Young v Labourpower Recruitment Services Pty Ltd
[2016] NSWWCCPD 37
•29 July 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37 | |
| APPELLANT: | William Young | |
| RESPONDENT: | Labourpower Recruitment Services Pty Ltd | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-6920/15 | |
| ARBITRATOR: | Ms A Britton | |
| DATE OF ARBITRATOR’S DECISION: | 30 March 2016 | |
| DATE OF APPEAL DECISION: | 29 July 2016 | |
| SUBJECT MATTER OF DECISION: | Forensic medical reports; application of cl 49 of the Workers Compensation Regulation 2010; adequacy of reasons; assessment of expert evidence; application of principles in Paric v John Holland (Constructions) Pty Ltd[1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505; Hancock v East Coast Timber Products Pty Ltd[2011] NSWCA 11; 80 NSWLR 43 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Brydens Lawyers Pty Ltd |
| Respondent: | Kaden Boriss Legal & Business Strategists | |
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 30 March 2016 is revoked and the matter remitted to another Arbitrator for re-determination. | |
INTRODUCTION
This appeal concerns an Arbitrator’s finding that the effects of an accepted work injury ceased after 13 weeks and the adequacy of her reasons for so finding.
The appeal also concerns whether the Arbitrator erred by taking into consideration evidence that had been excluded as being in breach of cl 49 of the Workers Compensation Regulation 2010 (the 2010 Regulation).
For the reasons explained below the appeal is successful.
BACKGROUND
The appellant worker, William Young, worked for the respondent employer, Labourpower Recruitment Services Pty Ltd, as a machine operator. The respondent was a labour hire firm which hired out the appellant’s employment to a host employer, NSW Investments Pty Ltd. His duties included the operation of bulldozers.
The appellant alleges that he was injured on 18 October 2013 while attempting to climb on to a bulldozer. The handle he had grasped broke free causing him to fall from the bulldozer and injure his back. He has not worked since that date.
On 28 October 2013, the appellant lodged a workers injury claim form in respect of the incident of 18 October 2013 which he claims resulted in a L4/L5 disc displacement.
On 22 November 2013, the respondent’s insurer, QBE advised the appellant that it had accepted liability for the claim for injury on 18 October 2013. However, on 13 December 2013, QBE advised the appellant that his worker’s compensation claim had been closed.
In late November 2013, the appellant was incarcerated for approximately seven months due to driving related charges.
On 3 November 2014, QBE issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for the claim. It declined liability on the basis that it claimed that the injury had resolved and as the appellant did not continue to suffer from the effects of any injury, ongoing treatment was no longer reasonably necessary. It also disputed that the appellant’s employment was a substantial contributing factor to the injury and that the alleged injury caused any incapacity for work.
On 9 December 2015, the appellant lodged with the Commission an Application to Resolve a Dispute (the Application). He claimed weekly benefits, medical expenses and lump sum compensation as a result of the injury to the lumbar spine on 18 October 2013. In the alternative, the injury was claimed to consist in the aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 16 of the Workers Compensation Act 1987 (the 1987 Act).
On 22 December 2015, the respondent lodged with the Commission a Reply to the Application, disputing liability for the reasons identified in the s 74 notice.
The matter came before a Commission Arbitrator for Conciliation/Arbitration proceedings on two occasions, on 2 February and 2 March 2016 respectively, during which both parties were represented by counsel. Following these proceedings the Arbitrator reserved her decision.
On 30 March 2016, the Arbitrator issued a Certificate of Determination in favour of the appellant. The Certificate of Determination is in the following terms:
“The Commission determines:
1. Leave is granted to the Applicant to discontinue his claim for compensation under s 66 of the Workers Compensation Act 1987 (NSW).
2. The Respondent is to pay the applicant weekly compensation under s 36 of the Workers Compensation Act 1987 (NSW) in the sum of $1,235, for the period 18 October 2013 to 17 January 2014. The Respondent is to have a credit for any payments already made.
3. The Respondent is to pay any s 60 expenses incurred on or before 17 January 2014, upon production of receipts, accounts or Medicare notice of charge.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The appellant appeals the Arbitrator’s determination.
PRELIMINARY MATTERS
Description of the respondent
The respondent was wrongly sued as “Arthur Tzaneros Trust and Luke Labour Power Recruitment Services”. The respondent sought leave to amend the pleadings to correct the record to describe the respondent as “Labourpower Recruitment Services Pty Ltd”. The appellant does not oppose the application. I therefore order that the record be corrected to describe the respondent as “Labourpower Recruitment Services Pty Ltd”.
Threshold
There is no issue that the threshold requirements of s 352(3) and (4) of the 1998 Act are satisfied. Therefore there is no impediment to the appeal proceeding.
On the papers
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
Clause 49 of the Workers Compensation Regulation 2010
Clause 49 of the 2010 Regulation provides:
“(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.”
The Reply filed by the respondent relied on forensic medical reports of Professor Ehrlich and Dr Stephen Rimmer, both of whom are orthopaedic surgeons. At the outset of the proceedings before the Arbitrator the potential breach of cl 49 was identified. The Arbitrator called upon the respondent to elect which of the two forensic medical experts would be relied upon. The respondent elected to rely on the evidence of Dr Rimmer. However, the respondent also sought and was granted leave (over objection) to rely upon the report of Professor Ehrlich only in so far as it related to the history he obtained.
LAY EVIDENCE
The appellant
The appellant provided two statements of evidence, dated 16 April 2015 and 8 November 2015 respectively. In both statements, the appellant states that on 18 October 2013 he was climbing onto the left hand side of a bulldozer to get into the vehicle when the handle broke causing him to fall two metres backwards into a heap of garbage. As a result he claims that he sustained an injury to his lumbar spine.
Due to the pain he was experiencing, the appellant attended Nepean Hospital where he was admitted for approximately four days. He states that he underwent some conservative treatment for one month but did not experience any real improvement of his symptoms. He claims that he continues to experience immense pain in his lower back radiating down his right lower extremity, in particular his right knee and ankle region. He has not worked since the date of his injury due to his ongoing symptoms.
The appellant claims that he was incarcerated for driving related charges in November 2013 for a period of seven months because he was unable to perform community service work due to his back injury. He was released on 17 June 2014.
The appellant claims that one week “after incarceration the workers compensation insurer ceased payments of weekly benefits”. However for a brief period the insurer paid some treatment expenses.
In his initial statement, the appellant states that he had “never previously sustained an injury to [his] lower back prior to the work incident on 18 October 2013”. However in his second statement, the appellant refers to a pre-injury incident which occurred in April 2013 when he experienced lower back pain which radiated down his right leg after moving his wheelchair bound son to bed. He was prescribed pain relief medication and underwent radiological investigations. Despite a moderate L4/5 disc bulge and pain he continued to work on a full time basis without any restrictions.
The appellant claims that since the incident on 18 October 2013 his back pain “has got drastically worse” and as a result he has been unable to work. He claims that he continues to suffer from various restrictions and disabilities including pain and discomfort in his lumbar spine, right lower extremity and right ankle, has intermittent numbness in his right lower extremity, experiences difficulty walking, and is unable to sit or stand for more than 30 minutes.
MEDICAL EVIDENCE
The appellant attended on his general practitioner, Dr Mark Dowsett, on 7 February 2013 and 27 February 2013 complaining of lower back pain.
On 21 February 2013, the appellant underwent a lumbosacral spine x-ray. In a report of the x-ray findings, dated the same, it was recorded that there is a large broad based posterior disc protrusion on the right side at L4/5 which is impinging upon the theca. There was no impingement upon the exiting nerve roots. It was also recorded that there was a small posterior disc bulge at L5/S1 which impinged upon the anteromedial aspect of the right S1 nerve root.
On 17 May 2013, the appellant underwent a CT scan of his lumbar spine which found a moderate disc bulge at L4/5, with possible impingement of the descending right L5 nerve root in the lateral recess.
The appellant’s lower back pain got progressively worse and on 20 May 2013, Dr Dowsett referred the appellant for a right sided L5 nerve root block which was performed under CT guidance on 22 May 2013. The nerve root block provided temporary relief.
On 22 July 2013, Dr Dowsett referred the appellant to Dr Charles New, orthopaedic and spinal surgeon, in respect of the lower back pain. In a report to Dr Dowsett, dated 12 August 2013, Dr New advised that he had no doubt that the appellant had an L4/5 disc protrusion for which he was going to organise an MRI. However, he added that he was “rather limited in treatment in that he has just recently had a stent and he is on Plavix” which prevents someone from having “nerve root sleeve blocks”.
In a report to Dr Dowsett on 13 August 2013, Dr Fitzpatrick, cardiologist, granted the appellant clearance to undergo the MRI requested by Dr New, and considered that the appellant would be “fit to undergo back surgery without the need for further mibi scans”.
On 16 August 2013, the appellant underwent an MRI of his lumbar spine. In a report by Dr Hayter, dated the same, the following comment was made:
“Disc degeneration at L4/5, with a broadbased disc bulge asymmetric to the right, causing mild central canal stenosis. There is moderate right lateral recess stenosis with the disc bulge impinging upon the descending right L5 nerve root in the lateral recess.”
On 28 September 2013, the appellant underwent an MRI scan of the lumbosacral spine. In a report, dated 29 September 2013, it was recorded that there had been a “minor morphological change in the appearance of the L4/5 disc which now shows slightly more focal right paracentral disc protrusion as compared to the diffuse bulge seen on the previous MRI of October 2013”. It was also noted that there appeared to be mild compression to the right-sided exiting L4 nerve root.
On 18 October 2013, the appellant was admitted to the Nepean Hospital where he underwent a CT scan of the lumbosacral spine following the incident at work. A report, dated the same, found a “minimal intervertebral disc-space narrowing at L1/2 and L3-5. At L4/5 there was evidence of a broad-based disc protrusion causing moderate canal stenosis”.
On 21 October 2013, the appellant underwent a further MRI of the spine. A report of the MRI, dated 30 October 2013, recorded that there were “degenerative changes at L4-5, without definite nerve root impingement”.
On 24 October 2013, the appellant attended on Dr Dowsett complaining of continued back pain which was not improving.
The appellant was incarcerated from 20 November 2013 until 17 June 2014, during which time he received treatment for his injury.
On 17 June 2014, the appellant attended on Dr Dowsett. Dr Dowsett recorded that he had ongoing back pain that was not too bad unless he sat for a prolonged period. He had a chronic ache in his right leg. Dr Dowsett certified the appellant as having no current work capacity from this date. The appellant attended on Dr Dowsett again on 17 July 2014 and 15 August 2014, during which he complained that his pain remained unchanged.
In a report to the appellant’s solicitors dated 4 April 2015, Dr Dowsett describes the appellant suffering an “episode of shakes, sweats, some disorientation, numbness and paraesthesia in the right leg” on 23 September 2014 for which he attended Nepean Hospital Emergency Department for assessment. The hospital records record that the appellant had reduced light touch and pin prick sensation in the right lower leg.
On 8 October 2014, the appellant attended on Dr Stephen Rimmer, orthopaedic surgeon qualified by QBE. In his report, dated 8 October 2014, Dr Rimmer recorded a history of the incident of 18 October 2013. He noted that the appellant had fallen from a bulldozer backwards landing on his lumbar spine, following which he was admitted to Nepean Hospital for four days. He also records that there is no previous history of injury to the lumbar spine.
Dr Rimmer records that the appellant is currently using a walking stick and taking medication for his back pain. He also records that the appellant described “losing feeling” in his right leg to ankle level and constant click and spasm like pain in his right lumbar region. In response to a question concerning whether the effects of any aggravation of a pre-existing or underlying condition had ceased, Dr Rimmer said:
“Initially yes, however given the period of time that has elapsed, i.e. twelve months, on the balance of probabilities one would have expected this to have ceased.”
He added that initially employment was a substantial contributing factor but given the period of time that had elapsed “this has ceased to be”. In a supplementary report dated 17 October 2014, Dr Rimmer confirmed his view that the effects of the aggravation due to the injury on any pre-existing condition has ceased by October 2014.
In a report dated 17 November 2014, Dr Davidson, neurosurgeon, recorded that the MRI dated 28 September 2014 shows a partial healing of the previously seen annulus rupture at L4/5 on the right side with a slightly smaller disc bulge compared to the MRI from the year last. He recorded that radiographically there is some improvement and concluded that at present “there is no surgical intervention that could improve his prognosis”. Following this the appellant underwent two right L4/5 epidural injections, one after 28 September 2014 and the other on 4 February 2015.
In Dr Dowsett’s report of 4 April 2015, he records that prior to the injury on 18 October 2013 he had seen the appellant for lower back pain radiating to the right leg from 7 April 2013. He added that there was “no doubt that [the appellant] had an L4/5 disc protrusion prior to 18/10/13 but he was able to undertake full time work. Since the injury to his back and leg pain have been much worse and he has been unable to work”. He is “not fit for any work”. He added that “[n]ot all of [the appellant’s] pain can be attributed to the injury of 18/10/13 but the injury greatly exacerbated his pain and precluded him from working”.
On 22 April 2015, the appellant attended on Dr Assem, rehabilitation specialist qualified by the appellant’s legal representatives. In a report dated 22 April 2015, Dr Assem recorded a history that the appellant had “sustained a soft tissue injury to his lower back in around February 2013 while operating a front end loader; the hydraulics gave way, causing the machine to tip on its side”. He also recorded a history that the appellant experienced pain in his lower back when he picked up his son but noted that the pain resolved shortly after and an x-ray of the lumbar spine on 21 February 2013 was normal. He “was capable of performing his pre-injury duties at his pre-injury hours without difficulty”.
Dr Assem records a history of the incident of 18 October 2013, consistent with the appellant’s statements. He records that the appellant “was able [sic] to return to work after the injury. He was also unable to complete community services due to driving infringements. In late November 2013, he was incarcerated for approximately seven months” during which time he required “analgesia on a regular basis”.
In response to the following statement “[i]njuries as observed by you and any disabilities consequential upon the injuries or treatment including the likely duration of any disability”, Dr Assem recorded:
“Unfortunately, he continues to have constant discomfort in his lower back with neurological symptoms in his right leg corresponding with the L4/5, S1 dermatome distribution. He has been unable to work since the injury and has difficulty performing his usual domestic activities of daily living.”
Dr Assem found that the appellant’s condition had reached maximum medical improvement. He found the appellant’s condition to have been stable for the last three months and his condition unlikely to change by more than three per cent in 12 months regardless of treatment. He added that, given the appellant’s ongoing complaints, pathology identified, age and lack of transferrable skills “it will be difficult for [the appellant] to secure suitable employment in a position that he is reasonably qualified to perform”.
Dr Assem further found the appellant’s future prognosis to be guarded. He recorded that the appellant will “most likely continue to have chronic low back discomfort with right L5 radiculopathy that will continue to interfere with his usual activities of daily living”.
GROUNDS OF APPEAL
The appellant alleged that the Arbitrator erred in:
(a) her application of the principles of commonsense causation to the question of incapacity;
(b) her assessment of the pre-injury and post-injury medical evidence;
(c) finding there was insufficient evidence to satisfy the requisite standard that incapacity did not extend beyond 13 weeks;
(d) finding the hospital and medical expenses pursuant to s 60 cease to be payable upon the date upon which weekly compensation was awarded to, and
(e) considering the opinion of Professor Ehrlich when such opinion had been excluded from the evidence by reason of the operation of cl 49 of the 2010 Regulation.
THE ARBITRATOR’S REASONS
The Arbitrator commenced her analysis by examining the evidence in relation to whether the appellant was injured in the circumstances alleged. She stated that the appellant’s failure to disclose his pre-existing back condition to a number of medical practitioners and the lack of any corroborative evidence in relation to the incident called for her to scrutinise any contemporaneous material.
The Arbitrator noted the appellant’s account of having climbed onto the left side of the bulldozer whereupon a handle broke causing him to fall backwards about two metres into a heap of garbage on the ground. He presented to the accident and emergency department of Nepean Hospital at about 1.00 pm the same day. Dr Davidson, who saw the appellant in the emergency department, reported to his general practitioner, Dr Dowsett, that the appellant reported injury following a 3–4 m fall at work. A claim form submitted on 28 October 2013 provided a consistent history.
In the eight months before the injury the appellant had reported significant lower back and right leg pain. The Arbitrator set out a convenient chronology of the appellant’s complaints in the following table:
7/2/13
Consulted Dr Dowsett who recorded ‘sore lower back-R side; taking Voltaren for pain relief; no past back problems’
27/2/13 Returned to see Dr Dowsett ‘Back still painful, radiating …’ 20/5/13 Referred by Dr Dowsett for L5 nerve root block 14/5/13 Presented to Emergency Dept. at Nepean Hospital reporting back pain from fall five days earlier. Described pain as ‘progressively worsening constant, sharp, right sided lumber spine … pins and needles. Reported being unable to go work for last 3 weeks secondary to pain’. 22/5/13 Underwent nerve block at L5 level. Rated the pain before this treatment as 8/10. 31/5/13 Presented to Emergency Dept. at Nepean Hospital with chronic low back pain with disc prolapse. Diagnosed with lumbar spine prolapse with nerve root compression. 22/7/13 Was referred by Dr Dowsett to neurosurgeon, Charles New, in relation to ‘six month history of lower back pain right leg … began with repeated lifting of his step son following a fall … referred for L5 facet nerve root block which provided relief for three weeks’. 8/8/13 Reviewed by neurosurgeon Charles New, who wrote there is ‘no doubt’ [the appellant] has an ‘L4/5 disc’ 13/8/13 Is cleared by cardiologist, Associate Professor Fitzpatrick to have an MRI. Fitzpatrick writes: [the appellant] ‘would be fit for back surgery’.
Documents produced in answer to a direction to Dr New included a document entitled “pain disability assessment form” apparently completed by the appellant on 8 August 2013. That document records the appellant claiming that he had been suffering from back and leg pain for about eight months, describing his condition to include “pins and needles” and claiming that the pain was present and constantly made worse in recent times. He stated that he had been receiving physiotherapy, acupuncture injections and that medication provided little relief. He described being unable to lift anything but the lightest of weights with limitations in walking and sitting for extended periods.
The appellant reported “no previous history of injury” when assessed by Associate Professor Ehrlich and Dr Rimmer. The Arbitrator noted that the appellant had been assessed by Dr Assem at the request of his solicitors. Dr Assem recorded that the appellant told him that he had suffered a “soft tissue injury” in February 2013 involving his lower back which he said was sustained when he was operating a front end loader in which the hydraulics failed causing the machine to tip on its side.
The appellant proffered no explanation for failing to disclose his pre‑injury history. The Arbitrator found that it was implausible that he simply forgot to mention his pre‑existing back problems. She concluded that his failure to do so was due to an apprehension that the disclosure of such information might jeopardise any entitlement to compensation. Due to his lack of candour, the Arbitrator concluded that the weight to be given to his evidence was diminished and pointed to a need to exercise caution in evaluating his evidence particularly when it was not supported by independent evidence.
However, despite the appellant’s lack of candour, the Arbitrator was satisfied that he was injured in the circumstances alleged when he fell from the bulldozer on 18 October 2013.
The Arbitrator noted the appellant’s evidence, in that, after the subject accident he said that his pain got drastically worse. He also said he had pain on and off after injuring his back in April 2013 while moving his son out of a wheelchair. She noted that the appellant claimed to have experienced pain in his lumbar spine, right leg and right ankle and had difficulty controlling his right leg and claimed to be unable to sit or stand for long periods, avoiding putting weight on his leg.
A month after the injury the appellant commenced a seven month custodial sentence which he served between 20 November 2013 and 17 June 2014. He sought treatment for his condition whilst in custody.
The Arbitrator assessed the extent of the medical evidence in relation to causation and incapacity which is set out earlier in this decision and which I shall not repeat except to highlight certain evidence on which she relied.
The Arbitrator clearly relied on the opinion of Professor Ehrlich. She referred to Professor Ehrlich’s opinion that the appellant suffered a “strain” superimposed on a pre-existing condition and his conclusion as at November 2013, that the appellant was unfit “for the time being.”
The Arbitrator concluded that the appellant had been at least partially incapacitated as a result of the injury. She observed that the New South Wales Probation and Parole Service assessed the appellant to be unfit for a community service order. The Arbitrator inferred that the appellant was aware that his fitness for work would be a factor taken into account by the sentencing magistrate in deciding whether or not to enter a custodial sentence. She concluded that it would be improbable that the appellant exaggerated the extent of his disability.
The Arbitrator found (at [51]) that the assessment by New South Wales Probation and Parole was consistent with the opinion of Professor Ehrlich, who concluded that the appellant was unfit for work “at least for the time being” when Professor Ehrlich assessed the appellant on 12 November 2013. She then concluded that the appellant’s account to Dr Assem of being able to work without difficulty could not be accepted. The Arbitrator found that dramatic spikes in the appellant’s symptoms were a complicating factor. She concluded that there was no material difference in the symptoms recorded by Dr Rimmer in 2014 and Dr Assem in 2015 and that given to Dr New in September 2013, given the medical history in the months leading up the accident including the fact that the appellant had been referred to a surgeon. She rejected the proposition that there had been any material improvement in his condition prior to the injury.
The Arbitrator concluded (at [56]) that it was more probable than not that the injury was a material cause of the appellant’s incapacity for a period of three months.She concluded that, whilst possible, she was not not satisfied to the requisite standard that it did or that the injury continued to be a material cause of any incapacity after a few months.
SUBMISSIONS AND DISCUSSION
Consideration of excluded evidence
Submissions
The appellant submits that the Arbitrator erred by relying on Professor Ehrlich’s opinion on the critical question of incapacity.
The Arbitrator’s reasoning under the heading “Medical opinion on capacity and causation” stated (at [34]):
“Shortly after the subject injury, at the request of the Insurer, [the appellant] was assessed by Professor Ehrlich. In a report dated 12 November 2013 Professor Ehrlich wrote that [the appellant] sustained a ‘strain of his back superimposed on pre-existing degenerative change’. In his opinion [the appellant] was unfit for his pre-injury employment ‘for the time being’ but should be capable of working in a job not requiring frequent stopping, heavy lifting or being jolted about in a machine.”
Under the heading “Did incapacity result from the injury?” the Arbitrator noted (at [49]):
“The weight of evidence is that since the subject injury [the appellant] has been at least partially incapacitated for work.”
The Arbitrator also noted (at [51]):
“Notably the assessment made by NSW Probation and Parole is consistent with the opinion of Professor Ehrlich who concluded that [the appellant] was unfit for work ‘at least for the time being’ when he assessed him on 12 November 2013.”
The appellant submits that the medical opinion of Professor Ehrlich was considered by the Arbitrator in circumstances where Professor Ehrlich’s opinion was not relied upon by the respondent and had been excluded from admission into evidence. The appellant further submits that the opinion evidence of Professor Ehrlich influenced the Arbitrator’s assessment in relation to the weight of the evidence dealing with questions of causation and incapacity.
The respondent does not deny that, in contravention of her own order, the Arbitrator considered and placed weight on Dr Ehrlich’s opinion. It submits, however, that the “driving force” behind the Arbitrator’s determination was her view of the appellant’s untruthfulness and lack of candour in relation to his reported symptoms.
Further, the respondent submits that the opinions of Professor Ehrlich, Dr Rimmer and Dr Dowsett “were of limited utility to the Arbitrator” because they were based on either inaccurate or incomplete histories.
Moreover, the appellant submits that Professor Ehrlich’s opinion was given in November 2013, that is, at a time during which the Arbitrator was prepared to accept the appellant’s claim in terms of incapacity being related to the alleged injury. The appellant submits that “whatever opinion Professor Ehrlich expressed at that time, therefore, would not make any difference to the ultimate outcome.”
Discussion
I do not accept the respondent’s submissions. In Hunter New England Local Health District v Pond [2016] NSWWCCPD 28 I held, in similar circumstances, that it was an error for an Arbitrator to rely on material that has been excluded from consideration because of a potential breach of cl 49.
The Arbitrator clearly accepted Dr Ehrlich’s opinion that the appellant suffered a strain superimposed upon pre-existing degenerative changes and that he was likely to be incapacitated “at least for the time being”. That was an opinion expressed on 12 November 2013. That evidence would be consistent with the Arbitrator’s finding that incapacity as a result of the accepted injury ceased after three months.
The Arbitrator did not give reasons for her conclusion that incapacity ceased after only three months. She stated that her conclusions were based on her assessment of the weight of the evidence which clearly included the opinions expressed by Dr Ehrlich. The Arbitrator’s reliance on Dr Ehrlich’s evidence was a clear error.
For reasons I shall come to shortly I am not satisfied that the Arbitrator would have reached the same conclusion in the absence of Dr Ehrlich’s opinion. Except for Dr Ehrlich’s evidence there was a substantial body of evidence which would have supported a finding of continuing incapacity, including Dr Dowsett and Dr Assem. It follows that this ground of appeal must be upheld. This finding is sufficient to dispose of the appeal however I would add the following findings in relation to some of the remaining grounds.
Did the Arbitrator err in finding that there was insufficient evidence of incapacity extending beyond 17 January 2014/adequacy of reasons
Submissions
The appellant submits that the Arbitrator provided no explanation for finding that incapacity arising from the accepted work injury ceased after 13 weeks. He submits that Dr Rimmer, in his report of 8 October 2014, assessed that any incapacity for work should have resolved by the time he saw the appellant that is he concluded on the balance of probabilities that any incapacity referable to the accepted work injury would have ceased within the preceding 12 months.
Further it is submitted that Dr Assem in his report of 22 April 2015 opined that the appellant continued to suffer symptoms as a result of the workplace injury and continued to be incapacitated for work. Dr Dowsett, in his report of 4 April 2015, stated that the appellant was unfit for work and provided a medical certificate certifying no current capacity for work.
The appellant submits that, with the exception of Professor Ehrlich (whose opinion evidence was excluded), “all of the evidence” shows that the worker was unfit for a period of at least 12 months post injury. Accordingly, it is submitted that the Arbitrator erred in finding that incapacity lasted for only a few months.
The respondent submits that the Arbitrator’s task in assessing the extent of incapacity resulting from the work injury was made more difficult by the appellant’s untruthfulness and lack of candour. It submits that the Arbitrator had no reliable guidance from independent medical experts because their respective opinions were based on a flawed history. The respondent submitted that the Arbitrator was not assisted by Dr Dowsett’s evidence, being the only practitioner to have the advantage of assessing the appellant both before and after the injury. That was because the Arbitrator did not accept that the appellant’s condition was improving as noted by Dr Dowsett in his clinical note on 24 October 2013.
The respondent submitted that the inaccurate and/or incomplete history provided to Dr Assem did not provide a fair climate for the acceptance of his opinion and rendered it “valueless.”
The respondent submits that the Arbitrator was effectively required to “reconstruct” the applicant’s case. Doing the best she could in the face of all the difficulties referred to, it was open to the Arbitrator to conclude that incapacity referable to the accepted work injury ceased after three months. It submits that the appellant bore the onus of establishing the extent of any incapacity arising from his injury. It further submits that there was a failure to discharge the onus of proof that the effects of the accepted work injury were ongoing.
Discussion
Section 294(2) of the 1998 Act provides:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 15.6 of the Workers Compensation Commission Rules 2011 provides:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
In NSW Police Force v Newby [2009] NSWWCCPD 75 I considered the nature of an Arbitrator’s duty to give reasons at [149]–[151]. At [149] I said:
“149. To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247).”
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443–444).
After concluding that the appellant sustained an injury in compensable circumstances and was incapacitated as a result thereof, the critical finding on the extent of the incapacity is found (at [56]) where the Arbitrator stated:
“I am satisfied that in the three months after the injury there was a material and persistent worsening of [the appellant’s] symptoms. While not the only contributing factor, I find it more probable than not that the injury was a material cause of [the appellant’s] incapacity during the period. It may be as claimed that a material and persistent worsening of [the appellant’s] condition continued after a few months. While possible, on the available [evidence] I am not satisfied to the requisite standard that it did or that the injury continued to be a material cause of any incapacity after a few months.”
The Arbitrator’s reasons failed to disclose any analysis or explanation for the finding that the aggravating effects of the injury ceased after three months. Having regard to the above authorities, I am persuaded that the appellant’s submissions should be accepted for the following reasons.
The extent of an Arbitrator’s duty to engage with the evidence depends on the circumstances of each case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). However, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other” (Archibald v Byron Shire Council[2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed), quoted with approval by McColl JA in Hume v Walton[2005] NSWCA 148 at [69]). The Arbitrator did not do that.
The Arbitrator reasoned that Dr Dowsett’s evidence supported a finding of incapacity “at least for a period after the injury” ([51]). That statement does not fairly summarise Dr Dowsett’s view. Dr Dowsett said that since the injury the appellant’s back and leg pain was much worse and he had been unable to work. He added that whilst not all of the appellant’s pain can be attributed to the injury of 18 October 2013, the injury greatly exacerbated his pain and precluded him from working. The Arbitrator clearly did not accept that evidence. However her reasons for so concluding are not explained. It is true that she did not accept the accuracy of a statement in Dr Dowsett’s notes to the effect that there had been improvement in the appellant’s condition prior to the injury, which in any event he appears to have corrected in his report of 4 April 2015. However that did not provide a foundation for rejecting his firmly held views regarding the appellant’s fitness for work.
The Arbitrator rejected Dr Assem’s assertion that the appellant had been working without difficulty prior to the injury ([52]). I infer that that was because Dr Assem did not have a history of the appellant taking three weeks off work on account of back problems in May 2013. However the Arbitrator’s analysis did not explain why she rejected Dr Assem’s opinion that the appellant was permanently unfit to work as a plant operator and was restricted to sedentary duties where he was not required to lift items of more than 5 or 10 kgs and would have difficulty sitting or standing for long periods. Dr Assem concluded that it would be difficult for the appellant to secure suitable employment in a position that he is reasonably qualified to perform by way of education, training or experience in a regular and reliable manner.
I do not accept the submission that the history relied upon by Dr Assem did not provide a fair climate for the acceptance of his opinion. In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, Beazley JA (as her Honour then was, Giles and Tobias JJA agreeing) said (at [85]):
“Rather, what is required for satisfactory compliance with the principles governing expert evidence is for [the expert’s report] to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”
Dr Assem’s report satisfied those requirements. His opinion regarding the question of incapacity arising from the injury was a considered opinion having regard to the history of significant symptomology in the appellant’s back prior to the injury, his clinical assessment and the pathology identified on radiological imaging.
If Dr Assem’s opinion was of no weight, the Arbitrator should have explained why. She did not do that. The absence of a history of a short period of incapacity five months prior to the injury when read with an otherwise accurate history provided a fair climate for the acceptance of Dr Assem’s opinion.
It follows that I reject the respondent’s submission that the Arbitrator was not provided with any reliable guidance from independent experts regarding the assessment of the appellant’s capacity for work arising from the injury as found.
With the exception of Professor Ehrlich (which was impermissibly relied upon) the weight of evidence was against the Arbitrator’s finding on the question of incapacity. I therefore reject the submission that the Arbitrator’s findings were open on the evidence.
For these reasons grounds four and five of the appeal are also upheld. It follows that the Arbitrator’s award must be revoked and the matter remitted to another Arbitrator to re-determine. It is therefore unnecessary to consider the remaining grounds of appeal.
DECISION
The Arbitrator’s determination of 30 March 2016 is revoked and the matter remitted to another Arbitrator for re-determination
Judge Keating
President
29 July 2016
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