Devi v Fairfield Nursing Home - [2010] NSWWCCPD 131

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Devi v Fairfield Nursing Home [2010] NSWWCCPD 131
APPELLANT:		Nalini Devi
RESPONDENT:		Fairfield Nursing Home
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-4413/10
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:		23 September 2010
DATE OF APPEAL DECISION:		22 December 2010
SUBJECT MATTER OF DECISION:		Onus of proof; weight of evidence; Commission not bound by rules of evidence; application of Makita (Australia) Pty ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; expert evidence (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42).
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Gajic & Co
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:		The determination of the Arbitrator of 23 September 2010 is confirmed. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

The appellant, Ms Devi, is 35 years of age. She commenced work with the respondent, Fairfield Nursing Home, on 15 December 2005 as an assistant in nursing on a casual basis.
Ms Devi alleged that she injured her cervical spine as a result of injuries sustained:
(a)     on 31 May 2008, when she slipped and fell, striking her head on a wall (injury 1);
(b)     on or about 8 August 2008, while lifting a patient (injury 2);
(c)     whilst engaged in repetitive bending and heavy lifting (injury 3).
Ms Devi was not incapacitated after the first injury. She was off work for several days after the second injury. From late August 2008, Ms Devi requested that she not be allocated any further shifts, as she needed to take time off work for personal reasons.
On 8 January 2009, Ms Devi resigned her employment, stating that it was due to medical and personal health reasons. She has not worked since.
In early February 2009, Ms Devi experienced acute neck and left shoulder pain after lifting a child at her home. On 25 March 2009, she underwent a cervical discectomy and fusion.
On 7 October 2009, through her solicitors, Ms Devi made a claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) and a claim for weekly compensation at the maximum statutory rate pursuant to ss 36 and 37 from 8 January 2009 to date and continuing.
The respondent’s workers compensation insurer, QBE Workers Compensation (NSW) Limited (QBE), denied liability for Ms Devi’s claims. QBE issued two notices under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The first s 74 notice issued on 5 May 2009 declined liability on the basis that Ms Devi had not sustained an injury arising out of or in the course of her employment pursuant to s 4 of the 1987 Act and it denied that her employment was a substantial contributing factor to the injury (s 9A of the 1987 Act).
In a more detailed s 74 notice issued on 18 November 2009, QBE maintained its denial for the reasons given, but added a denial in respect of claims for permanent impairment and medical expenses. QBE provided detailed reasons for refusing the claim:
(a)     It denied any injury to the left upper limb or neck in the incidents on 31 May and 8 August 2008.
(b)     The report of the alleged injury on 8 August 2008 (made on 27 March 2009) referred only to an injury to the back.
(c)     The worker cited personal reasons, including a marriage breakdown, as the reason for resigning. There was no reference to injuries to the left upper limb or back as a factor in the resignation.
(d)     The worker told Dr Wilcox that she injured her back in May 2008, and injured her upper back and shoulder on 8 August 2008. She also told Dr Wilcox that, in January 2009, she injured her left shoulder whilst moving her two-year-old baby on her bed. The pain increased four to five days later with pain into the left arm and pins and needles in the left thumb.
(e)     The worker told Dr Wilcox she resigned for personal reasons, not due to pain.
(f)      Dr Wilcox’s evidence was that the worker’s condition was not related to her employment.
On 1 January 2010, Ms Devi lodged an Application to Resolve a Dispute in the Commission. She claimed the lump sum and weekly compensation referred to at [6].
On 21 June 2010, QBE lodged a reply denying liability on the basis outlined in their s 74 notices.
The Commission listed the matter for conciliation and arbitration on 1 September 2010. No oral evidence was given at the hearing, but counsel for both parties made extensive submissions. The Arbitrator reserved her decision. She issued a Statement of Reasons on 23 September 2010. She found that Ms Devi did not sustain an injury to her cervical spine in any of the injuries alleged.
The Commission issued a Certificate of Determination on 23 September 2010 in the following terms:
“The Commission determines:
1.       That the Applicant did not sustain an injury to her cervical spine on or about 31 May 2008 and 8 August 2008.
2.       That the Applicant did not sustain an injury to her cervical spine due to the nature and conditions of her employment with the Respondent.
3.       An Award for the Respondent.
No order as to costs.”
In an appeal filed on 20 October 2010, Ms Devi seeks leave to challenge the Arbitrator’s determination.

ON THE PAPERS REVIEW

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

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
It is not disputed that the monetary thresholds in s 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

ISSUES ON APPEAL

The respondent concedes that Ms Devi was involved in two incidents that occurred on 31 May 2008 and 8 August 2008, as alleged, in the course of her employment.
The issues on appeal are whether the Arbitrator erred:
(a)     In finding that Ms Devi did not injure her cervical spine on 31 May 2008 and 8 August 2008;
(b)     In finding that Ms Devi did not sustain an injury to her cervical spine due to the nature and conditions of her employment with the respondent;
(c)     In her treatment of the medical evidence;
(d)     In concluding that Ms Devi’s letter of resignation was not indicative of the existence of a neck injury as at 8 January 2009.

EVIDENCE AND SUBMISSIONS

Ms Devi

Ms Devi stated that her duties at the nursing home involved looking after aged people. This involved toileting them, putting them to bed, feeding them, showering them, dressing them, and transporting them in wheelchairs. She stated that the work was heavy and required repetitive lifting of patients, and repetitive bending, leaning and twisting. She said that she had to work “at pace”.
On 31 May 2008, Ms Devi was attending to a resident, Mr Denkar. He was lying on a slide sheet which she pulled towards her when her left leg became entangled in a walking frame. She lost her balance and fell backwards, hitting her head on the wall and falling on to her buttocks. She recalled holding her back and her head was throbbing. She said that the back of her head just above her neck was sore. The incident was witnessed by a colleague known as Jimmy. Immediately after the incident, she ran into another colleague known as Rhini. She told Rhini that her wrist and thumb were tingling, and she recalled holding her hand over the back of her neck area. Ms Devi stated that she had trouble sleeping that night and the area “above my neck” was sore. She went to work the next day, but experienced pins and needles in her left thumb and hand. She completed an incident report form and continued with her duties.
Ms Devi stated that, as she continued to work, she felt pain in her neck and down her left shoulder. The pain was getting worse as the weeks passed. She said that, at times, she could not look to her right and could barely look to her left. Her neck was stiff and was hurting. She had pins and needles in her left wrist. Each morning, she woke with a very stiff neck and had trouble turning her neck, and she recalled having difficulties driving. She reported these difficulties to her colleagues, Rohini and Nisha.
During the course of a visit to Dr Susino for treatment of one of her children, Ms Devi stated she told Dr Susino of the problems with her neck and was issued with a script for Panadeine Forte.
Ms Devi stated that she was having problems with her marriage “at that time”, which I infer is a reference to the early part of 2008, but she kept working, albeit with continuing neck pain.
On 8 August 2008, she responded to a cry for help from a resident, Mrs Crawford. At the time, Mrs Crawford was leaning to her right-hand side and was about to fall. Ms Devi grabbed her, putting her arms underneath the resident’s armpits. She was assisted by a colleague, Nidhi, and, together, they managed to lift the patient onto a toilet. Ms Devi said that, when she stood up straight, she could feel “stretchy, pinching pain in my left shoulder and neck area”. She reported the incident to the registered nurse known as Susan.
The next day, Ms Devi continued working, but alleged continuing pain. The following day, the pain was “terrible” and Ms Devi did not work that day or the following day. She continued working, but did not complete an incident report form until 20 August 2008, stating that she did not want to make any trouble.
Ms Devi stated that she had part of September and October 2008 off work because of personal difficulties but, during this period, the pain continued.
Ms Devi stated that in October she had not been allocated any work, notwithstanding her requests. In December 2008, Ms Devi learnt of the suicide death of her colleague, Nidhi.
Ms Devi stated that, throughout January 2009, she continued to get excuses about not being allocated shifts. She said that she discussed this with “Tania and Cathy”, but did not provide any evidence of the detail of those discussions. She resigned on 8 January 2009 and has not worked since.
Ms Devi’s letter of resignation, addressed to Fairfield Nursing Home, attention Matron Tonia and DoN (Director of Nursing) Cathy, stated:
“Due to medical and personal reasons, it is with deep regret that I tender my resignation as assistant in nursing at Fairfield Nursing Home effective 8 January 2009.
I have sincerely enjoyed working with all the staff during my time at the Fairfield Nursing Home. I wish to thank you both as well as the entire staff for your continued support during my employment.
I wish you all a safe and prosperous 2009.
Thanking you,
Yours sincerely,
Nalini Devi”
Ms Devi stated that, on or about 29 January 2009, while putting her daughter to bed, she felt a very sharp pain in her neck and left shoulder. She said she could not stand the pain and the pain was continuous. She went to see Dr Mohan at Canley Heights Medical Centre, who prescribed Valium. The pain was acute. She said, “I could barely stand the pain and I was crying because I could barely move myself”.
Three days later, Ms Devi visited her family doctor, Dr Susino. He gave her an injection and prescribed Tramadol. He also referred her for x-rays and an ultrasound. Several days later, she was admitted to Liverpool Hospital because the pain was unbearable.
Dr Susino referred Ms Devi to a neurosurgeon, Dr Balsam Darwish.
On 25 March 2009, Dr Darwish performed an operation on her neck at Liverpool Hospital.
Ms Devi made a further statement on 16 April 2009 to an insurance assessor on behalf of a company known as Claims Intervention.
In respect of the fall in May 2008, she stated that she suffered pain in her lower back and took Panadol. She said that she still had the pains on and off.
In respect of the 8 August 2008 injury, she said that she felt a pull in her left shoulder. This time, the pain was more severe. She stated that she had been having shoulder pain on and off severely since the second incident at work, stating that she thought she had suffered a “pulled muscle”.
She stated:
“At the end of January 2009, I moved my two-year-old baby on her bed. I had pain in my left shoulder again. I thought I had pulled a muscle again. About four or five days later the pain became severe and so I went to the doctor near my house (around 2 or 3 February 2009). The doctor gave me Voltaren and sent me for an x-ray. I took Voltaren for three days, but it didn’t do anything.”
Ms Devi then described pain in her left arm and numbness and pins and needles in her left thumb. She said that she couldn’t get out of bed or sit down. She went to her family doctor. He ordered an x-ray, ultrasound and CT scan. The CT scan demonstrated that the C5 disc was pressing onto a nerve.

Catherine Melton

Ms Melton provided a statement of evidence dated 20 July 2010. She is the director of nursing at Fairfield Nursing Home.
Ms Melton was overseas when the first injury occurred on 31 May 2008. Upon her return to work, she noted that Ms Devi was working normally. She did not report any pain or problems with doing her work or that she was unable to work. She did cancel shifts from time to time, but it was not unusual for Ms Devi to cancel shifts at short notice without providing reasons.
The roster shows that Ms Devi worked on Friday 8 August 2008 (12.30 pm to 9.00 pm) and Saturday 9 August 2008 (6.30 am to 12.30 pm). She cancelled her shift on Sunday 10 August 2008.
On Monday 11 August 2008, Ms Melton was informed by Robyn Rogers, a diversional therapist, that Ms Devi had called to say that she was unable to work the next day as she had hurt her back and was going to have physiotherapy and x-ray.
Ms Melton left an incident report form for Ms Devi to complete upon her return to work. She did not do this. On 20 August 2008, Ms Melton again requested that an incident report form be completed. The following day, the incident report form was returned to Ms Melton, stating that Ms Devi had suffered a sprained back on 8 August 2008 whilst assisting Ms Crawford. Ms Crawford was described as a small-framed woman weighing approximately 40 kg.
Ms Melton stated that, around the end of August 2008, Ms Devi told her that she was having marriage problems and problems with her teenage daughter, and would like to take time off to travel to Fiji. As a result, she was not allocated any further shifts for a period of time.
Ms Melton stated that she was present in January 2009 when Ms Devi came in and spoke with Tonia Russo to resign her position. She recalled Ms Devi being upset and crying, stating that she was having a lot of problems with her husband and family, and that was the reason for her resignation because she needed to manage her children. Ms Devi did not report any injury or any form of pain resulting from the workplace incidents.
At no stage did Ms Devi present any medical certificates relating to an injury or any pain arising from workplace incidents.
Ms Melton signed a statement dated 24 April 2009 which is substantially consistent with her later statement.
Ms Melton prepared a handwritten diary note in respect of the injury alleged to have occurred in August 2008. It stated:
“[illegible] August 2008 Devi rang at about 8.20 am to let us know that she hurt her back and that she could not come to work on Tuesday going to have physio and x-ray and would ring on Tuesday to let us know if she was working on Wednesday. N Devi said that she told the sister in charge and that there was a nurse with her and would fill out form on Wednesday.
Signed Cathy Melton.”

Tonia Russo

Ms Russo is the director of nursing at Fairfield Nursing Home. She provided a signed statement dated 23 April 2009. Ms Russo confirmed that Ms Devi worked as an assistant in nursing from 16 July 2006 to 8 January 2009. She stated that Ms Devi was limited in her availability to work. Ms Russo stated that Ms Devi was not always reliable and would often need to cancel shifts.
She stated that Ms Devi separated from her husband in the previous year and they subsequently divorced. As a result of this, Ms Devi did not work a lot in 2008, working only 81 shifts between 17 January 2008 and 8 January 2009.
Ms Russo stated that Ms Devi resigned on 8 January 2009. She resigned in person. At no time did Ms Devi complain to her of pain or mention any physical issues relating to the work. She said that she needed time to get over the divorce and she needed to look after her children.
Ms Russo stated that, after the work incident in 2008, Ms Devi never indicated to her that she had been injured or needed to take any time off work. She never left work following the incidents.

Witness statements

Jimmy Dizon, who witnessed Ms Devi’s first injury, is no longer employed by the respondent and declined to provide a statement of evidence.
Nidhi Janu, who is alleged to have witnessed the incident on 8 August 2008, is now deceased. The time sheets for 8 August 2008 indicate that Ms Janu signed off at 8.00 pm. The alleged incident occurred at 8.45 pm.

Incident reports

On 1 June 2008, Ms Devi completed an accident or incident reporting form in respect of the alleged injuries on 31 May 2008. Under the heading “Description of accident/incident”, she said:
“Nurse Jimmy and I were attending Mr Dencha in room 20, Jimmy was on the R side of the bed and I was on the left side and in the process of repositioning the resident when I caught my left leg on a walking frame w/c was on the floor underneath a normal chair causing me to get off balance and fell [sic] on the floor. Matter were [sic]reported to sister in charge on 1 June 08.”
In answer to questions relating to details of injuries, first aid, treatment and the doctor notified, the answer to each was noted as “n/a”.
On 21 August 2008, Ms Devi completed an accident or incident reporting form in respect of the alleged injuries on 8 August 2008. She described the accident/incident as follows:
“Ms Crawford was leaning in the toilet with easy walker then she was screaming for help and I saw her out of balance. I tried to put her back in the toilet, but she hold the frame too tight so I sprain my back.”
Under the heading “Extent of injuries”, she noted “back injury”. Details of her doctor and treatment were left blank.
On 27 March 2009, Ms Devi completed an employee’s report of injury form in respect of the alleged injuries on 8 August 2008. She stated:
“The accident happened while lifting a resident preventing her to fall by holding and lifting her from me back and putting her on the toilet.”
Under the heading “Injuries”, she stated “ruptured disc” and indicated that the body part affected was the neck.

Medical evidence

Ms Devi consulted Dr Kahn, whom I infer is a partner or locum of Dr Susino, on 3 November 2008. This was the first occasion on which she had consulted a doctor after her reported injuries. No detail is provided concerning the subject matter of that consultation. The last occasion on which she consulted a doctor in the practice prior to that was on 4 December 2007.

On 27 November 2008, Ms Devi consulted Dr Susino. She reported various gynaecological problems, but made no mention of any injury to the neck or back.
Ms Devi saw Dr Susino again on 3 December 2008. The entry is difficult to decipher, but it appears to refer to a review by a gynaecologist, Dr Rahimpanah.
On 5 December 2008, Ms Devi consulted Dr Susino concerning her gynaecological condition.
On 9 December 2008, Dr Farhad Rahimpanah, an obstetrician and gynaecologist, prepared a report to Dr Susino. He noted the referral of Ms Devi for treatment of pelvic pain, dysmenorrhoea and menorrhagia. He arranged for Ms Devi to have a hysteroscopy, dilation and curettage, and a laparoscopy, plus/minus resection of endometriosis.
On 4 February 2009, Dr Susino noted;
“On Wednesday developed pain in (L) upper shoulder arm when lifted child now getting pain radiating in shoulder and elbow aching pain, throbbing pain unable to turn neck unable to straighten elbow.”
On 6 February 2009, Dr Susino saw Ms Devi again and noted problems with the left shoulder and neck.
The notes from Liverpool Hospital on 7 February 2009 contained the following entry:
“Summary of Progress
Many thanks for continuing care of this lady who presents with a 10-day history of shooting pain down her left arm. This pain started after putting her child to bed over a week ago. She felt as if she had pulled a muscle and was seen by the LMO, who commenced her on diazepam and some regular analgesia. Despite this, she still experienced significant pain in her left arm. She describes a constant shooting pain in her left shoulder. She states that the pain is constant with no relieving or aggravating factors. There are no neurovascular symptoms. She is otherwise well with no medical history of note.
On examination, she was in pain. Afebrile and haemodynamically stable. On examination of the shoulder there was no visible deformity and there was a full ROM. There was no bony tenderness around the shoulder, elbow or wrist. There was no neurological deficit in the left hand. She had no C-spine tenderness and no history fo [sic] any neck problems. She did experience pain on palpation of the trapezius muscle and she states it is a similar shooting pain.
X-rays of the cervical spine and shoulder were NAD.”
On 9 February 2009, Dr Joseph Sanki performed a CT scan of the cervical spine. He reported his findings as follows:
“Findings
There is scoliosis in the cervical spine, convex to the right. The cervical spine has a kyphotic alignment. Mild spondylotic change is present in the discovertebral joints, with evidence of loss of disc height, end-plate sclerosis and end-plate osteophyte formation. Mild arthritic change is present in the joint between the dens and the anterior arch of the atlas. Mild arthritic change is present bilaterally in the C7-T1 facet joints.
At C2-C3, no disc bulge is seen. There is no evidence of neural compression.
At C3-C4, there is mild broad based disc bulge. The disc is abutting the anterior part of the thecal sac.
At C4-C5, there is a moderate broad based disc bulge. The disc is indenting the anterior part of the thecal sac.
At C5-C6, there is a prominent broad based disc bulge, which is most severe in the left posterocentral and posterolateral location. The disc is indenting the thecal sac. The disc is causing narrowing of the left side exit foramen.
At C6-C7, no disc bulge is seen. There is no evidence of neural compression.
At C7-T1, no disc bulge is seen. There is no evidence of neural compression.
Conclusion
Multilevel spondylotic change is present in the sites described above. The most prominent disc bulges are at the C5-C6 and C4-C5 levels.”
On 9 February 2009, Dr Susino saw Mrs Devi twice. On the first occasion, he recorded severe shooting pain from the left side of the neck down to the hand and neurological symptoms. Later that day, he reviewed the outcome of the CT scan.
On 11 February 2009, Dr T Mander-Jones performed an ultrasound of the left shoulder. He noted mild altered echotexture in the tendon of the supraspinatus consistent with minor tendinopathy, but without evidence of tear. There was no bursal or joint effusion, and no impingement on abduction. The remainder of the rotator cuff tendons, long head of biceps and the rest of the soft tissues around the shoulder were all within normal limits. There were no findings of note.
Ms Devi saw Dr Susino again on 12 February 2009, 20 February 2009 and 3 March 2009 concerning neck and arm pain.
Dr Darwish is Ms Devi’s treating neurosurgeon. He saw Ms Devi on 24 February 2009 on referral from her general practitioner, Dr Susino. He prepared a report dated 5 May 2010 to her solicitors. He noted Ms Devi presented with a three-week history of neck pain radiating to the left arm. The pain was associated with paraesthesia involving the left index finger and thumb, and the lateral aspect of the left forearm. She used to work in a nursing home and her work involved lifting patients. Three months prior to presentation, she had neck pain radiating to the left shoulder, which she attributed to muscular pain, and did not seek medical advice. However, in the last three weeks prior to presentation, the pain became severe and started to radiate to the left arm.
Dr Darwish conducted a physical examination and reviewed the CT scan of the cervical spine dated 9 February 2009. He noted the presence of a large C5/6 posterolateral disc protrusion. He diagnosed Ms Devi with left C6 radiculopathy and arranged for an MRI scan of the cervical spine.
Ms Devi was seen at Liverpool Hospital on 2 March 2009. The hospital notes state:
“Many thanks for the continuing care of this lady who presented to the ED with pain. She has left-sided arm pain for the past four weeks after lifting her daughter. She has had a CT scan of her cervical spine which showed multi-level spondylitic changes, the most prominent at the level of C5-C6 and C4-C5. She has seen Dr Darwish, the neurosurgeon, and has an MRI arranged for tomorrow and will follow up on 10 March 09.”
On 3 March 2009, Dr T Sachinwalla performed an MRI scan of her cervical spine. He noted:
“There is disc desiccation throughout the cervical region. At the C3/4 level, there is a small central to right paracentral disc protrusion with some encroachment on the cervical spinal cord.
At C4/5 level, there is a moderate central disc protrusion with a broad base causing mild posterior displacement of the cervical cord.
At the C5/6 level, there is a large posterolateral disc protrusion with some inferior extension of disc material into the adjacent neural foramen. Marked displacement and compression of the adjacent portion of the cervical spinal cord and the proximal left C6 nerve root is noted”.
Also on 3 March 2009, Ms Devi saw Dr Susino. As with all of his entries, this entry is difficult to decipher, but it appears to note:
“Nalini re incident at work in relationship to the problem in neck whilst working as nurse assistant at Fairfield Nursing Home stated developed pain in left shoulder, left neck in 2007.”
Dr Darwish reviewed Ms Devi on 10 March 2009. She continued to complain of neck and radicular pain. He noted the results of the MRI scan of the cervical spine of 3 March 2009 which showed a large C5/6 central and paracentral disc protrusion causing severe canal stenosis. He recommended a C5/6 anterior cervical discectomy and fusion, which was ultimately performed on 25 March 2009.
When asked to comment on the cause of Ms Devi’s injury, Dr Darwish said:
“Nalini presented with a three-week history of neck pain radiating to the left arm associated with paraesthesia over the lateral aspect of the left forearm and in the left index finger and thumb. She used to work in a nursing home and her work involved lifting patients. Three months prior to presentation, after lifting a patient, she developed neck pain radiating to the shoulder, which she attributed to muscular pain but did not seek any medical advice. However, in the last three weeks prior to presentation, the pain became severe and was associated with paraesthesia in the left forearm and fingers of the left hand.
Disc protrusions can result from normal degenerative processes, from trauma or a combination of both factors. I believe Nalini’s work was at least a contributing factor [sic, to] her becoming symptomatic. It is impossible to pinpoint the direct cause of disc protrusions.”
When asked to consider whether Ms Devi’s employment was a substantial contributing factor to her injury, he noted that her work was physical and involved helping elderly patients with limited mobility to shower. He said that he believed her work may not be the direct cause of the disc protrusion, but it was at least a substantial contributing factor to her becoming symptomatic.
Dr Darwish assessed a whole person impairment of 27 per cent. He considered Ms Devi fit to return to her pre-injury duties, with the restriction not to lift objects heavier than 20 kg.
On 19 March 2009, Dr Susino issued a WorkCover medical certificate certifying Ms Devi unfit for work from 4 February 2009 to 4 May 2009, based on a diagnosis of injury to the C4/5 disc as a result of lifting heavy nursing home residents over three-and-a-half years.
On 4 May 2009, Dr Susino issued a further WorkCover medical certificate certifying Ms Devi unfit for work from 5 May 2009 to 6 June 2009 as a result of injuries to her neck, again based on the history of heavy lifting of nursing home residents over three-and-a-half years.
On 10 June 2009, Dr Susino issued a further WorkCover medical certificate certifying Ms Devi fit for suitable duties from 10 June 2009 to 12 August 2009. Certification was based on the injuries to Ms Devi’s neck and was said to have occurred again as a result of the heavy lifting of nursing home patients over a three-and-a-half year period.

Dr Sheikh Habib

Dr Habib is a medicolegal consultant in orthopaedics and trauma. He provided a report to Ms Devi’s solicitors on 16 September 2009. Dr Habib recorded the documents that he had reviewed, including the radiological reports of the CT scan, ultrasound and MRI investigations. He provided a brief statement of Ms Devi’s working history. In terms of the employment with the respondent, he stated that Ms Devi worked mostly Friday to
Sunday, seven or eight hours a day, and was often called to do overtime, working an average of 30 hours a week. Her duties included showering and toileting of elderly residents, dressing and undressing residents, transferring residents from bed to chair and back to bed, feeding and cleaning the residents, and transporting them by wheelchair. He stated that the duties involved repetitive bending, stooping and heavy lifting in a repetitive fashion. Ms Devi claimed that, until the last 12 to 18 months, she often worked alone, looking after an average of 15 residents.
Ms Devi provided Dr Habib with the history of her injuries on 31 May 2008 and 8 August 2008. Those histories were consistent with the history recorded in her statements referred to at [23]–[27]. He noted that, on 9 August 2008, Ms Devi completed her shift. She then took a few days off work because of neck pain radiating into the left scapula and to the left arm and thumb, accompanied by numbness. He stated that, in January 2009, Ms Devi resigned from her job because of difficulty she was experiencing carrying out the work duties and also serious marital problems. He noted that she had undergone an excision and replacement of the C5/6 disc performed by Dr Darwish on 25 March 2009. Post-operatively, the left radicular pain in the left upper limb had resolved, but she had ongoing neck pain and had not worked since 13 January 2009.
Dr Habib undertook a comprehensive physical examination, the details of which are recorded in his report. He reported on the various radiological investigations, but notably the MRI scan which demonstrated a C5/6 large left posterolateral disc protrusion.
Dr Habib expressed the opinion that Ms Devi’s employment and the nature of her duties involved heavy lifting and repetitive bending (neck and back). He opined that the incidents on 31 May 2008 and 8 August 2008 resulted in the development of neck and upper limb symptoms, which gradually deteriorated from continuing work duties. The neck condition/injury failed to resolve and required surgery to prevent spinal cord damage. The surgery resulted in complete resolution of the left upper limb symptoms from radicular involvement.
Dr Habib assessed that Ms Devi was permanently unfit for pre-injury unrestricted duties, but could return to office or semi-sedentary duties in the pre-injury hours of work (seven to eight hours a day, three days a week) with a number of restrictions. He assessed that she suffered from a 27 per cent whole person impairment.

Dr John O’Neill

Dr John O’Neill, a consultant neurologist, provided a medicolegal report to the respondent’s solicitors dated 11 January 2010. He obtained a history from Ms Devi that she had no problems with neck or low back pain prior to the incident at work on 31 May 2008. She described the accident in terms that were consistent with her evidence at [22]–[24]. Dr O’Neill noted that, at the time, Ms Devi said that she felt low back pain, but, when she got home that evening, she also had a sore neck and headaches. She had no time off work and did not seek medical attention, but continued to experience intermittent pain both at the back of the neck and in the low back, for which she occasionally required Panadol.
Ms Devi reported the injury that occurred on 8 August 2008, which again is consistent with her evidence referred to at [27]–[28]. Dr O’Neill noted that Ms Devi told him she felt “a stretching pain” at the neck and at the back of the left shoulder. He pointed out to her that the incident was reported as a “strained back”, in response to which she said, “The low back was sore as well”. Dr O’Neill recorded that Ms Devi told him that she resigned on 8 January 2009 with the primary reason being that there was no-one to look after her children, then aged 12, seven and three.
Ms Devi told Dr O’Neill that it was soon after her resignation and around late January 2009 when she bent to put her two-year-old child (weighing 7 kg) into bed, following which, on straightening and sitting on the side of the adjacent bed, she felt the sudden onset of “pain and stiffness” at the left side of the neck. She said symptoms persisted and became gradually more severe over a period of some four days. She said that it was difficult to move the neck because of pain. He noted that she initially sought treatment from Dr Monaghan and then from Dr Susino. He also noted she attended the emergency department at Liverpool Hospital with symptoms on 8 February 2009, but was not admitted. He noted the content of the report of the CT scan of 9 February 2009 and the MRI of 3 March 2009.
After obtaining a history of continuing symptoms of neck pain and conducting a physical examination, Dr O’Neill concluded that there was no doubt that, from late January 2009, Ms Devi had the symptoms and signs of a left C6 radiculopathy, which correlated with the CT and MRI scan findings of a large left posterolateral disc protrusion at C5/6. Dr O’Neill noted that the surgery had resulted in complete relief of symptoms and signs of left C6 radiculopathy, but there were continuing signs of mechanical neck pain and stiffness, but he was surprised at the extent of it. He noted a relatively minor co-existing problem of complaint of mechanical low back pain, the absence of any radiculopathy relating to the lumbar symptoms and, although movements were cautious and slow, they were unaccompanied by any asymmetry of movement, muscle guarding or spasm. He noted that her symptoms had not resulted in any radiological studies of the lumbar spine.
In terms of causation, Dr O’Neill was of the view that Ms Devi almost certainly suffered from pre-existing but asymptomatic multilevel cervical disc degenerative disease. However, he said:
“There is absolutely no doubt from the history I obtained today that the most severe episode of neck pain and stiffness occurred immediately after putting her two-year-old child to bed in late January 2009 with the symptoms of cervical radiculopathy occurring over the next few days. I have no doubt that the severe left posterolateral disc protrusion at C5-6 occurred at that time.”
Dr O’Neill said that it was crucial in determining whether there had been any contribution to the development of the cervical radiculopathy from the work incidents that reports be obtained from the first doctor Ms Devi consulted at Canley Heights, from her usual GP, Dr Susino, a report from the emergency department at Liverpool Hospital concerning her admission there on or about 8 February 2009, and the initial consultation report of Dr Darwish. It would appear that this information was never provided to Dr O’Neill for further assessment.
Dr O’Neill opined that Ms Devi might be able to return to nursing duties if associated with a 5 kg weight-lifting restriction, but she was to work in a “truly light (administrative) capacity”. He assessed a whole person impairment of 27 per cent.
Dr O’Neill concluded his report by indicating that, in his opinion, the question of causation remained uncertain pending the additional and further information requested. However, he said that there was no doubt that the onset of symptoms and signs of cervical radiculopathy occurred immediately following the lifting incident at home some weeks after her resignation from work, and that it would certainly be his view that the incidents at work would, at most, be only a partial (and perhaps only a minor) contributing factor to the aforementioned ultimate current assessment of impairment.

Dr David Wilcox

Dr David Wilcox, a consultant surgeon and trauma specialist, provided a medicolegal assessment dated 30 April 2009 to the investigators, Claims Intervention. He noted that, after the injury on 31 May 2008, Ms Devi complained of discomfort in the middle of her back and, although she did not mention it to anybody, she claimed to have suffered a tingling sensation in the left thumb and hand.
He recorded that, following the injury on 8 August 2008, Ms Devi complained of three areas of pain: the midline of the back at the level of T8; a different area of pain in the midline at T3; and a third area along the inner border of the left scapula. He noted that, by 20 August 2008, when she completed the incident report form, she was only having slight discomfort and was able to manage all her work duties.
Ms Devi reported to Dr Wilcox that, in addition to these symptoms, she started to develop a new symptom in September 2008 of gradual onset of left upper posterior shoulder stiffness and soreness. Although these symptoms increased and, by December, were “fairly bad”, she was still able to do her duties normally up to that time. However, she told Dr Wilcox her resignation was voluntary and for personal reasons.
Dr Wilcox noted that, about three weeks after resigning, Ms Devi put her two-year-old daughter, whose weight she estimated at between 8 and 10 kg to bed. She carried her to her bedroom, bent down to put her into bed, and then walked to her own room. She sat on the bed and, at that moment, felt pain extending from the left upper shoulder into the back. This was the first occasion that she had experienced such pain other than in the morning. It persisted for the next three days, but only to a slight degree, and then the pain became more severe, continuing over the next two days, accompanied by very severe pain going down to the posterior aspect of the left upper limb to the hand. He noted her subsequent treatment and surgery.
Dr Wilcox conducted a thorough examination and took into account the radiological evidence, including a CT scan of the cervical spine, the ultrasound of the left shoulder and the MRI of the cervical spine.
Dr Wilcox formed a view that any sensation of tingling at the base of the thumb following the first injury was a local injury and not caused by distant pathology. In his view, as the problem settled, it can be accepted that any injury sustained on 31 May 2008 resolved.

In Dr Wilcox’s view, the second injury appeared to be a relatively minor mid to upper back strain. By the time she reported the incident 12 days later, the symptoms had diminished and she was capable of her normal duties. Dr Wilcox noted that Ms Devi reported that, for no obvious reason, she began some weeks after the “toilet” incident to develop a new symptom. This was stiffness in the shoulder on waking first thing in the morning, followed by an additional pain in the angle of the neck, going to the middle of the back and neck. Neither of these symptoms was brought on by activity or aggravated by her work duties, as they settled within a few hours. In his view, the symptoms were suggestive of the presence of degenerative cervical spine pathology.
Ms Devi’s major symptoms did not commence until a few weeks after she had left work. By then, she had definite radiculopathy and investigations showed that material had extruded from the diseased disc at C5/6, and had compromised the spinal cord and the C6 nerve root. He stated that, in his view, it was reasonable to accept that this occurred at home after carrying her two-year-old to bed and tucking her in. The activity would have required definite neck flexion. It is this movement that is liable to extrude disc material posteriorly.
Taking all of the medical evidence into account, Dr Wilcox formed the view that it was sensible to conclude that neither of the described workplace incidents caused or substantially contributed to this pathology.
Dr Wilcox did not consider the nature and conditions of Ms Devi’s work to have contributed to the end result. He stated that there is no epidemiological evidence that nurses have an increased incidence of cervical disc disease.
In terms of fitness for work, he stated that, although patients can return to fairly heavy work and activities following cervical spinal fusion, Ms Devi’s decision to seek employment of a more sedentary nature is sensible.

THE ARBITRATOR’S REASONS

The Arbitrator was not satisfied that Ms Devi injured her neck in any of the incidents at work. She found it significant that neither of the incident reports referred to any neck injury. This, coupled with the complete lack of attendance upon her general practitioner for treatment in the period 4 December 2007 to 3 November 2008, does not support her assertion that she was suffering from neck pain, which she says at times was so bad she could barely turn her head.
The Arbitrator found that Ms Devi had not satisfactorily explained her lack of medical treatment in this period. Her statement that she mentioned her neck pain and left shoulder pain to Dr Susino, resulting in him giving her a prescription for Panadeine Forte, is not corroborated by his clinical notes.
The Arbitrator concluded that Ms Devi had not, at any relevant contemporaneous time, reported to Dr Susino that she had injured her neck at work on 31 May 2008 and 8 August 2008, or that she suffered symptoms in her neck in the course of her employment.
The Arbitrator noted the history in the Liverpool Hospital discharge referral describing a 10-day history of neck pain after putting her child to bed a week previously, and her denial of any prior history of neck problems.
The Arbitrator also noted that Ms Devi’s resignation letter failed to make any reference to work-related medical problems or an injury to her neck.
The Arbitrator considered the evidence of Dr Rahimpanah dated 9 December 2008, which indicated that, as at December 2008, Ms Devi was being treated for various gynaecological conditions and was due to undergo a hysteroscopy and laparoscopy plus/minus resection of the endometriosis. The Arbitrator found it open to conclude it was more likely than not that the medical problems Ms Devi referred to in her resignation letter were concerned with her gynaecological condition, particularly having regard to the fact that she was not receiving treatment for any neck symptoms at that time.
The Arbitrator placed no weight on the evidence of Dr Darwish. Dr Darwish did not have a full history and, in particular, made no reference to the lifting incident that occurred at home after Ms Devi ceased employment with the respondent. The Arbitrator regarded this as a crucial omission, given that Ms Devi’s acute documented symptoms arose after this event. The Arbitrator found that Dr Darwish’s statement of opinion was made without proper explanation as to how he reached his conclusion and the facts upon which he relied (Makita (Australia)Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita)).
The Arbitrator found that Dr Darwish had failed to properly analyse Ms Devi’s work duties over the period she claimed and made no proper evaluation of whether she had any complaints of pain or symptoms during that period. His only reference to her work duties was flawed, in that Dr Darwish referred to the three months prior to her presentation, which was a period during which Ms Devi was not actually undertaking any duties.
The Arbitrator also placed no weight on the evidence of Dr Habib. His evidence suffered from a lack of any history concerning the incident involving the lifting of Ms Devi’s child. In so far as he offered an expert opinion that Ms Devi’s symptoms in her neck and left upper arm were due to the frank incidents, and noted gradual deterioration from continuing work duties, he failed to obtain a history regarding her work after the second incident. He noted that, after the incident on 8 August 2008, Ms Devi took a few days off work, whereas she had not undertaken any work beyond mid-September 2008.
In the absence of a report from Dr Susino, the worker’s treating general practitioner, the Arbitrator formed the view that the opinions expressed in his certificates were no more than a bare ipse dixit and carried little weight (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 (Edmonds)).
In view of the specific issues raised in the s 74 notice and the very detailed reasons for denying liability, the Arbitrator regarded it as significant that no corroborating evidence was called from colleagues, including Rohini and Nisha, and nor from Ms Devi’s mother. The Arbitrator accepted the reasons for the absence of statements from the witnesses who reported each of the two incidents, as Nidhi committed suicide at the end of 2008 and Jimmy, who witnessed the first incident, refused to provide a statement.
The Arbitrator was not satisfied that Ms Devi had discharged the onus to establish, on the balance of probabilities, that the repetitive bending and heavy lifting substantially contributed to her sustaining an injury to her cervical spine, nor that the injuries to her cervical spine were due to the incidents on 31 May 2008 and 8 August 2008.

The Arbitrator reached her conclusions without relying on the opinions of either Dr Wilcox or Dr O’Neill.

APPELLANT’S SUBMISSIONS

The Arbitrator was in error in ascribing no weight to the opinion of Dr Darwish for three reasons:
(a)     First, the failure to make specific mention of the incident lifting the child at home is of no relevance. Dr Darwish refers to the onset of acute neck and left shoulder pain three weeks prior to 24 February 2009 which, it is submitted, is a clear reference to that particular incident;
(b)     Secondly, Dr Darwish did provide an explanation of how he came to his conclusion that the applicant’s employment duties were a substantial contributing factor to the C5/6 disc lesion, in that:
(i)for three months prior to 24 February 2009, Ms Devi experienced neck and left shoulder pain for which she did not seek any medical advice;
(ii)for three weeks prior to 24 February 2009, Ms Devi experienced an acute increase in neck and left arm symptoms;
(iii)Ms Devi had previously been employed by the respondent performing work involving heavy lifting.
Based on the foregoing, Dr Darwish opined that the disc protrusions were caused by disc degeneration, trauma or a combination of both, and that Ms Devi’s employment, in so far as it involved lifting patients, was a substantial contributing factor to the disc lesion becoming symptomatic.
The appellant submits that the Arbitrator erred in stating that Dr Darwish did not disclose any reasoning process as to how he came to his opinion. The opinion could only be rejected if there was no rational probative value and, as such, as a matter of law, of no weight (Brambles Industries Pty Ltd v Bell [2010] NSWCA 162 (at [19](Bell)).
The appellant submits that the application of Makita in Commission proceedings is tempered by the fact that, in such proceedings, the strict rules of evidence do not apply (s 354 of the 1998 Act).
(c)     Thirdly, in so far as the Arbitrator found that Dr Darwish’s report expressed no proper analysis of the work duties, the applicant gave unchallenged evidence that her work was arduous and performed quickly. Dr Darwish noted that her duties involved lifting patients and, as a matter of commonsense, was an activity which carried with it a risk of injury to the spine. Ms Devi submits that, even if Dr Darwish wrongly referred to the period when she last worked, the relevant evidence is Ms Devi’s evidence that she did experience neck and back pain while at work.
Ms Devi submits that her letter of resignation is indicative of the existence of neck problems as at 8 January 2009 and the Arbitrator erred in failing to so find.
Ms Devi submitted that she performed work for the respondent which was arduous. She experienced neck pain while performing those duties. She resigned for medical reasons and personal reasons, including marital problems. If Dr Darwish’s opinion were accepted, her work duties made her C5/6 disc lesion symptomatic and would be sufficient to make a finding, under s 4 of the 1987 Act, that her employment was a substantial contributing factor to her injury. Even if it were found that there was an acute worsening of the symptoms in early February when the applicant lifted her child, while that would be relevant, it would not prevent a finding under s 9A that her employment was a substantial contributing factor, as there may be multiple substantial contributing factors to an injury (see Hallett v Commissioner of Police (2004) 1 DDCR 580).

RESPONDENT’S SUBMISSIONS

The respondent submits that the Arbitrator did not fall into error in ascribing no weight to the opinion of Dr Darwish. The severe onset of Ms Devi’s neck pain when putting her child to bed in late January 2009 was a crucial fact in Dr Darwish making an assessment of the cause of the applicant’s cervical condition which led to surgery. The respondent submits that the omission of the history renders Dr Darwish’s report of no probative value.
Further, the respondent submits that there was no proper analysis of the applicant’s work duties over the period claimed. His analysis was flawed, due to the fact that, in the period that he referred to, that is, three months prior to seeing him, Ms Devi was not in fact working.
The respondent rejects the submission that the Arbitrator erred in rejecting the applicant’s letter of resignation as indicative of the existence of neck problems as at 8 January 2009. Although Ms Devi saw Dr Susino on 3 November 2008, 27 November 2008, 3 December 2008 and 5 December 2008, there is no reference in his notes to Ms Devi complaining of pain or disability relating to her neck or upper limbs. During that period, she was seeking treatment for gynaecological problems.
The report of Dr Rahimpanah, gynaecologist, dated 9 December 2009, provides detailed evidence as to the worker’s gynaecological condition and treatment. The respondent submits that this medical history is consistent with Ms Devi’s resignation letter which refers to medical and personal health reasons.
The respondent submits that the personal reasons to which Ms Devi referred in her resignation letter concerned the sequel to her marriage breakdown and the need to care for her three young children.
The respondent submits that there was no error by the Arbitrator in failing to conclude that the resignation letter was indicative of the existence of neck problems. Indeed, to the contrary, the respondent submits that there was no basis for the Arbitrator to have made such a finding.
The respondent submits that, looking at the overall evidence, the Arbitrator made no error in finding that the applicant did not suffer an injury to her cervical spine in the manner alleged and made no error in making a determination in favour of the respondent.
The Arbitrator made no error in failing to give any weight to the report of Dr O’Neill. Although Dr O’Neill included the history of pain after lifting her two-year-old child in late January 2009, he reserved any conclusion in relation to causation pending a review of further material he requested, including the details of the initial reports of injury by Ms Devi to her GP, Dr Darwish and Liverpool Hospital.

DISCUSSION

It is not disputed that Ms Devi was involved in incidents at work on 31 May 2008 and 8 August 2008. However, for the following reasons, I agree with the conclusion reached by the Arbitrator that Ms Devi had not discharged the onus to establish on the balance of probabilities that the repetitive bending and heavy lifting substantially contributed to her sustaining an injury to her cervical spine, nor that the injuries to her cervical spine were due to the incidents on 31 May 2008 and 8 August 2008.
Notwithstanding the absence of a report from Dr Susino, the worker’s nominated treating general practitioner, his clinical notes, which are in evidence, do not contain any reference to Ms Devi complaining about pain in her neck or arm on any occasion proximate to the alleged injuries. Indeed, there is no reference to pain in the neck or arm until 4 February 2009, that is, soon after she suffered an episode of severe pain in her cervical spine after putting her child to bed in late January 2009.
The incident reporting form completed by Ms Devi in respect of the incident on 31 May 2008, where she entered “n/a” in reference to a question concerning any injury sustained by her, would lead to the inevitable conclusion that she did not regard herself as having sustained any injury to her neck in that incident.
Ms Devi’s written report of the incident on 8 August 2008 made reference only to a back injury. No injury to the neck was reported.
The history Ms Devi provided to the Liverpool Health Service on 2 March 2009 referred to left-sided arm pain for the previous four weeks after lifting her daughter.
The discharge summary from Liverpool Hospital noted that Ms Devi’s pain “started after putting her child to bed over a week ago”. These entries provide compelling evidence that Ms Devi’s neck and left arm symptoms commenced in or about January 2009 as a result of lifting her daughter.
When Ms Devi eventually completed an employee’s report of injury form, on 24 March 2009, she described in some detail in the report the incident that occurred on 8 August 2008, but she made no reference to being injured in the incident that occurred on 31 May 2008. Her description in the report of an injury to her “neck” as a “ruptured disc” contradicted the incident report made shortly after the 8 August 2008 injury, which referred only to the back. There is, however, a clear temporal relationship between the onset of acute symptoms in the cervical spine with the episode occurring at home on or about 29 January 2009 when she was putting her daughter to bed.
The report of injury form was completed the day before Ms Devi was due to undergo surgery to excise the ruptured disc in her neck and fuse the cervical spine.
Ms Devi’s letter of resignation made no reference to any injury sustained during the course of her employment as the cause of her resignation. To the extent that it referred to personal reasons, it is consistent with her recent divorce and her stated desire to focus her attention on caring for her three young children. It provides no support for the suggestion that Ms Devi had neck or arm symptoms as at 8 January 2009 or from mid 2008.
To the extent that her resignation letter referred to “personal health reasons”, that is more consistent, in my view, with the gynaecological problems for which she had been seeking regular treatment and for which she was about to undergo several investigative procedures, than with the effects of any work-related injury. I make that finding noting that Ms Devi had been capable of performing her normal duties until she absented herself at her request in September 2008 for an extended period of time for personal reasons and to visit some relatives overseas. After returning from overseas in October 2008 Ms Devi, had been actively pursuing her employer to be allocated casual work. For these reasons, I do not accept that Ms Devi resigned because of any neck symptoms, as she now claims.
The Arbitrator did not accept Dr Darwish’s opinion that, although Ms Devi’s work may not have been the direct cause of the disc protrusion, it was at least a substantial contributing factor to “her becoming symptomatic”. The Arbitrator rejected the opinion because it was expressed without the benefit of a full history, and because he failed to explain his conclusion. Importantly, Dr Darwish made no reference to the fact that Ms Devi lifted her child at home after she ceased employment with the respondent. The Arbitrator concluded, and I agree, that this was a crucial omission, given that Ms Devi’s acute documented symptoms arose after this event. I reject the submission that the failure by Dr Darwish to mention this incident “is of no relevance”.
It is abundantly clear from the s 74 notice that the issue to be determined in these proceedings was whether and, if so, to what extent Ms Devi’s injuries arose either as a result of the reported work injuries, and/or the repetitive bending and heavy lifting and the impact, if any, of the incident that occurred in January 2009 when putting her child to bed. In that context, Dr Darwish’s report, which failed to analyse or even comment upon the January 2009 incident, is fatally flawed. The issue was: did Mrs Devi hurt her neck at work? Given that Ms Devi’s significant neck and arm symptoms did not commence until January or February 2009, months after she had left work, Dr Darwish’s failure to refer to the incident at home was critical.
Dr Darwish’s history of neck and left shoulder pain three months prior to 24 February 2009 does not assist Ms Devi because (even if it were accurate) she was not at work at that time. The history of an acute increase in symptoms in the three weeks prior to 24 February 2009 is equally unhelpful because the evidence is that that increase was caused by the incident at home, not by any work activity.
In so far as the so-called “nature and conditions” claim is concerned, Dr Darwish failed to analyse Ms Devi’s work duties over the period of her claim. Although he referred to her work involving lifting patients and “helping elderly patients with mobility to shower”, he made no evaluation of whether she had any complaints of pain or symptoms during that period. His history of an onset of pain occurring three months prior to his first consultation with her led him wrongly to believe that she was working during that period when, in fact, she was not.
Even if it is accepted that Ms Devi’s reference to a lifting three months prior to his examination was intended to be reference to the incident in August 2008 (which occurred six months before his examination), I do not accept that Ms Devi developed neck or shoulder symptoms at that time, as Dr Darwish recorded, for several reasons. First, it is inconsistent with her incident report forms, which make no mention of neck or shoulder symptoms. Second, it is inconsistent with the history she provided to the hospital and third, it is inconsistent with her reasons for resigning.
Whilst it is accepted that Ms Devi’s duties involved some lifting and bending, there is no persuasive evidence that those activities caused or aggravated the pathology found in the CT and MRI scans. In the absence of complaints of neck or arm symptoms while performing her usual duties, the allegation that Ms Devi suffered an injury as a result of the physical nature of her duties is unstainable.

The reference to Bell is misguided. The Arbitrator not only rejected Dr Darwish because he failed to expose his reasoning process, but because he had an inaccurate and incomplete history. In Bell, Tobias JA (Hodgson and McColl JJA agreeing) said:
“26. The result is that the judicial officer hearing the case is unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified. The costs of obtaining a supplementary medical report will pale into insignificance against the costs of litigation resulting from a failure to carefully consider the relevant evidence in a timely and efficient manner.
27. The present case should serve as a lesson and, hopefully, a wake-up call to those who practice in the personal injury area, to ensure that if no oral medical evidence is to be called and reliance is to placed solely upon medical reports, that those reports are clear in the opinions expressed and that the reasoning supporting those opinions is complete. That would avoid appeals of the nature of that in the present case with consequent saving of costs to the parties and court resources.”
The appellant’s medical evidence in this case is an illustration of the shortcomings in the presentation of applications identified by Tobias JA. Notwithstanding having been clearly put on notice in the s 74 notice that the extent to which, if any, the incident involving Ms Devi lifting her child at home in January 2008 caused or contributed to the serious neck injury she suffered, neither of the two medical experts who provided evidence for the appellant addressed the issue in terms. It is that clear gap in the evidence that was not “filled or clarified”.
I reject the appellants submission that the Arbitrator erred in stating that Dr Darwish failed to disclose his reasoning process in reaching his conclusion. She submits the opinion could only be rejected if the opinion was of no rational probative value and, as such, as a matter of law, of no weight, based on Bell. In Bell, there was no dispute that the assumed facts giving rise to the injury were sufficiently identified (see Hodgson at [18]). In the instant case, the omission to identify relevant facts, namely the incident lifting the child, was a crucial omission which the Arbitrator quite correctly identified. Dr Darwish also wrongly recorded that Ms Devi developed neck symptoms three months prior to seeing him in February 2009. The evidence also establishes that that history was incorrect.
The submission that the application of Makita is tempered by the fact that the Commission is not bound by the rules of evidence is wrong. The Court of Appeal held in Edmonds that the principles in Makita apply to proceedings in the Commission. In Edmonds, McColl JA (Giles and Tobias JJA agreeing) said:
“130.In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Ltd v Sprowles (at [59]–[82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39–40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
131.This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70.”
The Commission is bound to apply substantive rules of law. In Edmonds, the Court of Appeal noted at [90]:
“90. In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (at [42]) Gleeson CJ, Gummow and Hayne JJ said of s 364 of the Commonwealth Electoral Act 1918 (Cth), another ‘substantial merits – without regard to legal forms of technicalities’ clause, that ‘[such] [p]rovisions do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness’.”
The Court went on to note at [133]:
“However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”
For these reasons, and for the reasons given by the Arbitrator, I agree with her conclusion that, as a result of the flaws in Dr Darwish’s report, it is of no probative value.
Dr Habib’s evidence suffers from the same flaw as Dr Darwish’s. Dr Habib is a medicolegal consultant qualified by Ms Devi’s lawyers. His report deals with the purported incidents on 31 May 2008 and 8 August 2008, and with the nature and conditions of Ms Devi’s work. However, Dr Habib made no reference to the history of the onset of acute neck pain after the lifting incident at home in January 2009. I infer from Dr Habib’s report that he was under the misapprehension that, subject to having a few days off work after the 8 August incident, Ms Devi continued working until the time of her resignation. Indeed, he noted that, according to Ms Devi, her family circumstances did not allow her to take longer time off work. In fact, she did not work beyond September 2008.
Given the fact that Dr Habib has not had the opportunity to comment on the effect, if any, of the lifting incident at home in January 2009, one of the main reasons for QBE denying compensation, I agree with the Arbitrator’s assessment that his opinion should have no weight.
Further, Dr Habib wrongly recorded that Ms Devi developed neck and left upper limb symptoms as a result of the incidents in May and August 2008 and as a result of the lifting involved in her work. For the reasons given above, that history was incorrect.
Dr Susino is Ms Devi’s treating general practitioner. However, there is no report in evidence from him. Ms Devi seeks to rely on his medical certificates in support of her claim. Whilst those certificates refer to her injury as having been sustained whilst lifting heavy nursing home residents over a three-year period, the certificates are of little probative value in the absence of a medical report to explain them and to set out the history on which they are based (Grief Australia Pty Limited v Ahmed [2007] NSWWCCPD 195).
There is no clear evidence that Dr Susino was aware of the onset of acute symptoms after Ms Devi lifted her child at home. In the absence of a report from him to analyse and explain the reasons for concluding that her injuries are solely due to her work, and in the absence of a history of a significant non-work-related incident and the onset of acute symptoms shortly thereafter, the certificates are, as the Arbitrator concluded, no more than a bare ipse dixit. In my view, the Arbitrator was correct to ascribe little weight to them (Edmonds). I am reinforced in that view by the fact that, nowithstanding his conclusion that Ms Devi injured her neck while lifting patients, there is absolutely no reference in Dr Susino’s notes to an injury to the neck on the three occasions that he saw her after the reported work-related injuries, or at all, prior to her report of the lifting incident in late January 2009.
The first mention in Dr Susino’s clinical notes of an injury to the neck is on 4 February 2009. There is no mention in the clinical notes of any work-related injury to the neck, even though Ms Devi saw Dr Susino on five separate occasions in February, during each making complaints of neck pain.
Dr O’Neill expressed a number of tentative views regarding the question of causation. He specifically reserved forming any concluding view until he had been provided with various materials. No further report was obtained from Dr O’Neill and no concluding views were given. On that basis, the conclusion reached by the Arbitrator that the report should be given no weight was, in my view, the only conclusion that was reasonably open.
Dr Wilcox formed a definite and concluded view that the injury to the cervical spine was caused when the C5/6 disc extruded posteriorly whilst Ms Devi was putting her child to bed. He also concluded that the two work-related incidents did not substantially contribute to her condition. He expressed the view that Ms Devi suffered from widespread degenerative changes in the cervical spine. He stated that there is no epidemiological evidence that nurses have an increased incidence of cervical degenerative disc disease. This would include, Dr Wilcox added, the majority of nurses who would have done many more hours of work per week than Ms Devi. He stated that, in his view, the fact that she has disc disease not just at C5/6, but also affecting the C3/4 and C4/5 levels, with facet joint disease at C7/T1, further shows that her pathology is caused by constitutional disease and not by multiple injuries.
The worker has never presented her case as an aggravation injury under s 4(b)(ii) of the 1987 Act. This was made clear by the submission by Mr Flett, counsel for the respondent at T14.40, from which there was no demur from counsel for Ms Devi when he said “This is not a disease case. It never has been. It’s an injury case, if it’s anything at all. And if injury can’t be proved then the Applicant bears the onus”.
There is no persuasive evidence that the degenerative changes suffered by Ms Devi in her cervical spine were caused or aggravated by her duties as an assistant nurse.
The Arbitrator did not rely on Dr Wilcox’s opinion relating to the nature and conditions component. Indeed, the Arbitrator reached her conclusion without reliance on the opinions of either Dr Wilcox or Dr O’Neill.
Whilst lifting may well cause or contribute to a disc injury, or the aggravation of degenerative changes, I do not accept that that happened in this case. Ms Devi’s evidence that she suffered neck and arm symptoms in 2008 is inconsistent with her notice of injury forms and her failure to mention such symptoms to her GP until February 2009, and the reasons given for her resignation. I do not accept that her neck and arm symptoms started after May 2008 and continued thereafter as she claimed. It follows that I do not accept that Ms Devi’s work duties caused or contributed to her neck symptoms.
It was for the Arbitrator to consider and weigh all the evidence to reach her conclusions (Toll Pty Ltd v Ballantyne [2008] NSWWCCDP 46), which she did in a very careful and comprehensive manner. Having conducted a review on the merits, for reasons given by the Arbitrator and for these additional reasons, I agree with her conclusion that Ms Devi has failed to discharge the onus of proof that she received an injury to her neck on 31 May 2008 and 8 August 2008, or as a result of bending and lifting in the course of her employment between 2005 and 8 January 2009.

ORDERS

The determination of the Arbitrator of 23 September 2010 is confirmed.

COSTS

No order as to costs of this appeal.

Judge Keating

President
22 December 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE