Lukac v Berkeley Challenge Pty Ltd t/as Spotless - [2016] NSWWCCPD 56

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lukac v Berkeley Challenge Pty Ltd t/as Spotless [2016] NSWWCCPD 56
APPELLANT:	Ivanka Lukac
RESPONDENT:	Berkeley Challenge Pty Ltd t/as Spotless
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-797/16
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	27 June 2016
DATE OF APPEAL DECISION:	18 November 2016
SUBJECT MATTER OF DECISION:	Consequential condition from accepted work injuries; assessment of expert evidence; Paric v John Holland (Constructions) Pty Ltd (1984) 2 NSWLR 505; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43; alleged errors of fact; application of the principles in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	Lee Legal Group
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 27 June 2016 is confirmed.

INTRODUCTION

The worker in this appeal seeks compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for an alleged consequential condition to her left shoulder. She alleges the condition was caused by overuse due to favouring her left arm to protect her right shoulder and neck which were injured in an accepted work injury many years earlier.
The appellant challenges the Arbitrator’s factual finding that the worker failed to discharge the onus of establishing that the alleged overuse occurred and the weight to be attached to the evidence of the medical experts.

BACKGROUND

Ivanka Lukac, the appellant worker, worked for Berkeley Challenge Pty Ltd, the respondent employer, as a cleaner from 1996. Her duties involved picking up rubbish, cleaning windows and window sills, and vacuuming.
On 4 April 2002, Ms Lukac was lifting a vacuum cleaner onto her back when she suffered an injury to her right shoulder and neck in the course of her employment.
On 1 June 2006, Ms Lukac made a claim for compensation in respect of 12 per cent whole person impairment arising from the injuries sustained on 4 April 2002. She was awarded $15,500 pursuant to s 66 of the 1987 Act and $11,500 pursuant to s 67 of the 1987 Act.
In 2010, Ms Lukac made a further claim for compensation in respect of an additional two per cent whole person impairment arising from injury to the cervical spine and right upper extremity.
On 8 May 2010, Ms Lukac signed a complying agreement with the employer. This agreement provided for the payment of $3,000 in respect of the additional two per cent whole person impairment of the cervical spine and right upper extremity. It also provided the payment of s 67 benefits in the sum of $6,000.
On 4 May 2015, Ms Lukac made a further claim pursuant to s 66 for an additional five per cent whole person impairment for a consequential injury to her left upper extremity consequential upon the injury to the right shoulder. This claim was made in accordance with the assessment of Dr James Bodel, orthopaedic surgeon, dated 18 March 2015.
On 29 December 2015, the employer’s insurer, Employers Mutual NSW Ltd, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It maintained the condition of the left upper extremity was not a consequential condition or an employment related injury.
On 16 February 2016, Ms Lukac lodged with the Commission an Application to Resolve a Dispute (the Application). She claimed that she suffered an injury to her right shoulder, left shoulder, elbows and neck while “working for the respondent as a result of the nature and conditions of employment”. This was later amended to plead injury to the “right shoulder and cervical spine” on 4 April 2002 “and consequential condition to the left upper extremity.”
On 9 March 2016, the respondent lodged with the Commission a Reply to the Application, disputing liability for the reasons identified in the s 74 notice.
On 31 May 2016, the matter proceeded to conciliation/arbitration proceedings before a Commission Arbitrator. Following these proceedings the Arbitrator reserved his decision.
On 27 June 2016, the Arbitrator issued a Certificate of Determination and Statement of Reasons. The Arbitrator found for the employer in respect of the consequential condition to the left upper extremity and referred the accepted injury to the right upper extremity to the Registrar for referral to an Approved Medical Specialist for assessment. The Certificate of Determination is in the following terms:
“The Commission determines:
1. Award for the respondent in respect of the claim pursuant to section 66 of the Workers Compensation Act 1987 alleged to arise from a consequential condition in the left upper extremity.
2. The claim pursuant to section 66 of the Workers Compensation Act 1987 in respect of the right upper extremity (shoulder) is remitted to the Registrar for referral to an Approved Medical Specialist determine whole person impairment, if any, arising from injury to the right upper extremity (shoulder) in the course of employment on 4 April 2002.
3. The material to be supplied to the Approved Medical Specialist should include:
(a)Application to Resolve a Dispute and attached documents (excluding page 43);
(b)Reply and attached documents;
(c)Documents attached to Application to Admit Late Documents by the respondent dated 19 [M]ay 2016;
(d)Documents attached to Application to Admit Late Documents by the applicant dated 28 April 2016;
(e)Documents attached to Application to Admit Late Documents dated 27 May 2016 by the applicant, and
(f)Copy letter to Dr Witkowski from the applicant's solicitors dated 31 March 2016.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Ms Lukac appeals the Arbitrator’s determination, in respect of the findings that she did not sustain a consequential condition.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements in s 352(3) and (4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     making a factual error in respect of the opinion expressed by Dr Manohar;
(b)     fact, law and misused his discretion in preferring the report of Dr Faithfull, and
(c)     fact and law in concluding the worker did not suffer a consequential condition in the left shoulder.

