Hawker Pacific Pty Ltd v Lang
[2015] WASCA 256
•22 DECEMBER 2015
HAWKER PACIFIC PTY LTD -v- LANG [2015] WASCA 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 256 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:102/2014 | 15 JUNE 2015 & FINAL WRITTEN SUBMISSIONS 30 NOVEMBER 2015 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 22/12/15 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | HAWKER PACIFIC PTY LTD MARY COLLEEN LANG |
Catchwords: | Workers' compensation Respondent suffered compensable injury in 2007 Further alleged injury in 2009 No claim for compensation made for 2009 injury Claim by respondent for expenses of left wrist fusion surgery Whether arbitrator erred in finding necessary connection between 2007 injury and proposed wrist fusion surgery No evidence of any connection Proceedings before arbitrator not conducted on basis that 2009 injury was part of respondent's claim Need for adequate explanation of medical terminology |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 254, cl 17(1) of sch 1 |
Case References: | Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HAWKER PACIFIC PTY LTD -v- LANG [2015] WASCA 256 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
MARY COLLEEN LANG
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
Citation : HAWKER PACIFIC PTY LTD -v- LANG [2014] WADC 104
File No : APP 6 of 2014
Catchwords:
Workers' compensation - Respondent suffered compensable injury in 2007 - Further alleged injury in 2009 - No claim for compensation made for 2009 injury - Claim by respondent for expenses of left wrist fusion surgery - Whether arbitrator erred in finding necessary connection between 2007 injury and proposed wrist fusion surgery - No evidence of any connection - Proceedings before arbitrator not conducted on basis that 2009 injury was part of respondent's claim - Need for adequate explanation of medical terminology
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 254, cl 17(1) of sch 1
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr J P Wilson
Respondent : Mr B L Nugawela
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : Shine Lawyers
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
1 JUDGMENT OF THE COURT: This is an appeal from a decision of Eaton DCJ in the District Court refusing the appellant leave to appeal from a decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
2 The relevant question before the arbitrator was whether the expenses the respondent would incur in undergoing partial wrist fusion surgery were 'reasonable expenses' within the meaning of cl 17 of sch 1 of the Act. The arbitrator found that they were and ordered the appellant to pay those expenses. The appellant sought leave to appeal to the District Court.
3 The primary judge found that of the seven grounds of appeal, only two involved a question of law. Accordingly, pursuant to s 247 of the Act, no right of appeal lay in respect of the other five grounds. In any event, his Honour concluded that none of the appellant's grounds of appeal had been made out. He accordingly refused leave to appeal.
4 The appellant contends that in doing so the primary judge erred. The appeal from his Honour's decision must relate to a question of law and the appellant requires leave to appeal: s 254 of the Act.
Background
5 On about 4 October 2007, the respondent was injured while employed as an administrative assistant by the appellant (2007 injury). On 5 November 2009, the respondent claimed workers' compensation and the appellant accepted liability for the injury. The injury was described in the respondent's claim for workers' compensation as 'left ulnar nerve damage'as a result of 'keyboard operating'. The respondent said the initial symptoms were in the little and ring finger in her left hand and later she experienced symptoms in the left wrist.
6 Subsequently, the respondent alleged that she had suffered two further work related injuries. First, the respondent said that, in July 2009, she injured her left wrist when hole-punching a large number of documents (2009 injury). The respondent did not make a workers' compensation claim in respect of that injury. Second, the respondent said that, on 10 June 2010, she injured her left arm when she tripped on an uneven walkway (2010 injury).
7 In February 2011, the respondent made a workers' compensation claim in respect of the 2010 injury. The appellant disputed liability. The respondent applied for determination of the appellant's liability and for payment of medical expenses and other statutory allowances in relation to the injury. The respondent also applied for payment of statutory expenses in relation to the 2007 injury, and in particular, for an order that the appellant pay the expenses of left wrist fusion surgery which the respondent said was reasonably required for treatment of the 2007 injury.
8 The respondent's application in relation to the 2010 injury was dismissed on 16 July 2013.
9 In relation to the 2007 injury, the appellant disputed that it was liable for the cost of the left wrist fusion surgery on the ground that it was not a reasonable expense. The appellant contended that the respondent did not require any further treatment for the 2007 injury and that her ongoing symptoms were not causally related to that injury.
10 On 24 December 2013, Arbitrator Powles found that the need for the surgery was a result of the 2007 injury and that the expenses of it were 'reasonable expenses' under cl 17 of sch 1 of the Act. The arbitrator ordered the appellant to pay those expenses.
The reasons of the arbitrator
11 The arbitrator found that within two weeks of commencing work with the appellant in August 2007 the respondent lost feeling in her left little finger and ring finger. She subsequently underwent nerve conduction tests which showed that she had mild ulnar neuropathy at the left elbow [12]. In July 2009, after carrying out an administrative task that involved hole-punching hundreds of pages, the respondent began to experience pain in her left wrist. The pain increased and had continued since that time. In October 2009, the respondent was diagnosed with cubital tunnel syndrome and ulnar nerve impaction [13]. The respondent underwent surgery in 2010 and 2011 and, after initially making good progress, the respondent felt her condition had deteriorated and that she had more pain and wrist instability [14]. Proposed surgery to fuse the wrist did not proceed because the appellant's insurer did not approve payment of it [15]. The arbitrator noted that the respondent's evidence was that she had continued to have pain in her left wrist and was very debilitated by it [16].
12 Having reviewed the medical evidence, the arbitrator identified the issues in the case as being whether the respondent's current condition and need for surgical treatment resulted from the 2007 injury, and whether the costs for wrist fusion were 'reasonable expenses' [44]. In relation to the former, the arbitrator found that the causal link was established:
The evidence establishes that prior to suffering the injury in October 2007 the applicant had no history of any wrist problem. She was first diagnosed by Mr Ecker with left wrist ulnar carpal impaction in December 2009, when he noted that she had 'typical pain on weightbearing on the dorsiflexed wrist'. By letter dated 8 January 2010 Mr Ecker gave his opinion that her work duties had precipitated an underlying asymptomatic syndrome to become symptomatic. Thus the causal relationship between her employment and her condition was established and it was accepted that she had suffered an injury.
Mr Ecker has been [the respondent's] treating specialist since that time. He has performed surgery and reviewed her progress. He has made a diagnosis of wrist instability arthroscopically. He has reported her complaints of pain in the wrist in December 2009, in April 2011 and since that time. The reports of Mr Ecker support a finding that the compensable injury is a material contributing cause of her current condition. On a common sense evaluation I am satisfied there is a clear chain of causation. I find that [the respondent's] wrist instability and pain for which the proposed treatment is wrist fusion surgery, results from the compensable injury [47] - [48]. (emphasis added)
13 The arbitrator expressed herself satisfied that there was a clear chain of causation and that the respondent's wrist instability and pain, the treatment for which was the proposed wrist fusion surgery, resulted from the 2007 injury [48], [84].
14 The arbitrator also found that the costs of the surgery were 'reasonable expenses' within the meaning of cl 17 of sch 1 of the Act.
The appeal to the District Court
15 The appellant sought leave to appeal from that decision to the District Court. Pursuant to s 247 of the Act, leave could not be granted unless a question of law was involved. It was not in issue that an appeal 'involves' a question of law when 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 [20].
16 The primary judge found that only two of the grounds of appeal involved a question of law and both were without merit. His Honour refused leave to appeal and dismissed the appeal.
Reasons of the primary judge
17 There were initially six grounds of appeal before the primary judge. At the hearing of the appeal, the appellant was given leave to rely upon a further ground (ground 1A).
18 The appellant's first ground was that the arbitrator's reasons for deciding the respondent's need for surgery arose from the 2007 injury were inadequate. The primary judge rejected that ground, concluding, in effect, that it was apparent from the arbitrator's reasons that her finding was based on her acceptance of the evidence of Mr Ecker (a hand, wrist and elbow micro surgeon) [20].
19 Ground 1A alleged that the finding that the need for surgery arose from the work accident on 4 October 2007 was 'unsupported by any evidence'. Although advanced as simply another way of characterising the first ground, it was, as the primary judge observed, a quite different ground [23].
20 In support of ground 1A, the appellant contended that the evidence revealed that the respondent had suffered two distinctly different injuries: a neurological problem involving the ulnar nerve at the left elbow, which was causally related to the 2007 injury, and a mechanical or skeletal problem being the left ulnar carpal impaction, which was a distinct injury and causally related to the 2009 injury, not the 2007 injury.
21 The primary judge declined to undertake a complete survey of the evidence before the arbitrator as he considered to do so would be to conduct a rehearing of the matter and that was not required on an appeal of this kind [34]. His Honour found, however, that ground 1A was without merit [35]. His Honour considered there was clearly evidence before the arbitrator, predominantly but not exclusively in the evidence of Mr Ecker and Mr Silbert (a neurologist), to support the finding of a causal connection between the events of October 2007 and the proposed surgery. There was, his Honour added, 'evidence before the arbitrator, which she accepted, to support the conclusion that there had been a continuum of related symptoms and pathology from about October 2007 to the present' [35].
22 The primary judge considered that the other grounds of appeal - which he described compendiously as alleging error by the arbitrator in failing to consider various individual pieces of evidence, failing to take into account relevant considerations, or misconstruing medical opinion - were attempts to attack findings of fact under the guise of errors of law [36]. His Honour was not persuaded that those grounds, even if proved, would amount to errors of law. He went on to say that, in any event, he was not persuaded that the arbitrator did misconstrue evidence, fail to take evidence into account or fail to consider evidence. His Honour concluded that those grounds must fail [39].
23 The appellant has appealed to this court from that decision. The respondent in turn has relied upon a notice of contention to support the judgment of the primary judge.
The grounds of appeal
24 The appellant contended that the primary judge erred in law in:
1. failing to undertake a real review of the evidence relevant to the grounds of appeal;
2. finding that the arbitrator provided sufficient reasons for her finding that the need for surgery was causally related to the compensable injury of 4 October 2007; and
3. finding that the arbitrator's findings that the need for surgery was causally related to the 2007 injury was supported by the evidence.
Applications for leave to appeal to this court
25 Section 254 of the Act provides:
Under the District Court of Western Australia Act 1969 section 79, an appeal may be made to the Court of Appeal in respect of a judgment, order or determination in proceedings in the District Court under this Part but -
(a) the appeal must relate to a question of law; and
(b) leave to appeal must be obtained from the Court of Appeal.
26 So, the appellant's appeal must relate to a question of law and the appellant must obtain leave to appeal from this court. There is no appeal as of right.
27 This court's power to grant leave to appeal under s 254 of the Act is conferred in general terms. The power is not restricted or qualified except that the appeal must relate to a question of law. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. See Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230 [73].
The disposition of the appeal
28 The gravamen of the appellant's case on appeal was that the primary judge erred in rejecting its contention that there was no evidence to support the arbitrator's finding that the need for surgery was causally related to the 2007 injury (ground 1A of the grounds of appeal below). The absence of such evidence, the appellant argued, was not apparent to the primary judge because he did not, as he was required to do, undertake a real review of the evidence before the arbitrator. And the arbitrator's reasons for decision were necessarily inadequate, it was submitted, because there was no evidence before the arbitrator that supported the finding.
29 The appellant's contention that there was no evidence which could support the finding of fact of the arbitrator relates to a question of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [91]. The substantive questions that arise are therefore, first, what was the required connection between the proposed surgery and the 2007 injury in order for the surgery to be a 'reasonable expense' for the purposes of cl 17 of sch 1 of the Act; and, secondly, was there any evidence of that connection.
30 In relation to the first question, the arbitrator proceeded on the basis that for the purposes of cl 17 of sch 1 the proposed surgery must 'result from' the 2007 injury, and that it will do so if the injury was a material contributing cause of the respondent's condition and hence of her need for the surgery [46]. That proposition appears to have been common ground before the arbitrator and it seems the case was argued on that basis. No issue was taken with it before the primary judge or on this appeal.
31 After the appeal was heard this court delivered judgment in Napier.
32 In Napier, Buss JA (Newnes JA substantially agreeing) held that the required connection, for the purposes of cl 17(1) of sch 1, between a worker's 'injury' (as defined in s 5(1) of the Act), on the one hand, and the relevant medical or surgical treatment, on the other, is as follows.
33 The relevant medical or surgical treatment must be by a medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of:
(a) the 'injury' (as defined in s 5(1) of the Act) of the worker which is compensable under the Act; or
(b) a disability that is wholly or partly caused by or attributable to the compensable 'injury'; or
(c) any symptoms or effects wholly or partly caused by or attributable to the compensable 'injury' or a disability within par (b) [108].
34 Also, in Napier, Buss JA (Newnes JA substantially agreeing) held that expenses incurred or likely to be incurred in respect of medical or surgical attendance or treatment will be 'reasonable' expenses, within cl 17(1) of sch 1, if:
(a) it was or is reasonable, in all the circumstances, for the relevant medical or surgical attendance or treatment to be given, provided or undertaken; and
(b) the amount of the expenses incurred or likely to be incurred was or is reasonable in all the circumstances [113].
35 The reasonableness of expenses incurred or likely to be incurred will in each case involve a question or questions of fact [114].
36 After this court delivered judgment in Napier, we gave the parties to this appeal liberty to make supplementary written submissions in relation to the impact of that decision on this appeal. The appellant and the respondent took advantage of that liberty and filed submissions.
37 The second question we have identified is whether there was any evidence of the requisite connection between the proposed surgery and the 2007 injury. To resolve that question it is necessary to canvass the medical evidence in some detail. A number of medical reports were admitted into evidence. They included reports by Mr Ecker, the treating surgeon; Mr Allison, a hand surgeon appointed by the appellant's insurer; Dr Kennedy, a medico-legal consultant; and Dr Silbert, a neurologist.
38 Before turning to the medical evidence, it is necessary, however, to observe that one of the difficulties with that evidence is that a good deal of it is expressed in medical terms that remained unexplained. None of the doctors gave oral evidence and it appears that the solicitors on each side simply accepted the medical reports they received without seeking any further clarification of the terminology used in them. As a result, the relevance of, and differences between, the various pathologies referred to in the medical reports, and their interrelationship (if any), remain to a layperson at best obscure. In that respect, matters that could, and should, have been followed up to obtain explanations from the doctors that a layperson could understand were not pursued. On the hearing of the appeal, counsel acknowledged that a number of the terms used and conditions described in the medical reports were unexplained in the evidence and that they were unable to explain them. The nature of many of them was also beyond the expedient of resorting to a standard medical dictionary. It hardly needs to be said that that is a highly undesirable situation that should not occur. We must, nevertheless, do the best we can with what we have.
39 The first of the relevant reports was a report of Dr Silbert, dated 30 November 2009. In that report, Dr Silbert said he had reviewed the respondent for an EMG study on 6 October 2007 and again on 13 October 2009. The respondent gave Dr Silbert a history of more than two years aching discomfort along the ulnar aspect of the left forearm with a numb feeling in the left fifth digit and at times the fourth digit. She said the symptoms tended to fluctuate and were associated with a feeling of weakness in the hand. Dr Silbert diagnosed a left ulnar neuropathy at the elbow. He said the EMG findings indicated that the ulnar neuropathy was acute when first identified in October 2007 and by October 2009 had become chronic. He considered the respondent's employment to be the main contributor to her condition.
40 Mr Ecker's first report is dated 2 December 2009 and was based upon an examination of the respondent in November 2009. In the report Mr Ecker noted that the respondent had been referred to him for an opinion regarding her ulnar nerve symptoms, as those had not resolved since she had seen Dr Silbert. He said that in fact he had diagnosed the respondent as having two conditions - left cubital tunnel syndrome with compression of the ulnar nerve at the elbow, and left wrist ulnar carpal impaction, the second of which he described as a coincidental finding. He recommended endoscopic release of the ulnar nerve in the cubital tunnel. He also recommended an ostectomy of the ulna and arthroscopic debridement of the wrist joint to resolve the ulnar carpal impaction.
41 In a subsequent report, dated 8 January 2010, Mr Ecker said his initial impression was that the ulnar carpal impaction was not related to the respondent's work. However, on 8 January 2010 the respondent had told him that at the time of the onset of her symptoms she was involved in punching holes in 700 to 800 pages for procedure manuals and had used her left hand to do the work. Mr Ecker considered it was reasonable to infer that the work had precipitated an underlying asymptomatic ulnar carpal impaction syndrome to become symptomatic.
42 Mr Ecker said that the respondent's history of working with her elbows in a flexed position precipitated the development of her ulnar nerve symptoms. Working in this position for a prolonged period made more likely the manifestation of an underlying predisposition as symptomatic cubital tunnel syndrome.
43 The ostectomy would involve removing a small piece of bone from the ulnar, shortening the ulnar and internally fixing it. This would decompress the ulnar side of the wrist. A left elbow endoscopic carpal tunnel release would alleviate the respondent's left cubital tunnel symptoms.
44 The ostectomy was carried out on 16 January 2010, together with the surgical procedure on the ulnar nerve at the elbow. As appears from his reports of 16 January 2010 and 20 April 2010, at the time of the surgery Mr Ecker found the respondent had a perilunate ligament laxity of the left wrist with a dynamic scapholunate instability.
45 In a report dated 7 April 2010, Mr Ecker reported, relevantly, that the ulnar carpal impaction had resolved after the ostectomy. He said the respondent's complaint of ulnar-sided wrist pain appeared to be related to the pisiform triquetral joint on the insertion between the flexor carpi ulnaris and the pisiform bone. He recommended that nothing should be done for the time being but to 'wait and see'.
46 Mr Ecker provided a further report dated 5 August 2010. He said that the respondent's initial response to the January 2010 surgery had been excellent, with resolution of the ulnar-sided carpal wrist pain and restoration of normal function in the ulnar nerve (at the elbow). He noted, however, that the respondent had reported that in about June 2010 she had fallen at work and landed on her left upper limb. She complained of numbness in the ulnar nerve distribution. He said that no further surgery was required at that time and it should be left to see how her symptoms developed.
47 In a report dated 20 April 2011, Mr Ecker noted that the respondent was still complaining of pain in her wrist. He suggested three possible causes, two associated with ulnar carpal impaction and another with a form of perilunate instability. He said he would examine the wrist arthroscopically. Mr Ecker did not suggest the likely cause or origin of a perilunate instability.
48 On 7 May 2011, Mr Ecker performed arthroscopic surgery on the respondent's left wrist. He removed the plate and the screws he had inserted when carrying out the ostectomy on 16 January 2010. He also found rotatory scapholunate laxity, dynamic triquetrolunate separation, stable triangular fibrocartilage and triscaphold joint reaction. Mr Ecker recorded in an operation note dated 7 May 2011 that further treatment of the respondent's wrist would depend on the level of symptoms and disability she experienced.
49 Mr Ecker provided a comprehensive report, dated 12 May 2012, in which he canvassed in detail the respondent's course of treatment up to that time. It is unnecessary to canvass the report in full. Suffice it to say that Mr Ecker noted that in October 2007 the respondent began to experience numbness in the ulnar border of the hand and in 2009 began to experience pain in her left wrist. He also noted that she had had electrophysiological studies performed by Dr Silbert in 2007 which had been interpreted as demonstrating a mild ulnar nerve neuropathy at the elbow level. Mr Ecker said that when he examined her in November 2009, the respondent was experiencing numbness in her left small finger and the ulnar side of her left ring finger. The pain radiated along the ulnar side of the wrist into the left forearm and the lateral side of the left elbow. He had made two diagnoses. One was 'left cubital tunnel syndrome with compression of the ulnar nerve at the left elbow'. The other was 'left ulnar carpal impaction syndrome with positive ulnar variance and characteristic features of ulnar carpal impaction on the ulnar quadrant of the lunate on the MRI scan. She has atypical pain on weight bearing of the dorsiflexed wrist and had a positive augmented ulnar carpal impaction sign'.
50 Mr Ecker reiterated that the respondent had told him her cubital tunnel compression of the ulnar nerve developed in 'August [sic] 2007' when working at a desk, her wrist pain developed in July 2009 when she was hole-punching documents, and a fall on 10 June 2010 resulted in a recurrence of her left ulnar nerve symptoms, with the loss of sensation in the small finger and the ulnar side of the ring finger. Mr Ecker said that an ostectomy and an endoscopic cubital tunnel release (in January 2010) had each led to good outcomes in the initial post-operative phase. The recurrent symptoms in the upper extremity caused by the 2010 fall had resolved with an anterior subcutaneous transposition of the ulnar nerve carried out on 3 December 2011.
51 In the report dated 12 May 2012, Dr Ecker noted that at a review on 14 April 2012 the respondent was experiencing ulnar sided pain in the left wrist which was exacerbated by any repetitive tasks using the hand. The left hand was held in a fully radially deviated position. He observed that the nature of her symptoms and the clinical findings did not fit into any recognised symptom or symptom complex.
52 In discussing his diagnosis, Dr Ecker said that the instability of the ulnar nerve which the respondent had developed 'may have been the long term sequelae of a simple endoscopic cubital tunnel release (a neurolysis of the ulnar nerve) or there may be a contributing factor from the fall when she landed on the left upper extremity. It is uncertain whether one or both of these factors were operative in the development of the instability of the ulnar nerve and the recurrent symptoms in her ulnar nerve distribution'. Dr Ecker noted that these symptoms had resolved with the anterior subcutaneous transposition of the ulnar nerve which he had undertaken on 3 December 2011. What had persisted, however, was the 'ulnar sided wrist pain'. He described the persistent active radial deviation of the wrist as having unusual features and being difficult to reconcile with the underlying pathology. Having described the pathology as 'rotary scapholunate laxity, dynamic triquetrolunate separation, stable triangular fibrocartilage and triscaphoid joint reaction', Mr Ecker continued:
As such there is an underlying laxity present in the wrist. The triquetrolunate laxity is kind of the normal spectrum of ulnar carpal impaction. In addition to this there is a possible component contributing to her symptoms from thoracic outlet syndrome. (emphasis added)
53 Mr Ecker then discussed the difficulties in diagnosing thoracic outlet syndrome and continued:
The diagnoses are complicated by periods of time where in my opinion there was a definite elaborated component to her presentation which probably was an index of a maladaptive illness behaviour response. The finding of no effective sensation and two-point discrimination in the presence of normal electrophysiological studies and muscle bulk does not fit with an underlying pathological entity. This sequence of events and the nature of the presentation make the underlying diagnostic process complex and difficult to understand.
54 Mr Ecker said there was the possibility of an operation to tighten the wrist but observed that in his experience 'this type of surgery for this type of problem in a Workers' Compensation situation rarely produces a good result'. He went on to express the opinion that 'any further surgery would not be productive'.
55 Mr Ecker did not answer directly a specific question as to whether the respondent's current and past symptoms were consistent with her explanation of the incident and the history of her complaints. However, he did not suggest that the respondent's history of injury which he had recounted was in any way inconsistent with his findings; that is, the left cubital tunnel syndrome with compression of the ulnar nerve developed in 2007 when working at a desk, and the left wrist ulnar carpal compaction developed in 2009 from hole-punching.
56 As to any future treatment or further investigations:
(a) Mr Ecker said that nothing further needed to be done in relation to the ulnar nerve;
(b) He said it was possible that in the future the respondent may require further surgery in relation to the instability in her left wrist in the form of either a limited intracarpal fusion or a total fusion.
57 Mr Ecker noted in conclusion that the respondent had a mild form of carpal instability, with the possibility that she may require further surgery at a later date on her left wrist, and that she may have a thoracic outlet syndrome, but she would not require further surgery at a later date for this syndrome.
58 On 13 September 2012, Mr Ecker referred the respondent to a psychiatrist, Dr Chiu. He observed in the referral letter that the respondent had 'elaborated non-physiological features to her presentation in terms of the symptoms, her examination and inability to reconcile some of the investigations with her clinical findings', but that she did have 'definite pathology in her left wrist', which he described as 'a dynamic scapholunate instability in the left wrist'. He told Dr Chiu that the respondent had asked him (Mr Ecker) to do something for her wrist. He asked Dr Chui to evaluate the respondent in terms of her psychological response and whether there was an underlying depressive illness.
59 The response from Dr Chui was not in the appeal papers but, on 21 November 2012, Mr Ecker wrote to the respondent's general practitioner saying that the respondent had consulted him and wanted something done about her wrist symptoms. He said that the respondent had pathology in the wrist, as identified at arthroscopy, and that her symptoms, which it appears from the letter included wrist pain, could be attributed to 'an instability in the wrist'. Mr Ecker advised that the respondent was scheduled for surgery. That surgery, it seems, did not proceed because the appellant's insurer declined to pay for it.
60 The respondent was also examined by two other doctors whose reports went into evidence, Mr Allison, a hand surgeon, and Dr Kennedy, a medico-legal consultant.
61 In a report dated 17 December 2012, Mr Allison said the respondent had a full range of wrist movements and he could think of no physical reason for the respondent's 'floppy wrist'. He considered it was not an organic problem and that there was a considerable psychological aspect to the problem. He also said he had 'some difficulty' ascribing her ulnar nerve neuropathy at the elbow and her ulnar nerve impaction syndrome to her work. In relation to the latter, Mr Allison said that ulnar nerve impaction is not an uncommon condition and 'it is a bit of a stretch to say that a one off episode of using a heavy hole punch for a day or so is going to cause or contribute to it in a significant way'. He noted that the respondent had a painful left wrist and that there was some instability in the wrist, but he did not believe those problems 'have much to do with her work'.
62 Mr Allison provided a second report of the same date in which he expressed the view that the need for surgery was not 'caused by anything that happened at [the respondent's] work on 4 October 2007 or since'. He said that he would be cautious about any benefit from surgery because of the non-organic aspects of the respondent's case.
63 The respondent was examined by Dr Kennedy on 23 September 2011. Dr Kennedy's qualifications or expertise in orthopaedics are not apparent from his report or the arbitrator's reasons. Dr Kennedy provided a report dated 8 November 2011 in which he noted that the respondent was diagnosed with left ulnar nerve neuropathy at the elbow level in 2007 after developing numbness in the fingers when working in a poor ergonomic environment. He said those symptoms continued and, in 2009, she developed problems in her left wrist and hand from punching holes in paper at work. Dr Kennedy said the respondent was diagnosed by Mr Ecker with significant problems in her left arm with a left cubital tunnel syndrome and a left wrist ulnar nerve impaction with ulnar carpal instability. Dr Kennedy noted that following surgery the respondent was progressing well until she fell at work in June 2010, which led to worsening problems in her left arm.
64 On examination, Dr Kennedy found restricted movement of the left hand at the wrist joint with some loss of sensation and noticeable instability of the left hand through flexion, extension and ulnar radial deviation. He considered the injuries to the respondent's left arm were consistent with the work place incidents she had described and that there were no obvious discrepancies between her symptom presentation and his clinical findings on examination.
65 Dr Kennedy provided a second report, dated 21 September 2012. That report was based on a clinical assessment on 25 May 2012 and a review of Mr Ecker's medical notes and reports, including a medical report said to be dated 18 August 2012 which was not in the appeal papers and is not referred to elsewhere. In his report, Dr Kennedy expressed the opinion that the respondent had carpal rotational instability and dynamic scapholunate instability. He did not refer to the respondent's history of injury but simply went on to state that the respondent 'continues to have significant problems in her wrist joint which relate directly to the occupational activities that she was performing in 2007'. There is no explanation of the reasoning which led him to the conclusion that her symptoms related directly to her 2007 activities or how that conclusion is to be reconciled with his earlier report.
66 On the appeal, counsel for the respondent contended that the appellant's assertion that there was no evidence that the need for surgery was causally related to the 2007 injury was based on a misunderstanding of Mr Ecker's reports. There were, he submitted, three pathologies identified by Mr Ecker: the ulnar nerve problem; the ulnar carpal impaction syndrome; and the instability (or scapholunate instability) in her left wrist. He argued that a distinction had to be drawn between the ulnar carpal impaction syndrome which was caused by the 2009 event and the instability in the respondent's wrist. The former had been fixed by the ostectomy. It was the instability which required the wrist fusion. The instability was symptomatic before the 2009 event and was a distinct condition which 'arose from' the 2007 event.
67 Before considering that contention, it is convenient to deal with a submission by the respondent that the arbitrator was alert to that distinction and, in particular, that [48] of the arbitrator's reasons reflects recognition of a condition of instability separate and distinct from the ulnar carpal impaction syndrome. We do not accept that submission. There is nothing, in our view, in the arbitrator's reasons which reflects recognition of such a distinction. Indeed, in our opinion it is clear that the arbitrator considered the surgery was intended to deal with wrist pain caused by the ulnar carpal impaction, which the arbitrator considered arose from the 2007 event. The arbitrator's relevant findings are set out above at [12] but it is appropriate to repeat them:
The evidence establishes that prior to suffering the injury in October 2007 the [respondent] had no history of any wrist problem. She was first diagnosed by Mr Ecker with left wrist ulnar carpal impaction in December 2009, when he noted that she had 'typical pain on weightbearing on the dorsiflexed wrist'. By letter dated 8 January 2010 Mr Ecker gave his opinion that her work duties had precipitated an underlying asymptomatic ulnar carpal impaction syndrome to become symptomatic. Thus the causal relationship between her employment and her condition was established and it was accepted that she had suffered an injury.
Mr Ecker has been [the respondent's] treating specialist since that time. He has performed surgery and reviewed her progress. He has made a diagnosis of wrist instability arthroscopically. He has reported her complaints of pain in the wrist in December 2009, in April 2011 and since that time. The reports of Mr Ecker support a finding that the compensable injury is a material contributing cause of her current condition. On a common sense evaluation I am satisfied there is a clear chain of causation. I find that [the respondent's] wrist instability and pain for which the proposed treatment is wrist fusion surgery, results from the compensable injury [47] - [48]. (emphasis added)
68 The arbitrator recorded her conclusion at [84] that she had found that the respondent's 'current condition, and need for surgery, [resulted] from the 2007 injury'.
69 It is clear, in our view, that [48] is merely a finding that the ulnar carpal impaction has continued to be the cause of the respondent's wrist instability and pain and it is that condition which requires surgery.
70 It is, however, evident that the arbitrator's findings in [47] - [48] proceed upon two critical misapprehensions of the evidence. First, while it is the case that the respondent had first experienced wrist problems in 2007, those were problems of a different kind to those to which the proposed surgery was directed. The wrist problems in 2007 were numbness of the ring finger and left little finger and were diagnosed as left cubital tunnel syndrome with compression of the ulnar nerve at the elbow. On the arbitrator's own findings, the respondent first experienced left wrist pain after the hole-punching work in July 2009. Secondly, while Mr Ecker had said in his report of 8 January 2010 that he considered the respondent's work duties had caused the asymptomatic ulnar carpal impaction syndrome to become symptomatic, he attributed that to the 2009 event, not the 2007 event. Indeed, it is evident that until informed of the 2009 event Mr Ecker did not think it was related to the respondent's work at all.
71 In our view, there was no evidence upon which it could be found that the respondent's wrist instability and pain were a result of the 2007 injury. The 2007 injury was a compensable injury. The 2009 injury was not a compensable injury and nor was the 2010 injury.
72 It appears from Dr Silbert's report of 30 November 2009 that the respondent had had symptoms of weakness in her left hand since 2007, but Dr Silbert, and Mr Ecker in his report of 2 December 2009, found that those symptoms were caused by the ulnar nerve compression at the elbow. The ulnar carpal impaction was a separate matter not mentioned by Dr Silbert and was discovered coincidentally by Mr Ecker in November 2009, as he noted in his report. At that stage, Mr Ecker did not regard the ulnar carpal impaction as being related to the respondent's work at all.
73 As we have said, in his report of 8 January 2010 Mr Ecker changed his view, but he then attributed the respondent's wrist pain to the 2009 injury, not to the 2007 injury. Contrary to the respondent's submission, there is nothing in the report of 8 January 2010 to suggest that a dynamic scapholunate instability of the respondent's left wrist was symptomatic before the 2009 event. In fact, it appears from Mr Ecker's operation note dated 16 January 2010 that the diagnosis of a scapholunate instability of the left wrist was first made when the ostectomy was carried out on 16 January 2010. Mr Ecker does not indicate the origin (if known) of that condition or whether it was then symptomatic.
74 In his report of 20 April 2011, Mr Ecker suggested, however, three possible causes of the respondent's continuing wrist pain, two associated with ulnar carpal impaction and another with a form of perilunate instability. He does not, as we have mentioned, offer any opinion as to the likely origin or cause of a perilunate instability. There is no suggestion, however, that it might be related to the cubital tunnel syndrome that was diagnosed as resulting from the 2007 injury.
75 Following the arthroscopic examination of the respondent's wrist on 7 May 2011, Mr Ecker appeared in his subsequent report of 12 May 2012 to suggest that the laxity in the respondent's wrist fell within the normal spectrum of ulnar carpal impaction, but that a thoracic outlet syndrome might be contributing to the respondent's symptoms. As we have mentioned, he observed that the diagnoses were complicated by what he considered to be 'definite elaborated components to [the respondent's] presentation' and that some of the clinical findings 'do not fit with an underlying pathological entity'. He went on to say that 'this sequence of events and the nature of this presentation make the underlying diagnostic process complex and difficult to understand'. There is no suggestion that Mr Ecker's earlier view that the respondent's continuing wrist problems were a result of the 2009 hole-punching had changed.
76 The respondent placed a good deal of reliance on the statements in Mr Ecker's letter to Dr Chiu of 13 September 2012 that the respondent 'has definite pathology in her left wrist … she has a dynamic scapholunate instability in her left wrist', arguing that it demonstrated that the respondent had always had a 'definite pathology' in the form of 'a dynamic scapholunate instability in her left wrist', and it was that condition which required the proposed surgery. In our opinion it demonstrates no such thing. The fact that the respondent had been diagnosed in January 2010 with a scapholunate instability in her left wrist falls a long way short of establishing that it had come about, or that it had become symptomatic, as a result of the 2007 injury.
77 In any event, the arbitrator based her findings on the medical reports of Mr Ecker. She noted that Mr Allison 'defers' to Mr Ecker [59]. The arbitrator did not rely on any reports from Dr Kennedy in making her findings.
78 While the arbitrator did not place any weight on the other medical evidence, we would note that Mr Allison considered the respondent's wrist problems to be unrelated to her work. In his first report, Dr Kennedy agreed with Mr Ecker's view that they were a result of the 2009 event but in his subsequent report of 21 September 2012 appears to suggest, without explanation, that they resulted from the 2007 injury. In the circumstances, we consider the latter statement to have no probative value.
79 In our opinion, there was no evidence that could support the arbitrator's finding that the 2007 event was a material contributing cause of the respondent's wrist instability and pain. There was no evidence that the cubital tunnel syndrome which was found to have been caused by the 2007 injury was related to the left wrist instability and pain with which the surgery was intended to deal. If, as the arbitrator appears to have understood, the wrist instability and pain came about as a result of the ulnar carpal impaction, then it resulted from the 2009 event. If the wrist instability and pain had some other cause there was no evidence from which it could be concluded that it resulted from the 2007 injury.
80 There was no evidence that the proposed left wrist fusion surgery to be performed by Mr Ecker was for the purpose of alleviating, remedying, curing or preventing the deterioration of:
(a) the compensable injury which the respondent suffered in 2007; or
(b) a disability that was wholly or partly caused by or attributable to the 2007 injury; or
(c) any symptoms or effects wholly or partly caused by or attributable to the 2007 injury or a disability within par (b).
81 We would uphold the third ground of appeal. It is unnecessary to make specific findings in relation to the other two grounds of appeal.
The notice of contention
82 It is necessary then to turn to the respondent's notice of contention. It was in the following terms:
A. The [primary judge] erred in law in failing, in the interests of justice, to consider and then revoke the leave acquired by the appellant (during the course of the appeal hearing) to amend its notice of appeal by adding a further Ground 1A below (now Ground 3 in this appeal).
B. Alternatively, if Ground 3 is (to be) allowed, then having regard to the way the parties conducted the hearing at WorkCover, the [primary judge] erred in law in failing to find that, in any event, the absence of a claim form for the 2009 injury did not disentitle the respondent from relevantly claiming payment for the wrist fusion surgery for the 2009 injury in the proceedings below.
83 The two grounds turn in substance upon a contention by the respondent that the hearing before the arbitrator had proceeded on both sides on the basis that the 2009 injury was a matter the arbitrator was entitled to consider as part of the respondent's claim and that no point was taken about the lack of a claim for workers' compensation by the respondent for the 2009 injury.
84 Although the grounds are contained in a notice of contention, the notice is in substance a notice of cross-appeal and the grounds are in substance grounds of a cross-appeal.
85 In relation to ground 1A, before the primary judge the respondent sought, and was granted, leave to make further submissions on the appellant's ground 1A on the basis that the respondent had been taken by surprise, having understood that ground 1A was simply a variation of the existing ground 1 rather than a substantive 'no evidence' point. In its written submissions the respondent argued that the point could not be taken by the appellant on appeal because the arbitration had been conducted by both parties on the basis that the 2009 event was part and parcel of the dispute to be adjudicated upon and a matter the arbitrator could take into account on causation. It was submitted that had the point been raised by the appellant before the arbitrator there were various steps the respondent could have taken to overcome the problem. The appellant in responsive submissions rejected the contention that the case before the arbitrator had been conducted on that basis.
86 The issue was not dealt with by the primary judge as he rejected the appellant's case that there was no evidence the need for surgery was causally related to the 2007 injury and dismissed ground 1A on that basis.
87 On the appeal to this court, the respondent's counsel advanced substantially the same arguments as he had advanced before the primary judge. We do not accept them.
88 The starting point, as the respondent's counsel acknowledged, is the application for arbitration, which appears to have been filed at WorkCover WA on 24 December 2012. In that application, the 'injury details' were given by the respondent as follows:
The [respondent] was employed as an administrator by the [appellant]. Poor ergonomics caused her an injury to her left elbow, wrist and hand in 2007. In 2008 repetitive strain compounded her problems.
89 Section O of the application form was headed as follows:
'Additional issues NOT included in the Application for Conciliation'
(The Arbitrator will advise whether these issues will be included in the scope of the arbitration of this application)
90 It was not in issue that the 2009 injury had not been included in the application for conciliation. The respondent did not include it in section O. In that section, the respondent simply inserted:
The [respondent] had a 3rd injury at work on [sic] June 2010 and further injured her left upper limb. A claim for workers' compensation was made on 16.02.11. That claim has not been accepted. The [respondent] seeks a determination of that claim on the basis that aspects of both claims cannot be resolved in isolation.
91 The first mention of a 2009 injury came in the respondent's further and better particulars of the application, filed on 21 February 2013. In those particulars, the respondent said (relevantly):
5. Essentially, the [respondent] injured her left upper limb on three occasions at her place of work. These injuries have left the [respondent] with problems to her left hand, left wrist, left elbow and left shoulder. It is not possible to determine precisely which injury has been caused by which incident. The first incident caused problems to the [respondent's] left hand. The second incident caused problems to the [respondent's] left hand, wrist and possibly her elbow. The third incident appears to have caused problems to her left elbow and shoulder. There has been a cumulative effect upon the [respondent's] left upper limb.
92 Having described the first incident in some detail, the respondent went on (relevantly):
8. There was a second incident in about July 2009 when the [respondent] repeatedly used a hole puncher with her left hand for a significant period of time. The [respondent] visited her GP again. She was referred for further tests. She was diagnosed with cubital tunnel syndrome and ulnar impaction syndrome.
9. In June 2010 the [respondent] fell at work and although she tried to protect her left upper limb she did hit her left elbow on the ground. Following on from this fall the [respondent's] problems in her hand worsened and she developed a problem in her shoulder. She was subsequently diagnosed with thoracic outlet syndrome.
10. Accordingly, although the [respondent's] problems have been cumulative since 2007, there have been three separate incidents which have exacerbated those problems. The specific incidents were in August/September - October 2007, July 2009 and June 2010.
11. Following the first incident the [respondent] was diagnosed with a mild ulnar neuropathy. Following the second incident the [respondent] was diagnosed with cubital tunnel syndrome and ulnar impaction syndrome. Following the third incident the [respondent] was diagnosed with thoracic outlet syndrome.
…
28 Accordingly, for the avoidance of doubt, the [respondent] seeks an order that the [appellant] do be liable for the consequences of all three incidents at her place of work …
93 It was common ground that the respondent had made two applications for workers' compensation, one in relation to the 2007 injury and one in relation to the alleged 2010 injury, and that she had not made an application in relation to the alleged 2009 injury. It does not appear ever to have been suggested that the wrist instability and pain was associated with the alleged 2010 injury. In any event, the respondent's application in relation to the 2010 injury was dismissed on 16 July 2013.
94 In its response, filed on 28 February 2013, to the respondent's further and better particulars, the appellant objected to the respondent's claim so far as it related to the 2009 incident:
2. The [respondent] alleged that there was a further incident, which led to pain in her left wrist in July 2009, where she was hole punching a large number of documents (the second injury). The [respondent] has not lodged a claim for this injury and as a result, the [appellant] has not provided a response on liability. There is nothing to respond to.
…
5. At the Directions Hearing on 31 January 2013, Arbitrator Powles … confirmed that the issues in dispute were:
(a) whether the fusion surgery was a reasonable medical expense with regards [sic] to the 2007 incident; and
(b) a determination of liability with respect to the third [2010] injury, together with what treatment was reasonably required.
…
7. The [appellant] submits that issues relating to the following issues have not been previously conciliated and therefore should not be subject to this current Application:
(a) Liability for the second injury;
…
8. The [appellant] will only make submissions with regards [sic] to the issues noted by Arbitrator Powles to be part of this Application on foot relating to the fusion surgery and a determination of liability for the 2010 incident including what treatment is reasonably required (if any).
95 It is evident that at the hearing before the arbitrator the respondent did not seek to rely upon the 2009 incident. It is unnecessary to canvass the transcript in detail. The following extracts will suffice.
96 At the outset of the hearing (ts P-2, 08.07.13), the arbitrator summarised the application before her as follows:
Just I suppose by way of summary, this is an application for determination of liability to pay medical expenses and other statutory expenses in respect of an injury that [the respondent] claims occurred on 10 June 2010, as well as an application for the [appellant] to pay for left wrist fusion surgery she claims is reasonably required for treatment of the injury suffered 4 October 2007.
97 Counsel for the respondent did not dispute that description of the issues.
98 In the course of the hearing before the arbitrator, the following exchange occurred:
MR NUGAWELA [counsel for the respondent]: I call [the respondent].
MS POWLES [the arbitrator]: Just before you do, what we need to do is clarify then where we're now proceeding and you say you call [the respondent]. This is in relation to the second limb of the application?
MR NUGAWELA: Yes.
MS POWLES: Which is the application for payment for surgery expenses?
MR NUGAWELA: Yes.
MS POWLES: For the October 2007 injury?
MR NUGAWELA: Yes.
MS POWLES: Okay (ts P-23 - P-24, 08.07.13).
99 In his closing submissions, counsel for the respondent did not seek to put a case based on the 2009 incident. Nor does it appear from the appellant's closing submissions that the appellant attempted to deal with a claim based on the 2009 incident. On the contrary, the appellant proceeded on the basis that the respondent's case was that the need for surgery arose from the 2007 incident. Thus, for instance, in traversing Mr Ecker's report of 12 May 2012, counsel for the appellant said:
If you look at the next page, page 25 - and this is where causation falls for the worker - you don't have Mr Ecker saying the need for surgery is caused by the initial injury, which is what they want you to find (ts P-33, 09.07.13).
100 Having then referred to a report by Mr Allison, counsel for the appellant continued:
The problem for the worker is proving, though, a case that surgery is caused by this initial injury and there's two events, one being the ergonomics, let's just call it, the desk station that you've seen some evidence about from the worker, and the second being the hole punch. I mean you're entitled to look at that and think, 'Could a need for surgery have resulted from that and those events?' Look at the medical evidence, then. Where's the medical evidence? Sure she got comp. Yes she got paid. Yes it's an accepted claim. I understand all of that, but is there a clear link? Is it clear on the medical evidence? Is there a report from Mr Ecker saying that the need for surgery is caused by the initial incident? The answer to these questions is no (ts P-34, 09.07.13).
101 The references to 'comp', getting 'paid' and the 'accepted claim' were clearly references to the workers' compensation claim for the 2007 injury. The submission, as we understand it, is that the arbitrator could not be satisfied that the need for surgery arose from the initial injury in 2007, as opposed to the alleged injury from the hole-punching in 2009.
102 In the course of his responsive submissions, counsel for the respondent said:
So you have a clear chain of causation, if you like. A worker who was completely asymptomatic, has at least two aspects of pathology that had been attended by invasive procedures, has continuing pain (indistinct) as a sequelae of one of the diagnoses associated with the original work injury, and that is simply the beginning and end of it. (emphasis added)
103 Counsel for the respondent also submitted (ts P-58, 09.07.13) that in his report of 8 January 2010 Mr Ecker had associated the respondent's ulnar carpal impaction, not with hole punching, but with working at her desk at acute angles for prolonged periods of time; that is, with the 2007 injury. (In fact, in that report Mr Ecker had concluded that it was the hole punching that had caused an underlying asymptomatic ulnar carpal impaction syndrome to become symptomatic.)
104 We are satisfied, having read the transcript of the proceedings before the arbitrator, that it was not conducted on the basis alleged by the respondent. It was never the respondent's case before the arbitrator that the need for wrist surgery arose from or was in any relevant way contributed to by the 2009 incident, and the claim was not fought on that basis. The issue before the arbitrator was whether the need for wrist surgery was a result of the 2007 injury. That was clearly the position taken by the respondent from the outset. There is no substance in either of the grounds of the notice of contention and we would dismiss it.
Conclusion
105 We would:
1. grant leave to appeal;
2. dismiss the notice of contention;
3. allow the appeal;
4. set aside the orders of the primary judge; and
5. order that:
(a) the appeal to the primary judge be upheld;
(b) the decision of the arbitrator be set aside; and
(c) the respondent's application for an order that the appellant pay the expenses of left wrist fusion surgery be dismissed.
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