Benz v Benz Ceramics and Glass Pty Ltd - [2013] NSWWCCPD 6

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Benz v Benz Ceramics and Glass Pty Ltd [2013] NSWWCCPD 6
APPELLANT:		Erika Benz
RESPONDENT:		Benz Ceramics and Glass Pty Ltd
INSURER:		GIO General Limited
FILE NUMBER:		A1-4244/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		19 October 2012
DATE OF APPEAL DECISION:		13 February 2013
SUBJECT MATTER OF DECISION:		Challenge to factual findings; findings as to credit of witness; Regulation 49 of the Workers Compensation Regulation 2010
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Herbert Weller Solicitor
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1. The orders, direction and certification found in Certificate of Determination dated 19 October 2012 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND

Ms Erika Benz commenced employment with Benz Ceramics and Glass Pty Ltd (the respondent) on 1 November 2001. She was employed as a packer. Her duties involved shifting, stacking and unpacking glassware in readiness for a glazing process following which she was required to re-pack the merchandise. Ms Benz performed this work up until 2008 at which time she ceased work by reason of alleged injury.
Ms Benz alleged that she received injury to her left knee in the course of her employment on 20 May 2008. The occurrence of that injury has not been disputed by the respondent. It is further alleged that as a result of the nature and conditions of her work she has received injury to both wrists, hands and forearms. It was also alleged that, by reason of the disability suffered in her left knee, Ms Benz fell at her home on 28 February 2009 causing injury to her right knee and further aggravating the condition of her left knee.
It is relevant to note that Ms Benz had received injury to both arms in the course of her employment with Benz Investments Pty Ltd t/as Permanent Print Ceramics (Benz Investments Pty Ltd). Those injuries followed a prolonged period of repetitive process and packing work performed for that employer. Symptoms first appeared in 1988 following which she was treated by Dr Dixon, general practitioner. By reason of painful symptoms in both arms she ceased work in December 1991. Ms Benz underwent surgical procedures at the hands of Dr Richard Honner in 1992. She continued to experience painful symptoms and was treated by Dr Milton Cohen, rheumatologist, and was subsequently referred to Dr David Gronow of the Sydney Pain Management Centre. Compensation benefits were claimed against that employer and litigation ensued. The evidence does not reveal full particulars of the litigation, however, the record of the former Compensation Court reveals that Ms Benz redeemed/commuted her rights against Benz Investments Pty Ltd in the sum of $100,000 in August 2001. The relevant short minutes of order indicate that Ms Benz’s rights were redeemed/commuted from 1 September 1973, which suggests that such was the date upon which she commenced employment with that employer.
Following termination of Ms Benz’s employment with the respondent in November 2008 a dispute arose concerning her entitlement to ongoing compensation benefits. Proceedings were commenced by her before the Commission claiming medical expenses and ongoing weekly payments from 20 May 2008. The relevance of that commencement date is not apparent from the evidence, given that she continued to work for a period following injury. There is no evidence before the Commission concerning any benefits that may have been paid on a voluntary basis by the respondent’s insurer. No particulars of claim in respect of medical, hospital and rehabilitation have been put before the Commission. Ms Benz has not returned to gainful employment since she last worked with the respondent.
Ms Benz’s Application seeking determination of her entitlement to compensation came before Arbitrator Paul Sweeney on 3 September 2012. It was made clear by Ms Benz’s solicitor at that hearing that the body parts affected by the alleged injuries included both wrists, hands and forearms and both knees. It should be noted that the “injury description” appearing in Ms Benz’s application included an allegation of “anxiety and depression”. The Arbitrator reserved his decision at the conclusion of that hearing and a Certificate of Determination accompanied by a Statement of the Arbitrator’s reasons (Reasons) issued on 19 October 2012. The Arbitrator made a finding of injury to the left knee. Ms Benz’s allegations of injury to the other parts of her body and of psychological injury were rejected by the Arbitrator in the course of his Reasons. A finding was made that, as a result of the left knee injury Ms Benz was partially incapacitated up until 21 October 2009. The Certificate of Determination records the Arbitrator’s orders as follows:
“1. Award for the applicant pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $381.40 per week from 4 October 2008 to 31 March 2009; at the rate of $389.10 per week from 1 April 2009 to 30 September 2009; and at the rate of $396.10 per week from 1 October 2009 to 21 October 2009.
2.     Credit to the respondent for payments of compensation made during the above period.
3.     Liberty to apply in respect of s60 expenses.
4.     Respondent is to pay the applicants costs as agreed or assessed.
5.     Certify the matter as complex and order an uplift of 20 per cent on the costs of both parties.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

I note at the outset that the manner in which this appeal has been presented, fails to comply with the requirements of Practice Direction No 6. In particular, Ms Benz has failed to enunciate her grounds of appeal. The documentation provided in support of the appeal comprises 11 short submissions, most of which appear to challenge the Arbitrator’s findings of fact. One submission (at [9]) complains of error on the part of the Arbitrator in rejecting tender of a medical report. The balance of the submissions make complaint concerning the Arbitrator’s reasoning process and his preference for particular evidence. The submissions do not include precise challenges to particular findings. Having regard to the general tenor of the submissions, it appears that error by the Arbitrator is suggested in the following respects:
(a)     failing to properly consider the evidence;
(b)     finding as a fact that Ms Benz suffered “an ‘aggravation’ her (sic, of her) left knee on 20 May 2008” (at [2] of submissions);
(c)     in preferring the evidence of Dr Smith rather than that of Dr Davis (at [3] of submissions);
(d)     in rejecting the tender by Ms Benz of the report of Dr Conrad dated 28 June 2012, and
(e)     in making a determination that “limited [Ms Benz’s] incapacity to 21 October 2009”.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE ARBITRAL PROCEEDINGS

The Evidence

The documentary evidence which was before the Commission was summarised by the Arbitrator at [11] of his Reasons. Counsel appearing on behalf of the respondent sought and was granted leave to cross-examine Ms Benz. The proceedings were recorded and a transcript (T) has been produced and made available to the parties. The evidence of Ms Benz appears between T13 and T43.
Mr Weller, solicitor for Ms Benz, sought to tender two reports of Dr Peter Conrad, surgeon, dated 9 February 2012 and 28 June 2012. The first of those reports had not been served upon the respondent’s solicitor and the second report had been served in late June 2012. Objection to that tender was raised by Mr Odling, counsel for the respondent. Following argument concerning admissibility, the Arbitrator rejected the tender of those reports. His reasons for so ruling are recorded at T8 and T9.
The evidence of Ms Benz is to be found in two statements, the first dated 23 April 2012, the second said to be dated 16 July 2012, and in her oral evidence as recorded in the transcript. In the first of those statements Ms Benz provides a detailed description of the nature of her duties performed whilst employed by the respondent between November 2001 and the termination of that employment in November 2010. There is no dispute that the work performed by Ms Benz required repetitive manual handling of glassware and the operation of a hand held forklift to enable movement of pallets. That work also involved constant twisting and lifting. Ms Benz further states that “after a short time having worked in the factory I would have pain in my hands, wrists, arms, shoulders and back. In about April 2008, I cut back to four days per week”.
Ms Benz proceeds to state that in January 2002 she experienced “pain and ache” in both her wrists and forearms. She did not report this matter to her employer. I note that the principal of the respondent business is Ms Benz’s brother, Mr Ernie Benz. On 20 May 2008 in the course of her work, Ms Benz injured her left knee as she was lifting and stacking boxes of merchandise. It is stated that she felt a very sharp pain and heard a cracking sound in her left knee. Ms Benz took a 10 minute break and then continued with her duties. Pain persisted in the knee. That injury was reported on that day to Mr Benz.
Immediately following the knee injury Ms Benz continued work and she experienced a worsening of her knee pain. She consulted her general practitioner, Dr Dixon, on 11 June 2008 who referred Ms Benz for a MRI investigation. Ms Benz did not claim compensation at that time; however, Mr Benz reimbursed Ms Benz in respect of the cost of the MRI. He also provided a knee guard and some ointment. Ms Benz states that her brother attempted to dissuade her from making a compensation claim. It was stated by Mr Benz that “if you get the GIO involved I will sack you”.
Ms Benz continued to work with difficulty. She noted swelling in the left knee. She favoured her left leg and noticed that her right knee “was becoming a problem”. Ms Benz consulted Dr M K Lalji, general practitioner on 3 October 2008. That practitioner provided a workers compensation medical certificate which was delivered to Mr Benz’s home by Ms Benz’s partner. Ms Benz took two weeks off work during which time her knees improved “but they (sic) were not 100 per cent”. Later in October 2008 Ms Benz received a telephone message from her sister-in-law, Marianne Benz, informing her that she “had to come back to work and work for two hours per day”. She was informed that that arrangement had been suggested by the insurer. In the meantime, Dr Lalji had issued certificates certifying Ms Benz as unfit for work up until 7 November 2008. Ms Benz states that she “continued to attend work until I was sacked on the 1st (sic) November 2008”.
Ms Benz further states that at her home on 28 February 2009 her left knee gave way and she began to fall. She attempted to prevent the fall by reaching for a ladder; however, she fell onto her left knee and then onto her right knee. Shortly after that fall her right wrist was very painful, bruised and had become swollen.
Ms Benz states that on 8 February 2012 as she stood up from a seated position and proceeded to walk along the footpath in Macquarie Street, Sydney, her left knee gave way and she fell towards the pavement. She fell upon both knees. Following that fall she felt pain in both arms, both knees and both shoulders. The pain in the right shoulder settled down within a few hours of the fall. Ms Benz remained at her home thereafter for a period of two weeks. The pain in both arms, both knees and the left shoulder did not improve. She continued to see Dr Lalji.
The statement of Ms Benz, said to be dated 16 July 2012, addresses her work history dating from 1973 at which time she commenced employment with a family business where she remained until approximately 1990. Her duties concerned manually handling glassware which work was described as repetitive and labour intensive. In 1991 Ms Benz had been diagnosed with carpal tunnel syndrome following which she had surgery, was prescribed medication and underwent remedial treatment, physiotherapy and rehabilitation. Ms Benz remained off work until she commenced work with the respondent in 2001. It is stated that during that 10 year period, her “health and wellbeing increased back to previous activity levels”. Ms Benz states that at the time of commencement of work for the respondent she felt fit for the work and enjoyed working again. The pain in her wrists and arms, upper body and her back is stated to have commenced in about January 2002. That pain and discomfort was not reported to Mr Benz. The statement includes repetition of the incidents earlier noted, said to have occurred in May 2008 and February 2012. Ms Benz states that since she stopped work in 2008 she has continued to experience pain in both wrists and her left knee and has been generally disabled.
The oral evidence of Ms Benz which the Arbitrator considered relevant to his adjudication of the dispute is set forth at [24] and [25] of his Reasons. At [26] of those Reasons the Arbitrator summarised other aspects of her evidence when cross-examined. That evidence is relevant to matters raised on this appeal and concern Ms Benz’s physical state at the time she returned to the workforce in 2001 and her recollection of matters reported by her to the medical practitioners she had earlier attended.
The expert medical evidence relied upon by Ms Benz included two reports from Dr David W Dixon who had treated Ms Benz for a period of more than 30 years. Dr Dixon states in his report dated 17 August 2010:
“My only contact with regard to a possible compensatory injury was on 10/06/2008”.
Ms Benz had presented to Dr Dixon on that date informing him that she had severely twisted her left knee two weeks earlier. Work was not mentioned during that consultation. An MRI investigation of the knee was arranged. Dr Dixon saw Ms Benz again on 16 June 2008 at which time the MRI reported bony contusion with oedema along the medial collateral ligament. This was in keeping with a sprain only. No certificates were issued by Dr Dixon. Ms Benz next attended that practice on 4 July 2008 at which time she saw Dr Longworth complaining of aches in her left knee. Some swelling was noted and digesic tablets were prescribed. Dr Dixon records that Ms Benz attended Dr Longworth again on 30 May 2009 at which time she mentioned a fall onto her knees and that she had grabbed a rail at the time causing pain in her right hand.
Ms Benz relies upon the evidence of Dr Lalji, which is found in his report dated 9 January 2010. That practitioner was first consulted by Ms Benz on 3 October 2008. Dr Lalji was given a history of injury to the left knee in the course of her work sometime in May/June 2008. Dr Lalji had access to the MRI findings arranged by Dr Dixon. His report records that that study demonstrated “small joint effusion with contusion along the medial condyl with oedema along the MLC in keeping with the effects of a recent sprain injury but no local tear was seen. No local tear was seen. No meniscal tear was visualised”. Dr Lalji advised rest and prescribed anti-inflammatory medication. A workers compensation medical certificate was issued at that time certifying her as being unfit for normal duties. Ms Benz was referred to Dr Anthony Smith, orthopaedic surgeon. Dr Lalji’s report records that Ms Benz had complained of pain in both her arms. The date of those complaints is not recorded; however, Dr Lalji notes that Ms Benz had been diagnosed as having bilateral carpal tunnel in 1991 which had been treated surgically. Ms Benz was referred to Dr Robert A Elliott, orthopaedic surgeon.
A large number of WorkCover medical certificates issued by various practitioners at Dr Lalji’s practice are in evidence. On 7 November 2008 Dr Lalji issued a certificate certifying that Ms Benz was fit for pre-injury duties from that date. That certificate purported to be a final certificate, however, many certificates were issued thereafter certifying that Ms Benz was fit for suitable duties by reason of her knee injury. It is to be noted that mention in those certificates of bilateral carpal tunnel syndrome first appeared in a certificate issued by Dr Prabhu, Dr Lalji’s locum, on 11 August 2009.
The evidence of Dr Anthony Smith is to be found in one report tendered on behalf of Ms Benz and in a series of reports by Dr Smith tendered on behalf of the respondent. I note in passing that, notwithstanding the fact that Dr Smith was the treating orthopaedic surgeon, the respondent’s insurers saw fit to qualify Dr Smith to provide a report for the purposes of this litigation. That report, addressed to the insurer, is dated 21 October 2009. It appears that Ms Benz first consulted Dr Smith on 28 January 2009 at which time the history of left knee injury was given by her and recorded by Dr Smith. Ms Benz had presented in possession of the MRI scan taken in June 2008. Dr Smith also examined Ms Benz’s back and expressed the view that investigation should be conducted with respect to the state of her lumbar spine. Ms Benz attended Dr Smith on a number of subsequent occasions at which time attention was given by Dr Smith to the condition of her knee and back.
Dr Smith, in his report to the insurer, made reference to the radiological studies concerning Ms Benz’s knees. He was of the view that Ms Benz had “arthritic change affecting both her knees”. That report, which related to an examination conducted on 21 October 2009, includes a recorded history of “pins and needles in both her hands”. With respect to the left knee Dr Smith expressed the view that the exacerbation of May 2008 had settled. With respect to Ms Benz’s complaints concerning her forearms, wrists and hands, Dr Smith expressed the view “I wouldn’t have thought she has carpal tunnel syndrome based on the ultrasound examination of the median nerve entering the tunnel”.
The evidence of Dr Elliott is found in a number of reports tendered on behalf of Ms Benz. That practitioner reports that the results of EMG and nerve conduction studies were “entirely normal”. Dr Elliott considered that Ms Benz did have a “weakly positive Adson’s sign on the left side” and arranged for an MRI of her cervical spine and supra clavicular fossae to exclude a cervical rib. A subsequent ultrasound of both wrists demonstrated “some flattening of both media nerves”. Dr Elliott proposed decompression of Ms Benz’s left carpal tunnel. That procedure did not take place having regard to the insurer’s denial of liability.
Ms Benz relied upon the opinion of Dr John Davis, specialist in Occupational Medicine, who had been qualified by her solicitors for the purpose of these proceedings as found in his report dated 13 October 2010. Dr Davis recorded a history of developing pain in Ms Benz’s left wrist in approximately 2002. Those symptoms slowly extended along the ulna border of her left upper limb and she developed symptoms of a similar nature, although of a lesser degree, on the right side. Dr Davis expressed the view that Ms Benz was suffering with “what may be best described as occupational overuse injury or accumulative trauma disorder affecting her neck and left upper extremity which is consistent with the nature and conditions of her employment at (sic, with) [the respondent] where she undertook repetitive movements of heavy lifting”.

Dr Davis also took a history of injury of the left knee occurring at work on 20 May 2008. A diagnosis of a strain injury to the left knee and chondral damage to the posterior surface of the left patella consistent with a twisting injury was made.
The respondent tendered in evidence a number of reports of medical practitioners who had examined Ms Benz before she commenced work with the respondent, some of whom treated her in respect of the disability for which she received the redemption/commutation sum in 2001. That material included reports from Dr Mark Liew, consultant rheumatologist who treated Ms Benz following her referral to him by Dr Dixon in 1990. A number of reports from Dr Christopher Brown are in evidence. Dr Brown had been qualified by Ms Benz’s previous solicitors to provide medico legal reports for the purpose of the earlier litigation. Also included among that material is a report from Dr Milton Cohen, of the St Vincents Hospital Pain Clinic, relating to treatment which occurred in 1994. A medico legal report by Dr James Bodel, orthopaedic surgeon, dated 26 June 2000 is also in evidence. There are a number of other reports relating to treatment and investigation which had been tendered on behalf of the respondent. Some detail of this expert medical evidence was relied upon by the Arbitrator in the course of his reasoning (between [65] and [72] of Reasons).

SUBMISSIONS BEFORE THE ARBITRATOR

Counsel for the respondent argued that Ms Benz’s evidence concerning the state of her upper limbs at the date of commencement of employment with the respondent was contradicted by other evidence including that of Dr Bodel, Dr Brown and Dr Dixon. The symptoms complained of by Ms Benz when working for the respondent should be taken as “revelation” rather than “genesis”. Emphasis was placed in argument upon the absence of evidence of complaint of arm disability to treating doctors at the time Ms Benz suggests she was suffering from such symptoms. Dr Elliott’s evidence was relied upon in support of the submission that any arm disability was related to the previous employment, not to “anything that’s happened in the employ of [the respondent]” (at T50).
With respect to the allegation concerning knee injury, counsel placed reliance upon the evidence of Dr Smith who had stated that employment was not a substantial contributing factor to the development of the degenerative process present in both Ms Benz’s back and knees. If it be accepted that there was a strain to the knee, counsel argued that the Arbitrator would not be satisfied “that the effects of the strain are persisting”.
Ms Benz’s solicitor argued that it should be accepted that injury to the arms and the knee had been received and that she was entitled to compensation as claimed. Emphasis was placed upon the physical requirements of the work and the likelihood of causation of the bilateral arm problems of which she complains. It was put that it should be accepted that Ms Benz was symptom free in her arms at the time she commenced employment with the respondent.
With respect to the knee injury, it was argued that a finding should be made that symptoms experienced in May 2008 continue.

The Arbitrator’s decision

The Arbitrator, at [14] of Reasons, recorded the issues for determination, as stated by the respondent’s counsel, as follows:
“(a) whether the applicant suffered injuries to her wrists and hands as alleged in the Application, and
(b) whether the effects of the injury to the applicant’s left knee continued after 3 December 2009.”
Following a thorough summary of the evidence and submissions put on behalf of each party the Arbitrator proceeded to consider a threshold question as to “whether the written and oral evidence of the applicant is reliable” (at [57] of Reasons). It was noted by the Arbitrator that complaints concerning disability in the upper limbs as recorded in contemporaneous medical records:
“suggest a somewhat different history to that recorded in [Ms Benz’s] supplementary statement, that during her time off work her ‘wellbeing increased back to previous activity levels’ and that she was able to enjoy social activities with friends ‘such as seeing theatre shows in Sydney, attending functions at the local RSL and bowling club, dancing and seeing bands in the local area’.The complaints recorded in the report of Dr Bodel are starkly different to some of the responses elicited by [counsel for the respondent] in cross-examination …”
Having regard to the state of the evidence, the Arbitrator reached the following conclusion concerning the reliability of Ms Benz as a witness:
“I appreciate that a decade has passed since the consultation with Dr Bodel and the
applicant’s commutation and return to work in 2001. It is understandable that her recollection of these events may not be crystal clear. Nevertheless it was my impression both from the manner in which she answered questions and the content of those answers that the applicant was not an entirely reliable witness. In resolving the contested issues in this matter, I propose to look primarily to the medical histories and the contemporaneous records, which are likely to be more reliable than the evidence of the applicant” (at [62] of Reasons).
The Arbitrator dealt firstly with the allegation concerning injury to the upper limbs. Following a careful consideration of the evidence of Ms Benz and that of Dr Dixon, Dr Smith, Dr Davis, Dr Lalji, Dr Elliott and Dr Bodel the Arbitrator stated that he was not satisfied “that [Ms Benz] has established that she suffered injury to her arms in the course of employment with the respondent or, if she did suffer injury, that the employment was a substantial contributing factor to the injury” (at [73] of Reasons).
With respect to the allegation of injury to the left knee, the Arbitrator noted that such injury was not disputed in the respondent’s Notice issued to Ms Benz pursuant to s 74 of the 1998 Act. The Arbitrator found that it “seems plausible that in continuing to work in what was moderately repetitive work up to 3 October 2008, [Ms Benz] may have exacerbated the condition of the left knee”. The Arbitrator further accepted that the applicant was incapacitated for work by reason of the aggravation of osteoarthritis affecting her left knee during October 2008. A conclusion was reached that the medical evidence, on balance, suggests that Ms Benz was unfit for her pre-injury work after 7 November 2008 by reason of the condition of her left knee. Concerning the duration of such incapacity the Arbitrator preferred the evidence of Dr Smith to that of Dr Davis and concluded that Ms Benz had been incapacitated for work by reason of the injury to her left knee from 4 October 2008 to 21 October 2009.
The Arbitrator proceeded to address the allegation of right knee injury and concluded there was insufficient medical evidence to support the suggestion that favouring her left knee had caused symptoms in Ms Benz’s right knee. With respect to the allegation concerning injury following a fall in February 2009, the Arbitrator concluded again that there was insufficient medical evidence to support the contention of there being a causal nexus with the original injury. The Arbitrator noted that there was “no medical evidence that [Ms Benz] was or is incapacitated by a psychological condition”.
The Arbitrator proceeded to determine the quantum of entitlement to weekly compensation and entered the award that appears at [5] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):

“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
It is convenient to deal firstly with Ms Benz’s submission that the Arbitrator has erred in refusing to admit into evidence the two reports of Dr Conrad, dated 9 February 2012 and 21 June 2012. Objection was taken to the tender of those reports by the respondent’s counsel upon the basis that the earlier report had not been served; that it would not be proper to admit but one of Dr Conrad’s reports and exclude the other given their inter-relationship, and, in any event, the admission of those reports in evidence is precluded by the provisions of Regulation 49 of the Workers Compensation Regulation 2010. When objection was taken, counsel also indicated to the Arbitrator that the unserved report of Dr Conrad deals with matters with which the respondent could not deal in the course of the hearing.
As noted earlier, the Arbitrator ruled on the objection taken by counsel and stated his reasons for so doing. The tender of the reports was rejected.
The reasons stated by the Arbitrator include an observation that non service of the earlier report of Dr Conrad raises difficulties concerning Ms Benz’s reliance upon the latter report given that “the two reports appear to be inter-related”. Whilst that question was raised, the Arbitrator had no need to rule on that basis of objection given his stated view that the tender of Dr Conrad’s evidence was precluded by the terms of Regulation 49 which provides:
“49    Restrictions on number of medical reports that can be admitted
(1)     In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)     A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)     Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4)     In this clause:
forensic medical report, in relation to a claim or dispute:
(a)means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
The Arbitrator had earlier admitted the documentary evidence tendered on behalf of Ms Benz including the forensic reports of Dr Davis, a specialist in occupational medicine. Dr Conrad’s speciality is that of general surgeon. The Arbitrator’s ruling concerning the inadmissibility of Dr Conrad’s evidence is to be found at T9 as follows:
“Having canvassed the evidence in this matter and in submissions it seems that the Applicant has been treated by two orthopaedic surgeons and that she has seen a neurologist for the purposes of undergoing nerve conduction studies in relation to a condition of carpel tunnel syndrome.
That would not suggest that the Applicant was entitled to rely upon a doctor in the speciality of Dr Conrad. It does mean the Applicant may be entitled to rely upon that (sic, that of) a neurologist or possibly an orthopaedic surgeon but Dr Conrad does not have those qualifications. And it seems to me that the use of his report is unfortunately prohibited by the regulation.”
Ms Benz’s argument concerning the suggested error is to be found at [9] of submissions where it is put:
“The learned Arbitrator erred in rejecting the report of Dr Conrad dated 28 June 2012. With respect, there was nothing in the report the respondent could not deal with. The report did not raise new issues. In essence it confirmed the views of Dr Davis, the general practitioners and radiologists. Dr Conrad is a general surgeon, Dr Davis is an occupational specialist. The report did not offend Regulation 49 of the Regulations.”
The first observation that must be made is that the submission fails to recognise that the Arbitrator excluded both reports of Dr Conrad. It is also to be noted that no argument is advanced suggesting that, upon an assumption that an error had been made, the Arbitrator’s decision had been relevantly affected by such suggested error. In my view, the argument, such as it is, must be rejected. The sole basis upon which the tender was rejected was that, in the Arbitrator’s view, the Regulation prevented tender of a report or reports of a specialist in occupational medicine given the circumstance that Dr Davis’s forensic report was in evidence. As was observed by the Arbitrator, Ms Benz may have been entitled to rely upon the evidence of a neurologist or possibly an orthopaedic surgeon but that Dr Conrad did not have such qualifications. Ms Benz has failed to establish any relevant error concerning the Arbitrator’s ruling.
I have earlier noted, at [6] above, the shortcomings to be found in the manner of presentation of this appeal. The failure to plainly identify error of which complaint is made and the absence of submissions directed to such error, renders the task of dealing with the complaints as they appear under the heading “Submissions” difficult. It is for that reason I have there at [6] above, attempted to identify the complaints made with more particularity than appears in those submissions.
Before embarking upon the task of dealing with those complaints, it is important to note that the Arbitrator made a specific finding that the evidence of Ms Benz was unreliable. The Arbitrator’s reasons for that conclusion are plainly stated. I note that the principal aspect of the evidence which gave rise to the Arbitrator’s conclusion as to reliability, concerned apparent conflict between the evidence of Ms Benz as found in her supplementary statement and matters recorded contemporaneously by those medical practitioners consulted by her during the period before commencement of employment with the respondent. The failure to identify and acknowledge that finding, represents a fundamental deficiency in the arguments as advanced. Those submissions are also deficient in my view, having regard to the absence of any attention directed to the specific finding made by the Arbitrator that Ms Benz had failed to prove injury to her upper limbs whilst in the course of her employment with the respondent. The submissions merely place reliance upon certain aspects of the evidence and include suggestions that error was committed by the Arbitrator in preferring one expert’s evidence to that of another. Such an argument falls very much short of the requirements concerning the establishment of error of fact as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505. To succeed on appeal it must be shown that the Arbitrator was wrong. Such error may be established by showing that as stated by the Chief Justice (at 506):
“material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The first argument advanced suggests that the Arbitrator has erred in “not giving any consideration or any weight” to evidence which, it is asserted, was “un-contradicted”. The argument includes a summary of particular evidence concerning the nature of Ms Benz’s duties with the respondent; that Ms Benz was “completely symptom free” in her knees “up until the frank injury to the left knee [in 2008]”; that Ms Benz was symptom free in her arms as at 1 November 2001, the date of commencement of her employment with the respondent; that following the knee injury, Ms Benz had two further falls caused by the injured knee giving way; there was no suggestion in the medical evidence that Ms Benz had any pathology or complained of any symptoms in her knees before May 2008, and that as at 1 November 2008 Ms Benz had painful symptoms in her right knee caused by her favouring the left knee.
As noted earlier, the difficulty with the argument as advanced is that there is no identification of the suggested error. However, it is reasonably clear that the complaint concerns the Arbitrator’s factual findings including that made at [73] of Reasons as follows:
“On the basis of the medical evidence before the Commission, I am not satisfied that the applicant has established that she suffered injury to her arms in the course of employment with the respondent or, if she did suffer injury, that the employment was a substantial contributing factor to the injury. In reaching this conclusion, I have borne in mind that carpal tunnel syndrome is a disease process and that the applicant can succeed on her claim by establishing that her work aggravated, exacerbated or accelerated this condition and was a substantial contributing factor to the aggravation or exacerbation or acceleration. I am not satisfied that the medical evidence establishes these matters on the balance of probabilities.”
The Arbitrator’s conclusion concerning alleged injury to the upper limbs was reached following a determination by him that Ms Benz “was not an entirely reliable witness” (at [62] of Reasons) and that resolution of the contested issues required examination of contemporaneous records.
The Arbitrator’s finding concerning reliability of Ms Benz’s evidence was made having regard to the stark contrast between her assertions concerning the condition of her upper limbs at the date she commenced work with the respondent and that which appear in the reports of Dr Bodel and Dr Dixon in reports prepared in the year 2000. The Arbitrator, properly in my view, also took into account the effluxion of time since her return to work and its likely affect upon her recollection. His conclusion that he should look to the medical histories and the contemporaneous records, and his finding that such were “likely to be more reliable than the evidence of [Ms Benz]” (at [62] of Reasons) were open to him on the evidence and no error is demonstrated.
The evidence considered by the Arbitrator concerning the alleged upper limb injury included, contrary to submissions on this appeal, Ms Benz’s “comprehensive description of the nature of her work for the respondent”( as noted at [16] of Reasons). The contemporary medical evidence concerning the history of Ms Benz’s upper limb condition is summarised between [65] and [72] of his Reasons. That evidence, in my view, permitted the finding made by the Arbitrator at [73] concerning the alleged upper limb injury, and no error is demonstrated.
The balance of the submissions, leaving aside the complaint concerning rejection of Dr Conrad’s evidence addressed earlier, appear to challenge the Arbitrator’s conclusions concerning the nature of the injury to the left knee and its consequences.
Injury to the left knee in May 2008 was not in issue. The occurrence of that injury was, as found by the Arbitrator, to some extent coroborated by the evidence of Mr Benz. The Arbitrator accepted that it seemed “plausible that in continuing to work in what was moderately repetitive work up to 3 October 2008, [Ms Benz] may have exacerbated the condition of the left knee” (at [77] of Reasons). The nature of the injury was found to be aggravation of the osteoarthritic condition of her left knee.

The Arbitrator’s findings were made following acceptance of the opinion of Dr Smith. That evidence and the evidence of the other medical experts including Dr Davis was carefully considered by the Arbitrator. He expressed his preference for the views of Dr Smith and stated his reasons for so doing (at [79–81] of Reasons). There was evidence in June 2008 of early arthritic change in the left knee in Dr Smith’s opinion. He had seen the MRI investigation arranged by Dr Dixon. The argument that Dr Smith’s evidence is “internally inconsistent” must be rejected. Dr Smith accepted the probability that there had been an exacerbation of her knee condition in May 2008. He was of the opinion that it was more likely than not that such exacerbation had settled as at the date of his examination dated 21 October 2009. That evidence permitted the finding made concerning the duration of incapacity made by the Arbitrator which was also criticised in submissions. Such finding demonstrates no error.
Insofar as Ms Benz pressed her allegation concerning right knee disability, such allegation was rejected by the Arbitrator given the insufficiency of the evidence (at [83] of Reasons). The apparent allegation that Ms Benz’s arms and knees were made worse by a fall which occurred on 28 February 2009 was, likewise, rejected upon the basis of there being insufficient medical evidence to support that contention. The Arbitrator’s findings with respect to these matters is not the subject of any clear argument advanced on behalf of Ms Benz. The Arbitrator’s conclusions were open to him on the evidence and, insofar as criticism of those findings may be discerned in the submissions, such arguments must be rejected.
It may be seen that I am of the view that Ms Benz has failed to establish any relevant error on the part of the Arbitrator. The appeal should be dismissed. Appropriate orders appear below.

DECISION

The orders, direction and certification found in Certificate of Determination dated 19 October 2012 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Deputy President
13 February 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE