Krstevska v Fast & Fluid Management Australia Pty Ltd - [2012] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69
APPELLANT:		Vera Krstevska
RESPONDENT:		Fast & Fluid Management Australia Pty Ltd
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-4241/12
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		24 August 2012
DATE OF APPEAL DECISION:		21 November 2012
SUBJECT MATTER OF DECISION:		Principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 and Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; assessment of evidence; absence of evidence of injury; unsatisfactory submissions by respondent on appeal
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Nikolovski Lawyers
Respondent:	Kaden Boriss
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 24 August 2012 is confirmed. No order as to costs.

BACKGROUND TO THE CLAIM

Vera Krstevska started work for the respondent as a process worker in 1987 or 1988. She is right-hand dominant. Her job was to machine valves for use in a paint-mixing machine. She worked standing up with her head and neck craned forward. Her duties initially required constant and repetitive movement of her right arm in particular. In the early years, there was no job rotation and the only breaks she got were at morning tea and lunch.
She developed symptoms in her right hand and left elbow in 1999. She remained at work and had physiotherapy, which gave some initial relief though the symptoms returned some months later. Her left elbow symptoms resolved, but her right-sided symptoms spread up her arm to her shoulder.
In January 2003, Ms Krstevska reduced her working week from full-time to 7.5 hours per day three days per week. With the reduction in her hours, she found her pain more bearable, but she still had a problem. By May 2003, Ms Krstevska had pain in the whole of her right arm, right shoulder, and her neck.
In or about 2002 or 2003, Ms Krstevska’s job became automated and her duties became much easier. She was now only required to insert a valve into a machine and press a button. Once the valve was machined, she removed it and put it into a box. In addition to her duties becoming easier, the respondent introduced a rotation system and workers were moved to different machines. Ms Krstevska felt that the new arrangement was a much better work system.
Ms Krstevska stopped work in December 2006 and has not returned to paid employment. She claimed lump sum compensation for whole person impairment as a result of the condition of her right arm/shoulder and neck. In the course of that claim, the insurer arranged for her to be examined by Dr Ho, who found her to have a restricted range of movement in her left shoulder.
The claim for lump sum compensation was settled in February 2007 for $11,250 in respect of nine per cent whole person impairment as a result of the condition of Ms Krstevska’s right upper extremity (six per cent) and cervical spine (three per cent).
In November 2010, Ms Krstevska’s general practitioner at the Bayview Medical Centre referred her for investigations of her left shoulder. An ultrasound on 10 November 2010 revealed a large full thickness tear of the anterior supraspinatus extending into the mid tendon.
On 29 August 2011, Ms Krstevska claimed compensation for a six per cent whole person impairment as a result of injury to her left upper extremity together with additional compensation because of a deterioration in the condition of her right shoulder and her neck. She alleged that the injury to her left shoulder had been caused by “repetitive process work” with the respondent and by increasing the use of her left arm as a result of the injury to the right arm.
The insurer disputed the left shoulder claim on the ground that Ms Krstevska suffered no injury to that part of her body arising out of or in the course of her employment with the respondent, and, in the alternative, the left shoulder condition had not resulted from favouring the right shoulder. Its case was that Ms Krstevska had never complained about her left shoulder until 2010, four years after she stopped work for the respondent, and there was no contemporaneous evidence that she had injured her left shoulder at work, or any evidence that she had overused her left shoulder as a result of the condition of her right shoulder.
The claim for additional lump sum compensation in respect of the right shoulder and the neck was not disputed (save as to quantum) and will be assessed by an Approved Medical Specialist (AMS).
Ms Krstevska’s case rested on evidence from Dr Deveridge in reports prepared in 2011 to the effect that her left shoulder injury was attributable to the work she did with the respondent.
At the arbitration on 23 August 2012, the parties’ respective legal advisers made lengthy submissions, but neither side sought to call any oral evidence. The Arbitrator delivered an extempore decision in which she said that she did not have the “level of proof” (T31.25) to conclude that the injury was work related and that she did not accept the left shoulder condition resulted from the right shoulder injury. She made an award for the respondent in respect of the claim for injury to the left upper extremity.
The Commission issued a Certificate of Determination on 24 August 2012 in the following terms:
“1. An Award for the Respondent in respect of the Applicant’s claim for injury to the left upper extremity.
2. The Applicant’s claim for further, lump sum compensation for injury to the cervical spine and right upper extremity is remitted to the Registrar for referral to an Approved Medical Specialist. The deemed date of injury is the 14 April 2003 and the documents to be sent to the Approved Medical Specialist are the Application and all attached documents, the reply and all attached documents, the late documents filed by the Respondent on the 2 August 2012 and the 21 August 2012.”

