Srirudrakantha v Homebush Out of School Hours
[2020] NSWWCCPD 45
•21 July 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Srirudrakantha v Homebush Out of School Hours [2020] NSWWCCPD 45 |
| APPELLANT: | Kanthi Srirudrakantha |
| RESPONDENT: | Homebush Out of School Hours |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-6591/19 |
| ARBITRATOR: | Mr P Sweeney |
| DATE OF ARBITRATOR’S DECISION: | 2 March 2020 |
| DATE OF APPEAL DECISION: | 21 July 2020 |
| SUBJECT MATTER OF DECISION: | Whether error in determining that the effects of the exacerbation of pre-existing arthritis had ceased – Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 applied; adequacy of reasons – s 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 – Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, NSW Police Force v Hahn [2017] NSWWCCPD 51 discussed |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr C Tanner, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr G Barter, counsel | |
| Moray & Agnew Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 2 March 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
Ms Kanthi Srirudrakantha (the appellant) was employed by Homebush Out of School Hours (the respondent) as a carer of school children aged between 6 and 12 years old during before and after school hours.
The appellant alleged that on 23 August 2017, while supervising children in the playground, she was tripped by a student and fell onto her back. The appellant alleged that she suffered injury to her right shoulder and right knee. The appellant further alleged that as a result of the fall, she also suffered injury to her lumbar and cervical spines, or alternatively aggravated, exacerbated, accelerated or deteriorated a pre-existing asymptomatic disease process in the lumbar and cervical spines. The appellant further alleged that, as a consequence of the injuries, she relied more heavily on her left shoulder and left knee, so that they also became symptomatic, and her right knee injury also caused symptoms in her back.
The respondent initially accepted liability for the injuries to the right shoulder and right knee. In a notice dated 29 April 2019, issued by the respondent pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act),[1] the respondent disputed the alleged injuries to the cervical spine, lumbar spine, left shoulder and left knee. The respondent also denied further liability for the right shoulder and right knee on the basis that the appellant’s right shoulder and right knee injuries had resolved. The respondent determined that the appellant no longer suffered an incapacity for work or required treatment in respect of the right shoulder and right knee.
[1] Reply to Application to Resolve a Dispute (Reply), pp 1–4.
The appellant commenced proceedings in the Commission. She claimed weekly payments of compensation on an ongoing basis from 29 April 2019, alleging her pre-injury average weekly earnings figure was $364.34 per week and asserting she had no capacity for work. The appellant also claimed an amount of $5,643.54 in respect of incurred treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The matter proceeded to arbitration on 27 February 2020. The Arbitrator delivered oral reasons for his determination on 2 March 2020 and issued a Certificate of Determination on that date in the following terms:
“The determination of the Commission in this matter is as follows:
1.The applicant suffered injury to her right shoulder namely aggravation of pre-existing arthritis and right knee namely an exacerbation of pre-existing osteoarthritis arising out of and in the course of her employment on 23 August 2017.
2.The applicant has not proven that the effects of the injury to her right knee persisted beyond 2017.
3.The applicant has not established that she suffered injury to her neck or back in that incident.
4.The applicant has not established that she suffered consequential injuries to her back, or left knee in the subject incident.
5.No finding in relation to the alleged consequential condition of the applicant’s left shoulder.
6.The applicant has not established that she has an entitlement to weekly compensation after 28 April 2019 as on the evidence before the commission she is not precluded by reason injury to her right shoulder (or any condition of her left shoulder) from earning her preinjury average weekly earnings.
7.Respondent to pay the applicant’s hospital and medical expenses pursuant to section 60 in respect of the applicant’s right shoulder.”
The appellant appeals that decision.
ON THE PAPERS
Section 354(6) of 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 are content for the appeal to be determined on the basis of the documents and the written submissions.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to s 352(3) and (4) of the 1998 Act have been met.
THE EVIDENCE
The appellant’s statement evidence
The appellant provided two statements. The first was a short statement dated 13 August 2019.[2] The appellant described the injury on 23 August 2017. She said that she was supervising children in the playground. She was involved in playing netball with some of the children and jumped to catch a ball when a child, who was playing cricket, also jumped up to catch the cricket ball and collided with her. The appellant said she fell to the ground, landing on her back.
[2] Application to Resolve a Dispute (ARD), pp 1–2.
The appellant said that she consulted her general practitioner, Dr A Bala, from the Homebush Medical Centre, who referred her for radiological investigations. The appellant reported that, eventually, on 13 November 2017, Dr Doron Sher, orthopaedic surgeon, performed surgery on her right shoulder. The appellant indicated that she had time off work after the surgery and in March 2018, despite the pain, returned to work three days per week on suitable duties because she was struggling financially.
The appellant said that she continued to receive physiotherapy and rehabilitation after her return to work. She reported continuing pain in her right shoulder, left shoulder, neck, lumbar spine and both knees “ever since.” The appellant stated that she remained incapacitated for employment and her movement was heavily restricted. She complained of constant pain with difficulty sitting in a chair for more than a few minutes. The appellant reported having to constantly reposition herself, experiencing significant restrictions when walking and standing, pain and weakness in the hands with difficulties holding objects. She stated that this pain was as a result of the work injuries.
The appellant’s second statement was dated 18 October 2019.[3] She noted that there was no issue that she injured her right shoulder and right knee in the incident on 23 August 2017, which she described as significant injuries.
[3] ARD, pp 3–6.
The appellant stated that immediately following the injury, she experienced pain in the right shoulder, right knee, lumbar spine and cervical spine. The appellant described the mechanism of the fall, in which she landed flat on her back on concrete. The appellant said that there was no doubt that she had injured her lumbar spine and cervical spine because before the incident, she had no issues with her neck or back, and after the incident she was in constant pain in those areas.
The appellant said that when she consulted her doctors, her main concern was her right shoulder (which required surgery) and knee, which were affecting her the most. She asserted that she was also certainly experiencing pain in her neck and back.
The appellant stated that, following the surgery to her right shoulder performed by Dr Sher on 13 November 2017, her right arm was in a sling for two months. She said that during this time, she was required to rely heavily on her left shoulder, which she continues to do. The appellant said she was also walking with altered gait because of her right knee injury.
The appellant described that when she lay in bed, she would lie on her left shoulder, but since she has been relying on the left shoulder more, she noticed that her left shoulder had become painful. The appellant attributed the pain to the fact that she was primarily lying on her left shoulder in order to spare the right shoulder. She said she now primarily sleeps on her back, which causes further issues with her back together with neck pain.
The appellant described the many household tasks and the shopping she had to perform relying on her left arm, which caused her pain in the left shoulder that radiated to the elbow. The appellant reported also having difficulties in the shower and washing and drying her hair.
The appellant confirmed that, at first, she did not pay a lot of attention to her neck and back pain because of the overwhelming pain in the right shoulder and right knee. The appellant complained of a deterioration in symptoms in the neck and back despite ceasing work. The appellant referred to the lack of any reference to her neck and back symptoms in the clinical notes of Dr Bala and said that no proper investigations were undertaken by Dr Bala. The appellant said that she mentioned her back and neck problems to Dr Sher. She added that she began to realise that she was not receiving the correct treatment from Dr Bala. She said she then consulted Dr Eric Lim, general practitioner, who properly investigated her complaints. She said she also mentioned her back and neck issues to Dr Eugene Gehr, orthopaedic surgeon.
The appellant referred to a fundraising dinner dance held by St Vincent’s Girls High School on 10 November 2018. She said that, at that stage, she was still working, but since that event her injuries had deteriorated. The appellant said that throughout that night she was sitting in a seat and was heavily medicated. She advised that she was keen to help raise money for the school and for a short period was required to dance on stage, which only took a few minutes but, for the rest of the time on the stage, she was sitting on a chair. The appellant said that during the evening, her colleagues were aware that she was in pain, would enquire about her well-being and bring her food and drinks. The appellant claimed that she thought performing the dance would be therapeutic for her.
The appellant maintained that, over time, she was walking with a limp because of her right knee, causing her to place added pressure on her left knee when walking and standing. She stated that this resulted in left knee pain. The appellant added that she was consulting Dr Bhisham Singh, orthopaedic surgeon, in respect of her neck and back symptoms, and continued to consult her general practitioners, Dr Lim and Dr Sebastian Calvache-Rubio.
The appellant complained of ongoing difficulties when walking, sitting and standing.
The Homebush Medical Centre Notes
The Homebush Medical Centre clinical notes were in evidence.[4] The notes spanned the period from 2006 to 19 July 2019. The past medical history recorded, among other things, an active history of osteoarthritis in the right knee (2006) and an inactive history of subacromial bursitis (2014) without specifying whether that was in the left or right shoulder. Relevantly, the clinical notes disclosed:
(a) complaints to Dr R Krishna of right knee pain on 27 July 2006, 15 August 2006 and 5 September 2006;
(b) a complaint of knee pain requiring physiotherapy on 9 May 2014, and
(c) severe pain in and inability to move the right shoulder as well as pain in the right knee on 19 May 2017, both requiring x-rays.
[4] ARD, pp 52–84.
On 24 August 2017, the appellant attended that practice and consulted Dr Bala. Dr Bala noted the injury occurring at school the day before and recorded that the appellant fell, injuring her right shoulder. On 28 August 2017, the appellant again attended Dr Bala in respect of right shoulder pain and Dr Bala noted the appellant was also complaining of right knee pain. The appellant again complained of right shoulder pain to Dr Bala on 16 September and 20 September 2017. On 25 September 2017, Dr Bala discussed the results of an MRI scan of the right shoulder with the appellant as well as the suggestion made by Dr Sher in respect of surgery to the right shoulder.
The appellant thereafter regularly attended the practice with varying complaints recorded that were not related to the alleged injuries, although some of those entries were extremely brief. There was, however, a case conference with Dr Bala and Mr Ernie Christensen, the rehabilitation co-ordinator, on 20 February 2018 and a consultation on 26 March 2018, when Dr Kala Balakrishnan recorded the appellant’s complaints of right shoulder discomfort and left knee pain.
On 20 July 2018, the appellant attended Dr Bala complaining of pain down the right leg for the past six months. Dr Bala noted there was no back pain but queried whether the symptoms indicated radicular pain. On 23 November 2018, the appellant attended Dr Balakrishnan, complaining of “lower back pain on & off last 5 to 6 months.”[5] The appellant then attended Dr Bala three days later, who noted that the appellant still had pain in the right shoulder and complained of lumbar back ache which was said to be “since the fall.”[6]
[5] ARD, p 58.
[6] ARD, p 57.
The appellant attended Dr Balakrishnan on 19 December 2018 complaining of body aches, referring to the right shoulder, neck, hip, chest and back.
The appellant first complained of neck pain on 19 December 2018 and, on 1 February 2019, discussed x-rays undertaken of both knees with Dr Bala. Thereafter, the appellant attended the practice complaining of pain in various areas of the body, including the right shoulder, neck, lumbar spine and both knees. There was no recorded complaint of left shoulder issues.
The respondent’s injury questionnaire
On 11 January 2019, Dr Bala responded to an enquiry from the respondent in respect of the appellant’s allegation of injury to the left knee, lumbar and cervical spine.[7] Dr Bala indicated (by circling “yes”) that the symptoms in those areas were related to the injury, adding that the appellant had stated she had pain in both knees, the lumbar spine, cervical spine and left knee since the injury.
[7] ARD, pp 32–33.
Dr Doron Sher
Dr Sher provided a number of reports directed to Dr Bala. On 25 September 2017, Dr Sher reported to Dr Bala following the appellant’s initial consultation. Dr Sher recorded that the appellant injured her right shoulder and “flared up her right knee” in the injury. Dr Sher discussed the result of the MRI scan and the risks and benefits of surgery.[8] Dr Sher continued to report to Dr Bala in relation to the surgery performed and the appellant’s progress.
[8] ARD, p 176.
In subsequent reports dated 16 February 2018 and 25 May 2018, Dr Sher increased the certification of the appellant’s capacity for work in the context of her right shoulder condition.[9]
[9] ARD, pp 218–219.
On 28 November 2018, Dr Sher noted that the appellant was complaining of pain in her neck, left hip and right knee, which she related to the injury, but had no pain in the right shoulder. Dr Sher referred the appellant to Dr Paul Mason, sports medicine physician, for treatment in respect of the appellant’s neck, left hip and right knee complaints and certified the appellant as fit for unrestricted use of the right arm, but avoiding lifting more than 2–3 kilograms overhead.[10]
[10] ARD, p 165.
Dr Paul Mason
Dr Mason reported to Dr Bala on 7 December 2018.[11] Dr Mason noted the injury in 2017 resulting in the right shoulder pathology and recorded a complaint of multiple joint pain following the injury. He noted a past history which included low back pain, cervical pain and pain in both knees. Dr Mason noted the onset of lumbar pain nine months previously. Dr Mason considered that there were multiple possible causes for her symptoms, including her complex non-work related medical conditions. Dr Mason again reported to Dr Bala in a report dated 4 February 2019.[12] Dr Mason offered the brief opinion that it was very possible the injury causing the right shoulder pathology precipitated cervical symptoms, on a background of longstanding degenerative changes.
[11] ARD, pp 203–204.
[12] ARD, p 205.
Mr Tim Neville, physiotherapist
The appellant attended Mr Neville for physiotherapy treatment in respect of her right shoulder between January 2018 and July 2018. Relevantly, on 4 July 2018, Mr Neville noted complaints of a history of pain in the right leg, knee and foot for a period of three months, which Mr Neville considered was highly likely to be sciatic symptoms.[13]
[13] ARD, p 225.
Dr Eric Lim, general practitioner
Dr Lim became the appellant’s nominated treating doctor following a consultation on 7 May 2019. Dr Lim provided a report dated 21 October 2019.[14] Dr Lim recorded a history of the appellant having fallen on 23 August 2017, landing on her back and shoulder. Dr Lim referred to injuries to the right shoulder, neck and back, and pain in bilateral knees as a result of overcompensation. The past history recorded by Dr Lim did not refer to any prior symptoms in the injured areas.
[14] ARD, pp 46–48.
Certificates of capacity
A number of certificates of capacity were in evidence, some of which were almost illegible. It is sufficient to record that:
(a) a Workcover certificate of capacity provided by Dr Bala dated 24 August 2017 provided a diagnosis of injury to the right shoulder and arm;[15]
(b) further Workcover certificates of capacity issued by Dr Bala dated 17 April 2018 and 5 June 2018 described the injury as “Injury to the Right arm and shoulder with pain R knee since the fall,”[16] and certified that the appellant had some restrictions in her capacity to work;
(c) a Workcover certificate of capacity issued by Dr Bala on 13 July 2018 certified the appellant as being fit for pre-injury duties,[17] and
(d) between 7 May 2019 and 18 July 2019, in further certificates of capacity, Dr Lim and Dr Sebastian Calvache-Rubio described the injuries as injury to the right shoulder, neck and back “with bilateral knee pain from overcompensation.” The appellant was certified as having no capacity for work.[18]
[15] ARD, pp 229–231.
[16] ARD, pp 232–243.
[17] Reply, pp 30–32.
[18] ARD, pp 244–261.
The relevant radiological investigations
A right knee x-ray dated 27 July 2006 showed degenerative changes consistent with osteoarthritis.[19] The x-ray report dated 29 August 2017 reported as follows:
“The alignment is unremarkable. There is no significant joint effusion. Small intra-articular body is noted. No acute fracture demonstrated.
There is moderate/severe patellofemoral joint space narrowing at the lateral facet with moderate osteophyte formation in keeping with osteoarthritis. The subchondral lucencies at the lateral trochlear facet is long standing and similar to previous x-rays from 2013.
While the medial and lateral compartment joint spaces are preserved, there is osteophyte formation.”[20]
[19] ARD, p 189.
[20] ARD, p 197.
An x-ray and ultrasound of the right shoulder were performed on 24 August 2017. The report confirmed that there was a full thickness tear of the supraspinatus, a partial tear of the subscapularis, and thickening of the subdeltoid bursa with pain and bunching on abduction.[21]
[21] ARD, p 198.
The remaining radiological reports annexed to the ARD are not relevant to the issues in dispute.
Mr Ernie Christensen
Mr Christensen provided a Rehabilitation Return to Work dated 20 February 2018.[22] He noted the history of injury but recorded only the injury to the right shoulder. Mr Christensen discussed the appellant’s capacity for work and provided a return to work goal.
