WorkControl Pty Ltd v Rae
[2020] NSWWCCPD 31
•25 May 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | WorkControl Pty Ltd v Rae [2020] NSWWCCPD 31 |
| APPELLANT: | WorkControl Pty Ltd |
| RESPONDENT: | Daniel Paul Rae |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-4406/19 |
| ARBITRATOR: | Mr R Perrignon |
| DATE OF ARBITRATOR’S DECISION: | 18 October 2019 |
| DATE OF APPEAL DECISION: | 25 May 2020 |
| SUBJECT MATTER OF DECISION: | Section 4(a) of the Workers Compensation Act 1987 – injury, causation; whether error on the part of the Arbitrator – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr A Parker, counsel | |
| Hall and Willcox | |
| Respondent: | |
| Mr S Hickey, counsel | |
| Taylor and Scott Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 18 October 2019 is confirmed. 2. The matter is remitted to the Arbitrator for determination of the remaining issues and for the correction of the obvious omission from the Certificate of Determination of the finding that the respondent suffered injury pursuant to s 4 of the 1987 Act. |
INTRODUCTION AND BACKGROUND
In these proceedings, Mr Daniel Paul Rae (the respondent) alleged that he suffered injury in the form of a fracture to the T11 vertebral body of his thoracic spine as a result of a hypoglycaemic event in the course of his employment on 26 November 2016. The respondent suffered from Type 1 diabetes.
The injury was pleaded as either a frank injury pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) or an aggravation of a disease of gradual process pursuant to s 4(b)(ii) of the 1987 Act. It was said to have occurred in circumstances where the respondent had performed heavy labouring work for WorkControl Pty Ltd (the appellant) on 26 November 2016, after which he suffered a diabetic seizure while sitting in the stationary work vehicle. The respondent was removed from the vehicle and placed in the shade by another worker. When the respondent regained consciousness, he was aware of significant pain in his lower thoracic spine.
The respondent was taken to Lithgow District Hospital by ambulance where he underwent x‑rays and a CT scan of his thoracic spine, which disclosed a T11 vertebral fracture of the thoracic spine.
The respondent had previously suffered a hypoglycaemic event at home on 22 October 2016, which resulted in a fall. Following that event, the respondent underwent a CT scan of his thoracic spine which showed fractures of the T4, T5 and T6 vertebrae.
The respondent claimed weekly payments of compensation from 27 November 2016 to date and continuing, treatment expenses pursuant to s 60 of the 1987 Act and a lump sum pursuant to s 66 of the 1987 Act in respect of 17% whole person impairment as a consequence of the event on 26 November 2016.
The appellant declined the claim, disputing that:
(a) the respondent sustained an injury within the meaning of s 4 of the 1987 Act;
(b) the respondent’s employment was a substantial contributing factor to the injury, or, if the injury was an aggravation of a disease, the respondent’s employment was the main contributing factor to the injury, and
(c) any incapacity, treatment received or whole person impairment resulted from a work related injury.
The matter proceeded to arbitration. The Arbitrator delivered oral reasons for his decision on 11 October 2019 and issued a Certificate of Determination on 18 October 2019.
The Certificate of Determination dated 18 October 2019 records:
“The determination and orders of the Commission are as follows:
1. Finding that the worker’s employment was a substantial contributing factor to the fracture of the 11th vertebral body of his thoracic spine on 26 November 2016.
2. Pursuant to section 60, the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 26 November 2016.
3. The matter is remitted to the Registrar for referral to an approved medical specialist to assess whole person impairment (thoracic spine) as a result of injury on 26 November 2016.
4. The Registrar is requested to furnish the following documents to the approved medical specialist:
a.Application to Resolve a Dispute.
b.Reply.
c.Amended Application to Resolve a Dispute.
5. The claim for weekly compensation is reserved for further determination.”
The appellant appeals the decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties indicate that it is appropriate to determine the matter on the basis of the written submissions and an oral hearing is not required.
I have had 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 the documents and the written submissions. I am therefore 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
There is no application to adduce fresh or additional evidence on the appeal pursuant to s 352(6) of the 1998 Act.
There is no appeal from a decision of an arbitrator in respect of an interlocutory decision without the leave of the Commission.[1] Although the respondent’s entitlements pursuant to weekly payments and a lump sum pursuant to s 66 of the 1987 Act have yet to be finalised, the decision of the Arbitrator is final and binding in respect of the issues raised by the appellant. Therefore, the decision is not interlocutory and leave of the Commission to appeal is not required.[2]
[1] Section 352(3A) of the 1998 Act.
[2] Maricic v Medina Serviced Apartments Pty Ltd [2007] NSWWCCPD 196.
LEGISLATION
“Injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act relevantly provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
…”
THE EVIDENCE
The lay evidence
The respondent
The respondent provided a statement dated 21 August 2019.[3] He advised that he was employed by the appellant as a traffic controller, but also performed labouring type work in that employment.
[3] Application to Resolve a Dispute (ARD), pp 1–5.
The respondent gave a brief history of the onset of his diabetes and his treatment regime to address that condition. He described the incident on 22 October 2016, in which he suffered a seizure. He said he was taken to Lithgow District Hospital, where he was treated and was advised that the seizure occurred because his insulin intake was too high. His insulin dose was accordingly modified. He underwent a CT scan on 24 October 2016.
The respondent advised that he was away from work and then returned to suitable light work until 9 November 2016. He described the work he was performing for ten to twelve hours per day following his return to work from 9 November 2016. He advised he was not suffering from back pain when he returned to work.
The respondent said that on 26 November 2016, he had an insulin injection at about 6 am and commenced work at 6.30 am. He said he had his usual breakfast of an iced coffee and a breakfast bar. He advised that he set up the traffic control measures and was then asked to do labouring work, which included filling holes and trenches with topsoil, raking and shovelling the soil, filling the work truck with soil and then emptying the truck manually with shovels.
The respondent reported that they were busy that day, and he could not recall when it was that he stopped to quickly eat his lunch. He said he ate half of a sandwich and a Milo bar, after which he had his insulin injection. He had eaten the first half of the sandwich earlier with a packet of chips and a muesli bar.
The respondent stated that at about 1 pm, he and another labourer by the name of Josh Lewis were driving in the truck to pick up more soil when he began to feel unwell. He realised his blood sugar level was too low and asked Mr Lewis to stop at the Lolly Bug shop at Little Hartley so that he could quickly have some sugar. He said he gave Mr Lewis $50 to buy him some “slushies,” which contain a lot of sugar.
The respondent said that while Mr Lewis was in the shop, his eyes went blurry and he fell unconscious. When he regained consciousness, he was lying on the side of the road away from the truck. He said he was surrounded by people and was in intense pain and unable to walk. He was given lemonade and taken to Lithgow District Hospital by ambulance. The respondent underwent tests, which he said showed he was hypoglycaemic, and his blood sugar level was too low. He said he underwent an x-ray and a CT scan which disclosed a fracture of the T11 vertebral body. The respondent reported that he was transferred to Nepean Hospital, where he was given a lot of pain medication which affected his memory of events.
The respondent referred to a WorkCover certificate of capacity dated 29 November 2016 issued by Dr J Tay, Medical Officer at Nepean Hospital, in which it was recorded that he had fallen after he had administered insulin on an empty stomach. The respondent strongly disputed that history. The respondent explained that he was very groggy when he was given the certificate because of the pain medication he was on and did not read the certificate.
The respondent reported that he only ever suffered two seizures and those were on 22 October 2016 and 26 November 2016. The respondent advised that Dr Shawki, his general practitioner, had informed him that heavy physical work of the type he was performing at work on 26 November 2016 uses more glucose. The respondent provided details of his ongoing pain, his incapacity for work and the treatment he continued to receive.
Ms Tracie Chapman
Ms Chapman, the respondent’s partner, provided a statement dated 9 November 2017.[4]
[4] ARD, pp 6–7.
Ms Chapman stated that on 26 November 2016, she packed the respondent’s lunch for him to take to work, as she did every day. She said that she packed a sandwich, a few snack or muesli bars and a few small chocolates in case the respondent’s blood sugar level was low.
Ms Chapman advised that later in the day on 26 November 2016, she received a call from her brother, who informed her that he had been told that the respondent had suffered a seizure. She said she telephoned the respondent, but Mr Lewis answered the call. Mr Lewis confirmed that the respondent had suffered a seizure.
Ms Chapman said that she rang the respondent again about twenty minutes later and was able to speak with the ambulance officer. She stated that she advised the ambulance officer that the respondent had suffered an earlier diabetic seizure a month before, in which the respondent injured his T4 to T6 vertebrae.
Ms Chapman advised that she contacted SIRA (the State Insurance Regulatory Authority) about making a workers compensation claim and the following day spoke with the respondent’s manager, Mr Ben Gunn. Mr Gunn advised her that he had seen a safety report about the incident and that the respondent was pulled out of the truck, did not have a fall and had not fallen out of the vehicle.
Mr Joshua Lewis
Mr Lewis completed a witness statement dated 26 November 2016 for the head contractor of the worksite where the respondent worked that morning.[5]
[5] ARD, pp 8–10.
Mr Lewis confirmed that on the day of the incident, he and the respondent were travelling in the work vehicle when the respondent informed him that he needed something to eat and asked him to stop at the lolly shop. Mr Lewis was aware that the respondent was diabetic and observed that the respondent looked unwell. Mr Lewis said that he bought the respondent a chocolate and soft drink with $50 that the respondent had given him and ran back to the truck.
Mr Lewis stated that he saw that the respondent was in the passenger seat of the truck, wearing his seat belt and was suffering a seizure. Mr Lewis noticed that the respondent was tense and non-responsive. Mr Lewis said he tried to give the respondent some soft drink and asked a bystander to call triple zero. Mr Lewis stated that he made the decision to remove the respondent from the truck and place him on the ground in the recovery position.
Mr Lewis said that the respondent started to respond and was in pain. Mr Lewis confirmed that the respondent was taken by ambulance to hospital.
The relevant medical evidence recorded by the treatment providers
The NSW Ambulance medical record
The Ambulance Officers attending the respondent at the scene of the seizure recorded the following details:
“Past History
Pre-Exist Diabetes Type 2 insulin requiring; Back Problems; Back Pain occurrence 3 Week/s ago
Meds Insulin, neutral
Allergies Codeine/ Opiates Reaction rash
Case History
Case Nature medical - general
Case Description OA 34YO MALE WITH WORK COLLEAGUES WHO STATE PT HAD A SEIZURE AND IS KNOWN DIABETIC. PEOPLE ON SCENE STATE THEY GAVE HIM LEMONADE BUT SINCE GETTING HIM UP POST SEIZURE HE COMPLAINED OR BACK PAIN. PT #THORACIC VERTABRE DURING EPISODE OF SAME 3/52 AGO. OE ALERT, ORIENTATED, GCS 15, METHOXYFLURANE AND POSTURE AFFECTIVE FOR BACK PAIN. PT HAD REACTION TO MORPHINE PREVIOUS AMBULANCE TX. BLOOD SUGARS STABLE DURING SHORT DISTANCE TO HOSPITAL.
On Examination
Primary Survey no immediate life threat
Secondary Survey Left & Right thoracic spine pain described as tenderness
Initial Assessment back pain; hyperglycaemia”.[6]
[6] ARD, p 126.
The Lithgow District Hospital notes
The Lithgow District Hospital notes dated 26 November 2016 recorded the following progress note made by Dr Katie Treble, agency doctor:
“34M
BIBA with seizure
background poorly controlled DMT1recent T-spine #s sustained in hypoglycaemic seizure
hx DMT1 on insulin
erratic compliance with medication regime
doesn’t check his sugars - glucometer broken
took insulin 6U but had no lunch. thinks had breakfast
lost consciousness and had seizure while sitting in seat in truck
workmates dragged him outside and gave lemonade, terminating seizure
on arrival of ambulance, BSL 3.2 -> 2.9 on arrival in EDnow complaining of back pain
ED visit with hypoglycaemic seizure 3/12 ago
at this time, seizure -> thoracic back painCT'd as outpatient the following day:
Minor depression irregularity associated with superior endplates of T4, T5 and T6 vertebral bodies consistent with endplate fractures.
pt has never had seizures before the past month
diagnosed with DM - 3y ago in Wooloongong [sic] ? Shoalhavenhas been poorly controlled throughout
OE
wellcomplaining of severe pain in mid-spine …”.[7]
[7] ARD, p 132.
Dr Treble recorded her impression as follows:
“hypoglycaemic seizure 2 insulin administration on empty stomach
likely exacerbation of old thoracic spine injury, needs further assessment
explained to patient the very serious consequences of hypoglycaemic seizures, including permanent brain damage and death
impressed upon him the huge importance of taking proper care of his diabetes”.[8]
[8] ARD, p 133.
The respondent was transferred to Nepean Hospital on 27 November 2016. The hospital admission records noted:
“Presenting problem:
34yo man transferred to Nepean Hospital post hypoglyaemic seizure.
2 hypoglycaemic seizures in the last month.
23rd October seizure. BSL 2.1 which rose to 2.9 with treatment by paramedics. Fractures of T4,5,6 noted on CT the next day. Nocte Lantus odse reduced to 10 u
26th November. Had morning insulin 4u novorapid and iced coffee. For lunch took insulin 4u again and had half a sandwich and a cocopops breakfast bar. Felt unwell like hypoglycaemia. Asked his friend to buy him lollies then had a seizure. Given lemonade by bystanders. BSL 3.2 by paramedics but 2.9 on arrival in ED. CT shows new fracture of T11 - 40% loss of height, some posterior buckling with bony retropulsion 6mm - causing mild central canal stenosis
Has had similar routine last few years since diagnosis. Rarely checks sugars. Poor diet.”[9]
[9] ARD, p 140.
WorkCover certificate of capacity
A WorkCover certificate of capacity issued by Dr J Tay, neurosurgical medical officer at Nepean Hospital and signed by Dr Tay on 29 November 2016 diagnosed the respondent as suffering from a “hypoglycaemic seizure causing fall causing T11 fractures due to administration of insulin (on empty stomach)”. The certificate was signed by the respondent on 5 December 2016.[10]
[10] ARD, pp 157–159.
Dr Mortadha Shawki, general practitioner
Dr Shawki, the respondent’s general practitioner, provided a report dated 28 March 2017 directed to the respondent’s legal representatives.[11] Dr Shawki advised that the respondent had first consulted him on 5 December 2016, with a history of having suffered a hypoglycaemic attack followed by a seizure, following which he was pulled from the truck he was in and taken by ambulance to Lithgow District Hospital and Nepean Hospital.
[11] Reply to Application to Resolve a Dispute (Reply), pp 35–36.
Dr Shawki was of the view that the seizure alone was unlikely to have caused a vertebral fracture and that as the respondent was unconscious, there was no clear history of how the respondent was pulled from the vehicle.
The radiological reports
A CT scan of the respondent’s thoracic spine was conducted on 24 October 2016. Dr Senan Nagaratnam, radiologist, provided a report on the same date, in which he concluded that there was “Minor depression irregularity associated with superior endplates of T4, T5, and T6 vertebral bodies consistent with endplate fractures.”[12]
[12] ARD, p 111.
On 26 November 2016, Dr Nagaratnam also reported on an x-ray of the respondent’s thoracic spine undertaken that day. The x-ray report observed as follows:
“Superior endplate irregularity with sclerosis noted associated with T4, T5 and T6 vertebral bodies consistent with healing fractures essentially unchanged since 24/10/2016. No change in height with minor height reduction. However, associated with the L1 vertebral body there is a wedge fracture with height reduction being about 60% anteriorly. Minor bulge of the posterior cortex into the canal with a height reduction posteriorly being about 20%. This has developed since the previous CT scan from 24/10/2016.”[13]
[13] ARD, p 112.
A CT scan of the respondent’s thoracic spine on 26 November 2016 reported on by Dr Matthew Healy, radiologist, noted:
“Comparison is made with a prior CT thoracic spine from 24/10/2016. Correlation is made also with the x-rays performed earlier today.
The bones appear significantly osteopaenic. There is some sclerosis involving the superior end plates of T4, T5, T6 and T7 in keeping with subtle healing end plate fractures in these locations. No bony retropulsion is seen and no involvement of the posterior elements is demonstrated. Alignment is unchanged from 24/10/2016.
There is a new compression fracture involving T11 with loss of height centrally of up to 40%.”[14]
The appellant’s forensic medical opinions
[14] ARD, pp 113–114.
Dr Vidyasagar Casikar, neurosurgeon
Dr Casikar was retained by the appellant’s legal representatives and provided reports dated 24 October 2018[15] and 27 October 2018.
[15] Reply, pp 37–39.
The initial report bore the heading “File Review”. Dr Casikar referred to, but did not identify, the documentation provided to him.
Dr Casikar recorded a short history that the respondent suffered a compression fracture of the T11 vertebral body following a seizure on 26 November 2016. Dr Casikar responded to specific questions posed by the appellant, advising that:
(a) the respondent’s employment did not cause the hypoglycaemic attack. The respondent had experienced a similar attack five weeks before when he fell on concrete at home;
(b) the fact that the respondent was working at the time of the incident was incidental and the attack would have occurred regardless of whether he had been at work;
(c) the attack was caused by the respondent’s pre-existing diabetes;
(d) the fracture could have occurred because of “the fall’ when he had the seizure, but the fact that the respondent was in the truck would indicate that the fall was not serious;
(e) contrary to A/Prof Fearnside’s view the fracture would not have occurred as a result of being pulled from the truck;
(f) the respondent had a severe fall on 22 October 2016 and on the balance of probabilities, the fracture was present when the respondent fell onto concrete at home;
(g) he believed the respondent fell at the beginning of the seizure, which is when he would have lost consciousness, and
(h) the radiologist recorded that the respondent suffered from osteopenia, which exposes him to compression fractures with minor injury so that it was difficult to attribute any impairment due to a work injury.
In his second report, Dr Casikar once again referred to documentation that was provided to him, but did not identify any, other than a CT scan dated 6 September 2017. He said the CT scan showed a compression fracture on the background of Schmorl’s nodes, which is a disease of chronic degenerative process. Dr Casikar indicated that the T11 fracture seemed to be of more recent origin. Dr Casikar confirmed that, on the basis of the documentation before him, it was possible that the fracture occurred in the fall at home onto concrete, which was severe in nature.
Professor John Carter, endocrinologist
Professor Carter provided a report dated 24 May 2019.[16] He recorded a history of the physical work the respondent had undertaken on 26 November 2016, noting that during the morning the respondent had eaten several sweets but despite also having eaten half his lunch, the respondent felt unwell. Prof Carter consistently recorded the sequence of events thereafter and details of the earlier event on 22 October 2016.
[16] Reply, pp 42–48.
Prof Carter formed the view that the cause of the respondent’s seizure was the hypoglycaemic condition and that the respondent was at increased risk of suffering hypoglycaemia because of the increased physical activity he undertook that day. Prof Carter noted that seizures are an uncommon consequence of hypoglycaemia in an adult, which lent support for his opinion that the workload increased the risk. Prof Carter added that the exercise undertaken by the respondent in his employment was a substantial contributing factor to the development of the hypoglycaemia and the subsequent seizure.
Prof Carter concluded that there was a clear association between the fracture of T11 and hypoglycaemic seizure that occurred in the truck on 26 November 2016.
The respondent’s forensic medical opinions
Associate Professor Michael Fearnside, neurosurgeon
A/Prof Fearnside examined the respondent and provided a report dated 25 May 2017.[17]
[17] ARD, pp 76–80.
A/Prof Fearnside noted the respondent’s employment with the appellant as a traffic controller and recorded the history that on 26 November 2016, the respondent had completed his duties and was requested to assist with labouring work, which involved manually filling holes with soil. A/Prof Fearnside recorded that the workers then went to lunch when the respondent felt ill and asked the driver of the truck to stop at the lolly shop and buy some sugary confectionary. A/Prof Fearnside noted that the respondent had no further recollection of what happened until he awoke, lying on the ground with severe back pain. A/Prof Fearnside observed that apparently, the respondent had suffered a hypoglycaemic seizure, and as a result of being extracted from the truck, suffered a fracture of the T11 vertebral body of the thoracic spine.
A/Prof Fearnside recorded details of NSW Ambulance transporting the respondent to Lithgow District Hospital, the transfer to Nepean Hospital and the respondent’s subsequent treatment and progress.
A/Prof Fearnside referred to the earlier incident on 22 October 2016 and observed that it seemed likely that the upper thoracic fractures from T4 to T6 occurred at that time. A/Prof Fearnside reviewed the radiological investigations and commented that the T11 fracture seen on the CT scan dated 26 November 2016 appeared to be a recent fracture, and that reference to the L1 vertebra in the x-ray of that date should probably be a reference to the T11 vertebral body.
A/Prof Fearnside concluded that it seemed likely that the respondent suffered a compression fracture of T11 in the incident on 26 November 2016, either when he experienced the seizure while he was in the truck, or when he was being removed from the truck by his workmate.
A/Prof Fearnside re-examined the respondent on 26 June 2018 and provided a report of the same date.[18]
[18] ARD, pp 81–87.
A/Prof Fearnside confirmed the history recorded in his earlier report and detailed the respondent’s ongoing pain, treatment and restrictions. He observed that there was some uncertainty about the mechanism of injury causing the fracture of the T11 vertebral body. A/Prof Fearnside asked the respondent to provide further details of the incident on 22 October 2016. A/Prof Fearnside recorded that the incident on 22 October 2016 occurred after the respondent had eaten his breakfast and that, other than the later incident on 26 November 2016, the respondent had suffered no other seizures.
A/Prof Fearnside again reviewed the radiological investigations and, on this occasion, also reviewed the statements of Mr Lewis, the NSW Ambulance Electronic Medical Record and the clinical records of Lithgow District Hospital.
A/Prof Fearnside was asked to provide his opinion as to whether the fracture occurred when the respondent was being pulled from the truck by his workmate or during the diabetic seizure. He said that, on the balance of probabilities, it was difficult to give an answer. A/Prof Fearnside observed that it was not possible to determine exactly what happened to the respondent’s spine while he was having the seizure in the truck. A/Prof Fearnside noted that Mr Lewis said that he carefully removed the respondent from the truck, and A/Prof Fearnside thought it, therefore, unlikely that the respondent would have suffered a compression fracture in that manoeuvre. A/Prof Fearnside reasoned that the more recent T11 fracture was likely to have occurred as a result of a greater trauma than that experienced on 22 October 2016, because of the degree of compression of the T11 vertebral body.
A/Prof Fearnside concluded that it seemed likely that the fracture occurred between the time Mr Lewis left the truck and the time the respondent recovered from the hypoglycaemic episode. A/Prof Fearnside provided a paper produced by Dr R J Napier and Dr P C Nolan and published in 2011,[19] which A/Prof Fearnside said showed that vertebral fractures have been recorded in patients experiencing seizures. A/Prof Fearnside said, however, it was not certain that the respondent was exposed to violent forces sufficient to cause the fracture during the hypoglycaemic episode without there being a pre-disposing factor of osteoporosis.
[19] ARD, pp 88–89.
A/Prof Fearnside further concluded that it was possible that the seizure caused the fracture, and unlikely that there was sufficient trauma during the removal of the respondent from the truck to cause such a fracture. A/Prof Fearnside stated that it was very difficult to provide an informed comment.
Dr Stephen Thornley, endocrinologist
Dr Thornley provided a report dated 20 June 2019.[20] He was provided with a long list of documents which he reviewed, including the statements of the respondent, Ms Chapman and Mr Lewis, as well as the radiological evidence, and the records from NSW Ambulance, Lithgow District Hospital and Nepean Hospital.
[20] ARD, pp 90–96.
Dr Thornley took a consistent history of the incident on 22 October 2016 and the respondent’s work duties on 26 November 2016. Dr Thornley recorded that on 26 November 2016, the respondent:
(a) took his usual insulin and had breakfast, which consisted of iced coffee;
(b) “grazed” throughout the morning on a packet of chips, a muesli bar, and
(c) took his usual dose of insulin and ate half a sandwich as well as a Coco Pops bar at around midday.
Dr Thornley recorded that the respondent began to feel unwell in the truck and his work colleague went to the lolly shop to get him something sweet. Dr Thornley noted that when the colleague returned to the truck, the respondent was unconscious and having a seizure, so the colleague pulled the respondent out of the vehicle.
Dr Thornley noted that when the respondent became conscious, he was suffering from severe back pain, and a CT scan taken on that day disclosed a new fracture at the T11 level, which was not present in the earlier scan.
Dr Thornley further noted the pathology results from Nepean Hospital conducted on 29 November 2016, which he said were consistent with reasonable, but not perfect, diabetic control.
Dr Thornley responded to specific questions put to him by the respondent’s legal representatives. He advised that:
(a) the incident on 26 November 2016 was contributed to by the heavy physical work performed that day;
(b) the vertebral fracture at T11 identified in the CT scan dated 26 November 2016 was a new fracture, and
(c) there was a clear relationship between the injury sustained and the seizure which resulted from the hypoglycaemia experienced on that day.
THE ARBITRATOR’S REASONS
The Arbitrator summarised the respondent’s case and noted that the appellant disputed a causal nexus between the fracture and the respondent’s employment and asserted that the fracture of the T11 vertebral body occurred in the event in October 2016 and not 26 November 2016. The Arbitrator further noted that the appellant disputed the claim on the basis that the respondent’s employment was not a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.
The Arbitrator referred to the respondent’s alternate allegation that the low blood sugars caused by the labouring duties aggravated the respondent’s underlying pre-existing diabetes mellitus and the aggravation caused the fracture of the T11 vertebral body. The Arbitrator indicated that the respondent did not require him to determine this alternate proposition if the Arbitrator found in favour of the respondent that the respondent’s hypoglycaemic attack was caused by the duties he performed on the day, causing him to suffer the T11 fracture either during his seizure in the work vehicle or when his co-worker pulled him out of the car and placed him on the ground.
The Arbitrator reviewed the evidence, including the respondent’s statement dated 21 August 2019, in which the respondent gave details of the incident at home on 22 October 2016 and the incident at work on 26 November 2016, as well as his usual routine in respect of treatment for diabetes and diet.
The Arbitrator reviewed the evidence of the CT scan of the thoracic spine dated 24 October 2016 and noted that it did not mention a fracture at the T11 level. The Arbitrator also reviewed the x-ray of the thoracic spine dated 26 November 2016, which he noted referred to a wedge fracture of the L1 vertebra. The Arbitrator indicated that the CT scan of the thoracic spine undertaken on 26 November 2016 reported a new crush fracture of the T11 level and determined that the reported L1 fracture in the x-ray was a typographical error and ought to have referred to T11.
The Arbitrator drew the conclusion that the scans supported the hypothesis that the T11 vertebral body was fractured on 26 November 2016 and did not support the view that the fracture occurred in the incident at home on 22 October 2016. The Arbitrator said that he was satisfied that the scans excluded the possibility that the T11 fracture happened in the earlier incident.
The Arbitrator referred to the history recorded in a WorkCover certificate of capacity provided by Dr J Tay, Nepean Hospital Medical Officer, dated 28 November 2016 that the hypoglycaemic seizure caused a fall, which occurred because the respondent had administered insulin on an empty stomach. The Arbitrator observed that the respondent denied that he had fallen at work, which was consistent with the evidence of Mr Lewis. The Arbitrator noted that the respondent’s evidence was that he had eaten a sandwich and a Milo bar before injecting the insulin at lunchtime. The Arbitrator accepted that at the time the respondent signed the certificate, he was affected by pain medication and did not read the certificate properly.
The Arbitrator summarised the evidence in the respondent’s statement and noted that the respondent’s partner, Ms Chapman, had also provided a statement. The Arbitrator referred to the evidence that Ms Chapman would pack the respondent’s lunch each day, including on 26 November 2016, which would constitute the same things every day. The Arbitrator observed that Ms Chapman’s evidence was consistent with that of the respondent in relation to the food he had with him on 26 November 2016, which he said he had consumed.
The Arbitrator summarised the statement evidence from Mr Lewis, which included details of what transpired while the respondent was unconscious. The Arbitrator also referred to the content of the injury claim form, which was consistent with the evidence of Mr Lewis as to what had occurred.
The Arbitrator turned his mind to the medical evidence.
The Arbitrator considered the history recorded by A/Prof Fearnside in his report dated 25 May 2017 to be consistent with the evidence. The Arbitrator reviewed A/Prof Fearnside’s discussion in his supplementary report dated 26 June 2018 of the radiological evidence, the clinical notes from Lithgow District Hospital and the ambulance officers’ report. The Arbitrator considered A/Prof Fearnside’s discussion of the probable mechanism of injury causing the fracture of the T11 vertebral body.
The Arbitrator further considered the evidence of Dr Thornley. He noted the history provided, the sequence of events on both 22 October 2016 and 26 November 2016, the work duties the respondent was performing on the day of the alleged injury and the food he had eaten. The Arbitrator referred to Dr Thornley’s conclusion that the hypoglycaemic event was likely caused by heavy physical work on the morning of 26 November 2016 and that the new T11 fracture was sustained either as a direct result of the seizure or being lifted from the work truck to the ground.
The Arbitrator also referred to the opinion of Prof Carter and said that the history recorded by Prof Carter accorded with that of the balance of the evidence. The Arbitrator noted Prof Carter’s view that it appeared that the T11 fracture occurred on 26 November 2016 and that there appeared to be a clear association between the fracture and the hypoglycaemic seizure occurring in the work truck. The Arbitrator quoted from the report and Prof Carter’s conclusion that the respondent was at increased risk of a hypoglycaemic attack because of the increased physical activity on that day. The Arbitrator further noted Prof Carter’s view that the physical exercise undertaken on that day was a substantial contributing factor to the development of hypoglycaemia and the subsequent seizure.
The Arbitrator observed that both endocrinologists were of the view that there was a contribution from the respondent’s employment to the hypoglycaemic seizure on 26 November 2016. The Arbitrator considered that the stronger view was that proffered by Prof Carter that the employment was a substantial contributing factor.
The Arbitrator noted that neither doctor expressed clear reasons for their conclusions, but observed that in his statement, the respondent had asserted that he was advised by Dr Shawki that the type of hard labour he was performing on the day in question depleted his glucose levels.
The Arbitrator concluded that on the basis of the opinions of Prof Carter, Dr Thornley and Dr Shawki, he was satisfied that the unusually heavy work the respondent performed on 26 November 2016 reduced the respondent’s glucose levels, leading to the onset of hypoglycaemia which caused the seizure.
The Arbitrator turned to the question of whether there was a causal connection between the seizure and the T11 fracture.
The Arbitrator considered the report of Dr Casikar. He observed that Dr Casikar was a neurosurgeon, there was no indication that the doctor had actually examined the respondent, and the documents that were provided to Dr Casikar were not identified. The Arbitrator noted Dr Casikar’s opinion that the respondent’s employment did not cause the hypoglycaemic attack and that Dr Casikar observed that the respondent had suffered a similar attack at home five weeks beforehand. The Arbitrator said that he was not convinced that the fact that the respondent had suffered a similar earlier event meant that there was no relationship between the respondent’s employment and the event on 26 November 2016. The Arbitrator said that it did not appear that Dr Casikar had the benefit of the history taken by the endocrinologists that the respondent felt his blood sugar levels were low, sought food and drink as a remedy just prior to the seizure, and had been performing heavy work that day. The Arbitrator added that he preferred the evidence of Dr Thornley and Prof Carter because as endocrinologists, their specialty was more appropriate to address the question of causation. The Arbitrator referred to Dr Casikar’s view that “the fall was not very serious,” that pulling the respondent from the work truck was unlikely to have caused the fracture and the earlier fall was quite severe. The Arbitrator also referred to Dr Casikar’s supplementary report produced after Dr Casikar had been provided with the CT scan report dated 24 October 2016, in which Dr Casikar maintained his opinion that the fracture occurred in the earlier fall at home. The Arbitrator said that Dr Casikar’s conclusion that the fracture occurred in the earlier fall was not consistent with the CT scan undertaken on 24 October 2016.
The Arbitrator rejected the opinion of Dr Casikar and concluded that he was satisfied that the respondent did not suffer the fracture of the T11 vertebral body in the fall at home on 22 October 2016.
The Arbitrator reviewed the entries in the Lithgow District Hospital notes in which it was recorded that the respondent “does not eat at work” and, observed that clinical notes should be treated with caution, citing the Presidential decisions of Renew God’s Program Pty Ltd v Kim[21] and Winter v New South Wales Police Force.[22] The Arbitrator considered that in the context of the serious seizure suffered by the respondent, it was conceivable that the respondent may have been in a state of confusion. The Arbitrator said that, alternatively, the statement that he does not eat at work may have been accurate in the general sense but that did not mean that the respondent made the admission that he did not eat that day. However, the Arbitrator formed the view that the statement was not accurate and that the entry did not cause him to doubt the respondent’s evidence as to what he ate that morning.
[21] [2019] NSWWCCPD 45 (Kim).
[22] [2010] NSWWCCPD 121 (Winter).
The Arbitrator further referred to the entry made shortly after the respondent’s admission to the Lithgow District Hospital Emergency Department, in which it was noted that the respondent took insulin that day but did not eat lunch. The Arbitrator reasoned that the phrase “had no lunch” may have meant that the respondent did not eat lunch in the truck when his evidence was that he ate beforehand, at the time he was taking his insulin prior to 1pm. The Arbitrator said that it was not possible to accurately ascertain the meaning of the words “had no lunch,” and he could not be satisfied that the respondent had made an admission that he had not eaten before and after the insulin injection. The Arbitrator concluded that the clinical notes did not cause him to doubt the respondent’s evidence in relation to the food the respondent ate on that day.
The Arbitrator added that there was no source evidence before him that supported the entry in the WorkCover certificate of capacity issued by Dr Tay, in which it was recorded that the respondent had taken insulin on an empty stomach. The Arbitrator referred to his observation already made about the certificate and said that in the absence of evidence of the source of that entry, he could not accept the assertion that the respondent took insulin on an empty stomach.
The Arbitrator said that it was not necessary to precisely determine the question of when the fracture of the T11 vertebral body occurred.
He confirmed that he was satisfied that the heavy labour performed by the respondent on 26 November 2016 caused the respondent’s glucose levels to drop, which in turn, caused a hypoglycaemic attack and the subsequent seizure. The Arbitrator indicated that the medical evidence accepted by him raised the possibility that the fracture occurred when the respondent suffered the seizure in the truck or when he was being moved from the truck and put on the ground. The Arbitrator concluded that in either the direct event of the seizure, or the indirect event of being moved from the truck, the T11 fracture occurred as a consequence of the seizure.
The Arbitrator concluded that he was satisfied that the common sense chain of causation referred to in Kooragang Cement Pty Ltd v Bates[23] was established. The Arbitrator said that on the basis of that finding, it was not necessary for him to determine the alternate pleading that the injury was an aggravation of an underlying disease process. The Arbitrator added that the common sense chain of causation persuaded him that the respondent’s employment was a substantial contributing factor to the fracture of the T11 vertebral body and that the injury was therefore work related.
[23] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The Certificate of Determination issued on 18 October 2019, in which the Arbitrator found in favour of the respondent (the applicant in the arbitral proceedings) is reproduced above at [8].
GROUNDS OF APPEAL
The appellant brings four grounds of appeal, expressed as follows:
(a) the Arbitrator erred by failing to make a determination on the issue of injury as defined by s 4 of the 1987 Act and in accordance with authority (Ground One);
(b) the Arbitrator erred in finding that the work was a substantial contributing factor to the fracture of the T11 vertebral body (Ground Two);
(c) the Arbitrator erred in finding the respondent suffered injury as defined by s 4 of the 1987 Act (Ground Three), and
(d) the Arbitrator erred in finding that the respondent’s work was a substantial contributing factor to the injury (Ground Four).
SUBMISSIONS
Ground One: Failure to determine the issue of injury as defined by s 4 of the 1987 Act and in accordance with authority
The appellant’s submissions
The appellant submits that one of the issues identified for determination was whether the hypoglycaemic event was caused by the heavy duties the respondent was performing on 26 November 2016, or whether it was caused by the respondent’s failure to eat sufficient food. The appellant concedes that Ms Chapman’s evidence was that she packed sufficient food for the respondent to take to work, but submits that Mr Lewis, who worked with the respondent on that day, did not confirm that the respondent actually ate that food before the event occurred.
The appellant submits that the absence of that evidence is important because on admission to hospital, the respondent provided a history that he does not eat at work. The appellant contends that the respondent gave the same history to Dr Treble, who recorded that the respondent took six units of insulin without eating lunch and thought he had eaten breakfast. The appellant says that a similar history was provided to Dr Tay.
The appellant says that accordingly, there was an issue to be determined as to what prompted the hypoglycaemic attack.
The respondent’s submissions
The respondent contends that the Arbitrator did not err in determining the question of injury. The respondent submits that the Arbitrator identified the issue for determination and gave reasons for his factual findings that the evidence in the Lithgow District Hospital Emergency Department records that the respondent did not eat at work on the day in question should be afforded no weight. The respondent says that the Arbitrator was satisfied that the statement was inaccurate and did not cause him to doubt the respondent’s evidence that about what he ate that morning. The respondent further refers to the Arbitrator’s reliance on Kim and Winter, as authority for the proposition that clinical notes should be treated with caution. The respondent further referred to the Arbitrator’s consideration of the evidence of Dr Treble and the evidence of the WorkCover certificate of capacity completed by Dr Tay.
The respondent points out that the appellant’s own qualified opinion from Prof Carter was consistent with that of Dr Thornley. That is:
(a) the physical exercise undertaken by the respondent on the day in question increased the risk of hypoglycaemia and in turn increased the risk of a seizure;
(b) the respondent’s employment was a substantial contributing factor to the development of hypoglycaemia and in turn the seizure, and
(c) there was a clear association between the fracture of T11 and the hypoglycaemic seizure.
The respondent contends that there is no identified error in the Arbitrator’s fact finding in relation to the clinical notes and the WorkCover certificate of capacity and the acceptance of the balance of the evidence, and accordingly, Ground One of the appeal should fail.
The respondent submits that the Arbitrator accepted the opinions of A/Prof Fearnside, Dr Thornley and Prof Carter. The respondent contends that those opinions were consistent with the radiological findings that showed that it was more probable than not that the T11 fracture resulted from the seizure, either in the work truck or when being extracted from the vehicle. The respondent asserts that either way, the injury is shown to have arisen from the employment in both a causal and a temporal sense, and once that was satisfied, it remained to consider whether the employment was a substantial contributing factor to the injury.
The respondent refers to s 4 of the 1987 Act and cites Zickar v MGH Plastic Industries Pty Ltd[24] as authority to say that an “injury” is a sudden or identifiable pathological change in the body. The respondent submits that the fracture of the T11 vertebral body was a sudden identifiable change in the body sufficient to constitute a personal injury pursuant to s 4(a) of the 1987 Act.
Ground Two: The Arbitrator erred in finding that the work was a substantial contributing factor to the fracture of the T11 vertebral body
[24] [1996] HCA 31; 187 CLR 310 (Zickar).
The appellant’s submissions
The appellant submits that even if the physical work initiated the hypoglycaemic event, it did not aggravate, accelerate, exacerbate or cause a deterioration of a disease condition, namely the respondent’s diabetes Type 1. The appellant asserts that this is highlighted by Dr Thornley’s opinion that:
“The diagnosis is of reasonably controlled type 1 diabetes mellitus, complicated by two hypoglycaemic events. The first at home on 22 October 2016 explained by taking his normal insulin dose in the morning but not eating. The second on 26 November 2016, contributed to by unusually heavy physical work that morning, more than he would normally do. On 26 November 2016, [the respondent] also suffered a new vertebral fracture at T11.”[25]
[25] ARD, p 93.
The appellant submits that the respondent’s underlying disease process has not been aggravated, accelerated, exacerbated or deteriorated. The appellant contends that the facts in the Presidential decision in Brooks v Department of Education and Training[26] are similar and the same underlying disease process was involved as in this matter. The appellant points to the facts in that case which were that the appellant suffered from diabetes mellitus, which was difficult to manage while performing her teaching duties. The appellant relies on the following passages from that decision, in which Harrington ADP observed (citation omitted):
“MsBrooks has type 1 diabetes. The medical evidence establishes that diabetes is an inability of the body to produce insulin. Insulin is a hormone that is needed to convert sugar (glucose), starches and other food into the energy needed for daily life. MsBrooks needs to self-administer insulin and thereafter ensure that her blood sugar levels are appropriate and, if not, to take remedial action such as eating snacks between meals. If MsBrooks fails to keep her blood sugar levels under control she may suffer from short term complications such as hyperglycemia or hypoglycemia, and in the long-term complications such as cardiovascular disease, retinopathy (blindness), neuropathy (nerve damage).
In order to succeed in her claim before the Arbitrator, MsBrooks had to establish that employment made the disease worse. As Windeyer J in Federal Broom Company v Semlitch said:
‘The question that each [aggravation, acceleration, exacerbation] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effect on the patient.’”[27]
And
“The medical evidence establishes, in my opinion that in the past MsBrooks may have had symptomatic aggravations of the diabetic disease whilst working as a full-time teacher. MsBrooks is not claiming past closed periods of compensation as result of that symptomatic aggravation of her diabetes. Instead, she is claiming a permanent and ongoing incapacity for teaching to the extent of 40% of per [sic, her] normal teaching week. In order to be successful in her claim MsBrooks would have to establish that as result of work activities her diabetes has been aggravated, accelerated, exacerbated [or deteriorated] permanently. The medical evidence does not support this proposition.”[28]
[26] [2006] NSWWCCPD 263 (Brooks).
[27] Brooks, [27]–[28].
[28] Brooks, [35].
The appellant refers to the Arbitrator’s reasons in which the Arbitrator determined the chain of causation, which was that:
“the heavy physical labour performed by the worker on 26 November 2016 caused his blood sugar levels to drop; that in turn caused him to suffer hypoglycaemia and a consequent series of convulsions; the convulsions either directly caused him to suffer a fracture of T11 while in the truck due to movements of the thoracic spine, or alternatively that fracture was caused when he was being removed from the truck for necessary treatment …
As I am satisfied that the common sense chain of causation exists between the T11 fracture and the work performed on that day, it is not necessary to examine the alternative hypothesis of an aggravation of an underlying disease. The common sense chain of causation that I have outlined persuades me that work was a substantial contributing factor to the fracture at T11, and that the injury was therefore a work injury.”[29]
[29] Transcript of Reasons (T), Rae v WorkControl Pty Ltd, 4406/19, Arbitrator Perrignon, 11 October 2019, T 27.34–28.20.
The appellant submits that the Arbitrator referred to Kooragang, and says that Kooragang is authority for the proposition that the determination of whether the death or incapacity results from the injury requires a common sense evaluation of the causal chain of connection. The appellant contends that the Arbitrator did not determine the injury from which the T11 fracture resulted and therefore erred in the application of Kooragang to his determination.
The respondent’s submissions
The respondent disputes that the Arbitrator erred in determining that employment was a substantial contributing factor to the injury.
The respondent contends that the appellant’s submissions are based on the “theoretical” finding of a “disease” within the meaning of s 4(b)(ii) of the 1987 Act, which was not a finding made by the Arbitrator. The respondent maintains that the Arbitrator specifically found that the respondent suffered from an injury in accordance with s 4(a) of the 1987 Act.
The respondent submits that the appellant’s reliance on Brooks is misplaced because the appellant in that case was relying on the ongoing effects of her type 1 diabetes, which was not the consequence of an injury. The respondent says in his case, he suffers from the ongoing effects of his injury, namely the fracture of the T11 vertebral body which resulted from the short-term aggravation, acceleration, exacerbation or deterioration of his underlying diabetes caused by the physical work performed on the day.
The respondent contends that, nonetheless, the Arbitrator chose to determine that the injury constituted a personal injury in accordance with s 4(a) of the 1987 Act in the Zickar sense, and it was open to the Arbitrator to do so. Further, the respondent submits that the Arbitrator correctly applied Kooragang, and adopted a common sense evaluation of the causal chain that the heavy nature of the employment was a substantial contributing factor to the T11 fracture by lowering the respondent’s blood sugar level which led to the hypoglycaemia.
