Brambles Industries Limited v Bell

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 ss 352, 253, 354

Adler v ASIC [2003] NSWCA 131; (2003) 179 FLR 1 Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Paino v Paino [2008] NSWCA 276 CASES CITED: Republic of Croatia v Sneddon [2010] HCA 14 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157, (2002) 55 IPR 354 Watson v Qantas Airways Limited [2009] NSWCA 322

BRAMBLES INDUSTRIES LTD (Appellant) PARTIES: Timothy BELL (First Respondent) Justine Peta MORRISON and Paul MORRISON t/as MORRISON RECRUITMENT (Second Respondent)

L KING SC/ G BEAUCHAMP (Appellant) COUNSEL: Ms E WOOD (First Respondent) M BEST (Second Respondent)

HWL Ebsworth (Appellant) SOLICITORS: Devine Ens Lawyers (First Respondent) Gillis Delaney (Second Respondent)

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): WCC A1-8807/08

LOWER COURT JUDICIAL OFFICER: Deputy President Kevin O'Grady

LOWER COURT DATE OF DECISION: 17 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Brambles Industries Limited v Bell and Anor [2009] NSWWCCPD 115

• 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298553

HODGSON JA TOBIAS JA McCOLL JA

Tuesday 6 JULY 2010 BRAMBLES INDUSTRIES LIMITED v Timothy BELL and Anor Judgment 1 HODGSON JA: On 17 September 2009, Deputy President O'Grady of the Workers Compensation Commission (the Commission) confirmed a determination of an Arbitrator of the Commission to the effect that the appellant (Brambles) was, and the second respondent (Morrison) was not, liable to pay workers compensation to the first respondent (the worker). 2 Brambles appeals from that decision. Such an appeal lies only where a party is aggrieved by a decision of a Presidential Member in point of law: Workplace Injury Management and Workers Compensation Act 1998, (WIM Act) s 353(1). Leave is not required in this case. 3 I will outline the circumstances giving rise to the appeal. 4 In June 2000, the worker commenced employment with Brambles as a truck driver. On 20 January 2003, the worker suffered an injury to his back when moving a heavy bin. He reported the injury and sought treatment from his general practitioner. It appears he lost no time from work, but he did for some time perform suitable duties in the Brambles office. He then returned to his pre-injury duties. 5 The worker suffered three recurrences of his back disability during 2004 and 2005, the last of them being in November 2005. 6 He ceased employment with Brambles in March 2007, and commenced employment with Morrison in May 2007, again as a truck driver. 7 On 12 June 2007 his truck overturned while negotiating a roundabout, and he sustained multiple injuries including lacerations to his head and neck. A claim for compensation benefits lodged with Morrison was accepted. The worker did not resume employment with Morrison, but on 31 July 2007 commenced work with an employment agency described as Integrated Group, again driving trucks. 8 On 21 September 2007, the worker awoke at home suffering from a recurrence of painful symptoms in his lower back. These symptoms prevented him from going to work and he sought medical treatment. He has not resumed work. 9 A claim for workers compensation benefits was made against Brambles, and was declined. The matter was referred to the Commission, and Brambles applied to have Morrison joined as a respondent. The matter proceeded to a hearing before an Arbitrator who made a determination making provision for an award in the worker's favour solely against Brambles. On 18 June 2009 Brambles appealed from this decision to the Commission constituted by a Presidential Member, pursuant to s 352 of the WIM Act. The Presidential Member determined the appeal without holding any conference or formal hearing, pursuant to s 354(6) of the WIM Act. 10 In his decision, the Presidential Member first carefully reviewed the evidence before him, including statements by the worker, reports by Dr Conrad, a specialist surgeon, a report of the worker's GP, Dr Mechreky, a report of Dr Giblin, an orthopaedic surgeon, a report of Associate Professor van Gelder, a neurosurgeon, and a report of Dr Millons, a specialist surgeon. At paragraph [32] the Presidential Member quoted from the principal report of Dr Conrad of 18 December 2007, as follows: This man was employed by Cleanaway, as a garbage removalist and due to the conditions of work that he did of heavy repetitive lifting of bins, he sustained a back injury, which was clearly an L4/5 disc protrusion as shown on the CT scan on 29 January 2003. This was all confirmed by Dr Matthew Giblin, an orthopaedic Surgeon in his report dated 17 February 2003.

Over the years his conditions of work at Cleanaway aggravated his back pain to the point where he had to leave them and look for lighter work. The accident of 12 June 2007, whilst working at Morrison Recruitment mainly injured his head and neck and may have temporarily aggravated the back pain, but after he made a recovery from the acute symptoms his back pain returned to the level that it was following the conditions of work at Cleanaway. He would have good days and bad days, but basically the pattern of back pain was similar to that period when he left Cleanaway. At this stage, he has ongoing back pain and right-sided sciatica and he should have an up-to-date MRI scan to find out the state of the L4/5 disc protrusion. He needs physiotherapy. 11 The Presidential Member then recorded the submissions before him, and proceeded to make his decision and his findings. The Presidential Member found there were errors in the Arbitrator's decision, and accordingly found it necessary to review the evidence to determine whether the arbitrator's ultimate findings were true and correct, referring to State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [30]. 12 The Presidential Member considered views expressed in the medical reports, and gave his conclusions in paragraphs [94] to [100] of his decision, as follows: 94. I am of the opinion that the evidence establishes, on the probabilities, that following injury in 2003, whilst the worker then suffered from disc damage at two levels being the L3/4 and, in particular, the L4/5 level. there was no relevant disease process in place and I reject the evidence of Dr Millons with respect to his suggestion of there being an antecedent degenerative process. I reach that conclusion having regard not only to the contemporaneous medical evidence but also the absence of any evidence that the worker had suffered lumbar spine symptoms prior to the frank injury in January 2003.

The MRl study dated January 2008, as commented upon by Dr van Gelder, demonstrated disc degenerative changes at the lowest three levels involving some dehydration at L3/4, loss of disc height at L4/5 and a large right intervertebral disc herniation at that level. There is, states Dr van Gelder, a broad disc bulge at L5/S1. I accept Dr Conrad's evidence concerning aetiology and conclude that the changes demonstrated on that MRI scan were initiated by the injury received in January 2003.

It is clear on the evidence that the worker suffered exacerbations of his lumbar disc injury on at least three occasions during his employment with the appellant. One aggravation occurred in 2004 and there were two occasions in 2005. Following each aggravation the worker obtained treatment and resumed normal duties. I conclude that on those occasions the underlying damage occasioned to at least L3/4 and L4/5 of the worker's spine were temporarily aggravated causing a flare up of symptoms and a need for treatment.

Resolution of the question as to whether the worker's involvement in the motor vehicle accident in 2007 is of relevance with respect to causation of his incapacity and impairment presents a number of difficulties. Those difficulties arise by reason of inconsistency in the evidence the worker. In his statement of 3 October 2007 (at [19]) he states that he "did not suffer a lower back injury" in the motor vehicle accident. In contrast to that assertion it is clear that the worker complained to his general practitioner during the weeks following the motor vehicle accident of lower back pain. It should be noted that Dr Mechreky in his report of 9 October 2007 records that following the motor vehicle accident the worker's physical injuries improved and he was able to return to work on 31 July 2007.

The worker reported to Dr Conrad in December 2007 that he had "aggravated his back" in the motor vehicle accident. Dr van Gelder records that the worker informed him that he was having "constant back pain that he ascribed to a motor vehicle accident when he rolled a truck in 2007." That history was recorded during the course of consultation in January 2009.

I have reached the view that the probabilities are that, in addition to injuries to his head and neck suffered in the motor vehicle accident, the worker then sustained an aggravation of the injury to his lumbar spine received in 2003. I conclude also that that aggravation had but temporary effects being provocation of symptoms which resolved at the latest by early September 2007 at which time the worker resumed employment. The nature of that aggravation took a similar course to those aggravations which had been experienced by the worker during the course of his employment with the appellant during the years 2004 and 2005. As recorded by Dr Mechreky the worker, on 18 September 2007 presented with a worsening of back symptoms, the onset of which had been spontaneous, that is that there had been no incident or cause. Those symptoms in my view have arisen by reason of the state of the worker's lumbar spine, in particular the disc prolapse at L4/5 level as demonstrated in the MRI scan. The state of the worker's lumbar spine as shown in that study results from the injury which occurred on 20 January 2003. The subsequent recurrence of symptoms on occasions at work, including that of the motor vehicle accident, have been the result of temporary aggravations of that underlying disc damage. In those circumstances there is no basis for any apportionment of liability to pay compensation as between the appellant and the second respondents.

The appellant is correct to submit that the Arbitrator's statement at [9.6] of reasons that "… the unanimous opinions expressed by the doctors that the causation incident that gave rise to Mr Bell's lower lumbar spine disc protrusion was the incident in January 2003..." is a misstatement of the expert medical evidence before the Commission. Having reviewed that evidence together with the evidence of the worker I am persuaded that the view of Dr Conrad is to be preferred to that as expressed by Dr Millons concerning the question of causation of the lumbar spine injury. Dr Conrad has expressed the view that the motor vehicle accident of June 2007 "mainly injured his head and neck and may have temporarily aggravated the back pain...". Whilst it is true as submitted by the appellant that Dr Conrad's expression of opinion was then made without the benefit of having examined the MRI scan result, it is to be noted that in his report dated 31 January 2008, which was compiled following examination of the scan, Dr Conrad expressly states that he had no change of view since his earlier reports. 13 Brambles relies on the following grounds of appeal: 1. The Deputy President erred in erred in law in acting on the evidence of Dr Conrad to make his finding of causation rather than holding that the report of Dr Conrad dated 31 January 2008 did not furnish probative evidence because it did not explain why the results of the MRI scan of 8 January 2008 did not alter his previously expressed view.

2. The Deputy President failed to give adequate reasons for his finding on causation in that he failed to consider, or properly consider:- (a) the absence of any explanation from Dr Conrad in his report dated 31 January 2008 as to why the MRI scan of 8 January 2008 did not alter his previously expressed view;

(b) the radiological changes which post-dated the injury of 12 June 2007 and their significance with regard to that injury;

(c) or whether the medical evidence as a whole relevantly considered those radiological changes.

3. The Deputy President at no stage found as a fact or facts what the First Respondent's condition was prior to the injury of 12 July, 2007 [sic] and thus did not have a proper premise upon which to base a finding that the Appellant's condition after 12 July, 2007 [sic] returned to its pre-existing state. 14 The submissions for Brambles before this Court identified what were said to be three errors of law. 15 First, there was an alleged error of law in the construction given by the Presidential Member to a report of Dr Conrad dated 31 January 2008. This report noted an MRI scan dated 8 January 2008 as showing a "large" L4/5 level disc protrusion which had "progressed" since a CT scan of 29 January 2003. Dr Conrad's main report dated 18 December 2007 stated that this CT scan showed a "small" disc protrusion at the L4/5 level. It was submitted that the report of 31 January 2008 could not reasonably be read as confirming the opinion, expressed in the earlier report, that the accident of 12 June 2007 did no more than temporarily aggravate the back pain. 16 Secondly, it was submitted that, even if the report dated 31 January 2008 could be read in that way, the opinion so expressed in it was, as a matter of law, inadmissible and/or of no rational probative value, having regard to the principles expressed in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. This was because Dr Conrad failed to give any explanation of why the changes disclosed by the MRI scan of 31 January 2008 did not alter his previously expressed view. 17 Thirdly, it was submitted that there was an error of law in the Presidential Member failing to give adequate reasons for finding that the 2007 accident was not causative of the worker's present disability, in that the Presidential Member did not consider the absence of explanation from Dr Conrad as to the non-significance of the change evidenced by the 2008 MRI scan, or the significance of that change to the question of causation. 18 In my opinion, the first matter relied on could not be an error of law. The question of the correct interpretation of the meaning of Dr Conrad's report is in my opinion a question of fact. In any event, in my opinion it was well open to the Presidential Member to read Dr Conrad's report of 31 January 2008 as confirming the view expressed in the earlier report, that the accident of 12 June 2007 did no more than temporarily aggravate the back pain, impliedly on the basis that the change in the L4/5 disc protrusion from small to large was due to the natural progression of the injury caused in 2003. 19 As regards the second matter, the question of admissibility as such does not strictly arise. Section 354 of the WIM Act states that the Commission is not bound by rules of evidence. Accordingly, this contention can succeed only if the relevant opinion of Dr Conrad was of no rational probative value, and as such, as a matter of law, of no weight. In my opinion, that result does not follow from Makita, particularly in the light of later discussions of that case in cases such as Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157, (2002) 55 IPR 354, Adler v ASIC [2003] NSWCA 131; (2003) 179 FLR 1 and Paino v Paino [2008] NSWCA 276. 20 The expertise of Dr Conrad, the particular field of his expertise, and the location of his opinion in that field, were and are not in question. The assumed facts on which his opinion was based were sufficiently identified. It is true that he did not elaborate on reasons why the MRI scan did not alter his previous opinion, and it may have been preferable if he had done so, at least to the extent of expressly saying that in his judgment the difference between what was shown in the 2003 CT scan and what was shown in the 2008 MRI scan was consistent with the natural progression of the 2003 injury; but in my opinion his omission to give that or some other explanation went only to the degree of weight to be given to the opinion, and did not have the consequence that his opinion was of no rational probative value. 21 Accordingly in my opinion no error of law is shown. 22 As regards the third matter, the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties. In oral submissions before the arbitrator, which were before the Presidential Member, it was put for Brambles that Dr Conrad's report of 31 January 2008 showed a significant development of the back condition in the intervening years, which was particularly significant since the worker worked from November 2005 to June 2007 without any complaint, and that there was "obviously, even on Dr Conrad's review, a modification of his previous opinion". This submission was not repeated in the written submissions to the Presidential Member. These written submissions merely put that Dr Conrad's report of 18 December 2007 was made without access to the 2008 MRI scan. Having regard to the submissions that were put to the Presidential Member, in my opinion it cannot be said that his reasons were inadequate. He fully reviewed all the medical evidence, and in the circumstances of this case he was entitled to give some weight to the relevant opinion of Dr Conrad without giving further explanation of his reasons for doing so. 23 For those reasons, in my opinion none of the grounds of appeal are made out, and in my opinion the appeal should be dismissed with costs. 24 TOBIAS JA: I agree with the orders proposed by the Presiding Judge for the reasons he has given. However, I wish to add the following observations. This is a case where, as the Presiding Judge observes, the issue on the appeal is founded on the contents of two medical reports of a Dr Conrad. I am prepared to assume for the purposes of the following remarks that there is an ambiguity in what is said to be Dr Conrad's opinion on the issue of causation. This ambiguity could have been cleared up between the date of the Arbitrator's decision and that of the Deputy President. 25 Section 352(6) of the WIM Act empowers the Commission, which includes the Deputy President, to grant leave for the adducing of fresh evidence. However no such application was made for such leave by any party in the present case. It is not unusual in cases such as the present, as well as in personal injury cases in the District Court, for medical reports to be tendered without any oral evidence being called from the authors of those reports, whether to supplement their contents or to challenge the opinions expressed. 26 The result is that the judicial officer hearing the case is unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified. The costs of obtaining a supplementary medical report will pale into insignificance against the costs of litigation resulting from a failure to carefully consider the relevant evidence in a timely and efficient manner. 27 The present case should serve as a lesson and, hopefully, a wake-up call to those who practice in the personal injury area, to ensure that if no oral medical evidence is to be called and reliance is to placed solely upon medical reports, that those reports are clear in the opinions expressed and that the reasoning supporting those opinions is complete. That would avoid appeals of the nature of that in the present case with consequent saving of costs to the parties and court resources. 28 McCOLL JA: I agree with the orders Hodgson JA has proposed and with his Honour's reasons. I also agree with Tobias JA's additional remarks. I too would make one additional remark. 29 As Hodgson JA has said, the point which was critical to the appeal concerning the criticism of Dr Conrad's third report of January 2008 was not a matter which was raised before the Deputy President in written submissions, and to the extent, if at all, that it had been raised in oral submissions before the Arbitrator, which were also before the Deputy President, it was raised in very obscure terms. 30 A tribunal such as the Workers Compensation Commission, sitting as the Deputy President was, which depends heavily on the parties' written material for expeditious disposition of proceedings, must be entitled to rely upon the matters placed before it identified in the written submissions as the issues to be determined on a review pursuant to the Workplace Injury Management Act 1998. More importantly, a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88]. 31 HODGSON JA: The order of the Court is, appeal dismissed with costs. oOo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.