COOK v MIDPART PTY LTD trading as McDONALDS FORSTER & Anor

Court of Appeal (NSW)|2008-12-05|Before: Allsop P, Ipp JA, Bell JA

Introduction 1 This is an appeal arising under s353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act) raising issues under ss4(b)ii), 9A and 16(1) of the Workers Compensation Act 1987 (NSW) (the WC Act). 2 The terms of ss4(b)(ii), 9A and 16(1) of the WC Act that are relevant to this appeal are as follows: 4 . In this Act: injury : …. (b) includes: … (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and … 9A (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of injury, (b) the nature of the work performed and the particular tasks of the work, (c) the duration of the employment. (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. 16(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury - at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration. Background 3 The appellant, Mr Cook, was born on 25 July 1947. Prior to June or July 1999, he was employed by the second respondent, Great Lakes Aggregates Pty Limited ("Great Lakes") as a maintenance fitter. During the course of his employment, he sustained injuries to his wrists and hands. His injury involved carpal tunnel syndrome, Dupuytren's contractures and median nerve compression. He also suffered from degenerative osteoarthritis in the same parts of his body. After proceedings were issued in the Compensation Court of New South Wales in 2001 against Great Lakes, an award was made, by consent, on 9 July 2002, under which Mr Cook received, from 8 August 2001, and continuing, weekly compensation of $200. Additional lump sum compensation was awarded pursuant to s67 of the WC Act on the basis that the appellant had a permanent impairment of 10% in each of his right and left hands. The consent orders disposing of the Compensation Court proceedings noted that the award was reduced by 50% on the basis of the appellant's pre-existing condition. This reduction was pursuant to s68A of the WC Act, now repealed.

4 Mr Cook, having ceased work with Great Lakes, commenced work as a cleaner with Tempo Cleaning Services. At the time of settlement of the proceedings in the Compensation Court, he was so employed on a part-time basis. In April 2003, Mr Cook commenced to work as a part-time cleaner for the first respondent, Midpart Pty Limited ("Midpart") at a McDonald's restaurant in Forster. In September 2004, Mr Cook's general practitioner issued him with a medical certificate that stated that he was totally unfit for work because of the pain being suffered by him.

The decision of the Arbitrator 5 On 23 February 2007, Mr Cook filed an Application to Resolve a Dispute in the Workers Compensation Commission, seeking orders for additional weekly compensation payments from both Midpart and Great Lakes. 6 On 4 May 2007, a Commission Arbitrator issued a Certificate of Determination pursuant to s294 of the WIM Act, awarding further weekly compensation of $330, payable by Midpart. No variation was made to the earlier Award to which Great Lakes was a party. The Arbitrator said at [44], [46], [47], [48] and [50]-[54] of his reasons: [44] However it is clear from [Mr Cook's] evidence and the history that he gave to Dr Davis that [Mr Cook] continued his employment with Tempo without symptoms after that initial period. … [46] [Mr Cook's] evidence convinces me that it was employment with [Midpart] that aggravated, accelerated and exacerbated the injury to his wrists and hands suffered in the course of his employment with [Great Lakes]. ... [47] I find myself essentially in agreement with the submissions of the Solicitor for [Midpart] that [Mr Cook's] employment with the [Midpart] in which he was earning $330.00 per week was the full extent of his then capacity for employment. The exacerbation of [Mr Cook's] condition of the hands and wrists (half of which was due to constitutional factors) was caused by his employment with [Midpart]. [48] Accordingly, pursuant to Section 16(1)(b) [Midpart] is liable by the employer who last employed [Mr Cook] in employment which was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition of his hands and wrists. …

[50] At the time of his commencement with [Midpart] [Mr Cook] was partially incapacitated but retained a capacity to earn the sum of $330.00 per week in suitable employment. [51] As I have found above his employment with [Midpart] has taken away all that remaining capacity, to the extent that he remains totally incapacitated. However his total incapacity is not entirely the result of his employment with [Midpart] as it is partially due to his employment with [Great Lakes] and also due to constitutional factors. [52] That is, [Mr Cook] is still partially incapacitated as a result of the injuries suffered in the course of his employment with [Great Lakes] and on the material before and [Mr Cook's] evidence do not justify any variation of the Award of $200.00 per week. [Mr Cook] at the time of the commencement of his employment with [Midpart] had the capacity to earn in the sum of $330.00 per week. His employment with [Midpart] was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition of his hands and wrists to such an extent that his capacity for employment is nil. [53] I do not see any basis that calls for the exercise of my discretion pursuant to Section 40. In particular I find the extent of [Mr Cook's] restrictions in employment due to constitutional factors to be accurately and properly reflected in the Short Minutes of 9th July 2002 and I am unaware and I do not believe that there are any other factors that merit the exercise which call for the exercise of discretion. SUMMARY [54] In summary the resolution of the issues in dispute is as follows: • [Mr Cook] did receive an injury arising out of the course of his employment with [Midpart]. • [Mr Cook's] employment with [Midpart] aggravated, accelerated and exacerbated a disease which the Applicant had contracted in the course of his employment with [Great Lakes]. • The weekly amount that [Mr Cook] would have been earning but for the injury is the sum of $330.00 per week. • The amount that [Mr Cook] is able to earn in suitable employment is nil. • There are no matters that call for the exercise of my discretion and accordingly I make an award that [Midpart] pays [Mr Cook] weekly payments of compensation at the rate of $330.00 per week from 29th April 2004. • [Midpart] is to pay [Mr Cook's] costs as agreed or assessed. The Decision of the Presidential member 7 Midpart instituted an appeal from the Arbitrator's decision pursuant to s352 of the WIM Act. The appeal decision was handed down by Acting Deputy President Handley on 2 October 2007. The appeal was conducted on the papers pursuant to s354(6) of the WIM Act. The orders of the Presidential member revoked the order of the Arbitrator and substituted an award for the respondents, with no order as to costs. It is unclear why Great Lakes was involved, given that Mr Cook did not appeal against the refusal to vary the earlier award. The participation of Great Lakes on the appeal to the Presidential member led to its involvement in the appeal to this Court, despite the fact that no orders were sought against it. 8 The appeal to the Presidential member was brought on four grounds, as follows: (1) The Arbitrator erred in law in finding an injury arising out of the course of Mr Cook's employment with Midpart. (2) The Arbitrator erred in law in deeming a date of injury as being the last date of employment with Midpart in circumstances where the deemed date of injury ought properly have been determined as being the first date of incapacity, 8 August 2001. (3) The Arbitrator erred in law in finding Mr Cook's employment with Midpart was a substantial contributing factor to any injury including the aggravation, acceleration, exacerbation of a disease which the Arbitrator had concurrently found to have been contracted in the employment of Great Lakes. (4) The Arbitrator failed to base his decision on logically probative evidence in that he: (a) failed to have regard to the proper weight of the evidence; (b) based his findings on incorrect assumptions with respect to the facts and findings; (c) incorrectly deemed dates of injury pursuant to s15 and/or s16 of the 1987 Act; and (d) based his findings on an incorrect assumption with respect to the facts having accepted Mr Cook's evidence with respect to the light nature of his work with Midpart. 9 After satisfying himself of the appropriateness of proceeding on the papers, and after setting out the submissions of the parties, the Presidential member set out at [27] of his reasons his view of his role on appeal as follows: The role of the Presidential member on appeal is to review the Arbitrator's decision as a whole. The review is not a rehearing. In this case, the Appellant must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error ( Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member's power to interfere with the Arbitrator's decision pursuant to section 352(7) of the 1998 Act. 10 The decision of this Court in Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 at [32] (Hodgson JA, with whom Beazley JA and McColl JA agreed), the discussion in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [22]-[29] (Spigelman CJ, with whom Basten JA and Bryson AJA agreed) and [63]-[66] (Basten JA), and Jeffery v Lintipal Pty Limited [2008] NSWCA 138 at [11] (Basten JA, with whom Hodgson JA agreed) provide powerful support for the proposition that the appeal in s352 of the WIM Act that is to be "by way of review" (s352(6)) is not limited to the identification and correction of error on the part of the Arbitrator. (That is not to say, however, that any demonstrated error would not be persuasive in any appeal.) I will return to the consequences of the approach of the Presidential member at the end of these reasons. 11 At [30]-[33] of his reasons, the Presidential member reviewed the medical and lay evidence in the following terms: [30] Dr John Graham, Occupational Physician, in a report dated 31 January 2006, expressed the opinion that the nature and conditions of Mr Cook's employment as a fitter "would have made a contribution to the osteoarthritis of the hands and consequently the carpal tunnel syndrome". Dr Alan Hopcroft, Surgeon, in a report dated 4 January 2001, prepared for the original Compensation Court proceedings, expressed the view that Mr Cook's carpal tunnel syndrome was "the result of the heavy manual work" performed by Mr Cook, aggravated by the fact that he had been developing bilateral Dupuytren's contracture for many years. Dr Bruce White, Orthopaedic Surgeon, in a report dated 14 December 2000, said Mr Cook's developing carpal tunnel syndrome was directly related to his work. [31] Whilst there is disagreement about the genesis of both Mr Cook's bilateral carpal tunnel syndrome and bilateral Dupuytren's contracture, it would appear that these and the osteoarthritis affecting Mr Cook's hands are 'diseases'. There seems to be acceptance that the osteoarthritis can be aggravated by activity, although there appears to be some disagreement about this in the case of the other two conditions. I note Dr Davis' comment, in his report dated 12 June 2006, and remembering that he also examined and prepared a report on Mr Cook for the original proceedings in the Compensation Court: "Such injuries were present when I examined him earlier in 2001, although he is now suffering with increasing degree of symptomatology, particularly relating to the arthritic changes which have been aggravated as a result of the nature and conditions of his employment as a cleaner with both Tempo and subsequently at McDonalds." [32] On the other hand, Dr Graham, who also examined and prepared a report on Mr Cook for the earlier proceedings, in his later report dated 31 January 2006, expressed his opinion that the three conditions affecting Mr Cook were of a mild nature, and said that "[t]here is no evidence that any of the above conditions have significantly progressed since I last saw Mr Cook". Dr Graham noted that Mr Cook's more recent employment has been of a substantially lighter character and expressed the opinion that "his subsequent employment has not been a substantial contributing factor to the above conditions". [33] Mr Cook gave oral evidence at the hearing. In relation to his right carpal tunnel, he said in cross-examination, that after the surgery, "it was alright for a couple of years, and then gradually it's starting to come again, not as bad what it was before, but you still get numbness in your hands". He said the pain in his hands, which was aggravated by his work, "was gradually getting worse and worse", so he went to see his doctor who advised him to stop work (transcript p5). Mr Cook also said that he and his wife had moved house since he has stopped work, one of the reasons being the difficulty he experienced in mowing the lawns at his previous house, which used to take three hours, as opposed to 15 minutes at his new house. I note the Arbitrator said he was impressed with Mr Cook's evidence and that Mr Cook "appeared to be obviously a very honest and straightforward person" (Statement of Reasons, paragraph 33). 12 After this review of the evidence, the Presidential member commenced an analysis of the Arbitrator's decision. In [34] of his reasons, the Presidential member said the following: In relation to the appeal, I note the Appellant does not dispute that Mr Cook is totally incapacitated for work. The Appellant submits the Arbitrator erred by finding there was one injury but two incapacities. In my view, it is clear from the Arbitrator's Statement of Reasons that he was satisfied that Mr Cook had suffered two "injuries" in terms of the definition in section 4 of the 1987 Act. The first injury was that which occurred in the course of his employment with Great Lakes Aggregates which, on the basis of the medical evidence and the Short Minutes dated 9 July 2002, appears to have been recognised as either a "disease" contracted in the course of his employment, or the aggravation, acceleration, exacerbation or deterioration of a disease in the course of his employment. The second injury was that which occurred in the course of Mr Cook's employment with Midpart, being the aggravation, acceleration or exacerbation of the disease or the further aggravation, acceleration or exacerbation of the disease that constituted the first injury, as, in my view, is clear from the Arbitrator's Statement of Reasons at paragraph 46, quoted above. There is no error in the Arbitrator's reasoning in this regard. 13 It was submitted by Mr Cook that the last sentence of this paragraph reflected a finding of fact by the Presidential member, in agreeing with the Arbitrator, that there was a second injury. Taking this paragraph alone, this would be a reasonable conclusion. When one reads, however, the whole of the reasons, especially [50] and [53], it is clear that the Presidential member did not make that finding, but proceeded on the basis of assuming the correctness of the Arbitrator's finding that there was a second injury - that is, assuming that the aggravation, acceleration or exacerbation of the disease had, as a contributing factor, the employment with Midpart. Given the arguments of Midpart about ss15 and 16 of the WC Act, [34] of the reasons of the Presidential member, and in particular the last sentence of that paragraph, can be taken as an acceptance of the framework of analysis applied by the Arbitrator. 14 The Presidential member then referred to [44] of the Arbitrator's reasons (see above) and the Arbitrator's conclusion that Mr Cook's worsened symptoms did not manifest themselves before employment with Midpart. This can be seen as an important conclusion of the Arbitrator, relevant not only to the finding that there was a second injury, but also to the finding of the likelihood of the employment with Midpart being a substantial contributing factor to that second injury, for the purposes of ss9A and 16(1)(b) of the WC Act. This conclusion as to a period of time without worsened symptoms was criticised by the Presidential member at [37]-[39] of his reasons, as follows: [37] I have been unable to find any evidence in Dr Davis' report or in Mr Cook's oral evidence to support the Arbitrator's finding in this regard. In his Statement dated 15 February 2007, at paragraph 9, Mr Cook said he was still working part-time at Tempo at the time of settlement (9 July 2002), and that he commenced employment with Midpart, cleaning the McDonalds restaurant at Forster, in about July 2003. The work was similar, did not involve any jarring of his hands, and was more convenient in terms of location. Mr Cook said, at paragraphs 12-13: "12. The condition of my hands has continued to deteriorate with time ever since I left Great Lakes Aggregates, with the level of pain gradually increasing and the amount of work or other activities that I am able to do with my hands without them hurting too much gradually becoming less and less over the past 7 years. There has been no sudden increase in this deterioration, just gradual over an extended period. 13. I kept working in the cleaning job, putting up with increasing pain as long as I could …" [38] I have reviewed Mr Cook's oral evidence at the hearing, discussed above. He said that he has "come to accept the condition and, you know, just put up with it" (transcript p 5). In answer to a question in cross-examination about his work with Tempo and Midpart, he said that the pain in his hands "was gradually getting worse and worse", leading to his going to see his doctor who advised him to stop work (transcript p 5). [39] In his report dated 12 June 2006. Dr Davis said:

"With respect to Mr Cook's current impairment, I believe there has been linear contribution throughout his employment, commencing with Temp and continuing through McDonalds with apportioned liability with regards to the duration of employment and hence two thirds to his employment at Tempo and one third to his employment with McDonalds." 15 The Presidential member then, at [40], expressed his conclusion that although there was some evidence to support a finding of deterioration of the disease during the employment with Midpart, … there was insufficient evidence to support a finding that the further deterioration of his disease was due solely to his work with Midpart. On the contrary, the evidence suggests that there was a gradual deterioration of Mr Cook's condition throughout the period he was working as a cleaner for Tempo and Midpart, and it is likely that at least some of that deterioration was due to the natural progression of the constitutional degenerative disease - the osteoarthritis in the joints of his hands - from which he suffers. Nevertheless, the progression of that deterioration is not clear, and the evidence of Mr Cook indicates that he still had a capacity for part-time work at the time he commenced employment with Midpart in July 2003. [emphasis added] 16 The Presidential member, recognising that the question of sole cause of the deterioration was not determinative of the appeal, then moved to the question whether the employment with Midpart was a "substantial contributing factor" to the aggravation or exacerbation of Mr Cook's condition: see ss9A(1) and 16(1)(b) of the WC Act. The Presidential member saw this issue as raised by Midpart's grounds of appeal (see ground (3) quoted above). 17 After considering the meaning of the word "substantial" as interpreted by this Court in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 and Dayton v Coles Supermarkets Pty Ltd [2001] NSWCCR 26 in a manner not complained of by Mr Cook, the Presidential member approached the factual question of substantial contribution. He acknowledged the fact that Midpart did not dispute the Arbitrator's finding that Mr Cook was totally incapacitated. He also acknowledged the Arbitrator's conclusion that this total incapacity was "partially due to his employment with [Great Lakes] and also due to constitutional factors": see Arbitrator's reasons at [51], set out above. At [49] of his reasons, the Presidential member concluded as follows: So the question is whether the contribution to the aggravation of Mr Cook's condition by his employment with Midpart was 'substantial'. Bearing in mind the above discussion of the meaning of 'substantial', I am not satisfied on the basis of the evidence discussed above and, in particular, in the light of there being other substantial contributing factors, that Mr Cook's employment with Midpart could be considered a 'weighty' factor, sufficient to be considered 'substantial'. Thus, in my view, the Arbitrator made an error of fact by giving inappropriate weight to the evidence, and the decision must be revoked. 18 At [50]-[51] of his reasons, the Presidential member also expressed the view that the evidence did not support a finding that any aggravation of Mr Cook's condition was caused by the employment with Great Lakes. He said: [50] In my view, it is also not clear what contribution the natural progression of his disease made to Mr Cook's total incapacity for work as at 24 September 2004. This in turn raises the whole question of whether there was a second injury, namely the aggravation alleged to have occurred during the course of Mr Cook's employment with Midpart. If there was no second injury, then the question raised is whether Mr Cook's total incapacity was due to the injury caused in the course of his employment with Great Lakes, which ended in July 1999, or whether the total incapacity was due to the natural progression of his constitutional degenerative disease. [51] The Arbitrator's finding set out at paragraph 52 of his Statement of Reasons was that although Mr Cook was still partially incapacitated for work as a result of the injury suffered in the course of his employment with Great Lakes Aggregates, he was not satisfied "on the material before [sic - me] and the Applicant's evidence" that any variation of the award made by the Compensation Court was justified. In my view, the Arbitrator's finding on this issue was correct. The evidence does not support a finding that any aggravation, acceleration, exacerbation, or deterioration of Mr Cook's condition was the result of the injury suffered in the course of his employment with Great Lakes Aggregates.

19 The Presidential member concluded as follows at [53] of his reasons: In any event, my having found there is insufficient evidence to support a finding that Mr Cook's employment with Midpart was a substantial contributing factor to the second injury, assuming there was a second injury, Mr Cook's claim against Midpart must fail and an award must be made in Midpart's favour. 20 On 13 November 2007, Mr Cook filed a notice of appeal in this Court pursuant to s353 of the WIM Act.

Issues on appeal 21 The notice of appeal contained ten grounds of appeal, as follows:

(1) The [Presidential member] erred in law when he concluded that the contribution of employment with the First Respondent to the aggravation of Mr Cook's condition was not substantial.

(2) The [Presidential member] erred in law when he decided that employment with the First Respondent was not a substantial contributing factor to the aggravation of the disease when the First Respondent's submissions had not made any submissions in that respect.

(3) The [Presidential member] erred in law when he determined that employment with the First Respondent was not a substantial contributing factor to the aggravation of the disease without giving the Appellant an opportunity to be heard on the subject.

(4) The [Presidential member] erred in law when he failed to identify what factors had contributed to the aggravation of the disease suffered by the Appellant.

(5) The [Presidential member] erred in law when he considered that the natural progression of the disease was a contributing factor to the aggravation of the disease.

(6) The [Presidential member] erred in law when he failed to distinguish between the contributing factors to the aggravation of the disease and the contributing factors to the Appellant's accepted total incapacity.

(7) The [Presidential member] erred in law when he failed to give adequate reasons for concluding that employment with the First Respondent was not a substantial contributing factor to the aggravation of the disease.

(8) The [Presidential member] erred in law when he failed to identify any medical opinion that he relied upon to conclude that employment with the First Respondent was not a substantial contributing factor to the aggravation of the disease.

(9) The [Presidential member] erred in law when he failed to state what medical evidence he had accepted or rejected and why that evidence had been accepted or rejected.

(10) The [Presidential member] erred in law when he found that the Arbitrator had made an error by giving inappropriate weight to the evidence when he had not identified any error with regard to the Arbitrator's decisions to accept or reject various medical opinions.

The arguments of the parties 22 The arguments of the appellant, Mr Cook, as articulated on appeal were reduced to three issues that coincided with grounds 1, 4, 5 and 6 (as to the first issue), grounds 2 and 3 (as to the second issue) and grounds 7, 8, 9 and 10 (as to the third issue). I will deal with these issues in the way they were argued, without precise reference to the terms of the grounds of appeal in the notice of appeal.

The first issue: the asserted flawed approach of the Presidential member to construing s9A of the WC Act 23 The first issue concerned the approach the Presidential member to the analysis of the substantiality of the employment of Mr Cook by Midpart to the relevant injury (the second injury assumed by the Presidential member to have occurred) for the purposes of s9A of the WC Act. 24 It was first submitted by Mr Cook that the Presidential member fell into error by directing his attention to the total incapacity of Mr Cook by 2004, and asking whether the employment with Midpart was a substantial contributing factor to that state of incapacity. The terms of [48] of the Presidential member's reasons were relied on for this submission. If that is what the Presidential member did, there would be legal error vitiating his decision. However, on a proper reading of all his reasons, this was plainly not his approach. As can be seen from the first sentence of [49] of his reasons, the Presidential member focussed upon the question whether the employment with Midpart was a substantial contributing factor to "the aggravation of Mr Cook's condition" ([49]), "the second injury, assuming there was a second injury" ([53]). 25 It was then submitted that this approach was also wrong, because it reflected a misunderstanding of the meaning of ss4, 9A and 16(1)(b) of the WC Act. 26 The words "aggravation, acceleration, exacerbation or deterioration of any disease" in s4(b)(ii) and the substantially identifical expression in ss9A and 16(1)(b) were said not to be apt to include the worsening of the disease by its natural progression. Thus, if, as here, the worker's condition worsened after the first injury by reason of the (deteriorating) course of the condition, that is to be seen as the disease itself manifesting its natural progress, not the aggravation, acceleration, exacerbation or deterioration of the disease. The worsening of the disease captured by each of the four words chosen by Parliament does not and cannot, it was submitted, include the natural course of the disease. In effect, it was submitted that each of these words only encompasses the worsening of the disease brought about by external stimuli. Thus, it was submitted the Presidential member's assessment of the evidence by reference to the possible role of the "constitutional factors", as he did in [48] and [49], was a legal error, because it was the taking into account of a consideration which the WC Act required not be taken into account. 27 Mr Cook submitted that this conclusion was required by the decision of this Court in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451. No other authorities were referred to on this point by counsel (whether for Mr Cook or Midpart). 28 The first respondent, Midpart, submitted that the Presidential member correctly analysed the sections by reference to the worsened state of the disease and that the words "aggravation, acceleration, exacerbation or deterioration" of the disease were apt to encompass (though, of course, not be limited to) the natural progression of the disease and that the task was to assess the substantiality (or otherwise) of employment as a contributing factor to that aggravation, acceleration, exacerbation or deterioration. The second issue: the asserted failure to afford procedural fairness by the Presidential member 29 Mr Cook submitted that the issue of whether or not the substantiality of the contribution of the Midpart employment to the second injury was not a matter properly before the Presidential member and on which he was denied a proper opportunity to be heard. 30 The grounds of appeal before the Presidential member, in particular (3), set out above, might be seen to raise the issue. The appeal to the Commission constituted by the Presidential member was, however, conducted on the papers. Midpart provided its submissions which explicated its grounds of appeal. The grounds of appeal should therefore be read with the submissions, the latter illuminating or particularising the former. The submissions put in support of the grounds of appeal did not contain any assertion that the Arbitrator had erred by concluding that the evidence supported a conclusion as to the substantiality of the employment with Midpart as a contributing factor to the second injury. It was submitted that the Arbitrator had misconceived the operation of ss15 and 16 of the WC Act. Midpart also asserted that there was no evidence to support a finding that there was a second injury and that once a first injury was found the Arbitrator could not find a second injury. These arguments were rejected (see [34] of the reasons of the Presidential member).

The third issue: the asserted failure to give sufficient reasons as to the conclusion that the employment with Midpart was not a substantially contributing factor 31 This point is intimately linked with the first issue. Mr Cook asserted that one could not discern from his reasons how the Presidential member came, or could come, to the conclusion that the employment with Midpart was not a substantial contributing factor.

The second issue 32 Given its serious nature, it is appropriate to deal with the assertion of a denial of procedural fairness first. 33 Looking at Midpart's submissions before the Presidential member, one would be forgiven for thinking that no issue was raised about the substantiality of the employment with Midpart as a substantial contributing factor. 34 Mr Cook, however, did address the issue in his submissions. In response to a paragraph in Midpart's submissions which recited the grounds of appeal, the following appeared in Mr Cook's submissions: The Arbitrator did not err in law in finding the worker's employment with the Appellant was a substantial contributing factor to any injury and based his decision both on undisputed factual and medical evidence before him. The Arbitrator based his decision on logically probative evidence in that he: i. Gave proper regard to the weight of both oral and medical evidence. ii. Based his findings on the oral and medical evidence before him which were factual in nature. iii. Gave sufficient weight to the disease provisions of the Act. iv. Fully accepted the worker's evidence with respect to the nature of the work with the Appellant and made factual findings thereon. 35 These submissions invited the Presidential member to consider the factual material and medical evidence in connection with the question whether the Arbitrator "erred in law in finding the worker's employment with [Midpart] was a substantially contributing factor to any injury". This is how the Presidential member, in fact, read the grounds of appeal. In [42] of his reasons, he said the following: However, this raises another of the Appellant's grounds of appeal: that the Arbitrator erred in law in finding employment with the Midpart was a substantial contributing factor to the injury. Section 9A and the 1987 Act states that no compensation is payable in respect of an injury unless the employment concerned was a "substantial contributing factor" to the injury. 36 Mr Cook placed these questions, whether of fact or law, before the Presidential member, even if they might be seen to go beyond the reach of the submissions of Midpart. The Presidential member dealt with the issues on this basis. Thus, one cannot say that the issue of the substantiality of employment as a contributing factor to any second injury was not before the Presidential member in a way that gave Mr Cook an opportunity to be heard. 37 This ground of appeal therefore fails.

The first issue 38 The phrase "aggravation, acceleration, exacerbation or deterioration of any disease" is a familiar collocation of words in worker's compensation legislation. The definition of "injury" in s6 of the Worker's Compensation Act 1960 (NSW) contained a paragraph using this phrase. The phrase was discussed in detail by Moffitt J (as he then was), with whom Sugerman J (as he then was) agreed, in Federal Broom Co Pty Limited v Semlitch [1964] NSWR 511 at 516ff in terms that received the general approval of the High Court on appeal: Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626. The notion of disease has also been the subject of discussion in many cases: see for example, Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482; Commissioner for Railways v Bain (1965) 112 CLR 246; Favelle Mort Ltd v Murray (1976) 133 CLR 580; MGH Plastics v Zickar (1994) 34 NSWLR 617; and Zickar v MGH Plastics (1996) 187 CLR 310. 39 Whilst it is important to recognise the need to understand the phrase as a whole, the central concept being considered is disease. In Hussey, Dixon CJ said at 496 that the word "covers what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature". In Favelle Mort, Barwick CJ at 587 referred to a "morbid condition of the body". These expressions are apt to encompass the whole medical and physical condition, including the effect or manifestation of symptoms. 40 In Federal Broom, Moffitt J said at 519: Speaking very generally, sub-paragraph (b) to the definition of "injury" is directed to a worsening of the disease, the four descriptions apparently being selected in an endeavour to be comprehensive.

His Honour then proceeded to discuss the phrase distributively. In, if I may say, a valuable discussion of condition, mechanism and symptoms in the difficult context of delusional pain brought about by a schizophrenic condition, Moffitt J said that symptoms often cannot be divorced from the underlying condition - "a symptom may be evidence of what lies beneath" and the symptoms may be the "painful manifestation of the disease" . In the context in which he was dealing with temporary pain (though delusional), Moffitt J said the following at 519-520: A disease which is progressive according to its nature may, by reason of external stimuli, have its progress accelerated. Before such acceleration can be found to have caused incapacity there must be more severe or additional symptoms arising from the acceleration which have produced an incapacity which would not otherwise have existed. In this event there is an incapacity caused by an acceleration of the disease. Symptoms in the case of a progressive disease, however, may be only evidence of the acceleration without producing in themselves any harmful effect in which event there may be an acceleration of the disease with no present resultant incapacity. On the other hand, a disease once contracted may be of a chronic type not subject to any progress or any perceptible progress. If external stimuli or the general nature of the disease, or both, cause the disease from time to time to produce symptoms which incapacitate, then, in ordinary language at that time the disease is said to be worse even although the worsening may be temporary only. The production of incapacitating symptoms, or the intensifying of existing symptoms, to the point of their becoming incapacitating is incapacity arising from a deterioration or aggravation of the disease . There is, none the less, a deterioration or an aggravation of a disease even although similar symptoms of the same severity had been produced by other causes in the past, and even although after the symptoms subside it can be said the chronic condition of the disease is as it was before, and even though it can be said the qualitative condition of the disease has remained the same throughout, and even although the deterioration or aggravation may turn out to have been, or apparently to have been, only temporary. There is no justification for reading into the words "aggravation", "exacerbation" or "deterioration" of a disease, limitations which exclude incapacities which are not associated with some type of irreversible progressive disease. The word "exacerbate" involves the concept of the heightening of an effect upon an individual as where his sufferings increase. There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism. [emphasis added] 41 From these passages, it can be seen that the notion of deterioration or aggravation or exacerbation (though perhaps not acceleration) could encompass the worsening of the morbid condition by external stimuli and also by the general nature or progression of the disease. This is contrary to Mr Cook's submission. 42 This approach was also reflected in the judgments in the High Court. In the High Court at 110 CLR 629, McTiernan J quoted the Compensation Judge (Wall J) with approval in the following respects: "In that view then each delusion generated by the mental disease constituted deterioration in the disease." That, I think expresses the true approach, and I take it to mean that the disease, whether temporarily or otherwise, deteriorated in that symptoms which the applicant either did not have or did have to the same degree immediately before the employment incident, appeared after such incident and had an effect on her, so that her condition of health in a material sense, became worse so she could not work. On the following page (630) McTiernan J then posed the relevant question whether it was open to Wall J to find employment as a contributing factor to the deterioration of the condition. 43 Kitto J at 632 started from the proposition that the word "disease" was of very wide import, comprehending any form of illness. At 633-634 he warned against rolling the four substantive words (aggravation, acceleration, exacerbation and deterioration) into one word such as "worsening". At 634, he said: The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse. Moffitt J placed at least some of his emphasis upon the word "exacerbation", and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. 44 This approach is also contrary to one (as propounded by Mr Cook) that would exclude entirely from consideration as to the content of any of these words all aspects of the progress of the disease or condition or of its symptoms that are referable to the natural progression of the disease or condition, and that are not attributable to external stimuli. Kitto J thought that "exacerbate" concerned the effects which the disease produces in the person, that is the manifestations of the harmful or painful symptoms. This was an ordinary concept to be applied to the person in question and his condition. The relevant enquiry is whether employment was a contributing cause to that exacerbated disease. The exacerbated disease was not defined by the causal connection with external stimuli. That is, the exacerbation was not limited to the worsened state that could be attributed to external stimuli. 45 Taylor J agreed with Kitto J. 46 Windeyer J, likewise, at 636, rejected the strict distinction between the disease and its essence, on the one hand, and symptoms, on the other. At 637, Windeyer J said that whether there has been an aggravation, exacerbation or deterioration of a disease was a question of fact and depended: … upon whether for the sufferer the consequences of his affliction have become more serious. 47 Again, this question was not related to what had been caused by external stimuli. The question was a factual enquiry as posed by Windeyer J. 48 Owen J agreed with Kitto J. 49 The argument of Mr Cook that each of the words "aggravation", "acceleration", "exacerbation" and "deterioration refers only to the additional change to the state of the disease or its symptoms and the suffering or effect they produce on the person that are caused by external stimuli and does not encompass the natural progression of the disease or its symptoms is not consistent with the approach in Federal Broom. It is also not conformable with the ordinary meaning of these words, which imports the notion of worsening, although, as counselled by Kitto J, to be understood as expressed in the four particular words used. The argument is also contrary to the terms of s9A. The terms of s9A(2)(d) and (e), in particular (d), reflect the place that the progression or state of the worker's condition may play in any analysis: see in this regard, the analysis of s9A by Mason P in Mercer. 50 Murray v Shillingsworth does not support Mr Cook's argument. Einstein J at 464-465 (with whom Hodgson JA and Santow JA agreed) was making the point that s4(b)(ii) was concerned with the aggravation of the disease and not the effect of the original non-aggravated disease. That much is clear from the terms of s4(b)(ii). The reasons of Einstein J do not, however, address the question whether the word "aggravation", and the other words used, exclude the worsening of the condition or symptoms by the natural progression of the disease uninfluenced by external stimuli. 51 Here, Mr Cook suffered from bilateral carpal tunnel syndrome, Dupuytren's contractures and median nerve compression in his hands and wrists. He also suffered from osteoarthritis as a constitutional degenerative condition. It is plain that the Presidential member, on the evidence, took the view that this condition was deteriorating and exacerbating over time, without interruption, from the time of the first injury. He directed his attention not to the whole incapacity, but to the aggravated and exacerbated condition. This was the correct approach. In so directing himself, after examining and considering the evidence, and accepting as an assumption that the employment with Midpart was a contributing factor, he was unable to conclude, as a matter of fact, that such employment was a substantial contributing factor to the assumed second injury. 52 This was a factual conclusion open on the evidence. The Presidential member did not misdirect himself in the manner asserted. There was no legal error in this approach. 53 It might perhaps be said that the Presidential member used the words "aggravation", "exacerbation", "acceleration" and "determination" somewhat interchangeably and without precise discrimination. No material error arises from this. The argument of Mr Cook proceeded on the basis that each word was limited to the effects of non-natural progression or of external stimuli. 54 This ground of appeal also fails.

The third issue 55 The requirement of the Presidential member to give reasons was accepted in argument by Midpart. The obligation can be taken to be one measured by the standard in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 268, 269, 271, 273, 278, 280 and 281-82, and the numerous cases applying it. 56 Here, the Presidential member surveyed the medical and lay evidence and concluded from that survey that he was not satisfied that employment at Midpart was a substantial contributing factor to the second injury - that is to the aggravation, exacerbation, acceleration or deterioration of the disease. He disclosed the essential grounds and reasons for his decision. No legal error in disclosed. 57 This ground of appeal also fails.

The question of the approach of the Presidential member to the appeal 58 As I have said earlier, the Presidential member expressed his task in [27] of his reasons as only the correction of error. This view appears to have been, at least partly, shared by the drafter of Midpart's grounds of appeal. Indeed those grounds were expressed as "errors of law". 59 Notwithstanding this expression of approach, in relation to the issue of the substantiality of the contribution of employment at Midpart to the aggravation or exacerbation of Mr Cook's disease (that is, to the second injury), the Presidential member did review the matter for himself by examining the facts. He reached the conclusion for himself that the evidence did not support a conclusion of substantial contribution. That was an approach more in accordance with that suggested in Duinker than with the expression of his task in [27]. 60 The approach expressed by the Presidential member in [27] of his reasons was not a separate ground of appeal. Therefore it is unnecessary to decide the question as to the correct approach to be taken by the Commission in an appeal "by way of review" under s352 of the WIM Act. This should not be taken as intended to throw any doubt on the views of Hodgson JA in Duinker that the authorities clearly suggest that it is not limited to the correction of error. It was unnecessary for the Court in Duinker to decide the issue, as it is unnecessary for us to do so. 61 All the complaints about the approach of the Presidential member have been discussed and all fail to found any interference by this Court. In these circumstances, what might be seen to be an error in expression of the general approach by the Presidential member was not in any way operative in affecting his decision.

Orders 62 The appeal should therefore be dismissed. Mr Cook joined both respondents to the appeal. There is no reason why he should not pay their costs. 63 The order of the Court should be that the appeal be dismissed with costs. 64 IPP JA: I agree with Allsop P. 65 BELL JA: I agree with Allsop P.

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.

Worker's Compensation Act 1960(NSW)

CITATION: COOK v MIDPART PTY LTD trading as McDONALDS FORSTER & Anor [2008] NSWCA 151

Commissioner for Railways v Bain (1965) 112 CLR 246 Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482 Dayton v Coles Supermarkets Pty Ltd [2001] NSWCCR 26 Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 Favelle Mort Ltd v Murray (1976) 133 CLR 580 Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626 CASES CITED: Federal Broom Co Pty Limited v Semlitch [1964] NSWR 511 Jeffery v Lintipal Pty Limited [2008] NSWCA 138 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 MGH Plastics v Zickar (1994) 34 NSWLR 617 Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 Zickar v MGH Plastics (1996) 187 CLR 310

At a glance

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Cases Cited (15)