Issue 1: January 2013

NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76

1. The claim in respect of injury to the right upper extremity (right shoulder) being discontinued, the Application was amended accordingly and leave was granted to dispense with the filing of an amended Application;

2. The respondent was ordered to pay the applicant’s expenses pursuant to s 60 of the 1987 Act, in respect of injury to the left shoulder and cervical spine on 24 September 2003, and

3. The claim pursuant to s 66 of the 1987 Act was remitted to the Registrar for referral to an AMS to assess whole person impairment in respect of injury to the applicant’s left upper extremity (left shoulder), the date of injury being 24 September 2003.

The issues in dispute on appeal were whether the Arbitrator:

(a) erred in his interpretation and application of Greater Taree City Council v Moore [2010] NSWWCCPD 49 (Moore) in remitting the matter to the Registrar for referral to an AMS in circumstances where:

1. the appellant had not “conceded injury”, and
2. the claim was a claim for lump sum compensation and s 60 expenses.

(b) in making a general order for the payment of s 60 expenses that was not based on an examination of the evidence but on a mistaken application of Moore;

(c) in making a general order for the payment of s 60 expenses in relation to the cervical spine in circumstances where Mrs Murray had not claimed lump sum compensation for any cervical spine injury, and

(d) in effectively restricting the appellant’s capacity to decline liability for s 60 expenses to the issue of whether those expenses were “reasonably necessary”.

Held: The Arbitrator’s determination was confirmed

1. Except with leave of the Commission, there is no right of appeal against an interlocutory decision by an Arbitrator, and the Commission is not to grant leave “unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A)) [31].

2. The Arbitrator merely remitted the matter to the Registrar for referral to an AMS to conduct an assessment of whole person impairment. That order did not finally disposed of the parties’ rights (see Gibbs J in Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444) [33].

3. However, the appeal challenged the referral to the Registrar and, if successful, it would have eliminated the need for a referral to an AMS. In these circumstances, the appeal was desirable for the proper and effective determination of the dispute [34].

Did the appellant dispute injury?

4. The essential issue on appeal was whether the appellant disputed that Mrs Murray had received an injury, that is, whether, in the accepted incident on 24 September 2003, she suffered or received an injury to her left shoulder (see PMP Directories Pty Ltd v Tran [2012] NSWWCCPD 71) [49].

5. Employment only has to be a substantial contributing factor to the injury, not the consequences of the injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 733). Once a worker has received an injury to which his or her employment was a substantial contributing factor, s 9A has no more work to do [52]. Employment does not cease to be a substantial contributing factor to the injury just because the worker has recovered from the effects of the injury [58].

6. A worker is entitled to recover the cost of hospital and medical expenses if, as a result of an injury received, it was “reasonably necessary” that the medical or related treatment be given, not if the treatment was “reasonable or necessary” [53].

7. It was not accepted that either the s 74 notice, or the Reply, or both documents combined, disputed that Mrs Murray received an injury to her left shoulder on 24 September 2003. Rather than denying that Mrs Murray had injured her left shoulder, they merely said that any work aggravation had ceased [57].

8. Issues in dispute are ultimately determined by the way the parties present their respective cases. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15]) “pleadings are only a means to an end” and if, in the running of the case, the parties chose to restrict them, enlarge them, or to disregard them, “it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest” [63].

9. If the Reply and s 74 notice had disputed injury, counsel for the respondent conceded at the arbitration that the evidence established that Mrs Murray suffered an injury to her left shoulder on 24 September 2003 [64].

10. The respondent was bound by the conduct of its counsel (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]) [68].

11. The issue in dispute was the extent of that injury and whether any whole person impairment resulted from it [78].

Relevance of the claim for s 60 expenses

12. It was submitted that, even if it were found that injury had been conceded, because Mrs Murray also claimed the cost of medical expenses under s 60 it was inappropriate to refer the matter to an AMS without first determining whether the effects of the pleaded injuries had ceased. This submission was rejected.

13. Before the Arbitrator could make a “general order” (for the payment of hospital and medical expenses), he had to be satisfied that Mrs Murray was a worker under the legislation and that she had received an injury. It was not in issue that Mrs Murray was a worker and it was admitted that she had received an injury to her neck and left shoulder. For the purpose of making a general order for the payment of s 60 expenses, it was not necessary for the Arbitrator to go further and determine that, as a result of the injury, the relevant treatment was “reasonably necessary” as a result of the injury (Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53 at [20]) [82].

14. It followed that, given the way the case unfolded at the arbitration, the fact that the present case included a claim for s 60 expenses did not distinguish it from Moore and did not prevent the Arbitrator remitting the matter for referral to an AMS for assessment of permanent impairment. The Commission has previously held that a “general order” for the payment of s 60 expenses is of “limited efficacy” (Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 at [55]). The general order in the present matter was of limited, if any, effect and there is nothing in Moore that suggests that such an order cannot be made without first determining if the effect of an accepted injury has ceased [83]. A general order did not prejudice the appellant’s right to dispute payment of s 60 expenses [85].

(a) finding that Mr Wicks’s abuse of alcohol was a consequence of his injury, rather than a cause;

(b) finding that Mr Wicks was suffering a disease of gradual process as a result of an accumulation of events in the course of his employment at the Maitland Police Station, when the evidence supporting such a conclusion was flawed;

(c) accepting that the evidence of Mr Southam, Mr Wicks and others, sufficiently established that Mr Wicks’s disease was aggravated during the course of his employment with Transfield;

(d) concluding that Mr Wicks was totally incapacitated for work and rejecting the opinion of Dr Akkerman in respect of Mr Wicks’s capacity for work when neither Dr McDonald nor Dr Canaris had recently examined Mr Wicks, as Dr Akkerman had;

(e) preferring Dr McDonald’s evidence, given that he found the events after January 2006 aggravated, accelerated or exacerbated Mr Wicks’s psychiatric disease whilst Dr McDonald found that his disease commenced after January 2006, and

(f) preferring the reports of Dr Canaris and Dr McDonald as these reports suffered forensic inadequacies (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita).

An additional issue concerned whether Transfield was entitled to tender on appeal video evidence of Mr Wicks socialising and playing bowls and an additional medical report from Dr Akkerman, psychiatrist.

Held: The Arbitrator’s determination confirmed

Fresh Evidence

1. The application to rely on the surveillance reports and the video (of Mr Wicks) as fresh evidence on appeal was refused [87]. There was no satisfactory explanation of what steps were taken to obtain this kind of evidence prior to the two arbitrations [88]. The evidence was of limited probative value and it was not in the interests of justice that the evidence be admitted on appeal [89], [101].

2. The application to rely on Dr Akkerman’s report, dated 14 November 2012, as fresh evidence on appeal was refused because it was unsatisfactory and lacking probative value [119]. In requesting the report, Ms Sutton (Transfield’s solicitor) put a number of assumptions to Dr Akkerman which were not supported by the evidence and, consequently, his opinions were of no value [105], [117].

Abuse of alcohol

3. The finding that Mr Wicks’s abuse of alcohol was a consequence of his injury, rather than a cause was not pressed on appeal. It was acknowledged that the evidence supported the Arbitrator’s finding that Mr Wicks’s abuse of alcohol was more a consequence than a cause of his illness [121].

Finding of disease

4. Both Dr McDonald (the treating psychiatrist) and Dr Canaris (the worker’s qualified psychiatrist) gave unequivocal evidence that Mr Wicks’s PTSD was a “disease contracted by a gradual process” of exposure to psychological stressors in his workplace [124]-[125]. The Arbitrator accepted this evidence and it was open for her to do so.

5. The question was, in the case of a s 4(b)(i) injury, whether the employment with Transfield was employment “to the nature of which the disease was due” or, in the case of s 4(b)(ii), whether it was “a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration” of the disease (noting that, in a s 4(b)(ii) case, employment only has to be a substantial contributing factor to the aggravation, acceleration or deterioration of the disease not the underlying condition: Murray v Shillingsworth [2006] NSWCA 367 at [64]). In either case, on the evidence presented, which was not in any way undermined by the fresh evidence sought to be tendered on appeal, Mr Wicks was entitled to succeed [131].

