Maryborough Catering Pty Ltd t/as Blue Apple Catering (NSW) Pty Ltd v Reddin - [2012] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Maryborough Catering Pty Ltd t/as Blue Apple Catering (NSW) Pty Ltd v Reddin [2012] NSWWCCPD 53
APPELLANT:		Maryborough Catering Pty Ltd t/as Blue Apple Catering (NSW) Pty Ltd
RESPONDENT:		Una Rose Reddin
INSURER:		Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:		A1-10198/11
ARBITRATOR:	Ms Christine D’Souza
DATE OF ARBITRATOR’S DECISION:		8 June 2012
DATE OF APPEAL DECISION:		20 September 2012
SUBJECT MATTER OF DECISION:		Challenge to factual findings; reliance by Arbitrator upon history recorded by expert witness as to injury, as evidence of the fact of injury; obligation to give sufficient reasons for decision; s 294(2) of the Workplace Injury Management and Workers Compensation Act 1998; rule 15.6 of the Workers Compensation Commission Rules 2011
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Edwards Michael Lawyers
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:		Orders 1, 2, and 3 found in Certificate of Determination dated 8 June 2012 are confirmed.

BACKGROUND

Mrs Una Reddin commenced employment with Blue Apple Catering (NSW) Pty Limited (the appellant) in 1998. Mrs Reddin’s responsibilities as an employee increased over the years of her employment and by 2008 she held the position of general manager of the company. Her duties included overseeing staff and consulting with clients of the business. Her work required her to attend various facilities owned or operated by clients, and included the provision of tenders in respect of catering services.
It is not disputed that Mrs Reddin received injury in the course of her employment on 9 October 2008 when she fell as she descended a flight of external steps on the premises of a prospective client, the University of New England, Armidale.
Mrs Reddin has been incapacitated for work since the date of her fall and has received ongoing weekly payments of compensation. The appellant has met all her treatment expenses. In May 2011, a claim was made by Mrs Reddin in respect of lump sum compensation. That claim was in respect of an alleged 33 per cent whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and for $35,000 in respect of pain and suffering pursuant to s 67 of that Act. The appellant’s insurer arranged for a medical examination of Mrs Reddin which was conducted by Dr Michael Shatwell in August 2011. Following that examination an offer of settlement of the claim was made. That offer was rejected by Mrs Reddin.
The dispute concerning Mrs Reddin’s entitlement to compensation was the subject of an Application to Resolve a Dispute filed with the Commission in November 2011 (the Application). That Application, at [5.6] particularised the “body parts/systems claimed” as being “right upper extremity, lumbar spine, right lower extremity, left lower extremity, the skin.” The Application came before Arbitrator D’Souza for conciliation/arbitration on 29 March 2011 at which time each party was represented by counsel. The matter proceeded to arbitration following which the Arbitrator reserved her determination. A Certificate of Determination was issued on 8 June 2012. That Certificate was accompanied by a statement of reasons for the decision (Reasons). Those Reasons included findings of fact concerning receipt, by Mrs Reddin, of injury to her lumbar spine, both knees and her right shoulder. It was also found, as admitted by the appellant, that further injury had been received to Mrs Reddin’s right elbow and left ankle. The following orders, as found in the Certificate of Determination, were made:
“The Commission determines:
1. That the claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment in respect of the right upper extremity (elbow and shoulder), the left lower extremity (knee and ankle) and skin/scarring (left ankle), the right lower extremity (knee) and the lumbar spine, with an injury date of 9 October 2008.
2. That the Approved Medical Specialist is to be provided with the Application to Resolve a Dispute, the Reply, the Application to Admit Late Documents dated 24 February 2012 and attached documents, except for the exclusions from evidence referred to in paragraph 5 of the determination in this matter and a copy of this determination.
3. Respondent to pay the applicant’s costs as agreed or assessed at the conclusion of the proceedings.

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

ISSUES IN DISPUTE

The issues in dispute are whether the Arbitrator erred in the following respects:
(a) finding as a fact that Mrs Reddin injured her right shoulder and right knee in the subject fall, and
(b) failing to give adequate reasons for her finding of injury to the right shoulder.
Written submissions provided by the appellant on this appeal enumerate a further six suggested “grounds of appeal”. Those matters raised are not grounds upon which the Arbitrator’s decision is challenged, but are, rather, submissions in support of the challenges noted at [5(a) and (b)] above. Those arguments are addressed in the course of discussion below.

ON THE PAPERS

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

THRESHOLD MATTERS

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

INTERLOCUTORY

The appellant, in written submissions in support of this appeal, makes reference to s 352(3A) of the 1998 Act which provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant, in those submissions, does not expressly accept that the decision of the Arbitrator is one which may be described as an interlocutory decision within the meaning of the above mentioned subsection. It is put that, upon acceptance that the decision is in fact interlocutory in nature, leave should be granted to enable the “proper and effective determination of the dispute”. In the alternative, reliance is placed upon the decision in P&O Ports Limited v Hawkins [2007] NSWWCCPD 87 in support of the submission that the Arbitrator’s determination concerning injury to Mrs Reddin’s lumbar spine, right shoulder and right knee are decisions that “finally determined the parties’ rights as to the liability of the appellant to pay the lump sum compensation claimed”. In those circumstances, it is put, leave to proceed with the appeal is not required.
The Arbitrator has made findings of fact in Mrs Reddin’s favour with respect to her allegations of injury to the lumbar spine, right shoulder and right knee. Those findings of injury, in my view, constitute findings as to liability and are binding upon the parties. Those findings define the parties’ rights and liabilities and as such are determinations which finally dispose of the rights of the parties in the sense as addressed by Gibb J in Licul v Corney [1976] HCA 6; 50 ALJR 439 (at 443-444). Those determinations are not “interlocutory” within the meaning of s 352(3A). In my view there is no need for a grant of leave to proceed with this appeal. Should I be wrong in my conclusion as to the nature of the determinations, I would have no hesitation in granting leave, given the circumstance that determination of this appeal should precede any steps taken by the Registrar to refer the question of whole person impairment for assessment to an Approved Medical Specialist (cf Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48).

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript has been produced and made available to the parties. The documentary evidence which was before the Arbitrator is identified by her at [5] of Reasons. No oral evidence was adduced at the hearing.

The evidence

A very large volume of documents was tendered before the Arbitrator. It is proposed to summarise that evidence relevant to the disputed injuries alleged by Mrs Reddin to her back, right shoulder and both her knees. As noted earlier, there was no dispute that Mrs Reddin had injured her right elbow and left ankle. The injury to the right elbow required surgical treatment some days following the fall. That procedure was conducted by Dr Fraser and involved internal fixation of an intraarticular fracture involving the radial head and medial and lateral condyles of the humerus. The left ankle injury required reconstructive surgery which occurred in February 2009.
There is in evidence a written statement made by Mrs Reddin dated 3 February 2010. The subject fall is described and it is stated that she recalls that her left leg was sore and covered in blood. She also stated that her back was “also very sore”. Mrs Reddin states that she attended her general practitioner, Dr Chamberlain and Dr Fraser, orthopaedic surgeon who had conducted the left ankle surgery. A report from Dr Fraser dated 2 February 2009 ,which is in evidence, addressed to the workers compensation insurer, includes the following:
“As regards her left knee she has significant degenerative change in the knee as well as meniscal pathology and may ultimately require joint replacement surgery”.
A further report of Dr Fraser dated 2 July 2009 records that Mrs Reddin had received injections to her back. That report does not contain any recorded history relating to back symptoms.
Records produced by Sydney West Area Health Service concerning an admission to the Nepean Hospital in November 2008 record complaints made by Mrs Reddin of right elbow and right shoulder pain.
Mrs Reddin had been referred to Dr Ali Gursel, hip and knee surgeon, in early 2009 at which time Dr Fraser was absent on holidays. A report by Dr Gursel dated 7 January 2009 records investigations of her left ankle and her lumbar spine and there is in that report a notation that Mrs Reddin was “not coping with her aches and pains in her lower limbs”. Dr Gursel arranged to have Mrs Reddin reviewed by a rehabilitation specialist, Dr Jane Wu. There is no evidence from Dr Wu before the Commission.
It seems that Dr Fraser resumed his treatment of Mrs Reddin and there is in evidence a report dated 19 January 2009 which records Dr Fraser’s observations of a bone scan taken of Mrs Reddin that day. Dr Fraser stated:
“I saw the bone scan of Una Reddin today of her lumbar spine which shows her to have slightly increased intake on the right side rather than the left but involving 4/5 and 5/1. She also has slightly more uptake in the right knee than the left knee surprisingly. Although I requested x-rays of her left knee they have been left at the Radiology Department. I have organised a MRI scan of her left knee and I will review it with the x-rays next time I see her. In the meantime I have arranged for her to have the CT guided injections hopefully with Glen. She is very keen to get the ankle sorted out in the meantime.”
The “whole body bone scan” which was the subject of Dr Fraser’s observations is in evidence. The clinical history there recorded is “low back pain and knee pain”. The following matters were also noted:
“arthritic changes were also noted in the patella femoral compartments of both knees and to a lesser degree the tibiofemoral compartments, more marked on the right side. There was some increased tracer uptake throughout the right patella which may relate to recent injury and bone contusion”.
A report of Dr Fraser dated 29 January 2009 records that an MRI scan of Mrs Reddin’s left knee had been conducted. Dr Fraser reported “this shows her to have grade 4 changes of the patella femoral joint but a significant tear involving the body of the lateral meniscus”.
It was these findings that led Dr Fraser to arrange an arthroscopy to Mrs Reddin’s left knee. The evidence establishes that such arthroscopy occurred on 5 February 2009 and reconstructive surgery occurred at that time.
Dr Fraser, in a report dated 8 February 2010, recorded a complaint by Mrs Reddin of pain in her right shoulder. It was Dr Fraser’s view that Mrs Reddin had “impingement type pain” and he suggested investigation for “impingement and rotator cuff tear”.
Dr Fraser, in a further report dated 29 April 2010 addressed to Dr Chamberlain, records that Mrs Reddin “does have some tears in her right shoulder and an impingement problem”. Other symptoms reported by Mrs Reddin were recorded and Dr Fraser stated “her right knee is the thing that is worrying her the most at the present time and its shows as quite hot involving the patella femoral joint on bone scan”. Dr Fraser considered that Mrs Reddin would probably benefit from an arthroscopy and lateral release of the right knee. That procedure, the evidence establishes, took place on 5 August 2010.
A report of Dr Elias Matalani dated 2 March 2011 was tendered in evidence by Mrs Reddin. Dr Matalani had been qualified by her solicitors to provide a report in support of the claim. The symptoms of which Mrs Reddin complained at that time included complaint of pain in the lower back, pain the right shoulder region and pain in both knees. Dr Matalani addressed those matters together with the uncontentious matters concerning injury to the right elbow and left ankle when expressing his view as to the extent of whole person impairment suffered by Mrs Reddin as a result of the subject fall. History recorded by Dr Matalani included detail of shoulder surgery in December 2010 and findings of an earlier MRI of the right shoulder which demonstrated “complex tear of the supraspinatus tendon as well as an intrasubstance tear of the anterior infraspinatus tendon with tendinosis of the subscapularis. There was marked AC joint hypertrophy.”
The appellant tendered a copy of a record of interview conducted between an investigator appointed by the insurer and Mrs Reddin which took place on 25 November 2008. At page 4 of that document the interviewer put to Mrs Reddin a leading question concerning the nature of her injuries when the following exchange occurred:
“I understand that on 16 October 2008 you were, for the purpose of your employment, visiting the University of New England in the Armidale precinct and you were involved in a fall and you sustained injury to your right elbow, left leg and back. Is that true?
Reddin: That’s correct.”
In the course of the interview referred to immediately above, Mrs Reddin stated that she had received a previous injury to her back “about 10 years ago” which was the subject of a workers compensation claim. Mrs Reddin stated that she experienced pain in her back prior to the subject fall and had sought treatment including injections from Dr Chamberlain. The last injection received for that pain was two days before the fall. That treatment was described as “an epidural” which had been administered at Penrith Imaging. Mrs Reddin had earlier stated that the pain she experienced in her back following the fall was more significant than the discomfort she had earlier experienced.
During the course of the interview Mrs Reddin was asked to describe where she felt pain following the fall. It is recorded that Mrs Reddin indicated her right elbow and shoulder, a graze below the left knee was mentioned, and she stated that her left leg was bleeding “very much”. It was further stated that “my whole body was in pain. I was just sick”.
The appellant has tendered a large number of medical reports and radiological investigations many of which had been tendered on behalf of Mrs Reddin. Those documents include a report dated 21 January 2009 from Dr Fraser to the insurer which states in part:
“I reassessed Una Reddin on 19 January 2009 and she has significant lower back pain in addition to her knee pathology and ankle pathology all aggravated by her recent injury while on duty”.
A report of Richard Powell, Orthopaedic Surgeon, dated 7 July 2009 was tendered on behalf of the appellant. The history of injury as recorded by that practitioner includes notation of injury to the left knee, left ankle and lower back as well as injury to the right elbow. The symptoms recorded by Dr Powell on that occasion concerned pain in her right elbow, lower back, left knee and left ankle. Dr Powell also recorded a history of previous back injury which had resulted in ongoing symptoms. It was Dr Powell’s opinion that investigations made available to him demonstrated the presence of “well established pre-existing multi level degenerative change” of the spine.
A copy of a MRI right shoulder prepared by Penrith Imaging dated 17 February 2010 addressed to Dr Fraser is in evidence. That report summarises findings as including evidence of a complex tear involving the supraspinatus tendon with background tendinotic of mild degree with a moderate grade bursal sided partial thickness tear involving the anterior 8 mm of the supraspinatus tendon and a small focus low grade infrasubstance tear seam at the posterior supraspinatus tendon. Another tear was noted involving the anterior infraspinatus tendon which appears to progress to a high grade articular sided partial thickness tear as earlier described. Other tears and abnormalities were noted in that study.
There is a copy of a report by Dr Michael Shatwell, Consultant in Orthopaedic and Accident Surgery, dated 25 February 2011 in evidence. Following a summary of the history of injury and subsequent treatment, Dr Shatwell noted that:
“Ms Reddin unfortunately continued to suffer from unsteadiness and difficulty walking as well as lower back pain, left and right knee pain and aching in the left ankle. She also had considerable aching in the right elbow and right shoulder”.
A later report of Dr Shatwell, dated 18 August 2011, is also in evidence. That report summarises the complex history of treatment following the subject fall as well as detail of numerous radiological investigations and other studies. The following observations of Dr Shatwell are recorded in that report:
“I consider Mrs Reddin sustained injuries to her right elbow and left ankle as a result of the fall. The minor contusions of her knees have settled and it is highly unlikely that the surgery performed for her knee complaints was required for the results of injury.
I do not consider that Mrs Reddin’s neck and lower back symptoms are related to the injury. I do not consider that she injured her right shoulder”.
The appellant also tendered a number of medical reports relating to the treatment of Mrs Reddin following her previous lower back injury. It appears from the report of Dr Peter Giblin dated 19 December 2001 that Mrs Reddin had been injured in February 1998 in the course of her employment with an earlier employer when she bent to lift a box of chips. Dr Giblin’s diagnosis at that time was of “soft tissue injury to her back, with referred and associated symptoms in her hips, neck and arms, reasonably causally related to the subject injury of 1998”.

The appellant tendered copies of documents relevant to an Application for Determination filed on behalf of Mrs Reddin in the former Compensation Court of New South Wales against her former employer Christensen’s Complete Catering Services Pty Ltd. Compensation claimed in that Application was in respect of lump sum compensation and medical expenses. The nature of the injury particularised was “injury to the back, neck, left and right legs, left and right arms.”
A copy of “Terms of Settlement” filed in the earlier proceedings is in evidence. It appears that the settlement occurred on 12 April 2002 and made provision for payment to Mrs Reddin of lump sums pursuant to ss 66 and 67 of the 1987 Act.

SUBMISSIONS

Counsel for Mrs Reddin, following a summary of the medical evidence and the content of those records produced by the Nepean hospital, argued that there should be a finding made that, in addition to those injuries admitted by the appellant, Mrs Reddin had injured her back, both knees and her right shoulder.
It was argued that the fact that all treatment expenses had been paid by the appellant’s insurer in respect of each injury alleged should be taken as an “admission” of liability in respect of those injuries.
Mrs Reddin had, it was put, been frank concerning her previous back injury and she should be accepted as a credible witness. Her evidence on those matters recorded in the medical evidence should, it was argued, be accepted by the Arbitrator.
Counsel appearing for the appellant before the Arbitrator argued that the evidence does not support a conclusion that Mrs Reddin injured both knees and her shoulder in the subject fall. Emphasis was placed upon the absence of any complaint of shoulder injury made by Mrs Reddin during the interview arranged by the insurer.
It was accepted by counsel that there was some evidence of complaint of back pain. It was put that the evidence was clear that Mrs Reddin had a history of chronic back pain and that “there is little support contained in the medical evidence for any change in that pathology as a result [of the fall]” (at T15).

THE ARBITRATOR’S DECISION

The Arbitrator, following a summary of the evidence and argument advanced by each party, proceeded to note that “the evidence establishes that Ms Reddin now suffers from severe symptoms in her low back, right shoulder, both knees as well as with respect to the conceded injury to her right elbow and left ankle” (at [37] of Reasons).
The evidence of Dr Matalani concerning the occurrence in the fall of soft tissue injury to Mrs Reddin’s lower back giving rise to painful symptoms is accepted by the Arbitrator (at [39] of Reasons). The suggestion in Dr Shatwell’s evidence that Mrs Reddin had suffered a minor aggravation of her back “problem” in the fall, and that such would have settled within a few weeks of injury, appears to have been rejected by the Arbitrator (at [40] of Reasons). The Arbitrator observed that “the level of permanent impairment, if any, attributable to [the fall] is a matter for an [Approved Medical Specialist] (at [41] of Reasons).
Mrs Reddin’s allegation of injury to both her knees was found to be established on the evidence (at [44] and [45] of Reasons). A finding was made that Mrs Reddin had received injury to her right shoulder in the fall. It was stated at [48]:
“Considering all of the evidence I find that, on the balance of probabilities, Ms Reddin has discharged the onus upon her to demonstrate that she was injured as claimed in the course of her employment with Blue Apple, and that her employment was a substantial contributing factor to her injuries. I am satisfied that she suffered a personal injury to her lumbar spine, both knees and her right shoulder (in addition to her right elbow and left ankle for which liability is accepted) on 9 October 2008 in the course of her employment with the respondent to which her employment was a substantial contributing factor pursuant to sections 4(b)(ii) and 9A of the 1987 Act.”
The orders noted at [4] above were made.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
It should be noted at the outset that the appellant on this appeal has made a significant concession concerning the nature of the injuries sustained in the subject fall which was not made at the hearing before the Arbitrator. The Arbitrator noted that the appellant had denied the occurrence of injury to Mrs Reddin’s back, right shoulder and both knees (T1). Under the heading “Substantive Issues” at page 4 of written submissions in support of this appeal, the following was stated:
“It is not disputed that the incident alleged to have occurred on 9 October 2008 occurred. Nor is it disputed that Ms Reddin suffered injury to her right elbow, left ankle, scarring, left knee and lumbar spine as a result of the said incident. The critical question is whether the respondent worker injured her right shoulder and right knee at that time.”
As earlier noted the appellant’s challenge suggests error of fact in relation to the findings of injury to the right shoulder and right knee. A further challenge is raised to the finding concerning injury to the right shoulder upon the basis of a suggested failure by the Arbitrator to provide adequate reasons for her finding of fact.
It is proposed to address those arguments raised concerning the suggested factual errors. Factual findings may be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Kerr) which decision has been discussed in the context of Commission appeals by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. It must be shown that the Arbitrator was wrong. Such error may be established by showing that, as stated by Barwick CJ (at 506):
“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 was so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
An argument, wrongly characterised by the appellant as a “ground of appeal”, asserts error of the Arbitrator in “failing to refer to the significance of the absence of reference to the right shoulder and right knee in [Mrs Reddin’s] statement”.
The appellant is correct to assert that neither injury to the right shoulder nor to the right knee is mentioned in that statement made 3 February 2010. That fact, and the argument raised by the appellant before the Arbitrator, are acknowledged by her at [33(a)] and [33(c)] of Reasons.

The finding of right knee injury

When considering the alleged left and right knee injuries, the Arbitrator (at [45] of Reasons) expressed her satisfaction that Mrs Reddin’s pre-existent knee condition (osteoarthritic changes in both knees) was “exacerbated or accelerated by the effect of her fall”. Reliance was placed upon the evidence of Dr Matalani, Dr Shatwell and Dr Fraser in so concluding.
The appellant, both before the Arbitrator and on this appeal, has placed much reliance upon the absence of contemporaneous complaint made by Mrs Reddin concerning right knee and right shoulder injury. Complaint is also made that:
(a)     the findings of injury were against the evidence and the weight of the evidence;
(b)     undue weight had been placed upon the evidence of absence of complaint of problems with the knee and shoulder before the subject fall;
(c)     there had been failure to “assign appropriate weight” to Dr Matalani’s acceptance of a history of injury to the knee in the fall, and
(d)     there had been no acknowledgment that Dr Matalani’s opinion was “completely dependent upon an acceptance that Mrs Reddin sustained abrasions to both knees [in the fall]”.
It must be said that the state of the evidence as presented on Mrs Reddin’s behalf is, to a considerable extent, wanting in detail concerning history of injury to her right knee and right shoulder. That circumstance, as earlier noted, was acknowledged by the Arbitrator. It is reasonably clear that the Arbitrator, in her findings based upon acceptance of the evidence of Dr Matalani, Dr Shatwell and Dr Fraser, had relied upon, not only the opinions expressed by those practitioners, but also the history as recorded by each in their reports.
The Commission is not bound by the rules of evidence: s 354 of the 1998 Act. The correct approach to the appraisal of evidence by the Commission was recently considered by the Court of Appeal in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282. The Court’s views included those observations made by Allsop P at [2] and [3]:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council [2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].
Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”
The Arbitrator has drawn an inference that injury to the right knee had been received. In the process of so concluding she has treated the recorded history of injury found in the experts’ reports as some evidence of the fact. Such, in my view, is permissible. However the question remains, as discussed by Barwick CJ in Kerr, as to whether the Arbitrator, in concluding as she did, was wrong.
There is no doubt that Mrs Reddin suffered, as found by the Arbitrator, from osteoarthritis of the right knee. That condition was, having regard to the whole body bone scan noted at [19] above, objectively demonstrated as being more severe in the right knee than was demonstrated in the left knee. That fact, it seems, surprised Dr Fraser. That scan was produced some three months or so after the fall. Up to that time Mrs Reddin had undergone significant right elbow surgery and had sustained a severe left ankle injury which was, in the month following the bone scan, treated surgically by Dr Fraser. It is clear that at that time Mrs Reddin’s focus was very much upon the state of her left leg and ankle and she was convalescing following the elbow surgery. The extent of her distress at that time is recorded by Dr Fraser in his report of 29 January 2009. In those circumstances it may not be surprising that no express complaint of right knee pain had been made by her or recorded by those attending to her treatment.
It is of significance that the report accompanying the bone scan referred to above, included the conclusion by Dr Victor Mansberg that “there is some increased tracer uptake in the right patella which may represent bone contusion from recent injury”.
The whole body scan conducted by Dr Mansberg had been provided to Dr Matalani. Dr Matalani’s view, as expressed under the heading “diagnosis and opinion” was that Mrs Reddin had “suffered contusion to her knees with aggravation of pre-existing osteoarthritis”.
The term used by both Dr Mansberg and Dr Matalani concerning trauma to the right knee is “contusion”. Such term suggests a bone crushing injury which does not involve breaking of the skin. Such a “contusion” was hypothesised by Dr Mansberg and had been diagnosed by Dr Matalani, albeit that Dr Matalani had taken a history of “bleeding from the knees with gravel on the knees”.
It is clear from an examination of the medical evidence generally that Mrs Reddin’s description of the state of her legs immediately following the fall is variable. By way of illustration, it is recorded by Dr Shatwell when he first examined Mrs Reddin in February 2011 that she had grazed her shins when she fell.
When determining whether error of fact has been committed it is important, in my view, to note that the injury to the knee as found by the Arbitrator was one of aggravation of a pre-existing disease. That such disease was present in Mrs Reddin’s right knee is plainly established. The conclusion stated by Dr Mansberg noted at [58] above concerning possible recent injury is persuasive evidence in support of such inference of injury being drawn. Further, it may be inferred that Dr Fraser treated the state of the right knee as being causally related to the fall given his communications with the insurer concerning proposed treatment and payment for such treatment.
Mrs Reddin received serious injury which required ongoing management including multiple surgical procedures. There is no challenge to her credit as a witness. The absence of a coherent and timely report of injury to the right knee may, in my view, be explained by those distressing circumstances in which Mrs Reddin found herself following the fall. The inference drawn by the Arbitrator was, in my opinion, one open to her on the evidence.
The Arbitrator had acknowledged those arguments raised by the appellant which have been reiterated on this appeal. Those arguments do not establish, in my view, that the available inference that no injury to the right knee occurred in the fall was “so preponderant” that the Arbitrator’s decision must be found wrong. The Arbitrator’s finding concerning that injury must be confirmed on this appeal.

The Arbitrator’s finding of right shoulder injury

The finding which is challenged on this appeal is to be found at [48] of the Arbitrator’s Reasons which is to be found at [44] above.
The evidentiary matters relating to the right shoulder which had been referred to by the Arbitrator concerned an acknowledgment that the subject shoulder was “asymptomatic… prior to the fall” (at [37]). The Arbitrator also made reference to the evidence which established the existence of “longstanding degenerative disease in the lumbar spine, shoulders and knees” (at [42]). At [46] of Reasons it appears that the Arbitrator has taken into account that evidence concerning payment of “all medical expenses” as being a “factor [which] adds weight to [Mrs Reddin’s] position”.
The appellant complains that the Arbitrator has failed to give “adequate reasons” for her conclusion concerning injury to the right shoulder.
Having regard to the provisions of s 294(2) of the 1998 Act and Rule 15.6 of the Workers Compensation Commission Rules 2011 an arbitrator has an obligation to provide reasons for the decision made when determining a dispute such as the present. I accept the appellant’s submission that there has been a failure in the present matter to provide sufficient reasons for the Arbitrator’s conclusion concerning injury to the right shoulder. However, upon an examination of the evidence I have reached the view that her conclusion was, nonetheless, correct.
The matters, in addition to those matters considered by the Arbitrator, which I have taken into account in so concluding are as follows:
(a) the evidence of complaint of right shoulder pain made by Mrs Reddin at Nepean hospital on 7 November 2008;
(b) the complaint of right shoulder pain made by Mrs Reddin during the interview with the insurance investigator in November 2008 as noted at [28] above;
(c) the MRI findings made in February 2010 noted at [31] above, and
(d) the history given to Dr Shatwell in February 2011 by Mrs Reddin concerning right shoulder pain persisting following her treatment in February 2009.
Given my view as to the correctness of the Arbitrator’s finding as to injury to Mrs Reddin’s shoulder it is appropriate, and in accordance with legislative intent concerning appeals such as the present, that the Arbitrator’s finding be confirmed on this appeal for the reasons above stated. Appropriate orders are made below.

DECISION

The findings of injury made by the Arbitrator are confirmed.
Orders 1, 2, and 3 found in Certificate of Determination dated 8 June 2012 are confirmed.

COSTS

The appellant is to pay Mrs Reddin’s costs of the appeal.

Kevin O'Grady

Deputy President
20 September 2012

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

ASSOCIATE