Calvary Home Care Services Ltd trading as Calvary Silver Circle v Vernon
[2020] NSWWCCPD 54
•27 August 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Calvary Home Care Services Ltd trading as Calvary Silver Circle v Vernon [2020] NSWWCCPD 54 |
| APPELLANT: | Calvary Home Care Services Ltd trading as Calvary Silver Circle |
| RESPONDENT: | Pauline Vernon |
| INSURER: | Catholic Church Insurances Ltd |
| FILE NUMBER: | A1-113/20 |
| ARBITRATOR: | Ms J Peacock |
| DATE OF ARBITRATOR’S DECISION: | 28 April 2020 |
| DATE OF APPEAL DECISION: | 27 August 2020 |
| SUBJECT MATTER OF DECISION: | Alleged factual error; the weight of evidence: application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; procedural fairness: application of Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 and related authorities |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr D Saul, counsel | |
| Astridge & Murray Solicitors | |
| Respondent: | |
| Mr G Barter, counsel | |
| Firths The Compensation Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave is granted to the appellant to appeal an interlocutory decision pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 28 April 2020 is revoked. 3. The matter is remitted for re-determination by another Arbitrator. |
INTRODUCTION AND BACKGROUND
Pauline Vernon (the respondent) was employed by Calvary Home Care Services Ltd (the appellant) as a casual support worker. She attended the homes of clients to provide home care, respite and personal care. This included domestic tasks such as cleaning, vacuuming, mopping, washing clothes, making beds and general cleaning. It included respite care such as making meals and ensuring clients were comfortable. It included personal care such as showering, toileting, dispensing medication, dressing clients and taking them shopping. The respondent stated that her shifts could be arduous with a lot of lifting.[1]
[1] Respondent’s statement 7/10/16, [5]–[8], Application to Resolve a Dispute (ARD), pp 76–77.
The respondent experienced right shoulder pain in February 2013 whilst vacuuming at work. She had medical treatment, and periods of working on restricted duties. She was eventually certified fit for her normal duties, although said that her right shoulder continued to bother her. She said the symptoms became “worse as time wore on”.[2] The respondent stated she had a “significant deterioration” of her symptoms at work while vacuuming on 3 July 2014. She had time off work, periods on selected duties and underwent rehabilitation. She came under the care of Dr Osborne, an orthopaedic surgeon. She ceased work from April 2015.[3]
[2] Respondent’s statement 7/10/16, [9]–[16].
[3] Respondent’s statement 7/10/16, [18], [28]–[30].
On 23 August 2017, the respondent underwent surgery to the right shoulder (arthroscopic acromioplasty) at the hands of Dr Osborne. The respondent stated that following this surgery she became “heavily reliant on [her] left arm to perform day to day tasks”. She stated that from approximately “two months following the surgery … [she] began experiencing pain into [her] left shoulder”. In September 2018 she declined a suggestion by Dr Osborne that she undergo surgery to her left shoulder.[4] On 10 April 2019 the insurer issued a s 78 notice declining liability for any consequential condition in the respondent’s left shoulder.[5]
[4] Respondent’s statement 19/9/19, [14]–[15], [22], ARD, p 82.
[5] Reply, pp 71–75.
The respondent was assessed at her solicitors’ request by Dr Patrick, a surgeon, who reported on 27 June 2016,[6] 24 April 2017[7] and 5 December 2018.[8] In the last of these reports the doctor assessed whole person impairment at 9 per cent (right upper extremity) and 10 per cent (left upper extremity), which combined to a total 18 per cent whole person impairment. The respondent was assessed at the insurer’s request by Dr Wallace, an orthopaedic surgeon, who reported on 1 February 2019.[9] Dr Wallace concluded the respondent had not suffered a work-related injury to her left shoulder. He also assessed that there was no whole person impairment in respect of the right shoulder injury. A claim for lump sum compensation on the basis of Dr Patrick’s assessment was rejected by the insurer in the s 78 notice dated 10 April 2019.
[6] ARD, pp 1–6.
[7] ARD, pp 10–11.
[8] ARD, pp 13–19.
[9] Reply, pp 1–10.
These proceedings are for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on the assessment of 18 per cent whole person impairment. They were listed for an arbitration hearing on 24 March 2020. Mr Barter appeared for the respondent and Mr Saul appeared for the appellant. Given the circumstances of the COVID-19 pandemic, and the consequential impact on the Commission’s procedural arrangements, the hearing was conducted remotely. The Arbitrator, the legal representatives, the respondent and her spouse, and a representative from the appellant attended by telephone.[10] The matter proceeded on the written material, counsel addressed, and the Arbitrator reserved her decision.
[10] Transcript 24/3/20 (T), T 1.30–36.
The Commission issued a Certificate of Determination dated 28 April 2020 accompanied by 13 pages of reasons.[11] The injury to the right shoulder was not disputed. The Arbitrator found the condition of the left shoulder was consequential to the right shoulder injury.[12] The matter was referred to an Approved Medical Specialist (AMS) to assess whole person impairment in respect of both upper extremities as a result of injury deemed to have occurred on 3 July 2014. This appeal is brought against that decision.
[11] Vernon v Calvary Home Care Services Ltd t/as Calvary Silver Circle [2020] NSWWCC 135 (Reasons).
[12] Reasons, [77].
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 both 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 pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
INTERLOCUTORY DECISION
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant raises the prospect that the arbitral decision may be interlocutory, on the basis it does not finally dispose of the rights of the parties. The appellant refers to the decisions in DP World Sydney Ltd v Kelly[13] and Campbelltown Tennis Club Ltd v Lee.[14] It submits that leave to appeal should be granted.[15] The respondent submits there are no interlocutory issues.[16]
[13] [2011] NSWWCCPD 43 (Kelly), [13].
[14] [2013] NSWWCCPD 50 (Lee), [22].
[15] Appellant’s submissions, [9]–[13].
[16] Respondent’s submissions, Pt A, [2.6].
The decision referring the matter to an AMS for assessment did not finally dispose of the rights of the parties and is appropriately characterised as ‘interlocutory’.[17] For the reasons relied upon in Kelly and Lee (which are referred to in the appellant’s submissions) I am of the opinion that it is necessary for the proper and effective determination of the dispute that leave be granted pursuant to s 352(3A). Leave is granted.
[17] Licul v Corney [1976] HCA 6; (1994) 180 CLR 213 (per Gibbs J), [11].
THE ARBITRATOR’S REASONS
The Arbitrator identified the issue before her as whether the respondent “suffered a consequential condition in her left shoulder as a result of her undisputed right shoulder injury”. The Arbitrator noted there was agreement that if the respondent succeeded, the matter should be referred to an AMS for assessment of whole person impairment. She noted agreement that if the appellant succeeded in resisting the allegation of a consequential condition of the left shoulder, it was entitled to an award in its favour on the lump sum claim.[18] The Arbitrator quoted from a summary of the principles dealing with proof of a consequential condition, in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan.[19] She described it as “well settled” that the respondent did not need to establish an ‘injury’ to the left shoulder within the meaning of s 4 of the 1987 Act; rather she needed to prove that the left shoulder symptoms and restrictions resulted from the right shoulder injury.[20]
[18] Reasons, [8]–[10].
[19] [2016] NSWWCCPD 23, [100]–[110].
[20] Reasons, [19]–[21].
The Arbitrator summarised and quoted from the respondent’s statements dated 7 October 2016 and 19 September 2019.[21] The Arbitrator referred to reports from Dr McQueen (the respondent’s general practitioner). She noted Dr McQueen said the respondent first consulted him about her left shoulder on 11 May 2018. She noted Dr McQueen’s opinion that the respondent had left shoulder subacromial bursitis, “presumably secondary from overuse, she has chronic [right] subacromial bursitis and favours her [left] arm”.[22] She referred to reports from Dr Osborne, who operated on the respondent’s right shoulder. Reports dated 30 October 2017, 11 December 2017, 23 January 2018 and 1 March 2018 were referred to; these made reference to the right shoulder but not the left. The Arbitrator noted a submission on the appellant’s part that right sided symptoms were not as restrictive as the respondent suggested, so the reliance on the left arm would not have been as heavy as the respondent suggested. She said that Dr Osborne’s report dated 3 September 2018 referred to worsening left shoulder symptoms.[23]
[21] Reasons, [24]–[27].
[22] Reasons, [29]–[30].
[23] Reasons, [32]–[42].
The Arbitrator said it was clear that there were residual signs and symptoms in the right shoulder following surgery. By September 2018, the respondent still suffered what Dr Osborne described as “moderate” pain. The left shoulder symptoms by then were described as “significantly worse”.[24] The Arbitrator referred to Dr Osborne’s final report dated 6 August 2019. The right shoulder was significantly better than the left. Dr Osborne considered it reasonable to consider arthroscopic acromioplasty of the left shoulder.[25]
[24] Reasons, [43].
[25] Reasons, [44].
The Arbitrator referred to the reports of Dr Patrick. When he first saw the respondent on 12 November 2015, her left shoulder demonstrated active motion that was full and free in all directions. The Arbitrator said this contrasted markedly with the findings on that doctor’s re-examination on 31 August 2018. The respondent then had “significant and rapidly worsening pain and stiffness” in the left shoulder.[26]
[26] Reasons, [46]–[51].
The Arbitrator said the respondent gave a consistent history of an onset of left shoulder symptoms in the recovery period after the right shoulder surgery. She consistently reported ongoing pain and restriction in the right shoulder, and that she was disappointed with the outcome of surgery to the right shoulder.[27] The Arbitrator referred to Dr Patrick’s conclusion that the respondent had suffered “significant consequential injury to her left shoulder as a consequence of favouring (sparing) the injured and operated right shoulder over a considerable period of time”. The doctor also said he causally related the respondent’s injuries “to both her right and left shoulder and ongoing symptomatology/disabilities to the nature and conditions of her employment”. The Arbitrator said that, reading Dr Patrick’s report as a whole, he clearly expressed his view that the condition of the left shoulder was consequential on favouring the injured right shoulder.[28]
[27] Reasons, [52]–[53].
[28] Reasons, [57]–[58].
The Arbitrator referred to Dr Wallace’s report, which she quoted at length.[29] She noted Dr Wallace’s view that the onset of left sided symptoms was “some two and a half years after she stopped work”. She said that Dr Wallace took a history of left sided symptoms in October 2017, “some two months after the surgery took place” but ignored that history to identify “an irrelevant relationship to the cessation of work”. She noted a statement by Dr Wallace that there is “no medical evidence to support the notion of overcompensation injuries”. She said the doctor did not reference this to medical or journal articles, it was stated without reference to any body of evidence. The Arbitrator said that she gave Dr Wallace’s report “very little weight”.[30]
[29] Reasons, [61]–[74].
[30] Reasons, [75].
The Arbitrator said that she weighed all of the evidence. The respondent was right hand dominant. The respondent said that she had right sided surgery in August 2017 and then had to rely heavily on her left arm. The Arbitrator said the respondent was not cross-examined about this evidence. The respondent did not report the left-sided symptoms until May 2018 when she told her general practitioner, Dr McQueen. The Arbitrator said that this delay was “not determinative” but was a factor that was weighed “in the balance with all of the other evidence”.
The Arbitrator said the respondent gave evidence of ongoing problems after the right shoulder surgery, which the surgery did not relieve. The Arbitrator said these were “well documented” in Dr Osborne’s reports. The Arbitrator said that Dr Osborne’s reports, viewed together, were consistent with the respondent’s evidence that there were ongoing right shoulder problems following the surgery. Dr Osborne noted the respondent was “left with moderate pain and that the result has been less than perfect”. The respondent was “not cleared to use her right arm without restriction until January 2018 some five months after surgery”. The Arbitrator noted the appellant’s submission that the respondent “had a good outcome from her surgery and that her veracity is called into question by her suggesting otherwise and that she had need to rely on her left arm”.
The Arbitrator said the respondent’s “evidence that she had to rely heavily on her left arm during the post-operative period accords with common-sense and she was not cross-examined about this evidence”. The Arbitrator referred to Dr Patrick’s findings on examination. When Dr Patrick first examined the respondent in November 2015 prior to the right shoulder surgery, there were “no positive findings in respect of the left shoulder”. She said this contrasted “markedly” with the positive findings in the left shoulder when Dr Patrick re-examined the respondent in 2019. She noted that both Dr Osborne and Dr Wallace recorded positive findings in relation to the left shoulder when they examined the left shoulder in 2019.
The Arbitrator said there was no alternative medical explanation of the left shoulder problems. Dr Wallace did not provide one, but simply did not accept there had been a “work injury” for reasons the Arbitrator considered “flawed”.[31] The Arbitrator said that, weighing all the evidence in the balance, she preferred “the evidence of [the respondent], supported by the opinion of Dr McQueen and Dr Patrick”. The Arbitrator made an ultimate finding of fact:
“Accordingly, when I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that Ms Vernon suffered a consequential condition in her left shoulder as a result of the right shoulder injury deemed to have occurred on 3 July 2014.”[32]
[31] Reasons, [76].
[32] Reasons, [77].
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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.”
In Raulston v Toll Pty Ltd,[33] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[34] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[35]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[36]
[33] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[34] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[35] [1996] HCA 140; 140 ALR 227.
[36] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[37] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[38]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[39]
[37] [2017] NSWWCCPD 5, [67].
[38] [2001] FCA 1833, [28].
[39] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[40] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[41]
[40] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[41] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[42] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[43]
[42] [2020] NSWCA 54 (Hill).
[43] Hill, [20].
GROUNDS OF APPEAL
The following grounds of appeal are raised:
(a) The Arbitrator erred in fact and law in accepting the opinion of Dr Patrick regarding causation of the left shoulder condition. (Ground No. 1)
(b) The Arbitrator erred in fact and law in determining credit in the respondent’s favour because the respondent was not cross-examined. (Ground No. 2)
(c) The Arbitrator erred in fact and law in finding the respondent first noticed left shoulder symptoms approximately two months following right shoulder surgery and the failure to give proper reasons. (Ground No. 3)
The appellant makes a general submission that the Arbitrator erred in fact and law in failing to properly assess the evidence regarding any causal connection between the right shoulder injury and the respondent’s left shoulder condition.[44]
GROUND NO. 1
[44] Appellant’s submissions, Pt B, Summary.
Appellant’s submissions
The appellant refers to the history in Dr Patrick’s report dated 5 December 2018, setting out the following passage:
“She was unable to use her right arm much at all for a number of months, and about two months subsequent to her right shoulder surgery she was experiencing significant and rapidly worsening pain and stiffness at left shoulder. She was using her left arm for everything. She was naturally right hand dominant. There appears little doubt about her significant left shoulder problems now has been [sic] a consequential injury as a result of having to not use her previously dominant right arm at all.”[45]
[45] ARD, p 14, referred to in appellant’s submissions, [1].
The appellant refers to the respondent’s statement dated 19 September 2019, in which the respondent stated that following her right shoulder surgery she “was unable to use [her] right arm for a number of months and [she] was heavily reliant upon [her] left arm to perform day to day tasks”.[46]
[46] Respondent’s statement 19/9/19, [15], ARD, p 82, referred to in appellant’s submissions, [2].
The appellant submits the Arbitrator should not have “uncritically accepted these histories” and seeks to contrast them with passages taken from Dr Osborne’s reports. The appellant refers to Dr Osborne’s report dated 30 October 2017, about two months after the right-sided surgery. The doctor said he was “very pleased with her range of motion today”, and that the respondent “understands that I would not yet expect her to be pain free”. The doctor said he was “happy for her to perform push, pull and elevation repetitively with annoyance of pain, strength and endurance”. The appellant referred to Dr Osborne’s report dated 23 January 2018, in which he said he was happy for the respondent to use her right shoulder “without restrictions”.[47]
[47] Appellant’s submissions, [3]–[5].
The appellant submits that, after reviewing the evidence including referring to the appellant’s submissions regarding inconsistencies, the Arbitrator said that Dr Osborne’s reports “in their entirety” showed the respondent was reporting that she was still troubled by pain and restriction in her right shoulder. The appellant submits this was unsupported by Dr Osborne’s evidence, and constituted factual error.[48]
[48] Appellant’s submissions, [6].
The appellant submits that, after reaching these conclusions, the Arbitrator accepted the opinion of Dr Patrick on causation. Dr Patrick’s opinion was based on a history, that in the months after the surgery, the respondent used her left arm for everything and did not use her right arm at all. The appellant submits this differed “starkly” from Dr Osborne’s evidence.[49] The appellant quotes from AP v NSW Police Force:
“The history recorded by a doctor does not have to correspond with complete precision with the facts. It is sufficient if the history provided a fair climate for the acceptance of the opinion offered (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510).”[50]
[49] Appellant’s submissions, [10]–[11].
[50] [2013] NSWWCCPD 11 (AP), [296].
The appellant submits that, if Dr Patrick’s history was properly weighed against the evidence of Dr Osborne, the Arbitrator should not have been satisfied that there was a fair climate for acceptance of Dr Patrick’s opinion.[51]
[51] Appellant’s submissions, [12]–[13].
Respondent’s submissions
The respondent submits that Dr Patrick has vast experience in the medico-legal field and there is no reason to believe he did not adjust his opinion to allow for a degree of hyperbole.[52] The respondent submits the Arbitrator accepted her evidence that, following surgery on the right shoulder, she experienced right shoulder pain such that she felt the need to protect her right arm, and “so used her left arm to such an extent that she developed symptoms in her left shoulder”. There was “pain in the dominant right arm sufficient to cause the [r]espondent to overuse her non-dominant left arm.” It is submitted this is the fair climate in which Dr Patrick formed his opinion. The right shoulder complaints were corroborated by the histories recorded by Dr Osborne and Dr Wallace (reference is made to a number of Dr Osborne’s reports). Dr Osborne said that the respondent “has not had a perfect result on her right shoulder”.[53] Dr Wallace, in his report dated 1 February 2019, noted and accepted ongoing problems in the right shoulder.[54] There was no reason for the Arbitrator to reject the opinion of Dr Patrick.[55]
[52] Respondent’s submissions, [4].
[53] Dr Osborne’s report 6/8/19, ARD, p 36.
[54] Dr Wallace’s report, Reply, p 5.
[55] Respondent’s submissions, [5]–[12].
Appellant’s submissions in reply
The appellant reiterates its submission that Dr Patrick’s history was inconsistent with the objective evidence, and that accordingly there was not a fair climate for the expression of Dr Patrick’s opinion. It submits that opinion should not have been accepted. It argues the submission referring to hyperbole amounts to a concession that Dr Patrick’s recorded history was not accurate. It submits Dr Osborne’s reports indicate a diminution of right shoulder functioning and pain before left shoulder symptoms were first reported.[56]
[56] Appellant’s submissions in reply, [1]–[4].
Consideration
The respondent accepts the correctness of the passage from AP relied on by the appellant.[57] That passage refers to (and is consistent with) Paric v John Holland Constructions Pty Ltd in which Samuel JA, after reviewing the authorities, said:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”[58]
[57] Respondent’s submissions, [2].
[58] [1984] 2 NSWLR 505 (Paric), 509–510.
In Hancock v East Coast Timber Products Pty Limited Beazley JA (as her Honour then was) said:
“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell’s evidence in this case, so that is not the relevant error.”[59]
[59] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399, [82]–[83].
Ground No. 1 raises issues regarding the reports of Dr Osborne and whether the Arbitrator erred in how she dealt with these. It raises issues regarding the weight afforded to the evidence, particularly the reports of Dr Patrick.
The approach taken to the medical evidence
Dr Osborne’s reports
It is necessary that the Arbitrator’s reasons be read as a whole.[60] The Arbitrator reviewed the medical evidence, including that of Dr Osborne, in detail. She set out Dr Osborne’s report dated 30 October 2017 in its entirety. It said the respondent “of course has pain which I would expect”. It said the doctor was “very pleased with her range of motion today”, and that the doctor wanted “to maintain her excellent range of motion and see the pain settle”. It recommended the respondent “continue working with Stewart” (I infer a reference to Stewart Burns, physiotherapist, to whom a copy of the report was directed).
[60] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The Arbitrator quoted from Dr Osborne’s report dated 23 January 2018, including the passages on which the appellant relies on this appeal. This includes reference by the Arbitrator to there being a normal active range of motion without impingement signs in the right shoulder at that point. It includes reference to the doctor being happy for the respondent to use her right shoulder without restrictions at that stage. The Arbitrator specifically noted the appellant’s submissions dealing with those findings. The Arbitrator noted that this was some five months after the surgery when the respondent was first cleared by Dr Osborne to use her right arm without restriction.[61]
[61] Reasons, [37]–[38].
The Arbitrator referred to Dr Osborne’s report dated 1 March 2018, which post-dated the right shoulder surgery by approximately six months. Dr Osborne said that nerve conduction studies were “unremarkable” and the right shoulder had a “normal range of motion with negative impingement signs”. The report also stated that the respondent “still has some residual pain in the shoulder”, although it was significantly better than prior to the surgery. Dr Osborne said it would be another six months before maximum medical improvement was reached. The Arbitrator noted the appellant’s submission that right shoulder restrictions were not as great as was reported in the respondent’s statement. The Arbitrator said Dr Osborne’s reports showed that the respondent was “still troubled by pain and restriction in her right shoulder”.[62]
[62] Reasons, [40]–[41].
The Arbitrator referred to Dr Osborne’s report dated 3 September 2018, one year after the right shoulder surgery. She quoted this report in its entirety. It referred to a “very moderate amount of pain” in the right shoulder, with a mildly positive impingement sign. Her left shoulder was “significantly worse”, “exquisitely painful through all movements and associated with strongly positive Neer and Hawkins impingement signs”. The doctor said it was clear that the respondent still had residual pain in the right shoulder and nothing was going to change that. The Arbitrator observed it was very clear the respondent had been left with “residual signs and symptoms in the right shoulder” by that stage, when she should have reached maximum medical improvement.[63]
[63] Reasons, [42]–[43].
The Arbitrator referred to the last of Dr Osborne’s reports, dated 6 August 2019. Again, she set out its contents in their entirety. By then the right shoulder was “significantly better” than the left. Dr Osborne said that the respondent “has not had a perfect result on her right shoulder”. The doctor referred to a history that left shoulder pain “started roughly five months ago following her right shoulder surgery. She attributes it to overuse in her recovery period.” Dr Osborne at that time thought it would be reasonable to consider an arthroscopic acromioplasty of the left shoulder.[64]
[64] Reasons, [44].
Dr Patrick’s reports
The Arbitrator referred to Dr Patrick’s report dated 27 June 2016, which followed a medico-legal consultation on 12 November 2015. This predated the right shoulder surgery. The Arbitrator said she did not need to go into the detail of this report as the injury to the right shoulder was not in issue. The Arbitrator noted that Dr Patrick examined the left shoulder on this consultation and recorded that the “range of active motion at left shoulder is full and free in all directions”. She said this “contrasts markedly” with Dr Patrick’s next examination of the respondent on 31 August 2018.[65]
[65] Reasons, [46]–[49].
The Arbitrator quoted, in full, the passage headed “Further Progress” from the report dated 5 December 2018. This described the respondent’s history between the two medico-legal consultations with Dr Patrick on 12 November 2015 and 31 August 2018. It referred to the right-sided surgery performed on 23 August 2017. It continued:
“A very difficult time for her followed. She was unable to use her right arm much at all for a number of months, and about two months subsequent to her right shoulder surgery she was experiencing significant and rapidly worsening pain and stiffness at her left shoulder. She was using her left arm for everything. She is naturally right arm dominant.”
Dr Patrick recorded that there was “ongoing troublesome pain at both right and left shoulders”. He said there were “very little improvements in range of active movement at her operated right shoulder since last seen by me – probably some minimal improvement in elevation. Left shoulder now is if anything somewhat worse than the right.” The Arbitrator referred to Dr Patrick’s history of “sleep disturbance and difficulty with household tasks and the heavier tasks and that she continues on strong analgesic medication”. The Arbitrator noted this was “consistent with the evidence [the respondent] has given in these proceedings and reported to the medical professionals whose reports are in evidence before me”.[66]
[66] Reasons, [51]–[54].
The Arbitrator quoted Dr Patrick’s conclusion. He described the right shoulder surgery as producing “just limited improvement”. Dealing with the cause of the left-sided symptoms the Arbitrator quoted the following from Dr Patrick’s report:
“I believe that clearly Pauline Vernon has sustained significant consequential injury to her left shoulder as a consequence of favouring (sparing) the injured and operated right shoulder over a considerable period of time.”
And:
“I do causally relate Pauline Vernon’s injuries to both her right and left shoulder and ongoing symptomology/disabilities to the nature and conditions of her employment.”
The Arbitrator referred to a submission by the appellant’s counsel that the above findings were contradictory. The Arbitrator said that Dr Patrick had clearly expressed an opinion that the left shoulder condition was consequential on favouring the injured right shoulder. The Arbitrator reasoned that the right shoulder condition was alleged to result from the ‘nature and conditions’ of the respondent’s employment, and the left shoulder condition was claimed to result from the right shoulder injury. The Arbitrator said nothing turned on how the doctor expressed himself at the end of his opinion, when the report was read as a whole.[67]
[67] Reasons, [57]–[58].
Dr McQueen’s reports
The Arbitrator also relied on the opinion of Dr McQueen (see [22] above). In a report dated 24 May 2018 Dr McQueen diagnosed “[left] shoulder subacromial bursitis, presumable [sic] secondary from overuse, she has chronic [right] subacromial bursitis and favours her [left] arm.” In a report dated 28 November 2019 Dr McQueen said that the respondent “first came to see me on 11 May 2018 in regards to the left shoulder”. The doctor said that the respondent was referred for x-ray and ultrasound of the left shoulder on 15 May 2018 and a report was made on 24 May 2018.[68]
[68] Reasons, [29]–[30].
Dr Wallace’s report
Dr Wallace reported to the appellant’s solicitors on 1 February 2019, following an examination on 30 January 2019. The Arbitrator stated that she gave “very little weight” to Dr Wallace’s opinion, for reasons briefly summarised at [18] above. The way in which Dr Wallace’s opinion was dealt with is not the subject of challenge on this appeal and it is unnecessary to consider in detail the reasons for this. It should be noted that the Arbitrator referred to Dr Wallace’s recorded history of an onset of left-sided symptoms in October 2017, two months after the right shoulder surgery. She referred to Dr Wallace’s history that the respondent received physiotherapy treatment for eight months following the right shoulder surgery.[69]
[69] Reasons, [63].
The Arbitrator also referred to the history of present complaints taken by Dr Wallace. These matters included global aching in the shoulders, pain radiating to the arms, pain worsening with housework or driving and relieved by analgesics, weakness in the upper limbs and bilateral shoulder stiffness.[70]
[70] Reasons, [65].
The lay evidence
The Arbitrator, in an analysis of the evidence at [76] of her reasons, stated that she took into account the respondent’s evidence in her statement, that following the right shoulder surgery she “had to rely heavily on her left arm to perform day to day activities”. The Arbitrator, in her reasons at [27], set out a lengthy passage from the respondent’s statement dated 19 September 2019. Quoted passages from her statement at [17] to [30] described her treatment of the left shoulder as commencing from “April/early May 2018”. The quoted portions of the statement at [31] to [37] set out restrictions of the respondent’s activities. These are expressed in the present tense. They include pain, stiffness and restriction of movement in the shoulders, inability to perform tasks with the arms outstretched or overhead, difficulty performing heavier household tasks, and difficulty with heavier lifting or carrying.
Is error made out?
The Arbitrator stated that she reached her conclusion on causation weighing “all of the evidence in the balance”.[71] This was clearly appropriate. The appellant’s attack on the factual findings is largely based on whether the Arbitrator gave appropriate weight to certain aspects of the reports of Dr Osborne. In Shellharbour City Council v Rigby, Beazley JA (as her Honour then was) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[72]
[71] Reasons, [76]–[77].
[72] [2006] NSWCA 308, [144].
The appellant seeks to identify specific factual error in its submissions at [1] to [11]. These are the submissions summarised at [30] to [34] above. The appellant refers to the reasons at [41], where the Arbitrator stated that Dr Osborne’s reports, considered in their entirety, showed that the respondent was reporting “that she was still troubled by pain and restriction in her right shoulder”. The appellant submits this was “unsupported by the evidence of Dr Osborne and amounts to an error of fact”.[73]
[73] Appellant’s submissions, [6].
The report dated 30 October 2017 includes the passage “I am very pleased with her range of motion today”, on which the appellant relies. It also includes “I would not yet expect her to be pain free”, and that “over the coming few months” the doctor wanted “to see her retain her excellent range of motion and see the pain settle”. The report included a passage on which the appellant relies, in which the doctor said that he was happy for the respondent to “perform push, pull and elevation repetitively with annoyance of pain, strength and endurance”. The doctor said he was happy for the respondent to have “increasing duties at work as she is able to tolerate”. Further physiotherapy was recommended. A report of Dr Osborne dated 11 December 2017, directed to the appellant and concerning suitable duties, said the respondent could carry out certain specified duties “within the restrictions of pain, strength and endurance to her shoulder”.
Dr Osborne’s report dated 23 January 2018 said the respondent could “use the shoulder without restrictions”. It referred to complaints of worsened paraesthesia in the right ulnar distribution, worse than prior to the surgery. It said the respondent “still has some pain in her right shoulder”. A report dated 1 March 2018 said the respondent “still has some residual pain in the shoulder”; it was hoped she would be “maximally improved” in another six months. Dr Osborne’s report dated 3 September 2018 (one year post right shoulder surgery) said the respondent’s right shoulder was “better than she was before her surgery but it’s clear that she still has residual pain and I think it’s likely that nothing else is going to change this”. By that stage the doctor recorded a history that the “left shoulder is significantly worse”. Dr Osborne, in his most recent report dated 6 August 2019 said the respondent “has not had a perfect result on her right shoulder”.
On a fair reading of Dr Osborne’s reports, in their entirety, they support the Arbitrator’s conclusion that they were consistent with the reporting of pain and restriction in the respondent’s right shoulder. It is clear from Dr Osborne’s reports that the respondent did not at any time experience a full recovery from the right shoulder symptoms. The alleged factual error described at [55] above is not made out. The appellant’s submissions describe the Arbitrator as determining that Dr Osborne’s reports were “consistent with [the respondent’s] evidence that she had ongoing problems with her right shoulder following the surgery”.[74] Such a conclusion on the Arbitrator’s part is consistent with Dr Osborne’s reports, considered overall. It is not erroneous.
[74] Appellant’s submissions, [7].
The appellant submits Dr Patrick’s opinion was based on a history that in the months following the right shoulder surgery, the respondent used her left arm for “everything” and did not use her right arm “at all”. It submits this was not an accurate history. It submits Dr Patrick’s opinion was deprived of weight, and the respondent could not on that basis discharge her onus.[75] The passage of the respondent’s history to which this submission refers is that quoted at [47] above. A history that the respondent did not use her right arm “at all” is not the same as one that she was “unable to use her right arm much at all for a number of months”.
[75] Appellant’s submissions, [7]–[10], [13]–[14].
The Arbitrator’s fact finding was not simply based on the reports of Dr Osborne and Dr Patrick. The Arbitrator referred to the respondent’s evidence in her second statement, that after the surgery in August 2017 she “had to rely heavily on her left arm to perform day to day activities”. She referred to the respondent’s evidence that she developed left shoulder symptoms in about October 2017. The Arbitrator referred to the respondent’s evidence that she “had ongoing problems with the right shoulder following the surgery”. She noted that the respondent was not cleared to use the right arm normally “until January 2018 some five months after surgery”. The Arbitrator described the evidence, that the respondent relied heavily on her left arm in the post-operative recovery period, as according with common-sense. The Arbitrator described her finding on causation as being based on the evidence of the respondent, supported by the opinion of Dr McQueen and Dr Patrick.[76]
[76] Reasons, [76].
Dr McQueen, in his report dated 11 May 2017, described the respondent as seeing him on a monthly basis since 2 July 2014.[77] In his report dated 24 May 2018, the doctor stated that the respondent “has chronic [right] subacromial bursitis and favours her left arm”. In the same report he described the “[left] shoulder subacromial bursitis” as “presumabl[y] secondary from overuse”.[78] The respondent’s case was not purely dependent on an acceptance of the opinion of Dr Patrick.
[77] ARD, p 25.
[78] ARD, p 27.
The respondent, in its submissions, identified the following matters accepted by the Arbitrator as providing an appropriate basis for acceptance of Dr Patrick’s opinion:
(a) the respondent, in the months after the surgery performed on 23 August 2017, felt the need to protect her right arm due to the symptoms in her right shoulder;
(b) in doing so she overused her non-dominant left arm, and
(c) as a result she developed symptoms in her left shoulder.[79]
[79] Respondent’s submissions, [5]–[7].
The first two of these matters constituted the factual basis for the respondent’s case on causation. They were established by the respondent’s evidence, which the Arbitrator accepted, together with the reports of Dr McQueen, which the Arbitrator accepted.
There was evidence that permitted acceptance of Dr Patrick’s opinion on causation. This did not mean that the opinion had to be accepted, but the issue was the weight to be afforded to it. It was not necessary that the history on which Dr Patrick proceeded be “precisely consonant” with the facts as ultimately proved, simply that the assumed facts provided a “fair climate” for expression of the opinion. The Arbitrator accepted that the respondent was restricted in the use of her dominant right arm following surgery on 23 August 2017. She accepted that the respondent never had a full recovery following that surgery. She accepted that the respondent relied heavily on her non-dominant left arm in the post-operative recovery period. She accepted that the respondent developed symptoms in her left shoulder subsequent to the surgery. These matters afforded a fair climate for the acceptance of Dr Patrick’s opinion. Consistent with the passage from Paric quoted at [38] above, the presence of this factual basis was a matter for the Arbitrator, as the tribunal of fact, to assess.
Ground No. 1 fails.
GROUND NO. 2
Appellant’s submissions
The Arbitrator, in her analysis at [76] of the reasons, referred on the following two occasions to the fact that the respondent had not been cross-examined on certain topics:
“When I weigh all of the evidence in the balance, I take into account that Ms Vernon has given evidence in her statement that after her right shoulder surgery in August 2017 she had to rely heavily on her left arm to perform day to day activities. I note she is right arm dominant. She gave evidence that she developed symptoms of pain and restriction in her left arm in about October 2017, about two months after her right shoulder surgery. She was not cross-examined about this evidence.”
And:
“Counsel for Calvary has referred to the reports of Dr Osborne as painting a picture that Ms Vernon had a good outcome from her surgery and that her veracity is called into question by her suggesting otherwise and that she had need to rely on her left arm. When all of Dr Osborne reports are weighed in the balance they are consistent with Ms Vernon’s evidence that she had ongoing problems with her right shoulder following the surgery. Dr Osborne himself notes that she has been left with moderate pain and that the result has been less than perfect. The reports from Dr Osborne show that Ms Vernon was not cleared to use her right arm without restriction until January 2018 some five months after surgery. She is right arm dominant. Her evidence that she had to rely heavily on her left arm in the post-operative recovery period accords with common-sense and she was not cross-examined about this evidence.”
The appellant refers to a decision of Baines v Hany in which Wood DP, after reviewing various authorities, said:
“It is abundantly clear from the authorities cited above … that in proceedings before the Commission, the Commission may accept or reject evidence that is untested by cross-examination.”[80]
[80] [2018] NSWWCCPD 14, [234].
The appellant submits that credit was in issue; it submits the Arbitrator referred to the respondent’s “veracity being called into question”. The appellant submits that “in resolving that issue the Arbitrator twice stated that the respondent was not cross-examined”. The appellant submits the inference is that because the respondent was not cross-examined, her evidence was not challenged and the Arbitrator was “bound to accept it”. It submits this “infected” how the Arbitrator dealt with the respondent’s credit. It submits credit findings going to the allegations of right shoulder restrictions following surgery should have been dealt with on the documentary evidence without regard to the absence of cross-examination. The appellant submits that the absence of cross-examination was not raised by the respondent’s counsel during the hearing and the parties were not alerted during the hearing to the possibility that this matter may be relied on.[81]
[81] Appellant’s submissions, [15]–[22].
Respondent’s submissions
The respondent accepts that credit was in issue, and that a failure to cross-examine was not raised during the running of the case. The respondent submits her complaints of right shoulder pain were consistent and corroborated yet needed to be challenged by the appellant if the appellant were to succeed in its defence of the matter. The respondent submits that, in those circumstances, it was appropriate to comment on the appellant’s forensic decision not to cross-examine.[82]
[82] Respondent’s submissions, [13]–[14].
The respondent submits that the failure to cross-examine was not determinative, the respondent was accepted as reliable because she gave a consistent and corroborated history.
Consideration
In JB Metropolitan Distributors Pty Ltd v Kitanoski Roche DP said
“Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).”[83]
[83] [2016] NSWWCCPD 17 (Kitanoski), [121].
Both parties accept that a failure to cross-examine in the Commission does not preclude an adverse credit finding. It does not militate against such a finding in appropriate circumstances. This is subject to principles of procedural fairness that are inherent in the above passage.
In Seltsam Pty Limited v Ghaleb Ipp JA (Mason P agreeing) summarised a number of authorities dealing with procedural fairness and said:
“78. These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
79. A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.”[84]
[84] [2005] NSWCA 208; 3 DDCR 1 (Ghaleb), [78]–[79].
The appellant submits, and I accept, that the respondent’s credit was put in issue.[85] The respondent properly accepts this. The respondent properly accepts that it did not raise a failure to cross-examine in its submissions before the Arbitrator.[86] That the Arbitrator might contemplate relying on a failure by the appellant to cross-examine, as a matter relevant to her determination of the credit issue, was not raised with the parties during the running of the arbitration hearing. In those circumstances, neither party made submissions at first instance on this topic. Consistent with authority there was a breach of the rules of procedural fairness.
[85] T 20.13–21.7.
[86] Respondent’s submissions, [13].
In Stead v State Government Insurance Commission, the High Court stated:
“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”[87]
And:
“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”[88]
[87] [1986] HCA 54; 161 CLR 141, (Stead) [11]. See also Toll Pty Ltd v Morrisey [2008] NSWCA 197; 6 DDCR 561, [10], Ghaleb, [79].
[88] Stead, [16].
In Boral Besser Masonry Ltd v Jabarkhill it was said:
“To succeed in setting aside a judgment on the natural justice ground it will not always be sufficient for an appellant to show a denial of natural justice. Occasionally it may appear that it was highly likely that the same judgment should have been arrived at in any event, so that it would be pointless to order a new trial. When that appears sufficiently clearly the court may refuse to uphold the appeal; but that position would have to [be] very clear before the court would withhold relief.”[89]
[89] [1999] NSWCA 476; 19 NSWCCR 227 (per Priestley JA, Mason P agreeing), [12].
The respondent argues that the reference to a failure to cross-examine was not determinative, the same result would have prevailed in any event.[90] The appellant submits “the absence of cross-examin[ation] was clearly a factor that was considered by the Arbitrator and formed part of her reasoning process”.[91]
[90] Respondent’s submissions, [15]–[16].
[91] Appellant’s submissions in reply, [5].
The absence of cross-examination was referred to twice, in the passages set out at [67] above. On its face, it was a factor relied on by the Arbitrator in accepting the respondent’s evidence set out in those passages. The Arbitrator relied in part on acceptance of the respondent’s evidence in her fact finding (see [61] and [63] above). One could not conclude that “a properly conducted trial could not possibly have produced a different result”.
Ground No. 2 succeeds. It is unnecessary in the circumstances to deal with Ground No. 3.
CONCLUSION
Consistent with the principles discussed above dealing with Ground No. 2, it is appropriate that the matter be remitted for re-determination by another arbitrator.
DECISION
Leave is granted to the appellant to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act.
The Certificate of Determination dated 28 April 2020 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Michael Snell
DEPUTY PRESIDENT
27 August 2020
2
24
0