Bi-Lo Pty Ltd v Brown - [2013] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66
APPELLANT:	Bi-Lo Pty Ltd
RESPONDENT:	Michelle Ellen Brown
INSURER:	Self-insured
FILE NUMBER:	A1-12578/12
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	27 August 2013
DATE OF APPEAL DECISION:	27 November 2013
SUBJECT MATTER OF DECISION:	Effect of complying agreement made under s 66A of the Workers Compensation Act 1987; whether complying agreement created an issue estoppel; aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; assessment of expert evidence in the Commission; application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; need for corroboration; application of principles in Chanaa v Zarour [2011] NSWCA 199
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Michael Evers & Co
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 27 August 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal raises two main issues.
First, the effect of a complying agreement, in which it was agreed that the worker suffered a four per cent whole person impairment as a result of an injury to her right upper extremity, and whether that agreement created an estoppel that prevented the worker from claiming lump sum compensation for injuries to other body parts.
Second, if no estoppel arose from the complying agreement, whether the worker suffered aggravation injuries to several body parts, due to her strenuous and repetitive duties with the employer, in circumstances where it was conceded that she had made no contemporaneous complaint of symptoms in those parts of her body to several medical practitioners.

BACKGROUND

Apart from breaks to have her five children, the respondent worker, Michelle Brown, has worked as a meat packer for the appellant employer, Bi-Lo Pty Ltd (Bi-Lo) (and its various predecessors in title), from about 1978 until mid-2010. Her last period of employment commenced at Bi-Lo’s store at Elermore Vale in 2006. Her duties were strenuous and involved constant repetitive wrapping, packing, bending, reaching, and pushing trolleys.
Ms Brown’s case was that she injured her cervical spine, right shoulder, right arm, left elbow, lumbar spine, right hip, left shoulder, and suffered a psychological injury due to repetitive bending, carrying, lifting, pulling, pushing and twisting associated with her duties at Bi-Lo. Essentially, her case was that she had suffered an aggravation, acceleration, exacerbation or deterioration of a disease to which her employment was a substantial contributing factor (ss 4(b)(ii) and 9A of the Workers Compensation Act 1987).
Ms Brown noticed pain in her right wrist in about September 2008 and, as those symptoms progressed, she was given light duties in or about November of that year. She had surgery on her right wrist on 16 June 2009, performed by Dr Myers, a specialist hand surgeon. She said that, prior to stopping work for the surgery, she regularly had pain in her neck, shoulders and back at work while bending, carrying trays, lifting or packing, and pushing trolleys. Though she had low back pain after bending and lifting at work in 2006, which eventually settled, she suffered other episodes of pain at various times afterwards. She agreed that she did not report “those injuries”, or receive medical treatment for them or take time off work because of them.
In about April 2010, Ms Brown returned to work on restricted duties for three days per week, two hours per day as part of a return to work program. While doing these duties, she noticed neck, back and right arm pain. At the end of the program, she said that she “broke down mentally and physically”.
Ms Brown has brought two separate proceedings in the Commission. In the first proceedings, filed on 20 April 2012 (matter no. 3752/12), she initially claimed lump sum compensation for an 18 per cent impairment of her cervical spine and a five per cent impairment of her lumbar spine. This claim was subsequently amended to add a claim for lump sum compensation for a four per cent whole person impairment due to injury to the right upper extremity.

The parties settled the first proceedings on 14 August 2012. The Commission issued a Certificate of Determination – Consent Orders (the consent orders) on that day in the following terms:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:
1.That the name of the Respondent be amended to Bi-Lo Pty Ltd.
2.That the Applicant has leave to amend the Application to Resolve a Dispute at Part 5.6 to include a claim for lump sum compensation in respect of injury to the right upper extremity.
3.That the proceedings be discontinued and any requirement to file any further notice to effect the discontinuance is waived.
4.That the Respondent pay the Applicant’s costs agreed at $4000 plus GST plus disbursements.
It is noted that the parties have reached the following agreement which does not represent a determination of the Commission:
1. That they will enter into a complying agreement reflecting the agreement reached that the Respondent will pay the Applicant lump sum compensation under section 66 of the Workers Compensation Act 1987 in respect of 4% whole person impairment in the sum of $5,500 based on the assessment of Dr Fearnside dated 28 February 2011.”
On the same day, the Ms Brown signed a complying agreement under s 66A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provided for the payment of $5,500 for “4% WPI for [the] right upper extremity”.
The reference to Dr Fearnside’s report of 28 February 2011 in the notation in the consent orders was a reference to a report prepared by Dr Fearnside, a neurological surgeon qualified by Bi-Lo. He took a history that, in about September 2008, Ms Brown experienced sharp pain intermittently in her right forearm related to her job packing and wrapping meat. Her symptoms did not improve and she underwent the surgery referred to above.
Dr Fearnside recorded that, two or three months after the surgery, Ms Brown experienced a gradual onset of low back and right hip pain. In addition, since his first examination on 22 February 2010, she had developed chronic aching in her neck with dorsal scapular pain. She could not recall when her neck pain commenced but was sure it commenced after her arm symptoms were noted.
Dr Fearnside assessed Ms Brown to have a four per cent whole person impairment because of the injury to her right wrist, which he diagnosed as De Quervain’s tenosynovitis, but did not consider that “the symptoms referable to her neck and low back are causally related to her employment with Coles (Bi-Lo)”.
On 17 October 2012, Ms Brown filed a second set of proceedings in the Commission (matter no. 12578/12) in which she alleged the same injuries, caused by the same activities, and claimed the same compensation as she claimed in the first proceedings. At the conciliation and arbitration on 25 June 2013, the Application was amended to delete the alleged injury to the right arm, which had been settled in the first proceedings.
Bi-Lo disputed that Ms Brown had suffered injury to the body parts alleged (apart from the right arm) and, if Ms Brown suffered any of the alleged injuries, it disputed that employment was a substantial contributing factor to those injuries.
In addition, Bi-Lo alleged that Ms Brown had lodged a previous claim on 20 December 2010 that had been resolved in a complying agreement dated 17 August 2012 and that she was estopped from “bringing proceedings in respect of the claim which has resolved”. (I have assumed that these dates referred to first proceedings filed on 20 April 2012 and the complying agreement signed on 14 August 2012.)
After giving leave for Ms Brown to be cross-examined, and hearing lengthy submissions from the parties, the Arbitrator delivered a reserved decision on 27 August 2013 in which he found in favour of Ms Brown on most issues. He rejected the estoppel argument on the ground that there was no award in favour of Bi-Lo in the first proceedings and that the reference to Dr Fearnside’s assessment was an agreement about the right arm and “nothing more” ([13]).
The Arbitrator found that Ms Brown had suffered an aggravation, acceleration, exacerbation or deterioration of an underlying degenerative condition in her lumbar spine, cervical spine, right shoulder and left shoulder in the course of her employment with Bi-Lo from approximately 2004 to December 2011, with a deemed date of injury of 6 November 2008, but found in favour of Bi-Lo in respect to the alleged injuries to her left arm and right hip.
The Commission issued a Certificate of Determination on 27 August 2013 in the following terms:
“The determination of the Commission in this matter is as follows:
1.       That the Commission finds the applicant received injury being the aggravation, acceleration, exacerbation or deterioration of an underlying degenerative condition in the lumbar spine; cervical spine; right shoulder; and left shoulder in the course of the employment with the respondent from approximately 2004 to December 2011. The deemed date of injury is 6 November 2008.
2.       Award in favour of the respondent in respect of the allegations of injury to the left arm and right hip.
3. That in respect of the injuries found the respondent pay the applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
4. That the claims for section 66 of the Workers Compensation Act 1987 lump sums in respect of injury to the lumbar spine; cervical spine; left upper extremity; and right upper extremity on 6 November 2008 (deemed) are remitted to the Registrar for referral to an Approved Medical Specialist.
5.       The documents annexed to the Application to Resolve a Dispute and to the Reply are admitted in evidence before the Approved Medical Specialist, together with:
(a)Reports of Dr Bodel 2 November 2012; 1 May 2013; and 9 May 2013;
(b)Worker’s injury claim form 6 November 2012 with attachment;
(c)Notice issued under section 74 of the 1998 Act 21 December 2012;
(d)Report of Dr Powell 5 December 2012;
(e)Reports of Dr Osborne 22 October 2012; 7 November 2012.
6. No order as to costs pursuant to Schedule 6, Clause 9 (1) of the Workers Compensation Regulation 2010, in respect of previous proceedings within 12 months.
A brief statement of reasons for determination, in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2010, is attached.”
Bi-Lo has appealed the Arbitrator’s determination. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to determine that Ms Brown was prevented from pursuing a claim for injury to the neck and back (estoppel), and
(b) finding that for there to be an injury it was sufficient that there be a complaint of symptomology, when symptomology was not referred to the employment of Ms Brown (injury).

ESTOPPEL

The Arbitrator’s reasons

The Arbitrator said (at [11]) that Kaibau v Gillespie’s Produce and Packing Pty Ltd [2006] NSWWCCPD 168 (Kaibau), an authority relied on by Bi-Lo’s counsel, Mr Edwards, made it clear that an issue estoppel is established only when there is a clear finding or determination or agreement as to the subject issues.
The Arbitrator did not accept Mr Edwards’ submission that the words in the notation in the consent orders, “based on the assessment of Dr Fearnside”, implied that Ms Brown conceded that there was no work injury to the other body parts. He noted there had been no award for Bi-Lo for the other body parts in the consent orders. Rather, Ms Brown discontinued those proceedings, which suggested that the rights claimed were preserved for another day.
The reference to Dr Fearnside’s assessment was a reference to an agreement about the right arm and nothing more. It fell well short of an explicit outcome creating an issue estoppel. As with Mr Kaibau, “there was no hearing, no determination of the ‘issues’ and no admissions or agreed facts” (Kaibau at [71], quoted by the Arbitrator at [13])
For these reasons, the Arbitrator found that no issue estoppel arose in Ms Brown’s matter.

Submissions

Though counsel represented Bi-Lo at the arbitration, a solicitor, Ms Walsh, has prepared its submissions on appeal. Ms Walsh submitted that consent orders “evidenced an agreement between the parties that resolved the dispute before the Commission pleaded in the Application then before it”. The dispute (in the first proceedings) was as to injury and the whole person impairment resulting from injury. The parties agreed, so it was argued, to answer both questions by adopting the assessment made by Dr Fearnside in his report of 28 February 2011.
Dr Fearnside’s report was accepted by the parties as the basis for the whole person impairment compensable as the result of Ms Brown’s injuries suffered or occasioned by the incident pleaded in the first proceedings and the four per cent impairment “cannot be divorced from the manner in which Dr Fearnside made the assessment and the opinions and findings upon which the assessment was made”.
Ms Brown must have conceded, by inference, the opinions of Dr Fearnside, namely, that the neck and low back injuries were not causally related to her employment. Her “agreement and concession inferred from the agreement must be an admission that is capable of creating an issue estoppel”. The agreement reflects, “an admission by [Ms Brown] that the compensable injuries relevant for her employment with [Bi-Lo] were those as found by Dr Fearnside in his report of 28 February 2011”.
This proposition was said to be founded upon the following:
(a)     the amendment of the Application to Resolve a Dispute in the first proceedings to include an injury to the right upper extremity;
(b)     the agreement contained the specific reference to the assessment of Dr Fearnside as opposed to an agreement simply for a specific lump sum, and
(c)     the reason for including the assessment of Dr Fearnside was to properly formulate how the parties reached the agreement as to four per cent.
It was argued that the Arbitrator failed to deal with or determine the proposition that the complying agreement operated as an admission against Ms Brown and provided no reasoning why Ms Brown made no admissions in agreeing to the assessment of Dr Fearnside.
Though counsel represented Ms Brown at the arbitration, her solicitor, Mr Evers, has prepared the submissions on her behalf on appeal. He submitted that the Arbitrator correctly determined that agreement to discontinue the first proceedings, and to enter a complying agreement based on Dr Fearnside’s opinion, decided no issues other than the degree of whole person impairment that resulted from the injury to the right upper extremity.

Discussion

I do not accept Ms Walsh’s submissions.
While it is accepted that orders made by consent may create estoppels between parties, they do so “only as to those matters which are necessarily decided” (McColl AJ (Giles and Campbell JJA agreeing) at [73] in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 citing Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 at 75). In determining what matters have been “necessarily decided”, it is necessary to examine the available evidence.
In the present case, the consent orders made no orders and determined no issues. They merely noted certain amendments and that the parties would enter a complying agreement reflecting the agreement that Bi-Lo would pay Ms Brown lump sum compensation under s 66 in respect of a four per cent whole person impairment “based on the assessment of Dr Fearnside dated 28 February 2011”. The consent orders reproduced the parties’ “Heads of Agreement” prepared and signed on 14 August 2012. They determined no rights or issues and said nothing about Ms Brown’s alleged injuries to her neck, back and shoulders. An agreement that is noted by a court, but does not result in a court order being made that gives the court’s authority to the agreement does not result in a res judicata (Campbell JA (McColl JA agreeing) in Beck v Weinstock;Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289 at [63]).
The case must therefore be determined by reference to the complying agreement. While there may well be circumstances where a complying agreement creates an estoppel (CSR Ltd v Gonzales [2010] NSWWCCPD 118 (Gonzales) at [81]), neither the facts nor the result in that case assist Bi-Lo. Mr Gonzales was estopped from claiming additional lump sum compensation because of the combined effect of a complying agreement and signed admissions and agreed facts. There are no admissions or agreed facts in the present case and, in particular, no orders based on such admissions. Nothing in Gonzales supports Ms Walsh’s submissions.
A complying agreement must be construed according to the usual principles of contract law. It is not the parties’ subjective beliefs or understandings about their rights and liabilities that govern their contractual relations. The meaning of the terms of a contract is determined by what a reasonable person would have understood them to mean (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40]). That is, the test to determine the meaning of a contract is objective, not subjective.
The complying agreement starts with the following general statement about the application:
“The Applicant (worker) and the Respondent (Coles Group Limited – NSW Injury Services) have reached agreement in relation to compensation payable pursuant to Section 66 and/or Section 67 of the Workers Compensation Act 1987 (NSW). The agreement as to the amount of compensation and as to percentage loss are set out hereunder. Interest will not be payable until 21 days after the agreement is received, completed Medicare Australia Notice of Settlement or Centrelink clearance is received (whichever is the later).”
The agreement identified the medical report relied upon “to assess the degree of permanent impairment” to be the report from Dr Fearnside dated 28 February 2011. The agreement then set out the details of Ms Brown, Bi-Lo, and the insurer. Under “Agreement Details” the date of injury, date of claim and the nature of Ms Brown’s duties at the time of injury are recorded.
Under “Particulars of this Agreement” the following appears:
“4% WPI for right upper extremity (being right elbow UEI 1% and right radial nerve UEI 5%)
Total $5,500
Date of agreement: 14 August 2012.”

The only possible estoppel the complying agreement might support is an estoppel to prevent the parties from denying that, as at 14 August 2012, Ms Brown suffered a four per cent whole person impairment as a result of injury to her right upper extremity sustained in the course of her employment with Bi-Lo.
The suggestion that the parties agreed to resolve the dispute about injury to Ms Brown’s neck, back and shoulders “by adopting the assessment by Dr Fearnside” is untenable. While that may have been Bi-Lo’s subjective intention, there is nothing in the complying agreement, or the surrounding circumstances, that supports that conclusion.
If parties settle a case on the basis that the worker is to give up his or her rights with respect to certain alleged injuries, one would expect that, at a minimum, there would be some order to that effect, supported by admissions and/or agreed facts. There are no such orders in the present case and it is not open to draw the inference suggested by Ms Walsh.
On any objective view of the evidence, the complying agreement resolved only the claim for the right upper extremity and nothing else. In the absence of any admissions and agreed facts, or any orders based on admissions and agreed facts, the agreement determined no more than Ms Brown’s entitlement to lump sum compensation for the injury to her right upper extremity.
The amendment to the Application in the first proceedings was of no consequence. The amendment was not to “include an injury to the right upper extremity”, as Ms Walsh submitted, but to “include a claim for lump sum compensation in respect of” that injury. The amendment did not delete the claim for lump sum compensation for the lumbar spine or the cervical spine but added a claim for the right upper extremity.
In the circumstances of the present case, the reference to Dr Fearnside’s report in the complying agreement was of limited relevance. The report provided the basis for the four per cent payment for the right upper extremity, but nothing more. The issue of whether a worker has received an injury arising out of or in the course of his or her employment remained for the Commission to determine, based on all relevant evidence. In the absence of the worker acknowledging that she accepted Dr Fearnside’s opinion with regard to her back and neck symptoms, and that she agreed that she had suffered no injury to her back and neck, and an order by the Commission giving effect to that acknowledgment, none of which is present, merely attaching Dr Fearnside’s report carried no weight.
The Arbitrator was therefore correct when he said that the reference to Dr Fearnside’s assessment was an agreement about the right arm, and nothing more, and that it fell well short of an explicit outcome creating an issue estoppel, or, I would add, an estoppel of any kind.
The Arbitrator was also correct in concluding that Kaibau does not support Bi-Lo’s position. It held that issue estoppel is established only when there is a clear finding or a determination or agreement as to the subject issues. None of those matters applies in Ms Brown’s case.
In Kaibau, it was accepted that consent orders can create estoppels. However, the extent of the estoppel in that case was limited to the specific orders made, which had effect at the date they were made but did not bind the parties into the future. It was expressly noted that there was no “determination” as to why there was an award for the respondent employer in respect of weekly compensation and hospital and medical expenses as at 20 February 2003 and that there was no finding that the worker had recovered from the effects of his injury by that date. In other words, as in Ms Brown’s case, there was no “determination of the ‘issues’”.
The estoppel argument in the present appeal is much weaker because there are no consent orders and the parties must look to the complying agreement. The only issue necessarily decided by the complying agreement was that, as at 14 August 2013, Ms Brown suffered an agreed four per cent whole person impairment as a result of an accepted injury to her right upper extremity. That did not determine whether Ms Brown suffered an injury to her lumbar spine, cervical spine and shoulders.
The complying agreement only resolved the claim for lump sum compensation for Ms Brown’s upper right extremity and nothing more. It follows that the Arbitrator did not err in his approach or conclusion on the estoppel issue.

INJURY

The Arbitrator’s reasons

After setting out certain background matters relating to Ms Brown’s work history, and noting the nature of the dispute, the Arbitrator said (at [18]) that it was common ground that there was no medical record of complaint or reports at work as to the claimed body parts before the operation on 16 June 2009. However, he accepted a submission by counsel for Ms Brown that it was not necessary for there to be contemporaneous complaints for there to be an aggravation of an underlying degenerative condition.
The Arbitrator added (at [18]) that:
“The proper test was enunciated in Rail Services Australia v Dimovski [2004] NSWCA 267 as: ‘the words ‘injury consists in the aggravation…of a disease’ in s 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation.’”
The Arbitrator reviewed the evidence dealing with each of the disputed body parts. With regard to Ms Brown’s back, he said that the evidence from Professor Ghabrial, Ms Brown’s treating orthopaedic and spinal surgeon, was diminished in value because he had an incorrect history of Ms Brown’s back symptoms becoming worse after a fall in September 2008 and, also incorrectly, recorded that she injured her neck in that fall.
Noting (at [26]) that Ms Brown gave her oral evidence “openly and convincingly”, despite her difficulties with memory making her a poor historian, the Arbitrator accepted her evidence as “honest and credible” when she said she had back pain before the operation on the right wrist but it was worsened following the operation because of the way she had to sleep because of her wrist.
The Arbitrator also noted, and clearly accepted, Ms Brown’s oral evidence that her back pain varied from day-to-day “[i]f [she] packed pallet loads of chickens and sausages [her] back hurt” and that she did not complain to doctors about her back, or other body parts, at consultations about her right arm because the focus was on getting the arm “fixed”. On her return to work after the operation on her right arm, she worked very hard to counter being treated like a “bludger”, which caused pain in her shoulders, neck and back, which all got worse.
He did not accept Mr Edwards’ attack on Dr Bodel, Ms Brown’s qualified orthopaedic surgeon, to the effect that the doctor “worked backwards” to make a connection between the pathology and the work, but accepted Dr Bodel’s evidence because of his full history of the heavy nature of the work and of the symptoms worsening after the operation, which opinion “sat best with the reality of Ms Brown being engaged in the same work from the age of 14 years apart from breaks to have her children” ([29]).
Dealing with the neck, the Arbitrator referred to Ms Brown’s evidence that she felt pain at various times in her neck prior to going off for the right arm surgery in June 2009, and her oral evidence in which she described having to pull up plastic wrapping “one hundred times a day”. She did not report her neck pain because she was not a “compo girl – I am a worker and did not want to go on compo”. After reviewing the medical evidence, the Arbitrator accepted Dr Bodel’s opinion on the neck.
Turning to Ms Brown’s shoulder symptoms, the Arbitrator noted (at [37]) her evidence that she had shoulder pain prior to the operation in June 2009, but did not report it, and her description of the mechanism (repetitive wrapping) that brought on the symptoms. He also noted the history by Dr Osborne, Ms Brown’s treating orthopaedic surgeon, in his report of 6 June 2011, of repetitive use of the shoulders at work and the onset of symptoms in the right arm. He also acknowledged Dr Osborne’s history that the symptoms in the shoulders had not been experienced “prior to this onset 2 months ago” (that is, two months prior to seeing Ms Brown on 6 June 2011), which was consistent with a physiotherapy report dated 10 March 2011. The Arbitrator discussed the other medical evidence that dealt with this issue.
He acknowledged that the onset of the more severe symptoms was much later with the neck and back, and that there was some confusion between Ms Brown’s evidence, on the development of the shoulder symptoms, and the history taken by Dr Ferch, the treating neurosurgeon. However, he said (at [42]) that this was consistent with Ms Brown’s “shortcomings in her memory of events over the years” and he inferred that the “distinction is between the occasional pains felt at work with repetitive tasks outlined in her oral evidence, and the appearance of more severe symptoms after the right arm surgery”.
Overall, he preferred the evidence of Dr Bodel as to the connection between the work and the shoulder conditions, because of his full explanation of the connection in the context of the hard physical work. The injury was “in the nature of the aggravation of an underlying degenerative process, with no frank incident of injury” ([43]).
The Arbitrator found against Ms Brown with respect to the claim for the left elbow and right hip and, as these findings have not been challenged, it is not necessary to deal with them.

Submissions

Ms Walsh’s main points may be summarised as follows:
(a)     given that Ms Brown was a poor historian, the Arbitrator ought not have dismissed Mr Edwards’ submissions noted by him at [9] of the decision;
(b)     the Arbitrator ought have been satisfied as to the injury from the contemporaneous material prior to determining whether the opinions of Dr Bodel and Professor Ghabrial were available to make a finding of injury and the Arbitrator erred in that regard at [28], [29], [34], [36], [40], [41] and [45] of his decision;
(c)     the records from Ms Brown’s general practitioner, Dr Raffan, covering the period from 24 August 2005 to 10 November 2008 make no mention of her complaining of any symptoms related to her cervical or lumbar spine;
(d)     the first complaint of any back symptoms was on 24 August 2009, and was clearly non work-related;
(e)     other contemporaneous records either made no reference to neck, back or shoulder symptoms, or made no connection between those symptoms and work;
(f)      the Arbitrator accepted the opinions of Dr Bodel without properly analysing the history that underpinned those opinions;
(g)     when properly analysed, the opinions of Dr Bodel are largely flawed because he accepted Ms Brown’s history when it did not accord with the contemporaneous records;
(h)     none of the complaints and history taken by Dr Bodel in his report of 6 June 2011 can be explained by his proposition that Ms Brown’s ongoing pathology is caused by work and that work is a substantial contributing factor to her ongoing complaints;
(i)      in his report of 3 August 2011, Dr Bodel associated Ms Brown’s symptoms with the nature and conditions of her work in general “without proper description and without a proper link or consideration of the histories taken contemporaneously”;
(j)      in his final report, dated 9 May 2013, Dr Bodel “derives his opinion from the association made by [Ms Brown] and not to [sic] any logical recording of symptoms whether contemporaneously or otherwise, and
(k)     Professor Ghabrial’s opinion in his report of 27 October 2010 was based on a history of back pain for four years that deteriorated since the injury in September 2008. This history was at odds with all of the other medical material relied on by Ms Brown and “must fall away”.
Ms Walsh concluded that the Arbitrator thereby failed to address the appropriate questions and failed to give proper reasons as to why Bi-Lo’s submissions should have been rejected.
Mr Evers submitted that Ms Walsh had simply re-iterated the complaints to the Arbitrator, without appropriate consideration of Ms Brown’s oral evidence and the final opinions of Dr Bodel.
In submissions in reply, Ms Walsh submitted that Ms Brown conceded (at T16.30–43) that her pain “accumulated” after stopping work and that the highest Ms Brown was able to put her claim was at T16.6 where she gave the following evidence in cross-examination:
“Q. at paragraph 17, you suggested that you regularly had pain in your neck, shoulders and back at work when doing the activities that you’ve described but:
I didn’t report the injuries and I didn’t receive medical treatment for it.
That’s the only mention ever of that type of conduct, is that right?
A. Well, that’s how it is.” (emphasis in original)
Ms Walsh said that, in re-examination, and at the prompting of her counsel, Ms Brown “sought to paint a different picture, but such picture is contrary to the contemporaneous records and her previous evidence”.
Ms Walsh submitted that the Arbitrator’s finding was that Ms Brown’s evidence was “unreliable because she was a poor historian”. The Arbitrator was required to determine, from sources other than Ms Brown’s evidence, the complaints made from time to time to determine whether an injury occurred. He was not entitled, so it was argued, to take the “symptomology and retrospectively fit it to [Ms Brown’s] circumstances”.

Discussion

I reject Ms Walsh’s submissions, which have ignored the Arbitrator’s reasons, established authority, and attempted to conduct the appeal as a rehearing without any real attempt to establish error. Essentially, Ms Walsh’s complaints come down to three main issues: first, the lack of contemporaneous complaints of back, neck and shoulder symptoms, second, the Arbitrator’s acceptance of Dr Bodel’s evidence and, last, an alleged failure to address the “appropriate questions” and give “proper” reasons for rejecting Bi-Lo’s submissions.
Before addressing these issues in detail, it is necessary to first deal with the false premise that underlies this ground of appeal. Contrary to Ms Walsh’s submission, the Arbitrator did not find that, for there to be an injury, “it was sufficient that there be a complaint of symptomology” though such symptomology was “not referred to the employment of the worker”. Nor did he take the “symptomology and retrospectively fit it to [Ms Brown’s] circumstances”.
The Arbitrator noted that Ms Brown’s duties as a meat packer involved repetitive wrapping, packing, bending, lifting, carrying and pushing, and that those duties were strenuous. He added that it was clear that her right arm had been the “dominating injury in Ms Brown’s life from September 2008” ([16]) and that Bi-Lo “put Ms Brown’s credit in issue due to apparent discrepancies in the statement and histories taken by the medical practitioners” ([17]). He rejected that attack on Ms Brown’s credit and found her to be a witness of truth who suffered some difficulty in explaining the history and in remembering past events and sequences. Contrary to Ms Walsh’s submission, he did not find that Ms Brown’s evidence was unreliable.
The Arbitrator acknowledged that it was common ground that there was no medical record of complaint or reports at work as to the “claimed body parts” (the back, neck, shoulders, left elbow and right hip) before the wrist surgery on 16 June 2009, but said (at [18]) it was not necessary for there to be contemporaneous complaints for there to be an aggravation of an underlying degenerative condition. That statement was correct. He did not say there was no need for contemporaneous symptoms.
Ms Walsh has based her submissions on the fundamentally wrong assumption that a worker cannot succeed unless contemporaneous records corroborate his or her complaints. The Arbitrator did not have to be “satisfied as to injury from the contemporaneous material prior to determining whether the opinions of Dr Bodel and [Professor] Ghabrial were available to make a finding of injury”.
As explained by Campbell JA (Bathurst CJ and Tobias AJA agreeing) in Chanaa v Zarour [2011] NSWCA 199 at [86] (Chanaa):
(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 a judge is to decide, on the basis of the whole of the evidence (denials and all), what he or she accepts.
It is trite law that, even without corroborating witnesses, a tribunal of fact is free to accept the evidence of a claimant as credible (per Kaye AJA, Tate and Whelan JJA agreeing in Woolworths Ltd v Warfe [2013] VSCA 22 at [151]). The Commission has applied this principle in several decisions (George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62 at [117]; Trustees of the Roman Catholic Church for the Diocese of Parramatta v O’Brien [2012] NSWWCCPD 68 at [100]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [43]; Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65 at [37]; Cowra Jockey Club v Murphy [2013] NSWWCCPD 20 at [138]; Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) [2011] NSWWCCPD 74 at [209]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [43]; Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69 at [83]).
The absence in medical records of complaints by Ms Brown about the relevant body parts prior to 16 June 2009 did not mean that the Arbitrator erred in not rejecting her evidence. It required the Arbitrator to assess her evidence, along with other evidence, to determine its reliability. That meant considering her explanation for the lack of complaint, and the other evidence tendered, especially the evidence about the heavy physical nature of Ms Brown’s duties and the expert evidence.
In considering the lack of contemporary complaints, the Arbitrator accepted Ms Brown’s explanation that she did not complain about her neck, back and shoulders at consultations about her right arm because the focus was on getting her arm “fixed”. The evidence in support of this finding is at T24.19:
“Q. Did you tell - it was suggested to you that you didn’t make any complaints to the doctors that you saw about problems in relation to your neck or your back.
A. Because I was - I wanted my wrist - I was concentrating on getting my wrist fixed.”
Consistent with this evidence, and with the Arbitrator’s finding, Ms Brown gave the following evidence at T16.50:
“Q. See, you went and saw Dr Raffan for many, many occasions and made no complaint about neck or back problems.
A. So what about the ‑‑
Q. Is that correct?
A. Where’s this – where’s all the reports ‑‑
Q. No, no, is that correct or not, madam?
A. Because I was dealing with my right wrist. I was trying to get myself better with that.”
After describing the repetitive nature of her duties, Ms Brown dealt with the lack of contemporaneous complaint of neck pain at T23.10:
“Q. Alright. Now, when you had this neck pain, why didn’t you report it?
A. 'Cause I wasn’t - I don’t want to be what I am today, a compo girl.
Q. What’s a compo girl?
A. Someone that everyone talks about.
Q. What [unclear 0:43:13.9]?
A. Well, because I’m a worker.
Q. Alright.
A. I didn’t want to go up on compo.”
This evidence was consistent with the Arbitrator’s summary, reproduced at [59] above, and was evidence he was entitled to accept and clearly did accept. It was also consistent with the report from Dr Newton-John, clinical psychologist with Innervate Pain Management, dated 1 April 2010, where it was recorded that Ms Brown appeared to have a strong work ethic and was keen to return to work.
Ms Brown’s evidence at T16.30–43, where she agreed that she stopped work because of her right wrist injury and that she found that, since stopping work, she “accumulated pain in [her] right shoulder, left shoulder, neck, back and hip” was merely one part of the evidence. It was not a concession that she had experienced no symptoms while at work and certainly not a concession that she had received no injury. On its own, it carried little probative value. Exactly what the question meant was unclear and never developed in cross-examination or submissions.

The submission that the highest that Ms Brown was able to put her claim was at T16.6 (see [67] above) was incorrect and ignored Ms Brown’s evidence at paragraph [17] of her statement, where she said:
“Prior to me going off work on or about 15 June 2009 I had regular pain in my neck, shoulders and back at work when doing the activities such as bending, carrying trays or product, lifting or packing and pushing trolleys. I did not report those injuries nor did I receive medical treatment for them or take time off work.”
This submission has also ignored the Arbitrator’s finding that Ms Brown’s evidence was “honest and credible”.
The submission that, in re-examination, Ms Brown attempted to “paint a different picture” was incorrect. Ms Brown consistently maintained that she experienced pain in her neck, shoulders and back while performing her usual duties with Bi-Lo. She has also consistently conceded that, initially, she made no contemporaneous complaints about her symptoms.
The Arbitrator concluded after having seen and heard Ms Brown give evidence, that her evidence was “honest and credible”. It was open to him to accept Ms Brown’s explanation for the lack of contemporaneous complaint about the relevant body parts. It has not been argued, nor could it have been argued, that the Arbitrator “failed to use or has palpably misused his advantage” (in seeing and hearing the evidence) or that he acted on evidence which was “inconsistent with facts incontrovertibly established” or “glaringly improbable” (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479, 480-481; Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]- [27]).
While the Arbitrator’s reference to the “proper test” in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 was not erroneous, that case concerned a dispute about whether a discrete injury to a knee could also establish an aggravation injury under s 4(b)(ii) and was not necessarily the most appropriate authority on which to rely. It was in that context that Hodgson JA made the statement attributed to him by the Arbitrator. In fact, his Honour was quoting Sheller and Powell JJA in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606; 17 NSWCC 309.
In the present case, where no discrete injury was alleged, and Ms Brown alleged that she received an aggravation injury caused by the heavy and repetitive duties she did for many years with Bi-Lo, the more appropriate authorities are Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) and Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88 (Cant).
Semlitch establishes that there is an aggravation of a disease if the work has made it “worse in the sense of more grave, more grievous or more serious in its effects upon the patient” (Windeyer J at 639). His Honour had previously observed (at 637) that he found “it impossible to conceive of the malady as distinct from its manifestations”.
In Cant, these statements were accepted to mean that:
“irrespective of whether the [underlying] pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
The Arbitrator referred to Cant in his conclusion and found (at [57]), consistent with that case, and with Semlitch, that Ms Brown’s symptoms had been made worse due to the aggravation of her underlying degenerative (disease) conditions. Thus, he applied the correct test to establish an aggravation injury under s 4(b)(ii). Contrary to Ms Walsh’s submissions, he did not take the view that it was sufficient to constitute an injury if, at some stage, there was an aggravation.
In considering if Ms Brown’s employment was a substantial contributing factor to the injury, the Arbitrator said (at [61]) that the duties involved “strenuous and repetitive physical work” and that there was no evidence of external causes of injury, noting that Ms Brown was relatively sedentary outside work. Though Ms Brown injured her neck in a car accident when she was 17, that accident left no lasting symptoms. These findings were open and disclosed no error.
I do not accept Ms Walsh’s contention that, as Ms Brown was a poor historian, the Arbitrator should not have dismissed Mr Edwards’ submissions. That submission was not developed in any meaningful way and did not establish error by the Arbitrator. As I have already noted, the Arbitrator was required to assess the whole of the evidence. In doing so, he concluded that, though Ms Brown was a poor historian, she was an honest and credible witness whose evidence he accepted. That necessarily involved a rejection of Mr Edwards’ submissions, which were largely based on the incorrect assumption (also made on appeal) that the lack of contemporaneous complaint meant that Ms Brown’s evidence of when her symptoms commenced, and her case in general, including Dr Bodel’s evidence, had to be rejected.
Whether the complaint of back symptoms noted on 24 August 2009 were work related or not was not determinative, and did not establish error by the Arbitrator.
The attack on the Arbitrator’s acceptance of Dr Bodel’s evidence, on the ground that the Arbitrator failed to properly analyse the history underpinning the doctor’s opinions, suffers from the same underlying flaw in Ms Walsh’s approach to this ground of appeal in general. It has assumed that it was not open to the Arbitrator to accept Ms Brown’s evidence as to when her symptoms commenced or to accept Dr Bodel’s evidence as to what caused the increase in her symptoms. As I have already highlighted, this assumption has ignored the Arbitrator’s finding that he accepted Ms Brown’s evidence. It was open to him to do so. Once he accepted that evidence, and explained his reasons for doing so, it is difficult to see what further analysis of the history was required.
The history did not have to accord with contemporaneous records before the opinion based on it could be accepted. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence 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” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [85]; 8 DDCR 399 (Hancock)).
In any event, to the extent that an expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101]–[102]; [105]–[134]). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510 (Paric)).
Dr Bodel’s evidence complied with the principles explained in the above authorities and, given the Arbitrator’s acceptance of Ms Brown’s evidence, he was entitled to accept Dr Bodel’s conclusions.
The Commission has consistently applied the above authorities in dozens of cases and the legal profession’s apparent ignorance of them is astonishing.
The submission that none of the complaints and history taken by Dr Bodel in his report of 6 June 2011 can be explained by his proposition that Ms Brown’s ongoing pathology is caused by work and that work is a substantial contributing factor to her ongoing complaints is difficult to understand and has ignored the proper test for the evaluation of expert evidence, as explained in Hancock. Further, it has ignored Dr Bodel’s other reports.
In assessing a medical expert’s evidence, it is first necessary to consider all of his or her reports. A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence (Hancock at [92]). It is therefore unhelpful, and misleading, to single out one report, as Ms Walsh has done, without considering the others.
In his first report, dated 6 June 2011, Dr Bodel summarised Ms Brown’s injuries as follows:
“(a)   Injury to the left elbow;
(b)     Soft tissue injury to the neck;
(c)     Injury to both shoulders;
(d)     Soft tissue injury to the lower back; and
(e)     Injury to the right hip.”
Dr Bodel took a history that Ms Brown first developed back pain associated with bending and lifting at work in 2006. She had chiropractic treatment and the pain settled. She developed increasing right forearm, wrist and hand pain, which she associated with the nature and conditions of her work in general, which was “fairly repetitive and at times reasonably heavy”. The right wrist and hand symptoms deteriorated in November 2008, while Ms Brown was pushing a heavy trolley, and she collapsed because of the pain.
Dr Bodel noted that Ms Brown stopped work on 15 June 2009 and had surgery on her right wrist on 16 June 2009. He said that “[a]bout a month after that she began to develop increasing head and neck and shoulder girdle pain” and was referred to a pain clinic. She saw Dr Fearnside and had an MRI scan, which showed significant disc pathology at the C6/7 level.
Dr Bodel concluded that Ms Brown’s ongoing pathology had been caused by work and that work was a substantial contributing factor to her ongoing complaints. Considered on its own, Dr Bodel’s first report provided limited support for Ms Brown’s claim. However, the Arbitrator did not rely on this report to support his conclusion, and this was not Dr Bodel’s only report.
In his next report, dated 3 August 2011, and prepared in response to a letter from Ms Brown’s solicitor (which is not in evidence), and without a further examination of Ms Brown, Dr Bodel wrote:
“You will be aware that this lady has worked in retail supermarkets at a number of locations since leaving school.
She reported that her symptoms in all of the injured areas have come on gradually over time in association with the nature and conditions of work in general.
I was unable to identify any particular frank injury which led to the ongoing pathology.
The MRI scan confirms significant disc pathology at C6/7.
In the absence of any frank injury or any event outside of her work the nature and conditions is the cause of her ‘injury’ in a legal sense.
You also indicate that your client is now prepared to go ahead with the surgery as offered by Dr Ferch. That is reasonable and necessary treatment for the ongoing clinical signs of neck pain and brachialgia (radiculopathy) which are seen clinically on testing.” (emphasis included in original)
This report dealt with several important matters omitted from the first report. First, it recorded that, as Ms Brown said in her evidence, her symptoms came on gradually over time in association with the duties she performed with Bi-Lo. Second, and also consistent with Ms Brown’s evidence, she was unable to identify any particular frank injury that led to the ongoing pathology. Third, the MRI scan confirmed significant pathology at C6/7. Last, in the absence of any frank injury, or event outside of her work, the nature and conditions (of her work with Bi-Lo) was the cause of her “injury in a legal sense”.
In his third report, dated 2 November 2012, and prepared after an examination on that day, Dr Bodel repeated the same summary of injuries as in his first report (see [102] above). He recorded that he reviewed Ms Brown’s history and she indicated that it was accurately recorded in his previous report. Her main complaint on 2 November 2012 related to her neck and shoulders. Her back pain was intermittent. Dr Bodel recorded that Ms Brown had attempted to return to work in mid-2011 (presumably this should have been 2010) but lasted only five weeks. Significantly, he recorded that she did some “light duty ticketing and facing up but could not continue because of her deteriorating neck and arm pain” (this history was consistent with Ms Brown’s evidence at T25.10 that her symptoms got worse when she returned on light duties). There had been no additional accidents or injuries since his last report.
The history of Ms Brown being unable to continue her light duties, because of deteriorating neck and arm pain, provided a compelling history of Ms Brown’s condition having been aggravated, in the sense of it being made “more grave, more grievous or more serious in its effects upon” her, and provides strong support for the Arbitrator’s findings.
Under “Current Complaints”, Dr Bodel recorded that Ms Brown complained of neck pain, with the head down posture and use of arms overhead aggravating the pain, pain in both shoulders, the right worse than the left, with any attempt to push or lift or use the arms overhead aggravating the pain, and left arm brachialgia with diminished triceps reflex. She could no longer garden and she had no regular sports or hobbies.
Commenting on relevant documentation, Dr Bodel said that the local doctor’s notes were consistent with Ms Brown’s clinical presentation, as was the workplace assessment report. He added that Ms Brown’s statement of 12 April 2012 (which is in evidence) was consistent “with her clinical statement”. He was also aware of Dr Fearnside’s report, in which Dr Fearnside said that, based on the delay in the time of the onset of symptoms in the neck (a month or six weeks after the right wrist operation, which was the same history Dr Bodel received), he did not consider Ms Brown’s symptoms in her neck and back were causally related to her employment with Bi-Lo.
After referring to the matters in the preceding paragraph, Dr Bodel said:
“The nature and conditions of this lady’s work however in my view is the aggravating, accelerating, exacerbating and deteriorating factor which has led to the onset of the symptoms in this lady’s neck. The disc pathology is unlikely to have been caused by [a] ‘frank injury’ at Bi-Lo as there is no history of any such event. The pathology is quite definite however, and her symptoms are quite clear with some signs of possible nerve root irritability in the left upper limb. The nature and conditions of work therefore is an aggravating factor as there is no other history of injury outside of work which could have led to the symptoms that she refers to.” (emphasis included in original)
In response to a specific question on causation, Dr Bodel added that the cervical disc pathology had not been caused by work in the form of a frank injury causing a disc prolapse. It was a degenerative process that appeared, clinically, to have been aggravated, accelerated, exacerbated and deteriorated by the nature and conditions of (Ms Brown’s) work in general. That type of work could cause an aggravation to the underlying pathology.
Dr Bodel said that the lumbar disc pathology on the CT scan was not caused by work but it “can be aggravated, exacerbated, accelerated and deteriorated by the nature and conditions of work in general for the same reasons as outlined in the answer about the cervical spine”. He said that Ms Brown’s shoulder symptoms were an aggravation of an underlying constitutional ailment.
In his fourth report, dated 1 May 2013, and prepared after a further examination of Ms Brown, Dr Bodel set out the same injuries and substantially the same history as previously recorded. After reviewing additional documents, he said that Ms Brown had developed widespread pain in the neck and both upper limbs which she associated with the nature and conditions of her work in general, which she commenced in her late teens. He added:
“This lady’s work over many years could have caused an aggravation, acceleration, exacerbation and deterioration of the underlying rotator cuff pathology in both shoulders and I accept that aggravation, acceleration, exacerbation and deterioration is ongoing and therefore the treatment as outlined by Dr Osborn [sic] [surgical decompression of the shoulders] is likely to be of benefit.
In regard to the neck there does appear to have been some clinical improvement in this lady’s signs of pathology. The brachialgia in the left upper limb is not as evident as [it] has been previously. She still has some asymmetry of neck movement and clearly does have disc pathology at the C6/7 level but there is no objective sign of nerve root involvement at this time and therefore surgery on the neck is less imperative.
This lady’s complaints are genuine. She does have pathology in the neck and the shoulder and she has had the [sic] poor outcome from the surgery on the right wrist but further medical management is difficult. It would be prudent in my view to consider the surgery for the shoulders but I would be reluctant to consider surgery on the neck or any further elbow, back or hip interventions at this time.
Overall this lady has a guarded prognosis because of the totality of her pathology.”
In his last report, dated 9 May 2013, prepared in response to a letter from Ms Brown’s solicitor, but without a further examination of Ms Brown, Dr Bodel explained that he accepted there was a causal link between the nature and conditions of Ms Brown’s work and the aggravation, acceleration, exacerbation and deterioration of the rotator cuff pathology in her shoulders and there was therefore a causal link between her work in general, and that aggravation, leading to the need for the surgery proposed by Dr Osborne.
Dealing with whether Ms Brown’s work caused an aggravation, acceleration, exacerbation or deterioration of a degenerative disease in Ms Brown’s neck, lower back and right hip, Dr Bodel said:
“Using the same analysis, this lady is known to have disc pathology in the cervical spine, the lumbar spine and rotator cuff pathology in both shoulders and the nature and conditions of work in general as a shop assistant has caused an aggravation, acceleration, exacerbation and deterioration in the ‘neck and lower back’. I am less certain about the right hip as I have not seen an x-ray of that area to confirm some pre-existing pathology that could be ‘aggravated’.” (emphasis included in original)
In response to the following question:
“On the balance of probabilities, was work a consequential injury, a substantial/main contributing factor in the cause [of the] aggravation, acceleration or exacerbation of [Ms Brown’s] degenerative disease in the neck, lower back, right hip, right upper extremity and left upper extremity?”
Dr Bodel replied:
“Work is the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of the neck, the lower back, right upper extremity and left upper extremity on the basis of the assessment when I most recently examined this lady on 01 May 2013. I am uncertain as to the causal link in regard to the right hip as I have not seen any x-ray of that region.”
When Dr Bodel’s reports are read together it is apparent, as the Arbitrator observed; that he had a detailed history of the strenuous nature of Ms Brown’s duties; that she had developed symptoms in the relevant body parts while doing those duties (and that those symptoms increased while doing light duties); that there were no other potential aggravating factors outside her work; that he had examined Ms Brown, and that he had information from x-rays and other tests.
It is therefore clear that, consistent with Hancock, Dr Bodel based his opinion on the facts observed, the assumed facts (including those garnered from Ms Brown that her work was repetitive and strenuous and caused her pain), and information in the radiological investigations performed. This provided a sound basis for his opinion and the Arbitrator made no error in accepting that opinion.

The submission that, in his report of 3 August 2011, Dr Bodel associated Ms Brown’s symptoms with the nature and conditions of her work “without proper description and without a proper link or consideration of the histories taken contemporaneously” is flawed for the reasons explained above. It wrongly assumed that the history had to accord with the “histories taken contemporaneously”. It did not.
Dr Bodel’s history only had to provide a fair climate for the acceptance of his opinion (Paric). Once the Arbitrator accepted Ms Brown’s evidence as to the commencement of her symptoms, Dr Bodel’s history provided a sound basis for the acceptance of his opinion. In addition, the report of 3 August 2011 had to be read with all of the other evidence tendered, not in isolation.
The criticism of Dr Bodel’s final report is similarly unsustainable. It has wrongly looked at that report in isolation and assumed, without considering the other reports, or Ms Brown’s evidence, that Dr Bodel derived his opinion (only) from the association made by Ms Brown and not from “any logical recording of symptoms whether contemporaneously or otherwise”. Dr Bodel was entitled to take into account Ms Brown’s history and did so. As explained above, his opinion was based on the facts observed, assumed facts, and information in the x-rays and other investigations.
The submission that Professor Ghabrial’s evidence “must fall away” has ignored the Arbitrator’s finding that the Professor’s history relating to the increase in right arm symptoms in September 2008, which event he recorded as a fall in which Ms Brown injured her neck, was not correct and that that “diminishe[d] the value of [Professor] Ghabrial’s opinion on the back and neck” ([21]). The Arbitrator added (at [32]) that Professor Ghabrial’s incorrect history meant that his opinion was “of less probative value”. Given these comments, and given the Arbitrator’s acceptance of Dr Bodel’s evidence, it is tolerably clear that he did not base his conclusion on Professor Ghabrial’s evidence. It follows that Ms Walsh’s complaint about Professor Ghabrial’s evidence is irrelevant. The Arbitrator did not rely on it, but discounted it, though for different reasons to those advanced by Ms Walsh.
The submission that the Arbitrator failed to address the appropriate questions was not developed with any reasoned argument. It was, I assume, based on the earlier submissions relating to the contemporaneous histories, which I have dealt with earlier in this decision. The Arbitrator was well aware that injury was disputed, and that Ms Brown’s credit was under attack because of the accepted lack of contemporaneous complaints. However, as previously explained in this decision, the Arbitrator dealt with that issue by looking at Ms Brown’s reasons for the lack of any contemporaneous complaint and accepted her explanation. It was open to him to do so.
I do not accept that the Arbitrator failed to give proper reasons as to why Bi-Lo’s submissions should have been rejected. The Arbitrator rejected the attack on Ms Brown’s credit because he accepted her as an “honest and credible” witness. He also explained that he accepted her oral evidence as to the strenuous nature of her duties and that that work caused an increase in pain in her neck, back and shoulders.
The Arbitrator rejected Mr Edwards’ criticisms of Dr Bodel’s evidence because Dr Bodel had a full history of the heavy nature of the work, and of Ms Brown’s symptoms worsening, and Dr Bodel gave a full explanation of the relationship between the nature of Ms Brown’s work and the aggravation injury. It follows that the Arbitrator clearly explained the basis for his conclusions and discharged his obligation to give reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

CONCLUSION

This appeal was without merit and amounted to no more than an attempt to conduct a rehearing with little effort to establish error by the Arbitrator. Ms Walsh’s submissions ignored long-standing and binding authorities dealing with expert evidence in the Commission and ignored critical parts of the evidence and the Arbitrator’s findings.

DECISION

The Arbitrator’s determination of 27 August 2013 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

27 November 2013

I, KATHRYN CAMP, 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