Boniki Pty Ltd v Bevan - [2013] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Boniki Pty Ltd v Bevan [2013] NSWWCCPD 48
APPELLANT:	Boniki Pty Ltd
RESPONDENT:	Brooke Bevan
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-7307/12
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:	28 June 2013
DATE OF APPEAL DECISION:	24 September 2013
SUBJECT MATTER OF DECISION:	Challenge to factual findings; fact finder’s determination of weight to be ascribed to expert evidence
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	G L Jankov Solicitors
ORDERS MADE ON APPEAL:	1. The findings of the Arbitrator and those orders made in Certificate of Determination dated 28 June 2013 are confirmed. 2. The appellant is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Ms Brooke Bevan commenced employment with Boniki Pty Ltd (the appellant) as an apprentice hairdresser in April 2007. Ms Bevan had earlier been employed as an apprentice with a different employer. That earlier apprenticeship came to an end when, notwithstanding the provisions of the Apprenticeship and Traineeship Act 2001, her employment was terminated after a short absence from work following injuries received by her in a motor vehicle accident which had occurred on 30 March 2007.
In December 2007, following a busy period of work, Ms Bevan experienced pain in both wrists and sought treatment from Dr Nguyen, her general practitioner. Ms Bevan continued working and was required to work quickly during many long shifts. The pain in her right wrist extended to her forearm and elbow, and pain was experienced in her neck. Dr Nguyen arranged for her referral to Dr David Manohar, consultant physician, whom she first consulted on 8 January 2008. The painful symptoms continued and she had been referred to a number of other specialists including Dr Tim Heath, hand surgeon, Dr Tram Anh Bui, medical rehabilitation specialist, Dr Chandra Dave, orthopaedic surgeon, and Dr Ian Gotis-Graham, rheumatologist and consultant physician.
It seems that Ms Bevan was incapacitated for work during 2008 and that, for a period from a date in August 2008, she was engaged by the appellant performing selected duties. By reason of painful symptoms Ms Bevan was unable to continue that work. Ms Bevan had completed her hairdressing TAFE course in December 2007. Whilst the evidence is unclear, it seems that Ms Bevan completed the practical component of her training with the appellant in February 2009. Between August and December 2009, Ms Bevan obtained employment with another hairdresser performing administrative duties, answering telephones, taking bookings, greeting clients and doing banking. Ms Bevan ceased that employment by reason of her reaction to medication that had been prescribed by her general practitioner. Ms Bevan has attempted retraining, but has not returned to employment since that time. The painful symptoms have continued. Since early 2011 she has experienced pain in her left shoulder as well as those symptoms experienced in her neck and right upper limb.
In September 2011, a claim was made by Ms Bevan against her employer in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The appellant’s insurer in December 2011 gave Ms Bevan notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that liability was declined concerning her claim in respect of permanent impairment arising from injury to her cervical spine and left upper extremity. That notice included a settlement offer in respect of her claim for whole person impairment founded upon injury to her right upper extremity.
The offer made by the appellant was not accepted by Ms Bevan and the dispute concerning her entitlement to lump sums was the subject of an Application registered with the Commission in July 2012. That Application came before Arbitrator Craig Tanner for conciliation/arbitration on 29 April 2013. The appellant did not dispute that Ms Bevan had received an injury to her right upper extremity arising out of or in the course of her employment. It denied the allegation made concerning injury to the neck and the left upper extremity. At the conclusion of the hearing, the Arbitrator reserved his decision and a Certificate of Determination, accompanied by a statement of reasons, was issued on 28 June 2013. The Arbitrator found that Ms Bevan had established that she had suffered a consequential condition to her left shoulder by reason of the need for “excessive use of her left arm to spare the right [arm]”. A finding was also made that Ms Bevan had received an injury to her neck in the course of her employment. The following orders were made:
“(1)   The dispute as to whether whole person impairment has resulted from injury to the applicant’s upper extremities and cervical spine is remitted to the Registrar for referral to an AMS.
(2)The materials to be provided to the AMS consist of:
(a)     all documents attached to the Application;
(b)     all documents attached to the Reply;
(c)     all documents attached to Application to Admit Late Documents lodged by           the respondent on 15 March 2013, and
(d)     Report of Dr Ellis dated 12 April 2013 and further statement of applicant          dated 22 April 2013.
(3)     The respondent shall pay the applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The appellant on this appeal challenges the Arbitrator’s finding that Ms Bevan received injury to her cervical spine as alleged. The issue in dispute is thus whether the Arbitrator had erred in so concluding.

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 1998 Act have been met.

THE EVIDENCE CONCERNING THE ALLEGATION OF INJURY TO THE CERVICAL SPINE

Ms Bevan relied upon two statements she made, the first dated 28 June 2012 and the second dated 22 April 2013. In the first of those statements Ms Bevan describes the “very busy” work conditions experienced by her with the appellant during December 2007. She stated that the salon was short staffed and that she found herself working “long hours for extended periods”. That work involved repetitive use of scissors and clippers whilst cutting hair and repetitive use of blow dryers. It was whilst performing this work that Ms Bevan began to experience severe pain “in the wrist area”. That pain “spread to the elbow and shoulder”. It was then that she consulted her general practitioner. The clinical notes of the Cecil Hills Medical Centre, copy of which was tendered on behalf of the appellant, include a notation of a consultation with Dr Nguyen on 12 December 2007 at which time a diagnosis is recorded of “bilateral carpal tunnel S.R. tenosynovitis”.
Ms Bevan was referred to Dr Manohar, whom she first consulted on 8 January 2008. Dr Manohar’s report to Dr Nguyen of the same date records the following matters:
“Her presenting problem is neck ache and headaches. She complains of pain in both thumbs and wrists extending up the right arm to the right shoulder.
She says that she works as a hairdresser and she developed pain symptoms from using the blow dryers. She has a history of a motor vehicle accident.”
Dr Heath reported to Ms Bevan’s general practice by letter dated 14 May 2008. On that day Dr Heath recorded symptoms which were restricted to her right upper limb. Dr Heath recorded that he was questioned by Ms Bevan as to whether those symptoms were “related to a motor vehicle accident from one year ago”. Dr Heath expressed the view that he could not see “how these assorted symptoms relate to each other”. Dr Heath suggested further investigations concerning the possibility of there being an inflammatory condition.
There are five short reports from Dr Bui addressed to Dr Nguyen, the first of which is dated 24 October 2008. The symptoms experienced by Ms Bevan were recorded by that practitioner as affecting her right wrist, right elbow and right shoulder. No complaint of neck pain or discomfort was recorded by Dr Bui.
A report of Dr Dave, dated 20 January 2009, addressed to the appellant’s insurer is in evidence. Dr Dave recorded that Ms Bevan’s symptoms commenced at the base of her thumb, radiating to her elbow and subsequently to her shoulder and neck regions. The diagnoses noted by Dr Dave were De Quervain’s tenosynovitis, right wrist, improving and rotator cuff tendonitis, right shoulder.
Dr Gotis-Graham in a report, dated 22 December 2009, addressed to Ms Bevan’s general practitioner recorded the following history:
“She stated that she noted onset of right wrist pain on the radial aspect in December 2007. This occurred while she was working as an apprentice hairdresser. The pain spread and involved her right forearm, upper arm, right shoulder blade region and her neck.”
Dr Gotis-Graham expressed his assessment as follows:
“There is evidence of:
1.   Right side of De-Quervain’s tenosynovitis
2.   Regional cervical spine pain syndrome
3.   Pain syndrome involving the right upper limb.”
Dr Gotis-Graham also expressed the view that “it is possible that [Ms Bevan] has right C5 or right C6 nerve irritation which may be contributing to her neck and right upper limb pain. It is also possible that she has right brachial plexus lesion”. In a subsequent report, dated 25 February 2010, Dr Gotis-Graham recorded that an MRI scan of the cervical spine and right brachial plexus was completely normal. Dr Gotis-Graham expressed the view that it was clear Ms Bevan did not have cervical radiculopathy or right sided plexopathy. The view was expressed that “the main issue is a chronic pain syndrome involving her neck and right upper limb”.
Dr Max Ellis was qualified to provide an opinion for the purposes of this litigation by Ms Bevan’s solicitors. There are two reports dated 29 August 2011 and two further reports dated 12 April 2012 prepared by Dr Ellis which are in evidence. It is recorded in the 2011 reports that Ms Bevan had:
“no symptoms in her arms until the Christmas rush of 2007. Work was very busy, she did much overtime and pain commenced gradually over a few months in her arms and neck. Using a blow dryer and scissors and clippers were particularly aggravating. The right arm was predominantly affected, she is right handed.”
Dr Ellis recorded that Ms Bevan’s neck pain had “commenced in the first months of the injury early in 2008”. Dr Ellis’s history included a notation that “in the past there has been no other relevant accident or injury, she had no symptoms in her arms for four years working as a hairdresser until the Christmas rush of 2007”. Dr Ellis’s impression was expressed at page three of the first of those reports so far as her neck condition was concerned as follows:
“Her neck has been affected by musculo-ligamentous contusion, aggravation of future degenerative change in the cervical discs and there are secondary effects in her right arm, referred pain and neurological deficit, impaired light touch sensibility, weakness, positive nerve tension signs.”
Dr Ellis, when assessing whole person impairment, included an allowance of five per cent impairment in respect of cervical spine injury.
The reports prepared in 2013 by Dr Ellis followed a re-examination of Ms Bevan. On that occasion Ms Bevan’s history concerning her past health was corrected, as recorded in the report, to include a history of the motor vehicle accident which occurred in March 2007. The circumstances of that accident were that Ms Bevan’s stationary vehicle was struck in the rear by a following car. Dr Ellis recorded an injury to Ms Bevan’s right wrist and lower back pain. Dr Ellis noted that Ms Bevan was able to drive away from the scene, that she was “off work for a week” and that her “symptoms resolved within a few days”. Dr Ellis confirms his earlier diagnosis that Ms Bevan suffered from widespread tendonitis affecting predominantly her right arm and neck. That practitioner also expressed the view that the motor vehicle accident in March 2007 “is unrelated to her present condition”. Dr Ellis again found whole person impairment of five per cent arising from the cervical spine injury.
Ms Bevan was examined on behalf of the appellant’s insurer by Dr Ross Whittaker, consultant rheumatologist, in 2010. Dr Whittaker’s report, dated 9 November 2010, was tendered in evidence. A history is there recorded of the onset of symptoms affecting Ms Bevan’s right wrist, elbow, upper arm and shoulder. At the time of examination Ms Bevan reported that her worst symptom was, as described by Dr Whittaker, her “right sided neck/shoulder girdle muscle pain”.
Dr Whittaker expressed the view that Ms Bevan had “developed a constellation of symptoms in her dominant right upper limb including right De Quervain’s, which has resolved on clinical grounds, mild right lateral humeral epicondylitis and right rotator cuff tendonopathy”. Dr Whittaker stated that those conditions were unrelated to Ms Bevan’s employment. Ms Bevan’s right sided neck/shoulder girdle muscular pain was also noted by Dr Whittaker which, as stated by him, “is likely to be due to her underlying scoliosis”. Dr Whittaker stated that “there is no work-related condition”.
The appellant relied upon two reports from Dr John Bosanquet, orthopaedic surgeon, dated 14 November 2011 and 11 January 2012. The first of those reports recorded history of the alleged work injury. Dr Bosanquet recorded his findings on examination and expressed the opinion that Ms Bevan had “developed a tendonitis in her right wrist, which has developed into a chronic regional pain syndrome involving her right arm, shoulder and neck”. Dr Bosanquet proceeded to assess whole person impairment. The method adopted concerning that assessment involved consideration of the state of Ms Bevans’s right wrist and right shoulder. No reference is made by Dr Bosanquet to any need for an allowance in respect of neck disability. The conclusion was reached that Ms Bevan suffered a 12 per cent whole person impairment. It was this assessment which formed the basis of the appellant’s offer of settlement of Ms Bevan’s claim as noted at [4] above.
The second report of Dr Bosanquet was a response to a number of questions put to him by the insurer. Dr Bosanquet was expressly requested to advise as to whether he considered that Ms Bevan had a “compensable cervical spine injury”. Dr Bosanquet responded:
“While accepting that Ms Bevan has developed some right sided neck/shoulder girdle pain, it is my opinion that this is not related to the work injury of 1 December 2007 so that she does not have a compensable cervical spine injury.”
It is to be noted that Dr Bosanquet’s reference to the date 1 December 2007 is the date, accepted by the parties, on which the subject injury is deemed to have happened. Dr Bosanquet confirmed his earlier assessment of whole person impairment.
The appellant tendered a copy of Ms Bevan’s injury claim form dated 29 October 2008. The injury was described as “tendonitis” and it was recorded in that form that the injury occurred as Ms Bevan was performing “repetitive hairdressing”. In response to a question concerning previous injury that form includes the following entry:
“Wrist was sore for 1 week after motor vehicle accident 30 March 2007 then sore on and off until it got really sore December 2007.”

THE ARBITRATOR’S DETERMINATION CONCERNING THE OCCURRENCE OF THE CERVICAL SPINE INJURY

The Arbitrator concluded that included among the injuries received by Ms Bevan as a result of the demanding work performed by her in December 2007 was one involving her cervical spine. The Arbitrator’s reasoning which lead to that conclusion is to be found between [54] and [59] of Reasons as follows:
“As for the applicant’s allegation of injury to the neck, I note that she complained to Dr Manohar of ‘neck ache and headache’ on 8 January 2008. As is apparent from her subsequent complaints to a variety of doctors, the applicant continued to have right shoulder pain and neck pain.
I consider the applicant’s neck pain to be caused by the demands placed upon her by the busy period of work during the Christmas period. She is right-handed, and was noted to have developed significant pain from the use of hairdryers and scissors. That pain was noted to have extended up her right arm to her shoulder. The development of symptoms in her neck, that were noted by Dr Manohar in January 2008, has no explanation separate from her work activities.
Dr Bosanquet stated in his report of 14 November 2011 that the applicant ‘developed tendonitis in her right wrist, which has developed into a chronic regional pain syndrome involving her right arm, shoulder and neck’. He therefore accepted the relationship between her neck pain and her employment.
His attempt in his report of 11 January 2012 to retract his acceptance that the applicant’s neck condition is work-related is unsatisfactory. He accepted that the applicant ‘has developed some right-sided neck/shoulder girdle pain’ but proceeded to state that, in his opinion, such pain ‘is not related to the work injury of 1 December 2007 so that she does not have a compensable cervical spine injury.’ No explanation was provided as to why the pain is not related to the work-related injury’, and in particular what its aetiology actually is. Indeed, in Dr Bosanquet’s report of 14 November 2011, he stated that ‘[t]here has been no past history of relevance’.
Dr Whittaker noted that the applicant developed right sided neck/shoulder girdle pain. He considered that such pain is ‘likely to be due to her underlying scoliosis’, and that ‘[t]her [sic] is no work related condition’. This opinion is of doubtful value given that the respondent has conceded that the right arm was injured in the manner asserted by the applicant. Moreover, scoliosis does not explain the timing of the onset of the applicant’s symptoms. I am satisfied that the onset of the applicant’s symptoms corresponds with the increased physical demands of work during the Christmas period.
Dr Ellis stated that ‘[a]s a result of the increased workload as a hairdresser during the Christmas period of 2007, Brooke Bevan has suffered the onset of widespread tendonitis affecting predominantly her right arm and neck’. Dr Ellis stated further that the applicant’s neck ‘has been affected by musculo-ligamentous contusion, aggravation of future degenerative change in the cervical discs and there are secondary effects in her right arm, referred pain and neurological deficit, impaired light touch sensibility, weakness, positive nerve tension signs’.”
It may be seen that the Arbitrator, by inference, has accepted Ms Bevan’s evidence concerning pain and disability in her neck. As to the question of causation of that condition it is clear the Arbitrator had, when concluding that such pain and disability was caused by the demands of work during the busy Christmas period, placed considerable reliance upon Dr Manohar’s evidence that Ms Bevan had reported such neck disability during consultation in January 2008.
It is also apparent that the Arbitrator has rejected the evidence of Dr Bosanquet concerning the revised view as to causation expressed by that practitioner in his second report dated 11 January 2012. The opinion of Dr Whittaker was likewise rejected by the Arbitrator. The opinion of that practitioner was found to have been of “doubtful value” given the appellant’s concession that Ms Bevan’s right arm was injured in the course of employment and further that the existence of scoliosis in no way explained the coincidental appearance of the neck disability at the time of accepted injury.

THE APPELLANT’S SUBMISSIONS

There are two grounds upon which reliance is placed by way of challenge to the Arbitrator’s factual finding. However, the manner in which those grounds are expressed fails to explicitly identify the error which it is asserted was committed by the Arbitrator. The first ground suggests that the factual conclusion was reached “against the weight of evidence”. The second ground suggests a failure to take into account relevant evidence. It is suggested that each of these failures constitute error giving rise to a need for correction on appeal.
A number of specific complaints are made by the appellant in its submissions which include:
(a)     no allegation of cervical spine pathology was made until September 2011 at which time the present claim was made;
(b)     the Arbitrator has failed to provide a “cogent explanation as to the mechanism of injury to the cervical spine”;
(c)     failure by the Arbitrator to acknowledge the deficiencies of the history recorded by Dr Ellis, in particular the absence of history of the motor vehicle accident which had caused injury to Ms Bevan’s cervical spine;
(d)     the Arbitrator’s failure to take into account the occurrence of the motor vehicle accident;
(e)     the Arbitrator’s apparent disregard of the evidence of Dr Bui, Dr Heath and that of Dr Nguyen, and
(f)      the opinion of Dr Ellis was of no probative value given the existence of the unsatisfactory and incomplete history upon which that opinion was founded.

CONSIDERATION

It is, as earlier noted, apparent from the reasoning expressed by the Arbitrator that he had placed considerable reliance upon the near contemporaneous report of neck pain made by Ms Bevan to Dr Manohar as noted at [9] above. That the Arbitrator had accepted the evidence of Ms Bevan concerning the occurrence of those symptoms at that time is clear. In my view, nothing raised by the appellant in submissions suggests that such acceptance was not open to the Arbitrator.
It is clear that neck symptoms and the causal connection of those symptoms to the demands of work performed by Ms Bevan in December 2007 was expressly accepted by Dr Gotis-Graham and Dr Ellis. The evidence of Dr Bosanquet, in which he retracted his original opinion which included a diagnosis of work related regional pain syndrome involving various anatomical regions including the neck, was found by the Arbitrator to be unsatisfactory. Such finding was based upon the absence of any explanation expressed by that practitioner as to why there was no relationship between the neck pain and the work related injury earlier diagnosed. Such a finding and the rejection of that practitioner’s evidence, was one open to the Arbitrator. It was a matter for the Arbitrator to determine the weight to be given to the expert medical evidence. Nothing raised in argument by the appellant suggests that his conclusion was made in error.
The appellant has placed considerable emphasis upon the alleged “failure” of Ms Bevan to inform Dr Ellis of the circumstances and consequences of the motor vehicle accident in 2007. It is suggested that Dr Ellis’s evidence carries no weight because of the “inaccurate and inadequate” history recorded by him.
The Arbitrator notes, at [51] of Reasons, that Dr Ellis considered the relevance or otherwise of the motor vehicle accident in his last report. Dr Ellis concluded that the accident was “unrelated to [Ms Bevan’s] present condition”. The Arbitrator had noted that the clinical notes produced by the general practice “do not record any continuing complaints of neck pain following the motor vehicle accident”. It is apparent that the Arbitrator has accepted Dr Ellis’s view that the motor vehicle accident was of no relevance. Again, such conclusion was open to the Arbitrator. That acceptance followed an acknowledgment by the Arbitrator that Dr Ellis had not recorded neck symptoms occurring immediately after the motor vehicle accident. Such course was open to the Arbitrator.
For the reasons I have attempted to outline above I conclude that the appellant has failed to demonstrate relevant error concerning the Arbitrator’s finding of injury to the cervical spine. Whilst it is undoubtedly the case that the state of the evidence as presented in support of Ms Bevan’s claim, including the expert evidence raised by the appellant as noted at [28(e)] above, was in many respects unsatisfactory, I have formed the view that the Arbitrator’s conclusion was open to him on the evidence. I have also reached the view that matters relevant to the evaluation of the weight of the evidence upon which he relied in so concluding had properly been taken into account in the course of his reasoning. In the circumstances the appeal must fail. Appropriate orders appear below.

DECISION

The findings of the Arbitrator and those orders made in Certificate of Determination dated 28 June 2013 are confirmed.

COSTS

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

Kevin O'Grady
Deputy President

24 September 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