EVIDENCE

Ms Lukac

In evidence are several statements by Ms Lukac dated 27 August 2010, 16 August 2015, and 26 May 2016.
In her statement of 27 August 2010, Ms Lukac states that she sustained an injury at approximately 9.40 pm on 4 April 2002 when she injured her neck and shoulder. She states “I lifted a vacuum cleaner to carry it on my shoulder and back and I felt pain in the neck and right shoulder.” She could not finish her shift due to increased “pain and disability.”
Ms Lukac refers to pain in “the arms and numbness in the fingers and pain” in her right shoulder and right side of the neck. She adds that she is “now unable to perform activities that involve lifting or reaching.” She further adds that she has:
“difficulty doing housework and have to rely a lot on my daughter to do a lot of the housework and my daughter to drive me around. I used to enjoy gardening but am unable to do this now in the same capacity due to my injuries. If I need to travel, the symptoms are aggravated.
The pain disturbs my sleeping, and my social activities are now severely limited.”
In her statement of 16 August 2015, Ms Lukac states that the “majority of my duties were vacuuming.” She describes the vacuum cleaner to have weighed approximately 5-10 kgs and noted that there “was a strap around my waist and also shoulders.”
She describes how she sustained the injury, in similar terms to her previous statement. She adds that she “immediately ceased work” and reported the incident to her supervisor. She ceased work activities and went home “around 10:00pm” as she “couldn’t work any more.” She consulted her general practitioner and was certified unfit for work for two weeks.
In September 2002, Ms Lukac returned to light duties which she performed until December that year due to her symptoms. The insurer then arranged for Ms Lukac to undertake employment at Homebush Park where she picked up rubbish with an extendable arm. She claims that she did not last very long doing this because it caused her a lot of pain in her right shoulder and neck. Over time she started experiencing pain down both arms.
In or about 2008/2009 Ms Lukac worked at Anglicare as a shop assistant and also at Cadbury as a kitchen hand. She ceased these duties because they exacerbated her symptoms.
Mr Lukac states that:
“Over the years I found that I have favoured my left shoulder due to the ongoing pain in my right shoulder. As the years have gone on I have started to develop pain and symptoms in my left shoulder which are ongoing to date.
I continue to have pain in my neck and both my shoulders/arms.”
She also states that on a “day to day basis” she continues to be in “a lot of pain.” She adds that since the injury her “social activities have decreased significantly” and she rarely leaves the house. She further adds:
“I continue to have pain in my arms and numbness in my fingers and pain in my right and left shoulder, arms and neck. My neck will lock at least 3 times a day and I have difficulty turning it. I am now unable to perform activities that involve lifting or reaching. I know due to my impairment I will never be able to return to any form of work.”
Ms Lukac further states that she has “difficulty doing house work” and she has “to rely a lot” on her daughter “to do a lot of the house work and drive” her around to “medical appointments and the like.” Her symptoms are “significantly aggravated” if she needs to travel. The pain and symptoms also disturb her sleeping “on an ongoing basis.”
Ms Lukac does not refer to symptoms in her left shoulder in her supplementary statement of 26 May 2016.

Dr Witkowski

Dr Witkowski is Ms Lukac’s general practitioner. The doctor’s clinical notes are in evidence. They include a number of entries with respect to Ms Lukac’s left upper extremity.
On 12 August 2005, Dr Witkowski records “some L neck throbbing when lying down.”
On 24 April 2006, Dr Witkowski records “pins & needles L arm continuing”.
On 26 June 2008, Dr Witkowski records “Now still prefs L neck/arms/forearms.” On 3 July 2008, Dr Witkowski records “opening jar with L hand today → shooting pain L chest through to back.” On 4 September 2008, Dr Witkowski records that Ms Lukac was “off” work and experiencing “L rotator cuff symptoms.” On 19 September 2008, Dr Witkowski records the “L shoulder sl. better.”
On 17 February 2009, Dr Witkowski records “neck/shoulders not good since 13/2/09.”
On 20 September 2013, Dr Witkowski records that Ms Lukac has a further appointment with Dr Manahor for the injury to the left neck.
On 19 May 2014, Dr Witkowski refers to the May 2014 ultrasound of the left shoulder and records “probable full thickness tear supraspinatus; partial tear at origin of subscapularis basis; trace of fluid in biceps tendon; subacromial bursitis.” On 28 May 2014, Dr Witkowski discusses Ms Lukac’s “L shoulder and eligibility under WC.”
There are several other entries recording symptoms in the left upper extremity and appointments with specialist doctors on 10 January 2014, 1 May 2014 and 26 August 2014.
In a report to Ms Lukac’s legal representative, dated 15 April 2016, Dr Witkowski records:
“On 12 August 2005 Mrs. Lukac complained of LEFT shoulder ‘throbbing’ as well as the neck and right shoulder pain. This was construed by me as strain/inflammatory due to ‘favouring’ her left upper limb and ‘guarding’ her right. In March 2006 Mrs. Lukac went to Fairfield Hospital with paraesthesiae in the left leg, tingles in the left side of the jaw and left arm, shortness of breath and chest pain. On this occasion she was cleared of any cardiac problems and the left arm tingles were investigated by Dr. G. Presgrave (Neurologist) who performed a bilateral carotid duplex Doppler and brain MRI; both of which were clear.
On 26 June 2008 she presented with, yet again, on/off pain left side of neck, arm, forearm (she had been in Fairfield Hospital from 4-6 June to again check that the symptoms were not heart related).
On 4 September 2008 Mrs. Lukac presented with some fairly mild left shoulder rotator cuff symptoms which improved to a large extent in the ensuing fortnight, hence her comment on 19 September that the left shoulder was ‘better’.
In May 2013 Mrs. Lukac saw Dr. D. Manohar (Pain Management Specialist) who performed MRI neck, right shoulder and gave some cortisone injections.
Mrs. Lukac saw Dr. Manohar on 28 April 2014 and complained of left arm, neck, shoulder pain whereupon Dr. Manahar sent her for ultrasound of left shoulder, showing probable full thickness tear of the supraspinatus, partial tear of the origin of the subscapularis tendon and subacromial bursitis. Towards the end of June 2014 Dr. Manohar did a left shoulder cortisone injection after it was approved by the insurer. Dr. Manohar repeated the ultrasound of the left shoulder on 27 August 2014 and repeated injections of cortisone in the following months with equivocal results.
As stated previously I believe the left shoulder problems are as a result of more use of the left upper limb due to the initial injury to the right i.e. muscular-ligamentous injury.”

Dr Lewington

Dr Witkowski referred Ms Lukac to Dr David Lewington, consultant physician. Dr Lewington initially assessed Ms Lukac on 7 October 2005, in respect of the injury to the right shoulder and degenerative changes to the cervical spine arising from the incident in April 2002.
Dr Lewington notes that Ms Lukac has been refractory to treatment, which had included an injection to her right shoulder, physiotheraphy, and a nerve block. He noted that Ms Lukac “frequently lays down and tends to rest during the day. Her daughters do most of her house work etc.” He recommended intensive coordinated inpatient-style cognitive behavioural pain management treatment and a structured physical upgrading regime.

Dr Cordato

Ms Lukac was referred by Dr Witkowski to Dr Dennis Cordato, neurologist. In a report dated 10 October 2012, Dr Cordato recorded a history of pain to Ms Lukac’s right shoulder and neck following the incident in April 2002. He noted that Ms Lukac presents with “chronic neck pain complicating a work related accident.” He added that she “has had chronic pain ever since.”

Dr Manohar

Ms Lukac was referred by Dr Witkowski to Dr Manohar, consultant physician musculoskeletal & spine medicine. In evidence are several reports from Dr Manohar to Dr Witkowski.
Dr Manohar initially assessed Ms Lukac on 13 May 2013. In a report dated the same, Dr Manohar recorded the following history of the injury:
“She was positioning a vacuum cleaner onto her shoulder and developed right shoulder pain. She subsequently developed neck pain extended down the right arm.”
He recorded that as a result Ms Lukac underwent physiotherapy treatment and cortisone infiltrations of the right shoulder.
In a report dated 31 March 2014, Dr Manohar states that Ms Lukac has “neck ache extending to the right shoulder and down to the right arm and right thumb. The pain also extends from the left side to the left shoulder.” An ultrasound was arranged which demonstrated pathology in the shoulder.
On 14 April 2014, Ms Lukac attended on Dr Manohar. In a report dated the same, Dr Manohar states that Ms Lukac has “pain in the neck extending to the shoulders.”
On 28 April 2014, Ms Lukac again attends on Dr Manohar. In a report dated the same, Dr Manohar states that Ms Lukac “still has neck ache and right shoulder pain. She is starting to develop left shoulder pain due to repetitive movements.” He recorded that Ms Lukac’s rotatory movements were markedly restricted. He recorded her left shoulder flexion to be 120°, abduction to be 30° and “uncomfortable.”
On 12 May 2014, Ms Lukac attends on Dr Manohar. Dr Manohar examines Ms Lukac’s left shoulder under real-time musculokeletal ultrasound guidance. In a report dated 12 May 2014, Dr Manohar recorded the findings of that ultrasound:
“•     probable full-thickness tear of the supraspinatus
·        partial tear at the origin of the subscapularis
·        small amount of fluid in the biceps tendon
·        subacromial bursitis.”
On 19 May 2014, Ms Lukac attends on Dr Manohar. In a report dated the same, Dr Manohar states that Ms Lukac has “left shoulder pain and has difficulty with lifting and reaching” and that she injured her shoulder “at work while wearing a back pack vacuum cleaner.” He records the following findings of an ultrasound study of the left shoulder performed on 12 May 2014:
“…fluid around the biceps sheath. There is a tear in the supraspinatus measuring 1.7 cm x 0.7cm. At the origin of the subscapularis, there is a small echogenic foci with a 6mm hypoechoic area which could be consistent with a partial tear. There is thickening of the subacromial bursa. Abduction is limited to 45° due to pain. There are degenerative changes noticed in the acromio-clavicular joint. There is fluid deep in the coracoacromial joint.
I have asked her to return to see you with regards to whether or not this injury is compensable.”
On 26 May 2014, Dr Manohar records ongoing pain in Ms Lukac’s left shoulder and noted seven areas of change. He records that Ms Lukac “has left shoulder pain. She tells me she carried a vacuum cleaner at work and the belt went over her shoulders. She states she developed pain while undertaking this duty at work.” He recommended a PRP infiltration and an anti-inflammatory infiltration to the seven areas of change. In a further report dated 10 June 2014, Dr Manohar notes ongoing pain in the left shoulder and that he applied to the insurance company for approval for the PRP and infiltrations but had not received a response. In a report dated 23 June 2014, Dr Manohar notes that the insurer had granted approval for the infiltration procedure of the shoulder.
On 11 August 2014, Dr Manohar records that Ms Lukac experiences neck pain extending to her left shoulder and right shoulder. He also records a tightness in the neck and shoulder girdle.
On 15 September 2014, Dr Manohar records that Ms Lukac has bilateral shoulder pain. He records that the “left shoulder shows a tear involving the anterior half of the supraspinatus measuring 1.5cm in the medial lateral extent” and that there is a “thickening of the subacromial subdeltoid bursa.” He notes that he will apply to the insurer for approval of bilateral infiltration. On 29 September 2014, Dr Manohar advises that he will proceed with the procedure to the left shoulder and cervical facetal regions which had been approved by the insurer.
On 19 January 2015, Dr Manohar refers to Ms Lukac’s “neck pain, left shoulder pain and paraesthesia in the fingers.”

On 17 June 2015, Dr Manohar reports that Ms Lukac has a “marked lateral epicondylitis, complicated by a low-grade partial insertional tear.” He again applies to the insurance company for approval to conduct an “RF [radiofrequency] procedure” and a “PRP [platelet rich plasma?] infiltration.” On 29 September 2015 Dr Manohar issues a further report in similar terms to the report of 17 June 2015.
On 22 December 2015, Dr Manohar reports that he performed the infiltration procedure that day. He noted that Ms Lukac was still restricted in her movement and he would re-apply for approval to conduct an RF procedure.
On 20 January 2016, Dr Manohar reports that an “ultrasound study of the left shoulder shows a full-thickness tear involving the anterior half of the supraspinatus. There is moderate thickening of the subacromial subdeltoid bursa.” He noted that he had applied for infiltration procedures to the shoulders.
Dr Manohar provides several other reports, dated 17 February 2016, 1 March 2016, 16 March 2016, where he notes that Ms Lukac continues to experience pain in her shoulders.

