Ward v Allambi Care Ltd - [2017] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ward v Allambi Care Ltd [2017] NSWWCCPD 3
APPELLANT:	Melissa Ward
RESPONDENT:	Allambi Care Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2647/16
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	5 September 2016
DATE OF APPEAL DECISION:	3 March 2017
SUBJECT MATTER OF DECISION:	Whether evidence satisfied the test of continuing incapacity for work and if so whether the worker has ‘no current work capacity’ or ‘current work capacity’
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Peninsula Law
Respondent:	Gair Legal
ORDERS MADE ON APPEAL:	1. Appeal allowed. 2. The order in paragraph 2.c. of the Arbitrator’s Certificate of Determination dated 5 September 2016 is revoked, and the following order is substituted in its place: “2.c. $274.29 from 13 November 2015 to 15 June 2016 pursuant to s 37(3) of the Workers Compensation Act 1987.” 3. The Arbitrator’s finding that the appellant worker ceased to be entitled to weekly payments of compensation on 15 June 2016 is set aside. 4. The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant worker’s entitlement to weekly compensation from 16 June 2016 and continuing.

BACKGROUND

This will be recounted as briefly as possible. Factually it derives mainly from the appellant’s evidentiary statement of 18 May 2016 which was not cross-examined upon and treated before the Arbitrator as largely uncontroversial. Medically it is taken from the medical reports to which reference will be made.
The appellant was born in 1977 and left school at the end of 1993 having obtained the school certificate. Thereafter she did one year of a certificate course at a business college and embarked upon for three years, without completing, an on-line Bachelor of Psychology degree. She then did a one year Diploma of Counselling at Evocca College.
This post high school training must have been to a large extent part time, since she entered the workforce in 1993 and was employed in a variety of jobs involving both physical and clerical work before joining the respondent on 26 September 2011. Her original classification was as a youth worker which involved attending to the daily needs of disabled youths. In June 2013 she was promoted to the position of residential officer managing a team in a youth house. This work was largely administrative and supervisory and carried an increase in weekly gross pay from $1,200 to $1,600.
The appellant’s Application to Resolve a Dispute alleged two injuries, the first on 4 January 2012 when she was attempting to lift an 80 kg nonspeaking autistic child who she was looking after, and the second on 4 August 2015, said to be an exacerbation of the first injury, when she was required to sit in an “unsupportive” chair for a prolonged period of time completing reports. Both injuries were back injuries and the injury alleged was described as “injury to lumbar spine: prolapsed disc”.
As to the period between the two injuries, the appellant said that she suffered ongoing pain and symptoms in her lower back and persevered with these, managing them following the advice of a doctor that the workers compensation insurer had had her examined by. (This may well be Dr Chris Harrington, a Newcastle orthopaedic surgeon, but that is not clear.) She said in her statement that there was nothing that could be done for her lower back injury other than managing her symptoms.
After the events of 4 August 2015 she said that she had “… been certified for work [sic] to date and continuing …” by her current general practitioner, Dr Islam of Tristar Medical Group Wyee. That doctor recommended physiotherapy and she had physiotherapy which she found helpful until the insurer declined liability for her claim and she was unable to afford it. She said that she took analgesic medication for pain relief, which she had paid for since the insurer declined liability.
Her evidentiary statement went on to say that her general practitioner was “… presently running an account for my costs of consulting him … has indicated that he would like to refer me for a specialist opinion but is not in a position to do so as the insurer had declined liability for my claim”. The statement then went on to outline in para [14] a number of complaints of pain, symptoms, difficulties and disabilities which are typical of claims involving back injuries and which it is not necessary to recount in detail. However it is appropriate to note that sub-para (b) of para [14] was a complaint of pain radiating from the appellant’s lower back down both her legs.
At arbitration the appellant relied upon a medico-legal report from Dr James Bodel, an orthopaedic surgeon, who examined her on 14 January 2016 and furnished a report dated 28 January 2016. Dr Bodel’s report on pages 2 and 3 set out a comprehensive history in relation to the appellant’s back trouble, which included matters not mentioned in her evidentiary statement, namely that following the first injury she went to see her local doctor but that it took her a week to get to the stage where she could get out of bed owing to the severity of her pain. She was given Endone and put off work for a month, “apparently had some scans done” and was told that there was a disc injury at the L3/4 level. Dr Bodel understood that she was subsequently referred to a specialist at the John Hunter Hospital and was informed that there was disc pathology “… but that there was no guarantee that a surgical intervention would help and she was too young and therefore surgery was not recommended”. The history went on to record that she was not making much progress but that her doctor certified her fit to return to normal duties, and that over time she made minimal progress and was never normal, having continuing back pain and right leg pain.
In respect of 4 August 2015 the history taken by Dr Bodel was that her job at the time involved a lot of sitting at her desk writing reports and doing other clerical activities “… and she reported increasing pain in the lower part of the back while doing that activity”. At one stage she got up to try to do some stretching and walking around but found that she could not straighten up because of the severe pain in the back and down the right leg and had to lie down and rest. Although she saw out the day with great difficulty she could not work the next day and once more consulted her doctor after about a week. The history continued:
“She eventually had a CT scan done of the lumbosacral spine on 23 September 2015 and I have seen this scan which does show definite disc pathology at L3/4 and I suspect also at L4/5.
I note also a letter from the local doctor who has referred her to Dr Jonathan Curtis, a neurosurgeon at the Royal North Shore Hospital, for an opinion but the insurance company has not accepted liability for this and she has not been able to afford to go and see Dr Curtis.”
On page 5 of his report Dr Bodel expressed the opinion that the appellant’s injuries were “… a disc injury at the lumbosacral junction … caused by the original injury in January 2012 and there has been a further aggravation of this subsequently”. On page 6 of his report he expressed the view that the appellant was “… not currently fit for work” and that “her prospects of returning to work are poor”. He said that she needs an MRI scan and referral to Dr Curtis for advice on further treatment which could include block injections and/or surgery.
The appellant also relied on medical certificates from Dr Islam which came into existence after the second injury (which was recorded in the certificates as occurring on 3 August 2015), the earliest of them being dated 17 August 2015 but referable to a first consultation on 6 August 2015. The certificates recorded that the injury was consistent with the appellant’s “description of cause” and was related to work upon the basis of “[p]rolonged sitting in unsupported chair aggrevated [sic] previous work related injury”. A pre-existing relevant factor was recorded as “[s]he had a disc prolapse since 2012 which was related to work and was certified for work cover”.
On 23 September 2015 the appellant had a CT and x-ray of her lumbar spine reported upon by Dr Aluwihare as follows:
“COMMENT
No focal disc herniations are identified. No evidence of neural impingement.
Minor degenerative disc changes are noted between L3/4 and L5/S1”.
This interpretation of the radiological investigation of 23 September differs from Dr Bodel’s as abovementioned, and also from Dr Islam’s in his referral letter to Dr Curtis which was in evidence before the Arbitrator. That letter dated 20 October 2015 said, amongst other things:
“A CT scan of Lumbosacral spine was done which showed circumferential disc bulge L3, L4 level.”
The appellant also relied upon some documents emanating from Dr Islam which appeared to be extracts from his clinical notes. The entry for 6 August 2015 was:
“Presented with
1.     Severe low back pain – radiates down to right leg
2.     Numbness in low back and right leg
3.     Has blisters on low back as she burnt it after applying a very hot water bag
…”
In a continuation of the document Dr Islam answered a number of questions. They included:
“4. The relation between the client’s employment and the client’s medical condition
Although the condition is multifactorial, from the patient history it is obvious that her prolonged sitting in unsupported posture played a role in her condition.
5.Any disabilities consequential upon the injuries or treatment:
Unpredictable, could be assessed to a certain extent after specialist review and opinion.
6.Present condition of patient:
Patient is struggling to manage her day to day activities, attempt to join her job after a conservative management failed and it exacerbated her current problems. She has been referred to specialist for further evaluation and next step management.
7.Prognosis
Unpredictable, could be assessed after specialist review and opinion.
8. Client[’]s fitness for employment in her pre-injury occupation
At the moment she is unfit to continue a full time job.”
In addition to the document from Dr Islam just referred to which concerned the appellant’s second injury and progress thereafter, also in evidence before the Arbitrator in respect of the first injury were a copy of the clinical notes of the South Lakes Medical Group of Dora Creek printed on 4 November 2015. These recorded a consultation on Friday 30 March 2012 when a history of the first injury occurring six weeks earlier was given as follows:
“… Felt something give in the back. Iproved [sic]. Was at work on Saturday and then develop [sic] pain. Was sitting down and stood. Pain in the back. [S]unday it became worse. Laid down and was not able to get up afterwards. Radiate tot eh [sic] front right thigh. numbness present since Monday-Tuesday.”
The clinical note goes on more extensively, amongst other things showing that the appellant may have been pregnant and indicating that there was a plan to refer her for a CT scan after pregnancy had been excluded and to “refer to Ed [sic] for further assessment”. This must have been a reference to an emergency department of a hospital, and the note continued under the heading “Actions” to say that amongst other things a referral letter was created and modified to Wyong Hospital physiotherapy.
A further consultation on 3 April 2012 was noted as follows:
“patient went to hospital but did not wait because it was packed. Friend gave a back brace to help support back.
…”
At what appears to have been a later consultation on the same day the following was noted:
“Disc hernia in L3, L4 and L5 – L5 nerve impinged.”
It appears at that later consultation after discussion the appellant was first referred to Wyong Hospital and then the referral was changed to John Hunter Hospital Accident and Emergency. Then the copy records continued with a note of a further consultation on 11 April 2012 as follows:
“Seen at JHH and felt neurosurgical and neulogy [sic] review not required at this stage. Pain improves when sleeping. Lying down comfortable, does not feel much pain. With walking the pain would return and leg feels heavy.
Was started on endone and endep. Feeling drowsy all day. Unable to think straight.
Feels that numbness is progressing.
Plan:
- refer to neurosurgeon privately
- consider cortisone injection.”
On 12 November 2013 a consultation took place which was noted as follows:
‘mechenical [sic] fall last [T]uesday, constant bck [sic] pain since
self apply votaren [sic] gel
pain on lower back and right buttock
Examination:
Back, no deformity
flexion 20, extension 10
no enurological [sic] deficit
Reason for visit:
fall
…”
There was no further consultation noted in the clinical notes of the South Lakes Medical Group in relation to the appellant’s back, and it is clear enough that for some reason the appellant became a patient of Dr Islam and as recounted above consulted him after the second injury.
Amongst other records of the South Lakes Medical Group which were in evidence before the Arbitrator, being relied upon by the appellant, were a referral letter to Wyong Hospital of 30 March 2012 and some medical certificates.
It is noteworthy that the referral letter to Wyong Hospital is in respect of a “Melissa L Nkyi”, but there can be no doubt that it is in respect of the appellant. This is made clear by a consideration of the other records in particular the referral letter to the John Hunter Hospital of 3 April 2012 and that hospital’s discharge letter of 4 April 2012.
The WorkCover medical certificates of the South Lakes Medical Group commence with the certificate dated 30 March 2012 which records a description of the injury as follows:
“Lifted 80kg child from the stree tnad [sic] felt lower back give. Recently developed lower back pain. Date of injury: Sunday 15 January 2012.”
The evidentiary material of the appellant just summarised was put into evidence under cover of her Application to Resolve a Dispute, but she also adduced a copy of an MRI report from Dr James Christie dated 13 July 2016 which concluded that there were minor degenerative changes in the lower lumbar discs, but no evidence of disc protrusion or neural impingement, and a supplementary report from Dr Bodel dated 8 August 2016 commenting upon that report. In relation to it he said:
“I have seen the MRI scan that was performed on 13 July 2016 and the accompanying official medical report. This confirms the presence of minor disc pathology at L3/4 and more significant central disc pathology at the L4/5 level but ‘no positive evidence of nerve root impingement’.
These abnormal findings are consistent with the CT scan that I saw from 23 September 2015 and they do not change the level of assessable impairment.
The 12% Whole Person Impairment that I have given is an appropriate level of assessable impairment for the clinical findings seen at the time of my examination on 14 January 2016.”
Finally, also before the Arbitrator, relied upon by the appellant, were some non-WorkCover certificates from the South Lakes Medical Group, a referral letter of 11 April 2012 to Dr Robert Kuru of Warners Bay, and a report of a CT scan of 3 April 2012 by Dr Gutmann, and the appellant’s “Recurrence Claim Form” in respect of the second injury of 4 August 2015. Dr Gutmann concluded that there was “Disc herniation at the posterior aspect of L4-5, possibly irritating the origin of the fifth lumbar nerve roots. Slight disc bulge at L3-4 and L5-S1 is thought to be of doubtful significance”. It is not necessary to mention the detail of the certificates in my view, nor of the Recurrence Form. There is no report of Dr Kuru and it does not appear that the appellant saw him.
With its Reply to the appellant’s Application to Resolve a Dispute the respondent adduced the radiological reports of Drs Aluwihare and Gutmann referred to above and a medico-legal Report from Dr Neal Thomson, an orthopaedic surgeon, dated 15 April 2016. Pursuant to an Application to Admit Late Documents further material was adduced in evidence by the respondent. It included the clinical notes etc of the South Lakes Medical Group referred to above and what was described as the “complete record” of Dr Islam. These records from Dr Islam were more comprehensive than those advanced by the appellant, extending to June 2016 and including the records of a number of pathological tests as well as records of the radiological investigations, but they did not modify the import of the records from the doctor put into evidence by the appellant.
The most important evidence adduced by the respondent pursuant to its abovementioned Application to Admit Late Documents of 1 August 2016 was a copy of an investigator’s report from Brian F Davis and Associates dated 21 June 2016 recording the results of surveillance of the appellant over three days, Wednesday 15 June 2016, Saturday 18 June 2016 and Monday 20 June 2016. It will be necessary to return to this report later herein, but at this stage the following short points about it can be made. First, it contains on page 3 a helpful summary of the activities of the appellant which were observed including bending at the waist into a vehicle, talking on her mobile phone, driving a motor vehicle, attending a caryard at Long Jetty and attending a private residence in Mannering Park. Secondly, it recorded that video film of the appellant’s activities of 21 minutes and 55 seconds duration was exposed during the course of the observations, which, as is commonly the case, occupied much more time than that. The video was not adduced in evidence in any fashion, that is no application was made to screen it to the Arbitrator; no medical report from a doctor who had seen and commented on the significance of the video was tendered; and no application to cross-examine the appellant in respect of it was made.
The report of Dr Thomson mentioned that he found the appellant a poor historian and a difficult one to follow; that her complaints of pain symptoms and difficulties were significant; that she had earlier seen for the respondent an orthopaedic surgeon practising in Newcastle, Dr Chris Harrington, some of whose comments in a report that was obviously before Dr Thomson are mentioned in his report; and that the appellant appeared to have an emotional or psychological reaction to her condition. He concluded his report under the heading “Opinion”:
“It is my opinion that I could not accurately determine whether Ms Ward’s symptomatology was due to her depressed and psychological status or whether there was definite nerve irritation in her lumbar spine.
It is my opinion that the only definitive way of determining whether there has been intervertebral disc disruption in the lumbar spine would be to carry out a vertical weighted scan examination of the lumbar spine with weighted position in the lumbar spine area to determine whether there is a bulging intervertebral disc or prolapse of an intervertebral disc.
It is my opinion that Ms Ward has had long standing back discomfort and has developed a psychological condition and that she should be reviewed by a Pain Management Specialist and Psychologist regarding her disability. I also consider that a determination by scanning of the lumbar spine and other measures that may well be recommended by a Neurosurgeon would determine whether there has been intervertebral pathology at the upper areas of the lumbar spine specifically the L2/3 or L3/4 level that would appear to be the generators of the type of pain that she is describing affecting her lumbar spine from the incident of first injury and the subsequent further disability affecting her lumbar area and her lower limbs.
… I believe that the only possible way to achieve definitive presence of pathology in the lumbar spine is to carry out the vertical specific scan x-rays of the lumbar area… as I believe there are circumstances that make adequate determination of this lady’s psychological status and her possible spinal trauma as undetermined at the present time.”

A further part of the relevant background to this matter is that Dr Thomson was replaced by Dr Maloney for the purpose of evaluating the MRI scan and no report from Dr Maloney was put into evidence by the respondent. Nor so far as I can see was any report from
Dr Harrington put into evidence by the respondent. This may be because the report of Dr Thomson was put in to evidence in light of cl 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation).

THE ARBITRAL PROCEEDINGS

The proceedings came before Arbitrator Wynyard for conciliation and if necessary arbitration on 10 August 2016 at Gosford. Conciliation was unsuccessful and it was necessary to proceed to hearing of the arbitration on that day.
As to some extent appears from what has been said above under the heading “Background”, the hearing was conducted without oral evidence and upon the documentary material adduced by each party. Further, by agreement of the parties, the issues, although significant ones, were narrowed from the strict letter of the s 74 notice and the pleadings, to injury and incapacity: see para [3] of the Arbitrator’s Statement of Reasons.
At the conclusion of the hearing the learned Arbitrator reserved his decision, giving it a short time later on 5 September 2016 with reasons extending to eleven pages.

THE ARBITRATOR’S DECISION

It is convenient at the outset to set out the ultimate findings and orders of the learned Arbitrator in the concluding paras [65] and [66] of his reasons before going to the reasoning which produced them. Those paras are as follows:
“65.   Accordingly:-
1.I find the applicant was injured on 4 January 2012, and 4 August 2015 when she suffered injury to her lumbar spine.
2.I find that the applicant suffered no incapacity from the injury of 4 January 2012.
3.I find the applicant to be entitled to past and future payments of her s.60 expenses.
4.I find that the applicant was totally incapacitated by her injury of 4 August 2015 from 8 August 2015 to 12 November 2015. The respondent to have credit for any weekly payments made during that time.
5.The pre-injury average weekly earnings are agreed to total $1280.36.
6.The applicant is accordingly entitled to an award of $1216.00 per week from 8 August 2015 to 8 November 2015 pursuant to s.36 1987 Act.
7.The applicant is entitled to an award of $1024.28 per week from 9 November 2015 to 12 November 2015 pursuant to s. 37 1987 Act.
8.I find that the applicant was partially incapacitated from 13 November 2015 to 15 June 2016.
9.I am satisfied that the applicant could work in an administrative supervisory role during that period for 25 hours at $30.00 per hour.
10.Accordingly I find that the applicant is entitled to $1280.36 less $750.00 - $530.36 per week from 13 November 2015 to 15 June 2016 pursuant to s.37(3) 1987 Act.
11.Thereafter I find the applicant does not have any entitlement to weekly payments of compensation.
66.    Accordingly:
1.The respondent will pay the applicant’s s.60 expenses upon production of accounts and/or receipts and relevant other documentation.
2.The respondent will pay weekly payments as follows:-
(a)$1216.00 from 8 August 2015 to 8 November 2015 pursuant to s.36(1);
(a)$1024.28 from 9 November 2015 to 12 November 2015 pursuant to     s.37(1) (three days);
(b)$530.36 from 13 November 2015 to 15 June 2016 pursuant to s.37(3).
3.The respondent is to have credit for weekly payments already made.”
(It should be noted that para 65[10] of the Arbitrator’s reasons involves an error of calculation of entitlement to weekly payments from 13 November 2015 to 15 June 2016 pursuant to s 37(3) of the Workers Compensation Act 1987 (the 1987 Act). It appears that the Arbitrator made an error in quantifying the entitlement to weekly compensation by failing to apply 80 per cent of the average weekly earnings, which is $1024.29. Allowing for the relevant deduction of $750, the weekly entitlement for the period from 13 November 2015 to 15 June 2016 should be $274.29 per week, not $530.36. Even though it is not relevant to the appeal it should be corrected, and I so order.)
The learned Arbitrator’s reasons dealt with the arguments upon the issues raised before him by the parties. He recorded the respondent’s submissions in essence in paras [9] and [11] of his reasons and went on to deal with them. In para [36], after a review of the evidence and submissions he found that the appellant had made out her case of injury to her back on 4 January 2012 and aggravation thereof on 6 August 2015.
The learned Arbitrator dealt with the submission about the appellant’s unsatisfactory presentation to Dr Thomson in paras [12]-[27] of his reasons, on two bases. The first was that the appellant was a poor historian (para [12]). The second was that her complaints and clinical presentation were in effect so diffuse that no worthwhile opinion could be arrived at. He rejected the respondent’s argument arising from Dr Thomson’s report. Her status as a poor historian had not precluded a consistent history of both injuries, and Dr Thomson’s views about the appellant’s presentation had not been carried to an end point by reference to the MRI scan of 16 July 2016 because no opinion from Dr Maloney had been tendered, something that Arbitrator Wynyard felt made it appropriate to infer that his opinion would not have assisted the respondent’s case: para [23]. On the other hand, Dr Bodel had assessed the MRI scan and carried his opinion forward on the strength of it in a fashion which continued to support the appellant. Hence the rejection of the attack on the appellant’s case as to injury based on Dr Thomson’s opinion: see para [27].
However the learned Arbitrator, in response to a submission of the respondent which challenged any bases for concluding that injury, if it had occurred, had caused incapacity for work (at least the first injury), went on to deal with that question. Having found that both injuries happened he introduced the issue as to their consequences as regards incapacity for work in the immediately following para of his reasons, para [37] by saying: “However, the question of weekly payments is in a somewhat different evidentiary category …”. He noted that the claim was advanced upon the basis that the appellant was totally incapacitated for work.
The learned Arbitrator then went on to consider the opinion evidence of Dr Bodel, which was, as appears in the Background section of these reasons, undoubtedly to the effect that the appellant was not fit for work. He discounted Dr Bodel’s opinion in paras [45]-[49] of his reasons on what I think is plainly a Makita basis (Makita (Australia) Pty Ltd v Sprowles [2011] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita)).
Then as regards the WorkCover certificates, Arbitrator Wynyard dealt with them, also holding that they provided no real support for the appellant’s case for three reasons, explained in paras [53]-[59]. Essentially these were that the appellant herself had not said in clear terms that she was totally incapacitated in her evidentiary statement, secondly there was a contrast between her presentation to Dr Thomson and Dr Bodel, and thirdly, the report of the surveillance of the appellant which the learned Arbitrator summarised in para [57] of his reasons.
It is desirable to indicate the approach taken to the surveillance evidence at a little greater length because at least to my mind it was probably the chief factor in the decision in relation to incapacity at which the Arbitrator arrived.
Arbitrator Wynyard was well cognisant of the fact that the video had not been screened as would ordinarily be expected, and that that state of affairs would ordinarily undermine the bare investigator’s report which could only be said to give the investigator’s interpretation of what the film showed and his or her version of what was otherwise observed; see paras [58] and [59] of his reasons. But in para [59] he went on to say that because what was recorded by the investigators was not consistent with the appellant’s presentation to Dr Bodel,
Dr Thomson or Dr Islam, and because Dr Islam noted that she had complained that she was “very limited” in her ability to walk on 20 October 2015, the investigator’s report eight months later saying that she was seen to be walking without any difficulty was potent evidence against the existence of incapacity. Arbitrator Wynyard went on to refer again to the evidence of Dr Bodel and rejected it in paras [60] and [61]. In paras [63] and [64] he articulated the conclusions he had arrived at and the final basis upon which he did so, as follows:
“63. The onus is on an applicant to establish her case. The surveillance material was not objected to, and no evidence was lodged by the applicant suggesting that the descriptions of her activities were incorrect or exaggerated. The evidence does not satisfy her onus as to her continuing entitlement to weekly payments. I accordingly find that the applicant is capable of performing her pre-injury duties from the date of the first surveillance, 15 June 2016.
64. Although I am satisfied that the applicant no longer has an entitlement to weekly compensation, I am satisfied that the respondent should be liable for the applicant’s s.60 expenses, both past and future, in view of my findings as to injury. I make a general order in that regard.”

THRESHOLD MATTERS

Neither party contends that the requirement as to time in s 352(4) and the provision in respect of monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not met in this case. There is no threshold matter to rule upon before considering whether to proceed to determine the appeal.

FRESH EVIDENCE

Neither party applied to adduce fresh evidence upon the appeal.

SUBMISSIONS UPON APPEAL

The appellant’s submissions were grouped under six grounds of appeal. I will shortly summarise them and to some extent comment on them in this part of these reasons, disposing of some of them.
The first was that the learned Arbitrator erred in law in failing to give proper reasons. As developed, the appellant’s complaint appears to take two forms. First, it was submitted that para [11] of Arbitrator Wynyard’s reasons, referred to above, contained error in asserting that the respondent relied on the appellant’s presentation to Dr Thomson and on the proposition that the clinical notes did not support an assertion of injury on 4 August 2015. The appellant went so far as to submit that before the Arbitrator the respondent made no reference to the evidence of Dr Thomson at all and did not make a submission against injury on 4 August 2015 by reference to the clinical notes. With all respect, this overlooks the fact that Dr Thomson was referred to in oral argument by counsel for the respondent at T3.17, and at T6.23 it was submitted that the fall recorded in the clinical notes of November 2012 was the cause of the pain in 2015. There is no substance in this submission, but in any event it seems quite unnecessary for the appellant’s purposes, since the Arbitrator found both injuries and decided against the appellant on a different basis, namely that although they happened, they caused no relevant continuing incapacity.
This ground was further developed by criticising the way the learned Arbitrator dealt with the submissions as to the lack of potency in the investigator’s report in light of the contents of Dr Bodel’s report, in particular as to the appellant’s movements found on examination by the doctor. Finally the submission concluded by criticising the Arbitrator’s reasons as being silent as to why the investigator’s report should in effect prevail over the medical evidence, especially of Dr Bodel. Reference was made to submissions put by counsel for the appellant to Arbitrator Wynyard at pages 12 and 13 of the transcript of the argument.
Again with all respect I do not think that the learned Arbitrator’s reasons are deficient for ignoring these submissions. He dealt with his view of the contrast between the contents of Dr Bodel’s reports and the investigator’s report.
The second ground was that the Arbitrator erred in law in failing to take into account relevant evidence. This as I read the submissions was a complaint, essentially, that the totality of the evidence of Dr Bodel and its full import were not taken into account. It will be necessary to return to this.
The third ground was that the Arbitrator erred in law in that he took into account irrelevant evidence. This was developed in a number of respects.
First there was reference to the fact that the Arbitrator referred to the contents of some clinical notes which disclosed that the appellant was at one point pregnant and that she was in the process of being divorced, but he put those matters “to one side”. It was submitted that even though the Arbitrator said he was in effect ignoring them, that could not be accepted and that they must in some way have influenced him. But how they influenced him is not articulated and with all respect this argument seems to lack any force.
Further, it was submitted that the learned Arbitrator’s mention at para [55] of his reasons that Dr Thomson’s view that the appellant had developed a psychological condition, that was a relevant fact, involved some error, but again, there is no indication that this fact was in any way brought to critical account against the appellant.
The appellant also submitted that the learned Arbitrator took into account an irrelevant matter at [46]. However what Arbitrator Wynyard was there doing was pointing to the fact that Dr Bodel’s second report commenting on the MRI scan was brief and did not explain how the scan caused him to firm up an opinion which had previously been to some extent at least a tentative one. This was plainly an aspect of the Arbitrator’s conclusion that Dr Bodel’s opinion was robbed of force on a Makita basis.
The fourth ground was that the Arbitrator erred in failing to draw a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel)). The basis for this submission must be either or both that the respondent did not put into evidence the reports of Dr Maloney and Dr Harrington. But as to the former, the learned Arbitrator seems to have drawn the appropriate inference in the clearest terms in para [23] of his reasons. As to the later, I do not think there can be any doubt that Arbitrator Wynyard was cognisant of the fact that Dr Harrington’s report had not been put into evidence by the respondent and all there was of it were extracts in Dr Thomson’s report. But in any event, I cannot see in the transcript of the oral argument that Arbitrator Wynyard was asked to draw the same inference in relation to Dr Harrington as he was asked to draw and did draw in relation to Dr Maloney, and no decision maker is ever obliged to draw a Jones v Dunkel inference (Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [79]). In any event, as mentioned in para [30] supra, cl 44 of the 2016 Regulation provides further reason for not considering Jones v Dunkel in relation to Dr Harrington.
The fifth ground was that the Arbitrator erred in failing to give the appellant procedural fairness. This ground was briefly expounded by reference to earlier submissions, and came down to the assertion that if the Arbitrator were to take into account psychological factors in some way, he ought to have called for submissions from the appellant; likewise he should have done the same in relation to her pregnancy and divorce. But with respect, I do not think there is any substance in the view that the learned Arbitrator brought these matters to account in any real fashion in arriving at his decision. He did no more than note or mention them. I do not think it can be said that they played any necessary part in his decision.
The final ground, Ground 6, was that the Arbitrator erred in placing weight on the surveillance report evidence. It will be necessary to return to this. But a preliminary observation is that the appellant made forceful submissions to the effect that the report in the absence of a screening of the video and other deployment of the video as mentioned earlier herein robbed it of weight, and that the Arbitrator was well seized of those submissions as his reasons show.
The respondent’s submissions answered each of the grounds put forward by the appellant.
As to Ground 1, I read the respondent’s brief submissions as being to the same broad effect as my comments upon this ground, namely that it is in the end irrelevant.
Likewise I think the respondent’s response to Ground 2, which asserts that the argument in relation to it is irrelevant, is to a degree correct. However paras [5] and [6] of the respondent’s submissions in response to this Ground indicate that there was an issue as to the real effect of the evidence as to incapacity for work and it will be necessary to return to that.
As to Ground 3, the respondent’s response in my opinion is correctly to the effect that the Arbitrator did not take into account irrelevant evidence.
As to Ground 4, para [12] of the respondent’s submissions was to the effect that the assertion by the appellant that the learned Arbitrator had by inference preferred Dr Thomson’s evidence to that of Dr Bodel when the proper effect of a Jones v Dunkel inference should have precluded such an inference, was speculation. I think there is force in that criticism of this ground. I can see no real basis for the view that Arbitrator Wynyard relied in any critical respect of Dr Thomson’s evidence to hold that the appellant was not incapacitated for work.
The respondent’s response to this ground also included in para [13] the proposition that the Arbitrator was entitled to accept the evidence of the surveillance as reported in the investigator’s report “… as evincing a capacity for work by the applicant”. With all respect this comment seems out of place in relation to this ground but will need to be considered elsewhere.
As to Ground 5, the respondent points out that there was no objection to Dr Thomson’s comments about a psychological component of the appellant’s presentation nor an application for an adjournment to deal with them or a request to make further submissions. This is true but it seems an irrelevant submission. I have already indicated that I do not think there is any substance in this ground.
As to the final ground, Ground 6, the respondent submits that Arbitrator Wynyard was entitled to use the investigator’s report as he did, and that in effect, notwithstanding the criticisms made by counsel for the appellant about the failure to screen the video and otherwise deploy it as earlier referred to herein, any such shortcoming can be turned against the appellant upon the basis that the investigator’s report was not objected to unless the video were produced and screened.

DISCUSSION AND FINDINGS

Arbitrator Wynyard’s decision, properly characterised, was that upon the evidence the appellant had not satisfied him that she was in any way incapacitated for work by reason of the injuries he found had happened. This was a factual decision to the effect that she had not discharged her onus of proof because the evidence did not provide a sufficient foundation for a finding of any incapacity. (In this connection I think incapacity can be treated in the alternative as total or partial: although the claim was undoubtedly advanced upon the basis that the appellant was totally incapacitated for work, the case was finally put to the learned Arbitrator on the question whether there was “an incapacity”, which could be either total or partial incapacity.)
Just as the appellant carried the onus before the learned Arbitrator, she now carries the onus on this appeal. It is an onus in my opinion of showing error. Relevant error may be of fact, law or discretion, but as just mentioned, this decision is a factual one as to whether incapacity was made out. The nature of the enquiry upon an appeal of this kind is as explained by Roche DP in Raulston v Toll [2011] NSWWCCPD 25, paras [19]-[21]. The test is simply: was the Arbitrator’s decision fairly open to him upon the evidence, or does it display error by reference to the evidence?

At the outset of a consideration of the learned Arbitrator’s decision I think it is appropriate to say that an initial impression or overview of this case as a whole strongly suggests that once both injuries were found, and it was also found that the appellant was entitled to her medical expenses for treatment of the resultant condition of her back (which implies some level of symptoms and need for treatment), a finding of should have followed. Not only did those findings point strongly to that conclusion, the surrounding relevant evidence supported the appellant’s case. That evidence established that the appellant had an impressive work history, as the Arbitrator acknowledged (eg in para [42] of his reasons); that there was an absence of back trouble before the first injury and a continuation of it thereafter with worsening following the second injury (indications of this being available in the medical histories and certificates and to a limited extent in the appellant’s evidentiary statement); and that she had sought medical treatment from several sources and had not had treatment from a specialist neurosurgeon to whom she was referred, Dr Curtis, because of funding difficulties. Her return to work after the first injury, spoke of a willingness to work, and the fact that she was promoted to less arduous work thereafter, although quite some time after the first injury, explained at least from that time on how she could continue until the second injury. Then the circumstances of the second injury themselves at a common sense level implied the existence of some underlying problem: human experience, not just that of specialist medical practitioners, is that a chair or other seating which is not entirely satisfactory operates adversely upon a spine which is already troublesome more readily than it does adversely upon a normal spine.
So far as the respondent’s argument about the causal significance of the fall in November 2013 is concerned, it was rejected by the learned Arbitrator and no complaint is made about that on this appeal. It could hardly be significant when the appellant continued to work following it until her second injury in 2015 and only then went off work, and there was no indication that any doctor qualified by the respondent’s had been asked to comment upon its causal significance. Arbitrator Wynyard discounted it for another reason, namely the notorious caution which one must apply in looking at historical matter in medical treatment records, and given that a single entry between two other injuries is involved, that approach has obvious force. (It is perhaps worth noting at this point that a consideration of the medical histories in the reports and records against the appellant’s evidentiary statement reveal a number of discrepancies, but not only was nothing made of them by way of attack on the appellant’s case, they appear insignificant and are the type of non-critical discrepancy which can be discounted in accordance with the Court of Appeal authority in this area, including Mason v Demasi [2009] NSWCA 227, to which the learned Arbitrator referred.)
Given the strong initial impression created by a consideration of the evidence in this matter, namely that the appellant’s injuries as found by Arbitrator Wynyard on the probabilities caused some sort of incapacity, a close re-examination of his reasons for taking a contrary view is required. I have performed that task and it seems to me that the main features of the case which prompted his decision are the appellant’s presentation to the medical practitioners, in particular her abovementioned diffuse presentation to Dr Thomson, by comparison with what the investigator’s report said the surveillance of her had revealed, the Arbitrator’s view that Dr Bodel’s report was entitled to no weight, and, in particular, the activities described in the investigator’s report as being captured on the video film.
I regret to say that upon a close re-examination of the evidence and the learned Arbitrator’s evaluation of it, I cannot agree that anything in either displaces the initial impression.
I do not regard the appellant’s recorded presentation to Dr Thomson of real significance. It is not uncommon to see one doctor record a different presentation from that recorded by another or others; I think the most that can be said about Dr Thomson’s report is that his recording of the appellant’s complaints is more extreme than that of the other doctors. To the extent that Dr Thomson’s opinion can be interpreted as being that the appellant had no genuine organic spinal problems and rather that her complaints were entirely psychological, I do not think that that is entirely clear. The view that he thought there were some organic and some psychological features is open, but I think the respondent’s failure to adduce evidence from Dr Maloney, which grounded a Jones v Dunkel inference, fairly enables a fact finder in any event to attribute more weight to the evidence of the appellant’s doctors and diminished weight to Dr Thomson’s report. The learned Arbitrator did not do this in terms but I think it should be done. To the extent that failure to adduce evidence from
Dr Harrington could also ground a Jones v Dunkel inference, this position may be the stronger. But as already noted there was no obligation on the learned Arbitrator to draw such an inference and it does not matter that in the circumstances it was not drawn.
Giving greater weight to the appellant’s medical evidence means in respect of the evidence of Dr Bodel that it was in fact entitled to weight. As already indicated that was not the view of it taken by Arbitrator Wynyard. But I think also that the discounting of Dr Bodel’s evidence in his two reports, as abovementioned on an apparent Makita basis, was inappropriate on the part of the learned Arbitrator and constituted error. The line of appellant authority that has developed in relation to medical evidence in particular, holding, I think very sensibly, that much medical evidence is not really routinely susceptible of the sort of exegesis Makita might otherwise call for, is applicable in this situation. Moreover there was substantial correspondence between the opinions of Dr Bodel and the two sets of general practitioners. Such difference as there was seems to me to go to the level of incapacity, not to whether there was some incapacity.
Finally, when one takes what could be called a hard headed view of the investigator’s report, I do not think it is possible to say that the activities described in it are inconsistent with some incapacity for work and stand as an insuperable barrier to a finding to that effect. In addition to that view of mine as to the activities described by the investigators, with all respect to the learned Arbitrator I simply cannot accept para [59] of his reasons. I do not think the description of the appellant’s activities was necessarily inconsistent with her presentation to the doctors, and walking apparently freely for short distances over brief periods in my view is in no way inconsistent with the proposition that her ability to walk was “very limited”. In short, notwithstanding that there were things that could have been done by both parties in relation to the evidence of the investigators, once it is accepted that the relevant evidence to be considered was the content of their report, I think it was an extreme and erroneous conclusion to say that it negatived any incapacity.
The Arbitrator’s decision in my opinion should therefore be set aside in relation to his finding that weekly entitlements to compensation ceased on 15 June 2016.
This gives rise to a further enquiry namely: what level of incapacity should be found? It does not follow from anything said above that the total incapacity pressed for should have been found. Ultimately, as I have remarked, the case was simply contested upon the basis that there was “an incapacity”, and I think what can fairly be taken from Ms Ward’s medical evidence is that whilst Dr Bodel regarded her as totally incapacitated or at least unemployable on the open employment market the import of the opinions of the general practitioners reflected in the certificates is that she has during the relevant period of the claim for weekly payments been partially incapacitated for work. This is either or both upon the basis that she is fit for more restricted duties than before her back injuries or fit only for part time work, not fulltime work. These are expressions of opinion readily understood against the background of concepts of total incapacity and partial incapacity by reference to the law before the amendment to s 32A and s 37 of 1987 Act, but now require somewhat different consideration.
Accordingly, the question clearly presents itself as to the level of Ms Ward’s capacity beyond 15 June 2016 and continuing, having regard to the factors in s 32A of the 1987 Act. In particular, whether Ms Ward has a “current work capacity” or “no current work capacity” and whether she remains unfit for pre-injury employment as defined in s 32A of the 1987 Act. Following which, an assessment of Ms Ward’s entitlement to weekly payments under s 37 of the 1987 Act is required.
For these reasons the appeal is allowed.

ORDERS

Appeal allowed.
The order in paragraph 2.c. of the Arbitrator’s Certificate of Determination dated 5 September 2016 is revoked, and the following order is substituted in its place:
“2.c. $274.29 from 13 November 2015 to 15 June 2016 pursuant to s 37(3) of the Workers Compensation Act 1987.”
The Arbitrator’s finding that the appellant worker ceased to be entitled to weekly payments of compensation on 15 June 2016 is set aside.
The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant worker’s entitlement to weekly compensation from 16 June 2016 and continuing.

Larry King SC
Acting Deputy President

3 March 2017