Buraga v NSW Police Service

[2009] NSWWCCPD 102

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Buraga v NSW Police Service [2009] NSWWCCPD 102
APPELLANT:		Genoveva Buraga
RESPONDENT:		NSW Police Service
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-9216/08
ARBITRATOR:	Dr J Keogh
DATE OF ARBITRATOR’S DECISION:		9 April 2009
DATE OF APPEAL DECISION:		20 August 2009
SUBJECT MATTER OF DECISION:		Causation; sufficiency of reasons.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:		Firths – The Compensation Lawyers
Respondent:		DLA Phillips Fox
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 9 April 2009 is revoked and the following decision is made in its place:
“1. Award for the Respondent.
2. No order as to costs.”
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.Gina Buraga (‘the worker’) was employed by the NSW Police Service (‘the Respondent’) between 1995 and 2007.  The worker, who is fifty years of age, was employed as an Administrative Officer and her duties involved clerical work and copy typing. It is alleged that the worker suffered injury in the course of her employment. That injury has been described as “occupational overuse injury affecting both wrists, hands, neck and shoulder.” The worker accepted voluntary redundancy of her position in May 2007. In July 2007 she completed a workers compensation claim form alleging injury to her hands, neck and shoulder. That form did not contain detail of any benefits claimed. On 4 September 2008 a letter of demand was forwarded to the Respondent on behalf of the worker by her solicitors. That correspondence claimed a lump sum in respect of an alleged Whole Person Impairment (‘WPI’).

2.A dispute arose between the parties concerning such claim and, on 19 November 2008, an Application to Resolve a Dispute (‘application’) was filed with the Workers Compensation Commission (‘the Commission’). The matter was listed for arbitration/conciliation before an Arbitrator on 11 March 2009. A determination of the dispute was made by the Arbitrator and a Certificate of Determination issued on 9 April 2009.

3.On 7 May 2009 an Appeal Against the Decision of Arbitrator was filed on behalf of the worker in respect of that determination.

THE DECISION UNDER REVIEW

4.The ‘Certificate of Determination’ dated 9 April 2009 records the Arbitrator’s orders as follows:

“The Commission determines:

1.     A finding that the Applicant did not suffer injury to her upper left extremity (left shoulder) and cervical spine arising out of or in the course of her employment with the Respondent.

2.     Respondent to pay the Applicant’s costs as agreed or assessed.”

5.It may be seen that the Certificate of Determination recites the Arbitrator’s finding that the worker “… did not suffer an injury to her left upper extremity (left shoulder) and cervical spine arising out of or in the course of her employment with the Respondent.” The Arbitrator has not expressly entered an award in favour of the Respondent. It may also be seen that, notwithstanding the unsuccessful outcome of the worker’s application, the Respondent has been ordered to pay the worker’s costs. These matters are addressed more fully hereunder.

6.There is before the Commission an Amended Statement of Reasons for Decision (‘Reasons’) which were made by the Arbitrator in respect of the determination.

ISSUES IN DISPUTE

7.The issues in dispute in the appeal are whether the Arbitrator erred in the following respects:

(1)     the manner in which the issue of “injury” within the meaning of the Workers Compensation Act 1987 (the 1987 Act) was determined;

(2)     in finding that the worker had not suffered an injury within the meaning of the 1987 Act;

(3)     in rejecting the worker’s evidence in the absence of any adverse finding as to her credit;

(4)     in failing to “have due regard” to the evidence contained in the worker’s statement and to the “detailed histories” recorded in the medical evidence;

(5)     in finding that there was insufficient medical evidence to support the worker’s case;

(6)     in finding, as recorded at [33] of Reasons, that there was insufficient evidence to establish that the worker received an injury;

(7)     in failing to provide “adequate” reasons for his finding that the worker “had not sustained an injury within the meaning of the Act”;

(8)     in failing to provide “adequate” reasons for his “apparent” rejection of the worker’s evidence concerning the “onset and continuation of her symptoms”;

(9)     in failing to provide “adequate” reasons for concluding that there was insufficient medical evidence to “support the worker’s case”.

8.The issues as set out above are a summary of those matters which appear at paragraph 2.9 of the worker’s noted application under the heading “Grounds of Appeal”.

ON THE PAPERS REVIEW

9.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.”

10.Having regard to Practice Directions Numbers 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 those 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. 

LEAVE

11.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

12.The worker’s application concerning this appeal was received in the Commission’s Registry on 7 May 2009. The appeal was thus made within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

13.The amount of compensation at issue in the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.

14.The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the worker to appeal to the Commission.

EVIDENCE

15.The documentary evidence before the Arbitrator was summarised by him at [9] of Reasons. That summary does not include a number of documents relied upon by the worker which were attached to her original application. The documents not mentioned are:

i)       Copies of correspondence dated 4 September 2008 forwarded by the worker’s solicitors to the Respondent and its insurer.

ii)      Copy of Permanent Impairment Claim (five pages) signed by the worker dated 22 August 2008 which was enclosed with that letter of demand forwarded to the insurer.

iii)     Copy of correspondence from the insurer to the worker dated 22 August 2007 which appears to be a response to the Workers Compensation Claim Form completed by the worker on 2 July 2007.

16.There is before the Commission a transcript of evidence recorded during the course of the hearing before the Arbitrator (‘transcript’). That transcript records the submissions put on behalf of each party by counsel then appearing. As noted by the Arbitrator at [11] of Reasons, no oral evidence was adduced at that hearing.

17.The evidence relied upon by the worker comprised a statement made by her on 7 October 2008, copy correspondence from Dr Lea-Anne May, consultant rheumatologist dated 27 June 2007 to Dr Garrick, reports of Dr W G D Patrick, surgeon, dated 25 October 2007 and 22 January 2008 and numerous documents, the content of which, where relevant, is addressed below.

18.The worker described her duties whilst employed by the Respondent between [7] and [12] of her statement. She was a full time employee working initially in the “accounts payable” section. Her duties required preparation of handwritten vouchers during approximately one half of each day following which she would be engaged in data entry using a computer. There was also a small amount of filing required during the course of a day. When working at a computer the worker was required to copy-type information from documents into “the system”. No document holder was required and the task was performed with her arms outstretched onto the keyboard and involved the turning of her head to the left for the purpose of reading the document which was being copied.

19.The worker states that in approximately 2002 she first experienced pain in her neck and in her shoulders into her arms during the course of her work and towards the end of her shift. It is stated that the neck pain became progressively worse which led the worker to consult a general practitioner. Various investigations were arranged as well as a referral to Dr Bentivoglio.

20.The pain described by the worker subsided over weekends however upon resumption of work there was a recurrence of pain in the neck, shoulders and arms. During the last two years of her employment with the Respondent the worker was required to do only data entry computer work and during that period the pain and discomfort became “worse”. It is stated that in approximately mid 2005 the worker reported her discomfort to her supervisor Mr David Dabscheck.

21.The worker states that there was no change to her workplace equipment notwithstanding discussions concerning provision of an “ergonomic chair”. Her symptoms worsened which caused her to have “the occasional day off to try and recover”.

22.The worker stated that organisational changes occurred at her workplace in 2007 and, having regard to her ongoing pain, she accepted a “redundancy” that had been offered by the Respondent. That redundancy took effect on 5 May 2007 following which the worker had five months off work. During that period the pain experienced by the worker reduced but “never disappeared”. The worker resumed employment as an Administrative Assistant employed by an organisation described as ‘BOC’. The worker describes her duties with that employer and states that her painful symptoms have not become worse since commencing that employment. Her current work regime is casual employment for three days per week.

23.The worker relied upon the following medical evidence in support of her claim:

i)       letter dated 27 Jun 2007 from Dr Lea-Ann May, consultant rheumatologist, to Dr R Garrick, neurologist. This correspondence appears to be a letter of referral to Dr Garrick and contains the following summary of relevant history –

“Thank you for seeing Genoveva Buraga who presents with a 2 year history of hand pain, particularly on the right side. This seems to have been worse in the last few months. She describes numbness in her hands, particularly at the fingertips. This is worse after sustained activity such as holding a steering wheel. Symptoms are not felt in a typical median nerve distribution or ulnar nerve distribution. There is no arm pain and, in particular, no shooting pain up or down the arm. However she does have a history of neck pain for more than 2 years. This is worse on the right side. There is no history of neck injury. There is no tingling, burning, crawling sensations or shooting pains. She has occasional headaches. She has some mid-back pain and stiffness. She plans to travel overseas in 1 month. Peripheral circulation and pulses are normal. There are no bruits. Adson’s sign is negative. There is no tenderness at joints. There is no soft tissue swelling or effusion to suggest inflammatory arthritis. There is tenderness at the cervical spine, particularly at the right level and particularly from C3 to C5/6 levels. There is also tenderness through the upper thoracic spine area and significant passive and active thoracic spine and shoulder girdle hypomobility. There is no weakness. There is no wasting and there is no sensory loss or reflex change. There are no specific findings for carpal tunnel syndrome, peripheral neuropathy, radiculopathy or plexopathy. She has had previous investigations including CT scan and MRI scan of the cervical spine. These have shown degenerative changes and no significant nerve root or spinal cord pathology. These were most recently checked in June 2005. There was a concern on the CT scan at that time of soft tissue changes of the right C6/7 level suggestive of a disc protrusion but this was not confirmed on MRI scan. Blood test results include normal thyroid function tests.”

Later in that report Dr May made the following observation – “She is taking a break from her office work-type duties and this may also be beneficial.”

ii)      Report dated 25 October 2007 from Dr W G D Patrick. Dr Patrick was qualified by the worker’s solicitors to provide a medico-legal opinion in support of her claim against the Respondent. Dr Patrick obtained and recorded a detailed history which included a description of her keyboard work whilst employed by the Respondent. Dr Patrick noted the following:

“With the more intense keyboard work, which is quite “full on”, she began to develop significant symptoms. Symptoms commenced in about 2002, she believes. There was initially some discomfort and a feeling of weakness and also numbness, going into mainly the right upper limb. She is right hand dominant.”

Dr Patrick records detail of treatment received by the worker and the identities of treating doctors were noted. Those included Dr Paull, general practitioner, Dr Peter Bentivoglio, specialist neurosurgeon, Dr Anthony Yap, general practitioner, Dr Lea-Anne May and Dr Garrick, neurologist. Dr Patrick noted that “The situation was felt to be non surgical” immediately following reference to Dr Garrick. Dr Patrick, following physical examination of the worker and a review of radiological studies, expressed the opinion that the worker had “…sustained some occupational overuse injury affecting predominantly neck and left shoulder and upper limbs”. Dr Patrick proceeded to state that the worker “…also sustained some left cervico-brachial strain, and she probably has some mild work-related post-traumatic subacromial bursitis/impingement at the left shoulder, with continuing symptoms and signs here.” Dr Patrick expressed the view that the worker’s employment “… has been a substantial contributing factor to her injuries and continuing symptoms…”.

iii)     Report of Dr W G D Patrick dated 22 January 2008. This report makes reference to the earlier report and contains an assessment of Whole Person Impairment (‘WPI’) which was assessed as being 1 per cent in respect of the left shoulder and 6 per cent in respect of the cervical spine, the combined WPI being 7 per cent.

iv)     Report in respect of CT scan cervical spine by Dr Alison G Watts dated 27 May 2002 addressed to Dr Andrew Paull. Dr Watts comment in that report was – “Essentially a negative examination within the limitations of a plain CT scan”. The history recorded by Dr Watts was – “right arm weakness and numbness on two mornings.”

v)      Report of Dr Sharyn Rothwell addressed to Dr Paull in respect of CT cervical spine dated 20 May 2005. Dr Rothwell’s comment concerning that study was – “In the exit foramina on the right at the C6-7 level, there appears to be abnormal soft tissue. The appearance suggests a small far lateral focal disc protrusion with the potential to compress the exiting right C7 nerve root.” The history recorded by Dr Rothwell was of “… right sided neck pain and bilateral arm numbness.”

vi)     Report of Dr Graeme Hall dated 23 June 2005 concerning cervical spine plain film, CT and MRI of cervical spine. This report was addressed to Dr Peter J S Bentivoglio of the St Vincent’s Clinic Darlinghurst. Dr Hall concluded following an examination of that study that it had been a “normal examination”. No history was recorded in that report.

vii)    Report of Dr V Karen Ng, radiologist, concerning x-ray studies of both the worker’s hands conducted on 25 June 2007. This report is addressed to Dr Anthony Yap general practitioner. Dr Ng reported that bone density was normal, there was no evidence of any destructive or erosive type arthropathy. A clinical history was recorded as “bilateral hand pain”. The following observations were made by Dr Ng –

“In the left hand little finger, the PIPJ shows a mild flexion deformity which may be related to old trauma. Early degenerative change with articular osteophyte formation is seen at the left hand middle finger PIPJ.

In the right hand, a small subcortial cyst is evident at the distal pole of the scaphoid. Minimal spur formation is seen also towards the base of the lunate. Other small joints appear normal.”

24.The Accident/Incident Notification form which is a document bearing the insignia of the Respondent is undated however it is clear that document was completed at some time following termination of the worker’s employment in May 2007. In section 2A of that document the following description of accident/incident appears –

“RSI on both hands and neck/shoulder regions, comes and go [sic] since five and half years ago. Got worse two months ago, my GP and specialist said it’s RSI.”

25.The worker relied upon a workers compensation claim form dated 2 July 2007. That form included a description of injury as being “RSI on both hands and neck/shoulder area”. The date of the subject injury was stated as being “over the years”.

26.The Permanent Impairment Claim form referred to at [15(ii)] above recorded the date of injury as being 1 May 2002 and the “body system affected by the injury” was stated to be neck/shoulder and both hands. The whole person impairment claimed was 7 per cent. That document was dated 22 August 2008.

27.The letter dated 22 August 2007 from the Respondent’s insurer to the worker appears to be in response to the claim for permanent impairment however, confusingly, the correspondence makes reference to a claim for weekly payment and includes a statement of grounds for refusing commencement of provisional payment of weekly benefits.

28.The Respondent relied upon a report provided by Dr David Bornstein who had been qualified by its solicitors to provide a medico-legal opinion concerning the worker’s allegations of injury and resultant impairment. That report includes a statement that findings on examination “were completely negative both for carpal tunnel syndrome and any significant lesion in [the worker’s] neck.” Dr Bornstein appeared to accept that there may be an organic basis for the worker’s complaints however it was his opinion that her work for the Respondent was not a substantial contributing factor to the worker’s complaints.

SUBMISSIONS

29.It was submitted on behalf of the worker before the Arbitrator that acceptance of the worker’s evidence concerning circumstances in which she “noticed the pain and what she attributes the pain to” together with the report of Dr Patrick was evidence sufficient to discharge the onus upon her to prove her case. Her case, it was argued, was that the impairment assessed by Dr Patrick had been caused by her work. It was stated by counsel “…there are cases where causation can be a significant issue to be determined and have associated with it many complexities, but this is not such a case.” Counsel confirmed during the course of submissions that the claim “relates to both a whole person impairment in respect of the cervical spine and the left upper extremity, being the left shoulder”.

30.Counsel on behalf of the Respondent argued before the Arbitrator that, having regard to the state of the evidence, the worker had failed to prove that she suffered an injury namely an injury to the neck and to the left shoulder. The argument advanced highlighted the state of the evidence with particular reference to the absence of any evidence from Dr Paull. It was further put that, given the absence of any evidence from Dr Bentivoglio, the Commission was without assistance of relevant material concerning the occurrence or otherwise of injury as alleged. A similar submission was made with respect to the absence of any evidence from Dr Yap.

31.The Respondent’s submissions concerning the evidence of Dr May sought to emphasise the fact that her letter of referral to Dr Garrick stands alone in circumstances where it is known that Dr May was consulted on two further occasions thereafter by the worker. Counsel also highlighted the absence from evidence of the note Dr May had forwarded to a physiotherapist dated 25 July 2007 which was, apparently, in the hands of Dr Patrick at the time of his examination of the worker. Counsel further argued that, in the absence of any evidence from Dr Garrick, the Commission was “left guessing” as to what investigations  conducted by that practitioner revealed. It was fairly noted by Counsel that Dr Patrick had observed that the “situation” was considered non surgical.

32.The general thrust of the Respondent’s argument was that there was an absence of contemporaneous medical evidence concerning complaint of symptoms and the causal relationship of between the work performed by the worker and such symptoms.

33.On this appeal the worker challenges the Arbitrator’s determination upon the basis of nine separate “grounds”. It is proposed to summarise those submissions which are put in argument in respect of each of those grounds.

34.The worker expressed grounds 1 and 2 as follows:

1.     The Arbitrator erred in his analysis of what constitutes “injury” within the meaning of the Act.

2.     The Arbitrator erred in finding the worker had not suffered an injury within the meaning of the Act.

35.With respect to these first two grounds the worker argues that “a proper application of s. 4 would not permit” the Arbitrator’s conclusion expressed by the Arbitrator at paragraph 4 of his summary of findings found at page 8 of Reasons. The Arbitrator there stated –

“4.     After considering the available evidence I came to the conclusion that the Applicant had not suffered an injury affecting her left shoulder or cervical spine arising out of or in the course of her employment with the Respondent that would satisfy the definition of an injury in s4 of the 1987 Act.”

36.The worker argues that the Arbitrator has erred in that he concluded that “radiological support is a pre-requisite to establishing injury.” It is also the worker’s complaint that the Arbitrator did not address the question as to whether the worker’s injury was “a disease”. It is suggested in argument that the Arbitrator failed to identify those facts which led him to conclude that there was no injury. It is put that the Arbitrator has “not given any indication of what he actually found, thereby precluding an analysis of his approach to ‘injury’”.

37.Ground 3 is expressed as follows:

“3.     The Arbitrator erred in implicitly rejecting the Applicant’s evidence on certain matters without making findings in relation to the worker’s credit and in circumstances where her credit was not in issue.”

38.It is put that the worker’s credit “was not in issue.” Reference is made in submissions to the worker’s “uncontradicted statement” concerning the onset and continuation of symptoms. It is asserted that the Arbitrator ignored that evidence when determining the matter. It is put that the Arbitrator failed to make any finding with respect to “ the veracity of the histories and complaints recorded”. The worker complains that the Arbitrator’s Reasons reveal no “analysis” of the evidence and that there is no finding expressed by the Arbitrator with respect to the worker’s credit. It is further put that the worker “is left wondering whether the Arbitrator accepted or rejected her evidence”. Reference is made to various observations made by the Arbitrator in the course of his Reasons which, it is submitted by the worker, indicates that the Arbitrator may have rejected “crucial parts” of the worker’s evidence. It is suggested that, in the absence of “competing evidence” the Arbitrator “was obliged to accept the Applicant’s evidence”.

39.Grounds 4, 5 and 6 are expressed as follows –

“4.     The Arbitrator erred in failing to have due regard to the contents of the worker’s statement and the detailed histories provided by her to the doctors.

5.       The Arbitrator erred in finding (at paragraph 27) there was insufficient

medical evidence to support the worker’s case.

6.     The Arbitrator erred in finding (at paragraph 33) ‘there was simply a lack of medical or other evidence to support a conclusion of any reasonable basis that the applicant suffered the injuries in the course of her employment that were the subject of her complaints before me.’”

40.In support of those grounds, which appear to challenge the Arbitrator’s findings of fact, the worker makes reference to her evidence concerning the nature of her duties, which, it is said was not challenged by the Respondent however was not, it is argued, taken into account by the Arbitrator. Reference is made to the histories of “onset of symptoms and complaints recorded during examinations by various medical practitioners including Dr May, Dr Patrick and Dr Bornstein. It is submitted that the Arbitrator “overlooked” aspects of the histories when making his determination with respect to the occurrence of injury. It is submitted that the evidence contained in those histories “comfortably supports [the worker’s] case”. Reliance is placed upon the decision in Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153.

41.The worker in the course of submissions suggests that Dr Bornstein’s report is “self contradictory”. The opinion of Dr Bornstein is challenged as having “no reasonable basis for support of his conclusions.”

42.It is suggested that the Arbitrator “wrongly concluded that Dr Patrick’s diagnosis and opinion were without basis.” In support of that assertion the worker seeks to highlight that the opinion is one of an expert orthopaedic surgeon founded upon “uncontradicted history”, a clinical examination and review of radiological material. It is put that Dr Patrick’s opinion is not a bare conclusion. It is said that a “proper analysis of the material supports a finding in [the worker’s] favour on the balance of probabilities.”

43.Grounds 7 to 9 are expressed as follows –

“7.     The Arbitrator erred in failing to provide adequate reasons for his conclusion that the worker had not sustained an injury within the meaning of the Act.

8.       The Arbitrator erred failing to provide adequate reasons for his apparent

rejection of the worker’s account of the onset and continuation of her symptoms.

9.       The Arbitrator erred in failing to provide adequate reasons for his

conclusion that there was insufficient medical evidence to support the worker’s case.”

44.Reference is made in the course of submissions to the decision of Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Nominal Defendant v Kostic [2007] NSWCA 14 (15 February 2007 unreported) and Bale v Government Insurance Office of NSW [1997] 48 NSWLR 430. It is argued that the worker has a “justifiable sense of grievance” given that the Arbitrator’s Reasons do not disclose whether her evidence was rejected or otherwise. The complaint is made that if the worker’s evidence was rejected “there is no apparent basis for its’ rejection.” It is further suggested that the Arbitrator has failed to make express findings concerning “critical factual issues”. It is said that with respect to the worker’s evidence “one is left guessing” concerning the Arbitrator’s approach to acceptance or rejection of that evidence.

45.The general submission is put on behalf of the worker that the Arbitrator’s conclusions “are unsupported by adequate reasons”. It is said that the Arbitrator’s reasons “fall well short of what is required”.

46.The Respondent in its’ submissions on this appeal states plainly at the outset that it is accepted that the worker’s credit “was not in issue”. It is acknowledged by the Respondent that the worker’s case “was based upon an allegation of injury as a result of the nature and conditions of her employment”. It is stated plainly by the Respondent that there was no dispute concerning the nature and conditions of the worker’s duties.

47.The Respondent seeks to support the reasoning and conclusions of the Arbitrator concerning the issue of “injury” and makes specific reference to Reasons at [29] – [32]. It was there that the Arbitrator considered the evidence of Dr Patrick which, as stated by Counsel at the hearing, was the evidence which “proves the Applicant’s case”. It is argued that, having regard to the Arbitrator’s evaluation of Dr Patrick’s evidence, his conclusion that injury had not been proven was correct. Reference is made to relevant authority including South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421. It is put in argument on behalf of the Respondent that Dr Patrick’s expression of opinion has no “logical and probative” weight. It is upon this basis that the Arbitrator’s evaluation of Dr Patrick’s evidence was correct. It is put that the Arbitrator has thoroughly summarised the relevant evidence and “clearly identified that there was no basis upon which Dr Patrick reached the many conclusions with respect to diagnosis”. It is argued that the Arbitrator’s reasoning “was sufficient in the circumstances”.

DISCUSSION AND FINDINGS

48.Before dealing with the arguments raised on this appeal it is convenient to note the allegations concerning injury to be found in the worker’s application.   At Part 4 the following particulars appear:

“Date of injury:               01.05.02 and due to nature and conditions of employment

Injury description:           Occupational overuse injury affecting both wrists/hands, neck and shoulder.

Describe how injury occurred:    Due to the nature and conditions of employment. Developed pain over the years.”

49.It is clear, having regard to the state of the evidence relied upon by the worker and statements made in the course of submission by her counsel at the hearing that the injury alleged was limited to the worker’s “cervical spine and the left upper extremity, being the left shoulder”. There does not appear to have been any formal application to amend the allegation of injury as it appears in the application. It is clear that any allegation concerning injury to the worker’s wrists and hands had been abandoned. That abandonment occurred no doubt by reason of the state of the medical evidence relied upon.

50.The worker in the first two grounds of appeal has complained of error on the part of the Arbitrator in his approach to the question of proof of injury. The parties, in the manner of conduct of the matter, squarely raised the issue of “injury”. On the one hand the worker asserted a causal nexus between the physical demands of her day to day duties and the injuries ultimately alleged. It was made clear by counsel that the worker’s allegation with respect to the question of “injury” involved injury to the cervical spine and left upper extremity as found by Dr Patrick and described in his report which was in evidence. In its defence the respondent, through its counsel, argued that any causal nexus between the worker’s duties and any injury or disability identified or diagnosed by Dr Patrick was disputed.

51.The Arbitrator’s approach to this dispute is to be found between [24] and [33] of his Reasons. The Arbitrator commenced by citing the definition of “injury” as it appears in section 4 of the 1987 Act. He proceeds (at [25]) to cite a number of early authorities which concerned the proper construction and application of provisions of the 1926 Act, most of which concerned the concept of “injury” as defined in that Act in circumstances where the loss or incapacity alleged had involved a disease process. Those cases, whilst of historical significance, have little relevance to the issues raised by the parties concerning causal nexus between the worker’s duties and the injuries as alleged. That the matters set forth in [25] are of little relevance to the present matter is confirmed given the fact that the Arbitrator did not at any stage in the course of his reasoning consider the proof or otherwise of there being a disease process that may be relevant to a determination of the worker’s entitlement. In the circumstances I accept the worker’s submission that the Arbitrator’s approach to the fundamental issue in dispute between the parties reveals error. In the circumstances it becomes necessary to review the evidence to determine whether the Arbitrator’s ultimate conclusion was correct or otherwise (see State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 per Spigelman CJ at [30]).

52.It is necessary to examine the evidence to determine whether there is material of any evidentiary weight that supports the worker’s proposition that there is a causal nexus between work duties and her disabilities as diagnosed by Dr Patrick. The worker’s statement as noted at [19] above suggests that there was a temporal connection between work and the onset of symptoms in her neck and her shoulders and into her arms in 2002. That evidence alone does not prove “causation”. The evidentiary weight of that evidence would be greatly enhanced if there was contemporaneous expert medical evidence before the Commission which relates those symptoms felt in those parts of her anatomy to her duties. It is known that the worker at that time consulted Dr Paull, general practitioner, however, as noted by the Respondent’s counsel during the course of his submissions before the Arbitrator, no evidence from that practitioner has been adduced. It then becomes necessary to examine any evidentiary material that may be relevant to the circumstances of the worker’s health at that time.

53.The evidence concerning the CT scan conducted by Dr Watts in May 2002 noted at [23(iv)] revealed, it seems, no abnormality and it is of significance that Dr Watts recorded the history as being – “right arm weakness and numbness on two mornings.” It may be seen that the worker gains no comfort from the terse notation made by Dr Watts in making out her claim that treatment sought by her in that year was in respect of painful symptoms caused by her work conditions.

54.The worker states that during the last two years of her employment her pain and discomfort became “worse”. It seems that in 2005 the worker was consulting Dr Paull who again arranged radiological investigation being a CT cervical spine conducted by Dr Rothwell which is referred to in [23(v)] above. As earlier noted Dr Rothwell recorded a history of right-sided neck pain and bilateral arm numbness however there is no mention of any relationship between those symptoms and work conditions.

55.The worker, in the year 2005, apparently consulted Dr Bentivoglio who arranged the MRI study by Dr Hall as noted in [23(vi)] above. There is no evidence before the Commission from Dr Bentivoglio and, given the form in which Dr Hall’s report appears there is no evidentiary material concerning those consultations that tends to establish any nexus between the worker’s duties and cause or aggravation of her symptoms.

56.It may be inferred that by 2007 the worker was consulting another general practitioner Dr Yap. It was Dr Yap who arranged the radiological studies conducted by Dr Ng noted at [23(vii)] above. The only evidence other than that of the worker herself, concerning her then present complaints and need for treatment, is the brief notation made by Dr Ng under the heading “Clinical history” being “bilateral hand pain”. Such symptoms as recorded by Dr Ng do not correspond with the complaints that are summarised by the worker in her statement at [19] and [20] where it was said:

“19.   Some changes occurred at work in which all the work was going to be outsources to Allianz. At that time, because of the changes happening at work and my pain in my neck, shoulders and arms, I decided that I would take a redundancy that was offered.

20.    I took the voluntary redundancy on 5 May 2007 and following this time I had about five months off work as I felt that I needed a rest. During that time the pain in my neck, shoulders and arms although gradually reduced but never disappeared. It got to a level where it was constant but not as bad as it was working.”

57.The correspondence of Dr May addressed to Dr Garrick dated 27 June 2007 noted at [23(i)] above contains some detail of the symptoms complained of by the worker at about the time of her acceptance of redundancy. It appears that the principal complaint made at the time Dr May was consulted concerned numbness in her hands particularly in the fingertips. It was recorded that those symptoms were worse “after sustained activity such as holding a steering wheel.” Dr May recorded that there was no complaint of arm pain and, in particular, no shooting pain up or down the arm. It was noted that the worker had a history of neck pain “for more than two years”. The neck pain was worse on the right side. There was no history of neck injury. The only reference to occupational activity is to be found where Dr May observed – “She is taking a break from her office-type duties and this may also be beneficial”.

58.The evidence of Dr Patrick has been summarised at [23(ii)] above. It was that practitioner’s view that the worker had sustained an “…occupational overuse injury affecting predominantly neck and left shoulder and upper limbs”. Dr Patrick’s diagnosis with respect to the neck symptoms was that the worker had sustained “some left cervico-brachial strain”. With respect to the left shoulder Dr Patrick states by way of diagnosis that the worker “probably has some mild work related post-traumatic subacromial bursitis/impingement at the left shoulder.” As stated by counsel for the worker in the course of submissions before the Arbitrator, it was the opinion of Dr Patrick that the worker relied upon “…in terms of the applicant’s onus to prove her case on the balance of probabilities…”(Transcript page 5).

59.It is reasonable to infer that Dr Patrick has founded his opinion concerning diagnosis upon not only the history as recorded but his findings on examination.  There were some restrictions of movement demonstrated in the worker’s neck and left shoulder noted during Dr Patrick’s consultation. It is clear that Dr Patrick has drawn an inference from the history as recorded that the problems experienced by the worker are work related. The question is raised as to what weight should be given to that opinion. Dr Patrick’s examination of the worker took place some months after her cessation of work with the Respondent. There is nothing other than his findings on examination which lend support to diagnoses as expressed by him and, other than the worker’s description of her duties given as part of the history recorded, there was nothing before Dr Patrick that would suggest a nexus between the conditions diagnosed and her work duties.

60.I have reached the view that Dr Patrick’s opinion carries insufficient weight when considered with the totality of the worker’s case, including her own evidence, to discharge the evidentiary onus concerning proof of a causal relationship between the worker’s duties with the Respondent and her symptoms. In the absence of any evidence, with the exception of Dr May’s correspondence and the radiological studies earlier summarised, from those practitioners who attended the worker during the currency of her employment, that is Dr Paull, Dr Bentivoglio, Dr Garrick and Dr Yap, the evidence of the worker concerning her work duties is not sufficient to discharge the onus concerning causal nexus. It is my view that the worker has failed to make out her case. The Commission is here dealing with an examination of events which have occurred over a period of many years and it must be stated that the standard of proof in such circumstances is such that more comprehensive and persuasive evidence is required than factual assertions concerning work duties made by the worker and the qualified opinion of a medico legal expert. There should be an award for the Respondent.

61.In the circumstances it is unnecessary to consider the evidence relied upon by the Respondent. This is not a case where the Respondent’s medical case has been preferred to that case presented by the worker. I do note in passing that Dr Bornstein’s opinion is, with respect, of little value in determining the issues before the Commission given that it is plain that practitioner focused his attention during the course of his examination of the worker upon the existence or otherwise of a carpal tunnel syndrome and its cause. Such was not the case as presented by the worker.

62.Given the conclusion I have reached concerning the threshold question concerning proof of “injury” it may be seen that I am in agreement with the Arbitrator’s ultimate conclusion. It follows that the worker’s grounds as expressed in those numbered 3 to 6 inclusive must be rejected. With respect to grounds 7 to 9 inclusive it may readily be inferred from what I have earlier stated that I consider that the Arbitrator has failed to sufficiently state reasons for his conclusion.

63.The Respondent is entitled to an award in its favour. In the circumstances it is appropriate, on this review, to order revocation of of paragraph 1 as recorded in the Certificate of Determination. That paragraph is to be substituted with that which is noted below. The costs order made by the Arbitrator, noted in [4] and [5] above, was apparently made in error and must also be revoked. That order is to be substituted by one in terms as set forth below.

DECISION

64.The Arbitrator’s decision dated 9 April 2009 is revoked and the following determination is made:

“1.     Award for the Respondent.”

“2.     No order as to costs.”

COSTS

65.No order as to costs of this appeal.

Kevin O’Grady

Deputy President  

20 August 2009

I, MARIE JOHNS, 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