Dr Bodel

On 16 March 2015, Dr Bodel examined Ms Lukac on behalf of her legal representatives. He issued a report on 18 March 2015. Dr Bodel records a history that Ms Lukac steadily deteriorated after the injury and “has increasing neck and right shoulder girdle pain and has subsequently developed left shoulder pain because she has favoured that side to protect the injured right side.”
Dr Bodel records that Ms Lukac has a “very restricted range of shoulder movement on the right and left sides,” most restricted on the left. He commented on the reports of various investigations which he claimed were consistent with the “ongoing pathology in the neck and both shoulders.”
Dr Bodel found that there is a causal link between her injury at work and her current complaints. He said that Ms Lukac has no current capacity for work. Her clinical condition had stabilised, assuming that she did not proceed with any surgical interventions in the shoulder. He found her to have a whole person impairment of 19 per cent, comprising of 6 per cent in respect of the left upper extremity, 8 per cent in respect of the right upper extremity, and 7 per cent in respect of activities of daily living.
In respect of activities of daily living, Dr Bodel comments that Ms Lukac “can drive an automatic motor vehicle but for about 20 or 30 minutes. She struggles with the housework and other family and friends assist her, particularly her husband.” In response to a specific question about domestic assistance as a result of the injury, Dr Bodel commented that Ms Lukac requires:
“domestic assistance for heavy household maintenance and cleaning activities and this is being provided gratuitously by her husband and her adult children. She cannot engage in strenuous or repetitive tasks, particularly overhead, and her ability to cope will steadily deteriorate over time.”

Dr Faithfull

On 23 June 2015, Ms Lukac attended on Dr Donald Faithfull, orthopaedic surgeon qualified by the employer. On 26 June 2015, Dr Faithfull provided a report in which he referred to several medical documents which he reviewed. He records a history of the incident in April 2002, consistent with Ms Lukac’s statements. He also records her current complaints, which include pain in her left arm into both hands. He records that Ms Lukac said she is able to carry out her activities of daily living but that this was slow and her two daughters who lived with her did the housework. He added that Ms Lukac said that:
“…there was no injury to the left shoulder but the pain came on gradually and it was at the back of the left shoulder. It is aggravated by usage of the shoulder, particularly elevation.”
Dr Faithfull recorded the following findings in respect of the left shoulder:
“There was no deformity or muscle wasting in the left shoulder. Longhead of biceps was intact. Deltoid functioned normally. There was tenderness along the trapezius muscle. There was no tenderness at the acromioclavicular joint or at the greater tuberosity. There was no tenderness anterior to the shoulder. The most tenderness appeared to be in the trapezius muscle. Range of movement was almost full with complaints of pain at the extremes.”
Dr Faithfull did not agree that Ms Lukac had suffered a consequential condition to her left shoulder as a result of the incident on 4 April 2002. In response to a request to provide comments on Ms Lukac’s left shoulder complaint Dr Faithfull recorded:
“Mrs Lukac told me that there was no injury to her left shoulder at work on 04/04/2002. The condition in the left shoulder has come on gradually.
As Mrs Lukac has not worked since 2002 and her daughters have been doing her housework, it is my opinion that Mrs Lukac would not have suffered overuse of the left shoulder. The changes seen on the MRI are degenerative.”

Radiological investigations

On 12 May 2014, Ms Lukac underwent an ultrasound of the left shoulder. The findings of the ultrasound are recorded in a report by Dr Sophia Zadelis, radiologist, dated 12 May 2014. The report records: “[p]robable full thickness tear supraspinatus. Partial tear at the origin of subscapularis. A trace of fluid in the biceps tendon. Subacrominal bursitis.”
On 25 August 2014, Ms Lukac underwent a further ultrasound of the left shoulder. The findings of the ultrasound are recorded in a report by Dr Cuganesan, radiologist, dated 25 August 2014. The report records: “[f]ull-thickness tear of the anterior half of the supraspinatus tendon with moderate subacromial/subdeltoid bursitis.”

THE ARBITRATOR’S REASONS

The Arbitrator accepted that Ms Lukac had suffered an injury to her neck and right shoulder on 4 April 2002 when she was attempting to lift a vacuum cleaner onto her back. He said (at [25]) that “…[i]t is necessary to examine the whole of the evidence to ascertain whether that injury led to greater use of the left arm or whether Ms Lukac simply reduced her level of physical activity overall.”
The Arbitrator was not satisfied that Ms Lukac suffered a consequential condition to her left shoulder. His reasons may be briefly summarised as follows.
There are some brief references in the notes of Dr Witkowski in relation to complaints of symptoms in her left shoulder. These occurred in 2008 when he noted “some left rotator cuff symptoms”. The next reference to complaints in respect of the left arm occurred in July 2013 when Dr Witkowski’s notes record a proposed scan or treatment to the left arm on 2 August 2013. The following year on 4 April 2014, Dr Witkowski noted “both shoulders and neck not good”.
In his report of 15 April 2016, Dr Witkowski noted that Ms Lukac had complained of left shoulder throbbing in a consultation on 12 August 2005. The Arbitrator set out the actual handwritten note of that consultation which referred to “some (L) neck throbbing.” The Arbitrator observed that Dr Witkowski does not explain how he is able to recall eleven years after the event that there was a complaint of throbbing in the left shoulder in 2005 when that is not evidenced from the clinical notes. Dr Witkowski opined that in his view the left shoulder problems were as a result of more use of the left upper limb due to the initial injury to the right. He diagnosed a musculo-ligamentous injury.
Dr Bodel supported Ms Lukac’s claim. He considered that the left shoulder pain was consequential upon the neck and right shoulder injury because Ms Lukac had favoured that side to protect the injured right side.
The Arbitrator was not satisfied on the balance of probabilities that the overuse relied upon by Drs Bodel and Witkowski had been established. The Arbitrator accepted Ms Lukac’s evidence that she had reduced her gardening activities and her social life. He noted that since 2002 she had not performed in her pre-injury duties to the same extent and the heavier tasks had been left to others.
The Arbitrator acknowledged that whether there was a causal connection between the admitted injury and the alleged consequential injury was a question of fact (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon); Alder v Allworks & Trades Pty Ltd [2013] NSWWCCPD 71 (Alder)).
The Arbitrator referred to the findings of Deputy President Roche in Moon where the Deputy President found (at [48]–[49]) that the histories contained in the medical reports of various doctors of overuse of a limb, due to a work related injury were accepted as evidence of the truth of the history of overuse, notwithstanding shortcomings in the worker’s evidence.
In Alder, Deputy President O’Grady held (at [41]):
“There are two matters that must be noted. First, each case must be determined on its own facts. The decision in Moon concerning proof of ‘causation’ can in no way be treated as authority supporting a similar conclusion on the present facts. Secondly, the appeal in Moon was one by way of a review of the Arbitrator’s decision as was permitted by s 352(5) as it stood before amendment in 2011. The present appeal is governed by the amended s 352(5) which provides:
‘(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 Arbitrator noted that prior to the subject injury Ms Lukac had performed 20 hours of arduous cleaning work as detailed in her statement. Those activities had not been present since the attempt to return to work on suitable duties failed. Ms Lukac had performed fewer household tasks and the heavier domestic tasks were no longer performed by her. He noted that she had reduced her gardening and other social activities.
The Arbitrator weighed those findings against the evidence of an increase in the use of her left arm in activities of daily living such as light domestic tasks and personal hygiene. He concluded on balance that there was no basis to find that there had been an overall increase in reliance on the left arm.
Overall the Arbitrator preferred the view of Dr Faithfull. The Arbitrator considered that the evidence provided a fair climate for the acceptance of Dr Faithfull’s opinion, namely that Ms Lukac had not suffered overuse of the left shoulder.
The Arbitrator concluded that he could not be satisfied that Ms Lukac had established that the left shoulder condition is consequential upon the injury to the neck and the right shoulder in the course of her employment on 4 April 2002.

THE ALLEGED FACTUAL ERROR WITH RESPECT TO DR MANOHAR

Submissions

The appellant submits that the Arbitrator erred by finding that Dr Manohar was under the mistaken belief that the symptoms suffered by Ms Lukac in her left shoulder resulted directly from the accepted workplace injury on 4 April 2002.
The appellant also submits that the Arbitrator misquoted from Dr Manohar’s report of 26 May 2014. The Arbitrator recorded the history (at [32]) in these terms:
“She has left shoulder pain. She tells me she carried a vacuum cleaner at work and the belt went over her shoulders. She states she developed this pain while undertakings [sic] duties at work.” (emphasis added)
It is submitted that the word “this” has been incorrectly positioned in the Arbitrator’s recording of Dr Manohar’s history. The history recorded:
“She has left shoulder pain. She tells me she carried a vacuum cleaner at work and the belt went over her shoulders. She states she developed pain while undertaking this duty at work.”
The respondent concedes that the Arbitrator erred as the appellant submits. However the respondent submits that the misplacement of the word “this” in the sentence did not lead to a misunderstanding of the history obtained by Dr Manohar.
The appellant further submits that the objective contemporaneous evidence demonstrates injury to the right shoulder and neck in April 2002 with continuing deterioration of the right shoulder and neck over time leading to significant treatment in 2013 and 2014.
The clinical context in which Ms Lukac came to present to Dr Manohar, and the context in which treatment proceeded, is vital to the factual finding in respect of the basis for Dr Manohar’s opinion. Ms Lukac was referred to Dr Manohar with chronic cervical spine and right shoulder pain. Dr Manohar had been treating Ms Lukac for those complaints for almost a year before he reported on the left shoulder condition (in his report of 28 April 2014).
The history obtained by Dr Manohar at the initial consultation in May 2013 referred only to neck pain extending down the right arm resulting in initial treatment including physiotherapy and cortisone infiltrations into the right shoulder. The appellant submits that “the assertion that subsequent consultations on 19 May and 26 May 2014 somehow temper that history is erroneous and in error”.
There are two things to note in respect of the report of 19 May 2014 (mistakenly referred to as the report of 18 May 2014). Firstly it follows on from Dr Manohar’s report of 28 April 2014 noting the onset of left shoulder complaints with repetitive movements. Secondly the doctor specifically refers to a singular shoulder as being injured whilst wearing a backpack at work being entirely consistent with the initial report of injury to the right shoulder and the development of left shoulder symptoms much later.
In his report of 26 May 2014, Dr Manohar reported “… she has left shoulder pain. She tells me she carried a vacuum cleaner at work and the belt went over her shoulders. She states she developed pain while undertaking this duty at work”.
The appellant submits that, as with the report of 18 (sic) May 2014, this subsequent correspondence to Dr Witkowski “posits no other alternative cause of the symptoms described in the left shoulder as described in the report of 28 April 2014”. The appellant submits that the report is entirely consistent with the history outlined in the report of 28 April 2014 and those reports occurring in the period from 13 May 2013 up to that date.
Further it is submitted by the appellant that the Arbitrator erred when he reasoned that Dr Manohar “believed that the left shoulder pathology resulted from a particular injurious event in the workplace” ([34]). Dr Manohar never made any such reference to pathology being due to the specific workplace event in 2002. It is submitted “that finding simply did not appear in any of the doctor’s reports”.
The appellant submits that the Arbitrator mistakenly concluded that Dr Manohar was of the view that the left shoulder symptoms resulted directly from workplace activities (at [81]). The only evidence from Dr Manohar as to the cause of Ms Lukac’s left shoulder symptoms was contained in his comment “she is starting to develop left shoulder pain due to repetitive movements”.

