AUSTRALIAN PADDING CO PTY LTD v ZARB SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, POWELL JJA and WADDELL AJA 17 April 1996, 16 August 1996 [1996] NSWCA 34 Workers Compensation WORKERS COMPENSATION — claim for aggravation of cervical spondylosis — deemed time of happening of injury — s16(1) of 1987 Act — Compensation Court finds worker. discharged onus of showing his condition caused aggravation — this challenged on appeal — on consideration of lay and expert evidence, held: no error by trial judge — trial judge's application Schedule 6 Pt6 also challenged — on evidence accepted by trial judge, held: his application of Schedule 6 Pt6 was correct. ORDERS Appeal dismissed with costs. Priestley JA I agree with Waddell AJA. Powell JA I agree with Waddell AJA. Waddell AJA This is an appeal from an award of compensation under the Workers' Compensation Act 1987 (the Act) in favour of the respondent against the appellant by the Compensation Court constituted by Moran, CCJ. The respondent, who was born in 1941, had been employed by the appellant from 1960 for 32 years until its factory closed down on 24 December 1992. For many years before this date, he had been a maintenance fitter and foreman. Over the years he had suffered a number of injuries arising out of his employment. The circumstances in which the respondent made the present application are described by Moran. CCJ as follows: "He brought proceedings in this Court, Matter No.6573 of 1992, claiming weekly compensation from 24 July 1991 to date and continuing for incapacity resulting from a number of injuries and the nature and conditions of his employment. The injuries alleged were mainly to his neck, back both arms and right thumb. Over the years his employer was indemnified in respect of its liability under the Workers Compensation Act by different insurers. In matter No. 6573 of 1992 Senior Commissioner Hopkins granted leave to four counsel to represent the Respondent in the interest of four insurers. Three of the insurers indemnified the Respondent for its liability under the 1926 Act and Employers Mutual Indemnity Workers Compensation Limited indemnified the Respondent in respect of its liability under the 1987 Act from Ist July, 1987 until the Applicant's employment ceased. The Applicant reached agreement with all but the last insurer. Senior Commissioner Hopkins approved of a lump sum redemption of $9,500.00 under s15 of the 1926 Act. The Award noted the agreement that the lump sum redeemed liability under s60, s66 and s67 of the 1987 Act and under s19 of the Compensation Court Act. 2 UNREPORTED JUDGMENTS The redemption was in respect of the employer's liability for injuries received by the Applicant on and before 4.00 pm on 30 June 1987. By consent the Application for Determination was amended to delete reference to any injury received by the Applicant after 4.00 pm on 30 June 1987. The current proceedings were commenced by the filing of a fresh Application for Determination on 23 November 1993. The applicant claims he suffered injury as follows: (i) On 22 July 1991 the Applicant was working as a maintenance fitter and was fitting a long steel arm when he lost his balance and fell on his left elbow and left side. (ii) The Applicant is suffering from a disease of such a nature as to be contracted by the gradual or aggravation of same due to the nature and conditions of his employment with the Respondent from I July 1987. He claims that as a result of the injuries he suffered injury to his head neck both arms and back He claims weekly compensation and lump sums under S 66 for permanent impairment of his neck and percentages of loss of use of both arms and both legs and for a lump sum under s67 for pain and suffering." In the light of the evidence before the Compensation Court, the respondent did not rely on the injury mentioned in (i). The respondent had the onus of satisfying the Compensation Court on the balance of probabilities that he had suffered the impairment and losses claimed as a result of injuries received during a period after 4 pm on 30 June 1987 until his employment ceased on 24 December 1992 (the relevant period). After July 1991 the respondent carried out supervising duties only and not the heavy work which he had previously performed. The respondent's claim was based upon the aggravation of a disease existing at the beginning of the period, cervical spondylosis, where his employment was a contributing factor to the aggravation: see definition of "injury", s4(b)(ii). In such a claim, s16(1), so far as relevant, provides that the "injury" shall, for the purposes of the Act, be deemed to have happened at the time of the worker's incapacity, in this case either when he ceased to do heavy work or had the fusion operation to his neck or when he made this claim for compensation. The respondent's case was that the nature of the heavy work which he was required to do until he was placed on light duties as a foreman at the end of July 1991, aggravated the disease resulting in the disabilities in respect of which he claimed. The principal grounds of the appeal are that there was no, or insufficient, evidence to justify the Compensation