Waldron v Agrimac International Pty Limited - [2016] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Waldron v Agrimac International Pty Limited [2016] NSWWCCPD 35
APPELLANT:	Karen Leigh Waldron
RESPONDENT:	Agrimac International Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-5282/15
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	26 February 2016
DATE OF APPEAL DECISION:	14 July 2016
SUBJECT MATTER OF DECISION:	Admission of ‘forensic medical reports’ on the restricted basis contemplated in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96; nature of the restriction; alleged errors in fact finding; duty to give reasons
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bourke Love
Respondent:	Hall & Wilcox
ORDERS MADE ON APPEAL:	1. The order in paragraph [1] of the Certificate of Determination dated 26 February 2016 is confirmed. 2. The orders in paragraphs [2] and [3] of the Certificate of Determination dated 26 February 2016 are revoked. In substitution the following orders are made: “2. The claim pursuant to s 66 of the Workers Compensation Act 1987 in respect of scarring is dismissed. 3. The Application to Resolve a Dispute is amended at Part 5.6 to add a claim in respect of 14 per cent whole person impairment in respect of the right upper extremity (shoulder), noting the appellant has already been compensated in respect of 9 per cent whole person impairment for that part. 4. The matter is remitted to the Registrar, for referral to an Approved Medical Specialist, to assess whole person impairment in respect of the right upper extremity (shoulder) resulting from injury on 3 June 2005. 5. The Approved Medical Specialist is to have access to: (a) the Application to Resolve a Dispute and attached documents, but excluding the reports of Dr Bodel; (b) the Reply and attached documents, but excluding the reports of Dr Oates, Dr Thomson and Dr Powell, and (c) the respondent’s Application to Admit Late Documents dated 20 October 2015.”

INTRODUCTION

This claim is for additional lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The grounds of appeal allege various errors in fact finding. There is an associated issue going to the use of medical evidence admitted in accordance with the decision in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96 (McCarthy), due to the application of cl 49 of the Workers Compensation Regulation 2010 (the Regulations).

BACKGROUND

Karen Leigh Waldron (the appellant) was employed by Agrimac International Pty Limited (the respondent) from about 2000. She was a full-time process worker from about 2002. She suffered injury in an incident on 3 June 2005, when she fell whilst descending stairs at the respondent’s premises, a macadamia nut processing factory. She suffered conceded injury to her right shoulder, and associated surgical scarring.
The appellant recovered lump sum compensation pursuant to s 66 of the 1987 Act. She was assessed by Dr Ashwell, an orthopaedic surgeon, at the request of her solicitors. He assessed eight per cent whole person impairment (right upper extremity) in a report dated 27 August 2007. There was an agreement pursuant to s 66A of the 1987 Act, dated 9 January 2008, in respect of eight per cent whole person impairment. The nominated date of injury was 3 June 2005.
The appellant was assessed by Dr Miller, a surgeon, at the request of her solicitors. He reported on 14 November 2008 and 27 March 2009. He assessed 11 per cent whole person impairment, in respect of 9 per cent (right upper extremity) and 2 per cent (scarring). The parties entered into an agreement pursuant to s 66A of the 1987 Act, dated 9 June 2009, consistent with Dr Miller’s assessment. Again, the nominated date of injury was 3 June 2005. Credit was given for the sum paid under the earlier agreement, and additionally there was a sum of $16,000 awarded pursuant to s 67 of the 1987 Act, as it then stood.
The appellant was assessed at the request of her solicitors by Dr McKee, a surgeon, who reported on 5 January 2012 and 11 July 2012. He assessed 22 per cent whole person impairment (14 per cent right upper extremity, 7 per cent cervical spine and 2 per cent scarring, producing 22 per cent when combined).
A claim pursuant to ss 66 and 67 of the 1987 Act, consistent with Dr McKee’s assessment, was made by letter dated 12 January 2012. The letter nominated two dates of injury, 3 June 2005 and 30 September 2005. The respondent’s insurer issued a s 74 notice dated 1 March 2012. It denied liability for injury to the cervical spine. It denied there was any entitlement to “further impairment to the right upper extremity and scarring”.
Proceedings seeking compensation pursuant to ss 66 and 67, consistent with that claim, together with weekly compensation from 9 November 2011, were commenced in the Commission on 27 July 2012 (number 7405-12). The pleadings alleged injuries on 3 June 2005 and 30 September 2005 (by way of aggravation). These proceedings resolved at a conciliation conference. Consent Orders dated 11 January 2012 (sic, 2013) provided for discontinuance of the proceedings. There was a notation that weekly compensation would be paid from 9 November 2011 on a continuing basis. There were no other orders (beyond the discontinuance) dealing with the claim for further permanent impairment compensation.
The appellant was assessed by Dr Bodel, an orthopaedic surgeon, at the request of her solicitors. He reported on 1 March 2013, 18 April 2013 and 12 June 2015. He initially assessed 14 per cent whole person impairment (8 per cent right upper extremity and 7 per cent cervical spine, combining at 14 per cent). In his last report, he assessed 18 per cent whole person impairment (10 per cent right upper extremity, 7 per cent cervical spine and 2 per cent scarring, combining at 18 per cent).
The appellant made a claim by letter dated 24 June 2015, based on Dr Bodel’s last report. The letter of claim recited that the parties had already entered into an agreement in respect of the right shoulder at 11 per cent whole person impairment. No additional claim was made for the right upper extremity. The further claim was for the cervical spine (7 per cent whole person impairment) and scarring (2 per cent whole person impairment). The letter reverted to nominating a single date of injury, 3 June 2005.
The letter of claim proceeded under an apparent misapprehension regarding the s 66A agreement dated 9 June 2009. That agreement recited that it was based on the assessment in Dr Miller’s report dated 27 March 2009. The report of that date assessed 9 per cent in respect of the right upper extremity and 2 per cent for scarring, a total of 11 per cent. At that point in time, the figure of 9 per cent, assessed by Dr Miller, was the highest available to the appellant in respect of the right upper extremity.
The respondent’s insurer denied the claim for additional lump sum compensation, in a s 74 notice dated 31 August 2015. It referred to the decision in Cram Fluid Power Pty Limited v Green [2015] NSWCA 250 (Green), and stated that the further claim was not available to the appellant. It also confirmed an earlier decision which denied injury to the appellant’s cervical spine.

THE ARBITRAL PROCEEDINGS

The proceedings were commenced by an Application to Resolve a Dispute registered on 14 September 2015 (the Application). Like the most recent letter of claim, it sought additional lump sum compensation in respect of the cervical spine (7 per cent) and scarring (2 per cent). The nominated date of injury was 3 June 2005.
A conciliation conference/arbitration hearing was held at Tweed Heads on 14 January 2016. Mr Somerville of counsel, instructed by Ms Medland, appeared for the appellant and Mr Baker of counsel appeared for the respondent. The matter proceeded on the basis of the written material, no oral evidence was adduced.
Mr Baker announced that, due to the operation of cl 11A of Sch 8 of the Regulations, which commenced effective from 13 November 2015, the respondent no longer raised any issue about the availability of the further claim, on the basis of the Court of Appeal decision in Green. The only issue was whether the appellant had suffered injury to her cervical spine (T2.23–34).
There are issues between the parties, going to the use made of medical evidence at the hearing. The basis on which various pieces of medical evidence were admitted is relevant to issues in this appeal. The sequence of events at the arbitration, going to the admission of evidence and submissions on the evidence, is set out in some detail below. The Arbitrator, after hearing from counsel, reserved his decision.

THE ARBITRATOR’S DECISION

The Arbitrator’s Certificate of Determination and Statement of Reasons are dated 26 February 2016.
The Arbitrator approached the matter on the basis on which it was pleaded, that the earlier lump sum compensation, the subject of s 66A agreements totalling 11 per cent, was in respect of the right upper extremity only (at [4] and [5] of his reasons). He noted that the appellant, at the arbitration hearing, withdrew her application that the matter be referred to an Approved Medical Specialist (AMS) for assessment of a threshold dispute for work injury damages (at [8]). He noted that the sole issue requiring his determination was whether there was injury to the cervical spine.
The Arbitrator referred to an extempore decision, delivered during the running of the hearing, that the appellant could not rely on Dr Bodel’s reports as witness statements, on the basis of the decision in McCarthy (at [20]). He said that the reports of Dr Ashwell, Dr Miller, Dr Oates and Dr Powell were admitted on the basis of the restricted purpose contemplated in McCarthy.
The Arbitrator set out a detailed summary of the parties’ submissions. He carefully summarised the medical evidence and statements relied on by the appellant. He said he was satisfied that the mechanism of injury involved the appellant grabbing a railing when she slipped and fell whilst descending stairs, landing on her right arm and shoulder (at [47]–[48]). He dealt with the treating medical evidence in some detail, including consideration of when there were first corroborated complaints of neck pain. He dealt with the report of Dr McKee.
The Arbitrator said there was a “lack or paucity of opinion as to the pathology, if any, arising from the injurious event”. He referred to Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (Lyons) and Spicer Axle Australia Pty Limited v Merza [2007] NSWWCCPD 148 (Merza) (at [106]).
The Arbitrator concluded:
“107. I am left to speculate as to the cause of the bilateral tenderness of the neck as found by Dr McKee in the absence of contemporaneous complaint about the neck to treating medical providers and the physiotherapist.

108. Dr McKee has offered no opinion about the cervical or neck pathology caused by the event on 3 June 2005.

109. I am also left to speculate as to cause of the cervical or neck pathology, if any, and the onset of the neck pain and its causal relationship to the injury in 2003 [sic] when the first recorded complaint about the neck is not until March 2008 following an examination by Dr Powell in December 2007.

110. I am not satisfied on the balance of probabilities that Ms Waldron suffered an injury to her cervical spine or neck in the course of employment with the respondent on 3 June 2005.”

The Arbitrator referred the matter to an AMS for assessment of whole permanent impairment in respect of scarring.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
The appellant submitted that her first ground of appeal was from an interlocutory decision of the Arbitrator, referred to at [17]–[22] of the reasons. Those paragraphs dealt with the exclusion of some medical evidence in compliance with cl 49 of the Regulations, and the admission of other medical evidence on a restricted basis.
The respondent submitted that this was “probably not an interlocutory decision as it was part of the Arbitrator’s judgement [sic]”. The respondent did not argue that, if necessary pursuant to s 352(3A), leave should not be granted. If a relevant ruling is interlocutory, questions with respect to it may be raised on appeal once a final determination is made: Dunphy v Boney [2010] NSWWCCPD 111 at [88]–[90]. Leave to appeal is granted.

ISSUES IN DISPUTE

The following grounds of appeal are raised at Part 2.8 of the Amended Application – Appeal Against Decision of Arbitrator (Notice of Appeal):
(a)     The Arbitrator erred in the use of evidence, admitted in accordance with the principles in McCarthy.
(b)     The Arbitrator erred in his findings in respect of the limited recording of contemporaneous complaint.
(c)     The Arbitrator erred in respect of his findings relating to the mechanism of injury.
(d)     The Arbitrator erred in respect of his findings relating to the evidence of the nominated treating doctor.
(e)     The Arbitrator erred in respect of the use of evidence of Dr Stabler.
The appellant also asserted that the Arbitrator erred in his rejection of the reports of Dr Bodel, if restricted to their use as witness statements, consistent with the principles in McCarthy. The appellant additionally submitted that there was an “absence of reasons” in this regard. These grounds did not appear in the Notice of Appeal at Part 2.8. They were the subject of submissions. They should have been included in the grounds, even if it were assumed that leave was required on the basis that that part of the decision was interlocutory. It is necessary that submissions direct themselves to a stated ground of appeal: Practice Direction No 6. The respondent made submissions responding to these submissions, and did not suggest that the issue raised should not be considered. The issue raised by these submissions will be referred to as Ground Number 6.

THE ADMISSION OF EVIDENCE AND SUBMISSIONS

The Arbitrator, at the commencement of the hearing, referred to the Application and attached documents, and asked the respondent’s counsel whether there was any objection. The respondent’s counsel indicated that his copy was incomplete, he was “down on a few pages” (T3.3–13). There was some discussion, which did not go to the admissibility of evidence. The Arbitrator then admitted the Application into evidence (T4.1).
The Arbitrator then said that, for the respondent, there was “the Reply and attached documents”, and an Application to Admit Late Documents filed on 20 October 2015. The appellant’s counsel indicated there was “no objection” to those documents, and they were admitted into evidence (T4.8–25). At that point, all of the material lodged by the parties was in evidence without objection, and without restriction as to its use. It was indicated that there were no applications to adduce oral evidence or to cross-examine (T4.25–31). The appellant’s counsel then commenced making submissions going to the merits of the case.
After the appellant’s counsel had addressed for a short time, the respondent’s counsel indicated that, the dispute based on the decision in Green no longer being pursued, he “should take objection under section 322 to there being more than one forensic medical report” (T6.3–17). The Arbitrator referred to cl 49 of the Regulations; the respondent’s counsel said “And regulation 49.” He said he needed to ask the appellant’s counsel to elect whether he relied on “either Bodel or McKee” (T6.20–25).
The appellant’s counsel submitted that no election was required, as Dr McKee and Dr Bodel were “two different specialties” (T6.28). After some submissions and discussion, the appellant’s counsel said:
“Arbitrator, I should also point out that the respondent has Dr Oates, Dr Allen and Dr Powell in their bundle of documents.” (T10.12–14).
A little later the respondent’s counsel said:
“Otherwise I’d be objecting to all their old medicals as well. Dr Ashwell, Dr Miller, et cetera. But those are historical matters and they’re admissible, in my view. Or not objectionable, should I say.” (T11.1–4)
The Arbitrator delivered extempore reasons dealing with this issue (T11.19–13.33). He referred to subclauses 49(1) and 49(3) of the Regulations. He concluded that reliance by the appellant on two forensic medical reports, from Dr McKee and Dr Bodel, was “in contravention of regulation 49”, and asked the appellant’s counsel to elect which he would rely on. The matter was stood down briefly while the appellant’s counsel took instructions. The Arbitrator then delivered some short further reasons on the issue (T14.28–15.28).
The hearing then resumed after a short adjournment, in which the Arbitrator indicated that the battery, in the device recording the proceedings, had become flat and been changed (T16.3–18). The Arbitrator asked counsel to “make their further submissions”, and he would then “give [his] decision again” (T16.17). The following then appears:
“MR SOMERVILLE: Thank you, Arbitrator. Well, given what transpired previously I don’t need to take any objection to the reports that my learned friend seeks to tender or to rely upon those being - - -

ARBITRATOR: Statements of history?

MR SOMERVILLE: Statements of history.

ARBITRATOR: Being Dr Oates and Dr Powell?

MR SOMERVILLE: But I just place on the record obviously that those were only, as I understand it, to be relied upon in respect of history only. I would seek to, or bring you my application for the admission of the report of Dr Bodel on the basis that it is relevant as to the history that is taken. I don’t seek to rely upon it for the opinion that is proffered by Dr Bodel in respect of causation of any other matters, simply that be [sic] admitted on the basis of history and I understand that’s objected to.” (T16.20–17.6)

The Arbitrator then delivered further extempore reasons (T17.8–19.27). He considered that the reports of Dr McKee and Dr Bodel were both ‘forensic medical reports’ within the meaning of subclause 49(4) of the Regulations. He noted a submission by the appellant’s counsel that the appellant would rely on the opinion of Dr McKee, but that the report of Dr Bodel should be admitted “as a witness statement as to historical events”, relying on the decision in McCarthy (T18.21–22).
The Arbitrator said that he was “a little bit perplexed at that submission” (T18.34). Both of those doctors (Dr McKee was the earlier of them) dealt with the history and the causation issue. Both were relied on to support claims for lump sum compensation. He concluded that the use of both together “contravenes regulation 49” (T19.22–23). The appellant’s counsel then said that he would rely on Dr McKee (T20.3).
The appellant’s counsel addressed at some length on the issue going to injury to the cervical spine. He submitted, essentially on the basis of Dr McKee, that the appellant demonstrated a “lack of insight … as to her condition and an inability to excise her neck condition from her shoulder condition” (T28.19–21). At one point, addressing on Dr Allen’s views, the appellant’s counsel said:
“[Dr Allen] concedes that his clinical examination was very different to that of Dr Bodel, and Dr Bodel’s not in evidence so I won’t say anything about Dr Bodel but I think I can make this observation that it was largely consistent with Dr McKee.” (T34.13–16)

The respondent’s counsel then addressed. He referred to a body of lay and medical evidence, consistent with an alleged failure by the appellant to complain of cervical symptoms for a lengthy period after the accident of 3 June 2005. He referred to the history recorded by Dr Ashwell in 2007, the appellant’s claim form in 2005, and early statements of the appellant. He referred to the records of the appellant’s general practitioner, Dr Lai. He submitted that the first complaint of neck symptoms in Dr Lai’s notes was on 28 January 2009.
The respondent’s counsel referred to Dr Miller’s report dated 14 November 2008. He addressed on Dr Miller’s opinion, that the appellant’s cervical spine was not impaired by her shoulder, and that the appellant’s pain in her trapezius muscle was referred from her shoulder. The appellant’s counsel at that point interjected, saying:
“This isn’t opinion. You’re relying on this as a history, aren’t you?” (T52.11–12)
The Arbitrator indicated to the appellant’s counsel that he would be “given an opportunity” (T52.15).
The respondent’s counsel addressed on Dr Oates’s report dated 9 September 2006, and that of Dr Powell dated 18 December 2007. He referred to Dr Powell’s findings on examination, which included whether there was a normal neurological examination (T58.12). He referred to Dr Powell’s conclusion that there was no impairment relating to the neck (T58.17–18). He addressed at some length on the reports of Dr Stabler, the orthopaedic surgeon who treated the appellant’s right shoulder.
The respondent’s counsel addressed on a report from a physiotherapist, Mr Sprogis, who examined the appellant at the request of her solicitors, and reported on 14 October 2011. Mr Sprogis expressed a view that the appellant had also suffered a cervical spine injury. He said that she “has a chronic neuropathic pain syndrome”. The respondent’s counsel submitted that this was the first suggestion of a cervical spine complaint related to the work injury (T72.7–20). He submitted that the views of Dr McKee should not be accepted. Dr McKee referred to an opinion of Mr Sprogis, that deterioration in the right shoulder resulted in increasing neck pain. Dr McKee referred to a request from the appellant’s solicitors that he assess “post-traumatic work-related permanent cervical spine and permanent right upper extremity impairments” (T69.26–70.12).
The appellant’s counsel, in reply, complained about the use made by the respondent of “the forensic reports that were tendered for, what was submitted would be, historical use” (T75.14–15). It was submitted that, on established authority, such reports were “admissible as a witness statement for their histories only” (T75.23–24). It was submitted that submissions were made about the clinical findings of such doctors, which should be “entirely discarded” (T75.24–32).
The appellant’s counsel referred to the use made by the respondent of reports from Dr Ashwell, Dr Oates and Dr Miller. The doctors’ clinical findings had been traversed. The findings were contrasted with those of Dr McKee (T77.5–13). It was submitted that reliance by the respondent, on matters of opinion, was “improper” (T77.18–21). Appropriate use of the historical reports would have involved “what was said to the doctors and what history was recorded” (T77.26–28). It was submitted that the appellant suffered “significant prejudice”. The appellant had not been entitled to rely on “opinions, clinical examinations and the like in Dr Bodel’s report” (T77.30–34). At a later point the appellant’s counsel referred to the “witness statements” as being from Dr Ashwell, Dr Oates, Dr Powell and Dr Miller (T94.28–31).
The following exchange occurred:
“ARBITRATOR: Your submissions is [sic] complaints in relation to Mr Baker’s submissions. How should I deal with Mr Baker’s submissions then?

MR SOMERVILLE: Well, they ought to be ignored insofar as they relate to anything that goes beyond what the authority contemplates in respect of forensic reports that are admitted for the purpose of history only.

ARBITRATOR: So his submissions should be ignored other than history of a witness statement?

MR SOMERVILLE: Yes. Entirely.

ARBITRATOR: Thank you.

MR SOMERVILLE: And by way of example, just to make it clear, things like clinical examination, et cetera, objective and subjective findings by a practitioner go beyond history and ought to be ignored.” (T78.8–27)

The appellant submitted that the report of Dr Allen was the only report which “the respondent should rely upon in relation to clinical findings, examinations and opinion” (T79.1–2).
During an exchange between counsel, going to the matters to be properly drawn from medical evidence tendered on the limited basis contemplated in McCarthy, the following was said:
“MR BAKER: Yes. You’re right in this sense. I make no – and I trust I made no submission in relation to the opinions because I cannot. The opinions are irrelevant. It’s only the historical matters that can be dealt with and those historical matters are the history that they were physically – that they were told, the history of complaint taken and the actual findings at the time. They’re the historical matters.
MR SOMERVILLE: Well, it’s not a – in my respectful submission - - -
MR BAKER: Well, we disagree on that.
MR SOMERVILLE: Yes, sure. It is not – a clinical finding and a clinical examination is not a historical matter. It is not a history that is taken by a doctor, it is an examination that is carried out by the doctor and a recording of findings that the doctor makes and that requires a degree of subjectivity and opinion forming on the part of the doctor as to the nature of those examinations that he carries out.” (T97.9–30)
The appellant’s counsel also addressed at length on the points raised by the respondent’s counsel, going to the lack of recorded complaints to various medical practitioners, and explanations for this. There was also discussion going to the orders to be made on a referral to an Approved Medical Specialist, if the appellant succeeded. The appellant’s counsel withdrew the application that orders include a referral to deal with a threshold dispute, going to work injury damages (T104.24–31).

