Witt v Q B Interiors (NSW) Pty Ltd
[2011] NSWWCCPD 19
•30 March 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Witt v Q B Interiors (NSW) Pty Ltd [2011] NSWWCCPD 19 | ||||
| APPELLANT: | Gary Witt | ||||
| RESPONDENT: | Q B Interiors (NSW) Pty Ltd | ||||
| INSURER: | Allianz | ||||
| FILE NUMBER: | A1-6739/10 | ||||
| ARBITRATOR: | Mr Paul Sweeney | ||||
| DATE OF ARBITRATOR’S DECISION: | 8 December 2010 | ||||
| DATE OF APPEAL DECISION: | 30 March 2011 | ||||
| SUBJECT MATTER OF DECISION: | Burden of proof; proof of injury; weight of evidence; sufficiency of reasons | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Firths – The Compensation Lawyers | |||
| Respondent: | Goldbergs Lawyers | ||||
ORDERS MADE ON APPEAL: | The order of the Arbitrator recorded in the Certificate of Determination dated 8 December 2010 is confirmed. No order as to costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
Mr Gary Witt, the appellant, who is 47 years of age, was employed by Q B Interiors Pty Limited (the respondent) on 9 June 2005 to work in his trade as a gyprock plasterer. He was engaged to carry out that work at commercial premises, being a radio station studio at Pyrmont, New South Wales.
Mr Witt alleged that, on Monday 20 June 2005, he received a head injury in the course of that employment when he struck his head on a T-bar, or ceiling grid, while standing on a ladder at the Pyrmont premises. Mr Witt ceased work early on that day and returned to his home. He alleged that he reported the injury to his supervisor. Mr Witt was absent from work thereafter until his return on 27 June 2005. He was absent from work on two occasions thereafter and, on 18 July 2005, his employment came to an end.
Mr Witt’s absences from work had been occasioned by his experience of severe headache, nausea and vomiting. He remained resting at his home until his wife arranged for his admission to the Emergency Department of Wyong Hospital on 23 June 2005. It appears that some treatment was rendered at that hospital and a diagnosis of tension headache was apparently made. Mr Witt was discharged the same day.
Mr Witt continued to experience distressing symptoms and consulted his general practitioner Dr Evans. That practitioner prescribed Voltaren as a medication. Mr Witt subsequently consulted another general practitioner, Dr Jackson of Brookvale and ultimately was examined by Dr Ibrahim Rabie, otolaryngology specialist, following which an MRI examination of Mr Witt’s skull was arranged. That examination, which was conducted on 17 September 2005, revealed the presence of chronic bilateral subdural haematomas. Mr Witt was immediately admitted to Royal North Shore Hospital where, on 19 September 2005, he underwent surgical treatment involving bilateral burr holes which led to improvement of his symptoms.
Mr Witt experienced a recurrence of symptoms thereafter which required further treatment. He has not, with the exception of a period of three weeks in 2007, returned to gainful employment since he last worked for the respondent.
On 4 February 2008 Mr Witt presented a workers compensation claim to the respondent and its insurer. Liability in respect of that claim was declined by the insurer on behalf of the respondent. Written notice of that decision was given to Mr Witt in correspondence dated 30 July 2009 in accordance with the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act (the 1998 Act). That notice particularised, as a reason for the insurer’s decision, that the injury suffered by Mr Witt was not an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act).
The dispute between the parties concerning Mr Witt’s entitlement to compensation benefits was the subject of an Application to Resolve a Dispute filed with the Commission in August 2010. That application came before Arbitrator Sweeney for arbitration/conciliation on 12 November 2010. The matter proceeded to hearing and the Arbitrator reserved his decision. A Certificate of Determination issued on 8 December 2010 which was accompanied by a Statement of Reasons (Reasons) for the entry of an award for the respondent.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 8 December 2010 records the Arbitrator’s order as follows:
“The Commission determines:
1.Award for the respondent.”
An application seeking leave to appeal against the Arbitrator’s determination was filed with the Commission on 24 December 2010.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to give any, or any proper weight to the evidence of Dr W G D Patrick;
(b) failing to give any, or any proper weight to the evidence of Dr M Evans;
(c) failing to provide sufficient reasons for the evaluation of the evidence of Dr Evans;
(d) rejecting the evidence of Dr Evans in circumstances where that witness had not been cross-examined nor given a fair and reasonable opportunity to reconcile her report with her notes of the consultation, and
(e) failing to exercise appropriate caution when evaluating the evidence being histories as recorded by medical practitioners and hospital staff.
The issues which I have attempted to summarise above have been taken from the written submissions filed in support of this appeal under the heading “grounds of appeal”.
ON THE PAPERS REVIEW
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.”
Having regard to Practice Directions Nos 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.
LEAVE
There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
THE ARBITRAL PROCEEDINGS
The documentary evidence which was before the Commission was noted at [5] of Reasons. Each party was represented by counsel and leave was granted permitting cross-examination of Mr Witt. At the conclusion of Mr Witt’s evidence counsel put submissions. The proceedings were recorded and a transcript has been produced and made available to each party.
Mr Witt’s evidence
Mr Witt’s statements and oral evidence
There are two written statements of Mr Witt in evidence which are dated 5 August 2009 and 12 November 2009. In the first Mr Witt states that “on or around 19 [sic] June 2005 I sustained a significant head injury in the course of my employment with the respondent.” Mr Witt proceeds to describe his work conditions and states that “I was working on a ceiling grid when I wacked my head on a metal T-bar”. He states that immediately after he hit his head he “knew it was quite serious”. He states that he reported the accident “to work and took Panadol for the significant head pain that resulted from the accident”.
Mr Witt states that at the time he arrived at his home on that day his “pain had intensified” and he believes that he “passed out”. He felt “extremely sick” and was unable to eat or drink. The pain worsened and within a day or so he developed pain and stiffness in his neck. The pain was “worsened by light”. The pain did not ease and he attended the emergency department at Wyong Hospital. He was told at the hospital that he was suffering from a tension headache, was given some intravenous medication and discharged.
Mr Witt describes the medical treatment which he received including detail of his treatment by Dr Ray Cook at Royal North Shore Hospital in September 2005 which included drainage through burr holes in his skull. The statement summarises treatment received thereafter and detail is provided in that statement concerning the extent of disability experienced by him.
The statement dated 12 November 2009 includes a correction concerning the date of the alleged head injury. Mr Witt states that the accident “occurred on 20 June 2005” and that he is “100 per cent certain the accident occurred” on that date and not, as previously stated, on 19 June 2005.
The evidence given by Mr Witt at the hearing concerns matters of history. In the course of cross-examination Mr Witt, when asked concerning reporting of the injury on the day of its occurrence, stated “I asked to have permission to be able to go down stairs to get some Panadol and so I would have had to speak to Shaun then to let him know because it was … around quarter to nine in the morning”. Later in his evidence he said “I went up and told them that I hit my head and I wanted to go down and get some Panadol because I had a headache from it”. Mr Witt described how he “left work and got to the F3 Freeway and pulled over because the pain was just too much”. He stated that he had no idea how he got home but that he knew that he had driven to his home. He stated that he pulled over on the freeway “for at least an hour on the side of the road”.
Mr Witt agreed with a proposition that his pain got “even worse” once he arrived at his home and that he collapsed. He stated that he was collapsed for “four days or three”. He stated that he got home on the Monday at “about lunch time”. On the following Thursday he was taken by his former wife to the hospital.
The balance of cross-examination concerned the content of various clinical notes and other records concerning history as recorded concerning the onset of Mr Witt’s symptoms. Particular attention was given in those questions to history as recorded in the hospital notes produced by both Wyong Hospital and Royal North Shore Hospital and the clinical notes produced by Dr Evans’s practice. The detail of this evidence is addressed below.
Dr Patrick
Mr Witt relied upon four reports provided by Dr W G B Patrick, surgeon, dated 15 June 2009, 16 June 2009, 7 August 2009 and 18 June 2010. In the first of those reports Dr Patrick records that Mr Witt received a significant injury in “about mid June 2005” in the course of his work whilst standing upon a ladder he “accidently forcibly whacked his right temple… region on the metal T-bar”. Dr Patrick recorded that Mr Witt did not lose consciousness but was significantly stunned. It is recorded that within an hour of the injury Mr Witt was using Panadol. It is also recorded that Mr Witt drove home to the Central Coast, but needed to pull over to the side of the F3 Freeway to rest. He reached his home and “believes he ‘passed out’”. It is further recorded that Mr Witt vomited and “was apparently not eating or drinking”. Dr Patrick then records:
“By the Sunday (probably 19 June 2005) [Mr Witt] was being troubled by quite severe frontal and occipital headache associated with some photophobia with discomfort and stiffness in the neck with the headache worse in the bright light”.
Dr Patrick summarised in that first report the course of medical investigation and treatment received by Mr Witt. That report records that Mr Witt had a history of various bumps on the head from time to time associated with work and, that in March 2005, Mr Witt may have “hit the front of his head on a tap outside his home”. There were no symptoms following this incident. Dr Patrick noted that he has seen the records of the Wyong Hospital and Royal North Shore Hospital as well as a report from Dr Rabie dated 14 September 2005. An MRI carried out on 17 September 2005 at the direction of Dr Rabie demonstrated bilateral moderate sized extensive chronic subdural haemorrhages.
Dr Patrick, in his first report, expressed the following opinion:
“Mr Gary Witt, on balance of probability, with the history and sequence of events as given, has sustained significant blunt head trauma during the course of his work in about June 2005 when working with QB Interior Linings as a gyprock plasterer as described. It is likely that some subdural bleeding has occurred as a consequence of this injury and he has gone on to develop bilateral subacute subdural haematomas. Significant symptoms have developed, probably by about 19 June 2005 and he was in some distress by 23 June 2005 when he presented at the Emergency Department at Wyong Hospital. He has continued with some ongoing headache and his intracranial collections have not been diagnosed until the cerebral MRI of 17 September 2005.
I do believe that on balance of probability his employment/work has been a substantial contributing factor to this injury and need for the neurosurgical intervention of 19 September 2005 at which time the bilateral subdural collections were drained via bilateral parietal burr holes.
I believe the radiologist’s CT report of 17 September 2005 indicating subacute subdural collections rather than longstanding chronic collections, taken in conjunction with the appearances of the subdural collections at surgery are more in keeping with the incident of injury having occurred in or about June 2005 rather than some months earlier.”
Dr Patrick’s report of 16 June 2009 includes an assessment of whole person impairment resulting from the alleged injury of 14 per cent.
The report of Dr Patrick dated 7 August 2009 addressed the method of assessment conducted by that practitioner. Dr Patrick acknowledged in that report that he had seen the report of Dr Evans dated 13 February 2008 which is referred to below.
The report of Dr Patrick dated 18 June 2010 addressed information conveyed that the alleged injury had occurred on 20 June 2005. Dr Patrick acknowledged that that date was the nominated date of injury in a report prepared by Melissa Grogan, psychologist and it is stated:
“20 June 2005 was a Monday, and it would fit that Gary Witt’s development of ‘quite severe frontal and occipital headache associated with some photophobia with discomfort and stiffness in the neck with the headache worse in the bright light’ (third paragraph, page 2 my report of 15 June 2009) occurred on the Wednesday 22 June 2005 (rather than the preceding Sunday) which was just the day prior to his attendance quite distressed at Wyong Hospital Emergency Department on the Thursday 23 June 2005 where his significant intracranial problem unfortunately was not diagnosed.
I do believe that on balance of probability Mr Gary Witt’s injuries have been sustained as a result of significant blunt head trauma which has occurred on or about 20 June 2005.”
Dr Evans
There is in evidence a short report from Dr A M Evans, general practitioner, dated 13 February 2008. Dr Evans recorded that Mr Witt first attended her surgery on 30 June 2005. Dr Evans noted that Mr Witt:
“stated that he had experienced severe headaches and vomiting nine days previously following a bump on his head at work on 20.6.05. He attended Accident and Emergency at Wyong Hospital and was given I.V. fluids and analgesics. He stated that he still had a headache – now less severe – not present on waking – comes on an hour or so after rising in the morning – and controlled with Panadol”.
Dr Evans proceeded to state:
“It is very likely that the subdural haematomas found in September 2005 were due to the accident in June 2005. Subdural haematomas form slowly and the time frame is consistent with the history”.
Clinical notes
A number of reports prepared by practitioners concerned with treatment and rehabilitation of Mr Witt are in evidence. There are also records of Wyong Hospital, the Royal North Shore Hospital and clinical notes from the Warringah Medical Centre. As these documents are voluminous it is not proposed to attempt a summary, however reference is made to the detail to be found in those reports in the course of discussion which appears below. A number of other documents, including financial records relating to the earnings of Mr Witt, are in evidence. Those documents are not directly relevant to the matters raised on this appeal.
Mr Witt tendered, as part of the Wyong Hospital records, a copy of a workers compensation claim form presented by him to the respondent. That document is dated 4 February 2008 and nominates the date of injury as being 20 June 2005, the time of injury being 9:00 am. The description of injury was “replacing grid ceiling and hit head on ceiling grid while going about normal duties as required”. The injury was said to have been caused to Mr Witt’s “head/brain”. That claim form had been forwarded to the Wyong Hospital by the respondent when production of records was sought.
The respondent’s evidence
Dr Matheson
The respondent tendered the evidence of Dr John Matheson, consultant neurosurgeon, found in his report dated 7 May 2008. Dr Matheson recorded a history that Mr Witt had hit his head on a bar on 20 June 2005 as he was working with gyprock. It is recorded that 15 minutes later Mr Witt’s head was throbbing and that he was unable to complete the day’s work. Mr Witt reported that he collapsed “a bit on the way home but then got home and stayed in home for four days”.
Dr Matheson noted that Mr Witt attended Wyong Hospital four days after the alleged injury. He consulted Dr Margaret Evans two weeks later. It is noted in the report that Mr Witt was trying to work but was “failing”. He passed out at work on 18 July 2005 and he was put off work at that stage. Mr Witt’s consultation with a number of other practitioners is noted including consultation with Dr Rabie who arranged an MRI scan which “produced the diagnosis which was chronic bilateral subdural haematomas”. Surgical treatment at Royal North Shore Hospital in September 2005 is also recorded.
Dr Matheson expressed the opinion that Mr Witt’s presentation “has been fairly typical of a chronic subdural haematoma”. Dr Matheson notes that such condition is traumatic in origin and that, given the history, the assumption would have to be made that it was “work induced”. Dr Matheson proceeded to address a number of questions raised by the insurer concerning the nature of the condition and its consequences.
Dr Evans
The clinical records relating to treatment of Mr Witt by Dr Margaret Evans are in evidence. Those notes confirm that Mr Witt first consulted Dr Evans on 30 June 2005. I note in passing that this does not appear to correspond with suggestions in the evidence and submissions that Mr Witt had been a patient much earlier. The records, which appear to be computer generated, are headed “Complete Record”. The past medical history which appears on the first page of those notes records “30/06/2005 muscle spasm left trapezius”. It is also recorded that in 2005 such history related to “organic brain damage” and “bilateral subdural haematomas”. The entry for the first consultation appears as follows:
“Thursday June 30 2005 08:20:28
Dr Margaret Evans
Severe headache and vomiting 9 days ago. Attended A and E. Given I V fluids and analgesics. No energy. Still has headache – but less severe – not present on waking – comes on after an hour or so – controlled with Panadol.
Examination:
130/80 Tender left trapezius muscle. Tight.
For physio and Voltaren
Cert. 29.6.05-1.7.05
Reason for visit:
muscle spasm left trapezius
Actions:
Medication/Product Added: VOLTAREN 50 EC TABLET 50mg 1 TABLET b.d.p.c.”The clinical notes of Dr Evans’s practice record three attendances by Mr Witt in late 2005 which post date his treatment at the Royal North Shore Hospital. He was attended on those occasions by practitioners other than Dr Evans. The history of subdural haemorrhage is noted. No history of work injury appears. There is no further consultation recorded until 17 November 2007 at which time Mr Witt consulted Dr Evans. On that occasion it is noted that Mr Witt “wants referral to Commonwealth Rehab Services. Has not seen psychologist in past two years since accident”. The notes do not include any description of the accident as recorded.
Dr Evans’s notes record the next consultation as having occurred on 22 January 2008 which related to an assessment for the Commonwealth Rehabilitation Service. The copy of the notes in evidence thereafter is blank over a distance of approximately 8 cms until an entry at the foot of that page, being page three of 10 in evidence, where there is an entry for 13 February 2008. There it is noted that an initial rehabilitation plan had been completed by Hunter Health Service, as was a letter from Firths Lawyers “requesting a short report stating that on balance of probabilities the brain haemorrhage was caused by a work accident in June 2005”.
Hospital records
The respondent tendered copies of medical records produced by both Wyong Hospital and Royal North Shore Hospital, the latter documents being copies of those documents tendered in Mr Witt’s case. Detail of these records was summarised by the Arbitrator between [26] and [30] of Reasons and is addressed below. A number of other reports from practitioners are in evidence which, where relevant, are referred to below.
Ms Bisset
The respondent tendered a number of written statements made by its employees. Included is a statement from Ms Melanie Bisset, Administration Manager. Ms Bisset states that Mr Witt was employed as a tradesman on 9 June 2005. That statement includes a description of Mr Witt’s terms of employment and details of company policy requiring any employee, who is unable to work by reason of illness, to report such a matter to the site supervisor. A number of time sheets were attached to that statement which included notation of Mr Witt’s absence on particular days by reason of sickness. Ms Bisset states that there is no record of work injury being reported during the period of his employment. The first notice received by the respondent concerning the alleged injury to Mr Witt occurred during a telephone call from Mr Witt to Mr Paul Marsh.
Mr Marsh
A statement by Mr Paul Marsh dated 18 March 2008 is in evidence. Mr Marsh is a director and the major shareholder of the respondent. Mr Marsh states that he received a telephone call from Mr Witt during the Christmas New Year break of 2007-2008 whilst he was on leave. Mr Witt enquired as to the identity of the company’s workers compensation insurer. When asked as to why he needed that information, Mr Witt is said to have stated “I need to talk to them re a claim”. Mr Marsh enquired as to what sort of claim, to which Mr Witt replied “head injury”. Mr Marsh invited Mr Witt to send “something in writing” to which Mr Witt is said to have replied “my solicitors will be in contact”. Mr Marsh states that he has no knowledge of the occurrence of any incident or accident involving Mr Witt during his employment. Mr Marsh was aware, having being informed by others, that Mr Witt “had left due to ill health”.
Mr S Bisset
A statement by Mr Shaun Bisset dated 29 April 2008 is in evidence. Mr Bisset was the onsite foreman at the premises where Mr Witt was engaged. Mr Bisset described the nature of the project and the duties of Mr Witt. He described the ceiling grid at the site as being “thin, light weight, powder coated metal, which is held to the joists by metal hooks.” It is stated that Mr Witt complained about headaches whilst at work. Mr Bisset had on one occasion found Mr Witt asleep under a table in the office area. Following discussion Mr Bisset instructed Mr Witt to pack up and go home. Mr Bisset recalls Mr Witt “phoning in sick” but does not recall how many such calls were made. Mr Bisset was the first aid officer on site. It is stated that Mr Bisset is not aware of Mr Witt “having a work place injury whilst with us”. No other employee had informed Mr Bisset that Mr Witt had had an injury and there is no record of such an injury.
Mr Tutaki
A statement made by Mr Vantonian Tutaki dated 18 March 2008 is in evidence. Mr Tutaki stated that he was Site Supervisor employed by the respondent at the work site where Mr Witt was employed during 2005. Mr Tutaki stated that on one occasion he saw Mr Witt on the floor, under a table. He appeared to be resting and appeared to be in a state of discomfort. Mr Tutaki enquired as to why Mr Witt was lying on the floor to which he replied “I have got a headache, and I don’t feel well”. Mr Tutaki told him to remain where he was. Mr Tutaki mentioned the matter to “Shaun” who stated that Mr Witt was “taking it easy and lying under the bench”. Mr Tutaki returned to his work and stated that Mr Witt went home “a couple of hours later”. In response to a question put during the interview conducted for the purpose of producing the statement, Mr Tutaki stated that he was not aware of Mr Witt being at work after this incident and that he thought that Mr Witt “left after this”.
Mr J Bisset
A statement by Mr Justin Bisset dated 18 March 2008 is in evidence. Mr Bisset is a director of the respondent company and in 2005 was the Site Manager where Mr Witt was employed. Mr Bisset stated that Mr Witt, after being with the company for some time, took sick days off work. Mr Witt did not contact the company about being off work and Mr Bisset tried to contact him. He left a message on his telephone which was replied to by Mr Witt’s wife. Mr Bisset was informed that Mr Witt was “sick with some virus”. He was also informed that Mr Witt had bad headaches, was feeling sick and had been to hospital. Mr Bisset recalls that Mr Witt was absent for about a week. Upon his return Mr Witt did not complete full days. Mr Bisset was informed that Mr Witt was falling asleep during breaks and was having difficulty getting back to work. He was also informed that Mr Witt was suffering from headaches. After about two weeks, having regard to the nature of the job, Mr Bisset states “We had to let Gary go”. That was the last that Mr Bisset heard of Mr Witt until the claim alleging workplace injury was made.
A number of documents relating to Mr Witt’s employment, in particular timesheets, were attached to the statement made by Ms Melanie Bisset. Also attached to that statement were copies of two emails received by the respondent from Mr Witt during the currency of his employment concerning his hours of work. The detail of these documents is addressed in the course of discussion below.
Mr Witt’s submissions
Counsel made reference to the evidence of Dr Patrick and Dr Matheson who, it was put, were in agreement that the most likely cause of the bilateral haematomas was “a bump on the head”. It was argued that the evidence of Dr Patrick supports a conclusion that the findings demonstrated on the MRI and as revealed in the course of surgery were “consistent with an injury three months previously”. Counsel drew attention to an entry in the records of the Royal North Shore Hospital made on the admission date, being 17 September 2005, which records “this plasterer has a head injury in June 2005”. Reference was also made by counsel to the notation found in the hospital notes concerning head injury caused by striking a tap outside Mr Witt’s home. It was argued that those incidents may be treated as two separate and distinct events. Emphasis was placed by counsel upon the evidence of Mr Witt concerning the occurrence of a “clear hit on the head, a need to go out and buy some Panadol”. One needs to examine, it was submitted, the “natural history”. Mr Witt “lasts another hour and a half … at work and [it is known] that he worked only four hours on that day”. He travelled home encountering difficulties, suffered vomiting and nausea, he had little recall of events for “days”. He was treated with analgesia by his wife until he attended Wyong Hospital. The hospital’s diagnosis of “tension headache” was clearly wrong. Mr Witt soldiered on, driving to work from the Central Coast to the city on each occasion. It was not until conduct of the MRI in September that the true diagnosis became apparent. It was put that Mr Witt had no experience of medical matters and that the injury, being a bump to the head, was not a dramatic injury. Such bump is accepted by Dr Matheson as being sufficient to cause the bilateral haematomas.
The respondent’s submissions
The one argument advanced on behalf of the respondent was that Mr Witt had failed to discharge the onus upon him to prove the occurrence of injury as alleged. Counsel acknowledged that there were two entries to be found in the hospital notes that may be taken to be consistent with his allegation of injury. However it was put that the various histories as recorded in the various hospital and medical records demonstrate a “discrepancy”. It was argued that the injury, as described, was “dramatic” and was a “severe, disabling head injury”. Counsel acknowledged in argument that hospital notes are “hopeless quite often”. However, it was emphasised that nowhere was there any mention of an injury at work and counsel noted that there had been “specific interrogation” that had elicited other detail including neck stiffness, financial stress and work stress.
The thrust of counsel’s argument was that the evidence of Mr Witt was unreliable concerning the occurrence of injury and that, taking the evidence as a whole, his version of events is not corroborated by the contemporaneous notes concerning history of the onset of his illness. Counsel had handed to the Arbitrator a written summary of the various notations found in the documentary evidence concerning history which was to be utilised as an aide- memoire. Particular emphasis was placed upon the notes compiled by Dr Tay who, it was put, appeared to carefully question Mr Witt concerning history, and that the only trauma noted was that he had hit his head on a tap outside his home in March 2005.
SUBMISSIONS, DISCUSSION AND FINDINGS
The relief sought by Mr Witt on this appeal is that the Arbitrator’s finding with respect to the disputed injury be “set aside” and that it be substituted with a finding, upon review, that injury as alleged in the course of his employment had been received. Mr Witt also seeks that the matter be “remitted for determination of quantum issues”. It is made clear in submissions that the findings challenged on this appeal are to be found as expressed by the Arbitrator in the course of his Reasons at [62] and [63] where it was stated:
“Weighing up the matters that I have canvassed above I have reached the conclusion that that [sic] the applicant’s evidence as to the occurrence of the pleaded injury is unreliable. The applicant has given evidence of a whack on his head which caused him almost immediate severe headaches. He was required to leave work and go home. He does not remember his journey home, and on reaching his home lost consciousness and was confined to bed for four days until he was taken to Wyong Hospital. His evidence must be considered in the context of the absence of any reference to a work injury in the contemporaneous notes or reports of two general practitioners, a specialist and two hospitals. It is inconsistent with the evidence of Shaun Bisset and other evidence adduced by the respondent. While each of the inconsistencies set out above may be explained by faulty note taking or the applicant’s state of mind, they combine to undermine the applicant’s evidence. Although the reports of Dr Patrick support the occurrence of an injury in June 2005 his opinion is to a large extent founded on the history provided to him by the applicant.
As I cannot accept the applicant’s evidence, and as there is no other lay evidence to corroborate his evidence of injury, I am unable to find that the applicant suffered the injury alleged in the Application. In view of this finding it is unnecessary to deal with the issue of incapacity. Accordingly I make an award for the respondent.”
