Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart
[2021] NSWPICPD 5
•8 April 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart [2021] NSWPICPD 5 |
| APPELLANT: | Trustees of the Roman Catholic Church for the Diocese of Parramatta |
| RESPONDENT: | Robert Stewart |
| INSURER: | Catholic Church Insurances Ltd |
| FILE NUMBER: | A1-2904/20 |
| MEMBER: | Ms E Beilby |
| DATE OF MEMBER’S DECISION: | 22 September 2020 |
| DATE OF APPEAL DECISION: | 8 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – finding of ‘injury’ pursuant to section 4(b)(ii) of the Workers Compensation Act 1987, requirement of ‘main contributing factor’ |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr T Murray, solicitor | |
| Astridge & Murray Solicitors | |
| Respondent: | |
| Mr Andrew Parker, counsel | |
| Nikolovski Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 22 September 2020 is revoked. 3. The matter is remitted to a different member for re-determination. |
INTRODUCTION AND BACKGROUND
Robert Stewart (the respondent) was employed by the Trustees of the Roman Catholic Church for the Diocese of Parramatta (the appellant) from about 1997. He performed maintenance and cleaning work at various schools in the general vicinity of Parramatta. His duties included gardening, ground maintenance, garbage collection, general labouring work and cleaning. He sometimes moved furniture, including up and down stairs. The duties he described were relatively strenuous.[1] He said there was a lot of bending and heavy lifting. He stated that the work he performed over 20 years “placed a “large amount of strain” on his back.[2]
[1] Respondent’s statement 18.5.20, Application to Resolve a Dispute (ARD), p 1.
[2] ARD, p 3.
The respondent injured his back in an incident on 2 March 2018 at St Margaret Mary’s School, while collecting rubbish in the playground. He was off work until early April 2018, when he resumed on light duties which were eventually upgraded to full duties. He suffered further injury on 31 May 2018 whilst using a shovel, mattock and crowbar to dig out a stump, experiencing further back pain and pain down his left leg.[3] He did not resume work thereafter. He underwent surgery involving left L3/4 and L4/5 microdiscectomy, performed by Dr Jaeger, neurosurgeon, on 1 November 2018.[4] The appellant voluntarily accepted liability for weekly payments and treatment costs.
[3] ARD, p 4.
[4] ARD, p 66.
The respondent’s solicitors arranged for him to be assessed by Dr Bodel, an orthopaedic surgeon, who reported on 28 October 2019, assessing 16 per cent whole person impairment in respect of injury to the lumbar spine.[5] A claim on this basis, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), was made on 4 December 2019.[6] The appellant obtained multiple reports from Dr Davies, a neurosurgeon who it qualified. It arranged for the respondent to be assessed by Dr Davies to comment on matters including the s 66 claim. Dr Davies reported on 12 February 2020. He assessed 13 per cent whole person impairment, which he reduced to 12 per cent after making a deduction for pre-existing degenerative change pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[7] The appellant’s solicitors made an offer on the basis of this assessment of 12 per cent, whilst at the same time stating that, should the respondent wish to proceed to the Commission, the appellant reserved its right “to dispute any allegation of injury due to the nature and conditions of employment”.[8]
[5] ARD, pp 33–39.
[6] ARD, p 30.
[7] Reply, pp 25–31.
[8] Reply, pp 49–50.
The respondent instituted the current proceedings by way of the ARD dated 26 May 2020. The “Injury Description” relied on was “lumbar spine injury due to the nature and conditions of his employment with the [appellant] over time and also two specific incidents which occurred on 2 March 2018 and 31 May 2018”. The pleaded claim related to 16 per cent whole person impairment.[9] The appellant’s Reply asserted “[t]he nature and extent and pathology of any alleged injury is inconsistent and in dispute with reliance placed on Section 4” of the 1987 Act. In respect of any allegation based on the nature and conditions of employment, the appellant denied ‘injury’ (both injury simpliciter and on the basis of the ‘disease’ provisions), ‘main contributing factor’ and whether s 9A was satisfied.[10]
[9] ARD, p 7.
[10] Reply, p 2.
The matter proceeded to an arbitration hearing on 12 August 2020. Mr A Parker appeared for the respondent and Mr D Saul for the appellant. No oral evidence was called. Counsel dealt with admission of the documents that were before the Member, both counsel addressed, and the Member reserved her decision. The ‘injury’ issue was succinctly summarised by the appellant’s counsel:
“… there are three injuries that the [respondent] is alleging have occur[ed] during the course of his employment. We don’t object to two but we object to the third which is generally characterised as nature and conditions.”[11]
[11] Transcript of arbitration hearing 12.8.20 (T), T 5.21–24.
The Commission issued a Certificate of Determination dated 22 September 2020, accompanied by eight pages of reasons.[12] The Member found, in respect of the disputed ‘injury’ allegation, that the respondent “sustained an injury to his lumbar spine arising from the nature and conditions of employment with the [appellant]”. The matter was referred to an Approved Medical Specialist (AMS) to assess “whole person impairment in relation to the nature and conditions of employment, an injury on 2 March 2018 and a further injury on 31 May 2018”.
[12] Stewart v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWWCC 335 (the reasons).
TRANSITIONAL MATTERS
After the current appeal was lodged, the Workers Compensation Commission was abolished.[13] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[14] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
[13] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[14] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 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.”
Both parties submit the appeal can be decided on the basis of the written material; neither seeks an oral hearing. Having regard to Procedural Directions PIC2 and WC3, 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act is met. There is an issue regarding whether the monetary thresholds in s 352(3) are satisfied.
Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The appellant submits the sum at issue is the amount claimed of $38,560 in respect of 16 per cent whole person impairment resulting from injuries to the lumbar spine. The claim was in respect of a single impairment which was not apportioned between each injury. What part of the impairment may be apportioned to the ‘nature and conditions’ injury is unknown. The appellant submits the threshold is met by reference to the amount of compensation claimed.[15]
[15] Appellant’s submissions, [6]–[9], appellant’s submissions in reply, [2]–[4].
The respondent submits the only injury in dispute was that involving the ‘nature and conditions’ allegation. This went only to the deduction pursuant to s 323 of the 1998 Act. Such a deduction is not compensation. Even if it were, the two per cent deduction assessed by Dr Davies would not exceed $5,000. It submits the threshold is not satisfied.
I do not accept the submission that the allegation of injury due to the ‘nature and conditions’ of employment goes only to the s 323 deduction, which is not compensation. It is part of the injury allegation in respect of which lump sum compensation is claimed. In Fine Meats (Boners PM) Pty Ltd v Hart, Roche DP dealt with satisfaction of the monetary threshold in circumstances where no compensation was awarded at first instance:
“As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Mr Hart claimed lump sum compensation totalling $32,250.00. Therefore, the quantum of compensation ‘at issue’ on appeal exceeds the $5,000.00 threshold in section 352(2)(a). As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).”[16]
[16] [2007] NSWWCCPD 164 (Hart), [17].
As the appellant submits, the quantum of compensation that may be assessed as resulting from the ‘nature and conditions’ injury is an unknown. The approach adopted in Hart is appropriate. Having regard to the amount claimed, the monetary threshold is satisfied.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[17] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[18] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[19]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c) It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[20]
[17] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[18] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[19] [1996] HCA 140; 140 ALR 227.
[20] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[21] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[22]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[23]
[21] [2017] NSWWCCPD 5, [67].
[22] [2001] FCA 1833, [28].
[23] Raulston, [20].
In Northern New South Wales Local Health Network v Heggie,[24] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[25]
[24] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[25] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[26] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[27]
[26] [2020] NSWCA 54 (Hill).
[27] Hill, [20].
THE MEMBER’S REASONS
The Member summarised the lay evidence dealing with the physical nature of the respondent’s duties and the occurrence of the incidents on 2 March 2018 and 31 May 2018. She referred briefly to the respondent’s treatment, including the lumbar surgery performed on 1 November 2018. [28] She noted there was “no issue” regarding the occurrence of the two “frank injuries”, which had “contributed to his lumbar condition”. She described the issue in dispute:
“What is the role of the nature and conditions of employment in relation to the [respondent’s] lumbar condition (if any)?”[29]
[28] Reasons, [1]–[11].
[29] Reasons, [12]–[13].
The Member referred to Dr Bodel’s report dated 7 July 2020. She noted that the letter of instruction to the doctor included the respondent’s statement and the reports of Dr Davies. She quoted from Dr Bodel’s opinion on causation:
“The nature and conditions of his work as a general assistant for more than 20 years with the Catholic Education Office, in my view, has caused aggravation, acceleration, exacerbation and deterioration of that disease process over time, particularly in association with the episodes of injury that were described in my report.
The second episode where he was ‘using a mattock, shovel and a crowbar’ has caused significant aggravation, acceleration, exacerbation and deterioration of that disease process into the increasing symptoms in that area associated with the work injury.”
The Member said: “Quite clearly Dr Bodel holds the opinion that the nature and conditions of employment have had a role in the acceleration or aggravation of a disease process in the lumbar spine.”[30]
[30] Reasons, [20]–[22].
The Member referred to the reports of Dr Jaeger. She said that Dr Jaeger did not describe a history of pre-existing back pain before the incident on 2 March 2018, gave no consideration to the nature and conditions of employment, and did “not provide an opinion on this discrete issue”. The Member said “Dr Jaeger cannot assist in any significant [way] in this determination”.[31]
[31] Reasons, [23]–[24].
The Member referred to Dr Davies’ reports. Dr Davies had a history of the physical duties performed by the respondent and of “twinges in his lower back with heavy activities over the years”, but without time off or ongoing symptoms. The doctor had a history of the two frank incidents. The Member referred to the various expressions of opinion by Dr Davies, in his multiple reports, on causation. Dr Davies considered “the general nature and conditions of employment has made some contribution to the development of the condition by way of an exacerbation of a pre-existing condition”. Dr Davies said the “main contributing event to the [respondent’s] condition was the event on 31 May 2018”.[32]
[32] Reasons, [25]–[33].
The Member referred to an attack by the appellant on the probative value of Dr Bodel’s opinion, on the basis that the doctor did not address the respondent’s statement or his duties at work in sufficient detail. The Member said that Dr Bodel had the respondent’s statement when he prepared his final report and understood that the respondent’s work included “general labouring, lawn maintenance and general maintenance activities as well as garbage collection”. The Member said there was a history of previous sciatica in the general practitioner’s notes, consistent with Dr Davies’ recorded history of twinges of pain in the low back over the years relating to heavy activities at work.[33]
[33] Reasons, [34]–[38].
The Member referred to decisions in RSL (QLD) War Veterans’ Homes Ltd v Watkins[34] and Arquero v Shannons Anti-Corrosion Engineers Pty Ltd[35] which were referred to by the respondent in his submissions. She referred to the appellant’s reliance on Rail Services Australia v Dimovski.[36] The appellant submitted that, in the current matter, there was a frank injury on 31 May 2018 that caused the aggravation of the underlying condition. The Member said that in this case “the pathology, which supports a disease process in part, was not initiated by the frank incident but the nature and conditions of employment”.[37]
[34] [2013] NSWWCCPD 44 (Watkins).
[35] [2019] NSWWCCPD 3 (Arquero).
[36] [2004] NSWCA 267.
[37] Reasons, [39]–[42].
The Member said that the 31 May 2018 incident may be the main contributing factor to the permanent impairment, but that was not the issue. The question was whether the employment contributed to the condition by way of an exacerbation. The respondent’s duties could “only be described as ‘heavy’”, the appellant put on no evidence to traverse what the respondent said about the duties. The Member accepted the respondent’s evidence about “the nature of his duties”. She accepted there was pre-existing symptomatology having regard to the history of pre-existing sciatic pain and Dr Davies’ history of “ongoing twinges over the years”. She accepted that an ‘injury’ could fall under both s 4(a) and s 4(b) of the 1987 Act.[38]
[38] Reasons, [44]–[46].
The Member accepted that Dr Bodel’s opinion was prepared “in a fair climate”. The doctor referred to being in receipt of the respondent’s statement, although he did not refer to the statement in detail. She said she could not criticise the opinion of Dr Bodel. His history indicated an understanding of the respondent’s duties, which included general labouring, lawn maintenance, general maintenance activities and garbage collection. The doctor was entitled to rely on his expert knowledge and skill. The Member accepted Dr Bodel as “credible and reliable”. She said the opinion of Dr Bodel was not inconsistent with the opinion of Dr Davies, both found a contribution from the nature and conditions of employment but placed greater weight on the last frank incident. Although the history of pre-existing back pain was minimal, this was not fatal.[39]
[39] Reasons, [47]–[49].
The Member concluded that she was actually persuaded to the required standard that the respondent had sustained injury arising from the nature and conditions of employment. The referral to an AMS should include assessment in respect of injury arising from the nature and conditions of employment.[40]
[40] Reasons, [50]–[51].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) “Error of fact and law in failing to find that employment had been the main contributing factor to injury sustained due to the nature and conditions of employment.” (Ground No. 1)
(b) “Error of fact and law in erroneously weighing and considering the medical evidence, and in accepting that the opinion of Dr Bodel properly supported injury due to the nature and conditions of employment/disease.” (Ground No. 2).
(c) “Error of fact and law in failing to find the nature of the injury sustained by the [respondent] due to the nature and conditions of employment as required pursuant to [s 4 of the 1987 Act].” (Ground No. 3)
The appellant, in its supplementary submissions following receipt of the transcript, seeks leave to add a fourth ground of appeal:
“The [Member] fell into error of fact and law in failing to find the deemed date of injury required by [s 16 of the 1987 Act] with respect to the claimed injury due to the nature and conditions of employment (s 4(b) [of the 1987 Act]) and failing to address the submissions advanced by the appellant at pages 30 – 32 of the transcript.” (proposed Ground No. 4)
INTERLOCUTORY APPEAL
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
In Licul v Corney, Gibbs J (as his Honour then was) said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view – which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh [1971] 2 QB 597 – is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant [1966] HCA 36; 117 CLR 423, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[41]
[41] [1976] HCA 6; 180 CLR 213, [11].
The Arbitrator’s orders provided for referral of the matter to an AMS for assessment of permanent impairment resulting from the three found injuries. The orders were interlocutory. It follows that the appeal requires the granting of leave if it is to proceed. The appellant argues[42] that leave should be granted, relying on DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly[43] and Campbelltown Tennis Club Ltd v Lee.[44] The respondent submits the appeal is brought “prematurely”, before assessment by an AMS, and leave should be refused.
[42] Appellant’s submissions, [10]–[14].
[43] [2011] NSWWCCPD 43.
[44] [2013] NSWWCCPD 50.
In Collingridge v IAMA Agribusiness Pty Ltd, Roche DP said that exercise of the discretion in s 352(3A) involved “a consideration of the nature of the dispute and the orders sought on appeal”.[45] The decisions on which the appellant relies are examples, from multiple Presidential decisions, in which it has been held to be desirable that the basis of a referral to an AMS for assessment be dealt with on appeal, before an assessment by an AMS is held. In the current matter it is desirable that the injuries to be referred be dealt with on appeal, before the assessment occurs. This limits the possibility that a referral may be on a basis that turns out to be inappropriate, following determination of the Presidential appeal. It is desirable for the proper and effective determination of the dispute. Leave to appeal is granted pursuant to s 352(3A) of the 1998 Act.
GROUND NO. 1
[45] [2011] NSWWCCPD 31; 10 DDCR 174, [17].
Appellant’s submissions
There was no issue that the respondent suffered injuries, within the meaning of s 4(a) of the 1987 Act, on 2 March 2018 and 31 May 2018. The appellant submits the ‘nature and conditions’ allegation of injury “invoked the terms of s 4(b)(ii)” of the 1987 Act. It submits that the Member made a finding at [50]:
“I am therefore actually persuaded to the required standard that the [respondent] has indeed sustained an injury arising from the nature and conditions of employment with the [appellant].”
The appellant submits the Member failed to make a finding that employment was the ‘main contributing factor’ to that injury, the “critical test imposed by the Act”. It submits that Dr Davies said that the ‘nature and conditions’ made some contribution and Dr Bodel did not deal with the issue. It is submitted that the Member failed to apply the test in s 4(b), or alternatively failed to provide reasons for any such finding, if it was made.[46]
[46] Appellant’s submissions, [10]–[16].
In its submissions in reply the appellant accepts that the Member stated the statutory test (main contributing factor) but says “[t]he decision does not disclose however that the test was ultimately applied” (emphasis in the original). The appellant submits there were lengthy submissions before the Member regarding whether the evidence was sufficient to satisfy the ‘main contributing factor’ test. The Member had indicated that she was troubled by the lack of direct medical evidence on the issue. It was an error of law to make the finding without explaining the basis on which this was done.[47]
[47] Appellant’s submissions in reply, [5]–[12].
Respondent’s submissions
The respondent quotes the following passage from the transcript:
“ARBITRATOR: … I am somewhat troubled by your burden to prove main contributing factor in circumstances where the doctors don’t address it. There’s no time off work, there’s no treatment and the [respondent’s] treating specialist doesn’t support it. I’m also concerned that the report of Dr Bodel doesn’t go far enough. I know that your instructing solicitor has provided the statement to Dr Bodel and he’s done his best to try and get that before him. Whether Dr Bodel meets the threshold in actually being able to rely on it and I feel satisfied is a different test.
Dr Bodel can be directed to it but whether when I read the report I understand that he’s taken it into account is a completely different story. So I have to say, Mr Parker, that I do have some concerns in respect of the nature and conditions of employment argument. Obviously we’ve got the frank incidents and that’s not a problem but, Mr Parker, you did invite me in the conciliation to make comments and I’m making those now. You can either elect to reply to those comments or seek further instructions, whatever you’d like to do, Mr Parker.”[48]
[48] Respondent’s submissions, [16], quoting T 36.30–37.19.
The respondent refers to the reasons at [44] where the Member said:
“The issue is whether there has been a nature and conditions claim and whether employment has aggravated that. That is that the nature and conditions of employment has made a contribution to the condition by way of an exacerbation of a pre-existing condition in circumstances where it might be true that the overall main component to the applicant’s condition relates to the incident on 31 May 2018. I agree with this submission.”
The respondent submits “[t]he use of the terms ‘nature and conditions claim’ (i.e. injury), ‘aggravated’ and ‘exacerbation of a pre-existing condition’, which follow directly after a delineation between permanent impairment and ‘s 4’ plainly means the [Member] was aware – and was applying – the correct test.” It is submitted the Member was clearly cognisant of the test, as she referred to it specifically during the arbitration” (referring to the passage quoted in the preceding paragraph). It is submitted the Member did not have to recite the test (referring to Laresu Pty Ltd v Clark,[49] a case involving the Civil Liability Act 2002). The respondent submits that the parties’ counsel referred to the main contributing factor test at least 19 times during the running of the arbitration hearing.[50]
[49] [2010] NSWCA 180, [42].
[50] Respondent’s submissions, [26]–[30].
The respondent submits the Member “obviously understood the test to be applied”, and she “used a shorthand, albeit concise method, of formulating her decision on a simple and [discrete] factual issue”. It is submitted the Member’s “reasons expose her path of reasoning”.[51]
Consideration
[51] Respondent’s submissions, [31]–[32].
The statutory definition
Section 4 of the 1987 Act relevantly provides:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …”.
Was the ‘injury’ finding based on the ‘disease’ provisions?
The appellant’s submissions on appeal proceed on the basis that the Member’s finding of ‘injury’, based on the ‘nature and conditions’ of employment, was one pursuant to the ‘disease’ provisions in s 4(b)(ii) of the 1987 Act. The respondent’s submissions on appeal do the same. The respondent, making submissions before the Member, also referred to the possibility that a finding of ‘injury’ on the basis of ‘nature and conditions’ could be made pursuant to s 4(a):
“… in [the] High [Court] [Zickar v MGH Plastic Industries Pty Ltd][52] the High Court said that the distinction between personal injury and disease – we talked about that – the majority held that the [word] includes in section 4(b) is not to be construed as excluding an injury being a disease within the meaning of para (b) from also being a personal injury within the meaning of para (a). In essence, para (a) and para (b) are not mutually exclusive …”.[53]
[52] [1996] HCA 31; 187 CLR 310.
[53] T 37.32–38.5.
The Member said she accepted that the respondent “can have an injury by way of section 4(a) and s 4(b) of the 1987 Act”.[54] The possibility that the Member’s relevant finding of ‘injury’ was one pursuant to s 4(a) of the 1987 Act can be left to one side in the circumstances, in light of the parties’ submissions on appeal. This is consistent with the fact that the Member did not, in her reasons, address whether s 9A of the 1987 Act was satisfied, which would have been necessary if the finding were one of injury simpliciter. Both parties, on this appeal, have approached the ‘injury’ issue on the basis that it relates to a finding pursuant to s 4(b)(ii) of the 1987 Act. It is consistent with the respondent’s submissions on Ground No. 1 which state:
“… the case was run on the basis of a single [discrete] issue. That is, whether the worker’s employment was the ‘main contributing factor’ to the ‘aggravation, acceleration, exacerbation or deterioration’ of the disease (s 4(b)(ii)).”[55]
[54] Reasons, [46].
[55] Respondent’s submissions, [28].
Was the main contributing factor test applied?
The respondent’s submissions refer to my discussion of the proof of ‘main contributing factor’ in AV v AW, where after reviewing a number of authorities I said:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[56]
[56] [2020] NSWWCCPD 9 (AV), [78].
It is clear, from the structure and clear words of s 4(b)(ii), that the requirement that employment be the ‘main contributing factor’ is a necessary prerequisite for a finding of ‘injury’ pursuant to the subsection.
The Member summarised the respondent’s evidence about his duties with the appellant, over a period of about 15 to 20 years.[57] She said that the duties “can only be described as ‘heavy’”.[58] She noted evidence in medical histories of past symptoms involving sciatica (in about 2008) and “intermittent twinges of pain in the lower back over the years relating to the heavy activities of work”.[59]
[57] Reasons, [2]–[8].
[58] Reasons, [45].
[59] Reasons, [37]–[38].
The Member summarised the evidence of Dr Bodel. This included an opinion that “this gentleman has suffered a disease process of gradual onset associated with the nature and conditions of his work in general and the specific injuries that occurred at work on 2 March 2018 and 31 May 2018”. The Member said “[q]uite clearly Dr Bodel holds the opinion that the nature and conditions of employment have had a role in the acceleration or aggravation of a disease process in the lumbar spine”.[60] The Arbitrator quoted from the reports of Dr Davies dealing with causation. She referred to Dr Davies’ final report dated 6 August 2020. He was asked by the appellant’s solicitors to confirm that the respondent “did not sustain an injury due to the general nature and conditions of employment outside the two specific events that are being pleaded as frank injuries”. The doctor replied:
“… the general nature and conditions of employment has made some contribution to the development of the condition by way of exacerbation of a pre-existing condition. Nevertheless, the main contributing event to the [respondent’s] condition was the event on 31 May 2018.”[61]
[60] Reasons, [17]–[22].
[61] Reasons, [25]–[33].
The Member described the appellant’s case as one that “the pathology, which supports a disease process in part, was not initiated by the frank incident but the nature and conditions of employment”. The Member referred to the appellant’s submission that “[t]he question is not whether the work was capable of causing it [the aggravation] but whether one is satisfied that the work and the nature of the work was the main contributing factor to the aggravation”.[62] The appellant, on this appeal, accepts that the Member stated that the test to be applied was whether the employment was the main contributing factor to the ‘nature and conditions’ injury. It submits that the Member failed to apply the test and that no proper reasons were provided.[63] It submits the findings made by the Member were insufficient to satisfy the test in s 4(b)(ii) to establish injury.[64]
[62] Reasons, [42]–[43].
[63] Appellant’s submissions, [14]–[15].
[64] Appellant’s submissions in reply, [10]–[12].
The Member, as the appellant submits, did not make a specific finding that the employment was the ‘main contributing factor’ to the disputed injury within the terms of s 4(b)(ii). The respondent submits the Member “used a shorthand, albeit concise method, of formulating her decision on a simple and [discrete] factual issue”. He submits her reasons “expose her path of reasoning”.[65]
[65] Respondent’s submissions, [31]–[32].
It was necessary, in the circumstances, that the Member deal with whether the statutory requirements necessary to prove ‘main contributing factor’ were satisfied. The reasons should be read as a whole.[66] In Pollard v RRR Corporation Pty Ltd McColl JA observed that the “extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[67] This was not a case where satisfaction of the ‘main contributing factor’ requirement in s 4(b)(ii) was merely a formality.
[66] Beale v GIO (New South Wales) (1997) 48 NSWLR 430, 444.
[67] [2009] NSWCA 110, [58].
Dr Jaeger, as the Member correctly observed, did “not provide any discrete opinion as far as causation is concerned” and did “not assist with causation directly”.[68] Dr Bodel did not specifically address the ‘main contributing factor’ aspect of the test. Dr Davies did direct his mind to the issue, but not in a way which convincingly distinguished between the causal effects of the ‘nature and conditions’ in a general sense and the frank incidents relied on. In his report dated 23 August 2019, Dr Davies said the respondent’s pre-existing lumbar spondylosis “was aggravated by the nature and conditions of his employment, particularly in relation to the incident that occurred on 31 May 2018. His employment has been the main contributing factor to the aggravation of a pre-existing condition”.[69] In his report dated 12 February 2020, Dr Davies said “employment was the main contributing factor to the injury”, responding to a question about the frank incident on 31 May 2018.[70] The doctor reduced his assessment of whole person impairment by one tenth to take account of “significant pre-existing degenerative change at L4/5 and L5/S1”.[71] In his report dated 6 August 2020, Dr Davies referred to the history of “intermittent episodes of pain in the lower back over some years in relation to heavy activities at work”. He continued:
“That information suggests that the general nature and conditions of his employment has also made some contribution to the development of his condition, by way of exacerbation of a pre-existing condition. Nevertheless, the main contributing event to his ongoing condition is the incident that occurred on 31 May 2018.”[72]
[68] Reasons, [23].
[69] Reply, p 21.
[70] Reply, p 29.
[71] Reply, p 30.
[72] Appellant’s application to admit late documents, 13.8.20, pp 2–3.
Overall, the medical evidence did not satisfactorily address whether employment was the ‘main contributing factor’ to the alleged ‘nature and conditions’ injury. The Member was alert to the difficulty (see the passage quoted at [40] above). It is possible for the test to be satisfied on the evidence overall, even if the medical evidence does not specifically deal with the issue (see [47] above). In the circumstances it was necessary that the Member deal with whether ‘main contributing factor’ was established and expose her reasoning in that regard. This was not done. I accept that the error in Ground No. 1 is established.
It is not, in the circumstances, necessary to deal with Grounds Nos. 2 and 3. It is unnecessary to deal with the appellant’s application for leave in respect of Ground No. 4.
DISPOSITION OF THE APPEAL
The appellant submits that the finding of injury due to the ‘nature and conditions’ of employment should be revoked and the matter should be referred to an AMS for assessment in respect of the injuries on 2 March 2018 and 31 May 2018 only. Alternatively, the appellant submits that the decision should be revoked and remitted to a different member for re-determination. The respondent does not make submissions on what orders should be made in the event of the appeal succeeding.
The respondent may, on a proper analysis, be entitled to succeed on the issue of ‘injury’ due to the ‘nature and conditions’ of his employment. It is appropriate that the matter be remitted for re-determination.
DECISION
Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
The Certificate of Determination dated 22 September 2020 is revoked.
The matter is remitted to a different member for re-determination.
Michael Snell
DEPUTY PRESIDENT
8 April 2021
4
21
0