Melissa Hume v Soertz Family Trust No 1 & 2 t/as KFC Dural
[2012] NSWWCCPD 55
•3 October 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Melissa Hume v Soertz Family Trust No 1 & 2 t/as KFC Dural [2012] NSWWCCPD 55 | ||||
| APPELLANT: | Melissa Hume | ||||
| RESPONDENT: | Soertz Family Trust No 1 & 2 t/as KFC Dural | ||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-11237/11 | ||||
| ARBITRATOR: | Ms C D’Souza | ||||
| DATE OF ARBITRATOR’S DECISION: | 3 July 2012 | ||||
| DATE OF APPEAL DECISION: | 3 October 2012 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; assessment of evidence; unsatisfactory presentation of appeal; non-compliance with Commission’s Practice Directions; unsatisfactory pleadings | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Schofield King Lawyers Pty Ltd | |||
| Respondent: | Gillis Delaney Lawyers | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 3 July 2012 is confirmed. Each party is to pay her or its own costs of the appeal. | ||||
BACKGROUND
Melissa Hume worked for the respondent employer at KFC Dural as a casual part-time customer service worker from 2007 until April 2011. She worked about eight hours per week. Throughout most of this time, she was a school student, completing her Higher School Certificate (HSC) in 2010.
She alleged that she injured her right wrist as a result of repetitive work and lifting in the course of her employment with the respondent on 9 August 2010. She claimed weekly compensation of $60 per week from 9 August 2010 to 17 November 2010, lump sum compensation of $2,750 in respect of a two per cent whole person impairment due to the condition of her right upper extremity and a general order for the payment of hospital and medical expenses.
The arbitration proceeded with submissions from both sides, but neither party sought to call any oral evidence.
In a reserved decision delivered on 3 July 2012, the Arbitrator stated that, in view of the lack of contemporaneous medical and other evidence in support of the claim, she was not satisfied that Ms Hume had established the necessary causal connection between her employment and her wrist condition. She therefore concluded that Ms Hume had not discharged the onus of proof that she had suffered a personal injury arising out of or in the course of her employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act), and she made an award for the respondent with no order as to costs.
Ms Hume has appealed the Arbitrator’s determination.
PRELIMINARY MATTER
Monetary threshold
There is no appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) unless the “amount of compensation at issue on appeal” is both “at least $5,000” and “at least 20% of the amount awarded in the decision appealed against” (s 352(3)).
The respondent has submitted that the appeal does not meet the monetary threshold in s 352(3) because the compensation at issue on appeal is only $4,245.45. That amount is made up as follows:
(a) weekly compensation totalling $840;
(b) lump sum compensation of $2,750, and
(c) hospital and medical expenses under s 60 of $655.45.
Ms Hume originally claimed medical expenses of $2,305.45, which included $1,650 for a medicolegal report from Dr Conrad. The respondent’s contention is that, once the cost of Dr Conrad’s report is excluded, as it should be because it is only a medicolegal expense, the compensation at issue on the appeal is below the $5,000 threshold in s 352(3).
The respondent’s submission has ignored s 73 of the 1987 Act, which provides that “the obtaining of a permanent impairment medical certificate and any examination required for the certificate are taken to be a medical or related treatment for the purposes of Division 3” if the medical practitioner has completed WorkCover training in respect of the assessment of the degree of permanent impairment and the worker has given the employer a copy of the certificate.
There is no dispute that Dr Conrad is a WorkCover approved specialist who has completed WorkCover training in respect of the assessment of the degree of permanent impairment, or that his report, which included a permanent impairment certificate, was given to the employer. It follows that the cost of obtaining the report and the examination required for it are taken to be medical or related treatment under Div 3 of the 1987 Act, which deals with “compensation for medical, hospital and rehabilitation expenses etc”.
The term “compensation” is defined in s 4 of the 1998 Act to include “any monetary benefit under” the 1987 Act or the 1998 Act. It follows that the combined effect of s 73, and the fact that the cost of medical or related treatment is “compensation” under the legislation, is that the cost of Dr Conrad’s report is “compensation” that can be taken into account in determining if an appellant has satisfied the $5,000 threshold in s 352(3).
When the cost of Dr Conrad’s report is added to the other compensation claimed, the total compensation “at issue” in the appeal is $5,895.45 and the first threshold in s 352(3) is satisfied. As the Arbitrator made an award for the respondent, the whole of the compensation claimed is at issue and the second limb of s 352(3) is also satisfied (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
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.
EVIDENCE
Lay evidence
Ms Hume
In a statement dated 15 February 2012, Ms Hume said that she worked for the respondent for approximately eight hours per week doing shifts over the weekend and some during the week. Her role included customer service on the front counter, burger station, drive through, cooking chips and restocking fridges.
Her duties ranged from working the cash register to replenishing the food. To do that, she had to place chicken pieces onto hot steel trays and carry them to and from the warmer to be stored. Doing that caused “irritation” to her right wrist, which she thought was just a strain.
She added that she usually worked in “Drive Thru”, which involved packaging the customer orders. This required her to use tongs to place chicken pieces into containers. When the chicken ran out, she would “grab more trays of chicken from the warmer to replace them”. When the “fries” ran out she would have to place chips into a basket with a handle, then lift and lower them into cooking oil. Once cooked, she emptied the contents onto a tray “with a fast twisting motion”.
Ms Hume said that the actions described in the preceding paragraph placed “great strain” on her right wrist and would cause her pain. She said that she did not report the pain to the manager, as she thought it was unnecessary “as it seemed minor”, and the tasks were required to be “consistently carried out throughout the whole shift”.
She recalled a group meeting where workers were told that KFC Dural had the lowest “reported incidence [sic incident]” rate among the NSW KFC outlets. It was “the work’s culture to not report these things”.
Workers were rotated to different positions if people required help, went home or went to lunch.
After several more shifts (presumably after first developing symptoms, though this is not clear) the pain “started to become more painful” and Ms Hume became worried because she started to develop difficulty in her writing. She was concerned because her trial HSC exams were approaching in about August 2010 and she did not want to be disadvantaged.
Ms Hume said she saw her general practitioner, Dr Stanton, on 14 August 2010. Dr Stanton ordered x-rays and referred her to Dr Chan, an orthopaedic surgeon, who she saw on 25 August 2010. She told Dr Chan about the pain in her wrist and that it would intensify with prolonged periods of writing, which caused her concern due to her upcoming exams.
Dr Chan arranged for an MRI scan which showed moderate joint effusion and synovitis of the right wrist. Dr Chan recommended physiotherapy and a wrist support.
On or around 20 August 2010, Ms Hume told her manager, Brett Hannaford, that she had “sustained injury in [her] right wrist and [would] not be able to work” as she needed her wrist to be less strained so she could study and sit her exams if she had no scribe. At about the same time, she applied to the Board of Studies for a scribe for her trial exams. That request was granted for the trials, but not for the final HSC exams in late October and November 2010.
After her exams, Ms Hume returned to work for three or four weeks and then took holidays in Hong Kong. She returned to work after that break and resigned on 24 April 2011.
Brett Hannaford
Mr Hannaford was the respondent’s manager in 2010. In his statement dated 10 February 2012, he said that from the end of July 2010 Ms Hume and her sister, Amy, stated that they needed time off to study for the HSC. Though he wanted them to work at least one shift per week, they declined “as they needed to study”. After the HSC, they both returned to work in early November 2010.
He said he asked Ms Hume how they went in the HSC and she said they both got great results and that they had been studying 12 hours a day “for the last three months”.
Natalie Soertz
Ms Soertz is the franchisee of KFC Dural. She said that, as Ms Hume was employed as a member of the customer service team, not of the food service team, her duties involved serving customers, packing orders, burger preparation, cooking chips, nuggets and popcorn chicken, and maintaining a clean restaurant and work stations. It was not part of her duties to place chicken pieces onto steel trays and carry them to and from the warmer.
Food service team members would rack cooked chicken pieces onto trays “with 1/2 racks on them and place them in the warmer”. Any team member would remove one of the half racks at a time and swap with an empty half rack in the display cabinet. The most a half rack would carry was 18 pieces of chicken, which weighed approximately 2.5 kg.
In the customer service area, there was “greater rotation of tasks” and a worker would complete a range of different tasks “with different movements and never only do 1 task for a whole shift”. No worker was required to do a task “with a fast twisting motion”.
Ms Hume had not reported any pain or inability to complete certain tasks throughout any shifts prior to time off for her HSC, or on her return to work after her exams or after her holiday in December 2010.
With regard to the suggestion that KFC Dural had the lowest reported incident rate among KFC outlets in NSW, Ms Soertz said there was no ranking known of the lowest incident rate in NSW. She agreed that it would have been mentioned that “incidence [sic] reporting” was low and the importance of reporting accidents or incidents was stressed to the team. Incident reporting was encouraged, not discouraged.
Medical evidence
Dr Stanton’s notes record that she saw Ms Hume on 25 July 2010 for tonsillitis and noted that she had her “HSC this year”. Dr Stanton also noted “?myopia” and that Ms Hume was seeing an optometrist.
On 8 August 2010, Ms Hume saw Dr Stanton again. The doctor’s notes record:
“Hand pain
Secondary to study for HSC”.
Under “Actions”, Dr Stanton recorded, among other things, “[l]etter written re. Certificate – Medical”. She suggested a trial of Voltaren. Dr Stanton provided Ms Hume with a medical certificate on 8 August 2010. The relevant part of the certificate states:
“In my opinion, she is suffering from an acute strain injury of the right hand and will be unable to complete her trial exams to the best of her ability and request that this should be considered in her marking. She had been referred to an orthopaedic surgeon for further evaluation.”
Ms Hume saw Dr Stanton again on 13 August 2010. Dr Stanton’s notes record:
“Referral letter – orthopaedic
Needs xray wrist firstActions:
Letter printed.Imaging request printed to P R P Diagnostic Imaging: Plain X-ray – Wrist. (wrist pain – repetitive strain injury)
Prescription printed: Vivaxim 0.025 mg; 160 ELISA units Syringe For doctor’s use” (emphasis in original)
On 13 August 2010, Dr Stanton referred Ms Hume to Dr Chan. The referral letter stated:
“Thank you for seeing [Ms Hume] regarding right hand aching – especially in the lateral wrist and middle finger tendon. She is studying for her HSC and is not coping.
I would be grateful if you can assist us for further assessment, investigations and advice on management.
Active:
Not recorded.”
Dr Chan saw Ms Hume on 25 August 2010. He reported to Dr Stanton that, prior to her HSC commitments, Ms Hume played basketball and tennis, swam and danced. He noted that she worked part-time at KCF Dural. She presented with a five week history of right wrist pain. The pain was on the ulnar side and “along the third ray”. He added:
“The pain is intermittent and worse with writing. With prolonged writing, the forearm feels fatigued. She also had pain radiating up the medial side of her forearm towards her elbow. She had not noticed any pins and needles or clicking. She has tried wearing a wrist support, but this has not helped her at all.”
Dr Chan thought that Ms Hume had “an element of ulnar nerve compression as well as an extensor tendinopathy”. He advised her to organise her homework so that she had alternating periods of reading and writing, so that there were no prolonged periods of writing. He referred her for an MRI scan.
On receipt of the MRI scan, Dr Chan reported to Dr Stanton on 1 September 2010 that there was no tendinopathy around the extensor tendons, but there was “an effusion within her DRUJ” and a “small ganglion at the pisotriquetral joint”. On repeat examination, the pisotriquetral joint and the DRUJ were both non-tender and not irritable. Her ulnar nerve examination remained positive. Dr Chan said:
“I am not entirely certain what is causing [Ms Hume’s] pain. The only thing I have uncovered is a mild cubital tunnel syndrome. I have referred her to a hand therapist for a night elbow splint, nerve gliding and nerve stretching exercises. I have asked her to return if her symptoms persist or worsen.”
Dr Conrad examined Ms Hume for medicolegal purposes on 23 August 2011 and reported to her solicitors on 24 August 2011. He took a history that she had worked for KFC in customer service for about eight hours per week from October 2007. A lot of her work was “heavy and repetitive, such as lifting up heavy boxes of chips and lifting heavy baskets of chips with her right arm and putting them into deep fryers”. Due to this heavy repetitive work, in about August 2010, she felt pain in her right wrist but continued working in pain.
He referred to the MRI scan, which he said showed “moderate joint effusion and synovitis of the right wrist” and said that Dr Chan had diagnosed “extensor tendonopathy [sic] and ulnar nerve compression”. Ms Hume stopped work towards the end of August 2010 and, after a while, returned to work, doing her normal hours and work, until she left in March 2011 for other reasons. Dr Conrad noted that Ms Hume finished her HSC in November 2010.
Under “opinion”, Dr Conrad said that Ms Hume had been “involved in heavy, repetitive work at Kentucky Fried Chicken in Dural. As a result, she sustained radioulnar synovitis and ganglion in her right wrist”. He then gave an assessment of whole person impairment.
Other evidence
The respondent relied on a document prepared by Dr Chan on 25 August 2010 and produced to the Commission by the NSW Board of Studies. Dr Chan made a provisional diagnosis of extensor tendinopathy and ulnar nerve compression. He said that the condition would affect Ms Hume’s day-to-day functioning in the classroom because of pain with prolonged writing and that she would benefit with a scribe.
THE ARBITRATOR’S REASONS
After summarising the evidence and the parties’ submissions, the Arbitrator noted that Ms Hume bore the onus of establishing that, on the balance of probabilities, she had sustained an injury within the meaning of s 4 of the 1987 Act and, if so, that her employment was a substantial contributing factor to that injury.
She said that Dr Conrad had a history that the injury had been caused by “a lot of heavy and repetitive work” at KFC, but he did not refer to her performing fast twisting movements in the course of her work, and he made no mention of the effect of studying for the HSC on her wrist or of the trouble she had with writing.
The Arbitrator also observed that, while Dr Conrad said that Ms Hume did heavy repetitive work, he did not refer to specific weights or the frequency of the tasks undertaken, and he did not appear to have the benefit of any objective information about the weight of the boxes and baskets of chips which he felt had caused the injury.
Given the focus on writing difficulties and the HSC “situation” in other evidence, and given that Dr Conrad had not discussed the effects of the HSC activities, it appeared that the history on which he based his opinion was “at the least, incomplete”. The Arbitrator found this “especially noteworthy” because Ms Hume had worked for KFC since 2007, presumably doing the same type of work and there was no evidence of any similar problems during that earlier time.
Taking account of the matters noted above, the Arbitrator preferred the opinion of Dr Stanton to that of Dr Conrad, who examined Ms Hume 12 months after the alleged injury. Dr Stanton’s notes indicated that she had seen Ms Hume reasonably frequently for a number of matters and, in the Arbitrator’s view, was in a better position to assess the apparent cause of her difficulties in August 2010 than Dr Conrad was.
The tasks described in the evidence referred to lifting items weighing up to 3 kg. That did not illustrate any particularly heavy lifting. To the extent that certain tasks may have been repetitive, the Arbitrator noted and accepted the evidence that there was “a fair degree of rotation of staff between jobs”.
The Arbitrator rejected the submission that there was no medical evidence to refute Dr Conrad’s report. She said that KFC relied on the contemporaneous records of Dr Stanton, which had “no reference to wrist pain on 25 July 2008 [sic 2010]”, which was within the time of the alleged onset of wrist pain. She referred to Dr Stanton’s notes of “8 August 2008 [sic, 2010]” which recorded that the wrist pain was “secondary to HSC study”.
Despite Dr Chan’s history that Ms Hume worked at KFC, he said he was unsure of the cause of the wrist pain. The Arbitrator noted that Dr Chan’s “focus” was on “Ms Hume’s study activities rather than on her work tasks”. In view of his comments, she gave his reports little weight “with respect to causation and they do not assist Ms Hume, but do give some support to KFC”.
In addition, the Arbitrator said that there was no report of injury form or contemporaneous claim form. The Arbitrator noted Ms Hume’s evidence that she had told Mr Hannaford of her injury and Mr Hannaford’s denial that any injury had been reported to him. There was no evidence of any later reference to any problems with the wrist. Apart from Ms Hume’s statement, there was no evidence of any report of injury or claim until the claim for compensation made by Ms Hume’s solicitor on 15 November 2011.
Given the above factors, and noting that there was no issue with Ms Hume’s truthfulness, the Arbitrator found it plausible that, if she did report her difficulties to Mr Hannaford, she “may not have done so in a manner which he understood to be a report of injury, and that there is still no objective evidence to support Ms Hume’s allegations that the culture of KFC was not to report workplace injuries”.
On consideration of all of the matters discussed above, the Arbitrator was not satisfied that Ms Hume had established the necessary causal link between her employment and her right wrist condition. In particular, she noted the lack of contemporaneous medical and other evidence in support of the claim. Ms Hume had not discharged the onus of proof.
ISSUES IN DISPUTE
The submissions in support of the appeal have not complied with Practice Direction No 6 in that they have not properly identified the grounds of appeal and made submissions in support of those grounds. Instead, they have merely set out a discursive narrative of why Ms Hume should have succeeded interspersed with general complaints of alleged errors. That is unacceptable and is the subject to further comment under “other matters” below.
Notwithstanding the unsatisfactory state of the submissions, the issues in dispute in the appeal appear to be whether the Arbitrator erred in:
(a) incorrectly applying the statutory test in determining that Ms Hume had not discharged the onus of proof (the statutory test);
(b) determining that objective information (as to the weight of boxes and baskets of chips) was required (objective information);
(c) concluding that Dr Conrad’s history was “incomplete” and failing to give more weight to his opinion (Dr Conrad’s evidence);
(d) characterising the evidence from the treating general practitioner, Dr Stanton, as an opinion (Dr Stanton’s evidence);
(e) her assessment of the evidence from the treating specialist, Dr Chan (Dr Chan’s evidence), and
(f) failing to find that Ms Hume had suffered an injury and providing no reasoning as to why Ms Hume’s evidence should not be accepted (injury and reasoning).
THE STATUTORY TEST
Submissions
Ms Hume’s solicitor, Mr Hunt, who did not appear at the arbitration, submitted that, in reaching the conclusion that the onus of proof had not been discharged, the Arbitrator made a demonstrable error in that she “incorrectly applied the statutory test”.
He argued that, on the balance of probabilities, there was in fact a causal link between the injury and Ms Hume’s employment formed in light of Dr Conrad’s evidence and Ms Hume’s statement and that, in finding against those opinions with no evidence to the contrary, the Arbitrator erred in “the application of the statutory test”.
Mr Hunt said that there is contemporaneous evidence of Ms Hume receiving an injury to her right wrist in the clinical notes from Dr Stanton and in Dr Conrad’s evidence. Based on Dr Conrad’s evidence, when read with Dr Stanton notes, there is a causal nexus between Ms Hume’s injury and her employment.
Discussion
I do not accept the above submissions.
The Arbitrator referred to the terms of s 4 of the 1987 Act and correctly noted that Ms Hume carried the onus of proof on the balance of probabilities. She was not satisfied that Ms Hume had discharged that onus. The above submissions have provided no reasoned argument in support of the allegation that the Arbitrator applied the wrong statutory test but merely amount to a assertion that the Arbitrator erred in not accepting Ms Hume’s evidence. The failure to accept one side’s evidence may or may not amount to an error, but it does not establish that the Arbitrator incorrectly applied the statutory test.
The submission that there is contemporaneous evidence that Ms Hume received an injury to her right wrist is incorrect. Ms Hume complained to Dr Stanton of pain in her wrist secondary to study for her HSC. That was not a complaint of an injury caused by work but a complaint of pain caused by study. Her complaint of pain to Mr Hannaford was disputed and is considered further below. Mr Hunt’s submission was surprising, to say the least.
OBJECTIVE INFORMATION
Submissions
Referring to the Arbitrator’s statement that Dr Conrad did not appear to have had the benefit of any objective information about the weight of the boxes and baskets of chips which he felt caused the injury, Mr Hunt submitted that there is no requirement for objective information that would be used to form Dr Conrad’s opinion because “heaviness” was a subjective standard. One person may find a basket of chips heavy while another may not.
The question of “heaviness” is a medical one that Dr Conrad implicitly answered in that he was sufficiently satisfied that Ms Hume’s work tasks “gave rise to causation”. His report made “a determination on the basis of [Ms Hume’s] subjective standard of heaviness”. Accordingly, the Arbitrator has made an error of law in determining that objective information was required.
Discussion
I accept that “heaviness” can be a subjective assessment, and that Ms Hume was not required to prove the weight of the objects she lifted before she could succeed. However, the Arbitrator did not base her decision on the lack of objective information about the weight of the objects Ms Hume lifted in the course of her employment. That was merely one observation the Arbitrator made in the course of her assessment of the evidence overall.
The Arbitrator did not say that “objective information” about weights was required before Dr Conrad’s opinion could be accepted, but merely noted that Dr Conrad did not appear to have had the benefit of any objective information about the weights lifted. That was not a critical part of her reasoning and, if it was an error, which I do not accept, it has not affected the outcome.
DR CONRAD’S EVIDENCE
Submissions
Mr Hunt submitted that Ms Hume’s evidence, the evidence of Dr Conrad and the clinical notes from Dr Stanton show that, on the balance of probabilities, there is a causal link between the injury suffered by Ms Hume and her employment.
In respect of the Arbitrator’s statement that Dr Conrad did not discuss the effects of the HSC activities, and that his history was, at the least, incomplete, Mr Hunt submitted that, in arriving at this conclusion, the Arbitrator ignored the fact that Dr Conrad was aware that, at the time of the complaints to Dr Stanton, Ms Hume was studying for her HSC. Therefore, the Arbitrator erred in concluding that Dr Conrad’s history was “at the least, incomplete”.
Just because Dr Conrad did not discuss the “HSC activities”, did not mean that he was not aware of them. While it was conceded that Dr Conrad did not explicitly “discuss the effects of the HSC activities”, it was open to him to do so and to conclude that such activities were the causative factor of the subject injury rather than Ms Hume’s employment. The simple fact is that Dr Conrad did not reach such a conclusion, despite his knowledge of the “HSC activities”.
In light of the above, the Arbitrator drew an “unsubstantiated inference from [Ms Hume’s] evidence that [was] remote and irrelevant for the purpose of satisfying section 4 of the 1987 Act”. Dr Conrad determined that Ms Hume, in the course of her employment, suffered “the injury”. That the effects of the HSC possibly aggravated this injury is irrelevant in terms of causation and is a matter to be dealt with by an Approved Medical Specialist (AMS) under s 323 of the 1998 Act.
Mr Hunt submitted that Dr Conrad’s opinion should have been “held with more weight” (than Dr Stanton’s) “as he is specialized [sic] in the medical issue” and the Arbitrator “exercised an error in discretion”.
Discussion
The first submission under this heading is merely an assertion that Ms Hume should have succeeded and may have been relevant on a review but is of no assistance in an appeal restricted to the identification and correction of error.
The fact that Dr Conrad was aware Ms Hume had completed her HSC in 2010 was, on its own, of no significance and did not advance Ms Hume’s case. What was important was that, as the Arbitrator noted, Ms Hume’s first complaint to a doctor about her hand in 2010 was that her hand pain was secondary to study for the HSC and she made no complaint about her work. That history was inconsistent with Dr Conrad’s history of pain having being caused by activities at work, regardless of the nature of those activities.
Therefore, not only was Dr Conrad’s history (taken one year after the event) incomplete, it was inconsistent with the objective contemporaneous evidence recorded by Dr Stanton. These matters significantly undermined the weight to be attached to his evidence and the Arbitrator was entitled to consider them in her assessment of the case.
The submission that it was open to Dr Conrad to have discussed the effects of the HSC activities, and to conclude that such activities were the causative factor of the subject injury, ignores the evidence. It is extremely unlikely that Dr Conrad turned his mind to whether the HSC activities played a role in the development of Ms Hume’s symptoms in circumstances where he had no history that they were relevant or that they had prompted Ms Hume to see Dr Stanton in August 2010.
The submission that the Arbitrator drew an unsubstantiated inference from Ms Hume’s evidence that was remote and irrelevant is unsustainable nonsense. The unsubstantiated inference the Arbitrator drew has not been identified. The Arbitrator concluded that Dr Conrad’s history was, at the least, incomplete. That was an understatement and it discloses no error.
The submission that Dr Conrad determined that Ms Hume had suffered “the injury” in the course of her employment misunderstands the nature of the issue in dispute. The question of whether a worker has received an injury under s 4 is a matter for the Commission. In determining that question, the Commission must consider all the evidence. Expert medical evidence will be important, but not determinative.
Contrary to Mr Hunt’s submission, the effects of Ms Hume’s studying for the HSC, and the pain that that study caused, were not irrelevant to the question of whether she had received a s 4 injury. Dr Stanton’s history, which Ms Hume never challenged or disputed, was important evidence as to whether she had received an injury and was evidence the Arbitrator was entitled to consider.
The submission that Dr Conrad is “specialized” in the medical issue is, I assume, a submission that, as a specialist, Dr Conrad’s opinion is entitled to greater weight than the evidence from Dr Stanton, a general practitioner. While it may well be that, in some cases, an Arbitrator is entitled to prefer the evidence of a specialist to a general practitioner, that will depend on the evidence in the case. In the circumstances of the present matter, the Arbitrator was not satisfied that Ms Hume had discharged the onus of proof. One reason for reaching that conclusion was that she did not accept Dr Conrad’s evidence. For the reasons discussed above, it was open to her to reject his evidence.
The weight to be attached Dr Stanton’s evidence in general is discussed below.
DR STANTON’S EVIDENCE
Submissions
Dealing with the Arbitrator’s statement that she preferred the opinion of Dr Stanton to that of Dr Conrad, Mr Hunt submitted that Dr Conrad’s opinion (should be) “held with more significance in this matter [compared to Dr Stanton’s opinion] due to the information provided in consultation that would have covered more of the details of the injury in depth over a longer consultation time”. He argued that Dr Stanton’s clinical notes referred to no explicit opinion as to causation and the Arbitrator erred in characterising the notes as an opinion.
Dr Stanton’s referral to Dr Chan implied that Ms Hume was suffering from an injury to her wrist and not coping with study. It did not advise of the cause (of the injury), nor even attempt to and, in coming to the conclusion that this was an opinion on causation, the Arbitrator erred. The manifestation of symptoms while undertaking study was not of itself evidence as to causation. Where clinical notes are lacking in detail, it is erroneous to ascribe greater weight to such evidence in the face of detailed evidence as to causation that Dr Conrad and Ms Hume provided.
Discussion
I do not accept these submissions.
Dr Stanton took an unchallenged history on 8 August 2010 that Ms Hume had hand pain “secondary to study for HSC”. She said in her typed (non-WorkCover) medical certificate on 8 August 2010 that Ms Hume was suffering from an acute strain injury of the right hand. She essentially repeated that opinion in her notes on 13 August 2010 and in her referral to Dr Chan. Given her history, the only reasonable inference is that she believed the wrist pain had been caused by (was “secondary to”) study for the HSC.
Dr Stanton based her opinion on the history she took that Ms Hume was studying for the HSC and “not coping” and Ms Hume’s complaint of pain in her right wrist. That provided a proper basis for the Arbitrator to assess her evidence and she was entitled to prefer it to Dr Conrad’s opinion expressed one year after the event.
The submission that the information provided in consultation with Dr Conrad would have “covered more of the details of the injury in depth over a longer consultation time” is pure speculation. Even assuming that submission to be correct, it does not advance Ms Hume’s case because the Arbitrator did not accept that the work involved “any particularly heavy lifting”. On the question of whether the work was repetitive, the Arbitrator accepted the evidence that there was “a fair degree of rotation of staff between jobs”.
The findings referred to in the preceding paragraph were open on the evidence and were relevant to the weight the Arbitrator gave to Dr Conrad’s evidence. In all the circumstances, it was open to the Arbitrator to prefer Dr Stanton’s evidence to Dr Conrad’s evidence.
The submission that the manifestation of symptoms while studying was not evidence as to causation ignores the fact that that was the only history Dr Stanton took and Ms Hume has not challenged that history. That history was clearly relevant to whether Ms Hume had received an injury in the course of her employment with the respondent.
Dr Stanton’s referral to Dr Chan did not imply that Ms Hume was suffering from an injury. It referred to right hand pain and to Ms Hume not coping. The submission that it “implied” that she suffering from an injury is untenable.
Even if it were accepted that Dr Stanton did not provide an opinion, her evidence was an important part of the history and was evidence the Arbitrator was entitled to take into account in her assessment of the case.
DR CHAN’S EVIDENCE
Submissions
Mr Hunt submitted that Dr Chan did not diagnose the cause of the injury, though the inference should be made that, given the history, working with the respondent was a causative factor. As Dr Chan did not come to a conclusion, it was erroneous of the Arbitrator to prefer “incomplete or equivocal evidence in the face of the detailed opinion of a specialist practitioner (Dr Conrad) and the evidence given by [Ms Hume]”.
The Arbitrator erred in her assessment of the evidence because at no point did Dr Chan advise that he was unsure of the cause of Ms Hume’s wrist pain. At worst, he did not make a judgment but merely allowed the history to speak for itself.
Given that neither Dr Chan nor Dr Stanton provided a definitive conclusion as to the cause of Ms Hume’s wrist injury, the only evidence available that could be used to determine the cause was the evidence of Dr Conrad and Ms Hume. That is particularly relevant given that the respondent did not call any evidence to the contrary.
Discussion
I do not accept these submissions.
There is no basis for the submission that Dr Chan thought that work with the respondent was a causative factor in the development of Ms Hume’s symptoms in August 2010. The fact that he had a history that Ms Hume worked part-time at KFC, but took no history of any symptoms caused by that work, strongly points to the opposite conclusion.
The Arbitrator did not prefer “incomplete or equivocal evidence”. She said that, with respect to causation, she could give little weight to Dr Chan’s reports. Her statement that they did not “assist Ms Hume”, but gave some support to the respondent, was correct. Dr Chan did support an allegation of injury with the respondent and his history of pain being intermittent and “worse with writing” undermined that allegation.
It is correct that Dr Chan did not say he was “unsure” of the cause of Ms Hume’s wrist pain. However, his evidence that he was “not entirely certain” of what was causing Ms Hume’s pain provided ample support for the Arbitrator’s statement.
The submission that the only evidence that could be used to determine causation was the evidence from Dr Conrad and Ms Hume is simply wrong. The Arbitrator was not only entitled to consider all the evidence, but was required to do so. The evidence from Dr Stanton, Dr Chan, Mr Hannaford and Ms Soertz was directly relevant to the weight to be attached to the evidence from Dr Conrad and Ms Hume. Weighing all of the evidence, the Arbitrator did not accept Dr Conrad’s opinions. That conclusion was open to her and discloses no error.
The submission that the respondent did not call any evidence on the issue of causation was incorrect. Ms Soertz gave evidence relevant to that issue and Mr Hannaford also gave evidence relevant to whether any injury had been reported. As there is no evidence that the respondent had had Ms Hume examined by a medical expert, there is no Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference available. The fact that the respondent did not tender evidence from a qualified medical expert was not determinative. Ms Hume carried the onus of proving her case and she failed to discharge that onus.
INJURY AND REASONING
Submissions
The report from Dr Conrad and the statement from Ms Hume clearly state that the injury was caused by Ms Hume’s employment and the Arbitrator should have concluded the same in the absence of any evidence to the contrary.
Ms Hume unequivocally attributed her work as the factor that precipitated her condition and the Arbitrator implicitly rejected her evidence but “gave no reasoning” as to why she should not have been accepted as a witness of truth.
On the sum of the contemporaneous evidence there was proof, on the balance of probabilities, that Ms Hume discharged her onus to prove the causal link between the injury and her employment and the appeal should be allowed.
The Arbitrator could not have reasonably made the determination she did without exercising some error in fact and discretion and in incorrectly applying the statutory test.
Discussion
The above submissions are essentially a repetition of the submissions already considered and rejected. They are based on an assumption that the Arbitrator had to accept the evidence from Dr Conrad and Ms Hume. That assumption is misguided and wrong. The Arbitrator did not accept Dr Conrad’s evidence because his history was incomplete. That conclusion was open and discloses no error.
While the Arbitrator said that there was no issue with respect to Ms Hume’s truthfulness, the submission that the Arbitrator “gave no reasoning” as to why Ms Hume should not be accepted as a witness of truth misstates the issue in the case. The respondent’s case was not that Ms Hume had been untruthful, but that her condition had been caused by writing in preparation for the HSC and not by her part-time work with it, which was neither heavy nor repetitive. The Arbitrator essentially accepted that argument.
Moreover, the Arbitrator gave detailed reasons as to why she did not accept Ms Hume’s case. In addition to the reasons discussed above, the Arbitrator also referred to the lack of any report of injury form or contemporaneous claim form. With regard to Ms Hume’s evidence that she told Mr Hannaford of her injury, the Arbitrator noted his denial of any such report and added that, if Ms Hume had reported her difficulties to him, it was “most plausible” that she may not have done so in manner which he understood to be a report of injury.
Rather than the contemporaneous evidence supporting Ms Hume, it is directly against her.
The submission that the Arbitrator could not reasonably have made the determination she did without exercising some error was unhelpful. Appeals under s 352 are restricted to the identification and correction of error. The broad-brush assertion that the Arbitrator could not have made her determination without having made some error did not advance Ms Hume’s case.
OTHER MATTERS
Several aspects of this appeal require further comment.
Mr Hunt’s submissions did not comply with the Practice Direction No 6 in that they did not properly identify any grounds of appeal or make submissions directed to those grounds. Further, the submissions were not paginated and did not have numbered paragraphs. They consisted, in several instances, of general assertions unsupported by any reasoned argument addressed to the identification of error. The profession is reminded, yet again, that non-compliance with Practice Direction No 6 is unacceptable.
The pleadings in this matter were also unsatisfactory. They alleged that Ms Hume received an injury on 9 August 2010. However, the evidence was that, if Ms Hume had suffered an injury, it occurred due to work over a period of time. Therefore, the pleadings did not match the case presented. While nothing turns on it on the appeal, because it makes no difference to the result, parties are reminded that pleadings should be consistent with the evidence.
Though the Commission is not bound by strict pleadings, applications for relief should clearly and succinctly state the case that the respondent must meet (Far West Area Health Service v Radford [2003] NSWWCCPD 10). Properly, that should occur when the claim is first particularised. However, amendments can and should be made later, subject to any prejudice to the respondent, so that the case is correctly pleaded and the issues are clearly stated.
The particulars/pleadings should properly identify the nature of the alleged injury, how it was said to have been caused, and, in particular, whether the alleged injury is a “personal injury” under s 4(a), or a disease injury under s 4(b)(i), or an aggravation of a disease under s 4(b)(ii) of the 1987 Act. As to the purpose served by pleadings generally, see Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286 – 287.
While I have generally accepted the respondent’s position, namely, that Ms Hume had not made out her case and the Arbitrator made no error, its submission that Dr Conrad’s history could not “be regarded as proving the facts” because it was hearsay was incorrect. The Commission is not bound by the rules of evidence (s 354(2)). Moreover, evidence in a medical history is evidence of the fact (s 60 Evidence Act 1995; R v Welsh (1996) 13 NSWCCR 674; Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 at [42]; Guthrie v Spence [2009] NSWCA 369 at [75]; 78 NSWLR 225). However, that does not mean that it is evidence that must be accepted regardless of its deficiencies and regardless of other evidence in the case.
As observed earlier in this decision, Dr Conrad’s evidence had to be considered with all the evidence in the case and his opinion was only as good as the foundation upon which it was based (City of Brimbank v Halilovic [2000] VSCA 12 at [23] [24]). That foundation was unreliable and not accepted. Having considered all the relevant evidence, the Arbitrator concluded that Dr Conrad’s opinion was not to be preferred and that Ms Hume had not made out her case. That conclusion was open to her and disclosed no error.
DECISION
The Arbitrator’s determination of 3 July 2012 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
3 October 2012
I, TAMI O’CARROLL, 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
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