NSW Rural Fire Service v Sargent

[2008] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		NSW Rural Fire Service v Sargent [2008] NSWWCCPD 68
APPELLANT:		NSW Rural Fire Service
RESPONDENT:		Raylene Sargent
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		WCC9648-07
DATE OF ARBITRATOR’S DECISION:		6 March 2008
DATE OF APPEAL DECISION:		30 June 2008
SUBJECT MATTER OF DECISION:		Section 9A of the Workers Compensation Act 1987; substantial contributing factor; whether Arbitrator applied the correct test.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Hicksons Lawyers
Respondent:		Marsdens Law Group
ORDERS MADE ON APPEAL:		The Arbitrator’s determination dated 6 March 2008 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Raylene Sargent (‘the Respondent Worker/Ms Sargent’) started work for the NSW Rural Fire Service (‘the Appellant Employer/the Fire Service’) in July 2001.  In March 2006, she was transferred to the position of Aviation Business Officer at Homebush Bay where her duties involved processing invoices and entering information into the database.  She developed pain in her right shoulder in December 2006 and then in her left shoulder in late January or early February 2007.  After various periods on selected duties, she ceased work on or about 3 September 2007 and has not returned.  The Fire Service initially accepted the claim, but ultimately denied liability in a notice dated 8 August 2007.

1. In an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 17 December 2007, Ms Sargent claimed weekly compensation from 3 September 2007 to date and continuing together with hospital and medical expenses. 

1. A Commission Arbitrator heard Ms Sargent’s claim in an arbitration on 26 February 2008 and found in her favour in a reserved decision delivered on 6 March 2008.  By an appeal filed on 3 April 2008, the Fire Service seeks leave to appeal the Arbitrator’s decision.  The essential ground of appeal is that the Arbitrator erred in finding that Ms Sargent’s employment had been a substantial contributing factor to her injury or injuries.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. It is not disputed that the thresholds in section 352(2) are satisfied.

Time

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

1. I grant leave to appeal.

ON THE PAPERS REVIEW

1. 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.”

1. Ms Sargent argues that the appeal cannot be dealt with on the papers because the Fire Service has not properly identified the grounds of appeal on which it relies and its submissions are “wide ranging and deceptive by way of selective quoting of passages of the decision and authorities”. 

1. I agree that the Appellant Employer has not properly identified the grounds of appeal, as required by Practice Direction No 6 issued by the Commission on 15 November 2007, and that its submissions are wide-ranging and selective.  Whilst this is most unsatisfactory, and should not happen, I believe that I am in a position, having regard to all the material that is before me, to properly and fairly determine the appeal without an oral hearing.

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me 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 DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 6 March 2008, records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant weekly benefits compensation pursuant to Section 38 of the Worker’s Compensation Act 1987 in the amount of $1,228.98 per week from 3 September 2007 to 2 March 2008 and thereafter at the weekly rate of $983.18 in accordance with Section 38 (3)(A).

2.   That the Respondent pay the Applicant’s reasonable medical and related expenses as incurred under s60 of the Act on production of accounts and/or receipts.

3.   That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)failing to properly consider whether Ms Sargent’s employment was a substantial contributing factor to her injuries as required under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’);

(b)failing to inform himself of the nature of the work performed and instead relied on histories set out in medical reports which were solely based on Ms Sargent’s version of her duties;

(c)failing to make any findings as to the nature of the work performed by Ms Sargent;

(d)failing to give adequate reasons for his views as to the work performed;

(e)failing to give reasons or adequate reasons for his conclusion that Ms Sargent’s employment was a substantial contributing factor to her injuries, and

(f)using an absence of evidence to support a finding that Ms Sargent’s employment was a substantial contributing factor to her injury.

REVIEW

1. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

1. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’).  To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).

1. The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 where Spigelman CJ said at [28] and [30]:

“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.

30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

1. I intend to apply the above principles in the matter before me.

SUBMISSIONS EVIDENCE AND DISCUSSION

1. The Fire Service submits:

(a)Ms Sargent has failed to discharge the onus of proving that her employment was a substantial contributing factor to her injuries;

(b)Ms Sargent’s duties were light clerical tasks that were neither extensive nor repetitive.  The duties provided ample opportunity for the rotation of tasks and Ms Sargent sought to distort the Arbitrator’s understanding of her duties by simply quoting the number of pages upon which certain data existed, which gave no assistance as to the nature of the work being performed. Few keystrokes were involved per page of data entry;

(c)the Arbitrator’s reference at paragraph 30 of his Statement of Reasons for Decision (‘Reasons’) to the history taken by Dr Maloney is not a substitute for him forming his own views as to the type of work Ms Sargent performed;

(d)the Arbitrator failed to inform himself of the nature of the work performed and instead relied on histories set out in medical reports which were based solely on Ms Sargent’s version of her duties.  Her version of her duties was disputed and the Arbitrator failed to make any findings as to the nature of the work performed;

(e)if the Arbitrator did form a view as to the work performed, he did not give adequate reasons for his views;

(f)no or no adequate reasons were provided for the conclusion that Ms Sargent’s employment was a substantial contributing factor to her injuries;

(g)the Arbitrator’s Reasons at paragraph 34 highlight the Arbitrator’s failure to make appropriate findings of fact upon which to base his conclusion regarding section 9A;

(h)the Arbitrator’s findings that work contributed to the injury and that Ms Sargent was in the course of her employment do not together add to a conclusion that work was a substantial contributing factor;

(i)an absence of evidence cannot be used to support a finding that work was a substantial contributing factor;

(j)in Nowra Truck & Farm Equipment Holdings P/L & Brunning Investments P/L & Nubley Bros Service P/L t/as Banoon Pastoral Co v Akers [2005] NSWWCCPD 60 (‘Akers’), ADP Moore held (at [41]) that a physical act may only be temporally linked to an injury, rather than causally linked and the mere absence of any other identifiable act does not lead to the inference that the physical act must therefore be a substantial contributing factor;

(k)the Arbitrator selectively quoted Dr Maloney’s views without reference to the context of his opinion, namely, that there was no adequate explanation for the onset and severity of Ms Sargent’s symptoms.  Dr Maloney’s conclusions were directly contrary to the Arbitrator’s decision;

(l)in State Transit Authority of NSW v Bailey [2005] NSWWCCPD 84 (‘Bailey’) it was held (at [42] and [43]) that a doctor’s opinion that there is only a mild or minor contribution from the employment cannot be used to support a conclusion that employment is a substantial contributing factor, and

(m)the Arbitrator applied the “but for” test of causation (at paragraph 34 of his Reasons) and this represents a reversal of the section 9A onus which requires the worker to demonstrate that employment is a substantial contributing factor.

1. This appeal must be considered in the context of the case the Fire Service presented at the arbitration.  In respect of the claim for the right shoulder, counsel for the Fire Service submitted, at T27.14:

“In that regard, you may find for the applicant in respect of the right arm. I don’t make great submissions on that point. I would find it difficult to cavil with the fact that she may have an entitlement to that. That’s your decision.”

1. He then concluded, at T27.19:

“But what I do say is you would not, given the circumstances of this case, find for the applicant in respect of complaints to her left arm, which we say employment was not a substantial contributing factor to any alleged injury. Now, unless I can assist you further, those are my submissions.”

1. The Arbitrator gave counsel for the Fire Service leave to cross-examine Ms Sargent.  The cross-examination mainly focused on when she developed symptoms in her left shoulder and the nature of her restricted duties.  On the question of the restricted duties, Ms Sargent was asked, starting at T5.43:

“COUNSEL: Q. Isn’t it the case that you were given restricted duties or a certificate to that effect?
A. Yep, I was on restricted duty --

Q. Yep.
A. -- but my work was not modified. I was still doing exactly the same work that I’d been doing all the time.

Q. And the reason for that was what?
A. That alternative duties were not given.

Q. All right. So you say that you were doing --
A. It’s --

Q. Just let me ask the question, sorry, if you wouldn’t mind. You say, do you, that you were doing the same work even though you were provided with certification for restricted duties?
A. Yes.”

1. In respect of her duties in general, she was asked the following questions, starting at T7.14:

“Q. Okay. The duties that you performed in terms of data entry, I guess, and invoices - is that fair to say, that was the task?
A. Yep.

Q. Manually based, operating calculators and computers?
A. They were all computer based.
Q. All computer based?
A. Yes.

Q. Including the calculator on the side?
A. Yep.
Q. And the processing of the work would vary according to the needs of the situation. So, in other words, during peak season, bushfire season, the job is busier?
A. Yeah, it actually - yeah, it kicked off from the September, I think it was that we got fairly busy.

Q. Okay. The rate of invoices and the amount of data on each invoice would vary, I assume. Is that correct?
A. From – there’s two data screens that I would actually input into, and it would depend as to whether there was one line of data on one sheet or whether there was 10 --

Q. Yep.
A. -- on the one sheet.

Q. Okay. And, so, because of the variances, you would either work at a very swift pace, I’d imagine, and sometimes you could lay back a little bit --

A. Must do this all the time.

Q. -- and ease off?
A. Actually, at one stage I had three filing trays, which were four inches high, or whatever they are, overflowing --

Q. Right.
A. -- with invoices that needed to be processed, and we’re talking millions of dollars worth of accounts --

Q. Right.
A. -- that couldn’t just sit there; they had to get done.

Q. So, on Wednesday, 6 December ‘06, when you start to - and I’m addressing paragraph 12 of your statement - you say:

During the course of the day, I started to experience dull pain radiating down my right shoulder when I was stamping the invoices.

A. Yes.

Q. Is that a manual stamp, is it?
A. Yes, a stamp to say that I had processed the invoice and a stamp also for my manager to sign off on.

Q. Right. And are you the only person doing that job?
A. I was at that stage, yes.

Q. Are there other people now doing that work?
A. Yes.
Q. Okay. Were you given assistance to do that stamping work?
A. No.”

1. Dealing with the Appellant Employer’s submissions, I make the following findings and observations.  The proposition that Ms Sargent’s duties were light clerical tasks that were neither extensive nor repetitive was raised in a letter from Derrick Oliver, Acting Director Staff Services, to Hicksons dated 14 January 2008, where he asserted, among other things, that “an analysis of a typical invoice indicates that the data entry required is minimal”.  However, the specific matters raised in Mr Oliver’s letter were not put to Ms Sargent and were not the subject of any relevant submissions.  Nor was it argued that Ms Sargent had not suffered any injury to her shoulders arising out of or in the course of her employment.  In these circumstances, it is not open to the Fire Service to raise these matters for the first time on appeal (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Water Board v Moustakas (1988) 180 CLR 491 and University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483).

1. In any event, even if it were appropriate to allow this argument to be raised for the first time on appeal, I would have no hesitation in rejecting it.  Whether Ms Sargent’s injuries resulted from her duties was a matter for expert evidence and it was this evidence on which the Arbitrator primarily relied to support his conclusions.  Mr Oliver’s assertions as to the requirements of Ms Sargent’s duties were never put to or considered by any of the expert witnesses in the case and, in these circumstances, are of little, if any, probative value in the overall assessment of the claim.  Moreover, the argument that few keystrokes were involved per invoice ignores the fact that Ms Sargent’s duties involved other repetitive activities, such as using a manual stamp (T8.13). 

1. The submission that the Arbitrator failed to inform himself of the nature of the work Ms Sargent performed but instead relied on histories set out in the medical reports is incorrect and misconceived. 

1. The Arbitrator referred in detail to the evidence as to “the contracting of the injuries” at paragraphs 8 to 20 inclusive of his Reasons, which included a detailed summary of Ms Sargent’s evidence as to the nature of her duties.  He did not, “fail to inform himself of the nature of the work performed”, as has been argued, and his conclusions clearly indicate that he accepted Ms Sargent’s evidence as to her duties and the onset of her symptoms.  Given the limited cross-examination about her duties, and the fact that the cross-examination elicited responses that totally support Ms Sargent’s claim, the Arbitrator’s conclusion was open to him and discloses no error.  He also accepted Ms Sargent’s evidence that the work she did following the onset of symptoms in her right shoulder in December 2006 was “substantially the same work” as she did before that date (Reasons, paragraph 29).  That finding was consistent with the evidence and I agree with it.

1. The Arbitrator did not merely refer to Dr Maloney’s history to determine the nature of Ms Sargent’s duties, as has been submitted on appeal.  He referred to Ms Sargent’s evidence in detail at paragraphs 8 to 20 of his Reasons.  After referring to the medical evidence at paragraphs 21 to 29 inclusive, the Arbitrator turned to consider the question of whether Ms Sargent sustained an injury to her right and/or left shoulder arising out of or in the course of her employment (‘the injury issue’, referred to by the Arbitrator as the “First Issue”).  In this context, he said at paragraph 30:

“I accept the medical evidence that the nature of the Applicant’s employment activities described by Dr Maloney as ‘extensive keying activities’ in December 2006 produced the symptoms to the right shoulder.  I accept the evidence of the Applicant that her work activities being undertaken at the time of commencement of symptoms to the left shoulder were the same activities as existed at the time as symptoms in the right shoulder developed.”

1. The Arbitrator did not base his conclusion (on the injury issue) solely, or even mainly, on Dr Maloney’s history of Ms Sargent’s duties, but relied on Ms Sargent’s evidence and the evidence of Dr Endrey-Walder, Professor Murral, Dr Ireland, and on Dr Maloney’s opinion on causation. In respect of Dr Maloney’s evidence, the Arbitrator did no more than note that the doctor described Ms Sargent’s duties as involving “extensive keying activities”. That observation was correct. Dr Maloney also noted, consistent with Ms Sargent’s evidence, that at the time Ms Sargent was working at Homebush she was “very busy at work processing invoices” (Dr Maloney’s report 3 August 2007, page one). As I have noted at [24] above, the “processing” of invoices involved more than just extensive keying. At paragraph 29 under the subheading “First Issue”, the Arbitrator said:

“The Applicant’s evidence that those symptoms developed at work and were contributed to by her work is supported by the opinions of Dr Endrey-Walder, Prof. Murral and Dr Ireland. It is also important that the opinion of Dr Maloney, qualified by the Respondent, is that ‘one cannot deny that the extensive keying activities of December 2006 could well have produced the symptoms and such activities were basically the cause of the shoulder complaints.  Reducing them could well result in improvement but such has not occurred and in fact in April similar changes have presented in the left shoulder.’  Dr Maloney’s comments support the conclusion that the work she was doing during her employment caused the condition in both shoulders.”

1. This conclusion was open on the evidence and I agree with it.  Whilst I think it would have been more accurate to described Dr Maloney’s opinion as supporting a conclusion that the work made a mild contribution to the condition, this difference is of no consequence as it is taken up in the next part of the Arbitrator’s decision dealing with whether the employment was a substantial contributing factor to the injury. 

1. I do not accept that the Arbitrator failed to give adequate reasons for his conclusions about Ms Sargent’s duties or about the section 9A issue. The Fire Service referred to no authorities in support of this submission.

1. To succeed in having the decision set aside on this ground the Fire Service must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).

1. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).

1. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:

“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”

1. The Arbitrator identified the essential grounds for his conclusions.  He accepted Ms Sargent’s evidence that her symptoms developed at work, and her medical case (referred to in more detail below).  Reading his decision as a whole, it is also clear beyond doubt that he also accepted Ms Sargent’s evidence as to the nature of her duties and that her shoulder injuries arose out of or in the course of her employment with the Fire Service.  Given the way the Fire Service presented its case, and for the reasons noted earlier in this decision, it is of no consequence that he made no express reference to Mr Oliver’s evidence.

1. I do not accept the submission that paragraph 34 of the Arbitrator’s Reasons highlights his failure to make appropriate findings of fact upon which to base his conclusion regarding whether Ms Sargent’s employment was a substantial contributing factor to her injury.  In dealing with the 9A issue the Arbitrator referred to and applied the principles set out in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; (2000) 48 NSWLR 740 (‘Mercer’) at [22] where Mason P said:

“The worker correctly submits that the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in subsections (2) and (3) of s9A.”

1. The Arbitrator also correctly observed that proof that the worker was in the course of his or her employment at the time of injury is insufficient to satisfy the test in section 9A (Reasons, paragraph 34; McMahon v Lagana [2004] NSWCA 164 at [33] (‘McMahon’)) and that the ultimate question is one of fact and is a matter of impression and degree (Department of Corrective Services v Clifton [2006] NSWWCCPD 310 and Dayton v Coles SupermarketsPty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 (‘Dayton’) (Reasons, paragraph 34). 

1. The Arbitrator then considered each of the subsections in section 9A(2) in turn and said:

“(a)‘The time and place of injury’, I find that the injury occurred during the Applicant’s normal working hours and at the place of employment, and

(b)‘The Nature of the Work Performed and the Particular Tasks of that Work’, the Applicant was employed in data processing involving the keying in of significant amounts of data and stamping of invoices.  It is this activity that has been identified as contributing to the injury and I have found that the Applicant was in the course of her employment when she was injured and was clearly doing work incidental to employment at the time of injury.

(c)         ‘The Duration of Employment’.  The evidence of the Applicant is that the employment where she was keying in data entry commenced some months prior to the initial complaint to the right shoulder and the same work continued after that injury was diagnosed and leading to the development of symptoms in the left shoulder.

(d)‘The probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker’s life, had he or she not been at work or had not worked in that employment’.  Apart from a reference from Dr Maloney to such injuries occurring spontaneously albeit with some trauma, there is no evidence that the injuries would have happened anyway at or about the same time or about the same stage of the worker’s life.  The Respondent referred to a prior diagnosis that the Applicant had suffered from De Quervains disease many years before and that this may give rise to a predisposition.  However, there is no evidence of any link or any predisposition and indeed the evidence is that there is no prior symptomatology or underlying condition.  In the absence of any evidence as to how the injury could have happened in any other way or at any other time or place, I must come to the conclusion that the injuries were caused by the work activities. 

(e)‘The worker’s state of health before the injury and the existence of any hereditary factors’, there is no evidence that the injuries occurred because of the Applicant’s health in general or any underlying or existing hereditary factors.

(f)‘The worker’s lifestyle and his or her activities outside the workplace’.  There is no evidence that the Applicant’s lifestyle was a factor in the injuries.” (emphasis added)

1. The Arbitrator concluded that:

“Ms Sargent’s injuries were caused by the keying data entry and stamping that she was required to do in her workplace.  There is no evidence that but for her employment she would have sustained the injuries to her shoulders.  The medical evidence all supports finding that the employment contributed to the injury.  Dr Maloney says it was mild, however, Dr Markarious and Dr. Andrew Walter [sic, Dr Endrey-Walder] state it was substantial.  Having made the findings I have above and noting that there is no evidence of any other contribution to the injuries, in these circumstances it is my view that the employment was a substantial contributing factor to the injuries.”

1. The Arbitrator’s Reasons dealing with section 9A(2)(d) disclose a number of inaccuracies. Though the Appellant Employer has not identified them, it is appropriate that I deal with them. The Arbitrator’s reference to Dr Maloney stating that such injuries can occur “spontaneously albeit with some trauma” was inaccurate. Dr Maloney actually said, when referring to the imaging of Ms Sargent’s shoulder showing “mild to moderate dorsal thickening”, that “such changes can occur spontaneously and after reasonably mild physical trauma” (emphasis added) (Dr Maloney 3 August 2007, page two).  In addition, Dr Maloney said, “presentations of this nature are not uncommonly seen in middle aged persons possibly more so in females and in those of excess weight” (Dr Maloney 9 July 2007, Summary Report, page three).  Ms Sargent was born in 1967 and weighs 120 kg (see Dr Endrey-Walder’s report of 4 September 2007, page five).  Dr Maloney then added at page two of his 6 October 2007 report that, “We know that such pathology is not infrequently seen in persons of her age and her physical status”.  In light of this evidence, it was not entirely accurate to say that there was no evidence of any “predisposition” or an absence of evidence as to how the injury could have happened in any other way.

1. However, I do not believe the inaccuracies referred to at paragraph [39] above lead to a different conclusion to that reached by the Arbitrator.  Whilst Dr Maloney referred to the fact that Ms Sargent’s pathology is “not infrequently” seen in persons of her age and physical status, he stopped well short of saying that it was probable, or even likely, that the injury or a similar injury would have happened anyway at about the same time or at the same stage of Ms Sargent’s life, had she not been at work with the Fire Service.  To the extent that Dr Maloney considered Ms Sargent’s circumstances, he concluded that her shoulder problems did “relate” to the nature and conditions of her employment, but only “mildly”, or, as he later explained, not to a significant degree. Dr Maloney did not explain to what extent the injury related to other factors, a point noted by Dr Endrey-Walder and considered below at paragraph [55]. In these circumstances, I believe the Arbitrator’s ultimate conclusion was correct and that Dr Maloney’s evidence, when considered with all of the evidence in the case, did not establish that it was probable, or even likely, that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker’s life, had she not worked with the Fire Service.

1. The remainder of the Arbitrator’s findings under section 9A(2) are supported by the evidence and I agree with them. Whilst counsel for the Fire Service referred to the fact that Ms Sargent had “an injury of a repetitive nature [de Quervain’s tenosynovitis] many years prior to this” (T25.29), there is no evidence that her current shoulder condition is related to that condition.

1. The Arbitrator did not find, as has been submitted by the Appellant Employer, that section 9A is satisfied by finding that work contributed to the injury and that Ms Sargent was in the course of her employment. He correctly acknowledged that the test under section 9A is a separate and distinct test to the injury test in section 4. Having found “injury” under section 4, he then considered whether Ms Sargent’s employment had been a substantial contributing factor to her injury within the terms of section 9A. In making that determination the question of whether a worker is performing positive employment duties when the injury occurs may be relevant, but is certainly not determinative, of whether the employment was a substantial contributing factor to the injury (Hodgson JA in McMahon at [35]). Subject to the inaccuracies identified above at paragraph [39], the Arbitrator’s analysis was appropriate and consistent with the evidence and the authorities.

1. The submission that an absence of evidence cannot be used to support a finding that work was a substantial contributing factor misunderstands and misrepresents the nature of the Arbitrator’s findings. He did not rely on an absence of evidence to support his conclusion that Ms Sargent’s employment with the Fire Service was a substantial contributing factor to her injury. In dealing with the matters listed in section 9A(2), the Arbitrator correctly observed that there was no evidence of any “prior symptomatology or underlying condition”. The Arbitrator made positive findings, based on all the evidence, that Ms Sargent’s employment was a substantial contributing factor to her injuries.

1. The Arbitrator also found that there was no probability that the injury would have happened anyway at about the same time. For the reasons I have set out at paragraph [40] above, I agree with that conclusion. He did not use the “absence of evidence” to determine the primary issue of whether Ms Sargent’s employment had been a substantial contributing factor to her injury. The matters set out in section 9A(2) are merely examples of the matters to be taken into account for the purpose of determining whether a worker’s employment was a substantial contributing factor to the injury. No one factor in section 9A(2) is determinative, either in favour of or against a worker. All matters must be considered and weighed with the evidence to determine whether, as a question of fact, the employment concerned was a substantial contributing factor. That is what the Arbitrator did and his conclusion is sound. I agree with it.

1. The authority of Akers does not assist the Fire Service. In that case the worker suffered a fatal heart attack at work, but there was no evidence of the nature of the worker’s activities at the time he developed symptoms. The Acting Deputy President determined that it was a reasonable inference that some physical effort had been required by the worker to start an engine, and, whilst such a “physical act” may support a temporal connection with an injury, it did not necessarily contribute to the injury within the meaning of section 9A. She added, quite correctly, that the mere absence of any other identifiable act does not lead to the inference that the identified physical act must therefore be a substantial contributing factor.

1. In the present matter, unlike Akers, there is a large body of persuasive expert evidence, which the Arbitrator accepted, that supports a clear connection between the employment and the injury. It is appropriate to remember that section 9A requires that the employment concerned be “a” substantial contributing factor to the injury, not “the” substantial contributing factor. The test in the section is clearly satisfied in the present matter because the evidence the Arbitrator accepted establishs that the employment was the cause of the injuries, even if Ms Sargent was, because of her age and weight, a person in the category where the pathology is “not infrequently seen”.

1. I do not agree that the Arbitrator selectively quoted from Dr Maloney’s reports without reference to the context in which he gave his opinion.  Dr Maloney’s evidence provided Ms Sargent with some support on the injury issue and the Arbitrator did not err in referring to it.  At page seven of his report of 9 July 2007, Dr Maloney said:

“I feel that it can be reasonably stated that Mrs Sargent’s shoulder problems relate but mildly to the nature and conditions of her employment.” (emphasis added)

1. In clarification of this opinion, the doctor said at page two of his report of 3 August 2007 that “her employment did not represent a substantial contributing factor but it was a relatively mild contributing factor” (emphasis included in original).  He seemed to suggest at page two of his 6 October 2007 report that the condition was attributable to the work to a degree, but not a significant degree.

1. However, in his report of 3 August 2007, Dr Maloney concluded at page two, after stating that such changes as found in Ms Sargent’s shoulders can occur spontaneously:

“One cannot deny that the extensive keying activities in December 2006 could well have produced such bursal symptoms and such activities were basically the cause of the shoulder complaints.  Reducing them could well result in improvement but such has not occurred and in fact in April, similar changes have presented in the left shoulder.  It is now the more dominant problems.” (emphasis added)

1. At page two of his report of 6 October 2007, prepared after Dr Maloney read Dr Endrey-Walder’s report of 4 September 2007, Dr Maloney said:

“I do not feel she should endeavour to return to pre-injury duties for these would be likely to result in aggravation of the underlying pathology and hence the return of disability.”

1. Given the above evidence from Dr Maloney, the Appellant Employer’s submission that “According to Dr Maloney’s summary, the development of the worker’s conditions on both sides came on ‘without specific injury, work related or otherwise’” (see Dr Maloney’s Summary Report, 9 July 2007, page one), is misleading and unhelpful.  Quite clearly, the doctor’s opinion dealt with several issues and involved significant relevant concessions on the injury issue.  The Arbitrator was entitled to take those concessions into account and he did so.

1. The Respondent Worker submits, and I agree, that it was open to the Arbitrator to rely on these parts of Dr Maloney’s evidence in his overall assessment of the claim.  The Arbitrator concluded that Dr Maloney is “clearly of the view that there is a link between the work activity and the injuries” (emphasis added) (Reasons, paragraph 29). The evidence supports that conclusion and I agree with it. However, it is the strength of that causal link that is in issue when one comes to consider section 9A (Mercer at [17] and Giles JA in Dayton at [22]). The Arbitrator was not considering the substantial contributing factor issue at paragraph 29, but merely whether the injury arose out of or in the cause of the employment. At paragraph 34 the Arbitrator correctly recorded that Dr Maloney felt the employment contribution to the injury was only “mild”, but Drs Markarious and Endrey-Walder concluded that it was substantial. Having regard to the fact that there is no persuasive evidence of any other cause, the Arbitrator’s conclusion was, for the reasons given in this decision, open to him and I agree with it.

1. It follows, for the reasons set out at [52] above, that I do not accept the Appellant Employer’s submission that the Arbitrator purported to adopt Dr Maloney’s opinion as supporting his ultimate conclusion when the doctor’s evidence was contrary to that conclusion. Dr Maloney’s opinion did support a connection between the injuries and the employment, but it was the strength of that connection that the doctor questioned. On that issue the Arbitrator accepted other evidence.

1. The Appellant Employer’s submission that a doctor’s opinion that there is only a mild or minor contribution from the employment cannot be used to support a conclusion that employment is a substantial contributing factor to the injury may well be correct in certain situations, but much will depend on the nature of the claim involved.  For example, in Cant v Catholic Schools Office (2000) 20 NSWCCR 88 it was held that in a claim alleging an injury in the nature of an aggravation of a pre-existing disease, the worker has to establish that the employment was a substantial contributing factor to the aggravation, not to the overall evolution of the disease. However, the Arbitrator did not base his decision on the disease provisions. Nor did he base his conclusion about section 9A on Dr Maloney’s evidence, which he expressly noted only assessed the employment contribution to be “mild”. He relied on Ms Sargent’s evidence together with the persuasive evidence of Dr Markarious and Dr Endrey-Walder. That evidence, in the circumstances of the present matter, clearly supports the Arbitrator’s conclusion.

1. It is appropriate to consider that evidence in detail.  Dr Endrey-Walder’s evidence is that Ms Sargent developed subacromial bursitis in her right shoulder as a direct consequence of the nature and conditions of her employment over some months prior to the onset of symptoms in early December 2006 (Dr Endrey-Walder 4 September 2007, page six).  He added (at page six) that on account of her significant symptoms in the right shoulder she developed an identical problem on the left side “due to overloading that arm in the course of her daily work”.  In his opinion, there was no pre-existing or underlying condition that could be incriminated for the onset of her significant symptoms.  He added, in reference to Dr Maloney’s opinion that employment was only a “mild” contributing factor:

“Given the lack of any history of pre-existing shoulder related difficulties, total lack of history of any previous specific injury to the shoulder girdles, and given that sophisticated MRI scans identified nothing but the bilateral subacromial bursitis, I am not certain as to what other condition Dr Maloney may be able to refer to, if the work activity was only a ‘mild’ contributing factor.”

1. The history of a lack of pre-existing shoulder related problems was not challenged in cross-examination, or in Fire Service’s evidence, and was evidence of the fact (see R v Welsh (1996) 13 NSWCCR 674; Daw v Toyworld (NSW) Pty Ltd (2001) 12 NSWCCR 389). It made Dr Endrey-Walder’s opinion compelling and the Arbitrator was entitled to give it significant weight, which he clearly did.

1. Ms Sargent’s claim is also strongly supported by her general practitioner, Dr Makarious.  In his report of 3 December 2007, Dr Makarious concluded:

“It is very clear that the symptoms Ms Sargent [is] experiencing are work related.  The acute nature of the symptoms and clinical findings are consistent with the history given.”

1. Given that Ms Sargent had no problem with her shoulders before December 2006 and that her symptoms developed at work while she performed her usual duties, the evidence from Drs Endrey-Wader and Makarious was logical, cogent and persuasive, and clearly supported the Arbitrator’s conclusion on the section 9A issue.

1. The Arbitrator did not adopt the “but for” approach to the test of causation and did not reverse the onus of proof. He considered and weighed the evidence, applied the words of section 9A to that evidence, and reached a conclusion consistent with and supported by the evidence.

CONCLUSION

1. It follows that the Arbitrator was correct to find that Ms Sargent sustained injuries to her shoulders arising out of or in the course of her employment with the Fire Service and that her employment was a substantial contributing factor to her injuries.  I agree with the Arbitrator’s conclusions and, were I to redetermine the matter, I would reach the same result. 

DECISION

1. The Arbitrator’s determination dated 6 March 2008 is confirmed.

COSTS

1. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Bill Roche
Deputy President

30 June 2008

I, EMMA LETHBRIDGE-GILL, 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