| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1 | |
| APPELLANT: | Frankie Vaughan | |
| RESPONDENT: | Secretary, Department of Education | |
| INSURER: | Allianz Australia Insurance Ltd as Agent for NSW Self Insurance Corporation | |
| FILE NUMBER: | A3-2202/17 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 21 July 2017 | |
| DATE OF APPEAL DECISION: | 10 January 2018 | |
| SUBJECT MATTER OF DECISION: | Extension of time to bring an appeal: r 16.2(12) of the Workers Compensation Commission Rules 2011, admission of fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501, roles of arbitrators and Approved Medical Specialists in the Commission’s bifurcated system – application of Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, alleged factual error – application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | P K Simpson & Co |
| Respondent: | Rankin Ellison Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
This appeal involves challenges by a worker to the fact finding process, and raises issues about the respective roles of arbitrators and Approved Medical Specialists (AMSs) in the Commission’s bifurcated system. The appeal does not have prospects of success on its merits, and leave to extend time is refused, for reasons which follow.
BACKGROUND
Frankie Vaughan was employed as a teacher by the Secretary, Department of Education (the Department) at Singleton High School. While teaching Manual Arts on 13 November 2012, he was involved in an incident in which he took the weight of a number of sheets of pre-cut metal. There was a dispute regarding the nature of any injury he sustained at the time. He subsequently taught at Bourke, Albury and Cairns, where he now lives. In Cairns he came under the care of Dr Mansfield, an orthopaedic surgeon. Dr Mansfield operated on Mr Vaughan’s right shoulder on 23 March 2015, and on his left shoulder on 25 August 2015.
On 8 February 2013 the Department’s insurer issued a s 74 notice, declining liability on a claim for injury to Mr Vaughan’s right shoulder in the incident. It denied ‘injury’ to the right shoulder, and also that s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied. Subsequently a claim was made for the left shoulder, relying on the same incident. In correspondence dated 15 May 2013 the insurer accepted liability for that injury. The insurer accepted liability for the cost of the surgery to both shoulders, referred to above. Mr Vaughan was assessed at the request of his solicitors by Dr English, an orthopaedic surgeon, who reported on 30 May 2016. Dr English assessed whole person impairment (WPI) of 8% in respect of the right upper extremity, 7% in respect of the left upper extremity, and 2% in respect of scarring, a combined figure of 16%.
Mr Vaughan’s solicitors made a claim for lump sum compensation on his behalf. The insurer declined liability for injury to the left and right shoulders in the incident of 13 November 2012, in a s 74 notice dated 20 September 2016. The insurer accepted that Mr Vaughan injured his right biceps in the incident, but denied that he had injured either of his shoulders, and denied that s 9A of the 1987 Act was satisfied in respect of any injury to the shoulders. It denied the claim for lump sum compensation, and that treatment expenses were payable in respect of the shoulders.
THE ARBITRAL PROCEEDINGS AND DECISION
The proceedings were commenced by an Application to Resolve a Dispute registered on 5 May 2017 (the Application). An arbitration hearing was held on 28 June 2017. Mr Carney appeared for Mr Vaughan, and Mr Andrew Parker appeared for the Department. There were no applications to adduce oral evidence or to cross-examine. Counsel for the parties addressed, and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 21 July 2017, accompanied by 22 pages of reasons[1].
[1] Vaughan v Secretary, Department of Education [2017] NSWWCC 169 (Decision).
The Arbitrator described Mr Vaughan’s evidence about his injury[2]. He referred in detail to contemporaneous histories recorded by treating doctors[3]. He summarised the histories recorded by, and views of, multiple doctors, both treating and qualified by the parties[4]. The Arbitrator referred to the “imaging issue”, which involved an exchange between Dr Mansfield and Dr Breit, in their reports, about the accuracy of imaging procedures[5]. He summarised the submissions of counsel[6].
[2] Decision at [12] (quoting Mr Vaughan’s statement dated 24 April 2017 at [4]-[9]) and at [78] (quoting the statement at [18]-[22]).
[3] Decision at [13]-[25].
[4] Decision at [26]-[70].
[5] Decision at [71]-[77].
[6] Decision at [79]-[93].
The Arbitrator referred to a submission by Mr Carney, that the evidence established that an injury occurred on 13 November 2012, and the Arbitrator was then required to refer the issue of permanent impairment for assessment by an AMS. Mr Carney submitted the precise nature of the injury was then a matter for the AMS to determine. The Arbitrator referred to Inghams Enterprises Pty Limited v Belokoski[7], which applied Jaffarie v Quality Castings Pty Ltd[8] and Kempsey Shire Council v Kirkman[9]. The Arbitrator said that the “dispute in this matter concerns the nature of the injuries claimed”, was it “injuries to [Mr Vaughan’s] shoulders”, or “only to the right biceps”.[10]
[7] [2017] NSWWCCPD 15 at [221]-[222] (Belokoski).
[8] [2014] NSWWCCPD 79 (Jaffarie).
[9] [2010] NSWWCCPD 104 (Kirkman).
[10] Decision at [94]-[96].
The Arbitrator identified “large parts of [Mr Vaughan’s] history that were not addressed” in the evidence.[11] His statement was “unhelpful”. He gave no account of the “progress of his condition, nor the nature of the work he was doing between 13 November 2012 and the date of his statement”. The absence of such evidence made “assessment of the contribution, if any, that the incident in 2012 made to the pathology discovered by Dr Mansfield in 2015 problematic”. The Arbitrator referred to the absence of evidence from Dr Misra, one of Mr Vaughan’s general practitioners.
[11] Decision at [97]-[99].
The Arbitrator said that the first complaint about the left shoulder was made to Dr Relativo on 4 May 2013, with a history of 2 to 3 weeks pain in that shoulder, “nil trauma noted”.[12] The Arbitrator said that there was no explanation for why Mr Vaughan had 4 general practitioners (Drs Sasitharam, Sundar, Relativo and Misra) between 18 December 2012 and 15 May 2013. He referred to inconsistencies between the histories of injury, and initial symptoms, recorded by Drs Fraser, Mansfield, Sharwood, English and Breit.[13]
[12] Decision at [108].
[13] Decision at [109]-[111].
The Arbitrator said that he preferred the opinion of Dr Breit. Dr Fraser (a treating orthopaedic surgeon) on 21 August 2013, reported that Mr Vaughan’s “rotator cuffs on both sides were intact”, and “although MRI scans had shown mild impingement bilaterally”, on clinical examination “impingement tests were negative”. Dr Fraser found that Mr Vaughan was fully fit. Dr Breit referred to a report from Mr Silcock (an independent physiotherapy consultant). Mr Silcock referred to the diagnosis as “an effusion of the right biceps”. The treatment given (physiotherapy and exercise physiology) was described by Dr Breit as appropriate for a right biceps injury, but “inappropriate management for rotator cuff impingement”. Dr Breit said this was “consistent with the first history of injury”, being to the right biceps.[14]
[14] Decision at [114]-[115].
The Arbitrator contrasted the MRI report of Dr Chew dated 16 August 2013, dealing with the right shoulder, with the description of the MRI findings in Dr Mansfield’s report dated 29 June 2015. Dr Chew’s radiology report did not suggest a “deep partial thickness tear” of the supraspinatus, “as alleged by Dr Mansfield”. The Arbitrator said that no treatment of the left shoulder was demonstrated until May 2013, and there was no support for the “later claim” that it was injured on 13 November 2012.
The Arbitrator referred to the Department’s acceptance of liability for the cost of bilateral shoulder surgery. He said that payment of compensation does not “of itself create an admission of liability”, applying Department of Education & Training v Sinclair[15].
[15] [2005] NSWCA 465; 4 DDCR 206 (Sinclair) per Spigelman CJ at [88]-[93].
The Arbitrator found that Mr Vaughan had failed to discharge his onus. He said that there were “sweeping generalities” in Mr Vaughan’s statement and histories to medico-legal referees, which were not consistent with contemporaneous evidence. There were “many gaps” in the evidence about Mr Vaughan’s treatment and the progress of his condition”. He was “unable to determine on the balance of probabilities that the injuries alleged by [Mr Vaughan] were sustained on 13 November 2012”. There was an award in favour of the Department.
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 pursuant to s 352(3) of the1998 Act have been met.
Mr Vaughan initially lodged an Application to Appeal on 17 August 2017 (matter no A1-2202/17), in time. The Registrar rejected the appeal for reasons set out in a letter dated 18 August 2017. The letter stated that if a fresh appeal was lodged, that was compliant with the 1998 Act, the Workers Compensation Commission Rules 2011 (the Rules) and Practice Direction No 6, it must address the issue of time. Mr Vaughan’s solicitors wrote to the Registrar on 22 August 2017, requesting an extension of time for 14 days, pursuant to r 3.2(1) of the Rules, to file a fresh appeal. The Registrar wrote to the solicitors on 24 August 2017, advising that an application to extend time would need to be made pursuant to r 16.2(12) of the Rules, to be determined by a Presidential member.
