Workers Compensation - For what injuries compensation is payable - Causal relation between injury and incapacity or death - Generally - Test for causation.

Workers Rehabilitation and Compensation Act 1988 (Tas), s69(1).

Jones v Devonfield Enterprises (1995) 5 Tas 345, applied.

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Mahony v Industrial Registrar of NSW (1987) 8 NSWLR 1; Cascade Brewery Pty Ltd & Anor v Chambers 76/1992, followed.

Judgment Number: [2000] TASSC 87

1 Pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s42, the appellant referred to the Tribunal:

"My entitlement to workers compensation in connection with a back injury suffered on or about 14th October 1996 or in the alternative an injury suffered on or between 9 June 1998 and 1 July 1998."

2 By order dated 30 September 1999, the appellant's referral was dismissed. This appeal is from that determination upon the grounds that the Tribunal:

"1 Erred in law in finding that the appellant worker suffered a disease which resulted in his incapacity for work commencing on 1 July 1998 when there was no or insufficient evidence to support such a finding.

2 Erred in law by failing to give sufficient reasons for [its] determination that the appellant worker suffered a disease which resulted in his incapacity for work commencing on 1 July 1998.

3 Erred in law in finding that the appellant worker's incapacity resulted from a disease suffered on 1 July 1998 when there was no or insufficient evidence to support such a finding.

4 Erred in law in finding that if the appellant worker did not suffer a disease then in the alternative the appellant worker suffered further injury on or about 1 July 1998 when there was no or insufficient evidence to support such a finding.

5 Erred in law in failing to properly direct [itself] as to the test to determine whether the worker's incapacity resulted from the injury suffered by the appellant worker on 14 October 1996.

6 Erred in law in dismissing the worker's application."

3 The appellant had been employed by the respondent as a fabricator since March 1996. On 14 October 1996, the appellant suffered an injury that arose out of and in the course of his employment. The undisputed finding of the Tribunal was that on that day the appellant suffered a prolapse of a disc in his lumbar spine when lifting a piece of aluminium sheeting. A claim for compensation in accordance with the Act, s34, was made and not disputed. Weekly payments were made. The appellant returned to work about a week after suffering the injury and, after a period on restricted duties, returned to his ordinary work.

4 The undisputed finding of the Tribunal, based upon medical opinion evidence given by the rheumatologist, Dr Francis, was that the prolapse of the disc:

"... set up a process of secondary degeneration and the [appellant] would, from time to time, then be subject to further incapacitating episodes as a result of the aggravation of that damaged area of his spine."

The appellant's evidence about this was to the effect that after the prolapse, he suffered from "flare ups" of symptoms from time to time and had to take care performing his duties to avoid doing those things which caused him to suffer symptoms in his lumbar spine.

5 The Tribunal accepted the worker's evidence that on 9 June 1998, he was set to work in tunnels within the hull of a ship. The appellant had to work in very cramped conditions. This caused a gradual increase in his symptoms. The appellant then had a short time off work due to an unrelated injury and the symptoms improved. However, on his return to work, they worsened and the appellant sought medical treatment. He first became incapacitated from working on 1 July 1998. Although he requested time off, he did not claim that the reason for taking time off was an incapacity for work due to a compensable injury. However, on 21 July 1998, the appellant gave the respondent a claim for compensation in accordance with the Act, s34. The claim was disputed. The dispute was determined to be a genuine one in accordance with the Act, s81A. Accordingly, the appellant referred the matter to the Tribunal and the order, which is the subject matter of this appeal, was made.

6 The Act, s32(1)(a), disentitles a worker from receiving compensation if notice of injury is not given to an employer "as soon as practicable after the occurrence of the injury ...". The Act, s37 provides that a worker may be relieved from the consequences of a failure to comply with s32(1)(a) if (inter alia) the failure was occasioned by "other reasonable cause".

7 For reasons that will be considered shortly, the Tribunal found that between 9 June and 1 July 1998 the appellant suffered from a disease which, by virtue of the Act, s3(5), became an injury which was a disease and which was deemed to have occurred on the latter date. The Tribunal also found with respect to the claim for compensation made on 21 July 1998 that:

* notice of injury was not given as soon as practicable after the occurrence of the injury; and

* the failure to give such notice was not due to any reasonable cause.

8 There is no challenge to the latter findings of fact, and the appellant accepts that if his incapacity on 1 July 1998 was due to an injury being a disease that was deemed to have been suffered on that date, he is disentitled to recover compensation because of non-compliance with the Act, s32(1)(a). However, that is not the end of the matter. By his referral, the worker claimed in the alternative to be entitled to weekly payments because his incapacity for work on 1 July 1998 resulted from the injury sustained in 1996. Timely notice and claim had been made with respect to that injury and no further notice was required. See Chorley v Hazell Pty Ltd A17/1993; Harris v TSS Pty Ltd and Sun Alliance Group Ltd A46/1992. I do not see anything to the contrary in the reasons for judgment of the learned Chief Justice in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308.

9 The Tribunal asked itself the correct question when it said, in its reasons for judgment at 8:

"The only issue available on the evidence is whether or not the worker suffered an injury during June 1998 or whether at that time there was merely a further period of incapacity as a result of the initial work caused injury in October 1996."

10 The only evidence relevant to that issue was given by the appellant and Dr Francis. In its reasons for judgment, the Tribunal made it clear that it accepted the evidence of Dr Francis. In his evidence, Dr Francis expressed the opinion that:

* the prolapse occurred prior to July 1998 and caused symptoms of pain in the appellant's back;

* the symptoms were due to the prolapse compromising a nerve;

* the symptoms resolved but the compromise of the nerve remained;

* working in cramped conditions immediately prior to 8 July 1998 caused the compromised nerve to produce pain;

* such pain was the result of chemical change in the nerve with resultant neurological sequelae; and

* the chemical change and its sequelae was due to work related stress or pressure to the prolapsed disc.

11 The following passage is taken from the cross-examination of Dr Francis:

"We're talking about sciatica, we're talking about some nerve root compromising the spinal column [sic] aren't we? ... Yes.

Or some disc prolapse, some disc bulge, some piece of disc whatever? ... Yes.

If someone suffers from sciatica such that there is nerve root, as a result of nerve root compromise that sciatica resolves? ... In the majority of instances absolutely.

It means that the nerve is no longer being compromised? ... That's not true, that's not what it means at all. If you actually do the MRI scan or the CT scan or myelogram you can do it when they're symptomatic and when they're asymptomatic and you'll show absolutely no difference, the changes that lead to the pain are vascular and chemically mediated, the presence of the abnormal pathology is a marker for what's occurring and it's a prerequisite for what's occurring but the differentiation between symptomatic and asymptomatic is a chemical process so that what we are looking at with imaging is an anatomical process which never correlates; if I did an MRI on everybody in this room, with the exception of probably Simona over there, we would all have abnormalities on our MRI scans in our back including nerve root compression.

But something happens, there has to be some - ... Yes.

If you assume that someone after a period of sciatic [sic] becomes asymptomatic, something has to happen before the next episode occurs and we're talking - ... Yes, it doesn't have to be an injury, it can be a very minor process that re-ignites that chemical and neurological sequelae.

"Dr Francis you'd agree with me wouldn't you that had it not been for the fact that Mr Ling spent time crawling around in a confined space in June 1998 he would not have suffered the symptoms which subsequently incapacitate him? ... Absolutely.

So his actions crawling around in a confined space in June of 1998 those actions were the proximate cause of the development of this pain? ... Yes."

12 All of that evidence was accepted by the Tribunal as is apparent from the following passage in the reasons for decision at 9:

"Dr Francis did not accept that some further physiological damage would need to occur to the spine or ruptured disc for this purpose but rather he described some form of chemical or neurological change brought about by activity at a certain time. The description given by Dr Francis appears to me to describe a disease process which is set up consequent upon the injury occurring in October 1996. That disease process did not cause incapacity until July 1998 and as such could not, within the meaning of the Act, be said to have been suffered until such date of incapacity."

13 A little further on in its reasons, the Tribunal referred to Dr Francis' opinion that working in the cramped conditions caused the incapacitating symptoms and said that such work caused a change "to the worker's physical condition that resulted in the incapacitating symptoms, which would amount to an injury". Clearly, the Tribunal is there referring to the chemical change in the nerve caused by the work related stress or pressure to the 1996 prolapse. The Tribunal held that that change was an injury being a disease and concluded that the incapacity for work was as a result of that disease and not the 1996 prolapse.

14 I should say at once that there is no substance in ground 2 of the notice of appeal. The reasons for judgment of the Tribunal make quite clear which facts the Tribunal accepted and they properly expose the process of reasoning that led from the acceptance of those facts to the final conclusion.

15 The finding of fact that the chemical change and neurological sequelae to the nerve was a disease within the meaning of the Act cannot be shown to be erroneous in the sense that no tribunal, acting reasonably and properly instructed as to the law, could not have made that finding. Indeed, I would add that such finding seems to be the only reasonable one open on the evidence. However, that finding is not conclusive of the issue. The relevant time was the time incapacity first occurred. Having found the existence of an injury being a disease at that time, the Tribunal concluded that such injury resulted in the incapacity for work within the meaning of the Act, s69(1). The Tribunal concluded that in accordance with the opinion of Dr Francis there was "a new causative event" that was deemed to have occurred on 1 July 1998.

16 The question for the Tribunal was not simply whether the appellant had suffered an injury being a disease on the day he was incapacitated, it was whether that incapacity for work resulted from the 1996 injury or the disease within the meaning of the Act, s69. With respect to this question of causation, the Full Court in Jones v Devonfield Enterprises [1996] TASSC 11; (1995) 5 Tas R 345, expressed approval of the following passage taken from the judgment of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464:

"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury ..., is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. ... a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return, as McHugh JA advised, [Woolworths Ltd v Allen supra] to the statutory formula and ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."

"... it does not follow that if a precipitating incident is required in addition to the original injury before incapacity occurs, the original injury can be said to be no longer causative of the resultant incapacity."

18 Although it cannot be disputed that the immediate proximate cause of the relevant incapacity was the chemical change and neurological sequelae, Kooragang Cement Pty Ltd v Bates (supra) made it clear, at 463, that the immediate proximate cause may not be the cause within the meaning of the Act, s69. The Tribunal's obligation was to determine in a "common-sense way" (March v E & M H Stramare Pty Limited & Anor [1991] HCA 12; (1991) 171 CLR 506), the cause of the relevant incapacity. In doing so in a case where there are two possible causes, the following words of Moffitt P in Morris v George [1977] 2 NSWLR 552 at 567 are apposite:

"Of course, even where one injury does not cause the other, there may be relevant evidence which will leave open the conclusions that incapacity or death results from an earlier injury. Thus a first back injury may be of such major proportions that incapacity is recurrent and even progressive, and a second accident or incident so minor or so much a part of normal activity that it is open to find that a later incapacity following the second accident or incident resulted from the initial injury."

19 This is such a case and I am in no doubt that it was open to the Tribunal to find as a fact that the cause of the relevant incapacity was the 1996 injury, and that the work done in the cramped conditions in 1998 put pressure on the damaged disc and by the mechanism of chemical change to the nerve, described by Dr Francis, caused it to convey a message of pain to the appellant's brain. The Tribunal did not make that finding. Was its failure to do so an error of law? Appeal to this Court is confined to questions of law. It is not for this Court to review findings of fact made by the Tribunal unless those findings are ones that no tribunal, properly instructed as to the law and acting reasonably, could have made. See Mahony v Industrial Registrar of NSW (1987) 8 NSWLR 1 at 3; Cascade Brewery Pty Ltd & Anor v Chambers 76/1992; Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41.

20 The impugned finding of fact is one with respect to which reasonable minds could differ. After careful consideration I have come to the conclusion that the finding that the appellant's incapacity for work on 1 July 1998 was caused by an injury being a disease that was deemed to have occurred on 1 July 1998 was not an error of law. The appeal is dismissed