Arquero v Shannons Anti Corrosion Engineers Pty Ltd
[2019] NSWWCCPD 3
•29 January 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 | |
| APPELLANT: | Eduardo Arquero | |
| RESPONDENT: | Shannons Anti Corrosion Engineers Pty Ltd | |
| INSURER: | AAI Limited trading as GIO – agent for Icare Workers Insurance | |
| FILE NUMBER: | A1-2974/18 | |
| ARBITRATOR: | Ms C McDonald | |
| DATE OF ARBITRATOR’S DECISION: | 16 August 2018 | |
| DATE OF APPEAL DECISION: | 29 January 2019 | |
| SUBJECT MATTER OF DECISION: | Consequential condition – diagnosis not required – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 applied; error in failing to accept the opinion of the medical expert | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Santone Lawyers |
| Respondent: | Turkslegal | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 16 August 2018 is revoked. 2. Mr Arquero’s left knee condition is a consequential condition resulting from the right knee injury on 18 December 2000. 3. I remit the matter to the Registrar for referral to an Approved Medical Specialist for assessment of the permanent loss of efficient use of: (a) the right leg at or above the knee (including below the knee) as a result of injury on 18 December 2000, and (b) the left leg at or above the knee (including below the knee) as a result of the consequential condition that results from the injury to right knee on 18 December 2000. | |
INTRODUCTION
Mr Eduardo Arquero suffered injury to his right knee on 18 December 2000 in the course of his employment with Shannons Anti Corrosion Engineers Pty Ltd (Shannons). He was paid lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in 2003 in respect of 27% permanent loss of efficient use of his right leg at or above the knee.
Mr Arquero made a further claim pursuant to s 66 in 2011, following which he was assessed by Dr Thomas Rosenthal, Approved Medical Specialist (AMS), and a Medical Assessment Certificate (MAC) was issued, certifying the loss of efficient use of the right leg at or above the knee to be 40% (a further 13%). Mr Arquero was compensated accordingly.
These proceedings concern a further claim pursuant to s 66, in which Mr Arquero alleged additional loss of efficient use of the right leg, but also alleged that as a result of the right knee condition, he suffered from a consequential left knee condition for which he was entitled to be compensated.
BACKGROUND
Prior to the right knee injury, Mr Arquero had been an active sportsman, and for many years played soccer at premier league level. During his soccer career, he suffered injuries to his right knee for which arthroscopic surgery was performed. The surgery was successful and he returned to competitive sport, reporting no ongoing difficulties until the work-related right knee injury on 18 December 2000.
Following the injury on 18 December 2000, Mr Arquero sought treatment and was referred to Dr Rhys Gray, orthopaedic surgeon, who performed an arthroscopy on 6 February 2001. Mr Arquero’s symptoms improved, but subsequently worsened. He was later referred to Professor Lawrence Kohan, orthopaedic surgeon, who performed a proximal tibial osteotomy on 7 February 2005. Professor Kohan reported a good result from the surgery. Professor Kohan performed further surgery on 1 April 2006 to remove the internal fixation plate and screws.
Mr Arquero reported continuing worsening of his right knee, and complained of the onset of left knee symptoms in about 2014 or early 2015.
Shannons disputed that the left knee condition was related to the right knee injury, and the extent of the losses claimed.
The matter proceeded to arbitration. The Arbitrator handed down oral reasons and her decision on 15 August 2018 and issued a Certificate of Determination (COD) dated 16 August 2018. She determined that Mr Arquero had not discharged the onus of proof that he suffered from a consequential condition in his left leg as a result of his right leg injury. The Arbitrator referred the issue of the extent of Mr Arquero’s degree of permanent impairment of the right leg to an AMS for assessment.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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. This is the appropriate course in the circumstances.
THRESHOLD MATTERS
Section 352(3) of the 1998 Act provides that there is no appeal against a decision of an arbitrator unless the amount in issue is at least $5,000 (s 352(3)(a)) and at least 20% of the amount awarded (s 352(3)(b)). Mr Arquero claims a further amount pursuant to s 66 of the 1987 Act in respect of his right knee, as well as a lump sum of $6,750 in respect of his left knee complaints. The total amount claimed is $18,000.
No amount of compensation was awarded. Where a decision of an Arbitrator does not concern an “award” of compensation the appeal must nonetheless affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(3)(b).[1] In such circumstances, the amount of compensation at issue on the appeal is the total of the claim before the Arbitrator.[2]
[1] Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5.
[2] Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 3.
The amount in issue before the Arbitrator in this case is $18,000, and the monetary threshold required by s 352(3) is satisfied.
There is no issue that the appeal was filed within the time frame prescribed by s 352(4) of the 1998 Act and neither party seeks to adduce fresh or additional evidence in accordance with s 352(6) of the 1998 Act.
Mr Arquero maintains that the decision appealed against is a final, rather than interlocutory decision for the purposes of s 352(3A) of the 1998 Act. Shannons does not indicate whether it is, or is not an interlocutory decision.
The determination of whether an order is final or interlocutory requires a consideration of whether the determination finally determines the rights of the parties in respect of a principal cause pending between them. The question is answered by determining whether the legal, rather than the practical, effect of the judgment is final.[3]
[3] Despot v Registrar General of New South Wales [2016] NSWCA 5 per Gleeson JA (Leeming JA and Sackville AJA agreeing), [93].
The Arbitrator has determined the substantive issue before her, that is the issue as to whether Mr Arquero’s left knee condition results from the right knee injury. The principal issue between the parties has been finally dealt with and on that basis the Arbitrator’s determination is final, rather than interlocutory. Leave to appeal is not required.
THE EVIDENCE
Mr Arquero’s evidence
Mr Arquero provided a statement dated 13 May 2018.[4]
[4] Application to Resolve a Dispute (ARD), pp 1–2.
Mr Arquero described his early soccer career and said that at the age of 17 he suffered injuries to his right knee and underwent two arthroscopic procedures. He said he recovered well, and had no further difficulties with his knee until the work injury on 18 December 2000. He mentioned also having suffered an Achilles tendon injury, which appears to have occurred in about 2013.
Mr Arquero said that on 18 December 2000, in the course of his employment with Shannons, he fell from the top step of a crane onto a solid ground surface, landing awkwardly on his right leg and causing injury to his right knee. He consulted his general practitioner, Dr R Verma, who referred him to Dr Gray, orthopaedic surgeon.
Mr Arquero provided a history of the treatment he received, including the surgeries in 2001, 2005 and 2006, injections of cortisone, physiotherapy and referral to a pain management specialist.
Mr Arquero reported that the surgeries (including the tibial osteotomy) did not improve his symptoms and the condition of his right knee worsened. He said he was unable to continue working for Shannons, which was predominantly crane driving work. He found suitable alternate work in supervisory/ management roles. He said the only further treatment option that has been considered was a total knee replacement, but he was told that it was not advisable because of his age. He has elected not to undergo that surgery.
Mr Arquero described his ongoing difficulties. He said that he has limped since 2005 (soon after the tibial osteotomy) and in late 2014 he began to experience left knee symptoms. Mr Arquero said that he has not had any treatment for the left knee, but Professor Kohan organised weight bearing x-rays on both knees and at the consultation on 10 January 2017, Professor Kohan commented on the deteriorating left knee condition.
Mr Arquero complained that he had ongoing difficulties with squatting, climbing stairs and ladders, walking and driving long distances, running, playing the sports he previously enjoyed, gardening, housework, sleeping and activities with his children. Mr Arquero said that he constantly requires strong pain killing medication.
Mr Arquero provided a supplementary statement dated 13 July 2018.[5]
[5] Application to Admit Late Documents dated 17 July 2018 (AALD), p 1.
He reiterated that he began to notice pain in his left knee in 2014. He said that his main concern has always been the significant symptoms in his right knee, but that over the previous twelve months his left knee symptoms had been worse than his right knee.
Mr Arquero said that he believed the strong pain killing medication he had been taking masked the onset of his left knee symptoms. He confirmed that he had walked with a limp since the operation in 2005, and that Professor Kohan had informed him that the limp would be permanent. He further confirmed that Professor Kohan had organised weight bearing x-rays of both knees, but Mr Arquero said that the x-ray reported only on the right knee. Mr Arquero repeated that at the consultation following the weight bearing x-ray, he and Professor Kohan discussed the deterioration in the left knee, but the main concern was his right knee.
He asserted that his left knee had gradually worsened because of his altered gait.
The medical evidence
Doctor Colin Selby Brown provided a medicolegal report dated 24 July 2003, directed to Mr Arquero’s previous solicitors.[6] Dr Selby Brown reviewed the medical history in respect of the right knee and the radiological investigations conducted between 22 December 2000 and 23 April 2004. He noted referrals to various specialist for opinions and treatment of the right knee.
[6] ARD, pp 39–42.
Relevantly, Dr Selby Brown observed that Mr Arquero walked with a mild to moderate limp, and also limped while tiptoeing, walking on his heels and trotting on the spot. Dr Selby Brown noted significant post-traumatic degenerative changes in the right knee, which he expected to progress over time.
Dr Ross Mills, occupational physician, also provided a medicolegal opinion in a report dated 5 August 2003.[7] Dr Mills recorded worsening right knee symptoms, and a variable right antalgic gait. He assessed the permanent loss of efficient use of Mr Arquero’s right leg at or above the knee to be 30% as a result of the injury.
[7] ARD, pp 43–49.
The MAC dated 12 October 2011[8] and the further (reconsidered) MAC dated 16 December 2011,[9] issued by Dr Thomas Rosenthal AMS were also in evidence.
[8] ARD, pp 9–15.
[9] ARD, pp 16–19.
Dr Rosenthal recorded Mr Arquero’s symptoms included right knee pain five days out of seven, difficulties with ladders, stairs, squatting, standing, walking for more than one kilometre and an occasional limp. Dr Rosenthal noted on examination that Mr Arquero walked with a slightly antalgic gait.
Dr Rosenthal assessed 40% loss of efficient use of the right leg below the knee. Following a further referral to the same AMS, a second MAC was issued on 16 December 2011 in which Dr Rosenthal assessed 40% loss of efficient use of the right leg at or above the knee (including below the knee).
Mr Arquero relied on a number of medical reports from Professor Kohan, all directed to Mr Arquero’s general practitioners following consultations with Mr Arquero.
The first report was dated 29 November 2004.[10] Professor Kohan recorded a history of deteriorating symptoms in the right knee, despite the previous surgery and conservative treatment. Professor Kohan observed that, given Mr Arquero was at that time only 34 years of age, a knee replacement was not an option and recommended a proximal tibial osteotomy.
[10] ARD, pp 67–69.
The subsequent reports confirm that Mr Arquero attended a further consultation to discuss the proposed surgery, the surgery was performed, and by 17 August 2005 was enjoying excellent progress. By that stage, Mr Arquero had returned to normal activities but refrained from running and jumping and continued to experience minimal symptoms.[11]
[11] Reports dated 27 January 2005, 7 February 2005, 16 March 2005, 13 April 2005, 25 May 2005, 17 August 2005; ARD, pp 70–79.
In his report dated 13 March 2006,[12] Professor Kohan reported that Mr Arquero’s knee pain had improved significantly, but that Mr Arquero complained of a new pain radiating down the right tibia to the ankle. Professor Kohan felt that the pain may have been caused by irritation of the saphenous nerve over the internal fixation implants. Professor Kohan arranged for Mr Arquero to undergo surgery to remove the implant and screws, which was performed on 1 April 2006.[13]
[12] ARD, pp 80–81.
[13] ARD, p 82.
Mr Arquero re-presented to Professor Kohan on 12 December 2016.[14] Professor Kohan reported to the referring general practitioner, Dr Patel, that following a good recovery from surgery in 2005, Mr Arquero developed significant right knee pain three weeks before the consultation. Professor Kohan advised that x-rays taken on the day of consultation revealed significant advanced arthritic and degenerative changes in the right knee. There was a varus alignment and Mr Arquero walked with a mild limp.
[14] Report dated 12 December 2016; ARD, pp 88–90.
Professor Kohan diagnosed advanced osteoarthritis. The surgical treatment option was a total knee replacement, which in his view should be delayed for as long as possible.
The consultation notes made by various doctors from Wollongong Medical Centre were also in evidence.[15] The notes consisted of one entry on 19 June 2005, which was silent as to the reason for the consultation and a number of entries from 31 May 2010 to 26 May 2017. Of those entries, the doctors recorded Mr Arquero complaining of right knee pain on 31 May 2010, 11 and 25 September 2012 and 16 December 2016. The remaining entries either relate to other complaints, or are silent as to the reason for Mr Arquero’s attendance. It is likely that Mr Arquero attended in relation to his right knee on 20 November 2016, as the entry speaks of a referral, and the following entry on 16 December 2016 post-dated Mr Arquero’s attendance on Professor Kohan.
[15] ARD, pp 91–96.
There was no reference at all in the clinical notes to left knee symptoms.
Mr Arquero also relied on the medicolegal opinion of Dr William G D Patrick, general and vascular surgeon.
In his report dated 17 October 2017,[16] Dr Patrick took a history which was essentially consistent with the evidence discussed above and concluded that there appeared to have been a deterioration in the right knee since the MACs were issued in 2011, and Mr Arquero was complaining of considerable pain.
[16] ARD, pp 20–25.
Dr Patrick also noted that Mr Arquero was experiencing early symptoms in the left knee, possibly commencing in about late 2014 or early 2015. Dr Patrick recorded that Mr Arquero had been putting a lot of weight and strain on his left leg.
Dr Patrick assessed Mr Arquero’s permanent impairment to be 22% whole person impairment. In a short report dated 18 October 2017,[17] Dr Patrick provided an assessment expressed as 55% loss of efficient use of the right leg at or above the knee and 9% loss of efficient use of the left leg at or above the knee. He opined that the losses were entirely related to the work injury.
[17] ARD, p 35.
Dr Patrick provided a further short report dated 16 May 2018.[18] He did not re-examine Mr Arquero but was provided with a copy of Mr Arquero’s statement dated 13 May 2018. Dr Patrick expressed the view that Mr Arquero’s left knee could be assessed as “having a consequential impairment.” Dr Patrick commented that:
“[H]igh tibial osteotomy (HTO) surgery is a significant procedure which in many cases can result in undue strain being taken on the contralateral limb over a considerable period, and Mr Arquero has been experiencing some significant symptoms at the left knee, probably from about late 2014 or early 2015. On clinical examination he has developed a significant 10 degrees of recurvatum at this left knee and with some limitation in flexion. I do believe that on balance of probability his left knee problems now have been significantly contributed to as a consequence of his right knee injury of 18 December 2000, and particularly considering the effect of the HTO surgery to the right knee of February 2005.”[19]
[18] ARD, pp 37–38.
[19] ARD, p 37, [3].
Shannons relied on the report of an MRI scan of the right knee dated 9 August 2010 recording lateral compartment pain and disclosing severe degenerative joint disease, mild osteoarthritis with a region of Grade III chondromalacia within the femorotibial joint, and Grade II-III chondromalacia and a suggestion of a chondral flap at the femoral trochlea.[20]
[20] Reply to Application to Resolve a Dispute (Reply), pp 5–7.
Annexed to Shannons’ Reply were two reports, one from Professor Mark Haber, orthopaedic surgeon, dated 16 August 2010, the other from Dr George Pitsis, sports and exercise physician, dated 29 July 2013 and addressed to Dr Anthony Leung, orthopaedic surgeon.
Professor Haber confirmed the MRI of the right knee disclosed significantly advanced degenerative changes. Professor Haber opined that ultimately, Mr Arquero would require a total knee replacement, but in the meantime, a Synvisc injection may assist.[21]
[21] Reply, p 8.
Dr Pitsis confirmed that Mr Arquero had been given a Synvisc injection by Professor Haber in 2010, which provided him with 70% relief of his pain for a period of six months. Relevantly, Dr Pitsis examined Mr Arquero, and noted the right leg to be 7 mm shorter with significant over-pronation. Dr Pitsis diagnosed Grade IV medial compartment osteoarthritis with Grade II osteoarthritis in the other compartments.[22]
[22] Reply, pp 9–11.
Shannons also relied on a medicolegal report from Dr Robert Breit, orthopaedic surgeon, dated 5 September 2016.[23] Dr Breit took a history of significant right knee symptoms and difficulties. Dr Breit also noted that Mr Arquero had been experiencing left knee symptoms as well, for about a year.[24] Dr Breit described Mr Arquero as having a “a slight bent stiff knee antalgic gait.”[25] Dr Breit did not assess the left knee or provide an opinion on the cause of the left knee symptoms.
[23] Reply, pp 1–4.
[24] Reply, p 2.
[25] Reply, p 3.
The remaining evidence is not relevant to the issue the Arbitrator was required to determine.
THE ARBITRATOR’S REASONS
In her oral reasons, the Arbitrator noted that there was no dispute that the claim in respect of the right leg was to be referred to the AMS for assessment. She further noted that the issue for her to determine was limited to whether there was sufficient evidence before her to determine if Mr Arquero suffered a condition in his left knee that was consequential to the right knee injury.
The Arbitrator summarised the submissions made and the evidence relied upon by both parties in those submissions.
The Arbitrator noted that counsel for Mr Arquero referred to Mr Arquero’s statement dated 13 May 2018 in which he described the injury, and the evidence that in the incident, Mr Arquero fell a distance of approximately 1.5 metres. She further noted Mr Arquero complained of persistent and worsening symptoms, and underwent a tibial osteotomy on 7 February 2005.
The Arbitrator recorded that the surgery failed to improve his symptoms. She accepted that the evidence established that there was a difference between the length of Mr Arquero’s right and left legs, and that Dr Pitsis reported Mr Arquero’s right leg was 7mm shorter than the left leg. The Arbitrator referred to the observations of the medical practitioners that Mr Arquero walked with a limp and had an antalgic gait.
The Arbitrator quoted from Mr Arquero’s statement where he said he had walked with a limp since 2005, “favoured” his left knee because the right knee was weak and had a conversation with Professor Kohan about the left knee condition at the consultation on 10 January 2017.
The Arbitrator noted that Professor Kohan did not refer to the left knee or any left knee x-ray in his report written on the date of the consultation.
The Arbitrator further quoted from Mr Arquero’s supplementary statement dated 13 July 2018, in which Mr Arquero asserted that his right knee was always his major concern, but that the left knee became the more troublesome knee over the previous twelve months. The Arbitrator also referred to Mr Arquero’s allegation that he believed the strong medication he was taking for his right knee masked the pain he was experiencing in his left knee “for many years”. She further noted Mr Arquero’s assertion that Professor Kohan had advised him that he would have a limp permanently.
The Arbitrator referred to the submission made by Mr Arquero’s counsel that there was considerable evidence that Mr Arquero took regular analgesia, and that was a logical explanation for the late complaints of symptoms. It was submitted that the fact that the focus was always on the right knee was also an explanation.
The Arbitrator observed that the reports of Dr Patrick were the only medical evidence that dealt with Mr Arquero’s left knee condition. She recorded the references to the onset of left knee pain in late 2014 or early 2015 and Dr Patrick’s reference to Mr Arquero putting a lot of weight onto his left knee. She also noted Dr Patrick’s observations on examination of a significant 10 degrees of recurvatum and restriction on range of movement.
The Arbitrator further quoted extensively from Dr Patrick’s report dated 16 May 2018, the essence of which is recorded at [47] above. The Arbitrator expressed the view that Dr Patrick “has, in fact, not said a great deal that is new.”[26]
[26] Transcript of reasons, Arquero v Shannons Anti Corrosion Engineering Pty Ltd, 2974/18, 15 August 2018 (T1), 6.26–27.
The Arbitrator summarised submissions made by Mr Arquero’s counsel that:
(a) Dr Patrick’s opinion was logical, and applying a common-sense approach it provides a causal nexus between the right knee injury and the left knee condition;
(b) Mr Arquero was physically fit, which was a further explanation for the delay in symptoms;
(c) Dr Patrick gave a biomedical explanation for the injury and his second report provides a forensic medical opinion;
(d) Mr Arquero conceded there were no references to the left knee in the clinical notes from Wollongong Medical Centre, but the references to right knee were sparse, and
(e) Dr Selby Brown in 2003 provides a history that the right knee gave way about once per week, and that it made sense that the significant issue in the right knee abated, then worsened in about 2014 causing onset of left knee symptoms. Taking all the evidence together, the Arbitrator should accept that the left knee condition resulted from the injury to the right knee.
The Arbitrator reviewed the submissions made by counsel for Shannons. She recorded that Shannons asserted Mr Arquero could not succeed because the medical evidence did not ever articulate what was the condition in the left knee.
The Arbitrator accepted that submission. She observed that “Dr Patrick describes signs but does not provide a diagnosis or explain the cause of the left knee condition.”[27]
[27] T1, 7.20–22.
The Arbitrator referred to the submission that there was no contemporaneous evidence and said that the clinical notes were important in cases of this nature. In particular there was no evidence from a general practitioner, a specialist, a radiologist or a physiotherapist.
The Arbitrator noted the reference to the Presidential decision of RSL (QLD) War Veterans’ Homes Ltd v Watkins,[28] but observed that case to be concerned with an injury pursuant to s 4 of the 1987 Act, rather than a consequential condition.
[28] [2013] NSWWCCPD 44.
The Arbitrator further noted that Shannons relied on the decision of Moriarty-Baes v Office Works Superstores Pty Ltd.[29] She quoted the following observations made by Deputy President Roche of the evidence in that case:
“The Arbitrator noted Ms Moriarty-Baes’ evidence in the matter was ‘brief in the extreme’ (T8.3). He added that there was ‘meagre evidence’ (T8.24) about the nature of Ms Moriarty-Baes’ work duties and about the activities she performed at home. These observations were based on the fact that Ms Moriarty-Baes’ statement of 11 December 2014 said nothing relevant about the nature of her duties. The only reference in it to use of the right shoulder was to the four day period after the first operation when she used a touch screen and had a sore shoulder by the end of the fourth day.
To ascertain Ms Moriarty-Baes’ pre-injury duties, the Arbitrator was forced to rely on the history recorded by Dr Ho. That was unsatisfactory, but highlighted the unsatisfactory state of the lay evidence presented in support of the claim. With respect to the alleged overuse of the right shoulder because of the left wrist injury, Ms Moriarty-Baes’ statement was effectively silent.”[30]
[29] [2015] NSWWCCPD 28 (Moriarty-Baes).
[30] Moriarty-Baes, [93]–[94].
The Arbitrator quoted the following further passage from that decision:
“In assessing and weighing the evidence, the Arbitrator was entitled to note the lack of clear evidence from Ms Moriarty-Baes on the very issue in dispute, namely, whether, because of the injury to the left wrist, she had in fact overused her right shoulder in such a way as to cause the condition now said to be present in it. The Arbitrator’s statement accurately reflected the unsatisfactory state of the lay evidence and disclosed no error. This ground of appeal is without substance and is rejected.”[31]
[31] Moriarty-Baes, [100].
The Arbitrator noted that the reference to the lack of evidence in Moriarty-Baes was a reference to the lack of lay evidence, rather than medical evidence, but said the case provided “useful guidance about the kind of evidence that is necessary to find that a consequential condition had been suffered.”[32]
[32] T1, 9.14–17.
The Arbitrator expressed the view that it was always difficult when the first reference to such a condition was in a medicolegal report. She said the first reference to the left knee condition was in the report of Dr Patrick, which pre-dated Mr Arquero’s first statement.
The Arbitrator agreed that the clinical notes were unusually brief and contained no reference to the left knee.
The Arbitrator summarised Mr Arquero’s case. That is, Mr Arquero undoubtedly walked with a limp, took significant analgesia and his physical fitness put off the development of the left knee condition. She stated that none of those matters were adequately explained by Dr Patrick, and she could not apply logic to fill in the gaps in the medical evidence. The medical evidence must show the relevant connection. Additionally, she said there was no diagnosis from Dr Patrick, and there was nothing from Mr Arquero’s general practitioner.
The Arbitrator concluded that she could not accept the evidence from Mr Arquero that Professor Kohan had discussed with him his left knee problem, and observed that it would have been a simple matter to obtain that evidence from Professor Kohan directly. The Arbitrator further concluded that Dr Patrick’s explanation about the condition was a conclusion, rather than an explanation as to what occurred.
The Arbitrator reasoned that the common sense causal chain of connection must be explained by the medical evidence. The Arbitrator referred to the Court of Appeal decision in Strinic v Singh[33] and said that while the Commission is entitled to exercise its specialist medical knowledge in determining a matter, the conclusion she was being asked to reach required support from the medical evidence that explains the causal nexus.
[33] [2009] NSWCA 15; 74 NSWLR 419; 52 MVR 103 (Strinic).
The Arbitrator found that for the above reasons, she was not satisfied that Mr Arquero had discharged the onus of proving the left knee condition resulted from the injury to the right knee.
The Certificate of Determination issued on 16 August 2018 records:
“1. The applicant has not discharged his onus to satisfy the Commission that he suffers a consequential condition in his left leg as a result of injury to his right leg.
2. I remit the matter to the Registrar for referral to an Approved Medical Specialist to assess the applicant’s permanent loss of efficient use of his right leg at or above the knee as a result of injury on 18 December 2000.
3. All of the material in the Commission’s file should be sent to the AMS.”
GROUNDS OF APPEAL
Mr Arquero alleges four grounds of appeal, alleging error of fact and law in:
(a) Ground one: failing to take into account, or give sufficient weight to, the appellant’s evidence and provide adequate reasons as to findings;
(b) Ground two: primarily determining the issue on the basis of an absence of contemporaneous complaint of injury to the left leg;
(c) Ground three: misdirecting herself in respect of her statutory task by inappropriately relying on the decision of Moriarty-Baes, and
(d) Ground four: rejecting and/or not properly considering the opinion of Dr Patrick in relation to the question of causation and diagnosis of the injury to the left leg.
LEGISLATION
Section 294 of the 1998 Act relevantly provides:
“294 Certificate of Commission's determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination.
(3) …”
Rule 15.6 of Workers Compensation Commission Rules 2011 (the 2011 Rules) sets out the requirements in respect of the Arbitrator’s reasons as follows:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
SUBMISSSIONS
Ground one: failing to take into account, or give sufficient weight to, the appellant’s evidence and provide adequate reasons as to findings
Mr Arquero submits that there was no issue between the parties that he suffered “injury to both his knees.”[34] He adds that the only issues were the extent of the permanent loss and whether the left leg condition was work-related.
[34] Mr Arquero’s submissions, [9].
Relying on r 15.6 of the Workers Compensation Commission Rules 2011 (but referred to as the 2006 Rules), Mr Arquero submits that the Arbitrator’s reasons are inadequate, as she failed to state whether she accepted or rejected Mr Arquero’s evidence, and failed to give reasons as to why she rejected the supportive evidence of Dr Patrick.
Mr Arquero cites the Court of Appeal decision in Chanaa v Zarour[35] and purports to quote from the judgment of Campbell JA at [86]. The extract included in Mr Arquero’s submissions is not a quote from that decision, but is a summary of the principles enunciated. Mr Arquero submits that the principles are:
(a) it is not the law that a worker must have corroboration before he or she can succeed;
(b) in the civil law, corroboration is not a technical term or a legal requirement, and
(c) the task of the judge is to decide, on the basis of the whole of the evidence (denials and all), what he or she accepts.
[35] [2011] NSWCA 199.
Mr Arquero submits that the Arbitrator’s task is to assess his evidence as well as the other evidence, to determine its reliability. The Arbitrator is required, he says, to consider the explanation for the absence of evidence, in this case the lack of complaints to medical practitioners and the strong analgesia he took, as well as the altered gait and unequal leg lengths.
Mr Arquero notes that the Arbitrator acknowledged that the clinical notes were unusually brief. He submits that the lack of attendances for the serious right knee injury indicates that Mr Arquero was a stoic person of little complaint, which validly explains the absence of complaint in the left knee. Further, the medical evidence supports that Mr Arquero was ingesting strong pain medication.
Mr Arquero says that the Arbitrator did not properly consider or give sufficient weight to those explanations for the lack of complaint to medical practitioners.
Mr Arquero concedes that the lack of contemporaneous record is relevant but says it is not determinative, relying on the Supreme Court decision in Bugat v Fox.[36] He submits that the absence of contemporaneous records is explained, and that causation of injury cannot be determined on the basis of absence of corroborative contemporaneous records alone. He says that the evidence has to be considered as a whole, including his statement and the medical reports adduced in evidence. Mr Arquero further submits that caution must be exercised in determining inconsistent evidence by relying on extracts from clinical notes.[37]
[36] [2014] NSWSC 888, [31].
[37] Mason v Demasi [2009] NSWCA 227.
Mr Arquero asserts that the Arbitrator failed to give adequate reasons as to why she rejected his evidence. He contends that, although the Arbitrator referred to Mr Arquero’s evidence, she did not analyse the evidence, or give any reasons for rejecting it, relying on Palise v Australian and New Zealand Banking Group Limited.[38] Mr Arquero submits that the Arbitrator’s failure to deal with his evidence in a “satisfactory way” was an error in the fact-finding process and her decision cannot stand.
[38] [2018] NSWWCCPD 13 (Palise).
Mr Arquero says that there were no contemporaneous records in respect of the left knee because he did not seek treatment for it, so that an attempt to obtain medical evidence from treatment providers would have been futile. Mr Arquero complains that the Arbitrator suggested that a report should have been obtained from Professor Kohan, but that Professor Kohan had not examined him in respect of his left knee, so that he could not be considered a treating doctor who could have provided an opinion.
Mr Arquero says that there were no contemporaneous records in respect of the left knee because he did not seek treatment for it, so that an attempt to obtain medical evidence from treatment providers would have been futile. Mr Arquero complains that the Arbitrator suggested that a report should have been obtained from Professor Kohan, but that Professor Kohan had not examined him in respect of his left knee, so that he could not be considered a treating doctor who could have provided an opinion.
Mr Arquero contends that it is sufficient for an opinion on causation to be provided by a medicolegal expert, and points out that there was no contrary evidence to challenge that of Dr Patrick. He further submits that even if the Arbitrator was required to determine the nature of the injury, Dr Patrick diagnosed “recurvatum”, and his opinion was not challenged. Again, the clinical records would not be determinative. In any event, Dr Patrick provided a forensic explanation as to the causal relationship between the condition in the left knee and the original injury.
In conclusion, Mr Arquero submits that the Arbitrator failed to consider that diagnosis and its cause. He submits that the Arbitrator formed the view that Dr Patrick did not provide a diagnosis, which is incorrect and that error is, in itself, sufficient to set aside the decision.
Shannons refers to the Arbitrator’s observations and her reasons that:
(a) it “is always difficult” when the first reference to the condition is in a medicolegal report obtained for the purposes of assessing a claim pursuant to s 66;
(b) Mr Arquero’s first statement was not prepared until after that report and just prior to Dr Patrick’s second report;
(c) the general practitioner’s notes were very brief and contained no reference to the left knee;
(d) Dr Patrick did not provide a diagnosis;
(e) Mr Arquero was asking her to “fill the gaps” in the medical evidence;
(f) it should have been simple for Mr Arquero to obtain a report from Professor Kohan as to the conversation in relation to Arquero’s left leg;
(g) the conclusions she was asked to draw required medical opinion to explain the causal nexus, and
(h) it was factually unsustainable that it was impossible for Mr Arquero to obtain medical evidence when there had been no treatment for the left knee.
Shannons submits that Mr Arquero gave evidence that he had an x-ray of his left knee and discussions about his left knee with Professor Kohan (referred to as his GP), neither of which was reported on by Professor Kohan. Shannons submits that the Arbitrator “dealt with” the concern raised by Mr Arquero.
Ground two: primarily determining the issue on the basis of an absence of contemporaneous complaint of injury to the left leg
Citing Hancock v East Coast Timber Products Pty Ltd,[39] Mr Arquero submits that expert evidence must set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the Appellant, and information from x-rays and other tests.”
[39] [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43, [85] per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing).
Mr Arquero says that the Arbitrator found that Dr Patrick did not provide a diagnosis, his report did not explain the causal connection between the left leg condition and altered gait (due to the right leg shortening), the intake of significant analgesia, and extent of Mr Arquero’s fitness.
Mr Arquero contends that Dr Patrick did provide an explanation, relying on the history provided by Mr Arquero and on the basis of his own clinical experience, skill and knowledge. Mr Arquero quotes from Dr Patrick’s opinion recorded at [47] above.
Mr Arquero asserts that recurvatum is a deformity causing the knee to bend backwards, and that lower leg discrepancy is a common cause of the condition. Further, the Arbitrator acknowledged that his leg lengths were different.
Mr Arquero submits that the diagnosis of recurvatum was not challenged by any other practitioner. Additionally, Mr Arquero contends that altered gait is a well-known cause of recurvatum and Dr Patrick’s opinion that the condition resulted from the right knee injury was logical.
Mr Arquero submits that Dr Patrick’s medical opinion was sufficient to explain the causal nexus between the injury and the significant surgery to the right knee, the altered gait and the consequential condition in the left knee, particularly when read together with Mr Arquero’s own evidence.
Mr Arquero maintains that Shannons did not provide medical evidence to contradict Dr Patrick’s opinion.
Shannons submits that the Arbitrator’s main concern was that Dr Patrick’s evidence was the first (and only) medical reference to Mr Arquero’s left knee complaints.
Shannons refers to the Arbitrator’s observation that the leg length discrepancy was recorded in a CT scan taken before the tibial osteotomy was performed. Further, Shannons submits that despite Mr Arquero’s assertions that he mentioned his left knee symptoms to Professor Kohan and underwent an x-ray of the left knee, Professor Kohan’s reports were silent as to any left knee complaints or investigations.
Shannons submits that on the balance of the medical evidence, it was entirely appropriate for the Arbitrator to find there was no causal nexus between the right knee injury and the left knee condition.
Ground three: misdirecting herself in respect of her statutory task by inappropriately relying on the decision of Moriarty-Baes
Mr Arquero alleges the Arbitrator misdirected herself and was lead into error by applying Moriarty-Baes because that case can be distinguished because it involved a secondary injury to the upper limbs. He submits that in determining causation of a secondary injury to the upper limbs, “specific evidence is required regarding the activities of the applicant and the use of the upper limbs to demonstrate overuse and possible favouring of the injured body part.” Mr Arquero says that in his case, altered gait while walking has always been put forward as the cause of his left knee condition, has been clearly referred to in the report of Dr Patrick, and that causation of the condition from that activity was generally self-evident.
Mr Arquero submits that the proposition is common sense and what is required is a determination of a common sense causal connection.
In relation to the Arbitrator’s reasoning that the explanation given by Dr Patrick was a conclusion, rather than an explanation of the connection, Mr Arquero submits that Dr Patrick discussed the effects of the significant surgery (including the left leg shortening). Mr Arquero maintains that Dr Patrick has provided the necessary explanation as to “injury” to the left knee.
Shannons submits that the Arbitrator’s reference to and reliance on Moriarty-Baes was entirely appropriate. It says that the Arbitrator did not over-state the relevance of the decision, but instead said that the case provides useful guidance about the kind of evidence that is necessary to find a consequential condition.
Ground four: rejecting and/or not properly considering the opinion of Dr Patrick in relation to the question of causation and diagnosis of the injury to the left leg
Mr Arquero referred to the Arbitrator’s finding that because the medical evidence has not articulated a diagnosis, his case cannot succeed.
Mr Arquero submits that the Arbitrator has erred, as Dr Patrick properly considered the diagnosis provided. Mr Arquero submits that even if there had been no diagnosis, or the diagnosis was not valid, the Arbitrator was still required to determine the consequential condition.
Mr Arquero relies on Keating P’s decision in Palise, and extracts the following passage from that decision:
“The evidence does not permit me to identify with any precision the diagnosis of the injury. In any event it is not necessary for me ‘to put a label’ on the injury. The diagnosis of the neck injury and any permanent whole person impairment flowing from it will be a matter for an AMS to determine.”[40]
[40] Palise, [118].
Mr Arquero submits that the lack of a diagnosis does not mean that there was no “injury” and in accordance with Palise, the diagnosis and assessment is a matter for the AMS.
Shannons submits that the Arbitrator’s finding that Mr Arquero had not discharged the onus of proof was akin to an award in its favour with respect to the claim for a consequential left knee condition.
Shannons contends that Mr Arquero’s submission that the Arbitrator was still required to determine the consequential condition is misconceived.
The relief sought
Mr Arquero seeks to have the Arbitrator’s COD revoked, and the assessment of the permanent loss of efficient use of the left leg at or above the knee be referred to an AMS for assessment.
Shannons seeks to have the Arbitrator’s decision confirmed. In the alternative, if any of the grounds of appeal succeed and the decision is revoked, it seeks that a “similar” decision be made in its place, on the basis that any such error would not alter the outcome.
DISCUSSION
Mr Arquero’s principle argument on appeal is that the Arbitrator was in error in rejecting Dr Patrick’s opinion. It is convenient to deal with that part of the appeal first. The issue transverses both the first and fourth grounds of appeal, and the relevant submissions of the parties on both grounds are noted.
It is helpful to reproduce a summary of the medical evidence.
In 2003, Doctor Selby Brown examined Mr Arquero and observed that Mr Arquero walked with a limp and limped while tiptoeing, walking and trotting on his heels. Dr Mills also provided a report in the same year, in which he observed that Mr Arquero was experiencing worsening right knee symptoms and a variable antalgic gait.
Dr Rosenthal, AMS, assessed Mr Arquero in 2011. He also noted on examination that Mr Arquero walked with a slightly antalgic gait.
Mr Arquero was referred to Professor Haber in 2010, who reported that an MRI scan organised by him disclosed significant and advanced degenerative changes, provided a Synvisc injection, but indicated that ultimately Mr Arquero would need a knee replacement.
In 2013, Dr Pitsis examined the right leg and found it to be 7mm shorter with significant over-pronation. He diagnosed significantly advanced degeneration.
Professor Kohan, who had been Mr Arquero’s treating specialist since 2004 and who had performed the tibial osteotomy in 2005, recorded a significant increase in right knee pain in 2016.
Dr Breit, who provided an opinion on behalf of Shannons, examined Mr Arquero on 5 September 2016. On examination, Dr Breit observed that Mr Arquero had a “slight bent stiff knee antalgic gait” with calf wasting. Dr Breit recorded that Mr Arquero had been experiencing left knee symptoms for approximately 12 months.
In his statement evidence, Mr Arquero complained of having walked with a limp ever since his operation in 2005. He stated that over the years following the surgery in 2005, his right knee condition worsened. He said that in about late 2014 or early 2015, he began to experience left knee symptoms.
The medical evidence recorded above corroborates that:
(a) he walked with a limp (first recorded by Dr Selby Brown in 2003);
(b) he continued to limp over the years;
(c) he was observed to have an antalgic gait;
(d) he was observed in 2013 and afterwards to have an over-pronation (or stiff bent right knee), and
(e) his right knee symptoms were worsening significantly over the period of time between 2003 and the onset of left knee symptoms.
Doctor Patrick’s reports have been summarised at [44]–[47] above. In essence, his evidence is that:
(a) based on the history provided, there had been a deterioration of, and an increase in pain in, Mr Arquero’s right knee since the MACs were issued in 2011;
(b) in the context of Mr Arquero putting increased weight and strain on his left knee, Mr Arquero began experiencing early symptoms in his left knee from about late 2014 to early 2015;
(c) surgery in the nature of a high tibial osteotomy is a significant procedure that in many cases places undue strain on the contralateral limb over an extended period of time;
(d) Mr Arquero had developed malalignment and limitation in flexion in the right knee;
(e) Mr Arquero suffered from a 9% permanent loss of efficient use of his left leg at or above the knee which was entirely work-related, and
(f) it was his opinion that on the balance of probabilities, Mr Arquero’s right knee injury significantly contributed to the left knee condition, particularly taking into account the high tibial osteotomy performed in 2005.
The Arbitrator approached the consideration of Dr Patrick’s evidence by expressing the opinion that it was always difficult when the first reference to the condition was in a medicolegal report. It may be said that in some cases, that fact may pose a difficulty. However, it is not always the case. In this case, the factual basis upon which the consequential condition relies, that is the high tibial osteotomy, altered gait, limping and over-pronation, and a deteriorating condition in the right knee, is well made out in the historical reports.
Additionally, Dr Patrick was not the first doctor to record the onset of left knee symptoms. The onset of left knee symptoms was recorded by Dr Breit in September 2016, and the history provided was that the symptoms had been present for approximately 12 months. That history largely accords with Mr Arquero’s evidence.
The Arbitrator took into consideration that Dr Patrick had not provided a diagnosis.
The lack of a diagnosis was a matter raised by Shannons in its submissions at arbitration, and Mr Arquero responded with submissions in reply.
It is not clear why the parties pursued a path to identify a diagnosis, or why ultimately the Arbitrator thought that the lack of a diagnosis was a factor that detracted from the adequacy of Dr Patrick’s explanation for his opinion.
The distinction between a finding of injury pursuant to s 4 of the 1987 Act and a condition consequent upon an injury is clear.[41]
[41] Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4; 14 DDCR 223 (Bouchmouni), [73]–[74].
In Kumar v Royal Comfort Bedding Pty Ltd,[42] Deputy President Roche, in applying the principles enunciated in Kooragang Cement Pty Ltd v Bates,[43] made the following observations:
“Of more significance is that Dr Wallace’s opinion that Mr Kumar’s activities after the back surgery would not be consistent with the cause of ‘significant right shoulder pathology’ failed to address the correct issue. It is not necessary for Mr Kumarto establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”[44]
[42] [2012] NSWWCCPD 8 (Kumar).
[43] (1994) 35 NSWLR 452 (Kooragang).
[44] Kumar, [55].
Deputy President Roche concluded that:
“While Mr Kumar’s evidence is less than ideal and the general preparation of his case by his solicitors has been sloppy, his evidence of experiencing a lot of pain in his right shoulder having to lift himself after his back surgery is unchallenged and not implausible. His symptoms were sufficient for him to seek medical treatment. Dr Di Mascio and Dr Ireland were satisfied that an aggravation had occurred in the manner alleged by Mr Kumar. In these circumstances, and given that Dr Wallace did not address the proper question, the compelling conclusion is that Mr Kumar’s right shoulder symptoms in June 2010 resulted from his accepted back injury.”[45]
[45] Kumar, [59].
Deputy President Roche revoked the Arbitrator’s decision and in place substituted an order that the matter be remitted to an AMS to provide an opinion as to whether surgery was reasonable necessary. The order included a determination that “the symptoms in the applicant’s right shoulder have resulted from the injury to his back on 19 March 2009”[46] (emphasis added).
[46] Kumar, [62].
In Bouchmouni, Roche DP reasoned that there was strong evidence to support the conclusion that there was an unbroken causal connection between Mr Bouchmouni’s back condition and his knee injury.[47] He ordered that the claim be remitted to the Registrar for referral to an AMS for assessment of the whole person impairment of “the condition in the lumbar spine, which condition has resulted from the injury to his right knee”[48] (emphasis added).
[47] Bouchmouni, [87].
[48] Bouchmouni, [90].
Deputy President Snell reviewed the above authorities in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan.[49] He made the following observations:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.”[50]
[49] [2016] NSWWCCPD 23 (Brennan).
[50] Brennan, [169].
In the present case, the provision of a diagnosis of Mr Arquero’s left knee condition was not necessary and any failure on the part of Dr Patrick to find a diagnosis is not a basis upon which to reject Dr Patrick’s evidence or Mr Arquero’s claim.
The Arbitrator also formed the view that Dr Patrick failed to “explain what has occurred”.
Dr Patrick’s evidence is summarised at [44]–[47] above. Taking the whole of the evidence into account, it is clear that Dr Patrick provided a sufficiently rational explanation for the onset of left knee symptoms. That is, the symptoms and condition in Mr Arquero’s right knee had worsened since 2011 with reduced flexion and malalignment, Mr Arquero was placing greater weight on the left knee, and the surgery undertaken in 2005 was known to cause undue strain on the contralateral limb over an extended period of time. Based on those factors, and particularly as a result of the 2005 surgery, his opinion was that the left knee condition resulted from the right knee injury.
The factual basis upon which his opinion rested was uncontroversial. Further, there was no evidence to contradict that of Dr Patrick. As a general proposition, a decision maker is not obliged to accept evidence on the basis that there is no evidence to the contrary.[51] However, the evidence was consistent with the historical medical evidence and Mr Arquero’s statement evidence. It was not inherently incredible,[52] and provided a logical basis on which the necessary causal connection could be established.
[51] SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129.
[52] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.
The Arbitrator’s conclusion in respect of Dr Patrick’s evidence was arrived at by taking into account an irrelevant consideration (no diagnosis) and by failing to take into account material evidence.
On the above basis, the rejection of Dr Patrick’s evidence constitutes an error, and that error has materially affected the outcome. Grounds one and four of Mr Arquero’s appeal succeed. It is not necessary to determine the remaining grounds of appeal. It follows that as the Arbitrator’s reasons disclose error, the decision is set aside.
Where an Arbitrator’s findings are revoked, it is generally desirable that the Presidential member hearing the appeal re-determine all issues.[53] In the interests of a timely resolution, it is appropriate for me to re-determine the matter.
[53] Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1.
CONSIDERATION
Much of the case presented at arbitration consisted of submissions made for and against the lack of “contemporaneous” evidence of complaints in the left knee and whether there was a diagnosis provided by a medical expert of Mr Arquero’s left knee condition.
It was never explained what was meant by “contemporaneous” in circumstances where, in this case, Mr Arquero’s injury occurred in 2000 but his symptoms arising in his left knee were not alleged to have arisen until at least 14 years after that injury (late 2014 or early 2015).
The attempt by Mr Arquero to provide an explanation for the symptoms having what might be described as a “late onset”, indicates that it may have been in the minds of the parties and perhaps the Arbitrator that the delay in onset mitigated against a causal connection.
As was observed by Kirby P in Kooragang,[54] “the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation”.
[54] Kooragang, 464B.
That passage was considered by Basten JA in State of New South Wales v Bishop.[55] His Honour observed:
“In the present case, the question of causation was purely a question of fact for the arbitrator. How other courts have dealt with such questions on their own facts will not provide precedents, because they are not statements of legal principle. The statement from Kooragang that ‘the mere passage of time … is not determinative’ is not a legal principle, nor does it give helpful guidance in the present case. The mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant.”
[55] [2014] NSWCA 354 (Bishop), [20].
The delay between the injury and the onset of symptoms is a relevant consideration in some cases of this nature, but in the circumstances of this case, where Mr Arquero was experiencing significant and increasing right knee symptoms, the delay in the onset of left knee symptoms is less determinative. The purported delay is also explained by Dr Patrick’s opinion that surgery in the nature of high tibial osteotomy “in many cases can result in undue strain being taken on the contralateral limb over a considerable period of time.” (emphasis added)
The absence of reference to complaints of symptoms in the left knee in the Wollongong Medical Centre’s clinical notes is not surprising. Putting aside the sparsity of the entries, lack of detail in the notes and the fact that Mr Arquero was on pain medication in any event for his right knee, Mr Arquero said in his statement that he had not yet sought medical treatment for the left knee.
While it would have been helpful for Professor Kohan to have provided a report confirming the conversation alleged to have taken place between him and Mr Arquero in respect of the left knee, and an opinion on causation, in this case, the lack of that evidence is not fatal. Mr Arquero consulted Professor Kohan in December 2016, after he had attended an examination by Dr Breit. In his report dated 5 September 2016, Dr Breit recorded complaints of an onset of left knee symptoms approximately 12 months earlier.
In any event the dispute between the parties was limited to whether the left knee condition was “work-related”. There was no challenge to the fact that Mr Arquero was experiencing left knee symptoms and those symptoms arose in either late 2014 or 2015. In such circumstances, nothing turns on the absence of corroborative evidence going to the presence of left knee symptoms.
The only further medical evidence that would have assisted Mr Arquero’s case would have been an opinion on causation from a treating doctor. In the circumstances of this case, however, the factual basis upon which Dr Patrick’s opinion was reached was clearly established by the historical evidence and Mr Arquero’s own statement.
At arbitration, Shannons submitted that Mr Arquero’s evidence fell short of providing details of what he was doing that placed greater strain on the left knee.[56] The submission ignores the evidence in Mr Arquero’s first statement that he had difficulty doing housework, walking long distances, using stairs and took longer to do the gardening. It is a common sense proposition that a person who is not immobilised, and attempts to carry out everyday activities despite his right knee difficulties, would be walking and otherwise using his lower limbs as a matter of course.
[56] Transcript of Proceedings, Arquero v Shannons Anti Corrosion Engineering Pty Ltd, 2974/18, 13 August 2018 (T2), 15.15–16.4.
Also during the arbitration, Shannons referred to and relied upon the decision in Moriarty-Baes, and submitted that particular paragraphs of that decision establish what evidence is required to satisfy the causal connection.[57] In Moriarty-Baes, the worker suffered a left wrist injury, then subsequently complained of right shoulder symptoms. She alleged the right shoulder was a further injury, or in the alternative a condition consequent upon the left wrist injury. In relation to the alleged overuse of the right shoulder because of the left wrist injury, Ms Moriarty-Baes’ statement was effectively silent. The Arbitrator found that the absence of any evidence as to what the worker was doing was fatal to her case, and that finding was confirmed on appeal.
[57] T2, 14.11–15.6.
The decision has no application to Mr Arquero’s case. The facts and evidence bear no similarity to Mr Arquero’s claim. As the Court of Appeal observed in Kooragang and in Bishop, each case turns on its own facts.
Mr Arquero alleges that his left knee symptoms arose as a result of his right knee injury. In his statement, he provided the factual basis upon which his claim rests. For the reasons discussed above, the historical medical evidence provides proof of the facts relied upon and Dr Patrick provides a logical explanation for the development of left knee symptoms as a result of the right knee injury. The assumed facts upon which he relies are established. The assumed facts provide a “fair climate” for acceptance of his opinion.[58] There is no evidence to contradict Mr Arquero’s evidence.
[58] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844; Brady v Commissioner of Police (2003) 25 NSWCCR 58, 76.
I am satisfied that Mr Arquero’s left knee symptoms arose as a consequence of his right knee injury and I find accordingly.
DECISION
The Certificate of Determination dated 16 August 2018 is revoked.
Mr Arquero’s left knee condition is a consequential condition resulting from the right knee injury on 18 December 2000.
I remit the matter to the Registrar for referral to an Approved Medical Specialist for assessment of the permanent loss of efficient use of:
(a) the right leg at and above the knee (including below the knee) as a result of injury on 18 December 2000, and
(b) the left leg at and above the knee (including below the knee) as a result of the consequential condition that results from the injury to right knee on 18 December 2000.
Elizabeth Wood
Deputy President
29 January 2019
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