Workers' Compensation and Rehabilitation Act 1981 (WA), Schedule 1, cl 7

Appeal allowed - the question was whether the further incapacity had resulted from the earlier disability

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

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

Danagher v Racing Penalties Appeals Tribunal (1995) 13 WAR 531

Jackamarra v Krakouer [1998] HCA 27; (1998) 153 ALR 276

Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

Lloyd v Faraone [1989] WAR 154

March v E & M H Stramare Pty Limited [1991] HCA 12; (1990-1991) 171 CLR 506

Migge v Wormald Brothers Industries Ltd (1972) 2 NSWLR 29

Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247

Summit Homes v Lucev (1996) 16 WAR 566

Waterford v Commonwealth [1987] HCA 25; (1989) 163 CLR 54

Western Australian Planning Commission v Lillyville Pty Ltd, unreported; SCt of WA; Library No 990174; 9 April 1999

Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697

1 PIDGEON J: I agree with the reasons to be published by Wallwork J and with the order proposed.

2 WALLWORK J: The primary contention for the appellant in this matter was that he contended that the reasons for judgment of the Review Officer indicated that the Review Officer had thought that he had to make a choice between whether the appellant's disability early in 1997 was a fresh injury or a continuation of an earlier disability. It was submitted for the appellant that that was the wrong question for the Review Officer to have asked and that the correct question had been to decide whether the 1997 incapacity had resulted from the 1996 disability.

3 The claim before the Review Officer had arisen from the appellant's claim in a document dated 10 April 1997 which read as follows:

"Lower back injury July 1996. Insurers (GIO) accepted liability. January 97 re-aggravated injury whilst at home. Insurer not accept liability. I believe liability should be accepted because my injury was not 100% resolved. (See Connaughton's report dated 11 February 1997)."

4 It was contended for the appellant that nowhere had the Review Officer posed the question whether the 1997 incapacity had resulted from the 1996 disability.

5 It was submitted for the appellant that the Review Officer had been misled by two medical reports which had been directed to something other than the true question. Further, that the error alleged had resulted from an application of the reasons for judgment in Canale v Commissioner of Main Roads (1982) 1 WCR (WA) Vol 1 Pt 1 163 which it was contended was not a decision about whether a subsequent incapacity had resulted from an earlier disability, but had been more involved with the question of determining liability between two different employers and the distinction as it then had been under the Act, between a fresh disability and a recurrence of an old disability."

"Considerable confusion often arises as to what is a recurrence of an old injury, and what should be regarded as a new injury. It is not possible to lay down any rule to completely answer the problem in the multitudinous circumstances from which it arises. Generally however, I would say that an injury or condition recurred where it flared up either spontaneously or because of the ordinary stresses and strains of living and working, and that any consequent incapacity would be related to the original accident. On the contrary, even though the first injury left a weakness, even a great weakness and a potential sign of trouble, where that trouble is precipitated by a new incident of an accidental nature such as could well originate trouble in its own right, then that trouble should be regarded as a new injury for which the later incident is the direct cause."

7 It was submitted for the appellant that that had not been the correct test to apply in this case. Reliance for the submission was placed on the words of the decision of the Review Officer who said:

"In a follow-up report issued by Dr Connaughton on 30 April 1997 he stated that he did not believe that the latest episode flared up either spontaneously or because of the ordinary stresses and strains of living and working. He said that the incident on 12 January 1997 was a specific lifting activity which he believed could well originate injury in its own right and be regarded as a fresh injury. Nevertheless he added that it was his view that the applicant's prior problems would have predisposed him to such a further injury."

8 It was contended that it could be seen from the wording of that paragraph of the learned Review Officer's reasons, that they were words based on the reasons of the Chairman in the Canale decision.

9 It was submitted that in this case Dr Connaughton also had been giving his interpretation of the facts based on his understanding of the law as set out in Canale.

10 The Review Officer when discussing Dr Marsden's evidence said:

"Dr Marsden noted that the applicant had remained off work for some three months after this latter event indicating to him that it was a significant injury event in its own right."

"Dr Marsden added that the applicant clearly suffered a significant injury at home at a time when his back had almost completely settled from the previous injury and that this injury could have been an event in its own right as a new injury circumstance."

12 It was said that again that language reflected the reasoning in Canale.

13 Reference was also made to a paragraph in the conclusion of the Review Officer's reasons where he had said:

"Dr Connaughton and Dr Marsden on the other hand were ad idem in that they both considered the applicant's latest injury (sustained at home on 12 January 1997) was a fresh injury even though he was predisposed to further problems following his work caused disability. It was nevertheless the case that both medical practitioners were of the view that the activity undertaken by the applicant on 12 January 1997 could well originate injury in its own right."

"In addition there was new pathology at the L3/4 and L5/S1 levels, all of which would tend to support the conclusion reached by Dr Marsden and Dr Connaughton that the incident in January 1997 was such that it could well cause injury in its own right."

15 It was submitted that there had been a clear link between those words of the Review Officer, what the doctors had said in their opinions and the reasons in Canale.

16 It was pointed out for the appellant that in his conclusion the learned Review Officer had said:

"In my view the evidence did not support the applicant's claim that his further back condition (in January 1997) was simply a continuation of the earlier work caused disability."

17 It was submitted that that approach also was wrong; that the claim had not been that the 1997 condition had been a continuation of the 1996 condition, but rather an aggravation of the 1996 injury which aggravation had caused an incapacity which had resulted from the earlier disability. It was submitted that the appellant had not had to prove a continuation of the injury to succeed with his claim but that he had had to prove that the incapacity had resulted from the earlier disability.

18 Finally it was noted that the learned Review Officer had said:

"...it is my view the weight of medical evidence strongly suggested that the applicant suffered a fresh injury at home when he was adjusting the tail-gate of his ute. I conclude that the applicant has failed to prove on the balance of probabilities that he continued to suffer from the work caused disability and that this resulted in his alleged incapacity for work for the period 12 January 1997 to 8 April 1997."

19 The appellant referred to the Compensation Magistrate's reasons where his Worship said:

"It is clear from the transcript of proceedings at review that the issue had been clearly identified as one of causation."

It was said that that did not validate the result as the reasoning of the Review Officer had been infected with error.

20 Reference was also made to the learned Compensation Magistrate's reasons where his Worship said:

"However, as there were two incidents it was natural and indeed essential for the Review Officer to resolve the issue of whether the period of incapacity was the result of the compensable injury or the result of a new non-compensable injury."

21 It was submitted that the Review Officer had not had to decide whether it was one or the other. He simply had to decide whether there had been an incapacity which had resulted from the earlier disability; that deciding that question did not involve the question of whether it had been one or the other because both could have been in a sense contributing causes.

22 The appellant contended that providing that the workplace disability had been a material contributing cause, then that would have been sufficient to establish liability: Rosmini v Chrysler (1973) 6 SASR 212 per Bray CJ at 215.

23 It was pointed out that Mr Slinger had said amongst other things in his report of 2 July 1997:

"It is also possible that the incident of February 1997 in itself could have produced some discomfort but in my opinion it is more likely that the incident of February 1997 simply aggravated the underlying condition caused by the accident of 1996."

24 In Rosmini v Chrysler (supra) at 215, Bray CJ said:

"I take certain propositions to be established in this field of compensation law:

2. If an incapacity exists, it is not necessary that the injury should be the sole cause of it. It is sufficient if it is a material contributing cause: ...

3. A supervening factor, a novus actus interveniens, may so operate as to displace in the eyes of the law the original injury as the cause of the incapacity; ...."

25 Bray CJ discussed what was meant by the conceptions of material contributing cause and novus actus interveniens, which he said needed further analysis. At 216 and following his Honour discussed the previous cases. At 217 his Honour said:

"I think I can only say that this is a question of fact in each case to be decided on broad commonsense lines. Where there is an injury at work and a subsequent incapacity the tribunal has to ask itself did the latter result from the former?: Commonwealth v Butler [1958] HCA 56; (1958) 102 CLR 465 per Windeyer J at page 480."

26 In my opinion that is the way in which this question should have been approached by the learned Review Officer. I do not think that occurred.

27 It is my opinion that it could be held that a worker who injured his back at home, when it had not fully recovered from a compensable injury, had suffered an incapacity resulting from the earlier disability. In this case the matter was not approached in that way by either the Review Officer or the learned Compensation Magistrate.

"In my view, the evidence did not support the applicant's claim that his further back condition (from January 1997) was simply a continuation of the earlier work caused disability."

That, with respect, was not the right question to ask.

29 Counsel for the respondent referred to the Review Officer's conclusion that:

"It is my view that the weight of the medical evidence strongly suggests that the applicant suffered a fresh injury at home when he was adjusting the tail-gate of his ute."

"I conclude that the applicant has failed to prove on the balance of probability that he continued to suffer from the work caused disability and that this resulted in his alleged incapacity for work. ..."

30 The worker was not required to prove that he had continued to suffer from his work caused disability and that this resulted in his alleged incapacity for work in 1997. He was required to prove that his incapacity resulted from the 1996 disability which was a different question.

31 On 19 August 1998, Master Sanderson gave the appellant leave to appeal against the decision of the Compensation Magistrate. In my view error on the part of the learned Magistrate has been established. The appeal should be allowed, the decision of the Compensation Magistrate quashed and the matter remitted for hearing by a different Compensation Review Officer.

32 MILLER J: I have had the advantage of reading in draft the reasons published by Wallwork J. I am in agreement with those reasons and have nothing further to add.