Australian Traineeship System v Turner - [2012] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Australian Traineeship System v Turner [2012] NSWWCCPD 4
APPELLANT:		Australian Traineeship System
RESPONDENT:		Brian Turner
INSURER:		Allianz Australia Insurance Ltd
FILE NUMBER:		A1-8307/10
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		22 September 2011
DATE OF APPEAL HEARING:		30 January 2012
DATE OF APPEAL DECISION:		31 January 2012
SUBJECT MATTER OF DECISION:		Compensation for consequential loss; relevance of subsequent employment; application of principles in Cluff v Dorahy Bros (Wholesale) Pty Ltd [1972] 2 NSWLR 435; alleged absence of evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr M Batten, instructed by TurksLegal
Respondent:	Mr R Stanton, instructed by Law Partners
ORDERS MADE ON APPEAL:		Paragraph 1 of the Arbitrator’s determination of 22 September 2011 is revoked and the following order made in its place: “1. The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of injury to the right upper extremity (shoulder) on 8 April 2002 and as a result of the condition of his left upper extremity (shoulder), which condition has resulted from the injury to the right shoulder.” Paragraph 2 of the Arbitrator’s determination is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Brian Turner started work as a cleaner with the appellant employer, Australian Traineeship System, in 2001. On 8 April 2002, he injured his right shoulder in the course of his employment. Liability was accepted and voluntary compensation payments made. On 5 July 2004, he settled a claim for lump sum compensation in the sum of $7,500 in respect of a six per cent whole person impairment because of the condition of his right shoulder.
In September 2004, Mr Turner started work as a doorman at Blacktown Workers Club (the Club), where he worked 35–38 hours per week until an unidentified date in 2005. In his statements filed with the Commission in support of his claim, Mr Turner did not deal with his work at the Club.
In 2005, he developed pain and restrictions in his left shoulder because he had been favouring his injured right shoulder. Mr Turner’s right shoulder continued to trouble him and he had surgery on it on 8 February 2006, 4 April 2007 and 25 July 2007.
On 17 June 2010, Mr Turner claimed lump sum compensation in respect of a 17 per cent whole person impairment because of a deterioration in his right shoulder and because of symptoms and restrictions in his left shoulder as a result of overuse of that shoulder consequent upon the right shoulder injury.
The appellant disputed liability. In respect of the right shoulder, it argued that there had been no further impairment. In respect of the left shoulder, it disputed injury, substantial contributing factor and notice of injury and notice of claim under s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
At the arbitration on 11 February 2011, Mr Stanton, of counsel, appeared for Mr Turner, and Mr Batten, of counsel, appeared for the appellant. The arbitration commenced with submissions from Mr Batten and submissions in response by Mr Stanton. The Arbitrator reserved her decision.
On 6 June 2011, the Arbitrator issued a Direction setting out background information about the claim, including a summary of relevant medical evidence. This document was in the nature of a draft decision, though it contains no formal findings or orders. The Direction drew attention to the worker’s brief and inadequate statement and the limited evidence about Mr Turner’s employment at the Club. In particular, the Arbitrator noted that there was no information about Mr Turner’s duties as a doorman.
The Direction added that there was “compelling evidence to find that the injury to the left shoulder was a disease of gradual onset in which event s 15 and s 16 of the Workers Compensation Act 1987 (the 1987 Act) would have to be considered”. However, the pleadings made no mention of those sections and neither counsel made submissions on them. In addition, there was no evidence of whether or not the work at the Club was employment to the nature of which a disease was due.
The Arbitrator said (in the Direction) that there was an issue of whether the injury to the left shoulder was a disease of gradual process and, if so, what the deemed date of injury was. She also raised questions about onus of proof, if the disease provisions applied. She directed the appellant to provide written submissions on or before 20 June 2011 and the worker to respond on or before 27 June 2011.
In response to the Direction, the appellant’s solicitor, Ms Riordan, submitted that, to the extent that the Arbitrator had concluded that Mr Turner suffered a disease of gradual process, she had fallen into error, and Ms Riordan requested a reconsideration. She submitted that there was no medical evidence to support a finding that Mr Turner suffered any injury (either a personal injury or a disease injury) to his left shoulder under s 4 of the Workers Compensation Act 1987 (the 1987 Act). She said that the injury to the left shoulder was not a disease and the worker carried the onus of proving his allegation of consequential injury to his left shoulder, and he had failed to discharge that onus.
Mr Stanton filed written submissions in response on behalf of Mr Turner. He correctly observed that the Arbitrator had not determined any issues. He agreed with the appellant that, if the Arbitrator were to find that Mr Turner had suffered an injury in the nature of a disease of gradual process, she would fall into error because the disease provisions did not apply. Mr Turner’s case was that, because of the symptoms in his right shoulder, he favoured his right arm and the consequential overuse of the left arm resulted in symptoms and permanent impairment in the left shoulder (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)).
Though they were not requested in the Direction, Ms Riordan filed further submissions on 11 July 2011 in which she submitted that, among other things, there was an absence of evidence of the circumstances in which Mr Turner began to suffer symptoms in his left shoulder and there should be an award for the appellant with respect to the claim for the left shoulder.
In a decision delivered on 22 September 2011, the Arbitrator found against the appellant on all issues. With respect to the right shoulder, she found that the allegation of deterioration, with medical evidence to support further whole person impairment, was sufficient to trigger a referral to an Approved Medical Specialist (AMS). With respect to the left shoulder, she found that Mr Turner may not have been aware of the severity, or possible cause of the medical condition (in his left shoulder) until 2010 and s 254 and s 261 did not preclude him from obtaining benefits in the event that the left shoulder (condition) was a consequence of the injury to the right shoulder.
Though the Arbitrator said that Mr Turner’s statement was brief, inadequate and undated, after a review of the medical evidence, she concluded (at [32]) that there was a “surfeit of medical evidence supporting the claim of injury to the left shoulder” and concluded that Mr Turner “sustained an injury to the left shoulder as a consequence of the injury to the right shoulder”. She said the “deemed date of injury” was 8 April 2002. She remitted the claim to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment resulting from the condition of both shoulders.
The Commission issued a Certificate of Determination on 22 September 2011 in the following terms:
“The determination of the Commission is:

