Catholic Healthcare Limited v Rhyder - [2016] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Catholic Healthcare Limited v Rhyder [2016] NSWWCCPD 60
APPELLANT:	Catholic Healthcare Limited
RESPONDENT:	Fardiani Rhyder
INSURER:	Catholic Church Insurance Limited
FILE NUMBER:	A1-2835/16
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	26 August 2016
DATE OF APPEAL DECISION:	8 December 2016
SUBJECT MATTER OF DECISION:	Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – admission of fresh evidence, application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; operation of s 354 of the 1998 Act and procedural fairness; alleged errors in fact finding; weight of medical evidence – application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271; argument not raised at first instance – application of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray
Respondent:	Garling & Co
ORDERS MADE ON APPEAL:	1. The respondent’s application for leave to rely on fresh evidence pursuant to s 352(6) of the 1998 Act is refused. 2. The Arbitrator’s determination dated 26 August 2016 is confirmed.

INTRODUCTION

This appeal concerns a challenge to findings by an Arbitrator that, due to a conceded injury to the dominant left shoulder, Fardiani Rhyder (the respondent) developed a consequential condition of the right shoulder, and that surgery to the right shoulder is reasonably necessary as a result. For reasons that follow, the appeal does not succeed.

BACKGROUND

The respondent was employed full-time by Catholic Healthcare Limited (the appellant) as a community care worker. Dr Bodel’s history recorded that, at the time she sustained injury, she worked 48 hours per fortnight, performing respite and domestic activities for clients of the appellant. She suffered employment injury to her dominant left shoulder on 9 April 2013, while vacuuming a thick carpet at a client’s house. The appellant accepted liability to pay compensation in respect of the left shoulder injury.
The respondent came under the care of Dr Piper, an orthopaedic surgeon. She underwent surgery to the left shoulder at the hands of Dr Piper on 14 August 2013, involving arthroscopic rotator cuff repair, biceps tenodesis and acromioplasty. She subsequently resumed restricted duties with the appellant, for hours and periods which varied from time to time.
The respondent’s statement dated 30 March 2016 indicated that she commenced suffering from symptoms in the right shoulder, from about early 2015. Dr Piper, in his report dated
27 August 2015, referred to an MRI of the right shoulder dated 20 August 2015, and said it showed “a large rotator cuff tear with severe subacromial bursitis and a large subacromial spur, similar to the findings on the opposite side”. He recommended a right-sided arthroscopic rotator cuff repair with biceps tenodesis and acromioplasty.
The respondent was examined at the appellant’s request by Dr Hitchen, an orthopaedic surgeon, who reported on 12 October 2015. The appellant denied liability for the right shoulder in a s 74 notice dated 23 October 2015. In respect of the right shoulder, the appellant denied ‘injury’, and the satisfaction of s 9A of the Workers Compensation Act 1987 (the 1987 Act). It denied the right shoulder condition arose out of the left shoulder injury. It disputed that the proposed right sided surgery was “reasonably necessary as a result of a work-related injury”.
The respondent’s medical case on her right shoulder is effectively that advanced by Dr Bodel in his report dated 26 February 2016, that there “is a consequential injury on the basis of the previous frank injury to the left shoulder that occurred at work on 09 April 2013”.

THE ARBITRAL PROCEEDINGS

The proceedings were commenced by Application to Resolve a Dispute registered on 1 June 2016. They pleaded a single date of injury, 9 April 2013. It was pleaded that the respondent injured her left shoulder on that date, and “subsequently sustained an overuse injury to her right shoulder”. The claim related solely to the cost of future treatment, being “right shoulder surgery plus hospital accommodation and post operative physiotherapy”.
The proceedings were listed for arbitration hearing on 22 August 2016. Mr Garling, solicitor, appeared for the respondent, and Ms Wood of counsel appeared for the appellant. The matter proceeded on the written material; the legal representatives addressed. At the outset the Arbitrator stated that there was “no dispute that the condition in the applicant’s right shoulder is such that the proposed treatment is reasonably necessary”. The Arbitrator identified the issues requiring his determination (at T2.12-18) as :
(a) “whether the applicant developed a consequential condition in the right shoulder as a result of the accepted injury sustained to the left shoulder on 9 April 2013”, and
(b) “whether the proposed treatment is reasonably necessary as a consequence of the injury on 9 April 2013”.
The appellant’s counsel, in her submissions, placed emphasis on the adequacy (or otherwise) of the evidence, lay and medical, to support the respondent’s argument on causation. The respondent’s solicitor addressed on the proposition that, at one point, the respondent’s working hours were “reduced consequently upon the right shoulder becoming involved” (T18.31-19.27). The respondent’s solicitor (at T19.7-11) submitted:
“Unfortunately we don’t have the earlier certificates. They talk about four hours a day four days per week. In fact the applicant prior to that was doing six hours and you can ask the applicant if you like but she was doing six hours.”
The following exchange occurred:
“ARBITRATOR: Well I haven’t got evidence regarding the - - -
MR GARLING: No, but you could ask the applicant.
ARBITRATOR: I won’t.
MR GARLING: She’s here. But, yes, from four to two at the very least…” (T20.3-11)
Apart from the above (which hardly represents a clear application by the respondent for leave to call oral evidence) there were no applications by the parties to adduce oral evidence or to cross-examine. The Arbitrator reserved his decision.

THE ARBITRATOR’S DECISION

A Certificate of Determination and the Arbitrator’s reasons for his decision (the reasons) were issued on 26 August 2016. There was a finding that the respondent “developed a consequential condition in her right shoulder as a result of the injury sustained to her left shoulder on 9 April 2013”. There was a finding that the proposed surgery was “reasonably necessary treatment” as a result of the employment injury on 9 April 2013. There was an order that the appellant pay for the cost of that treatment, pursuant to s 60 of the 1987 Act.
The Arbitrator, dealing with the issue of whether there was a consequential condition in the right shoulder, quoted the following passage from the decision of Roche DP in Kumar v Royal Comfort Bedding Ltd [2012] NSWWCCPD 8 (Kumar) at [35]:
“By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”
The Arbitrator also quoted the following well known passage from the judgment of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang):
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
There is no challenge in this appeal to the appropriateness of the legal tests identified by the Arbitrator.
The Arbitrator discussed the medical and lay evidence. He preferred the opinions of Dr Bodel and Dr Tan (the general practitioner) to the opinion of Dr Hitchen. He concluded that the constitutional condition in the respondent’s right shoulder was aggravated (reasons at [82]). He said that a “common sense evaluation of the causal chain in accordance with Kooragang” led to a conclusion that the right shoulder condition was “a consequence of the injury sustained to her left shoulder” (reasons at [83]).
Dealing with whether the proposed surgery was reasonably necessary, the Arbitrator (after quoting s 60 of the 1987 Act) referred to Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose), Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233 (Bartolo) and Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). The Arbitrator said “the relevant criteria identified in Rose, Diab and Bartolo have been largely satisfied” (reasons at [94]). He noted that Dr Hitchen’s opinion that “the proposed surgery is required to treat the constitutional pathology” was given in the context of Dr Hitchen not accepting that there was any aggravation of the pathology. The Arbitrator said that, based on his findings, “the need for the treatment arises from the said aggravation” (reasons at [95]).

ISSUES IN DISPUTE

The identified grounds of appeal are:
(a)     Ground No 1: That the Arbitrator erred in accepting the opinion of Dr Bodel as providing support for the respondent’s case.
(b)     Ground No 2: That the Arbitrator erred in finding that the respondent performed housework and domestic duties with her right arm following her left shoulder injury.
(c)     Ground No 3: That the Arbitrator erred in determining that Dr Piper was supportive of the appellant’s case on the issue of causation.
(d)     Ground No 4: That the Arbitrator erred in his evaluation and rejection of the opinion of Dr Hitchen.
(e)     Ground No 5: That the Arbitrator erred in concluding that Dr Tan was supportive of the respondent’s case on causation.

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.”
The appellant submits that the appeal can be decided on the papers. The respondent’s primary submission is to the same effect. However, the respondent has made an application to rely, as fresh evidence, on her further statement dated 3 November 2016. The submissions made in support of that application are set out at [30] below. I take the respondent’s submission to be that, if leave for the fresh evidence is granted, an oral hearing should occur. As this leave was refused, for reasons which appear below, I take the respondent to agree that the appeal can be decided on the papers.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

The appellant submits that the threshold issues in ss 352(3) and 352(4) of the 1998 Act are satisfied. The respondent makes no submission to the contrary. The Application to Appeal was lodged in the Commission on 23 September 2016, within the time provided in s 352(4). The requirements as to quantum and time in ss 352(3) and 352(4) of the 1998 Act have been met.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see s 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under s 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No 6 also provides that, if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·        a schedule of the fresh or additional evidence;
·        a copy of the fresh or additional evidence;
·        a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·        submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
In CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 (Strickland) Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“31. … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The power to admit fresh or additional evidence is therefore concerned with evidence that, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous: Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 per Sackville AJA (Basten and Ward JJA agreeing) at [66].
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca) at [28] said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)

The Fresh Evidence

The fresh evidence is a statement of the respondent dated 3 November 2016. It describes the respondent’s pre-injury duties with the appellant. It describes the respondent’s duties with the appellant on selected duties after the left shoulder injury, and how these varied from time to time. It describes that she carried out housework (with some restrictions) after the left shoulder injury. It describes the onset of right shoulder symptoms “from about March 2015”.

Submissions on Fresh Evidence

The respondent, in support of the application to rely on fresh or additional evidence on appeal, submits:
“22. There was some discussion at point 5 page 20 with regard to the hours that the worker had performed upon her return to work with the Respondent and the duties that were performed. Mr Garling for the Worker suggested that if the Arbitrator had any doubts about such evidence that the Appellant [sic] was available to give evidence if necessary. The Arbitrator rejected the need for the Appellant [sic] to provide any further evidence in that regard.
23. On this basis, the Respondent Worker has provided new evidence in the form of an additional statement dated 3 November 2016, attached to the Submissions. Should the Commission determine that further evidence of the worker is necessary or [sic] in relation to the hours and use of the right arm that she was performing at the relevant time, then it is appropriate for the worker to be given an opportunity to adduce further evidence on this point by way of oral hearing.
24. Should the Commission determine that further evidence from the Worker is necessary in relation to the hours and use of the right arm that she was performing at the relevant time, then it is appropriate for the worker to be given an opportunity to adduce further evidence of this point.”
The respondent’s Notice of Opposition (which includes the application to rely on fresh evidence) was lodged on 9 November 2016. The appellant lodged amended submissions dated 10 November 2016, after transcript of the arbitration hearing became available. These submissions do not deal with the fresh evidence application. The appellant lodged written submissions on 5 December 2016, opposing the respondent’s application to rely on fresh evidence. In essence, it submitted that neither of the limbs in Strickland was satisfied, and that substantial injustice would occur if the application were granted.

Discussion

The s 74 notice dated 23 October 2015, disputing liability for the condition of the right shoulder, placed reliance on Dr Hitchen’s report dated 12 October 2015. Under “Reasons for Decision” the notice spelled out aspects of Dr Hitchen’s recorded history on which the appellant relied. These included the respondent’s difficulty in explaining “any particular specific increased load” placed on the right arm, the fact that the respondent was on “restricted duties” in which she “did not perform any repetitive overhead activity”, and the history that the respondent’s daughter was “performing the housework”. The respondent would have been in possession of the notice, and Dr Hitchen’s report, from shortly after the date of the notice. It should have been apparent from that time that the level and nature of the respondent’s activities involving her right shoulder, subsequent to the conceded injury to the left shoulder, were in issue.
The Arbitrator made reference to the inadequate nature of the respondent’s statement dated 30 March 2016. In his reasons at [61] he said:
“Unfortunately, it appears that the applicant drafted her statement without any input from her solicitor. Most of the content is a summary of the medical evidence. It would certainly have been preferable for Mr Garling to assist with the drafting of this document.”
The respondent, on the application to admit fresh evidence, has made little attempt to address the matters specified in Practice Direction No 6. A copy of the fresh evidence, the respondent’s statement dated 3 November 2016, is attached to the Notice of Opposition. The respondent’s submissions on the application to admit fresh evidence are quoted at [30] above. They do not address why the evidence could not, with reasonable diligence, have been obtained and tendered before the Arbitrator. They do not address the credibility of the evidence. They do not address whether there is a high degree of probability of a different decision, if the evidence is admitted, as opposed to not being admitted. They do not deal with whether the interests of justice favour its admission. They do not specifically address either of the limbs of the relevant test, as identified in Strickland.
It is difficult to conceive of any reason why the fresh evidence could not have been available to be used at the arbitration hearing. All that was required was for appropriate instructions to be taken from the respondent, and to have her execute a resultant second statement. The fact that such evidence could reasonably have been obtained and used in the arbitration proceedings, at the hearing, means (subject to what follows) that the first limb of the test in Strickland does not assist the respondent.
The respondent’s submissions at [22] suggest that the Arbitrator was responsible for rejecting a proposal that the respondent give evidence at the arbitration hearing, additional to that contained in her statement dated 30 March 2016. It is inferred that this was a potential reason for why such evidence was not adduced at the arbitration hearing. The relevant passages of transcript are quoted at [9]-[10] above. In my view the Arbitrator did not do what is submitted.
Section 354 of the 1998 Act provides:
“354  Procedure before Commission
(1)    Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)    The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)    The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)    Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)    Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)    An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a)  if it is satisfied that the proceedings have been abandoned, or
(b)  if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)  for any other ground of dismissal specified in the Rules.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
The provision gives the Commission broad powers to inform itself. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) McColl JA (Giles and Tobias JJA agreeing), at [87] said:
“Section 354 and other provisions give the Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng[2006] NSWCA 34 at [22] per Bryson JA (Handley JA and Bell J agreeing).”
Her Honour in the same case at [88] said that “[p]rovisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions”, her Honour citing Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA as authority for this proposition.
McColl JA in Edmonds at [90]-[91] said:
“90. In Sue v Hill[1999] HCA 30; (1999) 199 CLR 462 (at [42]) Gleeson CJ, Gummow and Hayne JJ said of s 364 of the Commonwealth Electoral Act 1918 (Cth), another ‘substantial merits - without regard to legal forms or technicalities’ clause, that ‘[such] [p]rovisions do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.’
91. Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bondand Others[1990] HCA 33; (1990) 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2)[1977] HCA 26; (1977) 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged ‘to observe the recognized standards of judicial fairness’ (Testro Bros Pty Ltd v Tait[1963] HCA 29; (1963) 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bondand Others (at 366 – 367) per Deane J.”
In the same case at [93]-[94] McColl JA, discussing the nature of the Commission’s jurisdiction, said:
“93. It is not clear from the documents placed before the Court precisely what the references to ‘inquisitorial role’ and the ‘inherently inquisitorial character of the process’ are intended to mean. It might be accepted that the absence of an obligation to abide by the rules of evidence, the Commission’s powers to inform itself in any manner it thinks appropriate, to determine its own procedure, to conduct informal hearings, and indeed to dispense with a hearing are indicia of an inquisitorial ‘character’ in Commission proceedings: see Creyke and Bedford: Inquisitorial Processes in Australian Tribunals (AIJA, Melbourne, 2006, at 15)); see also Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd[2006] NSWCA 323 at [219] per McClellan CJ at CL.

94. Nevertheless, although the Commission operates pursuant to a legislative framework which frees it, to some degree, from ‘constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals’ (Minister for Immigration and Multicultural Affairs v Eshetu at [49]), it is modelled on adversarial proceedings to the extent that issues are primarily defined by what for convenience can be described as ‘pleadings’ (cf the primary judgement at [11]), the parties are entitled to be represented by a legal practitioner or agent and they adduce the evidence upon which they wish to rely before the Arbitrator. The proceedings ‘take the form of litigation between parties’: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ).”
In Paul Segaert Pty Limited trading as Lidco v Narayan [2006] NSWWCCPD 296 Roche DP dealt with an allegation of apprehended bias involving an arbitrator. Dealing with the exercise by an arbitrator of his powers pursuant to s 354(2) of the 1998 Act, the Deputy President at [73] said:
“Arbitrators should always be vigilant not to be, or give the appearance of being, an advocate for one side. In my opinion the Arbitrator in the present case acted fairly and with due regard to the principles of procedural fairness and the legislative provisions under which the Commission operates.”
In Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358 Bryson JA at [31] said:
“The ordinary expectation should reasonably be that every material thing which a witness has to say about the facts will appear in the statement of the witness produced before the Arbitration hearing by the person who relies on what a witness has to say.”
Stanton v Shoalhaven City Council [2008] NSWWCCPD 58 was a matter in which the parties were legally represented at an arbitration hearing. The employer did not seek to cross-examine the worker. The worker’s counsel invited the arbitrator to use the Commission’s “inquisitorial powers”, to assess the worker’s credit, saying “Mr Stanton is here if you wish to ask him questions so that that might assist your determinative process.” It is said “The Arbitrator did not respond to this invitation.” The arbitrator ultimately did not accept the worker’s evidence going to ‘injury’. Byron DP at [109] and [111] observed:
“109. In the instant matter legal practitioners represented both parties. There is no indication that the parties were in any way constrained in the conduct of their cases in the proceedings. Mr Stanton was not prevented from putting his case comprehensively, before the Arbitrator.”
“111. In my view the Arbitrator acted fairly, impartially and with due regard to the principles of procedural fairness. On the basis of the written evidence before him (noting that Mr Stanton elected not to give oral evidence) and the oral submissions made during the arbitral hearing, it was open to the Arbitrator to come to his own conclusion as to Mr Stanton’s assertions with respect to the claimed injury to his right shoulder, and whether he considered this was work-related. In this case it may be assumed that he did not consider it necessary or appropriate to exercise proactively, ‘inquisitorial powers’, and that he was satisfied to rely upon his analysis and assessment of the evidence that was before him. It was always open to Mr Stanton to reinforce his own evidence, and it was not for the Arbitrator to act in aid of furthering Mr Stanton’s case, as distinct from giving due consideration to the evidence.”
In the current matter, the case of each party was being presented by its legal representative. The Arbitrator would have been entitled, as a discretionary matter, to take evidence from the respondent. However he also had an obligation to afford procedural fairness to both parties, and to “observe recognised standards of judicial fairness”. Consistent with this, the Arbitrator had an obligation not to act, or appear to be acting, as an advocate for one side or the other. The Arbitrator did not, contrary to the respondent’s submission, reject the need for the respondent “to provide any further evidence in that regard”. What he declined to do was to ask the respondent questions, about an area of evidence that was in issue between the parties, where the appellant’s submissions attacked the adequacy of the evidence, and the respondent had not sought to put on further evidence, or herself make an application (which would be discretionary) to give oral evidence on the topic. The Arbitrator’s conduct in this regard was proper, and consistent with the authorities (including Edmonds) referred to above.
The respondent’s submissions at [23] state that “the Respondent Worker has provided new evidence in the form of an additional statement dated 3 November 2016” on the basis of the Arbitrator’s rejection of the need for further evidence. There was no such rejection, and the basis of that submission is rejected.
This leaves the second limb, is the further statement evidence of such a nature “that failure to grant leave would cause substantial injustice in the case”? Applying Strickland, is the result that would emerge different depending on whether the fresh evidence is taken into account? As was observed by Roche DP in Drca at [26], “[t]his requires a consideration of what the result ‘would’ be if the evidence were excluded and what the result ‘would’ be if it were admitted”, involving “careful consideration of the merits of the grounds of appeal”.
In considering the appellant’s submissions on the appeal, I have had reference to the amended submissions lodged on 10 November 2016, after the official transcript was available to the parties.
For reasons which follow, I have concluded that the appeal does not succeed in any event, if the fresh evidence is not taken into account. It follows that the second limb in Strickland is not satisfied. The respondent’s application pursuant to s 352(6) of the 1998 Act to rely on fresh evidence is refused.

THE NATURE OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

GROUND NO 2 – ACTIVITIES WITH THE RIGHT ARM FOLLOWING THE LEFT SHOULDER INJURY

It is convenient to deal with ground no 2 initially, as resolution of this ground could be relevant in dealing with the other grounds. The ground is that the Arbitrator erred in finding that the appellant performed housework and domestic duties with her right arm following her left shoulder injury.

The Appellant’s Submissions

The appellant refers to the appellant’s activities, following her left shoulder injury, as “[c]entral to the question of the connection” between the appellant’s left shoulder injury and her right shoulder symptoms. The appellant refers to alleged deficiencies in the respondent’s statement. It refers to the lack of specificity in the respondent’s statement regarding what “domestic or self-care duties” were carried out with the right arm after the left shoulder injury.
The appellant refers to Dr Bodel’s recorded history that the respondent “struggles with household maintenance and cleaning activities and her children help her”. It refers to the Arbitrator’s reasons at [65] where he said:
“I have no reason to doubt that she used her right arm more when she performed her daily domestic and work activities in order to protect her injured left shoulder.”
The appellant contrasts this passage with the following history recorded in Dr Hitchen’s report dated 12 October 2015:
“Specifically when asked what excess work she has done with her right arm, Ms Rhyder had difficulty explaining any particular specific increased load. She did not perform any repetitive overhead activity with the arms as she had been restricted on her WorkCover certificate. At home she advised that her daughter was performing the housework, including vacuuming, cooking and cleaning.”
The appellant refers to Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, 21 NSWCCR 389 at [70], as authority for the proposition that a “history recorded by a medical practitioner is evidence of the facts recorded”. It submits that “the Arbitrator has seemingly disregarded the evidence that the respondent worker did not perform housework post her left shoulder injury”. It submits that no reasons were given by the Arbitrator for his “rejection of Dr Hitchen’s history”. The Arbitrator’s reasons at [71] noted that Dr Bodel’s history did not say that the children did all of the household duties. The Arbitrator said that the children would not have been at home all of the time, and the appellant “would still have to do some of the housework”. The appellant attacks this factual conclusion as contrary to Dr Hitchen’s “clear and unequivocal statement that the [appellant’s] daughter performed the housework”.
The appellant submits the Arbitrator’s conclusion, that the respondent “continued to perform housework following the work injury, and… relied upon her right arm to perform housework following the left shoulder injury, thereby causing her right shoulder condition”, involved error.

The Respondent’s Submissions

The respondent’s submissions on this ground commence by relying on her statement dated
3 November 2016. This is the fresh evidence, which was not before the Arbitrator, in respect of which the respondent requires leave pursuant to s 352(6) of the 1998 Act. Leaving that evidence to one side, the respondent submits that it is “common sense that in everyday life you must use both arms when performing everyday activities which include housework, domestic duties and work performed on behalf of the employer.”
The respondent also refers to the submissions at T19-21, which encompass the passages quoted at [9]-[10] above. The respondent’s submissions state that, after her left shoulder injury, she attended the homes of elderly patients to assist them, and “must have used both arms on a regular basis”.
The respondent refers to her statement dated 30 March 2016, where she said:
“… [Dr Hitchen] totally ignored the simple fact that I have always been left-handed and having been forced to transfer all normal everyday, manual activity, including restricted CHCS duties to my weaker right hand as a result of my left shoulder work-related injury was alone sufficient to cause this new injury to my less-used right shoulder.”
Overall, the respondent submits “there is clear evidence that the Worker both in her own personal activities and whilst employed by the Respondent, favoured her right arm at the time because of her left arm injury”.

Discussion

In considering the evidence going to activities involving the respondent’s right arm, following injury to her left shoulder, the Arbitrator identified the following:
(a)     He said that her pre-injury duties involved “domestic activities and respite work”. He said “[i]t seems that on her return to work she still did similar work but worked within the restrictions identified in her medical certificates”. The Arbitrator noted that “[i]n April 2015 Dr Piper recorded that the applicant’s restricted duties still involved occasional lifting of patients and this was proving difficult”. (reasons at [62])
(b)     He noted the respondent’s evidence was not challenged, that she had no shoulder problems prior to 9 April 2013, and thereafter “had problems with her left shoulder”. (reasons at [63])
(c)     The respondent said that in May 2015 she told Dr Tan about her right shoulder pain, and he “attributed this to favouring her right arm”. (reasons at [64])
(d)     The Arbitrator said that he had no reason to doubt that the respondent “used her right arm more when she performed her daily domestic and work activities in order to protect her injured left shoulder”. He noted that Dr Piper confirmed that the respondent was still doing some lifting in April 2015, when she was working only four hours per week. (reasons at [65])
(e)     The reduction in the respondent’s work capacity in June 2015 to “two hours per day/two days per week”, seemed to “coincide with worsening symptoms in the applicant’s right shoulder, as well as the worsening symptoms in her left shoulder due to increased use”. He referred to Dr Tan’s certificate dated 24 June 2015. (reasons at [67])
(f)      Dr Piper’s reports referred to the respondent, after the left shoulder surgery, having ongoing trouble with pain and restricted ability to undertake domestic and work activities. He noted the development of “right shoulder pain in January 2015”. (reasons at [68])
(g)     In August 2015 Dr Piper “acknowledged that the applicant was favouring her right shoulder due to her pain… he was fully aware of the history”. (reasons at [69])

The Evidence of Dr Piper

The respondent was under the care of Dr Piper from 30 April 2013. Following surgery to the left shoulder on 14 August 2013, on 16 October 2013 Dr Piper recorded that the respondent was “returning to work next week”. He recommended “no lifting greater than 5 kg, no working above shoulder height and no repetitive motion of the shoulder such as sweeping or vacuuming”. On 19 December 2013 Dr Piper recorded ongoing discomfort in the shoulder, slow progress with her physiotherapy sessions and slow improvement with time. He advised “a graduated return to work program”. On 18 March 2014 Dr Piper recorded “mild adhesive capsulitis”, and a graduated return to work.
On 25 November 2014 Dr Piper reviewed the respondent, and recorded:
“Fardiani has been troubled by ongoing pain in the shoulder. She has returned to work and is performing 4 days per week and working roughly 3-5 h/day on restricted duties. Some of her work duties involve working at the nursing home, and others in the Community. She would like to get back to full duties but is restricted by ongoing pain in the shoulder.”
On 9 April 2015 Dr Piper recorded:
“Unfortunately she is complaining of ongoing pain in the shoulder… She reports ongoing night pain, pain in the mornings, and pain with prolonged forward flexion such as when driving. She also reports significant weakness in association with the pain… She is working on light duties.”
And:
“In addition, she may need to consider alternative employment for a more sedentary roll [sic, role], as her current role as an aged care worker requires occasional lifting of patients, and this is proving difficult for her with her ongoing shoulder pain.”
Dr Piper reported again on 20 July 2015. He took a history of “ongoing symptoms in the left shoulder including ongoing pain and stiffness” which had failed to resolve. The history included:
“Unfortunately Fardiani is now troubled by right shoulder pain. She does not recall any specific injury, but feels the shoulder pain has developed as she has been compensating for her left shoulder. She reports pain since January, but the pain has been particularly bad since April… She reports difficulty driving, and is having trouble getting back to full duties at work. She is currently working 2 hrs/day 2 days per week.”
At that point, Dr Piper said the respondent had “signs and symptoms of a right shoulder rotator cuff tear”. On 27 August 2015 Dr Piper recorded that the respondent was working “2 half days 2 days per week”. There was a history from the respondent that she was “also favouring her right shoulder due to her pain, and is reporting some recurrent symptoms in the left shoulder due to the increased use of the left arm”. Dr Piper, in that report, recommended surgery to the right shoulder. On 3 September 2015 Dr Piper wrote to the appellant’s insurer, enclosing an estimate of the cost, and recommending surgery “as outlined in the attached letter to the general practitioner”. Dr Piper said the respondent’s “employment at CHCS was a substantial contributing factor to the need for surgery”. Dr Piper sought “approval for the above procedure”.

The Evidence of Dr Tan

Dr Tan’s certificate dated 4 March 2015 referred to symptoms in the left shoulder only. It said the respondent had a capacity to work four hours per day, four days per week. There was to be no lifting/carrying over four kilograms, and no pushing/pulling greater than four kilograms. It said there should be a five minute rest break every hour, “rest if needed, cease if pain develops, no above shoulder level work”. The certificates of 8 April 2015 and 6 May 2015 were in similar terms.
Dr Tan’s certificate dated 3 June 2015 reduced the respondent’s working capacity to two hours per day, two days per week, and included the history “Past 2 months, right shoulder pain”. The comment continued:
“The right shoulder findings could well be a result of her using her right upper limb preferentially to compensate for her left shoulder chronic pain”.
Dr Tan’s certificate dated 24 June 2015 recorded two areas of symptomatology, “persistent L shoulder pain” and “R shoulder pain –full thickness tear of the anterior and mid supraspinatus tendon with debris within the defect. Tendinosis of the residual posterior supraspinatus fibres. Mild subacromial bursitis. Mild subscapularis insertional tendinosis.” The certificate gave a single date of injury, 9 April 2013. Adjacent to the question on the certificate “Injury/disease is consistent with patient’s description of cause” the doctor has inserted “Yes”.
The certificate said the respondent had the capacity to work two hours per day, two days per week, with no lifting greater than four kilograms, and no pushing or pulling greater than four kilograms. It said the respondent required a five minute rest break every hour, “rest if needed, cease if pain develops, no above shoulder level work”.
Dr Tan’s certificate dated 12 October 2015 was in the same terms, except the capacity to lift, and to pull or push, was reduced from four kilograms to two kilograms.
Dr Tan’s opinion on causation will be discussed under a subsequent ground. For current purposes, it should be noted that, from 3 June 2015, there was a history of right shoulder symptoms for the previous two months, in tandem with a history that the right sided symptoms were associated with use of the right arm to compensate for chronic left shoulder pain.

The Evidence of Dr Bodel

Dr Bodel’s report is based on a single examination on 16 February 2016. The history confirmed the respondent’s left-handedness. It noted that, following surgery to the left shoulder, the respondent was cleared for light duty activities, lifting not more than five kilograms and not working overhead. Dr Bodel summarised Dr Piper’s serial reports up to 20 July 2015. He said that, at the time of his examination, the respondent was working “two hours a day, two days a week with a 2 kg lifting limit doing respite work only”.
Dr Bodel said the respondent “developed a gradual onset of right shoulder girdle pain”. He recorded that “[a]ny attempt to push, pull or lift or use the arms overhead can aggravate the pain”. By way of activities of daily living, he recorded the following history:
“She struggles with household maintenance and cleaning activities and her children help her. She reports that she can drive an automatic motor vehicle but no more than about 10 to 15 minutes. She can only get down to the shops and back. She cannot push, pull or lift and cannot use her arms overhead.”
Dr Bodel recorded that the respondent’s children were aged fourteen and eighteen at the time of his assessment.

The Respondent’s Evidence

The particular passage of the respondent’s statement on which she relies, going to this ground, is quoted (in part) at [60] above.

Consideration

The appellant’s submission that a medical history is evidence of the facts recorded is correct: Guthrie v Spence [2009] NSWCA 369 at [75], Smith v Parkes Shire Council [2010] NSWWCCPD 130 at [96], Lukac v Berkeley Challenge Pty Ltd t/as Spotless [2016] NSWWCCPD 56 at [126]. This applies to the history recorded by Dr Hitchen, as it applies to the histories recorded by other medical practitioners.
Dr Hitchen recorded that the respondent “had difficulty explaining any particular specific increased load”, when the doctor “asked what excess work she had done with her right arm”. How a term such as “excess work” was to be understood is unclear. The report does not reveal what the respondent said in response to this query. That there was a difficulty in explanation (in the doctor’s assessment) does not amount to a statement by the respondent that there were no increased loads on her right shoulder due to the original left sided injury. At the most, it is a statement by the doctor that the respondent was unable to give an explanation which the doctor could understand, to a query (however it was expressed). The probative weight of such evidence is slight.
Dr Hitchen also recorded that “[s]he did not perform any repetitive overhead activity with the arms as she had been restricted on her WorkCover certificate”. The restriction was limited to the contents of the WorkCover certificates. At its most, this would be consistent with the respondent stating that she did not perform repetitive overhead activities as part of her restricted duties, when she resumed at work following her left shoulder surgery. It does not say that the respondent did not otherwise carry out overhead activities (whether repetitive or not), for example in self-care or around her home. It is not inconsistent with the respondent carrying out overhead activities at work, when on restricted duties, providing these were not repetitive.
The appellant places particular reliance on Dr Hitchen’s stated recorded history, “she advised that her daughter was performing the housework including vacuuming, cooking and cleaning”.
The appellant submits that the Arbitrator’s finding at [65] of the reasons (quoted at [62(d)] above) “disregards Dr Hitchen’s clear history that the respondent worker’s daughter performed the housework”. The submission continued that the “daily domestic duties” referred to would be expected to include “vacuuming, cooking and cleaning”. The appellant refers to the Arbitrator’s reasons at [75], where he said that, notwithstanding the history of the daughter performing housework, he expected that the respondent “performs some domestic tasks, whether heavy or light. Even self-care, such as combing her hair, would have posed some difficulties”. The appellant submits that, to the extent to which the Arbitrator rejected Dr Hitchen’s history, he gave no proper reasons for doing so.
The appellant’s fundamental submission on this topic is set out at [34] of its submissions, that the Arbitrator erred in concluding that the respondent continued to perform housework following the work injury, and in finding that she relied on her right arm to perform such work, causing her right shoulder condition.
The term “housework” is a general one, and may mean different things to different people. It does not identify specific activities. There was a body of other evidence which required consideration, in addition to the history recorded by Dr Hitchen, on which the appellant relies.
Dr Piper’s history, recorded on 25 November 2014, was that the respondent was back at work for three to five hours per day, four days per week, on restricted duties, both at the nursing home and in the community. His history on 9 April 2015 was of ongoing pain with prolonged forward flexion such as when driving, and significant weakness in association with the pain. The respondent was occasionally required to lift patients, which proved difficult. On 20 July 2015 Dr Piper recorded a history of right shoulder pain which had developed as the respondent was compensating for her left shoulder. It had been present since January, and particularly bad since April. Her hours had been reduced to two hours per day, two days per week.
The available documentary evidence of Dr Tan comprises certificates. Those from 3 and 24 June 2015 contain the reference that “right shoulder findings could well be a result of her using her right upper limb preferentially to compensate for her left shoulder chronic pain”. This would be consistent with Dr Tan having an understanding at that time that there had been preferential use of the right arm. In her statement dated 30 March 2016, the respondent said that Dr Tan had expressed an opinion that:
“… the right shoulder injury was a natural result of favouring my non-dominant right arm (I have always been left-handed) to compensate for the work-related injury to my left shoulder.”
The respondent, in her statement dated 30 March 2016, said that she told this to her case manager, Ms Skillicorn, in an email on 10 June 2015. There is no evidence to the contrary. This stated opinion is also consistent with Dr Tan’s certificates from 3 and 24 June 2015. The Commission is not bound by the rules of evidence; there is no prohibition against hearsay material and opinion evidence: s 354(2) of the 1998 Act, Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 at [136]. This is subject to r 15.2 of the Workers Compensation Commission Rules 2011. This hearsay evidence was entitled to some weight.
Dr Bodel, in his report dated 26 February 2016, referred to Dr Piper’s report dated 20 July 2015, including the history of right shoulder pain developing as the respondent “has been compensating for the left shoulder”. He assessed causation on that basis, saying:
“… the favouring of the right side while recovering from a difficult surgical procedure on the left hand side has led to aggravation, acceleration, exacerbation, and deterioration of the underlying pathology in the right shoulder and that is the ‘injury’ in this circumstance.”
Dr Bodel recorded that the respondent “struggles with household maintenance and cleaning activities and her children help her”. This history is at variance with that recorded by Dr Hitchen, if Dr Hitchen’s is taken literally as meaning that the respondent did no household activity of any description. The appellant’s submissions say this history of Dr Bodel’s dealing with domestic duties was recorded on 16 February 2016:
“… some 12 months after the onset of right shoulder symptoms, and does not support that the respondent worker was performing any housework in the lead up to the onset of her right shoulder condition.”
Dr Bodel’s history on this point did not tie itself to any particular moment in time. The comment could also be made that Dr Hitchen’s history was recorded on 8 October 2015. On Dr Piper’s history, this was about nine months after right shoulder symptoms commenced, and about six months after they became “particularly bad”. Dr Hitchen’s stated recorded history also was not specific as to time.
The Arbitrator, in his reasons at [71], inferred, having regard to the ages of the children (they were teenagers) that “they would not have been home all of the time”, and the respondent “would still have to do some of the housework”. I do not read Dr Hitchen’s history as being of such an extreme nature that it would be inconsistent with the respondent doing any activity of any sort around her house. This inference was, in my view, available. It was consistent with the preponderance of the medical histories going to the respondent’s activities. It was “an exercise of the ordinary powers of human reason in the light of human experience”: G v H [1994] HCA 48; 181 CLR 387; 124 ALR 353, see also Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
The history in the respondent’s statement dated 30 March 2016 was that she was “forced to transfer all normal everyday manual activity, including restricted CHCS duties to my weaker right hand as a result of my left shoulder work-related injury”. The appellant’s submissions assert that this passage from the respondent’s statement “does not indicate what, if any, domestic or self-care duties she was required to perform with her right arm following the left shoulder injury”. It should be noted that the respondent’s statement on this issue was not restricted to domestic or self-care duties, it included her “restricted CHCS duties”. Dr Piper’s histories indicate these included duties at a nursing home, in the community, driving and the occasional lifting of patients. The appellant has not put on any lay evidence going to the respondent’s duties at work following the left shoulder injury.
The appellant’s challenges on this ground refer to the Arbitrator not giving proper reasons for not accepting Dr Hitchen’s history, and disregarding “Dr Hitchen’s clear history” about the daughter’s performance of housework. The Arbitrator dealt at length, at [34]-[41] of his reasons, with the reports of Dr Hitchen. This included acknowledging the historical aspects on which the appellant has dwelt in its submissions (reasons at [36]). The Arbitrator, at [35] of his reasons, referred to Dr Hitchen’s history of an onset of right shoulder pain from “mid-2015”, these symptoms being “worse with reaching activities, overhead movement and at night”. It is obviously inherent in this history that reaching and overhead movements were carried out.
The Arbitrator dealt with the evidence in the respondent’s statement dated 30 March 2016, the certificates of Dr Tan, and the reports from Dr Piper and Dr Bodel. He dealt with the hearsay evidence from Dr Tan going to causation of the right shoulder problem (reasons at [64]). He said at [65] that he had “no reason to doubt that [the respondent] used her right arm more when she performed her daily domestic and work activities in order to protect her injured left shoulder”. He noted a history in April 2015 that the respondent still did some lifting. He noted the reduction in working hours in June 2015 “would seem to coincide” with worsening shoulder symptoms. At [68]-[69] the Arbitrator referred to Dr Piper’s reports, including the history of restrictions on the respondent’s ability to carry out domestic and work activities, and the development of right shoulder symptoms.
The Arbitrator at [70]-[72] of his reasons referred to Dr Bodel’s reports. He noted Dr Bodel’s history was not of the children doing “all of the household duties”. The Arbitrator considered it likely, given the ages of the children, that the respondent “would still have to do some of the housework”. The Arbitrator dealt with Dr Hitchen’s views at [73]-[79]. He noted, based on that doctor’s history, that the respondent “must have undertaken some overhead activities”. At [75] the Arbitrator said he expected that the respondent “performs some domestic tasks, whether heavy or light”. As previously observed, this was an available inference in the circumstances. The Arbitrator said that Dr Hitchen’s history of “minimal nursing work” suggested that the respondent did “some nursing activities” (reasons at [76]).

I do not accept that the Arbitrator erred in the view he formed regarding the housework and domestic duties performed by the respondent, following her left shoulder injury. It was not simply a question of the acceptance or rejection of Dr Hitchen’s history. There were other pieces of history, recorded by other doctors, together with the statement dated 30 March 2016, which contributed to the Arbitrator’s analysis of the facts.
The Arbitrator’s assessment of the evidence overall, on this issue, was thorough and took appropriate account of Dr Hitchen’s reports (including the history) along with the other evidence. Although this ground did not specifically challenge the Arbitrator’s treatment of evidence going to the respondent’s duties at work post-injury, that was a related matter, going to whether the right shoulder condition resulted from the initial injury to the left shoulder. The Arbitrator’s overall assessment of the level of the respondent’s physical activity, following her left shoulder injury, was reasonably available on the evidence and does not involve error.
Ground No 2 fails.

GROUND NO 1 – DR BODEL’S OPINION

This ground asserts that the Arbitrator erred, in accepting that Dr Bodel’s opinion supported the respondent’s case.

The Appellant’s Submissions

The attack on the opinion of Dr Bodel has three distinct limbs. These are:
(a)     Whether there was sufficient correlation between Dr Bodel’s history and the lay case advanced by the respondent, for Dr Bodel’s opinion to have weight.
(b)     Whether Dr Bodel gave sufficient explanation for his opinion for it to carry weight. To use the language of McColl JA in Edmonds, was the opinion a “bare ipse dixit”?
(c)     Whether Dr Bodel’s opinion was supportive of the respondent’s case? Was the doctor’s opinion that the right shoulder symptoms were “constitutional” in nature, rather than “the result of the left shoulder injury?”
On the first of these arguments, the appellant submits that Dr Bodel had “no history of right shoulder symptoms developing due to [the respondent] protecting the left shoulder”. Dr Bodel “did not opine that the symptoms were the result of overuse or favouring”. The appellant submits the doctor “had no history of any increased reliance upon the right arm”. The appellant submits that Dr Bodel’s report does not demonstrate “satisfactory compliance with the principles governing expert evidence”: Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock).
On the second of the arguments, the appellant submits that Dr Bodel’s “bare opinion” lacked probative value. The appellant refers to Edmonds at [130], “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”.
On the third of the arguments, the appellant submits that Dr Bodel agreed with Dr Hitchen that “the right shoulder symptoms are constitutional in basis”. In this, Dr Bodel was not supportive of the case the respondent sought to make. The verbiage used by Dr Bodel, dealing with injury to the right shoulder, was that appropriate to proof of a ‘disease injury’ pursuant to s 4(b)(ii) of the 1987 Act. This was not the correct question.

The Respondent’s Submissions

On the first of the arguments, the respondent submits that the history on which Dr Bodel relied specifically referred to and relied on the reports of Dr Piper, whose report said that “the right shoulder condition was a consequence of the Worker protecting her left shoulder”. The respondent submits that there was adequate evidence to support Dr Bodel’s opinion.
On the second of the arguments, the respondent’s position appears to be that the lay evidence provides adequate explanation for the opinion of Dr Bodel, who referred to the respondent’s evidence of returning to work after the left shoulder injury, and struggling with household maintenance and cleaning activities.
On the third of the arguments, the respondent refers to Dr Bodel’s finding (which is consistent with the ‘disease’ provisions of the legislation). By implication, the respondent appears to submit that the opinion carries sufficient probative value on the causation issue.

Discussion

The First Limb

Dr Bodel, in his report dated 26 February 2016, indicated that “[u]nless otherwise stated, the given history was that provided by the claimant at the time of the consultation”. He also indicated that he had “reviewed all the documentation provided”, and had considered it in preparing his report. The passages of recorded history, dealing with the respondent’s progress after her referral to Dr Piper, appear to have been compiled largely by reference to Dr Piper’s reports. The material may have been checked with the respondent as part of the history taking, although this is not apparent from the report.
The appellant refers to the Arbitrator’s reasons at [70], where he said:
“It would appear that Dr Bodel relied more on the history recorded in Dr Piper’s reports when he examined the applicant. He did not seem to obtain a history that she developed symptoms in her right shoulder as a result of protecting her injured left shoulder, but nevertheless, he was aware that the applicant had told Dr Piper that this was the case.”
The appellant submits that, “having conceded that Dr Bodel has no history of right shoulder symptoms developing due to her protecting the left shoulder, the Arbitrator should not have accepted Dr Bodel’s opinion as carrying any weight on the question of causation…”. The appellant submits that, “[w]ith the exception of a reference to the contents of Dr Piper’s report” the Arbitrator did not have a history of these matters. It also submits that Dr Bodel “had no history of any increased reliance upon the right arm, including reference to specific tasks performed”. The appellant submits that “Dr Bodel did not set out the facts observed, nor did he properly elaborate on any assumed facts”.
The appellant, in support of this submission, refers to Hancock at [85] where Beazley JA said:
“Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”
In Hancock at [83] Beazley JA (Giles and Tobias JJA agreeing) said:
“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 [Bell] at [19] per Hodgson JA.”
Hodgson JA (Tobias and McColl JJA agreeing) in Bell at [19]-[20] said:
“19 As regards the second matter, the question of admissibility as such does not strictly arise. Section 354 of the WIM Act states that the Commission is not bound by rules of evidence. Accordingly, this contention can succeed only if the relevant opinion of Dr Conrad was of no rational probative value, and as such, as a matter of law, of no weight. In my opinion, that result does not follow from Makita, particularly in the light of later discussions of that case in cases such as Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited[2002] FCAFC 157, (2002) 55 IPR 354, Adler v ASIC[2003] NSWCA 131; (2003) 179 FLR 1 and Paino v Paino[2008] NSWCA 276.
20 The expertise of Dr Conrad, the particular field of his expertise, and the location of his opinion in that field, were and are not in question. The assumed facts on which his opinion was based were sufficiently identified. It is true that he did not elaborate on reasons why the MRI scan did not alter his previous opinion, and it may have been preferable if he had done so, at least to the extent of expressly saying that in his judgment the difference between what was shown in the 2003 CT scan and what was shown in the 2008 MRI scan was consistent with the natural progression of the 2003 injury; but in my opinion his omission to give that or some other explanation went only to the degree of weight to be given to the opinion, and did not have the consequence that his opinion was of no rational probative value.”
The appellant submits that Dr Bodel’s opinion should not have been accepted “as carrying any weight on the question of causation”. I reject that submission. Dr Bodel’s report set out the assumed facts on which it was based. Relevant to the causation issue, Dr Bodel garnered his assumed facts to a significant extent from the serial reports of Dr Piper, the treating orthopaedic surgeon. There is no suggestion that Dr Piper’s reports from time to time are other than accurate in their description of the respondent’s history, clinical signs, investigations and treatment. That Dr Piper’s reports represent the source of a significant part of the history is readily apparent from the context in which it is referred to in Dr Bodel’s report, and by reference to Dr Piper’s various reports.
The Arbitrator, in his reasons at [70], acknowledged the extent to which Dr Bodel relied upon Dr Piper’s reports as a source of history. Serial reports from the treating orthopaedic surgeon, who cared for the respondent from 30 April 2013 to at least 3 September 2015, are an apparently acceptable source of such assumed facts.
In Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric) at 509G-510A Samuels JA (Hutley and Priestley JJA agreeing) 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.”
The source of the assumed history on which Dr Bodel based his opinion was an appropriate and accurate one. The assumed history included that in Dr Piper’s report dated 20 July 2015, that the respondent was “troubled by right shoulder pain”, and felt “the shoulder pain has developed as she has been compensating for her left shoulder”. At the least, this represents a history that the respondent had been using her right arm to compensate for the problems in the left shoulder. It is true, as the appellant submits, that the history did not refer to specific tasks. On the basis of the above authorities, and in the context of the evidence overall, this does not render it inadmissible, and does not deprive it of any weight. It potentially would be a relevant factor to take account of in assessing the evidence overall.
It follows that the appellant’s submissions on the first limb of this ground are rejected.

The Second Limb

The appellant additionally argues that Dr Bodel “merely concluded there was a connection between the left shoulder injury and the right shoulder condition, without expressing a proper basis for that conclusion”. The appellant refers to the following passage from Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [84] (per McColl JA, Mason P and Beazley JA agreeing):
“…a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it…”
The above passage from Etherington was quoted by McColl JA in Edmonds at [130]. In Edmonds, her Honour described a stated opinion from Dr Rivett that “in general all the problems are work-related” as a bare ipse dixit, which was “not probative of the issue” (at [132]).
Dr Bodel’s opinion in the current matter included the following:
(a)     Dr Piper’s history on 20 July 2015 regarding the onset of right shoulder problems, and the history that she had been “compensating for the left shoulder”;
(b)     the MRI scan (the doctor said he saw the films) showed “clear evidence of rotator cuff pathology in the right shoulder”, some subacromial bursitis and a high grade partial thickness tear at the insertion and also an intrasubstance tear. There was “early osteoarthritic change in the glenohumeral joint and also in the AC joint”;
(c)     the respondent “developed a gradual onset of right shoulder girdle pain”;
(d)     a full examination of both shoulders;
(e)     a full description of investigations of the right shoulder, being an ultrasound, x-ray and MRI scan;
(f)      detailed discussion of the opinion of Dr Hitchen;
(g)     the doctor referred to the history of a gradual onset of right shoulder girdle pain, and said “[t]his is a consequential injury on the basis of the previous frank injury to the left shoulder”;
(h)     the doctor said the “injuries sustained in the right shoulder is [sic] an aggravation, acceleration, exacerbation and deterioration of the disease process, being the rotator cuff pathology which is evident clinically”, and
(i)      the doctor said:
“There is pre-existing pathology in both shoulders, that being the asymptomatic rotator cuff pathology in both shoulders. The effects of the injury at work in April 2013 and then the favouring of the right side while recovering from a difficult surgical procedure on the left hand side has led to aggravation, acceleration, exacerbation and deterioration of the underlying pathology in the right shoulder and that is the ‘injury’ in this circumstance.”
In HammondCare v Calka [2016] NSWWCCPD 2 Roche DP, dealing with what has been described as the “second limb of Makita”, at [46]-[48] said:
“46. What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]). An expert does not have to ‘offer chapter and verse in support of every opinion’ (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[2002] FCAFC 157; 117 FCR 189 at [89]).
47. As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich[2005] NSWCA 152 at [170] ‘[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated’. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
48. The point is further illustrated in Brambles Industries Ltd v Bell[2010] NSWCA 162; 8 DDCR 111 where Hodgson JA (Tobias and McColl JJA agreeing) held (at [20]) that a Deputy President did not err in accepting the opinion of Dr Conrad in circumstances where the doctor did not ‘elaborate on reasons why the MRI did not alter his previous opinion, and it may have been preferable if he had done so’.”
Dr Bodel’s report comfortably satisfies the requirements going to the extent to which an expert opinion requires explanation. The second limb of the submissions going to ground no 1 is rejected.

The Third Limb

The appellant submits that Dr Bodel’s opinion does not support the respondent’s case on the causal link between the conceded injury to the left shoulder, and the allegedly consequential condition of the right shoulder. Dr Bodel referred to Dr Hitchen’s opinion, and said:
“I agree with the pathological diagnosis that he gives in this regard. He therefore concludes that ‘her right shoulder symptoms are constitutional in basis’. I agree with that also, but he does not take into consideration the definition of injury in the [1987 Act] which allows for an injury to be an aggravation, acceleration, exacerbation and deterioration of a disease process, which is the case in this circumstance.”
The appellant submits that the relevant consideration was not causation of the pathology, but “whether the condition (i.e. symptoms) was the result of favouring due to the left shoulder injury”. The appellant submits that, on this issue, Dr Bodel’s opinion was that the symptoms were constitutional, and this opinion did not assist the respondent.
The Arbitrator, in his reasons at [59], quoted a passage from Kumar (see [13] above) which clearly identified the distinction between proof of a consequential condition, as opposed to an ‘injury’ under s 4 of the 1987 Act. At [58] of his reasons he correctly identified the question requiring his determination.
The dichotomy which the appellant seeks to draw between a condition (on the basis of symptoms) and ‘injury’ within the meaning of s 4 of the 1987 Act is not helpful. Whilst the occurrence of ‘injury’ by way of the aggravation, acceleration, exacerbation or deterioration of a disease may involve pathological change, it also may simply involve the worsening of symptoms (see Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at [7] per Kitto J). On the other hand, if a worker’s injured leg gives way, and he falls fracturing his arm, this is consequential to the original leg injury, but clearly involves the occurrence of additional pathology.
There is no indication that Dr Bodel, in the passage to which the appellant refers, was turning his mind to any distinction between proof of a consequential condition (as discussed in Kumar) and proof of ‘injury’ by way of the aggravation of a ‘disease’ within the meaning of s 4 of the 1987 Act. His report does not suggest he was aware that such a distinction exists, which is understandable, even on the part of an experienced medico-legal witness. Dr Bodel expressed his views on causation in his report dated 26 February 2016, answering three questions under the heading “Diagnosis”:
“(a) Your diagnosis in relation to the injuries sustained as a result of the accident as alleged, in particular the issue of the overuse of the right shoulder and whether you consider this to be work related.
The diagnosis here is rotator cuff pathology in both shoulders. I agree with Dr Hitchen that this is largely a constitutional ailment. Work is, however, a contributing factor by way of aggravation, acceleration, exacerbation and deterioration of the disease process as I have indicated above.
(b) Is there any pre-existing condition which may wholly or partially account for the current symptoms?
There is pre-existing pathology in both shoulders, that being the asymptomatic rotator cuff pathology in both shoulders. The effects of the injury at work in April 2013 and then the favouring of the right side while recovering from a difficult surgical procedure on the left hand side has led to aggravation, acceleration, exacerbation and deterioration of the underlying pathology in the right shoulder and that is the ‘injury’ in this circumstance.
(c) If so, has that pre-existing condition been accelerated, aggravated or exacerbated as a result of the accident?
There is aggravation, acceleration, and exacerbation of injury as recorded above.”
It will be observed that Dr Bodel approached the issue of whether there was ‘injury’ by way of aggravation, etcetera identically in respect of both the left and right shoulders, referring to the requirements of the definition in s 4(b)(ii) of the 1987 Act. It is not likely, in the passage of his report quoted at [123] above, that Dr Bodel was drawing a distinction between aggravation of pathology and symptomatic aggravation (and the two are not, of course, mutually exclusive).
Dr Bodel’s opinion, relevant to the right shoulder, is that pre-existent but asymptomatic rotator cuff pathology was present, and was aggravated, etcetera by favouring during the process of recovery from a difficult surgical procedure on the left shoulder. Dr Bodel did not couch his opinion in terms of the test described in authorities such as Kumar, and it does not appear that he was asked to do so. When his opinion evidence is viewed overall, it is evidence which is sufficient to satisfy the relevant test on causation of a consequential condition. The Arbitrator’s summation Dr Bodel’s opinion at [72] of his reasons, and his conclusion that “Dr Bodel supports the applicant’s case”, were plainly correct.

The third limb of the submissions going to ground no 1 is rejected.
Ground No 1 fails.

GROUND NO 3 – DR PIPER’S OPINION

This ground asserts that the Arbitrator erred in determining that Dr Piper was supportive of the respondent’s case on causation.

The Appellant’s Submissions

The reports of Dr Piper, which deal with the right shoulder, are those dated 20 July 2015 and 27 August 2015. The respondent submits that these reports do not contain an opinion from the doctor on whether “there is any connection between the right shoulder symptoms and the left shoulder injury of 9 April 2013, and it is indeed not clear from his reports that he held such an opinion”. It submits that there is no history “of what increased duties, if any, the worker was performing with her right shoulder”. The appellant also submits that the Arbitrator misread Dr Piper’s report dated 27 August 2015.
The appellant submits that “it is not entirely clear …what weight was ascribed to Dr Piper’s opinion”. It submits the inference is that the Arbitrator considered Dr Piper as “supportive of the worker’s claim”. It submits that “no weight should have been placed on the reports of Dr Piper”. It then goes on to submit that the absence of any clear opinion and explanation from Dr Piper “was a significant omission in the workers [sic] case”.

The Respondent’s Submissions

The respondent submits that “Dr Piper’s report speaks for itself”, and the history is “clear” and “consistent”.

Discussion

The reports of Dr Piper in evidence are serial reports from the doctor directed to the respondent’s general practitioner. They do not concern themselves particularly with medico-legal issues. There are 12 such reports spanning dates from 30 April 2013 to 9 April 2015, dealing with the complaints, surgery, convalescence and ongoing symptoms associated with the left shoulder injury. These confirm the limited recovery made by the respondent after the left shoulder surgery. The report dated 9 April 2015 indicates that Dr Piper, at that time, warned the respondent “that her residual symptoms may be permanent”. The doctor said he then advised the respondent “she may need to consider alternative employment for a more sedentary role”; her “role as an aged care worker requires occasional lifting of patients, and this is proving difficult for her with her ongoing shoulder pain”.
The reports dated 20 July 2015 and 27 August 2015 dealt also with the right shoulder. The earlier of these referred to “ongoing symptoms in the left shoulder including ongoing pain and stiffness”. It recorded the further history:
“Unfortunately Fardiani is now troubled by right shoulder pain. She does not recall any specific injury but feels the shoulder pain has developed as she has been compensating for her left shoulder. She reports pain since January, but the pain has been particularly bad since April. She predominantly feels the pain over the anterolateral aspect of the shoulder and rates the pain as 7/10 in severity. She is not taking any analgesia, has not seen a physiotherapist, and has not had any injections. She reports difficulty driving, and is having trouble getting back to full duties at work. She is currently working 2 hrs/day 2 days per week. She has also started to see a psychologist as she is developing depression associated with her bilateral shoulder symptoms.”
In the report dated 27 August 2015 Dr Piper referred to the results of an MRI scan of the right shoulder, which “demonstrates a large rotator cuff tear with severe subacromial bursitis and a large subacromial spur, similar to the findings on the opposite side.” It recorded:
“She is also favouring her right shoulder due to her pain, and is reporting some recurrent symptoms in the left shoulder due to the increased use of the left arm.”
Dr Piper, in the report dated 27 August 2015, recommended “an arthroscopic rotator cuff repair with biceps tenodesis and acromioplasty”. He noted the respondent “would like to proceed with surgery”.
Dr Piper wrote to the appellant’s insurer on 3 September 2015, stating that he “recommended surgery… as outlined in the attached letter to the general practitioner” (I infer the letter dated 27 August 2015).
The Arbitrator summarised the reports of Dr Piper at [20]-[25] of his reasons. The reports dated 20 July 2015 and 27 August 2015 were summarised at [24]-[25]. The summary was concise and accurate. The Arbitrator did not suggest that those two reports contained an opinion setting out the doctor’s opinion on causation of the right shoulder condition. The summary correctly recorded the history on 27 August 2015, that the respondent was “favouring her right shoulder due to her pain and had developed some recurrent symptoms in her left shoulder due to increased use”.
In his “Discussion” going to the causation issue, the Arbitrator periodically referred to matters of history taken from Dr Piper’s serial reports. He did so accurately. At [69] the Arbitrator again referred to the history in August 2015 of “recurrent symptoms in her left shoulder due to increased use”, as she was favouring her right shoulder. The Arbitrator specifically referred to the fact that Dr Piper “did not comment on causation, which is often the case with treating doctors whose focus is on treatment, he was fully aware of the history.” Dr Piper’s awareness of the history would hardly appear controversial, given his extended involvement in the respondent’s treatment over approximately two years, and the content of his serial reports.
I reject the submission at [41] of the appellant’s submissions, that the Arbitrator misread Dr Piper’s report dated 27 August 2015; he referred to it twice in terms consistent with its contents. The Arbitrator’s reasons at [67] make it clear that he correctly understood this item of history. I can see no conceivable basis for the assertion that the Arbitrator was unaware that Dr Piper, in that passage, referred to “protection of the right shoulder, and reliance on the left shoulder”. Such a history is, of course, consistent with the respondent, after the right-sided symptoms developed, making less use of her right arm, and thereby aggravating symptoms in the left. That is not inconsistent with the opposite having occurred previously, when the left shoulder was significantly symptomatic and the right shoulder was not.
The balance of the appellant’s submissions on this ground are difficult to follow. The Arbitrator specifically observed that Dr Piper’s serial reports did not contain an opinion on the relevant causation issue. Against that background, the appellant submits that it is “not entirely clear from the Arbitrator’s decision what weight was ascribed to Dr Piper’s ‘opinion’”. The appellant submits that “no weight should have been placed on the reports of Dr Piper”. Dr Piper was a treating orthopaedic surgeon whose reports traced the respondent’s complaints, investigations, treatment and history over a period of two years. They represent reliable and clearly relevant medical evidence. The submission that “no weight” should have been given to them is not viable.
Ground no 3 fails.
Dr Piper’s letter to the appellant’s insurer, dated 3 September 2015, referred to the doctor’s opinion that “employment at CHCS was a substantial contributing factor to the need for surgery” to the right shoulder. This opinion was specifically referred to, under the “Reasons for the Decision”, in the insurer’s s 74 notice dated 23 October 2015, disputing the claim for the right shoulder. This opinion from Dr Piper was not the subject of address by either party at the arbitration hearing. The Arbitrator did not refer to it in his reasons, which is understandable given that he was not taken to it. The concept of ‘substantial contributing factor’ is in s 9A of the 1987 Act, and is not technically relevant to the causation issue in the proceedings. As it was not referred to in the reasons, or submitted on by the parties, or an issue in this appeal, I have not had regard to it in consideration of the appeal. I note it in passing.

GROUND NO 4 – DR HITCHEN’S OPINION

The Appellant’s Submissions

The appellant refers to the history recorded by Dr Hitchen dealing with the respondent’s activities, before and after the left shoulder injury, at work and at home. The appellant submits that Dr Hitchen was the “only medical practitioner with a full history”, and on this basis his opinion should have been preferred to competing medical opinions. It submits that the respondent did not challenge the history taken by Dr Hitchen. It submits that Dr Hitchen addressed the correct issue, when he concluded that the right shoulder condition “is not related to the effects of injury or secondary to favouring of her left shoulder.”
The appellant refers to the Arbitrator’s reasons at [77], where he said Dr Hitchen “did not comment on whether the preferential use of the right arm to protect the injured left arm when carrying out the restricted duties or any household work would have aggravated the pathology in the applicant’s right shoulder”. The appellant submits that this statement is “incorrect”.
The appellant refers to the reasons at [79], where the Arbitrator said that Dr Hitchen did not give “detailed” reasons for his opinion. The appellant submits that this was erroneous. It submits that Dr Bodel’s report (as was “conceded” by the Arbitrator) lacked a history of right shoulder symptoms resulting from protection of the left shoulder. It submits that there was “an inconsistent approach to the evaluation of the evidence”. It is submitted that the Arbitrator erred in rejecting Dr Hitchen’s opinion.

The Respondent’s Submissions

The respondent submits the Arbitrator’s rejection of Dr Hitchen’s opinion, and acceptance of the opinions of Drs Tan, Bodel and Piper, was correct. The respondent submits that, if it is accepted that the respondent favoured the right arm, Dr Hitchen’s opinion cannot be accepted. The appellant’s submission that the respondent was “not doing much and her work involved minimal nursing duties is simply incorrect.”

Discussion

The submission that the respondent did not challenge the history recorded by Dr Hitchen should be rejected. Dr Bodel’s history of the domestic activities of the respondent and her children is not the same as that recorded by Dr Hitchen. Dr Piper’s histories from time to time suggest a greater level of activity (including at work) than is referred to in Dr Hitchen’s history. Dr Hitchen’s history of the activities performed with the right arm, after the left shoulder injury, is essentially set out in his first report in the third paragraph under “History”, and in the second paragraph under “Discussion”. These passages largely consist of the doctor setting out what, in his understanding, the respondent did not do with her right arm, rather than those things that she did do. Dr Hitchen also, under “History”, recorded that the respondent was working restricted hours, visiting a member in the community to provide verbal support with minimal nursing activities.
The penultimate paragraph of the respondent’s statement dated 30 March 2016 refers to the history taking by Dr Hitchen, saying “Dr Hitchen laid great stress on questioning me as to what additional work-place load might have aggravated my right shoulder”. The statement then refers to aspects of her history which the respondent says the doctor “totally ignored”. She said she was “forced to transfer all normal everyday manual activity, including restricted CHCS duties to my weaker right hand”. Whilst this passage is not specific about the activities involved, the reference to performing “all normal everyday manual activity” with the right arm is consistent with a greater use of the right arm than Dr Hitchen’s history would suggest. The respondent’s solicitor addressed on this history in the statement, at the arbitration hearing (T3.19-4.4). The case presented by the respondent did not simply involve acceptance of Dr Hitchen’s history dealing with use of the right arm after the injury to the left shoulder.
The appellant submits (at [49] of its submissions) that Dr Hitchen was the only doctor with a “full history and proper opinion on causation”. These submissions to some extent repeat submissions discussed in relation to ground no 2. For reasons given above, Dr Hitchen’s was not the only history relevant to the respondent’s activities with her right arm, following the left shoulder injury. The Arbitrator was under no obligation to assess the matter solely on the basis of Dr Hitchen’s history, which basically was a series of negatives. I have concluded, in dealing with ground no 2 above, that the Arbitrator’s assessment of the lay evidence, and his factual findings on this topic, were reasonably open to him.
The Arbitrator’s factual findings were consistent with the respondent, following her left shoulder injury, performing restricted duties which were similar to those she performed previously, but within the restrictions in the medical certificates from time to time; the duties involved occasional lifting of patients, which proved difficult (reasons at [62]). The respondent transferred all normal everyday activity, including restricted work duties, to her non-dominant right arm (reasons at [64]). The respondent used her right arm more when she performed her daily domestic and work activities, which included some lifting as at April 2015 (reasons at [65]). Following the respondent’s left shoulder surgery (on 14 August 2013) she continued to be troubled by left shoulder symptoms, which restricted her ability to undertake domestic and work activities. She developed right shoulder pain in January 2015, and her symptoms gradually became worse (reasons at [68]). She told Dr Piper that she developed symptoms in her right shoulder as a result of protecting the injured left shoulder. In August 2015 the respondent developed recurrent symptoms in the left shoulder due to increased use (reasons at [69]). The respondent’s children gave some assistance to her with domestic duties, but the respondent still had to do some of the housework (reasons at [71]). Self-care such as combing hair would have posed some difficulties for the respondent (reasons at [75]).
The history accepted by the Arbitrator, based largely on evidence other than Dr Hitchen, was considerably more expansive than the history recorded by Dr Hitchen.
Dr Hitchen’s view on causation appeared in the Discussion passage of his first report. He said:
“With regard to Ms Rhyder, her right shoulder symptoms are constitutional in basis. It is extremely likely that she would have developed symptoms at or around the same time in her life. The argument of so called favouring usually raised its head in the Workers Compensation system as a mechanism to leverage treatment in a site different to the original injury. I note she has been on protected duties and has not used her right arm repetitively at or above heart level, Further, she has had domestic assistance at home regularly from her daughter and she is not engaged in any heavy labouring activities.
When coupled with the strong risk factor of a large acromial spur this would lead me to conclude that her right shoulder condition is not related to the effects of injury or secondary to favouring of her left shoulder.”
Later in the same section of his report Dr Hitchen said:
“There is no workplace aggravation of her right shoulder condition. She has been on restricted duties. She is not an overhead labourer. There has been no fall onto the right shoulder.”
In a supplementary report dated 22 July 2016, Dr Hitchen responded to a question asking whether he agreed with Dr Bodel that the respondent’s symptoms had been contributed to by overuse, simply saying “No”.
Dr Hitchen’s history, by reference to the case the respondent ran, was not “full”. The Arbitrator at [77]-[78] of his reasons said:
“77 Dr Hitchen based his opinion on the premise that the applicant had not used her right arm repetitively at or above heart level and because she had regular domestic assistance from her daughter. He did not comment on whether preferential use of the right arm to protect the injured left arm when carrying out the restricted duties or any household work would have aggravated the pathology in the applicant’s right shoulder.
78 Dr Hitchen merely stated that there was no aggravation and in coming to that conclusion, he disregarded the applicant’s history of symptoms arising when using her right arm to protect her left shoulder. The fact that the applicant was on restricted duties does not mean that she did not do activities that caused a worsening of her symptoms.”
The appellant submits that, when Dr Hitchen’s report is read as a whole, what the Arbitrator said at [77] was “incorrect”. I reject that submission. Dr Hitchen referred to aspects of the underlying pathology. It is common ground that there was underlying pathology. The question was whether changed usage patterns of the right arm, due to the left shoulder injury, caused aggravation, such that the condition of the right shoulder could be said to result from the left shoulder injury.
It is unclear what documentation Dr Hitchen was given for the purposes of assessment. Clearly he had a copy of Dr Piper’s report dated 30 April 2013 (on which he commented). He had copies of radiological investigations of the right shoulder which are referred to in the report. He had a copy of a report from Dr Edwards, a general surgeon, who apparently advised the insurer in July 2013. It is not apparent whether Dr Hitchen had a full series of the reports of Dr Piper, or the certificates of Dr Tan. He was obviously given a copy of Dr Bodel’s report dated 26 February 2016, before providing his supplementary report. The respondent’s statement dated 30 March 2016 post-dates Dr Hitchen’s primary report, and does not appear to have been given to the doctor when he was furnishing his supplementary report.
Most of the matters of history, which comprised the Arbitrator’s factual findings, were not part of Dr Hitchen’s assumed history, and were not commented on by Dr Hitchen. It was not the respondent’s case that she had engaged in heavy labouring duties, was an overhead labourer, had fallen onto her right shoulder, or had had no domestic assistance at home. What Dr Hitchen did not comment on was the history as found by the Arbitrator, by reference to multiple items of medical history and the respondent’s statement dated 30 March 2016. The Arbitrator’s statement at [77] of his reasons was accurate on this point.
The lack of correlation between the history on which Dr Hitchen commented, and the history as found by the Arbitrator, deprives Dr Hitchen’s views of weight (see the cases referred to at [101]-[115] above, in particular Paric). The Arbitrator’s reasons at [78] were accurate. Dr Hitchen’s reasoning disregarded much of the history as found by the Arbitrator, gleaned from other medical evidence and the respondent’s statement dated 30 March 2016. The reasons given by the Arbitrator for rejecting the opinion of Dr Hitchen, and preferring the other medical evidence in the case, were reasonably available on the evidence and disclose no error.
Ground no 4 fails.

GROUND NO 5 – THE OPINION OF DR TAN

The Appellant’s Submissions

This ground asserts that the Arbitrator erred in concluding that Dr Tan was supportive of the respondent’s case on causation.
The appellant submits correctly that Dr Tan’s views are evidenced only by a series of WorkCover certificates of capacity. The appellant observes that the first of these to mention the right shoulder is that dated 3 June 2015. The appellant quotes, in full, the passage from that certificate under “Comments” (the same comments also appear in the following certificate dated 24 June 2015):
“5 [min ?] break every hr and rest if needed, cease if pain develops, no above shoulder level work. Past 2 months, right shoulder pain. Sonogram shows full thickness tear of supraspinatus tendon with tendinosis, subscularis tendinosis and subacromial bursitis. The right shoulder finding could well be a result of her using her right upper limb preferentially to compensate for her left shoulder chronic pain.”

The appellant quotes the Arbitrator’s reasons at [66]:
“Although I do not have the benefit of a report or the clinical notes of Dr Tan, in his certificate dated 3 June 2015, Dr Tan recorded that the applicant had experienced right shoulder pain for the past two months and indicated that this could be the result of her using her right upper limb to compensate for her left shoulder pain. Therefore, he is supportive of a consequential condition.”
The appellant submits that the above comments from the certificate refer to the “right shoulder findings” (emphasis in the appellant’s submissions). The submission continues:
“In other words, the doctor was suggesting that the pathology shown on imaging could be the result of overuse. Contrary to the Arbitrator’s recitation, Dr Tan was not simply stating that the pain (i.e. symptoms) in the shoulder was the result of overuse.”
The appellant submits that Dr Bodel and Dr Hitchen agreed the respondent suffered from a constitutional rotator cuff condition in the right shoulder. This agreement was noted by the Arbitrator in his reasons at [57]. The Arbitrator accepted that the right shoulder pathology was constitutional. The Arbitrator’s acceptance that Dr Tan was “supportive of a consequential condition” (reasons at [66]) is submitted to be erroneous, as Dr Tan’s opinion on the issue is contrary to the agreed opinion of Dr Hitchen and Dr Bodel, that the pathology was constitutional.
The appellant additionally submits that Dr Tan’s opinion on the issue was not definitive (“could well be a result…”), and was “no more than a bare statement”. Dr Tan’s opinion “should have been afforded little if any weight”.

The Respondent’s Submissions

The respondent submits that “Dr Tan’s certificates speak for themselves”, and “Dr Tan is supportive of a consequential condition”.

Discussion

The appellant’s argument on this point is a very specific one. It submits that the context in which Dr Tan used the word “findings”, in the certificates dated 3 and 24 June 2015, constituted a reference to right shoulder pathology, rather than symptoms. This, the appellant submits, is inconsistent with the views of Dr Bodel and Dr Hitchen, the two orthopaedic surgeons who furnished medico-legal reports in the matter, and with the Arbitrator’s general acceptance of the existence of pre-existing pathology in the right shoulder. The appellant submits, against this background, that the Arbitrator erred in concluding that Dr Tan’s opinion was supportive of the respondent’s case. Dr Tan’s opinion “should have been afforded little if any weight”.
This is not a submission that was made at the arbitration hearing. Dr Tan’s certificates were raised in Mr Garling’s submissions in reply. He referred to the working hours for which the respondent was certified fit, from time to time (T19.5-20.15). Ms Wood then made submissions in response to this (T22.30-24.22). Those submissions dealt with the respondent’s working hours from time to time based on the certificates, including the hours around the time right shoulder complaints were first mentioned. Those submissions did not touch on the discrete argument the appellant now seeks to raise, going to the interpretation of Dr Tan’s opinion appearing in “Comments” in the relevant certificates. It is not an argument dealt with by the Arbitrator, it not having been raised before him.
In Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally) the High Court at [7] said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
A recent example of the application of that authority is to be found in Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93. Consistent with Metwally, the appellant should not be permitted to raise this argument, it not having been raised at the arbitration hearing.
The appellant’s submissions on this ground also, at [72]-[74], in passing raise two other points. The first of these is that Dr Tan’s opinion in his “Comments”, in the two relevant certificates, suggested the findings “‘could well be’ the result of overuse without providing any definitive opinion”. The second was that the opinion was “a bare statement” which failed to identify “what additional or overuse duties the worker was performing with her right arm and what duties precipitated right shoulder symptoms”. These arguments going to Dr Tan’s opinion, similarly, were not raised before the Arbitrator, and the appellant should not be permitted to raise them now.
If I am wrong in the view I have reached in this regard, ground no 5 would fail in any event. Dr Tan’s opinion in his “Comments” did not specifically identify what the doctor was referring to, when he used the term “findings”. The doctor’s brief opinion appears at the end of the “Comments”, and follows a description of the results of an ultrasound of the right shoulder (I infer that dated 1 June 2015). The briefly stated opinion may be a reference to the ultrasound findings, although this is by no means clear, it may be a reference to physical findings by the doctor. In such a brief expression of opinion, as a comment in a medical certificate, one could not conclude that the doctor was seeking to draw a distinction between underlying pathology, and symptoms potentially associated with such pathology. The appellant’s argument on this point would not succeed.
The probative value of medical certificates will depend on the circumstances of the case, and the contents of the certificates. There will be occasions where they have little probative force, and other circumstances where their contents (for example confirming complaints or a history) may be crucial (see Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195 at [44]-[45], DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 at [93]). Typically, the opinion encapsulated in a certificate will be brief.
The first mention in Dr Piper’s serial reports of right shoulder symptoms was on
20 July 2015, based on a consultation that day. Dr Tan’s certificates dated 3 and 24 June 2015 predate that. It is likely that the history recorded by Dr Tan in June 2015 was based on a history obtained by Dr Tan. There is no suggested competing possibility. The “Comments”, at that time, are consistent with Dr Tan being provided with a history of the respondent using the right upper limb to compensate for left shoulder pain. The “Comments” are consistent with Dr Tan holding an opinion that there “could well be” a causal relationship between that usage pattern, and the condition in the right shoulder. This is reinforced by Dr Tan’s insertion, next to the statement “Injury/disease is consistent with patient’s description of cause”, of the word “Yes”. This is further reinforced by the respondent’s statement about Dr Tan’s opinion referred to at [86]-[87] above.
Dr Tan’s certificates dealing with the right shoulder do not set out the doctor’s reasoning dealing with the causation issue. The weight to be attached to the opinion is affected as a consequence. The certificates are sufficient to support the Arbitrator’s assessment of them, that Dr Tan “is supportive of the consequential condition” (reasons at [66]).
Ground No 5 fails.

DECISION

The respondent’s application for leave to rely on fresh evidence pursuant to s 352(6) of the 1998 Act is refused.
The Arbitrator’s determination dated 26 August 2016 is confirmed.

Michael Snell
Deputy President

8 December 2016