Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos - [2014] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos [2014] NSWWCCPD 23
APPELLANT:	Sisters of St Joseph Aged Care Services (NSW)
RESPONDENT:	Olympia Sotiropoulos
INSURER:	Catholic Church Insurance Ltd
FILE NUMBER:	A1-13305/12
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:	24 January 2014
DATE OF APPEAL DECISION:	30 April 2014
SUBJECT MATTER OF DECISION:	Pleadings; nature and conditions of employment; injury; assessment of medical evidence; unsatisfactory submissions on appeal; failure to refer to transcript; unmeritorious appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray Lawyers
Respondent:	P K Simpson & Co
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 24 January 2014 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

In this matter, the worker claimed lump sum compensation in respect of an injury to her cervical spine alleged to have been caused by the nature and conditions of her employment between November 2009 and 28 June 2010. The employer disputed that any injury occurred and, in the alternative, if the worker received an injury, that the employment was a substantial contributing factor to that injury. The Arbitrator found in favour of the worker on both issues.
The employer has challenged the Arbitrator’s findings on injury. The issues raised on appeal concern alleged defective pleadings, the assessment of medical evidence and the failure to address a submission allegedly made at the arbitration. For the reasons set out below, the appeal is unsuccessful.

BACKGROUND

The respondent worker, Olympia Sotiropoulos, is 38 years old. She started work with the appellant employer in August 2007. She was initially employed as a care worker at the appellant’s nursing home at Hunters Hill. After further study, following which she achieved a Certificate IV in nursing, she became a team leader in October 2008. Her duties included administering medication and assisting other care workers in their duties, which included toileting, bathing, feeding and bedding residents.
In November 2009, Ms Sotiropoulos became the roster clerk. However, she continued to work as a team leader on Sundays. In addition, between 6 am and 9 am on Tuesdays and Fridays, she worked as an extra, assisting other care workers with showering and feeding duties. She was also in charge of care for a particular resident who needed special attention. By March 2010, she worked primarily as a roster clerk, except on Sundays when she continued to work as a team leader.
In an undated and unsigned statement, Ms Sotiropoulos said that, approximately six weeks prior to 28 June 2010, she started to experience intermittent neck and shoulder pain. She attributed her symptoms, which she only experienced while sitting at her computer, to the arrangement of her computer and workstation. She said that her computer was positioned on an angle, relative to her seat, due to the cabling not being long enough to position it correctly and due to items being stored under her workstation.
Ms Sotiropoulos added that, one week prior to 28 June 2010, her pain escalated so much that she had two days off work. She found that rubbing creams were no longer as effective as before. She started her shift on Sunday 27 June 2010 by administering medication, which was placed on a trolley, which she moved from resident to resident. She immediately started to feel pain in her neck and shoulder. After completing her first round of administering medication, she decided to go home due to her increasing pain.
In her statement of 27 February 2012, Ms Sotiropoulos said that, by March 2010, she was primarily doing the duties of the roster clerk, but there were many instances where staff would be off sick and she would deputise for them. This required her to engage in “heavy work dealing with residents”. She said that she “would feel pain in [her] neck while sitting at [her] desk as well as when [she] was attending to patients”. She added that her computer was badly positioned and that forced her to strain her neck to see correctly. She experienced pain in her neck when bending under her desk to get things out, (when) looking at the computer and (when) dealing with the residents.
On 28 June 2010, Ms Sotiropoulos saw her general practitioner, Dr Vivian Morian, by which time the pain had extended from her neck into the tips of her left fingers. On Dr Morian’s recommendation, Ms Sotiropoulos attended at Blacktown Hospital. After tests ruled out a heart attack, Ms Sotiropoulos was discharged with a diagnosis of muscular injury and advised to see her doctor for a CT scan.
After one week off, Ms Sotiropoulos worked on 5 and 6 July 2010 and for four hours on 7 and 8 July 2010. Due to excruciating pain, she could not perform her duties and saw Dr Morian, who certified her unfit.
On 17 July 2010, Dr Morian issued the initial WorkCover medical certificate. Under “How the injury occurred”, Dr Morian wrote “neck pain left side after long period of looking at computer and turning head repeatedly and causing pain radiating down left arm causing pins and needles and tempreture [sic] difference”.
On 20 July 2010, Judith Bradley, the appellant’s human resources manager, completed a notice of injury form in which the injury was described as “musculoskeletal injury of neck, radiating down left arm”. Under “describe how the workplace injury happened”, Ms Bradley wrote, “computer work related”.
On 4 August 2010, Ms Sotiropoulos saw Dr Brian Hsu, adult and paediatric spine surgeon. He recorded that Ms Sotiropoulos had been experiencing significant neck and left arm pain for approximately four weeks. She described her job as requiring repetitive neck turning and straining. Over a period, she felt her pain came on over the left side of her neck and mainly in the left shoulder with radiation into her left forearm, with pins and needles and numbness over the thumb, index and middle fingers.
On 31 August 2010, Professor Ehrlich examined Ms Sotiropoulos at the request of the employer’s insurer. In his report of the same date, he said that Ms Sotiropoulos described her occupation as doing office work in roster administration. He said that her symptoms started in early June 2010 when she experienced a kind of tingling sensation at the left trapezius edge just above the left shoulder blade.
Professor Ehrlich concluded that Ms Sotiropoulos had symptoms consistent with a C5/6 disc protrusion (confirmed on MRI scan), which should be regarded as due to the spontaneous appearance of a disc protrusion and there was nothing about the nature of her duties that could be incriminated as having caused her condition.
On 30 September 2010, Ms Sotiropoulos completed a claim form in which she described her injury as having happened as “a result of positioning of the computer and desk, this lead [sic] to akward [sic] repetitive twisting and movement of [her] neck”.
On 15 October 2010, relying on Professor Ehrlich’s report, the insurer issued a s 74 notice disputing, among other things, that Ms Sotiropoulos had suffered a work related injury on or around 28 June 2010 and, in the alternative, if she suffered an injury, disputing that her employment was a substantial contributing factor to the injury.
On 6 December 2010, Ms Sotiropoulos saw Dr New, orthopaedic and spinal surgeon, on referral from Dr Morian. Dr New took a history that in the course of her normal duties as an office worker/carer on 28 June 2010 she developed tingling into her left shoulder and subsequent pain down her left arm. She said “categorically” that prior to that incident she had not had any injuries or suffered from any neck or arm pain. Dr New added:
“In the course of her normal duties she does normal office work with modest lifting, but it is in the care of the residents and the pushing of medication trolleys that she feels she has injured herself.
…
Historically she has injured herself in the course of her normal duties and is currently in a disputed claim with her insurance company. No doubt this will be resolved through the usual channels.
…
The history given to me today appears to be consistent with her clinical presentation and although she has quoted, by her account, ‘that the disc has occurred spontaneously’ it would appear that the disc bulge has occurred whilst treating nursing home patients and in the course of her normal office duties.”
On 28 January 2011, Ms Sotiropoulos saw Dr Randolph Gray, orthopaedic spine surgeon, again on referral from Dr Morian. Dr Gray took a history that Ms Sotiropoulos had been experiencing pain down her left arm since about June 2010. She told Dr Gray that she felt the onset of the pain could be related to her work doing administrative work at a desk and helping as a care worker, which involved pushing medication trolleys. The pain was initially pins and needles and pain in her neck which started to radiate down her left arm. Dr Gray recommended a nerve block and a C5/6 discectomy and fusion.
On 5 April 2011, Dr Giblin, orthopaedic surgeon, examined Ms Sotiropoulos at the request of her solicitors. In his medicolegal report of 7 April 2011, he took a history of a back injury Ms Sotiropoulos suffered while moving a patient in the course of her employment on 16 November 2007 (which forms no part of the present claim). After a few months off, she returned to work, first on light duties, and then full duties. She did not regard herself as being fully cured.
Dr Giblin recorded that Ms Sotiropoulos was given a job commencing in November 2009 to sit at a computer to do the rosters. She sat for prolonged periods with the computer at an offset angle because the cords were too short. It was during the course of these activities that she first noted pain in her left shoulder on 28 June 2010. The pain then radiated up her neck and went down into her left arm and hand. It became quite severe and she sought advice from her family doctor and was sent to Blacktown Hospital.
Based on Ms Sotiropoulos’s history, and his examination, Dr Giblin diagnosed a soft tissue injury to Ms Sotiropoulos’s cervical spine with referred symptoms to her left upper extremity, reasonably causally related to the injury on 28 June 2010 and consistent with the changes noted at C5/6 on the MRI scan.
On 10 August 2011, Ms Sotiropoulos underwent a C5/6 disc excision and fusion. She returned to work on 14 November 2011 and resumed full-time normal duties (office work only) in January 2012.
In his second report, dated 12 March 2012, Dr Giblin said that “[i]n relation to the nature and conditions of her work environment, from November 2009 through to 28^th June 2010, I assess [Ms Sotiropoulos] as having a DRE 4 category injury to her cervical spine” equating to 25 per cent whole person impairment with an additional two per cent for activities of daily living and one per cent for the surgical scar, which gave a total whole person impairment of 28 per cent.
On 4 April 2012, Ms Sotiropoulos’s solicitors served a letter of claim on the appellant and its insurer claiming lump sum compensation as per Dr Giblin’s report of 12 March 2012. The letter referred to an industrial accident in August 2007 and from November 2009 to 28 June 2010.
On 28 September 2012, the insurer disputed liability for the claim on the grounds that Ms Sotiropoulos did not suffer a work related injury “in August 2007 or due to the nature and conditions of [her] employment from November 2009 to 28 June 2010” and that, if she did suffer an injury, her employment was not a substantial contributing factor to such injury.
In an Application to Resolve a Dispute (the Application) registered with the Commission on 29 October 2012, Ms Sotiropoulos claimed lump sum compensation in respect of a 28 per cent whole person impairment alleged to have been due to an injury to her cervical spine and scarring “as a result of the nature and conditions of employment with [the appellant]”. The date of injury was alleged to be “from November 2009 to 28 June 2010”.
On 16 November 2012, the appellant filed a Reply in which the matters in dispute were confirmed “as per dispute notice(s) attached to the Application”, that is, the appellant relied on the issues raised in the earlier s 74 notices. It raised no issue about the pleadings or the particulars of the claim. (It should be noted that neither s 74 notice raised any issue about the adequacy of the particulars of the claim.)
At a teleconference on 19 March 2013, the Arbitrator recorded in a document headed “Teleconference Outcomes” that the issues were as per the s 74 notice, including ss 4 and 9A. She noted that the appellant raised issues in relation to past incidents and alleged inconsistent histories to doctors and in Ms Sotiropoulos’s statement as to the onset of symptoms.
At the arbitration on 29 July 2013, the Arbitrator heard lengthy oral submissions, but neither side called any oral evidence. Counsel for the appellant, Mr Saul, argued that the pleading of “nature and conditions of employment” had no substance and was meaningless. He contended, among other things, that Ms Sotiropoulos’s histories were inconsistent and that the medical histories did not support a conclusion that a disc protrusion can result from the “sorts of duties that [Ms Sotiropoulos] is alleging, that is sitting at the computer in an awkward position” (T19.29) and it was “very hard to know what the allegation is” (T19.32).
In a reserved decision delivered on 24 January 2014, the Arbitrator found that Ms Sotiropoulos suffered injury to her cervical spine, namely, a disc protrusion at the C5/6 level, arising out of or in the course of her employment with the appellant between November 2009 and 28 June 2010.
The Commission issued a Certificate of Determination on 24 January 2014 in the following terms:
“The Commission determines:
Findings
1. The applicant suffered injury to her cervical spine and scarring arising out of or in the course of her employment with the respondent for the purpose of section 4 of the Workers Compensation Act 1987 due to the nature and conditions of her employment from November 2009 to 28 June 2010. The applicant’s employment with the respondent was a substantial contributing factor to that injury for the purposes of section 9A of the Workers Compensation Act 1987.
Orders
1.     The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of permanent impairment in respect of the cervical spine and scarring as a result of injury due to the nature and conditions of her employment from November 2009 to 28 June 2010.
2.     The documents to be sent to the Approved Medical Specialist are the documents accepted into these proceedings, as set out at paragraph 7 of the attached Statement of Reasons. In addition a copy of this Certificate of Determination and Statement of Reasons is to be sent to the Approved Medical Specialist.
3.     The respondent is to pay the applicant’s costs as agreed or assessed.
Certification
1.     Pursuant to Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2011 I certify this matter as complex with 20 per cent increase in the costs otherwise available to both parties.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”
The employer has appealed the Arbitrator’s finding on injury.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that the pleadings in the Application constituted adequate pleadings and in finding that deficient pleadings can be cured by reference to the medical evidence served in support of the claim (pleadings);
(b)     finding that the evidence from Dr Gray of 28 January 2011 was supportive of causation (Dr Gray’s evidence);
(c)     finding that the histories and opinions of Dr New and Dr Giblin were able to be reconciled to support Ms Sotiropoulos’s claim on causation (histories and opinions of Dr New and Dr Giblin);
(d)     failing to address a key submission made by the appellant as to the reliability of Dr New’s history (submission about Dr New’s history), and
(e)     relying on the opinion of Dr New when his history was not a sufficient basis on which to found his opinion on causation (Dr New’s evidence).

PLEADINGS

The Arbitrator’s reasons

The Arbitrator noted Mr Saul’s submission that the pleadings were grossly inadequate and were, in effect, meaningless (Hua v Freedman Electronics Pty Ltd [2011] NSWWCCPD 60 at [68] (Hua)). She added that the thrust of the comments in Hua, to the effect that the expression “nature and conditions of employment” was meaningless, had to be considered in the context of the case. The letter of claim did not take the matter much further and the Arbitrator said that it would have been better if the nature of the duties had been particularised in that letter. However, she did not accept that the inadequacy in the pleadings rendered the claim “totally incomprehensible or defective” ([13]).
The Arbitrator said (at [14]) that Ms Sotiropoulos relied, from the beginning, on a report from Dr Giblin, dated 12 March 2012, in which the doctor took a detailed history of her complaints of neck pain and the circumstances in which they were thought to have arisen. He referred generally to the nature and conditions of Ms Sotiropoulos’s work environment as resulting in her symptoms and her impairment. He also referred to specific work activities, such as repetitive pushing, pulling, lifting and twisting, which caused her symptoms in her left arm and neck.
Importantly, the Arbitrator added (at [15]) that Dr Giblin referred, at the outset, to having seen Ms Sotiropoulos previously and to his previous report, dated 7 April 2011, in which he offered significant detail about Ms Sotiropoulos’s work duties with the appellant. He described Ms Sotiropoulos’s work, as a roster clerk from November 2009, as involving her sitting for prolonged periods with the computer at an offset angle because the cords were too short. It was during those activities that Ms Sotiropoulos first noted pain in her left shoulder on 28 June 2010, which radiated to her neck and left hand.
The Arbitrator (at [16]) agreed with counsel for Ms Sotiropoulos, Mr Carney, that whether the claim was sufficiently particularised had to be considered in light of Dr Giblin’s reports as a whole. It was clear from the insurer’s very detailed s 74 notice that Ms Sotiropoulos’s claim was “understood and considered” ([16]). There was no request for further particularisation of the claim and it was apparent from “early on the [appellant] had a good deal of medical evidence available to it in its consideration of the claim” ([16]). That evidence included medical certificates from Dr Morian, the claim forms, a report from Dr New, a report from Professor Ehrlich and the report from Dr Giblin of 12 March 2012, in which he referred to his previous report.

The Arbitrator also considered (at [17]) the description in the notice of injury form to be acceptable, as a preliminary document, and the claim form also to be sufficient, as an initial claim document.

Submissions

Though counsel appeared for the appellant at the arbitration, its solicitor, Thomas Murray, has prepared the submissions on appeal. Mr Murray submitted that it was an error of law for the Arbitrator to find that the pleadings were adequate and that those deficient pleadings could be “somehow ‘cured’ by an employer having regard to the medical evidence relied upon by an applicant worker”. That was particularly so where the evidence relied upon is conflicting as to the cause of injury.
Mr Murray argued that the Arbitrator’s reasons suggested that the present case was distinguishable from Hua and that was incorrect because nothing in the circumstances of the present case limits the effect of the decision in Hua.
He said that the problem with relying on Dr Giblin’s reports, as the Arbitrator did, was that she described the history in those reports as “not so much wrong as incomplete” ([27]). Furthermore, the Arbitrator relied on the opinions of Drs New and Gray to find in favour of Ms Sotiropoulos, while at the same time conceding that their histories were “slightly different” ([21]) to that of Dr Giblin. This “highlights the error in finding that the appellant could look to the supporting medical evidence to determine the allegation of injury”.
Mr Murray set out the various histories, which highlighted the “potentially significant consequences that would flow if the present finding was maintained”. It would result in situations where an injured worker relied on conflicting medical evidence as to the cause of injury and then refrained from stating in their Application precisely what is said to have caused the injury (by relying on “nature and conditions” of employment) and the employer could potentially be expected to peruse the medical evidence to determine the alleged cause of injury. This could mean a respondent employer being required to prepare “various defences to a claim in light of the possibility of different allegations of injury being made based on varying mechanisms of injury referred to in the medical documentation”, or, as was submitted by Mr Saul at the arbitration, the employer would have to “try and guess it from the histories” (T14.25).
Mr Murray also relied on Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 (Shore) where it was held that it was unacceptable for pleadings to simply state “see attached witness statements”. The Arbitrator’s finding is akin to suggesting that an adequate pleading would be “see attached medical reports”, which clearly cannot be correct.
Mr Murray said that the Arbitrator has fallen into the same error identifiable with the pleadings. At [31], the Arbitrator said, “this is a claim of injury due to the nature and conditions of work over a period of time”. At [36], the Arbitrator found only that the “work duties” performed by Ms Sotiropoulos resulted in injury and, further (at [39]), that the matter is referred to an Approved Medical Specialist (AMS) for assessment for injury “as a result of nature and conditions of employment from November 2009 to 28 June 2010” (emphasis included in the submissions).
For any allegation that an injury under s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) occurred over time, it is required that a worker prove that certain work duties, performed over time, have caused a work injury (that is, the injurious event/s must be identified as one limb of any determination under s 4 (Lyons v Master Builders Association of NSWPty Ltd (2003) 25 NSWCCR 422 (Lyons)). It was therefore necessary for such a finding by the Arbitrator, which has not occurred. The parties have been left to “speculate as to precisely what ‘duties’ or ‘nature and conditions’ the Arbitrator” referred to.
The pleadings were, so Mr Murray argued, so deficient that the appellant was placed in a disadvantageous position by virtue of the failure to properly particularise how the injury is said to have been sustained. Therefore the Arbitrator’s finding that the Application was a sufficient pleading constituted an error of law and should be revoked and an award entered for the appellant. In the alternative, the decision should be revoked and remitted to a different Arbitrator for re-determination, with a direction that the allegation of injury pleaded be amended stating how the injury is said to have been sustained.
Though counsel appeared for Ms Sotiropoulos at the arbitration, her solicitor, Mr Kambas, prepared the submissions in response on appeal. He submitted:
(a)     the Commission is not a court of strict pleadings;
(b)     all the material as to injury and incapacity was before the Arbitrator and the issues traversed by both parties. There was no question of Ms Sotiropoulos having misled the appellant or putting the appellant at any disadvantage in the proceedings, and
(c)     the matter was decided on the totality of the evidence, not on one report, such as Dr Giblin’s report, which, in any event, was supported by Dr Gray’s notes and reports.

Discussion and findings

Mr Murray’s submissions are untenable nonsense.
The Commission is not a court and not expected to function as a court (Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 at [91]). As Mr Murray acknowledged, the Commission is not bound by strict pleadings (Far West Area Health Services v Radford [2003] NSWWCCPD 10). Moreover, it is a tribunal that has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act).
In any event, as Mason CJ and Gaudron J explained in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286–7 (Banque Commerciale) (when dealing with proceedings in a court), the function of pleadings is to state with sufficient clarity the case that must be met and to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her. Given the history of the matter, the pleading in the Application did that in the present case. This is sufficient to dispose of this baseless ground of appeal. However, in view of Mr Murray’s surprising submissions, I make the following additional observations and findings.
The initial letter of claim, dated 4 April 2012, referred to an industrial accident in “August 2007” (which related to the earlier back injury) and from “November 2009 to 28 June 2010”. The insurer responded to this claim with a second s 74 notice that was in substantially the same terms as the first notice. It was this notice, not the letter of claim, that first used the expression “nature and conditions” of employment. The insurer did not seek any further particulars of the cause of the injury. It did not need to; it is patently obvious that it was well aware of the allegations made by Ms Sotiropoulos.
The appellant’s Reply, filed on 16 November 2012, raised no issue about the pleadings or the particulars. The appellant’s solicitor did not seek, at any time, any further particulars as to the cause of injury.
At the teleconference on 19 March 2013, at which Mr Murray represented the appellant and a Mr Carney (spelt Kearney in the Commission’s documents) represented Ms Sotiropoulos, the Arbitrator noted the issues in dispute to be whether Ms Sotiropoulos received an injury and, if so, whether her employment was a substantial contributing factor to that injury. There is no suggestion in the “Teleconference Outcomes” document (or in any other document prior to the arbitration) that Mr Murray raised any issue about the pleadings or the particulars.
In these circumstances, though it was unsatisfactory that the Application alleged that Ms Sotiropoulos’s injury had been caused by the “nature and conditions of employment”, that did not prevent the Arbitrator from determining the claim on its merits. Cases are decided on the evidence tendered, not on the pleadings (per Dawson J in Banque Commerciale at 296–7). That is especially so in the Commission, which has a statutory obligation to act according to the substantial merits of the case.
The appellant’s real complaint (though it was not identified in either s 74 notice) was that some of the medical experts had different histories of Ms Sotiropoulos’s activities at the time she experienced symptoms and that, therefore, her claim that she suffered injury due to the “nature and conditions of employment” with the appellant could not be accepted. Mr Carney took no objection to this issue being argued and the Arbitrator carefully considered it in her decision. I have assumed, though the Arbitrator made no formal orders, that she impliedly gave leave, under s 289A(4) of the 1998 Act, for this previously un-notified matter to be disputed.
If it were seriously contended that the pleadings did not properly clarify the case the appellant had to meet, or did not comply with s 282 of the 1998 Act (which deals with “relevant particulars about a claim”), that issue should have been raised in the s 74 notices. Not only was it not raised in either of the notices, the first reference to the phrase “nature and conditions of employment” was in the second s 74 notice, a document the insurer prepared. In these circumstances, to suggest that the Arbitrator erred in law in finding that the Application was a sufficient pleading is simply ludicrous.
Mr Murray’s reliance on Hua is misplaced. The criticism of the phrase “nature and conditions of employment” in that case appeared under the heading “Other Matters”. It was not suggested, in that case or in any other, that the use of the phrase would invalidate the proceedings. The point made was that if it was alleged that a worker received an injury because of activities over time, such as repetitive lifting, that allegation should be made clear in the Application and in the particulars in support of the initial claim for compensation.
Regrettably, the obiter observations in Hua have gone largely unheeded. However, that does not mean that, in a case where the phrase “nature and conditions of employment” is used, an Arbitrator errs in determining the case on the evidence tendered. In the present matter, the appellant had every opportunity to object to the particulars of the claim, and the pleadings in the Application, but did not do so.
Even at the arbitration, there was no serious suggestion that the appellant did not know the case it had to meet (though Mr Saul did complain about the pleadings) and there was no application for an adjournment to meet Mr Carney’s arguments. Given the history of the matter, such an application would have been bound to fail because, given the documents attached to the Application, the appellant was well aware of the evidence on which Ms Sotiropoulos based her claim and the nature of that claim.
Ms Sotiropoulos alleged that her cervical spine disc prolapse had been caused by her work activities with the appellant between November 2009 and 28 June 2010. Those activities included her work as a team leader and as the roster clerk. How those activities were described in the Application was not, in the circumstances of this case, critical.
The main, but not the only, argument mounted by Mr Saul was that Ms Sotiropoulos’s medical histories were inconsistent and did not support a conclusion that a disc protrusion “can result from the sorts of duties” (T19.29) Ms Sotiropoulos was alleging. That was an argument he was entitled to present, though it had little merit. The Arbitrator considered that argument, and others he presented, and, after considering all the evidence, rejected it. That decision did not turn on the pleadings. Rather, quite properly, it turned on an assessment of the evidence in light of the arguments presented.
The Arbitrator was perfectly correct to state that the relevance of the pleadings had to be considered in the context of the particular case. Though she referred to Dr Giblin’s evidence, she would also have been entitled to consider the history of the matter and the other evidence tendered. She correctly concluded that the inadequacy of the pleadings did not render the claim “totally incomprehensible or defective”. I firmly agree with that conclusion.
It is correct that it is unacceptable for pleadings to state “see attached witness statements” (Shore at [34]). However, Shore added (at [36]), after referring (at [35]) to the principles discussed in Banque Commerciale, which I have noted above:
“36. The issues in dispute are ultimately determined by the way the parties present their respective cases. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15]) ‘pleadings are only a means to an end’ and if, in the running of the case, the parties choose to restrict them, enlarge them, or to disregard them, ‘it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest’.”
The appellant was well aware of the case it had to meet and any suggestion that it was not is completely specious. If it was not aware, it did not seek further particulars. In these circumstances, the appellant cannot be heard to complain that the Arbitrator erred in determining the case on the evidence tendered. It has pointed to no prejudice it suffered by that course being adopted. It is quite clear that it suffered none.
Mr Murray’s submission about the relevance of the medical histories misses the point. Those histories were not critical to the pleadings. All the medical experts (save for Professor Ehrlich) had a history of Ms Sotiropoulos suffering symptoms while performing her usual duties with the appellant. Whether those duties were the duties of a team leader and/or the duties of the roster clerk does not assist the appellant. Both duties were part of Ms Sotiropoulos’s normal employment activities, that is, part of the general activities of her employment (the nature and conditions of her employment) that were said to have caused her injury. The appellant was well aware of the nature of those duties and of the allegation that those duties caused Ms Sotiropoulos’s injury. It disputed that those duties caused the injury, not that the particulars caused any prejudice or confusion.
The suggestion that, facing an allegation of injury caused by the nature and conditions of employment, a respondent employer would be required to prepare “various defences” demonstrates a fundamental lack of understanding of proceedings in the Commission. All evidence is (or should be) attached to the Application and employers and insurers have the right to seek particulars of any claim and to dispute a claim if particulars are inadequate. Neither the employer nor the insurer sought any particulars in this case. More importantly, at no stage prior to the arbitration did the employer or the insurer dispute the adequacy of the particulars provided.
It is fundamentally wrong to suggest, as Mr Murray has, that the pleadings were so deficient that the appellant was placed at a disadvantage. As noted above, the appellant’s defence (as stated in its s 74 notices) was not that the pleadings were defective or deficient, but that Ms Sotiropoulos’s cervical disc protrusion was spontaneous and unrelated to any aspect of her employment. In these circumstances, though it would have been preferable if the pleadings had not used the phrase “nature and conditions of employment”, the use of that phrase was not (in the circumstances of this case) determinative and did not disadvantage the appellant.
Nothing in Lyons assists the appellant. It is correct that the Arbitrator had to determine whether Ms Sotiropoulos’s injury was a personal injury under s 4(a) or a disease injury under s 4(b)(i) or (ii). She did that (at [34]) when she concluded that the nature of the injury in question was best described by Dr New as a disc protrusion (or bulge) at the C5/6 level “which occurred whilst treating nursing home patients and in the course of her normal office duties”.
This finding was essentially repeated (at [37]) where the Arbitrator said that Ms Sotiropoulos suffered injury to her cervical spine by way of a disc protrusion at the C5/6 level arising out of or in the course of her employment with the appellant for the purposes of s 4 of the 1987 Act. There being no evidence that the condition was a disease, the only reasonable conclusion is that the Arbitrator accepted that the injury was a personal injury under s 4(a).
Dealing with the cause of that injury, the Arbitrator concluded (at [36]) that she was satisfied that “the work duties [Ms Sotiropoulos] did with the [appellant] from November 2009 to 28 June 2010 has resulted in the injury and pathology in the neck from which [Ms Sotiropoulos] now suffers”. She accepted that Dr New and Dr Giblin best explained the mechanism of injury.
In other words, the Arbitrator accepted that the injury had been caused by Ms Sotiropoulos’s duties as a team leader and as the roster clerk. This was consistent with her statement (at [39]) that Ms Sotiropoulos suffered a work injury to her cervical spine (and scarring), as claimed. She remitted the matter to an AMS for assessment of the degree of permanent impairment in respect of the cervical spine and scarring as a result of the nature and conditions of employment from November 2009 to 28 June 2010. These findings were open on the evidence and disclosed no error.
It follows that Ms Sotiropoulos established that her work duties caused her cervical spine injury. Mr Murray’s submission that the parties have been left to “speculate as to precisely what ‘duties’ or ‘nature and conditions’ the Arbitrator” referred to is incorrect. It is patently obvious that the Arbitrator accepted that both aspects of Ms Sotiropoulos’s duties had caused the injury. The medical evidence, discussed in detail below, strongly supports that finding.

