Rainbow Group Pty Limited v Carrabs
[2019] NSWWCCPD 58
•19 November 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Rainbow Group Pty Limited v Carrabs [2019] NSWWCCPD 58 |
| APPELLANT: | Rainbow Group Pty Limited |
| RESPONDENT: | Richard Carrabs |
| INSURER: | AAI Ltd t/as GIO – Agent for the Workers Compensation Nominal Insurer |
| FILE NUMBER: | A1-1812/19 |
| ARBITRATOR: | Ms J Bamber |
| DATE OF ARBITRATOR’S DECISION: | 31 May 2019 |
| DATE OF APPEAL DECISION: | 19 November 2019 |
| SUBJECT MATTER OF DECISION: | Whether certain findings of fact made by the Senior Arbitrator were available on the evidence; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; regarding contents of medical notes considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr Robert Mitas, solicitor | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr J Beran, of Counsel | |
| Care Compensation Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s Certificate of Determination dated 31 May 2019 is confirmed. |
INTRODUCTION
The respondent worker in this case, Mr Richard Carrabs, suffered an accepted injury, resulting in him requiring surgery to his lumbar spine. This case concerns whether Mr Carrabs’ post-operative use of crutches caused him to develop a consequential injury to his right shoulder. An assessment of this involves close consideration of Mr Carrabs’ statements, the medical evidence and relevant case law regarding consequential conditions.
BACKGROUND
Mr Carrabs was employed by the appellant, Rainbow Group Pty Limited, as a general labourer from July 2011. It is agreed that on 25 May 2012 in the course of his employment he sustained an injury to his lumbar spine when a bucket on an excavator struck him in the back. In earlier proceedings before the Commission (Matter Number 4080/13) the appellant agreed, inter alia, to pay the reasonable costs of lumbar surgery, comprised of a decompression and discectomy at L3/4 and L4/5[1]. This surgery was performed by Dr Diwan on 10 February 2015.
[1] ARD, p 36.
Mr Carrabs in the present proceedings alleges that because of the lumbar surgery he used crutches and as a consequence of this use he sustained a condition in his right shoulder, being supraspinatus tendinopathy.
On 4 April 2017 the appellant’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited (the insurer), declined liability for the claim for permanent impairment, declining any injury had been sustained to the right shoulder. The insurer relied on sections 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). The insurer at that time made an offer of settlement for permanent impairment suffered by Mr Carrabs to his lumbar spine and scarring as assessed by Dr Carney in a report dated 1 March 2017.[2]
[2] ARD, p 24.
On 13 June 2017 Mr Carrabs sought for the insurer to review their decision on the basis that his right shoulder had not been assessed by their doctor and referring to clinical notes indicating the right shoulder condition arose as a result of the use of crutches after the lumbar surgery.[3] The clinical notes of Dr Kuzmanovski were attached to that review application.
[3] ARD, p 30.
On 28 June 2017 the insurer responded again denying liability based upon ss 4 and 9A of the 1987 Act and also asserting that they did not “consider that [Mr Carrabs] right shoulder arose out of the accepted injury to your lumbar spine”.
On 12 April 2019 Mr Carrabs filed his Application to Resolve a Dispute (ARD). On 6 May 2019 the insurer filed its Reply.
On 20 May 2019, the matter was heard before Senior Arbitrator Bamber.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
Various documents in the evidence predate the onset of Mr Carrabs’ right shoulder complaints. These include, but are not limited to, the worker’s and employer’s injury claim forms, AMS A/Prof Hope’s general medical dispute assessment dated 5 August 2014, radiological reports of the lumbar spine, clinical notes from Saint Mary Family Clinic from June 2009 to 5 February 2013,[4] Dr Nagwa Youssef’s medical certificates in 2012 and up to 5 February 2013, and Rehab Options injury management reports and return to work plans. Given these documents predate the right shoulder pain, I do not address them here any further.
[4] ARD, pp 135–151.
There is no evidence that Mr Carrabs had ever suffered right shoulder pain before the lumbar surgery.
Mr Carrabs’ statements
I note that Mr Carrabs was not cross-examined at the hearing and his evidence was unchallenged.
Mr Carrabs’ ARD contains three statements. The first dated 6 February 2013 relates to the circumstances surrounding the injury to the lumbar spine. The second, dated 11 March 2014, deals with treatment he had from Dr Diwan, but is also not relevant as it predates the lumbar surgery and the use of the crutches. The third statement (entitled his second supplementary statement) is dated 24 January 2019 and in it Mr Carrabs confirms that on 10 February 2015 Dr Diwan performed on him a posterior decompression and rhizolysis at the L3-4 and L4-5 levels. This is the statement where Mr Carrabs provides details about his right shoulder injury.
Mr Carrabs states that he spent six days in hospital and was discharged home and told by Dr Diwan to use crutches for eight weeks. Mr Carrabs states that after this time he did not feel comfortable walking unassisted, especially on uneven surfaces and up and down stairs, so he continued to use the right crutch for a further eight weeks for stability. He says this was for all movement, even short distances such as from his bed to the bathroom.
Mr Carrabs further states:
“While on crutches I started to feel pain in my right shoulder. I thought it would go away once I stopped using the crutches, but this didn't happen. I told my general practitioner, Dr Kuzmanovski, about the pain in my shoulder. He told me that it was probably because of the crutches and should go away. When the pain did not go away he referred me for an ultrasound of the shoulder.
Even after I stopped using crutches I still had pain in my right shoulder. I suffer from constant pain, pain when I lie on my right shoulder, pins and needles throughout the arm, weakness and limited movement.”[5]
Treating medical evidence
[5] ARD, p 8.
Dr Kuzmanovski – General Practitioner
Dr Kuzmanovski is Mr Carrabs’ general practitioner from the Family Medical Clinic Rockdale. In a report to Mr Carrabs’ solicitors dated 13 February 2018 he refers to the lumbar surgery of February 2015 and states,
“In the post-operative period he was unable to walk without support and crutches were used for mobility. Because of the prolonged use of crutches he started developing pain in [the] right shoulder as documented in the clinical notes on 19 April 2016, 20 May 2016, 18 January 2017 and 29 August 2017.”[6]
[6] ARD, p 63.
In this report, the doctor reproduces his clinical note entries for these days as follows:
“Tuesday April 19 2016 12:45:55
Dr. B. Kuzmanovski
History:
He has been having problems with right shoulder pain. It started after the surgery.It might be related to the crutches of the surgery [sic].
Friday May 20 2016 12:52:02
Dr. B. Kuzmanovski
Visit type:Surgery Consultation
He has been having problems with the shoulders since he was wearing crutches.
…
Wednesday January 18 2017 13:08:34
Dr. B. Kuzmanovski
Visit type:
Surgery Consultation
History:
He has been treating the shoulder by the physiotherapist.Before the surgery he never had pain in the shoulder. It started after surgery when he was using crutches.
Tuesday August 29 2017 16:58:57
Dr. B. Kuzmanovski
Visit type:
Surgery Consultation
History:
He has been having problems with the right shoulder.The pain is still there. It did [sic] started from the crutches after the surgery.
Examination:
Shoulder examination Right:
flexion: full
extension: full
abduction: limited to 60 degrees
adduction: normal
internal rotation: limitedexternal rotation: limited
Reason for contact:
Right Shoulder pain”
After setting out the ultrasound findings Dr Kuzmanovski gives his opinion that Mr Carrabs developed a shoulder injury as a result of using crutches after the lumbar spine surgery.[7]
[7] ARD, p 64.
Dr Kuzmanovski’s clinical notes dated 25 March 2015 record that Mr Carrabs had his operation on 10 February 2015 and had just started physiotherapy and that he “is still walking rather gingerly and is unable to bend.” Zoloft and Endone continued to be prescribed.
The following entries are brief. On 13 May 2015 it is noted “Situation remains the same”. On 9 June 2015, the doctor records “low back pain has increased. He is doing physiotherapy but the pain is still there.” On 27 July 2015, the reason for contact noted was “anxiety/depression”. On 10 August 2015, the reason for contact was “low back pain” and a referral letter was given to the physiotherapist, Hasan Muhiddine.
Thereafter, there are attendances on 13 occasions in 2015 and 2016 when there is no mention of right shoulder pain. These attendances are for upper respiratory tract issues and back pain, but many entries do not state the reason for contact or provide any details of complaints, but they do refer to Endone being prescribed.
The first entry referring to right shoulder pain is on 19 April 2016 as noted above at [19].
Dr Kuzmanovski issued a medical report to Hannover Re in relation to a total and permanent disablement claim dated 18 January 2017 in which he does not make reference to the right shoulder.[8]
[8] ARD, p 99–101.
Allianz injury management plans 6 January 2015[9] and 20 November 2015[10] are in Dr Kuzmanovski’s records, but do not appear to have been signed by him, and only refer to a diagnosis about the lumbar spine.
[9] ARD, p 132.
[10] ARD, p 126.
In the Reply, there is a WorkCover NSW-certificate of capacity dated 31 July 2017, which makes no reference to the right shoulder and a second certificate dated 2 November 2017 which adds to the diagnosis “right shoulder pain”.
Ultrasound right shoulder
On 7 June 2016 at the request of Dr Kuzmanovski, Mr Carrabs underwent an ultrasound of his right shoulder. It was found that he had supraspinatus tendinopathy without a tear and pain was reproduced at the top of the arc but no impingement was identified.[11]
[11] ARD, p 54.
Physiotherapy
Mr Carrabs had physiotherapy treatment for his lower back pain. In a brief report dated 4 December 2018 Hassan Muhiddine, physiotherapist from Rockdale Physiotherapy & Sports Injury Centre, advised that the physiotherapy treatment started on 31 August 2015 and added “Richard was also treated for secondary shoulder pain that started after prolonged usage of crutches. During this period Mr Carrabs was also prescribed a home exercise program for [him] to perform at home for his injuries.”[12]
[12] ARD, p 61.
Dr Diwan – Orthopaedic Surgeon
Dr Nagwa Youssef referred Mr Carrabs to Dr Diwan. Reports from Dr Diwan dated 7 August 2012, 7 December 2012, 13 October 2014, and 26 October 2014 deal with the lumbar spine and do not refer to the right shoulder, which is consistent with Mr Carrabs’ assertion that he did not have a problem with the right shoulder before surgery.
Nerida Grewal, clinical nurse coordinator from Dr Diwan’s Department of Orthopaedic Surgery, St George Hospital, wrote a report dated 13 March 2015 in which she notes it is four weeks post-surgery and Mr Carrabs has moderate back pain and postural headaches, which improve somewhat when he lies down. The report details the medication regime and notes that Mr Carrabs “continues in quite some pain, and this is having a limiting effect on his mobility post-surgery”. There is no mention regarding crutches or of right shoulder pain.[13]
[13] ARD, p 227.
On 12 May 2015 Dr Diwan reported that Mr Carrabs did not have much improvement in his symptoms although his right leg pain had got a little bit better with physiotherapy.[14] Persistent neuropathic pain was recorded. There is no mention of crutches or the right shoulder.
Dr Diwan examined Mr Carrabs on 1 July 2015 and again on 9 September 2015, where neither crutches or the right shoulder are mentioned in the report.[15] In the latter report Dr Diwan noted that it appears Mr Carrabs’ pain was getting chronic in nature.[14] ARD, p 229.
[15] ARD, pp 232, 237.
Dr James Yu – Pain Specialist
Dr James Yu is an interventional pain specialist. He has supplied reports dated 21 April 2016 and 9 June 2016 noting that Dr Diwan referred Mr Carrabs to him for further management of persistent lower back and bilateral leg pain. He does not refer to use of crutches or the right shoulder. Dr Yu noted that Mr Carrabs developed depression, anxiety and stress since his back injury and was seeing a clinical psychologist weekly, called Zoran. It was noted he had severe fear avoidance and catastrophising. He had also been attending physiotherapy weekly. Dr Yu, on examination, found the range of movement in his lumbar spine was globally restricted. He had severe physical deconditioning. He recommended active physical therapy to focus on core strength and stretching exercises with ABC Exercise Physiology.[16]
[16] ARD, pp 241–243.
Dr Kafataris – Injury Management Consultant
Dr Kafataris is an injury management consultant engaged by the insurer who provided an IMC assessment report dated 5 April 2016.[17] The doctor did not have a history regarding the use of crutches or problems with the right shoulder. His report is dated two weeks before Dr Kuzmanovski first documents right shoulder pain. Dr Kafataris found his physical examination was complicated by a degree of guarding and abnormal illness behaviour. The upper limbs were not examined.
[17] ARD, p 110.
Dr Carney – Neurosurgeon
Dr Carney is a neurosurgeon engaged by the insurer to provide an independent medical examination. His report is partially redacted and dated 1 March 2017.[18] Dr Carney records the current symptoms suffered by Mr Carrabs and they include right shoulder and right arm pain. The doctor states that Mr Carrabs said he was on double crutches for a month and then a single crutch for three months mainly because of pain. Dr Carney also records that Mr Carrabs said “he injured his right shoulder using the crutches and now cannot hold his right arm out in front of himself for more than 20 seconds without it going numb.”[19]
[18] ARD, p 90.
[19] ARD, p 92.
It does not appear that Dr Carney examined Mr Carrabs’ right shoulder. He does not refer to the ultrasound.
Dr Carney states that the recovery from the operation was highly unusual for this procedure and the need for crutches is inexplicable.
Dr Carney did not assess whether there was any permanent impairment in the right shoulder.
Dr Guirgis – Orthopaedic Surgeon
Dr Medhat Guirgis, orthopaedic surgeon qualified by Mr Carrabs’ solicitor, provided a report dated 15 February 2017. Dr Guirgis answered questions in a second report dated 14 February 2019. In the first report, Dr Guirgis records the following history:
“Following the surgery, he was unable to support his weight on his right leg and used a stick held in his right hand for support for the 4 post-operative months after surgery. It was then that he also continued to complain of painful stiffness and heaviness of the right shoulder.”[20]
[20] ARD, pp 39–40.
The doctor also recorded Mr Carrabs’ complaint that he has “painful stiffness and heaviness of the right shoulder, with transient radiation of pins and needles from the shoulder down the right arm lasting for seconds and triggered by reaching with his right arm at the shoulder level.”[21]
[21] ARD, p 40.
Dr Guirgis performed a detailed examination of Mr Carrabs’ right shoulder, setting out in his report the range of movements compared to the left shoulder. He found:
“There was evidence of altered rhythm between glenohumeral and scapulothoracic movements. There was evidence of reduced abduction power against resistance. There was tenderness over the anterior half of the rotator cuff of the shoulder. The Cross Over Impingement Test; The Hawkins - Kennedy Impingement Test; and The Neer's Impingement Test were all positive.”[22]
[22] ARD, p 41.
Dr Guirgis included in his report a copy of the ultrasound report regarding the right shoulder and found:
“supraspinatus tendonitis in [the] right shoulder. He indicated to me that the problems in his right shoulder were dating back to the time of the initial injury and that they became highlighted following the surgery, as he was rendered unable to support his weight on his right leg and he had to use a stick held in his right hand for support. This lasted for the 4 post-operative months after surgery. It was since then that he continued to complain of painful stiffness and heaviness of the right shoulder.” [23]
[23] ARD, p 54.
Dr Guirgis assessed the permanent impairment of Mr Carrabs’ right shoulder at 6% WPI.
In a diagram of the body attached to the first report there is hand writing “Rt shoulder on crutches 4/12 [stick (indecipherable)]”.
In the second report Dr Guirgis was asked the question “Was it reasonably necessary for Mr Carrabs to use crutches after his lumbar spine surgery?” He replied no, but qualified this answer by stating:
“If using crutches would give the patient confidence to be able to ambulate, one should accept this aberration in favour of lack of early mobilisation that may lead to the development of serious and often life threatening complications of deep vein thrombosis and pulmonary embolism or the less serious complication of multifidus wasting.”[24]
[24] ARD, p 58.
Dr Guirgis was also asked whether Mr Carrabs sustained a right shoulder injury because of the use of crutches. The doctor answered:
“Yes. The constant over-loading of the single stance gait would cause repeated micro-straining/spraining of the shoulder muscles including the rotator cuff which would eventually culminate into macro-injury.” [25]
[25] ARD, p 58.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator noted the first question to be determined was the factual matter of when Mr Carrabs first suffered from right shoulder pain, noting Mr Carrabs held the onus of proof in this respect. The Senior Arbitrator found that the evidence of Dr Kuzmanovski and Dr Guirgis supported a causal link between the right shoulder symptoms and the use of crutches following the lumbar surgery. She noted the employer had no medical evidence challenging those doctors’ opinions. In these circumstances, notwithstanding the delay in a written record of right shoulder symptoms, the Senior Arbitrator found that Mr Carrabs had discharged his onus of proof and established the requisite causal connection on the balance of probabilities.
The respondent placed much weight on the absence of contemporaneous references to Mr Carrabs’ right shoulder injury in the medical notes. The Senior Arbitrator found Dr Kuzmanovski’s evidence compelling in support of Mr Carrabs’ assertion that his right shoulder became painful when he was using his crutches, whilst also noting his clinical notes were not a verbatim account of his consultations with Mr Carrabs. The Senior Arbitrator referenced Davis v Council of the City of Wagga Wagga[26] in finding that it was unremarkable that Dr Kuzmanovski would not have recorded a complaint of right shoulder pain, particularly as he told Mr Carrabs he thought it would go away once he finished using the crutches and given he was treating Mr Carrabs for the continuing lumbar symptoms after the surgery. The Senior Arbitrator rejected the employer’s submission that an inference should be drawn that Dr Kuzmanovski would have recorded right shoulder pain if he had been told about it due to other complaints, such as respiratory tract infections being noted.[27]
[26] [2004] NSWCA 34 (Davis).
[27] Reasons [68]–[69].
Applying Nguyen v Cosmopolitan Homes,[28] the Senior Arbitrator felt an actual persuasion that Mr Carrabs was telling the truth; that he felt shoulder pain when using crutches; he believed it would go away; he mentioned it to Dr Kuzmanovski who also thought it would go away and later when it did not he was referred for an ultrasound. The Senior Arbitrator found it is more likely than not on the balance of probabilities that the right shoulder symptoms would have first come on with the use of the crutches, rather than first appearing on 19 April 2016 spontaneously. The Senior Arbitrator further noted the respondent had conceded there is no other explanation for the development of right shoulder symptoms.
[28] [2008] NSWCA 246 (Nguyen).
The Certificate of Determination issued on 31 May 2019 records:
“1. As a result of the injury to the applicant’s lumbar spine on 25 May 2012 in the course of his employment with the respondent he developed a consequential condition in his right shoulder from the use of crutches.
2.The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess permanent impairment from injury on 25 May 2012 to the lumbar spine, scarring and right upper extremity (shoulder).
3.The documents to be referred to the Approved Medical Specialist are to include the Application to Resolve a Dispute, Reply and this Certificate of Determination/ Statement of Reasons.”
GROUNDS OF APPEAL
The appellant advances four grounds of appeal. They are as follows:
(a) Ground One: The Senior Arbitrator made a material error of fact in finding that the worker developed right shoulder pain during the period from 16 February 2015 to 8 June 2015.
(b) Ground Two: The Senior Arbitrator made a material error of fact in finding that the worker had told his treating doctor, Dr Kuzmanovski, that he was experiencing pain in his right shoulder prior to 19 April 2016.
(c) Ground Three: The Senior Arbitrator failed to give sufficient weight to the lack of contemporaneous evidence indicating that the worker was experiencing right shoulder pain during the period from 10 February 2015 to 19 April 2016.
(d) Ground Four: The Senior Arbitrator made an error of legal principle in finding the worker had discharged his evidentiary burden in establishing a causal connection between the worker’s lumbar surgery on 10 February 2015 and the development of right shoulder supraspinatus tendinopathy.
SUBMISSIONS
Appellant’s submissions
Ground One
The appellant submits the Senior Arbitrator erred in relying on the evidence of Dr Kuzmanovski to determine when Mr Carrabs first developed right shoulder pain. The appellant submits Dr Kuzmanovski’s evidence (both in the clinical material and in the specific report to address this issue) provided no definitive answer to the critical question of ‘when’ and could only support a finding that the right shoulder pain developed during the crutches use period if Dr Kuzmanovski stated that either:
(a) During the consultation of 19 April 2016, the worker provided Dr Kuzmanovski a history of right shoulder pain during the crutches use period; or
(b) As a result of some prior (unrecorded) conversation or conversations, Dr Kuzmanovski was informed by the worker that right shoulder pain developed during the crutches use period.
The appellant submits the doctor’s phrase “He has been having problems with right shoulder pain. It started after the surgery” does not allow for a conclusion that the worker’s right shoulder pain must have arisen during the crutches use period, rather it encompasses any period between 16 February 2015 and 19 April 2016 and could refer to any period from 8 June 2015 (after which the worker ceased using crutches) until the date of the consultation.
The appellant submits the absence of evidence from Dr Kuzmanovski of when precisely he was told of the manifestation of pain in Mr Carrabs’ right shoulder ought to have been given substantial weight by the Senior Arbitrator in considering whether the worker had discharged the onus of proof in establishing a causal connection between the lumbar spine surgery and the alleged right shoulder injury. The Senior Arbitrator’s reliance on Dr Kuzmanovski’s evidence in determining that the right shoulder pain manifested during the crutches use period was therefore erroneous.
Ground Two
Ground Two relates to Ground One, in that it argues the Senior Arbitrator’s error led to the erroneous finding that Mr Carrabs’ pain first manifested during the crutches period.
The appellant submits that although Dr Kuzmanovski speculated as to a causal connection between the right shoulder pain and the use of crutches, that opinion was not necessarily predicated upon some prior, unrecorded conversations between Mr Carrabs and Dr Kuzmanovski, as the Senior Arbitrator had assumed. The appellant submits there is no evidence to indicate that Dr Kuzmanovski was relying on information provided to him prior to 19 April 2016, and in particular no evidence that Dr Kuzmanovski was aware of any complaint of right shoulder pain by the worker during the crutches use period.
The appellant submits the Senior Arbitrator’s comment that it would “not be remarkable” that that Dr Kuzmanovski made no record of the worker’s prior complaints of shoulder pain, only bears any meaning if it was assumed that the worker had first told Dr Kuzmanovski about his right shoulder pain at some stage prior to 19 April 2016. The appellant submits that in the absence of evidence to indicate that prior conversations between Mr Carrabs and Dr Kuzmanovski took place in respect of his right shoulder pain, it was not open to the Senior Arbitrator to make the finding that such a discussion took place prior to 19 April 2016.
Ground Three
The appellant submits that the Senior Arbitrator fell into error by failing to have proper regard to the lack of objective contemporaneous evidence, in preferring the non-contemporaneous evidence of Mr Carrabs that his right shoulder pain developed during the crutches use period, or indeed at any stage prior to 19 April 2016.
The appellant submits that it was incumbent on the Senior Arbitrator, in accordance with the principles in Department of Education and Training vIreland,[29] to weigh the probative value of Mr Carrabs’ witness statement drafted almost 4 years after the key events, as against the absence of any objective contemporaneous evidence from medical clinicians as to any alleged right shoulder complaints. The appellant further submits the Senior Arbitrator paid insufficient regard to the lack of statements in support from Mr Carrabs’ friends or family to corroborate complaints of right shoulder pain while using crutches.
[29] [2008] NSWWCCPD 134 (Ireland).
Ground Four
In Ground Four, the appellant submits for the reasons outlined above that the Senior Arbitrator fell into error in finding that the worker had discharged his onus of proof in accordance with the principles of Nguyen.
Respondent’s submissions
Ground One
Mr Carrabs disputes that there was a material error of fact, submitting the Senior Arbitrator has not overlooked material facts or given undue weight to certain evidence to reach a conclusion that is wrong. Mr Carrabs relies on the principles regarding the nature of the appeal process involving factual error enunciated in Raulston v Toll Pty Ltd,[30] applying Whiteley Muir & Zwanenberg Ltd v Kerr[31] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[32]), Davis v Ryco Hydraulics Pty Ltd,[33] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.[34]
[30] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[31] (1966) 39 ALJR 505, 506.
[32] [1996] HCA 140; 140 ALR 227.
[33] [2017] NSWWCCPD 5, [67] per Keating P.
[34] [2001] FCA 1833.
Mr Carrabs disputes the appellant's submission that the Senior Arbitrator only relied on Dr Kuzmanovski's evidence to determine when the worker first developed right shoulder pain, noting the Senior Arbitrator’s reliance on Mr Carrabs’ own evidence.
Mr Carrabs disputes the submission that Dr Kuzmanovski was silent on exactly when he experienced right shoulder pain, noting various evidence that supported the finding that it began during the use of crutches phase. He further disputes the appellant’s submission that Dr Kuzmanovski said “nothing definitive” as to the question of when he first developed right shoulder pain.
Whilst Mr Carrabs does not concede any deficiency in the opinion of Dr Kuzmanovski, he notes that a deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence.[35] Mr Carrabs submits that the Senior Arbitrator considered Dr Kuzmanovski’s evidence together with his own evidence and found he was telling the truth in respect of the emergence of pain in his right shoulder when he began using crutches. Such a finding was correctly made in circumstances where the appellant did not seek to cross-examine Mr Carrabs and his evidence remained unchallenged. As such, it is submitted that Ground One should be dismissed.
[35] Rhoden v Wingate [2002] NSWCA 165 at [55]–[73].
Ground Two
Mr Carrabs disputes the appellant’s submission that the Senior Arbitrator had erred in finding he had discussed his right shoulder pain with Dr Kuzmanovski prior to 19 April 2016. Mr Carrabs noted he was never cross-examined by the appellant and as such it was not open to the Senior Arbitrator to make any adverse credibility findings against him. As such, the Senior Arbitrator’s finding that he was telling the truth, should stand.
Mr Carrabs refers to the cases of Nominal Defendant v Clancy[36] and Mason v Demasi[37] in relation to the interpretation of Dr Kuzmanovski’s clinical notes. Mr Carrabs’ submits the Senior Arbitrator’s finding at [74] of her Reasons contained no material error as Dr Kuzmanovski's records should not be considered more than rough notes in determining when the right shoulder pain was first reported, the clinical notes dated 20 May 2016 and 17 January 2017 stated the right shoulder pain began when the worker was using the crutches and his statement evidence was not challenged. On this basis, it is submitted that the Senior Arbitrator did not err in finding that Mr Carrabs told his treating doctor that he was experiencing pain in his right shoulder prior to 19 April 2017, and Ground Two should be dismissed.
[36] [2007] NSWCA 349, [54]–[55].
[37] [2009] NSWCA 227, [2] (Mason).
Ground Three
Mr Carrabs disputes the appellant’s submission that the sole evidence indicating he developed right shoulder pain during the crutches period was Mr Carrabs’ statement “while on crutches I started to feel pain in my right shoulder.” Mr Carrabs relies on various evidence for this submission, including a physiotherapist’s report, history taken in Dr Carney’s 1 March 2017 report and Dr Guirguis’ second report dated 14 February 2019.
Mr Carrabs further submits the Senior Arbitrator addressed the principles in Ireland and provided reasons as to why the lack of contemporaneous evidence was not determinative of when his pain began. Mr Carrabs submits that he has met the requisite onus of proof and notes the appellant’s failure to proffer any alternate explanation for Mr Carrabs’ right shoulder condition whatsoever.
Ground Four
Mr Carrabs refers to his submissions in respect of the grounds above in disputing Ground Four.
PRINCIPLES ON APPEAL/RELEVANT LEGAL PRINCIPLES
The first three grounds of appeal all allege that the learned Senior Arbitrator made errors of fact in reaching the conclusion that Mr Carrabs suffered a consequential condition to his right shoulder as a result of the use of crutches post operatively. As described above, Mr Carrabs had suffered injury to his lumbar spine in 2012 which ultimately led to lumbar surgery on 10 February 2015. The final appeal ground alleges that the learned Senior Arbitrator made an error of legal principle in finding that Mr Carrabs had discharged his evidentiary burden in establishing the causal connection between the alleged consequential condition in his right shoulder and the need to use crutches after lumbar surgery. Pausing here, ground four in its terms does not accurately reflect Mr Carrabs’ case. Mr Carrabs has not alleged that his right shoulder condition was related to the lumbar surgery itself, rather that it came about as a result of his usage of crutches after the lumbar surgery.
Given the learned Senior Arbitrator’s factual findings are in contest, the principles which apply in such matters are worth setting out in detail
The appeal principles are found in s 352(5) of the 1998 Act and relevantly provide as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The power to disturb a finding of fact in the application of s 352(5) of the 1998 Act was considered by the Commission in Raulston. In Raulston, Roche DP stated the following principles regarding s 352(5) appeals:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(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’.”[38] (emphasis added)
[38] Raulston, [19].
The factual findings which are under challenge by the appellant involve a challenge to the approach taken by the learned Senior Arbitrator when considering Mr Carrabs’ statement and that of the medical witnesses and in particular the general practitioner, Dr Kuzmanovski. The medical notes in particular were subject to much scrutiny by the parties and in particular by the appellant.
In considering such questions, this Commission has applied the reasoning of Kirby P (as he then was) in Kooragang Cement Pty Limited v Bates[39] where his Honour said as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped.”[40] (emphasis added)
[39] (1994) 35 NSWLR 452 (Kooragang).
[40] Kooragang, 463–464.
The relationship of the right shoulder condition as a consequential condition to the use of crutches after the lumbar surgery, was a matter for the Arbitrator and was a question of fact, in accordance with the principles set out above. This requires a consideration of all of the facts, that is the medical evidence and the unchallenged evidence of Mr Carrabs and the application of common sense by the decision maker in deciding whether or not Mr Carrabs has discharged his burden of proof and that the facts have been established to the decision maker’s satisfaction. Clearly there is a temporal gap between the time Mr Carrabs was using crutches post operatively and the first recorded complaint in the medical notes.
Given the close scrutiny of the medical notes and how they were treated by the learned Senior Arbitrator, it is essential to consider the established principles regarding how the treatment notes of medical practitioners are to be considered.
In Mason Basten JA said as follows:
“2. First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)the health professional who took the history has not been cross-examined about:
(i)the circumstances of the consultation;
(ii)the manner in which the history was obtained;
(iii)the period of time devoted to that exercise, and
(iv)the accuracy of the recording;
(b)the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)the record did not identify any questions which may have elucidated replies;
(d)the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.
3. The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.”[41]
[41] Mason, [2]–[3].
In Davis Mason P said as follows in relation to the assessment of medical notes:
“35. Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall.
36. One can also envisage several reasons why the early hospital records make no mention of the mechanics of the fall. They had little to do with the diagnosis and treatment of an obviously serious injury. The plaintiff ought in fairness to have been given the opportunity to explain the entries if (which I doubt) they were inconsistent with his later testimony.”[42]
[42] Davis, [35]–[36].
One key difference in this case as opposed to Mason and Davis is this. In both of those matters the medical records were used to impugn the credibility of the injured person. In this case there was no allegation by the appellant that Mr Carrabs’ history as recorded in his statements was wrong, incorrect or misleading by reference to the lack of recorded complaints in the medical notes. In many respects the appellant in this case, in light of their acceptance of Mr Carrabs’ statement, has a much harder task in deploying the medical records to undermine Mr Carrabs’ evidence. In any event, the remarks of Basten JA and Mason P regarding how medical records are to be treated by the finder of fact are immediately relevant to how the learned Senior Arbitrator dealt with that aspect of the case.
Discussion
Before undertaking a consideration of the four appeal grounds, it is worthwhile to set out in terms those matters which were not in contest. These matters were:
(a) that Mr Carrabs sustained an injury to his lumbar spine on 25 May 2012. On this date he was struck in the back by the bucket of an excavator;
(b) that as a result of this injury, Mr Carrabs undertook lumbar surgery, a decompression and discectomy at the L3/L4 and L4/L5 levels on 10 February 2015;
(c) post surgery, Mr Carrabs used crutches for a period of approximately 16 weeks;
(d) Mr Carrabs has asserted that at some time after the lumbar surgery he experienced pain in his right shoulder;
(e) the first recorded complaint of right shoulder pain appears in Dr Kuzmanovski’s notes on 19 April 2016;
(f) there was no challenge made by the employer with respect to Mr Carrabs’ statement being inaccurate or wrong. In particular, no issue was taken that Mr Carrabs used crutches for the period stated in what the Senior Arbitrator described as his third statement dated 24 January 2019, and
(g) Mr Carrabs led no evidence from friends or family to corroborate complaints of shoulder pain.
GROUND ONE: The Senior Arbitrator made a material error of fact in finding that the worker developed right shoulder pain during the period from 16 February 2015 to 8 June 2015
This appeal ground makes a very explicit criticism of the learned Senior Arbitrator’s finding of the development of right shoulder pain during the precise period, namely 16 February 2015 to 8 June 2015. The history, as detailed above, was that on 10 February 2015, Mr Carrabs had his lumbar surgery and remained in hospital for a period of 6 days thereafter, that is until 16 February 2015. The history is that Mr Carrabs then used crutches for a period of 16 weeks.[43] The appellant employer at first instance argued that the right shoulder pain only manifested itself some 14 months after the surgery and 10 months after the worker ceased using crutches, which places the onset of pain at or about 19 April 2016, which is the date of a consultation with Dr Kuzmanovski where the first recorded complaint of shoulder pain can be found. The appellant employer alleges that the Senior Arbitrator’s reliance on the evidence of Dr Kuzmanovski (see [4.8] of the appellant’s submissions in chief) was erroneous and indeed that the doctor gave no evidence as to the question of when Mr Carrabs first experienced right shoulder pain.
[43] Mr Carrabs’ statement, ARD, p 8, [7].
In terms of the appellant employer’s submission, no reference or attention is made to the actual finding made by the learned Senior Arbitrator which was as follows:
“Applying Nguyen, I feel an actual persuasion that Mr Carrabs is telling the truth; that he felt shoulder pain when using crutches, he believed it would go away, he mentioned it to Dr Kuzmanovski who also thought it would go away and later when it did not he was referred for an ultrasound. I find it is more likely than not on the balance of probabilities that the right shoulder symptoms would have first come on with the use of the crutches, rather than first appearing on 19 April 2016 spontaneously. As the respondent has conceded there is no other explanation for the development of right shoulder symptoms.”[44] (emphasis added)
[44] Reasons, [74].
This finding by the learned Senior Arbitrator came after a detailed examination of the evidence, and in particular the medical evidence including medical records about which much was made by the appellant employer. Before arriving at this finding, not only was the lack of contemporaneous complaints in the medical records known and remarked upon by the learned Senior Arbitrator, but also reference was made to relevant authorities regarding the care with which medical records are to be treated.[45] Mr Carrabs’ statement was also closely considered.
[45] Reasons, [69], discussion about Davis at [35].
The finding ultimately made by the learned Senior Arbitrator at Reasons [74] was plainly available on the evidence and consistent with the authorities and involved no error. To the contrary, and consistent with the passage extracted above from Kooragang, the learned Senior Arbitrator meticulously undertook a review of the evidence and was satisfied on the civil standard that the right shoulder symptoms first occurred while Mr Carrabs was using crutches. The appellant’s submissions regarding the medical notes pay no or insufficient regard to the cautions about such material arising from the Court of Appeal decisions in Mason and Davis. The appellant’s submissions suffer from the deficiency that they urge upon the decision maker a reading of the medical notes which is to the effect that they constitute a complete if not verbatim account of all complaints made by Mr Carrabs to the doctor. Mason and Davis clearly stand for the proposition that this is not a sound approach. The learned Senior Arbitrator, quite properly in my opinion, dealt with not only the medical notes but the appellant’s submissions about them in a reasonable and dispassionate manner consistent with the authorities I have referred to above.[46] Given that the appellant employer did not challenge this history which had been given by Mr Carrabs, this factual finding was clearly available and the making of it involved no error. Indeed to make the contrary finding, as urged by the appellant employer, would involve the decision maker in rejecting Mr Carrabs’ unchallenged statement which would constitute the type of error described in Raulston above.
[46] Reasons, [68]–[70].
Ground One is not made out and is consequently dismissed.
GROUND TWO: The Senior Arbitrator made a material error of fact in finding that the worker had told his treating doctor, Dr Kuzmanovski, that he was experiencing pain in his right shoulder prior to 19 April 2016
This appeal ground suffers from similar deficiencies as I have identified in Ground One. Namely, the appellant employer is advancing a case which is based upon a literal reading of Dr Kuzmanovski’s notes, contrary to authority. Secondly, this appeal ground has little or no regard for the unchallenged evidence of Mr Carrabs which was to the effect that he first suffered pain in the right shoulder whilst he was using crutches post-operatively.
It is clear that the learned Senior Arbitrator not only reviewed the notes, but also Mr Carrabs’ history in his third statement. It is also clear that the learned Senior Arbitrator had in her mind whilst reviewing the medical notes the cautions that cases such as Davis provide with respect to how medical notes are to be treated.
What the learned Senior Arbitrator in fact did was to carefully review the evidence and, consistent with the passage extracted from Kooragang,[47] having accepted Mr Carrabs’ statement that he first experienced pain in the right shoulder whilst using crutches, established that the chain of causation was unbroken until the matter is ultimately dealt with by Dr Kuzmanovski who ordered the ultrasound which was undertaken on 7 June 2016. This finding, having regard to Mr Carrabs’ unchallenged evidence was plainly available to the learned Senior Arbitrator having accepted the following statement:
“While on crutches I started to feel pain in my right shoulder. I thought it would go away once I stopped using the crutches, but this didn't happen. I told my general practitioner, Dr Kuzmanovski, about the pain in my shoulder. He told me that it was probably because of the crutches and should go away. When the pain did not go away he referred me for an ultrasound of the shoulder.”[48] (emphasis added)
[47] Reasons, [11].
[48] Reasons, [15].
Consistent with the passage outlined from Kooragang above, the learned Senior Arbitrator reviewed the evidence and reached the view that she did on the following bases:
(a) she found that Dr Kuzmanovski’s clinical notes were not a verbatim account of all the details of his consultations with Mr Carrabs;[49]
(b) she accepted Mr Carrabs’ unchallenged evidence that he felt shoulder pain whilst using crutches and mentioned it to Dr Kuzmanovski who thought it would go away, and
(c) Dr Kuzmanovski was essentially treating Mr Carrabs for his continuing lumbar symptoms post surgery and declined to draw any inferences with regards to the absence of complaints of right shoulder pain prior to 19 April 2016.[50]
[49] Reasons, [68].
[50] Reasons, [69].
This approach to the medical records, as I have found in Ground One, involves the precise application of cases such as Davis and Mason.
This approach does not reveal error. This approach does not adopt the literal reading of the medical notes which was urged at first instance and now on appeal by the appellant. The learned Senior Arbitrator was correct to find that the notes were not a verbatim or complete account, indeed the decision points out two further matters about Dr Kuzmanovski’s records. Firstly, the doctor was Mr Carrabs’ treating general practitioner over an extended period. And secondly, it is clear that Mr Carrabs having complained of right shoulder pain, the doctor does not express any doubt as to its relationship to the post-operative use of crutches.
No error is disclosed and Ground Two is thus not established.
GROUND THREE: The Senior Arbitrator failed to give sufficient weight to the lack of contemporaneous evidence indicating that the worker was experiencing right shoulder pain during the period from 10 February 2015 to 19 April 2016
This appeal ground suffers from the same deficiencies as identified in Grounds One and Two above in terms of how the medical records are dealt with by the appellant. As I have found above, a literal reading of the notes is not the appropriate approach consistent with the Court of Appeal authorities set out above. This ground complains that if one were to review the medical records during the identified period, that is from 10 February 2015 until 19 April 2016, that there is no recorded complaint of right shoulder pain. A review of the evidence reveals that this is true. This ground therefore seeks to elevate the status of the medical records to be above the other evidence, which is clearly referring to Mr Carrabs’ evidence himself. This issue was dealt with by the learned Senior Arbitrator at Reasons [67]–[70].
Additionally however, this ground is supported by a submission which states that the sole evidence regarding the commencement of right shoulder pain was Mr Carrabs’ statement.[51] The submission then goes on to say that the statement of 24 January 2019 was made many years after the alleged development of right shoulder symptoms and “the worker’s recollection had potentially been coloured by Dr Kuzmanovski’s view that it could be related to the use of crutches.[52]
[51] ARD, p 8.
[52] Appellant’s submissions in chief, [6.2].
The difficulty with this submission is clear. At no stage either below or in this appeal has the appellant taken issue with the veracity of the history of the onset of right shoulder symptoms given by Mr Carrabs. No submission has been put that he is mistaken or lying, but that is the purport and effect of this submission. If this was the case that the appellant wanted to pursue, these allegations should have been put in terms and Mr Carrabs given the opportunity to respond. The case has been expressly pursued under this ground that Mr Carrabs’ statement regarding the onset of right shoulder pain is either wrong, cannot be relied upon or has been adopted by him because of what the doctor said to him. No submission was made below or on this appeal that Mr Carrabs’ statement cannot be believed and it is not available now for the appellant to make a submission to that effect. This type of situation was dealt with in Davis in the following respects:
“There are obviously matters of degree in cases such as the present. But this case fell, in my view, on the wrong side of the line. In Boston Clothing Co Pty Ltd v Margaronis (1992) NSWLR 580 Kirby P said (at 590):
I am inclined to agree with Burke CCJ that the practical rule of fairness enshrined in the Browne v Dunn principle required that the suggested contradictions in the worker's history should have been put to the worker before they were used as a basis not of challenging the opinions resting on them but of challenging the truth of the worker's evidence. No such challenge was put to the worker by counsel for the employer in his economical cross-examination. If the commissioner himself intended to rely upon the evidence in the way he did, procedural fairness required that he should have drawn the suggested inconsistencies which were troubling him to the notice of the worker or of counsel. Then the worker would have the opportunity of explaining the suggested inconsistencies. Her counsel would have had the chance of calling oral evidence from her medical advisers to supplement the written opinions which they had provided. In the course adopted by the commissioner there was a real risk of injustice to the worker.”[53]
[53] Davis, [38].
The submissions made by the appellant in this case, while not as stark as this example from Davis, fall very close to it. The rule in Browne v Dunn[54] would have required at the very least, as described by Kirby P above, that the challenge to the worker’s evidence should have been put, and put in terms so that it could have been answered. As Kirby P described above, often these issues are matters of degree but this case, given the arguments asserted by the appellant, falls on the wrong side of the line.
[54] (1893) 6 ER 67.
Additionally, the appellant’s submission that the sole evidence of the complaint of right shoulder pain was to be found in Mr Carrabs’ statement is disputed by Mr Carrabs. At [26] of the Notice of Opposition, Mr Carrabs sets out in terms other pieces of evidence where complaints of shoulder pain are recorded. This evidence, in particular paragraphs (b), (c) and (d) in [26] of Mr Carrabs’ submissions have not been referred to at all by the appellant either in chief or in their further written submissions. Whilst these records fall outside of the period referred to in appeal ground three, they are supportive of the allegation that right shoulder pain developed whilst crutches were being used, it is just that the records themselves are dated outside of that period. Given that no issue has been taken with the veracity of Mr Carrabs’ evidence in this regard, the fact that there is no “contemporaneous evidence” during the period referred to in this appeal ground is immaterial. For the reasons outlined above with respect to grounds two and three, this appeal ground places too much weight upon a strictly textual reading of the medical notes and involves an allegation contrary to Mr Carrabs’ interests, which allegation was never put to him, namely that he was either lying or mistaken.
Ground Three has not been established and is therefore dismissed.
GROUND FOUR: The Senior Arbitrator made an error of legal principle in finding the worker had discharged his evidentiary burden in establishing a causal connection between the worker’s lumbar surgery on 10 February 2015 and the development of right shoulder supraspinatus tendinopathy
As I have described above, this appeal ground does not accurately describe or reflect Mr Carrabs’ case. Mr Carrabs does not allege that his right shoulder condition was related to the lumbar surgery itself. Rather, his case is that his right shoulder problem is a consequential condition which arose as a result of his use of crutches after the lumbar surgery. I will therefore deal with this ground on the basis that it is alleging that Mr Carrabs did not discharge his evidentiary burden in establishing a causal connection between the use of crutches post operatively and what is said to be the consequential condition that he developed in his right shoulder.
The appellant submits under this ground that the learned Senior Arbitrator fell into error in finding that Mr Carrabs had discharged his onus of proof in accordance with Nguyen. In effect this appeal ground relies upon the establishment of Grounds One to Three as making good the assertion that Mr Carrabs has failed to discharge his burden of proof.
The appellant in terms alleges that the principles established in Nguyen were not satisfied by the learned Senior Arbitrator.
In Nguyen, McDougall J described the principles regarding the discharge of the burden of proof in the following manner:
“44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.
45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that ‘[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 – 162, and Mason J (with whom Brennan J agreed) in the same case at 168.
46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.
47. In Malec vJC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.
48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.
49. There are nonetheless judicial pronouncements, again of high authority, that suggests that proof on the balance of probabilities can be achieved merely by weighing the competing probabilities. The authorities, and the competing views, were considered extra-curially by Carruthers J in ‘Some observations on the standard of proof in marine insurances cases, with special references to the ‘Popi M’ case’ (1988) 62 ALJ 199; and by Hodgson J, again writing extra-curially, in ‘The scales of justice: probability and proof in legal fact–finding’ (1995) 69 ALJ 731.
50. In the earlier article, Carruthers J referred to ‘the objective probability school’ and the ‘belief school’. The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such – and – such has taken place or will do so’ (see Lord Simon of Glaisdale in Davies v Taylor [1974] AC 207 at 219). The latter, as its name suggests, describes the approach laid down by Dixon J in Briginshaw.
51. In the later article, Hodgson J suggested that the two approaches could be combined. He did so in a way that, I think, is consistent with what I have said above as to Malec. He said at 732 that ‘if, on the basis of adequate material concerning circumstances of a particular case, the tribunal [of fact] believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.
52. In my view, that is the approach that should be adopted in the resolution of disputed questions of fact. It is something of particular significance where a resolution of the disputed question depends upon the drawing of inferences from entirely circumstantial evidence. It also accommodates the requirement that attention be paid to the seriousness of the fact in issue, or the consequences of finding that it has occurred.
53. It is of course trite to observe that, in an appropriate case, circumstantial evidence may lead to satisfaction beyond reasonable doubt; and, a fortiori, on the balance of probabilities. However, in considering the probative quality of circumstantial evidence, there is a significant distinction to be observed according to whether proof is required beyond reasonable doubt, or on the balance of probabilities. In the former case, the tribunal of fact must be able to exclude any reasonable hypothesis that stands against the existence of the fact sought to be proved. In the latter case, it is not necessary to do so. See Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5. There is a qualification, in the ‘post hoc propter hoc’ field of discourse. I deal with that, in the context of causation, at [63] below.
54. In Bradshaw, the Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) said at 5 that in considering whether circumstantial evidence proves the existence of a fact on the balance of probabilities, ‘it is enough in [sic: obviously, ‘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.... 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...’. That does not however authorise a court ‘to choose between guesses... on the ground that one guess seems more likely than another or the other’, as Dixon CJ pointed out in Jones v Dunkel at 304.
55. The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”[55]
[55] Nguyen, [44]–[55].
The learned Senior Arbitrator dealt with Nguyen at Reasons [74]. It is to be noted that this section of the decision comes after a detailed consideration of the evidence at Reasons [64]–[73].
The appellant’s submissions do not in terms in Ground Four specify the error of law in terms of the learned Senior Arbitrator’s application of Nguyen although it is tolerably clear that had Grounds One, Two or Three, either individually or collectively been made out, that would support the argument advanced under Ground Four. In Grounds One, Two and Three the appellant has sought to impugn the findings of fact made by the learned Senior Arbitrator. For the reasons outlined above, these allegations have been unsuccessful. Given that Ground Four was based upon the establishment of the preceding three grounds (either singularly or collectively) and given that I have rejected Grounds One to Three, Ground Four, which places reliance upon Grounds One to Three, also falls away.
In any event, when I observe the relevant sections of Nguyen[56] and compare those principles to the approach adopted by the learned Senior Arbitrator, far from being an error in approach, rather we have seen the learned Senior Arbitrator in a systematic and meticulous manner consider and weigh the evidence, consistent with authority, before reaching her ultimate finding at Reasons [74] which was to the effect that she accepted Mr Carrabs’ evidence. In this regard, I am comparing what McDougall J said at Nguyen [55] to the process which was undertaken by the learned Senior Arbitrator. In particular, the learned Senior Arbitrator has dealt with the opinions of Drs Guirgis and Kuzmanovski which support the causal link between the right shoulder symptoms and the use of crutches after the surgery.[57] It is noteworthy that there was no competing medical hypothesis for Mr Carrabs’ right shoulder condition and having weighed the evidence, the finding ultimately made at Reasons [78] was available on the evidence and the arrival at this finding did not involve the learned Senior Arbitrator in any error. The view ultimately settled upon by the learned Senior Arbitrator involved:
(a) the close consideration of the medical records and their lack of recorded complaints until 19 April 2016, which examinations she was directed to by the appellant’s submissions;
(b) the application of principle and authorities to those records (in particular Davis);
(c) the review of Mr Carrabs’ statement and the resolution of what he said with what appeared in the medical notes, and finally
(d) the concurrence of opinion between Drs Kuzmanovski and Guirgis regarding their opinions as to the aetiology of Mr Carrabs’ right shoulder complaint.
[56] Nguyen, [44]–[55].
[57] Reasons, [75]–[78].
This was a logical approach based upon the evidence presented at the hearing. No error is involved and Ground Four is thus not made out.
DECISION
As I have described in above in the principles to be applied on appeal, Raulston requires that the findings of fact by the first instance decision maker must be wrong. The facts as found by the learned Senior Arbitrator were available on the evidence and no error has been disclosed in the reasoning process which led to the ultimate findings. The learned Senior Arbitrator has considered the material facts and has made no error in doing so and has applied appropriate weight to the evidence in reaching her conclusion. The facts as found cannot be displaced.
The Certificate of Determination dated 31 May 2019 is thus confirmed.
Judge Phillips
PRESIDENT
19 November 2019
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