The respondent maintains that the Arbitrator accepted the opinions of A/Prof Fearnside, Dr Thornley and Prof Carter and that those opinions were consistent with the radiological findings. The respondent submits that the remaining issue was whether the employment was a substantial contributing factor to the injury and the Arbitrator was entitled to apply a common sense consideration to that question. The respondent contends that in addition, the Arbitrator was guided by the evidence of Prof Carter about that issue, which was appropriate.
The respondent submits that Ground Two of the appeal should fail.
Ground Three: The Arbitrator erred in finding the respondent suffered injury as defined by s 4 of the 1987 Act and Ground Four: The Arbitrator erred in finding that the respondent’s work was a substantial contributing factor to the injury
The parties have each addressed these two grounds of appeal in one set of submissions. Such an approach is not satisfactory and the practice of doing so, which is becoming more frequent, is contrary to Practice Direction No 6. The Presidential member should not be required to sort through submissions to determine which submission relates to any particular ground of appeal. Parties should be aware that a failure to comply with Practice Direction No 6 may result in the appeal being rejected. In this case, the Registrar’s delegate issued a Direction, directing the appellant to lodge an Amended Appeal Application that complied with Practice Direction No 6. The original Appeal Application was defective in that it did not:
(a) briefly, but specifically, set out the grounds of appeal, identifying the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found, and
(b) contain appropriate subheadings, which separately address each ground of appeal.
The Amended Appeal lodged was still non-compliant in that it did not address Grounds 3 and 4 under separate sub-headings. It is expected that parties comply with Directions issued by the Registrar’s Delegate. The appellant’s submissions are therefore of no assistance in identifying error on the part of the Arbitrator in any event. It is convenient therefore to summarise the submissions as they have been presented.
The appellant’s submissions
The appellant submits that the excerpt from the Arbitrator’s reasons cited at [106] above indicates that the Arbitrator made a finding of injury pursuant to s 4(b) of the 1987 Act. The appellant asserts that if that was the case, then the Arbitrator was required to determine whether the respondent’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease condition. The appellant contends that the Arbitrator did not undertake any such analysis or make any determination in that regard.
The appellant points out that the Arbitrator determined that employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act, which is inconsistent with any finding made pursuant to s 4(b) of the 1987 Act, that is, whether the employment was the main contributing factor to the injury.
The appellant submits that on any view of the evidence, the respondent’s seizures were caused by an episode which was related to the underlying disease, so that work could be neither a major nor a substantial contributing factor as required by ss 4(b) or 9A of the 1987 Act.
The respondent’s submissions
The respondent asserts that the Arbitrator did not err in determining injury pursuant to s 4 of the 1987 Act or in finding that employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.
The respondent refers to the appellant’s assertion that the Arbitrator’s reasons are indicative of a finding of injury in accordance with s 4(b)(ii) of the 1987 Act and that such a finding required the Arbitrator to consider whether employment was the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of the disease. The respondent contends that that path was open to the Arbitrator but that the Arbitrator found that there had been a frank pathological insult to the T11 vertebral body, and that employment was a substantial contributing factor to that injury, rather than an aggravation of a disease. The respondent maintains that the enquiry as to injury required consideration of whether the respondent suffered a personal injury in accordance with s 4(a) of the 1987 Act and as discussed in Zickar.
THE RELIEF SOUGHT
The appellant seeks an award entered in its favour.
The respondent seeks to have the Arbitrator’s Certificate of Determination confirmed.
CONSIDERATION
Section 352(1) of the 1998 Act provides for an appeal against a decision of an Arbitrator to a Presidential member. Section 352(5) limits the scope of the appeal to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion.
The issues for determination before the Arbitrator in this matter were:
(a) whether the respondent suffered an injury, either in accordance with s 4(a) or s 4(b)(ii) of the 1987 Act, and if so
(b) whether the respondent’s employment was a substantial contributing factor to the s 4(a) injury pursuant to s 9A of the 1987 Act, or
(c) whether the respondent’s employment was the main contributing factor to the s 4(b)(ii) injury.
A determination in respect of each of those matters is a factual determination.
In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[30] are relevant and have been consistently applied in the Commission. Those principles were summarised by Deputy President Roche in Raulston v Toll Pty Ltd[31] as follows:
“…
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”
[30] (1966) 39 ALJR 505.
[31] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19]–[20].
In order to succeed in this appeal, the appellant must show that the Arbitrator erred in a manner consistent with the above principles.
Ground One: The Arbitrator erred by failing to make a determination on the issue of injury as defined by s 4 of the 1987 Act and in accordance with authority
The appellant alleges that the Arbitrator failed to determine the issue of injury as defined by s 4 of the 1987 Act and “in accordance with authority.” There is no reference at all in its submissions under this ground to any authority which the appellant says the Arbitrator should have considered or which demonstrates that the Arbitrator erred in his approach to the issue.
The appellant identifies that the issue the Arbitrator was required to determine was whether the hypoglycaemic attack was caused by the physical work, or whether it resulted from the respondent not having consumed food that day.
The appellant points to the lack of any corroborative evidence from Mr Lewis as to whether the respondent ate on the day in question and says that such an omission is important in the light of the evidence of the Lithgow District Hospital notes, and the evidence of Dr Treble and Dr Tay.
I have read the transcript of the submissions made by the parties at the arbitration. It is fair to say that the appellant argued that the history provided to A/Prof Fearnside, Dr Thornley, and Prof Carter was inconsistent with the notes from Lithgow District Hospital and the history recorded by Dr Treble and Dr Tay. However, the appellant did not submit at all about the absence of evidence from Mr Lewis, or that the absence of that evidence was important. It is not apparent from the appellant’s submissions as to how it is alleged the Arbitrator erred. If the appellant’s criticism is that the Arbitrator did not address the absence of relevant evidence from Mr Lewis, that is a matter that cannot be raised in this appeal. It is not an error for an Arbitrator to fail to deal with an argument that was not raised in the proceedings below.[32]
[32] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
The appellant makes no further submission as to how it is alleged that the Arbitrator erred in respect of this ground of appeal.
The fracture of the T11 vertebral body was the injury described by the respondent in the pleadings and in his evidence. The Arbitrator dealt with the issue of injury by an evaluation of the chain of events that the respondent alleged caused the fracture of the T11 vertebral body. Firstly, the Arbitrator considered the potential causes of the hypoglycaemic event. The Arbitrator noted the case brought by the appellant was that the hypoglycaemic attack was brought on by the failure of the respondent to consume sufficient food to maintain his blood sugar level. The Arbitrator noted that the respondent strongly denied the history recorded in the Lithgow District Hospital notes and by Dr Treble and that the respondent described himself as being in a groggy state at the time those histories were recorded which affected his memory. The Arbitrator determined that the clinical notes were to be treated with caution, relying on Kim and Winter. The Arbitrator determined, after weighing the evidence relied on by the appellant, that the evidence was not sufficient to counter the respondent’s evidence about the food he said he consumed on that day. On that basis he accepted that A/Prof Fearnside, Dr Thornley and Prof Carter had a correct history and accepted their evidence. The Arbitrator then concluded that the respondent suffered the T11 fracture either during the seizure which resulted from the hypoglycaemia or while being extracted from the work truck.
The appellant makes no submission as to why that conclusion was not open to the Arbitrator, or how it is alleged the Arbitrator erred in respect of this ground of appeal. In order to succeed in the appeal, each ground of appeal must clearly identify the alleged error in the decision below.[33] The appellant identifies no error of fact in the Arbitrator’s reasoning process and on a plain reading of the Arbitrator’s reasons, no error is apparent.
[33] Kowalski v Repatriation Commission [2011] FCAFC 43, [21].
Ground One of the appeal therefore fails.
Ground Two: The Arbitrator erred in finding that the work was a substantial contributing factor to the fracture of the T11 vertebral body
Curiously, the appellant’s submissions in respect of this ground commence with the statement that the appellant disputes that even if the physical work the respondent was performing caused the hypoglycaemic event, it did not constitute an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act. The appellant relies on Brooks to support that assertion.
The appellant refers to the Arbitrator’s reasoning process, in which the Arbitrator determined that:
(a) the physical work performed by the respondent on 26 November 2016 caused the respondent’s blood sugar level to drop;
(b) that in turn caused the hypoglycaemia and the seizure ensued;
(c) the seizure either caused the T11 fracture while in the work truck, or the fracture was caused by being removed from the truck for necessary treatment, and
(d) the respondent’s employment was a substantial contributing factor to the injury.
The appellant asserts that the Arbitrator erred in the application of Kooragang by not determining the injury from which the T11 fracture resulted. It is not apparent how this submission sits with the appellant’s argument that the injury received by the respondent was not a disease within the meaning of s 4(b)(ii) of the 1987 Act. Nor is it apparent how it relates to the alleged error on the part of the Arbitrator that he was wrong in finding that the respondent’s employment was a substantial contributing factor to the T11 fracture.
The submission cannot be accepted in any event. The injury relied upon by the respondent was the “Thoracic spine (Fracture to T11) consequent upon a hypoglycaemic event.”[34] The respondent claimed ongoing weekly payments of compensation, treatment expenses and a lump sum in respect of 17% whole person impairment pursuant to s 66 of the 1987 Act because of that injury. The Arbitrator was not required to determine whether the onset of hypoglycaemia was an “injury,” or the seizure was an “injury” within the meaning of s 4 of the 1987 Act. All that the Arbitrator was required to do was to ascertain whether the injury (the fracture of the T11 vertebral body) resulted from the physical work the respondent undertook on the relevant day. In considering the common sense chain of causation described in Kooragang, the Arbitrator provided a properly reasoned pathway to arrive at the result that the fracture of the T11 vertebral body was a personal injury as defined by s 4(a) of the 1987 Act and that employment was a substantial contributing factor to that injury in accordance with s 9A of the 1987 Act.
[34] ARD, PART 4 – injury description.
The Arbitrator specifically, and appropriately, excluded from consideration the respondent’s alternate “hypothesis” that the injury constituted an aggravation of a disease process within the meaning of s 4(b)(ii) of the 1987 Act.[35] In those circumstances, Brooks has no application to this matter and the appellant’s submission that the injury was not an injury within the definition of s 4(b)(ii) is otiose.
[35] T28.13–20.
There was no error in the approach taken by the Arbitrator, and this ground of appeal fails.
Ground Three: The Arbitrator erred in finding the respondent suffered injury as defined by s 4 of the 1987 Act
The appellant asserts that the reasoning process adopted by the Arbitrator indicates that the Arbitrator found that the respondent suffered an aggravation injury as defined in s 4(b) of the 1987 Act.
The submission is rejected. The Arbitrator made no such finding.
As noted at [140] above, the Arbitrator specifically excluded from consideration the issue of whether the injury suffered was an aggravation of a disease process. The respondent submits that the injury found by the Arbitrator was a “frank” injury pursuant to s 4(a) of the 1987 Act. That is, it was a sudden identifiable pathological insult to the T11 vertebral body as described by the High Court in Zickar. I accept that submission.
It follows that Ground Three of the appeal fails.
Ground Four: The Arbitrator erred in finding that the respondent’s work was a substantial contributing factor to the injury
The appellant submits that because the Arbitrator determined that the respondent suffered an injury within the meaning of s 4(b) of the 1987 Act, he was required to consider whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease and not whether the employment was a substantial contributing factor in accordance with s 9A of the 1987 Act. The appellant contends that the Arbitrator’s finding in relation to s 9A is inconsistent with his finding that the respondent suffered injury within the meaning of s 4(b)(ii).
The Arbitrator made no such finding in relation to the injury. It follows that there was no inconsistency between the Arbitrator’s finding as to injury and his finding that employment was a substantial contributing factor to the injury.
The appellant submits that the evidence establishes that the respondent’s seizures were caused by an episode related to the underlying disease, so that on any view of the evidence, the employment could be neither a substantial contributing factor nor the main contributing factor to the injury.
The mere fact that the seizure was caused by the respondent’s underlying disease of Type 1 diabetes does not preclude the respondent’s employment being a contributing factor to the fracture of the T11 vertebral body. It is uncontroversial that an injury can have multiple causes.[36] In this case, the evidence from Dr Thornley was that the incident on 26 November 2016 was contributed to by the heavy physical work performed by the respondent on that day. Prof Carter was of the view that the respondent was at increased risk of suffering hypoglycaemia because of the physical activity he had performed that day and that the physical work performed that day was a substantial contributing factor to the development of the hypoglycaemia and the subsequent seizure. The only competing forensic opinion was that of that Dr Casikar. The Arbitrator gave consideration to the evidence of the forensic medico-legal experts and provided a properly reasoned evaluation of that evidence before preferring the opinion of Dr Thornley and Prof Carter over that of Dr Casikar.
[36] ACQ Pty Ltd v Cook [2009] HCA 28; 237 CLR 656; 258 ALR 58; 83 ALJR 986.
To assert that “on any view of the evidence” the employment could not be a substantial or the main contributing factor ignores the very relevant evidence, including that of the appellant’s own forensic medical expert, Prof Carter, that supports the contrary proposition. The Arbitrator accepted that evidence, which was open to him.
The appellant provides no cogent submission that points to error on the part of the Arbitrator in his determination that the respondent’s employment was a substantial contributing factor to the injury.
Consequently, Ground Four fails.
CONCLUSION
The appellant has not identified error on the part of the Arbitrator. Applying the principles set out in Raulston, the Arbitrator did not overlook material facts, or give undue or too little weight in deciding the inference to be drawn, and nor was the available inference in the opposite sense to that chosen by the Arbitrator was so preponderant that it showed that the Arbitrator’s decision was wrong.
The challenge to the Arbitrator’s decision has not succeeded and for the reasons expressed above, the Arbitrator’s Certificate of Determination dated 18 October 2019 is confirmed.
I note that despite the Arbitrator reaching a clear and reasoned conclusion that the respondent suffered an injury as defined by s 4 of the 1987 Act, the Certificate of Determination does not record that finding. I consider that such an omission is, in the circumstances, a mere “slip.” In the Commission, if the Registrar is satisfied that a certificate as to a determination or a statement attached to the Certificate of Determination contains an obvious error, the Arbitrator may issue a replacement certificate or statement to correct the error.[37] The Arbitrator may also alter or amend a decision previously given.[38]
[37] Section 294(3) of the 1998 Act.
[38] Section 350(3) of the 1998 Act.
The matter is to be remitted to the Arbitrator for determination of the remaining issues and to correct the obvious error of omitting to record the finding in relation to injury pursuant to s 4 of the 1987 Act.
DECISION
The Arbitrator’s Certificate of Determination dated 18 October 2019 is confirmed.
The matter is remitted to the Arbitrator for determination of the remaining issues and for the correction of the obvious omission from the Certificate of Determination of the finding that the respondent suffered injury pursuant to s 4 of the 1987 Act.
Elizabeth Wood
DEPUTY PRESIDENT
25 May 2020
0
10
0