Wahidi v Northern Sydney Area Health Service Royal North Shore Hospital
[2008] NSWWCCPD 12
•31 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wahidi v Northern Sydney Area Health Service – Royal North Shore Hospital [2008] NSWWCCPD 12
APPELLANT: Sima Wahidi
RESPONDENT: Northern Sydney Area Health Services – Royal North Shore Hospital
INSURER:GIO General Limited
FILE NUMBER: WCC4313-07
DATE OF ARBITRATOR’S DECISION: 20 September 2007
DATE OF APPEAL DECISION: 31 January 2008
SUBJECT MATTER OF DECISION: Injury; whether injury to the left shoulder could be said to ‘result from’ the accepted injury to the right shoulder; sections 4 and 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Dostalek & Co
Respondent: TurksLegal
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 20
September 2007 is confirmed.
2.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 8 October 2007 Sima Wahidi (‘the Appellant/Ms Wahidi’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 20 September 2007.
The Respondent to the Appeal is Northern Sydney Area Health Services – Royal North Shore Hospital (‘the Respondent/RNSH).
The Appellant was born on 25 September 1963 in Afghanistan. She migrated to Australia in 1987.
The Appellant commenced employment with the Respondent in 1996 as a food services assistant working a 38 hour week. Her duties included pushing and pulling food trolleys.
The Appellant claims that in about March 2006 she developed pain in her right shoulder as a result of those duties which by May 2006 became severe as a consequence of which she ceased work on or about 29 May 2006. She was off work until September 2006 when she returned to ‘light duties’ four hours per day, five days per week, eventually progressing to fulltime selected duties. Those duties involved reception and clerical work.
Liability for the injury to the right shoulder was accepted by the Respondent’s insurer, GIO General Limited (GIO), and payments made during periods of incapacity.
On 14 June 2007, the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission seeking lump sum compensation pursuant to the provisions of sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In that Application, the Appellant described the date of injury as “08/03/06”. The date of notice of injury was described as “22/06/06”. The injury description was “left upper extremity and right upper extremity” and her description as to how the injury occurred was noted as “nature and condition [sic] of employment”.
In its Reply filed on 2 July 2007, the Respondent, inter alia, disputed that the Appellant had sustained any injury to her left arm or shoulder.
The parties attended a conciliation/arbitration hearing on 28 August 2007. No oral evidence was given, but both parties made submissions recorded in a transcript of that date.
Briefly, the Arbitrator found that the Appellant did not receive an injury to her left shoulder arising out of or in the course of her employment with the Respondent.
It is from this decision that the Appellant seeks leave to appeal.
On 15 November 2007, the Respondent filed a ‘Notice of Opposition to Appeal’. The Respondent submits that no errors were made by the Arbitrator and that her decision ought be confirmed.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 20 September 2007 records the Arbitrator’s determination as follows:
“1. The Applicant has not received an injury to her left shoulder arising
out of or in the course of her employment with the Respondent. Award in favour of the Respondent in relation to the claimed injury to the left shoulder.
2 I remit the matter to the Registry for referral to an ‘AMS’ for assessment of WPI for an injury to the right shoulder (right upper extremity) resulting from the nature and conditions of the Applicant’s employment with the Respondent with a deemed date of 22 June 2006, the date notice was given.
3 No orders as to costs.”
A ‘Statement of Reasons’ was attached to the Arbitrator’s ‘Certificate of Determination’.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal application was initially rejected based on an earlier ‘Certificate of Determination’ issued by the Arbitrator dated 3 September 2007. The Certificate was subsequently amended and issued on 20 September 2007 as a consequence of which I am satisfied that the appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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.
THE ISSUES IN DISPUTE
The Appellant submits that the Arbitrator erred in the following respects:
“1. The Arbitrator’s decision involves an error of law.
2.The Arbitrator misconceived the issue to be decided.
3.The issue to be decided was a sequela [sic] issue, being: whether the injury to the Applicant Worker’s left shoulder as claimed was a consequence of the Applicant’s original and accepted injury to her right shoulder due to additional strain following guarding or favouring of that injured shoulder.
4.The Arbitrator failed to properly determine an issue in dispute: whether the
sequelae of an accepted injury to the right shoulder involved left shoulder injury.
5.The Arbitrator erred in determining issues irrelevant to the dispute”.
THE REVIEW PROCESS
The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188, and in many subsequent decisions. I do not propose to reiterate those principles in detail. In short, the powers of a Presidential Member to revoke a decision pursuant to section 352(7) of the 1998 Act are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error, (See Allesch v Maunz (2000) 203CLR 172), and the error must be such that, but for it, different decision should have been made. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56). These principles must be considered in determining the matter before me
THE SUBMISSIONS, EVIDENCE AND FINDINGS
In summary, the Appellant submits that “the Arbitrator has misconceived and misunderstood the causation issue”.
In the Appellant’s submission, her claim was always to the effect that “… the sequelae of her right shoulder injury was such that as a consequence of guarding (and/or favouring) flowing from the right shoulder injury further injury has been sustained to her left shoulder.”
The Appellant submits that:
“The claim is that the cause of her left shoulder injury is not the nature and conditions of employment whilst performing post-right shoulder injury light duties, but rather the cause of the left shoulder injury is a direct consequence of the right shoulder injury itself and its sequelae.”
In the Appellant’s submission, the Arbitrator’s decision against the Appellant was based on the premise that the ‘nature and conditions’ of the Appellant’s employment was in some way causative of the injury to the left shoulder.
As stated earlier, there was no dispute between the parties that the Appellant sustained an injury to her right shoulder in about March 2006 and as a consequence, ceased work on 29 May 2006. Indeed as the Arbitrator noted at paragraph 26 of her ‘Statement of Reasons’:
“… There is common ground that there was an injury to the right shoulder in May [sic- March] 2006 and the Applicant felt pain in her left shoulder in March 2007.”
The Arbitrator’s findings and reasons on this issue are contained in paragraph 28 of the ‘Statement of Reasons’ as follows:
“28. In this matter I prefer the evidence of the Respondent for the following reasons:
(a) It is reasonable to accept that guarding of the left shoulder would have been evident at the time of the injury to the right shoulder as the Applicant had been in pain for at least two months leading up to her going off work. Applying Dr Ellis’ opinion that the injury resulted from the need to excessively use the left shoulder to accommodate or compensate for the right shoulder, I believe she would have experienced symptoms before March 2007.
(b)Between May and September 2006 the Applicant was not working so there was nothing happening that might have caused symptoms in the left shoulder or resulted in her having to compensate by excessively using the left shoulder.
(c) Similarly, when the Applicant returned to work she was engaged in light duties within her medical restrictions. Dr Ellis has not indicated any work performed during that time that was not suitable or might have resulted in her having to compensate by using her left shoulder more or excessively.
(d)Dr Ellis’ diagnosis of the right shoulder was based on radiological evidence but that is not the case for the left shoulder. His diagnosis appears to have been made on the basis of opinion. His findings of his examination of the Applicant do not appear to be consistent with that opinion. Relying on the relevant case law (Edmonds), Dr Ellis has not set out the reasoning for the basis of his opinion. This is essential in the absence of radiological findings.
(e) There is a significant difference of time in the appearance of symptoms of the two claimed injuries and no evidence to indicate that between the period May 2006 and March 2007, when symptoms began to appear in the left shoulder, the Applicant had to use her right shoulder in a way that would result in her having to compensate for any weakness by excessively using her left shoulder.
(f) I do not doubt that the Applicant has developed some symptoms in her left shoulder however there is no convincing evidence to support the claim that the Applicant received an injury arising out of or in the course of employment. Therefore employment with the Respondent was not a significant contributing factor to the injury.
(g)I therefore conclude that the symptoms in the left shoulder result from a constitutional condition.”
In the Appellant’s submission, these statements, particularly in paragraphs 28(b) and (c) indicate that:
“… the Arbitrator understood the Applicant’s claim to have been that the right [sic – left] shoulder injury was due to the nature and conditions of the Applicant’s light duty work from her return to work from October 2006”.
Whilst I accept that that is one interpretation of the Arbitrator’s reasoning, it is clear from paragraph 28(e) that the Arbitrator understood that the Appellant’s claim was based on the premise that excessive use of her left shoulder, consequent upon the right shoulder injury, was causative of the injury to that shoulder.
Section 4 of the 1987 Act defines injury as “… personal injury arising out of or in the course of employment …”.
Section 9A(1) of the same Act provides that “no compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
Section 65(1) of the 1987 Act provides: “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 …”
These issues were considered recently by me in XITMS Pty Limited v Castles [2007] NSWWCCPD 222 (‘Castles’). The nature of the claim was somewhat different to the present claim before me and involved consideration as to whether section 66 losses could be aggregated to reach the section 67 threshold.
In Castles, the worker sustained an injury to his right shoulder on 24 July 2003. He subsequently claimed that as a result of the nature and conditions of his employment between 24 July 2003 and March 2005 he suffered an injury to his left shoulder because he was “compensating for the injury to the right shoulder”. The question to consider was whether it could be said that the left shoulder injury was as a consequence of the right shoulder injury or a separate and discreet injury giving rise to two separate losses.
A number of authorities were referred to in Castles which I do not propose to recite here at length. In short, the concept of favouring one limb causing injury in another is a question of fact to be determined in the circumstances of a particular case.
In Bushby & Anor v Morris & Ors [1980] 1NSWLR 81, the Privy Council at page 87 noted as follows:
“‘It is well established in common law contexts that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently. If any authority be required for that proposition, it is sufficient to refer to Baker v Willoughby, particularly the speech of Lord Reed (1a) where it is to be observed also that he equiparated the legal view of causation in tort to that in the field of workmen’s compensation. Their Lordships are of the clear opinion that there is indeed no difference between the two, subject to the qualification that in a claim for workers’ compensation it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. The question of foreseeability does not arise. It is sufficient that the incapacity ‘results’ from the injury by a chain of legal causation unbroken by any novus actus interveniens’”.
A similar issue was considered by the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’).
In that case, the worker injured his left knee and back in May 1998. He subsequently began to favour his right leg and as a result suffered an overuse injury in or about March 1999. In proceedings before the former Compensation Court, he was awarded section 66 entitlements for loss of use of the right leg. On appeal, the Court of Appeal stated that: “The awards for the back and the right leg were the result of the same injury within s.67 and the worker was entitled to retain his award under that section: Sidiropoulos v Able Placements Pty Limited (1998) 16NSWCCR 123 approved”.
As Handley JA said in Dimovski:
“She [the trial judge] then found that ‘as a result of the further injury to his left leg’ the worker began to favour that leg and as a result developed systems in his right leg. This finding supported the award for the right leg. The Judge followed the majority decision of this court in Colliar v Bulley (2000) 19NSWCCR 302 …”
His Honour went on as follows (para 31):
“In s.67(1) the words ‘same injury’ do not refer to the pathology in the worker’s body, because the section permits the aggregation of two or more losses which result from the same injury and each loss will reflect its own pathology. The ‘same injury’ can only refer to injury in the sense of the injurious event, to borrow the language of Neilson CCJ in Lyons [para 27]. It is important to note, as Windeyer J said in the High Court that in the present enquiry ‘the court is concerned with genesis rather than revelation’. See Lyons at 428. In this case the injurious event occurred on 28 May during employment with the Appellant. The only question could be whether the injury to the right knee was ‘a result of this injury’”.
His Honour found that the findings by the trial Judge were supported by the evidence, and went on to state (para 34):
“The fact that nine or ten months intervened in this case before pathology became evident in the worker’s right leg does not exclude a finding of fact that it was as a result of the injury to the left. For the same reason, the intervening use by the worker of both legs, his conscious or unconscious decision to favour his left, and the pre-existing pathology in that leg do not, as a matter of law, invalidate her Honour’s finding that the pathology in the right leg was as a result of the frank injury to left on 28 May 1998.”
In Dimovski Handley JA quoted at length from the decision of the Court of Appeal in Kooragang Cement Pty Limited v Bates (1994) 35NSWLR 452 (‘Bates’). In that case, the widow of a deceased worker claimed compensation. In 1981 the worker had suffered a work related injury to his back which resulted in prolonged pain and other symptoms eventually leading to his death due to myocardial infarction. The trial judge found that death had resulted from the original injury and all its consequences.
The appeal was dismissed. The court held as follows:
“(1)The phrase ‘results from’ means ‘to arise as a consequence … to end or conclude in a specified manner’.
(2)Whether death or incapacity ‘results from’ a relevant work injury is a question of fact. The importation of notions of proximate cause, by the use of the phrase ‘results from’, is not now accepted. By the same token the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain and due regard must be paid to the statutory formula by asking the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is noted that the decision in Pickersgill was not followed.
Was the evidence in the present case sufficient to establish that any injury to the left arm was as a result of the injury to the right arm?
In a statement dated 25 May 2007 the Appellant detailed her work duties and the injury to her right shoulder and arm. In relation to the left arm she simply stated as follows:
“As far as my left arm is concerned I first noticed pain in my left arm from about March 2007. My right shoulder and arm pain has been continunous since May 2006.”
There was nothing in that statement to indicate that symptoms in the left arm occurred as a consequence of favouring that arm. Indeed, earlier in her statement, the Appellant stated:
“I am restricted in carrying out activities involving pushing and pulling and lifting because of restricted use of and pain in my right shoulder”.
That statement implies limited use of the arms generally.
That statement is also consistent with the history recorded by Dr Max Ellis in his report of 15 March 2007 where he noted:
“The heavy aspects of the housework at home, vacuuming, cleaning, now have to be done her husband …”
In that report, Dr Ellis opined as follows:
“In recent months the left shoulder has now become painful as a result of excessive use, which distresses her as her work will be threatened. The pain involves the right side of her neck and movements to the left are painful and cold weather aggravates the neck …”
On examination, Dr Ellis noted:
“Left shoulder joint movements were full in abduction and flexion, internal rotation was restricted to one quarter of the normal range”.
Dr Ellis diagnosed “… a traumatic capsulitis of the right shoulder, musculo-ligamentous contusion, aggravation degenerative change in her neck. As a result of excessive use of her left arm, similar problems are beginning in the left shoulder now in recent months.”
As the Arbitrator noted an ultrasonic scan of the right shoulder revealed partial thickness tear of the rotator cuff, whilst an MRI examination of the right shoulder in August 2006 revealed, as Dr Ellis noted, “… partial thickness tearing possibly with a full thickness tear involving the supraspinatus tendon which is affected also by inflammatory tendonitis.”
No radiological examinations have been carried out on the Appellant’s left arm or shoulder. Thus, it is difficult to accept Dr Ellis’ conclusion that “there is a traumatic captulitis of both shoulders particularly affecting the right …”
There is simply no evidence to support this diagnosis of the left shoulder. As the Arbitrator pointed out at paragraph 28(d) “… Dr Ellis has not set out the reasoning for the basis of his opinion. This is essential in the absence of radiological findings”.
The Arbitrator made reference to the Court of Appeal decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) where McColl JA confirmed with approval the statement of Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC34 at 39 to 40 that:
“… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
This statement was also considered by McColl JA in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the Judge refer to all the evidence, ‘where nothing exists but an assertion of facts on differentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P”.
The principles in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 (‘Makita’) are also relevant, summarised by Deputy President Roche in Combined Civil Pty Limited v Rikaloski [2007] NSWWCCPD 181 as follows (para 33):
“That case made it clear that the prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions (per Heydon JA in Makita at [59]). Without that evidence the expert’s opinion will be a ‘bare conclusion’ (Makita at [59]). In many cases the history recorded by an expert will not accord precisely with the other evidence in the case. In that situation the question will be whether the history recorded provided a ‘fair climate’ for the acceptance of the expert’s opinion (Makita at 731-732; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76).”
In my view, Dr Ellis’ report failed to pass the test of admissibility of expert opinion enunciated by Heydon JA in Makita. I say this not only because of Dr Ellis’ unsubstantiated opinion as to diagnosis, but also his statement as to “excessive use of the left arm” does not accord with the Appellant’s own statement.
The only other medical evidence to shed any light on this issue is a WorkCover medical certificate issued by the Appellant’s general practitioner, Dr Hashim Saba dated 10 June 2007. In that certificate under the heading “How the Injury Occurred” Dr Saba stated: “L shoulder pain work related”. His diagnosis was described as “supraspinatus muscle tear L shoulder” with a handwritten entry stating “left shoulder currently declined”. Dr Saba opined that “the worker’s employment is a substantial contributing factor to this injury” and under the heading “Management Plan” stated “unfit for work until MR[I] done”.
There is no evidence that such an investigation has been done in relation to the Appellant’s left shoulder or arm such that the certificate itself, in the absence of any report from Dr Saba, similarly fails to meet the test in Makita to which I have referred previously.
The Arbitrator set out her reasons for preferring the Respondent’s evidence on this issue in paragraph 28 which I have quoted previously. Whilst I accept that some of the Arbitrator’s findings are somewhat speculative, for example, her statement that “… I believe she would have experienced symptoms before March 2007”, and that there was “nothing happening” between May and September 2006, I am of the view that there are nonetheless valid reasons for the Arbitrator’s ultimate conclusion. As the Arbitrator rightly pointed out (para 28(c)):
“… Dr Ellis has not indicated any work performed during that time that was not suitable and might have resulted in her having to compensate by using her left shoulder more or excessively.”
This is not so much a statement, as the Appellant submits, as to the ‘nature and conditions’ of employment but rather a statement as to the lack of evidence as to what tasks or activities the Appellant claimed caused her to use her left arm excessively in compensation for the injury to her right arm.
In other words, the evidence as to “excessive use” was scant indeed and, as I have said, unsupported by the Appellant’s statement.
Given the paucity of medical and lay evidence from the Appellant, the Arbitrator was entitled to accept the opinion of Dr Michael Ryan, relied upon by the Respondent. In a report dated 15 June 2007, Dr Ryan, who had previously assessed the Appellant on 28 June 2006 in relation to her right arm injury made the following observations:
“Dr Ellis performed an assessment of Mrs Wahidi on 15 March 2007. In his report he claims ‘the left shoulder has now become painful as a result of excessive use’. The statement implies that there is a normal level of use, beyond which symptoms will occur. No such criteria exist. Mrs Wahidi simply developed similar symptoms in her left shoulder. It is probable that a genetic predisposition determined by arthrosis of the acromioclavicular joint and vascular/arthritic changes vaguely described as tendinosis in the supraspinatus tendon and subacromial bursa combined to cause a shoulder to become symptomatic. It is likely that in given circumstances, a threshold of which symptoms appear is different, however this threshold is hypothetical, as is Dr Ellis’ hypothesis of use.”
Whilst I accept, as the Appellant points out, that she never claimed “… that the work whilst on light duties was onerous or by itself was capable of causing discreet injury to her left shoulder …”, the thrust of the Arbitrator’s reasons are to the effect that there was simply no evidence to indicate that the Appellant had in fact excessively used her left arm.
It is not sufficient for the Appellant simply to submit that “… the cause of the left shoulder injury is a direct consequence of the right shoulder injury itself and its sequelae”. There must be evidence to support such proposition. As the Court stated in Bates:
“… the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury”.
There was no adequate diagnosis by Dr Ellis as to the nature of the claimed left shoulder injury, nor is there evidence that the Appellant, in whatever tasks she undertook, at work or home, was required to excessively use her left arm as a consequence of her right shoulder injury.
The Appellant’s submissions on this issue merely reflect the Appellant’s own assessment of her claim for which there was simply inadequate evidence.
CONCLUSION
I am not persuaded that the Appellant has demonstrated any error by the Arbitrator in her determination of the issue before her. There was inadequate evidence to support the Appellant’s assertion as to the cause of her claimed left shoulder injury, both lay and medical.
DECISION
The decision of the Arbitrator dated 20 September 2007 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
31 January 2008
I, MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
9
0