Jankovic v Brightwater Care Group
[2019] WADC 36
•21 MARCH 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JANKOVIC -v- BRIGHTWATER CARE GROUP [2019] WADC 36
CORAM: GILLAN DCJ
HEARD: 19 OCTOBER 2018
DELIVERED : 21 MARCH 2019
FILE NO/S: APP 51 of 2018
BETWEEN: ANITA JANKOVIC
Appellant
AND
BRIGHTWATER CARE GROUP
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARIBTRATION SERVICE (WA)
Coram: ARBITRATOR EAST
File Number : A47375
Catchwords:
Appeal - Workers' compensation - Duty to consider the evidence and make a decision
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave granted
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr T H Offer |
| Respondent | : | Mr P E Jarman |
Solicitors:
| Appellant | : | Vertannes Georgiou |
| Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Beer v Duracraft Pty Ltd [2004] WASCA 192
Bobic v City of Armadale [2013] WADC 126
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Rodgers v Amcor Ltd [2018] WADC 134
Sotico Pty Ltd v Williams [2007] WASCA 112
Summit Homes v Lucev (1996) 16 WAR 566
Tubemakers of Australia Ltd v Fernadez (1976) 10 ALR 303
Velez Pty Ltd v Tudor [2011] WASCA 218
GILLAN DCJ:
This is an application for leave to appeal and, if leave is granted, an appeal from the decision of the workers' compensation arbitrator, Ms M East, made on 20 April 2018.
The appellant made a claim for workers' compensation in relation to an alleged injury to her left shoulder, left wrist and left forearm (the injury) said to have occurred in the course of employment on 10 November 2015. There was an initial acceptance of liability and weekly payments and statutory allowances were made until 27 September 2017.
On 20 September 2017, an arbitrator determined there was a genuine dispute as to the respondent's liability to pay compensation and the weekly payments were discontinued.
By an application dated 3 November 2017, the appellant sought an order for the payment of weekly payments from 27 September 2017 and continuing and payment of reasonably incurred statutory allowances for the treatment of the injury. The arbitrator dismissed the applicant's application.
The injury was alleged to have been suffered by the appellant in the course of her duties as a hotel services cleaner at a residential aged care facility. Specifically, the injury was said to have occurred when she was moving a large motorized chair in order to clean under and behind it.
In summary, the arbitrator, in her reasons for dismissing the application:
1.Did not expressly make any findings of facts about the events of 10 November 2015, although she expressly accepted the appellant's credibility about:
(a)the events of that day[1];
(b)the appellant's assertion that she had and was still suffering symptoms following that event[2]; and
(c)the appellant's assertion that she had suffered a departure from a state of good health while employed at Brightwater.[3]
Evidence about each of those matters was described by the arbitrator as being of a subjective nature;[4]
2.Summarised the evidence of Professor Ackland[5] as to the forces required to shift the chair, accepted the evidence of Mr Talbot[6] as to the degree of difficulty he had faced in moving the chair in question, questioned the evidence of Ms Parrick,[7] the respondent's service manager, as to Ms Parrick's view that the chair was easy to move but did not make any findings of fact resolving the differences between them;
3.Summarised, but did not analyse, the competing medical evidence by reference to any facts that might have been found and so made no determination as to what of the considerable volume of evidence might be accepted and what might be rejected by her;[8] but
4.Determined the matter on the basis that there was no consensus between the medical specialists on a diagnosis of the cause of the appellant's symptoms which led her to find that she was not satisfied on the balance of probabilities that the appellant had suffered an injury.
[1] Arbitrator's reasons par 89.
[2] Arbitrator's reasons par 89.
[3] Arbitrator's reasons par 85.
[4] Arbitrator's reasons par 89.
[5] Which was incorrectly under the heading of lay evidence.
[6] A co-worker of the appellant.
[7] Which was questioned by the arbitrator: Arbitrator's reasons par 26.
[8] Arbitrator's reasons pars 28 – 69.
The arbitrator, relying on the authority of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19, decided that subjectively experienced symptoms, without a diagnosed accompanying physiological or psychiatric change were not sufficient to establish that the applicant has suffered an injury arising out of or in the course of her employment.[9] For reasons which I will set out below, I grant leave to appeal and allow the appeal. I uphold the appellant's application dated 3 November 2017.
[9] Arbitrator's reasons at par 89.
Leave to appeal
The application for leave is brought pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
It is common ground that I am not to grant leave to appeal unless a 'question of law is involved'.
In Rodgers v Amcor Ltd [2018] WADC 134, Gething DCJ said at [42]:
The pre-requisite to the District Court being able to grant leave in the present appeal is that 'a question of law is involved'. A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'. Further, an appeal may 'involve' a question of law where an error of law, or an error of mixed law and fact, is involved. 'An error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them, but no error of law is involved in making a wrong finding or inference of fact on the evidence'. An error of fact alone is insufficient.
By her notice of appeal, the applicant says that the question of law involved is:
1.The learned arbitrator erred in law in focusing upon an inquiry into what injury the appellant might have sustained rather than addressing the correct issue, being whether the appellant had experienced a physiological change or disturbance of the normal physiological state that could be said to be an alteration from the functioning of a healthy body.
2.Having accepted that the appellant:
(a)suffered departure from a state of good health; and
(b)has suffered symptoms and appeared to be genuinely suffering, the learned arbitrator erred in law by finding that the lack of definitive diagnosis precluded a finding of injury.
Relevantly, in s 5(a) of the Act 'injury' is defined as 'a personal injury by accident arising out of or in the course of the employment, or whist the employee is acting under the employer's instructions'.
It is common ground between the parties that the arbitrator correctly identified that the term 'injury' within par (a) was used in its primary sense and required proof that there was something that can be described as a physiological change or disturbance of the normal physiological state of the claimant: May [45] ‑ [52] and [71] – [79].[10]
[10] It is important to note that definition in the Act also requires the physiological change or disturbance of the normal physiological state must also be proven to have been caused by an accident and be in the course of employment but that neither of those matters were in issue in this matter.
The High Court in May made it clear, however, that proof of the physiological change or disturbance of the normal physiological state of the claimant could, in an appropriate case, be based on the account of a claimant and by appropriate inferences which could be drawn from the sequence of events and medical evidence which might provide objective evidence about the mechanism of injury, that explain the subjectively reported symptoms or provide support for a pathology consistent with those symptoms. In other words, it is not necessary for there to be a certain diagnosis of a medical condition but that there must be something more than an assertion by an employee that they feel unwell: May [62], [80].
In my view the arbitrator fell into an error of law or a mixed error of law and fact in focusing on the inability of the medical specialists to definitely diagnose the nature of any injury suffered by the appellant because:
1.She failed to make necessary findings of fact as to the events or resolve important differences as to how difficult it was to move the chair. That failure resulted from a misunderstanding of her role. The arbitrator's role was to consider all of the available evidence so as to determine what had occurred on the relevant date and then to determine if what had occurred amounted to an injury: May [49]; Beer v Duracraft Pty Ltd [2004] WASCA 192; Summit Homes v Lucev (1996) 16 WAR 566, 569; Sotico Pty Ltd v Williams [2007] WASCA 112 [23] – [24]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17.
2.Medical opinion evidence may well be an important part of the evidence which could be taken into account by the arbitrator but medical expert or opinion evidence is simply evidence of facts from which a finding of injury might be inferred or established. Ultimately the question of whether there was an injury was a question for her determination on all of the facts and not a question answered solely by a consensus as to diagnosis: Beer v Duracraft Pty Ltd.
3.So, by focusing on the lack of consensus as to diagnosis, the arbitrator:
(a)failed to apply her findings that:
(i)she did not doubt the credibility of the appellant in relation to the circumstances of the event which are said to constitute the accident, moving the chair, and the onset of the appellant's symptoms: reasons at par 89;
(ii)there was consensus among the medical specialists that the appellant had suffered and continued to suffer pain: reasons at par 85; and
(iii)the appellant continued to suffer symptoms and was genuinely suffering: reasons at par 85;
(b)failed to make necessary findings of fact such as what did the appellant do when moving the chair and what was the degree of difficulty of moving the chair and use those findings in assessing the medical evidence;
(c)overlooked the significance of the GP certificate which was part of the constellation of facts which supported a sudden onset of the symptoms; and
(d)misunderstood the decision in May to mean that as there was no consensus as to the pathology of the injury this precluded her from determining that the onus of proof had been discharged.
Further, the High Court made it clear in Tubemakers of Australia Ltd v Fernadez (1976) 10 ALR 303 that where a trier of fact has before it evidence that an injury could have caused a condition complained of, a trier of fact is entitled to have regard to both the expert and non-expert evidence of other significant circumstances and may infer, where appropriate, that injury was caused by an accident: see Mason (310) & Murphy J (312).
Accordingly, I would grant leave to appeal.
Review of the decision of the arbitrator
By s 247(7)(a) of the Act:
(7)On hearing an appeal made under this section, the District Court may –
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made at first instance; and
…
Both counsel agreed that if the appeal were to be allowed then I should proceed to determine the matter rather than remit the matter for the consideration of the arbitrator or another arbitrator.
The law relating to the principles on appeal are set out in some detail in Rodgers v Amcor Ltd [37] – [38] (Gething DCJ).
I am to undertake a real review of the decision to determine if there is a 'proper basis' for disturbing the decision such as an error of 'fact, law or logic'. Unless the 'review' persuades me that the arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.
I find here there is a proper basis to reverse the arbitrator's decision.
In my view there is evidence from which I can and do conclude that, on the balance of probabilities, that the appellant suffered a personal injury by accident in the course of her employment.
In reaching that conclusion I am persuaded by the arbitrator's expressed view that she did not doubt the appellant's credibility and accept the evidence of the appellant contained in her witness statement and at the hearing before the arbitrator and find that:
1.When the appellant started her shift as a cleaner on 10 November 2015 she was symptom free.
2.The appellant was in Room 5 in House 6 at the residential aged care facility when, while sweeping the floor, she noticed food, dust and debris in or about and under a blue coloured recliner/lift chair. She tried to use the sweeper to clean under and behind the chair and to lift the chair using the remote control but was unsuccessful.
3.The appellant then tried to move the chair by pulling it and wriggling it towards her from between the bedside cabinet and the bed. When she was not able to move the chair sufficiently to clean behind it, she placed her left arm further up towards the vertical back rest and right hand on the arm rest and pulled and wriggled the chair forward before using the carpet sweeper under it.
4.The appellant then moved the chair back into position using the same twist and turn wriggling motion with both arms.
5.The chair was very heavy to move. I am bolstered in my finding about this by the evidence of Professor Ackland which I outline below at [28].
6.The appellant did not feel pain immediately but once she went home that evening she 'began experiencing severe pain down the whole of the left arm, left hand, left wrist and left shoulder area.'[11]
[11] Arbitrator's reasons par 12 – 20 and 89.
In making those findings I accept the confirmatory evidence of the appellant's work colleague, Mr Talbot, about the difficulty he had faced in moving the same chair on other occasions. I note that Mr Talbot's credibility was accepted by the arbitrator.[12]
[12] Arbitrator's reasons par 21 – 22.
I have not placed a great deal of weight on the evidence of Ms Parrick,[13] the office manager, about how easy she considered it to be to move the chair. This is because it became clear under cross‑examination that Ms Parrick had moved the chair by positioning herself to the side of the chair and pushing it along a plane to one side and only after first having moved the bedside cabinet out of the way.[14] This is different to the appellant's evidence as to how she had moved the chair: see [24] above.
[13] Statement AB 195 – 197 Evidence AB.
[14] AB 96 – 97.
Further, Ms Parrick also gave evidence that the chair in question was now moved by contractors because it had been placed on a list of heavy items as a result of this event.
I have accepted the expert evidence of Professor Ackland who is an expert in biomechanics and a Professor at UWA. His expert opinion is contained in his report[15] and his oral evidence.[16] It is clear from the photographs of the chair that it is large and it is not on castors. Ultimately, Professor Auckland was of the view that moving the chair had the potential to cause the injury. I accept Professor Ackland's evidence largely because it is independent and is consistent with the evidence of both the appellant and of Mr Talbot.
[15] AB 203 – 212.
[16] AB 99 – 115.
Based on Dr Ackland's evidence I find that the chair weighed 30 kg, and that as much as 27.7 kg of force could be required to move it. The amount of force would vary depending on how someone attempted to move the chair.
I have reviewed the various medical reports in the chronological order in which they were obtained and by reference to the facts as I have found them to be and in light of Dr Ackland's evidence.
I do not intend to summarise all of the reports. I make the following findings based on the reports and in doing so will, if it is necessary to do so, explain why I have accepted or discounted the various medical reports relied on by the parties: Sotico Pty Ltd v Wilson [23] – [24], Velez Pty Ltd v Tudor [2011] WASCA 218 [68], Bobic v City of Armadale [2013] WADC 126 [38] – [42].
First in time, the Certificate of Capacity completed by Dr Sullivan following review on 11 November 2015 which provides a diagnosis of left wrist and left shoulder sprain.[17] This is an important document because of its proximity in time to the event in question and because that certificate supports the contention that the appellant suffered some adverse effects from the events of the preceding day.
[17] AB 348 – 349.
There are a series of reports by Associate Professor Thompson a consultant occupational physician dated 30 May 2016 (following review of the appellant on 20 May 2016),[18] a further report dated 10 October 2016 (following review of the appellant on 19 September 2016),[19] a supplemental report dated 10 October 2016[20] (addressing a specific question asked), a letter dated 25 January 2017[21] (following provision of a physical assessment report which states the force required to move the chair would be about 7 kg), a letter dated 8 March 2017[22] (addressing a specific question by reference to photographs of a chair which has castors), a report dated 6 June 2017 (following review of the appellant on 18 May 2017)[23] and a report dated 4 December 2017 (following reports by Dr Kimberley).[24]
[18] AB 284 – 294.
[19] AB 295 – 304.
[20] AB 305 – 307.
[21] AB 308 – 309.
[22] AB 310 – 314.
[23] AB 315 – 328.
[24] AB 329 – 343.
In his reports Associate Professor Thompson expressed views to the effect that while the appellant was in pain, he was not convinced that the appellant suffered injury in the way described by her.
On a close reading of Associate Professor Thompson's reports it is clear that his early reports dated 30 May 2016 and 10 October 2016 and his supplemental report dated 10 October 2016 are, at least in part, based on his belief that the action of moving a chair was a daily occurrence for a cleaner and so was unlikely to have caused injury or, at least, the injury the appellant said she had suffered.
Further, Associate Professor Thompson's letters dated 25 January 2017[25] and 8 March 2017[26] were based on incorrect information that he had been given by way of an occupational therapist's report of T Tarasenko which gave the opinion that the force associated with moving the chair was about 7 kg. The chair reviewed was on castors. Accordingly those letters carry little weight.
[25] AB 308 – 309.
[26] AB 310 – 314.
By the time he prepared his final two reports dated 6 June 2017 and 4 December 2017, Associate Professor Thompson had been provided with Professor Ackland's report.
Associate Professor Thompson's report of 6 June 2017 is to the effect that the appellant reported significant discomfort of a diffuse type but that he cannot attribute any particular abnormality to it.[27]
[27] AB 325.
The report is internally inconsistent because Associate Professor Thompson recounts that the appellant told him she was still suffering pain in her hand which did radiate up into the elbow and to the shoulder from time to time which demonstrates that her shoulder was still symptomatic but reaches the conclusion that her shoulder is not inherently problematic[28] and that she had made a good recovery from any shoulder injury.[29]
[28] AB 318.
[29] AB 318, 323 and 326.
Associate Professor Thompson also gave his opinion on whether the appellant's current and past symptoms were consistent with the appellant's description of the accident.[30] In giving that opinion he misstated Professor Ackland's report when he referred to the amount of force that might have been required to move the chair, some 17 kg, rather than to the range of possible forces, up to 27.7 kg.
[30] Question 10 AB 325.
Associate Professor Thompson also described how the chair was moved by the appellant as a slide rather than a wiggle and pull as I have found it to be. Associate Professor Thompson again made the irrelevant point that in his view it is reasonable to expect a cleaner to move the chair.
Associate Professor Thompson concluded, however, that the appellant does not have the capacity to return to work in her pre‑accident duties and makes suggestions for her ongoing management including with physical and drug therapy.
In his final report dated 4 December 2017, Associate Professor Thompson recounts an increase in pain in the appellant's wrist and hand along with greater pain in her shoulder. He is of the view that there is no nerve impingement notwithstanding other reports he has seen that report impingement.[31] He also attributes her symptoms to illness behaviours but, inconsistently, seems to acknowledge ongoing pain and continues to recommend analgesic medication for the pain.
[31] Dr Kimberley's letters AB 337.
When read in their totality, Associate Professor Thompson's reports are, I find, affected by his incorrect understanding of both the actions involved in the appellant moving the chair and the force required to move the chair and with the initial and persistent view he took that any injury was of a trivial nature and within the usual range of duties of a cleaner.
In circumstances where I am satisfied that Associate Professor Thompson's views are based on an incorrect appreciation of those matters and where there is internal inconsistency in his reports, I have not given his views any great weight.
In November 2016 a review was undertaken of the appellant and a report prepared by Dr Cordova who describes his clinical practice as musculoskeletal. Dr Cordova is an approved WorkCover Specialist WA and a Fellow of the Australian Sports Medicine Federation.
At that time, in late 2016, Dr Cordova describes the appellant as having considerable tenderness both about the left shoulder, the left arm and the left hand, ongoing symptoms of burning pain and pins and needles. He also noted weakness in the left arm and left hand grip along with sensitivity to cold.
Dr Cordova reviewed the investigations which had been then undertaken including a bone scan of the wrist, ultrasound of the wrist and shoulder which showed the appellant had bursitis in her shoulder, MRI to the cervical spine to rule out spinal injury, cervical disc protrusion or nerve root impingement and nerve conduction and EMG undertaken by Dr Silbert.
Dr Cordova was of the opinion that the appellant had an obvious left upper limb regional pain syndrome with global rather than radicular symptoms and compatible with marked neural sensitisation.[32] He offered the further view that sometimes non‑radicular neuropathic pain syndrome could result from neural sensitisation either at a central or peripheral level initiated by a traction injury that might initially be considered to be of a trivial nature.[33] He was convinced that the appellant was suffering pain from a traction injury, particularly, because she was not initially inclined to treat this matter as a workers compensation claim.
[32] AB 219.
[33] AB 219.
Dr Cordova accepted that some biopsychological issues may have enhanced the pain condition but recommended further treatment of her hand and ongoing medication. He recommended a pain specialist, Dr Majedi.
Dr Majedi reviewed the appellant on 3 December 2016. There is only a one page consultation record which record seems to confirm that Dr Majedi did not consider that the appellant was suffering from Chronic Regional Pain Syndrome but that there was generalised non‑specific neuropathic pain, left shoulder bursitis and spurs and elements of Somatic symptom disorder.[34]
[34] An exaggerated response to symptoms of injury.
Dr Majedi continued to recommend ongoing treatment by way of the reduction of Lyrica but the continuation or new prescription of other pain relief drug therapy, nightly hand baths, the application of magnesium and other products, hand therapy.
What I draw from the short report of Dr Majedi is that he did not doubt that the appellant was suffering pain and proposed the continuation of the treatment of the appellant's pain and other symptoms.
The reports of two neurologists also formed part of the materials before me. The report of Dr K Grainger dated 26 November 2017 reported that he doubted that there were 'bruised nerves' because he would have expected immediate pain on injury but there could have been a 'stretching injury' from which he would have expected there to be a recovery. He could find no organic neurological injury and suggested an orthopaedic opinion.
The other is a report by Dr Silbert dated 15 January 2018. Dr Silbert had previously conducted nerve conduction studies on the appellant.
Dr Silbert found that the appellant had a mild musculoskeletal injury with left subacromial bursitis with evidence of mild nerve impingement from that. There were signs of sensitisation particularly associated with increased anxiety and depression but he considered the appellant's primary issue to be related to a musculoskeletal injury to the left shoulder.
Importantly in that regard, Dr Silbert agreed[35] with the assessments of Dr Zandi as to the mechanism of how the injury could have occurred, by a traction injury, especially given the temporal relationship with the injury at work.[36]
[35] AB 240.
[36] I also note that he also agreed with that of Dr Kimberley, an orthopaedic surgeon, whose opinion was not provided but which is touched on in Dr Silbert's report[36] and in Associate Professor Thompson's reports as relating to ongoing problems with the left shoulder for which a surgical option was offered to decompress a spur in the left shoulder.
Dr Zandi is an orthopaedic surgeon. There are reports of Dr Zandi initially in March 2017 leading through to 22 March 2018 in which he opined that there had been a traction injury to the appellant's arm while pulling the chair which actions pulled on the structures in the shoulder. Dr Zandi was of the view that the injury itself cannot be clearly identified by current imaging.
Dr Zandi reports neuropathic symptoms throughout the appellant's arm including increased sensitivity to all of her peripheral nerves and that her ulna nerve is very irritable at the elbow. In essence he says that the traction injury to the left upper limb has resulted in ongoing pain in the left upper limb.
Competing views as to the possibility of an orthopaedic injury are the subject of reports by Dr Honey and Dr Cairns, both orthopaedic surgeons.
Dr Honey saw the appellant once on 13 July 2016. He expressed the view that she had some shoulder bursitis with bursal impingement. Dr Honey was not asked to and did not express any suggestion that there had not been an injury suffered. Dr Honey expressed the opinion that he was not sure why the appellant's shoulder was sore but he was sure that surgery would not make it better.
Dr Cairns saw the appellant in March 2018. He held a different view of the appellant to that of Dr Zandi.
I note that he was briefed with a schedule of documents which appear to have included 106 documents but which I am not able to identify with any precision except to say that it did include the claim form, the expert report of Professor Ackland and at least some of the reports of Associate Professor Thompson.
It is apparent that Dr Carins has placed significant weight on the reports of Associate Professor Thompson including his report of 30 May 2016 and that the appellant's history was taken by Dr Cairns by reference to that report.
Dr Cairns' report does not touch on the circumstances in which the injury is said to have occurred other than to say that 'the injury is alleged to have been sustained when moving a heavy reclining chair over a vinyl floor surface in the conduct of her work activities … she was not immediately aware of having sustained injury … there was no pain until I got home'.[37]
[37] AB 271.
He was not of the view that the appellant had suffered an orthopaedic injury. Somewhat inconsistently, Dr Cairns says that he agrees with the diagnosis and opinions of Dr Majedi but diagnosed the appellant as having chronic, non‑specific regional pain dysfunction syndrome (CRPD Syndrome), diffuse neuropathic pain and probable somatic symptom disorder.[38] Dr Majedi specifically excluded CRPD Syndrome as a diagnosis.
[38] AB 271.
Dr Cairns was clearly of the view that the appellant's difficulties were of a psychological nature.
While Dr Cairns clearly undertook a full physical examination of the appellant I do not place as much weight on the views expressed by him because his description of the injury does not reflect the nature of the wriggling action taken to move the chair and because he seems to have placed a great deal of emphasis on the report of Associate Professor Thompson which I have rejected.
On my analysis of the expert medical reports I find that each of Dr Cordova, a WorkCover specialist, Dr Zandi, an orthopaedic surgeon and Dr Silbert, a neurologist support that a traction injury could have caused hypersensitisation of the nerves in and around the appellant's left shoulder and pain down through the arm to the hand. The reports of each of those medical specialists are based on their understanding that the chair was heavy and the appellant was not able to simply slide the chair forward but had to make a number of attempts to move it and to wriggle the chair forward. This is consistent with the findings I have made as to how the chair was moved and the force required to move it.
In addition, all of the medical specialists seemed to be in consensus that the appellant did and is continuing to suffer pain.
In all of the circumstance I am satisfied on the evidence of the appellant as to how she moved the chair and about when she suffered the onset of pain taken, together with the diagnosis on 11 November 2015, the following day, of left shoulder sprain and left wrist sprain, the supporting evidence of Mr Talbot, the opinion of Professor Ackland as to the force required to move the chair and the medical opinions of Dr Cordova, Dr Zandi and Dr Silbert, that the appellant suffered an injury, being a traction injury to her left shoulder and wrist, in the course of her employment on 10 November 2015.
Given that the appeal concerned the issue of whether there had been an injury within the meaning in the Act, the parties are agreed that there is insufficient material before me for me to ascertain whether the appellant has suffered a total incapacity or a partial incapacity as a consequence of that injury. As a consequence I propose to refer the matter to a different arbitrator for an assessment of that matter.
I uphold the appeal and will hear the parties as to the appropriate orders to remit the matter for a determination of whether the appellant has suffered a total incapacity or a partial incapacity and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to her Honour Judge Gillan21 MARCH 2019
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