Velevski v Auburn City Council
[2008] NSWWCCPD 83
•8 August 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Velevski v Auburn City Council [2008] NSWWCCPD 83 | |||||
| APPELLANT: | Durcin Velevski | |||||
| RESPONDENT: | Auburn City Council | |||||
| INSURER: | QBE Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | WCC351-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 2 April 2008 | |||||
| DATE OF APPEAL DECISION: | 8 August 2008 | |||||
| SUBJECT MATTER OF DECISION: | Weight of evidence; Dupuytren’s contracture, aggravation of disease, and section 4(b)(ii) of the Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Michael Evers and Co. | ||||
| Respondent: | Moray & Agnew | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination dated 2 April 2008 is revoked and the following findings and orders are made: 1) Mr Velevski suffered injury by way of aggravation of a disease, namely, Dupuytren’s contracture in both hands pursuant to section 4(b)(ii) of the Workers Compensation Act 1987. 2) The deemed date of injury under section 16 of the 1987 Act is 22 November 2006. 3) The matter is referred to the Registrar for referral to an Approved Medical Specialist for assessment under section 66 of the 1987 Act. 4) The parties have 14 days liberty to apply in respect of the deemed date of injury. 5) The Employer is to pay the Worker’s costs as agreed or assessed. The Respondent pay the Appellant’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
Mr Velevski (‘the Appellant/Worker’) is a 61 year old labourer who was born in Macedonia and migrated to Australia in 1970. In 1987 he commenced work in the parks and garden section of Auburn City Council (‘the Respondent/Employer/the Council’) where he remains employed fulltime.
Throughout his employment at the Council, Mr Veleski used blowers, mowers, whipper snippers, saws and secateurs. In about 1994 he alleges that he initially experienced pain in his left hand after holding the handles of vibrating machines for long periods. He alleges that his symptoms gradually worsened over time, especially after physical work and using vibrating machines. Mr Velevski’s general practitioner, Dr Luong, diagnosed bilateral Dupuytren’s contractures on 21 April 2006.
On 16 May 2006, Mr Velevski made a claim for compensation as a result of injury to both hands during the course of 19 years employment with the Council and nominated a date of injury as 7 April 2006. The Council declined liability for the claim on the basis that Mr Velevski had not suffered a work injury, or alternatively, under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’), that his employment was not a substantial contributing factor to the injury.
On 21 January 2008, Mr Velevski filed an Application to Resolve a Dispute (‘the Application’), in the Workers Compensation Commission (‘the Commission’), claiming lump sum compensation under section 66 in respect of 5% whole person impairment as a result of injury to both hands. The nominated date of injury in the Application was 7 April 2006.
The matter was listed for conciliation and arbitration hearing on 28 March 2008. Whilst there was no dispute between the parties that the worker suffered from bilateral Dupuytren’s contractures, liability and causation remained in issue and the matter proceeded to hearing. Both parties were represented and made submissions before the Arbitrator who delivered an ex tempore decision at the conclusion of the hearing.
The Arbitrator concluded that he was not satisfied on the balance of probability that the condition was work related, or that Mr Velevski’s employment was a substantial contributing factor to the injury, and made an award for the Respondent Employer. A Certificate of Determination recording the orders, issued on 2 April 2008. The Arbitrator’s reasons for his decision are contained in a transcript of the proceedings, a copy of which has been provided to the parties. It is from this decision that the Worker, Mr Velevski now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 2 April 2008 records the Arbitrator’s orders as follows:
“The orders made are as follows:
1.Award for the Respondent.
2.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
1. finding that work was not a substantial contributing factor (to the injury) under section 9A of the 1987 Act;
2. finding that the Worker’s medical evidence was not sufficient to take the ‘possible casual link’ between the Worker’s injuries and his employment to a ‘more probable than not’ causal link (section 4 of the 1987 Act);
3. failing to properly apply the principles in Tubemakers of Australia Limitedv Fernandez (1976) 10 ALR 303 (‘Fernandez’);
4. failing to give sufficient weight to the Worker’s medical evidence of Dr Giblin;
5. giving weight to the evidence of Dr Stapleton, whose reasoning for his opinion failed to comply with the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’), and
6. providing none or inadequate reasons for preferring the Respondent’s medical evidence over the Worker’s medical evidence.
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 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.
LEAVE
Monetary Threshold
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 quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case and the Arbitrator’s findings and orders result in the Worker receiving no compensation and therefore, the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was initially filed on 23 April 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act, but was returned to the Appellant’s solicitor on 24 April 2008 due to a failure by the Appellant’s solicitor to sign a certification as to the reasonable prospects of an appeal. The appeal was refiled on 29 April 2008, which was again within 28 days of the Arbitrator’s decision.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence.
EVIDENCE AND SUBMISSIONS
At the arbitration hearing, Mr Velevski relied on a signed statement dated 21 November 2006. He stated that throughout his employment with the Council he used machines including blowers, mowers, saws, secateurs and whipper snippers. In 1994 he experienced left hand pain after holding vibrating machines for long periods in the course of his employment. He also stated that he experienced increasing pain in both hands especially after physical work and using vibrating machines at work. Further, he stated that neither his father nor his two grandfathers had contractures or hand conditions.
Mr Velevski lodged a claim form on 16 May 2006, claiming bilateral hand pain after using snippers, blowers and lawn mowers over 19 years of work at the Council. He nominated a date of injury as 7 April 2006 and indicated that he had reported the injury to Mr Danny Brown.
In support of his claim Mr Velevski relied on a report from his general practitioner, Dr Luong, dated 25 October 2007, a number of WorkCover Medical Certificates from Dr Luong and two medico-legal reports from Dr Giblin dated 27 September 2006 and 28 November 2006.
Dr Luong, in his report dated 25 October 2007, noted that Mr Velevski consulted him on 21 April 2006 complaining of pain in his right thumb and in the other fingers of his left hand. The doctor recorded a history that Mr Velevski had used vibrating machines, including lawn mowers, whipper snippers and leaf blowers since the commencement of his employment with the Council in 1987. The work duties required tight gripping with his hands and caused constant pressure on his hands and arms. Over the years Mr Velevski noticed increased pain and thickening on his hands and fingers.
The doctor certified Mr Velevski unfit for work on the day of the consultation and prescribed analgesic and anti inflammatory medication and acupuncture. He reviewed the Worker on a number of occasions between 25 April 2006 and 25 May 2006.
Dr Luong made a provisional diagnosis of “Dupuytren’s contracture (soft tissue injury to hands related to work) of both hands.”
Further, the Doctor concluded that:
“The vibration of the machinery used increased the thickness and tenderness in the palm of the [sic] both hands and restricted the range of motion of his both hands” (page 3, report dated 25 October 2007).
Dr Luong noted that Mr Velevski had reduced grip strength in his left hand and restricted range of motion and stiffness in his right hand. He concluded that the prognosis was guarded if Mr Velevski continued to work with equipment that exerted pressure and vibration on a daily basis and that the pain in his hands would worsen with:
“the physical nature [of his work] and vibrations from the equipment used.”
Dr Luong provided a number of WorkCover Medical Certificates. In a certificate dated 21 April 2006, he recorded a diagnosis of lower back pain and contractures in both hands and certified the Worker unfit for work on 21 April 2006.
In three certificates dated 22 April 2006, the doctor referred to “old contractures in both hands getting worse” and certified the Worker fit for selected duties from 25 April 2006 to 25 May 2006. Two other certificates of the same date make reference to a low back injury in addition to the hand condition. The restricted duties detailed on the certificates presumably relate to both the hand condition and the back injury, and included a lifting restriction of 10kg, no bending, pushing or pulling, no standing greater than 4 hours, and keying restricted to less than one hour.
Dr Giblin examined Mr Velevski at the request of his solicitors. In his report dated 27 September 2006, the doctor noted Mr Velevski is right handed. Dr Giblin recorded a history of the Worker experiencing pain in the ulnar border of his left hand associated with thickening and clawing of his little finger. In 1997 he noticed thickening and tenderness in the palm of his right hand. Over the years the thickening spread towards the right thumb and the other fingers on the left hand. The doctor noted the Worker had a previous history of cutting his right palm with glass in 1973, which was a relatively minor and superficial injury. Mr Velevski reported no other symptoms or injuries with his hands.
Dr Giblin recorded that the primary complaint was stiffness in the fingers at night and intermittent pain in the palm of the hand around the thickened areas and intermittent pins and needles. He also recorded that Mr Velevski’s symptoms worsen with physical and vibrating activities and he has reduced grip strength in his left hand.
On physical examination, Dr Giblin noted marked Dupuytren’s contractures in the left hand and only a degree or two reduced range in some fingers on the right hand, but no sign of intrinsic muscle wasting. He examined his feet and found there was no sign of Dupuytren’s contractures in his feet. Dr Giblin assessed a 5% whole person impairment.
Dr Giblin, “based on his history and examination” made a provisional diagnosis of:
“work related soft tissue injury to his hands, consistent with the diagnosis of Dupuytren’s contracture.”
In his second report dated 28 November 2006, Dr Giblin referred to and commented on the evidence of Dr Stapleton, the Council’s medical expert. He confirmed that Dupuytren’s disease is “certainly a well proven and documented genetic condition.” Further, Dr Giblin remarked:
“It is widely held to be a non-painful condition. For the most part this is true, but there are times when it can be sufficiently painful to keep a patient awake at night and these episodes, are frequently predicated upon the use of [sic] trauma to the hands such as a manual labourer might engage in, or, a person might be found with vibrating machinery.
The pain, in itself is an indication of an underlying inflammatory condition which per se can only be caused [by] any [sic] trauma. Therefore, I view his work environment as being a significant aggravating condition to the underlying genetic disease…
The opinion concerning trauma as a significant aggravating factor is predicated upon my own clinical and personal experience.”
The Respondent relied upon two reports from Dr Stapleton, a hand, plastic and reconstructive surgeon, dated 17 May 2006 and 16 January 2007, together with the discussion paper from Dr Hurst dated July 2002.
Dr Stapleton prepared his report dated 17 May 2006 after examining the Worker. Dr Stapleton confirmed the diagnosis of Dupuytren’s disease. He noted that it is an inherited problem, even though the Worker had no knowledge of a family history or any of the known aggravating factors such as diabetes, epilepsy or alcoholism.
Dr Stapleton obtained a history of the problem commencing nine years ago and that Mr Velevski’s left hand is worse than his right hand. The doctor noted that at the time of his examination, Mr Velevski had not been referred to a hand surgeon and that whilst he was working fulltime he had modified his duties to predominantly use his right hand, but that he moves tools to the left hand if discomforted. He noted on examination that there was “profound contracture” of the left little finger. The doctor recommended surgery on both hands and noted that the condition limited the Worker’s capacity to carry out his full duties.
Dr Stapleton expressly stated that the condition was inherited and that it was not work related and that the Worker had not suffered an aggravation of an underlying condition. Further he stated that employment was not a substantial contributing factor, either by way of causation, or by way of aggravation.
Dr Stapleton referred to the literature of Dr Huesdton’s [sic- Hueston] who, Dr Stapleton stated, “categorically indicated that this was not a problem related to trauma”
In his report of 16 January 2007, Dr Stapleton added:
“This is well known to be a condition of gradual process and therefore I hold the view as Dr Hueston has published, that it is not related to occupation. I accept that this is a condition which draws opinions both in favour and against trauma being involved but I hold strongly with the Hueston view.”
Dr Stapleton stated:
“I do not believe that Dupuytren’s contractor [sic – contracture] is related to trauma. It is true as Dr Giblin has suggested that because of the proximity of the underlying sensory nerves to the pathological process that gripping or trauma causes the patient to suffer pain. That does not address the question in my view of ongoing aggravation of the problem. All that does, in my opinion is draw attention to the fact that gripping is a problem because of the underlying sensory nerves being involved in a pathological process and any pressure on the palmer skin would aggravate the pain.”
Annexed to the Reply was a discussion paper, Dupuytren’s Contracture, prepared for the Workplace Safety and Insurance Appeal Tribunal of Ontario, Canada and authored by Dr Lawrence N. Hurst, a specialist in plastic, reconstructive, hand and microsurgery, dated July 2002.
Dr Hurst commented briefly on the work of other authors concerning the incidence of the disease. Whilst there are footnote or end note references to other authors’ work throughout the discussion paper, the footnotes or end notes were not attached to the document filed by the Respondent, and, other than the surnames of the authors referencing certain statements or conclusions, there are no further identifying details about the authors or their studies available. The relevant passages extracted from page 5 of Dr Hurst’s discussion paper are as follows:
“Trauma is often cited as a causative agent, but McFarlane (6) believes that evidence from epidemiological studies is insufficient to support this conclusion in most cases. However, a casual relationship may be considered in young patients who develop Dupuytren’s Contracture within two years of sustaining a single injury.
In 1996 Liss and Stalk (7) reported that there is good support for an association between vibration exposure and Dupuytren’s disease, but weaker evidence for an association with manual work. McFarlane thoroughly reviewed all the papers that have related both vibration exposure and manual work to Dupuytren’s disease and concluded that vibration injury has only a possible relation and that a relation to manual work is unproven. This information is documented in the report “Dupuytren’s Disease: The Relation to manual Work, Vibration Exposure and a Single Injury to the Hand”. This was an updated requested by the Workmen’s Compensation Appeals Tribunal submitted by Dr. Robert M. McFarlane, December 1996.
Microtrauma is a term coined by Dr. Skoog in 1948 to draw attention to micro ruptures in the palmar fascia. He regarded them as a result of multiple injuries contributed to by hard work. Larson in 1960 found the same histological pattern in experimental ruptures of the palmar fascia in apes as in Dupuytren’s disease in man, but none of the apes developed a finger contracture. Consequently, the study was unable to show that microtrauma has any relationship to Dupuytren’s contracture. Dupuytren’s contracture and carpal tunnel syndrome can occur in the same patient; however, no cause and effect relationship has even been shown between the two diseases.” (emphasis added)
The discussion paper of Dr Hurst notes that trauma is often cited as a causative agent of Dupuytren’s contracture, however, the evidence from epidemiological studies “is insufficient to support a conclusion in most cases”.
The reference material prepared by Dr Hurst, which was produced, cites Dr Hueston, but not in the context cited by Dr Stapleton.
At the arbitration hearing, Mr Smith, Counsel for the Worker, submitted that both Drs Luong and Giblin accepted that the Dupuytren’s contracture was work related, “in that there was an underlying condition that was aggravated by the use of vibrating machines” (transcript page 1, line 53).
Mr Smith relied on the discussion paper of Dr Hurst and the other authors cited in that paper that assisted him, particularly McFarlane, who concluded that exposure to vibration has a possible relationship to the development of the condition (see transcript page 2, line 35). Mr Smith submitted that this, together with both the GP, Dr Luong’s and Dr Giblin’s conclusions, provide sufficient evidence to support a finding that work was a substantial contributing factor to the Appellant’s injury.
Mr Smith submitted (transcript page 7, line 28-33):
“So it’s not just the possibility, but if there are other factors there that can support that, then you’re entitled to find it, and, in my submission, those other factors are there. There is the use of the vibrating machinery and no other related factors or history to go on.”
Mr Morgan, Counsel for the Council, submitted that the Worker developed the condition in his fifth decade, consistent with the classical presentation referred to by Dr Hurst. Mr Morgan conceded that neither Dr Giblin, nor Dr Stapleton, explained how they reached their conclusions. Whilst Dr Hurst’s discussion paper provides the opinion that it is possible that work plays a role, that is not sufficient to establish on the balance of probability that “work played a role” (transcript page 5, line 49).
Mr Morgan therefore concludes at transcript page 5-6, lines 51- 3:
“Unfortunately, it would be my submission, and certainly the respondent’s submission, that the worker hasn’t overcome the onus it [sic-he] has to establish to your satisfaction on the balance of probabilities that the work has played a role in the aggravation of what everyone accepts is a genetic condition. It certainly comes down to you accepting effectively the first discussion paper and, in the background, Dr Stapleton’s supplementary report. If you don’t accept that, that’s the end of the matter and the worker would be referred off to an AMS.”
Further, Mr Morgan submitted that Dr Stapleton accepts that:
“… while work may cause temporary periods of pain, once that pain or the aggravating factor is taken away the condition remains, and while pain itself might bring the condition to the attention of [inaudible], the pain that work causes, being vibration to a painful condition, doesn’t make a substantial or material contribution to the progression of the disease. I think that statement before you says it’s the pain or the work that he’s doing which brings it to the worker’s attention, it’s neither caused by work nor does that pain he experiences at work ‑ that the worker experiences ‑ contribute to the deterioration or aggravation of the condition.” (transcript page 6, limes 32-44)
ARBITRATOR’S DECISION
In considering the evidence before him, the Arbitrator referred to Fernandez and stated that the test that he was required to apply was whether the evidence was such as to carry the causal relationship between the work and the disease from the ‘possible’ to the ‘probable’.
The Arbitrator found both parties’ medical evidence unpersuasive. He noted that Dr Stapleton was of the opinion that in the presence of a disease, employment tasks could cause pain, but this did not “mean that it causes the disease or causes any aggravation of it” (transcript page 9, line 6). He also noted that whilst Dr Stapleton expressed the view that that Dupuytren’s contracture is not a work related condition, the doctor did not specifically address the impact, if any, of exposure to vibrating machines.
The Arbitrator reviewed the discussion paper prepared by Dr Hurst and concluded that the references in that document relating to the casual connection between vibrations and the disease were insufficient to raise the relationship from the possible to the probable.
The Arbitrator then turned to consider Dr Giblin’s first report in which the doctor expressed an opinion on a provisional diagnosis of “work – related soft tissue injury”, and found the report deficient. He noted however that Dr Giblin’s second report did deal with all the issues, but he added:
“…[Dr Giblin] uses the phrase ‘a significant aggravating factor’, which perhaps carries the matter far enough to satisfy section 9A, but with [sic-out] apparently attempting to refute Dr Stapleton’s comments about the cause of pain, he says that pain in itself is an indication of an underlying inflammatory condition, which, per se, can only be caused by trauma, but that doesn’t appear to meet Dr Stapleton’s point. Pain might be caused by trauma but the same trauma doesn’t necessarily aggravate the underlying condition” (transcript page 10, lines 27-35).
The Arbitrator found at page 10, line 36 – 54, and page 11, lines 1-10 of the transcript:
“So when Dr Giblin goes on to say, ‘Therefore, I view the applicant’s work environment as being a significant aggravating condition,’ this seems to be something of a non‑sequitur. Certainly ‑ and this is my area of concern ‑ regardless of the 9A issue, there’s nothing in Dr Giblin’s medical report which appears to carry the matter from possible to more probable than not. Even if I was tempted to have the opposite view, it does seem to me, as the respondent submitted, that there are substantial difficulties with the reports of both Dr Stapleton and Dr Giblin in satisfying myself as an Arbitrator how they logically argue the conclusions that they come to. They both get fairly close to taking the ipse dixit view commented on in the Hevi Lift case and Edmonds’ case, and, of course, if both medical reports are deficient in this regard, then it’s the applicant who, unfortunately from his point of view, suffers as a result of it.
Regardless of that, however, ultimately it seems to me that the applicant could only succeed in this matter if I could be satisfied on the balance of probabilities that vibration was more probably than not the cause of the condition he suffers from. I have no doubt that the applicant does genuinely suffer from this disease and he comes here as a genuine person not attempting to exaggerate it but, unfortunately, on the evidence before me today, I’m not able to be satisfied beyond a reasonable doubt [sic- balance of probability] that the vibration which I have referred to is both work‑related and a substantial contributing factor to the injury that the applicant unquestionably suffers.” (emphasis added)
SUBMISSIONS ON APPEAL
On appeal the Appellant submits that:
a. Dr Giblin’s reports provide “ample” proof to establish a probable casual link between his injury and his employment. The doctor’s opinion was clearly expressed in his two reports.
b. There was “more than sufficient evidence” to establish a probable causal link as between the worker’s employment and his injury as follows:
i.the absence of “standard aggravating factors” including a family history, diabetes, alcoholism or epilepsy
ii.the Appellant’s employment history and his use of vibrating machinery
iii.the onset of symptoms during the course of his employment with the Respondent
iv.the Respondent’s medical evidence, which in part concedes a possible causal link between vibration and the onset of Dupuytren’s disease, and
v.the opinions of Drs Luong and Giblin, “that work was a substantial contributing factor the appellant’s injury”.
c. Any comment by the Arbitrator suggesting that the reports of Dr Giblin did not meet the requirements of Makita is without foundation because:
“ In his report dated 27 September 2006 Dr Giblin provides a diagnosis ‘based on his [appellant’s] history and examination’. The history given to Dr Giblin is fully particularised in his report, as are the details and findings of his examination of the appellant.”
d. Dr Giblin’s opinion that trauma is a significant contributing factor is “predicated upon [his] own clinical and personal experience.”
e. Dr Stapleton simply states that he agrees with the views of Dr Huesdton (Heutson), but fails to provide any reasoning as to why he disagrees that trauma or repeated exposure to vibration could be a causative factor of Dupuytren’s contracture.
f. Dr Stapleton failed to provide any reasoning in denying that Mr Velevski’s employment with the Respondent was a substantial contributing factor, after noting the absence of any known aggravating factors.
g. There are inconsistencies between Dr Stapleton’s two reports. In the report dated 17 May 2006 the doctor expresses his opinion that the Worker has not suffered an aggravation of a previous underlying condition but does not provide any reasoning to support this conclusion. In the report dated 16 January 2007, the doctor concedes that gripping or trauma causes pain and the Worker’s history of use of manual vibrating machinery involves gripping.
h. Dr Stapleton concedes that Dupuytren’s contracture is a condition, which draws opinions both in favour, and against, trauma being involved and he provides no reasoning as to why he does not believe that trauma can be involved and simply dismisses it by agreeing with another doctor, namely Dr Huesdton (Hueston).
i. The Arbitrator provided no reasons as to why he preferred the evidence of Dr Stapleton to that of Drs Giblin, Luong and Hurst. The Arbitrator did not indicate which evidence, from the doctors, he either accepted or rejected.
The remedy sought by the Appellant is to have the decision revoked, an award be entered in favour of the Appellant and a referral to an Approved Medical Specialist for assessment.
In reply the Council submits that:
a. The Arbitrator traversed all the medical evidence and submissions. He made specific reference to Fernandez and correctly applied the principles in Fernandez.
b. The Arbitrator was correct in accepting the Respondent’s submission that he could not be satisfied on the balance of probability that there was a “connection between the workplace involvement and the condition suffered by the worker.”
c. The Arbitrator found that Dr Giblin’s report dated 27 September 2006 was deficient in relation to causation but he found that Dr Giblin’s report dated 28 November 2006 dealt satisfactorily with all of the issues including causation and it was open to the Arbitrator to find that the Worker had not established the nexus.
d. It was open to the Arbitrator to accept Dr Stapleton’s opinion based on the content of his report and Dr Stapleton’s reliance on relevant literature as to causation.
e. Dr Stapleton’s methodology and reliance upon the literature was an appropriate answer to the Worker’s allegations.
f. It was open to find that Dr Stapleton’s reference to trauma includes vibration. Dr Giblin in his report dated 28 November 2006, commenting on Dr Stapleton’s report refers to vibrating machinery and “indicates that pain itself could only be caused by ‘any such trauma’”.
The Council seeks that on appeal the Arbitrator’s decision is confirmed.
DISCUSSION AND FINDINGS
The definition of ‘injury’, is set out in section 4(b)(ii) of the 1987 Act:
“In this Act:
injury:
(a)means personal injury arising out of or in the course of employment,
(b)includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)…” (emphasis added)
The test to be applied in determining injury under section 4(b)(ii), is that set out by the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 11 CLR 626 (‘Federal Broom’), where Justice Kitto said, at 635:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’”.
The alleged injury post dates 12 January 1997, when section 9A was inserted into the 1987 Act, and therefore the employment must also be a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration, not to the disease process overall (see Murray v Shillingsworth [2006] NSWCA 367 at [64]).
There is no dispute that the Worker suffers from Dupuytren’s contracture in both hands, the left worse than the right, and that that condition is a disease (Perry v Tanine Pty Ltd t/as Ermington Hotel & Others [1998] NSWCC 14; 16 NSWCCR 253). The causal link between the condition and the aggravation was the only issue for determination at the arbitration hearing. The Council denied liability on the basis that the Worker had not suffered an injury and that his employment was not a substantial contributing factor to the injury (sections 4 and 9A).
Both Dr Giblin and Dr Stapleton expressed opinions that Dupuytren’s contracture is an inherited condition. The arbitration hearing was conducted on the basis that the condition is a disease. To establish injury, Mr Velevski was required to prove, on the balance of probability, that his employment had been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, under section 4(b)(ii) and 9A of the 1987 Act (see [30] above).
The Appellant’s case before the Arbitrator was that the condition was aggravated or accelerated by the repetitive use of vibrating tools, which Mr Velevski was required to use in the course of his employment with the Council. The Council refuted this claim, relying on the opinion of Dr Stapleton that he suffered from an inherited condition, and trauma played no part.
The Appellant’s grounds of appeal assert error in the Arbitrator’s reasoning, findings and orders that the Worker had not met the requirements of sections 4 and 9A of the 1987 Act to establish injury, error in the weight he applied to the available evidence and error in failing to give adequate reasons. However, the Appellant’s submissions in support of these grounds of appeal are principally directed to the Arbitrator’s treatment and assessment of the evidence. The Appellant submits that, contrary to Arbitrator’s findings, there was ample evidence to establish the requisite causal link between the Worker’s condition and his employment to find in favour of the Worker on the issue of injury.
As noted in [52] above, the Arbitrator directed himself that the Worker was required to satisfy the Commission that the exposure to vibrating machines at work was “the cause of the condition” (transcript page 11, line1), which ignored a consideration of whether the evidence established an aggravation, acceleration, exacerbation or deterioration of the underlying disease.
The Arbitrator was required to consider and weigh the whole of the available evidence to determine whether the Worker had suffered an aggravation of a disease, as discussed by the High Court in Federal Broom. In addition he had to determine that his employment was a substantial contributing factor to the aggravation or acceleration of the disease (see Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (‘Cant’)). If injury was found, he was also required to determine whether the effects of that injury were continuing.
The Arbitrator did not weigh the evidence as required to apply the legal tests as set out in Federal Broom and Cant. His statement that the Worker was required to establish his employment was “the cause of the condition” was incorrect and requires that the matter be redetermined.
Redetermination
Having revoked the Arbitrator’s decision and upheld the appeal it is desirable, where appropriate, that a Presidential member finally determine the matter (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). I have the transcript of the submissions made at arbitration hearing, and on appeal, and the evidence relied upon by the parties. No oral evidence was called at the hearing and the Worker’s credit is not in issue. In my view, it is appropriate I redetermine the matter.
As previously noted at [65] above, the issue for determination is whether the Worker suffered injury by way of an aggravation, acceleration, exacerbation or deterioration of the underlying Dupuytren’s contracture and whether his employment was a substantial contributing factor to the injury.
In dealing with this issue in Cant at 93, Judge Burke quoted from, and applied, Windeyer J in Federal Broom:
“Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639 posed the essential question of whether there has been a relevant aggravation, acceleration, exacerbation or deterioration of a disease as:
1.The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.
His Honour had previously commented (at 637):
2.I therefore find it impossible to conceive of the malady as distinct from its manifestations.
The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
Dr Giblin concluded that the work environment (that is, manual labour operating vibrating machinery) aggravated the underlying inflammatory (genetic) condition (see [30] above).
Whilst the Arbitrator concluded that the opinions of both doctors “get fairly close to taking the ipse dixit view commented on in the Hevi Lift case and the Edmonds case”, on a fair reading of Dr Giblin’s report, I am satisfied that he has provided a basis for the opinion he expressed. His opinion is based on the following:
a. his experience that whilst Dupuytren’s contracture is generally non‑painful there were cases where it was sufficiently painful to keep patients awake at night, particularly in cases such as that of Mr Velevski;
b. that the condition itself is a demonstration of an underlying inflammatory condition;
c. that the underlying inflammatory condition can be aggravated by work such as that undertaken by Mr Velevski, and
d. his clinical and personal experience.
Dr Luong, the Worker’s general practitioner, also expressed the view that Mr Velevski’s working conditions had aggravated the underlying genetic disease. He explained that the vibration of the machinery had increased the thickness and tenderness in the palms of both hands and restricted the range of motion of both hands. He noted that the pain was worse when using vibrating equipment. In other words, the work made the disease more serious in its effect upon the Worker (Windeyer J in Federal Broom).
Dr Stapleton accepts that gripping or trauma causes the patient to suffer pain. This is because of the proximity of the underlying sensory nerves to the pathological process when gripping. “Any pressure on the palmer skin would aggravate the pain.” He goes on to opine that “when the gripping stops the pain stops”.
Dr Stapleton has not explained how this theory is to be reconciled with the evidence in this case, in that the Worker complains of ongoing pain long after the gripping has stopped. Mr Velevski reported to Dr Giblin that his chief complaint is stiffness in the fingers at night and intermittent pain in the palm around the thickening areas. He also reported pins and needles in the fingers. The Worker reported that the symptoms were worse with physical and vibrating activity and added that, at the end of the day, his hands are always symptomatic. Mr Velevski was not challenged on the complaints of pain and discomfort he reported to Dr Giblin and I accept them.
It is clear that Dr Stapleton’s views are heavily influenced by the academic publications of Dr Hueston. Dr Hueston’s publications are not in evidence. Whether he considered a causal connection between an aggravation of the disease and constant exposure to vibration over a long period of time (such as that to which the Appellant has been exposed) is unknown.
On the question of whether the Worker’s condition has been aggravated by his employment, for the reasons stated above, I prefer the opinions of Dr Luong and Dr Giblin who both accepted that the Worker’s condition was aggravated by repeated exposure to vibrating machines, over Dr Stapleton, who declined to recognise any connection whatsoever.
I therefore find, consistent with the reasoning of Burke J in Cant, that the Worker’s symptoms and restrictions have increased and become more serious as a result of his work activities, thus evidencing the relevant aggravation of the disease.
I am therefore satisfied that the Worker’s employment duties of operating vibrating equipment on a daily basis over 19 years aggravated the underlying disease of Dupuytren’s contracture and Mr Velevski has suffered an injury in the form of an aggravation of a disease under section 4(b)(ii) of the 1987 Act.
Counsel for Mr Velevski referred to the High Court decision in Fernandez. Mr Fernandez developed Dupuytren’s contracture after suffering a single traumatic crush injury and the case concerned the sufficiency of evidence to sustain a jury verdict. Given that I am satisfied that the Worker has discharged the onus of proving a causal connection between his employment and the aggravation of the underlying disease, it is unnecessary to further consider the application of the principles in Fernandez.
Both sections 4 and 9A must be satisfied before compensation is payable under the Act.
Turning to section 9A, whether employment has been a substantial contributing factor to the aggravation, must be determined. Section 9A is concerned with the injury and the work activity undertaken at the time the injury is sustained and “it is the strength of the causal linkage that is in question” (Mercer v ANZ Banking Group Limited [2000] NSWCA 138, (2000) 48 NSWLR 740 (‘Mercer’) at [17]). Whether the section 9A test is satisfied is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46).
In cases where the injury consists of the “aggravation, acceleration, exacerbation or deterioration of a disease”, the employment must be a substantial contributing factor to the event giving rise to the aggravation, acceleration, exacerbation or deterioration of the disease, rather than the pathology of the underlying disease itself (see King v Commissioner of Police (2004) 2 DDCR 416 at [57] – [60] and Cant). Accordingly, the question I must ask, is whether the Worker’s employment was a substantial contributing factor to the aggravation of the disease of Dupuytren’s contracture?
On the view of the medical evidence I have preferred, I am satisfied that the Worker’s employment was a substantial contributing factor to the aggravation of his condition. The Worker’s duties were described in detail in his statement and in the medical histories. He carried out such duties on a daily basis over a period of 19 years and Drs Luong and Giblin described a clear causal connection between his duties and the worsening of his condition. I therefore accept that his employment as a labourer with the Council was a substantial contributing factor to the aggravation of the Dupuytren’s contracture.
Having found injury in the form of an aggravation of a disease, it is necessary to determine the deemed date of injury under section 16 of the 1987 Act.
Section 16(1) reads as follows:
“If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) …”
It is open to have more than one deemed date of injury (Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246). In the present matter the only claim is for lump sum compensation. The deemed date of injury is the date on which the Worker made a claim for lump sum compensation. Unfortunately neither party filed a copy of the letter making that claim, however attached to the Application was a letter from QBE, the workers compensation insurer for the Council, dated 4 December 2006, addressed to the Worker’s solicitor. This letter referred to a letter dated 22 November 2006 from the solicitor and gave notice rejecting the Worker’s offer of 5% whole person impairment. Further, on the copy of Dr Giblin’s report dated 27 September 2006, annexed to the Application, there is a hand written notation stating “served 22.11.06”. Therefore, reading these documents together, I infer that the date upon which the claim for lump sum compensation was made was 22 November 2006 and I find that this is the deemed date of injury under section 16(a)(ii) of the 1987 Act.
Neither party has addressed on the deemed date of injury. As I have been required to find the deemed date by inference, and in the absence of submissions, I propose in the orders that I make to grant liberty to the parties to apply in respect of that issue only.
Mr Velevski was certified unfit for one day on 21 April 2006, and fit for suitable duties from 25 April 2006 to 25 May 2006, after which it would appear that he resumed full duties which he continues to perform, albeit with some self imposed restrictions. Pursuant to section 16(a)(ii) of the 1987 Act, I find on the available evidence, that the deemed date of injury is 10 May 2006, the date that the Employer nominated as the date that the claim was made by the Worker.
Before the Worker can be referred to an Approved Medical Specialist for assessment of the claims under section 66 of the 1987 Act, it must be proved that the injury he sustained is permanent. That is that the effects of the injury are continuing. I am satisfied that the report from Dr Luong dated 25 October 2007, establishes that the effects of the injury in the form of an aggravation of the Dupuytren’s contracture are continuing. As noted in [22] above, Dr Luong concluded that following his examination and treatment of the Worker in 2006, he was satisfied that the vibration from the machines Mr Velevski used at work had “increased the thickness and tenderness” in both palms and restricted the range of motion in his hands.
Dr Giblin, in his report dated 27 September 2006 concluded that the Worker had reached maximum medical improvement, from which I infer that the effects of the work injury, being the aggravation of the Dupuytren’s contracture, is permanent and continuing. .
In addition, I note the submission made by Mr Morgan at the arbitration hearing to the effect that if the Arbitrator did not accept Dr Stapleton’s report and the discussion paper prepared by Dr Hurst then “that’s the end of the matter and the worker would be referred to an AMS” (see [46] above).
Having preferred the evidence of Drs Giblin and Luong, over the evidence of Dr Stapleton for the reasons stated in [70] –[76] above, I am satisfied that the effects of the work injury, being the aggravation of the underlying Dupuytren’s contracture in both hands, are permanent and are continuing, and it is therefore appropriate that the Worker be referred for examination by an Approved Medical Specialist.
DECISION
The Arbitrator’s determination dated 2 April 2008 is revoked and the following findings and orders are made:
1) Mr Velevski suffered injury by way of aggravation of a disease, namely, Dupuytren’s contracture in both hands pursuant to section 4(b)(ii) of the Workers Compensation Act 1987.
2) The deemed date of injury under section 16 of the 1987 Act is 22 November 2006.
3) The matter is referred to the Registrar for referral to an Approved Medical Specialist for assessment under section 66 of the 1987 Act.
4) The parties have 14 days liberty to apply in respect of the deemed date of injury.
5) The Employer is to pay the Worker’s costs as agreed or assessed.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
His Hon. Judge Greg Keating
President
8 August 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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