Vereyken Brothers Pty Ltd v Relf
[2010] NSWWCCPD 53
•18 May 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Vereyken Brothers Pty Ltd v Relf [2010] NSWWCCPD 53 | ||||
| APPELLANT: | Vereyken Brothers Pty Ltd | ||||
| RESPONDENT: | Leslie John Relf | ||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-8288/09 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 8 February 2010 | ||||
| DATE OF APPEAL DECISION: | 18 May 2010 | ||||
| SUBJECT MATTER OF DECISION: | Injury; thoracic outlet syndrome; expert evidence; weight of evidence; causation; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | Lee Sames Egan | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 8 February 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST. | ||||
BACKGROUND
The appellant employer, Vereyken Brothers Pty Ltd, conducts a steel fabrication business at Junction Hill near Grafton. The respondent worker, Mr Relf, worked for the appellant as a welder/labourer. His duties involved lifting large pieces of metalwork, welding, grinding, cutting, and loading and unloading equipment from trucks.
In mid May 2007, Mr Relf noticed that his left index finger regularly felt cold. Over the next few weeks, his symptoms progressed and he developed numbness, coldness and discomfort in his left hand and arm. His symptoms seemed worse when he gripped tightly, especially using a grinder.
Mr Relf saw his general practitioner, Dr Fowler, on 1 June 2007. He diagnosed left carpal tunnel syndrome. Nerve conduction studies were consistent with that diagnosis.
Mr Relf’s symptoms continued and he again saw Dr Fowler on 6 August 2007 complaining of a painful cold left hand. Investigations revealed a thrombosis (clot) of his left brachial artery and an abnormality of the left subclavian artery.
Dr Fowler referred the worker to Dr Deepak Williams, vascular surgeon, who confirmed the diagnosis of brachial artery thrombosis and left subclavian artery aneurysm (a localised bulge) associated with a congenital cervical rib and thoracic outlet syndrome. He referred Mr Relf to the vascular unit at Royal Brisbane Hospital where he underwent a resection of the left cervical rib and repair of the left subclavian aneurysm.
In proceedings commenced in the Commission on 13 October 2009, Mr Relf sought hospital and medical expenses in the sum of $11,993.50 together with lump sum compensation in the sum of $10,000.00 in respect of an 8 per cent whole person impairment as a result of his condition. He described his injury as follows:
“Injury to left arm (vascular thoracic outlet syndrome) and ? carpal tunnel syndrome.”
Mr Relf described the injury as having occurred as follows:
“Frequent, heavy and repetitive use of arms in awkward positions, vibration and low temperature exposure. Nature and conditions of employment.”
In a Reply filed on 3 November 2009, the appellant disputed that Mr Relf had sustained an injury to his left arm as a result of his employment with the appellant.
The Commission listed the matter for conciliation and arbitration on 11 December 2009. The appellant called oral evidence from Associate Professor Myers to the effect that Mr Relf’s condition was unrelated to his employment. However, Associate Professor Myers made several concessions in cross-examination that are discussed below. In a reserved decision delivered on 8 February 2010, the Arbitrator found that Mr Relf had “probably aggravated, exacerbated and deteriorated his condition by virtue of the nature and conditions of the work” he did for the appellant (Statement of Reasons (‘Reasons’) at [76]) and, as a result, he found in Mr Relf’s favour.
The Commission issued a Certificate of Determination on 10 February 2010 in the following terms:
“The Commission determines:-
1. The respondent will pay the applicant’s s.60 expenses.
2.I remit this matter to the Registrar for referral to an AMS on the following bases:-
i) Date of injury: 1 June 2007
ii)Matters for assessment: Left upper extremity (thoracic outlet syndrome)
iii) Method of assessment: Whole person impairment
iv) Evidence:-
·Application to Resolve a Dispute plus attached documents;
·Reports attached to Application to Admit Late Documents dated 10 November 2009,
·Statement contained in Application to Admit Late Documents dated 9 December 2009;
·Documents attached to all other Applications to Admit Late Documents are excluded as are Exhibits ‘A’ and ‘B’;
·Reply plus attached documents.
3.The respondent will pay the applicant’s costs as agreed or assessed. I certify the matter as being complex, and order a 30% uplift, applicable to both parties.”
In an appeal filed on 8 March 2010, the appellant sought leave to challenge the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS AND ADDITIONAL EVIDENCE
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant has submitted that the Commission should not deal with the appeal on the papers and it has sought an oral hearing. It argued:
(a)the matter is complex;
(b)it would be appropriate for Associate Professor Myers to give “further oral evidence relevant to the appeal”;
(c)an oral hearing is a right that is consistent with the principles of natural justice and “is fair in the circumstances of this case”;
(d)given the substantial legal rights that will flow from the appeal decision, the interests of natural justice require that it be allowed to address any submissions by Mr Relf and clarify medical issues, and
(e)the grounds of appeal deal with the application of a legal principle in respect of expert evidence.
Mr Relf has submitted the matter is suitable to proceed “on the papers” and opposes the calling of further oral evidence from Associate Professor Myers.
I do not accept the appellant’s submissions.
Whilst the appeal raises medical issues relating to causation, those issues were fully canvassed in the evidence called before the Arbitrator and do not raise issues of such complexity that an oral hearing is required. The appellant has had every opportunity to prepare and submit written submissions in support of the appeal.
The submission that it would be appropriate for Associate Professor Myers to “provide further oral evidence relevant to the appeal” misunderstands the nature of the appeal process. A Presidential member will normally conduct a section 352 review on the evidence called at the arbitration. However, with leave, a party may tender additional evidence or fresh evidence on appeal (section 353(6)).
The appellant has made inconsistent and confusing submissions. Whilst it has submitted that it would be appropriate for Associate Professor Myers to give oral evidence on appeal, it stated that it “does not rely upon any new evidence”. Any oral evidence on appeal would be fresh or additional evidence and, therefore, “new evidence”.
If the appellant is seeking to call additional evidence from Associate Professor Myers, it has failed to comply with Practice Direction 6 in that it has failed to provide a copy of that additional evidence, or provide any explanation as to why the Commission should admit the additional evidence.
The Associate Professor gave extensive and detailed evidence at the arbitration and was cross-examined at length. The appellant has not suggested that his evidence was in some respect deficient or that some injustice has occurred because of any inadequacy in his evidence. The parties canvassed the issues in dispute, and Associate Professor Myers’ evidence in particular, at great length at the arbitration and there is no basis for allowing the appellant to re-call Associate Professor Myers on appeal. Assuming that the appellant does seek to call additional or fresh evidence from Associate Professor Myers, that application is refused.
In respect of the appellant’s application for an oral hearing, having regard to Practice Directions 1 and 6, the documents that are before me, and the submission by Mr Relf that the appeal can proceed on the papers, I am satisfied that I have sufficient information to proceed on that basis without holding any conference or oral hearing and that that is the appropriate course in this case.
THE EVIDENCE
Mr Relf
Mr Relf’s evidence is in two statements dated 6 October 2009 and 11 December 2009. He gave no oral evidence at the arbitration. His evidence can be summarised as follows:
(a)he was born in 1983 and he first started work with the appellant as a casual when he was 17 years old. The appellant’s main business at that time was the fabrication of pens and feeders for use in piggeries. In his first statement, Mr Relf said that his work involved man-handling large pieces of metal work, welding, grinding, cutting, and loading and unloading equipment;
(b)at some stage, Mr Relf stopped work with the appellant and left Grafton. He returned in early 2005 and recommenced employment. By this stage, the appellant’s business was no longer concentrating solely on equipment for piggeries, but also made manhole covers. Mr Relf worked essentially full time from his return in early 2005. The appellant made him permanent in July 2006. He continued to work for the appellant until early 2009 when he left for reasons unrelated to his alleged injury;
(c)over time, his work “became heavier and heavier”. The lids became larger and batches also increased in size and became more difficult. He had to lift metal lids and weld reinforcing ribs across them. Mr Relf complained to his boss, Richard Vereyken, that he needed a crane because the work was getting “too hard”;
(d)other work required Mr Relf to use a grinder on moulds received from Rocla Concrete;
(e)there was a lot of grinding to do and Mr Relf found the nine-inch grinder difficult to hold. After a while, he found it too difficult to use the nine-inch grinder, as he became fatigued, and he started to use the four-inch grinder, as it was easier on his body;
(f)Mr Relf also used a “brobo saw” (described by other witnesses as a “cold saw”), which required him to use his hands above shoulder height. He used the saw for “significant periods”. His arms would “get tired and feel like lead on occasions” and he would change arms, or use both. In the years prior to his injury, he would use the saw for two to three days in a row on “many occasions”;
(g)Mr Relf placed his work on 900 mm high steel trestles. He would stand on one side of the trestles and reach from 1300-1500 mm across them to the other side to weld. As he did so, he would bend at the waist and extend his arms as far as he could holding the “Mig welder in an un-gloved right hand and the tip of the Mig welder in a gloved left hand directing it and holding it firmly in place to direct the weld”. In this position, he extended his arms above shoulder level. He spent “many hours in each day” in this position. He also extended his arms above his shoulders whilst using the grinder;
(h)Mr Relf had no symptoms in his hands or arms before May 2007. At about that time he noticed a cold feeling in the index finger of his left hand. Over the next few weeks, he developed a cold and numb sensation in his left hand, which was worse when he was required to grip tightly, especially when using the grinder;
(i)on or about 1 June 2007, Mr Relf washed his hands in preparation for “smoko” when he felt pain in the whole of his left hand, coldness, numbness, and noticed the hand go white. He saw Dr Fowler and was initially told that he had carpal tunnel syndrome;
(j)he returned to work, but his symptoms worsened and started to involve the whole of his left arm, which felt cold, numb and painful;
(k)he sought further treatment and was ultimately referred for an ultrasound and then to Lismore Hospital where he was diagnosed with thoracic outlet syndrome;
(l)Mr Relf underwent a thrombolysis at Lismore Hospital on 21 August 2007, but that treatment was ineffective and he was transferred to Royal Brisbane Hospital for further surgery, and
(m)he ultimately returned to work, but never regained full use of his left arm. He ceased work in February 2009 for reasons unrelated to his left arm.
Richard Vereyken
Mr Vereyken is a director of the appellant company. He gave a statement on 30 November 2009. He said that Mr Relf spent approximately 99 per cent of his working day welding and only 10 to 15 minutes per day grinding. He confirmed that items to be welded were placed on steel trestles that were approximately waist height. There was no need for Mr Relf to either bend or reach in such a way that he was welding a point above shoulder height. Mr Relf also spent about one or two days per year welding steel reinforcements used in concrete products.
He said that Mr Relf rarely used the cold saw, as he was primarily employed as a welder. He estimated that Mr Relf used the cold saw to cut steel pipes on perhaps “three or so occasions per year”.
Mr Vereyken stated that there was no vibration involved in using the welding equipment at the factory. Though the grinders and the cold saw caused “an element of vibration”, Mr Vereyken considered that vibration to be “extremely minimal”.
The appellant installed an overhead hoist in 2006, which reduced the need for Mr Relf to manually handle heavy items onto and off the trestles. The trestles were fitted with “jigs” that held the steel in position while Mr Relf performed his duties. Mr Vereyken was not aware of any task that required Mr Relf to hold an item in such a manner that he would be required to position his arm above shoulder height. However, he agreed that in using the cold saw, a worker would raise his hand to approximately shoulder height. In Mr Vereyken’s experience, a worker only required one hand to operate or lower the cold saw.
Medical evidence
Dr Fowler saw Mr Relf on 1 June 2007 and took a history that he complained of numbness, coldness and discomfort in his left hand and arm. Those symptoms were aggravated when holding steel with his left hand while using tools with his dominant right hand. Dr Fowler initially diagnosed left carpal tunnel syndrome, which nerve conduction studies confirmed.
Mr Relf returned on 6 August 2007 complaining of a painful, cold left hand, which was “clearly ischaemic in nature”. Urgent Doppler studies revealed a thrombosis of the left brachial artery and an abnormality of the left subclavian artery.
Dr Fowler referred the worker to Dr Deepak Williams. In his referral letter of 7 August 2007, Dr Fowler described the worker’s presenting problem as:
“Left brachial artery thrombosis – probably from Saturday when symptoms became worse
Has ischaemic lower arm with absent pulses at wrist and cubital fossa, and has rest pain
Dopplers show flap in subclavian artery ? source of embolism
Good general health
Has had carpel [sic] tunnel symptoms in [the] left hand, proven on nerve conduction studies but in retrospect may have been getting embolic symptoms of lesser degree for [the] last two months”
Dr Williams saw the worker on 10 August 2007 and reported to Dr Fowler on that date. He took the following history:
“Leslie is a 24 year old lad who presents with a history of having developed numbness in the tips of his index and middle fingers of the left hand two to three months ago. Slowly that has spread to all four fingers and thumb on that hand. Then these fingers and digits started becoming cold and changing colour. He gives a very good history of the fingers becoming pale and then blue. Slowly the condition worsened and over the past few weeks he has been having pain as well which radiates down from his elbow to his hand. An ultrasound scan done last week shows that he has got a thrombus in the left radial and brachial arteries with a middle interval flap in the subclavian vein. There is no history of trauma. His past medical history does not reveal anything of significance and he is currently not on any medication apart from Clexane injections.”
Dr Cappe performed an arch/left subclavian angiography on 16 August 2007, which revealed mild aneurysmal dilatation of the subclavian artery behind the clavicle. On abduction of the arm at 90 degrees, there was a faint impression on the artery at the level of the first rib. On abduction of the arm above the head, there was “complete occlusion of the subclavian artery at the lateral aspect of the first rib”. Because of this finding, Dr Williams arranged for the worker’s admission to Lismore Hospital for thrombolysis.
Mr Relf was transferred to Royal Brisbane Hospital on 23 August 2007 where he came under the care of Dr Jenkins, vascular surgeon, and underwent surgery on 29 August 2007. The surgery revealed a left subclavian artery aneurysm with mural thrombus and left radial artery thrombus plus a chronic thrombus in the left ulnar artery. A report from Dr Taylor, senior medical officer at the hospital, dated 10 January 2008, confirmed the findings on admission and recorded that there was no information in the hospital’s medical file on a relationship to work.
Dr Fowler reported on 10 September 2007 that Mr Relf’s thoracic outlet syndrome was a congenital condition. He added:
“However the nature of the work he was performing may have contributed to the impingement of the subclavian artery, with damage to the artery, the development of an aneurysm and the subsequent arterial embolisation, and thrombosis of his brachial, radial and ulnar arteries.”
Dr Fowler diagnosed Mr Relf to have left thoracic outlet syndrome with axillary artery thrombosis in WorkCover certificates dated 7 January 2008, 4 February 2008 and 8 December 2008. He added that the worker’s employment was a substantial contributing factor to that injury.
Dr Fowler reported to the appellant’s workers’ compensation insurer, CGU Workers Compensation (NSW) Ltd on 8 October 2008 as follows:
“In Dr Jenkin’s [sic] opinion, Leslie Relf’s symptoms were likely to have been aggravated by his heavy physical work, and in Dr Jenkin’s [sic] opinion his work was a contributing factor to the development of the extensive thrombosis of his axillary artery thrombosis which spread to involve his radial and ulner [sic] arteries.”
Dr Dryson, occupational physician, examined Mr Relf on 23 July 2009 and prepared a medico-legal report on 4 August 2009. He took a consistent history of the onset of Mr Relf’s symptoms in May 2007 and of his subsequent treatment.
Under “job description”, Dr Dryson recorded the following:
“Mr Relf states that his employment at Vereyken Bros was predominantly welding. This took up most of his time. He was predominantly Mig welding. He would hold the welding head in his right hand, and the work piece in the left.
Depending on the size of the work piece, he may have to hold his left arm above shoulder height.
He was also operating a grinder to clean up the edges of the weld. This would be used in both hands.
Mr Relf states that it was very cold in winter in the workshop. Steel would have to be carried in from a stockpile outside. It was very cold to the touch.
He would cut steel using a brobo saw which he would hold in two hands. This caused vibration. He also states that he would have to pull hard on the handle with both hands, the arms being elevated above shoulder height.
Mr Relf estimates that in an average eight hour day he would weld some six hours per day and use the grinder some two hours per day. Interspersed with this was some cutting and bending of steel. He would occasionally drive a forklift to move steel. Bending steel was done using a hand bender, again requiring forceful grip with both hands.”
Dr Dryson noted that Mr Relf had a cervical rib, which was “a known cause of thoracic outlet syndrome”. He described a cervical rib as a “vestigial structure arising from the lowest cervical vertebra analogous to the true ribs arising from the thoracic vertebra”. It was often associated with a tight fibrous band the consequence of which was that “the neurovascular structures and particularly the artery is compressed during activities involving raising of the arm at or above shoulder height”.
Dealing with causation, Dr Dryson concluded (at page 11) that:
“It is of course accepted that Mr Relf had a cervical rib as a congenital variant, that is, from birth.
It is my opinion however that since it is known that the cervical rib does not compress the artery unless the arm is elevated, it would not have compressed the arteries sufficient to cause an impediment of blood flow and consequent thrombosis if it were not for the need to hold the arm elevated above shoulder height for extended periods during the course of supporting work pieces during employment at Vereyken Bros.
It is my opinion therefore that had it not been for his employment at Vereyken Bros, Mr Relf would not have developed his brachial artery thrombosis.”
The appellant relied on evidence from Associate Professor Myers in reports dated 6 August 2008, 12 November 2008 and 3 November 2009, together with the Associate Professor’s oral evidence at the arbitration.
In his first report, Associate Professor Myers took a consistent history of the development of Mr Relf’s symptoms in mid 2007. He also noted that Mr Relf worked as a welder for the appellant, mainly welding lids similar to manhole covers. However, that history appears to have been restricted to Mr Relf’s post-injury duties.
On the question of causation, Associate Professor Myers concluded that Mr Relf had a pre-existing condition, but had no injury. He added:
“His symptoms and signs are consistent with thoracic outlet syndrome from a cervical rib causing a left subclavian artery thrombosis.
This is not related to his employment in any way.
It is not caused by his employment and employment is not a contributing factor.”
Associate Professor Myers prepared a supplementary report on 3 November 2009 in response to a letter from the appellant’s solicitors dated 2 November 2009. That letter enclosed copies of Dr Dryson’s report of 4 August 2009, Mr Relf’s statement of 6 October 2009, and Dr Taylor’s report of 10 January 2008. After reviewing the material, the Associate Professor concluded:
“It is my opinion that given that he had a cervical rib with post-stenotic dilatation, this indicates very significant longstanding issues.
The post-stenotic dilatation is caused by the fact that blood flow is normally laminar and that downstream from a stenosis [narrowing] the flow becomes turbulent, thus putting outward radial pressure on the wall of the artery. Thus, over time, the artery wall weakens and dilates.
Because there is abnormal flow at the side walls of the artery at the site of dilatation, thrombus forms on the wall of the artery. This then embolises, ie breaks off and passes distally in the artery with subsequent occlusion.
Therefore, it remains my view that Mr Relf’s employment did not contribute to this condition.
Therefore, it is my opinion that the nature and conditions of his employment have neither caused nor aggravated the thoracic outlet syndrome.
It is my opinion that the condition was due to the presence of the cervical rib causing a subclavian artery stenosis with post-stenotic dilatation, the formation of mural thrombus with embolisation of this thrombus, and subsequent occlusion of the brachial artery.
Mr Relf’s statement does not alter my opinion in any way.”
THE ARBITRATOR’S REASONS
Though the Arbitrator found Associate Professor Myers to be an impressive witness, he did not find his answers as to the effect of the use of the scalene muscles on the subclavian artery in its position over a cervical rib to be “quite so convincing” (Reasons at [68]). He felt that in the end, the Associate Professor conceded “that there would be a contraction of the scalene muscles either with the arm held above the head, or if the applicant were bent over from the waist” (Reasons at [68]). Therefore, the Arbitrator was “not entirely convinced that such an action would have no affect [sic] on the pathology present”.
The Arbitrator noted that Dr Dryson’s history accorded with the job description set out in Mr Relf’s December 2009 statement and it was that history upon which Dr Dryson concluded that work was responsible for the onset of the condition (Reasons at [73]). The Arbitrator also bore in mind Associate Professor Myers’ evidence that the onset of such a condition was extremely rare and that most people with a cervical rib did not develop pathology.
Last, the Arbitrator noted that there was a temporal connection between the onset of Mr Relf’s symptoms and the performance of his duties for the appellant. He did not read anything sinister into Mr Relf’s failure to describe his welding activities in his first statement, noting that he may well have had an honest belief that his condition had resulted from the grinding work. In any event, the Arbitrator concluded that the welding work “equally required the Applicant to stretch out over the trestles” and would appear to have been work likely to aggravate his pre-existing condition (Reasons at [75]).
On balance, the Arbitrator was satisfied that Mr Relf had established that he probably “aggravated, exacerbated and deteriorated his condition by virtue of the nature and conditions of the work he was doing for the respondent”.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)accepting the evidence of Dr Dryson when that evidence did not meet the standard in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’), and
(b)substituting his own view of the pathology in light of Associate Professor Myers’ evidence.
SUBMISSIONS, DISCUSSION AND FINDINGS
The appellant has submitted:
(a) Dr Dryson’s evidence failed to meet the standard required in Makita because it
lacked scientific rigour and he failed to explain the basis for his conclusion. His opinion therefore amounted to no more than a bare ipse dixit;
(b) since the abolition of the Compensation Court of New South Wales, “Arbitrators do not have the ability to rely upon general knowledge acquired in that capacity to substitute for a medical opinion which amounts to a mere ipse dixit”;
(c) Dr Dryson’s opinion should not have been preferred over the tested opinion of Associate Professor Myers, a practitioner who gave evidence within his specialty;
(d) the Arbitrator led himself into error in accepting Dr Dryson’s opinion over that of Associate Professor Myers and compounded the error by substituting his own view of the pathology (at [68] of his Reasons) when he said “I am not entirely convinced that such an action would have no affect [sic] on the pathology present”. In this statement the Arbitrator was referring to the effect of the scalene muscles on the subclavian artery when an arm was raised above head height;
(e) whilst it may have been possible for a Compensation Court Judge to use his or her knowledge to interpret medical evidence, there is no such ability for an Arbitrator to find, in the light of Associate Professor Myers’ evidence, “that the positioning of the body had no [sic, an] effect on the pathology present”, and
(f) the worker bore the onus of proof and failed to discharge that onus.
I do not accept the appellant’s submissions.
The appellant never argued before the Arbitrator that Dr Dryson’s evidence failed the Makita standard and never objected to the Arbitrator admitting the report into evidence (T35.10). Had it done so, and had the objection been successful, Mr Relf’s solicitor would no doubt have sought to call additional evidence. The Commission expects parties to fully prepare and present their cases at the arbitration. It is not appropriate to await the outcome of the arbitration and then decide to present entirely new arguments on appeal. The appellant is not now entitled to object to the admissibility of Dr Dryson’s report.
Assuming that the appellant’s objection to Dr Dryson’s evidence goes to the weight to be attached to that report, I do not accept that his evidence was a bare ipse dixit and therefore entitled to no weight. Assuming that the relevant witness is an expert, and entitled to give evidence on the issue in dispute, Makita requires two things. First, that the facts on which an expert’s opinion is based be identified and proved (the history) and, second, “demonstration or examination of the scientific or other intellectual basis of the conclusion reached” (the explanation) (Heydon JA at [85]).
Dr Dryson based his opinion on the history provided to him by Mr Relf and set out in detail at page five of his report. That history was consistent with Mr Relf’s evidence and provided a fair climate for the acceptance of the doctor’s opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] NSWLR 505 at 509-510).
As to the explanation that experts must provide in support of their conclusions, Giles JA (with whom Mason P and Beazley JA agreed) said in Adler v Australian Securities and Investments Commission [2003] NSWCA 131 (at [631]):
“631. Whether an opinion has been shown to be based on the specialised knowledge is a question of fact, and s 79 provides that it is sufficient that it is substantially based on that knowledge. What is required by way of the explanation of which Heydon JA spoke in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] will depend on the circumstances. The disconformity in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 to which his Honour referred was gross, in that the psychologist’s evidence went to when the complainant was abused and who abused her, outside a psychologist’s expertise and based on matters other than a psychologist’s expertise. Other circumstances will be quite different. And, as was said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, absolute certainty that the opinion is based on the specialised knowledge is not required (at [14]) and many of the stated qualities of the opinion evidence by Heydon JA ‘involve questions of degree, requiring the exercise of judgment’ at [87].” (emphasis included in original)
Dr Dryson provided his evidence as an expert in the field of occupational medicine. The appellant has not challenged his expertise. Whether Dr Dryson based his opinion on specialised knowledge is determined on the balance of probabilities (Hodgson and McColl JJA, Young CJ in Eq agreeing on this issue in Paino v Paino [2008] NSWCA 276 at [69]). Based on Dr Dryson’s qualifications and experience as an occupational physician, I am comfortably satisfied that he has significant background knowledge of, and insight into, the relationship between human movement and its effect on body tissues and neurovascular structures.
It is not necessary for an expert to explain all the background research, texts, and articles that are the source of his or her knowledge (see generally Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89]), though that may well assist the Commission in determining the weight to be given to the evidence. I am satisfied that Dr Dryson based his opinion on his specialised knowledge and it is appropriate to assess his evidence in that light. The Commission is entitled to consider his evidence, together with all the other evidence, expert and lay, in determining the issue in dispute.
Dealing with causation issues in general, the Commission is required to apply the common sense test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). As observed by Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (at [143]):
“The commonsense approach to causation at common law is quite different from a scientist’s approach to causation...an inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.”
A determination on causation requires an evaluation of all the evidence. It is then for the Commission to reach a factual conclusion according to law (South Australian Emergency Commission v Workers Compensation Tribunal and anor [2009] SASC 213 at [59]). In reaching that conclusion, the Commission will always give careful consideration and due weight to the expert evidence. However, as observed by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [61]), “the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists”.
The appellant’s main attack on Dr Dryson’s evidence was that his statement that “it is known that the cervical rib does not compress the artery unless the arm is elevated” was unexplained and lacked scientific rigor. If Dr Dryson was saying that a cervical rib never compresses the subclavian artery unless the arm is elevated, his evidence was an overstatement. In the light of Associate Professor Myers’ evidence, and the diagrams tendered in evidence, I accept that a cervical rib can “kink” (compress) the subclavian artery even without elevation of the arm, but that is not always the case (see below at [68]). However, Dr Dryson’s overstatement has not destroyed his evidence.
Dr Dryson’s history of Mr Relf’s duties (which required him to work for long periods with his arm elevated) and his description of the physiological effects of arm elevation on the subclavian artery in the presence of a cervical rib (confirmed in Mr Relf at the angiography on 16 August 2007) has provided a clear and succinct explanation for his conclusion that, had it not been for his employment at Vereyken Bros, Mr Relf would not have developed his thoracic outlet syndrome and brachial artery thrombosis.
This conclusion on causation not only accords with common sense, it is consistent with the evidence of constriction of Mr Relf’s subclavian artery on raising his arm above his head in the angiography performed by Dr Cappe on 16 August 2007. Though Associate Professor Myers criticised reliance on angiography, that criticism was on the basis that he thought it provided false positives in about 30 per cent of normal people. In the present case, however, the angiography was not a false positive, though it was not, on its own, determinative.
Dr Dryson’s position is also consistent with one of the many research articles tendered in evidence. Whilst the article must be treated with some caution, and it is certainly not decisive, it is noteworthy that Reeser JC from the Marshfield Clinic Research Foundation stated that “position-dependent compression of the subclavian and axillary vessels within the thoracic outlet may result in functional limitation” (Diagnosis and management of vascular injuries in the shoulder girdle of the overhead athlete, Curr Sports Med Rep. 2007 Oct; 6(5):322-7).
Associate Professor Myers agreed that there is a “kinking” (T11.23; 19.24) in the subclavian artery as it “arches over” (T12.27) the cervical rib. It was that “kinking” in the artery that he thought caused Mr Relf’s condition. He explained that the kinking causes a stenosis of the artery and the blood flow increases in speed and becomes turbulent, thus increasing pressure on the wall of the artery and, over time, the wall weakens causing a “post-stenotic aneurysm” (T11.40-51). The artery increases in size and a thrombosis forms on the wall of the artery. When the clot breaks off it causes ischaemia (a blockage of the blood supply) to the extremities. In Mr Relf’s case, the blockage affected the blood supply to the fingers and arm. Associate Professor Myers concluded that neither compression nor vibration were “even vaguely relevant” (T12.16). He thought that working with the arm above shoulder height “was completely and utterly irrelevant” (T12.25).
Whilst Associate Professor Myers was adamant that working with the arm above shoulder height was irrelevant to the development of Mr Relf’s condition, a close analysis of his evidence (as set out in Mr Relf’s submissions on appeal) suggests that his dogmatic dismissal of any connection with work was not (as the Arbitrator observed) entirely consistent with his evidence as a whole. The following evidence is relevant:
(a)a cervical rib causes the subclavian artery to rise to a (more) superior position than it would without the extra rib (T31.21) but it doesn’t always necessarily have to be the case (T30.38);
(b)that causes a kinking in the artery, which causes the artery to be narrowed (T32.11);
(c)only one per cent of the population have a cervical rib (T22.35-40), but thoracic outlet syndrome occurs in much less than one per cent of the population (T22.38);
(d)the vast majority of cervical ribs cause no demonstrative or clinical problems (T22.50) because, he presumed, the subclavian artery was “not sufficiently pulled up enough” (T23.10);
(e)the scalene muscles are responsible for holding one’s head up (T14.30) and the elevation of the first thoracic rib (T14.13);
(f)when a person lifts his or her arms above the head, the scalene muscles contract slightly (T25.49). When those muscles are tensed the cervical rib is elevated (T20.5);
(g)bending from the waist and having one’s arms outstretched, as in across a table for a period of time, is the same as having one’s arms above the head (T25.53-26.6);
(h)the cervical rib causes compression to the artery “because it is being pulled up compared to what it normally is” (T22.18), and
(i)Mr Relf’s subclavian artery came up over his cervical rib and he had an aneurysm past that (T26.50).
Based on this evidence, Mr Relf has submitted that, as both the first normal rib and the cervical rib are elevated further when the arm is raised relative to the shoulder and, if the artery is initially compressed because it is raised over the cervical rib, it follows that it is compressed further if the cervical rib is lifted further. This further compression contributed to a further material increase in risk of Mr Relf developing thoracic outlet syndrome and consequent brachial artery thrombosis. This submission is both persuasive and consistent with the evidence.
The appellant urged the Commission to accept the evidence from Associate Professor Myers because of his standing as a specialist vascular surgeon. Mr Relf argued that Dr Dryson’s evidence should be preferred because of his experience as an occupational physician. Both these factors are relevant to my assessment of the claim, but neither is decisive. Associate Professor Myers’ qualifications as an expert in the field are entitled to considerable weight. However, his dogmatic rejection of any causal connection between Mr Relf’s condition and his employment does not stand up to close analysis of the evidence as a whole.
Given the evidence by Associate Professor Myers that a cervical rib causes the subclavian artery to rise to a more superior position, thus resulting in kinking, and his evidence as to the elevation of the cervical rib when the scalene muscles are contracted (as they are when a person lifts his or her arm above head height), and given the evidence of the nature of Mr Relf’s duties (which required him to work with his arm above head height for sustained periods), the conclusion that Mr Relf’s employment made a material contribution to his condition is logical and compelling.
The conclusion that employment caused or contributed to the condition is also consistent with the evidence from Dr Fowler, the treating general practitioner, in his WorkCover certificates, and Dr Jenkins, the treating vascular surgeon (see [38] and [39] above), though I do not base my decision on their evidence because neither has provided a detailed report. It is also consistent with Associate Professor Myers’ evidence that the vast majority of cervical ribs cause no demonstrative or clinical problems (T22.50) because the subclavian artery is “not sufficiently pulled up enough” (T23.10). The only logical conclusion in the present matter is that Mr Relf’s artery was “pulled up enough” because of the nature of his duties with the appellant. This conclusion is supported by the fact that Mr Relf’s symptoms started at, and were aggravated by, his duties with the appellant.
The appellant’s submission that the Arbitrator substituted his own view of the pathology is incorrect. He did not. He said (at [68] of his Reasons) that he “was not entirely convinced that such an action [working with the arm above head height] would have no affect [sic] on the pathology present”. This conclusion was consistent with the evidence from Associate Professor Myers, referred to at [68] above, and with Dr Dryson’s evidence. It was therefore open to the Arbitrator to form that view. He did not use any specialist knowledge in reaching that conclusion, but referred to Associate Professor Myers’ evidence that there would be a contraction of the scalene muscles either with the arm held above the head, or if the applicant were bent over from the waist with his arm extended. As the above analysis of the transcript has demonstrated, that conclusion was an accurate summary of that part of Associate Professor Myers’ evidence. The additional evidence from Associate Professor Myers was that when the scalene muscles are tensed the cervical rib is elevated (T20.5). If that happens, then the logical conclusion is that the subclavian artery is further compressed with the consequences that flow from that compression.
OTHER MATTERS
At the arbitration, Mr Relf’s solicitor objected to the admission of Associate Professor Myers’ reports. He has renewed those objections on appeal. In view of the conclusion I have reached as to the merits of the appeal, it is not necessary to deal with those objections in detail save to observe that I am in general agreement with the Arbitrator’s reasons (at T6-9) for admitting the reports.
On appeal, Mr Relf’s solicitor has objected, for the first time, to the Arbitrator allowing Associate Professor Myers to give oral evidence. The Arbitrator noted at the teleconference on 17 November 2009 that he would list the matter for hearing on a date that would “hopefully suit the availability of Professor Myers”. At the arbitration, the Arbitrator stated that Mr Relf’s solicitor had summonsed Associate Professor Myers to attend (T1.24). Though there is no copy of the summons in the Commission’s file, and no transcript of the teleconference, it is obvious that the parties discussed at the teleconference the question of Associate Professor Myers giving oral evidence at the arbitration. In all the circumstances of this case, it was appropriate that Associate Professor Myers gave oral evidence and that fact has not prejudiced Mr Relf. As Mr Relf did not object to the oral evidence at the arbitration, it is not permissible for him to object to it on appeal.
CONCLUSION
I am comfortably satisfied that Mr Relf’s thoracic outlet syndrome was either caused or materially aggravated by working with his arms above his head for sustained periods in the course of his employment with the appellant. It follows that he received a compensable injury within the terms of the legislation and that, as a result of that injury, he developed brachial artery thrombosis and required the extensive treatment set out in the Application. The appellant has always conceded that if Mr Relf succeeded on injury then he succeeded on whether his employment was a substantial contributing factor under section 9A (T1.49).
The insurer has not disputed the reasonableness of Mr Relf’s treatment or the quantum of the hospital and medical expenses claimed. It follows that Mr Relf was entitled to an award in the sum claimed in the Application. The Arbitrator did not award that amount but made a general order for the payment of section 60 expenses. As Mr Relf has not challenged that order on appeal, I will not depart from it. However, where a party claims a specific amount for section 60 expenses the Commission will normally order payment of that amount.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 8 February 2010 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
18 May 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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