Stevens v Minjin Pty Ltd t/as Harpers Painting Service - [2010] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Stevens v Minjin Pty Ltd t/as Harpers Painting Service [2010] NSWWCCPD 54
APPELLANT:		Roger Stevens
RESPONDENT:		Minjin Pty Ltd t/as Harpers Painting Service
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-8882/09
ARBITRATOR:	Mr J Ireland
DATE OF ARBITRATOR’S DECISION:		4 February 2010
DATE OF APPEAL DECISION:		18 May 2010
SUBJECT MATTER OF DECISION:		Determination of factual dispute
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Adams Leyland Lawyers
Respondent:		TurksLegal Lawyers
ORDERS MADE ON APPEAL:		The appeal is dismissed. The Arbitrator’s determination dated 4 February 2010 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Roger Stevens (‘the appellant’), who is 56 years of age, has worked as a painter and decorator most of his working life. On 4 June 2007, when employed by Minjin Pty Ltd t/as Harpers Painting Service (‘the respondent’) at the public library in Albury NSW, he slipped on a piece of copper piping, causing him to fall onto his back and buttocks. At the time of the fall, he was carrying a stepladder with his left arm and hand, and a pot of paint in his right hand. The fall caused his left arm to jam between the steps of the ladder, causing bruising to his left arm. The paint he was carrying was not spilt, and he continued to work, but experienced pain. The appellant reported the injury to his employer the following day, and continued working for a week or two, during which time he experienced difficulty walking and lifting his arms and back pain.
The appellant ceased work because of his painful symptoms, and consulted his general practitioner, Dr Robinson of Wodonga. He made a claim for compensation benefits which was accepted by the respondent’s insurer. He has, by reason of incapacity, remained absent from work since that time, and has received weekly payments of compensation to date.
On 30 April 2009, a claim was made against the respondent and its insurer in respect of lump sum entitlement pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). An offer of settlement was made by the insurer in September 2009, which Mr Stevens rejected. A dispute arose concerning the appellant’s entitlement to lump sums as claimed and an Application to Resolve a Dispute (‘the Application’) was filed on his behalf by his solicitors with the Commission on 29 October 2009. At Part 5.6 of the Application, the claim made by the appellant alleged permanent impairment arising from injury to the cervical spine, thoracic spine, lumbar spine, right lower extremity (knee) and right upper extremity. The aggregate whole person impairment (‘WPI’) alleged was 18 per cent. A claim for a lump sum in respect of pain and suffering was also particularised.
A Reply was filed on behalf of the respondent on 20 November 2009. An annexure to the Reply set out those matters which were disputed by the respondent as follows:
“1.That the applicant did not sustain injury to his right upper extremity as alleged or at all.
2. That the applicant does not suffer any permanent loss or impairment as the
result of any injury as alleged, or in the alternative, any loss is less than alleged.
3.That a deductible proportion under Section 323 is applicable to any lump
sum compensation payable pursuant to Section 66.
4.That the applicant is not entitled to compensation for pain and suffering pursuant to Section 67 as alleged, or in the alternative, the amount of any entitlement pursuant to Section 67 is disputed.
5. The Respondent requests that this matter be listed for teleconference to [sic]
as injury to the right upper extremity is in dispute.”
The matter came before an Arbitrator for arbitration/conciliation on 12 January 2010. The matter proceeded to hearing on that day, and the Arbitrator reserved his determination. A Certificate of Determination was issued on 4 February 2010, which was accompanied by a Statement of Reasons for Decision (‘Reasons’).

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 4 February 2010, records the Arbitrator’s orders as follows:
“The Commission determines:
1. An award for the Respondent in respect of the Applicant’s Claim for injury to
the right upper extremity as a consequence of the incident of 4 June 2007.
2. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An Application seeking leave to appeal against the Arbitrator’s decision was filed with the Commission on 3 March 2010 on behalf of the worker.

ISSUES IN DISPUTE

The worker challenges the Arbitrator’s finding that he did not receive an injury to his upper extremity as a consequence of the incident of 4 June 2007.
It is also asserted by the worker that the Arbitrator has erred in law in the manner in which the evidence was evaluated.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 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.

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

EVIDENCE

The documentary evidence admitted before the Arbitrator is noted at [6] of Reasons. No oral evidence was given at the hearing.
I note that included among the documents relied upon by the appellant were the clinical notes of Dr Robinson which had been noted by the Arbitrator as having been attached to an Application to Admit Late Documents. The Commission file contained two separate pages, which appear to be copies of Dr Robinson’s notes. Reference to the transcript of proceedings confirms that those notes had been sent by way of facsimile transmission and the page numbers noted on those two pages were 10 and 35. An examination of submissions put before the Arbitrator demonstrated that reference was made by counsel to pages other than those two which were present in the file. In the circumstances, following communication by the Commission with the parties, a copy of the missing pages was obtained. The parties confirmed their consent to the records in their entirety being considered on this appeal. I have marked those documents with the letter ‘A’.

Mr Stevens’s evidence

The appellant relied on his written statement dated 16 October 2009 which was attached to his Application. He stated that, on 4 June 2007, he slipped and fell in the course of his work. The following description was given of his fall:
“I fell heavily on my back and buttocks. The ladder fell onto my right knee. My left arm was jammed in one of the steps of the ladder and I had quite a large bruise on my left arm from this.”
Mr Stevens stated that he continued working following his fall and reported the incident the following day. A week or two following the fall, he experienced difficulty walking, lifting both his arms, and experienced spasms of pain in his lower and middle back. He ceased work and consulted his general practitioner, Dr Robinson. X-ray examinations were arranged and the appellant was referred to Dr Terence Hillier, orthopaedic surgeon. An MRI examination was arranged by Dr Hiller, following which it was suggested that the appellant undergo lumbar spinal fusion. That advice was not accepted and the appellant underwent two spinal injections.
The appellant sought a second opinion from Dr Kerin Fielding. Further investigations were conducted and a series of injections was arranged. In June 2008, the appellant collapsed following a reaction to an injection that had been administered. The course of injections was abandoned. The appellant was subsequently referred to Dr Melham, neurosurgeon of Melbourne, following which nerve conduction studies were performed.
The appellant in his statement described his experience of “ongoing pain in my lower and middle back, and also in my neck”. He described difficulty sleeping and the experience of cramping in his back and feet, together with discomfort in both legs and feet. His feet “occasionally feel numb”. The appellant stated that he continues to experience trouble lifting his right arm, but that his left arm had improved. He described difficulty with his right knee.
Before the subject injury, Mr Stevens had suffered a lower back injury which was followed, in 1981, by discectomy/nerve root decompression, which procedure had been conducted by Dr Peter Dewey, orthopaedic surgeon. He stated that further surgery was conducted by Dr Dewey in 1982. The appellant stated that he “completely recovered from this injury” and would consult his general practitioner only on “the very odd occasion”. He stated that he was able to carry out his work with the respondent without restrictions prior to his injury of June 2007.
The Arbitrator granted Mr Stevens leave to file a supplementary statement. That statement, dated 14 December 2009, was attached to an Application to Admit Late Documents and was admitted into evidence. It included confirmation of the circumstances of his fall. Mr Stevens stated that he was carrying a pot of paint in his right hand. He further stated that he fell onto his back and that he did not “recall at what point my right arm struck the ground, but I remember that the pot of paint was unspilled and remained upright on the ground next to where I lay immediately after the fall”. He stated that he was not aware of any pain in his right arm at the time of the fall and that he was in significant pain as a result of “my other injuries”.
The appellant stated that “some time after the accident, I noticed pain in my right arm and shoulder”. Following the nerve root injection into his neck on 5 June 2008, he could no longer lift his right arm over his head. Prior to the fall, he had never experienced any problem with his right arm or shoulder.
The appellant relied on a number of medical certificates issued by Dr Robinson, together with copies of a number of radiological investigation reports. He also tendered copies of reports from Dr Hillier and Dr Fielding. The content of the medical certificates and reports is addressed in the course of the discussion hereunder.
Mr Stevens relied on a copy of a Notification of Injury form which had been addressed to the respondent’s insurer. That document was signed by the appellant and dated 9 July 2007. At [6], under the heading “Injury Details”, the injury was described as “back pain and right leg pain”.
As noted above at [15], the clinical records of Dr Robinson which had been produced by that practitioner were tendered in evidence on behalf of the appellant. The detail of those documents is addressed in the course of discussion hereunder.
The appellant also relied on a medico-legal report of Dr WGD Patrick dated 20 April 2009. Dr Patrick was qualified by the appellant’s solicitors to provide a report concerning Mr Stevens’s injuries and disabilities as a result of the fall, as well as to provide an assessment of WPI for the purposes of his lump sum claim. Dr Patrick examined Mr Stevens on 6 February 2009, at which time he recorded Mr Stevens’s symptoms. At page three of the report, Dr Patrick noted that “during the early period post-injury, he had difficulty elevating the arms. The left shoulder seems good now, but the right shoulder continues to cause him problems”.
On examination, Dr Patrick noted that the range of active movement of Mr Stevens’s right shoulder was considerably restricted. Dr Patrick expressed his views in relation to the various consequences of the fall, including his opinion that the appellant had likely “developed some degree of post-traumatic subacromial bursitis/impingement” in the right shoulder. Dr Patrick suggested obtaining a quality, high-resolution ultrasound of the right shoulder. The appellant did not tender any further reports from Dr Patrick. Dr Patrick provided assessments of WPI in respect of those parts of the anatomy which, in his view, had been injured in the subject fall. That assessment included one of six per cent WPI in respect of the appellant’s right upper extremity.

The respondent’s evidence

The respondent relied on two reports from Dr Warwick Huntsdale, consultant orthopaedic surgeon. Dr Huntsdale was qualified to provide the respondent’s insurer with an opinion concerning the existence and extent of any WPI suffered by the appellant as a result of the subject fall. In the first of those reports, dated 2 December 2008, Dr Huntsdale recorded a complaint by the appellant of “pain radiating into the right trapezius and the point of his right shoulder”. Dr Huntsdale’s WPI assessment made in the first report did not include any allowance in respect of the right upper extremity.
In the second report from Dr Huntsdale, dated 26 June 2009, the earlier complaint of pain at the point of the shoulder joint was noted. Dr Huntsdale proceeded to state that the appellant:
“… certainly made no mention of difficulty in movement of his shoulder. He now states that he injured his right shoulder at the time of his injury on 4 June 2007. He did not complain, however, of pain at the time, but said his right shoulder gradually became more sore weeks after the event. Once again, he stated the point is over the top of his shoulder and he thinks there is crepitus in that area.”
On examination, the range of motion demonstrated in the appellant’s right shoulder was greater than that recorded by Dr Patrick in his report of 20 April 2009.
Dr Huntsdale, at page 12 of his second report, made reference to the appellant’s complaint of “increasing discomfort in his right shoulder” and expressed the view that such discomfort was due to rotator cuff degenerative change. Dr Huntsdale expressed his view that there was no clear evidence that Mr Stevens’s shoulder was injured at the time of the subject fall. It was for that reason that Dr Huntsdale did not include a two per cent WPI assessment in respect of the right shoulder as a result of the injury.
The respondent also relied on a report from Dr Andrew Milliken, injury management consultant, in relation to an examination conducted on 8 January 2008. Dr Milliken recorded Mr Stevens’s symptoms on that occasion as relating to stiffness in his neck, insomnia and severe sharp pain in his lower back. It was Dr Milliken’s opinion that the appellant had suffered a significant injury to his lumbar spine which prevented him from returning to work.
The respondent relied on a report from Dr Terence Hillier, which had been completed by that practitioner in response to certain questions put by the insurer in correspondence dated 10 September 2007. Dr Hillier noted that, following the subject fall, the appellant had stated that his back and right knee hurt. It was further stated that “the investigation of the cervical spine was requested by me because Mr Stevens detailed pain in his shoulder blade region when he stretched his [right] arm above his head”.
The respondent relied on a copy of correspondence addressed by the insurer to the appellant’s solicitors dated 19 May 2009 requesting a supplementary report from Dr Patrick to enable clarification of the suggested injury to the appellant’s right shoulder. There is no evidence of a response to this correspondence before the Commission.
The respondent relied on an assessment report dated 26 February 2008 from CRS Australia signed by Karen Evans, occupational therapist. That report included a description of the subject fall as provided by the appellant. It was recorded that the appellant at that time experienced discomfort in his knee and back. It was also recorded that, over the following one to two weeks, the appellant’s back pain worsened and he was not able to manage working full days. Ms Evans deferred a recommendation concerning rehabilitation, given that the appellant at that time was awaiting a second orthopaedic opinion concerning proposed surgery.

PROCEEDINGS BEFORE THE ARBITRATOR

Mr Stevens’s submissions

The appellant drew the Arbitrator’s attention to the following:
1.    The opinions of both Dr Patrick and Dr Huntsdale who opined that Mr
Stevens had an assessable WPI by reason of right shoulder disability. It was submitted that “the starting point has to be that there is clearly something wrong with [the appellant’s] right shoulder”. The appellant’s counsel acknowledged that the issue in dispute was whether such impairment was “caused as a result of the fall on 4 June 2007”;
2.    The various medical records and reports. It was conceded that Dr
Robinson’s records contained no early notation of injury to the appellant’s right shoulder. Attention was drawn to an entry in Dr Robinson’s notes dated 20 June 2008, where it was recorded that the appellant felt pain in his upper arm the day following an injection administered to his neck some three weeks earlier than that consultation. Counsel then drew attention to the next relevant entry being made on 16 June 2009, where Dr Robinson recorded right shoulder pain. It was suggested in the course of submissions that, by reason of the significant injuries received to his back, his neck and his knee, the absence of contemporaneous complaint concerning his shoulder may be explained;
3.    The matters noted in the report of Dr Fielding dated 12 March 2008. It was
in that report that complaint of pain in the appellant’s right shoulder had been recorded. The history Dr Fielding noted appears to suggest that such pain was experienced shortly after the subject fall. Attention was drawn to Dr Fielding’s notation that there had been “some painful external and internal rotation of [the appellant’s] right shoulder”. It was the appellant’s argument that a careful analysis of the evidence demonstrates that there has been a “problem with the right shoulder which … probably still isn’t sufficiently well diagnosed … since the date of the accident, and that has resulted in a permanent impairment …”.

The respondent’s submissions

Counsel for the respondent made reference to the clinical notes compiled at the practice of Dr Robinson and the various medical reports that were in evidence, and argued that there was no evidence of complaint of injury to the right shoulder contemporaneous with the fall. It appears that counsel accepted that there was evidence of some abnormality in the right shoulder joint; however, it was argued that the evidence of the appellant himself did not make clear the time at which he first noticed problems with the right shoulder.
It was argued on behalf of the respondent that the history as recorded by Dr Fielding concerning hitting the right shoulder in the fall was inconsistent with those matters stated in the appellant’s own evidence, and inconsistent with the history as recorded by Dr Hillier. The opinion as expressed by Dr Patrick was criticised upon the basis that the witness’s process of reasoning had not been exposed concerning the diagnosis of some degree of post-traumatic subacromial bursitis/impingement. It was put that the appellant had not established, on the balance of probabilities, that he received injury to his right shoulder at the time of the subject fall.

The Arbitrator’s decision

At [4] of Reasons, the Arbitrator noted that the respondent conceded that the appellant, “as a consequence of the incident alluded to [sustained] injuries to the cervical, thoracic and lumbar spine, as well as the right lower extremity”. The issue to be determined was stated as being the question as to whether the appellant had, on 4 June 2007, received an injury to his right upper extremity.
The Arbitrator summarised the submissions put on behalf of each party. Reference was made by the Arbitrator to the appellant’s statement and the report of Dr Milliken. The Arbitrator noted that the appellant stated that he was not aware of any pain in his right arm at the time of the fall. It was also noted that Dr Milliken, following his examination of 8 January 2008, was not told of any injury involving his “upper extremities”.
The Arbitrator characterised the issue for determination as being “one of causation”. Reference was made to the decision of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’). Having regard to that authority, the Arbitrator stated that the task before him involved a commonsense evaluation as to the existence of a causal chain between the fall and injury to the shoulder. The Arbitrator expressed the view that the evidence was ambiguous. Following a further analysis of the evidence, the Arbitrator expressed the view that he could not be satisfied on the evidence that the appellant had proven that he had sustained an injury to his right arm as alleged.

SUBMISSIONS ON APPEAL

The appellant’s submissions

The appellant appears to argue that the Arbitrator erred in law in his approach to the evaluation of the evidence concerning the occurrence or otherwise of an injury to his right shoulder. It is noted that the Arbitrator referred to the decision of Flounders v Millar [2007] NSWCA 238 (17 October 2007) (‘Flounders’), with particular emphasis placed upon those matters stated by Ipp JA concerning the correct approach to evaluation of circumstantial evidence. It is suggested that the Arbitrator was bound to set out those inferences available on the evidence and to demonstrate the manner in which he “exercised his decision-making function”. It is argued that that obligation has not been discharged. The evidence is summarised in the course of submissions and it is put that “the circumstances raise the more probable inference in favour of ‘the occurrence of injury to the Appellant’s right shoulder’”. It is argued that there is no “conflicting inference that is equally probable”. The evidence of Dr Huntsdale is criticised in the course of submissions upon the basis that, in expressing his view concerning the relevance of impairment as found by him in the appellant’s right arm to the question of assessment of entitlement to lump sums, he had usurped the role of the decision maker.
Reference is made in the course of submissions to the “beneficial” nature of the workers compensation legislation and the approach adopted in the past to the evaluation of allegations made by a worker where “there was no evidence to the contrary”. The relief sought is that the Arbitrator’s determination be revoked and substituted with a finding that the appellant had received injury to his right upper extremity on 4 June 2007. It is the appellant’s application that the matter be referred “to an AMS for determination of whole person permanent impairment”.

The respondent’s submissions

The respondent seeks to support the factual conclusions reached by the Arbitrator (at [11] of submissions). The respondent summarises the evidence and argues that it overwhelmingly suggests that, on the balance of probabilities, the appellant did not sustain injury to his right shoulder as a result of the fall on 4 June 2007. It is emphasised in that submission that the appellant did not report injury to the right arm, right upper extremity or right shoulder to the employer, nor was there any mention of such an injury in the compensation claim form completed by him. It is further argued that the appellant’s evidence regarding the circumstances of injury was “confusing and contradictory”. It is noted in that submission that Dr Robinson had attended the appellant on a regular basis over some eight months following the subject fall and there was no clear documentation of any complaint of shoulder injury.
The opinion as expressed by Dr Patrick in his report is criticised in the course of submissions put on behalf of the respondent. Reliance is placed upon the decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’). The argument as advanced earlier before the Arbitrator is repeated, that being that there has been no sufficient exposure of Dr Patrick’s reasoning process which led him to conclude that the condition diagnosed was related to the subject fall.

DISCUSSION AND FINDINGS

There is no dispute that the appellant was injured when he fell in the course of his employment on 4 June 2007. It is accepted by the respondent that, as a result of that fall, the appellant received injury to his spine and right leg. The dispute between the parties is limited to the question as to whether, in the subject fall, the appellant received injury to his right shoulder.
It is accepted that the onus is upon the appellant to establish the occurrence of an injurious event involving his right shoulder. The only issue is whether the injurious event as alleged occurred in fact.
The parties, in their submissions, appear to have mischaracterised the nature of the dispute as being one concerning the concept of “causation”. Issues as to causation in compensation law are mainly concerned with questions as to whether death or incapacity as proven had resulted from a proven injury. Whilst it is true that the inquiry in the present matter is concerned with a determination as to whether a shoulder injury was caused by the subject fall, such inquiry is limited to a question of the occurrence of the injurious event, and does not raise any question concerning causal nexus between a proven injury and pathology as established on the evidence. The contrasting opinions of Dr Patrick and Dr Huntsdale as to diagnosis requires determination only upon proof of such injury. The task before the Arbitrator did not raise those matters usually concerned with the determination of causation in law.
It is the case that both Dr Patrick and Dr Huntsdale are of the opinion that the appellant suffers an abnormality in his right shoulder. On the one hand, Dr Patrick concludes that the appellant has “some degree of post-traumatic subacromial bursitis/impingement” in the shoulder joint. That diagnosis has been expressed without the advantage of any radiological or other investigative tests or examinations. As is pointed out by the respondent, Dr Patrick did not record a direct injury to the appellant’s shoulder in the subject fall when history was recorded in that report. The assumption is made by Dr Patrick that the impairment which he has assessed is related to the fall, notwithstanding the absence of any history of injury to that joint. On the other hand, Dr Huntsdale concludes that the appellant suffers from rotator cuff degenerative changes, and that those changes would explain the appellant’s complaint of increasing discomfort in his right shoulder.
The evidence of Dr Patrick and Dr Huntsdale does not assist the task of determining the question as to whether the shoulder joint was injured in the fall. The evidence of the appellant as found in his two statements falls short of an unequivocal statement that the shoulder was injured in the fall. In submissions, the appellant seeks to explain the absence of a clear statement of injury upon the basis that he suffered significant injuries to his neck, back and leg in the fall, and that, somehow, no mention was made of the shoulder injury, either because the pain was in some way masked by his other injuries, or he was distracted by the severity of his discomfort resulting from those other injuries. The difficulty with this explanation is that there is nowhere in the evidence any clear statement of direct trauma to the shoulder other than that recorded by Dr Fielding in her report following examination on 22 February 2008. That history, as recorded, contradicts those matters contained in the appellant’s own evidence.
There is no evidence contemporaneous with the fall which supports the allegation of right shoulder injury. The claim form lodged by the appellant makes no reference to such an injury. The notes of Dr Robinson do not contain any notation of such an injury. Whilst it is noted on 20 June 2008 that the appellant had experienced pain in his upper arm, that complaint was made in the context of the appellant’s reaction to an injection to the side of his neck which had been conducted three weeks earlier. The notation made on 16 June 2009, which relates to the issue of a “Certificate from 9/06” [sic] and a note of “Rt shoulder pain”, has no notation that the shoulder pain is in any way related to the subject fall. Those clinical notes of Dr Robinson include an entry dated 12 October 2009 in the following terms:
“He has lower cervical pain related to original fall. He cannot have Facet Joint injections because he had a severe allergy reaction to a cervical facet joint Block. Not to have more cervical facet joint blocks. Nil wrong with Rt shoulder. Certificate from 13/10 – 10/12/09.”
The “Reason for contact” noted in that entry was “pain – back – thoracic pain – back”. No submission has been put by either party concerning this entry.
The last consultation recorded in Dr Robinson’s notes appears to be that of 8 January 2010. There does not appear to be any record of any complaint relating to the right shoulder on the five occasions Dr Robinson was consulted by the appellant between 11 November 2009 and 8 January 2010.
The suggestion that the appellant received injury to his right shoulder in the subject fall is plainly made in the evidence of Dr Patrick, found in his report of 20 April 2009. It was following that examination that evidence of right upper extremity impairment first became available to the appellant, upon which a claim alleging such injury, with resulting impairment, could be made. The difficulty with the report provided by Dr Patrick is, firstly, that the summary of Mr Stevens’s description of his injury, which appears at page one of the report dated 20 April 2009, makes no reference to any shoulder injury, whether by way of direct trauma or otherwise. Secondly, notwithstanding the absence of such history, Dr Patrick has included the words “… and possibly right shoulder injury” where, immediately before narrating the given history, the “nature of injury” is described.
It is clear that Dr Patrick, at the time the physical examination of the appellant was conducted, noted a “considerably restricted” range of active movement of his right shoulder. It seems that the diagnosis suggested by Dr Patrick, that being “some degree of post-traumatic subacromial bursitis/impingement”, had been made upon an assumption that the right shoulder had experienced trauma of some unspecified character. It is not known whether Dr Patrick had assumed either direct trauma involving a blow to the joint, or, that the mechanics of the fall had in some way caused traumatic strain to the joint. Given the complete absence of any history given by the patient concerning injury to the shoulder joint, Dr Patrick’s assumption, whichever it may be, is not based upon the history as recorded.
As earlier noted, both Dr Patrick and Dr Huntsdale have concluded that there is some abnormality suffered by the appellant in his right shoulder joint. It seems both practitioners have so concluded having regard to their observations following physical examination. I note in passing that the restriction of movement of the right shoulder joint as noted by Dr Patrick is substantially greater than that noted by Dr Huntsdale in his report dated 26 June 2009. Dr Huntsdale’s conclusion that the shoulder condition is related to a degenerative process is to be contrasted with that of Dr Patrick, who asserts that the shoulder disability is related to trauma. Dr Patrick’s view was expressed in the context of an acknowledgement by him that “it would be reasonable to consider obtaining in the first instance, quality, high-resolution ultrasound/right shoulder”.
There is no evidence that the ultrasound investigation suggested by Dr Patrick has been conducted, and there is no subsequent report in evidence from Dr Patrick which amplifies the matters which he raised in his report concerning the right shoulder and the relevance of its condition to the subject fall. As noted at [34], there is evidence that the insurer sought further information concerning Dr Patrick’s diagnosis through the appellant’s solicitors; however, no evidence of Dr Patrick is before the Commission other than the initial report.
It is trite to make the observation that the onus is upon the appellant to establish the nature of the injury which he alleges. There is no doubt on the evidence that he has received significant injuries to various parts of his anatomy, and indeed such is conceded by the respondent. I am not satisfied, having regard to the evidence in its totality, that Mr Stevens has established that, as a result of the subject fall, he has received an injury to his right shoulder joint. I have reached this view having regard to the absence of any clear and unequivocal evidence from the appellant in his statements concerning the fact of such injury and a description of same. I have also taken into account the absence of any evidence reasonably contemporaneous with the fall which may give weight to the suggestion made by Dr Patrick that the right shoulder joint was subjected to trauma in the fall. The evidence which I have considered includes not only the detail to be found in the appellant’s claim form, but also the notations made by various medical practitioners consulted by him at the time and shortly after the occurrence of the fall. The history as recorded by Dr Fielding in February 2008 of pain in his right shoulder which was experienced “straight away” and which was reported at work conflicts with the evidence of the appellant as found in his statements.
The Arbitrator has addressed the evidence relevant to the issue of injury at [22] and [23] of his Reasons. Following that summary, he stated:
“On balance, I cannot be satisfied on the material before me that the Applicant has discharged the appropriate onus for me to adopt a commonsense test of causation that the Applicant had sustained an injury to his right arm as a consequence of the incident of 4 June 2007.”
The Arbitrator had, earlier in his Reasons, made reference to certain authorities which address the question of causation in law. It appears to be upon the basis of those decisions, which included Kooragang and Flounders, that the Arbitrator has made mention of “a commonsense test of causation”. Whilst I respectfully agree with the Arbitrator’s conclusion that Mr Stevens has failed to discharge the onus of proof concerning the occurrence of the shoulder injury, this finding required only an evaluation of the weight of the evidence concerning the alleged fact of injury and does not involve a question of scientific proof of a matter involving conflicting expert evidence and the availability of variable inferences, as is addressed in those cases earlier mentioned. Notwithstanding the Arbitrator’s approach, I am of the view that there has been an appropriate acknowledgement and evaluation of all relevant evidence made which led him to his conclusion. In so saying, I reject the appellant’s submission that the Arbitrator had in some way failed to apply “legal tests” when determining the factual issue, as is suggested at [16] of submissions made in support of this appeal.
I note that the appellant at [17] of submissions suggests that the Commission should acknowledge what is described as the “beneficial” nature of workers compensation legislation when approaching the dispute raised in this matter. It seems that the appellant is making reference to the many observations to be found in the cases concerning workers compensation law that such legislation, being beneficial social enactments, should be construed benevolently. His Honour Glass JA made reference to the canon for the construction of workers compensation legislation in the course of his reasons expressed in the matter of Hill v Bryant (1974) 2 NSWLR 423 (at 428).
The Commission is not here dealing with a dispute as to the proper construction of the legislation. The dispute is one of fact and the principle of construction referred to by Glass JA can have no relevance to the present task facing the Commission, being evaluation of the evidence and determination of relevant fact.
I agree with the Arbitrator’s factual finding concerning alleged injury to the right shoulder and upper limb. In the circumstances, his determination is confirmed on appeal.

DECISION

The appeal is dismissed. The Arbitrator’s determination dated 4 February 2010 is confirmed.

COSTS

No order as to costs of the appeal.

Kevin O’Grady
Deputy President 18 May 2010

I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE