Last v Fonterra Australia Pty Ltd
[2015] TASSC 39
•28 August 2015
[2015] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Last v Fonterra Australia Pty Ltd [2015] TASSC 39
PARTIES: LAST, Dayle Manfred
v
FONTERRA AUSTRALIA PTY LTD
FILE NO: 237/2014
DECISION
APPEALED FROM: Fonterra Australia Pty Ltd v L [2014] TASWRCT 9
DELIVERED ON: 28 August 2015
DELIVERED AT: Hobart
HEARING DATE: 25 June 2015
JUDGMENT OF: Blow CJ
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Appeals, judicial review and stated cases – Question of law – Particular cases – Conflicting medical opinions – Criticisms of reasoning process – Adequacy of statement of reasons.
Workers Rehabilitation and Compensation Act1988 (Tas), ss 61(3), 63(1).
Aust Dig Workers Compensation [341]
REPRESENTATION:
Counsel:
Appellant: C McKenzie
Respondent: C N Dockray
Solicitors:
Appellant: McLean McKenzie & Topfer
Respondent: Chris Dockray
Judgment Number: [2015] TASSC 39
Number of paragraphs: 53
Serial No 39/2015
File No 237/2014
DAYLE MANFRED LAST v FONTERRA AUSTRALIA PTY LTD
REASONS FOR JUDGMENT BLOW CJ
28 August 2015
This case concerns a dispute about the termination of a worker's weekly payments of workers compensation.
The worker in question is the appellant, Dayle Last. On 7 March 2011, in the course of his employment by the respondent, Fonterra Australia Pty Ltd, as a milk tanker driver, he suffered an injury that affected his left shoulder and left arm. He tripped or stumbled, began to fall, placed his left arm on a low cement platform, and avoided falling to the ground. He suffered a tendon injury to the left shoulder, for which he underwent surgery in July 2011. He was subsequently diagnosed as suffering from a condition known as ulnar neuropathy. That condition affected his left elbow, forearm, hand and fingers. His shoulder recovered well after surgery, but he remained incapacitated as a result of the ulnar neuropathy alone.
The worker made a claim for compensation pursuant to s 32(1)(b) of the Workers Rehabilitation and Compensation Act 1988 ("the Act") on 11 March 2011, four days after his accident. He subsequently received weekly payments of compensation. On 6 December 2011 a medical practitioner, Dr Ross Ulman, signed a medical certificate for the purposes of s 86(1)(c) of the Act, certifying that the worker had wholly or substantially recovered from the effects of the left shoulder injury for which compensation was being paid. He did so on the basis that in his opinion the worker's ulnar neuropathy was not attributable to the work related injury of 7 March 2011. In reliance on that certificate and s 86 of the Act, the employer terminated the worker's weekly payments. The worker decided to dispute that termination, and referred the matter to the Workers Rehabilitation and Compensation Tribunal pursuant to s 86(4) of the Act. The tribunal, constituted by its Chief Commissioner, Mr S Carey, made a determination in favour of the employer, holding that the worker had wholly or substantially recovered from the shoulder injury and that the ulnar neuropathy was not caused by the incident that was the subject of his claim for compensation: Fonterra Australia Pty Ltd v L [2014] TASWRCT 9. This is an appeal by the worker from that determination.
There was conflicting medical evidence at the hearing before the tribunal. The worker relied on reports and oral evidence from three medical experts: Dr David Gorman (a consultant general physician and pain management specialist), Professor Bernard Einoder (an orthopaedic surgeon), and Associate Professor Brian Chambers (a neurologist). Each of them considered that the ulnar neuropathy was a consequence of the work related injury of 7 March 2011. The opposite view was taken by the orthopaedic surgeon who operated on the worker to repair the damaged tendon, Dr Peter Van Winden. The employer called him and Dr Ulman as expert witnesses. The learned Chief Commissioner accepted their evidence and rejected the opinions of Dr Gorman, Prof Einoder and Prof Chambers.
The worker of course gave evidence at the tribunal hearing. Evidence as to his stated symptoms and the timing thereof was also given by a number of other witnesses including his former partner, his son-in-law, and a supervisor to whom he reported after returning to work on light duties following his accident.
Under s 63(1) of the Act, a worker who is aggrieved by a determination of the tribunal may appeal to this Court, but only in relation to points of law. The worker contends that the learned Chief Commissioner reversed the onus of proof and made a number of other errors of law. The employer contends that the learned Chief Commissioner made no errors of law, and that most of the worker's grounds of appeal assert errors of fact, not errors of law.
Onus of proof (Ground 1)
When a worker's weekly payments are terminated in accordance with s 86(1) and the worker refers the matter to the tribunal under s 86(4), the employer bears the onus of proving facts justifying the termination: Ryan v McCain Foods (Aust) Pty Ltd (1995) 4 Tas R 101 at 109-110; McCain Foods (Aust) Pty Ltd v Williams [1997] TASSC 28, 25/1997 at 6; Absolom v Mary Ogilvy Homes Society [2000] TASSC 65 at [26]. The worker contends that the learned Chief Commissioner proceeded as if he bore the onus of satisfying the tribunal that the ulnar neuropathy resulted from the injury in respect of which weekly payments of compensation were being made.
In relation to this contention, counsel for the worker relied on comments made by the learned Chief Commissioner in his reasons at [22], where he said the following:
"22 The basis of the employer's case is an acceptance that the worker has an ongoing incapacity due to the ulnar neuropathy but that this was not caused by the work injury. The worker's case against that assertion is based upon a situation where he had not suffered any symptoms of ulnar nerve neuropathy prior to the work incident, however he did so at or in a short period after the incident and that these symptoms became significantly more apparent following the surgery for his shoulder injury. Professor Einoder describes this as feasible and he, along with the other medical experts who gave evidence on behalf of the worker, relied on history and/or propositions as to how this may have occurred. However, as determined by the Tribunal, the history they have relied upon is inaccurate as to the mechanism of injury and the Tribunal does not accept that there was a commencement of clear symptoms of ulnar neuropathy at or in a period shortly after the work incident. The worker made no complaint of such symptoms for some period after the incident and the proposition that these effects were masked or overshadowed by the pain from the shoulder injury was supposition, unsupported by any evidence. The Tribunal determines that the ulnar nerve neuropathy developed in a period some significant time after the worker [sic] incident. None of the possible causes examined in the evidence before the Tribunal relating to the development of this condition have been established to a level of probability so as to persuade the Tribunal as to the necessary causative link with the initial work injury. In this regard the Tribunal also notes the accepted evidence that this condition can, in a very high proportion of cases (up to 50%), be idiopathic in nature."
However that paragraph came at the end of a long passage in which the learned Chief Commissioner reviewed the evidence and made findings of fact. Immediately thereafter, he set out to apply the law to the facts. The next paragraph of his reasons commenced as follows:
"23 Of course, the onus is upon the employer to establish the matters asserted in Dr Ulman's s86(1)(c) certificate. In that regard the primary consideration is whether or not, as at the date of the certificate, the worker had in fact wholly or substantially recovered from the shoulder injury. In this regard I consider that the medical certificates of incapacity leading up to that date recite an incapacity due to a painful left arm and that this, based upon the nature of the treatment received by the worker, related to the injury to his left shoulder and the effects that that injury had upon his use of his left arm. I do not consider that the description of injury for which the worker was receiving weekly payments encompassed the condition of ulnar nerve neuropathy as this, on the evidence, was not identified by the certifying general practitioner until some time after the worker had surgery in relation to that shoulder injury. Based on the findings of fact set out herein the Tribunal is satisfied that there were two separate conditions suffered by the worker; one related to the left shoulder and its effect upon the use of the worker's left arm and the other the condition of ulnar nerve neuropathy which developed for reasons that the Tribunal is unable to determine."
After concluding that he was unable to determine the cause of the appellant's ulnar neuropathy, the learned Chief Commissioner went on to review the evidence and make a finding to the effect that the worker's ulnar neuropathy was not caused by the work incident that was the subject of his claim for compensation. In other words he concluded that, whilst the cause was unknown, the work incident played no part in its causation.
It is very clear from the opening words of [23] of the learned Chief Commissioner's reasons that he made no mistake as to the onus of proof. All that he decided at the end of [22] of his reasons was that he was not persuaded that any particular suggested cause was the true cause of the worker's ulnar neuropathy. He had been asked to make a number of findings favourable to the worker in relation to the causation issue, but did not make any of those findings. It does not follow that he lost sight of the fact that the onus of proof was on the employer. Ground 1 asserted that the learned Chief Commissioner erred in law by placing the onus of proof on the worker. That ground must fail.
Findings with no evidence to support them? (Grounds 2 and 8)
The learned Chief Commissioner was required to make a determination as to whether the case fell within the following words of s 86(1)(c) of the Act:
"… the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which payment is being made, or … the worker's incapacity is no longer due, wholly or substantially, to that injury."
If the finding of a particular fact is crucial to the ultimate finding that a case falls within the words of a statute, and there is no evidence to support the finding of that particular fact, then the making of that finding without evidence to support it amounts to an error of law: Nicolia v Commissioner of Railways (1970) 45 ALJR 465; Haines v Leves (1987) 8 NSWLR 442 at 476; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156; Tracey Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37; Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 at [25].
In his reasons, at [27], the learned Chief Commissioner said that he was satisfied that "as at the relevant date the worker had in fact wholly or substantially recovered from the shoulder injury, being the injury for which he was receiving weekly payments as a result of the work injury the subject of the claim for compensation made in that regard".
Ground 2 asserts that there was no evidence to support that finding, and that it was in conflict with a number of other findings said to have been made by the learned Chief Commissioner, as follows:
· It is asserted that the learned Chief Commissioner made a finding that the appellant "suffered no numbness or tingling in his left hand before the work incident". Those words are quoted from the learned Chief Commissioner's reasons at [7]. In that paragraph he summarised the appellant's evidence but made no findings. However it seems clear enough that he accepted that evidence as asserted.
· In his reasons at [18], he accepted that the appellant suffered from "numbness" and "a lack of mobility of the arm and hand". He went on to find that those symptoms were effects of the shoulder injury.
· In his reasons at [23], he referred to medical certificates, provided before Dr Ulman's s 86(1)(c) certificate, in which it was said that the worker had an incapacity due to a "painful left arm". Ground 2 asserts that he made a finding that the worker had a painful left arm. It is clear enough that he accepted that that assertion in those certificates was correct.
· In his reasons at [2], he made findings in relation to the operation performed in July 2011 that "there was apparently a good result from this surgery however the worker suffered a progression of symptoms affecting his left elbow/forearm/hand/fingers which continued subsequent to the surgery".
Ground 2 asserts that the learned Chief Commissioner made findings as to all those matters – not just some of them – and that, as a result, there was no evidence to support the finding that the worker had recovered from the effects of his shoulder injury. That ground is misconceived. The findings relied on, even assuming that all such findings were made, are entirely consistent with the expert opinion evidence of Dr Ulman and Dr Van Winden. Their evidence was sufficient to support the impugned finding. Ground 2 must therefore fail.
In his reasons at [14], the learned Chief Commissioner said:
"Dr Van Winden was adamant that the worker did not mention ulnar nerve type symptoms until the second post-operative visit on 7 September 2011."
Ground 8 asserts that he thereby erred in law by making a finding that was not open on the evidence.
At the tribunal hearing, Dr Van Winden was cross-examined about the possibility that the worker had told him of the symptoms in question at his first appointment. The cross-examination proceeded as follows:
"The 25th of May 2011, the first appointment, he told you about those symptoms. You haven't recorded that?.....No.
Do you positively dispute that he told you that?.....I cannot positively dispute, I can only say that it is extremely unlikely, since the report of an anatomic distribution, would alert me to further examination."
A little later in his cross-examination, the witness said:
"On the 7th of September, that's the first evidence that I have of a clear cut, ulnar neuropathy, which I have then suggested, needed surgery."
Obviously it is not possible, with only the transcript before me, to tell how emphatic the witness was in relation to this point. I certainly cannot rule out the possibility that the witness was rightly characterised as adamant in relation to the assertion that the symptoms in question were not mentioned before 7 September 2011. Ground 8 therefore has no merit. But it is not just unmeritorious. It is misconceived. At most, it asserts the making of a wrong finding of fact. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77, "… there is no error of law simply in making a wrong finding of fact". See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356. Unless a finding of fact is a crucial one, the absence of supporting evidence does not mean that there has been an error of law. The issue as to what was or was not said by the worker to a particular doctor prior to a particular date, whilst important, was not a crucial one.
Jones v Dunkel inferences (Ground 4)
Following his shoulder injury the worker was treated by his general practitioner, Dr Pava, and by a physiotherapist, Mr Carroll. They were not called as witnesses before the tribunal, but their records were tendered as exhibits. In his reasons at [14], the learned Chief Commissioner said:
"Dr Parva [sic] and the treating physiotherapist were not called to expand upon, or clarify, their notes, I conclude that their evidence would not have assisted."
Ground 4 asserts that the learned Chief Commissioner erred in drawing that inference. It reads as follows:
"The learned Chief Commissioner erred in law by drawing an inference adverse to the appellant in connection with the fact that Dr Pava and the treating physiotherapist were not called to give evidence when the inference should not have been drawn at all or should have been drawn adversely to the respondent when the records of Dr Pava and the treating physiotherapist were tendered and relied upon by the respondent and the onus was on the respondent."
The unexplained failure by a party to call a witness may (not must) in appropriate circumstances lead to an inference that the uncalled witness would not have assisted that party's case: Jones v Dunkel (1959) 101 CLR 298. That is a common law rule of evidence, but s 49(1)(a) of the Act provides that the tribunal is not bound by the rules of evidence.
The worker contends that the adverse inference drawn by the tribunal is one which, if the rules of evidence applied, would not have been permitted by the rule in Jones v Dunkel. If that is correct then, at worst, the learned Chief Commissioner made a wrong finding of fact or, from another point of view, it might be said that one step in his reasoning was illogical.
In R v District Court; ex parte White (1966) 116 CLR 644 at 654, Menzies J said:
"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law."
Mason CJ cited that passage with approval in Australian Broadcasting Tribunal v Bond (above) at 356, and continued:
"Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place".
In St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council (2007) 16 Tas R 169 at [54], I concluded that in order to determine whether illogical reasoning in fact-finding amounted to an error of law for the purpose of a statutory appeal from a particular specialist tribunal, it was necessary to consider the language and purpose of the section creating the right of appeal. In that case I was concerned with s 25(1) of the Resource Management and Planning Appeal Tribunal Act 1993, which conferred a right of appeal to this Court from a tribunal "on a question of law". The critical provision in this case is s 63(1) of the Act, which confers a right of appeal to this Court on a party who "is aggrieved by any determination, order, ruling, or direction of the Tribunal in point of law". There is no reason to take a different approach in this case. I concluded in the St Helen's case that an assertion of illogical or irrational reasoning did not raise a question of law within the scope of the relevant statutory provision. I take the same view in relation to s 63(1).
If, as asserted, the learned Chief Commissioner drew an inappropriate inference in relation to the failure to call the two witnesses, he did not thereby err in law. And he certainly did not have an obligation to draw an inference adverse to the employer as a result of the employer not calling either of them. The rule in Jones v Dunkel only applies where a party is required to explain or contradict something, and does not apply unless it would be natural for the party to call the witness, or the party might reasonably be expected to call the witness: Cross on Evidence, 10th Australian ed, at [1215]. The employer was not in any such situation. This ground must fail.
Not challenging the evidence of Ms Smith (Ground 7)
The worker returned to work on light duties shortly after the original injury. From the time of that return to work, he had a supervisor named Karen Smith. She gave evidence that the worker "well down the track" said that "he started to have numbness and tingling in his fingers on his left hand and some pain in his elbow". Those are symptoms of ulnar neuropathy. She said she was not able to date that conversation but that it would have been a couple of months after he returned to work, and only a couple of weeks before he went off to have his operation. That evidence was led by counsel for the employer and not challenged by counsel for the worker. In his reasons at [14], the learned Chief Commissioner said:
"Ms Smith was not challenged as to her evidence as to the approximate date that the worker first complained of ulnar nerve type symptoms."
That was a perfectly correct observation, but it has given rise to a ground of appeal. Ground 7 asserts this:
"The learned Chief Commissioner erred in law by drawing an adverse inference against the appellant for failing to challenge the evidence of Ms Smith about the date he first reported the relevant symptoms to her when the appellant did not give evidence that he reported symptoms to Ms Smith at an earlier date than the date provided in her evidence."
There was nothing illogical or impermissible about the learned Chief Commissioner taking into account the uncontradicted evidence of Ms Smith. The weight to be attached to that evidence might be a matter of controversy, given that workers may often suffer from symptoms that they do not report to their supervisors. There is nothing in the learned Chief Commissioner's reasons to suggest that he gave undue weight to that piece of evidence. Even if he did, the worst that could be said would be that there was an illogical aspect to his fact-finding. That could not amount to an error of law. This ground must therefore fail.
The adequacy of reasons (Grounds 3, 5, 9 and 10)
Grounds 3, 5, 9 and 10 each assert that the learned Chief Commissioner erred in law in failing to give reasons, or in failing to give adequate reasons, for rejecting various pieces of evidence favourable to the worker.
There is no common law rule requiring statutory tribunals to give reasons for their decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 616. However s 61(3) of the Act obliges the tribunal to "provide a statement in writing of its reasons for making the determination to which the order relates". These grounds therefore raise questions as to whether the learned Chief Commissioner's reasons were sufficient to satisfy that requirement. Since s 63(1) confers a right of appeal on a point of law, it must follow that s 61(3) requires the provision of a statement that will disclose how the tribunal interpreted the law and how the tribunal applied the law to the facts. That is to say, the statement must be sufficient to expose any reasoning that involves, or might arguably involve, an error of law. Section 61(3) also serves a second purpose. It requires the tribunal to let the parties know why they have won or lost.
In Attorney-General for Tasmania v Smith [1994] TASSC 138, A87/1994, Zeeman J said, at 8-9, that s 61(3) requires a commissioner of the tribunal to do the following things:
"1 make findings with respect to the essential facts relied upon by the parties relevant to the references before him;
2 where the evidence with respect to any fact was in dispute or unclear, state the basis for making a particular finding in respect thereof;
3 where appropriate, state the inferences drawn from the facts found and, where necessary, the basis for drawing such inferences;
4 expose the reasoning process which resulted in his determination to the scrutiny of the parties and any appellate court."
That passage has been cited with approval in a number of subsequent cases: Absolom v Mary Ogilvy Homes Society (above) at [33]; Pataki v University of Tasmania [2000] TASSC 144 at [14]; Youth & Family Focus Inc v Hughes [2007] TASSC 108 at [17].
When there is a duty to give reasons, a tedious examination of detailed evidence is not required, nor is a minute explanation of every step in the reasoning process: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; James v Eyles [2007] TASSC 55 at [27].
In this case, there was a body of evidence that supported the worker's contention that his ulnar neuropathy was a result of his shoulder injury, and there was a body of evidence that supported the employer's contention that it was not. The learned Chief Commissioner made it quite clear that he accepted the evidence supporting the employer's contention and, in various respects, rejected the evidence that supported the worker's contention. These grounds raise the question of whether he was thorough enough in stating his reasons for making a determination to that effect.
Ground 3 relates to evidence given by the worker. It reads as follows:
"The learned Chief Commissioner erred in law by concluding to reject and/or failing to give any or any sufficient reasons for rejecting, the appellant's evidence regarding the onset, severity and/or progression of the symptoms relevant to the condition of ulnar neuropathy since the injury on 7 March 2011 when there was no evidence to contradict his evidence."
This ground does not relate solely to the adequacy of reasons. It also includes an assertion that the learned Chief Commissioner erred in law by rejecting uncontradicted evidence from the worker. There is no obligation to accept uncontradicted evidence. If a fact-finder rejects evidence that happens to be true and correct, that amounts only to an error in fact-finding, and not to an error of law.
In his reasons, the learned Chief Commissioner referred to the worker's evidence as to the history of his ulnar neuropathy symptoms, but also took into account the fact that Dr Pava's notes made no reference to "an ulnar neuropathy type complaint until after the surgery in July 2011"; the number of consultations with Dr Pava before ulnar neuropathy symptoms were mentioned; the history recorded by the physiotherapist when the worker first saw him on 9 March 2011; the absence of reference to ulnar neuropathy symptoms in the physiotherapist's notes until 20 May 2011; the number of physiotherapy treatment sessions before then; the absence of references to ulnar neuropathy symptoms in the physiotherapist's subsequent notes; the evidence of the worker's son-in-law, Mr Trotter; and the evidence of the supervisor, Ms Smith. He made it very clear that the worker's evidence was substantially uncorroborated, and that that was why he was not accepting it. For these reasons, ground 3 must fail.
On 21 November 2011 the worker told Dr Ulman that at the time of the original injury he experienced a sensation like "being hit on the funny bone with a softball bat". He gave a very similar description in his evidence before the tribunal. In his reasons at [15], the learned Chief Commissioner said that "on the evidence" he was not persuaded that the worker had used that description before 21 November 2011. Ground 5 reads as follows:
"The learned Chief Commissioner erred in law by failing to give any or any sufficient reasons for finding that the appellant had not, before 21 November 2011, used the description of the sensation he felt in the incident on 7 March 2011 of 'being hit on the funny bone with a softball bat'."
The worker gave evidence that, when he first saw Dr Pava about his accident on 8 March 2011, he explained "that the first thought I had was the sensation of being [hit] with a softball bat, and my funny bone, because there were sensations through my arm and my ring and little finger". Dr Ulman gave evidence that he accepted that the worker had experienced the "funny bone" symptom. However the learned Chief Commissioner, in the course of making findings of fact, did not accept that the worker had used the description of a sensation like "being hit on the funny bone with a softball bat" before a particular date. The giving of more detailed reasons could not have resulted in any revelation as to whether his decision-making was in accordance with the law. At most, more detailed reasons might have exposed mistakes of fact and/or illogical reasoning. And I do not think that the need to let the parties know why the employer won and the worker lost compelled the learned Chief Commissioner to go into any more detail about this particular point. He did not regard the worker's evidence on the point as sufficiently reliable to warrant its acceptance. He might have been wrong to take that view, but there was no need to give more detailed reasons for it. Ground 5 must fail.
One of the worker's expert witnesses, Prof Chambers, did not give oral evidence before the tribunal. A report by him was tendered by consent, together with his curriculum vitae.
The learned Chief Commissioner mentioned Prof Chambers' report only once in his reasons, at [19]. After discussing a number of suggestions by Dr Gorman and Prof Einoder as to possible causes of the worker's ulnar nerve symptoms and rejecting those suggestions, he said:
"Professor Chambers, in his report (W8) addressed the same possibilities as to causation and for like reasons as above the Tribunal does not accept them."
Ground 9 reads as follows:
"The learned Chief Commissioner erred in law by failing to give any or any sufficient reasons for not accepting the evidence of Associate Professor Chambers, particularly when Associate Professor Chambers' evidence was tendered by consent."
Under s 49(1)(a) of the Act, the tribunal "may inform itself on any matter in such manner as it thinks fit". It is therefore open to the tribunal to receive a medical report that has been tendered by consent, and to give that report as much weight or as little weight as it thinks fit. There is certainly no reason why an opinion expressed by an expert in a report, and not tested by cross-examination of that expert, should be less readily rejected than an opinion expressed in oral evidence and tested by cross-examination.
The learned Chief Commissioner made it perfectly clear why he rejected Prof Chambers' opinions. He regarded his opinions and his reasoning as being indistinguishable from those of Dr Gorman and Prof Einoder, whose opinions he had decided not to accept. His conclusion in relation to Prof Chambers' views might have been based on mistakes and/or illogical reasoning, but it was a conclusion reached in the process of fact-finding. He did not need to say any more in order to reveal whether his fact-finding was in accordance with the law, nor for the purpose of letting the parties know why the employer had won and the worker had lost. Ground 9 must therefore fail.
Ground 10 reads as follows:
"The learned Chief Commissioner erred in law by finding that Dr Gorman, Professor Einoder and Associate Professor Chambers had based their opinions on an incorrect history as to the mechanism of injury when that finding was not open on the evidence and/or his findings of fact and/or he failed to give any or any sufficient reasons for making that findings, particularly when:
(a)Dr Gorman, Professor Einoder and Associate Professor Chambers each gave evidence addressing the facts and found by the learned Chief Commissioner;
(b)There were a number of possible mechanisms considered in evidence for the appellant's ulnar neuropathy each of which depended on particular aspects of the appellant's history; and
(c)A determination by the learned Chief Commissioner that he did not accept one aspect of the appellant's evidence regarding his history relevant to one cause, does not support the conclusion that the doctors have relied on an incorrect history for another cause when the other cause does not depend on the aspect of history that has not been accepted."
As I have said, there was conflicting expert opinion evidence, with Dr Ulman and Dr Van Winden taking the view that the worker's ulnar neuropathy was not the result of his accident, and the three doctors mentioned in ground 10 taking the opposite view. It was open to the learned Chief Commissioner to accept the opinions of Dr Ulman and Dr Van Winden and to reject the opinions of the other three doctors. That is what he did. He based that conclusion on the following:
· Findings of fact as to what the worker did or did not say about his symptoms to doctors, his physiotherapist, his supervisor, and other witnesses.
· Expert opinion evidence as to the possible causes of ulnar neuropathy.
· Findings of fact as to the mechanism of the worker's original injury.
· Evidence from the medical experts as to their findings on examining the worker.
· Evidence from the medical experts as to the significance or otherwise of "vague, nerve based symptoms in the arm and hand in a non-pathological distribution" and "a complaint of numbness with no specific symptoms of ulnar nerve involvement".
· A finding that a proposition that the worker suffered trauma to the ulnar nerve associated with the shoulder surgery, advanced by Dr Gorman, was speculative.
· Dr Van Winden's disagreement with that proposition.
· The fact that Prof Einoder did not provide "definitive support" for that proposition.
· Consideration of a suggestion by Dr Gorman that the insult to the ulnar nerve may have occurred as a result of the prolonged use of a sling.
· Medical evidence as to the consequences of the proper uses of a sling.
· Rejection of the history relied on by the worker's medical experts.
· Rejection of propositions relied upon by those experts as to the mechanism of the injury.
In my view the learned Chief Commissioner's stated reasons for his conclusion were sufficiently thorough to satisfy the requirement of s 61(3) for the tribunal to "provide a statement in writing of its reasons for making the determination". Ground 10 must therefore fail.
Conclusion
There are eleven grounds of appeal. I have rejected nine of them so far. Ground 6 was abandoned. That leaves ground 11. It asserts that the learned Chief Commissioner erred in law in his ultimate conclusion, without making any specific assertion of error. It appears to have been intended as a summary of the assertions made in the other grounds. It does not raise any contention as to error that I need to address.
I have rejected all of the contentions as to error relied upon by the worker. The appeal must therefore be dismissed.
16
1