Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) - [2011] NSWWCCPD 74

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) [2011] NSWWCCPD 74
APPELLANT:		Chhong Heng Taing t/as The Arcade Pharmacy
RESPONDENT:		Mary Rose Gauci
INSURER:		Guild Insurance Limited
FILE NUMBER:		A2-7914/08
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:		9 April 2010
DATE OF APPEAL HEARING:		14 December 2011
DATE OF APPEAL DECISION:		22 December 2011
SUBJECT MATTER OF DECISION:		Personal injury; s 4(a) of the Workers Compensation Act 1987; whether worker suffered an aggravation of a disease in subsequent employment; application of principles in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; refusal to grant adjournment; effect of misdescription of employer’s name on a validly issued Medical Assessment Certificate; amendment of employer’s name; Pt 18 r 4(4) of the Workers Compensation Commission Rules 2011; application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr P Stockley, instructed by Leigh Virtue & Associates
Respondent:	Mr L Morgan, instructed by Lamrocks
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 9 April 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

BACKGROUND

This matter has a long and most unsatisfactory history. The respondent worker, Mary Gauci, worked for the appellant employer, Chhong Heng Taing (Mr Taing), as a pharmacy assistant. She alleges that she injured her right shoulder on 4 November 2004 while throwing boxes of stock from the ground floor of the appellant’s pharmacy to a co-worker standing on a landing of a staircase. She later developed symptoms in her left shoulder, which she alleges are causally related to the right shoulder injury.
Ms Gauci reported the accident to Mr Taing and finished work at 6.30 pm. She sought treatment in January 2005 and was certified fit for selected duties, which the appellant provided. She made a claim for compensation following her first medical consultation. Her general practitioner, Dr Singh, arranged for x-rays and referred her for chiropractic treatment. The appellant’s insurer, Guild Insurance Limited (Guild Insurance), accepted the claim and paid Ms Gauci’s medical expenses. Dr Singh noted on 27 January 2005 that the insurer’s claim number was 110910.
The appellant sold the pharmacy at the end of March 2005 to a Ms Ta. As a result, Ms Gauci ceased to be employed by the appellant and started work for the new owner. Her hours with the pharmacy were reduced and she obtained part-time work as a receptionist for a doctor at Wentworthville.
On 30 January 2007, Ms Gauci underwent surgery on her right shoulder at the hands of Dr Hoe and was unfit for work from that date until 26 March 2007. Guild Insurance paid weekly compensation during this period. After the surgery, Ms Gauci continued to have pain in her right shoulder and, because of the pain, she favoured her right arm. In early 2007, she noticed the gradual onset of pain in her left shoulder.
On 18 August 2008, Ms Gauci’s solicitors, Lamrocks, claimed lump sum compensation on her behalf in respect of an alleged seven per cent whole person impairment said to have resulted from the condition of her shoulders as a result of her injury on 4 November 2004. The letter of claim identified the worker’s employer as Arcade Pharmacy Pty Ltd and noted the claim number to be 110910. The letter raised a query about the status of the worker’s employer. It said:
“We are not sure whether our client’s employer is still trading. Would you kindly advise whether you are prepared to accept service of this documentation on behalf of your insured. If you are not prepared to accept service, would you please advise.”
Guild Insurance’s case manager, Ms Tsukamoto, arranged for Dr Faithfull, orthopaedic surgeon, to examine Ms Gauci.
In a letter dated 19 September 2008, Guild Insurance advised that Dr Faithfull had assessed Ms Gauci to have a two per cent whole person impairment “based on the injury of 4 November 2004” and made an offer to settle the lump sum claim in the sum of $2,500 (which represented a two per cent whole person impairment).
On 2 October 2008, Ms Gauci’s solicitors filed an Application to Resolve a Dispute (the Application) in the Commission in which they named Arcade Pharmacy Pty Ltd as the worker’s employer. The Application claimed lump sum compensation in the sum of $8,750 in respect of a seven per cent whole person impairment as a result of the condition of her shoulders.
Part 1 of the Application states that the dispute was “for referral for medical assessment by an approved medical specialist”. The injury description in Part 4 of the Application states:
“Chronic right bursitis, rotator cuff tendonitis with partial thickness tears of the right rotator cuff tendons, left shoulder pain and restriction of movement with left shoulder bursitis and rotator cuff tendonitis and neck stiffness and pain due to chronic musculoligamentous cervical strain injury.”
Under “[d]escribe how the injury occurred”, the following appears:
“On 4 November 2004, the Applicant in the course of her employment had to lift and carry approximately 100 boxes of stock and in the course of moving that stock the Applicant threw a box to another worker and sustained injury.”
On 21 October 2008, the appellant’s solicitor, Mr Macken, filed a Reply that stated the Application named an incorrect respondent and insurer, and leave was sought to determine the issues in accordance with an attached schedule. The Reply also purported to rely on dispute notices attached to the Application. No such notices that complied with the legislation were attached. The schedule attached to the Reply was headed “Schedule of Issues in Dispute”. It purported to list the issues in dispute as follows:
“1.     Employment
2.     Insurance
3.     Notice of injury
4.     Duly made claim for compensation
5.     Injury
6.     Causation
7.     Substantial contributing factor
8.     Impairment
9.     Section 323 deduction
10.    Disease provisions (deemed date of last Employer etc).”
The above schedule did not comply with the insurer’s obligations to give notice of the dispute to the claimant under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It is most unsatisfactory that a solicitor would file such a document.
The Reply identified the employer’s “business/organisation” as “Arcade Pharmacy” and its address as 27 Dunmore Street, Wentworthville NSW 2145. That was consistent with the worker’s evidence of her place of employment as at 4 November 2004. The Reply recorded the insurer as “Guild Insurance Limited”. It also noted the claim number to be 110910, the same number recorded by Dr Singh on 27 January 2005, by Lamrocks in their letter of claim dated 18 August 2008, and by Guild Insurance in its letter of 19 September 2008.
On 22 October 2008, one of the Commission’s Dispute Management Officers referred the medical dispute to an Approved Medical Specialist (AMS) for assessment of whole person impairment as a result of the condition of the left and right upper extremities. The AMS (Dr Harvey-Sutton) examined Ms Gauci on 21 November 2008. After that examination, Dr Harvey-Sutton requested production of Dr Hoe’s operation report.
The worker’s solicitor forwarded that report, and three other reports from Dr Hoe, to the Commission on 28 November 2008. On 10 December 2008, Mr Macken wrote to the Commission stating that he “required the opportunity of being heard in respect of any additional documents to be admitted in this matter, particularly having regard to the issues which remain in dispute”.
Also on 10 December 2008, Dr Harvey-Sutton issued a Medical Assessment Certificate (MAC) in which she assessed Ms Gauci to have a nine per cent whole person impairment as a result of her injury.
On 19 December 2008, Mr Macken wrote to the Commission stating that there were a “large number of outstanding issues in dispute” and suggested “that arrangements should be made for this matter to be listed for a Telephone Conference.” The Commission’s Manager of Dispute Services declined to set the matter down for a conference.
Arcade Pharmacy Pty Ltd appealed Dr Harvey-Sutton’s assessment to a Medical Appeal Panel under s 327 of the 1998 Act. In a decision delivered on 20 March 2009, the Medical Appeal Panel confirmed Dr Harvey-Sutton’s assessment. Mr Macken acted for Arcade Pharmacy Pty Ltd in that appeal and, in his submissions in support of the appeal, made no mention that the employer had been incorrectly named. The appeal recorded the claim number as 110910.
On 22 April 2009, the Commission issued a Certificate of Determination ordering Arcade Pharmacy Pty Ltd to pay the worker $11,250 in respect of a nine per cent permanent impairment resulting from the injury on 4 November 2004.
Arcade Pharmacy Pty Ltd, again with Mr Macken acting for it, appealed that determination under s 352 of the 1998 Act. In a decision delivered by Deputy President O’Grady on 27 August 2009, the determination of 22 April 2009 was revoked and the matter remitted to another Arbitrator for determination of any application by the appellant to rely on previously unnotified matters under s 289A(4) of the 1998 Act (Arcade Pharmacy Pty Ltd v Gauci [2009] NSWWCCPD 107).
The Deputy President noted that the Commission had referred the matter to an AMS on the assumption there was no dispute as to liability. However, the existence of a dispute had been raised in the Reply and the interests of justice required that the Commission deal with any application made on behalf of the appellant for leave to dispute those matters. His decision made no mention of the employer having been wrongly named.
The Deputy President added that, on the face of the material before him, the insurer had failed to meet its obligations under s 74 of the 1998 Act. The “Schedule” attached to the Reply “could not be said to represent even a belated attempt to comply with the notice requirements of the legislation” ([49]). Notwithstanding the conduct of the defence, the Deputy President was of the opinion that a dispute existed as to liability. Because of the way Arcade Pharmacy Pty Ltd had conducted its defence (through its solicitor, Mr Macken), the Deputy President ordered it to pay Ms Gauci’s costs of the appeal.
The matter came before Arbitrator Duncombe at a teleconference on 29 September 2009. Mr Macken stated that Arcade Pharmacy Pty Ltd was not the correct legal entity of the employer and that “both worker and insurer were in issue”. The Arbitrator made several directions for production, as sought by Mr Macken, and listed the matter for a teleconference on 11 November 2009. At that teleconference, the Arbitrator made a number of directions, but did not resolve the correct description of the employer nor did she clarify the issues in dispute.
Arbitrator Duncombe listed the matter for conciliation and arbitration on 9 December 2009. The matter did not proceed on that day. The Arbitrator wrote to the Registrar by email on 10 December 2009. She said, “[d]espite indications at the teleconference that the [appellant] would accept liability for the claim (the Applicant having sued the incorrect entity), Mr Saul appeared for the [appellant] and stated that he had instructions to dispute the claim on the basis that there was no such entity as the [appellant] named in the Application, that there was an issue of insurance and the matter could not proceed”.
On 10 December 2009, Lamrocks lodged an amended Application to Resolve a Dispute naming Chhong Heng Taing t/as The Arcade Pharmacy as the first respondent and The Taing Family Trust as the second respondent.
On 14 December 2009, Arbitrator Duncombe issued the following Direction:
“1.     The Application is amended to delete the name of the Respondent as ‘Arcade Pharmacy Pty Ltd’ and claim against the following Respondents:
a.First Respondent: Mr Chhong Heng Taing t/as the Arcade Pharmacy
b.Second Respondent: The Taing Family Trust
2.       The Applicant is to file and serve an Amended Application to Resolve a Dispute on or before 17 December 2009.
3.       The Respondents are to notify the insurer and the insurer is to respond to the claim on or before 24 December 2009.

4. If the insurer of the Respondent(s) is Guild Insurance Limited, (‘Guild’), Guild will issue a section 74 Notice on or before 8 January 2010, such section 74 notice confined to the issues numbers 5, 6, 7 and 10 as listed in the current Reply. Guild will file a Reply on or before 15 January 2010.

5. The matter is set down for conciliation/arbitration at the WCC on 22 January 2010 at pm [sic].

Noted:

1. The parties agree that provided each of the above directions are issued, neither party will agitate any procedural points and both parties agree that the issues 5, 6, 7 and 10 can be properly determined at the next available arbitration date.”

On 17 December 2009, Lamrocks lodged a further amended Application to Resolve a Dispute (the Application) naming Chhong Heng Taing t/as The Arcade Pharmacy as the first respondent and Chhong Heng Taing as Trustee of The Taing Family Trust as the second respondent.
On 13 January 2010, Mr Macken filed a Reply on behalf of Chhong Heng Taing t/as The Arcade Pharmacy. The Reply identified the same insurer, Guild Insurance Limited, and the same claim number (110910), as appears in all previous documents filed with the Commission in this matter. Attached to the Reply is a letter from Mr Macken dated 24 December 2009 that purports to be in accordance with s 74 of the 1998 Act. Though the letter is headed “Arcade Pharmacy Pty Ltd re Mary Rose Gauci”, it took no issue with employment.
The Commission listed the matter before Arbitrator Tanner for conciliation and arbitration on 5 February 2010. Preliminary and procedural matters could not be resolved and Mr Tanner listed the matter for hearing on 19 February 2010. Counsel for the appellant confirmed that Ms Gauci’s employer at the time of her alleged injury was Chhong Heng Taing t/as The Arcade Pharmacy.
Arbitrator Tanner identified the issues in dispute to be:
“(a) Did the Applicant sustain injury, within the meaning of s 4 of the 1987 Act, to her right shoulder, in the course of her employment with the Respondent on 4 November 2004?
(b) Was the Applicant’s employment with the Respondent a substantial contributing factor, within the meaning of s 9A of the 1987 Act, to any injury that she may be found to have sustained to her right shoulder on 4 November 2004?

(c) If the Applicant is found to have sustained a compensable injury to her right shoulder, is pathology affecting her left shoulder causally related to the compensable injury to her right shoulder?

(d) Is the condition of the Applicant’s shoulders in the nature of a disease, and is a subsequent employer liable to compensate the Applicant in respect thereof, as provided by ss 15 and 16 of the 1987 Act?”

A further issue was whether, should Ms Gauci succeed on issues (a), (b) and (c) above, she was entitled to an order under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the assessment of nine per cent whole person impairment made by Dr Harvey-Sutton on 10 December 2008. The appellant submitted that Dr Harvey-Sutton’s assessment was made in respect of a dispute between Ms Gauci and a party (The Arcade Pharmacy Pty Ltd) that was not a legal entity and not her employer, and there should be another assessment by a different AMS. At the conclusion of the submissions at the arbitration, counsel for the appellant sought an adjournment to call Dr Faithfull. The Arbitrator refused that application.
In a reserved decision delivered on 9 April 2010, Arbitrator Tanner found in favour of Ms Gauci on all issues. The Commission issued a Certificate of Determination on 9 April 2010 in the following terms:
“For the reasons set out in the attached Statement of Reasons, the decision in this matter is:
1.The Respondent is ordered, pursuant to s 66 of the Workers Compensation Act 1987, to pay $11,250.00 to the Applicant in respect of 9 % whole person impairment that results from injury to the Applicant’s right shoulder on 4 November 2004, including causally-related pathology in her left shoulder, as assessed by Dr Philippa Harvey-Sutton AMS.
2.The Respondent is ordered to pay the Applicant’s costs as agreed or assessed.
Certification as to Costs:
I certify that the matter is complex and that the fees of the Applicant’s legal representatives shall be subject to an increase of 30 %.”
The appellant appealed the above decision. In a decision delivered on 24 August 2010, Deputy President O’Grady confirmed the Arbitrator’s decision of 9 April 2010 (Chhong Heng Taing t/as The Arcade Pharmacy v Gauci [2010] NSWWCCPD 90).
The appellant appealed Deputy President O’Grady’s decision to the Court of Appeal. On 5 August 2011, the Court of Appeal issued a consent order allowing the appeal, setting aside the Deputy President’s decision and remitting the matter to the Commission “for further hearing before a Presidential Member”.
In a Direction issued on 29 September 2011, the President directed the parties to “provide detailed written submissions as to the future conduct of the matter”. Mr Macken submitted that the matter should be referred to the President for further hearing, or, in the alternative, remitted to a different Arbitrator for re-determination. The worker’s solicitor submitted that the appellant “should be afforded the opportunity of an oral hearing before a Presidential Member to avoid any suggestion of a lack of procedural fairness”. He added that there was no reason for the matter to be remitted to a different Arbitrator for re-determination.
The President held a teleconference on 8 November 2011 when Mr Saul, of counsel, represented the appellant, and Mr Groves, solicitor, represented the respondent worker. The parties agreed to attempt to resolve the matter. If those attempts were unsuccessful, the President would allocate the matter to a Presidential member for determination.
On 17 November 2011, the President allocated the appeal to me.

PRELIMINARY MATTERS

Nature of the appeal

The appeal before Deputy President O’Grady was a review under the then applicable terms of s 352 of the 1998 Act, which have since been amended by the Workers Compensation Legislation Amendment Act 2010. With one exception (not relevant to this appeal), the amendments only apply to Arbitrators’ decisions made after 1 February 2010, the date on which the amendments commenced. Therefore, the appeal before me is a review. In conducting that review, I intend to apply the principles and authorities discussed in New South Wales Police Force v Winter [2011] NSWCA 330 (Winter).

Leave to appeal

It is not disputed that the monetary thresholds in s 352 are satisfied. The appeal was filed in time.
I grant leave to appeal.

THE EVIDENCE

Ms Gauci’s evidence was provided in a statement dated 26 August 2007. As at 4 November 2004, Ms Gauci had worked for the appellant for about 10 years, the last two years full-time. Prior to 4 November 2004, she had no problems with her health and had not made a compensation claim.
In her first statement, Ms Gauci gave the following account of the events on 4 November 2004:
“3.     On 4 November, 2004 at about 3.00 pm there was a delivery of large boxes of disposal [sic] nappies. The store room was upstairs and the method that we used to transfer the boxes was that I would pick up the box downstairs and throw it to someone on the landing of the stairs and then they would take it up to the next landing and then we stack it in the store room.
4.     Each of the boxes weighed about 4 kilos and I had been lifting and throwing the boxes for about an hour before my accident occurred.
5.     I lifted one particular box from the ground, turned and went to throw it up the stairs and I felt something go in my right shoulder. It felt as if something had clicked and broken in my right shoulder.
6.     I had immediate severe pain right inside my shoulder.
7.     I kept going thinking that I had just pulled a muscle and that it would come good.
8.     I reported the accident to the owner of the business, Mr Chhong Taing.
9.     I finished work at about 6.30 pm and my right shoulder was very painful. I just kept working and my right shoulder was very sore. I didn’t nominate it as a compensation claim at that stage.”

Ms Gauci worked until Christmas and took holidays in early January 2005, but her shoulder was not getting any better. She saw Dr Singh on 20 January 2005. He gave her a WorkCover medical certificate dated 20 January 2005 certifying her fit for suitable duties, with no lifting over 5 kg, no overhead work and stipulating that a family member was to drive her to and from work. She handed the certificate to her employer and was given a compensation claim form, which she completed on or about 25 January 2005. (As no medical certificates are in evidence, the evidence of the content of the certificates has come from Ms Gauci’s statements.)
After Ms Gauci submitted her initial WorkCover certificate to her employer and lodged her claim form, her employer gave her duties in accordance with her WorkCover certificate. She continued working normal hours, but was not allowed to lift or carry. Dr Singh referred Ms Gauci for an x-ray to her right shoulder and arranged for her to see a chiropractor, Mr Anthony O’Reilly. She saw Mr O’Reilly on several occasions. As far as she is aware, all of her treatment expenses were met by Guild Insurance.
Ms Gauci was aware that the pharmacy was “changing hands”. She said that she was “terrified” about taking time off work in February or March 2005 because she was worried that the incoming employer would not keep her on restricted duties and her shoulder was “extremely sore”. On 31 March 2005, Mr Taing sold the pharmacy to Ms Theresa Ta. Ms Gauci continued to work at the pharmacy, but from the time Ms Ta took over she started giving the worker “trouble about work and [the worker’s] hours”. Ms Gauci handed in further medical certificates from Dr Singh dated 28 February 2005 and 27 April 2005.
In March and April 2005, Ms Gauci’s shoulder was giving her “a lot of pain”.
After 31 March 2005, Ms Gauci was reduced to working two days per week on a casual basis, but Ms Ta complied with Dr Singh’s certificate and did not require her to do any lifting or carrying. Ms Gauci was irritated by the reduction in her hours and had many arguments with Ms Ta about her employment.
Shortly after 31 March 2005, Ms Gauci organised to do two days per week as a casual receptionist for Dr Norman Soo at Wentworthville. She continued working two days per week for the pharmacy and two days per week for Dr Soo until about October 2005, when Dr Soo reduced her hours because he was not busy.
Those arrangements continued until 30 January 2007, when Ms Gauci stopped work to have surgery on her right shoulder at the hands of Dr Hoe. She remained off work after the surgery until 26 March 2007. In that period, she was paid weekly compensation by Guild Insurance as a full-time employee. Dr Singh provided a certificate dated 21 March 2007, in which he certified the worker fit to resume restricted duties for four hour per day five days per week on 26 March 2007.
Dr Hoe referred the worker to Mr Michael Lee, physiotherapist, for treatment on both shoulders. Ms Gacui said that Guild Insurance paid for that treatment.
Ms Gauci provided Dr Singh’s certificate to Ms Ta, but was only offered suitable duties for four hours per day three days per week. Dr Singh later certified the worker fit to work three hours per day three days per week because her shoulder was giving her so much trouble.
At the time of her first statement (26 August 2007), Ms Gauci was working three days per week three hours per day, but was not being paid any make-up pay by Guild Insurance.
Ms Gauci said that, since the operation by Dr Hoe, her right shoulder had not really felt much better. She was also getting problems with her left shoulder because she used her left arm to do everything. As at August 2007, Ms Gauci had constant pain and discomfort in her right shoulder with a restricted range of movement. She is naturally right-handed and had difficulty lifting and carrying, or doing anything above shoulder height with her right hand. Since she hurt her right shoulder, she has done virtually everything with her left arm.

Medical evidence

Ms Gauci saw Dr Singh on 20 January 2005. The doctor’s notes confirm her attendance on that day and that she complained of pain in her right shoulder for the previous two months. On examination, there was a restricted range of movement of the right shoulder and cervical spine. The parties agreed that his next entry was on 27 January 2005. The entry on that day reads “pt now wants to put her visit of 20/1/05 to a workers compensation injury – date of injury 4/11/04 – pt says her (R) shoulder pain has progressively worsened”.
Anthony O’Reilly, chiropractor, reported to Dr Singh on 24 May 2005 that Ms Gauci’s symptoms had progressively improved over the previous few weeks to the point where there was an approximate 70 per cent reduction in pain. The results obtained suggested that, given time and an exercise program to improve muscular and joint function, a complete symptomatic resolution could be achieved.
Ms Gauci saw Mr O’Reilly on 9 June 2005 having had a fall onto her right shoulder. Other than the reference to a fall, the notes are difficult to decipher.
Dr Hoe, orthopaedic surgeon, examined the worker and her MRI scans on 13 October 2006. He said that the MRI scans showed tendinosis and a possible small tear of the supraspinatus tendon. As Ms Gauci had improved with relative rest, he advised the continuation of conservative management.
Dr Hoe reviewed the worker again on 24 November 2006, when he recorded that her pain at rest was worse. Her shoulder ached if she had been restocking shelves, and with any repetitive activity. He concluded that she had ongoing right shoulder pain due to subacromial impingement and he recommended a right shoulder arthroscopic acromioplasty.
Dr Hoe reported to Dr Singh on 10 January 2007. He said that the worker’s right shoulder had been “reasonable due to rest over the holidays”. However, on some days, it was still painful and she feared that, when she returned to normal duties, it would become painful again. On examination, there was pain on testing the supraspinatus against resistance and there was also catching pain when lowering the arm from an overhead position. The surgery consisted of a right shoulder arthroscopy and arthroscopic acromioplasty.
Dr Hoe reported on 21 March 2007 that Ms Gauci had “gone backwards in some ways”. She had right-sided cervical pain which caused headaches. It appeared that some of the exercises she was performing were aggravating her pain. Despite this, she appeared to have improved her movements. He thought she was fit to return to restricted duties, avoiding heavy lifting and any overhead activities.
Ms Gauci saw Dr Singh again on 2 April 2007, complaining that she was unable to cope with work for four hours per day, five days a week. The notes record that, after 3–3.5 hours, she began to get fairly severe right shoulder pain. The pain came on with her usual work, serving customers, carrying work and light stock work. On examination, the worker was tender over the right shoulder, and active movements of the shoulder caused pain. The doctor issued a new WorkCover medical certificate recommending that she work three hours a day, three days a week.
Dr Duckworth, consultant orthopaedic surgeon, examined and reported on Ms Gauci on 23 May 2007. He took a history that she heard a snap in her shoulder when lifting and carrying boxes of nappies on 4 November 2004. He recorded that, despite surgery, she still had ongoing problems affecting her right arm. She lacked internal rotation and elevation, and described pain when lifting, and pain with daily activities. On examination, she could elevate her shoulder to 160 degrees, externally rotate to 70 degrees and internally rotate to L3. Her rotator cuff was intact and her shoulder felt smooth. She had mild pain at the extremes of motion, a slightly decreased range of motion of her neck and some cervicobrachial discomfort.
Dr Duckworth did not think any further surgery would fix her problem. Unfortunately, she had a “chronic pain picture affecting both the neck and her shoulder”. He recommended a referral to Dr Dalton, a neck and shoulder rehabilitation specialist.
Ms Gauci again saw Dr Singh on 9 June 2007. The doctor’s notes record that an injection of local anaesthetic into the right shoulder did not help her pain. A new WorkCover plan was given. The worker was to continue the same duties for three hours per day three days per week. Ms Gauci was frustrated and “getting depressed” about her right shoulder pain.
Another entry in Dr Singh’s notes for August 2007 records that Ms Gauci was working 20–22 hours per week at Dr Lai’s surgery. The notes refer to filing cabinets and to “heavy files in them”. Ms Gauci liked the job and wanted to continue with it; her boss was good.
Dr Hoe reported on 27 June 2007 that Ms Gauci continued to have “generalised upper limb and neck pain”, and that she was starting to experience left shoulder pain, possibly due to overuse. She had difficulty with activities such as reaching her seatbelt, getting dressed and sleeping. She no longer had the catching pain she had prior to the subacromial decompression.
Dr Dalton first examined and reported on Ms Gauci on 23 July 2007. He recorded that she was throwing a box on 4 November 2004 when she felt a popping sensation and pain in her right shoulder, but continued working until she completed the job. She was then aware of diffuse pain around the right shoulder girdle extending up to the neck, which she initially thought was muscular.
By the New Year (2005), Ms Gauci’s pain was worse and movements were apparently restricted. She saw a chiropractor, who treated her for the next two years. Her response to treatment was variable and, at times, her pain was aggravated. She later undertook a gym program for six months while still working. She saw Dr Hoe in September 2006 and he recommended that she have one month off. Her symptoms settled a lot during that time, but, after she returned to work, the pain returned. She denied having any prior history of shoulder problems.
Ms Gauci had recently had an injection of local anaesthetic, which increased the intensity of her pain. Since the injection, she had been complaining of burning, tingling and stinging sensations over the top of her right shoulder girdle. She had difficulty sleeping on her right side and had to lie in her bed with two pillows to support her arm. She had difficulty reaching and said that she could not vacuum and had become increasingly depressed about her condition. She complained to Dr Dalton of constant pain of variable intensity, which usually increased after 30 minutes of sitting or standing. She also got pain with certain movements, though, on some occasions, her shoulder seemed to feel better when it was mobilised. She had done no exercises since the injection.
Dr Dalton said that there was surprisingly little to find on objective examination. While there was some tightness in the upper trapezii, movements of her cervical spine were unrestricted. She lacked 10–15 degrees of active elevation of the right arm and had good power on manual muscle testing of all rotator cuff muscles, with only mild pain on resisted abduction. There was very slight capsular restriction of external rotation in neutral, but no pain in the quadrant position, and upper limb neural tension tests were negative. There was very mild restriction of external rotation in abduction of the left shoulder.
Dr Dalton said that the most striking aspect of the worker’s examination was the wide discrepancy between her subjective complaints and the objective findings. That suggested an increased sensitisation, but she did not present with features of neuropathic pain. Her response to the injection of local anaesthetic was atypical. Given the lack of underlying pathology and the fact that her pain response was exaggerated, Dr Dalton advised against any surgical intervention. That was not to say that she presented with abnormal pain or illness behaviour. He felt that she was depressed and anxious, which was compounding her problems. He felt that the best approach was for her to get some form of pain management. He commenced her on Lyrica and noted that she was already taking Avanza. He suggested the use of a TENS machine if necessary and encouraged her to try to maintain motion and do some gentle strengthening exercises, as her pain allowed. He wanted to try to gradually increase her hours at work.
Dr Dalton again examined and reported on Ms Gauci on 29 August 2007. At that time, she was working part-time as a medical receptionist for 20–22 hours per week and was enjoying her new job. She encountered difficulties pulling the heavy file drawers, though she felt that her small stature was an issue as it caused her to have to reach further forward. Overall, she reported little change in her symptoms. The only objective finding was a mild loss of active elevation and abduction at the right shoulder, with pain predominantly centred over the suprascapular and deltoid region.
Dr Dalton felt that the worker had a combination of “increased sensitisation or neuropathic pain” which had perhaps been “potentiated by her frustration and anxiety in the past”, though he added that she presented “very well”. He felt the best approach was to continue with her current program of trying to increase her exercises and mobility, taking Panadol as required, and maintaining her current work duties. He felt that an increase in her workload would be ill advised, but could be reviewed at a later stage.
Ms Gauci relies on evidence from Dr Richard Deveridge, general surgeon. He examined and reported on Ms Gauci on 30 August 2007. He took a history that she injured her right shoulder at work on 4 November 2004. On that day, the pharmacy received a delivery of 100 boxes of stock that had to be moved to the upstairs storeroom. The boxes weighed about 4–5 kg. Ms Gauci stood at the bottom of the stairs and threw the boxes to another worker on the first landing. Towards the end of the load, she lifted one particular box from the ground and turned to throw it up the stairs, when she experienced a painful “popping” sensation at the ball of her right shoulder. It was quite painful, but she thought she had just “pulled a muscle” and she continued with her job. She was aware that the business was to be sold in the forthcoming months and she did not want to jeopardise her position.
When she failed to improve, she saw Dr Singh in January 2005. Dr Deveridge viewed the WorkCover certificates issued by Dr Singh and noted the restrictions in them (see [43] above). Dr Deveridge noted the change of ownership on 31 March 2005 and that the new employer reappointed all employees on a casual basis. Ms Gauci continued to work for the pharmacy on restricted duties, but only for two days per week. She secured a second job working as a doctor’s receptionist to supplement her income.
Dr Deveridge recorded that Ms Gauci had received treatment with various types of analgesics, anti-inflammatory and antidepressant medication. At the time of his examination, she confined herself to simple medication such as Panadol. She had also had physiotherapy, chiropractic treatment and a gymnasium program. Sometimes the therapy was of benefit, but at other times it left her in more pain. The worker had surgery on 30 January 2007. Though he had not seen the operation report, Dr Deveridge thought she had undergone a subacromial decompression with or without acromioplasty and possibly a rotator cuff debridement. The surgery relieved Ms Gauci of the catching sensation, but she was left with other pain and quite limited shoulder movement.
Dr Deveridge recorded that, for the last couple of years, the worker’s right shoulder pain had spread towards the right side of her neck and shoulder blade. Since at least the beginning of 2007, she had become aware of a gradual onset of left shoulder pain, particularly on reaching. She attributed that pain to having to do everything with her left hand, particularly after the right shoulder operation, when the left-sided pain became more prominent.
At the time of Dr Deveridge’s examination on 30 August 2007, the worker experienced bilateral shoulder pain and limited movement. She could not lift any significant weight away from her body, or above chest level. She found it very painful to reach above shoulder height and avoided any pushing, dragging and rotatory arm action. She slept poorly and could not get comfortable lying on either side. She was limited in many activities of daily living and had difficulty with personal care and daily hygiene. She had great difficulty reaching behind her back with either arm. She had had her hair cut short because she had difficulty washing and brushing it. She only did limited and light housework.
On examination, Dr Deveridge noted that the worker was tender around the anterosuperior aspect of the right glenohumeral joint. There was limited right shoulder motion, with a painful arc, particularly on lowering the limb. Movement of the left shoulder was also restricted, but not as much as the right shoulder. The worker’s cervical spine was also tender over the right paracervical/trapezius muscles and there was some mild restriction of motion, but no significant muscle spasm.
Dr Deveridge reviewed the diagnostic studies and recorded that a September 2006 ultrasound study of the right shoulder showed evidence of “subacromial bursitis under probable small intrasubstance tear of the supraspinatus tendon”. An October 2006 MRI of the right shoulder group revealed an “intrasubstance delamination tear of the juxta-insertional fibres of the mid supraspinatus tendon”. It also revealed mild scuffing of the bursal fibres at the junction of the supraspinatus and the infraspinatus. There was also mild supraspinatus tendinosis and moderate subacromial/subdeltoid bursal thickening.
Dr Deveridge agreed with the radiology reports.
Under “opinion”, Dr Deveridge stated that he assessed the following injuries/disabilities:
“1.     Right shoulder pain and restricted motion – due to chronic bursitis, rotator cuff tendonitis with partial thickness tears.
2.     Left shoulder joint pain and restricted motion – this has not been investigated to date, but there are clinical features of bursitis and rotator cuff tendonitis.
3.     Neck pain and stiffness – due to chronic musculoligamentous cervical strain injury.”
Dr Deveridge felt that, on the balance of probabilities, the above residual disabilities were attributable to the work injury on 4 November 2004. The left shoulder disability developed later, most probably as a consequence of relative overuse of that limb while favouring the injured right arm. No significant pre-existing or predisposing conditions were identified.
Dr Deveridge expressed an opinion as to Ms Gauci’s capacity for work and assessed her to have a seven per cent whole person impairment as a result of the condition of her shoulders.
Dr Hoe reviewed Ms Gauci again on 2 April 2008 and reported on that day to Dr Singh that she had ongoing problems of pain in her neck and right upper limb. The pain also radiated to her left shoulder. The pain was constant and disturbed her sleep. On examination, there was tenderness and trigger points over the trapezius and posterior neck muscles. There was a mild restriction of shoulder movements. He concluded that Ms Gauci continued to have “what now could be called chronic pain syndrome with other associated symptoms”. The only time she had good relief from her pain was when she was admitted to hospital for a few days because of chest tightness in 2007. She found her job as a receptionist in a (doctor’s) general practice “quite demanding especially with having to pull out heavy filing cabinets”.
On referral by Dr Singh, Ms Gauci saw Dr Milton Cohen, consultant physician, on 27 May 2008. In his report of 3 June 2008, Dr Cohen took a history that Ms Gauci heard a loud “crack” in her right suprascapular area while carrying boxes at work on 4 November 2004 and that she experienced pain in the right side of her neck radiating to her hand. He took a history of her subsequent treatment and progress and noted that, for the last 18 months, and especially the last six months, she also had pain in her left shoulder radiating to the left arm, associated with sensitivity to touch. Ms Gauci reported that her endurance for activity was about 15 minutes and that she had lost hand strength. She had difficulty with hair care, writing, toileting, and variable difficulty with dressing and undressing. Her sleep was limited to three hours at a time and was broken.

Dr Cohen concluded that Ms Gauci’s proximal pectoral girdle pain was a “referred phenomenon from the cervico-thoracic spine”. There was “no suspicion of underlying progressive disease or damage or of neurological encroachment”. He did not believe that the shoulder or the periarticular structures were currently the anatomical origin of her complaints.
Dr Faithfull, orthopaedic surgeon, examined Ms Gauci at the request of Guild Insurance on 8 September 2008. In his report of 9 September 2008, Dr Faithfull listed all the medical reports made available to him. Those reports included reports from the worker’s treating doctors and a medicolegal report from Dr Nigel Hope, orthopaedic surgeon, dated 20 December 2006. Dr Faithfull took a history of the injury on 4 November 2004, when Ms Gauci heard a painful crack in her right shoulder while throwing boxes of Huggies weighing up to 5 kg up a flight of seven steps.
Ms Gauci complained to Dr Faithfull that her right shoulder was painful on the top of the shoulder and that she had neck pain and headaches. She said that her left shoulder also cracked. She also complained of numbness in her right arm going to all fingers, with associated weakness of grip. She had started getting similar problems in her left hand. Active range of movement of the right shoulder was difficult to measure because of pain and Ms Gauci’s inability to hold her arm in one position for very long. It was difficult for the doctor to assess whether any impingement was present or not. Examination of the left shoulder revealed tenderness along the left trapezius, and tenderness in the greater tuberosity and acromioclavicular joint, more like a bruising feeling, but not sharp pain. There was a full range of movement of the left shoulder unaccompanied by any crepitus or impingement.
Dr Faithfull diagnosed a soft tissue injury to the right rotator cuff with bursitis, which appeared to have been initially improved by the surgery by Dr Hoe. However, over the ensuing months, her symptoms appeared to have become generalised and more in the form of a chronic pain syndrome. He assessed Ms Gauci to have a two per cent whole person impairment.

PROCEEDINGS BEFORE THE ARBITRATOR

After the extraordinary history set out at [1]–[29] above, the arbitration proceeded on 19 February 2010. Mr Saul appeared for the appellant and Mr Morgan, of counsel, appeared for Ms Gauci. The matter proceeded with submissions and neither party sought leave to call any oral evidence. Mr Saul made no application for leave to cross-examine Ms Gauci.
Mr Morgan relied on the circumstances of injury set out in Ms Gauci’s statement and said that the appellant had called no evidence to rebut her assertions. Ms Gauci saw Dr Singh because her shoulder was not getting any better. She submitted a claim, which the insurer accepted, and made voluntary payments of compensation. She was paid compensation for the time off after her surgery. Dr Faithfull accepted the worker’s complaints and history, and determined that she had a whole person impairment as a consequence of that injury. There was no specialist medical opinion that Ms Gauci suffered from a disease affecting her shoulders.
With respect to the anticipated argument about the lack of complaint to Dr Singh of a work incident when Ms Gauci saw him on 20 January 2005, Mr Morgan said that the employer had “its resources available to it”. Despite the employer having had the worker’s statement available to it since 2008 and having paid for periods of partial incapacity and having paid for substantial surgery, the employer put on no evidence.
Mr Morgan urged the Arbitrator to accept the opinion of Dr Deveridge with respect to causation of Ms Gauci’s left shoulder condition. He said that there was no expert evidence that working part-time in a doctor’s surgery impacted on Ms Gauci’s underlying condition, giving rise to a suggestion that injury would rest elsewhere. Dr Singh’s notes made no reference to any shoulder problem before 4 November 2004.
Mr Saul made the following submissions:
(a)     it was unproductive to go over the matter’s history. Ms Gauci sued the “wrong entity completely” (T7.11) and (therefore) the Arbitrator could not make orders “in respect of the MAC” (T7.13) because the appellant “didn’t form part of the MAC” (T7.19);
(b)     “the claim was not made in accordance with the Act or guidelines” (T7.56);
(c)     he did not care about the history of the matter “in terms of compensation having been paid – that’s irrelevant” and “Sinclair’s case made it very clear that just because an insurer might make payments of compensation, once the issues are enjoined between the parties, they become issues that must be proven, and the payment of compensation is not an admission of liability in any circumstances, unless an admission is made” (T11.56–12.5);
(d)     the Arbitrator had to look at all the evidence to determine whether Ms Gauci sustained an injury on 4 November 2004 in the course of or arising out of her employment (T12.19);
(e)     Ms Gauci made no complaint of having hurt her shoulder at work when she saw Dr Singh on 20 January 2005, but only complained of shoulder pain. One week after that, she said to Dr Singh that she wished to “put her visit of 20 January to a workers compensation injury” (T13.7). There was no detail of what happened and no allegation of a report to the employer;
(f)      I had held in a number of decisions that the delay between an alleged injury and its reporting to medical practitioners is a very important consideration when assessing whether an injury happened or not (T13.14);
(g)     when injury was in issue, a worker has to do more (than) just say she reported it. The worker needed “either to get corroborative evidence”, put in a “notification of injury form” or put in “some documentation that she may have filled [in]”, or a clinical record (from a general practitioner). In this case, the Arbitrator “had nothing”. The first document was the entry in Dr Singh’s notes on 20 January 2005;
(h)     Dr Dalton took a history that Ms Gauci developed pain on 4 November 2004, continued working, but did not report it until after the new year (T14.42);
(i)      the “gap” (presumably between the date of injury and the complaint to Dr Singh) was too great (T14.52) and the Arbitrator would not find that Ms Gauci sustained an injury on 4 November 2004 because she had not discharged the onus she carries;
(j)      Ms Gauci had a bursitis that was “clearly an underlying condition” (T15.3) and, whatever happened on 4 November 2004, employment was not a substantial contributing factor to “whatever this condition is” (T15.6);
(k)     the Court of Appeal has said in many cases that “the very expression, ‘Itis’, the suffix ‘Itis’ in itself is a morbid condition progressive disease” (T15.14). It’s something that gets worse and Ms Gauci has said that her condition was worsening. That is characteristic of an underlying degenerative worsening condition, therefore, a disease. The worsening of her symptoms was sufficient to characterise an aggravation of this disease condition (T15.26);
(l)      Ms Gauci worked for a new owner of Arcade Pharmacy, doing limited hours, but work that involved use of her right arm “which she complained kept getting worse” (T15.33). She also took extra employment in a doctor’s surgery, where she complained quite bitterly about aggravation of her condition. Reference was made to notes from Dr Singh and Mr O’Reilly;
(m)   the reference to “pain at rest is worse” in Dr Hoe’s report of 24 November 2006 was “classic of a disease process” (T17.4). Ms Gauci has a degenerative condition, bursitis, she first started complaining of it, perhaps, in November 2004, she first saw a doctor in January 2005, it was “progression of simply a disease process or an ongoing underlying problem” (T17.26);
(n)     the general body of medical evidence “seems to suggest that this is an underlying degenerative disease-type condition, that is progressively getting worse and worse, and becomes aggravated by subsequent employment” (T17.31);
(o)     Dr Faithfull did not have Dr Singh’s clinical records and did not have the correct history. If he had a history of the “progressive problem that the worker complains of” (T18.33), his opinion might be entirely different;
(p)     the Arbitrator’s suggestion that Dr Singh’s notes could have been put to Dr Faithfull reversed the onus (T19.6);
(q)     even if the worker succeeded on the “first leg” (injury on 4 November 2004), she could not escape the fact that it is a progressive condition and the Act requires the Arbitrator to order that the last employment be responsible for the payment of compensation;
(r)      the only claim was a claim for lump sum compensation and, under Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701, the date of injury is the date of claim in 2008. She had two subsequent employers and did the sort of duties that would aggravate her condition, and
(s)     it was not up to the employer to discharge any onus. If the Arbitrator found there had been an aggravation to an underlying condition, the worker should have that employer here for him to make an award against because the relevant employer is not the appellant.
In reply, Mr Morgan said:
(a)     Ms Gauci had no problem with her shoulder before 4 November 2004;
(b)     he chose not to run a s 15 (disease) case because all the medical evidence, including from Dr Faithfull, supported the mechanism of injury as described (T21.10);
(c)     Mr Saul may well have given the statements (presumably this was a reference to the clinical notes from Dr Singh) to Dr Faithfull. In any event, the Arbitrator could not be satisfied that Ms Gauci’s complaints of pain would satisfy him, as far as a substantial contributing factor was concerned, with respect to any suggestion of an aggravation or deterioration. Ms Gauci moved light stock and worked reduced hours (in her subsequent employment);
(d)     with regard to Dr Dalton’s history regarding the lack of report, Ms Gauci’s evidence was that she soldiered on. The doctor’s reference to a lack of report was to a lack of report to a medical practitioner, which was consistent with the worker’s evidence that she saw the doctor when she failed to improve;
(e)     the appellant tendered nothing from the employer and nothing from a medical point of view to address the mechanics as the (worker) described. In the absence of anything from the employer to suggest otherwise, the Arbitrator would accept Ms Gauci with respect to how she described the episode, and
(f)      the worker had an injury, which the employer accepted and payments resulted.
Mr Saul then made further submissions. He objected to the suggestion that Dr Singh’s notes had been given to Dr Faithfull. It was clarified that that had not been done. He then sought an adjournment to call Dr Faithfull. This issue is discussed more fully below, starting at [162].

THE ARBITRATOR’S REASONS

In a detailed Statement of Reasons (Reasons), the Arbitrator reviewed the evidence and the parties’ submissions. The following is only a brief summary of some of his key findings.
After summarising the evidence, and noting the absence of any evidence from the appellant to rebut Ms Gauci’s evidence about the circumstances of her injury, he concluded (at [64]) that she had “sustained a personal injury, within the meaning of s 4(a) of the 1987 Act, to her right shoulder, during the course of her employment with the [appellant] on 4 November 2004”.
With regard to the lack of complaint of a work incident to Dr Singh on 20 January 2005, the Arbitrator did not accept that the only, or probable, explanation for the absence of any reference to the shoulder injury on that day was that the worker had not injured her shoulder at work. He noted that the appellant elected not to seek leave to cross-examine the worker and did not elicit further evidence that would lend weight to its argument that the history on 27 January 2005 was false.
The Arbitrator accepted the evidence from Dr Deveridge as to the causal nexus between the injury on 4 November 2004 and Ms Gauci’s subsequent symptoms. Based on the worker’s evidence and the medical evidence, he was satisfied that employment was a substantial contributing factor to the injury.
On the disease issue, he said (at [71]) that nothing in the evidence established that the worker’s right shoulder condition was “contracted by a gradual process” (s 15 of the 1987 Act) during the course of her employment with the appellant and s 15 was not applicable. He said (at [73]) that there was no evidence of what counsel (for the appellant) referred to as “an underlying degenerative disease” that would substantiate the argument that the worker aggravated a disease affecting her right shoulder during the course of her employment with the appellant, as contemplated by s 16 of the 1987 Act. The worker experienced a “sudden or identifiable pathological change” during the course of her employment on 4 November 2004.
The inflammation experienced by the worker in the wake of the trauma experienced on 4 November 2004 did not negate the worker’s case that she sustained an injury simpliciter on that day. The existence of a disease did not prevent a worker from relying on an injury simpliciter (Zickar v MGH Plastic Industries Pty Ltd (1996) HCA 31; 187 CLR 310 (Zickar)). The injurious event on 4 November 2004 did not aggravate pathology that was already in existence and there was no evidence that Ms Gauci had pre-existing shoulder problems. For that reason, s 16 did not apply. The fact that the pathology caused by the activity at work on 4 November 2004 was in the nature of a disease did not alter the fact that Ms Gauci suffered a s 4(a) injury. It followed that the appellant could not escape liability in respect of pathology that resulted from the injury sustained on 4 November 2004 (Rail Services Australia v Dimovski [2004] NSWCCA 267; 1 DDCR 648 (Dimovski); Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (Lyons)).
On the question of whether Ms Gauci suffered an aggravation of a disease with a subsequent employer, the Arbitrator said that the appellant bore the evidentiary onus of proving that Ms Gauci suffered such an injury. He did not accept that Dr Singh’s notes on 2 April 2007 indicated that the worker’s condition had been aggravated by her work with the subsequent owner of the pharmacy. The mere fact that the worker experienced severe shoulder pain after 3–3.5 hours’ work in 2007 did not establish that her underlying condition had been made worse by work for any subsequent employer. There was no medical evidence that diagnosed the worker’s shoulder condition as having been caused by her subsequent employment. Complaints of pain did not establish that the symptoms were caused by the work at that time, as distinct from reflecting the inevitable progression of the worker’s bursitis and tendonitis which resulted from her injury on 4 November 2004.
He noted the differentiation between “revelation and genesis” was relevant (Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55 (Hussey)). While pain brought on by work “may constitute an aggravation of a pre-existing injury even though no pathological change takes place, the question of whether it does or not is one of fact that is to be decided by a tribunal or court” (emphasis included in Arbitrator’s decision) (Commonwealth of Australia v Beattie (1981) 35 ALR 369 (Beattie)), the evidence did not establish anything more than a momentary and self-limiting experience of difficulty which could not be considered to constitute an aggravation of a disease or injury simpliciter.
After reviewing the history of the matter, the Arbitrator said that he refused the application for adjournment to call Dr Faithfull because the parties were expected to have lodged all material on which they proposed to rely when the matter proceeded to arbitration. The representatives confirmed at the start of the hearing on 19 February 2010 that the matter was to be determined on the basis of the documents they had lodged. It would be at odds with the practice of the Commission, and the objective of expeditious dispute determination, if a party were to be permitted to reopen its case to supplement its evidence in order to address the submissions of another party.
On the issue of whether the matter should be remitted to a different AMS for a further whole person impairment assessment, the Arbitrator said that the appellant sought to “elevate form over substance”. It was not uncommon for a worker to record an incorrect name for an employer and it was standard practice for amendments to be made, usually at a teleconference, to rectify formal errors of that nature. A formal error in the naming of a party (in a MAC) could have no bearing on the substantive question considered by the AMS.

ISSUES IN DISPUTE

The issues identified in the notice of appeal are whether the Arbitrator erred in:
(a)     reversing the onus of proof relevant to the dispute as to injury and his consideration as to whether the appellant was entitled to put Ms Gauci to proof in respect of such issues as injury, causation and substantial contributing factor (onus of proof);
(b)     drawing inferences adverse to the appellant by reason of a failure to call evidence from Mr Taing in circumstances where such an inference was not properly drawn nor available and in taking account of the absence of cross-examination of Ms Gauci in the determination of the disputed issues. Further, the Arbitrator reversed the onus of proof in respect of certain issues in making findings as to certain issues based on the absence of evidence in rebuttal rather than on the basis of the requirement of positive proof by the worker (adverse inferences);
(c)     categorising the worker’s injury as an “injury simpliciter” rather than as a disease process and consequently erring in the consideration and application of the disease provisions (categorisation of the injury);
(d)     considering an absence of complaints of symptoms by Ms Gauci prior to 20 January 2005 as “co-relating with the absence of an underlying degenerative disease” (absence of complaints prior to 20 January 2005);
(e)     his consideration of both the requirements for evidence and the evidence itself so far as the aggravation of Ms Gauci’s condition in her subsequent employment was concerned (categorisation of the injury);
(f)      making findings and determinations adverse to the appellant by reference to the medical evidence of Dr Faithfull (including by reference to the absence of a further report from Dr Faithfull), particularly where the Arbitrator has refused the appellant the opportunity of calling Dr Faithfull to give evidence and the opportunity of adjourning the proceedings to obtain a further report from Dr Faithfull (Dr Faithfull’s evidence), and
(g)     failing to refer the matter for assessment by an AMS and in determining the matter based on the previous assessment made in respect of different parties and different evidence (failure to refer for a second assessment by an AMS).

SUBMISSIONS, DISCUSSION AND FINDINGS

In dealing with this review, I have had regard to the oral submissions before the Arbitrator, the written submissions on appeal and the oral submissions by Mr Stockley, counsel for the appellant on appeal. It is important to note, however, that the issues in dispute on appeal are not at large, as the submissions by Mr Macken have assumed. They are the issues identified in the notice of appeal and in the submissions in support of that notice (Winter at [94]).

Onus of proof

The written submissions in support of the appeal, which were prepared by Mr Macken, made a bald assertion that the Arbitrator erred in his consideration of whether the appellant was entitled to put the worker to proof on the issues of injury, causation and substantial contributing factor. In additional submissions filed on 13 July 2010, Mr Macken submitted (by reference to T3.23) that the attempt by “the Applicant to place an evidentiary onus on the Respondent to rebut the allegation of injury mistakes where the onus rests particularly as the Respondent worker has specifically been put on notice that injury is disputed”.

As to this matter in general, it is especially troubling that Guild Insurance did not file a s 74 notice in 2008. If an insurer disputes liability, it has a statutory obligation to provide a statement of the reason it has done so and the issues relevant to the decision (s 74(1)). The notice “must contain” a “statement identifying all reports and documents submitted by the worker in making the claim for compensation” and a “statement identifying all reports of the type to which clause 46 applies that are relevant to the decision, whether or not the reports support the reasons for the decision” (cl 34 of the Workers Compensation Commission Regulation 2003 (the 2003 Regulation), which is in the same terms as cl 43 of the Workers Compensation Commission Regulation 2010 (the 2010 Regulation)).
Clause 37 of the 2003 Regulation (which is in the same terms as cl 46 of the 2010 Regulation) applies to a decision to dispute liability in respect of a claim in circumstances requiring the insurer to give the worker a notice and reasons under s 74. Its terms applied in this matter to require the insurer to provide to the worker a copy of any “relevant report” to which the clause applied, as an attachment to a notice under s 74. A “relevant report” includes, among other documents, medical reports, medical certificates and, significantly in the present case, “reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made” (cl 37(h) of the 2003 Regulation and cl 46(h) of the 2010 Regulation). The obligation to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision (to dispute the claim) relates, “whether or not the report supports the reasons for the decision” (cl 37(4) of the 2003 Regulation and cl 46(4) of the 2010 Regulation).
Had Guild Insurance complied with s 74 and the applicable Regulation in 2008, the issue of the identity of the employer (if that was really an issue) would have been raised and clarified at that time. In addition, “relevant reports”, such as medical certificates and claim forms, would have been served on Ms Gauci. I note that Mr Macken’s purported s 74 notice dated 24 December 2009 (see [28] above) did not attach any claim forms or similar documents, as required by cl 37, and yet Mr Saul argued that the worker’s claim could not succeed because of a lack of documentation (see [209] above). Mr Macken also failed to attach a copy of Dr Nigel Hope’s report (see [88] above).
As I said at the start of this decision, this matter has a most unsatisfactory history. The above analysis and reasons demonstrate why. Guild Insurance’s conduct of this claim has left much to be desired and was inconsistent with accepted principles relating to the conduct of litigation in a tribunal such as the Commission.

DECISION

The Arbitrator’s determination of 9 April 2010 is confirmed.

COSTS

The respondent worker sought costs of this appeal and of the appeal to Deputy President O’Grady. The appellant has opposed that order. Costs in the Commission are regulated by Sch 6 of the 2010 Regulation. If an appeal is lodged in respect of a claim or dispute, no amount is recoverable for costs for any service or matter unless the appeal “is determined, is withdrawn or lapses” (cl 100(4) of Pt 17 of the Regulation).
Though the appeal to Deputy President O’Grady was initially determined in favour of Ms Gauci, that order was set aside by consent on 5 August 2011 and is no longer of any effect. As I do not have power to restore that order, it follows that the only appeal that has been determined is the current appeal and that I do not I have power to make an order for costs in respect of the matter before Deputy President O’Grady.
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

Bill Roche

Deputy President
22 December 2011

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

ASSOCIATE