Palise v Australian and New Zealand Banking Group Limited - [2018] NSWWCCPD 13

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Palise v Australian and New Zealand Banking Group Limited [2018] NSWWCCPD 13
APPELLANT:	Jennifer Palise
RESPONDENT:	Australian and New Zealand Banking Group Limited
INSURER:	ANZ Injury Management Services
FILE NUMBER:	A1-4330/17
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	4 December 2017
DATE OF APPEAL DECISION:	5 April 2018
SUBJECT MATTER OF DECISION:	Significance of contemporaneous report of injury to medical practitioners; need for corroboration; application of principles in Chanaa v Zarour [2011] NSWCA 199; sufficiency of reasons; factual findings
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Keen Lawyers
Respondent:	HWL Ebsworth
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 4 December 2017 is revoked. 2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of the whole person impairment of injury to the neck and accepted injury to the left upper extremity (including the left shoulder and left wrist) sustained by the appellant on 10 June 2014.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s factual finding that the worker did not sustain an injury to her neck in the course of her employment, at the time she sustained accepted injuries to her left upper extremity. In particular, it concerns an alleged failure to properly consider the worker’s evidence and contemporaneous medical evidence in respect of the neck.

BACKGROUND

Jennifer Palise, the worker, was employed part-time by the respondent, Australian and New Zealand Banking Group Limited, as a personal banker. On 10 June 2014, Ms Palise slipped at work when she was entering the respondent’s brochure room. She states that her right foot skidded from under her across the floor. She slipped and fell over landing heavily on her left side. She reported the injury to her manager. As a result of this incident, she claims that she injured her left hand, left shoulder, knee, hip and neck.
Ms Palise was certified unfit for work for three days, following which she returned to work on restricted duties. She resigned on 27 May 2015.
On 4 September 2014, the respondent accepted liability in respect of Ms Palise’s claim for weekly payments and medical expenses in respect of the soft tissue injury to the left knee and lower back, aggravation of the left shoulder, acromioclavicular joint arthritis, left middle/index finger and left ulnar nerve neuritis at the elbow.
On 5 March 2015, the respondent’s insurer, ANZ, declined liability for the cost of left carpal tunnel release surgery pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). On 18 March 2015, that surgery was conducted by Dr Michael Dowd, consultant plastic, reconstructive and hand surgeon, and funded by Ms Palise.
On 26 August 2015, Ms Palise underwent left arthroscopic decompression, rotator cuff repair, bicep procedure and excision of the AC joint, at the hand of Dr Warren Kuo, orthopaedic surgeon. That surgery was funded by the insurer.
On or about 30 December 2016, Ms Palise made a claim for lump sum compensation in respect of the injury on 10 June 2014. On 19 May 2017, that claim was declined by the insurer. However, the insurer accepted that Ms Palise had 5% whole person impairment in respect of the left upper extremity.
On 30 August 2017, Ms Palise filed an Application to Resolve a Dispute (the Application). Ms Palise sought lump sum compensation in respect of injury to her neck, left shoulder and left wrist as a result of injury on 10 June 2014. She also claimed s 60 medical expenses in respect of the cost of left carpal tunnel release surgery.
On 20 September 2017, the respondent filed a Reply to the Application.
On 23 November 2017, the matter proceeded to a conciliation/arbitration hearing before a Commission Arbitrator, during which time the respondent’s insurer accepted liability for the s 60 expenses claim in respect of left carpal tunnel release surgery. The only issue remaining in dispute was whether Ms Palise sustained an injury to her neck on 10 June 2014. Following the conciliation/arbitration hearing, the Arbitrator reserved his decision.
On 4 December 2017, the Commission issued a Certificate of Determination in favour of the respondent in respect of injury to the neck on 10 June 2014. As the injuries to the left upper extremity did not meet the threshold pursuant to s 66 of the 1987 Act, of a whole person impairment of greater than 10%, the matter was not referred to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of injuries sustained on 10 June 2014.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

MS PALISE’S EVIDENCE

In evidence is a statutory declaration signed by Ms Palise, dated 25 August 2017. In the statutory declaration, Ms Palise states that she was employed as a part-time personal banker with the respondent when she sustained an injury at work on 10 June 2014. She states that:
“At approximately 9.10 a.m. I was going back into the brochure room from the kitchen when my right foot skidded across the floor and out from under me and I slipped and fell over, landing heavily on my left side. I put my left arm out in an attempt to break my fall. I suffered an injury to my left hand, left shoulder, knee, hip and neck. I immediately felt pain on the left side of my body.
…
I reported my injury to my manger…[and the] following day I consulted with my GP, Dr Russell Thompson ... ”
Ms Palise records investigations and treatment in respect of her left hand and left shoulder. She then records that she returned to work but had difficulty coping with her duties “due to pain in my left shoulder, neck and hand”. On 31 July 2014, Dr Thompson certified her fit for restricted duties working three hours per day three days per week. She continued working on restricted duties and gradually increased her hours over time. She resigned from the respondent on 27 May 2015.
On 1 June 2015, Ms Palise moved from Sydney to Tasmania. She attended on two general practitioners in Tasmania, Dr Stephen Hargreaves and Dr Oksana Myroniuk.
Ms Palise states that she continues to experience several disabilities including: “[p]ain tenderness and restriction of movement of my neck” and “[r]estricted ability to flex and rotate my neck”.

THE MEDICAL EVIDENCE

On 11 June 2014, Ms Palise attended on her general practitioner, Dr Thompson. In his clinical notes, Dr Thompson recorded:
“slipped at work.
principle injury to left hand – swollen tender 2nd & 3rd metacarpal
left knee bruised. ligaments and menisci intact”
Dr Thompson completed a WorkCover NSW Medical Certificate, certifying Ms Palise to be unfit to work for three days. The diagnosis is recorded as “injury to left hand, knee, shoulder, back and hips”.
On 13 June 2014, Ms Palise again attended on Dr Thompson. Dr Thompson recorded:
“xray – no fracture
         Multiple soft tissue injures
         Left hip, both knees, left hand
Rest for one week then review
         Analgesia”
On 20 June 2014, Ms Palise attended on Dr Nicholas Tziavaras, a general practitioner from the same medical centre as Dr Thompson. In his clinical notes for that day, Dr Tziavaras recorded:
“Reason for visit:
         Fall
         Subjective:
         work injury review- left knee and hand: bruising
         bruising has come out left knee
         left hand—still painful with finger and wrist movements—slowly improving
         Objective:
         Bruise left knee
         Left hand- sl swollen, no visible bruising
         Tenderness dorsum 4th/5th metatacarpals [sic]
         Recent xrays—no fractures
         Plan:
         update cert—stay off work another week
         review next week ?RTW with regular breaks to start with”
On 27 June 2014, Ms Palise again attended on Dr Thompson. He records “persisting pain, weakness, paraesthesia left hand and arm”. He adds “for CT neck to exclude nn root impingement”. He refers Ms Palise for a CT scan of her “[c]ervical spine. (left sided arm pain after fall persisting symptoms ? neuropathic pain)”.
On 1 July 2014, Ms Palise underwent the CT scan. In a CT report by Dr Gerald McInerney, dated the same, the following is recorded:
“Clinical History: left-sided arm pain after a fall, persisting symptoms - ? neuropathic pain
…
Findings: Large calcified nodule is noted in the left lobe of the thyroid gland.
There is evidence of degenerative disc disease at C4/5, C5/6 and C6/7 levels. There is however no evidence of significant central canal or foraminal stenosis at any level in the cervical spine. No fracture is detected. No osteolytic lesion or significant alignment abnormality is discerned.
No definite cause for acute symptoms has been demonstrated.”
Ms Palise attended on Dr Thompson on three further occasions, on 4, 11 and 25 July 2014. He did not record injury to the neck.
On 28 July 2014, Ms Palise attended on Dr Robert Breit, orthopaedic surgeon, at the request of the insurer. In a report dated the same, Dr Breit took a history that Ms Palise injured her shoulder, back, and left knee on 10 June 2014. He also recorded a history of pain between Ms Palise’s left index and middle fingers. He did not record any pain in respect of the neck. Dr Breit refers to the 2014 CT scan of the cervical spine (neck) and records “evidence of spondylosis”.
On 31 July 2014, Ms Palise attended on Dr Tziavaras. In his clinical notes for that day, Dr Tziavaras recorded the following complaints:

“RTW last Tuesday - worked 7 hours and found during end of day and after left arm/shoulder/neck pain increase in severity
subsequently took yesterday off work
pain has improved although still present”

On 14 August 2014, Dr Breit issued a supplementary report. He did not make any reference to neck symptoms or treatment.
On 7 November 2014, Dr Dowd wrote a report to Dr Thompson in which he records a history of injury to the “back”. No specific reference to injury to the neck is recorded.
On 28 November 2014, Dr Thompson refers Ms Palise to Ms Melanie Ward, injury management services officer. In the referral letter Dr Thompson refers to the incident of 10 June 2014 and records, amongst other things, soft tissue injuries to the “neck”.
On 11 February 2015, Ms Palise attended on Dr James Masson, hand & plastic surgeon, at the request of the respondent. Dr Masson took a history of the injury on 10 June 2014. After referring to the injury to the left hand, Dr Masson recorded that Ms Palise said she “injured her neck, left shoulder, left hip and left knee”. He also recorded complaint of pins and needles in both hands.
On 18 February 2015, Ms Palise attended on Dr Kuo following a referral from Dr Thompson in respect of injury to the left shoulder. He records a history of the 10 June 2014 incident and notes injury to the “neck”. He records:
“[Ms Palise] states that on 10 June 2014 she was at work walking into the brochure room and she fell landing very heavily on to her left side and onto her left outstretched arm. She injured numerous joints including her hand, elbow, shoulder, hip, knee and neck.”
On 19 May 2016, Ms Palise underwent an MRI scan of her cervical spine (neck) following a referral by Dr Myroniuk. The report dated the same records the following relevant findings: “[v]ertebral body heights in the cervical spine are maintained but with loss of the expected cervical lordosis and some straightening of the cervical curvature.”
On 6 December 2016, Dr Peter Conrad, surgeon, issued a report at the request of Ms Palise’s legal representatives. Dr Conrad took a history of the incident on 10 June 2014 and that Ms Palise “felt pain in her neck, left shoulder, left arm, the middle finger of her left hand, left knee and left hip”. He recorded that Ms Palise “continues to have some headaches and dizziness and she has pain and restriction of movement in her cervical spine, especially rotating to the left”.
During the physical examination of the neck, Dr Conrad noted “moderate restriction of movement in an asymmetrical fashion. Moderate paravertebral muscle spasm present. The restriction of movement is especially restricted when turning to the left”. He found that Ms Palise sustained an injury to her neck on 10 June 2014. Ms Palise has ongoing pain and restriction of movement in her neck. He assessed 7% whole person impairment as a result of the neck. He also assessed 7% whole person impairment as a result of injury to the left shoulder and 4% in respect of the left wrist. Using the Combined Table values, Dr Conrad assessed 14% whole person impairment as a result of injury on 10 June 2014.
On 23 February 2017, Dr Breit assessed Ms Palise, at the request of the respondent. In a report dated the same, he records a history of the incident on 10 June 2014 and injury to the left wrist, shoulder, back, left knee and right hand. He records present complaints to be intermittent “neck stiffness” on both sides which “can be associated with some dizziness”.
Also on 23 February 2017, Dr Breit issued a further report in respect of an impairment assessment of Ms Palise’s lumbar spine. He records:
“Cervical Spine – this lady had intermittent neck pain and stiffness but today there were no abnormal findings so that utilising SIRA Guides Chapter 4 and AMA Guides Chapter 15 paragraph 15.6 Table 15.5 she must be assessed under DRE Category 1 which is associated with 0% WPI.”
Dr Breit then records a whole person impairment of 9% of the left upper extremity, which converts to 5% whole person impairment.
On 29 June 2017, Dr Breit issued a supplementary report. In that report, Dr Breit records:
“5A. Does the MRI scan demonstrate [Ms Palise] currently suffers from a cervical spine condition? Please explain your response.
There is no radiological evidence of a significant spinal condition. It does report a loss of normal cervical lordosis but that is a very variable phenomenon and I cannot indicate whether or not it is relevant.
5B. If you consider the MRI demonstrates such an injury, do you consider it results from the work-related incident which occurred on 10 June 2014? Please explain your response.
The presence or absence of pathology on an MRI of the cervical spine does not necessarily indicate that there was or was not an injury. People will frequently have abnormal cervical MRIs without any symptomatology and the reverse applies.”
Dr Breit added that there was no information which would cause him to alter his impairment assessment.

THE ARBITRATOR’S REASONS

The Arbitrator recited the medical evidence in considerable detail. He noted that there was no reference to any injury to the neck or complaint of neck pain in any of the WorkCover NSW medical certificates issued between 11 November 2014 and 2 April 2015.
The first reference to either injury to the neck or the complaint of neck pain appeared in a medical certificate issued on 20 June 2014 which, among other injuries, referred to the neck injury as a “soft tissue injury”.
The clinical notes of Ms Palise’s general practitioners make only one reference to neck pain. That was in Dr Tziavaras’ consultation note dated 31 July 2017, when he recorded “left arm/shoulder/neck pain. Increase in severity”. Notwithstanding the referral of Ms Palise for CT scan of the neck on 27 June 2014 by Dr Thompson, there was no reference in his clinical note of that day to a complaint of pain in the neck.
The Arbitrator did not accept that the entry of Dr Tziavaras on 31 July 2014, referring to an increase in neck pain, was indicative of a prior complaint of neck pain by Ms Palise that had not been recorded in the clinical notes.
The Arbitrator stated:
“Similarly I do not place significance on the referral of the applicant for a CT scan of her neck on 27 June 2014. In my view that referral was part of the investigation carried out by Dr Thompson following [Ms Palise’s] fall on 10 June 2014 to exclude nerve root compression.”[1]
[1] Reasons, [70].

In his report dated 28 November 2014 to Ms Ward, Dr Thompson stated that in his opinion, Ms Palise suffered a number of soft tissue injuries involving the left knee, left hand, left shoulder and neck. Following radiological investigations, he concluded that there were two persisting injuries from the fall, namely:
(a) a rotator cuff injury to the left shoulder, and
(b) various damage to the soft tissues of the left hand.

The Arbitrator concluded that there was nothing in Dr Thompson’s clinical notes or in the WorkCover certificates to justify his statement that Ms Palise suffered a soft tissue injury to the neck.
The Arbitrator considered it significant that Dr Breit, who examined her on behalf of the respondent on 28 July 2014, did not record any complaints of pain in the neck.
Similarly, Dr Dowd, who saw Ms Palise for the first time on 7 November 2014 on referral to Dr Thompson, also made no record of complaint in the neck. Both doctors described in detail the other injuries which are not in issue.
When Ms Palise saw Dr Kuo for the first time on 18 February 2014, on referral from Dr Thompson for treatment in respect of the left shoulder, he took a comprehensive history of Ms Palise’s fall and noted injuries to numerous joints including the hand, elbow, shoulder, hip, knee and neck. The Arbitrator said:
“It is unclear where this history came from – that is, if it is from the referral given by Dr Thompson or the history given by the applicant to the doctor.”[2]
[2] Reasons, [77].

Dr Kuo recommended surgery for the rotator cuff injury which subsequently took place on 26 August 2015.
The Arbitrator noted that Dr Masson obtained a history of injury to the neck (among other body parts).[3] On examination, he did not find any symptoms in the neck. His examination focused on the carpel tunnel syndrome in the left wrist.
[3] Reasons, [78].
Ms Palise underwent an MRI scan of her neck on 19 May 2015 (sic, 2016) at the request of Dr Myroniuk. The reasons for the referral for the further MRI scan are not evidence. It revealed no significant spinal canal or foraminal comprise of the neck. However, it demonstrated the absence of the right vertebral artery which was noted as a congenital abnormality.
The Arbitrator did not accept the submission that an assessment by Dr Breit, on 23 February 2017 of 0% whole person impairment in respect of the neck, was necessarily made on the assumption by him of an injury to the neck. The Arbitrator concluded that Dr Breit had been requested to make an assessment of any impairment of the lumbar spine.[4] It is not apparent why he provided any assessment with respect to the neck. Dr Breit reviewed an MRI scan of the neck dated 19 May 2016 and concluded that it did not demonstrate any radiological evidence of a significant spinal condition. He commented that a recorded loss of normal cervical lordosis, was not necessarily indicative of injury and frequently appears in cervical MRI’s without any accompanying symptomatology.
[4] Reasons, [82].

With respect to Dr Conrad’s opinion, noting that he did not have access to the MRI scan of 19 May 2016, the Arbitrator said:
“It is on the basis of this history, present symptoms recorded and MRI scan of the cervical spine dated 19 May 2016 that Dr Conrad makes his finding that the applicant injured her cervical spine on 10 June 2014. In my view this material does not provide a sufficient basis for Dr Conrad to make this finding.”[5]
[5] Reasons, [88].

The Arbitrator concluded that Ms Palise had not discharged the onus of proof with respect to her claim that she suffered an injury to her neck on 10 June 2014 in the form of aggravation or exacerbation of a pre-existing asymptomatic degenerative condition in the spine.[6] The Arbitrator found that no doctor expressed an opinion consistent with the allegation.
[6] Reasons, [89].
The Arbitrator found that the radiological investigations of the neck on 1 July 2014 and 19 May 2016 did not enable such a finding to be made or an inference to be drawn of an injury to the neck.
The 2014 CT scan of the neck was part of Dr Thompson’s investigation of injury sustained by Ms Palise on 10 June 2014, without any recorded complaint by her of injury to the neck. The recording by Dr Tziavaras on 31 July 2014 of an increase in neck pain is not indicative of any earlier complaint to the doctor about neck pain. It was also inconsistent with the lack of any complaint of any neck pain recorded by Dr Breit when he saw Ms Palise for the first time on 28 July 2014.
The Arbitrator concluded:
“Thereafter there is a lack of any recording by a doctor of [Ms Palise] saying she injured her neck on 10 June 2014 until she sees Dr Kuo in February 2015.
In my view having regard to the whole of the evidence [Ms Palise] has failed to discharge the onus on her to show that she suffered injury to her cervical spine on 10 June 2014.”[7]
[7] Reasons, [92]-[93].

As the assessment of Ms Palise’s whole person impairment, absent of any findings in relation to the neck, was less than 10%, no referral could be made to an AMS for an assessment of her whole person impairment. Consequently, the Arbitrator entered an award for the respondent in respect of the neck injury.

GROUNDS OF APPEAL

Ms Palise alleges that the Arbitrator erred in:
(a)rejecting the opinion of Dr Thompson in relation to the question of causation of the alleged injury to the neck;
(b)failure to have regard to the clinical notes of Dr Tziavaras dated 31 July 2014 in relation to a complaint of neck pain;
(c)failing to consider the factual significance of the entry by Dr Tziavaras on 31 July 2014 in relation to neck pain;
(d)failing to give reasons for the rejection of her evidence concerning the question of causation of the injury to the neck, in circumstances where there was no contradictory evidence, and
(e)failing to have any regard to her evidence.

MS PALISE’S SUBMISSIONS

Ms Palise alleges that the Arbitrator’s determination was based on the fact that there appeared to be no contemporaneous complaint of an injury to the neck following the incident on 10 June 2014. However, so it is submitted, there was no contemporaneous record of complaint in relation to the left shoulder yet the Arbitrator was prepared to accept that there was injury to the left shoulder.
The absence of a contemporaneous record of injury to the neck was relevant but not determinative.[8]
[8] Bugat v Fox [2014] NSWSC 888 (Bugat v Fox).
It is submitted that at the time of the injury, Ms Palise came into the care of Dr Thompson. Her initial consultation with him occurred on the day following the injury. There were then subsequent visits on 13, 20 and 27 June 2014 and 4, 11, 25 and 31 July 2014. It is submitted that Dr Thompson’s record keeping in the clinical notes is very much limited and “scant”. This is evidence by Dr Thompson’s letter to Ms Ward dated 28 November 2014. That referral, after describing the mechanism of injury, recorded:
“[Ms Palise] sustained a number of soft tissue injuries involving her left knee, left hand, left shoulder and neck.”
Again, it is submitted that Dr Thompson’s clinical notes make no reference to an injury to the left shoulder in the first five consultations after the alleged injury. The letter to Ms Ward makes it clear, so it is submitted, that Ms Palise suffered injuries to “different parts of the body” sustained in the fall. The Arbitrator rejected Dr Thompson’s evidence, only in relation to the neck, notwithstanding Dr Thompson’s statement in his letter to Ms Ward that there were four areas of the body injured including the neck.
The Arbitrator failed to grapple with the fact that Dr Thompson’s notes were extremely brief and not entirely accurate as to the absence of complaints to the left shoulder in the first five consultations after the injury. Dr Thompson’s letter to Ms Ward of 28 November 2014, should have been accepted as evidence of a neck injury given that it was written within several months of the accepted injuries.
Ms Palise attended on Dr Tziavaras on 31 July 2014. On that day, Dr Tziavaras recorded increasing neck pain, yet the Arbitrator excluded that history as indicative of previous complaints of neck pain. Ms Palise submits that the Arbitrator gave insufficient weight to the clinical notes, namely that as of 31 July 2014, Ms Palise had suffered previous neck complaints and increasing severity of symptoms.
The Arbitrator placed emphasis on the absence of any recorded complaints of neck pain in Dr Dowd’s report. However, Dr Dowd was treating Ms Palise in relation to her hand. Having regard to the fact that Dr Dowd was focusing on the treatment of the injury to Ms Palise’s hand, little weight should be placed on the fact that he did not record a complaint of neck pain.
It is implied that the Arbitrator rejected Ms Palise’s evidence. It is submitted that the Arbitrator failed to provide sufficient reasons to understand the path of reasoning that led to his final conclusion. It is submitted that the Arbitrator fell into error “in not dealing with the evidence of [Ms Palise] in any respect.”

THE RESPONDENT’S SUBMISSIONS

It is a mischaracterisation of the Arbitrator’s reasons to submit that his decision was based on an absence of contemporaneous complaints of injury to the neck in the immediate period following the incident.
The respondent submits that Ms Palise’s submissions with respect to the left shoulder should be ignored. There is no dispute that Ms Palise injured her left shoulder in the fall on 10 June 2014. The acceptance of an injury to the left shoulder can have no bearing on the disputed injury to the neck.
Bugat v Fox dealt with an appeal from an administrative decision maker, namely a medical panel, concerning whether the injuries complained of were due to the effects of the motor vehicle accident. Acting Justice RS Hulme concluded that the panel clearly showed that it regarded what they perceived as an absence of contemporaneous evidence as determinative of the issue on causation and in so doing, they erred. The respondent submits that Bugat v Fox can be readily distinguished. Ms Palise has been unable to identify where the Arbitrator had allegedly “taken a similar view”. It submits that the Arbitrator’s decision was not based only on a concluded view regarding an absence of contemporaneous evidence of neck pain, but rather his decision was based on the whole of the evidence concluding ultimately that Ms Palise failed to discharge the onus on her to show that she injured her neck on 10 June 2014.[9]
[9] Reasons, [93].
It is submitted that the Arbitrator correctly dealt with the circumstantial case before him by determining the matter on the balance of probabilities applying the line of authorities leading to Nguyen v Cosmopolitan Homes.[10]
[10] [2008] NSWCA 246.
Further, the respondent submits that in order for the appeal to succeed, the Commission must be satisfied that the Arbitrator’s decision was wrong, not merely that an alternative conclusion was available.[11]
[11] Citing Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, [506].
It is submitted that the Arbitrator’s findings were available and no error has been demonstrated.
The Arbitrator viewed Dr Thompson’s evidence with the evidence as a whole.
Ms Palise submissions do not account for why Dr Thompson’s initial certificate of capacity, which was also signed by Ms Palise, dated 11 June 2014, failed to refer to any injury to the neck.
Further, the Arbitrator took into account that Dr Breit did not record any history of a neck injury.

So far as Dr Dowd’s evidence is concerned, the respondent:
“… makes the point that his report represents a factor in the balance militating against the case put forward by [Ms Palise] at arbitration. While the Arbitrator did not reveal what weight he placed on this evidence, it demonstrates that the Arbitrator did, in fact, have regard to all the evidence.”
Even if the complaints of increasing neck pain on 31 July 2014 demonstrates the existence of neck pain previously, it does not show a causal link between the incident on 10 June 2014 and the onset of neck pain for which Ms Palise contends. Her case is that she suffered a frank injury to the neck on 10 June 2014.
The critical question is whether in light of all the evidence, Ms Palise suffered a personal injury by way of a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.[12]
[12] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, [300] applied in Galluzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82.
Even though Dr Breit was charged with ascertaining the injuries suffered by Ms Palise and their affects, the Arbitrator gave it due weight in the task of determining whether Ms Palise induced an actual persuasion that she suffered an injury to the neck.
The Arbitrator did not view the absence of contemporaneous complaints as determinative but concluded, based on all of the evidence, that the evidence did not support the conclusion that Ms Palise suffered injury to her neck on 10 June 2014. Accordingly, so it is submitted, the first three grounds are not made out.
The respondent submits that Ms Palise has failed to identify the manner in which the Arbitrator failed to have any regard to her evidence. Ms Palise made reference to injuries to her “left hand, left shoulder, knee, hip and neck” in her statement.[13] The next reference to the neck injury is where she makes reference to a CT scan of her neck on 1 July 2014.
[13] Ms Palise’s statement, [4].
Ms Palise failed to identify why she was referred for a CT scan of the neck and does not state that she made any complaints of her neck at that time.
Ms Palise’s complaints of disabilities including restriction of movement in the neck could not be accepted as evidence of a personal injury on 10 June 2014.
The respondent “concedes that the Arbitrator did not expressly grapple with [Ms Palise’s] statement…” However, it submits that nothing turns on this as Ms Palise’s statement merely asserts a conclusion of law. Therefore, the Arbitrator did not err in failing to deal with her evidence. The respondent further submits that Ms Palise placed no emphasis on her statement during the arbitration proceedings. Therefore, so it is submitted, there was no reason for the Arbitrator to grapple with the legal conclusions expressed in the contents of Ms Palise’s statement. Consequently, the respondent submits that the remaining two grounds are not made out.

DISCUSSION

I accept Ms Palise’s submission that the Arbitrator failed to provide reasons for rejecting her evidence, or at least impliedly rejecting it. The respondent readily concedes that “the Arbitrator did not expressly grapple with [Ms Palise’s] statement…”. The Arbitrator referred to Ms Palise’s evidence, however, he failed to analyse it or provide any reasons for rejecting it.
The High Court considered the sufficiency of reasons, in Waterways Authority v Fitzgibbon.[14] The Court said:
“In the present case, however, reference to the ‘sufficiency’ of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”[15]
[14] [2005] HCA 57; 221 ALR 402 (Fitzgibbon).
[15] Fitzgibbon, [130] (per Hayne J, McHugh and Gummow JJ agreeing).
Ms Palise’s evidence was crucial to the issue the Arbitrator was required to determine, namely, whether she injured her neck on 10 June 2014. The Arbitrator’s failure to deal with Ms Palise’s evidence in any satisfactory way was an error in the fact-finding process.
I do not accept the submission that Ms Palise placed no emphasis on her statement at the arbitration. Her counsel expressly relied on her statement as evidence of her injuries including the injury to her neck.[16]
[16] Transcript of Proceedings, Palise v Australian and New Zealand Banking Group Limited (WCC, [2017] NSWWCC 288, Arbitrator Batchelor, 23 November 2017), T 4.2.
Further, I do not accept the respondent’s submission that the Arbitrator’s failure to deal with Ms Palise’s evidence is of no consequence because it merely asserted a conclusion of law. Ms Palise’s evidence goes no further than to outline the circumstances in which she was injured and the immediate pain that she sustained on the left side of her body, including pain in the left hand, left shoulder, knee, hip and neck. That was not a legal conclusion it was a statement of fact.
For these reasons alone the Arbitrator’s decision cannot stand. However, there are additional reasons for concluding that the Arbitrator’s determination should be revoked.
The Court of Appeal dealt with the caution to be exercised in resolving inconsistent evidence by reliance on extracts from clinical records, in Mason v Demasi.[17] Justice Basten held:
[17] [2009] NSWCA 227 (Demasi).
“The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 [Huseyin] at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;

(ii)     the manner in which the history was obtained;
(iii)     the period of time devoted to that exercise, and
(iv)     the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)    the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[18]

[18] Demasi, [2].

Ms Palise attended on Dr Thompson on 11 June 2014, the day after the accident, and subsequently on 13 and 27 June 2014. It is accepted that the brief clinical notes recorded by Dr Thompson refer to histories of multiple soft tissue injuries, omitting reference to any complaint with respect to the neck. However, for the reasons identified in Demasi and Huseyin, the clinical notes must be approached with caution.
The notes are clearly a highly abbreviated summary of the consultation. The emphasis being on what Dr Thompson described as the “principal injury”, namely, the injury to the hand.[19] As there is no evidence of the circumstances of the consultation, how long it took or any of the other factors identified by Basten JA, it would be unsound to conclude, based on that history alone, that Ms Palise did not suffer an injury to her neck as alleged. It is, however, evidence which must be weighed with all other evidence.
[19] Dr Thompson’s clinical notes, 11 June 2014.
On 27 June 2014, that is, a little over two weeks after the alleged incident, Dr Thompson referred Ms Palise for a CT scan of the neck “to exclude NN root impingement”. The Arbitrator stated that he did not place any significance on the referral concluding that it was merely part of Dr Thompson’s investigation to exclude nerve root compression.[20]
[20] Reasons, [70].
The only reasonable inference that can be drawn from Dr Thompson’s notes and the referral for the CT scan of the neck is that he was investigating the diagnosis of an injury to the neck. As his notes indicate, Dr Thompson identified impingement of the nerve roots in the neck, as a possible explanation for the symptoms complained of in the left arm. This clearly suggests that Dr Thompson contemplated the possibility of an injury to the neck at that point in time.
Several days later, on 31 July 2014, Ms Palise attended on Dr Tziavaras who recorded an increase in neck pain at that time. The Arbitrator did not accept that the reference to increase of neck pain was “indicative” of prior complaints of neck pain. He also concluded that it was inconsistent with a lack of any report of neck pain by Dr Breit who saw Ms Palise on 28 July 2014.
The inference drawn by the Arbitrator, that Dr Tziavaras’ clinical notes did not indicate prior neck complaints, was not available on the evidence. The only reasonable inference that can be drawn from the entry made by Dr Tziavaras on 31 July 2014 is to the contrary, namely, that Ms Palise had been experiencing pain in her neck prior to that date. It is consistent with Ms Palise’s evidence that she injured her neck on 10 June 2014. It is also consistent with the injury to the neck being exacerbated by an attempt to return to work, as Dr Tziavaras noted.
The inference drawn by the Arbitrator is also inconsistent with Dr Thompson’s letter of referral to Ms Ward on 28 November 2014. In that referral, Dr Thompson provided the history that amongst the injuries sustained by Ms Palise on 10 June 2014 was an injury to her neck. The referral was predominately in respect of two persisting injuries, namely, the rotator cuff injury to the left shoulder and the injuries to the left hand. These two persisting injuries had clearly become the focus of medical attention but despite this the referral noted injury to the neck.
The Arbitrator placed no weight on the history obtained by Dr Kuo. That was because he could not be satisfied where the history of an injury to the neck originated. That is, whether it was based on the history obtained from Ms Palise or whether it originated from the referral from Dr Thompson. Dr Kuo’s report clearly states that the history he obtained was provided by Ms Palise. In his report to Dr Thompson, dated 18 February 2015, Dr Kuo records:
“[Ms Palise] states that on 10^th June 2014 she was at work walking into the brochure room and she fell landing very heavily on to her left side and onto her left outstretched arm. She injured numerous joints including her hand, elbow, shoulder, hip, knee and neck.”
It follows that the Arbitrator was wrong to disregard the history obtained by Dr Kuo as it was consistent with and corroborative of Ms Palise’s allegation of an injury to her neck (among other injuries).
The Arbitrator did not accept Dr Conrad’s opinion, which also supported Ms Palise’s allegation of injury to the neck. Dr Conrad stated that his opinion was based on the history provided, which included a history of neck injury on 10 June 2016 and continuing symptoms which are noted at [33] above. The Arbitrator’s conclusions with respect to Dr Conrad’s opinion are somewhat confusing. The Arbitrator noted that Dr Conrad did not have the report of the 2016 MRI scan of the neck yet his conclusion with respect to Dr Conrad’s opinion state:
“It is on the basis of this history, present symptoms recorded and MRI scan of the cervical spine dated 19 May 2016 that Dr Conrad makes his finding that the applicant injured her cervical spine on 10 June 2014. In my view this material does not provide a sufficient basis for Dr Conrad to make this finding.”

The Arbitrator’s reasons do not provide a satisfactory basis for not accepting Dr Conrad’s opinion concerning the alleged injury to the neck. The principles relating to expert evidence was discussed in Hancock v East Coast Timber Products Pty Ltd.[21] Hancock made it clear that, even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “does not require strict compliance with each and every feature referred by Heydon JA in [Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218] to be set out in each and every report.”[22]
[21] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock).
[22] Hancock, [82] (per Beazley JA (as her Honour then was), Giles and Tobias JJA agreeing).
Justice Beazley added that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight.”[23] What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by [Ms Palise], and information from x-rays and other tests”.[24]
[23] Hancock, [83] (per Beazley JA (as her Honour then was), Giles and Tobias JJA agreeing).
[24] Hancock, [85] (per Beazley JA (as her Honour then was), Giles and Tobias JJA agreeing).
Dr Conrad’s report conforms to the requirements for the acceptance of expert evidence. He set out the history obtained, the findings on examination and based on this and his expertise reached a concluded view the Mrs Palise sustained an injury to the neck. It was not fatal to the acceptance of his opinion that he did not have access to all the radiological material. The weight to be attached to Dr Conrad’s evidence, in the absence of the radiological material, was another matter. However, as Dr Conrad had satisfied the requirements for the acceptance of his expert opinion, the Arbitrator was wrong to give it no weight merely because of the lack of access to the radiological investigations.
The Arbitrator noted that Dr Masson recorded a history of neck injury when he examined Ms Palise on 11 February 2015. However, he did not indicate what weight, if any, he gave to that record. The Arbitrator’s finding that Dr Masson did not find any symptoms in the neck was somewhat misleading. Dr Masson did not examine the neck. His examination focused exclusively on the hand and wrist, which is unsurprising given that he is a specialist Hand and Plastic Surgeon, and clearly focused on the injuries that were within his expertise. The fact that Dr Masson recorded a history of neck injury was relevant and supported Ms Palise’s evidence of injury to the neck.
As explained by Campbell JA in Chanaa v Zarour:[25]
“(a)    it is not the law that a worker must have corroboration before he or she can succeed;
(b)     in the civil law, corroboration is not a technical term or a legal requirement, and
(c)     the task of a judge is to decide, on the basis of the whole of the evidence (denials and all), what he or she accepts.”[26]
[25] [2011] NSWCA 199 (Chanaa).
[26] Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66, [75] citing Chanaa, [86] (Bathurst CJ and Tobias AJA agreeing).
The evidence in favour of the finding of injury to the neck includes:
(a)    Ms Palise’s evidence of a neck injury;
(b)    Dr Thompson’s referral for a CT scan of the neck on 27 June 2014;
(c)    the history of continuing neck pain recorded by Dr Tziavaras on 31 July 2014;
(d)    Dr Thompson’s referral letter to Ms Ward dated 28 November 2014, which included a history of neck complaint;
(e)    the history of neck injury recorded by Dr Masson, on 11 February 2015;
(f)    the history of neck injury recorded by Dr Kuo on 18 February 2015, and
(g)    the evidence of Dr Conrad, in his report of 6 December 2016, who was satisfied that Ms Palise had suffered a neck injury.
Although the absence of a contemporaneous record of neck injury during the first few visits to her general practitioner was a relevant and important matter, as the appellant submits, it was not determinative. The evidence as a whole overwhelmingly supported the conclusion that Ms Palise suffered an injury to her neck on 10 June 2014. The evidence went well beyond conflicting inferences of equal degrees of probability.[27] It provided a solid evidentiary basis for a finding, on the balance of probabilities, that Ms Palise injured her neck on 10 June 2014. For the reasons stated, the Arbitrator’s finding to the contrary was an error.
[27] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.
For the sake of completeness, I should add that I do not accept Ms Palise’s submissions with respect to the Arbitrator’s findings of injury concerning the left shoulder in the absence of contemporaneous complaint. As the respondent submits, the acceptance of an injury to the left shoulder can have no bearing on the disputed injury to the neck
For the reasons stated, it follows that the Arbitrator’s determination of 4 December 2017 must be revoked and the matter re-determined. Where an Arbitrator’s decision is revoked, it is generally desirable that the Presidential member hearing the appeal re-determine all issues.[28]
[28] Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1.
As I have said, it was a relevant and important consideration that there was no contemporaneous record of an injury to the neck in Dr Thompson’s notes when he first saw Ms Palise on 11 June 2014. However, the lack of a contemporaneous record of neck injury is not determinative.
Ms Palise gave sworn evidence of an injury to her neck on 10 June 2014 and persisting stiffness associated with some dizziness and headaches. Her evidence is consistent with the evidence as a whole and there is no persuasive evidence to the contrary. She appeared to be a stoic individual returning to work within a short period of time after the injury, notwithstanding the serious nature of her injuries. I accept her evidence.
Within a little over two weeks Dr Thompson referred Ms Palise for a CT scan of the neck. He did so to investigate the possibility of nerve root impingement in the neck. In other words, from Ms Palise’s presentation he had reason to believe that she may have suffered a serious injury to her neck. Due to the proximity of the CT scan to the accepted work injury it is reasonable to infer that Mrs Palise injured her neck on 10 June 2014.
It is also relevant to note that Dr Tziavaras identified and recorded an exacerbation of neck pain when he saw Ms Palise on 31 July 2014, eight weeks after the injuries were sustained. This is consistent with Ms Palise suffering neck symptoms prior to the consultation with Dr Tziavaras on 31 July 2014.
Ms Palise’s consistently provided a history of neck injury to the expert medical practitioners. This is noted in the reports of Drs Kuo, Conrad, Masson and Breit (in Dr Breit’s report of 23 February 2017).
I accept that there is no mention of a history of neck pain in the initial report of Dr Breit and Dr Dowd’s report to Dr Thompson dated 7 November 2014. However, based on the whole of the evidence, I am satisfied, on the balance of probabilities, that Ms Palise injured her neck on 10 June 2014.
The parties have made no submissions on the diagnosis of the injury to the neck. The evidence does not permit me to identify with any precision the diagnosis of the injury. In any event it is unnecessary for me “to put a label” on the injury. The diagnosis of the neck injury and any permanent whole person impairment flowing from it will be a matter for an AMS to determine.[29]

[29] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, [7] (per Windeyer).

DECISION

The Arbitrator’s determination of 4 December 2017 is revoked.
The matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of the whole person impairment of injury to the neck and accepted injury to the left upper extremity (including the left shoulder and left wrist) sustained by the appellant on 10 June 2014.

Judge Keating

President

5 April 2018