Watson's Culcairn Hotel Pty Ltd v Dwyer

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Watson’s Culcairn Hotel Pty Ltd v Dwyer [2016] NSWWCCPD 5
APPELLANT:	Watson’s Culcairn Hotel Pty Ltd
RESPONDENT:	Kevin Dwyer
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-5303/14
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	15 October 2015
DATE OF APPEAL DECISION:	25 January 2016
SUBJECT MATTER OF DECISION:	Claim for the cost of proposed hospital and medical treatment; assessment of medical evidence; correct test to apply in claim for cost of hospital and medical treatment; whether need for proposed treatment reasonably necessary as a result of work injury; aggravation of pre-existing condition; relevance of prior symptoms; s 60 of the Workers Compensation Act 1987; whether history recorded provided a fair climate for the acceptance of medical expert’s opinion; application of principles in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510 and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; failure to give reasons for rejecting employer’s medical experts; approach to claim for medical and hospital expenses for consequential conditions; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Slater + Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The name of the appellant employer is amended to be Watson’s Culcairn Hotel Pty Ltd. 2. For the reasons given by the Arbitrator, and the additional reasons in this decision, the Arbitrator’s determination of 15 October 2015 is confirmed.

INTRODUCTION

This appeal concerns an Arbitrator’s factual finding that certain proposed medical treatment, namely a total left knee replacement, right carpal tunnel release, right shoulder physiotherapy and cervical traction and immobilisation of the cervical spine, is reasonably necessary as a result of an accepted injury to the left knee. For the reasons explained below, the appeal is unsuccessful.

BACKGROUND

The respondent worker, Kevin Dwyer, worked for the appellant employer, Watson’s Culcairn Hotel Pty Ltd (wrongly sued as Watsons Culcairn Hotel Pty Ltd), as a part-time gardener. On 8 November 2012, he fell in the course of his employment and injured his left knee and right hand (the hand injury from this fall appears to have been of little consequence and resolved without any treatment) (the 2012 injury). He continued to work until he saw his general practitioner on 15 November 2012, but has not worked since that date.
The insurer initially accepted liability and paid compensation until 13 June 2013.
Mr Dwyer’s treating orthopaedic surgeon, Dr Khoury, recommended that he undergo arthroscopic surgery on his left knee. In a s 74 notice dated 13 May 2013, the appellant’s insurer disputed liability for the cost of that surgery.
As a result of the injury to his left knee, and the resulting pain and instability, Mr Dwyer alleged that his knee gave way on several occasions, causing him to fall and sustain further injuries. Specifically, on 23 May 2013, Mr Dwyer’s left knee gave way and he fell at a supermarket, injuring his wrists, the right worse than the left. His knee also gave way in or about April 2014 and he fell, injuring his right shoulder and neck.
Mr Dwyer commenced proceedings in the Commission on 14 November 2013 in matter No 8796/13 (the 2013 proceedings) seeking weekly compensation and compensation for hospital and medical expenses, including the knee arthroscopy recommended by Dr Khoury.
On 18 March 2014, the parties resolved the 2013 proceedings by consent. The appellant agreed to pay Mr Dwyer weekly compensation from 13 June 2013 to date and continuing, at the rate of $100 per week under s 37 of the Workers Compensation Act 1987 (the 1987 Act), and to pay his hospital and medical expenses, including the cost of the proposed arthroscopic surgery on the left knee.
At review on 15 April 2014, Dr Khoury noted that Mr Dwyer’s gait had deteriorated significantly, and his pain had increased since his last examination. Repeat x-rays were consistent with severe lateral compartment arthritis of the left knee. Dr Khoury said that Mr Dwyer would now not benefit from an arthroscopy and that a left knee replacement was required, together with a derotational osteotomy to correct a rotational misalignment of the tibia.
In a s 74 notice dated 20 May 2014, the insurer disputed liability for the surgery proposed by Dr Khoury, denied liability for injury to the left knee and gave notice that weekly payments would cease on 5 August 2014.
On 7 October 2014, Mr Dwyer commenced the current proceedings in the Commission. He claimed weekly compensation from 5 August 2014 to date and continuing together with compensation for hospital and medical expenses as a result of injuries to his left knee, right wrist, right shoulder and neck.
It is important to note that Mr Dwyer had not injured his right wrist, right shoulder or neck in the fall on 8 November 2012 and that the symptoms in those parts of his body were not injuries as defined in s 4 of the 1987 Act. He sought compensation for those conditions on the ground that his symptoms resulted from the injury to his left knee on 8 November 2012.
The claim for hospital and medical expenses included a claim for an order that the insurer meet the cost of the following proposed treatment:
(a)     the surgery proposed by Dr Khoury, namely, the left total knee replacement (the osteotomy proposed by Dr Khoury having been performed in a public hospital, no claim was made for the cost of that treatment);
(b)     carpal tunnel decompression surgery on the right wrist;
(c)     physiotherapy for the right shoulder, and
(d)     cervical traction and immobilisation of the cervical spine.
Relying on a s 74 notice dated 17 June 2014, the insurer disputed liability for all claims, disputing that Mr Dwyer had injured his left knee and asserting that, if he did, his employment was not a substantial contributing factor to that injury. It relied on evidence that Mr Dwyer had injured his left knee in March 2009 (the 2009 injury) and investigations that revealed damage to the lateral and medial meniscus at that time.
The insurer also relied on evidence from Dr Panjratan, orthopaedic surgeon, who reported on 26 May 2014 that the need for the left knee replacement was due to a pre-existing condition and that the rotation deformity of the left tibia was due to rotational misalignment on healing of the tibia following a compound fracture of the tibia and fibula 25 years ago in a motorbike accident.
As the rotational misalignment of the tibia was considered to have substantially contributed to the left knee pathology, and as it pre-dated the injury on 8 November 2012, the insurer asserted that Mr Dwyer’s employment “is not deemed to be the main contributing factor to [his] injury within the meaning of Section 4(b)(ii) of the Workers Compensation Act 1987”.
With regard to the proposed carpal tunnel decompression surgery for the right wrist, the insurer relied on evidence that, in April 2012, Mr Dwyer had complained to his general practitioner, Dr Mobilia, of paraesthesia in his right hand and pain in his right thumb and his index and middle fingers. In addition, on 27 April 2012, Dr Mobilia recorded “depo medrol. 80 ms + zylocaine 2ml to carpal tunnel rt wrist”.
Dr Panjratan did not accept that Mr Dwyer injured his right wrist in the fall reported to have been due to his left knee instability (presumably the May 2013 fall) and felt that Mr Dwyer had pre-existing degenerative changes in the wrist that were due to become symptomatic sooner or later. The insurer therefore disputed that, with respect to the right wrist, Mr Dwyer had “sustained an injury for which compensation is payable within the meaning of Section 4 and 9A of” the 1987 Act.
Turning to the right shoulder and neck, the insurer relied on Dr Mobilia’s clinical notes dated 30 March 2011, which recorded “right shoulder capsulitis rotator cuff pathology” and evidence from Dr Panjratan. Dr Panjratan stated that he did not believe that Mr Dwyer sustained an injury to his right shoulder or cervical spine as a result of the fall reported to have been due to the left knee instability (presumably the May 2014 fall), noting that he has degenerative changes in the shoulder and neck. In his opinion, the diagnosis for the right shoulder and/or cervical spine was not reasonably attributable to the incident of 8 November 2012. The insurer therefore disputed that Mr Dwyer sustained an injury for which compensation is payable within the meaning of ss 4 and 9A of the 1987 Act.
Last, as Mr Dwyer had not sustained a workplace injury, it followed, so the insurer asserted, that he had no entitlement to weekly compensation and that “any treatment is not deemed reasonable and necessary as it is not addressing a workplace injury”. (As will be explained below, the insurer’s approach to the claim for the right wrist, right shoulder and neck demonstrated a fundamental misunderstanding of Mr Dwyer’s claim. He was not alleging that those conditions were s 4 injuries. His case was that those conditions resulted from the s 4 injury to his left knee when it gave way and he fell.)
As the dispute involved a claim for the cost of proposed medical treatment, the Registrar referred it to an Approved Medical Specialist (AMS) for a non-binding opinion on whether that treatment was reasonably necessary as a result of the injuries received on 8 November 2012. The AMS, Dr Machart, issued a Medical Assessment Certificate on 2 March 2015, in which he concluded that the proposed treatment was reasonably necessary, but not as a result of the injury received on 8 November 2012.
The Commission listed the matter for conciliation and arbitration in Albury on 27 April 2014. The matter proceeded on that day. As no transcript was available for that hearing, the Arbitrator reconvened a further hearing in Sydney on 8 September 2015. At neither hearing did either side call any oral evidence or seek leave to cross-examine any witnesses.
The Arbitrator delivered a written decision on 15 October 2015. Accepting the evidence from Dr Hopcroft, orthopaedic surgeon qualified by Mr Dwyer’s solicitors, he found in favour of Mr Dwyer on all issues. The Commission issued a Certificate of Determination on that day in the following terms:
“1.Award for the applicant pursuant to section 60 of the Workers Compensation Act 1987 in respect of total left knee replacement, right carpal tunnel release, right shoulder physiotherapy and intermittent cervical traction and immobilisation of the cervical spine.
2.The respondent to pay the applicant compensation in the sum of $173.02 from 5 August 2014 per week and continuing pursuant to s 37 of the 1987 Act, with parties given liberty to apply.”
The employer has appealed.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.

ISSUES IN DISPUTE

Though experienced counsel appeared for the appellant at the arbitration, the appellant’s solicitor, Ms Monahan, has prepared the appeal. The appeal has purported to identify five grounds of appeal. However, the submissions in support only address two headings, the first relates to the proposed left knee replacement surgery and the second relates to the proposed treatment of the right wrist, right shoulder and cervical spine. That does not comply with Practice Direction No 6, which requires that submissions address each ground of appeal. That is most unsatisfactory and the profession is reminded, yet again, of the need to comply with Practice Direction No 6.
From the submissions, it appears that the following matters are in dispute on appeal, namely, with respect to the proposed knee replacement surgery, whether the Arbitrator erred in:
(a)     accepting Dr Hopcroft’s evidence despite his history being inconsistent with Dr Mobilia’s clinical notes;
(b)     finding that there was any additional pathology (in Mr Dwyer’s left knee) caused by the injury on 8 November 2012 when that extra pathology was caused by an arthritic condition;
(c)     finding that Mr Dwyer’s injury on 8 November 2012 resulted in increased pathology, which contributed to pathology in the right upper limb (wrist, right shoulder) and neck and the need for the proposed medical treatment in respect of same, and,
with respect to the other proposed treatment, whether the Arbitrator erred in:
(d)     failing to provide adequate reasons for preferring the opinion of Dr Hopcroft to that of Dr Mobilia and/or Dr Panjratan, and
(e)     accepting the evidence of Dr Hopcroft when the history he obtained (regarding Mr Dwyer’s pre-November 2012 symptoms in his right shoulder and right wrist) was inconsistent with Dr Mobilia’s clinical notes.
Last, with regard to the award of weekly compensation, Ms Monahan asserted that if Dr Mobilia’s opinion regarding the cause of Mr Dwyer’s symptoms were accepted, Mr Dwyer is not entitled to weekly compensation because his incapacity relates to his pre-existing conditions.
It is convenient to deal with the issues under three headings: proposed surgery to the left knee, proposed treatment for the right wrist, right shoulder and cervical spine and weekly compensation.

PROPOSED SURGERY TO THE LEFT KNEE

Submissions

Ms Monahan conceded that Mr Dwyer injured his left knee on 8 November 2012 and that he requires a left total knee replacement. She said that the issue was whether that surgery is “reasonable and necessary as a result of the injury of 8 November 2012”.
Ms Monahan acknowledged that, dealing with the 2009 knee symptoms, the Arbitrator correctly noted (at [26]) that Mr Dwyer had four days off work before returning to his normal duties as a cleaner and that, by June 2009, the symptoms in his left knee had completely resolved. However, she referred to Dr Mobilia’s clinical notes of 8 April 2011, which recorded “r thigh muscle pain nad [sic] re xr [sic] and us [sic] – consider knee and back”. Under “Reason for contact” the letters “oa” appear.
Ms Monahan submitted that the Arbitrator erred in finding that there was any additional pathology caused by the (left knee) injury of 8 November 2012. She contended that any extra pathology “was caused by the arthritic condition”, consistent with the report of Dr Khoury dated 20 May 2014, who said:
“I suspect that the external rotation deformity of the tibia has accelerated the progress of arthritis in the left knee. The lateral meniscal tear, which was degenerative in nature, has now progressed to frank arthritis.”
Ms Monahan submitted that, given the opinion Dr Khoury, and the history of osteoarthritis and other symptoms, the Arbitrator erred in rejecting the opinion of Dr Machart and in finding that the proposed left knee surgery is “reasonable and necessary as a result of the injury of 8 November 2012”.

Discussion and findings

Before dealing with Ms Monahan’s submissions, an important preliminary point must be noted. Both Ms Monahan and the insurer have approached the claim for medical expenses on the incorrect assumption that, to succeed, Mr Dwyer had to establish that the proposed treatment is “reasonable and necessary”. That is a fundamentally incorrect approach.
Section 60 states that if, as a result of an injury received by a worker, “it is reasonably necessary that” any medical or related treatment be given, the worker’s employer is liable to pay, in addition to any other compensation under the 1987 Act, the cost of that treatment. Treatment does not have to be “reasonable and necessary”, a much higher standard than the test of “reasonably necessary”, before compensation is payable (see Diab v NRMA Ltd [2014] NSWWCCPD 72). It is simply astonishing that a licensed insurer and a solicitor would not know and apply the correct test.
The relevance of the entry in Dr Mobilia’s notes on 8 April 2011 is unclear and, though Ms Monahan referred to it, she made no submission about it. That Mr Dwyer had pre-existing osteoarthritis in his knee was not in dispute and was acknowledged by all of the medical experts. Nor was it disputed that he injured his left knee in March 2009. His evidence, which the Arbitrator accepted, was that, by June 2009, the symptoms from that injury had “completely resolved” and that he did not suffer significant pain or other symptoms in his left knee until after the 2012 fall. That finding, which was consistent with the evidence, has not been challenged.
The submission that the Arbitrator erred in finding that there was additional pathology caused by the injury on 8 November 2012 seems to be based on the evidence from Dr Khoury to the effect that the lateral meniscal tear, which was degenerative, had progressed to “frank arthritis”. Ms Monahan’s submission cannot be accepted. The Arbitrator was aware of Dr Khoury’s evidence, noting (at [21]) the submissions made by the appellant’s counsel, Mr Parker, in respect of the pre-existing rotational deformity. However, that was not the only evidence the Arbitrator had to consider.
The Arbitrator accepted that Mr Dwyer had osteoarthritis in his left knee prior to the incident on 8 November 2012 and that the pre-existing rotational deformity may also have “contributed to the presentation and development of the pathology” ([41]). However, he (correctly) acknowledged that the evaluation of causation must include the possibility of multiple causes. He accepted Mr Dwyer’s evidence that, after the 2012 injury, he experienced the “onset and continuation of significant left knee complaints” ([41]). Those complaints and symptoms included pain, restriction in movement, instability and occasional swelling ([45]), which were not present before the 2012 injury.
Dr Hopcroft’s evidence was that Mr Dwyer suffered a major tear of the lateral meniscus of his left knee and, almost certainly, aggravated laxity of his anterior cruciate ligament in the incident on 8 November 2012. As a result, he said that Mr Dwyer had a significant valgus varus laxity. Dr Hopcroft added that the objective radiological findings (on MRI scan), when contrasted with the MRI scan of 3 April 2009, “clearly confirm significant further pathology dating from the incident of 08 November 2012 when the significant pain and associated symptoms developed”.
He concluded that Mr Dwyer required a left total knee joint replacement as a result of his injury on 8 November 2012 “having incurred a significant disruption of the lateral meniscus”. Dr Hopcroft was aware of Dr Khoury’s report and agreed with his opinion that an arthroscopy would now be of no benefit. Dr Hopcroft said that Mr Dwyer’s pain, restricted movement, recurrent swelling and difficulty “undermining” all activities of daily living “confirm[ed] that the total knee joint replacement was the only option”.
On this issue, that is, whether the proposed left knee total replacement surgery is reasonably necessary as a result of the 2012 injury, the Arbitrator rejected the evidence from Dr Machart and Dr Panjratan. He did so because they had not “engaged with” ([35]) all relevant medical investigations (the 2009 and 2013 MRI scans) or Mr Dwyer’s statement that his knee symptoms had settled by June 2009 and that it was “significantly symptomatic and continued to be significantly symptomatic after the 8 November 2012 injury event” ([35]). These findings were open on the evidence.

Noting that Mr Dwyer had recovered from the effects of the 2009 injury, that he had significant left knee complaints after the 2012 injury and, preferring the evidence of Dr Hopcroft to the evidence from Dr Panjratan and Dr Machart, the Arbitrator was satisfied that, notwithstanding the presence of osteoarthritis in the left knee, the 2012 injury materially contributed to the need for the total left knee replacement surgery. That finding was open on the evidence and Ms Monahan’s submissions have not pointed to any relevant error by the Arbitrator in his approach or conclusion.
This ground of appeal is not made out.

PROPOSED TREATMENT FOR THE RIGHT WRIST, RIGHT SHOULDER AND CERVICAL SPINE

Submissions

Ms Monahan submitted that the Arbitrator failed to give adequate reasons for preferring the opinion of Dr Hopcroft to that of Dr Machart and/or Dr Panjratan and that he erred in accepting the opinion of Dr Hopcroft, because his history was inconsistent with the clinical notes, which revealed prior injuries.
Dealing with the right wrist, Dr Hopcroft took a history that Mr Dwyer had not suffered from carpal tunnel compression syndrome in his right hand prior to the fall on 8 November 2012. In his opinion, it was the aggravation of his right wrist arthritis that “brought about the development of carpal tunnel compression syndrome due to the ongoing and gradually increasing swelling that he exhibited at the clinical examination today [13 August 2014] that has brought about that problem”. This history was inconsistent with Dr Mobilia’s clinical notes for 20 April 2012, which record “r hand paresthesia [sic] pain thum [sic] index middle finger”.
Dealing with the right shoulder, Ms Monahan submitted that Dr Hopcroft did not have a history of Mr Dwyer’s motorbike accident in March 2011, which prompted him to see Dr Mobilia on 30 March 2011. Dr Mobilia’s clinical notes on that day recorded that Mr Dwyer fell off a motorbike the previous day and, among other things, “right shoulder capsulitis rotator cuff pathology”. Dr Mobilia recommended shoulder exercises and digital heat. Ms Monahan noted that Mr Dwyer gave no evidence about the pre-2012 symptoms in his right wrist or his right shoulder.
In contrast to Dr Hopcroft’s history, Dr Machart reviewed Dr Mobilia’s clinical notes and based his opinion, which was that the proposed treatment was not reasonably necessary as a result of the 2012 injury, on all the medical evidence before him. Accordingly, the Arbitrator erred in not preferring the evidence of Dr Machart.

Discussion and findings

Whether, on this issue, the Arbitrator gave adequate reasons for preferring the evidence of Dr Hopcroft to that of Dr Machart and Dr Panjratan requires a detailed consideration of the decision.
The Arbitrator was satisfied that Mr Dwyer suffered an injury to his right wrist as a result of falling on 8 November 2012, and on later occasions, and that since 8 November 2012, he suffered an increase in his right wrist symptoms and that those symptoms had worsened with further falls consequent upon his knee giving way ([45]). The Arbitrator then referred (at [45]) to Dr Hopcroft’s history that Mr Dwyer injured his right wrist when he fell at a supermarket on 23 May 2013, when his left knee gave way and he fell forward. Dr Hopcroft also recorded that the injury to the right wrist in the fall on 8 November 2012 had resolved at that time, that is, by May 2013. (As will be seen below, there is real doubt as to whether Mr Dwyer injured his right wrist on 8 November 2012, and, if he did, whether that injury was of any consequence, but nothing turns on this potential error.)
The Arbitrator continued, at [46]–[47]:
“46.Dr Hopcroft makes further comment about the right wrist pathology being causally related to [Mr Dwyer] falling when he opines that the fall may have resulted in a [‘]hair line fracture of the radiostyloid process’ and ‘certainly aggravated the underlying pre[-]existent arthritis in his right wrist joint at the radioscaphoid articulation’.
47.Dr Hopcroft comments further that [Mr Dwyer] prior to the falling injury had never suffered from carpal tunnel compression syndrome in his right hand previously and ‘it is the aggravation to his right wrist arthritis that has brought about the development of the carpal tunnel compression syndrome due to the ongoing and gradually increasing swelling.’”
The Arbitrator was satisfied, based on Dr Hopcroft’s evidence, which he preferred to the evidence from Dr Machart and Dr Panjratan, that the instability in Mr Dwyer’s left knee after the 2012 injury caused or materially contributed to the left knee giving way on later occasions “resulting in [Mr Dwyer] suffering medical conditions affecting his right upper limb (wrist and shoulder) and neck” ([48]). In other words, he was satisfied that the further falls “materially contributed to other symptoms or pathology affecting [Mr Dwyer’s] right shoulder, wrist and neck as indicated by Dr Hopcroft” ([50]). These findings were open on the evidence and involved no error.
Dealing with the symptoms and pathology that resulted from the post 2012 falls, the Arbitrator (correctly) noted (at [50]) that the resulting medical conditions may include pathology in the nature of an aggravation of a pre-existing condition. He added (also correctly), that for an aggravation (of a disease) to be found, it was not necessary for there to be a worsening of the disease itself, but merely for an increase in the symptoms resulting from the disease (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch)).
Dealing specifically with the condition of Mr Dwyer’s cervical spine and right shoulder, the Arbitrator noted that Dr Hopcroft referred to an example of Mr Dwyer’s knee giving way in early April 2014 “causing him to fall and wrench his right shoulder and cervical spine”. Dr Hopcroft noted that Mr Dwyer was reviewed by Dr Mobilia for that injury (on 14 April 2014) complaining of neck pain and restriction of movement of his right shoulder.
Dr Mobilia referred Mr Dwyer for an x-ray and ultrasound of his right shoulder and a CT scan of his cervical spine. The ultrasound revealed “[h]eterogeneity of [the] subscapularis and supraspinatus probably relating to some chronic background tendinopathy” and that there “may be a small partial thickness insertional tears centred on the posterior fibres of the supraspinatus with subtle contour dipping”. The CT scan of the cervical spine showed significant degenerative changes.
Dr Hopcroft recorded that Mr Dwyer complained of “a marked compromise in range of movement of his right shoulder and ongoing pain in it”, which compared with a fully mobile left shoulder. He also noted that Mr Dwyer said that he had no loss of movement in his right shoulder prior to the fall in April 2014 when his knee gave way on him. Mr Dwyer also had pain in his neck and restriction in movement.
Based on the radiological investigations and his findings on examination, Dr Hopcroft concluded that Mr Dwyer had developed a tear in his right rotator cuff and required an intensive conservative management program by way of physiotherapy and treatment to his cervical spine.
Dr Hopcroft added the following, quoted by the Arbitrator at [52]:
“I believe that physiotherapy to the patient’s right shoulder and neck should be undertaken once or twice weekly for a period of eight weeks to see if significant improvement in neck function and right shoulder function can be achieved as the patient has neck pain and restriction in movement and as recorded significant restriction of movement and pain in his right glenohumeral joint.”
The Arbitrator expressly referred (at [53]) to Mr Parker’s submission that Dr Hopcroft’s opinion should be accorded little or no weight because he failed to detail a proper history. The Arbitrator noted, relying on Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451, that the Compensation Court did not have to determine cases with scientific certainty, but could be guided by its impressions. He added that a similar “interpretation” ([53]) applies to proceedings in the Commission. Both of these observations were correct.
The Arbitrator continued, at [54]:
“54.Overall I am satisfied the history relied upon by Dr Hopcroft is not in any substantial way inconsistent with the history provided by [Mr Dwyer] in his statements or in the clinical notes and records or as recorded by other medical practitioners. I am satisfied the history and understanding of [Mr Dwyer’s] situation reported by Dr Hopcroft indicates a proper basis and ‘fair climate’ upon which Dr Hopcroft could provide an appropriate opinion concerning causation relevant to the issues in this matter.”
The Arbitrator concluded, at [60]:
“… I am also satisfied later falls of [Mr Dwyer] were contributed to by the index injury [the 2012 injury] and those falls have contributed to [Mr Dwyer] suffering medical conditions affecting his right wrist, shoulder and neck for which medical treatment is reasonably necessary.”
While it is accepted that the Arbitrator gave reasons for rejecting the evidence from Dr Machart and Dr Panjratan concerning the left knee injury and its consequences, the above review reveals that he gave no reasons for rejecting their evidence with regard to the proposed treatment for the right wrist, right shoulder and cervical spine. That was an error. As a result, the issue of whether the proposed treatment for Mr Dwyer’s right wrist, right shoulder and cervical spine is reasonably necessary as a result of the 2012 injury to the left knee must be re-determined and the parties have consented to me conducting that re-determination. Before doing so, I will first consider and determine Ms Monahan’s submission that it was not open to the Arbitrator accept Dr Hopcroft’s evidence because of the defective history.
The Arbitrator’s reference (at [54], quoted at [59] above) to Dr Hopcroft’s history providing a “fair climate” upon which the doctor could express his opinion was a reference to Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510. That case considered the situation where facts stated in an expert’s report do not completely correspond with the facts proved at trial. It was held that, in such a situation, where there is a “fair climate” for the acceptance of the expert’s opinion, the opinion may be accepted notwithstanding a discrepancy between the facts proved and the facts assumed by the expert.
This situation has been more recently considered by the Court of Appeal, dealing with expert evidence in the Commission, in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock). Beazley JA (as her Honour then was, Giles and Tobias JJA agreeing) said (at [82]) there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita [(Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705] to be set out in each and every report”.
Her Honour referred (at [77]–[78]) to the following statement by Spigelman CJ in Australian Securities and Investments Commission v Rich [2005] NSWCA 152 at [105] as “clearly correct”. The Chief Justice said:
“Although expressed in terms of ‘usefulness’, the starting point for Heydon JA’s detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention – the ‘prime duty’ – is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.” (emphasis added by Beazley JA)
Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]).
Applying this test to the present case, it was open to the Arbitrator to accept Dr Hopcroft’s opinions. That is so even though Dr Hopcroft did not refer to Dr Mobilia’s note on 20 April 2012, which referred to Mr Dwyer having symptoms in his right hand, or the note on 30 March 2011, which referred to Mr Dwyer having right shoulder symptoms. As Mr Hickey submitted, the note on 20 April 2012 did not refer to Mr Dwyer suffering from carpal tunnel compression syndrome and was therefore not inconsistent with Dr Hopcroft’s history that Mr Dwyer had never (so far as he was aware) suffered from that condition. Further, and more importantly, given the issue in the present case, there is no evidence that the symptoms in April 2012 were of sufficient severity to warrant surgery, or that surgery was recommended (or even a possibility) at that time.
Dr Mobilia’s notes are instructive on this issue. On 14 August 2013, he recorded:
“right hand cast been off for 1 week was on for 5 weeks
considerable swelling over the distal radius heat [sic, head] and pain
rom decline extension wrist 60 degrees
right wrist opo [sic] for 5/7 pain on dorsiflexion
examination tender lump radial aspect
clinically ganglion
wrist exercises demonstrated to patient
further issue patient developed paresthesia [sic] – over right thumb index finger and middle finger after fall in may [sic].
examination positive tinsels [sic] and phelans [sic]
plan steroid
Reason for contact:
Probable carpal tunnel syndrome.” (emphasis in bold included in original)
Given Dr Mobilia’s reference to numbness “after the fall in [M]ay” 2013, and given the absence of any other reference to it in Dr Mobilia’s notes between April 2012 and August 2013, it is reasonable to conclude that the numbness referred to in April 2012 had resolved at, or shortly after, that time. Unlike the entry in April 2012, the entry in August 2013 was the first reference to a possible diagnosis of carpal tunnel syndrome. Moreover, the reference to probable carpal tunnel syndrome in August 2013 was in the context of significant right wrist symptoms, which had been caused by the fall in May 2013.
Further, referring to Mr Dwyer’s (right) wrist symptoms, Dr Mobilia recorded on 9 September 2013 that Mr Dwyer had “nil issue with [his] wrist prior to [the] fall”. This was a reference to the May 2013 fall. Dr Mobilia added that Mr Dwyer would probably require referral to a hand surgeon and that “carpal tunnel syndrome should be consifered [sic] numbness wake at night”. Thus, it is tolerably clear from Dr Mobilia’s notes that the symptoms that supported the diagnosis of carpal tunnel syndrome arose directly as a result of the May 2013 injury to the right wrist, which was caused by the instability in Mr Dwyer’s left knee due to the 2012 injury.
It is clear beyond doubt that the symptoms upon which Dr Hopcroft relied to make his diagnosis of carpal tunnel compression syndrome arose after the May 2013 fall, which caused significant trauma to the right wrist. It follows that, given the additional entries in Dr Mobilia’s notes, Dr Hopcroft’s failure to refer to the notes from April 2012 is of no consequence. Even if it were accepted that Mr Dwyer had symptoms consistent with carpal tunnel syndrome in April 2012, and that is by no means certain, those symptoms were not sufficient to warrant surgery. The need for the proposed surgery has resulted from the significant symptoms caused in the May 2013 fall.
Dealing with the reference to shoulder symptoms in Dr Mobilia’s notes on 30 March 2011, Mr Hickey made the valid point that there was no further reference to shoulder symptoms in Dr Mobilia’s notes until after the fall in April 2014, which fall also resulted from the 2012 injury to the left knee. Given the lack of complaint of shoulder symptoms in the three years between March 2011 and the fall in April 2014, and the absence of evidence of any significant pathology in 2011, Dr Hopcroft’s failure to refer to the 2011 shoulder symptoms is also of no consequence.
It follows that, in the circumstances, and applying Hancock, it was open to the Arbitrator to accept Dr Hopcroft’s evidence as to the need for the proposed treatment for Mr Dwyer’s right wrist, right shoulder and cervical spine being reasonably necessary as a result of the 2012 injury. However, the question remains whether that evidence should be preferred to the evidence of Dr Machart and Dr Panjratan, a question the Arbitrator did not consider. This requires a careful consideration of their evidence and the parties’ submissions.
Dr Machart took a history that Mr Dwyer injured his right wrist at the time of the 2012 injury. That injury caused pain at the base of the thumb, loss of movement at the base of the thumb, pins and needles in the thumb, index and middle fingers, and weakness. According to Dr Machart’s history, these symptoms progressively increased in severity to the extent where he was, at the time of Dr Machart’s examination on 16 February 2015, dropping things.
I note that Dr Hopcroft’s history in his first report was that the right wrist symptoms caused by the 2012 injury had resolved by the time of the fall in May 2013. However, neither Dr Mobilia’s notes nor Mr Dwyer’s statement refer to him having injured his right wrist on 8 November 2012. Mr Dwyer merely said that he fell forward onto his left knee and right hand. Therefore, the history that Mr Dwyer injured his right wrist on 8 November 2012, as recorded by Dr Machart and Dr Hopcroft, and found by the Arbitrator, was incorrect.
Mr Dwyer told Dr Machart that he had never experienced similar symptoms of numbness before the 2012 injury and could not explain why Dr Mobilia had documented symptoms of pins and needles in the “thumb and middle finger territory of the median nerve, in April 2011”. Dr Machart recorded that Mr Dwyer reported subsequent falls. He noted that Dr Mobilia recorded a wrist injury having occurred one week prior to 9 May 2013, when Mr Dwyer’s left knee gave way causing him to fall onto his wrist. In 2014, Mr Dwyer injured his right shoulder when he fell at home, because of his left knee giving way. Swimming was recommended as exercise. His shoulder improved, but did not completely recover. Dr Machart also took a history of a further fall in 2014, in which Mr Dwyer hurt his neck. He saw his doctor and was recommended “pool therapy”.
So far as is relevant to the issue I am considering under this heading, Dr Machart diagnosed Mr Dwyer to have impingement in his right shoulder, chronic osteoarthritis and carpal tunnel syndrome in his right wrist, and cervical spondylosis. Under “Attributability”, Dr Machart said:
“There are features of chronic osteoarthritis in the right wrist. There is carpal tunnel syndrome. The Carpal tunnel symptoms were evident in April 2012, as documented by the GP reports, that is before the injury in November 2012. Injury to the right wrist causing carpal tunnel syndrome in November 2012 was not documented by the doctors. The documentation was before the injury and subsequently in 2013 after a separate fall, which in my opinion, did not have much to do with the impact of the injury on 08/11/2012.
Similarly, injuries to the right shoulder and/or to the cervical spine were the product of osteoarthritis rather than [the] product of the injury on 08/11/2012.
The overall pathology is degenerative. …
The suggestion of cascading pathology involving the:
–    left knee
–    right shoulder
–    right wrist
–    cervical spine
all as a result of the fall, hitting the front of the knee on 08/11/2012, is not consistent.”

Under “consistency of presentation”, Dr Machart said:
“There is consistency in the pathology. There are inconsistent features in the report of no symptoms in the right wrist before the injury, which is contrary to medical documentation.
There is inconsistency in report of added symptoms in other areas, reported as a result of falls. This notion of cascading pathology falls outside of the parameters of common traumatic pathology seen by practising orthopaedic surgeons.”
Under “REASONS FOR ASSESSMENT”, Dr Machart said:
“It is highly improbable that the falls caused additional pathology in other areas, wrist, shoulders, neck. No additional pathology was evident radiologically. Pre-existing carpal tunnel syndrome and osteoarthritis were evident in the wrist.”
Dr Machart concluded that the proposed treatment that is the subject of the claim was reasonably necessary, but not as a result of the 2012 injury.
As noted earlier, Dr Machart was correct to state that “[i]njury to the right wrist causing carpal tunnel syndrome in November 2012 was not documented by the doctors”. There is no evidence that Mr Dwyer injured his right wrist in the November 2012 incident. The evidence is that Mr Dwyer fell onto his left knee and right hand. Dr Mobilia’s first reference to right wrist symptoms was on 23 April 2013, when he recorded that Mr Dwyer’s left leg had been giving way and “recently injury to right wrist”. The significance of that entry has not been explained in the evidence nor referred to by the parties. Dr Mobilia recorded no detailed complaints about Mr Dwyer’s right wrist, and recommended no treatment, until after the fall in May 2013. (As the April 2012 fall also resulted from the instability in Mr Dwyer’s left knee caused by the 2012 injury, nothing turns on the failure to deal with it. In any event, the most significant problems with Mr Dwyer’s right wrist were caused in the May 2012 fall.)
Dealing with the right wrist, Dr Hopcroft recorded in his first report, dated 11 July 2013, that Mr Dwyer had pain in the wrist for two weeks following the May 2013 fall and that it became quite swollen. Mr Dwyer saw Dr Mobilia after the May 2013 fall and had an x-ray on 5 June 2013, which revealed an old ulnar styloid process and triquetrals fracture and moderately advanced radioscaphoid joint osteoarthritis. A linear lucency in the distal radius was of “uncertain significance”. It could relate to Mr Dwyer’s prior wrist injury (which injury was being referred to is unclear), however, if Mr Dwyer had had a recent fall or significant tenderness at the site, then an acute fracture was possible.
Dr Mobilia placed Mr Dwyer’s right arm in a short arm plaster cast, which was in place when Dr Hopcroft saw him on 11 July 2013. As a result, Dr Hopcroft was unable to examine the right wrist and made no further comment about it. However, he did say that “[a]s a result of the instability of [Mr Dwyer’s] knee he has also suffered a probable transverse minimally displaced fracture of the left distal radius according to the x-ray of 05 June 2013”. As the instability in Mr Dwyer’s left knee did not commence until after the 2012 injury, the cause of the fracture could only have been the fall in either April or May 2013 and not the fall in November 2012. (Given the symptoms complained of after the May 2013 fall, as recorded by Dr Mobilia, the fracture is more likely to have occurred in that fall.)
In his report of 13 August 2014, Dr Hopcroft said that there was no doubt that Mr Dwyer injured his right wrist in the fall on 8 November 2012 and that it was thought that he may have suffered a hair line fracture of the radial styloid process. Both those statements were inconsistent with the evidence from Dr Mobilia and Mr Dwyer, neither of whom referred to a right wrist injury on 8 November 2012. They were also inconsistent with Dr Hopcroft’s first report, which recorded that the injury to the right wrist in the November 2012 fall had resolved (by May 2013). Therefore, Dr Hopcroft’s statement that the November 2012 fall aggravated the underlying pre-existent arthritis in the right wrist was incorrect.
On reading both Dr Hopcroft’s reports together, and noting the evidence from Mr Dwyer and Dr Mobilia, the only reasonable conclusion is that Mr Dwyer injured his right wrist when he fell (because of the instability in his left knee) in April or May 2013. Of those falls, the May 2013 fall seems to have been by far the more serious and the most relevant. It follows that when Dr Hopcroft spoke of Mr Dwyer aggravating the pre-existing arthritis in his right wrist in the November 2012 fall, he was in fact referring to the May 2013 fall. Nothing turns on this error. It is simply a matter of Dr Hopcroft attributing the right wrist symptoms to the November 2012 injury when in fact they almost certainly resulted from the fall in May 2013. Dr Machart made a similar error.
Dr Hopcroft went on to say that during the delay in undergoing the arthroscopic examination of his left knee, Mr Dwyer started to notice paraesthesia and numbness on the palmar aspect of his right thumb, index and long finger and partly on the radial side of the “left [sic] finger, the classic distribution of the median nerve and without doubt confirming an underlying diagnosis of the development of carpal tunnel compression syndrome as a result of the fall of 8 November 2012”. His symptoms were worse at night, which Dr Hopcroft said was a classic feature of carpal tunnel compression syndrome.
Dr Hopcroft added that Mr Dwyer had never suffered from carpal tunnel compression syndrome in his right hand prior to the trip and fall of 8 November 2012 and it was the aggravation to his right wrist arthritis that brought about the aggravation of the carpal tunnel compression syndrome, due to the ongoing and gradually increasing swelling that he exhibited at the clinical examination on 13 August 2014 that brought about that problem. As explained earlier, in the circumstances of the case, Dr Hopcroft’s failure to refer to Dr Mobilia’s April 2012 note is of no consequence.
Dr Hopcroft concluded, with regard to the right wrist symptoms:
“It is my opinion that with or without a wrist fracture being incurred in the fall of 8 November 2012, the patient has certainly aggravated the established radioscaphoid osteoarthritis and the aggravation has been to the degree that with ongoing and significant right wrist swelling and restriction in movement, he has developed what was shown clinically today, namely … a right carpal tunnel compression syndrome.”
He recommended carpal tunnel decompression surgery to Mr Dwyer’s right wrist if he was to see a restoration of normal right median nerve function with that syndrome having developed since the fall of 8 November 2012. Though it would have been more accurate to refer to the development of carpal tunnel syndrome since the fall in May 2013, as explained earlier, nothing turns on that error.
As Mr Hickey submitted at the arbitration, Dr Machart’s approach on this issue was fundamentally flawed and his opinion cannot be accepted. His statement that the 2013 fall “did not have much to do with the impact of the injury on 08/11/2012” demonstrated a misunderstanding of the issues. The Arbitrator found, and it has not been challenged on appeal, that the May 2013 fall resulted from the injury to the left knee received in the 2012 injury. Therefore, if the condition of the right wrist has resulted from the May 2013 fall, and if the proposed treatment is reasonably necessary as a result of the 2012 injury, compensation is payable.
Dr Machart’s statements that the suggestion of “cascading pathology” involving the left knee, right shoulder, right wrist and cervical spine “all as a result of the fall, hitting the front of the knee on 08/11/2012, is not consistent” and that “[t]his notion of cascading pathology falls outside the parameters of common traumatic pathology seen by practising orthopaedic surgeon” reveal a misunderstanding of the causation test in workers’ compensation cases and a misunderstanding of the nature of Mr Dwyer’s case.
Mr Dwyer’s claim is not based on the “notion of cascading pathology”. It is based on longstanding and accepted principles of compensation law that a worker is entitled to recover compensation for the effects that have resulted from a compensable s 4 injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796). That is a straightforward question of causation. That issue has been determined in favour of Mr Dwyer and Dr Machart’s comments about cascading pathology indicate that he failed to consider the correct question. This renders his opinion of no weight.
Further, Dr Machart said that it was improbable that the falls “caused additional pathology” in Mr Dwyer’s wrist, shoulders and neck, no additional pathology being shown radiologically. This approach failed to acknowledge that the treatment proposed for Mr Dwyer is to address the symptoms that have resulted from the 2012 injury. As discussed below, when dealing with Dr Panjratan’s evidence, it is not necessary that the falls caused the degenerative changes present in Mr Dwyer’s neck and shoulder. It is sufficient that the need for the proposed treatment has resulted from the 2012 injury. Clearly, it has. So too has the need for the proposed carpal tunnel surgery.
Turning to Dr Panjratan’s evidence, in his report of 26 May 2014, Dr Panjratan took a history that Mr Dwyer hurt his right wrist in the November 2012 fall and that his problems with his wrist were related to that fall. Though Dr Panjratan took a history that Mr Dwyer’s left knee “is giving way”, he took no history of the May 2013 fall. He did record the April 2014 fall, when Mr Dwyer’s left knee gave way and he fell to the ground hitting his right shoulder. Mr Dwyer saw his general practitioner who prescribed exercises for the shoulder. X-rays revealed degenerative changes of the glenohumeral and acromioclavicular joints and an ultrasound revealed chronic background tendinopathy and partial thickness insertion tears of the supraspinatus.
After setting out his findings on examination, reviewing relevant x-rays and commenting on the left knee injury, Dr Panjratan was asked a series of questions in relation to the “alleged right wrist injury”. Those questions and his answers are set out below:
“1. Based on your assessment, do you believe that Mr Dwyer has sustained an injury to his right wrist as a result of the fall reported to have been due to left knee instability?
Based on my assessment, I do not believe that Mr Dwyer has sustained an injury to his right wrist as a result of the fall reported to have been due to left knee instability.
Mr Dwyer has pre-existing degenerative changes in the wrist which were due to become symptomatic sooner or later.
2. Please provide your diagnosis for the right wrist injury. In your opinion, is the current diagnosis of the right wrist reasonably attributable to the incident of 8 November 2012?
Mr Dwyer has degenerative arthritis in the wrist.
In my opinion the current diagnosis of the right wrist is not attributable to the incident of 8 November 2012.
3. Is the current presentation consistent with the natural progression of degenerative conditions as identified in the CT of the right wrist performed on 11 September 2013? Please discuss.
The current presentation is consistent with the natural progression of degenerative conditions as identified in the CT of the right wrist performed on 11 September 2013.
He has degenerative changes which were due to become symptomatic sooner or later. The cause of the degenerative changes is uncertain. It could be connected to the MVA in which he suffered a compound fracture of the tibia which reuired [sic] internal fixation and bone grafting
4. In consideration of the mechanism of injury, and given the length of time since the incident, would you have expected any soft tissue injury or aggravation of Mr Dwyer’s underlying degenerative conditions to have ceased by this time?
In consideration of the mechanism of injury, and given the length of time since the incident I have expected any soft tissue injury or aggravation of Mr Dwyer’s underlying degenerative conditions to have ceased by this time.
5. What treatment would you recommend for addressing the right wrist symptoms, if you believe it is reasonably attributable of [sic] the initial workplace injury? Please indicate frequency & duration of any suggested treatment and indicate if this treatment is likely to result in improved functional capacity.
Regarding the right wrist symptoms, I do not believe any conservative treatment is likely to help. In my opinion he requires a fusion of the wrist.” (emphasis included in original)
He was also asked a series of questions in relation to the “alleged right shoulder/cervical spine injury”. Those questions and his answers are set out below:
“1. Based on your assessment, do you believe that Mr Dwyer has sustained an injury to his right shoulder and/or cervical spine as a result of the fall reported to have been due to left knee instability?
Based on my assessment, I do not believe that Mr Dwyer has sustained an injury to his right shoulder and/or cervical spine as a result of the fall reported to have been due to left knee instability.
It seems strange that he should have knee instability two years after the injury, and there were no episodes of instability before. I find this a bit suspicious.
2. Please provide your diagnosis for the right shoulder and/or cervical spine. In your opinion, is the current diagnosis of the right shoulder and/or cervical spine reasonably attributable to the incident of 8 November 2012?
Mr Dwyer has degenerative changes in the shoulder and AC joints. He also has severe degenerative changes in the neck as seen on the CT.
In my opinion, the current diagnosis of the right shoulder and/or cervical spine is not reasonably attributable to the incident of 8 November 2012.
The cause of the degenerative changes is uncertain. It could be due to the natural process of ageing. It could be from the physical work he has done all his life and possible other falls off the bike not severe enough to cause fractures but enough to cause arthritic changes from falls on the outstretched hand
This is not attributable to the injury of 8 November 2012 because he has become symptomatic only lately.
3. Is the current presentation consistent with the natural progression of degenerative conditions as identified in the imaging of the right shoulder performed on 8 April 2014 and the cervical spine performed on 29 April 2014? Please discuss.
The current presentation is consistent with the natural progression of degenerative conditions identified in the imaging of the right shoulder performed on 8 April 2014 and the cervical spine performed on 29 April 2014.
4. In consideration of the mechanism of injury, and given the length of time since the incident, would you have expected any soft tissue injury or aggravation of Mr Dwyer’s underlying degenerative conditions to have ceased by this time?
In consideration of the mechanism of injury, and given the length of time since the incident, I would have expected any soft tissue injury or aggravation of Mr Dwyer’s underlying degenerative conditions to have ceased by this time
5. What treatment would you recommend for addressing the right shoulder/cervical spine symptoms, if you believe it is reasonably attributable to the initial workplace injury? Please indicate frequency and duration of any suggested treatment and indicate if this treatment is likely to result in improved functional capacity.
I would recommend physiotherapy and [a] set of home exercises for the shoulder/cervical spine.
The cervical spine would need image guided injections. If symptoms persist he would need foraminotomy and decompression
He could eventually need right shoulder replacement
No frequency and duration of treatment can be given, it will depend upon his progress.
The physiotherapy would not result in improved functional capacity.
The replacement has its own limitations with regard to physical function.” (emphasis included in original)
Dr Panjratan’s opinions are fundamentally flawed and cannot be accepted. As Mr Hickey submitted at the arbitration, in respect of the right wrist, right shoulder and cervical spine, Dr Panjratan was mistaken as to the relevant causation test. He assumed that, for Mr Dwyer to succeed, those conditions had to be demonstrated to be workplace injuries. That is, that they were injuries as defined in s 4 of the 1987 Act. Apart from the initial injury to the right hand, which appears to have settled, if it occurred at all, the conditions for which medical treatment is sought (apart from the left knee) are consequential conditions that are said to have resulted from the 2012 injury. They are not “injuries” as defined.
That Dr Panjratan did not consider the correct question is apparent from his statement that he did not believe Mr Dwyer sustained “an injury” to his right wrist as a result of the fall reported to have been due to the left knee instability. Dr Panjratan did not identify the fall to which he was referring. He did not have a history of the May 2013 fall, in which Mr Dwyer suffered the most significant injury to his right wrist. Therefore, Dr Panjratan’s answer was of no assistance and no weight.
The statement that the degenerative arthritis in the right wrist was not “attributable to the incident of 8 November 2012” further demonstrates the error in Dr Panjratan’s approach. That is not Mr Dwyer’s case. His case, as supported by Dr Hopcroft, is that the need for the recommended surgery to the wrist has resulted from the injury to the wrist sustained when he fell because his left knee gave way in May 2013. Dr Panjratan failed to consider that question.
Dr Panjratan’s answer dealing with the “mechanism of injury” is of no assistance. Without proper identification of the injury to which this question and answer relates, Dr Panjratan’s answer is meaningless. His reference to the length of time since the incident seems to be a reference to the length of time since November 2012. This further highlights Dr Panjratan’s incorrect approach. Mr Dwyer did not injure his right wrist in November 2012. The relevant injury occurred in the May 2013 fall and his wrist has remained symptomatic since that time.
Dealing with the symptoms in Mr Dwyer’s right shoulder and cervical spine, which have resulted from the fall in April 2014, Dr Panjratan asserted that Mr Dwyer has sustained no injury to his right shoulder or cervical spine in that fall. However, as with the right wrist, he has failed to appreciate that what is being considered is not a s 4 injury, but a condition that has resulted from a s 4 injury. That condition is the aggravation of degenerative changes. His assertion that it was “suspicious” that Mr Dwyer should have instability in his left knee two years after the 2012 injury failed to appreciate that Mr Dwyer complained to Dr Mobilia in February 2013 of “regular giving way” (in his left knee) and falls because of symptoms in his left knee. Those symptoms continued into 2014 because Mr Dwyer’s knee had not been properly treated because the insurer refused to pay for the arthroscopy recommended by Dr Khoury.
Similarly, Dr Panjratan’s statement that the “current diagnosis of the right shoulder and/or cervical spine is not reasonably attributable to the incident of 8 November 2012” failed to address the correct question. As discussed at [52] above, medical conditions that result from a s 4 injury may include pathology in the nature of an aggravation of a pre-existing condition. When dealing with a consequential condition, it is not necessary that employment be a substantial contributing factor to the consequential condition or, in the case of a disease, that it be the main contributing factor to the contraction or aggravation of the disease. All that is necessary is that the condition has resulted from the accepted s 4 injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd [2008] NSWWCCPD 53 at [19]–[25]).

Further, for a relevant aggravation to be found in a case such as the present, it is not necessary for there to be a worsening of the disease itself, but merely for an increase in the symptoms resulting from the disease (Semlitch). Nor is it necessary, in a claim for the cost of medical treatment of a consequential condition, that the degenerative changes be “reasonably attributable” to the s 4 injury. All that is necessary is that the treatment be reasonably necessary as a result of the injury. In the present case, accepting Dr Hopcroft’s evidence, that test is satisfied. That is because the proposed treatment is reasonably necessary to treat symptoms that have resulted from the 2012 injury and the consequential falls when Mr Dwyer’s left knee gave way. Rather than considering this issue, Dr Panjratan focused on the cause of the degenerative changes.
In circumstances where, in the years leading up to the April 2014 fall, Mr Dwyer was asymptomatic in his neck and right shoulder, and thereafter has suffered continuing problems with both areas, the compelling conclusion is that his symptoms have resulted from the 2014 fall, which itself resulted from the accepted injury to the left knee in 2012.
Dr Panjratan’s consideration of the “mechanism of injury” was also of no assistance. Though it is unclear, he seems to have again focused on the 2012 injury and ignored the consequences of the subsequent falls that have resulted from that injury. For the above reasons, Dr Panjratan’s opinion is of no probative value.
It follows from the above analysis that although the Arbitrator erred in not giving reasons for rejecting the evidence of Dr Machart and Dr Panjratan, having re-determined that issue, that error makes no difference to the outcome.
This ground of appeal also fails.

WEEKLY COMPENSATION

Submissions

Ms Monahan submitted that if Dr Machart’s opinion regarding the cause of Mr Dwyer’s symptoms were accepted, then Mr Dwyer is not entitled to weekly payments because his incapacity relates to his pre-existing conditions, including osteoarthritis.

Discussion and findings

As, for reasons given above, Dr Machart’s opinion has not been accepted, it follows that Ms Monahan’s submission on Mr Dwyer’s entitlement to weekly compensation cannot be accepted and Mr Dwyer is entitled to the weekly compensation awarded by the Arbitrator.

DECISION

For the reasons given by the Arbitrator, and the additional reasons in this decision, the Arbitrator’s determination of 15 October 2015 is confirmed.

Bill Roche
Acting President

25 January 2016

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

[2016] NSWWCCPD 5

25 January 2016

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Assessment of Medical Evidence

Causation

Compensatory Damages

Aggravation of Pre-existing Condition