Transgrid v Pryor - [2014] NSWWCCPD 50

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Transgrid v Pryor [2014] NSWWCCPD 50
APPELLANT:	Transgrid
RESPONDENT:	Phillip Pryor
INSURER:	Self-Insured
FILE NUMBER:	A1-6885/13
ARBITRATOR:	Mr Robert Foggo
DATE OF ARBITRATOR’S DECISION:	20 February 2014
DATE OF APPEAL DECISION:	6 August 2014
SUBJECT MATTER OF DECISION:	Injury; challenge to factual findings; inadequacy of reasons for decision
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Everingham Solomons Solicitors
ORDERS MADE ON APPEAL:	1. The findings of the Arbitrator and orders as recorded in the Certificate of Determination dated 20 February 2014 are revoked. 2. The matter is remitted for hearing afresh by another Arbitrator. 3. No order as to costs of this appeal. 4. Costs of the original hearing before Arbitrator Foggo are to follow costs orders made on remitter.

BACKGROUND

Mr Phillip Pryor alleged that he received injury in the course of his employment with Transgrid (the appellant) on 22 and 24 February 2006. On 22 February 2006 Mr Pryor was moving heavy gas bottles from a welding trolley. It was Mr Pryor’s allegation that, during that activity, he felt pain in his neck, his right shoulder and right arm. On 24 February 2006 further injury allegedly occurred as he attempted to move a trolley. It seems, also, that Mr Pryor, by reason of favouring his right shoulder and arm, alleges that he has suffered a consequential condition in his left shoulder.
A claim made on behalf of Mr Pryor in respect of lump sum compensation was declined by the appellant. Notice of the rejection of that claim, and the reasons for that decision, was given to Mr Pryor’s solicitors by letter dated 26 April 2013 as is required by s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The reasons for that declinature were stated as follows:
“1.Your client has not sustained injury.
2.Your client’s medical condition is not causally connected to injury.
3.Employment is not a substantial contributing factor to injury.
4.Your client is not impaired as alleged and, in the alternative, any impairment does not result from injury.
5.Your client is not entitled to lump sum compensation pursuant to Section 67 by reason of amendments to the legislation.”
The dispute between the parties came before the Commission for Arbitration on 17 February 2014. Mr Pryor’s application seeking an award in respect of lump sum compensation pursuant to s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act) was heard by Arbitrator Robert Foggo. The matter proceeded to hearing and the Arbitrator delivered his determination of the dispute extempore on that day. The Arbitrator made the following finding with respect to the dispute as to injury:
“Accordingly, I’m appropriately persuaded that both the Applicant’s cervical, left and right shoulder injuries arose out of the work incidents [sic] of 22^nd of February 2006. That is, he suffered injury to those body parts on those occasions and that his employment with the Respondent was a substantial contributing factor to those injuries and conditions.”
Following the delivery of the Arbitrator’s reasons and the making of orders with respect to an assessment by an Approved Medical Specialist, a document headed “Statement of Reasons – Ex Tempore Orders” was issued by the Arbitrator in the following terms:
“In this matter an arbitration hearing was held on 17 February 2014 where I, acting as Arbitrator, used my best endeavours to bring the parties to an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the arbitration hearing.
A sound recording of the reasons given is available to the parties.
The orders made are as follows:
1.This matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the applicant’s whole person impairment to his cervical spine, and left and right upper extremities (shoulders) with dates of injury being 22 & 24 February 2006.
2.The documents to be referred to the Approved Medical Specialist are those admitted in these proceedings, namely the Application to Resolve a Dispute, the Reply, and the Applications to Admit Late Documents filed 29 August 2013, 21 October 2013, 12 November 2013, 6 December 2013 and 24 January 2014, together with the attached documents.
3.The respondent is to pay the applicant’s costs as agreed or assessed, and I certify a complexity uplift of 20% for the reasons delivered orally at the arbitration hearing, which uplift is to apply to both parties.”
The orders noted above were confirmed by the issue of a Certificate of Determination dated 20 February 2014. The decision made by the Arbitrator with respect to the disputed issue of injury, which is noted at [3] above, is the decision which is challenged on this appeal.

PRELIMINARY MATTERS

Thresholds

I find that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Each of the parties has submitted that this appeal may proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to all relevant circumstances, I am of the view that the appeal may be determined on the papers.