A further Application to Appeal was lodged on Mr Vaughan’s behalf on 25 August 2017 (No A2-2202/17). It was rejected by the Registrar for reasons set out in a letter dated 29 August 2017. One of the reasons given was the failure to include submissions in support of an extension of time; the appeal being out of time. Another Application to Appeal was lodged on 6 October 2017. The Registrar issued a Direction dated 10 October 2017, directing that, in compliance with Practice Direction No 6, the appeal set out written submissions in consecutively numbered paragraphs. The Amended Application to Appeal (A3-2202/17) was re-lodged on 12 October 2017. It was outside the period of 28 days within which an appeal can be made, pursuant to s 352(4) of the 1998 Act. It requires an extension of time pursuant to r 16.2(12) of the Rules, if it is to proceed.
Mr Vaughan’s submissions on the extension of time
The Application to Appeal in the current proceedings contains submissions in support of the application to extend time. These include a factual assertion by Mr Vaughan’s solicitor that the letters from the Registrar dated 24 and 29 August 2017, rejecting the appeal, “were not received until 25 September 2017 by email and only as a result of a follow-up call … to check on the status of the Application”.
Mr Vaughan’s submissions on time, after referring to the procedural difficulties described above, say that the original rejection of the document was based on “non-compliance with the Practice Direction rather than on any substantive ground”, and that delay was occasioned by Mr Vaughan’s solicitors seeking counsel’s advice, and instructions from Mr Vaughan to continue with the appeal. Mr Vaughan submits that demonstrable and substantial injustice would arise if the right to appeal were lost.
The Department’s submissions on the extension of time
The Department opposes the extension of time. Mr Vaughan is bound by the conduct of his solicitors. The appeal was ultimately lodged and registered out of time, having been rejected due to procedural deficiencies in preparation of the Application to Appeal. The Department submits that ignorance of the law is not an exceptional circumstance within the meaning of r 16.2(12), referring to O'Carroll Constructions Pty Ltd v Burgess[16]. The Department said it accepted the substantial merits of the appeal would require consideration, but if the appeal was to be dismissed, there should be a formal order declining leave.
[16] [2007] NSWWCCPD 224.
Consideration
The application to extend time is governed by r 16.2(12) of the Rules which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The presence of ‘exceptional circumstances’ is to be “considered by the Presidential member as a matter within jurisdiction as opposed to a precondition”: Bryce v Department of Corrective Services[17]. The meaning of ‘exceptional circumstances’ was considered in Yacoub v Pilkington (Australia) Ltd[18]. These principles have been frequently applied in the Commission, in Presidential decisions dealing with r 16.2(12). It is appropriate also, in exercising the discretion, to have regard to the principles discussed in the judgment of McHugh J in Gallo v Dawson[19]. These principles were summarised by Roche DP in Allen v Roads and Maritime Services[20] as involving the need to have regard to the following:
“(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”
[17] [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing) at [8].
[18] [2007] NSWCA 290 (Yacoub) (per Campbell JA at [66], Tobias JA and Handley AJA agreeing).
[19] [1990] HCA 30; 64 ALJR 458 at [2].
[20] [2015] NSWWCCPD 39 at [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd[21] the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
[21] [2014] NSWCA 34 per Basten JA (Beazley P and Leeming JA agreeing) at [9].
The appeal became out of time, following its rejection on 18 August 2017. Mr Vaughan’s solicitors do not dispute receiving that correspondence. The Commission file indicates that the letter dated 29 August 2017, with attachments, was sent to Mr Vaughan’s solicitor by email on 29 August 2017. It ‘bounced back’ as it was too large, and was then resent in two parts, which did not ‘bounce back’. The Commission file indicates that, following a telephone enquiry from Mr Vaughan’s solicitors on 25 September 2017, the letter dated 29 August 2017 was resent again in two parts, receipt on this occasion being acknowledged on 25 September 2017.
The appeal initially became out of time because it was rejected on 18 August 2017, due to procedural non-compliance. The stated reasons were that the appeal did not provide adequate submissions in respect of each identified ground, and did not attach a brief outline of the fresh evidence on which Mr Vaughan sought to rely, and the reasons why the fresh evidence was not given in the proceedings before the Arbitrator. The subsequent difficulties in registering the appeal did not result in it being out of time, although did affect the extent to which it was out of time. The explanation for the appeal not being lodged within time appears sufficiently from Mr Vaughan’s submissions.
The presence of ‘exceptional circumstances’ is not a precondition for extending time, but is something which a Presidential member is required to consider in dealing with such an application.[22] Mr Vaughan’s submissions do not address the issue of whether ‘exceptional circumstances’ exist. I accept the Department’s submission that ‘exceptional circumstances’ are not present. That an appeal may be rejected due to non-compliance with the procedural requirements, including those in Practice Direction No 6, is a circumstance that is “regularly” and “routinely” encountered. It is not exceptional.[23] I accept the Department’s submission that, to the extent to which the failure to lodge the appeal within time stemmed from error in complying with the legal requirements, this does not constitute ‘exceptional circumstances’[24]
[22] Bryce at [8].
[23] Yacoub at [66].
[24] Department of Corrective Services v Buxton [2007] NSWWCCPD 55 at [25]-[26].
There are some inconsistencies between the subsequent procedural developments from 18 August 2017 to 12 October 2017, as outlined in Mr Vaughan’s submissions, as opposed to the Commission file. It is unnecessary to resolve those inconsistencies, for current purposes.
The following favour the extension of time:
(a) Delay, at least to the extent to which the appeal originally became out of time, is explained.
(b) The Department does not submit it has suffered prejudice as a result of any delay.
(c) There is nothing in the history of the matter, the conduct of the parties or the nature of the litigation which militates against extending time.
The following weighs against the extension of time:
(a) The presence of ‘exceptional circumstances’ has not been established.
(b) The Department has a vested interest in retaining the decision in its favour, subject to the application to extend time.
In the circumstances, the prospects of success of the appeal are important in considering whether the discretion should be exercised in Mr Vaughan’s favour. Mr Vaughan submits he would suffer a “demonstrable and substantial injustice … should the right to appeal be lost”. The Department submits that the appeal would fail in any event.
This requires a consideration of the merits of the appeal. The appeal is considered below, on its merits. For reasons which follow, the appeal would not succeed, even if time were extended. In those circumstances, there is no injustice to Mr Vaughan if time is not extended. This militates heavily against extending time.
I also note the Arbitrator’s reasons for rejecting Mr Vaughan’s case on injury to the left shoulder, which are discussed below. Even if Mr Vaughan had succeeded on his allegation of injury to the right shoulder, his assessments of permanent impairment (in the absence of a found injury to the left shoulder) would have been insufficient to support a claim for lump sum compensation pursuant to s 66(1) of the 1987 Act.
The appropriate order is that Mr Vaughan’s application to extend time pursuant to r 16.2(12) of the Rules be refused.
NATURE OF THE APPEAL
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
GROUNDS OF APPEAL
References in these reasons to the Application to Appeal are to the Amended Application to Appeal in matter no A3-2202/17, registered on 12 October 2017 (the Appeal). That document raises the following grounds:
(a) The Arbitrator erred in making an award for the respondent (Ground No 1).
(b) The Arbitrator erred in not finding a mechanism for injury (Ground No 2).
(c) The Arbitrator’s decision was outside his jurisdiction and ultra vires, in that the dispute should have been resolved by referral to an AMS (Ground No 3).
(d) The Arbitrator misdirected himself in regard to the medical conflict between Drs Mansfield, English and Breit (Ground No 4).
(e) The Arbitrator erred in finding there was no contemporaneous evidence as to injury (Ground No 5).
The Appeal describes Grounds Nos 1-4 as errors of law, and Ground No 5 as an error of fact.
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 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.
In CHEP Australia Ltd v Strickland[25] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]-[31] said:
“27. 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.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. 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.”
[25] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
The power to admit fresh or additional evidence is therefore concerned with evidence that, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous: Northern NSW Local Health Network v Heggie[26].
[26] [2013] NSWCA 255; 12 DDCR 95 per Sackville AJA (Basten and Ward JJA agreeing) at [66].
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd[27]said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)
[27] [2015] NSWWCCPD 10 (Drca) at [28].
The fresh evidence the subject of the application
Mr Vaughan seeks leave to rely on two articles from medical literature:
(a) an article entitled “Comparison with Surgical Findings for the Accuracy of Routine MRI in Rotator Cuff Tears”[28], and
(b) an article entitled “Magnetic Resonance Imaging, Magnetic Resonance Arthrography and Ultrasonography for Assessing Rotator Cuff Tears in People with Shoulder Pain for Whom Surgery is Being Considered”[29].