[22] Reply, pp 18–21.
Mr Christensen also provided a Rehabilitation Closure Report dated 26 July 2018.[23] The report indicated that the appellant confirmed that she was performing her pre-injury duties without issues, and Dr Bala had provided a Certificate of Capacity confirming that she was fit for pre-injury duties, but may needed ongoing physiotherapy and review by Dr Sher. The certificate, which was dated 13 July 2018, was in evidence.[24]
[23] Reply, pp 22–26.
[24] Reply, pp 30–32.
Ms Tina Webster, Director of the respondent
Ms Webster was interviewed and provided a statement dated 25 September 2019.[25] Ms Webster gave details of the injury reported and the events immediately following the injury. Ms Webster said that the appellant only complained of a right shoulder injury and there was no mention of injury to the left knee. Notably, Ms Webster was on leave at the time of the injury.
[25] Reply, pp 40–44.
Ms Webster advised that the appellant returned to work and provided details of the return to duties and the appellant’s medical certification. Ms Webster confirmed that the appellant returned to full duties with the exception of cleaning duties and after the appellant performed in the charity fund raising dance in November 2018, the appellant also agreed to perform those cleaning duties.
Ms Webster discussed the video taken of the appellant participating in several performances at a fund raiser on 10 November 2018. Ms Webster indicated that since 29 April 2019, the appellant had been certified as having no capacity for employment. The certificate of that date does not appear to be in evidence.
The injury notification
A document titled “first contact notification” completed by Ms Mary Antoun was in evidence.[26] The document recorded that the appellant had reported her injury on 23 August 2017, when she was knocked over by a student and fell onto “softfall.” The injuries recorded were injury to the right shoulder, arm and right leg.
[26] Reply, p 33.
The video evidence was also in evidence. It is not necessary to review that evidence.
The medico-legal opinions
The appellant qualified Dr Eugene Gehr, orthopaedic surgeon, to provide an opinion. Dr Gehr provided a report dated 24 June 2019.[27] Dr Gehr took a history that the appellant had no recollection of previous problems with the cervical spine, lumbar spine, left shoulder or bilateral knees prior to the fall on 23 August 2017. The history provided by the appellant was that in the incident on that date, the appellant was knocked by a student and fell, feeling immediate pain in her right knee and also injuring her lumbar spine, cervical spine and right shoulder. Dr Gehr recorded that there had been no subsequent accidents and no other conditions had developed.
[27] ARD, pp 13–24.
Dr Gehr noted the appellant’s current complaints were of pain in the lumbar spine, the right shoulder and over the back of the head, which was worse with movement. Dr Gehr further noted that the appellant reported a tingling sensation down both of the legs since the injury and pain in the left shoulder after the injury. Dr Gehr added that the appellant also complained of a problem with her left shoulder at the time of the injury and on examination, there was some restriction of movement. Dr Gehr referred to the appellant’s complaint of having a problem with her lumbar spine since the injury and a decreased sensation in the left leg in the L5/S1 distribution which fulfilled the criteria of radiculopathy related to the lumbar spine. Dr Gehr also referred to the appellant’s complaint of symptoms in the cervical spine ever since the injury. Dr Gehr was of the opinion that there was evidence of cervical radiculopathy and decreased sensation of motor power on the right side.
Dr Gehr diagnosed a right rotator cuff injury, soft tissue injuries with radiculopathy in the cervical and lumbar spines and bilateral osteoarthritis in both knees. Dr Gehr reviewed the history that the problems with the cervical spine and lumbar spine had been present since immediately after the injury, and the left shoulder and left knee had developed subsequently. Dr Gehr thought it not unreasonable that symptoms developed within the time frame. Dr Gehr was of the opinion that, based on the history provided by the appellant, including that she had been asymptomatic prior to the injury, the degenerative condition in the cervical spine, the lumbar spine, the left shoulder and bilateral knee problems would have remained asymptomatic but for the injury on 23 August 2017. Dr Gehr discussed the appellant’s likely future treatment regime and opined that the appellant was unable to work because of her impairments and her future capacity for work was non-existent.
Dr Gehr provided a supplementary report dated 16 October 2019 following receipt of the clinical notes from the appellant’s treatment providers, a bone scan report dated 4 October 2019 and a report of Dr Bosanquet, orthopaedic surgeon, who had been qualified by the respondent to provide an opinion.[28] Dr Gehr confirmed his view that the appellant sustained injuries to her right shoulder, right knee, cervical spine and lumbar spine as a result of the incident on 23 August 2017. Dr Gehr remarked that the appellant had been previously asymptomatic in those regions. Dr Gehr was also of the opinion that it was not unrealistic that the appellant would develop problems with her left shoulder as a result of her right shoulder injury. Dr Gehr added that the left knee problems would also relate to the right knee injury because of the added load on the left knee. Dr Gehr further concluded that the appellant’s lumbar spine injury resulted from the appellant’s altered gait because of the knee injury and because of increased loads transmitted to the lumbar spine.
[28] ARD, pp 25–27.
Dr Gehr disagreed with the opinion of Dr Bosanquet that the only injuries suffered by the appellant on 23 August 2017 were the right shoulder and right knee. Dr Gehr asserted that Dr Lim had documented the injuries the subject of the incident. Further, Dr Gehr said that the appellant would not have been able to perform the jumping, leaping and sporting activities that she engaged in with the children if the regions complained of had been significantly symptomatic prior to the fall.
In a further supplementary report dated 16 November 2019,[29] Dr Gehr reviewed a number of radiological reports in relation to the cervical spine, the lumbar spine, the left knee and the right knee. Dr Gehr advised that the appellant had pre-existing degenerative changes in the cervical spine and lumbar spine, but they would have remained asymptomatic had it not been for the injury on 23 August 2017. Dr Gehr said that even if it was accepted that she had prior symptoms, the fall would have aggravated those and they would therefore have been caused by the injury. Dr Gehr added that the appellant’s right knee symptoms would have caused her to have an antalgic gait, which he had noted in his physical examination of the appellant, and this would have contributed to and caused aggravation of her lumbar issues, but not her cervical problems.
[29] ARD, pp 28–31.
Dr John Bosanquet
Dr Bosanquet was asked to provide an opinion on behalf of the respondent. He provided a report dated 2 April 2019.[30] Dr Bosanquet took a history of the appellant having fallen onto concrete on 23 August 2017, injuring the right shoulder. Dr Bosanquet recorded that the appellant was referred to Dr Sher, who performed surgery to the shoulder on 13 November 2017, following which the appellant returned to work in March 2018.
[30] Reply, pp 10–15.
Dr Bosanquet noted that the appellant developed back problems, was treated with physiotherapy and was working five days per week. Dr Bosanquet further noted that the appellant was, at the time of the consultation, experiencing neck and back pain, and her right shoulder had improved since the surgery. Dr Bosanquet recorded that the appellant complained of no pain in the right shoulder but some restriction of movement, and that her back and neck were the main problems. On examination, Dr Bosanquet observed very limited movement in the right shoulder and limited abduction and forward flexion of the left shoulder. Dr Bosanquet also examined the lumbar and cervical spines and reviewed the radiological investigations of the cervical and lumbar spines, right shoulder, and left and right knees.
Dr Bosanquet opined that the appellant had suffered an aggravation of degenerative changes in her right shoulder. Dr Bosanquet attributed the symptoms in the cervical spine, lumbar spine, left shoulder and both knees to the underlying degenerative changes. Dr Bosanquet further opined that the appellant’s employment was not a substantial contributing factor to the neck, low back and left knee symptoms, reasoning that the marked degenerative changes pre-dated the injury and the symptoms did not arise until after the injury. Dr Bosanquet noted that Dr Mason reported pre-existing problems in the appellant’s neck and back. Dr Bosanquet was of the opinion that there was no connection between the appellant’s injury and her neck, low back and left knee symptoms, which all developed subsequent to the incident, and were consequent upon the appellant’s normal daily activities and the underlying degenerative changes. Dr Bosanquet added that he was not aware that the right knee condition was work related. He said that, after the right shoulder arthroscopy, the right shoulder had recovered, except for some restriction in movement.
Dr Bosanquet provided a supplementary report dated 8 October 2019.[31] Dr Bosanquet confirmed his earlier opinion and added that it was his opinion that the conditions in the left shoulder, neck, left knee and lumbar spine were not consequent on the work-related injury.
[31] ARD, pp 44–45.
Dr Bosanquet pointed out that both Dr Lim and Dr Gehr were of the opinion that the left shoulder, neck, lumbar spine and both knees were involved in the subject incident, which was contrary to the findings in the medical reports from the local doctor over previous years.
THE ARBITRATOR’S REASONS
The Arbitrator delivered oral reasons for his decision and the transcript of those reasons is available.
The Arbitrator noted the appellant’s injury, the claims brought by the appellant and the issues raised by the respondent. The Arbitrator noted the submissions made by the parties and reviewed the evidence relied upon by both parties.
The Arbitrator provided a detailed summary of the clinical notes of Dr Bala and referred in particular to the entries prior to the injury on 23 August 2017, which referred to right knee pain and right shoulder symptoms, both of which required x-ray investigations. The Arbitrator noted the x-ray of the right knee undertaken after the reported injury showed similar findings to an earlier x-ray undertaken in 2013. The Arbitrator also noted that the clinical note taken by Dr Bala on 10 July 2018 recorded that the appellant was not suffering from back pain and that “back ache” was first reported on 26 November 2018, which the appellant attributed to the injury on 23 August 2017. The Arbitrator further referred to the appellant’s complaints to the doctor on 19 December 2018, which included reference to the neck and back.
The Arbitrator referred to the case conference with Dr Bala conducted on 13 July 2018, in which Dr Bala issued a Workcover certificate of capacity indicating that the appellant was fit for all duties at that time. The Arbitrator also referred to the consultations with and treatment provided by Dr Sher. The Arbitrator considered that the evidence from Dr Mason was ambiguous and his opinion was unclear.
The Arbitrator formed the view that, as submitted by the respondent, the appellant’s evidence was unreliable. The Arbitrator provided the following reasons:
(a) the appellant did not provide the history of her pre-existing right knee and right shoulder problems to Dr Bosanquet, Dr Gehr or Dr Lim;
(b) the appellant did not refer to those pre-existing problems in her statements;
(c) the history recorded by Dr Lim was limited to a past history of hypertension, diabetes and high cholesterol, which, if it was an accurate record of what the appellant told Dr Lim, was entirely misleading;
(d) the appellant had suffered from a significant past history of right knee and right shoulder problems prior to the work related injury;
(e) the evidence of back and/or neck pain occurring at the time of the incident on 23 August 2017 was inconsistent with Dr Bala’s notes and medical certificates, the evidence of Mr Christensen, Ms Webster and Dr Mason (although he placed little weight on the evidence from Dr Mason). The appellant had a reasonable opportunity to report those problems to those people and practitioners, and
(f) the appellant’s assertions in the questionnaire provided to Dr Lim in May 2019 were inconsistent with her activities recorded in the video evidence taken in November 2018.
The Arbitrator remarked that the video was short and that he could not place too much weight on it, however the Arbitrator noted that the appellant’s presentation in that video was totally at odds with that recorded in the questionnaire. The Arbitrator considered that it may have been evidence of a significant deterioration in the appellant’s condition occurring years after the work injury.
The Arbitrator noted that the respondent accepted that the right shoulder and right knee had been injured in the incident on 23 August 2017. He considered that it was probable that both injuries were aggravations of pre-existing conditions, which, in the case of the right knee, was an exacerbation of her long-standing arthritis. The Arbitrator noted the appellant suffered from significant symptoms in the right shoulder just months before the injury, but said that, nonetheless, after the injury, the appellant required surgery to the right shoulder.
In respect of the right knee, the Arbitrator considered that it was not evident that the appellant had suffered any structural damage to the right knee in the incident and remarked that there were few references to the right knee in Dr Bala’s notes. The Arbitrator observed that an acceptance that the effects of the injury were continuing required an acceptance of the appellant’s evidence, which did not provide a reliable account of the symptoms prior to and after the injury. The Arbitrator concluded that he was not convinced that the effects of the right knee injury persisted for more than a short while.
The Arbitrator further concluded that he could not accept that the appellant had injured her neck and back in the incident on 23 August 2017. The Arbitrator noted the appellant’s submission that the fall on a concrete surface was capable of causing such injury. The Arbitrator said, however, that in the absence of any history to Dr Bala, to Ms Webster or to Mr Christensen over the twelve months following the injury, he did not accept that there was a causal relationship between the injury and the symptoms in the back or neck. The Arbitrator pointed out that the first reference to the appellant having injured her back in the fall was in November 2018, which he considered was a reconstruction of events on the part of the appellant. The Arbitrator quoted the following passage from the judgment of Lord Pearce in Onassis v Vergottis:[32]
“It is a truism often used in accident cases that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[32] 2 Lloyd’s Report 403, 431.
The Arbitrator observed that there were many exceptions to that statement and conceded that hospital notes and the notes of general practitioners are often inaccurate and record incorrect histories. The Arbitrator considered, however, that where multiple practitioners over a very long time fail to record a history of injury on multiple occasions, that evidence must be given weight.
The Arbitrator pointed out that the appellant’s neck condition was not attributed to the work injury until after November 2018. The Arbitrator referred to the opinion of Dr Bosanquet that the appellant’s complaints were explained on the basis of degenerative changes. The Arbitrator said he accepted that opinion. The Arbitrator did not accept that Dr Gehr and Dr Lim had a reliable history upon which to base their opinions.
The Arbitrator referred to the appellant’s assertion in the alternative that the back condition was as a consequence of the right knee injury and indicated that he did not accept that assertion. The Arbitrator indicated that in his view, the injury to the right knee was a transient exacerbation of a longstanding condition. The Arbitrator considered that the appellant’s right knee condition was undoubtedly a progressive osteoarthritis and the impact on her mobility was more likely the consequence of the underlying osteoarthritic condition than an exacerbation caused by the injury. The Arbitrator added that proof that the pre-existing condition was aggravated was reliant upon an accurate history, and the appellant’s active right knee osteoarthritis was not revealed to the medical practitioners. The Arbitrator said that the same logic applies to the left knee condition. The Arbitrator reiterated that the exacerbation to the right knee condition did not last for long, so that it was difficult to see how the right knee would have had a detrimental effect on the left knee. The Arbitrator also pointed out that whether the left knee was consequential to the right knee injury was also dependent upon a correct history which he considered was not, in this case, available.
The Arbitrator turned to the question of whether the left shoulder was consequent upon the right shoulder injury, noting that the appellant had undergone surgery to the right shoulder post-injury and had some restriction of movement. The Arbitrator said it was difficult to ascertain the pathology, if any, in the left shoulder. The Arbitrator observed that Dr Bala’s notes did not assist and Dr Lim simply recorded in 2019 that the appellant’s range of left shoulder movement was poor, without referring to any problems that resulted from the accident. The Arbitrator referred to Dr Bala’s opinion provided to the respondent in 2019 that the consequential conditions related to the injury, but noted the opinion was not explained and was largely illegible. The Arbitrator ultimately concluded that he would not make a finding in respect of the left shoulder because, in the circumstances, he did not consider there was evidence that the left shoulder impacted the appellant’s capacity for work. Further, the Arbitrator said there was insufficient material to show that the left shoulder resulted from the right shoulder injury.
The Arbitrator concluded that the appellant had not established an entitlement to weekly payments from the date claimed in the proceedings. The Arbitrator noted that Dr Bala certified the appellant as fit for unrestricted duties in December 2018 except for some overhead lifting restrictions. The Arbitrator was of the view that the appellant had not proved that she was incapable of performing the work she had carried out for the respondent as a result of her injuries. The Arbitrator commented that the appellant may have difficulties performing those duties because of back, neck and bilateral knee pain, but none of those conditions were attributable to the injury and so were not compensable.
The Arbitrator concluded that:
(a) the appellant suffered injury to the right shoulder and right knee as a result of the injury on 23 August 2017;
(b) the appellant had not established that she suffered either primary or consequential injuries to her back, neck or knees in the injury on 23 August 2017 or as a result of that injury;
(c) any injury to the right knee was a transient exacerbation of right knee osteoarthritis;
(d) the appellant’s right shoulder condition did not preclude her from performing her pre-injury work, and
(e) there was no medical evidence in relation to any pathology in the left shoulder.
The Arbitrator further concluded that the only relief available to the appellant was an entitlement to the cost of medical and hospital treatment in respect of the right shoulder.
The Certificate of Determination issued on 2 March 2020 is reproduced above.
GROUNDS OF APPEAL
The appellant brings the following seven grounds of appeal:
(a) Ground One: the Arbitrator erred in fact and law by finding that the injury to the right knee:
(i)merely involved a transient exacerbation of a longstanding condition, and
(ii)did not persist beyond 2017,
which were findings not open to the Arbitrator on the available evidence;
(b) Ground Two: the Arbitrator erred in fact and law by failing to provide adequate reasons for his finding that the exacerbation of the appellant’s right knee arthritis was transient and the effects of which would not have persisted beyond 2017;
(c) Ground Three: the Arbitrator erred in fact and law by failing to find that the appellant suffered consequential conditions affecting her left knee and back as a result of the undisputed right knee injury;
(d) Ground Four: the Arbitrator erred in fact and law by failing to consider the evidence of the appellant’s incapacity and failing to consider that the appellant’s undisputed right shoulder injury would have reduced her earning capacity, thus giving rise to an entitlement to weekly payments;
(e) Ground Five: the Arbitrator erred in fact and law by failing to consider whether the appellant’s right knee injury and the consequential conditions in the left knee and back reduced the appellant’s capacity, giving rise to an entitlement to weekly payments;
(f) Ground Six: the Arbitrator erred in fact and law in failing to provide reasons for the determination that the appellant was not entitled to receive weekly payments, and
(g) Ground Seven: the Arbitrator erred in fact and law by failing to order the respondent to pay the appellant weekly benefits pursuant to s 37 of the 1987 Act and to pay medical expenses pursuant to s 60 of the 1987 Act in respect of the right knee, left knee and back, in addition to the right shoulder.
SUBMISSIONS
Ground One: the Arbitrator erred in fact and law by finding that the injury to the right knee:
merely involved a transient exacerbation of a longstanding condition, and
did not persist beyond 2017,
which were findings not open on the available evidence
The appellant’s submissions
The appellant points out that there was no dispute that she injured her right knee in the incident on 23 August 2017. The appellant refers to the clinical notes from the Homebush Medical Centre which disclosed that the appellant had received treatment for right knee pain in 2006 and an x-ray taken at the time showed degenerative changes. The appellant also refers to the entry in those notes on 19 May 2017 in which painful right shoulder and right knee complaints were recorded.
The appellant says that the Arbitrator’s observations that the appellant had a long history of right knee problems and a significant problem with her right knee and right shoulder on 19 May 2017 were correct. The appellant says that the Arbitrator’s finding that it was probable that both the right knee and right shoulder injuries were aggravations of pre-existing conditions and that the right knee injury was an exacerbation of long-standing arthritis was open to him and also correct.
The appellant refers to the Arbitrator’s observations that:
(a) following the injury there were few references to the right knee in Dr Bala’s clinical notes;
(b) acceptance of a continuation of the symptoms caused by the injury was dependent upon the acceptance of the appellant’s evidence, and
(c) he could not rely on the appellant’s evidence as a reliable account of the history of the right knee symptoms both before and after the injury.
The appellant submits that, on the basis of those reasons, notwithstanding the Arbitrator having found that the right knee injury was an exacerbation of a longstanding condition, the Arbitrator concluded that he was not persuaded that the effects of the injury to the right knee persisted for more than a short time. The appellant asserts that there is no evidence to support that finding. The appellant points to the evidence of Dr Bosanquet and submits that Dr Bosanquet did not address the question of the right knee exacerbation or its resolution. The appellant asserts that the lack of reference to the right knee in Dr Bala’s clinical notes cannot be a proper basis for the finding that the right knee exacerbation spontaneously resolved. The appellant submits that in considering whether the exacerbation has ceased, a medical explanation is required. The appellant questions where the medical evidence is that supports the finding and indicates when the resolution occurred.
The appellant says that the Arbitrator failed to take into account the WorkCover certificates of capacity issued by Dr Bala on 17 April 2018 and 5 June 2018, which indicated that the appellant suffered from pain in the right arm and right knee since the fall. The appellant asserts that it follows that this is evidence that the exacerbation had lasted for more than a short time.
The appellant asserts that it is also relevant that on 26 March 2018, Dr Balakrishnan noted the appellant’s complaint of left knee pain, which would be consistent with the appellant’s claim that she suffered a consequential condition in the left knee because of altered gait from the right symptoms. The appellant says that the Arbitrator did not consider this evidence, and also did not consider the evidence of Dr Sher, who confirmed in his report dated 28 November 2018 that the appellant was experiencing continuing complaints in the right knee.
In conclusion, the appellant submits that the Arbitrator’s criticism of the reliability of the appellant’s evidence was insufficient to counter the established evidence that:
(a) the appellant exacerbated her right knee arthritis;
(b) the certificates issued by Dr Bala eight and ten months after the injury recorded right knee pain since the incident, and
(c) an entry in the clinical notes dated 3 January 2019 confirmed the right knee problems continued.
The appellant contends that it follows that the Arbitrator’s finding that the exacerbation of the right knee condition ceased within a short time was unfounded, erroneous and not open to him on the evidence.
The respondent’s submissions
The respondent submits that the allegation of injury to the right knee was not pleaded as an aggravation of a pre-existing condition. The respondent refers to the pleadings, in which the appellant claimed that, as a result of the fall she suffered injury to her right shoulder and right knee. The respondent contends that it became necessary for the appellant to conduct the claim as an aggravation injury because she had failed to disclose the longstanding pre-existing condition in her right knee. The appellant contends that the existence of the longstanding condition meant that the injury could not have been a frank injury, or injury simpliciter.
The respondent asserts that, insofar as the claim was contested on the basis that it was an aggravation of a pre-existing condition, the appellant is now seeking to reverse the onus of proof. The respondent submits that it is a matter for the appellant to prove to the satisfaction of the Commission that the effects of the injury continued, which she failed to do.
The respondent submits that the Arbitrator correctly identified that he needed to be satisfied that the pre-existing condition had been made worse either on a pathological or symptomatic basis and that the worsened condition persisted, citing Federal Broom Co Pty Ltd v Semlitch,[33] Elsamad v Belmadar Pty Ltd,[34] Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters[35] and Nader v A O Design Pty Ltd[36] as authorities for that proposition.
[33] [1964] HCA 34; 110 CLR 626 (Semlitch).
[34] [2019] NSWWCCPD 22.
[35] [2010] NSWWCCPD 31.
[36] [2020] NSWWCCPD 19.
The respondent explains that the Arbitrator was not satisfied that he could rely upon the appellant’s evidence and concluded that there was no reliable corroborative medical or lay evidence to support the contention that the pre-existing condition had been made worse on a continuing basis. The respondent says that in the absence of reliable corroborative evidence that the symptomatic change brought about by the injury persisted, the only evidence available was that of the appellant, which the Arbitrator considered was unreliable. The respondent asserts that there was no reliable evidence available to the Arbitrator to support a finding that the aggravation persisted.
The respondent refers to the history recorded by Dr Sher that the appellant had “flared up” her right knee, which the respondent says is a term usually used to describe a temporary aggravation, and that interpretation is consistent Dr Sher’s failure to refer to knee problems in his subsequent reports.
The respondent submits that Dr Bosanquet did not address the exacerbation of the appellant’s right knee in his report dated 2 April 2019 because the appellant did not make any complaint about it. The respondent adds that, in his report dated 8 October 2019, Dr Bosanquet attributed the appellant’s complaints to her pre-existing condition and also referred to the incorrect histories recorded by Dr Gehr and Dr Lim.
The respondent refers to the appellant’s complaint that she suffered from knee symptoms “since the fall” but did not concede that there were knee symptoms prior to the fall. The respondent submits that the pre-existing right knee condition is sufficient explanation for complaints of pain at any time, which is consistent with Dr Bosanquet’s opinion.
The respondent concludes that the appellant failed to adduce any evidence that was based on a correct history which supported the contention that her complaints of pain after the fall resulted from the fall, rather than the pre-existing condition.
The respondent says that it was not contested that the appellant suffered an exacerbation of her longstanding arthritis. The respondent accepted that Dr Bala issued certificates recording knee pain after the fall but did not accept that the knee pain recorded after the fall resulted from the fall. The respondent adds that Dr Sher made no analysis of the cause of the appellant’s complaints and so his opinion would have been of no assistance to the Arbitrator.
Ground Two: the Arbitrator erred in fact and law by failing to provide adequate reasons for his finding that the exacerbation of the appellant’s right knee arthritis was transient and the effects of which would not have persisted beyond 2017
The appellant’s submissions
The appellant submits that the Arbitrator’s observation that there were few references to the right knee in the clinical notes was not a proper basis for the Arbitrator to proceed to find that the increased pathology, which was consequent upon the work related exacerbation, spontaneously resolved. The appellant maintains that the Arbitrator’s reasons were not supported by medical opinion and ignores the general practitioner’s certifications in April and June 2018.
The respondent’s submissions
The respondent asserts that there is no substantial difference between this ground of appeal and Ground One. The respondent submits that the Arbitrator was not satisfied that the evidence established a continuity of symptoms and he gave reasons for that finding. The respondent says that it has addressed the Arbitrator’s reasons in its submissions in response to Ground One of the appeal.
Ground Three: the Arbitrator erred in fact and law by failing to find that the appellant suffered consequential conditions affecting her left knee and back as a result of the undisputed right knee injury
The appellant’s submissions
The appellant submits that the Arbitrator’s erroneous finding that the right knee injury would not have persisted beyond 2017 led the Arbitrator into further error in respect of his failure to find that the appellant suffered consequential conditions in her left knee and lumbar spine.
The appellant refers to the authority of Kooragang Cement Pty Ltd v Bates,[37] and submits that the causal connection is a matter of common sense. The appellant refers to the evidence of Dr Gehr, who, in his report dated 16 October 2019, explained that the left knee problems resulted from placing greater load on the left knee because of the problems in the right knee. The appellant says that Dr Gehr further explained in his report dated 16 November 2019 that the appellant’s right knee problems caused an altered gait, which caused the appellant’s lumbar problems.
[37] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The appellant asserts that Dr Gehr’s forensic conclusions were logical and based on the evidence and the respondent had not provided any forensic opinion to contradict that evidence. The appellant says that it is also relevant that the appellant’s lumbar and left knee complaints in 2018 were consistent with an onset explained by an altered gait.
The appellant concludes that it follows that the allegation that the appellant suffers from consequential conditions in her lumbar spine and left knee is established and should have been accepted by the Arbitrator.
The respondent’s submissions
The respondent contends that it does not follow as a matter of course that symptoms in the back and left knee were a consequence of the aggravation injury to the appellant’s right knee, even if that aggravation persisted. The respondent submits that it is necessary to establish a causal connection between the aggravation of the right knee condition and the onset of left knee and back symptoms, which the appellant failed to do.
The respondent submits that the appellant was required to provide expert medical evidence in support of her claim that was based on a correct history. The respondent says that the Arbitrator could not rely on the appellant’s evidence, and he had the benefit of the respondent’s expert evidence which was based on a correct history. The appellant points out that Dr Gehr did not have a history of the longstanding, pre-existing right knee condition and an opinion from him based on the correct history was never sought.
The respondent concludes that the Arbitrator applied a common sense approach as described in Kooragang, by finding that the appellant had not established that the lumbar and the knee pain resulted from the injury because all of the medical evidence that supported that contention was based on a false history. The respondent submits that Dr Bosanquet’s opinion was an alternate explanation and it was available for the Arbitrator to accept it.
Ground Four: the Arbitrator erred in fact and law by failing to consider the evidence of the appellant’s incapacity and failing to consider that the appellant’s undisputed right shoulder injury would have reduced her earning capacity, thus giving rise to an entitlement to weekly payments
The appellant’s submissions
The appellant refers to the Arbitrator’s finding that the appellant had not established an entitlement to weekly compensation after 28 April 2019. The appellant submits that the Arbitrator relied on the certification given by Dr Bala that the appellant was fit for pre-injury duties from 13 July 2018. Further, the Arbitrator considered that Dr Sher “suggested” that the appellant was fit for unrestricted duties except for overhead lifting restrictions. The appellant submits that the Arbitrator’s conclusions about Dr Sher’s opinion were not accurate. The appellant contends that Dr Sher’s opinion was restricted to the appellant’s capacity solely in respect of her right shoulder. The appellant submits that Dr Sher’s opinion was not indicative of the appellant’s general capacity and, in any event, Dr Sher did place restrictions on the appellant’s capacity. Additionally, the Arbitrator failed to take into account that on 19 December 2018, Dr Balakrishnan noted the appellant’s complaint of aching in the right shoulder.
The respondent’s submissions
The respondent refers to the definition of suitable employment contained in s 32A of the 1987 Act and submits that it cannot be said that an injury will necessarily lead to a compensable economic loss. The respondent says that it is necessary to establish that the injury gave rise to an entitlement to weekly compensation, which the appellant failed to do.
The respondent refers to the reports of Dr Sher and observes that, in his report dated 22 December 2017, Dr Sher considered that the appellant was fit for work with some restrictions, but in subsequent reports dated 16 February 2018 and 25 May 2018, those restrictions were gradually lifted. The respondent points to the fact that the appellant did return to work and worked without economic loss until the end of 2018, despite her injuries.
Ground Five: the Arbitrator erred in fact and law by failing to consider whether the appellant’s right knee injury and the consequential conditions in the left knee and back reduced the appellant’s capacity, giving rise to an entitlement to weekly payments
The appellant’s submissions
The appellant submits that a further factor that was indicative of error on the Arbitrator’s part in determining the appellant’s incapacity was the Arbitrator’s findings in relation to the knees and back. The appellant refers to the Arbitrator’s reasons in which the Arbitrator observed that the appellant may have had an incapacity in relation to the knees and her back, but that those were not compensable conditions. The appellant concludes that, as the Arbitrator’s finding that the knees and back were not compensable was erroneous, it follows that the failure to take into account those conditions in the assessment of the appellant’s capacity was also erroneous.
The respondent’s submissions
The respondent submits that the Arbitrator was not satisfied that the conditions affecting the appellant’s back and left knee resulted from the work related injury, so it was not necessary for the Arbitrator to consider the issue.
Ground Six: the Arbitrator erred in fact and law in failing to provide reasons for the determination that the appellant was not entitled to receive weekly payments
The appellant’s submissions
The appellant describes the Arbitrator’s reasons for dismissing the claim for weekly payments as “perfunctory.” The appellant submits that the Arbitrator failed to take into account any evidence other than Dr Bala’s certification on 1 July 2018 and Dr Sher’s report dated 28 November 2018. The appellant submits that a proper evaluation of the issue with respect to capacity required a more comprehensive analysis of the evidence of her capacity before and after those dates.
The respondent’s submissions
The respondent refers to the decision of President Keating in NSW Police Force v Newby,[38] which the respondent submits provides a summary of the law in relation to an Arbitrator’s obligations to give reasons. That is,
(a) the reasons do not need to be lengthy or elaborate (Soulemezis v Dudley Holdings Pty Ltd[39]);
(b) the Arbitrator need not refer to every piece of evidence (Yates Property Corporation Pty Ltd (in Liq) v Darling Harbour Authority[40]);
(c) the decision must be read as a whole (Beale v Government Insurance Office (NSW)[41]), and
(d) a Presidential member on review is not required to comb through the Arbitrator’s reasons in search of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[42]).
[38] [2009] NSWWCCPD 75, [149]–[151].
[39] (1987) 10 NSWLR 247.
[40] (1991) 24 NSWLR 156.
[41] (1997) 48 NSWLR 430 (Beale).
[42] (1996) HCA 6; 185 CLR 259.
The respondent submits that the Arbitrator considered all of the evidence and correctly found that the appellant’s evidence was founded upon a factual misrepresentation by the appellant that her conditions resulted from the injury and that she was asymptomatic prior to the work injury.
The respondent concludes that the pathway from the Arbitrator’s findings about the lack of reliable evidence to the conclusions ultimately reached by the Arbitrator was demonstrably rational.
Ground Seven: the Arbitrator erred in fact and law by failing to order the respondent to pay the appellant weekly benefits pursuant to s 37 of the 1987 Act and to pay medical expenses pursuant to s 60 of the 1987 Act in respect of the right knee, left knee and back, in addition to the right shoulder
The appellant’s submissions
The appellant submits that, had the Arbitrator not fallen into error in relation to the issues of liability and capacity for work, he would have made an award of weekly payments in favour of the appellant pursuant to s 37 of the 1987 Act.
The appellant further submits that she is significantly disabled with pain and restrictions in relation to her right shoulder, knees and back and given her age, she is essentially unemployable. The appellant asserts that the Arbitrator ought to have awarded an amount of $364.43, which is 80% of the appellant’s pre-injury average weekly earnings in accordance with s 37 of the 1987 Act.
The appellant submits that it follows that, in addition to the order that the respondent pay the appellant’s treatment expenses associated with the right shoulder, the Arbitrator ought to have ordered the respondent to pay the appellant’s treatment expenses in relation to her knees and back.
The respondent’s submissions
The respondent submits that there is no substantial difference between this ground of appeal and the previous ground. The respondent says no fresh considerations are raised. The respondent relies on its submissions in respect of Grounds Five and Six and particularly notes that the Arbitrator concluded that the back and left knee conditions did not result from the injury upon which the appellant relies.
THE RELIEF SOUGHT
The appellant seeks to have the Arbitrator’s Certificate of Determination revoked and be replaced with orders that:
(a) the appellant received an injury to her right shoulder and knee within the meaning of s 4 of the 1987 Act;
(b) the appellant developed a consequential condition affecting her left knee and back, resulting from her right knee injury;
(c) there be an award in the appellant’s favour in the amount of $354.43 per week pursuant to s 37 of the 1987 Act from 29 April 2019 to date and continuing, and
(d) the respondent to pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act in respect of the right shoulder, both knees and back.
The respondent seeks to have the Arbitrator’s decision confirmed.
DISCUSSION
The appellant does not take issue with the Arbitrator’s conclusion that the appellant’s own evidence was unreliable. Nor does the appellant take issue with the Arbitrator’s findings that the neck and back were not injured in the fall on 23 August 2017. The challenge is limited to the Arbitrator’s findings that the right knee injury was merely transient, that the appellant did not suffer from consequential conditions in the lumbar spine and left knee and the Arbitrator’s finding in relation to the appellant’s work capacity.
Those findings are findings of fact. As described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[43] in order to demonstrate error on the part of the Arbitrator in respect of findings of fact, what is required is to establish that material facts have been overlooked or given too little weight, or that other probabilities so outweigh the Arbitrator’s conclusion that it can be said his conclusion was wrong.
[43] (1966) 39 ALJR 505.
It is convenient to consider each ground of appeal in the order below.
Ground One
Ground One of the appeal asserts error on the part of the Arbitrator in finding that the injury to the right knee was merely a transient exacerbation of a longstanding condition which did not persist beyond 2017. The appellant contends that there was no evidence to support such a finding. The appellant submits that the lack of reference in the Homebush Medical Practice clinical notes was not a sufficient reason to support such a finding.
The Arbitrator did not accept that the appellant’s evidence was reliable so that it was necessary for him to look at the documentary evidence in order to ascertain whether the appellant had made out her case.[44] The Arbitrator took into account the lack of reports in the clinical notes of continued pain in the right knee, but he did not do so in isolation from the other evidence available to him. The Arbitrator noted the significant prior history of symptoms complained of by the appellant just months before the injury and that the x-ray of the right knee undertaken after the reported injury showed similar findings to an earlier x-ray undertaken in 2013. He noted that the appellant had failed to refer at all to those previous symptoms and that there did not appear to have been any structural damage to the knee in the injury. The Arbitrator also gave reasons for discounting the opinions of Dr Gehr, Dr Lim and Dr Mason. The Arbitrator accepted the opinion of Dr Bosanquet. Those are all matters that the Arbitrator was entitled to take into account when considering whether the aggravation of the disease process in the appellant’s right knee continued. That is, whether the right knee condition continued to be more grave, more serious or more grievous in its effect on the appellant, in accordance with Windeyer J’s observations in Semlitch,[45] the authority relied on in these proceedings by the respondent.
[44] Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43.
[45] Semlitch, 639.
The appellant points to the evidence in the Workcover certificates of capacity issued by Dr Bala on 17 April 2018 and 5 June 2018 which the appellant submits is evidence that at that time, the right knee pain continued, contrary to the Arbitrator’s finding. I do not accept that the certificates are evidence that the work related aggravation of the disease condition continued to those dates. The reference to “injury to Right arm and shoulder and pain R knee since the fall” was in response to the query as to what was the “Diagnosis of work related injury/disease.” That response is not sufficient to establish that the more grievous effects caused by the injury were continuing at that point. In any event, even if it were acceptable evidence to that effect, it does not go to show that the effects were continuing beyond the declinature of liability on 29 April 2019.
The appellant also relies on the entry in the clinical notes referring to right knee pain on 3 January 2019 as evidence that the aggravation continued. In the absence of any reference to right knee pain in the clinical notes between 28 August 2017 and 3 January 2019, and the presence of entries of knee pain before the injury, it is difficult to accept that the entry made on 3 January 2019 was of sufficient evidentiary value to say that the complaint of right knee pain established that the effect of the injury continued.
The appellant submits that the question of whether the exacerbation has ceased requires a medical explanation and questions where is the medical evidence that indicates when the resolution occurred. In many cases that would be a valid question, such as in circumstances where the pre-existing disease condition had been asymptomatic and, when rendered symptomatic by the injury, the symptoms remained. However, in this case, the appellant had an undisclosed, significant, pre-existing condition and there was simply no evidence that there was a complaint of a continuum of more serious symptoms (that is, more serious than those complained about prior to the injury). In those circumstances it cannot be presumed that the symptoms were referrable to the injury and it was appropriate for the Arbitrator to determine, on the evidence before him, that he could not be satisfied that there was evidence that the aggravation continued during the relevant period.
The appellant has failed to establish error of the kind required on the part of the Arbitrator. Ground One of the appeal has not been made out and the ground of appeal fails.
Ground Two
Ground Two of the appeal asserts that the Arbitrator failed to give adequate reasons for his decision that the exacerbation of the appellant’s right knee arthritis had ceased. The submissions made in respect of this ground of appeal mirror those made in respect of Ground One. That is, it was insufficient to satisfy the Arbitrator’s obligation to give reasons that the Arbitrator simply relied on the absence of reference to the right knee in the clinical notes and that such reliance was inconsistent with the certificates of capacity issued in April and June 2018.
I have discussed the Arbitrator’s reasons for that determination and found that the certificates of capacity issued in April and June 2018 were not probative evidence of the appellant having continued to suffer from the effects of the exacerbation of her pre-existing right knee condition. I have also pointed to the Arbitrator’s reasons for finding that the exacerbation had ceased. The Arbitrator’s reasons were not restricted to the absence of complaints of right knee pain in the clinical notes.
An arbitrator has a statutory obligation to give a brief statement of reasons for his or her decision.[46] The reasons are not required to be lengthy or elaborate.[47] A consideration of whether an Arbitrator has complied with the obligation to give reasons must give regard to the overall reasoning process, read as a whole and without an eye attuned to error.[48] As Kirby J explained in Roncevich v Repatriation Commission[49] (citations omitted):
“Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”[50]
[46] Section 294(2) of the 1998 Act.
[47] Beale, 443.
[48] Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167.
[49] [2005] HCA 40; 222 CLR 115 (Roncevich).
[50] Roncevich, [64].
The appellant contends that the Arbitrator erred in failing to take into account the Workcover certificates of capacity issued by Dr Bala in April and June 2018. An Arbitrator has a duty to refer to the evidence relevant to the submissions advanced and to the conclusions reached. It is not, however, a duty to refer to every submission and every piece of evidence.[51]
[51] Huntsman Chemical Company Australia Pty Ltd v Narellan Pools Pty Ltd [2011] FCAFC 7, [44].
I have discussed above the lack of probative value of the certificates in question. That evidence is not material to the outcome in this case. Any failure on the Arbitrator’s part to specifically consider those certificates in respect of his determination of whether the exacerbation of the appellant’s right knee symptoms had ceased is not indicative of error in the Arbitrator’s reasoning or in his ultimate conclusion.
In the context of the Commission, and the Arbitrator’s obligations to provide brief reasons for his conclusions, reading the statement of reasons as a whole, I am satisfied that the Arbitrator has complied with his obligations in this regard. It follows that Ground Two of the appeal fails.
Ground Three
The appellant asserts that the Arbitrator further erred by failing to find that she suffered from conditions in her left knee and back as a consequence of the right knee injury. The submissions filed by the appellant indicate that this allegation of error is dependent upon the Arbitrator having erred in determining that the right knee exacerbation had ceased and that the exacerbation had abated in 2017. The appellant refers to the opinion of Dr Gehr that the appellant had an altered gait because of the right knee condition, and thus the left knee and back symptoms, caused by that altered gait, were a consequence of the right knee injury.
The Arbitrator was not in error in finding as he did with regard to the exacerbation of the right knee condition having ceased in 2017. That, in part, disposes of this ground of appeal. However, the appellant asserts that Dr Gehr’s explanation for the causal connection was logical and based on the evidence and, in the absence of contrary evidence, should have been accepted.
The Arbitrator placed no weight on the opinion of Dr Gehr because the conclusions reached were not based on a reliable history. The Arbitrator considered that the appellant’s mobility was more likely the consequence of the underlying progressive osteoarthritic condition in the right knee, given the brevity of the exacerbation. The Arbitrator rejected Dr Gehr’s opinion on causation of the back and left knee conditions because it was based on an incorrect history. In Paric v John Holland (Constructions) Pty Ltd,[52] the High Court said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence.”
[52] [1985] HCA 58; 62 ALR 85, [9].
It is incorrect to say that the evidence of Dr Gehr was unchallenged. Dr Bosanquet’s opinion was that the back and both knee conditions were not consequent upon the work related injury. Dr Bosanquet also pointed out that Dr Gehr had an incorrect history, upon which the view that both the left knee and the back were implicated in the work related injury was reliant.
For those reasons, it was open to the Arbitrator to reject the opinion of Dr Gehr.
The appellant has put forward no compelling reason as to why the Arbitrator erred in failing to find the conditions in the left knee and back were consequent upon the right knee injury. It follows that Ground Three of the appeal fails.
Ground Five
Ground Five alleges that the Arbitrator erred by failing to give consideration to the appellant’s reduced capacity that resulted from the right knee and the consequential conditions in the back and left knee.
The Arbitrator found that, before the claim for weekly payments commenced, the appellant had recovered from the effects of the exacerbation of the right knee condition. The Arbitrator further found against the appellant in respect of the allegation that the appellant suffered consequential conditions in her left knee and back as a result of the right knee injury.
For the reasons set out above, the Arbitrator’s findings in that regard were open to him and there is no reason to disturb those findings on appeal. As a consequence, the Arbitrator’s failure to consider those matters in the assessment of the appellant’s capacity for work was not an error or fact or law as alleged, and this ground of appeal fails.
Ground Seven
Ground Seven of the appeal maintains that the Arbitrator erred by failing to award the appellant weekly benefits in respect of the appellant’s right knee, left knee and back and by failing to order that the respondent pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act in respect of the appellant’s right knee, left knee and back.
As the respondent submits, this ground of appeal is substantially the same as Ground Five. As the Arbitrator’s findings in relation to the right knee, left knee and back were open to him, there is no reason to disturb those findings on appeal. It follows that the Arbitrator’s failure to consider those matters in respect of the claim for weekly payments and treatment expenses was not an error of fact or law as alleged, and this ground of appeal also fails.
Grounds Four and Six
The appellant alleges that the Arbitrator erred in failing to award her weekly compensation in respect of the right shoulder injury. The errors are said to be that the Arbitrator failed to consider the appellant’s incapacity and the reduction in the appellant’s earning capacity resulting from the undisputed right shoulder injury (Ground Four) and failed to provide reasons for his determination that the appellant had no entitlement to weekly payments (Ground Six).
The appellant refers to the evidence relied on by the Arbitrator, which consisted of:
(a) the certification by Dr Bala on 13 July 2018 that the appellant was fit for pre-injury duties, and
(b) Dr Sher’s opinion, which the Arbitrator thought “suggested” the appellant was fit for unrestricted duties except for restrictions on overhead lifting.
The appellant submits that Dr Sher’s opinion was restricted to a consideration of the appellant’s incapacity solely in relation to the right shoulder.
Given that the Arbitrator had found against the appellant in respect of all other allegations of injury and consequential conditions, the Arbitrator’s approach was undoubtedly correct.
The appellant says that in any event, Dr Sher did place restrictions on the appellant’s capacity. The appellant says that the Arbitrator’s view of Dr Sher’s evidence was not an accurate summation of Dr Sher’s opinion.
On 28 November 2018, Dr Sher performed a final review of the appellant’s right shoulder. He advised:
“From the perspective of the shoulder I have cleared her for unrestricted use of the arm but have suggested that she avoid lifting overhead for more than 2-5 kilograms …”.[53]
[53] ARD, p 220.
As part of his reasoning process, the Arbitrator noted that Dr Sher’s opinion that the appellant was fit for unrestricted duties was qualified by a limitation in overhead lifting.[54] The Arbitrator’s view of Dr Sher’s opinion was not inconsistent.
[54] Transcript of Reasons (T), Srirudrakantha v Homebush Out of School Hours 6591/19, 2 March 2020, T 19.1–4.
The appellant says that the Arbitrator failed to take into account the clinical note made by Dr Balakrishnan on 19 December 2018 that the appellant complained of aching in the right shoulder at that time. This is the only evidence that the appellant points to as evidence of a lack of capacity for work which it is said the Arbitrator failed to consider.
The respondent refers to s 32A of the 1987 Act which defines “suitable duties” and sets out the matters to which regard should be given in order to identify employment for which the appellant is suitable.
The appellant’s statement does not refer with any specificity to the physical requirements of her employment tasks, either in respect of the pre-injury duties or the duties she was performing from the time Dr Bala issued the certificate indicating she was fit for unrestricted duties. Ms Webster provides some evidence as to the work performed by the appellant after July 2018. Mr Christensen reported on 26 July 2018 that the appellant indicated that she was performing her pre-injury duties without issue.
It is hardly surprising that the Arbitrator does not refer to this evidence, as that evidence does not provide any assistance at all in respect of ascertaining her entitlement, if any, to weekly payments of compensation as a result of her right shoulder injury from 29 April 2019. The clinical note recorded by Dr Balakrishnan that the appellant complained of a sore shoulder on 19 December 2018 takes the matter no further in circumstances where the appellant does not complain of any difficulties with work at that time or at all during the period prior to the onset of other conditions that affected her ability to work.
The Arbitrator’s obligation to give reasons in accordance with s 294(2) of the 1998 Act is discussed above. The obligation was further discussed by Roche DP in Raulston v Toll Pty Ltd,[55] in which the Deputy President observed that an arbitrator must give reasons for preferring one conclusion to another. Acting Deputy President King SC in NSW Police Force v Hahn[56] considered the relevant authorities and arrived at the following helpful conclusion:
“To my mind the essential propositions are uncontroversial and the important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.”
[55] [2011] NSWWCCPD 25, [46].
[56] [2017] NSWWCCPD 51, [61].
The Arbitrator had limited evidence before him in respect of the issue of the effect of the right shoulder injury on the appellant’s work capacity. It is not surprising that his reasons were brief. The Arbitrator concluded that the appellant had not established that she was incapable of performing her pre-injury duties as a result of the right shoulder injury. Had the Arbitrator determined that the appellant was fit for her pre-injury duties, the reasons may not have been sufficient to show how he reached such a conclusion. The state of the evidence, as discussed by the Arbitrator, was such that there was a lack of evidence to assist in the determination of the relevant alleged limits on the appellant’s capacity to perform her former duties in the period commencing April 2019. The deficiencies in the evidence are apparent from the Arbitrator’s discussion of the evidence and it is apparent that such deficiency was the reason for the Arbitrator’s conclusion.
It follows that Ground Four and Ground Six of the appeal fail.
CONCLUSION
The appellant has failed to establish error on the part of the Arbitrator and the appeal fails. The Arbitrator’s Certificate of Determination is therefore to be confirmed.
DECISION
The Arbitrator’s Certificate of Determination dated 2 March 2020 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
21 July 2020
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