| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GULFPLOY PTY LTD -v- WRIGHT [2014] WADC 46 CORAM : GOETZE DCJ HEARD : 19 FEBRUARY 2014 DELIVERED : 9 APRIL 2014 FILE NO/S : APP 6 of 2013 BETWEEN : GULFPLOY PTY LTD Applicant
AND
BRYAN WRIGHT
First Respondent
AND
ALLIANZ AUSTRALIAN INSURANCE LIMITED
Second Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA) Coram : ARBITRATOR MENGLER File No : A 1315 of 2012 Catchwords: Appeal from decision of WorkCover arbitrator allowing worker's weekly payments of workers' compensation and statutory allowances - Findings by arbitrator based on disputed medical evidence provided only by way of medical reports - Whether errors of law were made by the arbitrator - Turns on own facts Legislation: Workers' Compensation and Injury Management Act 1981 Result: Appeal dismissed
Representation: Counsel:
Applicant : Mr N P Lindsay
First Respondent : Mr G T Stubbs
Second Respondent : Mr M J Civitella
Solicitors:
Applicant : WHL Legal Pty Ltd
First Respondent : Perth City Legal
Second Respondent : CCS Insurance Law
Case(s) referred to in judgment(s):
Allianz Australia Insurance Ltd v Peters and Brownes Group [2005] WASCA 195
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1983) 66 FLR 41
Catholic Education Office of WA v Granitto [2012] WASCA 266
Introduction 1 Mr Bryan Wright commenced employment as a digger/loader operator with Gulfploy Pty Ltd on 18 June 2007, from which date until 31 August 2009, Allianz Australia Insurance Limited was the workers' compensation insurer of Gulfploy. On 1 September 2009, CGU Workers' Compensation became Gulfploy's insurer. 2 On 14 January 2011, whilst at work with Gulfploy, Mr Wright sustained physiological change in his right wrist and forearm. He immediately reported the presence of his symptoms and, notwithstanding the intermittent recurrence of the same or similar symptoms thereafter, he continued with his employment until about 5 June 2011 when he again experienced further symptoms. He was then diagnosed as having De Quervain's Tenosynovitis (DQT) in his right wrist. He was certified off work and began to receive payments of workers' compensation pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (the Act). 3 CGU was Gulfploy's insurer at risk on 14 January 2011. 4 Gulfploy, through CGU, requested that Mr Wright be examined by a number of medical practitioners of its own choosing following which, it was disputed that, on 14 January 2011, Mr Wright had suffered an injury to his right wrist and forearm in the course of his employment. CGU ceased making payments of his workers' compensation and statutory allowances after 11 March 2012. 5 In this circumstance, Mr Wright sought relief from WorkCover against Gulfploy. Its insurer CGU, in turn, sought indemnity or contribution from Allianz for any liability it had to Mr Wright. 6 Mr Wright was successful in the arbitration at WorkCover. Gulfploy was ordered to recommence payment of his workers' compensation and statutory allowances from 12 March 2012. Further, the learned arbitrator dismissed CGU's application for indemnity or contribution from Allianz. 7 Gulfploy, through its insurer CGU, now appeals the decisions in that arbitration.
Broad overview of the facts 8 On 14 January 2011, Mr Wright suffered right forearm and wrist pain at work. He immediately consulted Dr S Patel, general medical practitioner. 9 Mr Wright continued to work after 14 January, however he thereafter complained to his superiors of intermittent right forearm and wrist symptoms. On 5 June 2011, he suffered a further flare up of his symptoms. 10 On 6 June 2011, Dr C Van Reenen, general medical practitioner, provided a workers' compensation medical certificate to Mr Wright recording: 11 On 8 June 2011, Mr Wright consulted Dr C White, general medical practitioner, who arranged for Mr Wright to undergo an ultrasound examination. This confirmed the presence of DQT. Dr White arranged for an x-ray, which showed evidence of high grade triscaphoid degenerative change. He also arranged for Mr Wright to be examined by Dr Adrian Brooks, hand specialist, who, according to the progress report issued by Dr White on 29 June 2011, concurred with the diagnosis of DQT. Dr Brooks did not provide a written report. 12 Mr Wright was then referred to Dr H Nguyen, plastic surgeon. He also diagnosed DQT. 13 On 5 August 2011, Dr Nguyen performed a surgical release of the extensor retinaculum over the dorsal compartment of Mr Wright's right wrist. On 31 October 2011, Dr Nguyen reported the continued presence of persistent DQT, for which he injected steroid under ultrasound guidance, but Mr Wright still continued to suffer symptoms. 14 In December 2011, Mr Wright was referred to Dr J Edelman, rheumatologist, who requested an MRI of the right wrist which was reported as identifying: 1. Severe osteoarthritis of the STT joint. 2. Mild De Quervain's Tenosynovitis and FCR tenosynovitis. … 4. No MR evidence of reflex sympathetic dystrophy, however please note this condition may not be detected by MRI. 15 On 11 January 2012, Mr Wright was reviewed by Dr R Thompson, orthopaedic surgeon, who reported that Mr Wright sustained injury on 14 January 2011, being De Quervain's syndrome, to which his employment was a substantial contributing factor and which was unlikely to have occurred spontaneously. Dr Thompson believed that the use of hand levers on hydraulic loaders contributed to Mr Wright's symptoms. His view was that the ongoing symptoms were caused by a neuroma in DQT surgery scar, with some recurrence of DQT. 16 Dr Thompson was aware of the existence of degenerative changes in the right wrist, but he was not at all sure of their relevance, given the degenerative changes noted usually give more of an aching type of sensation rather than the current picture. 17 Further, in February 2012, Mr Wright was referred to Mr J Ecker, hand, wrist and elbow micro-surgeon. His view was that: It is possible that he has an underlying De Quervain's Tenosynovitis which was not responsible for the majority of his symptoms and as a result, the surgery has not alleviated his symptoms. Based on this issue it would appear that his predominant problem was triscaphoid joint arthritis in the onset. 18 Further, Mr Ecker opined that: It makes sense that medical practitioners may diagnose the source of his pain as being proximal intersection syndrome, De Quervain's Tenosynovitis or distal intersection syndrome. The symptoms and clinical signs do intersect. While this may be the case, it is my opinion …. that the predominant problem and primary problem that he experienced was his triscaphoid joint arthritis. 19 Mr Ecker said that the underlying triscaphoid joint arthritis was not detected until Mr Wright saw Dr Edelman, who recognised the underlying problem. The exhibits before the learned arbitrator do not include a report from Dr Edelman, however there are two progress medical certificates from him certifying Mr Wright off work. 20 On 28 June 2012, Mr Ecker performed an arthroscopic resection of the distal scaphoid to treat Mr Wright's triscaphoid joint arthritis. In September 2012, Mr Wright continued to complain of pain and inability to move his wrist. This prevented him from working. 21 Mr Wright was also referred to Dr J G Hayes, consultant rheumatologist, who reported on 2 October 2012 that Mr Wright's clinical presentation was that of a type 1 Complex Regional Pain Syndrome (CRPS), also known as reflex sympathetic dystrophy, as to which, surgery was an absolute contradiction yet Mr Wright had undergone two operations without improvement, ie, those surgical procedures performed by Dr Nguyen and Mr Ecker. Neither procedure had resolved Mr Wright's symptoms. Mr Ecker disagreed with this opinion from Dr Hayes. 22 Dr Hayes directly related the CRPS to Mr Wright's work on 14 January 2011. 23 This is necessarily a limited overview of the factual circumstances. Further commentary on the medical evidence is detailed below.
The legislative provisions as to the payment of workers' compensation 24 Section 18 of the Act requires an employer to pay workers' compensation 'if an injury to a worker occurs'. 'Injury' is relevantly defined in s 5 of the Act to mean: (a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or (b) … (c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or (d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or … 25 The term 'disease' is defined in s 5 of the Act to include any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development. 26 Section 5(5) of the Act provides as follows: In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account - (a) the duration of the employment; and (b) the nature of, and particular tasks involved in, the employment; and (c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and (d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and (e) matters affecting the worker’s health generally; and (f) activities of the worker not related to the employment.
The issue before the arbitrator 27 Gulfploy, by its insurer CGU, disputed that Mr Wright suffered an injury at work. Alternatively, it disputed that any incapacity arose from any alleged injury to Mr Wright's right wrist/arm on 14 January 2011, or any stage until after 15 March 2011. It was claimed that any incapacity, including DQT and intersection syndrome, only arose on or after 5 June 2011, such that any incapacity was not related to events prior to 16 March 2011. 28 The relevance of the date 16 March 2011 is that, on that date, Gulfploy was sold to BIS Industries Ltd, which was a self-insured company for workers' compensation purposes and CGU was, from that date, no longer the on risk insurer. 29 CGU submitted that Mr Wright did not work for Gulfploy after 15 March 2011. It alleged that the Act applied only to Mr Wright's employment up to 15 March 2011 and not any period thereafter. Consequently, Mr Wright was not entitled to any workers' compensation under the Act. 30 Therefore, the key issue before the learned arbitrator was whether, on 14 January 2011, Mr Wright experienced a sudden onset of severe pain in his right wrist and forearm which was caused by an aggravation or acceleration of previously asymptomatic DQT, noting the requirement for a significant contribution thereto from Mr Wright's employment, as set out within the definition of the term 'injury' in s 5(d) of the Act. If so, did Mr Wright's condition continue thereafter intermittently, or recur, including on or about 5 June 2011, and result in Mr Wright undergoing surgical procedures on 5 August 2011 respecting DQT and on 28 June 2012 respecting triscaphoid joint arthritis, and did his right wrist or forearm symptoms continue to cause him to suffer incapacity for work as a consequence thereof? 31 CGU submitted that it was at least equally probable that Mr Wright suffered from the onset of a non-employment related triscaphoid arthritic condition at some stage subsequent to 16 March 2011 and that he suffered a fresh injury or disability for each flare up thereafter, and in particular, for such flare up which had occurred on or around 5 June 2011. Further, CGU argued that Mr Wright suffered CRPS subsequent to the surgery on 5 August 2011. He did not suffer the triscaphoid joint arthritis or CRPS on 14 January 2011.
The hearing before the arbitrator 32 The arbitration was conducted on 1 November 2012 at WorkCover before Mr J G Mengler. 33 Mr Wright provided a written proof of his evidence. He also attended the arbitration to give evidence and was cross-examined. 34 Further, various medical reports and progress medical certificates were received into evidence without the relevant medical practitioners being called upon to attend at the arbitration to either explain their reports or to be cross-examined on them. 35 The usual method by which medical evidence is received in an arbitration is the receipt of written reports. However, if the arbitrator thinks it appropriate, the arbitrator may allow any witness to participate in an arbitration by means of telephone, video-link or any other system or method of communication: s 198(2) of the Act. 36 None of the parties to the arbitration sought to have any medical practitioner give oral evidence thereat by any means in order to explain any part of any medical report upon which further explanation may have assisted to advance argument being put forward by any of the parties to the arbitration. Absent any such further explanation, the arbitrator was necessarily limited to the written medical reports before him.
The arbitrator's reasons for decision 37 The closing submissions of Gulfploy/CGU conceded that it was beyond argument that Mr Wright had suffered from DQT, as a result of which, he underwent surgery on 5 August 2011. 38 The learned arbitrator found that, on 14 January 2011, Mr Wright suffered an acceleration of previously asymptomatic DQT and that he was entitled to workers' compensation benefits given that it continued to disable Mr Wright from work. The learned arbitrator also rejected the claim for indemnity or contribution by CGU against Allianz.
The appeal from the arbitrator 39 Gulfploy lodged an application for leave to appeal against the arbitrator's decision with six grounds of appeal as follows: Ground 1 1. The Arbitrator erred in fact and in law, by finding that the First Respondent had suffered an Injury by way of aggravation/acceleration of the First Respondent's underlying De Quervain's Tenosynovitis on 14 January 2011 in the absence of any supporting medical evidence and/or in the absence of any evidence to support a finding that the First Respondent's employment with the [Applicant] (on that date in isolation) contributed to such aggravation/acceleration to [a] significant degree. Ground 2 2. The Arbitrator erred in finding that any aggravation/acceleration of the First Respondent's underlying De Quervain's Tenosynovitis sustained on 14 January 2011, as opposed to the De Quervain's Tenosynovitis itself, resulted in any incapacity of the First Respondent and requirement for medical treatment subsequent to around 4 June 2011, where such a finding could not be sustained or supported by the evidence and was contrary to opinions expressed by Mr Ecker and Dr Hayes. Ground 3 3. The Arbitrator misdirected himself as to the effect of: Accordingly the Arbitrator erred in finding that the contribution of the First Respondent's entire period of employment with the Applicant was not a matter which may be inferred from the medical evidence, his findings on the case or as a matter of common sense at paragraph [80] of his reasons for decision. Ground 4 4. The inference drawn by the Arbitrator that the First Respondent's De Quervain's Tenosynovitis was likely to have been present, asymptomatically, for a matter of weeks or months rather than years (at paragraph [74] of his reasons for decision) was not reasonably open to him or capable of being supported on the evidence, and was contrary to the opinion of Dr Rod Thompson (which the Arbitrator accepted). Ground 5 5. In the alternative grounds 3 and 4 above, the Arbitrator erred in failing to consider the First Respondent's claim in terms of paragraphs (a) or (c) of the definition of Injury in s 5 of the WCIMA for the purposes of the Appellant's claim for contribution against the Second Respondent and in doing so denied the Appellant procedural fairness and or natural justice. Ground 6 6. As a result of the errors referred to in grounds 3, 4 and 5 above, the Arbitrator failed to properly exercise his powers [to] properly determine the Appellant's claim for indemnity/contribution under s 74 of the WCIMA against the Second Respondent and the First Respondent's application for a determination of liability pursuant to s 58 of the WCIMA.
The legislative provisions as to an appeal 40 Relevantly, the right to appeal from the learned arbitrator is set out in s 247 of the Act, as follows: (1) If written reasons for an arbitrator’s decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision. (2) Subject to subsection (3), the District Court is not to grant leave to appeal unless — (a) in the case of an appeal in which an amount of compensation is at issue — (i) a question of law is involved and the amount at issue in the appeal is both — or (ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie; and (b) in any other case, a question of law is involved. (5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court. (6) … (7) On hearing an appeal made under this section, the District Court may - (a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and (b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit. 41 It can be seen that the right of appeal is subject to a question of law being involved. 42 In Catholic Education Office of WA v Granitto [2012] WASCA 266, Murphy JA, with whom Pullin and Newnes JJA agreed, said [53] - [57]: [53] An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17. (An appeal of this kind is accordingly broader than an appeal 'on a question of law' - as to which, see [65] below.) [54] If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction in the commissioner to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]. That was a case involving s 247(3) but the point plainly applies to s 247(2) which uses the word 'unless'. It is unnecessary for present purposes to consider whether there are any differences in relation to the operation of the grant of leave contemplated under s 247(2) and s 247(3). [55] Further, in Atanasoska Buss JA (Wheeler and Pullin JJA agreeing) said [21]: If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited. Later in Atanasoska [32], the court referred with approval to the observations of Pullin JA in BHP Billiton Iron Ore Pty Ltd v Brady [14]: In plain cases it might be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal, but experience is likely to show that in most cases the application for leave to appeal, and the appeal should be heard together and the question of leave dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, the commissioner will then be in a position at the end of the hearing to either: Pullin JA also said in that case [15] that the 'commissioner was not bound to accept that questions of law were involved merely because the appellant asserted there were such questions'. [56] It has been held that an appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and that the commissioner, within the constraints marked out by the nature of the appellate process, must conduct a 'real review': Pacific Industrial Co v Jakovljevic [20], [24]. [57] Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the commissioner just to ignore the arbitrator's decision and start again with a view to having the commissioner substitute his or her own decision for that of the arbitrator: Pacific Industrial v Jakovljevic [20], [26].
The questions of law raised by Gulfploy 43 The questions of law said by Gulfroy to arise from the grounds of appeal are as follows: 1. Whether the Arbitrator misdirected himself as to the effect of the evidence and medical opinion of Dr Rod Thompson. 2. Whether the Arbitrator's finding that the First Respondent suffered an Injury within the meaning of s 5 of the WCIMA by virtue of an aggravation/acceleration of a pre-existing condition (De Quervains' syndrome) can be supported on the evidence, whether there is any evidence to support this finding at all and whether this finding is directly contrary to the medical evidence on this issue. 3. Whether there was no factual or evidential basis for the Arbitrator to find that the First Respondent's current symptoms (and therefore any incapacity and requirement for medical treatment) related to any 'aggravation/acceleration' of the First Respondent's De Quervain's syndrome on 14 January 2011, as opposed to any underlying condition of De Quervain's syndrome itself. 4. Whether the Arbitrator took into account an irrelevant consideration at paragraph 74 of his reasons, ie the length of time that the De Quervain's syndrome was likely to have been present, in dismissing the Appellant's claim for indemnity/contribution under s 74 of the WCIMA. 5. Whether or not the Arbitrator properly determined the First Respondent's Application pursuant to s 58 of the WCIMA and the Appellant's application for contribution/indemnity pursuant to s 74 of the WCIMA.
Appeal grounds 1 and 2 44 These grounds may conveniently be dealt with together. 45 Ground 1 essentially alleges that, in the absence of evidence, the learned arbitrator was wrong in fact and law to find Mr Wright suffered injury by way of an aggravation or acceleration of his underlying DQT on 14 January 2011. This ground claims that there was no evidence to support a finding that Mr Wright's employment with Gulfploy 'on that date in isolation' contributed to such aggravation or acceleration to a significant degree. 46 By ground 2, the appeal is that the learned arbitrator was wrong to find that any aggravation or acceleration of underlying DQT sustained on 14 January 2011 resulted in any incapacity and requirement for medical treatment subsequent to around 4 June 2011. Such finding was not supported by evidence and Mr Ecker and Dr Hayes gave contrary medical opinions as to the nature of Mr Wright's symptoms, being triscaphoid arthritis and CRPS respectively. 47 The questions of law said to be raised by Gulfploy concerning appeal grounds 1 and 2 appear to be questions 1, 2 and 3 above. 48 At the arbitration, Mr Wright gave evidence of his work duties, the onset of his symptoms and the intermittent recurrence thereof. This was not challenged. Indeed, it was conceded at the hearing of this appeal by Mr Lindsay, counsel for Gulfploy and CGU, that Mr Wright experienced right wrist and forearm symptoms on 14 January 2011 and that the same or similar symptoms recurred intermittently thereafter until surgery on 5 August 2011. 49 In the course of his submissions, Mr Lindsay accepted that DQT can be caused by repetitive trauma or overuse coming from the operation of levers in loaders of the kind operated by Mr Wright during the course of his employment with Gulfploy. This is the work he was performing on 14 January 2011. 50 Ground 1 ignores Mr Wright's uncontradicted and conceded evidence of intermittent recurrence of the same or similar symptoms from 14 January 2011 onwards until his attendances upon Dr Van Reenen, Dr White and Dr Brooks in June 2011. It was then that DQT was confirmed by ultrasound. The retrospective diagnosis back to 14 January 2011 was made against the background of the same or similar symptoms having occurred, intermittently, between their onset on 14 January 2011 and the attendances upon the doctors in June 2011. 51 Ground 1 seeks to establish itself by reference to the absence of evidence other than the fact of employment on 14 January 2011 'in isolation'. However, the learned arbitrator was not required to just consider the mere fact of employment on 14 January 2011 in isolation. Rather, the learned arbitrator was entitled to consider the whole of the evidence before him, including the whole of the medical evidence and the whole of the period under review. 52 On this basis, there was: (a) Mr Wright's evidence of his work duties performed by him before and on 14 January 2011; (b) Mr Wright's evidence of the onset of his symptoms on that date; (c) medical evidence of the fact of the complaint to Dr Patel on 14 January 2011 and his record thereof; (d) Mr Wright's evidence of the symptoms suffered by him on 14 January 2011 having recurred intermittently thereafter until June 2011, when he was examined by Drs Van Reenen, White, Brooks and Nguyen; (e) medical evidence of the confirmation of DQT from ultrasound examination; and (f) medical evidence that DQT can be caused by, and become symptomatic from, repetitive trauma or overuse in the kind of work performed by Mr Wright on 14 January 2011 and earlier. 53 Such evidence leads to the findings that the manual use of the controls of the loaders of the type Mr Wright was operating in his employment, particularly the Komatsu 900, could result in repetitive trauma or overuse of the kind which can cause DQT, that Mr Wright suffered physiological change on 14 January 2011 to which his employment was a significant contributing factor, and further that the same or similar symptoms flared up intermittently thereafter, including on 5 June 2011, at which time, DQT was diagnosed. From these findings, it could be inferred that, on 14 January 2011, Mr Wright suffered more of an acceleration of pre-existing DQT, rather than an aggravation of it. 54 Dealing then more specifically with Mr Lindsay's submissions, he sought to argue that the above inference should not be drawn on the basis that Dr Patel did not diagnose DQT or any aggravation or acceleration thereof on 14 January 2011. His consultation note recorded Trigger point in right forearm and wrist. Released with local. 55 Mr Lindsay submitted that there was no evidence that employment contributed to Mr Wright's physiological changes on that particular date. 56 Mr Lindsay observed that Dr Patel was the only doctor to see Mr Wright on 14 January 2011. Other doctors only became involved in June 2011 and thereafter, such that Mr Lindsay submitted there was no medical evidence to support a finding of DQT on 14 January 2011. 57 Dr White first reported that Dr Patel's: Initial diagnosis seems to be 'Intersection Syndrome'. Developed pain radial aspect right wrist when moved to use Komatsu 900 which has manual control. Resolved with ? acupuncture within two days. 58 Mr Lindsay accordingly submitted that it was equally open to say that Mr Wright had suffered intersection syndrome on 14 January 2011. 59 Mr Lindsay's submissions cannot be accepted. 60 Mr Lindsay accepted that Mr Wright suffered right wrist symptoms on 14 January 2011. Mr Wright gave uncontradicted evidence of his work for Gulfploy from 2007 and said that he first suffered right wrist and forearm symptoms on 14 January 2011, at work. He immediately attended upon Dr Patel. 61 It can be inferred from Dr White's first report above at [57] that he was not aware of Dr Patel's consultation note referred to above at [54]. 62 Dr White's first report can only have been based on what Mr Wright told him. Intersection syndrome was not a diagnosis recorded by Dr Patel on 14 January 2011. Dr White noted that such diagnosis only 'seems to' have been made. Further, Dr White's report questioned whether or not Mr Wright received acupuncture. The diagnosis suggested by Mr Lindsay of intersection syndrome was questioned by Dr White and was guesswork, based in part, on Mr Wright's lay advice to him. Treatment by acupuncture was also guesswork by either or both of Mr Wright and Dr White. Based on Dr Patel's record, acupuncture was not, in fact, the given treatment. Little or no weight can be placed on any supposed diagnosis of intersection syndrome as at 14 January 2011. Further, little or no weight can be placed on Dr Patel's failure to record DQT as at 14 January 2011. It is only known that he recorded 'trigger point'. 63 Mr Linsday also relied on Mr Ecker's comment that triscaphoid arthritis was not detected until December 2011 when Mr Wright consulted Dr Edelman. However, contrary to this comment from Mr Ecker, Dr White and Dr Brooks were aware of x-ray findings from 8 June 2011 of high grade triscaphoid degenerative changes. They still preferred the diagnosis of DQT to intersection syndrome and triscaphoid degeneration. 64 Dr Thompson said that degenerative changes in the right wrist usually give more of an aching type of sensation rather than 'the current picture', which he believed related to the DQT. He also thought that Mr Wright's work duties could well account for the type of picture with which he presented. 65 Dr Nguyen in his report said that the clinical signs and symptoms were consistent with DQT, which was confirmed by ultrasound. The complication of DQT is CRPS. However, if that condition had been present as at August 2011, then, surely Dr Nguyen would have become aware of it. 66 There was an initial improvement in Mr Wright's pain level following surgery by Dr Nguyen, but it worsened after Mr Wright's return to work on 7 October 2011. There was then some further change which Mr Nguyen could not explain. However, the change was related to the 14 January 2011 incident. 67 Dr Thompson considered the deterioration in Mr Wright's condition following DQT surgery on 5 August 2011, or at least following his return to work in October 2011, and said it was unusual. He suggested the cause of such deterioration may be the formation of a neuroma in the scar in surgery and some recurrence of DQT. 68 Dr White did not recall there being any skin or temperature changes or symptoms in June 2011 consistent with CRPS and as the learned arbitrator found, this therefore limited the presence of CRPS as being a mere possibility of the source of pain in January or June 2011. 69 Mr Lindsay also accepted that he could not contradict Dr Hayes' opinion that Mr Wright's symptoms were caused whilst he was working, that the CRPS began on 14 January 2011, that it was directly related to his work and that the CRPS is a direct result of his work and incapacity. Mr Lindsay simply placed no reliance on Dr Hayes' opinion. 70 The learned arbitrator was quite entitled to accept the opinions of Dr White, Dr Brooks, Dr Thompson and Dr Nguyen. His finding is consistent with their expert opinions. 71 The learned arbitrator's finding is also consistent with the view expressed by Dr Hayes, even though his diagnosis was CRPS, rather than DQT. Further, Mr Ecker did not rule out the presence of DQT. 72 Mr Lindsay relied upon the report of Mr Ecker, who referred to Dr Edelman's findings in December 2011 of triscaphoid degeneration. Mr Ecker noted that the DQT surgery had not alleviated Mr Wright's DQT symptoms and said that: Based on this issue it would appear that his predominant problem was triscaphoid joint arthritis. 73 However, it is the fact that surgery by Mr Ecker in respect of the triscaphoid joint arthritis also failed to relieve Mr Wright's symptoms. To follow Mr Ecker's line of reasoning, the arthritis was not Mr Wright's 'predominant problem'. 74 The learned arbitrator was able to reject Mr Ecker's opinion that the cause of Mr Wright's symptoms was not DQT by reason that the surgery performed by Dr Nguyen on 5 August 2011 did not resolve Mr Wright's symptoms as outlined above. In any event, Mr Ecker was equivocal, reporting there were two possible interpretations for Mr Wright's symptoms which both assumed the existence of DQT i.e, that he did have an associated de Quervain's tenosynovitis which was asymptomatic and masked his triscaphoid joint arthritis or that he did not have symptomatic de Quervain's tenosynovitis and it obscured his underlying triscaphoid joint arthritis. 75 Mr Ecker did not report as to whether or not Mr Wright's work caused his DQT to became symptomatic. Given his diagnosis of triscaphoid joint arthritis, the learned arbitrator properly found that to be understandable. However, he also properly observed that Mr Ecker conceded the possibility of work causing DQT to be open. Mr Ecker did not rule it out. 76 Criticism was made by Mr Lindsay of the learned arbitrator's interpretation of the history obtained by Mr Ecker from Mr Wright. This was to the effect that Mr Ecker had said Mr Wright reported to Mr Ecker the gradual onset of his symptoms to 6 June 2011, which had not settled since 14 January 2011, which Mr Ecker said, is consistent with arthritis in that it may not resolve after becoming symptomatic and symptoms may increase. In fact, Mr Wright's evidence was of intermittent symptoms and this was evidence which the learned arbitrator was entitled to accept after hearing from Mr Wright. Indeed, Mr Lindsay conceded the intermittent nature of Mr Wright's same or similar symptoms after January 2011. 77 Further, Mr Ecker linked Mr Wright's operation of a Caterpillar loader on 5 June 2011 to the onset of symptoms on that date. The learned arbitrator found it to be an open question as to whether Mr Ecker's opinion regarding causation of arthritis, or DQT, would remain if the requirements for operating a Komatsu loader were known by him. 78 The learned arbitrator also observed that if the surgery on 5 August 2011 caused Mr Wright's arthritis to become symptomatic, so as to add to his symptoms and complex presentation, concerning which he made no finding, then the injury on 14 January 2011 nevertheless continued to be a material cause of Mr Wright's ongoing incapacity. Mr Lindsay accepted that the DQT contributed to a significant degree to Mr Wright's incapacity for work, even if there is arthritis. 79 Mr Lindsay also claimed support from Dr Thompson's report responding to questions as follows: 5. Do you consider that Mr Wright has a pre-existing or underlying condition? I am not at all sure of the relevance of the degenerative changes in the right wrist. Certainly, the degenerative changes noted usually give more of an aching type of sensation rather than the current picture. 6. Do you consider that Mr Wright suffered an aggravation to a pre-existing or underlying condition? I do not consider that Mr Wright suffered an aggravation of a pre-existing or underlying condition. 80 Mr Lindsay sought to say that by these answers, Dr Thompson opined that Mr Wright did not suffer an aggravation of a pre-existing or underlying condition, being DQT. Mr Lindsay submitted that if Dr Thompson thought Mr Wright suffered an underlying DQT, then he would have said so. However, Dr Thompson's report contradicts this as set out below at [91]. Mr Lindsay did not seek to clarify this issue with Dr Thompson at the arbitration. 81 The learned arbitrator found that Dr Thompson's answer to question 6 related to his answer to question 5 regarding degenerative changes. He was entitled to do so absent any evidence to clarify his report. 82 None of the learned medicos who supported the diagnosis of DQT were specific as to the length of time it was likely to have been present asymptomatically prior to the occurrence of pain on 14 January 2011. That however, is not an issue in terms of Mr Wright's claim for workers' compensation because the learned arbitrator found that there was some physiological change, however subtle, which became symptomatic, on 14 January 2011, such as that referred to by Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1983) 66 FLR 41 as follows: 1. The question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose in the course of the relevant employment. The questions have not always been kept distinct: Commonwealth v Hornsby (1960) 103 CLR 588 at p 597 per Fullagar J. 2. The expression personal injury by accident is a compound one. It is not necessary to show, first, that something to be described as an accident happened and secondly, that something else, namely an injury, was brought about or caused by that accident: Fenton v Thorley & Co Ltd (1903) AC 443, Hetherington v Amalgamates Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 30 per Windeyer J at p 40. 3. It is no longer necessary to prove that some external event or some action of the worker caused a sudden physiological change to happen when it did. That necessity arose from the requirement to establish that injury by accident had arisen out of and in the course of the employment: James Patrick & Co Pty Ltd v Sharpe (1955) AC 1; The Commonwealth v Ockenden [1958] HCA 37; (1958) CLR 215 at p 222. 4. Personal injury by accident may exist where there is no more than an actual internal physical injury such as the rupture of an aneurism or of an oesophagus, not attributable to any external injury but resulting from some force or pressure exerted within the body: Clove, Clayton & Co Ltd v Hughes, Kavanagh v The Commonwealth [1960] HCA 25; (1959 – 1960) 103 CLR 547. 5. Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre-disposing physical condition. The employer must take the worker as he finds him: The Commonwelath v Hornsby per Fullagar J at p 597. 6. A worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment: The Commonwealth v Ockenden at p 224. 7. Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident: The Commonwealth v Hornsby per Fullager J at p 597. 8. Personal injury by accident arises in the course of employment so long as it occurs while the worker is performing his duties or doing something incidental to the actual performance of those duties, or, put another way, where he is engaged in his employment. There need be no causal connection between the injury and the employment: Kavanagh v The Commonwealth, Weston v Great Boulder Gold Mind Ltd. 9. The traditional view that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment cannot be pressed beyond the case of physiological change which is produced by the development of a progressive disease: Kavanagh v The Commonwealth per Dixon J at p 555. 83 The learned arbitrator was therefore able to find that the physiological change suffered by Mr Wright on 14 January 2011 was more of an acceleration of the pre-existing disease ie, a quickening or hastening of the development of DQT rather than an aggravation i.e., an increase in the intensity, severity, gravity or seriousness of it, although the latter could not be ruled out, but clearly the cause of pain was one or the other. Mr Wright's incapacity and need for medical treatment resulted from the physiological damage on 14 January 2011. It was also open to the learned arbitrator to find that Mr Wright's employment was a significant contributory factor. 84 For the reasons outlined above, the learned arbitrator was able to not accept the opinions of Mr Ecker and Dr Hayes. Ground 2 has not been made out. 85 Grounds of appeal 1 and 2 do not involve questions of law.
Appeal grounds 3, 4, 5 and 6 86 These grounds can be conveniently dealt with together. 87 Ground 3 complains that the learned arbitrator was wrong to find that it could not be said that the entire period of Mr Wright's employment with Gulfploy contributed to his incapacity. 88 Ground 4 complains that it was not reasonably open to the learned arbitrator to infer that Mr Wright's DQT had only been present for weeks or months, rather than years, and to thereby exclude the whole of Mr Wright's employment with Gulfploy as being a contributor to his DQT. 89 Ground 5 is expressed in the alternative to grounds 3 and 4 in that the learned arbitrator did not consider s 5(a) or s 5(c) of the Act for the purpose of the indemnity/contribution sought by CGU against Allianz and ground 6 complains that in consequence of the errors in grounds 3, 4 and 5, the arbitrator failed to properly exercise his powers to determine the indemnity/contribution application. 90 The questions of law asserted with respect to grounds of appeal 3, 4, 5 and 6 appear to be those questions numbered 1, 4 and 5 above. 91 As to appeal grounds 3 and 4, the learned arbitrator found that Mr Wright's DQT was likely to have been present, asymptomatically, for a matter of weeks or months, rather than years, prior to 14 January 2011. Mr Lindsay's submission was that this is contrary to the opinion of Dr Thompson who said, variously: … the mechanism of operation of the levers on the hydraulic type of bucket mechanism could well account for this type of picture (ie, DQT). The first symptoms of De Quervain's syndrome in this man's right wrist were sustained on 14 January 2011. Employment is a substantial contributing factor to the De Quervain's Tenosynovitis. The continuous use of the hydraulic levers probably caused this De Quervain's syndrome. He had been doing this type of work for about 4½ years before the alleged injury. It is unlikely to have happened spontaneously. I feel that the use of the hand levers on the hydraulic loaders contributed. If he had not been at work, it would not have happened. 92 Mr Lindsay argued that Dr Thompson was supporting a claim that the entire four and a half years of Mr Wright's employment with Gulfploy from 18 June 2007 substantially contributed to his DQT on 14 January 2011 and that this is consistent with the learned arbitrator's finding that DQT results from repetitive overuse. 93 It is the fact that Mr Wright operated loaders of all shapes and sizes during his employment from commencement in June 2007 until 5 June 2011. However, the evidence was that Mr Wright was not only operating hydraulic loaders during that entire four and a half years, but he also performed other duties. Further, the Komatsu 900 only came into use in November or December 2009. The Caterpillar loader was easier to operate. In addition to this, Mr Wright drove a water truck between February and August 2010. 94 On this basis, it cannot necessarily be said that the entire period of Mr Wright's employment with Gulfploy contributed to his DQT. In any event, following Wheeler JA from Allianz Australia Insurance Ltd v Peters and Brownes Group [2005] WASCA 195 [32], there can be no such apportionment between CGU and Allianz unless there was more than one disability. Here, the only disability from which Mr Wright suffered was an acceleration of DQT on 14 January 2011. The intermittent symptoms he suffered thereafter were of the same or a similar nature and resulted in him ceasing work on 5 June 2011 after a further relapse. CGU was the on risk insurer at the relevant time on 14 January 2011, such that there is nothing to apportion against Allianz. 95 It is also to be observed that Dr Thompson's evidence outlined above is lacking in detail as to DQT prior to 14 January 2011. He reported that work was a substantial contributing factor and that Mr Wright had done such type of work for four and a half years before the first symptoms were sustained on 14 January 2011. However, this evidence falls short of establishing the existence of DQT for any specific period prior to 14 January 2011 or indeed, prior to 1 September 2009 when Allianz was at risk. The 'disability' referred to by Wheeler JA above first manifested itself on 14 January 2011. Further, none of the medical practitioners was asked to provide any oral evidence before the arbitrator as to the existence or otherwise of DQT prior to 14 January 2011. On Mr Wright's lay evidence, he was not disabled before 14 January 2011. 96 There was no evidence, and it simply could not be assumed as a matter of common sense, that the physiological change which occurred on 14 January 2011 was the culmination of Mr Wright's entire period of employment. The evidence did not support ground 3. It must fail. It does not involve a matter of law. 97 As to ground 4, the onus of proving when Mr Wright's DQT was likely to have been present, prior to 14 January 2011, fell to Gulfploy through its insurer CGU. Certainly, for any asymptomatic condition to have become symptomatic, some physiological change must have occurred. That occurrence was on 14 January 2011. There was no medical evidence to suggest if or when the asymptomatic symptoms had begun earlier. There was no evidence of any acceleration or aggravation of DQT prior to 14 January 2011. The evidence certainly did not suggest any asymptomatic symptoms prior to 1 September 2009. Dr Thompson's evidence above at [61] does not go that far. There was no evidence linking Mr Wright's DQT to his period of employment from 18 June 2007 to 1 September 2009 when Allianz was Gulfploy's workers' compensation insurer. 98 Appeal ground 4 must fail. It does not involve a matter of law. 99 Further, as to ground 5, for the reasons already advanced, it need only be said that once the learned arbitrator made findings of liability against Gulfploy under s 5(d) of the Act, there was then no need for him to consider the application, if any, of s 5(a) and s 5(c), either in terms of the claim made by Mr Wright or in any indemnity/contribution proceedings between CGU and Allianz. This ground does not involve a question of law. 100 As grounds 3, 4 and 5 have failed, so too must ground 6. It does not involve a question of law.
Conclusion 101 Finally, as discussed at the hearing of this appeal, it is undisputed that Mr Wright was working without restriction or impediment until 14 January 2011. For the first time, he then reported the symptoms in his right wrist and forearm which had occurred during that shift. Those same or similar symptoms recurred thereafter on an intermittent basis. Ultimately, he was required to stop work by reason of a further recurrence on or about 5 June 2011. He was then diagnosed with DQT. His medical advisors referred him for surgery in respect of DQT. He then briefly returned to work, but symptoms returned and he ceased work. Following medical advice, he then underwent surgery in respect of triscaphoid arthritis. 102 On the evidence, the learned arbitrator was entitled to find that arthritis was not an impediment to work prior to 5 June 2011. Surgery for the arthritis did not improve Mr Wright's condition. Any CRPS is not likely to have occurred on 14 January 2011, but it may have occurred subsequent to the surgery on 5 August 2011. 103 The inability to work remains. Whatever the true diagnosis is, Mr Wright did not suffer from it prior to 14 January 2011. He was not disabled prior to this date. He kept on at work as best he could until 5 June 2011. He returned to work briefly in October 2011, but could not continue. He has followed the advice of not only his own doctors, but also those to whom he has been referred by Gulfploy and CGU. In the end, his position is that his symptoms have prevented him from working since October 2011 and he is now unable to work. He is entitled to his workers' compensation and statutory allowances. Mr Wright's incapacity can only be attributed to his work and the disability he suffered on 14 January 2011. 104 Nothing has been shown on appeal to attach any liability to Allianz in the contribution proceedings. 105 The grounds of appeal do not raise any questions of law. Even if it could be said that the learned arbitrator made factual errors in his findings or that some of his factual findings are doubtful, those findings are not errors of law, as set out by Murphy JA in Catholic Education Office at [55]. 106 Leave to appeal should be refused and the appeal must be dismissed.
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