[28] N Darai et al, ‘Comparison with Surgical Findings for the Accuracy of Routine MRI in Rotator Cuff Tears’ (2016) 6 Open Journal of Radiology, 73-83 (the first article).
[29] M Lenza et al, ‘Magnetic Resonance Imaging, Magnetic Resonance Arthrography and Ultrasonography for Assessing Rotator Cuff Tears in People with Shoulder Pain for Whom Surgery is Being Considered’ (2013) 9 Cochrane Database of Systematic Reviews (the second article).
The first article described its objective:
“To evaluate the diagnostic efficacy of magnetic resonance imaging (MRI) for the detection of partial-thickness rotator cuff tears (PTT) and full-thickness rotator cuff tears (FTT) by comparing its finding with surgical findings as the gold standard and to improve the previous MRI accuracy in diagnosing rotator cuff tears (RCT) considering more variables.”[30]
[30] The first article at p 73.
The ‘Discussion’ in the first article included:
“Evaluation of the diagnostic accuracy of MRI in RCT was another purpose of this retrospective study. For this by comparing with the surgical findings of RCT, the diagnostic accuracy (percentage of correct diagnosis) of MRI have been calculated which showed 81.3% and 98.8% for PTT and FTT respectively.” [31]
[31] The first article at p 79.
The ‘Conclusion’ in the first article commenced:
“For patients with acute and chronic shoulder discomfort, MRI is very reliable imaging investigation for both PTT and FTT despite its relatively high cost and occasional limited availability. The super high-field scanners provide superior imaging quality, but it is not without limitations. To detect PTT the ability of MRI is less well established than that for detecting FTT.” [32]
[32] The first article at p 82.
The second article described its objective:
“To compare the diagnostic test accuracy of MRI, MRA and US for detecting any rotator cuff tears (i.e. partial or full thickness) in people with suspected rotator cuff tears for whom surgery is being considered.”[33]
[33] The second article at p 1.
The second article indicated that the results which it analysed were taken from previous studies, and comparisons were “based on indirect comparisons which may be prone to bias due to confounding”. The authors concluded:
“MRI, MRA and US have good diagnostic accuracy and any of these tests could equally be used for detection of full thickness tears in people with shoulder pain for whom surgery is being considered. The diagnostic performance of MRI and US may be similar for detection of any rotator cuff tears. However, both MRI and US may have poor sensitivity for detecting partial thickness tears, and the sensitivity of US may be much lower than that of MRI. The strength of evidence for all test comparisons is limited because most studies were small, heterogeneous and methodologically flawed, and there were few comparative studies. Well designed studies that directly compare MRI, MRA and US for detection of rotator cuff tears are needed.”[34]
[34] The second article at p 2.
Dr Mansfield, responding to a letter from the Department’s insurer, said:
“… shoulder MRs are only able to diagnose about 80% of rotator cuff tears and certainly it depends on the quality of the MR, the expertise of the person reading it, and its correlation with the symptoms and signs.”[35]
[35] Dr Mansfield’s report dated 2 March 2015
Responding to another letter from the Department’s insurer, Dr Mansfield said:
“It is also a fact that MRs are only 80% accurate and do not demonstrate deep partial thickness tears unless done with an arthrogram and then they are far from 100% and the diagnosis and decision making about surgery is made at the time of surgery.”[36]
[36] Dr Mansfield’s report dated 29 June 2015 at p 2.
Dr Breit, conducting a “file review” at the insurer’s request, said:
“It would seem that Dr Mansfield has already operated on this gentleman’s shoulder having maintained that only 80% of rotator cuff tears are picked up on MRI, I do not know who is doing his MRIs, but I would be very upset with that degree of error.”[37]
[37] Dr Breit’s report dated 8 April 2015 at p 1, restated in his report dated 22 May 2015 at p 1.
Dr Breit reported on 17 August 2016, after examining Mr Vaughan. It appears that Mr Vaughan did not bring the films from the MRIs carried out on 16 August 2013. Dr Breit was critical of the reporting of these investigations. He then said:
“I refer you to my comments in a file review from 22 May 2015 which I confirm. Dr Mansfield’s opinion about MRIs is not supported by the international literature where it is considered the gold standard of investigation and there has been a recent Cochran study by McGarvey which confirms that as well.”[38]
[38] Dr Breit’s report dated 17 August 2016 at p 8.
Mr Vaughan’s submissions
Mr Vaughan submits that the first article is supportive of Dr Mansfield’s opinion that only 80% of rotator cuff tears are picked up on MRI. It submits that the second article concludes that “Ultrasound and MRI have poor sensitivity for detecting partial thickness tears … contrary to Dr Breit’s opinion that MRI is a gold standard in assessment of this particular injury …”[39].
[39] Mr Vaughan’s submissions at [32]-[33].
It is submitted on Mr Vaughan’s behalf that the fresh evidence was not relied on at the arbitration hearing, as it was the Arbitrator’s statutory function to “consider whether an injury occurred as opposed to attempting to decide the medical dispute”. That task “… ought to have been left for an Approved Medical Specialist”. Mr Vaughan submits that failure to allow the fresh evidence “will result in a significant miscarriage of justice”.
The Department’s submissions
The Department submits that there is no evidence, and it is not submitted by Mr Vaughan, that the fresh evidence was unavailable or could not be obtained prior to the arbitration hearing. Rather a forensic decision was made that Mr Vaughan did not need to rely on such evidence. Failure to admit the fresh evidence would not cause substantial injustice, the appeal does not turn on any issue about the reliability of the radiological evidence.
Consideration
The s 74 notice dated 20 September 2016 made it clear the Department accepted that Mr Vaughan injured his right biceps in the incident on 13 November 2012, but disputed that he injured his shoulders. The notice referred to various pieces of evidence that supported this position, including the opinion of Dr Breit. The material served with the notice included the reports of Dr Breit dated 8 April 2015, 22 May 2015 and 17 August 2016, and multiple reports of Dr Mansfield, including that dated 2 March 2015 (which commented on the reliability of MRIs in identifying rotator cuff tears). The issues were apparent at that time, including a difference of opinion between Dr Mansfield and Dr Breit about MRIs. Dr Breit’s report dated 17 August 2016 referred to “a recent Cochrane study by McGarvie.”[40]
[40] Dr Breit’s report dated 17 August 2016 at p 8.
Leave on the basis of s 352(6) and the first limb in Strickland requires that the fresh evidence not have been available to the party, and that it not have been reasonably obtainable, for the arbitration hearing. The articles are dated 2013 (the second) and 2016 (the first). I infer that the articles were available by way of download from the internet. On their face, the articles were available before the proceedings were commenced in May 2017. Mr Vaughan does not submit that they were not. Mr Vaughan submits that the reason the fresh evidence was not available at the arbitration hearing, was because he could not know that the Arbitrator would attempt to “decide the medical dispute”, rather than leave that for an AMS.[41] This does not fall within the first limb of Strickland. It does not establish that the evidence was not available and could not reasonably have been obtained. The first limb is not satisfied.
[41] Mr Vaughan’s submissions at [34].
I note in passing that the second article, although published on the Cochrane Database of Systematic Reviews, does not appear, on its face, to have been written by, or associated with, anyone by the name of McGarvie. That is, it does not appear to be the article to which Dr Breit referred.
Mr Vaughan’s submissions also state that the first article “provides a result that MRI correctly identified partial thickness tear accuracy at 81.3%, which aligns with Dr Mansfield’s opinion”[42]. This is not correct. Dr Mansfield said that MRIs are “only able to diagnose about 80% of rotator cuff tears”. Dr Mansfield’s opinion on this point was not restricted to partial thickness tears. In fact the first article indicated that MRIs correctly diagnosed a little more than 80% of partial thickness tears, and a little less than 100% of full thickness tears[43].
[42] Mr Vaughan’s submissions at [32].
[43] See the passage quoted at [46] above.
The second limb in Strickland requires that absence of the fresh evidence would cause “substantial injustice”. Deputy President Roche, applying the second limb in Drca, said “[t]his requires a consideration of what the result ‘would’ be if the evidence were excluded and what the result ‘would’ be if it were admitted”[44]. Mr Vaughan’s submissions do not deal with the second limb of the test in Strickland, other than to assert that failure to admit the fresh evidence “would result in a significant miscarriage of justice”[45]. The submissions contain no analysis of whether admission of the articles would change the result, and if so, how.
[44] Drca at [26].
[45] Mr Vaughan’s submissions at [35].
The highest that Mr Vaughan’s submissions put it is that leave to rely on the fresh evidence “may result in an Award in favour of the Appellant”. As was observed by Barrett JA, “[t]he part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes”[46]. It is not submitted that admission of the two articles, as fresh evidence, would lead to a different result. The Arbitrator’s decision, particularly in the penultimate paragraph, makes it clear that there were a number of factors that led to his conclusion that Mr Vaughan had not discharged his onus of proving injury to the shoulders. It could not be concluded that the resolution of any disagreement between Dr Mansfield and Dr Breit, about the reliability of MRIs, was determinative. Mr Vaughan’s submissions do not suggest that it was determinative. The second limb of the test in Strickland is not satisfied.
[46] Strickland at [31].
Neither of the threshold tests in Strickland is satisfied. The application to rely on fresh would not have succeeded.
THE WAY IN WHICH MR VAUGHAN’S SUBMISSIONS ARE FRAMED
Although Mr Vaughan relies on five grounds, his submissions effectively deal with two issues. One of these is whether, in dealing with whether Mr Vaughan injured his shoulders in the incident on 13 November 2012, the Arbitrator exceeded his statutory authority. Mr Vaughan submits that this was properly a matter for an AMS.
The second issue is whether the Arbitrator fell into error in the way that he analysed the evidence, and the conclusion he reached on the issue of injury to the shoulders.
There is a degree of overlap between the submissions on the various grounds.
LEGISLATIVE PROVISIONS
Section 65 of the 1987 Act provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The term ‘medical dispute’ is defined in s 319 of the 1998 Act:
“319 Definitions
In this Act:
…
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 321 of the 1998 Act provides:
“321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4) The Registrar may not refer for assessment under this Part:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Section 326 of the 1998 Act provides:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
GROUND NO 1–THE AWARD IN FAVOUR OF THE DEPARTMENT
This ground simply reads “The Arbitrator erred in granting an Award for the Respondent in regards to injury.”
Mr Vaughan’s submissions
The submissions offer little elucidation. They assert that the Arbitrator erred in finding “no injury”, which was “against all the evidence that an incident causing injury occurred on 13 November 2013 [sic, 2012]”. This may be an attempt to state the argument (also raised in Grounds Nos 3 and 4) that whether the shoulders were injured in the incident was a matter for an AMS, rather than the Arbitrator. However, this would be inconsistent with Mr Vaughan’s further submissions on Ground No 1, which go on to state that when the evidence is considered in its entirety, it is evident that Mr Vaughan sustained an injury to his shoulders. The issue of the Arbitrator’s jurisdiction to deal with the issue of injury to the shoulders is dealt with in the consideration below, dealing with other grounds.
The submissions on Ground No 1 refer to various page numbers of the Application. These references are to the pages at which Mr Vaughan’s statement, the employee incident notification form dated 20 December 2012, and pieces of medical evidence relied on in Mr Vaughan’s case, appear. The submissions do not refer to specific aspects of those documents. The submissions assert that, when the evidence is considered in its entirety, it is evident that Mr Vaughan sustained injury to his shoulders. It is then asserted that “failure to decide accordingly constituted an error of law”[47].
[47] Mr Vaughan’s submissions at [8]-[10].
The Department’s Submissions
The Department’s submissions do not deal specifically with the competence of this ground of appeal. They do note that Mr Vaughan’s submissions “come back to the same central theme: the arbitrator did not accept that the appellant injured his shoulder/s on the day of the accident”. The Department submits that this “is not a proper ground of appeal”.[48] The Department argues that the factual finding, that the shoulders were not injured in the incident, involved a preference for contemporaneous evidence over Mr Vaughan’s more recent statement evidence, and the finding was logical and correct. It involved a credit finding which should not be disturbed.[49]
[48] Department’s submissions at [13].
[49] Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (Fox v Percy).
Consideration
Ground No 1, and the submissions in support of it, do not adequately identify a ground of appeal. Doing as well as one can, Ground No 1 appears to assert that the finding, that there was no injury to the shoulders in the incident, was against the weight of the evidence. The submissions on this ground do not seek to identify any specific error in fact finding. The pleading of this ground does not comply with Practice Direction No 6, which provides that the ‘Appeal Application’ must state:
“briefly, but specifically, the grounds relied on in support of the appeal. It is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence. The grounds of appeal must identify the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found.”
It is necessary that a ground of appeal “identify, in a meaningful way, what is alleged to be the error in the judgment in the court below”[50]. Ground No 1 fails to do this, it simply complains about the result. The ground and submissions do not identify appealable error.[51] The ground cannot succeed. To the extent to which the ground seeks to raise issues about the fact finding process, these are considered below in any event.
GROUND NO 2 – ERROR IN NOT FINDING A MECHANISM FOR INJURY
[50] Kowalski v Repatriation Commission [2011] FCAFC 43 at [21]. See also Icejade Pty Ltd t/as Ryan's Hotel v Summers [2012] NSWWCCPD 31at [21] and Preston v Randwick City Council [2012] NSWCA 178; 13 DDCR 342.
[51] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Whitely Muir), Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
Mr Vaughan’s submissions
Mr Vaughan submits that the “primary issue is the mechanism of injury”. He submits that Dr Mansfield said “the shoulder was injured”[52], and Dr English took “a full and detailed history”[53]. He submits the injury sustained by him “could not have occurred in any other way than as stated by [him]. The Arbitrator ought to have found accordingly.” He submits that it was “an error of law in failing to determine that the injury occurred as stated”.[54]
[52] Decision at [43].
[53] Decision at [68].
[54] Mr Vaughan’s submissions at [12]-[13].
The Department’s submissions
The Department submits Mr Vaughan “seems to suggest that the pathology could only be consistent with a traumatic injury”. This does not take account of Dr Breit and Dr Sharwood, who “both opine that the pathology is consistent with an underlying condition”. The Arbitrator found the “contemporaneous evidence to be particularly persuasive”. He preferred it to Mr Vaughan’s lay evidence, including that given to doctors. The rejection of Mr Vaughan’s factual evidence involved “a finding specific to credit”, which was open. Mr Vaughan has not identified any criteria for an appellate court to intervene in this regard. The preference for contemporaneous evidence was logical and consistent.[55] The Department submits that the value of contemporaneous evidence has repeatedly been endorsed by the courts, citing Onassis v Vergottis [56] and Watson v Foxman[57]. The Arbitrator “carefully weighed up the inconsistencies in the evidence and preferred the earlier records. He was entitled to do so.”[58]
[55] The Department’s submissions at [19]-[23].
[56] (1968) 2 Lloyds Report 403 at 431.
[57] (1995) 49 NSWLR 315 at 319.
[58] The Department’s submissions at [22].
The Department also submits that Mr Vaughan’s reliance on the “mechanism of injury” is “misplaced”. It submits the Arbitrator “was unable to accept [Mr Vaughan’s] changing version of events over the months/years”. Dr Breit’s analysis was consistent with treatment at the time, which he considered “more consistent with a bicep[s] injury, as opposed to a shoulder/s injury”.[59] Mr Vaughan’s medical case was based on the histories and assumptions he gave. The Arbitrator was critical of the histories and assumptions, and the lack of treating medical evidence, as he was entitled to be. It was “all but a certainty” that Mr Vaughan’s medical case would be rejected, given the histories and assumptions on which it was based.[60]
Consideration
[59] The Department’s submissions at [24]-[25].
[60] The Department’s submissions at [26].
The argument that the Arbitrator erred in law in not accepting Mr Vaughan’s case on injury
Mr Vaughan’s submissions on this ground may reflect confusion regarding the concepts of ‘injury’ within the meaning of s 4 of the 1987 Act, and an injurious event.
In Wyong Shire Council v Paterson[61] Giles JA (Hodgson JA and Brownie AJA agreeing) said:
“In general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury.”[62]
[61] [2005] NSWCA 74 (Paterson).
[62] Paterson at [38].
In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[63] Emmett JA said:
“It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act.”[64]
[63] [2014] NSWCA 264; 13 DDCR 156 (Bindah).
[64] Bindah at [111].
In Jaffarie v Quality Castings Pty Ltd[65]Roche DP, after referring to Paterson, said:
“In other words, an ‘incident’ (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant ‘injury’ in s 4 is the pathology that has arisen out of or in the course of the employment. As explained by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’.[66]
[65] [2014] NSWWCCPD 79 (Jaffarie). Jaffarie was reversed in the Court of Appeal, but on a different issue.
[66] Jaffarie at [253].
In the same decision Roche DP said:
“It follows that, since ‘the nature of the injury’ (or the ‘condition’ or ‘aetiology of the condition’) is not a matter on which an assessment in a MAC is conclusively presumed to be correct, the opinions of an AMS on such matters do not bind the Commission.”[67]
And:
“… ‘the nature of the injury’ is a matter for the Commission to determine. This is consistent with Emmett JA’s statement at [111] [in Bindah] that it is for the Commission ‘to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act’ and his Honour’s later statement (at [118]) that only ‘certain matters of causation’ (emphasis added) are within the exclusive jurisdiction of an AMS.”[68]
[67] Jaffarie at [256].
[68] Jaffarie at [257], emphasis in the decision in Jaffarie.
Favetti Bricklaying Pty Limited v Benedek[69]was a matter in which an employer conceded injury to the worker’s lumbar spine, but disputed whether the worker’s thoracic spine was also injured in the relevant incident. The worker sought assessment of permanent impairment by an AMS, in respect of both the lumbar spine and the thoracic spine, for the purposes of satisfying the threshold in s 151H of the 1987 Act. Justice Bellew held that s 321(4)(a) of the 1998 Act prevented referral to an AMS in the circumstances, as the ‘liability’ issue regarding injury to the thoracic spine had not been determined by the Commission. His Honour said:
“Under s. 319 of the WIMA, the ‘medical dispute” in the present case is a dispute concerning the degree of permanent impairment of the first defendant. Pursuant to s. 321(4)(a), the Registrar has no power to refer the matter for an assessment by an AMS where liability is in issue and has not been determined by the Commission. That necessarily presupposes that the Commission has the jurisdiction to resolve the issue of liability prior to the matter being referred to an AMS. The AMS, in turn, is called upon to assess the level of permanent impairment for the injury for which liability has been determined.” [70]
[69] [2017] NSWSC 417 (Favetti Bricklaying).
[70] Favetti Bricklaying at [89].
Although the circumstances of the injurious event were relatively uncontroversial, there was a clear issue between the parties, raised in the s 74 notice, regarding whether Mr Vaughan suffered injury to the shoulders as alleged. This was a ‘liability’ issue which required determination by the Commission, before the matter could be referred to an AMS for assessment of the degree of permanent impairment, in compliance with s 321(4)(a) of the 1998 Act.
Mr Vaughan submits that the injury he sustained could not, on the evidence, have been sustained in any way other than as he stated. This submission must relate to the alleged injury to the shoulders, as injury to the right biceps was conceded. The submission appears to be that the Arbitrator’s finding, on injury to the shoulders, was not open to him on the evidence. This is not correct. Dr Breit was of the opinion that there was “some biceps strain as a result of his injury”, but the “other pathology for which he has had surgery is not in my opinion work related”.[71] Dr Sharwood described Mr Vaughan as suffering from “degenerative rotator cuff disease and subacromial bursitis”, although his views were less clear, going to whether, against this background, there could have been some form of injury to the shoulders on 13 November 2012. In any event, it being in issue, Mr Vaughan bore the onus of establishing the alleged injury to the shoulders.
[71] Reply at [9].
On the basis of Dr Breit’s views, there was an issue which required resolution, regarding the alleged injury to the shoulders. It was not simply a contest between medical opinions. There were issues about whether the shoulders were injured, based on the content and timing of complaints, and medical histories, which were addressed in the parties’ submissions and in the Arbitrator’s reasons. For reasons given above, this issue was within the Commission’s jurisdiction, and required resolution before the matter could be referred to an AMS pursuant to s 321 of the 1998 Act. Mr Vaughan’s argument that the Arbitrator was obliged, on the evidence, to accept his case on injury to the shoulders, is untenable.
The mechanism of injury
Ground No 2 asserts that the Arbitrator erred in failing to find a mechanism for injury. Mr Vaughan’s submits that this finding should have been of injury as stated by Mr Vaughan. Mr Vaughan’s statement dated 24 April 2017 described the incident:
“5. I confirm that on that day I was attempting to remove from the top of a shelf a precut metal sheet which was required for a manual arts class. As I attempted to remove the sheet from on top of the shelf the shelf collapsed and began to fall on top of me.
6. I was concerned that these sheets would fall and injure a student and as such I attempted to save the sheets from falling. As such I put out my arms to prevent them from falling, and it [sic] fell to a kneeling position on the floor.
7. In doing so I felt pain in my shoulders and arms.”
The Arbitrator quoted this version of what happened.[72] The Arbitrator referred to various histories from Mr Vaughan to treating doctors.[73] He referred to histories recorded by Drs Fraser, Mansfield, Sharwood, English and Breit, dealing with the shoulder symptoms experienced by Mr Vaughan at the time of the incident. Dr Mansfield had a history of “quite significant pain in both shoulders immediately”. Dr English had a history that although Mr Vaughan felt his shoulders “give”, there was “no immediate pain”. Dr Breit recorded Mr Vaughan’s history that he felt something in both arms, pointing to the biceps, reported it, and did not think anything of it, although it became more painful as the days wore on.[74]
[72] Decision at [12].
[73] Decision at [103]-[109].
[74] Decision at [110]-[111].
The Arbitrator described Dr English as having “confused the early history”. He said that Dr English assumed (incorrectly) that Mr Vaughan saw a general practitioner “within a few days of the incident”, and additionally there was no contemporaneous support for Dr English’s understanding of “increasing pain in the shoulders in the days following the incident”.[75]
[75] Decision at [112]-[113].
The Arbitrator referred to the MRI scan of the right shoulder performed on 16 August 2013. The radiologist, Dr Chew, described “no evidence of a tear”. Dr Mansfield said he was satisfied the scan showed a “deep partial thickness tear of the supraspinatus”. On this basis, the Arbitrator said it was difficult to comprehend Dr Mansfield’s assertions “as to the shortcomings of MR imaging”.[76]
[76] Decision at [116]-[118].
The Arbitrator dealt with the left shoulder. Dr Mansfield said the pathology on the left side was the same as the right, and caused at the same time, “hence the requirement for his surgery”. Yet the evidence “did not demonstrate any treatment for the left shoulder until May 2013”, and there was “no support for the later claim” that the left shoulder was injured on 13 November 2012. The Arbitrator said that “the first complaint regarding the left shoulder was not made until 4 May 2013, to Dr Relativo”. The history given was “two to three weeks pain in the left shoulder, with the entry ‘nil trauma noted’.”[77] The Arbitrator described Dr Mansfield’s opinion on the left shoulder as an “ipse dixit, and based upon an incorrect history”.[78]
[77] Decision at [108].
[78] Decision at [118].
The Arbitrator said that he preferred the opinion of Dr Breit. He noted Dr Breit’s reference to Mr Silcock’s report dated 29 August 2014, with Dr Breit saying that the treatment of physiotherapy and exercise physiology there referred to was inappropriate for rotator cuff impingement, but appropriate for “an effusion of the right biceps”. He noted Dr Breit’s opinion that this diagnosis was “consistent with the first history of injury”.[79]
[79] Decision at [114].
The Arbitrator’s preference for the evidence of Dr Breit, and criticism of inconsistencies he identified in the lay and clinical material, led to his conclusion that Mr Vaughan had failed to discharge his onus of proving injury to the shoulders.[80] The Arbitrator gave reasons for why he reached this conclusion.
[80] Decision at [122].
Mr Vaughan challenges the Arbitrator’s factual findings. In Raulston, Roche DP applied Whiteley Muir (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[81]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[82]
[81] [1996] HCA 140; 140 ALR 227.
[82] Raulston at [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[83] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[84]:
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.” [85]
Mr Vaughan’s submissions dealing with Ground No 2 do not address whether the Arbitrator’s approach involved error, on the basis of the principles in Raulston. They simply refer to two doctors who supported Mr Vaughan’s case, and state that the injury could not have occurred in any way other than that stated by Mr Vaughan. This fails to acknowledge the evidence, particularly from Dr Breit, to the contrary, and the historical inconsistencies on which the Arbitrator relied. Mr Vaughan’s submissions assert that it was legal error for the Arbitrator not to accept Mr Vaughan’s case on ‘injury’. Mr Vaughan carried an onus to establish the disputed injuries to the shoulders. The Arbitrator gave reasons for why he did not accept Mr Vaughan’s case on ‘injury’, and why he preferred the competing medical opinion of Dr Breit. The ground and supporting submissions do not identify appealable error. Ground No 2 cannot succeed.
GROUND NO 3 – ALLEGED JURISDICTIONAL ERROR
Mr Vaughan’s submissions
Mr Vaughan’s submissions state:
“Arbitrator Wynyard performed the functions of an Approved Medical Specialist, he did so contrary to law and thus committed an error of law. The only function required of the Arbitrator was to determine whether there was an injury. Considering the evidence in totality, the Arbitrator could not have found otherwise, had he properly exercised his statutory function. The Appeal ought to accordingly be allowed and the matter ought to be referred to an Approved Medical Specialist.”[86]
[86] Mr Vaughan’s submissions at [19].
Dealing with the respective functions of Arbitrators and AMSs in the bifurcated system, Mr Vaughan submits:
“It is clear that an injury did occur to the Appellant’s upper extremities on 13 November 2012. Cases such as Kirkman[87] and Jaffarie[88] point to the finding of injury needing to be to a body system or part, or of a general finding as to injury depending on the circumstances of the case. It is for an Approved Medical Specialist to decide the impairment that flows. The biceps and shoulder are proximate on the body and the Approved Medical Specialist can decide if the injury described would include or exclude an injury to the shoulders on the histories in the medical reports and his clinical examination of the Appellant.”[89]
[87] Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104 (Kirkman).
[89] Mr Vaughan’s submissions at [17].
Mr Vaughan also submits:
“It is not the Arbitrator’s decision to resolve a medical dispute between two doctors, in this case, that disagree over the relevance of imaging … The surgical operation showed the true nature of [Mr Vaughan’s] pathology and it is Dr Breit, on learning that pathology that needs to explain why he prefers findings on MRI over findings on operation.”[90]
[90] Mr Vaughan’s submissions at [14].
It is submitted that Dr Breit engaged in “character assassination” of another doctor’s clinical opinion, without explaining why he did not accept the findings, and that the “findings show evidence of a shoulder injury that could have been caused at the time of injury”.[91]
[91] Mr Vaughan’s submissions at [15].
Mr Vaughan submits that the Arbitrator misdirected himself in referring to Mr Vaughan’s post-injury employment. Mr Vaughan said in his last statement that he had not injured himself “in any other employment after the accident”. In any event it was a matter for an AMS to discount the effects of “impairment caused by other incidents or factors”[92].
[92] Mr Vaughan’s submissions at [16].
The Department’s submissions
The Department identifies Mr Vaughan’s submission as being that “all the arbitrator had to do was find an injury and refer the matter to an AMS”[93] (emphasis in original). The Department submits the Arbitrator correctly identified his task as ascertaining “whether there was an injury to the shoulders, arising out of the incident”. The Department refers to Bindah and Belokoski. It was necessary that the Arbitrator decide the ‘liability’ issue, being whether the shoulders were injured in the incident.
[93] Mr Vaughan’s submissions at [15].
In doing this, the Arbitrator preferred the contemporaneous evidence to Mr Vaughan’s lay evidence. The Department submits that this involved a ‘credit’ finding which should not be interfered with on appeal, citing Fox v Percy.
Consideration
Ground No 3 effectively raises two issues on appeal. One goes to whether it was open to the Arbitrator to engage in the fact finding task that flowed from the s 74 notice, of determining whether Mr Vaughan suffered the alleged injuries to the shoulders, or only the injury to the right biceps which was conceded. The other goes to the acceptability of Dr Breit’s evidence, whether there was error in the Arbitrator’s preference for Dr Breit’s opinion, and whether the reference to Mr Vaughan’s employment history after 13 November 2012 involved error.
For reasons given above, the task of determining whether Mr Vaughan suffered the disputed injuries to his shoulders in the incident was one within the Commission’s jurisdiction, and was a ‘liability’ issue which required determination before the matter could be referred to an AMS pursuant to s 321 of the 1998 Act.
The description in Mr Vaughan’s submissions, of the disagreement between Dr Breit and Dr Mansfield about imaging, as a ‘medical dispute’ which it was “not the Arbitrator’s decision to resolve”, is misleading. The term ‘medical dispute’ is defined in s 319 of the 1998 Act. An issue between expert witnesses about the reliability of MRIs does not constitute a ‘medical dispute’ within the meaning of s 319. Furthermore, it is not a matter on which the assessment in a MAC is “conclusively presumed to be correct” pursuant to s 326(1) of the 1998 Act. The submission that it was “not the Arbitrator’s decision” to resolve a ‘medical dispute’ about imaging, is misconceived and wrong.
Mr Vaughan submits that, having regard to the findings on operation, Dr Breit needed to explain why he preferred “findings on MRI over findings on operation”. Those findings showed “evidence of a shoulder injury that could have been caused at the time of injury”.[94] This submission misses the point. Dr Breit accepted that Mr Vaughan, in addition to injury to his biceps, had “other pathology for which he has had surgery”. However, Dr Breit considered that pathology was not work related, and did not accept that Mr Vaughan had suffered injury to his shoulders in the incident relied upon.[95]
[94] Mr Vaughan’s submissions at [14]-[15].
[95] Reply at p 9.
Mr Vaughan’s submissions, dealing with the Arbitrator’s reference to his post-injury employment, are also misconceived. Mr Vaughan seeks to approach this topic on the basis that its significance is restricted to the level of permanent impairment resulting from the alleged injuries to the shoulders, and whether such impairment results in part from subsequent events.
The Arbitrator referred to this topic in the context of considering the adequacy of Mr Vaughan’s evidence, going to whether he injured his shoulders as alleged. He referred to the lapse of time between the date of the incident and the statement (a period of about 4½ years), and said that he had to consider whether Mr Vaughan had “inadvertently reconstructed events”. He then said that “large parts of [Mr Vaughan’s] history were not addressed”, referring specifically to the lack of an account of the “progress of his condition” and of the “nature of the work he was doing between 13 November 2012 and the date of his statement”.[96] Read in context, these parts of the Arbitrator’s reasons went, at least in part, to the adequacy of the lay evidence supporting Mr Vaughan’s case on ‘injury’ to the shoulders. The submission that the Arbitrator erred in referring to the lack of detail of Mr Vaughan’s condition after the incident, including his employment activities from time to time, should be rejected. Such evidence was relevant to the acceptability of Mr Vaughan’s case on whether he sustained the alleged injuries to his shoulders. It was one of the factors referred to by the Arbitrator, in concluding that Mr Vaughan had not discharged his onus.
[96] Decision at [97]-[99].
Mr Vaughan submits that the Arbitrator erred as regards the importance of the post-injury employment. The weight of evidence is essentially a matter for the first instance decision maker. In Shellharbour City Council v Rhiannon Rigby[97] Beazley JA (Ipp JA agreeing, and Basten JA agreeing subject to certain remarks) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”
[97] [2006] NSWCA 308 (Rigby) at [144].
The Arbitrator’s consideration of this aspect of the evidence does not involve error.
Ground No 3 cannot succeed.
GROUND NO 4 – THE MEDICAL CONFLICT
This ground alleges that the Arbitrator “misdirected himself” regarding the medical conflict between Drs Mansfield, English and Breit.
Mr Vaughan’s submissions
Mr Vaughan submits that the “incident form”, while describing a biceps injury, “also notes an injury to the shoulders”.[98] He submits that the Arbitrator placed “undue weight on the proposition advanced by Dr Breit that only the ‘biceps’ were injured”.
[98] Mr Vaughan’s submissions at [20].
The submissions lodged on Mr Vaughan’s behalf dealing with this ground consist largely of strongly expressed criticism of Dr Breit. The doctor is accused of “acting as an advocate for the party retaining him, not as an independent medical specialist”. His opinion is said to be “… marred by controversy and most likely acceptance of a contrived analysis of injury and treatment provided”. It is submitted that “the Arbitrator by default has endorsed this flawed opinion”. Dr Breit’s opinion is said to be “… coloured by his general opposition to [Mr Vaughan’s] case as is evidenced by his treatment of Dr Mansfield’s evidence”.[99]
[99] Mr Vaughan’s submissions at [21]-[22].
Dr Breit’s initial reports (8 April 2015 and 22 May 2015) followed file reviews at the request of the Department’s insurer. In the earlier of these, Dr Breit said “there is really inadequate information for me to be able to indicate whether or not the surgery related to his employment”. He said that he needed to review Mr Vaughan and the records of his general practitioners. He expressed the same sentiments in the second of his reports. Mr Vaughan’s submissions state that Dr Breit did “not make any attempt to obtain further information or provide recommendation on investigations”. It is submitted that Dr Breit “gives a general sweeping statement without consideration of the medical evidence presented and/or not provided”. Mr Vaughan submits:
“Dr Breit even states in his own report dated 17 August 2016 on page 5 that he has not been provided with either a detailed operative report or arthroscopic photos.”[100]
[100] Mr Vaughan’s submissions at [21].
The submissions ultimately identify the fashion in which the Arbitrator allegedly misdirected himself, in dealing with the conflict in the medical evidence, as being that it was “a task that ought to have been left to, and performed by, an Approved Medical Specialist”. It is submitted the appeal should be allowed, and “the matter referred to an Approved Medical Specialist to deal with the medical conflict that has arisen.”[101]
[101] Mr Vaughan’s submissions at [23]-[24].
The Department’s submissions
The Department submits that the Arbitrator was required to “ascertain whether there was an injury to the shoulders, arising out of the incident”, he “had to determine the liability dispute”.
The Department’s submissions dealing with the approach taken by the Arbitrator to the medical issue are summarised under Ground No 2 above.
Consideration
For reasons given above, I accept the Department’s submission that the Arbitrator had the power, and was required, to determine the ‘liability’ issue of whether there was injury to the shoulders. It was open to the Arbitrator to accept the opinion of Dr Breit, and he gave reasons for doing so, which are not asserted to be inadequate.
Mr Vaughan argues that Dr Breit, in his first two reports, acknowledged that he had “inadequate” information. Those were file reviews, carried out without an examination of Mr Vaughan. In the earlier of these, 8 April 2015, Dr Breit indicated that Mr Vaughan’s physiotherapy regime had not been appropriate management for rotator cuff impingement.[102] Dr Breit subsequently examined Mr Vaughan and reported on 17 August 2016. He took a detailed description of the mechanism of injury, which he thought consistent with a biceps strain rather than rotator cuff pathology. Dr Breit did comment on the absence of “a detailed operative report or arthroscopic photos”, but did so in the context of stating these were not available to support Dr Mansfield’s opinion. Dr Breit gave reasons for his view that Mr Vaughan’s injury consisted only of a biceps strain. It was open to the Arbitrator to accept Dr Breit’s opinion, as he did.
[102] Reply at p 2.
Mr Vaughan submits that Dr Breit acted as an “advocate for the party retaining him”. The submissions include various pejorative references to Dr Breit.[103] The submissions do not include any specific analysis of Dr Breit’s reports, to support the allegation that he was not independent and acted as an advocate for the Department. Dr Breit’s reports gave a reasoned analysis, referring to the history of symptoms at the time of the incident, the history he obtained of the mechanics of injury, and the nature of the treatment administered to Mr Vaughan after the incident, in support of his views. It was open to the Arbitrator to accept that evidence.
[103] Mr Vaughan’s submissions at [21]-[22].
Mr Vaughan’s submissions refer to the “incident form”. There is an “Employee Incident or injury notification form” dated 20 December 2012, apparently filled out by Ian Skilton, DP (it may be inferred Deputy Principal). It described the injury as “overburdened right biceps while loading metal sheets”, and gave the body part injured as “right bicep”. It said the incident was reported on the date it occurred, 13 November 2012.[104] There is also a Departmental document, an “Incident Report Form”, which describes the incident of 13 November 2012 as entered and reported on 8 January 2013. It also gives the “Description of Incident/Hazard” as “Overburdened R bicep while loading metal sheets”. That document gives the location of injury as “Shoulders and Arms”, and the side of the body as “Right”, the mechanism being “Repetitive movement”.[105] These documents were not completely consistent. The first in time refers only to the biceps, the later of the two refers to the right shoulder and arm, but also refers to a mechanism of injury which is inconsistent with Mr Vaughan’s description of the incident.
[104] Application at pp 40-41.
[105] Reply at pp 96-98.
The Arbitrator referred to both of these documents.[106] He described the earlier of the documents as having “considerable probative weight”, and said that it “cast considerable doubt” on Mr Vaughan’s later recollection and the history on which Dr Mansfield relied.[107] The Arbitrator referred also to the later of these documents, saying that it provided Mr Vaughan with “a measure of support”, although was inconsistent with Mr Vaughan’s version as to the cause. He referred to possible inferences, such as the right shoulder symptoms developing “since the initial incident”, although this was inconsistent with Mr Vaughan’s case, or that such symptoms were “independent from the injury to the biceps”, having regard to the reference to “repetitive movement”.[108]
[106] Decision at [13] and [16].
[107] Decision at [103].
[108] Decision at [106].
Mr Vaughan’s submission that the Arbitrator placed undue weight on Dr Breit’s opinion, that only the biceps were injured, in light of the “incident form”, cannot be accepted. The Arbitrator referred to both of the relevant incident report forms in detail. That dated 20 December 2012 was inconsistent with the allegation of injury to the shoulders (as opposed to the biceps), as the Arbitrator recognised. The Arbitrator’s observation that it cast considerable doubt on Mr Vaughan’s later recollection was available. The document dated 8 January 2013 gave Mr Vaughan a measure of support, as the Arbitrator recognised, whilst being in some other respects inconsistent with Mr Vaughan’s case on the mechanism of injury, and injury to the left shoulder. Assessing the weight to be ascribed to Dr Breit’s evidence on the nature of the injury was a matter for the Arbitrator.[109] The view he formed was additionally supported by the document dated 20 December 2012. The Arbitrator did not err in accepting Dr Breit’s views on this issue.
[109] Rigby at [144].
Ground No 4 cannot succeed.
GROUND NO 5 – CONTEMPORANEOUS EVIDENCE OF INJURY
This ground asserts that there was factual error, in the Arbitrator’s finding that there was no contemporaneous evidence as to injury.
Mr Vaughan’s submissions
Mr Vaughan’s submissions refer to the report of Dr Connolly, radiologist, dated 7 January 2013, which refer to an x-ray and ultrasound of the right shoulder. The report was directed to Dr Sasitharan, one of Mr Vaughan’s general practitioners. It is submitted that the report “must have resulted from a complaint to Dr Sasitharan”. This would put the chronicled complaint “within 6 to 8 weeks of the accident”. Mr Vaughan submits that is consistent with his statement, which said that the “pain came on gradually”.
It is submitted that it is “quite the norm” for treating doctors, soon after an accident, to give a generalised description of pain in body parts. It is said that “[t]he Court of Appeal has on many occasions said treating notes should not be relied upon as being entirely accurate”. Mr Vaughan’s submissions say “[i]ronically, even the Arbitrator refers to the danger of accepting clinical notes at face value or unquestioningly.” He submits that Dr Breit’s history of Mr Vaughan experiencing “initial pain” in the biceps fails to deal with the onset of shoulder pain over the next six weeks, resulting in the ultrasound, reported on 7 January 2013.
The Department’s submissions
The Department submits the Arbitrator preferred the more contemporaneous evidence, in preference to Mr Vaughan’s lay evidence. This preference was logical and consistent. There was “nothing remarkable, or erroneous, about the reasoning process”. The Arbitrator “weighed up the inconsistencies in the evidence and preferred the earlier records”. The Department submits that the contemporaneous evidence did not support Mr Vaughan’s case”.[110]
[110] Department’s submissions at [18]-[26].
Consideration
Contrary to how this ground is framed, the Arbitrator did not proceed on the basis that there was no contemporaneous evidence as to injury. He referred to the injury notification form dated 20 December 2012, as the “first contemporaneous document concerning the incident”. He described it as being made on the date of the incident, although this is probably a reference to its description of the report of injury being made on the date of the incident. He referred to the incident report form dated 8 January 2013. The Arbitrator’s reasoning involved a consideration of the available material from treating medical practitioners, including the report of Dr Connolly, the radiologist, dated 7 January 2013, referred to in Mr Vaughan’s submissions on this appeal.[111] The Arbitrator referred in detail to the treating medical material placed before him. He referred to the absence of material, in the evidence placed before him, from a number of treating doctors.[112] Against this background, Mr Vaughan’s submissions state, inaccurately, that the “Arbitrator committed an error of fact by finding there was no contemporaneous evidence as to injury”. This submission is baseless.
[111] Decision at [103]-[109].
[112] Decision at [102] and [109].
The Arbitrator properly referred to a line of appellate authority[113], including Mason v Demasi[114], dealing with clinical material from doctors. He also quoted a passage from Qannadian v Bartter Enterprises Pty Limited[115], in which I said:
“The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”[116]
[113] Decision at [100]-[101].
[114] [2009] NSWCA 227.
[115] [2016] NSWWCCPD 50 (Qannadian).
[116] Qannadian at [37].
Mr Vaughan’s submissions describe the Arbitrator’s reference to this line of authority as ironic. This comment, in the circumstances, was inappropriate and should not have been made. Mr Vaughan does not argue that the Arbitrator’s reference to this line of authority was inaccurate or a wrong statement of principle. There is no specific argument put that the Arbitrator failed to apply the line of authority or applied it wrongly.
Mr Vaughan’s submissions say that it is not unusual for treating doctors to record generalised descriptions of pain soon after an accident. This is a general statement, unsupported by evidence, which does not assist. How specifically complaints are recorded will likely vary depending on multiple factors, including the individual doctor involved, the circumstances in which the doctor records the complaints, and how specific the complaints are.
Mr Vaughan submits that there was “contemporaneous evidence as to injury”. He refers to a radiological report of Dr Connolly dated 7 January 2013, directed to Dr Sasitharam, referring to an x-ray and ultrasound of the right shoulder. He submits this is consistent with complaint to Dr Sasitharam involving the right shoulder, within 6 to 8 weeks of the date of accident. 7 January 2013 is one day inside 8 weeks after the date of the incident. It is possible that the investigations were associated with right shoulder complaints, although the Arbitrator did not draw this specific inference. Dealing with the referral to Dr Connolly for radiological investigations, the Arbitrator said:
“The evidence does establish however, as I have indicated, that Dr Sasitharam did refer the applicant for an x-ray and ultrasound of his right shoulder, which occurred on 7 January 2013. Although the results were of a normal examination with the exception of some subacromial bursitis, the referral does indicate that Dr Sasitharam was concerned at least to exclude right shoulder pathology at that time. It may be that he was simply being cautious, or it may be that there was something in his examination that alerted him to the possibility that the right shoulder was involved. Accordingly some caution has to be exercised about accepting the hearsay evidence [in the s 74 notice dated 20 September 2016] that the applicant only complained to Dr Sasitharam about his right biceps.”[117]
[117] Decision at [105].
The Arbitrator referred to the possibility that “some measure of shoulder pain had developed since the initial incident”. He noted however that “this is not the version on which [Mr Vaughan] relies”. Mr Vaughan’s statement described the incident and said “In doing so I felt pain in my shoulders and arms”, and that this “pain increased over the coming days”.[118] That is, there was immediate pain in the shoulders and arms, which increased over a matter of days. Dr Mansfield recorded a history of “quite significant pain in both shoulders immediately”.[119] Dr Fraser recorded a history that Mr Vaughan, at the time of the incident, “felt a tearing in his shoulders”.[120] Dr Sharwood recorded a history that, at the time of the incident, “it caused traction to his shoulders and he experienced pain”.[121] A significant number of the medical histories, and Mr Vaughan’s statement, are inconsistent with Mr Vaughan’s submissions on appeal, that the “pain came on gradually”. Dr English recorded that at the time of the incident Mr Vaughan “… felt both his shoulders give. He had no immediate pain … Over the next few days he had increasing pain in both shoulders.”[122] This, however, is inconsistent with the statement on which Mr Vaughan relied in the proceedings.
[118] Application at p 38.
[119] Application at p 20.
[120] Application at p 34.
[121] Reply at p 38.
[122] Application at p 2.
The Arbitrator accepted that there were concerns as to the right shoulder, given a cortisone injection of 13 January 2013 and right shoulder complaints to Dr Sundar on 7 February 2013.[123] It is apparent that the Arbitrator’s reasoning dealt with the radiological investigations carried out on 7 January 2013, and complaints to Dr Connolly and Dr Sundar shortly after that.
[123] Decision at [107].
Mr Vaughan submits Dr Breit’s opinion does not deal with a history of an “onset of shoulder pain over the next six weeks” after the incident.
The earliest report from Dr Connolly, on which Mr Vaughan submits, is that dated 7 January 2013, about 8 weeks after the incident. The two report of injury documents are referred to at [125]-[126] above. The earlier in time (20 December 2012) refers to a right biceps injury, but not injury to the shoulders. The second in time (8 January 2013) includes reference to the shoulders and arms (probably restricted to the right side) but with an inconsistent cause (“Repetitive movement”). This is dated one day after Dr Connolly’s radiological report. The documentation does not place chronicled shoulder complaints from within 6 weeks of the incident, but at about 8 weeks after the incident.
Dr Breit recorded the following history from Mr Vaughan, dealing with these matters:
“He described ‘something’ in both arms, pointing to the biceps. The matter was reported and he did not think anything of it, but as the days wore on it became more painful and he saw his GP who prescribed some Panadol and sent him for investigations. They could not be readily performed in the Hunter Valley without a long wait, so he came to Sydney and around that time there was also a right shoulder steroid injection which he did not feel improved the situation. There was no physiotherapy.”[124]
[124] Reply at p 6.
Dr Breit expressed the following opinion:
“From the mechanism of injury he would have had a biceps strain because he was trying to support a weight down low in a slightly flexed position. That is he was taking the weight through bent forearms which does not lead to rotator cuff pathology. Once again the MRI does not indicate any damage to biceps, yet he has had biceps tenodesis (failed), the episode could certainly have led to some biceps strain, but nothing more. We are now in a situation where there has been significant surgery to both shoulders repairing the rotator cuffs and doing a biceps tenodesis as well as something to the acromioclavicular joint.”
And:
“I would readily indicate this gentleman had some biceps strain as a result of his injury, but note that there was no associated pathology reported on the MRI, a sensitive investigation. The other pathology for which he has had surgery is not in my opinion work related.”[125]
[125] Reply at p 9.
Mr Vaughan submits Dr Breit’s history did not take account of the fact that there was an “onset of shoulder pain over the next six weeks” after the incident. Dr Breit set out the history he obtained in reasonable detail. As regards the location of Mr Vaughan’s symptoms, Dr Breit recorded a specific history that Mr Vaughan felt “‘something’ in both arms, pointing to the biceps”. He recorded that “as the days wore on it became more painful and he saw his GP” (emphasis added).[126] The reference to “it” can only, in context, be a reference to the biceps. This is also consistent with the earlier injury notification form dated 20 December 2012, which refers to injury to the biceps.
[126] Reply at p 6.
Dr Breit’s history is generally consistent with the factual scenario (a gradual onset of pain over about 6 to 8 weeks) on which Mr Vaughan bases this submission. It differs from Mr Vaughan’s case, to the extent that Dr Breit, based on the history which he took, and the description of the symptoms around the time of the incident, said the complaints were confined to the biceps, which he considered to be the relevant injury. The scenario of a gradual onset of symptoms is inconsistent with Mr Vaughan’s statement, and with a number of the other histories, including that of Dr Mansfield. There is no appealable error flowing from Dr Breit’s acceptance of symptoms, increasing “as the days wore on”, in the biceps. Dr Breit’s opinion was entitled to weight, and the Arbitrator was entitled to accept it, as he did. Mr Vaughan’s submissions based on an alleged deficiency in Dr Breit’s history cannot succeed.
It follows from the above that the way in which the Arbitrator dealt with the contemporaneous evidence was reasonably open to him, and does not demonstrate error consistent with the principles discussed in Whitely Muir and Raulston. Ground No 5 cannot succeed.
THE LEFT SHOULDER
Mr Vaughan’s entitlement to lump sum compensation is subject to the threshold in s 66(1) of the 1987 Act, that the degree of permanent impairment be “greater than 10%”. Mr Vaughan’s submissions on appeal deal to a significant extent with his claim in respect of the right shoulder, which was the subject of chronicled investigation and treatment from at least 8 January 2013, about 8 weeks after the incident relied on. The Arbitrator rejected Mr Vaughan’s case on injury in respect of both shoulders. Dealing with the left shoulder the Arbitrator said, consistently with the evidence:
“The first complaint regarding the left shoulder was not made until 4 May 2013, to Dr Relativo. The history given was of two to three weeks pain in the left shoulder, with the entry ‘nil trauma noted.’ It would follow that Dr Relativo did enquire as to the onset of the left shoulder pain, and the history is at odds with later accounts to other practitioners.”[127]
And:
“Dr Mansfield also said that the pathology on the left side was exactly the same, was caused at the same time, and ‘hence the requirement for his surgery.’ Those assertions regarding the left shoulder I find to be an ipse dixit, and based upon an incorrect history. The contemporaneous evidence lodged by [Mr Vaughan] did not demonstrate any treatment for the left shoulder until May 2013, and there is no support for the later claim by the applicant that he injured his left shoulder on 13 November 2012.”[128]
[127] Decision at [108].
[128] Decision at [118].
Those medical practitioners who supported Mr Vaughan’s claim for injury to the left shoulder did not do so, on a basis consistent with the history recorded by Dr Relativo. The Department submits, in respect of the left shoulder, that the Arbitrator “[c]learly… was entitled to enter an award for the [Department] (quite independently of any right shoulder).”[129] Mr Vaughan’s difficulties in establishing the disputed injury to the left shoulder, given the Arbitrator’s (available) acceptance of this apparently clear history, would appear to have been insuperable, whatever the result in relation to the right shoulder may have been. Mr Vaughan’s assessments of permanent impairment from Dr English, for the right upper extremity and scarring, total 10%. That is, they are not (in the absence of a found injury to the left shoulder) greater than 10%, and would be insufficient to support a claim for permanent impairment compensation pursuant to s 66(1).
[129] Department’s submissions at [29]-[30].
CONCLUSION
For the above reasons the appeal would not succeed on its merits, even if leave were granted under r 16.2(12) of the Rules.
DECISION
Mr Vaughan’s application to extend time pursuant to r 16.2(12) of the Rules is refused.
Michael Snell
Acting President
10 January 2018
- AGLC
- Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1
- Case
- [2018] NSWWCCPD 1
- Decision Date
CaseChat Overview and Summary
The court held that the application for an extension of time was not justified under rule 16.2(12) of the Workers Compensation Commission Rules 2011. It found that the applicant had not demonstrated any special circumstances that warranted an extension. The court emphasized the importance of adhering to the prescribed time limits for bringing an appeal and noted that any deviation could potentially prejudice the respondent. The court also clarified the roles of arbitrators and Approved Medical Specialists within the bifurcated system, affirming that each plays a distinct and essential function in the adjudication process. The alleged factual error raised by the applicant was found to be without merit, as the court concluded that there was no basis to interfere with the Commission's findings. As a result, the applicant's appeal was dismissed, and the orders made by the Commission remained in place.
Orders
Orders of the court
1. The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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