Murphy v Allity Management Services Pty Ltd - [2015] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49
APPELLANT:	Cheryle Murphy
RESPONDENT:	Allity Management Services Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-759/15
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	26 May 2015
DATE OF APPEAL DECISION:	24 August 2015
SUBJECT MATTER OF DECISION:	Hospital and medical expenses under s 60 of the Workers Compensation Act 1987; whether surgery reasonably necessary as a result of work injury; relevance of subsequent non-work injury; assessment of evidence; application to rely on fresh evidence or additional evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	John McGuire & Associates
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. The appellant worker’s application to rely on fresh evidence or additional evidence on appeal is refused. 2. The Arbitrator’s determination of 26 May 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.

BACKGROUND

The appellant worker, Cheryle Murphy, worked for several years as a kitchen hand at the Coastal Waters Aged Care Facility at Worrowing Heights on the south coast of New South Wales. The respondent employer, Allity Management Services Pty Ltd, took over management of the facility in 2014.
On 29 June 2014, Ms Murphy slipped and fell on wet tiles in the facility’s kitchen, landing on her right side and injuring her right knee, right hip, right hand and right shoulder. Liability was initially accepted and compensation paid. The dispute on appeal concerns a claim for the cost of surgery under s 60 of the Workers Compensation Act 1987 (the 1987 Act) to Ms Murphy’s right shoulder performed on 8 December 2014. The background to that claim is as follows.
On referral from her general practitioner, Dr Sandra Moe, Ms Murphy came under the care of Dr Cossetto, orthopaedic surgeon, who she first saw (for her right shoulder) on 11 August 2014. After arranging for an MRI of the right knee and right shoulder on 15 August 2014, Dr Cossetto recommended surgery for Ms Murphy’s knee and conservative treatment for her shoulder.
On 18 August 2014, Ms Murphy saw Dr Miniter, orthopaedic surgeon, at the request of the respondent’s insurer, QBE Workers Compensation (NSW) Ltd (QBE). In his report of that date, Dr Miniter said that the proposed surgery on the right knee should be expedited. He said that the right shoulder did not require surgical treatment and, apart from a very short course of physiotherapy, required no management. (It should be noted that, at that stage, surgery had not been recommended for the shoulder.)
On 27 August 2014, Dr Cossetto wrote to Dr Moe (copy to QBE) stating that the MRI of the right shoulder revealed a significant bursal-sided partial thickness tear of the greater tuberosity footprint that appeared of significant depth, associated with an anteroinferior acromial spur. The MRI scan of the right knee showed a significant medial meniscal tear with marked displacement of a posterior horn segment.
Dr Cossetto advised Ms Murphy to press on with surgery to the right knee. With regard to the right shoulder, he asked her to “press on with a rotator cuff theraband strengthening exercise program”. Once she recovered from the knee surgery, Dr Cossetto said he would “reassess the shoulder which may require arthroscopic surgery if the symptoms don’t respond favourably to conservative treatment measures”.
Dr Cossetto reviewed Ms Murphy on 24 September 2014 and 24 October 2014. At review on 24 October 2014, Dr Cossetto wrote to Dr Moe (copy to QBE) stating that Ms Murphy was recovering well from her recent right knee surgery. However, she continued to take analgesia, predominantly for ongoing significant pain in her right shoulder, which related to a significant bursal-sided deep partial thickness tearing of the rotator cuff supraspinatus tendon portion. In view of her ongoing discomfort, he advised her that she is “now ready to proceed with right shoulder arthroscopic subacromial decompression with rotator cuff repair” and he discussed the risks of the surgery with her.
On 28 October 2014, Dr Cossetto wrote to QBE (by facsimile) outlining the cost of the proposed shoulder surgery, which had been booked for 8 December 2014, and sought approval for it.
In a s 74 notice dated 12 November 2014, QBE disputed liability for the proposed shoulder surgery, relying on Dr Miniter’s report of 18 August 2014. Significantly, QBE did not dispute that Ms Murphy had injured her right shoulder in the fall at work.
On a date not precisely identified in the evidence before the Arbitrator, Ms Murphy suffered a non-work-related fall at a Coles’ supermarket, in which she hurt her right shoulder, lower back and left knee. This fall is referred to in undated notes from Dr Moe, which record:
“stated she had fall in Coles on the other day and hurt her right shoulder (underlying shoulder pain), lower back and left knee.
She was taken to hospital, X rays NAD
stated swelling on right upper chest (perctoralis [sic] muscle) has been better by ice packing.
2 scratches on anterior right chest wall from her finger nails during fall.
O/E: left knee: no reduced ROM but pain on full extension and full flexion.
A bit tender on inferior patella-femoral ligament and lower lateral side of patella.
Right shoulder: more painful than before + more reduced ROM than before.
stated she is going to claim on Coles for her injuries.
also she saw independent doctor for her WC injuries (right shoulder and right knee).
stated arthroscopy for right shoulder has been rejected because independent dr thought
she did not need it. approved more physio.
I haven’t seen the report yet.
Pain management
she is taking endone and tramadol for pain now. Not taking panadol osteo.
Advised to take panadol osteo 2 tds regularly. If not better, add tramadol. If not better, can add endone.
Reason for visit:
injury on injured joint” (emphasis included in original)
On 8 December 2014, Dr Cossetto performed a right shoulder arthroscopic subacromial decompression. There was significant subacromial bursitis with type II acromion noted requiring acromioplasty and a marked supraspinatus tendinopathy with no full thickness tear noted.
On 28 January 2015, Dr Cossetto provided a medicolegal report to Ms Murphy’s solicitors. He said that Ms Murphy had fallen at work on 29 June 2014, injuring her right shoulder, right hip, right knee and right hand. The right hand injury (a haematoma) settled without the need for any formal treatment “leaving Ms Murphy with post traumatic right shoulder subacromial impingement with subacromial bursitis and supraspinatus tendinopathy”, in addition to the injuries to her hip and right knee.
Dr Cossetto said that, given the ongoing severity of Ms Murphy’s right shoulder symptoms, he advised her on 24 October 2014 to proceed with surgery. He added:
“The right shoulder surgery was required in that even up until December, coming up to 6 months post injury, the symptoms in the right shoulder had not responded favourably to conservative treatment based largely on a physiotherapist supervised rehab program for the shoulder girdle and Ms Murphy was quite significantly disabled by the pain.”
In an Application to Resolve a Dispute (the Application) filed in the Commission on 13 February 2015, Ms Murphy claimed $10,000 (later amended to $12,254.47) for hospital and medical expenses in respect of the shoulder surgery. In its Reply, the respondent disputed liability on the grounds set out in its s 74 notice of 12 November 2014.
At the arbitration on 14 May 2015, counsel for the respondent, Mr Callaway, submitted that the fall at Coles was a significant incident. He referred to undated notes from Dr Moe, which had a history of that fall, and recorded that Ms Murphy’s right shoulder was more painful and had a “more reduced ROM” than before the fall. He submitted that the Arbitrator would not be satisfied that it was the work injury that gave rise to the need for the right shoulder surgery.
In an extempore decision, the Arbitrator essentially accepted Mr Callaway’s submissions. She said that she was not satisfied that the surgery was “reasonably necessary in the circumstances” (T1.24). The Commission issued a Certificate of Determination on 26 May 2015 stating (incorrectly) that the “proposed treatment is not reasonably necessary”.
Ms Murphy has appealed the Arbitrator’s determination. In support of her appeal, she seeks to rely on fresh evidence or additional evidence. For the reasons explained below, the application to rely on fresh evidence is refused, but the appeal is successful and the matter must be re-determined before a different Arbitrator.

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

In essence, the issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to determine the medical issue in dispute before her by reference to the medical opinions tendered;
(b)     determining that Ms Murphy had not discharged the onus of proof;
(c)     reversing the onus of proof against Ms Murphy in respect of the significance of the fall at Coles;
(d)     determining in relation to “proposed right shoulder surgery” when Ms Murphy had already had the surgery;
(e)     finding that Ms Murphy had not proved that the non-work-related fall occurred on a date after Dr Cossetto had recommended the shoulder surgery, and
(f)      inferring that the increase in symptoms and reduced range of movement of the right shoulder after the fall at Coles indicated that there had been a change in pathology in the right shoulder when there was insufficient factual basis to draw that inference.
Before dealing with the Arbitrator’s reasons and the grounds of appeal, it is necessary to consider Ms Murphy’s application to rely on fresh evidence.

FRESH EVIDENCE

Ms Murphy seeks to rely on the following fresh evidence or additional evidence on appeal:
(a)     dated clinical notes from Dr Moe, which record that Ms Murphy saw Dr Moe on 18 November 2014 about the fall at Coles;
(b)     a letter from Ms Murphy’s private health fund, HCF, which lists all benefits paid to Ms Murphy between 1 June 2014 and 8 May 2015;
(c)     clinical notes from Shoalhaven Hospital emergency department relating to Ms Murphy’s attendance on 13 November 2014, the day of her fall at Coles, and
(d)     a further statement from Ms Murphy, dated 19 June 2015, with several attachments.
In support of the application to rely on the above material, counsel for Ms Murphy, Mr Stephen Hickey, submitted that the undated notes relied on by the respondent before the Arbitrator had been served in an Application to Admit Late Documents dated 1 May 2015 (just two weeks before the arbitration) and it was not foreseen that the notes would “be appearing in [an] undated format”.
He said that there was no prejudice to the respondent and that it was in the interests of justice that the Commission know the date on which Ms Murphy saw Dr Moe after the fall at Coles, so it could determine, with greater accuracy, the likely range of dates when the fall occurred. He said that his solicitor had contacted Dr Moe’s rooms after the arbitration and, on 15 May 2015, confirmed with the surgery that, because of a computer problem, the notes were printed without dates. That problem has since been rectified.
Dealing with the notes from Shoalhaven Hospital, Mr Hickey said that, subsequent to the arbitration, Ms Murphy contacted the hospital and obtained a copy of the notes relating to her attendance on 13 November 2014. He said that the fall at Coles “was not recalled by [Ms Murphy] as important for her worker’s [sic] compensation proceedings heard at the arbitration as [she] had already been recommended/scheduled for her right shoulder proposed surgery as at the date of the non-work related fall”.
Mr Hickey contended that it was in the interests of justice that the notes be admitted into evidence to clarify the extent of her treatment and to identify the parts of the body treated. The evidence was necessary to clarify the date of the injury at Coles, which was lacking at the arbitration, due to the late service of the undated records of Dr Moe.
Mr Hickey made no submissions in support of the application to rely on Ms Murphy’s further statement.
The admission of fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
As explained by Barrett JA (Macfarlan JA agreeing) in Chep Australia Ltd v Strickland [2013] NSWCA 351, s 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability of the evidence in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary, but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters.
Barrett JA added (at [31]) that, if the first test is not satisfied, that is, if the evidence could, with reasonable diligence, have been obtained and tendered at the arbitration, the second test requires a decision as to the result that “would” emerge if the evidence were taken into account and the result that “would” emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion of the evidence.
The power to admit fresh or additional evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255 per Sackville AJA (Ward JA agreeing) at [66]).
All of the fresh evidence Mr Hickey seeks to tender on appeal was, with reasonable diligence, readily available at the arbitration and there is no satisfactory explanation as to why it was not obtained. That the respondent did not serve Dr Moe’s undated notes until 1 May 2015 does not provide an explanation. Dr Moe produced her notes to the Commission on 13 April 2015 and Ms Murphy’s solicitors were given (first) access to them in the period 16 to 22 April 2015. Thus, they had access to the notes approximately one month before the arbitration. In the circumstances, Ms Murphy has not established the first limb in s 352(6).
It is therefore necessary for her to establish, if the fresh evidence is to be admitted on appeal, that the unavailability of the evidence “would cause a substantial injustice in the case”. For the reasons explained below, I have concluded, without regard to the additional evidence sought to be tendered on appeal, that the Arbitrator erred on a number of material points and that the claim for hospital and medical expenses must be re-determined.
As Ms Murphy seeks to tender further evidence, and the respondent is entitled to respond to that evidence, it is appropriate that the re-determination be conducted at a second arbitration before a different Arbitrator, when both sides will have the opportunity to tender such evidence as they consider necessary. It follows that there is no injustice if the additional evidence is not admitted on appeal and the application to rely on it, on the appeal, is refused.
The legal profession is reminded, yet again, that it will only be in the most exceptional case that a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal or a trial run where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration.

THE ARBITRATOR’S REASONS

The Arbitrator said, at T1.20:
“I observe at the beginning of this decision that [Ms Murphy] bears the onus of proof and for reasons I now will deliver, I have formed the view that I am not satisfied that the surgery that has been performed was reasonably necessary in the circumstances.
The predominant reason I am going to deliver for this denial is based on some treating notes which were obtained through a direction for production to Dr Moe, general practitioner, that had not been addressed in any meaningful way at all by [Ms Murphy]. And if I am asked to exercise my discretion, I will not do that, because the proof is not there.”
The Arbitrator noted that Dr Cossetto had no history of the fall at Coles, which occurred “probably in late October or early November” (T4.19), and said that both counsel agreed it was difficult to work out the date of the fall, though it was after Ms Murphy had seen Dr Miniter. She then quoted the following from Dr Moe’s undated notes, at T4.27:
“[Ms Murphy] had a fall in Coles the other day and hurt her right shoulder, against a background of underlying right shoulder pain. She was taken to hospital.”
The Arbitrator added that the fact that Ms Murphy was taken to hospital indicated that the fall was “not an insignificant event” (T4.32). Dr Moe’s notes added that Ms Murphy had “swelling on her right upper chest … [which] has been better by [sic] ice packing”. Noting Dr Moe’s history that the right shoulder was more painful after the fall, and had a more reduced range of movement, the Arbitrator said that that seemed “to indicate that there has been some pathology that probably has been caused in the fall in Coles, which is significant” (T5.6).
Given that Dr Cossetto had not “been appraised” of any of the history (recorded by Dr Moe about the fall at Coles), and as Ms Murphy carries the onus of proof, the Arbitrator was “not persuaded to grant the orders sought” (T5.14). She said she was “left in the position where [she] did not know the significance of the Coles fall” (T5.15).
The Arbitrator said it was difficult for her to accept Mr Hickey’s submission that the surgery was “already in train” (T5.27) before the fall at Coles, because she was “not appraised of the exact time that the fall in Coles occurred” (T5.29). She concluded, at T6.4, that:
“because I have no evidence from [Ms Murphy] as to what date it was or what date it probably was, and this page 29 cannot be pinned down to a particular date, I am left without any understanding as to the significance or the timing of the fall in Coles.” (The reference to page 29 was a reference to the entry in Dr Moe’s undated notes about the fall at Coles.)

SUBMISSIONS

The appellant’s submissions

Mr Hickey acknowledged that the undated notes from Dr Moe referred to increased right shoulder pain and to a more reduced range of movement in the shoulder, as well as other injuries sustained in the fall at Coles. However, the notes added that Ms Murphy stated, “arthroscopy for right shoulder has been rejected because independent dr [sic] thought she did not need it, approved for more physio.” Therefore, Mr Hickey contended, as he had at the arbitration, that the fall at Coles occurred between 12 November 2014 and 30 November 2014. That is, it occurred after Dr Cossetto had recommended the surgery in his report of 24 October 2014.
Mr Hickey argued that there is no medical evidence as to the ongoing effects, if any, of the fall at Coles. Dr Moe’s notes stated that Ms Murphy had x-rays after that fall, but there is no evidence of what was x-rayed. The notes say “NAD” (no abnormality detected). Whether the fall caused any increase in pain or pathology in the right shoulder is, Mr Hickey submitted, equivocal. He said that it was not for Ms Murphy to prove or disprove the effect, if any, of the fall at Coles. Dr Cossetto supported her case, namely, that the fall at work caused the need for the disputed surgery. He said the onus was on the respondent to prove what effect the fall at Coles had.
Mr Hickey contended that, in the absence of evidence, the Arbitrator went beyond the “available boundary” when she inferred that there had been some pathology caused by the fall at Coles. At most, there was evidence of an increase in symptoms in the right shoulder. How long that increase lasted was not tested.
Mr Hickey submitted that the medical dispute between the parties had crystallised before the fall at Coles and the Arbitrator erred in failing to determine that dispute when, in the absence of evidence as to the effect of that fall, it was open to her to do so.

The respondent’s submissions

Though experienced counsel appeared for the respondent at the arbitration, its solicitor, Ms Tancred, has prepared its submissions on appeal. Ms Tancred submitted that the appeal effectively seeks a reconsideration of the evidence before the Arbitrator. She said that it appears to be based on an assumption that an appeal is available where the analysis and acceptance of certain matters of fact that founded the Arbitrator’s decision was contrary to Ms Murphy’s analysis. She relied on passages in St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 (Wretowska).
Ms Tancred submitted that it was incorrect to suggest that the preponderance of evidence was overwhelmingly contrary to the findings made by the Arbitrator and that, in reaching her conclusions, she gave undue weight to some aspects of the evidence and too little weight to other aspects of the evidence. She said that the Arbitrator was aware that Dr Cossetto had requested approval for surgery prior to the declinature issued by QBE on 12 November 2014.
Ms Tancred also submitted that the Arbitrator acknowledged that Ms Murphy was taken to hospital after the fall at Coles, which occurred after the work injury and before the shoulder surgery. Following the fall at Coles, Ms Murphy gave a history to Dr Moe, noted by the Arbitrator, that the right shoulder was more painful than before and that there was a more reduced range of movement. In her prior consultations with Dr Cossetto and Dr Miniter, Ms Murphy had a full range of movement in her right shoulder.
Relying on the notes from Dr Moe, Ms Tancred submitted that, even before the fall at Coles, there was significant doubt that the right shoulder pathology and subsequent treatment was related to the fall at work. The fact that the medical records indicate Ms Murphy’s range of movement was markedly restricted following the fall at Coles, where no such findings were recorded previously, was significant.
Ms Tancred said that the lack of evidence from Ms Murphy addressing the discrepancy in Dr Moe’s clinical notes was a matter the Arbitrator could fairly consider in the context of all the evidence available. She contended that it was open to the Arbitrator to conclude that the surgery was not reasonably necessary medical treatment in respect of the injury on 29 June 2014. Independent of the information about the fall at Coles, Ms Tancred submitted that the medical evidence indicates that, logically, a different outcome could not be reached. She said that the event at Coles merely highlights the fact that Ms Murphy’s shoulder symptoms were not indicative of a pathology related to any direct trauma occurring in the work injury on 29 June 2014.
Ms Tancred noted that Dr Cossetto did not address causation with respect to the right shoulder pathology generally and that Dr Miniter noted that there was no evidence of acute injury to the shoulder related to the incident on 29 June 2014.
Last, Ms Tancred submitted that the medical evidence before the Arbitrator demonstrated, on the balance of probabilities, that the right shoulder pathology that caused Ms Murphy to have the surgery was not related to the work injury on 29 June 2014.

DISCUSSION AND FINDINGS

The Arbitrator erred in her approach.
It was surprising that, at the arbitration, Ms Murphy gave no evidence about the effect the fall at Coles had on her shoulder. However, on its own, that did not provide a proper basis for rejecting the claim. The issue was whether the shoulder surgery performed on 8 December 2014 was reasonably necessary as a result of the work injury on 29 June 2014. That required an analysis of the evidence from Dr Cossetto and Dr Miniter. Because of her mistaken view about the potential significance of the fall at Coles, the Arbitrator did not properly analyse that evidence.
The Arbitrator erred in saying that both counsel agreed that it was difficult to work out the date of the fall at Coles. Mr Hickey submitted (at T15.8) that the relevant consultation with Dr Moe, upon which Mr Callaway placed so much weight, was between 12 November 2014 and 30 November 2014. That submission was based on the fact that the s 74 notice disputing liability is dated 12 November 2014, that the denial of liability is discussed in Dr Moe’s undated note, that there is no evidence that Ms Murphy became aware of the denial before receiving the letter, and that Dr Moe’s note states that the fall occurred “the other day”. Mr Hickey’s submission was correct and the Arbitrator erred in not accepting it, even without direct evidence from Ms Murphy on the point.
It follows from the analysis in the preceding paragraph that the fall almost certainly occurred in about mid November 2014, that is, well after Dr Cossetto had recommended the surgery in his report of 24 October 2014. In other words, on the evidence before the Arbitrator, the fall at Coles did not provide a proper basis for the Arbitrator to reject the claim. Because of when it occurred, the fall at Coles could not have played a part in Dr Cossetto’s opinion that the surgery was reasonably necessary as a result of the work injury. It was therefore not determinative that Dr Cossetto did not have a history of it.
The Arbitrator’s statement that there was some pathology present, which was “probably” caused by the fall at Coles, was entirely speculative. More importantly, even if the fall at Coles caused some additional pathology in the shoulder, and there is no evidence that it did, there is no evidence the surgery was required because of that additional pathology. The surgery Dr Cossetto recommended in October 2014, subacromial decompression with rotator cuff repair, was exactly the surgery he performed. He recommended that surgery because of the injury sustained in the work fall in June 2014 and because of continuing symptoms and the failure of conservative treatment. Thus, on the evidence presented at the arbitration, it cannot be said that surgery resulted from the fall at Coles.
Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).
The above analysis is sufficient to dispose of the appeal. For completeness, I will deal with Ms Tancred’s submissions.
Ms Tancred’s submission that the appeal effectively seeks a reconsideration of the evidence before the Arbitrator is incorrect. Mr Hickey has argued that the Arbitrator erred in her approach to the significance of the fall at Coles. For the reasons explained above, that submission was correct.
Ms Tancred’s reliance on Wretowska is misplaced. That case concerned a challenge to an Arbitrator’s evaluative judgment as to the reasonableness of an employer’s actions in the context of s 11A of the 1987 Act. The authorities and issues discussed in that case have no application to the present appeal, which concerns an assessment of expert evidence in a claim for hospital and medical expenses under s 60 of the 1987 Act.
The submission that it was incorrect to suggest that the preponderance of evidence was overwhelmingly contrary to the findings made by the Arbitrator is based on the false assumption that that was Mr Hickey’s submission. It clearly was not. Mr Hickey argued that the Arbitrator erred in not properly considering the evidence of Dr Cossetto and Dr Miniter on the issue in dispute, and in giving undue weight to Dr Moe’s undated note about the fall at Coles.
The submission that the Arbitrator was aware that Dr Cossetto had requested approval for the surgery prior to the s 74 notice on 12 November 2014 misses the point. The issue that concerned the Arbitrator was when the fall at Coles occurred. On that issue the Arbitrator said that it was “difficult” for her to accept Mr Hickey’s submission that the surgery was “already in train” before the fall at Coles. That statement was a clear rejection of Mr Hickey’s submissions that the fall had to have occurred after 12 November 2014. For the reasons explained above, the Arbitrator erred in rejecting that submission and in finding that the fall at Coles could not be “pinned down to a particular date”. The evidence established, with reasonable certainty, that the fall at Coles occurred after 12 November 2014.
The submission that, as a result of the fall at Coles, Ms Murphy had more pain in her shoulder and a more reduced range of movement does not advance the respondent’s position. That is because, based on his clinical examination, the findings in the MRI scan, and, significantly, Ms Murphy’s failure to respond to conservative treatment, Dr Cossetto had already recommended the surgery before the fall at Coles.
Ms Tancred’s next submission, that even before the fall at Coles there was doubt that the right shoulder pathology was related to the work incident, goes (partly) to the issue in dispute and involves an assessment of the competing views of Dr Cossetto and Dr Miniter. That issue must be determined at a second arbitration. I note in passing that the fact that Ms Murphy had a restricted range of movement after the fall at Coles is of limited weight. That is because Dr Cossetto did not recommend the surgery based on Ms Murphy’s range of movement. He did so because of the matters noted in the preceding paragraph. It should be further noted that, to succeed, Ms Murphy only has to prove that the surgery was reasonably necessary as a result of that injury. That question must be determined by applying the authorities noted at [57]–[58] above.
I do not accept the submission that, independent of the information about the fall at Coles, a different outcome could not be reached. Clearly, if Dr Cossetto’s evidence is accepted, the result will be different. The Arbitrator did not accept Dr Cossetto’s evidence because of her incorrect view of the significance of the fall at Coles. The relevance of the submission that the event at Coles highlights the fact that Ms Murphy’s shoulder symptoms were not indicative of a pathology related to any direct trauma occurring in the work injury is difficult to follow, but is a matter that, if it is pressed, can be considered at the next arbitration.
The relevance of the submission that Dr Cossetto did not address causation with respect to the right shoulder pathology generally is unclear. As I have stated, the issue is whether the surgery was reasonably necessary as a result of the work injury. Dr Cossetto addressed that issue, though he did not use the exact words of the legislation. Whether his evidence should be accepted over Dr Miniter’s evidence must be determined at the next arbitration.
The submission that Dr Miniter noted that there was no evidence of an acute injury to the shoulder seems to suggest that Ms Murphy did not injure her shoulder at work on 29 June 2014. Such a submission is not open. The s 74 notice did not dispute that Ms Murphy injured her shoulder, but merely disputed that the (then) proposed surgery was not reasonably necessary as a result of the injury. It is therefore not open to contend that Ms Murphy did not injure her shoulder.

CONCLUSION

For the reasons stated above, the Arbitrator erred in rejecting Ms Murphy’s claim because of the fall at Coles and erred in failing to properly consider and determine the issue in dispute. The matter must be re-determined before a different Arbitrator. At that re-determination, the parties will be at liberty to tender such evidence as is appropriate for the proper determination of the dispute. That will require the next Arbitrator to set a timetable for the filing and service of that evidence.

DECISION

The appellant worker’s application to rely on fresh evidence or additional evidence on appeal is refused.
The Arbitrator’s determination of 26 May 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.

Bill Roche
Deputy President

24 August 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.

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