Stanshall v The Urban Fringe Kings Langley Pty Ltd - [2021] NSWPICPD 23

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Stanshall v The Urban Fringe Kings Langley Pty Ltd [2021] NSWPICPD 23
APPELLANT:	Kirralea Stanshall
RESPONDENT:	The Urban Fringe Kings Langley Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-6429/20
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	20 January 2021
DATE OF APPEAL DECISION:	26 July 2021
CATCHWORDS:	WORKERS COMPENSATION – Mason v Demasi [2009] NSWCA 227 and Michelle Gai Weston t/as Northmead Beauty Therapy v Szenczy [2019] NSWWCCPD 38 distinguished; appellant bore onus in respect of alleged consequential condition; discretion of first instance decision-maker to weigh evidence; no error
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Baran, counsel
Walker Law Group
Respondent:
Ms K Balendra, counsel
Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 20 January 2021 is confirmed.

INTRODUCTION AND BACKGROUND

The dispute in this matter takes place within a very narrow ambit. The appellant applied for a referral to an Approved Medical Specialist to determine whole person impairment for the purposes of a claim under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The Application was made with respect to both upper extremities and the neck/cervical spine. The respondent both below and on appeal accepted that the application with respect to both upper extremities ought be referred to an Approved Medical Specialist, but opposed the appellant’s claim with respect to her neck/cervical spine. It was this dispute that the Arbitrator, as he then was, was called upon to determine.

TRANSITIONAL MATTERS

After the current appeal was lodged, the Workers Compensation Commission was abolished.[1] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. In view of his appointment at the time of his decision, for convenience, I will refer to the Member in his capacity as an Arbitrator.
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; 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 ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

There is quite a deal of evidence in this matter which is referred to later in this decision within the body of the Arbitrator’s reasons and the parties’ submissions on this appeal. However, given the narrow compass of this dispute, which relates to whether or not the appellant’s neck/cervical spine symptoms relate to her accepted work injuries, I set out in this section of this decision relevant extracts from the evidence as they relate to this issue.
In Dr Endrey-Walder’s report dated 27 March 2018, he recorded: “[i]n or about 2014 she had a heavy fall at work hurting her neck, for which she had ongoing physiotherapy treatment, ‘I would get a little headache every now and then, nothing like now’.”[3]
[3] Application to Resolve a Dispute (ARD), p 31.
In the clinical notes of the Southlands Medical Centre, there is an entry on 30 August 2013 by Dr Cheong, which recorded:
“migraines
just taking nurofen now
headaches - some cervical neck mm spasm
p.forte for night
apply heat to neck mm
see how she goes over weekend”.[4]
[4] ARD, p 188.
The next clinical entry that refers to neck pain is the entry dated 23 November 2015, in which it is recorded that the appellant was:
“concerned about her R shoulder
painful past few months, when at work
no stiffness
also when she lays on it at night
has chronic neck pain and headahces [sic], not sure if may be contributing factor
no history trauma”.[5]
[5] ARD, p 192.
The findings on examination recorded:
“R shoulder - no obvious deformity, swelling
painful arc at 180 degrees also painful resistened [sic] shoulder abduction, and resisted supination
some pain int rotation also
neck -some tenderness over R cervical paraspinal muscles
good ROM c-spine”.[6]
[6] ARD, p 193.
In his report dated 30 September 2020, Dr Panjratan said the following:
“Ms Stanshall continues to have physiotherapy once a week for the right shoulder and neck. The neck problem has been intermittent.
This is the first time there was any mention of the neck. She says that she mentioned it to her general practitioner and Dr Warren Kuo. She could not recall when the neck problem first started, or when she first pointed it out, but said it has been going on for a while.
The pain starts at the root of the neck and goes upwards and behind the ear at the mastoid process. It is worse on the right as compared to the left. When the pain persists, it leads to migraine and she suffers from migraine about twice a week. The migraines usually last for 2 days but can extend up to 5 days.
Ms Stanshall is having physiotherapy and is on medication for the neck pain.
…
She is having physiotherapy for the neck”.[7]
[7] Reply, p 39.
In his report dated 14 December 2020, Dr Panjratan recorded the following with respect to the appellant’s pre-injury neck complaints:[8]
“I also noted a statement of the applicant that sometime in 2014 she fainted at work and an ambulance was called where she was taken to Blacktown Hospital where she was told she fainted due to low blood pressure and she had a bit of a sore neck for a couple of days and she did not require any sort of ongoing treatment to the neck and had no ongoing issues with the neck at all until she sustained the work injury. The neck began to cause her significant problems.
You point out the clinical records of Southlands Medical Centre. Dr Trishuli Harinesan of Southlands Medical Centre reported on 17 February 2020 that the applicant’s longstanding chronic shoulder pain is now radiating into neck, causing spasm of neck muscles and that she would strongly benefit from physiotherapy sessions focusing on both regions. You have referred me in particular to the following:
·        Reports of muscle spasm to the cervical/neck with headaches on 30 August 2013 which is over 2 years prior to the contraction of the right shoulder injury. The applicant was advised to apply heat packs.
This is before the claimed neck injury.
There was contemporaneous reporting of symptoms to the cervical spine on 23 November 2015 and the claim was made with tenderness of the right cervical region noted. However, there was a good range of motion identified.
·        Dr Steve Cheong reported on 13 April 2018 that the applicant had neck and left shoulder pain to which the physio thought was compensated pain.
·        There is reference to an x-ray of the cervical spine dated 6 February 2020 which noted no pathology” (emphasis in original).
In arriving at his conclusion, Dr Panjratan said: “I have also taken into account that she reported symptoms to the neck in 2013 and 14 as referred to above.”[9]
[8] Application to Admit Late Documents (AALD), 16/12/2020, p 22.
[9] AALD, 16/12/2020, p 23.
Additionally, the appellant provided a statement in support of her claim which can be found at page 1 of the Application to Resolve a Dispute. In that statement the appellant describes the pain and disability that she suffers in both of her shoulders and neck. Specifically regarding her neck she says as follows:
“I have never before had any problems with the shoulders at all besides that of the work injury. Regarding my neck, there was an incident at work sometime in 2014 where I fainted. They called an ambulance and I was taken to Blacktown Hospital. They told me that I fainted because of low blood pressure. I think I had a bit of a sore neck for a couple of days after that, but I didn’t require any sort of ongoing treatment with the neck and I had no ongoing issues with the neck at all until I sustained the work injury when my neck began to cause me significant problems.
The insurer has been paying for treatment for my neck. They are paying for physio treatment for the neck. I have back-to-back physio sessions - one for the neck and one for the shoulders.”[10]
[10] Appellant’s statement 4 November 2020, ARD, p 4, [19]–[20].

THE ARBITRATOR’S REASONS

The Arbitrator gave ex tempore reasons on 18 January 2021, which were confirmed in a Certificate of Determination dated 20 January 2021. He noted the appellant suffered injury to her right shoulder arising out of and in the course of her employment with the respondent as a hairdresser,[11] and later developed symptoms in her left shoulder. The Arbitrator acknowledged that the shoulder injuries were accepted by the respondent, and it remained in dispute whether the medical condition of the appellant’s cervical spine resulted from the injury.[12]
[11] Stanshall v The Urban Fringe Kings Langley (6429/20, 20 January 2021) (reasons), 1.34–1.37.
[12] Reasons, 2.19–29.
The Arbitrator noted that counsel’s submissions were primarily concerned with the question of whether the medical practitioners who supported the respective positions of the parties had a fair climate for their opinions.[13] Submissions were made before the Arbitrator about the extensive clinical notes recorded by the appellant’s general practitioner at the Southlands Medical Centre.[14] The Arbitrator recounted the appellant took him to various parts of Dr Endrey-Walder’s and Dr Kuo’s evidence which supported a causal nexus between the right shoulder injury and the symptoms in the cervical spine. The appellant’s counsel relied upon Kumar v Royal Comfort Bedding Pty Ltd,[15] and Kooragang Cement Pty Ltd v Bates.[16] The Arbitrator applied those authorities, approaching the matter on the basis that it was only necessary for the appellant to prove that the work injury materially contributed to the cervical symptoms “for her to establish causal nexus”.[17] In view of the claim being for permanent impairment compensation only, it was the Arbitrator’s function to determine injury or the nature of the injury or consequential medical condition. The Arbitrator observed the issue of permanency of the injury and whether a deduction should be made was solely within the province of an Approved Medical Specialist.
[13] Reasons, 3.12.
[14] Reasons, 3.15.
[15] [2012] NSWWCCPD 8.
[16] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[17] Reasons, 3.28–34.
The Arbitrator acknowledged that whist there were aspects of Dr Panjratan’s report of 14 December 2020 that were unsatisfactory, Dr Panjratan was the only doctor who had a history of the appellant suffering neck pain prior to the onset of right shoulder pain and well before she suffered restriction of movement in her right shoulder.[18] The Arbitrator noted that the appellant put one statement on. Whilst no issue was taken with the statement, what was problematic was that there was no attempt to address the issue of the prior neck condition in that statement. He held the appellant did not deal with the notes of Dr Cheong that she had headaches with some cervical neck pain and muscle spasm in August 2013 or the history to Dr Boyd on 23 November 2015 that she had chronic neck pain and headaches. The Arbitrator held there was no explanation for her failure to address these matters in her written evidence.[19]
[18] Reasons, 11.11–18.
[19] Reasons, 11.18–28.
The Arbitrator noted the history given to Dr Panjratan by the appellant that she suffered migraines twice a week for two days, but each migraine can last for five days. The Arbitrator inferred “from the note of 2015” that the appellant “had some neck pain in association with migraine or perhaps migraine in association with neck pain prior to her injury.” The Arbitrator held that neither Dr Kuo nor Dr Endrey-Walder dealt with this aspect of the case as neither of them had an appropriate history.[20] He continued:
“In the absence of this history their opinions as to the cause of the [appellant’s] present neck symptoms are, in my opinion, of little weight. While Dr Panjratan’s report is at times ambiguous and his reasoning is not always clearly explained he does have the advantage of having engaged with the fact that the [appellant] had some neck pain before the onset of her shoulder condition.
Mr Baran submitted that it was spurious to attempt to draw a connection between the [appellant’s] neck pain and migraines, but it seems to me clear from the doctors notes in 2013 and 2015 and from Dr Panjratan’s report that the [appellant] suffers from neck pain and migraine and that one is associated with the other. It is possible, of course, that the [appellant’s] neck pain and migraine dissipated after 2015 and re-emerged again in 2015 after she had increasing problems with movement or restriction of movement in her right and then in her left shoulder. It is also possible that the previous neck/migraine problem was aggravated by the effect of the work injury. However, as the [appellant] does not address the issue of her previous neck pain; that is the history contained in the notes of the Southlands Medical Clinic in her written evidence, these possibilities remain speculation. Without a history of the prior neck pain the [appellant’s] doctors opinions are not compelling. If it was necessary to do so I would prefer the opinion of Dr Panjratan on the issue of the neck.”[21]
[20] Reasons, 11.29–12.3.
[21] Reasons, 12.5–32.
The Arbitrator found the appellant had not established on the balance of probabilities that her cervical/neck symptoms resulted from the injuries to her right shoulder, the injury to her left shoulder or the medical condition of the left shoulder.
The Certificate of Determination issued on 20 January 2021 records the determination of the Commission as follows:
“1.     The applicant suffered injury to her right shoulder arising out of and in the course of employment and a consequential medical condition of her left shoulder as a result of that injury.
2.     The applicant has not established on the balance of probabilities that she suffered a consequential medical condition of her neck as a result of the accepted right shoulder injury.
3.     Remit the matter to the Registrar for referral to an approved medical specialist to certify the degree of whole person impairment of both upper extremities (shoulders) as a result of injury to the applicant’s right shoulder which is deemed to have occurred on 1 November 2015.
4.     Approved medical specialist to have access to the Application, the Reply and the Applications to Admit Late Documents dated 17 December 2020 and 24 December 2020 and the documents attached to each.
5.     Liberty to amend the deemed date of injury to reflect the date of claim for permanent impairment compensation if the parties agree that such a course is appropriate.”
The appellant appeals against this determination.

GROUNDS OF APPEAL

The appellant pursues two grounds of appeal in this matter:
(a) the Arbitrator erred in law when determining the claim by reference to histories given to doctors, namely by failing to apply the principle as articulated in Mason v Demasi[22] (Ground One), and
(b) the Arbitrator erred in determining, contrary to the evidence, that the appellant had failed to discharge the onus of proof to prove that she had a consequential condition of her cervical spine (Ground 2).

SUBMISSIONS

Ground One

[22] [2009] NSWCA 227 (Demasi).

Appellant’s submissions

The appellant commences her submissions by noting that her claim sought lump sum compensation pursuant to s 66 of the 1987 Act and part of that process involved her being referred for a medical assessment of whole person impairment by an Approved Medical Specialist. The appellant says that the left and right upper extremities (shoulders) were not resisted by the respondent. The appellant flags that the sole issue in dispute before the Arbitrator was the existence of a consequential condition in her cervical spine.
The appellant sets out various parts of her evidence and discusses the reports of Dr Panjratan before making submissions on the findings of the Arbitrator as to the existence of a consequential neck condition. It is convenient to briefly set out the details of each.

The appellant’s evidence

The appellant refers to her statement of 4 November 2020. She says she commenced with the respondent as an apprentice hairdresser in March 2012. She describes the nature and conditions of her employment as repetitive and says the business was short staffed. She says that extra staff were not hired and she was required to work harder than usual.[23]
[23] Appellant’s submissions, [5].
The appellant recounts that by the end of 2015 she began to experience pain in her right shoulder and she consulted her general practitioner in November of 2015. She says that the condition was originally treated conservatively, but the pain grew worse over time, and by April 2017, she had severe restrictions in her right shoulder and “the workload was impossible for her to handle”.[24] Her employment was terminated “[b]y August 2017”.
[24] Appellant’s submissions, [6]–[7].
The appellant recalls undergoing surgery on 26 October 2017 having an arthroscopy of the right shoulder with subacromial decompression, capsular release and postoperative physiotherapy, as well as the administration of injections. She says she had other therapy including hydrotherapy. By March 2018, the appellant said her right shoulder had still not resolved and she underwent a shoulder manipulation by Dr Kuo. She says there was some relief, but the pain returned. Over time, the appellant claims she noticed pain in her neck and left shoulder. She made complaints to general practitioners and physiotherapists. The appellant submits the left shoulder became chronic due to overuse of the left hand and arm, making basic activities including domestic activities very difficult for her to undertake.[25]
[25] Appellant’s submissions, [8].
The appellant said she was ultimately diagnosed with bursitis of the left shoulder. Her neck, consistent with the increase in symptomology with the left shoulder, became painful and was sore for most of the time and she required physiotherapy. The appellant refers to her claim for whole person impairment and the dispute letters confining the issue to the cervical spine.
The appellant refers to Dr Endrey-Walder’s assessment of whole person impairment, and submits the doctor formed the view that the neck pain appeared to be secondary to pain radiating from her right shoulder towards her neck, giving rise to muscle spasms, which in turn, caused her migraine headaches. She says the doctor found that the right shoulder was impacting on the right side of her neck in the symptomatic sense, given the length of time that the right shoulder had been symptomatic.[26]
[26] Appellant’s submissions, [9].

The appellant says that Dr Endrey-Walder also considered a report of Dr Panjratan dated 29 November 2019, who disagreed with Dr Endrey-Walder’s observations. She notes the final whole person impairment of the right shoulder, left shoulder and neck assessed by Dr Endrey-Walder was 19%. The appellant also refers to a physiotherapist’s, Jenny Voller’s, report in which Ms Voller took a history of cervical spine pain in addition to the shoulder pain. The appellant says her general practitioner Dr Cheong, referred her for a neck ultrasound on 20 April 2018. By 26 August 2018, the appellant was still complaining of cervical spine pain and headaches. She says these complaints continued through until the current time.
The appellant concedes it is true she had migraine headaches in the past in the right frontal region. She says, however, that after the initial injury neck pain is well documented in the general practitioner’s notes.

Reports of Dr Panjratan

The appellant submits the first report of Dr Panjratan does not deal with the cervical issue. She says the second one tangentially did, where a neck ultrasound was recorded as being undertaken, but the doctor made no specific comment about it. The appellant contends Dr Panjratan then saw her on 9 September 2020, and provided a report dated 30 September 2020, in which he describes the neck problem as being intermittent. The appellant notes the doctor’s reference to this being the first time that the neck had been mentioned. The appellant submits she is recorded as telling the doctor that she had mentioned it to her general practitioner and to Dr Kuo and she could not recall when the neck problem first started or when she pointed it out. The appellant maintains it had been going on for a while.
The appellant refers to Dr Panjratan’s record that the pain started at the root of the neck going up behind the ear at the mastoid process, and when the pain persists, that leads to a migraine. She claims she suffers from about two migraines a week. Reference is made to the doctor finding nothing objectively wrong with the neck which is confirmed on images. The appellant specifically refers to Dr Panjratan’s comment: “the nature and conditions of work caused a primary condition in the right shoulder with a consequential problem to the left shoulder and possibly neck.”[27]
[27] Appellant’s submissions, [18].
The appellant notes that Dr Panjratan, with respect to the neck, could not provide a clear diagnosis for the headaches, but did say that cervical spine X-rays on 4 February 2020 with the clinical history of chronic neck pain showed loss of usual cervical lordosis which can occur with underlying muscle spasm which could contribute to her symptoms. The appellant submits that although Dr Panjratan would not commit himself to a particular position, and found the neck issue hard to determine, he said that as a rule of thumb there can be some secondary mild neck issues with neck pain, but not to the extent of causing headaches and migraine, and not to the extent complained of by the appellant. The appellant argues that in any event, Dr Panjratan still assessed the cervical spine and gave a 0% whole person impairment. The appellant also notes Dr Panjratan did not comment on Dr Endrey-Walder’s report.
The appellants submits that Dr Kuo, who was her treating surgeon, but had not treated her neck, noted complaint of neck pain. The appellant notes Dr Kuo’s agreement that causation was difficult. The appellant refers to Dr Kuo’s opinion that there was no question that with both shoulders in pain and undergoing treatment, there can be secondary overload to the peri-scapular and neck muscles. The appellant refers to the doctor’s suspicion that the pain in the neck was compensatory in relation to posture and imbalance.[28]
[28] Appellant’s submissions, [22].

The findings of the Arbitrator

The appellant notes the Arbitrator identified, in a number of areas in his reasons, the fact that histories of neck pain had not been provided to the doctors, particularly the medico-legal doctors, or that prior histories that had been given to a general practitioner had not been explained or otherwise dealt with in her statement.[29] The appellant submits the failure to provide a history to doctors about the neck pain should not have led the Arbitrator to conclude that the neck pain, being a consequential condition, was speculative.[30] The appellant argues that consistent with the decisions of Demasi, Container Terminals Australia Limited v Huseyin,[31] and Michelle Gai Weston t/as Northmead Beauty Therapy (ABN 83824751583) v Szenczy,[32] the Arbitrator was duty bound to approach a failure to give the history of prior neck pain to doctors with caution.[33]
[29] Appellant’s submissions, [23].
[30] Appellant’s submissions, [24].
[31] [2008] NSWCA 320 (Container Terminals).
[32] [2019] NSWWCCPD 38 (Szenczy).
[33] Appellant’s submissions, [25].
The appellant submits the Arbitrator was required to consider, amongst other things, that the health professional who took the history had not been cross-examined and no evidence was available about the circumstances of the consultation, including how the history was obtained, the period of time devoted to that exercise, and the accuracy of the recording, together with other factors identified in Container Terminals. The appellant submits the Arbitrator should have expressed caution, not absolute criticism, at the fact the consequential pain in the neck, spasms and restriction had not been disclosed on prior occasions. The appellant draws attention to the disclosure of neck pain to Ms Voller on numerous occasions and the appellant’s statement in which she says she had a conversation with Dr Kuo. The appellant argues the Arbitrator could not treat an omission of history to be “decisive”, as this “was against principle”.[34] The appellant contends that “[r]ecent invention was never asserted by the respondent.”
[34] Appellant’s submissions, [26].
The appellant submits that the Arbitrator’s description of that evidence as hearsay and probably evidence which was not probative was “contrary to the way the Commission operates”, that the rules of evidence do not apply.[35] The appellant contends it was a matter of weight, there was no attack on her credit.
[35] Appellant’s submissions, [26].
Further, the appellant argues there was no evidence relied upon by the respondent to demonstrate the conversation between Dr Kuo and the appellant did not take place, or that the appellant’s recollection was mistaken. In any event, it is asserted that it is entirely consistent with Dr Kuo’s final report.
Referring to a consultation of 23 November 2015 with Dr Boyd, the appellant contends the Arbitrator made much of this consultation, and “gave rise to the reasonable and probabl[e] inference that the right shoulder pain had … contributed to neck pain and headaches.”[36] Importantly, the appellant claims, that entry did “not deal with simply a pure migraine where the [a]ppellant suffered signs and symptoms of nausea or photophobia, rather it was pain reported consistently and at the same time as excessive pain in the right shoulder.” The appellant submits the Arbitrator was required to express considerable caution regarding the appellant’s omission to mention neck pain when initially providing histories to Drs Endrey-Walder and Panjratan in circumstances where there was a clear track record of reports of neck pain associated with the shoulder injuries and headaches, but not migraines, in the general practitioner’s notes, physiotherapist’s records and letter to the general practitioner, and dealt with by the two medico-legal experts. The appellant contends the evidence of Dr Kuo showing the connection between the consequential condition in the neck and the shoulder injuries was expressly dealt with by the doctor, a treating specialist who had performed surgery and a manipulation on the appellant. The appellant says it is unclear why she did not report her neck pain to Dr Endrey-Walder as referred to by the Arbitrator, but the Arbitrator was required to consider the application based on all of the evidence and not use the failure to provide a history to some doctors but not others as a vehicle to extinguish her claim for a consequential condition. The appellant argues that to do so is not expressing and putting into place the cautionary conduct required as set out in Demasi.
[36] Appellant’s submissions, [27].
The appellant argues it was wrong for the Arbitrator to find that Dr Panjratan was the only doctor who had a history of neck pain prior to the onset of right shoulder pain, as well as prior to restriction of movement in the right shoulder. It is claimed these are documented in the general practitioner’s notes, however, the Arbitrator found that the prior episode of neck pain in 2013 was of no consequence. The appellant submits it is unclear why this was relevant.[37]
[37] Appellant’s submissions, [28].
The appellant contends that she “did not have to deal with the notes of Dr Cheong and a cervical neck pain and muscle spasm in 2013 as there was no clear diagnosis and no time off work or studies recorded.”[38] The appellant asserts it was incorrect to conclude that the history of neck pain had been provided to Dr Panjratan in association with migraines. It is said that ultimately, the Arbitrator found that in the absence of the history of neck pain, the opinions of Dr Endrey-Walder and other medical practitioners who provided documentation on her behalf, were to be given little weight.
[38] Appellant’s submissions, [29].
The appellant reiterates the Arbitrator should have exercised extreme caution in the circumstances of rejecting every single piece of medical evidence because of this one omission. She argues the Arbitrator was required to look at all the notes and to isolate out what were true migraines on the one hand, being neurological, and what were complaints associated with shoulder pain with the consequential neck pain on the other. The appellant stresses that the “case was about pain even if there were prior migraines the pain was not and he asked the wrong question it was the pain and spasms that were the consequential condition.”[39] The appellant submits the Arbitrator was required to carefully consider the reports of Drs Kuo, Endrey-Walder and Panjratan and to caution himself that to merely dismiss a claim because of a delayed history concerning neck pain was “contrary to principle and entirely inconsistent with a recent invention.” The appellant points out there is an internal contradiction between what Arbitrator found and what appears to be a complete acceptance of the appellant’s claim of a connection between the shoulder injury and the neck pain.
[39] Appellant’s submissions, [30].
In conclusion, the appellant submits the Arbitrator made a material error of law by failing to apply the principles in Demasi, and to ensure that omissions regarding the provision of histories could not overtake the significance and importance of contemporaneous complaints of neck pain, opinions of a scientific nature regarding the onset of neck pain connected with two injured shoulders, as well as complaints recorded by physiotherapists over time. Further, she argues, the fact that a history was delayed did not in any way disable experts from providing their opinions.

Respondent’s submissions

The respondent refers to the principle set out at [2] by Basten JA in Demasi, and the adoption of the principle in Szenczy. It says the principle that arises from Demasi is that inconsistent accounts given to health professionals should be treated with caution.[40]
[40] Respondent’s submissions, [3].
Reference is made to the appellant’s submissions at [26].[41] The respondent asserts that the appellant has misstated the crux of the Arbitrator’s criticism. It says that, as was made clear in the reasons, the determinative issue in the Arbitrator’s conclusion was not a balancing of inconsistent accounts, but an absence of expert opinion addressing a prior history of complaints of pain in the neck and muscle spasm. The respondent quotes the following passage from the reasons:
“Neither Dr Kuo or Dr Endrey-Walder deal with this aspect of the case as neither of them have an appropriate history.
In the absence of this history their opinions as to the cause of the applicant’s present neck symptoms are, in my opinion, of little weight. While Dr Panjratan’s report is at times ambiguous and his reasoning is not always clearly explained he does have the advantage of having engaged with the fact that the applicant had some neck pain before the onset of her shoulder condition.”[42]
[41] Respondent’s submissions, [4].
[42] Reasons, 12.1–11.
The respondent submits the basis of the Arbitrator’s findings are clear. It contends Dr Panjratan was the only doctor that provided an opinion which squarely dealt with the appellant’s pre-injury complaints of neck pain and spasm. Reference is made to the Arbitrator’s comment “[w]ithout a history of the prior neck pain, the [appellant’s] doctors opinions are not compelling.”[43]
[43] Reasons, 12.29–30.
The respondent refers to the appellant’s suggestion[44] it was “entirely wrong” for the Arbitrator to have found that Dr Panjratan was the only doctor who had a history of her suffering neck pain as well as prior restriction of movement in the right shoulder, and her suggestion those complaints were recorded in the general practitioners’ notes. The respondent submits that what the Arbitrator found was that Dr Panjratan was the only doctor who provided an opinion addressing these earlier complaints, not that he was the only doctor who recorded a history of prior complaints.[45] It adds that this also was not a matter that the appellant addressed in her statement. The respondent adopts the Arbitrator’s reasons[46] where it is said: “there is no explanation for her failure to address these matters in her written evidence”, and submits the appellant concedes[47] that it is “unclear why the appellant did not report her neck pain to Dr Endrey-Walder”.
[44] At [28] of the appellant’s submissions.
[45] Respondent’s submissions, [7].
[46] Reasons, 11.27.
[47] At [27] of her submissions.
Referring to the appellant’s submissions at [30], the respondent submits the appellant has misdescribed the exercise the Arbitrator is required to perform. It submits that the Arbitrator is not required to determine what it says is essentially a medical issue, namely, whether certain complaints are “true migraines” or “complaints associated with shoulder pain with consequential neck pain”. The respondent contends it was not for the Arbitrator to seek to differentiate between the two types of complaints, that was an exercise for the appellant’s doctors and the appellant herself. The respondent submits that the appellant failed to address this in her own evidence, and her doctors did not address it in their reports. It says that, as such, the Arbitrator was correct in his approach of evaluating different reports.[48] The respondent quotes the reasons at 12.29, where the Arbitrator found: “[w]ithout a history of the prior neck pain the [appellant’s] doctors opinions are not compelling.”
[48] Respondent’s submissions, [10].
They respondent concludes that there was no material error of law on the part of the Arbitrator, “as any error based on the principles found in Demasi simply does not arise.”[49]
[49] Respondent’s submissions, [11].

Appellant in reply

The appellant makes several points regarding the decision of Szenczy. She says that that appeal was instigated by the employer, not the worker. The appellant also says the worker claimed a primary injury and consequential orders for the payment of medical expenses and was successful. She says my observations in that decision are entirely consistent with why this appeal should be allowed.
The appellant submits that in the present case, the Arbitrator did not observe the principles he was required to apply in determining the issues before him. She argues the Arbitrator was required to determine whether or not there was a consequential condition in the cervical spine from either one or both of the two accepted shoulder injuries. Instead, the Arbitrator made a significant error of principle on two bases. Firstly, the Arbitrator said: “without a history of the prior neck pain, the [appellant’s] doctors opinions are not compelling” (emphasis by the appellant).[50] The appellant says her onus of proof was not predicated upon providing opinions to the Arbitrator which were “compelling”. Rather, the jurisdiction of the Arbitrator as identified in Szenczy correctly states the law. The appellant relies on my observation in Szenczy that the Commission does not abdicate its responsibility to an expert; an expert’s opinion cannot be determinative, particularly in relation to ultimate facts.
[50] Appellant’s submissions in reply, [3].
The appellant submits the respondent’s contention that neither Drs Kuo nor Endrey-Walder dealt with this aspect of the case as neither of them had “an appropriate history” is incorrect. She asserts Dr Endrey-Walder took a brief, but accurate, history of neck pain in his report that was in evidence, finding it to be secondary to pain radiating from her right shoulder towards the neck giving rise to muscle spasms which in turn caused her migraine headaches. Thus, the appellant submits, there was pathology secondary to the admitted right shoulder injury.
Dr Kuo, whilst noting causation was difficult, took a history and observed that as at 6 April 2020, the appellant was still complaining of some neck pain. The doctor observed there was no question that with both shoulders in pain and receiving treatment that there could be secondary overload to the peri-scapular and neck muscles. The appellant argues the doctor found the pain in the neck was compensatory in relation to posture and imbalance. She says the neck pain was not directly caused by work, but as Dr Kuo pointed out, it was secondary overload to her neck muscles in compensating for her shoulder work related injury.[51]
[51] Appellant’s submissions in reply, [5].
The appellant submits that there was no basis to support the Arbitrator finding “little weight” in respect of the two doctors’ opinions. The appellant submits that two highly experienced medical practitioners, one of them a treating doctor, supported a connection to the neck pathology from the left and right shoulder injuries. Thus, the appellant submits, the respondent’s observations referring to the Arbitrator’s ultimate determination that there was no history of prior neck pain and that the appellant’s doctors’ opinions were not compelling, mis-stated the onus of proof and was factually wrong.[52] She continues:
“It also follows that the submissions about the totality of all the other evidence referred to by the [a]ppellant in her submissions of each and every time the [a]ppellant has complained of neck pain of and connected to complains [sic] about the shoulders have been effectively excluded by the Arbitrator which is inconsistent with his function as referred to in [Szenczy].”[53]
[52] Appellant’s submissions in reply, [6].
[53] Appellant’s submissions in reply, [7].
The appellant reiterates that the Arbitrator was engaging in speculation when he said it was unclear why the appellant did not report her neck pain to Dr Endrey-Walder. The appellant submits this is “contrary to principle particularly in civil claims”.[54] She relies on the following passage from Australian Securities and Investments Commission v Hellicar:[55]
“Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard.”
[54] Appellant’s submissions in reply, [8].
[55] [2012] HCA 17; 247 CLR 345; 86 ALJR 522; 286 ALR 501, [165].

With respect to the issue of migraines, the appellant argues that what was important was not so much the migraines, “but the fact that a number of entries by the doctors and allied health professionals together the [sic] medico-legal doctors made it abundantly clear, whether there be migraines or not, that the [a]ppellant was suffering pathology in her cervical spine (pain) which had a causal connection from the left and right accepted shoulder injuries.”[56] That, the appellant submits, was sufficient.

Ground Two

[56] Appellant’s submissions in reply, [9].

Appellant’s submissions

The appellant’s submissions on this ground commence by noting that she had provided a thorough and comprehensive statement. She adds that Dr Kuo had provided an opinion about the connection between the shoulder injuries and neck pain. She contends there was a clear difference in symptoms between “ordinary migraines on the one hand, and associated neck pain on the other”. The appellant submits that Drs Kuo, Endrey-Walder and Panjratan provided opinions, regardless of when the history of neck pain was provided, that there was a sufficient connection between the shoulder injuries and the symptomatology in the neck being caused by the shoulder injuries. She also refers to the series of complaints about neck pain made to the physiotherapist.[57]
[57] Appellant’s submissions, [32].
The appellant argues the Commission “is required to determine the case within the prism of the constrains [sic, constraints] under which it operates which is to achieve the statutory purpose of a quick, just and cheap disposition of workers compensation disputes”.[58] She asserts she was not required to place anything further in evidence to meet the balance of probabilities that the neck pain, as opposed to migraines “had their genesis as symptoms of the two seriously injured shoulders”. The appellant concedes the Arbitrator correctly identified the authorities at page 3 of his reasons, but argues that the Arbitrator did not apply them correctly. The appellant says that the fall in 2013 was correctly held to be inconsequential. She argues “the complaint of neck pain came on at a time which was consistent with florid symptomatology in the right shoulder, and subsequently thereafter in the left, as identified in the general practitioner’s notes on 23 November 2015”.[59]
[58] Appellant’s submissions, [33].
[59] Appellant’s submissions, [33].
The appellant refers to the application of the principle in Luxton v Vines[60] in the Commission. She submits that “there was a more probable inference than not that neck pain (not migraines) was an associated symptom of and relating to the damage to the right shoulder and the consequential overuse of the left shoulder.”[61] The appellant argues the “rational and probable inference”, that should have been drawn was that the symptoms of neck pain and spasms (not migraines) had their cause in the two accepted injuries to the left and right shoulders. She concludes that there was a “substantial amount” of evidence on which she was entitled to rely, and that she had discharged her onus of proof “while proving on the balance of probabilities her consequential condition and the Arbitrator should have so found”.[62]
[60] [1952] HCA 19; 85 CLR 352, [8].
[61] Appellant’s submissions, [35].
[62] Appellant’s submissions, [36].

Respondent’s submissions

The respondent refers to the appellant’s contention that there was evidence suggesting a connection between the shoulder injuries and her neck pain. The respondent accepts that the appellant provided evidence to support this, but argues there was no evidence from the appellant herself that differentiated between a prior history of pre-injury neck and post-injury neck pain. The respondent submits the only report that did so was the report of Dr Panjratan.[63]
[63] Respondent’s submissions, [12]–[13].
With respect to the appellant’s submission that “she was not required to place anything further before the Commission to meet the balance of probabilities that the neck pain as opposed to migraines … had their genesis as symptoms of the two seriously injured shoulders”, the respondent submits that once the issue of causation was squarely raised by the report of Dr Panjratan, it was incumbent on the appellant to address it. The respondent argues that as there was an absence of evidence to address this issue, the Arbitrator correctly relied upon the only evidence that did address the issue, being the report of Dr Panjratan.[64]
[64] Respondent’s submissions, [14].
The respondent concludes by submitting the Arbitrator did not err in finding that the appellant had not established on the balance of probabilities that her cervical/neck symptoms resulted from the injuries to her right shoulder or the medical condition of her left shoulder.[65]
[65] Respondent’s submissions, [15].

Appellant in reply

The appellant says that although the respondent now conceded that there was evidence to support the connection between the shoulder injuries and the neck pain suffered by her, the remainder of the respondent’s submissions at [13] do not withstand analysis having regard to the “extensive amounts” of evidence she has identified in her submissions. The appellant reiterates that evidence was clearly post-injury and clearly showed neck pain following the first injury and thereafter to the other shoulder with neck pain. The appellant argues the respondent’s case at first instance was not based upon a pre-existing identifiable neck condition which was present prior to, during and after the shoulder injuries which were sustained.[66]
[66] Appellant’s submissions in reply, [11]–[12].
The appellant then proceeds to address the respondent’s contention that only Dr Panjratan provided any opinion of worth regarding the neck. The appellant argues that the respondent has not grappled with all of the other evidence of a consequential condition of neck pain outside of that referred to by the “medico-legal doctors”. She further asserts that the respondent has mistakenly submitted that Drs Kuo and Endrey-Walder did not take a history of neck pain and that the only evidence on that topic was that of Dr Panjratan. The appellant submits this incorrectly states the evidence before the Arbitrator, and that the respondent had not addressed all of the evidence pointed out by the appellant in her submissions.
The appellant maintains the Arbitrator made a number of errors as identified in her initial submissions. She asserts that she has discharged her onus of proof and demonstrated that she had a consequential condition in her cervical spine and pathology, which was caused by the left and right shoulder injuries, which were admitted by the respondent.[67] The appellant reiterates that the contention that the Commission “should reject a case simply because of differences in history taking and find no consequential condition is foreign to the jurisprudence of this area of the law, so is the need to have opinions which are compelling.”[68] She asserts the Commission can and should be entitled to draw inferences and weigh all the evidence in arriving at a result. She contends this did not occur and the respondent’s case should be rejected.
[67] Appellant’s submissions in reply, [15].
[68] Appellant’s submissions in reply, [16].

DISCUSSION

For an appeal to succeed, the appellant must establish that the decision was affected by a relevant error of fact, law or discretion.[69]
[69] Section 352(5) of the 1998 Act.

As to Ground One

The appellant asserts that the Arbitrator made a material error of law by failing to apply the principles in Demasi. In order to evaluate whether this submission has merit, it is necessary to briefly review Demasi and then decide whether or not the principles expounded by the Court of Appeal in that decision have been offended.
Demasi involved an appeal in a personal injury matter. In that matter, the injured claimant’s evidence and credit were subject to attack on the basis of accounts given to various doctors and allied health professionals which firstly appeared to be inconsistent with each other and secondly with her evidence, or a combination of both. Basten JA, relying upon Container Terminals recorded that the difficulties in such an exercise should be well understood, and that such inconsistencies should be approached with caution.[70] In Demasi Simpson JA, as a result of the attack and adverse findings upon the appellant’s credit, set out in some detail the evidence, both lay and medical, and how it had been deployed to undermine the appellant’s credit in the first instance proceedings.[71] This led to a conclusion[72] that the analysis that had been undertaken showed that the claimant’s claim had not been subjected to a fair assessment and that the adverse findings regarding the claimant’s credit were not warranted on a proper examination of the evidence.
[70] Demasi, [2].
[71] Demasi, [54]–[122].
[72] Demasi, [146].
At Demasi [2], Basten JA set out why inconsistencies in medical records should be approached with caution.
From the above, it is clear from Demasi that the Court of Appeal is providing a warning regarding the use to which medical records can be made adverse to a claimant. For the reasons I set out below, the Arbitrator did not offend the principles arising from Demasi, and as a result no error of law has been occasioned. In my opinion, the circumstances that arose in Demasi and which led to the warning that appears in the Court of Appeal decision can be distinguished from the current circumstances. The current circumstances, in my view, can also be distinguished from those discussed by me in the decision of Szenczy.
The Arbitrator made no adverse finding as to the appellant’s credit. It is true, as asserted by the appellant,[73] that recent invention had never been asserted by the respondent. This submission however is not to the point. No adverse credit finding was made contrary to the appellant’s interests as a result of the Arbitrator’s consideration of the medical records.
[73] Submissions, [26].
Medical notes, for the reasons outlined by Basten JA in Demasi,[74] do need to be read with caution. They are not proofs of evidence taken for the purposes of legal proceedings; the purpose of a medical examination is entirely different. In this case, it is plain from a consideration of the medical records that there were pre-injury complaints of neck pain given by the appellant to certain medical practitioners. That these records exist and contain those notations was not in dispute before the Arbitrator. The Arbitrator found that Dr Panjratan was the “only doctor who has a history of the applicant suffering neck pain prior to the onset of her right shoulder pain and certainly well before the applicant suffered restriction of movement in her right shoulder.”[75]
[74] Demasi, [2].
[75] Reasons, 11.14–18.
Whilst the Arbitrator found aspects of Dr Panjratan’s report ambiguous, he found that “he does have the advantage of having engaged with the fact that the applicant had some neck pain before the onset of her shoulder condition”.[76]
[76] Reasons, 12.9–11.
This is not to say that the medical evidence relied upon by the appellant did not record the appellant’s complaints of neck pain, they most certainly did. What they were lacking was the unchallenged histories from the medical notes which recorded that the appellant had suffered neck pain prior to the onset of her right shoulder pain. As a result of not having this information, those doctors’ opinions were proffered in its absence. It is within this circumstance that the Arbitrator was called upon to weigh the competing medical opinions and he preferred the opinion of the doctor (Dr Panjratan) who was aware of these prior complaints and delivered an opinion armed with that knowledge. The appellant complains that this process is unfair to have used the notes in this manner.
At [26] of the appellant’s submissions in chief, the following is said:
“The Arbitrator was required, amongst other matters, to consider that:
(a) the health professional who took the history had not been cross-examined;
(b) no evidence was available about the circumstances of the consultation including how the history was obtained, the period of time devoted to that exercise and the accuracy of the recording.”
There are a number of problems with these assertions. With respect to the assertion contained in [26(a)] of the appellant’s submissions in chief, it is stated that the medical practitioners who recorded the histories should have been cross-examined. This situation was dealt with by Basten JA in Demasi. At [3] of Demasi, his Honour found as follows:
“The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.”
With respect to his Honour, I adopt this reasoning. The hearing in this matter took place in 2021, the notes in question were recorded in 2013 and 2015 and consequently it is unlikely, in accordance with Basten JA’s remarks I have outlined above, that the author of the medical records would have any independent recollection of the consultation in question. Consequently, contrary to this submission, the Arbitrator was not required to undertake a consideration that the author of the history had not been cross-examined.
As to the submission at [26(b)] of the appellant’s submissions in chief, this submission is also dealt with by the remarks from Demasi that I have just referred to. But additionally that submission might have some resonance if the appellant had taken issue with the veracity of the medical notes in question. This submission implicitly suggests that the histories taken of neck pain before the onset of the shoulder symptoms might not be correct. The problem with this submission is clear; no issue doubting the veracity of the prior neck complaints as found in the medical notes was taken before the Arbitrator. As a consequence, the Arbitrator was entitled to construe Dr Panjratan’s opinion which was made with the benefit of the entirety of the appellant’s history.
The appellant complains that the Arbitrator used “the failure to provide a history to some doctors but not to others as a vehicle to extinguish the appellant's claim for a consequential condition. To do so is not expressing and putting into place the cautionary conduct required of trial Judges and Arbitrators as identified in Mason v Demasi”.[77]
[77] Appellant’s submissions, [27].
With respect to the appellant, this is not what occurred. The task that was undertaken by the Arbitrator was to consider the evidence, weigh it and then decide whether it is to be accepted, rejected, or that some evidence is to be preferred over another. The weight to be afforded to particular evidence is a matter for the Arbitrator, the first instance decision maker, and is a finding of fact. Such findings of fact are not disturbed on appeal if there is support for those findings within the evidence.[78] The Arbitrator’s reasons as to why Dr Panjratan’s opinion was preferred were based upon a rational consideration of the evidence. The Arbitrator noted, quite properly, some of the problems with Dr Panjratan’s evidence, but ultimately preferred that doctor’s opinion as it had been delivered with the advantage of having undertaken a consideration of a more complete history than the appellant’s medical evidence had considered. As stated above, this is classically a matter for the exercise of the discretion of the first instance decision maker.
[78] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
In this regard it is important to understand that Dr Panjratan’s opinion is based upon two pieces of evidence, medical notes which reveal pre-injury neck complaints with which no issue was taken before the Arbitrator. Given this fact, and the opinion which Dr Panjratan reached in light of having considered those medical records, thus provided the Arbitrator with a logical and rational basis to prefer the evidence of Dr Panjratan.
The appellant’s complaints that Demasi has not been followed are incorrect. As I stated above, I think that the cautions which Demasi stands for can be distinguished from the circumstances in this matter, particularly where no issue was taken with the accuracy of what was recorded in the notes.
Ground One has not been made out and is therefore dismissed.

As to Ground Two

In light of what I have found in relation to Ground One, Ground Two can be simply dealt with.
It is trite to say that at all times during the conduct of this matter, the appellant bore the onus of proof with respect to her alleged consequential condition relating to her neck/cervical spine.
What was in contest in this matter was the relationship between the complaints of neck pain, which were not doubted, and the accepted injuries.
The appellant complains of not being able to “call witnesses and cross-examine experts” in the Commission. It is true that there is no presumptive right to call oral evidence, leave must be sought.[79] It is clear from a consideration of Dr Panjratan’s report that his ultimate opinion was significantly affected by a consideration of pre-injury neck complaints that were found in the medical records. It was open to the appellant to attempt to address this issue regarding prior neck complaints, but this was not done. As I stated in relation to Ground One, the Arbitrator was entirely within his discretion as a first instance decision maker to weigh the evidence and to arrive at the conclusions that he did. The appellant points to significant evidence of neck pain and states that this evidence created “a more probable inference than not that neck pain (not migraines) was an associated symptom of and relating to the damage to the right shoulder and the consequential overuse of the left shoulder.”[80] As the respondent to this appeal accepts, the appellant “provided evidence to support this contention.”[81] What was required to be decided by the Arbitrator however was the origin of that neck pain and he did so based upon the consideration of the evidence that I have described above. Notwithstanding the case presented by the appellant, she was unable to discharge her burden of proof with respect to proving that her claimed neck/cervical spine condition was consequent upon the accepted injury.
[79] Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34, [37] per Bryson JA (Handley JA and Bell J agreeing).
[80] Appellant’s submissions, [35].
[81] Respondent’s submissions, [13].
No error has been identified and as a result Ground Two also must be dismissed.

DECISION

The appellant has failed to identify a relevant error such as to compel intervention on appeal. As a result, the Arbitrator’s decision must stand.
The Certificate of Determination dated 20 January 2021 is confirmed.

Judge Phillips
PRESIDENT

26 July 2021