Marnell v Nugan Quality Foods Pty Ltd - [2011] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Marnell v Nugan Quality Foods Pty Ltd [2011] NSWWCCPD 12
APPELLANT:		Robert Alexander Marnell
RESPONDENT:		Nugan Quality Foods Pty Ltd
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-5277/10
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		17 November 2010
DATE OF APPEAL DECISION:		7 March 2011
SUBJECT MATTER OF DECISION:		Injury; disease; aggravation of disease; s 4 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	McCabe Partners Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 17 November 2010 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND

The appellant worker, Robert Marnell, has worked most of his adult life as a shearer. In mid-2000, he felt pain in both wrists, and pins and needles in the little and ring fingers of both hands. His symptoms increased over time and he sought medical treatment. He last worked as a shearer for T J, M D and A J Smith on 8 August 2006 at Pine Park Station when he felt a complete loss of power in his right hand and was unable to grip the handpiece.
Mr Marnell was diagnosed with carpal tunnel syndrome and certified unfit for work as a shearer. He had surgery on his right wrist on 18 October 2006 and on his left wrist on 22 November 2006. In addition to the symptoms in his wrists and hands, Mr Marnell complained to Dr Ashton, orthopaedic surgeon, of intermittent right shoulder impingement in December 2006. Dr Dyce, general practitioner, certified Mr Marnell fit for his pre-injury duties on 18 January 2007.
Despite the operations, Mr Marnell continued to suffer problems with his wrists and he decided in January 2007 that he would not return to shearing. He claimed compensation against the Smiths in the Commission in proceedings numbered 5320 of 2010.
Between February and July 2007, Mr Marnell worked part-time as a kitchen hand and general handyman at a mining camp in Queensland. He continued to have problems with his hands and was certified unfit by a general practitioner in Queensland from 20 July 2007 until 20 August 2007. He made a claim for compensation on WorkCover Queensland, which was declined.
Mr Marnell returned to New South Wales and started work at Griffith on 3 December 2007 with Nugan Quality Foods Pty Ltd (Nugan), the respondent employer in the present appeal, as a labourer and general hand. His duties initially involved lifting 44-gallon drums onto rollers and conveyers, removing lids from drums using boltcutters, general cleaning work, and driving and operating forklifts, cranes and other equipment.
In May 2008, Mr Marnell complained to his general practitioner, Dr Mahmoodi, of pain in both hands. The doctor certified Mr Marnell fit for light duties only. Those duties included forklift driving, placing plastic liners into drums, filling drums with juice while holding a hose, hosing down and other varied light tasks. Mr Marnell continued to perform light duties until he stopped work in December 2008.
Mr Marnell submitted a claim form on 30 May 2008, in which he alleged that he had suffered a “flare-up of carpal tunnel”. Nugan’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), approved medical expenses on a provisional basis and prepared several injury management plans in an effort to return Mr Marnell to his previous duties.
In a s 74 notice dated 2 December 2008, Allianz denied liability on the grounds that Mr Marnell no longer suffered symptoms consistent with a compensable injury, and that his employment was not a substantial contributing factor to his “current symptoms”.
In an Application to Resolve a Dispute (the Application) (proceedings number 5277 of 2010) registered in the Commission on 2 July 2010, Mr Marnell claimed weekly compensation in the sum of $652.92 from 2 December 2008 to date and continuing, hospital and medical expenses, and lump sum compensation. The Application described the injury as follows:
“Erosive arthropathy of the right and left wrists, together with degenerative changes in the distal interphalangeal joints, injury to [the] right and left shoulders, neck pain resulting from advanced disc degeneration at C6/7 with herniation of the disc into the superior endplate of C7.”
Under “Describe how injury occurred” in Part 4 of the Application, Mr Marnell alleged:
“i) Nature and conditions
Whilst employed by the Respondent from 03.12.2007 to 02.12.2008, the Applicant performed work involving repetitive bending and lifting of heavy weights, the nature and conditions of which caused and/or materially aggravated the injuries particularised below:
*Injury to the left wrist resulting from erosive arthropathy and degeneration
*Injury to right wrist resulting from erosive arthropathy and degeneration
*Injury to left shoulder
*Injury to right shoulder
*Injury to neck resulting in disc degeneration at the C6/7
ii)The disease provisions (ie ss 15 & 16 of Workers Compensation Act 1987)
Arising out of or in the course of the Applicant’s employment as a labourer, he has contracted degeneration of his left and right wrists leading to carpal tunnel syndrome and left and right shoulders, being a disease of such a nature as to be contracted by a gradual process to which such employment as a labourer was a substantial contributing factor.
For a number of years prior to the 02.12.2008 the Applicant was employed in the labouring industry and this type of employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and/or degeneration:
*Injury to the left wrist resulting from erosive arthropathy and degeneration
*Injury to right wrist resulting from erosive arthropathy and degeneration
*Injury to left shoulder
*Injury to right shoulder
*Injury to neck resulting in disc degeneration at the C6/7
The Respondent was the last employer of the Applicant in such employment to the nature of which the disease condition is and was due.”
In a Reply filed on 23 July 2010, Nugan relied upon the s 74 notice referred to above and sought to dispute 19 additional matters. The Commission has repeatedly criticised replies that attempt to dispute every conceivable matter, regardless of the real issues. This practice must stop. The Arbitrator succinctly summarised the additional matters in dispute as follows:
“(a)that the applicant did not receive an injury to his cervical spine or either shoulder during employment with the respondent;
(b)that the applicant did not give notice of any injury to the cervical spine or either shoulder within the timeframe stipulated by the Act or before he voluntary [sic] left the employment;
(c)that the applicant’s employment with the respondent was not a substantial contributing factor to any alleged injury;
(d)that the applicant’s employment with the respondent was not a contributing factor to a disease of gradual process, and
(e)that the respondent was not the last employer of the applicant in any employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of such disease.”
The Arbitrator gave Nugan leave to rely upon the additional grounds identified above. Neither party has challenged this statement of the issues.
In an Application to Admit Late Documents filed on 7 October 2010, Nugan’s solicitors referred to a teleconference on 6 August 2010 where Mr Marnell’s solicitor, Mr McCabe, “clarified that the claim against the respondent was for the shoulders and cervical spine”. As a result, Allianz issued a further s 74 notice on 7 October 2010, in which it disputed that Mr Marnell had injured his shoulders or cervical spine.
The Commission listed both of Mr Marnell’s claims (the claim against the Smiths and the claim against Nugan) for conciliation and arbitration at Griffith on 14 October 2010. Whilst the Arbitrator heard the claims concurrently, the parties did not apply to have the proceedings consolidated or to have the evidence in one accepted as evidence in the other. The claims could not be resolved and they proceeded to arbitration. There was no application by any of the parties to adduce oral evidence and the arbitration proceeded with lengthy submissions.
In respect of the claim against the Smiths, the Arbitrator delivered a reserved decision on 8 November 2010 in which he stated (at [21]):
“The applicant has commenced separate proceedings in matter number 5277/10 against Nugan Quality Foods Pty Ltd. These matters initially came to my attention when I conducted a telephone conference in matter 5277/10 on 6 August 2010. Mr McCabe advised both me and Ms Lawrence, the solicitor for the respondent, that the matters were discrete as the claim against the present respondent was in relation to the applicant’s hands and wrists, whereas the claim against Nugan was in relation to the applicant’s neck and shoulders. Mr McCabe stated that the respondent was the last relevant employer for the purposes of the disease provisions in relation to the claim by the applicant for injury to his hands, whereas Nugan was the last relevant employer in relation to a claim under the disease provisions for the applicant’s neck and shoulders.”
The Arbitrator found that Mr Marnell suffered injury to both his hands and wrists in the course of his employment as a shearer prior to 8 August 2006, and that such injury was a disease contracted in the course of his employment as a shearer and to which his employment had been a contributing factor. He found (at [41]) that it was “unlikely that the Applicant suffered further injury to his carpal tunnel syndrome in the work at Nugan”. He also thought it unlikely that the employment at Nugan was work to the nature of which the disease of carpal tunnel syndrome was due. He concluded that the notes from Mr Marnell’s treating general practitioner, Dr Mahmoodi, led “overwhelmingly” to the view that Mr Marnell suffered rheumatoid arthritis or some related inflammatory condition of the hands whilst working at Nugan. He was not satisfied that Mr Marnell had suffered a recrudescence of his carpal tunnel syndrome at Nugan and concluded that the worker’s last employment to the nature of which his disease of carpal tunnel syndrome was due was his work as a shearer with the Smiths.
The Arbitrator found that Mr Marnell had not recovered from the disease injury he received whilst working with the Smiths and that that injury incapacitated him and entitled him to an award of weekly compensation at various rates from 18 January 2007 until 1 January 2010, and at the rate of $160 per week from 2 January 2010 to date and continuing. Neither party has appealed this decision.
In respect of the claim against Nugan, the Arbitrator delivered a reserved decision on 17 November 2010. Despite the statement by the worker’s solicitor at the teleconference on 6 August 2010 (that the claim against the Smiths was a discrete claim for carpal tunnel syndrome and the claim against Nugan was a discrete claim in respect of the neck and shoulders), counsel for Mr Marnell, Ms Dulhunty, wished to rely upon the alleged injury to the worker’s hands and wrists as pleaded in the Application (Statement of Reasons (Reasons) at [35]). Notwithstanding that statement, Ms Dulhunty did not accept the Arbitrator’s invitation to argue that the worker had an arthritic condition in his hands partly because of his work with Nugan (Reasons at [38]). Rather, she argued that, consistent with Mr McCabe’s statement at the teleconference on 6 August 2010, Mr Marnell sought compensation from Nugan as a result of an alleged injury to his neck and shoulders received whilst working for that company. The Arbitrator did not accept that argument and made an award for the respondent.
In an appeal lodged on 10 December 2010, Mr Marnell seeks leave to challenge the Arbitrator’s determination of 17 November 2010.

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Monetary threshold

It is not disputed that the monetary thresholds in s 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

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.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 17 November 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
1. Award for the respondent.”

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Mr McCabe seeks to rely upon a report from Dr Ashton dated 12 December 2006 as fresh evidence or additional evidence on appeal. He submitted that Dr Van Der Rijt, orthopaedic surgeon qualified by the insurer, referred to it and it had not been given to the worker in response to a notice to produce served on Nugan.
Nugan opposes the introduction of Dr Ashton’s report on appeal. It submitted that the report should not be admitted because it was available to Mr Marnell prior to the filing of the Application. That Mr Marnell’s solicitor made a forensic decision “not to either seek records from that doctor or serve records from that doctor prior to the hearing” was not justification for admissibility of further evidence on appeal. Further, the document would have no effect on the outcome of the appeal.
It is regrettable that Nugan’s solicitor has not answered the allegation made by Mr McCabe, namely, that Nugan failed to produce the report in response to a notice to produce. I can only conclude that the allegation is correct. On the other hand, it unclear when or how Mr McCabe obtained Dr Ashton’s report and Mr McCabe’s submissions on this point are most unsatisfactory. Given that Dr Van Der Rijt, orthopaedic surgeon qualified by Allianz, referred to Dr Ashton’s report in his evidence, I believe, not without considerable hesitation, it is in the interests of justice that it be admitted on appeal.

EVIDENCE

Mr Marnell

Mr Marnell’s evidence is set out in a 53-page statement dated 7 September 2009. The first 36 pages of that statement relate exclusively to his work as a shearer and the symptoms he developed in the course of that work. He said that he suffered a shoulder injury in the mid-1990s, while working as a shearer in Queensland. He recovered from that injury in about six weeks and returned to shearing. He also received an infection in his right hand whilst working as a shearer in Queensland, which required him to be hospitalised for one week. He recovered from that infection and returned to shearing.
Mr Marnell saw Dr Ashton in December 2006 for his wrists. The doctor also examined the worker’s right shoulder and diagnosed a right shoulder impingement in the rotator cuff. Mr Marnell said that he decided to stop shearing because of the pain in his wrists and shoulders.
Mr Marnell started work at Nugan as a general labourer in December 2007. He moved about 180–200 drums per day and used boltcutters. He said that on 30 May 2008, while using boltcutters for an extended period, he suffered “a re-aggravation of bilateral carpal tunnel syndrome in both wrists”. He sought treatment from Dr Mahmoodi and was certified fit for light duties, with a lifting limit of 5 kg.
Mr Marnell completed a claim form on 30 May 2008, in which he described his injury as “flare-up of carpal tunnel”. The claim form referred to his previous surgery and described the parts of the body injured as “right & left”. It made no mention of any neck or shoulder symptoms.
Mr Marnell’s statement has referred extensively to Dr Mahmoodi’s certificates. He said that Dr Mahmoodi diagnosed his injury “as a result of lifting heavy items”, and that he felt that employment had been a substantial contributing factor to the injury. He said that Dr Mahmoodi continued to provide him with certificates for light duties, with a lifting restriction up to 5 kg.
Mr Marnell remained on light duties until he resigned in December 2008 after Nugan withdrew those duties on 2 December 2008.
The worker saw Karen Heath, occupational therapist with the Rehabilitation Company Pty Ltd (RehabCo), in August 2008. He told Ms Heath that he was “still feeling tightness” in both of his hands, especially in the mornings. He made no mention to her of any pain or symptoms in his neck or shoulders.
Mr Marnell said he received various letters from his employer that stated he had been observed performing activities outside the restrictions placed on him and that he should not do so.
Mr Marnell’s evidence consists of his summary of the medical evidence, of certain letters from Nugan, and reports from RehabCo. Apart from the references to shoulder pain referred to in the 1990s and in 2006, Mr Marnell’s statement said nothing about him having shoulder symptoms or neck symptoms while working for Nugan.

Medical evidence

Dr Mahmoodi first saw the worker on 30 May 2008, when he took a history of the worker’s previous carpal tunnel syndrome. The doctor issued a WorkCover certificate, certifying Mr Marnell fit for suitable duties, with a lifting restriction up to 5 kg because of “pain on [sic] both hands”.
Dr Mahmoodi’s diagnosis changed to “carpal tunnel hand pain” in his certificate of 30 July 2008 and to “Rheumatoid Arthritis with hand pain” in his certificate of 20 November 2008. In the November certificate, the doctor did not indicate if employment was a substantial contributing factor to the rheumatoid arthritis, but said, “as we discussed with orthopaedics, the problem of rheumatoid arthritis is aggravated by employment”. None of Dr Mahmoodi’s certificates referred to neck or shoulder symptoms.

Dr Mahmoodi certified Mr Marnell fit for pre-injury duties on 5 December 2008.
Dr Mahmoodi’s clinical notes are consistent with his WorkCover certificates. He saw the worker on more than 30 occasions between May 2008 and July 2010. On 30 July 2008, the doctor noted that Mr Marnell was in severe pain and could not “fist the [right] hand” because of swelling. There was also tenderness around the wrist and fingers. The worker again complained to Dr Mahmoodi of swelling in his fingers on 1 September 2008. The doctor requested pathology tests for, among other things, “rheumatoid factor”.
On 5 September 2008, Dr Mahmoodi discussed the results of the blood tests and recorded “RF and ESR is high”. The context of this entry makes it clear that “RF” stands for “rheumatoid factor”. The notes also record “discussion about Rheumatoid arthritis and its side-effect on carpal tunnel”. Dr Mahmoodi referred the worker to Dr Frawley, orthopaedic surgeon.

Dr Frawley examined the worker on 11 September 2008. His examination revealed the worker’s fingers to be swollen and his wrists to be stiff. However, his elbows and shoulders demonstrated “normal movement”. Significantly, Dr Frawley did not refer to the worker suffering any neck or shoulder symptoms.
A nerve conduction report by Dr Ring dated 11 September 2008 revealed evidence of moderate bilateral median neuropathy at the wrist, worse on the left.
At review on 15 September 2008, Dr Frawley noted that the worker continued to complain of weakness and numbness in his hands. His grip was quite weak, but there was no irritability of the median nerve. Dr Frawley said that Mr Marnell’s presentation was “not strongly suggestive of recurrent carpal tunnel syndrome”. He referred Mr Marnell for neck x-rays and recommended physiotherapy and anti-inflammatory medication, and a reduction in smoking.
The worker saw Dr Mahmoodi on 25 September 2008. The doctor’s notes record:
“Has had a burning pain on neck and hands and swelling of neck.
Has had a very bad pain and tightness more at [sic] last night.
On exam:
Some swelling on the spins [sic] process C7.
Hands is [sic] much better now.”
On 7 October 2008, Dr Frawley again examined Mr Marnell and stated that the neck x-ray looked “okay”. The hand x-rays showed soft tissue swelling of the fingers. Dr Frawley felt that the problem was “mainly that of early arthritis in his fingers”.
Mr Marnell saw Dr Mahmoodi on several occasions in October 2008, complaining of pain and stiffness in his fingers and hands.
On 5 November 2008, the worker attended on Dr Mahmoodi, complaining of swelling in both hands, more in the left hand, and that he felt “pain and swelling” in his neck. On examination, the neck spinous process of C6 was more prominent and tender.
Dr Van Der Rijt examined Mr Marnell on 10 November 2008. In his report of 26 November 2008, he recorded that the worker developed symptoms in both arms, which he attributed to using boltcutters to cut quarter-inch or half-inch bolts from up to 180 drums per day. The doctor added:
“The patient reports after working in this fashion that the palms of both hands became sore and that he would develop numbness in the hands at night. The numbness involved the fingers of the right more than the left hand. He believes the little finger possibly is not involved in the numbness and he thinks the index and middle fingers may be the most involved. The back or dorsal side of the hands would ‘blow up’ with swelling. When he got up in the morning the fingers would be stiff and it was difficult to move and flex the hands.” (emphasis added)
Nugan put Mr Marnell on light duties that did not involve using boltcutters or lifting objects greater than 10 kg in weight.
Dr Van Der Rijt recorded the worker’s current complaints to be that his fingers would not flex and he was unable to oppose the thumb to the tip of the little finger. Critically, on specific questioning, Mr Marnell did not “have any history of neck pain or other neck symptoms” or “any symptoms involving the proximal aspect of the arms” (emphasis added). However, Mr Marnell said that there was some swelling in his neck that tended to occur “simultaneously with hand swelling”. Mr Marnell referred to the base of his cervical spine as the “swelling”. Later examination revealed a “normal prominence of the 7^th cervical spinus [sic] process”. Mr Marnell felt that there was “some consistency”, as applying pressure to the boltcutters “could relay pressure up the arms to the back of the neck”. When questioned further, Mr Marnell “was advised problems may arise from the cervical spine and he thought a cervical spine problem could arise because of the pressure applied to the neck, by the arms when he was using boltcutters”.
After noting the worker’s history of previous bilateral surgery for carpal tunnel syndrome, the doctor referred to the letter from Dr Ashton of 12 December 2006, which referred to intermittent right shoulder impingement. He recorded that, at the time of his examination, Mr Marnell worked on selected duties and that he considered his symptoms were improving. He had not returned to using boltcutters, but drove a forklift and moved drums of concentrate on and off pallets. Mr Marnell conceded that he had “broken some of the commitments” that he made to the rehabilitation providers and that that tended to be associated with “tightness and stiffness in the fingers” (emphasis added).
On examination, the area of “swelling” of the cervical spine was the normal prominence of the seventh cervical spinous process, with no additional swelling in the region. There was no cervical spine deformity or tenderness. There was normal movement of the shoulders and there was no evidence of muscle wasting, deformity or asymmetry of the hands. There was, however, tenderness of the fingers. Dr Van Der Rijt felt that the x-ray of the cervical spine dated 19 September 2008 was “unremarkable”, but there was a mild degree of disc space reduction and lipping at the C6/7 level consistent with mild spondylosis.
Dr Van Der Rijt reached no specific diagnosis. The worker’s principal complaint, and physical finding, was generalised stiffness of the fingers. X-rays and blood tests did not provide evidence of a specific osteoarthritis or inflammatory arthropathy. The doctor felt it unlikely that Mr Marnell had an inflammatory arthropathy, such as rheumatoid arthritis. He said it was common for patients who undertook a lifetime of heavy physical work to develop diffuse soft tissue thickening associated with restriction of movement of their joints and that this was the most likely diagnosis for Mr Marnell. The doctor added:
“That is, the patient suffers from finger stiffness arising as a consequence of his age, his lifetime of heavy physical work and it is unlikely that he suffers from any specific post traumatic or inflammatory arthropathy producing the joint stiffness. His prognosis is for his stiffness to continue to some degree.” (emphasis added)
He said that the worker’s employment with Nugan had not been a substantial contributing factor to his hand stiffness. Whilst heavy physical use of the hands may be associated with transient swelling and secondary stiffness, those symptoms would settle within two to three days of cessation of the activity. The long-term stiffness (of the fingers) related to the worker’s age and his history of use of his hands. The worker’s condition was “essentially one of natural age related degeneration” and was not related to his work duties. This statement clearly relates to Mr Marnell’s fingers, not his neck or shoulders.
The worker saw Dr Mahmoodi again on 10 March 2009, when the doctor recorded the following in his clinical notes:
“Trauma to L shoulder after a fall at home.
On exam:
L shoulder is normal in appearance.
No swelling; some limitation of movement of L shoulder.
For a certificate and medication.
He has stopped the methotrexate with his lawyer [sic] advise [sic]”
On 18 April 2009, Dr Mahmoodi recorded that the worker still had stiffness in his hand and arms. There was tenderness and stiffness in both hands. Dr Mahmoodi arranged for a CT scan of the cervical spine.
A CT scan of the cervical spine dated 24 April 2009 revealed advanced disc degeneration at C6/7 with herniation of the disc into the superior end plate of C7. There was no spinal canal stenosis, foraminal stenosis or neural compression or facet joint arthropathy. Though there was sclerosis adjacent to the invaginated disc, the margins were slightly ill-defined, raising the small possibility of discitis.
The worker saw Dr Mahmoodi again at the end of May 2009 and on 25 June 2009. At the June attendance, Dr Mahmoodi recorded:
“Still sore wrist and arms.
Shooting pain and numbness of R and L arm.
More stiffness in the morning.”

Dr Mahmoodi recorded a complaint of back pain and stiffness on 4 July 2009.
On 27 August 2009, Dr Mahmoodi recorded that the worker was the “same as before, no new changes”. He still had stiffness and pain and was unable to make a fist. The doctor added in his notes “has had a couple of times heavy numbness of R shoulder and arm”. Examination revealed swelling and limitation of movement of both hands, as before.
Mr Marnell saw Dr Dixon, orthopaedic surgeon, at the request of his solicitor on 5 November 2009. In his report of 10 November 2009, Dr Dixon took the following history:
“On 11 September 2008 he had further nerve conduction studies which showed moderate bilateral median neuropathy at the wrist more marked on the left. It was submitted that his work with Nugant [sic] Quality Foods had caused further injuries to the wrist and the recurrent carpal tunnel syndrome bilaterally with the deemed date of injury being 2 December 2008. After working for Nugant [sic] he developed pain in his shoulders and neck. In the course of his duties he had to use long handled bolt cutters to remove rings from drums and had to pull himself by a pole on and off a forklift repeatedly. He sustained neck and shoulder strain injuries. The claimant feels that he has more marked weakness now on the left and has stiffness of both shoulders slightly more marked on the right and pain and stiffness in his neck. He has not been able to work since 2 December 2008.” (emphasis added)
Under “work history”, Dr Dixon recorded that the worker had to stop shearing after his carpal tunnel problems. At Nugan, he had to move around 180 to 200 drums a day and use boltcutters for extended periods, which re-aggravated his carpal tunnel syndrome. Dr Dixon added:
“As a result of lifting the heavy drums and using the bolt cutters, his bilateral carpal tunnel flared up again and he developed pain in both shoulders and his neck. He was able to resume forklift driving and crane operation and assistant spear operation duties as well as miscellaneous cleaning. He changed to lighter duties with some forklift driving placing plastic liners in drums and holding hoses to fill drums with juice, applying and taking off lids without the use of bolt cutters, hosing down and miscellaneous tasks but had ongoing pain and stiffness in his hands with decreased strength. He had to avoid using bolt cutters and repetitive tasks and lifting over 5 kg. He subsequently had [a] review by a neurologist in September 2008 which confirmed bilateral median neuropathy at the wrist more marked on the left. He subsequently attended an upper limb surgeon in Albury for swollen hands and digits and wasting of the thumb muscles and continued on light duties and had radiological investigation and physiotherapy treatment. He was certified fit for suitable duties with a lifting restriction of 5 kg and had to rotate postural tasks to minimise symptomatic aggravation and had to avoid overreaching with both arms. He was eventually offered sustained suitable duties at Nugant [sic] Quality Foods but was terminated on 18 December 2008 having worked there from 3 December 2006 to 16 December 2008. He is not working at present.”
When he saw Dr Dixon, Mr Marnell’s symptoms were pain and stiffness in his neck, particularly on looking to the left, pain and stiffness in both shoulders, more marked on the right, pain in both wrists, with residual paraesthesia, and weakness of the thenar power and grip strength. His neck symptoms disturbed his sleep and he had difficulty sleeping on either shoulder. His neck locked-up on occasion and he had difficulty sitting at his computer for more than 40 minutes.
On examination, Dr Dixon noted stiffness in the worker’s cervical spine, with asymmetrical loss of range of motion. Lateral rotation to the left was decreased by one-third and to the right by one-quarter. Lateral flexion to the left was decreased by one-half and to the right by one-third, as was neck extension. There was tenderness of the lower cervical facet joints and both trapezius muscles. There was a limitation of the range of motion of both shoulders, with abduction on the right being 90 degrees and on the left being 110 degrees. There was 1 cm of wasting in the right arm. Triceps jerks were difficult to elicit, but biceps jerks and supinator jerks were present. There were sensory changes in the little and ring fingers of both hands and mild tenderness at the ulnar nerves in both elbows.
Under “summary of injuries and diagnoses”, Dr Dixon concluded that Mr Marnell had bilateral carpal tunnel syndrome “as a result of shearing”. The worker had not been able to lift heavy furniture due to significant weakness of grip strength in both hands, together with pain and stiffness in his shoulders and neck “which he injured while working for Nugant [sic] Foods using bolt cutters and hopping on and off a forklift”. Dr Dixon added:
“Clinically he has residual subacromial bursitis in both shoulders with post traumatic stiffness and has aggravated C6/7 cervical spondylosis with residual lower cervical facet arthralgia, neck stiffness with asymmetrical loss of range of motion with impaction on activities of daily living, difficulty turning his head while driving and his neck pain disturbs his sleep. He has mild radicular complaint with minor compressive features in both upper limbs.”
Dr Dixon said that Mr Marnell’s work had “aggravated his C6/7 spondylosis which is ongoing”. On the issue of causation, Dr Dixon said:
“His employments have been substantial contributing factors to his injuries sustained with shearing being related to his bilateral carpal tunnel syndrome and his factory hand duties and forklift driving being associated with neck and shoulder conditions.”

Rehabilitation reports

Ms Heath reported under RehabCo’s letterhead on 6 August 2008. She took a history that Mr Marnell had suffered a re-aggravation of bilateral carpal tunnel syndrome on 30 May 2008 whilst using boltcutters for an extended period of time at work. Mr Marnell advised that he was right hand dominant and that he had good sensation/feeling in both of his hands and arms. Ms Heath observed him to have a full active range of movement in both upper extremities and hands. The worker complained of feeling tightness in his hands, especially in the morning. He made no complaint of neck or shoulder symptoms.
RehabCo prepared a suitable duties plan on 25 August 2008 where the worker’s functional limitations were noted to be:
“•    Ongoing pain and stiffness in bilateral hands
·        Reduced functional capacity of bilateral hands including limited active range of movement and decreased strength
·        Physically demanding nature of pre-injury duties”. (emphasis added)
Ms Heath recommended that Mr Marnell avoid using boltcutters, carrying out repetitive tasks that put increased exertion on his hands, wrists or arms, and lifting over 5 kgs. He was also to avoid reaching with his upper extremities and to use safe manual handling principles when lifting and carrying. The suitable duties to be performed included:
“ —    Forklift driving
·        Placing/holding liners in drums
·        Holding [a] hose to fill drums with juice
·        Applying/taking off lids (no bolt cutters)
·        Hosing down
·        Miscellaneous cleaning tasks”
In her “closure report” dated 5 December 2008, Ms Heath said that she attended with the worker on Dr Mahmoodi on 5 September 2008 when the doctor advised, “blood work revealed that Mr Marnell has Rheumatoid Arthritis”. Due to that diagnosis, Dr Mahmoodi said he felt the “injury may not be work related but he was not certain and recommended continuation of the nerve conduction test as well as a specialist review to further investigate”. Dr Frawley conducted that review in September 2008. In addition, the worker saw Dr Sturgess, rheumatologist at Griffith Base Hospital, on 19 November 2008.
After examination by Dr Van Der Rijt on 10 November 2008, Allianz denied liability and RehabCo closed its file.

ISSUES IN DISPUTE

The issues in dispute are whether the Arbitrator erred in:
(a)     failing to give proper consideration to the worker’s uncontradicted evidence as to his duties, which were relatively physical and sometimes “extremely heavy”;
(b)     assuming that the worker’s solicitor was in possession of reports from Dr Mahmoodi, but did not tender those reports;
(c) considering whether Mr Marnell suffered a frank injury when he had never pleaded such an injury to his neck and shoulders, but merely relied on the “nature and conditions of his employment”, and the disease provisions in ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act);
(d)     finding that, apart from the evidence from Dr Dixon in his report of 10 November 2009, there was no medical evidence to support the contention that Mr Marnell suffered a neck injury in the course of his employment with Nugan;
(e)     making a finding on credit that Mr Marnell did not suffer symptoms associated with his work duties when he said he did;
(f) failing to consider the worker’s duties and the medical evidence “regarding the contribution of such duties to any disease process” and failing to “engage ss 15 and 16 of the 1987 Act”;
(g)     failing to apply the “appropriate legal test” in considering the “disease” allegations (Austin v Director General of Education (1994) 10 NSWCCR 373 (Austin));
(h)     failing to consider the relevance and impact of Dr Dixon’s undisputed evidence, and
(i)      failing to make an award for Mr Marnell.

SUBMISSIONS, DISCUSSION AND FINDINGS

Whilst Mr McCabe’s submissions have not expressly abandoned the allegation in the Application of injury to the left and right wrists, he has only referred to the alleged injury to Mr Marnell’s shoulders and neck. He has not challenged the Arbitrator’s statement (at [55]) that:
“As the applicant’s counsel did not seek to pursue a claim in respect of the condition of [Mr Marnell’s] hands at the arbitration it is unnecessary to finally resolve this conflict. Similarly it is unnecessary to determine whether the applicant’s work was a substantial contributing factor to such a condition.”
The conflict the Arbitrator referred to was whether the condition in the worker’s fingers and hands had been caused by rheumatoid arthritis or some other condition.
Mr McCabe submitted that the worker’s duties “caused the symptoms of and restrictions emanating from his cervical disc disease and rotator cuff injuries in the shoulders, to become more serious” and that that aggravation was an injury within the meaning of s 4 of the 1987 Act. He quoted various passages from the evidence that he said established that Mr Marnell’s duties up to the end of May 2008 were demanding and included lifting 44-gallon drums onto rollers and conveyors. He has also relied on evidence from Nugan to the effect that Mr Marnell did not comply fully with his restricted duties program after 30 May 2008. He said that there was a “direct correlation” between the worker’s attendances on the medical practitioners and the doctors’ medical reports tendered in support of the claim.
He referred to [39] of the Arbitrator’s decision, where the Arbitrator referred to the worker having quoted from material extracted from medical reports and said that, surprisingly, there were no reports tendered from Drs Reimers, Bookless or Mahmoodi in circumstances where it seemed likely that the worker’s solicitor “possessed their reports”. Though he did not expressly say so, I infer from Mr McCabe’s submissions that he tendered all reports in his possession. He submitted that no adverse finding could be made with regard to the provision of “medical certificates from the general practitioner”.
It was argued that the Arbitrator erred in considering whether or not Mr Marnell “suffered a frank injury”, because the worker had not pleaded any frank injuries to his neck and shoulders, but relied upon the nature and conditions of his employment or, more importantly, upon the disease provisions in ss 15 and 16 of the 1987 Act.
Mr McCabe next submitted that the Arbitrator incorrectly found that, apart from the evidence from Dr Dixon, there was no medical evidence to support the contention that Mr Marnell had suffered a neck injury in the course of his employment with Nugan. He said that the Arbitrator had effectively made a finding of credit that Mr Marnell did not suffer symptoms associated with his work duties when he said he did.

It was submitted that the Arbitrator (wrongly) determined that, if Mr Marnell had complained about his neck and arm, there would have been recorded complaints. This presupposes, it was submitted, that Mr Marnell would have been aware that the “nature and conditions” of his work with Nugan caused or were contributing factors to the degenerative condition in his cervical spine and rotator cuff problems in both shoulders, and that the injury was a compensable injury. It also presupposed that Mr Marnell would have been aware such a contributing factor was occurring (if it was). Mr McCabe submitted that it was unreasonable to expect the worker to be in a position to be aware of such matters and to hold it against him “if injury reports and the like are not documented”.
To succeed on “injury”, Mr McCabe submitted that Mr Marnell only needed to prove that his employment was a substantial contributing factor to a disease, or the aggravation, acceleration, exacerbation and/or degeneration of the disease. This required a consideration of Mr Marnell’s duties and the medical evidence regarding the contribution of such duties to any disease process. Though the Arbitrator referred to the allegation of injury within ss 15 and 16, it was submitted that he failed to “engage these provisions”.

Mr McCabe submitted that a judge faced with the potential application of the “disease” provisions should ask the following questions (Austin at 378B):
“(a) was the applicant suffering from a disease?
(b) if so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c) if so, was her (his) employment a contributing factor?
(d) if so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”
Mr McCabe said that the Arbitrator’s failure to apply the appropriate legal test in considering the “disease” allegations demonstrates an error of law and he has requested that the matter be remitted to another Arbitrator for redetermination or, alternatively, that the Presidential member hearing the appeal re-determine the matter. He submitted that the matter could be re-determined by a Presidential member because Mr Marnell was not cross-examined and his evidence was not contradicted.
It was also submitted that Mr Marnell’s employment with Nugan caused an increase in vulnerability to “posteriorly induced pain” and a “decrease in the ability to recover from it”. He said that the “various diseases in the neck and shoulders continued to manifest symptoms of the injuries until the Appellant/Employee had to cease his employment with the Respondent on the 02.1.2008”.
I do not accept these submissions.
First, the submission that Mr Marnell’s duties with Nugan caused the symptoms of and restrictions emanating from his cervical disease and rotator cuff injuries to his shoulders to become more serious is not supported by the evidence. Mr Marnell did not complain of neck symptoms prior to the note made by Dr Mahmoodi on 11 September 2008 and did not complain of shoulder symptoms until much later. I am satisfied, as was the Arbitrator, that the complaints were not related to the worker’s duties with Nugan.
I base my finding on the objective and contemporaneous medical reports from Dr Frawley, and Dr Mahmoodi’s WorkCover certificates and clinical notes. Those documents not only do not support Mr Marnell’s assertion that he suffered an aggravation injury (or any injury), but are strongly against it. Whilst Dr Mahmoodi referred to neck pain and swelling in his notes on 25 September 2008 and 5 November 2008, he had a “long discussion” with the worker on 20 October 2008 to explain that the problem was “arthritis not carpal tunnel or [a] neck problem”. Dr Mahmoodi then arranged for the worker to see a rheumatologist. Mr Marnell complained to Dr Mahmoodi of neck symptoms when he was working on light duties. Dr Mahmoodi did not suggest (either in his certificates or in his clinical notes) that Mr Marnell developed neck symptoms in the course of or as a result of his duties with Nugan.
When Mr Marnell submitted his claim form on 30 May 2008, it made no mention of any neck or shoulder symptoms, but merely referred to a “flare-up of carpal tunnel” and to the body parts that were injured being “right & left” (wrists). The worker’s claim form was consistent with Dr Mahmoodi’s WorkCover certificates, which did not refer to the neck or shoulders.
Perhaps of greater significance is that fact that the worker made no mention at all in his 53-page statement of experiencing symptoms in his shoulders and neck as a result of his duties with Nugan. His only reference to shoulder symptoms related to the shoulder injury he sustained in the 1990s and to the symptoms noted by Dr Ashton in his report of 12 December 2006.
The submission that there is a “direct correlation” between Mr Marnell’s attendances on the medical practitioners and the medical reports tendered in support of the (neck and shoulder) claim is incorrect. There is a direct correlation between Mr Marnell’s complaints to Dr Mahmoodi about his hands and the doctor’s certificates, which only referred to hand symptoms. However, that is not Mr Marnell’s claim against Nugan. There is no correlation between Mr Marnell’s attendances on Drs Mahmoodi and Frawley, and Dr Dixon’s opinion that the worker suffered neck and shoulder strains as a result of using boltcutters and having to pull himself on and off a forklift repeatedly.
Second, whilst the Arbitrator may have erred in suggesting that there were reports from Drs Reimers, Bookless and Mahmoodi in Mr McCabe’s possession, that error was not critical to the outcome. On review, I draw no adverse inference from the failure to tender evidence from these doctors. I accept that Mr Marnell’s references to statements by Dr Mahmoodi were references to Dr Mahmoodi’s WorkCover certificates and that those certificates are in evidence. The only other evidence from Dr Mahmoodi is in his clinical notes, a handwritten facsimile transmission the doctor sent to Allianz on 4 June 2008 and a referral to Dr Frawley dated 18 August 2008. The Arbitrator referred extensively to the doctor’s notes. The handwritten report does not provide the worker with support for his allegation that he received an aggravation injury (or any injury) to his neck and shoulders with Nugan because, consistent with the doctor’s initial certificates, it diagnosed Mr Marnell to have carpal tunnel syndrome and made no mention of neck or shoulder symptoms.
Third, both the Application and Mr McCabe’s submissions on appeal identified two potential injuries. The first was a “personal injury” alleged to have been caused by the “nature and conditions” of Mr Marnell’s employment from 3 December 2007 until 2 December 2008 (Part 4 (i) of the Application and paragraph 3 of Mr McCabe’s submissions on appeal). In the alternative, the Application placed reliance upon “the disease provisions” (Part 4 (ii) of the Application and paragraph 4 of Mr McCabe’s submissions on appeal).
Both the pleadings and the submissions made it clear that the Arbitrator was called upon to determine whether Mr Marnell had received a personal injury within the terms of s 4(a) of the 1987 Act, or, in the alternative, a disease injury under s 4(b)(i) or s 4(b)(ii). That is what he did. He did not make any finding on whether Mr Marnell had received a “frank injury”, as Mr McCabe has submitted. Even if the Arbitrator erred in determining that Mr Marnell had not received a “personal injury”, because, according to Mr McCabe, no such injury was alleged, that is of no consequence because he carefully considered and rejected the alternative arguments under the disease provisions.
Fourth, the Arbitrator did not err when he said that, apart from the evidence from Dr Dixon, there was no medical evidence that supported the contention that Mr Marnell suffered a neck injury in the course of his employment. The Arbitrator’s statement was perfectly accurate and Mr McCabe has not referred to any evidence to suggest the contrary. Dr Mahmoodi’s reference to neck pain and swelling in September and November 2008 does not establish an aggravation injury, or any other injury. Dr Van Der Rijt found no swelling at his examination in November 2008 and, given his specific history that Mr Marnell did not “have any history of neck pain or other neck symptoms” or “any symptoms involving the proximal aspect of the arms”, I find his opinion and findings persuasive.
I do not accept that the Arbitrator “effectively” made an adverse finding of credit against Mr Marnell. He recorded that Dr Dixon’s assertion that the worker suffered neck and shoulder strains as a result of using boltcutters and having to pull himself on and off a forklift repeatedly was not consistent with the opinion of Dr Frawley or the notes from Dr Mahmoodi. That observation was perfectly accurate and I agree with it. It was also not consistent with the worker’s evidence in his statement.
Fifth, the Arbitrator was entitled to observe that, if Mr Marnell had complained about his neck and arm, there would have been records to that effect. It was not a question of whether Mr Marnell would have been aware that the nature and conditions of his work caused or contributed to the degenerative condition in his neck and/or problems in his shoulders, but whether he experienced symptoms in those parts of his body when he worked for Nugan. Mr McCabe’s submission that the worker “was always concerned for his carpal tunnel syndrome problems in both wrists” may well be correct, but that does not overcome the clear evidence in Dr Mahmoodi’s notes, Dr Frawley’s reports and, most important of all, the lack of any relevant complaint of neck and shoulder symptoms in Mr Marnell’s statement.
Sixth, I do not accept that the Arbitrator failed to apply the appropriate legal test in considering the disease allegations and failed to “engage” the disease provisions, as Mr McCabe has submitted. The Arbitrator carefully reviewed the evidence and correctly noted that a history of injury contained in a medical report can be received as evidence of the fact by reason of the operation of s 60 of the Evidence Act 1987, but “the absence of direct evidence from the applicant of the circumstances in which he suffered neck and shoulder injury does nothing to advance his case” (Reasons at [61]). This conclusion is compelling and I agree with it.
Whilst Dr Dixon referred to the worker having developed neck symptoms whilst using boltcutters, that history is not supported by the contemporaneous clinical notes from Dr Mahmoodi nor the reports from Dr Frawley. Dr Mahmoodi did not record neck symptoms until September 2008, but the worker did not use boltcutters after 30 May 2010. There is no evidence in any of the documents that came into existence in May, June, July or August 2008 that the worker had neck symptoms or that he received a neck injury, be it an aggravation injury under s 4(b)(ii) or any other injury, as a result of using boltcutters.
With respect to the worker’s shoulders, the Arbitrator correctly observed that Dr Frawley reported that the worker’s shoulders demonstrated “normal movement” on 11 September 2008. He also noted that there were no tests, such as x-rays or ultrasounds of the shoulders, to which one might refer when considering whether to accept Dr Dixon’s conclusion. In the absence of such tests, the Arbitrator found it difficult to understand the basis on which Dr Dixon reached his opinion. I agree with this conclusion.
In the absence of any contemporaneous evidence of shoulder symptoms in Dr Mahmoodi’s notes between December 2007 and December 2008, and in the light of Dr Frawley’s evidence, Dr Dixon’s opinion is unpersuasive. The reference to the worker suffering from a right shoulder impingement in December 2006 provides no support for the allegation of an aggravation injury against Nugan. Dr Ashton made that diagnosis in the context of Mr Marnell’s work as a shearer.
Seventh, the reference to Austin does not advance Mr Marnell’s case in establishing an injury under s 4(b)(ii) in the absence of persuasive evidence that he suffered an aggravation of a disease to which his employment with Nugan was a substantial contributing factor. The Arbitrator was not satisfied that any aggravation occurred and, having conducted an extensive review of the evidence, I agree with that conclusion.
Eighth, the submission that Mr Marnell’s employment with Nugan caused an increase in “vulnerability” to posteriorly induced pain is not supported by the evidence and, even if it were correct, would not necessarily support a finding of injury. A vulnerability to the development of pain is not an injury under s 4 of the 1987 Act. What is necessary to establish an aggravation injury under s 4(b)(ii) is evidence that the disease was made “more grave, more grievous, or more serious in its effects upon the patient” (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 639).
I accept that Mr Marnell has mild spondylosis in his cervical spine and that that condition is a disease within the terms of the legislation. I also accept that some of his duties with Nugan required physical exertion. However, the evidence does not establish, and I do not accept, that Mr Marnell’s employment with Nugan made his experience of the disease “more grave, more grievous, or more serious in its effects” upon him. In other words, the evidence does not establish that Mr Marnell’s employment with Nugan was even a contributing factor (let alone a substantial contributing factor – s 16(1)(b)) to the aggravation, acceleration, exacerbation or deterioration of the disease of spondylosis.
The diagnosis for Mr Marnell’s shoulders is less clear. Dr Dixon diagnosed subacromial bursitis of both shoulders with post-traumatic stiffness. Dr Van Der Rijt made no specific diagnosis, but concluded that the worker’s principal complaint was one of hand stiffness. He took no history of any shoulder symptoms whilst Mr Marnell worked with Nugan and he made no diagnosis in respect of the shoulders. He noted the history of rotator cuff impingement in 2006. Because of that history, not because of any aggravation injury, Dr Van Der Rijt felt Mr Marnell would have difficulty with work requiring repeated elevation of his hands above shoulder height. That provides the worker with no assistance on the question of whether he suffered an aggravation injury to his shoulders with Nugan. Therefore, even if it is accepted that the condition in Mr Marnell’s shoulders is a disease, he has failed to establish that his work at Nugan aggravated, accelerated, exacerbated or caused a deterioration of that disease.
Last, Mr McCabe’s submission that the “various diseases in the neck and shoulders continued to manifest symptoms of the injuries until the Appellant/Employee had to cease his employment with the Respondent on the 02.12.2008” is untenable, inconsistent with the evidence, and has wrongly assumed that Mr Marnell received an injury in the course of or arising out of his employment with Nugan. Because of his hand symptoms, Mr Marnell worked on light duties from the end of May 2008 until Nugan withdrew those duties on 2 December 2008. He then ceased employment because of the withdrawal of those light duties. His neck complaints were not made in the context of his duties with Nugan and there were no complaints of left shoulder symptoms until 2009. As I have already noted, the complaints of right shoulder symptoms in 2006 were in the context of Mr Marnell’s work as a shearer.
Mr McCabe and Dr Dixon have based their conclusions on an assumption that is not supported by the evidence. That assumption is that Mr Marnell’s neck and shoulder symptoms increased because of the work he performed at Nugan. The overwhelming evidence is that that was not the case. Mr Marnell complained regularly to Dr Mahmoodi about his hands and was treated for that condition. The Arbitrator rightly concluded that, in the absence of any reference to a shoulder symptoms in Dr Mahmoodi’s notes over many consultations between 30 May 2008 and 10 March 2009, when the worker had a fall at home, and in the absence of any evidence from Dr Frawley, or the rheumatologist who saw the worker in late 2008, Mr Marnell had not established that he suffered an injury to his shoulders in the course of his employment with Nugan. I agree with that conclusion and have reached the same conclusion with respect to Mr Marnell’s neck.

Mr Marnell has failed to establish that he suffered an aggravation injury under s 4(b)(ii) of the 1987 Act. It was therefore not necessary for the Arbitrator to consider if his employment was a substantial contributing factor to any such aggravation or to consider whether incapacity resulted from the aggravation.
The Arbitrator added that he was not persuaded that he could apply s 15 of the 1987 Act to fix Nugan with liability in respect of any injury Mr Marnell may have suffered to his right shoulder as a result of employment in the past (Reasons at [68]). I agree with that conclusion and would reach the same conclusion with respect to any alleged s 4(b)(i) and s 15 injury to the right shoulder and neck. Mr Marnell has tendered no persuasive evidence that the condition of his neck or shoulders is a disease that was “contracted” by him “in the course of employment and to which the employment was a contributing factor”. More importantly, there is no persuasive evidence that Mr Marnell’s employment with Nugan was “employment to the nature of which the disease [of spondylosis or bursitis – assuming that bursitis is a disease] was due” (s 15(1)(b)). Dr Dixon concluded that Mr Marnell suffered neck and shoulder strain injuries and that the work aggravated his spondylosis. For the reasons stated above, I do not accept either conclusion.
It follows that the evidence overwhelmingly supports the conclusion that Mr Marnell did not suffer an injury to his shoulders or neck (either a personal injury under s 4(a) or an injury under s 4(b)(i) or s 4(b)(ii)) in the course of his or arising out of his employment with Nugan.

OTHER MATTERS

Mr McCabe also submitted that he had been unable to locate in the Application or the Reply the clinical notes the Arbitrator referred to (at [66]) of his decision, where he referred to the entry in Dr Mahmoodi’s notes on 10 March 2009 that referred to a trauma to the left shoulder after the worker had fallen at home. The relevant entry is included in Dr Mahmoodi’s clinical notes which were tendered (without objection) as part of an Application to Admit Late Documents dated 7 October 2010. It appears that Mr McCabe has not read those notes. It was not necessary for the entry in the notes to be put to Mr Marnell. The notes did not go to Mr Marnell’s credit, but merely provided the first evidence of a complaint of left shoulder problems and that complaint, according to the doctor’s entry, related to a fall at home three months after Mr Marnell stopped work. The entry was not determinative of the issues in dispute, as it did not prove or disprove injury, but was a factor, along with all the other evidence, the Arbitrator was entitled to consider in his assessment of the claim.

CONCLUSION

Having conducted a detailed review on the merits, I am satisfied that the Arbitrator’s conclusion is correct. This appeal was completely without merit and should not have been filed.

DECISION

The Arbitrator’s determination of 17 November 2010 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche

Deputy President
7 March 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE