Westpac Banking Corporation v Chauhan
[2019] NSWWCCPD 63
•10 December 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Westpac Banking Corporation v Chauhan [2019] NSWWCCPD 63 |
| APPELLANT: | Westpac Banking Corporation |
| RESPONDENT: | Madhu Chauhan |
| INSURER: | Self insurer |
| FILE NUMBER: | A1-1431/19 |
| ARBITRATOR: | Mr N Read |
| DATE OF ARBITRATOR’S DECISION: | 11 June 2019 |
| DATE OF APPEAL DECISION: | 10 December 2019 |
| SUBJECT MATTER OF DECISION: | Approach to expert evidence considered; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr Tim Ainsworth, Partner | |
| HWL Ebsworth Lawyers | |
| Respondent: | |
| Mr R Stanton, of counsel | |
| Brydens Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Order 1 of the Certificate of Determination dated 11 June 2019 is amended by deleting the date 1 September 2015 and inserting in its place the date 1 September 2017. 2. Otherwise, the Arbitrator’s Certificate of Determination dated 11 June 2019 is confirmed. |
INTRODUCTION
This is an appeal by the employer against the Arbitrator’s decision to award the worker weekly benefits compensation and medical expenses in respect of incapacity suffered as a result of aggravation, acceleration, exacerbation or deterioration of the worker’s bilateral cubital tunnel syndrome. In this appeal, the appellant employer takes issue with how the Arbitrator approached the task of considering the expert medical opinion in reaching his ultimate conclusions. The appellant also submits that the Arbitrator erred in failing to consider whether the alleged incapacity was a result of any injury suffered by the worker.
BACKGROUND
Madhu Chauhan, the respondent, is employed by Westpac Banking Corporation, the appellant, as a bank officer working in an in-bound call centre.
Ms Chauhan claimed she suffered an injury to her neck, both elbows and both wrists as a result of excessive typing and using the mouse in the course of her employment with the appellant.
On 1 September 2017 Ms Chauhan reduced her working hours from full time to part time (22 hours per week). She continues to work part time for the appellant undertaking her pre‑injury duties. Ms Chauhan made a claim for weekly benefits compensation from 1 September 2017 and medical expenses.
The appellant issued notices pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 17 May 2016 and 25 August 2017, declining liability.
On 21 December 2018 Ms Chauhan lodged an Application to Resolve a Dispute (ARD), claiming injury to her cervical spine and both elbows and wrists due to excessive typing and use of the mouse during the course of her employment with the appellant since early 2008.
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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
Ms Chauhan’s statement
In a statement dated 23 November 2018, Ms Chauhan said she commenced full-time employment with the respondent in March 2008. She worked in the lending services in‑bound call centre, taking calls, typing and using the mouse. Ms Chauhan states:
“I am right handed and I developed pain in my right forearm and right shoulder in or about 2011 or 2012. When I started to experience the symptoms, I started to switch hands and was using the mouse with my left hand. I was alternating between the two hands.
The symptoms continued to deteriorate. I was also getting pain in my neck. In 2012, I recall I was holding a cup and I had pins and needles in my right hand and I had to quickly place the cup on the bench as I was unable to hold it any more as I felt like I was going to drop it”.[1]
[1] ARD, p 2.
Ms Chauhan said that after reporting the incident she was referred by the respondent to a physiotherapy program and undertook about 9 or 10 sessions of physiotherapy.
Ms Chauhan said:
“Over the years, I was avoiding the use of my right arm as much as I could due to the pain I was experiencing in my right arm. I was using my left arm a lot more now after the pain I developed in my right arm. I started to develop pain in my left arm between 2015 and 2016.
Due to excessive use of my left arm, I developed pain in my left forearm and wrist. I get pins and needles which extended to my fingertips. The pain in my left arm is not as bad as my right arm.”[2]
[2] ARD, p 3.
On 1 September 2017, Ms Chauhan reduced her work hours from full time 40 hours per week to part time 22 hours per week due to the pain in both her arms.
Ms Chauhan was placed on a waiting list for decompression surgery on her right elbow and underwent surgery on 26 June 2018. She claims the surgery provided only limited relief and since then she had had physiotherapy and remedial massage to her neck “with no benefit”.[3]
[3] ARD, p 4.
Ms Chauhan stated she was currently working her pre-injury duties with reduced hours and continued to experience intermittent pain mainly on the right side with stiffness as well as pain and needles and numbness extending to the tips of her fingers.[4]
[4] ARD, p 4.
Medical evidence
On 4 July 2015 the following entry appears in Ms Chauhan’s clinical records:
“Reasons for contact: Repetitive strain injury; works with computers +++ advice conservative tx [treatment]...nsaids [nonsteroidal anti-inflammatory drugs], rest ergonomic keyboards, mice...consider wc [workers compensation].”[5]
[5] ARD, p 65.
Ms Chauhan was referred for investigations on both elbows and wrists with possible tendon injuries,[6] however ultrasound examinations were normal.[7]
[6] ARD, p 65.
[7] ARD, pp 156-157; 169; 173.
Dr Samaranayake – general practitioner
On 28 September 2015, Dr Dimuthu Samaranayake from the Eastbrooke Medical Centre provided a medical report to the appellant indicating Ms Chauhan sustained a possible rheumatological disorder/arthritis and carpel tunnel syndrome condition to both her hands due to working with a keyboard and mouse and poor posture at work. Dr Samaranayake referred Ms Chauhan for nerve conduction studies to clarify the diagnosis of carpal tunnel syndrome and was awaiting blood tests. The doctor also noted Ms Chauhan mentioned her pain could be exacerbated from vacuuming, mopping and hanging clothes.[8]
[8] ARD, p 170–117.
On 19 October 2015 Dr Samaranayake certified Ms Chauhan as having capacity for work with restrictions. The medical certificate noted that Ms Chauhan had neck pain (right more than left) and her bilateral forearm pain was worse after typing.[9]
[9] ARD, p 175.
Dr Dowla – neurologist
Ms Chauhan was referred to Dr M Dowla, consultant in neurology and clinical neurophysiology.
In a report dated 20 October 2015 Dr Dowla said Ms Chauhan presented with a two-year history of bilateral wrist pain and associated paraesthesia and numbness. The doctor noted that since June 2015 Ms Chauhan’s symptoms had become constant and variable in both wrists, and that the pain was worse after typing and using the mouse. Dr Dowla said that since August 2015 Ms Chauhan’s pain had been much worse and even increased at times of normal household chores such as vacuuming, mopping, hanging clothes etc.[10]
[10] ARD, p 32.
Dr Dowla undertook nerve conduction studies which showed no evidence of focal or generalised neuropathy. Dr Dowla did not provide a concluded view on the cause of Ms Chauhan’s symptoms. He said they “could be either due to overuse or repetitive flexion – extension of the wrist.”[11]
[11] ARD, p 33.
Dr Spencer – rheumatologist
Ms Chauhan was referred to Dr David Spencer, rheumatologist. In a report dated 5 February 2016 Dr Spencer recorded that Ms Chauhan had an onset of pain initially in her right arm in 2013 and that the pain had “radiated into the mid palmar region and then towards the elbow and forearm.” Dr Spencer said Ms Chauhan changed doing her usual activities to the left hand and after a period of time developed similar symptoms in her left arm. The doctor noted Ms Chauhan went off work for personal reasons in November 2015 and after about one month her symptoms had largely resolved. Dr Spencer did not identify any evidence of rheumatoid arthritis.[12]
[12] ARD, p 34.
Dr Quach – General Practitioner
On 5 May 2016 an entry in the clinical records of Dr Quach said “chronic pain hands, forearms, elbows ... long discussion under wc [workers compensation]”.[13]
[13] ARD, p 64.
On 19 May 2016 Dr Quach completed a WorkCover medical certificate which included a diagnosis of Ms Chauhan suffering a repetitive strain injury of both arms, shoulders, hands as well as chronic pain and numbness in her fingers. Dr Quach recorded the date of injury as 3 July 2015 and recorded the injury was related to work due to “excessive, prolonged keyboard and mouse use at work.”[14] The doctor certified Ms Chauhan as having capacity for full-time employment for the period 19 May 2016 to 19 June 2016 with restrictions (a lifting capacity of 0.5 kg and five-minute breaks every half hour).[15]
[14] ARD, p 88.
[15] ARD, p 89.
On 8 June 2016 Ms Chauhan reported experiencing further injury. The clinical records note “turning in her chair pulling herself toward her desk at work” in the morning when she felt a sharp pain in her right flank/lower back.[16] Dr Quach issued numerous WorkCover medical certificates in relation to this injury.
[16] ARD, p 63.
On 18 June 2016 the clinical notes record “ongoing wrist/forearm pain,”[17] for which Dr Quach issued a WorkCover medical certificate.[18]
[17] ARD, p 62.
[18] ARD, p 109.
On 23 July 2016 Dr Quach issued a medical certificate advising Ms Chauhan would benefit from a stand-up desk in order to minimise repetitive movements in one constant position at work.[19]
[19] ARD, p 121.
Dr Gupta – orthopaedic surgeon
In July 2016, Dr Simon Chan recommend Ms Chauhan undergo ulnar nerve decompression surgery. Ms Chauhan sought a second opinion from Dr Manish Gupta. In report dated 27 March 2017 Dr Gupta recorded that Ms Chauhan told him she first started to experience pain which started at the neck and radiated across her shoulders into both elbows and hands. Dr Gupta said:
“I do agree that cubital tunnel syndrome is a correct diagnosis and I would equally happily offer ulnar nerve decompression surgery at the elbow.
As [Ms Chauhan] tells me the problem starts with her neck and is related to poor posture at her job, I am concerned that the neck has not been imaged yet.”[20]
[20] ARD, p 52.
Dr Gupta referred Ms Chauhan for an MRI scan of her cervical spine. Dr Gupta noted:
“I do feel that cubital tunnel syndrome is related to an occupational exposure with lots of leaning on her elbows as well as sitting at a desk using a computer and telephone...”[21]
[21] ARD, p 52.
On 4 May 2017 Dr Gupta saw Ms Chauhan following an MRI scan of her cervical spine and noted the scan did not show any significant spondylosis or neural impingement. Dr Gupta confirmed the problem was “almost all peripheral nerve with regards to the cubital tunnel”[22]
[22] ARD, p 50.
Dr Gupta organised an injection to Ms Chauhan’s right wrist and placed her on a waiting list to undergo ulnar nerve transposition wrist surgery.[23]
[23] ARD, p 50.
In a report dated 24 August 2017 Dr Gupta confirmed Ms Chauhan’s diagnosis as right cubital tunnel syndrome which had not improved with a wrist joint injection. Dr Gupta said the treatment plan was for Ms Chauhan to continue to wait for the cubital tunnel surgery. Dr Gupta said the chief complaint continued to be ulnar neuropathy. Dr Gupta also said:
“Madhu also talks about pain at the base of the neck radiating across her trapezius muscle into the shoulder and arm and the overall concern here is muscular with postural issues. I chatted to Madhu about seeing an appropriate manual therapist and I understand she is seeing a remedial massage therapist at Rouse Hill and I think this is essential. She should continue this along with appropriate strengthening exercise to try to improve her posture and muscular well-being and balance and I look forward to reporting back to you with details of surgery when given a date.”[24]
[24] ARD, p 49.
In a report of the same date Dr Gupta opined that due to chronic, ongoing musculoskeletal concerns awaiting surgical treatment, Ms Chauhan was appropriately suited for part-time occupational employment until further notice.[25]
[25] Application to Admit Late Documents (AALD), p 1.
After seeing Dr Gupta, from 1 September 2017 Ms Chauhan reduced her working hours to 22 hours per week.[26]
[26] ARD, p 3.
On 5 September 2017 Dr Quach reported that Ms Chauhan suffered from bilateral upper limb pain with right cubital tunnel syndrome and was awaiting surgery. He further opined she was able to work restricted hours for an indefinite period on a part-time basis (24 hours per week) undertaking normal duties.[27]
[27] AALD, p 5.
Ms Chauhan underwent surgery on 26 June 2018. The operative notes recorded that the ulnar nerve in the right cubital tunnel was noted to be contused.[28] Ms Chauhan said notwithstanding the surgery she has not experienced any pain relief in her right side and felt like she was in a worse position after the surgery.[29]
Forensic medical reports
[28] ARD, p 48.
[29] ARD, p 4.
Dr Paul – occupational physician
On 4 April 2016 Ms Chauhan saw Dr Matthew Paul, consultant occupational physician qualified by the employer. In a report dated 15 April 2016 Dr Paul recorded Ms Chauhan said her work duties were 100% desk-based:
“She stated that she is at her desk for the majority of the day performing her duties which include talking to customers, collecting information and putting information into the computer system using a keyboard and mouse. She stated that her calls will last between 5 and 30 minutes with most calls being between five and seven minutes. She stated that on calls she will collect information and intermittently utilise the keyboard and mouse”[30]
[30] Reply, p 3.
Dr Paul said:
“Ms Chauhan is a 43-year-old female bank officer who reported a vague and gradual onset of bilateral upper limb symptoms with the symptoms caused by activity both at work and at home. She reported keyboarding and mousing do make her symptoms worse at work. She reported driving, gripping and holding are making the symptoms worse outside of work and cooking, cleaning, hanging out clothes and shopping all make her symptoms worse outside of work. She is also reporting symptoms associated with no activity including increased pain, numbness and tingling in her hands overnight.”[31]
[31] Reply, p 6.
Dr Paul diagnosed clinical carpal tunnel disease and inflammatory/connective tissue disorder.[32]
[32] Reply, p 6.
Dr Paul said Ms Chauhan’s conditions were not caused by work and her symptoms were exacerbated by activity both at home and at work.[33]
[33] Reply, p 7.
Dr Paul noted that Ms Chauhan’s symptoms had worsened over time and Phalen’s and Tinel’s tests were positive.[34] He said any work restrictions were related to likely non-compensable carpal tunnel disease and underlying inflammatory arthritis/connective tissue disease requiring further investigation.
[34] Reply, p 7.
Dr Paul said Ms Chauhan’s conditions were probably constitutional and pre-existing.[35] He opined that Ms Chauhan’s conditions were not work-related and the employment was not the main or substantial contributing factor to her condition. He said that office-based work had been shown to be protective in relation to carpal tunnel disease and he found no evidence of repetitive strain injury although there was some evidence of pre-existing and underlying inflammatory arthritis/connective tissue disease.[36]
[35] Reply, p 7.
[36] Reply, p 8.
In terms of work capacity, Dr Paul said that in relation to the diagnosed condition Ms Chauhan did require ongoing restrictions and modifications to reduce the likelihood of exacerbations, but the current restrictions and current workplace appeared to be appropriate.[37] At the time Ms Chauhan saw Dr Paul she was working full time with restrictions.
[37] Reply, p 9.
Dr Wallace – orthopaedic surgeon
On 21 July 2017 Ms Chauhan saw Dr Raymond Wallace, an orthopaedic surgeon qualified by the employer. In a report dated 31 July 2017 Dr Wallace noted Ms Chauhan complained of pain at her cervical spine in the region of C4/5/6 radiating to her bilateral shoulders, bilateral elbows, bilateral forearms and bilateral wrists. She reported pain which was constant and worse with using a computer mouse, typing, driving, work activity or doing housework. [38]
[38] Reply, p 13.
Dr Wallace diagnosed Ms Chauhan as having suffered a “spontaneous onset” of cervical spine and bilateral upper limb symptoms, in particular a pre-existing multilevel degenerative disc disease in the cervical spine and an underlying inflammatory arthropathy in the bilateral upper limbs. He said both conditions were “non-work related”.[39]
[39] Reply, p 15.
Dr Wallace opined there was no objective medical evidence that Ms Chauhan had suffered a work-related injury to her neck or bilateral upper limbs. Dr Wallace said:
“The nature and conditions of her employment as a Call Centre Operator at an ergonomically correct workstation are not consistent with being the cause of any significant cervical spinal or bilateral upper limb symptoms...
Ms Chauhan underwent MRI investigation of the cervical spine on 18 April 2017 which showed evidence of multilevel degenerative disc disease at the cervical spine.
It is likely that her current cervical spine and bilateral upper limb symptoms are due to underlying degenerative disc disease at the cervical spine and an as yet undiagnosed inflammatory arthropathy involving her bilateral upper limbs.
Ms Chauhan would have noted the onset of cervical spine or bilateral upper limb symptoms at about the same time or at the same stage of her life had she not been at work or employed by Westpac Banking Corporation.
Certainly, her employment with Westpac Banking Corporation is not the main contributing factor to any current cervical spinal or bilateral upper limb conditions.”[40]
[40] Reply, p 16.
Associate Professor Wong
Ms Chauhan saw Associate Professor SK Cyril Wong, general surgery consultant, on 31 August 2018. Associate Professor Wong recorded Ms Chauhan had developed carpal tunnel syndrome in both hands, injuries to both wrists and elbows due to the “repetitive nature of her employment.” Associate Professor Wong said Ms Chauhan had also sustained injuries to her upper back and cervical spine.[41]
[41] ARD, p 42.
Associate Professor Wong noted Ms Chauhan was currently working preinjury duties with reduced hours and was experiencing pain, mainly on her right side with stiffness.[42] He diagnosed Ms Chauhan as having sustained a soft tissue injury to her cervical spine with non-verifiable radicular complaints, right cubital tunnel syndrome which had required decompression surgery and possible ulnocarpal impaction to the right wrist.[43]
[42] ARD, p 42.
[43] ARD, p 44.
Associate Professor Wong opined Ms Chauhan’s condition was consistent with “the mechanism of injury described” and was “caused and materially aggravated” by the nature and conditions of her employment. [44] Associate Professor Wong did not provide an opinion on Ms Chauhan’s work capacity but noted she was currently working pre-injury duties with reduced hours.
[44] ARD, p 44.
LEGISLATION
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“4 Definition of “injury”
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
THE ARBITRATOR’S REASONS
The Arbitrator, in his analysis of the factual, medical and expert evidence was satisfied to a sense of “actual persuasion”[45] that Ms Chauhan’s employment aggravated her bilateral cubital tunnel condition. In making this finding, the Arbitrator assessed the evidence with reference to the relevant authorities on s 4(b)(ii) of the 1987 Act.[46]
[45] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [44].
[46] Murray v Shillingsworth [2006] NSWCA 367; White v Sylvania Lighting Australasia Pty Limited [2011] NSWWCCPD 7 at [57], Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626; Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66]; Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132, Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 at [61], Commonwealth of Australia v Beattie [1981] 35 ALR 369; Albury City Council v Gunton [2011] NSWWCCPD 68.
The Arbitrator noted that the question of whether Ms Chauhan’s employment constituted a contributing factor to the aggravation, etc of her cubital tunnel syndrome, was not one that was “within the realm of common knowledge or experience”.[47] That is, the issue could not be determined by drawing circumstantial inferences from the evidence, but must be resolved by having regard to the expert medical evidence. The Arbitrator went on to analyse the medical and expert evidence.[48]
[47] Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720, 724; see also Strinic v Singh [2009] NSWCA 15 and Roger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48; Lithgow City Council v Jackson [2011] HCA 36.
[48] ARD, p 77–88.
Although he rejected Associate Professor Wong’s opinion that Ms Chauhan’s employment caused her injury, the Arbitrator noted Associate Professor Wong’s opinion was to an extent consistent with the opinion of Dr Paul who said Ms Chauhan’s condition was exacerbated by both work and non-work factors, and Dr Gupta who felt there was connection to the her work duties.[49] The Arbitrator did not accept that the symptoms were the ordinary consequence of Ms Chauhan’s underlying condition.[50]
[49] ARD, p 52.
[50] Reasons, [85].
At paragraph [88] of his decision, the Arbitrator outlined the matters which were persuasive in making his finding that Ms Chauhan’s work was the main contributing factor to the aggravation etc of her condition. The Arbitrator noted Ms Chauhan’s evidence was not ideal, with no specific factual evidence that her work involved repetitive stretching, bending or extension of her elbows. However, he accepted that as a matter of common sense it is reasonable to infer that Ms Chauhan’s work activities were longer in duration and intensity and involved much more extensive use of her wrists and hands over domestic tasks. The Arbitrator also found support for the claim that Ms Chauhan’s repetitive movements could aggravate her condition in the evidence of Dr Dowla,[51] Dr Quach[52] and inferentially of Dr Paul.[53] He also noted there was adequate evidence of a temporal connection between work and worsening of her condition.
[51] ARD, p 32.
[52] ARD, p 121.
[53] Reply, p 9.
The Arbitrator went on to consider Ms Chauhan’s incapacity for work due to her bilateral cubital tunnel syndrome, which prevented her from undertaking full-time work since 1 September 2017. The Arbitrator set out the matters he considered in determining Ms Chauhan’s incapacity for work in paragraph [112] of his reasons, including medical advice that Ms Chauhan reduce her hours and the fact she did so, her evidence of pain and the surgery undertaken on 26 June 2018, notwithstanding its lack of efficacy as to her right hand. The Arbitrator, ultimately made an award for Ms Chauhan on the claim for weekly benefits, as set out in paragraph [58] below (paragraph [7] of the Certificate of Determination).
The Arbitrator made further findings in respect of Ms Chauhan’s neck condition, which are not relevant to this appeal.
The Certificate of Determination issued on 11 June 2019 records:
“The Commission determines:
1. The applicant suffered an injury in the course of her employment to her left and right upper extremities in the form of an aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome with a deemed date of injury of 1 September 2015.
2. The applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bilateral cubital syndrome.
3. The applicant has not proved on the balance of probabilities that she suffered an injury to her neck pursuant to section 4(b)(ii) of the Workers Compensation Act 1987, or that the employment was the main contributing factor to any aggravation of the disease condition in her neck.
4. From 1 September 2017 the applicant suffered incapacity for employment as a result the aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome.
The Commission orders:
5. Award for the applicant on the claim for injury to her left and right upper extremities.
6. Award for the respondent on the claim for injury to the neck.
7. Award for the applicant on the claim for weekly benefits compensation. The respondent is to pay the applicant weekly benefits compensation pursuant to section 36 and 37 of the 1987 Act in the agreed amounts as follows:
(a)For the period 1 September 2017 to 30 June 2018, at a rate of $354 per week;
(b)For the period 1 July 2018 to date and continuing, at a rate of $285 per week.
8. Award for the applicant on the claim for medical expenses resulting from the aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome. The respondent is to pay the applicant’s reasonably necessary medical expenses resulting from the aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome and associated expenses.
9. Award for the respondent on the claim for medical expenses resulting from the claimed injury to the neck.”
GROUNDS OF APPEAL
The appellant argues two grounds of appeal. They are:
(a) Ground One: The decision is affected by an error of fact, law or discretion in so far as it failed to identify an injury for which there was expert medical support, notwithstanding it was noted such expert guidance was required by the Commission.
(b) Ground Two: The decision is affected by an error of law due to the failure to consider whether the relevant incapacity was as a result of the injury; this error stands alone but also proceeds from the initial error of an imprecise identification of the injury.
SUBMISSIONS
Appellant’s submissions
Ground One
The learned Arbitrator found that Ms Chauhan’s employment aggravated the condition of bilateral cubital tunnel condition in her bilateral upper extremities.[54]
[54] Reasons, [85], [89], [90].
The appellant submits that this finding was based on the opinion of Dr Gupta which is based on unproven assumptions of the facts. The appellant asserts there is no evidence from Ms Chauhan to suggest that she leant on her elbows and there is no explanation from Dr Gupta as to how or why the use of a telephone or computer might cause or aggravate the cubital tunnel condition. Further, Dr Gupta’s opinion fails to set out the relevant mechanism for causation and does not express a view on the relevant causal test (main contributing factor) and does not satisfy the requirements for expert evidence set out in cases such as Makita (Australia) Pty Ltd v Sprowles.[55]
[55] [2001] NSWCA 305 (Makita).
Additionally the appellant observes that to the extent that the Arbitrator relied on the opinions of Associate Professor Wong and Dr Paul, this was in error because neither diagnosed that Ms Chauhan was suffering from cubital tunnel syndrome. Therefore, any condition which these two medical practitioners found had been aggravated cannot be taken as being applicable to the injury that had been found. The appellant asserts that the learned Arbitrator determined the relevant causal connection between the cubital tunnel syndrome and Ms Chauhan’s employment by conflating the opinions of different experts, namely Dr Gupta whom the appellant alleges failed to provide cogent reasons for his opinion, and Professor Wong and Dr Paul, who were dealing with the exacerbation of an underlying condition and not cubital tunnel syndrome.
Ground Two
The appellant asserts that the Arbitrator has made an error of law by failing to consider whether or not the alleged incapacity was a result of any injury. The error the appellant alleges is that the learned Arbitrator has found the cubital tunnel syndrome, an underlying condition according to the appellant, had been aggravated or exacerbated. The appellant alleges that the learned Arbitrator erred in his reasoning by accepting the allegation of exacerbation of an underlying condition and not addressing the question as to whether or not there had in fact been an injury.
Ms Chauhan’s submissions
Ground One
Ms Chauhan says the submissions in relation to Ground One fail to identify the specific errors and whether they are an error of fact, law or discretion and that this requires an element of conjecture in terms of any response to this ground of appeal.
Ms Chauhan proceeds to reply to what she perceives to be the appellant’s case. Firstly, with respect to the criticisms made of Ms Chauhan’s treating surgeon Dr Gupta, Ms Chauhan says that there was evidence she worked full time in a call centre using a telephone and a computer. Ms Chauhan says that the various histories given to the medical practitioners were available for the Arbitrator to comment upon. She denies the appellant’s assertion that Dr Gupta’s opinion was based on unproven assumptions of the facts and submits Dr Gupta’s opinion was premised on an acceptable summary of her history and what can sensibly be inferred from such descriptions.
Ms Chauhan relies upon the decision of Paric v John Holland (Constructions) Pty Ltd[56] in support of the submission that the history or facts assumed by an expert do not have to precisely correlate with the evidence received provided that such history constitutes “a fair climate for the opinions they express”. The respondent asserts that the Arbitrator was entitled to give weight to Dr Gupta’s opinion.[57]
[56] [1984] 2 NSWLR 505 at 505–510 per Samuels JA (Paric).
[57] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, [83] per Beazley JA (Hancock).
For these reasons Ms Chauhan asserts that the criticisms of Dr Gupta’s opinion do not substantiate any error.
Ms Chauhan maintains that the Arbitrator was entitled to rely on aspects of Dr Paul’s reports in the manner employed. Dr Paul reached a different diagnosis of Ms Chauhan’s condition, namely carpal tunnel disease and inflammatory connective tissue disorder, which is different to that found by Dr Gupta and ultimately confirmed by the Arbitrator. Ms Chauhan submits that the Arbitrator was perfectly entitled to take into account Dr Paul’s comments that her symptoms were exacerbated by activities at work, notwithstanding that the clinical diagnosis did not correspond with the one ultimately found. In relation to this finding, Ms Chauhan identifies that Dr Gupta had the benefit of MRI scans of the wrists performed after Dr Paul’s examination and had the benefit of his observations during the right sided surgical procedure on 26 June 2018. In particular, Dr Gupta’s notes from the operation[58] are relied upon by Ms Chauhan in identifying the injury which was ultimately found by the Arbitrator in Determination No 1.
[58] ARD, p 48.
Ms Chauhan rejects the basic premise behind Ground One as factually incorrect.
Ground Two
Ms Chauhan asserts that Ground Two is misconceived. Ms Chauhan asserts that the Arbitrator’s reasons expressly considered whether her incapacity resulted from injury.[59] Ms Chauhan submits that in these passages of the Arbitrator’s reasons, the relevant statutory provisions are reviewed and then applied to the factual matters as found before concluding at Reasons [113] that Ms Chauhan had an incapacity for work because of her bilateral cubital tunnel syndrome. Ms Chauhan asserts that this ground is thus not made out.
DISCUSSION
[59] Reasons, [104]–[112].
As to Ground One
Ground One essentially takes issue with how the Arbitrator approached the task of considering the expert medical opinion in reaching his ultimate conclusions. The appellant and the respondent are effectively arguing that different principles ought be applied to this task.
The appellant states that the factual basis underlying Dr Gupta’s report has not been proven and hence does not satisfy the requirements for expert evidence as described in Makita. The appellant also takes issue with how the Arbitrator approached and used the evidence of Associate Professor Wong and Dr Paul.
Ms Chauhan says that this is not the correct approach and that this Commission, not being bound by the rules of evidence, is guided by cases such as Paric and Hancock.
In Makita, Heydon JA found as follows:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”[60] (emphasis added)
[60] Makita, [64].
And further:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).[61] (emphasis added)
[61] Makita, [85].
In this case, the appellant mounts its argument upon an allegation that the relevant connection between Dr Gupta’s opinion and the facts is absent and consistent with the remarks outlined above from Makita, Dr Gupta’s opinion should be accorded little or no weight.
The contrary proposition maintained by Ms Chauhan, as I have described above, relies upon cases such as Paric and Makita.
In Paric, Samuels JA found as follows:
“I have myself looked at the evidence and looked at the hypothetical facts and while I would agree that in some respects the material put does differ in terms from what was proved, all in all I would regard it as open to the tribunal of fact to consider that it was a fair foundation and remains a reasonable support for the opinions which were sought and given.
We were referred to Wigmore on Evidence, 3rd ed, vol II, s 680 and foll at 6, in which this area of the law is discussed. In a footnote which I find in the 1940 edition (at 800), there is a reference made to a decision of Boardman v Woodman (1866) 47 New Hampshire 135. I confess I have not looked at the original report, but the passage extracted by the learned author, which I would fully accept as accurate, is as follows:
‘… so proved as to resemble as near as may be the case under consideration; the jury can judge whether the case supposed is so far like the one they are considering as that the opinion of the expert on the supposed case is any guide to them.’
Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”[62] (emphasis added)
[62] Paric, 509–510.
The principles discussed in Makita by Heydon JA in terms of their application to proceedings in the Commission need to be considered in light of Hancock. The Commission is not bound by the rules of evidence[63] and in Hancock, Beazley JA said as follows:
[63] Section 354 of the 1998 Act.
“70. In ASIC v Rich & Ors [2005] NSWCA 152; (2005) 218 ALR 764, an issue arose as to the basis upon which an expert could express an opinion. In that case, the respondent had submitted that the principles stated in Makita required that, for expert evidence to be admissible, it must be based on facts set out in the report and on no other facts, and that the opinion expressed be arrived at by the process of reasoning set out in the report and by no other process of reasoning. The alternative approach, advanced by the appellant, was that it was sufficient if the expert identified the facts and reasoning process which the expert asserted to be an adequate basis for the opinion expressed in the report.
71. The resolution of this issue involved Spigelman CJ (with whom Giles and Ipp JJA agreed) undertaking a detailed analysis of the underlying basis of Heydon JA's reasoning in Makita, by reference, in particular, to the reasoning of Gleeson CJ in HG v R [1999] HCA 2; (1999) 197 CLR 414 to which Heydon JA had made extensive reference. At [99], Spigelman CJ observed that the observations of Gleeson CJ did not represent the ratio of HG in a manner that was binding on the Court of Appeal. Nonetheless, his Honour proceeded on the basis that the reasoning of Gleeson CJ was correct and expressed his agreement with that reasoning in any event.
72. The analysis is lengthy. It is sufficient for the purposes of my reasons to refer only to the limited passages set out below. At [39], Gleeson CJ accepted that an expert's report may be based on assumed facts. His Honour said:
‘An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie’s written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.’ (footnotes omitted)
73. Of particular importance to the present case is the acceptance by Spigelman CJ of the following statement of Gleeson CJ in HG as to what is required for expert evidence to be admissible. Gleeson CJ stated, at [41], that such expert evidence:
‘...required identification of the facts [the expert] was assuming to be true , so that they could be measured against the evidence; and ... demonstration or examination of the scientific basis of the conclusion.’ (Spigelman CJ's emphasis)
74. This is a principle of long standing. It was referred to by the High Court in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, at [9], where the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’ (emphasis added)
75. Gleeson CJ referred to Ramsay v Watson in his reasons in HG, and in Makita Heydon JA also expressly adopted the reasoning in Ramsay v Watson. As Heydon JA said, at [66], that case was a classic illustration of the principle that the ‘assumed facts’ need not be itemised by the expert witness in an artificial way. His Honour referred to the High Court's observation in Ramsay v Watson that:
‘... it was permissible for a doctor to narrate the history obtained from a patient as part of the foundation of the doctor's opinion on the patient's health, even though the narration was not admissible to prove the facts of the history unless some exception to the hearsay rule were satisfied.’
76. Notwithstanding that an expert may give an opinion on assumed facts, the High Court in Ramsay v Watson observed, at 649, that if the history obtained by the doctor and upon which the doctor based her or his expert opinion is not supported by admissible evidence, the opinion ‘may have little or no value, for part of the basis of it is gone’.”
From [79] onwards in Hancock, Beazley JA dealt with the application of Makita to proceedings in the Workers Compensation Commission. Her Honour (as she then was) found as follows:
“82. Although not bound by the rules of evidence, there can 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. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.” (emphasis added)
Based upon a consideration of the authorities described above, I do not accept the appellant’s essential submission that strict non-compliance with Makita is fatal to the learned Arbitrator placing any reliance upon Dr Gupta’s report. I do not read the authorities of Makita, Paric and Hancock as necessarily presenting an either/or choice for a decision maker. In my view, Makita sets out in comprehensive terms the proper approach for the tribunal of fact when considering expert evidence. In Makita, Heydon JA himself refers to Paric and acknowledges that an opinion will be admissible and material even though the facts established may not correspond with complete precision.[64] I do not therefore read Makita as standing for the rather stark proposition asserted by the appellant in this matter, that namely if the facts are not proven to substantiate the opinion, the opinion is inadmissible or ought be accorded little or no weight. At [64] of Makita, Heydon JA acknowledges that “other admissible evidence may be available to substantiate the opinion”.
[64] Makita, [64].
Makita of course was decided before Hancock. Hancock specifically dealt with how Makita is to be applied in the context of a tribunal not bound by the rules of evidence. As described above, Beazley JA says that strict compliance with each and every feature referred to by Heydon JA in Makita is not required. What is required is for the Commission to be satisfied that the expert evidence provides a satisfactory basis upon which the Commission can make its findings.
The approach taken in the Commission is as outlined above in cases such as Paric and Hancock, and it is through this lens that I will examine whether or not the learned Arbitrator was correct in his approach to assessing the expert testimony. In this regard I do not read the appellant’s submissions as being grounded wholly on a strict application of the Makita principles. Rather I think a fair reading of the appellant’s submissions with respect to Ground One do take sufficient issue with respect to the approach to the expert testimony such as to require assessment as to whether or not such evaluation was undertaken in accordance with authority.
The starting point is of course the evidence.
Ms Chauhan in her statement gives evidence about her position as a bank officer and the duties associated with that role.[65] Ms Chauhan also states her recollection of the onset of her symptoms.[66] Ms Chauhan also gives evidence about steps she took to manage the pain in her right arm by using her left arm.[67]
[65] ARD, pp 1–2, [9]–[11].
[66] ARD, p 2, [12]–[13].
[67] ARD, p 3, [19]–[20].
Ms Chauhan was referred to Dr Gupta. In his report of 27 March 2017,[68] Dr Gupta took the following history:
“Many thanks for this referral. It is quite a complex case. Madhu is a 43-year old lady who works as a bank officer and has done so for several years. This obviously involves sitting at a desk using computers and telephones.
…
I do feel that cubital tunnel syndrome is related to an occupational exposure with lots of leaning on her elbows as well as sitting at a desk using a computer and telephone. I understand there was a previous diagnosis of carpal tunnel syndrome which is patently not correct.”
[68] ARD, pp 51–52.
After the date of this report Ms Chauhan underwent a right cubital tunnel release and in the operative notes the following is recorded:
“Ulna nerve identified in cubital tunnel. Noted to be contused in this region. Healthy appearing proximally and distally. Released at the cubital tunnel, then proximally and distally under vision.”[69]
[69] ARD, p 48.
In the other medical reports, as described above, the doctors have variously taken histories of Ms Chauhan’s work duties which involve the use of a telephone, keyboard and mouse at her workstation.
It is true that Dr Paul, the specialist retained by the appellant to examine Ms Chauhan, diagnosed clinical carpal tunnel disease and inflammatory connective tissue disorder. Whilst this is a different diagnosis from that reached by Dr Gupta, Dr Paul obtained a history of the desk bound duties performed by Ms Chauhan, which are very similar to those recorded by Dr Gupta, before stating:
“The symptoms are exacerbated by activity both at home and at work.”[70]
[70] Reply, p 7.
Associate Professor Wong perhaps records the most scant details of Ms Chauhan’s duties, recording “she has been working in an office for St George Bank for the last 10 years”[71] before providing a diagnosis in the following terms:
“Soft tissue injury to the cervical spine with nonverifiable radicular complaints. Right cubital tunnel syndrome requiring decompression surgery. Possible ulnocarpal impaction right wrist.”
[71] ARD, p 43.
Associate Professor Wong then proceeds to recount that in his opinion this condition was caused or materially aggravated by the nature and conditions of her employment at the St George Bank [sic, Westpac]. The basis of how this opinion was reached is not spelt out.
Dr Dowla records the history of bilateral wrist pain before recording:
“Since June, it has become very constant and variable in both wrists. The pain is worse after typing and using the mouse.”[72]
[72] ARD, p 32.
The learned Arbitrator closely examined this medical material. The learned Arbitrator was correct to accord little weight to the opinion of Associate Professor Wong. Indeed there is simply no sufficient factual basis contained within Associate Professor Wong’s report, consistent with Paric and Hancock, for it to be accorded much, if any, weight at all. This then essentially leaves the contest in the medical evidence to the question of resolving the differences between the diagnoses reached by firstly Dr Gupta and secondly Dr Paul for the appellant. In approaching this task, it was entirely appropriate for the learned Arbitrator to glean from the various reports, including that of Associate Professor Wong, the fact that Ms Chauhan gave a history that her work duties caused an increase in her symptoms. This is a fact which has not been seriously challenged. Rather, the contest is whether these symptoms relate to what Dr Paul considers to be a constitutional condition or Dr Gupta’s diagnosis of the aggravation of cubital tunnel syndrome. Ultimately, the Arbitrator accepted the view of Dr Gupta that the correct diagnosis of Ms Chauhan’s condition was cubital tunnel syndrome as evidenced by the contusion of the ulnar nerve identified on surgery.[73]
[73] Reasons, [88(g)].
It is true that there is no history recorded of Ms Chauhan leaning on her elbows. This point has been made by the appellant. It is also true however, that the history given by Ms Chauhan and that taken by in particular Dr Gupta and Dr Paul, accurately reflects the desk duties she was undertaking with her computer and telephone.
As described above in Paric, it is not necessary that the facts so proved must correspond with complete precision to the proposition on which the opinion has been based. The question was whether there was “a fair climate” in which the expert views could properly flourish and in my opinion such a fair climate exists in this case. The learned Arbitrator had before him what I consider to be the unchallenged evidence (save and except for Dr Gupta’s statement about Ms Chauhan leaning on her elbows) as to her work duties. There is no challenge to Ms Chauhan’s complaints of increasing pain as a result of performing those duties. The learned Arbitrator then set out in detail the seven reasons as to why he was persuaded that Ms Chauhan’s employment was causally related to the aggravation, acceleration, exacerbation or deterioration of her cubital tunnel syndrome.[74] This involved the appropriate and correct consideration of the medical evidence and the application of a common sense evaluation of the causal chain. As his Honour Kirby P (as he then was) said in Kooragang Cement Pty Ltd v Bates:[75]
“In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including where applicable, expert opinions.”[76] (emphasis added)
[74] Reasons, [88].
[75] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[76] Kooragang, 463–464.
I think it is tolerably clear that the learned Arbitrator has identified the disease suffered by Ms Chauhan, namely cubital tunnel syndrome, and then after a consideration of the evidence found that it has been aggravated, accelerated, exacerbated or deteriorated by virtue of her work as a bank officer with the appellant. This finding was plainly available on the evidence and in accordance with authority and discloses no error on the part of the learned Arbitrator.
As a result, Ground One has not been established.
As to Ground Two
The appellant in Ground Two makes a specific allegation of error in the following terms. It is stated by the appellant that the learned Arbitrator has committed an error of law by failing to consider whether or not the alleged incapacity was a result of any injury suffered by Ms Chauhan. Indeed in this appeal ground, the appellant goes so far as to challenge whether or not the fact of Ms Chauhan suffering an injury had been established.
This ground has no merit.
The learned Arbitrator at Reasons [89], having reviewed the evidence, made findings that Ms Chauhan’s cubital tunnel syndrome had been aggravated, accelerated, exacerbated or deteriorated by her employment. To make good this appeal ground, that specific finding needs to be disturbed by the appellant. For the reasons I have outlined with respect to Ground One above, the appellant has not succeeded in the task of disturbing that finding.
However, lest there be any doubt about this approach, it is necessary, given the terms of Ground Two, to examine how “injury” has been dealt with by this Commission and the predecessor Compensation Court.
In Lyons v Master Builders Association of NSW Pty Ltd[77] Neilson CCJ observed as follows:
“Indeed, if I might respectfully say so, the majority decision in Colliar v Bulley really fails to distinguish between the receipt of the injury or the injurious event and the pathology arising from the event. Unfortunately, the word ‘injury’ refers to both the event and the pathology arising from it. It is often necessary to draw the distinction. The Act makes the receipt of injury compensable, not the injury itself.”[78]
[77] (2003) 25 NSWCCR 422 (Lyons).
[78] Lyons, 429.
This approach has been followed by this Commission, for example in cases such as Department of Juvenile Justice v Edmed.[79] In this case the learned Arbitrator has found, based upon not speculation but Dr Gupta’s findings upon operative intervention, that Ms Chauhan suffered from cubital tunnel syndrome. The learned Arbitrator has accepted that this disease or condition has on the medical evidence, when taken with Ms Chauhan’s complaints, been relevantly aggravated by her employment with the appellant which is precisely the type of circumstance that s 4(b)(ii) of the 1987 Act covers and which his Honour Neilson CCJ (as he then was) avers to in Lyons. Ground Two is not made out and is thus dismissed.
[79] [2008] NSWWCCPD 6; 7 DDCR 288.
Corrigendum
The respondent to the appeal has identified an error in the Certificate of Determination, in that the deemed date appearing in Order 1 of the Certificate of Determination reads 1 September 2015 when the formal finding made by the learned Arbitrator found that the entitlement to compensation arose not from that date but rather 1 September 2017. Having reviewed the learned Arbitrator’s decision, I accept that this is an error which requires formal amendment on the Certificate of Determination so that Order 1 then reads consistently with Order 7.
This issue has been brought to the attention of the appellant’s representatives who have, obviously subject to the result of the appeal, accepted that the date in Order 1 is in error and ought be amended as sought by the respondent.
DECISION
Order 1 of the Certificate of Determination dated 11 June 2019 is amended by deleting the date 1 September 2015 and inserting in its place the date 1 September 2017.
Otherwise, the Arbitrator’s Certificate of Determination dated 11 June 2019 is confirmed.
Judge Phillips
PRESIDENT
10 December 2019
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