Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Lund
[2005] NSWWCCPD 141
•24 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Lund [2005] NSW WCC PD 141
APPELLANT: Trustees of the Roman Catholic Church for the Archdiocese of Sydney
RESPONDENT: Margaret Lund
INSURER:Catholic Church Insurances Ltd
FILE NUMBER: WCC 3291-05
DATE OF ARBITRATOR’S DECISION: 12 July 2005
DATE OF APPEAL DECISION: 24 November 2005
SUBJECT MATTER OF DECISION: Weighing of evidence as to causation
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Astridge & Murray, Solicitors
Respondent: McClellands, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, are to pay Mrs Lund’s costs in this appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 20 July 2005, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (‘the Trustees’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 12 July 2005.
The Respondent to the Appeal is Margaret Lund, who was born on 2 June 1938 and is aged 67. Mrs Lund is a teacher, and had been employed on a permanent part-time basis by the Catholic Education Office in the Inner Western Region of Sydney since January 1999. She was injured in a motor vehicle accident on 13 December 2001 while driving to attend a meeting in the course of her employment, when another vehicle crossed a red light and struck the passenger side of Mrs Lund’s car, propelling her car into a telegraph pole. As a result of the accident, Mrs Lund claims to have suffered injuries to her neck, back, hip and left leg. She continued to work on a part-time basis until July 2002. On 28 June 2004, she lodged a claim for medical, hospital or related expenses, and for compensation for permanent impairment and pain and suffering. The Trustees disputed liability and, on 4 March 2005, the Commission registered Mrs Lund’s ‘Application to Resolve a Dispute’. The Trustees’ ‘Reply’ was received on 23 March 2005.
On 13 May 2005, the Arbitrator conducted a teleconference with the parties at which it was agreed that the threshold issue of liability in respect of Mrs Lund’s back injury should proceed to arbitration. On 5 July 2005, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing with the parties, delivering an oral (ex tempore) decision at the end of the hearing. The Arbitrator’s Certificate of Determination, set out below, was issued on 12 July 2005.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 12 July 2005, records the Arbitrator’s orders as follows:
“1. Having found that the Applicant did suffer an injury to her low back in the incident on 13th December 2001, I order that the matter proceed to AMS [Approved Medical Specialist] examination by an orthopaedic specialist.
2. In the absence of agreement, the Registrar is to appoint an AMS specialist from the panel, such appointment not to be made until after 2nd August 2005 (to enable the Respondent to consider and if appropriate to lodge an appeal from this decision).
3. I order the Respondent to pay the Applicant’s costs of the arbitration hearing, to be assessed if not agreed.”
In the course of his ex tempore decision (arbitration hearing transcript at page 24), the Arbitrator said that while Mrs Lund:
“was initially shaken up and not clear in her own mind of exactly the areas that were affecting her and, hence, vague at the hospital, that by January 2002, having expected her condition consistent to how she had been before to get better, she became aware that her low back was not getting better and, hence, it was the subject of a specific complaint, that when she tried to walk it was worse and this, in due course, led to the development, she claims, of left leg pain. To my mind that is a credible and believable situation, supported by the medical evidence, and I accept her in this regard.”
The Arbitrator was satisfied (arbitration hearing transcript page 24) that:
“as a result of the motor vehicle accident on 13 December 2001, the worker, Mrs Lund, did suffer an injury to her low back as well as her neck and chest. The chest and neck pain has resolved.”
He noted that the injury may be no more than an aggravation of an underlying condition with the consequence that the Approved Medical Specialist might come to the view that there is a very low or nil level of impairment.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether Mrs Lund suffered an injury to her back and left leg as a result of the motor vehicle accident on 13 December 2001. The Trustees submit the Arbitrator’s finding on this issue was against the weight of evidence. The parties’ submissions on this issue are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties. Both parties are content for the matter to be determined ‘on the papers’. Having considered these submissions and the other 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.
Neither party sought to adduce fresh evidence.
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 Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of compensation claimed by Mrs Lund is $34,500.00 and represents 100% of the amount in dispute, the Arbitrator’s decision being on the threshold issue of liability. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The Trustees note that in the immediate period following the accident on 13 December 2001, there is no mention in the ambulance, hospital or other medical records of Mrs Lund complaining about her back or left leg. The first medical record of Mrs Lund complaining of back pain after the accident is an entry dated 13 February 2002 by her general practitioner, Dr Michael Huber, in his records, but even then there is nothing to connect the complaint with the accident. There is a further entry dated 9 April 2002 referring to Mrs Lund’s back and left groin, but again with no reference to the accident. The entry dated 7 May 2002 appears to be the first complaint of back pain radiating into the left leg and thigh.
The Trustees submit that reference to bruising to Mrs Lund’s back in a WorkCover Register of Injuries maintained by her employer dated 14 December 2001, and in Mrs Lund’s workers compensation claim form dated 19 December 2001, are completely inconsistent with the medical records.
The Trustees point to Mrs Lund’s longstanding back problems since the age of 25, and the arthritis affecting her left hip. They submit that her complaints of back and leg pain in 2002 are a continuum of longstanding problems and have nothing to do with the motor vehicle accident. The expert medical reports are flawed because they are based on an incorrect history of back pain and bruising to Mrs Lund’s back following the accident.
Thus, the Trustees submit that the Arbitrator erred in finding Mrs Lund suffered an injury to her back and left leg as a result of the accident.
Mrs Lund’s solicitor points to her evidence, including her oral evidence, that immediately following the accident she was in a complete state of shock and in pain over the whole of her body. Mrs Lund’s evidence is consistent with her employer’s record of 14 December 2001 and her claim form of 19 December 2001. Moreover, the WorkCover certificate issued by Dr Huber dated 20 December 2001, under the heading “Treatment Plan”, refers to “neck/chest/spine/pelvis …”, and his certificate dated 29 January 2002, at question 13, refers to “extensive chest bruising neck and back pain”. Dr Huber was available to give evidence at the hearing but the Trustees did not seek to adduce further evidence from him.
Mrs Lund’s solicitor contends that the worsening of her back pain and the subsequent radiation into her left leg, consistent with the injury having arisen from the accident, is supported by Dr Evan’s supplementary report dated 26 May 2005. Moreover, the nature and extent of Mrs Lund’s treatment following the accident is evidence that the condition is different from any back complaint she may have had in the past, which resolved with infrequent physiotherapy.
Mrs Lund’s solicitor submits the totality of medical evidence accepts that, at the very least, she suffered an injury to her back following the accident. Mrs Lund need only establish that the accident was “a factor” relevant to the end result: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. In conclusion, the Trustees have failed to demonstrate any appellable error in the Arbitrator’s decision, which should be confirmed.
EVIDENCE
The evidence before the Arbitrator included an undated statement by Mrs Lund that accompanied her ‘Application to Resolve a Dispute’, registered by the Commission on 4 March 2005. Mrs Lund stated that when she was taken to Westmead Hospital following the accident, “I was naturally in a state of shock and suffering from severe bruising and a substantial amount of pain. I had pain mostly in my back but also in my chest and neck”. Despite time to recuperate in the school holidays, on resuming work, she found the work “increasingly difficult” and suffered a lot of pain. She stated she has suffered continually from back pain and sciatica ever since.
Mrs Lund also gave oral evidence at the hearing. She said she did not recall whether she made any specific complaint of low back pain while at Westmead Hospital after the accident - her whole body was in pain (arbitration hearing transcript page 5). With regard to her seeing Dr Huber on 18 December 2001, for the first time after the accident, she said she had been told by the Hospital “that they didn’t think there was anything – and it would just be a matter of time”. Her previous experience with back problems was that she “would sometimes rest or sometimes do exercise, sometimes go to the physio or something, et cetera, and it would pass – and I don’t like to make a fuss about things” (arbitration hearing transcript page 8). But the problems persisted and seemed not be getting any better, and when in February 2002 she resumed work, she found she could not manage.
The documentary evidence included documents specifically relating to the accident. An Ambulance Service of NSW report dated 13 December 2001 records:
“Pt c/o’s [patient complains of] pain L side of chest T4/T5 level lateral to the sternal border & some slight neck pain just L of centre. Nil motor or sensory deficits. Nil L.O.C. [loss of control].”
The Westmead Hospital Emergency Department Clinical Record for 13 December 2001 records relevantly that Mrs Lund’s neck and back were non tender but she had sternal tenderness, pain on chest spring, and pain on spring in the pelvis.
A WorkCover Medical Certificate issued by Dr Huber on 20 December 2001, referred to “extensive bruising” and, though partially illegible, appears to have referred to the right shoulder, chest and ribs. Under the heading Treatment Plan, Dr Huber referred to problems with the “neck/chest/spine/pelvis”. A second certificate issued by Dr Huber on 29 January 2002 referred to “extensive chest bruising/neck & back pain”.
Mrs Lund gave evidence that the WorkCover Register of Injuries form dated 14 December 2001, appears to have been completed by her supervisor, Jay Turner. This form described the nature of Mrs Lund’s injuries as “Severe bruising to back, ribs, chest and neck”. Mrs Lund also completed an insurer’s claim form in respect of her injuries dated 19 December 2001, in which she described her injuries as “Severe bruising to chest, back, neck and ribs”.
The medical reports admitted in evidence included reports by Dr Richard Evans, Physician, dated 12 May 2004 and 26 May 2005. In his report dated 12 May 2004, Dr Evans said:
“Mrs Lund first experienced low back pain in 1965 when playing tennis, and had intermittent pain since that time, treated with occasional physiotherapy. There was on [sic – ‘no’] change in her symptoms over the years, and she was, for example, able to go back packing not long before the motor vehicle accident …
The back pain doubtless arises from aggravation of pre-existing occasionally symptomatic degenerative changes in the low back, very likely at the L4/5 level, though there could be a contribution from the mildly unstable L3/4 segment. The left leg pain mostly arises from irritation of the left L5 nerve root at the L4/5 segment of the back.”
In his later report of 26 May 2005, Dr Evans commented on additional reports that had been provided to him and confirmed the assessment in his earlier report. He stated:
“It is not surprising that low back pain occurring following trauma takes some weeks to radiate to a leg; this is a well recognised phenomenon. It would also not be surprising if Mrs Lund “did not become concerned with having treatment for her back condition, until several weeks post accident” (penultimate paragraph in your letter); this is consistent with a worsening of the back pain, something that is also a well recognised phenomenon occurring some time after accidents.”
The medical reports provided by the Trustees included reports from Dr Paul Hitchen, Orthopaedic Surgeon, Dr Peter Youssef, Rheumatologist, and Dr Kim Edwards, Surgeon. There are three reports from Dr Hitchen, dated 9 May 2003, 2 September 2004 and 3 May 2005. He diagnosed “lower lumbar spine degenerative disease and evolving spinal canal stenosis” (report dated 9 May 2003), and stated that Mrs Lund’s accident caused a temporary exacerbation of this condition:
“The soft tissue exacerbation as a result of the motor vehicle accident would have settled within three months of the event. Her persisting symptoms are constitutional in nature and unrelated to the workplace event.”
He also mentioned “mild osteoarthritis of the left hip” (report dated 3 May 2005).
There are also three reports from Dr Youssef, dated 26 June 2003, 4 August 2004 and 5 April 2005. He said Mrs Lund has “long-standing lumbosacral degenerative disease” and degenerative disease of the left hip. The accident caused a temporary aggravation of the former and possibly a temporary aggravation of the latter, both of which have ceased (report dated 26 June 2003). The soft tissue injury caused by the accident “would have settled within three months of the event” (report dated 4 August 2004).
Dr Edwards provided a report dated 19 April 2005. He diagnosed: “Well-established degenerative joint and disc disease is present with a spondylolisthesis” and “moderate osteoarthritic change in her left hip joint”, the latter causing “slight discomfort in her left hip”. He said the accident “may have caused a temporary aggravation of pre-existing degenerative changes in her lumbar spine”, which has ceased.
The documents admitted in evidence also include Dr Huber’s clinical notes and other medical reports referred to in the transcript of the arbitration hearing.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Trustees must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
The Trustees submit the Arbitrator’s finding that Mrs Lund suffered an injury to her back and left leg as a result of the accident is against the weight of evidence. Thus, what is challenged is the Arbitrator’s exercise of his discretionary judgment. As Deputy President Fleming stated in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 38, to succeed on this ground of appeal, “the Appellant must demonstrate that the Arbitrator has failed to exercise her discretion fairly and lawfully”. The Deputy President emphasised at paragraph 40:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
(See also Babylon Property & Cleaning Services Pty Ltd v Hormoz [2005] NSW WCC PD 21, especially at paragraphs 10 to 23.)
I am not persuaded by the Trustees’ submission that there is nothing to connect Mrs Lund’s complaint of back and leg pain with the accident. Mrs Lund offered what the Arbitrator accepted as a credible explanation for her not having complained of back pain immediately after the accident, both in her statement and orally at the arbitration hearing (see above paragraphs 19 to 20), and there is ample other documentary evidence, comprising two WorkCover Medical Certificates issued by Dr Huber dated 20 December 2001 and 29 January 2002, her employer’s Register of Injuries form dated 14 December 2001, and the claim form Mrs Lund completed on 19 December 2001, which all refer to spinal or back problems as a result of the accident.
I am not therefore persuaded by the lack of a specific reference to back problems in the Ambulance Service of NSW report, the Westmead Hospital Emergency Department Clinical Record, and Dr Huber’s clinical notes for 20 December 2001 and 29 January 2002, that Mrs Lund did not suffer back problems as a result of the accident. This is especially so given the two WorkCover Medical Certificates issued by Dr Huber on the same dates do mention back problems, and the Trustees’ specialist reports (see paragraphs 27 to 29 above) that seem, at least, to accept that there is likely to have been a temporary aggravation of Mrs Lund’s pre-existing degenerative condition as a result of the accident.
Thus, I am not satisfied that the Arbitrator erred in finding Mrs Lund suffered an injury to her back and left leg as a result of the accident. However, as the Arbitrator acknowledged, “it may be no more than a mere aggravation of the underlying … condition with the consequence that the AMS may come to the view that there is a very low or nil level of impairment” attributable to the accident (arbitration hearing transcript page 24). In my view, the Arbitrator’s decision to refer Mrs Lund to an Approved Medical Specialist for assessment was appropriate.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, are to pay Mrs Lund’s costs in this appeal as agreed or assessed.
Robin Handley
Acting Deputy President
24 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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