Munce v Thomson Cool Rooms Pty Ltd - [2017] NSWWCCPD 39

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39
APPELLANT:	Garry Munce
RESPONDENT:	Thomson Cool Rooms Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-125/17
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	4 May 2017
DATE OF APPEAL DECISION:	7 September 2017
SUBJECT MATTER OF DECISION:	Error of fact; application of the principles discussed in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Fox v Percy [2003] HCA 22; 214 CLR 118; non‑compliance with Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	PK Simpson & Co
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Amended Certificate of Determination of 4 May 2017 is confirmed.

INTRODUCTION

The worker suffered an accepted injury to his left wrist and arm. The appeal concerns a dispute regarding impairments to other body parts not initially reported as injured and an alleged consequential condition affecting the right shoulder and arm. The claimed compensation is based upon the Table of Disabilities, which remains in force in respect of injuries which occurred prior to 1 January 2002.

BACKGROUND

The appellant, Mr Munce, was employed by the respondent, Thomson Cool Rooms Pty Ltd, as a joiner. On 29 January 1999, Mr Munce allegedly injured various parts of his body when he fell from a four metre ladder in the course of his employment. He claims that he suffered injuries to his “neck, left wrist, left arm, back, pelvis, left leg, right leg and right arm due to overuse”.
On 4 February 1999, Mr Munce completed an employee’s compensation claim form for the respondent’s then insurer, Zurich Australian Workers Compensation Ltd. He recorded injury to the groin and left hand as a result of the 29 January 1999 injury. Mr Munce also recorded, in a report of injury dated 10 February 1999, the body parts affected as left hand and groin.
In 2001, Mr Munce commenced proceedings in the Compensation Court of New South Wales claiming lump sum compensation in respect of alleged injury to the pelvis, left arm and left leg in respect of the injury on 29 January 1999. The application was heard by Judge Burke who determined that the only compensable injury was the injury to the left arm. His Honour ordered that the respondent pay Mr Munce compensation in respect of 20 per cent loss of use of his left arm at or above the elbow and compensation for pain and suffering.
In 2007 Mr Munce commenced further proceedings in the Commission, in respect of the 29 January 1999 injury. The application filed on that occasion is not in evidence, however, it is apparent that the application sought further lump sum compensation based on an increase in the impairment of the left arm.
On 29 August 2007, Dr John Beer, Approved Medical Specialist (AMS), issued a Medical Assessment Certificate (MAC). He assessed that Mr Munce suffered a further eight per cent permanent loss of efficient use of the left arm at or above the elbow in respect of the injury on 29 January 1999.
On 6 November 2007, the Commission issued a Certificate of Determination – Consent Orders. It was recorded that the respondent agreed to pay Mr Munce the additional compensation as assessed by Dr Beer. It was also recorded that the respondent pay Mr Munce $4,000 for pain and suffering pursuant to (now repealed) s 67 of the Workers Compensation Act 1987 (the 1987 Act).
On 20 April 2010, Mr Munce submitted to a steroid injection into his right shoulder which became infected with staph aureus. As a result Mr Munce was an inpatient in Liverpool Hospital for two months, where he had intravenous antibiotics and surgery to drain the infection.
On 9 May 2011, following a further application by Mr Munce, the matter was again referred to Dr Beer, acting as an AMS, to assess the impairment in the left arm and whether the whole person impairment threshold had been satisfied for the purpose of a work injury damages claim. Dr Beer issued a MAC which recorded a total permanent loss of efficient use of the left arm at or above the elbow at 40 per cent and 24 per cent whole person impairment (the Combined Table values of all sub-totals).
On 20 June 2016, Mr Munce’s legal representatives made a claim, on his behalf, for compensation in respect of the 29 January 1999 injury. In particular, he claimed injury to the back, neck, left leg at or above the knee, right leg at or above the knee, left arm at or above the elbow, and right arm at or above the elbow.
On 22 December 2016, the respondent’s insurer, Allianz, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for the claim. It did not accept Mr Munce sustained a compensable injury to his neck, back, left leg at or above the knee, right leg at or above the knee and right arm at or above the elbow as a result of the incident on 29 January 1999. It confirmed that it had previously accepted liability for injury to the left arm at or above the elbow as a result of the 29 January 1999 injury and that lump sum compensation had been awarded.
On 12 January 2017, Mr Munce lodged an Application to Resolve a Dispute (the Application) in the Commission. He sought an order for lump sum compensation in respect of injury to the neck, left arm, right arm, back, left and right leg. He described the injury to have occurred on 29 January 1999 as a result of falling from a four metre ladder at Mascot Airport International Terminal.
Attached to an Application to Admit Late Documents, dated 7 February 2017, the respondent filed a reply to the Application. It disputed liability for the reasons stated in its s 74 notice dated 22 December 2016.
On 6 April 2017, the matter came before Arbitrator Sweeney for a conciliation and arbitration hearing. No oral evidence was called. After hearing submissions the Arbitrator reserved his decision.
On 1 May 2017, Arbitrator Sweeney delivered an extrempore decision, following which he issued a Certificate of Determination. He accepted that Mr Munce suffered an injury to his left wrist, left shoulder, and other parts of his left arm, and left groin at the time of the injury in 1999. However, he was not persuaded on the balance of probabilities that Mr Munce established a causal relationship between injury to the left arm and the medical condition of his right shoulder in 2010. He was not persuaded that Mr Munce suffered a consequential injury to his right arm by way of overuse. In addition, he was not satisfied that Mr Munce sustained an injury to his back or neck or any injury that could give rise to loss of use of his left leg or right leg. Accordingly, the issue of further permanent loss of efficient use of the left arm was referred for assessment.
On 4 May 2017, Arbitrator Sweeney issued an Amended Certificate of Determination, to correct a typographical error in the Certificate of Determination dated 1 May 2017.
Mr Munce appeals the Arbitrator’s decision.

EVIDENCE

In his statement, dated 25 January 2016, Mr Munce claims that he continues to suffer ongoing pain in his neck, left wrist, left arm, back, pelvis, left leg, right leg and right arm due to overuse. He is experiencing pain starting from his neck down to his lower back. He also feels pain on his left shoulder and left leg. He cannot raise his left arm and hand.
On 29 January 1999, Mr Munce submitted to an x-ray of the left wrist, left hip and pelvis.
On 12 March 1999, Mr Munce attended on Dr Peter Giblin, orthopaedic surgeon at the request of the respondent’s insurer. In Dr Giblin’s report, dated the same, there is no record of injury to the right shoulder, back or neck. Dr Giblin referred Mr Munce for an MRI of his left arm. In a report, dated 6 May 1999, Dr Giblin records the MRI results and states that Mr Munce has Sudek’s dystrophy.
On 2 June 1999, Mr Munce attended on Dr T Parameswaran, consultant orthopaedic surgeon, at the request of the respondent’s insurer. In a report dated the same, Dr Parameswaran records the following history of the injury:
“On 29 January 1999, he was on a ladder while putting a roof on a cool room. The extender locking brake on the ladder gave way and the ladder fell, and he fell with it. He injured his left wrist, left shoulder and left groin.”
In his report, there is no reference to the back, neck and/or right shoulder.
On 4 August 1999, Mr Munce attended again on Dr Parameswaran. In a report dated the same, Dr Parameswaran records, amongst other things, that the last time he examined Mr Munce he did not have any complaints about the right groin but now says “is unable to actively straight leg raise the left lower limb”. Dr Parameswaran also records that there is some tenderness over the anterior inferior iliac spine and it may well be Mr Munce “has a fracture in this region” or may have a ruptured muscle in that area.
On 27 October 1999, Mr Munce attended on Dr A Skapinker, at the request of the respondent’s insurer. In a report dated 29 October 1999, Dr Skapinker records a history of injury to the left wrist, left shoulder and left hip. He also records complaint of painful lumps at the upper inner aspect of the left arm. He further records that Mr Munce’s MRI of the left upper arm performed on 3 May 1999 was reported as being normal. By that time Mr Munce developed a painful and stiff left wrist associated with stiffness at his fingers and thumb.
Dr Skapinker further records Mr Munce’s present complaints of pain and stiffness in the left shoulder, at the left wrist and fingers of the left hand, particularly the thumb. He denies any history of any previous injuries to his left wrist, left shoulder and left hip.
Dr Skapinker found that Mr Munce sustained the following injuries when he fell from a ladder at work on 29 January 1999. He fractured his scaphoid bone at the left wrist, sustained a soft tissue injury to his left shoulder and left groin/hip. He also found that he had developed Sudek’s osteo-dystrophy and the complication of “frozen shoulder” at his left shoulder.
On 26 November 1999, Mr Munce attended on Dr Brian Stephenson, orthopaedic surgeon, at the request of the respondent’s insurer. Dr Stephenson recorded a history of injury to the left wrist and left shoulder. On examination he found that Mr Munce had “a good range of movement in his neck and back”. He considered that Mr Munce had suffered a fracture to his left wrist and had a reflex sympathetic dystrophy.
On 19 April 2000, Mr Munce attended on Dr Philip Sharp, consultant surgeon, at the request of the respondent’s insurer. Dr Sharp only records a history of injury and pain of the left arm and hip. There are no complaints regarding other body parts.
On 16 May 2000, Mr Munce attended on Dr Ian Collins, general surgeon, at the request of his legal representatives. In a report dated the same, Dr Collins records Mr Munce’s “present condition”. Dr Collins records, amongst other things, that Mr Munce’s right arm is not troublesome except for some stiffness of the right hand which Mr Munce attributes to overuse. He also records pain in Mr Munce’s back from the shoulder blades down to the pelvis and tenderness in the pelvic region. Dr Collins noted tenderness in the left groin, an inability to flex the hip. Straight leg raising was limited to 20 degrees compared to 90 degrees on the right. Passive movements of the hip were normal. There was no abnormality of the quadriceps or of the hamstrings and there was weakness of the hip flexors. Dr Collins diagnosed an injury to the pelvis with possible downward displacement of the left side of the pelvis at the pubic symphysis.
On 7 February 2001, Mr Munce attended on Dr James Bodel, orthopaedic surgeon, at the request of Moray & Agnew solicitors. In a report dated 28 February 2001, Dr Bodel records a history of the injury at work on 29 January 1999. He also records that Mr Munce complained of pain in the region of the left arm, left wrist, back and pelvis. He records that Mr Munce underwent physiotherapy for about six months after the injury but still had pain in the left forearm and in the back. Dr Bodel further records that Mr Munce complains that he “continues to have pain down the whole of the left side of the body”.
On examination, Dr Bodel records, there is no spinal deformity. He adds:
“He complains of tenderness in the trapezius muscles at the base of the neck and he has a variable range of neck flexion, extension and rotation to about 70% when formally tested but during the course of the interview he demonstrated a greater range of rotation. He has no restriction of shoulder abduction or rotation on the right hand side and no wasting in the shoulder girdle on the right. There is no lack of elbow, wrist or hand movement and no neurological abnormality in the right upper limb.”
Dr Bodel found that Mr Munce suffered a fracture of the left wrist, a soft tissue injury to the left shoulder, a fracture of the fifth rib on the left hand side, and a soft tissue injury to the back.
In evidence are the clinical records of Caringbah Medical Centre from 27 February 2004 to 12 April 2010. In the clinical notes there is a reference to a referral for a general x-ray of the “C/SPINE” and “CT C Spine”, on 3 December 2004, to exclude disc disease. It is unclear whether Mr Munce underwent the radiological investigations recommended at that time.
The clinical notes also make an oblique reference to the shoulders on 23 September 2005 and 5 December 2005. The Caringbah Medical Centre clinical records to not reveal any further record of complaint to the back, right shoulder, and neck.
In evidence are also several WorkCover NSW – certificates of capacity from 13 August 2004 to 18 March 2016. From 10 February 2014, Mr Munce records diagnosis of work related injury/disease ‘Bilat Shoulders and Multiple injuries” in respect of injury on 29 February 1999. From 4 September 2014, Mr Munce records diagnosis of work related injury/disease “Bilat shoulders, L. hip, L. rip cage, L. wrist, Lumbar spine inflammation”. There are no earlier WorkCover NSW – certificates of capacity referring specifically to these body parts in evidence.
In evidence are several records of radiological investigations. On 2 September 2005, Mr Munce underwent a CT scan of his cervical spine. In a report, dated the same, Dr Adrian Gale recorded minor anterior spondylitic lipping and narrowing of C5/6 and C6/7. He also recorded minor posterior bulging at C5/6 and C6/7 levels.
On 1 August 2006, Mr Munce underwent a CT scan of the lumbar spine. In a report issued by Dr Gale, dated the same, he records L4/L5 level disc degeneration and bulging of the disc annulus. At the L5/S1 level there is also disc bulging of the disc annulus. A similar radiological report is issued by Dr Gale on 4 August 2006.
As discussed above, as part of further proceedings in the Commission in 2007, Mr Munce was assessed by Dr Beer. On 29 August 2007, Dr Beer issued a MAC.
On 26 March 2008, Dr John Neophyton, general practitioner, provided a report to Mr Munce’s legal representatives, in respect of an assessment on 13 March 2008. He records a history of injury on 29 January 1999 to Mr Munce’s left wrist, left shoulder, left ribs, left pelvis. He also records a history that Mr Munce “in the process of the fall [Mr Munce] jarred his neck and dorsal spine”. He adds that Mr Munce complained that:
“pain in his back has worsened since his last assessment and he has pain constantly referred down the left leg and beyond the knee into his foot.”
Mr Munce previously attended on Dr Neophyton on 13 March 2008, however there is no report of that date by Dr Neophyton in evidence.
The pain in his back is recorded to have worsened “over the past 2 years”. He now has “constant pain in the neck as well as associated spasm”. Dr Neophyton further adds that Mr Munce now claims that he has “increased pain in his right leg which he claims is because of overuse now that he has so many problems involving the left leg”.
Dr Neophyton also recorded:
“Bearing in mind that Mr Munce has developed psychological problems to the point where one could possibly describe him as having a hysterical conversion reaction (bear in mind that I am not a psychiatrist and this can be disputed). The point, however, is that Mr Munce has subsequently developed enormous problems involving his left arm.”
Dr Neophyton found that the injury sustained on 29 January 1999 is directly responsible for the fractured left wrist and subsequent problems associated with the left arm and shoulder. The back problems are also associated with the injury that he sustained at the time. He considered Mr Munce’s prognosis to be extremely guarded. He noted that it appeared Mr Munce was deteriorating steadily and developing increasing problems with his neck, back and left upper limb. He specifically recorded that Mr Munce sustained “jarring injuries to his neck, thoracic and lumbar spine areas”. Amongst other things, he found Mr Munce to have permanent impairment of the cervical spine at 5 per cent (with deductions) and lumbar spine at 13 per cent (with deductions).
On 23 July 2008, Mr Munce underwent a CT scan of the lumbar spine. In a report issued by Dr Tim Mander-Jones, small discal lesions at L4-5 and L5-S1 with only minor encroachment on the neural structures were recorded.
The next relevant piece of evidence is a report by Dr John Drew, general surgeon, qualified by Mr Munce’s legal practitioners. On 4 March 2010, Mr Munce attended on Dr Drew, who issued a report dated 18 March 2010. Dr Drew recorded a history of the injury on 29 January 1999. He recorded that Mr Munce sustained a fracture to his left wrist and fractures to his left ribs, together with soft tissue injuries to the “pubic symphysis, the left shoulder, the upper back, the lower back, the neck and possibly the left hip.” Dr Drew records that the “neck condition may be due, and the low back condition may be partly due, to the injury in 1999”. He adds that Mr Munce’s “back condition is partly due to the pre-existing leg inequality which caused lumbar scoliosis”.
Under the Table of Disabilities, Dr Drew found:
“12% permanent impairment of the neck, 8% permanent impairment of the back, 55% permanent loss of use of the left arm at or above the elbow (including loss below the elbow) and 5% permanent loss of use of the left leg at or above the knee (including loss below the knee).”
On 12 March 2010, Mr Munce underwent an ultrasound of the right shoulder. A report dated the same, by Dr Charles Levitt, records “[n]ormal ultrasound of the soft tissues of the right shoulder. Restricted external rotation and abduction associated with pain [illegible] the possibility of adhesive capsulitis.” There are subsequent ultrasounds of the right shoulder with similar findings.
On 17 April 2010, Mr Munce underwent an ultrasound of the right shoulder. In a report by Dr Praneal Sharma, it is recorded that the ultrasound examination demonstrated marked thickening of the sub-acromial bursa with echogenic material in keeping with acute bursitis.
On 19 May 2010, Dr Gregory Markson, sent a report to Dr Chandra Dave, orthopaedic surgeon. In that report Dr Markson reported on evidence of extensive damage to the cartilage which had the appearance of being almost completely eroded in the shoulder. He also noted a complete tear in the supraspinatus tendon. Dr Markson diagnoses septic arthritis with virtual destruction of part of the soft tissue of the shoulder.
In Dr Beer’s MAC, dated 18 May 2011, he refers to Dr Dave’s report dated 4 January 2011. Dr Beer summarises Dr Dave’s report as follows:
“Dr Dave reported with respect to pain in the right shoulder. He ordered a bone scan which was very hot in the right shoulder, Dr Dave related, possibly been [sic] avascular necrosis or stress fracture and there was also a history of dysplastic bronchi and tumour a possibility. He noted from a number of the other reports that the bronchial washings did not give a definite indication as to whether there was cancer present or not. The worker had a septic arthritis in the right shoulder which was drained at Liverpool Hospital.”

On 27 May 2016, Mr Munce attended on Dr Giblin at the request of his legal representatives. In a report dated the same, Dr Giblin records a history of “multiple soft tissue injuries” and a fracture to his left wrist. He specifically records “soft tissue injury primarily to the left side of his body but also to his neck and low back.” He adds to the history that as a result of favouring the left arm, Mr Munce developed soft tissue symptoms in the right shoulder. He also adds that Mr Munce had a steroid injection into his right shoulder which became infected with staph aureus and that he was an inpatient at Liverpool Hospital for two months having intravenous antibiotics as well as surgery to drain the infection. This history appears under the heading “history relating to the injury”.
Referring to the injuries to the left wrist, left and right shoulder, and knees; Dr Giblin opined that Mr Munce would never recover from his injuries and would continue to deteriorate. He concluded that Mr Munce would remain permanently unemployed and reliant upon daily care.
In a supplementary report, dated 27 May 2016, Dr Giblin records an assessment under the Table of Disabilities. He assessed Mr Munce with 70 per cent permanent loss of efficient use of the left arm at or above the elbow, 35 per cent permanent loss of efficient use of the right arm at or above the elbow, 15 per cent permanent impairment of the neck, 15 per cent permanent impairment of the back, 20 per cent permanent loss of efficient use of the left leg at or above the knee, and five per cent permanent loss of efficient use of the right leg at or above the knee.
On 18 August 2016, Mr Munce attended on Professor William Cumming, orthopaedic surgeon, at the request of the respondent’s insurer. In a report dated 19 August 2016, Professor Cumming records a history of injury on 29 January 1999 to both upper extremities, pelvis and right lower extremity. On examination, Professor Cumming records, amongst other things, that marked limitation of cervical movement, particularly to the right side and a cogwheel movement occurs with joint movement in the cervical spine and upper extremities.

PRELIMINARY MATTERS

Monetary threshold

There is no dispute that the threshold requirements of s 352(3) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed ‘on the papers’. 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.

THE ARBITRATOR’S DECISION

Mr Munce relies on the 1999 incident as giving rise to injuries to his neck, left wrist, left arm, back, pelvis, left leg and right leg. He claims that the injury to the right arm is a consequential injury as a result of favouring the left arm, as a consequence of the accepted left wrist injury.
The Arbitrator approached the dispute before him on the basis that it was conceded that Mr Munce was entitled to a referral to an Approved Medical Specialist to assess his claim for further permanent loss of use of the left arm at or above the elbow, however the claims for permanent impairment in respect of the back, neck, both legs and /or right arm remained in dispute.
The claim was brought into existence following an assessment by Dr Peter Giblin who saw Mr Munce on 27 May 2016. The Arbitrator noted that Dr Giblin’s opinion appeared to be based largely upon the history provided to him by Mr Munce. There was no suggestion in his report that he had had access to any of the extensive medical history that had been brought into existence by treating doctors since the original injury in 1999.
The Arbitrator noted (at T5) that in respect of the consequential injury the evidence was “very sparse”, there being a distinct lack of evidence of the alleged overuse.
Although Mr Munce was not directly challenged by way of cross-examination, the Arbitrator outlined a number of factors which suggested that “no great reliance” could be placed on Mr Munce’s account of the nature and extent of his symptomatology.
Firstly, Dr John Neophyton, a surgeon who prepared a report to Mr Munce’s solicitors in 2008, suggested that Mr Munce had developed psychological problems to the point “where one could possibly describe him as having a hysterical conversion reaction”.
The Arbitrator referred extensively to the findings of Judge Burke who heard and determined a claim for lump sum compensation between the same parties in the Compensation Court of New South Wales on 2 July 2001.
The Arbitrator quoted the following extract from Judge Burke’s reasons for judgment in 2001:
“The degree of pain and suffering in the old days etcetera, if I had been a psychiatrist, I would have diagnosed [Mr Munce] as a conversion hysteric but that is not in DSM anymore and nobody uses these terms. But he seems to have an awful lot of complaints that do not appear to have any physiological basis but I accept [Mr Munce] has a degree of pain, physical pain, regarding his wrist, shoulder and the general use of his arm.”
Burke J found that Mr Munce had failed to demonstrate injury to the pelvis and/or groin. Given that finding, the alleged consequential injury to the left leg from the groin/pelvis injury defied further assessment. Further he found that investigations into the alleged injury to the hip showed no relevant pathology that might be capable of demonstrating a loss of efficient use of the leg.
The Arbitrator noted that his Honour made that observation after a contested hearing where he had the opportunity to see and hear Mr Munce and consider the medical evidence which included the evidence of two psychiatrists. The Arbitrator noted (at T7.8) that Mr Munce’s presentation before him was much the same as it was before Judge Burke and to numerous medical practitioners. The most important reason however for the Arbitrator’s concerns in respect of the reliability of Mr Munce’s evidence related to the length of time between the injury and the arbitration hearing.
The Arbitrator placed “great weight” on the contemporaneous materials before the Commission. He applied the decision in Effem Foods Pty Ltd v Lake Cumbeline Pty Limited [1999] HCA 15; 161 ALR 599 (Effem Foods), which approved a passage from the decision of Tamberlin J in the Federal Court in proceedings between the same parties, where his Honour noted that in cases of such delay, the only safe cause is to place primary emphasis on the objectively factual surrounding material, commercial probabilities, together with documents tendered in evidence. Justice Tamberlin said:
“in circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on.”
When Dr Giblin saw Mr Munce in March 1999, he was complaining of pain in the left wrist and arm. At that time Dr Giblin thought that he was “on the edge of reflex sympathetic dystrophy”. There was nothing in Dr Giblin’s report at that time to suggest that Mr Munce was making complaints of pain in other body parts.
An MRI scan of Mr Munce’s left arm taken in May 1999 noted evidence of Sudeck’s atrophy.
The history taken by Dr Parameswaran in his report of 2 June 1999 recorded the history of falling off a ladder and injuring his left wrist, left shoulder and left groin. The doctor noted that x-rays taken on 29 January 1999 of the left hip and pelvis revealed no abnormality. On examination Dr Parameswaran expressed the view that the left hip and trochanteric area was normal to examination.
Mr Munce was examined by Dr Skapinker on 29 October 1999. He recorded the history of injury to the scaphoid bone of the left wrist, soft tissue injury to the left shoulder and a soft tissue injury to the left groin and/or hip.
An examination by Dr Stephenson, an orthopaedic surgeon, in late 1999 revealed a good range of movement of the neck and back and there was no suggestion of any disability at that time other than in respect of the left limb. He also accepted that Mr Munce suffered from reflex sympathetic dystrophy, but did not indicate that he suffered any other injuries or complaints.
Dr Sharp who saw Mr Munce in April 2000 did not record any history beyond the injury to the left arm.
It was not until 16 May 2000, when Mr Munce saw Dr Ian Collins, a general surgeon, that there was any reference to the development of problems in the back in particular. The Arbitrator noted that there is also a suggestion that Mr Munce had an overuse problem relating to his right hand as opposed to the right shoulder and right upper limb at that time.
The Arbitrator concluded (at T12.30):
“On reviewing the contemporaneous medical evidence against the background of what [Mr Munce] has said and the submissions of Mr Carney and Mr Grant, I have reached the conclusion that in terms of primary injury, [Mr Munce] has only established that he suffered injury to his left arm at the level of the wrist and also at the shoulder and an injury [to] his groin at the time of the incident.”
As Mr Munce’s counsel Mr Carney conceded, the complaints of injury to the neck and back appeared very late in the contemporaneous record. The Arbitrator concluded that there was no convincing evidence that Mr Munce suffered an injury to his hip or his neck or back.
In so far as the alleged consequential condition in the right arm is concerned, the Arbitrator concluded that the evidence of overuse is “almost non-existent”. He accepted that given the severity of the injury to the left arm “it might be accepted that [Mr Munce] used his right arm more than he otherwise would and therefore exacerbated or aggravated developing symptomatology in the right shoulder”. The Arbitrator noted a complicated medical history in relation to right shoulder problems. They included the development of a serious infection in the right shoulder as a consequence of a steroid injection into the joint. He also noted that ultrasound examination revealed that Mr Munce suffered septic arthritis with virtual destruction of part of the soft tissues in the shoulder and a diagnosis of “erosive arthropathy”. The Arbitrator concluded (at T14.30):
“It may be that those conditions flowed from an earlier injection. That is not crystal clear. But there is, however, no medical evidence or other that proves that [Mr Munce’s] presentation to doctors in 2010 was the result of overuse or that the subsequent development of septic arthritis was caused by treatment of the overuse condition…”
Dr Dave noted in a report dated 4 January 2011 that Mr Munce possibly suffered from a vascular necrosis or stress fracture and the possibility of dysplasic bronchi and tumour as possible explanations for his condition.
Given the complex medical history, the Arbitrator was not persuaded that Mr Munce established on the balance of probabilities the causal relationship between the injury to his left arm and the medical condition of his right shoulder in 2010.
The Arbitrator was not satisfied that Mr Munce sustained any relevant injury to his back or neck or other relevant injury that could conceivably give rise to a loss of the efficient use of his left leg or loss of use of his right leg.
For these reasons the Arbitrator referred the matter to the Registrar for referral to an Approved Medical Specialist to assess only the extent, if any, of the further impairment to the left arm.

GROUND OF APPEAL

Mr Munce alleges that the Arbitrator erred “as to the facts with respect to the medical evidence provided”.

SUBMISSIONS

Mr Munce’s submissions

Mr Munce’s submissions are sufficiently brief to render it convenient to reproduce them in full:
“1.     Right Arm: The Arbitrator has failed to consider the evidence before the Commission that the applicant had ‘no carer’ at the time of his injury, and therefore has dismissed the possibility that the right injury to his arm [sic] was sustained through ‘overuse’.
2.      The Arbitrator conceeds [sic] on pp 13-14 of the transcript that the Applicant may have overused his right shoulder but then placed undue reliance on a presumption that Dr Giblin did not have the ‘entirety of the medical history in the matter’.
3.     Back: The Arbitrator has erred in not considering the evidence of Dr Parameswaran who noted back pain [r]adiating into the left leg in August 2009 [sic, 1999] some eight months after the accident
4.     The Arbitrator erred in not considering Dr Skapinker’s evidence in October 2009 that he considered that the applicant had injured his back in the January injury.
5.     The two doctors reports of injury to the back in 1 & 2 above must be seen in the context of the left sho[u]lder injury which was severe and required pain killer and intensive treatment which would have masked any other injury particularly the neck and back.
6.     The Right Shoulder: the Arbitrator states that there is no time given for the onset of this injury. This is not correct as he clearly sets out the evidence of extensive treatment by early 2010 which is consistent with the history of a consequential injury.
7.     The Arbitrator misdirected himself by referring to a ‘complex medical condition surrounding the right shoulder’ this complexity has been caused by the treatment the applicant has received and is as a result of the injury. It has not arisen independently of the injury.
8.     The arbitrator has erred in finding a lack of evidence by the applicant as to what disability in the left shoulder has caused the overloading of the right shoulder. It is clear that the left shoulder is almost completely non-functioning. In this circumstance the overloading is obvious and compelling, a finding of consequential injury should have been made.
9.     While the respondent will no doubt rely on the principals [sic] set out in Ireland v the Department of Education and Training concerning co-oberative [sic] evidence for injuries suffered in an injurious event, this case clearly states that all cases must turn on their facts and here the severity of the accident, and the severity and intensity of the initial shoulder and groin injuries and the masking effect this had on other injuries could lead to a finding of impairment in the neck, back and legs.
10.    The Arbitrator has misdirected himself by reliance on evidence relating to a psychological overlay that is (on page 6) that the plaintiff may present as a ‘conversion hysteric’.”

The respondent’s submissions

The respondent’s submissions may be briefly summarised as follows:
(a)     that the Arbitrator made no appealable errors of fact, law or discretion that would justify revoking the Arbitrator’s findings and determination;
(b)     the Arbitrator provided a carefully weighted and cogent statement of reasons to justify the findings of fact and law, and
(c)     the Arbitrator undertook a thorough review of the evidence and oral submissions of the parties and in a carefully weighted and balanced decision, came to a view that was not only correct but open to him to make on the evidence.
I will refer further to the respondent’s more detailed submissions in the course of my discussion.

DISCUSSION

This is an appeal pursuant to s 352 of the 1998 Act. Section 352(5) of the 1998 Act provides:
“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.”
Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6) refers to the grounds of appeal. The Practice Direction states:
“The Appeal Application must state:
…
(b) briefly, but specifically, the grounds relied on in support of the appeal. It is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence. The grounds of appeal must identify the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found …”
The appellant’s grounds of appeal do not comply with Practice Direction No 6. The grounds of appeal make no attempt to identify the respects in which error is alleged. That is unacceptable. Practitioners are reminded that notice of grounds of appeal must comply fully with the legislation and Practice Direction No 6.
As the respondent correctly identifies, the Commission has consistently applied the principles discussed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Whiteley Muir) with respect to the evaluation of findings of fact or law made by a trial judge. Such principles apply equally to an appeal from an Arbitrator pursuant to s 352 of the 1998 Act.
The principles outlined by Barwick CJ in Whiteley Muir are as follows:
(a)     A trial judge (or Arbitrator, as in this case), though not basing his findings on credit, may prefer one view of the primary facts to another as being more probable. Such a finding may only be disturbed if other probabilities so outweigh that chosen by the trial judge that it can be said that his conclusion was wrong.
(b)     Having found the primary facts, the trial judge may draw a particular inference from them and it is not enough that a different inference could be drawn. It must be shown that the trial judge was wrong in drawing such an inference.
(c)     In order for an appellant to show that a trial judge was wrong it is necessary to show that “material facts had been overlooked, or given undue or too little weight in deciding the inference to be drawn; or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong”.
The above principles were cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227.
The respondent also relies upon the decision of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (with Drummond and Mansfield JJ agreeing) whereby his Honour stated (at [28]):
“In that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
His Honour concluded (at [29]):
“the appeal court must come to the view that the trial judge was wrong in order to interfere.”
I do not accept the appellant’s submission that the Arbitrator failed to consider evidence before the Commission that Mr Munce had no carer at the time of his injury and therefore, so it is submitted, dismissed the possibility that the injury to the right arm was sustained through overuse. The appellant made no submissions before the Arbitrator regarding Mr Munce’s care arrangements. The only reference to the care arrangements was a passing reference by Mr Grant, counsel for the respondent, who identified that Mr Munce’s son might well be his carer and did most things for him (T14.17). However, when he became the carer and what arrangements were in place prior to him becoming a carer were left unexplored and unexplained.

As the appellant made no submissions regarding the absence of a carer, in the initial stages after his injury, as a factor contributing to the alleged overuse of his right arm, the Arbitrator cannot have erred in failing to address it: Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
I also reject the submission that the Arbitrator placed “undue reliance” on the absence of a complete history as a basis for not accepting Dr Giblin’s opinion. Although not bound by the rules of evidence; in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Allsop P, as his Honour then was, held (at [2]):
“the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”
The Arbitrator accepted as a general proposition that one might reasonably anticipate that having regard to the severity of the injury to the left arm and wrist, the favouring of that limb might result in overuse of the right arm. However, on my reading of Dr Giblin’s report of 27 May 2016, he doesn’t appear to offer any opinion concerning causation of this consequential condition through overuse. The reference to overuse appears under the heading “history relating to the injury” and appears to be a record of the history Mr Munce provided on that occasion.
If it is a genuine expression of opinion by Dr Giblin, there is no attempt to explain the reasons for it. The Arbitrator correctly placed little weight on it for a number of reasons. First, there is virtually no evidence from Mr Munce concerning the allegation of a consequential injury in the right arm as a result of overuse. Second, there is a complex history of medical treatment concerning the right shoulder including the consequences of a steroid injection into the right shoulder and the development of a staph aureus infection. Moreover, Dr Giblin made no reference to the relevant history in his earlier report of 12 March 1999. That report dealt exclusively with the injury to the left wrist and made no mention of any other injuries. Those findings with respect to Dr Giblin’s evidence were open to the Arbitrator on the evidence presented, or the lack of it, and do not sound in error.
Mr Munce’s submission that the Arbitrator wrongly stated that no timeframe was given for the onset of injury is a misunderstanding of the Arbitrator’s reasons. The Arbitrator said (at T15.32):
“There is nothing really that would assist the Commission in [Mr Munce’s] evidence as to the time, circumstances of onset of his right shoulder problem.” (emphasis added)
That was an accurate statement of the evidence. Mr Munce’s statement is unhelpfully brief. It asserted that the injury to the right arm was due to overuse but gave no evidence of the nature and extent of the overuse alleged or the timeframe for the onset of symptoms. The statement merely recites a range of ongoing physical limitations and impairments.
I do not accept the submission that the Arbitrator “misdirected himself” by referring to a “complex medical condition surrounding the right shoulder”. It is undeniable that there is a complex medical history spaning many years. First, as the Arbitrator found (at T14.6), Dr Giblin diagnosed a soft tissue problem as a result of overuse and as a consequence of a steroid injection into the right shoulder and the subsequent development of a staph infection. Second an ultrasound performed on 12 March 2010 identified the possibility of adhesive capsulitis. Third, Dr Markson’s opinion was that Mr Munce had shoulder septic arthritis and “erosive arthropathy”. Fourth, the Medical Assessment Certificate issued by Dr Beer in 2011, referred to a report of Dr Chandra Dave of 4 January 2011. Dr Dave reported that with respect to the right shoulder there was the possibility of a condition which he described as avascular necrosis or possibly a stress fracture and further there was a history of dysplastic bronchi and the possibility of a tumour. Whether those conditions are constitutional or caused by treatment from the accepted injury were not dealt with by either party. Therefore, contrary to Mr Munce’s submission, there was evidence that the condition may well have arisen independently of the injury.
The submission that by reason of the serious nature of the injury to the left shoulder, “overloading” of the right shoulder was “obvious and compelling” is rejected. For the reasons already given, far from being compelling the evidence in relation to overloading was, as the Arbitrator correctly observed, almost non-existent. It does not necessarily follow that because of a serious injury to the left limb that there must be a resulting overuse of the right limb. The causal relationship must be established on the balance of probabilities from evidence in an acceptable form. It was the lack of such evidence which caused the Arbitrator to conclude that he could not be satisfied on the balance of probabilities of a causal connection between the right shoulder condition and the accepted injury. That was a finding of fact that may only be interfered with if it was wrong in the sense discussed in Whiteley Muir. No such error has been demonstrated.
Mr Munce submits that the Arbitrator erred by failing to consider the evidence of Dr Skapinker who prepared a report dated 29 October 1999. He alleges that Dr Skapinker’s evidence supports the allegation of injury to the back on 29 January 1999. The submission is plainly wrong. Dr Skapinker recorded a history of injury to the left wrist, left shoulder and left hip. In addition, he recorded complaints of painful lumps in the left upper inner aspect of the left arm. He referred Mr Munce for an MRI of the left upper arm which was reported as being normal. Dr Skapinker recorded complaints at that time relating to the left wrist and the fingers and thumb of the left hand. He also recorded complaints of pain and stiffness in the left shoulder. Dr Skapinker noted that Mr Munce did not complain of any tenderness around the groin, but did complain of restricted movement of the left hip.
Dr Skapinker went on to record his clinical examination and radiological findings. He concluded that when Mr Munce fell from the ladder at work on 29 January 1999, Mr Munce suffered a fractured scaphoid bone of the left wrist and soft tissue injuries to the left shoulder, left groin and hip. Dr Skapinker made no reference to any alleged injury to the back or complaints relating to the back. Those findings are consistent with the findings that Judge Burke recorded in his judgment of 2 July 2001 to which the Arbitrator referred. It follows that the Arbitrator did not fail to make any reference to Dr Skapinker’s evidence. Even if he had it could not have affected the outcome of the matter before him because Dr Skapinker’s evidence does not advance Mr Munce’s claim of an injury to the back.
The submission that Dr Parameswaran noted “back pain [r]adiating into the left leg in August 2009 [sic, 1999] some eight months after the accident” is also incorrect. Dr Parameswaran made no reference to an injury to the back at that time. Again that was consistent with the recording of his evidence by Judge Burke to which the Arbitrator also made reference. It follows that Mr Munce’s submissions with respect to the evidence of Drs Parameswaran and Skapinker do not advance his appeal.
The submission that a severe injury to the left shoulder requiring medication and intensive treatment masked the injuries to the neck and back is also rejected. There is no evidence to support that proposition. In any event, it was not a submission that was made to the Arbitrator. Therefore, as previously explained, he cannot have erred in not having dealt with it.
In any event, the objective evidence clearly shows that for at least fifteen months after he was injured Mr Munce made no mention of injuries to neck, right arm, and back. That was so even though he had the opportunity to do so when examined by Drs Giblin, Parameswaran, Stephenson, Skapinker and Sharp during that period. The first mention of injuries to the right arm and back was made to Dr Collins in May 2000. The first reference to the neck is in Dr Stephenson’s report in November 1999 where it is noted a good range of movement. In February 2001, Dr Bodel clearly had misgivings about the veracity of the complaints of neck pain noting that the restricted range of movement of neck on examination was inconsistent with a greater range of movement of the neck during the consultation. It is not until December 2004 that Mr Munce is referred for radiological investigations of his spine. It is unclear whether Mr Munce undergoes radiological investigations in 2004. However, the evidence suggests that it is not until September 2005 that Mr Munce undergoes radiological investigations in respect of his cervical spine and August 2006 in respect of his lumbar spine. That is over six years after the alleged injury.
Mr Munce submits that the Arbitrator erred by placing reliance on evidence relating to a psychological overlay. His submissions do not clearly articulate how the Arbitrator’s reference to the evidence of a psychological overlay resulted in any error. The Arbitrator referred to the evidence of Dr Neophyton who diagnosed Mr Munce as suffering from a hysterical conversion reaction in 2008. The Arbitrator observed that, in his judgement in 2001, Judge Burke commented that Mr Munce “seems to have an awful lot of complaints that do not appear to have any physiological basis but I accept that [Mr Munce] has a degree of pain, physical pain, regarding his wrist, shoulder and the general use of his arm”.
The Arbitrator noted that Judge Burke’s observation was made after a contested hearing in which he had the opportunity to see and hear Mr Munce and consider the medical evidence as it then was including the evidence of two psychiatrists. Further, the Arbitrator noted (at T7) that Mr Munce’s presentation before him was much the same as it was many years previously before Judge Burke. He concluded, however, that the most important reason for his concerns in respect of Mr Munce’s reliability was simply the length of time between the injury and the arbitration hearing (Effem Foods). Therefore, it was appropriate for the Arbitrator to give weight to the contemporaneous material before the Commission in reaching a conclusion as to the injuries suffered by Mr Munce at the time of his fall in 1999.
I reject the submission that the Arbitrator’s approach to the assessment of Mr Munce’s reliability resulted in any “misdirection”. Such findings of an Arbitrator will only be disturbed on appeal if they are found to be contrary to incontrovertible facts or other uncontested testimony or are glaringly improbable or contrary to compelling inferences: Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy). In that matter their Honours, Gleeson CJ, Gummow and Kirby JJ, cautioned against reliance upon demeanour findings, urging trial judges to pay more attention to the “apparent logic of events” and the existence of “contemporary materials” and other “objectively established facts” as a means of reasoning (at [31]). The Arbitrator’s approach to the assessment of the evidence was consistent with their Honours’ observations in Fox v Percy. It was clearly a relevant matter for the Arbitrator to comment on the evidence and appearance of a psychological overlay. However, it is equally clear that he placed more weight on the lapse of time and the contemporary material to assess the reliability of Mr Munce’s evidence. That was appropriate and consistent with accepted authority.

CONCLUSION

On the evidence presented, it was open to the Arbitrator to conclude that Mr Munce had failed to discharge the onus of establishing that he had any relevant injury to his back or neck or any relevant injury that could conceivably give rise to a loss of use of his legs. Further, on the evidence presented it was open to the Arbitrator to conclude that Mr Munce failed to establish that he suffered a consequential injury to his right arm by way of overuse. For the reasons given above, no error has been demonstrated with respect to those findings.

DECISION

The Arbitrator’s Amended Certificate of Determination of 4 May 2017 is confirmed.

Judge Keating
President

7 September 2017