1.The claim, pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist for assessments of the right upper extremity (shoulder) with a date of injury being 8 April 2002 and left upper extremity (shoulder) the deemed date of injury being 8 April 2002.

2.The respondent to pay the costs of the applicant as agreed or assessed.”

The employer has challenged the Arbitrator’s decision that the worker suffered an injury to his left shoulder as a consequence of the injury to his right shoulder on 8 April 2002. It has not challenged any other orders or findings.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator:
(a)     erred in law in determining that the worker suffered an injury to his left shoulder as a consequence of the injury to his right shoulder on 8 April 2002;
(b)     denied the appellant procedural fairness by requiring it to file its submissions before the worker’s submissions and failing to address the appellant’s written submissions in her decision, and
(c)     misdirected herself as to the law in finding that the worker suffered a consequential injury to his left shoulder despite the evidence that he engaged in subsequent employment of a physical nature that coincided with the onset of symptoms in his left shoulder and in the absence of evidence sufficient to discharge the onus of proof in relation to the alleged injury to the left shoulder.

ARBITRATOR’S REASONS

After setting out matters relating to the right shoulder that are not the subject of challenge, the Arbitrator said (at [19]) that the parties agreed the disease provisions (which had been raised in the Direction of 6 June 2011) were irrelevant to the determination of the matters in dispute. She accepted that view and added that the Direction had not contained any findings.
She noted that the appellant relied on s 254 and s 261 of the 1998 Act and said:
“21. The applicant first noted signs and symptoms in his left shoulder in 2005. However, doing the best I can, with the limited information available, it seems the applicant may not have been aware of the severity, or possible cause of the medical condition, until 2010. Therefore, on balance, I find section 254 and section 261 of the 1998 Act do not preclude the applicant from obtaining benefits conferred by the 1987 Act in the event the injury to the left shoulder was a consequence of the injury to the right shoulder.

22. The statement of the applicant annexed to the Application is brief, inadequate and undated. It does not contain any information relating to employment after April 2002 and only basic information in respect of the injury to the left shoulder. A comprehensive statement on all issues, including delay, may have assisted the parties, the Commission and the conciliation process and also reduced the time required for the conference and the arbitration.”

She concluded that, having considered all the medical evidence and the parties’ submissions, Mr Turner sustained injury to his left shoulder as a consequence of the injury to his right shoulder. The deemed date of injury was 8 April 2002.

SUBMISSIONS

The appellant’s written submissions were prepared by its solicitor. After repeating the written submissions filed at the arbitration, Ms Riordan quoted the above paragraphs from the Arbitrator’s decision and submitted that [22] of the decision “supports a finding that the worker failed to discharge his onus of proving that more probably than not he suffered an injury to his left shoulder as a consequence of the injury to the right shoulder in 2002 and that it was not causally related to the employment in which he was engaged at the time that the left shoulder symptoms commenced”. The reference to the “employment in which he was engaged” at the time the left shoulder symptoms commenced was a reference to Mr Turner’s employment at the Club. Ms Riordan added that the second sentence of [22] supports a finding that the Arbitrator misdirected herself as to the law and determined issues in the absence of evidence that was sufficient to enable the worker to discharge the onus of proof.
It was submitted that the absence of evidence was not a matter of inconvenience for the parties or the Commission. The fact that Mr Turner did not obtain “sufficient evidence” or evidence “based on a proper and accurate history of injury” was fatal to his case. The Arbitrator did not identify any evidence in support of her finding that “the applicant may not have been aware of the severity, or possible cause of the medical condition, until 2010”.
To the extent that the Arbitrator relied on the evidence from Dr Watts dated 23 September 2010, the appellant submitted that the doctor’s opinion was not based on a proper or accurate history because it ignored the evidence that the left shoulder symptoms commenced while Mr Turner was working at the Club for an average of 35–38 hours per week (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita)). The same submission was made about the evidence from Drs Biggs and Dixon.
Next, it was argued that the Arbitrator erred in law in noting that the ultrasound in 2005 indicated a “degenerative tear in the supraspinatus tendon” and that “there was no intervening incident” because there was no evidence that the “degenerative tear in the supraspinatus tendon” revealed in the 2005 ultrasound was causally related to the injury to the right shoulder in 2002, bearing in mind that Mr Turner ceased work with the appellant in May 2002 and, at the time of the ultrasound, was “engaged in physical work as a doorman on a full-time basis”.
These matters had been raised in the appellant’s written submissions and were not considered adequately or at all by the Arbitrator. On that basis, and by requiring the appellant to lodge its submissions prior to Mr Turner, the Arbitrator denied the appellant procedural fairness.
At the oral hearing of the appeal, Mr Batten submitted that there was no evidence from Mr Turner of the circumstances of the onset of his left shoulder symptoms and it was not established that those symptoms had resulted from the right shoulder injury. He submitted that evidence from Dr Jones established that work at the Club caused a new injury in the nature of an aggravation injury to the right shoulder that was unrelated to the original injury. He said that the left shoulder symptoms came on at the Club as a result of the work Mr Turner did at the Club and Mr Turner had failed to establish that his left shoulder symptoms resulted from his 2002 injury to his right shoulder.

DISCUSSION AND FINDINGS

The appellant’s submissions involve a fundamental misunderstanding of the nature of the claim and the legal principles and authorities involved. Mr Turner did not allege that he suffered a s 4 injury to his left shoulder. His case, as was made clear in Mr Stanton’s written submissions at the arbitration, was that he has symptoms in his left shoulder as a result of the accepted injury to his right shoulder (Kooragang). He is claiming compensation for a consequential loss (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
To succeed, he has to establish that the symptoms and restrictions in his left shoulder have resulted from the effects of the 2002 injury to his right shoulder. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, whether the loss “resulted from” the relevant work injury (see Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 1998 16 NSWCCR 123; Rail Services Australia v Dimovski [2004] NSWCA 267; 2004 1 DDCR 648).
The Commission has considered this kind of claim in several recent decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo v Uniting Church of Australia t/as Lucan Care [2010] NSWWCCPD 41; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134) and has consistently applied the principles in Kooragang. By arguing that there is no evidence that Mr Turner suffered an “injury” to his left shoulder, the appellant has made the same error as the employer in Davis. The question is not whether Mr Turner suffered an injury to his left shoulder on 8 April 2002 but whether, as a result of the injury to his right shoulder, he has developed symptoms and restrictions in his left shoulder.
The facts in Kooragang are instructive and were considered in detail in Davis. The following summary is taken from Davis ([32]–[43]). The worker in Kooragang was a truck driver. He injured his back on 30 July 1981 while climbing up and down from his truck. He stopped work in June 1983. In September 1985, his general practitioner, Dr Furey, reported that the worker was:
“very distressed because of the delay in reaching a solution to his back difficulty. He felt that, if he did anything, people might be watching him. He was very upset. He was complaining of a knot in the stomach. He was depressed and he was placed on a tranquilliser.” (at 453–4)
In May 1986, Dr Furey described the worker as “very severely depressed”. His personality was being affected by the “chronicity of his condition”. In July 1987, Dr Furey advised the worker to go on a diet as his weight had increased because of his inactivity. In April 1988, the worker told Dr Furey that he had a lot of suicidal thoughts. Dr Furey felt that the length of time in the compensation system was the “root cause of all this”. In March 1989, the worker’s back continued to give him excessive pain, radiating down his leg.
In March 1991, the worker was again found to be “excessively depressed, anxious, still having problems at home and problems with his back”. He had a sudden, unexplained exacerbation of pain in November 1991. A CT scan on 6 November 1991 revealed degenerative disc disease, with a prolapse at L4/5 and significant degeneration at L5/S1. There had been a gross deterioration since the scan taken in April 1982.
On 16 March 1992, the worker received a letter from the insurer advising that compensation payments would cease from 29 March 1992. The worker saw Dr Furey on 19 May 1992 severely depressed. He said he did not have enough money to pay the doctor and that he would have to sell his house. He was worried and anxious about his future. On 8 June 1992, the worker died of a heart attack.
Dr Furey stated that, while the worker had antecedent myocardial disease, it was exacerbated by the “depressive and anxiety situation in which he found himself, as a result of the lengthy and protracted workers’ compensation situation”. He felt that the worker’s death had been accelerated by the “stress generated by the cessation of compensation payments and the peculiarities of the workers’ compensation system”. The heart attack had happened much earlier than the worker should have had it and was “totally related to his back injury and the failure to reach a satisfactory conclusion within a ten year period”.
The worker’s widow made a claim for compensation benefits, which the insurer denied. She relied on evidence from Dr Furey and Dr Schiller, physician, who concluded that the emotional stress and depression the worker experienced in the weeks leading up to his death, which resulted from the cessation of compensation payments and consequent financial crisis in which he found himself, contributed to his death from a heart attack. Dr Schiller added that the worker’s sedentary lifestyle due to his back injury and unemployment also contributed to the heart attack. The employer called no evidence.
The test of causation in a claim for death benefits under the 1987 Act is the same as in a claim for weekly compensation: if the death “results from an injury”, compensation is payable (s 25 of the 1987 Act).

The trial judge found that the deceased “suffered injury in the course of his employment on 30 July 1981; namely, injury to his lower back” (emphasis added) and that “[a]s a result thereof the deceased suffered myocardial infarction from the effects of which, on 8 June 1992, he died” (at 457E). The judge did not find that the worker suffered a psychological injury or that the heart attack was a personal injury.
The employer appealed. It argued that the prolonged incapacity, immobility, sedentary lifestyle, increased obesity, stress and anxiety, depression, and acute stress when compensation payments ceased were all “mere predisposing factors” that were not “causative in the relevant sense that it was not shown that the death ‘resulted from’ any of them, either individually or in conjunction” (at 460F).
Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at 463–4:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence”. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”.
In the present matter, it is not disputed that Mr Turner injured his right shoulder in the course of his employment with the appellant on 8 April 2002. He received a cortisone injection on 2 September 2002 and regular physiotherapy. He continued at work for the appellant doing light duties for a short time. While doing those duties for the appellant, he relied “heavily” on his left arm when scrubbing tables, which aggravated his left elbow because he was doing more work with his left arm and favouring his right shoulder. While it is acknowledged that the left elbow symptoms do not form part of this claim, it is clear that, because of his right shoulder injury, the worker was favouring his right shoulder as early as 2002. The Arbitrator referred to the left elbow symptoms when she considered the evidence from Dr Collins at [23] of her decision.
The appellant’s submission that there is no evidence that corroborates that the left elbow symptoms were causally related to the right shoulder injury fails to acknowledge that corroboration is not a requirement in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]). It also ignores the fact that the Commission is entitled to rely upon commonsense in evaluating questions of causation (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 1940 64 CLR 538 at 563–564, 569; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 per Mason J at 725). Commonsense suggests that, if Mr Turner was doing more work with his left arm, because he was favouring his right shoulder, as he said in his statement dated 16 December 2003, then the symptoms he developed in his left elbow (and later his left shoulder) have resulted from the injury to the right shoulder. The evidence goes much further than merely relying on a commonsense inference.
Mr Turner began to notice a gradual onset of pain in his left shoulder in early 2005. As the pain was “relatively mild” compared to the pain in his right shoulder, he did not immediately seek treatment for it. Because the pain continued, Mr Turner saw Dr Watts, who referred him for an ultrasound, which he had on 20 July 2005. This evidence is corroborated by Dr Watts, who said in his report of 23 September 2010 that his first recorded assessment of that issue (left shoulder pain) was on 18 July 2005, when Mr Turner “complained of increasing pain due to reliance on this shoulder due to the incapacity on the right”. The reference to “this shoulder” was clearly a reference to the left shoulder. The reference to the “incapacity on the right” was a reference to the restrictions Mr Turner suffered because of the injury to his right shoulder on April 2002.
Dr Watts diagnosed a “primary injury” to the right shoulder of a right supraspinatus tendon strain and a “secondary injury” to the left shoulder of a partial supraspinatus tear with acromioclavicular joint inflammation and degenerative change. On the issue of causation of the left shoulder pathology, Dr Watts said:
“It is my opinion that the development of pathology in the left shoulder is a consequence of over reliance on this arm following the injury to his right shoulder. He was asymptomatic for 3 years prior to presenting this issue and the reference in his ultrasound assessment on 11/6/2002 reports the left supraspinatus tendon to be normal. He had no intervening incident to provoke an acute tear so degenerative changes related to overuse precipitating this pathology is the likely explanation.”
Mr Turner had surgery on his right shoulder on 8 February 2006, 4 April 2007 and 25 July 2007. He said that, following each operation on his right shoulder, he relied “even more heavily” on his left shoulder, “which continued to be somewhat irritable and painful”. He added that his concern, however, was his right shoulder.
Mr Turner’s treating orthopaedic surgeon, Dr Biggs, reviewed him on 25 February 2010. He reported on 23 September 2010 that Mr Turner reported increasing problems with left shoulder pain over the previous 12–18 months “that he [Mr Turner] felt was due to the increased workload that the left upper limb had been required to do while he had undergone repeated surgery and repeated post operative rehabilitation of the right shoulder”. Dr Biggs concluded that the ongoing left shoulder symptoms were “due to the increased workload that his left upper limb has been required to do following the repeated surgical procedures and post operative rehabilitation programs that the right shoulder has had to undergo”.
I do not regard the absence of a complaint of left shoulder symptoms to Dr Biggs prior to February 2010 to be of any significance. Dr Biggs clearly focused his attention on the treatment of the right shoulder. Given that Dr Watts corroborated Mr Turner’s complaint of shoulder pain in 2005, there was no need for Mr Turner to explain the lack of reference to left shoulder symptoms by Dr Biggs until 2010.
Dr Dixon, orthopaedic surgeon, took a history in his report of 13 May 2010 that “[w]hile favouring his right shoulder over the last few years, [Mr Turner] has developed pain and stiffness in his left shoulder”. He added under “present symptoms” that Mr Turner had “developed pain in his left shoulder as a result of over reliance on that shoulder to compensate for the injury to the right shoulder”.
After referring to the evidence I have summarised above, the Arbitrator said (at [32]) there was a “surfeit of medical evidence supporting the claim of injury to the left shoulder” and that causation was the issue. She added (at [33]) that Mr Turner:
(a)     alleged injury with a deemed date of 8 April 2002;
(b)     worked a 35–38 hour week in 2004 and 2005;
(c)     first noted symptoms in the left shoulder in 2005, and
(d)     says there was an increase in symptoms following the surgery in 2006.
The Arbitrator found the report from Dr Watts to be of “real assistance”. She then referred to the 2002 ultrasound, which showed no damage, and the 2005 ultrasound, which showed a “degenerative tear in the supraspinatus tendon” and said, “there was no intervening incident”. She concluded (at [35]) that Mr Turner sustained an injury to the left shoulder as a consequence of the injury to his right shoulder and that the deemed date of injury was 8 April 2002.
While Dr Watts (and the Arbitrator) erred in referring to an ultrasound of the left shoulder having been done on 11 June 2002 (that ultrasound was of the right shoulder only), that error does not undermine the conclusion reached. The compelling evidence is that Mr Turner’s left shoulder symptoms developed as a result of additional use of and strain placed on his left shoulder over time because of the injury to his right shoulder. This conclusion does not depend on there having been a normal ultrasound in 2002 and is not altered by the incorrect reference to the 2002 ultrasound being of the left shoulder.
I do not accept the appellant’s submission that the worker’s medical evidence was not entitled to weight because the doctors took inaccurate or incomplete histories.
In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, the Court of Appeal examined the application of Makita to proceedings in the Commission. Beazley JA (Giles and Tobias JJA agreeing) said (at [82]) there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to 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” ([85]).
The opinion of Dr Watts was based on the following:
(a)     his history of the significant right shoulder injury;
(b)     Mr Turner having been asymptomatic in his left shoulder for three years until he presented in July 2005 complaining of increasing pain due to reliance on that shoulder due to incapacity on the right;
(c)     the normal ultrasound of the left shoulder in 2002;
(d)     the abnormal ultrasound of the left shoulder in July 2005, which demonstrated a degenerative tear in the left supraspinatus tendon, and
(e)     the absence of an intervening incident to provoke an acute tear so the degenerative changes related to overuse precipitating the pathology were the most likely explanation.
Though Dr Watts erred in referring to the normal ultrasound of the left shoulder in 2002, that error is of no consequence. The relevant history was that the left shoulder was asymptomatic until 2005 and that the symptoms at that time were of increasing pain due to reliance on the left shoulder because of “incapacity on the right”. The incapacity on the right was due to the compensable injury to the right shoulder that occurred on 8 April 2002.
The appellant also submitted that the evidence from Drs Biggs and Dixon failed to comply with Makita and should be afforded little, if any, weight. Its argument was that Dr Biggs took a history that Mr Turner suffered increasing problems with his left shoulder over the 12–18 months prior to February 2010, which was inconsistent with Mr Turner developing symptoms in 2005, as recorded by Dr Watts, and Dr Dixon took a history that Mr Turner had been favouring his right shoulder “over the last few years”. The appellant further submitted that neither Dr Biggs nor Dr Dixon recorded a history of the work at the Club.
The alleged inadequate histories recorded by Drs Biggs and Dixon are of no consequence. The critical history was that, because of his right shoulder symptoms, Mr Turner used his left arm (and shoulder) more and developed symptoms in his left shoulder. Drs Watts, Biggs and Dixon all took that history and concluded that Mr Turner’s left shoulder symptoms resulted from his right shoulder injury. That history provided a fair climate for the acceptance of their opinions (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510) and the Arbitrator did not err in accepting them. The appellant’s Makita point was without substance.
The submission that there is no evidence that the degenerative tear in the supraspinatus tendon revealed in the 2005 ultrasound was causally related to the 2002 right shoulder injury is simply wrong. Dr Watts provided clear evidence to that effect when he said that the development of pathology in the left shoulder was a consequence of over-reliance on that arm following the injury to the right shoulder. His opinion is consistent with the evidence of Drs Biggs and Dixon and is not contradicted by any expert evidence called on behalf of the appellant. The Arbitrator did not err in accepting that evidence.
The Arbitrator’s reference (at [22]) to Mr Turner’s undated statement being brief and inadequate was a reference to the poor standard of preparation of that statement by his solicitor. While I agree that the statement was less than ideal, that did not mean that Mr Turner’s claim had to fail or that the Arbitrator erred in referring to it. His statement had to be read with the other evidence in the case from the medical experts. That evidence was all one way and comfortably established that Mr Turner did use his left arm more because of his 2002 right shoulder injury and, as a result, developed significant symptoms in his left shoulder. Evidence recorded in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369 at [75]). The connection between the condition of Mr Turner’s left shoulder and his right shoulder injury is clearly established on the evidence.
The appellant’s submissions seem to have assumed that Mr Turner cannot (or should not) succeed because his left shoulder symptoms started while the Club employed him in 2005. This approach is misconceived. Exactly when the shoulder symptoms developed is not determinative. The relevant question is not when those symptoms started, or what he was doing at that time, but whether they resulted from the right shoulder injury. If, because of the restrictions in his right shoulder, Mr Turner used his left shoulder more and developed symptoms in that shoulder, it does not matter that the left shoulder symptoms developed while working for a different employer. They have resulted from the original injury. It follows that the failure by Dr Watts (and Drs Biggs and Dixon) to refer to the work at the Club was not relevant. Dr Watts correctly recorded that there was no traumatic incident that provoked an acute tear.
Mr Turner did not have to prove that his left shoulder symptoms were not causally related to the work he performed at the Club, as the appellant’s submissions have suggested. His case was that his left shoulder condition resulted from the injury to his right shoulder. The lay and medical evidence provided compelling support for that case. The fact that he was working for the Club at the time he first noticed symptoms in his left shoulder does not detract from the evidence that, as a result of his right shoulder injury, he had to use his left shoulder more and suffered symptoms in his left shoulder. Whether the additional use was while he performed domestic activities or while he worked at the Club is not determinative of the question before the Arbitrator.
The submission that the worker bore the responsibility for failing to tender evidence regarding his employment at the Club misunderstands the basic legal principles involved. Even if it were found that the left shoulder symptoms had been caused by Mr Turner’s work at the Club, the principles in Cluff v Dorahy Bros (Wholesale) Pty Ltd [1972] 2 NSWLR 435 (Cluff) apply.
In Cluff, the Court of Appeal considered the situation where a worker had an injury with one employer which left him vulnerable to increased disability by the effects of further work with a second employer, and held (Reynolds JA, Hope and Glass JJA agreeing) at 439:
“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.
It is also not open to doubt that, if a worker receives a disability in the employment of A, and subsequently receives an injury in the employment of B which is causally related to the original disability, it is open to the tribunal to conclude that any incapacity arising after the second injury resulted from the first injury.”
Mr Turner’s 2002 injury rendered him vulnerable to increased disability by the effects of further work. If his work at the Club brought about those effects, which, on the evidence, is far from clear, it is open to a tribunal of fact to hold that the ultimate incapacity (or, in this case, impairment) has resulted from the original injury.
Regardless of the principles in Cluff, there is no medical evidence that Mr Turner’s work with the Club caused the condition in his left shoulder. Dr Jones, orthopaedic surgeon qualified by the insurer, took a history of the work at the Club in his report of 26 June 2006 but took no history that that work caused any problems with the left shoulder. Dr Jones recorded that, while working as a doorman at the Club, Mr Turner’s right shoulder became sore again. Notwithstanding that history, he concluded, that “the specific injury sustained on 8 April 2002 was the cause of [Mr Turner’s] condition” in his right shoulder. This opinion gives no support for the submissions made by Mr Batten on appeal that Mr Turner suffered an aggravation injury to his right shoulder with the Club.
It follows that the Arbitrator did not misdirect herself as to the law and did not determine the case in the absence of evidence.
The appellant’s next point is that the Arbitrator required the appellant to file its written submissions first, failed to consider them, and denied the appellant procedural fairness. Though Mr Batten did not speak to this submission, he did not abandon it. I do not accept the submission.

The Direction of 6 June 2011 sought submissions on the relevance of the disease provisions. The Arbitrator considered these submissions and correctly noted (at [19]) that the parties in essence agreed that the disease provisions were irrelevant. Given the narrow issue on which the Arbitrator sought submissions, it was of no consequence that the Arbitrator required the appellant to file its submissions first. The appellant has cited no authorities in support of its submission that it was denied procedural fairness. The rules of procedural fairness require only that a party be given a reasonable opportunity to present his or her case (Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; 1989 63 ALJR 298 at 305). The appellant had every opportunity to present its case and did so. There was no denial of procedural fairness.
If the appellant’s real complaint is that the Arbitrator failed to give adequate reasons for her decision, this has not been identified as a ground of appeal. If that were a ground of appeal, I would reject it. The Arbitrator’s decision reveals the basis for her decision, namely, the acceptance of Mr Turner’s medical and lay evidence. The Arbitrator’s reasons must be read in context. A tribunal such as the Commission should avoid an “overly pernickety examination of the reasons” (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575). The focus of attention is on the substance of the decision and whether it has addressed the real issues presented by the parties (Roncevich v Repatriation Commission [2005] HCA 40 at [64]). The Arbitrator dealt with the real issue by reference to the evidence and indicated the basis for her acceptance of Mr Turner’s case.

OTHER MATTERS

I accept that the Arbitrator erred in her reference to an “injury with a deemed date”. As the disease provisions do not apply, there is no “deemed date” of injury. The relevant injury occurred on 8 April 2002 when Mr Turner injured his right shoulder. However, the Arbitrator’s error is of no consequence because her reasons make it clear that she correctly focused her attention on the real issue in dispute, namely, whether Mr Turner’s left shoulder symptoms had resulted from the right shoulder injury.
The Arbitrator’s reference to Mr Turner having injured his left shoulder, if it was a reference to a s 4 injury, was incorrect. The better view is that, where the Arbitrator referred to the left shoulder injury, she meant injury in the sense of “condition” (Holdlen Pty Ltd v Walsh [2000] NSWCA 87 at [33]). For the reasons explained above, the finding that the left shoulder condition was a consequence of the 2002 right shoulder injury was open on the evidence and disclosed no error. The evidence overwhelmingly supports that conclusion and the appellant has not pointed to any contrary evidence that demonstrates any relevant error in the Arbitrator’s decision.
The appellant has criticised the second sentence of [21] of the Arbitrator’s decision, where she said that it seemed that Mr Turner “may not have been aware of the severity, or possible cause of the medical condition [of his left shoulder], until 2010”. The criticism is that the Arbitrator did not identify any evidence to support that finding. However, as the appellant has not challenged the Arbitrator’s findings on the “notice” issue in its grounds of appeal, the relevance of this criticism is unclear.
Given Mr Turner’s evidence that his symptoms in his left shoulder were initially “relatively mild” compared to his right shoulder, and that he underwent surgery for his right shoulder, it is understandable that he focused on the right shoulder. If it were relevant, it was open to the Arbitrator to concluded that Mr Turner may not have been aware of the severity of his left shoulder condition. That is especially so in circumstances where his concern was his right shoulder, on which he had had three operations.
More importantly, the “notice” issue was irrelevant and should never have been pleaded. As I have explained above, Mr Turner did not allege that he received a s 4 injury to his left shoulder. The injury was to his right shoulder on 8 April 2002. There is no dispute that he gave notice of that injury under s 254 and claimed compensation within time under s 261. A worker is considered to have made a claim for compensation when the person makes “any claim for compensation in respect of the injury or death concerned” even if the person’s claim did not relate to the particular compensation in question (s 261(3)). Thus, Mr Turner complied with the notice requirements when he claimed compensation for his right shoulder.

CONCLUSION

It follows that the Arbitrator did not err in finding that Mr Turner’s left shoulder condition resulted from his right shoulder injury. However, she wrongly found a deemed date of injury of 8 April 2002 with respect to the left shoulder condition. That error makes no difference to the outcome, but requires that the determination be revoked and the correct order made in its place. Notwithstanding this error, the appellant has failed in its appeal and must pay the respondent worker’s costs.

DECISION

Paragraph 1 of the Arbitrator’s determination of 22 September 2011 is revoked and the following order made in its place:
“1. The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of injury to the right upper extremity (shoulder) on 8 April 2002 and as a result of the condition of his left upper extremity (shoulder), which condition has resulted from the injury to the right shoulder.”
Paragraph 2 of the Arbitrator’s determination is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal.

Bill Roche

Deputy President
31 January 2012

I, MARGOT UNDERCLIFFE, 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