Webber v State of NSW - [2015] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Webber v State of NSW [2015] NSWWCCPD 23
APPELLANT:	Joanne Pauline Webber
RESPONDENT:	State of NSW (wrongly sued as the Department of Education and Training)
INSURER:	Allianz Australia Insurance Ltd
FILE NUMBER:	A1-3892/14
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	19 November 2014
DATE OF APPEAL DECISION:	20 March 2015
SUBJECT MATTER OF DECISION:	Appeal filed out of time; extension of time to appeal; s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; whether demonstrable and substantial injustice if time to appeal not extended; failure to comply with Practice Direction No 6; failure to properly identify proposed grounds of appeal; medical treatment for consequential condition; s 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bell Lawyers
Respondent:	Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL:	1. The respondent employer’s name is amended to State of NSW. 2. The application to extend time to appeal is refused. 3. No order as to costs.

INTRODUCTION

The worker requires surgery to her left wrist. It is alleged that the condition for which the surgery is required results from an accepted injury to the right wrist and is due to favouring the right wrist. The worker also suffers a constitutional abnormality in both wrists, namely an abnormally long ulna. The proposed appeal concerns the Arbitrator’s finding that the worker failed to establish that the condition in the left wrist resulted from the accepted injury to the right wrist.
Due to an oversight by the worker’s legal representatives, the appeal was not lodged within the time prescribed by s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appeal is out of time by six days and therefore the worker requires leave to extend the time to appeal.
For the reasons explained below, the worker cannot establish that to lose the right to appeal would work a demonstrable and substantial injustice: Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules). Therefore, the application to extend time to appeal is refused.

BACKGROUND

The appellant, Joanne Webber, was employed by the Department of Education and Communities as a special needs teacher’s aide.
On 7 May 2010, Ms Webber was escorting two special needs children. She was holding each by the hand. The child Ms Webber was holding with her right hand pulled away and behind her, as a result of which she suffered a significant twisting and hyperflexion injury to her right wrist. That injury is not in dispute.
As a result of the injury to the right wrist, Ms Webber had surgery on 21 October 2010 and 19 August 2011. It is alleged that, from the date of the original injury, Ms Webber favoured her right hand resulting in overuse of her left hand, culminating in symptoms in the left wrist which now requires treatment including surgery.
On 8 January 2014, Dr Nicholas Smith, Ms Webber’s treating specialist, sought approval from the respondent’s insurer, Allianz Australia Insurance Limited (Allianz) to undertake an arthroscopy, ulnar shortening osteotomy, carpal tunnel release and extensor synovectomy on Ms Webber’s left wrist. The surgeon’s fee was estimated at $6,459.39.
On 27 February 2014, Allianz issued a notice pursuant to s 74 of the 1998 Act. Allianz denied liability for the proposed treatment to the left wrist for the following reasons:
“• your left wrist injury is not a workplace injury within the meaning of Section 4 of the Workers Compensation Act 1987 (the 1987 Act) and/or Section 9A of the 1987 Act.
· you are not prevented from working because of a workplace [sic] Section 33 of the 1987 Act.
· you do not require treatment for a workplace injury: Section 60 of the 1987 Act.”
On 29 July 2014, Ms Webber filed an Application to Resolve a Dispute in the Commission. Ms Webber sought medical, hospital and rehabilitation expenses for proposed surgery to the left wrist, the condition in the left wrist being secondary to the original right wrist injury on 7 May 2010.
On 20 August 2014, the respondent filed a Reply denying liability. It relied on the grounds stated in its s 74 notice of 27 February 2014. It was not correct to deny that Ms Webber suffered an injury within the meaning of s 4 of the 1998 Act. That was not the allegation. The claim was that, as a result of the injury to the right wrist, Ms Webber developed symptoms in her left wrist which required treatment by way of surgery. (I note that had the alleged overuse occurred at work, it might have given rise to a s 4 injury.)
The matter was listed before a Commission Arbitrator on 13 November 2014. Mr Morgan of counsel appeared for Ms Webber and Mr Baran of counsel appeared for the respondent. The Arbitrator received extensive submissions from both parties. No oral evidence was called. At the conclusion of the hearing the Arbitrator reserved his decision.
On 14 November 2014, the Arbitrator delivered an oral decision, a transcript of which has been provided to the parties. The Arbitrator concluded that Ms Webber suffers from an underlying constitutional condition. He was not persuaded that on the balance of probabilities, the treatment proposed in respect of the left wrist resulted from the undisputed injury to her right wrist. Accordingly, he entered an award for the respondent.
The Arbitrator issued a Certificate of Determination on 19 November 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
1.       The applicant suffered injury to her right wrist arising out of and in the course of her employment on 7 May 2010.
2.       It has not been established that any medical condition of the applicant’s left wrist results from the injury of 7 May 2010.
3.       In respect of the claim for the cost of surgery to the left wrist proposed by Dr Smith there is an award [for] the respondent.”
Ms Webber has applied to extend the time to appeal to allow her to challenge the Arbitrator’s determination with regard to the proposed treatment for the left wrist.

PRELIMINARY MATTERS

Parties

The respondent employer was wrongly sued as “Department of Education & Training”. On 12 March 2015, the Commission issued a direction to the parties seeking advice as to the correct legal entity of the employer and submissions as to whether the Government Sector Employment Act 2013 (GSE Act) applies to the employer.
On 12 March 2015, the respondent employer’s legal representative submitted that the correct legal entity for the respondent employer, for the purpose of these proceedings, is “State of NSW” pursuant to s 5 of the Crown Proceedings Act 1998.
By consent the respondent seeks an order to amend the pleadings to correctly describe the employer by deleting “Department of Education & Training” and substituting “State of NSW”. I so order.

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
There is no dispute that the quantum in issue in this appeal exceeds $5,000 and therefore the threshold in s 352(2)(a) of the 1998 Act is satisfied.

Time

An appeal from the decision of an Arbitrator can only be made within 28 days after the making of the decision appealed against (s 352(4)). The Certificate of Determination was issued by the Arbitrator on 19 November 2014.
The last day for the filing of the appeal was 17 December 2014. The present appeal was not filed until 23 December 2014, six days out of time.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Rules which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The reason the appeal was not filed within time was because of an administrative oversight by counsel, Mr Morgan, who had been instructed to prepare an appeal well before the time limit expired. Mr Morgan submits that due to a combination of factors, appearing in a District Court matter for over five days, within the appeal period, and a heavy workload heading into the end-of-term, he had overlooked the preparation of the submissions.
The respondent opposes an extension of time being granted on the basis that the explanation provided is unsatisfactory. However, the respondent further submits that, being a model litigant, it cannot point to any perceived or actual prejudice.
Mr Morgan, who prepared the submissions on behalf of Ms Webber on the appeal, acknowledges that an administrative oversight is not an exceptional circumstance. However, he submits that the question of whether strict compliance with the time limits would work an injustice must also be considered.
In Gallo v Dawson [1990] HCA 30; 64 ALJR 458 McHugh J observed that the following factors are relevant to that enquiry:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or the refusal of the application to extend time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      the fact that, upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
In the circumstances of this case there is nothing controversial about those factors listed above except for (e), the prospects of the applicant succeeding in the appeal. In order to reach a view with respect to that matter, it is necessary to consider the evidence and the Arbitrator’s findings. For the reasons explained below, the appeal cannot succeed and therefore there is no injustice in refusing the application to extend time to appeal. It follows that the application to extend time is refused.

THE EVIDENCE

Joanne Pauline Webber

Following her injury on 7 May 2010, Ms Webber came under the care of Dr Smith, an orthopaedic surgeon. In October 2010 Dr Smith carried out an arthroscopic debridement of the right wrist. Further surgery was carried out in August 2011 which included a shortening osteotomy of the ulna in the right wrist.
For most of the time between May 2010 and April 2013, Ms Webber undertook restricted duties or administrative duties at work. There were other occasions when Ms Webber was totally incapacitated either while recuperating from surgery or because of temporary aggravations.
Between May 2010 and October 2010, Ms Webber undertook work which included bookbinding, which required the use of the left hand to operate a lever to perforate holes in paper. These duties Ms Webber described as quite strenuous and repetitive. She also did a large amount of laminating, which required feeding sheets into a laminator with her left hand. In addition she performed cleaning duties.
Ms Webber stated that when performing administrative duties she used her left arm for most activities because of the restrictions she felt from her right arm and wrist.
For a brief period between 13 and 20 February 2012 Ms Webber returned to pre-injury duties. This included supervising children on the playground and classroom activities where she assisted the classroom teacher. She also performed a variety of activities which she said “included car washing, cooking, gardening, shopping and train travel”.
From 22 March 2012 Ms Webber’s general practitioner, Dr Torrance, placed her on restricted duties with a lifting restriction of one kilogram with her right hand. Ms Webber claims continuing favouring of the right hand whilst doing this work.
In September 2012 following a retraining program, she commenced work for the respondent at Hassal Grove Public School in an administrative capacity. She stated that the duties, although administrative, were quite heavy including “attending the front counter, filing student records, making up folders and filing student information and photocopying”. From time to time there were other odd jobs which she was required to do.
In March 2013, Ms Webber was transferred to St Clair High School where she described her work as: “I mainly filed paperwork into student records, performed data entry duties, cleaning duties in the administration office and cleaning staff room and staff room cupboards, as well as photocopying”.
Ms Webber ceased work on 15 April 2013 and commenced job seeking.
Ms Webber stated that, even at home, she was required to perform most activities using her left hand. On or about 13 September 2013 without any particular injury to the left wrist she began to develop symptoms in her left hand and wrist. The condition was initially diagnosed as a ganglion. Subsequently she was advised that she required surgery for the condition of the left wrist, namely an ulnar shortening and carpal tunnel release of the left wrist.

Dr Smith

In a report dated 29 January 2014 to Allianz, Dr Smith stated that the diagnosis of the left wrist condition was similar to that of the right, in that Ms Webber suffered from an ulnocarpal abutment associated with a carpal tunnel syndrome. He recommended an osteotomy procedure to reduce the length of the ulna and a carpal tunnel release to prevent peri-operative medial nerve compression.
In answer to a question as to how and when the symptoms in the left wrist/arm first developed he said:
“These seem to be of relatively longstanding and have a similar profile to the right side. Probably the symptoms have been exacerbated by reliance on the left hand while she has been recovering from her right sided injury and surgery.”
Dr Smith added that: “[t]he underlying mechanical reasons for the ulnocarpal abutment is [sic] that the ulna is relatively too long”. When asked how the condition in the left wrist was related to the condition in the right wrist Dr Smith stated:
“Mrs Webber’s original injury was a traumatic injury in 2010 though there may have been a degree of overuse involved as well. I would suggest that the symptoms on the left side have occurred as a result of overuse in reliance on using the left hand whilst the right side was injured.”
Dr Smith was then asked to consider how the nature of Ms Webber’s work “results in her having to subject her upper left body to overuse/over-compensation type injury”. In answer to this question, Dr Smith said that work will increase Ms Webber’s reliance on the left side and any repetitive loading or lifting would increase the symptoms. He added that Ms Webber would have to use the left arm even more in activities of daily living.

Dr Deveridge

Dr Deveridge is a general surgeon who prepared a report dated 30 June 2014 to Ms Webber’s lawyers.
After carefully considering the history and radiological evidence, Dr Deveridge assessed that Ms Webber’s condition in the left wrist arose from the undisputed work injury. He considered that on the balance of probabilities the injuries and disabilities were attributable to the work injury on 7 May 2010. He stated that “no significant pre-existent or pre-disposing conditions were identified. The right arm injuries are a direct consequence of the subject work injury on 7 May 2010. The left hand, wrist and forearm problems are considered a consequence of excessive biomechanical strain to that arm by virtue of favouring the injured right arm.” The history obtained by Dr Deveridge is consistent with Ms Webber’s evidence as outlined above.

Dr Breit

Dr Breit is an orthopaedic surgeon who saw Ms Webber at the request of the respondent and prepared a report dated 12 February 2014.
Dr Breit was firmly of the opinion that the need for the proposed surgery did not result from the injury to the right wrist. Dr Breit stated that the condition requiring surgery in the left wrist was a constitutional phenomenon with significant changes that predated the injury. He formed the view that the problems of the left wrist would have occurred in any event notwithstanding any work related injury. Dr Breit concluded that the constitutional abnormality, namely the ulnar abutment, existed in both of Ms Webber’s upper extremities. He explained that that was because of an overly long ulna. Dr Breit was adamant that the condition was a constitutional abnormality.
Dr Breit added that the only associations ever noted of carpal tunnel syndrome with employment were in people who work with vibrating implements such as jackhammers or in cold environments such as cold stores. He conceded that on the right hand side the mechanism of injury described by Ms Webber could reasonably have aggravated the right wrist but that was not the case in the left. Given the changes on the MRI he concluded that her symptomatic presentation of the left wrist was inevitable and coincidental.
Dr Breit was asked to express an opinion as to whether Ms Webber’s employment resulted in her subjecting the left wrist to an “overuse/overcompensation injury”. Dr Breit said:
“In my opinion that is a spurious argument. It is a constitutional phenomenon with significant changes that pre-date the injury and I suspect there were significant long term changes in the right wrist, so that her left sided problems have occurred despite rather than because of her employment.”

Dr McGlynn

During the course of the proceedings the Commission referred Ms Webber to an Approved Medical Specialist (AMS), Dr Michael McGlynn, a hand and plastic surgeon, who prepared a Medical Assessment Certificate Assessment of General Medical Dispute dated 17 September 2014. Dr McGlynn categorically concluded that the proposed surgery did not result from the right wrist injury. He said:
“The proposed treatments of left carpal tunnel release, left wrist arthroscopy with ulnar shortening osteotomy, incision of left extensor tendon mass, are not reasonably necessary as a result of the injury.”
Dr McGlynn stated that the ulnar abutment was caused by the length of the ulnar bone and was a constitutional developmental condition. The damage (tear) of the triangular fibrocartilage complex cartilage (TFCC) was central, which typically occurs in degenerative conditions whereas a traumatic tear is usually radial. The presence of the slightly longer ulna increases the load on the TFCC predisposing it to premature wear and perforation.
Dr McGlynn reviewed the reports of Drs Deveridge, Smith and Breit. He expressed his disagreement with the views of Dr Deveridge and Dr Smith for the reasons stated in the preceeding paragraph.
Dr McGlynn quoted the extract from Dr Breit’s opinion (referred to at [47] above) and expressed his agreement with Dr Breit’s opinion concerning the causation of the left wrist condition.

THE ARBITRATOR’S REASONS FOR DECISION

The Arbitrator reasoned that there were some aspects of Dr Deveridge’s opinion that he found “unacceptable”. Dr Deveridge expressed the opinion that Ms Webber did not have any underlying constitutional problem in her wrist. The Arbitrator reasoned that that approach was inconsistent with the opinions of Drs Smith, McGlynn and Breit, all of whom agreed that, whatever the effects of the undisputed injury to the right wrist were, and whatever the effects of overuse might have been, there was a very significant underlying constitutional condition. Neither Dr Breit nor Dr McGlynn conceded any prospect of symptomatic aggravation of the constitutional condition by activities which Ms Webber might perform either at work or in the course of her domestic activities.
The Arbitrator accepted that, putting constitutional conditions to one side, Dr Smith maintained that repetitive and forceful work may have exacerbated or aggravated the symptoms in relation to the left wrist or indeed may have caused the carpal tunnel syndrome, however, the Arbitrator stated that “the evidence as to that is almost non-existent in the circumstances of this case”.

Even after taking into account Dr McGlynn’s opinion, which Dr Smith reviewed, Dr Smith remained of the view that the left wrist had become symptomatic on the basis of increased use of the left arm following right arm surgery. Dr Smith explained that as a consequence of having surgery on the right side, there was a period of both pain and lack of function.
The Arbitrator considered the fact that the reports of Drs Breit and McGlynn did not expressly address the issue of the effect of greater demands on the left side as a result of the surgery on the right hand.
The Arbitrator noted that Ms Webber could succeed by proving an injury simpliciter or an aggravation injury under s 4 of the 1987 Act, however, as he stated (at T11.11–15):
“The real question is whether the left wrist surgery results from the right wrist injury or the need for left wrist surgery results from the right wrist injury in the sense that the phrase results from was used in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.”
The Arbitrator reasoned (at T11.23) that if Ms Webber could establish that she developed symptoms in her left arm as a result of repetitive loading or lifting of the arm, he would be inclined to accept that she established that her condition, and the need for the surgery, resulted from the injury to the right wrist in the sense that it was brought forward by the appearance of symptoms at a time when they might not otherwise have occurred.
The Arbitrator concluded that, in the circumstances of this case, he was not convinced that Ms Webber had proven a history that was consistent with the opinion of Dr Smith. He said (at T12.1):
“In other words, I am not sure whether the applicant's evidence enables the Commission to find that the applicant was performing forceful work or repetitive work at the time she suffered symptoms. Certainly, the applicant says that when she returned to work following the two bouts of surgery to her right arm she performed office duties and that aspects of those office duties were certainly repetitive.”
The Arbitrator also noted that she gave evidence of washing cars, gardening and shopping and referred to clerical work involving laminating and bookbinding. He accepted that that work was strenuous and was uncontradicted.
However the Arbitrator concluded that throughout the time that Ms Webber performed that work up until 15 April 2013, there had been no complaint of pain in the left wrist. The Arbitrator accepted that had there been such evidence he would have had little difficulty in associating the onset of symptoms in the left wrist with the repetitive forceful activities that Ms Webber was required to perform, favouring her right arm.
The Arbitrator concluded that at the time Ms Webber first experienced symptoms in her left hand, she had been off work for some five months. He accepted that, even though when at home Ms Webber probably favoured her right hand, there was no satisfactory evidence to enable the Commission to find that she performed repetitive or arduous work of a domestic nature with her left hand during that period. Indeed there was little or no evidence of what activities she performed during that period at all. The Arbitrator went on to reason that, in those circumstances, the only available conclusion that could be reached was that the onset of symptoms was somehow a delayed reaction to forceful use of the left hand some six months earlier when Ms Webber was at work. That was an entirely different proposition to the one propounded by Dr Smith.
At the time Ms Webber presented to her doctor for treatment (of her left wrist) the evidence is largely silent as to what tasks she had been performing physically, therefore the Arbitrator was not satisfied that the opinion expressed by Dr Smith was soundly based on the facts of the case.
Whilst the Arbitrator acknowledged that the opinions of Drs Breit and McGlynn were “not without blemish”, in that they did not address in terms the issue of the repetitive forceful use of the left arm caused by injury to the right arm, they nevertheless provided a compelling reason why Ms Webber suffered the symptoms she did. Namely, because she suffered from an underlying constitutional condition which is generally accepted.
The Arbitrator finally concluded that Ms Webber had not persuaded him on the balance of probabilities that her left wrist condition resulted from the undisputed injury to her right wrist and in those circumstances he entered an award for the respondent.

ISSUES SOUGHT TO BE RAISED ON APPEAL

An Appeal Against a Decision of an Arbitrator must set out the grounds relied upon in support of the appeal. Practice Direction No 6 states that it is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion. That is precisely what the appellant has done in this case. That is unsatisfactory. I remind practitioners that appeals must identify the grounds relied upon and must comply in all respects with the Practice Direction.
The issues have been grouped as a narrative under two broad headings, namely errors of fact and errors of law. In the circumstances, I will deal with the submissions under those headings, dealing with the latter first.

Alleged errors of law

Mr Morgan acknowledges (at [47] of the appellant’s submissions) that the primary issue before the Arbitrator was whether the treatment or expense claimed was as a result of the injury to the right wrist. That is precisely how the Arbitrator formulated the issue before him at T6.10. The Arbitrator acknowledged at T11.15 that the principles relevant to a determination of that issue were those discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). Mr Morgan has not suggested otherwise.
Mr Morgan alleges that the Arbitrator erred when applying Kooragang, by finding that Ms Webber’s failure to provide evidence of left wrist symptoms whilst at work in the years that followed before she ceased work on 15 April 2015 meant that the left wrist condition could not result from the original injury. He submits that the Arbitrator appeared to find that the passage of time after the original injury, during which no symptoms emerged, somehow broke the chain between the original undisputed injury to the right wrist and the condition in the left wrist. He submits that in Kooragang Kirby P stated (at 464):
“… the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
Mr Morgan further submits that the “‘common sense’ approach to causation, in Kooragang, required due consideration to the undisputed favouring of the left wrist [sic, right] by [Ms Webber] in all tasks following the original right wrist injury to be sufficient casual connection to the subsequent left wrist condition irrespective of the precise date at which symptoms emerged” (emphasis in original). The delayed onset of symptoms during the period Ms Webber was not working should not be regarded as having broken the chain of causation.
Further, Mr Morgan submits that the Arbitrator erred to the extent that he found the presence of the underlying constitutional condition in the left wrist was a decisive point, rather than accepting that the injury does not have to be the only, or even a substantial, cause of a need for treatment before the cost of that treatment is reasonably recoverable under s 60: Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 (at [58]).
I reject Mr Morgan’s submissions. The submissions do not demonstrate an error of law, they merely complain of the Arbitrator’s application of the law to the facts.
Moreover, the submissions wrongly seek to compartmentalise the Arbitrator’s findings when the Arbitrator’s conclusion was reached by taking into account a combination of factors, including the delay in the onset of symptoms and the presence of a constitutional abnormality in both wrists.
Further, I reject the submission that the Arbitrator “appeared to find” a break in the chain of causation. The Arbitrator did not find any causation between the conditions in the right wrist and the left wrist. Thus, he could not and did not approach his findings on the basis of a break in the chain of causation.
The Arbitrator did not find that the presence of a constitutional condition in the left wrist was a decisive point. Rather, he found that as he was not satisfied on the balance of probabilities that the condition in Ms Webber’s left wrist resulted from the undisputed injury to the right wrist, the underlying constitutional condition provided a compelling explanation for the need for the proposed surgery. That constitutional condition being the undisputed abnormality in Ms Webber’s ulna in both wrists requiring an osteotomy or shortening procedure to alleviate her symptoms.

Alleged errors of fact

Mr Morgan submits that the absence of complaints of pain in the left wrist prior to leaving work on 15 April 2013 was “critical” to the Arbitrator’s determination. I have already found that that submission is not an accurate statement of the Arbitrator’s analysis of the evidence. The absence of complaints was a relevant matter which the Arbitrator correctly weighed with all the evidence. He did not state that it was critical to his determination and a fair reading of his decision would not lead to that inference.
Mr Morgan submits that the Arbitrator erred by inferring that the evidence of Dr Smith was to the effect that the aggravation of symptoms to the left wrist would only be from work activities, performing repetitive or strenuous tasks and not, as Dr Smith actually opined, from generally favouring the right wrist in all post injury activities. He alleges that the Arbitrator mistakenly inferred that the onset of pain whilst Ms Webber was not working meant that he could not find the condition in the left wrist resulted from the original injury.
The Arbitrator analysed in detail the features of Ms Webber’s work that could give rise to repetitive loading, which was the basis of Dr Smith’s opinion. The Arbitrator analysed Ms Webber’s work duties, which included laminating, book binding, gardening and car washing, which he accepted were strenuous. He concluded, however, that there was no complaint of pain in the left wrist after undertaking that work.
The Arbitrator separately considered many features of Ms Webber’s activities outside of work that would have placed extra demands on the left wrist. The Arbitrator accepted (at T12.27) that, in the five months after Ms Webber ceased work, she probably favoured her right hand, however, there was no satisfactory evidence to enable the Commission to find that she performed arduous work of a domestic nature with her left hand during that period. That finding was open to the Arbitrator and does not reveal error, given that Ms Webber merely asserted that during that period she was required to perform most activities with her left hand. She failed to elaborate on what those activities were, whether they involved lifting or repetitive movements or any other information concerning any extra demands placed on the left wrist.
Contrary to Mr Morgan’s submission, the Arbitrator did accept, as Dr Smith opined, that the condition could result from generally favouring the right wrist. However, accepting that to be the case, Ms Webber’s case failed because of an absence of evidence to enable the Arbitrator to find, on the balance of probabilities, that the need for the surgery resulted from the right wrist injury.
Mr Morgan submits that the Arbitrator erred by misunderstanding the import of Dr Smith’s evidence by concluding that it was determinative of the issue that symptoms had not emerged whilst Ms Webber was working. I reject the submission. The Arbitrator did not approach the question before him on that basis. He considered both alternatives and assessed whether the evidence supported the contention that the condition in the left wrist had been aggravated either by work activities or by generally favouring the right wrist in post-work activities. For the reasons explained by the Arbitrator, the evidence fell short on both issues. The Arbitrator’s conclusions were open on the evidence and reveal no error.
Mr Morgan submits that the Arbitrator erred in rejecting Dr Smith’s evidence on the link between the injury to the right wrist and the condition in the left wrist. He submits that the Arbitrator’s approach was “factually erroneous and, either contrary to the evidence or contrary to compelling inferences that were available to be drawn from the evidence of [sic] and was therefore ‘glaringly improbable’ (Fox v Percy (2003) 214 CLR 118 at 128)”. I reject that submission.
The Arbitrator did not reject Dr Smith’s evidence. Indeed the Arbitrator accepted (at T11.23) that if Ms Webber was able to establish a factual basis for repetitive loading and lifting of the arm, he would have been inclined to accept the evidence. The Arbitrator placed less weight on Dr Smith’s opinion because he concluded (at T11.31) that although there were aspects of her work that were strenuous or repetitive, in the absence of any complaint of pain after the right wrist injury and for five months after ceasing work, Ms Webber had not proven a history that was consistent with the opinion of Dr Smith.
Further, two highly qualified specialists, Dr Breit and Dr McGlynn, Dr McGlynn being an AMS appointed by the Commission, were adamant that the need for the treatment of the left wrist was totally unrelated to Ms Webber’s employment for the reasons explained earlier in this decision. There is no substance in the submission that the Arbitrator’s conclusion was “glaringly improbable”. On the evidence presented he had a solid foundation for preferring the evidence of Drs Breit and McGlynn to that of Drs Smith and Deveridge.
Mr Morgan submits that the Arbitrator made a factual finding that Ms Webber’s left wrist condition was the result of an underlying constitutional condition which arose spontaneously in September 2013, and that that finding was made without any evidentiary basis, as the evidence relied upon by the Arbitrator lacked probative value on the causation issue.
Mr Morgan further submits that the opinions of Dr Breit and Dr McGlynn were not probative because they did not consider, in terms, the suggestion that the condition of the left wrist was causally related to the injury to the right caused by favouring that limb. That submission is not accurate. Dr Breit was asked:
“Can you please advise as to how the nature of Ms Webber’s employment … as a School Teacher results in her having to subject her upper left body (wrists/arms) to an overuse/overcompensation type injury? Please also elaborate what part of Ms Webber’s role would increase her risk of suffering from this type of injury?”
Dr Breit said that it was a “spurious argument”, adding that the condition in the left wrist was a constitutional phenomenon that was long standing and pre-dated the right wrist injury. Dr McGlynn commented on Dr Breit’s opinion and stated that he agreed with it.
Whilst I accept that neither Dr Breit or Dr McGlynn considered the particular aspects of Ms Webber’s employment that gave rise to the allegation of overuse of the left wrist, it is clear that they did not support the proposition that the condition in the left wrist could be aggravated by Ms Webber’s employment in the absence of a trauma of the kind suffered to the right wrist.
The evidence of Dr Breit and Dr McGlynn was also probative in the sense that their evidence provided a compelling reason as to why Ms Webber suffered the symptoms she did, namely the presence of the underlying constitutional abnormality. The opinions of both doctors were soundly based on their clinical examination and radiological investigations, including an MRI which demonstrated, among other things, an ulnar abutment, which is a constitutional abnormality. The Arbitrator’s finding to that effect was open on the evidence and revealed no error.
The Arbitrator did as he was required to do, that is, to weigh all the evidence including the lay and expert evidence. Ultimately the Arbitrator’s conclusions were reached after considering a combination of factors, namely:
(a)     that Ms Webber suffered from a recognised constitutional condition, that is an unusually long ulna in both wrists;
(b)     two expert witnesses, including an AMS, were adamant that the proposed treatment in the left wrist did not result from the injury to the right wrist;
(c)     little or no weight could be given to the evidence of Dr Deveridge because of his failure to acknowledge that there was any pre-existing constitutional condition when clearly there was;
(d)     a paucity of evidence to support the factual basis upon which Dr Smith relied in order to reach his conclusions, and
(e)     a substantial and unexplained delay in the onset of symptoms.
The Arbitrator’s findings were open to him on the evidence. The proposed appeal has not established an arguable case that the Arbitrator erred in his approach or conclusions.

CONCLUSION

I am satisfied that the Arbitrator correctly identified the issue before him. He correctly identified the legal principles to be applied. His conclusions were soundly based on the evidence presented before him.
For the reasons I have explained, I am of the view that the proposed appeal has no reasonable prospects of success and in these circumstances it cannot be established that refusing to extend time to appeal would result in substantial injustice.

ORDERS

The respondent employer’s name is amended to State of NSW.
The application to extend time to appeal is refused.

COSTS

No order as to costs.

Judge Keating
President

20 March 2015

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

ASSOCIATE