Le v Stegbar Manufacturing Services Pty Ltd - [2018] NSWWCCPD 15

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Le v Stegbar Manufacturing Services Pty Ltd [2018] NSWWCCPD 15
APPELLANT:	Thi Tuyet Nga Le
RESPONDENT:	Stegbar Manufacturing Services Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3951/17
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	20 December 2017
DATE OF APPEAL DECISION:	18 April 2018
SUBJECT MATTER OF DECISION:	Basis for appeal, s 352 of the Workplace Injury Management and Workers Compensation Act 1998; medical evidence, correlation of facts established and those accepted by expert; application of the principles discussed in *Paric* v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gajic Lawyers
Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 20 December 2017 is confirmed.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s factual finding that the worker did not sustain an injury to the right upper extremity (shoulder), arising out of or in the course of her employment and consequent upon an injury to the left upper extremity. In particular, it concerns an alleged failure to give the worker’s medical evidence due weight.

BACKGROUND

In July 2003, Thi Tuyet Nga Le, the worker, commenced as a process worker for the respondent, Stegbar Manufacturing Services Pty Ltd. She worked in the timber section assembling doors, and frames for doors and windows. She used tools such as a hammer and nail gun and was required to carry up to 20 kg. Ms Le claims that the duties she undertook were repetitive, manual and heavy in nature.
On 31 March 2015, Ms Le claimed that she sustained an injury arising out of or in the course of her employment with the respondent from July 2003 until termination in January 2015. She specifically claimed injury to the right upper extremity (right shoulder), left upper extremity (left shoulder, left elbow and left wrist) and cervical spine. She further claimed that, as a result of those injuries, she overused her right shoulder and neck. She claimed lump sum compensation and medical expenses pursuant to s 66 and s 60 of the Workers Compensation Act 1987 (the 1987 Act), respectively. Ms Le relied on the report of Dr Uthum K Dias, occupational physician, dated 12 December 2014.
On 11 June 2015, the respondent’s insurer, QBE, issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The insurer disputed injury to the cervical spine and both shoulders. It accepted liability to the left wrist but said there was no assessable permanent impairment as a result of that injury. The insurer relied on the report of Dr Richard Powell, orthopaedic surgeon, dated 8 May 2015.
On 27 April 2016, the insurer issued a further s 74 notice denying liability in respect of proposed surgery to the left wrist. It relied on the report of Dr Michael McGlynn, hand and plastic surgeon, dated 18 June 2015.
On 8 August 2017, Ms Le filed an Application to Resolve a Dispute (the Application). She sought lump sum compensation and medical expenses for injury to the right upper extremity (right shoulder), left upper extremity (left shoulder, left elbow and left wrist) and cervical spine as a result of the nature and conditions of employment with the respondent.
On 23 August 2017, the respondent filed a reply to the Application relying on the s 74 notices.
On 26 October 2017, the matter proceeded to conciliation/arbitration proceedings. During those proceedings, the respondent withdrew reliance on the report of Dr Powell, dated 8 May 2015 (sic, 1 June 2015). Ms Le also withdrew reliance on the report of Dr James G Bodel, orthopaedic surgeon, dated 17 May 2017. This was because of cl 44 of the Workers Compensation Regulation 2016, which imposes restrictions on the number of medical reports that can be admitted in proceedings on a claim. Following the conciliation/arbitration proceedings, the Arbitrator reserved the decision.
On 20 December 2017, the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1. The applicant sustained injury to the left upper extremity (wrist, elbow and shoulder) arising out of or in the course of her employment with the respondent.

2. The injury was a disease injury contracted by the applicant in the course of her employment with the respondent which employment was the main contributing factor to contracting the disease.

3. Award for the respondent in respect of injury to the right upper extremity (shoulder) and condition in the right upper extremity (shoulder) consequent upon injury to the left upper extremity.

4. Award for the respondent in respect of injury to the cervical spine and condition in the cervical spine consequent upon injury to the left upper extremity.

5. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment as a result of injury to the left upper extremity (wrist, elbow and shoulder) deemed to have occurred on 31 March 2015.

6. The documents to be referred to the Approved Medical Specialist are:

(a)Application to Resolve a Dispute and attachments, excluding a report of Dr James G Bodel dated 17 May 2017,

(b)Reply and attachments, excluding the report of Dr Richard Powell dated 8 May 2016.

A brief statement is attached setting out the Commission’s reasons for the determination.”

Ms Le appeals the Arbitrator’s finding for the respondent in respect of injury to the right upper extremity (shoulder) and condition in the right upper extremity (shoulder) consequent upon injury to the left upper extremity. Ms Le does not dispute the Arbitrator’s finding of no injury to the cervical spine.

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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

MS LE’S EVIDENCE

In evidence is a statement by Ms Le, dated 8 August 2016. This statement was prepared by interview, in the presence of a Vietnamese interpreter. In that statement Ms Le records that she commenced employment with the respondent on a full-time basis as a process worker from about July 2003. She worked in the timber section assembling timber doors, frames for doors and windows. She describes in detail her daily duties and how specific tasks were undertaken. She states that she was also required to sand the doors. She explained that the work was “manual repetitive and strenuous in nature”. She adds:
“My duties involved a lot of, bending, twisting, lifting, including above my head, prolonged neck flexion, standing and walking.
My duties were repetitive, manual, and heavy in nature. My role required me to work at speed.”
Ms Le states that from the first half of 2009 she felt pain gradually develop over time in her left wrist. The pain continued to increase and she began to feel additional pain in her left elbow, left and right shoulders and her neck. She describes this pain feeling “like muscle fatigue” and she “did not mention it to [her] doctor”. She claims she cannot carry anything heavier then 1kg in her left arm and 3kg in her right arm.
On or about 10 August 2009, the pain was “very intense in [her] left wrist, left elbow, cervical spine, and both shoulders.” She reported this to her supervisor Maria who reported the injury to her manager, Paul. She was then referred to a company doctor in Merrylands. She only mentioned complaint of the left wrist and left elbow as “they were the most intense in pain”. Ms Le was placed on light duties for four months.
Ms Le continued to have ongoing pain in her left wrist, left elbow, cervical spine, and both shoulders over the next few years. She claims that this pain made “it difficult to work as [she] was unable to lift or do [her] normal duties without great difficulty.” The pain was most intensive in her left wrist and left elbow.
On 16 September 2013, she could no longer cope with the pain and duties. She reported her symptoms to her employer and filled out an incident report.
In January 2014, Ms Le underwent a left wrist arthroscopy under the hand of Dr Nicholas Smith, orthopaedic surgeon.
In March 2014, the pain in her left and right shoulders and neck became too intense, and she reported this to Dr Loi Lam, general practitioner.
Ms Le claims that she continued to experience stiffness and pain in her “right and left shoulders, particularly with overhead movement.” She states that after surgery the pain and numbness in her wrist was worse and radiated to the upper arm. She also states that there “is weakness in [her] left arm and more pain than my right”.
On 26 January 2015, Ms Le was terminated from employment with the respondent.
Ms Le claims that she continues to experience “pain in [her] left wrist, left elbow, cervical spine and both shoulders on a day to day basis.” She feels pins and needles and numbness in her left wrist, left elbow, cervical spine and both shoulders. The pain affects her sleep at night and her ability to walk and stand. The pain gets worse “in the cold and hot weather”.
Ms Le claims that she requires assistance with tasks that involve lifting her arms. She is unable to do any domestic duties around the house. She states that:
“Due to the nature and conditions of my employment I suffered injury to my Left wrist, left shoulder, left elbow, left upper extremity, cervical spine, Right shoulder and consequential gastro intestinal injury.”

MEDICAL EVIDENCE

In evidence are several WorkCover NSW Medical Certificates, certifying Ms Le for suitable duties, from 7 September 2009 to 8 February 2017. The diagnosis recorded in those certificates does not refer to the right shoulder.
In evidence are also the clinical notes of Dr Candice Chin, Ms Le’s general practitioner. In those clinical notes, there are several complaints of left wrist pain recorded from 17 September 2013. There does not appear to be any recorded complaint of injury to the right shoulder. Ms Le ceased attending on Dr Chin in March 2014, because Dr Chin could not speak Vietnamese.
On 21 March 2014, Ms Le first attended Dr Lam. Ms Le subsequently attended Dr Lam on several occasions complaining about pain in the left wrist and forearm. There is no reference to right shoulder complaint until 30 June 2014, where Dr Lam records “[r]ight shoulder pain due to overuse”. Dr Lam then records complaint of left wrist and forearm pain and radiological investigations in respect of the left wrist.
Between 30 June 2014 and 8 February 2017, Ms Le attended Dr Lam on many occasions. In the clinical notes, Dr Lam records consistent complaint of “left wrist pain and aching radiating to forearm – shooting pain” and “[o]veruse of elbows and shoulders giving pain”. These entries are consistently record on more than 40 subsequent occasions.
On 12 December 2014, Ms Le was assessed by Dr Dias. In a report dated the same, Dr Dias recorded a history that Ms Le’s role required her to carry timber and aluminium frames weighing up to 20 kg on a repetitive basis. She would use tools such as a hammer and nail gun on a frequent basis and manually sand flyscreen and wooden doors. Her role was “essentially repetitive, manual and required a certain degree of speed to complete the tasks in the required time frames.” He recorded that Ms Le did not have any previous injures to her “left wrist, left elbow, right and left shoulders or cervical spine, prior to mid-2009”. He further recorded that Ms Le reported “stiffness and pain in her right and left shoulders, particularly with overhead movement.”
Dr Dias recorded that Ms Le stated she is “independent in her activities of daily living with respect to self-care needs” but sometimes “struggles to put tops and pullovers on”. She does not do any domestic duties around the house and her husband does the cooking and cleaning. Ms Le can undertake “very light gardening duties such as picking fruit in her home garden” but her husband does “most of the heavier gardening duties”. Her husband also accompanies her to the grocery store and does “all of the lifting and transferring of groceries from the car to the house”.
Dr Dias said:
“Based on the chronicity, severity and distribution of her symptomatology in relation to her injuries to her left upper extremity, cervical spine and right shoulder, in my opinion, Ms Le’s disabilities and symptomatology stemming from these injuries are likely to persist indefinitely into the future. I believe these injuries were both consequential to the left injury and also arose out of the course of her employment as a process worker with [the respondent]. Her pre-injury job role as a process worker was a repetitive manual job role, and required repetitive manual handling involving the right and left upper extremities as well as repetitive tool use and some overhead work. In my opinion, on the balance of probabilities, her employment with [the respondent] was and remains a substantial contributing factor to these injuries.”
Dr Dias found that Ms Le had symptoms and signs consistent with “chronic right shoulder impingement syndrome”. He also found Ms Le’s employment with the respondent was the substantial contributing factor to the injury to the right shoulder. He further found Ms Le had a 6% whole person impairment in respect of the right upper extremity.
On 1 April 2015, Ms Le underwent an x-ray of her right and left shoulder and an ultrasound of her right shoulder, following what appears to be a request by Dr H Mai for the respondent. In a report by Dr Bit Wong, dated the same, it was recorded that the x-ray of the right shoulder did not reveal significant bony or joint abnormality. The ultrasound of the right shoulder showed slight heterogenous appearance at the subscapularis tendon and supraspinatus tendon, which was noted to be suggestive of tendinosis.
On 25 May 2015, Ms Le was examined by Dr McGlynn at the request of the respondent. In a report dated 18 June 2015, Dr McGlynn recorded a history of complaint of pain in the left wrist and left shoulder. The shoulder symptoms progressed to involve both shoulders and her neck. He recorded Ms Le’s presents symptoms:
“She says she has constant pain in the left arm radiating up the arm to the shoulder as well as pain in the right shoulder and the neck.
Any movement of the left wrist aggravate the left wrist pain.
Movement of both shoulders causes pain.”
Dr McGlynn recorded the following, in response to a request to comment on findings on examination, diagnosis, and whether the condition is consistent with the history given:
“Diagnosis: Left wrist pain.
This was originally thought to be due to a TFCC tear but Dr N Smith reported no abnormality was seen at arthroscopy.
She has pain up the left arm to the shoulder and complains of pain in the right shoulder and neck.
There is no physical abnormality or pathology identified as the cause of her pain.
She is likely to have sustained an overuse injury of the left wrist at work in September 2013; but this has now resolved.
Consistency: The presentation is consistent. The history is one of an overuse injury caused by the repetitive manual work in September 2013. No specific injury has been identified as a cause of her extensive ongoing left wrist and arm pain. Despite over 12 months of restricted light duties, physiotherapy, investigations and assessment by hand surgeon, rehabilitation physician, and psychologist the symptoms have persisted and become worse.
Overuse injuries usually resolve within six weeks with rest and avoidance of the activity that caused the condition.
My impression is that her symptoms have a psychological basis or are exaggerated.”
Dr McGlynn did not consider that Ms Le’s condition was related to employment. He found there to be complaints of pain for which he was “unable to find a physical cause.” He suggested that the cause was psychological but stated such a diagnosis was outside his area of expertise.
On 18 June 2015, Dr McGlynn provided a report of impairment assessment. He recorded that on examination there was no loss of active movement range of “elbow, wrist or hand joints of either upper limb”. He added that assessment of active shoulder joint ranges of motion produced inconsistent results which were “suggestive of voluntary avoidance of movement.” He did not consider there to be any permanent impairment of either upper limb.
On 10 December 2015, Dr McGlynn provided a supplementary report. Dr McGlynn reviewed the radiological reports of the left wrist and arm and did not recommend or support the proposed revision arthroscopy and ulnar shortening osteotomy. He stated that these procedures “are not justified and may make her symptoms worse”. On 7 April 2016, Dr McGlynn confirmed his comments in his report of 10 December 2015, following review of further radiological reports.

THE ARBITRATOR’S REASONS

The case presented at arbitration alleged that:
(a)Ms Le suffered injuries to her right shoulder and neck as a result of the nature and conditions of her employment with the respondent (s 4(b)(i) of the 1987 Act injury), or
(b)that the injuries to the right shoulder and neck were consequent upon the injuries sustained to her left arm (wrist, shoulder and elbow).
The expert evidence in support of Ms Le’s case relied principally on the opinion of Dr Dias. Dr Dias recorded that Ms Le experienced pain in the left elbow, cervical spine and both shoulders since approximately 2009. Dr Dias noted that those symptoms had worsened over the course of the previous five years.
The Arbitrator stated:
“The history of [Ms Le] suffering pain in her left elbow, cervical spine and right and left shoulders since approximately 2009 is clearly wrong.”[1]
[1] Le v Stegbar Manufacturing Services Pty Ltd [2017] NSWWCC 309 (Reasons), [67].
The Arbitrator found that whilst Ms Le had continued to complain of symptoms of her left upper extremity up until the end of 2014 and into 2015, the first reference to right shoulder pain due to overuse appeared in the clinical note of Dr Lam on 30 June 2014.
Shortly thereafter, Ms Le was referred for an MRI scan of the cervical spine which demonstrated mild disc herniation at C5/6 with no evidence of neural compression.
Dr Dalton’s review of the MRI scan and findings on 17 November 2014 concluded that Ms Le’s current cervical symptoms were not related to the C5/6 protrusion.
In so far as the disputed injuries are concerned, Dr Dias diagnosed a chronic, non-specific cervical pain syndrome on a background of C5/6 disc prolapse and chronic right shoulder impingement syndrome in respect of which he said “diagnostic clarity would be greatly aided by objective imaging studies of that region.”
The Arbitrator noted Dr Dias’ opinion that the disputed injuries were both consequential to the left arm injuries and also arose out of the course of her employment as a process worker with the respondent.[2]
[2] Reasons, [70].
The Arbitrator accepted that Ms Le’s work with the respondent was a repetitive manual job requiring repetitive manual handling.[3] However, the Arbitrator found that it was quite clear on the evidence that any complaint about the right shoulder and cervical spine was not recorded until about mid-2014 at a time when Ms Le was on light duties as a result of the injury to her left upper extremity.

[3] Reasons, [71].

The Arbitrator added:
“Dr Dias has expressed his opinion on the basis of [Ms Le] suffering chronic symptoms in her cervical spine and right upper extremity over the period 2009 and 2014 and this is simply not the case.”[4]
[4] Reasons, [71].
Further he noted, Dr Dalton expressed the view that the symptoms experienced by Ms Le in 2014 were not related to the C5/6 disc protrusion, revealed on the radiological investigation in July 2014. The Arbitrator added:
“Having regard to the principle expressed in [Makita Aust Pty Ltd v Sprowles [2001] NSWCA 305; (2001) NSWLR 705 (Makita)], the basis on which the Dr Dias expresses his opinion in respect of injury or consequential condition in the cervical spine and right upper extremity has not been made out.”[5]
[5] Reasons, [71].
The Arbitrator referred to Ms Le’s reliance on well-established law that an expert medical opinion is of limited probative value in the overall assessment of the issues if it is based on an inaccurate history.[6]
[6] Citing Taylor v J & D Stephens Pty Ltd [2017] NSWCCPD 50, [107]; Department of Education and Training v Ireland [2008] NSWWCCPD 134.
For these reasons, the Arbitrator concluded that there should be an award in favour of the respondent in respect of the disputed injuries to the right upper extremity and the cervical spine. He entered an award for Ms Le in respect of the left upper extremity and remitted the matter to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment of the left upper extremity, deemed to have occurred on 31 March 2015.

GROUNDS OF APPEAL

Ms Le alleges that the Arbitrator erred:
(a)by rejecting the opinion of Dr Dias and/or failing to give his opinion due weight;
(b)failing to accept that the evidence provided a fair climate for the acceptance of Dr Dias’ opinion, and
(c)by imposing “an unnecessarily strict test requiring exact correspondence between the history in Dr Dias’ medical report and what was proved in evidence for the validity of the medical opinion”.

MS LE’S SUBMISSIONS

Ms Le clarifies that she does not challenge the Arbitrator’s finding of no injury to the cervical spine. She accepts that the Arbitrator was “entitled to find as he did that the evidence of Dr Dalton who viewed the MRI Scan findings on 17-11-2014 indicated that [Ms Le’s] symptoms were not related to the C5/6 mild disc protrusion shown on MRI Scan. (Reasons [68])”. Ms Le only seeks relief in with respect to the Arbitrator’s findings of no injury to the right upper extremity.
Ms Le’s evidence was that she felt pain gradually develop in her left wrist in the first half of 2009. The pain continued to increase and she began to feel additional pain in her left elbow, left and right shoulders and neck.
Ms Le only reported left wrist and elbow symptoms because they were the most intense. She maintained that she continued to have pain in her left wrist, left elbow, cervical spine and both shoulders over “the next few years”.
In March or April 2014, Ms Le consulted Dr Lam and complained about pain in her shoulders and neck.
The consultation entries in the notes of Dr Lam between 30 June 2014 and 9 January 2017 consistently refer to overuse of the elbows and shoulders. X-ray and ultrasound reports of Ms Le’s shoulders on 1 April 2015 indicated right shoulder mild tendinosis of the subscapularis and supraspinatus tendons. Ms Le submits that this evidence together with Dr Dias’ evidence supports the allegation of work injury to the shoulders.
In appeal under s 352 of the 1998 Act, Ms Le submits, the error is demonstrated where the Arbitrator’s findings “were not fairly supported by the evidence, and/or the evidence, properly evaluated, demonstrates a contrary view which ought oust the view taken by the Arbitrator.”[7]
[7] Citing Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19].
Ms Le submits that the relevant question is: “can it be shown that the evidence, properly evaluated, demonstrates that a contrary view ought to have been taken so as to oust the view taken by the Arbitrator?”
Ms Le concedes there is a “tension” between the history provided to Dr Dias and her evidence with respect to the onset of the neck, right shoulder and left arm pain since 2009. However, Ms Le submits that there is a history of worsening of pain in those areas. The complaints in respect of the right shoulder pain due to overuse are seen in Dr Lam’s notes commencing from at least 30 June 2014. The clinical notes of Dr Lam show “an uncontested history of consistent reporting/confirmation of overuse pain in the right shoulder subsequent to surgery performed by Dr Ian Smith on the left wrist on 13-2-2014.”
Ms Le suffered debilitating pain in the right shoulder after having undergone left wrist surgery on 13 February 2014 and undertaking post-operative physiotherapy. At that time, she continued to suffer from restriction in relation to the left wrist, elbow and shoulder.
Dr Lam’s clinical notes of 19 August 2014 refer to overuse of the elbows and shoulders giving rise to pain. From August 2014 until her employment was terminated, on 26 January 2015, Ms Le continued to receive treatment but the focus was on her left upper extremity and cervical spine.
From a logical and common-sense approach, it is consistent, so it submitted, that Ms Le would favour her left arm and substitute the use of the right arm for the performance of tasks after her surgery in February 2014. This is supported by the opinion of Dr Dias.
It is submitted that even before Ms Le had surgery on her left wrist, according to her statement, she suffered from worsening pain in her shoulders since 2009. She did not report the symptoms at that time due to the focus on the more significant symptoms in her left wrist. Since the surgery to her left wrist Ms Le has had ongoing complaints of significant pain and restriction of pain and movement in her left elbow and shoulder. Since mid-2014, she has complained of restrictions and pain in her right shoulder. Such evidence is not at odds with the history provided to Dr Dias and is consistent with worsening pain over the period of 2009 to 2017.
Ms Le also submits that the Arbitrator did not consider whether there was a fair climate for the acceptance of Dr Dias’ opinion, namely that the condition of the right shoulder was consequential upon the accepted injuries to the left arm and the surgery performed by Dr Smith in February 2014.[8]
[8] Citing Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85 (Paric).
The Arbitrator failed to consider and give weight to the evidence of Ms Le, particularly her explanation for the worsening of pain in her right shoulder which remained unreported until 2014 due to her main injury, the injury to the left wrist, being the focus of treatment until that time. The Arbitrator “imposed too exacting a standard of comparison between the whole of the available evidence and the history seen to be relied upon by Dr Dias.” The history of the onset of complaints set out in Dr Dias’ report is satisfactory by way of history.[9]
[9] Citing Paric.
It is not necessary, so it is submitted, that there be an exact correspondence between the history and the medical report and the facts established by acceptable evidence for an expert’s opinion to be valid. All that is required, both as a matter of principle and common sense, is that there be real correspondence between the two.[10]
[10] Citing Paric.
Justice Heydon’s remarks in Makita may be considered as having “enunciated a counsel of perfection”. Doctors in expressing opinion rely on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at opinion it cannot always be elaborated and explained at length.[11]
[11] Citing New South Wales Police Force v Hahn [2017] NSWWCCPD 51 (Hahn), [60].
It is submitted that it was open to the Arbitrator to conclude that the condition of the right shoulder was either consequential upon the injury to the left arm or that it arose out of the employment.[12] Ms Le submits:
“The re-inforcement (sic) of such principle is to be found in the principle gleaned from Kooragang v Bates and it is that decision (Kirby P) as he then was which generally assists along with Paric in this case.”[13]
[12] Citing Hahn, [58].
[13] Citing Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).

Finally, Ms Le submits that there was clear evidence explaining why she did not report her initial shoulder symptoms from 2009. There is also clear evidence explaining why she began to report to her treating doctor the onset of more severe symptoms in her shoulders in 2014 as they began to worsen. This is consistent with the post-left wrist injury surgery adjustment and her return to work in 2014.

THE RESPONDENT’S SUBMISSIONS

The respondent submits that the Arbitrator correctly rejected Dr Dias’ opinion.
Ms Le’s contention is that Dr Lam’s clinical notes show consistent reporting of right shoulder pain and that this is consistent with the history taken by Dr Dias. However, the respondent submits that this is simply not so.
Dr Lam’s clinical notes were excessively repetitive and little weight should be placed on them. The respondent cites several examples of phrases repetitively appearing in the clinical notes such as “numbness and tingly sensation in the fourth and fifth finger”, “stress (sick) and frustrated with the process” and “difficult to open bottles”.
It is submitted that Dr Lam’s notes are not only repetitive but are also inaccurate. For example, Dr Lam noted that when Ms Le consulted him on 28 July 2014 that, among other things, “afraid she won’t be able to work after operation”, when in fact Ms Le had submitted to the arthroscopy several months earlier (13 February 2014) and had returned to work on light duties.
Dr Lam’s clinical notes are inconsistent with Ms Le’s statement. She alleged that her duties placed “a lot of strain on [her] left and right shoulders and that she suffered pain in the right shoulder from 2009.”[14]
[14] Citing Ms Le’s statement, [25], [30].
In fact, the right shoulder was not mentioned in the clinical notes until 30 June 2014.[15] Accordingly, so it is submitted, Ms Le had not reported, let alone made consistent reporting, of her right shoulder from 2009. Therefore, Ms Le’s case that the right shoulder problems had been consistently reported is not true. Ms Le had ample opportunity to report the symptoms had she chosen to do so.
[15] Citing Dr Lam’s notes of 30 June 2014.
Accordingly, the history taken by Dr Dias in relation to complaints of pain in the right shoulder since 2009 is not made out on the evidence and the Arbitrator was correct to find there was insufficient evidence to prove Ms Le’s case to the requisite standard.
The respondent submits that Ms Le’s complaints were not supported by the “fair climate of evidence” and as such, the history taken by Dr Dias is wrong. Accordingly, the Arbitrator was correct to reject Dr Dias’ opinion.
Ms Le’s reliance on Raulston does not assist her case and in fact favours the respondent. MS Le submits:
“Significantly, it must be shown that the Arbitrator was wrong, and when considering whether that has occurred in circumstances where it is alleged as in the current case that something has been overlooked or given or too little weight, it must be shown that the ‘available inference in the opposite sense to that chosen… is so preponderant in the opinion of the appellate court that the… decision is wrong’.”[16]
[16] Citing Raulston, [19].
On the evidence presented, so it is submitted, such an error has not been demonstrated.
Further, the respondent submits that the radiological investigation of 1 April 2015, on which Ms Le places significant emphasis, does not establish any causal connection between the alleged condition and the employment.
With reference to Ms Le’s Paric submission, the respondent submits that, when having regard to the state of Dr Lam’s clinical notes and the inconsistencies in Ms Le’s evidence, the Arbitrator was left with essentially no evidence other than the opinion of Dr Dias provided many years after the alleged injury.
The Arbitrator’s findings that there was no complaint in respect of the right shoulder until mid-2014 was correct. Accordingly, the Arbitrator’s conclusion that Dr Dias based his opinion on an entirely different version of events is correct and certainly has not offended the principle in Paric.
The respondent further submits:
“It is not the case that the Arbitrator had well established facts to rely upon, as the evidence was simply far from ideal. Accordingly, his findings are not at odds with the evidence and he has therefore not imposed too exacting a standard. The facts do not correspond at all with the report of Dr Dias.”

DISCUSSION

This is an appeal pursuant to s 352 of the 1998 Act. Section 352(5) of the 1998 Act provides:
“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.”
Ms Le’s submission with respect to the basis on which an appeal under s 352 of the 1998 Act proceeds is fundamentally flawed. Ms Le submits, relying on Raulston:
“[T]here is an onus in any appeal that lies upon the appellant to show that the findings upon which the learned Arbitrator's decision depends were not open to him. That is, that they were not fairly supported by the evidence, and/or the evidence, properly evaluated, demonstrates a contrary view which ought oust the view taken by the Arbitrator.” (emphasis in original)
In Raulston, Deputy President Roche said:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)    Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)    It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’”[17]
[17] Raulston, [19].
Ms Le’s submissions to a large extent seek to re-ventilate the merits as argued before the Arbitrator. As discussed above, an appeal under s 352 of the 1998 Act is not a review on the merits. Following the amendments introduced by the Workers Compensation Amendment Act 2010, an appeal under s 352 of the 1998 Act is restricted to the identification and correction of legal, factual or discretionary error.
To the limited extent that error is alleged I will attempt to deal with those submissions.
Firstly, I do not accept Ms Le’s submission that the Arbitrator erred by failing to treat the history obtained by Dr Dias as providing a “fair climate” for the acceptance of his opinion.[18]
[18] Paric.
The High Court in Paric set out the principles in respect of expert reports. The High Court said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence: Ramsay v Watson[1961] HCA 65; (1961) 108 CLR 642. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[19]
[19] Paric, [9].
I accept that the facts assumed by the expert do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of any value”. The weight to be attached to expert opinion is subject to the extent of the correlation between proven facts and the assumptions on which the expert medical opinion is based.[20] An expert must identify the facts and reasoning process which they assert justify the opinion expressed, sufficient to enable the tribunal of fact to evaluate the opinion expressed.[21]
[20] Industries Limited v Bell[2010] NSWCA 162; 8 DDCR 111, [19].
[21] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock).
For the following reasons, the Arbitrator was correct to place little or no weight on Dr Dias’ opinion.
Ms Le properly conceded that there is a tension between the history given to Dr Dias of continuing pain in the right shoulder (among other conditions) since 2009 and the complaints documented by Dr Lam commencing on 30 June 2014, which alleged that the right shoulder pain was due to overuse.
In her statement of August 2016, Ms Le states that from the first half of 2009 she felt pain gradually develop over time in her left wrist and that that pain continued to increase and she began to feel additional pain in the right shoulder, amongst other places. She describes this pain feeling “like muscle fatigue” and she “did not mention it to [her] doctor”. However, when the pain became very intense on or about 10 August 2009 she reported it to her supervisor. Although, she only mentioned complaint of the left wrist and left elbow as “they were the most intense in pain”.
There is no contemporaneous evidence to support Ms Le’s complaint of ongoing pain in the right shoulder from 2009. The only evidence to support the complaint from 2009 onwards appears in her statement of August 2016, approximately seven years after 2009, and the history recorded in Dr Dias’ report of December 2014, approximately five years after 2009.
Accepting that in 2014 Ms Le commenced to complain of pain in the right shoulder as a result of overuse, the Arbitrator correctly noted Dr Lam’s clinical notes provide little utility in identifying the cause of the alleged overuse of the right shoulder. Dr Lam’s clinical notes reveal that the first recorded complaint of Ms Le’s right shoulder problems appears on 30 June 2014. That clinical entry records: “[r]ight shoulder pain due to overuse”. Following that clinical entry, that same entry appears in precisely the same terms on at least 40 subsequent occasions. That evidence of right shoulder pain due to overuse does not support complaint in the right shoulder from mid-2009. Nor does it explain the casual connection between employment and right shoulder pain.
In any event, it was open to the Arbitrator to conclude, as he did, that it was difficult to extract anything logical or coherent from the clinical notes. With all due respect to Dr Lam, his clinical notes give the appearance of a cut and paste exercise rather than a genuine attempt to accurately record symptoms as they occurred from time to time.
It follows that, as the Arbitrator found, the history recorded by Dr Dias of Ms Le suffering continuing pain in her right shoulder since 2009 was clearly wrong. That history is not borne out by the records of her treating doctors from the period 2009 to 2014 and for the reasons discussed above Mr Le’s evidence concerning the timing of the onset of symptoms in the right shoulder was found to be unreliable.[22]
[22] Reasons, [41].

Dr Dias’ diagnosis of injury to Ms Le’s right shoulder as “…both consequential to the left injury and also arose out of the course of her employment as a process worker with [the respondent] was based on the “chronicity” of symptoms, persisting in the shoulder over a period of five years between 2009 and 2014. The history of “chronicity” in the right shoulder was critical to Dr Dias’ conclusion on the causal connection between the condition of the right shoulder either being due to her employment duties or arising as a consequence of her accepted injuries. However, as I have said there is nothing in the medical evidence to support a history of any complaints of the right shoulder, much less chronic complaints, during the period in question. Moreover, as discussed, there are no contemporaneous records to corroborate any such complaints by Ms Le until June 2014, when Dr Lam recorded complaint concerning the right shoulder.
Therefore, given the unreliability of Ms Le’s account of her symptoms and the lack of any corroborative evidence to support Dr Dias’ history of chronic complaints since 2009, the Arbitrator was correct to find that the history relied on by Dr Dias was so fundamentally different to the facts proven that it did not provide a fair climate for acceptance of his opinion. The factual history of a “chronicity” of symptoms in the right shoulder was fundamentally wrong. That history was so fundamental to the acceptance of Dr Dias’ opinion that it cannot be accepted that the requirements for the acceptance of his expert report have been established.[23] It follows that, the Arbitrator’s rejection of Dr Dias’ opinion on that basis did not disclose error.
[23] Hancock; Paric.
It follows that the submission that the Arbitrator imposed an “unnecessarily strict test requiring exact correspondence between the history in Dr Dias’ medical report and what was proved in evidence for the validity of his opinion” cannot be accepted. Although the Arbitrator made reference to Makita, he rejected Dr Dias’ opinion not because of a “counsel of perfection”, as Ms Le submits, but because the history relied on was wrong. For the reasons discussed above, the Arbitrator’s reasons for not accepting Dr Dias’ evidence disclosed no error.
I do not accept Ms Le’s submission that “from a logical and common sense approach … it is consistent that [she] would favour the left arm.” Ms Le relies on the decision in Kooragang. However, how that authority assists Ms Le’s submissions was not developed. I infer that the submission is that one should accept that flowing the surgery to the left wrist, Ms Le favoured that limb which resulted in the alleged overuse of the right shoulder. The difficulty with such a submission is that there is no evidence to support it.
In Kooragang, Kirby P (as his Honour then was) held:
“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.”[24]
[24] Koorangang, 463G.
The Commission is “… required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”[25]
[25] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, [2] (per Allsop P (McColl JA agreeing)).
Critically, Ms Le did not state that the condition of her right shoulder was due to overuse or overuse following the left wrist surgery. Her evidence is that she injured her right shoulder because of the nature and conditions of her employment in 2009 and has had continuing symptoms ever since. Her statement makes no reference to overuse at all and makes no attempt to demonstrate any causal connection between the accepted work injuries and the condition of her right shoulder. On the contrary, it appears that for a considerable time, and it is difficult to work out from precisely when, Ms Le had been performing light duties, avoiding any excessive use of either arm. Moreover, her evidence is that she did not participate in any domestic activities but relied principally on her husband to perform those functions.
Whilst Ms Le submits that certain “tasks” gave rise to the overuse condition, this submission was not further developed. Importantly, no attempt was made to identify what those tasks were, the duration of the “tasks” or any evidence concerning the effect the performance of such tasks had on her.
When Ms Le was examined by Dr Dias, she again asserted that whilst she was independent in activities of daily living, she does not do any of the domestic duties around the house, adding that her husband does all of the cooking and cleaning. Ms Le maintained that she could do some very light gardening such as picking fruit, but her husband does the heavier gardening duties. He also accompanies her to the grocery shop and assists by lifting the shopping and transferring it from the car to the house. That evidence was not consistent with an allegation of overuse, and if anything suggested that Ms Le went to lengths to ensure she did not overuse her upper limbs.
Dr Dias was well aware that Ms Le had undergone a left wrist arthroscopy in January 2014. He based his opinion on the chronicity and severity of symptoms over the previous five years. His opinion was not based on an overuse of the right shoulder as a consequence of injury to the upper left extremity, following surgery to the left wrist in 2014, as Ms Le now contends. It follows, therefore, that the Arbitrator was correct to conclude that Dr Dias’s opinion either in relation to the overuse allegation or his opinion regarding an injury to the right shoulder arising out of or in the course of her employment with the respondent, lacked any probative force.
Ms Le’s submission that the evidence of the right shoulder ultrasound of 1 April 2015 supports the allegation of work injury to the shoulders cannot be accepted. The radiologist who performed the ultrasound on the right shoulder noted slight heterogenous appearance at the subscapularis tendon and supraspinatus tendon, which was noted to be suggestive of tendinosis, in a test conducted six years after the alleged onset of pain in the right shoulder in mid-2009.
The Arbitrator made no findings with respect to the significance of the ultrasound findings. That was unsurprising since the Arbitrator was not taken to it during the arbitration proceedings, and no submissions were made as to its significance. Even if the Arbitrator erred by not referring to that piece of evidence, it is of no moment because there is no expert medical evidence concerning its significance and certainly no evidence to suggest the condition found on ultrasound is causally related to Ms Le’s employment. It is for these reasons that the ultrasound of 1 April 2015 lacks significant probative value.
For the reasons discussed above, the Arbitrator’s findings that there was insufficient evidence to support a finding that Ms Le suffered an injury to her right shoulder arising out of or in the course of her employment with the respondent did not disclose error. Further, the Arbitrator’s finding that the condition in Ms Le’s right shoulder was not consequent upon the accepted injury to the left upper wrist was consistent with the evidence presented and no error has been demonstrated. It follows that the Arbitrator’s findings do not demonstrate error of the kind discussed in Whiteley Muir and Raulston.
For the above reasons, the appeal fails.

DECISION

The Arbitrator’s Certificate of Determination dated 20 December 2017 is confirmed.

Judge Keating

President

18 April 2018