Department of Ageing, Disability & Home Care v Fenwick

[2009] NSWWCCPD 104

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Department of Ageing, Disability & Home Care v Fenwick [2009] NSWWCCPD 104
APPELLANT:		Department of Ageing, Disability & Home Care
RESPONDENT:		Sandra Gai Fenwick
INSURER:		Allianz Australia Insurance Limited – TMF Workers Compensation
FILE NUMBER: ARBITRATOR:		A1-9566/08 Mr D Minus
DATE OF ARBITRATOR’S DECISION:		21 April 2009
DATE OF APPEAL DECISION:		24 August 2009
SUBJECT MATTER OF DECISION:		Medical reports – compliance with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
PRESIDENTIAL MEMBER:		Acting Deputy President Michael Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:		McLean Lawyers
Respondent:		Steve Masselos & Co
ORDERS MADE ON APPEAL:		1.   Paragraph [1] of the decision of the Arbitrator dated 21 April 2009 is revoked, and the following is substituted in its place:
“I remit this file to the Registrar to organise an assessment in accordance with the Workcover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist, of the degree of permanent impairment resulting from the Applicant’s injury on 5 June 2007 to her left upper extremity.”
The decision of the Arbitrator dated 21 April 2009 is otherwise confirmed.
2.  The appellant is to pay the respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 19 May 2009 the Department of Ageing, Disability & Home Care (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 April 2009.

1. The respondent to the Appeal is Sandra Gai Fenwick (‘the Respondent’).

1. The respondent is now 45 years of age. She was employed on a casual basis by the appellant, working about 24 hours per week, as a home care worker. She carried out domestic assistance, shopping and personal care, for clients that were usually elderly. She had worked for the appellant from about 1998 or 1999. She also worked casually, on variable hours, with the Strathearn Village, and Jo Bailey Quality Care. She is left handed.

1. On the morning of 5 June 2007 the respondent fell onto her hands and knees, outside the home of a client, after alighting from her car. The incident was reported to the client and a co-worker who was at the same address. In her statement dated 22 September 2008, the respondent says her hands were stinging and she was shaken, at the time of the incident. She worked on however. The incident report she signed, dated 7 June 2007, says “injury or illness” did not result from the incident.

1. Her statement says she started to feel pain down her left arm about two to three weeks after the incident. She says she saw Dr Collins Oku-Oleng on 24 July 2007. She was off work from 25 to 30 July 2007. She thereafter continued to work, although states she was taking painkillers. Dr Oku-Oleng closed his practice in Aberdeen. The respondent says she rested the arm during two weeks of annual leave in October 2007, without improvement. Other than these relatively short absences, the respondent worked on. She carried out restricted duties from about December 2007. She commenced consulting another GP, who had opened a practice in Aberdeen, Dr James. His report says he first saw the respondent on 9 November 2007. He recorded a history of the fall, with left arm and shoulder pain commencing about three weeks thereafter.

1. Dr James arranged an ultrasound of the left shoulder, which demonstrated a subscapularis tear. The respondent was referred for physiotherapy, and to an orthopaedic surgeon, Dr Hammond. She saw Dr Hammond on 16 April 2008. He recorded the history of left shoulder and arm pain commencing “some weeks” after the fall. He thought the findings on examination were indicative of “shoulder impingement”. He arranged an MRI of the left shoulder. He thought the MRI demonstrated “an intact tendon”, but “evidence of impingement”. He injected the shoulder. He discussed the possibility of operative decompression of the shoulder, but the respondent said “she did not have the resources to take time off for post-operative rest and care”. 

1. The respondent lodged a claim form dated 7 January 2008. She was examined at the appellant’s request on 31 January 2008, by Dr Wallace, an orthopaedic surgeon. The appellant’s insurer issued a section 74 notice dated 20 February 2008, declining the claim. It asserted the respondent’s employment was not a substantial contributing factor to her neck and left shoulder condition, which were due to pre-existing degenerative conditions. The decision relied on the report of Dr Wallace dated 11 February 2008. The respondent asked for this decision to be reviewed, and the appellant’s insurer issued a second section 74 notice, dated 17 July 2008. That document denies the occurrence of injury, denies section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) is satisfied, and denies incapacity and the need for medical treatment resulted from the injury. The appellant relied upon Dr Wallace’s reports. Dr Wallace, in his report dated 11 February 2008, concluded that the “mechanism of injury”, and the delay in onset of shoulder symptoms, led to the conclusion the left shoulder problem did not result from the fall on 5 June 2007. He described her symptoms as being “due to pre-existing degenerative conditions at her neck and left shoulder”.

1. The respondent lodged an Application to Resolve a Dispute on 28 November 2008. It pleaded the incident of 5 June 2007, and described the injury as ”Left arm/ shoulder”. It made a claim for weekly compensation from 8 December 2007 on an ongoing basis, medical and related expenses, and lump sums in respect of 10 per cent whole person impairment (left upper extremity), and pain and suffering.

1. An arbitration hearing was held on 17 March 2009. Both parties were represented by counsel. There was no oral evidence called. The Arbitrator heard submissions, and reserved his decision. It was agreed that, if the respondent succeeded, her weekly entitlement was $140.00 per week from 8 December 2007 to 14 November 2008. There was no serious dispute that the incident of 5 June 2007 had occurred. The real issue between the parties was whether the left arm and shoulder symptoms resulted from the incident.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’ dated 21 April 2009 records the Arbitrator’s orders as follows:

“1. There is an award for the Applicant in respect of her claim for permanent impairment as a result of a fall she sustained in the course of her work duties, on 5 June 2007. I remit this file for the Registrar to organise an assessment in accord with the Workcover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist, of the degree of permanent impairment, resulting from the Applicant’s injury to her left upper extremity.

2. There is an award for the Applicant in relation to her claim for medical expenses and the Respondent is to pay the Applicant’s reasonable medical expenses, pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and HIC notice of charge.

3. There is an award for the Applicant in respect of her claim for weekly compensation. The Respondent is to pay the Applicant, pursuant to s 40 of the Workers Compensation Act 1987, compensation at the rate of $140.00 per week from 8 December 2007 to 14 November 2008 with credit for any payments of compensation it has made in respect of this period.

4. The Respondent is to pay the Applicant’s costs as agreed or assessed. 

5. I certify that this was a complex matter and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of both the Applicant’s and the Respondent’s costs that a percentage increase of 10% be applied.”

1. The Certificate was accompanied by five pages of reasons (‘the reasons’).

ISSUES IN DISPUTE

1. The Arbitrator preferred the views of Drs Patrick and Hammond, and perhaps Dr James, who supported the respondent’s case on causation, to the view of Dr Wallace, who did not. The grounds of appeal challenge the basis on which these doctors came to be accepted by the Arbitrator, and also the basis on which Dr Wallace’s views were rejected. The issues raised in the appeal are:

(i)   Did the Arbitrator err in accepting the opinion of Dr Patrick, having regard to an alleged defect in Dr Patrick’s understanding of the history regarding onset of symptoms?

(ii)    Did the Arbitrator err in accepting the opinion of Dr James, given it was proffered without explanation?

(iii)  Did the Arbitrator err in accepting the opinion of Dr Hammond, when it did not adequately explain the delayed onset of symptoms?

(iv)   Did the Arbitrator err in rejecting the opinion of Dr Wallace? It is submitted his treatment of Dr Wallace’s views involved inverting the onus of proof, and that he failed to properly deal with the explanations proffered by Dr Wallace for his conclusion regarding causation.

(v)     Overall, it is submitted the medical evidence, when properly analysed, was such that the respondent failed to discharge her onus of proof on the causation issue.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. The quantum of weekly compensation awarded exceeds the sum of $5,000.00 prescribed in section 352(2) of the 1998 Act, and the whole sum awarded is appealed against. The respondent properly concedes the threshold issues in section 352 are satisfied. I grant leave to appeal.

DISCUSSION AND FINDINGS

Dr Patrick’s Reports Dated 9 and 10 July 2008

1. The Arbitrator set out passages from the various medical reports at [8] to [15] of his reasons. His actual analysis of the medical evidence is at [17] to [20] of the reasons. The reason he gave for preferring the views of Drs Hammond and Patrick was that their “diagnoses were consistent with a finding of subacromial impingement which was identified on the MRI.”. The Arbitrator also noted the respondent’s claim (which was not contradicted) that she had experienced no problems with the left shoulder prior to the fall. The Arbitrator found the respondent’s “delay in seeing a doctor for seven weeks until 24 July 2007” was “the result of (her) trying stoically to continue her work duties”.

1. The appellant attacks the weight to be given to Dr Patrick’s opinion, on the basis “Dr Patrick appears to have been informed that the worker did have pain in her left shoulder immediately following the incident”. It is submitted Dr Patrick “does not express any view at all on causation having regard to the correct history of an absence of left shoulder pain for approximately three weeks”.

1. Dr Patrick’s history and opinion are essentially set out in his report dated 9 July 2008. There is a shorter report dated 10 July 2008 (accompanied by a worksheet) that contains his view on the respondent’s level of whole person impairment. Dr Patrick’s recorded history did not specifically deal with when the respondent first developed symptoms in the left arm or shoulder. It described “quite severe jarring” to the left shoulder at the time of the fall. It described the respondent completing the initial job on 5 June 2007 “with some difficulty”, and completing “her work that day, in some degree of pain”. Under the heading “Subsequent Progress”, it is recorded “She did not seek medical treatment immediately, but symptoms were persisting”. It then referred to the consultation with Dr Oku-Oleng. Against this background, Dr Patrick concluded:

“She has fallen on to her hands and knees, sustaining quite severe jarring to her left shoulder. I believe it is likely that she has developed some significant post-traumatic subacromial bursitis/impingement, with likely partial tears of supraspinatus and subscapularis tendons of rotator cuff.”

1. Whilst the above passage does not specifically say the diagnosed condition results from the fall, it implies it. Later in the report, Dr Patrick describes the respondent’s “employment/work” as “a substantial contributing factor to her injuries sustained on 5 June 2007”. The short report dated 10 July 2008 states the whole of the 10 per cent whole person impairment Dr Patrick assessed resulted “entirely from injuries sustained on 5 June 2007”.

1. The recorded history was vague as regards what symptoms the respondent suffered from initially, and when the left arm and shoulder symptoms commenced. It was not that Dr Patrick necessarily proceeded on the basis of a history that was false, or that did not correlate with the other evidence. Rather, it is unclear what history he assumed, regarding onset of left upper limb symptoms, in reaching his conclusion on the causation question.

1. In Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 the High Court, in a joint judgment said:

“9. It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson[1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.

10. As Wigmore states (at pp.941-942, Chadbourn rev.), "the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect.”

1. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) Heydon JA at [64] said:

“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”

1. The issue of whether there is sufficient correlation between the proven facts, and the assumptions on which an expert opinion is based, to permit the opinion weight, has been approached on the basis of whether the proven facts “furnished a fair climate for the consideration of the views of the expert witnesses”: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509F-G. In the same judgment Samuels JA at 510B said:

“Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish…”

1. These principles were applied by Armitage J in Brady v Commissioner of Police (2003) 25 NSWCCR 58 at [61] to [62]. They have been applied in a number of Presidential decisions in the Commission (see for example Stanton v Shoalhaven City Council [2008] NSWWCCPD 58, Department of Corrective Services v Bryce [2008] NSWWCCPD 116, Gorge v Paramount Global Protection Pty Ltd [2009] NSWWCCPD 67).

1. The Arbitrator had recognised, at [16] of his reasons, that the “sole issue is whether the impairment of the Applicant’s left shoulder was due to the fall she sustained on 5/6/2007, or a degenerative condition, unconnected with the Applicant’s incident at work as recorded in her Indent [sic] report.” There was no particular lay issue in the case; the respondent had candidly admitted that she started to experience symptoms down her left arm about two to three weeks after the incident. The issue was essentially a medical contest. Dr Wallace, in the respondent’s case, thought two factors were significant, in rejecting the causal link. One was the mechanism of injury; the second was the onset of symptoms.

1. The history recorded by Dr Patrick did not, in my view, provide a ‘fair climate’ for the consideration of the doctor’s opinion on causation. Nowhere does it indicate the time of onset of left arm or shoulder symptoms, assumed by Dr Patrick, in expressing his view on causation. Without this, given the nature of the medical issue, his opinion on this issue was deprived of any weight. As was observed by Heydon JA in Makita at [59]:

“If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.”

1. It follows that I accept the appellant’s argument in respect of the reports of Dr Patrick. The deficiencies of history, as recorded in the report dated 9 July 2008, deprive them of any weight, on the causation issue.

Dr James’ Report Dated 9 June 2008

1. The appellant submits the Arbitrator “also relied upon the worker’s GP, Dr James as supporting (sic) for his finding of a causal connection between the worker’s fall on 5 June 2007 and the condition of her left shoulder”. It is submitted the doctor’s finding on this issue is expressed as follows:

“I believe it is most likely that my findings on examination were directly connected to her fall...”

1. It should be noted there is the following additional passage on the topic, in the concluding paragraph of his report:

“I believe that the injuries complained of are substantially caused by Sandra’s fall on 5/6/08 (sic).”

1. It is unclear the Arbitrator actually placed reliance on the opinion of Dr James, in reaching his conclusion on causation. The reasons refer to Dr James’ opinion, but at [18] the Arbitrator specifically says he prefers the opinions of Drs Hammond and Patrick. He does not specifically accept the opinion of Dr James.

1. The appellant submits the expressions of opinion on causation by Dr James are offered without explanation, and do not “meet the test for an expert medical opinion”. Reference is made to Makita, Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271 (‘Hevi Lift’), and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, (2007) 4 DDCR 421 (‘Edmonds’).

1. Dr James’ opinion does not suffer from the same vice as Dr Patrick’s. Dr James clearly records a history of symptoms commencing “about 3 weeks later”. He forms his view on causation, supportive of the respondent’s position, with expressed knowledge of the delay in onset of symptoms. Rather the appellant’s argument is that Dr James’ opinion on the point represented a bare ipse dixit, to use the language employed by McColl JA in Edmonds. There is validity in this argument. Dr James does refer to the results of an ultrasound he arranged, which showed a subscapularis tear. However his report does not explain the basis for the opinion on causation. McColl JA in Hevi Lift (Mason P and Beazley JA agreeing) at [84] said:

“It is not, in my view, necessary to consider for present purposes whether Heydon JA’s judgment in Makita set too high a standard for the admissibility of expert opinion evidence. The critical parts of Doctor Selby Brown and Doctor Khoo’s reports fell short, even by pre-Makita standards, of the standard required for admissibility. It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it: see Cross on Evidence at [29065]; R v Jenkins; Ex parte Morrison (No 2) [1949] VLR 277 at 303; R v Hally [1962] Qd R 214; Steffen v Ruban [1966] 2 NSWR 622; Perry v R (1990) 49 A Crim R 243 and, of course, the principal authorities examined by Heydon JA in Makita (at 729 - 741 [59] - [82]). Nothing in Brown v Iontask Pty Ltd should be understood as warranting departure from those principles.”

1. A similar approach was applied by the Court of Appeal in Edmonds.

1. I am of the view the appellant’s argument regarding this difficulty in Dr James’ opinion on the causation issue is well founded. It is, however, unclear the extent to which Dr James’ opinion on this issue was a factor in the Arbitrator’s decision. The Arbitrator did not specifically accept it, or overtly rely on it.

Dr Hammond’s Report Dated 27 November 2008

1. The appellant concedes that Dr Hammond, the treating orthopaedic surgeon, had a history of the delay in onset of symptoms, and explained the mechanism of injury causing impingement. However the appellant attacks the opinion of Dr Hammond on a basis similar to that of Dr James, that it does not explain the delay in onset of symptoms, and accordingly is of no probative value. The same authorities are relied upon as were argued to apply in respect of Dr James’ opinion.

1. Dr Hammond recorded a careful history, including that the mechanism of injury involved slipping and landing “on both outstretched hands”. He recorded the development of pain “some weeks later”, “around the left upper arm and shoulder”. He recorded the clinical difficulties the respondent suffered thereafter, in use of the left arm. He noted the ultrasound arranged by Dr James had “shown a small tear in one of the tendons”. He noted “She tells me that she was later seen by a doctor for the Workers Compensation Insurance Company. He apparently declared that the ongoing shoulder pain was due to degenerative change in the spine, and was nothing to do with the fall.” This is apparently a reference to Dr Wallace. Dr Hammond described his findings on examination as being “indicative of shoulder impingement”.

1. Dr Hammond’s opinion on causation was as follows:

“When the findings on examination are translated in view of her history of falling and taking her full weight on her arms, as well as the fact the pain took some time to appear after the initial injury, I felt that her shoulder symptoms were those of impingement, that is that the tendons get trapped between two bones, causing pain and inflammation. They were certainly not consistent with arthritis of the neck”

And:

“The cause of injury was due to slipping on wet grass. This occurred in the course of her work, and I would leave it to your good self to argue as to whether that is a ‘condition of employment’.”

1. The above is not a bare ipse dixit. Dr Hammond outlined the factors he thought relevant  (the mechanism of injury, and the onset of symptoms). Previously in his report he had outlined the findings on examination he regarded as consistent with a diagnosis of impingement. He set out in lay terms what is involved in ‘impingement’. This amounted to an explanation of his opinion. It did not have to be accepted, but in my view it conformed adequately with what is required of an expert opinion, having regard to the authorities relied upon by the appellant. He also considered, succinctly, what he had been informed was the opinion of the “doctor for the Workers Compensation Insurance Company”, noting the findings on examination were not, in Dr Hammond’s view, “consistent with arthritis of the neck”. Dr Hammond sufficiently explained his opinion. It furnished “the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions”: Makita at [59].

1. The appellant would submit it does not specifically explain Dr Hammond’s opinion on causation, given the onset of symptoms two to three weeks after the fall. In my view it does, sufficiently, and I will return to this point below, in considering the competing views of Drs Hammond, and Wallace.

1. The opinion of Dr Hammond was entitled to weight, and was entitled to be considered, along with the opinion of Dr Wallace, in deciding the causation question.

The Rejection of Dr Wallace’s Opinion

1. The next ground of appeal raised by the appellant goes to the weight of the evidence, and whether the Arbitrator was correct in preferring the opinion of Dr Hammond to that of Dr Wallace, on the causation issue. It is submitted Dr Wallace explained his position, that if the respondent had “suffered significant left shoulder pathology at the time of the fall in June 2007 she would have noted symptoms at the joint immediately”. He provided an explanation for the symptoms alternative to the fall, being that they were caused by age related degenerative conditions. It is submitted the Arbitrator “reversed the onus of proof” in rejecting Dr Wallace’s opinion on the basis that doctor had not explained how the “condition arose three weeks after the incident”.

1. Having formed the view, consistent with the Arbitrator, that the opinion of Dr Hammond was entitled to weight, it is then necessary to consider the competing views of those doctors, in conjunction with the other evidence, in deciding whether the respondent’s shoulder condition resulted from the fall. In carrying out this function, it is necessary to critically analyse the competing views. In doing this in respect of Dr Wallace, the Arbitrator was not reversing the onus. It is apparent, from the reasons at [20], that the Arbitrator remained aware that the respondent carried the overall onus of establishing her case on causation, on the probabilities.

1. In any event, it is unnecessary that the appellant demonstrate error, to succeed on this appeal. Rather, it is necessary that I conduct a merits based review, to decide whether the Arbitrator’s decision was true and correct: State Transit Authority of New South Wales v Chemler [2007] NSWCA 286, (2007) 5 DDCR 286.

1. In dealing with the causation issue, I am entitled to rely on matters beyond the views of Drs Hammond and Wallace. In Hevi Lift McColl JA said, at [90] and [91]:

“90. His Honour was entitled to rely upon his commonsense evaluation of the sequence of events: see Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563-564, 569; Tubemakers of Australia Ltd v Fernandez, above, per Mason J at 725; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 – 464 per Kirby P (with whom Sheller and Powell JJA agreed); Commonwealth v McLean (1996) 41 NSWLR 389 at 410; Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258 per Handley JA at [8] - [9], Foster AJA at [35]; McDonald t/as BE McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297 at [103] – [110], [118]. That sequence of events included the respondent’s evidence that prior to 1999 his back was asymptomatic but that while working for the appellant in Bangladesh he noticed backache at the end of the day.

91. His Honour was also entitled to make the “commonsense” findings concerning matters likely to impose stress upon a back to which I have earlier referred (primary judgment at [41] – [44]). They were both within the “realm of common knowledge and experience” spoken of by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez above, at 724 and the specialised knowledge he had acquired as a judge of the Compensation Court.”

1. Dr Wallace, in his report dated 11 February 2008, recorded a history of the fall:

“…when she trod on the footpath her foot slipped and she stumbled falling forward onto her hands and knees”.

1. He recorded an onset of niggling pain at her left shoulder radiating to the lateral aspect of the left arm to the level of the elbow”, three weeks after the fall. He noted there was no previous history of left shoulder injury or pain. He described the ultrasound of 22 November 2007 as showing “a very small partial thickness tear involving the subscapularis tendon. There is no evidence of joint effusion.” Dr Wallace’s opinion on causation was as follows:

“The mechanism of injury and the 3 week period between her work incident in June 2007 and the onset of symptoms at her left shoulder is not consistent with a work related injury at her left shoulder as a result of her fall on 5 June 2007.
If Ms Fenwick had suffered significant left shoulder pathology at the time of her fall in June 2007 she would have noted symptoms at the joint immediately.
Ms Fenwick’s current symptoms are consistent with pre-existing degenerative cervical spondylosis with neuritive left radiculopathy or pre-existing degenerative rotator cuff pathology.

Her condition is not related to her work incident of 5 June 2007. Her employment is not a substantial contributing factor to her neck or left arm condition.”

And:

“Ms Fenwick’s spontaneous onset of symptoms in her neck and left arm in late June 2007 are due to pre-existing degenerative conditions at her neck and left shoulder.”

1. Dr Wallace re-examined the respondent on 23 October 2008, and produced a further report dated 5 November 2008. He noted an MRI of the left shoulder had been carried out on 31 July 2008, and it “showed supraspinatus tendinosis and subacromial impingement”. He expressed this view on causation:

“Ms Fenwick suffered no injury at her left shoulder as a result of a fall at work on 5 June 2007.

She noted no symptoms at her left shoulder at the time of her fall and was able to continue work at normal duties over the following three weeks.

She subsequently noted the onset of niggling pain at her left shoulder.

Recent MRI investigation in July 2008 shows no evidence of rotator cuff tear.

There is evidence on that study of supraspinatus tendinosis and mild subacromial bursitis which are age related degenerative conditions and are the cause of her current left shoulder symptoms.

Ms Fenwick’s employment with the Department of Ageing, Disability and Homecare is not a substantial contributing factor to her left shoulder condition.”

1. Dr Wallace also concluded the respondent suffered “total left upper limb impairment of 1% which corresponds to a whole person impairment of 1%.”

1. Like the Arbitrator, I prefer the view of Dr Hammond on the causation question, to that of Dr Wallace. A matter specifically relied on by Dr Wallace, in his first report, as being inconsistent with the respondent’s symptoms being caused by the fall, was the mechanism of injury. This was against a background of the history recorded by Dr Wallace that the respondent stumbled forward onto her hands and knees. The history in the respondent’s statement, on which she was not cross-examined, was that her foot slipped as she put it on the path, she tried to stop herself falling to no avail, and “found myself on all fours on the other side of the path”. She had been carrying her work bag in her left hand at the time of the fall. She skidded along the grass. Initially her hands were stinging, red and covered in wet grass and dirt. She was shaken. The incident report form the respondent filled in on 7 June 2007 described the fall:

“On getting out of my car I walked onto the wet, icy grass & then stepped onto path, my feet slipped & I fell over on the grass landing on my hands + knees.” 

1. The respondent told Dr Hammond that she “landed on both outstretched hands”.

1. In my view, a commonsense finding would be that falling forward, onto one’s hands, whilst carrying a bag in the left hand, would have the potential to injure the left shoulder. It is difficult to identify anything about the “mechanism of injury” that would be inconsistent with this. Dr Wallace does not explain what it was about the mechanism of injury that was, in his view, inconsistent with injury to the left shoulder. It is possible that what Dr Wallace was referring to was his use, in recording the history, of the term “stumbled”, perhaps suggesting the fall was a relatively gentle one. If this was Dr Wallace’s understanding of the history, it is not borne out by the relatively contemporaneous version in the incident report, or by the respondent’s statement. Thus I find Dr Wallace’s reliance on the “mechanism of injury” in the circumstances unconvincing, and inconsistent with a “commonsense evaluation of the sequence of events”.

1. A further difficulty with the views of Dr Wallace is his varying diagnoses. In his first report he attributed the respondent’s symptoms to cervical spondylosis with left radiculopathy, or degenerative rotator cuff pathology. Dr Hammond considered the diagnosis of spondylosis, and dismissed it, describing his findings on examination as “certainly not consistent with arthritis of the neck”. This dismissal is convincing, in the context of the various restrictions on shoulder movement described by Dr Hammond, under the headings “History” and “Examination” in his report. Additionally, the diagnosis of cervical spondylosis was difficult, given that Dr Wallace in his first report referred to very little in the way of neck complaints. A reference to radiation of pain from the left shoulder to the left side of the neck (at P 4.5) was the only reference I could find to neck symptoms. Dr Wallace did not refer to any radiological investigations to suggest the existence of cervical spondylosis. It is unclear what it was about the respondent’s presentation that led Dr Wallace to such a diagnosis.

1. By the time of Dr Wallace’s second report, an MRI had been carried out, that identified specific pathology in the left shoulder. It also showed no evidence of rotator cuff tear. “Degenerative rotator cuff pathology” had been the alternative diagnosis (to cervical spondylosis) suggested by Dr Wallace in his first report. In his second report Dr Wallace suggested the diagnosis was “supraspinatus tendinosis and mild subacromial bursitis”, both of which he described as “age related degenerative conditions”. These were not diagnoses Dr Wallace had made on clinical indications, in his first report.

1. Dr Hammond, by comparison, had regarded the respondent’s clinical presentation at his initial examination on 16 April 2008 as consistent with shoulder impingement (see “Examination” at P 2.2). This remained his view, and it was a diagnosis confirmed by the MRI carried out on 31 July 2008. Overall, I find Dr Hammond’s assessment of the matter, including the causation issue, more convincing than Dr Wallace’s.

1. In so far as the delay in onset of symptoms is concerned, that delay was something Dr Hammond took into account in arriving at the diagnosis of impingement, resulting from the fall (see his report at P 2.4). There is no indication he thought a delay of that magnitude was inconsistent with the diagnosed condition resulting from the fall. This is understandable, given his explanation that the impingement occurs when tendons are trapped between bones, causing pain and inflammation. There is nothing inherently improbable in the proposition that inflammation may develop with the passage of what was a relatively short period of time, between the fall and the onset of symptoms.

1. I prefer the opinion of Dr Hammond to that of Dr Wallace on this issue. Additionally, a commonsense evaluation of the mechanism of injury is consistent with the proposition that a fall in such circumstances could cause traumatic injury to the left shoulder. Additionally, I note the respondent had not suffered from left arm or shoulder symptoms prior to the fall, she developed such symptoms within two to three weeks of the fall, and they have continued thereafter. Whilst this sequence is not determinative, it is consistent with the shoulder having been injured in the fall.

1. Kirby P (as he then was), in a frequently cited passage from Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 at 463G to 464A said:

“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from", is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”

1. After a “commonsense evaluation of the causal chain”, including the expert opinions of Drs Hammond and Wallace, I have concluded the pathology (and symptoms) in the respondent’s left shoulder and arm result from the fall on 5 June 2007. This is the same conclusion on causation the Arbitrator reached. Thus I have concluded, after a merits based review, that the Arbitrator’s decision on the causation issue was true and correct: Chemler. Save in one respect referred to below, that decision should be confirmed.

1. At paragraph [1] of the Certificate of Determination the Arbitrator entered “an award for the Applicant (the respondent to this appeal) in respect of her claim for permanent impairment”. He then remitted the file to the Registrar to arrange assessment by an AMS of the degree of permanent impairment. He did not award any specific amount. Where there is a dispute about the degree of permanent impairment, section 65(3) of the 1987 Act precludes the Commission from awarding permanent impairment compensation, unless the degree of permanent impairment has been assessed by an AMS. Such an assessment has not, at this point, occurred. Assessment of the degree of impairment, that results from the injury that has been found, is within the jurisdiction of the AMS, rather than the Arbitrator: Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192. An AMS would, if he or she thought it proper, be at liberty to find that there was no permanent impairment resulting from the injury. It follows that the more correct way to approach the formal orders is to remove the reference to an award for the respondent to this appeal, from paragraph [1] of the Arbitrator’s orders.

1. The respondent, in her Notice of Opposition to the appeal, has sought an order, in the event she was successful, that interest be payable by the appellant on the weekly compensation awarded, since the date of the Arbitrator’s determination. The submission does not specify the statutory provision relied upon. Section 110 of the 1998 Act provides:

1. Interest after order for payment

2. Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Commission as is from time to time unpaid.

3. Interest payable under subsection (1) in respect of any sum ordered to be paid:

(a) is to be calculated as from the date when the order was made or from such later date as the Commission in any particular case fixes, and

(b) is to be calculated at the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 or, if the regulations under this Act prescribe some other rate, at that other prescribed rate, and

(c) forms part of the sum ordered to be paid, but not so as to require the payment of interest on interest.

(3)  Despite subsections (1) and (2), where:

(a) the amount of any sum ordered to be paid (excluding the amount of costs to be assessed) is paid in full within 21 days after the sum becomes payable, or

(b) the amount of costs assessed is paid in full within 21 days after that amount is assessed, interest is not payable on the amount so paid, unless the Commission otherwise orders.”

1. The date on which payment of the weekly compensation was ordered was the date of the Certificate of Determination, 21 April 2009. I have simply confirmed that order. It follows that interest on the weekly payment would be payable pursuant to section 110, from the date of the Certificate of Determination, without the need for any further order on my part.

DECISION

1. Paragraph [1] of the decision of the Arbitrator dated 21 April 2009 is revoked, and the following is substituted in its place:

“I remit this file to the Registrar to organise an assessment in accordance with the Workcover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist, of the degree of permanent impairment resulting from the Applicant’s injury on 5 June 2007 to her left upper extremity.” 

1. The decision of the Arbitrator dated 21 April 2009 is otherwise confirmed.

COSTS

1. The respondent has submitted any costs order in her favour in this appeal, should provide for payment of the upper limit specified in Item 1 of Table 4 of Schedule 6 of the Workers Compensation Regulation 2003, as amended by the Workers Compensation Amendment (Costs) Regulation 2006. That figure is $2,200. Any material before me, going to the level at which costs should be recovered, is clearly limited. The preferable course in my view is to make an order for an unspecified amount. The respondent can then apply to the Registrar for assessment, if necessary, pursuant to Regulation 98A.

1. The appellant is to pay the respondent’s costs of this appeal.

Michael Snell

Acting Deputy President  

24 August 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE