Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd)

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32
APPELLANT:		Stephen Perkins
RESPONDENT:		Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd)
INSURER:		GIO General Limited
FILE NUMBER:		A1-8146/10
ARBITRATOR:	Mr Brett Batchelor
DATE OF ARBITRATOR’S DECISION:		22 February 2011
DATE OF APPEAL DECISION:		15 June 2011
SUBJECT MATTER OF DECISION:		Expert evidence; weight of evidence; causation; onus of proof; Workers Compensation Commission as specialist tribunal
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Ron Kramer & Associates
Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:		The appeal is dismissed and the Arbitrator’s determination made in Certificate of Determination dated 22 February 2011 is confirmed. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

A dispute concerning entitlement to compensation benefits between Mr Stephen Perkins, the appellant, and his former employer Ceva Materials Handling Pty Ltd, the respondent, came before Arbitrator Brett Batchelor for conciliation/arbitration on 1 February 2011.
Mr Perkins’s claim was in respect of weekly payments and lump sum compensation. The injury alleged was described in the Application as:
“Injury to both hands/fingers due to nature and conditions and [sic] deemed date of injury 27 September 2006. Consequential to the injury to both hands/fingers the claimant has suffered injury [sic] to both shoulders”.
Agreement was reached during the course of the conciliation process concerning Mr Perkins’s entitlement to weekly compensation. That claim was, by agreement, discontinued.
It was also agreed that, arising out of or in the course of his employment, Mr Perkins received injury to both his hands, including the fingers, the deemed date of injury being 27 September 2006.
The parties were unable to reach agreement concerning the allegation of consequential injury to both shoulders. In the circumstances the arbitration proceeded to enable a determination concerning that matter remaining in dispute. The Arbitrator reserved his decision and a Certificate of Determination was issued on 22 February 2010.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 22 February 2010 records the Arbitrator’s orders as follows:
“1. The applicant discontinues his claim for weekly compensation and the requirement to file a Notice of Discontinuance pursuant to rule 15.7(3) of the Workers Compensation Commission Rules 2010 is dispensed with.
2.     There will be an award in favour of the respondent in respect of the applicant’s claims for injury to his right shoulder and to his left shoulder.
3.     The applicant’s claims for permanent impairment to his left upper extremity (hand) and right upper extremity (hand) as a result of injury on 27 September 2006 are remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment.
4.     The documents to be referred to the Approved Medical Specialist are:
(a) The Application to Resolve a Dispute excluding pages 103-164 inclusive;
(b) The Reply and documents attached excluding pages 42-67 inclusive;
(c) Application to Admit Late Documents lodged on behalf of the applicant dated 26 November 2010, and
(d) Application to Admit Late Documents lodged on behalf of the respondent dated 27 January 2011.
5.     The applicant is to pay the respondent’s costs as agreed or assessed. I declare the matter ‘complex’ and allow 15 per cent uplift on costs to applicant and respondent.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that the condition in the left and right shoulders was not caused by the accepted injuries to the right and left hands;
(b)     applying the wrong test for the purpose of evaluating the evidence including that of Dr Endrey-Walder;
(c)     finding that the uncontradicted evidence of the appellant and that of Dr Endrey-Walder was not sufficient to enable a finding that the condition of the appellant’s shoulders was a result of the injuries to the hands and fingers, and
(d)     failing to, as a specialist tribunal, consider whether there was sufficient evidence to conclude that there was a causal connection between the hand injuries and the condition of each of the appellant’s shoulders.
The summary of the issues appearing above has been taken from the appellant’s Grounds of Appeal as stated at Part B of Mr Perkins’s application with respect to the appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
I note that the parties agree that the threshold requirements as to quantum and time as provided by s 352(3) and s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE ARBITRAL PROCEEDINGS

The evidence

The documentary evidence before the Commission was noted by the Arbitrator at [18] of his Statement of Reasons (Reasons). No oral evidence was adduced at the hearing.
The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. That transcript records those submissions put on behalf of each party by counsel.
The documentary evidence relied upon by Mr Perkins established that he commenced work with the respondent as an operator on 4 May 2004. His duties concerned the assembly and disassembly of hire equipment. That work involved use of a variety of hand tools and required dexterous use of both hands.
Mr Perkins, who is presently 30 years of age, first experienced pain and stiffness in both hands in the first half of 2005. He was placed on light duties driving a forklift in September 2006. On 4 October 2006 his general practitioner certified that he was totally unfit for work. He has not returned to work, except for a three week trial with Woolworths Limited in September 2008.
He had earlier been referred for specialist consultation to Dr Antonio Fernandes, plastic and reconstructive surgeon. When first examined by Dr Fernandes in April 2005, a history of triggering in the middle fingers on the right and left side was recorded. Initial treatment included injections. When examined by that practitioner in November 2006 it was recorded that some improvement in symptoms had occurred. It was also noted that there was some clicking in Mr Perkins’s shoulders.
Mr Perkins’s symptoms persisted. He consulted Dr Raymond White, consultant rheumatologist, who prescribed Prednisone. That practitioner diagnosed a condition of flexor tenosynovitis.
Mr Perkins again consulted Dr Fernandes in 2007. When examined by that practitioner in March 2007 it was noted that there was “triggering, now localised to the right middle finger but, his left middle finger is not triggering”. Mr Perkins was advised to undergo surgical treatment.
On 10 May 2007 Dr Fernandes carried out surgical release of the right middle finger. Mr Perkins experienced problems with the wound. In July 2007 Mr Perkins was discharged from Dr Fernandes’s care.
Mr Perkins was referred for further opinion to Dr James Masson, specialist hand surgeon, whom he consulted in July 2007. Dr Masson addressed only those symptoms complained of which Mr Perkins experienced in his right hand. Dr Masson concluded that he had a successful trigger release but may have some ongoing synovitis in the tendons. Ultrasound was conducted which demonstrated swollen tendons in the right middle finger. Dr Masson injected the flexor sheath with Celestone. Mr Perkins subsequently complained to Dr Masson of swelling in his fingers, and shooting pain up his arm. Dr Masson’s treatment ceased in October 2007.
The evidence relied upon by Mr Perkins reveals the following matters concerning the condition of his shoulders:
(a)     the clinical notes of Dr Nguyen, general practitioner, record complaint of ache and pain in his left shoulder on 24 July 2008. This date is agreed between the parties to be the first recorded complaint of shoulder pain made by Mr Perkins. An ultrasound was arranged;
(b)     Dr Nguyen’s notes record a complaint of pain in the right shoulder during a consultation on 1 August 2008. It was also noted that an ultrasound study of the left shoulder showed subdeltoid bursitis;
(c)     on 29 July 2009 Dr Nguyen’s notes record complaints as follows:
“Pain in L shoulder for some time now
worse over the last few weeks
some clicking
worse with certain movns [sic]
denies any trauma”;
(d)     on 15 September 2009 Dr Nguyen recorded that a left shoulder ultrasound revealed subacromial bursitis and evidence of bursal bunching. Dr Nguyen noted that Mr Perkins required an ultrasound examination of his right shoulder and that he had experienced pain in that joint after “mowing lawn”, and
(e)     Dr Nguyen recorded the results of right shoulder ultrasound during a consultation on 22 September 2009 being “subacromial bursitis with bursal impingement”.
A statement dated 4 August 2010 made by Mr Perkins which is in evidence contains a summary of his medical treatment. A description of his relevant symptoms is made in the following terms:
“15. I continue to suffer constant pain in both hands but the right hand is worse than the left hand. When I use my hands my fingers swell up. Both my hands are weak and my grip is weak. Because of the weakness in the grip of both hands I find it difficult to carrying [sic] things and often drop things.
16. At times the pain shoots up both my forearms but more so the right forearm. I also occasionally get pain in both my shoulders.
17. To the best of my present recollection since about early to mid 2008 I have had pain in both shoulders. First the left shoulder became sore and not long afterwards the right shoulder as well. I believe that the pain in my shoulders was a result of the pain and disability in both my hands and arms. The pain in both my hands and arms make it difficult for me to do a range of activities and I have to use my arms differently to try and cope.”
Mr Perkins relied upon the evidence of Dr P Endrey-Walder, general and trauma surgeon, who had been qualified by his solicitors to provide an opinion for the purposes of this litigation. A report dated 29 September 2009 is in evidence. In the course of recording relevant history, Dr Endrey-Walder noted that an ultrasound of Mr Perkins’s left shoulder had been arranged by Dr Nguyen in September 2009. Dr Endrey-Walder reports that, given that he had not heard any complaint regarding Mr Perkins’s shoulders, he directly asked Mr Perkins about that subject.
Mr Perkins responded by informing Dr Endrey-Walder that he had had “shoulder problems for some time”. Dr Endrey-Walder’s report includes notations that left shoulder ultrasound reported “fluid in the subacromial bursa in keeping with mild bursitis, and that right shoulder ultrasound “reports subacromial bursitis with bursal impingement demonstrated. Some synovial hypertrophy was noted at the acromio-clavicular joint”.
Dr Endrey-Walder provided a detailed opinion concerning the hand injuries following which he expressed the following opinion concerning the alleged shoulder disabilities:
“Late in the interview he made mention of shoulder related pain and restriction in his capacity to abduct the arms as a consequence, and I would expect this to be secondary to the abnormal biomechanics of his upper limbs on account of the symptoms as described above.
I believe that his shoulder related problems are due to the sub-acromial bursitis causing impingement.”
Mr Perkins relied upon a large number of reports from medical practitioners including Dr Fernandes, Dr Raymond White, Dr Masson and Dr Allan Meares. The subject of alleged disability in the shoulders is not addressed by those practitioners.
A report of Dr Christopher Browne, consultant rheumatologist, dated 27 November 2006 was relied upon by Mr Perkins. Dr Browne had been retained by the insurer to provide a report concerning Mr Perkins’s condition. In the course of physical examination it was recorded by Dr Browne:
“At the right shoulder there was pain at full abduction, but an otherwise full range of movement was possible. The left shoulder was clinically unremarkable”.
It was Dr Browne’s opinion that:
“The nature and conditions of [Mr Perkins’s] work have induced an overuse syndrome characterised by pain, stiffness and impaired functional capacity of his hands with involvement of the flexor tendons”.
A report of Dr Rauf Yousaf dated 3 November 2009 was admitted into evidence as a late document on the application of Mr Perkins. That report concerned an ultrasound right shoulder and Celestone Injection conducted by Dr Yousaf. It is reported that there was “thickening of the SASD bursa.” Treatment provided included injection of that bursa with Celestone and Marcain and Lignocaine Solution. No opinion as to causation of the condition requiring treatment is provided.
The respondent relied upon the evidence of Dr Allan Meares, hand surgeon, and Dr Robert Breit, orthopaedic surgeon. The evidence of Dr Meares is found in reports, two of which post date that report of Dr Meares relied upon by Mr Perkins. The first of those reports is dated 17 July 2009. That report followed an examination of Mr Perkins on 15 July 2009. No complaint of injury or disability involving the shoulders is recorded in that detailed report.
Dr Meares again examined Mr Perkins on 10 February 2010. A report dated 12 February 2010 is in evidence. When questioned as to his “current status/present complaints” Mr Perkins reported pain and disability in each hand as well as “pain in his shoulders”. Mr Perkins is noted as saying to Dr Meares “this is a ‘major’ pain”.
Dr Meares noted the contents of Dr Endrey-Walder’s report dated 29 September 2009 which addressed the condition of the shoulders. He, being a specialist hand surgeon, declined to express an opinion concerning the condition of the shoulders. He suggested an independent medical examination of the shoulders by an orthopaedic surgeon.
The respondent arranged an examination of Mr Perkins by Dr Breit which occurred on 10 June 2010. A report bearing that date is in evidence. During that consultation Mr Perkins reported symptoms in his hands, shoulders, and neck as well as the back. Dr Breit noted that the back complaints were “not relevant to this claim”.
Included among reports of medical investigations noted by Dr Breit is “22 November 2001-Left shoulder ultrasound - normal”. No other ultrasound report is recorded as having been viewed by Dr Breit.
Following a physical examination of Mr Perkins, Dr Breit expressed the following opinion:
“This gentleman’s presentation is most extraordinary. He claims to be unable to recall a large variety of events, yet he is able to specifically remember when he has had surgery and that he had a previous wrist fracture.
His presentation is of gross abnormal illness behaviour and maximisation. The right arm is kept in protected posture except when it is used normally in an unguarded moment. There is the most extraordinary global pain and restriction in the right shoulder without any history of injury as far as I am able to determine and there is certainly no correlation between trigger finger and shoulder pathology. The examination by Dr Endrey-Walder of September 2009 only revealed abduction to 80 degrees on both sides, other movements were normal, that does not in any way resemble today’s examination. This gentleman ceased working a long time ago and there is nothing to account for this deterioration.”
Dr Breit stated later in that report that “the inconsistency within the shoulders is so marked with nothing to suggest that there is a work related component that I will have to indicate that there is no impairment as a result of work in either shoulder”.
The respondent tendered clinical notes of Dr Nguyen as late documents. Those records are in evidence and post date the notes tendered in Mr Perkins’s case. Of relevance are the following matters recorded at various consultations:
“15 March 2010 sore R shoulder since the weekend
noted pain while playing football
got worse after the game
took Panadeine Forte last nite [sic]
had little cs injection to shoulder late 2009 for bursitis
pt advised
for regular nsaid
may need further cs ionjection [sic] if pain persists
…
7 June 2010 been moving boxes at home
in the process of moving
pain in hands arms and shoulders have gotten worse over the weekend
do not have any analgesia at present
…
23 November 2010 accidently jerked R shoulder while opening cupboard doors
have note [sic] pain over shoulder since
not getting better
been taking Panadeine Forte
also history of bursitis in shoulders
pain been getting worse
had cs injection in 9/09
request further injection
advise to bring in previous u/s”

Submissions

It was put on behalf of the respondent that the onus was upon Mr Perkins to prove that as a consequence of injury to his hands he has suffered disability in the shoulders. It was argued that the “high point” of his case on that issue is to be found in the evidence of Dr Endrey-Walder. It was put that the opinion suggesting a causal connection between the hand injuries and the alleged shoulder disabilities was addressed by that practitioner in a “very perfunctory fashion”. It was noted by counsel that pain in the shoulders came on “some 19-20 months after [Mr Perkins] ceased work”. Reliance had earlier been placed by counsel upon the evidence of Dr Breit.
Mr Perkins’s solicitor opened his submissions by clarifying the nature of his client’s claim. It was made perfectly clear that there was no allegation that the nature and conditions of employment caused injury to the shoulders. His claim, it was said, was “that the injury to both shoulders was caused by the altered way in which [Mr Perkins] uses his hands because of the injury to both hands, which was caused by the nature and conditions of employment”. The injury was characterised as a “secondary injury”.
It was argued that the “chronology”, that is the timing of onset of symptoms, was “entirely consistent with that [sic] claim that it’s secondary to those injuries” (at T11). It was again accepted that the first recorded complaints of shoulder pain were made in mid 2008.
It was put that the imaging results of the shoulders demonstrated “actual injury”. The evidence of the ultrasound investigations was relied upon as establishing “abnormal pathology”. It was put that “the Commission [would] appreciate” that the findings of bursitis “is [sic] a gradual onset sort of a problem and a strain type of situation rather than a frank problem” (at T13).
The cause of the shoulder pathology was said to be “the altered biomechanics that result from the injury to both hands”. The opinion of Dr Endrey-Walder was relied upon concerning that suggested causal connection.

Mr Perkins argued that the evidence demonstrated the manner in which “those altered biomechanics… impact”. Reference is made to pain “shooting up his arm”, difficulty with door handles, lifting his children and pushing shopping trolleys.
The real dispute, it was put in argument, was between Dr Breit and Dr Endrey-Walder and it was argued that Dr Breit’s opinion should be rejected. It was put that Dr Breit had not fully comprehended Mr Perkins’s “problems”. The content of his report is criticised on several bases including:
(a)     Dr Breit assumes injury only to the left hand. He makes no mention of the right hand injury;
(b)     Dr Breit has either ignored the “imaging” studies of the shoulders or “they were not available to him or he has not looked at them”;
(c)     the ultrasound, dated 2001, is “not relevant” except to support Mr Perkins’s case that “there was no pre-existing problem”;
(d)     Dr Breit is the only medical practitioner to observe that there were “gross inconsistencies” in Mr Perkins’s presentation, and
(e)     Dr Breit has “not addressed [Mr Perkins’s] case”. He has treated the allegation as one of work related injury to the shoulders.
Mr Perkins submitted that Dr Breit’s opinion should be rejected and that Dr Endrey-Walder should be accepted concerning the causal relationship between the shoulder disabilities and his hand injuries.
The parties appear to have reached agreement that the deemed date of injury to the hands was 27 September 2006 and that the deemed date of injury to the shoulders was 27 November 2009. Mr Perkins asked that the matter be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of any whole person impairment arising from injury to the upper extremities. Mr Perkins submitted that any whole person impairment resulting from the shoulder injuries, being “secondary injuries”, are to be “aggregated” with any finding of whole person impairment made with respect to the hand injuries.

