Ross v State of New South Wales
[2014] NSWWCCPD 74
•11 November 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Ross v State of New South Wales [2014] NSWWCCPD 74 | ||
| APPELLANT: | Lorraine Elizabeth Ross | ||
| RESPONDENT: | State of New South Wales | ||
| INSURER: | QBE Insurance (Australia) Ltd | ||
| FILE NUMBER: | A1-749/14 | ||
| ARBITRATOR: | Mr G Egan | ||
| DATE OF ARBITRATOR’S DECISION: | 1 August 2014 | ||
| DATE OF APPEAL DECISION: | 11 November 2014 | ||
| SUBJECT MATTER OF DECISION: | Claim for compensation for a consequential condition; whether failure to consider evidence affected the outcome; alleged failure to give reasons; alleged failure to engage with medical evidence; failure to make orders for payment of compensation not claimed | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | MBT Lawyers | |
| Respondent: | HWL Ebsworth Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The respondent employer’s name is amended to State of New South Wales. 2. The Arbitrator’s determination of 1 August 2014 is confirmed. 3. No order as to costs. | ||
INTRODUCTION
This appeal involves a claim for compensation – hospital and medical expenses and a closed period of weekly compensation – for a consequential condition (a left ankle/foot condition) that has allegedly resulted from an accepted injury to the worker’s right knee.
BACKGROUND
The appellant worker, Lorraine Ross, worked for the respondent employer, wrongly sued as Mid North Coast Area Health Service, as a part-time medical records clerk. The correct legal identity of the respondent is State of New South Wales (see Schedule 1 of the Health Services Act 1997 and State of New South Wales v Bishop [2014] NSWCA 354 (at [26]–[28]).
Ms Ross injured her right knee in the course of her employment on 25 May 2000 and 29 March 2001. She underwent a meniscectomy and chondroplasty on 4 July 2001. The respondent accepted liability for the injuries and paid compensation accordingly.
On 14 August 2002, Ms Ross settled a claim for lump sum compensation in the former Compensation Court of NSW in the sum of $11,500 in respect of a 15 per cent permanent loss of use of the right leg at or above the knee plus $10,000 for pain and suffering under s 67 of the Workers Compensation Act 1987 (the 1987 Act). At that time, she remained at work on suitable duties.
Notwithstanding further incidents involving her right knee on 17 April 2003, when she slipped at work, and on 23 April 2003, when she injured her right knee while participating in approved rehabilitation at a gymnasium, Ms Ross remained at work until her suitable duties were withdrawn on 7 July 2004. The respondent’s insurer commenced voluntary payments of weekly compensation from 8 July 2004, which continued until 23 March 2005.
In February 2005, Ms Ross injured her left Achilles tendon/ankle when she fell as a result of her right knee giving way. X-rays on 8 April 2005 revealed degenerative bony spurring in the ankle. An ultrasound on the same day showed thickening and swelling of the Achilles tendon and a loss of the normal fibrillar architecture of the tendon that may have reflected focal tendinitis. The diagnosis was Achilles tendinitis.
On 6 March 2006, Ms Ross filed an Application to Resolve a Dispute in the Commission seeking weekly compensation from 23 March 2005 to date and continuing together with hospital and medical expenses particularised in a schedule. The claim alleged injuries to the right knee on 25 May 2000, 29 March 2001, 23 April 2004 and due to the nature and conditions of employment between 14 February 2000 and 7 July 2004, but made no claim in respect of the left ankle.
After a contested hearing, Arbitrator Hertzberg made an award in Ms Ross’s favour, based on the knee injury on 25 May 2000, for $111.32 per week from 23 March 2005 to date and continuing plus a general award for the payment of reasonable medical expenses incurred under s 60 on production of accounts or receipts (s 60 expenses).
On 16 October 2006, Ms Ross fell at home when her right knee gave way and she injured her left ankle and left knee. She was treated at the Coffs Harbour Health Campus where she was diagnosed as having suffered a “left ankle sprain”. She was subsequently treated, for various complaints, including her left ankle, at the Baringa Private Hospital.
On 17 July 2012, Ms Ross underwent a triple arthrodesis and bone graft to her left ankle at the hands of Dr Pepper, surgeon. She remained off work after this surgery until 9 November 2012 when she found part-time work at Toormina High School.
On 9 May 2013, the insurer issued a s 74 notice disputing liability. It asserted that, as the effects of the right knee injury had resolved and, as Ms Ross’s symptoms were due to progressive degenerative changes, ongoing treatment (for the right knee) was “no longer reasonably necessary” and that Ms Ross’s employment was “no longer a substantial contributing factor to the injury”.
The assertion that Ms Ross’s employment was no longer a substantial contributing factor to the injury was bad in law. As the Commission has explained on dozens of occasions, both in its decisions and in seminars, employment only has to be a substantial contributing factor to the injury not the consequences of the injury, such as the need for treatment (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWLR 725; Bielecki v Rianthelle Pty Ltd t/as Belfera [2008] NSWWCCPD 53 at [19]–[25]). It is most unsatisfactory that the insurance industry continues to repeat this fundamental mistake.
In a letter from her solicitors dated 27 November 2013, Ms Ross claimed:
(a) lump sum compensation for 15 per cent loss of use of her right leg at or above the knee and, for the first time, lump sum compensation in respect of an 11 per cent “whole person impairment in respect of her left lower extremity as a consequential loss of the injury to the right leg or knee” (these claims were ultimately abandoned at the arbitration hearing);
(b) weekly compensation for total incapacity from 17 July 2012 to 7 November 2012, the period during which she recovered from surgery to her left ankle/foot;
(c) weekly compensation at the maximum statutory rate from 17 July 2012 to date and continuing, and
(d) section 60 expenses “relating to surgery to her left ankle and foot and rehabilitation costs”.
Though it was not made clear in the letter, the claim for an increase in weekly compensation from 17 July 2012 was a claim for a review, under s 55 of the 1987 Act, of the award made in her favour by Arbitrator Hertzberg on 4 July 2006. To succeed with that claim, Ms Ross had to establish a “change in circumstances” since the first award (s 55(1)).
It should be noted that the Arbitrator’s reference (at [28]) to the principles discussed in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482, a case concerning applications for reconsideration under s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), was not appropriate. However, nothing turns on this error.
Though s 55 has been repealed, it continues to apply in the present matter because, as at 1 October 2012, Ms Ross was an “existing recipient of weekly compensation” and, as no work capacity assessment has been conducted, she remains entitled to compensation under Div 2 of Pt 3 of the 1987 Act “as if the weekly payments amendments had not been made” (cls 6 and 9 of Pt 19H of Sch 6).
On 11 December 2013, the insurer disputed liability for this claim. It relied on the matters identified in its s 74 notice of 9 May 2013. With respect to the claim for compensation as a result of the condition of Ms Ross’s left foot, the insurer said that liability had never been accepted “due to the issues never being reported or documented under [Ms Ross’s] Workers Compensation Claim”. The insurer’s offer was therefore “nil”.
On 17 February 2014, Ms Ross filed an Application to Resolve a Dispute (the Application) with the Commission in which she sought weekly compensation at the maximum statutory rate from 17 July 2012 to date continuing, incurred hospital and medical expenses of $19,237.69 (starting on 26 August 2011), and future hospital and medical expenses for a proposed knee replacement operation due to the deterioration of her right knee as a result of the original injury.
Though it was not made clear in the pleadings, the Application effectively had three separate and distinct parts: first, the application for an increase (by way of a s 55 review) in the weekly compensation awarded by Arbitrator Hertzberg, second, an application for past (from 26 August 2011) and future s 60 expenses for the right knee, and, third, a claim for s 60 expenses for the surgery on the left ankle/foot on 17 July 2012 and for weekly compensation for total incapacity from 17 July 2012 to 7 November 2012, the recuperation period after the surgery.
Thus, the first part of the claim was a review of the Arbitrator Hertzberg’s award for weekly compensation. The second part related to past and future s 60 expenses for the right knee injury. The third part was for s 60 expenses and weekly compensation, but related solely to the consequential condition of the left ankle/foot. It followed that the claim for total incapacity for the period from 17 July 2012 to 7 November 2012 turns on whether the surgery was reasonably necessary medical treatment as a result of the right knee injury.
On 6 May 2014, the respondent filed a Reply in which it disputed the claim on the grounds that:
(a) Ms Ross suffered no incapacity for employment as a result of her injuries on 25 May 2000 and/or 29 March 2001 and had no entitlement to weekly compensation, and
(b) Ms Ross’s hospital and medical expenses were not reasonably necessary as a consequence of her injuries on 25 May 2000 and/or 29 March 2001.
At the arbitration hearing on 24 July 2014, the respondent’s counsel, Mr Parker, clarified that the respondent also sought a review of Arbitrator Hertzberg’s award and sought to have that award reduced to nil from 24 July 2014 (T17.33). Counsel for Ms Ross, Mr Inglis, opposed that application. He submitted that there had been no relevant change of circumstances, which would support a reduction in the award to nil, that the respondent had provided no particulars of such a claim, and that the respondent required leave under s 289A before it could seek a decrease in the award.
In the end, the Arbitrator allowed the respondent to seek a s 55 review. He did so because Ms Ross’s Application “open[ed] up” ([16]) the question of her entitlement to weekly compensation and, while she was entitled to seek an increase in those payments, that did not mean that “the Commission may not decrease such payments if the evidence otherwise permits” ([16]). This statement was no doubt based on s 55(2), which states that, on any such review, the weekly payment may be “ended, reduced or increased”.
However, in a worker’s application for an increase under s 55, the Commission should not, as a matter of basic procedural fairness, decrease or terminate an existing award in the absence of proper notice and particulars of a claim seeking such an order. Thus, before the Commission would consider the reduction or termination of an existing award of weekly compensation, an application should (normally) be filed by the respondent, with proper particulars in support, outlining the grounds for that claim (Pt 10 of the Workers Compensation Commission Rules 2011 (the Rules); Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9 at [34] (Chapman)).
For the reasons explained in Chapman, an employer’s application for a s 55 review does not require a s 74 notice. That is because an employer’s application for review is not “a claim” for compensation. It is an application that any weekly compensation “be reviewed by the Commission”. However, as explained above, the employer (or its insurer) must provide proper particulars of the grounds for such a claim.
If the respondent asserted, as it did, that, because of a change in circumstances since the original award, Ms Ross not only had no entitlement to an increase in weekly compensation but that her entitlement to compensation should be terminated, it should have filed an Application to Resolve a Dispute making that clear. The fact that it failed to do so was not fatal because the Commission has the power to dispense with compliance with the Rules (Pt 1 r 1.6(2)). In end, the respondent’s application that Arbitrator Hertzberg’s award be terminated was unsuccessful and nothing turns on the failure to properly particularise its application for review prior to the hearing.
Dealing with the claims with respect to the right knee, the Arbitrator found that:
(a) the effects of the original injury to the right knee continued;
(b) Ms Ross’s right knee had deteriorated since 4 July 2006 and, consequently, there had been a change in circumstances under s 55;
(c) the respondent remained liable for reasonably necessary hospital and medical expenses and weekly payments for incapacity arising from the right knee injury, and
(d) Ms Ross was entitled, in respect of the right knee injury, to weekly compensation under s 40 of $213.42 from 8 November 2012 to date and continuing.
Thus, Arbitrator Hertzberg’s award for weekly compensation was increased by $102.10 from 8 November 2012.
The Arbitrator remitted the claim for the proposed knee replacement surgery to the Registrar for referral to an Approved Medical Specialist (AMS) for an opinion on whether that surgery is reasonably necessary as a result of the injury (s 60(5); Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449).
Neither side has challenged these findings or orders.
Dealing with the claims arising from the condition of Ms Ross’s left ankle/foot, the Arbitrator accepted that the falls in February 2005 and October 2006 occurred due to Ms Ross’s right knee giving way, and that the giving way was a result of the earlier work injury to the right knee. However, the Arbitrator said that there did not appear to be any complaints to Ms Ross’s treating doctors from late 2006 until the left foot symptoms manifested themselves again in 2011 and there had not been a “consistency of complaint in the ensuing years after the initial onset of symptoms after a fall in 2005” ([115]).
In the circumstances, the Arbitrator was not persuaded that Ms Ross had discharged the onus of establishing “the persisting connection through to the period the subject of this claim, namely from July 2012 onwards” ([115]). He added, at the same paragraph, that he was not satisfied that Ms Ross’s left foot/ankle symptoms in 2005 and 2006 “resulted in any progression of the pathology so as to be a common sense cause of her symptoms from 2011 onward”. He was not able to conclude that any problem with the Achilles (tendon) persisted beyond 2007, or, if it did, whether the Achilles tendinitis “was implicated in the causal mix leading to the arthrodesis in the left foot”.
The result of these findings was that Ms Ross has failed with her claim for s 60 expenses in respect of treatment of her left foot/ankle and with her claim for weekly compensation based on total incapacity from 17 July 2012 to 7 November 2012.
The Commission issued a Certificate of Determination on 1 August 2014 in the following terms:
“The Commission determines:
1. The application for lump sum compensation is discontinued without the requirement to file a Notice of Discontinuance.
2. There has been a change in circumstances for the purposes of the former section 55 of the Workers Compensation Act 1987, and that it is appropriate to review the determination of Arbitrator Hertzberg of 4 July 2006.
3. The effects of the injury to the applicant’s right knee on 25 May 2000 continue and have increased over the period of time since injury, and the respondent remains liable for payment of reasonably necessary medical expenses and weekly payments for incapacity arising from that injury.
4. The applicant’s probable earnings had she remained uninjured for periods of the claim from 17 July 2012 to date have changed and are for relevant periods $784.78.
5. The applicant’s ability to earn (considering only the effects of the right knee condition) for all periods to be $571.32.
6. The applicant was totally incapacitated from 17 July 2012 to 7 November 2012 as a result of a non-compensable left foot condition.
7. The respondent is to pay the applicant’s weekly payments pursuant to the former section 40 at the rate of $213.42 from 8 November 2012 to date and continuing, with credit for any amounts already paid for relevant periods.
8. The respondent is to pay the applicant’s reasonably necessary medical expenses arising from the right knee injury.
9. The matter is remitted to the Registrar for referral to an Approved Medical Specialist assessment according to the following:
(a)Date of Injury: 25 May 2000
(b)
Purpose of Assessment: To answer the question:
“Is the proposed total right knee replacement reasonably necessary as a result of the injury?”
(c)Documents to be provided to Approved Medical Specialist (with attachments unless excluded):
(i) Amended Application to Resolve a Dispute (as further amended by discontinuance of the lump sum claim) signed 16 July 2014 (this application is attached to an Application to Admit Late Documents signed on 16 July 2014);
(ii) Application to Resolve a Dispute registered 17 February 2014 and the attached evidence;
(iii) Application to Admit Late Documents dated 16 July 2014 and attachments;
(iv) Reply (attached to an Application to Admit Late Documents signed 6 May 2014);
(v) Application to Admit Late Documents dated 23 July 2014 together with attachments
(vi) This Determination and Reasons.
10. The matter is to be relisted for further teleconference following the issue of a medical assessment certificate as a result of that referral and the expiry of the 28 day appeal period.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The Certificate of Determination has not made any orders about Ms Ross’s claim with respect to her left ankle/foot. However, in the body of his reasons, the Arbitrator made a “determination” that Ms Ross had not made out her case in respect of that part of the claim and Ms Ross has challenged that determination. For the reasons explained below, the appeal is unsuccessful.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) not entering a general s 60 award for Ms Ross in respect of the left ankle and foot condition for treatment expenses incurred for that condition between 2005 and 2007 (section 60 expenses);
(b) determining that there did not appear to be any complaints to Ms Ross’s treating doctors from late 2006 until the left foot symptoms manifested themselves in 2011, when there was such evidence before him (evidence of complaints of left foot and ankle symptoms);
(c) determining that there had not been a level of consistency of complaint in the ensuring years after the initial onset of symptoms caused in 2005 and 2006, when there was such evidence before him (evidence of complaints of left foot and ankle symptoms);
(d) failing to consider all the relevant medical and other evidence that was before him of ongoing symptoms in, and treatment for, Ms Ross’s left ankle and foot condition leading up to the surgery on 17 July 2012 (evidence of complaints of left foot and ankle symptoms);
(e) failing to determine whether Ms Ross had favoured her left leg as a result of the weakness in her right knee (and whether that favouring) caused her left ankle and foot to become symptomatic (favouring of the left leg);
(f) failing to provide any or any adequate reasons for not accepting the opinion of Dr Miller, general surgeon qualified by Ms Ross, in his report of 11 January 2013 (Dr Miller’s evidence), and
(g) failing to provide any or any adequate reasons for not accepting the opinion of Dr Knight, Ms Ross’s general practitioner, in his report of 19 September 2005 (Dr Knight’s evidence).
SECTION 60 EXPENSES
Submissions
Ms Ross’s solicitor, William Langler, submitted that having found that the falls in February 2005 and October 2006 occurred due to the giving way of the right knee and that the giving way was as a result of the injury to that knee, Ms Ross was entitled to a general award for treatment expenses under s 60 of the 1987 Act that she incurred between 2005 and 2007.
On behalf of the respondent, Ms Tzavaras, solicitor, submitted that Ms Ross’s s 55 application sought a review of the first award from 17 July 2012 and that the schedule of s 60 expenses attached to the Application to Admit Late Documents dated 16 July 2014 did not particularise any claim for treatment prior to 26 August 2011. She contended that Ms Ross was estopped, in accordance with s 55, from “obtaining a change in the award prior to 17 July 2012 in the absence of a proper Application to this effect”.
Discussion and findings
The complaint that the Arbitrator erred in failing to make a general order for the payment of s 60 expenses incurred between 2005 and 2007 is unsustainable. Ms Ross made no such claim in her Application and Mr Langler has not referred to any correspondence where such a claim was particularised. Nor has he referred to any submission before the Arbitrator where this matter was raised.
The s 60 expenses claimed at the arbitration were particularised in a schedule attached to an Application to Admit Late Documents filed on 16 July 2014. The first item claimed is dated 26 August 2011. Nowhere in that document, or in any other document, was there any suggestion that any claim was made for s 60 expenses incurred between 2005 and 2007. Consistent with this, the letter of 27 November 2013 expressly claimed s 60 expenses “relating to surgery to her left ankle and foot and rehabilitation costs”.
It is not an error for an Arbitrator not to deal with an issue never raised (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30] (Bell)) or, I would add, a claim never made. This ground of appeal is rejected.
EVIDENCE OF COMPAINTS OF LEFT FOOT AND ANKLE SYMPTOMS
The Arbitrator’s reasons
The Arbitrator said (at [101]), and it has not been challenged, that Ms Ross has fallen on numerous occasions due to her right knee giving way. The evidence of any “particular injuries” having occurred in those falls was, however, limited to the fall in February 2005 and in October 2006.
Though Ms Ross did not complain immediately to Dr Knight of the first fall, she did mention it on 6 April 2005, when he recorded that she suffered an injury 10 weeks prior with “recurrent swelling and pain in [the] ankle and foot”. (It is accepted that this entry related to the left ankle and foot.) Dr Knight noticed tenderness over the lateral ankle joint and Achilles tendon. An ultrasound confirmed Achilles tendinitis. There were further complaints of Achilles problems by Ms Ross in 2005.
Ms Ross described the fall in October 2006 as “the most significant fall”. It required her to be taken by ambulance to Coffs Harbour Health Campus emergency department. The records confirmed that Ms Ross fell as a result of her right knee giving way and that she suffered an eversion injury. Again, the left Achilles was involved. The diagnosis was a “left ankle sprain”.
The Arbitrator said that the issue was “clouded” ([103]) by the onset of sciatica in December 2006 and Ms Ross’s admission to Coffs Harbour Hospital for about 11 days as a result. He said that Ms Ross claimed that, since the fall in October 2006, she suffered further loss of strength and movement in the left knee and ankle, noting that the left knee was not the subject of this claim.
The Arbitrator noted Ms Ross’s evidence that she continued to suffer “loss of strength and movement” in her ankle after the October 2006 fall. However, he added that “there does not appear to be any complaints to her treating doctors from late 2006 until the left foot symptoms manifest[ed] themselves again in 2011” ([106]).
Referring to Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland), which emphasised the importance of contemporaneous evidence in assessing claims, the Arbitrator said that, in Ms Ross’s case, there was a complaint concerning her left ankle and Achilles tendon in 2005 and 2006, but an “absence of further complaint regarding the left ankle or foot for a period of about four to five years” ([110]).
In addition, there was a “curious, and unexplained, notation of ‘injury’ on 17 July 2011” in the ultrasound report of 22 July 2011 ([111]). While the Arbitrator did not rely on this as an intervening event, the lack of explanation of this specific note gave “pause to the acceptance of [Ms Ross’s] evidence in her statement at face value”.
The Arbitrator said, citing Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, that he did not feel “an actual persuasion of the existence” ([114]) of a causal contribution between the falls in 2005 and 2006 and the existence of left foot symptoms in 2011. He added, at [115]–[116]:
“115.The situation may have been otherwise if there had been a level of consistency of complaint in the ensuing years after the initial onset of symptoms after a fall in 2005. That is, I accept that there were symptoms caused in 2005 and 2006. I accept that the falls occurred due to the giving way of the right knee, and that the giving way was a result of the injury. I am satisfied on the evidence that the symptoms included an aggravation of Achilles tendonitis, already calcific at the time of the increase in symptoms. Despite the applicant’s evidence that since then she has had problems in the left ankle, this is not supported by any contemporaneous evidence, and I am not persuaded the applicant has discharged the onus in establishing the persisting connection through to the period the subject of this claim, namely from July 2012 onwards, or indeed from the further manifestation of symptoms in 2011 onwards. I am not satisfied that the symptoms in the left foot and/or ankle, including the Achilles, in 2005 and 2006 resulted in any progression of the pathology so as to be a common sense cause of her symptoms from 2011 onward. I am not able to conclude, on the evidence, that any problem with the Achilles persisted beyond 2007, or, if it did, whether the Achilles tendonitis was implicated in the causal mix leading to the arthrodesis in the left foot.
116.For the same reasons, I am not persuaded that the application has established that any ongoing effects on underlying left ankle degeneration which may have occurred in 2005 and 2006 has persisted through to 2011 onwards.”
Submissions
Mr Langler submitted that there is a considerable body of contemporaneous evidence regarding ongoing pain, problems and treatment for the left ankle and foot between 2006 and 2012. He said the Arbitrator was referred to the clinical records of the Baringa Private Hospital, which demonstrate that Ms Ross received extensive ongoing physiotherapy, hydrotherapy and rehabilitation since her original injury in 2000, both in relation to her right knee injury and, by 2005, her left ankle and foot.
Mr Langler contended that, contrary to the Arbitrator’s determination, there are numerous references in the notes from Baringa Private Hospital to ongoing pain, loss of mobility and problems with the left foot and ankle requiring treatment in the form of physiotherapy and massage to the left foot and ankle over the period in question from 2005 to 2012. These notes provide cogent contemporaneous evidence of continuing pain and restricted movement in the left ankle and foot requiring extensive treatment.
Mr Langler added that, though Dr Knight’s notes are deficient, there are referrals by him to other doctors and for radiological scans that disclose ongoing problems in the left ankle and foot, to which the Arbitrator did not refer.
The Arbitrator’s failure to examine all of the material evidence relevant to the issue was an error (Waterways Authority v Fitzgibbon [2005] HCA 57 at [130]; 221 ALR 402).
Ms Tzavaras repeated a submission made at the arbitration, namely, that Ms Ross had a significant pre-existing condition in her left ankle that was identified in a scan dated 20 September 1999 and in the clinical notes of the Coffs Central Medical Centre (where Dr Knight saw Ms Ross) dated 23 November 1999.
Ms Tzavaras contended that Ms Ross’s chronology focused on treatment for the left foot and ankle from 2007 onwards, primarily at Baringa Private Hospital, but this was misleading as the notes from Baringa Private Hospital refer to treatment dating back to as early as 1 January 2002, which addressed both feet. The treatment from 2007 addressed the right hip, torn right calf, left calf and right and left feet, without distinction, in Ms Tzavaras’s submission, between the right and left sides. She noted that, for example, the entry dated 17 July 2007 at Baringa Private Hospital noted pain at the right Achilles region.
With regard to the referral letters noted by Mr Langler, Ms Tzavaras noted that they include a reference not only to the left ankle but also the right ankle, as well as a myriad of other co-morbidities forming part of Ms Ross’s complex clinical history. Ms Tzavaras argued that, when the full clinical picture is considered, the reference to the clinical records do not support an argument that treatment from 2007 onwards was specifically for the flow-on effects of the falls in February 2005 and October 2006.
Ms Tzavaras drew attention to the evidence that further events occurred without any apparent causal connection to the falls in February 2005 and October 2006. For example, she referred to the evidence from Matt Becker, physiotherapist, that at around 17 July 2011 Ms Ross rolled her foot, following which imaging dated 22 July 2011 revealed, among other things, left posterior tibialis calcific tendinopathy. She submitted that this led to Ms Ross’s need for surgery on 17 July 2012. She repeated the submission made at the arbitration that the treatment (for the left ankle/foot) after October 2006 was not consistent with the effects of the falls in February 2005 and October 2006 (T49).
Ms Tzavaras submitted that Mr Inglis made no submissions “with reliance on the bulk of the clinical notes now being referred to in [Mr Langler’s] submissions”.
If the Arbitrator erred in finding that there did not appear to be any complaints to the treating doctors from late 2006 until the left foot symptoms in 2011, he explained himself at [115] (quoted at [51] above). In other words, the apparent complaints were not sufficient, in the Arbitrator’s view, to form a sufficient causal connection to Ms Ross’s claim within the test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
Discussion and findings
The Arbitrator’s statement (at [110]) that there was an absence of further complaints regarding the left ankle or foot for a period of about four or five years after 2006 was incorrect. There is evidence of Ms Ross receiving treatment for her left ankle (and other parts of her body that are not the subject of this claim, including her right ankle) from late 2006 until 2012. However, as Ms Tzavaras submitted, Mr Inglis placed no reliance on the “bulk” of the clinical notes now referred to in Mr Langler’s submissions on appeal.
While Mr Inglis referred the Arbitrator to page “316 and ongoing” (T58.21) of the Application, his submission about that evidence was, at T58.25:
“There’s a history of treatment, ongoing treatment for the left foot and ankle but that is later on, I must accept. But it indicates that it’s still causing her problems at that time and that she was requiring treatment. Now to some extent it does involve an acceptance of [Ms Ross’s] history but given the whole history, including the work history, you’d have no difficulty in accepting that in our respectful submission.” (emphasis added)
The reference to page 316 was a reference to the medical records from Baringa Private Hospital, which commenced at that page of the Application and continued for the next 76 pages. Mr Inglis’s submissions were of limited assistance: they started by asserting that the history of treatment was “later on” and then suggested that it was “still causing [Ms Ross] problems at that time” but without indicating when “that time” was. Given these submissions, it is hardly surprising that the Arbitrator did not consider the records further.
On appeal, Mr Langler has referred to specific entries in the Baringa Private Hospital notes on 24 separate pages (from page 321 to 370 to of the Application) which refer to, among other things, treatment for left ankle and foot symptoms between February 2007 and late 2012. I have read all of the entries to which Mr Langler referred and note they do confirm that, contrary to the Arbitrator’s statement, Ms Ross did have left ankle symptoms between 2007 and 2011.
Mr Inglis’s submissions were far from helpful and would not be a model to be followed in the future. That is especially so in a case where, as in the present matter, the parties tendered over 1,100 pages of material, much of which was of limited, if any, relevance. A judge is not obliged to search through a mass of apparently non-supportive evidence to find supportive material (Gamester Pty Ltd and Barbara Cameron v The Honourable Mr Justice Lockhart [1993] HCA 79; 112 ALR 623; 67 ALJR 547). Nevertheless, Mr Inglis’s reference to page 316 and ongoing did alert the Arbitrator to evidence that supported the contention that Ms Ross had complained about her left ankle/foot between 2006 and 2011, though not in a way that one would have expected if this was a significant issue.
Thus, one of the reasons for the Arbitrator finding against Ms Ross, namely, that her evidence of continuing symptoms in her left ankle/foot since the falls in 2005 and 2006 was not supported by any “contemporaneous evidence”, was not correct. However, this was not the only reason the Arbitrator gave for not accepting Ms Ross’s claim. The most important reason was the lack of medical evidence linking the 2005 injury to the Achilles tendon with the need for surgery in 2012. The Arbitrator noted (at [104]) that it was not immediately apparent how an injury to the left Achilles tendon leads to a triple arthrodesis in the ankle joint or the left foot and that he was not assisted by any reports from Dr Pepper explaining the connection between the right knee injury and any left ankle or foot problems.
The Arbitrator’s observations at [104] were and are critical to the resolution of the claim. On the evidence tendered, it was not established how the left Achilles tendinitis, diagnosed as being due to the 2005 fall, or the left ankle strain, diagnosed as being due to the 2006 fall, resulted in the need for the triple arthrodesis and bone graft to Ms Ross’s left ankle in July 2012. This issue is discussed further below (from [107]) when the medical evidence and the Arbitrator’s reasons are considered in more detail.
Mr Langler’s reference to the Arbitrator’s failure to refer to Dr Knight’s referrals to other doctors, or Dr Knight’s clinical notes, has not established error. That is because Mr Inglis did not rely on those referrals, or any relevant part of Dr Knight’s clinical notes, and it is not an error for an Arbitrator not to deal with an issue never argued (Bell at [22] and [30]). It is for the parties to present their respective cases and to draw the Arbitrator’s attention to relevant evidence. In any event, as will be seen from an analysis of the other grounds of appeal, the documents from Dr Knight and the records from Baringa Private Hospital do not overcome the significant deficiencies in Ms Ross’s case.
To the extent that the material from Dr Knight was relevant, Mr Parker relied on it in support of the respondent’s position. Mr Parker took the Arbitrator to several entries in Dr Knight’s clinical records, which he submitted supported the respondent’s position. Those entries included an entry on 20 November 2006, which recorded numbness in the left foot area of the second toe and over the head of the metatarsal. He submitted that that was not consistent with a left ankle sprain or Achilles (tendon) injury and that it would be consistent with something else.
Mr Parker also took the Arbitrator to an entry in Dr Knight’s notes on 2 February 2007 of paraesthesia in the foot with pain at the beginning of the year. He submitted that paraesthesia was “not consistent with an Achilles tendon type injury” (T50.6). He also relied on an entry on 16 April 2007 that recorded a complaint of a “funny” sensation in the hands and feet, probably related to hyperventilation. Again, he submitted that that did not appear to be related to any Achilles (tendon) problem.
Mr Parker then took the Arbitrator to the entry in Dr Knight’s notes on 4 January 2010, which recorded “[a]nkle osteoarthritis” “fall” and, significantly, submitted “we know [Ms Ross’s] got osteoarthritis in the ankle” but there was no “link whatsoever back to the two conceded injuries in 2000 and 2001” (T51.23) (to the right knee) nine years earlier.
Referring to entries in Dr Knight’s notes on 11 May 2011 (“left ankle pain”) and on 20 May 2011 (“results follow up Achilles tendinosis”), six years after the apparently significant 2006 event and seven years after the 2005 one, Mr Parker submitted that there was “nothing linking them together” (T51.29). Thus, he identified the critical issue in the case, the lack of evidence linking the surgery in 2012 with the Achilles tendinosis diagnosed in 2005 or the strain diagnosed in 2006.
Next, Mr Parker referred to Dr Knight’s note on 4 January 2012, which recorded “left tibialis posterior calcific tendinopathy” and submitted that “calcific isn’t traumatic, it would be an underlying condition” (T52.3). At that stage, Mr Inglis interjected to refer the Arbitrator to an entry in November 2011, which recorded “left ankle and foot pain”. Mr Parker continued, at T52.13, “[t]here’s nothing suggesting it’s coming back to the 2006 incident and on 4 January 2012, it says it’s calcific tendinopathy. Calcific tedinopathy does not come from trauma.” Mr Parker accepted that calcific tendinopathy was consistent with degenerative change (T52.20).
Mr Parker also took the Arbitrator to Dr Knight’s note on 25 January, which recorded:
“Diagnosis:
Left Tibialis posterior tendonitisReason for visit:
Left foot pain17/7/11
Navicular insertion of left posterior tibial tendon injured 17/7/11
Had USHad ‘shockwave therapy’ from Matt Becker, which exacerbated problem” (emphasis added)
Mr Parker asked what happened on 17 July 2011, noting that there was no evidence dealing with it. He then took the Arbitrator to an ultrasound dated 22 July 2011 that recorded under “clinical notes” “[n]avicular insertion of left posterior tibial tendon, injured on 17/07/2011. Painful and swollen”. He noted that from mid-2011 Ms Ross was complaining quite regularly about the left ankle and submitted that there were “huge gaps in this case” (T53.30). If that submission intended to suggest that there were no complaints about the left ankle between 2006 and 2011, it was incorrect. However, the critical issue, which Mr Parker referred to several times, was the lack of evidence linking the Achilles tendon problems with the 2012 surgery.
In submissions in reply, Mr Inglis argued (at T57.1) that Mr Parker’s submissions might have had more force if there was some medical evidence to support his contention. He said, without reference to any specific evidence, that the incident in July 2011 was “more consistent with the diagnosis of the doctors and the history provided by [Ms Ross] that she was falling because of her knee giving way” (T58.12). He then referred the Arbitrator to Dr Miller’s evidence (discussed more fully below) and then, as I have already noted, to page 316 of the Application “and ongoing”.
I have set out the submissions in some detail because they demonstrate the attention Mr Parker gave to the critical issue in the case, namely, the lack of evidence linking the Achilles tendinitis diagnosed in 2005 with the surgery in 2012, a point Ms Tzavaras has repeated in her submissions on appeal.
Though I have accepted, with considerable reluctance, given the way the case was argued, that the Arbitrator erred in stating that there was no contemporaneous evidence of complaints of left ankle or foot symptoms between 2006 and 2011, that is not the end of the analysis. Ms Ross must establish that that error has affected the outcome. Ms Tzavaras has submitted, relying on the points made by Mr Parker at the arbitration, that it has not.
Whether the error has affected the result depends on a close analysis of the other grounds of appeal and the expert and lay evidence said to support the claim. In this context, however, it is relevant to note that nothing in either the notes from Baringa Private Hospital or any of the material from Dr Knight suggests a causal link between the 2005 and 2006 falls and the need for surgery in 2012.
FAVOURING OF THE LEFT LEG
Submissions
Mr Langler submitted that the Arbitrator failed to “adequately engage with [Ms Ross’s] other evidence that she had been favouring the left leg as a result of the weakness and difficulties she was experiencing with the right leg over many years”. He complained that the Arbitrator focused on the 2005 and 2006 falls “exclusively and has not expressly addressed [Ms Ross’s] claim of favouring the left leg”. Thus, the Arbitrator’s reasons “fail[ed] to determine this allegation and his failure to fully engage with this issue was an error”.
Discussion and findings
Mr Inglis made no submission along the lines now sought to be argued on appeal with respect to Ms Ross’s favouring her left leg. I would add that, normally, one “favours” the injured limb, which, in this case, would be the right leg. Nevertheless, the meaning of Mr Langler’s submission is tolerably clear.
Mr Langler’s submission would be relevant if this appeal were a rehearing. However, as the Commission has explained in dozens of cases, s 352 appeals are restricted to the establishment and correction of error. They are not a review or rehearing. As explained above, it is not an error for an Arbitrator not to deal with an issue not argued. As Mr Inglis did not refer to Ms Ross favouring either leg because of her right knee injury, this ground of appeal cannot succeed.
In any event, notwithstanding Mr Inglis’s failure to rely on any “favouring”, the Arbitrator did address it. He noted (at [107]) that it was not clear if Dr Miller based his opinion on the “favouring” referred to by Ms Ross or the right knee giving way. Further, at [108] and [113] the Arbitrator said that no treating doctor referred to favouring as an historical matter, or to extra stress being placed on the left ankle because of any “favouring”. The Arbitrator’s observations were correct and disclosed no error. As Mr Inglis made no submissions on the significance of “favouring”, and as there is no medical evidence supporting this aspect of the claim, the Arbitrator was not required to deal with the matter further.
DR MILLER’S EVIDENCE
Dr Miller’s reports
Dr Miller’s evidence, as far as it is relevant to the issues on appeal, is in his reports of 25 August 2005 and 11 January 2013. The following summary of Dr Miller’s evidence will concentrate on the left ankle, though the central focus of Dr Miller’s evidence was the right knee. In his August 2005 report, Dr Miller took a history that, in February 2005, Ms Ross injured her left Achilles tendon when her right knee gave way and she slipped while walking on a pavement in Sydney. Investigations showed a tendinitis, which was treated with ultrasound and physiotherapy.
Under “current status”, Dr Miller recorded that Ms Ross had intermittent pain in her right knee, especially if she was on her feet for long periods or had to squat. She found it difficult to perform her housework, particularly ironing, vacuuming and cleaning the bathroom, and difficult to walk up and down stairs or hills. She could not walk long distances or dance. However, Dr Miller did not record if these difficulties were because of her knee symptoms or her left ankle.
On examination, Ms Ross was tender to palpation over the left Achilles tendon but had a full range of ankle movement. Dr Miller’s opinions were directed to the condition of Ms Ross’s right knee and it appears that, in his 2005 report, he was not asked any specific questions about the left ankle.
Dr Miller prepared his report of 13 January 2013 after having reviewed Ms Ross on 7 January 2013. He repeated his previous opinions about Ms Ross’s right knee. He also repeated his history about the February 2005 incident when Ms Ross “injured her left Achilles tendon when her right knee ‘gave way’ and she slipped while walking”. He took no history of the 2006 ankle injury. He noted that Ms Ross worked as a receptionist until December 2006, but she said she was unable to continue work “in regard to her right knee and left ankle problems”. Her right knee had continued to deteriorate.
Dr Miller recorded that Ms Ross claimed that she had had a course of intensive hydrotherapy in the previous two years to her right knee and left ankle/foot. She had been referred to a physiotherapist, Matt Becker, who treated her with radial shock wave therapy to her left foot, which she claimed increased the intensity of her pain and she was required to wear a moon boot.
Dr Miller also recorded that Ms Ross had been referred to Dr Summersell, specialist in Coffs Harbour, who recommended she undergo a posterior tibialis reconstruction with Achilles lengthening. She obtained a second opinion from Dr Pepper who performed a triple arthrodesis plus bone graft to her left foot on 17 July 2012. Ms Ross claimed to have intermittent pain at the site of the surgery on her left foot and that the foot swelled, particularly if she was on her feet for greater than 30 minutes. She was required to wear orthotics and special footwear.
Dr Miller reviewed an x-ray and ultrasound of the left foot dated 23 January 2012. The x-ray showed a “subjective reduction in bone density” with degenerative changes within the tarsus. There were mild degenerative changes in the first metatarsophalangeal joint and loss of longitudinal arch of the foot. There was prominent calcaneal spur and mild ossification at the insertion of the Achilles tendon. There was soft tissue calcification in the region of the tibialis posterior tendon insertion. The ultrasound findings were consistent with marked tibialis posterior tendinosis.
Radiographs of the left foot performed on 27 November 2012 revealed the triple arthrodesis and “presumed post traumatic secondary osteoarthritis of the ankle joint”.
Under “opinion”, Dr Miller mainly dealt with the right knee problems, Ms Ross’s need for continuing treatment, her restrictions and her domestic situation. His only comment on causation of the left ankle/foot problem was:
“It is my opinion that the problems caused by her right knee injury are directly responsible for the aggravation of previously asymptomatic degenerative change in her left foot and ankle.”
The Arbitrator’s reasons
The Arbitrator noted (at [72]) that Dr Pepper’s operation report made no mention of Achilles (tendon) involvement. He added that, though the Commission is an expert tribunal, unless the anatomy involved is “relatively self evident”, he did not believe “interpretation of the operative procedure can delve so deep as to identify anatomical items not specifically identified by the surgeon himself”.
The Arbitrator said, at [104]–[105]:
“104. The matter is complicated by the description of the injury as left ‘ankle’. The orthopaedic reports refer to both the ‘ankle’ and the ‘foot’. It is not immediately apparent as to how an injury to the left Achilles tendon leads to a triple arthrodesis in the ankle joint itself, or indeed the foot. Dr Pepper’s operation report of 17 July 2012 refers to various joints including the removal of the articular surface of the anterior facets subtalar joint and calcaneo-cuboid joint. The surfaces were also removed down to bone from the talonavicular joint without involving the Achilles. These joints are in the hindfoot. Unfortunately, we are not assisted by any further reports of Dr Pepper explaining the connection, if any, between the right knee condition itself and any left ankle or foot problems, or of any connection between the right knee induced falls and the left sided problems.
105. Although Dr Stephen, by virtue of the history he took, pays scant attention to the left ankle/foot, he did note the triple arthrodesis. He noted that [Ms Ross] had osteoarthritis of the ‘left hindfoot’ and that she had a triple arthrodesis performed by Dr Pepper ‘because of this’. This throws some light on the nature of the surgery, being to the ‘hindfoot’.”
At [106], the Arbitrator referred to Mr Parker’s submission that, at worst, Ms Ross suffered Achilles tendinitis as a result of the falls in 2005 and 2006. The Arbitrator accepted that Ms Ross did suffer tendinitis but did not accept that that was the limit of the involvement of the left foot. He accepted that, at the time (exactly which time was not identified), in all probability Ms Ross suffered “some aggravation of symptoms emanating from the degenerative condition in her left foot around the joints eventually fused by Dr Pepper”. He noted Ms Ross’s evidence that she continued to suffer “loss of strength and movement” in her ankle after the fall in October 2006. However, he added (wrongly) that there did not appear to be any complaints to her treating doctors from late 2006 until the left foot symptoms manifested themselves again in 2011.
He added, at [107]–[108]:
“107. Dr Miller’s opinion in relation to the ‘left foot and ankle’ that ‘the problems caused by her right knee injury are directly responsible for the aggravation of previously asymptomatic degenerative change in her left foot and ankle’ is unexplained. The mechanism of the connection is not apparent to me, either in relation to the foot or the ankle. Similarly, it is not clear whether the doctor is referring to the right knee giving way or the ‘favouring’ referred to by [Ms Ross]. If the former, then an absence of complaint for over four years should be explained.
108. If the latter, it is noted that no treating specialist refers to favouring as an historical matter.”
The Arbitrator then referred to Ireland (see [49] above). He noted (at [110]) the complaint of the left ankle and Achilles tendon in 2005 and 2006 and then, incorrectly, what he believed was an absence of further complaint regarding the left ankle or foot for about four to five years.
At [111], the Arbitrator referred to the “curious” and “unexplained” notation of “injury” on 17 July 2011, which he did not rely on as an intervening event, though he said that the lack of explanation gave “pause to the acceptance of [Ms Ross’s] evidence in her statement at face value”.
He correctly noted (at [112]) that, with regard to the left ankle/foot, he was dealing not with a s 4 injury but with a consequential condition said to have arisen as a result of the symptoms and disabilities caused by the right knee. The test was the commonsense test based on Kooragang.
He noted (at [113]) that Ms Ross had seen three different treating orthopaedic surgeons: Dr Chan, Dr Summersell and Dr Pepper, but there was no report on causation from any of them. Likewise, there was no record of complaint to any of them regarding any “favouring” of the right knee and of extra stresses being placed on the left ankle as a result. He noted that Dr Knight raised that issue, but in relation to multiple joints which were not the subject of the claim.
At [114] the Arbitrator said that he did not feel “an actual persuasion of the existence” of a causal contribution between the falls in 2005 and 2006 and the existence of the left foot symptoms in 2011.
Submissions
Mr Langler submitted that, in his report of 11 January 2013, Dr Miller concluded that the problems caused by Ms Ross’s right knee injury were “directly responsible for the aggravation of previously asymptomatic degenerative change in her left foot and ankle”. He pointed out that the respondent’s only medicolegal evidence was from Dr Stephens, orthopaedic surgeon, who concentrated on the right knee injury only and expressed no opinion in relation to causation of the left ankle and foot condition.
Mr Langler said that an Arbitrator is required to engage with the issues canvassed and to explain why one expert is accepted over another. He contended that, with respect to Dr Miller’s evidence, the Arbitrator had not done that. The Arbitrator did not expressly reject Dr Miller’s opinion and did not provide any adequate reasons for not accepting his opinion in relation to the left ankle and foot condition, other than Ms Ross’s apparent lack of contemporaneous ongoing complaints.
Ms Tzavaras submitted that the Arbitrator gave due consideration to the reports from Dr Miller and to other contemporaneous clinical records that allowed him to form a view that differed from that of Dr Miller.
Discussion and findings
In do not accept Mr Langler’s submissions.
When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443–444). On the issue of whether to accept Dr Miller’s evidence, the Arbitrator exposed his reasoning and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). He clearly engaged with the issue in dispute and, for reasons stated, determined that issue against Ms Ross.
The Arbitrator’s reasons were:
(a) Dr Pepper’s operation report made no mention of “Achilles [tendon] involvement” and the Arbitrator did not believe the Commission’s interpretation of the operative procedure could identify anatomical items not specifically identified by the surgeon ([72]);
(b) it was not immediately apparent how an injury to the left Achilles tendon leads to a triple arthrodesis in the ankle joint itself, or indeed the foot ([104]);
(c) Dr Miller’s opinion that “the problems caused by [Ms Ross’s] right knee injury are directly responsible for the aggravation of previously asymptomatic degenerative change in her left foot and ankle” was unexplained ([107]);
(d) the “mechanism of the connection [between the injuries sustained in the falls in 2005 and 2006] [was] not apparent” ([107]), either in relation to the foot or the ankle;
(e) it was not clear whether Dr Miller was referring to the right knee giving way or the “favouring” referred to by Ms Ross. If it was the former, then an absence of complaint for over four years should have been explained ([107]);
(f) no treating specialist referred to “favouring” as an historical matter ([108]);
(g) the curious and unexplained notation of “injury” on 17 July 2011 gave “pause to the acceptance of [Ms Ross’s] evidence in her statement at face value” ([111]);
(h) there were no reports “on causation” from any of Ms Ross’s treating orthopaedic surgeons ([113]), and
(i) he did not feel actual persuasion of a causal contribution between the falls in 2005 and 2006 and the existence of left foot symptoms in 2011 ([114]).
Apart from the reference to an absence of complaint for over four years (discussed further below), the Arbitrator’s observations and findings were open on the evidence and disclosed no error.
The Arbitrator was perfectly correct to observe that it was not immediately apparent how an injury to the left Achilles tendon leads to a triple arthrodesis in the ankle joint or foot. The Arbitrator expressly drew counsel’s attention to the fall in 2005, which “was specific regarding the Achilles” (T32.28), and pointed out that “[t]he rest of it is not specific, or unless you can bring me to something. Seems to be not specific in terms of its contribution to the requirement for the surgery?” (T32.29). After Mr Inglis again referred to Dr Miller’s evidence, but made no reference to the notes from Baringa Private Hospital or the material from Dr Knight, which did not link the Achilles tendinitis and the 2012 surgery in any event, Mr Inglis agreed that he was inviting the Arbitrator to infer that Dr Miller “gave the reason – the … surgery occurred” (T33.18–21).
The difficulty is that Dr Miller did not give any reason linking the 2012 surgery to Achilles tendinitis diagnosed in 2005. He merely said that the problems caused by the right knee injury were directly responsible for the aggravation of previously asymptomatic degenerative changes in the left ankle and foot. That did not come close to explaining the connection between the Achilles tendinitis diagnosed in 2005 and the triple arthrodesis in 2012. It simply did not address the issue at all.
While there will be many cases where causation can be inferred from the available evidence (see Diab v NRMA Ltd [2014] NSWWCCPD 72 where the evidence was in sharp contrast to the evidence in the present case) the Arbitrator did not err in failing to draw the inference urged by Mr Inglis. The drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience” (G v H [1994] HCA 48; 181 CLR 387 at 390). However, as the Arbitrator observed, it is not immediately apparent how an injury to the Achilles tendon in 2005 leads to the kind of surgery undertaken in 2012. I would have thought that the alleged connection is not apparent at all.
Moreover, the matters identified by Mr Parker at the arbitration (noted at [70]–[76] above), namely, the numbness in the left foot area of the second toe and over the head of the metatarsal in November 2006, the paraesthesia in the foot in early 2007, the absence of evidence linking the ankle pain in 2011 with the falls in 2005 and 2006, the tibialis posterior calcific tendinopathy in January 2012, and the injury to the navicular insertion of the left posterior tibial tendon, raised issues about causation that were not addressed by Dr Miller or any other expert.
A further complication arises from the history recorded by Mr Becker in his report of 1 February 2012 where he recorded that he saw Ms Ross on 30 November 2011 and took a history that “she had rolled her foot approximately 8 [sic] months ago at around about the 17/07/2011”. As noted earlier, an ultrasound on 22 July 2011 indicated left posterior tibialis calcific tendinopathy with multiple eccogenic foci within the tendon and abnormal blood flow around the tendon as well as a thickened appearance. In addition, as previously noted, the clinical note in the ultrasound report recorded “[n]avicular insertion of the left posterior tibial tendon, injured on 17/07/2011”. I have already referred to Dr Knight’s notes dealing with this incident (see [75] above) and will not repeat them.
Significantly, there is no evidence that the incident on 17 July 2011 resulted from the right knee injury.
The Arbitrator referred to the injury of 17 July 2011 and the ultrasound of 22 July 2011, Mr Parker having addressed on them at T52.26 and T53.25. The Arbitrator correctly observed (at [66]) that there was no explanation by Ms Ross “as to the reasons for the clinical note in the ultrasound report of 22 July 2011 referring to injury on 17 July 2011”. In these circumstances, the Arbitrator’s statement at [111] that the lack of explanation of the note gave pause to the acceptance of Ms Ross’s evidence at face value was appropriate. It was not a determinative factor, and the Arbitrator did not treat it as such, but it was one he was entitled to consider, and did consider, in his assessment of the case overall. That assessment included whether to accept Dr Miller’s evidence.
The weight to be given to Dr Miller’s evidence was a matter for the Arbitrator. Though Dr Stephens did not properly address the issues concerning the left ankle/foot (recording that Ms Ross had osteoarthritis of the “left hindfoot”, which she said was not a work-related condition), the Arbitrator was not obliged to accept Dr Miller’s evidence. There is no principle of law requiring a Court or tribunal to accept unchallenged evidence, at least in the absence of circumstances indicating unreasonableness to the point of perversity (SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 at [24], citing Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-8; Spencer v Bamber [2012] NSWCA 274 at [134], (Campbell JA, Basten and Macfarlan JJA agreeing)).
The Arbitrator was obliged to assess the probative weight of Dr Miller’s evidence in light of all the evidence in the case. Save for the notes from Baringa Private Hospital and the referrals from Dr Knight, that is what he did and his reasons more than adequately explained why he did not accept Dr Miller’s opinion. The Arbitrator was correct to observe that Dr Miller did not explain how the knee injury was responsible for the aggravation of what he (Dr Miller) thought were previously asymptomatic degenerative changes in the left foot and ankle and how that aggravation caused the need for the major surgery in July 2012.
I note, in passing, that Dr Miller’s (apparent) assumption that Ms Ross’s left ankle was asymptomatic before the 2005 fall was incorrect. Ms Ross had symptoms in her left ankle from as early as September 1999 and x-rays at that time revealed, among other things, degenerative lipping on the medial and lateral malleoli and possible underlying osteochondritis dissecans. This fact, noted by the Arbitrator at [31], though not expressed to be a reason for not accepting Dr Miller’s opinion, added to the need for Dr Miller to explain the connection between the falls in 2005 and 2006 and the need for the surgery in 2012. He did not provide that explanation. Indeed, he had no history at all of the 2006 fall.
In the circumstances, the Arbitrator’s failure to refer to the notes from Baringa Private Hospital, or the referral letters from Dr Knight that Mr Langler has raised on appeal, is of no consequence. That is because it has not affected the outcome. On the Arbitrator’s reasoning, that failure was only relevant once it is known whether, to establish the connection between the right knee injury and the need for the left ankle/foot surgery in 2012, Dr Miller was relying on the Achilles injury in 2005 or on Ms Ross favouring her injured right leg (noting that she expressed it as favouring her left leg). As Dr Miller did not address that issue, it is not known what he relied on.
I have not overlooked the Arbitrator’s statement (at [115]) that the “situation may have been otherwise” if there had been a level of consistency of complaint in the years after the initial onset of symptoms in 2005. The first thing to note about this statement is that the Arbitrator said “may” have been otherwise not “would” have been otherwise. More importantly, this statement must be read with the last sentence at [115], where the Arbitrator said that he was not able to conclude that “any problem with the Achilles persisted beyond 2007, or, if it did, whether the Achilles tendonitis was implicated in the causal mix leading to the arthrodesis in the left foot” (emphasis added).
The reference to “if it did” in the preceding paragraph was a clear and appropriate statement that, if the problem with the Achilles tendon persisted beyond 2007, which the notes from Baringa Private Hospital and the referrals from Dr Knight suggest was the case, that made no difference to the Arbitrator’s conclusion that he was not able to say that the Achilles tendinitis was implicated in the “causal mix leading to the arthrodesis in the left foot”. In other words, he was not satisfied that the need for the surgery in 2012 resulted from the accepted injury to the right knee. That finding did not depend on the notes from Baringa Private Hospital, or the referrals from Dr Knight. It followed from a proper and fair analysis of the expert evidence, or, more accurately, the lack of it.
It follows that the Arbitrator did not fail to give adequate reasons for not accepting Dr Miller’s opinion on the causation issue.
DR KNIGHT’S EVIDENCE
Submissions
Mr Langler referred to Dr Knight’s evidence in his report of 19 September 2005, where he said that Ms Ross was “suffering from Achilles tendonitis in her left ankle which I feel is a direct effect of the right knee injury”. He submitted that Dr Knight added that the extra load on Ms Ross’s left knee had accelerated the osteoarthritis in that knee and that Ms Ross would need physiotherapy and hydrotherapy, which was the treatment Ms Ross had for many years on her left foot ankle and foot.
Mr Langler submitted that, though the Arbitrator referred to this report, he did not expressly reject Dr Knight’s conclusion. Mr Langler contended that the Arbitrator’s failure to “engage with this opinion” and, if he did not accept it, to “give clear reasons for [not] doing so, was in error”.
Discussion and findings
I do not accept Mr Langler’s submissions.
The Arbitrator referred to Dr Knight’s evidence at [49], [51], [82] and [113]. At [49], the Arbitrator said:
“49.In regard to the applicant’s evidence of a fall in Sydney in February 2005 when the applicant says she injured her left ankle, her general practitioner Dr Knight did not record any complaint of that until 6 April 2005 when he noted an injury to the left ankle “ten weeks ago”, with recurrent swelling and pain in the ankle and foot. There is no mention of a fall, or of the right leg giving way contributing to that fall. In any event, an x-ray and ultrasound of the left Achilles tendon was ordered and that appears to have occurred on 8 April 2005 when focal thickening and swelling of the tendon, reflecting tendinitis, was observed. In the x-ray of the same date, bone spurring in the left ankle was observed.”
At [51], the Arbitrator said:
“51.[The] [r]eport of Dr Knight dated 19 September 2005 also noted the Achilles tendinitis in the left ankle which he said he felt was a ‘direct effect of the right knee injury’. He described the applicant’s current complaints as ‘chronic pain in both knees and ankles, requiring a walking aid’. As concerns the left ankle, he restricted his comments to Achilles tendonitis and the treatment by way of physiotherapy, hydrotherapy, medications and specialist review. He makes no specific link between the left ankle and a fall but did note in the report that the ‘extra load on the left knee has had to endure has accelerated osteoarthritis in that joint as well’.
The reference to Dr Knight at [82] is of no consequence and can be put to one side.
At [113], the Arbitrator said:
“113.[Ms Ross] has seen three different treating orthopaedic surgeons: Dr Chan, Dr Summersell and Dr Pepper. There is no report on causation from any. Likewise, there is no record of complaint to any of them regarding any ‘favouring’ of the right knee and extra stresses placed on the left ankle. Dr Knight, the general practitioner raises this issue, but in relation to multiple joints which are not the subject of the claim.”
At [114] the Arbitrator said that he did not feel “an actual persuasion of the existence” of a causal contribution between the falls in 2005 and 2006 and the left foot symptoms in 2006. He then gave additional reasons (at [115], which I have discussed earlier in this decision) for not accepting that Ms Ross had discharged the onus of proof.
It is patently obvious, on a fair reading of the Arbitrator’s reasons overall, that he did not accept that the evidence from Dr Knight, expressed in a report several years out of date, was sufficient to discharge the onus of proof Ms Ross carried. In the circumstances, no further reasons were required. It is not an error to omit to state expressly a finding that is clear on a fair reading of the whole decision (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [56], applied in Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667).
Mr Langler’s submissions demonstrate a fundamental misunderstanding of the issue in dispute. The issue was not Ms Ross’s entitlement to the cost of physiotherapy and other expenses incurred in and shortly after 2006, which Dr Knight’s report addressed, but which (as explained above) Ms Ross did not claim. The issue was Ms Ross’s entitlement to recover the cost of the triple arthrodesis performed in July 2012, and weekly compensation for the consequential incapacity flowing from that surgery, almost six years after Dr Knight wrote his report. As Dr Knight’s report was of no direct probative value to the issue in dispute, it was not necessary for the Arbitrator to deal with it in any more detail than he did.
This ground of appeal is rejected.
CONCLUSION
For the reasons explained above, though the Arbitrator erred in failing to consider the entries in the notes from Baringa Private Hospital, that error has not affected the outcome. As the other grounds of appeal are unsuccessful, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.
The Arbitrator’s formal orders, as set out in the Certificate of Determination of 1 August 2014, relate only to the s 55 review of Arbitrator Hertzberg’s award and do not refer to the claim for the left ankle/foot. However, though the Arbitrator made no orders in the Certificate of Determination of 1 August 2012 about the claims said to result from the left ankle/foot condition, in his reasons he made a clear “determination” that Ms Ross had no entitlement to compensation for that part of the claim. Such “determination” was a “decision” under s 352(8) of the 1998 Act. The challenge to that “determination” is rejected and the decision is confirmed.
DECISION
The Arbitrator’s determination of 1 August 2014 is confirmed.
COSTS
No order as to costs.
Bill Roche
Deputy President
11 November 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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