Fitch v Ryde Home Care [2001] NSWCC 183

Reported Decision : (2001) 22 NSWCCR 496

Compensation Court of New South Wales

CITATION : Fitch v Ryde Home Care [2001] NSWCC 183 PARTIES : Janelle Fitch Ryde Home Care - Health Care Service MATTER NUMBER(S) : 6117 of 2000 JUDGMENT OF: Quirk J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 21/08/01 DATE OF JUDGMENT: 08/21/2001

FOR APPLICANT: Ms S P Walsh instructed by Robert A Hannam & Co appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P K Mansfield instructed by GIO Australia appeared for the respondent.

JUDGMENT: 1. This is an appeal from a decision of Commissioner Hunt by the worker. The Commissioner delivered judgment on 12 October 2000 after a hearing which took place on 25 August 2000. The claim before the Commissioner was in respect of two days' weekly compensation, namely 29 and 30 December 1998. 2. It appears to me, having read the transcript of the evidence and the Commissioner's judgment, the only real issue for determination before the Commissioner was the question of nexus or causation of the applicant's incapacity for the two days, 29 and 30 December 1998. There was no issue that the applicant sustained an injury in February 1993 to her back in the course of her employment with the respondent, Ryde Home Care - Health Care Services. The evidence before the Commissioner consisted of the applicant's evidence and a number of medical reports tendered in the applicant's case which reports all predate the alleged aggravation of her original injury in December 1998. In addition to the medical reports in December 1998, were clinical notes of the Ryde Hospital in respect of an attendance upon that hospital by the worker on 28 December 1998, and a medical certificate of Dr MacRae dated 13 January 1999, which was Exhibit G before the Commissioner. 3. The grounds of appeal as set out in the notice of appeal are: 1. The Commissioner failed to consider at all the tendered medical certificate of Dr MacRae dated 13 January 1999. 2. The Commissioner failed to give any weight at all to the tendered medical certificate of Dr MacRae dated 13 January 1999. 3. The Commissioner failed to give any reasons at all for the rejection of the tendered medical certificate of Dr MacRae dated 13 January 1999. 4. The Commissioner erred in stating that the only document tendered in the proceedings which postdated the December 1998 incident was the clinical note of Ryde Hospital. 5. The Commissioner erred in drawing an inference which was not supported by the evidence. 6. The Commissioner erred in finding that the incapacity did not result from the 1993 injury. 7. The Commissioner erred in making a finding of fact in which there was no evidence at all, or alternatively, the Commissioner erred in making a finding of fact when there was insufficient evidence to do so. 4. The applicant in the hearing before the Commissioner, gave evidence of the injuries sustained in 1993 whilst employed by the respondent and the progress of her symptoms since that time. As I said, there was no issue that she sustained injury and indeed, the parties entered into an agreement in respect of permanent impairment of the applicant's back and loss of use of her leg, which agreement was the subject of an award of 11 July 1997, and which award was in evidence before the Commissioner. That award provides for the payment of the sum of $11,736 in respect of 12.5 per cent permanent impairment of the applicant's back, $1,316 in respect of 2 per cent loss of use of the applicant's right leg at or above the knee and an award pursuant to s 67 for pain and suffering. There was also an award in respect of s 60 expenses. 5. The evidence of the applicant before the Commissioner was, that after the injury in 1993, she continued to work for some time for the respondent on selected duties and then was terminated on medical grounds. After a couple of years off work and after some rehabilitation, she commenced work with her present employer, the Royal Rehabilitation Centre, in January 1997 and in which position she assists with rehabilitation of patients and which work she described as lighter than the work she was performing for the respondent. 6. In respect of her symptoms, since the original injury in 1993, she said that her back fluctuates stating "Sometimes it's not too bad, other times it sends me through the roof". She continued, she said, to have regular treatment up until December 1998. At that time she was suffering from a cough for a few days. She said that after coughing so badly her back pain escalated to the point where she could not move very well, and she attended the Ryde Hospital at the Accident and Emergency Centre. 7. In her evidence-in-chief, she described the back pain in December 1998, as compared to her original injury in February 1993, as probably the same if not worse. In answer to a question by the Commissioner, the applicant appeared to concede that her pain in 1998 was worse than in 1993. After her two days off work, she had some further time off over the Christmas break and rested in bed and then returned to work. She did not claim compensation for the further days that she was resting over the Christmas break. 8. In cross-examination, it was put to the applicant that the reason that she went to the hospital on Boxing Day was because of a very sudden and acute pain to which the applicant responded "No" and added a little later "I've always got a back pain". However, she did concede that the back pain she experienced while coughing on a toilet in December 1998 was excruciatingly acute. Although the medical certificate tendered Exhibit G is incorrect in that it certifies a period of unfitness from 26 December 1998 to 29 December 1998, that did not appear to be an issue which was raised during submissions, the transcript of which is also before me. 9. The respondent's counsel during submissions referred the Commissioner to the case of Pickersgill v Freight Bases Pty Ltd (1983) 3 NSWLR 117, and submitted to the Commissioner that that case is authority for the proposition that: If an injury suffered by a worker makes a worker more vulnerable to suffer a further injury to the same area, that does not mean that should another injury occur or another event occur which acts on that weakness and produces symptoms or incapacity perhaps that the incapacity results from the first incident or injury. 10. Counsel went on to say: ... the applicant did suffer an injury in 1993, she did have a weakened back, perhaps, she did have ongoing problems, but that is not to say that a further incident, namely the coughing incident, acting on that weakened back and producing incapacity, that that incapacity was then the result of the original injury. 11. Counsel for the respondent also used an analogy in submissions to the Commissioner, namely, that if the applicant had been performing activities such as lifting with her present employer which caused acute back pain that the conclusion would be that the lifting incident caused the exacerbation and was therefore not the result of her original work injury. 12. Counsel for the respondent pointed out that the onus of proof lies upon the applicant, and went on to submit to the Commissioner that: There was no medical evidence before you post the incident in 1998 - saying that the incapacity was as a result of the injury in 1993. 13. The Commissioner appears to have accepted and adopted the respondent's counsel's submissions and the major complaint or ground of appeal arises from the part of the Commissioner's judgment appearing in par (9) of his judgment, where the Commissioner states as follows: Ms Walsh, appearing for the applicant, asserted that all doctors had ascribed the exacerbation of back pain to the incident of 16 February 1993. However, I note that the only document tendered in these proceedings which postdated the December 1998 incident was the clinical note of Ryde Hospital. In that note, the doctor recorded that the onset of pain was precipitated by coughing. 14. The Commissioner went on to refer to the submissions of respondent's counsel to which I have already referred and stated in par (14): I accept Mr McGrowdie's proposition that had the exacerbation of back pain resulted from a lifting incident with the new employer, that there would be no question that the new employer was liable for the time off work. The only consideration that would be given to the 1993 incident would be in determining the applicability of s 68A if a further permanent impairment were alleged. 15. He then found that the cause of the applicant's incapacity in December 1998 was not the injury in 1993, but the coughing fit in December 1998 and he therefore entered an award for the respondent. 16. Although Mr Mansfield of counsel, appearing for the employer on the appeal, in his eloquent submissions, submitted that the Commissioner when stating that the only document tendered in the proceedings which post-dated the December 1998 incident was the clinical note of Ryde Hospital, may have meant that it was the only relevant document. As Mr Mansfield properly submitted, the authorities are clear that the Court needs to provide reasons for judgment but there is no authority for the proposition that the Court has to take into account every piece of evidence. 17. Mr Mansfield, also pointed out the error as to the dates in the certificate to which I have referred, namely the incorrect dates for which the applicant was certified unfit. However, that is not a matter which appeared to arise as a defence during submissions to the Commissioner, nor was it something that the Commissioner referred to in his judgment. 18. The appeal from a Commissioner to the Compensation Court lies only on a question of law and not on a question of fact. A finding of fact by a Commissioner no matter how perverse or unreasonable does not constitute an error of law and is not a valid ground of appeal - see Azzopardi v Tasman UEB Industries Ltd (1985) 1 NSWCCR 150. Therefore the submissions of Ms Walsh, counsel for the applicant before the Commissioner and before me, to the extent that Ms Walsh relies on the fact that the respondent did not tender medical evidence to disprove the applicant's allegation of injury, is not a relevant matter in this appeal. The applicant bears the onus of proving her case. 19. However, a question of law does arise. The question of whether there is any evidence of a particular fact is also a question of law. See Azzopardi at page 155 when his Honour, Glass J reviews the law on the question of what constitutes an error of law and what is or could be merely an allegation of an error of fact. 20. In this particular case, the Commissioner stated that the only document tendered, which post-dated the incident in 1998 was the clinical note of Ryde Hospital. Whether that statement amounts to an error of law depends on whether or not that document, namely, the Ryde Hospital notes, deals with the issue between the parties, that is the question of nexus between the original injury in 1993 and her two days incapacity in December 1998. 21. Mr McGrowdie submitted to the Commissioner that both the Ryde Hospital Note, Exhibit H before the Commissioner, and the medical certificate of Dr MacRae, Exhibit G, were both merely historical documents and did not deal with the question of causation or nexus. I certainly think that one could construe the Ryde Hospital Emergency Department clinical record as an historical document, although the Commissioner did rely upon the note on page 2 of that document in which it was stated "Impression - L4/L5 disc prolapse with low back pain precipitated by coughing." The first page of that clinical note contains the following: A severe pain in the L4/5 region after having 'flu with cough for three days, pain worse after coughing and unable to lie flat. Pain radiating to the right knee from the back and left buttock. Sensory changes on the right side, not new. Medical history, had L4/5 disc injury since 1994 CT scan - disc prolapse, pain controlled with Panamax, Panadeine. Have appointment with specialist next month. 22. Certainly historically it would seem that the note of the hospital is consistent with the applicant's own evidence and the medical reports which were tendered in the applicant's case which predate her injury. The date of the most recent report tendered in the applicant's case was a report of Dr Grahame Mahony of February 1997 and other reports are mainly dated 1995 or 1996. It is clear from those reports that the applicant, consistent with her evidence in the witness box before the Commissioner, had ongoing problems with her back since 1993 and radiating pain or sciatica in her right leg. It was the opinion of some of the doctors whose reports were tendered that the applicant probably had a low lumbar disc lesion with nerve root irritation affecting the right limb as a result of the injury in 1993. 23. As I have said, the Ryde Hospital note is really a historical record and although the doctor examining the applicant at the hospital does make a note of his impression, that note I think would not be really sufficient evidence to satisfy a tribunal as to the causation of incapacity for the period claimed by the applicant. However, it appears that the Commissioner failed to take into account one piece of evidence which does deal, albeit very briefly and scantily, with the question of causation and I refer to the certificate of Dr MacRae. 24. In that certificate, part of the first paragraph of which is completed by the applicant herself, the doctor completed the pro-forma WorkCover certificate. In the part headed "Physical Examination" the following appears in the printed certificate. "Following my examination of this worker, it is my opinion that she is suffering from" after which the doctor has inserted "recurrent lower back pain". Further in that part, the doctor states "Cause of injury as stated to me by this worker, coughing brought on recurrence of back pain". Next, the doctor, after the following printed words on the certificate "Given the above, I consider this worker's employment is a substantial contributing factor to the injury/disease" ticked the box "Yes". Further, after the following printed words, "I consider that the clinical features are due to a previous injury/disease" - the doctor has ticked "Yes, partly" and then goes on to say "Pre-existing bad back pain exacerbated by a cough". After the printed words "Date of previous injury/disease (if known)" - the doctor has inserted "16 February 1994" which is obviously an error, and about which I do not think there was any doubt that the doctor was referring to 1993. 25. That certificate does, I think, more than simply record a history, although it certainly postdates the coughing fit and the two days off work by about two weeks and is not contemporaneous. However, in my view it does deal, albeit very briefly, with the question of causation, in that the doctor opines that the worker's employment is "a substantial contributing factor to the injury and that the clinical features were due partly to a previous injury." 26. As I have said, the question of whether there is any evidence of a particular fact has been held to be a question of law. Whether or not the Commissioner, had he considered Exhibit G, had come to the conclusion that it was insufficient to discharge the onus which lay upon the applicant is another matter. However, in my view, there is raised in this appeal a question of law, rather than simply a question of fact, in that the Commissioner appears to have accepted the respondent's submission that there was simply no medical evidence whatsoever, addressing the issue of nexus or causation of the applicant's incapacity. 27. It also appears to me that the Commissioner has misdirected himself on the law. He was referred to the case of Pickersgill by respondent's counsel and no other authorities on the question of whether or not an earlier work injury aggravated by either a later work injury with another employer or a non-work-related event could lead to anything other than a finding that the later event was the cause of the incapacity. 28. Authorities to which the Commissioner was not referred by applicant's counsel or respondent's counsel include Cluff v Dorahy Bros (1979) WCR at 167, which involved an appeal from a decision of his Honour Judge Ferrari, as he then was. In that case the worker sustained two successive injuries to his hand with one employer, the respondent in the proceedings, followed by a third injury to the same hand at a time thereafter when he was employed by a second employer, which third injury resulted in total incapacity. 29. It was held by the Court of Appeal that: It is well-established that if a worker receives an injury in the course of his employment with (A), which renders him vulnerable to increased disability by the effects of further work and then in the employment of (B), the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity resulted from the first injury in the employment of (A) and it is not to the point that if the worker had, in these circumstances, proceeded against (B), he might also have obtained an award in respect of the whole extent of his existing incapacity. It is also not open to doubt that if a worker receives a disability in the employment of (A) and subsequently receives an injury in the employment of (B) which is causally related to the original disability, it is open to the tribunal to conclude that any incapacity arising after the second injury resulted from the first injury. 30. A more recent decision of Calman v Commissioner of Police reported in 19 NSWCCR at 40 a High Court decision involving an appeal from the Police Commissioner's decision. In that case, the facts were that the applicant had an underlying anxiety disorder which continued and was capable of producing serious effects if exacerbated or aggravated. It was held in that case, reversing the Court of Appeal, that whether the particular occasion for an absence from work was triggered by an event within, or outside, the appellant's employment was irrelevant. 31. Therefore, an underlying disease or condition aggravated either by later employment or a non-work-related aggravation is capable of resulting in a finding that it was the original injury which was the cause of the applicant's incapacity. It seems that the Commissioner also misdirected himself in stating that the only relevance of the earlier injury in circumstances such as in this case, was the application of s 68A in a lump sum claim. 32. Therefore, although as I have already indicated, it was not mandatory for the Commissioner to find that the earlier work injury in 1993 was the cause of the worker's incapacity in December 1998, it seems to me for the reasons given that the Commissioner committed an error of law when he failed to take into account the medical certificate, which was the only evidence which dealt with causation. 33. I have been asked by both counsel after the submissions on the appeal were made that in the event that the worker was successful to substitute my findings and an award for the Commissioner's rather than remitting the matter back to the Commissioner for determination by him, given the very small quantum of the claim. However, unfortunately although that would obviously be a much more cost-effective manner of dealing with the matter, I do not think that the Act gives me power to do so and unless the parties can come to some agreement between themselves, I must remit the matter back to Commissioner Hunt. My orders therefore are: 1. I uphold the appeal by the worker and set aside the award of Commissioner Hunt made on 12 October 2000. 2. I remit this matter to Commissioner Hunt pursuant to s 34A(5)(a) of the Compensation Court Act (1984) for determination by the Commissioner in accordance with my decision. 3. I order that the respondent employer pay the appellant worker's costs. Ms S P Walsh instructed by Robert A Hannam & Co appeared for the applicant Mr P K Mansfield instructed by GIO Australia appeared for the respondent