Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan - [2016] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Notice of Intention to Appeal to the Court of Appeal filed on 12 May 2016
CITATION:	Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23
APPELLANT:	Trustees of the Roman Catholic Church for the Diocese of Parramatta
RESPONDENT:	Monique Brennan
INSURER:	Catholic Church Insurance Limited
FILE NUMBER:	A1-5981/15
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	24 December 2015
DATE OF APPEAL DECISION:	15 April 2016
SUBJECT MATTER OF DECISION:	Fresh evidence on appeal; interlocutory decisions; consequential conditions
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge and Murray
Respondent:	Shine Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 24 December 2015 is confirmed.

INTRODUCTION

These proceedings involve a claim by Monique Brennan (the respondent), a school teacher, for compensation pursuant to ss 60 and 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury involving the power of speech, together with alleged consequential conditions of her cervical spine and shoulders.
It is common ground that the respondent is entitled to compensation in respect of the injury involving her speech. Her entitlement to compensation for the alleged consequential conditions is in issue. The appellant appeals against the decision of a Senior Arbitrator that the alleged consequential conditions ‘resulted’ from the conceded injury involving the respondent’s speech.

BACKGROUND

The respondent was employed by the appellant from about 2002. She taught various classes, including physical education. As at 5 April 2011 (the deemed date of injury) she taught at a school located next to a main road. She said that she had to “speak even more loudly when conducting classes outside”.
The respondent developed problems with her throat and her power of speech from “around March 2011”. She carried out restricted duties in the office until February 2013, at which stage she underwent vocal cord augmentation surgery. This did not assist. She underwent various other treatments, including speech therapy. Ultimately she was medically retired by the appellant, which accepted liability to pay workers compensation for the speech injury.
The respondent stated that she developed pain in her neck in about March/April 2011, and that this pain spread into her shoulders from about October 2011.
On 9 April 2014 the appellant’s insurer issued a s 74 notice denying injury in respect of the neck.
Dr Endrey-Walder, a general surgeon, furnished the respondent’s solicitors with a report dated 26 August 2014, in which he assessed whole person impairment at six per cent (cervical spine), seven per cent (right upper extremity – shoulder) and seven per cent (left upper extremity – shoulder). Dr Williams, an ear, nose and throat surgeon, reported to the respondent’s solicitors on 9 April 2015, assessing whole person impairment at eleven per cent in respect of the injury to speech.
Dr Noyce, an ear, nose and throat surgeon, assessed the respondent at the request of the appellant’s insurer and reported on 3 September 2015. He also assessed eleven per cent whole person impairment in respect of the respondent’s speech.
A claim pursuant to s 66 of the 1987 Act was made on 21 May 2015, consistent with the respondent’s above assessments, for 28 per cent whole person impairment. The appellant’s insurer issued a further s 74 notice dated 23 September 2015. It denied the occurrence of injury, and also the presence of “any consequential condition”, involving the cervical spine and shoulders.

THE ARBITRAL PROCEEDINGS

Proceedings in the Commission were commenced by an Application to Resolve a Dispute registered on 21 October 2015 (the Application).
The matter was heard at an arbitration hearing on 23 December 2015. Mr Niven of counsel appeared for the respondent and Ms Wood of counsel appeared for the appellant. No oral evidence was adduced, the matter was conducted on the written material and counsel addressed. It was common ground that the respondent suffered employment injury involving muscle tension dysphonia, which resulted in eleven per cent whole person impairment. At issue was “whether she suffers a consequential condition in her cervical spine and right and left upper extremities”.
The Senior Arbitrator delivered an oral decision on 24 December 2015. She found that the injury to the respondent’s neck was consequential to the speech injury. She also found there was “sufficient evidence to also refer the question of permanent impairment resulting from the condition in Ms Brennan’s shoulders to an Approved Medical Specialist”.
The Certificate of Determination and Statement of Reasons – Extempore Orders dated 24 December 2015 (Statement of Reasons) contained the relevant finding:
“I find that the Applicant suffers consequential conditions in her neck and in her shoulders resulting from the injury to her voice.”
The matter was referred to an Approved Medical Specialist (AMS) to assess “permanent impairment of the Applicant’s cervical spine and right and left upper extremities”, these to be combined with the agreed permanent impairment in respect of the voice. There was also a general order for payment of the respondent’s expenses pursuant to s 60 of the 1987 Act in respect of the neck and shoulders.

ISSUES IN DISPUTE

The Application – Appeal Against Decision of Arbitrator (the Appeal) identified the following grounds in respect of which the Senior Arbitrator was argued to have erred in fact and law:
(a)     in her consideration of the report of Dr Wilcox dated 18 July 2015 and her rejection of that doctor’s opinion;
(b)     in failing to consider whether there were “psychological, mood or pain disorder causes” for the respondent’s neck and shoulder symptoms, and in finding that “pain symptoms alone” in the neck and shoulders were sufficient to establish the consequential conditions, and
(c)     in determining that the report of Dr Endrey-Walder “supported the presence of a consequential condition in the shoulders”. It was said that she failed to reconcile his opinion with those of Dr Potter and Dr Wilcox.

ON THE PAPERS

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 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 as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 provides that, if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·        a schedule of the fresh or additional evidence;
·        a copy of the fresh or additional evidence;
·        a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·        submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
The respondent, in her Notice of Opposition to Appeal, stated that she sought to rely on “new evidence”, being a report of Dr Kneebone dated 3 October 2014. It was stated on her behalf that this doctor was “a psychiatrist retained by OnePath in relation to our client’s superannuation claim”. The respondent submitted that:
“…this document directly addresses a fact in issue in the substantive proceedings (discussed at the conciliation-arbitration, but not in the initial telephone conference between the parties) and as ground for the Appellant’s appeal.”
The respondent submitted that admission of the document was in the interests of justice and would not prejudice the appellant. Reference was made to s 367 of the 1998 Act.
The appellant, in its Submissions in Reply dated 1 April 2016, opposed admission of the document. It was submitted that it “appears to have been available to the respondent throughout the course of these proceedings”. It was further submitted that it was “not probative of the issue in question”, being whether the alleged consequential conditions resulted from the conceded injury involving muscle tension dysphonia.
In CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 (Strickland) Barrett JA (Macfarlan JA agreeing) at [27] said:
“In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
The submissions of the respondent on this issue do not suggest that the report of Dr Kneebone was not available to the respondent, and could not reasonably have been obtained, before the proceedings. Thus, the threshold issue pursuant to s 352(6) of the 1998 Act becomes whether a failure to grant the leave sought would cause substantial injustice. Dealing with that question, Barrett JA in Strickland at [31] said:
“The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The submission by the respondent, going to the use to be made of Dr Kneebone’s report and its probative value, is that it “assists in acknowledging our client’s treating doctor’s opinions about a pain disorder”.
Dr Kneebone’s report contains no reference to the presence or absence of a pain disorder. It contains no specific reference to any opinions of the respondent’s treating doctors relevant to the presence or absence of a pain disorder.
Dr Kneebone said under “Presenting Symptoms”:
“The above psychological symptoms occur in the context of chronic discomfort and loss of functioning arising from a laryngeal disorder known as muscle tension dysphonia. He[r] condition has given rise to throat discomfort and muscle tension and spasm in her neck, shoulders, arms and back and inability to project her voice or use her voice for long periods.”
It does not appear that Dr Kneebone, a psychiatrist, examined the respondent’s neck or shoulders. His acceptance of the causal linkage between the condition of muscle tension dysphonia and the respondent’s neck and shoulder symptoms appears to have been a matter of history. The doctor thought the respondent’s psychological symptoms at the time of his examination were “only mild and her adjustment disorder is thought to have largely but not wholly resolved”.
Dr Kneebone answered a number of specific questions addressed to him by “OnePath”. None of these sought an opinion going to any causal relationship between the laryngeal disorder and the neck and shoulder symptoms. Other than an apparent acceptance of the history, Dr Kneebone did not express an opinion on this topic. It cannot be concluded that the result in the matter would be different, depending on whether the report of Dr Kneebone is admitted. I am not persuaded that the continued unavailability of the report of Dr Kneebone would cause substantial injustice. The application to admit it as fresh evidence is refused.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator noted that the appellant had accepted liability for the speech injury involving muscle tension dysphonia. Whole person impairment in respect of that injury was agreed at 11 per cent. She noted the dispute involved the issue of whether the respondent suffered from consequential conditions in her neck and shoulders which resulted from the accepted speech injury.
The Senior Arbitrator said it was necessary that she determine this causal issue on a “commonsense consideration of the chain of causation”. She was not required to determine the nature of the pathology in those parts of the body. It was not necessary that those conditions have arisen at the same time as the accepted speech injury.
The Senior Arbitrator said she was satisfied that there was “a chain of complaint of neck pain from shortly after the date of injury”. She referred to the respondent’s statement in which she said she complained of neck and shoulder pain in 2011. The Senior Arbitrator said the lack of record in the notes of the general practitioner was not necessarily a basis for finding that such complaints were not made. Reference was made to Winter v New South Wales Police Force[2010] NSWWCCPD 121. She referred to the notes of Dr Livesey, the treating ear, nose and throat surgeon. These recorded tight neck muscles on 5 April 2011, and neck pain on 8 August 2011.
The Senior Arbitrator also referred to a number of recorded complaints of neck pain in the notes of Dr Hay, the general practitioner, starting from 31 January 2013. She noted that Dr Hay’s report said the respondent had first complained to him of neck pain on 28 February 2014, but it appeared he had not “reviewed his notes before writing that report”.
The Senior Arbitrator then referred to Dr Potter, rheumatologist, to whom the respondent was referred by Dr Livesey. Dr Potter’s report dated 30 August 2013 referred to chronic pain which can become widespread. He said clinical examination was normal, but for discomfort. It represented “chronic pain without structural cause and there is a high correlation with mood disorder”. Pain and tenderness involved “broad areas of the head, neck, upper thoracic spine, down to the braline, across the shoulders, chest wall, not below the elbows, partly lumbosacral and not in the legs”. Dr Potter concluded:
“This is musculoskeletal tension. It has different names, often called regional pain disorder. It is one of the functional somatic syndromes and requires careful management with reassurance and support, exercise therapy, pain management and usually maintaining normal activities.
This complaint may last for some years.”
The Senior Arbitrator noted a submission by the appellant that Dr Potter referred to mood disorder, but there was no pleading of “any psychological injury”. She said she was not concerned with the pathology. The respondent’s case was not that she had a mood disorder, but that she had a consequential condition affecting her neck and shoulders. The nature of the pathology was a matter for the AMS.
The Senior Arbitrator then turned to the report of Dr Endrey-Walder dated 26 August 2014. She said it supported “a connection between the injury and consequential conditions in [the respondent’s] neck and shoulders”. She referred at some length to a passage of the report at pages 20 to 21 of the Application, on which the appellant had addressed. She noted the appellant’s submission that the respondent’s complaints of pain, noted in the passage, were related to physical causes rather than use of the voice.
The Senior Arbitrator then dealt with a later passage in the report, in which Dr Endrey-Walder referred to muscle tension and pain developing when the respondent started to strain, trying to project her voice. She referred to a passage where the doctor said it was “most unlikely” that there was “primary shoulder pathology”, and that the “much restricted range of movement at both shoulders is a function of the pain elicited at the neck with such movement, and consequently I consider it assessable”.
The Senior Arbitrator referred to Dr Endrey-Walder’s discussion of an MRI dated 31 March 2014, in which he said abnormality at C5/6 was “chronic pathology”, but:
“…one is uncertain regarding the contribution of that pathology to her symptoms.
The overall impression is that of muscular pain secondary to straining on account of her voice problems.”
Reference was made to the appellant’s counsel having “properly conceded that I need not be concerned with the nature of the pathology and the matter of an assessment is a matter for an AMS”. She also referred to a history to Dr Novakovic which recorded “neck pain with extended vocal use”.
The Senior Arbitrator then referred to the report of Dr Wilcox dated 18 July 2015, on which the appellant relied. She referred to the doctor’s specialty appearing on his letterhead, “Consultant Surgeon, General Surgery/Trauma, Medico-Legal”. She noted Dr Wilcox did “not suggest any limitation on his ability to comment on muscle tension dysphonia”. She noted that the doctor had expressed doubt about the causal linkage between the respondent’s employment duties and the condition of muscle tension dysphonia. The doctor said there was “some possible doubt” on this issue.
The Senior Arbitrator said the doctor’s “essential opinion” appeared at page 11 of his report, which she quoted:
“…it is not justified on the basis of the medical evidence for her to claim that her physical disabilities (excluding her MTD) have been caused by overusing her voice at work in February/March 2011. Even the causation of the MTD might need to be further analysed by experts in that field, given the additional evidence found in the documentation and the published medical studies. They should be made aware of the psychosomatic nature of the spreading symptoms now involving the neck, upper trunk and upper limbs.”
The Senior Arbitrator then gave two reasons for her rejection of the opinion of Dr Wilcox. The first was his view, contrary to the appellant’s acceptance on the point, of the lack of a causal relationship between the respondent’s work duties and the condition of muscle tension dysphonia. The second was Dr Wilcox’s statement of the issue regarding the consequential conditions. He framed that question as whether these physical disabilities were “caused by overusing her voice at work in February–March 2011”. The Senior Arbitrator said the issue requiring her determination was rather “whether the conditions suffered in Ms Brennan’s neck and shoulders are consequential on the injury to her voice”.

The Senior Arbitrator said of the neck condition:
“I am satisfied that Ms Brennan has complained of pain in her neck and that there is an unbroken chain of causation from the injury to that condition. The injury to her neck is therefore a consequential condition.”
She continued, saying “the issue with respect to Ms Brennan’s shoulders caused me greater difficulty. However, her complaints with respect to pain in her shoulders have been consistent.” She referred to the opinion of Dr Endrey-Walder that it was not likely that there was shoulder pathology. She continued:
“However my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition.
I am satisfied that there is sufficient evidence to also refer the question of permanent impairment resulting from the condition in Ms Brennan’s shoulders to an Approved Medical Specialist.”

INTERLOCUTORY DECISION

It is convenient at this point to deal with the issue of whether the decision appealed against is interlocutory, and if it is, whether leave should be granted pursuant to s 352(3A) of the 1998 Act. That subsection provides:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant’s submissions did not assert that the decision was other than interlocutory. At 2.6 it was submitted that, if the appeal was found to be interlocutory in nature, leave should be granted on the basis this was necessary for the proper and effective administration of the dispute. The body parts to be assessed by an AMS depended on the determination of the issue going to the disputed consequential conditions. It was desirable for the appeal to be determined prior to any AMS referral or assessment.
The respondent submitted that the decision of the Senior Arbitrator was “interlocutory in nature”. The respondent referred to decisions in Arquero v DJ & T Denning Pty Ltd t/as Capital Coast Steel [2007] NSWWCCPD 126 and Moore v Greater Taree City Council [2009] NSWWCCPD 17 (Moore). In each of those matters, the decision at first instance involved referral, following findings on injury, to an AMS. In each, leave to appeal was refused on the basis that the decision appealed against was interlocutory. I note the relevant provisions going to interlocutory appeals were in a different form at the time of those decisions.
In Moore a number of Presidential decisions on the topic were reviewed, particularly that of Roche DP in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87. In that matter Roche DP referred to the judgment of Gibbs J in Licul v Corney [1976] HCA 6; 50 ALJR 439, where his Honour at [11] said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view – which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh – is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” (footnotes omitted)
Consistent with the above, the decision under appeal in the current matter is appropriately characterised as ‘interlocutory’. It does not finally determine the rights of the parties.
The appellant, in its Submissions in Reply, referred to Hunter New England Local Health Network v Turnbull[2014] NSWWCCPD 58 and Cooper v Family and Community Services (Ageing, Disability and Home Care) (wrongly sued as NSW Department of Family and Community Services (Ageing, Disability and Home Care))[2014] NSWWCCPD 8. The appellant submitted that the “effective administration of the dispute” is an issue relevant to the granting of leave. It is necessary, for this purpose, to determine “which conditions/body parts are to be referred to and assessed by the AMS”.
DP World Sydney Limited (formerly known as Container Terminals Australia Pty Limited) v Kelly[2011] NSWWCCPD 43 was an appeal involving orders for referral to an AMS. In a passage which was obiter dicta Roche DP said at [13]:
“As the appeal will, if it is successful, determine all issues between the parties and eliminate the need for an examination by an AMS, it is necessary for the proper and effective determination of the dispute that the Commission grants leave to appeal. If it were necessary, I would grant leave to appeal.”
A similar approach was adopted by Keating P in Campbelltown Tennis Club Ltd v Lee[2013] NSWWCCPD 50 (Lee), a matter where the decision appealed against involved orders referring the matter to an AMS. The President said at [22]:
“Contrary to Ms Lee’s submissions, the issues for determination on appeal involve a great deal more than a simple medical dispute. I accept that if leave is refused, the matter would then proceed to an AMS to determine the extent of any whole person impairment suffered by Ms Lee. At that point, final orders would be entered and the Club would be entitled to lodge a further appeal. I am satisfied that it is desirable for the proper and effective determination of the dispute that the issues for determination be resolved now because, as the Club submits, if the issues are resolved in its favour it will avoid an unnecessary referral to an Approved Medical Specialist, thus avoiding further costs and delay. I grant leave to appeal.”
The circumstances in the current appeal are similar to those in Lee. Similar considerations apply. I grant leave to appeal pursuant to s 352(3A).

SUBMISSIONS, DISCUSSION AND FINDINGS

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.”

Ground 1 – The Report of Dr Wilcox

The Appellant’s Submissions

The appellant submits there was error in the consideration and rejection of the opinion of Dr Wilcox. The appellant makes three specific arguments in support of this ground.
The appellant’s submissions referred to passages at pages 8 and 9 of the report dated 18 July 2015. The doctor referred to “spreading regional muscular pain” involving the neck, the upper third of the trunk and the upper arms down to the elbows. The doctor said the respondent’s complaints made “no sense in terms of physical pathology”. He said their failure to respond to “any form of paramedical treatment” was “unusual if there was an organic cause”. At page 11, Dr Wilcox said the respondent’s “widespread chronic pain has no basis in physical pathology and should not be treated as such”.
Firstly, the appellant referred to the passage in the Senior Arbitrator’s reasons where she explained why she rejected Dr Wilcox’s opinion. The doctor did not accept that the respondent suffered from muscle tension dysphonia and suggested the ear, nose and throat surgeons should reconsider their diagnoses. This, the Senior Arbitrator said, was inconsistent with the appellant’s acceptance of that condition.
The appellant submitted that a fair reading of the doctor’s report did not support the finding that Dr Wilcox did not accept the presence of muscle tension dysphonia. This is apparent from the diagnosis at page 11, which Dr Wilcox gave as “Primary muscle tension dysphonia (MTD) and chronic abnormal illness behaviour habit.” The appellant said there were other passages in the report which indicated acceptance of the presence of muscle tension dysphonia, notwithstanding the doctor’s query regarding causation. The Senior Arbitrator’s reading of Dr Wilcox’s opinion on this issue was factually incorrect.
Secondly, reference was made to the Senior Arbitrator’s observation that Dr Wilcox did “not suggest any limitation on his ability to comment on muscle tension dysphonia”. The appellant submitted that this observation involved factual error. The report at page 11 demonstrated that Dr Wilcox did recognise such a limitation. After expressing doubts about causation, Dr Wilcox said “Even the causation of the MTD might need to be further analysed by experts in that field.”
Thirdly, the appellant submitted that, even if Dr Wilcox was taken not to have accepted the presence of muscle tension dysphonia, his views on the presence of the consequential conditions were entitled to consideration on their merits, “irrespective of the correctness or otherwise of any opinion he may have expressed regarding MTD”. The doctor did not accept that the respondent’s pain had “any basis in physical pathology” or “any organic cause”. The appellant submitted that Dr Wilcox’s opinion was entitled to “significant weight”, given its consistency with the views of Dr Potter, the treating rheumatologist.

The Respondent’s Submissions

The respondent submitted that Dr Wilcox was not qualified to assess the issue of whether the respondent suffered from muscle tension dysphonia. The appellant admitted that the respondent suffered from that condition and it was “work related”. Dr Wilcox’s opinion that the respondent did not suffer from that condition tainted his opinion going to the consequential conditions.
Dr Wilcox’s opinion regarding the consequential conditions was that they “were psychological or of pain related aetiology”. Dr Wilcox was not qualified in psychiatry or psychology. Reference was made to South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) at [127], where McColl JA said that “evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’”.
The respondent submitted that the Senior Arbitrator was “well within her rights to reject the views of Dr Wilcox”, and she provided reasons for doing so. This involved no mistake of fact or law.
The respondent also referred to the decision of Fleming DP in Aluminium Louvres & Ceilings Pty Ltd v Zheng[2004] NSWWCCPD 26 as authority for the proposition that the Commission may have regard to evidence that would not be admissible in a court, but fairness must guide the weight to be given to it.

Discussion

The First Argument

The first argument went to whether, on a fair reading, Dr Wilcox did not accept the proposition (which was common ground) that the respondent suffered from muscle tension dysphonia which was work caused.
At page 8 of his report, after referring to the history going to the respondent’s voice loss, Dr Wilcox said:
“From this information, there does appear to be some possible doubt as to the substantial causative factor contributing to Ms Brennan’s voice problem. This becomes even more pertinent when this symptom was accompanied by lethargy as well as painful tension in the neck muscles.”
Dr Wilcox then went on to refer to the “current knowledge of primary muscle tension dysphonia”. He referred to a 2011 study (“Van Houtte et al”), and said that aetiological factors could be categorised into three subgroups. These were “(1) Psychological/Personality factors, (2) Vocal misuse and abuse and (3) Compensation for underlying disease”. He said:
“The fact that there was no hypertrophy of the vocal cords and no excessive vocal folds found on laryngoscopy, further suggests that her condition was not necessarily a product of misuse or overuse of the voice”.
Dr Wilcox also commented:
“No treatment has proved to be of any benefit to Ms Brennan. Even resting the voice for [a] prolonged period has not helped.” (emphasis added)
Dr Wilcox, at page 10 of the report, referred to other medical articles relevant to swallowing and laryngeal difficulties. He referred to a history from the respondent that she had “chronic fatigue and swallowing difficulties”, and “a feeling as if there is something in her throat which needs to come up”. He described these as “very typical psychosomatic symptoms”. He went on to say:
“Taking all the medical evidence into account it is reasonable to conclude that Ms Brennan’s MTD and her chronic gradually advancing pain and other symptoms have a large psychological emotional component. Just as she has a chronic postural habit, many of the other symptoms may be due to habitual tensing of muscle. This can also give rise to the frequent tension headache which she has had more or less from the beginning of her complaints.
Almost invariably, treatment directed towards physical pathology does not provide benefit to a patient when the real problem is psychosomatic with an abnormal chronic illness/pain behaviour habit.” (emphasis added)
Dr Wilcox then referred to “a considerable amount of stress as a single mother of three teenagers”, to which the respondent would “[w]ithout doubt” be exposed. He then made the statement quoted at [43] above.
Dr Wilcox at page 11 gave the diagnosis as “Primary muscle tension dysphonia (MTD) and chronic abnormal illness behaviour habit.” Immediately after this he set out his view of the prognosis, saying:
“As she has no change in respect of her MTD, in spite of a large amount of treatment, it would seem that she is unlikely to make any further progress. However, if it is recognised that there may be other factors than those of simple physical pathology, then other lines of treatment might produce some improvement. Her widespread chronic pain has no basis in physical pathology and should not be treated as such.” (emphasis added)
In the passage quoted at [69] above, Dr Wilcox suggested there was “some possible doubt” about the cause of this condition. This doubt then became “more pertinent” due to the presence of lethargy and neck symptoms.
In the passage quoted at [70] above, Dr Wilcox then referred to three possible aetiological subgroups (according to the study to which he referred) into which the condition might fall. The second of the subgroups (vocal misuse and abuse) was that into which the condition had been placed by the ear, nose and throat surgeons qualified on both sides. Dr Wilcox referred to aspects of the vocal presentation which he said suggested the condition was not necessarily a product of misuse and abuse. This, if accepted, would mean that the condition aetiologically would be in the ‘Psychological/personality’ subgroup or the ‘Compensation for underlying disease’ subgroup.
In the passage referred to at [72] Dr Wilcox referred to symptoms the respondent said she had related to her throat, and described these as “very typical psychosomatic symptoms”. Dr Wilcox, in the passage, referred to both the vocal symptoms, and the other symptoms, as having a “large psychological emotional component”.
The various passages quoted above are consistent with Dr Wilcox expressing a view that the respondent’s failure to respond to treatment, directed to her vocal problems, was consistent with such problems being psychosomatic. In the passage quoted at [72], he specifically referred to a “large psychological emotional component” to the voice problems, as well as the other symptoms. He referred to the lack of benefit from treatment for the muscle tension dysphonia, then he referred to the fact that treatment for physical pathology “does not provide benefit to a patient when the real problem is psychosomatic”. He drew support for this view also from the widespread symptoms developing in other parts of the respondent’s body (see the passages quoted at [43] and [72] above).
The history recorded by Dr Wilcox in his report contained no reference to a complaint by the respondent that she suffered from stress due to her role as a single mother of three teenagers. However, immediately after describing the real problem as “psychosomatic”, Dr Wilcox volunteered that the respondent would doubtlessly have been under “a considerable amount of stress” in this regard.
On a fair reading of the report, Dr Wilcox is seeking to mount an argument that the respondent’s symptomatology, including that associated with the muscle tension dysphonia, is essentially psychosomatic rather than physically based.
Dr Wilcox, whilst acknowledging the views reached by other specialists going to the presence of muscle tension dysphonia, did not himself accept the appropriateness of that diagnosis or the fact that it resulted from employment. This was the view taken by the Senior Arbitrator on this point, and I agree with it. At the very least, it was a view of Dr Wilcox’s opinion which was available on a fair reading of his report, the adoption of which does not constitute error.
I reject the first of the arguments raised by the appellant going to the first ground.

The Second Argument

The second argument goes to the Senior Arbitrator’s observation that Dr Wilcox did “not suggest any limitation on his ability to comment on muscle tension dysphonia”. This was submitted to involve factual error, given the doctor’s statement at page 11 of the report:
“Even the causation of the MTD might need to be further analysed by experts in that field, given the additional evidence found in the documentation and the published medical studies. They should be made aware of the psychosomatic nature of the spreading symptoms now involving the neck, upper trunk and upper limbs.”
It is clear that the Senior Arbitrator was well aware of the passage in Dr Wilcox’s report referring to further analysis by experts in the field; the passage is quoted in her oral reasons (T9.05). The appellant’s counsel conceded (appropriately) that Dr Wilcox did not “say that the voice aspects are not part of his expertise” (T25.25).
The passage quoted at [83] above is consistent with a potential preparedness by Dr Wilcox to defer to the views of ear, nose and throat specialists in relation to the condition of muscle tension dysphonia. It does not suggest any limitation on the doctor’s perception of his ability to comment on the condition. The Senior Arbitrator’s remark was accurate, notwithstanding Dr Wilcox’s reference to further analysis by experts.
It is apparent, from the material quoted above, that Dr Wilcox commented at some length on the condition of muscle tension dysphonia. He referred to three studies or journal articles relevant to it. He discussed the relevance of the respondent’s failure to benefit from treatment and whether that was indicative of a psychosomatic illness. He referred to certain of the respondent’s throat symptoms as very typical of psychosomatic symptoms. The implied suggestion in the passage quoted at [83] above is that, if made aware of the “additional evidence found in the documentation and the published medical studies”, and the “psychosomatic nature of the spreading symptoms”, the “experts in the field” might well alter their views, which had been supportive of the respondent.
In any event, the relevant passage from the Senior Arbitrator’s reasons is, taken literally, accurate, and in general terms consistent with the concession made by counsel, referred to at [84] above. It does not reveal factual error. The second of the arguments supporting the first ground of appeal is rejected.

The Third Argument

The third argument advanced in support of this ground is that, even if Dr Wilcox did not accept the presence of muscle tension dysphonia, his views on the alleged consequential conditions should have been considered on their merits. They were not.

The appellant argued that Dr Wilcox considered the respondent’s “symptoms were psychosomatic in nature, and were not reflective of any organic or physical pathology/condition”. The opinion was based on the doctor’s examination of the respondent, and “odd features” referred to at page 9 of his report. The appellant submitted that his views on the “absence of any organic condition in the upper extremities is in material respects consistent with that expressed by Dr Stephen Potter”, the treating rheumatologist.
The respondent effectively submitted that the report of Dr Wilcox constituted an “unqualified opinion”, to the extent that his opinion was directed to matters falling within the specialities of psychiatry and ear, nose and throat surgery.
This submission overstates the position. Dr Wilcox, according to his letterhead, is a general surgeon who practises in trauma and medicolegal matters. Whilst he is not a specialist in psychiatry or ear, nose and throat surgery, he is a qualified medical practitioner.
An assessment of the probative value of his views should have regard to the well-known passage from the judgment of Beazley JA in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 at [83]:
“In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.”
The first two arguments, put in support of the first ground of appeal, went to statements in the reasons dealing with whether Dr Wilcox accepted the (conceded) work caused condition of muscle tension dysphonia, and whether the doctor accepted any limitation on his ability to comment on that topic. The arbitral proceedings were conducted, consistent with the matters put in issue in the s 74 notices, on the basis that compensable injury consisting of muscle tension dysphonia was conceded. The Senior Arbitrator’s discussion of these matters in her reasons could only be relevant to a more general consideration of whether the evidence of Dr Wilcox was acceptable at all, on the issue of the disputed consequential conditions.
The Senior Arbitrator gave two specific reasons for rejecting the evidence of Dr Wilcox.
The first was that Dr Wilcox did not accept the condition of muscle tension dysphonia, notwithstanding that it was accepted as a compensable injury by the respondent.
This would not necessarily lead to the conclusion that the evidence of Dr Wilcox should be rejected on all issues. The evidence of a witness may be rejected on some issues and accepted on others: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at [30], Byers v Civil Aviation Safety Authority [2005] FCA 1751 at [33]. It follows that, notwithstanding the Senior Arbitrator’s rejection of Dr Wilcox’s opinion on the presence and cause of muscle tension dysphonia, his opinion arguably required consideration in respect of other issues to which it was relevant. This will be further discussed below.
The second reason given was that Dr Wilcox, in the question he posed for himself, misstated the medical issue. Dr Wilcox, at page 11 of his report, said:
“However, it is not justified on the basis of the medical evidence for her to claim that her physical disabilities (excluding her MTD) have been caused by overusing her voice at work in February/March 2011.”
Dr Wilcox was clearly aware of the previous acceptance by the appellant’s insurer of the claim for muscle tension dysphonia. At page 12 of his report, in response to a question about the presence of a “disease process”, he wrote:
“There is no evidence that she has any physical disease process other than for the MTD. There could be some doubt as to whether her employment was the main contributing factor for that condition but this has been accepted as being so over the past four years. The rest of her symptoms do not result from disease or injury and are psychosomatic.” (emphasis added)
The Senior Arbitrator, after referring to the passage of the report set out at [97] above, said:
“The issue is not as Dr Wilcox stated, whether the other disabilities have been caused by overusing her voice at work, in February–March 2011. The issue for me to determine is whether the conditions suffered in Ms Brennan’s neck and shoulders are consequential on the injury to her voice.” (at T9.18)
There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar). It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]–[46] described what is required:
“44.   The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45.    It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46.    The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited[1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
In Kumar, one of the qualified medical witnesses approached the issue of whether there was a consequential condition of the right shoulder, by asking whether the worker had suffered a “work related injury” to that shoulder and whether employment was a substantial contributing factor to the condition of that shoulder. Roche DP at [57] said of the evidence of that medical witness:
“Even assuming, as the respondent has urged, that Dr Wallace rejected the totality of the claim for ‘consequential loss’ in respect of the right shoulder, his failure to address the correct issue, and his focus on whether Mr Kumar suffered a work related injury to his right shoulder, means that his report is fundamentally flawed. For these reasons, the Arbitrator should have rejected Dr Wallace’s conclusion.”
Did Dr Wilcox’s report suffer from such a fundamental flaw? If so, the Senior Arbitrator was justified in rejecting the report (consistent with the approach in Kumar).
The respondent submitted that the opinion of Dr Wilcox going to the consequential conditions was “tainted” by his views on the presence and causation of muscle tension dysphonia.
The proceedings were conducted on the basis that the respondent suffered from the condition of muscle tension dysphonia, this being a compensable injury deemed to have occurred on 4 April 2011. What was in issue was whether there were consequential conditions involving the neck and shoulders, which resulted from the conceded injury of muscle tension dysphonia.
For reasons discussed above, I have (at [81]) formed the view that, on a fair reading of his report, Dr Wilcox did not accept the appropriateness of the diagnosis of muscle tension dysphonia or the fact that it resulted from employment. There are passages where the doctor pursues an argument to this effect.
There are passages of the report (see that quoted at [97] above for example) where Dr Wilcox excluded muscle tension dysphonia from his expressed views on causation. However, consistent with the discussion above going to the First Argument put in support of Ground 1, there are other passages where the doctor argues to the contrary.
The passages of Dr Wilcox’s opinion quoted at [97] and [98] above are consistent with his report involving the same flaw as that which affected the opinion of the medicolegal expert in Kumar. The issue before the Senior Arbitrator was not whether the respondent suffered injury to the neck and shoulders caused by overusing her voice in February/March 2011, under the ‘disease’ provisions or otherwise. It was not necessary, for the respondent to succeed on the consequential conditions, that she establish ‘injury’ to these parts within the meaning of s 4 of the 1987 Act.
The weight to be afforded to the opinion of Dr Wilcox was dependant, amongst other things, on its relevance to the issue between the parties. That issue was whether, accepting the conceded compensable injury of muscle tension dysphonia, the alleged consequential conditions resulted from that injury.
The views of Dr Wilcox were “fundamentally flawed”, to appropriate the language in Kumar. It follows that the Senior Arbitrator was correct to reject the opinion of Dr Wilcox.
I reject the third argument put in support of Ground 1. The first ground of appeal is rejected.

Ground 2 – Psychological, Mood or Pain Disorder and the Presence of Symptoms

The Appellant’s Submissions

The appellant referred to the pleading of the consequential conditions at Part 4 of the Application. The respondent had relevantly pleaded:
“Our client sustained muscular pain to her neck and shoulders secondary to straining on account of her voice problems.”
The appellant observed that this pleading did not involve a “claim for any pain disorder, psychological condition/disorder, or mood condition/disorder”.
The appellant referred to a finding of the Senior Arbitrator:
“I am satisfied that Ms Brennan has complained of pain in her neck and that there is an unbroken chain of causation from the injury to that condition. The injury to her neck is therefore a consequential condition.” (T9.25)
The appellant submitted that this passage indicated that “…pain was held by the Senior Arbitrator to be the consequential condition…”
The appellant then referred to the reasons dealing with the respondent’s shoulders, in which the Senior Arbitrator said “However, her complaints with respect to pain in her shoulders have been consistent.” (T10.1)
The appellant submitted that the Senior Arbitrator relied “on the presence of pain symptoms in the neck and shoulders as establishing a consequential condition”. It was submitted that this overlooked “the nature of the claim as pleaded”, and failed “to weigh the competing explanations and opinions as to the cause of those symptoms”.
The appellant referred to the reports of Dr Potter and Dr Wilcox. Dr Potter used phrases such as “chronic pain without structural cause” and “regional pain disorder”. Dr Wilcox thought there was “no organic or physical pathology”, the symptoms were “psychosomatic”.
The appellant conceded there did not have to be “a finding regarding the precise nature of the pathology”. However, it was necessary that there be a “condition”, not merely a “pain or somatic condition that manifested with wide spread symptoms”. After referring to Dr Potter’s views, the appellant submitted:
“The mere presence of symptoms in the neck and shoulders did not of itself establish the presence of a consequential condition, in light of the possibility that such symptoms were manifestations of a mood or other pain disorder as indicated by Drs Potter and Wilcox for which no compensation claim was made.”
The appellant submitted that the Senior Arbitrator failed to consider whether the “symptoms were the result of a non-pleaded pain, mood or psychological disorder”, and had found that this “was not a finding required to be made”. This was submitted to be an error of fact and law. The appellant submitted that, to the extent to which Dr Potter was relied on as supporting the respondent’s claim for the consequential conditions, this was in error.

The Respondent’s Submissions

The respondent reiterated the submission that Dr Wilcox was not qualified to assess the respondent’s psychological state or any pain disorder. The respondent reiterated the submission that Dr Wilcox did not accept the presence of muscle tension dysphonia.
The respondent submitted that neither Dr Endrey-Walder or Dr Hay (the respondent’s general practitioner) considered there was a mood disorder. Dr Potter saw the respondent only once, this in a treating capacity.
The Senior Arbitrator did not rely solely on the presence of pain. The records of treating doctors (for example Dr Hay and Dr Livesey) contained references to tightness and restriction of movement in the neck and shoulders, in addition to pain. The respondent did not accept that a psychological condition or pain disorder was the cause of her symptoms. There were physical complaints consistent with the presence of a ‘condition’.
It was submitted that the Senior Arbitrator’s finding was not of a mood disorder, but of “consequential condition in her neck and shoulders relating to her attempt to project her voice”.

Discussion

As was observed by Roche DP in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 at [36], “The issues in dispute are ultimately determined by the way the parties present their respective cases.”
The Application pleaded the consequential conditions as involving “muscular strain”. It made no pleading of psychological injury. This was consistent with the report of Dr Endrey-Walder dated 26 August 2014, served when the lump sum claim was made on 21 May 2015. He said “The overall impression is that of muscular pain secondary to straining on account of her voice problems.”
The appellant’s counsel, in addresses, referred to the relevant test as the “commonsense causal chain of connection”. The Senior Arbitrator, in her reasons, said that what she was required to determine was:
“…whether, taking a common sense consideration of the chain of causation, the conditions result from that injury [to the respondent’s voice]” (T2.20)
This is consistent with the application of the test of causation referred to by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463G to 464C (Kooragang), a test which has been frequently applied in the Commission in matters involving alleged consequential conditions. Such matters regularly involve a chain of causation in which a relevant work injury causes a chain of events, ultimately resulting in the consequential condition. It would not be considered necessary that each link in that chain of causation be specifically pleaded.
In Far West Area Health Service v Colin Robert Radford[2003] NSWWCCPD 10, Fleming DP dealt with pleadings in the statutory environment of the Commission. At [24] she said “In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties.” At [25], she continued:
“There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfil the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.”
The above is clearly subject to the Commission’s obligation to act “in accordance with the obligations of procedural fairness and natural justice” Edmonds at [91].
The appellant was in possession of Dr Wilcox’s report (addressed to the insurer) from shortly after it was dated. The insurer referred to it extensively in its s 74 notice dated 23 September 2015. This report clearly alerted the insurer to Dr Wilcox’s views about the psychosomatic nature of the presentation. A copy of Dr Potter’s report dated 30 August 2013 had been forwarded by the doctor to the appellant’s insurer, I would infer at about the same time the original was forwarded to Dr Livesey. A copy also was attached to the Application. The report contained Dr Potter’s views about chronic and regional pain.
The nature of the respondent’s medical case was known to the appellant from well prior to 24 November 2015, when the matter was listed for telephone conference. It does not appear, from the Commission’s file, that there was any suggestion at the telephone conference that the matter was other than ready, or that there were deficiencies in the pleadings. There is no suggestion that the appellant sought to adjourn the matter on the basis that the alleged causal chain was, in part, psychologically caused, and that this could not be met. The appellant had reasonable notice of the claim it had to meet, including the fact that some of the medical evidence dealt with at least some of the respondent’s symptoms as being non-organic.
It was open to the Senior Arbitrator to make findings in the respondent’s favour on the consequential conditions, notwithstanding that the causal chain may have involved some links of a psychological nature.
The appellant submitted that the Senior Arbitrator made findings of the consequential conditions in the neck and shoulders simply on the basis of pain (its submissions at [19] to [22]). The respondent submitted that this was not so.
The Senior Arbitrator referred (at T3.15) to the initial clinical note of Dr Livesey on 11 April 2011. That note read (in part) “Great difficulties with projection. Heavy + sore + tight neck ms. + hurts”. The note on 8 August 2011 included “Pain in neck on occasions”. The note on 23 July 2012 included “Tight voice + neck”. The note on 22 July 2013 recorded increasing “bilat neck/shoulder scap[?] pain”. Dr Livesey on 14 October 2013 recorded “Sev tightness neck, shoulders upper arms + back”.
Dr Livesey’s letter of referral to Dr Potter dated 9 August 2013 included:
“Thank you for seeing Monique with chronic muscle tension dysphonia unresponsive to management by many speech pathologists. She also has severe neck and shoulder muscle pain associated with talking. This means that she is unable to hold a normal social conversation let alone work as a primary school PE and classroom teacher.
Clinically she has laryngeal AP constriction of 80% on fibreoptic laryngoscopy.”
Dr Livesey’s “Preliminary Medical Attendant’s Statement” to “OnePath” dated 7 August 2013 described the respondent’s current symptoms as “Pain in throat/neck/shoulder with talking, voice husky, weak and impossible to project”. The document asked for “objective findings” to support the diagnosis. Dr Livesey inserted “Video fibreoptic laryngoscopic findings”.

Dr Livesey completed a Medical Attendant’s Statement on a claim for total and permanent disablement, dated 9 August 2013. He gave his reasons for why he did not think the respondent would resume work:
“She is unable to use her voice in a sustainable fashion due to vocal weakness and neck and shoulder pain. 12.2.13: unable to use her voice in a sustainable fashion and severe neck and shoulder pain associated with speech.” (emphasis in original)
The Senior Arbitrator also referred to the clinical notes of Dr Hay, which had entries for a sore throat and difficulties with speech from 23 March 2011. The note for 15 August 2011 included “seen Dr Livesey needs ultrasound neck no change”. The note for 15 September 2011 referred to a thyroid ultrasound. (The thyroid does not, on the medical evidence, appear to have been related to the respondent’s relevant complaints.) The note for 15 June 2012 (by Dr Mosse of the same practice) referred to a “mood disorder” as the reason for the visit. It said:
“It seems that several months ago she developed a vocal cord problem as a result of her work as a PE teacher at school. Under Workcover, she continues to see ENT specialists but, currently, there has been no significant improvement in her voice. This is, obviously, having a psychological affect [sic] on her. It has been suggested that she have some psychology input and I would support this.”
Dr Hay’s entry for 13 January 2013 said “History: has been booked in for surgery has ongoing neck issues ? related to throat needs opinion from Dr Livesey neck strain ? Voltaren” (emphasis in original). On 4 November 2013, Dr Hay noted “discussed voice and neck problems ongoing”.
The Senior Arbitrator specifically referred to the material from Dr Livesey (at T3.10 to 3.20) and from Dr Hay (at T4.1 to 4.10).
It is apparent that there were recorded complaints of neck symptoms from 11 April 2011 (to Dr Livesey). I take that reference to include tightness in the neck muscles. Various references thereafter include reference to tightness in the neck. Dr Livesey’s letter to Dr Potter specifically referred to the respondent’s neck and shoulder muscle pain being “associated with talking”. The Medical Attendant’s Statement dated 9 August 2013 similarly specifically associated neck and shoulder pain with speech.
That the Senior Arbitrator considered complaints of pain from time to time, involving the alleged consequential conditions, was perfectly proper in considering whether there was a causal link between the voice injury and those conditions. I do not accept that the Senior Arbitrator simply equated pain with the existence of the consequential conditions. The regular references to neck pain, in the treating material, are supportive of the alleged causal link, as are the references to muscle tightness. The appellant, in this regard, relies on the passage of the Senior Arbitrator’s reasons at T9.25. This should be read in context, including the references to the pattern of symptoms over time, as set out in the notes of Dr Hay and Dr Livesey, and the references to tightness.
The Senior Arbitrator did not determine the pathology. The appellant submitted that she was not required to. At T26.13, after submitting on the views of Dr Wilcox, the appellant’s counsel said:
“Now, I reiterate, you don’t have to determine pathology. You just have to determine there is a condition, and is that condition causally related to the work. In my submission, on the evidence, you will not be satisfied that that is the case.”
The Senior Arbitrator, in her reasons, specifically noted and accepted that part of the submission going to the determination of pathology (T2.15). The way she went about making her findings was consistent with the submission.
The submission made by the appellant on appeal suggests it was necessary that the Senior Arbitrator do more. The appellant’s submissions at [27] state that it was not necessary that she “make a finding regarding the precise nature of the pathology”, but it “was still necessary for there to be a condition in the neck and shoulders, and not merely a pain or somatic condition”. The appellant referred to the opinions of Dr Wilcox and Dr Potter, submitting that the neck and shoulder symptoms “were the result of a mood, pain or psychological condition”.
Dealing at the arbitration hearing with whether the symptoms were associated with a mood disorder, the appellant raised two difficulties with that possibility. The first was that a mood disorder (or other psychological condition) was not pleaded. The second was that there was an absence of medical evidence to connect the applicant’s voice injury to a mood disorder (however expressed), and from that to the muscle tension which was pleaded.
For reasons discussed above, I do not view the pleadings as an impediment to a finding that the alleged consequential conditions resulted from the voice injury.
The entry by Dr Mosse on 15 June 2012, quoted at [139] above, provided an opinion on the causal link between the voice injury, and subsequent mood disorder and psychological difficulties. Dr Potter accepted a potential causal link of that disorder to the neck and shoulder symptoms, saying chronic pain had a “high correlation with mood disorder”. Dr Potter, in his conclusion, said:
“This is musculoskeletal tension. It has different names, often called regional pain disorder. It is one of the functional somatic syndromes and requires careful management with reassurance and support, exercise therapy, pain management and usually maintaining normal activities.
This complaint may well last for some years.
At this stage she has done all reasonable options to maintain well being, that is trying to maintain normal schedules, maintaining sensible pain care, psychological support, exercise therapy, sleep correction and I am satisfied she understands the process after our discussion today.”
Dr Potter clearly accepted the existence of the condition which he diagnosed. He did not doubt the respondent’s veracity or the reality of the symptoms of which she complained. He did not express any specific view on the issue of causation.
The views of Dr Wilcox were rejected by the Senior Arbitrator for reasons referred to above. They would not, on this issue, have greatly added to those of Dr Potter in any event.
There is medical evidence that the respondent developed a mood disorder as a result of her vocal problems and the lack of improvement (Dr Mosse). There is evidence from Dr Potter that the condition of chronic pain which he diagnosed had a high correlation with mood disorder. Dr Potter also described the problem as “musculoskeletal tension”. The pleading in the Application was of “muscular pain to her neck and shoulders”.
Even relying on the views of Dr Potter, the causal linkage was established on the evidence. The respondent had more robust medical support than Dr Potter. Her case on causation was supported by Dr Hay (who saw her on multiple occasions throughout the progression of her condition) and Dr Endrey-Walder.
In considering how the Senior Arbitrator expressed herself on the issue, regard should be had to the decision of Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [45], where he said “it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error” (applying Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444 and Minister for Immigration and Multicultural Affairs v Liang [1996] HCA 6; 185 CLR 259).
The Senior Arbitrator made a finding on the existence of the consequential conditions which was available on the evidence and consistent with the submissions of the appellant at the arbitration hearing, going to the nature of the finding required. The second ground of appeal is rejected.

Ground 3 – Dr Endrey-Walder and Reconciliation of the Medical Opinions

The Appellant’s Submissions

The appellant submitted that, even if there was a consequential condition of the neck, the evidence did not support a similar finding in respect of the shoulders.
Dr Endrey-Walder, in his report dated 26 August 2014, recorded complaints of stiffness and soreness involving the shoulders, with marked restriction of movement. He said:
“I believe that she has [sic] most unlikely to have primary shoulder pathology, and the much restricted range of movement at both shoulders is a function of the pain elicited at the neck with such movement, and consequently I consider it assessable.”
The Senior Arbitrator, in considering the shoulder condition, said:
“Dr Endrey-Walder, in the passage I read earlier, did not consider it was likely that there was shoulder pathology. However my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition.” (T10.10)
The appellant submitted that the Senior Arbitrator’s finding, based on the above, effectively was that there was no pathology in the shoulders. It submitted that it was necessary that “a condition in the shoulders causing symptoms or restriction be found to exist before any finding of a consequential condition can be made.”
It was also submitted that there was error also in there being “no attempt to reconcile the competing views of Dr. Endrey-Walder and that of Dr. Potter and Dr. Wilcox”.

The Respondent’s Submissions

The respondent argued that there was no requirement for a finding of pathology in the shoulders causing symptoms. If there was a condition in the shoulders (as the Senior Arbitrator found), and it had been assessed (as it was by Dr Endrey-Walder) this was sufficient.
The respondent referred to Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni) on the difference between establishing ‘injury’ within the meaning of s 4 of the 1987 Act, and establishing a consequential condition.

Discussion

Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) contains a review of recent authorities going to the respective functions of the Commission and Approved Medical Specialists in the bifurcated system. Neither party has referred to Jaffarie and associated decisions. The submissions on the nature of the factual finding by the Senior Arbitrator are, before me, put on a narrower basis.
There is a clear distinction between a finding of ‘injury’ pursuant to s 4 of the 1987 Act, and a finding that a consequential condition results from an ‘injury’ (see Bouchmouni at [73] and [74]).
The proceedings in Kumar involved a claim for the cost of future surgery for the right shoulder, a condition which was alleged to result from an employment injury to the back. After referring to Kooragang, Roche DP at [49], framed the question at issue:
“Applying the above principles in the present case, the question for the Arbitrator was whether, as a result of his accepted back injury, Mr Kumar developed symptoms in his right shoulder for which it is reasonably necessary that he have the surgery recommended by Dr Ireland. While the Arbitrator referred to Kooragang, and applied the commonsense test of causation, he did so by asking what did commonsense say about ‘this issue of injury’. There was no issue that Mr Kumar injured his back on 19 March 2009. Nor was there any issue that he had not injured his right shoulder on that day.” (emphasis added)
The Deputy President said it was unnecessary to establish whether there was significant pathology in the shoulder (at [55]). He referred to the medical evidence, and at [59] said “the compelling conclusion is that Mr Kumar’s right shoulder symptoms in June 2010 resulted from his accepted back injury” (emphasis added). The relevant order made by the Deputy President, in substitution for that made by the arbitrator in that matter, was:
“1. That the symptoms in the applicant’s right shoulder have resulted from the injury to his back on 19 March 2009.” (emphasis added)
In Bouchmouni at [87] Roche DP said:
“Conversely, however, the same evidence provides strong support for the conclusion that there is an unbroken causal link between Mr Bouchmouni’s back condition and his accepted knee injury.” (emphasis added)
The first order made by the Deputy President, in substitution for that made at first instance, was:
“1. The applicant’s claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of whole person impairment as a result of the condition of his lumbar spine, which condition has resulted from the injury to his right knee on 13 March 2003.” (emphasis added)
The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.
Dr Endrey-Walder’s report described the respondent as previously “fit and well”. He described the onset of voice problems, and referred in some detail to records from treating practitioners. He quoted from Dr Potter’s report, to which he obviously had access. Dr Endrey-Walder recorded a history of pain at the front of the neck “from straining”, from “when the throat problem started”. The history was of pain in the back of the neck going to the shoulders by October 2011.
Dr Endrey-Walder recorded present symptoms involving stiffness and soreness on waking, going from the neck to the shoulders and down the arms. The respondent said she felt muscle pain and tightness of the left trapezius. She was never without pain, the intensity varied.
On examination, the respondent sat with her head slightly tilted to the right. There was “marked tension on the anterior border of the left trapezius which was quite exquisitely tender to touch”. Neck movements were markedly restricted. There was “very marked restriction in the range of movement at the shoulder girdles”. Dr Endrey-Walder said “movement at these joints impacted on her neck and it was pain that prevented her from increasing the range of motion”.
Dr Endrey-Walder’s opinion said:
“When she started to strain in trying to project her voice she had clearly developed a degree of muscle tension and muscle pain, the pain itself further impacting on the range of movement available at the neck and subsequently at the shoulder girdles.
I believe that she has [sic] most unlikely to have primary shoulder pathology, and the much restricted range of movement at both shoulders is a function of the pain elicited at the neck with such movement, and consequently I consider it assessable.”
The doctor also referred to the pathology at C5/6 described in the MRI scan report dated 31 March 2014. He said “…one is uncertain regarding the contribution of that pathology to her symptoms”. He said “The overall impression is that of muscular pain secondary to straining on account of her voice problems.” He suggested treatment, including physiotherapy directed to the neck and shoulder girdles.
Dr Endrey-Walder’s report is consistent with the existence of consequential conditions affecting the neck and shoulders. Neck movements were markedly restricted. There was muscle pain and tightness of the left trapezius, which was exquisitely tender. There was marked restriction of movement at the shoulder girdles. He regarded these as “assessable” and provided assessments of whole person impairment in respect of the cervical spine, and the right and left upper extremities.
The appellant submitted that both Dr Potter and Dr Wilcox found a normal physical examination, with no evidence of the restrictions found by Dr Endrey-Walder.
Dr Potter recorded “The clinical examination is normal but for the discomfort so shown.” He also recorded:
“In this circumstance, as is often the case, the musculoskeletal examination is normal but for pain and tenderness and the territory involves broad areas of the head, neck, upper thoracic spine, down to the braline, across the shoulders, chest wall, not below the elbows, partly lumbosacral and not in the legs.”
The opinion of Dr Wilcox was rejected by the Senior Arbitrator. His findings on examination still may be relevant. On examination “she had a postural habit of holding her head to the right”. She held her shoulders in a mildly elevated position. “The paraspinal and anterior neck muscles were held with considerable tightness”. The doctor said they became more relaxed after deep breathing. There was tenderness over the occiput. Forward flexion of the neck was limited. There was discomfort at extremes of rotation after holding the position for one to two seconds. Dr Wilcox thought there were “inconsistencies” on active movement of the cervical spine and shoulders.
Thus, Dr Potter’s examination was normal save for widespread complaints of pain and tenderness. Dr Wilcox’s was normal save for unusual posture, tightness of the paraspinal and anterior neck muscles, limited forward flexion at the neck and discomfort at extremes of rotation.
The Senior Arbitrator said that Dr Endrey-Walder “supports a connection between the injury and consequential connections in her neck and shoulders”. She did not specifically say that she accepted the opinion of Dr Endrey-Walder. The findings made by her in her Statement of Reasons are consistent with her having done so. It was open to her to do so. She had rejected the opinion of Dr Wilcox. Additionally, for reasons set out at [149] to [153] above, the opinion of Dr Potter, read with that of Dr Mosse, would have been sufficient to establish the necessary causal linkage. The respondent’s case was also supported by her general practitioner, Dr Hay, who in his report dated 20 July 2015, said:
“…she has developed chronic neck and shoulder pain which, in my opinion, is directly related to her attempt to provide a reasonable quality to her voice.”
The views of Dr Hay were not mentioned in the Senior Arbitrator’s reasons or in the submissions on this appeal. I mention them for the sake of completeness.
The third ground of appeal is rejected.

CONCLUSION

The Appeal has failed on each of the three grounds

DECISION

The Senior Arbitrator’s determination of 24 December 2015 is confirmed.

Michael Snell
Deputy President

15 April 2016