DR GRAY’S EVIDENCE

The Arbitrator’s reasons

The Arbitrator accepted that Ms Sotiropoulos’s work duties over the relevant period were mixed, albeit that she worked mainly as a roster clerk. The Arbitrator thought it “of significance” ([20]) that Ms Sotiropoulos continued to work as a team leader on Sundays and that she worked as an “extra” throughout the period, something that the appellant did not dispute.
The Arbitrator observed that this “more detailed explanation and history” did not appear to have been given to Dr Giblin or Dr Hsu, but both Dr New and Dr Gray had “this slightly different history” ([21]). She also noted (at [25]) that Dr Gray had a history that Ms Sotiropoulos was administering medications to residents, which he seemed to consider was a regular feature of her work. She said (at [25]) that he:
“picks up all aspects of [Ms Sotiropoulos’s] job when he says [that Ms Sotiropoulos] feels the onset of pain could have been related to her work, which is at a nursing home doing administrative work at a desk and also helping out as a care worker which involved pushing around medication trolleys. He does not dismiss that account as an explanation for what has occurred, although he offers no specific opinion on causation. By way of diagnosis he is clear the applicant presents with quite severe left C6 radiculopathy secondary to a C5/6 left posterolateral soft disc herniation.”
At [26], the Arbitrator said that Dr Hsu did not comment directly on the issue of causation but, like Dr Gray, he did not dismiss Ms Sotiropoulos’s explanation. At [27], the Arbitrator said that Drs New and Gray both had a more complete and comprehensive history (than Dr Giblin). The Arbitrator made no further reference to Dr Gray’s evidence.

Submissions

Mr Murray submitted that the Arbitrator’s statement (reproduced at [76] above) that Dr Gray “does not dismiss that account as an explanation for what occurred” carries the clear implication that she found Dr Gray’s report supportive of Ms Sotiropoulos’s claim on causation and it was not open to her to draw that conclusion from his report.

Mr Murray argued that the absence of any comment on causation by Dr Gray should properly have led to the alternative inference being drawn, namely, that the doctor was not supportive of causation, or the report should have been disregarded. It is clear, so Mr Murray contended, that the Arbitrator placed significant reliance on Dr Gray’s report in reaching her ultimate conclusion. She fell into error in finding that Dr Gray was supportive of Ms Sotiropoulos’s case on causation.
Mr Kambas submitted that Dr Gray’s report could be read the way the Arbitrator read it and, in any event, must be read against the totality of the evidence and not in isolation, as the appellant has sought to do.

Discussion and findings

Mr Murray’s submissions are fundamentally wrong. They are based on the false assumption that the Arbitrator found Dr Gray’s evidence supportive of Ms Sotiropoulos’s claim. She made no such finding. Other than the passages referred to at [76]–[77] above, the Arbitrator’s only other reference to Dr Gray’s evidence was in her summary of the parties’ submissions.
The Arbitrator noted (at [9(w)]) Mr Carney’s submission that Drs Hsu and Gray referred to “the matter and do not dismiss it”. This was a summary of Mr Carney’s submission at T48.6, where he said, dealing with whether employment was a substantial contributing factor to the injury:
“We’d say the work, the contribution of the work is of real, is of real and substance, that’s evidenced by the fact that all the treating doctors referred to it. Some of them may not be as dogmatic as Dr Knew [sic], but we say Dr Hsu and Dr Gray certainly do refer to it and don’t dismiss it at the very least.”
The Arbitrator (accurately) recorded (at [10(j)]) Mr Saul’s submission that neither Dr Gray nor Dr New provided any opinion on causation, which he said was “problematic” (T7.12).
Given the state of the evidence, and the parties’ submissions, it was open to the Arbitrator to conclude, as Mr Carney had submitted, that Dr Gray did not dismiss Ms Sotiropoulos’s account as an explanation for what had occurred. It took the matter no further but merely meant that Dr Gray did not reject the possible connection between the injury and Ms Sotiropoulos’s employment.
It will be recalled that Dr Gray took a history that Ms Sotiropoulos experienced pain down her left arm from about June 2012 and that she felt the onset of the pain could be related to her work doing administrative work at a desk and also helping as a care worker, which involved pushing trolleys. Dr Gray set out this history in his report to Dr Morian. He was clearly not asked to provide an opinion on causation and did not do so.
The Arbitrator’s statement that Dr Gray did not dismiss Ms Sotiropoulos’s account as an explanation for what has occurred was consistent with the evidence. Without more, however, it did not mean that the Arbitrator found Dr Gray’s evidence was supportive of Ms Sotiropoulos’s claim on causation.

HISTORIES AND OPINIONS OF DR NEW AND DR GIBLIN

The Arbitrator’s reasons

As noted above, the Arbitrator said (at [21]) that Dr New had a “slightly different history” to the histories recorded by Dr Giblin and Dr Hsu. She said, at [22] and [23]:
“22.Put briefly, Dr New says [that Ms Sotiropoulos] does normal office work with modest lifting, but it is in the care of the residents and the pushing of medication trolleys that she feels she has injured herself. He does not specifically refer to her sitting at the computer at an awkward angle, but Dr New clearly accepts [Ms Sotiropoulos’s] account of her work duties as including the care of residents and the pushing of medication trolleys. That factual foundation is consistent with [Ms Sotiropoulos’s] statement and my own findings of fact as set out above. On the issue of causation Dr New says the history given to him in November 2010 is consistent with the clinical presentation. He concludes quite definitely that, although the applicant indicated by her account that the disc problem occurred ‘spontaneously’, in his opinion the disc bulge occurred whilst treating nursing home patients and in the course of her normal office duties.
23.I find that Dr New’s reports and opinion lend strong support to [Ms Sotiropoulos’s] claims in respect of injury and causation, and greatly assists my understanding of the mechanism of injury.”
Dealing with the inconsistencies in the medical histories, the Arbitrator said, at [27]:
“27.I do not accept that the histories taken by the doctors are so inconsistent as to make them unreliable. While it would have been better if Dr Giblin had had a more comprehensive history, I do not consider that renders his report of no value. The history he has taken is not so much wrong, as incomplete. It certainly does not suffer from the problems identified by the Court of Appeal in Makita. Despite his more limited history[,] Dr Giblin still considers the neck injury to be work-related, albeit only arising from her administrative duties as a roster clerk which required her to sit for long periods on a daily basis in an awkward position. In my view[,] Dr New and Dr Gray both have a more complete and comprehensive history, and Dr New is very clear in his opinion that the neck injury is work-related. While he emphasises the contribution from her role in caring for residents and pushing the medication trolley, he does not dismiss a causal connection between her normal office duties and the disc bulge. He accepts that both her treating of patients ‘and’ doing her normal office duties have led to the disc bulge.” (The Arbitrator’s reference to Makita was a reference to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita).)
After referring (at [28]) to the shortcomings in Professor Ehrlich’s report, namely, that he failed to explain the medical foundation for his opinion, the Arbitrator said, at [29]:
“29.Dr Ehrlich’s conclusion of a spontaneous disc protrusion is in direct conflict with the opinion of Dr New, who dismisses that suggestion by [Ms Sotiropoulos]. By contrast Dr New’s conclusions are well-explained and represent a detailed and convincing explanation of the mechanism of injury.”
At [30], the Arbitrator referred to Ms Sotiropoulos’s “categorical” denial to Dr New of earlier problems with her neck. She said (at [31]) that while there was some inconsistency in Ms Sotiropoulos’s evidence on these matters (namely, when her symptoms started), she did not consider it of any great consequence. She accepted that Ms Sotiropoulos had experienced “some earlier pain” (earlier than 28 June 2010) in her neck and left arm, but did not consider it bad enough to report to work or seek medical treatment. She accepted that the pain to which Ms Sotiropoulos referred in her statement were all part of the same work-related neck problems which became more severe on and from 28 June 2010.
The Arbitrator concluded, at [36]:
“36.On the balance of the evidence and as indicated in the discussion above, I am satisfied the work duties [Ms Sotiropoulos] did with the [appellant] from November 2009 to 28 June 2010 has resulted in the injury and pathology in the neck from which the applicant now suffers. The mechanism of injury and how those symptoms came about over time are best explained by her treating doctors, especially Dr New, as well as by Dr Giblin. In light of those explanations and opinions[,] I do not accept the opinion of Dr Ehrlich that there is no work-related injury to the neck. The balance of the medical evidence before me supports [Ms Sotiropoulos’s] central claims on injury and causation.”

Submissions

Mr Murray submitted that the Arbitrator erred in finding that the opinions of Dr Giblin and Dr New could be reconciled to support Ms Sotiropoulos’s claim. He said that they could not both be supportive of the claim, as they attributed the injury to different duties. He contended that the Arbitrator’s attempt to reconcile them at [36] of her decision was “indicative of the Arbitrator’s failure to fully grasp the gross inconsistency between the doctor’s [sic] histories as to the mechanism of the alleged injury”.
Referring to the Arbitrator’s finding (at [36]) that the mechanism of injury is “best explained by her treating doctors, especially Dr New, as well as by Dr Giblin”, Mr Murray said that the Arbitrator erred in finding that the histories “somehow complemented each other, when they in fact directly contradicted each other”. The Arbitrator drew the wrong inferences from these histories and reports, which has led to an error in the fact-finding process.
Mr Murray contended that this further supports the first ground of appeal. If Ms Sotiropoulos meant to plead an injury having occurred in the circumstances described by Dr New, that should have been specified, particularly noting the inconsistency between that mechanism and what was recorded in the claim form.
Mr Kambas submitted that it was clear that Dr New referred to “office work”, as did Dr Giblin, as a cause of injury. Just because Dr New also described the pushing of medication trolleys as also causative did not mean that his report did not support Dr Giblin’s report.
Mr Kambas said that, in any event, the pushing of trolleys was a work activity and, if causative of injury, was well known to the appellant as it had Dr New’s notes and reports and would ground Ms Sotiropoulos’s injury as work related if it was the true and only cause of her injury, which it was not.

Discussion and findings

Mr Murray’s submissions are (again) based on a false assumption, namely, that the evidence from Dr Giblin and Dr New is contradictory. Moreover, his submissions have largely ignored Dr New’s evidence, which is summarised at [17] above.
Dr New made three statements touching on causation. First, that Ms Sotiropoulos felt that she had injured herself in the care of residents and the pushing of medication trolleys. This history was consistent with Ms Sotiropoulos’s evidence that she felt pain in her neck and shoulder when moving the medication trolley on Sunday 27 June 2010, a matter to which the Arbitrator referred at [30]. However, this was not the only history relevant to causation.
Second, historically, Ms Sotiropoulos injured herself “in the course of her normal duties”. Her normal duties included the “heavy work dealing with residents”, which included handling the medication trolley, and work at her computer, which required her to sit “awkwardly” and to “strain [her] neck”. All of these factors were part of Ms Sotiropoulos’s duties with the appellant.
Third, consistent with the second point, though Ms Sotiropoulos had “quoted, by her account, ‘that the disc has occurred spontaneously’” it appeared that the (cervical) disc bulge “occurred whilst treating nursing home patients and in the course of her normal office duties” (emphasis added). Thus, Dr New attributed the cervical disc injury to all of Ms Sotiropoulos’s duties with the appellant.
The reference in the preceding paragraph to the disc having “occurred spontaneously” was, most likely, a reference to the opinion of Professor Ehrlich, there being no other evidence to that effect. Dr New did not accept that view and concluded that the cervical disc bulge “occurred” while treating patients and in the course of her normal office duties.
In other words, as the Arbitrator concluded at [27] (quoted at [88] above), Dr New accepted that treating patients and doing her normal office work led to the bulge. This opinion was logical and, based on the history of the onset of symptoms while performing her usual work duties, consistent with commonsense causation having been established. The Arbitrator’s acceptance of it disclosed no error.
Dealing with Dr Giblin’s evidence, the Arbitrator acknowledged (at [19]) that he only had a history of Ms Sotiropoulos working at a computer at an offset angle and (at [27]) that it would have been better if he had had a more comprehensive history. However, she did not accept that the absence of a complete history rendered his report of no value. The Arbitrator said that his history was not so much wrong, as incomplete. Despite his “more limited history”, the Arbitrator correctly observed that Dr Giblin still considered the neck injury to be work-related.
These statements by the Arbitrator were consistent with the evidence and disclosed no error. It is trite law that the facts assumed by an expert do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; [1985] HCA 58; 59 ALJR 844 at 846 (Paric); Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [69]). Dr Giblin’s history satisfied this test and the Arbitrator was entitled to accept it.
The evidence from Dr New did not undermine Dr Giblin’s conclusion and, contrary to Mr Murray’s submission, the opinions from Dr Giblin and Dr New did not have to be “reconciled”. They were not contradictory. They were both supportive of the claim: Dr New because of all aspects of the work and Dr Giblin because of the computer work. It was open to the Arbitrator to accept the opinions of both doctors, as she did. If there are two potential causes of an injury (in this case, the computer duties and the nursing duties), which are both work related, it does not advance the employer’s position to say that one doctor refers to only one cause and another doctor refers to both.
That is so because Dr Giblin’s evidence, on its own, is sufficient to support a finding in favour of Ms Sotiropoulos. The Arbitrator acknowledged as much when she said, (at [19]) that Dr Giblin accepted that sitting for long periods at the computer with an offset angle “resulted in her neck symptoms and pathology”, (at [27]) that he still considered the neck injury to be work related, albeit only arising from Ms Sotiropoulos’s administrative duties at the computer, and (at [35]) that he “clearly concludes [that Ms Sotiropoulos] suffered a very serious discal injury at C5/6 that resulted in the need for surgery”. The Arbitrator’s findings were open on the evidence and disclosed no error. Dr Giblin’s opinion that the computer work caused the injury was not undermined by Dr New’s evidence that it occurred while treating patients and in the course of her office duties.
Mr Murray’s submissions might have had some merit if Dr New had had a history of the disc bulge having occurred while Ms Sotiropoulos performed a non-work activity. He did not have such a history and, in these circumstances, Mr Murray’s submissions are unsustainable. The history recorded by Dr New was consistent with the evidence from Ms Sotiropoulos that she felt symptoms both while at her computer and while attending to patients, which evidence the Arbitrator accepted.
The alleged inconsistency between the claim form and Dr New’s history is of no consequence, save (perhaps) as to Ms Sotiropoulos’s credit, which was not seriously challenged at the arbitration and is not the subject of challenge on appeal. The more significant point is that the claim form is consistent with Dr Giblin’s evidence and his evidence (on its own) strongly supports the claim.

SUBMISSION ABOUT DR NEW’S HISTORY

Submissions

Mr Murray submitted (without any reference to the transcript) that the appellant “directly submitted that Dr New’s history that the injury was the result of pushing the medication trolley and caring for residents should not be accepted as it was inconsistent with the description of injury contained in [Ms Sotiropoulos’s] own claim form” and the Arbitrator did not address the effect of this discrepancy.
He said that the history in the claim form should have been given significant weight by the Arbitrator “as to the asserted mechanism of injury (again in the absence of adequate pleadings)”. If the claim form had been given the weight the Arbitrator should have given it, Dr New’s history could not have been accepted.
Mr Kambas made the point that Dr New also thought that the office or administrative work also caused the pleaded injury.

Discussion and findings

Mr Murray did not refer to any part of the transcript to support his submission on this ground of appeal. The transcript reveals that Mr Murray’s submission is inaccurate.
Mr Saul made the following submissions about Dr New’s evidence:
(a)     that neither Dr New (nor Dr Gray) provided any opinion on causation (T7.8);
(b)     Dr New’s history (that it was in the care of residents and the pushing of medication trolleys that Ms Sotiropoulos felt that she had injured herself) came “back to the inadequacy of the pleadings and [the] completely different account to that which she gave in her notice of injury and claim form that I’ve already pressed on. There was no mention in those of her duties of caring for residents, pushing medication trolley’s [sic] etc” (T7.34) and if that was the pleading it should have been “properly addressed and specified” (T8.6), (Mr Saul had earlier addressed on the content of the claim form (at T4.16) and said (at T4.31) that the various medical histories were “problematic”), and
(c)     Ms Sotiropoulos categorically denied to Dr New that she had pain prior to 28 June 2010 (T9.19), which was inconsistent with her own evidence (T9.21).
The Arbitrator fairly summarised Mr Saul’s submission concerning Dr New’s history and the claim form at [10(k)] of her decision:
“(k)This [history by Dr New] was said to be a completely different account from that given by the applicant in her Notice of Injury and Claim Form, again reflecting the inadequacy of the pleadings. There is no reference in those documents to her duties of caring for residents, pushing medication trolleys etc. If that was meant to be the pleading[,] it should have been specified. There is no mention of those activities in the applicant’s own statement or from Dr Giblin.”
Thus, it is demonstrably clear that, contrary to Mr Murray’s submissions on appeal, Mr Saul did not submit that the Arbitrator should reject Dr New’s “history that the injury was the result of pushing the medication trolley and caring for residents”. His argument was that Dr New provided no opinion on causation and, going back to the inadequacy of the pleadings, that the history (recorded by Dr New) was a completely different account to that in the notice of injury form and in the claim form, and that the various medical histories were “problematic”.
I have already dealt with the pleadings and causation issues and will not repeat my comments on them.
The Arbitrator dealt with the inconsistencies in the histories as to the cause of the injury at [18], when dealing with the alleged inadequacy of the pleadings. She did not accept the “broad submission” that the further histories were “so inconsistent as to be ultimately unreliable”. Given the way the issue was argued, namely, in the context of the adequacy of the pleadings, that finding was open and disclosed no error. She did not deal with that issue further because Mr Saul did not argue that Dr New’s history should not be accepted because it was inconsistent with the claim form. It is not an error for an Arbitrator not to deal with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30]; 8 DDCR 111 (Bell)).
In any event, even if Mr Saul had argued this point at the arbitration, I do not believe the discrepancy between the claim form and Dr New’s history is of any significance. The claim form was only one part of the evidence. Dr New’s history was consistent with Ms Sotiropoulos’s statement, which referred to her feeling pain in her neck while sitting at her desk and when attending to residents. The Arbitrator accepted (at [22]) the factual foundation (in Dr New’s report), which was consistent with Ms Sotiropoulos’s statement and the Arbitrator’s earlier findings of fact (at [20]) about the nature of her duties. Those findings were open and disclosed no error.

DR NEW’S EVIDENCE

The Arbitrator’s reasons

The Arbitrator’s reasons dealing with Dr New’s evidence have been set out at [87], [88] and [91] above. Essentially, she felt that Dr New had a more complete and comprehensive history and that he was “very clear in his opinion that the neck injury is work-related” ([27]). She accepted that opinion.

Submissions

Mr Murray submitted that Dr New’s opinion did not provide a fair climate for the opinion ultimately expressed regarding the cause of the injury and his report should have been found to be of little value. He said that Dr New had no history of what constituted “modest lifting”, what caring for residents entailed, or how often medication trolleys would be pushed, or how heavy they were.
Mr Murray added that the doctor was “likewise unable to state how those duties caused any injury whatsoever” and he did not have a copy of Ms Sotiropoulos’s statement. The Arbitrator’s statement that Dr New’s report “greatly assists my understanding of the mechanism of injury” was “indicative of the undue and erroneous reliance placed on this report and opinion”. The Arbitrator fell into error in finding that Dr New’s report was of any value whatsoever on the issue of causation.
Mr Kambas submitted that Dr New was a treating doctor who interviewed Ms Sotiropoulos and obtained a history on which he based his opinion. Most doctors working in an office would have some idea of what office work involved including the lifting involved. The Arbitrator relied on Dr New as one piece of evidence when making her decision.

Discussion and findings

Mr Murray’s submissions have ignored the transcript and therefore ignored how Mr Saul conducted the arbitration. I have summarised (at [113] above) Mr Saul’s submissions dealing with Dr New’s evidence. Nowhere did he make anything like the submissions Mr Murray has made on appeal. (Mr Saul’s Makita submission, which is essentially the point Mr Murray is attempting to argue on appeal, related only to Dr Giblin’s evidence.) As previously noted, it is not an error for an Arbitrator not to deal with an issue not argued (Bell at [22] and [30]).
As the High Court has observed on more than one occasion, it is elementary that a party is bound by the conduct of his case and it is only in the most exceptional circumstances that a party is allowed to raise a new argument that was not put at the hearing (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483). Mr Murray has advanced no reason why the appellant should be permitted to raise on appeal, for the first time, the new issues identified in his submissions with respect to Dr New’s evidence.
However, as Mr Kambas has not objected to the point being argued on appeal, and as it does not prejudice Ms Sotiropoulos, I will deal with it.
Mr Murray’s submissions have ignored the basic principles dealing with the assessment of expert evidence in the Commission. Those principles were explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, where Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) said (at [82]) that there could 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. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report”.
Her Honour referred (at [78]) to the following statement by Spigelman CJ in Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [105], which she described as “clearly correct”. The Chief Justice said, at [105]:
“Although expressed in terms of ‘usefulness’, the starting point for Heydon JA’s detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention – the ‘prime duty’ – is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.” (emphasis added by Beazley JA)
Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]).
The principles in Makita were also explained in Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1, where Giles JA (Mason P and Beazley JA agreeing) held (at [631]):
“And, as was said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, absolute certainty that the opinion is based on the specialised knowledge is not required (at [14]) and many of the stated qualities of the opinion evidence by Heydon JA ‘involve questions of degree, requiring the exercise of judgment’ (at [87]).”
Dr New’s evidence comfortably satisfied the above standard. He based his opinion on the history he took from Ms Sotiropoulos, his findings on examination, the radiological evidence and, though unstated, his experience as an orthopaedic and spinal surgeon.
Apart from the history that, prior to 28 June 2010, Ms Sotiropoulos had not suffered any neck or arm pain (which the Arbitrator (correctly) did not consider of any great consequence ([31])), Dr New’s history was essentially consistent with Ms Sotiropoulos’s statement of 27 February 2012. His findings on examination were uncontroversial, as were the findings in the MRI scan, which confirmed the C5/6 disc protrusion. In these circumstances, Dr New’s history provided a “fair climate” (Paric) for the acceptance of his opinion. It follows that the Arbitrator’s reliance on Dr New’s evidence involved no error.
Mr Murray’s submission that the doctor was unable to state how Ms Sotiropoulos’s duties “caused any injury whatsoever” was misguided. The doctor expressed his opinion on causation and that opinion was one that the Arbitrator was entitled to accept and did accept. If the Arbitrator placed undue reliance on Dr New’s report (which I do not accept), Dr Giblin’s evidence, separately and independently, supported Ms Sotiropoulos’s case and provided a sufficient basis (on its own) for her to succeed.
The only evidence against the opinions of Dr Giblin and Dr New was the evidence of Professor Ehrlich, which the Arbitrator rightly rejected. Professor Ehrlich took no relevant history at all. He merely stated that Ms Sotiropoulos described her occupation “as doing office work in roster administration” and that her symptoms started in June 2010 when she experienced a kind of tingling sensation at the left trapezius edge just above the left shoulder blade. In the absence of any relevant history, his opinion that the disc protrusion occurred spontaneously carried no weight.

CONCLUSION

This appeal was completely without merit and should not have been filed. Mr Murray’s arguments with respect to the pleadings overlooked several fundamental matters relating to pleadings in general and proceedings in the Commission in particular. That was unsatisfactory. His submissions on the second and third grounds of appeal were based on patently false assumptions. His submissions on the fourth ground of appeal failed to make even a passing reference to the transcript of the proceedings before the Arbitrator. With respect to the last ground of appeal, Mr Murray’s submissions ignored how the arbitration had been conducted and ignored binding Court of Appeal authority dealing with expert evidence in the Commission.
This appeal has (yet again) highlighted the unsatisfactory practice of briefing counsel at the arbitration, but having a solicitor attempt to conduct the appeal on grounds not argued at the arbitration.

DECISION

The Arbitrator’s determination of 24 January 2014 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

30 April 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE