Amy Hume v Soertz Family Trust No 1 & 2 t/as KFC Dural
[2012] NSWWCCPD 56
•3 October 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Amy Hume v Soertz Family Trust No 1 & 2 t/as KFC Dural [2012] NSWWCCPD 56 | ||||
| APPELLANT: | Amy Hume | ||||
| RESPONDENT: | Soertz Family Trust No 1 & 2 t/as KFC Dural | ||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-11234/11 | ||||
| ARBITRATOR: | Ms C D’Souza | ||||
| DATE OF ARBITRATOR’S DECISION: | 3 July 2012 | ||||
| DATE OF APPEAL DECISION: | 3 October 2012 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; assessment of evidence; unsatisfactory presentation of appeal; non-compliance with Commission’s Practice Directions; unsatisfactory pleadings | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Schofield King Lawyers Pty Ltd | |||
| Respondent: | Gillis Delaney Lawyers | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 3 July 2012 is confirmed. Each party is to pay her or its own costs of the appeal. | ||||
BACKGROUND
Amy Hume worked for the respondent employer at KFC Dural as a casual part-time customer service worker from 2007 until April 2011. She worked about 10 hours per week. Throughout most of this time, she was a school student, completing her Higher School Certificate (HSC) in 2010.
She alleges that she suffered a strain to the ligaments in her right wrist as a result of repetitive lifting in the course of her employment with the respondent in July 2010. At the arbitration, the Application to Resolve a Dispute was amended to insert a date of injury of 30 July 2010. She claimed weekly compensation of $72 per week from 1 August 2010 to 17 November 2010, lump sum compensation of $2,750 in respect of a two per cent whole person impairment due to the condition of her right upper extremity and a general order for the payment of hospital and medical expenses.
The arbitration proceeded with submissions from both sides, but neither party sought to call any oral evidence.
In a reserved decision delivered on 3 July 2012, the Arbitrator stated that she was not persuaded that Ms Hume had established the necessary causal connection between her employment and her right wrist condition. She therefore concluded that Ms Hume had not discharged the onus of proof that she had suffered a personal injury arising out of or in the course of her employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) and she made an award for the respondent with no order as to costs.
Ms Hume has appealed the Arbitrator’s determination.
PRELIMINARY MATTER
Monetary threshold
There is no appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) unless the “amount of compensation at issue on appeal” is both “at least $5,000” and “at least 20% of the amount awarded in the decision appealed against” (s 352(3)).
The respondent has submitted that the appeal does not meet the monetary threshold in s 352(3) because the compensation at issue on appeal is only $4,530.45. That amount is made up as follows:
(a) weekly compensation totalling $1,080;
(b) lump sum compensation of $2,750, and
(c) hospital and medical expenses under s 60 of the 1987 Act of $700.45.
Ms Hume originally claimed medical expenses of $2,129.35, which included $1,428.90 for a medicolegal report from Dr Conrad. The respondent’s contention is that, once the cost of Dr Conrad’s report is excluded, as it should be because it is a medicolegal expense, the compensation at issue on the appeal is below the $5,000 threshold in s 352(3).
The respondent’s submission has ignored s 73 of the 1987 Act, which provides that “the obtaining of a permanent impairment medical certificate and any examination required for the certificate are taken to be a medical or related treatment for the purposes of Division 3” if the medical practitioner has completed WorkCover training in respect of the assessment of the degree of permanent impairment and the worker has given the employer a copy of the certificate.
There is no dispute that Dr Conrad is a WorkCover approved specialist who has completed WorkCover training in respect of the assessment of the degree of permanent impairment, or that his report, which included a permanent impairment certificate, was given to the employer. It follows that the cost of obtaining the report and the examination required for it are taken to be medical or related treatment under Div 3 of the 1987 Act, which deals with “compensation for medical, hospital and rehabilitation expenses etc”.
The term “compensation” is defined in s 4 of the 1998 Act to include “any monetary benefit under” the 1987 Act or the 1998 Act. It follows that the combined effect of s 73, and the fact that the cost of medical or related treatment is “compensation” under the legislation, is that the cost of Dr Conrad’s report is “compensation” that can be taken into account in determining if an appellant has satisfied the $5,000 threshold in s 352(3).
When the cost of Dr Conrad’s report is added to the other compensation claimed, the total compensation “at issue” in the appeal is $5,959.35 and the first threshold in s 352(3) is satisfied. As the Arbitrator made an award for the respondent, the whole of the compensation claimed is at issue and the second limb of s 352(3) is also satisfied (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
EVIDENCE
Lay evidence
Ms Hume
In a statement dated 15 February 2012, Ms Hume said that she worked for the respondent for approximately 10 hours per week doing shifts over the weekend. Her duties involved a combination of customer service and cooking. This included placing chicken pieces onto hot steel trays and carrying them to and from the warmer to be stored. This placed a strain on her wrist.
She recalled that on or around 5 July 2010 she had been called in to cover a long shift of eight hours. During the busy lunch period she had been assigned “out back” to ensure “Drive Thru” food was available for packaging of orders. She had to fry the chips. To do that, she would place them in a basket, then lift the basket and lower it into oil. Once cooked, she had to “with a fast twisting motion” empty the contents onto a tray. At the end of the shift she experienced mild pain in her wrist.
She did not report her pain to the manager because the restaurant was known to have the lowest incident rate among NSW KFC franchises. She thought it was minor and was not worth reporting. She believed it would settle with rest.
She would often swap her position with other team members if they required help or needed to take a break.
She noticed that her wrist became more painful and that she started to experience difficulties in her writing ability. This concerned her as her trial HSC exams were approaching in early August 2010.
Ms Hume saw her general practitioner, Dr Hanna, on 30 July 2010 and had x-rays. She was then referred to Dr Chan, orthopaedic surgeon, who she saw on 25 August 2010. She told him that her wrist pain became severe with prolonged writing in the preparation for the exams.
After an MRI scan, which showed minor oedema and a possible contusion injury, she purchased a wrist support and had physiotherapy
Ms Hume said that she told her manager, Mr Hannaford, on or around 30 August 2010 that she had sustained an injury in her right wrist and would not be able to work because she needed her wrist to be less strained so she would be able to study and sit her exams if she had no scribe.
In August 2010, she applied to the Board of Studies for a scribe for her trial HSC exams. That request was granted, but not her request for a scribe for the final HSC exams in late October and early November 2010.
After her exams, she returned to work for about three or four weeks and took leave for a holiday in Hong Kong. After that trip, she returned to work until she resigned on 10 April 2011.
She believes that the working conditions at KFC Dural caused her wrist pain.
Brett Hannaford
Mr Hannaford was the respondent’s manager in 2010. In his statement dated 10 February 2012, he said that from the end of July 2010 Ms Hume and her twin sister, Melissa, stated that they needed time off to study for the HSC. Though he wanted them to work at least one shift per week, they declined “as they needed to study”. After the HSC, they both returned to work in early November 2010.
He said he asked Melissa how they went in the HSC and she said they both got great results and that they had been studying 12 hours a day “for the last three months”.
Natalie Soertz
Ms Soertz is the franchisee of KFC Dural. She said that as Ms Hume was employed as a member of the customer service team, not of the food service team, her duties involved serving customers, packing orders, burger preparation, cooking chips, nuggets and popcorn chicken, and maintaining a clean restaurant and work stations. It was not part of her duties to place chicken pieces onto steel trays and carry them to and from the warmer.
Food service team members would rack cooked chicken pieces onto trays “with 1/2 racks on them and place them in the warmer”. Customer service team members would on occasion have to swap a half rack from the warmer with the empty half rack from the display cabinet. The most a half rack would carry was 18 pieces of chicken, which weighed approximately 2.5 kg. All training promoted the use of two hands when lifting, or team lifting for heavy or awkward items. There was never any mention of any activities causing a strain.
With regard to Ms Hume’s allegation that she had been called in to cover an eight hour shift on or around 5 July 2010, Ms Soertz said that, during that period, there was no shift longer than five hours and no record of an eight hour shift. There were no shifts in that period that Ms Hume had been called in to cover. All shifts she worked were her scheduled shifts.
Ms Soertz said that nowhere in training or practise was anyone required to do a task with a fast twisting motion.
With regard to the suggestion that KFC Dural had the lowest reported incident rate among KFC outlets in NSW, Ms Soertz said that this was the first time she had heard of such a comment and she had not seen any documentation to state that was the case.
At no point on return to work after her HSC or after her holiday was there any mention of any issue with hands or restrictions of tasks Ms Hume was able to complete. She returned to work under normal circumstances and continued to work as she had prior to leaving for the HSC.
Medical evidence
Dr Hanna’s notes record that he saw Ms Hume on 30 July 2010 when she recorded:
“R wrist pain 2/52
History:
Musculo-Skeletal: Joint pain, Joint stiffness. No joint swelling. No restricted movement.
Affected joints: R wrist
Examination:
Musculo-Skeletal:
Wrist: right, not red, not swollen, not hot, tender, no restriction, no crepitus, full ROM.
Actions:
Letter created – re OUR LETTERHEAD”
Nurofen”
Dr Hanna wrote a note on 30 July 2010 stating that Ms Hume had “R wrist pain which affects her writing ability”.
Dr Hanna next saw Ms Hume on 6 August 2010 when he recorded that her wrist was still sore on the lateral aspect. Examination findings were the same as on 30 July 2010. He referred her to Dr Chan, orthopaedic surgeon.
Dr Chan saw Ms Hume on 25 August 2010. He reported to Dr Hanna that Ms Hume was a 17 year old year 12 student who worked part-time at KCF Dural. She presented with a six-week history of right wrist pain. She had pain on both the radial and ulnar aspects of the wrist. He added:
“The pain is intermittent and worse with writing and with operating the car lock. Although she said that twisting motions also make the pain worse, opening doors does not cause her any discomfort. She has been taking Voltaren and also wearing a wrist support, which gives her relief. She has noticed a click during forearm rotation. There was [sic] been no history of trauma.”
On examination, there was no swelling or deformity. There was a full range of motion. There was no specific area of tenderness. Watson’s test for scapholunate instability was negative. Lunotriquetral ballottement was normal. Ballottement of the DRUJ caused a slight click and some discomfort. TFCC grind test was mildly positive. There was no midcarpal instability. The only abnormality was some pins and needles in the little finger with prolonged elbow flexion.
Dr Chan advised Ms Hume to organise her homework so that she has alternating periods of reading and writing, so that there are no prolonged periods of writing.
Dr Chan reported to Dr Hanna on 1 September 2010 that the MRI scan revealed minor oedema at the attachment of the TFCC, but there was no tear in the TFCC and no surrounding synovitis. There was a minor degree of synovitis in the pisotruquetral joint. On repeat examination, the pisotriquetral joint was not irritable. The tinel test was still negative, but forced elbow flexion was positive. Dr Chan was “not entirely certain what” was causing Ms Hume’s pain. Clinically, she had minor cubital tunnel syndrome. He referred her to a hand therapist for a night splint, and nerve gliding and stretching exercises. He asked her to return if symptoms persisted or worsened.
Dr Conrad examined Ms Hume for medicolegal purposes on 16 August 2011 and reported to her solicitors on 18 August 2011. He took a history that she had worked for KFC doing a combination of cooking and customer service work for approximately 10 hours per week while also going to school. She had to do “a lot of heavy, repetitive work with her right hand”. In the process of frying chicken pieces, she would have to put the pieces into the basket with a handle, lift the handle and basket in and out of oil, and then, with a twisting motion, empty the contents of the basket onto a tray. On one occasion, she did that for about four hours straight without rotation.
In about August 2010, Ms Hume’s right wrist became painful. She initially did not report it, as she hoped things would settle. The pain became progressively worse and by October 2010 it became quite severe. She reported the problem at work and stopped work for three months but did not fill in a workers compensation claim form.
Ms Hume saw her general practitioner and was referred to Dr Chan. She did her HSC, but had to have a scribe, as she had difficulty writing. She returned to KFC in January 2011 working 10 hours per week for about four months.
He referred to the MRI scan, which he said showed “moderate joint effusion and synovitis of the right wrist” and said that Dr Chan had diagnosed “extensor tendonopathy [sic] and ulnar nerve compression”. Ms Hume stopped work towards the end of August 2010 and, after a while, returned to work, doing her normal hours and work until she left in March 2011 for other reasons. Dr Conrad noted that Ms Hume finished her HSC in November 2010.
Under “opinion”, Dr Conrad said that Ms Hume had been “involved in heavy, repetitive work at KFC in about August 2010, as outlined under ‘History’”. As a result, she appeared to have “sustained a ligamentous strain and in particular, affecting the ligaments around the triangular fibrocartilage”. He then gave an assessment of whole person impairment.
Other evidence
Also in evidence is a document prepared by Dr Chan on 25 August 2010 for the NSW Board of Studies. Dr Chan made a provisional diagnosis of a TFCC tear. He said that the condition would affect Ms Hume’s day-to-day functioning in the classroom because of pain with prolonged writing and that she would benefit with a scribe.
THE ARBITRATOR’S REASONS
After summarising the evidence and the parties’ submissions, the Arbitrator noted that Ms Hume bore the onus of establishing that, on the balance of probabilities, she had sustained an injury within the meaning of s 4 of the 1987 Act and, if so, that her employment was a substantial contributing factor to that injury.
She said that Dr Conrad had a history that the injury had been caused by “a lot of heavy and repetitive work” at KFC, but he did not refer to her performing fast twisting movements in the course of her work and he did not refer to the trouble she had with writing which appeared to have precipitated investigation of her right wrist condition.
Dr Conrad referred to Ms Hume having performed heavy repetitive work but did not refer to specific weights or the frequency of tasks undertaken, which in his view caused the injury. He did not appear to have the benefit of any objective information on the weight of the boxes and baskets of chips, which he felt caused the injury.
Given the focus on writing difficulties and the HSC “situation” in other evidence, and given that Dr Conrad had not discussed the effects of the HSC activities, it appeared that the history on which he based his opinion was “at the least, incomplete” and was not supported by the weight of the evidence with respect to the work undertaken. The Arbitrator found this “especially noteworthy” because Ms Hume had worked for KFC since 2007, presumably doing the same type of work and there was no evidence of any similar problems during that earlier time.
Referring to the evidence from Ms Soertz and Mr Hannaford, who both denied the work was repetitive or heavy, or that handling the frying basket required fast wrist movements, the Arbitrator said that lifting items weighing up to 3 kg did not “illustrate any particularly heavy lifting”. To the extent that certain tasks may have been repetitive, the Arbitrator noted and accepted the evidence that “there was a fair degree of rotation of staff between jobs”.
The Arbitrator did not accept the submission that there was no medical evidence to refute Dr Conrad’s report. She said that KFC relied on the contemporaneous records of Dr Hanna, which contained “references to wrist pain on 30 July 2008 [sic, 2010] with no attribution of the pain to any cause”. In his certificate of 30 July 2010, Dr Hanna stated that Ms Hume had right wrist pain that affected her writing ability, with no reference to her work being the cause, or to the pain affecting her ability to perform work tasks.
Dr Chan focused on Ms Hume’s study activities, with no mention of tasks at work. In view of his comments, the Arbitrator said she could give his reports little weight with respect to causation and they did not assist Ms Hume, but gave some support to KFC.
In addition, the Arbitrator said that there was no report of injury form or contemporaneous claim form. The Arbitrator noted Ms Hume’s evidence that she had told Mr Hannaford of her injury and Mr Hannaford’s statement that she had not done so. There was no evidence of any later reference to any problems with the wrist and Ms Hume returned to work for some months after completing the HSC examinations and taking a holiday. Apart from Ms Hume’s statement, there was no evidence of any report of injury or claim until the claim made by her solicitors on 15 November 2011.
Given the above factors, and noting that there was no issue with Ms Hume’s truthfulness, the Arbitrator found it plausible that, if she did report her difficulties to Mr Hannaford, she “may not have done so in a manner which he understood to be a report of injury, and that there is no objective evidence to support Ms Hume’s allegations that the culture of KFC was not to report workplace injuries”.
On consideration of all of the matters discussed above, the Arbitrator was not persuaded that Ms Hume had established the necessary causal link between her employment and her right wrist condition. In particular, she noted the lack of contemporaneous medical and other evidence in support of the claim. Ms Hume had not discharged the onus of proof.
ISSUES IN DISPUTE
The submissions in support of the appeal have not complied with Practice Direction No 6 in that they have not properly identified the grounds of appeal. Instead, they have merely set out a discursive narrative of why Ms Hume should have succeeded interspersed with general complaints of alleged errors. That is unacceptable.
Notwithstanding the unsatisfactory state of the submissions, the issues in dispute in the appeal appear to be whether the Arbitrator erred in:
(a) incorrectly applying the statutory test in determining that Ms Hume had not discharged the onus of proof (the statutory test);
(b) determining that objective information (as to the weight of boxes and baskets of chips) was required (objective information);
(c) concluding that Dr Conrad’s history was “incomplete” and failing to give more weight to his opinion (Dr Conrad’s evidence), and
(d) preferring the incomplete or equivocal evidence from Drs Chan and Hanna (evidence of Drs Chan and Hanna).
In addition, it was argued that the Arbitrator could not reasonably have made the determination she made without “exercising some error of fact and discretion” (error of fact and discretion).
THE STATUTORY TEST
Submissions
Ms Hume’s solicitor, Mr Hunt, who did not appear at the arbitration, submitted that, in reaching the conclusion that the onus of proof had not been discharged, the Arbitrator made a demonstrable error in that she “incorrectly applied the statutory test”.
He argued that, on the balance of probabilities, there was in fact a causal link between the injury and Ms Hume’s employment formed in light of Dr Conrad’s evidence and Ms Hume’s statement and that, in finding against those opinions, with no evidence to the contrary, the Arbitrator erred in “the application of the statutory test”.
Mr Hunt said that there is contemporaneous evidence of Ms Hume receiving an injury to her right wrist in the clinical notes from Dr Hanna and in Dr Conrad’s evidence. Based on Dr Conrad’s evidence, when read with Dr Hanna’s notes, there is a causal nexus between Ms Hume’s injury and her employment.
Discussion
I do not accept the above submissions.
The Arbitrator referred to the terms of s 4 of the 1987 Act and correctly noted that Ms Hume carried the onus of proof on the balance of probabilities. She was not satisfied that Ms Hume had discharged that onus. The above submissions have provided no reasoned argument in support of the allegation that the Arbitrator erred in the application of the statutory test. The submissions have not identified the “statutory test” that the Arbitrator allegedly erred in the application of, but merely amount to an assertion that the Arbitrator erred in not accepting Ms Hume’s evidence. The failure to accept one side’s evidence may or may not amount to an error, but it does not establish that the Arbitrator incorrectly applied “the statutory test”, as Mr Hunt has alleged on appeal.
The submission that there is contemporaneous evidence that Ms Hume received an injury to her right wrist is incorrect. Ms Hume complained to Dr Hanna of pain in her wrist but made no complaint that that pain had been caused by work with the respondent. That was not a complaint of an injury caused by work. Mr Hunt’s submission was surprising, to say the least.
OBJECTIVE INFORMATION
Submissions
Referring to the Arbitrator’s statement that Dr Conrad did not appear to have had the benefit of any objective information about the weight of the boxes and baskets of chips which he felt caused the injury, Mr Hunt submitted that there is no requirement for objective information that would be used to form Dr Conrad’s opinion because “heaviness” was a subjective standard. One person may find a basket of chips heavy while another may not. The Arbitrator has made an error of law in determining that objective information was required.
Discussion
Accepting that “heaviness” can be a subjective assessment, and that Ms Hume was not required to prove the weight of the objects she lifted before she could succeed, the Arbitrator did not base her decision on the lack of objective information about the weight of the objects Ms Hume lifted in the course of her employment. That was merely one observation the Arbitrator made in her assessment of the evidence overall.
The Arbitrator did not say that “objective information” about weights was required before Dr Conrad’s opinion could be accepted, but merely noted that Dr Conrad did not appear to have had the benefit of any objective information about the weights lifted. That was not a critical part of her reasoning and is of no consequence to the outcome.
DR CONRAD’S EVIDENCE
Submissions
Mr Hunt submitted that Ms Hume’s evidence and the evidence of Dr Conrad shows that, on the balance of probabilities, there is a causal link between the injury suffered by Ms Hume and her employment.
In respect of the Arbitrator’s statement that Dr Conrad did not discuss the effects of the HSC activities, and that his history was, at the least, incomplete, Mr Hunt submitted that, in arriving at this conclusion, the Arbitrator ignored the fact that Dr Conrad was aware that, at the time of the complaints to Dr Hanna, Ms Hume was studying for her HSC. Therefore, the Arbitrator erred in concluding that Dr Conrad’s history was “at the least, incomplete”.
Just because Dr Conrad did not discuss the “HSC activities”, it did not mean that he was not aware of them. While it was conceded that Dr Conrad did not explicitly “discuss the effects of the HSC activities”, it was open to him to do so and to conclude that such activities were the causative factor of the subject injury rather than Ms Hume’s employment. The simple fact is that Dr Conrad did not reach such a conclusion, despite his knowledge of the “HSC activities”.
In light of the above, the Arbitrator made an “unsubstantiated inference into [sic] the evidence tendered by [Ms Hume] that [was] remote and irrelevant for the purpose of satisfying section 4 of the 1987 Act”. Dr Conrad determined that Ms Hume, in the course of her employment, suffered “the injury”. That the effects of the HSC possibly aggravated this injury is irrelevant in terms of causation and is a matter to be dealt with by an Approved Medical Specialist (AMS) under s 323 of the 1998 Act.
Mr Hunt argued that Dr Conrad’s opinion should have been “held with more significance [than Dr Hanna’s] in this matter due to the information provided in a consultation that would have covered more of the details of the injury over a longer consultation time”. The opinion of Dr Conrad should also be “held with more weight as he is specialized [sic] in the medical issue” and the Arbitrator “exercised an error in discretion” in assigning more “evidentiary weight upon the medical notes of Dr Emad Hanna” rather than the report of Dr Conrad.
Dr Hanna’s evidence did not provide a determinative statement on the cause of the injury and therefore did not support nor hinder Ms Hume’s claim.
Discussion
The first submission under this heading is merely an assertion that Ms Hume should have succeeded and may have been relevant on a review but is of no assistance in an appeal restricted to the identification and correction of error.
The fact that Dr Conrad was aware Ms Hume had completed her HSC in 2010 was, on its own, of no significance and did not advance Ms Hume’s case. What was important was that, as the Arbitrator noted, when Ms Hume first complained about wrist pain, it was in the context of it affecting her ability to write, but with no reference to her work. That history was inconsistent with Dr Conrad’s history of pain having being caused by activities at work, regardless of the nature of those activities.
Therefore, Dr Conrad’s history (taken one year after the event) was incomplete and, on one view, inaccurate. This undermined the weight to be attached to his evidence and the Arbitrator was entitled to consider the incomplete history in her assessment of the case.
The submission that it was open to Dr Conrad to have discussed the effects of the HSC activities, and to conclude that such activities were the causative factor of the subject injury, ignores the evidence and is irrelevant. Dr Conrad did not address that issue because he had a completely different history to that recorded by Dr Hanna.
The submission that the Arbitrator drew an unsubstantiated inference from Ms Hume’s evidence that was remote and irrelevant is unsustainable nonsense. The unsubstantiated inference the Arbitrator drew has not been identified. The Arbitrator concluded that Dr Conrad’s history was, at the least, incomplete. That statement was open to the Arbitrator and discloses no error.
The submission that Dr Conrad determined that Ms Hume had suffered “the injury” in the course of her employment misunderstands the nature of the issue in dispute. The question of whether a worker has received an injury under s 4 is a matter for the Commission. In determining that question, the Commission must consider all the evidence. Expert medical evidence will be important, but not determinative.
Contrary to Mr Hunt’s submission, the effects of Ms Hume’s studying for the HSC were not irrelevant to the question of whether she had received a s 4 injury. Dr Hanna’s history, which Ms Hume never challenged or disputed, was important evidence as to whether Ms Hume had received an injury and was evidence the Arbitrator was entitled to consider. There is no evidence that Ms Hume had received an injury with KFC that was subsequently aggravated by study for the HSC.
The submission that Dr Conrad is “specialized [sic]” in the medical issue is, I assume, a submission that, as a specialist, Dr Conrad’s opinion is entitled to greater weight than the evidence from Dr Hanna, a general practitioner. While it may well be that, in some cases, an Arbitrator is entitled to prefer the evidence of a specialist to a general practitioner, that will depend on the evidence in the case.
In the circumstances of the present matter, the Arbitrator was not satisfied that Ms Hume had discharged the onus of proof. One reason for reaching that conclusion was that she did not accept Dr Conrad’s evidence. For the reasons discussed above, that was open to her.
Contrary to Mr Hunt’s submission, the Arbitrator did not assign more evidentiary weight to Dr Hanna’s notes than to Dr Conrad’s report. She correctly noted that Dr Hanna took a history of wrist pain, but did not attribute that pain to any cause and made no reference to work being a cause. That history was significant and the Arbitrator was entitled to rely on it in assessing the weight to be attached to the other evidence in the case.
In summary, Dr Conrad’s evidence had to be considered with all the evidence in the case and his opinion was only as good as the foundation upon which it was based (City of Brimbank v Halilovic [2000] VSCA 12 at [23] - [24]). That foundation was unreliable and not accepted. Having considered all the relevant evidence, the Arbitrator concluded that Dr Conrad’s opinion was not to be preferred and that Ms Hume had not made out her case. That conclusion was open to her and disclosed no error.
EVIDENCE OF DRS CHAN AND HANNA
Submissions
Mr Hunt submitted that Dr Chan did not advise of the cause of the injury, nor even attempt to do so. He described the injury in detail and took a history that Ms Hume worked for KFC. He did not diagnose the cause of the injury though, given the history, the inference should be drawn that working with the respondent was a causative factor.
Given that neither Dr Chan nor Dr Hanna provided a definitive conclusion as to the cause of Ms Hume’s wrist injury, it was submitted that it was erroneous to prefer “incomplete or equivocal evidence in the face of the detailed opinion of a specialist practitioner (Dr Conrad)” and Ms Hume’s evidence. This is particularly relevant given that the respondent did not provide any evidence to the contrary and did not call any evidence on the issue of causation.
The evidence of Dr Conrad and Ms Hume clearly state that the injury was caused by Ms Hume’s employment and the Arbitrator should have concluded the same in the absence of any evidence to the contrary.
Discussion
I do not accept these submissions.
There is no basis for the submission that an inference should be drawn that Dr Chan thought that work with the respondent was a causative factor in the development of Ms Hume’s symptoms. The fact that he had a history that Ms Hume worked part-time at KFC, but took no history of any symptoms caused by that work, strongly points to the opposite conclusion. The Arbitrator did not err in not drawing the inference suggested.
The Arbitrator did not prefer “incomplete or equivocal evidence”. She said that, with respect to causation, she could give little weight to Dr Chan’s reports. Her statement that they did not “assist Ms Hume”, but gave some support to the respondent, was correct. Dr Chan did support an allegation of injury with the respondent and his history of pain being intermittent and “worse with writing” undermined that allegation.
The submission that the respondent did not call any evidence on the issue of causation was incorrect. Ms Soertz gave evidence relevant to that issue and Mr Hannaford also gave evidence relevant to whether any injury had been reported. As there is no evidence that the respondent had Ms Hume examined by a medical expert, there is no Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference available. The fact that the respondent did not tender evidence from a qualified medical expert was not determinative. Ms Hume carried the onus of proving her case and she failed to discharge that onus.
It is correct that Dr Conrad and Ms Hume both stated that the injury was caused by Ms Hume’s employment. However, that was not the only evidence in the case and the Arbitrator was not bound to accept their evidence. That was especially so in light of the evidence from Drs Chan and Hanna, neither of which made any reference to work with the respondent having been responsible for the symptoms, and the evidence from Mr Hannaford and Ms Soertz, which undermined Ms Hume’s evidence that she reported her pain and that her work was heavy and repetitive.
ERROR OF FACT AND DISCRETION
Submissions
On the sum of the contemporaneous evidence there is proof, on the balance of probabilities, that Ms Hume discharged her onus to prove the causal link between the injury and the course of employment pursuant to s 4 of the 1987 Act and the appeal should be allowed.
Taking into account Ms Hume’s statement and Dr Conrad’s report, the Arbitrator could not have reasonably made the determination she did without exercising some error of fact and discretion.
Discussion
The first submission is essentially a repetition of the submissions already considered and rejected. It is based on an assumption that the Arbitrator had to accept the evidence from Dr Conrad and Ms Hume. That assumption is misguided and wrong. The Arbitrator did not accept Dr Conrad’s evidence because his history was incomplete and she did not accept that the work involved heavy lifting or that it was repetitive. That conclusion was open and discloses no error.
Moreover, the Arbitrator gave detailed reasons as to why she did not accept Ms Hume’s case. In addition to the reasons discussed above, the Arbitrator also referred to the lack of any report of injury form or contemporaneous claim form. With regard to Ms Hume’s evidence that she told Mr Hannaford of her injury, the Arbitrator noted his denial of any such report and added that, if Ms Hume had reported her difficulties to him, it was “most plausible” that she may not have done so in manner which he understood to be a report of injury.
Rather than the contemporaneous evidence supporting Ms Hume, it is strongly against her.
The submission that the Arbitrator could not reasonably have made the determination she did without exercising some error of fact or discretion was meaningless. Appeals under s 352 are restricted to the identification and correction of error. The broad-brush assertion that the Arbitrator could not have made her determination without having made some error was unhelpful and did not advance Ms Hume’s case.
OTHER MATTERS
Several aspects of this appeal require further comment.
Mr Hunt’s submissions did not comply with Practice Direction No 6 in that they did not properly identify any grounds of appeal or make submissions directed to those grounds. The submissions were not paginated and did not have numbered paragraphs. They consisted, in several instances, of general assertions unsupported by any reasoned argument addressed to the identification of error. The profession is reminded, yet again, that non-compliance with the Practice Direction is unacceptable.
The amended pleadings in this matter were also unsatisfactory. They alleged that Ms Hume received an injury on 30 July 2010. As submitted by the respondent, that allegation did not correlate with either Dr Conrad’s history or Ms Hume’s statement. Therefore, the pleadings did not match the case presented. While nothing turns on it on the appeal, because it makes no difference to the result, parties are reminded that pleadings should be consistent with the evidence.
Though the Commission is not bound by strict pleadings, applications for relief should clearly and succinctly state the case that the respondent must meet (Far West Area Health Service v Radford [2003] NSWWCCPD 10). Properly, that should occur when the claim is first particularised. However, amendments can and should be made later, subject to any prejudice to the respondent, so that the case is correctly pleaded and the issues are clearly stated.
The particulars/pleadings should properly identify the nature of the alleged injury, how it was said to have been caused, and, in particular, whether the alleged injury is a “personal injury” under s 4(a), or a disease injury under s 4(b)(i), or an aggravation of a disease under s 4(b)(ii) of the 1987 Act. As to the purpose served by pleadings generally, see Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286 – 287.
DECISION
The Arbitrator’s determination of 3 July 2012 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
3 October 2012
I, TAMI O’CARROLL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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