Michelle Gai Weston t/as Northmead Beauty Therapy (ABN 83824751583) v Szenczy
[2019] NSWWCCPD 38
•22 July 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Michelle Gai Weston t/as Northmead Beauty Therapy (ABN 83824751583) v Szenczy [2019] NSWWCCPD 38 | |
| APPELLANT: | Michelle Gai Weston t/as Northmead Beauty Therapy | |
| RESPONDENT: | Leanne Szenczy | |
| INSURER: | AAI Ltd t/as GIO as agent for Workers Compensation Nominal Insurer | |
| FILE NUMBER: | A1-6046/18 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 16 January 2019 | |
| DATE OF APPEAL DECISION: | 22 July 2019 | |
| SUBJECT MATTER OF DECISION: | Application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Mason v Demasi [2009] NSWCA 227; Nguyen v Cosmopolitan Homes [2008] NSWCA 246 | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Moray & Agnew Lawyers |
| Respondent: | Carroll & O’Dea Lawyers | |
| ORDERS MADE ON APPEAL: | 1. That Michelle Gai Weston t/as Northmead Beauty Therapy be substituted as appellant in this matter and as the respondent in proceedings (below) in matter number 6046/18. 2. The Certificate of Determination dated 16 January 2019 is confirmed. | |
INTRODUCTION AND BACKGROUND
This matter concerns an assessment of competing medical opinions as to the cause of Ms Szenczy’s neck symptoms in circumstances where there were inconsistences in the medical history and as to the pleaded date of injury.
Ms Szenczy’s commenced employment with the appellant employer, Michelle Gai Weston t/as Northmead Beauty Therapy as a Beauty Therapist on 27 February 2006 until 15 August 2014. She underwent surgery to her right shoulder on 18 January 2011, and gradually returned to work full time with no restrictions , before reducing her hours to 3 days a week due to soreness in both shoulders and neck on or about 30 May 2013, on her doctor’s advice. Ms Szenczy made a claim for weekly benefits compensation and medical expenses in respect of the right and left shoulders and neck conditions.
The employer’s insurer issued s 74 notices dated 18 February 2016, 29 July 2016, 21 April 2017, 20 March 2018 and 5 October 2018 declining liability for payment of compensation for neck (cervical) and left shoulder conditions.
Ms Szenczy filed an Application to Resolve a Dispute (ARD) on 16 November 2018 (dated 26 October 2018).
At the arbitration hearing on 9 January 2019, Ms Szenczy confined her claim to a s 60 claim for medical expenses resulting from injury to her neck (during the course of her employment) and a consequential injury to her neck as a result of overuse following injury to her right shoulder. A second allegation was made that the neck injury was caused as a result of the nature and conditions of her employment as a beauty therapist.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
CORRECT IDENTITY OF THE APPELLANT
At the commencement of the hearing before Arbitrator Wynyard, a question arose as to whether or not the then respondent employer, Northmead Beauty Therapy, was a legal entity. The parties undertook to identify the correct legal identity of the respondent employer although this was not done until these proceedings.
The appellant has made application to amend the identity of the appellant pursuant to r 4.2 of the Workers Compensation Commission Rules 2011 (the Rules) to substitute Michelle Gai Weston t/as Northmead Beauty Therapy as the correct legal person in the proceedings.
Ms Szenczy has consented to this amendment. I therefore grant leave to amend the name of the appellant employer in the appeal proceedings as requested by the appellant and consented to by Ms Szenczy. I also make orders substituting the correctly named respondent in proceedings below, 6046/18, pursuant to my power contained in s 350(3) of the 1998 Act. In making this order, to the extent necessary, I dispense with compliance with the Rules.[1]
THE EVIDENCE
[1] 2011 Rules, r 1.6(2).
Ms Szenczy’s statements
Ms Szenczy provided four written statements, one undated and three statements dated 4 February 2016, 29 March 2016 and 6 November 2017 respectively. In her first undated statement, Ms Szenczy advised that she commenced employment with the employer on 27 February 2006 until 15 August 2014, performing massages, pedicures, manicures, facials, waxing and associated tasks. Ms Szenczy stated she developed symptoms in her right shoulder and was referred to specialist Dr Maniam, which resulted in her having surgery in January 2011. She noted that Dr Maniam said that whilst he cleaned her shoulder up to some extent, there was a tear he was unable to repair.
Ms Szenczy said she returned to full-time pre-injury hours with no restriction after a period of incapacity and a gradual return to work, however she continued to experience symptoms in her left and right shoulders. She received injections in her right shoulder in or around 2013 and started experiencing symptoms in her back, neck and soreness and reduced strength in her hands. Ms Szenczy used a range of medications to manage her pain.
Ms Szenczy states that on 30 May 2013 she requested a reduction in hours to 3 days a week due to soreness in both shoulders and neck, on her doctor’s advice. Her hours were reduced by agreement with the appellant to 3 days per week from July 2013 for almost one year, however she says her symptoms worsened from continuing to perform the repetitive tasks of her role. She noted neck pain and soreness when in certain postures and in her upper back and between her shoulder blades.
Ms Szenczy ceased employment with the appellant employer on 15 August 2014. Ms Szenczy notes that she found alternative employment in retail on a part-time basis from 21 May 2015, however ceased work on 15 November 2015 due to increasing symptoms in her left and right shoulders and neck.
Ms Szenczy states that further scans of her right shoulder in or around 2015 indicated some worsening and Dr Maniam recommended arthroscopy and rotator cuff repair, which was undertaken in November 2015. She states that the focus at this time was on her right shoulder, however her left shoulder still had symptoms. She says her doctor recommended arthroscopy to address bursitis in her left shoulder, which treatment was denied by the insurer.
In her supplementary statement dated 29 March 2017, Ms Szenczy outlines concerns she has about the history and contents of the reports by Dr Stephen Quain and Dr Ian Smith dated 5 April 2016 and 16 February 2017 respectively.
Ms Szenczy takes issue with Dr Quain’s view that he was unable to see how she could have developed neck problems in her role as a beauty therapist; that her right shoulder problems were resolved due to surgical repair and that she had capacity to perform light work, despite her complaints of ongoing shoulder, hand and neck pain and daily headaches.
In respect of Dr Smith’s 16 February 2017 report, Ms Szenczy complains that Dr Smith did not note she had ongoing symptoms in her hand and incorrectly stated that Dr Kam recommended a conservative approach to neck treatment. She claims Dr Kam said she needed an operation but that her hand and shoulder problems should be addressed first. Ms Szenczy notes that contrary to Dr Smith’s report, she could not sit comfortably during the examination and altered her position several times due to pain, though she is managing movements. She states she continues to have hand, wrist and elbow pain and difficulty in sitting, standing, lifting, twisting and pulling.
In her supplementary statement dated 6 November 2017, Ms Szenczy provides a detailed explanation of the physical nature of the duties she performed as a beauty therapist. She notes that there was no single incident at work that caused her symptoms, rather, over time she noticed soreness in her shoulder, elbows, forearms, hands, neck and upper back and noticed some tingling in various parts of her body. She said:
“These symptoms were the reason why I eventually reduced my hours in May 2013 and ultimately ceased working August 2014. Only through subsequent investigations have I identified the nature and extent of the problems that I have. There was no single incident at work which caused my symptoms.”[2]
The Medical Evidence
[2] Application to Resolve a Dispute (ARD), p 148.
Associate Professor Nigel Hope
Associate Professor (A/P) Hope provided two reports dated 11 October 2016 and 23 April 2018. In 2016, A/P Hope noted Ms Szenczy had no symptomatic pre-existing pathology in her shoulders, however she had significant C5/6 degenerative disc disease which was not symptomatic, not investigated, not diagnosed nor treated. He noted cervical spine and bilateral shoulder pain was due to occupational overuse (45 hours per week, 6 days per week) over a 12 month period prior to September 2009. He noted treatment given to the right and left shoulders (noting the left shoulder awaits surgical repair) and a discussion had about cervical surgery after left shoulder surgery.
A/P Hope says the MRI of Ms Szenczy’s cervical spine shows permanent aggravation of C5/6 degenerative disc disease (with right C5 and left C6 nerve root compression), right shoulder mild subacromial bursitis (impingement) and left shoulder moderate subacromial bursitis (impingement). A/P Hope noted that left shoulder anthroscopy is required.
In response to specific questions asked in the schedule of questions, AP Hope said the diagnoses were caused by “the deemed accident on 8 September 2009” and that the bilateral shoulder and neck condition is attributable to Ms Szenczy’s employment as a beauty therapist. He said pre-injury duties were permanently inappropriate, and provided details of suitable restricted tasks. A/P Hope recommended consultation with a neurosurgeon to assess Ms Szenczy’s cervical condition, noting “if symptoms progress cervical decompression and fusion [at] the C5/6 level may be considered”.[3] He found the surgery to the left shoulder recommended by Dr Maniam was reasonably necessary.
[3] Report dated 11 October 2016, ARD, p 6.
A/P Hope notes that Dr Quain’s view that the cause of Ms Szenczy’s condition was not work related is at odds with her history of an entirely asymptomatic cervical spine and bilateral shoulders that became permanently symptomatic after 1 year of occupational overuse.
In his report of 23 April 2018, A/P Hope again diagnosed Ms Szenczy with permanent aggravation of C5/6 degenerative disc disease (with right C5 and left C6 nerve root compression), and left and right shoulder mild subacromial bursitis (impingement) (postoperative). He notes:
“Employment is the main contributing factor to the client's condition because the
cervical spondylosis was previously asymptomatic, not investigated, not diagnosed and not treated.
This pre-existing pathology was worsened permanently (aggravated) by work-related upper limb and cervical tasks required of a beauty therapist including massage and pedicures which involve forceful repetitive upper limb use and repetitive neck flexion.”[4]
[4] Report dated 23 April 2018, ARD, p 12.
A/P Hope stated further that “employment caused the permanent aggravation of the pre-existing disease”[5] and C4/5 total disc replacement and the C5/6 anterior cervical discectomy and fusion proposed by Dr Mobbs is a reasonably necessary treatment expense.
[5] Report dated 23 April 2018, ARD, p 13.
Dr Ralph Mobbs
Dr Mobbs, neurosurgeon, provided reports dated 24 January 2018, two reports dated 7 March 2018 and 4 September 2018. In his report of 4 September 2018, in response to a question regarding whether employment was a substantial contributing factor to Ms Szenczy’s condition, Dr Mobbs stated:
“We rely on the truthfulness and honesty of the patient in their accurate reporting of their symptoms in generating a response to this type of question. Given the truthfulness/honesty, I am of the opinion that the patient's employment with Northmead Beauty Therapy is a significant contributing factor to her neck given the type of movements, workloads involved, etc. She is of a relatively youthful age, and the issues with her neck are fairly advanced considering her age and it is likely that additional factors such as work have played a role in her current presentation.”[6]
[6] Report dated 4 September 2018, ARD, p 15.
Following bone scans and flexion/extension x-rays, Dr Mobbs opined that the C4/5 total disc replacement and C5/6 anterior cervical discectomy and fusion was reasonably necessary treatment and would provide Ms Szenczy with significant benefit to her neck, shoulder and arm symptoms.
Dr Grant Walker
Dr Walker, neurologist, provided a report dated 19 October 2016 in respect of chronic pain syndromes and an abnormal MRI. He noted a C4/5 and C5/6 bulge on Ms Szenczy’s cervical spine with some canal stenosis and possible compromise of the right C5 and left C6 nerve. He noted that she had numbness in all her fingers in both hands such that it is impossible to know whether either the right C5 or left C6 nerve was causing her symptoms. He noted Ms Szenczy was offered neck surgery by Dr Kam, but that she was unsure of this for good reason.
Dr Myint Tun
Dr Tun, Ms Szenczy’s general practitioner, provided a report dated 9 August 2016. Dr Tun notes in Ms Szenczy’s work history that she had some time off after right shoulder surgery on 18 January 2011, gradually progressed to full time hours in August 2011 and reduced her hours in May 2013 before ceasing employment in August 2014.
Dr Tun later notes “bilateral shoulder and neck injuries secondary to work related injury on 8 September 2009 as a Beauty Therapist”.[7] Dr Tun noted Ms Szenczy will not be able to perform repetitive movements of shoulders, lifting heavy objects, pushing and pulling heavy loads and exerting excessive static loads onto her shoulders and that “she will likely need further shoulder operations for both shoulders in near future for her rapidly deteriorating symptoms which are not improving with current conservative treatments.”[8]
[7] Report dated 9 August 2016, ARD, p 30.
[8] Report dated 9 August 2016, ARD, p 30–31.
Dr Niranjan Ganeshan
Dr Ganeshan provided a report in respect of an MRI of the cervical spine on 2 February 2015. He notes “isolated discoverterbral degenerative change at C5/6” and “at C4/5, there is a low grade right para foraminal disc bulge without neural compromise”.[9]
[9] Report dated 2 February 2015, ARD, P 34.
Patient medical history – PHC Wentworthville
The PHC Wentworthville Medical Centre’s Patient Medical History (clinical notes) appear to commence on 4 October 2005 and conclude on 16 April 2016.
The clinical notes of 12 August 2005 indicate Ms Szenczy was complaining of “chronic neck and back pain”.[10]
[10] Clinical notes, ARD, p 74.
The clinical notes of 10 and 11 September 2009 note right shoulder pain “from repetitive use of her hands and shoulders at work.”[11] On 14 September 2009 Ms Szenczy underwent an ultrasound of her right shoulder after experiencing right shoulder pain for 3 days after exercising. No focal abnormality was identified and there was no discrete tear within the rotator cuff tendons. A small echogenic focus was demonstrated within the supraspinatus tendon near its insertion.
[11] Clinical notes, ARD, p 70.
On 9 September 2010, Ms Szenczy was referred to Dr Maniam by Dr Tun in respect of recurrent right shoulder pain from tendinosis. She has received past injections by Dr Maniam but was not much relieved. The clinical notes of 10 September 2010 state:
“recurrent shoulder pain and tenderness from injury at work since 8.9.2009 (she did not said [sic] that was work related and cumulative strain to right shoulder as she was concerned that she might loose [sic] her job at the time!). Beautician at work, right handed, using right shoulder for her daily work involving repetitive movements and carrying out forcefuly [sic] repetitions.”[12]
[12] Clinical notes, ARD, p 68.
On 25 October 2010, Ms Szenczy had an MRI and Dr Maniam declared her unfit for work. An arthroscopy surgery for her right shoulder was booked for 18 January 2011. Between March and August 2011, Ms Szenczy continued to experience “mildly reduced shoulder rom all directions, tender over right anterior capsule, supraspinatous tendon, ACJ, deltoid regions, reduced power due to pain: 4+/5, sensation intact, reflexes normal.”[13] Discussions were had with Dr Maniam over this period regarding her gradual return to work on suitable restricted duties, with an upgrade in hours and reduced restrictions to her suitable duties occurring in late July 2011.
[13] Clinical notes, ARD, p 61-66.
On 20 July 2011 Dr Maniam noted his consultation with Ms Szenczy on 1 June 2011. Dr Maniam noted Ms Szenczy had returned to work and was performing 4 hours of work, 4 days a week. Her shoulder symptoms had settled and she had regained a full range of movement to the right shoulder following her surgery on 18 January 2011. Dr Maniam recommended Ms Szenczy continue with her exercise program and allowed her to gradually upgrade her hours at work.
On 12 December 2011, an MRI of Ms Szenczy’s lumbar spine indicated:
“LS/Sl disc is narrowed and degenerate, there is irregularity, thickening and sclerosis of the endplates with marginal spurring. A mild broad-based posterior disc protrusion is present, there has been significant retraction of the disc protrusion detected in the previous MRI scan. Thecal sac is flattened ventrally. There is also early discophytic narrowing of the intervertebral foramina bilaterally. There is a minor posterior bulging of the L4/5 disc.”[14]
[14] Clinical notes, ARD, p 86
A report was provided to Dr Maniam by Caitlin Kapoor on 2 March 2012 following a multi-positional MRI lumbo-sacral spine, which indicates mild multi-level disc bulges, most marked at L4/5, with mild canal stenosis and mild forminal stenosis on the left at L4/5 and L5/S1, most marked at L5/S1 on extension.
On 7 May 2012, Ms Szenczy underwent a CT guided left L4/5 spinal injection. In November 2013 and May 2014, Ms Szenczy’s GP Management Plan and Team Care Arrangement (GPMP/TCA) indicated significant changes in chronic medical diseases, of which “shoulder syndrome” was a listed disease.
On 18 November 2014, Dr Tun referred Ms Szenczy to Dr Maniam again in respect of “worsening right shoulder symptoms, restricted internal and external rotation, tender right anterior capsule, ACJ and supraspinatous insertions”.[15] On 9 January 2015, the GPMP/TCA notes list shoulder syndrome, neck pain and chronic low back pain as chronic conditions, amongst others. Clinical notes of the same day and on 25 March 2015 state:
“worsening neck pain over few weeks, denies injury or trauma. OE: Reduced rom all directions, tender C 3-6 spinous processes and bilateral facets joints, tense paracervical muscles, Spaulding's negative, Shoulder abduction test negative, both UL exam normal.”[16]
[15] Clinical notes, ARD, p 49.
[16] Clinical notes, ARD, p 48.
Dr Stephen Quain
Dr Quain, orthopaedic surgeon, provided medical reports dated 5 April 2016, 3 May 2016 and 15 August 2017, on request by the appellant employer’s insurer. Each report indicates a date of injury of 8 September 2009. Dr Quain first examined Ms Szenczy on 7 July 2015.
In his 5 April 2016 report, Dr Quain notes that “in relation to the cervical spine and left shoulder there has been no specific injury as you are aware to either area but she believes that in her work as a beauty therapist using her arms in an elevated position she developed left shoulder and arm pain and some investigations including an MRI had shown a C4/5 disc bulge without neural compromise.”[17] He noted her symptoms of “tight pain”, “electric shocks”, pinching sensations and dizziness but does “not believe she has any evidence of a C6 radiculopathy”.[18]
[17] Report dated 5 April 2016, Reply p 2.
[18] Report dated 5 April 2016, Reply p 5.
Dr Quain accepts Ms Szenczy has some degenerative change in the C4/5 disc and a “downward sloping acromion … rendering her more likely to develop impingement symptoms and possible bursitis”, however he did not accept the allegation of “extra Body Part Cervical Spine and left shoulder.”[19] Dr Quain states:
“In my opinion I cannot see how a cervical disc protrusion could occur in her work as a beauty therapist and I believe if she did develop any symptoms of bursitis in the left arm, one would have expected resolution and it is completely inconsistent that she believes her pain is worse over the last 4 months when she has not been working at all.”[20]
[19] Report dated 5 April 2016, Reply p 3.
[20] Report dated 5 April 2016, Reply p 3.
Dr Quain concedes that work was a main contributing factor in respect of a disease injury to Ms Szenczy’s right shoulder, but opines that any symptoms referable to the cervical spine and to her left shoulder are not directly attributable to her employment. He sees no rationale for Ms Szenczy’s downgrade in work capacity. Dr Quain further opines that there is no indication for surgery to her left shoulder and he does not believe treatment to her cervical spine is justifiable or related to her work injury. He recommends physiotherapy only and considers Ms Szenczy would be fit for part time or light work, perhaps not using her arms in a prolonged elevated position.
Dr Quain did not alter his overall opinion in his second report dated 3 May 2016, following receipt of a further MRI report for Ms Szenczy’s left shoulder, but noted some partial thickness cartilage loss over the AC joint with mild thickening of the subacromial bursa and mild supraspinatus tendinosis.
Dr Quain’s report dated 15 August 2017 is based on the history provided by Ms Szenczy and documentation provided, including A/P Hope’s report and MRI of the cervical spine and left shoulder. Ms Szenczy declined further examination by Dr Quain on this day. In respect of the period 30 June 2013 to 17 November 2015, Dr Quain opined that Ms Szenczy would have had capacity to work on a part-time basis in retail or as a pharmacy assistant at least up to 20 hours per week with some physical restrictions.
Dr Quain acknowledged that some of Ms Szenczy’s symptoms suggested C6 root irritation and left carpel tunnel, however he “cannot see that without an injury to her cervical spine, that this was related to her work as a Beauty Therapist”.[21] He notes:
“There does appear to have been some advancement of the cervical disc disease at the 4/5 and 5/6 levels since an earlier MRI, but I remain of the opinion that these changes are not directly work related”.[22]
Dr Quain further states he does not believe her work “caused the cervical disc degeneration at C4/5 or C5/6, nor the mild impingement which paradoxically has worsened as noted previously since she stopped work”.[23] He further states “I therefore, differ in my opinion from that of A/Prof Hope which he states is consistent with chronic overuse, leading to cervical and bilateral shoulder pain.”[24] Dr Quain disagrees with Dr Maniam’s opinion that rotator cuff repair and subacromial decompression surgery was reasonable necessary treatment as a result of the alleged work injury.
[21] Report dated 15 August 2017, Reply p 12.
[22] Report dated 15 August 2017, Reply p 13.
[23] Report dated 15 August 2017, Reply p 13.
[24] Report dated 15 August 2017, Reply p 13.
ARBITRATOR WYNYARD’S REASONS
Arbitrator Wynyard delivered his decision in this matter extempore on 9 January 2019.[25] The decision commences at T 49 and concludes at T 61.
[25] Transcript of Proceedings (T), Szenczy v Northmead Beauty Therapy (WCC, 6046/18, Arbitrator Wynyard, 9 January 2019).
The Arbitrator identified that the application made by Ms Szenczy was for a payment, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), for surgery which had been proposed by Dr Mobbs, being a C4/5 total disc replacement and a C5/6 anterior cervical discectomy and fusion. The Arbitrator identified that this claim was resisted by the employer on two bases. They were firstly that Ms Szenczy had suffered no injury to the cervical spine that was related to her work. Secondly the employer challenged whether the proposed surgery was reasonably necessary as is the requirement under s 60 of the 1987 Act.
As injury was in contest, the Arbitrator then referred to the submissions made by counsel for the employer on the question of injury. In particular, the Arbitrator referred to counsel’s submissions about the contents of clinical notes, medical reports and the statements of Ms Szenczy. Counsel for the appellant submitted at some length about the varying histories in the medical reports.
The Arbitrator noted that there was no dispute about Ms Szenczy’s duties with Northmead Beauty Therapy, namely the performance of massages, pedicures, manicures, facials as well as waxing and other associated tasks. The Arbitrator noted that although Ms Szenczy initially had neck pain, it resolved until some time in May 2013 when she had to reduce her hours because of that pain.
The Arbitrator recounted that Dr Mobbs in his report of 24 January 2018 was not concerned with the precise history. The Arbitrator noted that Dr Mobbs was satisfied that the employment was a significant contributing factor to the neck problems suffered by Ms Szenczy and that Dr Mobbs was confident that the patient “will do very well with the proposed surgery given the severity of the condition with the discs in her neck, both at C4/5 and C5/6”.[26]
[26] T 51.28–31.
There was an issue dealt with by the Arbitrator regarding an old CT scan of Ms Szenczy’s neck which was not in evidence. Counsel for the employer suggested that this was a significant oversight. This was a proposition which did not find favour with the Arbitrator. The Arbitrator was of the opinion that Ms Szenczy did have a problem with her neck which was ongoing until May 2013, at which time she requested and was granted reduced working hours.
The Arbitrator was satisfied that Ms Szenczy suffered a pre-existing constitutional degenerative condition in her neck which was aggravated and perhaps accelerated by the nature and conditions of her work.
The Arbitrator then dealt with the medio-legal opinion obtained by the employer from Dr Stephen Quain in a report dated 15 August 2017. Dr Quain was of the opinion that whilst the worker had cervical disc disease at 4/5 and 5/6 levels, they were not directly work related.[27] The Arbitrator noted that Dr Quain had access to all the material that was then available including the worker’s statements, various medical certificates and material from Dr Tun. The Arbitrator though was not satisfied that Dr Quain had explained why he came to the conclusion that he did not consider that Ms Szenczy’s work had caused her cervical pathology. In particular, he noted that Dr Quain “did not consider the question of aggravation” which the Arbitrator noted had been accepted by Dr Quain. In the absence of that explanation as to how he formed his view, the Arbitrator accorded Dr Quain’s opinion little or no weight.
[27] T 53.15–20.
The Arbitrator then discussed counsel for the employer’s submissions regarding the medico-legal report obtained by the worker from A/P Nigel Hope and in particular how the Associate Professor’s opinions had been based upon a misapprehension of the true factual situation. Counsel for the employer submitted that as a result of these factual errors in A/P Hope’s opinions, the opinion should be given no weight and as a result Ms Szenczy would fail to prove her case. The High Court decision of Paric v John Holland (Constructions) Pty Ltd[28] was then referenced as authority for the proposition that an expert may make some errors and assumptions which may not necessarily negate the opinion depending upon the facts.
[28] [1985] HCA 58 (Paric).
The Arbitrator did not accept counsel for the employer’s submissions with respect to A/P Hope’s opinion. He said that there was no dispute that Ms Szenczy was suffering from pre-existing disc disease which was demonstrated by the radiological evidence. The Arbitrator said that the fact of the disc disease was demonstrated by Dr Quain’s comments about “deterioration (‘advancement’)” that he admitted was demonstrated in the MRI scans and it was the basis for A/P Hope’s opinion.[29]
[29] T 55.28–32.
The Arbitrator then found that the inconsistencies in the histories taken by Dr Hope were not significant enough to negate his opinion. The Arbitrator then reached his ultimate conclusion as follows:
I am satisfied that it was caused by the nature and conditions of her work. I am further satisfied on the evidence that the date of injury was 13 May 2013 and not either of the two dates that were pleaded … I say that because her evidence says that she reduced her hours as a result of the problems with her neck on that 2013 date.”[30]
[30] T 56.18–25.
The Arbitrator then dealt with the issue regarding amendment of the pleaded date of injury and ordered that the employer pay the reasonable costs of the proposed surgery recommended by Dr Mobbs.
The Arbitrator on 16 January 2019 issued a Certificate of Determination – Extempore Orders in the following terms:
“In this matter a conciliation conference was held on 9 January 2019 where I, acting as Arbitrator, used my best endeavours to assist the parties to reach an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute, the reasons for the orders set out below were given orally at the conciliation conference.
The determination of the Commission in this matter is as follows:
1. I grant leave to the applicant to amend the date of injury to a deemed date of 13 May 2013.
2. I direct the applicant to provide to the respondent an itemised account of the proposed costs of the surgery.
3. I grant leave to the parties to approach on telephone notice to each other.
4. The respondent will pay the costs of the surgery recommended by Dr Ralph Mobbs in the form of a C4/5 total disc replacement and C5/6 anterior cervical discectomy and fusion, together with costs associated with that treatment.”
PRINCIPLES ON APPEAL
Section 352(5) of the 1998 Act provides as follows:
“(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 leading decision describing the appeal process under s 352(5) of the 1998 Act is Raulston v Toll Pty Ltd,[31] a decision of Deputy President Roche. Raulston requires that the Arbitrator must be wrong, it is insufficient that a Presidential member would have drawn a different inference. It must be shown that a fact has been overlooked or given undue or too little weight as to render the Arbitrator’s view to be wrong.
[31] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
LEGISLATION
Section 4 of the 1987 Act provides:
“4 Definition of “injury” (cf former s 6 (1))
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 60 of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note. Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following:
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the Registrar for assessment by an approved medical specialist under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
Section 354 of the 1998 Act provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
…”
Rule 1.6 of the Workers Compensation Commission Rules 2011 provides:
“1.6 Adherence to and relief from rules
(1) Subject to subrule (2) and to rule 1.5, the practice in the Commission is to be the practice provided by the Workers Compensation Acts or these rules.
(2) The Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.
(3) The general practice of the Commission prescribed by these rules applies to all proceedings authorised by any existing or future Act to be commenced, taken or continued in the Commission, except in so far as that practice is inconsistent with any provision of or under any such Act.
(4) If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.
(5) If the Commission does not make a determination as referred to in subrule (4) in respect of a failure to comply with a provision of these rules, the failure is to be treated as an irregularity only.
(6) For the avoidance of doubt, it is declared that the Registrar may exercise the Commission’s functions referred to in subrule (4).
(7) The striking out of proceedings under this rule does not prevent the proceedings from being recommenced.”
Rule 4.2 of the Workers Compensation Commission Rules 2011 provides:
“4.2 Amendment of documents
(1) Subject to subrule (2), the Commission may, on the application of a party to any proceedings before the Commission, give the party leave to amend any document lodged by the party in the proceedings if the Commission considers the amendment to be necessary for the avoidance of injustice.
(2) Where a party seeks leave to amend a document, and the amendment would have the effect of substantially altering the parties to the proceedings or the nature of the proceedings, the Commission must not give the leave unless the Commission considers the amendment to be necessary in the interests of justice.
(3) An amendment referred to in subrule (1) may be made at any stage of the proceedings (including the commencement or purported commencement of the proceedings), and on such terms as the Commission thinks fit.
(4) Where the Commission gives leave to amend a document the Commission may give directions as to the conduct of the proceedings consequent on the amendment, and any such direction must be complied with as though it were a provision of these rules.
(5) Subrule (1) does not extend to allow amendment of any information or document required by rule 10.3 to be lodged.
(6) Subject to subrule (2), where the amendment for which leave is sought:
(a) is of a minor nature and will not have any substantive effect on the case to be put by any party, or
(b) is consented to by all parties to the proceedings,
the Registrar (or, if the proceedings have been referred to an Arbitrator and remain so referred, the Arbitrator) may give the party applying leave to make the amendment without complying with the provisions of subrule (7) or (8) (as the case may require).
(7) Subject to subrule (6), where a party to any proceedings applies for leave to amend as referred to in subrule (1) before the proceedings are referred to an Arbitrator, the following provisions apply:
(a) the application must be in writing and must fully set out the grounds for the application,
(b) the party seeking an amendment must serve the application on all other parties to the proceedings and must lodge the application with the registry,
(c) a party to the proceedings who wishes to object to the amendment must serve on the party seeking the amendment and all other parties, and lodge with the registry, written notice of the reasons for the objection within 2 working days of being served with the application,
(d) subject to paragraph (f) (iii), the Registrar must determine an application lodged under paragraph (b),
(e) the Registrar may determine an application lodged under paragraph (b) solely on the basis of the written application and the written notice of objection (if any),
(f) without limiting paragraph (e), when considering an application lodged under paragraph (b) the Registrar may do any of the following:
(i) seek further oral or written information from the parties, or any of them,
(ii) list the application for hearing before the Registrar,
(iii) refer the application to an Arbitrator for determination.
(8) Subject to subrule (6), where a party to any proceedings applies for leave to amend as referred to in subrule (1) after the proceedings are referred to an Arbitrator, the following provisions apply:
(a) the application must be in writing and must fully set out the grounds for the application,
(b) the party seeking the amendment must serve the application on all other parties to the proceedings and must lodge the application with the registry,
(c) a party to the proceedings who wishes to object to the amendment must serve on the party seeking the amendment and all other parties, and lodge with the registry, written notice of the reasons for the objection within 2 working days of being served with the application,
(d) the Arbitrator must determine an application lodged under paragraph (b),
(e) the Arbitrator may determine an application lodged under paragraph (b) solely on the basis of the written application and the written notice of objection (if any),
(f) without limiting paragraph (e), when considering an application lodged under paragraph (b) the Arbitrator may do any of the following:
(i) seek further oral or written information from the parties or any of them,
(ii) list the application for hearing before the Arbitrator.”
Rule 15.2 provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1) evidence should be logical and probative,
(2) evidence should be relevant to the facts in issue and the issues in dispute,
(3) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4) unqualified opinions are unacceptable.”
GROUNDS OF APPEAL
The appellant submits that Arbitrator Wynyard erred and relies upon the following five grounds:
(a) Ground One: The Arbitrator erred when rejecting the evidence of Dr Quain he failed to properly consider or misconceived the medical evidence of Dr Quain which he called “an ipse dixit” or misdirected himself as to that evidence in determining that Dr Quain’s observation of advancement of cervical disc disease when comparing two MRI scans may be equated with the contention that there had been aggravation of that condition by the worker's work and in effect requiring that the doctor opine why that would not be so.
(b) Ground Two: The Arbitrator erred when reversing the onus of proof in rejecting Dr Quain’s evidence based upon the Arbitrator's observation that advancement of cervical disc disease when comparing two MRI scans may be equated with the contention that there had been aggravation of that condition by the worker's work which was not explained by Dr Quain when such was not called for on the evidence but was called for in error by the Arbitrator based upon his own supposition and in the face of Dr Quain’s clear opinion to the contrary.
(c) Ground Three: The Arbitrator erred in finding that the worker's present neck condition requiring surgery was due to a deemed date of injury being 13 May 2013 as a result of the nature of the conditions of her work with the appellant up to that date when there was no medical evidence before him sufficient to support such a deemed date of injury and there was clear evidence that her neck condition deteriorated subsequent to that date.
(d) Ground Four: The Arbitrator erred when he misconceived the test set in Paric v John Holland and like cases when erroneously applying it to so determine that the opinion evidence of A/P N Hope was acceptable as it was so informed by a “fair climate of fact” when to the contrary the essential facts for consideration were not revealed or considered by him in coming to his opinion.
(e) Ground Five: The Arbitrator erred when he unilaterally determined a deemed date of injury (13 May 2013) which had not been relied upon by the worker and about which there had been no Notice of Claim and about which there had been no opportunity for the appellant to make submissions regarding such a proposed found date or intended amendment before the Arbitrator's determination as to that date which was a denial of natural justice and a breach of procedural requirements under the Act and a breach of the mandatory Workers Compensation Commission Rule 4.2(8).
SUBMISSIONS
Ground One
Appellant’s submissions
In respect of Ground One, the appellant claims the Arbitrator erred in his rejection of Dr Quain’s evidence as an ipse dixit to which he ascribed no evidentiary weight, or on the basis that he failed to properly consider or misconceived the medical evidence of Dr Quain on the issue of the advancement of Ms Szenczy’s disc disease. The appellant submits this error occurred by the Arbitrator “stating that he (Dr Quain) appears to have accepted that there has been a worsening of the neck due to the continued work when in fact Dr Quain has not said that at all”.[32] (emphasis in original)
[32] Amended appeal submissions, p 5.
Respondent’s submissions
Ms Szenczy notes that there was no suggestion that her cervical pathology has been caused by her work with the employer, and as such, Dr Quain’s rejection of that proposition was beside the point. Ms Szenczy submits that Dr Quain failed to address her case, being the issue of aggravation of her underlying condition, which rendered his opinion of little assistance. As such Dr Quain’s opinion was rightly given little to no weight by the Arbitrator on that basis and there was no error. Ms Szenczy further submits that therefore, even if there were an error (which is not conceded), it cannot have had any effect on the outcome of the proceedings.
Appellant’s submissions in reply
The appellant submits that the medical case presented by the worker was that the cervical spine injuries culminated in a date of injury of 8 September 2009, as determined by A/P Hope and Dr Mobbs. The appellant submits that Dr Quain did engage with both the question of aggravation (as evidenced by his consideration of A/P Hope’s report) and frank causative injury and disputes that its denial of liability was not supported by medical opinion.
The appellant further submits that Ms Szenczy failed to discharge her onus of proof in her medical case in respect of aggravation of her cervical disc disease by failing to address the MRI scan evidence and the retail work she was engaged in from August 2015 to November 2015 (during which there was apparent advancement in the deteriorated state of the cervical spine since the initial MRI dated 2 February 2015).
The appellant submits the Arbitrator was wrong to attribute little to no weight to Dr Quain’s evidence “based upon the arbitrator's observation that advancement of cervical disc disease when comparing two MRI Scans dated 2-2-2015 and 11-10-2016 may be equated with the contention that there had been aggravation of that condition by the worker's work which was not explained by Dr Quain when such was not called for on the evidence but was called for in error by the arbitrator based upon his own supposition”.[33] (emphasis in original)
[33] Appellant’s submissions in reply p 3–4.
The appellant further submits that had the Arbitrator not erred in his rejection of (or attribution of little weight to) Dr Quain’s evidence, then there would have been an award made in favour of the employer.
Ground Two
Appellant’s submissions
In Ground Two, the appellant alleges that the Arbitrator erred when reversing the onus of proof in rejecting Dr Quain’s evidence on the issue of the advancement of Ms Szenczy’s disc disease, in misconstruing the application of the High Court decision in Paric in favour of Ms Szenczy. The appellant submits that there is incontrovertible evidence that Ms Szcenzcy did not suffer “permanent aggravation” of the pre-existing cervical disc disease as opined by A/P Hope, given the absence of neck symptoms from 10 September 2010 to 23 February 2012. The appellant submits that none of Ms Szenczy’s medical evidence, aside from Dr Tun, contends with her history of cessation of neck symptoms and return to work, and that Dr Quain in contrast was appraised with and considered her whole history.
Respondent’s submissions
Ms Szenczy submits this ground is advanced on the same point as Ground One, that is, that the Arbitrator erred in not accepting Dr Quain’s evidence. Ms Szenczy accepted she bore the legal onus on the matters in dispute but notes the appellant does not identify at what point it claims the onus was reversed and rejects this ground on the same basis as Ground One.
Appellant’s submissions in reply
The appellant reiterates its previous submissions in relation to Ground Two. As to the identification of the Arbitrator’s error in effectively reversing the onus of proof, the appellant points to the Arbitrator’s reasons[34] and submits “the arbitrator appears to discount the fully informed opinion of Dr Quain that work has not caused cervical injury when neither Dr Mobbs nor AP N Hope had considered the issue of work aggravation from 2009 to November 2015”.[35]
Ground Three
[34] T 54.3–20.
[35] Appellant’s submissions in reply, p 5.
Appellant’s submissions
In Ground Three, the appellant appears to contend with the Arbitrator’s factual finding of the deemed date of injury of 13 May 2013 as a result of the nature and conditions of Ms Szenczy’s employment. This factual finding is impugned on the basis that there was no medical evidence to support such a deemed date of injury. The appellant submits the Arbitrator in effect reversed the onus of proof in rejecting Dr Quain’s evidence and deeming this date of injury, after he was not persuaded on the medical evidence that Ms Szenczy’s neck injury and surgery resulted from the two dates of injury as pleaded.
Respondent’s submissions
Ms Szcenzcy submits Ground Three is essentially an attempt to construct a technical defence, namely “we can prove we didn't injure you on 15 August 2014 because in fact we injured you on 13 (or 30) May 2013".[36] She submits that the only medical support required was to the effect that Ms Szcenzcy’s employment aggravated her disc disease and that once this was determined, it was a matter for the Arbitrator to determine the legal consequences in respect of s 16 of the 1987 Act. As such, Ms Szenczy submits there was no error.
[36] Notice of Opposition, p 4.
Appellant’s submissions in reply
The appellant submits “the defence referred to was not technical but merely pointed to the failure of the respondent worker's medical evidence to discharge the onus of proof on the issue of relevant injury and causation together with the ancillary issue of whether proposed cervical surgery is reasonably necessary as a result of a compensable injury or otherwise”.[37] (emphasis in original)
[37] Appellant’s submissions in reply, p 6.
The appellant submits there was insufficient medical evidence advanced by Ms Szenczy addressing the question of whether aggravation or deterioration of cervical spine disease was as a result of her work with the employer since September 2009, noting in particular Dr Mobbs’ and A/P Hope’s failure to consider: the work performed by Ms Szenczy between September 2009 and November 2015; the apparent deterioration of Ms Szenczy’s neck symptoms between MRIs dated 2 February 2015 and 11 October 2016 (after she ceased working for the employer and during which she worked in retail); her presentation of normal neck range movements on 10 October 2010 and her return to full time work after surgery in August 2011.
Ground Four
Appellant’s submissions
The appellant submits that the Arbitrator erred in misconceiving the test in Paric in his application of the decision to the medical opinion of A/P Hope. Namely, the Arbitrator erred in saying there was a “fair climate of facts” considered by A/P Hope to support his opinion in respect of permanent aggravation caused by the work in the 12 months leading up to 8 September 2009, and for the Arbitrator to give weight to this opinion, in circumstances where there was evidence of historical improvement in Ms Szenczy’s neck condition from 8 September 2009 to 2012. The appellant submits the Arbitrator ought to have found Ms Szenczy did not, through her medical evidence, discharge the onus of proof in respect of her neck injury and that the proposed surgery was reasonably necessary.
Respondent’s submissions
Ms Szenczy concedes that A/P Hope did not receive her complete medical history, however his essential assumption of fact was correct: that she had experienced neck symptoms associated with her work duties against a background of radiologically proven cervical disc disease. Ms Szenczy submits it was therefore a matter for the Arbitrator as to whether the proven facts formed a sufficient basis for his conclusions. He so found, and referred to the High Court’s decision in Paric. Ms Szenczy further submits the appellant failed to identify how the Arbitrator misapplied the test in Paric.
Appellant’s submissions in reply
The appellant submits that A/P Hope’s and Dr Mobbs’ failure to consider the work performed by Ms Szenczy during the period September 2009 to November 2015 and MRI evidence of further deterioration after ceasing work with the employer was significant and not “merely in a trifling respect”, with reference to the principles in Paric. The appellant submits this failure was one that justified the attribution of little to no weight to those medical opinions.
Ground Five
Appellant’s submissions
The appellant claims there was a denial of natural justice, a breach of procedural requirements under the Act and a breach of r 4.2(8) by the Arbitrator in determining a deemed date of injury previously not relied upon by Ms Szenczy, in that the appellant did not have an opportunity to make submissions regarding the proposed date of injury or intended amendment prior to the Arbitrator determining the deemed date of injury. The appellant submits that any claim relating to the deemed date of injury would be a new claim, which should be lodged with EML, due to the 1 January 2018 icare insurance scheme changes. The appellant submits EML have not been afforded an opportunity to investigate and determine the injury that they are now on risk for.
Respondent’s submissions
In respect of Ground Five, Ms Szenczy repeats her submissions in respect of Ground Three. She submits the amendment of the application to rely upon a May 2013 deemed date of injury was a pleading point and reflected the state of the available evidence, and granting leave to amend was consistent with the principles in Dare v Pulham,[38] and Leotta v Public Transport Commission (NSW).[39]
[38] [1982] HCA 70; 148 CLR 658.
[39] (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668.
Appellant’s submissions in reply
The appellant refers to its original submissions, and transcript[40] and submits that the amendment to reply upon the deemed date of injury found by the Arbitrator was never made out.
CONSIDERATION
[40] T 56–60.6.
Ground One
Dr Quain is the appellant employer’s qualified medical specialist. The appellant complains that the Arbitrator erred when he rejected the evidence of Dr Quain or that he failed to properly consider or misconceived the medical evidence of Dr Quain on the issue of the advancement of Ms Szenczy’s disc disease. Dr Quain received the following history which he recorded in his report of 5 April 2016:
“In relation to the cervical spine and left shoulder there has been no specific injury as you are aware to either area but she believes that in her work as a beauty therapist using her arms in an elevated position she developed left shoulder and arm pain and some investigations including an MRI had shown a C4/5 disc bulge without neural compromise.”[41]
[41] Reply, p 2.
In the same report, the doctor says:
“In my opinion I cannot see how a cervical disc protrusion could occur in her work as a beauty therapist and I believe if she did develop any symptoms of bursitis in the left arm, one would have expected resolution and it is completely inconsistent that she believes her pain is worse over the last 4 months when she has not been working at all.”[42]
[42] Reply, p 3, [2].
In his report of 15 August 2017, Dr Quain says as follows:
“Comment: Whilst I acknowledge some of her symptoms suggest a C6 root irritation, I still cannot see that without an injury to her cervical spine, that this was related to her work as a Beauty Therapist, even if it involved doing facials, massage, manicures and pedicures.”[43]
[43] Reply, p 12.
In summary, Dr Quain was of the view that the reported findings on the CT scans of a disc protrusion could not be explained as being work related absent a specific complaint of injury. The doctor had been given a history by Ms Szenczy that there was no specific injury but that it was her work as a beauty therapist which caused her neck pain.
A/P Nigel Hope does not take a history that Ms Szenczy suffered what could be described as a frank injury in 2009. Rather, he describes the matter as follows:
“In 2009, occupational overuse over the past 12 months (45 hours per week I 6 days per week) as a Beauty Therapist induced cervical spine and bilateral shoulder pain.”[44]
[44] Report dated 11 October 2016, ARD, p 1.
A/P Hope says that the MRI of the cervical spine shows C5/6 degenerative disc disease. He also said that the consistent diagnoses are a permanent aggravation of cervical degenerative disc disease (with C5/6 nerve root compression).[45] The Associate Professor later in this report says as follows:
“Employment is the main contributing factor to the client's condition because the cervical spondylosis was previously asymptomatic, not investigated, not diagnosed and not treated.
This pre-existing pathology was worsened permanently (aggravated) by work-related upper limb and cervical tasks required of a beauty therapist including massage and pedicures which involve forceful repetitive upper limb use and repetitive neck flexion.”[46]
[45] Report dated 23 April 2018, ARD, p 8.
[46] Report dated 23 April 2018, ARD, p 12.
Dr Tun, Ms Szenczy’s general practitioner, takes the history of the right shoulder pain arising in September 2009 but does not attribute her neck symptoms to any particular injury, rather they resulted from her work as a beauty therapist.[47]
[47] Report dated 9 August 2016, ARD, p 30.
Dr Mobbs, the surgeon who is proposing surgery to her cervical spine which is the subject of these proceedings, says as follows:
“We rely on the truthfulness and honesty of the patient in their accurate reporting of their symptoms in generating a response to this type of question. Given the truthfulness/honesty, I am of the opinion that the patient's employment with Northmead Beauty Therapy is a significant contributing factor to her neck given the type of movements, workloads involved, etc. She is of a relatively youthful age, and the issues with her neck are fairly advanced considering her age and it is likely that additional factors such as work have played a role in her current presentation.”[48]
[48] Report dated 4 September 2018, ARD, p 15.
The application brought by Ms Szenczy claimed injury to her neck (during the course of her employment) and a consequential injury to her neck as a result of overuse following injury to her right shoulder. A second allegation was made that the neck injury was caused as a result of the nature and conditions of her employment as a beauty therapist.
The question for the Arbitrator was to resolve these competing medical opinions as to the origin of Ms Szenczy’s neck symptoms. Dr Quain, having been given a history of no specific injury, was of the view that such symptoms as Ms Szenczy was suffering from were not work related. The doctor’s opinions relied upon by Ms Szenczy were of the view that it was her work, not a specific injury, which caused her symptoms, and in A/P Hope’s view the work rendered a previously asymptomatic disc disease permanently symptomatic.
The appellant in this matter is wrong to state that Dr Quain’s view was rejected. To the contrary, the Arbitrator accorded it “to be of little or no weight”.[49] Given the differences in the opinions of the medical experts, it was completely within the Arbitrator’s permit to remark upon the fact that Dr Quain did not consider the question of aggravation of the underlying disc disease, which had clearly been considered by Ms Szenczy’s medical evidence. Given the competing medical opinions, the Arbitrator was duty bound to consider these opinions and decide which he preferred. Dr Quain’s evidence was reviewed and the Arbitrator remarked, as he was entitled to do, that Dr Quain had not explained his conclusion that the disc pathology was not caused by Ms Szenczy’s work nor had he commented on the question of aggravation. The view ultimately reached by the Arbitrator was on the evidence in terms of Ground One, an available conclusion to draw and which involved no relevant error. No relevant error having been identified, Ground One is not made out.
[49] T 54.24.
Ground Two
In this ground the appellant alleges that the Arbitrator erred when reversing the onus of proof in rejecting Dr Quain’s evidence. Whilst not stated in terms, the error alleged appears to be an error of law in terms of the alleged reversal of the onus of proof.
As discussed in Ground One, Dr Quain’s evidence was not rejected, rather for the reasons described by the Arbitrator and appearing at T 54.24 his opinion was accorded little or no weight.
Ms Szenczy’s submissions in opposition to the appeal accept that she bore the legal onus of proving the matters in dispute, of which injury was one.
There is no merit in the argument that the Arbitrator reversed the onus of proof when he accorded Dr Quain’s evidence “little or no weight” (his evidence was not rejected). The Arbitrator was obliged to reconcile the conflicting medical opinions regarding the undoubted cervical pathology and whether it was work related. I do not accept that this process involved the imposition of a burden of proof on the appellant or its qualified doctor, Dr Quain. Indeed the passage which occurs at T 53–54 is in fact the Arbitrator attempting to resolve the differences in the medical opinions. The Arbitrator’s treatment of Dr Quain’s evidence, when properly reviewed, involves the Arbitrator undertaking the close consideration of the medical evidence provided by both parties when reaching an opinion as to the origin or casue of Ms Szenczy’s cervical pathology. The Arbitrator found that Ms Szenczy was suffering from pre-existing degenerative disc disease which was later aggravated by her work. In terms of the medical evidence, this was an available finding and all the Arbitrator was doing, particularly at T 54, was explaining why he preferred Ms Szenczy’s medical opinions to that of Dr Quain. This involved no identified error and this ground is rejected.
Ground Three
Ground Three, like the other grounds, fails to specify the precise nature of the error alleged. However it is apparent from a fair reading of Ground Three that the appellant is cavilling with the factual finding of the deemed date of injury of 13 May 2013 as a result of the nature and conditions of Ms Szenczy’s employment. This factual finding is impugned on the basis that there was no medical evidence to support such a deemed date of injury.
This allegation suggests that the Arbitrator could only have been satisfied of the deemed date of injury of 13 May 2013 if there was medical support for that precise finding.
Whilst not identified by the appellant, the finding is in the following terms:
“I do not regard the inconsistencies in the history taken by Dr Hope to be significant enough to negate his opinion. The basic facts upon which he based his opinion were present and proven by other means and the question is as to what has caused the applicant’s present condition. I am satisfied that it was caused by the nature and conditions of her work. I am further satisfied on the evidence that the date of injury was 13 May 2013 and not either of the two dates that were pleaded, that is to say, 8 September 2009 or 15 August 2014, the latter when she left work. I say that because her evidence says that she reduced her hours as a result of the problems with her neck on that 2013 date.”[50]
[50] T 56.13–25.
The evidence before the Arbitrator in terms of the May 2013 date came from Ms Szenczy herself. This appears in two places, in her first statement at [13] and in her fourth statement of 6 November 2017 at [17].[51]
[51] First statement ARD, pp 141–142, fourth statement ARD, p 148.
It is important to note that the history given by Ms Szenczy in those two statements was not put in issue by the appellant as a matter of fact. That is, Ms Szenczy states that in May 2013 she sought the approval of the appellant to reduce her hours due to the soreness and symptoms in both of her shoulders and in her neck.
There was thus an available and uncontested basis for this factual finding.
An Arbitrator must be satisfied that the case has been proved on the balance of probabilities. In Nguyen v Cosmopolitan Homes[52] the approach was summarised as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”[53]
[52] [2008] NSWCA 246 (Nguyen).
[53] Nguyen, [55].
Consistent with Nguyen, an Arbitrator must be satisfied on the balance of probabilities that something happened. In this case, the Arbitrator had the uncontested evidence of Ms Szenczy as to why she reduced her hours in May 2013. Counsel for Ms Szenczy, quite properly, noted some difficulties in the medical evidence with respect to alleged dates of injury but the evidence when reviewed in its entirety suggests not a frank injury being suffered by Ms Szenczy, but rather the aggravation of an underlying degenerative disc condition which came on over time. It is clear that Ms Szenczy did not realise this, hence the wording of her statement of 6 November 2017[54] where she says that it was “only through subsequent investigations have I identified the nature and extent of the problems that I have. There was no single incident at work which caused my symptoms.”
[54] ARD, p 148.
Read in this context, it is not surprising that the medical evidence in terms of the mechanism of her symptoms was not consistent. Much was made of the histories recorded by the doctors and what was found in the medical notes. The authorities tell us that inconsistent accounts given to health professionals need to be approached with caution. As was stated by Basten JA in Mason v Demasi,[55] the following are the relevant considerations in this circumstance:
[55] [2009] NSWCA 227 (Demasi), [2].
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
The histories though which have been given to the doctors are, upon close review, broadly consistent. All of the doctors have been instructed by Ms Szenczy with the details of her work. It does not appear that she herself has alleged any particular injury to the neck but it seems that her lawyer’s instructions to the doctors have suggested particular dates. In any event, it would seem that the instructions to each of the doctors from Ms Szenczy were broadly consistent, namely the gradual onset of symptoms in her neck due to the nature of her work. Where the medical opinion diverged between Ms Szenczy and that of her employer was whether or not work was the cause of her neck pain. So the cautions in terms of reading medical records as described in Demasi need to be considered, particularly in light of Ms Szenczy’s unchallenged evidence about what occurred in May 2013.
I am not satisfied, as has been stated with some force by the appellant, that this finding could only be made if supported by medical evidence. This is not a correct statement of principle. As the Court of Appeal stated in Nguyen:
“The court [or the Commission] does not abdicate its responsibility to an expert; an expert’s opinion cannot be determinative, particularly in relation to ultimate facts.”[56]
[56] Nguyen, [60] per McDougall J (McColl and Bell JJA agreeing).
In respect of the issues of the decrease in Ms Szcenczy’s hours in May 2013 and reasons for this decrease, it is a matter for the tribunal of fact to feel an actual persuasion of the existence of those facts. Ms Szenczy’s evidence on this point was not challenged and in this regard it is important to understand the three matters which are bound up in this finding. They are:
(a) Ms Szenczy experienced an increase in pain and symptoms in her neck;
(b) Ms Szenczy reported this to her employer and sought agreement to reduce her hours, and
(c) the employer agreed.
Given this was uncontested, the finding made by the Arbitrator was clearly available even though the medical evidence histories did not precisely record those facts. It could be said though, that Ms Szenczy’s medical evidence was supportive of the assertion that she suffered an aggravation of her underlying neck condition as a result of the nature and conditions of her employment. Dr Quain for the employer was of the view that her work as a beauty therapist did not cause her symptoms. On one view, Ms Szenczy’s medical evidence could be said to have provided general support for her complaints of neck pain without considering the specific events of May 2013.
These were available conclusions for the Arbitrator to draw and no error in this factual finding has been sustained.
Ground Three is therefore not made out and is therefore dismissed.
Ground Four
Ground Four in its terms alleges that the Arbitrator erred when he misconceived the test in Paric so as to determine that the opinion evidence of A/P Hope was acceptable as it was informed by a “fair climate of fact”.[57] The appellant in fact asserts that there was no such fair climate for A/P Hope’s opinion.
[57] Paric, [9].
It is necessary therefore to closely examine the evidence and what the Arbitrator said about it in order to ascertain whether or not there is substance to this argument.
The Arbitrator’s findings
Counsel for the appellant referred to these findings as appearing at p 31 of the transcript. This was a transcript prepared by the appellant. When that transcript is compared with the official Commission transcript, the relevant pages are pp 55–56 and it is from this transcript that reference will be made. The Arbitrator found as follows:
“That statement, Mr Hickey submitted, illustrated the basis upon which Associate Professor Hope came to his conclusion, and formed the basis of his opinion. The evidence demonstrated that Dr Hope’s opinion was based on a misapprehension of the true factual situation.
Mr Hickey submitted that that error vitiated Dr Hope’s opinion, and that I would give no weight to it. Accordingly I would find that the applicant failed to prove her case. Mr Hickey submitted that the factual error made by Associate Professor Hope was so egregious that it could not be said that his opinion was made in a fair climate. He helpfully referred me to the case of Paric which is authority for the proposition that an expert can make some errors in his assumptions but they would not necessarily have the effect of negating his/her opinion, depending on the facts of each case.
I, with respect, disagree with Mr Hickey. There is no dispute that Ms Szenczy was suffering from a pre-existing degenerative disc disease and this was established by the evidence of Dr Tun in his notes and prior problems as demonstrated by the radiological evidence. It was later demonstrated by Dr Quain’s comments about the deterioration (‘advancement’) that he admitted was demonstrated in the MRI scans, and it was the basis for Associate Professor Hope’s opinion.
That Ms Szenczy’s condition has deteriorated is evident from the evidence which I summarised earlier. The only difference is that there was a period following the initial aggravation where the neck pain settled down. Mr Hickey referred me to the clinical notes that showed no complaint of neck pain (after 2009) up until 2013, but that thereafter the neck became symptomatic permanently surgical treatment for which has led to the present application.
I do not regard the inconsistencies in the history taken by Dr Hope to be significant enough to negate his opinion. The basic facts upon which he based his opinion were present and proven by other means and the question is as to what has caused the applicant’s present condition. I am satisfied that it was caused by the nature and conditions of her work.”[58]
[58] T 55.5–32, 56.1–19.
A/P Hope’s opinions, which have been described earlier in this decision, recount no history of the pain settling down after 2009. Additionally, A/P Hope does not have the history of the increased neck pain in 2013 which led to the decrease in her working hours.
A/P Hope is of the view that Ms Szenczy suffers from “[c]ervical spine permanent aggravation of C5/6 degenerative disc disease (with right C5 and left C6 nerve compression)”[59] and that her neck condition “is attributable to employment as a beauty therapist”. A/P Hope said “[e]mployment with Northmead Beauty Therapy is a substantial contributing factor”[60] to her ongoing condition.
[59] ARD, p 4.
[60] ARD, p 5.
A/P Hope was however given a history of the types of duties that Ms Szenczy would perform as a beauty therapist and was of the opinion that the performance of these activities permanently aggravated Ms Szenczy’s underlying disc disease.
The medical investigations have confirmed the existence of the underlying disc disease.
Additionally, Ms Szenczy has not alleged that there was any particular incident which she links to the onset of her neck pain, rather she points to the physical tasks undertaken by her as a beauty therapist.
As stated above, this appeal ground alleges that the test set in Paric was misconceived.
Both the Court of Appeal and the High Court in Paric opined on the question as to whether factual discrepancies can undermine expert opinion.
In Paric, as in this case, there was a dispute about the factual basis of medical reports and whether the facts relied upon by the doctors in reaching their opinions were either correct or had been established by admissible evidence.
In the Court of Appeal, Samuels JA said as follows:
“I have myself looked at the evidence and looked at the hypothetical facts and while I would agree that in some respects the material put does differ in terms from what was proved, all in all I would regard it as open to the tribunal of fact to consider that it was a fair foundation and remains a reasonable support for the opinions which were sought and given.
We were referred to Wigmore on Evidence 3rd ed, vol II, s 680 and foll at 6, in which this area of the law is discussed. In a footnote which I find in the 1940 edition (at 800), there is a reference made to a decision of Boardman v Woodman (1866) 47 New Hampshire 135. I confess I have not looked at the original report, but the passage extracted by the learned author, which I would fully accept as accurate, is as follows:
‘… so proved as to resemble as near as may be the case under consideration; the jury can judge whether the case supposed is so far like the one they are considering as that the opinion of the expert on the supposed case is any guide to them.’
Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”[61]
[61] [1984] 2 NSWLR 509–510.
And in the High Court the following was said on this point:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed, vol II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
As Wigmore states (at pp.941-942, Chadbourn rev.), ‘the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect’.”[62]
[62] Paric, [9]–[10].
With the greatest of respect to the appellant, the submissions in support of this ground do not reveal a misconception in the application of Paric. The appellant has quite properly and in detail pointed to the factual discrepancies in A/P Hope’s opinions. Principally they point to two discrepancies, namely the historical improvement in her neck condition between 2009 and 2012 and the absence of any comment upon worsening neck pain up until the time Ms Szenczy left the employ of the appellant. The appellant also points to the progression in the pathology at the site of the proposed surgery which took place after she left the appellant’s employ. Ms Szenczy says that it is true A/P Hope did not receive a complete history. Ms Szenczy says that A/P Hope’s “essential assumption of fact was that the worker had experienced neck symptoms associated with her work duties against a background of radiologically proven cervical disc disease. Those assumptions were correct. It was a matter for the Arbitrator’s judgment as to whether the proven facts formed a sufficient basis for his conclusions”.[63]
[63] Notice of Opposition, p 5, [25].
As described above, the task on appeal in accordance with Raulston is to identify relevant error, of fact, law or discretion.[64]
[64] Section 352(5) of the 1998 Act.
In this case, it is apparent that the Arbitrator was well aware, as his attention was directed to it by counsel, of the deficiencies in the histories given to the doctors and in particular to A/P Hope. These discrepancies in facts before the expert, to use the terms used by Samuels JA in Paric, then need to be weighed by the decision maker as to whether or not there exists “a fair climate for the opinions they express” or, also as Samuels JA said, are the discrepancies fatal to the opinion or are they not likely to affect the force of the expert opinion? These are precisely the questions with which the Arbitrator grappled at T 55–56. The Arbitrator confronted the inconsistencies in the history taken by A/P Hope and referred to the May 2013 complaint of pain and decrease in working hours as supporting his decision to accept A/P Hope’s opinion.
In short, the Arbitrator considered the facts and what was before A/P Hope and whether there was “a fair climate in which the expert views could properly flourish”.[65] The Arbitrator was content that the discrepancies in history did not affect the force of A/P Hope’s opinion.
[65] Paric [1984] 2 NSWLR at 510.
Far from being a misconception of the test in Paric, the Arbitrator has applied it with meticulous acuity.
This ground, when properly examined, alleges a misapplication of a legal test (Paric) in order to repeat its submission made below that Ms Szenczy did not discharge her onus of proof because the medical evidence was, in their submission, not supportive. This allegation has not been made good and Ground Four must be dismissed.
Ground Five
Ground five seeks to impugn the Arbitrator’s decision to amend Ms Szenczy’s date of injury to 13 May 2013. The parties appear to have referred to two May 2013 dates, the 13th and the 30th. No frank injury is said to have occurred on either date, rather it was the culmination of her work aggravating her symptoms. No party has taken any issue on the question of whether the date is the 13th or the 30th of May 2013. The appellant alleges that this decision was “unilaterally determined”, was a denial of natural justice and a breach of procedural requirements under the Act and in particular a breach of Workers Compensation Commission Rule 4.2(8). This is a serious charge, which if made out would undermine the entirety of the Arbitrator’s decision. It is therefore necessary to closely examine not only what transpired at the hearing, but also the evidence which had been relied upon before the Arbitrator.
In Ms Szenczy’s first statement (undated), she said as follows:
“13. On 30 May 2013, I advised my boss Michelle that because of the soreness in both of my shoulders and my neck I wanted to reduce my hours to only 3 days per week. This was agreed and from July 2013 I reduced to 3 days per week. This was in line with my doctor’s advice.”[66]
[66] ARD, pp 141-142.
In Ms Szenczy’s fourth statement, which is dated 6 November 2017, she said as follows. This paragraph appears after a number of paragraphs which detailed (in Ms Szenczy’s words) the physical nature of her employment in the beauty salon. She said:
“17. These symptoms were the reason why I eventually reduced my hours in May 2013 and ultimately ceased working August 2014. Only through subsequent investigations have I identified the nature and extent of the problems that I have. There was no single incident at work which caused my symptoms.”[67]
[67] ARD, p 148.
In the ARD, two dates of injury are specified, 8 September 2009 and 15 August 2014, as the deemed date being the last date of employment. The injuries are then described thus:
“PART 4 – Injury Details
Describe how the injury happened:
1. The Applicant sustained injury to her right shoulder and neck during the course of her employment and consequential injury to her left shoulder as a result of overuse following injury to her right shoulder and neck, and subsequent surgery.
Alternatively, the Applicant sustained injury to her right shoulder during the course of her employment and consequential injury to her neck and left shoulder as a result of overuse following injury to her right shoulder and subsequent surgery.
2. The Applicant sustained injury to her neck, left shoulder and right shoulder as a result of the nature and conditions of her employment as a beauty therapist.”
The second allegation, namely an injury to the neck due to the nature and conditions of employment, is broadly consistent with the evidence of Ms Szenczy and her medical evidence. The appellant was thus at all relevant times on notice of this allegation.
At the hearing on 9 January 2019, counsel for Ms Szenczy commenced the arbitration by addressing difficulties with the dates of injuries pleaded which had been provided to the doctors who assumed that that was a relevant date.[68]
[68] T 4.23–34, 5.1–14.
Counsel for Ms Szenczy stated the case as follows:
“The complication of - I’ll try and simplify things in due course, Mr Arbitrator but before I do I’ll just complicate them but one of the medical theories is that the neck condition results from the accepted shoulder conditions. On the face of it that sounds like perhaps an unlikely proposition but there is some medical support for that hypothesis but in the alternative, the applicant’s case is it’s the work she continued to perform up until August 2014 once the relevant contributing factor to an aggravation of an underlying condition.”[69]
[69] T 6.30–34, 7.1–7.
The hearing then continued and counsel for the employer, having referred to Ms Szenczy’s evidence regarding her reduction of hours on 13 May 2013, said as follows:
“So, the worker’s own statement confirmed by Dr Tun in relation to how the neck pain came on. An available on a deemed date basis may have been the May ’13 date when she reduced her hours because at that time, in accordance with the Deeming Provisions of Section 16 of the Act where there’s no lump sum claim, incapacity in terms of financial incapacity is realised in May ’13. That date is not relied upon. Even if it were, it’s not addressed by the medical evidence in the worker’s case. The worker relies upon a deemed date being the second date relied upon on page, in part 4 which is the 15th of August ’14 being the last date of employment with the respondent.[70]
[70] T 25.9–21.
The Arbitrator then questioned counsel for the employer in the following way.
“ARBITRATOR: What if Mr Stockley says all the evidence demonstrates that the incapacity first arose on the 13th of May ’13 and I wish to amend?”
Counsel for the employer then responded in the following way:
“MR HICKEY: This medical evidence doesn’t address that as a date of injury. It addresses the 8th of September 2009 when a permanent aggravation took place. The difficulty with that is that the worker’s own evidence and the evidence contained in the report of her treating general practitioner sets forth that there was aggravation, being to her neck, after that date. Not before it.”[71]
[71] T 25.31–34, 26.1–3.
Counsel for the employer then continued and submitted as follows:
“He doesn’t have that history. He doesn’t have the history of the aggravation and is attributing her cervical injury to the work-related injury in 2009 just like Associate Professor Nigel Hope. What does that achieve for the worker’s case in relation to the need for the proposed neck surgery on a reasonably necessary basis as a result of a work injury to the neck? It leaves out the essential consideration. Is the neck surgery reasonably necessary because of an injury that the worker’s medical case relies upon, namely 2009 event? The answer must be in the negative because it’s obvious on the facts in this case that the real need for the surgery is due to an onset of aggravation or exacerbation since 2009 and namely leading up to May ’13 when the worker reduced her hours. The worker’s relying upon a 2009 date. It’s relied upon as a discrete event date. It’s not. The deemed date relied upon is the second date.”[72]
[72] T 32.33, 33.1–16.
Counsel for the employer continued as follows:
“ARBITRATOR: This is after Associate Professor Hope’s report?
MR HICKEY: Yes, it’s after the MRI scans of the neck. That’s the worker’s evidence and that’s the worker’s statement but where’s the medical evidence that supports what the worker wants to rely upon as the deemed date of injury, 15 August ’14? ‘Cause the medical opinion attributes the neck injury, the neck pathology and the need for the surgery to an event of 2009. And misses, in Dr Mobbs’ report, the treating surgeon, the aggravation that clearly has occurred between return to work after the first right shoulder arthroscopy in 2011 and May 2013 and ultimately August ’14. It just hasn’t been addressed.”[73]
[73] T 37.16–30.
And finally, counsel for the employer stated as follows:
So, my submission is that you wouldn’t have a sense of persuasion to the extent that you can find that there’s been an injury to the cervical spine in 2009, that promotes the, or, yes, promotes the proposed surgery as reasonably necessary as a result of a work injury. There’s clearly an aggravation from that date or a progression after that date principally from 2011 through to 2013 and then ongoing through the cessation of work with the respondent in August ’15 but the worker’s medical case doesn’t support that. The medical opinion doesn’t support that. The worker states that. But that’s lay opinion.”[74]
[74] T 43.18–31.
The Arbitrator then addressed these issues with counsel for Ms Szenczy:
“ARBITRATOR: Mr Stockley, an essential, or the issue I think that the respondent has raised is not that there hasn’t been an aggravation to the applicant’s neck and not that there hasn’t been aggravation to the applicant’s as a result of the work she was doing but that the aggravation occurred in 2013, that there was an initial one in 2009 which, on the applicant’s evidence, appeared to resolve and then it happened again. Is that, is that the factual basis upon which you would approach your submissions?
MR STOCKLEY: It would but given the dialogue between you and Mr Hickey earlier in his submissions, I’d embrace the proposition of amendment to plead an additional date of injury so the respondent ..(not transcribable 01:27:27).. to the 13th of May 2013 as being the relevant date.”[75]
[75] T. 46.29–35, 47.1–11.
The Arbitrator then addressed the question of amendment of the pleadings:
ARBITRATOR: … Mr Stockley, in the brief exchange we had, indicated that he would wish to amend his pleadings. I have not given you an opportunity to be heard on that, Mr Hickey.
MR HICKEY: No.
ARBITRATOR: Do you wish to be heard?
MR HICKEY: He hasn’t amended his pleadings. He can’t because it’s a new date of injury.
ARBITRATOR: Mr Stockley?
MR STOCKLEY: I made the application.
ARBITRATOR: Yes, still made the application.
MR STOCKLEY: ..(not transcribable 02:00:00)..
ARBITRATOR: Well, I didn’t ask you what you, for your response.
MR HICKEY: Well, I object.
ARBITRATOR: Right and based - - -
MR HICKEY: I will object and I just asked my friend whether he had made the application and amended it and it hasn’t been done. I just don’t follow.
ARBITRATOR: Well, I’m about to do it.
MR HICKEY: Well, I object and I’ll need to seek some instructions because the respondent, as I understand it, if there’s a date of injury to be relied upon it must determine the claim based on a new date of injury. There’s only two dates of injury discretely relied upon for the respondent to, through the Commission, amend the ARD in the way that appears to be transpiring, is a bit akin to accepting an advice on evidence through the respondent’s submissions and putting the cart before the horse in terms of the requirement for an insurer to determine a claim in respect of a date of injury relied upon.
ARBITRATOR: Well, the insurer has determined the claim not only on the dates of injury pleaded, but also on the evidence that is before us.
MR HICKEY: But there’s got to be a date of injury pleaded. You can’t just say here’s a whole body of evidence and during an arbitration or a conciliation where there’s objection, an applicant or the Commission can take its pick.
ARBITRATOR: Well, in the superior courts you’re absolutely right, but in this jurisdiction we are not bound by technicalities and I regard the basis of your defence as being, as you heard, a technicality.
MR HICKEY: But you are bound by this, Mr Arbitrator. You are bound to act fairly and for the Commission to suggest that a date of injury be relied upon, which the respondent and its insurer has not had an opportunity to consider or address - - -
ARBITRATOR: You have had an opportunity - - -
MR HICKEY: - - - is unfair.
ARBITRATOR: - - - you have come here and said “here is the reason why this case must lose and Ms Szenczy must be denied her application. That is because the evidence shows that the aggravation, the permanent aggravation did not occur in 2009, it occurred in 2013.”
MR HICKEY: How has this deemed date been deemed? Is it pursuant to a Section 15 or a Section 16 deemed date? You don’t know?
ARBITRATOR: I just said, the applicant’s evidence is that she had to reduce her hours as a result of the neck pain.
MR HICKEY: Well, I said what I’ve said. I consider it a denial of natural justice and against the provisions for an, which enable an insurer to determine a claim made in order to quickly and efficiently determine matters. If this date of injury had been relied upon from the outset or the medical evidence had been marshalled in such a way as to consider nature and conditions up to August 2014, the matter may not have come this way to this Commission. It may have been resolved but it hadn’t and I object. That’s all I can do.
ARBITRATOR: Your objections and submissions are on the record. As I have said, with all the evidence before you, it is no surprise that, indeed it is now the basis of your defence, after the no injury point, not that the applicant did not have a degenerative disc disease, and not that it was not aggravated by the nature and conditions of the work she was doing. All those things, the evidence in your defence has admitted. All you have said is that it was not permanent in 2009, and did not become permanent until 2013. I regard that as an extremely technical defence.
MR HICKEY: It’s not at all. It’s just, it just hasn’t been pleaded properly. The medical evidence has not addressed the date of injury relied upon.[76]
[76] T 56–59.
Proceedings in the Commission are governed by s 354 of the 1998 Act and r 15.2 of the Commission Rules. These provisions have been set out earlier in this decision.
How these provisions operate in the context of a tribunal such as the Commission has been discussed in a number of cases. In New South Wales Police Force v Winter,[77] the Court of Appeal was asked to examine an allegation regarding a denial of procedural fairness in the context of Commission proceedings. In that case, Mr Winter had the opportunity to give his account concerning various matters upon which his employer’s submissions ultimately succeeded. However Mr Winter did not take that opportunity due to an objection taken by his counsel. The Court of Appeal was satisfied that notice of the case that was put against Mr Winter had been given and that he had a reasonable opportunity to put evidence and submissions before the Commission concerning his case.
[77] [2011] NSWCA 330; 10 DDCR 69.
In Inghams Enterprises Pty Ltd v Thoroughgood[78] Deputy President Roche, in another case involving allegations of procedural unfairness and/or a denial of natural justice, outlined the basic principles associated with proceedings in the Commission.
“Dealing with the rejection of the three articles referred to in Dr Potter’s reports, I do not accept that the rejection involved any procedural unfairness or denial of natural justice to Inghams.
The basic principles are not in doubt:
(a) natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power (McHugh J in Muin v Refugee Tribunal [2002] HCA 30; 190 ALR 601 at [123];
(b) the concern of the law is to avoid practical injustice (Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]);
(c) when a claim is made that natural justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and the law regulating the conduct of the proceedings (Bryson JA (Handley JA and Bell J agreeing) in Zheng at [20]), and
(d) the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth (Tucker LJ in Russell v The Duke of Norfolk (1949) 1 All ER 109 at 118; cited with approval by Gibbs CJ in National Companies and Securities Commission vNews Corporation Ltd [1984] HCA 29; 156 CLR 296 (National Companies) at 312, and in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546, at 552.”[79]
[78] [2013] NSWWCCPD 29 (Thoroughgood).
[79] Thoroughgood, [159]–[160].
Having regard to these authorities, it is necessary to examine what had transpired in this case.
With regards to the appellant employer, the following propositions are evident:
(a) The appellant had been served with the ARD which included Ms Szenczy’s statements, which in the first and fourth statements both provided the relevant history of an increase in symptoms and consequent agreement with her employer to reduce her hours in May 2013. The appellant does not complain that this set of facts took them by surprise nor that they were unable to meet this allegation factually. The Application in PART 4 pleaded an allegation of neck injury due to the nature and conditions of the work with the appellant.
(b) It is true that the May 2013 date was not specifically pleaded but this history of an increase in symptoms and an agreement to decrease her working hours was part of the factual matrix about which the employer was aware prior to the hearing. These factual assertions were not put in issue.
(c) The appellant employer had a reasonable opportunity to put evidence on and make submissions to the Commission on the factual issue pertaining to the May 2013 exchange between Ms Szenczy and her employer. Whilst no issue was taken with these facts, the employer advanced significant submissions about what they saw as the differences between the May 2013 date when compared with the dates pleaded in the ARD.
(d) The appellant was represented by counsel at the hearing and had been invited specifically to address upon this issue. Counsel for the appellant accepted this invitation and opposed the amendment of the injury date.
Whilst the appellant was on notice of the facts surrounding the May 2013 decrease in Ms Szenczy’s working hours, it is true that it was not until the hearing that they were put on notice of the possibility that they would have to contend with the May 2013 date as being a relevant date and that the pleadings would be amended accordingly. It is clear that the appellant had constructed its defence to the claim inter alia around the absence of the May 2013 date as being pleaded or otherwise relied upon by Ms Szenczy. Indeed counsel for the employer stated as follows:
“It’s just, it just hasn’t been pleaded properly.”[80]
[80] T 59.32–34.
It is apparent that there was an evidentiary divergence between what appeared in Ms Szenczy’s statements about what transpired in May 2013 and the histories contained in various medical records and reports. It is also apparent that the appellant was, as it was entitled to do, attempting to highlight those discrepancies in order to advance its defence of the claim.
However, it is simply not correct to assert that the appellant was denied the opportunity to put submissions regarding the proposed found date or intended amendment. There was an extensive exchange between the Arbitrator and counsel for the appellant on that very issue (set out above).
Additionally, the appellant complains about there being an absence of a notice of claim with respect to any injury in May 2013. This is a reference to the requirement set out in Ch 7, Pt 2 of the 1998 Act which specifies how notice of injury and the making of a claim are made to an employer. Counsel for the appellant addressed on this issue when resisting the application to amend by stating as follows:
“If this date of injury had been relied upon from the outset or the medical evidence had been marshalled in such a way as to consider nature and conditions up to August 2014, the matter may not have come this way to this Commission. It may have been resolved but it hadn’t and I object.”[81]
[81] T 59.13–17.
Section 255 of the 1998 Act specifies how notice of injury is to be given. In particular, s 255(2) of the 1998 Act provides that it may be given orally or in writing. The history recounted by Ms Szenczy in her statement was that she told her employer in May 2013 of her increasing symptoms and that as a result she needed to reduce her working hours. No issue has been taken with this evidence as being anything other than truthful. The requirement to give notice was therefore met in May 2013. The fact that the insurer apparently did not take any steps to consider this history when considering Ms Szenczy’s claim generally is a matter for itself. However it is clear that in May 2013 the employer was given oral notice as contemplated by s 255(2) and the argument advanced by the appellant that in the absence of requisite notice that the amendment of the date of injury should be denied is without merit.
While the amendment was made on the day the matter was heard, 9 January 2019, and given that this history had been long known to Ms Szenczy and her advisers, it is entirely regrettable that the May 2013 date was not relied upon earlier by Ms Szenczy.
Practice and procedure in the Commission is governed by s 354 of the 1998 Act. The High Court when considering s 420 of the Migration Act 1958 (Cth), a similar provision to s 354 of the 1998 Act, said these types of provisions are:
“intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”[82]
[82] Minister for Immigration v Eshetu [1999] HCA 21 (Eshetu), [49].
This is a case where a dispute as foreshadowed by the High Court in Eshetu has arisen. Namely the tension between the rules applying to tribunals and those obligations applicable to courts of law. The appellant in terms of both its oral submissions at the hearing and in written submission on appeal is most aggrieved about this issue. However it is clear that the May 2013 date and what is said to have transpired at that time is not in dispute. Whilst it is certainly inconvenient to the case that the appellant had intended conducting below, not making the amendment could give rise to a significant injustice to Ms Szenczy. The appellant’s complaint in this respect seeks to elevate the dates pleaded in the ARD to be equivalent to the strict pleading rules one finds in courts of law. This complaint does not engage either with the facts or the practice and procedure of the Commission.
The May 2013 date is an important date and it figured heavily in the Arbitrator’s weighing of the evidence. In short, the appellant is asking for this date to not be considered as a possible injury date, rather it is a date which is sought to be used by the appellant to impugn various aspects of Ms Szenczy’s claim while not taking issue with the actualité of this event. Given that this factual finding was made by the Arbitrator in his oral decision,[83] which is not under challenge in these proceedings, the amendment made by the Arbitrator is consistent with the practice and procedure before the Commission and avoids the practical injustice of which Gleeson CJ spoke about in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam.[84]
[83] T 56.20–21.
[84] [2003] HCA 6; 214 CLR 1 (Ex parte Lam).
I also deal with the appellant’s reference to r 4.2(8) of the Workers Compensation Commission Rules 2011.
I should note that no application was made before the Arbitrator that the proposed amendment breached r 4.2(8). Had such a submission been made, arguments about whether or not the rule could be dispensed with may have then been undertaken (see below).
However no such application was made and consequently the Arbitrator was not asked to consider that provision of the rules when deciding the application to amend. The Arbitrator’s decision therefore cannot be criticised for not engaging with an argument that was not advanced.
I would note that under r 1.6(2) the Commission may if it thinks fit on terms dispense with compliance with any of the requirements of the rules, either before or after the occasion for the compliance arises. Given the matters that I have discussed under the consideration of Ground Five, had reference to this rule, 4.2(8), been made, an order dispensing with compliance was clearly available under r 1.6(2) had this argument been pursued.
Finally, I would note that one of the complaints under Ground Five is that “the Arbitrator erred when he unilaterally determined a deemed date of injury”. This allegation suggests that the Arbitrator made this determination without prior notice to the parties, hence the deployment of the word “unilaterally”. The ground further alleges that there had been “no opportunity for the appellant to make submissions” regarding the proposed found date. These statements are for the reasons outlined above factually incorrect. The whole issue of the May 2013 event and the amendment of the date of injury in the ARD was the subject of submissions before the Arbitrator (which were set out above).
With regards to the proposed amendment to the injury date, the appellant employer was given, and indeed took up, the opportunity to put submissions in opposition to that application. Indeed this question was raised by the Arbitrator early in the hearing[85] and counsel for the appellant then submitted at length as to why the evidence did not support a May 2013 injury. At the end of counsel for the employer’s submissions, counsel for Ms Szenczy said that he would “embrace the proposition of amendment to plead an additional date of injury so the respondent ..(not transcribable 01:27:27).. to the 13th of May 2013 as being the relevant date.”[86] The Arbitrator then subsequently invited counsel for the employer to be heard on that matter and objection was taken. The process undertaken was certainly not the usual process of amendment of pleadings that would take place in a court of law. It was a process consistent with s 354 of the 1998 Act and in particular subsections (2) and (3). The appellant complains that what transpired denied it natural justice. This is a submission without merit. Firstly, the factual circumstances surrounding the May 2013 date were well known to the appellant employer. These facts were not put in issue. Indeed the factual finding made by the Arbitrator[87] is not challenged. The appellant had the opportunity and indeed availed itself of that opportunity to submit at length on the May 2013 date of injury and how there was no support in the medical evidence with respect to that date. Further, I am satisfied when one considers the appellant’s submissions before the Arbitrator that it was well aware of Ms Szenczy’s assertions regarding her increase in symptoms in May 2013 such that it was able to prepare and present its case in light of those facts, of which it was patently aware.
[85] T 25.26.
[86] T 47.7–11.
[87] T 56.19–21.
It is clear that the Arbitrator first made a factual finding regarding the May 2013 date. After the factual finding was made, the proposed amendment of the date of injury was the subject of discussion and opposition by counsel for the appellant. The amendment was subsequently made when the Certificate of Determination was issued on 16 January 2019 (Order no 1). It can be seen that the amendment itself, not the factual finding, was not made until after counsel for the appellant was heard in opposition to the proposed amendment.
There is no merit in the argument that the appellant was not afforded natural justice. Given that the Commission is not a tribunal of strict pleading and legal forms, I am satisfied that the appellant was acquainted with the case that it had to meet, including the facts. The fact that an amendment to the pleadings might take place during the hearing may in some circumstances give rise to unfairness to a party, but I am satisfied that such was not the case in this matter. The appellant was not caught by surprise in terms of the factual situation around the May 2013 date and the appellant had a reasonable opportunity to make submissions and indeed availed itself of that opportunity.
Ground Five is not made out and is thus dismissed.
DECISION
That Michelle Gai Weston t/as Northmead Beauty Therapy be substituted as appellant in this matter and as the respondent in proceedings (below) in matter number 6046/18.
The Certificate of Determination dated 16 January 2019 is confirmed.
Judge Phillips
PRESIDENT
22 July 2019
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Res Judicata
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