Trustees of the Roman Catholic Church for the Diocese of Parramatta v O'Brien - [2012] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Trustees of the Roman Catholic Church for the Diocese of Parramatta v O’Brien [2012] NSWWCCPD 68
APPELLANT:		Trustees of the Roman Catholic Church for the Diocese of Parramatta
RESPONDENT:		Kathleen Maryann O’Brien
INSURER:		Catholic Church Insurances Limited
FILE NUMBER:		A1-8091/11
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		3 August 2012
DATE OF APPEAL DECISION:		15 November 2012
SUBJECT MATTER OF DECISION:		Assessment of evidence; application of the principles in Onesteel Reinforcing Pty Ltd v Sutton[2012] NSWCA 282
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Astridge and Murray
Respondent:	Brydens Law Office LP
ORDERS MADE ON APPEAL:		1. Paragraph one of the Arbitrator’s determination of 3 August 2012 is revoked and the following orders are made in its place: “The degree of permanent impairment of the neck, the degree of permanent impairment of the back, the degree of permanent loss of efficient use of the left arm at or above the elbow (including the shoulder and radiating pain) in respect of injuries sustained on 28 October 1999, are remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment under the Table of Disabilities.” 2. Paragraphs two, three and four of the Arbitrator’s determination of 3 August 2012 are confirmed.

BACKGROUND

Mrs O’Brien was employed by the appellant, Trustees of the Roman Catholic Church for the Diocese of Parramatta (the Trustees) as a secretary in the office of the Good Shepherd School at Plumpton.
On 28 October 1999, she was injured when a chair she was attempting to sit on broke, causing her to sustain various injuries.
The Trustees accepted that Mrs O’Brien injured her back and neck and accepted liability in respect of those injuries.
On 7 July 2011, Mrs O’Brien’s solicitors, Brydens, made a demand on her behalf for lump sum compensation as follows:
(a)     section 66 - $6,000 in respect of seven per cent permanent loss of efficient use of the left arm at or above the elbow;
(b)     section 66 - $18,750 in respect of 25 per cent permanent loss of efficient use of the left leg at or above the knee;
(c)     section 66 - $12,000 in respect of 20 per cent permanent impairment of the back;
(d)     section 66 - $4,000 in respect of 10 per cent permanent impairment of the neck;
(e)     section 66 - $1,100 in respect of five per cent severe bodily disfigurement, and
(f)      section 67 - $40,000 in respect of 80 per cent of a most extreme case.
On 6 September 2011, Catholic Church Insurances issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Liability for the claim was denied for the following reasons:
(a)     inconsistency of accounts as to how the alleged injury occurred;
(b)     a denial of injury in respect of the left arm and left leg;
(c) the employment was not a substantial contributing factor to the alleged injury pursuant to s 9A of the Workers Compensation Act 1987 (the 1987 Act);
(d)     Dr Khan’s evidence was rejected as his assessments were not “in accordance with the Act and Guides”, and
(e)     medical and related treatment claimed was not considered to be reasonably necessary as a result of the compensable injury pursuant to s 60 of the 1987 Act.
On 14 September 2011, Mrs O’Brien lodged an Application to Resolve a Dispute with the Commission. She claimed the compensation referred to in her solicitor’s letter of demand of 7 July 2011 plus treatment, care and related expenses. On 6 October 2011, the Trustees filed a Reply to the Application to Resolve a Dispute. It declined liability for the reasons stated in the s 74 notice issued on 6 September 2011.
The matter came before a Commission Arbitrator for an arbitration hearing on 31 January 2012 and 24 February 2012. There was no oral evidence. Both parties were legally represented and made submissions.
The dispute before the Arbitrator was whether Mrs O’Brien injured her left arm and left leg in the incident on 28 October 1999. The Trustees accepted liability for lump sum compensation, subject to an assessment by an Approved Medical Specialist, in respect of the claimed impairments to the neck and back.
In a reserved decision dated 3 August 2012, the Arbitrator issued a Certificate of Determination and a Statement of Reasons (Reasons). She found in favour of the worker in respect of the disputed impairments to the left arm and left leg.
The Commission issued a Certificate of Determination on 3 August 2012 in the following terms:
“The Commission determines:

Finding
1. On 28 October 1999 the applicant suffered injury to her left arm/shoulder and her left leg/knee arising out of or in the course of her employment with the respondent for the purposes of section 4 of the Workers Compensation Act 1987. The applicant’s employment with the respondent was a substantial contributing factor to that injury for the purposes of section 9A of the Workers Compensation Act 1987.
Orders
1.       The degree of permanent impairment of the neck, the degree of permanent impairment of the back, the degree of permanent loss of efficient use of the left arm at or above the elbow (including the shoulder and radiating pain) and the degree of permanent loss of efficient use of the left leg at or above the knee (including the knee and radiating pain) are to be referred by the Registrar to an Approved Medical Specialist for assessment under the Table of Disabilities with a date of injury of 28 October 1999.
2.       The documents to be sent to the Approved Medical Specialist are the documents admitted into these proceedings. A copy of this Statement of Reasons is also to be sent to the Approved Medical Specialist.
3.     The respondent is to pay the applicant’s reasonably necessary section 60 expenses resulting from injuries as found, on production of accounts and/or receipts.
4.     The respondent is to pay the applicant’s costs as agreed or assessed.

Certification
1. In light of the medical, legal and factual complexities in this case and for the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010 I certify this matter as complex with 25 per cent increase in the costs otherwise available to both parties.

A statement is attached to this determination setting out the Commission’s reasons for the determination.”

The Trustees accept the Arbitrator’s findings with respect to the injuries to the left arm, but appeal the decision in so far as it concerns the findings with respect to the injuries to the left leg.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed to be determined on the papers, without the need for a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the parties’ submissions 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.

PRELIMINARY MATTERS

It is accepted that the threshold requirements as to time and the compensation claimed satisfy the requirements of ss 352(3) and 352(4) of the 1998 Act.

THE EVIDENCE

The Arbitrator’s Reasons includes a very careful analysis of the expert and lay evidence in relation to the disputed injuries to the worker’s left arm and left leg. For convenience the evidence to which I will refer will be limited to the evidence relating the alleged injury to the left knee which is the only injury the subject of this appeal.
Mrs O’Brien provided a signed statement of evidence dated 22 June 2010. Her statement refers to events that occurred on 28 October 1999, more than 10 years earlier. Mrs O’Brien stated she was involved in a motor vehicle accident in the 1970s. She suffered a fractured patella of the left leg and was in a plaster from hip to ankle for a period of time. She commenced an action for damages and recovered the sum of approximately $4,000.
She said that on 28 October 1999 she was performing her secretarial duties. The chair she was using was an office chair that had been purchased some three years earlier. Mrs O’Brien described the circumstances of her injuries as follows:
“7.     I returned to my chair and sat down. The back of the chair hit my back with a bit of force and at the same time, the bottom of the chair collapsed.
8.      I tried to break my fall by using my elbows and my left leg went out from under me.
9.      I fell on the base of my spine, hitting my head and neck, my left arm and shoulder. I twisted around my left side and my left leg twisted under me. The principal came over to me, and he tried to set the chair up and get me to sit on it but, at first he could not understand what was wrong with the chair, then he realised it was broken in a couple of places, i.e. the back and the seat of the chair were broken…”
Mrs O’Brien said that she attended her general practitioner, Dr Martino, on the day of the incident. She described injuries to her left hand, and her left arm was swollen. She had pain in her neck and in the base of her skull and sharp pain in the upper arm. Mrs O’Brien provided details as to the manner in which those injuries interfered with her work and domestic activities. Describing her low back pain she said that it was aggravated by bending, lifting, prolonged standing and sitting and walking, and then added:
“26. The pain spreads into my left leg and sometimes the right but to a lesser degree.
27. I have to use a walking stick sometimes to get around.”
Mrs O’Brien added at [47] of her statement:
“After the fall from the chair I was and still am in constant pain, especially my neck, arm, my back, and legs – the pain is more pronounced on my left side as this was the side that twisted under me when I fell.”
Mrs O’Brien completed and signed an employee’s compensation claim form on 28 October 1999. She described the incident in these terms:
“Chair collapsed. Typing – stopped to assist principal – went to resume typing when chair collapsed.”
The entry on the claim form concerning the body parts affected stated, “neck, left arm, back, left side, l. breast, l. hip”.
Mrs O’Brien saw Dr Martino on 28 October 1999. He prepared a report dated 2 January 2002. Dr Martino obtained a history that Mrs O’Brien attempted to sit down on her chair and the chair collapsed causing her to fall to the ground. He recorded the history that she tried to break the fall with her arms and fell, hitting the back of her head on the desk and the chair hitting her low back. Dr Martino said that there was immediate pain in her neck and low back. In terms of the clinical examination referable to the lower limbs, the doctor noted straight leg raise was 60 per cent bilaterally and there were no abnormal neurological signs in the lower limbs. He concluded that Mrs O’Brien had sustained a cervical and lumbosacral spine strain as a result of the injury and went on to describe her symptoms and treatment.
On 13 September 1999, Mrs O’Brien saw Dr Yap, a general practitioner. His clinical notes are in evidence. The entry relating to that consultation reported a finding of left sciatica following gardening.
Dr Martino referred Mrs O’Brien to Dr Griffith. In the referral to Dr Griffith, Dr Martino noted the presenting symptoms were painful and stiff neck radiating to left arm. Dr Griffith first saw Mrs O’Brien on 19 April 2000. He recorded that Mrs O’Brien fell at work in October 1999 when her seat broke. He took the following history:
“She tried to prevent falling to the floor by placing her arms on top of the desk. She stated her lower limbs gave way. She attempted to struggle up. The chair was broken. She bent and leaning over the desk experiencing posterior cervical neck pain…”
Dr Griffith recorded her complaints of cervical pain and pain in the left arm and hand. He recorded a history of injury to the left patella 25 years earlier and a previous neck injury 10 years earlier. He recorded there was no lower limb weakness but noted ongoing complaints of back pain and numbness over the right anterior thigh.
Dr Griffith concluded that Mrs O’Brien had referred left upper limb pain and paresthesiae or possibly a cervical disc pressing or irritating the C7 or C8 nerve roots. “In addition she has a right bilateral cutaneous nerve of thigh lesion.”
Dr Griffith referred Mrs O’Brien to Dr Mark Sheridan, a neurosurgeon. Dr Sheridan first saw Mrs O’Brien on 5 July 2000. He recorded the history that she was injured when a chair collapsed. He noted that she immediately had neck pain and left arm pain and subsequently developed lower back pain and right arm pain. He concluded that she had sustained injuries to her cervical spine and recommended against surgery. Dr Sheridan referred Mrs O’Brien to Dr Daryl Salmon for pain management.
Dr Salmon prepared a report dated 21 July 2000 addressed to Dr Sheridan. He reported that the typing chair on which Mrs O’Brien sat had broken beneath her. He said “as she fell she tried to break the fall with her left arm. Eventually she was repositioned for rest in another chair and experienced pain in the left shoulder and arm radiating to the neck. She complained of moderate low back pain and neck pain.” His report went on to detail Mrs O’Brien’s current symptoms which focussed on the cervical symptoms radiating to the shoulders, the back of the head to between the shoulder blades, the arm and forearm.
On 30 April 2001, Mrs O’Brien saw Dr Lombardo, a general practitioner. His clinical notes reveal that Mrs O’Brien said that she fell off a chair which had broken under her on 28 October 1999. The notes state, “MRI → bulging discs had epidural c/s. C/o neck and back”. The rest of the entry deals with his clinical findings and recommended treatment.
On 28 May 2001, Mrs O’Brien was referred to Rehab One Physiotherapy Pty Ltd and attended there on 28 May 2001. She reported injuries to her cervical and thoracic spine on 28 October 1999, after falling off a chair at work.
On 19 September 2001, Simone Edwards, a physiotherapist from Rehab One Physiotherapy, prepared a report following a course of physiotherapy. Mrs O’Brien reported symptoms in her cervical, thoracic and lumbar spine, constant pressure and swelling in the left arm and pins and needles in the left hand.
Mrs O’Brien was seen by Dr L J Day on 17 December 2001, after experiencing mid/lower retrosternal pain. Dr Day noted a history that Mrs O’Brien had an accident two years earlier suffering injuries to her cervical and lumbar spine. He reported chronic pain as a consequence and noted treatment by Dr Daryl Salmon for chronic pain syndrome.
On 29 January 2003, Mrs O’Brien was seen by Dr Matthew Giblin, orthopaedic surgeon, at the request of Dr Lombardo. He stated that she was a 57 year old lady who fell off a chair in 1999 and since that time had had neck and low back discomfort. He noted neck pain radiating to the upper left limb and lower back pain into the left lower limb on an intermittent basis. When she did get pain in the lower left limb, it could last for days at a
time and may occur once a fortnight. He noted “presently she has more neck pain than low back pain”. He recommended against surgery in respect of the cervical symptoms and recommended an MRI to clarify “the situation of her lumbar spine”.
Between November 1999 and February 2005, Mrs O’Brien regularly attended her general practitioner. On some occasions during that period she visited Dr Yap several times a month. An examination of those notes revealed no entries with respect to injuries or complaints concerning the left knee.
On 11 November 2003, Mrs O’Brien consulted Dr Philip Cheung, general practitioner. She said that she had a fall at work four years earlier and had injured her cervical and mid and lower spine. He noted MRI scans were fairly normal. He noted that she had recently moved from Sydney (to Victoria).
On 3 June 2005, Mrs O’Brien saw Dr Max Ellis, a medico-legal consultant, who examined her at the request of her solicitors. The history recorded by Dr Ellis is as follows:
“She was injured at work on 28 October 1999 employed by the Catholic Education Office in Parramatta. She was working at the Good Shepherd School at Plumpton in the office. She commenced with the school in 1984, as she sat down on the typist’s chair it broke and she fell onto the base of her spine hitting her head and neck, left arm and shoulder. She experienced low back pain and thoracic spinal pain which did not recover.”
Mrs O’Brien complained to Dr Ellis of occipital headaches, neck pain spreading to her shoulders, numbness and paresthesiae in the fingers of the left hand. She complained of right shoulder pain. Her neck predominates over the back, but low back pain persists, aggravated by various activities. She said that pain spreads to the left leg and calf, the right is similarly but less affected. There is no numbness or paresthesiae in the lower limbs.
Dr Ellis concluded that as a result of the fall at work on 28 October 1999, Mrs O’Brien suffered musculoligamentous contusion, aggravation of degenerative changes in her neck and, to a lesser extent, her back. Consequent upon the back injury, there are secondary effects in both lower limbs, referred pain particularly affecting the left side.
On 1 November 2007, Mrs O’Brien attended Dr Y Wong. He noted “L knee trip and fell, 3/52”, which I infer means a reference to an incident that happened three weeks earlier. On 5 November, Dr Wong ordered an x-ray of the left knee recording “knee (l) 3/52 ago had a fall and hurt left knee, still sore, any OA, loose body etc”.
On 7 November 2007, Dr Brian Dubowitz reported on an x-ray of Mrs O’Brien’s left knee as follows:
“Osteoarthritis bilaterally more significant on the right side where there is narrowing of the medial joint compartment.
On the left side there is a fracture of the inferior pole of the patella with some displacement. There is also significant lateral tracking of patella with marked degenerative narrowing of the lateral patellofemoral joint. I cannot be absolutely certain that this is a definite recent fracture of the inferior patella. It could represent a prior fracture or even could represent an accessory ossicle. Correlate with clinical findings. There is evidence of joint effusion.”
On 27 November 2007 Mrs O’Brien was referred by Dr Wong to an orthopaedic surgeon, Mr Norsworthy, at Box Hill Hospital. The reason for the referral is recorded as follows:
“She had a fall 9/52 ago, the left knee is still in a lot of pain. The pain keeps her awake at night. Please manage.”
On the same day, Mrs O’Brien presented at the outpatient department at Box Hill Hospital. She reported pain in the left knee for the preceding two months.
Also on 27 November 2007, Dr Norsworthy prepared a report to Dr Wong. He said:
“Thankyou very much indeed for asking us to see Mrs O’Brien regarding her painful left knee. I think she is suffering mainly from quite severe patellofemoral joint arthritis. There is early degenerative change affecting the remaining of her knee but no mechanical symptoms.
I doubt that a recent overseas trip caused any particular injury to the knee, but rather made her degenerative knee become symptomatic.”

Dr Norsworthy recommended a total left knee replacement and placed Mrs O’Brien on a waiting list.
On 21 April 2008, Mrs O’Brien was seen by Dr Michael Long, a general surgeon, for a medico-legal consultation at the request of her solicitors. His report included the following details of injury:
“On 28 October 1998 [sic] the chair on which she was sitting precipitously broke and she fell heavily to the ground with her left leg doubled beneath her and her arms outstretched, trying to support herself. She believes she also struck her head. The school principal helped her to her feet; and with her shock at the time she was unaware of any great discomfort but over the following hours she developed severe pain and stiffness in her posterior neck and a burning pain in the left arm. She also had pain in her lower back which radiated around her left hip and into the left thigh anteriorly and then inferiorly to her ankle.”
Dr Long noted various presenting problems relating to her neck and arm but with respect to the left leg he said, “she continued to have low back pain and pain in the left leg as well as slight discomfort in the right leg”.
Dr Long noted Mrs O’Brien’s involvement in a motor vehicle accident in the early 1990s and a motor vehicle accident at the age of 28, in which she sustained a fracture of the left patella which was managed in a plaster cylinder for six weeks. Dr Long recorded details of the worker’s medical and social history, his findings on examination and his review of the radiological investigations. He concluded that Mrs O’Brien suffered:
“Degenerative arthritis of her knees, particularly the left knee, which had previously sustained a fracture of the patella.
Aggravation of arthritis of the left knee during the fall of 28 October 1999.”
Mrs O’Brien was examined by Dr Paul Hitchen, orthopaedic surgeon, at the request of the solicitor for the respondent on 14 April 2009. After recording the history of the previous traumas in which Mrs O’Brien had been involved, he noted that on 28 October 1999 she suffered multiple musculoskeletal injuries. He said:
“On that occasion she went to sit on an office chair. Apparently the seat on the chair came off its pedestal. She fell downwards and onto her buttocks and towards her left side. She complained of neck, low back, left arm and left leg pain.”
Mrs O’Brien attended for the pre-admission screening at Box Hill Hospital on 27 January 2010. The pre‑admission notes record a brief history which includes a reference to the fracture of the left patella at the age of 28 and “fall in 1999 aggravated (L) knee”. The current history noted “OA (L) knee several years”.
On 22 June 2011, Mrs O’Brien was assessed by Dr M Khan, orthopaedic surgeon, at the request of her solicitors. In a report of that date, Dr Khan took the following history of injury:
“After attending to a photocopier/fax machine, Mrs O’Brien returned to her office and sat down on her chair. As she did so it apparently broke, the back of the chair struck her in the back with some force, and as she collapsed she put her elbows out to break her fall. Her left leg went from underneath her and she landed hitting the base of her spine hard on the ground. She also struck her head and neck and as she tried to pull herself with her left harm she injured the left arm and had a pulling feeling on the shoulder. She as considerably shocked.”
After recording Mrs O’Brien’s symptoms, previous history, medical examination and investigations, he provided the following opinion with respect to the left knee:
“Her left knee has had pre existing quiescent degenerative changes which was sequelae to her episode of fracture of the patella in 1973. She appeared to have recovered to a large extent from it but as a result of 28 October 1999 as she fell on her flexed left knee which had twisted during the fall the latter episode was the main factor causing her significant symptoms of degenerative arthritis in her left knee. This has led to progression of the disease associated with pain, suffering and stiffness, and eventually she has required total knee replacement surgery as described above which was carried out at Box Hill hospital on 20 May 2010.”

THE ARBITRATOR’S REASONS

The Arbitrator accepted the worker’s evidence as reliable, although it was not contemporaneous with the incident and came many years after it. She concluded that the worker’s statement was generally consistent with the injury report form in November 1999, and concluded that she had no reason not to accept her account of the incident.
The Arbitrator accepted, however, that there was no contemporaneous evidence of any complaint by Mrs O’Brien regarding an injury to her left knee. Dr Martino did not obtain any history of injury to the left knee or the worker’s left leg doubling up or twisting underneath her in the fall when he saw Mrs O’Brien on the day of the incident. The Arbitrator concluded that the history taken by him was extremely brief and should not be relied upon as a complete record of what the applicant told him. She said that it was apparent that the applicant was distressed and in pain immediately following the incident, and may not have given a full account to Dr Martino.
The Arbitrator accepted that no complaint of left knee injury was made to Dr Lombardo when Mrs O’Brien first saw him on 30 April 2001.
The Arbitrator also accepted that although Mrs O’Brien was treated by Dr Wong from November 2003, it was not until November 2007 that he recorded any complaints with respect to the left knee. At that point he recorded a tripping incident three weeks earlier. The Arbitrator found the delay in making a complaint of a knee injury “difficult to reconcile” with the worker’s claim.
At [49] the Arbitrator concluded that the history obtained by Dr Griffith of both legs giving way in the incident, allowed for the possibility of a finding of “problems” with the left leg.
The Arbitrator found that Dr Sheridan’s evidence lent no support for a claim of specific injury to the knee in the subject incident.
The Arbitrator described Dr Salmon’s reports as “essentially contemporaneous”. She found that Dr Salmon did not refer in any of his reports to a specific injury to the left knee but only radiating pain to both legs from the low back. This, the Arbitrator said (at [50]), “therefore offers only limited support to the applicant’s claims in respect of the left leg”.
The Arbitrator noted at [51] that Dr Matthew Giblin’s evidence did not lend any support to the applicant’s claim of a frank injury to the left knee.
Similarly, the Arbitrator found that Dr Ellis took no history of any specific injury to the left leg or knee.
The Arbitrator accepted that Dr Hitchen concluded that the original injury to the left knee and the fracture of the patella would have ultimately traumatised the patellofemoral articulation and in the longer term had led to osteoarthritis of the knee joint. Although Dr Hitchen concluded that the worker suffered a number of constitutional orthopaedic conditions including the left knee, none of which was caused, accelerated or permanently aggravated by the fall at work, and although he expressed the view that the worker would have developed symptoms regardless of the fall of work, the Arbitrator said at [53] that that was not to the point provided she was satisfied that there was a relevant aggravation or exacerbation of the underlying condition.
At [55], the Arbitrator stated that she placed no weight on Dr Hitchen’s expert opinion. She concluded that he had not sufficiently explained why the incident at work did not exacerbate or aggravate the pre-existing condition of the left knee. She accepted that there was radiological evidence of a degenerative process in the left knee well before the incident in 1999, but noted that the worker was essentially asymptomatic before the incident. In her view, Dr Hitchen failed to address those relevant matters in reaching his conclusion that the left knee condition is entirely constitutional and not related to the work injury in any way.
The Arbitrator accepted Dr Khan’s evidence, (albeit in 2011) that he recorded a history that the worker’s left leg went from beneath her in the incident in 1999. He described the worker’s left knee being flexed and twisted during the fall. The Arbitrator rejected a submission that Dr Khan’s report was inconsistent, describing any inconsistencies as both minor and immaterial. The Arbitrator concluded that his evidence was of great assistance in understanding precisely what occurred from a factual and medical perspective.
The Arbitrator found that Dr Long’s notation that the worker’s leg doubled beneath her was sufficient to be satisfied that his history was essentially correct. The Arbitrator found Dr Long’s evidence very persuasive. She accepted his evidence that the worker was asymptomatic, despite some earlier pathology, before the incident and that there was a significant aggravation of the left knee problem, due to the events of 28 October 1999, leading to the worker’s incapacity.
The Arbitrator rejected a submission that the evidence of Drs Long and Khan was based on an incorrect history of what occurred in the incident. She was persuaded by the diagnosis, explanations and conclusions reached by Dr Long and Dr Khan, that the worker suffered injury to the left leg and knee as claimed, in addition to the radiating pain to the left leg. She was also satisfied that the incident at work on 28 October 1999 aggravated pre-existing arthritis in the left knee.
Although there was a significant degree of inconsistency in the evidence as to what had occurred on the day of the incident, based on all the evidence, the Arbitrator’s ultimate conclusion, was that on 28 October 1999, Mrs O’Brien suffered an injury to her left leg/knee arising out of or in the course of her employment with the respondent for the purposes of s 4 of the 1987 Act. She also found that the worker’s employment with the respondent was a substantial contributing factor for the purposes of s 9A of the 1987 Act.

ISSUES ON APPEAL

The employer alleges that the Arbitrator erred:
(a)     in concluding that the report of Dr Michael Long provided evidence probative of the proposition that Mrs O’Brien sustained an injury to her left knee on 28 October 1999;
(b)     in concluding that there was support from Dr Khan for the proposition that Mrs O’Brien suffered an injury to her left knee on 28 October 1999;
(c)     by relying on expert opinion which was at odds with the worker’s consistent account of the fall and its immediate aftermath, namely that she did not fall onto a flexed left knee and symptoms following the fall did not include any left knee symptoms;
(d) by failing to apply the terms of Rule 70 [sic, Rule 15.2] of the Workers Compensation Commission Rules 2011 and the principles enunciated in South Western Area Health Service v Edmonds [2007] NSWCA 16 at [127];
(e)     by discounting at [56] and [59] the contemporaneous evidence of Dr Martino because of the absence of his clinical notes and drawing the inference his evidence was unreliable for that reason, and
(f)      by concluding that the report of Dr Griffith supported the proposition that the respondent worker had fallen onto a flexed left knee injuring that knee, whereas, in fact, Dr Griffith’s evidence was to the contrary.

APPELLANT’S SUBMISSIONS

Unfortunately in this appeal, as in many other appeals in the Commission, the submissions do not refer to the specific grounds of appeal. Nevertheless, doing the best I can, the appellant’s submissions may be summarised as follows.
Where the trial Judge has made findings of fact that are inconsistent with facts incontrovertibly established by the evidence, a finding may be set aside on appeal: Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy).
Dr Martino’s history, taken on the day of the incident, was clear and accurate. There was no basis for the Arbitrator to conclude that it was anything other than accurate. The report is devastating to the proposition that there was a fall onto a flexed knee causing a previously asymptomatic degenerative condition to become symptomatic.
The employer submits the chronology makes it utterly incontrovertible that the worker’s account of her symptoms did not include the left knee. Her multiple accounts of the injury all excluded any reference to the left knee injury or symptoms until 1 November 2007 when she told Dr Wong that her knee had been symptomatic since she tripped and fell three weeks prior to that consultation.
A fall onto a flexed knee is a central part of the thesis relied on by Dr Long and Dr Khan to make a causal nexus between the fall in October 1999 and the symptoms in the left knee in 2007. It is submitted that Dr Khan did not say that Mrs O’Brien fell onto a flexed left knee, he merely said her left leg went from underneath her. That statement cannot be equated with the statement that she “fell on her flexed left knee”.
The worker’s account of what happened, namely, “I tried to break my fall by using my elbows and my left leg went out from under me”, is consistent with the account recorded by Dr Khan.
The Arbitrator’s acceptance that an injury took place in February 1999 is a conclusion that is not available to the Arbitrator on the evidence considered in accordance with the dictates of Rule 15.2. The proposition is disproved by the fact that when the worker saw her doctor shortly after the incident and gave an account of herself, she made no mention of an injury to the knee, any impact to the knee, any symptoms referable to the knee and there was no sign of swelling or restriction in the knee.
The Arbitrator’s finding that the left knee had been symptomatic since the fall was not available to the Arbitrator and was never a fact.
The finding that the events of 28 October 1999 caused an aggravation of pre-existing asymptomatic degenerative changes in the knee was not a finding of fact that was available to the Arbitrator and is an error of fact.
The employer submits that the only expert evidence to the effect that the worker had sustained an injury to her left knee was based on a premise which was demonstrably false. In those circumstances, the evidence was not probative and it was an error of law for the Arbitrator to consider that it was.
The expert evidence relied upon by the Arbitrator was not a satisfactory basis for her findings. To regard it as satisfactory was both an error of fact and law. The absence of symptoms in the knee at the time of the fall, the absence of symptoms in the knee between the time of the fall and November 2007, the trip and fall in October 2007 causing the onset of symptoms, the failure by Dr Khan to reconcile the account given to him and his own statement that there had been a fall onto a flexed left knee, all combined to render useless the opinions upon which the Arbitrator based her decision.
The Arbitrator also fell into error in diminishing the critical evidence of Dr Martino. The employer seeks an order setting aside the findings of the Arbitrator that Mrs O’Brien’s fall on 28 October 1999 caused injury to her left knee and seeks an award in favour of the employer in respect of the allegation of injury to the left knee.

MRS O’BRIEN’S SUBMISSIONS

Mrs O’Brien submits that the employer’s appeal appears to be premised on the following misconceptions:
(a) that unless a worker can corroborate her version of events by reference to a contemporaneous history recorded by a doctor, then she must fail, and
(b) an injured worker’s version of events must be identical with the assumed facts upon which an expert doctor founds his or her opinion.
Fox v Percy does not assist the appellant. This is not a case where there was no evidence that would permit a finding that the respondent suffered injury to her knee.
The Arbitrator’s finding of injury was based upon the worker’s own evidence and the opinions of Drs Long and Khan. Mrs O’Brien’s statement was not “challenged or uncontroverted by other direct evidence”. The finding of injury was not “glaringly improbable”, “contrary to compelling inferences”, or at odds with “incontrovertible” evidence.
This is not a case where there were two or more competing versions of events or evidence. There was only Mrs O’Brien’s version of the injury. The histories obtained by the various doctors are circumstantial, it is hearsay evidence and although it may be accepted by the Commission, care must be exercised when doing so: Jackson v Lithgow City Council [2010] NSWCA 136 at [74] (Jackson). The lack of a complaint of knee pain is not devastating to the worker’s case. Mrs O’Brien’s submission was that in circumstances where she injured other body parts, that may have been her main concern, and could account for why Dr Martino may not have accurately recorded all complaints.
Mrs O’Brien submits that at best, evidence from the doctors is indirect evidence upon which an inference may or may not be drawn as to whether the worker’s direct evidence should or should not be accepted.
The Arbitrator’s reference to the absence of Dr Martino’s clinical notes was merely stating the obvious, namely that the clinical notes would have been more helpful in clarifying the history that was provided. It is not clear whether the history of complaints recorded by Dr Martino in his report of 2 January 2012 is based on his memory, his clinical notes and/or any other documents.
Mrs O’Brien submits that it is not a part of her case that she fell “on a flexed knee” and that the appellant’s assertion that she did, is to misconceive or misstate her evidence. Mrs O’Brien’s case is that her left knee twisted under her in the fall. That description of injury is consistent with Dr Long’s record in his report of 21 April 2008. Both mechanisms, that is that the knee twisted under her, or that the left knee doubled beneath her, are reasonably consistent with one another and entirely consistent with a flexion injury.
Dr Khan’s evidence that “her left leg went from under her” is not necessarily inconsistent with Mrs O’Brien suffering a flexion injury to her left knee. One could easily imagine such a flexion injury when falling from a chair.
Mrs O’Brien rejects the submission that there is a failure on behalf of her medico legal experts to properly explain their reasoning. She submits that the mechanism of injury was simple enough. It was not in issue that she suffered from extensive pre-existent degenerative changes; coupled with an old patella fracture. It is submitted that in such circumstances, “the reasoning process of highly experienced orthopaedic/general surgeons need not be exhaustive”: see the plurality judgment in Dasreef v Hawchar [2011] HCA 21 at 37 (Dasreef).

DISCUSSION

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is governed 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.”
Mrs O’Brien asserts in her statement dated 22 June 2010, made more than 11 years after her incident on 28 October 1999 that she injured her left knee when it “twisted under me” as she fell from a broken chair during the course of her employment.
The appellant submits that the objective evidence indicates that Mrs O’Brien made no complaint of an injury to the left knee or symptoms referrable to a left knee injury after the incident or at any other time until 1 November 2007 when she reported an injury to the left knee to Dr Wong. At that time she referred to a fall three weeks earlier. No other evidence was given regarding the circumstances of the fall or any injuries that may have been sustained at that time.

As the chronology reveals, Mrs O’Brien saw many doctors and provided a history of her injury on numerous occasions between 1999 and 2007, none of which made any reference to the knee being injured in the circumstances that she now describes, or of any symptoms referrable to a left knee injury.
The Arbitrator found at [59] of her Reasons, that although the worker’s statement is only of recent origin, she accepted it as a detailed account of what happened; namely, that the worker’s left leg twisted under her in the fall.
The question is whether that finding, having regard to the objective evidence, was correct.
The Commission is not bound by the rules of evidence: s 354 of the 1998 Act. The correct approach to the appraisal of evidence by the Commission was recently considered by the Court of Appeal in Onesteel Reinforcing Pty Ltd v Sutton[2012] NSWCA 282. The Court’s views included those observations made by Allsop P at [2] and [3]:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd[1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond[1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd[2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth[2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council[2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].
Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”
It is not in accordance with any principle of law that, although Mrs O’Brien was not cross-examined as to her evidence, it must be taken to be true. The worker’s submission that her version of events was not challenged is not correct. The employer directly challenged it as being inconsistent with Dr Martino’s history and her own claim form.
There can be no issue that having regard to the way in which the case was argued before the Arbitrator, that Mrs O’Brien’s account of what happened to her knee in the incident on 28 October 1999, was very much in issue.
Contrary to Mrs O’Brien’s submission, the appellant does not assert that her case must fail unless she is can corroborate her version of events concerning the fall in 1999. In civil proceedings, corroboration is not a legal requirement for the acceptance of a witness’s evidence: Chanaa v Zarour [2011] NSWCA 199 at [86].
As was put to the Arbitrator, the reliability of Mrs O’Brien’s evidence with respect to the alleged knee injury, must be assessed in light of the evidence of histories she provided to her various treating doctors between 28 October 1999, when she was injured, and 1 November 2007, when a complaint in relation to the left knee first surfaced in Dr Wong’s notes.
It is significant that Mrs O’Brien made no mention of an injury to her knee when she saw her general practitioner, Dr Martino, on the day of the incident. I do not accept the appellant’s submission that the Arbitrator diminished Dr Martino’s evidence because of the absence of his clinical notes in evidence. I do not understand that to be the import of the Arbitrator’s findings at [56] of her Reasons. She merely noted that she would have been assisted in finding what actually occurred on the day of the incident had she had access to his clinical notes.
The history obtained by Dr Martino on the day of the incident is entirely consistent with the worker’s account of what happened, except for the absence of a reference to twisting her left knee. Dr Martino took a very careful history of what happened on the day of the incident and made a careful note of the worker’s complaints of injury. The Arbitrator’s conclusion that Mrs O’Brien may not have given a full account of what happened to Dr Martino because of the distress and pain she was suffering immediately after the incident is speculative. Mrs O’Brien did not say that she failed to report any injury to her knee for that reason. There is no evidence to support that conclusion or that Mrs O’Brien’s capacity to give a complete and accurate history was impaired in any way. In fact, the evidence is to the contrary, in that Mrs O’Brien demonstrated that she was capable of, and in fact did give, a complete history of the circumstances of her injury and her symptoms to Dr Martino on the day of the incident.
Over the ensuing years to 2007, Mrs O’Brien made no reference to any injury to her knee or symptoms in the knee to numerous attending medical practitioners including Drs Yap, Griffith, Sheridan, Salmon, Lombardo, Day, Giblin, Cheung, Ellis or Norsworthy. Nor is there any record of any such complaints in the clinical notes of general practitioners attending her during that period.
The Arbitrator’s found at [59] of the Reasons, that the worker’s statement was generally consistent with the report of injury form submitted by the worker in November 1999. That report of injury form was submitted by the employer, not Mrs O’Brien. However, she did submit a compensation claim form on 28 October 1999. The information on that form was not consistent with the worker’s statement in that she identified injuries to her neck, left arm, back, left side, left breast and left hip, however, she made no reference to an injury to the left knee.
The Arbitrator accepted that there were inconsistencies as to what happened on 28 October 1999. Mrs O’Brien made no attempt to address the inconsistencies in her own evidence as to the circumstances of the incident and that which is recorded in the many treating doctor’s reports and notes.
It may readily be accepted that an injured worker having suffered injuries to multiple body parts may not accurately refer to each of them at each and every medical examination. However, Mrs O’Brien did not mention the problems with her knee to any of her treating doctors between 1999 and 2007. There was not one occasion when she made any mention of any injury to, or symptoms in, her knee or received any treatment or investigation for it during that period. The only reference to an injury to her knee emanated from her own evidence and from the histories she gave to medico-legal consultants after 2007.
Factual findings may be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr(1966) 39 ALJR 505 (Kerr) which decision has been discussed in the context of Commission appeals by Roche DP in Raulston v Toll Pty Ltd[2011] NSWWCCPD 25. It must be shown that the Arbitrator was wrong. Such error may be established by showing that, as stated by Barwick CJ (at 506):
“Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge was so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
In my view, the Arbitrator erred by giving too little weight to the abundant objective evidence of an absence of reported injury to, or the presence of symptoms in, the left knee for many years after the incident. The preponderance of the evidence did not support the Arbitrator’s conclusion of injury to the left knee as alleged. I reject Mrs O’Brien’s submission that the absence of complaints of knee pain is “not devastating to her case”. The objective evidence against a finding of injury to the knee is so overwhelming that Mrs O’Brien’s evidence on that issue should not be accepted.
The passage Mrs O’Brien referred to in Jackson at [74] does not assist her argument. In Jackson, the Court of Appeal was concerned with the assessment of evidence giving rise to inferences as to the cause of the plaintiff’s injuries, in the absence of direct evidence. That is not apposite in this matter. This matter concerns an assessment of whether the worker’s evidence should be accepted when weighed against other objective evidence.
The Arbitrator found at [67] of her Reasons, that Mrs O’Brien also suffered an aggravation of pre-existing arthritis in the left knee in the incident of 28 October 1999. That finding was based on the evidence of Drs Long and Khan. I have reviewed Dr Long’s report very carefully. He gave a detailed account of Mrs O’Brien’s presenting problems requiring his assessment. These included injuries to the neck, radiating to the left shoulder and arm; a burning sensation in the forearm involving pins and needles in the left hand, back pain radiating to the left iliac fossa and abdomen, and radiating to the thigh and ankle, and similar symptoms in the right leg. There is no mention of any presenting problems with the left knee.
Dr Long also reviewed the x-ray report of Dr Brian Dubowitz of 7 November 2007. The x-rays showed evidence of osteoarthritis bilaterally. On the left side, a fracture of the inferior pole of the patella with some displacement was noted. There was marked degenerative narrowing of the patellofemoral joint.
Dr Long did not record a history of symptoms in the left knee following the work incident in 1999. That is unsurprising as Mrs O’Brien made no reference in her evidence to a continuation of left knee symptoms following the incident on 28 October 1999. He did not identify any trauma to the knee arising from the 1999 incident or identify any pathological change to the knee sustained at that time. His only reference to the left knee is the history that it doubled beneath her when she fell. Dr Long did not provide any explanation for the conclusion that the worker suffered an aggravation of an arthritic condition in the knee arising from the incident in 1999. In those circumstances, Dr Long’s conclusion that Mrs O’Brien aggravated the arthritic condition of her left knee during the fall on 28 October 1999, is difficult to accept. For these reasons his evidence carries little weigh.
The Arbitrator’s finding of aggravation of a diseased is based, in part, on the evidence of Dr Khan. Dr Khan recorded the history that Mrs O’Brien’s legs went from under her in the incident in 1999. His conclusion however, of an aggravation of a degenerative disease, is based on the worker having fallen on her flexed left knee which had twisted during the fall. In her submissions on appeal, Mrs O’Brien expressly disavows the suggestion that she fell on a flexed knee.
It may well be that Dr Khan’s history was “not necessarily inconsistent with Mrs O’Brien suffering a flexion injury to the knee”, as submitted on appeal, but that does not advance her case. There is no contemporaneous evidence that Mrs O’Brien suffered a flexion injury to the knee in the fall at work. The absence of such evidence is not necessarily fatal to her claim, but the absence of such evidence and the absence of any reference to knee symptoms until she fell in late 2007, is telling.
Dr Khan’s conclusion that the injury in 1999 led to the progression of a degenerative disease is based on his understanding that Mrs O’Brien suffered from “pain, suffering and stiffness” in interval between October 1999 and November 2007. As the detailed chronology reveals, there is no evidence of such complaints until after a separate and unrelated fall in late 2007. For these reasons, Dr Khan’s opinion carries little weight.
Mrs O’Brien submitted that the Commission ought not accept there has been any failure on the part of her medico legal experts to explain their reasoning. She submitted that the mechanism of injury was simple enough in that she suffered from extensive pre-existing degenerative changes and given that the opinions expressed were from highly experienced orthopaedic/general surgeons, their opinion “need not be exhaustive”; Dasreef at [37].
Dasreef is not authority for the proposition advanced by Mrs O’Brien. Dasreef was concerned with the admissibility of expert evidence under the Evidence Act 1995 (NSW). As I have already noted, the Evidence Act does not apply to Commission proceedings.
For these reasons, the Arbitrator’s finding of an aggravation of the degenerative condition in the left knee arising from the incident at work on 28 October 1999, is unsustainable and is an error.

CONCLUSION

Notwithstanding the worker’s evidence, the conclusion I have reached is that in the absence of any contemporaneous complaints of injury to the left knee, or any mention of left knee injuries or symptoms between the incident on 28 October 1999 and the report to Dr Wong on 1 November 2007, the Arbitrator erred in concluding that the worker suffered an injury to her left knee in the incident on 28 October 1999. She also erred by concluding that Mrs O’Brien suffered aggravation of a degenerative disease in the left knee as a result of that incident.

DECISION

Paragraph one of the Arbitrator’s determination of 3 August 2012 is revoked and the following orders are made in its place:
“The degree of permanent impairment of the neck, the degree of permanent impairment of the back, the degree of permanent loss of efficient use of the left arm at or above the elbow (including the shoulder and radiating pain) in respect of injuries sustained on 28 October 1999, are remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment under the Table of Disabilities.”
Paragraphs two, three and four of the Arbitrator’s determination of 3 August 2012 are confirmed.

COSTS

No order as to costs.

Judge Keating

President
15 November 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE