Willoughby City Council v Kevric
[2009] NSWWCCPD 140
•28 October 2009
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR CITATION: Willoughby City Council v Kevric [2009] NSWWCCPD 140 APPELLANT: Willoughby City Council RESPONDENT: Zdravko Kevric FIRST INSURER: GIO General Limited SECOND INSURER: StateCover Mutual Limited FILE NUMBER: A1-3340/09 ARBITRATOR: Mr J Wynyard DATE OF ARBITRATOR’S DECISION: 20 July 2009 DATE OF APPEAL DECISION: 28 October 2009 SUBJECT MATTER OF DECISION: Injury; aggravation of disease; inadequate evidence by worker; application of Rail Services Australia v Dimovski & another [2004] NSWCA 267; (2004) 1 DDCR 648; whether the worker provided relevant particulars of his claim for lump sum compensation PRESIDENTIAL MEMBER: Deputy President Bill Roche HEARING: On the papers REPRESENTATION: Appellant (in the interests of StateCover Mutual Limited): Bartier Perry Respondent: Carters GIO General Limited: TurksLegal ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s determination of 20 July 2009 are revoked and the following orders made:
“1. The matter is remitted to the Registrar for referral to an Approved Medical
Specialist to assess the permanent loss of efficient use of the applicant worker’s right arm at or above the elbow as a result of his injury on 9 November 1998.
2. The respondent employer in the interests of GIO General Ltd is to pay the applicant worker’s costs as agreed or assessed.”
Each party is to pay his or its own costs of the appeal. BACKGROUND
1.The worker, Mr Kevric, started work as a labourer with Willoughby City Council (‘the Council’) in February 1991. Though he was later promoted to the position of team leader, his work remained very much “hands on” and, while he performed his normal duties, required him to engage in heavy lifting, digging and bending.
2.On 9 November 1998, he injured his right shoulder whilst lifting a concrete slab onto a truck.
3.In May 2002, he injured his left knee in the course of his employment and required several operations on that knee between 2002 and 2004. At some stage in 2005, he developed symptoms in his right knee and required surgery on that knee in September 2005. As a result of his knee injuries, Mr Kevric was off work for lengthy periods. When he returned to work, he performed only selected light duties. Regrettably, the exact nature of those duties is not adequately dealt with in the evidence and that has made the resolution of the issues in this case much more difficult than should have been the case.
4.Sometime in or about 2006, Mr Kevric experienced an increase in symptoms in his right shoulder and thumb, and pain in his neck and upper back. He also complained of loss of motion and occasional pain in his right elbow. The cause of these symptoms is disputed.
5.In an Application to Resolve a Dispute (‘the Application’) registered with the Commission on 1 May 2009, Mr Kevric claimed lump sum compensation in respect of injuries to his right arm, right hand, right shoulder, left and right knees, left and right legs, back, hips and neck, as a result of the injury on 9 November 2007, the injury in May 2004 and as a result of “nature and conditions”.
6.At the arbitration hearing on 1 July 2009, the Application was amended to claim compensation for only two injuries. First, he claimed $32,000.00 in respect of a 40 per cent loss of efficient use of his right arm at or above the elbow as a result of an injury to his right arm, right hand and right shoulder when lifting on 9 November 1998. Second, he claimed $12,475.00 as a result of a 9 per cent whole person impairment as a result of an injury to his right upper extremity as a result of “nature and conditions” between 1 January 2004 “to date”. It appears to have been agreed that the deemed date of injury in respect of the “nature and conditions claim” is 14 March 2008.
7.Both the judges of the former Compensation Court of NSW and the Presidential members of the Commission have criticised the use of the term “nature and conditions” without the provision of proper particulars (Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656; Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 at [65]). It is a meaningless expression that should not be used. A claim that alleges an injury as a result of repetitive use over time, or as a result of an aggravation of a disease, should clearly state that fact and properly identify the alleged cause of the claimed injury.
8.As at 9 November 1998, the Council was insured by GIO General Limited (‘GIO’) and from 31 December 2003 to date it has been insured by StateCover Mutual Limited (‘StateCover’).
9.In a Reply filed by GIO on 22 May 2009, the only issues said to be in dispute were “liability between insurers” and the “extent of injury”. By letter dated 27 January 2009, GIO offered to settle Mr Kevric’s claim in respect of the loss of efficient use of his right arm at or above the elbow in the sum of $8,000.00, representing a 10% permanent loss of efficient use under the Table of Disabilities.
10.In a Reply filed on behalf of StateCover on 22 May 2009, several issues were identified that are now, in light of the amendment to the Application, no longer relevant. However, the Reply attached two section 74 notices that identified several issues that remain in dispute. So far as the amended Application is concerned, those issues may be summarised as follows:
(a) that Mr Kevric’s claims for lump sum compensation had not been “duly made”;
(b) that Mr Kevric had not suffered any injury or permanent aggravation in relation to his right upper limb as a result of the nature and conditions of his employment from 31 December 2003 onwards because he worked on restricted duties/suitable duties throughout that period and his employment was not a substantial contributing factor to any injury or aggravation, and
(c) that Mr Kevric had not suffered any whole person impairment as a result of any alleged nature and conditions injury from 31 December 2003 onwards.
11.Mr Kevric did not give oral evidence at the arbitration and the matter proceeded with lengthy submissions by each of the parties’ legal representatives. In a reserved decision delivered on 20 July 2009 the Arbitrator did not agree that the injury on 9 November 1998 could be classed as a “frank injury” and found that it was an aggravation of a pre-existing disease. He was satisfied that Mr Kevric’s right upper limb symptoms worsened in 2006 and that he sustained an aggravation of the degenerative changes in his right upper extremity and he found StateCover liable for an aggravation injury under sections 4(b)(ii) and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’).
12.The Commission issued a Certificate of Determination on 20 July 2009 in the following terms:
“The Commission determines: -
1. I remit this matter to the Registrar for referral to an AMS on the following bases: -
Date of injury: Deemed 28 February 2008
Matters for assessment: right upper extremity
Method of assessment WPI
Evidence: For the applicant: Application to Resolve a Dispute plus attached documents.
For the respondent: Both Replies and attached documents together with the report of Dr Perko dated 13.4.06 which is one of the late documents attached to the Application to Admit Late Documents dated 30.6.09.
2. The respondent in the interests of StateCover is to pay the applicant’s costs as agreed or assessed. I certify the matter as complex and order an uplift of 20%.”
13.By an appeal filed on 17 August 2009, StateCover seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
14.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’).
15.It is not disputed that the monetary thresholds in section 352(2) are satisfied.
Time
16.The appeal was lodged on 17 August 2009, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
17.I grant leave to appeal.
ON THE PAPERS
18.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.”
19.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
20.The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) exceeding his jurisdiction by determining the issue of injury in relation to the November 1998 injury when there was no dispute that that incident consisted of a frank injury to Mr Kevric’s right shoulder/upper limb (‘the November 1998 injury’);
(b) finding that the injury on 9 November 1998 was subsumed with an aggravation of disease injury when such a finding was against the weight of the evidence (the November 1998 injury’);
(c) failed to apply Rail Services Australia v Dimovski & another [2004] NSWCA 267; (2004) 1 DDCR 648 (‘Dimovski’) (‘the November 1998 injury’);
(d) finding that Mr Kevric had suffered a “nature and conditions” injury consisting in the aggravation of a disease in his right upper limb in circumstances where there was no probative medical evidence to support such a finding (‘the aggravation injury’);
(e) finding that the section 66 claim for 9 per cent whole person impairment (attributed to the alleged “nature and conditions” injury to the right upper limb) was properly made and substantiated (‘whether the worker provided relevant particulars of his claim for lump sum compensation’), and
(f) denying StateCover procedural fairness by determining the undisputed issue of injury in respect of the 9 November 1998 incident without inviting submissions on that issue (‘procedural fairness’).
SUBMISSIONS, DISCUSSION AND FINDINGS
The November 1998 injury
21.StateCover submits that, as GIO never disputed liability for the 9 November 1998 incident, the Arbitrator exceeded his jurisdiction by determining there was no injury on that date. It relies on section 289(3) of the 1998 Act, which states that a dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim was made:
“(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.”
22.It is agreed that GIO never disputed that Mr Kevric injured his right shoulder in the course of his employment on 9 November 1998. However, StateCover’s submissions ignore the fact that one month had elapsed since GIO’s offer of settlement in its letter of 27 January 2009 and the filing of Mr Kevric’s Application in the Commission on 30 April 2009. Therefore, the claim for lump sum compensation in respect of the injury on 9 November 1998 was properly referred to the Commission for determination.
23.StateCover’s substantive complaint under this ground of appeal is that the Arbitrator failed to apply the principles in Dimovski. In that case the worker relied on a nature and conditions claim for the period 25 January 1990 to 30 June 1996, and on frank injuries on 9 May and 6 June 1995 against his first employer. He also relied on a nature and conditions claim for the period from 1 July 1996 to 15 August 1998, and a frank injury on 28 May 1998 against his second employer. Hodgson JA held (at [68]) that section 16 of the 1987 Act applies only if the injury “consists in” the aggravation etc of a disease. His Honour added that:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”
24.It is submitted on behalf of Mr Kevric that the facts in Dimovski are distinguishable because:
(a) no finding of disease “as such” was made in that case;
(b) on the medical evidence preferred by the Arbitrator, Mr Kevric suffered from a pre-existing disease (a chronic rotator cuff tear) at the time of the injury on 9 November 1998;
(c) the incident on 9 November 1998 initiated nothing. Rather, it aggravated that pre-existing disease process such that Mr Kevric was obliged for the first time to seek medical treatment for it;
(d) the incident cannot enliven section 4(a) of the 1987 Act as did the incidents in Dimovski and Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 because it did not cause or initiate any demonstrated pathology or pathological change;
(e) the nature of the incident on 9 November 1998 was accordingly an aggravation of a pre-existing disease process and it fell squarely within section 4(b)(ii) of the 1987 Act, and
(f) the subsequent employment of Mr Kevric with the Council involved labouring and concreting duties that further aggravated the same underlying disease process and resulted in deterioration in the pathology evident on radiology.
25.It is further submitted on behalf of Mr Kevric that the Arbitrator was entitled to have regard to and prefer the examination findings and opinions of Dr Perko who saw and treated Mr Kevric within two weeks of 9 November 1998 and there was nothing unreasonable in his doing so.
26.It is submitted on behalf of GIO that the Arbitrator relied on the evidence of Dr Perko and Dr Barrett and that his conclusion was sound in fact and law.
27.I do not accept the submissions made on behalf of Mr Kevric and GIO.
28.The fact that a worker relies on an event that allegedly caused an aggravation of degenerative changes does not mean that the injury cannot be a “personal injury” within the terms of section 4(a) of the 1987 Act.
29.In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (‘Mecha’) the Court of Appeal considered the nature of an injury in circumstances where the evidence suggested there had been an aggravation of degenerative changes. In that case the worker was injured in a fall on 11 February 1992 (a ‘frank injury’) in the course of his employment with the first employer. The nature of the injury was the aggravation of pre-existing degenerative changes in his back (aggravation of a disease). The worker suffered a further injury to his back with a second employer between 13 November 1995 and 29 April 1996 as a result of the nature and conditions of his employment with that employer (a ‘nature and conditions’ injury, which further aggravated his degenerative condition). The trial judge awarded compensation from 29 April 1996 and apportioned liability between both employers under section 22 of the 1987 Act.
30.On appeal it was held that though the injury on 11 February 1992 could have satisfied either definition of “injury” in section 4 (either a ‘frank injury’ or ‘injury in the nature of an aggravation of a disease’) the words “injury consists in the aggravation …of a disease” in section 16(1) of the 1987 Act should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (Sheller JA at 616). In other words, the ‘frank injury’ and the ‘nature and conditions injury’ were considered to be separate and distinct injuries each giving rise to separate rights and liabilities.
31.Powell JA said at 619:
“It was open to the trial judge to hold that the worker’s impairments were due to two discrete ‘injuries’ - a simple ‘injury’ in 1992 and an ‘injury’ brought about by the nature and conditions of his employment with the first respondent and that he did not err in doing so. This being so, it seems to me that the case did not call for the application of the provisions of s 16 of the Act.”
32.The reasoning in Mecha was applied in Dimovski.
33.In the present case, the evidence is that Mr Kevric injured his right shoulder as he lifted a large and heavy piece of concrete in the course of his employment on 9 November 1998. His shoulder was extremely painful and he was hardly able to move it. He immediately attended on his local doctor, Dr Sekules, who referred him to Dr Perko, orthopaedic surgeon. Dr Sekules also arranged for an ultrasound, which was performed on 10 November 1998 and revealed an 18mm by 13mm full thickness tear through the right supraspinatus tendon with impingement on abduction.
34.Dr Perko reported on 22 March 2007 that he saw Mr Kevric on 19 November 1998. On that day he took a history that Mr Kevric had had pain in his right shoulder for approximately two to three months prior (to November 1998), though his symptoms were relatively minor. His pain was significantly aggravated on 9 November 1998 after work duties that involved considerable heavy lifting and overhead work. On examination there was wasting of both supraspinatus and infraspinatus. Mr Kevric had a painful arc of motion and impingement signs together with subacromial crepitus. The long head of the biceps tendon was intact. Dr Perko noted the findings in the ultrasound and also noted that radiographs performed on the same day as the ultrasound demonstrated some anterior acromial changes. In his opinion, Mr Kevric presented with “an aggravation of underlying chronic rotator cuff tear.” Dr Perko recommended a rehabilitation program and a gradual return to activities.
35.Dr Mahony assessed Mr Kevric at the request of his solicitors on 1 February 2007. He took a history of the 9 November 1998 incident and concluded that Mr Kevric had developed symptoms referable to a rotator cuff lesion of the right shoulder and that there was evidence of a “tear of the supraspinatus tendon with right subdeltoid bursitis and a right bicipital tendonitis”. He thought it was consistent that the incident described on 9 November 1998 had produced such lesions. He also made further comments about the nature of Mr Kevric’s work, which are dealt with below.
36.Dr Machart examined Mr Kevric on behalf of GIO on 24 April 2008 and reported on 30 April 2008. He recorded that Mr Kevric injured his right shoulder in 1998 when he experienced a sudden onset of pain whilst loading a large rock onto a truck. He took no time off work, but his shoulder remained painful subsequently. There was no further right shoulder injury.
37.Dr Machart had available to him the investigations from 1998 and he diagnosed Mr Kevric to have a rotator cuff tear in the right shoulder “stemming from the injury in 1998.” He considered the rotator cuff tear to be a permanent injury that had not been repaired. He stated that no further injury occurred subsequent to 1 January 2002 that contributed to that injury and, therefore, no proportion of the right shoulder condition was attributable to the nature and conditions of employment. He assessed Mr Kevric to have a 10 per cent loss of efficient use of his right arm at or above the elbow as a result of the 1998 injury.
38.Professor Ehrlich examined and reported on Mr Kevric on behalf of StateCover on 25 September 2007. He noted that Mr Kevric proved to be a very vague historian who was incapable of providing a sequence of events as to what might have caused his problems. He took a history that some time in the late 1990’s Mr Kevric tried to lift and throw a piece of concrete and that his right shoulder troubled him and that he still had pain in it. After noting the history and the ultrasound evidence of right rotator cuff disruption, Professor Ehrlich concluded that it was not possible to deny a causal link between the rotator cuff disruption and the incident in the late 1990’s.
39.Having regard to the evidence, Mr Kevric’s submission that the incident on 9 November 1998 “initiated nothing” is incorrect. Whatever symptoms Mr Kevric had in his right shoulder leading up to 9 November 1998, they were of little, if any, significance and they did not prevent him from performing his normal duties. The incident on 9 November 1998 was significant. He lifted an extremely heavy weight (recorded by Dr Mahony to be between 50-60 kgs) and placed it onto a truck. In the course of that manoeuvre Mr Kevric developed extreme pain in his right shoulder and, according to Dr Sekules, was hardly able to move it. The ultrasound evidence is clear that he had a full thickness tear of his supraspinatus tendon and the overwhelming expert medical evidence, which I accept, is that that tear was caused by the lifting incident at work on 9 November 1998.
40.In these circumstances the principles stated in Mecha and applied in Dimovski are applicable. The fact that Dr Perko described Mr Kevric’s condition as an aggravation of an underlying chronic rotator cuff tear does not detract from the nature of the incident involved. I am comfortably satisfied that Mr Kevric sustained a full thickness tear through his right supraspinatus tendon as a result of lifting a heavy piece of concrete at work on 9 November 1998. That incident is a section 4(a) injury and, even if it could also be categorised as an injury under section 4(b)(ii), it does not mean that it “consists in” the aggravation of a disease (per Hodgson JA in Dimovski at [68]).
The aggravation injury
41.Whilst I have found that Mr Kevric sustained a section 4(a) injury to his right shoulder on 9 November 1998, that finding does not rule out the possibility that he may also have sustained a further injury in the nature of an aggravation of a disease under section 4(b)(ii) of the 1987 Act (an aggravation injury) as a result of the work he performed with the Council after 31 December 2003.
42.Mr Kevric’s evidence on this issue is unsatisfactory and unhelpful. His statement of 20 April 2009 reveals that he started work with the Council in 1991 as a labourer and that he was later promoted to the position of team leader. Both roles involved labouring work and included heavy lifting, digging and bending. His statement refers to the November 1998 incident and to injuries to his knees in May 2002 and May 2004. As a result of his knee injuries, Mr Kevric was off work for several unidentified periods and then given lighter duties. His statement then continues (at paragraphs five and six):
“In addition to the above accidents, I also sustained injuries as a result of the nature and conditions of my employment at Willoughby City Council. Over the years my work has mostly involved physical labouring work, in particular heavy lifting and bending. Performing such work on a regular basis over so many years has caused me to experience pain in my back, hips and neck as well as my legs, right arm, hand and shoulder.
As a result of my injuries, I continue to experience pain and discomfort and restrictions of movement to my right arm, right hand, right shoulder, legs, knees, neck and back. I have difficulty sitting for long periods, walking long distances and standing for long periods. I experience pain when performing lifting, squatting, kneeling and bending.”
43.But for the fact that Mr Kevric’s employment has been significantly interrupted as a result of his knee injuries and subsequent surgery to his knees, I would have little hesitation in accepting that work as a labourer with a council would involve heavy lifting, digging and bending and that that work would be liable to place a strain on a worker’s right upper limb and have the potential to cause an aggravation of degenerative arthritic changes. However, Mr Kevric’s evidence makes no attempt to explain the nature of his duties and the impact they had on him from 1 January 2004 to date, the relevant period of the claim against the Council covered by StateCover. Given his serious knee injuries and subsequent surgery from 2002 to 2004, that is an extraordinary omission.
44.In order to piece together details of the duties Mr Kevric performed from 1 January 2004 it has been necessary to refer extensively to the inadequate medical histories contained in the various medical reports in evidence.
45.Mr Kevric underwent a partial medial and lateral meniscectomy with medial femoral chondroplasty to his left knee on 31 July 2002 at the hands of his treating surgeon, Dr Gray. After reviewing Mr Kevric on 21 November 2002, Dr Gray reported on 25 November 2002 that Mr Kevric was back at work “performing all activities he so desires”. Those duties are not identified.
46.Mr Kevric underwent further surgery to his left knee on 22 October 2003. It is not known when he returned to work after that surgery, but Dr Gray recorded in his report of 2 February 2004 that it was not unreasonable for Mr Kevric to try and return to work on selected duties in a supervising capacity avoiding lifting, squatting and kneeling.
47.Mr Kevric underwent further surgery to his left knee (a high tibial osteotomy) in early May 2004 and was off work as a result of that surgery until some time in August 2004 when Dr Gray declared him fit for selected duties in a supervisory capacity avoiding heavy lifting and repetitive squatting and kneeling.
48.Mr Kevric saw Dr Sekules on 18 August 2004 when it was noted he had been able to get back to “very light work” but he was still having physiotherapy and continuing exercises.
49.Dr Gray reported on 22 September 2004 that Mr Kevric had returned to selected duties driving a truck and inspecting drains. That work required him to get in and out of a high truck many times during the day and caused an increase in pain in his left knee. Dr Gray felt that those duties were inappropriate and that Mr Kevric could return to work as a concreting supervisor with the proviso that he avoid repetitive squatting and kneeling and avoid lifting weights greater than 15 kilograms. Dr Gray reported on 19 November 2004 that Mr Kevric was coping well with selected supervisory duties at work. He did not provide any details as to the nature of those duties.
50.Mr Kevric was admitted to hospital again on 4 May 2005 for the removal of the plate and screws from his left tibia. It is not known how much time off work, if any, Mr Kevric had after this procedure.
51.At some stage in 2005, Mr Kevric developed symptoms in his right knee and an MRI scan performed on 5 September 2005 revealed a tear of the medial meniscus. As a result, he underwent a partial medial and lateral meniscectomy to his right knee on 21 September 2005. Again, it is not known when Mr Kevric returned to work after this operation.
52.Dr Gray stated on 27 October 2005 that, as Mr Kevric’s duties required a lot of squatting and kneeling, he should refrain from returning to those duties until the joint effusion settled.
53.On 22 December 2005, Dr Gray stated that Mr Kevric was able to continue to perform his working duties relatively comfortably. Again, however, he did not indicate what those duties were.
54.After referring to the right knee surgery, Dr Sekules said, “from then on Mr Kevric was able to work at the Council on very restricted, light duties” (report 14 February 2007, page three).
55.In March 2006, Mr Kevric complained to Dr Sekules about his right shoulder and right thumb, but the cause of that complaint is not recorded.
56.Mr Kevric underwent an ultrasound of his right shoulder on 22 March 2006, which revealed a full thickness tear of the supraspinatus tendon with thickening of the subacromial subdeltoid bursa and a small amount of fluid in the biceps tendon sheath. The biceps tendon was intact.
57.Mr Kevric saw Dr Perko in April 2006. In his report of 13 April 2006, Dr Perko recorded that Mr Kevric recently had increasing symptoms associated with his right thumb, neck, upper back, and right elbow. On examination, the doctor noted a restricted range of neck movements with pain on extension, rotation and lateral flexion, especially to the right. Mr Kevric also had evidence of a chronic rotator cuff tear in the right shoulder with weakness of forward elevation and a long head biceps rupture. There was also considerable subacromial crepitus present. There was an effusion in the right elbow. Movement of the right elbow was restricted with some increased bony prominence consistent with primary degenerative arthritis of the elbow. In respect of the right thumb, there was considerable joint crepitus and tenderness consistent with carpo-metacarpal joint arthritis.
58.Mr Kevric underwent x-rays of his right shoulder, elbow and thumb on 24 April 2006. The x-rays of the right shoulder revealed bony spurring and sclerosis of the greater tuberosity and mild AC joint degenerative changes. The x-rays of the right elbow revealed osteoarthritic changes and the x-rays of the right thumb revealed marked osteoarthritic changes at the CMC joint and mild changes at the MCP joint.
59.Dr Perko again reviewed Mr Kevric on 15 June 2006 when he noted that the right shoulder symptoms were improving, but he still had pain related to his right thumb.
60.At review on 3 August 2006, Dr Perko noted that Mr Kevric was making some progress with treatment for his right shoulder and elbow, but continued to complain of aching in the right thumb, particularly with heavier activities. He added that Mr Kevric had “difficulty using heavy tools such as a sledge hammer”. Dr Perko did not record when or in what circumstances Mr Kevric used heavy tools or precisely what difficulty he experienced when he used such tools. The doctor recommended that Mr Kevric continue to use a splint for his right thumb, as had been recommended in June 2006. He added that Mr Kevric should have “some flexibility with work and avoid aggravating activities”.
61.Dr Mahony examined Mr Kevric for medico-legal purposes on 1 February 2007. After referring to the 9 November 1998 injury, Dr Mahony reported that Mr Kevric continued working until his right shoulder pain became worse in about 2004. As a result, he had physiotherapy treatment and was off work for about 10 days. This history must be incorrect as it is inconsistent with Dr Sekules’ note that the right shoulder symptoms recurred in March 2006. Dr Mahony recorded that Mr Kevric carried out light duties and avoided heavy lifting. He said his work involved changing signs and other less strenuous tasks that the doctor did not identify. Nor did the doctor identify the physical activities involved in changing signs. Precisely when Mr Kevric performed work changing signs is not recorded. At the time of the report, Mr Kevric was “carrying out restricted duties” that were not identified.
62.Dr Mahony also recorded that Mr Kevric’s right thumb symptoms developed in 2000 and that he was off work in 2004 for about seven months because of his left knee surgery. Whilst Mr Kevric did have knee surgery in 2004, Dr Sekules’ history suggests that the thumb symptoms did not start until much later. Dr Mahony wrongly recorded that the right knee surgery was performed on 21 September 2006 when it was in fact performed in September 2005.
63.Dr Mahony listed Mr Kevric’s complaints. Excluding those that are not relevant to the current proceedings, they included:
(a) pain in the back of his neck which radiated to the occipital area and to both shoulders and hands, the right more so than the left;
(b) pain in the right shoulder with slight restriction of movement of the right shoulder and worse pain on lifting;
(c) pain and restriction of movement of the right elbow which Mr Kevric related to the nature of his work, and
(d) pain at the base of the right thumb which Mr Kevric related to his work.
64.Under “Opinion”, Dr Mahony stated:
“Mr Kevric does appear to have developed symptoms referrable to a rotator cuff lesion of the right shoulder and there is evidence of a tear of the supraspinatus tendon with right subdeltoid bursitis and right bicipital tendonitis.
It is consistent that that incident he described on the 9th November 1998 has produced such lesions.
He has added symptoms referrable to a right lateral epicondylitis in association with degenerate changes as well as degenerate changes in the carpometacarpal joint of the right thumb.
It is consistent that the nature of his work has aggravated a potentially irritable right shoulder and right thumb.
He also has added symptoms referrable to a cervical strain in association with degenerate changes with nerve root irritation affecting the upper limbs and I would consider that altered function of the right shoulder has aggravated his neck symptoms with radiating symptoms to his hands.”
65.The balance of Dr Mahony’s report dealt with the knee injuries.