Aggravation of disease

6. The Arbitrator said that Mr Wicks’s case was that his injury was due to the aggravation, acceleration, exacerbation or deterioration of a disease, namely, PTSD. She correctly identified the following questions from Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) as being the questions that had to be determined:

(a) Was Mr Wicks suffering from a disease?

(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?

(c) If so, was Mr Wicks’s employment a contributing factor?

(d) If so, did total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration? [133]

7. The Arbitrator also noted that there will be an aggravation of a disease if the consequences of the affliction have become more serious (Semlitch at [639]). The Arbitrator found in Mr Wicks’s favour on all of these questions and it was open for her to do so [134].

8. To the extent that this ground of appeal suggested that the Arbitrator erred in accepting the evidence of Mr Southam (that Mr Wicks’s work involved disposing of exhibits which were bloodstained and soiled), the submission  was rejected on the ground that the exhibits officer, Mr Southam was better placed than other witnesses to give evidence of the procedures involved [140].

Incapacity

9. The Arbitrator correctly observed that the medical evidence mainly addressed the issue of causation and was “of limited assistance in determining incapacity” [148].

10. After referring to Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206 (Lawarra Nominees), the Arbitrator noted that the principles in that case had been applied in Moran Health Care Services v Woods [1997] NSWSC 147; (1997) 14 NSWCCR 499 (Woods) and in O’Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 (Bahmad) and that, in Bahmad, it was held that the test for total incapacity is not that a worker is unfit for all things that form part of employment activity, but whether the injured worker’s labour is “unsaleable in the relevant labour market” [152].

11. The Commission had to assess Mr Wicks’s capacity in the context of his injury, age, work history, education and training, and the labour market reasonably available to him. Consistent with the authorities of Lawarra Nominees, Woods and Bahmad, the Arbitrator correctly referred to those matters and her conclusion was not undermined by the fresh evidence on appeal [160].

12. The fact that neither Dr Canaris nor Dr McDonald had re-assessed Mr Wicks immediately before the second arbitration was of no moment. Mr Wicks’s unchallenged evidence in his supplementary statement that he continued to have dreams of distressing events, and that he still woke up at night in a cold sweat, provided a sound basis for the acceptance of their opinions on incapacity [164].

13. The lack of evidence of a recent examination may have been relevant had there been persuasive evidence that Mr Wicks’s condition had materially improved [165].

14. Given that Mr Wicks had no transferrable skills, and had not been offered any re-training or rehabilitation, and no alternative suitable employment for which Mr Wicks was fit was suggested, the Arbitrator’s conclusion that Mr Wicks was totally unfit was open and was not affected by fresh evidence sought to be tendered on appeal [166].

Dr McDonald’s Evidence

15. It was submitted that Dr McDonald’s evidence, namely, that Mr Wicks had not suffered any diagnosable disease before 2006 and that the disease developed after 2006, “was not in accordance with the Arbitrator’s findings of causation” [170].

16. The Arbitrator based her conclusion on s 4(b)(ii), that was, that the injury was an aggravation, exacerbation or acceleration of a disease. In support of that finding, she relied on the evidence from Dr Canaris. That finding disclosed no error [174].

17. Notwithstanding this finding, Dr McDonald’s evidence was still relevant to the diagnosis and the question of incapacity. The Arbitrator’s acceptance of Dr McDonald’s evidence on these issues disclosed no error [175].

Makita v Sprowles

18. It was submitted that determinations should be made on evidence properly founded and, if it was not properly founded, it was of limited weight. It was submitted that Dr Canaris and Dr McDonald gave no proper explanation for the change in emphasis in their latest reports and those reports breached the principles in Makita [176].

19. The principles in Makita were not argued at the second arbitration and it was therefore not open to submit on appeal that an Arbitrator had erred in failing to deal with an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [177]-[178]. The Makita point was without merit in any event [182].

20. The history recorded by a doctor does not have to correspond with complete precision with the facts. It is sufficient if the history provided a fair climate for the acceptance of the opinion offered (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510). The facts assumed do not have to be the true or real facts, but only the facts asserted. An expert must identify the “facts and reasoning process which he or she asserts justify the opinion” (Australian Securities and Investments Commission v Rich [2005] NSWCA 152). That is sufficient to enable the tribunal of fact to evaluate the opinions expressed (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2011) 80 NSWLR 43; 8 DDCR 399 at [85] (Hancock)) [188].

21. As observed by Beazley JA in Hancock at [85], what is required for satisfactory compliance with the principles governing expert evidence is for the expert to set out the facts observed, the assumed facts, including those garnered from other sources such as the history provided by the worker, and information from investigations. The evidence from Dr Canaris and Dr McDonald met that standard [193].

1. Award for the respondent in respect of the claims based on injury in the course of employment on 18 May 2005.

2. No order as to costs.

The issues in dispute on appeal were that the Arbitrator erred in:

(a) concluding that the evidentiary onus upon the respondent concerning causation of incapacity had been discharged;

(b) finding that the “incident of 18 May 2005” did not give rise to any incapacity after June 2005;

(c) in finding that it was likely that Mr Britt returned to work on 11 June 2005 without evidence of any restriction;

(d) in finding that the submission of the respondent more closely corresponded to the facts concerning causation than those submissions put on behalf of Mr Britt, and

(e) in finding that Mr Britt suffered a pre-existing degenerative condition in his neck which was rendered symptomatic from time to time.

Absence of full record of proceedings

1. By reason of the failure of a recording device utilised by the Commission the transcript of proceedings conducted before the Arbitrator on 18 June 2012 was incomplete [13].

2. The conduct of the appeal was not materially impeded by the deficiency found in the transcript of proceedings. There was before the Commission a summary of those submissions which had not been sound recorded. That summary by the Arbitrator was made and recorded in the presence of the parties. No objection was taken to the course adopted by the Arbitrator nor to those matters then stated by him. It followed that, justice did not require that the matter be remitted for rehearing and that the appeal should proceed ( see Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358 at [32] per Bryson JA, with whom Handley JA and Bell J agreed) [19], [21], [24].

The decision

3. As was made clear by the Arbitrator’s analysis of the material before him, there was a significant body of evidence which suggested firstly that Mr Britt had experienced recurrent neck pain over a long period of time, including at times earlier than May 2005 and, secondly, that histories recorded by medical practitioners at or about the time of the subject injury conflicted with the history of injury, as alleged by Mr Britt, being onset of pain as he was carrying his luggage [29].

4. It was held that:

(a) the evidence relied upon by the respondent concerning the long history of recurrent neck pain requiring treatment was sufficient to permit the Arbitrator to conclude that any evidentiary onus upon the respondent concerning causation had been discharged;

(b) the finding that the incident of 18 May 2005 did not give rise to any incapacity after June 2005 was founded upon the evidence which demonstrated that no complaint had been made concerning neck disability for months following Mr Britt’s apparent return to work and, it was noted, in the absence of any evidence from Mr Britt of such ongoing disability other than his uncorroborated statement, made in May 2012, that he returned to work on “modified duties” and that he “could not maintain [his] previous level of work”;

(c) finding of return to work likely on 11 June 2005 without evidence of restriction was open on the evidence and demonstrated the Arbitrator’s preference for the inference available to be drawn from the medical evidence and notes as against the late evidence in the May 2012 statement which was uncorroborated;

(d) the Arbitrator’s acceptance of the respondent’s argument concerning causation (that the May 2005 incident was one of a series of incidents going back over many years and that Mr Britt instead suffered a new onset of severe neck pain on waking up from an unrelated procedure in December 2005) was open on the evidence and no error was demonstrated, and

(e) there was abundant evidence that indicated Mr Britt suffered a pre-existing degenerative condition in his neck and that his neck had become symptomatic from time to time [61].

(a) by accepting A/Prof Bolin’s opinion expressed in his report of 18 January 2011, and
(b) by providing inadequate reasons.

Held: Arbitrator’s determination confirmed

1. The appellant submitted that the Arbitrator erred by placing any weight on A/Prof Bolin’s report of 18 January 2011, because he failed to establish a proper foundation for the acceptance of his opinion as he did not identify, in sufficient terms, the quantum of the medication ingested by Mr Ivanovic and the period of time over which it was ingested [51].

2. Applying the principles in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, per Allsop P at [2] and [3] and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, the question was did A/Prof Bolin’s report satisfactorily comply with the requirements for the acceptance of his expert opinion? His opinion was based on his understanding of injuries suffered by the worker, the worker’s complaints of gastro-intestinal symptoms extending over an extended period, a review of the medications taken by Mr Ivanovic, and his examination and clinical evaluation. A/Prof Bolin’s opinion was consistent with the evidence of injury, the consumption of analgesic medication because of that injury. There was no challenge to A/Prof Bolin’s expertise. His unchallenged history provided a fair climate for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) and it was open to the Arbitrator to accept it. That was especially so in circumstances where the appellant tendered no competing medical opinion [54].

3. It was clear that A/Prof Bolin’s opinion was based on the history he recorded, his findings on examination and his expertise as a gastroenterologist. Not every opinion in an expert’s report must be explained chapter and verse against the mere possibility that it may be challenged. Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [87] and [89]. [55]

4. Although the appellant submitted that the Arbitrator erred by accepting A/Prof Bolin’s opinion in the absence of the doctor identifying the documents referred to in his report, there was no challenge in the proceedings before the Arbitrator as to the acceptance of the doctor’s opinion on that basis. Parties are normally bound by the conduct of their case at first instance (University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 and 71). [56]

5. However, a point may be raised for the first time on appeal where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1, at 6–7), or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 498). Neither was the case in this matter [57].

6. Had the issue been raised before the Arbitrator it might well have been met by evidence, by a call on the worker’s solicitor’s file, a direction to produce the doctor’s file or a simple request to the worker’s solicitor to provide a copy of his qualifying letter to A/Prof Bolin. No submissions were advanced as to why it was in the interests of justice to allow the point being raised for the first time on appeal, nor was it in the interests of justice to do so [58].

7. The submission that the Arbitrator failed to address inconsistencies in the evidence was also without merit. The worker’s complaint that his gastro-intestinal condition first manifested itself within two years of the accident was unchallenged. His evidence was consistent with Dr Srinivasan’s notes and with the history he provided to A/Prof Bolin. The history was also consistent with the medical records which revealed that Mr Ivanovic was being prescribed analgesic medication between 2001 and 2010 on numerous occasions. There was no challenge to the worker’s evidence that, prior to the ingestion of the analgesic medication, he had not suffered from any gastro-intestinal complaints nor was there any evidence that those complaints were due to anything other than the ingestion of analgesia [59].

8. In so far as it was alleged the Arbitrator failed to give proper reasons, s 294(2) of the 1998 Act requires that a brief statement is required to be attached to the Certificate of Determination setting out the Commission’s reasons for the determination. Rule 15.6 of the Workers Compensation Commission Rules 2011 sets out the requirements for the extent of the reasons to be provided. Although the Arbitrator’s Reasons were brief, her conclusion was based on:

(a) the worker’s uncontested evidence as to the extent of his ingestion of analgesic medication and the period of time over which he took it;

(b) the acceptance of A/Prof Bolin’s opinion concerning the causal relationship between the ingestion of analgesic medication and his gastro-intestinal complaints, and

(c) the absence of any evidence to contradict A/Prof Bolin’s expert opinion [61].

9. The Arbitrator also gave reasons for rejecting the submission that the evidence of A/Prof Bolin was unreliable. Those reasons were, in the context of the evidence called, adequate [62].