Kumar v Royal Comfort Bedding Pty Ltd - [2012] NSWWCCPD 8

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8
APPELLANT:		Kishor Kumar
RESPONDENT:		Royal Comfort Bedding Pty Ltd
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6849/11
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:		24 November 2011
DATE OF APPEAL DECISION:		23 February 2012
SUBJECT MATTER OF DECISION:		Consequential condition; causation; whether shoulder condition resulted from mobilising while recuperating from back surgery for accepted back injury; principles to apply; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; assessment of medical evidence; claim for cost of proposed shoulder surgery
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Frisina Lawyers
Respondent:	Ellison Tillyard Callinan
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 24 November 2011 is revoked and the following orders made in its place: “1. That the symptoms in the applicant’s right shoulder have resulted from the injury to his back on 19 March 2009. 2. The applicant’s claim for hospital and medical expenses relating to the surgery proposed by Dr Ireland is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whether that surgery is reasonably necessary treatment as a result of the back injury on 19 March 2009. The AMS is to be provided with a copy of this decision. 3. Costs are reserved, pending the final outcome of the claim.” 2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns a claim for compensation for a consequential condition said to have resulted from an accepted injury. The accepted injury is a back injury and the consequential condition is alleged to be the condition of the worker’s right shoulder. The claim is for the cost of surgery for the shoulder condition.

BACKGROUND

The appellant worker, Kishor Kumar, injured his back on 19 March 2009 while bending over to place packing under a machine at work for the respondent, Royal Comfort Bedding Pty Ltd. He stopped work and the insurer accepted liability for that injury and paid compensation. On 11 May 2010, Mr Kumar underwent back surgery at the hands of Dr Bentivoglio. The insurer accepted that this surgery was reasonably necessary as a result of the back injury on 19 March 2009.
Mr Kumar gave unchallenged evidence that “[f]ollowing the [back] surgery I was finding that when I was in bed trying to lift myself using my arms I felt a lot of pain in my right shoulder”. He first complained of right shoulder pain to Dr Di Mascio, his general practitioner, on 21 June 2010. Dr Di Mascio took no history on that attendance of the cause of the shoulder pain. He noted abduction to be only 100 degrees with decreased internal and external rotation. An ultrasound of the right shoulder on 28 June 2010 revealed features consistent with supraspinatus tendinits.
Dr Di Mascio saw Mr Kumar on 30 June 2010. The notes on this occasion mainly deal with the worker’s back condition, but also record “ongoing (Rt) shoulder pain → deltoid” and “only after surgery”. On 8 July 2010, Dr Di Mascio recorded, among other things, that Mr Kumar still had “grumbling (Rt) shoulder pain” and added “is this w/cover related?”.
Dr Di Mascio referred Mr Kumar to Dr Ireland, orthopaedic surgeon. Dr Ireland saw Mr Kumar on 26 November 2010 and reported to Dr Di Mascio on that day. Dr Ireland said that Mr Kumar had a longstanding back and right shoulder injury from work. He took a history that Mr Kumar had been lifting a heavy roll at work on 9 March 2009 when he experienced sharp pain in his back and into his shoulder. That history was inaccurate. It is accepted that Mr Kumar did not injure his shoulder on 19 March 2009 and that he first reported his shoulder symptoms on 21 June 2010.
Dr Ireland arranged for an MRI scan, which revealed evidence of subacromial bursitis with a subacromial spur over the lateral margin. He recommended surgery. In a report dated 24 May 2011, Dr Ireland repeated the incorrect history that Mr Kumar had injured his right shoulder at work on 19 March 2009 while lifting a heavy roll to push under a machine. He also referred to Mr Kumar’s back surgery in May 2010 and that Mr Kumar “noticed that the shoulder had deteriorated as he was pulling himself around in bed to help with mobilisation”. Mr Kumar complained of significant pain in the shoulder, which woke him at night, and complained of typical impingement symptoms with overhead and stretching movements. The doctor felt that surgery was “appropriate”, considering the diagnosis and lack of response to conservative treatment.
By letter dated 16 February 2011, Mr Kumar’s solicitors claimed the cost of the surgery recommended by Dr Ireland. The insurer referred Mr Kumar to Dr Wallace, orthopaedic surgeon, for examination.
Dr Di Mascio reported to the insurer on 26 March 2011 as follows:
“Subsequent to his lower back surgery, Mr Kumar complained of increasing cervical and right shoulder pain. This became particularly symptomatic whilst he was trying to mobilise and support himself following his back surgery.”
Dr Di Mascio added that it was reasonable, on historical and clinical grounds, that Mr Kumar injured his right shoulder while working at Royal Comfort Bedding and “aggravated his pain complex during his recuperative phase following his lower back surgery”. He said that Mr Kumar’s “symptom complex” was “heightened” while “mobilising and transferring” during his recuperative period following the back surgery. The MRI scan showed minor infraspinatus tendinopathy with an undisplaced tear of the posterior glenoid labrum inferiorly. He did not think the shoulder injury was age related. He believed Mr Kumar’s work duties on 19 March 2009 were responsible for his “right shoulder pain complex, with an aggravation whilst recuperating from lower back surgery”.
Dr Wallace reported on 17 May 2011. He correctly recorded that Mr Kumar only injured his back on 19 March 2009. He added that, after the back surgery in May 2009, Mr Kumar “noted the onset of pain in his neck, upper thoracic spine and bilateral shoulders”. He noted the results of the ultrasound of 28 June 2010 and of the MRI scan dated 15 December 2010. He recorded that Mr Kumar had not had any previous history of injury to his right shoulder, and that he complained of persisting pain and stiffness in both shoulders.
After noting Dr Di Mascio’s statement that Mr Kumar’s right shoulder became symptomatic after he was trying to “mobilise and support himself” following his back surgery, Dr Wallace said that “there was no history of specific injury at his right shoulder” and that Mr Kumar’s “activities post operation in mobilisation would not be consistent with the cause of significant right shoulder pathology”. He added that the MRI scan showed no evidence of significant structural abnormality at the joint and that Mr Kumar’s “right shoulder condition is not related to his work incident in March 2009 or his employment” with the respondent. He felt that Mr Kumar’s bilateral shoulder pain was due to age related degenerative rotator cuff lesions, which were constitutional in origin “but certainly not work-related”.
Based on Dr Wallace’s report, the insurer disputed liability in a s 74 notice dated 20 June 2011 on the grounds that Mr Kumar had not suffered an injury to his right shoulder arising out of or in the course of his employment; that employment was not a substantial contributing factor to his shoulder condition, and that the respondent was not liable for any treatment he required for the right shoulder.
In proceedings lodged with the Commission on 9 August 2011, Mr Kumar claimed $3,300 for the cost of the proposed shoulder surgery. After amendment, he alleged that he had injured his low back and right shoulder while lifting a cool packing roll on 19 March 2009. The injury to the right shoulder was more specifically pleaded as a “secondary injury” following surgery to Mr Kumar’s lumbar spine “when trying to lift himself using his arms”. The respondent essentially disputed liability as per the s 74 notice.
The Commission listed the matter for conciliation and arbitration on 18 November 2011 when the Arbitrator heard submissions from both sides, but no oral evidence. In a reserved decision delivered on 24 November 2011, the Arbitrator identified the issues to be whether Mr Kumar had suffered an injury to his right shoulder under s 4 of the Workers Compensation Act 1987 (the 1987 Act), whether employment was a substantial contributing factor to that injury, and whether the proposed surgery was reasonably necessary.
The Arbitrator felt that he could give little weight to the opinions from Dr Di Mascio and Dr Ireland because, while they noted a worsening of Mr Kumar’s right shoulder condition after the back surgery, they did so on a background of an (incorrect) acceptance of an injury to the right shoulder on 19 March 2009. He said that there was no reference in the evidence prior to March 2011 as to the cause of Mr Kumar’s right shoulder symptoms, so it was unclear how and when Dr Di Mascio obtained the history from Mr Kumar of increasing cervical and right shoulder pain when trying to mobilise and support himself, as recorded in the report of 26 March 2011. He would have expected Dr Di Mascio would have correctly recorded the onset of right shoulder symptoms, if any. While it was possible that Mr Kumar may have experienced shoulder symptoms when undertaking various tasks after the operation, that did not necessarily mean that he sustained an injury within the meaning of the 1987 Act.
The Arbitrator felt that Dr Wallace’s history was “more in keeping” with Mr Kumar’s statement. Given the similar pathology Mr Kumar has in his left shoulder, the Arbitrator felt there may be some substance to Dr Wallace’s opinion that Mr Kumar’s right shoulder condition is due to age related degenerative rotator cuff tendinosis that was constitutional in nature. He preferred the evidence of Dr Wallace to that of Dr Di Mascio and Dr Ireland and made an award in favour of the respondent.
Mr Kumar has appealed the Arbitrator’s determination.

PRELIMINARY MATTERS

The original claim was for $3,300. As that amount does not meet the threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Mr Kumar has sought leave to tender additional evidence on appeal to establish that the total cost of the proposed surgery is over $5,000. He has conceded that this evidence was available prior to the hearing, but has submitted that there will be a substantial injustice if the evidence is not admitted because, without it, the appeal cannot proceed and he will have no way of challenging the Arbitrator’s decision. The respondent consents to the introduction of the additional evidence.
I am satisfied that, in the exceptional circumstances of this case, the refusal to allow the additional evidence to be tendered will result in a substantial injustice to Mr Kumar because he will have no avenue of appeal in circumstances where he has a strongly arguable case that the Arbitrator erred in his approach and conclusion. The additional evidence is admitted to avoid a substantial injustice in the case. Once that evidence is admitted, the thresholds in s 352(3) are satisfied.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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) considering he had to decide whether Mr Kumar suffered an injury to his right shoulder within the meaning of s 4 of the 1987 Act;
(b)     considering that he had to find an injurious event that caused pathology;
(c)     failing to properly consider the opinions of Dr Di Mascio and Dr Ireland that there was an aggravation when Mr Kumar was recovering from the back surgery;
(d)     saying that there was no reference in the clinical notes of Dr Di Mascio as to the cause of Mr Kumar’s right shoulder symptoms;
(e)     failing to consider that the onset of symptoms in May 2010 could constitute a consequential loss, and
(f)      determining the matter on the basis of the opinion of Dr Wallace when Dr Wallace did not express an opinion relevant to the proper question in dispute.

SUBMISSIONS

Mr Kumar’s submissions

Mr Kumar’s case was that his right shoulder condition resulted from the accepted back injury. The question was whether the symptoms and restrictions (in the right shoulder) resulted from the back injury. The Arbitrator erred in approaching the matter based on whether there had been an injury within the meaning of s 4 of the 1987 Act. The question did not require a consideration of s 4 or s 9A of the 1987 Act.
If the Arbitrator had considered the correct question, he would have asked whether the onset of Mr Kumar’s right shoulder symptoms was explainable by the actions of pulling himself around in bed, as he claimed. Those symptoms are the consequential loss of which Mr Kumar complains. When dealing with a consequential loss, it is not necessary to show that there was an injurious event or that there has been any pathology caused.
As the Arbitrator failed to ask the right question, he misdirected himself when considering the medical evidence. He wrongly considered that he had to identify the causes of the underlying pathology in the right shoulder, which Dr Wallace described as age related degenerative rotator cuff tendinosis.
The question before the Arbitrator was whether Mr Kumar’s actions in pulling himself around the bed following the back surgery contributed to the onset of the right shoulder symptoms at that time. In other words, whether the actions in pulling himself around the bed aggravated whatever pre-existing condition existed in the shoulder. In considering that question, it was irrelevant whether the underlying condition in the shoulder was contributed to by the injury on 19 March 2009, or was a degenerative condition.
The Arbitrator did not explain why the (incorrect) views expressed by Dr Di Mascio and Dr Ireland about injury of the right shoulder on 19 March 2009 were relevant to their opinion about the worsening of Mr Kumar’s shoulder after the back surgery. This situation is the same as in Vivaldo v Uniting Church in Australia t/as Lucan Care [2010] NSWWCCPD 41 (Vivaldo).
The Arbitrator erred when considering Dr Di Mascio’s notes. The notes reveal that Dr Di Mascio had recorded the onset of right shoulder symptoms in June 2010 and had taken a history relating those symptoms to the back surgery. The notes show that Dr Di Mascio was properly informed of the shoulder condition as it occurred and was well placed to form an opinion about the matters that were contributing to the onset of symptoms at that time.

The respondent’s submissions

The Arbitrator was correct to “start from” s 4 of the 1987 Act because Dr Di Mascio and Dr Ireland supported the proposition that the right shoulder was injured in the incident on 19 March 2009 and it was necessary to determine that issue. Dealing with the medical evidence, the Arbitrator merely noted the inconsistencies in Mr Kumar’s medical evidence compared to Mr Kumar’s own evidence. The Arbitrator was satisfied that Mr Kumar did not injure his right shoulder on 19 March 2009.
It is accepted that the claim is a claim for consequential loss, namely, a loss Mr Kumar alleges resulted from his compensable back injury. Dr Ireland expressed no view on whether the symptoms and restrictions in Mr Kumar’s right shoulder resulted from the effects of the 2009 injury, either on a transitory or ongoing basis. He understood that the right shoulder had been injured in March 2009 and proceeded on the premise that the problem was therefore compensable. In the absence of a clear expression of opinion (by Dr Ireland) it would be an error to infer that he supported the consequential loss claim on the basis now asserted.
Dr Di Mascio also (wrongly) stated that Mr Kumar had injured his right shoulder in March 2009. That error was sufficient to detract from the weight to be attached to his opinion. The reference to mobilising and transferring during the recuperative phase after the back surgery begs the question as to whether such activity was necessary by virtue of the back surgery. Injured and uninjured people mobilise and transfer. There is very little detail of the precise activity or activities involved or any clear statement such activity was necessitated by virtue of the back surgery. These matters should have been plainly stated and not left to inference.
Vivaldo can be distinguished because in that case the evidence was clear that the worker’s shoulder problems were consequential upon her compensable knee injuries due to prolonged use of a walking stick as well as “levering” herself out of chairs.
It is conceded that it would have been preferable for the Arbitrator to have used the expression “consequential loss” rather than “injury” in his decision. However, this does not affect the integrity of the decision. As Mr Kumar failed to adduce any medical evidence that supports a consequential loss claim on the basis of the post back surgery activity alone, failed to clarify the post back surgery activity with precision, and failed to relate those activities to the consequences of the back surgery, the Arbitrator was entitled to conclude that Mr Kumar had failed to discharge his onus of proving that the onset of symptoms in or about May 2010 constituted a consequential loss.
Finally, they argued that Dr Wallace rejected in totality the claim for “consequential loss” in respect of the right shoulder.

DISCUSSION AND FINDINGS

By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.
The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner)) and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). Those principles apply in this case. To understand the correct approach in cases of this kind, it is helpful to consider the facts and chronology in Kooragang, which have previously been set out in Davis and Turner.
The worker in Kooragang was a truck driver. He injured his back on 30 July 1981 while climbing up and down from his truck. He stopped work in June 1983. In September 1985, his general practitioner, Dr Furey, reported that the worker was:
“very distressed because of the delay in reaching a solution to his back difficulty. He felt that, if he did anything, people might be watching him. He was very upset. He was complaining of a knot in the stomach. He was depressed and he was placed on a tranquilliser.” (at 453–4)

In May 1986, Dr Furey described the worker as “very severely depressed”. His personality was being affected by the “chronicity of his condition”. In July 1987, Dr Furey advised the worker to go on a diet as his weight had increased because of his inactivity. In April 1988, the worker told Dr Furey that he had a lot of suicidal thoughts. Dr Furey felt that the length of time in the compensation system was the “root cause of all this”. In March 1989, the worker’s back continued to give him excessive pain, radiating down his leg.
In March 1991, the worker was again found to be “excessively depressed, anxious, still having problems at home and problems with his back”. He had a sudden, unexplained exacerbation of pain in November 1991. A CT scan on 6 November 1991 revealed degenerative disc disease, with a prolapse at L4/5 and significant degeneration at L5/S1. There had been a gross deterioration since the scan taken in April 1982.
On 16 March 1992, the worker received a letter from the insurer advising that compensation payments would cease from 29 March 1992. The worker saw Dr Furey on 19 May 1992 severely depressed. He said he did not have enough money to pay the doctor and that he would have to sell his house. He was worried and anxious about his future. On 8 June 1992, the worker died of a heart attack.
Dr Furey stated that, while the worker had antecedent myocardial disease, it was exacerbated by the “depressive and anxiety situation in which he found himself, as a result of the lengthy and protracted workers’ compensation situation”. He felt that the worker’s death had been accelerated by the “stress generated by the cessation of compensation payments and the peculiarities of the workers’ compensation system”. The heart attack had happened much earlier than the worker should have had it and was “totally related to his back injury and the failure to reach a satisfactory conclusion within a ten year period”.
The worker’s widow claimed compensation benefits, which the insurer denied. She relied on evidence from Dr Furey and Dr Schiller, physician, who concluded that the emotional stress and depression the worker experienced in the weeks leading up to his death, which resulted from the cessation of compensation payments and consequent financial crisis in which he found himself, contributed to his death from a heart attack. Dr Schiller added that the worker’s sedentary lifestyle due to his back injury and unemployment also contributed to the heart attack. The employer called no evidence.
The test of causation in a claim for death benefits under the 1987 Act is the same as in a claim for weekly compensation: if the death “results from an injury”, compensation is payable (s 25 of the 1987 Act).
The trial judge found that the deceased “suffered injury in the course of his employment on 30 July 1981; namely, injury to his lower back” (emphasis added) and that “[a]s a result thereof the deceased suffered myocardial infarction from the effects of which, on 8 June 1992, he died” (at 457E). The judge did not find that the worker suffered a psychological injury or that the heart attack was a personal injury.
The employer appealed. It argued that the prolonged incapacity, immobility, sedentary lifestyle, increased obesity, stress and anxiety, depression, and acute stress when compensation payments ceased were all “mere predisposing factors” that were not “causative in the relevant sense that it was not shown that the death ‘resulted from’ any of them, either individually or in conjunction” (at 460F).
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.”
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence”. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.
Applying the above principles in the present case, the question for the Arbitrator was whether, as a result of his accepted back injury, Mr Kumar developed symptoms in his right shoulder for which it is reasonably necessary that he have the surgery recommended by Dr Ireland. While the Arbitrator referred to Kooragang, and applied the commonsense test of causation, he did so by asking what did commonsense say about “this issue of injury”. There was no issue that Mr Kumar injured his back on 19 March 2009. Nor was there any issue that he had not injured his right shoulder on that day.
The Arbitrator placed little weight on the evidence of Dr Di Mascio and Dr Ireland because, while they noted a worsening of the right shoulder condition after the back surgery, they did so on a background of an acceptance of an injury to the right shoulder on 19 March 2009. The wrong history recorded by Dr Di Mascio and Dr Ireland was not a valid ground for discounting their evidence. Their incorrect view about the right shoulder symptoms starting with the incident on 19 March 2009 was, in the circumstances of this case and the context of their reports overall, irrelevant to the issue in dispute.
The correct history, which Dr Di Mascio and Dr Ireland also recorded, namely, that the right shoulder symptoms started after the back surgery because Mr Kumar was trying to mobilise and support himself following the back surgery, was consistent with the conclusion that Mr Kumar suffered an aggravation of his shoulder condition as a result of the back surgery. Apart from age related degenerative changes, which were asymptomatic until after the back surgery, there is no other potential cause of the right shoulder condition. When one examines Dr Di Mascio’s clinical notes and considers the chronology of events after the back surgery, there is an unbroken chain of undisputed evidence that links the right shoulder symptoms to the back injury and surgery.
Dr Di Mascio’s opinion in his report of 26 March 2011 that Mr Kumar aggravated his “pain complex” (including his right shoulder) when he was “mobilising and transferring” during the recuperative period following the back surgery was not dependent upon the accuracy of the history of right shoulder symptoms having started on 19 March 2009. His opinion, when viewed with all the evidence, clearly supports a finding that the right shoulder condition resulted from the back surgery.
Similarly, when his report is read with all the evidence, Dr Ireland’s incorrect history is of no consequence. He correctly recorded, consistent with Mr Kumar’s evidence, that the right shoulder deteriorated “as [Mr Kumar] was pulling himself around in bed to help with mobilisation”. I have no doubt that the “help with mobilisation” was required because of the back surgery, that it put extra strain on Mr Kumar’s right shoulder and that it caused his shoulder pain. That pain prompted Mr Kumar to see Dr Di Mascio. It was on the basis of Mr Kumar’s continuing right shoulder symptoms, together with the diagnosis, that Dr Ireland recommended shoulder surgery.
As the Court of Appeal explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, what is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report 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” ([85]). Both Dr Di Mascio and Dr Ireland complied with that requirement. An error in one part of a history does not necessarily destroy the probative value of an expert’s report. That is especially so if the balance of the report is consistent with the accepted evidence and supportive of the claim made. The error in the histories recorded by Dr Di Mascio and Dr Ireland must be read in the context of the whole of their reports and the whole of the evidence.
The Arbitrator preferred Dr Wallace’s opinion because he felt that Dr Wallace’s history was more in keeping with Mr Kumar’s statement. In the circumstances of this case, the history is not determinative. Of more significance is that Dr Wallace’s opinion that Mr Kumar’s activities after the back surgery would not be consistent with the cause of “significant right shoulder pathology” failed to address the correct issue. It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.
Dr Wallace consistently focused (as did the Arbitrator) on whether Mr Kumar had “suffered any work-related injury” to his right shoulder and whether employment was a substantial contributing factor to that injury, rather than the correct question of whether the right shoulder symptoms had resulted from the back injury. When he briefly considered Dr Di Mascio’s evidence that the right shoulder became symptomatic when he tried to mobilise himself after the back surgery, Dr Wallace dismissed that suggestion because such activities would not be consistent with the cause of “significant right shoulder pathology”.
Even assuming, as the respondent has urged, that Dr Wallace rejected the totality of the claim for “consequential loss” in respect of the right shoulder, his failure to address the correct issue, and his focus on whether Mr Kumar suffered a work related injury to his right shoulder, means that his report is fundamentally flawed. For these reasons, the Arbitrator should have rejected Dr Wallace’s conclusion.
It follows that I do not accept the respondent’s submissions and the appeal must succeed. Neither side has suggested that, if the appeal succeeded, the matter should be remitted to another Arbitrator for re-determination. The resolution of the claim is relatively clear-cut.
While Mr Kumar’s evidence is less than ideal and the general preparation of his case by his solicitors has been sloppy, his evidence of experiencing a lot of pain in his right shoulder having to lift himself after his back surgery is unchallenged and not implausible. His symptoms were sufficient for him to seek medical treatment. Dr Di Mascio and Dr Ireland were satisfied that an aggravation had occurred in the manner alleged by Mr Kumar. In these circumstances, and given that Dr Wallace did not address the proper question, the compelling conclusion is that Mr Kumar’s right shoulder symptoms in June 2010 resulted from his accepted back injury.
That finding does not determine the case. As Mr Kumar is claiming the cost of future medical expenses, the matter must be referred by the Registrar for assessment under Pt 7 of Ch 7 of the 1998 Act (s 60(5) of the 1987 Act). The question to be referred is whether the surgery proposed by Dr Ireland is reasonably necessary treatment as a result of the back injury on 19 March 2009. The Approved Medical Specialist’s certificate will be evidence (but not conclusive evidence) on that issue (s 326(2) of the 1998 Act).

CONCLUSION

The Arbitrator erred in his approach and conclusion. It was not necessary to determine if Mr Kumar suffered an injury to his right shoulder under s 4 of the 1987 Act. Nor was it necessary to determine if Mr Kumar had suffered “significant right shoulder pathology”, as Dr Wallace suggested. It was only necessary to determine if the right shoulder condition resulted from the accepted back injury. That question was a straightforward causation issue. On an objective view of the whole of the evidence, the compelling conclusion is that Mr Kumar’s right shoulder condition resulted from stress placed on it due to mobilising and transferring during his recuperative period following his back surgery. It follows that the right shoulder condition has resulted from the back injury on 19 March 2009. The claim for the cost of the proposed surgery cannot be finalised until the matter is assessed by an Approved Medical Specialist and the matter will be remitted to the Registrar for that purpose.

DECISION

The Arbitrator’s determination of 24 November 2011 is revoked and the following orders made in its place:
“1.That the symptoms in the applicant’s right shoulder have resulted from the injury to his back on 19 March 2009.
2. The applicant’s claim for hospital and medical expenses relating to the surgery proposed by Dr Ireland is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whether that surgery is reasonably necessary treatment as a result of the back injury on 19 March 2009. The AMS is to be provided with a copy of this decision.
3. Costs are reserved, pending the final outcome of the claim.”

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
23 February 2012

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

ASSOCIATE