Brambles Industries Limited v Bell [2010] NSWCA 162
The NSW Court of Appeal has dismissed an appeal from a Presidential Member of the Workers Compensation Commission ('WCC'), holding that there was no error in law by relying upon a medical opinion expressed in a report which, on one view, did not provide adequate reasons for the opinion.
Background
On 20 January 2003 the worker suffered a back injury in the course of his employment as a truck driver with Brambles. He lost no time from work but performed suitable duties for a time before returning to his pre-injury duties. He alleged three recurrences of a back disability in 2004 and 2005 before leaving the employ of Brambles in March 2007. In May 2007, he commenced employment with Morrison, again as a truck driver. On 12 June 2007 his truck overturned in the course of his employment with Morrison and he sustained multiple injuries. A claim for compensation benefits was accepted by Morrison. He did not resume employment with Morrison but on 31 July 2007 commenced work with another employer as a truck driver. On 21 September 2007 he awoke at home with a recurrence of painful back symptoms which prevented him from resuming work. A claim for compensation was made against Brambles, who disputed the claim.
Workers Compensation Commission
The matter proceeded to a hearing before a WCC Arbitrator who awarded compensation against Brambles. On 18 June 2009, Brambles appealed to a Presidential Member.
The Presidential Member reviewed the medical evidence, which was conflicting on the issue of causation and which included a CT scan report of 29 January 2003 which showed a disc protrusion at the L4/5 level and an MRI scan of January 2008, which reported a 'progression' of the disc protrusion as well as disc pathology at another level.
The Presidential Member found that the worker's incapacity from September 2007 resulted from disc damage caused by the injury in 2003. He accepted the opinion of Dr Conrad who, in a principal report dated 18 December 2007, concluded that the 2003 injury was the sole causative factor. The MRI scan of January 2008 was subsequently provided to Dr Conrad who, in a further report dated 31 January 2008, merely stated that it did not change the view he expressed in his earlier report.
Court of Appeal
Brambles appealed on the ground that the Deputy President erred in law by accepting Dr Conrad's opinion on causation because Dr Conrad did not explain why the results of the MRI scan of January 2008 did not alter his previously expressed view. The opinion was therefore inadmissible and / or of no rational probative value.
The Court of Appeal unanimously dismissed the appeal.
Justice Hodgson noted that the correct interpretation of Dr Conrad's report was a question of fact, not law. Whilst he conceded that it would have been preferable if Dr Conrad expressed his opinion why the later scan was consistent with the natural progression of the 2003 injury, the omission to provide an explanation went only to the degree of weight to be given to the opinion. It did not make the opinion inadmissible.
Justice Tobias noticed that it is not unusual in personal injury cases for medical reports to be tendered without any oral evidence being called. The result is that the 'judicial officer hearing the case is unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified. The costs of obtaining a supplementary medical report will pale into insignificance against the costs of litigation resulting from a failure to carefully consider the relevant evidence in a timely and efficient manner'.
Comment
The Court of Appeal has given a 'wake up call' to those who practice in the personal injury area. In jurisdictions such as the WCC, where the usual practice is to tender medical reports without calling oral evidence from the author of the reports, it is important to ensure that the reports are clearly expressed and supported by complete reasoning. Even if a supplementary medical report is necessary, the cost of obtaining such reports or applying to admit such reports as fresh evidence 'pales into insignificance' when compared with the cost of an appeal. If gaps in the reports are not filled or clarified a party runs the risk of an adverse outcome based upon an arguable construction of the report.
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