Hunter New England Area Health Service v Franklin

[2007] NSWWCCPD 209

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Hunter New England Area Health Service v Franklin [2007] NSWWCCPD 209

APPELLANT:  Hunter New England Area Health Service

RESPONDENT:              Marie Franklin

INSURER:GIO General Limited (Newcastle) as agent for Treasury Managed Fund.

FILE NUMBER:  WCC3517-07

DATE OF ARBITRATOR’S DECISION:          29 June 2007

DATE OF APPEAL DECISION:  15 October 2007

SUBJECT MATTER OF DECISION:                Adequacy of evidence to support the Arbitrator’s finding of ‘injury’; adequacy of reasons; whether the Arbitrator’s determination is of an interlocutory nature; section 352(8) of the Workplace Injury Management & Workers Compensation Act 1998.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Sparke Helmore

Respondent:   Firths

ORDERS MADE ON APPEAL:  1.        The decision of the Arbitrator dated 29    June 2007 is revoked.

2.The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.

3.Costs of the proceedings before the Arbitrator on 28 June 2007 should follow the event when the matter is determined.

3.        No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 10 July 2007 Hunter New England Area Health Service (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 29 June 2007.

2.The Respondent to the Appeal is Marie Franklin (‘the Respondent Worker/Ms Franklin).

3.Ms Franklin was born on 14 July 1946 and is presently 61 years old. She was employed by the Appellant Employer for over 25 years as a hospital assistant at its Allendale Aged Care Facility. Her duties included cleaning, mopping floors, preparation and serving of meals, washing dishes and packing linen.

4.On 4 January 1997 whilst attempting to move a large desk, Ms Franklin suffered an injury to her neck, back, left shoulder and arm. There were no complaints of right shoulder or right arm symptoms at that time.

5.Ms Franklin ceased work, and underwent surgery on her left shoulder on 10 August 1997. She eventually resumed work with the Appellant/Employer on suitable duties where she remained until March 2002.

6.In 2001, Ms Franklin brought proceedings against the Appellant/Employer in the former Compensation Court being matter No. 46639 of 2001. On 20 November 2002, Consent Orders were filed in the Compensation Court in respect of 7% permanent impairment of the back, 10% permanent impairment of the neck, and 15% loss of use of the left arm at or above the elbow. Ms Franklin also received compensation pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

7.On 15 May 2007 Ms Franklin filed an ‘Application to Resolve a Dispute’ in the Commission now alleging that on 4 January 1997, she also suffered an injury to her right shoulder and arm. She sought permanent impairment compensation in respect of 18% permanent loss of use of the right arm at or above the elbow, together with further ‘pain and suffering’ compensation pursuant to the provisions of sections 66 and 67 of the 1987 Act.

8.In its ‘Reply’ filed on 23 May 2007, the Appellant Employer disputed Ms Franklin’s claim on the basis that no allegation of injury to the right arm was made at the time, nor indeed subsequently at the time of settlement of proceedings in the Compensation Court, and on the basis of certain medical evidence in its possession.

9.The matter was listed for a conciliation and arbitration hearing on 28 June 2007 when Ms Franklin gave oral evidence.

10.In an ex tempore decision delivered by the Arbitrator on that date, commencing at page 55 of the transcript, he found that “problems” with Ms Franklin’s right shoulder were causally connected to the injury she sustained with the Appellant Employer on 4 January 1997 and that as a consequence, she was entitled to submit her claim for assessment by an ‘Approved Medical Specialist’.

11.It is from this decision that the Appellant Employer seeks leave to appeal.

12.In a ‘Notice of Opposition to Appeal’ filed on 22 August 2007, Ms Franklin submits, inter alia, that the Arbitrator’s determination was of an interlocutory nature such that leave to appeal should be refused. I will refer to this submission more fully below.

THE DECISION UNDER REVIEW

13.The ‘Certificate of Determination’ dated 29 June 2007 records the Arbitrator’s determination as follows:

“1.That the Respondent is to pay the Applicant lump sum compensation to be assessed by an Approved Medical Specialist nominated by the Commission, for permanent loss of efficient use or impairment of the right arm at or above the elbow, in respect of a date of injury of 4 January 1997.”

LEAVE TO APPEAL

14.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).

15.Although Ms Franklin submits that the appeal fails to satisfy the threshold requirements in section 352(2), it is now well established that, where no compensation has been awarded, the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application.

16.Thus, the amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act

17.Section 352 was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 which came into effect on 1 November 2006. An amendment was made to section 352(8) to read as follows:

“352(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”.

18.The question as to what constitutes an ‘interlocutory’ order, ruling or determination was considered at length by Deputy President Roche in P&O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87 (‘Hawkins’). (See also Nott v The Western Stores Limited & Ors [2007] NSWWCCPD 83; Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126; and Waverley Council v Sheen [2007] NSWWCCPD 127).

19.In Hawkins, Deputy President Roche made the following observations:

“A difficulty arises in determining what is interlocutory in proceedings in the Commission because, unlike common law courts assessing claims for damages, the Commission does not assess compensation on a ‘once and for all basis’. For the reasons set out below, care should be taken before automatically adopting common law authorities on the meaning of the term ‘interlocutory’ to the term “preliminary or interim orders...of an interlocutory nature” in clause 200B of the 2003 Regulation:

(a)the Commission is a statutory tribunal and has only those powers conferred on it by the Workers Compensation Acts (the 1987 Act and the 1998 Act). Its objectives are set out in section 367 of the 1998 Act which states:

“367 Objectives of Commission

(1) The Commission has the following objectives:

(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,

(b) to reduce administrative costs across the workers compensation system,

(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,

(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,

(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,

(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.

(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.” (emphasis added)

(b)for the reasons explained below, the above objectives will be seriously frustrated if an unduly restrictive interpretation is given to the wording in clause 200B of the 2003 Regulation;

(c)workers’ rights under the Workers Compensation Acts are ongoing and are subject to review under section 55 of the 1987 Act or reconsideration under section 350(3) of the 1998 Act. In this respect there is rarely an order (at least where the worker succeeds with his or her claim) by the Commission that ‘finally disposes of the rights of the parties’ in the sense that a common law verdict does. For example, further medical treatment may be required, or the worker’s condition may deteriorate requiring the entitlement to compensation to be reviewed and reassessed;

(d)the Commission’s jurisdiction to award lump sum compensation is restricted in that, if there is a dispute about the degree of permanent impairment of an injured worker, an Arbitrator may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an AMS (section 65(3) of the 1987 Act). This will often require that an Arbitrator determine issues such as injury, worker, and substantial contributing factor (among other issues) before the matter is referred to an AMS. The effect of a determination by an Arbitrator on these issues is set out in section 350(1) of the 1998 Act which provides:

“350(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.”

(e)such a decision clearly disposes of the parties’ rights and the findings made in such decisions or determinations do not become any less ‘final’ because of the unique statutory provisions under which the Commission operates;

(f)an AMS is not part of the Commission (section 368 of the 1998 Act) and the procedures established under Part 7 make detailed provisions for ‘medical disputes’ (defined in section 319 of the 1998 Act) to be assessed by an AMS who then issues a Medical Assessment Certificate (‘MAC’) (section 325 of the 1998 Act) which is “conclusively presumed to be correct” (section 326 of the 1998 Act) as to the following matters:

·the degree of permanent impairment of the worker as a result of an injury,

·whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

·the nature and extent of loss of hearing suffered by a worker,

·whether impairment is permanent, and

·whether the degree of permanent impairment is fully ascertainable.

(g)a party to a medical dispute may, in certain circumstances, appeal against a medical assessment under Part 7 (section 327). On appeal, a fresh MAC may be issued (section 328(5) of the 1998 Act). This process is time consuming and involves substantial cost;

(h)the Commission’s objectives of ‘reducing administrative costs across the compensation system’ and providing a ‘timely service’ would be significantly frustrated if a final decision on ‘worker’ or ‘injury’ or ‘substantial contributing factor’ (or some other issue that finally determined the parties’ rights) was to be treated as being interlocutory and the worker was then required to attend an AMS and, perhaps, a Medical Appeal Panel, and then wait for a further Certificate of Determination to be issued at the conclusion of that process before an appeal could be heard under section 352. If the appeal is ultimately successful and the Arbitrator’s finding is overturned, the AMS and Medical Appeal Panel would potentially have been held for no reason and substantial unnecessary cost and delay would have been incurred;

(i)on a question of statutory interpretation, a construction that promotes “the purpose or object underlying the Act or statutory rule...shall be preferred to a construction that would not promote that purpose or object” (section 33 Interpretation Act 1987);

(j)in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders...of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and

given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”

20.In the present case, the question remains, was the Arbitrator’s determination a preliminary or interim determination of an interlocutory nature? In my view, it was not. The Arbitrator’s finding on the issue of ‘injury’ determined the Appellant Employer’s primary liability to compensate Ms Franklin for an ‘injury’ to her right arm and thus was a matter that essentially finally determined the parties’ rights on that issue.

21.In line with the decision in Hawkins (and others to which I have referred) I am satisfied that the Arbitrator’s decision was not of an interlocutory nature.

22.Accordingly, leave to appeal is granted.

ON THE PAPERS REVIEW

23.Section 354(6) of the 1998 Act provides:

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

24.Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE ISSUES IN DISPUTE

25.The Appellant Employer submits that the Arbitrator has erred in law in two respects as follows:

“(a)The Arbitrator failed to give any or any adequate reasons for his decision, in particular, failed to identify evidence that he accepted or rejected in concluding that Ms Franklin suffered an ‘injury’ within the meaning of the 1987 Act to her right arm.

(b)The Arbitrator’s decision had no evidentiary support.

THE REVIEW PROCESS

26.The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 where he said as follows:

22.“The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:

“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

23. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

24. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).

25. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).”

27.Recently, the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 confirmed this approach. The Appellant had questioned “… whether a tribunal, when considering what action it should take to reverse findings of fact should remit the matter to the primary decision-maker unless it is satisfied that there could not be a different result”. Spigelman CJ said as follows [paras 18-30]:

“… I do not accept … that a Presidential member is relevantly constrained when reviewing an Arbitrator’s decision on such a finding of fact … The concept of a review on the merits is wider than the concept of an appeal in a judicial context … a Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contents.”

28.These principles must be considered in determining the matter before me.

THE SUBMISSIONS, EVIDENCE AND FINDINGS

The Arbitrator’s Reasons

29.The Arbitrator’s Reasons are contained at pages 55 and 56 of the transcript as follows:

“I am giving my reasons here …

I mean [doctor] Patrick is saying he believes that the right shoulder problems are largely consequent upon the effects of the frank work injury of 4 January ‘97’ and consequent left shoulder surgery … He doesn’t provide – I am really grappling with whether there’s a sufficiency of reasons, as required by Edmonds, to satisfy that burden …

[The Arbitrator then summarised the parties’ submissions]

What’s left for me is to try to work out whether on the balance of probabilities am I satisfied whether Ms Franklin did have an injury … to the right shoulder that has a nexus with the symptoms … of the injury of January 1997. On that, I think the best I can do, given that I find Ms Franklin to be a witness of credit … is to accept what she has said … under cross examination, to accept her statement that there was a gradual worsening of her symptoms, that she had reported problems with both shoulders as early as 1998, and that’s substantiated in the reports of Dr Isaacs, that the medical radiology supports the findings and the timing, as counsel for the Applicant has gone through, in that dovetailing.

I think when I look at all the evidence, all the medical evidence taken together … with the statement made by Ms Franklin, … and I accept her as a witness of credit and of truth, that it is more likely than not that the problems with the right shoulder did have a causal connection with the injury of January ‘97’, and, on that basis, I believe that she should be entitled to go the next step and find or allow an AMS to make findings … that is not a matter for me … but on the preliminary issue of whether there is an injury, I’ll find that there is an injury to the right shoulder in respect of the date as set out in the Application of 4 January 1997 …”

Was the Evidence Sufficient to Support the Arbitrator’s Findings?

30.In a statement dated 26 July 2007, Ms Franklin said as follows:

“(16) As symptoms in respect of my left shoulder following the surgery continued, I also started to become aware of worsening neck pain as well as developing symptoms in my right shoulder and arm. This occurred in or around February 1998.

(17)By mid 1998 my symptoms in my right shoulder/arm were worsening and

when I saw Dr Isaacs (Orthopaedic Surgeon) on 28 October 1998 I advised him of my pain in my back as well as the pain across both shoulders which radiated into both arms. In respect of my right arm, the pain also radiated down my hand and into my fingers.

(18)From the date of the accident through until mid 1998 my primary concern

was to my left shoulder/arm injury and thereafter my neck and back. They were my worst symptoms. As a result, I did not seek treatment in respect of my right shoulder …

(19)However, as time went by my right shoulder symptoms eventually

worsened particularly given that I was restricted in the type of work that I could perform because of my left shoulder/arm injury.

(21)My right shoulder/arm continued to get worse … I eventually reported it …

I did so on 23 July 2001. I completed the relevant report of injury form.

(22)I persisted with that employment despite my ongoing injuries and

disabilities performing suitable duties through until Thursday 14 March 2002.

(27)… I continually feel pain and discomfort in my right arm since the period

outlined above … it is my view that this injury is related to my accident on 4 January 1997 in which I injured my left arm, neck and back.

(28)I did not report my symptoms of my right arm earlier because I thought that

they may subside and I was concerned with the primary injuries to my neck, back and left shoulder.

(32)From the date of my work accident on 4 January 1997 through until October

1998 when I reported my right shoulder/arm symptoms to Dr Isaacs, I was not involved in any incident or accident wherein I sustained an injury to my right shoulder …”

31.Ms Franklin was cross examined, commencing at page 9 of the transcript. She agreed that at the time she completed a claim form on 8 January 1997, she made no mention of any complaints with her right arm. She was cross examined about a number of doctors she saw throughout 1997 and early 1998 and agreed that no mention was made of any problems with her right arm. When cross examined about doctors she had consulted from 1998 to 2001, she accepted that she had made no complaints of right shoulder or arm problems. At page 16 of the transcript when asked: “Would you accept … until you saw Dr Isaacs … that there doesn’t seem to be any complaint of right shoulder, right arm problems to any of those doctors … up until 2000?” she replied: “No.”

32.Ms Franklin agreed under cross examination that in or around 2004 she spoke to a number of doctors about problems of “… pins and needles in both arms below the elbow level” (page 19), and that those symptoms were the current significant problems.

33.I turn now to consideration of the medical evidence.

34.Annexed to Ms Franklin’s Application was a report from Dr Isaacs dated 24 June 2000. Dr Isaacs first saw Ms Franklin in April 1998. On that occasion, she made no complaints of pain or difficulties with her right arm. Dr Isaacs recorded that when he saw Ms Franklin on 28 October 1998 “she was also experiencing radiating pain into both arms”. Dr Isaacs went on to state:

“Right shoulder movements were reasonably good. She was also experiencing some radiating pain into the right upper limb and into the forearm and fingers. The cause of this was not clear.”

35.When Dr Isaacs next saw Ms Franklin on 3 November 1999 he noted that she had undergone an MRI Scan on 27 January 1999 which he reported on as follows:

“… This showed a central disc herniation at the C3-4 level and a moderate sized disc herniation at the C5-6 level. At the C6-7 level there was a broad-based osteophyte with a right posterolateral prominence compromising the ventral nerve of the right C6.”

36.Dr Isaacs stated further:

“Mrs Franklin was still suffering from a rotator cuff injury to her left shoulder and impingement of the left shoulder which had been brought about by the incident which had taken place on 4 January 1997. In addition, she was also suffering from a left-sided cervical nerve root irritation bought about by C3-4 and C5-6 disc herniations resulting from the injury which he had sustained in 1988 when she had been working for Allendale Hospital. She had aggravated the neck injury as a result of the incident which had taken place on 4 January 1997.”

37.Dr Isaacs concluded that as a result of the injury on 4 January 1997 Ms Franklin “… aggravated the central disc herniation at the C3-4 level and developed adhesive capsulitis of the left shoulder and a soft tissue strain to the lumbar spine.”

38.The ‘injury’ in 1988 to which Dr Isaacs referred was noted by a number of other doctors including Dr John Graham (who saw Ms Franklin at the request of the Appellant’s insurer in March 1999), and also Dr John Sage, who also saw Ms Franklin at the request of the Appellant’s insurer on a number of occasions, the last being 30 November 2006.

39.In a subsequent report dated 13 December 2001, Dr Isaacs reported that he had seen Ms Franklin on 15 August 2001 since his report dated 24 June 2000. On that occasion, he noted: “She had gradually started getting pain in her right arm as well”. When Ms Franklin consulted Dr Isaacs on 26 September 2001 he recorded that:

“She told me though she had been over using her right arm and right shoulder, she did not want any treatment for the same. Therefore her right shoulder had not been examined … if she is experiencing pain in the right hand by over use from protecting her left arm, until the right arm and right shoulder is examined and further investigated it will not be possible to confirm whether or not the problems in the right arm are related to her employment”.

40.Other medical material attached to Ms Franklin’s Application included the following:

·Workhab Functional Capacity Evaluation report from Jillian Loux dated 6 February 2002.

·Two reports from Robyn Douglass, Clinical Psychologist, dated 29 July 2004 and 5 May 2005.

·Nerve conduction studies by Dr Michael Katekar, Neurologist, dated 7 September 2004.

·Reports from Dr Robert Kuru, Orthopaedic Surgeon, dated 21 September 2004 and 19 April 2005.

·Report from Dr Daniel Posel, Orthopaedic Surgeon, dated 30 November 2004.

41.At the time of assessment by Jillian Loux, on 1 February 2002, Ms Franklin was complaining of “right elbow/wrist pain”, but no reference was made in that report to the nature or onset of that condition.

42.Robyn Douglass noted in her report of 29 July 2004 complaints of “pins and needles and swelling in the hands and arms … the swelling was also apparent in her face and legs”. In the subsequent report dated 3 March 2005 a reference was made to “… continued numbness in the right hand at times causing her to drop articles.”

43.Dr Katekar’s nerve conduction studies of both the right and left arms were reported as showing “… mild slowing of median sensory nerve conduction across the carpal tunnel bilaterally, with some loss of amplitude of the right sided responses.” Dr Katekar’s “interpretation” was “there is mild median nerve entrapment at both wrists. There is no evidence of ulnar nerve dysfunction”.

44.Dr Kuru in his report of 21 September 2004 stated “ I reviewed Marie with her nerve conduction studies today. They confirm that she has mild bilateral carpal tunnel syndrome”. In his report of 19 April 2005 Dr Kuru stated:

“She has seen Stephen Kemp about her shoulder. His feeling is that further surgery would not be helpful … he agrees that she does have symptomatic carpal tunnel and that she may benefit from carpal tunnel release. My impression is that some of her pain may be related to a double-crush phenonemum in combination with the pathology from her neck …”

45.Dr Posel, Ms Franklin’s treating Orthopaedic Surgeon who carried out surgery on Ms Franklin’s left shoulder stated in his report of 30 November 2004 as follows:

“Marie now complains of pins and needles in both arms below elbow level (the whole arm) and similarly pins and needles in all fingers. She has discomfort in the elbows … Marie also noticed that when walking with her hands by her side they would change colour and she would develop pins and needles …

Assessment of both hands reveals some evidence of carpal tunnel syndrome”.

46.Dr Posel concluded:

“Whereas Marie has mild bilateral carpal tunnel syndromes I doubt that all her symptoms would settle with carpal tunnel releases hence at this stage I haven’t recommended median nerve decompression.”

47.The consensus of medical opinion seems to be that in about 2004 Ms Franklin developed symptoms in both arms confirmed in nerve conduction studies as bilateral carpal tunnel syndrome. Those do not appear to be the same symptoms as described to Dr Isaacs in his report of 13 December 2001. No diagnosis was made by Dr Isaacs with respect to the complaint of “… pain in her right arm”. Dr Kuru, whilst noting bilateral carpal tunnel problems, thought that some symptoms may be emanating from pathology in Ms Franklin’s neck, which the parties conceded was injured in the accident on 4 January 1997.

48.The most recent report relied upon by Ms Franklin in her application was that of Dr Patrick, surgeon, dated 30 October 2006. Dr Patrick obtained a history of the incident on 4 January 1997, the “nature of injury” being “… neck, back and left shoulder”. He then reported as follows:

“She was being troubled by persisting symptoms, and following her left shoulder surgery, she was also aware of worsening neck pain, and also developing symptoms in her right (other) shoulder … By about mid 1998, she was having some worsening symptoms also at the right shoulder … [reference is then made by Dr Patrick having seen the report of Dr Isaacs dated 24 June 2000 referring to pain “across both shoulders …”].

There is some prior history of work-related injury to her low back, upper back and neck as long ago as 1988 … There is ongoing pain and stiffness in both shoulders … she is troubled considerably now by right shoulder pain which goes into the right upper arm laterally. Right shoulder symptoms have been present since 1998, becoming worse following the surgery to her left shoulder. She is using her right arm even more … She has some sensation of pins and needles going into both hands, right worse than left, and into the arms”.

49.Dr Patrick noted all the radiological material he had seen including MRI Scans of the cervical spine and ultrasounds of the left shoulder. No reference is made to the nerve conduction studies carried out by Dr Katakar.

50.Dr Patrick concluded:

“Following the shoulder surgery, there has been some worsening of neck symptomatology, and she has also developed increasing symptomatology at her right shoulder with pain going into the right upper arm, worsening from about mid 1998. I believe her right shoulder problems are largely consequent upon effects of the frank work injury of 4 January 1997 and consequent left shoulder surgery.”

51.Dr Patrick then concluded that Ms Franklin suffered an 18% permanent loss of efficient use of her right arm at or above the elbow.

52.In its ‘Reply’ filed on 23 May 2007, the Appellant included numerous medical reports, including those tendered in proceedings in the Compensation Court.

53.In his report of 4 December 2006, Dr Sage made no reference to having seen the nerve conduction studies undertaken by Dr Katekar. Under the heading “present problems” Dr Sage reported:

“She feels there is an increase in problems since I last saw her in May 2001, but in addition there are now significant problems with the right shoulder and also the right hand.”

54.Dr Sage reported Ms Franklin complaining of “tingling and numbness in the hands …” noting that “… the right hand was not mentioned last time I saw her”.

55.Dr Sage concluded that:

“… Symptoms could be coming from the cervical spine or an early carpal tunnel syndrome. Symptoms are not sufficient to be sure … It is unclear whether she has bilateral carpal tunnel syndrome, but if she does, then it would be her predisposition at this stage. Any effect of work has phased out.”

56.Dr Sage stated further:

“With regard to the right shoulder, which she has recently complained of, she did restrict her movement in the right shoulder from what I would regard a normal range of movement in her age group when I last saw her. Any deterioration in the right shoulder, from the point of view of range of movement, is not work related.”

57.In a supplementary report dated 12 December 2006, Dr Sage commented on the report of Dr Patrick which had been sent to him. He stated:

“It appears Dr Patrick relates the pain in the right shoulder as being ongoing since the injury, based upon a report by Dr Abe Isaacs who refers to pain across both shoulders. To me ‘across both shoulders’ would indicate going across the scapula area, which would be from the cervical spine. Perhaps Dr Isaacs could be asked again to indicate where the pain was, if he can remember.

When I saw her in May 2001, as indicated to you the right shoulder was really not mentioned as a significant problem and elevation went to 165 degrees, which I would regard as normal in her age group and build.

Thus, it appears deterioration of range of movement has occurred since then when she was not working. Thus, I cannot relate it to the injury of 4 January 1997.”

58.In a report dated 2 June 1999, Dr Bookallil, Neurosurgeon, who first consulted Ms Franklin on 18 December 1998 made no reference to any problems with the right arm. Similarly, Dr Posel in a report of 3 August 1998. Medical certificates from Dr Wasti, Ms Franklin’s treating general practitioner, dated January 2007 similarly made no reference to any problems with the right arm. Dr Wasti’s “diagnosis” was “injury lt shoulder, cervical and lumbar areas”.

59.In a report from Dr Herlihy, Injury Management Consultant, dated 16 December 2003, no complaints were made of any problems in the right arm. Dr Herlihy noted:

“Ms Franklin has pain in her neck most of the time. There is constant aching in the left shoulder. The left shoulder and arm feel heavy. She always has low back pain.”

60.Dr Chris Harrington, Orthopaedic Surgeon, saw Ms Franklin at the request of the Appellant Employer’s insurer on 19 July 2004. He recorded the following:

“About 6 weeks ago, both hands become quite swollen. It sounds as though she has some kind of acute arthritity. She was seen at the casualty department at Cessnock District Hospital where she was diagnosed as having Raynaud’s Disease, although it didn’t really have the features consistent with this and there were no changes to her circulation. She says that she is improving from this condition although she still has some symptoms in her right hand”.

61.Dr Harrington concluded: “I am not sure what the episode was that she experienced six weeks ago but I am not convinced that she has Raynaud’s Disease. Whatever the condition, it would not be work related. It wouldn’t surprise me if she has some kind of arthritis … she may also have carpal tunnel syndrome but I do not find this to be related to her initial work injury considering that she hasn’t worked in two years.”

62.Ms Franklin consulted Dr Harrington about one week prior to her consultation with Dr Kuru. In a report dated 27 July 2004 included in the Appellant Employer’s Reply, Dr Kuru stated as follows:

“Over the long weekend, she has had an acute deterioration of her limb symptoms with a feeling that her hands and feet are swollen and an inability to elevate her shoulders beyond neutral, her hands turning purple when left-dependant and numbness running down to the middle fingers of both hands.”

63.Dr Kuru thought that Ms Franklin’s “principal problem … is coming from her shoulder”. He recommended that Ms Franklin return to see Dr Posel but in the meantime, arranged for her to undertake nerve conduction studies to which I have referred previously.

64.It would seem from all this material that the onset of symptoms in the right hand occurred ‘spontaneously’ in and around the middle of 2004, consistent with a diagnosis of carpal tunnel syndrome. These are not of course the symptoms described by Dr Patrick who obtained a history of symptoms developing in the right shoulder commencing early or mid 1998.

65.Reports obtained for the purposes of the earlier proceedings in the Compensation Court included the following:

·Dr Sage - 15 May 2001 and 30 October 2002.

·Dr Pillemer – 26 July 2000

·Dr John Graham – 16 March 1999, 6 February 1997

·Dr Anthony Millar – 1 February 1999.

·Dr Baillie – 27 May 1998, 26 November 1997 and 7 August 1997.

66.Interestingly, in his report dated 15 May 2001, Dr Sage noted:

“Left hand: There was some paraethesia there before the surgery and that has been ongoing and I note a suggestion this might be a carpal tunnel syndrome. This does bother her at night with numbness, but it is also present when working”.

67.In none of the reports to which I have referred in paragraph 64 above is there any reference to symptoms or problems with the right shoulder, arm or hand. Some doctors, for example, Dr Pillemer, reported that Ms Franklin “… is right handed and she tends to do everything with her right hand”, but there was no suggestion of any symptoms, problems or difficulties with the right arm. Dr Pillemer also stated: “As noted, she had evidence of a typical carpal tunnel syndrome on the left side, which could certainly account for a lot of her symptoms at the present time”.

68.In summary then, aside from the reference by Dr Isaacs to a complain of pain “… across both shoulders …” in a consultation on 28 October 1998, there is no reference to any symptoms or difficulties in the right shoulder or arm up until 2001 in all the reports utilised in the earlier proceedings.

69.It seems clear that Ms Franklin suffered left carpal tunnel symptoms in around 2000. Bilateral symptoms were first reported around mid 2004.

70.Dr Patrick, who did not see Ms Franklin until October 2006 was the only doctor to report complaints of pain and symptoms in the right shoulder commencing some 12 or 18 months following the injury in January 1997 (other than Dr Isaacs to which I have referred). Dr Patrick’s report, to some extent, appears to be based on the reporting by Dr Isaacs of symptoms in October 1998 to which I have referred previously. Dr Patrick’s “diagnosis” is merely “… symptomatology at her right shoulder with pain going into the right upper arm …” That, with all due respect to Dr Patrick, is not a diagnosis, unlike his diagnosis of other body parts described as “… cervical spondylosis, lumbar facet injury and significant left shoulder injury with probable partial thickness tear of supraspinartis tendon of rotator cuff and development of quite marked subacromial bursitis impingement”.

71.The Arbitrator in his ex tempore reasons made no reference whatsoever to any medical report other than that of Dr Patrick (although reference was made to “… the MRI findings ..” and the report of Dr Isaacs). The Arbitrator accepted that evidence, together with Ms Franklin’s oral evidence and her statement, as the basis for his conclusion that Ms Franklin suffered an “… injury to the right shoulder …” in the incident on 4 January 1997.

72.It must also be remembered that Dr Isaacs, in his report of 13 December 2001 noted that “… until the right arm and right shoulder is examined and further investigated, it will not be possible to confirm whether or not the problems in the right arm are related to her employment.”

73.Was this evidence sufficient to ground the Arbitrator’s conclusions? The Appellant Employer submits that:

“… Dr Patrick’s opinion does not provide an explanation of how the injury occurred, or explained the reasoning behind his opinion that the right shoulder complaints relate to the injury in January 1997, in circumstances where the earliest documented report of any right shoulder complaints were on 20 April 1998 over a year after the accident … The opinion of Dr Patrick amounts to no more than a statement to which no explanation is given, and on which the Arbitrator was not entitled to rely upon … the report of Dr Patrick was the only evidence linking the worker’s right shoulder complaints of the injury in 1997, and that accordingly, there was no evidence on which to make the finding that the Arbitrator made.”

74.It is appropriate at this point to consider the mechanism of the injury described by Ms Franklin to the various doctors she consulted. Dr Isaacs obtained little detail other than that “… On 4 January 1997 she moved a desk and as she moved it towards herself she injured her left shoulder.”

75.Dr Bookallil in June 1999 recorded:” She was pulling an office desk and as she pulled it, she noticed the pain in her shoulder and the left side of her neck”.

76.Dr Harrington obtained a history that “the piece of furniture apparently came unstuck causing her to jerk her left shoulder. This also aggravated her neck and lumbar spine problems which were also sustained at work previously”.

77.Dr Pillemer summarised the history of the incident as follows:

“Ms Franklin recalls moving a desk on 4 January 1997 and this was a big, old desk, and she was pulling it when she developed severe pain in her neck and her left shoulder region, and in fact pain radiated down the whole of her left upper limb.”

78.In short, Ms Franklin was quite specific as to the nature of her task and the symptoms she experienced as a consequence. No mention was made of any right arm or shoulder symptoms or complaints.

79.The Appellant Employer referred in its submissions to the decision of the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) where McColl JA confirmed with approval the statement of Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC34 at 39 to 40 that:

“… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”

80.This statement was also considered by McColl JA in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 (‘Hevi-Lift).

81.The principles in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 (Makita) are also relevant, summarised by Deputy President Roche in Combined Civil Pty Limited v Rikaloski [2007] NSWWCCPD 181 as follows (para 33):

“That case made it clear that the prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions (per Heydon JA in Makita at [59]). Without that evidence the expert’s opinion will be a ‘bare conclusion’ (Makita at [59]). In many cases the history recorded by an expert will not accord precisely with the other evidence in the case. In that situation the question will be whether the history recorded provided a ‘fair climate’ for the acceptance of the expert’s opinion (Makita at 731-732; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76).”

82.Did Dr Patrick’s report (and indeed that of Dr Isaacs) pass the test of admissibility of expert opinion enunciated by Heydon JA in Makita?

83.Dr Isaacs’ report was qualified to the extent that he conceded that without examination, he could not confirm if symptoms in the right shoulder were associated with the injury on 4 January 2007, and thus must be discounted.

84.Dr Patrick merely observed that “following the shoulder surgery, … she has also developed increasing symptomatology at her right shoulder with pain going into the right upper arm”. An allegation of “… increasing symptomatology …” does not of itself constitute an ‘injury’ within the meaning of section 4 of the 1987 Act. It is not clear whether Dr Patrick is suggesting that, as a consequence of the shoulder surgery, Ms Franklin developed symptoms or problems with her right shoulder. If that is indeed the case, as I said earlier, there is nothing in the extensive contemporaneous medical evidence to support Ms Franklin’s allegation. Whilst her statement suggests that this was the case, it was made almost 10 years after the injury.

85.There is no reference by Dr Patrick to symptoms suggestive of carpal tunnel syndrome nor of symptoms in the right hand of tingling etc about which there was considerable medical evidence.

86.There is no explanation by Dr Patrick as to how symptoms in the right shoulder, first documented by Dr Isaacs in October 1998 were connected with her injury some 20 months previously. Dr Patrick’s statement that “I believe her right shoulder problems are largely (my emphasis) consequent upon effects of a frank work injury of 4 January 1997 and consequent left shoulder surgery” is imprecise, unexplained, and in my view fails to meet the standards required of expert evidence.

87.As McColl JA said in Edmonds, quoting from her decision in Hevi-Lift “A court should not act upon an expert opinion the basis for which is not explained by the witness expressing it.” (Paragraph 130). Her Honour referred with approval to Heydon JA’s analysis of the expert evidence in Makita, and went on to state, at paragraph 131 as follows:

“This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that “[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary” (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”.

88.In my view, Dr Patrick’s report did not satisfy Makita because it contained no explanation of the reasoning upon which he based his opinion, particularly in light of Dr Isaacs view (in October 1998) that “The cause of this [right upper limb symptoms] was not clear”.

89.Whilst I have clear reservations as to the probative value of Dr Patrick’s report, there is certainly evidence, for example, Dr Sage, that Ms Franklin does have some symptoms and/or restrictions in her right shoulder. The MRI of 27 January 1999 provides some basis for Dr Sage’s hypothesis that “… symptoms could be coming from the cervical spine”. The difficulty is that, overlapping this evidence, are symptoms consistent with carpal tunnel syndrome which Ms Franklin concedes are her principal current complaints.

90.Thus the nature of any ‘injury’ within the meaning of section 4 of the 1987 Act remains uncertain. There is considerable evidence as to various symptoms in the right shoulder, arm, elbow and hands.

91.I am not persuaded that the Appellant Employer has demonstrated that there was no evidentiary support for the Arbitrator’s finding. The difficulty seems to be not only arriving at a diagnosis but determining just what, if anything, ‘results from’ the incident on 4 January 1997. As the Court of Appeal said in Kooragang Cement Pty Limited v Bates (1994) 10 NSWCCR 796:

“Mere proof that certain events occurred which predisposed a worker to subsequent injury … will not, of itself, be sufficient to establish that such incapacity … ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain and due regard must be paid to the statutory formula by asking the question whether the disputed incapacity … ‘resulted from’ the work injury which is impugned.”

92.In short, the evidence was insufficient to determine the nature of any ‘injury’ within the meaning of section 4 of the 1987 Act. For reasons which will become apparent after dealing with the other issue on appeal, it is not necessary for me to make further findings on this issue.

The ‘Adequacy of Reasons’ Issue

93.The Appellant Employer submits that the Arbitrator has erred in law in not providing sufficient reasons for his decision. The Appellant Employer submits as follows:

“… There was a significant amount of evidence tendered in the case including more than 15 medical reports … There was a clear issue on injury and … the Arbitrator failed to provide adequate reasons for his decision as he did not discuss the evidence that he accepted, or rejected in arriving at his conclusion.”

94.The Appellant Employer submits that the Arbitrator’s “treatment” of the evidence “in respect of causation” failed to measure up to the requirements of section 294 of the 1998 Act and the requirement to provide adequate reasons. The Appellant Employer quotes from decision of Deputy President Byron in Jennifer Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119 at 102 as follows:

“The Arbitrator must not only note the relevant evidence and give reasons for findings made, but where the evidence is disputed, he must give a clear explanation for the reasons some evidence is preferred over other evidence”.

95.The transcript records the Arbitrator’s conclusion as follows:

“I think when I look at all the evidence, all the medical evidence taken together – and I think this is a really important point – taken together with a statement made by Ms Franklin, her statement, and I accept her as a witness of credit and of truth, that it is more likely than not that the problems with the right shoulder did have a causal connection with the injury of January ’97 …”

96.No reference is made by the Arbitrator to the opinions in the extensive additional reports relied upon by both Ms Franklin and the Appellant Employer. Moreover, Dr Isaacs clearly stated that he could offer no opinion as to whether any right shoulder symptoms were related to the injury in January 1997, and no reference is made to this qualification in the Arbitrator’s determination.

97.Moreover, Ms Franklin’s allegations as to the onset of symptoms was not supported by much of the contemporaneous medical opinion, and no reference is made to symptoms relating to carpal tunnel syndrome to which I have referred previously.

98.The issue of ‘adequacy of reasons’ was also considered by McColl JA at length in Hevi-Lift where she said as follows:

“99.It is unnecessary to digress at length upon the judicial obligation to give reasons. The obligation rests in the principle that justice must not only be done but must be seen to be done: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278 (“Soulemezis”) per McHugh JA. Adequate reasons ensure that the legislative facility of appeal on a question of law is not frustrated: Soulemezis, at 259, per Kirby P. Inadequacy of reasons constitutes an error of law: ibid.

100 The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, "[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged: Soulemezis, at 259, per Kirby P.

101 The obligation to give reasons where there is a dispute between experts was considered in Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 by Ipp JA (with whom Bryson JA and Stein A-JA agreed). His Honour observed (at [58], [62] – [67]) that in such cases reasons fulfil the dual functions of ensuring the parties know why they have won or lost and, in the case of the losing party, “whether he may have an available appeal on the substance of the case”, as well as concentrating the judicial mind to ensure that the resulting decision is soundly based on the evidence (see also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443 per Meagher JA).”

99.This issue was also considered by the Court of Appeal in Murray v Shillingsworth [2006] NSWCA 367.

100.Whilst it is well established that Commission Arbitrators are not required to give lengthy written reasons to comply with the 1998 Act and the Rules, they must nonetheless adequately disclose the basis of their findings on material questions of fact.

101.In line with the principles enunciated by McColl JA in Hevi-lift, I am of the view that the Arbitrator’s reasons were inadequate. He gave no reasons which explained why he preferred the opinion of Dr Patrick to the opinions of other doctors, and further, gave no reasons to explain the basis of his conclusion that “… it is more likely than not that the problems with the right shoulder did have a causal connection with the injury of January ‘97’ …”

102.The Arbitrator’s bald statement that “… when I look at all the evidence, all the medial evidence taken together … with the statement made by Ms Franklin …” was inadequate in the context of his task to determine not only the issue of ‘injury’ but also of ‘causation’ in relation to the right shoulder and/or arm complaints.

103.As McColl JA said in Hevi-Lift:

“The primary judge’s failure to give sufficient reasons has particular significance in circumstances where causation was a live issue in the case and there was conflicting expert opinion on the aetiology of the respondent’s injury: see Wiki v Atlantis Relocations (NSW) Pty Limited, above, at [61] – [62]. It was essential that sufficient reasons be given for the appellant to understand why the opinions of its medical experts had been rejected.”

104.A failure to give adequate reasons constitutes an error of law. I am satisfied that the Appellant Employer has demonstrated the Arbitrator’s failure in this respect.

CONCLUSION

105.Having erred in law in his failure to give adequate reasons, the Arbitrator’s determination must be set aside.

106.I am also satisfied that the deficiencies in the evidence on the issues of ‘causation’ and ‘injury’ are such that the appropriate course in these circumstances is to remit the matter to another Arbitrator for redetermination in accordance with these reasons.

DECISION

107.1.     The decision of the Arbitrator dated 29 June 2007 is revoked.

2.The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.

3.Costs of the proceedings before the Arbitrator on 28 June 2007 should follow the event when the matter is determined.

COSTS

108.     I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

15 October 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE