Southern Meats Pty Ltd v Tucker
[2021] NSWWCCPD 2
•14 January 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Southern Meats Pty Ltd v Tucker [2021] NSWWCCPD 2 |
| APPELLANT: | Southern Meats Pty Ltd |
| RESPONDENT: | Robert Tucker |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-2954/20 |
| SENIOR ARBITRATOR: | Ms J Bamber |
| DATE OF ARBITRATOR’S DECISION: | 8 September 2020 |
| DATE OF APPEAL DECISION: | 14 January 2021 |
| SUBJECT MATTER OF DECISION: | Rejection of uncontradicted expert evidence, acceptance of expert evidence – Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 applied; whether error to prefer the evidence of a treating surgeon over the evidence of a medico-legal expert – Shellharbour City Council v Rigby [2006] NSWCA 308 applied; lack of complaints of symptoms prior to cessation of employment – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 discussed |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Stockley, counsel | |
| Kemp & Co Lawyers | |
| Respondent: | |
| Mr J Wilson, counsel | |
| Stacks Law Firm | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s Certificate of Determination dated 8 September 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
Mr Robert Tucker (the respondent) was employed by Southern Meats Pty Ltd (the appellant) as a labourer in the appellant’s abattoir. He commenced in that employment in January 2006.
The respondent suffered injuries to his left shoulder in 2012, on 5 February 2015 and in late May 2015. He ceased work in September 2015. The respondent developed symptoms in his right shoulder, which were first recorded by his physiotherapist on 26 July 2016. The respondent asserted that the right shoulder symptoms arose as a result of the heavy nature of his work with the appellant. He also attributed the symptoms to having to use the right arm more because of the left shoulder injury. The respondent made a claim for the cost of surgery to the right shoulder in the form of a reverse total shoulder replacement.
The appellant accepted liability for the respondent’s left shoulder condition, but disputed liability in relation to the right shoulder on the basis that the right shoulder was not injured as alleged, was not rendered symptomatic as a consequence of the left shoulder injury and the surgery was not reasonably necessary.
The respondent brought proceedings in the Commission, seeking an order that the proposed surgery to the right shoulder was reasonably necessary and for the respondent to pay the cost of the surgery. The matter proceeded to arbitration before Senior Arbitrator Bamber, who found in favour of the respondent and made orders accordingly.
The appellant appeals that decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers.’
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The respondent’s statement
The respondent provided a statement dated 8 April 2019.[1] He gave a history of the various types of manual work he had undertaken prior to commencing employment with the appellant. The respondent described the heavy nature of his duties with the appellant. He referred to an earlier injury which he suffered in the course of his employment with the appellant on 6 August 2012. The respondent said that in that incident he was pulling sheepskins, fell backwards onto a crate, and injured his back, left shoulder and neck. He reported the injury, took time off work, but did not make a claim for compensation. The respondent said he was certified as fit for unrestricted duties from 28 August 2012 and did not suffer any pain or disability thereafter.
[1] Application to Resolve a Dispute (ARD), pp 301–311.
The respondent described the injury on 5 February 2015, which he said involved lifting a sheep which was particularly heavy. The respondent said that as he grabbed the sheep with his left arm, he experienced pain in his left shoulder. He continued to work for a week but was unable to move his left arm, so he reported the injury and consulted his doctor, Dr Fadi Mahfoud, general practitioner.
The respondent said that Dr Mahfoud referred him to Dr Wisam Ihsheish, orthopaedic surgeon, who he consulted on 4 June 2015. The respondent said that, at that consultation, he advised Dr Ihsheish that he had re-injured his left shoulder while performing “light duties” in the week before the consultation.
The respondent gave details of his continuing pain, restrictions in use of the left arm and the ongoing treatment from Dr Mahfoud, who referred the respondent to Dr Vera Kinzel, orthopaedic surgeon. Dr Kinzel performed a left shoulder rotator cuff repair on 4 March 2016. The respondent reported that the surgery did not improve the pain.
The respondent said that over time, he began to experience difficulties with his right shoulder, which Dr Kinzel told him resulted from overusing his right side because of the left shoulder problems. He said that he was left arm dominant but would use both arms to perform the manual labour involved with his employment with the appellant. The respondent advised that he underwent an MRI scan of the right shoulder on 20 November 2018, which Dr Kinzel told him showed a full thickness tear that would require surgery in the form of a right rotator cuff reconstruction and possible tenodesis. The respondent said that the appellant refused to meet the cost of the surgery on the basis that they did not accept that he had suffered an injury to his right shoulder.
The respondent gave details of the second injury to the left arm when he was pulling the hose, which he said occurred while he was on “light duties” and occurred in about the end of May 2015. He also reported that on 15 September 2015, he was removing the hocks from a sheep with a large saw when the hock flew out of the saw and hit him in the left shoulder. The respondent said that he reported the injury, was put off work and did not return to work thereafter. The appellant accepted liability for the left shoulder injuries.
The clinical notes from the Argyle Medical Centre
The clinical notes from the Argyle Medical Centre commencing from 2006 were in evidence.[2] The first entry relevant to these proceedings was recorded by Dr Mahfoud on 17 August 2012, and referred to the respondent having fallen at work, injuring his back and left shoulder. On 24 August 2012, Dr Mahfoud noted some improvement since the previous week, and on 28 August 2012, Dr Mahfoud recorded that the respondent had no more pain in the left shoulder and wished to return to work the following day.[3]
[2] ARD, pp 46–261.
[3] ARD, pp 66–67.
The respondent continued to consult Dr Mahfoud from that date without any relevant complaints up to and including 5 June 2015. On 6 July 2015, the respondent complained to Dr Mahfoud of pain and restriction of movement of the left shoulder following a left biceps tear five months previously, for which he had sought treatment from another doctor.[4]
[4] ARD, p 79.
On 17 September 2015, the respondent again complained of left shoulder symptoms, on this occasion caused by being hit by a sheep’s hock on 15 September 2015.[5] The respondent continued to consult Dr Mahfoud complaining of left shoulder symptoms and restricted range of movement. On 18 April 2016, the respondent attended for review following the surgery to the left shoulder performed in March 2016. Dr Mahfoud noted that the left shoulder was stable and improving.[6] In entries that followed, Dr Mahfoud noted ongoing symptoms and restricted range of movement. By 12 October 2016, Dr Mahfoud described “limited” range of movement.[7] On 15 January 2018, Dr Mahfoud noted that the respondent’s “right shoulder has been compensating.”[8]
[5] ARD, p 82.
[6] ARD, p 86.
[7] ARD, p 88.
[8] ARD, p 97.
The respondent continued to attend Dr Mahfoud, complaining of left shoulder symptoms with restricted range of movement. The final entry in the clinical notes was on 14 December 2018.[9]
[9] ARD, p 105.
The clinical notes from McNamara Physiotherapy
The respondent attended McNamara Physiotherapy from 18 June 2015 to 8 August 2016 for treatment to his left shoulder. The clinical notes from that practice were in evidence.[10] The records show that the respondent continued to complain of pain in, and difficulties with, his left shoulder. Relevantly, on 25 July 2016, Ms Trish McNamara, the physiotherapist, noted that the respondent was also complaining of pain in the right shoulder.[11]
[10] ARD, pp 10–46.
[11] ARD, pp 22–23.
Dr Vera Kinzel
Dr Kinzel provided a number of reports detailing the respondent’s complaints and the treatment provided to him by her. Not all of those reports are relevant in terms of addressing the issues on appeal.
Relevantly, on 4 September 2015 Dr Kinzel reported to Dr Mahfoud that the respondent had suffered an injury to his left shoulder at work seven months previously, following which the respondent was required to continue to undertake heavy work. Dr Kinzel said that the respondent was in considerable pain over the shoulder and distal biceps. She was of the view that the respondent suffered from pre-existing rotator cuff pathology which was exacerbated by the incident seven months earlier and that in that incident, the respondent ruptured the long head of the biceps. Dr Kinzel foreshadowed that the respondent would likely require a reverse total shoulder replacement in the near future.[12]
[12] ARD, pp 299–300.
In a report dated 25 January 2017, Dr Kinzel advised Dr Mahfoud that the respondent had unfortunately not recovered good function of the left shoulder. The respondent was unable to abduct or elevate more than 90 degrees without experiencing pain and was unable to sleep.[13]
[13] ARD, p 288.
On 22 June 2017, Dr Kinzel reported to Dr Mahfoud following the left reverse total shoulder replacement six weeks earlier and advised Dr Mahfoud that the respondent was still wearing a sling for his left arm.[14]
[14] ARD, p 283.
In a short report dated 14 September 2017, Dr Kinzel advised Dr Mahfoud that the respondent had told her that his right shoulder was symptomatic as he had to “compensate”. Dr Kinzel noted that the respondent had worked in the meat industry for a long time and “definitely has evidence of long time manual work injuries to his shoulder.”[15]
[15] ARD, p 280.
On 27 September 2018, Dr Kinzel wrote to Dr Mahfoud, confirming that it had been just over a year since the reverse total left shoulder arthroplasty but that the respondent continued with a poor range of motion. She opined that the range of motion would not be assisted by physiotherapy, although continuing physiotherapy would help the respondent’s symptoms and pain.[16]
[16] ARD, p 274.
Dr Kinzel reported to Dr Mahfoud on 22 November 2018.[17] Dr Kinzel advised that the right shoulder MRI scan showed a full thickness tear with a 3 cm retraction. Dr Kinzel said that, given the length of time the respondent worked in the meat industry, the right shoulder condition was a significant injury and would require a rotator cuff reconstruction and biceps tenodesis. Dr Kinzel was of the view that the respondent’s work in the meat industry was the sole contributing factor in the development of the pathology. Dr Kinzel added that the recent surgery to the left shoulder was also a contributory factor to the development of the rotator cuff tear as it was “now an overcompensatory injury.”
[17] ARD, p 263.
Dr Kinzel wrote to Dr Neena Gottipati, general practitioner (from the same practice as Dr Mahfoud), on 12 March 2020. Relevantly, Dr Kinzel reported that the respondent was still experiencing difficulties with his right shoulder. She said that he had “worked in the meat processing industry and his rotator cuff tears are solely due to the manual work he had to perform over the years. Heavy lifting, especially in the overhead position, strains the rotator cuff and eventually leads to tearing.”[18]
[18] ARD, p 313.
Dr Kinzel also provided a report dated 9 April 2020 directed to the respondent’s legal representatives.[19] She advised that the respondent was “well known” to her. Dr Kinzel reported that the respondent had experienced a good result from the left reverse shoulder replacement surgery but that following a prolonged recovery, the respondent’s right shoulder deteriorated. She opined that he was suffering from an over-compensation injury directly related to the incident in which the left shoulder was injured. Dr Kinzel also observed that the respondent had worked in the meat industry for over 10 years, which was physically hard work and the symptoms were directly related to that employment. Dr Kinzel explained why the proposed right reverse shoulder replacement was necessary.
[19] ARD, pp 315–316.
Dr Roger Pillemer, orthopaedic surgeon
The respondent’s legal representatives arranged for Dr Pillemer to examine the respondent and provide a forensic opinion. Dr Pillemer provided a report dated 15 March 2018.[20] Dr Pillemer took the history that the respondent suffered an initial injury to his left shoulder in 2012, following which he had a few days off work and then returned to normal duties, with some residual ongoing symptoms. Dr Pillemer recorded that the respondent suffered a further left shoulder injury on 15 February 2015 (sic, 5 February 2015) when he was pulling a sheep which had become stuck. Dr Pillemer noted that the respondent experienced ongoing problems in the left shoulder since that injury.
[20] ARD, pp 1–5.
Dr Pillemer said that the respondent informed him that his right shoulder also became symptomatic at that time, but that his treating doctors were concerned with treating his left shoulder symptoms. Dr Pillemer took a history of the further injuries when the respondent was pulling the hose and when the sheep’s hock struck the respondent. Dr Pillemer reviewed the treatment provided to the respondent, including the surgeries to the left shoulder. He noted that the respondent’s left shoulder symptoms were significant and aggravated by movement and that the respondent’s right shoulder symptoms were worsening.
On examination, Dr Pillemer found restrictions of movement in both shoulders. He concluded that the left shoulder rotator cuff tear was attributable to the heavy nature of the respondent’s work as well as the injury in February 2015. Dr Pillemer was of the opinion that this would be the case for the right shoulder as well, but that the right shoulder condition could also be regarded as a condition consequent upon the restriction of the function of the left shoulder. In summary, he was of the view that the heavy nature of the work performed by the respondent and the injury in February 2015 were substantial contributing factors to the ongoing symptoms in both shoulders. Dr Pillemer gave his opinion in relation to the respondent’s fitness for employment, need for treatment and the degree of permanent impairment.
Dr Pillemer provided a second report dated 5 February 2019, following a re-examination of the respondent.[21] Dr Pillemer confirmed that his opinion expressed in his earlier report remained unchanged. He reiterated that in his opinion, the rotator cuff injuries to both shoulders were consistent with the history provided to him, noting that the work the respondent performed for the appellant was, at times, very heavy. Further, the surgery proposed by Dr Kinzel was medically necessary and as a result of the nature and conditions of the respondent’s employment.
[21] ARD, pp 6–9.
On 26 May 2020, Dr Pillemer responded to a further request for information from the respondent’s legal representative.[22] He noted that Dr Kinzel was of the view that the respondent required a right reverse total shoulder replacement because the respondent’s condition in that shoulder had deteriorated. Dr Pillemer was of the view that the surgery proposed by Dr Kinzel was reasonably necessary. He added that the nature and conditions of the respondent’s employment would be considered substantial contributing factors to the need for the surgery.
[22] Respondent’s Application to Admit Late Documents dated 2 June 2020.
Associate Professor Paul A Miniter, orthopaedic surgeon
A/Prof Miniter examined the respondent on 3 April 2018 and provided a report dated 4 April 2018 at the request of the appellant.[23] He took a history of the left shoulder problems in 2012, which he said were not associated with any specific injury, and the injury on 5 February 2015. A/Prof Miniter noted the radiological findings in respect of the left shoulder and the treatment provided to the respondent, including the left rotator cuff repair, which he considered was a failure. He further noted the heavy nature of the work with the appellant and was of the view that the respondent was fit for light manual work.
[23] Reply to Application to Resolve a Dispute (Reply), pp 25–30.
A/Prof Miniter was asked to provide his opinion as to whether the respondent suffered from a consequential condition in his right shoulder as a result of the left shoulder injury. He was of the view that:
“There is no evidence of consequential injury to the right shoulder as a result of the left shoulder. [The respondent] had a full range of motion of the right shoulder, and apparently the rotator cuff appeared to be well maintained on clinical examination.”[24]
[24] Reply, p 29.
In a supplementary report dated 4 April 2018, A/Prof Miniter provided an assessment of 8% whole person impairment of the respondent’s left upper extremity. He said that there was no evidence of any permanent impairment of the right shoulder as, on examination, there was full range of motion.[25]
[25] Reply, pp 31–32.
A/Prof Miniter provided a number of further supplementary reports. On 19 July 2019, he provided an opinion in relation to the report of Dr Pillemer dated 15 March 2018.[26] He noted that Dr Pillemer recorded a restricted range of motion in the right shoulder, in contrast to his findings of full range of motion. A/Prof Miniter further noted Dr Pillemer’s view that the respondent suffered a consequential condition in the right shoulder. A/Prof Miniter considered that the “medical literature” was clear on the matter and that there was no evidence of consequential injury. He observed that there was “no support of consequential injury in objective randomised controlled trials,”[27] presumably referring to the right shoulder.
[26] Reply, pp 146–149.
[27] Reply, p 146.
A/Prof Miniter noted that Dr Pillemer also considered that the pathology was due to the heavy nature of the respondent’s employment with the appellant. A/Prof Miniter reviewed the MRI scan dated 20 November 2018 and concluded that there was rotator cuff arthropathy developing in the respondent’s right shoulder. He further concluded that the presentation was similar to that in the left shoulder, there had been no work-related injury to the right shoulder and the changes to the rotator cuff were age-related. A/Prof Miniter opined that the rotator cuff repair proposed by Dr Kinzel was not appropriate, particularly in the light of the failure of that procedure on the left shoulder. He said that the definitive solution was a reverse shoulder replacement to address the age-related changes, however the surgery was not at that stage necessary because the respondent had very adequate function. A/Prof Miniter recommended simple conservative management.
A/Prof Miniter reiterated that, despite the opinions of Dr Pillemer and Dr Kinzel, there was no evidence of consequential “injury” to the right shoulder. He maintained that both doctors ought to be aware of “the literature which suggests that there is no objective basis for the comment,” which was “well described in the literature,”[28] and said that references to support the view could be sought. A/Prof Miniter also concluded that the respondent had not suffered an injury to his right shoulder as a result of the nature and conditions of his employment, noting that the right shoulder had only recently become symptomatic. He conceded that the work undertaken by the respondent may have been an aggravating factor, but it was not a dominant factor.
[28] Reply, p 148.
A/Prof Miniter confirmed those views in reports dated 28 April 2020[29] and 22 May 2020.[30] In the latter report, A/Prof Miniter explained that the respondent’s symptoms in his right shoulder did not emerge until many months after he ceased work. He said that the evidence showed that while an injured worker is receiving treatment for the collateral shoulder, there is decreased activity, rather than an increase in such activity, resulting in both shoulders being used less. A/Prof Miniter said that he was happy to provide the medical literature referred to by him, which he said he would forward under separate cover. A/Prof Miniter annexed to his report an article written by Dr Mark Melhorn MD et al in relation to the evaluation of causation of symptoms in the upper and lower limbs opposite to the injured limb, which he considered supported his opinion.[31]
[29] Reply, pp 158–159.
[30] Reply, pp 167–168.
[31] AMA Guides on the Evaluation of Disease and Injury Causation, Second Edition, 1 July 2013, Chapter 33, reply, pp 169–185.
Trinitas Group Vocational Assessment report
In a vocational assessment report dated 6 September 2017 prepared by Ms Natalie Lam, occupational therapist and Ms Stacey Walker, psychologist, the assessors recorded that the respondent advised that Dr Kinzel was awaiting a reasonable recovery before giving consideration to performing surgery on the right shoulder.[32] The assessors also recorded that the respondent complained of symptoms in his right shoulder because he was compensating for his left shoulder.[33] The assessors discussed some of the activities the respondent was performing.
[32] Reply, p 240.
[33] Reply, p 229.
The radiological investigations
An x-ray of the right shoulder dated 11 May 2017 noted “slight superior migration of the humeral head with mild reduction [of the] subacromial space” and an acromial spur.[34] An MRI scan of the right shoulder undertaken on 20 November 2018 reported full thickness supraspinatus and subscapularis tears with moderate supraspinatus muscle atrophy.[35]
[34] Reply, p 22.
[35] Reply, p 59.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator noted the issues requiring determination and provided a detailed summary of the evidence. She remarked that the respondent’s statement was very brief and did not give sufficient detail in relation to the onset of the right shoulder condition, so that relevant evidence had to be gleaned from the medical records.
The Senior Arbitrator observed that the first entry in the various medical records that she was able to identify as a reference to right shoulder symptoms was the entry recorded in the McNamara physiotherapy records on 25 July 2016. She further observed that the Trinitas Group’s vocational assessment made reference to the respondent having advised that Dr Kinzel was waiting for the left shoulder to reasonably recover before contemplating surgery to the right shoulder. The Senior Arbitrator said that this was consistent with the respondent’s evidence. The Senior Arbitrator noted that:
(a) a right shoulder x-ray was undertaken on 11 May 2017, the same day that the respondent consulted Dr Kinzel;
(b) in the vocational assessment report, Ms Lam took a history that the respondent was experiencing right shoulder symptoms as a result of compensating for his left shoulder;
(c) Dr Kinzel noted right shoulder symptoms on 14 September 2017 because the respondent was compensating for his left shoulder;
(d) the respondent reported to Dr Mahfoud on 15 March 2018 that his right shoulder was troubling him because he had been compensating;
(e) on 15 March 2018, Dr Pillemer recorded that the respondent advised that symptoms in the right shoulder developed at the same time as the injury on 15 February 2015 (sic, 5 February 2015), and
(f) the respondent’s own evidence was that he noticed the right shoulder symptoms over time.
The Senior Arbitrator observed that A/Prof Miniter referred to full range of movement of the right shoulder and that the rotator cuff appeared well maintained on examination but did not record an examination of the right shoulder. The Senior Arbitrator further observed that Dr Pillemer examined the respondent 20 days before A/Prof Miniter and took the history that the respondent had very restricted use of his left arm and was trying to do everything with his right arm. The Senior Arbitrator said that Dr Pillemer recorded the range of movement in both arms in a table and found limitation and impairment in the right shoulder. The Senior Arbitrator added that A/Prof Miniter recorded no history of complaints in the right shoulder in his report dated 4 April 2018, when the respondent had made complaints to doctors well before that date. The Senior Arbitrator observed that it was difficult to reconcile the opinion of A/Prof Miniter with that of Dr Pillemer.
The Senior Arbitrator referred to the appellant’s submission that the vocational assessment report disclosed nothing that would establish that the respondent was using his right arm more because of the left arm injury. She said that the report did not refer to the respondent doing less activity than he was when he was working. The Senior Arbitrator indicated that the assessor did not identify what tasks the respondent was doing with his right arm when working between February and July 2015. Further, the assessor did not consider the use of the right arm while the respondent was recovering from the two surgeries to the left shoulder, during which times his left arm was in a sling for six weeks. The Senior Arbitrator further referred to the appellant’s submission that A/Prof Miniter had speculated that there would be rotator cuff pathology in the right shoulder, which was borne out by the subsequent MRI scan report. The Senior Arbitrator also noted the appellant’s submission that A/Prof Miniter was of the view that the appropriate surgery for the condition was a reverse total shoulder replacement, which was ultimately the surgery proposed by Dr Kinzel and recommended by Dr Pillemer, which therefore gave potency to A/Prof Miniter’s opinion.
The Senior Arbitrator concluded that she did not have confidence in A/Prof Miniter’s opinion because he did not record any detail of findings on examination of the right shoulder in his report dated 4 April 2018, when Dr Pillemer had earlier found restriction of movement. The Senior Arbitrator considered that the fact that both Dr Kinzel and Dr Pillemer veered away from a rotator cuff repair in favour of a replacement indicated that they approached the issue with caution and changed their approach on the basis of the radiology.
The Senior Arbitrator referred to the article annexed to A/Prof Miniter’s report dated 22 May 2020. She summarised the points put in the article that most injured people are already on major work restrictions, so they are performing an easier job, or are off work and therefore doing very little at home. The Senior Arbitrator said that in the respondent’s case, he in fact worked after the February incident until he ceased work, the work was heavy work, and the respondent could not lift with his left arm. The Senior Arbitrator observed that A/Prof Miniter did not examine what the respondent was doing with his right arm during the period he had returned to work, or while the left arm was in a sling for six weeks after each surgical procedure. She said that A/Prof Miniter also did not give any consideration to the effect on the right shoulder of ten years of heavy work. The Senior Arbitrator noted that the article suggested that the development of the condition in the uninjured arm is more likely to be related to individual risk factors such as age, sex, or genetics, rather than overuse. She said that the author of the article did not consider whether work duties may have contributed to the development of the disease in the collateral limb, or the type of work being performed by the worker. The Senior Arbitrator observed that the respondent spent many years in manual labour and she described the heavy, constant and repetitive work with the appellant that required him to use both hands.
The Senior Arbitrator said that the article annexed to A/Prof Miniter’s report acknowledged that causation was a complex issue and the steps taken had to be applied to the specific individual’s case. The Senior Arbitrator considered that A/Prof Miniter did not adequately apply those factors to the respondent’s specific circumstances and simply asserted a general proposition.
The Senior Arbitrator concluded that, for the above reasons, she did not accept the appellant’s submissions and did not place weight on A/Prof Miniter’s opinion. The Senior Arbitrator accepted the respondent’s submission that the opinions of Dr Kinzel and Dr Pillemer should be preferred. The Senior Arbitrator added that, in addition, Dr Kinzel had examined the respondent on many occasions and was therefore “best placed” to consider the causal connection between the respondent’s right shoulder condition and his employment and/or his left shoulder injury.
The Senior Arbitrator referred to the appellant’s submission in relation to A/Prof Miniter’s comment that there were no complaints of right shoulder pain made while the respondent was working. She reasoned that Dr Kinzel’s views were not inconsistent with the right shoulder problems being aggravated by the respondent’s employment and provided an explanation as to why there may not have been complaints recorded before 2015. The Senior Arbitrator added that Dr Kinzel’s opinion was supported by that of Dr Pillemer in respect of the heavy nature of the respondent’s work being causative of the conditions in both shoulders and the consequential effect of the left shoulder injury on the right shoulder condition. Further, Dr Pillemer’s concession that it was likely that there would have been pre-existing problems with the rotator cuffs was, in the Senior Arbitrator’s view, “telling.”[36]
[36] Tucker v Southern Meats Pty Ltd [2020] NSWWCC 312 (reasons), [87].
The Senior Arbitrator referred to and quoted from the observations of Kirby P (as his Honour then was) in KooragangCement Pty Ltd v Bates[37] as to the chain of causation of injury and whether the condition “results from” the work injury. The Senior Arbitrator also quoted from the observations of McDougall J in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[38] and concluded that, applying those principles, she was satisfied, on the balance of probabilities, that the symptoms in the right shoulder complained of by the respondent were a consequential condition causally related to the left shoulder injury. The Senior Arbitrator also concluded that she was satisfied that the respondent had established that he had suffered an aggravation and deterioration of a disease in the right shoulder as a result of the nature and conditions of his employment with the appellant over the period of that employment and that the employment was the main contributing factor to the aggravation and deterioration. The Senior Arbitrator based her conclusion on the opinions of Dr Pillemer and Dr Kinzel, noting that A/Prof Miniter did not comment that the changes were more advanced than those of the constitutional condition, did not provide any reason for the advanced degenerative changes and did not adequately address the possibility of the advanced degenerative changes being attributable to the respondent’s lengthy heavy employment.
[37] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[38] [2008] NSWCA 246.
The Senior Arbitrator reiterated that she was satisfied on the balance of probabilities that the physical nature of the respondent’s employment, together with the length of that employment, caused injury to the respondent’s right shoulder in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The Senior Arbitrator proceeded to consider whether the proposed surgery was reasonably necessary. The Senior Arbitrator’s findings and conclusion that the proposed surgery was reasonably necessary and arose as a result of an injury to the right shoulder and as a consequence of the injury to the left shoulder is not challenged in this appeal, other than that it was based on the alleged erroneous conclusion that the respondent suffered that injury and that consequential condition. It is not necessary therefore to summarise this aspect of the Senior Arbitrator’s reasons.
The Certificate of Determination issued on 8 September 2020 records:
“The Commission determines:
1. Pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 the applicant sustained injury to his right shoulder as a result of his employment with the respondent concerning which his employment was the main contributing factor to the aggravation and deterioration of the underlying disease process.
2. The applicant has also sustained a consequential condition in his right shoulder as a result of the injury to the left shoulder sustained in the course of his employment with the respondent.
3. The proposed right reverse shoulder replacement is reasonably necessary treatment as a result of both the consequential condition and injury to the right shoulder.
4. The respondent is to pay for the proposed right reverse shoulder replacement surgery and ancillary treatment pursuant to the applicable workers compensation gazetted rates.”
GROUNDS OF APPEAL
The appellant alleges that the Senior Arbitrator erred:
(a) in fact by concluding that A/Prof Miniter’s examination finding of a full range of movement of the respondent’s right shoulder upon examination on 3 April 2018 was relevant to the weight that his opinion ought to be afforded (Ground One);
(b) in fact by concluding that A/Prof Miniter’s opinion failed to consider what the respondent did with his right arm at a time when he could not use his left arm (Ground Two);
(c) in fact by assigning additional weight to Dr Kinzel’s opinion because she had examined the respondent on many occasions (Ground Three);
(d) by relying upon her conclusion that Dr Kinzel’s “familiarity with the work” assisted her to conclude that the worker had sustained an injury of the right shoulder “in accordance with section 4(b)(ii) of the 1987 Act” (Ground Four), and
(e) by rejecting A/Prof Miniter’s conclusion that any injury to the right shoulder due to the nature and conditions of employment would have been accompanied by complaints of pain (Ground Five).
LEGISLATION
Section 4 of the 1987 Act relevantly defines ‘injury’ as follows:
“4 Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
...”.
SUBMISSIONS
Ground One: The Senior Arbitrator erred in fact by concluding that A/Prof Miniter’s examination finding of a full range of movement of the respondent’s right shoulder upon examination on 3 April 2018 was relevant to the weight that his opinion ought to be afforded
The appellant’s submissions
The appellant concedes that A/Prof Miniter’s clinical finding was different to that of Dr Pillemer recorded a month earlier, but submits that there was no evidence to support the conclusion that the range of movement could not vary over a period of weeks. The appellant says that the fact that Dr Pillemer provided a detailed record of his findings does nothing more than show that he observed such a finding, which was different to the finding made by A/Prof Miniter that he observed no abnormal finding. The appellant submits that in the absence of a direct question being put to the experts, there was no basis upon which the Senior Arbitrator could draw a conclusion as to whether one of the experts was wrong and there was certainly no evidence to support the conclusion that A/Prof Miniter was wrong. The appellant contends that the Senior Arbitrator clearly found that A/Prof Miniter was wrong and, because that conclusion was without basis, the Senior Arbitrator’s conclusion was erroneous.
The appellant submits that the legal consequence of this error was that the Senior Arbitrator formed the view that she did not have confidence in the opinion of A/Prof Miniter, which was an unjustified rejection of his expert opinion and caused her decision to miscarry.
The respondent’s submissions
The respondent points out that the Senior Arbitrator acknowledged that Dr Pillemer set out in a table his findings on examination of both shoulders, whereas A/Prof Miniter did not present any evidence of an examination of the shoulders other than to assert that there was a full range of motion in the right shoulder. The respondent says that A/Prof Miniter also recorded that there was no complaint about the right shoulder until many months after the examination in April 2018, which was incorrect. The respondent refers to the fact that such complaints were documented on 6 September and 14 September 2017.
The respondent submits that the Senior Arbitrator did not err in fact. The respondent says that the Senior Arbitrator examined the medical evidence that was available in relation to the period prior to the medico-legal examinations. The respondent submits that the Senior Arbitrator correctly acknowledged the absence of findings in relation to the right shoulder in A/Prof Miniter’s report and that such an omission made it difficult for the Senior Arbitrator to compare the findings of both experts. The respondent points out that the Senior Arbitrator made that comment in her reasons.
The appellant’s submissions in reply
The appellant asserts that the respondent does not engage with this ground of appeal other than to assert that the Senior Arbitrator was correct, so that it is not necessary for the appellant to respond to the respondent’s submissions.
Ground Two: The Senior Arbitrator erred in fact by concluding that A/Prof Miniter failed to consider what the respondent did with his right arm at the time when the respondent could not use his left arm
The appellant’s submissions
The appellant points out that the Senior Arbitrator did not have the benefit of any direct evidence from the respondent whatsoever about the onset of his right shoulder condition. The appellant explains that for that reason, the Senior Arbitrator was directed to the Trinitas Group Assessment report, which gave some insight into the respondent’s daily activities following his left shoulder injury. The appellant submits that none of those activities appeared to be at all as arduous as the unrestricted labouring duties the respondent performed prior to the injury on 5 February 2015.
The appellant says that there was no doubt that the respondent complained to medical practitioners about the effect of his selected duties on his left shoulder, but did not complain that he was required to undertake more arduous duties with his right arm because of his left arm disability. Further, there was no evidence adduced as to the extent to which the respondent was required to use his right arm while recuperating from the surgeries to his left shoulder or at any other time. The appellant submits that this was evidence which was within the respondent’s knowledge and about which the respondent either failed or chose not to present to the Commission. The appellant submits that this was a lacuna in the evidence which the Senior Arbitrator placed “at the feet of”[39] A/Prof Miniter, which she could not do.
[39] Appellant’s submissions, [11].
The appellant contends that, in the same manner, the Senior Arbitrator criticised A/Prof Miniter because of his failure to consider the reliance by the respondent on his right arm at work between February 2015 and July 2015. The appellant points out that while the respondent appeared to complain that the modified duties provided to him were not compatible with his left shoulder symptoms, the respondent did not describe those duties or the extent to which they caused him to place greater reliance on his right arm. The appellant refers to the medical histories which consisted of a sheep’s hock striking the respondent’s left shoulder, left shoulder pain after pulling a hose, and being required to lift heavy weights. The appellant contends that the Senior Arbitrator’s observations about the absence of evidence in the Trinitas Group Assessment report of tasks the respondent was required to perform identifies the lacuna in the evidence, for which she impermissibly criticised A/Prof Miniter’s methodology and in doing so erred.
The appellant asserts that, in addition to there being no account by the respondent of the reliance on his right arm, neither Dr Pillemer or Dr Kinzel exposed the basis of their relevant assumptions that the respondent’s symptoms resulted from overuse. The respondent says that, at best, Dr Pillemer identified the factor of carrying shopping, which was expressly an activity assumed by A/Prof Miniter and upon which he advanced his medical opinion.
The appellant submits that, by accepting the opinions of Dr Pillemer and Dr Kinzel in that regard, the Senior Arbitrator misdirected herself by failing to assess the expert opinion evidence in accordance with the correct legal test, as identified in the authorities of Dasreef Pty Ltd v Hawchar,[40] Makita (Australia) Pty Ltd v Sprowles[41] and South Western Sydney Area Health Service v Edmonds.[42] The appellant contends that, as a result of that failure to properly assess the expert opinions, the Senior Arbitrator reached an erroneous factual conclusion.
[40] [2010] NSWCA 154 (Hawchar).
[41] [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita).
[42] [2007] NSWCA 16; 4 DDCR 421 (Edmonds).
The respondent’s submissions
The respondent submits that his statement provides details of the heavy lifting and manual handling that he was required to perform in his employment, which was evidence of how his right arm would have been adversely affected after the left shoulder injury. The respondent further submits that he returned to work after the left shoulder injury in duties which were intended to be suitable, but his evidence was that those duties were still heavy in nature.
The respondent contends that A/Prof Miniter failed to take into account the work the respondent performed when the use of his left arm was restricted and also failed to consider the respondent’s work history when he expressed reliance on the literature annexed to his final report.
The respondent asserts that the Senior Arbitrator did not err in her preference for the opinions of Dr Kinzel and Dr Pillemer, in which both experts gave consideration to the respondent’s work history, including the respondent’s reliance on his right arm. The respondent refers to the appellant’s reliance on Makita, Hawchar and Edmonds and submits that both Dr Kinzel and Dr Pillemer outlined the basis for their conclusions, which the Senior Arbitrator found was a proper basis for her decision. The respondent further points to the observation by A/Prof Miniter that the degenerative changes in the respondent’s right shoulder were more advanced than usual. The respondent submits that A/Prof Miniter did not give consideration as to why the changes were more advanced and, as the Senior Arbitrator observed, did not give any consideration to the nature of the work performed by the respondent.
The appellant’s submissions in reply
The appellant says that it concedes that the respondent did not perform his full duties after the left shoulder injury and complained about the effect of those duties on his left shoulder. The appellant reiterates however that the respondent made no complaint about the effect of those duties on his right shoulder.
Ground Three: the Senior Arbitrator erred in fact by assigning additional weight to Dr Kinzel’s opinion because she had examined the respondent on many occasions
The appellant’s submissions
The appellant submits that if it was a correct or logical statement of principle that having frequently seen the respondent placed Dr Kinzel in a better position to assess the connection between the right shoulder symptoms and the respondent’s work or left shoulder injury, then the entire medico-legal process would be rendered meaningless. The appellant asserts that a worker almost always consults and is examined by a treating doctor more frequently than he or she is examined by a qualified expert, and if the Senior Arbitrator was correct to attribute more weight to the treating doctor’s opinion on that basis then the qualified expert’s opinion would be meaningless.
The appellant concedes that there may be occasions when the rapport between a patient and a treating doctor will afford the treating doctor the opportunity to have greater insight or more confidence in the patient’s complaints or the history provided than would be the case following an initial consultation. The appellant contends that this case is not such a case. The appellant contends that A/Prof Miniter put forward a scientific argument that remains unanswered by Dr Kinzel and in that instance, the Senior Arbitrator’s conclusion was not available to her and constitutes an error.
The appellant submits that, in any event, whatever benefit Dr Kinzel may have had, it did not assist her in relation to the respondent’s right shoulder complaints because the first consultation she had with the respondent was not until September 2015. The appellant asserts that at no time did Dr Kinzel caution the respondent about the risk of suffering right shoulder problems because of his left shoulder restrictions.
The respondent’s submissions
The respondent reiterates his submissions that A/Prof Miniter:
(a) did not properly present his examination of the respondent’s right shoulder movements, and
(b) failed to properly consider the respondent’s lengthy work history in manual work as a possible reason for the condition in the right shoulder.
The respondent asserts that the Senior Arbitrator did not err in concluding that Dr Kinzel was in a better position to give consideration to the causal connection between the right shoulder symptoms and the left shoulder injury. The respondent submits that the doctor/patient relationship is an important consideration, and Dr Kinzel had been able to examine the respondent on a number of occasions, so that her opinion ought to have been afforded considerable weight. The respondent adds that the assertion that Dr Kinzel ought to have cautioned the respondent about the risk of acquiring a right shoulder condition is not relevant.
The appellant’s submissions in reply
The appellant relies on its submissions already made. The appellant adds that the fact that Dr Kinzel did not warn the respondent of the prospect of developing symptoms in the right shoulder should lead to the inference that it was either a remote or impossible eventuality.
Ground Four: The Senior Arbitrator erred by relying upon her conclusion that Dr Kinzel’s “familiarity with the work” assisted her to conclude that the respondent had sustained an injury to the right shoulder “in accordance with s 4(b)(ii) of the 1987 Act”
The appellant’s submission
The appellant concedes that the treating surgeon made a correct assumption about the work performed by the respondent and was probably in a position to have a fair appreciation of the type of work the respondent performed, although her reports dd not provide any such detail. The appellant submits that all of the medical opinions proceeded on the assumption that the respondent was engaged in heavy labouring work, which involved use of both arms. The appellant contends that there is nothing to suggest that Dr Kinzel had any greater insight into or appreciation of the respondent’s duties than any of the other experts.
The appellant submits that the Senior Arbitrator did not suggest that A/Prof Miniter had been provided with an incorrect history in relation to the nature of the respondent’s duties. The appellant submits that there was no foundation upon which the Senior Arbitrator could afford greater weight to the opinion of Dr Kinzel. The appellant asserts that this was an erroneous assessment of Dr Kinzel’s opinion and constitutes error which caused the Senior Arbitrator’s decision to miscarry by erroneously rejecting the opinion of A/Prof Miniter.
The respondent’s submissions
The respondent submits that it is obvious from his statement and the histories taken by Dr Kinzel and Dr Pillemer that there was a lengthy history of the respondent performing heavy manual work, which involved the repetitive use of both arms. The respondent contends that Dr Kinzel, as the respondent’s treating specialist, would have a greater understanding of the nature of the respondent’s employment because she had seen the respondent on a number of occasions. The respondent says that it follows that she would have a greater understanding of the nature of the respondent’s work as his condition was developing following the left shoulder injury.
The respondent submits that the Senior Arbitrator gave consideration to all of the medical opinions, including that of A/Prof Miniter and chose to afford weight to the opinion of Dr Kinzel for appropriate reasons. The respondent asserts that the Senior Arbitrator did not err in her reasoning process or in her conclusions.
The appellant’s submissions in reply
The appellant contends that the respondent does not engage with the proposition that the assumptions about the work being performed made by Dr Kinzel were no different to those made by the other medical experts, in particular those made by A/Prof Miniter.
Ground Five: the Senior Arbitrator erred by rejecting A/Prof Miniter’s conclusion that injury to the right shoulder due to the nature and conditions of employment would have been accompanied by complaints of pain
The appellant’s submissions
The appellant submits that neither Dr Kinzel or Dr Pillemer provided a response to A/Prof Miniter’s evidence in this regard. The appellant submits that it is significant that a further opinion was sought from Dr Pillemer in May 2020 and Dr Pillemer did not respond to this aspect of A/Prof Miniter’s evidence. The appellant contends that it is not sufficient to simply observe that the experts’ opinions differed. The appellant asserts that the conflict in those opinions requires an assessment as to why the opinions differ before a conclusion on the balance of probabilities could be reached. The appellant submits that the Senior Arbitrator did not attend to this and thus erred.
The respondent’s submissions
The respondent contends that it is not apparent as to whether this alleged error is said to be an error of fact, law or discretion, but in any event the ground should fail. The respondent submits that both Dr Pillemer and Dr Kinzel properly considered the issue. The respondent says that Dr Kinzel expressed the view that the respondent’s rotator cuff tears were attributable to the manual work he was required to perform, there was a 3 cm tear in the rotator cuff, and she was concerned that the tear had progressed. The respondent extracts the following passages from Dr Kinzel’s reports:
“Heavy lifting especially in the overhead position strains the rotator cuff and eventually leads to tearing.”[43]
“In the course of his treatment, as he had a rather prolonged recovery, his right shoulder deteriorated and he is now suffering from an over-compensation injury which is directly related to the incident.”[44]
[43] Report dated 12 March 2020, ARD, p 313.
[44] Report dated 9 April 2020, ARD, p 315.
The respondent also refers to Dr Pillemer’s consideration of the respondent’s left shoulder condition, where Dr Pillemer observed that:
(a) the left shoulder symptoms were longstanding, but asymptomatic before his employment with the appellant;
(b) the heavy nature of the work performed and the injury in February 2015 either caused or aggravated the left shoulder condition and were substantial contributing factors to the left rotator cuff tear;
(c) the same would apply to the right shoulder, which could also be considered to be a condition consequent upon the restricted left arm function, and
(d) it was likely that the respondent had pre-existing conditions in his rotator cuffs, but those would account for less than one tenth of his impairment.
The respondent submits that the Senior Arbitrator considered all of the evidence before concluding that the respondent had established that he suffered a right shoulder injury in the form of an aggravation and deterioration of a disease as a result of the nature and conditions of employment, and the employment was the main contributing factor to the aggravation and deterioration.
The appellant’s submissions in reply
The appellant again asserts that the respondent has not engaged with the proposition that A/Prof Miniter’s observation regarding contemporaneous complaints of symptoms was not addressed by Dr Kinzel and Dr Pillemer and was therefore not rebutted.
THE RELIEF SOUGHT
The appellant seeks to have the orders made in the Certificate of Determination set aside and an award entered in its favour in lieu thereof. The appellant submits that in the alternative, if the Presidential member were to find error and re-determine the matter, on the basis of its submissions made, the respective issues should be determined in its favour.
The respondent submits that the Senior Arbitrator’s entire Certificate of Determination should be confirmed.
CONSIDERATION
Ground One
The appellant submits the Senior Arbitrator fell into error by concluding that A/Prof Miniter’s finding of a full range of movement in the respondent’s right shoulder was relevant to the weight that ought to be afforded to A/Prof Miniter’s opinion. Firstly, the appellant submits that there was no evidentiary basis upon which a conclusion could be reached that the range of movement could not vary over a period of weeks between medical examinations.
The Senior Arbitrator considered A/Prof Miniter’s finding of a full range of movement in the right shoulder at [70] of her reasons. She referred to the appellant’s submission that the finding was relevant. The Senior Arbitrator noted that A/Prof Miniter made no reference to an examination of the right shoulder in his findings in his report dated 4 April 2018. She noted however, that he recorded a full range of motion in the context of providing an opinion as to whether there was a consequential condition in the right shoulder. In that report, A/Prof Miniter opined that:
“There was no evidence of consequential injury to the right shoulder. [The respondent] had a full range of motion of the right shoulder…”.[45]
[45] Report dated 4 April 18, reply, p 29.
It is clear from this passage that A/Prof Miniter took into account that the respondent had a full range of motion of the right shoulder when he was considering whether the respondent suffered from a consequential condition in that shoulder, which was an issue the Senior Arbitrator was required to determine. The Senior Arbitrator provided reasons as to why she preferred the evidence from Dr Pillemer as to the respondent’s right shoulder limitations. Her reasoning was that there was no record in A/Prof Miniter’s report of the actual right shoulder examination, whereas Dr Pillemer’s observations were recorded in detail. It is implicit in her conclusion that the evidence from Dr Pillemer showed that the respondent did have limitations of movement, the fact of which lent support to the presence of a symptomatic condition in the right shoulder, which was one step in the process of determining the issue before her.
The appellant asserts that the conflict between the findings recorded by Dr Pillemer and A/Prof Miniter should have been put to those experts in order for those experts to explain their findings. The appellant says that, without that having occurred, the Senior Arbitrator could not infer that one of the experts was wrong. Dr Pillemer clearly explained his findings on examination in the table referred to by the Senior Arbitrator. A/Prof Miniter provided no explanation for his finding and only made reference to it as a basis for his opinion that the respondent did not suffer from a consequential condition in the right shoulder.
The Senior Arbitrator found that that evidence was inadequate to support A/Prof Miniter’s conclusion. If an expert’s observations require clarification, it is a matter for the party relying on that opinion to adduce sufficient evidence from that expert to explain his or her observations and conclusions. In circumstances where that does not occur, it is open to the decision maker to find that evidence unsatisfactory and prefer a different view.
It is clear from the passage cited at [92] above that the absence of restriction in the range of movement in the respondent’s right shoulder initially formed the basis for A/Prof Miniter’s opinion that the respondent did not suffer from a consequential condition in his right shoulder. The fact that other experts did find such a restriction was a matter that weighed against the acceptance of this opinion expressed by A/Prof Miniter. Notably, A/Prof Miniter provided detail of his examination of the right shoulder in his final report and did find such a restriction. Thus, there was no error in the Senior Arbitrator rejecting A/Prof Miniter’s opinion that the respondent did not suffer from a consequential condition because there was no restriction of movement in the right shoulder, a clinical finding that formed the basis of his opinion.
It follows that Ground One of the appeal fails.
Ground Two
The appellant alleges that the Senior Arbitrator reached an erroneous conclusion by preferring the opinions of Dr Kinzel and Dr Pillemer on the basis that A/Prof Miniter failed to take into consideration what activities the respondent was doing with his right arm while he could not use his left arm. The appellant relies on:
(a) the absence of direct evidence in statement form from the respondent about those activities;
(b) the tasks described in the Trinitas Group Assessment report performed by the respondent following the left shoulder injury, which the appellant describes as not nearly as arduous as the respondent’s pre-injury duties;
(c) the absence of complaints about the effect of those duties on the right shoulder, in the context of the respondent having made complaints about the worsening of the left shoulder symptoms when performing that work, and
(d) the absence of evidence of the respondent overusing his right arm, in particular while recuperating from the left shoulder surgeries, about which the respondent could have given evidence, but did not.
The appellant argues that this lacuna in the evidence meant that the Senior Arbitrator could not reject or place less weight on the opinion of A/Prof Miniter because he failed to take these matters into account. Further, the appellant maintains that neither Dr Pillemer nor Dr Kinzel exposed the basis for their assumptions that overuse of the right arm was causative of the right shoulder symptoms.
The respondent submits that he gave evidence about the heavy nature of the work he performed following return to work after the left shoulder injury. The respondent asserts that both Dr Pillemer and Dr Kinzel gave consideration to the respondent’s work history, including the respondent’s reliance on his right arm.
It is thus necessary to consider whether there was a proper basis available to the Senior Arbitrator to prefer the opinions of the respondent’s experts over that of A/Prof Miniter. The Senior Arbitrator’s task in assessing the evidence was made somewhat difficult because of the absence of the evidence identified by the appellant, summarised at [98] above. The Senior Arbitrator turned to the medical evidence, and the report from the Trinitas Group Assessment, in order to glean evidence of the facts she was required to determine. The Senior Arbitrator was entitled to take that approach and rely upon the histories recorded in the medical evidence. The history taken by medical experts is evidence of the facts.[46]
[46] Guthrie v Spence [2009] NSWCA 369, [75]; Smith v Parkes Shire Council [2010] NSWWCCPD 130, [96].
The history recorded by A/Prof Miniter in his first report was that the respondent performed heavy work for the appellant. There was no reference to the development of right shoulder symptoms. The only relevant fact recorded in that report was that the respondent’s right shoulder had a full range of movement. In an addendum to that report, A/Prof Miniter opined that, on that basis, there was no whole person impairment of the right upper limb. In a further addendum of the same date, A/Prof Miniter opined that there was no evidence of a consequential “injury” to the right shoulder. He maintained that opinion in his short report dated 3 July 2018. In his report dated 30 August 2018, A/Prof Miniter advised that in his view, the respondent suffered from a constitutional degenerative disease in his left shoulder, a frank injury in the course of his employment, and there could have been some contribution to the degenerative process by the nature and conditions of the respondent’s employment. He added that the appellant ought not to accept liability for the right shoulder condition because:
(a) the respondent had only recently complained of right shoulder symptoms;
(b) the onset of the symptoms was after the respondent had ceased his employment;
(c) he did not contemporaneously complain of right shoulder problems;
(d) the literature annexed to his report rebuffed the concept of a consequential “injury,” and
(e) there had been no frank injury to the right shoulder.
A/Prof Miniter re-examined the respondent on 19 March 2019 and provided a report dated 20 March 2019 in which he recorded his findings on examination of the right shoulder. He noted the history of onset of right shoulder symptoms which had troubled the respondent for “a long period of time.” He maintained his view in relation to liability for the right shoulder, despite finding some restrictions on examination.
The history recorded by Dr Pillemer was that:
(a) the respondent experienced problems with his right shoulder at about the same time as the injury to the left shoulder on 15 February 2015 (sic, 5 February 2015), but the treating doctors had focussed on treatment for the left shoulder;
(b) there were two further incidents after February 2015, when the respondent returned to work, in which the respondent was struck by a sheep’s foot and was pulling a heavy hose, and
(c) the respondent complained of significant restrictions in using his left shoulder, had difficulty with self-care, and was trying to do everything with his right hand, including carrying the shopping.
Dr Pillemer opined that the nature of the respondent’s work was very heavy at times and the nature and conditions of his employment were a substantial contributing factor to the aggravation of an asymptomatic degenerative condition in both shoulders. Dr Pillemer observed that the right shoulder symptoms could also be considered a consequential “injury,” suffered because of the restrictions of left shoulder function. As noted earlier, Dr Pillemer found restricted range of movement and permanent impairment in both shoulders.
While there was no direct evidence from the respondent as to a greater reliance being placed on his right arm, the fact that he was experiencing restrictions in the use of his left arm was well recorded by the respondent’s treatment providers, the respondent’s qualified expert and the assessment conducted by the Trinitas Group. Further, there was evidence recorded by the physiotherapist, Ms McNamara, that the respondent complained of right shoulder symptoms as early as 25 July 2016. On 12 September 2016, Dr Mahfoud described the respondent’s left shoulder as having “limited” range of movement. On 14 September 2017, Dr Kinzel noted that the respondent complained of right shoulder symptoms because he was compensating for his left shoulder limitations. Dr Kinzel subsequently opined that the respondent had suffered injury to his right shoulder because of the heavy nature of his work and also because, following the surgery, the respondent was compensating for his left shoulder limitations. Dr Kinzel was well aware of the respondent’s left shoulder deterioration and limitations, having consulted with the respondent from September 2015, performed surgery in early 2016 and April 2017, and having reviewed the respondent over that period. She was thus well placed to form the view that the respondent was using his right arm to compensate for those limitations and accordingly developed a consequential condition in the right shoulder.
The appellant maintains that the duties the respondent undertook after the left shoulder injury, as described in the Trinitas Group Assessment report, were not at all arduous. The report was dated 6 September 2017 and made observations about some of the activities the respondent was undertaking at that time, namely sweeping, washing up and putting on shirts and jackets. The respondent was no longer able to mow the lawn. The Senior Arbitrator dealt with this submission at [74] of her reasons, in which she observed:
“However, the author of this report did not evaluate what tasks Mr Tucker did at work after he injured his left shoulder and what tasks he used his right arm to perform in the period from February 2015 to July 2015, when he stopped working. Also, the author of the report did not consider the situation regarding usage of the right arm after Mr Tucker’s two surgical procedures when he had his left shoulder in a sling for six weeks each time and its state as the shoulder was recovering from each of the surgeries.”
Those reasons were sufficient for the Senior Arbitrator to discount that evidence. The evidence relied upon is not evidence of the respondent’s activities at the time of onset of the right shoulder symptoms which were evident as early as July 2016 and noted by Dr Mahfoud in September 2016. The submission is not persuasive of error on the part of the Senior Arbitrator.
The restriction of function of the left shoulder was well documented throughout the medical evidence. Overall, that evidence was evidence of the fact that the respondent suffered limitation of movement of his left arm, placed reliance on his right arm and, as a result, developed symptoms in his right shoulder. The respondent’s case was therefore clearly identified, and it was incumbent upon the appellant to adduce evidence to address each element of the case.
A/Prof Miniter was of the view, in part, that liability should not be accepted because there had been no frank injury to the right shoulder and no contemporaneous complaints of pain in the right shoulder.
The absence of there being a frank injury to the right shoulder is not relevant to the question of whether the right shoulder symptoms were as a consequence of the left shoulder injury. The contemporaneity of complaints is not always determinative of whether a worker suffered injury and is less determinative in relation to an allegation of a condition consequent upon an accepted work-related injury. As Kirby P observed in Kooragang:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted … As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”[47]
[47] Kooragang, 463–464.
It is apparent from the clinical notes of Dr Mahfoud and the McNamara Physiotherapy notes that the onset of the right shoulder symptoms occurred following a deterioration of the left shoulder condition noted on 22 January 2016, the respondent having undergone surgery shortly thereafter, and the respondent wearing a sling following the surgery in March 2016. The respondent underwent further surgery in April 2017, following which he continued to complain of right shoulder symptoms, which his treating surgeon and his general practitioner attributed to him compensating for the left shoulder injury.
None of this relevant evidence was addressed by A/Prof Miniter. It follows that it was open to the Senior Arbitrator to take that into account in assessing the weight to be afforded to the opinion of A/Prof Miniter.
The appellant further asserts under this ground of appeal that the Senior Arbitrator misdirected herself by not applying the correct legal test when accepting the opinions of Dr Pillemer and Dr Kinzel. The appellant relies upon the Court of Appeal authorities of Hawchar, Makita and Edmonds. Those authorities establish that, although the rules of evidence do not apply in the Commission, for the evidence to be accepted, it should be logical and probative, relevant to the fact in issue, and not based on speculation or unsubstantiated assumptions. The basis of an expert’s opinion must be explained. It is a question of weight, and not admissibility of the medical expert’s opinion that does not conform with that standard.
I have discussed the essence of Dr Kinzel’s evidence at [106] above. It is apparent that Dr Kinzel was aware of the heavy nature of the respondent’s employment and the significant limitations in the respondent’s use of his left shoulder. She also had the history that the respondent was using his right arm to compensate for the left shoulder. In the context of that knowledge, her opinion that the right shoulder symptoms resulted from the heavy nature of the respondent’s employment and the use of the right arm to compensate for the left shoulder limitations was a logical conclusion.
I have summarised the reasons and conclusions reached by Dr Pillemer at [104]–[105] above. Dr Pillemer took a history of the (at times) heavy nature of the respondent’s duties and discussed what he referred to as significant restrictions in the respondent’s use of the left shoulder. Dr Pillemer also recorded that the respondent experienced difficulty with self-care and was trying to do everything with his right hand, including carrying the shopping. That factual evidence was not disturbed by any evidence to the contrary and formed a proper basis upon which Dr Pillemer could arrive at his conclusion that the right shoulder symptoms resulted from the left shoulder restrictions and the undisputed heavy nature of the respondent’s employment.
The Senior Arbitrator conducted a proper analysis of the expert medical evidence and did not fail to apply the correct test. The opinions expressed by both Dr Pillemer and Dr Kinzel were based upon facts that were consistent with the available evidence. The opinions were logical and probative, and it was open to the Senior Arbitrator to accept those opinions and to give preference to them over the opinion of A/Prof Miniter.
The allegation that the Senior Arbitrator erred by concluding that A/Prof Miniter failed to take the identified matters into account is not made out and this ground of appeal fails.
Grounds Three and Four
The appellant asserts error on the part of the Senior Arbitrator by affording greater weight to the evidence of Dr Kinzel because she was the respondent’s treating doctor and saw the respondent more frequently than A/Prof Miniter. This criticism is raised in respect of Dr Kinzel’s opinion that the right shoulder symptoms arose as a consequence of the restrictions in the respondent’s ability to use his left shoulder (Ground Three) and that the right shoulder was injured as a result of the nature and conditions of employment (Ground Four).
The Senior Arbitrator in this case considered that Dr Kinzel was in a better position than A/Prof Miniter to be aware of the respondent’s employment duties, his complaints of restriction of movement in the left shoulder and the onset of right shoulder symptoms. The Senior Arbitrator’s conclusion is supported by the numerous reports provided by Dr Kinzel that detailed the respondent’s difficulties, the nature of the work performed by the respondent and the treatment regime provided to the respondent. The Senior Arbitrator’s conclusion is also supported by the inconsistent history recorded by A/Prof Miniter in relation to the date of onset of the right shoulder symptoms. That history was inconsistent with the evidence of Dr Kinzel, Dr Mahfoud, the x-ray of the right shoulder undertaken on 11 May 2017, the McNamara Physiotherapy records and the history of right shoulder symptoms reported in the Trinitas Group Assessment report dated 6 September 2017.
I agree with the respondent’s submissions that the asserted fact that Dr Kinzel did not caution the worker that there was a possibility of symptoms occurring in the right shoulder (which fact was not established by any evidence) is not relevant to the issues for determination.
The respondent submits that a worker is almost invariably examined by a treating doctor more frequently than by a medico-legal expert, so that if the treating doctor’s evidence is to be preferred on that basis, an opinion from a qualified expert would be meaningless. I do not accept that submission and I do not accept that the Senior Arbitrator erred in that regard. It is logical that a treating medical practitioner who examines and treats a patient on a number of occasions has more opportunity to obtain an accurate history and record complaints than does a qualified expert. That does not always mean that the treating doctor’s opinion will be accepted over that of the qualified expert, but it is one factor that a decision maker can take into account. The role of the decision maker is to weigh the evidence of each expert and provide reasons for affording greater weight to the opinion of one expert over another. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of an arbitrator, unless it can be said that the finding was so against the weight of the evidence that some error must have been involved.[48] It cannot be said that the Senior Arbitrator’s conclusion as to the weight to be afforded to the opinion of Dr Kinzel was so against the weight of the evidence that it was wrong. Dr Kinzel’s evidence was consistent with all of the medical experts other than A/Prof Miniter.
[48] Shellharbour City Council v Rigby [2006] NSWCA 308.
It follows that Grounds Three and Four of this appeal fail.
Ground Five
The appellant asserts that the Senior Arbitrator erred by rejecting A/Prof Miniter’s conclusion that if the respondent injured his right shoulder as a result of the nature and conditions of his employment, the injury would have been accompanied by contemporaneous complaints of pain. The appellant contends that this conclusion was not addressed by either Dr Pillemer or Dr Kinzel and the Senior Arbitrator did not assess why the expert opinions did not address that point.
The Senior Arbitrator provided a thorough review of the evidence from Dr Kinzel,[49] Dr Pillemer[50] and A/Prof Miniter,[51] as well as the relevant clinical records from Dr Mahfoud[52] and McNamara Physiotherapy.[53] The Senior Arbitrator noted that it was difficult to reconcile the conflict in the expert opinions before she embarked upon an analysis of those opinions. The Senior Arbitrator provided reasons as to why she found the opinion of A/Prof Miniter unpersuasive. She referred to the appellant’s reliance upon A/Prof Miniter’s observation that if there had been an injury to the right shoulder as a result of the heavy work, symptoms would have arisen during the respondent’s working life.[54] The Senior Arbitrator dealt with this observation at [85] of her reasons, in which she said:
“However, Dr Kinzel has expressed the view that his rotator cuff tears are solely due to the manual work he had to perform over the years. She explains that ‘heavy lifting especially in the overhead position strains the rotator cuff and eventually leads to tearing.’ Dr Kinzel advised that Mr Tucker had a 3 cm tear on the right side over 18 months earlier and she was concerned there had been further progression of the same. She also states ‘in the course of his treatment, as he had a rather prolonged recovery, his right shoulder deteriorated and he is now suffering from an over compensation injury which is directly related to the incident he initially sustained to his left shoulder’.[55] I do not regard these propositions as inconsistent and provide an explanation as to why there may not have been complaints before 2015, but that nonetheless the development of the pathology in the right shoulder has been aggravated by his employment.”
[49] Reasons, [32]–[36].
[50] Reasons, [51]–[54].
[51] Reasons, [55]–[57].
[52] Reasons, [29]–[31].
[53] Reasons, [47]–[48].
[54] Reasons, [73].
[55] ARD, p 315.
The Senior Arbitrator added that Dr Kinzel’s opinion was supported by that of Dr Pillemer. She referred to and quoted from the judgment of Kirby P in Kooragang, relevantly reproduced in part at [111] above, and concluded that she was satisfied that the respondent’s symptoms in the right shoulder were causally related to the left shoulder symptoms and his employment. Kooragang makes it clear that the proximity of complaints or the passage of time between the injury and the onset of symptoms is not, of itself, determinative of the cause of injury. The Senior Arbitrator’s approach was correct.
The appellant’s allegation of error on the part of the Senior Arbitrator appears to rest on the proposition that A/Prof Miniter’s conclusion that there would have been a contemporaneous complaint remained unanswered by Dr Pillemer or Dr Kinzel. If the appellant’s submission is that because that conclusion was not contradicted, the Senior Arbitrator was bound to accept it, the submission is wrong. A court, or in this case the Commission, is not obliged to take the opinion of an expert as conclusive even though there is no expert evidence to contradict it.[56] The Senior Arbitrator took the evidence and the appellant’s submission about that evidence and acted upon it. Her conclusion was not unreasonable or perverse.[57]
[56] Makita, [87].
[57] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.
That is sufficient to dispense with this allegation of error and there is no other challenge to the Senior Arbitrator’s reasons for determining that she did not accept the respondent’s submission about that evidence or A/Prof Miniter’s conclusion.
It follows that this ground of appeal also fails.
CONCLUSION
An appeal from a decision of an Arbitrator to a Presidential member is limited to the identification of error of either fact, law or discretion and to the correction of such error.[58] The appellant has failed to establish any relevant error on the part of the Arbitrator. The Senior Arbitrator’s Certificate of Determination is therefore confirmed.
[58] Section 352(5) of the 1998 Act.
DECISION
The Senior Arbitrator’s Certificate of Determination dated 8 September 2020 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
14 January 2021
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