Leslie v Goodman Fielder Pty Ltd - [2013] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Leslie v Goodman Fielder Pty Ltd [2013] NSWWCCPD 13
APPELLANT:		Maria Leslie
RESPONDENT:		Goodman Fielder Pty Ltd
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-11279/11
ARBITRATOR:	Ms Deborah Moore
DATE OF ARBITRATOR’S DECISION:		30 July 2012
DATE OF APPEAL DECISION:		15 March 2013
SUBJECT MATTER OF DECISION:		Causal nexus between employment and injury; onus of proof; requirement to establish relevant error on appeal, and evaluation of expert medical evidence.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Steve Masselos & Co Solicitors
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		1. The findings and orders made as found in the Senior Arbitrator’s Certificate of Determination dated 30 July 2012 are confirmed subject to substitution of order three as follows: 3. Award for the applicant in the sum of $5,500 in respect of four per cent whole person impairment resulting from the condition of bilateral epicondylitis pursuant to s 66 of the Workers Compensation Act 1987. 2. No order as to costs of this appeal.

BACKGROUND

The appellant, Mrs Maria Leslie, commenced employment with Goodman Fielder Pty Ltd, also known as Quality Bakers Australia Pty Ltd, (the respondent) in 1999 as a part-time packer. Some years thereafter her employment became permanent following which she worked between 32 and 40 hours per week. The manual tasks carried out by Mrs Leslie involved the use of her upper extremities in repetitive tasks. In 2006 she began to experience arm pain. Mrs Leslie consulted her general practitioner Dr Varatharajan, but did not report her condition to her employer.
In 2005 Mrs Leslie received injury to her back in the course of her work. That injury, which is not presently relevant, was reported to the respondent and compensation benefits were paid.
Mrs Leslie continued working and experienced increasing pain in both her arms. She reported her condition to the respondent and returned to Dr Varatharajan in May 2008. On 1 August 2008 Mrs Leslie’s position was made redundant. The evidence is that she was then unable to perform her duties by reason of pain in her arms. Other than a short period of employment performing clerical duties in 2010, Mrs Leslie has since remained off work.
It seems that an allegation of injury to the back and both arms was made by Mrs Leslie in proceedings commenced in the Commission in 2010 (matter 1560/10). That fact is relevant given the circumstance that the proceedings were settled by agreement on 4 June 2010 and there was, by consent, remitter by the Arbitrator to the Registrar for referral to an Approved Medical Specialist (AMS) in the following terms:
“I remit this file for the Registrar to organise an assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist of the degree of permanent impairment, resulting from the Applicant’s injury to her upper extremities of bi-lateral epicondylitis on 21 May 2008.”
A Medical Assessment Certificate (MAC) was issued by Dr John Harrison, orthopaedic surgeon, on 28 July 2010 following that referral. Dr Harrison diagnosed lateral epicondylitis present in each upper limb and stated that Mrs Leslie demonstrated symptoms and signs of mild nerve compression syndromes in each upper extremity. It was noted that surgery was proposed concerning Mrs Leslie’s bilateral nerve compression syndromes and thus there was a prospect that her symptoms related to epicondylitis would be moderated. In the circumstances, Dr Harrison considered that it was not appropriate at that time to assess whole person impairment.
A claim against the respondent in respect of lump sum compensation was made on behalf of Mrs Leslie by her solicitors on 22 September 2011. Reliance was placed by her upon the opinion of Dr Endrey-Walder, general and trauma surgeon, found in his reports, dated 22 August 2011 and 13 September 2011 in support of her claim in respect of eight per cent whole person impairment.
Dr Endrey-Walder, in his report of 13 September 2011, diagnosed bilateral epicondylitis, bilateral ulnar nerve neuritis, mild triggering of the ring finger of both hands and carpal tunnel syndrome. The respondent, it seems, accepted that the condition of bilateral epicondylitis was causally related to Mrs Leslie’s work conditions, but liability concerning causation of the other conditions was denied.
The dispute concerning entitlement to lump sum compensation and medical expenses came before the Commission following the filing of an Application to Resolve a Dispute (the Application). Part 4 of that Application included the following matters:
“Injury Description:
Both arms, being both elbows, both wrists and both hands in respect of bilateral epicondylitis, bilateral ulnar neuritis, bilateral carpal tunnel, ring finger triggering both hands.
Describe how injury occurred:
The nature and conditions of the Applicant’s employment with the Respondent, including the packing of bread involving pushing heavily laden trolleys and placing bread into crates according to order, have caused, accelerated, exacerbated or aggravated injury/disease as referred to above.”
The application came before Senior Arbitrator Deborah Moore on 17 February 2012, at which time a telephone conference was conducted. An order was then made, by consent, that there be a referral for an assessment of a general medical dispute by an AMS.
The matter was again considered by Dr John Harrison, who, on 21 March 2012, issued a MAC. The terms of that Certificate are addressed below.
The Application came before the Senior Arbitrator for conciliation and arbitration on 29 June 2012, at which time both parties were represented by counsel. The matter proceeded to hearing and the Senior Arbitrator reserved her decision. A Certificate of Determination, accompanied by a Statement of Reasons (Reasons) was issued on 30 July 2012, in which the following findings and orders were made:
“The Commission determines:
1.       The applicant sustained an injury being bilateral epicondylitis arising out of or in the course of her employment with the respondent, the deemed date of injury being 1 August 2008.
2.       There is insufficient evidence to conclude that the conditions of bilateral ulnar nerve dysfunction and bilateral carpal tunnel syndrome are causally related to her employment with the respondent.
3.       The permanent impairment dispute in relation to both upper extremities (bilateral epicondylitis only) resulting from injury on 1 August 2008 is remitted to the Registrar for further referral to Dr John Harrison, Approved Medical Specialist, for assessment of whole person impairment.
4.       The respondent is to pay the applicant’s section 60 expenses incurred in connection with the condition of bilateral epicondylitis only.
5.       The respondent is to pay the applicant’s costs as agreed or assessed. Certify the matter as complex with a 20 per cent increase in the costs otherwise available to both parties.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

Mrs Leslie has filed amended grounds of appeal and amended written submissions. Those amendments followed a direction given by the President, Keating DCJ, during the course of a telephone conference conducted on 29 October 2012. That direction was made given his Honour’s view that the submissions earlier made failed to identify error alleged to have been made. It must be said that the amended “grounds” and accompanying submissions lack precision, are repetitive and tend to confuse. The “grounds” in many respects take the form of argument and fail to plainly identify the alleged error or errors. Notwithstanding those shortcomings, it is reasonably clear that complaint is made that the Arbitrator has erred in the following respects:
(a)failing to apply the “correct test for causation of injury”;
(b)in rejecting the “weight of medical opinion” evidence, which “confirmed [Mrs Leslie’s] conditions of ‘bilateral ulnar neuritis (dysfunction)’ and ‘carpal tunnel syndrome’ were causally related to her work”;
(c)in “substituting her own opinion over (sic) specialist knowledge”;
(d)in failing to find that the onset of symptoms of ulnar nerve and carpal tunnel syndrome occurred “from 1.8.2008”;
(e)in determining that the appellant had failed to discharge the onus of proving that the conditions of bilateral nerve dysfunction and carpal tunnel syndrome were related to employment, and
(f)in misdirecting herself as to the state of the evidence.
In summarising the issues immediately above I have attempted to extract from the “grounds”, as they appear in the amended documents, errors of which complaint is made. I have refrained from attempting to summarise the arguments or submissions which are included by Mrs Leslie. Those matters are addressed below.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 as found in the provisions of ss 352(3) and 352(4) of 1998 Act have been met.

Preliminary matter

During the course of the earlier mentioned telephone conference conducted by the President, exchanges between his Honour and the parties’ representatives addressed the findings of Dr Harrison, in his MAC dated 21 March 2012. It was agreed that the terms of that Certificate were confusing and that there was some ambiguity concerning the approach taken when relevant assessments were made. In the circumstances, the matter was again referred to Dr Harrison for his assessment of whole person impairment arising only from the condition of bilateral lateral epicondylitis.
A further MAC was issued by Dr Harrison on 7 February 2013, in which certification was given concerning a four per cent whole person impairment related to that condition. Having regard to that assessment and Dr Harrison’s earlier assessment in March 2012 of there being a 12 per cent whole person impairment as a result of all the conditions then diagnosed, the quantum, of which Mrs Leslie complains on this appeal she has been denied, may be quantified as eight per cent whole person impairment.

THE ARBITRAL PROCEEDINGS

The hearing before the Arbitrator was recorded, a transcript (T) has been produced and a copy has been made available to the parties.
The matters in dispute were recorded by the Arbitrator as follows (at T1):
“The Respondent and the Applicant agree that the Applicant suffers bilateral epicondylitis… The Applicant has also been diagnosed with other conditions in her arms and there is a dispute by the Respondent as to whether those conditions can be causally related to the injury (sic).”
The documentary evidence tendered before the Arbitrator is noted at [15] of Reasons. No oral evidence was adduced at the hearing.
There was a written statement by Mrs Leslie dated 16 September 2011 tendered on her behalf. That statement, as observed by the Arbitrator, made reference to “previous statements”; however no such evidence was tendered in her case. Mrs Leslie described the repetitive manual duties performed by her and stated that in 2006 she began to “feel pain in [her] arms. This pain was in both [her] elbows and went all the way down [her] lower arms and into both [her] hands”. Confusingly, Mrs Leslie then stated that: “I think it was sometime in 2006 when I started to notice pain in my right arm as I was [working]”. Dr Varatharajan was consulted on 17 August 2006.
Mrs Leslie stated that she continued to work and that:
“The pain and restrictions in both my arms finally became such that I had to consult my G.P, Dr Varatharajan, at the Living Waters Medical Centre on 24 May 2008. I told him that both my arms were painful and throbbing and I told him about the pain going from my elbows into my lower arms and also in my wrists and hands.”
Mrs Leslie described in that statement the medical treatment she received following report of her injury to her employer and her cessation of work by reason of painful symptoms in August 2008. She was referred to Dr Jeffrey S Hughes, orthopaedic surgeon, who referred her, in 2010, to Dr Richard Lawson, surgeon, of Sydney Hand Surgery Associates. Mrs Leslie had earlier had MRI studies of her elbows conducted at the request of Dr Hughes. In December 2010 Dr Lawson conducted surgery to Mrs Leslie’s left elbow and carpal tunnel. In February 2011 she underwent right carpal tunnel and right elbow surgery again at the hand of Dr Lawson.
Mrs Leslie had tendered a number of medical reports from Dr Hughes, Dr Lawson and Dr Endrey-Walder. I note there were four reports from Dr Endrey-Walder which related to examinations conducted in 2008 and 2011. Also in evidence were reports concerning investigations and tests conducted at the request of her treating doctors and the clinical records of Dr Varatharajan’s practice.
There are two MACs issued by Dr Harrison, dated 19 July 2010 and 21 March 2012 that were tendered. There is a further MAC, dated 7 February 2013, issued by Dr Harrison pursuant to the direction of the President, Keating DCJ, which is before the Commission.
A copy of a work Incident Report dated 22 May 2008 was tendered. That document records that Mrs Leslie “felt sudden pain in both arms to palms of hands when lifting a crate of bread onto bench”, and further that as a consequence she experienced “severe pain in both arms from elbows to palms of hands”.
The respondent tendered a report of Dr Robert Breit, orthopaedic surgeon, dated 4 February 2010 who had been qualified by the insurer to examine Mrs Leslie. Also tendered was the evidence of Dr Con Kafetaris, injury management consultant, dated 29 December 2009. A large number of WorkCover NSW medical certificates issued by Mrs Leslie’s general practitioner were also in evidence. A workers compensation claim form completed by Mrs Leslie dated 24 September 2008 was tendered. The “injury details” included the description of the “incident” as “while putting bread out by lifting crates, pulling dollies and extending my arms I felt sharp pain in both my elbow (sic) all the way down my wrist”. The description of injury was “Tennis elbow on both arms (epicondilities (sic))”.
The balance of the documentary evidence tendered by the parties has no direct relevance to the matters raised on this appeal and need not be recorded. The contents of the expert medical evidence and the records relied upon by the parties are addressed in the course of discussion below.

Submissions before the Arbitrator

The submissions put by counsel for each party were summarised by the Arbitrator at [72] and [73] of Reasons as follows:
“72. Counsel for the respondent submitted that only the condition of bilateral epicondylitis was related to the applicant’s employment for the following reasons:
(a)All the entries in Dr Varatharajan’s notes, from August 2006, refer only to the condition of epicondylitis;
(b)Dr Hoe in August 2008 considered that the applicant suffered from “typical features of lateral epicondylitis”;
(c)Dr Hughes in December 2008 spoke of “bilateral epicondylitis and possibly even bilateral radial tunnel syndrome…” the latter condition now established to be very similar to epicondylitis;
(d)Dr Endrey-Walder in December 2008 similarly considered that the applicant suffered from bilateral epicondylitis only;
(e)Dr Kafetaris in December 2009 acknowledged the separate conditions but considered that the epicondylitis was work related and that there was a question mark as to her other conditions;
(f)Dr Breit’s supplementary report of 7 May 2010 clarified the position: epicondylitis is remote anatomically and a different pathological entity to ulnar nerve dysfunction and carpal tunnel syndrome;
(g)In February 2010 the applicant presented to Dr Lawson with multiple symptoms, much the same as Dr Harrison described in his initial MAC of 28 July 2010. At the time she saw Dr Lawson, the applicant had been off work for about 2.5 years. He noted that and also that Dr Hughes has “been treating her for some time for lateral epicondylitis and she has had a good response to growth factor injections, although she still has some slight symptoms related to her lateral epicondyle”;
(h)There was never any suggestion in 2008 of medial problems, only lateral. Dr Endrey-Walder in particular in his December 2008 report spoke only of lateral epicondylitis;
(i)Dr Hughes erroneously said that he had previously noted “complaints of bilateral medial elbow pain” when he had not;
(j)Dr Harrison’s opinions were based on a wrong history as to the onset and nature of the applicant’s symptoms, and
(k)The totality of the evidence points to the onset of other conditions well after the applicant ceased work with the respondent.
73. Counsel for the applicant submitted that all conditions were related because:

(b)From the outset the applicant complained of symptoms from her elbows to her forearms, wrists and hands, including her palms;
(c)Those complaints are set out in various documents such as her statement, doctors’ reports and the vocational report;
(d)It was only when nerve conduction studies were carried out in November 2009 that the other conditions were identified;
(e)Dr Hughes treated the applicant over a considerable period of time and supported the connection with her employment;
(f)Dr Harrison saw her twice and took a detailed and thorough history, and had access to all the material, unlike some other doctors, and supported the work connection, and
(g)No weight should be attached to Dr Breit’s report since he considered that the applicant was exaggerating her symptoms which no other doctor noted.”

The Arbitrator’s decision

The Arbitrator (at [12] of Reasons) recorded that the “only issue in dispute was whether [Mrs Leslie’s] ulnar nerve dysfunction and carpal tunnel syndrome was causally related to her employment with the respondent. It was not disputed that she suffered from these conditions and had received extensive treatment for them”.
A careful summary of the evidence, including that of Mrs Leslie, relevant documentation and that of the expert medical witnesses was made between [15] and [66] of Reasons. Also summarised were those arguments advanced by each party as noted above at [30].
At the outset, the Arbitrator observed that the task before her was “difficult”. That part of Dr Breit’s evidence concerning Mrs Leslie’s “apparent exaggerated presentation” was found to be inconsistent with all the other medical evidence and was rejected by the Arbitrator. The Arbitrator proceeded to express her acceptance of Dr Breit’s opinion that there was no relationship “between lateral epicondylitis and carpal tunnel syndrome and ulnar nerve dysfunction”.

Having accepted that aspect of Dr Breit’s evidence the Arbitrator stated the following (at [76] of Reasons):
“But that of course is not really the issue. Is there sufficient evidence to conclude that these conditions [carpal tunnel syndrome and ulnar nerve dysfunction] resulted from the applicant’s employment with the respondent?”
The Arbitrator had earlier, at [17] of her Reasons, noted that, having regard to the nature of the dispute, counsel for the parties had consented to reference being made to a document not in evidence, namely an article by David M. Klein, MD – Kennedy-White Orthopaedic Centre, which addressed the subject of “radial tunnel syndrome”, the condition to which Dr Hughes had made reference in his evidence.
The Arbitrator proceeded to consider the detail of the expert medical evidence and found that Mrs Leslie had failed to persuade her that there was sufficient evidence to enable a conclusion that the conditions of carpal tunnel syndrome and ulnar nerve dysfunction were causally related to her employment with the respondent (at [87] of Reasons).
Findings were then made in terms as they appear at [1] and [2] of the Certificate of Determination as recorded at [11] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The first “ground” of appeal and submissions in support raise a number of complaints which I will attempt to summarise. It is put that, having regard to the analysis of the evidence noted in those submissions, error in the respects identified have been committed.
The first complaint raised by Mrs Leslie is the suggested failure of the Arbitrator to properly apply the “tests” concerning causation as expounded in the decisions of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) and Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen). It is put that a proper consideration of the expert evidence supports a finding that the conditions of “bilateral ulnar neuritis (dysfunction)” and “carpal tunnel syndrome”, which I will refer to hereafter as “the impugned conditions”, were “caused by the work or were consequential conditions caused by the work injuries to the upper limbs”.
It is suggested that error was committed given the finding that the impugned conditions had an “apparent” onset some 16 months after Mrs Leslie ceased work with the respondent. It is put that the evidence “support an onset of [the impugned conditions] as early as 2008 or that the work was causative of those conditions”.
Further complaint is made that Mrs Leslie was not cross-examined concerning her stated history of “onset of complaints” and that no weight should be given to the submission that her evidence on that subject “ought not be accepted”.
Before addressing these matters of complaint and the evidence relied upon, it is important to consider the Arbitrator’s findings which seem to be the subject of criticism. Those findings, it is submitted, are to be found at [71], [87] and [89] of her Reasons where it was stated:
“71. As it transpired however, the question was not whether the applicant’s employment with the respondent was capable of causing her ‘spectrum of pathologies’ but whether in fact it did, given the apparent onset of bilateral ulnar nerve and carpal tunnel symptoms in about November 2009, some 16 months after she had ceased work with the respondent, and given that she had remained unemployed except for a short period of employment as a receptionist in about March 2010.
…
87. In all the circumstances, I am not persuaded that there is sufficient evidence for me to conclude that the applicant’s ulnar nerve dysfunction and carpal tunnel syndrome can be said to causally relate to her employment with the respondent. I should note that neither party took issue with Dr Harrison’s recent findings that any triggering of the fingers had subsided, and was thus not included in any assessment.
…
89. The applicant has failed to discharge that onus, the various treating and qualified medical practitioners having failed to address the critical issue, namely, in circumstances where the applicant had not worked for some 16 months for the respondent and had not undertaken any other significant employment how it could be said that the conditions of bilateral ulnar nerve dysfunction and carpal tunnel syndrome, clearly unrelated to the condition of bilateral epicondylitis, were related to her employment.”
It may be seen that at [71] of Reasons the Arbitrator has raised the question of causation of the impugned conditions and stated that the onset of those conditions apparently occurred in November 2009, some 16 months after Mrs Leslie had ceased work for the respondent.
The Arbitrator’s reasoning is clearly demonstrated at [89] of Reasons where it is stated that the medical experts had failed to address the “critical issue” concerning time of onset of the impugned conditions, which were unrelated to the condition of epicondylitis, when views were expressed as to relationship to employment. Mrs Leslie correctly identifies evidence that suggests that relevant symptoms were experienced prior to ceasing work. That evidence, it is argued, appears in Mrs Leslie’s statement; the incident form completed in May 2008 and the histories recorded by Dr Hughes, the physiotherapist Ms Leaver and Dr Varatharajan’s notes (as deciphered by counsel). Reliance is also placed upon histories as recorded by Dr Breit, Dr Lawson, Dr Endrey-Walder; Dr Harrison; and the diagnosis of Dr Shaun Watson, physician, who conducted nerve conduction studies in November 2009.
The difficulty with the argument as advanced is, firstly, that the Arbitrator has accepted that Mrs Leslie complained of symptoms from her elbows to her hands and had reported pain in forearms, wrists and hands to Dr Frederick Hoe, orthopaedic surgeon, and Dr Hughes. Such symptoms were “not inconsistent with a diagnosis of bilateral epicondylitis” (Reasons at [77]).
The second difficulty raised by Mrs Leslie’s argument is that the symptoms which became relevant to the diagnosis of the impugned conditions were first recorded by Dr Hughes and Dr Lawson at the end of 2009 and in early 2010. Up to that time, as found by the Arbitrator, the only diagnosis was that of bilateral lateral epicondylitis. It is significant, as the Arbitrator has noted, that Dr Lawson recorded in February 2010 complaint of pain on the medial aspect of the elbow “for some time”. That practitioner expressed no opinion concerning causation of the “symptoms of median and ulnar nerve compression” which, in his view, required treatment by way of left carpal tunnel release and a right cubital tunnel release, probable transposition and right open carpal tunnel release.
The amended submissions relating to this first ground do not include any statement of principle to be found in Kooragang and/or Nguyen which is said to have been overlooked or misapplied by the Arbitrator. As is made clear by Kirby P in Kooragang, such question concerning causation is one of fact and each case is to be determined on its own facts by “a commonsense evaluation of the causal chain”. In my opinion, the Arbitrator has conducted such an evaluation.
The evidence supporting causal nexus between the work and the impugned conditions may be found, as submitted, in the reports of Dr Hughes, Dr Endrey-Walder and Dr Harrison. That evidence has been rejected by the Arbitrator and the reasons for that rejection have been stated by her.
The evidence of the treating practitioner Dr Hughes, which in the Arbitrator’s view should be given some weight, is addressed at [83] and [84] of Reasons where it was stated:
“Some weight should be attached to the evidence of Dr Hughes as the applicant’s treating doctor for some considerable period. He also clearly accepted the different pathologies and referred the applicant to Dr Lawson for treatment of these additional conditions. Although he claimed in his report of 18 March 2010 that: ‘When I go back through my notes I actually recorded on the 14/8/2009 in my written notes complaints of bilateral medial elbow pain and soon after she underwent an MRI on the 7/9/2009 which clearly showed neuritis in the left elbow. These findings would be a clear explanation for her ongoing medial elbow pain…’ his report of that same date refers only to the ‘lateral epicondyle.’ His report referring to the findings on the MRI of 7 September 2009 says nothing about ‘neuritis’ in the left elbow nor is there mention of medial elbow pain. That MRI report is not in evidence. Dr Hughes (sic) report also suggests that the MRI of 7 September 2009 was of the right elbow, not the left. That was carried out on 19 August 2009.

In addition, Dr Hughes does not explain why he said in his report of 18 March 2010 that he ‘would support her in this being a work related problem’ in circumstances where the applicant had not worked for the respondent since 1 August 2008. Dr Endrey-Walder similarly in his report of 13 September 2011 does not explain why he considered the applicant’s employment substantially contributed to her various conditions.”
The evidence of Dr Endrey-Walder was summarised by the Arbitrator between [43] and [49] of Reasons. That summary makes clear that there was a stark difference between the symptoms reported by Mrs Leslie in 2008 and those recorded during re-examination in 2011. Diagnosis varied in the later report in that there was an inclusion of the impugned conditions. As noted by the Arbitrator, Dr Endrey-Walder has given no explanation for his view that Mrs Leslie’s employment substantially contributed to her various conditions.
The history as recorded by Dr Harrison, commencing with that found in his first MAC dated 28 July 2010, was the subject of the Arbitrator’s criticism. The view was expressed that, in the absence of any evidence that “during 2008 to November 2009 [Mrs Leslie] suffered from symptoms in the ulnar two fingers and ulnar side of the hand”, such history recorded by Dr Harrison was, in her view, incorrect. It is clear that Dr Harrison’s opinion concerning causation was rejected given that it was founded upon an incorrect history.
I am of the opinion that the rejection of the evidence as to causation found in the reports of Dr Hughes, Dr Endrey-Walder and Dr Harrison was, in each instance, open to the Arbitrator. Her reasons for such rejection have been plainly stated and such reasons follow an exhaustive analysis of the evidence. No error is demonstrated. This appeal is not a review and I reject the submission that the evidence of Dr Hughes, Dr Endrey-Walder and Dr Harrison concerning causation should be “accepted” on this appeal.
Leaving aside the fact that the Commission’s leave is required to conduct cross-examination, the absence of such questioning of Mrs Leslie is, in my view, incapable of founding an argument that relevant error has been made. As earlier noted (at [47] above) the Arbitrator has accepted that forearm, wrist and hand symptoms had been reported by Mrs Leslie to Dr Hoe and Dr Hughes. As to the date of onset of symptoms referrable to the impugned conditions, it is clear that the Arbitrator has examined and relied upon the contemporaneous records and recorded histories for guidance when reaching her conclusions. Mrs Leslie’s representatives have at all relevant times been aware of the respondent’s denial concerning causation of those conditions and it cannot be suggested that there was any requirement to put questions to her concerning the matters recorded in the evidence which had been available since filing of the Application and the respondent’s Reply (see discussion in Drar v EDS Business Services Pty Ltd [2010] NSWWCCPD 63 per Roche DP at [88] and [89]).
Ground two appears to repeat much that was argued under the first ground. The error suggested appears to relate to the Arbitrator’s finding that the evidence was not sufficient to establish “injury to have occurred as claimed”. It is asserted that there was a “‘fair climate’ of factual evidence” concerning matters relevant to that issue. In support of that assertion the submissions again exhaustively summarise the expert medical and associated evidence as to history of symptoms and causation.
I have earlier, with respect to ground one, rejected Mrs Leslie’s arguments raised concerning causation founded upon that evidence. Nothing put in relation to the present ground may be distinguished from those earlier arguments and I reiterate my conclusion that no relevant error has been made out.
Ground three concerns an argument in the following terms:
“It was an error for the Arbitrator to assume as she did that the medical examiners did not pay proper and sufficient consideration to the facts as they knew them and to resort to her own opinion in place of the expert medical opinion without cross examination of those medical experts or some contrary expert medical evidence tending to discredit those opinions or provide rational [sic] for acceptance of contrary opinion once an analysis of all the evidence was made. In particular it can be seen that Dr Harrison the AMS was fully informed of the lay and expert evidence when providing his opinion.”
I reject the suggestion that the Arbitrator “assumed” that the medical experts “did not pay proper and sufficient consideration to the facts as they knew them”. I have earlier recorded the Arbitrator’s manner of evaluating that evidence and I reiterate that no error has been made out.
The suggestion that the Arbitrator had substituted “her own opinion in place of the expert medical opinion” in the absence of cross-examination “or some contrary expert medical evidence” must be rejected. Again, I have earlier attempted to summarise the Arbitrator’s approach concerning evaluation of that evidence. Her finding as to there being no sufficient evidence of causal nexus does not constitute a substitution of her opinion for that of the witnesses. Her finding relates to the relevant burden of proof which, as found, had not been discharged.
Ground four read with both supporting submissions appears to suggest factual error in failing to find that symptoms referable to the impugned conditions occurred “as at the time [Mrs Leslie] was working” and thereafter from “time to time”. The earlier submissions put in relation to grounds one and two are relied upon. Those submissions have been addressed earlier and I reiterate that no relevant error has been made out.
Ground five again challenges the Arbitrator’s findings concerning Mrs Leslie’s failure to discharge the burden upon her concerning proof of causal nexus. Submissions in this context pay some attention to the matters as stated in Kooragang which I have attempted to address in relation to ground one above.
Reliance is also placed upon the decision of the High Court in Tubemakers Australia Ltd v Fernandez (1976) 50 ALJR 720, in particular that stated by Mason JA at 724 and the decision in X & Y (by her tutor X) v Pal (1991) 23 NSWLR 26 concerning the proper approach to expert medical opinion and the drawing of inferences from such evidence together with surrounding facts.
The question before the Arbitrator was one of fact and I have found no error on her part given her acknowledgment of all relevant evidence, her evaluation of that evidence, her consideration of the factual issues, particularly the history of onset of relevant symptoms, and the availability, having regard to that evidence, of the conclusion reached. Again, this is not a review of the Arbitrator’s decision. No relevant error has been established.
The sixth and last ground relied upon suggests error of the Arbitrator by “misdirecting herself” when concluding that the impugned conditions were not caused by work. That “misdirection” is said to concern treatment by her of the evidence leading to her conclusion that there was no evidence “that during 2008 through to November 2009 [Mrs Leslie] suffered from symptoms in the ulnar two fingers and ulnar side of the hand” as found at [86] of Reasons.
Submissions draw attention to the detail found in histories recorded by Dr Breit in February 2010 and Dr Harrison in March 2012. That evidence presents two difficulties for Mrs Leslie. First, there can be no doubt that the Arbitrator was concerned to identify relevant contemporary complaint of symptoms whereas Dr Breit’s record was made in 2010. Secondly, so far as Dr Harrison’s evidence is concerned, that which was recorded in 2012 is a repetition of that recorded in 2010 which was found by the Arbitrator to be incorrect (refer [53] above). The suggested error occasioned by misdirection is not made out.
It may be seen that each of the grounds raised on this appeal have been rejected thus the findings and orders of the Arbitrator should be confirmed. Appropriate orders appear below. Having regard to the fact that Dr Harrison has issued a MAC concerning whole person impairment resulting from the condition of epicondylitis, it is appropriate that an order be made on this appeal concerning Mrs Leslie’s entitlement to s 66 of the Workers Compensation Act 1987.
The difficulty encountered by the Arbitrator and identified by her in the course of her Reasons came about by reason of the manner in which the expert medical evidence was presented and that circumstance led her to make those comments which appear at [88] of her Reasons. I consider it appropriate to record those matters in this determination of the appeal. It was stated:
“Whether it is a case of misdiagnosis, or insufficient care by the various medical practitioners as to the initial diagnosis and treatment, or whether such conditions could spontaneously occur on a background of bilateral lateral epicondylitis is impossible for me to say, nor is it my task to speculate on such matters. The onus is on the applicant to prove her case. As Ipp J said in Flounders v Millar [2007] NSWCA 238:
‘If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail…The rules governing causation…are…the test of commonsense, with the onus of proof being at all times on the plaintiff.’”
Having regard to those observations made by the Arbitrator, I consider it appropriate to draw attention again to that which was stated by Tobias JA in Brambles Industries Ltd v Bell (2010) 8 DDCR 111 at [26] and [27] as follows:
“The result is that the judicial officer hearing the case is unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified. The costs of obtaining a supplementary medical report will pale into insignificance against the costs of litigation resulting from a failure to carefully consider the relevant evidence in a timely and efficient manner.
The present case should serve as a lesson and, hopefully, a wake-up call to those who practice in the personal injury area, to ensure that if no oral medical evidence is to be called and reliance is to [be] placed solely upon medical reports, that those reports are clear in the opinions expressed and that the reasoning supporting those opinions is complete. That would avoid appeals of the nature of that in the present case with consequent saving of costs to the parties and court resources.”

DECISION

The findings and orders made as found in the Senior Arbitrator’s Certificate of Determination dated 30 July 2012 are confirmed subject to substitution of order three as follows:
3. Award for the applicant in the sum of $5,500 in respect of four per cent whole person impairment resulting from the condition of bilateral epicondylitis pursuant to s 66 of the Workers Compensation Act 1987.

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Deputy President
15 March 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE