Semic v Brighton Australia Pty Limited
[2021] NSWWCCPD 5
•28 January 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Semic v Brighton Australia Pty Limited [2021] NSWWCCPD 5 |
| APPELLANT: | Mirza Semic |
| RESPONDENT: | Brighton Australia Pty Limited |
| INSURER: | AAI Ltd t/as GIO |
| FILE NUMBER: | A1-1963/20 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 3 August 2020 |
| DATE OF APPEAL DECISION: | 28 January 2021 |
| SUBJECT MATTER OF DECISION: | Whether the Arbitrator was correct in finding that a case of consequential injuries allegedly resulting from a back injury which was not in dispute had not been made out specifically by reason of the Arbitrator’s view that the applicant’s evidence was unconvincing |
| PRESIDENTIAL MEMBER: | Acting Deputy President Larry King SC |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Ms E Grotte, counsel | |
| NSW Compensation Lawyers | |
| Respondent: | |
| Mr W Pardy, solicitor | |
| Hicksons Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 3 August 2020 is confirmed. |
INTRODUCTION
The appellant worker in this appeal seeks to overturn a decision of an Arbitrator finding that he had not made out a case of consequential injury to his left shoulder, right shoulder, digestive system and cardiovascular system following a low back injury in the course of his employment with the respondent on 12 April 2016. The occurrence of the back injury was conceded by the respondent and was common ground in the proceedings.
In the Application to Resolve a Dispute, the appellant also pleaded a claim in respect of his lumbar spine. When the proceedings came before the Arbitrator, the parties, after some discussion, confined the issues by agreement to the following:[1]
(a) Was the left shoulder condition consequential upon the admitted back injury of
12 April 2016?(b) Was the right shoulder condition consequential upon the admitted back injury of
12 April 2016?(c) Were the impairments to the digestive system and the cardiovascular system consequential upon the admitted back injury of 12 April 2016?
[1] Semic v Brighton Australia Pty Ltd [2020] NSWWCC 262 (Reasons), [5].
The appellant’s claim failed in respect of all of the alleged consequential injuries, essentially because upon a review of the totality of the evidence, that is, the written witnesses’ statements of the appellant and his wife and medical reports and records for both parties, the Arbitrator was not satisfied of the reliability of the appellant’s statements nor of the adequacy of the evidence generally in important respects. For that fundamental reason the appellant did not discharge his onus of proof.
BACKGROUND
The appellant commenced employment with the respondent as a labourer and plasterer in 2005. As abovementioned there was no dispute that on 12 April 2016 in the course of his employment the appellant injured his lower back. The injury was a lifting injury.
The appellant, in his first written statement, said that at the time of the injury as well as feeling a sharp pain in his lower back, he had pain in his right buttock. That buttock pain persisted and he also got right leg pain which extended to his right foot.[2] It is my impression that the common ground in respect of the back injury extended to there being right buttock and right leg pain.
[2] Appellant’s statement, 22 October 2019, [119], [123] and [133], Application to Resolve a Dispute (ARD) pp 19–20, 25.
It was further common ground in the proceedings that the appellant went off work and resumed his employment on light duties, probably on 21 April 2016. Whilst on light duties and whilst favouring the right side of his low back he was called upon to perform heavy work lifting and carrying steel posts weighing about 50 kilograms. His evidence was that because of his back trouble he went about the work, with which he was familiar, in a different fashion from the way he would have done it before his back injury. He went on to say in respect of a lift of one of the posts:
“… I put most of the weight on my left leg and began to lift the steel post with my left arm in order to favour the right side of my back and right leg. In attempting to lift the steel post in this way and into the vertical position using my left arm, I felt a sharp pain in my left shoulder. I do not believe that I would have injured my left shoulder had I not had bad back pain and right leg nerve pain which caused me to alter the way that I was lifting. I was unable to evenly distribute the weight amongst both legs and both arms in order to do the lift.”[3]
[3] Appellant’s statement, 22 October 2019, [149], ARD, p 28.
As regards the appellant’s digestive and cardiovascular symptoms, he said that in May 2016 he began to experience increasing reflux and heartburn which he attributed to medication he took for pain relief, and that throughout May and June 2016 he learned from his general practitioner that his blood pressure had increased.[4] The evidence revealed that before April 2016 the appellant had suffered from, and been treated for, gastro-intestinal symptoms and high blood pressure. In respect of the former, it is noteworthy, and was clearly regarded as significant by the Arbitrator, that the appellant did not give a history of his pre-existing symptoms to Dr Greenberg, a medico-legal specialist qualified in support of his claim in respect of consequential gastro-intestinal problems by his solicitor.
[4] Appellant’s statement, 22 October 2019, [162]–[163], ARD, pp 30–31.
As regards his right shoulder, the appellant’s evidence was that although he was right handed, by reason of his left shoulder injury he had to favour his left arm and undertake even more activities with his right arm, whereby it became painful. The evidence of the appellant in this regard was not regarded by the Arbitrator as showing any real precision or clarity as to what the added strain was and when the problem came on, beyond its having taken a considerable time.[5]
[5] See in particular Reasons, [132]–[133].
It can be seen that the appellant’s evidence, if regarded as reliable, would have provided a basis upon which the appellant’s claims could have succeeded. It was not regarded as reliable because of other evidence which it will be necessary to discuss below in conjunction with the written submissions of the parties upon this appeal. Both sets of written submissions were of good quality and gave much assistance.
THRESHOLD MATTERS
There is no dispute that the threshold requirements of ss 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.
ON THE PAPERS
The parties are in agreement that this appeal may be dealt with “on the papers”. The appellant’s submissions in para [3] added that if the Presidential member of the Commission to which the appeal was allocated felt oral submissions were necessary, an oral hearing could take place. I have considered the material before the Arbitrator which is of course now before me and I am satisfied that the matter can be dealt with without an oral hearing.
FRESH EVIDENCE
Neither party sought to lead fresh evidence upon the appeal.
ISSUES IN DISPUTE
The issues in this appeal so far as I can see derive from para [7] of the appellant’s submissions. It is there made clear that the appellant challenges both the findings of the Arbitrator and his resultant award which are particularised in paras [144] and [145] of his reasons. They are repeated in the Certificate of Determination to which the appellant’s submissions expressly refer. They are:
“The Commission finds:
1. The [appellant] has failed to satisfy his onus of proof in his claim that the subject injury has resulted in consequential conditions to both shoulders, the digestive system and the cardiovascular system.
2. The [appellant] is accordingly unable to establish that his whole person impairment is over 10%, and his case cannot therefore be referred to an Approved Medical Specialist for assessment.
The Commission orders:
(a)There is an award in favour of the respondent in respect of all claims.”
DISCUSSION OF THE EVIDENCE
Sufficient reference has been made above to the appellant’s evidence in his first statement of 22 October 2019. He made another statement dated 11 February 2020[6] and his wife, Adisa, made one on the same day.[7] The appellant’s second statement was largely confirmatory of his first, and his wife’s corroborates his evidence.
[6] ARD, pp 402–414.
[7] ARD, pp 415–418.
The Arbitrator, in my view, extracted the relevant evidence in the appellant’s two statements in paras [14] and [15] of his reasons, pp 3–4 thereof, and said accurately in para [16], p 4, that the other lengthy passages of the statements to which he was referred and read did not add to the paragraphs he extracted.
Then in paras [17] and [28] of his reasons, pp 4–5, the Arbitrator performed the same exercise in respect of the appellant’s wife’s statement, setting out the material parts of it in relation to the left and right shoulder and arm allegations. However, it should be noted that the appellant’s wife’s corroboration of him extended to the allegations in respect of his digestive system and his blood pressure trouble, which was the nub of the allegation about his cardiovascular system being the subject of injury consequent upon his back injury.
To my mind, given that, understandably, the appellant’s own evidence and that of his wife lent support to his claim, it is important to accept, as the Arbitrator did, that their evidence was being put into statement form years after the relevant events, so that fading memory was possible, and that notwithstanding what the Arbitrator accepted as an attempt to be frank and comprehensive in the evidence, there could be a subconscious desire to advance the claim.
These considerations are plainly forceful common sense considerations. I agree that an analysis of the contemporaneous medical evidence evolving in the records and reports over time therefore requires careful analysis and comparison with the evidentiary statements.
In relation to testing and evaluating the lay evidence against the medical evidence and records, I should record that a well-known line of authority including cases like Mason v Demasi[8] was referred to the Arbitrator who took it into account.[9] As I read his reasons he directed himself in law, consistently with those authorities, that it was to not to be expected that medical records created by busy practitioners would equate to the sort of detail, as to for example how an injury happened, that would be obtained by a legal practitioner preparing a client’s case. But at the same time, again consistently with authority and specifically citing Qannadian vBartter Enterprises Pty Limited,[10] he noted that the authorities simply laid down an essential requirement of caution in considering such records. They certainly do not hold that such records are irrelevant or never to be given any real weight. I think the Arbitrator was clearly correct in what he took from the authorities. For example, it would be an affront to common sense if an applicant for compensation or a plaintiff in a common law personal injury case were to say that he had hurt his back and saw his doctor about that injury on a particular day, and the doctor’s records recorded absolutely no mention of a back injury but specific mention of an injury to some other part of the body, not to take that into account in the decision-making process. But it would be a different thing if the injured person were alleging in his or her case that a back injury occurred in a particular way, and the doctor’s notes recorded a back injury with no mention of how it came about or a skimpy mention of the cause, not involving the sort of detail advanced in litigation.
[8] [2009] NSWCA 227 (Demasi).
[9] See Reasons, [99]–[100].
[10] [2016] NSWWCCPD 50.
The Arbitrator reviewed the evidence comprehensively and accurately, setting out important extracts from the documents at paras [12]–[74], pp 3–12 of his reasons. After recording the submissions to him by counsel for the parties, he returned to an analysis of the evidence at paras [95]–[139], pp 15–20 of his reasons. Again, what there appears is comprehensive and accurate. Accordingly, I shall not lengthen these reasons with repetition of the Arbitrator’s work. I think it is sufficient to say that against a background of a claim in which the appellant carried the onus of proof, in which the test of causation was the subject of addresses which were not seriously conflicting and was accurately stated by the Arbitrator in paras [90]–[92] of his reasons, pp 14–15, and in which it was essential that the appellant establish that the further alleged injuries followed and were the result of his April 2016 back injury, the medical records and reports revealing his condition before and after that injury were of real significance. They were so treated by the Arbitrator. I think it is further beyond serious controversy that if the appellant had injured his left shoulder as alleged he would at least have made complaints of shoulder trouble to Dr Eftekhar after it came on, and that had he done so, at least a brief note would appear in the doctor’s records at some relevant time. The only relevant note on 21 July 2016 is inconsistent with complaints having been made earlier, and Dr Eftekhar did not provide any evidence to corroborate the suggestion that there were language difficulties.
The doctor’s note of 21 July 2016[11] was set out by the Arbitrator in para [31] of his reasons, p 6 (the Arbitrator has incorrectly referred to it as being dated 21 July 2017), and I think it is worth recanting my decision not to duplicate his work and setting it out here, as follows:
“Left shoulder pain stated it is related to work as well
pain started when [the appellant] commenced light duties during lifting steel postwhich he forgot to mention”.
So far as the mechanics of the shoulder injury are concerned, this note can be seen as a classic example of the type of medical recording to which the Demasi line of authority relates. There is no mention of favouring the back and right side and modifying lifting technique because of that, but one would not expect that detail and its absence is of no significance. But in his evidentiary statements, the appellant offered two different versions of reporting his left shoulder pain to Dr Eftekhar, namely that he did so on a number of occasions before 21 July, and the doctor appeared to pay no attention because he was concentrating on the appellant’s back, and also that there may have been language difficulties. The content of the note puts forward a third explanation, namely forgetfulness, which is inconsistent with the others.
[11] ARD, p 145.
As to the appellant’s right shoulder, given his right handedness to my mind the assertion that he had had to use his right arm more than usual to favour his left arm would certainly call for detailed and compelling lay and medical evidence. The Arbitrator in his thorough analysis found no such evidence, and noted that the claim in respect of the right shoulder was supported by very experienced and able counsel for the appellant “but faintly”. That is an entirely understandable approach from counsel upon the evidence.
As to the claim in respect of the appellant’s cardio-vascular system, it is only necessary in my opinion to have regard to paras [136]–[139], p 20 of the Arbitrator’s reasons, in the context of the setting out of the blood pressure readings and comment upon them earlier at paras [120]–[123], pp 18–19, to conclude that the Arbitrator’s determination was correct.
This leaves the evidence in relation to the claim in respect of the digestive system. The Arbitrator, in his analysis of the evidence, dealt with it in one paragraph, para [135], p 20 of his reasons. The starting point was that the appellant had a history of gastro-intestinal problems of a continuing kind requiring treatment with medication before his back injury of 12 April 2016. His claim that he had suffered a consequential gastro-intestinal injury as a result of the back injury was supported by the medico-legal reports of Dr Greenberg. His evidence initially suffered from a serious shortcoming in the history he was given by the appellant when he first examined the appellant on 8 November 2018 and reported the following day. The history he received and recorded on p 2 of his report was of:
“No past history of any previous gastrointestinal problems. No past history of any abdominal operations.”[12]
[12] ARD, p 59.
Until that erroneous history was corrected, Dr Greenberg’s evidence could not be seen as offering any rational support to the appellant’s claim, and in his next report of 13 November 2019, no indication is given of the doctor having been made aware or becoming aware of the previous history. By letter of 4 February 2020, the appellant’s solicitors must have apprised the doctor of the appellant’s full history, because in a third report of 21 February 2020 the doctor set out a question which he described as a “specific enquiry”, and gave his answer as follows:
“Having regard to the differences in symptoms pre-accident when compared to post-accident, is it your opinion that the increase in symptoms are [sic] related to post-accident medication intake and whether that medication intake (which is consequential upon his physical injury) has materially aggravated the pre‑existing condition.
In my opinion, the aggravation and increase in intensity of the upper gastro-intestinal symptoms described by [the appellant] is consistent and known to occur in patients who require long term medications required for pain relief and mood disorder.
I have addressed the explanation why this occurs and refer you to my supplementary report dated 9 November 2018.”[13]
[13] ARD, pp 396–397.
I think it is fair to say that if there were evidence of a worsening in the appellant’s gastro- intestinal symptoms which came on and developed post-12 April 2016, the view expressed by Dr Greenberg in his final report when aware of the earlier history could be seen as providing adequate expert medical opinion in support of the claim. It seems from the question and his answer to it that appear in that report that a relevant increase in symptoms was put to the doctor as representing the correct factual position, and he accepted as much.
The proposition that there was a worsening of the gastro-intestinal symptoms is therefore an assumption taken up by Dr Greenberg which must be seen to be made good by the evidence, and if that satisfactorily appeared upon the evidence, it would be necessary to evaluate Dr Greenberg’s opinion and the competing opinion of Dr Garvey for the respondent, arriving at a judicial preference for or acceptance of one or the other, in order to resolve this claim.
That there was an increase in gastro-intestinal symptoms in association with the intake of medication for his pain was squarely enough the evidence of the appellant in his two written statements, with some corroboration from his wife in her written statement. However, in para [135] of his reasons the Arbitrator said, amongst other things:
“… Whether that pre-existing condition was the same as that which [the appellant] subsequently complained of is accordingly not adequately addressed. Dr Garvey’s opinion was that [the appellant’s] condition was not work related, although he too was unaware of the pre-existing history. I am therefore not persuaded that [the appellant] has satisfied his onus in this regard …”.
THE ARBITRATOR’S REASONS
The Arbitrator’s reasons sufficiently appear above and his ultimate findings on the strength of them are put in para [13] hereof.
SUBMISSIONS ON APPEAL
The appellant
Counsel for the appellant, in written submissions which as abovementioned I found focussed and helpful, advanced four arguments in elaboration of four Grounds of Appeal.
The first Ground of appeal was that the Arbitrator erred in overlooking material facts or giving them too much or too little weight when determining whether the appellant suffered consequential injuries to his left and right shoulder.
As regards the left shoulder, the written submissions acknowledged that there was no recorded reference to pain at that site until 21 July 2016 and that when making his note on that day Dr Eftekhar said that the appellant told him he had forgotten to mention it earlier. Submissions went on to mention the claim form of 26 July 2016, Dr Tomka’s certificate of 28 September 2016, and also Dr Abraszko’s report of 8 September, although it was acknowledged in para [17] of the written submissions that there was no mention of left shoulder pain there.
In para [23] of the appellant’s written submissions it was put that “… there was a contemporaneous note made by Dr Eftekhar, very soon after the incident involving the left shoulder.” That can only be a reference to the note of 21 July 2016, which was certainly contemporaneous as to what was said on that day, but on any view must be seen as a mention of left shoulder pain late rather than very soon. The Arbitrator clearly had reservations about whether a doctor such as Dr Eftekhar would accept that a patient would forget a problem that had continued for some weeks at least, but I do not regard that scepticism as critical to the Arbitrator’s decision.
So far as the submissions regarding Dr Mastroianni are concerned,[14] I think the significant point is that the Arbitrator was not persuaded of any force in the doctor’s view. This was because he was faced with an initial report from the doctor which did not have a history implicating the existing back injury in the subsequent left shoulder injury by reason of the adoption of unusual postures etc, and also with a second report which assumed that that was so in non-specific terms.
[14] Appellant’s submissions, [25]–[26].
The appellant’s argument came down to the proposition that the Arbitrator’s conclusion was not open to him, and that the evidence showed that the contrary conclusion in favour of the appellant was required.
The second Ground of appeal in respect of the appellant’s shoulders was that other probabilities overbore the Arbitrator’s conclusion.
In support of this, the appellant repeated the submissions in respect of Ground 1, and went on that there was no other explanation for the development of the appellant’s right shoulder trouble than favouring his left arm. It was submitted that the evidence of Dr Mastroianni ought to have been accepted, and that the Arbitrator’s view that the use of the appellant’s right hand and arm was only that which would be expected of a right handed man was misconceived upon the evidence.
The third Ground of appeal relied upon by the appellant was that the approach taken by the Arbitrator as to causation was erroneous, and that he applied an incorrect test to whether the appellant suffered consequential conditions in his left shoulder, right shoulder and digestive system and (presumably) also his cardiovascular system.
This argument came down to the submission, in para [37], that the Arbitrator directed himself that the appellant needed to show that he suffered injury to the left shoulder in the way described and that “… the mechanism of injury caused an injury to the left shoulder.” It was put that this was not correct, and that the appellant needed only to show that he developed symptoms in his left shoulder consequent upon the injury to the back. It may be doubted that there is any distinction between these two propositions, but if there is it must be a distinction without a difference. Both parties in oral address to the Arbitrator seemed to accept that the test of causation was whether the alleged consequential injuries resulted from the back injury, and to show that must involve showing how.
The fourth and final Ground of appeal was that the Arbitrator failed to consider the appellant’s case in respect of his digestive system as asserting an aggravation of a pre-existing condition given the view expressed by Dr Greenberg in his third report of 21 February 2020.
This argument proceeded upon the basis that the doctor’s original incomplete history was corrected, and that the Arbitrator did not take account of the evidence of an increase in the appellant’s intake of Nexium, and that the Arbitrator’s apparent reason for not accepting the final view expressed by Dr Greenberg was that he had not corrected the erroneous original history when that had happened.
The respondent
The respondent’s submission in relation to the first Ground of appeal supported the Arbitrator’s decision according to its terms. In this connection in para [4.5] the respondent made what I regard as an inappropriate reference to Devries v Australian National Railways Commission,[15] a decision which is part of a long line of “demeanour” cases applicable only where witnesses give oral evidence and can be observed in the witness box. But that aside, the respondent’s submissions emphasise the fact that there was no mention of left shoulder pain until 21 July 2016 and that that was done according to Dr Eftekhar’s note upon the basis that the appellant was asserting he had had the pain for some time and had forgotten to mention it.
[15] [1993] HCA 78.
In relation to Ground 2, again the respondent supported the Arbitrator’s reasoning according to its terms.
So far as Ground 3 is concerned, the respondent submitted that the relevant law as to causation was understood and applied by the Arbitrator by reference to Kooragang Cement Pty Limited v Bates,[16] and that he did not misapply the test.
[16] (1994) 35 NSWLR 452 (Kooragang).
Finally as to the fourth Ground of appeal upon the Arbitrator’s decision, the respondent made reference to the fact that the appellant had twice given an erroneous history to Dr Greenberg, and that otherwise his decision in relation to the allegation of consequential injury to the digestive system was correct.
CONSIDERATION AND CONCLUSION
What I am about to say should be read in conjunction with comments made above in passing in relation to the evidence, the Arbitrator’s statement and analysis of it, and the submissions of the parties.
In order to overturn the decision of the Arbitrator, it is for the appellant to show that he made relevant error of fact, law or discretion.[17] I will not advert here to the well-known authorities which provide guidance as to the exercise I am undertaking. They were mentioned by both parties in their submissions. It is sufficient to say that the appellant carries the onus of showing error of one or more of those kinds, and it is not sufficient for the decision of the Arbitrator to be disturbed on appeal that I might think that another view was available. It is necessary to show that the Arbitrator was wrong and that the correct view is the other view.
[17] Section 352(5) of the 1998 Act.
No part of the Arbitrator’s decision-making process involves the exercise of a discretion. That may be left out of account.
I would characterise the entirety of the Arbitrator’s decision as involving determinations of fact. True it is that Ground 3 of the Grounds of appeal involves an argument that there was at least to a degree error of law in not applying the correct test of causation, but with all respect to the careful written submissions of the appellant, I do not think that they make that proposition good.
In this connection the test of causation is simply whether the alleged conditions that were said to be consequential upon the accepted back injury “resulted from” the back injury in the accepted Kooragang sense. As I see it, the case was conducted before the Arbitrator on that basis and decided by him on that basis, and in particular I do not think the suggested error advanced in para [37] of the appellant’s submissions exists. The test the Arbitrator applied in my opinion is the one contended for. See also para [39] above.
Accordingly, the appeal stands or falls upon whether the factual decisions of the Arbitrator that each of the heads of claim for consequential injury fails was correct.
I was initially troubled in respect of the Arbitrator’s decisions in respect of the left shoulder and gastro-intestinal symptoms upon my initial consideration of the papers. This was because, first, the back injury immediately extended to right buttock and leg symptoms which could conceivably induce the sufferer to take more strain on the left side of the torso and shoulder. Secondly, there was some evidence, albeit limited and unclear, about increased ingestion of Nexium. But upon further consideration I have come to the conclusion that the Arbitrator cannot be said to have been wrong in finding himself unpersuaded by the appellant’s case in respect of those two conditions.
As to the left shoulder, the delay in mentioning it and the absence of any corroboration from Dr Eftekhar of the circumstances, themselves conflicting, in which the appellant sought to explain the absence of the mention of the condition in the doctor’s notes before 21 July 2016, are to my mind matters which go against the appellant and support the Arbitrator’s decision. Having considered generally the Arbitrator’s disposition of this claim, again I am not convinced that he was wrong.
As to the allegation of consequential injury to the digestive tract, the evidence there to my mind is indeed unsatisfactory and I came to the view that the Arbitrator’s decision was correct as he articulated it.
The remaining allegations in respect of the right shoulder injury and cardiovascular system were, in my view, correctly evaluated and found wanting by the Arbitrator for the reasons he gives.
DECISION
The Arbitrator’s Certificate of Determination dated 3 August 2020 is confirmed.
Larry King SC
ACTING DEPUTY PRESIDENT
28 January 2021
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