The Arbitrator’s Decision

The Arbitrator carefully summarised the evidence which was uncontested concerning Mr Perkins’s work history, the onset of symptoms causing incapacity and detail of medical treatment.
The agreements reached between the parties concerning ongoing entitlement to weekly compensation and the fact of injury to Mr Perkins’s hands were noted as was the evidence concerning onset of bilateral shoulder pain first recorded in mid 2008. It was further noted that “injuries alleged by [Mr Perkins] to his left and right shoulders remain in dispute”.
Following a detailed summary of submissions put on behalf of each party the Arbitrator noted the allegation made by Mr Perkins as follows (at [33] of Reasons):
“… that the injuries to both shoulders, said to have occurred on 27 November 2009 were as a consequence of the injury to both hands/fingers. That is, as a result of the undisputed injuries to [Mr Perkins’s] hands/fingers, he suffered injuries to both shoulders”.
The Arbitrator noted that Mr Perkins’s suggestion concerning causation made in his statement summarised at [22] above was made after the provision of Dr Endrey-Walder’s report dated 29 September 2009. Dr Endrey-Walder did not, in the Arbitrator’s view, “explain the abnormal biomechanics which you [sic] would expect to cause the shoulder related pain and restriction in [Mr Perkins’s] capacity to abduct his arms.” Mr Perkins’s left and right hand symptoms are summarised. The Arbitrator proceeded to find that “there is no doubt that [Mr Perkins] is suffering a diagnosable condition in both his left and right shoulders, being sub‑acromial bursitis causing impingement” (at [39] of Reasons).
The Arbitrator expressed his conclusion that there “is insufficient evidence to find that the problems in [Mr Perkins’s] shoulders arose as a result of the injuries to his hands and fingers (at [40] of Reasons).
An observation was made by the Arbitrator that, for there to be a finding in favour of Mr Perkins on this issue, he would “have to find that the abnormal biomechanics of [Mr Perkins’s] upper limbs, as suggested by Dr Endrey-Walder resulting from the pain and symptoms in his hands, caused these shoulder problems”. The Arbitrator was not satisfied that the evidence was “sufficient for this finding to be made” (at [42] of Reasons). The Arbitrator proceeded to state (at [44] of Reasons):
“Using a common sense [sic] approach to the evaluation of the evidence (see: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452), there is nothing apart from what the applicant says at [16-17] of his statement of 4 August 2010, and what Dr Endrey-Walder says about abnormal biomechanic [sic] to link the shoulder problems with the symptoms which the applicant was experiencing in his hands and fingers. There is no description of the abnormal biomechanics, nor any explanation as to why it was some 19 or 20 months at least after cessation of employment with the respondent that the applicant's shoulder symptoms manifested themselves, and resulted in complaint to Dr Nguyen. There is no detailed evidence from the applicant as to the altered way in which he used his hands during that period, nor any consideration of any such altered hand use by a medical practitioner. Dr Endrey-Walder does not do this, and no other doctor links the applicant's shoulder problems with his altered hand/finger use, or indeed with his employment.”
The Arbitrator proceeded to enter an award in favour of the respondent as noted in [2] of the Certificate of Determination which I have recorded at [6] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010: Sch 6 Pt 19G cl 8 to the Workers Compensation Act 1987 (the 1987 Act). The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are regulated by s 352(7) which provides:
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The grounds relied upon by Mr Perkins suggest errors on the part of the Arbitrator both of fact and of law. Before dealing with those arguments raised on the appeal it is convenient to examine the nature of the claim.
Mr Perkins claimed, pursuant to s 66 of the 1987 Act, a lump sum in respect of whole person impairment resulting from injury to his hands. He alleged that, as a result of those injuries, he has suffered whole person impairment not only as a result of the admitted injuries to his hands, but also as a result of consequential disability in each shoulder which is causally related to the hand injuries.
The respondent has disputed both the alleged causal relationship between the hand injuries and the shoulder disabilities, as well as the suggested whole person impairment said to be a consequence of the condition of the shoulders. The first question, as to causation, is a liability question and was one to be determined by the Arbitrator. Such dispute as to liability must be determined before referral to an AMS by the Registrar of the dispute as to whole person impairment: s 321(4)(a) of the 1998 Act.
In submissions Mr Perkins has made reference to the development of “a consequential injury” to the shoulders. That is not a correct description or characterisation of the basis of his claim. The matter in dispute concerns the existence or otherwise of a consequential loss resulting from the admitted hand injuries.
Argument advanced by Mr Perkins on this appeal is to be found in annexure “A” to his application made concerning the appeal. Whilst there are five “grounds” of appeal, the arguments found in that annexure are not specifically directed to any one ground upon which he relies. In the circumstances it is proposed to deal with those grounds seriatim.
Ground one states:
“The Arbitrator erred when he found that the condition in the left and right shoulders was not caused by the accepted injuries to the right and left hands”.
In submissions Mr Perkins correctly notes that the Arbitrator had accepted that he had suffered “a diagnosable condition in the left and right shoulders which appeared to be subacromial bursitis causing impingement”. He proceeds to state that “the question was whether there was a causal link between the accepted injuries to the hands and the diagnosable condition present in both shoulders”. It is argued that, with respect to that factual issue, the only medical evidence was the opinion expressed by Dr Endrey-Walder.
Mr Perkins’s submissions note that Dr Meares declined to express an opinion concerning the state of the shoulders and it is argued that Dr Breit did not accept that there was “an injury of any type to the shoulders”. Reference is made in those submissions to the results of ultrasound studies conducted in 2009 which demonstrated the existence of bursitis in each shoulder. Mr Perkins correctly notes that no reference is made by Dr Breit to those findings. In the circumstances, it is argued, Dr Breit “did not address the question of whether there was a relationship between accepted injury to both hands and a condition of bursitis in the shoulders”.
I accept Mr Perkins’s submissions concerning the evidence of Dr Breit. There can be no doubt on the evidence that Mr Perkins suffers from the condition of bursitis in each shoulder, a fact which was not acknowledged by Dr Breit. In those circumstances, as submitted, the issue for determination, namely causal nexus between the accepted hand injuries and the state of the shoulders, was not addressed by Dr Breit. It follows that I accept Mr Perkins’s submission that the only expert medical opinion addressing the relevant question was that expressed by Dr Endrey-Walder. Notwithstanding my views concerning the evidence of Dr Breit, I am not satisfied that Mr Perkins has demonstrated that the Arbitrator committed a factual error in finding that the shoulder disabilities had not been caused by the hand injuries. My reasons for so concluding appear below. I note in passing that it appears to be argued that Dr Endrey-Walder’s uncontradicted evidence should have been accepted by the Arbitrator. The Commission is not obliged to accept the uncontradicted evidence of that witness (see Thurston v Todd (1966) 84 WN (Pt 1) (NSW) 231).
Grounds two and three may conveniently be dealt with together. Those grounds were stated as follows:
“2 The Arbitrator erred when he applied the wrong test for the evaluation of the evidence.
3 The Arbitrator erred when he applied the wrong test to discount the evidence of Dr Endrey-Walder.”
Mr Perkins’s submissions appearing in annexure “A”, which appear to be relevant to these two grounds, direct attention to the reasoning as expressed by the Arbitrator in particular at [44] of Reasons which I have set out at [52] above. It is put that “by referring to Kooragang Cement v Bates and referring to a commonsense approach the Arbitrator misdirected himself concerning the task before him”.
It is argued that the Arbitrator’s reliance upon Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR452 (Kooragang) “is peculiar”. The assertion is made in argument that Kooragang “is not a case about the evaluation of evidence. The commonsense test referred to in that decision is a test of causation. The question being considered by the Arbitrator was the weight of the evidence.”
It is correct, as asserted by Mr Perkins, that the evidence of Dr Endrey-Walder which suggested a causal nexus between the hand injuries and the shoulder disabilities was uncontradicted. During the course of his reasons in Kooragang, Kirby P (as he then was) (with whom Sheller JA and Powell JA agreed) made reference to early English authority (at 461 and 462) and proceeded to state:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act” (at 462E).
The task before the Arbitrator was to determine the existence or otherwise of a causal nexus between the hand injuries and the shoulder disabilities. I have earlier noted the evidence of Mr Perkins which is found in his statement as recorded at [22] above. It was Mr Perkins’s belief that the pain in his shoulder was a result of the pain and disability in both hands and arms. The Arbitrator has taken into account that evidence as well as the evidence of Dr Endrey-Walder when addressing the question as to whether there existed a relevant causal nexus.
I do not accept Mr Perkins’s argument that the Arbitrator’s reliance upon Kooragang demonstrates that the wrong test had been adopted when conducting an evaluation of the evidence including that of Dr Endrey-Walder. Nor do I accept Mr Perkins’s assertion of error on the part of the Arbitrator in adopting “a commonsense approach to the evaluation of the evidence”. As was stated by Kirby P in Kooragang (at 463G):
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
It is plain that the Arbitrator has concluded that the evidence of Dr Endrey-Walder, considered together with that of Mr Perkins, was not of sufficient weight to establish the alleged causal nexus between the work related hand injury and the shoulder disabilities. The Arbitrator has plainly stated his reasons for rejecting that evidence. So far as the evidence of Mr Perkins is concerned, it was noted by the Arbitrator that his statement came into being after provision of Dr Endrey-Walder’s report, and that mention by Mr Perkins of shoulder pain during examination by Dr Endrey-Walder was incidental to other matters reported by him during the course of history taking. It is clear that those matters were mentioned by the Arbitrator as a demonstration of his scrutiny of the evidence for the purpose of evaluating its evidentiary weight.
The Arbitrator has plainly stated the reasons for his rejection of the hypothesis advanced by Dr Endrey-Walder. Those reasons included:
(a)     Dr Endrey-Walder does not describe the “abnormal mechanics” to which he refers in reaching his opinion;
(b)     Dr Endrey-Walder does not explain why “it was some 19 or 20 months at least after cessation of employment with the respondent that the shoulder symptoms manifested themselves;
(c)     there is no detailed evidence as to the “altered way” in which Mr Perkins used his hands following injury, and
(d)     there was no evidence of a medical practitioner, including Dr Endrey-Walder, concerning a consideration of such altered hand use.
The shortcomings in the evidence which have been noted by the Arbitrator in the course of his Reasons led him to conclude that there was not sufficient evidence before him to satisfy the onus which was upon Mr Perkins to establish the necessary causal nexus. Such conclusion was open to him. These grounds, in my view, have not been made out.
The fourth ground of appeal relied upon by Mr Perkins is expressed as follows:
“4 The Arbitrator erred when he found that the uncontradicted evidence of the Appellant and Dr Endrey-Walder was not sufficient to find that the problem in the Appellant’s shoulders were as a result of the injuries to the hands and fingers”.
I have earlier (at [63]) observed that the Arbitrator was not bound to accept the uncontradicted evidence of Mr Perkins and Dr Endrey-Walder concerning causal nexus. This is not a case where the Arbitrator has preferred the opinion of one expert over that of another. It is clear that the Arbitrator was not assisted by the evidence of Dr Breit concerning that issue. The Arbitrator’s approach was not to compare and contrast competing expert views, but to evaluate the only evidence relevant to the matter in issue. I have earlier found that the Arbitrator’s approach to the evaluation of the evidence did not demonstrate any relevant error of fact or law and I conclude that Mr Perkins’s complaints raised under this ground of appeal should be rejected.
The fifth ground of appeal relied upon by Mr Perkins is stated as follows:
“5 The Arbitrator erred when he failed to consider whether as a specialist Tribunal there was sufficient evidence to conclude that there was a causal connection between the accepted injuries to the right and left hands and the condition in both shoulders”.
Submissions which appear to relate to this particular ground suggest that the opinion concerning causation as expressed by Dr Endrey-Walder “is one that is common and unremarkable”. The Arbitrator’s reasoning is criticised upon the basis that no consideration was given by him, as an expert tribunal, as to whether facts established were sufficient to allow a finding concerning the relevant causal nexus.
That the Commission is a specialist or expert tribunal is clear. The Commission has particular knowledge of relevant labour markets and wage levels however its specialist knowledge or expertise does not extend to filling gaps in evidence which is adduced for the purpose of establishing a causal nexus between employment and a diagnosed disability. As was stated by Beazley JA in Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 (at 365):
“In my opinion, the advantages which membership of a specialist tribunal are intended to promote do not extend to applying the member’s own views of the aetiology of a disease which is not supported by the evidence”.
The argument advanced by Mr Perkins under this ground must be rejected.
I am of the view that the conclusions reached by the Arbitrator were open to him on the evidence and I am not satisfied that Mr Perkins has established error in any relevant sense on the part of the Arbitrator. In the circumstances the appeal fails.

DECISION

For the reasons stated herein the appeal is dismissed and the Arbitrator’s determination made in Certificate of Determination dated 22 February 2011 is confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Deputy President
15 June 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2011] NSWWCCPD 32

15 June 2011

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Expert Evidence

Causation

Onus of Proof