Le Twins Pty Ltd v Luo
[2019] NSWWCCPD 52
•25 October 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Le Twins Pty Limited v Luo [2019] NSWWCCPD 52 |
| APPELLANT: | Le Twins Pty Limited |
| RESPONDENT: | Ze Ming Luo |
| INSURER: | AAI Limited t/as GIO – Agent for the Workers Compensation Nominal Insurer |
| FILE NUMBER: | A1-82/19 |
| ARBITRATOR: | Ms R Homan |
| DATE OF ARBITRATOR’S DECISION: | 5 April 2019 |
| DATE OF APPEAL DECISION: | 25 October 2019 |
| SUBJECT MATTER OF DECISION: | Causation; assessment of whole person impairment; whether two injuries received approximately a year apart are causally connected; whether pathology in the left shoulder ‘resulted from’ the initial right shoulder injury; two distinct injuries; combined assessment of both injuries not permitted; neither assessment of the two shoulders separately was greater than 10 per cent whole person impairment; award for respondent employer; Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 discussed; drawing of inferences from the evidence |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
| HEARING: | On the papers |
| REPRESENTATION: | Counsel: |
| W Nicholson (Respondent) | |
| Solicitors: | |
| Hicksons (Appellant) | |
| Brydens Lawyers (Respondent) | |
| ORDERS MADE ON APPEAL: | 1. The Order of the Arbitrator made 5 April 2019 is revoked and in substitution therefore I enter an award in favour of the respondent. |
INTRODUCTION
This is an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) against a decision of the Workers Compensation Commission constituted by an Arbitrator dated 5 April 2019.
THE DECISION UNDER APPEAL
The Certificate of Determination dated 5 April 2019 records as follows:
“The Commission determines:
1. The notice dated 4 January 2019 complied substantially with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 and was a notice of dispute for the purposes of s 289A of the same Act such that the Commission has jurisdiction to hear or deal with the dispute on which the respondent seeks to rely.
2. The applicant sustained a consequential condition affecting his left upper extremity (shoulder) as a result of the injury of 18 August 2015 to his right upper extremity (shoulder).
The Commission orders:
1. The respondent to pay the applicant lump sum compensation of $25,420 pursuant to s 66 of the Workers Compensation Act 1987 in respect of 12% whole person impairment of the right upper extremity (shoulder) and left upper extremity (shoulder) resulting from the injury on 18 August 2015.”[1]
[1] Luo v Le Twins Pty Ltd [2019] NSWWCC 130 (Reasons).
PRELIMINARY MATTERS
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.”
The parties to the appeal have each indicated that an oral hearing is not required and that the appeal can be decided solely on the basis of the written application and the written Notice of Opposition.
Pursuant to a direction made 11 October 2019 the parties were requested to make additional submissions on the relevance (if any) of Comcare v Martin [2016] HCA 43; 258 CLR 467 with respect to the appeal generally and, in particular, with respect to ground 5 of the appeal. The respondent’s additional submissions were dated 16 October 2019, the appellant’s dated 18 October 2019.
Having regard to the original and additional submissions of each party, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is an appropriate course.
The parties agree that the amount of compensation in issue exceeds the threshold specified in s 352(3) of the 1998 Act.
The Application for Appeal Against Decision of Arbitrator was filed on 3 May 2019 and has been commenced within the time limited by s 352(4) of the 1998 Act.
NATURE OF THE APPEAL
Section 352(5) of the 1998 Act confers the following jurisdiction:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
GROUNDS OF APPEAL
The grounds of appeal are:
(a) Ground 1: The Arbitrator erred in not first identifying the pathological change that occurred in the left shoulder on 19 August 2016.
(b) Ground 2: The Arbitrator’s failure to identify the pathological change caused her to fall into error with respect to her findings as to causation.
(c) Ground 3: The Arbitrator fell into error in relying on inferences which were not available on the evidence.
(d) Ground 4: The Arbitrator made an error in relying on Murphy v Allity Management Services[2] to support a finding of more than one cause of injury.
(e) Ground 5: The Arbitrator made an error of law in concluding that there was an unbroken causal chain and the pathology in the left shoulder ‘resulted from’ the right shoulder injury on 18 August 2015.
[2] [2015] NSWWCCPD 49 (Murphy).
BACKGROUND FACTS
The Arbitrator records the evidence at pars [12] to [35]. There is no factual challenge.
The following matters were agreed or at least were not in dispute:
“2. The applicant sustained an injury to his right shoulder on 18 August 2015, liability for which was accepted by the respondent. On 19 August 2016, Mr Luo was lifting three heavy plates out of a plate warmer with his left hand when he felt a sharp pain at his left shoulder. The respondent also accepted liability and paid compensation for a frank injury to the left shoulder on this date.
3. On 19 October 2018, the applicant through his solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 13% whole person impairment (WPI) of his bilateral upper extremities (shoulders) resulting from the injury on 18 August 2015. The applicant claimed that as a result of the right shoulder injury, he had lifted the heavy plates with his left hand because he was favouring his right shoulder. The applicant claimed that the condition in his left shoulder was consequential to the original right shoulder injury.
…
8. During the conciliation conference on 12 March 2019, the parties reached agreement and conceded that should there be determinations in favour of the applicant on either of the matters that remained in dispute, an award should be entered for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 12% WPI of the bilateral upper extremities (shoulders) for injury on 18 August 2015.”[3]
[3] Reasons [2]–[3], [8].
The Arbitrator’s findings on the controversial matters were as follows:
“76. Ms Balendra submitted that there was no evidence that the applicant would have been using his right arm for this lift or that the particular movement would not have been performed with the left hand even if the applicant’s right shoulder had been in normal health.
77. It is correct to say that this point has not been directly addressed by the evidence, although Mr Nicholson asserted and Dr Woo has confirmed that the applicant was right-hand dominant. Whilst there is no direct evidence of the weight of the plates that were lifted, I infer that they were reasonably heavy or at least sufficiently heavy as to give rise to the pathology in the applicant’s left shoulder. In these circumstances, it is reasonable to infer that the applicant would have lifted the plates with his dominant limb, or at least performed a bilateral lift had his right shoulder not been injured.
78. In my view, the circumstances of this case are distinguishable from those in Andersen [v J & M Predl Pty Limited [2018] NSWWCCPD 40]. In that case, the Arbitrator found that there was a novus actus interveniens for several reasons, including that the worker’s recollection of the fall was hazy, the fall was uncontrolled and that he was ‘pulled back when he tried to walk because he had placed his foot between the car and the kerb’, which ‘had nothing to do with’ the accepted injury to his shoulders.
79. I have drawn little further assistance from the report of Dr Woo on the issue of causation. Dr Woo referred to compensatory overuse of the left shoulder as a result of the right shoulder injury but there is no suggestion that the pathology in question arose from compensatory overuse. Dr Woo said there had been a frank mechanism of injury. Neither observation directly addresses the question on causation I am tasked with considering. I do not accept that the occurrence of a frank incident on 19 August 2016 necessarily precludes a causal connection with the injury on 18 August 2015.
80. I am comfortably satisfied on the applicant’s evidence and the contemporaneous medical evidence that at the time of the incident on 19 August 2016 the applicant’s right shoulder remained symptomatic. I accept that the applicant has been actively protecting his right shoulder at work in the weeks and months leading up to the incident on 19 August 2016. I accept that it was the applicant’s recollection and belief at the time of the incident that the injurious lift had been performed using his left hand specifically because he was protecting his right shoulder. I accept that the applicant was ordinarily right-hand dominant and accept, as a matter of common sense, that the applicant would more likely than not have performed the lift with his dominant hand or at least with both hands, had the right shoulder not been injured.
81. I am not satisfied that the injury to the applicant’s right shoulder was the only cause of the pathology in the applicant’s left shoulder. I accept Ms Balendra’s submission that there was a quick movement of the left shoulder which was causative of the pathology. I would even be prepared to accept that this was the main or dominant cause of the pathology. The relevant case law does, however, establish that there can be multiple causes of a condition.
82. After careful consideration of the particular facts of this case and the evidence before me, I am satisfied that the injury to the applicant’s right shoulder on 18 August 2015 materially contributed to the incident on 19 August 2016 and the pathology it caused. I am satisfied that there was an unbroken causal chain and that the pathology in the applicant’s left shoulder ‘resulted from’ the injury on 18 August 2015.
83. I find that the applicant sustained a consequential condition affecting his left upper extremity (shoulder) as a result of the injury of 18 August 2015 to his right upper extremity (shoulder).”[4]
[4] Reasons, [76]–[83].
As recorded by the Arbitrator at par [8] of her reasons the parties at the conciliation stage agreed that “should there be determinations in favour of the applicant on either of the matters that remained in dispute, an award should be entered for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 12% WPI of the bilateral upper extremities (shoulders) for injury on 18 August 2015.”[5]
[5] Reasons, [2]–[3], [8].
I take this to mean that the parties agreed that if Mr Luo persuaded the Arbitrator on the issue of causation then the impairment assessments for each shoulder could be combined. If that occurred the resulting whole person impairment percentage for the purpose of s 66(1) would exceed 10%, namely 12%, and the worker would be entitled to an award pursuant to s 66(1).
It is convenient to deal with ground 5 of the appeal first.
GROUND 5: The Arbitrator made an error of law in finding that there was an unbroken causal chain and the pathology in the left shoulder “resulted from” the right shoulder injury on 18 August 2015
Submissions
The appellant’s essential submissions are:
“3.28 For the reasons submitted above, on a fact by fact consideration of the evidence, the appellant submits the only finding open to the Arbitrator was that the injury was caused by the quick rotation of the left shoulder.
…
3.33 The appellant submits because of the error in identification of the nature and cause of the injury, the Arbitrator failed to consider whether the quick rotation of the left shoulder represented a break in the chain of causation or a novus actus.
3.34 The appellant submits that the Arbitrator ought to have found, if applying the Kooragang [Cement Pty v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796] test correctly, that it was the quick rotation of the left shoulder (which occurred independently of any injury to the right shoulder) which caused the rotator cuff tear in the left shoulder.
3.35 Andersen [referring to Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40] expounded the principles cited by Malcolm CJ in State Insurance Commissioner v Oakley (1990) Aust Torts Reports 81-003 at 67 to be authority for:
…
(3)where the further injury results from a subsequent accident which would have occurred and [had] the Plaintiff been in normal health and the damage sustained include[d] no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
3.36 The appellant submits that the injury on 19 August 2016 clearly falls into the third category and that the Arbitrator fell into error of law finding that the left shoulder injury resulted from the earlier shoulder [injury].” (emphasis in original).
The respondent submits in relation to ground 5:
“18. The Appellant misstates at paragraphs 3.28 and 3.29 of its Submissions, the matter the Arbitrator had before her. The facts as found by the Arbitrator established that the Respondent on 19 August 2016 sustained left shoulder injury during an incident at work lifting plates, while working as a chef, in his left hand and using the whole of the left upper limb including the left shoulder in that task. The fact of that injury was conceded at the outset of the arbitration hearing (see 30 on page 1 of the Transcript). The question for the Arbitrator was whether the incident and injury on 19 August 2016 was a result of the accepted injury of 18 August 2015 (see 5 on page 2 of the Transcript). The Arbitrator answered that question in the Respondent Mr Luo’s favour. In arriving at that conclusion, the Arbitrator made clear that she followed the approach commended in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 by ‘a common sense evaluation of the causal chain’. To suggest as the Appellant does here that the chain was ‘so attenuated’ to the ‘point of being snapped’ is without foundation.
…
21. A proper analysis of the established facts in this case and the Arbitrator’s Statement of Reasons demonstrates that the Respondent’s causal chain was indeed a very strong chain and that the Arbitrator’s decision, finding and reasons are without error.
22. On this basis the Appellant’s Submissions in paragraphs 3.30 to 3.36 fall away. The matters referred to in Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40 and State Insurance Commission v Oakley (1990) Aust Torts Reports 81-003 have no application.”
I extract the critical parts of the appellant’s further written submissions dealing with Comcare v Martin[6] as follows:
[6] [2016] HCA 43; 258 CLR 467 (Comcare v Martin).
“2.2 The appellant submits that the ‘results from’ test, expounded in Kooragang Cement Pty Limited v Bates,[7] while still relevant, must be applied in accordance with contemporary principles of causation, including those set out by the High Court in Martin.
[7] (1994) 35 NSWLR 452.
…
2.7 The appellant submits that from Martin and the above related cases to which it refers the following contemporary principles as to causation can be drawn:
(a)Analysis as to causation must always be purposive;
(b)A ‘common sense’ test cannot provide a useful universal approach to causation;
(c)While normative considerations have a role to play, this is not to invite decision makers to engage in value judgements at large;
(d)In analysing causation, decision makers are required to adequately interrogate statutory text, context and purpose; and
(e)Expert evidence can make common sense notions of causation meaningless in which case causation should be considered and evaluated with reference to the available expert evidence.
2.8 The respondent [sic, appellant] submits that in accordance with the above principles, the Arbitrator below was not permitted to simply rely on a common sense approach to causation but was required to undertake a fact by fact consideration of the evidence when making findings as to causation, even with respect to a consequential condition, particularly where expert evidence was available (see Appellant’s Submissions at 3.10–3.17 and 3.28) and to give consideration to context and purpose.
2.9 There is no dispute between the parties that the relevant test is whether the condition in the left shoulder resulted from the right shoulder injury on 18 August 2015.
2.10 The appellant maintains it[s] submission that the Arbitrator fell into error in finding that the left shoulder injury results from the earlier right shoulder injury.”
The respondent worker’s submissions on Comcare v Martin are:
“1. The respondent observes that Mr Luo’s case does not concern:
‘psychological injury’ [Comcare v Martin at (46)];
‘administrative action’ or ‘administrative action exclusion clause’ [Comcare v Martin at (44-47)]; or
‘perceived consequence’ … [Comcare v Martin at (48)].
2. In Comcare v Martin (supra) the event requiring determination as a matter of causation of ‘disease’ was ‘administrative action’. Was the ‘disease’ a result of administrative action in the context of a statutory clause [at (45)?
3. Common to the Comcare v Martin Judgment and the Arbitrator’s Reasons for Decision in these proceedings is agreement that the event from which the injury or disease results “need not be the sole cause” (Comcare v Martin [at (45)] and Arbitrator - see respondent’s submissions [at (17)].
4. Comcare v Martin [at (47)] held ‘… what is required to meet the causal connection connoted by … [an] exclusionary phrase [in the relevant legislative provision] … in its application to a disease … is that the employee would not have suffered that disease, as defined [in the provision] … if the administrative action had not been taken. That is to say, the causal connection is met if the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.’
5. The Arbitrator accepted as established facts the events stated in the respondent’s submissions [at (19(a) to (c)].
6. The respondent respectively [sic] submits that the Arbitrator’s considered reasons as to causation (and the respondent’s earlier written submissions concerning causation) satisfy any requirements stated in Comcare v Martin [2016] as to employment contribution to injury to a significant degree.”
Consideration
It was common ground that Mr Luo had sustained injury to his right shoulder on 18 August 2015 and injury to his left shoulder on 19 August 2016.[8]
[8] Reasons, [2].
The issue for determination is identified by the Arbitrator as “for the applicant to succeed in his claim for lump sum compensation, he must, amongst other things, establish that any permanent impairment in his left shoulder resulted from the injury to his right shoulder.”[9]
[9] Reasons, [60].
The Arbitrator quotes and directs attention to Section 322 of the 1998 Act which provides as follows:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.” (italicised emphasis added)
At paragraph [63] the Arbitrator’s quotes a passage from the decision of Kirby P in Kooragang Cement Pty Limited v Bates.[10] The emphasis in this passage is the sentence “what is required is a common sense evaluation of the causal chain”.
[10] (1994) 35 NSWLR 452 at 463G to 464A.
However omitted from the quoted passage is the final sentence (at page 464):
“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.”
That sentence directs attention to the need to address the statutory formula when considering the issue of causation.
The requirement that the decision maker address the statute is imperative as is made clear in Comcare v Martin. There the High Court was concerned with the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 14(1) provided that Comcare was liable to pay compensation in respect of an injury suffered by an employee if that injury resulted in incapacity for work. Section 5A(1) defined “injury” to include “a disease suffered by an employee …” other than “a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.
The Full Federal Court had invoked a “common sense” determination of causation: see Martin v Comcare [2015] FCAFC 169 [110], [125].
The High Court reversed the Full Federal Court’s decision. The High Court identified the controlling principle in the following terms:
“42 Causation in the legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm. Nevertheless, the majority in the Full Court construed the phrase ‘as a result of’ in s 5A(1) as importing a ‘common sense’ notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose.”[11]
[11] Martin, 479.
The error of law identified in that passage was that the Full Federal Court did not address or interrogate the statutory text, context and purpose. In my view the Arbitrator in the present matter likewise failed to interrogate the text, context and purpose of s 322 of the 1998 Act. The decision is therefore affected by legal error.
The conclusion expressed by the Arbitrator at [81]–[83] of the reasons, namely that the injury to the right shoulder on 18 August 2015 materially contributed to the incident on 19 August 2016, was not based on a proper “interrogation” of s 322.
The correct question for the purpose of s 322(2) was did the impairments result “from the same injury”; for the purpose of s 322(3) the correct question was did the impairments result from the “same incident”. The Arbitrator’s reasons did not address the relevant question under either s 322(2) or (3). For this reason the conclusion at pars [82]–[83] of the statement of reasons was affected by legal error and must be set aside.
The appellant’s submissions at 2.2, 2.7(d) and 2.8 of the additional submissions are correct. The respondent worker’s attempt to distinguish Comcare v Martin on the facts and on the basis of the particular legislation involved in that decision do not address the significant point of principle to be derived from Comcare v Martin.
The Arbitrator’s decision was affected by error of law. The two assessments should not have been combined to achieve an overall assessment of 12% for the purpose of an award under s 66(1).
As the critical factual findings are agreed it is appropriate that I re-determine the matter. I have provided the re-determination at the conclusion of these reasons.
My conclusion with respect to ground 5 is dispositive of the appeal. However, lest I be wrong and in deference to the parties’ submissions, I consider the additional grounds of appeal below.
GROUND 1: The Arbitrator erred in not first identifying the pathological change that occurred in the left shoulder on 19 August 2016
GROUND 2: The Arbitrator’s failure to identify the pathological change caused her to fall into error in her analysis of causation
It is convenient to deal with these two grounds of appeal together as they both involve a challenge to the Arbitrator’s failure to identify the pathological change that occurred in the left shoulder on 19 August 2016.
Submissions
The appellant’s essential submissions in relation to these two grounds of appeal are:
(a) As to Ground 1:
“3.2A proper analysis of the question of causation, which was necessary for the determination of the issues in dispute between the parties, required the Arbitrator to make a finding of the pathological change that occurred on 19 August 2016.
3.3Without doing so, the Arbitrator fell into error in moving to determine whether the pathological change was consequential on the 18 August 2015 injury to the right shoulder as advanced by the applicant before the Arbitrator or a separate frank injury as advanced by the respondent before the Arbitrator.
3.4The Arbitrator has identified and accepted two purported causes of the injury to the respondent’s left shoulder on 19 August 2016:
“…that the applicant was ordinarily right-hand dominant and accept, as a matter of common sense, that the applicant would more likely than not have performed the lift with his dominate hand or at least with both hands, had the right shoulder not been injured” (at Reasons [80])
and
“…that there was a quick movement of the left shoulder which was causative of the pathology. I would even be prepared to accept that this was the main or dominate cause of the pathology. The relevant case law does, however, establish that there can be multiple causes of a condition” (at Reasons [81])
3.5The appellant submits that the Arbitrator erred in making the findings at Reasons [80] and [81] and set out at paragraph 3.4 above without conducting a proper analysis of causation which required the pathological change be identified.”
(b) As to Ground 2:
“3.10Having found the respondent sustained a rotator cuff tear on 19 August 2018 [sic, 2016] the Arbitrator ought to have determined the cause of that pathology by reference to a fact by fact analysis of the evidence.
3.11The available medical evidence is limited on the question of causation.
3.12The Arbitrator accepted (at Reasons [77]) that there was no evidence that the respondent would have been using his right arm for the lift or that the lift would not have been performed with his left hand irrespective of his right shoulder injury.
…
3.17The appellant submits that in the absence of medical evidence and accepting the respondent as a witness of truth, that it was the act of rotating the shoulder quickly leading [to] the sharp pain that was causative of the left shoulder pathology.”
The crux of the respondent’s submissions in relation to these two grounds of appeal are:
(a) Ground 1:
“1.This ground is misconceived. The Appellant conceded injury to the Respondent’s left shoulder on 19th August 2016…
2.The acceptance of pathological change in the left shoulder by the Appellant, and indeed by IME, Dr Panjratan, was unsurprising given (as the Arbitrator stated) that ‘Dr Herald performed surgery to the left shoulder on 16 February 2017, paid by the insurer’ (paragraph 19 [Reasons]).
…
4.The Appellant [cites] Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 per McColl JA at [339] (Christensen) in support of its contended ground 1. The Respondent submits that neither the decision in Christensen nor the passage referred to assist the Appellant. The Court of Appeal was simply making the fundamental point that before finding that an injury had occurred it was necessary to point to evidence of the fact of ‘physiological change’. However, as already stated, injury to the left shoulder on 19 August 2016 was never an issue in Mr Luo’s case.”
(b) As to Ground 2:
“7.The Arbitrator accepted that since the Respondent’s injury of 18 August 2015 that he used his left upper limb for tasks previously carried out by using his right upper limb. …
8.The Arbitrator concluded that the Respondent’s use of his left upper limb on the 19 August 2006 [sic, 2016] to grab and lift three plates by using his left hand for the task was a result of his continuing pain, discomfort and restriction in his right upper limb which had been injured on 18 August 2015. The Arbitrator base[d] that conclusion on, inter alia, those clinical note entries and the medical opinion referred to above.
9.The Arbitrator reached the conclusion by following what she rightly saw as a common-sense approach to the chain of causal events ([Reasons] paragraph 63) noting the conclusion to be consistent with the decision in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
10.The Respondent’s actions (of removing the plates with his left hand and rotating his shoulder) as referred to in paragraph 3.16 and 3.17 of the Appellant’s Submissions are consistent with the Arbitrator’s understanding of the evidence, her analysis and conclusion as referred to above.”
Consideration
The decisions of Kennedy Cleaning Services Pty Limited v Petkoska;[12] Military Rehabilitation and Compensation Commission v May[13] and Tudor Capital Australia Pty Limited v Christensen[14] were each concerned with whether in the particular circumstances of the case, the worker suffered an “injury” as defined by the relevant statute.
[12] [2000] HCA 45; 200 CLR 286; 74 ALJR 1298; 174 ALR 626 (Petkoska).
[13] [2016] HCA 19; 257 CLR 468; 90 ALJR 626; 331 ALR 369 (May).
[14] [2017] NSWCA 260.
In the present matter, there was no contest on the issue of injury. The Arbitrator was not required to determine whether Mr Luo had injured his shoulders. As the respondent correctly submits it was common ground that Mr Luo had suffered an injury to the right shoulder on 18 August 2015 and an injury to the left shoulder on the 19 August 2016.
In any event, it is not necessary for Mr Luo to establish a diagnosis or a particular pathological condition. What is required is for the worker to establish that he sustained an injury in the qualifying circumstances contemplated by the legislation: May where in separate judgment, Gageler J said:
“80 The Full Court was right to point out that in the decision under appeal that the Act and the case law do not ‘preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion’ and to observe that ‘[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case’. But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.” (footnotes omitted)
In May, the respondent was in the Royal Australian Air Force and was required to undergo a series of vaccinations. He later claimed that as a result of the vaccinations he suffered from fatigue, illnesses, dizziness and low immunity. The issue was whether he satisfied the definition of “injury (other than a disease)”.
The plurality of the High Court (French CJ, Kiefel, Nettle and Gordon JJ) said:
“57 The Full Court concluded that the inquiry demanded by the statutory definition of ‘injury’ was ‘whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind’ (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
…
61 Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the ‘injury (other than a disease)’ limb of the definition of ‘injury’, unless that employee can satisfy the tribunal of fact that he or she has suffered an ‘injury’ (in the primary sense of the word), s 14 of the Act will not be engaged.
62 The ‘nature and incidents of the physiological (or psychiatric) change’ will determine whether there was an ‘injury (other than a disease)’. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.”[15] (emphasis in original, footnotes omitted)
[15] May, 483.
In Petkoska, the High Court was concerned with the Workers Compensation Act1951 (ACT). The worker collapsed at work having suffered brain lesion that caused a stroke. She had suffered for some years from rheumatic mitral valve disease. Her employment was not a contributing factor to the contraction of that disease and it did not aggravate or accelerate the underlying condition.
The headnote records “that the manifestation of a lesion to the brain was a ‘physical injury’ within s 7(1). Although the worker was also stricken by reason of the disease, she had sustained an injury ‘in the course of’ her employment and therefore was entitled to compensation under s 7(1) without recourse to s 9(1) and (2)(c).”
It is not correct to say that the Arbitrator failed to identify the pathological changes necessary for her determination. She considered and referred to the evidence as to the pathology in each of the respondent’s shoulders.[16]
[16] Reasons, [77], [79].
Furthermore, she rejected the “compensatory overuse” theory advanced by Dr Woo:
“Dr Woo referred to compensatory overuse of the left shoulder as a result of the right shoulder injury but there is no suggestion that the pathology in question arose from compensatory overuse. Dr Woo said there had been a frank mechanism of injury. … I do not accept that the occurrence of a frank incident on 19 August 2016 necessarily precludes a causal connection with the injury on 18 August 2015”.[17]
[17] Reasons, [79].
It is important to bear in mind that the question of causation is a factual enquiry having regard to the purposes for which the enquiry is undertaken.
In my view, the error was not that the Arbitrator failed to identify the pathology. She was not required to do more than she did in this regard because there was no dispute that Mr Luo had sustained injuries to both shoulders.
The Arbitrator erred because she did not consider causation for the purpose of s 322 of the 1998 Act as she was required to do.
In my view, the respondent’s submissions in answer to grounds 1 and 2 of the appeal, namely that they misconceive the relevant enquiry and task of the Arbitrator, are correct. Grounds 1 and 2 of the appeal are rejected.
GROUND 3: The Arbitrator fell into error in relying on inferences which were not available on the evidence
Submissions
The appellant usefully explicates this complaint in its submissions by reference to the findings of the Arbitrator.
The appellant submits:
“3.19 Having accepted there was no evidence that the respondent would have been using his right arm for the lift or that the lift would not have been performed with his left hand irrespective of his right shoulder injury (at Reasons 77), the Arbitrator proceeded to draw and rely on an inference that Mr Luo would have lifted the plates with his right hand or at least performed a bilateral lift had his right shoulder been in normal health and that in not doing so he injured his left shoulder.”
The respondent submits:
“13. Appellate courts may draw appropriate inferences from the proven facts just as trial courts may choose to do so. In this matter the proven facts are; injury to the right shoulder on 18 August 2015 with continuing pain, discomfort and restrictions of use up to and including 19 August 2016, protecting the injured right upper limb at work between 18 August 2015 and 19 August 2016, injury to the left shoulder on 19 August 2016 while grabbing and lifting plates while protecting the right upper limb including right shoulder…
14. If the Arbitrator’s conclusions rested on inferences drawn from the proven facts referred to above, the inferences were not only properly drawn by the Arbitrator, they are inferences that a presidential member of the commission would also draw in concluding the appeal in the Respondent’s favour.”
Consideration
In my view, the proven facts do not support the inferences drawn by the Arbitrator in her reasons at [77] and [80].
The fact that the plates were of an unspecified weight, that Mr Luo had an injury to his right shoulder and that in lifting using his left hand he sustained an injury to his left shoulder does not, in my view, give rise to an inference that had he not had an injury to the right shoulder he would have lifted with the right dominant arm or performed a bilateral lift.
Mr Luo’s evidence was:
“14. I then suffered an injury to my left shoulder at work on 19 August 2016. I was attempting to get 3 plates out of the plate warmer. … They were big plates stacked on top of each other. … I grasped the 3 plates together. As I went to get the 3 plates out of the plate warmer I felt pain at my left shoulder. I was attempting to move the plates from the plate warmer to the work bench and I rotated my left shoulder quickly and as I did this I felt a sharp pain at my left shoulder.
15. I did this motion and lift with my left arm and left hand. I didn’t utilise my right arm or hand in performing that task as a result of the fact that I was seeking to protect my right shoulder. I could have most probably done that lift with my right hand, that is to say I probably could have physically done it, but it would have caused me unnecessary pain at my right shoulder. Thus I used my left hand.”[18]
[18] Worker’s statement dated 8 January 2019, Application to Resolve a Dispute, p 71.
It seems to me that the choices available to Mr Luo to perform the lift having regard to his injured right shoulder were at least the following:
(a) a left arm lift as he did;
(b) perform a bilateral lift with his uninjured left arm and his partially recovered right arm, or
(c) decline to perform the lift at all.
There is no proper basis to determine that choosing to lift with the left arm was compelled by the pre-existing injury to the right arm. The Arbitrator inferred that Mr Luo would have lifted the plates with his dominant limb, or at least performed a bilateral lift, had his right shoulder not been injured. But there was no evidence to support this inference. Furthermore, there was no evidence to support a conclusion that had he performed a bilateral lift he would not have injured his left shoulder.
In a different context, Dixon CJ said in Jones v Dunkel:[19]
“… The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
[19] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel), 304–305.
The passage from Jones v Dunkel related to inferences to be drawn or not drawn in support of a finding of negligence. However, the principle with respect to inferential reasoning is, in my view, the same.
When he came to lift the plates on 19 August 2016, Mr Luo was confronted with a number of choices. The circumstances in which those choices were to be made included the fact that he had an injury to his right arm, but that is merely a background circumstance. The cause of the injury to the left arm was the choice made by Mr Luo in performing the lift, not the pre-existing injury to the right arm.
Were it necessary for me to determine, I would conclude that the Arbitrator was not entitled to draw the inference that she drew at [77].
Accordingly, were it necessary to do so, I would uphold the appeal with respect to ground 3.
GROUND 4: The Arbitrator made an error of law in relying on Murphy v Allity Management Services to support a finding of more than one cause of injury
The Arbitrator referred to the decision of Murphy, at [64] as authority for the proposition that a “condition” can have multiple causes. She relied on that proposition to support her conclusion at [81]: “The relevant case law does, however, establish that there can be multiple causes of a condition”. Her conclusion at [81] was that the injury to the left shoulder was caused by the injury to the right shoulder and the “quick movement of the left shoulder”.
Submissions
The appellant’s submission is that the decision’s authority is limited to claims for treatment expenses. For that purpose, a worker needs to establish that the treatment results from an injury that materially contributed to the need for that treatment even if the need for surgery arises from more than one cause. The appellant refers to [58] of the decision in Murphy.
The respondent submits that the decision of Murphy is relevant to other compensation entitlements. He says: “The Arbitrator merely observed that both the cause and the effect parts of the equation may involve multiple factors.”
Consideration
In my view, Murphy is an example of the requirement to consider the purpose for which causation is being determined (Comcare v Martin above).
The determination in Murphy was for the purpose of an award under s 60 in respect of surgery that had been performed. The test in Murphy was whether or not the surgery was “reasonably necessary” in the circumstances. The statutory question in the present case is whether the impairment suffered by the worker in respect of the two injuries to his shoulders could be accommodated within sub-sections 322(2) or (3).
I do not regard the Arbitrator’s conclusion at [81] of her reasons that a condition may have more than one cause as incorrect. Most conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.
In my view, the Arbitrator was in error in her conclusion that Mr Luo’s impairment was caused by the injury to the right arm. That was because the injury to the right arm did not materially contribute to the injury to the left arm. That is because “[t]he law does not accept John Stuart Mill’s definition of cause as the sum of the conditions which are jointly sufficient to produce it. … at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage”: March v E & M.H Stramare.[20]
[20] [1991] HCA 12; 171 CLR 506, 509 per Mason CJ.
Ground 4 should be dismissed.
CONCLUSION
The Arbitrator’s conclusion that Mr Luo sustained a consequential condition affecting his left upper limb (shoulder) as a result of the injury of 18 August 2015 to his right upper extremity (shoulder) was in error.
Ground 5 of the appeal is allowed. It is unnecessary to determine the other grounds of appeal. However, in my view, grounds 1, 2 and 4 of the appeal should be dismissed and ground 3 of the appeal should be upheld.
RE-DETERMINATION
On the agreed findings, there are two injuries: the first to the right shoulder on 18August 2015; the second to the left shoulder on 19 August 2016. Plainly the injury to each of Mr Luo’s shoulders did not result from the “same injury”. The injuries occurred on different dates and to different shoulders.
Section 322(2) requires impairments that result from the same injury to be assessed together. It does not authorise impairments from different injuries to be assessed together.
Therefore, s 322(2) is not engaged.
Furthermore, while subsection 322(3) permits impairments from more than one injury to be assessed together this is only permitted where the injuries arise out of the same incident. Mr Luo’s two impairments resulted from two separate and different incidents.
On 18 August 2015 Mr Luo was pulling a box of beer out of the back of the van when he felt a sharp pain in his right shoulder. This incident resulted in an injury to the right shoulder. On 19 August 2016 Mr Luo was getting three plates out of the plate warmer. This incident resulted in an injury to the left shoulder.
The impairments to Mr Luo’s shoulders did not result from the same injury (s 322(2)) and did not arise out of the same incident (s 322(3)). Therefor the conditions necessary for a combined assessment were not established and s 322 was not engaged.
As the individual assessments resulting from the separate injuries did not result in a degree of permanent impairment greater than 10%, Mr Luo was not was not entitled to compensation under s 66(1) of the 1987 Act.
In the result the Certificate of Determination should be revoked as to determination at item 2 and the Order of the Commission should be in favour of the employer.
DECISION
In the circumstances, it is appropriate that I re-determine the matter rather than remit the proceedings to the Arbitrator.
Pursuant to s 352(5) of the 1998 Act I order:
“The Order of the Arbitrator made 5 April 2019 is revoked and in substitution therefore I enter an award in favour of the respondent.”
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
25 October 2019
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