An electrical engineer who claimed his work over the years had caused an aggravation injury to his neck, had his claim rejected by his employer on the basis there had been no documented injury.
In issue
- The Respondent worker’s case was that he suffered an injury to his cervical spine and upper extremities as a result of his employment from 28 May 2011 with a deemed injury date of 9 January 2019. The claim for compensation was rejected by the Appellant employer on account of medical expert evidence suggesting the Respondent had not sustained any documented or discrete injury that caused an aggravation or exacerbation. At hearing, that expert evidence, however, was determined not to have properly engaged with the relevant elements of the Workers Compensation Act 1987 (the Act), with the Member ultimately favouring the Respondent’s evidence and finding that he had indeed sustained an injury in accordance with the Act. The Appellant appealed the decision on the grounds that the Member had erred by favouring the Respondent’s evidence and by failing to find he only began to state his injury was aggravated by work at a very late stage.
The background
The Respondent submitted a worker’s compensation claim in March 2019, alleging that the nature and conditions of his workplace resulted in the emergence of neck and pain, occurring over a number of years, culminating in a reported date of injury on 9 January 2019. The Respondent had been employed full-time by the Appellant from 2011 and claimed to have worked at his desk for ‘at least 90% of the time’ at a workstation that was ‘not ergonomically conscious’. He alleged developing pain in his neck and shoulders in 2013 which resulted in changes being made following an ergonomic assessment. He started receiving chiropractic treatment in 2013 which he claims relieved his symptoms and allowed him to keep working although with continuing pain.
In June 2018, the Respondent was placed on a performance improvement plan. He claimed that, at that time, his condition was deteriorating steadily, and he was having difficulties managing his work as a result. He was then issued a final warning by the Appellant on account of his decline in performance and a final review was to occur on 15 January 2019. On 10 January 2019, he ceased work on account of his injuries. This was also the day he first consulted his general practitioner with respect to his work-related symptoms.
At the Appellant’s request, on 10 May 2019 the Respondent was examined by Dr Neil Cochrane, a neurosurgeon and spinal surgeon. The Appellant subsequently denied liability on the basis of the doctor’s report and issued dispute notices denying the Respondent’s claim in respect of treatment costs including those associated with proposed surgery that had been recommended by his treating surgeons, Dr Khong and Dr Singh.
The decision at trial
The matter was subject to a hearing on 13 October 2021 before Member Scarcella in the Personal Injury Commission NSW.
In issuing his Determination, the Member found the ‘injury’ to the Respondent’s cervical spine pursuant to s4(b)(ii) of the Act, to have occurred on 9 January 2019. The Member preferred the evidence of Dr Khong to that of Dr Cochrane and determined that the surgery proposed by Dr Khong was reasonably necessary within the meaning of section 60 of the Act and resulted from the found injury.
The Member found that the Respondent had ‘no current work capacity’ from 9 January 2019 and made a weekly award on a continuing basis from 11 April 2019. He also made orders for the payment of expenses pursuant to section 60 of the Act and for the payment of the costs to the proposed surgery.
The Member otherwise noted the Respondent’s claim relating to a ‘consequential/secondary psychological injury’ was discontinued.
The issues and decision on appeal
The Appellant raised the following grounds on appeal before Deputy President Snell in the Commission:
- The Member erred by preferring the Respondent’s reports of Drs Khong and Bodel on the question of aggravation of the Respondent’s disease to the Appellant’s report of Dr Cochrane. (Ground 1)
- The Member erred by failing to find that the Respondent only began to state that his disease was aggravated by work at a very late stage. (Ground 2)
Ground 1
The Appellant submitted that Drs Khong and Bodel had expressed the wrong test by way of their reference to the employment being a ‘substantial contributing factor’ to the injury. The Appellant referred to sections 4(b)(ii), 9A and 16 of the Act and submitted that, when read together, the test of an aggravation injury is whether employment was the ‘main contributing factor’. The doctors had in their reports used the language ‘main substantial contributing factor’.
The Appellant argued that the Member’s reason for rejecting the opinion of Dr Cochrane was that the doctor had said the Respondent did not contract the injury in the course of his employment, applying the test under section 4(b)(i) rather than section 4(b)(ii). The Appellant submitted that an incorrect reference by Dr Cochrane to the test in section 4(b)(i) was in response to a direct question put to him by the Appellant, and it did not reflect misunderstanding of the correct test on the doctor’s part.
Section 4 of the Act relevantly provides:
injury—
- means personal injury arising out of or in the course of employment,
- includes a disease injury, which means—
- a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
- the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …’.
The Deputy President noted that there was no such interaction between the test in section 4(b)(i) and section 9A of the Act as submitted by the Appellant, given section 9A does not apply to injuries governed by the ‘disease’ provisions.
The Deputy President did not consider the Member had erred in rejecting Dr Cochrane’s opinion on the basis of his application of the incorrect test. The Deputy President considered the Member’s assessment was able to be drawn from reading Dr Cochrane’s reports as a whole and did not involve error. He found the assessment represented a valid basis for the Member’s preference to Drs Khong and Bodel and determined Ground 1 was at best, an argument that ‘a different outcome is preferable’, which was unable to succeed on an appeal.
Ground 2
The Appellant submitted the significant matter was not the failure by the Respondent to report his symptoms, but rather to complain ‘that his symptoms were caused by work’. The Appellant argued that chiropractic treatment notes contained only minor suggestions relevant to whether work was a contributing factor to the Respondent’s symptoms. The Appellant submitted that the Member had failed to address the point that the Respondent made no complaints that work had caused his problems until after he had finished working.
The Respondent, however, submitted that the chiropractic records were only a minor part of the collection of evidence and were used as corroborative of the Respondent’s symptoms in forming the basis for the Member’s findings.
The Deputy President found the ground simply made an argument going to the weight afforded by the Member to the chiropractic records and failed to identify any error on the part of the Member that required correction. The Deputy President considered that, at best, the ground was a submission that an alternative result be preferred, which did not constitute appealable error consistent with the authorities.
Accordingly, the Deputy President confirmed the Member’s decision and determined the appeal unsuccessful.
Implications for you
This matter accentuates the importance of decisions being appealed against must be one to have been made in error of fact, rather than a party merely preferring that a different conclusion be drawn on the basis of those facts.
The initial decision at hearing, and that on appeal, highlights the notion that expert medical evidence which fails to address the ultimate question in terms of legality are not inevitably fatal to the acceptance of that opinion. Rather, it is the evidence in its entirety which is vital to determining the outcome.
