Sotico Pty Ltd v Wilson - [2007] WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SOTICO PTY LTD -v- WILSON [2007] WASCA 112

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 8 MARCH 2007

DELIVERED : 25 MAY 2007

FILE NO/S: CACV 67 of 2006

BETWEEN: SOTICO PTY LTD
Appellant
AND
KAREN WILSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram  :COMMISSIONER NISBET
File No  :C 10 of 2006

Catchwords:

Appeal - Workers' compensation - Turns on own facts

Legislation:

Workers Compensation and Injury Management Act 1981 (WA), s 213

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T H Offer
Respondent: Ms H E Prince

Solicitors:

Appellant: Julian Lentzner
Respondent: Chapmans

Case(s) referred to in judgment(s):

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Fox v Percy (2003) 214 CLR 118

STEYTLER P: I agree with Wheeler JA.
WHEELER JA:

Background

The background to this appeal is as follows. The respondent was employed by the appellant as a leading hand mill worker in February 2000. She was injured in that year while walking through a shed at the mill, when she fell into a hole. As she fell straight down, her arms went out to support herself and she came down on a piece of timber which caused an injury to her left shoulder. After some conservative treatment, in December 2001 she was reaching out with her left arm to get a board located high above her and developed a sharp pain in the left shoulder region with a tingling sensation.
She was referred to see Mr Peter Campbell, an orthopaedic surgeon. Some time later she underwent arthroscopic surgery which involved removal of a chipped bone in her shoulder region. Mr Campbell performed further surgery, for reasons which are not important in the present appeal. The respondent undertook a course of intensive physiotherapy and other rehabilitative measures.

The referral and medical evidence

In August 2004, the respondent lodged a "Form 22" referral to the Director of the former Conciliation and Review Directorate pursuant to the provisions of s 93D(5) of the Workers Compensation and Injury Management Act 1981 (WA). She claimed a degree of disability of not less than 16 per cent. There was a dispute, which seems to have been drawn out for a very considerable period of time. The appellant disputed the claimed degree of disability. There was conciliation, a number of interlocutory applications, an appeal to the Compensation Magistrate, and finally a referral of the dispute for arbitration. The Arbitrator heard the dispute in January 2006.
The medical evidence which the respondent lodged with her Form 22 included a report from Dr David Kennedy dated 27 August 2004, which expressed the opinion that the respondent had suffered a permanent loss of the efficient use of her left arm at and above the elbow joint of 26 per cent. That would give, by the calculations required under the Act, a disability of 23.4 per cent and therefore a disability not less than 16 per cent, as claimed by the respondent.

There were a variety of other medical reports before the Arbitrator. They included reports from the Perth Radiological Clinic and a number of reports by Mr Campbell. Most importantly, there was Mr Campbell's report of 30 July 2004. It was made following his review of the respondent on that day. He concluded that there was no discrepancy between the respondent's symptoms and her presentation, that she had made a partial recovery from the accident in 2001, but that she would sustain a permanent disability. His view was that because the disability was "still in evolution" it was not at that stage possible to make a final assessment of it in percentage terms. It appears from other material that Mr Campbell had formed the view that arthroscopic surgery would be necessary in order to determine the percentage degree of disability. It also appears that he had advised the respondent that it could be a further four years before he was able to assess the degree of disability.
Dr Kennedy had reviewed the respondent on 9 August 2004; that is, less than a fortnight after Mr Campbell. He was a medical practitioner whose letterhead describes him as practising "musculoskeletal medicine".

The issues before the Arbitrator

At the hearing of the referral before the Arbitrator, it appears that the appellant had at first sought an adjournment in order to have the respondent assessed yet again by Mr Campbell. That application was refused. Following the refusal of that application, detailed submissions were made to the Arbitrator.
The submissions of the appellant focused particularly upon the report of Dr Kennedy, and advanced a number of reasons as to why it should not be accepted. Unfortunately, the transcript of some of that argument is indistinct. However, it can be seen that it was suggested that Dr Kennedy's report contained a history which was argued to be inadequate compared to other histories given by the respondent, particularly those given to Mr Campbell. It was argued that Dr Kennedy's diagnosis was, in some respects, inconsistent with the radiological evidence. It was put to the Arbitrator that Mr Campbell's extensive experience with the treatment of the respondent meant that his assessment should be preferred, so that no percentage assessment of permanent disability could be made.

The Arbitrator's reasons

The reasons of the Arbitrator were as follows. The Arbitrator correctly set out the claim made by the respondent, and quoted from

Dr Kennedy's report. He correctly noted that it was not disputed that, if Dr Kennedy's assessment was accepted, the application of the statutory formula would mean that the respondent's disability should be assessed at not less than 16 per cent. He noted the respondent's and the appellant's books of medical reports. He quoted from the report of Mr Campbell dated 30 July 2004. In particular, he quoted the paragraph in which Mr Campbell asserted that it was not yet possible to make an assessment "in percentage terms". He recorded the history of the application for adjournment. In passages which were the subject of a later appeal, the Arbitrator said:
"13.The Respondent [Appellant] contended that Dr Kennedy's report was insufficient and attacked its accuracy and reliability on a number of grounds.
14.The Respondent [Appellant] asserted that Dr Kennedy's report failed to show on the balance of probabilities that the Applicant [Respondent] has a permanent disability of not less than 16%.
15.Except for one issue to which I refer below, it is not necessary for present purposes to detail the Respondent's [Appellant's] arguments. Suffice to say that after due consideration thereof, I am of the view that there are no grounds to reject Dr Kennedy's report."

The Arbitrator then referred to the adjournment application issue again. That was apparently the argument which he found it necessary to detail.
He concluded:
"17.In the result I am of the view that there are no grounds to reject Dr Kennedy's report and that, absent contrary medical evidence, that report being the report 27 August 2004 should be accepted."

The appeal to the Commissioner

The appellant appealed, by leave, to the Commissioner. An appeal to the Commissioner against a decision of an Arbitrator is available pursuant to s 247 of the Act by leave, only if "a question of law is involved". An appeal of that kind is to be by way of review of the decision appealed against and fresh or additional evidence is not permitted without the leave of the Commissioner (s 247(5), (6)). The grounds of appeal, leaving aside one which was not pursued, were said to be the following:
"(b)The Arbitrator erred in law by failing to take into account relevant considerations regarding the reliability and accuracy of Dr Kennedy's assessment of permanent disability when these were critical to determine whether medical evidence existed that discharged the Respondent's burden of proof that her relevant level of disability was not less than 16%.
(c)The Arbitrator erred in law by concluding that there was no medical evidence that presented a contrary assessment to Dr Kennedy's of the extent of the Respondent's permanent disability where Dr Kennedy's assessment was made at a time when the treating surgeon, Mr Campbell, considered it was impossible to assess the extent of permanent disability.
(d)The Arbitrator erred in law by failing to provide any or any adequate reasons why he was able to accept the medical assessment made by Dr Kennedy.
(e)The Arbitrator erred in law by failing to provide any or adequate reasons to support his conclusion that the Respondent demonstrated no grounds to reject Dr Kennedy's report when at least 5 such grounds were submitted by the Respondent."
The "questions of law involved" in these grounds were asserted, in the appellant's statement in support of its application for leave to appeal, to be:
"3.2Whether the Arbitrator's reasoning and therefore his ultimate decision is fundamentally flawed because:
(a)He relied on a medical assessment where the Respondent had not proved that it was based on the correct factual foundation; and/or
(b)He accepted the evidence of Dr Kennedy which was derived from a one‑off medico‑legal review when Dr Kennedy's assessment was provided at or around a time when the treating surgeon, Mr Campbell, considered it was impossible to assess the extent of permanent disability.
3.3Whether the Arbitrator provided any or any adequate reasons to support his decision." [citations omitted]
Taken together, it is difficult, if one leaves aside the question of the adequacy of reasons, to winkle out of these grounds and statements any question of law which might be involved. It is simply asserted that the Arbitrator failed to prefer the evidence of Mr Campbell to that of Dr Kennedy. The weighing of evidence involves questions of fact. It was not, as I understand it, asserted that there was no evidence upon which the Arbitrator could have reached his conclusion that the degree of disability was not less than 16 per cent. Rather, the appellant's contention had been all along that the Arbitrator should prefer the evidence which suggested that it was not possible to reach any conclusion as to the degree of disability.

The Commissioner's reasons

In any event, as I have noted, the Commissioner granted leave to appeal. The Commissioner correctly set out the four grounds of appeal which were pressed by the appellant. As to all of the grounds save for the one which is ground (c) above, the Commissioner summarised the appellant's arguments as relying upon four grounds. Those were said to be:
(1)That there was a conflict between the medical practitioners Mr Campbell and Dr Kennedy.
(2)That the history given to Dr Kennedy did not match the history given to Mr Campbell.
(3)That Dr Kennedy's diagnosis was, to a degree, inconsistent with the radiological evidence.
(4)That Dr Kennedy's instructions from the respondent's solicitors "directed him to assess permanent disability", rather than asking whether he agreed with Mr Campbell.
As to (2) above, the Commissioner examined for himself all of the medical reports which were before the Arbitrator and was unable to discern any difference in history which he considered to be of significance. He observed, entirely correctly in my respectful view, that there will inevitably be minor differences in the history taken, where there are a number of medical practitioners involved.
So far as (3) above is concerned, the learned Commissioner noted that Dr Kennedy had demonstrated in his report that he had the relevant MRI scans available for his examination, and had repeated in his report certain of the comments made by the radiologists concerned. It was the Commissioner's view that Dr Kennedy's "diagnosis", to the extent that it appeared to be different from that suggested by the radiological evidence, was due to no more than an inaccurate use of language. As to (4) above, the Commissioner observed, again in my respectful view correctly, that Dr Kennedy plainly thought that he was in a position to make an assessment of the degree of disability and he did so.
In relation to issue (1) above, the Commissioner's reasons were as follows:
"With regard to the first of these complaints the fact of the matter was that the only evidence of assessment of degree of disability before the arbitrator was that of Dr Kennedy. Just because the respondent's treating surgeon did not think he could make such an assessment at that particular time there is no reason to reject an assessment which appears, at least on the face of it, to have been appropriately made by another medical practitioner who had examined the respondent. It was open to the arbitrator to accept the evidence of Dr Kennedy if he chose. It is evident that he did, and in doing so, he made no error of law amenable to correction on appeal. The appellant's real complaint here comes down to a complaint about the weight which the arbitrator gave it, not as to its availability for use in the decision making process, and accordingly no error of law is demonstrated."
So far as the adequacy of reasons was concerned, the Commissioner said this:
"In this regard the issue facing the arbitrator was a very simple one. He had a report from Dr Kennedy saying that the respondent had a permanent degree of disability of not less than 16% and a report from her treating orthopaedic surgeon saying that it was too early to say what her residual permanent degree of disability would be. Dr Kennedy's assessment was attacked on the grounds I have already identified above and accordingly when the arbitrator came to the view that there were no grounds to reject Dr Kennedy's report upon any of the bases argued for the appellant, this left him with the only evidence of assessment of degree of disability upon which he could act, and he did so. No other reasons than those he gave are necessary in this regard, particularly having regard to the provisions of s.213(4) of the Act."

This appeal - Commissioner's error

Although there are notionally three grounds of appeal from the Commissioner's decision, they all revolve around one proposition. That proposition is that the Commissioner erred in concluding that "the only evidence of assessment of degree of disability" before the Arbitrator was that of Dr Kennedy. It is argued that the Arbitrator also had before him what one might term "negative evidence" of degree of disability, in the form of the report of Mr Campbell which was to the effect that no permanent degree of disability could be assessed. For the Arbitrator to accept Dr Kennedy's report, he necessarily had to reject Mr Campbell's. It was therefore necessary, it is submitted, in deciding whether the respondent had discharged the onus of demonstrating a degree of permanent disability of not less than 16 per cent, to provide reasons for preferring one to the other.
While these propositions would make a good deal of sense if one were considering simply the concept of a duty to give reasons as generally understood, without reference to any particular statutory context, it is much more difficult to sustain them when regard is had to s 213 of the Act, to which the Commissioner specifically referred. That section provides, relevantly, that:
"(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so;
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case."
It is important, in my view, to have regard to s 213 against the factual context in which it was enacted. Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. Injured workers may suffer from a number of different conditions at the same time, and different medical practitioners may assess each different condition in different percentage terms, giving rise to a very large number of potential outcomes. It is against that background that the Arbitrator is required only to identify the facts accepted and to give the reasons for doing so.
By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected.
The present case, however, was not a case of the kind which involves differences in the outcome of clinical examination, or differences in reasoning process. There were no more than bare assertions on each side. As a matter of law, it is my view that the Commissioner was correct in identifying the task of the Arbitrator as a "very simple one". It was correct to say, as the Commissioner did, that if the Arbitrator came to the view that there were no grounds to reject Dr Kennedy's report, then he could act upon it.
Notwithstanding that, it seems to me that the Commissioner did err in concluding that the reasons of the Arbitrator were adequate. That is because those reasons gave no indication of why the Arbitrator had rejected the attack upon the report of Dr Kennedy. The Arbitrator could have performed that task either positively, by explaining what it was about Dr Kennedy's report that led him to consider that the assessment of the 26 per cent disability was reliable, or negatively, by explaining why it was that he considered that the attacks on Dr Kennedy's reliability lacked substance. However, unfortunately, he did neither. To that extent, I would accept that the Commissioner erred in law in holding that the reasons of the Arbitrator were adequate.
There is little that the Arbitrator could have said, in order to explain why he had accepted Dr Kennedy's report in preference to that of Mr Campbell. Both were apparently qualified to express an opinion on the relevant issue. It may be that the Arbitrator simply considered that the Act does not require quite the degree of precision which Mr Campbell's very cautious approach implies. It would have been sufficient for him simply to have made an observation of that kind, but he did not do so.
It is apparent that, although the Commissioner had power pursuant to s 247 of the Act to substitute his own decision for that of the Arbitrator, and therefore it would have been open to him to decide the matter himself upon the basis of the medical evidence, he did not purport to do so. Rather, he regarded himself as upholding a decision of the Arbitrator which was "open" to the Arbitrator, on the basis that no error had been demonstrated in the Arbitrator's reasons.

The disposition of the appeal

Pursuant to s 254 of the Act, a party to a proceeding before the Commissioner requires leave of this Court to appeal from a decision of the Commissioner "on a question of law". No attention has been given in this case to the issue of what purpose the leave requirement serves, or of what criteria the Court should apply in determining whether or not leave should be granted. It may be arguable that, notwithstanding that the Arbitrator erred by failing to give adequate reasons, and that the Commissioner also erred by failing to recognise that inadequacy, leave ought not to be granted because the appellant has suffered no injustice, on the basis that the decision made by the Arbitrator was the only appropriate one in the circumstances. However, that issue was not argued, and it would be inappropriate to determine it in this appeal.

Assuming that leave should be granted, this Court may affirm, vary or set aside the decision of the Commissioner, make any decision that the Commissioner could have made, or send the matter back to the Commissioner for reconsideration (s 254(3)). In the general run of cases, where the matter has been determined before the Arbitrator on the papers, it seems to me that the appropriate course in a case of this kind would be to send the matter back to the Commissioner with a direction that he reconsider the matter and make the decision which in his view the Arbitrator should have made in the first place, giving appropriate reasons for that decision. That is the course which I would adopt wherever the medical evidence has any degree of complexity.
However, in this case, the evidence seems to me to be very straightforward. The only issue is whether the report of Mr Campbell is to be preferred to that of Dr Kennedy in relation to the question of whether it was possible, at the time at which each assessed the respondent, to assess a degree of disability. Each of those doctors considered that the disability was permanent, and only the question of degree was in issue.
I would have no hesitation in preferring the views of Dr Kennedy in this respect. It is clear that each medical practitioner is of the view that the respondent will have restrictions in relation to the use of her left shoulder joint in future. The only reason Mr Campbell seems to be of the view that he cannot assess a percentage disability, is that "there is not a lot of international experience for cartilage transplantation in the shoulder and it may take four years or more before we know what the end result would be like" (Report, 30 July 2004). There is, however, nothing in any of Mr Campbell's reports which suggests that what experience there is points to the probability that there will be any significant difference between the respondent's condition as assessed in July 2004 and her likely condition in the future. In those circumstances, it seems to me entirely reasonable to take the view apparently adopted by Dr Kennedy, and to project the respondent's existing symptoms forward into the foreseeable future.
Further, the statutory context is also of relevance. The Act calls for an assessment, in precise percentage terms, notwithstanding that advances in medical science, and necessarily varying responses to treatment, and individual differences in resilience, mean that many such predictions may later be proved to be incorrect to some degree. It appears to me that, in taking the very cautious approach which he did, Mr Campbell was searching for a degree of certainty which the Act does not contemplate. That impression is fortified by his later suggestion that an arthroscopy might be necessary, not to treat the respondent's condition, but to assess it with the appropriate precision.
Finally I would note that since Dr Kennedy's assessment was of a 26 per cent permanent loss of efficient use of the left arm at and above the elbow joint, giving a degree of disability of 23.4 per cent, even some improvement into the future would be unlikely to result in the respondent's permanent level of disability falling below 16 per cent.

I would therefore grant leave, but dismiss the appeal.
PULLIN JA: A person who is injured at work due to negligence of an employer may sue for damages in the common law courts. A constraint has been imposed by Parliament in the Workers' Compensation and Injury Management Act 1981 (WA) which directs a court not to award damages to a person contrary to Pt IV Div 2 of the Act. See s 93C. The constraint prevents an award of damages unless the worker establishes, by agreement or determination, that he has a degree of disability that is "not less than the relevant level". If there is an agreement or a determination (and in some cases an election to sue) then there is no constraint on the courts to award damages if a cause of action is made out.
If agreement cannot be reached, then a determination must be made by an Arbitrator. Parliament did not intend that the parties should engage in substantial, complex and expensive litigation in resolving a dispute about the degree of disability. The Arbitrator is not bound by the rules of evidence (s 188), hearings are in private (s 199), procedure is for the Arbitrator to decide (s 188) and the decision of the Arbitrator does not have to be supported by reasons for decision in every case (s 213). A party may request reasons for decision but, consistently with the objective of keeping the process as simple as possible, s 213(4)(a) states that the reasons for an Arbitrator's decision need only identify the facts that the Arbitrator has accepted in coming to the decision and the law that the Arbitrator has applied in coming to the decision and the reasons for doing so. He is not obliged to canvass all the evidence given in the case and he is expressly excused by s 213(4)(d) from having to canvass all the factual and legal arguments or issues arising in the case.
In this case the issue was very simple. Mr Campbell, who was the treating doctor, wrote a report dated 30 July 2004 in which he said:
"This lady has made a partial recovery from the alleged incident on the [sic] 4 December 2001. I cannot elucidate any other factors which are affecting this lady's recovery. This lady will sustain a permanent disability as a result of the work injury sustained on 4 December 2001. Because this is still in evolution, it is not possible yet to make that final assessment and to present this in percentage terms.
The prognosis remains guarded both in the short and long term as there is not a lot of international experience for cartilage

transplantation in the shoulder and it may take four years or more before we know what the end result would be like."

The respondent's solicitors then wrote to a Dr Kennedy, advising that they were acting for the respondent and asking for Dr Kennedy to review her injury. A full history was given, including the fact that she was under the care of Mr Campbell, and advising Dr Kennedy that Mr Campbell considered that it may be up to four years before he might assess her percentage degree of disability. Dr Kennedy was asked for an opinion.
By letter dated 27 August 2005, Dr Kennedy gave a detailed report setting out the history, the respondent's current complaints, the results of his physical examination, the radiological reports that he had seen and concluded with an opinion which ended:
"Mrs Wilson, as a consequence of the work related injuries sustained to her left shoulder joint, pursuant to Item 13 has a permanent loss of efficient use of the left arm at and above the elbow joint of 26%."
The matter was then referred off to the Arbitrator and the Arbitrator heard submissions about why Dr Kennedy's opinion should not be accepted and why Mr Campbell's view, that the assessment could not yet be made, should be accepted. The Arbitrator recorded what Dr Kennedy's report said as quoted above, and recorded what Mr Campbell had said as set out above. The Arbitrator referred to the fact that the present appellant had lodged an application seeking an adjournment on the basis that it wanted the worker reviewed by Mr Campbell. The application for an adjournment was refused (not by the Arbitrator whose decision is under review). The Arbitrator continued:
"13.the Respondent contended that Dr Kennedy's report was insufficient and attacked its accuracy and reliability on a number of grounds.
14.The Respondent asserted that Dr Kennedy's report failed to show on the balance of probabilities that the Applicant has a permanent disability of not less than 16%.
15.Except for one issue to which I refer below it is not necessary for present purposes to detail the Respondent's arguments. Suffice it to say that after due consideration thereof, I am of the view that there are no grounds to reject Dr Kennedy's report."
The other issue "referred to below" was that the present appellant had been in possession of Mr Campbell's report of 30 July 2004 from mid‑August 2004 and had taken no steps to arrange for a further examination by Mr Campbell until December 2005, which prompted the unsuccessful late application for an adjournment.
The Arbitrator then determined that the applicant had a permanent degree of disability of not less than 16 per cent.
The appellant complains in this Court, as it complained to the Commissioner, that the Arbitrator's reasons were inadequate. The inadequacy is said to be contained in [13], [14] and [15]. Particular complaint was made about the Arbitrator's statement that it was not necessary to detail the respondent's argument. That complaint cannot be sustained in the face of s 213(4)(d).
The issue was very straightforward. One doctor said that he was unable to make an assessment (and surprisingly suggested that any assessment would have to await the possibility of an operation which might never become available) and the other doctor was prepared to make an assessment. In my opinion, the reasons are adequate and in accordance with Parliament's intention that the Arbitrator should act economically and quickly. In my opinion they are not only adequate but commendable in their brevity.
The appeal to the Commissioner was one which required the grant of leave. Section 247(2) of the Act states that the Commissioner is not to grant leave unless a question of law is involved. Part XIII of the Act makes it clear that the appeal is an appeal by way of rehearing. This emerges from s 147(7), which states that, on hearing an appeal made under this section, the Commissioner may affirm, vary or quash the decision appealed against, or substitute and make, in addition, any decision that should have been made in the first instance. Section 245(1)(b) states that, unless the contrary intention appears in Pt XIII, in the exercise of jurisdiction under Pt 13, the Commissioner has and may exercise or perform all of the powers, duties, responsibilities, authorities and jurisdictions of an Arbitrator. Once a question of law is identified, leave is granted and an error of law is held to have occurred (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]), then the Commissioner is obliged "within the constraints marked out by the nature of the appellate process … to conduct a real review …": Fox v Percy (2003) 214 CLR 118 at [25].
If an appeal is taken against the decision of the Commissioner then the appeal is to the Court of Appeal pursuant to s 254(1). Leave is required and the appeal must be from a decision of the Commissioner in the proceeding "on a question of law". If leave is granted, the Court of Appeal has the usual plenary powers to affirm, vary or set aside the decision of the Commissioner, or to make any decision that the Commissioner could have made. The Court also has the power to decide that it is necessary to send the matter back for reconsideration. The rules of the Court of Appeal provide that the appeal is by way of rehearing.
Having made those observations concerning the nature of the proceedings before the Commissioner and this Court, I now turn to the Commissioner's decision. The Commissioner decided there was no error of law made by the Arbitrator. He held that it was open to the Arbitrator to accept the evidence of Dr Kennedy, that the appellant's real complaint was about the weight the Arbitrator gave to it and that no error of law was demonstrated. I agree that there was no error for the reasons the Commissioner gave.
However, in case other minds differ, I will assume that there was an error and that the Arbitrator's reasons were inadequate at law. If that is so, then the Commissioner made an error by failing to detect the existence of an error of law by the Arbitrator. That error was an error of law. However, the Commissioner has reviewed the evidence and reached his own conclusion. Thus, even if it be correct that the Commissioner failed to detect error when error existed, the Commissioner's reasons provide entirely adequate reasons for an affirmation of the Arbitrator's determination. The Commissioner in his reasons referred to the report of Dr Kennedy and referred to the report of Mr Campbell. He said:
"7.Grounds 1, 2 and 4 can be dealt with together, as they were by the appellant's counsel during the course of hearing of the appeal. In this regard, during the course of the arbitration, the appellant attacked the medical evidence upon which the respondent was relying, on four grounds they being that:
.1There was a conflict between the medical practitioners because the treating orthopaedic surgeon, Dr Campbell, had seen the respondent on many occasions and carried out all relevant surgery and yet he gave the opinion that it was not possible to assess any permanent disability as at July 2004 whereas Dr Kennedy, it was said, had seen the respondent on only one occasion and yet made the assessment at around the same time.
.2The history given to Dr Kennedy as revealed by his report did not include any references to any other medical issues affecting the injured shoulder and it was said that the history given to Dr Kennedy did not match the history given to Dr Campbell with there being no explanation of the differences in the history by the respondent before the arbitrator.
.3Dr Kennedy's diagnosis of 'extensive damage to her left shoulder joint involving the rotator cuff tendon with a insubstance (sic) tear to the infraspinatus tendon with tendonopathy involving the supraspinatus tendon and the development of extensive subdeltoid, subacromial bursitis as well as extensive damage to the articular cartilage in the glenohumeral joint' was said to be inconsistent with the radiological evidence and the reports of Drs Campbell, Whyte and Fallon.
.4Dr Kennedy's instructions from the respondent's solicitors directed him to assess permanent disability notwithstanding Dr Campbell's view that it was premature to do so rather than asking whether he had agreed with Dr Campbell's view in that regard.
8.With regard to the first of these complaints the fact of the matter was that the only evidence of assessment of degree of disability before the arbitrator was that of Dr Kennedy. Just because the respondent's treating surgeon did not think he could make such an assessment at that particular time there is no reason to reject an assessment which appears, at least on the face of it, to have been appropriately made by another medical practitioner who had examined the respondent …
9.With regard to the second ground of complaint I have examined all of the medical reports which were before the arbitrator and I have been unable to discern any difference in history which suggests that the arbitrator should have disregarded Dr Kennedy's report as being unreliable which, in essence, again, is the complaint really being made by the appellant in this matter. In thirty years or more in legal practice and having read medical reports by many medical practitioners in respect of the same patient, I have observed that there will inevitably be minor differences in the history taken. Most times the medical profession disavows any responsibility for inaccuracies in the history, however, my experience has been that there is as much inaccurate history taking as there is inaccurate history giving, and that before a medical report can be disregarded it must be demonstrated that there is more than just an inaccurate history giving. Generally speaking in cases which revolve around the history given to various medical practitioners, it is the credibility of the patient which is at issue. There is no suggestion in any of the reports that I have read that the respondent was an inaccurate reporter or unreliable or that the circumstances surrounding her accident, her injuries and her subsequent treatment and attempts of rehabilitation, were anything but appropriate. ...
10.The third complaint, as I understand it, revolves around the description of there being extensive damage 'to her left shoulder joint involving the rotator tendon' at least, on my reading of the reports, this is what it must relate to because in all other respects Dr Kennedy's diagnosis is supported by the various MRI scans that have been taken with respect to the respondent's shoulder. Dr Kennedy certainly demonstrates in his report that he had the relevant MRI scans available for his examination at that time because he specifically mentions them and repeats the comments that have been made by the radiologists concerned. In the end result it seems to me that there has simply been some inaccurate use of language because the MRI scan reports demonstrate that 'there is no evidence of a full thickness or major partial thickness rotator cuff tear' (Dr Whyte's report of 30 April 2002 refers) (a report not mentioned by Dr Kennedy) a finding repeated in Dr Davis' report of 22 October 2002 which was seen by Dr Kennedy and, for the sake of completeness which reads: 'The rotator cuff remains intact. There is no high grade partial or full thickness tear.' In all other respects, however, Dr Kennedy's diagnosis accords with the radiological evidence and the reports of the radiologists and of Dr Campbell. It is correct for him to describe that there was extensive damage to the respondent's left shoulder joint involving the rotator cuff tendon - and that is the sense in which I understood the report …
11.As to the fourth and final complaint under these grounds of appeal, it was quite open to Dr Kennedy to say that he could not assess permanent disability because it was too early to do so. As Dr Kennedy's report clearly discloses, he thought he was in a position to make the assessment requested of him and did so ... "
These reasons are entirely adequate reasons for affirming the decision of the Arbitrator.
The result is that, even if the Commissioner erred by not detecting an error of law by the Arbitrator and ground 3 was upheld, then this Court would be obliged to reach its own decision. There was no particular advantage which the Arbitrator or the Commissioner had which makes it impossible for this Court to reach a decision. I adopt the reasons of the Commissioner set out above which explain why Dr Kennedy's report should have been accepted, why the appellant's submissions should be rejected and why the Arbitrator's determination should be affirmed.
I would therefore refuse leave to appeal and dismiss the appeal.