe. This is a reconstruction of her story, which is inconsistent with Ms Panickar’s version of the events on 31 January 2007. If Ms Kearney was in severe pain at the time of the injury it would be most unusual for her to go back to her workplace and make no complaint of it. She left work on that day to pick up her dogs. If she was too scared to report it because of concerns about her job, one would have expected her to report it to her doctor;
(f)   Ms Kearney deliberately told an untruth in her email of 6 February 2007 (about having seen a chiropractor on Saturday 3 February) to her superiors in order to advance her position;
(g)     her histories are unreliable and too wild to accept. She told some people she had no problems before 31 January 2007 (see the claim form) and told others she had five years of problems and Dr Matheson, at her second attendance, of 20 years of problems with minor back pain. She told Ms Stewart that the problem was caused by vibrations;
(h)     the evidence was so conflicting and contrasting that the Commission could not be satisfied on the balance of probabilities that Ms Kearney sustained any injury on 31 January 2007 which gave rise to a herniated disc. It may well be that she received some form of musculo-ligamentous injury, but Ms Kearney’s evidence does not allow a conclusion with certainty that anything happened on 31 January 2007 which gave rise to a herniated disc;
(i)   Ms Panickar and Ms Stewart both referred to Ms Kearney having injured herself at home in July 2006, which is shortly before she saw her chiropractor in August 2006;
(j)   Ms Stewart’s evidence is that Ms Kearney only referred to the vibrations hurting her back;
(k)     Ms Kearney’s evidence can’t be accepted in circumstances where the documentary evidence is so against her and her evidence is fractured by her inability to give a clear history;
(l)   her employment was not a substantial contributing factor to her disc problem, and
(m)   the Commission would be very suspicious of the worker’s motives and of the evidence on which she relies.

On behalf of Ms Kearney, Mr Hogno submitted at the arbitration:

(a)     Dr Matheson’s evidence is that the injury occurred at about the time of the events alleged on 31 January 2007;
(b)     the worker is unsophisticated. The fact that she asked for some questions to be repeated and pondered her answer is not a reflection of her desire to mislead, but a reflection of her past relative lack of experience in terms of dealing with employers in circumstances where she would be required to provide information at a level of accuracy such as is required in matters of this sort;
(c)     prior to 31 January 2007, Ms Kearney had not complained to her treating general practitioner of back pain and she only saw Mr Gilsenan for a short time in mid 2006 and did not return to see him again;
(d)     the College’s own evidence does not support a suggestion that Ms Kearney returned to work at the beginning of the school term in distress or difficulty;

(e)     the events that occurred at work leading up to 31 January 2007 would have led Ms Kearney to believe that her employment may have been in jeopardy;
(f)   in respect of the worker’s failure to report the injury, she was a person with limited experience in the workforce in general and she had a hope or expectation that her condition would improve over the next few days;
(g)     Dr Yagoub recorded a history of the work injury in one of her letters to Dr Moloney dated 6 February 2007 and it is open to accept that that is the version Ms Kearney gave to the doctor on 5 February, though it is not recorded in the doctor’s notes until 7 February;
(h)     from at least 6 February 2007, at the latest, or from 5 February 2007, on Ms Kearney’s evidence, Ms Kearney was giving a history of something that occurred while lifting at work on 31 January 2007. It may be that Dr Yagoub is not the best note taker. Her history of a lifting incident at work in June or July 2006 is clearly incorrect;
(i)   the alleged vibration in the car is a red herring;
(j)   the history of the injury occurring whilst transferring the female student’s luggage is clear and should be accepted;
(k)     if the surfing incident caused the disc herniation, the question arises as to how Ms Kearney was able to return to work and why she didn’t see a doctor before 31 January 2007;
(l)   if it is accepted that the disputed conversation about surfing took place, the evidence is that Ms Kearney said she was fine afterwards;
(m)   if there are credit issues, they are not such as to destroy the overall tenor of Ms Kearney’s evidence; and
(n)     the objective material is such that the Commission would be able to accept that Ms Kearney’s version of events remains credible.

At the oral hearing of the appeal, Mr Harris submitted that:

(a)     it was perfectly plausible that Ms Kearney lifted luggage at the airport on 31 January 2007 because the inference is that no one else was available to help;
(b)     because Ms Kearney thought she would get better, it is understandable that she did not make any formal report of the injury on 31 January 2007;
(c)     as a specialist tribunal I can infer that the deterioration in Ms Kearney’s symptoms in the days following 31 January was related to the injury sustained on that day;
(d)     Ms Kearney firmly denied being an avid surfer (T23.50) and there is no evidence to the contrary. She was well aware that an allegation had been raised that she injured herself surfing and obtained evidence from Mr McInnes to meet it;
(e)     the Arbitrator’s comment that Ms Kearney was timid and confused was open;
(f)   in respect of Dr Yagoub’s note on 5 February 2007, there are three possible explanations: first, Ms Kearney didn’t tell the doctor of the work events, second, Ms Kearney told the doctor and the notes are wrong, and last, Ms Kearney didn’t give the doctor the full story on 5 February but did on 6 February, and
(g)     one should exercise care when reading doctors’ notes because “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury” (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (‘Davis’)) and it is possible that Dr Yagoub made a mistake.

DISCUSSION AND FINDINGS

In light of the authorities of Tan and Sapina, and given that I did not see or hear Ms Kearney give evidence, I am constrained to approach the Arbitrator’s findings “in a manner similar to that described in Fox v Percy” (Basten JA at [11] in Tan) and the Arbitrator’s decision is “not to be ignored” (Allsop P and Hoeben J at [57], Beazley JA agreeing in Sapina).

In Fox v Percy the majority observed (at [28]) that “In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings”. Their Honours added (at [29]) that “although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case.”

Their Honours stated (at [30] and [31]) (citations omitted):

“It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
‘... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.” (emphasis added)

After quoting the above passage, and referring to several articles on the reliability (or unreliability) of demeanour as a method for determining facts, Ipp JA said in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [27]):

“These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.”

The above approach must be applied with full awareness and acknowledgement that, in conducting a section 352 review, my task is to “decide what is the true and correct view” (per Spigelman CJ in The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (‘Chemler’) at [28]), but with due allowance for the fact that I did not see or hear Ms Kearney give evidence. That I did not see or hear Ms Kearney give oral evidence is not determinative of the outcome of the review. Though the Arbitrator accepted Ms Kearney’s version of the events on 31 January 2007, he did not do so on the basis of his view of her demeanour – indeed he expressly noted the inherent danger of placing too much weight on demeanour – but on his assessment of the evidence overall. Therefore, whether his conclusion is the true and correct view depends on a careful analysis of the incontrovertible facts the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy).

Approaching the matter in this way I have real difficulty in accepting Ms Kearney’s story, which, based on the objective evidence, is riddled with inconsistencies and, in at least one instance, openly dishonest. Whilst counsel for the College made much, both at the arbitration and on appeal, of Ms Kearney’s responses in cross-examination, I do not regard those responses as determinative. Though there were instances when her answers could have been more direct, I am in general agreement with the Arbitrator’s assessment that Ms Kearney was, at times, confused by the questions and that she may well be an unsophisticated person. That does not mean, however, that I am bound to accept his ultimate conclusions, if those conclusions are inconsistent with incontrovertible facts or contrary to compelling inferences.

Ms Kearney’s claim is based on the history that she experienced “immediate pain in her lower back” when she lifted a heavy piece of luggage and twisted to place it into the back of the Tarago van (Dr Bodel 21 February 2008, at page two), or that in “the process of lifting a particularly heavy bag, she felt something give in her back and immediately knew that there was something quite severe” (Dr Moloney 14 March 2007). For the reasons outlined below, these histories are not consistent with the objective evidence, and, as a result, her claim cannot be accepted.

I do not agree with the Arbitrator that nothing hinges on the initial reporting to Dr Yagoub. The initial reporting to Dr Yagoub is of considerable significance, as she was the first doctor Ms Kearney saw after 31 January 2007. Dr Yagoub’s note on 5 February is consistent with the history recorded by the radiologist who performed the CT scan on 6 February, namely “lower back pain for two months”, with Dr Yagoub’s report of 23 February 2007, which referred to Ms Kearney having had low back pain on and off for the last two months, with one of the three referral letters Dr Yagoub wrote to Dr Moloney on 6 February, and with the fact that Dr Yagoub did not issue a WorkCover certificate until 7 February. I therefore do not accept that Dr Yagoub inaccurately recorded Ms Kearney’s history on 5 February 2007. This seriously impacts upon Ms Kearney’s reliability because she maintains that she told Dr Yagoub on 5 February about the events of 31 January. I do not accept that Ms Kearney made any mention at her initial attendance on 5 February to Dr Yagoub about her back symptoms being work related. The incontrovertibile evidence is that she did not. This evidence significantly undermines Ms Kearney’s claim that she injured her back whilst lifting luggage in the course of her employment on 31 January 2007.

Davis does not assist Ms Kearney. In that case the Court was concerned with a doctor’s apparent misunderstanding of “the precise mechanics of the immediate antecedent of the fall” (Mason P at [35]). I am dealing with a question of the reliability of a history a treating doctor took five days after an event that Ms Kearney says caused her immediate pain. Rather than taking a history of that event, Dr Yagoub took a completely different history, namely that Ms Kearney had back pain for two months. That omission is not overcome by Dr Yagoub’s report of 23 February 2007, which tries to blend the two conflicting histories together by stating that the low back pain that had been present on and off for two months got worse with right leg radiation “since she had an airport pickup on 31^st January 2007 where she lifted heavy bags after driving long distances.” That report is unpersuasive because Ms Kearney has consistently denied having had back pain in the two months prior to 31 January, and because Ms Kearney’s case is based on her developing back pain immediately on lifting and twisting with the luggage.

In light of Dr Yagoub’s note on 5 February, the evidence from Mr Gilsenan of Ms Kearney’s symptoms when he treated her in August and September 2006, and the evidence from Ms Stewart and Ms Panickar about the surfing incident (see [119] below), Ms Kearney’s assertions in her claim form that her back was normal before the accident and that she had not previously suffered any similar injury or condition cannot be accepted. I do not accept the Arbitrator’s explanation that the answers on the claim form can be explained by Ms Kearney’s lack of sophistication and her lack of experience in completing forms. Her answers were, in light of the objective evidence, demonstrably false. This further undermines her reliability.

The events immediately after returning from the airport on 31 January are also inconsistent with Ms Kearney having injured herself in the manner now alleged. Ms Kearney completed her normal duties without any official complaint to her employer. I accept that she told Ms Panickar on 31 January that she was okay, and that she made no complaint of any work injury when she spoke to Ms Stewart on two occasions on 4 February.

Her claim is also undermined when one analyses her statements. Her first statement makes no mention of experiencing back pain as she lifted luggage, but alleges she “reached up and closed the boot and [she] felt [she] had lower back pain”. Her claim form refers to the accident occurring as she picked up luggage and turned to place it in the van, but makes no mention of experiencing pain at that time. Her first statement also refers to her back hurting as she drove back to the College and that there was a fair bit of vibration in the van. This statement is consistent with Ms Kearney making no complaint to Ms Stewart or Ms Murdoch of sustaining any injury whilst lifting luggage and, for this reason, I believe it is more likely that Ms Kearney only complained about pain due to vibrations in the van and not about pain on lifting luggage.

Ms Kearney’s description of the mechanism of injury and when her pain started is quite different in her statutory declaration given 20 months after the event. In that document she claims that she felt pain in her back when she lifted the student’s bag off the road after it had fallen off the trolley, felt an increase in back pain when she got into the van to lift a lever to fold the back seat flat, and the pain “became very severe” as she reached up to close the rear door.

Given the inconsistencies between Ms Kearney’s two statements, the relative closeness in time of the first statement to the events on 31 January, the content of Dr Yagoub’s notes of 5 February and the absence from those notes of any reference to pain while lifting luggage on 31 January, I prefer the evidence of Ms Stewart as to the content of her conversation with Ms Kearney on 4 February and Ms Murdoch’s evidence as to her conversation with Ms Kearney on 7 February. Neither conversation supports Ms Kearney’s current claim that she injured her back whilst lifting luggage on 31 January.

The Arbitrator observed that Ms Murdoch’s statement about Ms Kearney only referring to the vibrations in the car was not consistent with the Notice of Injury Form she completed on 8 February and, as a result, he was not satisfied that Ms Kearney had at any stage misrepresented or given conflicting reports regarding the mechanism of injury. It is true that the Notice of Injury Form completed by Ms Murdoch refers to “strained back whilst driving and also lifting luggage”, however, it is clear from the content of the form that Ms Murdoch completed it after she had received Dr Yagoub’s certificate of 7 February, which refers to lifting luggage and driving. I therefore infer that the relevant information in the Notice of Injury Form came from the 7 February medical certificate, which Ms Kearney faxed to the College the day she got it (see Ms Murdoch’s statement). It follows that I do not agree with the Arbitrator’s conclusion that Ms Kearney did not give conflicting reports about the mechanism of injury, she clearly did.

Ms Kearney has tendered no evidence that merely reaching up to close the van’s rear door, or driving a van from the airport to the College, could have caused the pathology in her back. Her case is firmly based on an acceptance of her belated history that she experienced immediate back pain on lifting and twisting to place a suitcase into the Tarago.

There are other reasons why Ms Kearney’s case is implausible and unacceptable. Notwithstanding that she had several opportunities on and shortly after 31 January to tell her employer about her alleged injury, she did not do so until much later. Her explanation for not doing so, which the Arbitrator accepted, is that she feared for her job. Though it is clear that there were tensions between Ms Kearney and Ms Panickar, there is no persuasive evidence that Ms Kearney’s job was in jeopardy. Rather than reacting adversely to Ms Kearney’s first mention of back pain on 4 February, Sister Angelina merely requested that a doctor clear Ms Kearney for work before returning.

The fact that Ms Kearney lied to Ms Stewart on 4 February and in the email of 6 February about having seen a chiropractor on 3 February further undermines her credibility. The email of 6 February is of particular importance because Ms Kearney wrote it after she saw Dr Yagoub and, presumably, after she had the doctor’s diagnosis. Notwithstanding that she claims to have told the doctor on 5 February about the work incident and that she was aware of the doctor’s diagnosis, Ms Kearney did not mention any work incident in the email. I do not accept that she failed to do so because of a fear for her job. The email is not consistent with Ms Kearney experiencing immediate back pain when she lifted luggage on 31 January, as she told Drs Bodel and Moloney.

Ms Kearney wrote another email on 7 February. Again, this document fails to explain the cause of her symptoms in a manner consistent with her histories to Drs Moloney and Bodel. It states that she had seen her doctor and her doctor stated “during the time at work, I incurred the main cause of injury to my back”. The email then recounts that she lifted luggage and assisted students to settle in to St Mary’s, but does not suggest that she felt immediate pain as she lifted and twisted, as she now claims. The failure to do so is not adequately explained.

The general reliability of Ms Kearney’s evidence is further weakened when one considers her evidence about whether she jarred her back while surfing in the Christmas holidays. Her denial of that injury is contradicted by the minutes of the meeting on 28 January and the statements from Ms Stewart and Ms Panickar. Given the content of the minutes and the lack of detail about the circumstances in which Mr McInnes knew Ms Kearney, I prefer the evidence from Ms Stewart and Ms Panickar about the surfing incident in preference to the evidence from Mr McInnes and Ms Kearney. The evidence of a back injury while surfing during the Christmas holidays is consistent with Dr Yagoub’s 5 February history of back pain for two months.

As noted at [106] above, the histories recorded by Drs Moloney and Bodel are significantly different to the histories in Ms Kearney’s first statement and to Dr Yagoub on 5 February. Ms Kearney’s case turns on the accuracy of the histories she gave to Drs Molony and Bodel. These histories cannot, however, sit with Ms Kearney’s first statement, the evidence from Ms Stewart and Ms Murdoch, which I accept, Dr Yagoub’s entry in her notes on 5 February, or the history recorded by the radiologist. Dr Bodel’s opinion that Ms Kearney’s statement of 6 March 2007 “confirms the history of the mechanism of injury” (see [85] above) is incorrect. The assertion of when and how the pain commenced in the statement of 6 March (Ms Kearney felt she had lower back pain when she reached up and closed the boot) is completely different to the history Ms Kearney gave to Dr Bodel of feeling immediate low back pain on lifting and twisting with a heavy piece of luggage. In these circumstances, I do not accept that their histories are correct or that they provide a fair climate for the acceptance of their conclusions (Makita).

In respect of the further submissions made on behalf of Ms Kearney, I make the following observations.

Ms Kearney relies on Dr Matheson’s evidence in support of her claim. That evidence, however, only supports her claim if the history on which it is based is correct. Dr Matheson’s history is that Ms Kearney got low back pain when she lifted some baggage into the back of a Tarago van. For the reasons outlined above, that history is incorrect and, as with Dr Bodel’s evidence, to the extent that Dr Matheson’s conclusion is based on it, it cannot be accepted.

I accept that Ms Kearney had not attended on Dr Yagoub because of back pain prior to 31 January 2007, but that is not determinative and does not overcome the significance of Dr Yagoub’s note on 5 February. I accept that Ms Kearney did have pain back pain in the two-month period prior to 5 February and that fact, in the light of Ms Kearney’s denials, is relevant to an assessment of the overall reliability of her claim.

It may well be, as the Arbitrator found, that Ms Kearney was not intending to be deceitful in giving her past medical histories to the doctors, but that is not determinative. The difficulty with the claim is not just Ms Kearney’s failure to disclose her past medical histories, though that undermines her credit, but the fact that she did not experience, as she now claims, immediate pain in her back on lifting luggage on 31 January.

Even accepting the submission by Ms Kearney’s counsel at the appeal hearing that Ms Kearney did lift luggage on 31 January, that does not overcome the difficulties with her histories to Drs Bodel and Moloney that I have outlined above.

That Ms Kearney thought she would get better may provide an explanation for her not reporting any injury on 31 January but it does not adequately explain her failure to refer to the alleged cause of her back pain on 4 February, on 5 February to Dr Yagoub, or in her detailed email of 6 February.

As a member of a specialist tribunal, it may well be open to me to infer that Ms Kearney’s symptoms deteriorated after 31 January and that that deterioration resulted from an incident involving lifting luggage on that day. However, for the reasons set out above, I do not accept that Ms Kearney experienced pain in her back while lifting luggage on 31 January and, in those circumstances, it is not open to draw the inference urged.

As I am not satisfied that Ms Kearney injured her back on 31 January, it is not necessary to determine if employment was a substantial contributing factor to such injury.

CONCLUSION

Having conducted a review on the merits (per Chemler at [28]), I am satisfied that the true and correct position is that, given the incontrovertible facts set out above, the contemporary materials, objectively established facts and the apparent logic of events, Ms Kearney did not injure her back while lifting luggage at Sydney airport on 31 January 2007 or as a result of driving from the airport to the College. There will be an award for the College.

DECISION

The Arbitrator’s determination of 4 May 2009 is revoked and the following orders made:

“1. Award for the respondent employer.
2. No order as to costs.”

COSTS

Each party is to pay her or its own costs of the appeal.

Bill Roche
Deputy President

20 October 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE