Livaja v Concept 2001 Pty Limited - [2010] NSWWCCPD 126

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Livaja v Concept 2001 Pty Limited [2010] NSWWCCPD 126
APPELLANT:		Sandro Livaja
RESPONDENT:		Concept 2001 Pty Limited
INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-3367/10
ARBITRATOR:	Ms Jennifer Scott
DATE OF ARBITRATOR’S DECISION:		6 September 2010
DATE OF APPEAL DECISION:		8 December 2010
SUBJECT MATTER OF DECISION:		Proof of injury; sufficiency of reasons for Arbitrator’s determination
PRESIDENTIAL MEMBER:		Deputy President O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Thomas Booler & Co Lawyers
Respondent:	Moray & Agnew Solicitors
ORDERS MADE ON APPEAL:		Paragraph (1) of the Certificate of Determination dated 6 September 2010 is revoked and the following award is made in its place: “(1) Award in favour of the respondent in respect of the applicant’s allegation of right shoulder injury.” Paragraphs (2), (3) and (4) of the Certificate of Determination dated 6 September 2010 are confirmed. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

Sandro Livaja, who is 21 years of age, commenced employment in August 2005 with Concept 2001 Pty Limited (the respondent) as a junior process worker. On 11 May 2006, whilst in the course of that employment, he was injured during an altercation with his supervisor. The circumstances of that altercation are, to an extent, controversial however it is common ground that Mr Livaja received a laceration to his right hand when a sharp instrument held by the supervisor came into contact with his hand.

Mr Livaja made a claim for compensation benefits, and weekly compensation and medical expenses were paid up until mid 2007 when liability was declined on behalf of the respondent by its insurer. Written notice of the insurer’s decision to decline ongoing liability was given pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in correspondence dated 17 May 2007. Mr Livaja had, in April 2007, presented a medical certificate issued by his general practitioner which contained particulars of injuries to the right arm and right shoulder. The s 74 notice contained a statement of reasons for termination of payments and a specific denial that Mr Livaja had received injury to his right arm or shoulder.

A dispute arose concerning Mr Livaja’s entitlement to compensation benefits and an Application to Resolve a Dispute was filed on his behalf in February 2009. Those proceedings, being matter number 1059 of 2009, claimed lump sums in respect of alleged permanent impairment and pain and suffering. Orders were made by consent in those proceedings which made provision for remitter of the matter to the Registrar for referral to two Approved Medical Specialists (AMS), an orthopaedic surgeon and a psychiatrist, for assessment of any whole person impairment suffered in respect of injury to Mr Livaja’s right hand and assessment of Mr Livaja’s capacity for work resulting from an alleged psychiatric injury. Medical Assessment Certificates (MAC) were subsequently issued by each AMS, the detail of which is addressed below. It appears that a lump sum payment was made, by consent, following issue of the certificate relevant to the laceration injury received by Mr Livaja.

A further dispute arose concerning Mr Livaja’s entitlement to compensation benefits and a second Application to Resolve a Dispute was filed on his behalf on 28 April 2010. That application sought orders with respect to weekly compensation. The application came before an Arbitrator for conciliation/arbitration on 1 September 2010. The matter proceeded to hearing and the Arbitrator delivered her determination orally on that day. A Certificate of Determination, which bears the date 6 September 2010, issued from the Commission.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 6 September 2010 records the Arbitrator’s orders as follows:

“The determination of the Commission in this matter is as follows:
1. Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987 for his Right Upper Extremity (shoulder)
2. That the Respondent pay the Applicant weekly compensation under section 40 of the Workers Compensation Act 1987 at the rate of :
a. $65.00 from 25/06/2007 to 20/8/07
b. $40.00 from 21/08/2007 to date and continuing

3. No order as to the Applicant’s claim for medical expenses under section 60 of the Workers Compensation Act 1987.
4. The Respondent pay the Applicant’s costs as agreed or assessed.”

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. That transcript records submissions put by counsel on behalf of each party and the Arbitrator’s reasons for her determination.
An application seeking leave to appeal against the decision of the Arbitrator was filed with the Commission on 28 September 2010.

PRELIMINARY MATTERS

It must be said at the outset that the documentation prepared on behalf of Mr Livaja in support of this application seeking leave to appeal has been poorly prepared and the submissions provided lack clarity.
The first matter to be noted is that at [2.8] of submissions it is argued that the Arbitrator erred in finding that Mr Livaja’s employment was not a substantial contributing factor to the injury on 11 May 2006, and reference is there made to an annexure marked “A”. There is no annexure “A” to that document. I am informed that members of the Commission’s staff brought the absence of that annexure to the attention of Mr Marcel Joukhador, Mr Livaja’s solicitor. Communication with that firm, commencing on 30 September 2010, was by way of several phone calls, an email and a letter directed to the solicitors from the Registry. It appears that those communications requesting a copy of the annexure were ignored by Mr Livaja’s solicitor. On 30 November 2010 a teleconference was appointed by the Commission with a view to ensuring that all documentation relevant to the appeal was available. It was only on that day that Mr Livaja’s solicitor advised the Commission that in fact there was no annexure “A”. The lack of courtesy extended to the Commission’s staff is to be deplored. The requirements of professional courtesy, independent of any duty that a solicitor may have to the Commission and his client, demand that there be a prompt response to enquiries made by those members of staff of the Commission who are charged with the responsibility of administering the appeal process.
The submissions provided on this appeal state, at [2.6], that the appeal is brought “against the whole of the decision of the Arbitrator in so far as she found that [Mr Livaja’s] employment was not a substantial contributing factor to that [sic] injury”.
The submissions proceed to identify Mr Livaja’s complaint as being only with respect to the Arbitrator’s entry of “an award for the respondent for injury to the right shoulder”. The relief sought in the application is to be found at 2.9.1 where an order is sought “that the determination of the arbitrator be set aside”.
The absence of precision and the apparent absence of any real care taken by those representing Mr Livaja in the presentation of argument is again a matter which is to be deplored. It will be apparent in the course of the determination of this appeal that nowhere in the reasons as stated by the Arbitrator was any attention given to the provisions of s 9A of the Workers Compensation Act 1987, which relate to the requirement that the employment be a substantial contributing factor to injury. For that reason alone, much of what is put on behalf of Mr Livaja, in seeking to overturn the finding made by the Arbitrator concerning his alleged shoulder injury, is unfounded.
The respondent’s solicitors have brought to the Commission’s notice that the terms of the award noted in [1] of the Certificate of Determination do not reflect the findings and orders made by the Arbitrator in the course of her oral decision. It is correctly stated that there had been no application made by Mr Livaja in respect of lump sum compensation pursuant to s 66. In those circumstances it is necessary on this appeal to consider the need to correct the determination as presently recorded in that certificate.

ON THE PAPERS REVIEW

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 transcript records the parties’ submissions, and all documentary evidence is available. There was no oral evidence presented on hearing. Notwithstanding the earlier noted deficiencies found in the submissions, and having regard to Practice Directions Numbers 1 and 6 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.

LEAVE

There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator:
(a) erred in her finding that Mr Livaja did not receive injury to his right shoulder as alleged, and
(b) failed to provide sufficient reasons for her determination concerning the alleged injury to the right shoulder.

THE ARBITRAL PROCEEDINGS

The documentary evidence which was before the Arbitrator is noted at T2 and comprised all those documents attached to the Application to Resolve a Dispute and all those documents attached to the respondent’s Reply which had been annexed to an Application to Admit Late Documents filed on 14 July 2010.
The application was, by consent, amended by order of the Arbitrator before the commencement of the hearing. The precise terms of the amendment are not entirely clear having regard to the matters recorded in the transcript, however it is clear that, following amendment, the only allegation of injury concerned injury to the right hand, injury to the right shoulder together with an allegation of anxiety and depression.
Counsel appearing on behalf of the respondent fairly and properly conceded that Mr Livaja had received an injury to his right hand and had suffered anxiety and depression. It was made clear by counsel that, whilst injury was conceded, the respondent denied that such injuries had resulted in any incapacity. It was also made clear that the respondent disputed the occurrence of injury to Mr Livaja’s right shoulder.

Mr Livaja’s evidence

There are two written statements made by Mr Livaja in evidence, the first dated 2 April 2008 and the second dated 19 August 2008. In the first of those statements Mr Livaja states that he is a single man residing with his parents and had been born in Croatia in 1989. He came to this country with his family in 1998. He completed his schooling to year 10 level following which he attempted an apprenticeship, which he discontinued, thereafter he obtained work with the respondent in August 2005. His position was full-time and he performed overtime when requested. Mr Livaja describes his duties which involved, loading and lidding of bottles and containers, packing and cleaning.
It is stated that on 11 May 2006, as Mr Livaja was returning to his work station after a lunch break, he was approached by his supervisor, a man named Troy, who accused him of stealing a drink. Mr Livaja denied that allegation and continued towards his work station. Troy then picked up a knife used to cut cardboard. It is stated that Troy then tried to stab Mr Livaja. Mr Livaja raised his hands to protect himself but the knife held by Troy struck the palm of his right hand cutting it and causing stinging and pain. Mr Livaja was in shock.
Mr Livaja was taken to the Ingleburn Medical Centre where a doctor stitched the wound and gave Mr Livaja a tetanus injection. The doctor issued a medical certificate stating that he was fit for suitable duties from 11 May 2006 to 19 May 2006. The doctor is identified on that certificate as being Dr Tuan Tran. Mr Livaja stopped work and remained absent whilst he rested at home. The stitches were removed after a period of approximately two weeks following which Mr Livaja consulted his regular general practitioner, Dr Pukanic, of Bankstown. It is stated that whilst he rested at home he “began to notice pain, pins and needles and numbness going up my arm to the shoulder whenever I used the hand and arm to do anything strenuous or lift anything heavy with it”. It is stated that Mr Livaja stopped using his right hand and arm “as much as possible”. As time went by his right arm and shoulder became “progressively weaker”.

A Report of Injury form seeking compensation benefits was lodged by Mr Livaja on 9 June 2006. Liability was accepted by the respondent’s insurer.
Dr Pukanic referred Mr Livaja to Mr Draginutovich, a psychologist, and to a hand surgeon, Dr Kapila. Mr Livaja had experienced difficulty sleeping with flashbacks concerning the assault and had dreams about being stabbed. He states that he lost confidence and worried about being stabbed or attacked again. Dr Kapila referred Mr Livaja to a physiotherapist and to Dr Curtin for a second opinion concerning proposed surgical treatment.
Mr Livaja was examined on behalf of the insurer by Dr Conolly. Dr Conolly did not “approve the surgery” that had been suggested by Dr Curtin.
In October 2006 Mr Livaja was referred to Dr Teychenne who carried out nerve conduction tests.
The insurer appointed a rehabilitation provider who attempted to arrange suitable work for Mr Livaja. Mr Livaja did not feel that he could return to the respondent because of what had happened. He obtained part time work (three days per week) being work experience in a hair dressing salon. Mr Livaja experienced difficulty with that work because it involved sweeping and cleaning up which required gripping and repetitive movement causing a problem with his hand and arm. That work experience concluded after four weeks.
Mr Livaja commenced a four week work trial with Mitre 10 in mid April 2007 doing light shop/stock assistant duties. There was a five kilogram lifting limit. The work was repetitive and required constant gripping, lifting and reaching with his right hand. Mr Livaja experienced difficulty doing that work. Those duties aggravated his hand and arm conditions causing them to become “more painful”. Mr Livaja tried to favour his right hand and arm however his hand became worse following which Dr Pukanic put Mr Livaja off work. He rested at home for a week and then returned to the work trial on reduced hours. That work came to an end in early May 2007. Mr Livaja remained unemployed.
Earlier in 2007 Mr Livaja had been referred to Dr Quinn, a plastic surgeon. In May 2007 Mr Livaja was examined on behalf of the insurer by Dr Rowe.
Mr Livaja states that, following the examination by Dr Rowe, he received correspondence from the respondent’s insurer denying further liability for weekly payments and medical expenses. Those weekly payments ceased on 25 June 2007. Mr Livaja continued looking for work and obtained several short term casual labouring and process work positions through Workforce Quick Pty Ltd, a labour hire company, in late 2007. The positions held by him were with ACI Operations Pty Limited, Don Watson Transport Pty Ltd, Sell and Parker, a car sales company, and Bush’s Pet Food. Each of those positions involved manual work, much of which was repetitive. He experienced difficulties gripping and reaching with his right arm and the tasks performed made his symptoms worse. He states he has not worked since December 2007.
Mr Livaja describes his ongoing problems as including weakness and pain in the right hand; difficulty gripping; numbness and loss of sensation in the right arm ring and little fingers; occasional swelling and sweating; right arm and shoulder has become increasingly painful since the injury; difficulty with activities above shoulder height or placing arm behind his back; continuing psychological difficulties being troubling thoughts of the assault and flashbacks and nightmares; memory and concentration are effected and he is “a lot more forgetful now”.
Mr Livaja believes that he could not return to any form of work with the respondent given the history of his assault whilst working. He believes he could work in some part-time light work where he did not have to use his right arm much, grip with his right hand, or lift anything heavy.
The statement dated 19 August 2008 deals with factual issues raised in evidence presented on behalf of the respondent. Those matters have no direct relevance to the issues raised on appeal.
A large number of medical reports from practitioners who have treated Mr Livaja are in evidence. There are also reports from a treating psychologist and hand therapist. Among the medical reports are two from Dr M H Ellis dated 9 September 2006 and 14 May 2007. Dr Ellis had been qualified to provide an opinion for the purposes of the litigation. Relevant detail found in the medical evidence is addressed below.
A MAC issued by Dr Julian Parmegiani dated 21 October 2009 is in evidence. It was certified by that practitioner that Mr Livaja presented with a chronic post traumatic stress disorder. Dr Parmegiani certified that Mr Livaja was able to work full-time as a real estate trainee (a history had been taken as recorded in that certificate that Mr Livaja planned to pursue a career in real estate). The opinion was expressed that Mr Livaja would find it difficult to work “in an occupation that involves significant interpersonal conflict such as the security industry”. The opinion was also expressed that it was reasonable that Mr Livaja consulted a psychologist for up to 18 sessions of cognitive behaviour therapy. Dr Parmegiani expressed the view that he expected Mr Livaja’s anxiety to continue to improve over the next two to three years and that possibly it would resolve altogether in due course.
A MAC dated 26 November 2009 provided by Dr William Cumming, orthopaedic surgeon, is in evidence. Dr Cumming noted the presence of a scar which was placed obliquely in the right palm in the area, 1-2cm proximal to the cleft between middle and ring fingers. The scar was noted as being 1cm in length. Dr Cumming, following physical examination, also noted some limitation of movement of Mr Livaja’s right shoulder, however he noted “that this is not to be regarded as part of the examination”. An assessment of three per cent whole person impairment resulting from injury to the right upper extremity was certified.
A number of medical certificates issued by Dr Pukanic which are dated between 12 May 2006 and 16 April 2007 are in evidence. Those certificates include a diagnosis which is noted as being laceration to right hand, anxiety and depression. A certificate dated 20 April 2007 issued by Dr Pukanic includes certification involving injury to the right arm and forearm as well as the right shoulder. A number of certificates issued by Dr Pukanic thereafter up to 16 June 2007, each contain a similar diagnosis involving injury to the right shoulder as well as injury to the hand, arm and forearm.

A large volume of documents in addition to the matters briefly summarised above were relied on by Mr Livaja. Those documents include details of employment and earnings since the date of injury and other material which is not of direct relevance to the issues raised on this appeal. Reference is made to that evidence, where relevant below.

Respondent’s evidence

The respondent tendered a large number of medical reports, some of which are copies of those reports relied upon by Mr Livaja. Included amongst that evidence are reports from Dr Isaacs and Dr Rowe and one from Mr Haralambous, psychologist, each of whom were qualified on behalf of the respondent to provide evidence for the purposes of the litigation. Relevant detail of these reports is addressed hereunder.
The balance of the documentary evidence relied upon by the respondent comprises a factual investigation report prepared by Worksite Investigations which included a number of statements as well as a copy of a police report. Those documents are not directly relevant to the issues raised on the appeal. A copy of the claim form presented by Mr Livaja dated 9 June 2006 is in evidence.
The patient medical history records of the Ingleburn Medical Centre relating to treatment of Mr Livaja are in evidence. There is also a document that appears to be an extract of the hand written clinical notes of Dr Pukanic. That document, which is difficult to read, appears to relate to a number of attendances between 4 May 2007 and 16 July 2007.
The balance of the documents attached to the respondent’s Reply are not directly relevant to the matters raised for determination on this appeal.

Mr Livaja’s submissions

Counsel appearing on behalf of Mr Livaja addressed the question of alleged injury to the right shoulder between T7 and T10. Counsel drew attention to the evidence found in Mr Livaja’s statement made on 2 April 2008. The evidence, it was put, supports a conclusion that there had been a shoulder injury received by Mr Livaja in the subject injury. The evidence is that, following the injury, Mr Livaja stopped using his right hand and arm as much as possible and states “as time went on my right arm and shoulder became progressively weaker”. Counsel also drew attention to Mr Livaja’s evidence concerning the difficulties he encountered whilst working at Mitre 10. The evidence concerning a flare-up of problems with the right arm and shoulder whilst working there was noted in submissions, as was the evidence of Dr Pukanic. It was noted that Dr Pukanic took a history of difficulty performing duties on 18 April 2007, causing pain in the right shoulder.
Counsel drew attention to the history noted by Dr Ellis in his report dated 14 May 2007 where it is recorded that Mr Livaja “hit a pallet when he threw back his right arm defensively as he was attacked and experienced pain in the right shoulder”. Reliance was also placed upon the matters recorded by Dr Pukanic concerning injury received to the right shoulder and other parts of the right upper extremity “as the result of an injury sustained during a work trial with another company”. Counsel acknowledged, in response to an observation by the Arbitrator, that there appear to be a number of different histories recorded concerning injury to the right shoulder. Notwithstanding the matters which appear in the evidence concerning the onset of shoulder pain, counsel put that Mr Livaja should be accepted concerning his allegation of right shoulder injury having occurred when he was stabbed. It was put that the history of pain “coming on after a couple of days while he was at home” was “consistent with the fact that he had suffered a fairly traumatic incident”.
Counsel proceeded to address the allegation of psychological injury and quantification of Mr Livaja’s entitlement to weekly compensation.

The respondent’s submissions

Counsel appearing on behalf of the respondent made reference to the evidence of Mr Livaja as found in his statements and acknowledged that there was evidence that pain was experienced by him up his arm to the shoulder “whenever [Mr Livaja] used the hand and arms [sic] to do anything strenuous or lift anything heavy with it”. Counsel emphasised that there was “no time frame” concerning the onset of those symptoms.
Counsel drew the Arbitrator’s attention to the compensation claim form completed by Mr Livaja on 9 June 2006. The injury was identified in that form as being to the right hand as well as there being a reference to “right upper arm”. The point is made in submissions that there is no reference made to any injury to the shoulder.
Counsel proceeded to analyse the history as recorded by the various treating doctors and the psychologist. The thrust of the argument advanced by counsel was that the histories as recorded do not support an inference that Mr Livaja had suffered a shoulder injury at the time he received the stab wound to his right hand. Counsel also sought to emphasise that the earlier report of Dr Ellis did not contain reference to any shoulder related pain or disability resulting from the relevant injury.
Counsel proceeded to address the issue of quantum of entitlement to weekly compensation. Those submissions are not relevant to the matters raised for determination on this appeal and need not be recorded.

Arbitrator’s determination

The Arbitrator, when delivering her oral determination, stated that “the first issue to consider is whether [Mr Livaja] sustained an injury to his right shoulder arising out of or in the course of his employment with the respondent”. The Arbitrator proceeded to identify that evidence before her which she described as “histories given” concerning such injury. Brief reference was given to the evidence of Dr Ellis, Mr Livaja, Dr Teychenne and Dr Pukanic.
The Arbitrator stated that she did “not accept Dr Ellis’ history”. The finding was made that Dr Ellis’s history was “inconsistent with everything else”.
The Arbitrator stated that she had “difficulty accepting [Mr Livaja’s] history taken some time later”. The observation was made that his evidence “is not supported by anything else”.
The Arbitrator noted that Dr Teychenne, whilst referring to Mr Livaja’s shoulder ,“dismisses a shoulder injury”.
The Arbitrator made a brief observation that “we do have a shoulder injury that arises out of a separate work place”. Whilst not explicitly stated, it seems to be that the Arbitrator was referring to the evidence of Dr Pukanic concerning the onset of shoulder pain experienced by Mr Livaja during his work trial.
The Arbitrator (at T29) is recorded as stating:
“I do not accept that [Mr Livaja] incurred an injury arising out of or in the course of his employment with this respondent, Concept 21 Pty Limited, and I make an award for the respondent in relation to the shoulder”.
The Arbitrator proceeded to consider the question as to whether Mr Livaja had suffered any incapacity since termination of weekly compensation. Certain findings were made which led to the making of the orders concerning weekly payments which are noted at [5] above. Those matters addressed by the Arbitrator are not directly relevant to the issues raised on this appeal and need not be summarised.

SUBMISSIONS, DISCUSSION AND FINDINGS

The submissions put on behalf of Mr Livaja in support of this appeal were prepared, as noted therein, at a time when there was not a transcript of the Arbitrator’s determination available. I note that subsequently a transcript of the proceedings and of the Arbitrator’s determination was made available to Mr Livaja’s solicitors, however no steps were taken to file any supplementary submissions following receipt of that material.
The only complaint raised on this appeal is that the Arbitrator erred concerning the entry of an award in favour of the respondent with respect to the allegation of injury to Mr Livaja’s right shoulder. It is put that there are three “grounds” upon which such finding is challenged. They are (as found at [2.7] of submissions):
“2.7.1 The arbitrator erred in finding that the appellant’s employment was not a substantial contributing factor to the injury on 11 May 2006.
2.7.2That the arbitrator erred in finding an award for the right shoulder on the basis of the late onset of pain.
2.7.3The arbitrator failed to give proper reasons.”

The first “ground” raised on behalf of Mr Livaja suggests that the Arbitrator was in error in finding that his employment was not a substantial contributing factor to the injury “on 11 May 2006”. The only injury which was disputed by the respondent was that alleged to have occurred to his right shoulder. As I have earlier noted the respondent, properly, conceded the occurrence of injury to the hand and resultant psychological injury.
I have earlier summarised those submissions advanced on behalf of the respondent concerning, as argued, Mr Livaja’s failure to prove such an injury. No argument was advanced founded upon the provisions of s 9A. The Arbitrator, as one may reasonably expect, made no reference to that provision in the course of her Reasons. In the circumstances the suggested ground of appeal must fail.
The second “ground” suggests error on the part of the Arbitrator in entering an award against Mr Livaja with respect to the allegation of right shoulder injury. The error which is suggested is that the Arbitrator’s ultimate conclusion was founded upon “late onset of pain”. This matter is not expanded or developed in any respect.
The Arbitrator examined the evidence concerning the occurrence of injury and gave particular attention to the evidence of Mr Livaja and the histories as recorded by various medical practitioners whose evidence was before the Commission. Nowhere in the Arbitrator’s reasons is there reference made by her to “late onset of pain” in Mr Livaja’s shoulder. It is reasonably clear that the Arbitrator’s approach to the dispute involved examination of the evidence to determine whether there was any complaint, reasonably contemporaneous with the occurrence of injury, by Mr Livaja of that specific injury, namely injury to the right shoulder. The Arbitrator’s reasons suggest that, not only was she not satisfied that there had been any such contemporaneous complaint of shoulder injury, but also that there was conflict to be found among the various histories as recorded by the medical practitioners whose evidence was before her. In the circumstances, the “ground” suggesting error involving a finding concerning “late onset of pain” must be rejected.
The third and final “ground” relied upon by Mr Livaja suggests a failure on the part of the Arbitrator to give proper reasons for her finding that he had not received injury to his right shoulder. The Arbitrator dealt with this question at the outset of her reasons. Such was a proper approach given that the dispute as conducted before her ultimately required assessment of the existence or otherwise of incapacity resulting from the alleged injuries since termination of weekly payments. Her reasons, as earlier noted, focussed upon the histories and findings of Dr Ellis, Dr Teychenne and Dr Pukanic as well as the evidence of Mr Livaja. Those reasons expressed for rejecting Mr Livaja’s allegation of injury to his shoulder were very briefly stated.
There can be no doubt that there is an obligation upon an Arbitrator to give reasons for her decision and such reasons should be sufficient to enable the party to exercise his right of appeal: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA at 270.
As was stated by Meagher JA in Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443: “Reasons need not necessarily be lengthy or elaborate”. His Honour proceeded to express the view that there are three fundamental elements of a statement of reasons which may be useful to consider. Briefly summarised they are: a judge should refer to relevant evidence; material findings of fact and any conclusions or ultimate findings of fact reached should be set out, and thirdly, those reasons “should be understandable and preferably logical as well” (at 443-444).
The reasons expressed by the Arbitrator in the present matter lack precision, and the brevity of those reasons, and her manner of expression, preclude a clear understanding of her evaluation of the evidence, her reliance or otherwise upon it and the relevance of that evidence to her ultimate conclusion. In the circumstances, I consider it appropriate to review the evidence as a whole with a view to determining the correctness or otherwise of her ultimate conclusion concerning the allegation of injury to Mr Livaja’s right shoulder.
It is clear from the evidence that treatment in respect of the alleged right shoulder injury became necessary, in the view of his treating general practitioner, Dr Pukanic, no earlier than April 2007. The report of injury form completed by Mr Livaja and dated 9 June 2006 describes the manner in which the injury occurred as follows, “I was going back to work at [sic] the [sic] our brake [sic] and Troy attacked me with a knife and stabbed me in the right hand.” In response to the question in that form, “What injury did you suffer?” the words “right hand” appear. In response to the question “What parts of the body were affected?” the words “right upper arm” appear. I note that the question as posed in the form had, by way of example, the following examples “upper arm, lower back”. The Arbitrator at (T29.8), acknowledges the reference in the claim form to “upper arm”. It is also noted by her that the claim form does “not refer to shoulder”.
The first medical practitioner consulted by Mr Livaja following the injury was Dr Tran, general practitioner. Dr Tran has provided a report dated 8 August 2006 which is addressed to the insurer and forms part of the evidence relied upon by the respondent. Dr Tran was consulted on the day of the injury at which time he recorded a history of injury to the hand whilst using a rusty knife at work. Mr Livaja returned to that practice on 19 May 2006 in the company of an uncle. On that occasion Mr Livaja corrected the history that was given on the first occasion and Dr Tran recorded that Mr Livaja “was having a fight with a co-worker and he was stabbed in the right palm by his co-worker”. There is no mention in this report, nor in the clinical notes produced by Dr Tran’s practice, of injury to the right shoulder.
Dr Pukanic provided a report dated 19 September 2006 which records that Mr Livaja was first seen in relation to the consequences of the injury on 12 May 2006. The complaints as recorded by Dr Pukanic concerned “pain in the right hand, severe anxiety, insomnia and depression”. There is no notation in that report of any complaint concerning Mr Livaja’s right shoulder.
Dr Pukanic’s report of 15 September 2008 includes the following history:
“On 20 April 2007 [Mr Livaja] worked for two hours when he had to cease his work due to severe pain in the right hand, wrist and forearm. He also developed pain in the right shoulder. When the patient was examined there was a marked tenderness over the right shoulder, movements were painful and restricted, particularly rotation and elevation. The right arm, forearm, wrist and hand were tender on palpitation.”
The history noted immediately above is not expressly acknowledged by the Arbitrator in the course of her reasons however mention is made of Dr Pukanic’s “notes” where that practitioner records the occurrence on 20 April 2007 of an “incident accident date 18.4.07 whilst pushing trolley on [sic] work”.
There are four reports of Dr H B Kapila, surgeon, in evidence. Dr Kapila treated Mr Livaja following referral by Dr Pukanic. Those reports, which relate to consultations in August and Septmber 2006, contain no notation of any suggested injury to Mr Livaja’s right shoulder. In the first of those reports dated 1 August 2006 Dr Kapila did note that “according to him when he pulled his hand away he hit the back of his head as well”.
Dr Pukanic arranged for Mr Livaja to be assessed and treated by Mr Steven Dragutinovich, psychologist. The first consultation date was 31 July 2006. Mr Dragutinovich records a detailed history in his report dated 7 August 2006 which is in evidence. That history records the stabbing injury to the right hand and, later, that Mr Livaja “continues to experience tolerable, pressure contingent pain in the right knuckles (not previously suffered), attributable to hitting a pallet when he threw back his right arm defensively as Troy attacked”. There is no record in that practitioner’s report of any complaint of pain or disability in the right shoulder.
Dr Kapila arranged for Mr Livaja to be assessed by Ms Cathy Merry, hand therapist. That assessment was conducted on 11 August 2006 and there is a report bearing that date in evidence before the Commission. Ms Merry recorded a knife injury occurring on 11 May 2006 to the palm of his right hand and noted the following symptoms:
“[Mr Livaja] reported decreased sensation of his ring finger and ulnar side of middle finger which he noted at the time of injury and did not feel had really changed since. He also reported pain in his palm and up into his arm. He felt a loss of power in his hand and pain on gripping”.
Mr Livaja relies upon two reports of Dr W Bruce Conolly, surgeon, dated 29 September 2006 which are addressed to the insurer. Dr Conolly examined Mr Livaja on behalf of the insurer on 27 September 2006. One report contains no detailed history and appears to be a commentary on documents which had been forwarded to Dr Conolly for comment. The second report records that Mr Livaja was “stabbed by another person in his right dominant palm”. There is no notation of any injury to the shoulder.
Mr Livaja relied upon three reports from Dr Paul F Teychenne to whom he had been referred by Dr Pukanic. It appears that Mr Livaja first attended Dr Teychenne in October 2006. The following history of symptoms is noted by Dr Teychenne:
“Three weeks after the injury he noted weakness in the grip of the right hand and weakness when lifting with the right lower arm. He did not complain of any symptoms in the left arm. The pain extends into the whole of the right hand and up the right lower arm. The pain is persistent. He did not however have any obvious vasomotor changes”.
In his report dated 16 October 2006 Dr Teychenne recorded the following matters:
“He also developed pain extending from the right 3^rd and 4^th fingers and if severe, this pain may extend across the palm of the right hand and up the right lower arm to the right elbow and even up to the right shoulder. These episodes of pain could last up to 30 minutes. He notes weakness in the grip of the right hand”.
Dr Teychenne conducted EMG muscle sampling. The findings were consistent with a mild bilateral C5/C6 radiculopathy. Further EMG muscle sampling was conducted by Dr Teychenne, the findings of which were “consistent with involvement of the right ulnar nerve, probably the digital motor branches of the right ulnar nerve as well as the sensory branches of the right ulnar nerve supplying the digital nerves into the right 3^rd and 4^th fingers”. It was Dr Teychenne’s conclusion that Mr Livaja had had partial damage to these nerves and may have developed a small neuroma under the scar. The view is expressed that Mr Livaja “does not however have any symptoms consistent with causalgia and has not developed any symptoms or signs of a complex regional pain syndrome”. The findings I have summarised are to be found in Dr Teychenne’s report of 19 October 2006.
Mr Livaja was assessed by Anup Mangipudi, hand therapist, by arrangement through the insurer. That assessment apparently occurred in January 2007 following which treatment in the form of ultrasound, soft tissue work, massage, heat and TENS application was given. A thermoskin splint was provided to Mr Livaja and he was instructed concerning hand exercises. There is no notation in the report concerning this assessment dated 13 January 2007 of any injury to, or symptoms experienced in, Mr Livaja’s right shoulder.

Dr Pukanic referred Mr Livaja to Dr Michael J Quinn, plastic and reconstructive surgeon, for a second opinion. Dr Quinn was consulted in March 2007. The complaints recorded by Dr Quinn as reported to him were “of occasional pain in the scar and pain in the upper arm”. There is no notation in Dr Quinn’s report of 30 March 2007 of any symptoms experienced in the right shoulder.
Mr Livaja has been examined by Dr M H Ellis, surgeon, on two occasions, firstly in November 2006 and thereafter in May 2007. Dr Ellis was qualified to provide reports for the purposes of this litigation. There are two reports of that practitioner in evidence, the first dated 9 November 2006 and the other dated 14 May 2007.
On the first occasion Mr Livaja was examined by Dr Ellis a history of the right hand injury was recorded as was detail concerning the development of anxiety, fear, depression and insomnia. Dr Ellis examined Mr Livaja and his findings concerning the condition of the right hand are recorded in his report. No history of any injury to the arm or shoulder is recorded in that report.
Dr Ellis’s second report dated 14 May 2007 includes the following record of history as then reported:
“The supervisor struck at him with a knife used to cut the tape around the boxes, and defending himself the knife penetrated the palm of his right hand narrowly missing his neck. He hit a pallet when he threw back his right arm defensively as he was attacked and experienced pain in the right shoulder.”
Dr Ellis conducted a physical examination and noted with respect to the right shoulder that “joint movements were restricted, abduction and flexion 90 degrees, internal rotation half the normal range, external rotation three quarters of the normal range”. It was Dr Ellis’s view that “there is evidence of a traumatic capsulitis affecting his right shoulder”.
The MAC issued by Dr Cumming referred to at [38] above includes a notation of history as given by Mr Livaja being that he was stabbed in the right palm. No history of right shoulder injury is recorded. When a physical examination was conducted by that practitioner, Mr Livaja “demonstrated some limitation of movement of his right shoulder in comparison to the left of a global nature”. As earlier noted (at [38] above) a statement is made by Dr Cumming that “this is not to be regarded as part of the examination”. The assessment of whole person impairment made by Dr Cumming is limited to those findings in relation to the injury to Mr Livaja’s right hand.
The examination of Mr Livaja conducted by Dr Parmegiani noted earlier at [37] above included a very detailed history of the occurrence of injury and its consequences. Nowhere in the report which accompanies Dr Parmegiani’s MAC is there any recorded complaint in relation to injury to the right shoulder or ongoing difficulties with that joint.
The expert medical evidence relied upon by the respondent included a copy of a report by Dr Tinku Kooner concerning an ultrasound of the right shoulder conducted by that practitioner on 9 September 2008. The ultrasound findings were within normal limits and the report notes that no sonographic evidence of a rotator cuff tear or tendonitis was observed. The report also includes the findings of an x-ray of the right shoulder in the following terms:
“The glenohumeral joint outlines normally. No evidence of a fracture, dislocation or subluxation is demonstrated”.
The report proceeded to note that “there is normal distance between the humeral head and the acromion and there is no significant subacromial osteophyte”. It was also reported that the AC joint outlines normally.
The respondent relied upon a report prepared by Dr R Rowe, orthopaedic surgeon, dated 2 May 2007. The history recorded by Dr Rowe included a statement made by Mr Livaja that restriction of movement in his right shoulder had been present “since the day of the work incident”. Dr Rowe’s examination of that joint is recorded as follows:
“Examination of the right shoulder revealed that it lacked movement so that flexion was limited to 120° and abduction to 130°. With the arm at 90° of abduction he had external rotation 80° and internal rotation 30°. There was also restricted rotation of the arm in the neutral position. There was obvious and definite muscle wasting of the supra and infraspinatus muscles at the back of the shoulder. These clinical findings strongly suggest that Mr Livaja has a frozen shoulder. The only difficulty is reconciling this pathology with his comment that his shoulder has had restricted movement since the day of the work incident.”
Concerning the relationship of that diagnosed condition to the subject injury, Dr Rowe stated:
“if such restricted movement was present from the day of the stabbing, it clearly is unrelated to the stabbing incident or to any assault. Frozen shoulder does not begin in such a way. There is no convincing evidence to relate his frozen shoulder to the nature of his employment, nor the physical dispute that occurred on 11 May 2006, nor can it be considered secondary to a small hand laceration”.
A report dated 2 May 2007 prepared by Dr I J Isaacs, plastic surgeon, was relied upon by the respondent. Dr Isaacs had been qualified on behalf of the insurer to provide a report for the purposes of the litigation. A history of the injury is recorded by that practitioner which included detail of injury to the right hand when Mr Livaja was stabbed. There is no history recorded concerning any injury to the right shoulder nor is there any complaint of right shoulder disability recorded in that report. It is to be noted that Dr Isaacs conducted an examination of “all proximal joints of the right upper extremity” as well as the neck. No abnormality or complaint of pain or discomfort is recorded by Dr Isaacs. Forearm circumference measurements were consistent with normal right hand dominance.
A report dated 11 September 2006 of Dr Barbara Schiff, accredited injury management consultant, was tendered in evidence by the respondent. The insurer had arranged an examination by Dr Schiff which took place on that date. The report includes a very detailed notation of Dr Schiff’s observations on physical examination of Mr Livaja. Included amongst the observations noted was as follows: “There was asymmetry of the chest with the left pectoralis muscle region better developed in comparison to the right with some sternal plate depression”. There was no abnormality noted by Dr Schiff concerning the right shoulder joint nor were there any recorded complaints of pain or discomfort in that joint.

Has Mr Livaja proven injury to his right shoulder?

I have attempted to summarise the evidence which concerns the history given by Mr Livaja of the circumstances of his injury and his subsequent experience of disabling symptoms. That summary also includes that evidence which relates to physical examination conducted by medical practitioners whose evidence is before the Commission and the results of relevant tests and investigations. The onus is upon Mr Livaja to establish the occurrence of the shoulder injury and, in those circumstances, it is reasonable to make reference at the outset to his own evidence concerning the circumstances of his injury. The principal written statement relied upon by Mr Livaja was made in April 2008, some two years following the subject injury. The circumstances of the injury are outlined at [11] of that statement. There is no suggestion of any injury to the right shoulder to be found in that paragraph. Mr Livaja’s assertion is that, as he was being attacked he put his hands up in front of him with his palms outward to protect himself. It was that movement which gave rise to the injury to his right palm.
At [15] of his statement, Mr Livaja states that whilst resting at home shortly after the injury he began to notice pain, pins and needles and numbness going up into his arm and into the shoulder whenever he used the hand and arm to do anything strenuous. He says that, as a result he stopped using his right hand and arm as much as possible.
The claim form which was completed by Mr Livaja on 9 June 2006, in contrast to the statement made some two years later, makes no reference to symptoms in the right shoulder, however, as noted at [69] above, reference is made not only to the right hand but to the right upper arm.
Mr Livaja has been examined by a very large number of medical practitioners and it is significant, in my view, that all examinations conducted during the year 2006 concern the right hand injury and there is no mention, other than fleeting reference by Dr Teychenne, of involvement of the right shoulder.
It is significant, in my opinion, that the very thorough EMG nerve conduction studies conducted by Dr Teychenne in the latter part of 2006 demonstrated no abnormality involving the shoulder joint and in particular Dr Teychenne noted that Mr Livaja did not have any symptoms consistent with causalgia nor had he developed any symptoms or signs of a complex regional pain syndrome.
It is of significance in my view that on the occasion of Dr Ellis’s first examination of Mr Livaja in November 2006, pain as reported involved the right hand extending into the forearm upon clenching of the fist. No other symptoms are recorded in that first report.
Mr Livaja was re-examined by Dr Ellis some six months later in May 2007. It was then that the history as noted at [85] above, of hitting a pallet when Mr Livaja threw back his right arm defensively causing pain in the right shoulder, was first recorded. That history contrasts with the earlier descriptions of defensive action taken by Mr Livaja and contrasts with that history as recorded by other practitioners including Dr Kapila’s notation of hitting the back of his head (as noted at [74] above).
A remarkable feature of the medical evidence is the very significant contrast between the findings made on examination by Dr Rowe and Dr Isaacs. Those examinations took place within days of each other. I have earlier noted the view expressed by Dr Rowe that Mr Livaja’s complaints and the findings made upon physical examination led him to conclude that he had then a frozen shoulder, albeit such condition was not related to the subject injury. Dr Isaacs records a thorough physical examination at page four of his report which included examination of the cervical spine and all proximal joints of the right arm. Dr Isaacs’s findings are in stark contrast to those as noted by Dr Rowe. There is no evidence to explain the apparent contrast between the findings of those practitioners.
The evidence in its entirety contains contradiction among the expert medical witnesses as to findings on physical examination; inconsistency concerning report by Mr Livaja of the involvement of his right shoulder when injured in April 2006, and variation of accounts given by Mr Livaja as to the circumstances of that injury. Mr Livaja’s allegation concerning such injury is heavily dependent upon the opinion of Dr Ellis who expressed the view that Mr Livaja’s right upper limb is “affected by traumatic capsulitis of the right shoulder”. That opinion appears to be founded upon the complaints of disability and Dr Ellis’s observations concerning restriction of movement of that joint. It is reasonable to conclude that Dr Ellis is also reliant upon the amplified history given to him by Mr Livaja on that occasion concerning physical contact with the pallet. I have reached the view that the weight of Dr Ellis’s evidence requires assessment having regard to the absence of any history concerning development of pain in the right shoulder in April 2007, as recorded by Dr Pukanic, a period of one month prior to Dr Ellis’s examination. In that respect Dr Ellis’s history is incomplete and includes an amplification of history concerning the physical circumstances of the accident which are not corroborated in any manner by the evidence which I have attempted to summarise above. In the circumstances, on review of the evidence, I am not satisfied that Mr Livaja received injury to his right shoulder as alleged.
It may be seen that I have reached a view concerning the alleged injury consistent with that reached by the Arbitrator. In the circumstances Mr Livaja’s application on this appeal to have the Arbitrator’s finding concerning that alleged injury revoked must fail. There being no other challenge to the Arbitrator’s findings it follows that the award made by the Arbitrator concerning entitlement to weekly compensation by reason of the occurrence of other injuries, namely injury to the hand and psychological injury, are to be confirmed.
I have earlier noted, at [13] above, the error which appears in the Certificate of Determination. That error may be cured by revocation on this appeal of order (1) as it appears in that Certificate and substitution with the award noted below.

DECISION

Paragraph (1) of the Certificate of Determination dated 6 September 2010 is revoked and the following award is made in its place:
“(1) Award in favour of the respondent in respect of the applicant’s allegation of right shoulder injury.”

Paragraphs (2), (3) and (4) of the Certificate of Determination dated 6 September 2010 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O’Grady
Deputy President
8 December 2010

I, PENELOPE FLEMING, 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