State of NSW (HealthShare NSW) v Morrison - [2020] NSWWCCPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of NSW (HealthShare NSW) v Morrison [2020] NSWWCCPD 1
APPELLANT:	State of NSW (HealthShare NSW)
RESPONDENT:	Johanne Morrison (nee Faulkner)
INSURER:	QBE Insurance Australia Ltd
FILE NUMBER:	A1-1382/19
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	27 and 28 May 2019
DATE OF APPEAL DECISION:	9 January 2020
SUBJECT MATTER OF DECISION:	Alleged error in fact-finding
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms J Tzavaras, solicitor
HWL Ebsworth
Respondent:
Ms L Goodman, counsel
Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The identity of the appellant is amended to ‘State of NSW (HealthShare NSW)’. 2. The Arbitrator’s decision dated 27 and 28 May 2019 is revoked. 3. The matter is remitted pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

Johanne Morrison (nee Faulkner) (the respondent) worked at the Nepean District Hospital from about April 2014 as a kitchenhand and hospital assistant.[1] It is common ground that the correct identity of her employer for the purpose of these proceedings is the ‘State of NSW (HealthShare NSW)’ (the appellant). The appellant’s name is amended accordingly.
[1] Respondent’s statement 28.2.19, [11], Application to Resolve a Dispute (ARD), p 1.
The respondent developed symptoms involving her hands and wrists. She underwent surgery involving right carpal tunnel release on 25 August 2016,[2] and on 13 April 2018 left carpal tunnel release, left trigger thumb release and right middle finger release.[3] The appellant’s insurer made payment of some medical expenses voluntarily. At an arbitration hearing held on 16 May 2019, it was accepted by the parties that the appellant disputed the alleged injuries involving bilateral carpal tunnel syndrome and triggering of the left thumb. It appeared the appellant had not disputed the injury involving triggering of the respondent’s right middle finger. An application by the appellant, pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), to dispute that injury also, was refused.[4] The Arbitrator noted the claim for lump sum compensation was not pressed, as there was no claim for right carpal syndrome before the Commission at that point.[5]
[2] ARD, p 239.
[3] ARD, p 303.
[4] Transcript 16/5/19 (T1) 20.12–26.19.
[5] Transcript 27/5/19 (T2) 2.9–14.
At the arbitration hearing on 16 May 2019 Ms Goodman appeared for the respondent and Mr Hammond appeared for the appellant. There was no oral evidence. The matter proceeded on the documentary material, counsel addressed and the Arbitrator reserved his decision. The matter was listed again on 27 May 2019, when the Arbitrator delivered his reasons for decision orally (which will be further summarised below).
The Commission issued a Certificate of Determination on 27 May 2019, which set out the formal orders. The Arbitrator found injury to the left upper extremity (left carpal tunnel syndrome and left trigger thumb) and right upper extremity (right trigger middle finger) on 2 November 2017. He found the employment was a substantial contributing factor to injury. He made an award for weekly compensation during the short closed period at issue, together with a general order for the payment of medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).[6] At the conclusion of the reasons, Mr Lehman, solicitor (who appeared for the appellant on this occasion) said “Didn't the [respondent] plead nature and conditions or disease injury? Wasn't that the basis of their claim? You found a traumatic injury.”[7]
[6] Certificate of Determination dated 27 May 2019.
[7] Transcript 27/5/19 (T2) 54.5–7.
A further Certificate of Determination was issued on 28 May 2019. It provided:
“The Certificate of Determination dated 27 May 2019 is amended by deleting paragraph 2 and inserting instead:
‘2. The [respondent’s] employment with the [appellant] was the main contributing factor to injury.’”
The Certificate of Determination dated 28 May 2019 included a short Statement of Reasons as follows:
“1.     At the conclusion of the oral reasons given on 27 May 2019, it was pointed out to me by the solicitor for the [appellant] that the [respondent] pleaded her case as a ‘disease injury’, a matter that I overlooked in making the determination. I acknowledge this error which results in the finding 2 of the Certificate of Determination dated 27 May 2019 that the [respondent’s] employment with the [appellant] being found to be a substantial contributing factor to injury was an error.
2.      Included in Findings and Reasons in my oral decision was a finding that that the [respondent] suffered injury on 2 November 2017 to which her employment with the [appellant] was a substantial contributing factor, rather than finding a disease injury to which the [respondent’s] employment was the main contributing factor.
3.      In my view, the [respondent’s] employment with the [appellant] was the main contributing factor to injury, for the oral reasons given on 27 May 2019.
4.      I therefore revoke the finding that the [respondent’s] employment with the [appellant] was a substantial contributing factor to injury. I substitute a finding that the [respondent’s] employment with the [appellant] was the main contributing factor to injury.”

THE ARBITRATOR’S REASONS

The Arbitrator’s primary reasons (subject to the amendment in the Certificate of Determination dated 28 May 2019) were delivered orally on 27 May 2019.
The Arbitrator noted the claim before him was in respect of weekly payments[8] and medical expenses for the left carpal tunnel syndrome, left thumb triggering and right middle finger triggering. Pre-injury average weekly earnings were agreed at $671.98 and it was agreed all the weekly period claimed fell within the first entitlement period of 13 weeks. He noted the respondent pleaded the deemed date of injury was 2 November 2017 (following amendment at a telephone conference on 18 April 2019). The appellant asserted the deemed dates of injury should be 7 August 2017 (for the left carpal tunnel syndrome and right middle trigger finger) and 2 November 2017 (for the left trigger thumb).[9] The appellant conceded total incapacity for the period from 12 April 2018 to 27 May 2018 (when the respondent was off due to surgery) and said the other odd dates were a matter for determination by the Commission.[10]
[8] Described at T2 1.39–2.5.
[9] T2 3.17–4.10.
[10] T2 4.33–5.5.
The Arbitrator summarised the respondent’s statements dated 28 February 2018[11] and 9 May 2019[12].[13] He referred to nerve conduction studies carried out on 14 July 2014 (about three months after the respondent commenced with the appellant) that were reported as “suggestive of bilateral moderate carpal tunnel syndrome”. The Arbitrator described this as “significant”.[14] He referred in some detail to the “relevant entries” from the records of the general practitioner, Dr Chua, ranging from 9 August 2017 to 6 September 2019.[15]
[11] ARD, pp 1–5.
[12] Application to Admit Late Documents (AALD) 9/5/19.
[13] T2 5.27–14.24.
[14] T2 14.30–15.20.
[15] T2 15.32–17.33.
The Arbitrator referred to the report of Dr Masson (a hand and plastic surgeon qualified by the appellant) dated 4 October 2017. He quoted in detail from a number of Dr Masson’s multiple reports, and the doctor’s history of the respondent’s duties.[16] He referred to Dr Masson’s view that:
“[I] do not believe that her employment is the main contributing factor to the development of left carpal tunnel syndrome. I believe her employment is the main contributing factor to the development of right middle trigger finger.”[17]
[16] T2 20.14–29.16.
[17] Quoted at T2 25.12–17.
The Arbitrator summarised the views of Dr Kumar, a treating plastic and reconstructive surgeon[18] and Dr Lai, a hand and plastic surgeon qualified in the respondent’s case.[19] Dr Lai described the respondent’s work duties as “a substantial contributing factor to the injuries” alleged to the upper limbs.[20]
[18] T2 29.19–32.7.
[19] T2 32.33–35.30.
[20] T2 35.16–21.
The Arbitrator observed that neither Dr Masson or Dr Lai had been provided with the report of nerve conduction studies performed in July 2014.[21] He noted Dr Lai agreed with Dr Kumar regarding work being the cause of the triggering in the hands. He noted Dr Lai disagreed with Dr Kumar regarding whether work was the cause of the carpal tunnel syndrome. Dr Lai thought that “work was a substantial contributing factor to the cause of her carpal tunnel syndrome”. He disagreed with Dr Masson’s views to the contrary.[22] The Arbitrator referred to Dr Masson’s opinion that there was a difference between work that was repetitive (such as a boner in an abattoir) and work that was repetitious. The respondent’s work was repetitious in Dr Masson’s view. The doctor again referred to Dr Masson’s point that, in the doctor’s understanding, the respondent did not develop carpal tunnel symptoms “until well after she started work” with the respondent.[23]
[21] T2 35.32–36.1.
[22] T2 36.18–38.8.
[23] T2 40.5–41.27.
The Arbitrator described the parties’ submissions as largely in accordance with the medical evidence.[24] The appellant highlighted the varied nature of the respondent’s duties. The appellant described Dr Kumar as either being indifferent or supporting the appellant’s position regarding the alleged left carpal tunnel injury. The appellant submitted Dr Lai did not properly explain his position.[25] The Arbitrator described a submission by the respondent, that the first investigation for carpal tunnel occurred in July 2014 three months after starting work with the appellant, as significant. The respondent in her histories had clearly overlooked or forgotten what happened in July 2014. The respondent relied on Dr Yee’s opinion on causation of the carpal tunnel condition.[26] The Arbitrator referred to the respondent’s reliance on the decision in Perry v Tanine Pty Ltd t/as Ermington Hotel.[27]
[24] T2 42.15–17.
[25] T2 42.25–33.
[26] T2 43.11–28.
[27] [1998] NSWCC 14; 16 NSWCCR 253 (Perry), referred to at T2 44.5–9.
The Arbitrator said he found the views of Dr Lai more persuasive than those of Dr Masson and Dr Kumar, on the issue of causation of the carpal tunnel condition. Dr Lai took a detailed history. Dr Lai’s views were supported by Dr Yee, the treating surgeon. Dr Yee (contrary to what Dr Masson said) quite clearly made a causal link between the job description and the onset of carpal tunnel syndrome. The Arbitrator said the most telling point was the onset of symptoms within three months of her commencement with the respondent in April 2014. This was consistent with Dr Masson’s statement, that one would expect symptoms to commence within a short period of commencement if the employment was causative.[28]
[28] T2 44.31–45.29.
The Arbitrator reasoned that the respondent was right handed, and as she experienced the right sided carpal tunnel symptoms she started using the left hand and symptoms appeared there. The Arbitrator acknowledged Dr Masson’s view that the respondent fell “into an appropriate demographic for idiopathic carpal tunnel syndrome”. He found that in the circumstances of the case there was sufficient evidence from the respondent, when considered with the medical opinion of Dr Yee, Dr Lai and to a lesser extent Dr Kumar, to find that the left carpal tunnel syndrome and left trigger thumb symptoms arose out of or in the course of the respondent’s employment. Dr Kumar acknowledged that causation of carpal tunnel syndrome was “a matter of controversy in the medical profession”. The Arbitrator accepted Dr Lai’s description of the respondent’s work duties. He said this, together with the timing of the onset of symptoms in 2014, supported his finding.[29]
[29] T2 46.7–34.
The Arbitrator referred to the decision of Burke J in Perry, and a later decision of Roche DP in DP World Sydney Ltd v Kelly, including other decisions referred to in Kelly.[30] The Arbitrator made a finding, based on the opinion of Dr Lai, that employment with the appellant was a substantial contributing factor to the injury. He said Dr Lai had stated unequivocally that the injury was not a disease, and that for him to make a finding of ‘disease’ would be contrary to the medical evidence in the respondent’s case. The Arbitrator added that if he was wrong regarding whether it was a ‘disease’ injury, then for the reasons given the respondent’s “employment was the main contributing factor to her left carpal tunnel syndrome and her left trigger finger”. He noted injury to the right middle finger was not in issue.[31]
[30] [2011] NSWWCCPD 43 (Kelly), discussed T2 47.12–49.34.
[31] T2 50.1–30.
The Arbitrator then dealt with the terms of the weekly award and medical expenses.[32] These matters are not an issue in the current appeal.
[32] T2 50.32–51.26.
The Arbitrator then considered the dates of injury. He noted that, at the telephone conference the respondent amended the pleaded date of injury to 2 November 2017, which was not opposed. The appellant submitted the dates of injury should be 7 August 2017 in respect of the left carpal tunnel syndrome and the right trigger finger and 2 November 2017 in respect of the left trigger thumb. The Arbitrator said that it was inherent in these dates, which were set out in the Reply, that the injury was a ‘disease’ rather than injury simpliciter. He said the appellant made no further submission on whether injury should be a ‘disease’, beyond its reliance on these dates. He said the s 74 notice and review notices did not deal with whether the injury should be based on a finding of ‘disease’ rather than injury simpliciter. The dispute raised referred only to ss 4 and 9A of the 1987 Act. He said “not a great deal turns upon it and my view is that the appropriate date of injury should be 2 November 2017 for all injuries and I make that finding”.[33]
[33] T2 51.31–52.29.
The Arbitrator then made formal orders.[34]
[34] T2 52.31–53.34.

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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

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 NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[35] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[36] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[37]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[38]
[35] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[36] (1966) 39 ALJR 505, 506.
[37] [1996] HCA 140; 140 ALR 227.
[38] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[39] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[40]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[41]
[39] [2017] NSWWCCPD 5, [67].
[40] [2001] FCA 1833, [28].
[41] Raulston, [20].
In Northern NSW Local Health Network v Heggie[42] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[42] [2013] NSWCA 255; 12 DDCR 95, [72].

GROUNDS OF APPEAL

The appellant’s initial Application to Appeal was registered on 25 June 2019. Some of the grounds did not comply with paragraphs [17] to [18] of Practice Direction No 6. The submissions did not separately address each ground of appeal, contrary to the Practice Direction at [20]. A Direction was issued on 22 November 2019 which relevantly provided:
“1. The appellant is directed to file on or before 4.30 pm on Friday 29 November 2019 an Amended Application – Appeal Against Decision of Arbitrator (Amended Application) that:
(a)briefly, but specifically, sets out separately enumerated grounds of appeal, identifying the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found, and
(b)contains separate submissions which specifically address each ground of appeal,
as required by Practice Direction No 6 – Appeal Against a Decision of an Arbitrator (Practice Direction No 6).
2. The respondent is directed to file on or before 4.30 pm on Friday 6 December 2019 any further submissions in response to the Amended Application.”
The appellant lodged an Amended Application to Appeal on 29 November 2019. The respondent lodged an Amended Notice of Opposition on 6 December 2019. On this occasion the appellant made separate submissions addressing each ground. Each of the three grounds simply referred to a finding of the Arbitrator and alleged that the finding was affected by “an error of fact and/or law and/or discretion”. Each of the grounds then stated that the relevant finding should be revoked and replaced with a contrary finding. The profession is reminded of the need to comply with Practice Direction No 6 in preparing Applications to Appeal. The grounds do not appropriately comply with the Practice Direction, which requires that the grounds clearly and succinctly identify “the respects in which error of law, fact or discretion is alleged to have occurred” (emphasis added). In Kowalski v Repatriation Commission the Full Bench of the Federal Court said:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be…”[43]
[43] [2011] FCAFC 43, [21].

The pleaded grounds of appeal assert that the Arbitrator erred:
(a)    in finding that the respondent suffered personal injury in the form of left carpal tunnel syndrome and left thumb trigger condition, and there should be a finding that this was not established on the probabilities; (Ground No 1)
(b)    in finding that employment with the appellant was the main contributing factor to the injury, and there should be a finding this was not established on the probabilities; (Ground No 2), and
(c)    in finding that the date of injury of the respondent’s left carpal tunnel syndrome, left trigger thumb and right trigger middle finger was 2 November 2019 (sic, 2017). The deemed date of injury should be 7 August 2017 (left carpal tunnel and left thumb) and 2 November 2017 (left thumb [sic]). (Ground No 3)

GROUND NO 1

Appellant’s submissions

The appellant submits the Arbitrator placed great weight on the nerve conduction studies carried out on 14 July 2014, which confirmed moderate bilateral carpal tunnel syndrome a few months after the respondent commenced with the appellant. This was in light of Dr Masson’s opinion that, if there was a causal relationship between employment and carpal tunnel syndrome, this would be expected to develop soon after the respondent started working in the employment. Neither Dr Masson or Dr Lai was aware of the July 2014 studies when they reported in the matter. The appellant submits the Arbitrator considered these studies “answered the concerns of Dr Masson”. The appellant describes this as a “gross mischaracterisation” of Dr Masson’s views.[44]
[44] Appellant’s submissions, [42]–[47].
The appellant submits there were other bases on which Dr Masson did not support the causal connection. Dr Masson did not consider the employment duties were of a kind that would cause or aggravate carpal tunnel syndrome. The appellant submits Dr Masson’s views should not have been discounted on the basis of the July 2014 nerve conduction studies.[45]
[45] Appellant’s submissions, [47]–[48], [59]-[60], [63].
The appellant submits the July 2014 nerve conduction studies are inconsistent with the basis on which Dr Lai supported the respondent’s case. The appellant refers to a passage in Dr Lai’s report dated 1 August 2018:
“Ms Faulkner did not experience symptoms of carpal tunnel syndrome until well after she started employment with Nepean District Hospital. Her right hand started first being the dominant hand and the left hand later. Her job description from her statement and also mine in the ‘History of Injury’ section illustrates the high frequency of ‘Forceful Gripping’, ‘Repetitive Movements’ and ‘Vibratory Movements’ to her wrists and hands while carrying out her normal duties. Therefore, it is my opinion that her work was a substantial factor in the cause of her carpal tunnel syndrome.”[46] (The words here appearing in italics were not included in the reference to this passage appearing in the appellant’s submissions.)
[46] ARD, p 71.
The appellant submits the two factors relied on by Dr Lai were that symptoms commenced “well after” the respondent started employment with the appellant, and that the right dominant hand started first. It submits the July 2014 studies are inconsistent with both of these propositions. “The two factors relied upon by Dr Lai as establishing the requisite causal relationship between employment and the [respondent’s] condition are in fact completely absent.”[47] The appellant submits the “history relied upon by Dr Lai as establishing the connection between the [respondent’s] employment and her carpal tunnel condition is demonstrably incorrect”.
[47] Appellant’s submissions, [50]–[58].
The appellant refers to the Arbitrator’s reference to Kelly and other decisions quoted in Kelly.[48] The appellant submits these decisions indicated that carpal tunnel syndrome was “best considered a disease”. The appellant says Dr Lai was of the view that the respondent did not suffer from a ‘disease’, and a ‘disease’ finding would be contrary to the respondent’s medical case. The appellant then says the Arbitrator made a finding of injury simpliciter under s 4(a) of the 1987 Act, rather than a ‘disease’ finding under s 4(b). [49]
[48] Perry, Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244, 5 DDCR 247, Toll Pty Limited v Bartimote [2007] NSWWCCPD 153.
[49] Appellant’s submissions, [65]–[66].
The appellant at [67] of its submissions submits the Arbitrator went on to find that, if he was wrong in relation to the injury finding pursuant to s 4(a), then he considered the respondent’s employment was the main contributing factor to her left carpal tunnel syndrome and trigger thumb. The appellant submits the Arbitrator, significantly, did not make a finding that if he was wrong in his finding of injury, then he considered the injury to be a ‘disease’ pursuant to s 4(b) of the 1987 Act. The appellant submits this was not surprising, given “the Arbitrator’s unequivocal declaration” that a disease finding would be contrary to the respondent’s medical case. The appellant submits in those circumstances the finding of ‘main contributing factor’ is irreconcilable with the unequivocal finding of injury simpliciter.[50]
[50] Appellant’s submissions, [68]–[69].
The appellant submits the injury findings made were unavailable to the Arbitrator in the circumstances because:
(a)    the injuries to the left carpal tunnel and trigger thumb were not pleaded as injuries within the meaning of s 4(a) of the 1987 Act;
(b)    having concluded a ‘disease’ finding would be contrary to the respondent’s medical case, the Arbitrator could not simply state that employment was the main contributing factor, without explaining how the injuries amounted to a ‘disease’, and
(c)    the Arbitrator gave no reasons for making the ‘disease’ finding, which was incompatible with the opinion of Dr Lai, which he accepted.[51]
[51] Appellant’s submissions, [70].

Respondent’s submissions

The respondent submits the Arbitrator gave weight to the nerve conduction studies in July 2014, “essentially to demonstrate that Dr Masson’s opinion was based on an incorrect premise”, and the respondent suffered from hand symptoms within three months of commencing work with the appellant. The Arbitrator did not ignore Dr Masson’s views regarding the type of work the respondent performed, rather he rejected Dr Masson’s opinion. The Arbitrator noted Dr Masson’s opinion that the difference between his opinion and that of Dr Lai was essentially one going to the interpretation of the respondent’s work duties. The Arbitrator accepted Dr Lai’s interpretation and gave reasons for doing so. The respondent submits the nerve conduction studies in July 2014 were only one of the matters relied on by the Arbitrator, in finding a causal connection between the work duties and the alleged injuries.[52]
[52] Respondent’s submissions, [7]–[10].
The respondent submits that the appellant did not, at first instance, rely on a submission that Dr Lai’s opinion ought not be given weight as the history relied upon was incorrect.[53]
[53] Respondent’s submissions, [11].
Overall, the respondent submits no error is demonstrated. The Arbitrator carefully analysed the medical evidence and statement and gave extensive reasons.[54]
[54] Respondent’s reasons, [12]–[13].

Consideration

The respondent takes the point that the appellant did not, at first instance, raise an argument that Dr Lai’s opinion was deprived of weight because of inconsistency between Dr Lai’s history and the July 2014 nerve conduction studies. The appellant should not be allowed to raise this argument on appeal.[55]
[55] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7]; Coulton v Holcombe [1986] HCA 33; 162 CLR 1, [15].
If I am wrong in this regard, it is in any event an argument that involves a misreading of the opinion of Dr Lai. The appellant seeks to argue that the two “factors” relied on by the doctor were both, due to the July 2014 nerve conduction studies of which Dr Lai was unaware, “completely absent”. Dr Lai’s report should be read as a whole. The way in which Dr Lai’s opinion was quoted by the appellant (see [32] above) involved ignoring the discussion about the respondent’s duties, which was central to Dr Lai’s opinion. The reference in the passage to the duties was omitted. The description in the passage, of duties that involved forceful gripping, repetitive movements and vibratory movements, was immediately followed by the doctor’s opinion: “Therefore, it is my opinion that her work was a substantial factor in the cause of her carpal tunnel syndrome.” The other two factors in the passage, to which the appellant’s submissions refer, were also part of the doctor’s reasoning. However, it is misleading to suggest those two factors to which the appellant referred were the only ones relied on by the doctor in concluding there was a causal relationship.
Dr Lai’s reliance on the nature of the respondent’s duties, in reaching his conclusion about causation, is made clear from other passages in his report. In explaining his disagreement with Dr Masson’s opinion, Dr Lai said:
“I disagree with this statement. Ms Faulkner never had these symptoms of left carpal tunnel syndrome before she started work as a kitchen hand. In fact when she was working in the school canteen where the work was less intense prior to starting working as a kitchen hand she never suffered such symptoms. I have already described Ms Faulkner’s work duties in my report (History of Injury section) and highlighted the areas where both hands used forcible gripping on the repeated basis to carry out her work. I also highlighted that in the course of carrying out her work duties vibratory movements were also involved in both hands. It is therefore my opinion that the nature and conditions of her work was a substantial contributing factor to her development of left carpal tunnel syndrome, left trigger thumb and right trigger middle finger.”[56]
And:
“I agree with this statement with the proviso that it is my opinion that the nature and conditions of Ms Faulkner’s work was a substantial contributing factor to the development of her left carpal tunnel syndrome. Once this was established the extra activity using her hands would cause further injury as well as exacerbation or aggravation of the symptoms.”[57]
[56] ARD, p 74.
[57] ARD, pp 76–77.
The suggestion that the existence of the July 2014 nerve conduction studies removed the planks on which Dr Lai’s opinion on causation rested is wrong. The appellant submits on appeal that the evidence of those studies was inconsistent with two factors in the history relied on by Dr Lai. This could be relevant to the weight to be given to Dr Lai’s opinion.[58] However, this argument was not raised at first instance and it is not error that the Arbitrator failed to deal with it.[59] It follows that the appellant’s attack on the weight to be given to Dr Lai’s report, on the basis of the July 2014 nerve conduction studies of which Dr Lai was unaware, could not succeed on its merits.
[58] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell), [19], Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [83].
[59] Bell, [30].
That leaves an issue regarding the weight given to the opinion of Dr Masson, in light of the 2014 nerve conduction studies. The appellant submits the Arbitrator considered the studies “answered the concerns of Dr Masson”. It submits there were other bases on which Dr Masson rejected the causal connection, beyond the length of time between when the respondent commenced with the appellant and when she developed carpal tunnel syndrome.
Dr Masson approached the causation issue on the basis the respondent’s left hand and arm symptoms were present for “the last eighteen months” before his initial consultation on 4 October 2017, that is from about March 2016.[60] The significance of the time of onset of relevant symptoms was referred to in the doctor’s report dated 9 November 2017, where he said:
“If the duties which she performed at work were the cause of her carpal tunnel syndrome, then it would be a reasonable assumption that the symptoms should have developed very soon after starting this work and not two and a half years later.”[61]
[60] Reply, p 17.
[61] Reply, p 14.
Dr Masson similarly, in his report dated 12 November 2018, said:
“She developed symptoms of right carpal tunnel syndrome by late 2015, more than eighteen months after commencing work. In those workers where vibration or gripping caused carpal tunnel syndrome, this normally happens very shortly into their occupation. Young abattoir workers often develop symptoms within days or weeks of starting work, not eighteen months later.”[62]
[62] Reply, p 8.
This was reiterated in the doctor’s report dated 28 February 2019, where he said:
“Furthermore, Mrs Faulkner had been working at her job for two and a half years before her symptoms started. In patients with classic, work-related carpal tunnel syndrome, their symptoms commence very shortly after commencing their occupation.”[63]
[63] Reply, p 2.
Dr Masson’s multiple references to this topic were consistent with the date of onset being significant in his reasoning. The Arbitrator dealt with the causal link between the respondent’s work duties and carpal tunnel syndrome, in light of the July 2014 nerve conduction studies. The Arbitrator said:
“…the most telling point, in my view, as [sic] probably been foreshadowed is that the [respondent] started to experience symptoms of carpal tunnel syndrome within three months of the commencement of her employment in April 2014. She underwent the [carpal] tunnel investigation in July 2014.
It appears that she hasn’t been able to recall that when giving her statement but there is clear evidence in July 2014 that the [respondent] was experiencing carpal tunnel symptoms at that time, that is, within three months of the commencement of her employment and that then in one sense answers what Dr Masson says when he says that it could be expected that employees would start to experience carpal tunnel syndrome within a short period of commencement of the employment which would give rise to the symptoms of carpal tunnel syndrome. That, in my view, has clearly happened in this case.”[64]
[64] T2 45.13–30.
The existence of the July 2014 nerve conduction studies plainly lessened the weight of Dr Masson’s rejection of the respondent’s case on causation. The timing of the carpal tunnel symptoms and the initial diagnosis, if one accepts Dr Masson’s reasoning on this point, became supportive of the respondent’s case on causation, rather than undermining it. It was open to the Arbitrator (and compelling) to regard this evidence from 2014 as, on that point, answering what Dr Masson said. This does not disclose error by the Arbitrator.
The Arbitrator clearly accepted that there were other bases, beyond the commencement of the respondent’s relevant symptoms, that led Dr Masson to his view that the causal linkage was not made out. Dr Masson, in his report dated 12 November 2018, was asked by the insurer to outline the differences between his opinion and Dr Lai’s. He said:
“The differences pertain to interpretation of Mrs Faulkner’s work duties. Dr Lai opines that Mrs Faulkner’s duties are repetitive, involve forceful gripping and significant vibratory forces … I believe the gripping that Mrs Faulkner performs on most occasions is not forceful and is not of a sufficiently repetitive nature to be causative for carpal tunnel syndrome. Likewise, vibratory forces to which her hands are exposed also do not reach the threshold for being causative of carpal tunnel syndrome.”[65]
[65] Reply, p 9.
Dr Yee, the hand surgeon who operated on the respondent’s left carpal tunnel, trigger left thumb and trigger right middle finger, also commented, although more briefly, on the causation issue. In his report dated 19 September 2017 Dr Yee recorded a history that “[a] lot of her work is very repetitive”. On causation, Dr Yee said “I do not think it is unreasonable that [this] is [work] related, considering her job description”. Dr Masson, in his report dated 9 November 2017, commented on Dr Yee’s report:
“Dr Yee stated that it was ‘not unreasonable’ that Ms Faulkner’s carpal tunnel syndrome was work related. Had Dr Yee thought that Ms Faulkner’s occupation was the direct cause of her carpal tunnel, I am certain that he would have stated that her work was ‘definitely’ the cause.”[66]
[66] Reply, p 14.
The Arbitrator dealt with the causation issue, saying:
“Dr Masson doesn’t support a link between the carpal tunnel syndrome and the [respondent’s] employment for reasons I’ve extensively canvassed a little while ago and Dr Masson in his first report, in any event, supports a link between work and the right trigger finger condition. Dr Lai supports a causative link in respect of all conditions and, in my view, gives a very detailed history of the [respondent’s] duties and Dr Masson disagrees on Dr Lai’s interpretation of the [respondent’s] duties.
I find the views of Dr Lai who is an appropriately-qualified specialist more persuasive than those of Dr Masson and Dr Kumar on the question of the carpal tunnel syndrome. As I said, Dr Lai takes a detailed history of the [respondent’s] work duties and emphasis[es] the repetitive and forceful nature of those duties. His view is supported by the view of the treating hand surgeon Dr Yee and as I’ve indicated earlier, I don’t agree with Dr Masson’s comment about Dr Yee’s report when Dr Yee says that it’s not unreasonable that the [respondent’s] work is related to her carpal tunnel syndrome considering her job description.
In my view, Dr Yee is quite clearly making a causal link between the [respondent’s] job description and the onset of carpal tunnel syndrome but the most telling point, in my view, as probably been foreshadowed is that the [respondent] started to experience symptoms of carpal tunnel syndrome within three months of the commencement of her employment in April 2014. She underwent the [carpal] tunnel investigation in July 2014.”[67]
And:
“Dr Masson acknowledges the difference between his opinion and that of Dr Lee [sic, Lai] pertains to the interpretation of the [respondent’s] work duties and Dr Kumar, as I’ve noted, acknowledges that the work caused carpal tunnel syndrome is a matter of controversy in the medical profession. I accept Dr Lai’s interpretation of the [respondent’s] work duties which, when considered along with the timing of the onset of the evidence of bilateral carpal tunnel syndrome in 2014, that is, three months after the [respondent] commenced work, and its progress from right to left hand as the [respondent] experienced initial difficulties with the right hand allows a finding to be made that the [respondent’s] left carpal tunnel syndrome and left trigger finger arose out of, or in the course of the [respondent’s] employment with the respondent.”[68]
[67] T2 44.22–45.18.
[68] T2 46.21–47.1.
Dr Lai recorded a detailed description of the work duties.[69] The Arbitrator was clearly entitled to reject Dr Masson’s attempted interpretation of Dr Yee’s opinion, which was inconsistent with what Dr Yee actually said. The Arbitrator’s assessment of the medical evidence, and his preference for the opinion of Dr Lai regarding the work duties and their connection with the symptoms, was available and did not involve error. This is sufficient to dispose of those arguments by the appellant in Ground No 1, that seek to attack the Arbitrator’s findings on the causal link between the respondent’s work duties and the alleged injuries.
[69] ARD, p 64.
The balance of the arguments raised under Ground No 1 (see [34] to [36] above) are more appropriately dealt with in association with Ground No 2 (see below).

GROUND NO 2

This ground asserts the Arbitrator’s finding, that employment was the main contributing factor to the pleaded injuries, was in error.

Appellant’s submissions

The appellant submits the Arbitrator determined that a finding of ‘disease’ injury would be contrary to the respondent’s medical case. It submits the Arbitrator could not then simply make a finding that employment was the main contributing factor to injury, without explaining why the injury should be characterised as ‘disease’. It submits the Arbitrator failed to give reasons for a finding of injury based on the disease provisions. Such a finding was incompatible with the opinion of Dr Lai, whose opinion the Arbitrator accepted. The appellant submits there should be a finding substituted that ‘main contributing factor’ was not established on the probabilities.[70]
[70] Appellant’s submissions, [74]–[76].

Respondent’s submissions

The respondent refers to the issue of the second Certificate of Determination on 28 May 2019. The respondent submits the Arbitrator had dealt with the alternative proposition, of whether ‘injury’ was established on the basis of ‘disease’, in his oral reasons at T2 50.10–27. The Arbitrator referred to the decision in Kelly, and other decisions quoted in Kelly, which were cases involving injury under the ‘disease’ provisions. The Arbitrator made a finding in the alternative, that if he was wrong regarding injury simpliciter, the respondent’s employment was the ‘main contributing factor’ to left carpal syndrome and left trigger finger (sic). The respondent submits this involved analysis of the evidence and reasons. It did not involve error.[71]
[71] Respondent’s submissions, [14]–[17].

The legislation

Section 4 of the 1987 Act relevantly provides:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”

Consideration

One factor raised by the appellant is that the findings of injury originally made were inconsistent with the pleadings. This was the point taken by the appellant’s solicitor when the Arbitrator made his original findings based on injury simpliciter on 27 May 2019.[72] The ultimate findings of injury made by the Arbitrator, following the issue of the second Certificate of Determination dated 28 May 2019, were based on the ‘disease’ provisions. There was clearly no impediment to a ‘disease’ finding based on the pleadings, which specifically referred to a “Disease injury” and also to a deemed date of injury. This should be read subject to what was said about “pleadings” in the Commission in Far West Area Health Service v Radford.[73]
[72] T2 54.5–9.
[73] [2003] NSWWCCPD 10, [25].
Dr Lai referred to whether the test of ‘main contributing factor’ was satisfied, specifically disagreeing with Dr Masson who said it was not.[74] The respondent’s counsel addressed on this aspect of Dr Lai’s opinion before the Arbitrator.[75] In short, counsel submitted there was nothing in how the matter was pleaded, or conducted before the Arbitrator, that was inconsistent with the ultimate finding of injury pursuant to the ‘disease’ provisions of the legislation.
[74] ARD, p 75.
[75] T1 36.8–12.
The appellant makes submissions on the basis that the injury finding pursuant to the ‘disease’ provisions was inconsistent with the opinion of Dr Lai, in the respondent’s medical case, whose views the Arbitrator accepted. Dr Lai responded to a question from the respondent’s solicitors that asked:
“If applicable, where my client is said to be suffering from a degenerative condition or disease process, please identify the condition or disease process and provide your opinion as to whether the nature and conditions of my client’s employment with [the appellant] can be due to have been the main contributing factor in either causing, aggravating, accelerating, exacerbating or deteriorating that condition.”
The doctor responded:
“Your client does not have a degenerative condition or disease. It is my opinion that her employment with the [appellant] has been a substantial contributing factor to the injuries I have described in my answer to question 2 [left carpal tunnel syndrome, left trigger thumb, right trigger middle finger].”[76]
[76] ARD, p 68.
Elsewhere in his report Dr Lai said that the “nature and conditions of her work was a substantial contributing factor to her development of left carpal tunnel syndrome, left trigger thumb and right trigger middle finger”.[77] He also said that he disagreed with Dr Masson’s view that “employment is not the main contributing factor to the development of the left carpal tunnel syndrome”.[78]
[77] ARD, p 74.
[78] ARD, p 75.
There was a level of ambiguity in the question asked of Dr Lai, described at [61] above. The doctor’s views, set out at [62] and [63] above, are arguably consistent with Dr Lai holding the view that there was no “degenerative” condition present, and that the conditions he diagnosed were wholly caused by employment with the appellant. If this was Dr Lai’s view, it would potentially be consistent with a finding of injury based on s 4(b)(i) of the 1987 Act. However, the question asked and the doctor’s response were also consistent with Dr Lai being of the opinion that the respondent’s condition should not be characterised as a ‘disease’ process. This is clearly how the Arbitrator understood Dr Lai’s opinion:
“My finding is that in accordance with Dr Lai, as I said, the [respondent’s] employment with the [appellant] was a substantial contributing factor to the injury and Dr Lai expressed the view quite clearly and unequivocally that it was not a disease condition from what [sic] the [respondent] was suffering.
Therefore, for me to find it, in fact, was a disease condition would be contrary to the medical evidence put forward by the [respondent] in support of her case. I find that the [respondent] suffered injury to the left upper extremity in the form of left carpal tunnel syndrome and left trigger finger and that the [respondent’s] employment with the [appellant] was a substantial contributing factor to that injury.”[79]
[79] T2 50.3–18.
The Arbitrator’s formal findings in the Certificate of Determination dated 27 May 2019 were consistent with this analysis. In the Certificate of Determination dated 28 May 2019 the Arbitrator made a further finding that employment was the main contributing factor to injury, and substituted this finding for that originally made, that employment was a substantial contributing factor to injury.
The appellant submits that the Arbitrator did not, in the reasons and findings substituted on 28 May 2019, make any finding that the respondent’s injury was a ‘disease’ within the meaning of s 4. The appellant submits this was “not surprising” given the specific finding that, consistent with the opinion of Dr Lai, such a finding would be inconsistent with the respondent’s medical case. The appellant submits such a finding would be irreconcilable with the Arbitrator’s finding that the injury was not a disease. The appellant submits the Arbitrator gave no reasons to support a finding that the left carpal tunnel syndrome and trigger thumb constituted ‘disease’ injuries.[80] This submission is correct. The test of ‘main contributing factor’ is in s 4(b) of the 1987 Act and applies to findings of ‘injury’ based on the ‘disease’ provisions. It is different to the finding originally made, that the injury was one pursuant to s 4(a) of the 1987 Act. These difficulties are not solved by the finding, in the alternative, of ‘main contributing factor’.[81] A finding remains in the original reasons, rejecting the proposition that the injury was appropriately characterised as one pursuant to the ‘disease’ provisions. No specific finding of ‘disease’ is made. No reasons are given to explain why the injury falls within s 4(b) of the 1987 Act, contrary to the original finding.
[80] Appellant’s submissions, [68]–[70].
[81] T2 50.19–27.
The making of conflicting factual findings is “indicative of an erroneous reasoning process”: Brown v Harding.[82] If it were accepted that a finding of a ‘disease’ injury was made by implication, although not articulated, the failure to give reasons for that finding would constitute an error of law.[83]
[82] [2008] NSWCA 51 [31].
[83] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, [57]–[66]; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, 259B.

CONCLUSION

It follows from the above that Ground No 2 is upheld. Ground No 1 is upheld, in respect of the matters referred to at [36](b) and (c) above. It is necessary that the decision be set aside. The appellant argues that orders should be made in its favour. I do not accept that submission. The fact-finding process has miscarried in the circumstances. The appropriate orders are for the rehearing of the matter. It is inappropriate to deal on this appeal with Ground No 3 (which goes to selection of a date of injury). The need to fix a date of injury is dependent on whether the respondent succeeds. If she does succeed, the date of injury would depend on the factual findings made and whether these were pursuant to subs (a) or (b) of s 4 of the 1987 Act.

DECISION

The identity of the appellant is amended to ‘State of NSW (HealthShare NSW)’.
The Arbitrator’s decision dated 27 and 28 May 2019 is revoked.
The matter is remitted pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for re-determination by a different Arbitrator.

Michael Snell

ACTING PRESIDENT

9 January 2020