Carter v Star Track Express Pty Ltd - [2015] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Carter v Star Track Express Pty Ltd t/as Star Track Express [2015] NSWWCCPD 60
APPELLANT:	Melissa Carter
RESPONDENT:	Star Track Express Pty Ltd t/as Star Track Express
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2208/15
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:	30 June 2015
DATE OF APPEAL DECISION:	8 October 2015
SUBJECT MATTER OF DECISION:	Claim for lump sum compensation as a result of consequential conditions alleged to have resulted from accepted injury to right shoulder; assessment of evidence; whether worker established a prima facie case; principles in Watts v Rake [1960] HCA 58; 108 CLR 158 considered
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	NSW Compensation Lawyers
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 30 June 2015 is confirmed.

INTRODUCTION

This appeal challenges the Arbitrator’s finding that the worker did not suffer symptoms in her cervical spine and thoracic spine as a result of an accepted injury to her right shoulder. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

The appellant worker, Melissa Carter, performed office duties for the respondent employer, Star Track Express Pty Ltd, from January 2009 until 30 June 2013. On 18 May 2010, she tripped at work and fell, injuring her right elbow and right shoulder. The insurer accepted liability for this injury and paid compensation for surgery to Ms Carter’s right shoulder (a rotator cuff repair) performed by Dr Duckworth, orthopaedic surgeon, on 29 September 2011.
In October/November 2011, Ms Carter’s right arm was immobilised in a sling. She gave evidence that, during this period, she was conscious of constant pressure on her neck, shoulder and mid-back area.
On 10 November 2011, Ms Carter returned to work for four hours per day, continuing to wear a sling on and off, though it is not known for how long.
Ms Carter gave evidence, in a statement dated 3 December 2014, that her neck and mid-back pain became “noticeably worse” about six months after the operation on her right shoulder and was “somewhat incapacitating as a result of protecting [her] right arm and shoulder”. She had not experienced neck or mid-back symptoms before the right elbow and shoulder injury.
The claim before the Arbitrator was for lump sum compensation as a result of symptoms alleged to have developed in Ms Carter’s left shoulder, thoracic spine (mid-back) and cervical spine (neck) as a result of the accepted injury to the right shoulder (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796).
Ms Carter’s case was that, because of the injury to her right shoulder, she overused her left shoulder and developed problems with that shoulder. That was especially so when her right arm was in a sling following surgery. Her complaints of left shoulder pain were documented in May 2012 by her general practitioner, Dr Chara, and her physiotherapist, Lisa Gardiner-Keenan.
Ms Carter alleged that she also developed symptoms in her neck and thoracic spine in 2012, because of the altered biomechanics as a result of the right shoulder injury and surgery, and that she complained about her symptoms to her treating doctors and to Ms Gardiner-Keenan. Clinical notes produced from those sources do not support that assertion.
Ms Carter relied on evidence from Dr Giblin, orthopaedic surgeon, who first saw her on 24 February 2014, at the request of her solicitors, and took the first documented history of neck and thoracic spine symptoms. He stated that it was common for someone who wears a sling for a period, or who has altered mechanics of their shoulder mechanism, to have cervical and thoracic pain. That is because the injury will cause tension and the spasm associated with the tension can aggravate underlying degenerative changes in those parts of the body. (X-rays taken in March 2014 revealed degenerative changes in Ms Carter’s neck and thoracic spine.)
The Arbitrator found that, because of overuse of the left shoulder due to pain and restrictions in the right shoulder, the symptoms in the left shoulder resulted from the injury to the right shoulder. However, she did not accept that neck and thoracic spine symptoms developed as a consequence of the right shoulder injury.
The Arbitrator did not feel actual persuasion about the facts underlying the opinion of Dr Giblin. Essentially, that was because there was no mention of neck and thoracic spine symptoms to Ms Carter’s treating doctors or her physiotherapist in the period she said she complained to them. The Arbitrator did not find Ms Carter to be a reliable historian and preferred the contemporaneous evidence.
Consistent with the Arbitrator’s findings, the Commission issued a Certificate of Determination on 30 June 2015 in the following terms:
“(a)Award for the respondent in relation to the allegation of consequential conditions in the cervical spine and thoracic spine.
(b)Award for the applicant in relation to the left upper extremity (shoulder) being a consequential condition caused by the agreed right upper extremity (shoulder) injury on 18 May 2010.
(c)The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the whole person impairment in relation to the right upper extremity (shoulder), scarring and the left upper extremity (shoulder) in relation to date of injury 18 May 2010.
(d)The documents to be referred to the Approved Medical Specialist are those admitted into evidence.”
Ms Carter has appealed against the Arbitrator’s findings relating to the cervical spine and thoracic spine.

ON THE PAPERS

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

ISSUES IN DISPUTE

The grounds of appeal are said to be:
(a)     the Arbitrator erred in considering it necessary for Ms Carter to give contemporaneous evidence regarding muscle spasm;
(b)     the only medical evidence is to the effect that Ms Carter’s neck symptoms resulted from her accepted injury (to the right shoulder), and
(c)     the Arbitrator erred by not taking into account a submission based on Watts v Rake [1960] HCA 58; 108 CLR 158.

GROUND 1: CONTEMPORANEOUS EVIDENCE

Submissions

Counsel for Ms Carter, Mr John Dodd, who did not appear at the arbitration, submitted that the Arbitrator erred in rejecting Ms Carter’s claims on the basis that there was no evidence of contemporaneous muscle spasm, “because such symptoms may not be reported by [Ms Carter] and there was evidence of such symptoms on examination”.
Mr Dodd contended that the Arbitrator (at [27]) (apparently) accepted Dr Giblin’s evidence that it is common for a person with altered mechanics of their shoulder to have cervical and thoracic symptoms. However, she considered that there was “no contemporaneous evidence of spasm” and therefore rejected the submission based on that evidence. It was submitted that there was nothing in Dr Giblin’s opinion that indicated that the “tension and frequently the spasm associated with the tension” need be something that can be objectively experienced by the patient such that she could have given evidence about it.
He said that Ms Carter received physiotherapy involving scapular retractions and neck exercises to assist shoulder function, and such treatment was indicative of “altered mechanics of the shoulder mechanisms”. He argued that the Arbitrator erred in rejecting the claim because there was no evidence of contemporaneous muscle spasm and erred in failing to take into account the report of Dr Duckworth of 10 November 2011, in which he noted “muscle spasms around [Ms Carter’s] shoulder”. This indicated an alteration in the biomechanics of Ms Carter’s shoulder.
The respondent’s solicitor, Ms Tancred, submitted that the Arbitrator did not simply rely on the lack of contemporaneous evidence of muscle spasm. The Arbitrator was not convinced that there were any complaints in relation to the neck or thoracic spine to establish there was a consequential condition arising from the work injury. Ms Tancred contended that the Arbitrator’s comments about the absence of muscle spasm were taken out of context and that the Arbitrator did not accept Dr Giblin’s evidence.
Ms Tancred argued that, reading the decision as a whole, the Arbitrator concluded that in the absence of corroborative evidence of any contemporaneous complaints or treatment with respect to the neck or thoracic spine, Dr Giblin’s evidence was insufficient to establish that Ms Carter suffered a consequential condition to the neck and thoracic spine as a result of the injury on 18 May 2010.

Discussion and findings

Mr Dodd’s submissions cannot be accepted. The Arbitrator’s statement about the lack of contemporaneous evidence of spasm must be read in the context of the decision overall.
Ms Carter’s case was that, about six months after the operation on her right shoulder in November 2011, she started developing neck and mid-back pain because she was protecting her right arm and shoulder. The Arbitrator did not accept that history. Her main reason was that, as conceded by Ms Carter’s counsel at the arbitration, there were no clinical notes that documented thoracic or neck symptoms. She reached that conclusion after a careful analysis of the evidence.
The Arbitrator referred (at [16]) to Ms Gardiner-Keenan’s note on 7 May 2012 that Ms Carter had complained that both shoulders were sore and that she gave neck exercises for the shoulders. The Arbitrator did not accept that this was a complaint of neck pain. This was because, judging from the way Ms Gardiner-Keenan recorded each consultation, the Arbitrator felt it more likely that Ms Gardiner-Keenan would have written “neck” if that was what she intended. The Arbitrator was confident that, given that Ms Gardiner-Keenan expressly recorded pain in the left shoulder, had Ms Carter complained of pain in the cervical spine or thoracic spine, Ms Gardiner-Keenan would have recorded it. The fact that she did not was an important piece of evidence the Arbitrator was entitled to consider and did consider in her assessment of the claim.
Next, the Arbitrator (at [17]) rejected the contention that Ms Gardiner-Keenan did not record a complaint of neck and thoracic spine symptoms because Ms Carter was not referred for those complaints and Ms Gardiner-Keenan would therefore not have been paid for treating them. She found it more probable that Ms Carter did not complain about neck and thoracic spine symptoms. She accepted that Ms Carter did complain about, and was treated for, her left shoulder, though there had been no referral for that problem. It followed that she accepted that the left shoulder symptoms resulted from the right shoulder injury. The respondent has not challenged this finding.
The Arbitrator further noted (at [25]) that, contrary to Ms Carter’s evidence, Ms Gardiner-Keenan did not treat Ms Carter’s neck and thoracic spine at any stage. Ms Gardiner-Keenan provided scapular traction, deep tissue release to the trapezius and neck exercises to help shoulder function, but had no referral for (and recorded no complaint about) Ms Carter’s neck or thoracic spine and did not treat those areas, though Ms Carter may have had an impression that the neck and thoracic spines were treated.
The Arbitrator recorded (at [26]) Ms Carter’s submission that “there was evidence of altered biomechanics and then development of symptoms in those body parts”, which supported (so it was argued) a finding that the symptoms (in the neck and thoracic spine) were causally related to the right shoulder injury.
She then referred (at [27]) to the x-rays of the cervical spine and thoracic spine dated 22 March 2014, done shortly after Dr Giblin saw Ms Carter on 24 February 2014, which showed degenerative changes. The Arbitrator continued, at [27]:
“In the report [from Dr Giblin] dated 24 November 2014[,] he says it is common for someone who wears a sling for a period of time or when they have altered mechanics of their shoulder mechanism to have cervical and thoracic pain. The doctor adds that the injury will cause tension and frequently the spasm associated with the tension can aggravate the underlying degenerative changes to both the cervical spine and thoracic. However[,] there is no contemporaneous evidence of spasm. Dr Giblin also says the fact that Ms Carter developed pain in these areas after the fall it is fair to assume it relates to the right shoulder injury. However[,] I do not feel so persuaded by Dr Giblin’s opinion because I feel the onset of recorded symptoms is so long after the initial fall and injury to the right shoulder that it makes this scenario not probable.”
The Arbitrator added that she did not accept Ms Carter to be a “reliable historian” and preferred the contemporaneous evidence about the “lack of treatment to the neck and thoracic spine” ([28]). She observed that, as Ms Carter’s counsel conceded, it was not clear how long Ms Carter wore the sling “on/off at work”. The Arbitrator also (at [29]) noted the respondent’s submission, which she felt had “force”, that Dr Duckworth examined Ms Carter after the sling had been removed, but recorded no “neck or thoracic complaints”.
The Arbitrator did not suggest that the spasm needed to be something that Ms Carter could objectively experience, such that she could give evidence about it. Read in its proper context, the Arbitrator’s reference to the absence of contemporaneous evidence of spasm was a reference to the absence of any complaint by Ms Carter to her treating doctors, or her physiotherapist, of any symptoms in her neck or mid-back in late 2011 or 2012. That finding was open on the evidence and disclosed no error.
The submission that the treatment by Ms Gardiner-Keenan was indicative of altered mechanics of the shoulder mechanism does not advance Ms Carter’s position on appeal. The Arbitrator dealt with Ms Gardiner-Keenan’s evidence at [24]–[25]. At [24], the Arbitrator quoted the following passage from Ms Gardiner-Keenan’s report of 20 October 2014:
“Treatment did include scapular retractions (pulling back your shoulder blades), deep tissue release to the trapezius and neck exercises (to help posture). These treatment techniques were done to help shoulder function. These were the only techniques performed near the thoracic or cervical spine area. No referral and therefore no treatment was supplied to the thoracic or cervical spine area.”
The Arbitrator said that this statement made it clear that, contrary to the submissions made by Ms Carter, and contrary to her evidence, Ms Carter did not have treatment to the neck and thoracic spines. The exercises were to improve shoulder function. Both these statements were correct. It follows that, while such treatment may well have been “indicative of altered mechanics of the shoulder mechanism”, it does not establish relevant error by the Arbitrator in circumstances where, for reasons given, she did not accept Ms Carter’s history.
The submission that the Arbitrator failed to take account of Dr Duckworth’s evidence of spasm around the shoulder does not establish error. Ms Carter did not rely on this evidence at the arbitration and it is not an error for an Arbitrator not to deal with material on which no submissions were made (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [22] and [30]). That is particularly so in a case where, as in the present matter, there are over 500 pages of material in the Application to Resolve a Dispute alone, much of which is irrelevant.
It is for the parties to present their respective cases and to draw the Arbitrator’s attention to relevant evidence. A judge (or, I would add, an Arbitrator) is not obliged to search through a mass of apparently non-supportive evidence to find supportive material (Gamester Pty Ltd v Lockhart [1993] HCA 79; 112 ALR 623; 67 ALJR 547).
The transcript of the proceedings before the Arbitrator reveals that neither counsel addressed on Dr Duckworth’s report of 10 November 2011. The only reference to his evidence was by the Arbitrator (at T35.14) where she observed that Dr Duckworth recorded, on 12 May 2012, that Ms Carter had developed pain in her left shoulder. It follows that the Arbitrator did not err in failing to refer to Dr Duckworth’s evidence of spasm around the shoulder.
In any event, if the Arbitrator did err in failing to refer to that entry in Dr Duckworth’s report, that error makes no difference to the outcome. That is because, reading the decision as a whole, it is clear that the lack of evidence of spasm was not the crucial factor in the Arbitrator’s determination. The Arbitrator based her conclusion on a lack of complaint of neck and mid-back symptoms to the treating doctors and the physiotherapist in 2011 and 2012, the fact that she did not accept Ms Carter as a reliable historian, and the fact that the neck and thoracic spine symptoms developed so long after the injury to the right shoulder. Though it may have been more accurate to have noted the long delay between Ms Carter ceasing to wear the sling for her right shoulder and the first documented complaint of neck and thoracic spine symptoms in 2014, nothing turns on that. The Arbitrator’s findings were open on the evidence and disclosed no error.

GROUND 2: MEDICAL EVIDENCE REGARDING NECK SYMPTOMS

Submissions

Mr Dodd submitted that the Arbitrator erred in rejecting the claim in respect of the neck when all the medical evidence supported such a claim. In addition to the evidence from Dr Giblin, Mr Dodd relied on the evidence from Dr Panjratan, orthopaedic surgeon qualified by the respondent, who diagnosed Ms Carter to have a right rotator cuff tear, repaired with residual problems, and “[s]econdary strain to the neck and left shoulder”.
Mr Dodd contended that, confusingly, Dr Panjratan expressed the view that the neck and thoracic spine (impairments) were related to the right shoulder injury but did not include them in his assessment of whole person impairment. However, similarly, Dr Panjratan did not include any assessment of left shoulder impairment, which he undoubtedly considered (and the Arbitrator found) to have resulted from the right shoulder injury.
Mr Dodd added that it was only the Arbitrator’s task to make findings about what body parts had their conditions altered as a result of the event on 18 May 2010, the extent of whole person impairment resulting from such condition being a matter for an Approved Medical Specialist (AMS) to assess (Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139). It therefore did not matter that Dr Panjratan considered that no whole person impairment resulted from such conditions.
Mr Dodd argued that the Arbitrator had to give clear and effective reasons why she rejected the overwhelming evidence from Dr Giblin and Dr Panjratan. The Arbitrator (at [30]) noted the contradiction in Dr Panjratan’s first report, but relied only upon the second expression of opinion by the doctor. She also referred to his second report, which could not have been in the doctor’s contemplation when giving his diagnosis in the first report. The opinion in the second report only related to Ms Carter’s use of a sling while recovering from her right shoulder operation and did not deal with the altered biomechanics of Ms Carter having conditions affecting both shoulders.

Discussion and findings

I do not accept Mr Dodd’s submissions.
Dr Panjratan saw Ms Carter on 14 May 2014. In his report of the same date, he took a history that Ms Carter suffered “primarily an injury to her right shoulder, but is claiming secondary injuries to the neck, back, and left shoulder pain due to overcompensation”. He recorded that she started noting problems with her left shoulder about six months after the operation on her right shoulder and developed neck and back problems at the six-month mark as well. He recorded that she had a “constant creak in the neck” and had constant pain across and down to the cervicothoracic junction.
Under “Your diagnosis”, Dr Panjratan wrote:
“● Right shoulder cuff tear; repaired with residual problems
● Secondary strain to the neck and left shoulder.”
Under “general prognosis”, Dr Panjratan said that Ms Carter’s condition was stable and he did not expect further change. He added:
“I note that Dr Giblin has provided impairment for the shoulder and the thoracic spine with which I do not concur. I do not believe the neck and thoracic spine are related to her right shoulder injury and as such I have not included them in my impairment assessment. Even if that was to be considered, it would be one part involving the cervical spine but not the thoracic spine.”
In his second report, Dr Panjratan reviewed reports from Dr Duckworth and Ms Gardiner-Keenan, together with Dr Chara’s notes. He did not believe that Ms Carter should have neck complaints and thoracic complaints from wearing the sling (for her right shoulder) intermittently, as Ms Gardiner-Keenan had instructed her. If, however, against the instructions of Ms Gardiner-Keenan, she wore it continuously, it was possible that she could have developed some neck complaints, but he could not come to terms with the fact that Ms Carter could have developed thoracic complaints. He correctly noted that there were no details in Ms Carter’s statement about how long she wore the sling or when she wore it. He added that it was “of significance” that Ms Carter did not complain (about neck and cervical spine symptoms) before February 2014.
Thus, though Dr Panjratan provided some support for Ms Carter in his first report, with his reference to Ms Carter having suffered a “[s]econdary strain to the neck”, it is tolerably clear, on proper analysis of the whole of his evidence, that that was not his ultimate conclusion. In assessing a doctor’s opinion it is always important to consider all of the doctor’s evidence. That is because a deficiency (or ambiguity) in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) at [92]).
The Arbitrator dealt with Dr Panjratan’s evidence, on this issue, at [30]:
“30.Ms Carter relies upon Dr Panjratan because he states on page 7 of the Reply that she has secondary strain to the neck. However[,] further down that page he says that it is not related to the right shoulder injury. In his second report[,] Dr Panjratan allows that neck complaints could have occurred if she wore the sling continuously. There is no such evidence before me. The doctor notes that the general practitioner, specialist and the physiotherapist have no record of complaints in the neck or thoracic spines.”
Thus, it is clear that, as required, the Arbitrator considered all of Dr Panjratan’s evidence. It was therefore open to her to conclude that Ms Carter had not discharged the onus of proof that her neck and thoracic spine conditions resulted from the injury to her right shoulder. This is so even though there is an ambiguity as to what Dr Panjratan meant when he said, in his first report, that he did “not believe the neck and thoracic spine are related to her right shoulder injury”. That ambiguity was clarified in his second report, which he prepared after specific and extensive reference to the evidence from Dr Duckworth, Dr Chara, Ms Gardiner-Keenan and Ms Carter, and where he clearly rejected the suggestion that the neck symptoms resulted from the right shoulder injury.

GROUND 3: WATTS v RAKE

Submissions

Mr Dodd submitted that Ms Carter made out a prima facie case, based on her having no symptoms in her neck or thoracic spine before the work accident and having symptoms after the injury and its necessary treatment. He said that the respondent adduced no evidence that the conditions of the cervical and thoracic spines had resulted from some pre-existing condition (Purkess v Crittenden [1965] HCA 34; 114 CLR 164) and the Arbitrator erred in failing to refer to this submission. He said that the facts should satisfy the Commission that Ms Carter’s cervical and thoracic spine conditions resulted from her accepted work injuries.

Discussion and findings

At the arbitration, counsel for Ms Carter did not refer to Purkess v Crittenden or Watts v Rake. Nor did he argue that Ms Carter had established a prima facie case and that, therefore, the evidentiary burden shifted to the respondent. It follows that the Arbitrator did not err in not referring to those authorities.
Counsel relied on the fact that Ms Carter had no neck or thoracic spine symptoms before the 18 May 2010 fall and had those symptoms after it. He contended that the neck and thoracic spine symptoms were either “totally coincidental or they are causally related” (T20.9) to the right shoulder injury. The Arbitrator considered this submission at [22], where she said that the argument struck her as “ex post facto reasoning”.
The Arbitrator referred (at [23]) to the need to feel actual persuasion of the existence of a fact (Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [44]) and said that the type of reasoning she summarised at [22] did not persuade her that Ms Carter had discharged her onus of proof in relation to the cervical spine and thoracic spine. That was primarily because there was no reference to any symptoms in Ms Carter’s neck or mid-back in any of the material from the treating doctors or from Ms Gardiner-Keenan.
It follows that, for reasons stated, the Arbitrator did not accept that Ms Carter had made out a prima facie case with respect to her claim that her neck and thoracic spine symptoms resulted from the right shoulder injury. That conclusion was open on the evidence and disclosed no error. As explained by Mason P (Santow and McColl JJA agreeing) in Brown v Lewis [2006] NSWCA 87; 65 NSWLR 587 at [83], “the ultimate persuasive onus remains with the plaintiff”. In the Commission, the ultimate persuasive onus rests with the applicant worker. Ms Carter failed to discharge that onus.
This ground is not made out.

DECISION

The Arbitrator’s determination of 30 June 2015 is confirmed.

Bill Roche
Deputy President

8 October 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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