Mayne Group Limited v Gill
[2007] NSWWCCPD 183
•23 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mayne Group Limited v Gill [2007] NSWWCCPD 183
APPELLANT: Mayne Group Limited
RESPONDENT: Jeanette Gill
INSURER:Mayne Group Workers Compensation
FILE NUMBER: WCC21066-04
DATE OF ARBITRATOR’S DECISION: 15 August 2006
DATE OF APPEAL DECISION: 23 August 2007
SUBJECT MATTER OF DECISION: Evidence and weight of evidence; jurisdiction; injury; substantial contributing factor; burden of proof; failure to deal with a matter in dispute; adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Joanne Muller
HEARING:Determined on the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Steve Masselos & Co
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 15 August 2006 is confirmed.
The Appellant Employer is to pay Ms Gill’s costs of the appeal.
BACKGROUND
Ms Jeanette Gill, the Respondent Worker in this appeal, is 55 years of age. Ms Gill was employed as a courier by the Mayne Group Limited (‘the Appellant Employer’) at the relevant time. The Appellant Employer is self-insured.
Ms Gill was delivering pathology reports on behalf of her employer to the surgery of Dr Bruce McArthur (a local general practitioner) on 10 January 2003. It had been raining, the pebblecrete driveway was slippery and she slipped, falling forward and sliding on her stomach over an iron grate, across a footpath and onto the roadway. She suffered an injury to her right elbow and left ankle, which were treated by Dr McArthur soon after the fall and for some considerable time thereafter. The significant and extensive grazing to the left elbow became infected and required treatment by Dr McArthur. Ms Gill’s statement dated 23 January 2005 indicates that she still suffers difficulties with activities of everyday living due to pain in her elbow, upper arm and shoulder. However, the difficulties with her upper arm became manifest some time after the fall.
Ms Gill lodged a claim form with her employer in January 2004. The ‘Application to Resolve a Dispute’ (‘the application’) was lodged by Ms Gill with the Workers Compensation Commission (‘the Commission’) on 23 December 2004 claiming lump sum compensation for an injury to her “Right arm”. Ms Gill was referred to Dr W.G.D. Patrick for assessment prior to this application being lodged. The application gives the date of the injury as “Nature and conditions of employment from 1986 & 10 June 2003” and claims lump sum compensation in the sum of $8750 (being 7% of a Whole Person Impairment (‘WPI’) with respect to the right shoulder as assessed in Dr Patrick’s report dated 30 August 2004).
During the telephone conference on 3 March 2005, the solicitor for the Appellant Employer raised several matters in issue between the parties being ‘injury’, ‘causation’, ‘nexus’ and section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator noted that the claim was a nature and conditions claim and also for a frank injury to her elbow and shoulder on 10 January 2003. Directions were made regarding the filing of additional reports from doctors, a statement by Ms Gill and material “yet to be produced” (the clinical notes of treating doctors). The matter was referred to Professor Higgs, an Approved Medical Specialist (‘AMS’). The Request for Medical Assessment by Approved Medical Specialist dated 3 March 2005 indicates the assessment was requested for a permanent impairment dispute in relation to the ‘RIGHT ARM’ with the date of the injury recorded as ‘FROM 1986 NATURE AND CONDITIONS TO DATE & CONTINUING & 10.1.03 (SLIP IN DRIVEWAY)’. Ms Gill was examined by Professor Higgs and a Medical Assessment Certificate (‘MAC’) assessing 4% WPI issued. The Appellant Employer appealed the MAC and the matter was referred to a Medical Appeal Panel (‘the Panel’). The Panel issued a Medical Appeal Panel Certificate dated 1 May 2006 assessing a 4% WPI. The Panel agreed that it appeared the AMS had overlooked the evidence in one medical report but stated this evidence was not a matter that would change the outcome, that they supported the opinion of the AMS in relation to the right shoulder injury and was satisfied that a determination of 4%WPI in respect of injuries occurring on 10 January 2003 was a fair assessment. The Panel revoked the Certificate issued by the AMS and issued a certificate with the same WPI finding and confirmed that it was due to right shoulder restrictions.
The conciliation conference and subsequent arbitration took place on 31 July 2006. At paragraph 7 of the Statement of Reasons for Decision (‘Reasons’) dated 15 August 2006 the Arbitrator identified that the issue in dispute at the arbitration was limited to whether Ms Gill received an injury to her right shoulder, arising out of or in the course of employment. The Arbitrator resolved this question in the affirmative. Other issues raised by the Applicant Employer during the Arbitration are dealt with herein.
On 12 September 2006 the Appellant Employer sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission with respect to the decision of the Arbitrator dated 15 August 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 15 August 2006 records the Arbitrator’s finding as follows:
“Finding.
1. On 10 January 2003 the Applicant suffered injury to her right shoulder and elbow arising out of and in the course of her employment.”
ISSUES IN DISPUTE
The issues in dispute on appeal are found throughout the Appellant Employer’s grounds of appeal and are set out in detail in its submissions of 12 September 2006, and its further submissions of 5 March 2007. Its further submissions contain a summary of those grounds for the purposes of this appeal (at paragraph 3). The issues on appeal as summarised are whether the Arbitrator erred in:
(a)failing to properly consider the evidence and the weight of the evidence;
(b)failing to properly consider and determine a relevant jurisdictional issue;
(c)reversing the onus of proof;
(d)finding that employment was a substantial contributing factor to alleged injury;
(e)not providing adequate reasons for the decision, and
(f)wrongly stating that there was no dispute between the parties as to an incident that occurred on 10 January 2003.
It is submitted on behalf of Ms Gill that the Arbitrator’s decision ought be confirmed because:
(a)it was open to him to accept the opinions of the AMS and the Panel “…on what is clearly a medical causation issue”;
(b)the Arbitrator’s finding that the opinions of the AMS and the Panel were consistent with the opinion of Dr McArthur (see paragraph 2 above);
(c)this matter involves the “…later onset of symptoms in the shoulder said to be related to an initial lower arm injury…”, and
(d)the decision of the Arbitrator was based upon commonsense and a clear opinion as to medical causation from the AMS and the Panel.
ON THE PAPERS REVIEW
The last sentence in the initial Submissions of the Appellant Employer dated 12 September 2006 reads:
‘These [submissions] will be finalised at the hearing which is sought following the provision of transcript’.
The transcript was provided to the parties. Directions were made for complete and final written submissions to be lodged. The Appellant Employer did not press the earlier request for an oral hearing in its further submissions. Ms Gill submitted that the appeal could be determined on the papers.
I am satisfied that both parties have had every opportunity to put on full and complete submissions after receipt of the transcript.
I have regard to the provisions of section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing.
LEAVE
Monetary Threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
As no compensation has been awarded in this matter, the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Ms Gill claimed $8,750 in respect of 7% whole person. The Medical Appeal Panel Certificate would result in a payment of $5,000 in respect of a 4% WPI. The quantum of compensation “at issue” on appeal is either equal to or exceeds the $5,000.00 threshold in section 352(2)(a). It is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).
I am satisfied that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged on the 28th day after the issue of the Certificate and therefore complies with subsection 352(4) of the 1998 Act.
Is this an interlocutory ‘decision’ for the purpose of section 352(8) of the 1998 Act?
Section 352 of the 1998 Act was amended by the Workers Compensation Legislation Amendment(Miscellaneous Provisions) Act 2005 to include section 352(8). This section excludes orders of an interlocutory nature from the definition of ‘decision’ for the purpose of section 352(1). Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
Neither party made submission regarding the applicability of this provision however a Presidential member should be satisfied that the matter is a suitable matter in which to grant leave to appeal.
In P & O Ports Limited v Hawkins[2007] NSWWCCPD 87 (see paragraphs 35-41 inclusive, but particularly paragraph 37) Deputy President Roche considered in detail the interpretation of the term ‘interlocutory’ in section 352(8) in the context of the Workers Compensation legislation. I adopt his interpretation.
Once the Arbitrator made his decision, the only issue to be resolved in order to dispose of this matter was whether or not an appeal should be allowed in relation to the Medical Appeal Panel Certificate. Medical disputes are assessed and determined under Part 7. If the appeal is not allowed then the certificate for 4% WPI issued by the Medical Appeal Panel will stand. If the appeal is allowed it may be replaced by another certificate. This is not a matter for me to decide.
For these reasons, I am of the view that this is not an appeal in relation to an interlocutory decision for the purpose of section 352(8) of the 1998 Act.
I grant leave to appeal.
FRESH EVIDENCE
The Appellant Employer lodged with the Commission a surveillance video (‘the video’) on 28 July 2006. The solicitor for the Appellant Employer indicated during the Arbitration that the video is from a period of time after the medical assessment was done by Professor Higgs and after the Medical Appeal Panel review being for the period 11 to 19 March 2006 (see transcript page3). It does not appear that the video was lodged in accordance with the Workers Compensation Commission Rules 2006 (the Rules) or any directions. Reference was made to the video during the arbitration. It was not considered by either the AMS or the Panel.
The Appellant Employer submitted that the Arbitrator did not properly consider the video, and failed to have regard to or take it into account (see paragraph 31 below). The submission of the Appellant Employer went on to state:
‘If it [the video] is considered that this is fresh or additional evidence, then the appellant seeks to rely on it’.
‘Fresh evidence’ on appeal is governed by section 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.’
Practice Direction No.6 also provides guidance about the circumstances required for new evidence to be considered.
There are two questions to be resolved. Firstly whether or not the video was in evidence before the Arbitrator and, if it was not, whether it should be considered as new evidence in this appeal.
After perusing the evidence and in particular the transcript of the proceedings before the Arbitrator, I am satisfied that the video did not come into evidence during those proceedings. The solicitor for the Appellant Employer had indicated to the Arbitrator that there was no further evidence in his case prior to the mention of the video and the Arbitrator stated that the video was ‘not part of my current deliberations’ (see transcript pages 2 and 3).
Moreover, while the Appellant Employer referred to the video in its submissions on appeal, it has failed to comply with the requirements to make a proper application to admit the video as fresh or new evidence. Furthermore, the Appellant Employer did not include a copy of the video either at the time the appeal was filed or subsequently, and has failed to put forward any reasons in support of the admission of the video as fresh or new evidence.
The solicitor for the Appellant Employer indicated during the Arbitration that the video related to surveillance undertaken in March 2006. It would be at best tenuous to suggest this is relevant to the question of injury from a fall in 2003.
Consequently, there is no proper application before me to admit the video as new or fresh evidence and I therefore decline to treat it as such.
DISCUSSION AND FINDINGS ON EVIDENCE AND SUBMISSIONS
(a) Did the Arbitrator err in law by reason of a failure to properly consider the evidence and the weight of the evidence?
The Appellant Employer submitted that the Arbitrator erred in law in failing to properly consider or give appropriate weight to five aspects of the evidence being:
(i) the video;
(ii) the evidence regarding a pre-existing condition in Ms Gill’s right shoulder (in particular the clinical note of Dr Michael Ferguson of May 2000);
(iii) the failure to exclude the evidence of Dr Patrick (as his opinion was based on a partially inaccurate medical history);
(iv) the failure to prefer the evidence of Drs Murray J Stapleton, Lloyd Hughes and Kim Edwards, and
(v) the clinical notes of Drs Ferguson and McArthur recording activities that provoked right upper arm/shoulder pain.
With respect to (i) above, I have already found that the video was not in evidence before the Arbitrator. Therefore I find there was no error and the Arbitrator was not required to take the video into consideration.
With respect to (ii) above, the transcript reveals that the Arbitrator was taken to a single handwritten entry in the clinical notes made by Dr Ferguson (Ms Gill’s usual treating general practitioner) in respect of a consultation recorded for 8 May 2000 (i.e. prior to 10 January 2003). This entry included a reference to Ms Gill’s right shoulder but is illegible with respect to any other detail.
At the arbitration hearing the following submission was made by the solicitor for the Appellant Employer with respect to this entry in Dr Ferguson’s clinical notes during the Arbitration:
“I must admit I can’t say what it says, but it’s clearly a reference to the right shoulder”. (transcript page 5, lines 37-39)
It was submitted at the arbitration that this entry should be taken as evidence that Mr Gill suffered from a pre-existing condition in her right shoulder (see transcript page 4 onwards). It was submitted that this condition was caused by “an insidious and non-work-related” problem that manifested itself “more than nine months after the fall”. This submission was said to be supported by evidence that Ms Gill had suffered from a problem with her left shoulder in 2001 for which there was no suggestion that it was traumatically or otherwise induced. I note at this stage that it was further submitted that the Arbitrator should have taken this view to be supported by the proposition that the right shoulder problem was age related and the fact of the pre-existing, non-work related problem with her left shoulder.
The entry in the clinical notes of Dr Ferguson is unclear and inconclusive. The evidence can be put no higher than that there was a mention of the right shoulder at the consultation on that date. There is nothing indicating the context in which this entry was made. There is no record of a consequent referral for investigation or treatment. It would not have been safe for the Arbitrator to have speculated upon this evidence in the manner submitted by the Appellant Employer, because it is entirely inconclusive.
The Arbitrator comments on the entry in the clinical notes of Dr Ferguson and states “I don’t know that there’s much you can put on that particular – it certainly does not support the continuation of something.” (see transcript page 12). The Arbitrator further comments that on closer examination of the entry he cannot even be sure that the entry is a reference to the right shoulder (see transcript page 16). The Arbitrator accepted the submission of counsel for Ms Gill that the entry did not mean anything (see transcript page 17). It is hardly surprising that the Arbitrator fails to mention this matter in his Statement of Reasons.
I find that there was no error on the part of the Arbitrator with respect to his consideration of the evidence of Dr Ferguson concerning the entry of 8 May 2000.
With respect to (iii) above, the Arbitrator is said to have erred in failing to exclude the report of Dr Patrick dated 30 August 2004. The Arbitrator’s Reasons record that Dr Patrick had an inaccurate clinical history with respect to the time of onset of pain in the right shoulder.
Contrary to the submissions of the Appellant Employer, there is nothing to indicate that the Arbitrator placed any weight upon this report. This ground is not made out.
The fourth area, (iv) above, contends that the Arbitrator failed to properly consider and weigh competing medical evidence, and erred in not preferring the evidence from Drs Stapleton, Hughes and Edwards. Ms Gill was examined by each of these doctors on behalf of the Appellant Employer.
It is noted that the Arbitrator commented upon the fact that the reports of Drs Stapleton, Hughes and Edwards did not provide any basis for their view that the right shoulder symptoms suffered by Ms Gill were not related to her injury on 10 January 2003. The Arbitrator uses this only to support his view that the fall on 10 January 2003 resulted in an injury to Ms Gill’s right elbow and right shoulder. He provides detailed reasons why he has formed that view.
A reading of the Reasons confirms that in fact, the Arbitrator had appropriate regard to the reports of Drs Stapleton, Hughes and Edwards. He also had close regard to the opinion of the AMS who had examined Ms Gill, the opinion of the Panel, the statement of Ms Gill, and the other medical evidence, particularly that of Dr McArthur.
In my view, it was open to the Arbitrator to consider as persuasive the conclusions of the AMS and the Panel (made in the non binding parts of their Medical Assessment Certificates) as to injury or causation as evidence before him, which may be considered along side the other medical evidence filed by the parties. Indeed, a perusal of the transcript of the Arbitration (page 15) confirms that the solicitor for the Appellant Employer specifically agreed that the opinion of Professor Higgs could be considered by the Arbitrator. I am of the view that this is the correct approach to this evidence. The fact that a Medical Assessment Certificate issued by Professor Higgs has been appealed does not mean that the non-binding parts of it should not be considered by the Arbitrator. This approach has been adopted by Presidential members in other matters (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney[2006] NSWWCCPD 124 at paragraph 55).
It is clear from his Reasons that the Arbitrator looked to the report of the Medical Appeal Panel as evidence regarding the causal link between the injurious event and the current condition in the right shoulder, albeit not conclusive evidence. In any event, it is clear from the Reasons that the Arbitrator noted that the opinion part of the report was consistent with other evidence and the preferred medical evidence. The Arbitrator’s conclusion was supported by reference to the fact that it is consistent with the statement of Ms Gill (which remained unchallenged), the significant weight that could be accorded to the report of Dr McArthur as he had the benefit of examining Ms Gill from the time of the injury, the views of the AMS (who also examined Ms Gill) and the Panel that were seen as neutral assessors, and as set out above, the fact that the opinions of Drs Stapleton, Hughes and Edwards were not supported by reasons.
On the evidence before the Arbitrator, it was open for him to prefer other medical evidence to that of Drs Stapleton, Hughes and Edwards for the reasons he gave. Consequently, I find that the Arbitrator did not err in his treatment of, and the weight given to the reports of Drs Stapleton, Hughes and Edwards.
The final issue under this ground of appeal in (v) above, is that the Arbitrator erred by not having any, or any proper regard to certain aspects of the evidence of Drs Ferguson and McArthur. It was submitted that a proper consideration and weighing of this evidence would have led the Arbitrator to the conclusion that the problem with Ms Gill’s right shoulder was not work related.
The transcript indicates that the only part of Dr Ferguson’s clinical notes that was brought into question during the arbitration is the clinical entry in May 2000 referring to the right shoulder which, as set out in paragraphs 35 - 40 above, was entirely inconclusive. It was appropriate for the Arbitrator to have little or no regard to this evidence, as to do otherwise, would have been unsafe.
The Appellant Employer submitted to the Arbitrator that parts of the clinical notes of Dr McArthur, being those entries that referred to complaints made by Ms Gill regarding activities, such as knitting, which provoked an increase in the pain level in her right shoulder should be taken by the Arbitrator as evidence to support a finding that the right shoulder injury was not work related. The Appellant Employer indicated during the arbitration that more weight should be given to this submission based on the evidence that Ms Gill had suffered a spontaneous problem with her left shoulder a number of years earlier. It was therefore to be expected, in the submission of the Appellant Employer, that Ms Gill would develop problems in her right shoulder that would also be totally spontaneous and not related to her work or to the fall. Further it was submitted that it was merely co-incidence that the right shoulder problems developed within a number of months of the injury. Counsel for Ms Gill submitted that this issue should be viewed in the light of Ms Gill’s evidence as to the development of the shoulder pain not having been challenged and the logicality of an injury to an elbow causing subsequent shoulder problems.
The entries in the clinical notes regarding activities reported by Ms Gill that resulted in pain were not specifically dealt with by the Arbitrator in his Reasons. The entries are, on the face of them, reports by Ms Gill to Dr McArthur of activities that increase the pain she is suffering in her right shoulder. They are consistent with the finding made by the Arbitrator regarding the symptoms in the right shoulder not becoming apparent until approximately August 2003 (paragraph 20 of Reasons). In the context of the entirety of the evidence, they are merely reports or examples of aggravating activities and cannot, on a fair reading of the evidence, be the foundation for a finding that the activities reported as aggravating the symptoms in fact caused the symptoms. It is not appropriate for this evidence to be considered in isolation from the entire body of the evidence before the Arbitrator. The evidence in the notes of Dr McArthur does not sustain the submission made by the Appellant.
It is not expected that a Statement of Reasons will cover every submission made by the parties. As noted above, the Reasons do not specifically deal with this submission. It has not been demonstrated that the Arbitrator was in error given the nature of the evidence, the submission and the manner in which the issue was dealt with at the Arbitration.
On a fair reading of the Reasons, it is clear that the Arbitrator had proper regard to the medical and other evidence. Consequently, this ground of appeal fails.
(b) Did the Arbitrator err in failing to properly consider and determine a relevant jurisdictional issue?
The Appellant Employer alleges the Arbitrator failed to properly consider and determine a jurisdictional issue said to arise from the failure by the claimant to notify or submit a claim in respect of an alleged injury to the right shoulder. I note that this issue was not extensively canvassed during the arbitration, not vigorously argued and not significantly canvassed in submissions.
It is unfortunate that this issue was not specifically addressed in the Statement of Reasons. It is however understandable in light the manner in which the Applicant Employer’s case was presented at the arbitration. For the reasons set out below I am of the view that there is sufficient evidence that there was notice of the injury and therefore nothing turns on this, as the argument is unsustainable in any case.
Considerable guidance can be found in relation to this issue from the decision of Acting Deputy President Roche (as he then was) in the matter of Star City Limited v Hudson [2006] NSWWCCPD 288 (‘Hudson’). This matter was the subject of an appeal to the Court of Appeal which was dismissed with costs on 18 July 2007 (Star City Pty Ltd v Hudson [2007] NSWCA 188). I will not restate the entirety of the principles of law extensively set out in the above Presidential decision.
The issue of jurisdiction is determined by an application of section 289 of the 1998 Act. ‘Notice of injury’ is dealt with in section 254, with ‘notice of claim’ being dealt with in section 260.
The “WorkCover Guildelines” referred to in section 260 are the Guidelines published in December 2001. They set out the procedures for the making and handling of claims under Part 3 of the 1998 Act. The making and handling of claims is set out in Part 2 of the Guidelines.
A claim must be made “in writing on a form designed for making a claim for workers compensation benefits pursuant to the Workers Compensation Act 1987 and the WorkplaceInjury Management and Workers Compensation Act 1998” (Guidelines, part 2 rule 4).
The purpose of the ‘claim’ provisions in the Guidelines is to require that an employer be given fair notice of a claim so that it can meet it in terms of any necessary investigations and medical examinations it may wish to arrange.
The transcript of the arbitration demonstrates that this issue only occupied a very brief part of the proceedings and was not elaborated on by the solicitor for the Appellant Employer (transcript page 4 lines 15 -20).
The Arbitrator failed to deal with the matter of the ‘notice of claim’ directly in the Reasons. The Reasons given by the Arbitrator do however clearly set out the evidence that supports the causation of the right shoulder injury having resulted from the injuries sustained in the fall on 10 January 2003.
Annexed to the ‘Application to Resolve a Dispute’ (‘Application’) are copies of letters to “The Claims Officer, Mayne Group Workers Compensation” and “The Proper Officer, Mayne Health Laverty Pathology”, each in identical terms and dated 7 October 2004. The letters advised that Steve Masselos & Co were acting on behalf of Ms Gill “…with respect to a claim for compensation for injuries sustained by her during the course of her employment on 10 January 2003”. The balance of the letter is what may be described as the ‘usual terms’. Also attached to the Application is an earlier letter addressed to “The Proper Officer, Mayne Health Laverty Pathology”, dated 20 July 2004, from Steve Masselos & Co seeking many of the details required for the completion of a ‘claim form’ as prescribed in the Guidelines. This letter also indicated that Ms Gill sustained injuries on 10 January 2003 whilst in their employ.
The Appellant Employer’s Reply stated under the Heading ‘PART 3 Disputed Details’ the following: ‘ALL ISSUES IN DISPUTE FOR THE REASONS DISCLOSED IN DOCUMENTS AND EVIDENCE’.
The medical report from Dr Stapleton obtained by the Appellant Employer over 6 months prior to the filing of the application by Ms Gill directly addresses the issue of injury to the right shoulder.
The Application annexed copies of WorkCover Medical Certificates from Dr McArthur. From around October 2003 the certificates made mention of symptoms in the right shoulder (‘soft tissue injury R shoulder’). The Application was filed with the Commission on 23 December 2004. The injury described in the application (next to the question regarding the description of how the injury occurred) is to the “Right arm” as a result of both the slipping in the driveway on 10 January 2003 and the “Nature and Conditions of employment from 1986 (sic) to date and cont.”.
Further, Ms Gill annexed the reports of Drs Kemp, McArthur and Patrick with her Application. It would have been clear from these reports that the injury to her shoulder was an integral part of her claim.
In the present case the Appellant Employer arranged for a number of medical examinations of Ms Gill relating to her injury. In his report of 19 May 2004 Dr Stapleton noted, at page two, that Ms Gill had a problem in her right shoulder from “nine months after the fall”. This report precedes the Application by over seven months. As Ms Gill had been questioned by Dr Stapleton and had her right shoulder examined by him it is not surprising that she did make a new claim form. The reports of Drs Hughes and Edwards (who saw Ms Gill on behalf of the Appellant Employer after the Application was lodged) also mention the right shoulder problem and conclude that her condition was unrelated to the fall.
The evidence before the Arbitrator demonstrated that the Appellant Employer was on notice of both the ‘injury’ to the right shoulder and of the claim for the right shoulder by early 2005. Not only did the Appellant Employer have notice of the injury but its own doctors dealt with that injury in detail.
There is no submission made by the Appellant Employer (either in this appeal or during the arbitration) to the effect that the Statement of Ms Gill in evidence should not be accepted. Her statement was not challenged during the arbitration. The statement clearly claimed that she suffered injuries as a result of the fall on 10 January 2003 and that she currently suffered restrictions with respect to her right shoulder. The conflicting medical evidence concerns the nexus between the fall and the right shoulder injury and this issue was resolved by the Arbitrator as set out elsewhere in this decision.
On the basis of this evidence I am satisfied that the Arbitrator was correct in finding that the right shoulder symptoms have resulted from the right elbow injury.
In relation to whether or not a claim had been made with respect to Ms Gill’s right shoulder. It is my view that the evidence in this matter supports the position that the Appellant Employer was very well aware of a claim with respect to an injury to the right shoulder and had been aware of this claim for a significant period of time.
It could be inferred from the Reasons that the Arbitrator decided the question of jurisdiction in the affirmative as he proceeded to determine the matter.
I am also of the view it was open to the Arbitrator to find that the right shoulder injury had resulted from the right elbow injury.
In these circumstances I do not believe there has been a failure by the Ms Gill to comply with section 260 or the Guidelines in respect of making her claim.
If I am wrong on this point and it is felt that a separate claim was required in respect of the right shoulder symptoms then the provisions of section 260(5) are applicable. It was Ms Gill’s case from a time months before the Application was lodged that her right shoulder symptoms had resulted from her right wrist injury.
.
I am fortified in this conclusion by the terms of section 354 of the 1998 Act, the principle extracted from Barbour v BHP Steel Pty Limited[2004] NSWWCCPD 42 in the Star City matter. Parties are not restricted to issues strictly ‘pleaded’.
The Commission is bound by the rules of procedural fairness. In the context of the ‘notice’ provisions that means no more than that the employer must be on notice of the claim made against it and the nature of the dispute it has to meet (Tan v National Australia Bank Limited[2006] NSWWCCPD 115 at paragraph 81). An employer is also entitled to have a fair and reasonable opportunity to prepare for and meet the claim against it. In this case, as the evidence demonstrates, the Appellant Employer has had every opportunity to prepare for and meet Ms Gill’s claim.
The Appellant Employer alleges the Arbitrator failed to properly consider and determine a jurisdictional issue said to arise from the failure by the claimant to notify or submit a claim in respect of an alleged injury to the right shoulder. The Arbitrator proceeded on the basis that there was a claim in relation to both the right shoulder and right elbow (see paragraph 3 of the Reasons) and that he had jurisdiction. The Reasons document did not explain how the Arbitrator reached that conclusion, which is not surprising given the manner in which it was raised on behalf of the Appellant Employer and the circumstances of this matter. In my opinion it is beyond doubt that the Appellant Employer was on notice of the right shoulder injury. It was included in the Medical Certificates provided, it was referred to by Dr Stapleton who examined Ms Gill on behalf of the Appellant Employer, it was referred to in medical reports relied upon by Ms Gill, and was included in the Application. I have determined this issue and find the Appellant Employer had been given notice of this claim and that the claim for the right shoulder resulted from the injury to the right elbow.
I also find that there was sufficient evidence to support a finding of ‘special circumstances’ under section 254(3)(c). The relevant subsection provides that failure to give notice of injury is not a bar to the recovery of compensation if “the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened”. In the present case, the Appellant Employer had knowledge of the right shoulder injury.
(c) Did the Arbitrator err in reversing the onus of proof?
The Appellant Employer alleged the Arbitrator reversed the onus of proof in two respects. The first related to the manner in which the Arbitrator dealt with the clinical notes of Dr Ferguson and the second to how the Arbitrator dealt with the reports of Drs Edwards and Hughes.
In a paragraph of the Appellant Employer’s submissions dealing with the handwritten clinical note of Dr Ferguson for 8 May 2000, the Appellant Employer alleged the Arbitrator “…reversed the onus of proof concerning the nature and extent of the pre-existing condition by purporting to require the appellant to make submissions on and identify the nature of the problem rather than requiring the respondent to prove the respondent’s case and to prove in particular that the respondent was not suffering from a previous problem with the right shoulder.”
I have already found that, on the evidence before the Arbitrator, it was open to him to find there was no pre-existing condition in Ms Gill’s right shoulder. The Arbitrator did not accept the Appellant Employer’s submission. In my view he correctly rejected the submission of the Appellant Employer that there was a pre-existing condition and relied upon a proper consideration of the relevant evidence in the matter. No error of law is demonstrated. It is not that the Arbitrator reversed the onus; rather he did not accept the submissions of the Appellant Employer in this regard.
The second instance in which it is alleged that the Arbitrator reversed the onus of proof is in respect to the reports of Drs Edwards and Hughes.
The Reasons demonstrate that the Arbitrator considered that both Dr Edwards and Dr Hughes had not offered an alternate explanation for the right shoulder symptoms suffered by Ms Gill. Both doctors’ reports simply stated these symptoms did not relate to the events of 10 January 2003.
Whether or not the basis for opinions has been explained in a report, was correctly identified by the Arbitrator as a factor that can assist in determining the appropriate weight to be given to evidence (see Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 and Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34).
The Arbitrator did not reverse the onus of proof, rather, he sought to attempt to reconcile the medical opinions in an appropriate fashion, as he was required to do.
For these reasons I find that the Arbitrator did not reverse the onus of proof in this matter, and therefore no error is demonstrated.
(d) Did the Arbitrator err in finding that employment was a substantial contributing factor to the alleged injury?
The Court of Appeal in McMahon v Lagana & Anor [2004] NSWCA 164 held that whether employment is a substantial contributing factor to an injury is a finding of fact and is a matter of impression and degree (at paragraph 32). This is obviously a matter for the Arbitrator to determine having regard to all of the evidence, both medical and lay.
It was submitted on behalf of the Appellant Employer that:
“In particular the reports relied on do not prove (or even attempt to prove) any connection between the incident alleged and the condition of the respondent worker’s right shoulder. In this regard the Appellant relies on the observations of the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (16 Feb, 2007) and in particular the statements of McColl JA from Paragraphs 130 -135.”
I have had regard to the observations made by the Court of Appeal in South West Sydney Area Health Service v Edmonds [2007] NSWCA 16 (particularly paragraphs 130-135).
Although the medical reports and other evidence provide limited evidence with respect to causation of the symptoms in the right shoulder, there is nevertheless, considerable agreement in several reports to the effect that the right shoulder injury resulted from the fall. The contrary evidence that the injury is not work related is in the form of bald statements (i.e. not supported by reasons) from doctors providing reports on behalf of the Appellant Employer. The Arbitrator undertook the exercise of weighing and reconciling the evidence in order to determine what the preferred position should be. This has been considered in detail elsewhere in this decision.
I am of the view that it was open to the Arbitrator to make the finding in his decision and, in particular, to prefer the views of Ms Gill’s treating doctor and the AMS’s as he did for the reasons which were expressed.
In my opinion, it was open to the Arbitrator to find such causal connection upon a consideration of all the evidence, including the worker’s own evidence and that of the doctors concerned, particularly Dr McArthur. I find the Arbitrator has not erred in finding that employment was a substantial contributing factor to the injury.
(e) Did the Arbitrator err in not providing adequate reasons for the decision?
This ground of appeal is supported by the submission that the Arbitrator failed to give reasons with respect to the issue whether Ms Gill’s employment was a substantial contributing factor to any alleged injury. There is obviously overlap with the previous ground of appeal.
At paragraph 21 of the Reasons the Arbitrator quotes the following sentence from the report of Dr McArthur: “There is no doubt in my mind that these injuries (i.e. right elbow and right shoulder) are a result of the fall.” Dr McArthur had the benefit of treating Ms Gill from immediately after the fall. The doctor’s opinion is supported by observations made on his examination of Ms Gill of the progressive nature of problems with her right elbow, her right upper arm then her right shoulder.
At paragraph 22 of the Reasons the Arbitrator notes and takes into account the opinion of the first AMS who examined Ms Gill (Professor Higgs) and observes that he was satisfied that employment was a substantial contributing factor to those injuries (and then proceeded to make a 4% WPI due to shoulder restrictions). After considering and weighing all the evidence he found consistency of this opinion with the statement of Ms Gill, the opinion of the Panel and the evidence of Dr McArthur. The only opposing evidence is the opinions of the three Appellant Employer doctors who did not give reasons for their opinions that the right shoulder problem was not work related.
At paragraph 23 of the Reasons the Arbitrator noted the opinion of the Panel which was “…also satisfied that the incident that occurred on 10 January 2003 was the catalyst for the development of the symptoms and pathology which justified the finding of whole person impairment attributable to the injury of the right shoulder” (see paragraph 25 of its report). The Arbitrator noted that, although the Panel revoked the Certificate issued by the AMS, it confirmed the 4% WPI due to shoulder restrictions. The Panel was of the view that although the AMS had overlooked the evidence of Dr Kemp, the Panel had no reason to doubt the history given to the AMS at the time of interview ‘namely that she had not previously suffered any right upper limb problems prior to 10 January 2003’. Further the AMS had found Ms Gill suffered pain at the right supraspinatus tendon region of her right shoulder girdle area. They were further satisfied that there was ‘insufficient evidence of pathology and more particularly complaint by the worker to find that prior to the incident of 10 January 2003 [Ms Gill] had suffered any discernable impairment in respect to the right arm at or above the elbow.’ The Panel then goes on to state that it is satisfied ‘that the incident which occurred at work on 10 January 2003 was the catalyst for the development of symptoms and pathology which justify the finding of whole person impairment attributable to the injury to the right shoulder’ that 4% was a fair assessment of the WPI.
At paragraph 24 of the Reasons the Arbitrator indicates that he finds the opinions of these doctors persuasive, particularly as they are neutral assessors and as their opinions are consistent with the opinion of Dr McArthur who provided the majority of her treatment in this matter.
I find the Arbitrator gave adequate reasons for finding that employment was a substantial contributing factor. Consequently, this ground of appeal fails.
(f) Did the Arbitrator err in wrongly stating that there was no dispute between the parties as to an incident that occurred on 10 January 2003?
At page 4 of the transcript, there is record of a concession made on behalf of the Appellant Employer during the arbitration that Ms Gill fell over on 10 January 2003 and injured her elbow. The dispute raised by the Appellant Employer concerns the injury to Ms Gill’s right shoulder.
It is my view that the Arbitrator has not ‘..mistaken the limited concession made on behalf of the appellant as to the occurrence of an incident (as opposed to an injury) on the 10th January 2003” as submitted by the Appellant Employer. Rather, I am of the view that a fair reading of the transcript of the proceedings, as confirmed by the contents of paragraphs 12 to 25 of the Reasons, discloses that the Arbitrator was alive to the distinction submitted.
The Arbitrator did not accept the submissions of the Appellant Employer on the issue of the injury to the right shoulder not having been the result of the fall and gave his reasons. The evidence does not support the conclusion urged by the Appellant Employer. There is abundant evidence to support this view, particularly from the medical reports (as discussed above) and the statement of Ms Gill (which was not challenged). The significant contradicting evidence was the bare statements of the three Appellant Employer doctors, the note in Dr Ferguson’s clinical record which, as noted above, cannot properly be construed to have any meaning and the mention of knitting (and other activities) and pain in the shoulder in the notes of Dr McArthur which, I consider, can only be evidence of activities which aggravate the right shoulder problem.
This ground is not supported by the evidence before me and therefore fails.
DECISION
As each of the grounds of appeal has failed, so the appeal itself fails. I confirm the Arbitrator’s finding that the applicant suffered an injury to her right shoulder and elbow on 10 January 2003 arising out of and in the course of her employment.
COSTS
The Appellant Employer is to pay Ms Gill’s costs of appeal.
Joanne Muller
Acting Deputy President
23 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JOANNE MULLER, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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