Daley v State of New South Wales in respect of Department of Attorney General and Justice - [2017] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Daley v State of New South Wales in respect of Department of Attorney General and Justice [2017] NSWWCCPD 4
APPELLANT:	Michael Paul Daley
RESPONDENT:	State of New South Wales in respect of Department of Attorney General and Justice
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-759/16
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	1 September 2016
DATE OF APPEAL DECISION:	9 March 2017
SUBJECT MATTER OF DECISION:	Whether a finding that the appellant did not injure his cervical spine in a fall at work which was accepted as having occurred and as having caused injury to his left shoulder was correct
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Slater and Gordon
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 1 September 2016 is confirmed.

BACKGROUND

By Application to Resolve a Dispute filed on 16 February 2016 the appellant claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 for an alleged 13 per cent whole person impairment in respect of the left upper extremity (shoulder), cervical spine and scarring. This disability was said to result from either or both of two injuries alleged to have occurred in the course of the appellant’s employment with the respondent. The first injury was on 18 February 2011 affecting his left shoulder and neck when the appellant “… apprehended an offender and fell heavily on to the ground”. The second injury was on 15 July 2013 affecting his left shoulder when he “… was attempting to intervene in a fight between two detainees when one of them pushed past him, pushing on his left forearm”.
The claim in respect of 13 per cent whole person impairment was based upon an assessment by a surgeon, Dr A G Hopcroft.
The respondent denied liability for the claim and the issues which arose for determination on the strength of that denial were whether the appellant injured his cervical spine on either occasion or both of them. The respondent conceded injury to the shoulder.
In addition, the evidence available to the respondent from an orthopaedic surgeon, Dr John Bosanquet put the appellant’s permanent impairment at 2 per cent, below the 10 per cent threshold required to be satisfied for the recovery of lump sum compensation in any event. It was agreed between the parties that if there had been a neck injury the determination of the level of permanent impairment should be referred to an Approved Medical Specialist (AMS). It was common ground that if no neck injury were found the claim for lump sum compensation failed.
The question whether the appellant suffered a neck injury effectively reduced itself to whether such an injury was sustained in the first incident on 18 February 2011. This emerged in an early exchange between counsel for the appellant and the Arbitrator, at the arbitration hearing after counsel for the respondent had indicated what the nature of the contest would be: see the transcript of the arbitration hearing, page 4.
Before the Arbitrator the appellant relied, amongst other evidence, upon his evidentiary statement of 9 February 2016 and a number of medical reports and medical records.
In his evidentiary statement, the appellant described his injury of 18 February 2011, which involved chasing and tackling an offender, as follows:
“… after tackling him, as I fell to the ground with the offender in my arms, I fell on my left elbow and left shoulder. As I landed, I hit my left shoulder on the ground, my face hit the ground and I jarred my neck. I had dirt on the left hand side of my face, laceration on my left elbow and left wrist.
I felt immediate pain in my left shoulder, which was my main focus initially. Once I came to my senses I remember another person saying ‘we’ve got him, we’ve got him’. My left shoulder was injured and I remember I was moving my waist side to side in order to talk to people because I could not turn my neck. I had a stiff neck and once I realised what had happened and the adrenalin wore off I said ‘this is not good’. I had numbness in my left arm, down in to my hand.
I had neck stiffness and a sore neck all day at the time of injury and thought that it was as a result of my left shoulder. At the time, my main focus was my left shoulder pain and I did not realise that I had a neck injury.
…”
The appellant’s statement went on to record that he saw his general practitioner at the Western Plains Medical Centre that same day after leaving work and made a claim for workers compensation which was accepted. The claim extended to periods of total and partial incapacity as well as medical expenses. He returned to pre-injury duties in October 2011 and performed them until his second injury on 15 July 2013.
In relation to the second injury, the appellant’s evidentiary statement mentioned only pain in his left shoulder. It went on to say that the day after the second injury he consulted his general practitioner, Dr B Begum, at the Western Plains Medical Centre.
I think it is fair to say of the appellant’s evidentiary statement in respect of his first injury that it is ambiguous to a degree. The ambiguity is as to whether he is asserting that he was conscious of some neck trauma and symptoms at the time of the injury and immediately following it which were minor compared with his shoulder symptoms and that his focus was his shoulder, or whether he is asserting that he was only conscious of problems with his shoulder and became aware of neck symptoms later as the shoulder problems diminished.
The abovementioned medical material relied upon by the appellant included two initial reports of Dr Hopcroft. In the first of them, dated 26 February 2015 the history of trauma in the injury of 18 February 2011 is to the left elbow, shoulder and wrist together with numbness in the left arm from that time also affecting the left third, fourth and fifth fingers. Upon examination by Dr Hopcroft the appellant complained of left sided neck pain and paraesthesia radiating down to his left fourth and fifth fingers. These symptoms are recorded under the heading “Current Status” at the head of page 3 of the doctor’s first report.
Dr Hopcroft concluded that report with the following paragraph:
“I believe his associated neck injury arising from the work related accident of the 18 February 2011 will contribute further to his whole person impairment and a definitive and sum total whole person impairment will be calculated once the MRI scan of his cervical spine has been obtained.”
I think it is fair to say that there is no earlier passage in the doctor’s report indicating that the appellant’s neck symptoms were caused by the first injury, nor indicating directly or by inference any causal link between the two. The concluding paragraph of the report just extracted seems to assume such a connection. The matter is not clarified or elaborated in
Dr Hopcroft’s second report of 14 September 2015 written after the MRI scan became available. That report is confined to a discussion of the scan and its implications for the appellant’s treatment together with an assessment of whole person impairment.
This state of affairs, which clearly constituted at least a potential difficulty for the appellant, was addressed after the matter was brought to a head by an opinion expressed by
Dr Bosanquet (to which I shall come when adding a summary of the respondent’s case to this Background) denying any causal connection between the fall and a neck injury.
The Arbitrator admitted as a late document a supplementary report obtained from Dr Hopcroft which, in answer to Dr Bosanquet, contained the following:
“Once more I reviewed the radiological findings of this patient, including the x-ray of his cervical spine and the MRI scan of his cervical spine performed on 15 July 2015, and would particularly note that:
‘C5/6: Disc protrusion impinging on the cord. No spondylotic myelopathy. Mild canal stenosis.
C6/7: Disc protrusion with likely impingement of the left C7 nerve in its neuroforamen.’
With regard to those objective findings it is important to recall that from the time of this patient’s first injury on 18 February 2011 he identifies ‘having some numbness in his (left) arm from that time with the numbness affecting the left third fourth and fifth digits’. That clear dermatomal distribution of radicular symptoms cannot be explained in any way, either anatomically or by way of the trauma the patient suffered to his left shoulder, and it should have raised alarm bells for his treating doctors that they had a probable second significant pathology to deal with. It is totally understandable in the clinical sphere that the problem he had with his left shoulder dictated the early intervention and treatment programme.
While this patient clearly had pre-existent but asymptomatic cervical spondylitic changes, I am firmly of the opinion, and can offer you no other explanation for this patient’s left arm symptoms, than that his ongoing neurological complaints are more likely than not caused by his cervical pathology, which was aggravated to the point of causing the discal changes which dermatomally represent the symptoms he has had since his first injury.
Mr Daley’s current cervical pathology related to those two discal changes is more likely than not caused by his work-related injury on 18 February 2011, and has been superimposed on a pre-existent, asymptomatic, mildly spondylitic problem of his cervical spine.
I therefore cannot agree with Dr Bosanquet’s opinion in his report of 23 June 2016 that the cervical pathology is the result of ‘constitutional changes’. The patient did not have radiculopathy symptoms into his left arm in the dermatomally congruent distribution of his discal disruption, and the only explanation for his ongoing and significant neurological deficit signs and symptoms in his left arm is that the injury of 18 February 2011, being violent and directed to both his left shoulder and neck, has in fact caused the discal changes at the C5/6 and C6/7 levels.
There is nothing in the patient’s past medical history or hobbies and pastimes that could have caused his focal disc protrusions, and were his neck changes to be classified as constitutional it fails to explain why the disc disruption would only be at the C5/6 and C6/7 levels, as constitutional changes affect the spine uniformly, and that is certainly not the case in this patient’s radiology.
I therefore cannot demur from the opinions expressed in my reports to you of 26 February 2015 and 14 September 2015.”

The appellant as abovementioned adduced other medical material in evidence. This included:
·        the clinical notes and records of the Western Plains Medical Centre, including referral letters to Dr Gareth Thomas, a sports injury/medicine specialist;
·        referral letters from Dr Thomas to Dr Allan Young, a visiting orthopaedic surgeon who saw the appellant at Dubbo Private Hospital and later performed arthroscopic surgery on his left shoulder at North Shore Private Hospital;
·        the reports of a physiotherapist, Ms Kylie Barden;
·        the reports of Dr Young to Dr Thomas, and
·        a referral letter in September 2013 from a Dubbo General Practitioner, Dr Begum, whom the appellant clearly consulted, rather than the Western Plains Medical Centre doctors, following the second injury.
So far as I can see there is no mention of neck symptoms in any of these records with the exception of what appears to be an x-ray report of 9 January 2007, well before either of the injuries relied upon, from Dr Douglas to Dr Danishyar of the Western Plains Medical Centre. There is also a document from Primary Diagnostics Radiology Services of the same address as Western Plains Medical Centre which seems to be dated the previous day, 8 January 2007 and which records the following “Clinical Details”:
“08 Jan 2007
L shoulder injury on 08/11/06
hit R shoulder on wall
stated work related
did not see doctor
L shoulder pain since Had L shoulder injury
pins and needles around R shoulder
on shoulder examination
shoulder movement normal
no swwlling [sic], no tenderness …”
Nor can I see any mention, especially over a fairly extensive period from the time of the first relevant consultation in February 2011, of any complaints such as numbness or paraesthesia affecting the appellant’s left arm and any fingers of his left hand.
Also before the Arbitrator, apparently as part of the appellant’s case, was the report of
Dr Bosanquet to the insurer dated 3 December 2015. The history of injury set out on the second page of that report is confined to the left shoulder. So far as the appellant’s neck is concerned, on the third page of the report, under the heading “Current Symptoms” the following brief paragraph appears:
“With regard to his cervical spine, he was getting some headaches and some pain in the back of his neck. His neck tends to click a couple of times a day, but he feels that he has good movement.”
The investigations listed on page 4 of Dr Bosanquet’s report include the conclusions in x-ray and MRI scan reports of 15 July 2015 in relation to the appellant’s cervical spine. The opinions expressed by Dr Bosanquet include the following, on page 5 of the report:
“3.Findings on examination, diagnosis, and whether the condition is consistent with the history given.
The diagnoses are:
·Rotator cuff tendinopathy left shoulder
·Cervical spondylosis
The injury is consistent with the history given.”
I think it is fair to say that the import of the answer to this question is far from clear. Neither type of medical pathology mentioned would immediately strike an experienced reader of medical reports as an “injury”, and so far as the appellant’s cervical area is concerned, there is no history given beyond that of current symptoms recorded on the day of the examination.
From the respondent’s Reply to the Application to Resolve a Dispute it appears that both Dr Bosanquet’s reports of 3 December 2015 were put into evidence together with most of the other medical material adduced by the appellant, namely the clinical notes of the Western Plains Medical Centre and records held within them such as the reports of Dr Young. However among the documents relied upon by the respondent are a WorkCover medical certificate dated 21 February 2011 from Dr Raji of the Western Plains Medical Centre which refers only to the appellant’s left shoulder and an ultrasound report from Dr Cohen to Dr Raji of 25 February 2011 which is also confined to his left shoulder. Finally there is an MRI report of 5 April 2011 from Orana Radiology to Dr Thomas, also confined to the appellant’s left shoulder.
Plainly by reason of the absence of recorded complaints of neck symptoms the respondent obtained a supplementary report from Dr Bosanquet which the Arbitrator admitted as a late document. As abovementioned, it was this report, dated 23 June 2016, which was the stimulus for the supplementary report from Dr Hopcroft dated 10 August 2016. A specific question was put to the doctor, picking up the mention of symptoms in the appellant’s left hand in his abovementioned evidentiary statement (although it should be noted that a fuller and more accurate description of what there appears would have included symptoms not just in the left hand but down his left arm). The question and answer, which appear on the second page of Dr Bosanquet’s report, are as follows:
“In view of the above, we would be obliged to receive your further report addressing whether the worker’s alleged paraesthesia in his left hand could be the result of the work related shoulder injury and not the product of any neck condition.
It is my opinion that the paraesthesia that Mr Daley is experiencing in his left hand is unlikely to be related to his shoulder condition. Paraesthesia experienced in the hand from a shoulder condition usually affects the C6 distribution, whereas Mr Daley’s seems to be more widespread. He does have changes in his cervical spine MRI dated 15 July 2015 with C6/7 disc protrusion and likely impingement of the left C7 nerve in its foramen. This is more likely to be producing the paraesthesia.
The question then, is whether Mr Daley has actually injured his neck in the incident on 18 February 2011.
It is my opinion that there was no injury to Mr Daley’s neck on that date. The symptoms that he complains of, i.e. the paraesthesia in his left arm and hand, are incidental to the left shoulder injury and are the result of constitutional changes in his cervical spine.”
A non-medical document adduced by the respondent is a Notification of Injury/Illness form not signed by the appellant or anyone else, but apparently part of the records of either or both the respondent or its insurer. It records an injury at 3.20 pm on 18 February 2011 described as “abrassions [sic] to left elbow” happening when the appellant was “restaining [sic] young person and fell to ground”. At the foot of the form under the heading “Employer Comments” the final box contains the following:
“Comments: This was an existing claim which [the appellant] previously had and is claiming at night the shoulder injury in [sic] niggling”.

THE ARBITRAL PROCEEDINGS

The proceedings came before Arbitrator Batchelor on 18 August 2016 for conciliation and if necessary arbitration at Dubbo. Conciliation was unsuccessful and the hearing of the arbitration proceeded on that day. It was conducted without oral evidence and upon the documentary material adduced by each party.
At the conclusion of the hearing, the learned Arbitrator reserved his decision. It was given a short time later on 1 September 2016 with a supporting statement of reasons occupying almost ten pages. He made an award for the respondent in respect of injury to the cervical spine on 18 February 2011.

THE ARBITRATOR’S DECISION

The learned Arbitrator reviewed the documentary evidence, in particular the medical evidence, more comprehensively than I have done under the Background section of these reasons, and summarised the oral submissions of counsel for the parties before him. He then went on in paras [46]-[57] of his reasons to deal with the real issue in the case, which he introduced with the heading above para [46] “Did the Applicant Injure his Cervical Spine on 18 February 2011”.
In that passage of his reasons the learned Arbitrator continued his review and analysis of the documentary evidence with reference when necessary to the submissions. The fact that the appellant clearly had some neck trouble in early 2007 was noted in para [48].
The Arbitrator recognised that in the absence of contemporaneous complaints of neck pain, or possibly neck-related symptoms such as left arm and finger symptoms, at the relevant time recorded in the records of the appellant’s treating doctors, the ultimate question was the acceptability of the opinion of Dr Hopcroft, advanced in his final report admitted as a late document, connecting the appellant’s neck trouble with his first injury. He rejected the opinion of Dr Hopcroft and preferred the opinion of Dr Bosanquet in his third report also admitted as a late document. The relevant passage of the Arbitrator’s reasons is in paras [54]-[57], as follows:
“54.As noted by counsel for the respondent in submissions there is no complaint of neck pain or symptoms reported by Dr Gareth Thomas who treated Mr Daley from 29 April 2011 and referred him to Dr Young, nor in the records of Dr Young who carried out the surgery on the left shoulder on 18 July 2011.
55.The opinion of Dr Hopcroft in my view is based on the proposition that while the applicant had pre-existing but asymptomatic cervical spondylitic changes, because he experienced some numbness in his left arm from the time of injury (emphasis added) with numbness affecting the left third, fourth and fifth digits, such history is not supported by reference to the contemporaneous medical records to which I have referred. Indeed, having regard to the investigation of the applicant’s cervical spine in January 2007 it could not be said that his cervical spine was completely asymptomatic prior to February 2011.
56.In my view the applicant has not discharged the onus of proof on him to show that, on 18 February 2011 he suffered injury by way of aggravation of a pre-existing degenerative condition in his cervical spine. Having regard to the medical evidence which I have reviewed in some detail, I think that the opinion of Dr Bosanquet should be accepted. In his report of 23 June 2016 he notes that paraesthesia experienced in the hand from a shoulder injury usually affects the C6 distribution, whereas Mr Daley’s (paraesthesia) seems to be more widespread. Dr Bosanquet does acknowledge the changes in the cervical spine as evidenced by the MRI of 15 July 2015 with C6/7 disc protrusion and likely impingement of the left C7 nerve in its foramen. He says that is more likely to be producing the paraesthesia. Dr Bosanquet then poses the question as to whether Mr Daley has actually injured his neck in the incident of 18 February 2011.
57.The doctor then gives the opinion that there was no injury to the applicant’s neck on 18 February 2011, and says that the symptoms complained of, that is, paraesthesia of the left arm and hand are incidental to the left shoulder injury and are the result of constitutional changes in the cervical spine. I think this opinion is to be accepted. The basis on which Dr Hopcroft expressed his opinion as to causation of the cervical spinal injury is not borne out by a detailed examination of the contemporaneous medical records and reports.”

I think it is fair to say that the essence of the decision is the concluding sentence in para [57]. On the strength of that conclusion the learned Arbitrator found against the appellant and entered an order for the respondent in respect of the claim of injury to the cervical spine.

THRESHOLD MATTERS

Neither party contends that the requirement as to time in s 352(4) and the provision in respect of monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not met in this case. There is no threshold matter to rule upon before considering whether to proceed to determine this appeal.

FRESH EVIDENCE

Neither party applied to adduce fresh evidence upon the appeal.

SUBMISSIONS ON APPEAL

Both parties submitted comprehensive written submissions.
The appellant advanced four grounds of appeal, but the fourth was an uncontroversial one, namely that if the appeal succeeded and the Arbitrator’s decision were reversed, the matter should be referred to an AMS for assessment of the appellant’s whole person impairment. The controversial grounds were the first three, and it is no disservice to the appellant’s submissions to say that they were all manifestations or expressions of the same proposition, namely that the learned Arbitrator erred in failing to accept the evidence of the appellant as to the nature of his first injury and failing to accept the opinion of Dr Hopcroft. I do not think it is necessary to refer in greater detail to the appellant’s submissions.
Likewise I do not think the comprehensive submissions of the respondent require detailed mention. It is sufficient to say that they supported the decision of the Arbitrator according to its terms. They focussed on the absence of contemporaneous medical records corroborating the appellant’s evidentiary statement, and emphasised that it was a matter for the learned Arbitrator to determine which material he preferred as being more reliable when making his findings which dictated his ultimate order.

DISCUSSION AND FINDINGS

The test of whether the decision of the learned Arbitrator involves appellable error, first involves identifying the nature of the decision, that is was it a decision of fact, law, discretion or more than one of those? Once the nature of the decision is ascertained, the test of error may vary, but in this instance I think there can be no doubt but that the decision that the appellant suffered no neck injury as alleged was a pure finding of fact. The test of error is therefore simply whether that finding was open upon the evidence or whether the evidence necessitated a contrary one: see per Roche DP in Raulston v Toll [2011] NSWWCCPD 25; 10 DDCR 156, paras [19]-[21]. The learned Deputy President correctly based his decision upon Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) (see also Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 at [71]).
By application of that test I have no hesitation in saying that the appeal should be dismissed and I so order for the following short reasons.
There is absolutely no mention that I have been able to pick up in the contemporaneous records of any complaint or mention of symptoms in the appellant’s left arm, hand or fingers. Therefore, whether or not Dr Hopcroft was correct in saying that such symptoms, no doubt as described in the appellant’s evidentiary statement, could only be referable to cervical injury or pathology, there is no contemporaneous evidentiary foundation for his opinion. Put another way, even accepting that trauma to the left shoulder and not directly to the neck in a fall could have produced consequential trauma (say by jolting or shaking up) to the cervical spine, in the absence of any symptoms consistent with that over a fairly lengthy period following the shoulder trauma, there is no foundation for the opinion proffered by Dr Hopcroft. Such a foundation could only exist if there were nothing to rob the appellant’s evidentiary statement of probative value, and the contrary contemporaneous records in my opinion not only do that but make it highly probable that there were no such symptoms. This in turn means that the decision of the Arbitrator was correct fundamentally in the terms in which it was expressed.
This conclusion is not to say that the appellant’s evidentiary statement should be regarded as in effect a deliberate rewriting of history. It can be accepted that he believed what he was saying in his evidentiary statement, possibly because over time he came to reconstruct the course of his neck symptoms. In this connection there is no doubt that he had some sort of neck complaints well before and well after the injuries upon which he relies. Moreover the very human tendency of witnesses and parties to litigation to reconstruct events, probably unconsciously, especially when years have elapsed and recollections would naturally fade, is well recognised: Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 and Watson v Foxman (1995) 49 NSWLR 315. Authority also recognises the weight of contemporaneous records against that very background, quintessentially as a test of what is reliable and what is not: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 per Lord Pearce at 431, right hand column, in the para introduced by “Credibility”.
The thrust of the appellant’s submissions was that the learned Arbitrator was in error in failing to accept the critical parts of his evidentiary statement which would have laid a foundation for the expert medical opinion of Dr Hopcroft. As just indicated, in the light of the totality of the evidence in this case there is no warrant for that criticism. Rather, much the better view is that the other evidence, namely the contemporaneous medical records, completely overbore the criticism.
What I have said above disposes of the appeal, but I think it is desirable to add that had the Arbitrator accepted the relevant parts of the appellant’s evidentiary statement two consequences would have followed. First, the respondent would have had available to it a powerful appeal point, powerful for the very reason that the present appeal is lacking in strength. Secondly, such a finding, if it survived scrutiny on appeal, would not necessarily have compelled an opposite finding in the present appellant’s favour. It seems that Drs Hopcroft and Bosanquet were propounding diametrically opposite expert medical opinions as to the anatomical significance of the appellant’s complaints as regards cervical injury or pathology. It was necessary for this conflict to be dealt with and I am not satisfied that it can be shown that the Arbitrator was wrong or that any error of the kind referred to in Whiteley Muir occurred. The Arbitrator’s findings were open on the evidence presented.
The appeal is dismissed.

ORDERS

The Arbitrator’s Certificate of Determination of 1 September 2016 is confirmed.

Larry King SC
Acting Deputy President

9 March 2017