Britt v Zurich Financial Services Australia Ltd - [2012] NSWWCCPD 75

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Britt v Zurich Financial Services Australia Ltd [2012] NSWWCCPD 75
APPELLANT:		David Britt
RESPONDENT:		Zurich Financial Services Australia Limited
INSURER:		CGU Insurance Limited
FILE NUMBER:		A1-1380/12
ARBITRATOR:	Mr William Dalley
DATE OF ARBITRATOR’S DECISION:		22 August 2012
DATE OF APPEAL DECISION:		12 December 2012
SUBJECT MATTER OF DECISION:		Proof of causation; sufficiency of reasons for decision; need to define grounds of appeal
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Slater & Gordon Lawyers
Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:		1. Paragraphs one and two of the Arbitrator’s determination found in Certificate of Determination dated 22 August 2012 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

Mr David Andrew Britt was employed by Zurich Financial Services Australia Limited (the respondent) as National Manager, e-Commerce between February 2001 and March 2007. There is no dispute that, on 18 May 2005, Mr Britt received an injury to his neck in the course of his employment. That injury occurred whilst Mr Britt was engaged on a business trip. Mr Britt’s evidence is that, when in Perth on that day carrying his luggage and work equipment to his hotel, he felt a sharp pain in his neck on the left side. He also experienced pain radiating down his left arm. The pain persisted thereafter and he sought treatment from a general practitioner in Adelaide which was his next scheduled stop on the planned business trip.
Upon his return to Sydney, where he was based, he sought treatment from his treating physician Dr Cassy Workman and was subsequently referred to Dr Grace Bryant, who practiced with South Sydney Sports Medicine at Kensington. The material before the Commission does not include any exact evidence concerning Mr Britt’s absence from work following his return to Sydney. However, there are in evidence a number of medical certificates issued by various practitioners during the period immediately following the injury. It appears that the latest of those medical certificates concerning Mr Britt’s unfitness for duties was issued by Dr Bryant. That certificate, not a WorkCover certificate, stated that Mr Britt was unfit up to and including the day of issue, being 10 June 2005.
The evidence is silent as to whether Mr Britt was paid compensation benefits during that apparent initial absence from work. Indeed, there is no direct evidence before the Commission as to what, if any, compensation has been paid by the respondent in respect of the subject injury. However, there is evidence of a claim having been made by Mr Britt on 31 March 2006.
The evidence reveals that Mr Britt experienced a number of health problems, unrelated to the injury, requiring treatment during the interval between his initial return to work and surgery, being cervical discectomy and fusion, conducted by Dr Parkinson on 20 March 2006. The evidence, as noted, suggests that it was at about that time a claim was first made in respect of compensation benefits. Mr Britt stated in evidence that he was able to return to work in September 2006 following the surgery. Again the evidence is silent as to whether compensation benefits were paid during that absence from work.
Following cessation of employment with the respondent, which followed redundancy of his position, Mr Britt obtained a number of positions including an appointment as Global Web Producer with Cochlear Limited. That employment commenced in August 2007. That employment came to an end following Mr Britt’s resignation in March 2008. Since that time Mr Britt has undertaken retraining and has obtained a number of part-time positions.
In November 2011, a claim was made on behalf of Mr Britt by his solicitors against the respondent in respect of compensation benefits including weekly payments from 1 May 2008 and continuing, medical expenses and lump sums pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was declined.
The dispute concerning Mr Britt’s entitlement to compensation came before the Commission following the filing of an Application to Resolve a Dispute in February 2012 (the Application). That Application came before Arbitrator William Dalley on 18 June 2012. The matter was subsequently relisted before the Arbitrator on 20 July 2012, at which time further submissions were put on behalf of the parties. The Arbitrator reserved his decision and a Certificate of Determination, accompanied by a statement of reasons (Reasons), issued on 22 August 2012 which provided:
“The Commission determines:
1. Award for the respondent in respect of the claims based on injury in the course of employment on 18 May 2005.
2. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The written submissions which accompany the Application made with respect to this appeal do not explicitly state, as is required by Practice Direction No 6, those grounds upon which the appeal is brought. There are five enumerated paragraphs which appear under the heading “Notice of Appeal” each of which suggest error on the part of the Arbitrator concerning his expression of opinion and concerning findings said to have been made by him in the course of his Reasons.
It is reasonably clear that the appellant complains of error on the part of the Arbitrator in the following respects:
(a)     concluding that the evidentiary onus upon the respondent concerning causation of incapacity had been discharged;
(b)     finding that the “incident of 18 May 2005” did not give rise to any incapacity after June 2005;
(c)     in finding that it was likely that Mr Britt returned to work on 11 June 2005 without evidence of any restriction;
(d)     in finding that the submission of the respondent more closely corresponds to the facts concerning causation than those submissions put on behalf of Mr Britt, and
(e)     in finding that Mr Britt suffered a pre-existing degenerative condition in his neck which was rendered symptomatic from time to time.

ON THE PAPERS

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

THRESHOLD MATTERS

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

PRELIMINARY MATTER

By reason of the failure of a recording device utilised by the Commission the transcript of proceedings conducted before the Arbitrator on 18 June 2012 is incomplete. The recording failed during counsel’s submissions. No oral evidence was adduced on that occasion.
A transcript (T) has been produced of that portion of the proceedings on that day which had been successfully recorded. Once the failure of the recorder came to the Arbitrator’s notice he summarised those submissions put by counsel (between T11 and T15).
Following receipt of the transcript by Mr Britt’s solicitors after commencement of this appeal, the following “additional submissions” were put:
“1.     The Appellant is now in receipt of what Transcript of the Hearing is available.
2.     Most of the Arbitration Hearing is not recorded.
3.     The Appellant says it is severely prejudiced in the preparation and maintenance of this appeal.”
As may be seen those submissions did not address the question as to what course should be adopted by the Commission on this appeal having regard to the absence of a complete transcript.
The respondent, in submissions filed in answer to Mr Britt’s additional submissions, argues that the summary of submissions put by the Arbitrator, which is recorded, was made in the presence of Mr Britt’s counsel. It is put that Mr Britt thus had an opportunity to correct the Arbitrator’s summary and to make any further submissions. Such opportunity was not taken up.
It is further put by the respondent that Mr Britt’s solicitor was present at the arbitration hearing and, further, that “it is difficult to comprehend the basis upon which [Mr Britt] says that [he] is ‘severely prejudiced’ in preparation of the appeal”.
The absence of a full record of proceedings before the Commission has arisen in the past in circumstances where an appeal has been brought from the Arbitrator’s decision. Such a circumstance was considered by the Court of Appeal in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358 where it was stated by Bryson JA (with whom Handley JA and Bell J agreed) at [32]:
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
Having regard to the complaint made on behalf of Mr Britt concerning the deficient record of proceedings, it is necessary to determine whether the absence of a complete record so impedes the conduct of this appeal that, rather than proceeding to a conclusion concerning those matters raised on appeal, there should be a remitter of the matter for rehearing.
There is before the Commission a summary, as earlier noted, of those submissions which had not been sound recorded. That summary by the Arbitrator was made and recorded in the presence of the parties. No objection was taken to the course adopted by the Arbitrator nor to those matters then stated by him.
The Arbitrator’s Reasons include a summary of matters raised by the parties in submissions before him (between [77] and [80]).
Each party has provided submissions on this appeal. Those submissions put on behalf of Mr Britt, in part, restate argument raised before the Arbitrator as summarised by him in his Reasons and as recorded at the hearing.
Having regard to the availability of the material which I have above noted, I am of the opinion that conduct of the appeal is not materially impeded by the deficiency found in the transcript of proceedings. I note, as argued on behalf of the respondent, that Mr Britt has not identified the prejudice to which, he suggests, he is exposed by reason of that deficiency. In the circumstances, I conclude that justice does not require that the matter be remitted for rehearing and that the appeal should proceed.

THE ARBITRAL PROCEEDINGS

The documentary evidence which was before the Arbitrator was summarised by him at [16] of Reasons. It was noted (at [18] of Reasons) that the respondent admitted that [Mr Britt] had suffered an injury to the neck in the course of his employment on 18 May 2005.
The Arbitrator recorded Mr Britt’s submission that his “current symptoms and restrictions flowed directly from the effects of [surgery] carried out by Dr Parkinson on 25 March 2006”. The respondent, the Arbitrator noted, did not dispute that proposition, but argued that “the incident on 18 May 2005 was not causally related in any relevant sense to the subject operative treatment in March 2005 (at [19] and [20] of Reasons).
It is convenient firstly to attempt a summary of the Arbitrator’s consideration of the evidence as recorded in his Reasons. That evidence, in part, comprised a large volume of records concerning the medical treatment of Mr Britt over a period of years. Also considered were two statements made by Mr Britt concerning relevant events and the reports of expert medical witnesses who had been qualified to provide opinions for the purpose of the litigation.
That evidence was carefully and thoroughly considered by the Arbitrator (between [26] and [68] of Reasons). The Arbitrator, as will be seen, later acknowledged Mr Britt’s submissions concerning “the approach to be taken” when considering evidence which comprises contemporaneous notes of medical practitioners (at [79] of Reasons).
As is made clear by the Arbitrator’s analysis of the material before him, there was a significant body of evidence which suggested firstly that Mr Britt had experienced recurrent neck pain over a long period of time, including at times earlier than May 2005 and, secondly, that histories recorded by medical practitioners at or about the time of the subject injury conflicted with the history of injury, as alleged by Mr Britt, being onset of pain as he was carrying his luggage.
Among those matters noted by the Arbitrator were that:
(a)     the Adelaide general practitioner, Dr Perrott, had on 19 May 2005 recorded “muscle spasm ++” and “acute aggravation of chronic neck pain”;
(b)     Mr Osling, chiropractor, had on 21 May 2005 recorded “four days pain neck”. The notes of Mr Osling also had an entry made on 24 May 2003 being past history “C5 wry neck six years”. A diagram of the body was shaded at the left side of the neck and the shoulder, and earlier history was recorded as “car accident – whip lash – manipulated – pain and swelling”. Other entries in 2003 were noted included complaint of pain for one week “C3⁺ and C5⁺” and “upper thoracic vertebrae”;
(c)     a history was recorded by Dr Workman in correspondence to Dr Bryant dated 1 June 2005 concerning complaint of pain in neck “consistent with a wry neck” and that “there was no trauma preceeding this sudden pain however David stated it began with him watching tv in bed and lifting his head two weeks ago. He states he felt this ‘go into spasm’ at the time”;
(d)     the treatment notes of South Sydney Sports Medicine included an entry dated 2 June 2005 concerning presenting symptoms “neck – left shoulder 2/52”. History recorded was “lying in bed tv – lifted head pain with [illegible] and ↑ pain”;
(e)     correspondence dated 3 June 2005 from Dr Bryant to Dr Workman concerning consultation on 2 June 2005 recorded pain in neck and left shoulder present for two weeks. Mr Britt had stated that he had been lying in bed watching tv and lifted his head and felt a “twinge” which increased over the next 30 minutes. He had experienced neck pain about four to five years earlier. This settled over a few months;
(f)     on 10 June 2005, Dr Bryant reported to Dr Workman concerning a consultation on that day concerning “neck injury which occurred on a work trip to Adelaide. Improvement was reported. He had reduced, but improved movement of his cervical spine”, and
(g)     Dr Bryant’s practice notes record a consultation on 9 February 2006 as follows: “Neck 18/12/05 – colonoscopy → That night neck [illegible]”. Referrals to physiotherapy, CT scan and Dr Loeffler are recorded. Also recorded in those notes was hospitalisation on 19 January 2006 for four days. Home bed rest for 10 days. Guided injection by Dr Burgess at Mater Hospital. A request for a second opinion by Dr Parkinson. The next entry is dated 13 January 2007 which records anterior cervical discectomy at C5/6, Dr Parkinson.
The Arbitrator noted a history as recorded by Dr Parkinson in a report he sent to Dr Bryant dated 17 February 2006 following notation of disc protrusion at C5/6 as follows:
“Following colonoscopy on 18 December, Mr Britt woke up with pain in his neck and in his left arm. The pain has been predominately over the dorsum of his arm and the radial border of his left forearm, to the tips of his thumb and index fingers of the left hand. He has noticed some weakness. He often wakes up with a pain in a C6 type distribution … David says he had a similar episode with left brachalgia as well in 1994.”
I note in passing that in that same report, Dr Parkinson reported to Dr Bryant “he has no past history of any particular neck injury”.
The notes relating to treatment of Mr Britt at Taylor Square Private Clinic were summarised by the Arbitrator. Matters noted included a history, recorded on 30 May 2005 by a psychologist, of anxiety, “reports panic attacks. 1999 use of benzodiazepam (intermittent) from 1992 (1980?) related to neck complaints”.
The Arbitrator noted that Mr Britt consulted that last mentioned clinic regularly throughout 2005 concerning an unrelated medical condition. The Arbitrator noted that the record demonstrated that at that time Mr Britt was having “a difficult time with his treatment and medication” (at [41] of Reasons). The notes recorded digestive problems in August 2005 extending into September and an appendectomy at St Vincent’s Hospital on 11 October 2005 is noted. No neck complaint is recorded in five consultations between July 2005 and 2 September 2005.
The clinic notes, as noted by the Arbitrator, include a record made on 19 September 2005 “also complaining of pain in the left side of his neck – start 15/9/09”.
Subsequent entries in those notes are noted by the Arbitrator including “medication for neck; muscle spasm from 20 November 2005; extensive spasm left neck/trapezius – shoulder – upper arm occurring periodically over the past five years – relieved with massage and acupuncture and Panadeine Forte and Valium. No relief with Mobic”, and an entry on 21 December 2005 that Mr Britt had been “on Valium for neck spasm starting 20 December 2005 – had colonoscopy and endoscopy”.
The clinic’s notes, as noted by the Arbitrator, record conduct of CT scan and MRI scan of the neck and regular references thereafter to problems with the neck leading to the surgery.
The Arbitrator recorded (at [48] of Reasons) that Dr Tomlins (of that clinic) provided on 21 April 2006 an initial WorkCover medical certificate certifying unfitness due to neck injury “travelling carrying laptop”. The balance of the medical evidence and medical records were also summarised by the Arbitrator. Where relevant that evidence is discussed below.
The first of the two statements made by Mr Britt dated 29 January 2012 describes onset of neck pain on 18 May 2005. As noted by the Arbitrator, Mr Britt stated that the pain, including pain radiating down his left arm, came on in Perth as he was carrying his luggage and work equipment back to the hotel. Treatment in Adelaide is described. He further stated that in Sydney he sought treatment (Dr Workman and Dr Bryant) and that in October 2005 the symptoms returned and that he went to Prince of Wales Hospital for diagnosis. He states he was admitted under Dr Loeffler for two to three weeks and thereafter treated as an out-patient. The operative treatment by Dr Parkinson was also noted in that statement.
The Arbitrator noted the following extract from the second statement dated 15 May 2012:
“From about 2004 I began to experience pain in the region of my neck. This usually disappeared overnight with rest. I had intermittent physiotherapy and chiropractic treatments. I would have had approximately 5 treatments.
In about early 2005 the pain in my neck would sometimes be present for a full day, even after evening rest. I began to be cautious about how much I carried and my schedule and consequent stress. This was not always possible as I often had a lot to do in a short period of time.
I suffered injury to my neck, left shoulder and arm at work on 18 May 2005 and had some time off work, later returning on modified duties. I could not maintain my previous level of work and was retrenched in May 2007.”

Submissions before the Arbitrator

The primary arguments raised before the Arbitrator have been noted above at [26]. It was Mr Britt’s case that incapacity resulted from the effects of the surgery and the restrictions necessarily imposed by the fusion at the cervical level. It was implied in this submission that the need for the surgery arose by reason of the subject injury.
It was also argued that conflict between accounts given to doctors concerning the onset of pain on 18 May 2005 was to be explained having regard to the medication he was taking with respect to his unrelated medical condition. Confusion and memory problems, it was put, may have been a consequence of ingestion of Valium and other mood altering substances.
Argument was advanced by Mr Britt that, having regard to the authorities cited concerning the manner in which evidence of medical practitioners’s notes is to be considered, caution must be exercised by the Commission when the weight of that evidence is being determined. The authorities relied upon included: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; 4 DDCR 358; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; Mastronardi v State of New South Wales [2009] NSWCA 270 and Mason v Demasi [2009] NSWCA 227.
Mr Britt’s counsel made reference to authorities including the decision in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 in support of the argument that the surgery was to be seen, as a matter of common sense, as having been caused by the events of 18 May 2005. It was put that the colonoscopy was not of particular significance.
Counsel for the respondent argued that the evidence established that the May 2005 incident was one of a series of incidents going back over many years and that, as had occurred on earlier occasions, the effects of that injury had resolved within a short space of time as evidenced by Mr Britt’s return to work and the absence of complaints to doctors thereafter. It was put that Mr Britt suffered a new onset of severe neck pain on waking up from an unrelated procedure in December 2005.

The Arbitrator’s Decision

It was accepted by the Arbitrator that the conflicting accounts concerning that which occurred on 18 May 2005 “may suggest some type of mental confusion”. In his Reasons, the Arbitrator makes mention of other evidence, being the apparent error made by Mr Britt concerning the date and period of admission to the Prince of Wales Hospital, which may demonstrate such confusion (at [81] of Reasons).
Given his view concerning “confusion in [Mr Britt’s] ability to recall events accurately” the Arbitrator determined that it was necessary “to rely on the medical and chiropractic records to arrive at conclusions as to the correct history” (at [83] of Reasons).
The Arbitrator stated, following a consideration of relevant records, that it was “clear from that evidence that [Mr Britt] had suffered from episodes of neck pain at the level of C5/6 for years prior to the incident on 18 May 2005”. That conclusion was stated to have been reached following the exercise of caution, the need for which had been argued by Mr Britt. The Arbitrator expressed the view that it would be extremely unlikely that Mr Osling, Dr Bryant, Dr Tomlins and the psychologist were mistaken in their recording of that history.
The Arbitrator considered the evidence of Dr Leitl, whose opinion was relied upon by Mr Britt. That practitioner’s view was that Mr Britt’s employment had “contributed significantly to the development of the left C5/6 disc prolapse and aggravated pre-existing C5/6 disc degeneration”. The Arbitrator noted that Mr Britt “did not base his case on allegations that his neck condition was due to tasks carried out by him in the course of his employment” (at [93] of Reasons).
The Arbitrator concluded that the opinion of Dr Hughes, whose report had been tendered on behalf of the respondent, that there was a causal connection between the injury in May 2005 and the disc lesion as diagnosed, could not be given any weight as it had been based on a misconception concerning Mr Britt’s pre-injury history of symptoms.
At [94] of Reasons the Arbitrator found that Mr Britt suffered injury to his neck on 18 May 2005 which was incapacitating for a time. Such finding was made, as stated by the Arbitrator, notwithstanding that the evidence was “equivocal as to the immediate cause”.
The Arbitrator concluded that the evidence established that Mr Britt had experienced problems with his neck prior to 18 May 2005 “going back over a number of years”. It was further found that the injury in May 2005 did not “appear to give rise to any incapacity after 10 June 2005”.
Following reference to relevant authority concerning the jurisdiction of the Commission to determine questions concerning causation and liability, the Arbitrator found that:
"I am satisfied on the balance of probabilities that the effects of the injury suffered on
18 May 2005 had resolved prior to December 2005 and no impairment or incapacity was attributable to that frank injury after that time. There is no impairment attributable to the frank injury on 18 May 2005 which could be the subject of a referral to an AMS.” (At [113] of Reasons).
The Arbitrator proceeded to enter the award which is noted at [7] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
I have earlier, at [8] above, noted the deficiencies to be found in the Application prepared on behalf of the appellant concerning this appeal. Those deficiencies are compounded by the fact that the submissions which have been furnished are not directed to any particular ground upon which the appeal is brought. Those submissions include a narration of the evidence and observations are made concerning the Arbitrator’s reasoning. In the course of this dissertation the author makes observations and comments concerning the Arbitrator’s decision. Such comments and observations often fall short of an express statement or contention of error on the part of the Arbitrator. By way of illustration, it is put at [17] of those submissions that:
“There is no [sic, evidence] of any sort that [Mr Britt] suffered any injury to his neck on 18 December 2005. It is submitted that a colonoscopy is a very passive procedure and would not in any way have interfered with the applicant’s neck”.
The “submission” I have quoted immediately above is of no assistance in determining whether the appeal brought on behalf of Mr Britt has any merit. The relevance of the colonoscopy was treated by the Arbitrator as limited to a matter of history, specifically, that Mr Britt had reported to those treating him a recurrence of neck pain immediately following that procedure. No finding, as seems to be suggested, was made in respect of the relevance of that procedure to causation of relevant incapacity. The appearance of symptoms at that time was yet another demonstration of recurrent neck pain having been experienced by Mr Britt over the years. The “submission” must be disregarded.
A further illustration of the unhelpful nature of these submissions may be found at [27] where it was put:
“It is submitted that the Arbitrator erred in finding there were conflicting accounts of what occurred on 18 May 2005; see paragraph 81. There is no issue that [Mr Britt] suffered injury on 18 May 2005 and this was accepted by Counsel for the respondent at the hearing of the matter. Injury was not in issue. It was not open for the Arbitrator to find ‘the contemporaneous complaint was of neck pain noticed while watching television in bed and it was only some months later that the account was given of carrying bags’; see paragraph 81”.
It is clear beyond doubt that the Arbitrator has made a finding that the evidence reveals conflicting versions of what occurred on 18 May 2005. That finding was based upon the evidence as a whole including the contemporaneous histories as recorded by those treating Mr Britt, both in Adelaide and Sydney, immediately following the onset of symptoms at that time. The submission that there was “no issue that [Mr Britt] suffered injury on 18 May 2005” is correct and that fact was acknowledged by the Arbitrator (at [94] of Reasons). The Arbitrator’s findings that the contemporaneous complaint concerned onset of symptoms whilst watching television in bed and that the bag carrying incident was reported “only some months later” were, contrary to the assertion made in submissions, open to be found by the Arbitrator. Such findings concerned the state of the evidence rather than the fact and circumstances of injury. I have earlier noted that the Arbitrator accepted that Mr Britt had been in a state of some confusion and that the fact of injury as alleged had been conceded by the respondent.
With respect to the appellant’s complaints which I have attempted to summarise at [9] above, it is my opinion that:
(a)     the evidence relied upon by the respondent concerning the long history of recurrent neck pain requiring treatment was sufficient to permit the Arbitrator to conclude, as he did, that any evidentiary onus upon the respondent concerning causation had been discharged;
(b)     the finding that the incident of 18 May 2005 did not give rise to any incapacity after June 2005 was founded upon the evidence which demonstrated that no complaint had been made concerning neck disability for months following Mr Britt’s apparent return to work and, it must be noted, in the absence of any evidence from Mr Britt of such ongoing disability other than his uncorroborated statement, made in May 2012, that he returned to work on “modified duties” and that he “could not maintain [his] previous level of work”;
(c)     finding of return to work likely on 11 June 2005 without evidence of restriction was open on the evidence and demonstrates the Arbitrator’s preference for the inference available to be drawn from the medical evidence and notes as against the late evidence in the May 2012 statement which was uncorroborated;
(d)     the Arbitrator’s acceptance of the respondent’s argument concerning causation was, as discussed above, open on the evidence and no error is demonstrated, and
(e)     there was abundant evidence, including that of Dr Leitl and Dr Hughes, that Mr Britt suffered a pre-existing degenerative condition in his neck and that his neck had become symptomatic from time to time.
It is reasonably clear that the substance of the complaint raised on this appeal is that the Arbitrator has erred in fact in concluding that “the effects of the injury suffered on 18 May 2005 had resolved prior to December 2005 and no impairment or incapacity was attributable to that frank injury after that time” (at [113] of Reasons).
In reaching the conclusion noted immediately above, the Arbitrator had carefully evaluated the evidence and had stated his reasons. The Arbitrator placed reliance upon the contemporaneous histories, particularly those records that demonstrate an absence of complaint of neck symptoms for a period of months following Mr Britt’s apparent resumption of work in June 2005. Mr Britt’s arguments concerning the weight of such evidence were taken into account. The Arbitrator’s rejection of the evidence of Dr Hughes concerning causation of the disc lesion was founded upon his view that such evidence had little weight given the flawed history recorded by that practitioner. The Arbitrator’s reasons make clear that Dr Leitl’s opinion as to causation does not support a conclusion concerning causal nexus to the May 2005 injury, but rather that practitioner attributes the abnormality treated by Dr Parkinson to the nature and conditions of Mr Britt’s employment. The Arbitrator’s view concerning the evidence and his ultimate finding were, in my opinion, open to him on the evidence and no error has been demonstrated on this appeal. In the circumstances the Arbitrator’s decision must be confirmed. Appropriate orders appear below.

DECISION

Paragraphs one and two of the Arbitrator’s determination found in Certificate of Determination dated 22 August 2012 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Deputy President
12 December 2012

I, MARGOT UNDERCLIFFE, 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