Saglimbeni v Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic - [2016] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Saglimbeni v Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic [2016] NSWWCCPD 22
APPELLANT:	Antonio Saglimbeni
RESPONDENT:	Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic
INSURER:	GIO General Limited
FILE NUMBER:	A1-1034/15
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	15 September 2015
DATE OF APPEALHEARING:	15 March 2015
DATE OF APPEAL DECISION:	15 April 2016
SUBJECT MATTER OF DECISION:	Whether insurer made a work capacity decision; s 43 of the Workers Compensation Act 1987; jurisdiction of the Commission to determine the dispute; factual findings; fresh evidence on appeal
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr Morgan, instructed by Carroll & O’Dea Lawyers
Respondent:	Mr Parker and Mr Flett, instructed by TurksLegal
ORDERS MADE ON APPEAL:	1. The respondent employer’s name is amended to “Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic”. 2. Paragraph 2 and orders 3 and 5 of the Certificate of Determination of 15 September 2015, are revoked. 3. Paragraph 1 and orders 1, 2 and 4 are confirmed. 4. The matter is remitted for re-determination by another Arbitrator in accordance with the reasons given in this decision.

BACKGROUND

The appellant worker, Mr Saglimbeni, was employed by the respondent, Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic, as a panel beater.
Mr Saglimbeni alleged that he had sustained injuries in the course of his employment in the following circumstances:
(a)     on 4 March 2011 he tripped over a car jack which had been used to hoist a motor vehicle. He alleged that he fell to the ground sustaining injuries to his neck and back;
(b)     on 11 March 2011 he was using a hammer when he inadvertently impacted the medial aspects (sic) of his left ankle with the hammer, and
(c)     on 5 August 2011 he developed pain and discomfort in the right shoulder following constant hammering and sanding.
In about August 2011 Mr Saglimbeni ceased work. He received weekly payments of compensation pursuant to s 40 of the Workers Compensation Act 1987 (the 1987 Act), as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), in respect of accepted injuries to his lumbar spine, left ankle and right shoulder.
On 16 October 2012, Mr Saglimbeni underwent an arthroscopic rotator cuff repair and acromioplasty, performed by Dr Harper, an orthopaedic surgeon, in respect of the alleged injury to the right shoulder.
The respondent’s insurer, GIO General Limited (GIO), initially accepted liability in respect of each of the alleged injuries. GIO subsequently sent several letters to Mr Saglimbeni declining liability in respect of the injuries. The contents of those letters are briefly described below.
On 3 April 2013, GIO wrote to Mr Saglimbeni informing him that due to “changes to the Workers Compensation Scheme…” his claim had been reviewed and as a result his weekly payments of compensation were to increase from 3 July 2013.
On 14 October 2013, GIO issued what purports to be a notice under s 54 of the 1987 Act and s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining liability for a special payment of compensation, payable pursuant to s 41(5) of the 1987 Act, for a period of incapacity arising from shoulder surgery (the relevant content of that letter is extracted below at [18]).
On 5 November 2013, Mr Saglimbeni submitted to surgery to the lumbar spine in the form of a laminectomy and the insertion of an interspinous spacer device at the L4/5 and L5/S1 levels. The operation was performed by Dr Coughlan, a neurosurgeon.
On 11 September 2014, GIO issued a notice under s 74 of the 1998 Act, declining further liability in respect of the injury to Mr Saglimbeni’s right shoulder sustained on 5 August 2011. This decision was based on an assessment made by Dr John Watson, orthopaedic surgeon, who examined Mr Saglimbeni on behalf of the respondent. Dr Watson opined that the effects of any work related injury would have ceased within six weeks following the surgery on the right shoulder on 16 October 2012.
On 11 September 2014, GIO issued a second s 74 notice. It declined liability with respect to the injuries to the lumbar and cervical spine sustained on 4 March 2011. GIO stated that liability was disputed because it had determined that injury to the cervical spine did not arise out of or in the course of employment and, if it did, employment was not a substantial contributing factor to the injury. It also asserted that any workplace injury to the lumbar spine had resolved. This decision was based on an assessment made by Dr Coroneos, a neurosurgeon who assessed Mr Saglimbeni and found that he experienced “either a lumbar soft tissue strain or exacerbation to pre-existing degeneration with no evidence of any structural injury having occurred”.
On 27 February 2015, Mr Saglimbeni lodged an Application to Resolve a Dispute (the Application) in the Commission. He claimed weekly compensation from 24 October 2014 to date and continuing in respect of the injuries referred to above (at [2]). He also claimed medical expenses and lump sum compensation in respect of 26 per cent whole person impairment for the injuries to the cervical and lumbar spine. The alleged injuries to the left shoulder, depression and relapse of chronic post-traumatic stress disorder pleaded in the application were not pursued.
On 20 March 2015, the respondent filed a Reply to the Application. It denied liability for the reasons identified in the s 74 notices. In addition, the respondent alleged that Mr Saglimbeni did not sustain any injury to the cervical spine on 4 March 2011. The respondent also alleged:
“That the Commission has no jurisdiction for weekly benefits compensation in respect of the injury dated 4 March 2011, given that a Work Capacity Decision has been made dated 14 October 2013.
…
That any assessment of incapacity must be restricted to incapacity that results from the right shoulder injury.
That [Mr Saglimbeni] does not suffer an inability to resume pre-injury duties as a consequence of the right shoulder condition.”
On 12 June 2015, the matter came before a Commission Arbitrator. No oral evidence was called at the arbitration proceedings.
On 14 September 2015, the Arbitrator delivered an extempore decision. On 15 September 2015, the Commission issued a Certificate of Determination in the following terms:
“Findings:
1.       I am not satisfied the applicant has discharged the evidentiary onus for me to be satisfied on the balance of probabilities that the applicant suffered injury pursuant to s 4 and 9A of the 1987 Act to his neck on 4 March 2011.
2.       I am satisfied the Respondent has made a work capacity decision in respect of the applicant’s entitlement to weekly payments compensation on about 14 October 2013
Orders made are as follows:
1.       By Consent – Application to Resolve a Dispute (Application) is amended at Part 4 to delete reference to paragraphs (d), (f) and (g) and at Part 5.1 to include reference to two dependant children.
2.       Award respondent in respect of the applicant’s claim of injury to the neck on 4 March 2011.
3.       The Commission has no jurisdiction to determine the applicant’s claim in respect of weekly payments [of] compensation.
4.       General order in favour of the applicant under section 60 of the 1987 Act.
5.       Matter is remitted to the Registrar for referral to an approved medical specialist.
The Registrar may refer the applicant to attend a medical examination by an approved medical specialist/s (AMS) as arranged by the Commission pursuant to Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998, if so, the AMS referral request will note matters including the following agreed by the parties:
Date of Injury:  4 March 2011
Body Part referred for assessment:      Lumbar spine
Method of Assessment:  Whole person impairment
Approved medical Specialist/s:           To be selected by Registrar
Documents admitted into proceedings for consideration by AMS:
1.Application to Resolve a Dispute (Application) (as amended) and attached documents.
2.Reply and attached documents
3.Applications to Admit Late documents
a.dated 9 June 2015 filed by the applicant
b.dated 9 June 2015 filed by the respondent
c.statement dated 12 June of Anna Saglimbeni”
Mr Saglimbeni appeals the Arbitrator’s determination.

GROUNDS OF APPEAL

Mr Saglimbeni submits that the Arbitrator erred in:
(a)     finding that Mr Saglimbeni had not suffered an injury to the neck pursuant to ss 4 and 9A of the 1987 Act;
(b)     finding that there was an absence of neck pain referred to in any of the contemporaneous records and documentation before him;
(c)     finding that the letter from GIO to Mr Saglimbeni of 14 October 2013 was a work capacity decision;
(d)     failing to address Mr Saglimbeni’s entitlement to an award of weekly compensation in respect of the injury to the right shoulder on 5 August 2011, and
(e)     finding that Mr Saglimbeni made a concession during the course of the arbitration hearing that he would not be entitled to an award of weekly payments of compensation in the event that the letter from GIO to Mr Saglimbeni of 14 October 2013 was found to be a work capacity decision.

PRELIMINARY MATTERS

Description of the respondent

The respondent employer was wrongly sued as “No 1 Smash Repairs & Mechanic”. The appellant sought leave to amend the pleadings to correct the record to describe the respondent as “Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic”. The respondent’s legal representatives do not oppose the application. I therefore order that the record be corrected to describe the respondent as “Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic”.

The alleged work capacity decision (ground (c))

The Arbitrator found that GIO’s letter to Mr Saglimbeni dated 14 October 2013 constituted a work capacity decision. The content of that letter relevantly provides:
“Matters in Dispute
1.   You have provided certificates of incapacity for time lost relating to surgery occurring on the 28.09.13;
2.   You have no entitlement to weekly payments of compensation for periods of time occurring associated with surgery recommended by Dr Coughlan
Reason insurer disputes liability
1.   You have received more than 130 weeks of weekly compensation
2.   Your certificate of capacity dated 28.09.13 states that you have had no capacity for work prior to your surgery
3.   Dr Tjeuw report dated 16.09.13 confirms you had not returned to work prior to the surgery
4. Section 41(5) of the Workers Compensation Act 1987 allows for weekly payments of compensation arising from the injury related surgery only in circumstances where you have had both capacity for work prior to the surgery and have returned to work in suitable employment for at least 15 hours per week and earning at least $155 per week
5. Accordingly GIO declines liability to make weekly payments for compensation associated with any periods of incapacity arising from your surgery as you do not qualify for weekly payments under Section 41(5) of the Workers Compensation Act 1987.
….”
The Arbitrator found that, “it is apparent that the practical effect and the substance of the letter relates to the insurer’s decision that [Mr Saglimbeni] has no entitlement to weekly payments [of] compensation, including because of its decision regarding [the] operation of section 41(5)” and because Mr Saglimbeni had already received in excess of 130 weeks’ of weekly payments of compensation (T39.19).
He then found (at T41.7):
“upon reading the provision of section 41(5) together with the provisions of section 43 the insurer’s decision made and communicated to the worker in a letter dated 14 October 2013, although not expressed in its title heading as a work capacity decision, nonetheless, has the effect of coming within the operation of section 43 of the Act.”
The Arbitrator noted that the parties agreed that if a work capacity decision had been made, by virtue of GIO’s letter of 14 October 2013 the Commission would be deprived of jurisdiction to entertain the claim for weekly payments of compensation (T38.14).
At the hearing of the appeal Mr Parker SC, counsel for the respondent, who did not appear at the arbitration, conceded that the Arbitrator erred in finding that the letter of 14 October 2013 constituted a work capacity decision. Mr Parker submitted, correctly in my view, that the letter merely informed Mr Saglimbeni that his claim for a special benefit (for limited weekly compensation following surgery) had been declined. It did not constitute a work capacity decision within the meaning of s 43 of the 1987 Act. Counsel therefore conceded that ground (c) would be made out and did not require a determination by the Commission.
Mr Parker conceded that although a submission to the contrary was made at the arbitration hearing, by the then counsel for the respondent, such a submission should not have been made (T2 19.19).
Mr Parker’s concessions were properly made. It follows that ground (c) must be upheld.

Amendment to the Application

At the hearing of the appeal, counsel for the appellant, Mr Morgan, withdrew the claim for lump sum compensation.
Mr Morgan foreshadowed that due to the ingestion of medication for relief of symptoms associated with Mr Saglimbeni’s alleged injuries, Mr Saglimbeni now suffers from a gastrointestinal condition. That condition may give rise to an entitlement to further lump sum compensation. Until that matter can be properly investigated and any additional entitlements claimed, Mr Saglimbeni has elected not to pursue his current claim for lump sum compensation.
The respondent did not oppose the amendment. Accordingly, the pleadings will be amended to delete the claim for lump sum compensation at [5.6] of the Application.

FRESH EVIDENCE

In a document titled “Further Amended Application to Appeal Against Decision of the Commission Constituted by an Arbitrator” lodged with the Commission on 9 February 2016, the appellant seeks leave to rely on two documents as fresh evidence:
(a) a vocational assessment report dated 20 January 2012, from Konekt Australia Pty Ltd (Konekt) to GIO, and
(b) a letter (with attachments) to Dr V Maniam, orthopaedic surgeon, dated 22 December 2015 from Carroll & O’Dea solicitors seeking clarification of Dr Maniam’s handwritten notes.
At the hearing of the appeal, the application to admit the letter as fresh evidence was not pressed. The admission of the Konekt report was not opposed.
‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
A key consideration on this appeal relates to an alleged error by the Arbitrator in failing to find that Mr Saglimbeni injured his neck on 4 March 2011, due to a lack of contemporaneous evidence of complaints of neck pain. It is submitted that the Konekt report, which was based on an assessment on 26 September 2011, recorded complaints of neck pain at that time. Thus, so it is argued, the report supports a finding of complaints of neck pain in September 2011, contrary to the Arbitrator’s finding that the first complaint of neck pain occurred in January 2012.
It is conceded that a copy of the report was in the possession of Mr Saglimbeni’s then solicitors at the time of the arbitration hearing. No explanation was offered as to why the report was not submitted into evidence before the Arbitrator, when numerous progress reports and correspondence from Konekt were included in the material before the Arbitrator. It follows that the first limb of s 352(6) cannot be satisfied.
The fact that the report was not included in the material before the Arbitrator is unexplained. That is unsatisfactory. Nevertheless, the report is clearly highly relevant to a fact in issue in the appeal. As there is no objection to the admission of the report and there is no prejudice to the respondent, in the circumstances I will admit it into evidence.
However, parties are reminded that fresh evidence will not normally be admitted on appeal unless one of the two limbs of s 352(6), as explained by the Court of Appeal in CHEP Australia Ltd v Strickland [2013] NSWCA 351, are satisfied.

EVIDENCE

The following is a summary of the evidence in so far as it is relevant to the issues in dispute.

