Cypress Resort Management Pty Limited v Teasdale - [2014] NSWWCCPD 77

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cypress Resort Management Pty Limited v Teasdale [2014] NSWWCCPD 77
APPELLANT:	Cypress Resort Management Pty Limited
RESPONDENT:	Kim Maree Teasdale
INSURER:	CGU Workers Compensation (NSW) Limited
FILE NUMBER:	A1-1620/14
ARBITRATOR:	Mr Ross Bell
DATE OF ARBITRATOR’S DECISION:	21 August 2014
DATE OF APPEAL DECISION:	25 November 2014
SUBJECT MATTER OF DECISION:	Alleged error of law; suggested absence of evidence permitting finding of injury; alleged error of fact; weight of evidence; availability of inferences drawn from the evidence
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry Lawyers
Respondent:	Philip Watson Pty Limited
ORDERS MADE ON APPEAL:	1. The findings made by the Arbitrator and the orders made, as found in the Certificate of Determination dated 21 August 2014, are confirmed. 2. No order as to costs of the appeal.

BACKGROUND

Ms Kim Teasdale was employed as a housekeeper with Cypress Resort Management Pty Ltd (the appellant) in 2005. She commenced as a casual employee and, after 12 months, was appointed as a permanent part time employee working 25—30 hours per week. Ms Teasdale was required to undergo a physical examination by a medical practitioner before commencement of that employment.
On 19 October 2008, whilst in the course of her employment, Ms Teasdale received injury when a heavy laundry bag was dropped from a height which then struck her on the right arm and shoulder. Ms Teasdale, by reason of pain, was unable to complete her shift.
Ms Teasdale sought treatment at Cessnock Hospital, following which she was absent from work for a period of five weeks. She consulted her general practitioner, Dr David McQueen. Ms Teasdale was referred to a physiotherapist for treatment and returned to work on light duties.
Ms Teasdale received conservative treatment thereafter, however by reason of persisting pain, she was referred to Dr Donald Osborne, orthopaedic surgeon. On 30 November 2009, Ms Teasdale underwent arthroscopic acromioplasty decompression of her right shoulder. Ms Teasdale remained absent from work until 20 February 2010 at which time she returned to work with the appellant performing suitable duties and underwent rehabilitation which had been arranged. The appellant was prepared to retain Ms Teasdale, however, by reason of pain, Ms Teasdale ceased that employment in August 2010.
On 27 September 2013 a claim was made on behalf of Ms Teasdale by her solicitors against the appellant for lump sum compensation in respect of alleged permanent impairment resulting from injury to her cervical spine and right shoulder. The appellant did not dispute the occurrence of injury to Ms Teasdale’s right shoulder however it disputed her allegation of injury to the cervical spine.
The dispute concerning Ms Teasdale’s entitlement to lump sum compensation was the subject of an Application filed with the Commission in April 2014. That application, as amended, sought orders pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The matter came before Arbitrator Ross Bell for conciliation and arbitration on 14 August 2014 at which time the matter proceeded to hearing. The Arbitrator made findings that Ms Teasdale had received an injury to her right shoulder and to her neck as a result of the incident which occurred on 19 October 2008. The Arbitrator’s reasons were delivered extempore on that day. On 21 August 2014 a Certificate of Determination was issued in which the following matters were recorded:
“The determination of the Commission in this matter is as follows:
1. That the claim for section 66 of the Workers Compensation Act 1987 (the 1987 Act) lump sum compensation in respect of injury to the right upper extremity; and cervical spine is remitted to the Registrar for referral to an Approved Medical Specialist (AMS).
2. The reports of Dr Ghabrial are excluded from the evidence before the AMS.
3. The following documents in addition to those annexed to the Application to Resolve a Dispute and the Reply are admitted before the AMS:
a.Supplementary report of Dr Wallace 13 August 2014;
b.Documents attached to Application to Admit Late Documents (AALD) dated 12 August 2014 comprising clinical notes from Directions for Production;
c.Documents attached to AALD filed by the applicant on 10 July 2014 (except reports of Dr Ghabrial).”

PRELIMINARY MATTERS

Thresholds

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

On the papers

Both parties submit that the appeal may be determined on the papers as is permitted by s 354(6) of the 1998 Act. Having regard to Practice Directions Nos 1 and 6, and the documents before me, 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.

Interlocutory

The appellant, placing reliance upon my decision in Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101 (Nguyen), submits that the decision of the Arbitrator is one which finally disposes of the rights of the parties concerning the dispute as to receipt by Ms Teasdale of an injury to her neck. It is put that the decision is not interlocutory in nature and thus leave to proceed with the appeal (s 352(3A) of the 1998 Act) is not needed.
Ms Teasdale makes no submission concerning any relevance of s 352(3A).
My decision in Nguyen, from which, for reasons stated below, I have since departed, was determined before the enactment of s 352(3A), that is at a time when there was no appeal from an interlocutory decision: former s 352(8) of the 1998 Act. The decision in Nguyen was founded upon a necessary acceptance that such a finding of injury was, unless set aside on appeal, final.
Since the decision in Nguyen there have been a number of decisions of the Commission on appeal which have concluded that a determination made in terms similar to the present, that is a finding as to injury or other issue is made and a referral is made to an Approved Medical Specialist (AMS) for assessment pending final order, is interlocutory. Some other decisions have raised doubt as to whether such a decision is or is not interlocutory in nature. This uncertainty reflects the difficulties in determining such question as may be found in the discussion by the members of the High Court, in a somewhat different context, in Hall v The Nominal Defendant [1996] 117 CLR 423.
Having regard to the reasoning found in those more recent decisions of the Commission, and having regard to the desirability of maintaining comity, my present view is that a finding of injury, such as the present, made by the Commission in the absence of final determination of entitlement, answers the description of an interlocutory decision and may only be the subject of appeal upon the granting of leave.
In the present matter, should the challenge made by the appellant have merit, the need for conduct of the AMS assessment would be obviated. In such circumstances it is, in my view, desirable for the proper and effective determination of the dispute, that the appellant be granted leave to proceed with this appeal, and I so order.

ISSUES IN DISPUTE

The grounds of appeal which appear at [2.8] of the appellant’s Application are expressed as follows:
“(a)an error of fact in that the Arbitrator erroneously found, contrary to evidence before him, that the worker injured her neck on 19 October 2008 and that that incident was a substantial contributing factor to the exacerbation of cervical spondylosis;
(b)     an error of law, in that he failed to follow the principle that the evidence upon which his determination was required to be based should be logical and probative;
(c)     an error of fact and law in purporting to resolve the absence of contemporaneous complaints by the worker by stating that she cannot be expected to distinguish where her symptoms are coming from (on the basis that she is not medically trained), that ‘it is possible that she has conflated the neck and shoulder issues and worked backwards from being told that the neck may be implicated in the source of pain”, and that because the worker “is a poor historian… that explains the various histories given about something she really did not know the source of”;
(d)     an error of fact and law in accepting the opinion of Dr Spittaler, which proceeded from an erroneous history, did not explain the delay in the worker’s complaints of neck symptoms, and recorded a diagnosis of exacerbation of spondylosis without a proper explanation for that opinion.”
The grounds, as they appear immediately above, lack precision. Notwithstanding that lack of precision, it is clear that the appellant challenges the Arbitrator’s factual finding as to injury to the neck. It also appears to be asserted that an error of law has been committed by the Arbitrator in failing to comply with the requirement that evidence relied upon in reaching factual conclusions should be “logical and probative”. That assertion appears to be founded upon the content of Rule 15.2 of the Workers Compensation Commission Rules 2011. The appellant also challenges the Arbitrator’s reasoning process when addressing Ms Teasdale’s evidence. Further, the Arbitrator’s acceptance of the opinion of Dr Spittaler is challenged upon the basis that the history recorded by Dr Spittaler, consultant neurosurgeon, was “erroneous”.
The submissions in support of the grounds relied upon represent, generally, a re-statement of argument as advanced before the Arbitrator. It is further argued that the Arbitrator should have rejected the evidence of Dr Spittaler and that “the absence of contemporaneous symptoms is fatal to [Ms Teasdale’s] claim”. These arguments are addressed in the course of discussion which appears below.

THE ARBITRATION HEARING

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. That transcript includes the reasons as expressed by the Arbitrator for his decision which were delivered following submissions put on behalf of each party.
The Arbitrator identified the documentary evidence which was before him at T2 and T3. I note that the evidence of Dr Y.A.E. Ghabrial, orthopaedic and spinal surgeon, contained in three reports prepared by that practitioner, were excluded from evidence by order of the Arbitrator. That evidence had been tendered on behalf of Ms Teasdale. The basis upon which that evidence was excluded is not recorded in the transcript. It appears that a preliminary ruling may have been made with respect to the admissibility of that evidence during the conciliation stage. It also appears that the Application as filed on behalf of Ms Teasdale was the subject of amendment, given that a claim in respect of “pain and suffering” had been struck out at 5.6 of that document. Whilst the transcript does not record the basis of, or reasoning behind, the deletion of that claim, it no doubt reflects the consequences of the passage of the 2012 amendments to the Acts which included repeal of the provisions of s 67 of the 1987 Act. Having regard to the date of claim made on behalf of Ms Teasdale, the provisions in the Workers Compensation Amendment Act 2012, effecting repeal of s 67, were fatal to her claim in respect of pain and suffering: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213.

Factual background

There is no dispute that, on 19 October 2008, Ms Teasdale was struck on the right shoulder and upper arm by a full laundry bag which had been dropped by a fellow worker from a point one floor above Ms Teasdale’s position. There is no dispute between the parties that as a result of that incident Ms Teasdale received an injury to her right shoulder which caused incapacity and required ongoing medical treatment which included the procedure conducted by Dr Osborne referred to at [4] above.
There is no mention of complaint made by Ms Teasdale concerning any symptoms experienced in her cervical spine to be found in the histories recorded by those treating her immediately following the incident. The evidence reveals that, following complaint of right occipital pain made in August 2009, Ms Teasdale was referred for a cervical spine x-ray, the report being:
“Bony alignment is near anatomical. Intervertebral disc spaces preserved. There is some calcification in the anterior intervertebral discs at C5/6 and C6/7 associated with small anterior osteophytes. No subluxation is seen.”
The appellant adduced uncontroversial evidence of complaint of neck pain on occasions before the work incident. The evidence established that Ms Teasdale had complained of experiencing pain in her neck following a motor vehicle accident which occurred on 25 December 1998. That complaint is recorded in clinical notes maintained by staff at Cessnock Hospital. The relevant entry is as follows:
“MVA 25/12/98 since has pain in neck. And lower back. Tonight severe pain in neck and back pain radiates to both arms → (? heavier). No pins and needles; had two diazepam tonight and not better.”
An entry recorded at Cessnock District Hospital emergency department on 3 June 2004 relates to Ms Teasdale’s attendance seeking treatment in respect of “severe occipital headache → (R) shoulder”. That note also records marked right sided cervical “spasm and tenderness”.
In October 2010 Ms Teasdale came under the care of Dr Simon Tame, specialist in pain medicine. In correspondence addressed to Dr McQueen, Dr Tame noted Dr Osborne’s surgical treatment which occurred in November 2009 and stated:
“Since then she has unfortunately failed to thrive and had an ongoing right neck, shoulder and arm pain problem. This is associated with pins and needles in the wrist and hand and a significantly reduced range of shoulder motion.”
Dr Tame, when addressing treatment suggestions, stated in that correspondence:
“In terms of treatable neuropathic conditions we need to rule out cervical spine pathology given the nature of the injury and I’ve ordered a cervical MRI scan.”
The MRI investigation arranged by Dr Tame was conducted on 9 November 2010. The report by Dr Lynn Smith of the Hunter Imaging Group included the following conclusion:
“1.     Mild annular disc bulge at C5/6 without canal stenosis. The C4/5 level was not optimally visualised but a significant disc protrusion has not been identified.
2.      Mild uncovertebral spurring at C4/5 on the right and C5/6 on the left is minimally encroaching on the foramina.
3.      No intrinsic cord abnormality. There appear to be changes in the thyroid gland. If not already known, an ultrasound would be recommended to further assess in the first instance.”
Dr Tame had written to the appellant’s insurer on 20 October 2010 stating the need for “an MRI scan to rule out significant cervical spine pathology causing neuropathic arm pain”.
The evidence of Ms Teasdale is found in two statements made by her, the first dated 31 March 2014 and the second dated 4 July 2014. The circumstances of the work incident in October 2008 was described by Ms Teasdale as follows:
“On 19 October 2008, I was cleaning a two-storey villa with another housekeeper, Elizabeth Ruddock. I was downstairs cleaning the kitchen and Elizabeth was upstairs changing the bedding. After I had finished, I was standing at the bottom of the stairs and as I looked up Elizabeth dropped a linen bag which hit me on the right arm and shoulder. I had tried to move away as it came at me but was not quick enough.
The bag was full of bedding and was very heavy. I heard a crack in my right shoulder and felt immediate pain in my right shoulder. I reported the incident to my supervisor, Jenna, and I was in such pain that I couldn’t finish my shift.
I drove myself to Cessnock Hospital where I underwent an x-ray which came back clear. I was off work for the next five weeks and I had difficulty moving my arm and was in pain. My GP, Dr McQueen, referred me for physiotherapy which I had with Stewart Burns at Cessnock. I then returned to work on light duties.”
Ms Teasdale, in the first statement, described experiencing pain, at the time that statement was made, extending from her neck to her shoulder down her right arm and hand. She described experiencing spasms and a weakness in her right shoulder.
The second statement made by Ms Teasdale includes an acknowledgement of right shoulder and neck pain experienced following a motor vehicle accident which occurred in December 1998. Ms Teasdale stated that she had recovered from those symptoms “within a few months” and that she had no “troubles” with her right shoulder or her neck at the time of the accident in October 2008. Ms Teasdale stated that she had been examined by Dr Khan, a general practitioner at Cessnock, prior to her commencement of employment with the appellant. She stated that she “passed” that medical examination and that she had no pain, nor restriction of movement, in her neck or right shoulder at the time of that examination. Ms Teasdale further stated:
“Following my accident on 19 October 2008, I had pain in my right arm and over time developed pain in my neck as well. This became more apparent after the surgery that Dr Osborne carried out on 30 November 2009.”

SUBMISSIONS BEFORE THE ARBITRATOR

Counsel for Ms Teasdale noted that the evidence of complaint concerning neck disability made prior to the date of injury, were but isolated references in the hospital notes. Ms Teasdale, it was emphasised, had undergone a medical examination before commencement of her employment and had, at that time, no neck pain or restriction.
Reference was made by Counsel to the evidence which established that Ms Teasdale, within ten months of the date of the work incident, complained to the Cessnock Hospital Emergency Department staff of “right occipital pain” following which x-ray examination was conducted.
The correspondence of Dr Osborne dated 9 November 2010 demonstrates, it was argued, that by that time the treating surgeon was of the view that it was “possible a lot of [Ms Teasdale’s] problem is coming from the neck”. The sequence of events, it was argued, established “the necessary link”. Ms Teasdale was in good health when she commenced employment; she suffered a significant trauma to her shoulder which “could clearly be a cause of the neck pathology” (at T8).
Argument advanced by the appellant’s Counsel focused upon a detailed examination of contemporaneous records including the incident report dated 20 October 2008 and subsequent medical records, none of which included a report of neck symptoms. The diagnoses expressed by the various medical practitioners were limited to the subject of a shoulder injury. All treatment, it was emphasised by Counsel, focused upon the shoulder. It was Dr Tame who raised the question of neck pathology in October 2010. The evidence of Dr Tame, it was argued, did not establish proof of injury to the neck. Dr Osborne’s subsequent reference to “possible” neck involvement does not establish proof of neck injury. There is no evidence, it was further argued, from Dr Russo, the pain management specialist, which might prove injury to the neck.
It was argued that the evidence of Dr Spittaler, upon which Ms Teasdale relied, should be rejected. Dr Spittaler’s expressed view that Ms Teasdale had received a neck injury which had been caused by the work incident was, it was submitted, founded upon “incorrect history”, that is, that Ms Teasdale had experienced “immediate right shoulder pain which radiated into the neck”. A further basis for rejection of that evidence was the absence in Dr Spittaler’s reports of an explanation as to the manner in which the work incident relevantly “exacerbated” the condition of cervical spondylosis. The state of the evidence raised a question as to the weight to be ascribed to Dr Spittaler’s evidence. It was argued that no weight should be given to the opinions expressed by that witness.

It was argued that the evidence of Ms Teasdale found in her first statement is inconsistent with the history recorded by Dr Spittaler. The evidence of Ms Teasdale concerning pain “extending” into the neck found at paragraph 12 of her first statement appears to relate, it was put, to such symptoms experienced in August 2010, that is, two years after the work accident.
It was further argued that the evidence of Dr Raymond Wallace, orthopaedic surgeon, which was relied upon by the appellant, should be accepted. It was emphasised that Dr Wallace had recorded no history of neck pain or disability in his first report dated 16 November 2011. In a later report, dated 13 November 2013, Dr Wallace recorded that Ms Teasdale “does not recall when her cervical spine symptoms commenced” and the opinion, which should be accepted, was expressed that Ms Teasdale’s “cervical spine condition is not related to her work incident on 18 October 2008”.

THE ARBITRATOR’S DECISION

The Arbitrator at the outset of his Reasons for his determination summarised the evidence, following which the submissions put on behalf of each party were noted (between T28—T41). When summarising the evidence the Arbitrator gave particular attention to the histories recorded by the various medical practitioners whose evidence was before the Commission and their opinions concerning the question as to the occurrence of neck injury as alleged.
The Arbitrator proceeded to deal with those issues raised on behalf of the appellant which founded its argument that Ms Teasdale had not discharged the onus of proof concerning the occurrence of injury to her cervical spine. The first matter addressed concerned the evidence of complaints of neck pain and disability prior to the incident. The Arbitrator addressed the evidence concerning the history of the motor vehicle accident which occurred in 1999. The Arbitrator accepted Ms Teasdale’s evidence (at T41.21) that she was “asymptomatic prior to [the work incident]” and concluded that the 1999 motor vehicle accident was not of “any significance”.
The Arbitrator appears to have acknowledged the appellant’s argument that a significant period of time had elapsed between the occurrence of the work incident and Ms Teasdale’s “mention of pain specific to the neck”. The Arbitrator noted the evidence concerning complaint made in August 2009 which led to the radiological investigation at that time. It appears from the Arbitrator’s reasoning that he placed no significance or relevance upon that evidence. It seems to have been accepted by the Arbitrator (at T42.15—20) that the first evidence of neck symptoms was, on the evidence, recorded in November 2010. It also appears that the Arbitrator had accepted that Ms Teasdale “had believed that the neck pain was radiating from the shoulder”. The Arbitrator stated that such assumption made by Ms Teasdale was “not surprising” given the seriousness of the work incident which had led to “major surgery” which had been unsuccessful in the sense that symptoms persisted. The Arbitrator proceeded to state (at T42—43):
“…it is in the Commission’s experience, when multiple body parts are injured, the more serious will get the attention and lesser problems can be masked for some time, especially when they are adjacent body parts, such as the shoulder and neck.”
The Arbitrator proceeded to address the evidence of Dr Wallace. The view was expressed that Dr Wallace did not “discuss the cervical investigations, the MRI”. The Arbitrator further noted that Dr Wallace did not address the “possibility of the aggravation [of spondylosis]”.
The Arbitrator again acknowledged the appellant’s argument that Dr Spittaler’s evidence should be given no weight. Dr Spittaler’s observation concerning restriction “on the right side of the neck, on examination” and the findings of the MRI investigation, had led to his conclusion that there had been exacerbation of underlying spondylosis. The Arbitrator accepted that Dr Spittaler’s diagnosis “seems perfectly reasonable on a common sense basis” and stated that the history as reported does not “negate” his opinion. The Arbitrator expressed the view that Dr Spittaler’s opinion and analysis was to be preferred to that of Dr Wallace. It was again observed by the Arbitrator that Dr Wallace did “not address the underlying problem at all as a possible element that could have been aggravated or exacerbated in the 2008 incident”.
The Arbitrator made a finding that Ms Teasdale was “not a good historian”. The Arbitrator appears to have accepted (at T44.22) that the relevant sequence of events was that:
“…the shoulder was the focus of pain until 2010. And it was only afterwards, after there was no improvement following the surgery in November 2009, when the neck was looked at further.”
The Arbitrator’s reasoning concerning the delayed report of symptoms appears to be encapsulated in his following statement (at T44.26):
“Ms Teasdale cannot be expected to distinguish where her symptoms are coming from, she is not medically trained. And it is possible that she has conflated the neck and shoulder issues and worked backwards from being told that the neck may be implicated in the source of the pain. So I think that has got to be taken into account that Ms Teasdale is a poor historian and that explains the various histories given about something she really did not know the source of.”
The Arbitrator reiterated his acceptance of the views of Dr Spittaler and proceeded to make a finding that Ms Teasdale suffered an injury being exacerbation of cervical spondylosis on 9 October 2008. A further finding was made that employment was a substantial contributing factor to the injury in terms of s 9A of the 1987 Act. The Arbitrator proceeded to make the Orders noted at [7] above.

DISPOSITION OF THE APPEAL

I have earlier observed (at [17]) that there is a lack of precision in the manner in which the appellant’s grounds of appeal have been presented. A further deficiency exists given that the submissions made in support of the appeal do not address the individual “grounds”, but rather constitute a narrative which sets out particular evidence, the Arbitrator’s reasoning, and assertions of error concerning his reasoning process.
In the circumstances it is proposed to identify those matters challenged and those arguments which have been advanced in support of suggested error.

Challenge to the finding of injury to the neck

Submissions put by the appellant summarise matters recorded by others following the work incident including the staff at the hospital and attending medical practitioners. That summary constitutes a restatement of matters as put before the Arbitrator. That material demonstrates that there was no contemporaneous record of complaint of injury to, or symptoms in, Ms Teasdale’s neck. The fact that no such complaint was made is not in dispute.
The appellant’s argument suggests that the state of the evidence establishes that Ms Teasdale did not have symptoms in her neck “at the time of the injurious incident, or for a substantial period thereafter.” It is reasonably clear that the appellant’s assertions do not concern suggested absence of corroboration, but rather that the evidence of the delayed appearance of symptoms, and an absence of any expert explanation for such delay, precluded the Arbitrator from finding as a fact that such injury was received in October 2008.
The Arbitrator’s reasoning concerning the relevance of the delayed reporting of symptoms was as follows (at T42–43):
“Ms Teasdale herself says the neck problem came on some time after the linen bag incident. And that the neck became worse after the operation by Dr Osborne in November 2009, which is consistent with the complaint and investigations in late 2010, originated from Dr Tame. But it seems to me that Ms Teasdale had believed that the neck pain was radiating from the shoulder. That is not surprising, because it is a serious incident, a serious injury to the shoulder, involving major surgery, which was unsuccessful. And it is in the Commission’s experience, when multiple body parts are injured, the more serious will get the attention and lesser problems can be masked for some time, especially when they are adjacent body parts, such as the shoulder and neck. Certainly the evidence is that the neck was asymptomatic prior to the linen incident.”
The Arbitrator proceeded to summarise the evidence of Dr Wallace and that of Dr Spittaler. The Arbitrator’s assessment of the evidence of Dr Wallace included the following observations (at T43):
“Dr Wallace, in his report of 13 November 2013 he [sic] talks about the complaints of a neck problem. He does not discuss the cervical investigations, the MRI. And although he does note it in the 2011 report, he does not discuss the underlying spondylosis and disc bulges and the possibility of the aggravation of that. He does not say what the symptoms are from. He just says Ms Teasdale cannot recall when they came on, those symptoms.”
With respect to Dr Spittaler’s evidence, the Arbitrator (at T43) acknowledged the appellant’s argument that, by reason of the incorrect history recorded, Dr Spittaler’s evidence should be given no weight. The Arbitrator’s evaluation of Dr Spittaler’s evidence was as follows (at T44):
“… Dr Spittaler finds a restriction on the right side of the neck, on examination. Notes the MRI and concludes that there is exacerbation of underlying spondylosis, as the cause of the symptoms. I do not think the history negates that, when his diagnosis seems perfectly reasonable on a common sense basis. And there is a fair climate for accepting his opinion. I prefer his analysis to that of Dr Wallace, who does not address the underlying problem at all as a possible element that could have been aggravated or exacerbated in the 2008 incident”.
The appellant’s arguments concerning the Arbitrator’s finding as to injury raise the following questions:
(a) Has the Arbitrator erred in law in accepting the evidence of Dr Spittaler?
(b) Has the Arbitrator erred in law in failing to abide the principles that evidence should be logical and probative?
The two questions raised immediately above are necessarily inter-related. Having regard to the reasoning of McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421 (Edmonds) (between [127] and [140]) there is in the present matter a need to determine whether Dr Spittaler’s evidence was “logical and probative” and whether his opinion as to the aggravation of spondylosis was a mere “ipse dixit”, in the sense that expression was used by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (at [59]) (Makita). A consideration of these matters will permit a conclusion as to whether or not Dr Spittaler’s opinion, adopting the words of McColl JA in Edmonds, “offered no evidentiary support for the Arbitrator’s conclusion [as to injury]” (at [139]).
The criticism of Dr Spittaler’s evidence is founded upon the assertion that he had recorded and relied upon an incorrect history. That error consists of a notation made by Dr Spittaler that Ms Teasdale, at the time of the work incident, “experienced immediate right shoulder pain which radiated into the neck.”
Upon an acceptance that the history as recorded is incorrect, the Arbitrator was required to determine whether any weight should be ascribed to the opinion expressed. I have reached the view that the Arbitrator did not err in failing to reject the evidence of Dr Spittaler. The erroneous history, having regard to the evidence before the Arbitrator as a whole, did not have the consequence, as seems to be argued, that the evidence of Dr Spittaler was of no evidentiary value at all.
Dr Spittaler’s opinion was founded upon matters other than the history, including correct detail concerning the significant shoulder injury, and the history of its treatment, his physical examination of Ms Teasdale which revealed restriction of movement of the neck to the right and the recorded increase in neck pain, as well as the findings of the MRI conducted in November 2010. The evidence accepted by the Arbitrator included the diagnosis expressed in the report of 26 October 2012, which was as follows:
“I believe there are two diagnoses in play here. Firstly, I think it is likely there is a right shoulder injury although this is outside my area of expertise. Secondly, I believe there is a cervical injury to explain the neck pain. The patient, in essence, has an exacerbation of cervical spondylosis. Finally, there probably is an element of complex regional pain syndrome in the right upper limb to explain the ongoing symptoms but the arm pain is definitely not due to nerve root compression”.
Notwithstanding the error concerning history recorded by Dr Spittaler, I am of the view that the manner in which his opinion was formed demonstrated a logical analysis of the material which was available to him.
My conclusions as to the probative and logical character of the evidence of Dr Spittaler have the consequence that the appellant’s suggestion of error of law must be rejected. It cannot be said that there was no evidence before the Arbitrator to permit his conclusion concerning injury to the neck.
Having addressed the suggested error of law, the appellant’s assertion of factual error concerning the findings of injury and that the requirements of s 9A had been met, must now be considered. Such factual error will be made out in those circumstances addressed by Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that is where:
“… material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
With respect to the finding of injury it cannot be said that the Arbitrator had overlooked the apparent error recorded by Dr Spittaler in the history, nor the appellant’s submission concerning that matter (see Reasons at T43).
The appellant argues that “the absence of contemporaneous symptoms is fatal to [Ms Teasdale’s] claim”. It is fundamental to the appellant’s argument that the proper inference to draw from the absence of complaint was that no symptoms were experienced. Failure to draw that inference appears to be the nub of the appellant’s complaint.
Whilst it must be said that the reasons as expressed by the Arbitrator are somewhat terse, it is clear that the inference drawn by him, from the evidence as a whole, was that Ms Teasdale, having received significant injury to her shoulder, failed, reasonably in the Arbitrator’s view, to recognise the separate and distinct injury to the neck until a time after the shoulder surgery conducted by Dr Osborne. Such inference was open to be drawn by the Arbitrator, and the appellant’s assertion that the “absence of symptoms” was fatal to the claim, must be rejected. No factual error as to the occurrence of injury is made out.

Challenge to the Arbitrator’s finding concerning s 9A of the 1987 Act

As noted at [40], the Arbitrator had accepted that Ms Teasdale “was asymptomatic prior to [the work incident]”. Her work involved the physical demands of house- keeping which she performed until that incident. Having accepted that the evidence established that Ms Teasdale had suffered an exacerbation of a degenerative condition in her cervical spine as a result of the blow to her shoulder and arm and those symptoms continued thereafter, it was, in my view, open to the Arbitrator to conclude that employment was a substantial contributing factor to the exacerbation. No error is demonstrated.
The appellant’s challenge to the Arbitrator’s findings is rejected and the appeal fails. Appropriate orders appear below.

DECISION

The findings made by the Arbitrator and the orders made, as found in Certificate of Determination dated 21 August 2014, are confirmed.

COSTS

In her Notice of Opposition to the Appeal, Ms Teasdale seeks an order in respect of her costs of the appeal. The appellant has not addressed the question of costs should the appeal fail.
The subject of costs is governed by the provisions of Div 3 of Pt 8 of the 1998 Act. Section 341 of the 1998 Act in its original terms granted the Commission very broad power to award costs in respect of proceedings conducted before it. That section was amended by the Workers Compensation Legislation Amendment Act 2012. Having regard to the relevant transitional provisions, and the passage of subsequent regulations, Div 3 of Pt 8 of the 1998 Act continues to apply to costs in relation to a claim for compensation made before 1 October 2012 if proceedings of the claim are commenced in the Commission before 31 March 2013.
In the present matter, Ms Teasdale commenced proceedings on 3 April 2014. Given that circumstance, I am of the view that s 341, as amended, has application to these proceedings. In such circumstances the Commission has no power to make any order as to costs of the appeal.
No order as to costs of the appeal.

Kevin O'Grady
Deputy President

25 November 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE