Alder v Allworks & Trades Pty Ltd
[2013] NSWWCCPD 71
•18 December 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Alder v Allworks & Trades Pty Ltd [2013] NSWWCCPD 71 | ||
| APPELLANT: | Breeana and Ryan Alder | ||
| RESPONDENT: | Allworks & Trades Pty Ltd | ||
| INSURER: | Employers Mutual NSW Limited | ||
| FILE NUMBER: | A1-9704/12 | ||
| ARBITRATOR: | Mr J Wynyard | ||
| DATE OF ARBITRATOR’S DECISION: | 24 September 2013 | ||
| DATE OF APPEAL DECISION: | 18 December 2013 | ||
| SUBJECT MATTER OF DECISION: | Claim in respect of ‘consequential loss’; proof of causation; challenge to factual findings | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Cohen & Krass Lawyers | |
| Respondent: | Stephen Lee Legal | ||
| ORDERS MADE ON APPEAL: | 1. The award and order found in the Certificate of Determination which was issued following the Arbitrator’s determination made on 18 September 2013 are confirmed. 2. No order as to costs of this appeal. | ||
INTRODUCTION
The late Gregory Phillip Alder (the deceased) commenced proceedings against his former employer, Allworks & Trades Pty Ltd (the respondent) in August 2012. The claim was in respect of lump sums pursuant to s 66 and the former s 67 of the Workers Compensation Act 1987 (the 1987 Act). The deceased had received injury to his left shoulder on 24 August 2007 in the course of his employment.
Following the death of the deceased, which occurred on 28 April 2013, an order pursuant to r 18.4 of the Workers Compensation Rules 2011 was made substituting the deceased’s children Breeana Alder and Ryan Alder (the appellants) as applicants for the purpose of further conduct of the proceedings.
The deceased had been paid a lump sum pursuant to s 66 in, it seems, 2010. A complying agreement (s 66A of the 1987 Act) was entered into by the deceased and the respondent. That compensation, whilst misdescribed in that agreement, was agreed by the parties to be in respect of the left shoulder injury and resultant whole person impairment.
The deceased subsequently alleged that he had suffered a consequential condition, namely right shoulder disability, as a result of favouring his left arm and shoulder and overuse of his right arm and shoulder. His claim, made on his behalf in October 2011, was in respect of a further lump sum pursuant to s 66 and compensation by way of lump sum pursuant to the former s 67 in respect of pain and suffering. The respondent’s insurer declined the claim. The claim in respect of pain and suffering did not survive following the death of the deceased: former s 67(5).
The dispute concerning the outstanding claim made pursuant to s 66 came before Arbitrator Wynyard for conciliation/arbitration on 18 September 2013. The Arbitrator delivered an extempore decision on that day. An award was entered in favour of the respondent. A Certificate of Determination records entry of that award. No order was made as to costs.
PRELIMINARY MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The parties consent to the matter being heard “on the papers”. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.
ISSUES IN DISPUTE
The appellants, in disregard of Practice Direction No 6, have not stated the grounds upon which the Arbitrator’s decision is challenged. The Application filed in support of the appeal contains a summary of relevant events and some of the evidence before the Commission. Thereafter, a series of submissions (between [17] and [22] of the written submissions) address the findings of the Arbitrator and his reasoning leading to those findings. Error is suggested on the part of the Arbitrator in that “he approached the case not on the basis of whether [the deceased] suffered from a consequential condition, but rather he sustained a right shoulder injury” (at [18] of submissions).
A complaint is also made that “an incorrect test” was applied by the Arbitrator “in requiring of [the appellants] that it be shown that [the deceased’s] right shoulder was injured as a result of ‘strenuous activities’”.
Doing the best I can in the circumstances, I consider it is reasonable to conclude from the manner in which the submissions are presented that the appellants suggest error of the Arbitrator in the following respects:
(a) asking the wrong question, being whether injury to the right shoulder was received, and
(b) applying an incorrect test to determine liability in respect of the condition of the right shoulder.
ARBITRAL PROCEEDINGS
Each party was represented before the Arbitrator. A transcript (T) has been produced of those proceedings, and a copy has been made available to the parties.
Counsel for the appellants identified the nature of the claim as being one in respect of “consequential injury” (at T3). There was no dispute that the deceased had injured his left shoulder and had subsequently undergone surgical repair at the hands of Dr MacDougal, orthopaedic surgeon. It was noted that earlier proceedings had been settled by agreement concerning entitlement to weekly compensation, lump sum entitlement (s 66) and medical expenses. It was accepted that any entitlement to s 67 lump sum was extinguished upon the death of the deceased.
The evidence
The evidence relevant to the claim included a statement made by the deceased dated 17 August 2012. That statement includes the following:
“…I have continued with shoulder pain and limitation. As well as my left shoulder, which was injured, I also have soreness and pain in my right shoulder which has come on in the last 12 months as a result of favouring the right [sic, left] one.”
There is in evidence a medico legal report of Dr Peter Conrad, general surgeon, dated 5 October 2011. Dr Conrad records relevant history of injury and treatment as well as “present symptoms”. It is there recorded:
“Recently, due to favouring his left arm and overusing the right arm he has had pain and stiffness in the right shoulder.”
It was Dr Conrad’s opinion that overuse of the deceased’s right arm “over the last twelve months” had caused him to sustain “a right rotator cuff injury”. That report included an assessment of whole person impairment which took into account disability in the right upper extremity/shoulder as well as the left upper extremity/shoulder. It was this evidence that the deceased relied upon in support of the claim made in October 2011.
A very large volume of medical reports and records, most of which had little relevance to the issues in dispute, had been tendered by the appellants. However, one of those reports, of Dr Peter E Giblin, orthopaedic surgeon, dated 25 June 2009, which had been obtained by the deceased’s solicitors for medico-legal purposes, included the following statement: “[i]t is not unreasonable to have the clinical expectation that in the medium term, as [Mr Alder] favours the left shoulder more and more, he will develop similar complimentary soft tissue injury / symptoms in the right shoulder.”
There were nine reports in evidence prepared by Dr Frank Machart, orthopaedic surgeon. Those reports were dated between November 2007 and July 2012. Dr Machart had examined the deceased on five separate occasions at the request of the respondent’s insurer.
The second examination of the deceased is recorded in Dr Machart’s report dated 12 March 2009. Of relevance to the present facts, Dr Machart recorded on that occasion that the deceased’s right shoulder was “asymptomatic” and that comparison was made with that joint when the left shoulder was examined. Some restriction of movement was noted by Dr Machart in the right shoulder at that time.
The deceased was examined by Dr Machart in November 2010. On that occasion, Dr Machart noted that the deceased’s right shoulder was “asymptomatic”.
Dr Machart re-examined the deceased in July 2012 with the express purpose of assessing “the right shoulder in a claim of injury related to the initial incident in 2007” (emphasis included in original).
The history recorded was that the deceased had developed right shoulder pain “approximately 12 months ago or longer, allegedly because of overuse”. When questioned as to his activities concerning the “claimed over use” Dr Machart reported that the deceased said that “he was not doing anything strenuous. He stayed at home most of the time. He was not able to conduct physical activities”.
Dr Machart, following physical examination on that occasion, stated that “[i]n the right shoulder, there appeared to be positive impingement”. The diagnosis of bi-lateral shoulder rotator cuff disease was made. With respect to the right shoulder, Dr Machart further opined:
“[r]ight shoulder rotator cuff disease, degenerative condition, not caused by the injury in 2007.”
Dr Machart further stated in that report:
“At the time of my previous assessment, Mr Alder did not complain of right shoulder symptoms. The right shoulder was asymptomatic although I did note restriction of movement which I documented. No specific injury to the right shoulder was ever reported then or now. Given that he has not been doing anything strenuous since the time of the injury, and is not doing anything strenuous now, I do not see that a case could be made for injury to the right shoulder in relation to left shoulder as a matter of overuse.
I noted that he sought no medical attention from his treating doctors, that the ‘injury’ was only picked up by a medico-legal assessment, and that he has not seen any doctors or had treatment.
I do not see the right shoulder pathology as related to the injury to the left shoulder in 2007.”
Submissions
In submissions before the Arbitrator, the respondent’s counsel noted that the first record of complaint of right shoulder pain was to be found in the report of Dr Conrad. The evidence, it was argued, did not “suggest in what way [the deceased] was over using [the right arm] in order to protect the [left shoulder]”.
It was further put that the evidence of the deceased and Dr Conrad concerning overuse causing right shoulder disability were “mere assertions”.
Reliance was placed upon the evidence of Dr Machart in support of an argument that the deceased had not suffered a “consequential loss”. It was put that the evidence did not support a conclusion that there was a causal connection between the injury to the left shoulder and the disability suffered in the right shoulder. The onus upon the appellant had not, it was argued, been discharged.
It was put by counsel for the appellants that the evidence of Dr Machart supports “the proposition that [the deceased] was deteriorating over time in terms of his right shoulder”. The restrictions of movement noted by Dr Machart correspond, it was put, to the findings made by Dr Conrad eleven months later. Dr Machart’s later evidence, in the July 2012 report, demonstrates “clinical evidence of a right shoulder problem” (at T15).
When questioned by the Arbitrator as to “what sort of activities” were involved by way of overuse, counsel suggested day to day activities and those activities demonstrated on film which had been seen and commented upon by Dr Machart. It was emphasised by counsel that the evidence of the deceased “is un-contradicted and consistent in terms of [right shoulder] injury [sic]” (T19).
The issue for determination was stated by counsel to concern whether the Arbitrator was:
“... persuaded [as to] the connection between the [left shoulder injury] and the consequential [loss to] the right.”
It was put that the Commission could presume that the deceased was “leading a normal life” and conducting “every day activities”.
The Arbitrator’s reasons
At the outset of his extempore decision, the Arbitrator stated that:
“The evidence simply does not satisfy me that that which [the deceased] had to prove has been established on the civil onus of the balance of probabilities.”
The Arbitrator observed that in the evidence of Dr Conrad, upon whom the deceased relied for support of his allegation of “consequential condition”, “the mechanics of the onset of this problem with the right shoulder was not explored at all” (T22).
The Arbitrator rejected the submission put, which he summarised as being “it was the ordinary daily activities that had led to the favouring”. Rejection of that argument was stated to be founded upon the absence of evidence “that any of those particular activities were of a sufficient magnitude to create an injury [sic] in the right shoulder. Certainly the mechanics of the onset of injury [sic] were not explored by Dr Conrad” (T24).
The Arbitrator found that the evidence of the deceased, the history recorded by Dr Conrad and that recorded by Dr Machart demonstrated “discrepancies as to when the [right shoulder] trouble began” (T25).
The Arbitrator returned to counsel’s argument that “every day activities would have caused [the deceased] to over use the right shoulder”. That submission was characterised as being both “disingenuous” and “speculative”. The Arbitrator declined to draw an inference “that whatever Mr Alder was doing during the day would have had sufficient exertion to cause damage to the right shoulder”.
The Arbitrator proceeded to make general observations concerning the evidence of Dr Machart following which an award in favour of the respondent was made.
SUBMISSIONS, DISCUSSION AND FINDINGS
It is argued that the Arbitrator had erred by approaching “the case not on the basis of whether Mr Alder suffered from a consequential condition, but rather whether he sustained a right shoulder injury”.
The nature of the claim was not plainly stated in the application considered by the Arbitrator, nor during argument put before him. However, it is clear that the claim concerned the well recognised concept of an alleged “consequential loss”. It is true that the Arbitrator made reference to “injury” on a number of occasions in the course of his Reasons (see [32] above). However it is clear, in my opinion, that the Arbitrator was not addressing a requirement to prove “injury” in terms of s 4 of the 1987 Act, but rather consequential loss as has been addressed in many decisions of the Commission (see discussion by Roche DP in Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (between [52] and [73]).
Reliance is placed by the appellants upon the decision in Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon). That decision concerned facts similar to the present, being a claim in respect of a consequential loss arising from left sided shoulder disability allegedly causally related to a compensable right shoulder injury. As with the present matter, the evidence concerning overuse and circumstances of the onset of the alleged consequential condition was scant, and the Deputy President was required to examine the medical evidence to enable the Commission to “piece together” Mr Moon’s case (Moon at [23]).
The Commission in Moon, following a careful and detailed analysis of the evidence of five expert medical witnesses, concluded on a review of the Arbitrator’s decision that Mr Moon’s “left shoulder symptoms [had] resulted from his right shoulder injury” (Moon at [48]).
A further finding was made in Moon, which is raised by the appellants in written submissions on this appeal, that:
“…the overuse of the left shoulder as a result of restrictions in the right shoulder is, in the circumstances of the present case, so obvious that it requires no further explanation by the medical experts (Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88] – [89]).” (Moon at [49])
There are two matters that must be noted. First, each case must be determined on its own facts. The decision in Moon concerning proof of “causation” can in no way be treated as authority supporting a similar conclusion on the present facts. Secondly, the appeal in Moon was one by way of a review of the Arbitrator’s decision as was permitted by s 352(5) as it stood before amendment in 2011. The present appeal is governed by the amended s 352(5) which provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Both Dr Conrad and Dr Machart were of the opinion that Mr Alder had evidence of abnormal pathology in his right shoulder. Dr Conrad described the condition as “right rotator cuff injury”. Dr Machart’s diagnosis was expressed as “right shoulder rotator cuff disease, degenerative condition”. Dr Machart expressly stated that the condition diagnosed in the right shoulder was not caused by the injury in 2007. That opinion had been expressed after specific enquiry had been made concerning onset of symptoms in the right shoulder and physical activity (overuse).
The Arbitrator appears to have accepted that the deceased had experienced painful symptoms in his right shoulder, and it is clear that he accepted that there were “restrictions in the right shoulder movement” (T26.25). The Arbitrator stated that “the only explanation before me as to the difficulties with the right shoulder comes from Dr Machart”. It is reasonably clear that the Arbitrator had accepted the evidence of Dr Machart that the condition diagnosed was “degenerative” and had no causal nexus to the 2007 injury. That conclusion was open to the Arbitrator on the evidence and no relevant error has been demonstrated.
The appellants’ suggestion of error by reason of application of an “incorrect test” must be rejected. It is not suggested that any error of law was committed. It seems factual error is suggested having regard to the Arbitrator’s reference in the course of reasons to “activities… of a sufficient magnitude to create an injury in the right shoulder”, and the evidence that Mr Alder “was not doing anything strenuous”. In my view, what the Arbitrator appears to have remarked upon, in those passages emphasised in submissions, was the absence of any evidence concerning activity involving overuse of the right shoulder joint. The reference to “strenuous” activity made by the Arbitrator reflects the history recorded by Dr Machart, noted at [21] above. No relevant error has been made out. The appeal must fail.
DECISION
The award and order found in the Certificate of Determination which was issued following the Arbitrator’s determination made on 18 September 2013 are confirmed.
COSTS
No order as to costs of this appeal.
Kevin O'Grady
Deputy President
18 December 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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