Court's acceptance of that case. There was no dispute that at the beginning of the period, the respondent was suffering from cervical spondylosis: stiffness or fixation of vertebrae in the neck. He saw Dr Lau in July 1987 when he presented with signs and symptoms of cervical spondylosis and was treated conservatively. He saw Dr Lau again on 9 July 1991 when he was complaining of jerking movements of his upper limbs and parasthesiae of the fingers. There were signs of neuropathy and he was referred to Dr Griffith, a neurologist, to exclude "spinal cord compression". In his report, he says that the respondent complained of jerking movements in both lower limbs. He complained of parasthesia in the tips of the fingers of both hands. The report records that: "On examination there was mild limitation of right and left lateral cervical spine flexion with normal power in both upper limbs, however there was marked hyper reflexia in both upper limbs with a positive Hoffman's sign Decreased pin prick sensation was present over the tips of the fingers of both hands. The lower URJ AUSTRALIAN PADDING CO PTY LTD v ZARB (Waddell AJA) 3 limbs revealed evidence of spasticity together with hyper reflexia and frank clonus of the right lower limb. The right plantar response was upgoing and that on the left downgoing. I could not detect any sensory alteration in either lower limb." The opinion in the report was: I felt Mr Zarb had evidence of cervical spinal cord compression on the basis of cervical spondylitic myelopathy. This is usually due to degenerative cervical disc disease. Mr Zarb indicated that he first developed jerking movements in the lower limbs which I suspect are a form of clonus after he injured his right foot ten years ago at work. I do not feel the injury to his foot produced his cervical cord compression and If eel his cervical cord compression which occurred is secondary to degenerative cervical spondylosis." Dr Griffith arranged for a myelogram and referred the respondent to Dr Kwok, a neurosurgeon. The myelogram showed spinal cord compression at the CS-6 and 4-5 region, a reference to vertebrae in the neck. Dr Kwok advised that surgery should be considered. The respondent was taken off heavy work and commenced light duties as a foreman. In February 1992, the respondent again saw Dr Kwok who noted in his report that there had been no progression of the condition but that the risk of "acute deterioration especially in association with sudden flexion injury (was) genuine. and that the respondent had decided to submit himself for surgery. On 26th February a surgical decompression was performed. About three months after the operation, the respondent returned to work with the appellant on light duties until the factory closed in December 1992. For the first six months of 1993 he worked as a supervisor in Brisbane. On 25 August 1993 he commenced with Insulco as supervisor and was employed there at the time of the hearing of his application in October 1994. Moran, CCJ concluded that he was satisfied on the evidence that the respondent had suffered further aggravation to his neck and arms as a result of the injuries after 30 June 1987 but that he was not satisfied that he suffered any further injury resulting in further loss of use of his legs. He found that the respondent had suffered 40% permanent impairment of his neck and 10 per cent permanent loss of use of his left arm at or above the elbow. He awarded compensation under s66 and s67 accordingly and made an order under s60 for payment of medical and hospital expenses. The assessments of permanent loss were based upon a report by Dr Selby-Brown of 17 June 1993. He expressed the opinion, in effect, that the disabilities for which compensation was awarded were consistent with some degree of cervical cord compression and noted that it was "unusual that a man who was now only 52 years of age has had such extensive degenerative changes present in his cervical spine for apparently the last ten years without any previous history of injury to his neck". Earlier in his report he referred to an injury received by the respondent at work in 1979 and said that it was "possible but by no means certain that this injury could have caused aggravation of (the) degenerative changes that he probably had at the time of this injury so that 'they became symptomatic and had remained so ever since. He went on to say that he was not able to identity any clear relationship between the progression of the degenerative changes in the respondent's lower cervical spine and his neck injury in 1979. 4 UNREPORTED JUDGMENTS It is not necessary to refer to the other medical reports except to say that the doctors, including Dr Griffith, on the question whether the respondent's work conditions had aggravated his disease, uniformly expressed the opinion that his cervical spinal cord compression had occurred as a result of degenerative cervical spondylosis rather than being due to any work-related problem. In a report dated 6 July 1993 Dr Griffith, who had been asked to express an opinion as to whether the accident on 22 July 1991, (mentioned as (i) at 2 above), had aggravated the respondent's condition, said that it was likely that it had aggravated his spinal cord compression. However, in his oral evidence he withdrew from this opinion because there had been no change in symptoms shortly following the accident. It must, of course, be noted that Dr Griffith was the only doctor who gave evidence. The others did not have the benefit of considering the nature of the respondent's employment as detailed in his evidence. At 5 of his judgment, his Honour noted that the respondent's case depended on acceptance of Dr Griffith's opinion given in his oral evidence. He then said: "When taken into consideration with the Applicant's evidence of gradual increase in his symptoms ending in July 1991 with his concern to do something about it 'when it started getting worse and worse '[sic]. I am satisfied on the balance of probabilities that the work performed by the Applicant between July 1987 and July 1991 aggravated and accelerated the disease of cervical spondylosis Forst v Adelaide Steamship Company 63 CLR 538; EMI Australia Ltd v Bes (1970) WCR 114." Before turning to the evidence on which his Honour relied it is convenient to refer to these decisions and others relied on in the appeal. They were decisions in which a finding was upheld that an injury was more probably than not caused by an event when the medical evidence went no further than to say that the event was a possible cause. In Tubemakers of Australia Ltd v Fernandez (1975) 2 NSWLR 190, the Court of Appeal, Glass and Mahoney, JJA, Reynolds, JA dissenting, upheld the verdict of a jury that a condition of Dupuytren's contracture in the hand was caused by a blow to the hand. The medical evidence was to the effect that the cause of the condition had not been identified by medical science but that there was a minority body of medical opinion that it could be caused by an injury of the kind which the defendant had suffered. There was evidence that development of the contracture followed within a reasonably short space of time after the injury. Reynolds, JA and Mahoney, JA stressed the importance of analysing what was the true content of the medical evidence. Reynolds, JA concluded that it did not provide a basis on which the evidence as to the circumstances of the injury and its nature could be said to support the conclusion which the jury reached. The decision was upheld by the High Court on appeal (1976) 50 ALJR 720 by majority, Barwick, CJ, Gibbs, Mason and Murphy, JJ, Stephen, J dissenting. Barwick, CJ said: "The medical evidence could sustain the view that a blow to the hand could cause Dupuytren's contracture. The proved blow to the respondent's hand, the subsequent manifestations, the absence of an anterior disability to the hand and of any indication of any cause of the Dupuytren's contracture, all unite to warrant a conclusion that what the medical evidence established as a possible cause was the probable cause of the contracture of the respondent's hand." (at 721(i)) Mason, J said: The evidence given by Dr Sweeney was in my opinion capable of being understood by the jury as a statement by an expert that trauma in the form of a blow or blows to the hand, or in the form of manual work, was a cause of URJ AUSTRALIAN PADDING CO PTY LTD v ZARB (Waddell AJA) 5 Dupuytren's contracture and that it was therefore a cause of the respondent's disability. Dr Sweeney explicity (sic) rejected the suggestion that there was no causal connexion between trauma in the sens which I have explained and the onset of the contracture. Moreover, some of his answers to questions put in cross-examination, in particular the statement "There have been cases of minimal trauma being a cause of Dupuytren's contracture; could well be understood by the jury as signifying that in some cases minimal trauma was the actual cause, or at least the probable cause, of the onset of the contracture. In my opinion this evidence left it open to the jury to infer that on the probabilities the injury caused or materially contributed to the occurrence of the condition. In drawing such an inference the jury was entitled to have regard, in addition to the matters referred to by Dr Sweeney in his evidence, to other significant circumstances: (a) that before the accident the respondent had suffered no disability in his right hand; (b) that the condition made its appearance shortly after the accident; and (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with Dr Sweeney's evidence, provided in my opinion a sufficient basis from which the jury could draw in inference favourable to the respondent." (at 724(i)) Stephen, J analysed the medical evidence closely and concluded that the medical evidence was to a limited effect and that the only material arising from the lay evidence capable of being combined with it was the bare fact that the symptoms of Dupuytren's contracture were apparent to the doctor some six months after the injury and had begun to manifest themselves to the plaintiff some time after the injury. He concluded that to infer from the lay evidence, in the light of the medical evidence most favourable to the respondent that the injury was a cause of the contracture was impermissible. He contrasted the facts of the case with those of EMI (Australia) Ltd v Bes (1970) 2 NSWR 238. This was an appeal from the Workers Compensation Commission. The applicant claimed compensation for the death of her husband. Medical evidence indicated that the death might have occurred as a result of various factors. On the basis of the medical evidence, considered with lay evidence, the Commission found that one of these was the probable cause of death. There is no need to state the reasoning by which the Court was held to be entitled to this conclusion. The other decision referred to is Forst v Adelaide Stevedoring Co Ltd (1940) 64 CLR 538. There, a waterside worker, after performing tasks which involved muscular exertion, collapsed and shortly afterwards died. On an application for workers compensation, the medical evidence was that death from coronary thrombosis could not generally be related to exertion and that the death could not satisfactorily be said to have been caused by his exertion. A decision against the applicant had been set aside in the Supreme Court whose decision was upheld in the High Court. The Supreme Court had taken the view that, although the expert evidence was not conclusive, it showed that physical exertion was commonly, though not invariably, the inciting cause of coronary thrombosis as a result of which the worker had died, and that, having regard to the probabilities arising from the lay evidence, the proper conclusion was that the exertion had caused or contributed to the workman's death. In the High Court, emphasis was placed on the sequence of events, the death occurring so soon after the exertion and appearing to lay minds to be causally related. The documentary and oral evidence of Dr Griffith on which Moran, CCJ relied is set out in his judgment as follows: 6 UNREPORTED JUDGMENTS "The appointment with Dr Griffith was made before the Applicant's fall at work 22 July 1991. He saw Dr Griffith on 23 July but gave him no history of the fall the previous day. He was given a history of a facture (sic) of the toe of his left foot after part of a forklift load fell on his foot and that he had hit his head while he was at work and had been thrown to the ground. Based on that history Dr Griffith, in a report dated 16 April 1992, (Exhibit 4), said:- 'I feel his cervical cord compression has occurred on the basis of degenerative cervical spondylosis rather than secondary to any work-related problem.' Dr Griffith gave evidence (at 31):- "Q. Would you assume that he gave evidence this morning that at various stages he had help with some other man - lift pipes off the ground that could have been as heavy as 40 or 50 kilos. The worked involved a considerable abount (sic) of ordinary labouring duties, but particularly, a significant part of his job required him to work in very confined spaces, under machines, in between machines. Occasionally with his neck flexed forward for quite significant periods upwards. Having to move his shoulders in such a fashion. Would that be the sort of work which could aggravate the underlying condition. A. It could. Q. As I understand it doctor, the spondylosis is basically a constitutional sort of problem. A. Correct. Q. Now bearing in mind that the Applicant performed that sort of fairly heavy work for a period of some 33 years, would that have aggravated the underlying degenerative process. A. It could aggravate - heavy work can aggravate that sort of disorder. Q. Would it tend to accelerate that sort of degenerative process. A. It could accelerate that process..'.... On 33 of Dr Griffith's evidence:- 'Q. Doctor, are you of the view that the type of work that I described to you earlier on would have contributed to the condition as it presently stands. A. It could contribute to doing that. Certainly any, there are certainly people I see where - for example - if they are carrying heavy bags on their shoulders or carrying heavy cement bags and things where that is clearly a contributing factor in this sort of work. And I have no hesitation in considering these situations to be contributing factors to the process and aggravation of it. it depends on the loads involved, the actual factors that are an assessment of the work situation in that scenario. Q. Doctor, would you believe that the degeneration that you observed in the Applicant was abnormal for a man of 52 years of age. A. Yes, yes. I mean, if you are asking me should the average 52 year old or should this be a common condition in 52 year old men, the answer is no. Q. Assuming as I asked you previously that he performed relatively heavy work for 33 years as I described, would you regard that as a contributing factor. A. Okay. If you are - I haven't gone through exactly what he has done, 40 or 38 period. If he is carrying out heavy work then I would consider that would aggravate the condition. Q. Particularly working in confined spaces with his cervical spine flexed and unflexed for continuous periods of time. A. Correct, if the neck is in an unnatural position or more flexed over it is more likely to cause you know problems in that regard." It is not suggested either for the appellant or the respondent that the assumptions about the nature of the work which were put to Dr Griffith were inaccurate. URJ AUSTRALIAN PADDING CO PTY LTD v ZARB (Waddell AJA) 7 However, his Honour was entitled to take into account the detailed evidence of the respondent, whom he accepted as a truthful witness, as to the nature of his work if this varied or amplified the assumptions. See transcript at 2-4. What was it then which caused the learned judge to convert a possibility into a probability? As already mentioned he did this by taking into consideration the applicant's evidence of gradual increase in his symptoms ending in July 1991 and his concern to do something about them when they got worse and worse. The evidence of this is not summarised in the judgment. The appellant described the symptoms which led him to see Dr Lau in 1991. These included a lump on his wrist. The medical reports show that this was a ganglion and unrelated to the spondylosis which Dr Lau diagnosed. He described how the symptoms had got worse over the years. He mentioned his inability to hold things with his hands which had commenced about four months before he saw Dr Lau. Then his evidence was as follows: "Q. During that four months before you saw Dr Lau had you been working on the machines in the way that you have described to his Honour. A. Yes. Q. When you turned the rollers, did you notice any change in the pins and needles. A. They sort of increased. Q. When you took the covers down from underneath the machines, did you notice any problem there. A. Yes, increasing pain on the - in the wrists. Q. If you were to stay in a position with your head bent and your neck bent, what did you notice about yourself then as far as the pins and needles were concerned. A. It just stay pins and needles. Q. Did you take any time off work as a result of these pins and needles before you saw Dr Lau. A. No. no. Q. When you saw him, you got certain advice. He told you to go and see Dr Griffith, is that right. A. That's right, yes." (Transcript at 7) Later he described a visit to Dr Giblin in 1988 about pins and needles in his hands and being told to put up with it as long as he could and then if he got worse, to have the operation. The medical report from Dr Giblin indicates that these symptoms were attributed by him to carpal tunnel conditions. However, the medical evidence generally indicates that the spondylosis was also a factor. There was no medical evidence as to the speed at which the disease which the plaintiff had might be expected to progress in the absence of aggravating factors. There was the evidence of Dr Selby-Brown already quoted to the effect that it was unusual that a man of the plaintiffs age should have had such extensive degenerative changes present for apparently the previous ten years without any history of injury to his neck. Other medical evidence is to the same effect. Dr Selby-Brown mentioned the possibility of a 1979 injury having been a contributory factor. It is important to consider what Dr Griffith's evidence established. Firstly, that the work performed by the respondent, described in broad terms, was the sort of work which could have aggravated the underlying condition which was basically a constitutional problem. If that kind of work was performed for a period of 33 years, it could aggravate that kind of disorder and could accelerate the process of degeneration. Dr Griffith said that he would have no hesitation in considering a situation where a person was carrying heavy bags on their shoulders, or heavy cement bags, as contributing factors to the process of degeneration and aggravation of it. He said that it "depended on the loads involved, the actual factors that are an assessment of the work situation in that scenario". Regrettably he was not asked anything about the mechanism by which such factors would 8 UNREPORTED JUDGMENTS produce that result. But it can safely be assumed that Moran, CCJ was quite familiar with the physiological detail of the parts of the body involved and thoroughly understood the import of the medical evidence. In my opinion, the detailed description of his work given by the respondent is of work which was more arduous and continuous and more taxing in the bodily positions required to be assumed than appears from the assumptions put to Dr Griffith. It was obviously in his Honour's mind that the symptoms of the disease and the disability associated with it were increasing markedly during the latter part of the respondent's employment before he went on to light duties. It is to be noted that, according to Dr Kwok there was no deterioration after he did so. In my opinion, having regard to these matters and to the answers given by Dr Griffith at 33 of the transcript, quoted in his Honour's judgment, his Honour was at liberty to find that over the period of the respondent's employment until he went on light duties, the nature of his work was a contributing factor to the progress of the disease. As already mentioned, the respondent had to establish that the aggravation occurred during the relevant period. The actual injury was deemed by s16 to have occurred at one of the times already mentioned. It is submitted for the appellant that because all of the relevant medical evidence related to the whole 33 year period, a conclusion of aggravation during the relevant period is not justified. This submission cannot be accepted. The impact of the evidence is that there was continuous aggravation throughout the whole of the 33 year period. The consequences became much more serious during the relevant period. Accordingly, in my opinion the conclusion reached by Moran, CCJ as to causation of the disability should be upheld. Put in terms of the definition of injury in s4, this was that the employment of the respondent during the relevant period was a contributing factor "to the aggravation, acceleration, exacerbation or deterioration" of his disease. There is no ground of appeal against the amount of compensation determined by his Honour under s66. The grounds of appeal which were pressed and which remain to be considered are 5 and 7: that he failed to take into account in assessing compensation under s67 that part of the respondent's complaints due to the pre-1987 component of his disease and wrongfully found that the respondents need for hospital and medical treatment was occasioned by the work he performed between July 1987 and July 1991. In his judgment, his Honour said: "Pursuant to the provisions of cl2 of Pt6 of Schedule 6 the amount I am about to award is for pain and suffering in respect of injuries received after 30 June 1987. I find the proper sum to award is one proportionate to 40 per cent of the maximum amount ie $19,620.00." This indicates that the amount awarded was based upon the aggravation of the disease which occurred during the relevant period. On the respondent's evidence, it was during this period that he experienced the great bulk of the suffering caused by the disease. In my opinion, the award is not open to criticism on the basis that his Honour failed to take into account that part of the respondent's complaints were due to the pre-1987 component of the disease. Similarly, it was the progress of the disease during the relevant period which required the medical and hospital treatment and which, in my opinion, justified the order which his Honour made that the appellant pay the applicant's medical and hospital expenses under s60. URJ AUSTRALIAN PADDING CO PTY LTD v ZARB (Waddell AJA) 9 Although there was no ground of appeal attacking the award made under s66, the appellant's written submissions, and oral submissions, were to the effect that if the respondent were entitled to an award under s66, such award should have been more no more than the permanent loss attributable to the post-1 July 1987 aggravation. The respondent did not object to these submissions on the ground that they did not support any ground in the notice of appeal but did so on the ground that this point was not argued before the Compensation Court. However, the Court accepted submissions on this ground. The award in the earlier proceedings is expressed to be a redemption of the liability of the appellant to make weekly compensation payments in respect of injuries sustained before 4 pm on 30 June 1987. There is a note that: "The applicant agrees that the said lump sum redeems liability under s60, s66, and s67 of the Act..." There could, of course, have been no redemption under s66 because the table to s16 of the former Act did not provide for loss of a back and cl5 of Pt6 of Schedule 6 provided that compensation was not payable under s66 in respect of such a loss which resulted from an injury received before the commencement of Div 4. Accordingly, it is necessary for the appellant to point to a provision that requires that only the permanent loss attributable to aggravation during the relevant period be taken into account for the purpose of s66. It is submitted that s71 is such a provision. In my opinion it does not apply. By its terms it requires that compensation has been paid or becomes payable for a loss and that there is a further loss. That is not the present case. His Honour's approach to assessing the s66 compensation is clearly enough expressed in his judgment. He said that cl6 of Pt6 of Schedule 6 of the Act applied, and then quoted it: "Tf a loss mentioned in the Table of Division 4 of Pt3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement." He continued: "Whilst I am satisfied on the evidence that the Applicant suffered further aggravation to his neck and arms as a result of the injuries after 30 June 1987, Iam not satisfied he suffered any further injury resulting in further loss of the use of his legs. Also he conceded that the symptoms of pins and needles in his right hand were improved by the operation in February 1992." In my opinion this approach was correct. In my opinion, on the evidence, the trial judge was entitled to regard almost all of the respondent's disability as the result of the disease as aggravated during the relevant period. This ground of appeal should not succeed. I propose that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: JD Hislop QC Solicitors for the appellant: Nevill and Edwards Counsel for the respondent: J Poulos QC/A Bell 10 UNREPORTED JUDGMENTS Solicitors for the respondent: WG McNally and Co