Zhang v Ausco Martin Pty Ltd t/as Westin Hotel

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Zhang v Ausco Martin Pty Ltd t/as Westin Hotel [2011] NSWWCCPD 47
APPELLANT:		Yu Mei Zhang
RESPONDENT:		Ausco Martin Pty Ltd t/as Westin Hotel
INSURER:		Cambridge Integrated Services Australia Pty Ltd
FILE NUMBER:		A1-9578/10
ARBITRATOR:	Senior Arbitrator Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		15 April 2011
DATE OF ARBITRATOR’S AMENDED DECISION:		13 July 2011
DATE OF DECISION:		25 August 2011
SUBJECT MATTER OF DECISION:		Assessment of evidence; sufficiency of reasons
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bryan Gorman & Co
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:		1. The Arbitrator’s decisions made in the Certificates of Determination of 15 April 2011 and 13 July 2011 are confirmed. 2. Each party is to pay her or its own costs of the appeal.

BACKGROUND

The appellant worker, Yu Mei Zhang, was employed by the respondent employer, Ausco Martin Pty Ltd t/as Westin Hotel (Westin Hotel), as a housekeeper. Her duties included cleaning and servicing hotel suites.
Ms Zhang alleged that, on 2 October 2005, she suffered injuries to her back, neck and left shoulder while lifting a heavy mattress in the course of her employment.
On 5 October 2005, Ms Zhang completed a worker’s compensation claim form. She reported the injury occurred when she was making up a bed. She reported the nature of the injury as “lower back pain”.
Ms Zhang further alleged that, on 9 May 2006, she suffered an aggravation of her injuries when she fell on the steps at Granville railway station while on her way to work, although that incident does not appear to be the subject of a separate claim.
The employer initially accepted liability in respect on the injury on 2 October 2005 and commenced weekly payments of workers compensation.
On 11 October 2007, Ms Zhang’s former solicitors wrote a letter of demand on her behalf claiming $65,000 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a 35 per cent whole person impairment and an additional $40,000 for pain and suffering pursuant to s 67 of the 1987 Act. The demand was in respect of injuries to the back, neck, both legs, the left shoulder, arm and hand, and depression.
On 11 August 2008, the employer’s workers compensation claims agent, Cambridge Integrated Services Australia Pty Ltd (Cambridge), denied liability for weekly compensation from 21 September 2008, alleging that Ms Zhang was no longer incapacitated as a result of the incident on 2 October 2005. It also denied liability for any continuing expenses associated with the treatment of Ms Zhang’s injuries.
In a further undated notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Cambridge denied liability in respect of the claims for lump sum compensation, alleging that the worker had not sustained any permanent impairment due to the incident on 2 October 2005.
On 18 November 2010, Ms Zhang filed an Application to Resolve a Dispute in the Commission, claiming weekly payments of workers compensation from 2 September 2008 and lump sum compensation in accordance with her demand of 11 October 2007.
On 10 December 2010, the Westin Hotel filed a Reply disputing liability for the weekly payments and lump sum compensation in accordance with the notices issued under s 74 of the 1998 Act.
On 15 March 2011, an arbitration hearing was conducted by Senior Arbitrator Grotte.
In a reserved decision delivered on 15 April 2011, the Arbitrator identified the issues in dispute to be:
(a)     Whether the applicant sustained an injury to her cervical spine/neck arising out of or in the course of her employment with the respondent on 2 October 2005 and whether her employment with the respondent on 2 October 2005 was a substantial contributing factor to the injury;
(b)     Whether there is any continuing incapacity resulting from work-related injuries sustained on 2 October 2005 and/or 9 May 2006;
(c)     Whether continuing medical and treatment expenses are reasonably necessary; and
(d)     Whether there is any permanent impairment in respect of the lumbar spine, the cervical spine and the left upper extremity resulting from injury to those body parts on 2 October 2005.
The Arbitrator found in favour of the employer in respect of the allegations of injury to the neck/cervical spine, but in respect of all other claims she found in favour of Mrs Zhang. The Commission issued a Certificate of Determination in the following terms:
“1.Award for the respondent in respect of any allegation of injury to the neck/cervical spine.
2.The respondent to pay the applicant weekly benefits compensation pursuant to section 40 as follows:
(a)From 21 September 2008 to 30 June 2009 at the rate of $353.36 per week; and
(b) From 1 July 2009 to date and continuing at the rate of $365 per week.
3.The respondent to pay the applicant's medical and treating expenses in respect of the lumbar spine and left upper extremity/left shoulder scapula from 21 September 2008 to date and continuing upon production of accounts or receipts.
4.The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment in regard to left upper extremity (left shoulder) and the lumbar spine resulting from injury to those body parts on 2 October 2005.
5.The documents to be included in the material to go to the AMS are the Application to Resolve a Dispute together with attachments, the Reply together with attachments and documents attached to the Application to Admit Late Documents dated 22 February 2008.”
On 13 July 2011, to rectify an omission with respect to the absence of an order for costs, the Commission issued an Amended Certificate of Determination which was in identical terms to the Certificate of Determination of 15 April 2011, with additional orders:
“6. The respondent to pay the applicant’s costs as agreed or as assessed.
7.I am satisfied that this matter ought to be certified complex in accordance with Schedule 6, Item 4 of the Workers Compensation Regulation 2003 because of the complex factual matters in dispute, including the allegation of several injured body parts. I am satisfied that an uplift of 15 per cent is justifed, applicable to both parties.”
Ms Zhang seeks leave to appeal the Arbitrator’s decision concerning the findings with respect to the allegations of injury to the cervical spine.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

The monetary thresholds in s 352(3) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s initial decision in compliance with s 352(4) of the 1998 Act.

ON THE PAPERS REVIEW

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.

NATURE OF APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010. 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 regulated by s 352(7) which provides:
“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.”

ISSUES IN DISPUTE

The issues in dispute on the appeal concern the Arbitrator’s:
(a)treatment of the evidence and her findings with respect to the allegations of injury to Ms Zhang’s cervical spine. In particular, it is alleged that the Arbitrator failed to take into account the applicant’s evidence given in her statement to the effect that the symptoms in her cervical spine were masked by the effect of and treatment of other injuries;
(b)alleged failure to have regard to the whole of the opinion of the worker’s treating general practitioner; and
(c)failure to give adequate reasons for rejecting the applicant’s evidence of injury to the cervical spine.

EVIDENCE

Ms Zhang’s evidence

Ms Zhang submitted a signed statement of evidence dated 10 November 2010. Although she had the aid of an interpreter at the arbitration hearing, she was not called to give oral evidence.
Ms Zhang stated that, on 2 October 2005 at about 10.00 am, she was changing bed linen on a large, heavy, king-sized bed. She described the bed as having only one mattress twice the usual thickness of a mattress, which sat on a wooden platform on wheels. Unlike the normal arrangement, where there were two mattresses, a top and a base unit, this particular mattress was all-in-one and, as a consequence, it was twice as heavy as a regular mattress.
While bending to lift one side of the mattress with her left arm to tuck the sheet under the mattress with her right hand, Ms Zhang heard a clicking sound and felt “a sharp pain in the middle of her back and neck region”. She had to kneel down to attend to the other side of the bed, but was then unable to get up due to the pain. She was taken to Auburn Hospital by taxi. She was treated as an outpatient and provided with pain-killing medication.
During the evening of 2 October 2005, Ms Zhang noticed that the pain was getting worse, affecting her left shoulder. Her symptoms became progressively worse and she sought treatment from her general practitioner, Dr Rosalind Au-Yong, on 6 October 2005. Ms Zhang was then certified unfit for work. She claims that, about three weeks after first consulting Dr Au-Yong, she complained of “neck and left shoulder pain which had gradually developed since October 2005”.
On 2 December 2005, Dr Au-Yong referred Ms Zhang to Dr Doron Sher, an orthopaedic surgeon specialising in knee, elbow and shoulder injuries.
Ms Zhang stated that, after Dr Sher injected the left shoulder, the pain in that area subsided and it was then that she noticed pain in her neck. She described the pain as being on the back of the neck, in the middle, slightly to the left side.
Ms Zhang returned to work on light duties in December 2005. She worked restricted duties and hours due to the pain in her neck, back and shoulders.
On 2 February 2006, Ms Zhang was referred by Dr Au-Yong to Dr Clive Sun, a specialist consultant in rehabilitation medicine and pain medicine. He arranged for further investigations of the back injury and recommended physiotherapy.
On 9 May 2006, Ms Zhang fell on the steps of Granville railway station on her way to work. She stated that the pain in her back became worse after that incident. She was taken to Sydney Hospital, where she was treated as an outpatient and was investigated for any additional injuries, but none were found.
Ms Zhang complained of continuing problems with her back, both legs, neck, left shoulder and arm. She described difficulties with lifting or standing for lengthy periods of time. She described various interferences with her activities of normal daily living and various aspects of her grooming due to pain in her arm and neck.

Medical evidence

Ms Zhang was taken to Auburn Hospital immediately following the incident on 2 October 2005. The hospital clinical notes record that she experienced lower back pain when tidying up a bed. The hospital provided a medical certificate certifying Ms Zhang unfit until 6 October 2005.
Ms Zhang came under the care of the general practitioner, Dr Au-Yong There is no report in evidence from Dr Au-Yong, although her clinical notes were produced. The doctor noted on 3 October 2005 that the worker reported lower back pain when tidying up a bed at work on 2 October 2005. Ms Zhang saw Dr Au-Yong every few days throughout October for treatment in respect of the lower back. On 28 October 2005, the doctor recorded “neck and left shoulder pain gradually developed upper back symptoms, soft tissue injury prescribed Mobic referred for ultrasound of left shoulder”. Dr Au-Yong continued to regularly treat Ms Zhang until May of 2006. Her notes do not reveal any further complaints of pain with respect to the neck.
Dr Au-Yong referred Ms Zhang on 2 December 2005 to Dr Doron Sher, an orthopaedic surgeon, for treatment of her back and left shoulder. She also referred Ms Zhang to Mr Eric Ku for acupuncture and physiotherapy for the shoulder and back injuries.
Dr Sher provided a report dated 14 December 2005. He recorded a complaint of a sudden sharp pain in the left shoulder, scapular region and lower back, and continuing left shoulder pain thereafter. He noted an exaggerated pain response and a refusal to follow instructions.
Dr Sher provided a further report on 9 January 2006. He was assisted by an interpreter. He noted that a more detailed history taken by him revealed that Ms Zhang initially experienced only back pain when lifting the mattress. It was not until three days later that she developed pain in the shoulder, particularly with overhead movements. She localised the pain to the posterior aspect of the glenohumeral joint. He noted significant improvement since her last visit. He injected the subacromial region with local anaesthetic and corticosteroid. He stated that the injection confirmed a diagnosis of impingement since the rotator cuff strength remained excellent.
Ms Zhang was referred by Dr Au-Yong to Dr Clive Sun, consultant in rehabilitation medicine and pain medicine. Dr Sun examined Mrs Zhang on 2 February 2006. He noted a history of injury on 2 October 2005 while lifting a mattress with the left hand, leaning forward and using the right hand to fit the bed sheet. He noted the worker developed mid-lumbar discomfort and left shoulder aching. Dr Sun recorded the details of his physical examination and recommended an MRI of the lumbar spine. He concluded his report by stating, “She did not require me to look after her left shoulder so we focused on the back”.
Dr Sun prepared further reports on 7 March 2006 and 4 April 2006, which focused on the back injury. On 26 May 2006, that is, after her fall at Granville railway station on 9 May 2006, he noted that her knees were non-tender. On palpation, there was slight increase in the tenderness at the thoracolumbar junction and over the right scapular musculature. His report of 10 June 2006 referred to the injuries to the knees and low back.
Dr Ven Tan is a general practitioner who took over Ms Zhang’s treatment from Dr Au-Yong on 15 May 2006. The history he recorded at that time concerning the incident on 2 October 2005 included a complaint of pain in the back. He also noted complaints of bilateral shoulder pains, but stated, “Not much attention was given to them because of the severity of the back pain”. In a report to Cambridge Integrated Services dated 1 June 2007 he opined that it was likely Ms Zhang suffered a soft tissue injury aggravating her pre-existing back and shoulder pain.
On 15 June 2006, Dr Sun noted that Ms Zhang’s symptoms in the shoulder had ceased and she declined a further injection. On 13 July 2006, Dr Sun noted that the pain in the lower back had improved. Ms Zhang was reporting backache instead of sharp pain, with symptoms more noticeable after prolonged standing or sitting. In his report of 24 August 2006, Dr Sun noted considerable improvement. He noted that Ms Zhang felt ready to increase her working hours and was maintaining an exercise regime which consisted of jogging on her treadmill at home.
Dr Sun reviewed Ms Zhang on 21 September 2006. She had suffered an acute exacerbation from a coughing fit two days earlier, resulting in severe left-sided back pain. In a further report on 23 January 2007, Dr Sun recommended an ultrasound and bone scan of the left shoulder.
Ms Zhang was reviewed again by Dr Sun on 20 February 2007 and 3 July 2007. The latter examination showed restricted flexion and abduction of the left shoulder, and restricted rotations.
A bone scan was performed by Dr Kaushik on 9 July 2007. He recorded complaints of cervical spine pain, lower back pain and pain in the scapular region. He recorded the following conclusion:
“There is probable mild left sterno-clavicular joint dysfunction.
The absence of abnormal gleno-humeral uptake does not exclude the diagnosis of adhesive capsulitis. Shoulder ultrasound correlation is suggested.
In view of focal tenderness over the upper thoracic spinous processes, scapular spines and medial scapular margins bilaterally, the imaging features are consistent with the clinical assessment of trapezius and rhomboid enthesopathy. Superimposed interspinous ligamentous strain cannot be excluded.
There are no signs to suggest fracture.”
Dr Max Ellis, a specialist surgeon, was retained on a medicolegal basis by Ms Zhang. He prepared two reports, 10 September 2007 and 23 August 2010. On both occasions, he was assisted by an interpreter. In his first report, Dr Ellis obtained a history with respect to the injury on 2 October 2005. He noted that “she experienced sudden low back pain and pain in the left shoulder”. He noted that, although she had returned to work on light duties, she ceased in April 2007 because of continuing low back pain and left shoulder pain. He noted that two injections into the left shoulder at Concord Hospital resulted in temporary improvement.
Dr Ellis noted that complaints of continuing low back pain persisted, aggravated by bending, lifting, prolonged standing, sitting and walking, and weather change. The pain spread to the back of her left leg, to the foot and the toes. Similar symptoms were experienced in the right leg, with less intensity. He noted numbness and paraesthesia constantly present in the medial aspect of the left foot and leg. Similar, but less severe, complaints were recorded with respect to the right leg.
Dr Ellis further noted:
“Neck pain continues, aggravated by sustained position in flexion and sudden movement, and turning to the right in particular. There are occipital headaches, from which she did not suffer previously. The neck pain spreads to the left shoulder and to the left arm, there is numbness and paraesthesia intermittently in the digits three, four and five on the left hand. The right arm is not affected.”
Dr Ellis recorded the results of his physical examination of the back, neck, upper and lower limbs. He concluded that, as a result of the lifting strain at work on 2 October 2005, Ms Zhang suffered “musculoligamentous contusion, aggravation, degenerative change in her back and neck, and traumatic capsulitis of the left shoulder”. He recommended an MRI of the cervical spine and left shoulder be performed. He assessed a whole person impairment of 35 per cent, including impairments to the cervical spine, lumbosacral spine and left shoulder.

Dr James Evans, an orthopaedic surgeon, assessed Ms Zhang on 18 January 2008 as an independent medical assessor for the employer. Dr Evans recorded a history of injury to the low back while lifting the corner of a king-sized mattress on 2 October 2005. He also noted complaints of pain in the left shoulder which worsened after four days. Dr Evans noted current complaints of pain above the left shoulder and to the front of the chest and to the left side of the neck. He noted other complaints concerning her back and left leg. Dr Evans recorded the details of his physical examination.
He formed the opinion that Ms Zhang had an hysterical or malingering condition. He stated that there was almost a complete lack of cooperation when examined. Due to her lack of cooperation, he declined at that point to assess any permanent impairment and recommended that an MRI of the left shoulder be undertaken.
In a supplementary report on 22 February 2008, Dr Evans reviewed the results of the MRI of the left shoulder. It showed mild tendinopathy and also a small amount of subdeltoid bursal fluid. He concluded that the overall picture was one of mild tendinitis of the left shoulder, consistent with his physical findings. His final report of 27 June 2008 concerned the worker’s allegations of back injury.
Ms Zhang submitted to a further bone scan performed by Dr Kaushik on 4 March 2008. He recorded complaints of pain in the upper back and shoulder, and worsening low back pain. He concluded that there was evidence to suggest medial collateral ligament strain bilaterally of the knees, more marked on the left. He stated, “There is probably post-traumatic degenerative change in the left patellofemoral joint which should be clinically correlated”. He recommended an ultrasound of the knees.
When Dr Sun reviewed Mrs Zhang on 19 March 2008, her complaints related to problems with her knees.
Dr Ven Tan reviewed Ms Zhang on 10 April 2008. He reported complaints of depression, and pain in the low back and knees. He also noted a complaint of neck pain and stiffness.
A CT scan of the cervical spine was performed by Dr Ng on 10 April 2008. The clinical history recorded included complaint of neck pain and stiffness. The following conclusion was reached:
“Bilateral neurocentric joint degeneration at C4/5 and C5/6. Midline disc protrusion at C3/4 and C4/5 both not resulting in significant secondary central canal stenosis. Possible post-traumatic lateral mass hypertrophy and secondary degeneration on the right side at C5/6.”
On 3 June 2008, Dr Sun prepared a comprehensive report to Ms Zhang’s former solicitors. Dr Sun repeated the history of his treatment as outlined above. He concluded that the clinical picture was consistent with left shoulder and thoracolumbar sprain as a result of the lifting, twisting injury at work on 2 October 2005 and a secondary injury in May 2006 sustained in a fall at the railway station, resulting in trauma to both knees and an aggravation of the low back injury. He stated that, “given the chronicity of her condition it is likely that she will continue to suffer from back, left shoulder and bilateral knee symptoms affecting her daily activities”. He assessed her as suffering from a 13 per cent whole person impairment with respect to the back and knee conditions.
Dr Ven Tan prepared a further report to Ms Zhang’s solicitors on 9 October 2008. It substantially duplicates the content of his report to Cambridge Integrated Services on 1 June 2007, but added that when he last saw Ms Zhang on 22 September 2008 she was depressed and suffering pain in her back and left shoulder.
When reviewed by Dr Sun on 31 January 2009, he recorded worsening of the left leg weakness and her reliance on a walking stick. He noted complaints of back pain and ongoing right shoulder and chest wall pain.
On 7 March 2009, Dr Sun noted pain relief while using tramadol. He referred Ms Zhang for an MRI of the cervical spine “to assess progress”.
On 3 April 2009, Dr Robertson performed an MRI of the cervical spine. He noted complaints of worsening neck/left arm pain. He concluded:
“Multilevel degenerative disc change with central disc extrusion at C3/C4 and smaller disc extrusion at C4/C5 which just contacts the central aspect of the cervical spinal cord.
No neural compromise seen at these or any other level.”
In a further report dated 18 April 2009, Dr Sun noted complaints of neck, left shoulder and left lower back and thigh pain. Ms Zhang reported left ankle weakness, disturbed sleep and impaired bowel control. He recorded the findings of the MRI performed on 3 April 2009 but did not comment on the significance of the findings.
On 22 June 2009, Dr Ven Tan reported that Ms Zhang had been his patient since May 2006. Her main complaints had been “the severe and refractory pain related to the injuries sustained at work”, the subject of his previous reports. He noted that she was still battling with depression and pain in the shoulder, low back and knees. With the benefit of the reports of the cervical CT and MRI, he concluded that the neck pain was probably a combination of degenerative changes due to age, referred pain from the shoulder injury, and psychosomatic from her depression and chronic pain syndrome.
Dr Sun prepared a further comprehensive report to Ms Zhang’s current solicitors on 30 June 2009. Dr Sun recorded the history of his treatment as noted above. On this occasion, he expressed the opinion that “the clinical picture is consistent with left shoulder and cervicothoracolumbar sprain as a result of the lifting twisting injury at work on 2 October 2005”. He noted what he described as a well-documented cervical lesion on CT and MRI scans with possible compromise of the cervical cord. He revised the whole person impairment assessment to 17 per cent, including an assessment with respect to the cervical spine.
Dr Ellis prepared a second report on 23 August 2010. On this occasion, he noted a different history to that recorded in his report of 10 September 2007. On this occasion, he noted that Ms Zhang “experienced sudden low back pain, pain in the left shoulder and neck”. He made no further comment concerning the additional history of neck pain occurring at the time of the incident at work on 2 October 2005, in circumstances where there was no such complaint recorded in his initial report three years earlier. Dr Ellis noted the findings reported following the cervical CT scan of 10 April 2008 and the MRI of the cervical spine of 3 April 2009. His diagnosis remained unchanged, that is, soft tissue injury and an aggravation of degenerative changes in the neck and back, and traumatic capsulitis of the left shoulder. He noted that her condition had deteriorated from his previous assessment.
Dr Evans prepared a final report dated 4 February 2011. It followed a re-assessment on 1 February 2011 in the presence of an interpreter and a female friend. Dr Evans noted that Ms Zhang’s current complaints included pain, mainly above the left shoulder and towards the neck. He recorded a sensation of weakness in the left arm and numbness in the hand. She reported constant neck ache. Dr Evans noted the results of the MRI scan of 3 April 2009. After the recording the results of his physical examination, he opined that Ms Zhang was not entirely cooperative when examined. He added that “her signs are variable and some of them distinctly odd”. Dr Evans noted that the finding that pressure on the shoulder gave rise to pain towards the neck was not something that was easily explained. The markedly restricted abduction and flexion in the left shoulder were also not easily explained. He accepted that Ms Zhang did have some pathology, both in the neck and back, and could have some restricted movement. He did not believe she had a significant problem with her left shoulder. As far as the neck and back were concerned, he noted that there were disc lesions at both sites. He accepted that she had had an injury. He noted asymmetrical movement in the neck. He assessed five per cent whole person impairment with respect to the cervical spine.

SUBMISSIONS, DISCUSSION AND FINDINGS

Ms Zhang alleges the Senior Arbitrator made factual and legal errors in her determination of the issues in dispute. In particular, the allegations concern alleged errors in the treatment of the worker’s evidence and the evidence of treating doctors, and the adequacy of the Senior Arbitrator’s reasons.

Did the Arbitrator err in her treatment of the worker’s evidence?

Ms Zhang’s first ground of appeal concerns the Arbitrator’s alleged failure to take into account Ms Zhang’s evidence that the symptoms she experienced in her cervical spine were masked by the effect of, and the treatment of, her shoulder and back injuries. Ms Zhang alleges that her complaints of pain are evidenced by her complaints to her first general practitioner, Dr Au-Yong, confirmed by the doctor’s clinical notes. She claims that thereafter the doctor treated the cervical injury as a symptom of referred pain from the accepted shoulder injury. Ms Zhang submits that the main focus of the treatment over the succeeding period centred on her shoulder and lower back injuries.
Ms Zhang further alleges that it was not until she changed her treating general practitioner from Dr Au-Yong to Dr Ven Tan on 15 May 2006 that investigations were undertaken and treatment commenced with respect to the cervical spine injury. Those investigations, Ms Zhang submits, revealed significant pathology at the cervical spine.
The respondent submits that there is nothing in the statement of the applicant to indicate that symptoms in her cervical spine were masked by the effect of, and treatment of, other injuries. It submits there is no substance to the submission.
At paragraphs [1]–[12] of her Statement of Reasons (Reasons), the Senior Arbitrator carefully summarised Ms Zhang’s evidence with respect to the alleged injury to her neck. She noted at [3] Ms Zhang’s complaint of hearing a clicking sound and a sensation of sharp pain in the middle of the back and neck following the incident on 2 October 2005. The Arbitrator recorded (at [4]) Ms Zhang’s evidence that she developed neck pain and left shoulder pain after about three weeks. The Arbitrator also noted Ms Zhang’s evidence that, following the initial injection in her shoulder by Dr Sher, she then noticed pain in the back of her neck.
At [6], the Arbitrator recorded the worker’s complaints of continuing pain in her neck, back and shoulders following her return to work in December 2005. The Arbitrator noted Ms Zhang’s evidence at [11] that she attributed her alleged incapacity, among other things, to problems with her neck.
The Arbitrator stated at [62]:
“I do note, however that Ms Zhang was referred for a bone scan in respect of her cervical spine pain on 9 July and I do not doubt that she experiences neck pain and this was investigated at that time. However my task is to determine whether she injured her neck in the incident on 2 October 2005 and/or the incident on 9 July 2006 and in my view, the evidence as a whole does not support such a conclusion.”
Having regard to the above, I do not accept that the Arbitrator failed to take into account the applicant’s evidence of complaints of neck pain. It is clear that the Arbitrator accepted that from 2007 Ms Zhang made complaints of neck pain. However, the issue before the Arbitrator was whether any injury to the neck or cervical spine arose out of or in the course of Ms Zhang’s employment on 2 October 2005, and whether her employment was a substantial contributing factor to the injury.
Notwithstanding Ms Zhang’s strong belief and positive assertion that she injured her neck (Reasons [55]), the Arbitrator gave a number of compelling reasons in support of her conclusion that Ms Zhang did not injure her neck in the incident on 2 October 2005:
(a)Ms Zhang made no complaint initially to Dr Au-Yong of any symptoms in her neck. Her first and only complaint to her was on 28 October 2005. The complaint was not investigated and no further complaints were made to Dr Au-Yong, notwithstanding her continuing and regular treatment of Ms Zhang.
(b)Ms Zhang did not make any complaints to Dr Sher of symptoms referable to her neck and indeed did not provide him with any history of injury to the neck.
(c)Ms Zhang was referred to Dr Sun, who was a specialist in rehabilitation medicine and pain medicine. He first saw her on 2 February 2006. Dr Sun saw her on nine occasions throughout 2006, and on at least three occasions in 2007. However, it was not until April 2009 that Ms Zhang first complained of neck pain to Dr Sun.
(d)When examined by Dr Barbara Schiff, an injury management consultant, in February 2006, a detailed history was obtained from Ms Zhang with the benefit of an interpreter. Ms Zhang made no mention of any injury to her neck or any associated neck symptoms.
These observations were open to the Senior Arbitrator and provided a sound basis for her conclusion.
At the arbitration hearing, it was submitted by Ms Zhang’s counsel that her initial complaints of neck pain were overlooked. Although she continued to suffer neck pain thereafter it was not investigated or treated until two years later because the attention had been focused of her other injuries, namely her back and shoulder. Counsel submitted that Dr Sun focused on the back and Dr Sher focused on her shoulder (T34.51).
The Senior Arbitrator considered but rejected that submission at [58] of the Reasons. Accepting that medical specialists can approach a problem myopically and focus on their own area of speciality, the senior Arbitrator stated that Dr Sher’s failure to investigate or treat the neck was not due to a myopic approach, but was due to an absence of complaints of pain in the neck. Similarly, the Senior Arbitrator noted there was no complaint of neck pain to Dr Sun until 2009. These conclusions were open to the Senior Arbitrator and disclose no error.
Ms Zhang submits on appeal that the injury to her neck was masked by the severity of symptoms associated with her back and shoulder. She claims that, following an injection of local anaesthetic and corticosteroid into the shoulder in January 2006, the symptoms in her back and shoulder improved, and it was then that the problems with her neck became evident. That submission was not made at the arbitration hearing.
The question of whether parties should be permitted to raise issues on appeal that were not raised during the initial proceedings was recently considered by the Court of Appeal in Harmer v Hare [2011] NSWCA 229 at [150]. Whealy JA (Beazley JA and Sackville AJA agreeing) noted the general proposition is that a party is bound by the conduct of his or her case at trial (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71). His Honour acknowledged, however, that a point may be raised for the first time on appeal. This may occur where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 6–7) or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 498).
In this instance, I doubt that had the point been raised at the arbitration it would have been met by any additional evidence and, for that reason, I do not consider any prejudice arises in permitting the argument to proceed on appeal. In addition, I consider that, in the circumstances of this case and given the nature of the dispute, it in the interests of justice that all of the worker’s submissions be considered and determined without further delay.
However, this submission cannot disclose any error by the Senior Arbitrator. The obligation for the Senior Arbitrator to consider the issue has to be considered in the light of the issues raised by the parties. If a matter is not raised, it is not an error of law not to refer to it (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30]).
Even if the Senior Arbitrator erred in failing to consider the masking argument, that error would not affect the outcome of the appeal. The masking argument is without merit for the following reasons. First, there is no evidence of neck symptoms being masked by other injuries. There is nothing in the worker’s evidence to this effect and it is inconsistent with the medical evidence. After receiving the successful treatment in January 2006 (an injection), Ms Zhang was examined by Dr Clive Sun in February 2006, who took a comprehensive history, but was not told of any problems associated with the neck. Dr Sun continued to treat Ms Zhang and saw her again in March and April 2006. The reports prepared by Dr Sun following those examinations made no reference to complaints of pain in the neck.
In May 2006, Dr Ven Tan took over treatment as her general practitioner. He also took a detailed history, but recorded no complaints associated with the neck. By June of 2006, Dr Sun recorded that Ms Zhang’s symptoms in her shoulder and back had improved to the point where she felt confident of increasing her working hours, and had stepped up an exercise regime, including jogging on a treadmill at home. It was throughout this period that, if Ms Zhang’s evidence is to be accepted, one would have expected, if she was genuinely suffering from problems associated with her neck, they would have come into focus, as it is clear that the problems associated with the shoulder and the back abated significantly from January 2006. However, it was not until July 2007 that the first mention of any cervical spine pain is made to Dr Kaushik, who made a brief reference to it in the report of a bone scan performed on that date. As can be seen from the history, Ms Zhang did not make any complaint of neck pain to anyone for 18 months after she received the treatment which she claimed resulted in the neck pain becoming evident. The argument that her neck symptoms had been masked by her other symptoms is therefore without any merit.

Did the Arbitrator have regard to the whole of the evidence of Ms Zhang’s treating general practitioner?

Ms Zhang’s second ground of appeal alleges the Arbitrator failed to have regard to the whole of the opinion of her treating general practitioner.
Ms Zhang submits that the Arbitrator adopted only part of the opinion of Dr Ven Tan. Ms Zhang submits that it is clear from the doctor’s opinion that he supported the worker’s claim of injury to the neck arising out of or in the course of her employment on 2 October 2005.
The respondent submits that it is apparent from the Senior Arbitrators reasons that she considered the clinical notes of the general practitioner in their entirety.
The respondent further submits that the clinical records of the general practitioner do not support an inference that the general practitioner supported Ms Zhang’s claim of neck pain related to the injuries alleged.
In his final report on 22 June 2009, Dr Ven Tan summed up his opinion by concluding that Ms Zhang’s neck pain was probably a combination of degenerative changes due to age, referred pain from the shoulder injury, and psychosomatic from her depression and chronic pain syndrome.
Dr Ven Tan’s medical certificates between May 2006 and February 2009 diagnosed “lumbosacral disc lesion and adhesive capsulitis of the L shoulder”. The medical certificates he issued between 18 April 2009 and 24 July 2009 added the diagnosis of “cervical disc lesion”.
The Senior Arbitrator did not accept Dr Ven Tan’s diagnosis of cervical disc lesion related to the incident at work on 2 October 2005 or that Ms Zhang suffered any neck injury at that time.
As the Senior Arbitrator noted at [60] of the Reasons, Dr Tan’s diagnosis of cervical disc lesion is at odds with his opinion, expressed with the benefit of the findings of the cervical CT and MRI, that the neck pain was probably due to a combination of degenerative changes due to age, referred pain from the shoulder injury, and psychosomatic from her depression and chronic pain syndrome.

Although “cervical disc lesion” was added to the previous diagnosis of “lumbosacral disc lesion and adhesive capsulitis of the L shoulder” in Dr Ven Tan’s medical certificates from 18 April 2009, as noted by the Senior Arbitrator at [59], its genesis is unexplained. There is no reference in any of his reports to Ms Zhang having suffered from a cervical disc lesion, and nor is there any attempt to explain how such a diagnosis might be causally related to the effects of the incident in October 2005, particularly in view of the absence of any consistent complaints of neck pain until 18 April 2009.
The Arbitrator’s rejection of Dr Ven Tan’s conclusion concerning the alleged injury to the neck and the causal relationship between neck pain experienced by Ms Zhang and the incident at work in October 2005 was open to her on the evidence presented and do not disclose any error.
For these reasons, I reject Ms Zhang’s submission that the Senior Arbitrator failed to have regard to the whole of Dr Ven Tan’s evidence.

Adequacy of reasons/assessment of medical evidence

Ms Zhang alleges that the Arbitrator failed to give adequate reasons for rejecting her evidence of injury to the cervical spine.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. It is not disputed that Arbitrators have a statutory and common law obligation to provide adequate reasons for their decisions (s 294(2) of the 1998 Act; Pt 15 r 6 of the Workers Compensation Commission Rules 2011 (the Rules); Absolon v NSW TAFE [1999] NSWCA 311 (Absolon)).
Relevantly, Pt 15 r 6 of the Rules provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead [sic] the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground, the appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (Yates); Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis), McHugh JA (as his Honour then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter(1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: …”
Ms Zhang alleges that the Arbitrator overlooked her evidence that the complaints of cervical pain only came into focus in 2007 following a period of successful treatment for the shoulder complaints.
Ms Zhang submits that, contrary to the Arbitrator’s finding that Dr Barbara Schiff failed to elicit any history of neck pain, the reference in Dr Schiff’s report to the words “examination of head and neck” (Reply page 88) demonstrates that Ms Zhang did complain of neck pain when examined by Dr Schiff.
The Senior Arbitrator recorded at [24] of the Reasons that Dr Schiff’s examination of the head and neck was unremarkable. The Senior Arbitrator’s point concerning Dr Schiff’s evidence was not that there were no complaints of pain at the time of examination, but rather that the doctor did not record any history of injury to the neck (Reasons at [61]).
The extract referred to by Ms Zhang is part of a comprehensive physical examination undertaken by Dr Schiff. There is nothing in the doctor’s report to suggest that the examination of the head and neck was prompted by complaints of neck pain. On the contrary, the detailed history obtained by Dr Schiff makes no reference to any neck pain. At page 85 of the Reply, the doctor lists a series of current problems elicited from Ms Zhang, none of which refer to neck pain.
Ms Zhang submits that her complaints of neck pain are corroborated by the comment in the report of Dr Kaushik, who conducted a bone scan on 9 July 2007. The Arbitrator made no explicit reference to this evidence in her analysis of evidence. However, for the reasons stated in Soulemezis and Yates, it is not necessary for the Arbitrator to refer to every piece of evidence. It is sufficient that the essential ground or grounds upon which the decision rests should be articulated and expressed.
The Senior Arbitrator’s decision rested on Ms Zhang’s failure to report a history of injury to the neck at the time of the incident in October 2005 and for a considerable time thereafter. Her complaint of neck symptoms to Dr Kaushik in July 2007 is not in issue. If the Senior Arbitrator’s failure to expressly refer to Dr Kaushik’s evidence was an error, which I do not accept, it would not affect the outcome of the appeal because Dr Kaushik concluded there was evidence of mild sternoclavicular joint dysfunction. The radiologist’s conclusions were not consistent with injury to the neck.
Ms Zhang alleges that the Arbitrator was in error in her treatment of Dr Ellis’s evidence. Ms Zhang refers in her submissions to the notations in Dr Ellis’s report of 10 September 2007 concerning her continuing neck pain. Ms Zhang submits that the recording by Dr Ellis of neck pain is consistent with her complaints of neck pain in September 2007.
The respondent submits that the Senior Arbitrator provided cogent reasons for rejecting the evidence of Dr Ellis which stood alone on the issue of injury to the neck.
The Arbitrator accepted that Dr Ellis had recorded complaints from Ms Zhang concerning her neck. These are detailed at [53] and [54] of the Reasons. The Arbitrator gave little weight to Dr Ellis’s opinion, regarding it as unreliable. That was not due to an absence of complaints in relation to the neck, but due to an absence of any recorded history of injury to the neck. The history of injury recorded by Dr Ellis in respect of the injury on 2 October 2005 referred only to back and left shoulder pain. The Arbitrator noted that Dr Ellis made no attempt to provide any reasons or analysis to support his conclusion that Ms Zhang suffered a soft tissue injury to the neck in the incident in which Ms Zhang was involved at work on 2 October 2005. His opinion was based partly on the acceptance of a history of continuing neck pain, which the Arbitrator did not accept.
Although the Commission is not bound by the rules of evidence, the Commission must 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, although that does not require strict compliance with each and every feature referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 to be set out in each and every report (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at 82). The Senior Arbitrator carefully weighed Dr Ellis’s evidence and concluded that, in so far as it related to the neck, it amounted to a “bare ipse dixit” and, for that reason, gave it little weight. The Senior Arbitrator’s approach and conclusions demonstrate no error.
The medical evidence does not support Ms Zhang’s allegations of continuing neck pain following the injury on 2 October 2005. With the exception of one isolated entry in Dr Au-Yong’s notes in 2005, which was not further treated or investigated, there is no mention of neck pain in the extensive history of treatment until July 2007, when it is mentioned to a radiologist undertaking a bone scan. Indeed, there is no further mention of neck pain to a treating doctor until it was reported to Dr Ven Tan on 10 April 2008, two-and-a-half years after the incident alleged to have given rise to the injury.
Ms Zhang relies on Dr Evans’s evidence as corroboration of her complaints of neck pain. Dr Evans recorded complaints of left-sided neck pain in January 2008. The Arbitrator recorded that history at [23] of the Reasons.
Dr Evans concluded that, in so far as the neck is concerned, there was radiological evidence of disc lesions in the cervical spine. He baldly asserted that Ms Zhang suffered injury. He did not state that the injury occurred in the incident at work on 2 October 2005, although it may be inferred from his inclusion of a whole person assessment for the neck that it was his view that there was a causal relationship between his ultimate conclusion and the incident on 2 October 2005.
However, Dr Evans did not attempt to explain the causal relationship between the lesions in the cervical spine, first discovered by Dr Ng when he performed a cervical CT scan in April 2008, and the reported injury in October 2005. Dr Evans’s conclusion is inconsistent with the history that he initially obtained, namely, that as a result of the incident on 2 October 2005, Ms Zhang suffered injuries to her lower back and shoulder (referred to at [50]).
Ms Zhang was not entirely cooperative with Dr Evans when he examined her on 1 February 2011. He found her responses to examination of the neck, shoulder, back and left ankle were not easy to explain. He did not accept her complaints concerning the shoulder at all. He only accepted that there had been injury to the neck because there was pathology there, but he failed to explain why that pathology should be accepted as traumatically induced rather than a result of degenerative change. Even if it is accepted that the lesions in the cervical spine were the result of some trauma, Dr Evans did not address why it should be accepted that the relevant trauma was the incident on 2 October 2005, particularly in the absence of complaints consistent with multiple disc lesions for a number of years after the incident.
I am not persuaded that, although his reports contain references to neck pain, Dr Evans has adequately explained how he arrived at his conclusion with respect to the neck, having regard to the absence of a history of injury to the neck and the absence of any significant complaints in relation to the neck as I have previously discussed. If the Senior Arbitrator erred in failing to expressly deal with Dr Evans’s conclusions, for the reasons given stated above, that error makes no difference to the result of the appeal.
Ms Zhang relies on the comments by Dr Ng, radiologist, who performed the CT scan on 10 April 2008, concerning complaints of neck pain. Although it is not clearly stated in her submissions, I infer from them that she relies on this as evidence of complaints of neck pain relating to the incident on 10 October 2005. The comments recorded by Dr Ng occurred three years after the event. Dr Ng concluded that the CT scan showed evidence of degeneration in the cervical spine and possible post-traumatic pathology. Ms Zhang’s complaints of neck pain in 2008 are not challenged.
Ms Zhang submits that, although she suffered from pain in her neck after the incident on 2 October 2005, she did not complain about it to Dr Au-Yong because Dr Au-Yong diagnosed an injury to the left shoulder and therefore Ms Zhang did not persist with complaints of neck pain. The Senior Arbitrator was not satisfied on that issue. I see no error in her approach or conclusion.
Ms Zhang submits that, given the absence of any history of neck pain in the clinical notes of Dr Au-Yong between September 2003 and May 2004, that is, no prior history of neck pain, the Commission should therefore accept that the injury to the neck was due to the effects of the incident on 2 October 2005. The submission is untenable. Although there may have been an absence of any symptoms prior to the injury on 2 October 2005, Ms Zhang bears the onus of proving, on the balance of probabilities, that the complaints she now makes with respect to the neck are due to the accident of 2 October 2005. For the reasons already given, the evidence fails to establish that fact.
Ms Zhang submits that the Arbitrator erroneously stated that there had been no complaint of neck pain to any doctors until 2009 and that was the main reason for the Senior Arbitrator rejecting her claim in respect of the neck. That submission is simply incorrect. The Senior Arbitrator carefully recorded all of Ms Zhang’s complaints, noting the first entry in Dr Au-Yong’s clinical notes in late 2005. The Senior Arbitrator also carefully noted Ms Zhang’s complaints of neck pain to Dr Ven Tan in April 2008 (Reasons at [59]).
For the foregoing reasons, I reject the submission that the Senior Arbitrator failed to give adequate reasons for her decision. The Senior Arbitrator carefully recorded and analysed the worker’s evidence and the medical evidence submitted. Her findings with respect to the alleged neck injury are clearly set out at [55]–[64] of the Statement of Reasons. The Reasons are expressed in sufficient detail to comply with the Senior Arbitrator’s statutory obligation and comply with the requirements of r 15.6 of the Commission’s rules. They clearly demonstrate the essential grounds upon which the decision rests and do not disclose any error.

Costs issues

The fourth ground of appeal alleges an error by the Senior Arbitrator in omitting to make an order for costs. While there was initially an omission with respect to the costs order, that has now been rectified in the amended Certificate of Determination issued by the Commission on 13 July 2011. Consequently, this ground of appeal fails.

CONCLUSION

The Arbitrator’s reasons and conclusions disclose no error of fact, law or discretion. The Arbitrator was correct to find that Ms Zhang did not sustain an injury to her neck/cervical spine in either the incident on 2 October 2005 or 9 May 2006, and that she did not sustain an injury to her neck arising out of or in the course of her employment with the respondent.

DECISION

The Arbitrator’s decisions made in the Certificates of Determination of 15 April 2011 and 13 July 2011 are confirmed.

COSTS

Each party is to pay her or its own costs of the appeal.

Judge Keating

President
25 August 2011

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

ASSOCIATE

[2011] NSWWCCPD 47

15 April 2011