Consideration

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is 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 High Court considered the circumstances in which factual findings may be challenged on appeal in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir). Chief Justice Barwick (at 506) said:
“The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge’s decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The above passage was applied by the High Court in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227; 71 ALJR 29 and in the context of the Commission in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19].
I accept that the initial history obtained by Dr Manohar on 13 May 2013 concerned the development of neck pain extending down the right arm arising from the workplace injury on 4 April 2002. For almost a year thereafter, Dr Manohar continued to treat Ms Lukac for symptoms relating to the cervical spine and right shoulder.
Dr Manohar noted, as has been discussed, that Ms Lukac first reported pain in the left side of the neck and shoulder to him in March 2014. Dr Manohar took no history from Ms Lukac at that time as to the cause of the symptoms; he merely reported the findings. In the further consultations on 14 April 2014 and 28 April 2014, he continued to record complaints of left shoulder pain. He then ordered an ultrasound to identify the condition of the left shoulder. The results of the ultrasound were reported on 12 May 2014. On 19 May 2014, Dr Manohar produced a further report which included the history of injury to the left shoulder, namely that Ms Lukac injured her left shoulder at work while wearing a backpack vacuum cleaner. The report of 19 May 2014 deals exclusively with the complaints in relation to the left shoulder, the doctor noting that the pain is evidenced with reaching and lifting activities.
Dr Manohar’s report of 26 May 2014, again dealing exclusively with the left shoulder, repeated the history of injury to the left shoulder occurring at work associated with working with the vacuum cleaner and the belt over her shoulders. The history he obtained on that occasion is unequivocal in that Ms Lukac clearly associated the problems in her left shoulder with the accepted work injury. It is hardly surprising in that context that it occurred to Dr Manohar that the condition may be compensable hence his application to the insurance company for approval for the various procedures he recommended.
It was clearly open on the evidence before the Arbitrator to conclude that Ms Lukac provided a history to Dr Manohar that she injured her shoulder at work whilst wearing a backpack vacuum cleaner and that she developed pain while undertaking that duty at work. So much is evident from the reports of 19 and 26 May 2014. It is conceded that the Arbitrator slightly misquoted the history recorded by Dr Manohar on 26 May 2014. However, I do not accept that that error led him to misunderstand the history obtained by Dr Manohar.
The appellant relies on complaints to Dr Manohar of pain in the left shoulder being due to “repetitive movements”. As the respondent submitted, there is no evidence as to any “repetitive movements” undertaken by Ms Lukac. Nor was there any evidence that Ms Lukac experienced difficulty at work due to “lifting and reaching”. Certainly there was no history of such recorded by Dr Manohar. Further, there is no evidence that if such activities were performed, they were performed with the left arm so as to protect the injured right shoulder or cervical spine.

The appellant’s submission that the symptoms in the left shoulder emerged for the first time on 28 April 2014 is inconsistent with the clinical notes of Dr Witkowski and I reject it. Dr Witkowski recorded complaints with respect to the left upper extremity on 12 August 2005, 24 April 2006 and 3 July 2008. On 17 February 2009 he recorded neck and shoulders (plural) not good since 13 February 2009. On 20 September 2013 Dr Witkowski’s clinical notes record “saw Manohar … Again appointment 11/10/13 for injury L neck” (emphasis added).
The Arbitrator’s findings with respect to Dr Manohar’s reports were clearly open on the evidence. The doctor clearly stated in unequivocal terms not once but twice his view that he obtained a history from Ms Lukac that she injured her left shoulder at work whilst wearing a backpack vacuum cleaner. It was open to the Arbitrator to conclude, on that basis, that the opinions expressed by Dr Manohar were based on an incorrect history.
I am not satisfied that it has been shown that the Arbitrator was wrong or that any error of the kind discussed in Whiteley Muir occurred. For these reasons this ground is dismissed.

DID THE ARBITRATOR ERR IN ACCEPTING THE EVIDENCE OF DR FAITHFULL?

The appellant’s submissions

The appellant referred to often cited authorities concerning the acceptance of expert evidence, namely Paric v John Holland (Constructions) Pty Ltd (1984) 2 NSWLR 505 (Paric) and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43 (Hancock). The appellant submitted that Dr Faithfull made no reference to, nor appeared to have any idea of the existence of the reports of Dr Manohar following 14 March 2014. Therefore it is submitted that Dr Faithfull did not hold or refer to any reports post-dating the commencement of Ms Lukac’s left shoulder complaints.
The appellant submits that Dr Faithfull concluded that because Ms Lukac has not worked since 2002 and that her two daughters have been doing her housework, Ms Lukac would not have suffered overuse of the left shoulder. Dr Faithfull also concluded that the changes on MRI are degenerative.
The appellant also submits that there are three matters that flow from Dr Faithfull’s assessment.
First, Dr Faithfull did not consider that Ms Lukac had suffered from either a cervical spine or right shoulder injury with the exception of a temporary muscular strain of the right trapezius. That conclusion is inconsistent with an acceptance by the respondent employer of injuries to the cervical spine and right shoulder, evidenced by the two prior payments of permanent impairment compensation.
Second, the doctor’s reference to MRI findings is a reference to the MRI to the right shoulder not the left. Nevertheless he conflated those findings as a basis for finding that there was no left shoulder condition consequent upon the accepted injuries.
Third, Dr Faithfull premised his opinion on the findings referred to at [63] above, yet the Arbitrator found both statements were not in fact the underlying facts he found. The Arbitrator noted that Ms Lukac’s daughters assisted with household tasks and that Ms Lukac had reduced her gardening activities and social life.
The appellant further submits that “the underlying factual assumptions of Dr Faithfull did not provide a ‘fair climate’ in which his opinion could be considered. In the circumstanced [sic] the discrepancies must be fatal to the force of the doctor’s opinion”.

Consideration

The decision in Hancock makes it clear that even in evidence based jurisdictions, compliance with the usual requirements of expert evidence “does not require strict compliance with each and every feature referred to by Heydon JA in [Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705] to be set out in each and every report” (per Beazley JA (as her Honour then was), Giles and Tobias JJA agreeing at [82]). Beazley JA added (at [83]) that in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]).
Contrary to the appellant’s submission, Dr Faithfull accepted that Ms Lukac injured her right shoulder and cervical spine which he assessed at DRE Cervical Category II. However, in his view, the condition was degenerative and not related to the incident on 4 April 2002.
The appellant’s submission that Dr Faithfull did not have access to any radiological scanning of the left shoulder is not correct. Dr Faithfull had the report of Dr Bodel of 18 March 2015 which set out the results of the ultrasound of Ms Lukac’s shoulder dated 25 August 2015. The report of Dr Cuganesan, the radiologist who performed the ultrasound of the left shoulder on 25 August 2014, was that Ms Lukac suffered a “full-thickness tear of the anterior half of the supraspinatus tendon with moderate subacromial/subdeltoid bursitis”. That evidence was before Dr Faithfull at the time of his report.
I reject the submission that Dr Faithfull based his conclusion on only two factors. The first being that Ms Lukac had not worked since 2002 and that her two daughters have been doing her housework, thus she could not have suffered overuse of the left shoulder. The second being his view of the degenerative nature of the condition.
Dr Faithfull’s opinion was based on a review of the documentation concerning Ms Lukac’s prior treatment, the radiological examination, her personal and clinical history, her current complaints, and a thorough clinical examination.
The history that Dr Faithfull recorded with respect to the alleged overuse of the left shoulder was substantially consistent with the history given by Ms Lukac for the following reasons.
Ms Lukac told Dr Lewington that “she frequently lays down and tends to rest during the day. Her daughters do most of her housework etc” (see [40] above). Ms Lukac said she was unable to perform activities that involved lifting or reaching (see [21] above) She also said she had difficulty doing housework and relied on her daughters to do a lot of the housework and to drive her to medical appointments and the like (see [28] above).
The history provided to Dr Faithfull by Ms Lukac is, as the Arbitrator found, consistent with someone who avoids activities rather than someone who undertakes them but with physical consequences. I am satisfied that the history relied upon by Dr Faithfull provided a “fair climate” for the acceptance of his opinion (Paric).
I am satisfied that Dr Faithfull’s report complies with the requirements discussed in Hancock. He clearly set out the history that he obtained, his physical examination findings, the documentation provided to him including, as I have indicated, the relevant radiological material, and the history garnered from other sources including Ms Lukac’s own statements. Dr Faithfull’s opinion expressed on the basis of that material formed a satisfactory basis for the acceptance of his opinion (Hancock). The Arbitrator did not err in accepting it.
It follows that this ground fails.

THE FINDING THAT THE APPELLANT DID NOT SUFFER A CONSEQUENTIAL CONDITION IN HER LEFT SHOULDER

The appellant’s submissions

The appellant submits that the Arbitrator proceeded on the basis that in order for Ms Lukac to succeed it was necessary for him to ascertain whether the accepted s 4 injury to the neck and right shoulder led to a greater use of the left arm or whether Ms Lukac simply reduced her level of physical activity overall (at [25]). The appellant submits that the Arbitrator erred in law in proposing that question as being required to be answered in the alternative in order for Ms Lukac to succeed.
When dealing with a consequential condition it is not necessary that employment be a substantial contributing factor to the consequential condition, or in the case of a disease, that it be the main contributing factor to the contraction or aggravation of the disease. All that is necessary is that the condition has resulted from the accepted s 4 injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd t/as Belfera [2008] NSWWCCPD 53 at [19]–[25]).
The Court of Appeal considered the meaning of the expression “results from” in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). The commonsense test referred to in Kooragang is consistently applied in the Commission and is used to determine whether the alleged consequential condition results from the s 4 injury. The case posited by Ms Lukac was that as a result of her substantially disabled right shoulder she was forced to rely on, and to “overuse”, her left shoulder, thereby resulting in the left shoulder symptoms.
As such Ms Lukac was required to demonstrate that her right shoulder injury had caused her to use her left shoulder to the extent that the left shoulder became symptomatic as a result of its use.
The appellant submits that, in that context, the only matter the Arbitrator was required to ascertain was whether the accepted s 4 injuries led to greater use of the left arm, not whether Ms Lukac simply reduced her level of physical activity overall. The latter proposition, so it is submitted, was irrelevant.
If Ms Lukac reduced her overall activities, but nonetheless made greater use of her left arm as a result of the s 4 injury thereby causing symptoms the test would be satisfied. After referring to relevant extracts of Ms Lukac’s evidence, and the evidence of Drs Bodel, Faithfull and Witkowski, the appellant submitted that the Arbitrator made no further reference to and provided no discussion in respect of the opinion of Dr Witkowski or any cogent reasons for rejecting that part of his evidence that went to Ms Lukac’s left shoulder complaints in 2014.
The appellant submits that the Arbitrator’s approach to the legal question of causation in respect of the consequential condition caused him to err and, moreover, to make a factual error in approaching the evidence as to the overuse of the left shoulder. The Arbitrator erred in rejecting the evidence of the history contained in the reports of Drs Manohar, Witkowski and Bodel. Evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369 at [75]; Smith v Parkes Shire Council [2010] NSWWCCPD 130 at [96]).
Implicit in the Arbitrator’s error is the failure to deal with or address the evidence of Ms Lukac’s deteriorating condition in late 2012, 2013 and 2014 necessitating increasing treatment of her condition.
Moreover it is submitted that the Arbitrator erred in finding no evidence of “overuse”. Ms Lukac’s evidence is that she favoured her left shoulder over the years due to ongoing pain in the right shoulder and, as a result, developed pain and symptoms in the left shoulder.

Consideration

The appellant correctly identified the legal principles that apply in order to establish whether a worker has suffered a consequential condition as a result of an accepted work injury, namely, that it is necessary to establish that the condition complained of resulted from the accepted s 4 injury. It is apparent from [23] and [24] of the Arbitrator’s reasons and his reference to Moon and Alder that the Arbitrator approached the resolution of the issues before him on that basis.
Nevertheless, as the respondent submits, the appellant carries the onus of establishing that there is an evidentiary basis for a conclusion that the consequential condition results from an accepted work injury.
The appellant failed in the proceedings before the Arbitrator because she failed to satisfy that onus. For the acceptance of Drs Bodel and Witkowski’s opinions it was necessary for the Arbitrator to be satisfied that the evidence established that Ms Lukac was, as a result of her substantially disabled right shoulder forced to rely on and thereby overuse her left shoulder resulting in the left shoulder symptoms. That is essentially the question the Arbitrator set for himself at [25] of the reasons referred to at [66] of this decision. Although it is perhaps somewhat inelegantly framed, the Arbitrator has identified in essence the question posited by Ms Lukac at [122] above.
The Arbitrator was clearly aware that Ms Lukac said in her statement dated 16 August 2015 that over the years she favoured her left shoulder due to the ongoing pain in the right shoulder (see [44] of the reasons) however that evidence was inconsistent with other evidence in relation to Ms Lukac’s activities. In particular it was inconsistent with:
(a)     Dr Lewington’s history that Ms Lukac “frequently lays down and tends to rest during the day. Her daughters do most of her housework etc”;
(b)     Ms Lukac’s own statement dated 16 August 2015 that she is “unable to perform activities that involve lifting or reaching”, that she has “difficulty doing house work and I have to rely a lot on my daughter to do a lot of the house work and to drive me around to medical appointments and the like” and that since the accepted injury “my social activities have decreased significantly and I rarely leave the house”;
(c)     the history recorded by Dr Faithfull that Ms Lukac is “able to carry out her activities of daily living but this is slow. She has two daughters at home aged 41 and 35 and they do the housework”, and
(d)     Ms Lukac’s statement of 27 August 2010 that “prior to my injury I also used to engage in gardening but I can’t do that in the way that I used to. I sometimes pick some strawberries from my garden but I can’t plant and re-plant things like I used to”.
As the Arbitrator correctly noted (at [25]), in order to determine whether Ms Lukac suffered the alleged consequential injury it was necessary to examine the whole of the evidence. That necessitated the Arbitrator having regard to the worker’s own evidence and that disclosed in the medical reports in relation to alleged overuse of the left arm. Ms Lukac’s reduced level of physical activity was relevant to such a determination.
Ms Lukac provided three statements of evidence. She had every opportunity to identify those activities that she claimed led to the condition of her left shoulder. However, she chose to limit her evidence to a vague allegation of favouring the left shoulder “over the years.” Although she was legally represented throughout the proceedings Ms Lukac made no attempt to identify any particular activities that constituted “overuse” or the frequency of such activities.
I reject the submission that the Arbitrator failed to deal with or address the evidence in relation to Ms Lukac’s deteriorating condition in late 2012, 2013 and 2014. The Arbitrator noted (at [50]) Dr Bodel’s evidence in relation to Ms Lukac’s condition steadily deteriorating. Further the Arbitrator accepted that Ms Lukac’s injury to her neck and right shoulder required ongoing specialist treatment (at [25]). The Arbitrator’s reasons contain many references to the histories of Ms Lukac’s ongoing treatment.
The Arbitrator referred to Dr Cordato’s history of chronic neck pain and right shoulder pain in October 2012 noting that she had finally ceased work in May 2012. The Arbitrator also noted Dr Faithfull’s history of ongoing physiotherapy and hydrotherapy without improvement up to 2012.
The Arbitrator’s reasons note Ms Lukac’s submission that the medical evidence supports the finding that she suffered from a serious right shoulder injury and had required specialist treatment, that treatment being ongoing in 2013. It is clear from the Arbitrator’s reasons that he had regard to the fact that Ms Lukac’s left shoulder and neck symptoms were deteriorating significantly by 2014. So much is evident from his discussion of the symptoms reported to Dr Manohar. It follows that I reject the submission that the Arbitrator failed to address the nature and extent of Ms Lukac’s deteriorating work related injuries.
The appellant’s reliance on the histories recorded by Drs Manohar, Witkowski and Bodel as evidence of the fact of overuse although relevant to the Arbitrator’s conclusion was not decisive. Each case must be determined on its own facts. In order to make a factual finding of overuse it was necessary, as the Arbitrator explained (at [78]), to weigh Ms Lukac’s evidence of overuse with all the evidence. The evidence referred to at [132] above militated against a finding in her favour.
Unlike Moon, which proceeded by way of a review of the Arbitrator’s decision as was permitted by s 352(5) as it stood before amendment in 2011, the present appeal is governed by the amended s 352(5) which is characterised by the identification and correction of error. Whether a Presidential member may have formed a different conclusion on the facts is not to the point.
For the reasons referred to above it was open to the Arbitrator to conclude on the balance of probabilities that the alleged “overuse” had not been made out. Once that finding was made the factual basis for the acceptance of the opinions of Drs Bodel and Witkowski fell away.
It follows that this ground fails.

CONCLUSION

Ms Lukac suffered injuries to her cervical spine and right shoulder in an accepted work injury on 4 April 2002. Her subsequent allegation of a consequential condition in the left shoulder depended upon the acceptance of evidence that Ms Lukac was forced to rely on, and thereby overuse, her left shoulder to guard her substantially disabled right shoulder.
Notwithstanding Ms Lukac’s evidence, the Arbitrator was not satisfied that Ms Lukac had discharged the onus of establishing the alleged overuse. On the contrary, the evidence pointed to her adopting a far more sedentary lifestyle than had been the case prior to her accepted work injury and to her reliance upon family members to undertake various household tasks and other activities for her.
The Arbitrator’s findings were open on the evidence presented and no error has been established.

ORDERS

The Arbitrator’s Certificate of Determination of 27 June 2016 is confirmed.

Judge Keating
President

18 November 2016