Ms Krstevska has appealed the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     dismissing the opinion of Dr Deveridge as offending the dicta in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) (Makita v Sprowles);
(b)     finding that there was no objective evidence of symptoms in the left shoulder in 2005 (objective evidence of symptoms in 2005);
(c)     finding that Ms Krstevska’s injury was acute in 2010, in the absence of any medical opinion to support that finding (lack of evidence of an acute injury in 2010);
(d)     giving excessive weight to the “lack of contemporaneous medical evidence” or complaints of pain in the left shoulder up until 2010 (lack of contemporaneous medical evidence);
(e)     dismissing Ms Krstevska’s evidence without any adverse findings as to her credibility as a witness (credit), and
(f)      stating, with respect to the alleged “consequential injury”, that the onus was on Ms Krstevska to prove the injury was caused at or in the course of employment and that work was a substantial contributing factor to the injury (the consequential condition).

EVIDENCE

Ms Krstevska

Ms Krstevska’s evidence is in her statements dated 20 October 2006 and 20 April 2012. The essential matters in the 2006 statement have already been summarised earlier in this decision. It is sufficient to note at this stage that Ms Krstevska made no mention in her 2006 statement of any symptoms in, or injury to, her left shoulder.
In her 2012 statement, Ms Krstevska said that she started to have problems with her left shoulder “in about 2005”. Later, she said:
“6. Towards the end of my employment by 2005 I had developed some symptoms in my left shoulder and I believe Unanderra Physiotherapy were treating me not only for the right shoulder and neck but also for the left shoulder at that time.”
She added that, over the years, the condition in both shoulders had deteriorated. She was not receiving treatment at the time of her 2012 statement, but she did “go for some physiotherapy but it did not help [her] so [she] just [took] Panadol to try and manage the symptoms”. She said she had a lot of trouble doing things around the house and her husband did most things for her. She said that she had “difficulty lifting pots, washing baskets etc”. Her husband put the washing on the line because she was unable to stretch. She was unable to do up her bra because she could not get her arm behind her back.
She believed the problems with her “right shoulder” were caused by the repetitive nature of the work with the respondent. It is unclear if this is an error and should be “left shoulder”.

Medical evidence

Medical treatment for Ms Krstevska’s right shoulder and neck symptoms started in 2003. Though Ms Krstevska saw several doctors and had extensive investigations of her neck and right shoulder at that time, it is not in issue that she had no symptoms in her left shoulder until well after 2003. The following summary will therefore focus on the later medical evidence.
Dr Deveridge first saw Ms Krstevska at the request of her solicitors on 27 September 2004. In his report of 28 September 2004, he took a history that, in the early years, Ms Krstevska’s work required forceful pressure with both arms to push parts together. In addition, she also lifted boxes weighing up to 10 kg. She gradually developed pain around her right shoulder, the base of her neck and her right arm. Her pain increased with physical activity and tended to build up during the course of her work shift. She had difficulty lifting things, even a cup of coffee. Dr Deveridge took no history of any left-sided symptoms.
On 24 January 2005, Dr Ho, orthopaedic surgeon, examined Ms Krstevska on behalf of the respondent’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz). In his report of 1 February 2005, Dr Ho recorded the following history:
“She initially started to notice symptoms in the right upper limb. The pain probably first started in the hands and then shifted to the elbow and shoulder. She was treated for tennis elbow and subsequently has incurred impingement syndrome of the right shoulder.
She said that about two years ago, the pain shifted to her neck and she has problems in the neck.”
Under “Current Symptoms”, Dr Ho recorded:
“She has pain over her shoulders. Most of the pain was at the back of the shoulder, especially over the medial scapular muscle area on the right side. She was most painful on the upper part of the medial scapular muscle as well as the trapezius muscle.
She had problems lifting her arm and in particular, lifting the arm above shoulder level was very difficult and the arm was not strong.”
Dr Ho said that both shoulders were stiff and could only flex to 150 degrees bilaterally and abduct to about 110 degrees. Extension, adduction and external and internal rotation demonstrated a good range of motion and were all symmetrical bilaterally. He said she had pre-existing cervical spondylosis in her neck.
In answer to the question, “Do you feel that the condition from which the claimant is suffering is a work-related condition?” Dr Ho wrote:
“I do not believe the work injury caused the problem in her neck.
For the right shoulder, I do not agree that this is a case of rotator cuff impingement. This is more likely a case of medial scapular muscle dysfunction.
She demonstrates symmetrical loss of movement in flexion and abduction while rotation demonstrated a very good range.
The pain, loss of movement and weakness can be related to the work condition.”
Dr Deveridge provided a supplementary report on 25 July 2005 in which he reviewed notes from Ms Barker (referred to by Dr Deveridge as Baker), a physiotherapist who treated Ms Krstevska’s neck, shoulder and arms between 1999 and 2002. He confirmed that the job became easier when the premises became automated three or four years ago.
Dr Farlow, consultant surgeon, saw Ms Krstevska at the request of Allianz on 25 November 2005. He recorded her symptoms to include her right shoulder, neck, and right elbow. On examination, he found no obvious deformity in either shoulder joint. There was a full range of passive movement of both shoulders. Active movement of the right shoulder was reduced in flexion and abduction, but there was normal internal and external rotation and extension of both shoulder joints. He diagnosed cervical spondylosis and a muscle strain and spasm of the right levator scapulae muscle to the right scapula, the latter being work related.
In November 2010, Ms Krstevska saw her general practitioner complaining of left shoulder pain and a reduced range of movement. No history is recorded in the notes of the cause of the symptoms. She was referred for x-rays and an ultrasound. The x-rays revealed mild degenerative changes in the acromioclavicular joint. The ultrasound revealed a fairly large full-thickness tear in the anterior supraspinatus and extending into the mid tendon. The bicep appeared thicker than usual, which was consistent with some tendinosis of the biceps.
On 19 July 2011, Dr Deveridge reviewed Ms Krstevska and reported to her solicitors on 19 July 2011. He took a history that Ms Krstevska worked for the respondent for three days per week until she could no longer cope by December 2006. By that stage, her right shoulder and neck pain had increased and she had developed left shoulder pain and had tingling in both hands. Since stopping work there had been some further deterioration over recent years, particularly with her left arm.
Dr Deveridge said there had been no injury outside the workplace, but Ms Krstevska did become more reliant on the use of her non-dominant left arm for everyday activities. In 2010, she received physiotherapy for her left shoulder, but it did not help. She continued to see her general practitioner and took Panadol regularly. Left shoulder movements were: flexion 120 degrees, extension 50 degrees, external rotation 60 degrees, internal rotation 50 degrees, abduction 90 degrees and adduction 40 degrees.
Under “Opinion”, Dr Deveridge said:
“There has been some further deterioration in your client’s condition since my previous assessment. There is more restriction of right shoulder motion and she has developed painful impingement and restricted motion on the left side (where the radiology has demonstrated a full thickness rotator cuff tear). Review of my previous notes, and the updated history, indicates that your client was already developing some left shoulder symptoms during the course of her previous employment. The physiotherapist was apparently treating her neck, both shoulders and arms between 1999 and 2002. Your client can’t recall exactly when the left shoulder became symptomatic, but initial treatment focused on the more painful right shoulder. She is certain that she was experiencing left shoulder symptoms for the period leading up to her cessation of work in December 2006. The painful right shoulder was also placing more demand on the non-dominant left upper limb for work and every day activities. No other left shoulder injury was identified outside of the workplace since she ceased employment. On the balance of probabilities, residual neck and bilateral upper extremity disabilities are attributable to the nature and conditions of her employment with Fast and Fluid Management Pty Ltd.”
In a report dated 29 September 2011 addressed to Allianz, Dr Deveridge said in response to several questions put to him:
(a)     when he originally examined Ms Krstevska in 2004, he was only requested to assess the right upper limb and neck;
(b)     the left shoulder symptoms were separate from the cervical spine injury;
(c)     the only explanation for the full thickness rotator cuff tear in Ms Krstevska’s left shoulder was that it “resulted from her previous work tasks”;
(d)     so far as he was aware, there had been no further incident since Ms Krstevska stopped work;
(e)     the treatment focused on the more painful right shoulder for an extended period, and
(f)      there was “probably some biomechanical overloading of the left shoulder, as a consequence of the right shoulder problem and favouring that arm”. However, the rotator cuff tear would, on the balance of probabilities, have occurred during Ms Krstevska’s employment.
On 6 June 2012, Ms Krstevska again saw her general practitioner. The clinical notes record:
“Originally in 2006 had (R) shoulder
& (R) side of neck problems W.C.
~~Now~~ Left work in 2006 [indecipherable]
Quit because of ongoing pain
Now (L) shoulder is troublesome
after 2007 onwards
Possibly in compensation for
her (R) side, she used her (L) arm
more for ADL & hence the injury
– letter to insurer
to get medical opinion
- constant pain, can’t sleep on
(L) side
O/E ↓ A/C (L) side ? adhesive capsulitis”

MAKITA V SPROWLES

Submissions

Ms Krstevska’s solicitor, Ms Mortimer-Fox, submitted that the Arbitrator found Dr Deveridge’s opinion was based on the complaint Ms Krstevska made of having pain in the left shoulder since 2005 and, since the Arbitrator found there was no objective evidence of complaints to the left shoulder in 2005, the report offended the dicta in Makita.
It was submitted that Dr Deveridge set out Ms Krstevska’s work history and took a history of the onset of her left shoulder symptoms in 2005 and of a gradual deterioration since then. It was therefore clear what facts Dr Deveridge relied on to form his opinion and that he complied with the requirements for expert evidence as set out in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [85] (Hancock) where Beazley JA said:
“Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out 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.”
The respondent’s solicitor, who did not appear at the arbitration, submitted that Dr Deveridge’s evidence was in conflict with other evidence. His earlier reports did not refer to the left shoulder and the Arbitrator correctly pointed out that there was no evidence in Ms Krstevska’s second statement that her work tasks caused an injury to her left shoulder. The Arbitrator correctly evaluated the weight to be given to Dr Deveridge’s evidence by looking at whether the assumptions made were correct.

Discussion

Ms Mortimer-Fox has taken the quote from Hancock out of context. The quoted passage was in the context that the primary judge had relied on the fact that a treating doctor did not have a history of several post-work incidents as a ground for not accepting his opinion. In that context, the full quote at [85] is:
“With respect to his Honour, this reasoning is the same reasoning as that rejected by this Court in ASIC v Rich. Dr Summersell’s opinion did not have to expressly refer to the subsequent non-work related incidents in order for there to be a proper foundation for the opinion expressed in his reports. Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out 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.

In Hancock, it was not in issue (on appeal) whether the worker had suffered a work injury. The issue was the nature and extent of that injury and the weight to be attached to the treating surgeon’s evidence in circumstances where he did not have a history of subsequent non-work incidents. The first issue in the present case is whether Ms Krstevska injured her left shoulder in the course of or arising out of her employment with the respondent. The second issue is whether the left shoulder condition resulted from the accepted injury to the right shoulder.
On the injury issue, Ms Krstevska’s evidence is virtually non-existent. Her 2006 statement made no mention of her left shoulder. She gave a general description of her duties, both in the early years and from 2003. In the early years, the job involved “constant movement of the right arm in particular” (emphasis added). Ms Krstevska did not explain what movements or strains the work placed on her left (non-dominant) arm or shoulder, either in the earlier (more physically challenging years), or in the latter (much easier) years.
In her 2012 statement, which was prepared in support of the current claim, Ms Krstevska again said nothing about her duties with the respondent that might have caused or contributed to a left shoulder injury. She merely said, without any explanation of the cause, that she started having problems with her left shoulder in 2005. It is not even known if those symptoms commenced while she was performing her duties or at some other time.
Ms Krstevska’s statement that her “right shoulder” symptoms were caused by the repetitive nature of her work is of no probative value in a claim that alleges injury to the left shoulder. Even assuming, in Ms Krstevska’s favour, that her statement was a mistake, and that it should have referred to “left shoulder”, the statement is no more than a bare assertion of extremely limited probative value. Ms Krstevska gave no evidence about the nature of her work between 2003 and 2006 that allegedly caused or contributed to her left shoulder symptoms. In a case where injury was always in issue, that was a surprising omission.
In light of the evidence that, because of her right shoulder and neck symptoms, Ms Krstevska reduced her hours from five days per week to three days per week in 2003, and the evidence that, at about the same time, the work became “much easier”, because the job “became automated” and because of a “rotation system”, it is difficult to see what it was about the work in 2005 that caused symptoms in her left shoulder, assuming that is when the symptoms started.
The Arbitrator said, at T28.29:
“It seems to me that it is difficult in this case to find any evidence that the actual nature and conditions of the work up until 2006 caused any injury to the left shoulder. I know that that is what Dr Deveridge said in his initial report [in 2011] when he was looking at the left shoulder. He said it was due to the nature and conditions of the work but you have to look at what Dr Deveridge was, in fact, saying.
He has said that:
‘The left shoulder symptoms are separate from the spine injury. The only explanation for this tear is that it resulted from her previous work tasks.’
But there is simply nothing in [Ms Krstevska’s] second Statement. There is just no evidence before me that anything in the work tasks caused the injury.”
The Arbitrator’s statement that it was difficult to find “any evidence that the actual nature and conditions of the work up until 2006 caused any injury to the left shoulder” was open to her and was consistent with the evidence. In this context, the Arbitrator said that the only explanation for the tear in the left shoulder was Dr Deveridge’s opinion that it had resulted from Ms Krstevska’s “previous work tasks”. The Arbitrator correctly observed that there was nothing in the evidence, from either Dr Deveridge or Ms Krstevska, to support that conclusion. Given that the “work tasks” when the left shoulder symptoms allegedly started were “much easier” than in the early years, the Arbitrator’s statement was clearly correct. Arguably, it was not necessary for her to go further because this finding meant that Ms Krstevska had not established her case on the injury issue.
The Arbitrator then referred to Makita. She said, at T28.47:
“Now, under the dicta in Makita v Sprowles when you are evaluating the report of a medical expert or any expert, you must look at the facts on which - the proven facts that they base their report or you must look on the assumed facts [on] which they base their report. And it is important for - in evaluating the weight to be given to a medical specialist’s opinion to see any assumptions that they make, how have they or what steps have they taken or what have they done to try and prove that those assumptions are correct.”
The Arbitrator returned to this issue at T30.49 where she said that, if Dr Deveridge based his opinion on the assumption that the left shoulder symptoms started in 2005, the only record of any complaint was from the general practitioner who recorded in 2010 that the left shoulder was “troublesome after 2007 onwards”, which made it “extremely difficult to accept Dr Deveridge’s opinion is based on objective provable facts or assumptions which he can prove” (T30.52).
Before commenting on the statements by the Arbitrator at [47] and [48], it is appropriate to make some general observations about expert evidence in the Commission.
First, as Beazley JA observed in Hancock, at [82]:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.”
Second, to the extent that the expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101]–[102]; [105]–[134] (Rich)). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; [1985] HCA 58; 59 ALJR 844 at 846 (Paric)). In summary, “[a]n expert opinion is only as good as the foundation upon which it is based” (City of Brimbank v Halilovic [2000] VSCA 12 at [23]).
Last, the expert must explain his or her opinion; a bare opinion is of little weight (Makita at [59]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16). However, what is required by way of explanation will depend on the circumstances (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 (at [631]). An expert does not have to support every opinion by reference to an appropriate authority. Some propositions may be “so fundamental in a particular discipline as to be treated as virtually axiomatic” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89]). Moreover, experts are allowed to use their general experience and knowledge as experts, even though it is not articulated in their report (Rich at [170]).
Bearing these principles in mind, the Arbitrator was wrong when she said that, in evaluating the weight of expert evidence, it is important to look at what the expert has “done to try and prove that those assumptions are correct”. It is no part of an expert’s role to prove that the assumptions underlying the opinion are correct, or that the opinion is based on “objective provable facts”. The expert merely assumes certain asserted facts and expresses an opinion. If the foundation for the opinion is false or inadequate, or, if the opinion is unexplained, the opinion will be of limited probative value.
The first question is whether the assumed facts have provided a “fair climate” for acceptance of the opinion (Paric; Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76). The Arbitrator seems to have been of the view, though she did not express it as clearly as one might have expected, that Dr Deveridge’s reports, which included no history that the easier work from 2003 placed any stress or strain on Ms Krstevska’s left shoulder, or that it caused any symptoms in the left shoulder, did not provide a “fair climate” for the acceptance of his opinion. That conclusion was open. Even if that conclusion was wrong, or was not clearly articulated by the Arbitrator, there remained the question of whether Dr Deveridge explained his opinion.
The Arbitrator continued, at T29.4:
“I can’t see that there is anything in Dr Deveridge’s report which supports the view that the only explanation for this tear is that it resulted from her previous work tasks. He himself has said that the work tasks were easier after ’03 when [Ms Krstevska] was working three days a week working on a mechanised machine and working in rotated positions. He himself says that the earliest time that the symptoms appeared in the history he’s taken is ’05. There is just nothing there on which Dr Deveridge can base that conclusion.”
The Arbitrator added that Dr Deveridge’s evidence that the pathology revealed in the ultrasound occurred during Ms Krstevska’s employment was “a very difficult conclusion” (to accept) (T29.35).
These passages addressed the need for Dr Deveridge to explain his opinion. The Arbitrator was effectively saying that Dr Deveridge’s reports did not explain his conclusion that the only explanation for the pathology in the left shoulder was the work that Ms Krstevska did with the respondent. Such a proposition was not so “axiomatic” that it did not require an explanation. That was especially so when he had a history that Ms Krstevska’s duties became easier, and her hours shorter, from 2003, and where there was no evidence that the easier duties put any strain on Ms Krstevska’s left shoulder or caused her symptoms.
Moreover, Dr Deveridge’s 2004 report expressly noted that Ms Krstevska’s work required forceful pressure with both arms, but only “in the early years” and not in the period after 2003, when her left shoulder symptoms were alleged to have developed. It follows that there was no valid basis for Dr Deveridge’s opinion and the Arbitrator was entitled to reject it. This conclusion was open and is not undermined by the erroneous statements I have reproduced at [47] and [48] above.
I do not accept the submission that Dr Deveridge “complied with the requirements for expert evidence as set out in Hancock” and the Arbitrator erred in giving little or no weight to his opinion. This submission is tantamount to saying that an expert’s evidence must be accepted regardless of how unsatisfactory the history or how inadequate the explanation for the conclusion. That is not the law.
While Dr Deveridge set out Ms Krstevska’s work history, which included a history that her duties were easier from 2003, he took conflicting histories of when the left shoulder symptoms started: at one part of his 2011 report he said that Ms Krstevska did not know when they started, in another part of that report he said they had developed by the time she stopped work in December 2006, and in another part he suggested they started in 1999.
Though Dr Deveridge also took a history of a gradual deterioration since 2006, he took no history that the easier duties caused any left shoulder symptoms and failed to explain what it was about the easier duties that caused the pathology in the left shoulder. To the extent that he suggested that Ms Krstevska had physiotherapy for left shoulder symptoms between 1999 and 2002, that is inconsistent with evidence from Ms Barker (see [83] below) and is incorrect. Other than to say that her left shoulder symptoms started in 2005, which was inconsistent with the general practitioner’s notes in 2010, Ms Krstevska’s evidence also failed to address these critical issues in any meaningful way.
It is accepted that strict compliance with every feature of Makita is not required. However, when an expert’s reports are wanting in several critical respects, and the evidence overall is seriously deficient, the Commission must weigh the evidence to determine if the worker has discharged the onus of proof. Given the deficiencies in the evidence from Ms Krstevska and Dr Deveridge, there was no persuasive evidence that Ms Krstevska’s duties caused an injury to her left shoulder and the Arbitrator’s conclusion was correct.

OBJECTIVE EVIDENCE OF SYMPTOMS IN 2005

Submissions

Ms Mortimer-Fox submitted that the only medical evidence on causation with respect to the left shoulder was from Dr Deveridge, and he attributed the injury to the nature and conditions of Ms Krstevska’s employment and “biomechanical overloading of the left shoulder, as a consequence of the right shoulder problem and favouring that arm”. He added that the “the rotator cuff tear would, in my opinion, and on the balance of probabilities, have occurred during her employment”.
Ms Mortimer-Fox added that Dr Deveridge had a full history of the gradual onset of the symptoms in the left shoulder and of the worsening of the condition since 2005 and provided his opinion accordingly.
The respondent’s solicitor submitted that it was open to the Arbitrator to reject Dr Deveridge’s evidence in circumstances where his opinion was discounted because of the factual circumstances of the case.

Discussion

These submissions are essentially a repeat of the submissions dealt with under the first ground. For the reasons given above, notwithstanding the Arbitrator’s incorrect understanding of Makita, her conclusion was correct.

LACK OF EVIDENCE OF AN ACUTE INJURY IN 2010

Submissions

Ms Mortimer-Fox submitted that, in the absence of medical opinion, it was not open to the Arbitrator to find that the tear in the left shoulder occurred as an acute injury in 2010.

Discussion

The Arbitrator said, at T30.28:
“If you look at the GP’s notes there is just the request in 2010 which comes right out of the blue for examinations of the left shoulder and then there is a further entry which seems to indicate - there’s no treatment suggested and then there’s one further entry which seems to indicate that the injury is quite acute:
Constant pain. Cannot sleep on left side.
It also says:
Letter to insurer - get medical opinion.
Now, this is in 2012. This is in June 2012. I also note that that - that note - that particular entry says:
The shoulder has been troublesome since 2007.” (emphasis added)
This is the only reference in the decision to the left shoulder condition being acute. The Arbitrator did not make the finding attributed to her by Ms Mortimer-Fox. The Arbitrator merely said that the general practitioner’s notes seemed to indicate that the injury was quite acute. She did not make a formal finding to that effect and did not refer to it again. It was clearly a passing observation in the context of Ms Krstevska’s presentation to her general practitioner in 2010.
Given the other evidentiary difficulties in the case, the comment had no bearing on the outcome and was of no consequence. The Arbitrator’s ultimate conclusion was that Ms Krstevska did not have the required level of proof and that the facts were not there for her to succeed. That conclusion is not undermined by the passing observation about the general practitioner’s notes seeming to indicate that the condition was acute in 2010.

LACK OF CONTEMPORANEOUS MEDICAL EVIDENCE

Submissions

Ms Mortimer-Fox submitted that the lack of any mention of the left shoulder in the medicolegal reports from 2005/6 or in Ms Krstevska’s 2006 statement was not surprising because those documents were prepared for the right shoulder and neck claim.
Dr Ho noted pain and restricted movement in both shoulders (especially the right shoulder) when he examined Ms Krstevska in January 2005. This was consistent with Ms Krstevska’s claim that she first developed symptoms in her left shoulder in about 2005.
The Arbitrator relied on Dr Farlow’s report of 25 November 2005 and said that this doctor’s examination of the left shoulder was more thorough. However, there was no mention of Dr Farlow measuring the active flexion and abduction of the left shoulder, as Dr Ho had done. Dr Farlow found a full range of movement of both arms, but there is no dispute that Ms Krstevska has a permanent impairment of her right shoulder, which pre-dated the report by at least two years and for which she received lump sum compensation.
There is no doubt that the right shoulder was the worker’s main concern at the time and, over the years, the left shoulder has deteriorated to the point where it is now causing the worker real concern.
The Arbitrator was swayed by Ms Krstevska’s lack of visits to her general practitioner with respect to the left shoulder complaints prior to 2010. On review of the general practitioner’s notes, it is apparent the worker rarely complained to her general practitioner about the accepted right shoulder and neck injuries. Since ceasing work in December 2006, there are over 40 entries in the clinical notes and it appears only one of these relates to the accepted right shoulder and neck injury. The first entry for the left shoulder is November 2010, when Ms Krstevska was referred for investigation, and the next was on 6 June 2012.
Ms Mortimer-Fox submitted that the Arbitrator placed too much emphasis on the lack of reporting of symptoms in the left shoulder when Ms Krstevska is apparently not someone who complains regularly to her doctor about pain in the right shoulder or neck either. Ms Krstevska gave evidence that she was not receiving any treatment, that she went for physiotherapy, which did not help her, and she just took Panadol to manage her symptoms.

Discussion

The Arbitrator said (at T27.20) that there was “absolutely no contemporaneous evidence of any complaint of injury to [Ms Krstevska’s] left arm during this period” (the period referred to was 2003 to 2007). That was correct and was a matter the Arbitrator was entitled to take into account in her assessment of the claim.
While it is correct that the documents prepared in 2005/6 were prepared in support of the claim for the right shoulder and neck, the issue was whether, because of her duties up to December 2006, Ms Krstevska injured her left shoulder. The absence of a complaint of any left shoulder symptoms at that time was relevant to the overall assessment of the claim but not determinative.
Dr Ho’s evidence of his findings on examination does not advance Ms Krstevska’s position. Ms Krstevska made no complaint to him that she had injured her left arm or shoulder in the course of her employment with the respondent, or that her left shoulder pain resulted from an inability to use her right shoulder. His finding was therefore incidental and of limited relevance.
Contrary to Ms Mortimer-Fox’s submission, the Arbitrator did not say that she found Dr Farlow’s examination of the left shoulder was more thorough. She said that Dr Farlow looked at both shoulders “in some detail” (T27.49) and that Ms Krstevska had been “thoroughly examined before leaving work in 2006” (T29.25). The Arbitrator’s analysis of the evidence from Dr Ho and Dr Farlow suggests that she did not find their evidence decisive to her determination. Her approach discloses no error.
I accept that Ms Krstevska’s general practitioner had few entries about her right shoulder. However, the Arbitrator was not only influenced by the lack of complaint to the general practitioner. Other factors, such as the change in the nature of the duties from 2003, the lack of evidence in Ms Krstevska’s statements that her work had caused trouble for her left shoulder, and the lack of explanation by Dr Deveridge about his conclusion, were particularly significant. These matters were not overcome by saying that Ms Krstevska was not someone who complained regularly.

While Ms Krstevska said that she had physiotherapy on her left shoulder in 2005, that assertion is contrary to the letter from Nikki Misios, office administrator with Unanderra Physiotherapy and Pilates, dated 18 August 2011, which said that Ms Krstevska’s last attendance at that practice was on 28 April 2003. Though Ms Misios added that the practice did not keep records longer than seven years, and documents prior to 2003 had been destroyed, that did not explain the absence of evidence of attendances in 2005.
Dr Deveridge’s assertion that Ms Krstevska had physiotherapy on both shoulders between 1999 and 2002 is contrary to the evidence from Sue Barker, physiotherapist with Unanderra Physiotherapy Centre, in her report of 25 February 2000, which referred to Ms Krstevska having had treatment in August 1999 for lateral epicondylitis. While corroboration is not essential in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]), in a case such as the present, the lack of corroboration in the form of contemporaneous evidence was a factor the Arbitrator was entitled to consider.
The lack of contemporaneous complaint that Ms Krstevska’s duties with the respondent caused the symptoms in her left shoulder made a connection between those duties and the symptoms less likely. That conclusion was reinforced in circumstances where, notwithstanding that she was seeing doctors and solicitors between 2004 and 2007 for a workers compensation claim for her right shoulder, she made no complaint of left shoulder symptoms having been caused by her work until 2011. In making this statement I have not overlooked Dr Ho’s evidence. However, as I have already noted, his evidence was of an incidental finding rather than of a complaint that the work had caused the left shoulder symptoms.

CREDIT

Submissions

Ms Mortimer-Fox submitted that the Arbitrator appears to have given no weight at all to Ms Krstevska’s evidence in her statement of 20 April 2012, but there was no issue raised about her credibility as a witness.

Discussion

The issue was a lack of probative evidence, not a lack of credit. The case turned on the lack of evidence about whether Ms Krstevska received an injury to her left shoulder arising out of or in the course of her employment with the respondent. In considering that issue, the Arbitrator had regard to the lack of probative evidence in Ms Krstevska’s statements and, in particular, as noted above, observed there was “simply nothing in the second statement”. That observation was correct and was one of the main reasons Ms Krstevska failed.
A bald assertion that a worker believes he or she has received an injury, which is essentially all Ms Krstevska said in her second statement, assuming that that statement intended to refer to the left shoulder and not the right shoulder, is of limited assistance. That is especially so where the injury is alleged to have been received due to repetitive activities over time and the contemporaneous evidence is that the duties concerned were “much easier” from 2003 than they had been before that time. At the least, evidence will usually be required about the activities that are said to have caused the injury, together with medical evidence linking the activities concerned with the pathology said to have resulted from those activities. The evidence from Ms Krstevska and Dr Deveridge fell well short of the evidence needed to establish that Ms Krstevska had received an injury.
The Arbitrator noted (at T31.15) that Ms Krstevska carried the onus of proof and essentially concluded that she had not discharged that onus. That finding was open and discloses no error.

THE CONSEQUENTIAL CONDITION

Submissions

Ms Mortimer-Fox submitted that the claim was that:
(a) the repetitive processing work caused injury to all body parts pleaded, and
(b) due to the accepted injury to the right arm and neck, Ms Krstevska overused her left arm causing injury to the left shoulder.
The Arbitrator only had to be satisfied that the injury to the left arm was a consequence of overusing the arm following the accepted injury to the neck and right arm. Ms Krstevska’s evidence was that her condition had deteriorated over the years since ceasing work in December 2006. Dr Deveridge noted that deterioration and that Ms Krstevska became more reliant on her non-dominant left arm for work and everyday activities (the full passage from Dr Deveridge is reproduced at [33] above).
Ms Mortimer-Fox submitted that the cumulative effect of earlier repetitive duties and the subsequent overuse of the left arm following injury to the right arm have led to the current condition in the left shoulder.

Discussion

The Arbitrator referred (at T29.14) to Dr Deveridge’s evidence about there being some biomechanical overloading of the left shoulder as a consequence of the right shoulder problem. She added that Dr Deveridge also said that the rotator cuff tear would have occurred during Ms Krstevska’s employment and that it was “difficult to think” (T29.21) what the doctor was saying. She did not accept that the left shoulder condition had been caused by work with the respondent.
With regard to the consequential loss claim, the Arbitrator said (at T29.50) it was difficult to find any evidence of biomechanical overloading in the period up to when Ms Krstevska left work in 2006, and she could find no evidence of it after that time. If biomechanical overloading occurred, the Arbitrator expected there would be a history of complaint, such as a complaint of an inability to move one arm and the other arm hurting as a consequence (from overuse), but there was “no such history” (T30.26). She said that it was difficult to reach the conclusion Dr Deveridge reached “that the injury to the left arm must have been caused by either the work duties or an overloading since the work” (T31.12) (emphasis added).
The statement in the last sentence of the preceding paragraph was not accurate. Dr Deveridge said in his report of 26 July 2011 that the left shoulder condition had been caused by “the nature and conditions of [Ms Krstevska’s] employment” (emphasis added). In his report of 29 September 2011, he said that the only explanation for the tear in Ms Krstevska’s left shoulder was that “it resulted from her previous work tasks” (emphasis added) and occurred “during her employment”. While he referred to biomechanical overloading of the left shoulder, he did not say that the left shoulder condition resulted from overuse of the left arm as a result of the injury to the right shoulder. He said it was caused by the work duties.
It therefore follows that, though the Arbitrator’s reasons were not as clear as they might have been, she correctly concluded (at T30.23) that there was no evidence that the left shoulder condition resulted from the accepted injury to the right shoulder. This conclusion is fortified by the lack of evidence from Ms Krstevska about the use to which she put her left arm and shoulder because of her right shoulder symptoms.
While the general practitioner’s notes referred to the possibility that Ms Krstevska’s left shoulder symptoms had resulted from using that shoulder in compensation for the injury to the right shoulder (see [35] above), in the absence of any statement from Ms Krstevska detailing the effect the right shoulder injury had on her, and in the absence of a report from the general practitioner expressing an opinion, that note falls well short of the evidence required to establish a consequential loss claim.

OTHER MATTERS

One other matter requires comment, though it has not affected the outcome. The respondent has succeeded on appeal in spite of, not because of, the submissions filed by its solicitor. The respondent’s submissions on appeal were, in many instances, incomprehensible and, in general, unhelpful. For example, at [7] under Ground 3 the following appeared:
“The absence of reporting a work injury during the course of her employment the respondent worker and the arbitrator are required to establish a work injury based upon fact.”
The practice of briefing counsel at arbitrations is extremely helpful to the Commission because it facilitates the resolution of claims and, if claims cannot be resolved, usually ensures that arguments are presented efficiently and competently. However, the now common practice of briefing counsel at the arbitration and having an inexperienced solicitor, who usually did not participate in the arbitration, prepare the submissions on appeal is counterproductive and unhelpful. It does not promote the efficient disposition of appeals and does not advance the interests of the parties concerned.

CONCLUSION

Ms Krstevska has not established that the Arbitrator has made any relevant error in her approach or conclusion. While the Arbitrator’s comments about Makita were incorrect, having regard to the evidence overall, that error has not affected the outcome. Ms Krstevska’s evidence failed to address the basic issues in dispute and, as a result, she failed to establish her case.

DECISION

The Arbitrator’s determination of 24 August 2012 is confirmed.

COSTS

No order as to costs.

Bill Roche

Acting President
21 November 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE