Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Manolis
[2010] NSWWCCPD 59
•28 May 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Manolis [2010] NSWWCCPD 59 | ||||
| APPELLANT: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle | ||||
| RESPONDENT: | Angela Manolis | ||||
| INSURER: | Catholic Church Insurances Limited | ||||
| FILE NUMBER: | A1-8403/09 | ||||
| ARBITRATOR: | Mr R Foggo | ||||
| DATE OF ARBITRATOR’S DECISION: | 18 February 2010 | ||||
| DATE OF APPEAL DECISION: | 28 May 2010 | ||||
| SUBJECT MATTER OF DECISION: | Injury; weight of evidence; substantial contributing factor | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Astridge & Murray | |||
| Respondent: | Slater & Gordon | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 18 February 2010 is confirmed. | ||||
| The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | |||||
BACKGROUND
The respondent worker, Angela Manolis, started work as a foster care caseworker with the appellant employer in May 2008. She alleges that on Tuesday 19 August 2008, she felt a twinge in her lower back when she lifted a bag into the boot of a car in preparation for a trip to Sydney for a work conference. Though she felt some initial discomfort on the trip, the pain dissipated.
Whilst at the conference, Ms Manolis felt a lot of discomfort in her back whilst sitting, and started to get pain down the back of her right knee and calf into her foot. She found it difficult to sit and move. Her pain continued throughout the conference and she sought medical treatment on her return to Newcastle. Initial suspicions of a deep vein thrombosis (‘DVT’) proved unfounded.
A CT scan on 26 August 2008 revealed a prominent right-sided disc bulge at L5/S1. Ms Manolis received conservative treatment until her pain increased in early 2009 and her general practitioner referred her to Dr Spittaler, neurosurgeon, who she saw on 26 March 2009. Dr Spittaler inquired whether Ms Manolis had “considered WorkCover”. He told her that her condition was something that could be a WorkCover claim.
After seeing Dr Spittaler, Ms Manolis advised her employer of the events on 19 August 2008. She underwent a right L5/S1 microdiscectomy on 10 April 2009 and submitted a claim form on 28 April 2009.
The appellant’s insurer disputed liability for the claim in a section 74 notice dated 21 May 2009. Essentially, it disputed that Ms Manolis had received an injury on 19 August 2008 or that her employment had been a substantial contributing factor to any injury. The notice highlighted the fact that Ms Manolis had made no mention of injuring her back whilst lifting luggage until April 2009.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 15 October 2009, Ms Manolis alleged that she injured her lumbar spine and right leg in the following circumstances:
“The applicant sustained injury to her lumbar spine and right lower extremity as a consequence of the nature and conditions of her employment including but not limited to lifting bags into the rear of a vehicle, travelling in a vehicle for an extended period and sitting at a conference on 19 August 2008.”
Ms Manolis claimed weekly compensation for various periods from 24 February 2009 until 18 September 2009.
In a Reply filed on 5 November 2009, the appellant disputed liability on the grounds set out in its section 74 notice dated 21 May 2009.
The Commission listed the matter for conciliation and arbitration on 27 January 2010. Each party was legally represented. The Arbitrator gave leave for Ms Manolis to give brief oral evidence and to be cross-examined.
In a reserved decision delivered on 18 February 2010, the Arbitrator stated that he found the worker’s oral evidence to be convincing and he accepted that she injured her L5/S1disc whilst loading her car on 19 August 2008. He noted that there was no evidence that the “nature and conditions” of the worker’s employment had caused or substantially contributed to the injury.
The Commission issued a Certificate of Determination on 18 February 2010 in the following terms:
“The Commission determines:
1.The Applicant sustained an injury to her lumbar spine in the course of her employment with the Respondent on 19th August 2008 and her employment with the Respondent was a substantial contributing factor.
2.The Respondent is to pay the Applicant weekly payments of compensation as follows:
·From 24.2.09 to 25.2.09 at the rate of $815.81
·From 6.4.09 to 30.5.09 at the rate of $815.81
·From 31.5.09 to 5.6.09 at the rate of $466.18
·From 6.6.09 to 12.6.09 at the rate of $349.63
·From 13.6.09 to 19.6.09 at the rate of $233.09
·From 20.6.09 to 24.8.09 at the rate of $174.82
·From 17.9.09 to 18.9.09 at the rate of $815.81
It would appear, despite the parties’ agreement, that the rate after 24th August 2009, as the Applicant’s Section 36 entitlement had expired, should be the maximum statutory rate. Leave is granted to the parties to correct this aspect of the matter should my assumption be incorrect.
3.The Respondent is to pay the Applicant’s Section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed. I certify this matter as complex in accordance with Item 4 of Table 4 of Schedule 6 of the Workers Compensation Regulation 2003 and that an uplift of 20% applies to each party.”
In an appeal filed on 18 March 2010, the Appellant employer sought 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’).
The monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The appellant employer has not identified any specific grounds of appeal, but has challenged the whole of the Arbitrator’s determination on the ground that he erred in finding that the worker injured her L5/S1 disc whilst loading her car on 19 August 2008. Essentially, the appellant submitted that the worker failed to discharge the onus of proving that her disc protrusion arose out of or in the course of her employment, or that her employment was a substantial contributing factor to such injury.
THE EVIDENCE
Ms Manolis
The worker’s evidence is set out in statements dated 12 May 2009 and 6 October 2009, together with her brief oral evidence at the arbitration.
She started work with the appellant as a part-time foster care caseworker in May 2008. Her duties were predominantly clerical, but she also did home visits and trained prospective foster carers.
In her first statement, she described the circumstances of her injury (at [13]) in the following terms:
“I believe the back condition was sustained on Tuesday 19 August 2009 [sic]. The injury may have been sustained in the morning just prior to leaving my home for Sydney to attend a conference however I did not put two and two together until very recently when I was considered [sic] what could have caused the injury. I do recall clearly that on the morning of 19 August 2009 [sic] prior to placing my bag into a company vehicle that I had no back pain.”
Ms Manolis stated that a work colleague, Craig Davis, arrived at her home at Kotara South at about 6.30 am. She placed one of her bags into the boot of his car and, as she leant forward, she “felt a twinge in the lower back area”. She felt “momentary discomfort”. She then sat in the front passenger seat, still feeling “a little discomfort in the lower back”. She thinks she mentioned something to Mr Davis, but does not know whether he heard her. Mr Davis then drove to Sydney. Whilst Ms Manolis “felt some initial discomfort on the trip”, as she started talking to Mr Davis, the pain “just dissipated”. There had not been a lot of pain at that stage.
Ms Manolis attended the conference at the Darling Harbour Conference Centre between 9.15 am and 5.00 pm on 19 August 2008. In the course of the conference, she felt a lot of discomfort sitting and started getting pain down the back of her right knee, down the calf muscle and into the foot. She found it difficult to sit or move. She also had “a little pain in the lower back (right side)”. She told one of her colleagues that she had pain and discomfort down the back of her right leg. At one stage, she had to get up because of the pain and had trouble walking. She told her work colleagues at lunch that she had pain in her lower back and down her right leg. Her supervisor, Lisa Wollschlager, queried whether she should see a doctor.
Ms Manolis was confident that the pain would pass. She had no idea “what the pain in the lower back and right leg was”. She had never experienced a similar level of pain. She had experienced lower back pain in 2005 that lasted for approximately one week. She wondered if her pain at the conference was “DVT”.
The back and right leg pain continued throughout the balance of the conference and she took pain-relieving medication. A work colleague drove her home on the evening of 20 August 2008. The pain decreased slightly, but increased considerably by Saturday 23 August 2008. By that time, Ms Manolis had pain down the front of her upper thigh, inner thigh area, the calf and down the back of her right leg. As she was concerned about the possibility of a deep vein thrombosis, she attended the emergency department at the John Hunter Hospital. She gave a history of pain commencing at the conference, but does not believe she mentioned the twinge she felt placing her bag into Mr Davis’s car. She “did not associate one with the other”. Investigations did not reveal a deep vein thrombosis.
Ms Manolis later saw her regular general practitioner, Dr Hodgins, but did not tell her about the incident when she lifted her bag into the car. She referred Ms Manolis for a lumbar CT scan on 26 August 2008, which revealed disc bulges with some impingement of the S1 nerve.
Ms Manolis remained at work performing her usual duties, but her pain continued. She had good and bad weeks, but there was some form of pain every day. Towards Christmas 2008, the level of pain increased and became more frequent. She had not considered WorkCover as an option because she was not aware that she could lodge a claim and did not know her rights. She added (at [25]):
“I was not aware of the connection of my rights and whether the injury would be considered a work related injury. I had also not connected the fact that I had twinges when I was putting my bag into the car with the onset of pain in the car while to [sic] travelling to Sydney and then the further onset while seated at the conference.”
Ms Manolis took two weeks annual leave in February 2009. In the second week of her leave, she stepped over something on the floor at her home and felt a sudden sharp pain. She could hardly walk. She remained in bed for a few days, hardly able to move. Her pain subsided and she returned to work on Monday 23 February 2009. At home that evening, she was loading things into the dishwasher when her back “went” on her again.
Ms Manolis again sought medical treatment and was referred to Dr Spittaler, who she saw on 26 March 2009. She did not recall telling him about the twinge she felt when she placed her bag in the boot of the car on 19 August 2008. She added (at [29]):
“I told Dr Spittaler about the onset of pain on 19 August at the conference. I don’t think I told him about the twinge I felt when I turned and put the bag in the boot of the car. Again it was not until more recently that I was racking my brains thinking about the chronology and what could have happened on 19 August that I remembered the twinge when I put the bag in the car. I came to this realisation after I had spoken to Dr Spittaler.”
It was Dr Spittaler who said that it was something that “could be a WorkCover claim”. She said that it was then that she realised she did not know her rights regarding WorkCover and she started to look into it. She had not associated what had happened to her lower back as an injury, but thought it was “onset of pain”.
Ms Manolis completed an “Accident/Incident Report” on 30 March 2009 in which she described the incident as follows:
“Travelled to the conference in Sydney very early on Tuesday 19/8/08 by a vehicle with other staff ([indecipherable] colleagues). Pain and discomfort did not exist at this point in time. Later in the day lower back pain and right leg pain and discomfort developed. I was unable to sit for any length of time and had difficulty walking. This continued overnight and into the 2nd day of the conference. Medical intervention was sought on return home, a few days after the conference when the pain and discomfort continued.”
Susan Bryant, one of the appellant’s managers, who also completed a “Register of Injuries” on the same day, signed the Accident/Incident Report.
In the Register of Injuries, the injury was described as having been sustained as follows:
“Sitting at a conference in Sydney – developed lower back pain and pain in right leg – discomfort sitting and walking.”
Under “additional comments”, Ms Bryant added:
“2 day conference – no pain prior to conference or morning of travel and attendance. Pain & discomfort continued. Medical intervention sought a few days on return from the conference.”
The employer’s “Notice of Injury Form”, signed by Marisa Minehan, described the injury as having happened as follows:
“Sitting at work conference in Sydney on 19/8/08, developed back pain. No frank incident.”
The worker’s claim form, completed on 28 April 2009, described the injury as having occurred as follows:
“Not sure if related – however, felt a twinge in my lower back and saw discomfort/pain when loading the car with my luggage for a trip to Sydney and overnight stay to attend a conference (2 days) – pain subsided during trip. Later that day whilst sitting had pain and discomfort in back and (R) leg. Difficulty walking.”
The claim form also disclosed that Ms Manolis had developed low back pain and right sciatica after moving a chair at work in 2005. A CT scan at that time showed small disc bulges with no evidence of focal nerve root compression. The symptoms settled within a few weeks.
At the arbitration, Ms Manolis gave evidence that, having seen a statement from Mr Davis, she realised that her assertion that Mr Davis picked her up from her home was incorrect. She agreed with his evidence that in fact he picked her up at the appellant’s office. She maintained, however, that she loaded bags into the boot of his car and that she felt a twinge in her back as she did so.
Craig Davis
Mr Davis gave a statement on 12 May 2009. He met Ms Manolis at the appellant’s office between 6.00 am and 6.30 am on the morning of 19 August 2008. He did not recall who placed Ms Manolis’s bags into the boot of his car. Ms Manolis made no complaint of low back pain in the course of the trip to Sydney. He does recall, however, that she complained of having lower back pain on 19 or 20 August 2008. He noticed that her mobility was “not good” in that she was “physically uncomfortable and slower than usual”. He recalled her walking slower and appearing uncomfortable at dinner on the evening of 19 August 2008.
In the weeks and months after August 2008, Mr Davis noticed that the worker’s complaints of lower back pain became more noticeable. He observed that her movements became “noticeably worse”.
Lisa Wollschlager
Ms Wollschlager, the worker’s immediate supervisor, also provided a statement on 12 May 2009. Ms Wollschlager also attended at the conference on 19 and 20 August 2008. She recalled the worker saying on the first day of the conference that her leg was sore. It looked like it was hard for her to walk and it was obvious to Ms Wollschlager that her leg was hurting and she did not appear to be her “normal self”.
Though Ms Wollschlager discussed with the worker what may have caused her pain, the worker did not indicate that there had been a specific event. The worker speculated that she thought it could have been from sitting in the car. At another point during the conference, Ms Wollschlager noticed that it was hard for the worker to pick up her bag and that Mr Davis carried it for her.
From the time of the conference onwards, the worker continually had a back problem and her condition progressively worsened.
Susan Bryant
Ms Bryant was a manager at the appellant’s New Lambton office. She confirmed the worker’s evidence that her specialist had suggested that she apply for workers compensation. The worker expressed surprise that the doctor had mentioned workers compensation, as that had never been a consideration. When Ms Bryant asked the worker if there had been an incident that caused her back condition, she responded by saying that there had been a time in 2008 when she attended a conference in Sydney and at the end of the day she got up from her seat and was in significant pain. The worker believed that her condition had been caused by sitting all day.
Medical evidence
Ms Manolis presented to the John Hunter Hospital on 23 August 2008 complaining of a dull aching pain and “stiffness” in her lower right leg, “graduating” behind the knee. She was unable to fully weight-bear because of the pain. Tests conducted on 25 August 2008 by Dr Hackworthy, cardiologist, ruled out deep vein thrombosis. Dr Hackworthy recorded a history of “three weeks of crampy right calf and thigh pain”.
The lumbar CT scan of 26 August 2008 revealed a broad-based disc bulge at L4/5 and a prominent right-sided disc bulge extending into the lateral recess and exit foramen at L5/S1. The radiologist stated that he could not completely exclude that the bulge was compromising the right S1 nerve. There was a minor impression on the thecal sac.
Dr Spittaler reported on 26 March 2009 that Ms Manolis recalled being at a conference for work and sitting for long periods and noticed pain from the buttock into her leg. The pain settled to an extent but “grumbled along until February when it increased markedly”. The CT scan of the lumbar spine from August 2008 suggested a small right L5/S1 disc bulge. He referred Ms Manolis for an MRI scan.
Ms Manolis again presented to John Hunter Hospital on 5 April 2009 with a history of severe back and right leg pain, and associated “back of leg numbness”. The emergency department triage notes recorded “prolapsed L4/L5 disc → CT scan August 08”. An MRI scan on 6 April 2009 revealed an extremely large central and right-sided disc protrusion at the L5/S1 level with complete compression of the L5 and S1 nerve roots on the right. The hospital notes added “has chronic back/leg pain which ‘comes & goes’. Sometimes ++ severe”. The notes for 6 April 2009 recorded “back/(R) leg pain last few months. Exacerbation of pain”.
On 10 April 2009, Ms Manolis underwent a right L5/S1 microdiscectomy at the John Hunter Hospital and was discharged on 14 April 2009.
Dr Hodgins reported to the appellant’s insurer on 11 May 2009. She noted that the worker had experienced some right sciatica during and after pregnancy in 1992, low back pain in 2003, and low back pain with right sciatica in 2005. A CT scan in 2005 demonstrated small disc bulges at L4/5 and L5/S1 with mild developmental lumbar canal stenosis, but with no definite evidence of focal nerve root compression. Those symptoms settled with minimal intervention.
In respect of the current claim, Dr Hodgins recorded in her report of 11 May 2009 that she saw the worker on 26 August 2008. She took a history that, after driving to Sydney for work purposes, Ms Manolis experienced back and right leg pain whilst seated at a work-related conference. At review on 2 September 2008, there had been some improvement in the worker’s leg pain. However, on 7 October 2008, the worker described “bad leg pain” after prolonged walking. On 25 November 2008, the worker complained of cramps in her feet and back. On 24 February 2009, Ms Manolis presented with worsening low backache and was referred to Dr Spittaler.
Dr Hodgins stated that she considered the worker’s condition to be “consistent with the history given” and that she had “not suffered an aggravation of the condition”.
On the question of causation, the doctor added:
“The relationship between work and the worker’s condition appears to be essentially one of timing. Mrs Manolis is unable to describe any work-related ‘incident’ but is certain that the onset of her condition occurred in a workplace setting.”
Dr Hodgins also issued several WorkCover medical certificates, the initial certificate being issued on 31 March 2009. All of the certificates answered the question of whether the worker’s employment was a substantial contributing factor to the injury by saying “unclear, but thought likely by her treating neurosurgeon”.
At the request of her solicitors, Dr Bracken examined Ms Manolis on 29 July 2009. In his report of the same date, Dr Bracken recorded that Ms Manolis had minor recurrent backaches prior to August 2008, but she had lost no time off work and had no treatment. She had surgery to her neck in March 2007 because of a disc problem and made a good recovery.
Dr Bracken took a history that, on 19 August 2008, Ms Manolis put some luggage into the boot of a car prior to driving to Sydney for a conference when she felt “some twinges in her low back”. These only lasted for a short period and then settled. She had no trouble until later in the day, after prolonged sitting at the conference, when she developed pain in her low back and right leg. The right leg pain involved her buttock, thigh, calf and foot. She walked with a limp and had difficulty sitting. After several days, the pain increased and she attended John Hunter Hospital, where she was investigated for possible deep vein thrombosis. She also saw her local doctor, who referred her for a CT scan. As time went by, the pain increased, especially in the right leg. In early 2009, the pain caused her to stay in bed for several days. She was then referred to Dr Spittaler, who arranged for an MRI scan and, ultimately, surgery.
On the question of causation, Dr Bracken concluded that:
“In my opinion there is no doubt that this woman suffered an acute disc prolapse as a result of activities on 19 August 2008. Her history is consistent with a disc prolapse that was found and dealt with surgically.”
Dr Bracken prepared a supplementary report on 22 January 2010 in which he responded to additional information about the worker’s previous back symptoms. That information included a history that she had back symptoms with sciatica as early as 1992, while pregnant, and similar symptoms for which she sought treatment from her general practitioner in 2003 and 2005. He stated that the earlier episodes of back pain were “quite consistent with her statement that she had had minor episodes of back pain previously”. Back and leg pain during pregnancy were “common enough” and normally settled soon after delivery. It was Dr Bracken’s opinion that the confirmed disc protrusion occurred “as a result of putting luggage in the boot of a car on 19 August 2008 and her problems thereafter relate to that disc protrusion”. He remained of the opinion expressed in his first report.
The insurer qualified Dr Watson, orthopaedic surgeon, to examine Ms Manolis on 13 May 2009. In his report of 15 May 2009, Dr Watson took the following history:
“On 18/09/2008 [sic], she [Ms Manolis] was going to a conference with two other individuals to Sydney. It would appear that she was placing a bag in a car when she experienced a twisting incident and a twinge in her lower back. She felt uncomfortable. She also had pain in her right calf associated with the back pain and she had difficulty sitting.
When she went to the conference, she was in constant pain and discomfort and the pain continued in the lower back and down the right leg. She stayed at the conference and when she returned home on a Saturday, she still had significant pain with pain down the right leg.”
Dr Watson also recorded that the pain continued and that Ms Manolis developed severe pain in her lower back and right leg when she was at home in the early part of 2009. She underwent surgery on 10 April 2009 at the John Hunter Hospital. Dr Watson took no history of Ms Manolis experiencing any prior back pathology. He concluded that employment was a substantial contributing factor to the injury.
THE ARBITRATOR’S REASONS
In a Statement of Reasons for Decision (‘Reasons’) delivered on 18 February 2010, the Arbitrator identified the issue in dispute to be whether Ms Manolis suffered an injury on 19 August 2008 within the meaning of section 4 of the 1987 Act and whether her employment was a substantial contributing factor to that injury.
The Arbitrator first considered whether the worker’s employment had been a substantial contributing factor to her injury. This question would normally be considered second, because, if there is no injury, the question of whether employment was a substantial contributing factor does not arise. Nevertheless, he determined that “merely sitting for an extended period at a conference could not be a ‘substantial contributing factor’ to an L5/S1 disc bulge which was demonstrated by the CT scan of 26 August 2008” (Reasons at [15]).
He stated that there was no expert evidence before him that the injury could have been the result of sitting at the conference. Nor was there any expert or lay evidence that the “nature and conditions of the applicant’s employment with the respondent” was the cause or substantial cause of the injury. Accordingly, unless the worker could establish that she suffered an injury in the course of her employment with the appellant on 19 August 2008, she could not succeed (Reasons at [17]).
The Arbitrator then made the following findings:
(a)the first note of the connection between the injury and employment was Dr Hodgins’ WorkCover certificate of 31 March 2009;
(b)the worker did not notify the appellant of any injury until 1 April 2009;
(c)his evaluation of the worker’s evidence was that “it was compelling” (Reasons at [21]);
(d)the worker conceded that Mr Davis was correct in his recollection that the transfer of her bags did not happen at her house, but at the office. She denied that she had not loaded her bags into the car;
(e)there was nothing sinister about the fact that the worker did not connect her symptoms with her employment until after she saw Dr Spittaler;
(f)the worker’s oral evidence was convincing and he accepted her explanation “as to how she came to make a claim in late circumstances also to be convincing, credible and to conform with the events – in particular to Dr Hodgins’ comments in the medical certificate of 31 March 2009” (Reasons at [29]);
(g)the worker first became aware of a possible connection between her back condition and a work incident on 19 August 2008 at her consultation with Dr Spittaler on 26 March 2009 and she “quite promptly then obtained a WorkCover certificate and lodged a claim” (Reasons at [30]);
(h)though there was a delay in making the claim, the worker had satisfied him as to the circumstances of the delay and why it was that her recollection of the incident and its connection to work “took something in the order of 6 months to eventuate” (Reasons at [31]);
(i)accordingly, he felt “an actual persuasion that the applicant’s recollection that she suffered a twinge and thereby an injury to her back whilst loading the car have caused the applicant’s L5/S1 disc injury” (Reasons at [31]);
(j)the report of Dr Watson could not be relied upon because of its inaccurate history. That left the only specialist medicolegal report in evidence to be that of Dr Bracken, who accepted that the disc prolapse resulted from the activities on 19 August 2009 [sic, 19 August 2008], and
(k)this was a straightforward case of employment being a substantial contributing factor, as the injury was caused when the worker put her bags into the back of a vehicle immediately prior to travelling to Sydney for a conference (Reasons at [42]).
SUBMISSIONS, DISCUSSION AND FINDINGS
The appellant submitted that this was a case where “the reporting of injury, and the evolving description of the mechanism of injury, is so far removed from the alleged date and allegations of injury that the Commission could not be satisfied that the respondent [worker] has discharged her onus of proving that there is any causal link between any work injury alleged to have occurred on or about 19 August 2008 and the [respondent worker’s] lower back condition; ie the L5/S1 disc protrusion”.
The appellant has referred to and relied upon the chronology set out earlier in this decision as demonstrating a lack of complaint of any “frank injury or lifting” until many months after the alleged incident.
The appellant also made submissions about certain documents said to have been produced by “Tinana [sic, Tynan] Performance Physio”. At a teleconference on 25 May 2010, I advised the parties that these notes were not in the Commission’s file and had not been tendered at the arbitration. I gave the appellant until 4.00 pm on 25 May 2010 to make any application to rely upon them as additional evidence on appeal under section 352(6) of the 1998 Act.
The appellant filed an application for leave to rely on the clinical notes from Tynan Performance Physio as additional evidence. It submitted that the evidence was credible and was of significance because an entry on 23 April 2009 referred to “what appears to be a significant non-work related low back injury/condition occurring in February 2009”. There is also a reference to “1 yr ago @ conference, sat for a long time, worsened after Feb ‘09 – serious LBP episode”. The notes did not refer to any lifting incident in August 2008. It submitted that the notes were not admitted at the arbitration due to an oversight and that it was just that they be admitted on appeal because they touch on a significant issue and there was no prejudice to Ms Manolis.
An oversight by a legal adviser is not normally a proper ground for the admission of additional evidence on appeal. However, as there is no prejudice to Ms Manolis, I propose, with considerable reluctance, to admit the notes into evidence. Practitioners are reminded that all relevant evidence must normally be tendered at the arbitration hearing and it is only in exceptional circumstances that additional evidence will be admitted on appeal.
The appellant also placed reliance on an “injury management initial contact outcome file note”, which recorded the cause of injury as “sitting at work conference in Aug 2008. Does not know if its from degenerative changes”. Though the file note is not in evidence, QBE referred to it in its section 74 notice and I have had regard to it.
It was submitted that Dr Hodgins’ report of 11 May 2009 did not accord with the doctor’s clinical records “regarding contemporaneous reporting of any back injury”.
It was also asserted that the worker provided a history of a “non work-related injury to her back sustained at home in February 2009”. This could be married, so it was argued, with the entry from the physiotherapist’s records that referred to symptoms worsening after February 2009.
It was argued that Dr Bracken’s opinion was compromised and “of little weight” because he “did not have the evidence which is before the Commission and referred to in this appeal”. The appellant submitted that:
“The Arbitrator has, essentially, believed the [respondent worker’s] version of lifting, against the weight of all the evidence… and the implausibility of such an incident which was neither reported at the time, nor likely to have caused a significant L5/S1 disc protrusion at the time; some 7-8 months prior to any reporting of same.”
It was further submitted that the worker’s brief evidence at the arbitration “could not found the entire case” for the worker on acceptance of her as a credible witness. Reliance was placed on the decisions of Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62 (‘Brasz’), Gorge v Paramount Global Protection Pty Limited [2009] NSWWCCPD 67 (‘Gorge’), and Ecowize North Pty Ltd v Weir [2009] NSWWCCPD 119 (‘Weir’) as “similar cases where causation was in issue in circumstances where there was [a] delay between an alleged injury and the reporting of symptoms”.
The appellant has submitted that the Arbitrator erred in concluding that the objective evidence did not support the employer’s submission that the incident at home in February 2009 provided a more convincing explanation of the disc prolapse.
If the appellant was unsuccessful on the issue of injury, it submitted that the worker has failed to establish that her employment was a substantial contributing factor to her L5/S1 disc protrusion. It was argued that the delay in reporting, the different versions of the alleged incident, the clinical records of Dr Hodgins noting the prior back complaints at the same level, the physiotherapist’s records, and the worker’s own evidence about her non-work-related back injury at home in February 2009, all indicated that the worker had failed to prove that employment on or about 19 August 2008 was a substantial contributing factor to the L5/S1 disc protrusion.
In conclusion, the appellant submitted that the allegation of injury due to the “nature and conditions of employment” and due to “travelling in a vehicle” has not been made out.
I do not accept the appellant’s submissions.
In light of the authorities of Tan v National Australia Bank Ltd [2008] NSWCA 198; (2008) 6 DDCR 363 (‘Tan’) and Sapina v Coles Myer Limited [2009] NSWCA 31; (2009) 7 DDCR 54 (‘Sapina’), and given that I did not see or hear Ms Manolis 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 [2003] HCA 22; 214 CLR 118, the majority observed (at [28]) that “[i]n 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]) “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.”
Ms Manolis has consistently conceded that she did not mention the incident on 19 August 2008 for some months because she “did not put two and two together” until she considered what could have caused her injury. That did not occur until she spoke to Dr Spittaler on 26 March 2009. Rather than undermining her case, the worker’s frank admission has, if anything, enhanced her credibility. Her evidence has adequately explained why she did not mention the lifting incident until April 2009. I accept that explanation, as did the Arbitrator.
The worker’s credit was further enhanced by her concession that, having seen Mr Davis’s statement, she was mistaken as to where she lifted her bag into his car. Having heard and seen Ms Manolis give oral evidence, the Arbitrator formed the view that her evidence was “compelling” (Reasons at [21]) and “convincing” (Reasons at [29]). Having reviewed the evidence and the parties’ submissions, both at the arbitration and on appeal, I have reached the same conclusion. Far from the Arbitrator’s conclusion being inconsistent with incontrovertible facts, or being glaringly improbable, I believe it is consistent with the objective evidence and is correct. It follows that, independent of the Arbitrator’s credit finding, I accept that Ms Manolis felt symptoms in her back when she lifted her bag into Mr Davis’s car on 19 August 2008.
None of the documents referred to by the appellant is determinative of whether Ms Manolis injured her back when she lifted a bag into Mr Davis’s car on 19 August 2008. It is true that the first WorkCover certificate from Dr Hodgins did not refer to a “frank injury”. However, in answer to the question of whether “employment was a substantial contributing factor to this injury”, the doctor’s answer was that it was “unclear, but thought likely by her treating neurosurgeon”. The answer did not reject a connection between the employment and the pathology, but merely expressed uncertainty.
I do not accept that Dr Hodgins’ report of 11 May 2009 is inconsistent with her clinical notes. The report is consistent with the notes in that it recorded that Ms Manolis did not mention the lifting incident at the early attendances. That is not determinative and does not defeat the claim.
The submission that Ms Manolis completed the notice of injury form is incorrect. It appears that Marisa Minehan completed and signed that form. I infer, however, that Ms Manolis provided the information in it. That is not, however, critical. The worker has conceded that she did not link her back condition with the lifting incident for some time.
The fact that Ms Manolis expressed uncertainty in her claim form about the connection between the lifting incident and her back symptoms is not a matter that weakens her case or strengthens the appellant’s case. She is not a doctor. Questions of nexus always involve difficult questions of fact that turn on a careful analysis of the expert and lay evidence. The worker’s uncertainty has merely highlighted her honesty and provided another reason why I accept her evidence.
Given that I accept that Ms Manolis felt a twinge in her back when she lifted her bag into Mr Davis’s car, and given that it is not disputed that Ms Manolis felt significant back and leg symptoms at the conference on 19 August 2008, the question is whether her injury was caused by the lifting incident. This question is largely, though not exclusively, a medical question.
Armed with an accurate history of the onset of the worker’s symptoms, Dr Bracken concluded that the injury occurred as a result of putting luggage into the boot of a car on 19 August 2008. That conclusion was consistent with the onset of leg symptoms at the conference on 19 August 2008, the objectively established facts (the presence of disc bulging with nerve compression in CT scan on 26 August 2008) and the apparent logic of the events on and after 19 August 2008. Based on the evidence from Dr Bracken and Ms Manolis, I am comfortably satisfied that Ms Manolis received an injury to her L5/S1 disc when she lifted a bag into a car while preparing for her trip to Sydney to attend a work conference on 19 August 2008.
I do not accept the appellant’s submission that Dr Bracken’s opinions are “compromised and of little weight” because he did not have the evidence that is before the Commission. As I have explained, the evidence of a lack of complaint of the lifting incident until April 2009 is not determinative. I am comfortably satisfied that Dr Bracken’s history provided a fair climate for the acceptance of his conclusions (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] NSWLR 505 at 509-510). The alternative is that the worker’s symptoms developed spontaneously while sitting at the conference. Though that was possible, and Dr Hodgins thought it was “consistent” with the history she took (see [52] and [53] above), I prefer the evidence of Dr Bracken on causation.
Because of inaccuracies in Dr Watson’s history, which Ms Manolis highlighted in evidence that was against her interests, the Arbitrator did not place any weight on his opinion in his report of 15 May 2009. Similarly, I place no weight on Dr Watson’s report.
The appellant also argued that the worker had a non-work-related injury to her back at home in February 2009, which can be “married” with the entry in the physiotherapist’s note of a worsening of pain after February 2009 and explains the onset of complaints from March 2009. This submission overlooks the clear evidence of a consistent complaint of back and leg symptoms since 19 August 2008 and the significant findings in the CT scan on 26 August 2008. The alleged “injury” at home was no more than the worker stepping over some linen (perhaps tea towels). That incident was not inconsistent with the worker having received a low back injury on 19 August 2008. There is no persuasive evidence that that incident, as opposed to the lifting incident on 19 August, was responsible for the injury. I do not consider it significant that the physiotherapist had no note of the August 2008 lifting incident. As explained in her claim form, Ms Manolis was not sure of the cause of her problem.
There is no similarity between the facts in the present matter and the matters of Brasz, Gorge and Weir. Unlike those cases, the development of back and leg symptoms by Ms Manolis so close in time to the lifting incident, together with the evidence in the 26 August 2008 CT scan, makes the conclusion that the lifting incident caused the injury credible and compelling.
The appellant’s submissions on section 9A ignore the fact that employment only has to be a substantial contributing factor to the injury not the substantial contributing factor. All of the matters referred to by the appellant on this issue go to whether the worker’s evidence should be accepted as to the occurrence of the lifting incident on 19 August 2008. I have already indicated that I accept her evidence that the lifting incident occurred and that I accept Dr Bracken’s evidence that that incident caused a low back disc protrusion. These findings establish that employment was a substantial contributing factor to the injury and probably the substantial contributing factor.
CONCLUSION
Having conducted a review on the merits (The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286), I have concluded that the true and correct decision is that Ms Manolis injured her L5/S1 disc while lifting a bag into a car in the course of her employment on 19 August 2008.
Though the Arbitrator expressed uncertainty about whether the first 26 weeks of incapacity had expired (see [11] above), he made the orders sought in the Application and those orders are confirmed. As confirmed by the parties at the teleconference on 25 May 2010, I note that, as at 24 August 2009, the first 26 weeks of compensation had not expired.
DECISION
The Arbitrator’s determination of 18 February 2010 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
28 May 2010
I, MELANIE CURTIN, 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
0
8
0