Ground one
The first ground of appeal raised by Mr Witt is the suggestion of error on the part of the Arbitrator in failing to give any or any proper weight to the evidence of Dr Patrick. The Arbitrator summarised the evidence of Dr Patrick between [49] and [51] of Reasons. It was noted at [49] that the evidence of Dr Patrick did “offer considerable support for the proposition that the applicant suffered injury in June 2005”. The reasons for that observation are then stated. The Arbitrator correctly observed that the opinion of Dr Patrick does not “prove that the applicant suffered an injury” on or about 20 June 2005. Following a thorough and detailed summary of the evidence the Arbitrator concluded, as noted above, that Mr Witt had failed to prove the occurrence of injury as alleged. The Arbitrator’s analysis of Dr Patrick’s evidence revealed the need for that practitioner to review his opinion concerning the relevant chronology. As the Arbitrator has highlighted at [51] of Reasons, Dr Patrick “initially assumed an injury in the week before 20 June 2005 which, consistently with the record of the Wyong Hospital of 23 June 2005, commenced to cause symptoms by Sunday 19 June 2005.” As noted by the Arbitrator at [62] of Reasons, Dr Patrick’s opinion is to a large extent founded on the history provided to him by Mr Witt. The question as to whether the Arbitrator was correct in his evaluation of the weight of the evidence of Dr Patrick turns on the fundamental question as to the correctness of his conclusion that Mr Witt had failed to prove the occurrence of the disputed injury. It is therefore proposed to a consider those other arguments raised in submissions before dealing with the question concerning the evaluation of Dr Patrick’s evidence.
Ground two
The second ground of appeal complains of error on the part of the Arbitrator in failing to give any or any proper weight to the evidence of Dr Evans. I note in passing that there can be no doubt that reference to the evidence of Dr Evans in the course of the Arbitrator’s Reasons was the subject of a slip when the title “Dr Baker” was used. Nothing turns on this mis-description.
The Arbitrator dealt with the evidence of Dr Evans at [52] of Reasons where it was stated:
“Evidence which supports the applicant’s claim is also contained in a short report of Dr Baker [sic, Evans] of 13 February 2008 where the doctor records a history that the applicant attended her surgery at Gorokan on the 30 June and stated that he had experienced severe headaches and vomiting nine days previously following a bump on his head at work on 20 June 2005. The doctor expressed the opinion that it was very likely that the subdural hematomas found in September 2005 were due to the accident in June 2005. She opined that subdural hematomas form slowly and the time frame was consistent with the history. The impediment to an unreserved acceptance of the doctors opinion is that her notes of the applicant’s attendance on 30 June 2005 contains no reference whatsoever to any work injury on the 20 June, or at any other time. Her notes make no reference to a work injury until 13 February 2008, after she received a letter from the applicant’s solicitor requesting a report in respect of an injury at work. While I would be reluctant to discard the evidence as to history of a doctor who was not cross-examined it is difficult to reconcile the doctor’s short medical report with her notes of the consultation. Obviously doctors do not include all that they were told by a patient in their clinical notes, but the absence of such a vital element of the history from the note [sic, of] 30 June 2005 is inconsistent with the applicant’s evidence and the occurrence of the injury alleged in the Application. The applicant carries the burden of proving his case and it was open to him to lead evidence that explained the discrepancy between the note and the report.”
It has been correctly noted by the Arbitrator that the notes of Dr Evans concerning Mr Witt’s attendance on 30 June 2005 have no reference whatsoever to any work injury occurring on 20 June or at any other time. I have summarised the contents of those records produced by Dr Evans between [36] and [38] above. The Arbitrator correctly notes at [52] of Reasons that there is no reference to work injury until 13 February 2008. I have earlier noted the somewhat curious appearance of the documents produced by Dr Evan’s practice. The four page copy of the “complete record” is, as earlier observed, computer generated and is a continuous printed record. Notwithstanding the format of those pages there is a substantial blank, earlier noted, following the entry dated 22 January 2008. It is immediately following that physical gap in the record that a consultation on 13 February 2008 and mention of a solicitor’s correspondence making reference to work accident in June 2005 appears. The appearance of the document may suggest some irregularity. However this matter has not been addressed by either party, and in those circumstances I draw no inference from the physical appearance of the documents and have had no regard to that matter when considering the question concerning the correctness of the Arbitrator’s evaluation of Dr Evan’s evidence.
Mr Witt, in the course of his evidence before the Arbitrator, asserted that he had told Dr Evans “about the injury” (at T8). He stated in evidence that he didn’t know “exactly what I told her then” Mr Witt stated that it was over five years ago and that he had trouble with his memory. He later stated (at T9) that “Dr Evans was informed at a later stage about my injury if I didn’t tell her then.” Counsel requested that Mr Witt repeat his response at which point Mr Witt stated “Dr Evans was aware of my injury because she helped me get through the Centrelink stuff and everything when I first started trying to get help for myself.” It was agreed by Mr Witt that those matters occurred in “about 2008”.
I consider that the Arbitrator has adopted a cautious approach to the evaluation of Dr Evans’s evidence and I note that he has acknowledged that Dr Evans was not cross-examined. There is, as found by the Arbitrator, an inconsistency between the applicant’s evidence and the history recorded by Dr Evans on 30 June 2005. In such circumstances Mr Witt carried the burden of proof and may have taken steps to adduce evidence explaining the apparent inconsistency. Mr Witt has not produced such evidence, and the inconsistency stands. It is plain that the Arbitrator has declined to accept Dr Evans’s evidence as contained in the report dated 13 February 2008 given the existence of the inconsistency as to history. Such an approach to the assessment of Dr Evan’s evidence was appropriate in my view, and the argument advanced by Mr Witt concerning the Arbitrator’s evaluation of that evidence cannot be accepted.
Ground three
The third ground relied upon by Mr Witt suggests error by reason of failure to provide sufficient reasons “as to why Dr Baker [sic, Evans] would deliberately provide a history in a report that was incorrect”. The manner in which this “ground” has been formulated presents a number of difficulties. The first matter of difficulty concerns the suggestion that the Arbitrator has drawn an inference that Dr Evans had “deliberately provided a history” that was incorrect. That is not the conclusion reached by the Arbitrator. The task before the Arbitrator was to evaluate the evidence of Dr Evans. It is clear from the reasons plainly stated that the Arbitrator was unable to place any weight upon the evidence found in the report of 13 February 2008 given the difficulty of reconciling the contents of that report with the notes concerning the relevant consultation. Another difficulty is that the argument appears to disregard the true nature of the task confronting the Arbitrator and dealt with by him in the course of his reasons generally. That task was to determine the fundamental question as to whether Mr Witt had discharged the onus upon him of proving the occurrence of the injury as alleged.
The Arbitrator’s careful analysis of the evidence of Dr Evans led him to the conclusion that the evidence of that witness concerning causation needed to be evaluated in light of the fact that there was no reference to a work injury until 13 February 2008 following receipt of correspondence from Mr Witt’s solicitor. The clinical notes demonstrated an absence of complaint contemporaneous with the occurrence of injury. That absence was a matter properly to be taken into account in relation to the assessment of the weight to be given to Dr Evans’s evidence, and represented but one aspect of the evidence relevant to the fundamental issue concerning proof of the occurrence of the work injury. With respect to that latter issue, the Arbitrator’s conclusion was that “the contemporaneous records, taken as a whole, offer little in the way of corroboration of [Mr Witt’s] allegations that he suffered an injury at work on 20 June 2005” (at [53] of Reasons). The evidence to which the Arbitrator was there referring includes, significantly, the evidence of Dr Evans including the content of her clinical notes. I conclude that the reasons as stated by the Arbitrator for his evaluation of the evidence of Dr Evans meets those standards relevant to the obligations upon a finder of fact to reveal the reasoning process which led to the conclusion. As was stated by Meagher JA in Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443 “reasons need not be lengthy or elaborate” but “relate to the functions to be served by the giving of reasons”.
Ground four
The fourth “ground” relied upon by Mr Witt suggests error of the Arbitrator in “discarding the evidence as to history of Dr Baker [sic, Evans], given that Dr Baker [sic, Evans] was never sought to be cross-examined by the respondent, nor given a fair and reasonable opportunity to reconcile her report with her notes of the consultation.” It is implicit, given the manner in which this ground has been formulated, that there was a need to “reconcile” Dr Evans’s contemporaneous note with the matters recorded in her report prepared almost three years following the alleged injury. Dr Evans’s notes had been attached to the respondent’s Reply filed with the Commission on 7 September 2010. It was clear that reliance was placed upon that evidentiary material, in part, to challenge the allegation as to injury and, in part, as a basis to raise questions as to the weight to be ascribed to the evidence of Dr Evans as found in her report. At the hearing, the respondent cross-examined Mr Witt concerning that which he reported to Dr Evans on the relevant date and, as earlier noted, it was Mr Witt’s assertion that he had informed Dr Evans of the work injury. It must be noted that the Arbitrator had observed that Dr Evans had not been cross-examined when expressing his cautious evaluation of her evidence before concluding that it may be discarded. That there had been no cross-examination of Dr Evans is, in my view, no ground for complaint. Mr Witt was aware of the issues in dispute and the evidence that was likely to be adduced at the hearing. In those circumstances he had ample opportunity to supplement the evidence with a view to explaining any suggested inconsistencies. In the present circumstances, there was no obligation upon the respondent to test Dr Evans concerning the state of her records to found a challenge concerning the weight of her evidence contained in the documents and the report. Relevant considerations arose in the matter of Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 where it was stated by Kirby J (at 590):
“I am inclined to agree with Burke CCJ that the practical rule of fairness enshrined in the Browne v Dunn principle required that the suggested contradictions in the worker’s history should have been put to the worker before they were used as a basis not of challenging the opinions resting on them but of challenging the truth of the worker’s evidence. No such challenge was put to the worker by counsel for the employer in his economical cross-examination. If the commissioner himself intended to rely upon the evidence in the way he did, procedural fairness required that he should have drawn the suggested inconsistencies which were troubling him to the notice of the worker or of counsel. Then the worker would have the opportunity of explaining the suggested inconsistencies. Her counsel would have had the chance of calling oral evidence from her medical advisers to supplement the written opinions which they had provided. In the course adopted by the commissioner there was a real risk of injustice to the worker. Burke CCJ recognised that risk and his review dealt with it.”
Mr Witt had been cross-examined concerning the documents. He had an opportunity to call evidence to explain the inconsistency in Dr Evans notes which was, ultimately, relied upon to challenge both that doctor’s evidence and the evidence of Mr Witt himself. That opportunity has not been taken and, in my view, there can be no grounds for complaint that the respondent had not tested the evidence of Dr Evans by requiring her attendance for cross-examination. This ground should, in my view, be rejected.
Ground five
The fifth ground of appeal suggests error on the part of the Arbitrator in failing to exercise caution, as required by law, when assessing the evidence found in the written records of medical practitioners and hospitals which were before the Commission. As noted in submissions the Arbitrator acknowledged the requirement to treat such evidence with caution and cited the decisions of the Court of Appeal in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and Fitzgibbon v The Waterways Authority [2003] NSWCA 294 in which the need for such cautious approach is expounded.
The Arbitrator considered the contemporaneous records between [53] and [55] of Reasons. It is clear that the Arbitrator has taken into account not only a need for caution in evaluating such evidence but also the arguments advanced by counsel on behalf of Mr Witt concerning the possibility that such notes “may reflect the indifferent note taking of the author of the notes”. The Arbitrator’s reasoning is made clear where he demonstrates examples of possible unreliability of such records and, by contrast, notations that seemed “comparatively comprehensive”. The matter of significance noted by the Arbitrator was that there was a common feature found in the contemporaneous notes being that they contain “no reference to an injury at work”. It is acknowledged that there were references to a head injury on at least two occasions in the notes compiled at the Royal North Shore Hospital and the Arbitrator deals with that matter and submissions at [55].
The Arbitrator had earlier in his reasons summarised the relevant entries with precision and I have reached the view that his approach to that evidence demonstrates a proper and balanced evaluation concerning the degree of reliance that may be placed upon such material. That evidence was considered with other evidence relevant to the question as to proof of the injury as alleged, including the lay evidence adduced by the respondent. Particular reference was made to the evidence of Mr Shaun Bisset and he concluded, properly in my view, that Mr Bisset’s evidence and Mr Witt’s evidence concerning “the critical issue of the reporting of the incident is extremely difficult to reconcile”.
It is clear, in my opinion, that the Arbitrator has not only adopted a cautious approach to the contemporaneous medical notes but has taken that evidence into account together with the totality of the evidence in reaching his conclusion. The Arbitrator’s approach to the evaluation of the evidence as a whole may be described as temperate. He considered it inappropriate to form any view of Mr Witt’s credit on the basis of his demeanour given the brevity of his evidence (at [19] of Reasons); no adverse inference concerning Mr Witt’s failure to call his former wife was drawn (at [58] of Reasons); the weight of the respondent’s evidence concerning injury report procedures was appropriately discounted as noted at [56] of Reasons, and he has taken into account objective facts and circumstances revealed in the evidence when reaching his conclusion that the evidence of Mr Witt concerning the occurrence of injury was unreliable. The Arbitrator’s conclusion that he could not accept Mr Witt’s evidence (at [63] of Reasons) and his conclusion that there was no other lay evidence to corroborate his evidence of injury were conclusions open to him on the evidence, were reached after a proper evaluation of that material and are conclusions with which I respectfully agree. Mr Witt’s argument raised under this ground must be rejected.
It may be seen that, for the reasons which I have attempted to summarise above, I conclude that the Arbitrator was correct when he determined that Mr Witt had failed to prove the occurrence of injury as alleged. It follows that Mr Witt’s arguments noted at [50] above, concerning the Arbitrator’s approach to Dr Patrick’s evidence must be rejected. In the circumstances the appeal must fail. In reaching that conclusion I have taken into account the supplementary submissions which were forwarded to the Registry on 8 February 2011 by Mr Witt’s solicitors. When considering the matters raised therein I have given particular attention to that evidence concerning Mr Witt’s conduct immediately following the alleged date of injury and soon thereafter. That material includes the two email communications forwarded to Justin Bisset, the first dated 30 June 2005 signed by Mr Witt and the second dated 21 July 2005 signed by Mr Witt’s former wife. The first of those emails details Mr Witt’s hours of work between 16 June 2005 and 29 June 2005 and includes a notation of four hours work having been performed on 20 June 2005, the date of the alleged injury. Those details had been forwarded following a telephone conversation between Mr Bisset and Mr Witt. The message includes an apology from Mr Witt for “the inconvenience I have caused”. I infer that that apology relates to his absence from work. There is no suggestion in that correspondence that the absences noted in the summary of work hours was in any way related to an alleged work injury. Whilst I acknowledge that Mr Witt was not directly questioned concerning that communication, there was no objection taken to the tender of the document and it is evidence that must be taken into account together with the totality of the evidence when the question of Mr Witt’s reliability as a witness is addressed. Similar observations may be made concerning the email dated 21 July 2005 which also included detail of hours worked. As noted by Mrs Witt, her husband on that day was “not on site”. There is no suggestion made that his absence was in any way related to the consequences of a work injury.
Mr Witt has failed to establish error on the part of the Arbitrator and the appeal should be dismissed.
DECISION
The order of the Arbitrator recorded in the Certificate of Determination dated 8 December 2010 is confirmed.
COSTS
No order as to costs of the appeal.
Kevin O'Grady
Deputy President
30 March 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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