Mr Saglimbeni

In his statement dated 25 February 2015, Mr Saglimbeni states that on 4 March 2011 in the course of his employment with the respondent he sustained an injury to his “neck and lower back”. He states that following that injury he consulted his treating general practitioner, Dr Hussain, who referred him to Dr Maniam, orthopaedic surgeon. Mr Saglimbeni claims that he told Dr Maniam on 8 April 2011 that he had “experienced neck, back and right shoulder pain since [the] accident on 4 March 2011”.
Dr Hussain also referred Mr Saglimbeni to Dr Coughlan, a neurosurgeon. Mr Saglimbeni said that when he attended on Dr Coughlan on 27 September 2011 he complained of pain in his neck and back since the injury at work on 4 March 2011. Following which, Dr Coughlan referred Mr Saglimbeni for an MRI scan of his cervical and lumbar spines.
In a further statement, dated 27 May 2015, Mr Saglimbeni states:
“Following my injury on 4 March 2011 I consulted my general practitioner, Dr Hussain and consistently complained at all consultations commencing in March 2011 of severe neck pain radiating to my left shoulder and down my left arm associated with numbness…[O]n 27 September 2011, I told Dr Coughlan I had severe neck pain radiating down my left shoulder into my left arm as far as the elbow and numbness in my thumb and index finger dating from the accident of 4 March 2011.”

Mrs Saglimbeni

Mrs Saglimbeni provided a statement dated 12 June 2015. Mrs Saglimbeni states that Mr Saglimbeni sustained an injury at work on 4 March 2011 and from that time he “always complained to [her] of neck pain in addition to low back pain”. She added that Mr Saglimbeni “also complained to each of his treating doctors about neck pain”. She specifically recalled asking Dr Hussain to note Mr Saglimbeni’s complaint of neck pain because he did not seem to be recording them. Mrs Saglimbeni said that Dr Hussain said that “you can’t put down too many things”.

Yachan Zhao

Mr Zhao, Mr Saglimbeni’s co-worker, witnessed the incident on 4 March 2011. Mr Zhao said that Mr Saglimbeni tripped over a car jack. He said:
“He feel [sic] over on his left side and landed on a steel floor Pulling Rack (which has bolts) which is bolted to the floor
Hurting his left leg, hip and thigh and lower Back”

Other evidence

On 4 March 2011, Mr Saglimbeni attended on Dr Hussain. Dr Hussain’s clinical notes record:
“LOWER BACK, LEFT THIGH AREA AND LEFT LE[G]”

On 31 March 2011, Mr Saglimbeni completed a Worker’s Injury Claim Form with respect to the incident on 4 March 2011. The form describes the injury to have occurred as follows:
“I was working on a car at work. I tripped over the car jack that was underneath the car that was jacking the car up. I fell over on my left side and landed on a steel floor pulling rack which is bolted to the floor.”

Mr Saglimbeni stated on the claim form that the following body parts were affected:
“Lower Back IN PaiN
Hip aNd THigh area iN PaiN (LeFT)
Left leg Numb iN areas
PiNs and needles in thigh area (LeFT).”
On 9 November 2011, Mr Saglimbeni underwent an MRI of his lumbar and cervical spine at the request of Dr Coughlan. In a report to Dr Coughlan, dated 9 November 2011, Dr Hiew, radiologist, recorded the following brief history:
“L5/S1 discopathy. Left S1 pain. Chronic neck pain.”
Dr Hiew’s reported findings state:
“Degenerative intervertebral disc changes present at C4/C5 and C5/C6. Moderate spinal canal stenosis at C4/C5 with mild spinal canal stenosis at C5/C6. No nerve root impingement.”
Dr Hussain referred Mr Saglimbeni to Dr Maniam, an orthopaedic surgeon. Mr Saglimbeni initially saw Dr Maniam on 8 April 2011. In a report to Dr Hussain dated 25 July 2011, Dr Maniam records that on 8 April 2011 Mr Saglimbeni informed him that:
“On 4 March 2011, he was crouched to do some work and whilst straightening up, he hit the handle of a talon jack. He sustained injury to the lumbar spine. He developed severe pain and soon thereafter noticed the symptoms radiate into the left thigh.”

The earliest reference to the cervical spine recorded by Dr Maniam appears in his consultation notes of 12 December 2011 which records “New MRI C. + L. spine”. This is presumably a reference to the MRI of the cervical spine conducted on 9 November 2011.
Mr Saglimbeni saw his general practitioner Dr Hussain on numerous occasions after the initial injury on 4 March 2011. However, the first reference to neck pain in Dr Hussain’s clinical notes is on 16 January 2012. Dr Hussain recorded:
“pain in the neck and back
gets worse on working
tramal helps”

On 22 March 2012, Mr Saglimbeni attended on Dr Patrick, general and vascular surgeon, at the request of his then solicitors. In a report dated 23 April 2012, Dr Patrick noted the following history with respect to the alleged injury on 4 March 2011:
“He inadvertently tripped over a car jack which had been used to hoist a motor vehicle. He fell to the left, sustaining probably [a] significant twisting injury to his low back as he fell. He developed acute low back pain, and subsequently was aware of some altered sensation lateral left leg, and later going into [sic] lateral toes of left foot, and later on into [sic] big toe [sic] left foot.”

On 6 May 2013, Mr Saglimbeni was examined by Dr Home, consultant in occupational medicine, at the request of GIO. In a report dated 6 May 2013, Dr Home recorded the following history in respect of the 4 March 2011 incident:
“Mr Saglimbeni states that he sustained injury to his neck and lower back on 4 March 2011whilst working as a panel beater. He tripped over a jack, flew into the air and landed on his back. He recalls persisting pain in his neck and lower back.”
On 16 September 2013, Mr Saglimbeni was assessed by Dr Tjeuw, consultant rheumatologist, at the request of Dr Hussain. In a report dated 16 September 2013, Dr Tjeuw recorded the following history:
“[Mr Saglimbeni’s] date of injury was 4.3.11. He was working as a panel beater. He arose from a crouching position to place an object down and as he turned, he flipped himself over and [sic] angled handle of a jack, flipping head over heels and landing on a Z shaped metal plate. He landed quite heavily on his left side and since then, he complains of ongoing neck and lower back pain.”

In a further report, dated 23 April 2014, Dr Patrick re-visited the effects of the 4 March 2011 incident. He opined that:
“It does appear that as well as injury to his lumbar spine, the likelihood is that he has also sustained injury to cervical spine at this time, although there appears to be a dearth of contemporaneous documentation supporting cervical spinal injury. Nevertheless, neck injury is very consistent with the mechanism of injury as described, with him falling to the left with twisting and landing heavily on his left side largely. The mechanism of injury is described in some detail by Dr Michael Tjeuw, specialist rheumatologist in a report by him on 16 September 2013, and this is consistent.”

THE DECISION UNDER REVIEW

Injury to the neck

The Arbitrator was not persuaded on the evidence presented that Mr Saglimbeni suffered an injury to his neck on 4 March 2011.
He concluded that the evidence of both Mr and Mrs Saglimbeni of persistent complaints of neck pain to treating doctors on and from 4 March 2011 was so inconsistent with the absence of any contemporaneous report of injury to the neck after the incident on 4 March 2011 that it could not be accepted.
The Arbitrator found that, notwithstanding Mr and Mrs Saglimbeni’s evidence that they made complaints of neck pain to Dr Hussain on and from 4 March 2011, there were no recorded complaints in Dr Hussain’s clinical notes until 16 January 2012, despite numerous opportunities to have those complaints recorded (T7.19).
The Arbitrator rejected the history obtained by Dr Tjeuw (T19). He noted that that history was obtained some two and a half years after the incident on 4 March 2011. He found that Mr Saglimbeni’s complaints to Dr Tjeuw of neck pain immediately after the 4 March 2011 incident were unsupported by contemporaneous record of complaints of neck pain.
The Arbitrator did not accept Dr Patrick’s revised opinion in his report of 23 April 2014 (T21.32). Dr Patrick’s revised conclusion that Mr Saglimbeni sustained injury to his neck on 4 March 2011 relied on the history obtained by Dr Tjeuw which the Arbitrator did not accept. He concluded that Dr Patrick’s revised opinion as to the aetiology of the neck injury was based on an inaccurate history and did not provide a fair climate for the acceptance of his opinion (T21).
The Arbitrator rejected Dr Hussain’s opinion. He concluded that the opinion expressed in Dr Hussain’s brief report of 24 December 2014, namely that Mr Saglimbeni sustained injuries to his back and neck in the incident of 4 March 2011, was inconsistent with his contemporaneous and comprehensive clinical records (T23.3). The Arbitrator concluded that the views expressed by Dr Hussain were without any reasons or explanation. He held that Dr Hussain’s statement was a mere “ipse dixit” and carried no probative value (T23.19).
The Arbitrator accepted that Mr Saglimbeni had been referred for an MRI of the cervical spine on 9 November 2011 by Dr Coughlan. The Arbitrator concluded that there was no direct evidence to link the cause of the referral to an injury to Mr Saglimbeni’s spine on 4 March 2011 (T24.5–T32.1). He inferred that the reason for the referral was more likely to be the result of the alleged injury on 5 August 2011 rather than the incident on 4 March 2011 (T24). He found that this was also consistent with Dr Patrick’s first report which recorded a history of onset of cervical pain in or about 5 August 2011 in association with long periods of hammering and sanding (T24.16).
The Arbitrator found that Dr Home’s evidence, that is, that Mr Saglimbeni “flew into the air” as a result of the incident on 4 March 2011, was inconsistent with Mr Saglimbeni’s initial evidence (T26.31). He also noted that the history taken by Dr Home was two and a half years after the alleged incident and was not contemporaneous (T27.13).
The Arbitrator rejected a submission that the delay in reporting the neck was because of Mr Saglimbeni’s focus on his more significant back injury (T27.23). The Arbitrator found that the submission was inconsistent with Mr Saglimbeni’s evidence (T27.25). Further, he found that it was inconsistent with the history given by Mr Saglimbeni to Dr Tjeuw in 2013, namely, that he had been suffering from neck pain continuously since 4 March 2011 (T27.26). It was also inconsistent with Mrs Saglimbeni’s evidence of ongoing complaints of neck pain since the initial incident on 4 March 2011 (T27.30).
The Arbitrator found that Mrs Saglimbeni’s evidence failed to identify when complaints of neck pain were made to Dr Hussain. It failed to give any detailed account of what complaints were actually made and, in particular, whether those complaints were alleged to be causally related or temporally related to the injury on 4 March 2011. He concluded that Mrs Saglimbeni’s evidence was of “little probative value” (T34.2) and of “almost no weight” (T34.17). It failed to counter his findings in respect of a lack of contemporaneous complaints of neck pain arising from the 4 March 2011 incident.
The Arbitrator found that the expert opinions that had been provided, including Dr Hussain, Dr Coughlan, Dr Patrick and Dr Tjeuw, were based on what he found to be “either an inaccurate or incomplete history as to the timing of onset of any pain in [Mr Saglimbeni’s] neck being referable to the 4 March 2011 event” (T5.3). He found that evidence “failed to establish a causal connection between any neck pathology or symptoms that he may have presented with when seen was connected to the 4 March 2011 incident” (T4.30).
The Arbitrator found that he was not left with an actual persuasion or comfortable satisfaction of the existence of the fact that Mr Saglimbeni suffered injury to his neck on 4 March 2011 (T37.15) (Nguyen v New South Wales Cosmopolitan Homes [2008] NSWCA 246).
Accordingly, the Arbitrator entered an award in favour of the respondent in respect of the injury to the neck.

THE NECK INJURY

Mr Saglimbeni’s submissions

Mr Saglimbeni submits that contrary to the Arbitrator’s finding that he failed to explain how he injured his neck on 4 March 2011, in his statement dated 25 February 2015 he confirmed that the injuries to his neck and back were sustained when he inadvertently tripped over a car jack on 4 March 2011.
In his written submissions, Mr Morgan, submitted that the Arbitrator overlooked the evidence contained in Mr Saglimbeni’s statement of 27 May 2015, concerning his consultation with Dr Coughlan. Mr Morgan submitted that Mr Saglimbeni told Dr Coughlan that he was experiencing severe neck pain radiating from his left shoulder into his left arm as far as the elbow and numbness into his thumb and index finger, dating from the accident on 4 March 2011.
Mr Saglimbeni was then referred by Dr Coughlan to Dr Hiew for an MRI scan of the cervical spine which was performed on 9 November 2011. The report of that examination by Dr Hiew recorded a history of “chronic neck pain”.
Mr Morgan submitted that the Arbitrator erred when he concluded that there was no contemporaneous record of injury to the neck. In particular he failed to have regard to or place any weight on the reported complaints of neck pain to Dr Coughlan and Dr Hiew.
At the hearing of the appeal Mr Morgan alleged that the Arbitrator erred in failing to explain why he did not accept the evidence of either Mr or Mrs Saglimbeni regarding complaints of neck pain following the injury at work on 4 March 2011.
Mr Morgan submitted that Mrs Saglimbeni’s hand written statement prepared on the day of the hearing (12 June 2015) was in response to an issue raised by the employer for the first time on the day of the hearing. That issue was that the employer denied injury, per se, occurring on 4 March 2011. Whereas the dispute notified in the s 74 notice of 11 September 2014, alleged that the effects of any aggravation of the degenerative condition in Mr Saglimbeni’s lumbar and cervical spine had ceased within 6-8 weeks of the alleged incident.
It is submitted that it was in response to the late notification of that issue that Mrs Saglimbeni’s hand written statement was hurriedly prepared. Mrs Saglimbeni’s evidence in that statement confirmed consistent complaints of neck pain both to her and all treating doctors since 4 March 2011. It is alleged that the Arbitrator erred in failing to explain why the evidence of Mr and Mrs Saglimbeni of complaints of neck pain following the injury on 4 March 2011 were not accepted.
In terms of the lack of any contemporaneous record of complaints of neck pain, Mr Morgan conceded that there is no evidence of any contemporaneous record of neck pain prior to the mention of neck pain recorded by Konekt in its report of 20 January 2012 regarding its assessment of Mr Saglimbeni on 26 September 2011. Mr Morgan conceded that a period of at least six months elapsed before there were any reported symptoms of neck pain.
Further, Mr Morgan submitted that the lack of contemporaneous recording of neck symptoms does not necessarily reflect a failure to report those symptoms, merely a failure to record them. Mr Morgan submitted that this is consistent with Dr Coughlan’s evidence which does not report neck pain until mid-2012, yet it is accepted that he arranged for an MRI of the cervical spine in November 2011.
Mr Morgan also submitted that the Arbitrator erred in failing to consider the dispute raised in the s 74 notice, namely that the effects of any aggravation of a pre-existing degenerative condition had ceased.

Consideration

Section 352 of the 1998 Act, under which this appeal proceeds, is characterised by the identification and correction of error. In order to succeed on appeal under s 352 it must be established that the Arbitrator’s decision was wrong, not that a different conclusion may have been reached by a Presidential member hearing the appeal.
In Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 Roche DP (at [20]) said:
“The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
The Arbitrator correctly identified that in accordance with Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011, when informing itself on any matter the Commission is to bear in mind the principle that the evidence should be logical and probative.
The Arbitrator considered all of the evidence at length including whether the evidence of Mr and Mrs Saglimbeni as to the injuries sustained on 4 March 2011 should be accepted. He noted that Mr Zhao, who witnessed the incident on 4 March 2011, stated that after the incident Mr Saglimbeni complained of injury to the left leg, hip and thigh and lower back. There is no recorded complaint of neck pain referred to in Mr Zhao’s account of the incident.
The Arbitrator analysed the description of the injury in the claim form in respect of the incident on 4 March 2011. He noted in particular that the recorded injuries were those to the lower back, left hip, left thigh and left leg. The claim form made no mention of an injury to the neck on 4 March 2011.
When Mr Saglimbeni initially saw his general practitioner Dr Hussain, immediately after the incident on 4 March 2011, Mr Saglimbeni claims that he complained of neck symptoms. However, Dr Hussain’s clinical records do not substantiate Mr Saglimbeni’s claim. There are no recorded complaints of neck symptoms in Dr Husain’s notes until 16 January 2012.
The report from Konekt of 20 January 2012 does not assist Mr Saglimbeni. The history recorded in that report, based on the assessment on 26 September 2011, is one of injury to the back as a result of falling over the handle of a car jack and landing on the left side of his back on 4 March 2011. The report makes no reference to an injury to the neck at that time. Rather, it records Mr Saglimbeni reporting pain radiating from the right side of his shoulder to the side of his neck, occasionally inhibiting the range of movement of his neck.
In any event, even though it advances the point at which the Arbitrator first recorded complaints of neck pain from January 2012 to September 2011, it could not be said to be a contemporaneous report of injury on 4 March 2011. As Mr Morgan conceded, more than six months elapsed after the alleged injury before this entry was made. Furthermore, there is nothing in the Konekt report concerning the aetiology of the complaints of neck pain and certainly no reference to the neck pain as having been permanently present since the incident of 4 March 2011, as Mr Saglimbeni now alleges.
As the Arbitrator correctly observed, Mr Saglimbeni saw Dr Hussain on more than 50 occasions between 4 March 2011 and the first recorded complaints of neck pain on 16 January 2012. These attendances presented him with numerous opportunities to report neck pain yet, according to Dr Hussain’s notes, he failed to do so for over eight months. The Arbitrator found that Mr Saglimbeni’s explanation that the absence of contemporaneous reporting of neck symptoms was due to a refusal by his doctors to record the neck symptoms, was unlikely and implausible. That was a finding of fact that was open to the Arbitrator on the evidence and involved no error. It follows that I reject the submission that the Arbitrator overlooked the evidence in Mr Saglimbeni’s statement.
Mr Saglimbeni’s complaint of persistent neck pain following the incident on 4 March 2011 is also inconsistent with the history obtained by Dr Coughlan. In his first report dated 27 September 2011, Dr Coughlan reported only complaints of back and left leg pain.
About a year later, on 26 August 2012, Dr Coughlan revised his opinion. At that point he felt that there was a likelihood that Mr Saglimbeni also sustained an injury to his cervical spine in the incident on 4 March 2011. He opined that such an injury would be consistent with falling to the left, twisting and landing heavily on the left part of the body in the manner reported by Dr Tjeuw in his report of 16 September 2013. Dr Tjeuw’s history, which the Arbitrator did not accept, was that Mr Saglimbeni arose from a crouching position to place an object down and, as he turned, he flipped himself over an angled handle of a jack, flipping head over heels.
The history obtained by Dr Tjeuw is inconsistent with Mr Zhao’s evidence, the description of the injury contained in the claim form, Dr Hussain’s initial report (30 March 2011), Dr Coughlan’s initial report and Dr Maniam’s additional report, at least in so far as none of that material makes any reference to the incident involving Mr Saglimbeni “flipping head over heels”. For these reasons, and for the reasons expressed by the Arbitrator, he was correct to conclude that the opinion expressed by Dr Coughlan in his second report was based on an inaccurate history.
For the reasons given in the preceding paragraphs, I reject the submission that the Arbitrator failed to have regard to or place any weight on complaints of neck pain reported to Dr Coughlan. He considered that evidence and, for the reasons given, did not accept it.
Given that Mr Morgan accepted that there was no contemporaneous record of complaints of neck pain for at least six months after the incident on 4 March 2011, it is reasonable to infer, although the Arbitrator did not make an express finding to this effect, that he did not accept the history given to Dr Hiew in November 2011, of chronic neck pain, as reliable or having any weight.
I reject Mr Morgan’s submission that the Arbitrator erred by failing to explain why he rejected Mrs Saglimbeni’s evidence. As the Arbitrator explained, Mrs Saglimbeni did not give any detailed account of the actual complaints that were allegedly made to Dr Hussain, nor that such complaints were causally or temporally related to the incident on 4 March 2011. The Arbitrator considered the weight to be given to Mrs Saglimbeni’s evidence. He was not satisfied that it was of sufficient weight to outweigh a complete lack of any contemporaneously recorded complaints of neck pain arising from the incident on 4 March 2011, particularly in circumstances where there were numerous opportunities for such a complaint to be recorded. That finding was open to the Arbitrator and does not involve error.

The fact that Mrs Saglimbeni’s evidence was given in response to a late amendment of the application does not assist Mr Saglimbeni. The amendment to the application was not opposed and no application for an adjournment was made to give Mr Saglimbeni time to meet the matters raised by the amendment. Whether the statement was given on the day of the hearing or at some other time would not have affected the weight given to Mrs Saglimbeni’s evidence, for the reasons given by the Arbitrator, namely that it was so inconsistent with all contemporaneous evidence that it could not be accepted.
I also reject Mr Morgan’s submission that the Arbitrator erred by failing to provide reasons for not accepting that there had been an aggravation of a degenerative condition affecting the cervical spine as a result of the incident on 4 March 2011. The case that was presented to the Arbitrator in relation to the alleged cervical injury was not based on the disease provisions. The matter was pleaded and run as a frank injury occurring on 4 March 2011, that is, a personal injury under s 4(a) of the 1987 Act. Mr Morgan placed no reliance on the disease provisions at the Arbitration. The Arbitrator cannot have erred by failing to deal with an issue not argued before him (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). In any event, once it is accepted that Mr Saglimbeni suffered no trauma to his neck on 4 March 2011, the question of aggravation of a disease does not arise.
For these reasons the Arbitrator’s findings and orders with respect to the alleged injury to the cervical spine are confirmed.

THE INJURY TO THE RIGHT SHOULDER

Submissions and findings

The issues before the Arbitrator included the dispute in relation to the alleged injury to Mr Saglimbeni’s right shoulder. The dispute was essentially whether any incapacity in relation to the right shoulder injury was continuing and if so whether such incapacity was due to the effects of a work related injury or to a constitutional condition.
As Mr Morgan submitted and as Mr Parker conceded, the Arbitrator’s failure to determine that issue was an error. As any perceived jurisdictional impediment to that issue proceeding has now been clarified that matter must now be determined. Mr Morgan submitted that the matter should be remitted to another Arbitrator to determine that issue and any other remaining issues. Mr Parker did not object to the matter being remitted.
It is accepted that Mr Saglimbeni was an “existing recipient” of weekly payments of compensation immediately before 1 October 2012. That being the case, Mr Saglimbeni is entitled to the benefits of the former weekly payments regime until he has been transitioned under the new regime introduced by the 2012 amending Act.
The parties were not in a position to indicate to me whether that transition had taken place and, if so, whether the worker had exhausted his entitlements in the second entitlement period in respect of any or all of the injuries pleaded. Moreover, the parties were not in a position to address on the question of incapacity arising from the pleaded injuries until the Commission determined the challenge to the Arbitrator’s finding that Mr Saglimbeni did not injure his cervical spine.
In the circumstances, I agree that the preferable course is to remit the matter for re-determination by another Arbitrator in accordance with the reasons given in this decision.

ORDERS

The respondent employer’s name is amended to “Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic”.
Paragraph 2 and orders 3 and 5 of the Certificate of Determination of 15 September 2015, are revoked.
Paragraph 1 and orders 1, 2 and 4 are confirmed.
The matter is remitted for re-determination by another Arbitrator in accordance with the reasons given in this decision.

Judge Keating
President

15 April 2016