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

CLAUSE 49 OF THE REGULATIONS

Clause 49 provides:
“49   Restrictions on number of medical reports that can be admitted
(1)    In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)    A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)    Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4)    In this clause:
forensic medical report, in relation to a claim or dispute:
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”

THE DECISION IN McCARTHY

There was an issue in McCarthy going to the nature of the worker’s duties at the time of injury, and subsequently. The injury occurred in 1998, and the claim was being litigated in 2010. There were inconsistent statements of the worker going to the issue of his duties. The worker sought to have admitted into evidence medicolegal reports, commissioned by the employer, which contained histories relevant to this issue, recorded in 1998 and 1999. Admission of the reports was prevented by the then cl 43 of the Workers CompensationRegulation 2003, the equivalent of which is now contained in cl 49 of the Regulations.
Roche DP dealt with the admissibility of the reports at [23]–[37]. The Deputy President, at [33]–[37], said:
“33. Though Dr Chapman’s reports are not admissible as forensic medical reports, the question of whether I should admit them as witness statements raises different questions, namely whether the reports may be admitted for the limited purpose of relying on the histories recorded in them. Two questions arise in determining this issue: is the material relevant to an issue in dispute and will the admission of the reports as witness statements involve any unfairness to Patrick Stevedores.
34. The following common law principles are relevant, but not decisive. First, if evidence is adduced and admissible for more than one purpose it can be used for any and all of those purposes and the party tendering the evidence cannot restrict the purposes to which the evidence can be put (B v The Queen[1992] HCA 68; 175 CLR 599 per Brennan J at 606–607). Second, if evidence is admissible for one purpose, it cannot be rejected on the ground that it is inadmissible for another purpose (Cross on Evidence, Seventh Australian Edition, Butterworths, J D Heydon, 2004, at [1520] citing Rutherford v Richardson [1923] AC 1). Last, subject to s 60 of the Evidence Act (NSW) 1995, if the evidence, admitted for one purpose is not admissible for another purpose, it cannot be used for that other purpose (B v The Queen).
35. Dr Chapman first saw Mr McCarthy on 29 September 1998 and reported on 2 October 1998. He therefore took a history, within four weeks of the accident, of Mr McCarthy’s occupation and work duties. He next saw Mr McCarthy on 9 February 1999 and reported on 10 February 1999. He recorded that Mr McCarthy had returned to work and the nature of his duties at that time. His histories are therefore relevant to the issue in dispute, namely, the nature of Mr McCarthy’s pre- and post-accident duties. Further, the history recorded in a medical report is evidence of the fact (Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 (Jessop)).
36. Mr Batten pointed to no prejudice to his client if I were to admit the reports as witness statements. Given that Patrick Stevedores tendered the reports at the arbitration, there is no unfairness to it if the reports are admitted on appeal as witness statements. As I understand it, if I admit the reports as witness statements, Mr Whiffin does not seek to rely on the doctor’s opinions and conclusions, but merely the histories. Clause 43 would prevent him from relying on the doctor’s opinions in any event.
37. On condition that Mr Whiffin relies only on Dr Chapman’s histories, but not on his opinions and conclusions, it is appropriate, in the circumstances of this case, to admit Dr Chapman’s reports as witness statements, but not as forensic medical reports. It follows that, as I have admitted the reports for the limited purpose of relying on the histories recorded in them, they cannot be used for another purpose. This approach is both fair and logical. It admits evidence relevant to an issue in dispute, but excludes evidence that would breach cl 43 of the Regulation. It is also consistent with common law authority.”

GROUND NUMBER 6 – FAILING TO ADMIT THE REPORTS OF DR BODEL

The Appellant’s Submissions

The appellant submitted that the refusal to admit the reports of Dr Bodel for a restricted purpose, consistent with the decision in McCarthy, was erroneous. The basis of the assertion of error was not identified, save for a submission that some medical reports were admitted on this basis in the respondent’s case, so that the principle was not applied “in a consistent manner”. It was submitted that the appellant suffered “real and substantial prejudice”.
The appellant also submitted that no adequate reasons were given for admitting material on this basis in the respondent’s case, while rejecting the reports of Dr Bodel in the appellant’s case.
The other submissions, purportedly going to this ground, moved to discussion of the use made of the reports, admitted on this basis, in the respondent’s case. That aspect will be dealt with in the consideration of Ground Number 1, which specifically raises it.
The appellant also lodged supplementary submissions on 6 May 2016. The only further matter raised, relevant to this ground, was that the Arbitrator, at T19, appeared to base his decision to exclude Dr Bodel’s reports on the basis that they were forensic medical reports. This, it was submitted, was inconsistent with the basis on which the appellant sought to have them admitted, consistent with McCarthy.

The Respondent’s Submissions

The respondent referred to the three prior claims in connection with the injury, and the previous s 66A agreements. It noted that the allegation of injury to the cervical spine relied solely on the event on 3 June 2005. It was not asserted that the cervical spine injury was caused by the second fall (on 30 September 2005), or by the medical examination by Dr Powell (on 3 December 2007), or that it was in some way consequential to the accepted shoulder injury.
The respondent submitted that the history recorded by Dr Bodel post-dated that of Dr McKee. It was inconsistent with a substantial body of evidence, which supported the proposition that the only injury suffered by the appellant on 3 June 2005 was to her right shoulder. This included the appellant’s statements dated 27 November 2007, 17 October 2011 and 8 March 2012, her claim form, and her “Summary of Claim” dated 26 November 2007.
It was submitted that Dr Bodel’s recorded history “could not have relevantly advanced the Appellant’s case or cure[d] the lack of contemporaneous complaint of neck pain or restriction over the preceding eight years since injury”.

Discussion

It is clear that the reports of Dr McKee and Dr Bodel, attached to the Application, were both ‘forensic medical reports’, within the meaning of cl 49(4) of the Regulations. No argument to the contrary has been put on this appeal. Only one of these could be admitted as such, due to the operation of cl 49(1). The respondent properly took objection to both being admitted.
The appellant initially sought to rely on both of these doctors, on the basis they were of different specialities (a surgeon and an orthopaedic surgeon). The appellant’s counsel then sought to rely on both of them, on the basis that he relied on Dr McKee to explain “the delay in reporting of the condition in the cervical spine”, and on Dr Bodel for “opinion as to the degree of whole person permanent impairment as well as causation” (T9.18–27). The Arbitrator delivered extempore reasons in which he rejected the appellant’s application to rely on both as forensic medical reports, and required the appellant’s counsel to elect which of these two doctors he relied on (T13.29–33). It is not argued that there was error in this regard.
Due to a malfunction of the recording device, the Arbitrator invited counsel to restate their submissions for the record, and said he would give his “decision again on regulation 49” (T16.17–18). The appellant’s counsel then announced that the respondent would rely on its reports from Dr Oates and Dr Powell “in respect of history only” (T16.33). He said that he sought to rely on Dr Bodel “on the basis of history and I understand that’s objected to”. (T17.5–6).
The Arbitrator then (again) delivered extempore reasons, concluding that the reports from both Dr McKee and Dr Bodel were ‘forensic medical reports’ and that the appellant needed to elect which she relied on (T17.8–19.27). During the course of those reasons the Arbitrator referred to the appellant’s application to rely on the report of Dr Bodel, “on the basis of witness statements as to histories”. He said that he was “perplexed at that submission”. He referred to the decision in McCarthy. He discussed the content of the reports of Dr McKee and Dr Bodel (T18.34–19.10). He regarded the two reports as containing substantially similar material. Dr McKee’s was “earlier in time” (T19.1). The appellant’s counsel then said that he elected to rely on Dr McKee (T20.1–4).
The Arbitrator did not deal more specifically with the application to rely on Dr Bodel’s reports solely on the basis of history. The genesis of the shorthand way in which that application was dealt with probably lies in the way in which it was raised. It was mentioned in circumstances where the Arbitrator, after dealing with cl 49 once in extempore reasons, then asked counsel to restate their submissions for the record, so that he could deliver reasons again, due to a problem with the recording device.
Most of the redelivered extempore reasons dealt, for a second time, with whether cl 49 prevented the appellant relying on both Dr McKee and Dr Bodel, as forensic medical reports. The Arbitrator did not specifically refuse the application to rely on Dr Bodel’s reports only as to history. He was not requested to deal with that issue further, or to provide further reasons in respect of it. Logically, the time to make application to rely on Dr Bodel’s reports, as to history only, came after the Arbitrator rejected the appellant’s argument that she could rely on both Dr McKee and Dr Bodel, with no such restriction.
The Arbitrator’s references to the similarities between the evidence of Dr McKee and Dr Bodel, and his observation that Dr McKee’s reports were the first in time, are consistent with a view that Dr Bodel’s reports, admitted only on the restricted basis, would not advance the appellant’s case.
The primary argument run by the respondent was that the appellant, for a lengthy period after 3 June 2005, did not complain, in her claim form, statements or medical histories, of symptoms involving her cervical spine. If the appellant’s cervical spine symptoms did not emerge until a lengthy period after 3 June 2005, it was unlikely that the cervical spine was injured in that incident.
Dr Bodel’s history recorded the following by way of history, which might arguably be relevant to whether the appellant injured her cervical spine on 3 June 2005.
From the report dated 1 March 2013:
(a)     the appellant injured her right shoulder in June 2005 when she slipped on checkerplate stairs and grabbed the railing with her right arm as she fell, causing hyperextension injury to the region of the right shoulder;
(b)     she was off work for two weeks and then returned to full-time work;
(c)     she had a second fall on the same stairs in October 2005, reinjuring the right shoulder;
(d)     she was given medication and physiotherapy;
(e)     she had a number of procedures carried out to her right shoulder by Dr Stabler, which were not of value to her;
(f)      she was unable to return to work;
(g)     she was given a certificate for modified work, to avoid “strenuous and repetitive tasks with the right arm particularly overhead”. She was unable to find alternative work;
(h)     her right shoulder was further injured when she was examined by Dr Powell on 3 December 2007. She said that pain was over the top of the right shoulder;
(i)      she attended Dr Lai on 4 December 2007, stating “very painful” since a doctor put her shoulder over the full range of movement;
(j)      she told Dr Lai she was “gradually getting better” on 14 December 2007;
(k)     she told Dr Lai she was slowly getting better on 31 December 2007;
(l)      Dr Lai, on 8 January 2008, told the respondent’s insurer that the appellant’s clinical capabilities had been downgraded as a consequence of a vigorous examination;
(m)   on 11 March 2008 Dr Stabler referred to the episode with Dr Powell, and said there had been an aggravation of neck and arm pain, recommending physiotherapy;
(n)     in June 2008 Dr Stabler wrote that there was still right shoulder pain, and “also evidence of possible nerve root irritability in regards to the cervical spine”;
(o)     she continued to be certified fit for suitable duties, but none were available;
(p)     her current complaints, when examined, included continuing pain at the base of the neck on the right hand side. It could be aggravated by head down posture or use of the arms overhead. There was weakness of grip on the right side and some intermittent tingling in the right arm, and
(q)     there was ongoing pain over the top of the right shoulder, aggravated by all activities, and extensive scarring in the region of the right shoulder.

From the report dated 12 June 2015:
(a)     in the two years since Dr Bodel’s initial consultation, the appellant’s clinical condition was much the same, there was no new accident or injury;
(b)     she now drove a school bus for two hours in the morning and two hours in the afternoon, for about 42 weeks per year;
(c)     her current complaints involved ache in the region of the right shoulder, and extensive scarring of the shoulder. Pushing, pulling lifting or using the right arm overhead aggravated the pain. There was pain at the base of her neck, aggravated by head down posture or use of the arms overhead. There was slight weakness of grip strength, but no numbness or tingling in the hand, and
(d)     she took analgesia and was active with home based exercises.
There was no history from the appellant contained in the supplementary report of 18 April 2013, which responded to the provision of material and questions from the appellant’s solicitors. There are a number of entries referred to above, which were recorded by Dr Bodel as matters of history, and consequently are included in the above summary, which were clearly taken from other material provided to the doctor. The references to the clinical notes of Dr Lai, and the findings, treatment and opinion of Dr Stabler, fall into this category. It is material otherwise in evidence, in any event. The mechanism of injury described by Dr Bodel is similar to that recorded by Dr McKee, whose reports were in evidence.
In short, there is nothing recorded in Dr Bodel’s reports, by way of history, which would assist the appellant on the issue of whether she suffered injury to the cervical spine in the incident on 3 June 2005, and which was not in evidence from other sources.
The appellant’s counsel stated that he wished to rely on Dr Bodel’s report “on the basis that it is relevant as to the history that is taken” (T17.1–2). The Arbitrator indicated that Dr McKee dealt with the history and the causation issue in the same way as Dr Bodel (T19.3–6). Thereafter, the Arbitrator said to the appellant’s counsel that he would “leave it to you as to which reports you wish to rely upon not only in relation to historical events but also causation as a forensic medical report” (T19.23–6). The appellant’s counsel indicated that he relied on Dr McKee (T20.3).
The appellant’s submissions on appeal were not specific regarding the alleged error made by the Arbitrator in not admitting the reports of Dr Bodel as to history, save for an assertion that the approach was not consistent.
In McCarthy Roche DP, at [33], referred to two questions governing the admission of reports on the restricted basis. The second was whether there was unfairness to the other party. It is not suggested there would be unfairness to the respondent, if the reports of Dr Bodel were admitted on the restricted basis. The first question was whether the material was relevant to an issue in dispute. Most of the history recorded by Dr Bodel went to the (uncontentious) injury to the right shoulder.
For reasons which appear below, the medical reports admitted as to history only, in the respondent’s case, were those of Dr Oates and Dr Powell. The relevance of historical matters contained in those reports, to the issue between the parties, was readily apparent.
Dr Oates examined the appellant on 26 July 2006, approximately one year after the pleaded injury. He recorded a history from the appellant that, at the time of the accident on 3 June 2005, she had “soreness in the right shoulder and initial soreness in the backside”. He recorded that, after a second fall at work on 1 October 2005, she landed on “her backside and right elbow”. On her return to work she had “agonising pain in the right elbow and shoulder”. He did not record a history consistent with injury to the cervical spine on 3 June 2005.
Dr Powell examined the appellant on 3 December 2007. He recorded a history of the incident on 3 June 2005, that the appellant “slipped and grabbed at the rail with her right arm slowing her fall onto her bottom. She felt a tearing and pulling sensation in the right shoulder region.” He also recorded a history of a fall on stairs, in late September 2005, “falling onto her right elbow which included pain about the shoulder”. There was a history of ongoing shoulder symptoms, and surgical procedures. He recorded “current symptoms” involving:
“… soreness about the outer and anterior shoulder, which is present all the time. This pain is increased by elevating the arm, movement and lifting of any sort and on driving.
She feels stiff about the shoulder but otherwise has no other symptoms.”
The history recorded by Dr Powell did not refer to any form of injury to the cervical spine on 3 June 2005, or to any cervical symptoms.
The earliest references to neck symptoms, recorded in the histories in Dr Bodel’s reports, were those reported to Dr Stabler on 11 March 2008 and subsequently. Dr Bodel’s references to these were clearly taken from Dr Stabler’s reports, which were in evidence in any event. Dr Bodel’s restatement of their existence neither added to, nor detracted from, their significance.
Dr Bodel’s history included complaints relevant to the neck at the time of his examinations, on 1 March 2013 and 10 June 2015. This did not assist on the question of whether the appellant’s neck was injured in the incident on 3 June 2005, which was the only issue. There had been recorded complaints of neck pain before 1 March 2013, to a number of doctors, including Dr Lai and Dr Stabler (who were treating), and Dr McKee.
The respondent’s submission, referred to at [62] above, is correct; Dr Bodel’s history could not have relevantly advanced the appellant’s case. The first of the questions going to admissibility, raised in McCarthy at [33], is answered in the negative. This justifies a refusal to admit Dr Bodel’s reports, on a restricted basis, consistent with McCarthy.
The Arbitrator’s reasons were brief. His extempore reasons dealt predominantly with the issue which had been argued before him, being whether cl 49 of the Regulations precluded the appellant from relying on the forensic medical reports of both Dr McKee and Dr Bodel. The shorthand way in which the Arbitrator expressed himself, relevant to admission of Dr Bodel’s reports on the basis of history only, reflected the relatively shorthand way in which the application had been expressed (T16.33–17.5). Mahoney JA in Housing Commission of New South Wales v Tamar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385G–386A, restated by his Honour in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270B–C, said:
“… the duty of a judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them … In my opinion it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.”
The brevity of the Arbitrator’s reasons, given the circumstances of the relevant application, was not inappropriate. It does not support the contention that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application: NSW Police Force v Newby [2009] NSWWCCPD 75, applying YG & GG v Minister for Community Services [2002] NSWCA 247. The view reached by the Arbitrator was, in my view, correct.
Ground Number 6 is rejected.

GROUND NUMBER 1 – ERROR IN THE USE OF MEDICAL EVIDENCE

The Appellant’s Submissions

The appellant submitted that:
“…‘findings on examination’ of a doctor do not fit within the ambit of a witness statement or history as contemplated by McCarthy, but rather form part of the forensic opinion. In this regard clinical examination resulting in conclusions requires application of clinical judgment by a practitioner.”
It was submitted that the reports of Dr Ashwell, Dr Miller, Dr Oates and Dr Powell were admitted “in accordance with McCarthy”. The appellant submitted that, whilst broadly noting that the opinions or conclusions in these reports were not relied on, the respondent made submissions outside this restriction. Reference was made to passages summarised at [26] of the Arbitrator’s reasons, at sub-paragraphs (63)–(68), (86)–(87) and (95). It was submitted that the Arbitrator erred in allowing such submissions. The Arbitrator did not, in his reasons, say that he had not taken such submissions into account or rejected them. It is to be inferred that they had a “material effect on the Arbitrator’s Decision”.
The appellant, in her supplementary submissions lodged on 6 May 2016, identified 12 specific passages in the transcript, which were said to involve submissions by the respondent which went beyond what was appropriate, applying the restrictions in McCarthy.

The Respondent’s Submissions

The respondent’s submissions, at [8], made the point that the reports of Dr Ashwell and Dr Miller were part of the material admitted in the appellant’s case, not in the respondent’s case. The respondent did not make any application in respect of cl 49 of the Regulations, in relation to these reports. The respondent did submit that the reports of Dr Thompson, Dr Powell and Dr Oates were admitted without objection, on the basis that this was “based on the admission of the historical content without reliance on the opinions and conclusions”.
The respondent, at [11] of its submissions, submitted that, given the nature of the factual issue, contemporaneous histories of the event on 3 June 2005 and its sequelae, including complaints, tests and treatment, were relevant. This included findings on examination.
The respondent’s submissions, at [13], stated that the respondent made it clear that it did not place reliance on the conclusions or opinions in the reports tendered for a restricted purpose. The appellant’s counsel, at T16.20–27, acknowledged that the respondent accepted this restriction.
The respondent’s submissions referred specifically to those sections of the transcript which dealt with submissions before the Arbitrator going to Dr Ashwell, Dr Miller, Dr Oates, Dr Thompson and Dr Powell. The submissions dealt with the summaries by the Arbitrator of that medical evidence at [26] of his reasons.
The respondent’s primary submission on this ground was that McCarthy did not limit the admission of objective contemporaneous objective findings in a report, subject to relevance. The absence of relevant complaints, objective findings and restrictions by doctors over a period of time was relevant and admissible.
The respondent, responding to paragraphs [5]–[16] of the appellant’s supplementary submissions, submitted that these were predicated on a lack of acceptance, by the appellant, of factual findings made by the Arbitrator, without demonstrating any error by the Arbitrator in determining those findings. The appellant did not demonstrate error in the Arbitrator’s analysis. This submission responded to the appellant’s supplementary submissions going to grounds 1 to 3, which were the grounds addressed in paragraphs [5]–[16] of those submissions.

Discussion

The Basis of the Admission of Various Reports

The respondent’s submission, going to the basis on which the reports of Dr Ashwell and Dr Miller were admitted, is correct. Those reports were attached to the Application; they were part of the appellant’s material. When discussing admission of the Application, the respondent’s counsel raised the fact that he did not appear to have a full copy, he did not (initially) take objection to any of the material attached to it. The Application was admitted without restriction (T4.1–2).
The respondent’s counsel subsequently objected to the appellant relying on both Dr McKee and Dr Bodel, due to cl 49 of the Regulations (T6.15–25). There was no objection to the reports of Dr Ashwell or Dr Miller. The appellant did not seek to withdraw the admission of those reports.
There was obvious reason why this would be so. The reports of Dr Ashwell and Dr Miller had, on their face, been obtained by the appellant’s solicitors, for the purpose of proving an entitlement to lump sum compensation, the subject of the s 66A agreements dated 9 January 2008 and 9 June 2009 respectively. That being so, those reports were excluded from the definition of a ‘forensic medical report’ by cl 49(4)(c) of the Regulations. As the respondent’s counsel correctly observed at T11.2–4:
“Dr Ashwell, Dr Miller, et cetera. But those are historical matters and they’re admissible, in my view. Or not objectionable, should I say.”
The reports of Dr Ashwell and Dr Miller were in evidence for all purposes.
The appellant’s submissions on appeal, dealing with aspects of the submissions before the Arbitrator which were said to be objectionable, specifically referred to submissions summarised at sub-paragraphs (63)–(68) of the reasons at [26]. Of the 12 passages in the transcript specifically referred to in the supplementary submissions, the first 9 involved references to the reports of Dr Ashwell and Dr Miller. For reasons referred to above, those submissions dealing with Dr Ashwell and Dr Miller were not objectionable.
The appellant also specifically referred, in its submissions on appeal, to the submissions summarised at (86), (87) and (95) of the Arbitrator’s reasons at [26]. The submissions before the Arbitrator, referred to at (86) and (87), were to the effect that Dr Oates examined the appellant’s right shoulder and neck. The neck, on examination, was said to exhibit “normal contour with full range of movement”. The submission summarised at (95) said “Dr Powell examined the [appellant’s] neck and found no tenderness to palpation, and that there was a full range of motion.”
Thus, the references to allegedly inappropriate submissions, raised in the appellant’s supplementary submissions, are to passages dealing with Dr Oates (at T55.30 and T56.5), and Dr Powell (at T58.5 and T58.15).
The passage at T55.30 quoted a history to Dr Oates dealing with the appellant’s ability to perform housework and yard work. This described what the appellant told the doctor on this topic. It clearly was admissible, and was not outside the restrictions imposed by McCarthy.
The passage at T56.5–10 recorded Dr Oates’s findings on examination of the appellant’s neck. The passage at T58.5–18 dealt with Dr Powell’s findings on examination of the appellant’s neck.

Limits on the Use of Reports Admitted Subject to the McCarthy Restriction

There is a specific issue raised between the parties, going to the use which can properly be made of a report admitted on the basis contemplated in McCarthy. The appellant submitted that findings on examination formed part of the “forensic opinion”, and that “clinical examination resulting in conclusions requires application of clinical judgment by a practitioner”. The appellant submitted that legitimate use of such a report did not include findings on examination.
The respondent submitted that “the lack of any objective examination finding by serial doctors over the time the examinations were conducted is relevant and admissible”. It further submitted:
“In determining McCarthy, DP Roche did not limit the admission of contemporaneous objective findings in a medical report when the question posed is the [sic, of] relevance to the particular issue in dispute.”
Neither party referred to any authority on the issue of whether, a report being admitted subject to the restrictions in McCarthy, it was admissible not only as regards the recorded history, but also in respect of recorded examination findings. There is no authority on the point of which I am aware.
The use which was made of the otherwise inadmissible forensic medical reports, in McCarthy, went purely to the history recorded. In admitting the reports, the Deputy President at [37] (quoted at [55] above) said:
“I have admitted the reports for the limited purpose of relying on the histories recorded in them, they cannot be used for another purpose.”
McCarthy is authority for the proposition that a ‘forensic medical report’, the use of which is otherwise precluded by cl 49 of the Regulations, may be admitted as a witness statement for the limited purpose of proving the history which it contains. The history would include the complaints made at the time of the examination. That is subject to the provisos contained in McCarthy at [33], being the requirement of relevance, and consideration of whether such admission causes unfairness to another party. McCarthy does not go further than that.
Ultimately it was properly conceded by the appellant, at the arbitration hearing, that complaints made to a doctor fall within the use which can be made of a report admitted on a restricted basis consistent with McCarthy (T108.1–14).
It is not to the point to say that the Deputy President in McCarthy did not limit the admission of contemporaneous objective findings. The only use which the worker sought to make of the relevant reports, in McCarthy, was to prove matters referred to in the histories. The Deputy President considered only whether the reports could be admitted for that limited purpose.
The respondent’s argument, that objective findings on examination may well be relevant to issues such as ‘injury’ and causation, is plainly true. However, the issue is not simply one of relevance. The issue is whether evidence of these additional matters is admissible, notwithstanding the prohibition in cl 49 against the admission of more than one ‘forensic medical report’.
The concept in McCarthy, of admitting such a report as a “witness statement”, is that the report becomes, for the purpose, lay evidence. Evidence from a doctor of what was said by a worker at an examination, both history and complaints, is admissible from the doctor who was present, as it would be from any lay witness who happened to be present and to record it. The report, for that purpose, ceases to be a ‘forensic medical report’ (see McCarthy at [26] and [29]). The evidence of the medical practitioner who is the author of the report becomes the evidence of a lay witness, going to what was said. It is this which places it outside the operation of cl 49.
Consistent with this, evidence from the medical practitioner is not admissible on topics which are properly in the province of an expert medical witness. If it were otherwise, the report would retain its status as a ‘forensic medical report’, and its use would be precluded by the operation of cl 49 of the Regulations.
In R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1994) 34 NSWLR 129 (Miller) Giles J at 130F said:
“An expert may give opinion evidence where the opinion is relevant. The distinction between fact and opinion, and what is opinion evidence, are not particularly clear, but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debateable, reasoned from facts.”
The conducting of a medical examination of a worker, and the recording of findings, is in the province of an expert medical witness. Dr Oates’s findings on examination of the appellant’s cervical spine on 28 July 2006 were in the following terms:
“Cervical spine
Normal contour with full range of movement. There is no spasm. There is tenderness and tightness in the right upper trapezius. Neurology of upper limbs is normal. Grip moderate right equals left.”
Dr Powell’s findings on examination of the appellant’s cervical spine on 3 December 2007 were in the following terms:
“Cervical spine
She holds her neck slightly protruded.
There is no tenderness to palpation. The neck shows a full range of motion.
Neurological examination of the upper limbs is intact.”
The above findings, to adopt the language in Miller, involved a judgmental conclusion reasoned from the facts. The primary facts were the levels of movement, sensory function or tenderness observed by the doctor on examination of the patient. These were then expressed by comparing those levels to what was regarded by the doctor as medically normal. This process clearly depended on a level of expertise on the part of the examiner. A level of expertise was clearly necessary in identifying any abnormality (for example, the findings in the trapezius observed by Dr Oates). Conducting the examination was itself a matter requiring medical expertise.

The recording of findings on examination by doctors is not simply an objective process. It is, for example, relatively common for such reporting to include comment going to a doctor’s opinion on the genuineness or otherwise of the findings, whether symptoms conformed to a dermatomal distribution, and other things of that nature.
The findings on examination of doctors involve the expression by them of expert opinion. The examination could not be appropriately conducted, and resultant conclusions recorded, by a lay witness. The admissibility of the relevant report, as a witness statement describing the history, is dependent on it being a statement of lay evidence. To the extent that the report consists of the expert evidence of a specialist medical practitioner, it falls within the definition of a ‘forensic medical report’ for the purposes of cl 49, and its use for this purpose (if there is more than one such report from the party) is precluded by cl 49(1) of the Regulations.
It follows that, the reports of Dr Oates, Dr Thompson and Dr Powell having been admitted on the restricted basis contemplated in McCarthy, the use which could validly be made of them precluded not only the expressed opinions, but also the findings on examination recorded by those doctors.
The appellant made no specific complaint about the use of the report of Dr Thompson.
It follows from the above that I accept the appellant’s submission on appeal that, when the respondent submitted at the arbitration hearing on the findings on examination of Dr Oates and Dr Powell, this exceeded the use which could be validly made of those doctors’ reports.

What Are the Consequences?

The appellant submitted that the Arbitrator erred, in allowing submissions to be made which went to the findings on examination and conclusions in the reports of Dr Oates and Dr Powell. It submitted that the Arbitrator did not, in his reasons, specifically say that this material was “not taken into account and/or rejected”. The appellant submitted that, “[a]ccordingly, it is to be inferred that such submissions had a material effect on the Arbitrator’s decision”. It is further submitted that the Arbitrator failed, in his reasons, to address the appellant’s submissions in reply. The appellant’s supplementary submissions on the point simply restated the same submission.
The respondent submitted that the appellant’s counsel, in his submissions, recorded that the relevant reports were to be relied on as regards “history only” (T 16.20–27), and this was confirmed in discussion at T 109.1–27 (apparently it should be T 108.1– 27). There was nothing in the Arbitrator’s reasons to suggest he “ignored the caveat, indeed he recorded that fact in his reasons”.
The Arbitrator was clearly aware that the reports of Dr Oates and Dr Powell were admitted subject to a restriction.
The Arbitrator’s reasons at [26] summarised the respondent’s submissions. He noted the history and complaints recorded by Dr Ashwell, and that that doctor examined the appellant’s right shoulder (sub-paragraphs (46)–(51)). He referred to the reports of Dr Miller, noting the appellant’s history and complaints. He referred to Dr Miller’s findings on examination (including of the neck) and his opinion that the appellant’s cervical spine was not impaired by her shoulder (sub-paragraphs (53)–(68)).
The Arbitrator in his summary of the submissions referred to Dr Oates’s examination, history and complaints. He referred to the doctor’s examination findings, including those relevant to the cervical spine (sub-paragraphs (78)–(88)). He referred to Dr Powell’s examination, history and complaints. He referred to the findings on examination by Dr Powell, including those related to the neck (sub-paragraphs (89)–(95)).
The Arbitrator’s reasons at [27] summarised the appellant’s submissions in reply. One of these was that forensic medical reports admitted into evidence were witness statements only, and submissions as to findings and conclusions should be disregarded (sub-paragraphs (1)–(7)).
The Arbitrator at [28] referred to further submissions by the respondent. The respondent submitted that, in the case of those reports admitted on the basis of McCarthy, they were evidence of the history, complaints and findings on examination, but that the opinions and conclusions were not relied on.
The Arbitrator’s reasoning was set out at [29]–[111] of his reasons. On the basis of what is set out above, the matters which the respondent submitted on, outside the restrictions imposed by McCarthy, were the findings on examination in the reports of Dr Oates and Dr Powell, and the reference in submissions to Dr Powell’s opinion.
It was common ground that the conclusions and opinions from Dr Oates and Dr Powell could not be relied on.
The reasoning of the Arbitrator was based largely on evidence of treating practitioners. At [58] he referred to the records of the nominated treating doctor, Dr Lai, in which the first recorded complaint of neck pain was on 28 January 2009, in the following terms:
“History
something new, pain in the rt arm burning sensation on the rt shoulder and radial 3 fingers C5 hypersensitive. Neuralgia”
At [61] the Arbitrator referred to Dr Stabler’s report dated 11 March 2008 (misdated as 2007 on its first page). It said “she had been examined recently [by] a doctor of Allianz” (it is uncontentious that this was Dr Powell). The doctor “‘ripped and tore’ her right shoulder and neck, and that caused greatly increased pain”. There were complaints which included the neck, right arm and headaches. There were “positive provocation tests for cervical nerve root impingement”.
The Arbitrator noted a submission by the appellant that the history on 11 March 2008 supported the proposition that the appellant suffered from neck pain before that time, given the reference to “greatly increased pain” (reasons at [60] and [62]).
The Arbitrator referred to Dr Powell’s report dated 18 December 2007, flowing from the examination on 3 December 2007 (reasons at [64]–[65]). The history was of injury to the right shoulder on 3 June 2005. The recorded current symptoms related to the shoulder, with increased pain on elevating the arm, movement and lifting, and driving. The Arbitrator noted that Dr Powell carried out a clinical examination of the cervical spine and right shoulder. He did not refer to the findings on that examination. The Arbitrator quoted extensively from the appellant’s statement dated 23 January 2013 which dealt, amongst other things, with the examination with Dr Powell (reasons at [69]).
The Arbitrator observed that the appellant did not identify whether the neck pain she said she experienced, on the examination with Dr Powell, was in the same place where she had experienced neck pain previously (reasons at [71]). He noted that the appellant’s statement, that she had had pain in the neck “ever since the day of the injury”, inferred an awareness of pain in the neck since 3 June 2005 (reasons at [72]). The Arbitrator said the appellant accepted that the notes of the nominated treating doctor, Dr Lai, did not record any complaint of neck pain until 28 January 2009 (see the entry quoted at [135] above), her 89^th consultation with Dr Lai (reasons at [73]).
The Arbitrator referred to a consultation with Dr Lai on 4 December 2007, the day following the examination by Dr Powell. It recorded:
“drove to Coff [sic] harbour yesterday and saw insurance company and since then been very painful. Examining doctor put her shoulder of [sic] the full range of movement.
Examination: O/E cannot abduct arm above 20 degree.”
The Arbitrator referred to Winter v New South Wales Police Force [2010] NSWWCCPD 121 at [183], which deals with the care which should be taken in dealing with the records of treating doctors. He noted Dr Lai’s notes did not contain reference to neck symptoms in the consultations immediately subsequent to 4 December 2007, they referred to the right shoulder (reasons at [76]). The Arbitrator, at [80] of his reasons, made a specific finding that he did not accept the appellant’s submission, that she could not “distinguish between the shoulder and neck condition”.
Reference was made to Dr Stabler’s report dated 11 March 2007 (sic, 2008). The appellant had been seeing Dr Stabler since November 2005, and he had performed four surgical procedures on her right shoulder. 11 March 2008 was the first reference to neck complaint in Dr Stabler’s reports. It related, on the recorded history at that time, to the consequences of Dr Powell’s examination; it did not refer to “neck pain at variable rates since the injury” (reasons at [84]).
The Arbitrator observed that the appellant said that she had been aware of neck pain since the injury, yet “when examined by independent medical examiners, including Dr Powell, did not complain about neck pain”. “Dr Powell recorded no complaint about the neck.” (reasons at [86]–[87]). The Arbitrator said it was the view of Dr Stabler, in his report dated 11 March 2008, that the appellant had experienced an aggravation of right cervical spine compression. The Arbitrator accepted that the likely cause of this was the examination with Dr Powell. He concluded the appellant was no longer suffering from that problem, having regard to Dr McKee’s reference to an MRI scan dated 15 June 2012, which did not demonstrate it (reasons at [88]–[91]).
The Arbitrator said that Dr Allen (the orthopaedic surgeon on whose forensic medical report the respondent relied) examined the appellant on 28 July 2015. He found full cervical movement in all directions and no neurological abnormality of the upper limbs. The Arbitrator said this was consistent with the conclusion that the aggravation of cervical nerve root compression, caused by the examination with Dr Powell according to Dr Stabler, had ceased (reasons at [91]–[92]).
The Arbitrator discussed the opinion of Dr McKee, the surgeon relied on by the appellant as a forensic medical expert, at some length (reasons at [93]–[103]).
The Arbitrator said there was “a lack or paucity” in Dr McKee’s opinion as to the pathology which resulted from the incident on 3 June 2005 (in context, he was referring to the cervical spine pathology). Dr McKee had not offered an opinion about the cervical spine pathology. Dr McKee first examined the appellant approximately six and a half years after the incident on 3 June 2005. There was an “absence of contemporaneous complaint about the neck to treating medical providers and the physiotherapist” (reasons at [106]–[108]).
At [109]–[110] of his reasons, the Arbitrator concluded:
“109. I am also left to speculate as to the cause of the cervical or neck pathology, if any, and the onset of the neck pain and its causal relationship to the injury in 2003 [sic, 2005] when the first recorded complaint about the neck is not until March 2008, following an examination by Dr Powell in December 2007.
110. I am not satisfied on the balance of probabilities that Ms Waldron suffered an injury to her cervical spine or neck in the course of employment with the respondent on 3 June 2005.”
I have concluded above that the respondent’s submissions at the arbitration hearing, to the extent to which they relied on the findings on examination of Dr Oates and Dr Powell, exceeded the use which could be properly made of those reports, which were admitted on a restricted basis. Although it was not one of the specific passages raised in the appellant’s submissions, I note also that the respondent addressed on the opinion of Dr Powell (see the passage referred to at [43] above). It was ultimately common ground between the parties that, in respect of the reports admitted on a restricted basis, the opinions were not to be used. The opinions would carry no weight.
The appellant submitted that the Arbitrator erred in allowing those submissions to be made. The parties adopted different stances on this legal issue at the arbitration hearing. The appellant specifically submitted that “things like clinical … findings … go beyond history and ought to be ignored” (T78.25–27). The respondent submitted:
“The opinions are irrelevant. It’s only the historical matters that can be dealt with and those historical matters are the history that they were physically – that they were told, the history of complaint taken and the actual findings at the time. They’re the historical matters.” (T97.11–16)
The Arbitrator adopted the practical approach of hearing the submissions of both parties, including on the topic of whether regard could be had to the relevant findings on examination. He said of his role:
“So what is of – what does require me to consider obviously the Presidential authority in relation to a witness statement in respect of these medical reports and whether, Mr Baker, you went beyond what is historical statement.” (T107.23–7)
The parties were unable to assist the Arbitrator with any relevant authority going to which of their positions on the point was correct. Each party made submissions based on the position it had adopted. The Arbitrator at that point regarded the issue as one potentially requiring resolution by him. It is difficult to see any other practical approach that was open to the Arbitrator. There was no error in this. There was no injustice to either party in the Arbitrator hearing the submissions of both parties on the topic, without deciding that legal issue during the running of the arbitration hearing.
The Arbitrator, in his reserved decision, did not decide this legal issue. He decided the matter without reference to the findings on examination of Dr Oates and Dr Powell. His summaries of the submissions included reference to what the parties put to him. This included submissions by the respondent that referred to findings on examination. I have quoted the Arbitrator’s reasoning process, which led to his decision, at some length above. At one point (the passage mentioned at [138] above) he referred to the fact that Dr Powell carried out a physical examination.
The Arbitrator, in his reasoning process, made no reference to the findings on examination of Dr Oates or Dr Powell. In his reasoning process he did not refer to, or rely on, the opinions of either of these doctors. The way in which the Arbitrator arrived at his decision meant that it was unnecessary that he decide the legal issue going to the limits on the proper use of reports admitted on the basis of McCarthy.
The Arbitrator did not decide the legal issue, going to the nature of the restrictions on the use of a report admitted on the basis of McCarthy, in a way contrary to the view I have reached. He did not make any evidentiary or other rulings contrary to that view. His decision did not exhibit a reasoning process inconsistent with the approach which I have concluded to be correct.
In Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 Handley AJA (Young JA agreeing) at [110] quoted and applied the following passage from the judgment of Moffit P in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409:
“... it is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error ... It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.”
In Walshe v Prest [2005] NSWCA 333 Basten JA (Giles JA and Campbell AJA agreeing) at [27] said:
“The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless ‘some substantial wrong or miscarriage has been thereby occasioned’ is now to be found in Part 51, r 23 of the Supreme Court Rules. As noted in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in New South Wales.”
The Arbitrator’s decision was not inconsistent with the view I have formed regarding the operation of the decision of McCarthy, in the circumstances. The appellant submitted that it should be inferred that the respondent’s submissions had a material effect on the decision, because the Arbitrator did not make a specific finding rejecting them, or specifically saying they were not taken into account. I do not accept that submission.
It is apparent, from the Arbitrator’s reasons, that the submissions going to the findings on examination by Dr Oates and Dr Powell, and the opinion of Dr Powell, played no part in the Arbitrator’s reasoning. The Arbitrator, at [80] of his reasons, said that he did not accept the appellant’s case, that she had not been able to distinguish between the condition of her shoulder and that of her neck. He referred to passages of her 2013 statement which he regarded as inconsistent with that submission. This fundamentally undermined the opinion of Dr McKee, going to whether the appellant injured her cervical spine on 3 June 2005.
Ground Number 1 is rejected.

GROUND NUMBER 2 – LIMITED RECORDING OF CONTEMPORANEOUS COMPLAINT

Appellant’s Submissions

The appellant submitted that Dr McKee was the only doctor whose evidence dealt with the lack of insight by the appellant, and her treating medical practitioners, into her neck problems. The appellant, at the arbitration hearing, submitted that Dr McKee’s opinion should be accepted, as it “was un-contradicted by any other expert”. This submission was repeated in the appellant’s supplementary submissions.
The Arbitrator should have dealt with Dr McKee’s opinion in this regard. He acknowledged that Dr McKee was the only expert who dealt with “such issues”. He did not provide adequate reasons “when traversing such a crucial matter”.

Respondent’s Submissions

The respondent submitted that this ground was predicated on the ultimate rejection of Dr McKee’s opinion by the Arbitrator. No other doctor agreed with Dr McKee’s opinion that the appellant, and her treating practitioners, all had a lack of insight into the appellant’s neck problem, or did not take proper histories. Apart from Dr McKee’s assertion, there was no other evidence supporting this proposition. Dr McKee was a general surgeon, and the issue going to injury to the cervical spine involved orthopaedics.
The respondent submitted that the “whole case revolved around the lack of relevant complaint by the appellant to each and every practitioner she saw over time whether as a treating practitioner or as a qualified expert as a result of and since the injury on 3/6/2005”.
The respondent submitted that the Arbitrator’s finding was “reasonably open to him”, he had not failed to use his position of advantage, or made findings inconsistent with incontrovertible facts or contrary to compelling inferences. Reference was made to Caldwell v JA Neilson Investments Pty Ltd [2007] NSWCA 3 and Fox v Percy [2003] HCA 22; 214 CLR 118.

Discussion

This ground was fully set out as “The Arbitrator erred in his findings in respect of the limited recording of contemporaneous complaint.” It did not specifically identify the findings that were said to be erroneous, or the error alleged. The appellant’s submissions on the ground largely directed themselves to a different point, whether Dr McKee’s opinion should have been accepted, and whether the Arbitrator gave adequate reasons for not accepting the views of Dr McKee. Part of Dr McKee’s opinion was that the appellant had at times been unable to distinguish between neck pain and right shoulder pain.
It was quite clear, on the evidence overall, that a significant period elapsed between the incident on 3 June 2005, and the recording of any complaint of neck pain by the appellant’s treating and medicolegal doctors.
Neck complaints were not recorded:
(a)     in the report of Dr Oates, an occupational physician, who saw the appellant at the request of the respondent’s insurer on 26 July 2006;
(b)     in the report of Dr Ashwell, an orthopaedic surgeon who examined the appellant at the request of her solicitors, on 27 August 2007;
(c)     in the report of the appellant’s physiotherapist, Ms Hosie, dated 24 September 2007, dealing with treatment that dated back to 14 June 2005;
(d)     in the report of Dr Powell, an orthopaedic surgeon, who examined the appellant on 3 December 2007 at the request of the respondent’s insurer;
(e)     in the records of Dr Lai, the appellant’s general practitioner and nominated treating doctor, until 28 January 2009;
(f)      in the reports of the appellant’s treating orthopaedic surgeon, Dr Stabler, until 11 March 2008. This was the earliest recorded complaint of neck pain in evidence. It was associated with a history of an examination by Dr Powell on 3 December 2007, and
(g)     in the report of Dr Miller, a surgeon, who saw the appellant on 3 November 2008, at the request of her solicitors.

The statement made in 2013 included significantly more detail of what happened to the appellant’s body in the incident, than the version in 2007. The version accepted by the Arbitrator did not include the added detail. It would be improbable that, approximately eight years after the event, a person would have recollection of where her right arm and feet were at the time of the fall. The Arbitrator did not say that he accepted the evidence, in the 2013 statement, going to precisely what bodily sensations were felt at the time of the fall. By the time of the 2013 statement, this was said to extend to include recollection of a severe wrenching of the neck at the time, and pain “straight away” in the neck.
The accepted version of the mechanics of injury may have had the capacity to produce injury to both the right shoulder and the neck. Whether it in fact caused injury to the neck was a different issue.
The appellant referred to the decision of Neilson J in Lyons. His Honour at [22] said:
“… the word ‘injury’ refers to both the event and the pathology arising from it. It is often necessary to draw the distinction. The Act makes the receipt of injury compensable, not the injury itself.”
The appellant said “‘pathology’ is demonstrated by Dr McKee finding neck impairment, and the evidence demonstrating the existence of neck complaint”. This is incorrect. The existence of impairment or symptoms is not ‘pathology’, it may be a result of ‘pathology’ (see the discussion in Lyons at [18]–[19]). Lyons referred to the frequently accepted proposition that, in considering the term ‘injury’, it is necessary, depending on the statutory context, to distinguish between the injurious event and pathology arising from it (see Lyons at [22], and also Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6).
Tokich applied this proposition, dealing with s 65A of the 1987 Act. The appellant did not refer to any specific passage or principle from Tokich. I do not see that Tokich is inconsistent with Lyons (which is discussed in the later decision). I do not see that Tokich assists the appellant.
In Jaffarie Roche DP, after reviewing various authorities, including Lyons, at [253] 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’.”
The appellant also submitted that issues such as impairment and diagnosis are “within the purview of the AMS”, referring to Jaffarie. Reference was not made to any particular part of Jaffarie, a decision which is some 317 paragraphs in length. It may be that the appellant was seeking to refer to the passage at [249], in which Roche DP reviewed a number of authorities dealing with the bifurcated system of decision making in the Commission, and the respective roles of Arbitrators and AMS’s.
It is true, as the appellant submitted, that assessment of permanent impairment is a function of an AMS and not an Arbitrator. However, it is for the Commission to determine whether a worker has received an injury: Jaffarie at [249]. If the Commission decided that the appellant injured her cervical spine in the pleaded injurious event, it would then be appropriate that the issue of resulting permanent impairment be referred to an AMS: Jaffarie at [278].
What flows from the above is that it was a matter for the Arbitrator to determine whether the appellant suffered injury to her cervical spine in the event on 3 June 2005. The mechanism of injury determined by the Arbitrator was not dissimilar to that in the history recorded by Dr McKee. That, of course, did not decide the ‘injury’ issue. It remained an issue of fact for the Arbitrator to determine whether there was an injury to the cervical spine. For reasons discussed above relating to Ground Number 2, he concluded that the appellant had not discharged her onus in that regard.
Ground Number 3 is rejected.

GROUND NUMBER 4 – ERROR IN FINDINGS RELATED TO THE NOMINATED TREATING DOCTOR

The Appellant’s Submissions

The appellant submitted that there were evidence and submissions going to Dr Lai, and his failure to properly examine the appellant. It was submitted that this, combined with the appellant’s alleged lack of insight into her neck injury, provided a reasonable explanation for the lack of recorded contemporaneous complaint of a neck injury. The appellant submitted that submissions to this effect, at the arbitration hearing, were not acknowledged or dealt with in the Arbitrator’s reasoning. The appellant’s supplementary submissions alleged the Arbitrator’s reasons in this regard were inadequate.

The Respondent’s Submissions

The respondent submitted that there was no evidence that Dr McKee was privy to the notes of Dr Lai. Criticism was made of the assumptions that Dr McKee was asked to assume by the appellant’s solicitors. The respondent noted that Dr Lai’s notes were analysed at T41.7–45.2. The appellant submitted that Dr McKee’s theory about the appellant’s lack of insight, and the assertion that Dr Lai did not properly examine the appellant, did not establish anything on the evidence and was presumptuous.
The respondent also noted that Dr Lai had been given no opportunity to comment on such an assertion or defend his clinical practice.

Discussion

This ground raises similar issues to Ground Number 2, which was rejected.
The Arbitrator, at [25] of his reasons at sub-paragraphs (23) and (24), noted submissions that the appellant lacked insight to differentiate between right shoulder and neck complaints, and also that there was a lack of insight by her medical practitioners, to make that differentiation. At sub-paragraphs (17)–(25) of his reasons at [27], the Arbitrator referred to submissions by the appellant that she lacked awareness and insight, was untrained and “misconceived” her symptoms. It was submitted that Dr Lai had not examined the appellant thoroughly, did not treat the appellant’s neck and did not arrange radiological investigations.
The Arbitrator’s reasons at [55] referred to the submission that there was a lack of insight on the appellant’s part, and that of her treating doctors. The Arbitrator’s reasons at [69] quoted extensively from the appellant’s 2013 statement, including passages at paragraphs [60], [65], [66], [67], [83] and [85] of the statement. These were critical of Dr Lai for various reasons, including not performing thorough examinations, and not arranging radiological examinations. The appellant said that she saw Dr Lai periodically during 2008 and 2009, and she did not recall him actually putting his hands upon her.
The Arbitrator clearly did acknowledge the evidence and submissions put in the appellant’s case, on this topic, contrary to the appellant’s submissions on the appeal.
The appellant’s submissions, on this ground, again consist essentially of complaint that the views of Dr McKee, and the corresponding parts of the appellant’s 2013 statement dealing with the appellant’s inability to distinguish between neck and right shoulder problems, were not accepted. The Arbitrator’s reasons for not accepting that argument are discussed above. They were not simply based on the lack of recorded complaints in the notes of Dr Lai. There were many recorded medical histories, including the histories which predated 11 March 2008, that made no reference to injury to the neck or cervical spine (see [167] above). The appellant’s statement dated 27 November 2007, and claim form dated 24 June 2005, made no reference to such an injury (see [168] above).
The appellant’s explanation, that she experienced difficulty distinguishing between right shoulder and neck symptoms, was rejected by the Arbitrator in his reasons at [80].
The Arbitrator’s reasoning did not specifically touch on the appellant’s evidence about the deficiencies of Dr Lai. This was not something on which the Arbitrator’s decision depended. The Arbitrator was not obliged to refer to every piece of evidence (see the passage from Newby at [150] quoted at [196] above). The Arbitrator gave ample and cogent reasons for arriving at his view.
Ground Number 4 is rejected.

GROUND NUMBER 5 – THE EVIDENCE OF DR STABLER

The Appellant’s Submissions

Dr Stabler reported to the appellant’s solicitors on 31 March 2008. He said that examination on 11 March 2008 “showed clinical evidence of right cervical nerve root compression”. He said, in respect of the neck:
“In addition, I did not advise the claimant that her arm injury had resulted in an impairment of her neck function.
I did advise the claimant that she did have a neck condition, but I did not advise her that her neck condition was due to her right shoulder condition. In fact I consider the two conditions to be completely separate.
The claimant did report that her neck condition had been aggravated by an examination which had been performed by a Medical Practitioner who had examined the claimant for an Insurance Claim.
This examination apparently had caused increased symptoms of neck pain and headache, but I do not consider that the right upper limb injury had resulted in an impairment of neck function.”
The appellant submitted that the Arbitrator erred, in that he failed to acknowledge and deal with the word “increased” in the above passage. It was submitted the use of that word left open “no reasonable possibility” other than that “Dr Stabler was of the opinion that the [appellant] was suffering neck symptoms prior to the examination with Dr Powell, such symptoms ‘increasing’ thereafter.”
The appellant submitted that the Arbitrator “appears to dismiss any such inference” at [86] of his reasons, referring to there being “no complaint of neck pain to a range of doctors”. The appellant again submitted that the Arbitrator “failed to acknowledge” the appellant’s “reasonable explanation for the lack of complaint”, being her “lack of insight” and her “less than desirable examination from her treating doctors, especially her General Practitioner, Dr Lai”. The appellant also submitted that some doctors who did not record neck complaints were seeing the appellant in the context of a claim relating to her shoulder, and such examinations “need to be considered with caution”.
The appellant submitted that Dr McKee dealt with such explanations, but the Arbitrator did not deal with this “adequately or meaningfully”.

The Respondent’s Submissions

The respondent submitted that the Arbitrator’s reasons at [70]–[92] should be read as a whole. The Arbitrator’s reasons included rejection of the proposition that the appellant could not distinguish between her shoulder and neck conditions. Dr Stabler had no history of neck problems prior to the examination with Dr Powell. Other medical histories did not refer to neck pain, prior to Dr Powell’s examination. Dr Stabler’s report dated 31 March 2008 referred to the neck condition as an “independent condition unrelated to the injury of 3/6/2005, and the Arbitrator accepted the treating doctor’s opinion in that respect”.
The respondent submitted that “specialist doctors who conducted examinations of [the appellant’s] neck were not able to discern any issue”. The full and pain free movements were inconsistent with the appellant’s case that she suffered from neck pain from 3 June 2005.
It was submitted that the Arbitrator did not accept the factual basis of Dr McKee’s theory. The theory was “simply unacceptable on the balance of probabilities”. The respondent said that, when Dr Lai actually received a history of “different symptoms he did record them”. Reference was made to the doctor’s entries on 28 January 2009 and 25 February 2009 (see [135] above). Dr Lai did conduct a thorough examination on 4 December 2007, after Dr Powell’s examination on the preceding day.
The Arbitrator’s reasons at [103]–[109] expressed his inability to accept Dr McKee’s theory, having regard to the historical gap and the lack of any diagnosis for the alleged injury to the cervical spine. The respondent submitted that “the arbitrator was required to decide whether to accept the later statement of the Appellant and the view of Dr McKee as against the balance of the factual accounts and medical evidence otherwise.” The Arbitrator ultimately could not accept the evidence of the appellant, which was inconsistent with other evidence. Reference was made to Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [71].

Discussion

Dr Stabler reported to Dr Lai on 11 March 2008, following his examination on that date. He referred to the appellant’s examination by Dr Powell on 3 December 2007:
“She told me that the doctor ‘ripped and tore’ her right shoulder and neck, and that caused greatly increased pain. She now has numbness and pins and needles in the whole of her right hand, and severe neck pain and headaches. She says that she is experiencing migraine headaches.
She has increased pain in the right shoulder, and she is waking many times every night from sleep.
My examination today shows that her right shoulder has voluntary inhibition of elevation due to pain, with poor flexion and abduction to only 60 degrees, with internal rotation to the sacrum, and external rotation to 25 degrees.
She has virtually global numbness in her right hand, but it is worse on the palm.
Her neck is very stiff and she has positive provocation tests for cervical nerve root impingement. Extension and rotation of the cervical spine to the right side causes increased pins and needles in the right forearm and all of the right hand.”
The report dated 31 March 2008 described “increased symptoms of neck pain”. Dr Stabler’s report dated 11 March 2008, to Dr Lai, was written on the date of the examination, and was less specific. The reference to “greatly increased pain” applied to the “right shoulder and neck”, without specifically addressing one or the other. That report then continued “[s]he now has” symptoms in the right hand, neck and headaches, and “[s]he has increased pain in the right shoulder” (emphasis added).
These passages are not necessarily inconsistent with a history that there were previous neck symptoms, which increased. However, nor does the language employed in the report dated 11 March 2008 establish that there were necessarily neck symptoms prior to Dr Powell’s examination. It does demonstrate that care needs to be taken in how much significance is attached to the term “increased” in the circumstances. The significant issue going to when the appellant developed neck symptoms required decision on the evidence overall, not simply by reference to the implications to be attached to the word “increased”, the use of which varies between the two reports prepared by Dr Stabler in March 2008.
The Arbitrator was clearly aware of the argument made by the appellant on this point. He referred to it at [62] and [63] of his reasons. He then referred to Dr Powell’s report, which contained complaint of shoulder symptoms, and a note “otherwise has no other symptoms”. The Arbitrator also referred to the appellant’s consultation with Dr Lai on 4 December 2007, the day following Dr Powell’s examination. The note referred to shoulder symptoms, with no reference to the neck. The Arbitrator noted that subsequent consultations with Dr Lai related to the shoulder only.
The appellant submits, again, that the Arbitrator failed to acknowledge that the worker had an explanation for the lack of complaint regarding her neck, being her lack of insight, and the less than desirable examination by her treating doctors, particularly Dr Lai. The appellant submits, again, that the Arbitrator failed to adequately deal with the opinion of Dr McKee. This again fails to acknowledge the Arbitrator’s rejection of the appellant’s evidence on this issue (at [80] of his reasons), based on clearly stated reasons. It also fails to acknowledge that the lack of complaint lay not only in material from treating doctors, but also in her 2007 statement, her claim form, and multiple medical histories which predated the first recorded complaint of neck pain, on 11 March 2008. It fails to acknowledge, as was submitted by the respondent, that the factual basis for Dr McKee’s view was not accepted by the Arbitrator.
There was no error in how the Arbitrator dealt with the evidence of Dr Stabler.
Ground number 5 is rejected.
The appeal fails.

APPROPRIATE ORDERS

The Arbitrator’s finding stands, that the appellant failed to discharge her onus of proving that she suffered injury to her cervical spine in the injurious event on 3 June 2005.
The Arbitrator, having made that finding, referred the matter to an AMS to assess whole person impairment in respect of scarring. The appellant claimed for two per cent whole person impairment in respect of scarring. This was consistent with Dr McKee’s assessment in his report dated 5 January 2012, and with the claims set out in the appellant’s solicitors’ letters dated 12 January 2012 and 24 June 2015. The appellant does not, on the evidence, have an assessment higher than 2 per cent, regarding her scarring.
The appellant has previously been compensated in respect of 11 per cent whole person impairment, pursuant to the s 66A agreement dated 9 June 2009, which was based on Dr Miller’s assessment in his report dated 27 March 2009. That 11 per cent comprised 9 per cent in respect of the right upper extremity, and 2 per cent in respect of scarring. That is, the appellant has already been compensated for the permanent impairment which is claimed in the current proceedings, for scarring.
The Arbitrator’s referral to an AMS of the claim in respect of scarring, was apparently based on an acceptance of the (mistaken) state of affairs suggested by the pleadings and letters of claim, that the previously compensated 11 per cent whole person impairment was solely in respect of the right upper extremity.
On 5 July 2016, the Commission issued a Direction to the parties in the following terms:
“1. It appears that the s 66A agreement dated 9 June 2009 was based on Dr Miller’s assessment in his report dated 27 March 2009, of 11 per cent whole person impairment, comprising 9 per cent in respect of the right upper extremity and 2 per cent in respect of scarring.
2.     The currently pleaded claim in respect of scarring is in respect of 2 per cent whole person impairment, that is, the same level of impairment which was previously compensated.
3.     The Arbitrator, having decided the issue going to injury to the cervical spine against the appellant, referred the issue of whole person impairment in respect of scarring to an Approved Medical Specialist (AMS) for assessment.
4.     In these circumstances, is there any appropriate basis for the referral in respect of scarring to an AMS?
5.     What are the appropriate orders, if the Arbitrator’s finding on injury to the cervical spine is either reversed, or upheld?”
The appellant’s solicitor, on 7 July 2016, furnished the Commission, by email, with submissions responding to this Direction. He did not take issue with the matters referred to at [1]–[3] of the Direction. Responding to the question at [4] of the Direction, he frankly and appropriately conceded that there was no appropriate basis for referral to an AMS of the allegation in respect of scarring. He also appropriately conceded that, if the Arbitrator’s decision was upheld on the allegation of injury to the cervical spine, there should be an award for the respondent on that allegation, and the further claim in respect of scarring should be dismissed.
The appellant’s solicitor made other submissions going to the potentially available claim for further compensation in respect of the right upper extremity. It was indicated that the appellant’s failure to make a further claim in respect of the right upper extremity was inadvertent, and that the appellant would, if possible, seek leave to amend to include a further claim in respect of the right upper extremity.

The respondent responded to the Direction, by email on 12 July 2016. It noted the appellant was discontinuing the claim in respect of scarring. It said:
“We are instructed to consent to the amendment of the Applicant’s claim for further permanent impairment to the right upper extremity, and agree to this aspect of the Applicant’s claim being referred to the AMS once the appeal in respect of the decision of the Arbitrator on the issue of injury to the Applicant’s cervical spine is determined.”
The appellant relied on the reports of Dr McKee, and not (in the circumstances discussed above) on those of Dr Bodel. Dr McKee’s is the highest assessment of the right upper extremity available to the appellant.
Consistent with the practical approach taken by the parties, the Application will be amended to add to the claim, pursuant to s 66 of the 1987 Act, a claim in respect of 14 per cent whole person impairment in respect of the right upper extremity (shoulder). The appellant is to give credit for the permanent impairment of 9 per cent previously recovered for that part, in accordance with the s 66A agreement dated 9 June 2009.
The Certificate of Determination dated 26 February 2016 provided for the provision of various documents to the AMS. The parties have not, in their submissions responding to the Direction, directed their attention to the appropriateness of those documents being provided to the AMS on referral of the further claim for the right upper extremity. Provision of those documents, consistent with the current order at paragraph [3] of the Certificate of Determination, would involve breach of cl 49 of the Regulations.
As the claim being referred to the AMS is now only that for the right upper extremity, there is no efficacy in referring reports, otherwise in breach of cl 49 of the Regulations, on the basis of their histories only. The appropriate course is that the material referred should not include the reports of Dr Bodel (in the appellant’s case) and the reports of Dr Oates, Dr Thomson and Dr Powell (in the respondent’s case). I can see no purpose in furnishing the AMS with the Arbitrator’s reasons. I give the parties leave to list the matter before me for a telephone conference, to deal with the material to be referred to the AMS, should they seek some other order as regards the material to be provided to the AMS. Such leave is to be exercised, if at all, within seven days.

DECISION

The order in paragraph [1] of the Certificate of Determination dated 26 February 2016 is confirmed.
The orders in paragraphs [2] and [3] of the Certificate of Determination dated 26 February 2016 are revoked. In substitution the following orders are made:
“2. The claim pursuant to s 66 of the Workers Compensation Act 1987 in respect of scarring is dismissed.
3.     The Application to Resolve a Dispute is amended at Part 5.6 to add a claim in respect of 14 per cent whole person impairment in respect of the right upper extremity (shoulder), noting the appellant has already been compensated in respect of 9 per cent whole person impairment for that part.
4.     The matter is remitted to the Registrar, for referral to an Approved Medical Specialist, to assess whole person impairment in respect of the right upper extremity (shoulder) resulting from injury on 3 June 2005.
5.     The Approved Medical Specialist is to have access to:
(a)the Application to Resolve a Dispute and attached documents, but excluding the reports of Dr Bodel;
(b)the Reply and attached documents, but excluding the reports of Dr Oates, Dr Thomson and Dr Powell, and
(c)the respondent’s Application to Admit Late Documents dated 20 October 2015.”

Michael Snell
Acting President

14 July 2016