ISSUES IN DISPUTE

The issues in dispute in the appeal concern questions as to whether the Arbitrator erred in the following respects:
(a)     failing to state sufficient reasons for his determinations of fact concerning the receipt by Mr Pryor of the injuries alleged;
(b) admitting into evidence the report of Dr Brian J Noll, dated 19 March 2009, in contravention of the terms of cl 49 of Pt 9 of the Workers Compensation Regulation 2010;
(c)     failing to address the evidence of the expert medical witnesses, in particular those opinions expressed by those witnesses that were conflicting, when determining questions of fact;
(d)     in determining that Mr Pryor had received an injury to his left shoulder, and
(e)     determining the dispute upon a basis not argued at the hearing, giving rise to a denial of procedural fairness.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced. A copy of that transcript has been made available to each party. At the commencement of the hearing the transcript records that each party objected to a number of the documents which had been filed with the Commission. Argument included an objection taken by the appellant to a “late” report from Dr Bodel, orthopaedic surgeon, and an objection to the tender of a report of Dr Noll, orthopaedic surgeon, which had been tendered by Mr Pryor. Argument concerning these matters is recorded on the first 11 pages of the transcript. It must be noted that no express ruling appears to have been made by the Arbitrator concerning the disputed documents at that time. It is nonetheless clear that all the documents which had been identified by the Arbitrator at the outset of the hearing (at T1), including the reports of Dr Bodel and Dr Noll, ultimately found their way into evidence.

Mr Pryor’s evidence concerning injury

Having regard to the state of the evidence as presented by each party, it is necessary to examine both the lay and medical evidence concerning the disputed issue of injury. There are three written statements made by Mr Pryor in evidence. The first statement dated 3 March 2006, tendered by Mr Pryor, was prepared by an investigator appointed by the appellant. In that statement Mr Pryor describes an injury occurring on “22 March [sic, February] 2006” as he physically removed gas bottles from a welding trolley. The injury was described as “a slight pulling sensation just under [his] right shoulder blade. The pain he experienced during that manoeuvre “went away”. He did not report the incident to anyone in authority. Mr Pryor continued performing his work and stated that he “felt no pain in his shoulder”. On 24 February 2006, as he was dragging a welding trolley, he felt “a pulling sensation in [his] right shoulder blade”. This occurred as he forcefully attempted to manoeuvre the trolley over a “lip” which obstructed movement of the trolley.
Mr Pryor reported the pain he experienced to Mr Andrew Brice, his leading hand. The pain in Mr Pryor’s right shoulder became worse over the weekend and by Saturday afternoon he started experiencing pins and needles in the fingers of his right hand. His right arm was “a bit numb around the elbow”.
Mr Pryor attended the emergency department of Tamworth Base Hospital on Sunday morning. He was certified unfit for work. He notified his employer on the Monday that he would be absent by reason of incapacity. He underwent physiotherapy sessions with Mr Michael Bird.
The second statement made by Mr Pryor is dated 16 May 2011. He stated that he was absent from work for approximately two weeks following the February 2006 injury. He returned to work on restricted duties, avoiding any heavy manual work involving lifting more than 10kg. In October 2008 he suffered a second injury whilst he was on annual leave. He slipped on a grassy bank and put out his right arm to support himself causing an aggravation of his shoulder pain.
The third statement in evidence is one prepared by Mr Pryor’s solicitors dated 21 August 2013. At [4] of that statement, it is clear that Mr Pryor has confused the circumstances of injury occurring on 22 February 2006 with those which occurred on the following Friday. He stated that in the years since the injury, the pain had spread from his shoulder blade into his back and neck and that it had “deteriorated significantly”. He stated that he had pain, weakness and numbness in his right arm. No attention is given in that statement to detail of treatment, in particular surgical treatment, which has apparently taken place since the subject injury.
A report of Dr Gordon Dandie, neurosurgeon, dated 25 June 2007, is in evidence. That report records that Mr Pryor underwent a neurosurgical procedure at Westmead Private Hospital on Thursday, 21 June 2007. No history is recorded in that report. Dr Dandie certified that Mr Pryor would be unfit for work until the date of his post-operative review which had been fixed for 14 August 2007.
A copy of correspondence from Dr Rowland Loeve, general practitioner, addressed to the appellant’s Injury Management Co-ordinator, Mr Paul Spencer, dated 10 August 2007 is in evidence. Reference is made to Mr Pryor’s “neck injury”. Dr Loeve stated that Mr Pryor had made a reasonable recovery, with physiotherapy, and that he was ready to return to work as a truck driver with limitations concerning lifting. A clearance for return to work was anticipated by Dr Loeve in mid-August 2007.
Correspondence dated 14 August 2007 from Dr Dandie to the appellant confirmed that Mr Pryor was fit to return to work, performing normal occupational duties with a weight-lifting restriction of 5kg or less. Dr Dandie anticipated an increase to 10kg or less in mid-September 2007.
An x-ray and ultrasound report from Dr Rohit Singh, dated 10 November 2008, concerning Mr Pryor’s right shoulder revealed “a large full thickness tear of the supraspinatus tendon, with restriction of the torn tendon fragments”. Moderate osteoarthrosis of the acromioclavicular joint was also revealed.
An MRI of the right shoulder dated 5 January 2009 revealed the following:
“-     There is AC joint OA and spurring of the anteroinferior aspect of the acromion laterally.
-        There is a complete tear of the supraspinatus tendon with associated atrophy and fatty infiltration of the muscle.
-        There is a full thickness tear of the infraspinatus tendon with associated muscular atrophy.
-        There is tendinosis of the proximal long head of biceps tendon with a possible associated labral tear.”
Also in evidence is a report of Dr Robert Sharp, orthopaedic surgeon, dated 12 January 2009 addressed to Mr Pryor’s general practitioner, Dr LD Allen, of Tamworth. Of significance, that report records Dr Sharp’s opinion of the MRI findings as follows:
“The MRI scan reveals complete rupture of the supraspinatus. In addition to that the supraspinatus has retracted as far back as the level of the superior margin of the superior glenoid labrum. There is quite a lot of fat infiltration in that muscle, much more than one would expect for a rupture of only three months duration. I suspect that his original injury several years ago caused a very large rupture of supraspinatus and Phil had simply been managing with only a small portion of it. The MRI suggests that there is also a tear of infraspinatus tendon”.
There is a summary of “operative details” signed by Dr Simon Hutabarat, orthopaedic surgeon, relating to surgery conducted by that practitioner on 17 June 2009. The procedure performed is recorded as being “right shoulder arthroscopy, bursectomy, RCR and biceps tenodesis”. That procedure occurred on 17 June 2009.
A report of Professor George Murrell, shoulder surgeon, addressed to Dr Allen, dated 10 February 2011 is in evidence. A history is there recorded that Mr Pryor developed a right shoulder problem which began on 24 February 2006 when he “grabbed a welding trolley and tried to pull and injured his shoulder and neck at work”. Dr Murrell recorded the history of neck surgery. It is also noted that Mr Pryor had “a second fall [sic] three years later, and then came to surgery for a rotator cuff tear”. Professor Murrell expressed the view that there was “a good chance that [he] could repair the defect [in the right shoulder] with a PTFE Patch”. The surgery anticipated by Professor Murrell was conducted by him on 19 July 2011.
There is in evidence a seven page hand written report from Dr Allen. That report provides a clear and detailed history of medical treatment which has been provided to Mr Pryor since the injury in February 2006 as well as some detail of past history. Dr Allen recorded a history of injury occurring on 22 February 2006, which is consistent with Mr Pryor’s statement dated 3 March 2006. A past history of left-sided chest/scapular/arm pain in March 2005 is recorded. Dr Allen recorded that at that time Mr Pryor was admitted to Tamworth Base Hospital and was ultimately treated following diagnosis of “degenerative cervical spine disease”. At that time an MRI of Mr Pryor’s cervical spine showed a C6/7 disc protrusion effacing the left C7 nerve root and compromising the right foramen. There was also demonstrated mild foraminal compromise at C5/6. Dr Allen recorded that those symptoms appeared to have settled considerably by 1 April 2005.
When examined by Dr Allen on 3 March 2006, Mr Pryor reported pain behind the right scapula. Mr Pryor also complained of paraesthesia in his right middle and index fingers. Dr Allen diagnosed a right trapezius muscle strain and probable aggravation of his pre-existing C6/7 disc protrusion, causing right C7 nerve root irritation. Dr Allen expressed the view that the pre-existing C6/7 disc protrusion was probably aggravated by straining at work on 22 February 2006 and 24 February 2006 and that the right scapular pain dates from these incidents.
Dr James Bodel was qualified by Mr Pryor’s solicitors to provide an opinion for the purposes of this litigation. Dr Bodel provided reports dated 23 December 2010, 29 November 2012 (x2) and 21 October 2013. Dr Bodel under the heading of “Summary of Injuries”, recorded two dates of injury, being injury to the neck and right arm on 22 February 2006 and injury to the right shoulder in October 2008. The history recorded concerning the February 2006 incident appears to confuse the events, as stated by Mr Pryor, which occurred on 22 February 2006 with those that occurred on 24 February 2006.
It is of significance that Dr Bodel appears in his reports to have made the assumption that the injury to the right shoulder which occurred in October 2008, was received in the course of employment. No attempt has been made to correct the history recorded by Dr Bodel concerning that incident. In the first of Dr Bodel’s reports he expressed a diagnosis of a disc injury at the cervical level, causing C6 nerve root irritation in the right upper limb and a rotator cuff injury to the right shoulder. Dr Bodel expressed the view that Mr Pryor’s “ongoing disabilities are related to the work injuries”. He had earlier, at page four of his report, noted “the history of [Mr Pryor’s] two episodes of injury at work”. Dr Bodel’s assessment of whole person impairment found in his report of December 2010, addressed the aggravation of the cervical condition, which included a consideration of persisting symptoms and signs of radiculopathy and injury to the right shoulder. The November 2012 report provided by Dr Bodel includes a notation that, since Dr Bodel’s earlier assessment, Mr Pryor had developed an “injury to the left shoulder”. Dr Bodel records that that injury “came on gradually while favouring that side [sic] to protect the injured right side”. Dr Bodel again made an assessment of whole person impairment which was expressed as being in respect of “the injury that occurred on 22 February 2006”. On this occasion Dr Bodel found that there was “rateable pathology in both shoulders”. He records that “the right shoulder was initially injured and then re-injured at work and there has been a consequential development of left shoulder pain and stiffness while recovering from these injuries”. Dr Bodel’s assessment included an allowance in respect of impairment arising from the left shoulder injury.
Mr Pryor tendered a copy of a report of Dr Noll addressed to the appellant dated 19 March 2009. The appellant had arranged for Dr Noll to examine Mr Pryor and to provide a report. No reliance was placed upon the opinion of Dr Noll by the appellant at the hearing before the Arbitrator and, as earlier noted, objection was taken by it to the inclusion of this report in evidence. It seems that, notwithstanding the arguments advanced on behalf of the appellant, the Arbitrator had admitted the report.
Dr Noll obtained a detailed history from Mr Pryor which is recorded in his report under the heading of “Summary and Diagnosis”. Dr Noll noted that Mr Pryor presented with a history of onset of pain and paraesthesia in relation to his right upper extremity following a work related injury on 22 February 2006. Dr Noll also noted that investigations revealed pre-existing degenerative change predominantly at the C5/6 level, with C6 nerve root impingement. Dr Noll further noted an exacerbation of Mr Pryor’s symptoms which occurred when he fell backwards onto his outstretched arm in October 2008. An MRI scan of the right shoulder in January 2009 revealed evidence of a long standing rotator cuff tear which Dr Noll stated “clearly would have predated the injury sustained in October 2008”. Dr Noll, upon the assumption that the neck symptoms first developed in the course of Mr Pryor’s work, observed that it would appear “that his employment was a substantial contributing factor”. Dr Noll further noted that that injury was “superimposed on pre-existing degenerative change of the cervical spine”.
So far as the right shoulder injury is concerned, Dr Noll appears to have accepted that there were symptoms experienced in that joint at the time of the injury sustained in February 2006.
The appellant relied upon the evidence of Dr Anthony Smith, orthopaedic surgeon, found in two reports dated 9 April 2013. Dr Smith had been qualified to provide those reports for the purposes of this litigation. Dr Smith recorded a detailed history which included some inconsistencies with other evidence, however those matters are of little consequence. It was Dr Smith’s opinion that the evidence established that Mr Pryor had suffered from cervical degenerative disease before the work injury which occurred on 22 February 2006. Dr Smith accepted that the circumstances of injury on 22 February 2006, which were confused with the events which occurred on 24 February 2006, would have given rise to an aggravation of that neck condition. Dr Smith did not accept that there was any injury to either shoulder occurring in February 2006. A diagnosis of rotator cuff disease with associated glenohumeral arthritis of the right shoulder was diagnosed by Dr Smith, and it was stated that such condition is a constitutional malady and was not caused by the work accident of February 2006. Dr Smith had recorded a history that Mr Pryor “is getting pain and disability in the left shoulder, not dissimilar to the right shoulder”.

When assessing whole person impairment, Dr Smith noted that Mr Pryor had developed symptoms “emanating from his cervical degenerative disease in the incident of [February 2006] pulling on the trolley”. Dr Smith made reference to the letter of Dr Allen dated 18 April 2006 which, it was said, “would suggest that [Mr Pryor] was largely better at the time of the writing of that letter”. Dr Smith stated that Mr Pryor had an arthritic condition present in his neck, not an injury to his neck. Taking into account the surgical intervention at the cervical spine, an assessment of 15 per cent whole person impairment was made. So far as the shoulders were concerned, Dr Smith expressed the opinion that any impairment in the right shoulder was “entirely consequent to his glenohumeral arthritis, and not the accident of 22 February 2006”.
So far as the left shoulder was concerned, Dr Smith noted that that joint had “become symptomatic without accident or injury, possibly due to the development of rotator cuff disease, which is unremarkable at [Mr Pryor’s] age and has exactly the same assessable impairment as the right. That is not related to the accident either”. The right whole person impairment was assessed at eight per cent.
Much of the material tendered on behalf of the appellant related to Mr Pryor’s medical history dating back to the early 1980’s. That material, generally, was not relevant to the matters raised before the Arbitrator. Any relevant documentation is referred to in the course of discussion below.

Submissions before the Arbitrator

Mr Macken, solicitor, who appeared on behalf of the appellant before the Arbitrator, confirmed that the “issues” raised for determination concerned “injury, causation and substantial contributing factor”. Mr Best of counsel, who appeared on behalf of Mr Pryor before the Arbitrator, confirmed that the claim concerned an alleged injury to the cervical spine and the right shoulder “in February between [sic, on] 2 [sic, 22] and 24 February 2006”. Mr Best further stated that it was alleged that as a result of the work injuries, Mr Pryor had suffered a consequential condition in his left shoulder.
The Arbitrator’s attention was drawn by Mr Best to correspondence dated 16 May 2006 from the appellant to Mr Pryor, which dealt with the question of liability in respect of injury said to have occurred on 22 February 2006. That correspondence noted the appellant’s acceptance of liability “associated with a strain of [Mr Pryor’s] trapezius, together with a temporary aggravation of [his] pre-existing cervical spine condition”. It was asserted in submissions that the appellant had, since the making of that claim, “paid for all periods of incapacity and all the relevant medical and treatment related expenses in respect of [Mr Pryor’s] cervical and right shoulder condition”. It seemed to be argued that the appellant’s acceptance of the claim gave rise, in some way, to an estoppel. It was put that the occurrence of the injury in 2008 does not “obliterate” Mr Pryor’s entitlement to receive compensation in respect of “the work related component of his right shoulder injury”.
It was argued on behalf of Mr Pryor that the evidence supported a finding of causal nexus between the relevant work incidents and the injuries as alleged, and that referral for assessment by an Approved Medical Specialist was appropriate. So far as the left shoulder injury was concerned, reference was made in submissions to the evidence of Dr Bodel, where it was recorded that the left shoulder problems “came on gradually while favouring that side to protect his right side”. Reliance was also placed by Mr Best upon the evidence of Dr Noll. It was further argued that the evidence of Dr Smith as to causation should be rejected.
Submissions put by Mr Macken on behalf of the appellant were wide ranging and commenced with an assertion that the evidence does not establish the occurrence of injury. The opinion of Dr Bodel was the subject of criticism upon the basis that that practitioner did not have a full and correct history, in particular relating to left shoulder problems in 2005 and right shoulder problems some years earlier. Those problems were recorded, in the medical notes tendered on behalf of the appellant, as involving spontaneous dislocation of the right shoulder joint.
With respect to the neck injury as alleged, Mr Macken argued that the radiological evidence before the Commission established that there was evidence of relevant pathology in the neck in 2005 and that there was “no demonstrable alteration” of that “pathology” following the 2006 injury. It seemed to be argued that, whatever may have happened in 2006, “did not result in any pathology or any pathological alteration” in Mr Pryor’s cervical spine.
With respect to the alleged right shoulder injury, Mr Macken argued that the evidence did not support a conclusion that injury to the right shoulder occurred in February 2006. The radiological material which establishes the state of that shoulder first came into being, it was argued, in 2009. That investigation followed the non-work related injury of October 2008 which, it was argued, clearly involved an injury to the right shoulder. Mr Macken argued that a close examination of the clinical notes of Mr Pryor’s general practitioner reveals that there was no complaint in relation to the shoulder before the incident in 2008. It was accepted that there were complaints of “tingling into [Mr Pryor’s] fingers”.
The appellant further argued that, if it be accepted that the right shoulder was not injured as alleged, the argument that the left shoulder disability was a consequence of the work injury must fail. Dr Bodel’s observations in relation to favouring of the shoulder joint were the subject of criticism, based upon an absence of any relevant history having been recorded. Mr Macken emphasised the apparent assumption made by Dr Bodel that the 2008 injury was work related. It was put that the history as recorded was inadequate, inaccurate and that the report should be given “no weight at all”.
Attention was drawn to the evidence of Dr Sharp concerning the “long standing” pathological changes in the right shoulder which, by inference, were related to the 2006 injury. Dr Sharp, it was emphasised in submissions, did not have the detailed and complete history of right shoulder problems dating back to the 1980’s.
Reference was made, in the course of submissions, to the records produced by the Tamworth Base Hospital, concerning treatment in 2006. Emphasis was placed in argument upon the absence of any history of work related injury recorded in those notes. It was submitted that, as earlier argued, the evidence does not support the occurrence of injury as alleged. General submissions with respect to the operation of s 9A of the 1987 Act were put, and it was submitted that the Arbitrator would not be satisfied that Mr Pryor’s employment was a substantial contributing factor to injury as alleged.
In reply to the appellant’s arguments, Mr Best drew attention to the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 in support of an argument that Mr Pryor does not “have to demonstrate a worsening of pathology, just simply a worsening of the symptoms” to establish entitlement to compensation. It was also argued that the Arbitrator would accept the occurrence of injury in 2006, given the near contemporaneous statement made by Mr Pryor to a representative of the appellant. That statement asserted both neck and shoulder injury having occurred in February 2006. Brief argument was advanced seeking to refute those submissions put on behalf of the appellant (at T26).

The Arbitrator’s decision

At the conclusion of submissions by counsel, the Arbitrator immediately commenced stating his Reasons for his determination. Those Reasons commence at T27 and it is noteworthy that no attempt was made by the Arbitrator to summarise the subject matter of the dispute, nor was there any statement by him of the issues which required determination.
The first matter addressed by the Arbitrator appears to have been Mr Macken’s submission concerning the absence of complaint made by Mr Pryor of shoulder disability following the alleged injuries. That argument appears to have been rejected upon the basis that the “Doctor’s notes, in respect of the consultation of 21 March 2006” included a notation that Mr Pryor “still had mild niggle in the right shoulder”. The Arbitrator further observed that the clinical notes made reference to Mr Pryor’s scapula and to the trapezius. The Arbitrator appears to have concluded that there was complaint made of ongoing shoulder problems at the relevant time.
The Arbitrator then proceeded to address the questions raised concerning the alleged injury to the cervical spine. It appears to have been accepted by the Arbitrator that radiological investigations which occurred before and after injury, demonstrated “an equivalent condition” of Mr Pryor’s cervical spine. That fact, observed the Arbitrator, “is neither here nor there”. The reason given for that assertion was stated to be founded upon Mr Pryor’s evidence and the medical evidence. The Arbitrator did not elaborate those reasons, nor did he identify the evidence to which he had referred. He immediately proceeded to consider the evidence of Dr Smith. The reasoning as expressed by the Arbitrator is, to an extent, confusing. However it is clear that the Arbitrator rejected the opinions expressed by Dr Smith.
The Arbitrator (at T28) proceeded to address the evidence of Dr Bodel. It was accepted that, as argued on behalf of the appellant, Dr Bodel had appeared to erroneously treat the 2008 injury as being work related. Having reached that conclusion, the Arbitrator stated:
“But it seems to me that the – that does not – it therefore does not entitle findings that the – that there’s been no injury to the shoulder in the work injury on 22 February 2006” (at T29).
The Arbitrator proceeded to address the evidence of Dr Sharp. An extract of Dr Sharp’s report was then misquoted by the Arbitrator. The error appears in the first sentence of the extract where the Arbitrator incorrectly quoted Dr Sharp as saying “MRI scan never reveals complete rupture”. The Arbitrator thereafter correctly recorded Dr Sharp’s statement as found in the report (noted at [20] above) and proceeded to state that “on the balance of probabilities” the injury to the right shoulder, being rupture of the supraspinatus, occurred on or about 22 February 2006 in the work incident.
The Arbitrator returned to the subject of shoulder injury and considered the evidence of Dr Smith. He stated (at T29) that he rejected the opinion of Dr Smith “that there was no injury to either shoulder on 22 February 2006”. The reason given for that rejection appears to have been, as stated by the Arbitrator, “the existence of abundant and persuasive evidence that the shoulder was – the shoulder injury, or the rupture of the supraspinatus, the right shoulder was – occurred in the injury at – incident at work on 22 February 2006”. The evidence relied upon was not identified by the Arbitrator.
The Arbitrator, it seems, proceeded to consider Mr Pryor’s allegations concerning disability in his left shoulder, where it was said (at T29): “it seems to me that the well-known progression from an injury to one shoulder to damage to the other one, as a consequential condition, has certainly been the case here”. The Arbitrator accepted the submission put on behalf of Mr Pryor that Dr Bodel’s evidence includes a report of left shoulder disability coming on gradually, while “favouring that side to protect the injury to the right side”. Argument raised concerning this matter by the appellant, whilst not identified with any precision, was rejected by the Arbitrator.
The Arbitrator made reference to the evidence of Dr Noll and observed that there was “support” for, it seems, consequential disability in the left shoulder being related to the right shoulder injury. The Arbitrator immediately stated “but due to the controversy as to whether or not that report should be concluded [sic] or not, that - although I’ve heard the submissions from Mr Best in that regard, I reached my conclusion in relation to the work being the cause of the right shoulder injury and the consequential injury of the left shoulder injury without reference to the opinion of Dr Noll”.
The Arbitrator proceeded to again consider the evidence of Dr Smith. The reasons as expressed indicate that Dr Smith’s opinion, concerning, as described by the Arbitrator, a “hobby-horse of cervical degenerative disease”, was rejected. The finding was made that the severe neck symptoms reported by Mr Pryor were “as a result of the injury to his neck and incident at work on 22 February 2006” (at T30).
The Arbitrator then proceeded to make the finding concerning the receipt of injuries as is noted at [3] above.

DISPOSITION OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The appellant’s first complaint, Ground (a), is that the Arbitrator has failed to provide adequate reasons for his decision. That there is an obligation upon an Arbitrator to provide such reasons is clear. Failure to meet that obligation constitutes error of law. This ground is closely associated with Ground (c) which asserts relevant error “in the consideration and assessment of the evidence in determining disputed issues”. As was stated by Santow JA in Haris v Bulldogs Rugby League Club [2006] NSWCA 53; Aust Tort Reports 81-838 (Haris) at [121]:
“Decisions on appellate review, such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, bear more on the adequacy of reasons than their sufficiency. Sufficiency of reasons is concerned with whether there is a process of reasoning sufficiently revealed to permit appellate review and detect appellable error; rather like the invocation to show one’s workings in answering a problem in maths so the source of any error is apparent. Reasons are likely to be sufficient precisely because they are explicit enough to permit the actual appellable error to be revealed; for example in revealing a failure to take account of incontrovertible facts that demonstrates that the trial judge’s conclusions were erroneous. Another species of appellable error is failure to engage with or enter into the contested issues; see Maylan v The Nutrasweet Company [2000] NSWCA 337 at [61]- [68], Jones v Bradley [2003] NSWCA 81 at [128]- [131]. It too represents an insufficiency of reasons.”
It seems to me that the appellant’s complaint requires an examination of the Arbitrator’s Reasons to determine whether, or not, those matters stated by him sufficiently demonstrate his reasoning and, more particularly, whether he has “engaged with” or entered into the contested issues as he was required.
It was the appellant’s argument before the Arbitrator that there had been no injury of significance to Mr Pryor’s right shoulder in February 2006; that the 2008 non-work injury plainly involved a significant shoulder injury, and that investigations were first conducted after that latter injury which disclosed the significant tear (which is noted at [19] above). The point was also made in argument that medical treatment rendered immediately following the 2006 incident was founded upon a diagnosis, not concerning the shoulder, but concerning the cervical spine injury.
The facts of the present matter are moderately complex. The manner in which the evidence had been presented, including the tender of Dr Bodel’s evidence, which was accepted by the Arbitrator as containing a probable error, compounded this complexity. The submissions put by the appellant required, in my view, a careful analysis by the Arbitrator of the evidence as a whole to enable a proper assessment of the validity or otherwise of such argument. Such approach was not adopted by the Arbitrator, rather there was a cursory reference to the notations found in the clinical notes of Dr Allen. It seems that the Arbitrator’s conclusion concerning the occurrence of right shoulder injury in 2006 was substantially founded upon the brief notations of “niggling” in the shoulder without there being any meaningful “engagement” with the issues raised by the appellant as discussed by Santow JA in Haris.
It is the case that the Arbitrator, later in his Reasons, returned to the subject of the disputed right shoulder injury and made reference to the opinion of Dr Sharp. He relied on that evidence to found an inference that the rupture revealed in the investigations occurred in February 2006. The difficulty with the Arbitrator’s approach is that Dr Sharp made reference to “an injury some years ago that started all this off” (report dated 12 January 2009, noted at [20] above). It is clear that Dr Sharp, as was appropriate given the apparent history given on that occasion, had accepted the occurrence of the matter in dispute, namely the occurrence of a shoulder injury in the 2006 incident/s. Dr Sharp’s opinion would support an argument that, as at 2008, Mr Pryor carried an “old” injury to his shoulder, being the tear diagnosed. The question remained as to whether contemporary evidence was such that a conclusion of relevant injury in 2006 could properly be reached.

I am of the opinion that the Arbitrator’s reliance upon Dr Sharp’s opinion, stated after reaching his factual finding concerning the right shoulder injury, does not constitute a sufficient reason, or basis, for his ultimate conclusion that relevant injury was received in 2006.

The Arbitrator’s apparent acceptance of the evidence of Dr Bodel concerning the occurrence of alleged injury to the cervical spine, and his rejection of the evidence of Dr Smith, is not, in my view, attended by sufficient reasons as is required. I am of that view given the Arbitrator’s acceptance of the deficiency found in the history as recorded by Dr Bodel and the absence of any evaluation by him of either the weight of that practitioner’s evidence having regard to that deficiency or argument raised by the appellant.

Grounds (a) and (c) concerning the Arbitrator’s findings of neck injury, right shoulder injury and consequential left shoulder condition have, in my view, been made out. Such conclusion requires revocation of the Arbitrator’s determination. In the circumstances it is not necessary to consider the other grounds raised by the appellant. However, in my view, it is appropriate that some attention be given to the remainder of the appellant’s grounds.

Ground (b)

The appellant is correct in its submission that the evidence of Dr Noll, found in his report dated 19 March 2009, was inadmissible having regard to the terms of reg 49 of the Workers Compensation Regulation 2010. The terms of that Regulation prohibited the admission of Dr Noll’s evidence given that Mr Pryor had also adduced evidence from Dr Bodel, whose speciality, orthopaedic surgery, corresponded to that of Dr Noll. As earlier noted the Arbitrator did not appear to expressly state during proceedings that the report had been admitted. Notwithstanding that fact, reference was made to the evidence in the course of Reasons, albeit that the Arbitrator eschewed any reliance upon that report in reaching his conclusions. The second “order”, noted in the Arbitrator’s “Statement of Reasons Extempore Orders” makes clear that all documents tendered, including Dr Noll’s report, had been admitted.

Whilst acceptance of the tender of Dr Noll’s report in contravention of the Regulation constitutes error, I do not consider that such error is relevant in that it cannot be said that such error relevantly affected the Arbitrator’s decision: s 352(5). I reach that conclusion having regard to the Arbitrator’s statement, which must be accepted, that he placed no reliance upon that evidence in reaching his conclusion.

Ground (d)

The complaint raised under this Ground has been addressed where Grounds (a) and (c) were addressed above.

Ground (e)

Complaint is made that the Arbitrator placed reliance upon the hand written notes of Dr Allen in circumstances where no submission had been put by Mr Pryor as to the proper construction and relevance of those notes, and the appellant had not had the opportunity to address as to the content of those notes. There is some substance to that complaint. In submissions on this appeal, the appellant disputes the Arbitrator’s interpretation of those notes.
My consideration of the notes leads me to conclude that there is little doubt as to what is there recorded, however the notes are in a state of some confusion and one entry of possible relevance appears, perhaps, to be incomplete. As submitted by the appellant, this matter and any controversy as to the content of the notes, may properly be addressed should, as it seeks, the matter be remitted for hearing afresh.
Whilst it is always preferable, and consistent with legislative intent, that a decision be made on appeal in place of the decision revoked, I have reached the view that the state of the evidence and argument raised requires that the matter be remitted to another Arbitrator for consideration afresh. Appropriate orders appear below.

DECISION

The findings of the Arbitrator and orders as recorded in the Certificate of Determination dated 20 February 2014 are revoked.
The matter is remitted for hearing afresh by another Arbitrator.

COSTS

No order as to costs of this appeal.
Costs of the original hearing before Arbitrator Foggo are to follow costs orders made on remitter.

Kevin O'Grady
Deputy President

6 August 2014

I, JACQUELINE HAGGER, 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