Inghams Enterprises Pty Ltd v Hickey - [2017] NSWWCCPD 36

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Ltd v Hickey [2017] NSWWCCPD 36
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Lorraine Hickey
INSURER:	Self-insurer
FILE NUMBER:	A1-1208/17
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	19 May 2017
DATE OF APPEAL DECISION:	22 August 2017
SUBJECT MATTER OF DECISION:	Consequential condition from accepted work injuries; application of Kooragang Cement Pty Ltd vBates (1994) 35 NSWLR 452; 10 NSWCCR 796; assessment of expert evidence; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; argument not raised at first instance; application of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 19 May 2017 is confirmed.

BACKGROUND

Mrs Hickey, the respondent to the appeal, was employed by the appellant, Inghams Enterprises Pty Ltd as a trainer and process worker.
On 6 April 2013, Mrs Hickey slipped on ice on the floor of the chiller room at the appellant’s premises at Tahmoor. Mrs Hickey suffered a significant injury to her right wrist and hand including a fracture of the distal radius and ulna. She required surgical treatment for the fracture including fixation.
Mrs Hickey claims that as a result of the immobilisation of her right arm she suffered a consequential condition in the right shoulder, namely adhesive capsulitis (frozen shoulder), nerve damage and complex regional pain syndrome.
It is apparent that at some time prior to 14 October 2016, Mrs Hickey made a claim for compensation in respect of her injuries. Precisely what was claimed and when is not apparent. On 14 October 2016, Leigh Virtue & Associates solicitors, representing Inghams Enterprises, issued a notice to Mrs Hickey’s solicitors. Liability was accepted in respect of the right wrist injury but all other injuries, including the consequential condition with respect to the shoulder injury, were denied.
On 31 October 2016, Mrs Hickey’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $41,250 in respect of 24 per cent whole person impairment of the right upper extremity. The claim was based on an assessment by Associate Professor Michael Fearnside, a neurological surgeon. It included impairments in respect of the right hand, wrist and shoulder.
On 10 March 2017, Mrs Hickey lodged an Application to Resolve a Dispute in the Commission (the Application). She sought an order for the payment of lump sum compensation referred to above, in respect of the injuries and consequential conditions suffered as a result of the incident on 6 April 2013.
On 16 March 2017, Inghams Enterprises filed a Reply to the Application. It disputed liability for the reasons stated in its letter of 14 October 2016.
On 11 May 2017, the matter came before a Commission Arbitrator in Coffs Harbour for a conciliation and arbitration hearing. No oral evidence was called. After hearing submissions the Arbitrator reserved his decision.
On 19 May 2017, the Arbitrator issued a Certificate of Determination and a Statement of Reasons (reasons). The Arbitrator found in favour of Mrs Hickey with respect to the disputed consequential condition in her right shoulder, which he found was a result of the injury on 6 April 2013.
The Certificate of Determination issued by the Commission on 19 May 2017 is in the following terms:
“The Commission determines:
1.       The applicant has developed a consequential condition in her right shoulder has [sic, as] a result of injury on 6 April 2013.
2. The claim for compensation under section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment as follows:
(a)Date(s) of Injury:                   6 April 2013
(b)Body parts for assessment:     Right wrist (primary injury)
Right shoulder (consequential condition)
3.       Documents to be provided to the Approved Medical Specialist (with attachments unless excluded):
(a)The Application to Resolve a Dispute.
(b)Application to Admit Late Documents dated 4 May 2017.
(c)The Reply.
(d)Application to Admit Late Documents dated 26 April 2017.
(e)The Statement of Reasons attached.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Inghams Enterprises has appealed the Arbitrator’s determination.

PRELIMINARY MATTERS

Time

There is no issue that the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Monetary threshold

The quantum in issue on the appeal is in excess of $5,000 and at least 20 per cent of the amount awarded in the decision appealed against. Therefore the threshold provision in s 352(3)(a) of the 1998 Act is satisfied.

On the papers

Section 354(6) of the 1998 Act provides:
“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.”
Inghams Enterprises has requested an oral hearing. The application is put forward on two bases. Firstly at the time of filing the appeal application the transcript of the proceedings before the Arbitrator was not available. Secondly, the appeal involves “complex issues as to causation which are more appropriately dealt with by way of an oral hearing”.
The Commission’s records reveal that a transcript of the proceedings before the Arbitrator was forwarded to the parties by document exchange on 8 June 2017, at which time Inghams Enterprises was provided with 28 days to file any supplementary submissions addressing the transcript of proceedings. Workers Compensation Commission Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6) provides that where an appeal application has been lodged in the absence of a transcript, parties are able to provide supplementary submissions following receipt of the transcript, within 28 days of the transcript being provided. I note that no attempt has been made to file any supplementary submissions. Inghams Enterprises’ submissions in reply make no complaint about the absence of the transcript.
Apart from stating that the matter involves complex issues of causation, no reasoned argument was advanced in support of the proposition. Mrs Hickey is content for the matter to be dealt with on the papers. The issues raised on this appeal are frequently dealt with by Presidential members on the papers and I see no reason to depart from that practice in this case.

Interlocutory

Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Both parties have submitted that the Arbitrator’s order is not interlocutory. It is arguable that the decision is interlocutory in that it requires a further step, namely referral to an Approved Medical Specialist, before final orders can be entered and final relief given. In any event, if the decision appealed from is an interlocutory decision, I am of the opinion that it is necessary and desirable for the proper and effective determination of the dispute that leave be given for the appeal to proceed. I would therefore grant leave for the appeal to proceed.

THE EVIDENCE

The Arbitrator’s reasons include a comprehensive summary of the factual matrix including the lay and expert evidence. I am indebted to him, and to a large extent but not exclusively the following summary mirrors the Arbitrator’s summary.
In about 1993 it is apparent that Mrs Hickey suffered an injury during the course of her employment. Reports from Lorraine Jagger, physiotherapist and rehabilitation consultant, dated 2 February 1995 and 10 April 1995 are in evidence. These reports indicate that Mrs Hickey had an “18 month history of pain in her [right] shoulder, neck, arms and wrist”. Mrs Hickey’s evidence does not deal with that incident, however it is apparent that she returned to work and continued working, including process work, for many years thereafter.
A register of injuries entry on 30 January 2007 indicates no particular injury, but a complaint that her right arm became very swollen “last night with slight swelling to the right wrist”. The injury was treated with an ice pack for 10 minutes. Inghams Enterprises’ rehabilitation progress note dated 31 January 2007, indicates that Mrs Hickey had developed pain and tingling from the right elbow down to the hand whilst pushing tubs of mince around for most of the day. A previous injury on 2 November 2006 is noted, and Mrs Hickey complained that she had “not been 100% since”. The notes indicate presentations over several days only, and as there was no further complaint the file was closed on 3 January 2007.
Clinical notes of Tahmoor 7 Day Medical Centre on 24 May 2008 record “right shoulder pain. No trauma, no pins and needles”. There is no further explanation or indication that that pain continued, and it appears that Mrs Hickey resumed work and continued to work undertaking her normal duties.
There is nothing further of relevance in the clinical records until a clinical note of 15 July 2011 which records that Mrs Hickey fell over a tree branch on 13 July 2011 where she suffered an abrasion to her right shoulder.
Non-WorkCover certificates of incapacity indicate further “right shoulder problems” in June 2012. Mrs Hickey was certified unfit to work from 25 June 2012 to 2 July 2012. This incapacity does not appear to have been the subject of a claim for compensation.
During this time Mrs Hickey underwent an ultrasound at the request of her general practitioner, Dr Challender, on 27 June 2012. A clinical note indicated to the radiologist that she was suffering “acute pain and limitation of movement of right shoulder. No overt injury. ? rotator cuff tear”. The abnormality reported was:
“There is thickening of the subacromial/subdeltoid bursa, and dynamic assessment shows bursal impingement and blockage on abduction at 60º in keeping with bursitis.”
In a supplementary statement dated 4 May 2017, Mrs Hickey says that prior to her injury on 6 April 2013:
“My right shoulder was pretty much okay – I did have some problems in 2012, but these have settled down and I was able to continue working without any problems.
At the time of my fall I do not recall having any problems with my shoulder for some time.”
Mrs Hickey then described the injury on 6 April 2013. She said that she slipped on some “black ice” in a chiller at the respondent’s premises. She said she fell heavily onto her right side and does not really recall anything. She “believes” she recalls “coming to on my right hand side. I was holding my right wrist to my body”. She was initially placed in a half cast but her right arm swelled and later that evening she had to return to the hospital to have the cast removed.
Following the injury Mrs Hickey underwent surgery by Dr Viswanathan, orthopaedic surgeon. The fracture was reduced and external fixateurs were applied to the right forearm where they remained for about six weeks.
As the Arbitrator notes, Mrs Hickey’s own evidence on the development of the shoulder pain is not specific. She stated, however, that as a result of the external bolts from the fixateurs she could not wear a sling so she rested her arm against her chest with a pillow beneath it. She says:
“After some time it became apparent in between the painkillers and the lack of movement that I developed frozen shoulder. I sought physiotherapy and this was accepted by Inghams as part of the claim.
I have since had several surgeries but continue to have significant problems with my wrist and arm generally.”
In handwritten medical notes of the Tahmoor Medical 7 Day Centre there does not appear to be any specific complaints of right shoulder problems immediately after the injury or over the subsequent months. On 8 July 2013, a handwritten clinical note indicates that it was 14 weeks since injury. It then records:
“Jarred (R) right shoulder again yesterday (dodging bin lid).
Taking some Panadeine Forte with benefit but still ? tender and restricted on movement --à x-ray or U/S”
Inghams Enterprises’ ‘return to work progress note’ also records the incident involving the bin lid (the bin incident):
“I asked Lorraine what had happened and she advised that on the weekend she had been trying to empty the bin and she was lifting it and was steadying it with her Right hand and the flip top lid went to fall on her hand so she moved it quickly and felt that she had hurt it worse then it normally feels. I asked Lorraine to attend my office after her Nominated treating Dr review. Lorraine agreed.”
The x-ray and ultrasound requested by Dr Challender occurred on 10 July 2013. The clinical history provided to the radiologist indicated “slow convalescence after fracture of right wrist. Pain and limitation of movements in the shoulder”.
Dr Jain, radiologist, reported no shoulder abnormality on x-ray. On ultrasound, the abnormality reported was thickening of the subacromial bursa, consistent with subacromial bursitis. The radiologist noted extensive limitation of movement which was likely to be due to adhesive capsulitis. Dr Challender noted these findings on 12 July 2013 and sent Mrs Hickey back to physiotherapy. He also arranged for an ultrasound-guided injection into the right glenohumeral joint which occurred on 27 August 2013.
On 15 July 2013, Dr Challender responded to a questionnaire dated 11 July 2013 forwarded to him by Inghams Enterprises. The following questions and answers are recorded:
“Q: The worker has reported an injury to her right shoulder. Please advise the mechanism of injury which the worker reported to you along with the date of injury reported to you?
A: Essentially has evolved a frozen (R) shoulder whilst immobilised which is very hard to remobilise and feels like it’s tearing.
…
Q: Has the employment been a substantial contributing factor to the injury giving consideration to s 9A of the Workers Compensation Act 1987 (copy enclosed)? If the case of a disease, is employment the main contributing factor? If so, how/if not why not?
A: Yes – a sequelae of original injury.”
On 30 August 2013, Dr Challender recorded that Mrs Hickey had a good response to the ultrasound injection in the right shoulder.
In respect of the continuing right wrist and hand problems, Dr Viswanathan referred Mrs Hickey to a hand specialist, Dr Jai Sungaran, who she saw for the first time on 24 September 2013. Dr Sungaran, unsurprisingly, focused on Mrs Hickey’s wrist and hand. He took no history of complaint, or noted any pathological findings in the right shoulder. He organised further investigations into the right hand and ultimately recommended a release of the right thumb tendon and a tenolysis of the index finger.
On 29 October 2013 Dr Viswanathan reviewed Mrs Hickey and his history and attention was directed to Mrs Hickey’s wrist only. He then discharged her into the care of the hand surgeon.
Dr Sungaran performed the right wrist arthroscopy on 5 December 2013, which involved a debridement of the Triangular Fibrocartilage Complex (TFCC), release of the extensor tendon of the index finger, and radiocarpal arthrosis. Mrs Hickey was discharged that day with a sling for support if needed.
On 6 January 2014, Dr Challender recorded that Mrs Hickey was still having trouble with the right shoulder with pool and water activities, and the wrist and hand had not been much different since the surgery.
On 13 January 2014 Dr Challender referred Mrs Hickey for physiotherapy noting “she has an ongoing tendinitis in her (R) shoulder. Her W/C will approve of some water aerobic rehab if it is overlooked by you”.
On 14 February 2014, Dr Challender noted the hand surgeon reviews but also recorded:
“[illegible] consulting shoulder surgeon --> hold off [illegible].”
The Arbitrator noted that Mrs Hickey herself does not give any evidence regarding the absence of complaint of the right shoulder condition immediately after the injury until July 2013. Similarly there is no evidence from her concerning the records of Dr Challender and Inghams implicating the “bin lid incident” on or about 6 July 2013.
In March 2014 Dr Challender noted that the “(R) forearm and shoulder still a worry”.
Mrs Hickey continued to experience significant difficulties with her right wrist and underwent further radiological investigations of the wrist. Her condition seemed to remain relatively unimproved for some significant period of time. On 2 June 2015, Mr Chaubal, physiotherapist, reported following a clinical and workplace assessment, but his focus was on the right wrist symptoms.
In a supplementary statement of 4 May 2017 Mrs Hickey says, regarding the chronology of Dr Edwards:
“The report of Dr Edwards notes that I made complaints on 8 July 2013, 12 July 2013, and on a number of occasions after about pain in my right shoulder. All of these pains came after my fall.
At the time of my fall, my focus was on my wrist, which had been broken, and with problems I had right after.
The history I gave to Dr Edwards is, as I remember it, several years after almost chronic pain and problems with my wrist, elbow and shoulder, as a result of the fall at work.
I have done my best to be an accurate historian at all times, but I have been in almost chronic and acute pain since my fall and have since had to give up employment as I could not continue with my right arm the way it was.”
She says she was certain her right shoulder was functional and working prior to her fall, but “has deteriorated to the stage that it had become frozen and I had difficulty moving my hand behind my back”. She said she attributes these effects to the fall and the fact she had to keep her right arm restrained for a very long time.
Again, Mrs Hickey does not address the reasons reported for the specific complaint of shoulder pain noted by Dr Edwards on 8 July 2013, namely “dodging bin lid”.
At some stage Mrs Hickey came under the care of Dr Anna Pham. Dr Pham referred Mrs Hickey for an ultrasound of her right shoulder and this occurred on 10 March 2016. The clinical history was:
“WorkCover. Increasingly painful right shoulder. Limited abduction and forward flexion. ? capsulitis/rotator cuff tear.”
The radiologist reported the absence of tear but did note heterogenous echotexture suggestive of tendinosis in the supraspinatus tendon. There was also subacromial/subdeltoid bursitis and impression of mild degenerative change in the acromioclavicular joint.

Forensic opinions

Associate Professor Michael Fearnside

Associate Professor Fearnside is a neurological surgeon who examined Mrs Hickey at the request of her solicitors. Associate Professor Fearnside examined Mrs Hickey on 21 August 2016 and prepared a report dated the same day. Associate Professor Fearnside obtained a comprehensive history, including the history of the injury on 6 April 2013 and the subsequent operative treatment. The history included a description of the right hand and arm pain suffered by Mrs Hickey in the sequel to the surgery. Associate Professor Fearnside noted:
“[Mrs Hickey] had some loss of range of motion of her right shoulder although this had now improved with physiotherapy and cortisone injections into the shoulder. Shoulder movement, however, had not normalised.”

He noted the history of the subsequent surgery performed by Dr Sungaran on 5 December 2013 and the symptoms experienced by Mrs Hickey around that time. He said:
“Overall she was with a view that the pain in her right arm was getting steadily worse and affected the second and third fingers of her right hand in particular. The joints of these fingers were painful and she always had some pain around the right wrist. She said that she was always aware of symptoms in her right arm.”
Further, the doctor noted that Mr and Mrs Hickey had moved to Nambucca and that she had continued working on light duties with Inghams Enterprises until the end of May 2016 (when she resigned).
The Associate Professor noted that Mrs Hickey, when examined, displayed a loss of range of motion of the right shoulder. The doctor’s report contains a comprehensive history of Mrs Hickey’s current condition and general health, her education and occupational history. He reviewed the radiological findings between June 2012 and April 2013. On physical examination, Associate Professor Fearnside noted wasting of the right arm when compared to the left, and the circumference of the upper arm and upper forearm were each one centimetre less for the right side than the left which he found was abnormal because Mrs Hickey is a right hand dominant person. He expressed the opinion that Mrs Hickey has developed a chronic pain syndrome affecting the right arm. He also opined that it is likely that Mrs Hickey suffered capsulitis in the right shoulder and a loss of range of motion. He rejected the notion that she suffered a complex regional pain syndrome.
With respect to the pre-existing condition of Mrs Hickey’s right shoulder, Associate Professor Fearnside stated:
“She had a prior history of an injury to the right shoulder some years ago when she was employed with Inghams Enterprises. The injury was treated with physiotherapy and symptoms resolved completely. She said that at the time of the subject accident she had a normal range of motion and no pain in the right shoulder.
Otherwise, there was no prior history of other chronic pain conditions or any neuropathic pain nor any family history of chronic pain conditions.”

Dr Kim Edwards

Dr Edwards is a general surgeon who provided two reports at the request of Inghams Enterprises. The first report is dated 29 August 2016 and the supplementary report is dated 19 April 2017. Dr Edwards’ first report contains a comprehensive history of the injury and subsequent treatment.
In so far as the shoulder condition is concerned, he recorded the history that Mrs Hickey had told him that after her wrist operation she had developed a “right frozen shoulder” for which she had been prescribed physiotherapy. He recorded a prior history of injury to the right shoulder whilst employed by Inghams Enterprises, noting that she had some pain but no time off work in respect of that incident.
Dr Edwards reviewed the clinical notes from the Tahmoor 7 Day Medical Centre related to Mrs Hickey and relevantly noted the following entries.
· On 24 May 2008 complaints of “right shoulder pain. No trauma, no pins and needles”.
· The clinical note entry for 6 March 2014 stated “have right shoulder inflammation for 11/12 since fall”.
Dr Edwards noted an incident form from Inghams Enterprises which indicated that on 8 July 2013 at 8.30 am Mrs Hickey telephoned to advise that she would not be in to work. She said that on the weekend:
“She had been trying to empty the bin and she was lifting it and was setting it with her right hand and the flip-top lid went to fall on her hand, so she moved it quickly and felt that she had hurt it worse than it normally feels.”
Dr Edwards noted that Mrs Hickey subsequently went to see Dr Challender and was referred for an ultrasound and x-ray of the shoulder.
Dr Edwards further noted the medical records revealed a letter from Lorraine Jagger, a physiotherapist, to Dr McGroder dated 2 February 1995 which indicated that Mrs Hickey had reported an 18 month history of pain in her right shoulder, neck, arms and wrist and that she had been on restricted duties since August 1994.
A further entry from the clinical notes dated 19 November 2007, indicated that Mrs Hickey had presented complaining of a “sore right shoulder” which she stated “could be arthritis”. The note indicates that the reported pain commenced on 14 November 2007 and that it “comes and goes (ever since she injured it). Arm feels heavy, tingly”.
On 9 April 2010 the clinical notes indicated that Mrs Hickey reported to first aid stating that she injured her finger and right hand whilst pushing a tub of meat onto scales. The complaints included a report of a “sharp tingling pain through her fingers and hand and up her right arm. She is now having trouble making a fist”.
Dr Edwards noted a complaint of right arm symptoms on 12 May 2010 and 9 January 2012. Finally he recorded that on 29 June 2012 Mrs Hickey consulted Dr Challender with a “right shoulder problem”.
Upon physical examination, Dr Edwards noted a limitation of movement of the right shoulder.
Under the heading “opinion” Dr Edwards stated:
“I note that it appears Ms Hickey did sustain an injury to her right shoulder at home when lifting a bin on 11 June 2013. She did not mention this today. This would correspond to the onset of shoulder symptoms mentioned by Dr Manohar.”
Dr Edwards confirmed that Mrs Hickey “may have” an adhesive capsulitis (frozen shoulder) affecting the right shoulder, “but this does not appear to be directly related to the arthroscopy of her right wrist which was carried out on 5 December 2013”.
Dr Edwards opined:
“I would not consider that Ms Hickey’s employment on [6 April 2013] is a reasonably substantial contributing factor to any of her complaints, other than her wrist injury. The right shoulder complaints are not reasonably related to the arthroscopy, nor are they related to the injury on 6 April 2013.”
In his second report dated 19 April 2017, Dr Edwards reviewed clinical records of the Oaks Medical Practice forwarded to him under cover of a letter dated 16 March 2017 from Inghams Enterprises’ solicitors.
The only note of any particular relevance is the clinical entry of 8 July 2013, which indicated “jarred right shoulder again yesterday (dodging bin lid)…”
After reviewing the notes, Dr Edwards confirmed his view “that Mrs Hickey’s right shoulder complaint is not related to her hand injury which occurred on 6/4/2013”.

THE ARBITRATOR’S FINDING AND REASONS

Recognising that what is in issue in these proceedings is an allegation of a consequential condition, and not an injury under s 4 of the 1987 Act, the Arbitrator set out at some length the relevant principles concerning the approach to determining causation. The Arbitrator then made a series of findings of fact. Firstly he found that Mrs Hickey had suffered from right shoulder problems in about 1994 that persisted for some 18 months. He found that she was able to return to work in her pre-accident duties working as a process worker for many years thereafter. Further the Arbitrator found that it is clear that Mrs Hickey suffered from persistent or at least intermittent symptoms involving the right arm and shoulder from time to time thereafter. So much is clear from the ultrasound on 27 June 2012 indicating subacromial bursitis in the right shoulder. Mrs Hickey accepted that she had pre-existing problems but had stated that she was “pretty much okay” and was able to continue working without any problems. Therefore, the Arbitrator found, it was reasonable to infer that the pathology in the right shoulder continued at least to some extent between June 2012 and the right wrist injury on 6 April 2013, notwithstanding her ability to continue working during that period.
The Arbitrator found that clearly Mrs Hickey sustained a very serious injury to her right wrist. Following the initial operation which involved the use of external bolts and fixateurs, she had rested her right arm against her chest with a pillow, being unable to use a sling because of the fixateurs. This was for a period of about six weeks. The Arbitrator found that based on these facts, as a matter of common sense, there was a significant period of either total or relative disuse of the right arm between the injury on 6 April 2013 and 6 July 2013, the date of the bin in incident. There was a further period of relative disuse of the right arm following the surgery on 5 December 2013. The Arbitrator found that as a matter of common experience anyone who had been subjected to a surgical procedure such as that to which Mrs Hickey submitted, would be either forced to restrain the use of the limb by sling or bandage or by voluntary disuse of the limb to avoid pain.
The Arbitrator accepted that there were no specific records of complaints of right shoulder problems immediately after the injury, or over the subsequent months. He accepted however that during this time Mrs Hickey would have been in significant pain, and inconvenienced and restricted by the external fixateurs, and the continuing symptoms in the wrist and hand. Those problems the Arbitrator found were undoubtedly the focus of her treatment at that stage.
The Arbitrator found (at [91]):
“I accept that the applicant more than likely did experience increase[d] discomfort in the right shoulder as a result of the lack of use between April and July 2013. This lack of use, as I have found above, is a result of the right wrist injury. Given the subsequent opinions, expressed by Dr Challender, I therefore decline to draw an inference that no complaint was ever made by [Mrs Hickey] at that time.”
The Arbitrator accepted that the development of the shoulder condition, independent of the bin incident, is supported by the evidence of Dr Challender. When he ordered the x-ray and ultrasound of 10 July 2013, the history he provided to the radiologist included the note “[s]low convalescence after fracture of right wrist. Pain and limitation of movements in the shoulder”. This, the Arbitrator found, indicated a continuing focus on the shoulder, not a new focus. He concluded (at [94]): “Such an interpretation is in my view overwhelming, and reinforces the caution against too firm a reliance on clinical notes expressed in Demasi”. The reference to Demasi is a reference to the decision in Mason v Demasi [2009] NSWCA 227 (Demasi).
The Arbitrator found that there was more than just a temporal connection between the bin incident and the subsequent ultrasound. That was because, as Dr Challender explained, the condition in the shoulder occurred whilst it had been immobilised and was a sequelae of the original injury.
The Arbitrator acknowledged a “serious deficit” in the evidence marshalled in support of Mrs Hickey’s claim in that it relied only on Associate Professor Fearnside’s evidence. He noted that Associate Professor Fearnside made no reference to complaints after the accepted injury and the bin incident, nor did he make any reference to the bin incident itself. The Arbitrator concluded (at [103]):
“However, Dr Fearnside’s ultimate opinion otherwise provides general support for the opinions expressed by Dr Challander [sic]. He notes, and found on examination a continuation of shoulder pain and wasting of the right upper arm, which he said would not be anticipated in a right-handed person. I am prepared to infer this indicated disuse of the right arm. He can, with his broad body of surgical knowledge be expected to be well aware of the effect of surgery on the use of the affect[ed] limb …”
The Arbitrator found (at [104]) that Associate Professor Fearnside expressed his opinion in a “stepwise fashion”, namely he reported on the effects of the wrist injury and surgical treatment. He then stated that “subsequently” Mrs Hickey developed chronic pain syndrome affecting the right arm with ongoing pain disproportionate to the healed fractures. He continued, saying that Mrs Hickey probably has capsulitis of the right shoulder and reduced motion. The Arbitrator then held:
“I consider a fair reading of this opinion is to the effect that the injury and probable consequent loss of use is capable of causing the adhesive capsulitis, and continuing symptoms in her right shoulder.” (emphasis in original)
The Arbitrator accepted that if this were the only opinion on the matter then it would fall short of establishing that Mrs Hickey’s increase in symptoms and the development of frozen shoulder did result from the wrist injury.
The Arbitrator then went on to find (at [105]):
“However, as noted above, Dr Challender provides an opinion to the effect that it did result from the injury. He can be taken to have been aware of the bin incident (being the author of the clinical note), and its immediate effects in comparison to the previous presentations of [Mrs Hickey] to him. I accept Dr Challender’s opinion on its own, but the plausibility of his opinion is supported by Dr Fearnside’s analysis, flawed as it is by the lack of adequate information provided to him, at least in so far as his medical reasoning is concerned. I am therefore satisfied, on the basis of Dr Challender’s opinion, that the applicant has suffered a condition in the right shoulder, with significant increase in symptoms, as a result of the right wrist injury and treatment.”
With respect to Dr Edwards’ evidence, the Arbitrator noted that caution should be exercised in relation to his reliance on clinical notes, particularly when other evidence such as that of Dr Challender demonstrated that the initial primary focus was on the wrist injury. Nevertheless he noted that Dr Edwards recorded that Mrs Hickey uses her left hand for most activities. This, the Arbitrator concluded, supports an inference of relative disuse of the right hand. Further he noted that Dr Edwards failed to record any measurements of the upper extremities or make reference to any wasting on examination. Although he was aware of the bin incident he made no enquiry of Mrs Hickey regarding it. Dr Edwards misstated the correct legal test by considering whether or not the employment was “reasonably a substantial contributing factor to any of her complaints, other than her wrist injury”. The Arbitrator found (at [107]):
“Confusingly, Dr Edwards further asserts that the shoulder complaints are not reasonably related to the arthroscopy, or the injury on 6 April 2016 [sic, 2013]. He does not specifically consider the development of the right shoulder condition as a consequence of the effects of the injury to the right wrist.”
The Arbitrator ultimately concluded (at [108]):
“Accordingly, although I accept Dr Edwards’ views insofar as they throw some doubts as to the nature and extent of the pathology in the right shoulder resulting from the wrist injury (as opposed to the probably pre-existing bursitis, and the consequences of the bin incident), the opinions do not dissuade me from the persuasion I feel that the applicant suffered a real increase in symptoms in her right shoulder and probably the development of adhesive capsulitis from disuse directly as a result on the effects of the right wrist injury and subsequent treatment.”
He concluded (at [109]) that the right shoulder condition resulted from the injury at work on 6 April 2013.

GROUNDS OF APPEAL

Inghams Enterprises’ grounds of appeal are as follows:
“1. The arbitrator erred in fact, law or discretion in finding that [Mrs Hickey’s] right shoulder condition was causally related to [Mrs Hickey’s] right wrist injury by:-
a. Finding that [Mrs Hickey] had discharged her onus of proof on causation;
b. Misapplying the test for causation;
c. Finding, in the absence of any expert opinion or expert evidence, that the right shoulder condition was as a result of ‘disuse directly as a result [of] the effects of the right wrist injury and subsequent treatment’;
d. Rejecting the opinion of Dr Edwards;
e. Failing to properly consider the inadequacy of [Mrs Hickey’s] medical evidence;
f. Preferring the expert opinion of Dr Fearnside to Dr Edwards in circumstances where Dr Fearnside provided no opinion on causation and did not record a proper history of [Mrs Hickey’s] longstanding right shoulder condition;
g. Giving insufficient weight to ‘the bin incident’ in July 2013;
h. Giving insufficient weight to the numerous right shoulder complaints prior to the wrist injury.”
As can be seen from the above, the grounds of appeal allege legal, factual and discretionary error and then identify a number of sub-grounds, without identifying whether the alleged errors are errors of fact, law or discretion. The submissions in support are in the form of a narrative addressing all grounds. An appeal in that form does not comply with Practice Direction No 6, which requires the making of written submissions in support of each ground of appeal. An appeal in this form is unacceptable, particularly when it has been drafted by experienced counsel.
In addition, the chronology filed with the Appeal Application is grossly inadequate. A chronology which includes only the dates of procedural matters leading up to the Certificate of Determination is insufficient. That is particularly so in a case such as this where there is a complex history of injury and treatment.
The profession is reminded, yet again, that appeals must comply fully with Practice Direction No 6. That includes, among other things, succinctly stating the grounds of appeal, providing submissions in support of each ground of appeal, and providing a detailed chronology of the principal events leading up to the filing of the Application to Resolve a Dispute and if necessary, after that date.

SUBMISSIONS

Inghams Enterprises’ submissions

Inghams Enterprises’ submissions may be broadly summarised as follows.
Dr Edwards was the only expert who expresses an opinion on causation between the right shoulder condition and the wrist injury. Associate Professor Fearnside does not express an opinion as to the cause of Mrs Hickey’s right shoulder condition, nor its relationship to the accepted wrist injury.
Dr Edwards is the only doctor to record the “bin incident” when providing his opinion on causation. The incident was not disclosed by Mrs Hickey in her evidence.
There is no report in evidence from Dr Challender other than his physiotherapy referral letter and the handwritten answers to Inghams Enterprises’ questionnaire. It is submitted that “Dr Challender does not provide an opinion, or any opinion based on a fair climate, on causation”.
Inghams Enterprises submits that the Arbitrator correctly identified the test for causation of a consequential condition but misapplied it. In particular it is submitted that:
“With respect to the learned arbitrator, whilst the Kooragang test for causation is appropriate, the learned arbitrator has misunderstood the test of causation, in particular, the ‘commonsense approach’, and has erred in law and fact.”
Inghams Enterprises submits that whilst the commonsense approach has a role to play in the evaluation of the causal chain, it is not the sole or universal test of causation: Comcare v Martin [2016] HCA 43; 258 CLR 467 (Comcare v Martin) at [42] and State of New South Wales v Bishop [2014] NSWCA 354 (Bishop) at [20]. Common sense, it is submitted, should be utilised in the context of the evidence, especially expert evidence that is “applicable” as in the present case.
In Comcare v Martin the High Court described (at [42]) as “doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm” and further stated that “as a result of” was satisfied if there was a contribution “to a significant degree” (at [45]).
In Bishop, Basten JA noted that references to “common sense evaluation” are not necessarily helpful and cannot excuse a failure to address a conflict in the expert medical evidence.
After referring to Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) and Hamad v Q Catering Limited [2017] NSWWCCPD 6, Inghams Enterprises submitted that in discharging her onus on causation Mrs Hickey “must establish that the wrist injury materially contributed to her right shoulder condition”. This, so it is submitted, “necessarily involves a medical question and the ‘commonsense approach’ to causation cannot excuse the arbitrator’s failure to address either a conflict in the expert medical evidence, or indeed, an absence of medical opinion”. Associate Professor Fearnside’s evidence does not advance Mrs Hickey’s case and is contrary to the opinion of Dr Edwards.

It is alleged that the Arbitrator erred in rejecting the opinion of Dr Edwards. It is submitted that the Arbitrator’s reasoning (at [108]) is not sound, “nor is it appropriate to reject Dr Edwards whose recorded history provides a fair climate for the acceptance of his opinion on causation. This is especially so when there is no expert medical opinion to the contrary”.
It is alleged that the Arbitrator erred in his reliance upon JR & DI Dunn Transport Pty Ltd v Wilkinson [2015] NSWWCCPD 38 (Wilkinson). Firstly, Inghams Enterprises did not contend that a “consequential condition” is akin to a s 4 injury. Secondly, the case is distinguishable on the basis that, unlike Wilkinson, in the present case Associate Professor Fearnside has not provided an opinion on causation. The history recorded by Associate Professor Fearnside does not provide a fair climate for the acceptance of an inferred opinion, including an absence of any history of the numerous right shoulder complaints prior to the injury and the “bin incident” in July 2013. Unlike Wilkinson, in the present case Inghams Enterprises called evidence from Dr Edwards to provide a contrary opinion and the history recorded by him provides a fair climate for the acceptance of his opinion.
Inghams Enterprises submit that no weight can be afforded to the report of Associate Professor Fearnside on the issue of causation of Mrs Hickey’s right shoulder condition, as it does not satisfy the test in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43 (Hancock). It is submitted that the requirement for satisfactory compliance with the principles governing expert evidence are those referred to in Hancock, namely “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests”. Conversely, the report of Dr Edwards satisfies the Hancock test.

The bin incident

The significance of the bin incident in the clinical entry is summarised as follows:
(a)     it is the first recorded complaint of right shoulder symptoms after the wrist injury and offers a credible “commonsense” explanation for the right shoulder symptoms;
(b)     Dr Edwards has considered it. Associate Professor Fearnside has not;
(c)     the bin incident was the reason Mrs Hickey was sent for a right shoulder x-ray and ultrasound, and
(d)     the bin incident is the reason Mrs Hickey was referred for an ultrasound guided cortisone injection in her right shoulder in August 2013.
In evaluating the cause of the right shoulder condition, it is submitted the bin incident provides a commonsense explanation that is both temporal and credible. Notably, Mrs Hickey has not given evidence about it, even though the relevant entry is contained in the Application. Nor has Associate Professor Fearnside recorded it in his report.
Given that the incident is well documented, it remains unexplained by either Mrs Hickey or Associate Professor Fearnside. It is significant and relevant to Mrs Hickey discharging her burden of proof.
It is submitted that there is no evidence to support Mrs Hickey’s submission that the bin incident was at best “the straw that broke the camel’s back” (reasons at [70]). Mrs Hickey has a lengthy and consistent history of right shoulder problems since around 1993, including bursitis both before and after the wrist injury. On 29 June 2012, only nine months before the wrist injury, Mrs Hickey again consulted Dr Challender with a “right shoulder problem”. The entry with respect to the bin incident on 8 July 2013 records “jarred right shoulder again yesterday dodging bin” (emphasis in original) suggesting that this is not the first time that Mrs Hickey had jarred her right shoulder.
For the above reasons, Inghams Enterprises submit that the Arbitrator erred in finding on the balance of probabilities that there was a causal connection between Mrs Hickey’s right shoulder condition and her right wrist injury on 6 April 2013.

CONSIDERATION

The test of causation

In the proceedings before the Arbitrator, counsel for Inghams Enterprises, Mr Saul, submitted (at T6.21):
“It is a ..(not transcribable 00.10.14).. type test of causation and you have to be satisfied that the applicant can prove on the balance of probabilities that there is such a causal link between the applicant’s right shoulder and indeed this accident to the wrist.”
Mrs Hickey submits, and in submissions in reply, Inghams Enterprises accept, that the non-transcribable reference in the transcript was in fact a reference to Kooragang Cement Pty Ltd vBates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
In Kooragang, Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at 463–464:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The Arbitrator recorded in his reasons (at [69]) Mr Saul’s submission in these terms:
“(a) The respondent does not have to prove that the right shoulder condition is not related to the accident, or that there was some other cause for her right shoulder condition. It is for the applicant to discharge the onus to establish that a right shoulder condition results from the wrist injury, on the basis of the ‘Kooragang type test’.”
There has been no demur from Mr Saul concerning accuracy of the Arbitrator’s summary of his submission. The dicta in Kooragang has been consistently applied in the Commission in dealing with questions of consequential conditions arising from accepted work injuries.
On appeal, after quoting from various authorities including Comcare v Martin, Bishop and Murphy, Mr Saul submitted that those authorities support the proposition that the respondent, in discharging her onus on causation, must establish that the wrist injury “materially contributed” to the right shoulder condition. This, he submitted, involves a medical question and the “commonsense approach” to causation but could not excuse, in his submission, the Arbitrator’s failure to address either a conflict in the medical evidence or indeed the absence of medical opinion.
The so called “material contribution test” was not argued before the Arbitrator. It is generally accepted that a party is bound by the conduct of his case at first instance. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so: Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481. A recent example of the application of that authority is: Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93.
Furthermore, the Arbitrator cannot have erred in failing to deal with an argument that was not put during the course of the hearing: Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111. For these reasons I do not propose to entertain an argument that was not argued before the Arbitrator.

The factual findings

As Mrs Hickey submits, the Arbitrator analysed the factual evidence at length and made a series of factual findings:
(a)     Mrs Hickey sustained a prior injury in 1994 with symptoms ongoing for at least 18 months, however she returned to process work thereafter for many years (reasons at [80]);
(b)     the Arbitrator accepted that Mrs Hickey suffered persistent or at least intermittent symptoms involving the right arm, including the shoulder, from time to time thereafter (reasons at [81]);
(c)     Mrs Hickey suffered subacromial bursitis in the right shoulder in June 2012, however he accepted her evidence that she was “pretty much okay” and was able to continue working without problems (reasons at [82]);
(d)     the “pathology” continued, at least to some extent, between June 2012 and 6 April 2013 (reasons at [83]);
(e)     at the time of the wrist injury, Mrs Hickey had a normal range of motion and no pain in the right shoulder, she had not complained to her doctors about her right shoulder for some time and was performing work in a manual job (reasons at [103]);
(f)      the wrist injury was a serious injury involving fractures to the radius and ulna together with damage to the tendons in the hand and the triangular fibrocartilage complex in the wrist (reasons at [84]);
(g)     due to the external bolts and fixateurs, after the first surgery Mrs Hickey had to rest her arm against her chest with a pillow beneath it instead of wearing a sling for a period of six weeks (reasons at [85]);
(h)     there was then a period thereafter where Mrs Hickey’s use of the right wrist and hand and upper right limb generally were significantly restricted (reasons at [86]);
(i)      the Arbitrator accepted that there was a significant period of either total or relative disuse of the right arm between the injury on 6 April 2013 and 3 July 2013, the date of the bin incident (reasons at [86]);
(j)      Mrs Hickey suffered a further period of total or relative disuse of the right upper arm after the second surgery on 5 December 2013 (reasons at [87]);
(k)     the absence of complaints in the contemporaneous records was of little importance (reasons at [88]–[89]) and did not establish that Mrs Hickey did not complain of right shoulder complaints (reasons at [91]–[95]);
(l)      Mrs Hickey experienced discomfort in the right shoulder as a result of lack of use between 6 April 2013 and 8 July 2013 and this lack of use was a result of the wrist injury (reasons at [91]–[95]), and
(m)   there was a real increase in the symptoms in Mrs Hickey’s right shoulder and probably the development of adhesive capsulitis from disuse directly as a result of the effects of the right wrist injury and subsequent treatment (reasons at [108]).
All of these findings were open to the Arbitrator on the evidence presented and reveal no error. It was with the background of these factual findings that the Arbitrator analysed the medical evidence.

The medical evidence

Dr Challender

When asked by Inghams Enterprises for his opinion concerning the right shoulder and its relationship to the reported injury, Dr Challender’s opinion was unequivocal. He clearly stated that Mrs Hickey’s shoulder condition, which he described as a “frozen right shoulder” was due, in his opinion, to the immobilisation following accepted wrist injury. In reference to the question put to him concerning the application of s 9A of the 1987 Act, he again stated unequivocally that the shoulder injury was a sequelae of the original injury.
Mrs Hickey had consulted with Dr Challender after the so-called bin incident. It can be reasonably inferred that Dr Challender placed little significance on the bin incident because, within a few days of that incident, on 10 July when referring her for an ultrasound and x-ray, he provided the radiologist with a history not of the bin incident but of a slow convalescence after a fracture of the right wrist.
Dr Challender’s knowledge of the symptoms pre-existing the injury on 6 April 2013, his acknowledgment of her involvement in the bin incident and his ongoing treatment over a lengthy period, in my view, provided a fair climate for the acceptance of his unequivocal opinion supporting a causal connection between the right shoulder condition and Mrs Hickey’s accepted wrist injury (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58).

Associate Professor Fearnside

I do not accept Ingham’s submission that Associate Professor Fearnside did not express an opinion on the question of causation. His opinion is stated at 7.1–7.10.2 of his report. Associate Professor Fearnside recorded a history of the accepted injury on 6 April 2013. He noted continuing symptoms in Mrs Hickey’s right arm including a loss of range of motion of her shoulder. Associate Professor Fearnside stated that he was aware of the history of a pre-existing right shoulder injury which had been treated conservatively and resolved. On physical examination he noted wasting of the right arm when compared to the left. He concluded that Mrs Hickey suffered chronic pain syndrome affecting the right arm. He included in his assessment of impairment referable to the injury on 6 April 2013 an assessment of 9 per cent whole person impairment in relation to the condition of the shoulder.
However, the Arbitrator acknowledged that if Associate Professor Fearnside’s evidence was the only evidence relied upon by Mrs Hickey, this would be a serious deficit in the evidence marshalled in support of her claim. The Arbitrator expressly acknowledged (at [102]) that Associate Professor Fearnside did not record any history of complaints between the wrist injury on 6 April 2013 and the bin incident on 8 July 2013. Nor did he make any reference to the bin incident itself. The Arbitrator expressly noted that, unlike Dr Challender who had treated Mrs Hickey for some years, Associate Professor Fearnside cannot be assumed to have knowledge of the pre and post injury complaints.
Notwithstanding the deficiencies in Associate Professor Fearnside’s evidence, as the Arbitrator noted at [103], Associate Professor Fearnside’s ultimate opinion otherwise provided general support for the opinions expressed by Dr Challender. The Arbitrator concluded that Associate Professor Fearnside can, with his broad body of surgical knowledge, be expected to be well aware of the effects of surgery on the use of affected limbs. Associate Professor Fearnside’s opinion was based in part on a history that at the time of the wrist injury Mrs Hickey had normal range of motion and had no pain in the shoulder. He noted there was nothing in the contemporaneous records to dispute this and it was consistent with Mrs Hickey’s own evidence, particularly the fact that she had returned to work and had been doing a manual job for some time after the 2012 investigations. Associate Professor Fearnside was aware that by 10 July 2013, only a couple of days after the bin incident, there was already radiological evidence of thickening of the subacromial bursa and extensive limitation of movement likely to be due to adhesive capsulitis.
The Arbitrator concluded that Associate Professor Fearnside’s assessment that Mrs Hickey “subsequently” developed chronic pain syndrome was, on a fair reading of his report, an expression of opinion that the injury and probable consequent loss of use was capable of causing the adhesive capsulitis and continuing symptoms in the right shoulder.
The Arbitrator correctly concluded that, notwithstanding the flaws in his history recorded, Associate Professor Fearnside’s analysis reinforced Dr Challender’s opinion on the question of causation.
Those findings were open on the evidence and do not reveal error.

Dr Edwards

I do not accept the submission that the Arbitrator rejected Dr Edwards’ opinion. On the contrary, the Arbitrator expressly stated that he accepted Dr Edwards’ views at least in so far as they throw some doubts as to the nature and extent of the pathology in the right shoulder resulting from the wrist injury as opposed to pre-existing conditions. This assessment of Dr Edwards’ evidence went to the weight he attached to it.
The Arbitrator identified a number of factors that diminished the weight to be attached to Dr Edwards’ opinion.
Firstly, Dr Edwards’ clinical examination of the right shoulder did not record any measurements of the upper extremities or make any reference to wasting on examination.
Secondly, Dr Edwards recorded that Mrs Hickey uses her left hand for most activities which supported the inference of relative disuse of the right hand, particularly in a person who is right hand dominant.
Thirdly, Dr Edwards applied the wrong legal test. His ultimate conclusion was that he did not consider Mrs Hickey’s accepted work injury to be “reasonably a substantial contributing factor to any of her complaints other than the wrist injury”. For the reasons that have been discussed (at [82] above), that was not the appropriate test to apply when considering whether the alleged consequential condition resulted from the accepted work injury.
Fourthly, Dr Edwards did not specifically consider Mrs Hickey’s allegation, namely that the development of the right shoulder condition was due to the immobility and disuse of the limb as a result of the effects of the injury to the right wrist and treatment. Rather, he expressed the view that the right shoulder complaints were not “reasonably related to the arthroscopy, nor are they related to the injury on 6 April 2013”. That was not the case being put forward.
For these reasons it was open to the Arbitrator to place less weight on Dr Edwards’ opinion than Dr Challender’s whom the Arbitrator accepted entirely.

The bin incident

The submissions with respect to the bin incident are recorded at [101]-[105] above and I do not repeat them. In substance, Inghams Enterprises’ submission with respect to the so called bin incident is that it provided both a temporal and credible explanation for Mrs Hickey’s symptoms which, so it was submitted, were not adequately explained either by Mrs Hickey or through the medical evidence.
This submission in effect repeats the submissions that were made to the Arbitrator and rejected. The only alleged error with respect to the bin incident is an allegation of error “in finding on the balance of probabilities that there was a causal connection between the right shoulder condition and the right wrist injury”. That is not a submission in support of a factual, legal or discretionary error. Rather, it is merely an expression of dissatisfaction with the Arbitrator’s ultimate conclusion. As this is an appeal under s 352 of the 1998 Act, the appeal must be characterised by the identification and correction of legal, factual or discretionary error. Ingham’s submissions on this issue do not come close to the identification of such error.

The Arbitrator accepted that there were no specific records of complaints of right shoulder problems immediately after the incident and indeed before the reported bin incident. He accepted however that during that period the wrist problems were undoubtedly the focus of treatment, and he accepted Mrs Hickey’s evidence of disuse of the right arm and shoulder after the initial incident and the subsequent surgery. It has not been suggested that such disuse did not occur. Having made those findings, the Arbitrator quite correctly exercised caution in relation to the use of clinical notes in the period after the accepted injury and the bin incident: Demasi; Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, but not on this point).
Notwithstanding the absence of recorded complaints, the Arbitrator accepted that Mrs Hickey more than likely did experience an increase in discomfort in her right shoulder as a result of lack of use between April and July 2013. That lack of use was, as he found, the result of the wrist injury. Therefore, accepting that there probably was an increase in symptoms, although unreported, the effect of the bin incident in the context of the claim for permanent impairment compensation was, as the Arbitrator found, less significant.
Further, the Arbitrator correctly concluded that contemporaneous corroboration is not a prerequisite for Mrs Hickey to succeed: Department of Aging, Disability and Home Care v Findlay [2011] NSWWCCPD 65; The Presbyterian Church (New South Wales) Property Trust v Pingol [2014] NSWWCCPD 80.
Those findings were open to the Arbitrator and do not reveal any error in his assessment, on the balance of probabilities, concerning the causal connection between Mrs Hickey’s right shoulder condition and her right wrist injury.
For these reasons I reject the submission that the Arbitrator gave insufficient weight to the bin incident.

CONCLUSION

The Arbitrator correctly found on the balance of probabilities that disuse of the right arm and shoulder, as a consequence of the injury on 6 April 2013 and subsequent treatment, including surgery, resulted in a consequential condition in the right shoulder.

DETERMINATION

The Arbitrator’s determination of 19 May 2017 is confirmed.

Judge Keating
President

22 August 2017