Workers Compensation Tribunal (SA)|2004-04-23

Lavers v Workcover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Rw Miller and Co) [2004] SAWCT 44 (23 April 2004)

Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (RW Miller and Co) [2004] SAWCT 44

HEARING DATES: 4 August 2003 (Written submissions 12 August 2003 and 14 August 2003) and 26 March 2004

JUDGMENT OF: His Honour President Judge WD Jennings,

Appeal to Full Tribunal - Two injuries to low back on different dates and with different employers - Whether there was basal evidential material to find incapacity resulting from first injury spent before occurrence of second injury - Whether occurrence of second injury and incapacity abrogated the effect of first injury and incapacity if not spent - Whether question of law arises on this issue - Whether adequate reasons for decision - Whether question of law arises on this issue - Extensive examination of evidence in the light of the Deputy President's findings - The principles of re-examination explained - Extension of time - Appeal allowed but on divergent grounds - Referred for retrial - S 36 Workers Rehabilitation & Compensation Act 1986

Papps v Police [2000] SASC 183 and Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 4

Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282

Wardleworth v Green [1996] SASC 5720; (1996) 66 SASR 421

Mitsubishi Motors Australia Limited v Kowalski (1997) 69 SASR 75

State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd & Ors [1999] HCA 3; (1999) 160 ALR 588

WorkCover v Zanini [1999] SAWCT 125;

Grantham v BHP Co Ltd [2000] SAWCT 21

John Smith v WorkCover Corporation [1997] SAWCT 10

Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321

Williams v Australian Frontier Holidays [1998] NTSC 84; (1988) 147 FLR 157

MMI Workers Compensation v Lewis [1999] SAWCT 112

Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146

Woolworths Ltd v Allen & Another [1988] NSWCC 2.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

R v District Court of the Metropolitan District Holden at Sydney Ex parte White [1966] HCA 69; (1966) 116 CLR 644

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 220

Wilcocks v Comcare [2001] FCA 1315

Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

South Australian Police Department v Barber [2001] SAWCT 100

WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd (Adelaide Casino Pty Ltd) v Paul Hunter [2003] SAWCT 63

The Smith's Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48

Bratovich v Rheem (Aust) Pty Ltd (1971) 2 SASR 33

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

McKechnie v Broken Hill Proprietary Company Limited (1980) 23 SASR 68

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1984-1985) 155 CLR 171

Suters v Australian Postal Corporation (1992) 28 ALD 320

Repatriation Commission v Perrot [1984] FCA 139; (1984) 53 ALR 690

Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365

Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120

R v Lavery (No 2) (1979) 20 SASR 430

1 In action number 520 of 1998, Mr Simon Peter Lavers ("the appellant") by claim for compensation dated 4 November 1997, claimed compensation in respect to an injury sustained on 7 July 1997. That application was rejected by determination of Allianz Australia Workers' Compensation (SA) Ltd ("the respondent") dated 14 January 1998.

2 One of the issues for determination was for the learned Deputy President to determine whether the injury in July 1997 ("the second accident") was compensable against the respondent by virtue of the worker having sustained a compensable disability in 1994 ("the first accident").

3 I respectfully adopt the background and sequence of events as detailed by the majority in pars 48 - 58 of their Reasons for Decision.

4 I also refer to par 59 of the majorities' Reasons and the learned Deputy President's critical conclusions as set out therein.

5 Pursuant to s 86 of the Workers Rehabilitation and Compensation Act 1986, appeals to the Full Tribunal are restricted to questions of law.

6 Mr Warren, counsel for the appellant, made detailed oral submissions on 4 August 2003.

7 Because of a late amendment to the Notice of Appeal, Mr Crawley, counsel for the respondent, submitted written submissions dated 11 August 2003. Mr Warren replied to those written submissions on 14 August 2003.

9 Mr Warren referred to the learned Deputy President's finding in par 44 of his reasons for decision:-

"The worker's clearance for heavy work at sea in October 1996 by his general practitioner and also treating orthopaedic surgeon and his proven capacity to then perform that work over the next eight months are, in the circumstance of this case, compelling indicators that the physical consequences of his injury sustained in March 1994 had been spent by the time he resumed work in early November 1996. The circumstances of the worker's injury in the ship's engine room on 7 July 1997 (the worker's claim form briefly recording that `the job was located in awkward position and involved heavy and awkward lifting') can be taken as indicative of the worker's duties on board and would likely test a healthy back. There is nothing in the evidence to cause me to think that he would not have been able to continue in this work had the incident of 7 July 1997 not occurred. By reason of his degenerate lower spine, he may well have been vulnerable to injury by trauma, but there is no compelling evidence to support a finding that his condition was, prior to 7 July 1997, unstable, or that his injury on that date and its sequelae would not have occurred but for his prior injuries."

Mr Warren said the finding that the injury sustained in the first accident had been spent by November 1996 is crucial ("the crucial finding") in determining the issue of causation and he submitted that finding could not be supported on the evidence.

10 Mr Warren submitted in relation to the crucial finding that there was simply no evidence to support it and that this constituted an error of law. In support thereof he made the following submissions and referred to the following evidence:-

* The appellant's evidence is to the contrary (AB 48 - 52, 61 - 62, 66, 76 - 78, 81 - 82, 85 - 86 and 248 - 253). He noted that the learned Deputy President did not make any adverse credit findings in relations to the appellant.

* The history recorded by Dr Guirguis in his report dated 23 June 1997 (following Dr Guirguis' examination of the appellant on 2 May 1997) is the most cogent and contemporaneous history of the appellant's condition prior to the second accident, and is to the contrary. In this report Dr Guirguis said of the appellant "He continues to experience acute aggravations of his lower back and occasional top of legs pain. The leg pain takes a few days to settle down but the back pain could take up to a few weeks. The last acute attack was 5 weeks ago" (AB 170 - 171) (Dr Guirguis' evidence, AB 319 - 320).

* Dr Guirguis' opinion is to the contrary (AB 172 and 329). Mr Warren noted that the learned Deputy President did not find that he did not accept Dr Guirguis' opinion.

* Properly understood, Dr Hall's opinion is not consistent with the crucial finding (AB 288 - 289). In his report dated 10 December 1996, Dr Hall assigned a permanent residual physical impairment in relation to the appellant's lower back and lumbar spine of 10 per cent (AB 185).

* Dr Jeffries' opinion is to the contrary (AB 263). Mr Warren noted that the learned Deputy President did not find that he did not accept Dr Jeffries' opinion.

11 The second error of law he submitted was that the learned Deputy President failed to give adequate reasons for his decision and in this context failed to give any reasons as to why he rejected certain evidence which was capable of supporting a finding of an ongoing incapacity from the first accident.

12 He relied upon the authorities of Papps v Police [2000] SASC 183 and Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 as authority for the need to give adequacy of reasons, ie. firstly to enable the appellate Court to discharge its functions and to enable it to assess whether or not there has been an error of law in the reasoning process as adopted at first instance and secondly that justice is not only done but is seen to be done.

13 He referred in particular to the evidence of Dr Guirguis and that of the appellant and submitted that the learned Deputy President did not explain why on the basis of that evidence there were not ongoing effects from the first accident.

14 He referred to pars 44 and 45 of the learned Deputy President's Reasons (par 44 which contains the crucial finding) and submitted that the learned Deputy President's reasoning completely ignored all of the evidence to the contrary (ie. that there were ongoing effects) without giving reasons therefor.

15 He also referred to the use of the word "overwhelmingly" as used by the learned Deputy President in par 55 of his Reasons for Decision (ie. his finding that the worker sustained a new and distinct injury in July 1997) and submitted that again the lack of reasons in his decision or the lack of an explanation by him as to how he reached that conclusion equated to an error of law. He submitted because there was a great deal of evidence to the contrary the learned Deputy President was required to provide an explanation or reasons as to how he reached his conclusion.

16 The third issue, which Mr Warren properly conceded was of "less moment", was that the learned Deputy President failed to allow re-examination or re-opening of the worker's (appellant's) case.

17 Mr Crawley's written submissions can be summarised as follows:-

* The learned Deputy President correctly stated the issue for determination as to whether the appellant's incapacity for work after the second accident resulted from his injury in the course of his employment with the employer at the time of the occurrence of the first accident (7 March 1994) (Reasons for decision par 4).

* The determination of this issue is a question of fact: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 4.

* The learned Deputy President correctly identified the principles to be applied in determining that question: Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282 at 289, 292; Wardleworth v Green [1996] SASC 5720; (1996) 66 SASR 421.

* The learned Deputy President correctly identified that whilst medical opinions are of assistance, it remains the Tribunal's task to determine whether on the whole of the evidence the balance of probabilities indicates that the worker's incapacity for work after the second accident resulted from his injury on 7 March 1994: Reasons for decision par 53; and he relied on Dahl and Anor v Grice [1981] VR at 522.

* The finding of His Honour that:_"_The evidence in this matter points overwhelmingly to the conclusion that the worker sustained a new and distinct injury in July 1997 and that this alone was responsible for his resulting incapacity for work from that date" (par 55 of decision, AB 375) was reasonably open to him on all of the evidence.

In support thereof Mr Crawley took the Full Bench to the following evidence.

The evidence of Dr Hall was that following surgery, the appellant reported to him that he was completely relieved of pain in the back and in the right leg:-

"He said he was completely relieved of pain in the back and in the right leg and the note I made at the time was he thought he had a good chance of obtaining a job as a small ship operator off Kangaroo Island, so I cleared him for that work. I did tell him at the time to use commonsense and not to try to strain his back, but I did clear him for full normal duties."

The appellant agreed that following surgery, he had made a very good recovery and was basically symptom free.

"I had a very good recovery, yes; yes, basically symptom-free." (AB 248)

The evidence of the appellant at Arbitration was that after the surgery he lost the right leg pain and the back had subsided to a situation where it did not worry him.

"Q And did that ever involve the legs or had those symptoms completely gone after the surgery.

In his report of 10 December 1996, Dr Hall said that he had provided a certificate for the appellant for a return to work without limitation.

"I understood that he had an opportunity of obtaining a job as a small ship operator off of Kangaroo Island and I subsequently provided him with a certificate dated the 16th October, 1996 which allowed him to return to work without limitations. I have not reviewed Mr. Lavers since." (AB 185)

Dr Hall's evidence was that irrespective of the 1994 injury and 1996 surgery, the events in 1997 were the sort of activity likely to cause the appellant problems with his back:-

"A. Physically how's the disc? The disc is still degenerate. There would be scarring around the nerve from the surgery and the disc is not in a better condition than it was prior to surgery. In fact, overall, probably if anything, it's in a slightly worse condition, having been weakened a little by the surgery, so the actual physical state of the disc is probably worse following the surgery, to be honest about it, but the reason for undertaking the schedule was to remove the pressure from the nerve to reduce the sciatic symptoms of pain down the leg, which was successfully achieved.

It's possible after having part of the disc removed to return to heavy physical work in some cases, not in the majority of cases. Often in workers compensation cases, it doesn't occur at all, but in Simon's case, it was actually very good after that surgery and felt strong and willing to go back to normal work. I never stand in the way of someone that wants to return to work, so I cleared him to do that." (AB p288-289)

Mr Crawley submitted that there was no overwhelming evidence to the contrary:

* He submitted the fact that Dr Hall ascribed to the appellant a 10 per cent permanent residual disability is not inconsistent with a cessation of incapacity. Furthermore Dr Hall indicated that his views expressed in evidence should be preferred to the views expressed in his earlier reports.

"Q So any views that you have expressed prior to that might need to be revised. I'm not suggesting there are differences, but the view you expressed today would need to be preferred, you would suggest, in light of that MRI finding.

* A determination of a compensating authority of permanent residual disability would not be inconsistent with a finding of cessation of incapacity and in any event would not operate as an estoppel: Mitsubishi Motors Australia Limited v Kowalski (1997) 69 SASR 75.

Whilst the Learned Deputy President did not specifically accept or reject any medical opinion, ultimately his findings were based upon a preference for Dr Hall's preferred opinion as to the cause of the worker's low back and leg symptoms after July 1997 as being from the L4-5 disc rather than the 1994 injury: Reasons for Decision (par 53) and AB 297.

18 Central to Mr Crawley's submission was that the appeal does not raise a question of law and in support thereof made the following submissions:-

* The learned Deputy President comprehensively reviewed all the available evidence and as such his conclusions could not realistically be challenged: State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd & Ors [1999] HCA 3; (1999) 160 ALR 588.

* It is not sufficient for the appellant to show that the conclusion contended for on his behalf was open on the evidence, for that would not show that the learned Deputy President's conclusion was erroneous in law: WorkCover v Zanini [1999] SAWCT 125; Grantham v BHP Co Ltd [2000] SAWCT 21.

* Unless it is clear that the learned Deputy President's decision resulted from misdirection or a misapplication of the relevant legal principles, no question of law arises: John Smith v WorkCover Corporation [1997] SAWCT 10; WorkCover v Zanini (supra); Grantham v BHP (supra); Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146.

* The question of law is limited to the legal effect of the facts found. The question is not whether the learned Trial Judge ought to have decided the case in the appellant's favour, but whether he was bound in law to do so: Bill Williams Pty Ltd (supra at 154 and 156).

* In relation to a finding of fact, there will be no error of law unless there is no evidence to support the finding made: Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321; Warrior v WorkCover Corporation S6893; Williams v Australian Frontier Holidays [1998] NTSC 84; (1988) 147 FLR 157; MMI Workers Compensation v Lewis [1999] SAWCT 112.

19 Mr Crawley submitted (in par 7 of his written submissions) that the Reasons for Decision of the learned Deputy President "adequately addressed the issues and the findings made"; the reasons given were "coherent, intelligible and comprehensive "and that this Tribunal" is able to ascertain the reasoning upon which the decision is based".

20 On 23 March 2004 a letter was sent on behalf of the Full Bench to counsel in the following terms:-

"The Full Tribunal wish to hear the submissions of counsel on the appeal. The respondent's counsel is invited to address on matters including: -

1. What basal evidential material existed to support the conclusion that any incapacity flowing from the injury sustained in March 1994 had been spent by November 1996 (viz para 44 of the reasons for decision).

2. Whether on current authorities describing the principles there exists any notion of proximity as a requisite to causation (para 45 of the decision).

3. Whether there is any basal evidentiary material to justify the statement that the conclusion is overwhelming that the worker sustained a new and distinct injury in July 1997 that alone was responsible for any (ongoing) incapacity for work (paras 55 and 56 of the reasons for decision).

4. Whether the circumstances require an approach as informed by the examination of the authorities in Wardleworth v. Green [1996] SASC 5720; (1996) 66 SASR 421 see Doyle CJ at 431-435.

5. How the report of Dr Guirguis following his attendance on 2 May 1997 can be accommodated, in particular his conclusion that the state of incapacity of the worker was no better than when seen on 1 September 1995.

6. Whether if the learned Deputy President has misunderstood the effect of parts of the evidence and/or reached conclusions without basal evidential material that constitutes a question of law.

7. Whether the appropriate order, if the appeal is upheld, is for the matter to be remitted for re-hearing and if so to the same or a different Deputy President.

Counsel should not regard this letter as exhaustive of the matters that may be addressed. It is not the Full Tribunal's intention to limit the matters the subject of submissions. The purpose of the letter is to assist counsel given the lapse of time since last listed."

21 Counsel were also referred to the authority of Woolworths Ltd v Allen & Another [1988] NSWCC 2.

22 The Full Bench heard further oral submissions, primarily from Mr Crawley, on the 26 March 2004.

24 In relation to the application of the proper or correct legal principles Mr Crawley submitted that the two key conclusions of the learned Deputy President contained in pars 55 and 56: viz

"55 The evidence in this matter points overwhelmingly to the conclusion that the worker sustained a new and distinct injury in July 1997 and that this alone was responsible for his resulting incapacity for work from that date, at least until his further injury in July 1998. It was this injury that in the shared opinion of Dr Hall and Dr Guirguis rendered him unfit for heavy manual work.

56 I am satisfied and find on the evidence that the worker's incapacity for work after 7 July 1997 did not result from his work injury on 7 March 1994 whilst in the employ of Miller. The Corporation's determination dated 14 January 1998 is confirmed."

were factual findings. He submitted that the learned Deputy President had correctly addressed the authorities (in pars 6, 7 and 8 of his Reasons for decision) and that there was evidence or a "version thereof" which supported the learned Deputy President's findings and conclusions.

25 He referred to the learned Deputy President's findings in par 44 of his Reasons for decision (set out in par 9 of these Reasons for Decision) and submitted the learned Deputy President could properly on the evidence, make those findings.

26 He referred to the evidence-in-chief of the appellant (AB 52) which was:-

A. From the time I started, about the first six months or so with BHP were good. There were no real problems. I was able to manage anything that did come up. However, I then started to experience minor aggravations. These I notified the bosun on board about and he modified my duties on board the ship to take that into account."

Mr Crawley submitted that the evidence of the appellant himself was a sufficient basis for the learned Deputy President to find as he did that the physical consequences of the worker's injuries sustained in the first accident had been spent by the time he resumed work in early November 1996. He submitted that it was after some six months of his commencing work at BHP that the appellant spoke to the bosun about some problems he was experiencing with his back. He referred again to and relied upon the evidence of Dr Hall (AB 288) ie. Dr Hall had given to the appellant a clearance (Ex R2) for work and that he didn't place any restrictions on his physical activities (AB 289).

27 As to the learned Deputy President's use of the word "overwhelmingly" in par 55 of his reasons, Mr Crawley submitted that it was not necessary for the learned Deputy President to use that word, however it demonstrated that he was clearly satisfied that the worker sustained a new and distinct injury in 1997.

28 In response Mr Warren also relied upon his earlier submissions ie. that there was simply no evidence upon which the learned Deputy President could make the finding that he made in relation to the injury in relation to the first accident being spent by November 1996.

29 In relation to what constitutes a question of law I refer to the written submissions of Mr Crawley which are set out earlier herein (par 18).

30 In addition I refer to the following authorities:-

Woolworths Ltd v Allen & Another [1988] NSWCC 2 per Kirby P:-

"It is arguable that there should be appeals on questions of fact in at least some appeals from the Compensation Court and from other subordinate tribunals. Mahoney JA has recently pointed out that review of decisions of fact would sometimes be suitable upon an `appropriate structuring of the justice system'. Decisions of fact may sometimes disguise important considerations, e.g. considerations of policy. This was pointed out by his Honour in Australian Iron & Steel Pty Ltd v. Najdovska (1988) 12 NSWLR 587. I earlier said something similar in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. However, the rigorous standard to be applied to appeals to this Court from the Compensation Court is as was stated by Glass JA in Azzopardi at 156. Even a conviction by this Court that a decision on the facts is perverse or illogical may not be disturbed in this Court if there was evidence upon which the Judge, applying the statutory formula, could have come to the conclusion which was reached. Facts are the exclusive province of that judge. Their meaning and evaluation is reserved by Parliament to that judge. We may not disturb such findings unless, relevantly, they display an error of law."

Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at p 155 said:-

"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law_: R v District Court of the Metropolitan District Holden_ at Sydney; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654."

Comcare v Moon [2003] FCA 569 per Mansfield J:-

"In any event, in my judgment, the finding of the Tribunal as to the nature and extent to the injury constituted by the condition was one available to it on the evidence. Care must be taken not to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound reasoning: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 220 at 257; Wilcocks v Comcare [2001] FCA 1315 at [6]. If there is any evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact. And the decision as to what evidence is to be accepted is a matter for the administrative decision maker and not for the Court. It is not the function of the Court on an application such as the present to review the Tribunal's findings of fact and to substitute its views of the facts for those of the Tribunal."

Schmid v Comcare [2003] FCA 1057 per Weinberg J:-

"Recent authority suggests that there is a high threshold for treating a finding of fact as giving rise to an error of law. In Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508 at 520 Batt J said:

`... a finding of fact will only be open to challenge as erroneous in law is there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an interference will be open to challenge as being erroneous in law if it was not reasonably open on the facts.'

Critically, want of logic in drawing an inference is not synonymous with error of law.

So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if it appears to have been drawn as a result of illogical reasoning, no error of law will be established; see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ at 355-356.

There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 per Gleeson CJ and McHugh J. The high threshold which must be met in order to establish an error of law on such a basis is not even remotely approached in this case. Whether or not one agrees with the Tribunal's findings on these matters, it is impossible to say that they were not open to the Tribunal to make."

The Full WCT decision of this Tribunal South Australian Police Department v Barber [2001] SAWCT 100 reflects the law as set out in the foregoing cases.

31 It is my view that based on a careful consideration of all of the evidence (and in particular the evidence relied on by Mr Crawley which is set out in para 17 herein) and the findings of the learned Deputy President, that there was some evidence upon which he could properly make the crucial finding and his other ultimate findings and conclusions that have been the subject of the respective submissions of counsel.

32 There is therefore in my view no question of law involved in that aspect of the learned Deputy President's decision.

33 Whilst an important function of Reasons for Decision is to enable an Appeal Court to discharge its obligations on appeal - Pettit v Dunkley [1971] 1 NSWLR 356 and Housing Commission of New South Wales v Tamar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, and in the context of an appeal limited to a quesgtion of law that might suggest that detailed reasons on issues of fact are not required, there has been an increasing recognition in more recent cases for the manifest need for Reasons for Decision to reveal that justice is seen to be done; Papps v Police [2000] 77SASR 210.

34 The Act accords factual findings made by Presidential Member upon a judicial determination a status that is not enjoyed in most other jurisdictions. Findings are not subject to an appeal by way of a rehearing. As the cases that I have previously cited demonstrate, such factual findings can only be reviewed in very limited circumstances.

35 Far from relieving the fact finder of the need to properly explain why particular facts are found, in my view, this status provides all the more reason to plainly demonstrate that all relevant evidence has been considered and on important issues upon which the evidence is divided, to explain why some evidence is accepted or rejected.

36 If this is not done, there is a real risk that justice will not be seen to be done, see for example WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd/Adelaide Casino Pty Ltd v Hunter [2003] SAWCT 63.

37 Whilst I formed the view that there was evidence upon which the learned Deputy President could make the critical finding and reach his other conclusion, I agree without repeating same with the thrust of Mr Warren's submissions set out earlier herein (pars 9 - 16), ie that the learned Deputy President failed to give proper or sufficient or adequate reasons.

38 In my view this is not a case where the totality of the evidence points clearly and overwhelmingly to one conclusion; Hunter (supra).

39 I agree with Mr Crawley's submission that whilst the learned Deputy President "did not specifically accept or reject any medical opinion, ultimately his findings were based upon a preference for Dr Hall's preferred opinion"; this is reflected in pars 43 and 53 of his Reasons for Decision (AB 372 and 375).

40 Consistent however with the requirement that justice must be seen to be done, in my respectful opinion, in this case it was incumbent upon the learned Deputy President to give detailed reasons as to why he preferred the evidence of Dr Hall to Dr Guirguis (I refer to example to what Dr Guirguis said in his report of 23 June 1997, ie that the appellant continued to experience acute aggravation to his lower back and occasional top of legs pain and that the last attack was five weeks ago) and to give reasons why the latter's evidence was either not preferred or rejected.

41 It was also incumbent upon the learned Deputy President to adequately explain the basis for each critical finding, eg that "the evidence in this matter points overwhelmingly to the conclusion that the worker sustained a new and distinct injury in July 1997 and that this alone was responsible for his residual incapacity for work from that date" (AB 55).

42 Whilst there was evidence to support this conclusion, there was a good deal of evidence to the contrary (see Mr Warren's submissions contained in par 10 hereof).

43 In my respectful opinion, the learned Deputy President's reasons do not adequately explain what evidence he relied upon in reaching this conclusion or why the evidence pointing to the opposite conclusion was rejected.

44 The hypothetical reasonable bystander that was referred to in Hunter might reasonably be left with the impression that important evidence was either not considered, or if it was, that it was not accorded the weight it deserved.

45 I stress, as the Full Bench did in Hunter, what is in issue here is not whether the result reached was right or wrong or whether the learned Deputy President did in fact misapprehend the evidence, the issue was whether in light of what the learned Deputy President said and wrote the hypothetical reasonable observer who reflects the parties' and the public's need for justice to be "manifestly and undoubtedly to be seen to be done"; RV Sussex Justices' ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ would consider in all the circumstances this has not occurred.

46 The failure of the learned Deputy President to give adequate reasons on these topics constitutes an error of law. The appeal must therefore be allowed and the matter to be remitted back for re-hearing before another Deputy President.

47 As regards to the other matter in issue, that is the extension of time, and the issues relating to the reopening of the matter before the learned Deputy President, I am content to adopt the reasoning of the majority in relation thereto.

48 This is an appeal from the decision of a learned Deputy President. The case concerns two actions. Firstly a rejected claim dated 4 November 1997. Secondly a discontinuance pursuant to s 36(1)(b) of the Workers Rehabilitation and Compensation Act 1986 ("the Act") of 9 November 1996. The appellant seeks the matter be remitted to a freshly constituted Tribunal for hearing (tr 18).

49 The appellant's challenge to the learned Deputy President's decision can be divided into three essential parts. The first part contends the findings are without basal evidential material or alternatively the evidence has been misunderstood. The second is that there has been a failure to give adequate reasons why certain of the evidence favourable to the worker is rejected. The third is about a refusal to allow re-examination (AB 254).

50 The non-controversial sequence of events is as follows. The worker suffered a low back injury in January 1992 while working on the "Australian Trader" vessel. He was off on compensation for seven days and at that stage the effects of the injury cleared up (AB 365, tr 14). On 13 October 1993, while part of the crew of "Far Sword", the worker sustained a further low back injury and the effects of this kept him off work until January 1994. On 7 March 1994 while a crew member of "Island Seaway" he suffered a third injury to his back. The learned Deputy President describes it in the following terms (AB 366):-

"14 Thereafter, the worker resumed work on the `Island Seaway' commencing 14 February 1994. This was with the employer Miller. He completed his first work period of 11 days. He had the following 10 days off. On the first day of his next work period, 7 March 1994, he experienced gradual development of pain in his lower back with radiation into his right leg. He subsequently consulted his general practitioner who put him off work and referred him to the orthopaedic surgeon, Dr J Lipert. His disabilities were the subject of a claim for compensation under the Act. His claim was promptly accepted by the Corporation and weekly payments commenced."

51 The worker returned to work in June 1994. He was still experiencing difficulty with his back. However as there were no light duties available, Dr Lipert issued him a certificate for normal duties. The worker coped at work for the next couple of months but by August 1994 following continued persistent back and right leg pain Dr Lipert again certified him unfit for work. He did not return to work for another two years. During that time conservative treatment continued .

52 An MRI taken in November 1994 showed evidence of degenerative changes at L4-5 and L5-S1 with central bulges at both levels and impingement on the right S1 nerve group. The worker had a further MRI scan in mid 1996. This indicated deterioration of the L5-S1 disc. The protrusion at that level had become more prominent. It was causing pressure on the right S1 nerve group. On 16 July 1996 Dr David Hall performed a right L5-S1 partial disectomy. Excellent results were obtained with virtual complete relief of the right leg pain and a much improved back (AB 367). The worker described his then low back pain in the following terms (AB 368):-

"Q Was it anything like the dull ache you had before the operation or was it another feeling.

A It was a different feeling. It's hard to explain. Basically prior to surgery the pain was constant, that sort of thing. When you're suffering constant pain, any relief from that it really is brilliant, you know. After that surgery to have lost that right leg pain and to have had the back subside to such a state where I could go scuba diving again and return to my work, you know, the little niggly bits didn't worry me. I could work my way around that."

53 On 16 October 1996 Dr Hall, the treating surgeon, issued a certificate in the following terms (AB 368):-

"Mr Lavers underwent a spinal operation on the 16 July 1996 and has made an excellent recovery.

His symptoms have been completely relieved and he is fit to resume work.

I would place no limitations on his activities and I would not anticipate problems in the future. ..."

54 On 9 November 1996 payments of weekly compensation were discontinued pursuant to s 36(1)(b). Dr Jeffries, the worker's general practitioner, by certificate dated 25 October 1996 stated the worker ceased to be incapacitated for work from that date (AB 143). The worker did not dispute that determination until two years later. His reasons were that he had by then obtained employment with BHP at an income in excess of his previous earnings. Also he was "largely pain free and was generally able to control the pain and discomfort suffered by him by avoiding activities which gave rise to pain and discomfort" (par 27 of the learned Deputy President's reasons). He eventually notified a dispute on 8 September 1998. This formed the basis of the second action and the extension of time application

55 On 7 July 1997, the worker was employed on a ship operated by BHP. Whilst lifting steel deck plates weighing between 40 and 50 kilograms he experienced a twinge of pain in his back. Over the next 24 hours the pain became severe with radiation down his right leg. He was incapacitated by this. The question involved in the first action was whether after 7 July 1997 the worker was suffering any incapacity as a result of the injury of 7 March 1994, (i.e. the contribution question) (par 4 of the learned Deputy President's reasons).

56 The worker conducted the proceedings on the basis that he had never fully recovered from the injury of 7 March 1994. That is, he continued to have some ongoing diminution in the types of labour he could sell from 1994 onwards. He contended the event of 7 July 1997 worsened the incapacity caused by the 1994 incident. Alternatively it was a completely new injury producing separate and parallel partial incapacity. Either way he claimed the 1994 incident and any ongoing incapacity it caused gave rise to an entitlement under the Act independently of any entitlement following the 1997 injury.

57 In his reasons for decision the learned Deputy President did not make any adverse findings as to the worker's credibility. He stated the facts were not in dispute (par 9) noting in par 43 that he had heard oral evidence from the worker. In fact the indications are that the learned Deputy President proceeded on the basis that the worker's testimony was reliable. This was the appellant's contention (tr 23). We regard this contention as correct and it is the basis upon which we approach this appeal.

58 The learned Deputy President noted the worker's testimony that for the first six months of working with BHP he was able to carry out his work. He quotes the following passages from the testimony (par 28):-

"A From the time I started, about the first six months or so with BHP were good. There were no real problems. I was able to manage anything that did come up. However, I then started to experience minor aggravation. These I notified the bosun on board about and he modified my duties on board ship to take that into account.

A Then of course I had that particular aggravation where I had a massive increase in the pain level. It took three to four days to get me home basically. ..."

59 The learned Deputy President went on to deal with the critical conclusions as follows (pars 44 - 56):-

"44 The worker's clearance for heavy work at sea in October 1996 by his general practitioner and also treating orthopaedic surgeon and his proven capacity to then perform that work over the next eight months are, in the circumstance of this case, compelling indicators that the physical consequences of his injury sustained in March 1994 had been spent by the time he resumed work in early November 1996. The circumstances of the worker's injury in the ship's engine room on 7 July 1997 (the worker's claim form briefly recording that `the job was located in awkward position and involved heavy and awkward lifting') can be taken as indicative of the worker's duties on board and would likely test a healthy back. There is nothing in the evidence to cause me to think that he would not have been able to continue in this work had the incident of 7 July 1997 not occurred_._ By reason of his degenerate lower spine, he may well have been vulnerable to injury by trauma, but there is no compelling evidence to support a finding that his condition was, prior to 7 July 1997, unstable, or that his injury on that date and its sequelae would not have occurred but for his prior injuries.

45 The worker's own account of the circumstances and aftermath of his injury on 7 July 1997 (when `I had a massive increase in the pain level') is testament to the significance of this incident in relation to his capacity for work thereafter. It is difficult on the face of the evidence to see the relevance at all of the worker's injury in March 1994. Mr Saies acknowledged that on the surface this was so. A more subtle distinction was involved, he suggested, requiring closer consideration of the pathology behind the worker's condition:-

`I think that's where our respective cases differ. I don't think Mr Crawley could really disagree with the evidence about that. What he says is that you don't need to look at the pathology, that's not so relevant because on the Federation Insurance Case you simply look - you don't look beyond the immediate after effects and whether there is any obvious incapacity flowing in a proximal sense from the respective incidents.

If he's right about that then our case becomes very difficult, other than to the extent that I say there is this fairly-partial incapacity, the niggling effects from October 1996 onwards. I suppose that is the nub of the dispute for your Honour to decide - whether it's sufficient to fit within the reasoning in Federation Insurance v Sheriff (sic) to say - as a matter of commonsense, you can say the injury results from, because there is a pathological contribution that clearly existed'

`There is just no evidence that the effects, pathologically, were spent, albeit Mr Lavers was symptom-free from October 1996 perhaps for some six months. That's quite different, so that my friend really needs to go one step further and show that the injury was healed in the context that that sort of expression was used in the Federation Insurance Case_. We say there is no evidence to suggest he had healed as such, even though the incapacity may not have manifested itself in the lead-up to the July 1997 incident'_.

47 The difficulty with Mr Saies' argument, as exposed by his cross-examination of Dr Hall, is that there is not necessarily any correlation between observed pathology and the symptoms experienced by a worker:-

`Q ... If you had a completely healthy spine then you'd accept, I presume, that he would be better off today by virtue of the 1997 and 1998 incidents then he - - -

A Not necessarily. It's not a directly numerical thing, that events are additive. I mean, it's common to see patients with an absolutely healthy appearing spine that have an incident, have pain, and they may have far worse symptoms than the next person with a very severely degenerative spine, so it doesn't add up like that, I'm afraid'.

48 Thus, Dr Hall's acceptance that the worker's injury in 1994 had, along with other events and circumstances, contributed to the worker's L5-S1 pathology, did not translate into a medical opinion that the worker's pain and consequential incapacity for work following further work injury on 7 July 1997 was caused or even contributed to by his injury in March 1994.

49 In the event, Dr Hall thought it more likely than not that the worker's lower back and leg symptoms since July 1997 were attributable to injury at the L4-5 level and that this injury had occurred in July 1997. This opinion, Dr Hall said, was founded on the findings of the most recent MRI on 1 May 2000 which indicated the development of a large disc protrusion at L4-5 level and `as expected' findings at L5-S1 level consistent with prior disc protrusion at that level followed by surgery.

50 Dr Guirguis did not disagree with Dr Hall's interpretation of the May 2000 MRI findings, and in an earlier report had himself postulated the possibility that the July 1997 incident had also aggravated other intervertebral discs, particularly the L4-5 which had been previously degenerate. The July 1997 incident had, Dr Guirguis reported in December 1998, stopped the worker from returning to heavy manual work and, as he reported in June 1999, `certainly worsened the worker's condition, resulting in him developing recurring mechanical lower back pain and increased susceptibility for aggravation ... and the constant use of MS Contin which he continued to use until recently'.

51 Dr Guirguis reported that the worker had told him in November 1998 that the acute lower back pain sustained by him on 7 July 1997 had been the first aggravation of his back pain since commencing his employment with BHP, and that since this aggravation his back had become quite susceptible to easy aggravation eg on sneezing and lifting and if he walked on an irregular or unstable surface. According to Dr Guirguis, the worker also told him that following the aggravation in July 1997 he had seen his operating surgeon, Dr Hall, who had advised him against returning to normal duties and instead look for light work.

52 It was Dr Guirguis' ultimate opinion that the worker's ongoing lower back and leg symptoms could be caused by the observed disc degeneration at the L4-5 level, at the L5-S1 level, or by a combination of both.

53 On the whole of the evidence I think it is likely that Dr Hall's preferred, but by no means confident, opinion as to the cause of the worker's lower back and leg symptoms after July 1997 is accurate. Whether this be so or not, however, causation in law is different from causation in science: March v V and MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 509; New South Wales (T/a New South Wales Department of Agriculture) v Allen [2000] NSWCA 141 per Powell JA. Whilst the opinions of Dr Hall and Dr Guirguis are of assistance, it remains the Tribunal's task to determine whether on the whole of the evidence the balance of probabilities indicates that the worker's incapacity for work after 7 July 1997 resulted from his work injury on 7 March 1994.

54 Sheller JA (with whom Handley and Beazley JJA concurred) in MLA Holdings Pty Ltd v Smith (1996) 13 NSWCCR 224 at 231 referred to the conclusion `which the sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology', adapting the language of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563 - 564. See also per Powell JA in New South Wales v Allen (supra).

55 The evidence in this matter points overwhelmingly to the conclusion that the worker sustained a new and distinct injury in July 1997 and that this alone was responsible for his resulting incapacity for work from that date, at least until his further injury in July 1998. It was this injury that in the shared opinion of Dr Hall and Dr Guirguis rendered him unfit for heavy manual work.

56 I am satisfied and find on the evidence that the worker's incapacity for work after 7 July 1997 did not result from his work injury on 7 March 1994 whilst in the employ of Miller. The Corporation's determination dated 14 January 1998 is confirmed."

60 Mr Warren, counsel for the appellant, pointed to the learned Deputy President's conclusions based on Dr David Hall's evidence that the event which occurred on 7 July 1997 was an injury at the L4-5 level. That is a new injury. Mr Warren argued that an error of law arose in assuming if there was a new injury distinct and separate from that suffered at L5-S1 then any ongoing entitlement consequent upon the L5-S1 injury was somehow abrogated (tr 17). He submitted the only conclusion open on the evidence was that the worker's entitlement from the incapacity the result of the 1994 incident affecting L5-S1 continued though an entitlement also arose from the incapacity the result of the 1997 injury affecting L4-5: Bratovich v Rheem (Aust) Pty Ltd (1971) 2 SASR 33.

61 Thus according to Mr Warren the true question was whether the 1994 event and its consequences were wholly spent (tr 20). He said that was not attested to by Dr Hall. In fact to the contrary the only conclusion open on the evidence was that the physical consequences and incapacity from the 1994 incident had not been spent. The medical and lay evidence demonstrated ongoing actual limitations. To the extent par 44 of the learned Deputy President's reasons stated the contrary it did not match the available evidence. The actual situation was found in the worker's evidence and the contemporaneous findings by Dr Guirguis (tr 20). The evidence demonstrated ongoing incapacity resulting from the 1994 incident in the months preceding the 1997 incident. Therefore the basal evidential material not only failed to support the learned Deputy President's conclusion but proved the contrary.

62 Consideration of these submissions requires an analysis of the evidence. Dr Hall provided five medical reports (AB 184 - 197). He first saw the worker on 27 May 1996. He conducted the surgery on 16 July 1996. He ceased management on 16 October 1996 (AB 185). He next saw the worker after he sustained injury on 7 July 1997 (AB 190). His written reports attributed the worker's 1997 incident to an aggravation of the 1994 event at L5-S1 level (AB 191, AB 193). Dr Hall regarded the 1994 incident as leaving a permanent residual physical impairment of the lower back and lumbar spine of 10 per cent (AB 185).

63 In evidence Dr Hall varied his opinion by agreeing to the view it was injury at the L4-5 level that the worker suffered in the 1997 event. He explained his opinion in the following passages starting with an observation about the condition of the L5-S1 site (AB 288):-

"Q You reached the point post-operatively, where you cleared Mr Lavers to return to work without restriction.

A Physically how's the disc? The disc is still degenerate. There would be scarring around the nerve from the surgery and the disc is not in a better condition than it was prior to surgery. In fact, overall, probably if anything, it's in a slightly worse condition, having been weakened a little by the surgery, so the actual physical state of the disc is probably worse following the surgery, to be honest about it, but the reason for undertaking the schedule (sic) was to remove the pressure from the nerve to reduce the sciatic symptoms of pain down the leg, which was successfully achieved."

64 In a context that the worker's disc was probably worse following surgery Dr Hall explained the basis of his letter of clearance which allowed the worker to return to work as follows (AB 288-289):-

"Q The letter of clearance you gave to Mr Lavers, exhibit R2, you didn't see fit to put any restrictions on his physical activities, notwithstanding that you've just said that the disc is probably a little weaker after surgery. What was your reason behind that.

A It's possible after having part of the disc removed to return to heavy physical work in some cases, not in the majority of cases. Often in workers compensation cases, it doesn't occur at all, but in Simon's case, it was actually very good after that surgery and felt strong and willing to go back to normal work. I never stand in the way of someone that wants to return to work, so I cleared him to do that.

Q Did you understand his normal work could be quite physically demanding.

A Yes, I knew that and we spoke about that at the time, but he felt confident that he could manage that.

Q At the time you gave him that letter, was he complaining of any ongoing symptoms.

A He said he was completely relieved of pain in the back and in the right leg and the note I made at the time was he thought he had a good chance of obtaining a job as a small ship operator off Kangaroo Island, so I cleared him for that work. I did tell him at the time to use commonsense and not try to strain his back, but I did clear him for full normal duties.

Q When you say `use commonsense and not strain the back', is that something in fact you'd advise anyone.

A Yes, but in his particular case, he's more at risk of injury. We know from the pre-operative investigations that he had not only that disc degenerative, L5-S1, but the disc above. He'd had then a protrusion and surgery on a disc and so he is, in theory, more likely to have a subsequent aggravation of that and this is a very difficult area. To allow people to return to heavy, physical work is potentially treacherous, I suppose, but this is probably the only thing you can do to the spine - the only minor procedure you can do to the spine - and allow a patient to return to heavy, physical work, so I didn't feel uncomfortable about allowing him to do that."

65 Further explanation of Dr Hall's opinion was elicited in respect to the comparative effects of the 1994 and 1997 incidents. Starting with the activity that caused the worker's injury in 1997 Dr Hall testified (AB 291, AB 292):-

"Q Indeed, is that the sort of activity you would probably recommend anyone be careful to avoid if they possibly can.

A Yes, particularly things where you're bent and you're twisting. They are more likely to aggravate the disc.

Q Are you able to say that irrespective of whether he had had the injury in 94 and the surgery in 96 that that sort of activity was likely to cause him problems with his back.

Lavers v Workcover Corporation/Allianz Australia Workers Compensation

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (285 paragraphs)

Lavers v Workcover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Rw Miller and Co) [2004] SAWCT 44 (23 April 2004)

Parties

Legislation Cited (2)

Cases Cited (25)