66.Dr Perko reported to Mr Kevric’s solicitors on 22 March 2007. It does not appear that the doctor re-examined Mr Kevric and, therefore, his last examination was on 3 August 2006. Dr Perko referred to the 1998 injury and then referred to Mr Kevric’s complaint of increasing pain in the shoulder and neck region, as well as in the right elbow and thumb on 13 April 2006. He noted that Mr Kevric “had difficulty with heavy work”. He added that Mr Kevric found it difficult to sleep on his right side, wash behind his back and to do his usual work, though he did not identify what Mr Kevric’s usual work involved. He then recorded that it was not difficult for Mr Kevric to manage his personal hygiene, reach a high shelf and lift a weight of five kilograms above shoulder height. In his opinion, Mr Kevric had degenerative conditions involving the right elbow, thumb and shoulder, which had been aggravated by the nature and conditions of his employment. He did not indicate what it was about Mr Kevric’s employment that caused the aggravation, when or how the aggravation occurred, or whether the aggravation was continuing. He thought Mr Kevric would be able to manage lighter work activities but would have difficulty continuing with heavier work involving lifting or overhead activities.
67.On 26 February 2008, Dr Mahony provided a further assessment of Mr Kevric’s whole person impairment allegedly resulting from the “nature and conditions” of his employment with the Council from 1 January 2004 to date. He assessed a 20 per cent whole person impairment, which included, among other things, a 9 per cent whole person impairment as a result of the condition of Mr Kevric’s right upper extremity.
68.The only other evidence relevant to the “nature and conditions” claim is the report from Professor Ehrlich of 25 September 2007. Mr Kevric told the Professor that he could not do much heavy lifting, digging or shovelling. He still had pain in his right shoulder, but coped with domestic chores and could mow the lawn. His duties at that time were to put up signs and do general duties, which were “not very heavy.” He added, however, that some of the work he was doing could be “quite trying but he was coping with it satisfactorily.” The Professor did not record in what way the work was “trying”. Under “Opinion”, Professor Ehrlich stated that it was understandable that Mr Kevric had difficulty with the physically demanding work he had been doing in the past, however, he was quite capable of coping with his present job and should be encouraged to do so. On examination, there were no clinical abnormalities about the right shoulder, which displayed a full range of movement. Professor Ehrlich does not seem to have taken any history of pain in the right elbow, but he noted that the elbow had a “carrying angle” which was greater than on the left side. The Professor has no note at all about right thumb symptoms. He did not refer to having examined any x-rays of the right thumb or elbow.
69.Dealing with Dr Mahony’s evidence, the Arbitrator correctly noted that the “mere recitation of the general phrase, ‘nature and conditions’, infringes the requirements expected of an expert witness” (Statement of Reasons (‘Reasons’) at [51] citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’)). He concluded that, without an explanation from Dr Mahony as to what Mr Kevric’s duties were and how long he performed them, the Commission was unable to understand the basis of Dr Mahony’s opinion because the facts and assumptions upon which it was based were not explained. The Arbitrator therefore rejected Dr Mahony’s evidence and accepted Dr Perko’s evidence as to the consequences of the 9 November 1998 injury.
70.The Arbitrator inferred from the histories recorded by Drs Gray and Perko that Mr Kevric’s duties were of a heavy nature and involved the use of his right shoulder (Reasons at [65]). He felt that further corroboration of that fact was found in the report of Dr Barrett of 6 December 2006. He therefore concluded that Mr Kevric had established an aggravation injury under sections 4(b)(ii) and 16(1)(a)(i) of the 1987 Act and under the principles discussed in Fletcher International Exports v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247 (‘Barrow’).
71.StateCover challenges the Arbitrator’s conclusions in respect of the “nature and conditions” claim and submits that, unlike Barrow, the present case involves a frank injury to the right shoulder in November 1999. It also submits that the Arbitrator erred in ignoring Dr Sekules’ history that, after the right knee surgery in September 2005, Mr Kevric only worked on very restricted light duties.
72.StateCover argues that Dr Perko’s history provides an insufficient basis on which to find that Mr Kevric suffered an aggravation injury as a result of the duties he performed in 2006. Dr Perko’s history in his report of 3 August 2006 actually indicates that Mr Kevric’s shoulder and elbow were “making some progress with treatment”, rather than worsening or being made symptomatic as a result of using heavy tools such as a sledgehammer. Therefore, so it is argued, the evidence does not support a conclusion that the “nature and conditions” of employment caused an additional injury to Mr Kevric’s right shoulder and elbow.
73.In respect of the right thumb, it is submitted that some aching in a pre-existing osteoarthritic right thumb does not amount to evidence of any permanent aggravation. It therefore follows, so it is argued, that Dr Perko’s conclusion in his report of 22 March 2007 that Mr Kevric’s conditions had been “aggravated by the nature and conditions of the employment” is entitled to no more weight than Dr Mahony’s conclusions, which are in substantially the same terms. StateCover submits that the Arbitrator should have found that Mr Kevric failed to discharge the onus of proof of establishing, on the balance of probabilities, that his duties caused an injury or an aggravation of a disease in his right shoulder, elbow or thumb.
74.In support of the Arbitrator’s findings, it is submitted on behalf of Mr Kevric that:
(a) Dr Perko’s history in his August 2006 report provides a factual historical basis for the opinion as to causation advanced by the doctor and it is not to the point that Mr Kevric did not complain of an increase in shoulder symptoms at that time. He clearly complained to Dr Perko of an increase in shoulder symptoms in April 2006 and thereafter and there can be no doubt that the contemporaneous radiology confirmed a clear advance in the underlying pathology when the ultrasounds in 1998 and 2006 are compared;
(b) the history of “sledgehammer work” in August 2006 provides a clear factual basis capable of supporting Dr Perko’s opinion that Mr Kevric had been performing heavy manual work after 1998 (and in 2006 particularly) and that his performance of such work led to an aggravation of his shoulder disease;
(c) Dr Perko’s opinion as to causation is not a bare ipse dixit and is supported by his contemporaneous note of heavy work being undertaken in the course of his employment with the Council in 2006, and
(d) given the clear radiological evidence of an advance in Mr Kevric’s shoulder pathology between 1998 and 2006 and the contemporaneous complaints of increasing shoulder problems in April 2006, Dr Perko’s opinions were more consistent with the contemporaneous complaints and objective evidence.
75.GIO has made no useful submissions on this issue.
76.Given the unsatisfactory state of Mr Kevric’s evidence, the fact that the Arbitrator made no reference to the critical history recorded by Dr Sekules as to the work Mr Kevric performed after the September 2005 surgery (see [54] above), and that the Arbitrator considered and gave weight to a report that is not in evidence (Dr Barrett’s report of 6 December 2006 was objected to and rejected (T12.22)), and for the additional reasons listed below, I do not accept the Arbitrator’s conclusions in respect of the alleged aggravation injury.
77.Mr Kevric’s statement has not addressed the issues the Commission must determine. Apart from making a general allegation that his work involved heavy lifting, digging and bending, it failed to consider the fact that after his knee surgery in 2002 he was placed on light and/or supervisory duties. His statement that he “sustained injuries as a result of the nature and conditions of [his] employment with Willoughby City Council” is a conclusion that is of limited, if any, probative value given the lack of detailed evidence of the nature of his duties after his knee surgery.
78.That the Commission has been forced to attempt to reconstruct Mr Kevric’s case from the inadequate medical histories is a most unsatisfactory situation that should not have occurred. An analysis of the medical histories suggests that for a good part of 2004 Mr Kevric was not even at work, as he was recovering from significant knee surgery. When he did return to work Dr Gray felt in August 2004 that he could return to “selected duties in a supervisory capacity, but avoiding heavy lifting”. Those restrictions were significant and, without any useful evidence from Mr Kevric, I infer that those restrictions were implemented when he returned to work. Dr Gray confirms that fact in his September 2004 report that states Mr Kevric was employed on selected duties driving a truck and inspecting drains. It cannot be suggested that those duties would have aggravated the degenerative changes in his right upper limb. However, as a result of the unsuitability of truck driving (so far as Mr Kevric’s knees were concerned) Dr Gray appears to have certified him fit to return to work as a concreting supervisor with the proviso that he avoided lifting weights greater than 15 kilograms. Dr Gray added in November 2004 that Mr Kevric was coping well with “selected supervisory duties” but he did not identify the exact nature of those duties.
79.Mr Kevric underwent surgery to his right knee in September 2005 and his evidence is silent as to the duties he performed after that surgery. Significantly, however, Dr Sekules’ report of 14 February 2007 states that “from then on” Mr Kevric was able to work at the Council on “very restricted, light duties”. Again, the exact nature of those duties is not identified. The only inkling of the nature of the work Mr Kevric performed is in the histories recorded by Dr Mahony and Professor Ehrlich. Dr Mahony recorded that the work involved “changing signs and other less strenuous tasks”. He avoided heavy lifting. This history is consistent with Professor Ehrlich’s history in 2007 that Mr Kevric was employed to put up signs and do general duties that were not very heavy. Against this is the history recorded by Dr Perko in August 2006 that Mr Kevric had difficulty using heavy tools such as a sledgehammer. Dr Perko did not record when, where, or in what circumstances Mr Kevric used heavy tools. Nor did he suggest that the symptoms Mr Kevric complained of when he saw him in April 2006 had resulted from using heavy tools or other heavy activities at work. His report of April 2006 is completely silent as to the cause of Mr Kevric’s complaints of increasing symptoms in the right thumb, neck, upper back, and right elbow.
80.Dr Perko stated in April 2006 that there was evidence of a chronic rotator cuff tear in the right shoulder (as there was in 1998) and of a rupture of the long head of the biceps. Mr Kevric’s main complaints in April 2006 were about his right thumb, neck and upper back. This does not provide any persuasive support for the conclusion that Mr Kevric suffered an aggravation injury to his right shoulder or elbow as a result of the duties he was performing in or about April 2006.
81.Nowhere has Mr Kevric properly explained the nature of his duties in 2006 or the development of his symptoms. Mr Kevric’s case is based on Dr Perko’s history in August 2006 that he continued to complain of “some aching in the right thumb particularly with heavier activities” and that he had “difficulty using heavy tools such as a sledge hammer”. In the light of Dr Sekules’ evidence that Mr Kevric was working on “very restricted light duties” after the September 2005 knee surgery it seems unlikely that Mr Kevric worked extensively with heavy tools. If he did, it is impossible to determine, due to a lack of relevant evidence, if the use of such tools contributed to an aggravation of a disease process in his right upper limb. The same comment applies to Dr Perko’s statement in his March 2007 report where he recorded that Mr Kevric had “difficulty with heavy work”. It is not known what that heavy work was, how often Mr Kevric performed it, or how it affected his right upper limb.
82.It follows that Dr Perko’s conclusion that the degenerative conditions in Mr Kevric’s right elbow, thumb and shoulder were “aggravated by the nature and conditions of his employment” is unpersuasive because the doctor has not taken an adequate history of the nature of the relevant duties said to have caused the aggravation and has not explained the basis for his conclusion. For the same reason that the Arbitrator rejected Dr Mahony’s conclusion with respect to the “nature and conditions” claim, I also reject Dr Perko’s conclusion on this issue.
83.In the absence of a proper history as to the cause of the symptoms complained of in 2006 together with a proper clinical analysis of the findings in the investigations taken at that time, the evidence of additional changes in the 2006 ultrasound compared to the 1998 ultrasound does not establish that Mr Kevric sustained an aggravation injury as a result of his work activities after January 2004. Mr Kevric’s submission that the 2006 ultrasound reveals additional pathology compared to the 1998 scan fails to acknowledge that the Commission is concerned with the cause of that pathology. The evidence does not adequately deal with that issue. The only doctor to address it is Dr Mahony, who, though he appears to have linked all the changes to the 1998 injury, has not explained the basis for his conclusion. It may well be that the additional changes revealed in the 2006 ultrasound have resulted from the 1998 injury, however, given the inadequate state of the evidence, it will be for the Approved Medical Specialist to determine the extent of the loss that has resulted from the 1998 injury.
84.Mr Kevric has not discharged the onus of proof on the balance of probabilities and has not established that the duties he performed with the Council after 1 January 2004 contributed to the aggravation of a disease in either his right shoulder or right elbow or right thumb.
85.If I am wrong on this issue and it is thought that Mr Kevric has established that he sustained an aggravation injury to his right upper extremity as a result of his duties with the Council after January 2004, there is no persuasive evidence that the effect of that aggravation is continuing.
Whether the worker provided relevant particulars of his claim for lump sum compensation
86.In view of my finding that Mr Kevric has not established an aggravation injury as a result of the work he performed after 1 January 2004, it is not necessary to consider this ground of appeal in detail, however, in view of submissions made by StateCover, I make the following observations.
87.By virtue of a convoluted and tortured interpretation of Dr Mahony’s report of 1 February 2007, StateCover submits that the claim for whole person impairment as a result of injury to the right upper extremity was not “properly made or logical and could not be seen as substantiating a section 66 claim for 6 per cent WPI (right upper limb) on the basis of a nature and conditions injury.” I do not accept this submission. The purpose of sections 281 and 282 of the 1998 Act is to enable claims for lump sum compensation to be resolved expeditiously, fairly and without unnecessary expense. To that end workers must provide “relevant particulars” about the claim. Those particulars must identify the injuries alleged to have been received and the impairments alleged to have resulted from them.
88.Though the particulars provided in the present case were amended on several occasions, I am satisfied that Mr Kevric’s solicitors provided “relevant particulars” of the claim in letters dated 29 February 2008 and 14 March 2008, which attached multiple medical reports including those from Dr Mahony. Though Dr Mahony’s evidence has ultimately not been accepted in respect of the alleged aggravation injury, his reports provided StateCover with clear particulars of the injuries alleged and the impairments alleged to have resulted from those injuries. At page six of his 1 February 2007 report, Dr Mahony stated that it was consistent that the nature of Mr Kevric’s work had aggravated a potentially irritable right shoulder and right thumb. Though the 2007 report failed to properly identify which impairments resulted from the 1998 injury and which resulted from the aggravation injury, that omission was rectified in a further report from Dr Mahony dated 26 February 2008. A worker is required to provide “relevant particulars” not “perfect particulars”. The particulars provided in the present case were sufficient to comply with section 282 of the 1998 Act and the relevant WorkCover guidelines (see Walker v Roberts [2009] NSWWCCPD 66 at [39] – [48]). Claims do not have to be “substantiated” as StateCover has submitted.
Procedural fairness
89.In view of the findings I have made above, it is not necessary to determine this issue.
CONCLUSION
90.Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded that the true and correct position is that Mr Kevric injured his right shoulder in the course of his employment with the Council when he lifted a heavy piece of concrete on 9 November 1998, and, though it may also have aggravated degenerative changes, that injury is a section 4(a) injury (Dimovski). Mr Kevric has failed to discharge the onus of proof in respect of the alleged aggravation injury said to have occurred as a result of the performance of his duties with the Council after 1 January 2004. Given the unsatisfactory state of preparation of this case, I have revoked the Arbitrator’s uplift of costs of 20% for complexity.
DECISION
91.Paragraphs one and two of the Arbitrator’s determination of 20 July 2009 are revoked and the following orders made:
“1. The matter is remitted to the Registrar for referral to an Approved Medical
Specialist to assess the permanent loss of efficient use of the applicant worker’s right arm at or above the elbow as a result of his injury on 9 November 1998.
2. The respondent employer in the interests of GIO General Ltd is to pay the applicant worker’s costs as agreed or assessed.”
COSTS
92.Though StateCover has succeeded in its principal grounds of appeal, it has failed in respect of two other grounds that were without merit. The resolution of the case was made significantly more difficult because of the unsatisfactory state of preparation of Mr Kevric’s case. It may well have been that, had his case been properly prepared and presented, no appeal would have resulted. In these circumstances it is appropriate that each party pay his or its own costs of the appeal and that is the order I make.
Bill Roche
Deputy President28 October 2009
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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