Yang v Wilkhahn Asia Pacific - [2015] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Yang v Wilkhahn Asia Pacific [2015] NSWWCCPD 4
APPELLANT:	Rong Mei Yang
RESPONDENT:	Wilkhahn Asia Pacific
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-1446/14
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	12 September 2014
DATE OF APPEAL DECISION:	23 January 2015
SUBJECT MATTER OF DECISION:	Challenge to factual findings; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; requirement to establish error; weight of evidence
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gorman Jones Solicitors
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The findings made by the Arbitrator and the award made as found in Certificate of Determination dated 12 September 2014 are confirmed.

BACKGROUND

Mrs Rong Mei Yang commenced employment with Wilkhahn Asia Pacific (the respondent) in 1999 as a sewing machinist. Her duties involved the stitching of leather upholstery fitted to office chairs which were manufactured by the respondent. It is not in dispute that those duties were physically arduous. It was perfectly clear from the evidence before the Commission that Mrs Yang was an exceptionally hard worker whose services were valued by her employer. Documents in evidence established that Mrs Yang was regularly paid bonuses and received pay increases following regular reviews. In 2002, Mrs Yang was promoted to the position of leading hand.
Mrs Yang alleged that, by reason of the physical demands of her work, she suffered injury to her neck, lumbar spine and arms. In August 2012, Ms Yang consulted Dr Xin Guang Shi, general practitioner at Burwood by reason of a worsening of her physical symptoms. In November 2012, Mrs Yang consulted Dr Eric Ho, general practitioner at Burwood. Dr Ho issued a medical certificate, which was not in the form of a WorkCover Certificate, on 6 November 2012. Mrs Yang continued working and was at first reluctant to present the certificate to her employer. She continued with her duties until the Christmas break in December 2012. Mrs Yang stated in evidence that she handed that certificate to her supervisor in December when she was “no longer capable to do the lifting due to severe pain”. Mrs Yang’s supervisor, the respondent’s production manager, Mr Martin Beier, stated in evidence that in December 2012 he was informed by Mrs Yang that she did not wish to continue as leading hand “because she can’t deal with her colleagues anymore because they don’t like her”. Mr Beier advised Mrs Yang to consider her position carefully over the Christmas holiday and to speak with him again. No report of injury was made until presentation of a WorkCover medical certificate in January 2013.
On 7 January 2013, Mrs Yang consulted Dr Ven Tan, general practitioner at Campsie, by reason of continuing physical symptoms. Dr Tan issued a WorkCover NSW Medical Certificate on that day which described the occurrence of the injury as “long term repetitive sewing leather and heavy lifting for many years”. The date of injury was nominated in that certificate as 25 August 2012. Dr Tan certified his diagnosis as being “cervical disc lesion with radiculopathy, R shoulder injury and low back pain”. That initial certificate certified Mrs Yang as being unfit until 14 January 2013. Mrs Yang presented that certificate to her employer and did not return to duties following the Christmas New Year holiday break. Mr Beier stated in evidence that Dr Tan’s certificate was the first notice received by the respondent concerning Mrs Yang’s alleged incapacitating injuries.
A claim for compensation benefits was made by Mrs Yang following which weekly benefits and medical expenses were paid by the respondent’s insurer. In April 2013, Mrs Yang was certified as being fit for suitable duties and she returned to work, working three hours per day, initially three days per week. Those duties were increased to four hours per day, four days per week, after one month. On 2 May 2013 the insurer declined liability for further weekly payments. It seems that Mrs Yang continued performing part time suitable duties until 1 May 2014. Mrs Yang has not returned to work since that time.
The dispute between the parties concerning Mrs Yang’s entitlement to weekly compensation came before the Commission following commencement of these proceedings on 26 May 2014. The matter came before Arbitrator Catherine McDonald on 25 August 2014. The matter proceeded to hearing, following which the Arbitrator reserved her decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 12 September 2014, in which the following determination was recorded:
“The Commission determines:
1. Award for the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

THRESHOLDS MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act (1998) (the 1998 Act) have been met.

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.”
The respondent consents to this appeal being heard on the papers. Mrs Yang submits that “it is inappropriate to determine this matter ‘on the papers’ as further oral argument is required” (at 2.3 of submissions on this appeal). Mrs Yang has provided lengthy submissions in support of the grounds of appeal upon which reliance is placed. Nowhere in those submissions is any suggestion made that further argument is required.
Having regard to Practice Directions Nos 1 and 6 and the documents that are before me I am satisfied that I have sufficient information to proceed on the papers without holding any conference or conducting a hearing and that this is the appropriate course in the circumstances.

THE ARBITRAL PROCEEDINGS

Mrs Yang proceeded upon an amended Application to Resolve a Dispute (amended Application) which had been filed with the Commission on 26 May 2014. The relevant amendment concerned an additional allegation of injury to Mrs Yang’s left upper extremity. The date of injury is stated to be 26 August 2012 and “the nature and conditions of the employment from 7 June 1999 to January 2013”. The description of injury which appeared at Pt 4 of that Amended application is as follows:
“The Applicant was employed on a full-time basis as a sewing machinist for nine years manufacturing office leather chairs. The work was physically hard and involved a lot of heavy weight lifting, stretching, pushing and pulling. She gradually developed pain at her cervical and lumbar spine. The nature and conditions of the Applicant’s employment aggravated, exacerbated or caused her injuries or alternatively, such nature and conditions of the employment aggravated, exacerbated or caused a disease of gradual onset.”
Each party was represented by counsel at the hearing and proceedings were recorded. No oral evidence was adduced before the Arbitrator. A transcript of submissions put by counsel has been produced and made available to the parties.

Mrs Yang’s evidence

The evidence of Mrs Yang is to be found in a written statement made on 23 September 2013. Mrs Yang placed particular emphasis upon the arduous nature of the work performed by her and her efficient execution of those duties. Those matters are not in dispute. Her evidence as to injury may be summarised as follows:
(a)   Mrs Yang was first injured in 2002 when she experienced pain in her left elbow joint when lifting a heavy chair. Mrs Yang stated that the injury was verbally reported to her then supervisor, Ross;
(b)   Later in 2002 Mrs Yang had injury to her left shoulder when moving chairs. That was again reported to Ross. Mrs Yang stated that it was then that she requested Ross to modify her duties. Ross arranged for someone from the upholstery section to help Mrs Yang;
(c)   Mrs Yang described a feature of her duties concerning lifting of chairs onto a 50 cm high platform. She stated that the task was difficult and that she would often be struck by the metal legs of the chairs causing bruising and that her “veins were popped out”;
(d)   Mrs Yang described her work on cantilever chairs which had no wheels. They were more difficult to move than the other chairs handled by her. She was required to stack and unstack those chairs, causing “tremendous strain on [her] body and [she] was always fatigued and extremely exhausted when [she] came home”.
(e)   In 2006, at the time when the factory was relocated, Mrs Yang fell from a ladder landing on her back, striking a fan as she fell. That incident caused an injury to her lower back and she had a lump on her head. Mrs Yang consulted Dr Jenny Lam general practitioner of Burwood. She was prescribed pain killers. Mrs Yang returned promptly to work as she was anxious to ensure that her section, of which she was the leading hand, “was organised properly”. Mrs Yang began to favour her left side placing her weight on her right side when doing her tasks. She began to rely upon pain killers;
(f)    Mrs Yang continued performing her duties with difficulty and was in “constant pain”. In August 2010 she consulted Dr Ho, who practised with Dr Lam, and reported her pain. It is stated that she was referred for a course of physiotherapy at Burwood. She felt numbness in her “right side” on a number of occasions and felt extremely weak. Her arms felt like lead and she relied upon medication;
(g)   Painful symptoms continued and worsened. In August 2012, Mrs Yang sought medical advice from Dr Xin Guang Shi of Burwood. It was stated that Dr Shi prescribed analgesics and that Mrs Yang was treated with Chinese traditional medicine, and
(h)   In approximately November 2012, Dr Ho advised Mrs Yang that her “injuries and pain were caused by [her] job and that [she] should notify [her] employer about it”. Mrs Yang stated that she did not know what to do as she did not want to cause trouble, or to be perceived as a trouble maker. She requested that Dr Ho write a letter concerning modification of her duties. Dr Ho provided a certificate “to show the company”. Mrs Yang was too embarrassed to produce that medical certificate as she did not want her employer to think that she was not capable of doing her job. She did not immediately give that certificate to her supervisor. Mrs Yang stated “…in December when I was no longer capable to do the lifting due to severe pain, I gave the certificate to my supervisor”. Mrs Yang stated that she informed her supervisor that she could no longer perform her role as a leading hand because of her injuries and that she would only be able to work as a normal sewing machinist. The statement was made that “being a leading hand was causing too much strain on [her] body”.
Mrs Yang commenced her annual leave on 21 December 2012 and was scheduled to return to work on 7 January 2013. She hoped that a rest would permit a return to work. In January 2013, she consulted Dr Ven Tan, general practitioner. Mrs Yang states that she gave an “x-ray scan”, which had been produced in August 2012, to Dr Tan. Dr Tan arranged for further radiological investigation of her neck and back. The WorkCover Medical Certificate referred to at [3] above was issued by Dr Tan.
Mrs Yang was referred to Dr Clive Sun, consultant in rehabilitation medicine and pain medicine, whom she first saw on 2 February 2013. Dr Sun arranged further radiological examination and referred Mrs Yang to a physiotherapist.
The symptoms experienced by Mrs Yang were described by her in her statement, which included pain in her neck, mid and lower back, both shoulders, as well as dizziness, pins and needles sensation in her shoulders and numbness in her neck, shoulders and fingers, as well as both legs. Mrs Yang described depression and anxiety.
Mrs Yang further stated that in April 2013, she was certified as being fit for suitable duties and returned to work as described at [4] above.

Relevant documentary and medical evidence

The Arbitrator, in the course of her reasons, provided a thorough summary of relevant documentary and expert medical evidence (between [34]–[73] of Reasons). It is convenient, to permit an understanding of the state of the evidence, to list some of that material in chronological order as follows:
(a)   6 November 2012—Non WorkCover Medical Certificate issued by Dr Ho, addressed “to whom it may concern”. That document stated that Mrs Yang has suffered from neck / chest degenerative spine disease which causes neck and back pain. Dr Ho stated that Mrs Yang “will not be able to do her duties including lifting heavy objects”;
(b)   7 January 2013—Initial WorkCover NSW Medical Certificate issued by Dr Tan. That certificate stated that the injury occurred by reason of “long term repetitive sewing leather and heavy lifting for many years”. The date of injury was nominated as 25 August 2012. The diagnosis stated in that certificate was “cervical disc lesion with radiculopathy, R shoulder injury and low back pain”. Dr Tan certified that Mrs Yang’s employment was a substantial contributing factor to that injury. That initial certificate certified Mrs Yang as being unfit for a period of one week. There are in evidence multiple certificates issued by Dr Tan thereafter;
(c)   14 January 2013—CT of the cervical spine which included the comment:
“Moderate mid cervical spondylosis with disc degeneration. Left posterolateral disc protrusion at C5/6 with calcifications was causing significant nerve root and dural sac compression, and would explain the radiculopathy.”
CT of the lumbar spine. That report includes the comment:
“mild to moderately severe lower thoracic and panoumbar spondylosis, with severe disease at L5/S1, with disc involvement. Chronic calcified disc protrusion at this level with left-sided dominance was causing significant dural sac and nerve root compression and displacement, and radiculogenic symptoms are probable.”
MSK ultrasound of the right shoulder. That report includes the following comment:
“mild SA/SD bursitis. Normal tendons of the rotator cuff.”
The above correspondence was addressed to Dr Tan.
(d)   6 February 2013—A bone scan addressed to Dr Sun demonstrated that there was a mild osteoblastic focus involving the right medial tibial plateau.
(e)   28 February 2013—MRI cervical spine. The conclusion is stated as follows:
“moderate C5/6 disc protrusion to the left mid line indenting and changing the cord. The C6/7 disc shows a further protrusion in a central direction, with small migrated superior fragment.”
MRI Lumbar Spine. The following conclusion is noted:
“multiple protrusions are seen, most pronounced at L5/S1 with focal annular tear, also on the left side indenting the sac, in contact with the S1 nerve root. The posterior disc shows high signal. Further protrusion is seen at the L4/5 level.”
MRI Left Shoulder – the findings noted include the following conclusion:
“the supraspinatus tendon shows subdeltoid bursitis, tendinopathy in the distral 1.5 cm with minute intra substance tear. Subscapularis tendon also shows an intra substance tear.”
(f)    16 May 2014 – WorkCover Certificate issued by Dr Tan which is somewhat confusing, however it appears that Mrs Yang was certified as having no current work capacity for any employment from 16 May 2014 for a period of two weeks.
Mrs Yang tendered a report from Dr Tan dated 23 July 2014. Dr Tan was first consulted on 7 January 2013 at which time he was given a history that Mrs Yang “has suffered from multiple injuries as the result of working at [the respondent] since 7 June 1999”. Dr Tan recorded the occurrence of an injury in 2002 when Mrs Yang hurt her left elbow after lifting a heavy chair. Also recorded was an injury to Mrs Yang’s left shoulder in late 2002. In 2006, Mrs Yang injured her head and low back after a fall off a ladder. Dr Tan further records in that report that Mrs Yang’s pain gradually “got worse and on 26 August 2012, she decided to see Dr Eric Ho [sic, Dr Shi] for further treatment”. Physiotherapy was then prescribed. Mrs Yang gave Dr Tan a history of performing heavy lifting in October 2012 and that subsequently “she collapsed and visited Dr Eric Ho”. Dr Tan incorrectly records that Mrs Yang “continued to work until January 2013”. Dr Tan expressed the opinion that Mrs Yang “has multiple injuries as a result of her work. She has no capacity to return to pre-injury duties”. The opinion was expressed that Mrs Yang was fit for suitable or modified duties with no lifting exceeding 5 kg and with limited working hours.
Mrs Yang tendered a report of Dr Sun dated 26 June 2013. Dr Sun first examined Mrs Yang on 2 February 2013 following referral by Dr Tan. A history was recorded that Mrs Yang:
“…developed gradual onset of neck, back and left arm symptoms over the years which she attributed to lifting, stacking chairs and cleaning tasks at work. The work station for sewing leather requires her to lean forward when working, she also had a fall off a step ladder in 2006.”
Dr Sun expressed the opinion that “her presentation is consistent with injuries sustained from the nature and conditions of her employment”. Dr Sun stated that Mrs Yang required ongoing treatment.
Mrs Yang tendered a bundle of documents which appear to comprise her personnel file. That file includes a number of documents relevant to Mrs Yang’s state of health during the currency of her employment with the respondent. It is convenient to set out relevant matters in chronological order as follows:
(a)     8 September 2003—Non WorkCover medical certificate issued by Dr Jenny Lam concerning left forearm pain. That certificate stated that Mrs Yang should not do lifting between 8 September 2003 and 15 September 2003. There is no mention of any work relationship to the onset of that pain;
(b)     15 October 2003—a hand written document addressed “To whom it may concern” from Dr Eric Ho stating that Mrs Yang “is currently having tendonitis of her left shoulder, elbow and wrist. She is advised not to carry heavy objects or do repetitive jobs with her left arm. Consideration for her ailment is much appreciated”;
(c)     23 July 2004—Certificate headed “To whom it may concern” from Dr Eric Ho stating that Mrs Yang “is suffering from hypertension and arthritis and she would have difficulty to cope with physically heavy duties. Special consideration given [sic] to Mrs Yang in regard to this”;
(d)     25 July 2004—A typed letter signed by Mrs Yang addressed to her then supervisor Ross stating that her health had been declining at a rapid rate due to many problems associated with her age and work environment. Mrs Yang stated in that correspondence that she had been to the doctor. Reference was made to Dr Ho’s certificate. Mrs Yang informed Ross in that correspondence that she had been advised that she should not participate in any physically demanding duties such as heavy cleaning and heavy lifting. The letter concluded “special considerations will be need [sic] as any of those activities could lead to some dangerous health risks.”
(e)     16 March 2006—WorkCover NSW medical certificate issued by Dr Jenny Lam relating to work injury being a fall which occurred on 16 March 2006, the diagnosis being soft tissue injury to “right scalp and L back”, and
(f)   20 March 2006—WorkCover NSW medical certificate from Dr Jenny Lam certifying that Mrs Yang was fit for pre-injury duties.

The respondent’s lay evidence

The respondent relied upon a lengthy statement made by Mr Beier made on 11 August 2014. Mr Beier has known Mrs Yang for a period of 10 years and has been her direct supervisor for the past five years. Mr Beier described the duties performed over the years by Mrs Yang. Those duties, whilst arduous, did not involve as much heavy lifting or cleaning as has been described by Mrs Yang in her evidence.
Mr Beier stated that he had had hour long meetings with Mrs Yang on a regular basis during which complaints were made by her that she had difficulty getting along with her co-workers. Mrs Yang did not state to Mr Beier that the leading hand duties caused her a lot of physical strain and mental fatigue. Mr Beier stated that in December 2012 Mrs Yang informed him that she did not wish to be a leading hand as “she was doing more work than the others and she requested we do a separate report for each and every sewing machinist”. Mrs Yang stated that her colleagues did not like her. Mr Beier advised Mrs Yang that he wanted her to consider matters carefully over the Christmas holiday and confirm with him in January 2013 what she would like to do. A WorkCover medical certificate was handed to Mr Beier by Mrs Yang in January 2013. The respondent had no report of these injuries prior to January 2013.
Mr Beier stated that the medical certification nominated an injury date as being 25 August 2012. That date was a Saturday and Mrs Yang was not at work on that day. Mr Beier stated that Mrs Yang “appeared to be fine whilst she was working [at the respondent]”. She did not appear to be incapacitated.

The evidence of Dr Wallace

The respondent relied upon the report of Dr Raymond Wallace, orthopaedic surgeon, dated 5 March 2013. Dr Wallace examined Mrs Yang on 26 February 2013 for the purpose of providing an expert opinion concerning her allegations of injury and incapacity. Dr Wallace recorded a history that Mrs Yang had noticed the gradual onset of pain in her neck and lumbar spine in the course of her duties at work in 2008. No specific work related injury was described. No medical review or treatment was obtained at that time. She was “initially reviewed by her Local Medical Officer Dr Tan [sic] at Campsie in August 2012 complaining of neck and back pain”. Dr Wallace further recorded the history that Mrs Yang was reviewed by Dr Tan in January 2013 following which she underwent investigations of her cervical and lumbar spine.
Dr Wallace conducted physical examination of Mrs Yang and viewed the radiological material noted above. His diagnosis was:
“26 August 2012 – Spontaneous onset of neck and back pain.
1. Pre-existing degenerative cervical spondylosis – non work related.
2. Pre-existing degenerative lumbar spondylosis – non work related.”
It was Dr Wallace’s opinion that there was no evidence that Mrs Yang had suffered any work related injury at her cervical or lumbar spine. He expressed the view that her symptoms are “due to pre-existing degenerative cervical and lumbar spondylosis which is constitutional in origin and not work-related”. Dr Wallace further stated that the nature and conditions of Mrs Yang’s employment with the respondent “are not the main contributing factor to her cervical and lumbar spinal disability”. He further stated that Mrs Yang would have “noted the onset of cervical and lumbar spinal symptoms at about the same time or same stage of her life had she not been at work or employed in that employment”.
In a subsequent report dated 25 March 2013, Dr Wallace stated that there was “no objective medical evidence whatsoever that Mrs Yang suffered any injury to her bilateral shoulders”. Dr Wallace noted that, on clinical examination, Mrs Yang had demonstrated a symmetrical range of movement at her bilateral shoulders and no tenderness.
I note in passing that the respondent’s insurer placed reliance upon the opinion of Dr Wallace at the time liability was declined in May 2013.

Submissions before the Arbitrator

Counsel appearing on behalf of Mrs Yang placed emphasis upon the physical demands of the work performed by her throughout the years. It was put that those activities “have resulted in the types of symptoms that she complained of during the course of her employment” (T5). Reference was made by counsel to the certificate of Dr Ho dated 15 October 2003 (incorrectly stated as being 2013) concerning the diagnosis of tendonitis of the left shoulder, elbow and wrist. It seems to have been put that such evidence was relevant to the question as to the occurrence of injury. Reference was also made to Dr Ho’s certificate issued in July 2004 (incorrectly stated as being July 2014) concerning hypertension and arthritis. Again it appears that counsel placed reliance upon that documentary material as proof of injury.
The Arbitrator raised with counsel the question as to whether the allegation concerned “an injury or a disease” (T9). Counsel responded by submitting that injury was alleged to have occurred on 26 August 2012 to the neck and lumbar spine and that the work had had a “cumulative effect in the last ten years up until [August 2012]” (T9). The Arbitrator responded by enquiring as to whether it was alleged that “it’s a series of traumata you say up until that date?” (T10). Counsel responded that it was alleged that there was a series of traumata. It was argued that there was a “pre-existing condition” and that “the main contribution to an aggravation of that condition has been the work that [Mrs Yang has] been doing” (T10).
Counsel proceeded to suggest in submissions that the injury alleged involved “a combination of various incidents that [Mrs Yang] has described in her statement…consistent with injuries sustained to [sic] the nature of [sic] conditions of her employment” (T10). That last proposition was put placing reliance upon the evidence of Dr Sun. It was later argued that Dr Sun’s opinion “is acceptable when one looks at the whole history and the high motivation of the worker” (T13).
The thrust of submissions put on behalf of the respondent was that any symptoms experienced by Mrs Yang related to an underlying medical condition but that, as opined by Dr Wallace, work activity was not causally related to those symptoms.

The Arbitrator’s decision

The documentary evidence before the Commission was identified by the Arbitrator at [9] of her Reasons. The Arbitrator proceeded to summarise the detail of both the lay and expert medical evidence which was before her (between [12] and [73] of Reasons).
Following a summary of submissions put on behalf of the parties, the Arbitrator proceeded to address the question as to whether Mrs Yang had established the occurrence of a “frank injury” on 26 August 2012. The Arbitrator noted that the “mechanism of the alleged injury is undisclosed”. It was also noted that the evidence included reference to both 25 August and 26 August 2012 as being the date of the alleged injury. Each of those days were “weekend days”. The Arbitrator noted that no evidence which predates the issue of the certificates of Dr Tan, where the August date is mentioned, includes reference to that date. The Arbitrator further noted that in her evidence Mrs Yang did not refer to an injury occurring at that time. Her evidence was that she experienced “increasing discomfort”. The Arbitrator proceeded to make the following finding (at [83] of Reasons):
“There is no evidence to permit me to find that such an injury occurred.”
The Arbitrator proceeded to address the alternative allegation made by Mrs Yang that injury had arisen from the nature and conditions of her employment between 1999 and 2013. At the outset of that consideration the Arbitrator made the following finding (at [85] of Reasons):
“Taking all of the evidence into account I cannot be satisfied that [Mrs Yang] did suffer an injury as a result of the nature and conditions of her employment with the respondent.”
The evidence was then addressed by the Arbitrator and the following observations and findings were made:
(a)     the only incident in respect of which there is contemporaneous medical support “which links a condition to her employment” (at [86] of Reasons) was the injury to her back and scalp in March 2006. Mrs Yang recovered from that injury and resumed her duties;
(b)     the medical report of Dr Ho issued in October 2012 makes reference only to “degenerative disease”. That certificate does not suggest a work relationship. The Arbitrator noted that there was a dispute on the evidence between Mrs Yang and Mr Beier that Dr Ho’s certificate had been given by Mrs Yang to Mr Beier in December 2012;
(c)     there are no reports or records in evidence from the general practitioners Dr Shi or Dr Ho. There is no evidence of medical accounts which would provide corroborative evidence concerning treatment in August 2012;
(d)     there is a dispute between Mrs Yang and Mr Beier as to what was said by Mrs Yang concerning employment matters in December 2012. The finding was made that, on the probabilities, “Mrs Yang told [Mr Beier] she wished to stop working as a leading hand, without mentioning any injury” (at [92] of Reasons);
(e)     the evidence of Dr Tan and Dr Sun does not provide “any logically argued connection between the changes observed on the investigations and [Mrs Yang’s] condition, nor do they provide a diagnosis” (at [93] of Reasons). There has been a failure by those witnesses to provide the reasons for reaching their opinions as is required by the Commission’s Practice Direction No 3;
(f)      following a consideration of the decision in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43, the following conclusion was reached (at [97] of Reasons):
“In the absence of any medical evidence which provides a diagnosis and a reasoned connection between the radiological findings, I cannot make the deficiency good by reference to Mrs Yang’s own evidence where there is a factual dispute”;
(g) Mrs Yang’s evidence does no more than indicate that the condition arose in the course of employment and therefore “[Mrs Yang] has not overcome section 9A(3) [of the Workers Compensation Act 1987 (the 1987 Act)]” (at [100] of Reasons). The following conclusion was reached:
“I am unable to find that Mrs Yang’s employment was a substantial contributing factor to her injury merely because of the work she did at the time the injury arose”;
(h)     there was no evidence to permit a finding that there was an injury resulting from the cumulative effect of Mrs Yang’s activities given the absence of medical evidence which demonstrates that the work was a substantial contributing factor to any injury. The evidence of Dr Wallace that Mrs Yang would have noticed problems at an earlier stage if the work was a substantial contributing factor to the injury was persuasive, and
(i)      there was insufficient medical evidence to make a finding that Mrs Yang’s condition was a disease or the aggravation of a disease given that the medical evidence “fails to explain any link between the findings on investigation and work and fails to provide a diagnosis of the disease allegedly suffered” (at [102] of Reasons).
The Arbitrator proceeded to conclude that she was unable to find that Mrs Yang had suffered injury within the meaning of s 4 of the 1987 Act.

DISPOSITION OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Submissions in support of the appeal include the enumeration of eight grounds of appeal each of which, it is put, constitute error of law on the part of the Arbitrator. Those submissions give rise to two difficulties. Firstly, the “grounds” relied upon do not identify with precision the error allegedly committed by the Arbitrator in the course of her reasoning. The complaints concern a suggested failure “to adequately address [Mrs Yang’s] case”, as well as a suggested failure to “provide adequate reasons in [sic] dismissing Mrs Yang’s case”. The Arbitrator’s finding concerning the insufficiency of medical evidence to establish injury by “disease or aggravation of a disease” is challenged as being “against the weight of the evidence”. General assertions are made concerning the Arbitrator’s reasoning including suggested failure to “make clear” and to “adequately address issues and evidence”. It is also asserted that the Arbitrator “failed to conduct any, or any adequate a [sic] common sense evaluation of the causal chain”. Finally, an assertion is made that the Arbitrator had failed “to properly consider the medical evidence from Dr Raymond Wallace”.
The second difficulty arises given the fact that submissions subsequently put (pages two to six of submissions) do not address the individual “grounds” relied upon, but rather appear as a narrative criticism of the Arbitrator’s reasoning process. Much of that which is put in argument appears, as is argued on behalf of the respondent, to invite a rehearing on this appeal rather than, as is required, the identification of relevant error.
In the circumstances it is proposed to address those complaints serially as they appear in submissions.
It is argued that the Arbitrator “provided an unsatisfactory explanation as to her reasons on [sic] finding that [Mrs Yang] suffered no injury…”. Reference is made to reasoning at paragraphs [75], [81]–[83] and [102]. It is asserted that the Arbitrator “showed lack of understanding of [Mrs Yang’s] case”. So far as this submission may be taken to constitute an argument that the Arbitrator had failed, as was her duty, to provide adequate reasons for her conclusion, the argument must be rejected.
I have earlier, when summarising the Arbitrator’s decision, made reference to the reasoning and findings which are addressed in this complaint (at [34] and [35] above). The Arbitrator proceeded to correctly summarise the state of the evidence concerning the allegation of a frank injury occurring in August 2012. The deficiencies in that evidence are identified by the Arbitrator and it is clear that her evaluation of the weight of that evidence, which was a matter for her to determine, was founded upon those identified deficiencies. No relevant error is demonstrated.
With respect to the allegation of “injury being a disease or the aggravation of a disease” the Arbitrator’s conclusion, at [102] of Reasons, included a plain statement that the medical evidence relied upon by Mrs Yang was “insufficient” to establish causation of a disease or aggravation of any relevant disease. That conclusion was reached by the Arbitrator after consideration of all relevant medical evidence, the application of s 9A of the 1987 Act and consideration of the reasoning of the Court of Appeal in Wyong Shire Council v Paterson [2005] NSWCA 74; 5 DDCR 13. No relevant error concerning the Arbitrator’s reasoning for her conclusion concerning this particular allegation is made out.
A complaint is made in submissions that the Arbitrator “failed to take into account the appellant’s impeccable reputation as a devoted and hard-working employee”. Whilst it is not expressly stated in the course of submissions, it seems that the argument advanced suggests error on the part of the Arbitrator by reason of her failure to take into account relevant evidence. If that was the intention of the author of this submission, the argument must be rejected. The Arbitrator had not “ignored” the relevant evidence. The evidence was faithfully recorded during the course of a careful summary of relevant facts. That the work duties performed by Mrs Yang were arduous was never in dispute. As earlier noted, this appeal is not a rehearing or a review and the matters raised in submissions concerning the relevance of Mrs Yang’s dedication to her work do not go to any question of relevant error and are rejected.
A complaint is made that the Arbitrator “chose to dismiss [Mrs Yang’s] medical evidence as insufficient, but failed to provide adequate reasoning as to how she came to this conclusion”.
The Arbitrator’s reasoning concerning the state of the medical evidence is summarised at [36] above. I am of the opinion that the Arbitrator’s reasoning concerning that issue adequately addresses all relevant evidence. Her evaluation of that evidence was a matter for her to determine and her conclusions were open to her. Any suggestion made in the submissions that the reasoning was such that error is demonstrated must be rejected.
The submissions include a somewhat confused argument concerning the Arbitrator’s preference for the evidence of Mr Beier. It was made plain by the Arbitrator that a relevant conflict existed in the evidence of Mrs Yang and that of Mr Beier concerning what was said and done during the conversation between them in December 2012. This conflict gave rise to the only relevant dispute between the parties which involved an issue of credit. This conflict, such as it was, was resolved by the Arbitrator, as stated by her at [92] of Reasons, having regard to the absence of contemporaneous medical evidence. It must be remembered that neither Mrs Yang, nor Mr Beier, gave oral evidence before the Arbitrator. No assessment of credibility founded upon demeanour was made. The Arbitrator’s conclusion was reached following a consideration of the evidence as a whole. The objective circumstances and the state of the evidence led to the Arbitrator’s conclusion as to the probable occurrences on that occasion. No relevant error is demonstrated.
It is submitted that the Arbitrator “failed to properly understand, or adequately address” the evidence of both Dr Tan and Dr Sun. It seems to be argued that the Arbitrator’s rejection of the evidence Dr Tan and Dr Sun constitutes relevant error. It must be assumed that the error suggested is one of fact. The evidence of Dr Tan as found in his report is summarised at [18] above and that of Dr Sun at [19] above. The Arbitrator’s evaluation of the evidence of Dr Tan and Dr Sun is summarised at [36(e)] above.
I am of the opinion that, whilst minds might differ concerning the evaluation of the evidence of Dr Tan and Dr Sun, the criticism of that evidence made by the Arbitrator was founded upon matters recorded in the relevant reports as well as the evidence generally and that no relevant error has been made out. It cannot be said that the circumstances addressed by Barwick CJ in Whitely Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506) have been demonstrated, that is that:
“…material facts have been overlooked or given undue or too little weight in deciding the inference to be drawn; or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the Appellate Court that the trial judge’s decision is wrong.”
I accept the respondent’s submission put on this appeal (at [3.4]) that “up to November 2012, the medical evidence, at its highest, shows that [Mrs Yang] was suffering from a pre-existing disease and was advised not to do any heavy work (being heavy lifting and/or heavy repetitive work)”. The Arbitrator’s conclusions that the allegation of causation, of both injury simpliciter and relevant aggravation, had not been made out, were available to her on the evidence and no relevant error in rejecting the evidence of Drs Tan and Sun has been demonstrated.
The submissions include a lengthy criticism of the evidence of Dr Wallace and criticism of the Arbitrator’s acceptance of that evidence. The difficulty with the argument as advanced is that, once again, it appears that the author of the submissions is seeking a review or rehearing of the dispute. Again there has been a failure to identify in those submissions any relevant error. It also seems to be suggested that the Arbitrator had failed to consider the question of causation as involving a “common sense evaluation of the causal chain” as was discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.

The evidence of Dr Wallace has been summarised at [24]–[28] above. Whilst it is correct, as asserted in submissions, that certain aspects of Dr Wallace’s evidence was accepted by the Arbitrator, it is clear from her reasoning that Mrs Yang’s failure to establish on the evidence that she had received relevant injury had come about by reason of an absence, in the Arbitrator’s opinion, of evidence in her own case capable of satisfying the Commission of that fact. The Arbitrator’s conclusion, noted at [36(h)], concerning the persuasiveness of Dr Wallace’s evidence, was one open to her on the evidence and no relevant error is demonstrated.
Mrs Yang’s challenge to the Arbitrator’s findings is rejected and the appeal fails.

DECISION

The findings made by the Arbitrator and the award made as found in Certificate of Determination dated 12 September 2014 are confirmed.

Kevin O'Grady
Deputy President

23 January 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE