Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters
[2010] NSWWCCPD 31
•30 March 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Yum Restaurants Australia Pty Ltd trading as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31 | ||||
| APPELLANT: | Yum Restaurants Australia Pty Ltd trading as Pizza Hut Restaurants | ||||
| RESPONDENT: | Susan Watters | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-6624/09 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 November 2009 | ||||
| DATE OF APPEAL DECISION: | 30 March 2010 | ||||
| SUBJECT MATTER OF DECISION: | Personal injury on a journey; disease; sections 4 and 10 of the Workers Compensation Act 1987; application of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | TurksLegal | |||
| Respondent: | Carroll & O’Dea | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 16 November 2009 is revoked and the following orders made: “1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of any whole person impairment of the worker’s lumbar spine as a result of personal injury received by the applicant worker to her low back on 17 March 2006. 2. The evidence to be forwarded to the Approved Medical Specialist includes the Application to Resolve a Dispute filed on 19 August 2009 and the Reply filed on 10 September 2009, but excluding Dr MacMahon’s report of 4 July 2006. 3. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.” | ||||
| The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | |||||
BACKGROUND
Ms Watters alleges that she injured her back, knees and ankles while walking up Bridge Street, Pymble, on her way home from work on 17 March 2006 (wrongly referred to as 20 March 2006 in several documents). Her claim was initially accepted, but denied by letter dated 13 September 2006.
By letter dated 30 November 2007, Ms Watters’ solicitors claimed lump sum compensation on her behalf in the sum of $35,000.00 in respect of a 23 per cent whole person impairment as a result of her alleged injuries on 17 March 2006. In a section 74 notice dated 30 January 2008, the appellant employer’s insurer, Allianz Australia Workers’ Compensation (NSW) Limited (‘Allianz’), disputed liability on the grounds that:
(a)Ms Watters did not sustain an injury on 20 March 2006 within the meaning of section 10 and 4 of the Workers Compensation Act 1987 (‘the 1987 Act’), and
(b)if Ms Watters did sustain an injury, that injury resulted from her medical or other condition and the journey did not cause or contribute to it within the meaning of section 10(1D) of the 1987 Act.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 20 August 2009, Ms Watters claimed lump sum compensation in respect of a 23 per cent whole person impairment as a result of injuries to her lumbar spine, both knees and both ankles on 17 March 2006. The Application included the following “injury description”:
“Applicant suffered a left sided lumbo-sacral disc protrusion as well as aggravation of lower lumbar sacral arthritis with residual low back pain and lumbar stiffness with radicular complaint with sensory changes in an L5/S1 distribution of both lower limbs.
Applicant also suffered aggravation of early arthritis in both knees, patello-femoral crepitus in the right knee and retro-patellar crepitus in the left knee.
In addition, the applicant suffered aggravation of early arthritic change in both ankles, mild restriction of left ankle joint and subtalar joint and stiffness of the right ankle and subtalar joint.”
The Application included the following description of how the injury occurred:
“In order to travel home from her place of employment at the Pizza Call Centre on Suakin Street, Pymble, the applicant had to walk up a hill along Bridge Street toward the Pymble Train Station at which point she felt a sharp stabbing pain in the middle of her lower back.”
The Commission listed the matter for conciliation and arbitration on Tuesday 3 November 2009. The parties each made lengthy submissions through their respective counsel, but called no oral evidence. The Arbitrator delivered a reserved decision on 16 November 2009 in which he found in favour of Ms Watters in respect of the injury to the back and ankles but against her in respect of the alleged injury to the knees. The Commission issued a Certificate of Determination on 16 November 2009 in the following terms:
“The Commission determines:
1.I direct the applicant to lodge the MRI scan and radiologist’s report
of 16 June 2006 with the Commission for referral to the AMS by 18 November.
2.I remit this matter to the Registrar for referral to an AMS on the
following bases:
i)Date of injury: 17 March 2006
ii)Matters for assessment: Lumbar spine, left lower extremity
(left ankle), right lower extremity (right ankle)
iii)Method of assessment: WPI
iv)Evidence:
· ARD plus attached documents,
· Reply plus attached documents,
· MRI scan of lumbar spine dated 16.6.06 (to be supplied in accordance with the above order).
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In an appeal filed on 10 December 2009, the appellant employer seeks leave to appeal the Arbitrator’s determination as far as it relates to the finding of injury to the lumbar spine and the lower extremities (the ankles). Ms Watters has not challenged the Arbitrator’s finding that she suffered no injury to her knees.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Interlocutory
Ms Watters has submitted that the Arbitrator’s determination is interlocutory because he has merely remitted the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’). This submission overlooks the fact that the Arbitrator made a final determination on the critical issue of injury and that determination is not a preliminary or interim order of an interlocutory nature (see Regulation 200B of the Workers CompensationRegulation 2003). There is a clear distinction between the present case and the decision of Moore v Greater Taree City Council [2009] NSWWCCPD 17. In that case, the employer conceded injury and the only dispute related to the effect of that injury in terms of the worker’s entitlement to lump sum compensation. In those circumstances, the Arbitrator’s determination was an interlocutory order. In the present case the employer disputed injury and now challenges the Arbitrator’s final determination on that issue.
I grant leave to appeal.
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 Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
PRELIMINARY MATTERS
In breach of clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’) the appellant employer relied on two forensic medical reports, one from Dr MacMahon dated 4 July 2006 and one from Dr Silva dated 24 January 2008. In a direction issued by me on 24 March 2010, I directed the appellant employer to advise which of those reports it intended rely on in the review.
By letter dated 25 March 2010, the appellant employer’s solicitor, Ms Wigan, advised that the she relied on the report by Dr Silva “for its expert opinion evidence in response to the applicant’s claim”. She added that she did not rely on any expert opinion evidence provided by Dr MacMahon and conceded, “that portion of the doctor’s report [was] inadmissible”.
Ms Wigan further submitted that the portion of the report by Dr MacMahon that set out the history provided by Ms Watters was admissible as evidence of the facts recorded. This submission ignores the clear terms of clause 43, which provides in subclause (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 admitted on behalf of a party to proceedings.”
The reports from Dr Silva and Dr MacMahon were reports from doctors who had not treated Ms Watters and were obtained for the purpose of “proving or disproving an entitlement, or the extent of any entitlement”. They are therefore both forensic medical reports, as defined in clause 43(4)(a) of the Regulation. Having elected to rely on Dr Silva’s report, Dr MacMahon’s report may not be admitted and it is therefore not open to the appellant employer to rely on any part of that report.
THE EVIDENCE
Ms Watters’ evidence is set out in two virtually identical statements dated 3 November 2008 and 31 March 2009. As at March 2006, Ms Watters worked for the appellant employer for between 9 and 15 hours per week as a call centre operator.
On the day of her accident, she was walking from her place of employment to Pymble Railway Station via Bridge Street Pymble, which is on a steep hill that the worker described as “being like a small mountain”. She added:
“When I got to near the top of the hill I felt a severe pain like a knife in the middle of my lower back. I did not feel any pain down my legs. I was just walking normally up the hill to Pymble Railway Station. I am uncertain as [to] the exact date of my accident. I understand that Dr Khan, my GP has recorded my complaint on 17 March 2006. I think that this date is more likely to be correct than the date I put on report of injury form as I filled out the form a couple of weeks after my accident and I was uncertain of the date.”
Ms Watters had only walked up Bridge Street two or three times over the 12 months she had been working at Pymble and she did not have any problems with her back on those occasions. More often than not, she drove to work rather than catching the train. She saw Dr Khan the day after her “accident” and he ordered x-rays and a CT scan.
Prior to the incident in March 2006, Ms Watters experienced an “occasional twinge” in her back, “notably during childbirth”, but there was nothing serious. She received a right hip injury in about 1980, but did not have significant ongoing problems with her hip and did not injure her low back in that accident. Prior to the March 2006 incident, she had not suffered any problems with her back.
The worker appears to have completed three different claim forms. The first is headed “Claim Form for ‘Injury on the Journey’” dated 11 May 2006, the second is a “Workers Compensation Claim Form” dated 18 May 2006, and the third is a “Claim Form for ‘Injury on the Journey’” undated and unsigned but with a “received” stamp of 23 May 2006.
I will refer to each document according to its date. In the 11 May 2006 claim form, Ms Watters stated that she had been walking up a steep hill on her way to Pymble railway station when at the top of the hill she felt a knife pain in her back.
In the 23 May 2006 claim form, Ms Watters stated that she had walked up and down Bridge Street four or five times and only had a stiff back. However, on 20 March 2006, when she got to the top of Bridge Street she felt “knife pain” in her back and she knew she “had [done] something to [her] back”. She added “but some days it when [sic, went] away but [the] pain come [sic] back”. The 18 May 2006 claim form is in substantially the same terms as the 23 May 2006 document.
Medical evidence
Dr Khan’s notes are in evidence but are particularly difficult to decipher. There appears to be an entry on 18 March 2006 referring to “backache” and “painful both ankles”. The doctor recorded no cause for the backache and he referred the worker for x-rays.
Ms Watters underwent a lumbar CT scan on 21 March 2006. It revealed end plate sclerosis and osteophytes involving the majority of the lumbar margins. It also revealed moderate degenerative facet arthritis bilaterally below L3. All discs showed annular bulging with the L4/5 and L5/S1 discs mildly degenerate. There was no disc herniation at any level.
Ms Watters saw Dr Khan again on 21 March 2006. His notes refer to x-rays of the ankles and to calcaneal spurs.
Dr Vijay Maniam, specialist, reported to a Dr Saba, general practitioner, on 22 March 2006 that Ms Watters had been suffering from left heel pain for two weeks and right heel pain for one week. He stated that the symptoms were due to excessive walking whilst going to and from work. He concluded that Ms Watters had developed early bilateral plantar fasciitis consequential upon excessive walking.
Ms Watters again saw Dr Khan on 9 May 2006 when he recorded the following history:
“On 17-3-06, while returning home from work – at top of the hill – she felt a knife pain in the back. On 18-3-06 examined – tender back.
21-3-06 x-ray – no #
Backache persists – hurts to walk up”.
Dr Khan issued a WorkCover medical certificate on 9 May 2006. Under “How the injury occurred” the worker recorded:
“Walking up hill from work, felt knife like pain in the back.”
The certificate gives a date of injury of 17 March 2006 and a diagnosis of “backache”.
Ms Watters saw Dr Khan again on 1 June 2006 when he noted that she had not been able to work since 9 May 2006 because of her pain. Ultimately, he referred her to Dr Maniam.
Ms Watters was referred to Advanced Personnel Management (‘APM’) where Ms Hinitt, rehabilitation consultant, examined her on 14 June 2006. Ms Hinitt recorded the following history:
“Ms Watters reported to sustain an injury to her lower back whilst on her way home form [sic, from] working at the Pizza Hut Call Centre, Pymble on 20 March 2006. Ms Watters reported that she was walking up a steep hill from the call centre to the station when she reached the top of the hill and experienced a sharp pain ‘like a knife stabbing’ in her lower back. Ms Watters advised that she continued walking to the station and was able to manage to catch the train home. Ms Watters reported that she drove to work the following day as she did not feel she would be able to manage catching public transport and walking up the steep hill again due to her back pain.”
Ms Watters reported that she continued to work her regular shifts over the next month and was able to manage her back pain as she felt the medication she took for a previous psychological condition assisted in relieving her pain. However, the pain in her back gradually worsened and she consulted Dr Khan who referred her for an x-ray and CT scan. Ms Watters reported a history of lower back (pain) and advised that when she had experienced low back pain in the past she had been able to manage her symptoms by taking pain medication. Ms Watters complained of a constant ache in the middle of her lower back and a constant numb feeling down the full length of the back of both legs. Her symptoms had improved since the time of her injury, but she experienced more pain towards the end of the day.
On referral from Dr Khan, Ms Watters saw Dr Maniam on 19 June 2006. In his report of the same date to Dr Khan, he recorded the following history:
“Susan works at the Pymble Pizza Hut. She catches a train to work on a daily basis. On 20.3.06 while she was walking up Bridge Street in Pymble, she felt a knife-like pain in the low back region. She managed to struggle to work and thereafter left for home.
Since, there has been recurring pain despite physiotherapy and analgesics. Pain radiates into both lower limbs and there is a numbness in both heels.
Prior to the incident she had experienced some minimal symptoms in the lumbar spine.”
On examination, Ms Watters had a normal lordotic curve but spasmodic muscles. There was no listing or scoliosis. Movements were limited in forward flexion and extension and were restricted in extreme rotation. Straight leg raising was 60 degrees on either side and the right knee jerk was sluggish. The great toe extensor was weak. Dr Maniam concluded that there appeared to be an “impingement of the right L5 nerve root” that would have to be ascertained by means of an MRI.
Dr Maniam reported again to Dr Khan on 7 July 2006. He noted that he had previously written about Ms Watters’ “lumbar spine problems stemming from an injury sustained on 20.3.06”. He recorded that an MRI scan had been obtained and exhibited the following:
“1. At L2/3 there is degeneration.
2. At L3/4 there is degenerative change and mild right foraminal bulging.
3. At L4/5 there is degenerative change.4. At L5/S1 there is narrowing and degeneration and a mild posterior left foraminal protrusion.
5. The neurological structures do not appear to be impinged upon.”
Dr Maniam concluded that the worker’s problems would stem from the degenerative changes and the protrusion. The pain radiation into both lower limbs had not been substantiated.
X-rays of Ms Watters’ ankles by Dr Ly on 14 August 2006 revealed bony spurs.
Dr Maniam reported again on 1 September 2006 having last seen Ms Watters on 16 August 2006 when she indicated she had developed bilateral ankle pain as a result of exercises at the hydrotherapy.
Dr Dixon, consultant orthopaedic surgeon, examined Ms Watters at the request of her solicitors on 21 August 2007. He took a history that Ms Watters developed pain in her back and knees after walking up a steep hill at Bridge Street Pymble on her way home from work on 20 March 2006. When she arrived at the top of the hill, she experienced “severe knife-like pain” in the middle of her back with radiation into both lower limbs with anterior knee pain and pain in both heels. On examination, Dr Dixon noted tenderness at the L5 level and at the lumbo-sacral facet joints. Straight leg raising was 65 degrees bilaterally and her knee jerks were difficult to elicit and her ankle jerks were absent.
Dr Dixon examined both the CT scan and the MRI scan. He described the MRI scan as follows:
“MRI of the lumbar spine on June 16, 2006 showed a mild focal posterior left foraminal disc protrusion and endplate thickening with marginal spurring and the L4/5 disc showed mild degenerative change with slight posterior narrowing. There was early facet arthrosis at L4/5 and L5/S1 and at L3/4, there was a mild focal right foraminal bulge of the disc.”
Dr Dixon concluded:
“In summary this patient developed pain in her back and legs after walking up a steep hill in Bridge Street Pymble, on her way home from work, walking to Pymble Railway Station. She has developed a left sided lumbo-sacral disc protrusion as well as aggravating lower lumbar sacral arthritis and has residual low back pain and lumbar stiffness with radicular complaint with sensory changes in the L5/S1 distribution of both lower limbs, with absent ankle jerks. She has difficulty doing household chores, apart from light tasks such as the dishes and is unable to do yard work.”
Dr Dixon also felt that Ms Watters aggravated both knees in her climb up the hill and aggravated early arthritis in her ankles as well as calcaneal spurs. She also had retro-patellar crepitus in the knees, more marked on the left and mild residual stiffness in both ankles, where she aggravated early degenerative changes.
Dr Dixon recorded the “nature of the condition found on examination” to be:
“1. Lumbo-sacral disc herniation with radicular complaint in both lower limbs, with some compressive features.
2. Aggravation of lower lumbar face [sic, facet] arthritis with residual low back pain and facet arthralgia and lumbar stiffness.
3. Aggravation of arthritis [sic, arthritic] change in both knees, with patello-femoral crepitus with anterior knee pain.
4. Aggravation of early arthritic change in both ankles with residual post traumatic stiffness of the ankle and subtalar joints, bilateral plantar fasciitis with plantar calcaneal spurs.
There is a causal relationship between the conditions found on examination and the injuries sustained.”
At the request of TurksLegal, Dr Silva, consultant orthopaedic surgeon, examined Ms Watters on 23 January 2008. In his report of 24 January 2008, Dr Silva recorded a history that Ms Watters walked up a hill on Bridge Street on her way to Pymble railway station on 20 March 2006 when she felt a “sharp low back pain”. There was no incident such as lifting or bending. Her pain had disappeared by the time she went to bed that evening, but since then she has had some episodic low back pain. She remained at work for three to four weeks and saw Dr Khan on 9 May 2006 complaining of back pain.
Dr Silva recorded that Ms Watters had developed back pain from a nasty side-on car accident in 1980 when she sustained a fractured jaw, fractured ribs, a punctured lung and a fracture of the pelvis for which she was hospitalised for two months. She had taken Panadol for her back pain since then. On examination, Dr Silva noted her to have a normal lumbar curvature with no muscle spasm or tenderness. Lumbar spine mobility was full and symmetrical in all directions. Straight leg raising was 80 degrees bilaterally with a negative sciatic stretch test. There were no sensory deficits or motor weaknesses in the lower limbs and reflexes were present, equal and normal. There were no weaknesses of the extensors of the toes or ankles. There was no relative muscle wasting in either leg.
Dr Silva examined the CT and MRI scans and recorded:
“1.The CT scans of the lumbar spine of 21/03/2006 were reported by Dr Phil Phillips. I agree with Dr Phillips that all discs show annular bulges which is within normal limits and there are mildly degenerate changes of an injury-related nature at L4/5 and L5/S1 with some calcification of the L5/S1 disc. There were some degenerative arthritic changes at L4/5 and L5/S1 but there was no disc herniation or thecal or nerve root compression.
Therefore the lumbar spine CT scans done a day after the alleged development of back pain were within normal limits.
2.I looked at the MRI scan of the lumbar spine of 16/06/2006 without a report. There was disc desiccation at L3/4, L4/5 and L5/S1 with mild disc bulging at L4/5 and L5/S1 without disc protrusion or nerve root compression.”
Dr Silva concluded that there was no injury on Ms Watters’ way home from work on 20 March 2006 when she was climbing up a hill, “except that she developed back pain which by the time she reached home and got to bed on that night had settled down”. He diagnosed “age-related episodic back pain” that probably started from the 1980 car accident. There was no lumbar radiculopathy. There was no work-related back injury or injury to the lower limbs, either the lower limbs or the ankles, that could reasonably be attributed to her employment situation or “her journey” on her way home from work. On the question of whether Ms Watters experienced “any internal or external pathological changes to any part of her body during her journey on 20/03/2006”, Dr Silva responded:
“I do not think that there was any traumatic pathology that she incurred as a result of walking up the hill, except that she developed a transient episode of back pain when walking up the hill which she had even before this since 1980 and continues to have. That cannot reasonably be attributed to her work situation or walking up the hill on 20/03/2006.”
Dr Silva concluded that there had been no injury. The episode of low back pain on 20 March 2006 settled by the time she went to bed that evening and could not reasonably be attributed to her work or her journey home from work because of her previous history of back pain from 1980. The episode of pain on 20 March 2006 was no different to the episodes of back pain she had from the car accident of 1980.
Ms Watters underwent a further CT scan of her lumbar spine on 6 February 2009. The radiologist concluded:
“Disc disease at L3/4 and L4/5 however only mild canal stenosis is produced at L4/5 and I am uncertain whether this is significant enough to cause the symptoms. No definite cause demonstrated for the pain radiating down both legs.
There is however some associated facet joint degeneration from L3/4 through to L5/S1”.
THE ARBITRATOR’S REASONS
In a Statement of Reasons (‘Reasons’) delivered on 16 November 2009, the Arbitrator identified the issue for determination to be whether the worker had sustained an injury within the meaning of “s 10 and 4 of the 1998 Act?” He noted the worker’s evidence that she had suffered from back pain prior to the March 2006 incident, but had not experienced anything “serious”. After referring to the terms of sections 10 and 4 in the 1987 Act, the Arbitrator stated that:
“20.It can immediately be seen that the term ‘personal injury’ applies equally to a s4 injury as it does to a s10 injury. I did not find anything in Hockey which suggested that there was the distinction contended for by the respondent.”
The Arbitrator’s reference to Hockey was a reference to Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124. Counsel for the employer had not demonstrated that a distinction existed between an injury suffered pursuant to section 10 and that defined by section 4 of the 1987 Act (Reasons at [18] and [22]).
Though the evidence disclosed different dates when the March 2006 incident is alleged to have occurred, the Arbitrator was satisfied that the incident occurred on 17 March 2006, as pleaded. He found nothing sinister in the discrepancies in the dates of injury recorded by the various specialists.
The Arbitrator disagreed with Dr Silva and added, (at [40]):
“Even had the applicant only suffered a transient twinge in her back, there is nothing at law to prevent that being described as an injury – although I am not satisfied that Dr Silva’s opinion is accurate in any event. I accept the Applicant’s evidence that this incident was more serious than anything else she had experienced and that she did suffer an injury to her lumbar spine. It was either in the form of an aggravation of pre-existing degenerative changes and/or perhaps a disc protrusion. The precise diagnosis I leave to the Approved Medical Specialist to whom the case will be referred. I am of the view that the missing MRI scan of 16 June 2006 should be located and forwarded with the papers to the AMS.”
The Arbitrator was also satisfied that the applicant suffered injury to her ankles as there was contemporaneous support for that proposition in the clinical notes from Dr Khan and investigations were carried out by Dr Ly on 14 August 2006.
With regard to the alleged injury to the knees, the Arbitrator incorrectly recorded that the first report of knee pain was to Dr Khan on 18 March 2006. Dr Dixon’s history that the knee symptoms appeared at the time of the accident was not corroborated by any of the contemporaneous documentation. The Arbitrator was not satisfied that there was “any causal relationship between the arthritis that he [Dr Dixon] diagnosed to be in the knees and the incident under consideration” (Reasons at [44]). The Arbitrator was therefore not satisfied that Ms Watters had injured her knees on 17 March 2006.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)stating that the issue for determination was “has the applicant sustained an injury within the meaning of s 10 and 4 of the 1998 [sic] Act?” when the issue related only to section 10 of the 1987 Act;
(b)failing to find whether or not the worker had sustained a personal injury within the meaning of section 10 of the 1987 Act;
(c)in concluding that the words “personal injury” in section 4 of the 1987 Act have the same meaning as those words appearing in section 10 when section 10 contains no reference to “disease” and “aggravation… of any disease”;
(d)concluding that, in considering whether or not the worker had sustained a personal injury within the meaning of section 10, he was not required to distinguish between personal injury and a disease injury or an aggravation of disease injury;
(e)failing to give adequate reasons for his findings regarding injury to the lumbar spine and to the right and left lower extremities, and
(f)making findings regarding personal injury that were against the evidence and the weight of the evidence.
The employer also seeks a review of the Arbitrator’s determination in accordance with the principles enunciated in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286.
SUBMISSIONS, DISCUSSION AND FINDINGS
The relevant legislation provides as follows. Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
In this Act:
injury:
(a)means personal injury arising out of or in the course of employment,
(b) includes:
a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, 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.”
Subsections (1) and (1D) of Section 10 of the 1987 Act provide:
“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly…
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.”
I am satisfied that Ms Watters was on a section 10 journey (a periodic journey from her place of employment to her place of abode) when she experienced sharp pain in her lower back.
The question for determination is whether Ms Watters received a “personal injury” on that journey.
The appellant employer relies on Armao v Ladue Holdings Pty Ltd t/as Pioneer Shirts and WorkCover Authority of NSW (1992) 8 NSWCCR 404; [1992] NSWCC 16 (‘Armao’) as authority that the definition of “injury” in the 1987 Act draws a clear distinction between two types of injury, namely personal injury and disease. It submitted that only a personal injury comes within section 10 and a disease injury or injury constituted by the aggravation of a disease (both of which I will refer to as ‘disease injuries’) does not (Armao at 455).
Ms Watters argued that the terms personal injury and disease are not mutually exclusive categories and that a sudden or identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the event being a personal injury (Hoani v Chubb Security Australia Pty Ltd (2000) 21 NSWCCR 242 (‘Hoani’)). As a statement of principle, this is undoubtedly correct and is consistent with the High Court authorities of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 347; (‘Zickar’) and Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at [35] and [36]; (2000) 74 ALJR 1298; (‘Petkoska’).
Though the dividing line between a disease injury and a personal injury is no longer as distinct as it once was and a disease injury can, in certain circumstances, also be a personal injury, I am in general agreement with Armao that, for the purposes of section 10, the distinction between a disease injury and a personal injury is still valid. To succeed with a claim under section 10, a worker must have received a personal injury, that is, a sudden identifiable pathological change brought about by an internal or external event. That such a change also causes, or can be characterised as, an aggravation of a disease will not prevent it being a personal injury.
The issue in the present case is similar to that faced by Burke CCJ in Armao, though the facts are slightly different. In that case, the worker twisted her right ankle on Friday 3 July 1987 when she tripped while walking down stairs at Redfern Railway Station on her way to work. When she returned home, she was aware of a degree of back discomfort. The next day she noticed increasing back pain and continuing problems with her ankle. On 5 July 1987, she saw her general practitioner and gave a history of the incident, and of her ankle and back pain. Back x-rays revealed generalised spondylosis. Her ankle improved but her back did not. The worker’s medical evidence suggested that she had a disc rupture at L4/5 but the employer’s evidence diagnosed a strain or a temporary aggravation of degenerative changes consistent with the worker’s age.
Burke CCJ was satisfied that the worker’s back symptoms had resulted from the incident on 3 July 1987 and that the effects of the incident continued. On the question of whether the injury was a personal injury his Honour acknowledged (at 454A), consistent with the subsequent decisions of Petkoska and Zickar, that:
“If the better view of the evidence is that the worker sustained a disc lesion, be it prolapse, protrusion or herniation, I would tend to think that such a pathological change was clearly to be categorised as personal injury.”
He did not accept that there was some extruded disc material or that the injury (the trip) resulted in a “frank injury to the disc” (454D). After reviewing the medical evidence, he concluded that the worker had a pre-existing (asymptomatic) disease in her spine that the trip rendered symptomatic.
In Hoani, the worker turned her ankle alighting from a bus on a work journey resulting in a chronic condition diagnosed as post-traumatic lymphoedema (excessive accumulation of fluid in the lymph vessels). The Court found that the injury (the twisting) had caused a sudden physiological change reflected in pain and immediate swelling that continued to the date of the hearing and that the worker had suffered an “injury” with paragraph (a) of section 4 of the 1987 Act.
Armitage CCJ considered Armao and Hoani in McGraw v Commonwealth Bank of Australia Ltd [2002] NSWCC 56; (2002) 24 NSWCCR 372 (‘McGraw’) and concluded (at [32]) that the majority in Zickar held that section 4(b) of the 1987 Act was not to be construed as excluding an aggravation of a disease from being a personal injury. The two expressions were not mutually exclusive.
It is correct that the majority in Zickar held that the two expressions (personal injury and disease injury) were not mutually exclusive. However, they did so in the context that for a disease injury to constitute a personal injury there must be a sudden identifiable pathological change. For example, the collapse of one or two infected vertebral bodies (Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 9), or the rupture of a blood vessel, which was distinct from the disorder or morbid condition (disease) (Accident Compensation Commission v McIntosh [1992] 2 VR 253 at 262, and Zickar at 335).
In Zickar, the appellant based his claim on the rupture of the blood vessel (a sudden identifiable pathological change) not on the autogenous disease. As Toohey, McHugh and Gummow JJ explained (at 334):
“If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.”
Armitage CCJ also concluded (at [33]) that Burke CCJ held in Armao:
“that where a worker’s injury on a journey to which s 10(1) prima facie applied was to be characterised as an aggravation of a pre-existing disease, it could not also be a ‘personal injury’ within the meaning of either the first ‘leg’ of the definition of ‘injury’ in s 4 of the Act, or within s 10(1) itself, so that the worker failed.”
On my reading of Armao, his Honour expressly acknowledged, consistent with Zickar, that in order to establish a personal injury it was necessary to prove that a sudden identifiable pathological change had occurred. He did not suggest that an injury that aggravated a degenerative condition could not also be a personal injury, but considered whether, on the facts before him, the worker had received such a personal injury. He did not exclude the possibility that the worker had received a personal injury because the incident had also aggravated degenerative changes, but concluded on the evidence that there had been no personal injury.
To the extent that McGraw suggests that a disease injury, without a sudden identifiable pathological change, constitutes a personal injury, it is not consistent with Zickar. To establish a disease injury it is necessary that the disease be contracted in the course of the employment and to which the employment was a contributing factor (section 4(b)(i)), or, in the case of an aggravation injury, that the employment was a contributing factor to the aggravation (section 4(b)(ii)). While on a journey, a worker will not normally be in the course of his or her employment and employment will not be a contributing factor to a disease injury. Therefore, to succeed, Ms Watters has to establish that she received a personal injury, that is, a sudden identifiable pathological change.
At the arbitration in the present matter, counsel for the appellant employer focused mainly on whether Ms Watters had suffered an injurious event, such as a trip or fall, and made only one reference to whether she had an “alteration in pathology” (T23.13). There is no dispute that Ms Watters did not trip or fall, but that does not mean that she may not have received a personal injury on a journey.
I agree that the Arbitrator failed to find if Ms Watters had received a personal injury but instead held that her condition was “either in the form of an aggravation of pre-existing degenerative changes [an aggravation of a disease], and/or perhaps a disc protrusion” (a personal injury) (emphasis added) (Reasons at [40]). Consistent with Zickar, an aggravation of pre-existing degenerative changes (a disease injury) is not, on its own, a personal injury unless there is a sudden identifiable pathological change. However, a sudden pathological change (such as a disc protrusion or rupture) is a personal injury even though it also causes an aggravation of a disease.
The question in the present case is whether Ms Watters suffered a sudden or identifiable pathological change, a disc protrusion, on her journey. The Arbitrator did not answer that question. Though it will not always be necessary for the Commission to determine the nature of the injury alleged to have been received, it will have to do so in a case such as the present where the distinction between personal injury and a disease injury is critical.
This error requires that the matter be re-determined. As the Arbitrator heard no oral evidence, I am in as good a position to conduct that re-determination and that is the course I propose to adopt.
The appellant employer submitted that Ms Watters was an unreliable witness because she was uncertain of the exact date of the incident and because of Dr Silva’s history of prior back pain. That Ms Watters was uncertain of the date of the relevant journey is not of any great weight. Based on Ms Watters’ evidence that she saw Dr Khan the day after the incident and having regard to Dr Khan’s notes on 18 March and 9 May 2006, I am satisfied that she experienced a sharp pain while walking home on 17 March 2006. I draw no adverse inference from the fact that she gave a different date (20 March 2006) in her claim form and to the expert witnesses.
In respect of prior back pain, Ms Watters said in her statement that she had not previously experienced anything “serious”. Dr Silva recorded that she developed back pain from a nasty side-on car accident in 1980 and that since then she had taken some panadol for her pain. I prefer and accept Ms Watters’ evidence that she had only experienced occasional twinges in her back, notably during childbirth, prior to March 2006. This conclusion is partly confirmed by the lack of complaint of back pain to Dr Khan between 2004 and March 2006. I also accept her evidence that she did not injure her back in the 1980 accident. Though she did have some back symptoms before March 2006, I accept that they were of a significantly different character and level to the symptoms she experienced on 17 March 2006.
Relying on Zickar, Ms Watters argued before the Arbitrator that just because there was no “orthopaedic traumatic event” (T21.53) did not mean she had not received a personal injury. I agree that the lack of an “orthopaedic event” does not prevent Ms Watters succeeding. The question of whether she suffered a disc protrusion on her journey is more difficult.
Ms Watters’ counsel submitted, and I accept, that the pain she experienced on 17 March 2006 was of a different “character” to the pain she had previously experienced (T20.50 and T21.3). It was of sudden onset and like a knife to the back (T21.20). She relied on Dr Dixon’s opinion that she developed a left lumbo-sacral disc protrusion on a journey to which section 10 applies, as well as aggravating arthritis, to establish that she received a personal injury on a journey (T21.26).
The employer argued that the evidence from Dr Silva was more persuasive than that of Dr Maniam or Dr Dixon because Dr Maniam had a history of the worker walking to work (rather than from work) and Dr Dixon’s history (of the worker experiencing back and lower limb pain at the top of Bridge Street) was inconsistent with Dr Khan’s notes and the worker’s evidence. Dr Maniam’s history of heel pain due to excessive walking was also inconsistent with Ms Watters’ evidence.
I do not consider Dr Maniam’s incorrect history is of any significance. Whether Ms Watters experienced symptoms on her way to work or from work is not determinative. Of more importance are the radiological investigations and the correlation between those investigations and the worker’s symptoms.
The initial CT scan on 21 March 2006 disclosed annular bulging at all levels of the lumbar spine, but no herniation and no nerve root compression. It provides no support for the worker’s argument that she experienced a sudden identifiable pathological change. The changes demonstrated in the CT scan were clearly of long standing.
The medical experts have conflicting interpretations of the MRI scan and clinical signs. Dr Maniam has merely repeated the radiologist’s report on the MRI scan, noting that it revealed degeneration at four levels and a disc protrusion at L5/S1. He felt that Ms Watters’ lower limb pain had not been substantiated and that there was no evidence of “overt radiculopathy”. It would have been helpful if Ms Watters’ solicitors had obtained a medico-legal report from Dr Maniam and, in the absence of such a report, I have found his evidence of limited assistance.
Ms Watters’ strongest support comes from Dr Dixon. However, he wrongly recorded that the back pain radiated into both legs at the time that she felt the knife like pain. Ms Watters’ evidence is that she did not feel pain down her legs at the time she felt the knife like symptoms. It is not known exactly when the pain first radiated into the legs, though Dr Maniam recorded that pain on 19 June 2006. It is unclear to what extent Dr Dixon relied on the incorrect history in reaching his conclusion and this point is relevant but not decisive.
It is of more significance that, on examination, Dr Dixon found sensory alteration “in an L5 distribution below the knee” and absent ankle jerks, which are consistent with Ms Watters having disc pathology at the time of his examination in August 2007. Dr Dixon summarised the MRI scan in substantially the same terms as Dr Maniam. Dr Dixon’s evidence provides strong support for the proposition that Ms Watters suffered a disc protrusion on 17 March 2006 and therefore suffered a personal injury on a journey.
Dr Silva’s history suggested that Ms Watters experienced only transient back pain on 17 March 2006, which disappeared by the time she got home. This history is not dealt with in either of Ms Watters’ statements, which merely refer to her feeling a severe pain “like a knife” in the middle of her lower back when she got near the top of the hill. She did not say if that pain continued. Dr Dixon’s history is silent on this important issue. Though Dr Khan’s notes on 18 March 2006 did not record that Ms Watters complained of knife like pain, her symptoms were sufficiently severe for him to refer her for a CT scan and for her to drive to work the next day rather than travel by train (see Ms Hinitt at [33]). It is extremely unlikely that Dr Khan would have made such a referral if Ms Watters’ symptoms had “disappeared” by the time she got home on 17 March, as Dr Silva’s history suggested. Clearly, her back symptoms continued on 18 March and subsequently. I accept that Ms Watters has continued to have significant lower back pain since 17 March 2006 and that the pain was and has remained of a significantly different character to that which she experienced before March 2006. Those symptoms are much more than merely the age related “episodic” back pain that Dr Silva diagnosed. This strongly supports a conclusion that she suffered a personal injury on 17 March 2006.
In contrast to Dr Dixon, Dr Silva found no sensory deficit or motor weakness in the lower limbs and he found the reflexes to be present, equal and normal. There was no weakness of the extensors of the toes or ankles. There was no evidence of radiculopathy. It is difficult to resolve this conflict between two qualified experts, especially when the worker’s statement is so inadequate and gives only the most cursory summary of her symptoms after 17 March 2006. However, given Ms Watters’s evidence, which I accept, of minimal relevant back symptoms before March 2006 and given her consistent complaint of severe pain “like a knife” in her lower back while walking up a steep hill on 17 March 2006 and given the development of leg symptoms shortly after that date, I prefer and accept Dr Dixon’s findings and conclusions that Ms Watters suffered a lumbo-sacral disc herniation in preference to Dr Silva’s conclusion of episodic back pain that was no different to the pain she experienced since 1980. It follows that Ms Watters suffered a sudden identifiable pathological change on 17 March 2006 that is a personal injury within the meaning of section 10.
In submissions filed on 5 March 2010, counsel for Ms Watters observed that section 10 “contains its own causation exclusion in subsection (1D) where the injury resulted from the ‘medical or other condition of the worker and the journey did not cause or contribute to the injury’.” He submitted that the subsection contemplates a situation where the (personal) injury resulted from a medical or other condition but the journey did not contribute to the injury.
Counsel for the appellant employer made a passing reference to subsection (1D) at the arbitration (T19.1-19), but as the worker’s counsel made no reference to it, he did not develop his submission. The appellant employer has not relied on subsection (1D) on appeal. The subsection is only relevant if it is established that “the personal injury resulted from the medical or other condition of the worker”. The onus is on the employer to establish the defence under the subsection (McGraw and Roads & Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220 at [55]). There is no persuasive evidence that Ms Watters’ personal injury resulted from a medical or other condition. The appellant employer’s case, based mainly, but not wholly, on Dr Silva’s evidence, is that the worker did not receive a personal injury but merely experienced episodic low back pain on 17 March 2006. For the reasons stated above, I have rejected that submission.
The appellant employer also challenged the Arbitrator’s finding that Ms Watters suffered an injury to her ankles. At [41] of his Reasons the Arbitrator found that Ms Watters suffered an injury to her ankles because there was contemporaneous support for that proposition in the clinical notes of Dr Khan, and Dr Ly carried out investigations on 14 August 2006. It is true that Dr Khan’s notes refer to ankle pain on 18 March 2006. However, Ms Watters’ statements made no reference to experiencing ankle pain while walking home on 17 March 2006. The main support for the alleged ankle injury is in Dr Dixon’s evidence. He referred to Ms Watters having suffered an aggravation of early arthritic pain in both ankles with residual post-traumatic stiffness of the ankle and subtalar joints, bilateral fasciitis with plantar calcaneal spurs. At best, this evidence is consistent with an aggravation of degenerative changes, a disease injury. On its own, that does not constitute a personal injury.
The only other potential support for the alleged ankle injury is from Dr Maniam. However, in his report of 22 March 2006, Dr Maniam recorded that Ms Watters had left heel pain for two weeks and right heel pain for one week due to excessive walking going to and from work. He took no history of Ms Watters experiencing any particular symptoms in her ankles on 17 March 2006 (the date of the alleged injury) and there is no evidence of a sudden identifiable pathological change in her ankles on that day. Dr Maniam’s evidence does not support a conclusion that Ms Watters received a personal injury to her ankles on 17 March 2006. At its highest, Dr Maniam’s evidence is consistent with the aggravation of a disease as a result of prolonged walking. That is not the injury pleaded. In any event, as discussed above, such an aggravation of degenerative changes without evidence of a sudden identifiable pathological change is not a personal injury.
It follows that the Arbitrator erred in finding that Ms Watters received an injury to her ankles on 17 March 2006.
CONCLUSION
Having conducted a review on the merits I find that Ms Watters received a personal injury, namely a disc protrusion at the lumbo-sacral level, on 17 March 2006 whilst on a journey from her place of employment to her place of abode. I am not satisfied that she received a personal injury to her ankles on that day. In view of my finding, it is not necessary to make a direction that Ms Watters lodge the MRI scan with the Commission.
DECISION
The Arbitrator’s determination of 16 November 2009 is revoked and the following orders made:
“1.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of any whole person impairment of the worker’s lumbar spine as a result of personal injury received by the applicant worker to her low back on 17 March 2006.
2.The evidence to be forwarded to the Approved Medical Specialist includes the Application to Resolve a Dispute filed on 19 August 2009 and the Reply filed on 10 September 2009, but excluding Dr MacMahon’s report of 4 July 2006.
3.The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.”
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
30 March 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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