Moriarty-Baes v Office Works Superstores Pty Ltd - [2015] NSWWCCPD 28

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28
APPELLANT:	Kim Moriarty-Baes
RESPONDENT:	Office Works Superstores Pty Ltd
INSURER:	Wesfarmers Group Team Cover
FILE NUMBER:	A1-2916/14
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	19 December 2014
DATE OF APPEAL DECISION:	4 May 2015
SUBJECT MATTER OF DECISION:	Claim for cost of hospital and medical expenses for consequential right shoulder condition alleged to have resulted from accepted injury to the left wrist; assessment of lay and expert evidence; alleged finding against the weight of evidence; alleged failure to conduct proceedings “in equity, good conscience and on the substantial merits of the case”; consequence of respondent’s failure to comply with cl 46 of the Workers Compensation Regulation 2010; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; alleged error in applying the “best evidence rule” when the Commission is not bound by the rules of evidence; s 354(2) and (3) of the Workplace Injury Management and Workers Compensation Act 1998; conduct of proceedings in the Commission generally
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Nikolovski Lawyers
Respondent:	Kaden Boriss
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 19 December 2014 is confirmed.

INTRODUCTION

This appeal involves a challenge to the Arbitrator’s finding that he was not persuaded that the worker’s right shoulder condition was caused by her employment or resulted from favouring her left arm after suffering an accepted work injury to her left wrist. For the reasons explained below, the challenge is unsuccessful and the Arbitrator’s determination is confirmed. To fully understand the Arbitrator’s decision, and the nature of the challenges to it, it is necessary to set out the background in some detail.

BACKGROUND

The appellant worker, Kim Moriarty-Baes, worked part time for the respondent employer, Office Works Superstores Pty Ltd, as a customer service assistant, starting there in about 2007. On 11 April 2009, she injured her left wrist when she attempted to stop a box from falling. After a period away from work, she returned on 13 May 2009 with a certificate from her general practitioner, Dr Gordon Mill, in which she was certified fit for suitable duties, but avoiding heavy lifting and pushing loads.
Investigations revealed a triangular fibro-cartilage tear in Ms Moriarty-Baes’ left wrist. Dr Mill referred Ms Moriarty-Baes to Dr Stuart Jansen, orthopaedic surgeon, and she had a left wrist cortisone injection on 28 July 2009. On 7 September 2009, Dr Jansen recorded that, because of her symptoms in her left wrist, Ms Moriarty-Baes had trouble “lifting up coffee cups”. Dr Jansen referred her to Dr Scougall, a hand and wrist surgeon, for an opinion on surgery to her wrist.
On 19 October 2009, Dr Mill recorded, among other things, that Ms Moriarty-Baes had a “sore (R) shoulder [indecipherable] → shifting load to other side; not well tolerated”. On 9 November 2009, Dr Mill recorded, among other things, that Ms Moriarty-Baes had a “problem with non-stop register based duties” and “no previous (R) shoulder problems”.
On 23 November 2009, Ms Moriarty-Baes underwent left wrist surgery at the hands of Dr Scougall for the repair of her triangular fibro-cartilage tear. The surgery did not give any great improvement in her left wrist symptoms.
On 30 November 2009, Dr John Hogg, a general practitioner in Dr Mill’s practice, certified Ms Moriarty-Baes fit for suitable duties but with “no left hand work”, lifting up to one/two kilograms and a maximum of one hour continuous keying. On the same day, Dr Hogg recorded “(R) shoulder aching. No obvious precipitant. Very difficult to do domestic chores”.
On 6 January 2010, Dr Mill recorded “wrist improved →lighter loads recently (less [indecipherable])” (counsel for Ms Moriarty-Baes, Mr Moffet, has submitted that the indecipherable word is “shoulder” but the entry appears to be “stiff”). On 25 January 2010, Dr Mill noted increasing work requirements as a result of the “return to school effect”.
On 24 March 2010, Dr Mill recorded “last week 4 days straight → increased shoulder/wrist symptoms” and “shoulder seized up in morning” and that Ms Moriarty-Baes “thinks has got worse”.
On 30 March 2010, Dr Mill recorded that Ms Moriarty-Baes presented with “persisting shoulder … initially thought [due] to altered load in response to wrist injury”.
On 29 April 2010, Dr Scougall reported to Dr Jansen that Ms Moriarty-Baes had intermittent discomfort on the ulnar aspect of the wrist, improved compared with pre-operatively, though it was still troublesome sometimes. He added that “the priority for now, however, is right shoulder pain”.
On 13 April 2010, Dr Mill recorded that Ms Moriarty-Baes was “overall unchanged/slightly better only → poor tolerance of register work”.
On 20 August 2010, Dr Scougall recorded that Ms Moriarty-Baes was “unable to do anything” due to her left wrist symptoms, noting that she was to see Dr Jansen regarding her right shoulder pain.
On 7 September 2010, Ms Moriarty-Baes saw Dr Jansen. He took a history that, at the end of 2009, Ms Moriarty-Baes was very busy at work. Her employer had installed touch screen monitors at eye level and her job involved a lot of touching of the screen, which involved “a lot of work at shoulder level”. Ms Moriarty-Baes was in a very busy period, doing four shifts in a row, and she developed significant anterior shoulder pain. Dr Jansen believed that this occurred on approximately 1 January 2010.
At the time of Dr Jansen’s examination on 7 September 2010, Ms Moriarty-Baes was working on restricted duties. Dr Jansen recorded that her shoulder pain was “made worse with any activities overhead”. She had minimal night pain. She was taking Mobic, Nurofen and Panadol for her pain. Dr Jansen felt that Ms Moriarty-Baes had a functional impairment with activities which required overhead use, like hanging out the washing. She also found it difficult to do activities like mopping. X-rays showed AC joint arthritis. An ultrasound was normal.
An MRI of the right shoulder on 24 September 2010 revealed mild tendonitis in the supraspinatus with a “tiny focal partial thickness undersurface tear”. It also showed mild tendonitis of the infraspinatus tendon.
In a s 74 notice dated 8 December 2010, the insurer denied liability in respect of the alleged right shoulder injury. It relied on evidence from Dr Gray, orthopaedic surgeon, dated 13 September 2010 in which he allegedly recorded that Ms Moriarty-Baes experienced the onset of discomfort in her right shoulder, with no obvious precipitating factor, in January 2010.
Dr Gray added that Ms Moriarty-Baes continued to experience pain in her right shoulder, exacerbated with use, in particular, with work above shoulder level when hanging washing on the line or cleaning the shower recess at home. Dr Gray felt that the problem with the right shoulder was probably constitutional in origin, exacerbated by day-to-day and work activity. (It should be noted that, in breach of the Workers Compensation Regulation 2010 (the 2010 Regulation), neither this report from Dr Gray, nor his supplementary report, was attached to any of the s 74 notices relied on by the respondent. Any references to Dr Gray’s evidence have been taken from other documents that have referred to his reports.)
In response to an application that the insurer review its decision to dispute liability, the respondent wrote to Ms Moriarty-Baes’ former solicitors on 18 October 2011. Relying on a supplementary report from Dr Gray dated 28 September 2011, the insurer stated that it rescinded its “declinature” and that it would meet the cost of proposed treatment for Ms Moriarty-Baes’ right shoulder.
On 6 February 2012, Ms Moriarty-Baes underwent a CT guided right shoulder joint injection.
On 23 July 2012, Ms Moriarty-Baes had further surgery to her left wrist, a left ulna shortening osteotomy, at the hands of Dr Scougall.
On 9 October 2012, Ms Ekman, physiotherapist/hand therapist, reported to Dr Mill that Ms Moriarty-Baes had continuing right shoulder pain from overuse of her right arm while her left arm was recovering from surgery.
On 29 November 2012, the respondent terminated Ms Moriarty-Baes’ employment.
On 3 December 2012, the respondent issued a s 54 notice in which it declined liability for any weekly compensation.
On 5 December 2012, Ms Moriarty-Baes saw Dr Jansen, complaining of increasing pain in her right shoulder, which she “had to use more since her left wrist surgery and this has been a significant problem”. The shoulder pain, for which Ms Moriarty-Baes took Panadeine Extra, was worse with activities. Extensive physiotherapy had not given any long term benefit, though Ms Moriarty-Baes had partial relief with cortisone injections in the glenohumeral joint. Dr Jansen felt that Ms Moriarty-Baes was “heading towards surgery”, the results of which were difficult to predict.
On 25 February 2013, Dr Jansen noted that Ms Moriarty-Baes had had six guided injections (in her right shoulder) over the previous three years without any long-term benefit. Ms Moriarty-Baes was complaining of superior shoulder pain around the AC (acromioclavicular) joint and of a less typical posterior inferior scapular type pain. She felt that this had been getting worse since her left wrist injury and with therapy, but did not know of any specific causes. Dr Jansen discussed with Ms Moriarty-Baes the treatment options, including surgery. In view of the failed non-operative treatment over the previous three years, Ms Moriarty-Baes was keen to proceed with surgery.
On 9 May 2013, Ms Moriarty-Baes saw Dr Wallace, orthopaedic surgeon qualified by the respondent. Dr Wallace stated, in a report dated 17 May 2013, that the condition of Ms Moriarty-Baes’ right shoulder was not work related. He expressed the same view in several subsequent reports.
On 27 March 2014, Dr Khor, pain management specialist to whom Ms Moriarty-Baes had been referred by Dr Scougall in 2011 and 2014, reported that her shoulder pain flared up in conjunction with her left wrist pain, which was a point of contention and stress, because it was not covered by the insurer “even though it probably arose from increased use of the right upper limb from impairment over the left wrist”. Ms Moriarty-Baes continued to report difficulties with lifting, holding a phone, driving and any activities involving the use of her hands with increased sensitivity.
On 1 May 2014, Ms Moriarty-Baes saw Dr Mastroianni, consultant occupational physician, who took a history of right arm overuse at work following the left wrist injury. Dr Mastroianni stated that as a result of favouring her left arm and returning to normal duties doing predominantly right handed work, Ms Moriarty-Baes developed tendonitis in her right shoulder.
In an Application to Resolve a Dispute (the Application) filed with the Commission on 11 June 2014, Ms Moriarty-Baes claimed compensation for the cost of the surgery proposed by Dr Jansen. The respondent denied liability on the grounds outlined in the reports from Dr Wallace.
On 29 September 2014, Dr Ho, Approved Medical Specialist (AMS) and orthopaedic surgeon, assessed Ms Moriarty-Baes on referral from the Registrar. He prepared a non-binding Medical Assessment Certificate on 1 October 2014 in which he agreed that Ms Moriarty-Baes had features suggestive of AC joint impingement. However, he did not think this was related to “the work injury which is causing the problem in the left wrist”. He felt it would happen whether she was favouring the use of her left hand or not. He therefore concluded that the surgery proposed by Dr Jansen was not reasonably necessary as a result of the left wrist injury.
At the arbitration on 11 December 2014, the issues were identified as:
(a)     whether, as a result of her accepted injury to her left wrist, Ms Moriarty-Baes sustained a right shoulder consequential condition; and/or
(b)     whether, as a result of the nature and conditions of her employment up to 29 November 2012, Ms Moriarty-Baes sustained a right shoulder injury, and
(c)     whether the proposed surgery to Ms Moriarty-Baes’ right shoulder was reasonably necessary as a result of (a) or (b) (or both).
After hearing submissions from both sides on 11 December 2014, but no oral evidence, the Arbitrator delivered an oral decision on 15 December 2014, in which he preferred the evidence of Dr Ho and concluded that he was not persuaded that Ms Moriarty-Baes’ right shoulder problem was caused by her employment, or that it resulted from favouring her left arm.
The Commission issued a Certificate of Determination on 19 December 2014 in the following terms:
“1.The applicant suffered injury to her left wrist arising out of and in the course of employment on 11 April 2009.
2.The applicant has failed to establish on the balance of probabilities that the need for surgery to her right shoulder proposed by Dr Janssen [sic] results from that injury or that she suffered injury to her right shoulder arising out of or in the course of her employment with the respondent.
3. Award for the respondent.”
Ms Moriarty-Baes has appealed.

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.

ISSUES IN DISPUTE

The issues in dispute in the appeal may be summarised as whether the Arbitrator erred in:
(a)     his interpretation of Dr Mill’s notes of 19 October 2009 (Dr Mill’s notes);
(b)     finding that, after her left wrist injury, Ms Moriarty-Baes returned to normal duties (Ms Moriarty-Baes’ post injury duties);
(c)     failing to conduct the proceedings in “equity, good conscience and on the substantial merits of the case” in not taking account of the respondent’s failure to produce the report of Dr Gray when issuing the s 74 notice (failure to produce Dr Gray’s report);
(d)     failing to adequately consider the evidence of Dr Mill (Dr Mill’s evidence);
(e)     finding that Dr Jansen was “sitting on the fence” (Dr Jansen’s evidence);
(f)      finding that there was no rotator cuff pathology (the pathology/Dr Khor’s evidence);
(g)     rejecting the evidence of Dr Khor on the ground that Dr Khor found that there was rotator cuff pathology (the pathology/Dr Khor’s evidence);
(h)     refusing to find that Ms Moriarty-Baes overused her right arm (overuse of the right arm);
(i)      requiring “clear evidence from [Ms Moriarty-Baes] as to precisely how she overused her right arm” (clear evidence);
(j)      accepting Dr Ho’s opinion (Dr Ho’s evidence);
(k)     reaching a conclusion that was against the weight of the evidence (finding against the weight of evidence), and
(l)      applying the “best evidence rule” (the best evidence rule).

DR MILL’S NOTES

Submissions

Mr Moffet submitted that the Arbitrator erred in interpreting Dr Mill’s notes of 19 October 2009 as referring to a single lifting episode involving the right shoulder rather than “overuse of the right upper limb and shoulder in response to the left wrist injury”. Mr Moffet contended that his decision was “contaminated” by this error. Mr Moffet added that the entry on 30 March 2010, which referred to shoulder pain “persisting” and “initially thought [due] to altered load in response to wrist injury”, also demonstrated that the Arbitrator erred in finding that the right shoulder symptoms commenced with a simple unexplained shifting of a load when it was referring to overuse.

Discussion and findings

It will be recalled that, on 19 October 2009, Dr Mill recorded, among other things, that Ms Moriarty-Baes had a “sore (R) shoulder [indecipherable] → shifting load to other side; not well tolerated”. The Arbitrator referred to this evidence at T5.24, where he said:
“In 2009 [Ms Moriarty-Baes] saw Dr Mills [sic] complaining of right shoulder soreness. The medical records of Dr Mills [sic] are in evidence and they confirm that on 19 October [2009] [Ms Moriarty-Baes] complained of shoulder soreness from shifting a load.
There were thereafter a number of consultations with Dr Mills [sic] or other medical practitioners in that practice at which [Ms Moriarty-Baes] complained of pain in her right shoulder.” (emphasis added)
Assuming, as Mr Moffet has submitted, that the entry on 19 October 2009 was referring to general overuse of the right arm/shoulder and not to the shifting of a single load, which is far from clear, the Arbitrator’s misinterpretation of the notes makes no difference to the result. The same observation applies to the entry on 30 March 2010, to which the Arbitrator made no specific reference. The submission that this error has “contaminated” the decision is not supported with any reasoned argument and is unsustainable.
As counsel for the respondent, Mr Parker, submitted, a fair reading of the Arbitrator’s reasons as a whole reveals that he was fully aware of Ms Moriarty-Baes’ “overuse” claim. The Arbitrator expressly noted the evidence in support of such a claim at T11.1, when dealing with Dr Khor’s evidence, and at T11.10, when dealing with Dr Mill’s detailed opinions in his report of 30 March 2011.
Though there is an error in the transcript (discussed at [67] below), it is clear that the Arbitrator was well aware that Dr Mill supported the claim that Ms Moriarty-Baes developed symptoms suggestive of an occupational overuse mechanism of injury resulting from the unaccustomed increased load to the right shoulder from her inability to use her left arm.
This ground of appeal is rejected.

MS MORIARTY-BAES’ POST-INJURY DUTIES

Submissions

Mr Moffet submitted that the Arbitrator erred in finding (at T5.18) that Ms Moriarty-Baes returned to normal duties and, in so finding, he misunderstood the level of left wrist disability. This finding “affected [the Arbitrator’s] capacity to properly evaluate the overuse of the right shoulder” and understated the level of the left wrist disability. It was argued that unless the findings in relation to the primary injury are reflected in the evidence, any consequential injury cannot be properly evaluated.

Discussion and findings

This challenge is based on certificates from Dr Mill, which suggest that, since the injury to the left wrist, Ms Moriarty-Baes has only ever been certified fit for light duties. However, this evidence must be viewed in light of the submissions made at the arbitration. At T20.22 on 11 December 2014, Mr Moffet drew the Arbitrator’s attention to Ms Moriarty-Baes’ evidence that, after a couple of weeks off after the first operation on her wrist, she “returned to work” and was “essentially doing [her] normal duties one handed”.
After referring to the second operation, which was in July 2012, Mr Moffet submitted (at T34.25 – 11 December 2014) that it was “to be noted that [Ms Moriarty-Baes], when she was working, was working on her normal duties”. Further, Mr Moffet submitted (at T43.8 – 11 December 2014) that Dr Ho recorded that Ms Moriarty-Baes “was doing everything on her right upper limb as normal duty work”. It was counsel for the respondent who suggested (at T27.34 – 11 December 2014) that “the majority of the time [Ms Moriarty-Baes] was, in fact, on lighter-type work doing greeting work”.

Thus, in finding that Ms Moriarty-Baes returned to work on her ordinary duties after the first operation, the Arbitrator made a finding that was consistent with the evidence from Ms Moriarty-Baes, evidence upon which Mr Moffet relied. In these circumstances, it is not open to argue on appeal that the Arbitrator erred in making that finding.
Moreover, this challenge has taken the Arbitrator’s statement out of context. The full statement, starting at T5.18, is:
“As I understand the evidence, however, [Ms Moriarty-Baes] returned to work with the respondent doing her ordinary duties. [Ms Moriarty-Baes] continued to complain about the significant problems that interfered with the performance of all aspects of her work duties and her domestic life because of her left wrist condition.”
Thus, as Mr Parker submitted, the Arbitrator was well aware of Ms Moriarty-Baes’ complaint of ongoing disability in the left wrist and he clearly accepted that she had ongoing symptoms in her wrist, which restricted her use of it. This is demonstrated by the Arbitrator’s several references to the evidence of Ms Moriarty-Baes’ continuing left wrist symptoms and his acknowledgment that the surgery did not cause any “radical improvement in [her] condition” (T5.16).
Last, notwithstanding Mr Moffet’s submissions, the Arbitrator correctly noted that, following the second operation, Ms Moriarty-Baes returned to work with the respondent as a “greeter” and that that was “obviously a light duty of [sic] work, not involving any, or very much, manual work” (T7.11).
It follows that even if the Arbitrator erred in saying that Ms Moriarty-Baes returned to her “ordinary duties” after the first operation, and I do not accept that he did, it was not an error that has affected the outcome. He was well aware of her return to work on light duties after the second operation and, more importantly, that she continued to complain about significant problems (with her left wrist) that “interfered with the performance of all aspects of her work duties and her domestic life” (T5.21). The Arbitrator was not only aware of these matters, but clearly took them into account in his assessment of the claim. The real issue was whether the right shoulder condition resulted from the left wrist injury and whether the Arbitrator erred in finding that it had not.

FAILURE TO PRODUCE DR GRAY’S REPORT

Submissions

Mr Moffet argued that the respondent’s failure to produce Dr Gray’s report(s) prevented Ms Moriarty-Baes from relying on them. He contended that the Arbitrator erred by not taking into account the respondent’s “transgression when acting in ‘equity, good conscience and on the substantial merits of the case’ as he was obliged to do under section 354 of the 1998 Act”.

Discussion and findings

It is accepted that the respondent was obliged to produce both of Dr Gray’s reports to Ms Moriarty-Baes (see cl 46 of the 2010 Regulation) and that it failed to do so. That was most unsatisfactory. Insurers, and the legal profession, are reminded, yet again, of the requirement to comply with the Regulation, which directs, in mandatory terms, that “relevant reports” be served. However, the issue on appeal is whether the Arbitrator erred in the manner alleged by Mr Moffet. Clearly, he did not.
Mr Moffet’s reliance on s 354(3) is misplaced. That provision provides:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form.”
Provisions such as this do not release the Commission from the obligation to apply the rules of law in arriving at its decision (per McColl JA (Giles and Tobias JJA agreeing) in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [88], citing Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gubbins)). Nor do the words have a fixed meaning independent of the statutory context in which they are found (Gubbins at 30).
Similarly, in dealing with another “substantial merits … without regard to legal forms or technicalities” clause (s 364 of the Commonwealth Electoral Act 1918 (Cth)), Gleeson CJ, Gummow and Hayne JJ said that such “[p]rovisions … do not exonerate the court from the application of substantive rules of law” (Sue v Hill [1999] HCA 30; 199 CLR 462 at [42]). This statement was quoted and applied by McColl JA (Tobias JA agreeing) to proceedings in the Commission in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 at [90].
The relevant substantive rule of law at issue in the present case is the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298, which, briefly stated, is that the “unexplained failure by a party … to call witnesses … may (not must) in appropriate circumstances lead to an inference that the uncalled evidence … would not have assisted that party’s case” (Cross on Evidence, LexisNexis (at [1215])).
When, at the arbitration, Mr Moffet made a Jones v Dunkel submission about the absence of Dr Gray’s reports, the Arbitrator correctly pointed out that the principle did not apply because, given the terms of cl 49, which restricts a party to only one forensic medical report, the absence of Dr Gray’s report was not “unexplained”. Because of cl 49, the respondent could not rely on Dr Gray’s reports unless it declined to rely on Dr Wallace’s reports, and, unless she wished to abandon Dr Mastroianni’s report, neither could Ms Moriarty-Baes have tendered Dr Gray’s reports. Mr Moffet has not challenged the Arbitrator’s Jones v Dunkel ruling.
As Mr Parker submitted, Mr Moffet has not made any specific submission as to what the Arbitrator could or should have done, other than to say that the Arbitrator erred by not taking into account the respondent’s “transgression when acting in ‘equity, good conscience and on the substantial merits of the case’ as he was obliged to do under section 354 of the 1998 Act”. Mr Moffet’s submission was unhelpful.
Other than drawing a Jones v Dunkel inference, which was not open, exactly how the Arbitrator should have taken the “transgression” into account was not explained. Cases in the Commission are determined on the evidence tendered, and, subject to the legislative provisions that govern proceedings in the Commission, the application of substantive rules of law. In the circumstances, the Arbitrator did not err in the manner alleged by Mr Moffet. This ground of appeal was without substance.

DR MILL’S EVIDENCE

Submissions

Mr Moffet contended that the Arbitrator erred when he failed to “adequately consider” the evidence of Dr Mill on the ground that Dr Mill was “merely a general practitioner”. Mr Moffet submitted that Dr Mill “logically, in detail and by reference to the clinical evidence explained that the shoulder symptoms were a result of an ‘unaccustomed increased load to [Ms Moriarty-Baes’] shoulder (from a reduced ability to use her left arm)’”.
Mr Moffet argued that Dr Mill’s evidence was “by far the most comprehensive medical reasoning in the case” and that it was “never challenged on the basis of any considered reasoning”. For the Arbitrator to “overlook” Dr Mill’s evidence, because he was not a specialist, “was to fall into error”.

Discussion and findings

This challenge cannot be sustained.
The Arbitrator carefully considered the evidence from Dr Mill at several places in his decision. He referred, in particular, to Dr Mill’s note that Ms Moriarty-Baes complained of right shoulder soreness on 19 October 2009. He also acknowledged that there were “a number of consultations with Dr Mills [sic] or other medical practitioners in that practice at which [Ms Moriarty-Baes] complained of pain in her right shoulder” (T5.30).
The Arbitrator recorded (starting at T8.34) that Mr Moffet:
“took the Commission through the records from Dr Mills [sic] practice to establish that there were, indeed, complaints about right shoulder pain in 2009 and 2010 which could be married up, I suppose, with activities which [Ms Moriarty-Baes] was performing, mainly at home but also at work at that time.”
The Arbitrator also acknowledged that Dr Mill connected the right shoulder symptoms with the nature of Ms Moriarty-Baes’ work (T9.27), and that Ms Moriarty-Baes’ “most enthusiastic” (T11.6) support came from Dr Mill.
Dealing with Dr Mill’s report of 30 March 2011, the Arbitrator said that Dr Mill accepted that Ms Moriarty-Baes developed symptoms suggestive of an occupational overuse mechanism of injury resulting from an unaccustomed increased load to the right shoulder from “that which is ability [sic] to use her left arm” (T11.12). This was clearly a transcription error. Though the audio recording of the decision is unclear, both the context and the report make it clear that the Arbitrator said “from her inability to use her left arm”. The Arbitrator noted that Dr Mill traced the development of the symptomatology in Ms Moriarty-Baes’ right shoulder between October 2009 and 13 April 2010.
The Arbitrator then quoted the following passage from Dr Mill’s report:
“In summary, when consideration of all the evidence is made and scientifically valid reasoning applied, I find that the most likely aetiology of injury is that increased loading to her right arm (due to decreased function of her left) provided the predominant basis for the development and progression of the shoulder injury.”
The Arbitrator accepted that this was “important and considered evidence” though “it [was] not the evidence of her specialist and the force of the opinion must be considered in that context” (T11.27). After noting that the opinion from the physiotherapist (Ms Ekman) was of “little weight at all” (T12.2), the Arbitrator then considered the evidence of the specialist medical practitioners. After noting that that left the case “rather precariously balanced” (T12.28), he concluded, for reasons stated, that he accepted the evidence of Dr Ho and that he was not persuaded that Ms Moriarty-Baes’ right shoulder condition was caused by her employment, or as a result of favouring her left arm.
The above analysis demonstrates that the Arbitrator did not fail to “adequately consider” the evidence from Dr Mill on the ground that Dr Mill was “merely a general practitioner”. The Arbitrator considered all the relevant evidence and assessed the strength of Dr Mill’s evidence in the context that he was not a specialist. He weighed that evidence with and against the other evidence tendered, which included evidence from several specialists. That approach was open to the Arbitrator and disclosed no error.

DR JANSEN’S EVIDENCE

Submissions

Mr Moffet submitted that the Arbitrator erred in saying that Dr Jansen was “sitting on the fence”. He said, relying on Dr Jansen’s report to Dr Mill of 5 December 2012, that Dr Jansen supported the causal connection claimed.

Discussion and finding

The Arbitrator’s statement that Dr Jansen was “sitting on the fence” has to be read in its proper context. Dr Jansen wrote several reports to Dr Mill about Ms Moriarty-Baes’ shoulder condition. In the report relied on by Mr Moffet, dated 5 December 2012, Dr Jansen wrote:
“[Ms Moriarty-Baes] has returned for review. As you know she is getting increasing pain in her right shoulder. She has had to use it more since her left wrist surgery and this has been a significant problem. As you know [Ms Moriarty-Baes’] employment came to an end last Friday and she has lost her job and is currently not working. [Ms Moriarty-Baes’] shoulder pain is superior shoulder pain that has a posterior component. It is worse with activities. She is taking Panadeine Extra for this. As you know she has had some extensive physiotherapy but [this] has not given her any long term benefit. [Ms Moriarty-Baes] has had some partial relief with cortisone injections in the glenohumeral joint. [Ms Moriarty-Baes’] last MRI showed a very small partial thickness tear with some AC joint synovitis with some mild osteoarthritis of the glenohumeral joint.”
Dr Jansen then set out his findings on examination. He described Ms Moriarty-Baes as a “difficult problem” and said that she seemed to be heading towards surgery, the results of which would be difficult to predict.
On 9 October 2014, Ms Moriarty-Baes’ solicitor wrote to Dr Jansen enclosing a copy of Dr Mill’s report of 30 March 2011, which was supportive of Ms Moriarty-Baes’ claim, and copies of reports from Dr Wallace and Dr Ho, which supported the respondent’s position. The letter added that the respondent’s original decision to decline liability was “overturned on an opinion of a Dr Gray whose report the respondent will not let us see”. The letter continued:
“In light of all the evidence including the history given to you by our client we asked [sic] you to consider whether the right shoulder condition results from the injury to the left wrist and therefore whether the proposed right shoulder surgery is reasonably necessary as a result of the left wrist injury. We note that you have expressed thoughts relevant to these issues in your letters dated 9 October 201 [sic] and 5 December 2012 to Dr Mill.”
The letter concluded that Ms Moriarty-Baes had an ILARS grant to cover the cost of the report.
On 11 November 2014, the solicitor’s assistant contacted Dr Jansen’s rooms and was told that he was not prepared to provide a report as the matter had gone to an “IME” (this was, presumably, a reference to the fact that Dr Ho had provided a report).
Ms Moriarty-Baes’ solicitor again wrote to Dr Jansen on 17 November 2014, advising that the opinion of the AMS (Dr Ho) is not binding on the Commission and the question of whether the surgery Dr Jansen recommended (and that Ms Moriarty-Baes wishes to undertake) was a matter for an Arbitrator, subject to all the evidence. The letter continued:
“To assist us and the Commission in that regard we would be most grateful for your opinion as to whether the surgery is reasonably necessary in the circumstances of Mrs Moriarty-Baes.
As the treating doctor you are entitled to your own opinion and in such matters your opinion will most likely carry the most amount of weight.
In light of the above, we would be most grateful for your opinion in this matter. As the matter is scheduled for a conciliation/arbitration hearing on 11 December 2014 an early reply would be most appreciated.
We look forward to hearing from you.”
On 10 December 2014, Ms Moriarty-Baes’ solicitor contacted Dr Jansen’s rooms and was told that “the doctor didn’t know how he could add to the matter and there were reports to the GP about this”. He said that the matter was listed for hearing on 11 December 2014 and he would be grateful for a report dealing with the need for surgery. It is agreed that Dr Jansen provided no further report.

Dealing with Dr Jansen’s evidence, the Arbitrator said, at T12.4:
“It might be implied that Dr Jansen is sympathetic to the view that [Ms Moriarty-Baes’] right shoulder pain has some connection with her left wrist injury. However, that is not an opinion that the doctor clearly expresses in his reports. The doctor has been asked to comment on the opinion of Dr Ho and, indeed, of the opinion of Dr Wallace and he has declined to do so. In those circumstances I do not draw any inference against [Ms Moriarty-Baes] from a failure to adduce such evidence.” (emphasis added)
The emphasised statement in the above quote was correct. Dr Jansen did not clearly express an opinion on causation. It was in this context that the Arbitrator added that Dr Jansen’s opinion was “critical to the outcome of the case and when he sits on the fence, so to speak, it makes resolution of the issue more difficult than it might otherwise be” (T12.15). This statement was consistent with the evidence.
Mr Moffet’s submissions have wrongly assumed that Dr Jansen’s report of 5 December 2012 provided an opinion on causation favourable to Ms Moriarty-Baes and that the Arbitrator was therefore in error in saying that, on that issue, the doctor was “sitting on the fence”. The report did not set out Dr Jansen’s opinion on causation. That is not a criticism of the report or Dr Jansen. The report was addressed to Dr Mill and, quite clearly, Dr Jansen had not been asked to address causation and he did not do so. Instead, he focused on Ms Moriarty-Baes’ presentation, his findings on examination, and the future management of her condition.
Had the report of 5 December 2012 (or, indeed, any of Dr Jansen’s reports) provided an opinion on causation, there would have been no need to ask the doctor to provide a supplementary report on that very point. When asked for an opinion on “whether the right shoulder condition results from the injury to the left wrist and therefore whether the proposed right shoulder surgery is reasonably necessary as a result of the left wrist injury”, Dr Jansen declined to answer. Thus, when read in its proper context, and having regard to the history of the matter, the Arbitrator’s comment disclosed no error.
It follows that this ground of appeal is not made out.

THE PATHOLOGY/DR KHOR’S EVIDENCE

Submissions

Mr Moffet said that the Arbitrator erred in finding that there was no rotator cuff pathology in Ms Moriarty-Baes’ right shoulder. He relied on Dr Jansen’s statement that the MRI scan showed a very small “partial thickness tear”. Therefore, the Arbitrator erred in rejecting the opinion of Dr Khor on the ground that the doctor found, as did Dr Jansen, there was rotator cuff pathology.

Discussion and findings

The Arbitrator quoted Dr Khor’s opinion, at T10.21. Dr Khor said:
“[Ms Moriarty-Baes] continues to present with the issues of persistent left wrist pain which is likely to be a mixed neuropathic nociceptive pain and also right shoulder pain likely to be secondary to rotator cuff pathology and overuse secondary to her left wrist pain. Her pain presentation currently was complicated by issues of medico-legal dispute and also vocational issues. I think there is no easy solution to her pain issues.”
The Arbitrator acknowledged that Dr Khor supported the development of right shoulder pain as a result of overuse secondary to Ms Moriarty-Baes’ left wrist pain, but said that Dr Khor “assumes that it is secondary to rotator cuff pathology and the radiology does not demonstrate any rotator cuff pathology” (T11.2).
The radiology to which the Arbitrator referred was the MRI of 7 November 2011, which Dr Ho described as showing “[m]ild arthritis at the glenohumeral joint. No rotator cuff tear”. This may be contrasted with the MRI scan of 24 September 2010, which Dr Ho said showed “[m]ild supraspinatus tendinosis with a tiny focal partial thickness tear and also mild infraspinatus tendonosis”. It has not been suggested that either of these descriptions by Dr Ho was inaccurate.
While it would have been more accurate to say that the radiology demonstrated different pathology in 2011 than in 2010, the Arbitrator’s statement that the radiology did not demonstrate any rotator cuff pathology was consistent with the most recent MRI scan in evidence, and did not involve any relevant error. It was Dr Jansen’s statement, namely, that the “last MRI showed a very small partial thickness tear”, which was erroneous. The “last MRI” showed no rotator cuff tear.
Dr Ho, whose opinion the Arbitrator accepted, considered the radiological investigations in detail. He concluded that the MRI scan, x-ray and ultrasound “fail[ed] to pick up any significant pathology over the area”. This evidence, coupled with Dr Jansen’s erroneous statement about the “last MRI”, provided a sound basis for the Arbitrator’s statement that the radiology did not demonstrate any rotator cuff pathology. That conclusion provided a valid reason for discounting Dr Khor’s evidence, which was, in part, based on Ms Moriarty-Baes’ shoulder condition being “secondary to rotator cuff pathology”.
It follows that these grounds of appeal are not made out.

OVERUSE OF THE RIGHT ARM

Submissions

Mr Moffet contended that despite multiple clinical notes, expert and documentary references as to Ms Moriarty-Baes’ complaints of overuse of her right shoulder in response to her left wrist injury, the Arbitrator erroneously refused to find that she had overused her right arm. He relied on the “entirety of [his] submissions” in support of this ground.

Discussion and findings

The Arbitrator was well aware that Ms Moriarty-Baes complained of pain in her right shoulder with use, and he noted the evidence to that effect from several sources. However, the complaint of pain with use did not establish that the right shoulder condition resulted from the injury to the left wrist. That issue depended on an assessment of the whole of the evidence, expert and lay.
The Arbitrator noted Ms Moriarty-Baes’ evidence in the matter was “brief in the extreme” (T8.3). He added that there was “meagre evidence” (T8.24) about the nature of Ms Moriarty-Baes’ work duties and about the activities she performed at home. These observations were based on the fact that Ms Moriarty-Baes’ statement of 11 December 2014 said nothing relevant about the nature of her duties. The only reference in it to use of the right shoulder was to the four day period after the first operation when she used a touch screen and had a sore shoulder by the end of the fourth day.
To ascertain Ms Moriarty-Baes’ pre-injury duties, the Arbitrator was forced to rely on the history recorded by Dr Ho. That was unsatisfactory, but highlighted the unsatisfactory state of the lay evidence presented in support of the claim. With respect to the alleged overuse of the right shoulder because of the left wrist injury, Ms Moriarty-Baes’ statement was effectively silent.
In these circumstances, the Arbitrator did not err in failing to find that the right shoulder condition had resulted from the injury to the left wrist. It follows that this ground of appeal is not made out.

CLEAR EVIDENCE

Submissions

Mr Moffet submitted that despite there being no need at law to find evidence of overuse in Ms Moriarty-Baes’ statement, the Arbitrator erred in “requiring” “clear evidence from [Ms Moriarty-Baes] as to precisely how she overused her right arm”.

Discussion and findings

Mr Moffet’s submission is based on the incorrect assumption that the Arbitrator “required” clear evidence from Ms Moriarty-Baes as to precisely how she overused her right arm before she could succeed. He did no such thing.
The passage challenged by Mr Moffet came after the Arbitrator said that if Ms Moriarty-Baes used her right arm for hanging out the washing and for cleaning, it was not “altogether clear … from her evidence that she did more of that because of the injury to her left arm” (T14.13). He added, noting that Ms Moriarty-Baes is right-hand dominant, that she would “ordinarily … perform most of her everyday chores primarily using her dominant right arm” (T14.16). Both these statements were open on the evidence.
The Arbitrator then said, at T14.18:
“It is, therefore, difficult to understand a connection between the left wrist injury and the right shoulder condition in the absence of clear evidence from [Ms Moriarty-Baes] as to precisely how she overused her right arm, either at work or, more importantly, in the circumstances of this case in the course of performing her domestic activities.”
In assessing and weighing the evidence, the Arbitrator was entitled to note the lack of clear evidence from Ms Moriarty-Baes on the very issue in dispute, namely, whether, because of the injury to the left wrist, she had in fact overused her right shoulder in such a way as to cause the condition now said to be present in it. The Arbitrator’s statement accurately reflected the unsatisfactory state of the lay evidence and disclosed no error. This ground of appeal is without substance and is rejected.

DR HO’S EVIDENCE

Submissions

Mr Moffet submitted that the Arbitrator erred in accepting Dr Ho’s evidence, that overuse would not make any difference (to Ms Moriarty-Baes’ right shoulder), because:
(a)     Dr Ho failed to address the issue of general overuse;
(b)     Dr Ho’s opinion was “in the face of common sense and decades of decisions of this tribunal and its predecessors”, and
(c)     Dr Ho’s opinion was “in ipse dixit style”.

Discussion and findings

The Arbitrator’s analysis of Dr Ho’s evidence started at T3.15, where he said that Dr Ho concluded that Ms Moriarty-Baes’ right shoulder condition was not as a result of her employment. He added that Dr Ho’s opinion “mirrors the opinion of Dr Wallace in many respects” (T3.17).
The Arbitrator returned to Dr Ho’s evidence to record (at T4.10) the doctor’s history of Ms Moriarty-Baes’ normal work duties, a history that was not disputed by Ms Moriarty-Baes. The Arbitrator accepted that history as “indicative of the nature of [Ms Moriarty-Baes’] work” (T4.16) and said it was important, from the perspective of Dr Ho, that that work did not involve overhead or above shoulder work. This statement was consistent with the evidence from Dr Ho.
After reviewing the evidence in support of Ms Moriarty-Baes’ claim, which he said left the case “rather precariously balanced” (T12.28), the Arbitrator returned to Dr Ho’s evidence. The Arbitrator acknowledged, as Mr Moffet had submitted, that Dr Ho “seem[ed] to concentrate on the nature of [Ms Moriarty-Baes’] duties at work in discussing whether the right acromioclavicular joint problem resulted from the left wrist injury” (T13.13).
The Arbitrator then quoted the following passage from Dr Ho’s report, starting at T13.18:
“Bear in mind right AC joint problem probably would involve a lot of above shoulder activities which, in her case, as a sales assistant probably would not involve a lot of above shoulder activity or repeated twisting and bending movements of the shoulder in the above shoulder level. So I don’t think this is related to the work injury which is causing the problem in the left wrist. It will happen whether she is favouring the use of the left hand or not by using the right hand.”
The Arbitrator acknowledged that Dr Ho did not address what the position may have been if Ms Moriarty-Baes used her right shoulder for activities above shoulder height in the course of her domestic duties. He also acknowledged that it seemed clear that Ms Moriarty-Baes may have done that. This statement was based on Dr Gray’s history, quoted in the first s 74 notice, that Ms Moriarty-Baes performed overhead work hanging up washing with her right arm and also performed cleaning work with her right arm above her head.
On the other hand, the Arbitrator added that Dr Ho “fairly emphatically” (T14.5) concurred with Dr Wallace, when he said:
“We [Dr Ho and Dr Wallace] don’t think the problem is really related to favouring the use of the left hand. I certainly do not agree with the opinion of Dr Mill.”
The Arbitrator then said, as discussed earlier in this decision, that it was difficult to understand a connection between the left wrist injury and the right shoulder condition in the absence of clear evidence from Ms Moriarty-Baes as to precisely how she overused her right arm.
The Arbitrator concluded, at T14.26:
“It seems to me that on the evidence of Dr Ho’s view, which I accept, that [Ms Moriarty-Baes] might have or would have developed a problem in any event ie witout [sic] injury seems well and truly open. In the circumstances, I am not persuaded on the basis of the evidence before me that [Ms Moriarty-Baes’] right shoulder condition was caused by her employment or results from favouring her left arm. As that was the only claim that was made in the proceedings, I make an award for the respondent.”
Nothing in the Arbitrator’s approach or conclusion demonstrates any error. The submission that Dr Ho did not address the issue of “general overuse” is incorrect. Dr Ho said, as the Arbitrator noted, that his opinion “more or less concurs with Dr Wallace” and that they did not “think the problem is really related to favouring the use of the left hand”. That comment related directly to the overuse complaint. It is a conclusion that is reinforced by Dr Ho’s next sentence, where he said that he “certainly did not agree with the opinion of Dr Mill”, which dealt extensively with the overuse issue.
The submission that Dr Ho’s opinion was “in the face of common sense and decades of decisions of this tribunal and its predecessors” was unhelpful and did not establish error by the Arbitrator. While the approach to causation in the Commission requires a “common sense evaluation of the causal chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 per Kirby P at 463), as explained by Kirby P, each case will depend on its own facts and be determined on the evidence, including, where applicable, expert evidence. The Arbitrator’s approach was consistent with this statement.
The submission that Dr Ho’s opinion was “in ipse dixit style” failed to acknowledge the correct approach to expert evidence in the Commission, as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock). As Beazley JA (as her Honour then was) stated at [83] in Hancock, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (at [85]).
What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1 at [631]). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
In the present case, Dr Ho set out the history he took from Ms Moriarty-Baes, which history Mr Moffet described at the arbitration as “reasonable enough in terms of the right shoulder complaint” (T43.5 – 11 December 2014), his findings on examination (which included, among other things, a finding that “all the rotator cuff is good[,] there was no evidence of impingement instability and neurovascular examination is normal”), and the findings of all relevant radiological investigations (discussed at [86]–[89] above). Dr Ho also commented, albeit briefly, on the opinions from Dr Wallace, Dr Jansen and Dr Mill.
Under the heading “Reasons for Assessment”, Dr Ho set out his opinions. As noted above (at [105]), Dr Ho said that the problem with the right shoulder “will happen whether [Ms Moriarty-Baes] is favouring the use of the left hand or not by using on the right hand”. The Arbitrator fairly acknowledged, in the course of argument, that Dr Ho’s opinions were not “phrased in an altogether felicitous way” (T10.23 – 11 December 2014).
However, Dr Ho’s opinions were clear and were properly based on a reasonable history, his findings on examination, and his assessment of the radiological investigations. As the Arbitrator observed, Dr Ho’s opinion was a “more thoroughly argued opinion than that of Dr Wallace” (T3.18). In the circumstances, the Arbitrator was entitled to rely on Dr Ho’s opinion and that reliance involved no error.
It is accepted that, in assessing the weight to be given to a particular doctor’s evidence, it will be relevant to consider the doctor’s explanation, or lack of it, for his or her opinion. The Arbitrator was therefore correct when he said that Dr Wallace had not explained his opinion and that “ordinarily” he would give little weight to an opinion that was a “bare statement as opposed to a reasoned argument” (T13.6). Significantly, however, the Arbitrator said that the same was true of the opinions of Dr Mastroianni and Dr Khor, noting that neither gave “any real analysis or explanation as to why they have reached the opinion that they reached” (T13.10). The same criticism could not be made of Dr Ho’s report.

FINDING AGAINST THE WEIGHT OF EVIDENCE

Submissions

Mr Moffet relied on his submissions generally but made no specific submissions in support of this ground.

Discussion and findings

In dealing with Mr Moffet’s previous submissions, I have extensively reviewed the evidence and the errors allegedly made by the Arbitrator in dealing with that evidence. As Mr Moffet has made no specific submissions in support of this ground, it is sufficient to say that, for the reasons explained earlier in this decision, it was open to the Arbitrator to reach the conclusion he reached and neither his approach nor his conclusion disclosed any error.
It is appropriate to note, as Presidential members have in dozens of decisions, that s 352 appeals are not a rehearing where a Presidential member can, in the absence of error, substitute his or her view for the view reached by an Arbitrator. Appeals to Presidential members are restricted to the identification and correction of error (s 352(5)). For the reasons explained in this decision, Mr Moffet has failed to establish any relevant error by the Arbitrator. To say, without any properly reasoned argument, that the decision was against the weight of the evidence was unhelpful.
The Arbitrator carefully considered the competing medical opinions and preferred the opinion of the AMS, Dr Ho. It was open to him to do so. It follows that this ground is not made out.

THE BEST EVIDENCE RULE

Submissions

Mr Moffet submitted that the Arbitrator applied the “best evidence” rule in finding that Dr Ho’s evidence should be accepted as to Ms Moriarty-Baes’ pre-injury duties and when saying that Ms Moriarty-Baes’ own evidence should be accepted on the question of overuse. This was said to be an error of law because the rules of evidence do not apply in the Commission. Mr Moffet contended that this error “fundamentally affected the [A]rbitrator’s findings on the amount of overuse of her right arm that [Ms Moriarty-Baes] endured”.

Discussion and findings

Mr Moffet’s submissions on this ground are entirely without substance and are rejected.
At the arbitration, the Arbitrator specifically asked Mr Moffet if there was any evidence of Ms Moriarty-Baes’ “normal duties”, which he said was “pretty important” and a “fundamental thing about a workers compensation claim” (T35.6 – 11 December 2014). Mr Moffet responded that Ms Moriarty-Baes was a “checkout operator” (T35.11 – 11 December 2014). In response to the Arbitrator’s statement that such a job was “pretty varied, isn’t it”, Mr Moffet submitted that the Commission is a specialised tribunal and that “you can inform yourself as to those matters” (T35.25 – 11 December 2014).
Mr Moffet later criticised Dr Ho’s evidence because he did not focus on the “above shoulder work or shoulder level work that Dr Jansen thought was important” (T43.22 – 11 December 2014). This was a reference to Dr Jansen’s history in his report of 7 September 2010 that Ms Moriarty-Baes’ post-injury duties involved work with touch screens, which involved a lot of work at shoulder level, and Dr Ho’s history that her duties did not involve overhead work.
The Arbitrator responded that it was overhead work that would cause an AC condition and asked if there was “anything anywhere that either disputes that or, alternatively, suggests that [Ms Moriarty-Baes] did do overhead work [indistinct] apart from the screen, which is probably close enough to overhead work” (T44.3 – 11 December 2014). Mr Moffet merely replied that Dr Jansen thought that was important and referred to evidence that Ms Moriarty-Baes had reported difficulty with lifting and folding at home. He added that Dr Jansen recorded that Ms Moriarty-Baes’ shoulder pain was made worse with any activities overhead.
Mr Moffet returned (at T46.3 – 11 December 2014) to Dr Ho’s history of Ms Moriarty-Baes’ duties, submitting that it was “quite broad ranging”, but it did not talk about the touch-screen work. (It will be recalled that the touch-screen duties were part of the duties Ms Moriarty-Baes did after the injury to her left wrist. Thus, they were not her pre-injury duties.)
In light of the above exchanges, Mr Moffet’s submissions on appeal were surprising, to say the least. The Arbitrator considered and assessed the evidence tendered. As noted earlier in this decision (see [93] above), Ms Moriarty-Baes’ statement of 11 December 2014 said nothing relevant about the nature of her pre-injury duties. This meant that, as often occurs in cases in the Commission, though it is completely unsatisfactory, the Arbitrator was forced to extract, as best he could, the evidence of those duties from other sources. He said, starting at T3.32:
“[Ms Moriarty-Baes’] normal hours of work were somewhat less than 20 hours a week as I understand the evidence. Unfortunately in [Ms Moriarty-Baes’] signed statement in this matter, there is no unequivocal description of the nature of her work and her job description, to use a colloquial expression, has to be gleaned from the medical evidence and other material before the Commission. Dr Ho, in his report, records that [Ms Moriarty-Baes’] work involved the ordinary check-out duties that one might associate with a customer assistance operative at the respondent or any other large store. He says this:
‘Her normal duty of work certainly included taking phone calls, serving customers, scanning all the products and also putting the products into the shopping containers and handing them to customers.’
That being the best evidence on the subject I intend to accept that evidence as indicative of the nature of [Ms Moriarty-Baes’] work. It is important probably from the perspective of Dr Ho that it did not involve over head or above shoulder work.” (emphasis added)
Evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [75]). It has not been submitted on appeal that, on the issue of Ms Moriarty-Baes’ pre-injury duties, there was better evidence available to the Arbitrator, on which he should have relied, instead of Dr Ho’s history. It is therefore unclear what evidence the Arbitrator should have had regard to on this issue, if he erred in having regard to Dr Ho’s history. The Arbitrator was aware of, and referred to, Ms Moriarty-Baes’ evidence of developing shoulder symptoms in 2010, “probably when operating a newly installed touch screen register over four days using her right arm” (T8.10). However, as noted above, this occurred after the left wrist injury. Moreover, it was not evidence of “overhead work” and was not sufficient to establish a s 4 injury to the right shoulder, if that was Mr Moffet’s point.
The Arbitrator was entitled to have regard to Dr Ho’s history, it being the best evidence on the subject. Naturally, it would have been preferable if Ms Moriarty-Baes had given evidence in her statement of her pre-injury duties. That she did not was unsatisfactory and unhelpful. It left the Arbitrator to do the best he could with the evidence tendered. That evidence included the history recorded by Dr Ho, an independent AMS appointed by the Commission.
Mr Moffet’s second point on this ground – that the Arbitrator applied the “best evidence rule” when saying that Ms Moriarty-Baes’ own evidence should be accepted on the question of overuse – is unsupported by any reference to the Arbitrator’s decision or any reasoned argument. It seems to be a reference to the Arbitrator’s statement (at T14.18) that it was difficult to understand a connection between the left wrist injury and the right shoulder condition in the absence of clear evidence from Ms Moriarty-Baes as to precisely how she overused the right arm, either at work or while performing domestic duties. This statement has been discussed above under “Clear Evidence” and, as stated at [100] above, in assessing and weighing the evidence, the Arbitrator was entitled to note the lack of clear evidence from Ms Moriarty-Baes on the very issue in dispute.

I make the following additional observation about this ground.
The NSW Court of Appeal (Beazley, Giles and Santow JJA) considered the best evidence rule in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. In a joint judgment, the Court observed that the “rule is of ancient origin and, it appears, of doubtful modern relevance” ([684]). The Court added that it was no more than a rule of practice that a court would attach no weight to secondary evidence of the contents of a document unless the party seeking to adduce such evidence had first accounted for the non-production of the original (Parker LJ in Masquerade Music Ltd v Springsteen [2001] EWCA Civ 513 (Springsteen)).
Proof of the contents of a document in a court is now governed by s 48 of the Evidence Act 1995. However, as Balcombe LJ said in Ventouris v Mountain (No 2) [1992] 3 All ER 414 at 426, quoted by Parker LJ with apparent approval in Springsteen, the “modern tendency in civil proceedings is to admit all relevant evidence, and the judge should be trusted to give only proper weight to evidence which is not the best evidence”.
As the Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act), the above points are of limited relevance. However, though the Commission is not bound by the rules of evidence, and there is no prohibition on hearsay material and opinion evidence, it “is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material” (Allsop P (as his Honour then was) (McColl JA agreeing) in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [2]).
In tribunals such at the Commission, every attempt must be made to administer “substantial justice” (Evatt J in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 256). Such a tribunal is “entitled to have regard to evidence which is logically probative whether it is legally admissible or not” (Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482 at 493). Both of these observations have been recently approved by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [17]; 241 CLR 390 at 396.
By referring to Dr Ho’s history of Ms Moriarty-Baes’ pre-injury duties, and to the lack of clear evidence from Ms Moriarty-Baes about the very issue in dispute, the Arbitrator approached the matter by considering (in Dr Ho’s case), and seeking (in Ms Moriarty-Baes’ case), material that was satisfactory, in the probative sense, to assist him in resolving the issues in dispute. That approach was appropriate and disclosed no error.

CONCLUSION

The Arbitrator’s approach and conclusion was open on the evidence and disclosed no error. The Arbitrator’s determination is confirmed.

DECISION

The Arbitrator’s determination of 19 December 2014 is confirmed.

Bill Roche
Deputy President

4 May 2015

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

ASSOCIATE