Bridge Inn Nominees Pty Ltd v Carr - [2015] NSWWCCPD 64

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bridge Inn Nominees Pty Ltd v Carr [2015] NSWWCCPD 64
APPELLANT:	Bridge Inn Nominees Pty Ltd
RESPONDENT:	Marilyn Carr
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2126/15
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	11 August 2015
DATE OF APPEAL DECISION:	16 November 2015
SUBJECT MATTER OF DECISION:	Adequacy of reasons; application of Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; finding of consequential condition in the right shoulder from the use of crutches and overuse associated with an accepted injury to the left hip; assessment of expert evidence; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Curwoods Lawyers
Respondent:	Slater + Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 11 August 2015 is confirmed.

INTRODUCTION

This appeal challenges an Arbitrator’s finding that the worker suffered a consequential condition in her right shoulder as a result of the use of crutches and using the right shoulder to support herself in various activities of daily living, following an accepted injury to her left hip. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

Mrs Marilyn Carr, the respondent worker, was employed by Bridge Inn Nominees Pty Ltd, the appellant employer, as a cleaner at the Sportslander Motor Inn at Moama, New South Wales.
On 23 August 2013, Mrs Carr was cleaning bathrooms at the motor inn when she slipped on a tiled floor and fell heavily on to her left side. Mrs Carr suffered a fracture of the neck of the left femur and minor injuries to her left hand and both knees. There is no dispute with respect to those injuries.
Immediately after the incident, Mrs Carr was taken by ambulance to Echuca hospital. She was subsequently transferred to Bendigo hospital, where she underwent internal fixation of the fracture of the neck of the femur at the hand of Dr Husaini, locum doctor.
After four or five days Mrs Carr was discharged from hospital. Following her discharge from hospital Mrs Carr used crutches for 12 weeks. She alleges that due to the use of the crutches, and by reason of favouring the right arm, in addition to the impairment resulting from the fracture to the hip, she also suffered a consequential injury to the right shoulder.
On 8 January 2015, Mrs Carr’s legal representative, Slater + Gordon Lawyers, made a claim for lump sum compensation in the sum of $18,700 in respect of 13 per cent whole person impairment, pursuant to s 66 of the Workers Compensation Act 1987. This claim was made in accordance with Dr James Bodel’s assessment of 13 per cent, recorded in his report of 5 December 2014 to comprise of six per cent whole person impairment in respect of the right upper extremity, six per cent in respect of the injury to the lower left extremity and one per cent for scarring.
On 16 March 2015, QBE Workers Compensation (NSW) Limited (QBE), acting on behalf of the appellant, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). QBE declined liability for the claim on the basis that an independent medical examiner, Dr Anthony Smith, who examined Mrs Carr on 13 February 2015, opined that the fracture to the left femur had recovered resulting in zero per cent whole person impairment.
On 16 April 2015, Mrs Carr lodged an Application to Resolve a Dispute in the Commission (the Application). She claimed injuries “to the left wrist, left hand, left hip, right shoulder and both knees”, arising from the injury on 23 August 2013. Mrs Carr claimed lump sum compensation in accordance with her solicitor’s demand of 8 January 2015.
On 5 May 2015, the appellant filed a Reply to the Application. It denied liability for the reasons referred to in its s 74 notice of 16 March 2015.
On 14 July 2015, by an Application to Admit Late Documents, the appellant sought leave to rely on a further report of Dr Smith dated 9 July 2015. In that report Dr Smith opined that the condition in Mrs Carr’s right shoulder was not consequential upon the accepted injury to the left leg.
Following a telephone conference on 25 May 2015, the Commission issued a direction, among other things, directing that the Application be amended in the following terms:
“(a) by deleting in Part 4 the allegation of injury to the right shoulder and by inserting in lieu an allegation that [Mrs Carr] developed a pathological condition in the right shoulder consequential upon the injury to the left hip due to the requirement to use crutches, and
(b) by deleting in Part 4 an allegation of injury to both knees.”
On 4 August 2015, the matter was listed for arbitration before a Commission Arbitrator, Mr Dalley. Mrs Carr was represented by Mr Tanner of counsel and the appellant was represented by Mr Carney of counsel. The issue before the Arbitrator concerned the dispute in relation to the condition of the right shoulder and whether that condition was consequential upon the accepted injury to the left hip on 23 August 2013.
There was no oral evidence called at the hearing. After hearing detailed submissions from both parties, the Arbitrator delivered an extempore decision. The Arbitrator found in favour of Mrs Carr. He was satisfied, on the balance of probabilities, that Mrs Carr suffered a condition in her right shoulder which was consequential upon the accepted injury to the neck of the femur caused by the fall on 23 August 2013.
On 11 August 2015, the Commission issued a Certificate of Determination in the following terms:
“1. The claim pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to determine whole person impairment, if any, arising from injury to the left lower extremity on 23 August 2013, consequential scarring (TEMSKI) and consequential condition in the right upper extremity (shoulder).
2. The material to be supplied to the Approved Medical Specialist should include:
a)Application to Resolve a Dispute and attached documents;
b)Reply and attached documents;
c)Statement of the applicant attached to Application to Admit Late Documents by the applicant dated 22 May 2015;
d)Qualifying letter and report of Dr Kennedy attached to Application to Admit Late Documents by the applicant dated 15 June 2015, and
e)Report (supplementary) of Dr Anthony Smith attached to Application to Admit Late Documents by the respondent dated 14 July 2015.”
The appellant appeals the Arbitrator’s determination with respect to his findings concerning the consequential condition of the right upper extremity (shoulder).

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

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.

THE EVIDENCE

Marilyn Carr

Mrs Carr provided a signed statement of evidence dated 20 May 2015. Mrs Carr stated that on 23 August 2013, when entering a bathroom, her left foot gave way and she slipped on the tiled floor. She said that she came down heavily on her left side, mainly hip and left hand. She was initially taken by ambulance to Echuca hospital where it was discovered that she had fractured her left hip and sprained her wrist. She was then transferred to Bendigo hospital and operated upon the next day. She underwent internal fixation of the fracture to the left hip.
Mrs Carr said that she was discharged after four or five days using crutches. She said:
“I used these crutches for the next 12 weeks despite the fact that they hurt my shoulders. This was my only means of mobility.
The use of crutches particularly hurt my right shoulder as I had to favour that side to compensate for my fractured left hip.
After I stopped using the crutches I had difficulty walking and, after a time, developed pain in my knees due to an altered gait. I am naturally right handed but my main injury to my left hip also required that I mainly use my right arm and shoulder.
I had to use my right arm and shoulder to balance myself when stationary, pull myself upstairs, balance myself descending stairs, pulling myself out of my car, balancing myself and taking my weight while I was getting into the car, getting in and out of bed and just for general balance. I had particular difficulty getting out of chairs and would have to twist around and take my weight with my right arm and shoulder and exert force to push myself up.
About 12 weeks after my operation I had frequent pain in my right shoulder extending all the way to my hand and further to my ribs.
I had no alternative but to use my right arm and shoulder in this way if I wished to do other than stay in bed.
I reported my right shoulder condition to my GP, Dr Samuel Kennedy, on many occasions. Dr Kennedy discussed a cortisone injection in my shoulder, anti-inflammatory and analgesic medication. Dr Kennedy recommended patches for my shoulder. I currently use Voltaren Cream. Dr Kennedy has referred me for an ultrasound of my right shoulder in about April. The results will be available on 20 May 2015.
About 3 months after my injury and struggling to be mobile with my altered gait caused by my hip fracture I developed pain in both knees. I also developed pain in my right shoulder but I had to keep using it to be able to get around as my left hip would not allow full balance.”

Medical evidence

Following her discharge form hospital, Mrs Carr came under the care of an orthopaedic surgeon, Dr Williams. He provided two brief reports to Dr Samuel Kennedy, Mrs Carr’s general practitioner, dated 20 November 2013 and 13 August 2014. Both of those reports focussed on the injury to the femur. He noted that the fracture had united in good position, although functionally Mrs Carr was still improving and remained unfit for employment. He made no mention of the injury to the shoulder.
Dr Kennedy issued a series of certificates dated from on 6 September 2013 to 14 August 2014. The certificates are almost identical in nature. Each certificate records the injury as “#L NOF”. Under the heading “Treatment/medication”, Dr Kennedy recorded on each certificate “ORIF L NOF” which I have inferred is an abbreviation for open reduction and internal fixation left neck of the femur. Mrs Carr was certified as having no capacity for work from 23 August 2013 to 24 February 2014. Thereafter, Dr Kennedy certified her fit for heavily restricted duties until 14 September 2014.
On 4 November 2014, Mrs Carr was examined by Dr Bodel at the request of her solicitors. Dr Bodel prepared a report dated 5 December 2014, in which he recorded:
“She was checking the bathroom and placing the ‘hygiene strips’ on the toilet when she fell very heavily in the bathroom area. She landed on her outstretched left wrist and hand, the left hip, both knees and the right shoulder and she did not render herself unconscious.”
Dr Bodel also recorded that she was mobilising on two Canadian crutches and was partially weight bearing on her left side following her discharge from hospital. He noted that Mrs Carr had been under the care of an orthopaedic specialist but had not been offered treatment for the complaints with regard to her left wrist and right shoulder. He also noted that the hip injury had progressed, but she was still having “difficulties” in the groin on the left side and prolonged standing or walking aggravated the symptoms.
Dr Bodel further noted that Mrs Carr had post-operative physiotherapy and managed to get off the crutches at about the 12 week mark. He provided a very detailed report which included, among other things, a detailed account of Mrs Carr’s current complaints, which included pain and stiffness in the region of the right shoulder. He recorded ranges of motion in the right and left shoulders and noted that the range of motion in every direction was compromised on the right. In answer to specific questions that were put to Dr Bodel in terms of the history he obtained, he said “this lady suffered a fracture of the neck of the femur in the fall that occurred on 23 August 2013. She also suffered a soft tissue injury to the right shoulder and the left wrist”. He diagnosed a fracture of the neck of the femur and a rotator cuff injury to the region of the right shoulder and a contusion in the region of the left wrist. He opined that the injuries occurred during her employment with the appellant. He assessed her permanent impairment as previously discussed.
Dr Kennedy, Mrs Carr’s general practitioner, provided a brief report dated 5 June 2015. In answer to specific questions from Mrs Carr’s solicitor, Dr Kennedy stated that he was unable to verify a detailed history of the injury. However, he said that “I can verify that [Mrs Carr] suffered a left fractured neck of femur at work, and that she has developed subacute right shoulder pain”.
Dr Kennedy stated that he first became aware of her right shoulder injury on 28 January 2015. He opined that Mrs Carr has a right subacromial bursitis “which is due to a combination of poor biomechanics and overuse”. He stated that the diagnosis had been confirmed on ultrasound of the right shoulder and that she required physiotherapy. He further stated that a subacromial steroid injection had been suggested and a referral had been provided to have that procedure at Echuca Regional Health under ultrasound guidance.
Dr Kennedy concluded:
“This injury represents a good prognosis, in the absence of rotator cuff tendinopathy as confirmed on the ultrasound. Improved compliance to management plans by [Mrs Carr], in combination with smoking cessation, would improve the time frame to recovery.”
Dr Kennedy’s clinical notes are in evidence. The first entry after her fall was on 6 September 2013. Dr Kennedy’s notes are extremely brief and are laden with medical abbreviations making them difficult to follow. His entry on 6 September merely notes “#NOF analgesia OK”. I have inferred that that refers to a notation of fracture neck of femur not requiring analgesia for the relief of pain. The entries that I reviewed throughout September 2013 to October 2014 make only passing references to the injuries to the hip and no reference to the condition of Mrs Carr’s shoulder. None of the entries record details of her symptoms.
On 15 February 2015, Dr Smith, orthopaedic surgeon, prepared a report at the request of QBE. The report focussed on Mrs Carr’s injury to the hip. He concluded that the fracture to the left hip had healed in good position. He concluded that Mrs Carr had a slightly better range of movement of the right hip than the left hip. He concluded that there was no reasonable impairment relating to her hip fracture. However, he said:
“She has a 4% whole person impairment because of the restriction in the range of movement of each hip. The right hip was not injured so one can deduct 4% in the right hip from the left hip leaving a zero whole person impairment as a result of the fracture.”
In a supplementary report, dated 9 July 2015, in answer to a direct question concerning his diagnosis of the injury to the right shoulder, Dr Smith recorded “in my opinion there is nothing wrong with her shoulder. Even if she has bursitis or rotator cuff disease these are within normal limits in her age group”.
Dr Smith was then asked for his opinion as to whether Mrs Carr had suffered a consequential condition in her right shoulder by reason of having to use crutches “favouring the left side because of her left hip injury”. Dr Smith sated:
“The injury occurred in August 2013. The condition is not consequential to the injury on August 2013 by reason of having to use crutches for her hip fracture. If there is any relation between [the] shoulder and the hip injury due to using the crutches it would have occurred within two to three months from the date of injury.”
Dr Smith was asked to provide his opinion as to the causation of the right shoulder condition if it was not a consequential condition to the injury on 23 August 2013. He said:
“I do not consider there is a condition in her right shoulder. When I saw her on 13 February 2015 the clinical examination was normal. The rotator cuff disease and bursitis occur in asymptomatic people in her age group.”

THE ARBITRATOR’S REASONS

The Arbitrator concluded on the balance of probabilities that Mrs Carr suffered a condition in her right shoulder which was consequential upon the fracture of her femur sustained when she fell at work on 23 August 2013. He accepted that the conclusion was finely balanced and gave his reasons for it.
First, the Arbitrator accepted Mrs Carr’s unchallenged evidence. Relevantly, the Arbitrator accepted that Mrs Carr used crutches on both arms, but particularly with the right arm, and that she used the right arm to balance and prevent herself from falling. He also accepted Mrs Carr’s evidence that she first noticed pain in her right shoulder while using crutches.
The Arbitrator found that even after ceasing to use crutches, Mrs Carr continued to use her right arm to assist with stability and to lever herself from a seated position and to generally sustain her balance. The Arbitrator accepted that Mrs Carr told Dr Kennedy on many occasions that she was suffering from problems with her right shoulder, and treatment was discussed. However he considered it likely that the seriousness of the left hip injury overshadowed complaints with respect to the right shoulder.
Second, the Arbitrator noted that Mrs Carr’s statements of complaints to her general practitioner, Dr Kennedy, were not corroborated in his notes. However, he exercised caution in placing too much weight on Dr Kennedy’s notes stating that they were “fairly minimalist” and were designed for his own use “rather than for decision-makers”.
The Arbitrator found that the notes indicated that between January 2014 and March 2014 Mrs Carr was declining analgesia notwithstanding the pain at that time. The Arbitrator inferred from this that Mrs Carr was a stoical person and it may not have occurred to the doctor to record anything about the shoulder pain in a patient who did not require analgesia within six months of breaking their left femur.
Third, the Arbitrator accepted Dr Kennedy’s unequivocal opinion that Mrs Carr suffered a left fracture to the neck of her femur at work and that she developed sub-acute right shoulder pain which was confirmed by ultrasound of the right shoulder. He accepted Dr Kennedy’s opinion that the condition in Mrs Carr’s shoulder was due to “poor biomechanics and overuse”.
Fourth, the Arbitrator placed no weight on Dr Bodel’s opinion on causation because Dr Bodel recorded, wrongly, that Mrs Carr injured the right shoulder in the fall on 23 August 2013. Mrs Carr never made that allegation. Her claim in respect of the shoulder condition was that it was a consequential condition due to the use of crutches and her altered habits with respect to the use of the right arm and shoulder after the accepted injury to the hip. The Arbitrator did however rely on Dr Bodel’s history as evidence of complaints of shoulder pain in November 2014, when he assessed Mrs Carr.

Fifth, the Arbitrator rejected Dr Smith’s evidence on causation (T6.2). He noted that Dr Smith opined that there was nothing wrong with Mrs Carr’s shoulder, yet he agreed that she had bursitis or rotator cuff disease but assessed that these were within normal levels for a person of her age. The Arbitrator noted (at T4.28) that Dr Smith excluded the possibility of any causal relationship between the condition of Mrs Carr’s shoulder and the use of crutches.
The Arbitrator noted that although Dr Smith opined that the presence of rotator cuff disease and bursitis can occur in asymptomatic people of Mrs Carr’s age there was, nevertheless, pathology shown by ultrasound of bursitis together with a history of an onset of symptoms after the pattern of Mrs Carr’s movements changed by reason of the fracture to her hip.

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred:
(a)     in failing to provide proper and adequate reasons for finding that Mrs Carr sustained a consequential right shoulder injury;
(b)     in finding that Mrs Carr sustained a consequential right shoulder injury when such a finding was not open on the evidence, and
(c)     by rejecting the opinion of Dr Smith on the basis of not having a full history.

Ground one – the adequacy of the Arbitrator’s reasons

The appellant’s submissions

The appellant submitted that the majority of the Arbitrator’s decision is a commentary on the evidence and the only reasons for the decision appear on the final two pages of the transcript which essentially amounts to a decision based on an acceptance of Dr Kennedy’s opinion, as expressed in his brief report.
It is submitted that the Arbitrator “appears to have accepted” that there were no contemporaneous recorded complaints of right shoulder pain because of the seriousness of the symptoms in the left hip. The appellant submitted that:
“the Arbitrator has failed to explain how this is relevant to the issue in dispute and further, any inference that might be drawn from this statement is not consistent with [Mrs Carr’s] own evidence that she reported her right shoulder condition to her GP, Dr Kennedy on many occasions even though this is not actually supported by his clinical notes.”
The appellant submitted that if the Arbitrator intended to draw an inference that the seriousness of the left hip injury meant that it was the focus of treatment (and not the right shoulder) such an inference was not open on the evidence. That is because Mrs Carr stated that 12 weeks after her operation she had frequent pain in the right shoulder extending to her hand. Mrs Carr saw Dr Kennedy for treatment of unrelated conditions at that time. Therefore, it is submitted, “… it is not the case that Dr Kennedy solely treated her with respect to the left hip injury”.
The appellant submitted that the Arbitrator failed to state the evidence on which he relied to support the conclusion that the shoulder condition was consequential to the left hip injury.
However, the appellant also submitted:
“Furthermore, the Appellant submits there is no evidence [of a causal connection], other than [Mrs Carr’s] own statement, and Dr Kennedy’s inadequate report on causation that supports the contention that the right shoulder injury was sustained as a consequence of the left hip injury.”
The appellant further submitted:
“The Arbitrator also stated (at the top of page 7 of the transcript) that Dr Kennedy’s opinion is that use of the arm to rise and balance and the use of crutches have led to the onset of pathology in the shoulder as a consequential condition. However, [the Appellant] submits this is not an opinion provided by Dr Kennedy. The Appellant therefore submits the Arbitrator has failed to give proper reasons for his decision, noting there is no reference to any medical opinion that considers there is a causal link between the left hip injury and the alleged consequential injury to the right shoulder, or how the hip injury led to the right shoulder injury.”

Discussion

When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443). The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell(1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The obligation to give reasons “has to be considered in the light of the issues raised for consideration by the parties” (Brambles Industries Ltd v Bell[2010] NSWCA 162 (Bell) per Hodgson JA (Tobias and McColl JJA agreeing) at [22]). The reasons must do justice to the issues posed by the parties’ cases (Moylan v Nutrasweet Co[2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing)).
The Arbitrator’s relevant factual findings may be summarised as follows:
·        Mrs Carr was weight bearing with the aid of crutches for a number of months after the injury (T2.17).
·        She used her right arm to assist her stability and to resist falling movements and to lever herself up from a sitting position and generally sustain her balance (T2.20).
·        A right handed person would be expected to use the right arm extensively to prevent falls and to help herself in rising and altering her position (T4.14).
·        Mrs Carr first noticed pain in the shoulder whilst using crutches (T5.27).
The Arbitrator correctly stated that his decision was a “balancing exercise” based on the whole of the evidence and that his decision was “finely balanced” (T1.26).
He stated that as a consequence of the fractured femur, it was reasonable to assume that Mrs Carr would have had to change how she moved about, how she rose from a seated position, the way she supported herself and balanced herself following the injury to her left femur (T6.23).
The Arbitrator accepted that Mrs Carr had made complaints to Dr Kennedy. Those complaints were not recorded in the notes probably because of the minimalist nature of the notes (T2.33) or because the seriousness of the left hip injury explained the absence of recorded complaints of shoulder pain (T6.27).
The Arbitrator inferred from the fact that Mrs Carr declined analgesia in January 2014 and again in March 2014, for relief of pain arising from the fractured femur, that she was a fairly stoical person and for that reason it may well not have occurred to the doctor to record anything about the shoulder in a patient who doesn’t require analgesia within six months after falling and breaking their left femur.
He accepted Dr Kennedy’s opinion that Mrs Carr suffered from bursitis in the shoulder which was due to poor biomechanics and overuse (T6.19).
The Arbitrator concluded that Dr Bodel’s opinion was not reliable because of an incorrect history (T3.19 and T5.33).
The Arbitrator rejected Dr Smith’s opinion on causation because of an incomplete history, namely the absence of a history of the mechanics of weight bearing to supplement the forces required to support Mrs Carr’s weight in addition to the use of crutches (T6.2).
The Arbitrator accepted, at least inferentially, Mrs Carr’s evidence that she had complained of shoulder pain to Dr Kennedy on many occasions. Mrs Carr’s credit was not in issue and it was open to the Arbitrator to accept that she had made a number of such complaints.
These findings were open on the evidence available to the Arbitrator.
I reject the submission that there is any inconsistency in the Arbitrator’s findings with respect to the complaints of shoulder pain to Dr Kennedy and the absence of recorded complaints in Dr Kennedy’s clinical notes. The Arbitrator accepted the evidence of Mrs Carr that she made complaints of shoulder pain on many occasions as she said in her statement. He considered that the most likely explanation for Dr Kennedy not recording those complaints in his notes was because Dr Kennedy was focused on the more serious condition, namely, the fractured left hip. Those findings sit logically together.
The Arbitrator’s reasons, when read in their entirety, exposed his reasoning process and articulated the essential ground on which he based his decision. He accepted that Mrs Carr had suffered a consequential condition in her right shoulder arising from a fracture of her left hip. The condition was due to overuse associated with the use of crutches and use of the shoulder to assist in rising from a seated position and to gain her balance. It follows that ground one fails.
As the appellant’s complaints in relation to the Arbitrator’s acceptance of Dr Kennedy’s opinion and the absence of recorded complaints in his notes overlap with the submissions dealing with ground two I will deal with them under that ground.

Ground two – the Arbitrator’s finding that Mrs Carr sustained a consequential condition in her right shoulder

The appellant’s submissions

The appellant submitted that there is no contemporaneous evidence to corroborate Mrs Carr’s contention that she developed right shoulder pain as a result of using crutches and having to use the right arm to balance herself and take her weight when she was getting around after the hip surgery.
The first mention of shoulder problems to any medical practitioner was on 4 November 2014 to Dr Bodel, more than a year after the injury. It is submitted that, notwithstanding the pain Mrs Carr says she was experiencing, she did not mention the shoulder pain to Dr Kennedy or Dr Williams, who saw her on two or more occasions following the surgery.
The appellant accepts that Dr Kennedy’s notes are brief, but submitted that there should have been some reference to the shoulder pain and there is not. Further, it is submitted that there is no reference to the right shoulder condition in any of the WorkCover certificates of capacity completed by Dr Kennedy, which require a significant amount of detail.
The appellant submitted that the history taken by Dr Bodel of a frank injury to the right shoulder on 23 August 2013 is wrong. Mrs Carr did give a history to Dr Smith of pain in the right shoulder using crutches, but on examination he recorded “normal range and rhythm of the shoulder without complaints of pain”.
Mrs Carr has made no attempt to explain the discrepancy in the history provided to Dr Bodel and Dr Smith. It was only after the appellant raised an issue with respect of liability to the right shoulder that Mrs Carr provided a statement that contains a more detailed history regarding the alleged injury to the right shoulder.
It is submitted that for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of the fact: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. Weighing Mrs Carr’s evidence with other objective evidence or the absence of it, it is further submitted that it was not open to the Arbitrator to establish an actual persuasion of the existence of the alleged right shoulder condition, noting:
(a)     there was no contemporaneous evidence recording right shoulder pain;
(b)     Mrs Carr’s evidence was inconsistent with the clinical notes and medical records of Dr Kennedy;
(c)     Mrs Carr’s evidence did not account for a lack of recording of her pain by any medical practitioner, lack of treatment or inconsistent history she provided to Dr Bodel, and
(d)     Mrs Carr has had no treatment in respect of the right shoulder.
The appellant submitted:
“the probability of a right shoulder injury having occurred as a consequence of the left hip injury is more unlikely than a consequential condition of the left shoulder and therefore, the Arbitrator should have found that [Mrs Carr] has not discharged the onus of proof.”
The appellant argued that the submission in the preceding paragraph is supported by the fact that there is no statement of medical opinion on the issue of causation that supports the Arbitrator’s finding that Mrs Carr sustained a consequential right shoulder injury. It is submitted that the Arbitrator appropriately rejected Dr Bodel’s opinion based on an inaccurate history.
Further, it is submitted that Dr Kennedy’s opinion to the effect that the shoulder condition was due to poor biomechanics and overuse does not support a causal connection specifically to the use of crutches or having to rely upon her right arm following the hip operation. Dr Kennedy has not explained how poor biomechanics and overuse would have led to the right shoulder injury. The opinion was expressed without reference to the actual activities alleged to have caused the condition and is not probative in any way and does not satisfy the test in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita).

Discussion

As submitted by the respondent, this ground of appeal is essentially a complaint that, in weighing the evidence, the Arbitrator should have given more weight to the absence of contemporaneous records of right shoulder pain. That submission may have been relevant to a review on the merits however, as this is an appeal under s 352 of the 1998 Act, the appeal process is characterised by the identification and correction of error. Nevertheless, I will deal with the appellant’s submissions.
In a civil case, such as this, corroboration is not required. It is not the law that a worker requires corroboration before he or she can succeed. The task of a trial judge (and an Arbitrator) is to decide, on the basis of the whole of the evidence, what he or she accepts (Chanaa v Zarour [2011] NSWCA 199 at [86]). Accordingly, and for the reasons discussed below, I reject the submission that the Arbitrator erred in his conclusions because of an absence of contemporaneous evidence to corroborate Mrs Carr’s evidence.
The Arbitrator’s reasons indicate that he, quite correctly, approached the use of Dr Kennedy’s notes with caution. That was consistent with the approach adopted in Winter v NSW Police Force [2010] NSWWCCPD 121 (Winter) where Deputy President Roche noted (at [183]):
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).”
As counsel for the respondent pointed out, although the Deputy President’s decision in Winter was set aside on appeal to the Court of Appeal (New South Wales Police Force v Winter [2011] NSWCA 330), his observations regarding the need to treat clinical notes with care were not disturbed and are still sound.
As I have indicated, Dr Kennedy’s notes are extremely brief. In dealing with the issues before him the Arbitrator was correct to treat them with caution because, as the Arbitrator noted, even the entries relating to the management of the hip injury failed to record in any detail the symptomatology complained of in relation to that condition.
Dr Kennedy’s opinion that Mrs Carr suffered a right subacromial bursitis was supported by an ultrasound of the shoulder. He concluded that the condition was due to a combination of poor biomechanics and overuse. I accept that Dr Kennedy did not say in terms that the biomechanics and overuse related to the use of crutches and more general support of the injured hip. However, it was open to the Arbitrator to conclude, in light of Mrs Carr’s evidence, that using crutches and using her right arm to support her weight even after she ceased using crutches met the description of “overuse”.
The appellant submitted that the absence of recorded complaints of shoulder pain is consistent with the certificates of capacity written by Dr Kennedy. Dr Kennedy issued a series of certificates dated from 6 September 2013 to 14 August 2014. As I have indicated, the certificates are almost identical in nature. The certificates, as with Dr Kennedy’s clinical notes, are written with little information (see above at [22]).
The information recorded on the certificates may have been perfectly appropriate for the purpose for which they were prepared. However, it does not assist in deciding questions of causation. Although the Arbitrator did not specifically refer to the certificates in his decision, he noted during the hearing of the arbitration that it would be difficult to place any weight on them given the brevity of the information they contained. That finding was open to the Arbitrator and discloses no error.
The appellant essentially contends that due to the lack of contemporaneous evidence, inconsistency between Mrs Carr’s evidence and the clinical notes, the inconsistent history provided to Dr Bodel and the absence of treatment, the Arbitrator could not feel an actual persuasion of the existence of the fact, namely that the condition of the shoulder was consequential upon the fracture to the left hip. I reject that submission.
As I have indicated, it was open to the Arbitrator to accept Mrs Carr’s evidence that her symptoms developed gradually while she was using crutches and that she reported her symptoms to Dr Kennedy. The symptoms developed because of the use of the crutches and as she struggled when pushing, pulling, balancing etc. As I have indicated it was open to the Arbitrator to find on balance that those complaints were not recorded in Dr Kennedy’s clinical notes because of the idiosyncratic way in which Dr Kennedy recorded complaints and that the treatment of the hip fracture overshadowed the complaints with respect to the shoulder.
It may be accepted that the history recorded by Dr Bodel was incorrect. However, that does not advance the appellant’s case on appeal as no relevant error has been identified. The Arbitrator did not rely on Dr Bodel’s opinion. That was consistent with the approach urged upon the Arbitrator by the appellant at the Arbitration hearing. Moreover, Mrs Carr has been remarkably consistent in her claim that the right shoulder injury occurred gradually after using crutches.
The appellant submitted that Mrs Carr made no attempt to explain the discrepancy in the history provided to Dr Bodel and the history provided to Dr Smith until the appellant raised an issue with respect of liability for the right shoulder injury. The submission is not further developed by any reasoned argument and its relevance is unclear. If it is to be inferred that this submission raises a credit issue, I reject it. Mrs Carr’s credit was not in issue before the Arbitrator. The Arbitrator cannot have erred in not dealing with an issue on which no submissions were made (Bell at [22] and [30]).
I reject the submission that there is no proper statement of medical opinion on the question of causation that supports the Arbitrator’s finding. Dr Kennedy’s opinion provided that support. Dr Kennedy explained that the subacromial bursitis in Mrs Carr’s right shoulder was due to poor biomechanics and overuse. As I have indicated, it was open to the Arbitrator to find that Mrs Carr’s evidence was that she effectively overused the right shoulder due to the use of crutches and favouring the shoulder during activities of daily living. That evidence was sufficient to support the conclusion that the subacromial bursitis in Mrs Carr’s right shoulder was consequential upon the accepted hip injury. Dr Smith did not exclude overuse as a possible cause of shoulder symptoms, but concluded that there was nothing wrong with Mrs Carr’s shoulder.
The submission based on Makita is misguided. Makita is concerned with the admissibility of evidence. However, as Beazley JA (as her Honour then was) explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [83], in the case of a non-evidence-based jurisdiction such as the Commission, the question of the acceptability of expert evidence will not be one of admissibility but of weight. No Makita point was taken before the Arbitrator, Dr Kennedy’s report was admitted without objection. It was open to the Arbitrator to determine causation by accepting the evidence from Mrs Carr and Dr Kennedy and applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), especially in circumstances where there is no medical evidence to exclude a connection between the hip injury and the shoulder condition.

The Arbitrator’s conclusion is based on his assessment of the whole of the evidence and, as he said, it was finely balanced. His reasons for concluding that Mrs Carr sustained a consequential condition in her right shoulder are set out at [51] of this decision. His reliance on Dr Kennedy’s opinion was limited to an acceptance of Dr Kennedy’s opinion that Mrs Carr suffered from bursitis in the shoulder which was due to poor biomechanics and overuse. That was a matter that was within his expert knowledge and was based on his clinical observations and it was open to the Arbitrator to accept it.
For these reasons I reject ground two.

Ground three - the rejection of Dr Smith’s opinion

Submissions

It is submitted that the Arbitrator erred in rejecting Dr Smith’s opinion on the question of causation because he did not have the history of the difficulties experienced by Mrs Carr leveraging herself up from a seated position and supporting herself with her right arm, although he did note the history of symptoms occurring when she was using crutches.
It is also submitted that although Dr Smith did not repeat the full history, he did have access to Mrs Carr’s statement in reference to the onset of pain after using the crutches. The appellant submitted that Dr Smith’s opinion should have been accepted in the circumstances.
The respondent submitted that this is not a proper ground of appeal. The appellant does not assert error or explain how the Arbitrator’s rejection of Dr Smith’s opinion would constitute an error of fact, law or discretion.

Discussion

I do not accept the appellant’s submissions for the following reasons.
The Arbitrator rejected Dr Smith’s opinion on the question of causation for a number of reasons. First, Dr Smith’s conclusion based on his clinical examination that Mrs Carr’s shoulder was normal was not correct. The ultrasound of her right shoulder demonstrated the presence of subacromial bursitis in the shoulder.
Second, Dr Smith’s opinion was based on an incomplete history. Mrs Carr alleged her shoulder condition was due to the use of crutches, and using her right arm and shoulder to balance herself when stationary, pulling herself up stairs, pulling herself out of her car, balancing herself and leveraging herself out of chairs even after she ceased using crutches. Apart from the use of crutches, Dr Smith did not have regard to those matters when expressing his opinion on causation.
Third, Dr Smith opined that it was normal for people of Mrs Carr’s age to have such conditions, albeit asymptomatic. However, Dr Smith did not explain why the bursitis was present only in the right shoulder, particularly when the evidence revealed that it was the right shoulder that was subject to the overuse allegations.
If Dr Smith was provided with Mrs Carr’s statement, as the appellant submits, it is not apparent from his report, as he either failed to appreciate or ignored a significant aspect of the history upon which Mrs Carr’s case was based. Namely, that the condition in the shoulder was based not only on the use of crutches, but also on the manner in which she used her shoulder to leverage herself in activities of daily living including accessing cars, using stairs, rising from a seated position and for balance generally.
For the reasons given by the Arbitrator, it was open to him to reject Dr Smith’s opinion. No error has been demonstrated.
It follows that ground three fails.

CONCLUSION

It was open to the Arbitrator to conclude that the use of crutches and favouring her right shoulder in activities of daily living following the accepted injury to her left hip resulted in a consequential injury in Mrs Carr’s right shoulder.
The absence of contemporaneous complaints of pain in her right shoulder, being evidenced in her treating doctor’s notes, was not fatal to the claim as it was open to the Arbitrator to accept Mrs Carr’s evidence that such complaints were made but not recorded.

DECISION

The Arbitrator’s determination of 11 August 2015 is confirmed.

Judge Keating
President

16 November 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.