Tuwai v Rail Services Australia & Anor
[2007] NSWWCCPD 232
•28 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Tuwai v Rail Services Australia & Anor [2007] NSWWCCPD 232
APPELLANT: Joape Tuwai
FIRST RESPONDENT: Rail Services Australia
SECOND RESPONDENT: Rail Corporation of New South Wales
INSURER:Allianz Australia Insurance Ltd as agent for NSW Self Insurance Corporation
FILE NUMBER: WCC1955-07
DATE OF ARBITRATOR’S DECISION: 18 June 2007
DATE OF APPEAL DECISION: 28 November 2007
SUBJECT MATTER OF DECISION: Error in fact finding – inconsistent findings; application of the ‘disease’ provisions and section 9A of the Workers Compensation Act 1987; section 40 assessment.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Adams & Partners
Respondents: Sparke Helmore
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 18 June 2007 is revoked and the following decision is made in its place:
1. That the Respondent Employers pay the Appellant Worker weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 Act in the amount of $325.00 from 12 June 2006 to date and continuing.
2. That the Respondent Employers pay the Appellant Worker’s expenses pursuant to section 60 of the Workers Compensation Act 1987 Act.
3. That the Respondent Employers pay the Appellant Worker’s costs of the proceedings before the Arbitrator.
4. The Registrar be invited to refer the degree of permanent impairment to an approved medical specialist to be selected by the Registrar, in accordance with these Reasons.
The Respondent Employers are to pay the costs of the Appellant Worker of this appeal.
BACKGROUND TO THE APPEAL
On 12 July 2007 Joape Tuwai (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’).
The Respondents to the Appeal are Rail Services Australia and Rail Corporation of New South Wales. The Application to Resolve a Dispute (‘ARD’) originally nominated the State Rail Authority of New South Wales (‘SRA’) as First Respondent, and the current Respondents as Second and Third Respondents. The Arbitrator’s Reasons record (and it is not the subject of dispute) that “The first respondent (SRA) has been released from the proceedings, while the remaining respondents have agreed to apportion any liability on a basis agreed between them.” ([18]). Consistent with this arrangement, the current Respondents were jointly represented by a single counsel on the arbitration hearing, and by Messrs Sparke Helmore on this appeal. It was not suggested, during the running of the arbitration hearing, or on this appeal, that anything turned on which entity employed the Appellant Worker from time to time, during the course of his career with ‘the Railways’. As an agreement is in place, no orders are sought relevant to contribution or apportionment. I shall accordingly use the generic term ‘the Railways’, to describe his employer from time to time.
The Appellant Worker was born on 19 March 1946. He is right hand dominant: Dr Bencsik’s report 17 July 2006 at P1.5. The ARD claimed a dependant wife and child, but the claim in respect of dependants was not pressed (T10.40). A report of Work Directions Australia dated 15 April 2002, relied upon by the Railways, recorded the Appellant Worker was educated to Year 10 level in Fiji, and had satisfactory reading, writing and numeracy skills. He came to Australia in the early 1970’s, and carried out maintenance work with Ashfield Council, before commencing at the Railways in about 1980 as a fettler. A short statement of the Appellant Worker dated 20 July 2006 said there was no mechanical assistance with lifting in this job. The Work Directions report described the Appellant Worker’s duties as a fettler as involving track maintenance, replacing timber and railings, changing sleepers, lifting rails, loading and unloading sleepers and timbers from trucks, and using jackhammers.
The ARD pleaded injury throughout the Appellant Worker’s employment with the Railways, caused by repetitive reaching and lifting, and also nominated a date of injury of 20 April 2005. The evidence did not indicate any frank incident, rather the case pursued was one of injury to both shoulders due to the general nature of work over the years at the Railways.
Dr Nashed’s report dated 9 May 2003, recorded the Appellant Worker consulted him on 28 July 1999, complaining of symptoms in both shoulders. He gave a history of working “as a track patrolman”, which required “a lot of heavy labouring type of work duties”. He said he had had right shoulder problems for “some years”, due to “repetitive heavy work”. X-rays dating back to 9 May 1997 showed arthritic changes in both shoulders. The Appellant Worker was referred to an orthopaedic surgeon, Dr Biggs, who first saw him on 19 August 1999, and carried out arthroscopic debridement and anterior capsule release of the right shoulder, on 12 October 1999. Dr Biggs, when the Appellant Worker was returned to him for medico-legal purposes, reported on 20 December 2000 “onset of left shoulder pain over the last three to four months”, with a history of this being associated with increased use of the left arm subsequent to the right shoulder surgery.
The Work Directions report dated 15 April 2002 recorded the Appellant Worker had “approximately three months” off work after the right shoulder surgery, and then “was placed on suitable duties and transferred to track patrol”. His work duties were said to be “permanently modified” at that time. The Appellant Worker’s statement said “I was ultimately promoted to the work of a track patrolman as a form of light duty following report of my injury”. The Work Directions report dated 1 May 2002 refers to a worksite assessment on 24 April 2002. By that point the Appellant Worker was employed on track patrol duties, as he was unable to perform the various functions required of a fettler: P1. His modified duties are set out at page 3 of the report in some detail. The physical requirements are described as walking over uneven ground, frequent crouching, sustained standing, and “bilateral upper limb activity (light) to complete checklist on clipboard and light repair work (clearing debris, refilling track lubrication, replacing insulator joint)”.
The Appellant Worker brought proceedings in the Compensation Court of New South Wales against the SRA and Rail Services Australia, No 49537 of 2000. The material does not include any pleadings, save for Short Minutes and a Consent Award, dated 2 May 2001. These provide for those proceedings to be discontinued as against the SRA, and for awards against Rail Services Australia pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 17.5% loss of use of the right arm at or above the elbow, and 7.5% loss of use of the left arm at or above the elbow, together with a sum of $10,375.00 for pain and suffering pursuant to section 67.
Dr Biggs’ report of 15 February 2006, following a review that day, recorded “increasing problems with regard to pain, stiffness and catching of the left shoulder…no further history of injury to that shoulder”. Dr Biggs recommended arthroscopic debridement of the left shoulder. This surgery was not carried out, apparently as the Railways declined to accept responsibility for the cost. The Appellant Worker’s statement states he has not worked since April 2006 “due to lack of light duty work” [7]. This is contrary to the history set out in a report of Dr Rimmer (qualified by the Railways), which indicates a history on 3 March 2006 of the Appellant Worker “going off work in the last four months”. That consultation was apparently marred by language difficulties. Dr Gothelf (also qualified by the Railways) in a report dated 25 September 2006, recorded the Appellant Worker stopped work “after his injury to his left shoulder on 20 April 2005”.
The Appellant Worker received weekly compensation on a voluntary basis until 12 June 2006, liability being declined thereafter on the basis section 9A of the 1987 Act (‘substantial contributing factor’) was not satisfied, the Railways relying upon Dr Rimmer’s report dated 23 May 2006. The Appellant Worker has not worked thereafter.
The ARD claimed weekly compensation from 29 May 2006 on a continuing basis, a general order pursuant to section 60 of the 1987 Act, and additional lump sums in respect of 3.5% loss of use of the left arm, and 1.5% of the right arm, together with an additional sum pursuant to section 67.
The matter proceeded to arbitration hearing on 8 June 2007. The parties were legally represented. No oral evidence was called.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 June 2007 records the Arbitrator’s orders as follows:
“1.Award in favour of the Respondent in respect of the Applicant’s claim for weekly benefits compensation.
2.Award in favour of the Respondent in respect of the Applicant’s expenses under section 60 of the 1987 Act.
3.The Registrar be invited to refer the degree of permanent impairment to an Approved Medical Specialist to be selected by the Registrar.”
The Certificate of Determination was accompanied by thirteen pages of Reasons.
ISSUES IN DISPUTE
The Appellant Worker raises the following issues in the appeal:
(i)The Arbitrator found the Appellant Worker suffered “permanent impairment at least partly attributable to his employment”, and “in relation to the non-economic loss claim I find that there is a causal connection between the nature and conditions of the applicant’s employment with the respondents remaining in the proceedings”. He also found “his work is a substantial contributing factor in relation to impairment (s9A)”. These findings are at [39] of the Reasons, and led to the order inviting the Registrar to refer the claim for permanent impairment to an approved medical specialist (AMS) for assessment. It is submitted such findings were inconsistent with the finding, dealing with the weekly claim, that aggravation of “underlying constitutional osteo-arthritis (of the shoulders) ceased before the commencement date of his claim for weekly benefits compensation” [48].
(ii)The findings, in dealing with the weekly claim, that the effects of work caused aggravation had ceased, and that employment was not a substantial contributing factor, were inconsistent with the prior consent award based upon permanent impairment of both arms.
The Railways submit the arbitral decision should be confirmed, save for one part, making the following submissions:
(i)Findings that the effects of work caused aggravation had ceased, and that section 9A was not satisfied, were available on the medical evidence adduced by the Railways, in particular that of Drs Gothelf and Rimmer.
(ii)The earlier consent award did not involve any concession of economic incapacity thereafter.
(iii)Given the findings made that aggravation had ceased, and section 9A was not satisfied, there was no jurisdiction to refer the lump sum claim to an AMS.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by all parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount at issue on the appeal clearly exceeds the sum of $5,000.00 provided in section 352(2)(a), and the Railways properly concedes the threshold requirements are met.
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.
DISCUSSION AND FINDINGS
Error in Fact Finding – Contradictory Findings
The nature of the review process in Presidential appeals has been recently described by Roche DP in Northern Sydney Area Health Service v Todorovic & Anor [2007] NSWWCCPD 223. I propose applying those principles.
The reference in the ARD to injury on 20 April 2005 may well be a reference to a date of claim, this is not clear. No party has included in its material copies of relevant notices of injury, or claim forms. Whatever its significance, the lay and medical evidence does not indicate the Appellant Worker suffered any specific injury on that date. Rather, the case the Appellant Worker sought to establish was one based upon the nature and conditions of his work over his lengthy career with the Railways.
There is substance to the Appellant Worker’s submission that there is inconsistency in the findings made by the Arbitrator. The Reasons clearly indicate questions of whether the Appellant Worker suffered injury, whether employment was a substantial contributing factor, and whether incapacity resulted from injury, were issues in dispute: [8]. Such issues are described in the Reasons as relevant to the weekly benefits claim, but quite clearly questions of injury, substantial contributing factor, and causation, were relevant to the claim as a whole, including the lump sum component. It would be illogical, for example, to find an injury occurred in considering the weekly claim, and to make a contrary finding on the related lump sum claim. In Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (‘Waretini’) I dealt with an appeal, in which an arbitrator had determined as a matter of fact that the effects of an employment injury had resolved, and that any ongoing symptoms were not work related. This decision was not appealed. The arbitrator subsequently referred the worker’s claim for permanent impairment lump sum compensation, resulting from the same injury, to an AMS. I held the initial finding gave rise to an issue estoppel, which then bound the parties in dealing with the lump sum claim. I said:
“To say that a worker can fail in a claim for weekly compensation, and yet still potentially have an entitlement to lump sum compensation for permanent impairment, is clearly true. It will depend on the basis for the worker’s failure in his weekly claim. A worker may be found to have no entitlement to weekly compensation as there is no economic incapacity, and yet still have a compensable permanent impairment. However if, for example, a worker fails in his weekly claim because there is a finding he has not suffered an injury, or the effects of employment injury have ceased, such a finding is inconsistent with the existence of a compensable permanent impairment caused by the alleged employment injury.” [39].
At [39] of his Reasons the Arbitrator referred to the prior consent award, and to various of the medical opinions on causation. He concluded:
“Therefore in relation to the non-economic loss claim I find that there is a causal connection between the nature and conditions of the applicant’s employment with the respondents remaining in the proceedings and invite the Registrar to refer the assessment of any further permanent impairment and the contribution of any pre-existing condition or abnormality to an AMS as his work is a substantial contributing factor in relation to impairment (s9A).”
The Arbitrator then separately dealt with the issue of causation in respect of the weekly claim, at [40] to [48]. He referred at length to the evidence, including the competing medical views. He concluded:
“However I find any aggravation of Mr Tuwai’s underlying constitutional osteo-arthritis ceased before the commencement date of his claim for weekly benefits compensation. Therefore I find that Mr Tuwai’s incapacity since 29 May 2006 was not caused by the nature and conditions of his employment, that is to say his employment is not a substantial contributing factor to the period of claimed incapacity for employment from 29 May 2006 to date and continuing for the reasons set out above but is because of the constitutional condition.”: [48].
At [50] the Arbitrator made a formal finding consistent with this, that the Appellant Worker had injured both shoulders, by way of aggravation of constitutional osteoarthritis, but that the aggravation had ceased prior to the period of claimed incapacity.
The effects of the aggravation had either resolved, or they had not. They could not resolve prior to 29 May 2006 for the purposes of the weekly claim, and yet continue for the purposes of the claim for non-economic loss, such that it was appropriate the matter be referred to an AMS for assessment. If the appropriate finding on causation was that the effects of work caused aggravation had ceased by 29 May 2006, there was no need to refer the lump sum component to an AMS. That finding on causation would have been fatal to the lump sum claim succeeding. It has been held in a number of Presidential decisions, that questions such as ‘injury’ and causation, are matters for determination by an arbitrator, rather than matters which should be simply left to resolution by an AMS: see the decisions discussed in Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131 at [36] to [40], and in particular Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 at [48].
If the AMS, consequent upon the Arbitrator’s orders, issued a binding medical assessment certificate (‘MAC’) expressing the view aggravation of the Appellant Worker’s arthritic condition, occasioned by his work duties, continued, this would potentially lead to two inconsistent findings of fact, on the same issue, in the same proceedings. In Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589, Gibbs CJ, Mason & Aicken JJ (in the context of ‘Anshun’ estoppel) said:
“It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.”
And:
“By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”
Whilst these passages deal with a different question, as a matter of general principle a decision that potentially produces two conflicting results, on the same point, in the same proceedings, indicates error in the fact finding process. This is inherent in the Railways’ submission, referred to at [15](iii) above, that the referral to an AMS should not have occurred, in light of the causation finding on the weekly claim. In Waretini, there was a binding finding between the parties, not appealed, on causation. I held the parties were bound by the resultant estoppel, and accordingly an order inconsistent with the estoppel, referring the matter to an AMS, was in error. The situation in the current matter is different. The two inconsistent findings are in the same decision, which comes before me on appeal. It follows that the Arbitrator’s decision must be revoked.
I should note, the Arbitrator dealt with questions of causation, and ‘substantial contributing factor’ pursuant to section 9A, as if they were one and the same (see the passages at [39] and [48] of the Reasons, quoted at [25] and [26] above). Section 9A clearly raises questions of causation (see generally Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46). However the two concepts are not the same. Section 9A goes to the “strength of the causal linkage” between the employment and the injury: Mercer v ANZ Banking Group Limited (2000) 20 NSWCCR 70, such that compensation is not payable in respect of an injury if the requirements of the section are not satisfied. It is necessary that the requirements of section 9A be satisfied, if compensation is to be payable in respect of an injury. If questions of ‘injury’ and section 9A are decided favourably to a worker, questions of causation become relevant in considering whether incapacity (or permanent impairment) result from the injury.
The way in which the Railways dealt with the matter may well have contributed to this confusion. The section 74 notice, declining further liability, relied solely upon section 9A as a basis for the termination. In fact, the case the Railways ran at the arbitration was one that aggravation had ceased, such that ongoing incapacity did not result from compensable injury. When the Railways’ counsel was asked by the Arbitrator why voluntary compensation had stopped, the following exchange occurred, relating to the section 74 notice:
“COUNSEL: And it’s read one of two ways. It’s expressed in this awkward fashion of saying that “your work is no longer a substantial contributing factor”—
ARBITRATOR: Right
COUNSEL: --but if you want to interpret that in the medical picture once you look at the medicine, what they’re saying is, “Look, if you had an aggravation, we say that aggravation has now ceased.” (T13)
I mean no criticism of counsel in recounting this passage, as he sought to bring the case available to be presented on the evidence, into line with the notice previously given by his clients. However more particularity on the part of the Railways, in expressing the appropriate basis for declining ongoing liability, may have reduced the likelihood of the two issues of causation, and ‘substantial contributing factor’, being confused as they were. This aspect of the proceedings was not raised by the parties to the appeal, and I do not rely upon it in reaching the view I have already expressed, that the Arbitrator’s decision should be revoked.
Having upheld the appeal, it is desirable that I re-determine the matter, if possible: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344. The evidence was documentary; no oral evidence was called. I have transcript of the arbitration hearing. I am in as good a position as the Arbitrator to determine the matter. The appropriate course is that I re-determine it, rather than remit it to another arbitrator for determination.
Injury – The Lay Evidence
The histories overall are generally consistent with that recorded by Dr Bencsik in his report of 7 July 2006 that “Mr Tuwai stated that he has had no direct injuries to either his left or right shoulder but that he has a history of many years of heavy lifting and carrying in his work as a fettler”: P 3.7. The medical evidence is consistent with a diagnosis of osteoarthritis affecting both shoulders. Dr Biggs (the treating orthopaedic surgeon) also postulated a diagnosis of “impingement syndrome and rotator cuff tendonitis” of the left shoulder, in his report of 20 December 2000. The bilateral shoulder condition from which the Appellant Worker suffers is appropriately characterised as a ‘disease’ within the meaning of sections 4, 15 and 16 of the 1987 Act: Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors (1998) 16 NSWCCR 253; Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656.
Dr Bencsik expressed the view the condition of bilateral osteoarthritis was both caused and aggravated by the Appellant Worker’s employment duties over twenty-six years at the Railways. The other medical practitioners are of the view the arthritic condition was not work caused, and comment on the matter on the basis of whether or not the condition has been aggravated by the work duties, and if so, whether aggravation continues. I prefer the view in the preponderance of the medical evidence, that the arthritic condition was not caused by the Appellant Worker’s duties with the Railways. Thus the appropriate statutory provisions are those in sections 4(b)(ii) and 16 of the 1987 Act. In considering whether the Appellant Worker suffered injury within the meaning of that section, I propose being guided by the steps described by the NSW Court of Appeal in Austin v Director General of Education (1994) 10 NSWCCR 373.
The evidence in the Appellant Worker’s statement regarding the nature of his duties from time to time, over the twenty-six odd years he worked at the Railways, is not extensive. His statement says there was no mechanical assistance with lifting in his work as a fettler, and that he became a track patrolman “as a form of light duty following report of my injury”. He describes then working as a track patrolman for “about 6 or 7 years”, until that position was upgraded, and he ceased as no other light duties were available. I take the ‘injury’ referred to in this sequence to be the injury described as “19.08.99” in the Work Directions reports of 15 April 2002 and 1 May 2002. As no frank incident is alleged, or recounted in the medical histories, as occurring in 1999, I take the date of injury referred to as a reference to a notional date of injury, flowing from the date of claim at that time. The report of 15 April 2002 described 19 August 1999 as the “official date of the injury”, at page 7.4.
The Work Directions reports are helpful. They date from 2002, when the Appellant Worker was back working after his 1999 claim, but before he went off (probably in April 2005) in respect of the more recent claim. The report of 1 May 2002 occurred after both interview with the Appellant Worker, and a worksite assessment of his duties at that time. The report of 15 April 2002 followed assessment of the Appellant Worker on 9 April 2002. He gave a history of “very physically demanding, physical labour”, which resulted in deterioration of the right shoulder, and complaints the left shoulder was “going to go too”. The Appellant Worker said he first saw his general practitioner Dr Nashed about the problem on 9 May 1997. He described taking three months off work following surgery to the right shoulder by Dr Biggs (this was carried out on 12 October 1999). The Appellant Worker said his work duties had been permanently modified. That report contains, at page 6, a history of the Appellant Worker’s pre-injury duties, consistent with their description as “very physically demanding, physical labour”. These include using jackhammers, changing sleepers, lifting rails, loading and unloading sleepers and timbers from trucks, and other activities. The duties actually being carried out by the Appellant Worker at that time, in 2002, appear much lighter, certainly from the point of view of his shoulders. He was required to walk and inspect rail tracks for damage, and call in maintenance crews to carry out repairs. The track patrol duties in 2002 are described in more detail in the report of 1 May 2002. They are not strenuous from the point of view of the arms and shoulders. A Work Directions report dated 14 May 2002 said “Dr Nashed agreed on 14/5/02 that Mr Tuwai’s current suitable duties were appropriate for his physical capabilities”.
It appears the Appellant Worker carried out the modified duties, until ultimately ceasing work “due to the lack of light duty work”, when his patrolman position was upgraded to that of a fettler. His statement says this occurred in April 2006, but it may well have been earlier, probably April 2005 (see [8] above). Thus the evidence is consistent with the Appellant Worker having engaged in demanding physical labour, in his occupation as a fettler, before his duties were changed after he made a claim, and underwent right sided surgery, in 1999. The Work Directions report dated 15 April 2002 indicates the Appellant Worker was placed on suitable duties doing track patrol, when he resumed work about three months after his right shoulder surgery. The suitable duties, as identified in the Work Directions reports in 2002, were not strenuous from the point of view of the upper limbs, and were accepted by the Appellant Worker’s general practitioner Dr Nashed, as being appropriate. It appears the Appellant Worker continued carrying out these suitable duties until they ceased to be available, in 2005 or 2006. The evidence does not indicate, and the Appellant Worker’s statement does not suggest, he ever resumed physically demanding work after his right shoulder surgery.
There is a passage in the transcript which casts doubt on this sequence of events:
“RESPONDENTS’ COUNSEL: Oh, I beg your pardon. It looks like we might not have served this document. All I was going to say was he’s been a patrolman since 1994, and I knew that but I thought everybody knew that, the point being, though, that it wasn’t something that just happened after 1999, when he had the surgery. So it wasn’t a question of the provision of special duties; it was a job that he’d been promoted to.
ARBITRATOR: Promoted. Well, he says he was promoted.
RESPONDENTS’ COUNSEL: Yep. That’s right. And all I wanted to say was he, in fact, was promoted five years before he thought he was, because, in fact, since 1994 he’s been a patrolman. In any event –
ARBITRATOR: Well, hang on.
RESPONDENTS’ COUNSEL: --it’s not –
ARBITRATOR: You don’t have –
RESPONDENTS’ COUNSEL: -- It’s not much of a point really now. It’s just one issue here. So in terms of me being critical of the applicant I won’t be critical – okay – because it’s an assertion made but –
ARBITRATOR: No supporting evidence.
RESPONDENTS’ COUNSEL: That’s right. I know it to be incorrect but I can’t –
ARBITRATOR: You can’t enter this evidence now.
RESPONDENTS’ COUNSEL: Yeah. That’s the point. I won’t, and I won’t be critical, as I was going to be.” (T22.35 – 23.15)
Evidence consistent with this assertion by the Railways’ counsel was not adduced on the arbitration hearing, nor was application made to adduce any such material as fresh evidence on the appeal. Thus, as the Arbitrator observed, there was not an evidentiary basis for the assertion. Even if the Appellant Worker had been classified as a patrolman from 1994, this would not preclude physical aspects of his duties being removed, after the right shoulder surgery. This would be consistent with the permanent modification of the Appellant Worker’s duties described in the Work Directions reports in 2002.
Injury – The Medical Evidence
Dr Nashed’s report dated 9 May 2003 describes a consultation on 28 July 1999, with a history of work as a fettler, and symptoms in both shoulders, the right appears to have been more troublesome at that time. X-rays on 9 May 1997 had demonstrated arthritic changes in both shoulders. Dr Nashed referred the Appellant Worker to Dr Biggs.
Dr Biggs’ report dated 19 August 1999 confirms a history of “a lot of heavy labouring type of work duties”. It refers to the right shoulder, not the left. An operation report dated 12 October 1999 sets out the procedure undergone by the Appellant Worker, arthroscopic joint debridement and anterior capsule release on the right shoulder. The procedure demonstrated extensive osteoarthritis, and other changes. On 2 December 1999 Dr Biggs recorded the Appellant Worker had obtained pain relief, but had activity related pain and stiffness in the shoulder, due to underlying osteoarthritis. Dr Biggs then thought the Appellant Worker should avoid “any heavy repetitive lifting using the right arm”.
On 26 April 2000 Dr Biggs reported to the Appellant Worker’s solicitors. He said the right shoulder had improved after surgery, but he did not expect it to improve further, and it would deteriorate with time. He said the Appellant Worker was coping with his work duties, but “would not be fit for work duties involving any repetitive lifting, pushing, pulling or shovelling that he had been doing previously”: P 2. Dr Biggs said the unfitness for heavy repetitive work was due to the underlying osteoarthritis of the right shoulder, and that work was a substantial contributing factor to the cause of the accident. Dr Biggs said the thirty percent loss of use of the right arm he assessed was half due to the “work environment”, and half due to a “pre-existing condition”. Although the reference to “accident” is inappropriate on the history, these views are consistent with Dr Biggs holding the view the Appellant Worker’s duties, when he was carrying out heavy duties as a fettler, had contributed to the osteoarthritis in the right shoulder, and were one half responsible for the assessed permanent loss. Dr Biggs then went on to say the work environment was the cause of aggravation, “where he was doing heavy labouring type of work”, and “This aggravation has now ceased”. Read in context, this must be an opinion the heavy labouring (and therefore the ongoing process of injury) has ceased, rather than an opinion the effects of the aggravation had resolved. Dr Biggs noted the Appellant Worker was on a permanent restriction at work, “no repetitive lifting or resistant tasks”, no upper limb at or above shoulder height, no lifting above 7.5 kilograms.
Dr Biggs saw the Appellant Worker at the request of his solicitors, and reported on 20 December 2000. He described symptomatic improvement in the right shoulder. He does not record what symptoms were present in the right shoulder on that consultation, although does refer to “an ongoing right shoulder and arm problem”. He also records a history of “left shoulder pain over the last three to four months”. The Appellant Worker associated these left symptoms with increased use of the left arm subsequent to the right shoulder surgery. Dr Biggs diagnosed “impingement syndrome and rotator cuff tendonitis of the left shoulder, which “may well be due to the increase (sic) use that the left arm has been required to do as a consequence of his ongoing right shoulder and arm problem”.
Dr Biggs next reports on 15 February 2006, with a history of increasing problems in the left shoulder, with no further history of injury to that shoulder. On 26 April 2006, after reviewing the Appellant Worker that day, Dr Biggs recorded significant problems in the left shoulder. He diagnosed “significant chondromalacia of the left gleno-humeral joint”, and suggested left shoulder arthroscopy and debridement. His report of 2 August 2006 diagnoses chondromalacia and osteoarthritis of both shoulders, and states his belief the condition “has been aggravated by the repetitive work that he had been required to do”. A short report of 17 August 2006 states “work has been the substantial contributing factor to the cause of his ongoing shoulder problem”.
Dr Bencsik examined the Appellant Worker at the request of his solicitors on 7 July 2006. His history records the change in duties from fettler to patrolman, with the latter sounding significantly lighter. It records the left shoulder problem commencing about five years previously. By the time of this examination the Appellant Worker was more concerned by the left shoulder than the right (see ‘Current Status’ at P 3). However it is noteworthy the Appellant Worker was unable to clap his hands above his head, due to both pain in the left shoulder, and stiffness in the right. Dr Bencsik opined the osteoarthritis diagnosed was both caused and aggravated by work. I have already expressed a preference for the view it was not actually caused by the work duties. Dr Bencsik thought the Appellant Worker “unfit for work as a fettler both for his left and right shoulders”. He thought he could work as a patrolman provided he did not have to do heavy lifting.
In the Railways’ case, Dr Rimmer examined the Appellant Worker on 3 March 2006, and reported on the same date. He describes communication difficulties associated with language. He diagnosed pre-existing arthritis, and an “impingement syndrome” resulting from heavy manual work. Dr Rimmer re-examined the Appellant Worker on 28 August 2006. He describes a history “in October 2005, as best I could determine, there was a gradual onset of pain in the left shoulder”. Again, the doctor described language difficulties. His opinion was that the Appellant Worker suffered from “osteoarthritis, this is constitutional in nature”, together with left sided “impingement syndrome, which giving the patient the benefit of the doubt, this is work related”. He described him as being fit for “non-lifting work”. As I read Dr Rimmer’s reports, they deal with the left shoulder, the right shoulder being dealt with rather as part of the past history.
Dr Gothelf also examined the Appellant Worker on behalf of the Railways, on 15 September 2006. He took a history of a “wear and tear” injury to the right shoulder in 1999. It was said there had been pain in the shoulders over twenty years, gradually occurring without specific injury. The Appellant Worker told him the right shoulder was much improved after Dr Biggs’ surgery, but “he still had continuing pain”. In so far as the left shoulder is concerned, although this was reported on 20 April 2005, it also had been the site of symptoms over the past twenty years, although not as severe as the right. There was a history of a right clavicle fracture playing rugby in the Appellant Worker’s youth, which he said had healed permitting a return to normal activity. Dr Gothelf recorded symptoms, at the time of his examination, were worse in the left shoulder than the right. Dr Gothelf diagnosed osteoarthrosis, and said it was unlikely the Appellant Worker could return to heavy labouring duties. He thought he could work full time, no lifting more than five kilograms, no work in front of his body or overhead lifting. In his main report, Dr Gothelf said it was unlikely the condition developed due to work, and work was not a contributing factor to the diagnosis. In a supplementary report assessing permanent impairment, the doctor said “The cause of his shoulder osteoarthrosis would be idiopathic. That said, I do believe that his work of heavy lifting, overhead activities, and working in front of his body most likely exacerbated his diagnosis. I would apportion 80% of his diagnosis to be unrelated to any injury at work and 20% of his diagnosis for both shoulders, to be due to the exacerbations from his work activities of overhead lifting and heavy labour.” (at P 3). I would read Dr Gothelf’s opinion as conceding that, although the arthritic process in both shoulders was constitutional, work activities involving overhead lifting and heavy labouring had contributed to the process by way of aggravation.
On the medical evidence overall, but in particular the views of the treating orthopaedic surgeon Dr Biggs, and Dr Bencsik, I am satisfied the Appellant Worker’s employment duties, before they were modified in 1999, caused injury by way of aggravation of the disease process in both shoulders, and the employment was a contributing factor to that aggravation. The appropriate deemed date of injury would be 19 August 1999, that being the date previously accepted by the parties as an “official date” of injury (see Work Directions report 15 April 2002 at P 7.4).
The requirements of section 9A of the 1987 Act are also, in my view, clearly satisfied. In Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’) Mason P said:
“The worker correctly submits that the words ‘employment concerned’ in s 9A reinforces the view that it is the work activity in which the worker was engaged at the time of the injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of a ‘substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s 9A.” (at [22])
This passage was quoted with approval in Workcover Authority v Walsh [2004] NSWCA 186 at [91], and in Murray v Shillingsworth [2006] NSWCA 367 (‘Murray’) at [56]. It is necessary that the employment be a substantial contributing factor, not the substantial contributing factor. There may be more than one substantial contributing factor to an injury. “The term ‘substantial’ may have various shades of meaning. Having regard to the context it may mean ‘large or weighty’ or ‘real or of substance’ as distinct from ‘ephemeral or nominal’”: Murray at [56]. Where injury consists in the aggravation of a disease within the meaning of section 4(b)(ii) of the 1987 Act, it is necessary the employment be a substantial contributing factor to the aggravation, not to the disease process as a whole: Murray at [7], and [62] to [64]. On the medical evidence, in particular that of Dr Biggs and Dr Bencsik, and the evidence of the duties carried out prior to 1999, I am satisfied the contribution of the employment to the aggravation was substantial, as that term is explained in Mercer and Murray.
Do the Effects of the Aggravation Continue?
It is clear, from the report of Dr Nashed setting out the contemporaneous complaints in 1999, that symptoms were present in both shoulders at that time. I would infer, from the fact that X-rays were taken of both shoulders in 1997, that symptoms were present in both shoulders then. Dr Gothelf recorded a history of the Appellant Worker “having pain in his shoulders over the past 20 years, gradually occurring without any evidence of specific injuries.” (P 3.2). I am satisfied the Appellant Worker developed symptoms in both shoulders, probably over a period of years, prior to the change in duties which followed his right shoulder surgery in 1999.
In so far as the right shoulder is concerned, the Appellant Worker came to surgery on 12 October 1999. The histories recorded by Dr Biggs, and others, are consistent with a symptomatic improvement in the right shoulder, after that surgery. They do not suggest the Appellant Worker’s right shoulder fully recovered. This state of affairs was accepted by the Railways, which placed the Appellant Worker on permanently modified duties subsequent to the 1999 surgery. On 2 May 2001 the Railways consented to an award in respect of 17.5% loss of use of the Appellant Worker’s right arm at or above the elbow. This constitutes an admission the Appellant Worker had suffered that permanent loss, due to compensable injury, at that time. There is no material put on by the Railways to explain away the admission, for example suggesting the award was consented to by mistake, or for some other reason weight should not be given to the admission. Although I have not accepted Dr Bencsik’s opinion the bilateral arthritis was caused by the Appellant Worker’s duties, I accept his opinion that work duties caused aggravation of this condition, over his years of employment at the Railways: P5.3. He is of the opinion, which I accept, that the effects of the work related injury are permanent: P 6.3. I accept also Dr Biggs opinion the condition was aggravated by the work: report 2 August 2006 at P 2.3. The Railways present little medical evidence to the contrary, in respect of the right shoulder. Dr Rimmer confines his opinion on causation to a consideration of the left shoulder. Dr Gothelf, whilst saying the Appellant Worker’s current symptoms were not caused by his work duties, qualifies this by saying the condition was aggravated by work duties (P 10.4), and makes the concession described at [49] above, consistent with the view the work duties caused permanent contribution by way of aggravation.
Accordingly I have reached the view, and I find, the effects of injury by way of aggravation of the right shoulder condition, which I have found at [50] above, are continuing.
The evidence of left shoulder symptoms supports their long standing nature, going back over a period of twenty years (Dr Gothelf’s history at P3.2). The left shoulder was X-rayed in 1997, and was the subject of complaint (along with the right) to Dr Nashed, in 1999. Thus left shoulder symptoms were established, before modification of the Appellant Worker’s duties, in 1999. Clearly the left shoulder was less troublesome than the right, in 1999. It was the right that was reported on by Dr Biggs at that time, and was the subject of surgery. The left shoulder was causing increasing trouble by December 2000, when Dr Biggs reported an onset of pain over the last three to four months, with a history of this being associated with increasing use of the left arm, due to the right arm injury and surgery. Dr Bencsik’s history is consistent with left shoulder symptoms, activity related, from about 2001: P 2.4. On 2 May 2001 the Railways consented to an award in respect of 7.5% permanent loss of use of the left arm at or above the elbow. Again, there is no material from the Railways to explain away the force of this admission, by suggesting, for example, that it resulted from mistake.
By 2006 the shoulder causing the most problem was the left. Dr Biggs commented, in his report of 2 August 2006, that osteoarthritis “generally worsens with time with regard to increasing pain and stiffness of the involved joints”. The worsening of the left shoulder symptoms is consistent with this. I regard the causation issue, in respect of the left shoulder, as less straightforward than the right. However, given the onset of such symptoms prior to 1999, their presence periodically through 1999 and 2000, in part activity related, and the ongoing activity related symptoms thereafter, I accept the view of Dr Bencsik, supported by that of Dr Biggs, that ongoing aggravation due to the work duties has occurred. To the extent that this issue was finely balanced, the admission by the Railways, inherent in the award to which it consented, tips the balance in the Appellant Worker’s favour. Thus I find the effects of injury, by way of aggravation of the left shoulder condition, also are continuing.
The Weekly Entitlement
It was agreed between the parties the Appellant Worker was paid weekly compensation on a voluntary basis up to 12 June 2006 (T12.35), and the weekly claim commences from that date. The medical evidence supports the proposition the Appellant Worker, although unfit for the full duties of a fettler, carried out by him prior to 1999, has a residual capacity to perform lighter work. It was agreed the weekly amount the Appellant Worker would probably have been earning but for injury, in the same or some comparable employment (the upper end of the section 40 equation – section 40(2)(a)) was $850.00 (T12.30).
The Appellant Worker has not been in employment, or actually earning, since 12 June 2006. Accordingly it is necessary I determine the average weekly amount the Appellant Worker would be able to earn in some suitable employment (the lower end of the section 40 equation – section 40(2)(b)), since 12 June 2006. Section 40(3) requires that I do so by reference to the general labour market reasonably accessible to him, and having regard to the matters set out in section 43A.
Dr Bencsik thought the Appellant Worker unfit for work as a fettler, but fit for work as a rail or track patrolman provided he did not have to do heavy lifting. Dr Biggs, in his report of 2 August 2006, thought the Appellant Worker fit for light work duties only, and permanently unfit for work involving repetitive lifting, pushing or pulling using either of his arms. Dr Nashed, reporting on 9 May 2003, thought the Appellant Worker should avoid repetitive lifting or restrictive tasks, upper limb activities at or above shoulder height, and lifting in excess of 7.5 kilograms (floor to waist) or 5 kilograms (waist to chest). Dr Gothelf’s report of 25 September 2006 indicates the Appellant Worker is “unable to perform any heavy labour duties”, and is “not fit for his pre-injury employment”. He thought the Appellant Worker could carry out duties with no lifting above five kilograms, no work in front of his body or overhead lifting. Dr Rimmer on 28 August 2006, thought the Appellant Worker fit only for “non-lifting work”.
The Work Directions report dated 15 April 2002 records the Appellant Worker was educated in Fiji to year 10 level, and had satisfactory reading, writing and numeracy skills. I note he worked with the Railways for a period of approximately twenty-six years. Before this, he worked for Ashfield Council on “outside maintenance and road work”. He has certificates in track patrol, health and safety, and electrical awareness. He has licences to operate a forklift, a bobcat, and track machinery and vehicles. Although he clearly has obtained some skills during his working life in Australia, his working background is predominantly in physical work. He was born on 19 March 1946, and is now sixty-one years of age. Notwithstanding his many years in Australia, it is noteworthy Dr Rimmer, on two separate consultations, found history taking “very difficult” due to the Appellant Worker’s “poor command of English language” (report 28 August 2006 at P 2.3). He resides in the Sydney metropolitan area, which would represent the labour market reasonably accessible to him.
Although the Railways made lighter work as a patrolman available for a number of years, the requirements of the duties expected of the Appellant Worker having changed, such suitable duties are no longer available to him, it is not suggested through any fault on his part.
At the arbitration hearing, it was submitted, on the Appellant Worker’s behalf, that he would be fit for light labouring work, with an ability to earn of about $400.00 to $500.00 per week. The Railways submitted the Appellant Worker could work as a bobcat or forklift operator, in a labouring position in parks and gardens, as a carpark attendant, club doorman, console operator in a service station, or toll collector. It was submitted such positions would probably pay somewhere in the range of $850.00 to $900.00 per week for bobcat or forklift work, and $600.00 to $700.00 per week for the other positions (T25 to 26).
Having regard to his age, education, working experience, and poor English language skills, the work for which the Appellant Worker would be suited, on the reasonably accessible labour market, with restricted use of both arms for lifting, repetitive work, and work above shoulder height, is limited. Whilst positions such as shop assistant work may be physically suitable, providing they did not involve heavy lifting or overhead work in shelf stacking or the like, the Appellant Worker’s lack of experience, age and English language difficulties would be a barrier to such work. The same comment could be made of such other of the suggested positions as involve dealing with the public, such as club doorman, or car park attendant. There would probably be some positions in process or assembly work which would be suitable, although many such positions would require manual handling and lifting outside the restrictions placed upon the Appellant Worker. The duties of a console operator frequently involve carrying heavy cartons of product to stock shelves and fridges, and overhead activity stacking shelves. Labouring in a parks and gardens setting would be likely to involve both lifting and (possibly) overhead work outside the restrictions placed upon the Appellant Worker. The Railways’ counsel fairly conceded positions such as forklift driving may well include lifting duties (T25.45). Furthermore, although the Work Directions report indicated the Appellant Worker had tickets in bobcat and forklift operating, the available work history does not suggest he has worked in either of these occupations in recent times, if ever. His duties at the Railways over the last twenty-six years (approximately) have been as a fettler, and then a patrolman.
There would probably be some positions in light assembly or process work, perhaps also making some use of his forklift ticket, which would be suitable for the Appellant Worker. Such positions, when available, would probably produce earnings of about $700.00 per week. However having regard to the Appellant Worker’s age, lack of experience in such occupations, and education (including his English language difficulties, identified by Dr Rimmer), and the significant physical restriction in use of his arms, he is likely to experience difficulty in both obtaining and retaining such positions. In determining the Appellant Worker’s ability to earn in some suitable employment, it is appropriate that I have regard to the likelihood of earnings from such employment being affected by intermittency of employment. In Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 Neilson J said:
“Therefore, the number of jobs which she could hold down has been reduced. That reduction means that if the applicant finds herself unemployed, it is harder and would take longer to obtain suitable employment – that is, employment suitable to a lady with her disability in her dominant left arm.”
It is appropriate the figure of $700.00 per week be reduced to reflect the effect of intermittency of employment on the Appellant Worker’s ability to earn. In my view, he would be unlikely to obtain work suitable for him for more than three quarters of the time, and the figure of $700.00 should be reduced accordingly. Thus I find the Appellant Worker’s ability to earn in some suitable employment is an amount of $525.00 per week.
The difference between the upper and lower limbs of the section 40 equation is a sum of $325.00.
The Railways submitted any award pursuant to section 40 should be reduced for discretionary reasons, having regard to an unrelated problem in the Appellant Worker’s left knee, resulting from a motor vehicle accident in about 1997 (referred to in Dr Nashed’s report dated 2 July 2003). When the Appellant Worker was examined by Dr Gothelf on 15 September 2006, he gave “left knee dislocation” as a reason why he was not working, in addition to his shoulder problems.
There is not a great deal of evidence dealing with the left knee condition. Dr Nashed’s report refers to an X-ray showing a healed fracture through the tibia, and some degenerative change affecting the patella. Dr Nashed thought the Appellant Worker’s duties at the Railways had aggravated the condition, however this allegation did not form part of these proceedings. Dr Nashed’s report of 2 July 2003 does not necessarily suggest incapacity for work resulted from the knee condition, at that time. Dr Gothelf’s report recorded, as a matter of history, the Appellant Worker was “currently off duty secondary to a left knee dislocation”. It does not say when this occurred, whether it was in any way a continuation of earlier problems resulting from the motor accident, or how long the knee had been incapacitating. Dr Gothelf did not examine the knee. It may have been a short, discrete episode, with no long term consequences. The state of the evidence regarding the left knee, and whether it has been incapacitating (other than on the day of the consultation with Dr Gothelf), does not satisfy me it is appropriate to make any reduction in the award to which the Appellant Worker is otherwise entitled, on the basis of the discretion in section 40. There are no other bases which would require the amount of compensation awarded be reduced for discretionary reasons.
DECISION
The decision of the Arbitrator dated 18 June 2007 is revoked and the following decision is made in its place:
1.That the Respondent Employers pay the Appellant Worker weekly compensation pursuant to section 40 of the 1987 Act in the amount of $325.00 from 12 June 2006 to date and continuing.
2.That the Respondent Employers pay the Appellant Worker’s expenses pursuant to section 60 of the 1987 Act.
3.That the Respondent Employers pay the Appellant Worker’s costs of the proceedings before the Arbitrator.
4.The Registrar be invited to refer the degree of permanent impairment to an approved medical specialist to be selected by the Registrar, in accordance with these Reasons.
The Respondent Employers are to pay the costs of the Appellant Worker of this appeal.
Michael Snell
Acting Deputy President
28 November 2007
I, MELANIE CURITN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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