Wyong Shire Council v Paterson - [2005] NSWCA 74

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wyong Shire Council v Paterson [2005] NSWCA 74

FILE NUMBER(S):
40693/04

HEARING DATE(S): 15 March 2005

JUDGMENT DATE: 15/03/2005

PARTIES:
Wyong Shire Council - Appellant
Shane Brentnail Paterson - Respondent

JUDGMENT OF: Giles JA Hodgson JA Brownie AJA

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S): WCC 10455-2003

LOWER COURT JUDICIAL OFFICER: Deputy President Fleming

COUNSEL:
G Beauchamp - Appellant
G Rich - Respondent

SOLICITORS:
Greylings Attorneys - Appellant
Taylor & Scott, Newcastle - Respondent

CATCHWORDS:
Workers compensation - decision of Arbitrator - appeal by way of review to Deputy President - appeal to Court of Appeal for error in point of law - references to frank injury and nature and conditions claim - whether error in saying Arbitrator had found a frank injury - Arbitrator found injury suffered on particular date - no error - whether error in finding that there was a reasonable amendment in the Arbitrator permitting a nature and conditions claim - no question of amendment - claim unchanged - injury found - no error; whether error in conducting review without transcript of oral evidence before Arbitrator - transcript unavailable - Deputy President considered she could properly review Arbitrator's decision - absence of transcript does not mean new hearing - assuming there was a discretion, no error shown in exercise of discretion. D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40693/04
WCC 10455-2003
GILES JA
HODGSON JA
BROWNIE AJA
Tuesday 15 March 2005

WYONG SHIRE COUNCIL v PATERSON

Judgment

GILES JA: Mr Shane Paterson (“the worker”) was employed by Wyong Shire Council (“the employer”) from 13 August 2001 to 30 August 2002. He was employed first as a temporary gardener’s assistant and then as a temporary water and sewerage labourer.
The worker claimed worker’s compensation benefits from the employer for injuries to his left hip and back, said to have been suffered on 15 July 2002 and 23 August 2002 respectively. The hip injury had quickly settled and the claim turned on the back injury.
The claim was disputed, and was referred to the Commission in accordance with s 288 of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”).
The dispute was heard by an Arbitrator, who on 13 November 2003 determined that the employer should pay the worker weekly compensation of $200 per week from 14 September 2003 and continuing plus the worker’s s 60 expenses and his costs.
The employer appealed by leave to the Commission constituted by a Presidential member pursuant to s 352 of the Act. The appeal was heard by Deputy President Fleming. It was by way of review of the decision of the Arbitrator, see s 352(5). On 26 July 2004 the Deputy President confirmed the Arbitrator’s decision and ordered that the employer pay the worker’s costs.
This is an appeal against the decision of the Deputy President, brought pursuant to s 353 of the Act.Appeal lies only where a party is aggrieved in point of law, see s 353(1).
I will come to the points of law on which the employer relied, but in order that they can be understood I should go to material facts and events.
Radiology on 9 September 2002 showed that the worker had a mild central disc protrusion at L4/L5. The questions were whether the worker had suffered an injury, which this radiology supported although not the occasion of the injury, and whether the worker’s employment was a substantial contributing factor to the injury within s 9A of the Workers Compensation Act ("the WC Act").
The evidence on which these questions were to be decided began with the worker’s claim dated 27 August 2002. He said that on 23 August 2002 he was “walking through the car park when shattering feeling went in my back,” identifying his lower back.
There were then histories and opinions in a number of medical reports. The worker tendered reports of Dr Palan and Dr Collins. The employer tendered reports of Dr Hollingsworth, Dr Khan and Dr Bornstein.
The worker saw Dr Palan on 5 September 2002. Dr Palan took a history -
“Mr Shane Paterson initially saw my locum Dr Bhaga (whose notes I cannot decipher clearly) on 26.8.02. He complained of back pain and was referred to Dr Bhaga by Wyong Hospital Casualty Department on the same day. He was again seen by Dr Bhaga on 27.8.02.
“He stated that on 23.8.02 he was employed (by Wyong Shire Council) as a casual labourer. He was picked up by his work truck at about 6.30 am and performed the morning duties at Tuggerah. The rain came and he went back and sat in the truck waiting for the rain to stop. He stated that ‘smoko’ time had arrived and he got into another truck and was driven to Chittaway shops and bought some food. He was walking back to his truck and halfway there he felt ‘jitters’ and a few seconds later felt pain in his lower back (‘like a back chill’). He got into the truck and they drove back to the work site at Tuggerah. He finished his food in the truck. He got out to continue his job, he took a few steps and felt a sudden pain in the lower lumbar area and ‘collapsed’ to the ground. He got up to his feet but his back pain became progressively worse.”
Dr Palan’s report had a heading inviting his opinion on the relationship between “the accident and/or nature and conditions of employment and the applicant’s medical condition.” His opinion was stated -
“Mr Paterson stated that his back pain occurred during his work hours while walking to his truck. He was not doing any manual work at that time.”
The worker saw Dr Collins on 9 January 2003. Dr Collins took a history -
“The back condition began after he had been doing some light work shovelling dirt and tar into a road crossing where they had been working. He went to get refreshments during his ‘smoko’ and when walking back he suddenly noticed a feeling of tightness and tingling in the lower back which he describes as ‘walking over his grave’. He had pain like an electric shock going down both legs going down to his toes. It was only instantaneous. A short while later when he was getting back to the job he experienced pain in the back going down into both legs which lasted, he feels, for about two minutes. He lay on the ground and could not move because of lack of strength in his muscles. However there was some pain which has remained and it has remained up till the present.”
Dr Collins said in his report under the heading “Relationship to work” -
“I feel that his condition probably is related to the nature and conditions of his work. He is a young man and should not have disc degeneration. However there are radiological changes of prolapse of disc L4-5, and a history of leg pains consistent with nerve root irritation. As to whether it has been caused by either of the two incidents mentioned, I think that on the balance of probabilities they were responsible for the condition and in particular the second episode.”
The worker saw Dr Hollingsworth on 27 August 2002. Dr Hollingsworth recorded the history -
“On Friday 2002 he was walking along and felt pain in the right side of his lower back. There was evidently no specific injury. The pain became worse and eventually he was seen by his local medical officer who referred him to Wyong Hospital where he was admitted for examination and blood tests.”
Dr Hollingsworth said in his report,“In the absence of any specific injury I cannot see how this could be classified as work related.”
The worker was examined by Dr Khan on 2 September 2002. Dr Khan recorded a history -
“On 23 August 2002, he started his normal shift at 6.30am. He did not work and was sitting around in a truck waiting for the rain to clear. He then got out of the truck to go for a smoko break to the local shops. He was then walking through the car park when he developed shivers in his back and developed spasms in the lower back going into both his legs. He dropped to the ground and could not move for a couple of minutes. The back spasm settled after a few minutes and he was then able to get up. The symptoms were reported at work and he was advised to see the company doctor.”
Dr Khan said in his report under a sub-heading “Causation”, “It is my opinion that the worker continues to suffer the effects of the alleged incident that occurred on 23 August 2002. There does not appear to have been any injury on this date.”
Finally of the medical reports, the worker saw Dr Bornstein on 17 March 2002. Dr Bornstein recorded a history -
“I am told that on the second occasion it was smoko and he had been sitting in the truck.
He simply got out of the truck to walk across the yard and as he did so he developed a sudden back pain with pain extending down his legs. In fact, he had complete weakness down the legs.
He struggled to the person holding the stop/go sign, was taken eventually to see a doctor and he has had some physiotherapy since then.”
Dr Bornstein said in his report, in the section setting out his opinion:
“3. The injuries to this gentleman’s back were not as a consequence of employment.
Employment was not a substantial contributing factor. The patient was only at work at the time that it happened. There is no predisposing stressful cause.
The patient had gone for smoko in his truck and at the end of smoko had simply got out of the truck and was walking to a place of employment when he suddenly developed pain which caused him to collapse.
In my view this does not constitute a substantial contribution from employment and there is nothing to suggest that there was anything immediately preceding this that would have precipitated the symptoms.”
As well as these reports, the Arbitrator had oral evidence from the worker. The worker’s application for determination of the disputed claim should have had a statement attached. It appears that it did not, and that the Arbitrator permitted the worker to give oral evidence. Due to a defect in the recording equipment a transcript of the oral evidence was not available, and that is a matter which featured strongly in the employer’s submissions in this appeal.
In the Arbitrator’s reasons he said, as an apparent reflection of the worker’s evidence, “On 23 August 2002 he was walking through a car park and felt a ‘shuddering’ feeling through his back.” At a later point the Arbitrator recorded that the worker “denied that he was doing anything else other than walking along in the car park normally.”
In making his findings the Arbitrator also said, in a passage which I will later set out, that the worker confirmed having done some light work prior to the incident and having performed his morning duties, the morning being the morning of 23 August 2002.
Common to all the histories was that the worker’s back condition came upon him in a smoko break. On one of the histories, that taken by Dr Khan, he had been sitting around. On another, that of Dr Collins, he had earlier on been shovelling some dirt and tar. The history taken by Dr Palan was somewhere in between, in that the worker had been performing his morning duties, which presumably involved manual labour, but was then sitting in the truck when it was raining. The remaining histories were not specific as to the worker’s immediately preceding activity but, as I have said, the Arbitrator recorded that the worker confirmed the histories taken by Drs Collins and Palan in his evidence.
There were a range of opinions as to injury and contribution by the worker’s employment. Dr Khan thought that there was no injury, although he may have meant that there was no precipitating event. Dr Bornstein seems to have accepted that there was injury but thought that there was no contribution by the worker’s employment because there was no precipitating event. As I understand Dr Hollingsworth’s reference to no specific injury, his opinion was to the same effect, and probably Dr Palan’s was also. Dr Collins referred to what occurred on 23 August 2002 as an incident, but appears to have focused more on what he referred to as the nature and conditions of the worker’s employment as the occasion for his back condition.
The Arbitrator noted the competing submissions at some length. In the course of doing so he recorded that the worker’s solicitor submitted that the nature and conditions of the work that the worker carried out was the cause of his back injury, and the Arbitrator commented that this was a different contention than that contained in the application for determination of the dispute, which he described as referring to two frank injuries, that of 15 July 2002 and that of 23 August 2002. The Arbitrator said that the employer contended that the worker was not entitled to raise nature and conditions of employment. He otherwise recorded submissions going to whether the worker had sustained an injury at work and whether the work was a substantially contributing factor to the injury.
The Arbitrator found -
“On balance I think the applicant’s employment was a substantial contributing factor to his injury. He gives the history both to Dr Collins of having done some light work prior to the incident and to Dr Palan of having performed his morning duties at Tuggerah and confirmed this when giving evidence and when questioned on that point by me. Dr Bornstein does not refer to it at all but his history is cursory at best. The work appeared to be light but it appears to have been work that nevertheless could have precipitated the objective symptoms referred to in the X-ray report of 9 September 2002.”
In the summary at the conclusion of his reasons, the Arbitrator said -
“In summary the resolution of the issues in dispute is as follows:

On 23 August 2002, the applicant received an injury to his back arising out of or in the course of his employment as a labourer with the respondent.
The applicant’s employment was a substantial contributing factor to his injury.
… ”.

Going then to the appeal heard by the Deputy President, she recorded that most of the grounds of appeal had been withdrawn and that the employer contended that the Arbitrator erred in two respects. The first was that the Arbitrator had misdirected himself as to the issues in dispute and had wrongly found that injury was not in dispute, and had therefore failed properly to determine the injury that was a basis for an award of compensation. The Deputy President referred to this as “the Injury Error”. The second was that the Arbitrator had erred in denying the employer procedural fairness in not giving notice of the case against it in relation to the nature and conditions of employment. This the Deputy President referred to as “the Procedural Fairness Error”.
The Deputy President also noted that the employer complained about the lack of transcript of the arbitration, asserting that it had been prejudiced by reason of the lack of a transcript because of the failure of the Arbitrator to identify the injury upon which he made the award and the evidence to support a finding of injury. However, the Deputy President said that she had two so-called supplementary statements filed by the worker, and that while the statements were brief, they clearly attested to the date, nature, and alleged cause of the injury, and she said, “Taking into account the particular grounds of appeal, the Arbitrator’s written reasons and the documentary evidence that is before me, I am satisfied that I can proceed to review the Arbitrator’s decision.”
The reference to the supplementary statements was a little obscure. The Arbitrator had set out the documentary material before him. It did not include a reference to supplementary statements. In submissions before the Deputy President there was read to her, apparently from one of the supplementary statements, an account given by the worker in the terms, “My accident happened on or about 23 August 2002. The accident I suffered, I injured my back shovelling the fill in potholes.”
Before us it was acknowledged that this material was properly before the Deputy President, whether or not it had been before the Arbitrator. It was suggested that the account given by the worker differed from the histories to which I have earlier referred, in that the worker asserted that he injured his back while shovelling to fill in potholes. I do not read it that way. It is to my mind consistent with the histories to the effect that the worker had been shovelling to fill in potholes but the back condition came upon him during the smoko as he walked across the car park.
As to the Injury Error, the Deputy President considered that the Arbitrator did make the findings as to injury required by s 4 and s 9A of the Act, being the injury which occurred to the worker’s back on 23 August 2002. She concluded her consideration of this matter -
“While the Arbitrator did not clearly discuss the evidence in terms of his finding as to injury, the reasons for so finding are evident from reading his decision. When read as a whole, it is evident that the injury upon which the Arbitrator made his determination is the injury to Mr Paterson’s back which occurred on 23 August 2002.”
As to the Procedural Fairness Error, the Deputy President considered that procedural fairness did not require the pleading of a nature and conditions claim as distinct from a frank injury claim, but only that the employer was aware of the facts of the case and the claim it had to meet and had a reasonable opportunity to meet that case. She said that in any event the submission that the employer had been disadvantaged by a late nature and conditions submission was misconceived, saying -
“While the Arbitrator notes that the respondent’s worker’s legal representative submitted, at a late stage of the proceedings, that the injury could be understood as both a ‘frank’ injury and a ‘nature and conditions’ claim, this does not appear to be the basis upon which the Arbitrator determined the matter. The Arbitrator found that a ‘frank injury’ to the worker’s back occurred on 23 August 2002. I do not accept that the appellant employer was, in fact, disadvantaged by the late submissions as to the basis upon which the worker sought to argue the claim.”
Against this background, the three errors in point of law on which the employer relied were:
(1)that the Deputy President erred in saying that there had been a finding of injury and misstated what the finding had been;
(2)that the Deputy President erred in that she conducted her review without the transcript of the oral evidence given by the worker before the Arbitrator; and
(3)that the Deputy President erred in finding that there was a reasonable amendment in permitting a nature and conditions claim to be prosecuted.
These asserted errors were to some extent related. The error in conducting a review when the transcript was unavailable was said to have underpinned the Deputy President’s erroneous view of the finding of injury, because it could not be seen what the finding was without an understanding of the evidence given by the worker. Similarly, I think it was implicit in the submissions put to us that the same error of law in conducting a review without the transcript was material to the so-called question of amendment, because the significance of the amendment could not properly be ascertained without regard to the worker’s oral evidence.
I do not think that there was a misstatement by the Deputy President as to the Arbitrator’s finding of injury, or any erroneous view on her part as to the so-called question of amendment.
Both those matters were complicated by the distinction between a frank injury and a condition arising from the nature and conditions of work. The distinction is not uncommonly found in the language used in this area of the law, but it is imprecise and it is not a distinction found in the WC Act. In general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury. If there is an injury, whether the result of a particular incident or the result of cumulative activity, then provided it is work related s 4 of the WC Act is satisfied and the next question is that thrown up by s 9A, whether the worker’s employment was a substantial contributing factor to the injury. The descriptive distinction does not dictate an answer to either of those issues.

In the present case, it was plainly open to find that the worker had an injury, a back condition which came upon him on 23 August 2002. If the evidence had been that he felt the shattering pain as he shovelled dirt and tar, no doubt it would have been described as a frank injury. That was not the evidence, but there was also a frank injury in one sense of the language in that, on the evidence, the condition came upon the worker suddenly, albeit while he was walking across the car park on his smoko. Why the back condition came upon the worker on 23 August 2002 was, of course, important, but it went to whether the injury was work-related and whether the worker’s employment was a contributing factor to the injury.
The Arbitrator did not find that the worker suffered a frank injury. He found that the worker suffered an injury on 23 August 2002, an injury precipitated by the work performed by the worker prior to the incident and for that purpose, obviously enough, accepting the histories given to Dr Collins and Dr Palan.
When the Deputy President said that the Arbitrator found that there was a frank injury, she was in my view saying no more than that the Arbitrator found that there was an injury suffered on 23 August 2002, within one understanding of the description of a frank injury. That was quite correct. The Arbitrator did so find.
There was really no question of amendment in relation to a nature and conditions claim. The employer was well on notice of the worker’s accounts that he suffered his back pain while walking across the car park on his smoko. It had notice through the report of Dr Collins that there was a question of giving suffering of back pain the description of a nature and conditions claim, and it had full opportunity to meet the claim, as was apparent from the various medical reports. For the reasons I have given, I do not think that the claim changed before the Deputy President with the reference to a supplementary statement. In any event, the Arbitrator’s finding was not an acceptance of a nature and conditions claim in the sense of an incremental generation of symptoms without a particular incident. The Arbitrator accepted a link between the particular activities of the morning of 23 August 2002 and the back condition which came upon the worker. In my opinion, there was no error on the part of the Deputy President so far as any question of so-called amendment arose.
That leaves what was perhaps the central point in the employer’s submissions. The employer said, and accepted, that the Deputy President had a discretion whether or not to proceed with the review in the absence of the transcript of the worker’s evidence. It submitted that the Deputy President erred in the exercise of her discretion, because of the importance to the questions of injury and substantial contributing factor of the oral evidence given by the worker. It said that the medical reports had differences in the histories taken, in particular that one report said that the worker had not worked and that other reports were not specific as to the temporal relationship between any work performed and the onset of the back pain. In those circumstances, it said, and particularly in light of the supplementary statement, the Deputy President should not have proceeded with the review without the transcript, whereby she could see precisely what the worker had said in his oral evidence rather than act upon the summations found in the Arbitrator’s reasons.
Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary. Sometimes the lack of transcript can be accommodated by evidence as to what was said, which may have been possible in the present case: it was not suggested to the Deputy President that it was not. I will assume, without deciding, that the Deputy President had a discretion, but if so it comes down to whether the Deputy President considered that she could properly carry out her task in the absence of the transcript. She considered that she could, and I do not think that it has been shown that her view was not open to her, or that it would work such an injustice on the employer that the only proper exercise of discretion could have been to send the matter back for a fresh arbitration. I am not persuaded that any error in the exercise of the assumed discretion has been shown.
For these reasons, I do not think that any error in point of law has been made out. In my opinion, the appeal should be dismissed with costs.
HODGSON JA: I agree.
BROWNIE AJA: I agree.

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LAST UPDATED: 27/11/2007