Petrovski v Ikea Pty Ltd - [2017] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Petrovski v Ikea Pty Ltd [2017] NSWWCCPD 20
APPELLANT:	Mary Petrovski
RESPONDENT:	Ikea Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1249/16
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	4 January 2017
DATE OF APPEAL DECISION:	10 May 2017
SUBJECT MATTER OF DECISION:	Weight of evidence; analysis of medical and lay evidence; adverse factual finding in the absence of cross-examination
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Beilby Poulden Costello
Respondent:	Hall and Wilcox Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 4 January 2017 is confirmed.

INTRODUCTION

The appellant worker challenges an Arbitrator’s factual finding that she did not discharge the onus of proof to establish that she sustained a frank injury to her lower back, in the course of her employment with the respondent employer.
For the reasons explained in this decision, the appeal is unsuccessful.

BACKGROUND

Mary Petrovski was employed by Ikea Pty Ltd (Ikea), the respondent employer, as an office assistant. She was employed by Ikea from early to mid-2014 until 27 July 2015, when she ceased work.
Ms Petrovski alleged that she sustained an injury in the course of her employment on 21 August 2014. However, she did not complete a WorkCover Worker’s Injury Claim Form (claim form) until 29 July 2015. In the claim form, the injury is described to have occurred when she “[b]ent down to pick up my pen and felt sharp pain in lower back”. She recorded the injury as “prolapsed disc, back, Right leg”.
Ms Petrovski sought weekly payments of compensation from 21 August 2014 to date and continuing, together with medical expenses.
On 28 August 2015, Ikea’s insurer, Allianz Australia Workers Compensation (NSW) Ltd, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It claimed that it did not have sufficient information to establish that Ms Petrovski sustained an injury on 21 August 2014 and denied liability on the basis of ss 4, 9A, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act). The insurer issued a subsequent s 74 notice, in substantially the same terms, on 10 December 2015. It did not accept that Ms Petrovski’s back injury arose out of the course of employment or that employment was the main contributing factor to the injury.
On 16 September 2015, Ms Petrovski underwent a right sided decompressive laminectomy at the L5/SI level.
On 14 March 2016, Ms Petrovski lodged with the Commission an Application to Resolve a Dispute (the Application). Ms Petrovski claimed weekly benefits and medical expenses in respect of the injury sustained on 21 August 2014. In the Application she described the injury to have occurred when she “bent down to pick up a pen” and claimed that it resulted in the following:
“Prolapsed disc with right side nerve root compression, injury to back and right leg to which surgical intervention in the form of a L5/S1 Discectomy and Decompression of right S1 Nerve together with secondary injuries to the digestive system as a consequence of the medications prescribed and psychological injury.”
On 9 March 2016, Ms Petrovski issued a letter to the insurer claiming lump sum benefits, in respect of 16 per cent whole person impairment as a result of the injury sustained on 21 August 2014. That claim was declined by the insurer on 30 March 2016, on the same basis that the claim to the back was previously denied in the s 74 notice dated 10 December 2015.
On 4 April 2016, Ikea lodged a reply to the Application, relying upon the s 74 notices.
On 18 April 2016, Ms Petrovski was granted leave to include a claim for lump sum compensation pursuant to s 66 of the 1987 Act. However, Ms Petrovski later withdrew reliance on that claim.
On 23 June 2016, Ms Petrovski was granted leave to rely upon a single ‘nature and conditions’ claim in respect of her back injury deemed to have occurred on 3 August 2015. However, Ms Petrovski later withdrew that claim.
Also, on 23 June 2016, Ms Petrovski was refused leave to add a claim for a consequential condition to her digestive system, consequent upon the primary injury to her back.
On 23 June 2016, 6 October 2016 and 8 December 2016, the matter was listed for conciliation/arbitration proceedings before Arbitrator Batchelor. The matter did not resolve and the Arbitrator reserved his decision.
On 4 January 2017, the Arbitrator issued a Certificate of Determination in favour of Ikea. The Certificate of Determination is in the following terms:
“1. Award for the respondent in respect of the claim for injury to the lumbar spine on 21 August 2014.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

Ms Petrovski appeals the Arbitrator’s determination.

PRELIMINARY MATTERS

There is no issue that the threshold requirements of s 352(3) of the 1998 Act as to the quantum of compensation in issue on appeal have been satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.

LAY EVIDENCE

In evidence is an email from Alison La Delfa, Ikea’s HR manager, to Alexander Riley, Ikea’s employee, dated 29 July 2015, in respect of a meeting between Ms La Delfa and Ms Petrovski regarding the back injury.
In that email it is recorded that Ms Petrovski “advised that she cannot remember the exact incident or did not think there was anything in particular, however she was at work when she felt a sharp/shooting pain in her back and down her right leg”. This incident was estimated to have occurred in “July/Aug 2014”. Ms Petrovski had not informed the team leaders because “she was embarrassed”.
Also in evidence are two statements by Ms Petrovski, dated 4 March 2016 and 20 July 2016.
In her initial statement, Ms Petrovski states that ever since she started working for Ikea she “began to notice pain and discomfort in my lower back, especially when I was attempting to move, readjust, twist and bend in my chair provided by my employer”. Some of the chairs provided by Ikea were “very old and ‘faulty’ in that they provided little if any support with some of the chairs having the backbone so weak that if you leaned against it, it would see you fall to the floor.”
Ms Petrovski claimed that her back pain was initially manageable as “it only came about every now and again” when she was readjusting herself on the chair. However, that changed on 21 August 2014, when she was just about to go on her break and noticed that one of her pens had fallen to the floor. She states:
“As I left my chair I went to bend down and pick up my pen when I suddenly noticed a sharp pain in my lower back; a shooting pain and tightness in my lower back and right leg.
I shouted in pain in which a co-worker of mine Rona asked if I was ok to which I responded ‘I don’t know, I just went to pick up this pen and I felt this pain in my lower back’.”
She adds that she was a “little concerned” about the “pain shooting down” her right leg.
Ms Petrovski thought she had pulled a muscle in her back or leg. She struggled to finish work, which was only for another two hours. She went home and took Panadol to relieve the pain.
The pain did not go away but slowly increased over time whilst at work. By October 2014 the pain “got so bad” she started to “get radiating pain down” her back and right leg. She then decided to consult her general practitioner about her symptoms.
She claims that it was not until she consulted with Dr Brennan, who recommended surgery to her lower back, that she realised the severity of her situation. Her general practitioner recommended that she make a workers compensation claim, and she did.
Ms Petrovski states that her “current injuries, condition need for surgery and ongoing disabilities are as a result of the nature and conditions of my employment” with Ikea.
In her supplementary statement, dated 20 July 2016, Ms Petrovski clarifies “how the ‘nature and conditions’” of her employment aggravated, accelerated or exacerbated the disease in her lumbar spine. She explains that her back symptoms in 2013 and early 2014 were likely a result of kidney stones. Ms Petrovski then describes lumbar symptoms from mid-July 2014 to 21 August 2014.
Ms Petrovski described her work hours and breaks, the quality of chairs she sat on during her working day, and, amongst other things bending and lifting during work. She states that by the time of the incident on 21 August 2014 the pain in her lumbar spine “had worsened due to my day to day work activities.”

MEDICAL EVIDENCE

In evidence are the clinical notes of Ms Petrovski’s general practitioners, including, Drs Nikolce Cvetkovski, Zora Sebez, and B Kuzmanovski. There are several entries referring to lower back pain; firstly on 8 March 2013, and secondly on 17 July 2013, where Dr Cvetkovski records: “[l]umbo-sacral – Intermittent lower back pains more so in the morning and on twisting the L spine.” The next reference to lower back pain is on 5 February 2014, where the following is recorded:
“Started with lower back pain slight R of centre, some features of right sided sciatica, previous episodes about 5-10 yrs back after a fall.”
Dr Cvetkovski referred Ms Petrovski for an ultrasound of her abdomen.
On 12 March 2014, Dr Sebez records that Ms Petrovski attended complaining of abdominal pain. She presented with the ultrasound results of her abdomen. Dr Sebez recorded that the ultrasound showed “multiple, mobile gallbladder calculi and sludge”. She recorded “lowe [sic] back pain” but “no lumbar regions tendernss [sic]”.
On 8 October 2014, Dr Sebez records that Ms Petrovski attended complaining of back pain. Dr Sebez recorded:
“R lower back pain 4 weeks
         Radiating down her R leg
         Pulling sensation in leg
         Tingling sensation in leg
has seen two chiropractors with no much improvement”
On 15 October 2014, Dr Cvetkovski records complaint of recurring lower back pain with right leg sciatic pain. He referred Ms Petrovski for a CT scan of her lumbar spine.
On 22 October 2014, Ms Petrovski underwent an MRI scan of the lumbosacral spine. In a report dated the same, Dr Hemi Williams made the following comment on the MRI scan: “[t]he primary finding is a posterior right central disc protrusion at L5/S1 impinging on the right S1 nerve root.”
On 30 October 2014, Ms Petrovski attended on Care Physiotherapy for physiotherapy treatment in respect of an “aching and intermittent sharp shooting pain from lumbar region radiating down right L4/5, L5/S1 dermatone”. She subsequently had a series of physiotherapy sessions.
On 23 April 2015, Ms Petrovski attended on Dr Ashish Diwan, orthopaedic surgeon, following a referral from Dr Cvetkovski. In a report dated the same, Dr Diwan recorded a history that Ms Petrovski developed symptoms of right leg and low back pain “sometime in August 2014 when she was going on a break at work.” Her symptoms have been ongoing and there is “extreme amount of restriction of various activities of daily living”. Dr Diwan recommended microdiscectomy, or, in the alternative, L5-S1 transforaminal epidural steroid.
On 12 May 2015, Dr Brennan wrote to Dr Cvetkovski. He recorded a history that Ms Petrovski had been “experiencing right sided lumbar radiculopathy for roughly eight months. She has had a lot of non operative treatment and despite this her symptoms are not improving.” He recommended surgery over continued non operative treatment.
On 22 May 2015, at the request of Dr Jeffrey Brennan, neurosurgeon, Ms Petrovski underwent a further MRI scan of the lumbosacral spine. The MRI report by Dr Jeff Kuan, dated 25 May 2015, records:
“[t]here is a moderately large broad based right sided disc protrusion at L5/S1 causing significant compression of the right S1 nerve root. There is a small right sided disc protrusion at L4/5 with mild impingement of the right L5 nerve root. No significant neural compression is seen on the left.”
On 11 June 2015, Dr Brennan issued a further report to Dr Cvetkovski. He referred to the second MRI scan and recorded that there is “still very definite ongoing compression of the right S1 nerve despite now eight months of non operative treatment and time for healing”. He again recommended surgery.
On 27 July 2015, Dr Kuzmanovski records the following history:
“On 21 August 2014 she was at work trying to bend to pick up a pen from the floor when she felt pain in the right sdie [sic, side] of the lower back sharp with feeling of numbness radiating to the right leg.
She didn’t report the incident beceuase [sic] she was starting work there and was afraid to lose the job.
She eventually saw Dr Cvetkovski here and had a CT and MRI scans and saw Dr Diwan.
The diagnosis was confirmed as L5/S1 disc prolapse with right sided radiculopathy.
…
When she realised that it is work related injury she decided to report it.”
On 4 September 2015, Dr Brennan issued another report to Dr Cvetkovski. In this report Dr Brennan makes first reference to work related cause of injury. Dr Brennan recorded:
“I understand that the Workcover claim has been launched. When I first met [Ms Petrovski] there was no obvious connection with work but she now tells me that the original injury occurred with bending to pick something up in the work place.”
He recommended surgery.
On 23 November 2015, Dr Paul Carney, neurosurgeon, issued a report to the insurer. He recorded a history that on 15 June 2015, Ms Petrovski reported a workplace incident that occurred on 21 August 2014. He records that the incident occurred when Ms Petrovski attempted to pick up a pen from the floor and felt a sharp pain in her lower back. One week after the incident she began limping.
Dr Carney reviewed the MRI scans. He found there to be degeneration of the L4/5 disc with a small right sided disc protrusion impinging on the right L5 nerve root. At the L5/S1 there was a similar degree of degeneration with a large right sided prolapse compressing the right S1 nerve root. He found the latter prolapse to be “almost certainly responsible for her symptoms”. He concluded that Ms Petrovski has had “degenerative change in the lumbar spine, particularly the L4/5 and L5/S1 discs probably for several years. This would be normal in someone of her age.” He added:
“If the incident that she describes is accepted, an acute prolapse occurred of the lumbo sacral disc when she bent down to pick up the pen/pencil and has been followed by persisting prolapse or probably recurrent protrusions culminating in surgical intervention.”
Dr Carney recorded that, given the history, “it is likely that the disc prolapse occurred at the time and in the manner in which [Ms Petrovski] described.” He found the pre-existing degenerative changes to be a significant contributing factor to the development of the disc prolapse, however, noted that the incident picking up the pen “was a precipitating cause”. The injury was unlikely to have been caused by the nature of her employment but could have occurred. He further recorded that such an injury “could have occurred whilst she was performing her activities of daily living”.
On 25 January 2016, Dr James Bodel, orthopaedic surgeon, issued a report to Ms Petrovski’s legal representatives. In that report, Dr Bodel records a history of the incident on 21 August 2014. He records that Ms Petrovski put up with the pain for about a month before consulting her general practitioner, who referred her for an MRI scan on 22 August 2014 (sic, 22 October 2014). That MRI “shows a huge right sided disc prolapse at the L5/S1 level and some moderate central bulging at the L4/5 level”. He records that to his surprise Ms Petrovski “still did not make a Workers’ Compensation Claim at that time”.
Dr Bodel found that based on the medical evidence there “is a casual link between the episode of injury on 21 August 2014 and [Ms Petrovski’s] ongoing back pain and right sided sciatic pain”. He found her to have a current whole person impairment of 16 per cent, which he said would reduce to 13 per cent over time.
On 6 April 2016, Dr Petroula Quinn, psychologist, issued a report to Ms Petrovski’s legal representatives. Ms Petrovski had attended on Dr Quinn on several occasions for counselling sessions, following a referral from Dr Cvetkovski. Dr Quinn records in the third session that Ms Petrovski reported that from August 2014 she was suffering from significant pain in her lower back and right hip extending down to her right leg. This was described to be a result of “the position [Ms Petrovski] was sitting at her desk chair at work; she said the pain gradually increased over time and it was discovered that she had sustained an ‘L5 disc prolapse’.” Dr Quinn recorded that Ms Petrovski was pursuing a workers compensation claim in respect of the injury to her lower back, and had not pursued it earlier until a co-worker suggested that she do so.
On 2 August 2016, Dr Brennan issued a further report to Ms Petrovski’s legal representatives. In that report, Dr Brennan recorded that the history obtained on 12 May 2015 suggested that Ms Petrovski’s pain dated back eight months prior to her initial visit. He commented that the clinical records of back pain roughly eighteen months prior to the work injury was thought to be of renal origin. That pain improved after passing a kidney stone in October 2013. He confirmed his original diagnosis that the injury in August 2014 was “a substantial contributing factor to the subsequent need for surgery in that the symptoms spreading down the leg consistent with nerve compression dated back to that time.”
On 13 September 2016, Dr Carney issued a supplementary report. Dr Carney recorded that Ms Petrovski’s employment was largely sedentary in nature and not physically demanding. He could not see any aspect of that employment “which would be more demanding than the lighter activities of everyday life.”
Dr Carney recorded Ms Petrovski to be “suffering from degenerative disease of the lumbar spine” which he said was “not contracted in her employment” with Ikea. Dr Carney said:
“Mrs Petrovski gave a very clear history of a single incident at work on 21.08.2014 when she stated she attempted to pick a pen up from the floor. If that history is accepted then this is a significant exacerbation. If it is also true that she felt pain in the right buttock radiating down the right leg to the calf and lateral aspect of the ankle and that she’d never had pain down the leg before then this indicates a disc prolapse compressing the S1 nerve root occurring at the time she described. Nevertheless the history is critical in this and if I am not provided with an accurate history then none of the above statements can be made.”
Dr Carney added that if the history was correct then employment was the main contributing factor to the injury.
Dr Carney noted the history provided in the clinical notes and accepted that Ms Petrovski was suffering from a pre-existing symptomatic lower back condition prior to commencing her employment with Ikea. He recorded that that condition, on the limited information available, probably was degeneration in at least the lower most lumbar disc with disc protrusion likely to be affecting a nerve root going to the right leg.

Dr Carney recorded that “[i]t would be unusual for someone suffering acute sciatica, acute disc prolapse to defer a doctor’s appointment from 21 August 2014 when the incident is reported as occurring until 8 October 2014 a duration of 48 days.” He suggested that Ms Petrovski’s symptoms of pain radiating down the right leg occurred subsequent to the reported injury of 21 August 2014. He considered symptoms of back pain and radiating leg pain “would have been immediate and would have resulted in an immediate complaint.”
Dr Carney also recorded that he was provided with an inaccurate history, in so far as he was not provided with a history of episodes of back pain or leg pain prior to the incident of 21 August 2014.
Dr Carney considered it more probable that the disc prolapse did not occur at work.
On 15 September 2016, Dr Bodel issued a report to Ms Petrovski’s legal representatives. Dr Bodel recorded a history that Ms Petrovski had a history of “sciatic pain radiating to the pain” after the incident on 21 August 2014. He confirmed that he was satisfied that the event of 21 August 2014 “led to that external disc disruption of the disc and need for the subsequent treatment”. Dr Bodel noted that the other recorded episodes in Dr Cvetkovski’s notes did not record leg pain and did not represent any firm diagnostic information in regard to some pre-existing disc prolapse.
On 16 November 2016, Dr Brennan issued a report to Ms Petrovski’s legal representatives. He recorded that bending and lifting are “well recognised potential triggers to produce injury to the disc and disc herniation.” He found that on the balance of probabilities the “L5/SI disc herniation likely occurred as a result of this lifting injury”. As there were no symptoms leading up to the injury, Dr Brennan found that it was “more likely than not that the injury was a noteworthy contributing factor to her symptoms and the need for subsequent surgery.”

THE ARBITRATOR’S REASONS

The Arbitrator identified that the principal issues requiring his determination were:
(a)     whether Ms Petrovski suffered an injury to her lumbar spine on 21 August 2014 when she bent down to pick up a pen off the floor;
(b)     whether her employment was a substantial contributing factor to the injury claimed;
(c)     whether she had suffered a condition in the digestive system as a consequence of the alleged injury from the ingestion of medication;
(d)     the extent of any incapacity as a result of the alleged injury on 21 August 2014, and
(e)     the entitlement to reimbursement of medical expenses.
The Arbitrator set out at considerable length the evidence before him.
Ultimately the Arbitrator concluded that Ms Petrovski had failed to discharge the onus of proof that she sustained an injury on 21 August 2014 whilst bending to pick up a pen. In summary form, the Arbitrator’s reasons for reaching that conclusion are as follows.
Ms Petrovski did not report the alleged injury of 21 August 2014 to her employer at the time the injury was sustained. The injury was not reported until she submitted a claim form on 29 July 2015.
The witness nominated on the claim form, Rona Cubillo, did not give evidence. Apparently neither party obtained a statement from her or sought to have her give oral evidence. The Arbitrator did not draw any adverse inference against either party from the failure to call Ms Cubillo to give evidence.
The earliest report of any work connection between Ms Petrovski’s condition and her employment was noted in a report of Dr Diwan after consulting Ms Petrovski on 23 April 2015.
The first consultation with a general practitioner after the alleged incident was with Dr Sebez, whom Ms Petrovski saw on 8 October 2014. Ms Petrovski complained of right lower back pain over a period of four weeks but failed to identify the alleged incident on 21 August 2014 as the cause.
Ms Petrovski sought a second neurological opinion from Dr Brennan whom she saw on 12 May 2015. Again no history of a work related injury was provided to the doctor at that time. In fact it was not until Ms Petrovski’s third visit to Dr Brennan on 4 September 2015 that she described a work incident as the cause of her back pain.
In Ms Petrovski’s statement dated 4 March 2016, she claimed that she experienced pain in her lower back prior to 21 August 2014 which she alleged was due to repositioning herself on a chair. In the later statement Ms Petrovski said that by the time of the incident of 21 August 2014 the pain in the lumbar spine had worsened because of her day to day activities. She states that her lower back pain was worsening at the end of her shift on 15 October 2015, during which she was sitting on a chair with a faulty back. No such history was provided to either Dr Cvetkovski or Dr Sebez whom she saw on the same day.
Clinical notes drawn from Ms Petrovski’s general practitioners between March 2013 and March 2014 revealed evidence of right sciatic pain.
Ms Petrovski said that she did not report the injury at the time that it occurred because she thought the condition would improve and she failed to realise the extent of the injury at that time.
Dr Diwan who obtained the first history of the onset of symptoms in Ms Petrovski’s back in August 2014 suggested that the onset occurred when she was on a break at work.
The Arbitrator accepted that if the incident on 21 August 2014 occurred, Dr Bodel accepted that it could have been the cause of her disc disruption.
Dr Carney observed that it would have been unusual for someone suffering from acute sciatica, or acute disc prolapse, to defer seeking medical treatment for 48 days. Dr Carney opined that if the incident occurred in the manner described, Ms Petrovski would have been in immediate pain. On the basis of an inaccurate history provided to him, Dr Carney concluded that it was more probable than not that the disc prolapse did not occur at work.
The Arbitrator concluded that given the failure to report the alleged incident to any doctor until 23 April 2015, coupled with the failure to report the incident to her employer until 29 July 2015, “raises serious doubts about the credibility of the applicant, such that her evidence as to the occurrence of the event on 21 August 2014 needs to be carefully considered” ([93]).
The Arbitrator accepted Dr Carney’s view that Ms Petrovski was suffering from a degenerative condition in her lumbar spine prior to commencing employment with Ikea. This was consistent with complaints to Dr Cvetkovski on 5 February 2014 and to Dr Sebez on 12 March 2014 regarding complaints of low back pain.
Ms Petrovski gave no explanation as to why she fixed on 21 August 2014 as the date of her injury. She did not report to either Dr Sebez or Dr Cvetkovski in October 2014 of any work related cause. Ms Petrovski continued in her employment with Ikea carrying out normal duties notwithstanding the claimed serious nature of the injury suffered in August 2014. When Ms Petrovski saw Dr Quinn, from June 2015, she provided a history that the pain in her back started in August 2014 as a result of the position she was sitting in a desk chair at work. There was no report to Dr Quinn of the injury resulting from a bending incident to pick up a pen.
The Arbitrator concluded that the first reported mechanism of the injury relied upon by Ms Petrovski occurred in the claim form signed on 29 July 2015. The mechanism of injury on which Drs Brennan, Bodel and Carney relied in giving their opinions was not made until 11 months after the claimed injury.
Ms Petrovski initially sought to rely on extensive evidence of a “nature and conditions” claim, that is, alleging that the general nature of her employment duties was the cause of her complaints of injury. That claim was abandoned at the hearing when it was apparent that there was no medical support for such a proposition.
For these reasons, the Arbitrator did not accept that Ms Petrovski discharged the onus of proof and found that Ms Petrovski failed to establish that she sustained an injury on 21 August 2014 as alleged.

GROUNDS OF APPEAL

Ms Petrovski alleges that the Arbitrator erred in:
(a)     his analysis of the medical evidence in determining that no incident occurred on 21 August 2014;
(b)     his analysis of the factual evidence in determining that no incident occurred on 21 August 2014, and
(c)     ascribing any weight to her assumptions with respect to a potential cause of her condition.

Ground one – that the Arbitrator erred in his analysis of the medical evidence in determining that no incident occurred on 21 August 2014

Ms Petrovski’s submissions

The Arbitrator accepted Dr Carney’s opinion which Ms Petrovski submits was based on two factors. Firstly, the fact of complaints of back pain on 5 February and 12 March 2014, and, secondly, an acceptance of Dr Carney’s view that it would be unusual for someone to defer seeing a doctor following the alleged incident until 8 October 2014 in the context of somebody suffering an acute disc prolapse.
There are no complaints of back pain in the clinical notes during the period between 5 February/12 March and 21 August 2014. Ms Petrovski submits this should be contrasted with a much shorter period, namely 21 August 2014 – 8 October 2014 which was the subject of concern expressed by Dr Carney.
Ms Petrovski acknowledged that she had prior back pain in early 2014 but stated it was transitory. It is an uncontested fact that she remained in employment until made redundant by her former employer and then undertook subsequent employment with Ikea without further complaint.
Ms Petrovski submits that the Arbitrator’s reasons failed to reveal any analysis or explanation to explain Ms Petrovski’s ability to continue working, in the absence of treatment, between 12 March 2014 and 8 October 2014.
All medical opinions accept that if the alleged incident on 21 August 2014 occurred, it was likely to have given rise to a disc prolapse.
No other frank episode has been identified as an alternative cause of Ms Petrovski’s disc prolapse. Accepting that the likely explanation for the prolapse was a mechanical or frank incident, “there would need to be evidence of another such incident and there was none.” The Arbitrator did not engage in his reasons with this argument.
The acceptance by the Arbitrator of a “poorly explained alternative medical case that the prolapse was present and due to a degenerative condition” which by implication was present from at least March 2014, not requiring treatment until October 2014, was an error and inconsistent with an assumption that the failure to seek treatment between August and October 2014 was unusual.
Ms Petrovski submits that the Arbitrator failed to give weight or any consideration to the course of treatment undertaken by her. As seen from the chronology following the alleged incident Ms Petrovski’s symptoms deteriorated. She sought treatment from her general practitioner and submitted to an MRI of the lumbar spine within two months of the alleged incident. Physiotherapy followed without benefit and then subsequent referral to Dr Diwan in February 2015. In February 2015 Ms Petrovski reported her employment as a causative factor. Her symptoms worsened concurrently necessitating a reduction in working hours and subsequently referral for a second neurosurgical opinion (Dr Brennan) who ultimately performed surgery in September 2015.
Having regard to the history cited in the preceding paragraph, the Arbitrator erred by accepting Dr Carney’s view that an absence of treatment between August and October 2014 was “unusual”.
The rejection of the opinions of Dr Bodel and Dr Brennan is an error in that the reasoning for rejecting their opinions is not explained “particularly where Dr Carney’s ‘unusual’ observation is a bald, unadorned statement and offends the rule with respect to the provision of expert opinion”.

Ikea’s submissions

Ms Petrovski’s submissions fail to reveal appealable error.
No error of the kind described in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 has been demonstrated. The Arbitrator afforded each fact significant weight and formed his opinion with due regard to the fact and the weight he ascribed to it.
The Arbitrator stated (at [95]) that he accepted the view of Dr Carney that Ms Petrovski was suffering from a degenerative condition in her lumbar spine prior to the commencement of her employment with Ikea. The justification for the acceptance of that fact was the complaints of low back pain, including mechanical low back pain and features of radicular symptoms, to Drs Cvetkovski and Sebez. There were also complaints of low back pain and right sciatica to Dr Kolmacic (Application to Admit Late Documents 5 October 2016).
Secondly, Ikea submits that the Arbitrator did not in fact accept Dr Carney’s view about the delay in seeking treatment. He merely recorded the doctor’s opinion on that issue. The Arbitrator’s reasons reveal that he was not provided with any explanation as to why Ms Petrovski fixed on 21 August 2014 as the date of her injury. He then referenced the uncontested evidence that there was no report of any work injury in 2014 and that Ms Petrovski continued working as normal despite the serious nature of the alleged injury.
The Arbitrator does not in fact state that it was unusual for Ms Petrovski to delay seeking treatment. He referred to, and relied on, the accurate and uncontested evidence that she provided no history of a work injury to any doctor until 23 April 2015, eight months after the alleged incident.
Ms Petrovski’s submission that there was no evidence of any other frank episode to explain Ms Petrovski’s condition fails to deal with the evidence of Dr Carney who diagnosed a degenerative condition. Dr Carney noted that the nature of the worker’s duties were not physically demanding and generally lighter than the activities of everyday life. Dr Carney concluded that the injury could have occurred whilst performing activities of daily living. Therefore contrary to Ms Petrovski’s submission, there was ample evidence that the injury could have occurred by means independent of her employment.
In terms of the opinions of Drs Bodel and Brennan, the Arbitrator did not reject their opinions, rather he did not accept the history and explanation provided to those doctors as described by Ms Petrovski. Ms Petrovski relied solely on the incident on 21 August 2014. If the Arbitrator did not accept that that incident took place, the opinions of Drs Bodel and Brennan could not stand.

Discussion and finding (ground one)

This appeal is brought pursuant to s 352 of the 1998 Act. Section 352(5) provides:
“(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.”
This is regrettably yet another appeal where the alleged errors of fact, law or discretion are not identified. Ms Petrovski’s submissions in substance merely reflect disagreement with the Arbitrator’s ultimate conclusions rather than identify appealable error. Practitioners are again reminded that an appeal under s 352 of the 1998 Act is not a review on the merits, but is characterised by the identification and correction of legal, factual or discretionary error.
As the Arbitrator correctly stated, in order for Ms Petrovski to succeed in these proceedings it was necessary for her to establish that the injuries she sustained occurred on 21 August 2014 when she bent over to pick up a pen. That was the way the case was pleaded and run.
Notwithstanding Ms Petrovski’s initial evidence implicating the general nature of her duties as a possible cause of the injury, she eschewed reliance on that evidence at the hearing, relying solely on the incident on 21 August 2014, as the cause of her injury. For the reasons that follow, the Arbitrator expressed serious doubts about Ms Petrovski’s credibility (Reasons at [93]). Ultimately the Arbitrator did not accept her evidence that the injury occurred on 21 August 2014. His reasons for reaching that conclusion are clearly and comprehensively dealt with in his reasons. In summary they are:
(a)     Ms Petrovski had a history of low back pain and right sided sciatica;
(b)     Ms Petrovski did not seek medical treatment until 8 October 2014;
(c)     she failed to provide any doctor with any history of a work related incident until 23 April 2015, eight months after the alleged incident, when she told Dr Diwan that her symptoms developed when she was “going on a break” (Reasons at [26]);
(d)     on 15 October 2014 Ms Petrovski gave a history to Dr Cvetkovski of “recurring back pain” (Reasons at [44]);
(e)     Ms Petrovski failed to report the alleged incident to her employer until 29 July 2015 (Reasons at [93]);
(f)      Ms Petrovski failed to provide any doctor with a history of bending over to pick up something at work until she told Dr Brennan that on 4 September 2015. Although she had seen Dr Brennan, on three prior occasions, Ms Petrovski made no mention of a work related injury (Reasons at [52]);
(g)     Ms Petrovski failed to reveal to Drs Brennan, Bodel and Carney a history of mechanical lower back pain and right sided sciatica until after clinical records revealing those complaints were obtained by the Commission;
(h)     after the clinical records became available, Ms Petrovski provided a further statement of evidence to the Commission that attempted to categorise the mechanical lower back pain as associated with kidney stones (Reasons at [52]);
(i)      she gave evidence to Ikea, in a meeting with Alison La Delfa, that she could not remember an exact incident and did not think there was anything in particular that caused her injury (Reasons at [56]), and
(j)      she gave inconsistent evidence in her own case that the general nature of her work was the cause of her lower back pain (Reasons at [70]-[71]).
Those findings were all open to the Arbitrator and reveal no error.
As I have said, the Arbitrator’s findings are based in part on an adverse credit finding concerning Ms Petrovski’s evidence. A finding by an Arbitrator based on credit will not be set aside lightly. In Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 (Devries) Brennan, Gaudron and McHugh JJ held (at 479):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
I have not been directed to any evidence of error of the kind identified in Devries in relation to the Arbitrator’s credit finding.
I do not accept the submission that the Arbitrator found that it was “unusual” for Ms Petrovski not to have sought treatment until 8 October 2014. The Arbitrator observed at [90] and [96] that Dr Carney made that observation. However, the Arbitrator’s findings were not dependent upon an acceptance of Dr Carney’s observation. He rejected Dr Carney’s opinion because it was dependent on the history that Ms Petrovski was injured on 21 August 2014, a history the Arbitrator did not accept.
Further, I reject the submission that the Arbitrator erred by not engaging in his reasons with the submission that no other frank episode had been identified to explain the cause of Ms Petrovski’s disc protrusion. There was no onus on the Arbitrator to identify an alternative cause of Ms Petrovski’s condition. That was because Ms Petrovski carried the onus of proof to establish that the injury occurred on 21 August 2014. That remained her onus throughout. It is a simple application of the principle that “he who asserts must prove”: Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 (per Murphy J at [2]).

Second, there was an alternative explanation for the protrusion, namely that Ms Petrovski suffered from a degenerative spinal condition as evidenced by Drs Brennan and Carney. Dr Carney concluded that the nature of Ms Petrovski’s duties were not physically demanding and generally lighter than the activities of everyday life. He opined that the injury could have occurred whilst performing activities of daily living. Therefore, as Ikea submits, there was ample evidence that the injury could have occurred by means independent of Ms Petrovski’s employment.
Ms Petrovski’s submissions make much of the fact that she was able to work without complaints of back pain for a substantial period after first complaining of back pain in February/March 2014 and prior to the alleged incident on 21 August 2014. In contrast, it was a much shorter period, namely a period of about seven weeks after the incident, before she sought medical treatment. Ms Petrovski’s complaint is that in the circumstances the Arbitrator placed too little weight on the absence of symptoms in the period between March and August 2014 and too much weight on the delay in seeking treatment.
The Arbitrator’s reasons must be read as a whole: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443-444. It is true that Ms Petrovski was undertaking normal duties in the period leading up to the alleged incident on 21 August 2014. However, it was relevant that she failed to seek treatment for a considerable period of time after what she alleges was an acute episode of disc protrusion and spinal nerve compression. Although not decisive of itself, it was one more telling factor militating against an acceptance that Ms Petrovski sustained a significant injury on 21 August 2014. I do not accept that the Arbitrator placed too much weight on that evidence.
I do not accept the submission that it was implicit from the Arbitrator’s reasons that he considered that the disc prolapse was present and untreated from at least March 2014. The Arbitrator made no finding to that effect, express or implied.
In terms of the opinions of Drs Bodel and Brennan, I accept Ikea’s submission that the Arbitrator did not reject their opinions, rather he did not accept the history and explanation provided to those doctors as described by Ms Petrovski. Ms Petrovski relied solely on the incident on 21 August 2014. Given that the Arbitrator did not accept that that incident took place, the opinions of Drs Bodel and Brennan could not stand.
For these reasons ground one fails.

Ground two – that the Arbitrator erred in his analysis of the factual evidence in determining that no incident occurred on 21 August 2014

Ms Petrovski’s submissions

The Arbitrator’s decision on injury when read with the entirety of the evidence is contrary to compelling inferences: Fox v Percy [2003] HCA 22; 214 CLR 118.
The Arbitrator erred in finding that the first report of the mechanism of injury relied upon by Ms Petrovski appeared in the claim form dated 29 July 2015. Ms Petrovski submits that the evidence revealed that the incident was witnessed by a co-worker named Rona. Further, Ms Petrovski submits that the claim form she submitted identified three parties to whom she had reported the injury prior to lodging the claim form. Ms Petrovski submits “to dismiss this evidence without reason is an error, in particular the failure to have due regard to the statement evidence of [Ms Petrovski] on which Ikea did not seek to cross-examine”: XCI Pty Ltd (in liq) v Thompson [2016] NSWWCCPD 58 (Thompson) and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie).
Ms Petrovski alleged that the Arbitrator erred by finding that no explanation was proffered as to why the date of 21 August 2014 was “fixed on” without in the course of the hearing affording Ms Petrovski an opportunity to address that issue. The Arbitrator erred by drawing an adverse inference on the basis of the delayed formal record of injury in circumstances where he did not address Ms Petrovski’s explanation, namely, that she had initially thought that she had pulled a muscle in her back and her failure to recognise the severity of her injury until her general practitioner recommended that she consider a workers compensation claim.

Ikea’s submissions

It is clear from the claim form that the first documented report of the mechanism of injury occurred in the claim form dated 29 July 2015.
As the Arbitrator explained at [93], the delayed report of injury raised doubts about the credibility of Ms Petrovski, such that her evidence as to the occurrence of the event on 21 August 2014 required careful consideration.
The Arbitrator did have regard to Ms Petrovski’s evidence but chose not to accept it.
That Ms Petrovski was not cross-examined was irrelevant. It was abundantly clear that her credit was in issue (T1.35, 8 December 2016).
The reference to Jaffarie does not support Ms Petrovski’s position. The Commission is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of evidence.
The Arbitrator’s conclusions were based on Ms Petrovski’s failure to notify her employer and her doctors of the relevant injury. Furthermore the Arbitrator’s findings on credit have not been challenged on this appeal.

Discussion and findings (ground two)

I accept the submission that the Arbitrator erred in finding that the first report of the mechanism of injury relied upon by Ms Petrovski appeared in the claim form dated 29 July 2015. The first documented report of the incident involving bending to pick up a pen was contained in the report of Dr Kuzmanovski on 27 July 2015, two days earlier. Although the Arbitrator was mistaken in that finding, nothing turns on it.
The fact that Ms Petrovski claimed that the incident was witnessed by a co-worker, named Rona, does not assist her on appeal. No witnesses to the incident were called by either side to give evidence. No adverse inference was drawn from that fact. However, the Arbitrator was left to determine the issues based on Ms Petrovski’s evidence and all other objective evidence to which I have previously referred.
I do not accept the submission that the Arbitrator dismissed Ms Petrovski’s evidence or failed to have regard to it. He had regard to it but he did not accept it. For the reasons that have been previously explained, the Arbitrator expressed serious reservations about accepting Ms Petrovski’s evidence. Ultimately he did not accept it because he found that it was so inconsistent with the objective evidence referred to at [101] above. There was no compelling inference to the contrary.
It is immaterial that Ms Petrovski was not cross-examined. There can be no doubt that her credit was clearly in issue in the proceedings. So much is evident from the transcript of the proceedings on 8 December 2016 (at T1.35) where the following extract appears.
“MR MALOUF: Certainly. As a reminder, Mr Arbitrator, we did state that the respondent's position is primarily one of a dispute regarding any injury to the lumbar spine arising out of or in the course of employment and with that there are some credit issues. I think I made that clear last time.”
Ms Petrovski’s reference to Jaffarie does not assist her case on appeal. In Jaffarie, Deputy President Roche held (at [291]):
“There is no right to cross-examination in the Commission (AluminiumLouvres & Ceilings P/L v Zheng [2006] NSWCA 34 at [37]; [2004] NSWCA 164; 4 DDCR 348). The respondent was not prevented from attacking Mr Jaffarie’s credit because counsel had not cross-examined him. Nor was the Arbitrator required to question Mr Jaffarie before making an adverse credit finding. A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848–849; Gaunt v Hooft [2009] WASC 36 [41]–[42]; Bauskis v Liew [2013] NSWCA 297 per Gleeson JA at [111] (Beazley P and Barrett JA agreeing).”
Ms Petrovski’s reliance on Thompson was not developed or explained. Thompson does not assist Ms Petrovski. In Thompson, unlike the instant case, the appellant’s counsel eschewed an opportunity to raise a credit issue concerning the delayed reporting of symptoms. As I have endeavoured to make clear (at [125]), in the proceedings before the Arbitrator, Ms Petrovski’s credit was very much in issue.
For the reasons given at [125], notwithstanding that Ms Petrovski was not cross-examined, her credit was in issue and there clearly was a credible body of substantial evidence that contradicted her evidence. As a question of fact, it was open to the Arbitrator to conclude that the objective evidence, which contradicted Ms Petrovski’s evidence, was to be preferred. No error is revealed in that finding.
I find it somewhat surprising that Ms Petrovski alleges that the Arbitrator erred by finding that no explanation was proffered as to why the date 21 August 2014 was “fixed on” without affording Ms Petrovski an opportunity to address that issue. These proceedings ran over three days. Causation was a major issue in the case. It is simply erroneous to submit that Ms Petrovski was not afforded an opportunity to address that issue. She was afforded every opportunity to address the issue and she did so. Her counsel made extensive submissions on the issue.
I also reject the submission that the Arbitrator failed to deal with Ms Petrovski’s explanation for the delay in reporting her injury, namely, that she thought that she had pulled a muscle in her back and failed to recognise the severity of the injury. The Arbitrator noted that explanation (at [20] of Reasons), however, for the reasons given he did not accept it. That was a question of fact that was open on the evidence and does not reveal error.
Usually such a finding should stand unless it is shown that the trial judge “has failed to use or has palpably misused his advantage” or acted on evidence which was “inconsistent with facts incontrovertibly established” or “glaringly improbable” (Devries).There is no evidence that such errors have occurred in the Arbitrator’s analysis of the evidence.
For these reasons ground two fails.

Ground three – that the Arbitrator erred in ascribing weight to Ms Petrovski’s assumptions with respect to a potential cause of her condition

Ms Petrovski’s submissions

In her statements of evidence of 4 March 2016 and 20 July 2016, Ms Petrovski identified aspects of her employment, which have been variously described as the “nature and conditions” of her employment, which she claimed had contributed to the worsening of her lumbar spine condition. Ms Petrovski submits that the Arbitrator erred in drawing an adverse inference with respect to that evidence.
It is submitted that that evidence describes Ms Petrovski’s observation as to its physical consequences. Ms Petrovski reached that view in the absence of a completed medical case. The medical case was completed with the provision of the reports of Dr Brennan and Dr Bodel, both of whom after having the advantage of considering Ms Petrovski’s treating clinical records concluded that causation was attributed to the acute episode on 21 August 2014.
Ms Petrovski’s view that her work generally might have caused her disc prolapse was irrelevant to the Arbitrator’s consideration. Further, it is submitted that the Arbitrator should have determined the matter having regard to the medical evidence “rather than assumptions made on medical issues by [Ms Petrovski] in her statement evidence”.

Ikea’s submissions

The weight the Arbitrator gave to the evidence concerning the nature and conditions of Ms Petrovski’s employment was not revealed in any particular finding identified by Ms Petrovski in her submissions. The Arbitrator (at [102]) merely identified the fact that Ms Petrovski gave evidence that her injuries were caused by the nature and conditions of her work. That was an entirely accurate summary of her evidence.
Ikea submits that, given the “slim and poor evidence” identifying any frank injury, as Ms Petrovski has of her own accord introduced competing evidence as to the cause of injury it must have diluted the power of the evidence proffered in support of her pleaded case. This evidence revealed a potential alternative cause to Ms Petrovski’s injuries. It would have been an appealable error for the Arbitrator not to have taken that evidence into account.
Ikea submits:
“It was not sufficient of [Ms Petrovski] to suggest, at Arbitration, that this was a muddying of the waters and that the medical evidence on causation would be preferred over [Ms Petrovski’s] own evidence. This is because the case on medical causation was entirely dependent upon [Ms Petrovski’s] own evidence about what happened at work.”
In giving the evidence referred to above, Ms Petrovski undermined the persuasiveness of her case to her own detriment. It was not an error for the Arbitrator to take this into account.

Discussion and findings (ground three)

I do not accept Ms Petrovski’s submissions. Ms Petrovski’s initial evidence as to the cause of her injury was a relevant matter for the Arbitrator to consider. This is a case in which medical causation was entirely dependent upon Ms Petrovski being accepted in relation to the alleged incident on 21 August 2014. It followed that any evidence, particularly Ms Petrovski’s own evidence proffering an alternative explanation for her injury, was undoubtedly a relevant matter for the Arbitrator to consider.
Ms Petrovski initially alleged that her injury was sustained as a result of the general nature and conditions of her employment. At the Arbitration hearing on 6 October 2016, she abandoned that claim focusing on the alleged incident on 21 August 2014 as the sole cause of her injury. As her counsel frankly conceded “there’s no medical basis to pursue [the nature and conditions claim]”. I accept Ikea’s submission that by maintaining that the cause of her injury was due to the conditions of her employment, until it became clear that there was no medical support for that contention, Ms Petrovski undermined the persuasiveness of the case she ultimately ran, namely that the injury occurred as a result of one particular frank episode on 21 August 2014.
Ms Petrovski’s submissions fail to reveal any inference or finding that was said to be erroneous other than to allege generally that the Arbitrator erred by taking the matters referred to in the preceding paragraph into consideration. I do not accept that submission. It was not an error for the Arbitrator to weigh that evidence. Although not a decisive factor, it was a relevant factor the Arbitrator was required to weigh together with all the objective evidence, in order to determine whether Ms Petrovski was to be accepted.
For these reasons ground three also fails.

ORDERS

The Arbitrator’s determination of 4 January 2017 is confirmed.

Judge Keating
President

10 May 2017