Seles v State Transit Authority of NSW - [2020] NSWWCCPD 55

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Seles v State Transit Authority of NSW [2020] NSWWCCPD 55
APPELLANT:	Jaclyn Seles
RESPONDENT:	State Transit Authority of NSW
INSURER:	Transport for NSW
FILE NUMBER:	A1-6797/19
SENIOR ARBITRATOR:	Ms J Bamber
DATE OF SENIOR ARBITRATOR’S DECISION:	7 April 2020
DATE OF APPEAL DECISION:	27 August 2020
SUBJECT MATTER OF DECISION:	Findings of fact – Fox v Percy [2003] HCA 22; 214 CLR 118; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; *Workers Compensation Nominal Insurer v Hill* [2020] NSWCA 54; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied; adequacy of reasons – Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied; acceptance of and weight to be afforded to the evidence – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr H Halligan, counsel
Beilby Poulden Costello
Respondent:
Mr R Hanrahan, counsel
Gair Legal
ORDERS MADE ON APPEAL:	1. The name of the respondent wherever it appears is amended to read State Transit Authority of NSW 2. Senior Arbitrator’s Certificate of Determination dated 7 April 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Jaclyn Seles (the appellant) was employed by the State Transit Authority of New South Wales (the respondent) as a personal assistant. On 22 May 2012, as she was preparing to leave work for the day, the appellant tripped and fell down two steps, suffering an undisplaced fracture of the right radial head of the elbow joint. The appellant claimed compensation and the claim was accepted. The appellant returned to work three weeks later and continued to work, until she took maternity leave in about early 2014. The appellant thereafter remained at home as a full-time carer of her two children.
On 1 March 2018, the appellant was lifting her daughter into a low chair when her arm locked. When she let go of her daughter, the arm unlocked, and at the same time she experienced pain and a strange numbness. The appellant asserted that she had previously felt the symptoms of numbness but attributed them to holding her sleeping children.
The appellant claimed compensation, alleging that the symptoms resulted from the work-related injury that had occurred in 2012. The respondent ultimately declined liability, denying that there was a causal connection between the injury on 22 May 2012 and the incident on 1 March 2018.
The matter proceeded to arbitration before Senior Arbitrator Bamber. In a Certificate of Determination dated 7 April 2020, the Senior Arbitrator found that she was not satisfied that there was a causal connection between the symptoms commencing from 1 March 2018 and the injury on 22 May 2012.
The appellant appeals that decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the written submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

The Application to Appeal Against Decision of Arbitrator (the appeal) was filed within the time prescribed by s 352(4) of the 1998 Act. A delegate of the Registrar set a timetable for the proceedings which required the respondent to file its Notice of Opposition to the appeal (the opposition) and any supporting documents by 4 June 2020. The respondent did not file its opposition until Tuesday 9 June 2020, which was two business days after it was due.
The respondent then filed submissions as to why an extension of time to lodge the opposition and submissions should be granted. The appellant opposed the application. The delegate of the Registrar considered both parties’ submissions and on 11 June 2020, issued a Direction, extending the time for filing the opposition and attached documents to 9 June 2020.
There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
The name of the respondent nominated in the appeal was “State Transit Authority.” The respondent sought to have the name amended, citing the proper entity as “State Transit Authority of NSW.” The appellant consented to the amendment. The name of the respondent is amended accordingly.

THE EVIDENCE

The appellant’s statement

The appellant provided a statement dated 21 June 2019.[1] The appellant said that she commenced full time employment with the State Transit Authority of NSW in May 2007 as a personal assistant. The appellant described her employment duties.
[1] Application to Resolve a Dispute (ARD), pp 10–18.
The appellant stated that on 22 May 2012, in the course of her duties, she was preparing to leave work for the day when she tripped and fell down two steps onto her outstretched right arm, landing heavily on her elbow and right arm. The appellant said that she heard and felt a crack and instantly felt pain, which radiated up her arm. She said she was taken by ambulance to the Prince of Wales Hospital and was seen in the Emergency Department, where a suspected elbow fracture was diagnosed. The fracture was later confirmed at the Prince of Wales Fracture Clinic on 28 May 2012. The appellant described her subsequent treatment and return to work.
The appellant alleged that the pain and symptoms in her right elbow persisted ever since then, and that her right arm would occasionally lock and unlock when she was carrying weights, such as a bag of groceries.
The appellant reported that on 1 March 2018, she was putting her daughter in a low chair and as she was lowering her, the appellant felt her arm lock and then unlock when the appellant let go of the child. The appellant complained that she felt that she had re-fractured her elbow. She said that, as well as suffering from pain, she experienced numbness in her arm which she had in fact previously felt but had usually attributed that symptom to one of her children having fallen asleep on her. The appellant said that the task of putting her daughter in the low chair was not overly strenuous and such an incident had not happened previously. The appellant reported that her doctors had told her that this incident would not have happened had it not been for the earlier, work-related injury.
The appellant described her ongoing treatment and the difficulties she continued to experience after the incident at home.

The relevant correspondence

On 20 July 2018, the appellant wrote to Mr Brendan Rabbitt, the respondent’s Depot Director, in relation to her return to work.[2] The appellant advised Mr Rabbitt that she had previously fractured her right elbow at work in 2012 and had experienced “little niggles” ever since, but nothing like the pains she had been experiencing since March 2018.
[2] ARD, p 149.

Dr Neale Gunning, general practitioner

Dr Gunning, the appellant’s treating general practitioner, provided a report dated 25 June 2019 directed to the appellant’s legal representatives.[3] Dr Gunning said that the appellant attended the practice on 7 June 2012 complaining of continuing pain following the work-related injury. Dr Gunning noted the details of the work-related injury, which he said was diagnosed as a displaced right radial head fracture with haemarthrosis. Dr Gunning reported that the appellant returned to work in a full-time capacity from 13 July 2012.
[3] ARD, pp 19–20.
Dr Gunning recorded that the appellant returned to the practice in March 2018 following the event at home, complaining of paraesthesia in the distribution of the ulnar nerve. Dr Gunning referred to the findings reported in a CT Scan of the cervical spine, which he said showed no significant degenerative changes and no nerve root exit foraminal narrowing which indicated that the paraesthesia was unlikely to be as a result of a pinched nerve in the neck. Dr Gunning said he referred the appellant to Dr Craig Presgrave, neurologist, and the appellant was also referred to Dr Loretta Reiter, radiologist.
Dr Gunning noted that the appellant was in “considerable pain, much of it related to the right elbow which was fractured in May 2012.”[4] Dr Gunning remarked that there was some uncertainty about the nature of the appellant’s pain after the incident in 2018 and its relationship to the original work-related injury. Noting the respondent’s declinature of liability for the 2018 claim, Dr Gunning observed that whether that was reasonable would depend upon the outcome of specialist opinion.
[4] Dr Gunning’s report, ARD, p 20.
Dr Gunning’s referral of the appellant to Dr Presgrave dated 18 April 2018 was also in evidence.[5] Dr Gunning advised Dr Presgrave that the appellant was suffering from paraesthesia of the right arm in an ulnar distribution, which had been fairly constant for six weeks and which the appellant initially considered was related to lifting and holding her children. Dr Gunning noted that the appellant also had intermittent pain in the right shoulder, and he advised Dr Presgrave of the fracture of the right elbow in 2012.
[5] ARD, p 66.
Dr Gunning’s clinical notes were annexed to the ARD.[6] Of relevance were the following entries:
(a)    on 7 June 2012, it was noted that the appellant had fractured her right elbow at work;[7]
(b)    on 24 February 2016, the appellant complained of a lump on her right elbow and an ultrasound was arranged;[8]
(c)    on 4 November 2016, the appellant reported pain in the right wrist and thumb and a referral for an x-ray investigation was arranged;[9]
(d)    on 9 December 2016, pain in the right wrist and thumb, present for two months, persisted, despite a normal x-ray,[10] and
(e)    on 6 March 2018, the appellant complained of recent sudden pain over the right medial condyle with paraesthesia of the ulnar region as well as pain above the elbow and clicking on pronation and supination. An x-ray was normal and an ultrasound of the right elbow was arranged.[11]
[6] ARD, pp 37–43.
[7] ARD, p 37.
[8] ARD, p 39.
[9] ARD, p 40.
[10] ARD, p 40.
[11] ARD, p 40.
Dr Gunning also provided a number of certificates of capacity. Relevantly, in a certificate of capacity dated 10 December 2018, Dr Gunning diagnosed the appellant as suffering from Chronic Regional Pain Syndrome (CRPS) with a nominated date of injury as May 2012.[12]
[12] ARD, pp 89–91.

Dr Craig Presgrave, neurologist and neurophysiologist

Dr Presgrave conducted nerve conduction studies of the appellant’s right arm on 22 May 2018 and concluded that the findings were suggestive of a mild right ulnar neuropathy, possibly at the elbow.[13] Dr Presgrave arranged for the appellant to undergo an MRI scan of the right elbow, which was undertaken on 7 June 2018.[14] Dr Presgrave reported to Dr Gunning on the same day that the MRI scan showed increased signal within the ulnar nerve but without definite compression and that there was also evidence of tendinosis in the common extensor tendon. Dr Presgrave said that the appellant’s main concern was pain, which he considered would be related to the ulnar neuropathy. Dr Presgrave advised against ulnar nerve surgery and arranged for the appellant to undergo right ulnar nerve ultrasound guided steroid injections.[15]
[13] ARD, pp 68–69.
[14] ARD, p 70.
[15] ARD, p 71.
On 12 July 2018, Dr Presgrave reported that the ultrasound injection provided complete relief of the appellant’s pain in the common extensor region, but that the ulnar nerve injection at the cubital tunnel had not offered any relief of the sensory symptoms in the right hand. Dr Presgrave noted that the appellant was now experiencing more pain along the border of the biceps extending to the shoulder, resulting in some limitation of shoulder movement. Dr Presgrave further noted that the appellant displayed mild impairment of the ulnar nerve distribution in the right hand which was a small component of the appellant’s symptomology and was unlikely to benefit from surgery. Dr Presgrave remarked that he suspected that the appellant’s past elbow fracture “might have set off other musculoskeletal issues”, recommended monitoring of the ulnar nerve symptoms and a referral to a rheumatologist for further opinion.[16]
[16] ARD, p 74.

Dr Ron Granot, neurologist and neurophysiologist

Dr Granot provided report dated 24 September 2018 [sic 2019] in response to a letter from the appellant’s legal representatives dated 8 May 2019.[17] Dr Granot recorded the history of the work-related injury in 2012 resulting in a fracture of a joint, noting that it was unclear in which joint the fracture occurred. Dr Granot further noted the appellant’s complaint that she thereafter suffered from occasional elbow locking when load bearing, which settled when she took the load off, and that the appellant also noticed rare hand numbness. Dr Granot reported the history of the incident in March 2018, in which the appellant felt a snap and experienced increasing and constant pain down the forearm, which became localised to the medial elbow, radiating proximally to the shoulder. Dr Granot described his examination of the appellant and gave details of the extensive investigations that had been conducted.
[17] ARD, pp 21–22.
Dr Granot considered that, on the basis of the numerous investigations, nerve conduction studies and a repeat perineural injection, the appellant was most likely suffering from CRPS. He remarked that the appellant’s symptoms and the MRI scan were suggestive of mild underlying ulnar neuropathy, but that diagnosis was not supported by the neurophysiology. Dr Granot said that the original injury caused some trauma to the ulnar nerve, which was evident from persisting medial elbow pain and intermittent hand numbness from the time of the injury until the incident in 2018. Dr Granot was of the view that the ulnar nerve symptoms were exacerbated in the 2018 injury, which worsened her symptoms and caused the appellant’s current presentation with CRPS. Dr Granot described the link between the work injury and the appellant’s CRPS as complicated but considered that the work-related injury was partly responsible for the appellant’s condition because it pre-disposed her to the further injury.
Dr Granot also reported to Dr Gunning on 24 September 2018 [sic 2019],[18] 30 November 2018,[19] 29 March 2019[20] and 2 August 2019.[21] Those reports add nothing further to the evidence, other than that:
(a)    Dr Granot mentioned in the report dated 30 November 2018 that Professor Marcus Stoodley, neurosurgeon, did not find any ulnar issues and raised the question of CRPS;
(b)    in his report dated 2 August 2019, Dr Granot reported that an injection of local anaesthetic around the elbow did not offer any improvement to the distal radiating pain, suggesting that there was no definite nerve root compression, and
(c)    in the report dated 2 August 2019, Dr Granot did not refer at all to CRPS and diagnosed the appellant as suffering from Brachialgia.
[18] ARD, pp 44–45.
[19] ARD, pp 48–49.
[20] ARD, pp 50–51.
[21] ARD, pp 55–56.

Dr Benjamin Teo, pain management specialist

Dr Granot referred the appellant to the Prince of Wales Hospital Pain Management Clinic, where she was under the care of Dr Teo. Dr Teo reported to Dr Granot on 29 April 2019.[22] Dr Teo described the appellant’s symptoms as severe and constant right upper limb and neck pain. Dr Teo recorded the history of injury in 2012, which he noted involved a right elbow nondisplaced fracture with elbow haemarthrosis which was managed in a sling and immobilised for one week, with a return to work after three weeks. Dr Teo said that there was then near complete resolution of the appellant’s pain. Dr Teo noted that in March 2018, the appellant was lifting her daughter when she suffered an onset of right upper limb numbness in an ulnar distribution, which “gradually progressed to circumferential right upper limb pain and sensitivity, and painful cold sensations.”[23] Dr Teo reported that right ulnar nerve blocks provided no relief. Dr Teo reviewed the investigations and detailed the appellant’s treatment regime. Dr Teo said that he presumed that the appellant’s diagnosis was still ulnar neuropathic pain and it was likely that CRPS would evolve with time, although she did not fit the formal diagnostic criteria at the time of writing the report.
[22] ARD, pp 52–54.
[23] ARD, p 52.

Dr Dudley O’Sullivan, neurologist

Dr O’Sullivan was qualified by the respondent to examine and provide an opinion in respect of the appellant’s claim for compensation. He provided a report dated 23 August 2019.[24]
[24] ARD, pp 175–180.
Dr O’Sullivan reviewed the material available from the Prince of Wales Hospital and the Fracture Clinic, noting that it was initially thought that there was no evidence of a fracture, but Dr Harper from the fracture clinic reviewed the x-rays and diagnosed an undisplaced right radial head fracture. Dr O’Sullivan recorded an extensive history of the appellant’s return to work and subsequent events which interfered with the appellant’s ability to work. Dr O’Sullivan noted that, in about December 2013, when the appellant had returned to work, she noticed occasional niggling pain in her right elbow, which did not interfere with her ability to perform her normal work.
Dr O’Sullivan further noted that the appellant ceased work to have her first baby (who was born in June 2014) and thereafter, remained at home to look after that child and then her second child. Dr O’Sullivan took the history that, during this period, the appellant experienced niggling pain in her right elbow but was more concerned about caring for her children.
Dr O’Sullivan recorded that in March 2018, the appellant was lifting her child into a low chair when she felt her right elbow lock, heard a cracking sound in her right elbow and experienced quite severe pain up the arm to the shoulder and numbness down the right side, extending into the ulnar fingers. Dr O’Sullivan said that the appellant underwent x-rays of the right elbow which were normal, but an ultrasound showed a thickened and hypoechoic ulnar nerve. Dr O’Sullivan noted that there were similar changes seen on an MRI scan.

Dr O’Sullivan reviewed the treatment provided by both Dr Presgrave and Dr Granot, noting that both doctors observed that the nerve conduction studies were normal with no evidence of a right ulnar nerve lesion. Dr O’Sullivan noted that a further steroid injection into the right ulnar nerve performed in March 2019 produced only temporary relief. Dr O’Sullivan took a history of the following symptoms:
(a)    persistent numbness in the medial forearm to the right hand;
(b)    pain radiating from the right elbow to the neck;
(c)    twitching of the medial muscles adjacent to the right elbow;
(d)    numbness in the right fifth finger, and coldness in the right fourth and fifth fingers as well as a coldness in the right upper arm;
(e)    a feeling of sunburn in the right side of the neck, as well as niggling pain into the right posterior shoulder region, and
(f)    a feeling of heaviness and tightness of the entire right arm.

Dr O’Sullivan conducted an examination of the appellant and reviewed the documentation. Dr O’Sullivan disagreed with Dr Granot’s opinion that the appellant suffered from CRPS. He said that the appellant had a mild right ulnar nerve neuropathy, which was of unknown cause in view of there being no evidence of conduction blocks or a compressive lesion in the elbow.
Dr O’Sullivan diagnosed a mild right ulnar nerve neuropathy. Dr O’Sullivan was of the view that the appellant had recovered fully from the work-related injury in 2012, that the incident in March 2018 triggered the ulnar nerve neuropathy, and that there was no connection between the two injuries. Dr O’Sullivan was of the opinion that, in his view, there was no evidence that the appellant had developed CRPS. Dr O’Sullivan explained that there was no relationship between the incident in March 2018 and the work-related injury as the work-related injury only involved an undisplaced fracture of the right radial head, which was the opposite side of the elbow to where the ulnar nerve passes. He concluded that the appellant would not have injured her right ulnar nerve in the injury in 2012.

The investigations

The x-ray of the right elbow taken in 2012, which was initially considered to disclose no fracture of the elbow, was not in evidence. It is not disputed, however, that the appellant suffered an undisplaced fracture of the right radial head, as recorded in the clinical notes of the Prince of Wales Fracture Clinic on 6 December 2012.[25]
[25] ARD, p 35.
An x-ray of the right elbow was performed on 8 March 2018 which disclosed normal bony alignment with no fractures or dislocations.[26]
[26] ARD, p 62.
The following further investigations were conducted, and the reports of those investigations were in evidence:
(a)    an ultrasound of the right elbow dated 9 March 2018, in which the only abnormality recorded was a small, non-specific joint effusion adjacent to the olecranon;[27]
(b)    a CT scan of the cervical spine dated 7 April 2018 (referring to a history of pain and tingling in the right arm), which showed no significant pathology;[28]
(c)    nerve conduction studies undertaken on 22 May 2018, which were suggestive of mild right ulnar neuropathy (discussed by Dr Presgrave in his reports);[29]

(d) an MRI of the right elbow on 6 June 2018, which found mild common extensor tendinosis, and significant increased signal in the ulnar nerve at the cubital tunnel extending proximally and distally. No compressive lesion of the ulnar nerve was identified,[30] and
(e) an ultrasound of the right upper arm on 13 September 2018, which showed the ulnar nerve as being of normal size and appearance. Dr Simon Dimmick, the radiologist who undertook the ultrasound, reported that the appellant’s symptoms were reproduced with pressure over the ulnar nerve 9 cm proximal to the elbow, although at that level the ulnar nerve was normal in appearance. The ulnar nerve in the cubital tunnel was found to be thickened and hypoechoic, which correlated with the site of the abnormality seen on the MRI scan. No other abnormality was seen.[31]

[27] ARD, p 63.

[28] ARD, pp 64–65.

[29] ARD, pp 68–69.

[30] ARD, p 70.

[31] ARD, p 75.

Right ulnar ultrasound guided injections were also conducted on 15 June 2018 into the right common extensor origin and into the ulnar nerve at the cubital tunnel on 21 June 2018.[32]
[32] ARD, pp 72–73.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator recorded details of the appellant’s claim for weekly payments of compensation and treatment expenses, noting that the issues before her were:
(a) whether the appellant’s symptoms which developed from 1 March 2018 were causally related to the appellant’s injury in 2012, and
(b) the degree of the appellant’s incapacity.
The Senior Arbitrator identified and summarised the statement evidence and the medical evidence. The Senior Arbitrator recorded in detail the symptoms noted and observations made by each of the medical experts, as well as the treatment offered by the various medical practitioners. The Senior Arbitrator observed that:
(a)    Dr Gunning’s view that the notes from the Prince of Wales Fracture Clinic in 2012 disclosed a displaced fracture of the right radial head was incorrect, as the note recorded an undisplaced fracture;
(b)    Dr Gunning did not express an opinion on causation as he was awaiting specialist review;
(c)    in his referral to Dr Presgrave, Dr Gunning did not refer to the injury in March 2018;
(d)    Dr Presgrave’s first report dated 22 May 2012 was not before the Commission so that there was no evidence before the Commission of the history recorded by Dr Presgrave;
(e)    while Dr Presgrave considered that the original fracture might have set off musculoskeletal problems, he did not explain what those problems were and how they occurred;
(f)    although Dr Granot referred to Prof Stoodley’s inability to find any ulnar issues and suggested a possible CRPS, no report was before the Commission from Prof Stoodley;
(g)    Dr Granot did not mention in his report the appellant’s initial feeling was that her problems were attributable to lifting and holding her children when they were asleep;
(h)    Dr Granot considered the link between the appellant’s current symptoms and the original injury was complicated, and
(i)    Dr O’Sullivan indicated that the 2012 injury involved an undisplaced fracture of the right radial head, which he said was the opposite side of the elbow to where the ulnar nerve passes.
The Senior Arbitrator remarked that, because of those matters, determining the issue of causation was not straightforward. The Senior Arbitrator considered that the medical experts needed to have an understanding of the precise nature of the injury in 2012 in order to provide assistance to her in her determination of the issue of causation.
The Senior Arbitrator noted that Dr Granot referred to the 2012 incident as resulting in a diagnosis of a fracture involving the joint, but he was unsure which joint. The Senior Arbitrator referred to Dr O’Sullivan’s awareness of the undisplaced right radial fracture, and his conclusion that, as it was on the opposite side to the passage of the ulnar nerve, the appellant would not have injured her ulnar nerve in 2012. The Senior Arbitrator remarked that there was no medical opinion commenting on this conclusion reached by Dr O’Sullivan.
The Senior Arbitrator referred to the medical observations that failed to identify ulnar symptoms and raised issues of CRPS, and observed that, given the diagnosis of the appellant’s symptoms proved difficult, the failure to have a report from Prof Stoodley was not helpful. The Senior Arbitrator said that it could not be gleaned from Dr Granot’s report of what Prof Stoodley said, whether Prof Stoodley believed that there was a causal link between the symptoms of CRPS and the 2012 injury.
The Senior Arbitrator noted that in Dr Granot’s first report, he said that, because of the symptoms of intermittent hand numbness and persisting medial pain between the 2012 injury and 2018, the original injury caused trauma to the ulnar nerve. The Senior Arbitrator further noted that Dr Granot then opined that those symptoms were exacerbated by the 2018 incident and caused the CRPS. The Senior Arbitrator observed, however, that in Dr Granot’s first report, there was no mention of the appellant experiencing medial elbow pain from 2012. The Senior Arbitrator observed that the Pain Management Clinic recorded that there had been a near complete resolution of the 2012 symptoms and that that history, together with the history recorded by Dr Granot following the first consultation, was markedly inconsistent with the appellant’s statement. The Senior Arbitrator concluded, therefore, that she could put no weight on the appellant’s evidence that her doctors had told her that her 2018 injury would not have happened but for the 2012 injury, observing that no doctor had expressed that opinion in their reports in evidence.
The Senior Arbitrator referred to the appellant’s email to Mr Rabbitt on 20 July 2018, in which the appellant described her symptoms flowing from the 2012 injury as “little niggles,” and, after the incident in March 2018, as pain and numbness. The Senior Arbitrator observed that the history the appellant provided to Dr O’Sullivan was consistent with that evidence.
The Senior Arbitrator again referred to the documents produced from the Pain Management Clinic, which recorded that the 2012 injury was a non-displaced fracture, but did not nominate the precise site of the fracture. The Senior Arbitrator also noted that Dr Teo did not offer an opinion on the link between the 2018 symptoms and the 2012 injury.
The Senior Arbitrator concluded that she preferred the opinion of Dr O’Sullivan to that of Dr Granot. The Senior Arbitrator reasoned that she accepted the opinion of Dr O’Sullivan because he was the only medical expert who had actually considered the causal connection in any detail. The Senior Arbitrator explained that Dr O’Sullivan had correctly described the nature of the 2012 fracture, and carefully considered the nature and location of the fracture and that it was undisplaced.
The Senior Arbitrator advised that she had drawn the attention of both parties to the entry in Dr Gunning’s clinical notes dated 24 February 2016, in which Dr Gunning requested an ultrasound of a lump in the right elbow. Further, on 4 November 2016, Dr Gunning had referred the appellant for an x-ray to investigate intermittent pain in the right wrist and base of the thumb, which had been present for two months. The Senior Arbitrator noted that there were no subsequent relevant entries until the entry on 6 March 2018 and observed that neither Dr Gunning nor the appellant addressed that history, and nor did any other doctor. Further, Dr Gunning’s notes were very brief and provided no insight into the relevance of that history. The Senior Arbitrator concluded that she could not make any finding as to whether that history was, or was not, of assistance.
The Senior Arbitrator quoted from the judgment of Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates,[33] in which his Honour observed that causation is not always direct or immediate, that notions of a proximate cause are not relevant and that mere proof that certain events occurred which pre-disposed a worker to injury will not, of itself, be sufficient to establish that incapacity or death results from the injury. Further, whether a death or incapacity results from an injury is a question of fact.
[33] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The Senior Arbitrator concluded that, applying the principles in Kooragang, and following a consideration of all of the evidence before her, she was not satisfied that it had been established on the balance of probabilities that there was a causal connection between the symptoms from March 2018 and the work injury on 22 May 2012. The Senior Arbitrator pointed out that the appellant bore the onus of proof, and an expert had not been qualified to provide an opinion on causation on her behalf. The Senior Arbitrator remarked that she had carefully considered the medical evidence of the treating doctors and found that their opinions did not provide the required causal connection. The Senior Arbitrator referred to the Court of Appeal authority of Nguyen v Cosmopolitan Homes (NSW) Pty Ltd,[34] in which McDougall J observed that the decision maker must feel an actual persuasion of the existence of a fact.
[34] [2008] NSWCA 246.
The Senior Arbitrator found that, on the basis of the state of the evidence and the issues raised about the evidence, she was not satisfied that the appellant had discharged her onus of proving that, on the balance of probabilities, the appellant’s symptoms from March 2018 were causally related to the injury on 22 May 2012.
The Certificate of Determination issued on 7 April 2020 records:
“The Commission determines:
1. Award for the respondent.”

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal, alleging that the Senior Arbitrator erred as follows:
(a)    Ground One: error in fact by failing to find a causal link between the appellant’s injury sustained on 1 March 2018 and the accepted work injury on 22 May 2012;
(b)    Ground Two: mixed error of fact and law in failing to provide any or any adequate reasons for preferring the medico-legal opinion of Dr O’Sullivan over the numerous opinions expressed by the appellant’s treating doctors;
(c)    Ground Three: error of law by giving any or undue weight to the opinion of Dr O’Sullivan, and
(d)    Ground Four: error of fact by drawing an adverse inference against the appellant in respect of her perceived failure to qualify a medical opinion to counter that of Dr O’Sullivan, which led to an error of law by failing to properly exercise her discretion.

SUBMISSIONS

Ground One: error in fact by failing to find a causal link between the appellant’s injury sustained on 1 March 2018 and the accepted work injury on 22 May 2012

The appellant’s submissions

The appellant submits that, following the injury in 2012, she returned to work despite ongoing symptoms of pain and “locking” of the right elbow. The appellant submits that because of persisting symptoms, she consulted her general practitioner, Dr Gunning, on 24 February 2016 with right elbow issues, and on 4 November 2016 with pain in the wrist and thumb.
The appellant submits that, after the incident in March 2018, she was referred to Dr Presgrave, who was of the opinion that “the original elbow fracture might have set off musculoskeletal issues.” The appellant says that this diagnosis was subsequently confirmed by Dr Granot in his report dated 24 September 2018 [sic 2019], on the basis of the available investigations, including nerve conduction studies and repeat ulnar investigations.
The appellant further submits that, in that report, Dr Granot opined that:
“The original injury caused some trauma to the ulnar nerve, as evidenced by symptoms of intermittent hand numbness and persisting medial elbow pain between the time of the injury and 2018. This was then exacerbated during her injury of March 2018, which then worsened symptoms causing her current presentation with CRPS.”[35]
[35] Dr Granot’s report dated 24 September 2018 [sic, 2019], ARD, p 22.
The appellant also refers to Dr Granot’s report dated 30 November 2018, in which Dr Granot reported that, at that stage, he would treat the appellant on the basis of a provisional diagnosis of CRPS. The appellant says that in the same report, Dr Granot had referred to the opinion of Prof Stoodley, who had raised the question of a diagnosis of CRPS.
The appellant cites the Senior Arbitrator’s reasons where the Senior Arbitrator considered that the absence of an opinion from Prof Stoodley as to a causal link between the 2012 injury and the development of CRPS was not helpful. The appellant submits that the absence of such an opinion was insignificant. The appellant explains that, from a logical perspective, a report from Prof Stoodley would express the same view as Dr Granot. That is, that the diagnosis of CRPS was being considered. The appellant says that Dr Granot’s discussion with Prof Stoodley did not cause Dr Granot to change his diagnosis and in fact supported it.
The appellant submits that, in any event, the Senior Arbitrator noted that on 10 December 2018, Dr Gunning recorded that the appellant had been diagnosed with CRPS. Further, Dr Gunning attributed the CRPS to the injury in 2012 in a certificate of capacity dated 10 December 2018.[36]
[36] ARD, p 89.
The appellant points to the Senior Arbitrator’s reasons in which she observed that Dr Granot did not express a view about the relationship between CRPS and the 2012 injury and submits that that observation was inconsistent with the opinion cited at [59] above.

The respondent’s submissions

The respondent submits that the principles in Kooragang provided the proper basis for determining the issue of causation and what the appellant was required to do was to show that the injury in 2012 materially contributed to the occurrence of the condition that arose following the new incident in 2018.
The respondent points out that the Senior Arbitrator reminded the appellant that she bore the onus of proving the causal connection. The respondent says that the Senior Arbitrator stated that she had carefully considered the medical evidence. She then concluded that the evidence from the appellant’s treating doctors did not provide the necessary reasoned opinion in relation to the causation issue in order to discharge the onus.
Again, referring to the principles set out in Kooragang, the respondent contends that the chain of causation was so attenuated that the causal chain had been snapped. The respondent submits that an independent and separate cause was suggested by Dr O’Sullivan, who arrived at his opinion, in a common sense way, that the appellant had recovered form her work injury and the 2018 symptoms were caused by her activities on 1 March 2018.
The respondent submits that the appellant has failed to identify any error of fact or law. The respondent submits that nothing was overlooked, no expert in the appellant’s case forged a sufficient link in the chain of causation and no finding of fact was made by the Senior Arbitrator that can be displaced. The respondent maintains that there is no expert evidence that reaches a sufficiently reasoned level of persuasion which could satisfy the Senior Arbitrator. The respondent submits that the decision cannot be considered to be wrong.

Grounds Two and Three:

(a) mixed error of fact and law in failing to provide any or any adequate reasons for preferring the medico-legal opinion of Dr O’Sullivan over the numerous opinions expressed by the appellant’s treating doctors (Ground Two), and
(b) error of law by giving any or undue weight to the opinion of Dr O’Sullivan (Ground Three)

The appellant’s submissions

The appellant observes that the Senior Arbitrator determined the matter on the basis that she preferred the opinion of Dr O’Sullivan, the respondent’s qualified independent medical examiner, over the opinions of and diagnoses made by the totality of the appellant’s medical experts. The appellant refers to the Senior Arbitrator’s observations that the report of Dr O’Sullivan had been served on the appellant before the proceedings in the Commission were commenced, so that the appellant had the opportunity to consider that opinion. The appellant submits that, as a specialist tribunal, the Commission is entitled to take note of the “aetiology of sickness and accident,”[37] in this case the CRPS. The appellant (without reference to the source of the information) refers to the chronicity of such a condition, the cause of such a condition, and the symptoms that are manifested by the condition.
[37] Appellant’s submissions, [13].
The appellant refers to the opinion expressed by Dr Teo in April 2019 that CRPS was likely to evolve with time. The appellant further refers to the Senior Arbitrator’s observation that Dr Teo did not express a view in relation to the causal connection between the injury and the CRPS but submits that Dr Teo was concerned about pain management and not providing a medico-legal opinion. The appellant says that Dr Teo’s support for a diagnosis of CRPS lent favour to the diagnosis provided by Dr Granot.
The appellant contends that the report of Dr O’Sullivan is “devoid of reasoned analysis”.[38] The appellant says that Dr O’Sullivan suggested the diagnosis of mild right ulnar nerve neuropathy but did not offer a view as to its cause. The appellant says that Dr O’Sullivan concluded that he could find no evidence of CRPS, without discussing the causes or the symptomology of that condition. The appellant submits that Dr O’Sullivan’s opinion should have involved a discussion of the appellant’s history and the consultations with her medical advisers, and Dr O’Sullivan should have included an explanation as to why his opinion should be preferred over those of Dr Gunning, Dr Presgrave and Dr Granot, and in particular, Dr Teo.
[38] Appellant’s submissions, [16].

The appellant submits that the lack of detail renders Dr O’Sullivan’s opinion of little weight. The appellant asserts that, for the report to be “proper” and “comprehensive,” it would involve an understanding of the opposing party’s argument and have given properly reasoned alternatives to those matters the expert asserted to be incorrect. The appellant relies on Hancock v East Coast Timber Products Pty Ltd[39] as authority for that proposition.
[39] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock).
The appellant says that, unlike Dr Granot, Dr O’Sullivan made no mention of the investigations listed in Dr Granot’s report dated 24 September 2018 [sic 2019] but maintained there was no CRPS. The appellant adds that Dr O’Sullivan failed to consider the significance of the MRI finding that the right elbow showed significant increased signal in the ulnar nerve.
The appellant refers to Dr O’Sullivan’s opinion that there was no evidence of conduction blocks or a compressive lesion and says that, contrary to Dr O’Sullivan’s opinion, Dr Granot reported ulnar nerve thickening and that the ulnar nerve was hypoechoic. The appellant submits that the same observations were made by Dr Teo and Dr Simon Dimmick, radiologist (who reported on the right upper arm ultrasound dated 12 September 2018).
The appellant refers to the conclusion reached by Dr O’Sullivan that the appellant has a mild ulnar nerve neuropathy of unknown cause. The appellant submits that, in the context of Dr O’Sullivan being unaware of the cause of the ulnar neuropathy, it was disingenuous for Dr O’Sullivan to then conclude that the events of March 2018 were unrelated to the injury in 2012. The appellant relies on Paric v John Holland (Constructions) Pty Ltd[40] as authority to say that “[i]t is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence.”[41]
[40] [1985] HCA 58; 62 ALR 85; 59 ALJR 844 (Paric).
[41] Paric, [9].
The appellant also refers to rule 15.2 of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles—
(1)     evidence should be logical and probative,
(2)     evidence should be relevant to the facts in issue and the issues in dispute,
(3)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4)     unqualified opinions are unacceptable.”
The appellant cites Beazley JA’s (as her Honour then was) observations in Hancock that:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence.”[42]
[42] Hancock, [82].
The appellant also refers to the decision of Keating P in Westpac Banking Corporation v Chauhan,[43] in which Keating P quoted from Beazley JA’s observations in Hancock that, for expert evidence to be admissible, it must be based upon the facts set out in the report and the opinion must be arrived at by the process of reasoning in the report.
[43] [2019] NSWWCCPD 63.
In conclusion, the appellant submits that the Senior Arbitrator placed too much weight on the report of Dr O’Sullivan and insufficient weight on, and importance to, the treating practitioner’s opinions.

The respondent’s submissions

In relation to Ground Two of the appeal, the respondent contends that the Senior Arbitrator’s decision ought not to be construed minutely or combed through in search of error, relying on Collector of Customs v Pozzolanic Enterprises Pty Ltd.[44] The respondent describes the Senior Arbitrator’s reasoning as “plain and transparent.”[45] The respondent asserts that the Senior Arbitrator was not persuaded that there was a material contribution from the 2012 injury to the symptoms arising in 2018 because no expert had said so. The respondent contends that it could not be inferred from any of the evidence, or from the evidence as a whole, that such a conclusion was inevitable, or that the preponderance of evidence suggested such a conclusion. The respondent submits that the Senior Arbitrator did not overlook evidence of a material connection but rather she was not satisfied that such a connection had been shown.
[44] [1993] FCA 456; 115 ALR 1.
[45] Respondent’s submissions, [14].
The respondent submits that the Senior Arbitrator looked for a reasoned opinion and was unable to feel an actual persuasion that there had been an accumulation of symptoms over time. The respondent further submits that, where there is a choice between two equally open views, it is not sufficient to establish error merely because the appeal court prefers a different view. The respondent says that in this case, the expert opinions were not finely balanced but the evidence sufficiently explaining the causal connection was simply absent.
The respondent contends that the Senior Arbitrator extensively analysed the material before her, and her reasons were not so inadequate that they could be considered wrong.
In respect of Ground Three, the respondent submits that the notion that the appellant’s symptoms continued for over six years was contrary to the usual norm that an injury most often resolves. The respondent maintains that the appellate tribunal is not entitled to interfere with a decision simply because it prefers a different outcome. The respondent further maintains that there was no preponderance of medical expert evidence to displace the conclusion reached by the Senior Arbitrator.

Ground Four: error of fact by drawing an adverse inference against the appellant in respect of her perceived failure to qualify a medical opinion to counter that of Dr O’Sullivan, which led to an error of law by failing to properly exercise her discretion

The appellant’s submissions

The appellant submits that the Arbitrator’s observation that the report of Dr O’Sullivan had been provided to the appellant, so that the appellant had the opportunity to consider that evidence, suggested that the appellant’s failure to qualify its own forensic medical report allowed for an inference to be drawn against the appellant. The appellant says that the drawing of such an inference is misconceived. The appellant submits that the failure to call material evidence may, but not must, lead to an inference that the uncalled evidence would not assist the party’s case.
The appellant says that, notwithstanding that the report of Dr O’Sullivan was provided to the appellant in September 2019, the respondent’s Reply to the Application to Resolve a Dispute filed by the appellant was not filed until approximately five and a half weeks prior to the arbitration. The appellant contends that she is entitled to wait until the substance of the defence is known before she has to qualify additional expert evidence. The appellant asserts that she should not be required to fund multiple reports at short notice in order to avoid an unfavourable decision.
In conclusion, the appellant submits that the workers compensation legislation is beneficial legislation, at least in the sense that it ensures that “industry” bears the burden. The appellant submits that it is proper that an injured person’s rights do not depend on distinctions that are “too nice.”[46]
[46] Articulate Restoration & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751.

The respondent’s submissions

The respondent contends that there was no adverse inference drawn by the Senior Arbitrator. The respondent says that the Senior Arbitrator simply noted that there was insufficient expert evidence to support the appellant’s case on the issue of causation. The respondent submits that there was no “perceived” failure to adduce probative evidence, but rather the failure was “actual.”

THE RELIEF SOUGHT

The appellant seeks to have the COD revoked and, in its place, an award for weekly payments and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 be made.
The respondent submits that the Senior Arbitrator’s decision should be confirmed, and the appeal dismissed.

CONSIDERATION

Section 352(5) of the 1998 Act provides for an appeal from a decision of an arbitrator as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
It is therefore incumbent upon the appellant to identify an error of the kind required in order to permit appellate intervention and have the error corrected.

Ground One

Ground One of the appeal alleges error of fact on the part of the Senior Arbitrator by failing to find a causal link between the appellant’s injury sustained on 1 March 2018 and the accepted work injury on 22 May 2012. A decision as to causation is a factual decision requiring consideration of the evidence and the inferences that can be drawn from that evidence. Findings of fact will not necessarily be disturbed if they have rational support in the evidence.[47]
[47] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
In determining whether an Arbitrator erred in making a factual finding, the Commission has consistently applied the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[48] Deputy President Roche provided the following summary of those principles in Raulston v Toll Pty Ltd:[49]
“An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that [the] conclusion was wrong’.
Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[50]
[48] (1966) 39 ALJR 505 (Whiteley Muir), at 506.
[49] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[50] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill,[51] Basten JA considered the application of the principles in Whiteley Muir in the context of s 352(5) of the 1998 Act. His Honour observed:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[52]
[51] [2020] NSWCA 54 (Hill).
[52] Hill, [20].
As Sackville AJA observed in Northern NSW Local Health Network v Heggie,[53] where there is no preponderance of view, it is not sufficient that the appellate tribunal prefers a view contrary to that arrived at by an arbitrator.
[53] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
The appellant’s submissions in support of this ground are in part reliant upon her assertion that her right elbow symptoms persisted after the injury in 2012 and up to the 2018 incident. The appellant points to her evidence that the elbow would from time to time “lock,” as well as the entries in Dr Gunning’s clinical notes on 24 February 2016 and 4 November 2016.
The Senior Arbitrator dealt with the entries in the clinical notes. She made the following observation:
“I asked both counsel about the entries in Dr Gunning’s notes on 24 February 2016 where he requested diagnostic imaging in the form of an ultrasound for ‘Lump right elbow’, 4 November 2016 referring to intermittent pain right wrist and base of thumb and an x-ray was requested and on 9 December 2016 a bone scan was requested for pain in the base of the right thumb for two months.[54] There is no other entry then until 6 March 2018. Dr Gunning does not address these 2016 entries in his report nor does Ms Seles. No doctor has referred to the same. These entries may or may not be relevant, but without a copy of the actual radiology results I cannot make a finding one way or the other. Dr Gunning’s notes are so brief they do not provide any insight into the relevance of the same.”[55]
[54] ARD, p 40.
[55] Seles v State Transit Authority of NSW [2020] NSWWCC 110 (reasons), [68].
The Senior Arbitrator also addressed the appellant’s assertion that her symptoms persisted after 2012. The Senior Arbitrator looked to the evidence and noted:
(a)    the history of symptoms prior to 2018 provided to Dr Granot was that of rare hand numbness and occasional locking, with no reference to medial elbow pain;[56]
(b)    the history recorded by Dr Teo was that there was a near complete resolution of the appellant’s symptoms after the 2012 injury;[57]
(c)    there was an absence of evidence of any history provided to Dr Presgrave;[58]
(d)    in the appellant’s email dated 20 July 2018 directed to Mr Rabbit, the appellant described her pre-2018 symptoms as “just little niggles” and her symptoms after the incident as pain and numbness,[59] and
(e)    consistent with the description provided to Mr Rabbitt, the history recorded by Dr O’Sullivan was that, when the appellant returned to work in 2013, she felt occasional niggling pain in her right elbow.[60]
[56] Reasons, [58].
[57] Reasons, [61].
[58] Reasons, [53].
[59] Reasons, [59].
[60] Reasons, [59].
The Senior Arbitrator considered the opinion of Dr Granot that, on the basis of intermittent hand numbness and persisting medial elbow pain between the time of the injury and the event in 2018, there had been some trauma to the ulnar nerve in the original injury. The Senior Arbitrator rejected that opinion because persisting medial pain was not part of the history initially provided to Dr Granot.[61]
[61] Reasons, [58].
The appellant asserts that the absence of a report from Prof Stoodley was of no significance and it was apparent that Prof Stoodley had considered a diagnosis of CRPS. The significance of the absence of a report from Prof Stoodley was made clear by the Senior Arbitrator. The Senior Arbitrator observed that:
“However, no report from Professor Stoodley is before the Commission. Dr Gronot [sic] states in his report dated 30 November 2018 that Professor Stoodley seemingly did not find any ulnar issues either and raised the question of CRPS. Given that the diagnosis of Ms Seles symptoms have proved difficult, the failure to provide a copy of the report from Professor Stoodley is not helpful. It cannot be gleaned from Dr Gronot’s [sic] report whether Professor Stoodley believed there was causal link with the 2012 injury and the development of any CRPS.”[62]
[62] Reasons, [57].
It is apparent that the Senior Arbitrator did not consider the absence of an opinion from Prof Stoodley was critical, she simply remarked that it was not helpful. This was in the context of her evaluation of all of the medical evidence addressing the question of causation, which she was required to determine. The Senior Arbitrator gave reasons for rejecting the opinions of Dr Presgrave and Dr Granot and noted that Dr Teo did not provide an opinion on causation. It was reasonable for the Senior Arbitrator to look for other evidence which might have assisted the appellant’s case and conclude that it was unhelpful that there was an absence of such evidence. It is immaterial that Prof Stoodley may have shared the same diagnosis as Dr Granot where there was an absence of reasoned opinion from Prof Stoodley as to whether there was a causal connection between that diagnosis and the 2012 injury.
The appellant points to the certificate of capacity issued by Dr Gunning dated 10 December 2018, in which Dr Gunning provided a diagnosis of CRPS and nominated the date of injury as 22 May 2012. The document, in which Dr Gunning does not provide any basis upon which he attributes the diagnosis of CRPS to the original injury, is of little, if any, probative value.
The Senior Arbitrator considered all of the medical evidence and formed a preference for the opinion of Dr O’Sullivan over that of Dr Presgrave and Dr Granot, a preference which was open to her for the reasons she provided. It cannot be said that other probabilities so outweigh that chosen by the Senior Arbitrator that it can be said that her conclusion was wrong or that material facts have been overlooked or given too little weight, as required by the principles enunciated in Whiteley Muir.
The appellant also refers to the Senior Arbitrator’s observation that Dr Granot did not express a view about the relationship between the CRPS and the 2012 injury and submits that the observation was inconsistent with the opinion expressed by Dr Granot in his report dated 24 September 2018 [sic, 2019], reproduced at [59] above. In fact, the Senior Arbitrator made the following observations:
“Dr Gronot [sic], in his report to Ms Seles’ solicitors dated 24 September 2018 [sic, 2019], states that the original injury caused some trauma to the ulnar nerve as evidenced by symptoms of intermittent hand numbness and persisting medial elbow pain between the time of the 2012 injury and 2018. He opines that this was then exacerbated during her injury of March 2018, which worsened her symptoms causing her current presentation with CRPS”,[63] and
“In his report dated 29 March 2019 Dr Gronot [sic] says, ‘She likely has CRPS’ and he was waiting a review by the Pain Clinic. He did not express a view about the relationship between any CRPS and the 2012 injury.”[64]
[63] Reasons, [58].
[64] Reasons, [60].
The Senior Arbitrator correctly observed that in one of his reports, Dr Granot did not express a view on causation. That does not lead to a conclusion that the Senior Arbitrator erred when she:
(a)    clearly took into account Dr Granot’s opinion expressed in the report dated 24 September 2018 [sic 2019];
(b)    gave it consideration, and
(c)    concluded that she could afford it little or no weight because it was based on an assumption that there had been persistent medial pain since the 2012 injury, which was not made out on the evidence.
The appellant has failed to establish error on the part of the Senior Arbitrator in respect of her determination that she was not persuaded on the balance of probabilities that there was a causal connection between the symptoms arising from 1 March 2018 and the work-related injury on 22 May 2012.
It follows that Ground One of the appeal fails.

Ground Two

Ground Two of the appeal alleges that the Senior Arbitrator erred in failing to provide any or any adequate reasons for preferring the medico-legal opinion of Dr O’Sullivan over those of the numerous opinions expressed by the appellant’s treating doctors.
An analysis of whether there has been a failure to provide adequate reasons requires a number of considerations to be taken into account. Section 294 of the 1998 Act imposes a statutory obligation on an arbitrator to provide reasons for his or her decision. Rule 15.6 of the Rules also requires an arbitrator to give reasons for his or her decision. It provides:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”

A useful summary of the principles enunciated in various authorities as to the adequacy of reasons was provided by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd,[65] in which her Honour said as follows (citations omitted):
“The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’.
The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another.”[66]
[65] [2009] NSWCA 110 (Pollard).
[66] Pollard, [56]–[59].
It is necessary to take into account the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate.[67] In Roncevich v Repatriation Commission,[68]Kirby J said:
“[t]he focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties.”
[67] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[68] [2005] HCA 40; 222 CLR 115, [64].
There is no failure to give reasons if the steps in the judge’s reasoning were readily apparent.[69]
[69] Musija v Kresa [2010] VSCA 163, [54]–[58].
The appellant’s submissions in respect of this ground of appeal were jointly presented with the submission going to Ground Three, which is a separate ground of appeal. Such an approach is not satisfactory. It is not a matter for a Presidential member to sift through the submissions and identify which submissions relate to which ground of appeal. Practice Direction No 6 requires that submissions should be set out separately and succinctly under each separately identified ground of appeal.
The appellant submits that the Commission is entitled to take note of the aetiology of the condition in question and provides lengthy submissions as to the cause, the symptomology and the chronicity of CRPS. The source of the information put forward by the appellant is not identified and these were not matters raised before the Senior Arbitrator. It is not an error for the Senior Arbitrator to fail to give reasons in relation to submissions that were never put to her.[70] Those submissions are rejected.
[70] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
The remainder of the appellant’s submissions appear to relate to Ground Three of the appeal, in which the appellant alleges the Senior Arbitrator erred by giving any or undue weight to the opinion of Dr O’Sullivan.
In the face of the lack of any submissions pertaining to the alleged failure to give reasons, it is difficult to see how the appellant could establish error of the kind required by s 352(5) of the 1998 Act. Nonetheless, the Senior Arbitrator provided the following reasons for accepting Dr O’Sullivan’s opinion over those of the appellant’s treatment advisors:
(a)    Dr Gunning indicated that he was awaiting the outcome of specialist opinion and erred by reporting that the 2012 injury involved a displaced fracture;
(b)    the referral letter from Dr Gunning to Dr Presgrave did not mention the incident on 1 March 2018 and recorded that the appellant had initially attributed the paraesthesia in the right arm to lifting and holding her children;
(c)    Dr Presgrave was the first specialist to examine the appellant. His first report was not before the Commission and his subsequent reports did not disclose the history provided to him;
(d)    Dr Presgrave’s only comment on causation was that he “suspected” that the right elbow fracture in 2012 “might” have set off musculoskeletal issues, without defining what those issues were or how they occurred;
(e)    it was not apparent whether Dr Presgrave was aware that the 2012 injury was an undisplaced fracture;
(f)    Dr Granot did not mention that the appellant initially attributed her symptoms to lifting and holding children;
(g)    Dr Granot recorded that the 2012 injury involved a fracture involving the joint, without being aware of which joint;
(h)    Dr Granot opined that the 2012 injury involved trauma to the ulnar nerve because of the evidence of intermittent hand numbness and persisting medial pain, when there was no report of the persisting medial pain. In any event, that history was inconsistent with the evidence from Dr Teo of the Pain Management Clinic that, following the 2012 injury, there was a near complete resolution of the appellant’s pain;
(i)    the history provided to Dr Granot and to the Pain Management Clinic was inconsistent with the description of the appellant’s difficulties since 2012 listed in her statement;
(j)    Dr Teo did not provide an opinion as to whether the appellant’s symptoms in 2018 were causally related to the injury in 2012, and
(k)    Dr O’Sullivan was aware of the nature of the undisplaced fracture, observed that the right radial head was on the opposite side to where the ulnar nerve passes, and opined that the right ulnar nerve was not injured in 2012.
All of the facts identified by the Senior Arbitrator were founded in the evidence. The above exposition of the Senior Arbitrator’s reasons for concluding that she preferred the opinion of Dr O’Sullivan discloses that the reasons were readily apparent. The reasons were sufficient to address the issue presented by the appellant’s case and the contest between the parties, as discussed in Pollard, and were sufficient to discharge the Senior Arbitrator’s statutory obligations pursuant to s 294 of the 1998 Act and r 15.6 of the Rules.
Consequently, Ground Two of the appeal fails.

Ground Three

Ground Three of the appeal alleges an error of law by the Senior Arbitrator having given any or undue weight to the opinion of Dr O’Sullivan.
It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[71]
[71] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
The appellant submits that the diagnosis of CRPS provided by Dr Granot was supported by the opinion of Dr Teo, who considered that the condition would evolve over time. The appellant does not explain how that submission assists her assertion of error on the part of the Senior Arbitrator.
The appellant contends that Dr O’Sullivan’s opinion does not rest upon a reasoned analysis in that Dr O’Sullivan diagnosed mild right ulnar neuropathy of unknown cause and could find no evidence of CRPS without engaging in a consideration of the cause or symptomology of the condition. The appellant submits that Dr O’Sullivan should have discussed the appellant’s medical and treatment history and explained why his opinion should be preferred over the opinions of the treating doctors.
The issue before the Senior Arbitrator as to the diagnosis of the appellant’s condition and its connection to the 2012 injury was, as observed by both Dr Granot and the Senior Arbitrator, complicated. The appellant’s initial presentation of symptoms was clearly those symptoms related to ulnar neuropathic pain, as illustrated by:
(a)    the nerve conduction studies undertaken on 22 May 2018, which suggested ulnar nerve neuropathy;
(b)    the MRI scan dated 1 June 2018, which disclosed significant increased signal in the ulnar nerve;
(c)    Dr Dimmick, radiologist, reporting the appellant’s symptoms were reproduced by pressure on the ulnar nerve, and
(d)    Dr Presgrave’s view that the appellant’s pain was related to ulnar neuropathy.
Dr Granot was of the view that the 2018 incident exacerbated the appellant’s ulnar nerve symptoms, which developed into CRPS. Contrary to the appellant’s submission, Dr Granot was the only doctor that made that ultimate diagnosis. At its best, the other evidence was limited to Dr Teo’s observation in his report dated 29 April 2019 that foreshadowed that CRPS was likely to develop over time, and Prof Stoodley may have raised the question of the presence of that condition.
Ultimately, however, the Senior Arbitrator did not determine this matter on the basis of whether the appellant did or did not suffer from CRPS. The Senior Arbitrator correctly directed her attention to whether the appellant’s work-related injury materially contributed to the symptoms that developed from March 2018. In doing so, she rejected the chain of causation proposed by Dr Granot because it was based upon there being persisting medial pain since the work-related injury, which fact was not supported by the evidence. There is no error disclosed in the Senior Arbitrator’s reasons for doing so.
The appellant asserts that the Senior Arbitrator should not have accepted the opinion of Dr O’Sullivan because Dr O’Sullivan did not provide a reasoned analysis to support his conclusion. The appellant’s submission cannot be accepted. It is apparent from Dr O’Sullivan’s report that he:
(a)    reviewed the material available from the fracture clinic, noting that the injury in 2012 involved an undisplaced fracture of the right radial head;
(b)    took a history consistent with the early evidence that the appellant thereafter experienced occasional niggling pain;
(c)    recorded the symptoms occurring in the incident on 1 March 2018;
(d)    reviewed the radiological evidence;
(e)    noted the current symptoms complained of;
(f)    examined the appellant and found no evidence of CRPS, and
(g)    formed the view that the appellant suffered from ulnar neuropathy but was unable to proffer a cause because of the absence of conduction blocks or any compressive lesion.
It was open to the Senior Arbitrator to accept the above process of reasoning as sufficient to support the medical opinion arrived at by that medical expert. The Arbitrator’s acceptance of Dr O’Sullivan’s opinion was rational and open to her for the reasons enunciated by her. The appellant has pointed to no proper reason to disturb that finding and Ground Three of the appeal fails.

Ground Four

Ground Four alleges error of fact by drawing an adverse inference against the appellant in respect of her perceived failure to qualify a medical opinion to counter that of Dr O’Sullivan, which led to an error of law by failing to properly exercise her discretion.
The Senior Arbitrator’s conclusion must be considered in the context in which her findings were made. The Senior Arbitrator made the following observations:
“However, being part of [a] specialised tribunal does not mean the determination can be made in the absence of evidence, particularly in a case such as Ms Seles, where even the question of diagnosis has proved difficult. Dr O’Sullivan has expressed an opinion based upon the physiology of the elbow region. There is no other doctor who comments on the position of the ulnar nerve compared to the radial head. I find had Ms Seles wished to challenge that opinion she should have done so by direct medical evidence.”[72]
[72] Reasons, [65].
I do not accept that this passage of reasoning resulted in an adverse inference being drawn against the appellant. It is plain that Dr O’Sullivan’s opinion was not traversed by evidence adduced on the appellant’s behalf. The Senior Arbitrator’s remarks are simply that, in the absence of evidence to contradict Dr O’Sullivan’s reasons and conclusion, it was open to her to accept that evidence. That reasoning involves no error.
It is not apparent from the Senior Arbitrator’s reasons that she drew any adverse inference of the kind described by the appellant and Ground Four of the appeal also fails.
None of the appeal grounds brought by the appellant succeed and, as a consequence, the Senior Arbitrator’s Certificate of Determination is confirmed.

DECISION

The Senior Arbitrator’s Certificate of Determination dated 7 April 2020 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

27 August 2020