Workers Rehabilitation and Compensation Act 1988 (Tas), s25(1).

Workers Compensation - Causal relation between injury and incapacity or death - Incapacity or death due to two causes - Injury not being a disease suffered in first employment - Development of a disease as a consequence - Change of employment - Further development of disease - Whether eventual incapacity resulted from injury not being a disease which was suffered in course of first employment or from injury which was a disease suffered in the course of second employment.

Judgment ID Number: [1999] TASSC 28

trading as the Tamar Court Brasserie and Wine Centre v

EPIC AMBER PTY LTD trading as the Riverside Tavern

1 The first respondent, Miss Dixon, was employed by the second respondent as a bar attendant at the Riverside Tavern. On or about 24 February 1993, she suffered an injury, not being a disease, arising out of and in the course of her employment. In stating that, I have used the terms of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25(1). She suffered the injury while she was stacking casks of wine. The injury was suffered in the right side of her neck. On 24 March 1993, she made a claim for workers compensation which was accepted by the second respondent. She only had about two days off work at the time as a result of the injury, and continued in that employment until she left it in February 1996. Up until then the symptoms, which included pain, continued to be suffered by her to a variable extent, but she had no further time off work because of them after 1993. She commenced employment with the appellants at the Tamar Court Brasserie and Wine Centre on 16 January 1996. The periods of employment with the two employers overlapped for a short time.

2 It was Miss Dixon's case that during the time she was employed by the appellants, the symptoms from which she had suffered as a result of the original injury gradually worsened until she became totally incapacitated for work on and after 12 July 1996.

3 I did not understand it to be disputed on the hearing of the appeal that Miss Dixon was entitled to be paid compensation under the Act, including weekly payments, consequent upon a total incapacity for work. The real issue was who, between the appellants and the second respondent, was liable to pay that compensation.

4 In April 1997, Miss Dixon referred to the Workers Rehabilitation and Compensation Tribunal her claim that she was entitled to be paid compensation under the Act "in respect of an injury suffered by me in the course of my employment with D P & L K Baker on or prior to 13th June 1996" or, alternatively, that she was entitled to be paid compensation under the Act "in respect of an injury suffered by me in the course of my employment with Epic Ambers [sic] Pty Ltd on or about 24th February 1993". At the hearing of the appeal no point was taken concerning the mention in the reference of 13 June 1996 as a material date.

5 Following a hearing, the Tribunal determined that it was the appellants who were liable and not the second respondent. It was ordered that the appellants "pay compensation of weekly payments and medical and ancillary expenses in accordance with the Act in respect of the worker's total incapacity since July 1996".

6 On the hearing of the appeal, which was brought from that order, a major issue was whether the learned Commissioner applied an incorrect test in the course of determining that the appellants were liable. Certainly the test was incorrectly stated by the learned Commissioner, but it was submitted for the respondents that it may safely be inferred, upon a careful reading of all of the Commissioner's reasons, that the correct test was applied.

7 Early in his reasons, the learned Commissioner explained what Miss Dixon had raised in her reference to the Tribunal in these terms:

"The worker has lodged an application seeking to determine whether her incapacity since July 1996 has been as a result of the 1993 injury or alternatively her employment generally during 1996 with the second employer."

That contained an incorrect statement of Miss Dixon's claim against the appellants in her written reference to the Tribunal. The reference did not maintain a right to be paid compensation by the appellants for an incapacity which had resulted from her employment generally during 1996 with the appellants. It maintained an entitlement to be paid compensation by the appellants in respect of an injury suffered by her in the course of that employment on or prior to 13 June 1996. That incorrect statement of Miss Dixon's claim against the appellants was essentially repeated later in the learned Commissioner's reasons. The last sentence in the reasons expressed the learned Commissioner's conclusion that "applying the commonsense approach" [to the question of causation] "I am satisfied that the incapacity from July 1996 was as a result of the work duties performed at Tamar Court" [pursuant to the contract of employment between Miss Dixon and the appellants].

8 Miss Dixon's written reference to the Tribunal reflected the relevant provisions of the Act so far as they concerned her claim to be paid compensation by the appellants. A worker's basic right to compensation is to be found in s25(1):

(a) a worker suffers an injury, not being a disease, arising out of and in the course of his employment; or

(b) a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree -

his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

9 It is the suffering of an injury arising out of and in the course of the relevant employment which gives rise to the liability of an employer to pay compensation, with the additional requirement in the case of an injury which is a disease, that the employment contributed to a substantial degree to that injury. An employer is not liable for compensation with respect to an incapacity caused by the employment generally, nor with respect to an incapacity caused by work duties. Essential to the determination of liability to pay compensation is the quest for the suffering of a material injury (or, if appropriate, a number of material injuries). Concerning Miss Dixon's claim for weekly compensation, there also had to be determined whether her incapacity for work resulted from the material injury. At no place in his reasons for the orders made did the learned Commissioner state or purport to apply the correct legal tests. For the purpose of determining whether it may be inferred that nevertheless the learned Commissioner did apply the correct tests, it is necessary to refer to some of the evidence and some of the Commissioner's findings.

10 It was Miss Dixon's evidence that upon suffering the original injury in February 1993, in the course of her employment by the second respondent, she suffered a sharp pain in the right area of her neck and in her right shoulder. The pain worsened over the next one or two days and as a result she attended a general medical practitioner and took two days off work. She then worked on restricted duties for about two weeks and thereafter returned to full duties as a bar attendant at the Riverside Tavern, at times also doing work as a bottle shop attendant, which involved lifting stock in the bottle shop and carrying purchases for customers. She gave notice of her resignation at the end of 1995 but continued at the tavern on a casual basis until February 1996. She gave evidence of ongoing problems with her neck from time to time which she had attributed to a muscular problem. When her neck or shoulder gave her problems, she would have other employees do the lifting work for her. The pain was always in the same place as it had been at the time of the 1993 injury. The neck pain varied. At times there was none. At other times, the pain was bad enough to keep her awake at night, but most of the time she suffered no pain at all. Heavy work with her right arm increased the symptoms, but at the worst she suffered a feeling of heaviness in the arm and an ache. In the period 1993 to 1995, she needed no further time off work and no further medical treatment. She agreed in cross-examination that after 1993 she had never completely recovered from the original injury as symptoms flared up with activity, but they decreased with rest to a point where there was no problem. Such flare ups occurred about twice a year and symptoms then lasted for about two weeks. She also said that on each occasion she would be aware of what activities she had performed that had initiated such a flare up.

11 In her examination-in-chief she also described as flowing from the 1993 injury tingling sensations in her fingers and toes at night and first thing in the morning, which she had not thought to be abnormal and which she had attributed to being in a state of relaxation following tiredness. In cross-examination she agreed that at about Christmas 1995, she was suffering paraesthesia in her fingers and toes and getting symptoms of weakness in her right arm. She said that at that time she was very busy at the Riverside Tavern and did a lot of work in the bottle shop, and as a result her symptoms increased. She described her work for the appellants at Tamar Court as being similar to the busy periods at the Tavern but unremitting.

12 Miss Dixon commenced work for the appellants as an assistant chef on about 16 January 1996. She gave evidence about her duties and the strenuous nature of some of them at certain times. The learned Commissioner did not accept all of her evidence about those matters, but it is unnecessary for me to pay careful regard to what was and what was not accepted. She described her work for the appellants as including lifting kitchen deliveries, general cleaning and washing up and preparing meals. On occasions a lot of lifting was involved. At times she did waiting work. Sometimes she cut and carried firewood. She described her work generally as being hard. She started getting cramps in her right hand and arm, especially when using tongs in the course of cooking and when performing work as a waitress. Her neck started to get more tender, as did her shoulder. She found it increasingly difficult to work with her head flexed forward and she had difficulty holding a knife. At first she attributed her problems to a need to recondition herself for work as a chef, it being many years since she had performed that work. However, by June 1996 the pain in her shoulder and neck was at a stage where she was finding it difficult to cope, she had lost her appetite and she was feeling drained and suffering a lot of headaches. The tingling sensations in her fingers and toes were getting worse and she was suffering from weakness in her hand and arm. Miss Dixon agreed that there was no specific incident or injury during 1996 which brought about her symptoms. She did not have a pulling feeling in her neck before 1996, nor nerve twitching, both of which she now suffers. She had her other symptoms prior to 1996 but to a lesser extent and they were not constant until 1996.

13 In June 1996, she consulted Dr Clarke and was prescribed anti-inflammatories, but took no time off work then. On 11 July she had a day off work. She was in pain when she went shopping in Devonport. There was a heavy feeling in her arm and shoulder and a burning feeling, which became worse on the journey back from Devonport. Next morning, 12 July 1996, she woke to find that she could not move her neck, right shoulder and arm. She has been unable to work since. She believes that since September 1996, her condition has got worse. Her neck hurts most of the time, pain at some level always being present there. She suffers a pulling sensation through her arm and her fingers and her arm always feels heavy. She suffers pins and needles in the fingers of both hands. She spends a lot of time in bed to ease her symptoms.

14 An issue before the Tribunal was whether Miss Dixon's work duties while employed by the appellants were heavier and more strenuous than those while she was employed by the second respondent. A number of medical witnesses gave evidence and, to a significant extent, their expressions of opinion concerning the cause of Miss Dixon's incapacity depended very much on the history they had been given concerning the nature of her respective duties with those employers. Most of the doctors understood her work with the appellants was heavier. On the other hand, Dr Umberto Rossi, a neurosurgeon called by the appellants, said that it was his impression that the work in 1996 was less physical than previously and that was a major factor upon which he based his opinion that the incapacity was a result of a gradual but natural progression of a pre-existing condition and could not be attributed to anything connected with Miss Dixon's employment by the appellants in 1996.

15 At no place in his reasons did the learned Commissioner articulate a finding as to the precise medical complaint or pathological condition which had caused Miss Dixon's incapacity. It is therefore appropriate that I mention a little of the evidence which I do not understand was in dispute and which explained the underlying condition. According to a report of Mr Daryl Nye, a neurosurgeon, a CT scan of the cervical spine on 6 August 1996 revealed evidence of a right sided C6/7 disc protrusion. An MRI scan on 21 November 1996 revealed degenerative change at C5/6 and C6/7, with more marked disturbance at the lower level, and that confirmed the CT scan's suggestion of a soft disc prolapse of modest proportion on the right side at C6/7. Mr Nye concluded that Miss Dixon had two level disc degeneration, probably complicated by disc protrusion on the right side at C6/7 and resulting in nerve root compression and brachial pain. According to a report of Dr Andrew Maclaine-Cross, a consultant physician, an MRI scan on 18 December 1997 showed a broad based disc bulge to the C4/5 level causing mild anterior flattening of the thecal sac. Uncovertebral joint hypertrophy on the right and a broad based bulge of the disc at the C6/7 level produced mild anterior flattening of the thecal sac and a moderate stenosis of the right neural foramena at this level. Dr Maclaine-Cross referred to there being an intervertebral disc injury. It is unnecessary to refer further to other evidence concerning the precise medical condition causing Miss Dixon's symptoms and incapacity from and after about July 1996.

16 I deal next with the findings of the learned Commissioner. Where words or expressions are in quotation marks, it is because I have thought it appropriate to emphasise the Commissioner's words or expressions. He found that Miss Dixon first suffered an "injury" to her neck in February 1993 (arising out of and in the course of her employment by the second respondent at Riverside Tavern). That injury "set the scene" for all that followed, in that it did not resolve or mend and some activities initiated symptoms of that "condition". Miss Dixon had transient episodes of increased symptoms in relation to her neck and arms, which lasted for up to one or two weeks at a time and occurred twice a year. The range of symptoms expanded over time. Prior to Christmas 1995, there had been occasions when she suffered a range of symptoms and "there was not necessarily a dramatic change in the nature and description of symptoms in 1996". The learned Commissioner said that although symptoms of headaches, nerve twitch around her neck and chest area, increased perspiring and hot wire feelings in her arms were not noticed until 1996, the tingling feelings in her hands and wrists, and on occasions in her feet, and episodes of a weak feeling in her arms occurred prior to 1996. Episodes of pain in her neck and arms had on occasions prior to 1996 been at a level which interrupted her sleep. It was found that Miss Dixon's "condition deteriorated throughout 1996 and in particular in a period June - July 1996".

17 The learned Commissioner was not persuaded that Miss Dixon's duties for the appellants at Tamar Court could be properly be described as "heavier" work than the work she had been doing at Riverside Tavern, and he rejected some of her evidence concerning the heavy nature of her duties for the appellants. He did not accept that her duties at Tamar Court involved repetitive lifting. He found, however, that her duties were different from those performed at the Tavern and involved repetitive right handed manual activity and activity requiring flexion of her neck.

18 The learned Commissioner found that Miss Dixon's "underlying condition ... was aggravated in 1996 and during that period developed to an incapacitating extent". There was a "distinctive change in the worker's conditions in 1996. New symptoms developed and previously suffered symptoms occurred more regularly and to a greater level". The learned Commissioner did not accept that such a development was merely the natural progression of the pre-existing injury. Instead, he was satisfied that the duties performed by Miss Dixon at Tamar Court were of a different nature than those at Riverside Tavern and he accepted the evidence of Drs Nye and Ulman "as to the particulars of those duties which were causative". Although he did "not accept that the work at Tamar Court was necessarily heavy work this need not exclude the nature of that work itself as causative given the lack of evidence of any other explanation for the aggravation of symptoms." He accepted that symptoms suggestive of some form of neurological impingement had been suffered prior to the commencement of the work at Tamar Court, but found that those episodes were of limited duration and did not result in an ongoing incapacity. The symptoms became chronic in July 1996 and from that time Miss Dixon's condition and work capacity were markedly different from what they had been since February 1993.

19 Finally, it was found by the learned Commissioner that Miss Dixon had been totally incapacitated and "applying the commonsense approach, I am satisfied that the incapacity from July 1996 was as a result of the work duties performed at Tamar Court".

20 Before making a determination as to whether the second respondent or the appellants were liable to pay compensation with respect to Miss Dixon's incapacity, the learned Commissioner needed to consider what evidence there was, and whether he accepted it, concerning (inter alia) the nature of the injury suffered by her in February 1993 and the progression of that injury until immediately before the commencement of the employment by the appellants in January 1996. It was open on the evidence to conclude that at that time Miss Dixon was suffering from a disease, the origins of which were at least partly to be found in the 1993 injury. In this regard, the Act, s3(1), defines "disease" as meaning any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development. Although, if the second respondent was liable, that liability arose because of the 1993 injury, which was not a disease in itself, any disease which resulted from the suffering of that injury could have given rise to an incapacity which resulted from the injury (see FAI General Insurance v Morrison [1993] TASSC 115; (1992) 2 Tas R 9 at 19). It is also possible that the origins of whatever disease existed in Miss Dixon's neck in January 1996, predated the 1993 injury. There was evidence that by late 1996 there were degenerative changes, probably two level degeneration, complicated by disc protrusion and nerve root compression, which were causing Miss Dixon's incapacity at that time. That evidence necessarily raised questions concerning the history of those degenerative changes, disc protrusion and nerve root compression. The learned Commissioner needed to consider the extent to which those changes and other physiological conditions were in existence at the outset of 1996, the extent to which they developed or changed thereafter during the time Miss Dixon was working for the appellants and whether that development or change was brought about to a substantial degree by the employment with the appellants. Findings about these matters were necessary before the learned Commissioner could come to a decision as to whether Miss Dixon's incapacity resulted from the 1993 injury or from a 1996 injury connected with her employment by the appellants as required by s25(1).

21 There was no suggestion in the evidence that Miss Dixon's incapacity resulted from her having suffered an injury, not being a disease, arising out of and in the course of her employment by the appellants. Although it may have been arguable that individual injuries occurred in the course of that employment, for example, whenever lifting something heavy, thereby causing further discrete injuries, each a minor one, it was not open on the evidence to conclude that her incapacity resulted from any such injury in a real sense, although it may, of course, have resulted from the combined effects of a great number of such injuries. On the other hand, the evidence raised the question whether Miss Dixon's incapacity resulted from the suffering by her of an injury, which is a disease, arising out of and in the course of her employment by the appellants and to which that employment contributed to a substantial extent.

22 There is no doubt that in February 1993 Miss Dixon suffered an injury, not being a disease, arising out of and in the course of her employment by the second respondent. The learned Commissioner was satisfied of that. However, he made no finding of precisely what the injury was at the time. He merely found that she suffered an injury to her neck. In fact, with one limited exception, to which I will refer shortly, the learned Commissioner made no finding of the physiological changes which occurred in Miss Dixon's neck at the time of the 1993 injury or at any time thereafter. There was no finding as to the precise injuries or diseases which were suffered by Miss Dixon at any time prior to the publication of the reasons. Essentially, the learned Commissioner referred in a general way to the worker's "condition" and to its deterioration and aggravation, and made findings concerning the history of symptoms and of complaints of pain and disability between February 1993 and the hearing. The exception to which I referred was the statement by the learned Commissioner that although he accepted "that symptoms suggestive of some form of neurological impingement had been suffered prior to the worker commencing work with Tamar Court, those episodes were of limited duration and did not result in an ongoing incapacity". Apart from that vague reference to an insult to a nerve, there was no other attempt by the learned Commissioner to describe the nature of the injuries (and of any diseases) suffered by Miss Dixon at any time.

23 Upon the basis of the evidence, the appellants could only have been found liable if Miss Dixon's incapacity had resulted from a disease suffered by her which arose out of and in the course of her employment by the appellants and to which that employment contributed to a substantial degree. When considering whether the incapacity resulted from such a disease, the learned Commissioner was required to consider the state of the evidence concerning whether such a disease already existed prior to the commencement of her employment by the appellants and, if so, the stage to which that disease had developed at that time. He then had to consider the extent to which that disease developed throughout the period of Miss Dixon's employment by the appellants and the question of the extent to which that employment contributed to the development of that disease. Having regard to all such matters, the learned Commissioner then had to consider whether the incapacity he found to exist resulted from the 1993 injury for which the second respondent would be liable or whether it resulted from a disease for which the appellants would be liable.

24 The learned Commissioner found that there was an aggravation of "symptoms" during the time in 1996 when Miss Dixon was working for the appellants, to the extent that when the symptoms became chronic in July 1996, her incapacity for work commenced. It was pointed out by Underwood J in Devonfield Enterprises v Jones A60/1995, that although "aggravation" of an injury is an expression well known to medical science, and the word "aggravation" was used in the definition of "disease" in the Workers' Compensation Act 1927, s3(1), it is not a word which plays any part in the current Act.

25 Until Miss Dixon became incapacitated in July 1996, she could not claim to have suffered a relevant injury arising out of and in the course of her employment by the appellants. That is because s25(5) provides that in the case of an injury which is a disease, that injury shall be deemed to have occurred on the day on which the worker became totally or partially incapacitated. That point was particularly emphasised by Cox J on appeal in Pasminco Australia Limited v Fairchild A75/1991 at 5, where his Honour pointed out that as it is the condition at the time of disablement (incapacity) which must be classified as a disease or not, reference to aggravation or exacerbation or the like of a pre-existing disease may not be helpful. In this case, the learned Commissioner was obliged to consider what, if any, injury which was a disease caused Miss Dixon's incapacity on and after 12 July 1996. If such an injury was found to have been suffered by her, the learned Commissioner had to also consider whether that injury arose out of and in the course of her employment by the appellants and whether that employment contributed to that injury to a substantial extent.

26 It was only after questions such as those were considered, that the learned Commissioner could effectively go on to determine whether Miss Dixon's incapacity resulted from the injury suffered by her in February 1993, for which her employment by the second respondent was responsible, or whether it resulted from an injury which was a disease, for which her employment by the appellants was responsible, as required by s25(1). The resolution of that question required the application of "a commonsense evaluation of the causal chain" (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 per Kirby P at 463, 464).

27 I conclude that the learned Commissioner erred by failing to apply the correct legal tests. It is beyond dispute that his statements of the questions he was determining were erroneous and I am unable to conclude that it may safely be inferred that nevertheless, he did resolve the reference in accordance with law. In my opinion, grounds 1, 2, 4, 5 and 6 of the appeal have substantially been made out. They are:

"1 The Commissioner misdirected himself in that he defined the issue as being whether the worker's incapacity for work was as a result of an injury suffered in February 1993 'or alternatively her employment generally during 1996' with the appellants;

2 In order to find the appellants liable to pay compensation, the Commissioner was required, but failed to make a finding that the worker suffered an injury, not being a disease, or an injury which is a disease, within the meaning of the Workers Rehabilitation & Compensation Act, s25(1);

4 To the extent that it was open to the Commissioner to find that the worker had suffered an injury arising out of and in the course of the employment with the appellants, he failed to properly direct himself as to whether the incapacity for work resulted from that injury;

5 The Commissioner misdirected himself in holding that it was sufficient to create a liability to pay compensation in the appellants, if the worker's symptoms caused by a previous injury were aggravated by her work duties with the appellants;

6 The Commissioner found that an aggravation of the worker's symptoms giving rise to an incapacity for work which aggravation was caused by her work duties with the appellants, of itself created a liability in the appellants to pay compensation;"

28 The remaining question concerns the disposition of the appeal. Counsel for the appellants submitted that it would be inappropriate to remit the reference for re-determination by the same Commissioner and I understood counsel for the second respondent to agree. However, counsel for Miss Dixon submitted that the reference should be remitted to the same Commissioner. I agree with counsel for the appellants. The course proposed by counsel for Miss Dixon could give rise to a perception of bias (see Seablest Pty Ltd v Smith [1997] TASSC 36; (1996) 6 Tas R 350 at 361). Counsel for Miss Dixon further submitted that if the reference is remitted for rehearing by a different Commissioner, that Commissioner should be directed to find that Miss Dixon has been totally incapacitated for work since 13 July 1996, that being a finding which was made by the learned Commissioner on the hearing of the reference which was not attacked by the appeal. On its face that would appear to be fair, but it may not be practical and I did not understand counsel for the appellants to make any submissions concerning it. Before making any orders I will invite further submissions from the parties concerning that point.

29 The appeal will be upheld. In due course, there will be an order setting aside the order made by the Workers Rehabilitation and Compensation Tribunal on 28 August 1998 by which it was ordered that the appellants pay compensation. There will also be an order in due course that the reference is remitted to the Tribunal for rehearing by a different Commissioner. Upon receipt of any further submission the parties wish to make, I will consider what restrictions might be ordered which would prevent the determination once again of the issue of Miss Dixon's incapacity.