Qantas Airways Ltd v Coleman - [2020] NSWWCCPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Qantas Airways Ltd v Coleman [2020] NSWWCCPD 42
APPELLANT:	Qantas Airways Ltd
RESPONDENT:	Matthew Coleman
INSURER:	Self-insured
FILE NUMBER:	A1-5643/19
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	30 January 2020
DATE OF APPEAL DECISION:	30 June 2020
SUBJECT MATTER OF DECISION:	Alleged factual error: the drawing of inferences; an Arbitrator’s duty to provide adequate reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Beran, counsel
Hall & Wilcox
Respondent:
Mr L Morgan, counsel
LHD Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 30 January 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Matthew Coleman (the respondent) was employed by Qantas (the appellant) as a long-haul flight attendant from 6 June 1988 to 6 March 2019. He suffered an employment injury, the occurrence of which is not in issue, on 20 May 2016. He had been working on a 15 hour flight from Sydney to Santiago, Chile. When the passengers on the flight had disembarked, the respondent retrieved his carry-on bag, which weighed about 15 kilograms, from an overhead locker. As he was sliding it from the locker, it slipped and fell, causing him to take its weight. The respondent suffered injury to his dominant right arm and shoulder, which is undisputed. He stated that he reported to the Customer Service Manager on the flight that he had injured his right shoulder and elbow, and also that he had an uncomfortable numbness sensation and tingling in both hands, including the fingertips. The appellant only operated two flights per week between Sydney and Santiago, so the respondent was in Santiago for a number of days before there was a flight back to Sydney. He did not see a doctor in Santiago. He said there were no reserve cabin crew in Santiago and he had to work on the return flight to Sydney, with other members of the crew performing the heavier duties for him. He said the Customer Service Manager failed to record the symptoms in his left hand of which he complained.[1]
[1] Respondent’s statement 25/10/19, [3]–[11], Application to Resolve a Dispute (ARD), p 1.
On returning to Australia the respondent came under the care of doctors in Sydney and on the mid-North Coast where he lived.[2] He submitted a claim form dated 31 May 2016, which referred to the symptoms in the right arm, but not the left.[3] The appellant accepted liability for the injury to the right arm. Dr Nicklin, a plastic and reconstructive surgeon, diagnosed right-sided ulnar neuropathy secondary to cubital tunnel, for which he operated on 15 September 2016.[4] Around Christmas time in 2016 the respondent developed clawing of his left hand. Dr Nicklin diagnosed ulnar nerve impingement and recommended urgent left elbow surgery. This was performed by Dr Darveniza on 10 March 2017.[5] The appellant declined liability for injury to the left arm in a notice dated 24 March 2017.[6] The respondent was also referred to Dr Sher, an orthopaedic surgeon, for treatment of his right shoulder. Dr Sher operated on the shoulder on 5 April 2017, a procedure involving arthroscopic acromioplasty, rotator cuff repair and biceps tenodesis.[7]
[2] Respondent’s statement, [12]–[20].
[3] ARD, pp 4–6.
[4] ARD, pp 57–58.
[5] Respondent’s statement, [24]–[26].
[6] ARD, pp 8–11.
[7] ARD, p 52.
The respondent resumed restricted duties from September 2017 and normal duties from February 2018. He took a voluntary redundancy on 6 March 2019.[8]
[8] Dr McGlynn’s report 6/3/19, ARD, p 19.
The respondent’s solicitors made a claim for lump sum compensation on his behalf, supported by reports from Dr McGlynn and Dr Bodel. The claim was in respect of 17 per cent whole person impairment involving the left and right upper extremities.[9] The appellant disputed the claim in a notice dated 2 September 2019. It accepted ‘injury’ to the right upper extremity but not to the left upper extremity. It stated that permanent impairment resulting from the accepted right sided injury was not greater than 10 per cent and therefore was not compensable under s 66(1) of the 1987 Act.[10]
[9] ARD, p 12.
[10] ARD, pp 13–17.
These proceedings were listed for an arbitration hearing on 23 January 2020. Mr Morgan appeared for the respondent and Mr Beran for the appellant. The matter proceeded on the basis of the written material. Both counsel addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 30 January 2020, accompanied by 11 pages of reasons.[11] In respect of the left upper extremity, which was disputed, the Arbitrator found that the respondent had injured his left ulnar nerve in the employment injury on 20 May 2016. He referred the matter to an Approved Medical Specialist to assess whole person impairment in respect of the right upper extremity (shoulder, ulnar nerve) and the left upper extremity (ulnar nerve). This appeal is brought against that decision.
[11] Coleman v Qantas Airways Limited [2020] NSWWCC 27 (reasons).

ON THE PAPERS

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

THRESHOLD MATTERS

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

THE ARBITRATOR’S REASONS

The Arbitrator noted the only matter in issue was “[w]hether the [respondent] sustained an injury to his left upper extremity in the course of his employment with the [appellant] on 20 May 2016”. The claim for permanent impairment compensation was pursued, together with an order that the appellant meet the cost of the respondent’s reasonable medical expenses for treatment of his left arm.[12] The Arbitrator noted that he allowed the appellant to rely on two independent medical reports, from Dr Harrington and Dr Powell, as they were obtained for different claims.[13]
[12] Reasons, [6]–[7].
[13] Reasons, [11].
The Arbitrator recited the evidence in the parties’ cases, including briefly summarising the reports from the treating doctors, together with Dr McGlynn and Dr Bodel (qualified by the respondent) and Dr Harrington and Dr Powell (qualified by the appellant). He summarised the submissions made by counsel.
The Arbitrator quoted a passage from the decision in Field v Department of Education and Communities in which Roche DP said:
“It is for the tribunal of fact to assess the reliability of the evidence against the ‘contemporary materials, objectively established facts and the apparent logic of events’.”[14]
[14] [2014] NSWWCCPD 16, [38].
The Arbitrator noted the contemporary materials included a claim form and a “Statement of Events”, both completed some 10 days after the incident, that referred to injury to the right upper limb but not the left. The respondent provided no explanation for why he did not refer to the left upper limb in these documents, which he completed. The Arbitrator referred to the history recorded by Dr Hirschowitz, the initial doctor consulted after the respondent returned to Australia. The doctor’s certificate dated 31 May 2016, and his notes from 2 June 2016, were both consistent with complaints involving symptoms in both hands. This was also consistent with the bilateral nerve conduction studies performed on 6 June 2016. Dr Hirschowitz’s certificate dated 7 June 2016 was consistent with symptoms in both hands.[15] Dr Best’s (a treating surgeon) report to Dr Hirschowitz dated 14 June 2016 referred to bilateral tingling and numbness in both hands. This was consistent with Dr Hirschowitz’s record of symptoms. The Arbitrator said there was a consistent record of left hand symptoms for almost a month following the incident on 20 May 2016.[16]
[15] Reasons, [61]–[64].
[16] Reasons, [65].
The Arbitrator referred to the apparent logic of events:
“I consider it reasonable and understandable that although the [respondent] was pulling his bag out from the overhead locker, once it began to fall he also used his left arm to try to stop the bag from continuing to fall. Although the [respondent’s] right arm took most of the weight because that was the arm that he was using to try to pull the bag from the locker, there would have been at least some strain upon his left arm.”[17]
[17] Reasons, [66].
The Arbitrator referred to Nguyen v Cosmopolitan Homes (NSW) Pty Ltd, in which McDougall J referred to a fact finder making a rational choice between competing hypotheses, with an actual persuasion of the existence of the fact.[18] The respondent had suffered from no previous left hand or arm symptoms; the weight of the falling bag took him by surprise and the incident caused immediate symptoms in both upper limbs. The main concern was right sided symptoms. It was not necessary that the respondent provide a “word perfect” description of the incident. The Arbitrator said that he felt an actual sense of persuasion that the incident caused injury to the left upper limb on 20 May 2016.[19]
[18] [2008] NSWCA 246, [55].
[19] Reasons, [67]–[68].
The Arbitrator said this was supported by Dr Nicklin, who treated the respondent for his ulnar nerve injuries. Dr Nicklin diagnosed the condition and charted a course of treatment, he was in the best position to provide an opinion on causation. Dr Nicklin noted the bilateral median and ulnar neuropathy on the nerve conduction studies. He considered the left sided pathology was part of the respondent’s initial presentation. He said the onset of symptoms around the time of the incident suggested the incident was the initiating cause and a significant factor. The worsening of left sided symptoms about seven months after the incident, with the onset of clawing, did not alter Dr Nicklin’s opinion that the incident was the initiating cause.[20]
[20] Reasons, [69]–[73].
The Arbitrator preferred the opinion of Dr Nicklin to the appellant’s doctors. He said that Dr Harrington’s opinion was compromised by his understanding that the respondent did not have left arm symptoms when the nerve conduction studies were performed on 6 June 2016. This understanding was inconsistent with the records of Dr Hirschowitz and Dr Best. Dr Powell’s opinion was based on an incorrect understanding that the respondent did not have left arm symptoms until about six months after the workplace incident. The Arbitrator said that the respondent initially concentrated on the symptoms that caused the greatest concern, being those involving the right ulnar nerve and shoulder. This explained why there was little or no reference to the left arm in the initial reports of Dr Nicklin, Dr Best and the physiotherapist, Ms Robertson.[21]
[21] Reasons, [74]–[77].
The Arbitrator referred to the discussion of ‘personal injury’ in Kennedy Cleaning Services Pty Ltd v Petkoska, as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.[22] He stated he was satisfied there was a sudden pathological change to the left ulnar nerve, notwithstanding the symptoms were not initially as severe as those in the right arm. The Arbitrator made a finding that the respondent sustained injury to his left ulnar nerve in the course of his employment on 20 May 2016. He made orders referring the matter to an AMS for assessment of permanent impairment in respect of the injury to the right and left upper extremities. He also ordered the appellant to pay reasonable medical expenses in respect of the left ulnar nerve, to include the surgery performed on 10 March 2017.[23]
[22] [2000] HCA 45; 200 CLR 286, [39].
[23] Reasons, [78]–[82].

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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.”
In Raulston v Toll Pty Ltd,[24] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[25] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[26]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[27]
[24] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[25] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[26] [1996] HCA 140; 140 ALR 227.
[27] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[28] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[29]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[30]
[28] [2017] NSWWCCPD 5, [67].
[29] [2001] FCA 1833, [28].
[30] Raulston, [20].
In Northern NSW Local Health Network v Heggie[31] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[32]
[31] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[32] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[33] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[34]
[33] [2020] NSWCA 54 (Hill).
[34] Hill, [20].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)     The Arbitrator erroneously inferred that the respondent worker’s left arm was involved in the incident on 20 May 2016. (Ground No. 1)
(b)     The Arbitrator determined the respondent worker sustained an injury as defined in s 4 of the 1987 Act, to the left arm based upon the erroneous inference made, referred to in (a) above. (Ground No. 2)
(c)     The Arbitrator failed to provide adequate reasons addressing the nexus between the ulnar neuropathy of the left arm (pathology) and the incident on 20 May 2016. (Ground No. 3)

GROUND NO. 1

Appellant’s submissions

The appellant submits the evidence of the respondent did not directly imply that he used his left arm in the activity in which he sustained injury. It refers to the respondent’s statement at [6] to [8]. It submits the report of injury form completed by the respondent’s supervisor did not mention injury to the left arm.[35] It submits the ‘Statement of Events’ filled out by the respondent dated 30 May 2016,[36] and the respondent’s claim form dated 31 May 2016,[37] did not mention injury to the left upper limb.[38] The appellant submits that “none of the histories taken by any of the treating or independent doctors note the involvement of the left arm in the process of removing the bag from the overhead locker”.[39]
[35] Reply, pp 1–8.
[36] Reply, pp 9–10.
[37] ARD, pp 4–6.
[38] Appellant’s submissions, [10]–[13].
[39] Appellant’s submissions, [14].
The appellant refers to the reasons at [66] (quoted at [13] above). It submits that the “finding is one of inference”. The appellant refers to Seltsam Pty Ltd v McGuiness[40] and Fuller-Lyons v New South Wales.[41] The appellant says it accepts that an inferential finding of fact can be made in the absence of direct evidence. It submits that there was “clear and cogent evidence in the respondent’s statement and contemporaneous evidence which did not include the involvement of the left upper limb. It submits “the only finding of fact that was available to the Arbitrator was that the [respondent] used his right arm, and his right arm alone, to remove the bag from the overhead locker”.[42]
[40] [2000] NSWCA 29; 49 NSWLR 262 (McGuiness), [84]–[88].
[41] [2015] HCA 31 (Fuller-Lyons).
[42] Appellant’s submissions, [16].
The appellant additionally refers to the reasons at [76], which state in part:
“I agree with a submission made by Mr Morgan that the [respondent] initially concentrated on those injured parts of his body that caused him the most concern and this is a reason why there is less reference to the left arm in the first few months following the injury.”
The appellant submits the above submission by the respondent’s counsel was “… not grounded in any evidence of the [respondent] whatsoever. The acceptance of a mere assertion by counsel without direct evidence is an error”.[43]
[43] Appellant’s submissions, [17]–[18].
The appellant refers to the passage from the decision in Raulston quoted at [19] above. It submits the inferential finding made by the Arbitrator was wrong as it was not supported by evidence. It submits this submission is supported by Dr Nicklin’s opinion that the respondent’s symptoms may have occurred regardless of the work injury; there was an alternate finding available on admitted evidence.[44]
[44] Appellant’s submissions, [19]–[20].

Respondent’s submissions

As a ‘procedural matter’, the respondent submits the appellant has deleted two items from the chronology. These are that on 31 May 2016 Dr Hirschowitz issued a medical certificate giving a diagnosis of bilateral carpal tunnel syndrome and injury to the right shoulder, and that on 6 June 2016, Dr Simon performed nerve conduction studies that identified bilateral abnormalities involving carpal tunnel syndrome and ulnar neuropathy, in each instance worse on the right.[45] The respondent also submits that, in a general sense, the appeal involves “a regurgitation of arguments advanced by the appellant” at first instance.[46]
[45] Respondent’s submissions, [2.1].
[46] Respondent’s submissions, [2.7].
The respondent refers to the contemporaneous evidence of the nerve conduction studies, which show “neurological symptomatology affecting both upper limbs more on the right than the left”. The Arbitrator noted there was no suggestion of a pre-existing condition affecting either upper limb. The respondent submitted at first instance that the respondent’s evidence in his statement was consistent with the medical reporting.[47]
[47] Respondent’s submissions, [2.9(b)]–[2.9(d)].
The respondent states the appellant, at first instance, submitted that the claim form was inconsistent with the injury involving the left arm. The respondent addressed this, arguing he was given medical advice to treat the more symptomatic right upper extremity first. The respondent submits the appellant does not address this evidence. The respondent submits the appellant’s reading of the respondent’s statement involves acceptance that the respondent sought to lift a 15 kilogram bag down from an overhead locker, using only one arm, “without any interaction with the contralateral limb”. He submits this “beggars belief”. He submits the appellant’s submission on this argument involves an “inability to explain such mechanics”.[48]
[48] Respondent’s submissions, [2.9(e)]–[2.9(j)].
The respondent submits the appellant’s argument fails to explain “immediate complaints of bilateral symptomology [sic] in previously asymptomatic limbs”. The respondent submits that this symptomatology, in conjunction with the respondent’s evidence, constituted an appropriate basis to draw the inference which Ground No. 1 challenges.[49] The respondent also submits that the evidence of Drs Harrington and Powell, in the appellant’s case, was “in effect useless” as neither of those doctors proceeded on a correct recorded history.[50]
[49] Respondent’s submissions, [2.9(k)]–[2.9(l)].
[50] Respondent’s submissions, [2.9(m)].
The respondent refers to Raulston and the need for the appellant to demonstrate the Arbitrator’s decision was wrong if the appeal is to succeed. The Arbitrator’s conclusion was based on the totality of the evidence, both the respondent’s statement and the clinical material at the time. The respondent submits the evidence pointed “in one direction only”, that there was a pathological consequence to the left upper extremity as a result of the incident.

Consideration

In Bradshaw v McEwans Pty Ltd, the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”[51]
[51] (1951) 217 ALR 1, [5].
The above passage from Bradshaw was described as “the test to be applied” in Luxton v Vines.[52]
[52] [1952] HCA 19; 85 CLR 352 per Dixon, Fullagar and Kitto JJ, [8].
The appellant’s submissions refer to McGuiness in which Spigelman CJ said:
“90. Proof on the balance of probabilities, indeed on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage [1875] 1 AC 278 at 279:
‘My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.’
91. Causation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’, to use Wigmore’s simile. (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R[1990] HCA 56; (1990) 170 CLR 573 at 579).”[53]
[53] McGuiness, [90]–[91].
The High Court, in Fuller-Lyons referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts”.[54]
[54] [2015] HCA 31 (Fuller-Lyons), [46].
In considering whether an inference should be drawn, it is necessary to have regard to the evidence as a whole, “the united force of all the circumstances”. In a civil case this consideration is on the probabilities (see [36] above).
The appellant submits that, because the respondent’s statement did not contain direct evidence of the involvement of his left arm in the incident, the “only finding of fact that was available” was that the respondent “used his right arm alone, to remove the bag from the overhead locker” (see [25] above).
The respondent’s statement did not exclude the possibility that he used his left arm at the time of the incident. It was simply silent regarding what use, if any, was made of the left arm at that time. An inference that the left arm was involved in some way was not inconsistent with direct evidence from the respondent. The evidence as a whole included the history (accepted by the Arbitrator) that the respondent had no left upper limb symptoms prior to the incident, and that following the incident, he experienced “immediate symptoms in both upper limbs”.[55] It included the history, recorded in Dr Hirschowitz’s certificate dated 31 May 2016, of bilateral carpal tunnel syndrome symptoms, consistent with involvement of the left hand at that time. It included the fact that Dr Hirschowitz, in early June 2016, referred the respondent for nerve conduction studies involving both upper limbs. It included Dr Hirschowitz’s record on 2 June 2016 of symptoms in both hands. It included the nerve conduction studies performed by Dr Simon on 6 June 2016, in respect of which Dr Simon concluded:
“In total, these neurophysiological studies are consistent with: 1) bilateral carpal tunnel syndrome of moderate severity on the right and mild on the left; and 2) bilateral moderate-to-severe ulnar neuropathy at the elbow, worse on the right.”[56]
[55] Reasons, [68].
[56] ARD, pp 429–431.
The Arbitrator recognised that the claim form and the ‘Statement of Events’ (see [24] above) were completed by the respondent and did not refer to injury to the left upper limb (see the reasons at [61]). The appellant’s submissions on appeal also refer to the lack of mention of left upper limb symptoms in the incident report completed by the respondent’s supervisor (see [24] above). The respondent’s statement specifically stated that, when he reported the matter to his manager in Santiago on board the aircraft, he mentioned uncomfortable numbness and tingling in the fingers of both hands. He said he was unaware of why this was not included in the incident report.[57] There is no evidence from the appellant to contradict that of the respondent on this point. I cannot see that this evidence about the incident report assists the appellant’s case in the circumstances. At best, from the appellant’s point of view, it is neutral.
[57] Respondent’s statement, [9], ARD, p 1.
The appellant submits it is assisted by Dr Nicklin’s opinion that the “symptoms may have occurred regardless of the work injury”.[58] This does not take appropriate account of Dr Nicklin’s opinion on causation in the same report:
“… symptoms in the left arm were noted at the same time as the right sided symptoms and came on after the initial injury at work. No history of direct injury to the left arm.”
“… the onset of symptoms around the time of the work place injury suggests that this was the initiating cause and thus significant factor.”
[58] Dr Nicklin’s report 7/2/17, ARD, p 64.
The appellant also criticises the Arbitrator’s finding at [76] of the reasons, in which he accepted a submission on the respondent’s part that the respondent initially concentrated on those parts of the body that caused him most concern. The appellant submits it was erroneous to accept a submission that was not supported by evidence. The respondent submits this aspect was addressed in his statement.[59] The statement refers to a conversation with Dr Norrus, from the Pacific Palms Medical Centre. It states Dr Norrus advised the respondent to prioritise treatment for the right shoulder and elbow, and to deal with the left fingers later.[60] The date of this conversation is not specified in the statement. It does constitute evidence in support of the Arbitrator’s general statement at [76] to [77] of the reasons. The Arbitrator, in any event, was entitled to make findings “within the realm of common knowledge and experience”.[61] A conclusion that an injured person, in giving a medical history, would tend to give more attention to his most concerning problems would constitute such a matter.
[59] Respondent’s submissions, [2.9(f)].
[60] Respondent’s statement, [15], ARD, p 2.
[61] Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, [90].
Additionally, even if this error was made out, the appellant does not deal with whether, and in what way, it would affect the result. The most fundamental matters of history, going to proof of the left upper limb injury, were those discussed at [40] above, which were corroborated by contemporaneous records of complaint and treatment. This argument by the appellant is not made out.
The Arbitrator had regard to the contemporaneous medical material (see [40] above) which he described as “a consistent record of symptoms in the [respondent’s] left hand for almost a month following the incident on 20 May 2016”. This was in circumstances where the respondent had not, on the evidence, previously suffered from left upper limb symptoms. I additionally accept the respondent’s submission that, on the basis of common knowledge and experience, the mechanics of the incident as submitted by the appellant (that the respondent did not take any weight on his left arm) is exceedingly unlikely (it “beggars belief” to use the respondent’s more evocative term).
The inference drawn by the Arbitrator, that the left arm was involved in the incident, was available on the evidence. Consistent with the passage of Raulston quoted at [19] above, the appellant must demonstrate that the Arbitrator was wrong if it is to succeed on this ground. This the appellant has not succeeded in doing. The various attacks made by the appellant in support of Ground No. 1 are not made out. Ground No. 1 fails.

GROUND NO. 2

Appellant’s submissions

The appellant submits it was an error of law to make a finding of injury pursuant to s 4 of the 1987 Act, because this was based on “an erroneous inference”.[62]
[62] Appellant’s submissions, [21].

Respondent’s submissions

The respondent simply adopts its submissions made in respect of Ground No. 1.[63]
[63] Respondent’s submissions, [2.9(p)].

Consideration

For reasons given above, I have concluded that the inference the subject of Ground No. 1 was not drawn in error. It follows that Ground No. 2 fails.

GROUND NO. 3

Appellant’s submissions

This ground attacks the adequacy of the Arbitrator’s reasons, in support of the finding that the signs and symptoms referred to at [62] to [65] of the reasons were indicative of left arm pathology caused by the injury. It submits that where the inference regarding use of the left arm in the incident was an error of fact, it could not support the finding of causation. It is submitted the reasons did not address the fact that the pathology was ulnar neuritis. It submits the failure to provide reasons on this point was an error of law.[64]
[64] Appellant’s submissions, [22]–[23].

Respondent’s submissions

The respondent submits the proposition the appellant seeks to advance in this ground is difficult to understand.
The respondent’s submissions state the respondent described “identical symptomatology in both upper limbs immediately consequent upon a workplace incident”. From a logical point of view, the incident was the causative element of the symptoms in both upper limbs. This was confirmed by the complaints to the general practitioner, the hand surgeon Dr Nicklin, the Radiologist who conducted the nerve conduction studies and Dr Best.

Consideration

The submission that the finding, that the incident involved the left arm, involved factual error and could not support the finding on causation, depends on the acceptance of the arguments supporting Grounds Nos. 1 and 2. Those grounds have failed for reasons given above.
The symptoms the appellant specifically refers to are those described in the reasons at [62] to [65]. In general terms, these were the symptoms the respondent complained of when he returned to Australia, when consulting Dr Hirschowitz, Dr Simon (who conducted the nerve conduction tests) and Dr Best. They are the symptoms and signs which the Arbitrator found gave contemporaneous support to the allegation of injury to the left arm. They are the symptoms discussed at [40] above. The chain of reasoning, leading to the finding of injury to the left upper limb involving the ulnar nerve, is largely set out at [40] above.
The respondent’s history did not involve previous left upper limb symptoms. The accepted history was consistent with the respondent initially experiencing symptoms in both upper limbs, worse on the right but including the left, when the incident occurred. The earliest medical evidence, from Dr Hirschowitz in late May and early June 2016, records symptoms the doctor described as bilateral carpal tunnel syndrome, which the Arbitrator accepted as consistent with the presence of hand symptoms at the time. This led to a referral for bilateral nerve conduction studies. The studies were performed on 6 June 2016, Dr Simon’s description of the results is set out at [40] above. Dr Simon’s report on the studies included reference to “bilateral moderate-to-severe ulnar neuropathy at the elbow, worse on the right”.
The respondent was referred to Dr Nicklin, a plastic surgeon, who operated on the right cubital tunnel, releasing the ulnar nerve, on 15 September 2016.[65]
[65] ARD, p 58.
Dr Nicklin reported to the appellant on 7 February 2017, responding to questions asked of him.[66] The report is consistent with it being a response by Dr Nicklin for information regarding proposed surgery to the left upper limb. The doctor described the left ulnar pathology as being “documented in June 2016” and said he considered that pathology to be “part of his initial presentation”. He said that “the onset of symptoms around the time of the workplace injury suggests that this was the initiating cause and thus significant factor”. That surgery was carried out by Dr Darveniza on 10 March 2017. The chain of events, leading up to Dr Nicklin’s report dated 7 February 2017, dealing with causation of the injury to the left ulnar nerve, is set out in the Arbitrator’s reasoning.[67] The Arbitrator accepted the opinion of Dr Nicklin, a treating surgeon, in preference to the appellant’s medical case. He gave reasons for doing so.[68]
[66] ARD, p 64.
[67] Reasons, [62]–[75].
[68] Reasons, [71]–[75].
There is a helpful summation of the principles and authorities governing the obligation to give reasons in Pollard v RRR Corporation Pty Ltd.[69] The Arbitrator’s reasons complied with his obligation to give adequate reasons. They complied with his statutory obligation in this regard: NSW Police Force v Newby.[70]
[69] [2009] NSWCA 110 (per McColl JA, Ipp JA and Bryson AJA agreeing), [56]–[66].
[70] [2009] NSWWCCPD 75, [147]–[151].
Ground No. 3 fails.

CONCLUSION

The appellant’s grounds of appeal have all failed. The appeal does not succeed.

DECISION

The Arbitrator’s decision dated 30 January 2020 is confirmed.

Michael Snell

DEPUTY PRESIDENT

30 June 2020