Absolute Aquarium Products Pty Ltd v Taylor
[2024] NSWPICPD 61
•25 September 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Absolute Aquarium Products Pty Ltd v Taylor [2024] NSWPICPD 61 |
APPELLANT: | Absolute Aquarium Products Pty Ltd |
RESPONDENT: | Lisa Marie Taylor |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W4526/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 25 September 2024 |
ORDERS MADE ON APPEAL: | 1. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to bring the appeal. 2. The Certificate of Determination dated 20 September 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act; caution in dealing with treating doctors’ notes – Mason v Demasi [2009] NSWCA 227; rule 73 of the Personal Injury Commission Rules 2021 – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351; weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308; drawing inferences – Fuller-Lyons v New South Wales [2015] HCA 31, Flounders v Millar [2007] NSWCA 238; appealable error –Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; [1985] HCA 58; 62 ALR 85, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; appeals – Kowalski v Repatriation Commission [2011] FCAFC 43, Ready Workforce (a Division of Chandler McLeod Pty Ltd) v Andronicos [2024] NSWPICPD 7; the duty to give reasons – Secretary, Department of Education v Dawking [2024] NSWCA 4, Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, Roncevich v Repatriation Commission [2005] HCA 40, 222 CLR 115 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr F Doak, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Turner Freeman Lawyers | |
| DECISION UNDER APPEAL | |
MEMBER: | Mr M McGrowdie |
DATE OF MEMBER’S DECISION: | 20 September 2023 |
INTRODUCTION AND BACKGROUND
Lisa Marie Taylor (the worker/respondent) was employed by Absolute Aquarium Products Pty Ltd (the employer/appellant) in a clerical position from 24 October 2012. She worked five days per week, Monday to Friday. She was injured on 6 March 2013. She was working in the appellant’s warehouse premises when she states she was struck by a door, which had been removed from its hinges and was leaning against a wall. She states the door fell from its position and struck her in the head. There is an issue regarding whether she lost consciousness at the time. In her statement in these proceedings she says she “was unconscious for a couple of minutes”. She states that she completed her shift.[1] The employer’s manager states that the worker was on a six-month trial at the time of the incident and was not entitled to sick leave or annual leave. The manager states that the worker telephoned on 12 March 2013 to say she was ready to return to work on the following day. The manager said there was no more work for her. At the worker’s request the manager obtained an incident report form from the employer’s insurer, which the worker filled out on 15 March 2013.[2]
[1] Report of M & A Investigations, Reply to Application to Resolve a Dispute (Reply), pp 2–3; worker’s statement 2/9/21, [9]–[11], Application to Resolve a Dispute (ARD) pp 1–2.
[2] Song Huy Ea statement, 11/4/17, [17], [39]–[48], Reply, p 14.
The worker suffered injuries to her cervical spine and left shoulder in the incident, these are not controversial. She additionally developed symptoms of epilepsy. The worker’s solicitors made a claim for lump sum compensation, in respect of 34 per cent whole person impairment, in correspondence dated 18 June 2021.[3] The employer’s insurer accepted liability in respect of the injuries to the cervical spine and left shoulder. It disputed that the “epilepsy condition is causally related to the injury of 6 March 2013”. It also put in issue a consequential condition of the left hand, which had resulted from the epilepsy. The employer argued that the accepted injuries did not result in permanent impairment of more than 10 per cent, so the claim for lump sum compensation was disputed.[4]
[3] ARD, pp 17–18.
[4] ARD, pp 19–23.
The current proceedings, in respect of the claim for lump sum compensation, were listed before a Member. They sought lump sum compensation in respect of the cervical spine and the nervous system (development of epilepsy). The Member made orders for the lodgment of written submissions. The worker relied on submissions dated 8 August 2023, the employer’s submissions were dated 22 August 2023. The worker also relied on submissions in reply and supplementary submissions in reply, both dated 29 August 2023 (the second dealt with a supplementary report of Dr O’Neill that was inadvertently not dealt with in the first). The Member delivered ex tempore reasons on 20 September 2023. The Certificate of Determination contained the following orders:
“In this matter the parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute following a conciliation conference-arbitration hearing and the receipt of written submissions, the reasons for the determination set out below were given orally on 20 September 2023.
The determination of the Commission in this matter is as follows:
(1) Find injury on 6 March 2013 to the [respondent’s] cervical spine and nervous system (resulting in epilepsy) and make an Award for the [respondent] accordingly.
(2) The matter is remitted to the President to refer the matter to a Medical Assessor(s) to assess any Whole Person Impairment of the [respondent’s] Cervical Spine and Nervous system (epilepsy) as a result of injury on 6 March 2013.
(3) The documents to be furnished to the Medical Assessor(s) are:
(a) The Application for Determination
(b) The Reply
(c) All Late Documents
(d) The Medical Opinion of MA Dr Spittler
(e) A copy of this COD
A sound recording of the reasons given is available to the parties on request.”
THE MEMBER’S REASONS
The Member said the worker had been struck on the head by a “hollow core door” which dislodged. He said the worker stated she was “rendered unconscious for a short period of time, however, there is some dispute about this”. The worker “does not recall the door falling on her”. The Member referred to the worker waking on the following day with severe headache and pain, she saw her general practitioner, Dr Chernyak, a CT scan of the brain was normal. He referred to Dr Chernyak’s clinical note which recorded “there was no loss of consciousness”.[5]
[5] Transcript of Member’s Oral Reasons 20/9/23 (reasons), [2]–[4].
The Member noted the worker had “consistently given a history to specialists of being knocked unconscious”. He referred to Dr Mellick’s report dated 1 June 2021, which recorded that the worker had “no recollection of events until gaining continuity of recall”. The Member said:
“I would regard this as an accurate account of events, and it does suggest that the [worker] experienced some loss of consciousness following the blow. It was a sudden and forceful blow to the [worker’s] head which also caused jarring of the neck.”[6]
[6] Reasons, [6].
The Member said that on 8 June 2014 (misdescribed as 10 June 2014) the worker “experienced what appeared to have been an epileptic seizure at home”. She was taken by ambulance to Westmead Hospital where “her parents reported that [she] had been having partial seizures/events for about a year”. The Member said there was reference to these events in many of the medical reports, which “generally would date these as first occurring in about mid-2013”. The Member referred to a history in “the discharge summary from Westmead Hospital … of an abusive relationship …, and that seizures had started around a year ago post her boyfriend ramming her head into a Colourbond fence and punching her in the face and knocking her out”. The Member said this incident “appears to have happened in 2011 and was accompanied by the [respondent] having a CT scan of the brain at that time”. The Member observed this did “not sit comfortably” with the worker first having events from about June 2014, 13 months after the work incident.[7]
[7] Reasons, [7]–[8].
The Member said there was also an incident in April 2012 where the worker fell in her bathroom, “hit her head and blacked out for a short time”. There was “also a history of some sort of head injury when she was a child”. The worker’s “brother developed epilepsy following a severe head injury in a motor vehicle accident”. A cousin had epilepsy. The Member said he referred to these matters to provide background in assessing the causation question – was it “more likely than not that the injury at work on 6 March 2013 did result in the [worker] developing focal epilepsy”. The Member said there was no question that the worker suffered from, and was being treated for, this condition.[8] The Member described the issue before him:
“The central issue in the matter is whether the injury suffered by the [worker] on 6 March 2013 did result in the [worker] developing focal epilepsy. It is accepted that the [worker] suffered injury to the cervical spine.”[9]
[8] Reasons, [9].
[9] Reasons, [10].
The Member discussed the medical evidence. He referred to the worker, following her admission to Westmead Hospital, coming under the care of Dr Wong, a specialist in epilepsy. On 10 June 2014, two days after her discharge from Westmead Hospital, the worker saw her general practitioner, Dr Nguyen, who recorded a history of occasional seizures for the last 15 months. The Member observed this put the advent of seizures “even closer to the incident at work”. The Member referred to a history recorded by Dr Wong in September 2018, which referred to the assault by the boyfriend in 2011 and the work incident on 6 March 2013. That history described the worker, in the work incident, being “blacked out for about a minute and [she] had to be carried to the office”. The Member referred to a video EEG carried out at Westmead Hospital on 8 to 12 April 2019. This confirmed the seizures “appeared to be coming from the left temporal region…[which] would suggest some brain injury”.[10]
[10] Reasons, [12]–[14].
The Member referred to the reports from Dr Borire, neurologist, who treated the worker. That doctor’s history was of the first seizure being three months after the work injury. He recorded “numerous seizures and also regular nonconvulsive events”. His reports did not mention domestic violence or a fall in the bathroom. In his report dated 10 October 2022 Dr Borire “considered it plausible that the work incident caused the [worker’s] epilepsy”. The Member referred to reports from Dr Mellick, a neurologist who saw the worker at the request of her solicitors. Dr Mellick did not record any family history of epilepsy, nor a history of domestic violence or a fall in the bathroom. Dr Mellick recorded there was no history of epilepsy before the work incident. Dr Mellick considered there had been a “significant head injury” and considered the epilepsy was “causally related to the traumatic events at work”. In a supplementary report dated 5 October 2022, Dr Mellick referred to the abnormality in the temporal lobe detailed in the EEG monitoring at Westmead Hospital in April 2019. It was said this confirmed his clinical assessment that the head injury in the work incident in March 2013 “was a substantial contributing factor to the development of [the worker’s] epilepsy”.[11]
[11] Reasons, [16]–[18].
The Member reasoned that, “[i]n any event, the blow suffered by the [worker] to her head was a significant one”. There was “no history of seizures or stereotypical nonconvulsive events until the incident at work with the nonconvulsive events preceding her admission to Westmead Hospital in June 2014 for about a year to 15 months”. The Member noted that Dr Thambugala, when he saw the worker on 19 March 2013, recorded that the door had struck the left side of the worker’s head, which correlated with the EEG findings in 2019.[12]
[12] Reasons, [19]–[20].
The Member referred to the opinion from Dr Spittaler, neurosurgeon and medical assessor, who furnished a medical assessment certificate dated 21 April 2023, following an examination on 7 February 2023. The Member said the doctor considered there was a significant head strike, which had a chronological proximity to the development of complex partial seizures in the nature of epilepsy. He considered there was objective evidence on EEG of a seizure disorder. The Member referred to Dr Spittaler’s discussion of Dr O’Neill’s report dated 8 November 2022. That report of Dr O’Neill referred to a discharge summary from Westmead Hospital on 8 June 2014, in which it was stated the seizures started a year prior due to a domestic violence incident. Dr Spittaler said he could find no evidence in the documentation to support that statement. Dr Spittaler said the earliest reference he could find to seizures was in the reports of Dr Nguyen, who on 10 June 2014 said that the seizures had occurred for 15 months. The Member said this placed the onset of symptoms of brain irregularities very close to the work injury, and “relatively distant to the domestic violence in late 2011”.[13]
[13] Reasons, [21]–[24].
The Member referred to the employer’s medical case. He said that Dr O’Neill, in the last of his reports, said the worker suffered from epilepsy and the seizures arose from the left temporal lobe. Dr O’Neill regarded the work injury as “minor and not causative in terms of the epilepsy”. The Member said Dr O’Neill regarded the other head injuries as more significant and referred to domestic violence. The doctor concluded that none of the head injuries were of great severity. Dr O’Neill “suspected that the epilepsy was idiopathic and that the question of causation should be addressed to Dr Wong”.[14]
[14] Reasons, [25]–[26].
The Member said he was “satisfied that the [worker] suffered significant head injury on 6 March 2013 and a jarring of the neck”. It was within “a relatively short period … a number of months that the [worker] began to experience the episodes described in the medical reports. The [worker] then experienced a major seizure in June 2014 … She has suffered repeated seizures since that time.” The Member said he was persuaded by the medical evidence on which the worker relied. The other incidents relied on by the employer “well preceded the incident at work”. The Member said there was “no medical opinion that the fall in the bathroom or the domestic violence incident in 2011 [were] causally related”. He said there was no medical evidence it was “likely that the epilepsy is idiopathic or hereditary”.[15]
[15] Reasons, [27]–[28].
The Member said that, notwithstanding the employer’s Jones v Dunkel[16] argument, Dr Dowda’s evidence would not have assisted the worker’s case, the evidence on which the worker relied was supportive. It was persuasive of a causal connection between the work injury and the development of epilepsy. The Member referred to Malec v JC Hutton Pty Ltd[17] and proof on the balance of probabilities. He noted these principles were applied by Keating P in Department of Education & Training v Ireland.[18] He accepted that the work incident led to the development of epilepsy. He noted the injury to the cervical spine was not disputed.[19]
[16] [1959] HCA 8; 101 CLR 298.
[17] [1990] HCA 20; 169 CLR 638 (Malec).
[18] [2008] NSWWCCPD 134.
[19] Reasons, [29]–[33].
The Member made a finding that on 6 March 2013 the worker “suffered injury to the cervical spine and to the head which has led to the development of epilepsy”. The Member remitted the matter to the President for referral to a Medical Assessor(s) to assess any whole person impairment (nervous system [epilepsy]) and the cervical spine as a result of injury on 6 March 2013.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The appellant submits the appeal is not interlocutory.[20] The respondent does not submit to the contrary.[21]
[20] Appellant’s submissions, [6].
[21] Respondent’s submissions, [1].
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
In Licul v Corney Gibbs J said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[22] (footnotes omitted)
[22] [1976] HCA 6; 180 CLR 213, 225.
The above passage has been frequently applied in the Commission (and its predecessor, the Workers Compensation Commission of NSW) in dealing with s 352(3A). The Member’s decision did not finally dispose of the rights of the parties.[23] There was no final decision at first instance determining the worker’s entitlements. The decision under appeal is interlocutory. In Campbelltown Tennis Club Ltd v Lee Keating P dealt with a grant of leave where the orders under appeal involved referral of a matter to an Approved Medical Specialist for assessment. His Honour said:
“Contrary to Ms Lee’s submissions, the issues for determination on appeal involve a great deal more than a simple medical dispute. I accept that if leave is refused, the matter would then proceed to an AMS to determine the extent of any whole person impairment suffered by Ms Lee. At that point, final orders would be entered and the Club would be entitled to lodge a further appeal. I am satisfied that it is desirable for the proper and effective determination of the dispute that the issues for determination be resolved now because, as the Club submits, if the issues are resolved in its favour it will avoid an unnecessary referral to an Approved Medical Specialist, thus avoiding further costs and delay. I grant leave to appeal.”[24]
[23] See P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12.
[24] [2013] NSWWCCPD 50, [22].
The above approach is appropriate in the circumstances of the current matter. I am satisfied that determining the appeal is desirable for the proper and effective determination of the dispute. Leave is granted pursuant to s 352(3A) of the 1998 Act to bring the appeal.
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:[25]
(a) The Member erroneously found that the [respondent] suffered a loss of consciousness in the incident on 6 March 2013 (Ground No. 1);
(b) The Member failed to give any or any proper weight to the history of an assault involving loss of consciousness in mid-2013 (Ground No. 2);
(c) The Member erred in finding that the only possible instance of domestic violence relevant to the issue of causation occurred in 2011 (Ground No. 3);
(d) The Member failed to give any or any proper weight to the history of a fall in a bathroom involving loss of consciousness in April 2012 (Ground No. 4);
(e) The Member erred by asking himself the wrong question (Ground No 5);
(f) The Member erred by giving undue and excessive weight to the medical opinion relied on by the [respondent] (Ground No. 6);
(g) The Member erred in placing weight on the opinion of Dr Spittaler, Medical Assessor (Ground No. 7), and
(h) The Member erred in failing to provide any reasons for rejecting the opinion of Dr O’Neill. (Ground No. 8)
[25] Appellant’s submissions, [21].
I note that the ground numbered [7] above was inadvertently omitted from the grounds set out at [21] of the appellant’s submissions, but appears in the body of the appellant’s submissions at [52] to [54].
GROUND NO. 1 – THE FINDING OF LOSS OF CONSCIOUSNESS ON 6 MARCH 2013
Appellant’s submissions
The appellant states Dr Chernyak (the respondent’s general practitioner at the time) on 7 March 2013 recorded a history that there was no loss of consciousness in the work incident. The appellant refers to the Member’s discussion of the history recorded in Dr Mellick’s report (see [4] to [5] above). The appellant submits that, without saying so, the Member made a finding that the respondent lost consciousness in the work incident due to a blow to the head. The appellant describes this finding as “crucial”, as a number of the specialist medical practitioners based their opinions on an assumed history of a loss of consciousness after a blow to the head. The appellant submits the Member gave no reasons for accepting the later statement and medical histories over the contemporaneous account recorded by Dr Chernyak. It submits this preference for the later history taken by Dr Mellick constituted an error law.[26]
[26] Appellant’s submissions, [22]–[25].
The appellant submits Dr Mellick’s recorded history did not constitute positive evidence of a loss of consciousness. The recorded history was one of “no recollection of the event until gaining continuity of recall”. There could be other explanations of the lack of recollection of events, such as shock. The appellant submits the finding of a loss of consciousness caused by a blow to the head, was not supported by the evidence and was an error of law. The appellant submits the Member has substituted his own conclusion, about the connection between the blow and the likelihood of it producing a loss of consciousness, rather than relying on medical evidence. Alternatively, he has drawn an inference in the absence of a proper foundation. It submits either approach involves an error of law.[27]
[27] Appellant’s submissions, [26]–[27].
Respondent’s submissions
The respondent refers to the passage of the reasons setting out the Member’s ‘Conclusion’. His reasoning was based on a finding that the respondent “suffered [a] significant head injury on 6 March 2013 and a jarring of the neck”. The conclusion that the head injury was “significant” was open, the blow to the head was of sufficient force to cause injury to, and impairment of, the neck. The respondent submits this ground purports to raise a dispute that had no bearing on the Member’s finding on causation. It is misconceived.[28]
GROUND NO. 2 – THE HISTORY OF ASSAULT/LOSS OF CONSCIOUSNESS IN MID-2013
[28] Respondent’s submissions, [3]–[6].
Appellant’s submissions
The appellant refers to the following from the reasons at [8]:
“… seizures had started around a year ago post her boyfriend ramming her head into a Colourbond fence and punching her in the face and knocking her out. This incident appears to have happened in 2011 and was accompanied by the [respondent] having a CT scan of the brain at that time.”
The appellant submits the Member did not identify the basis on which he found the above incident occurred in 2011. It submits the “chronological sequence” in the Westmead Hospital discharge summary was that the respondent’s seizures started a year ago (mid-2013) following the head trauma through a Colourbond fence. On that basis the head trauma occurred in mid-2013, rather than 2011 as the Member found. The appellant submits there is a clear inference the history in the discharge summary came from the respondent. The respondent did not challenge its accuracy. The appellant submits this history should have been given “significant weight”. It submits the Member instead relied on histories taken by “various doctors (often a number of years later)” to attribute causation to the work incident because of its “close proximity to the onset of the seizures”.[29]
[29] Respondent’s submissions, [28]–[30].
The appellant notes the discharge summary described the history as having been obtained from the respondent. The appellant submits the Member should have inferred it was a truthful and accurate account (reference is made to Bradshaw v McEwans Pty Ltd[30] and Qantas Airways Ltd v Coleman[31]). The appellant submits it was error to fail to give proper weight to the evidence of the onset of seizures in 2013 being related to the assault by her former boyfriend. It submits it was error to not provide “proper reasons” for preferring the histories recorded in later reports.[32]
[30] (1951) 217 ALR 1.
[31] [2020] NSWWCCPD 42.
[32] Respondent’s submissions, [31]–[32].
Respondent’s submissions
The respondent describes the argument based on the assault by the ex-boyfriend as a “red herring”. The respondent submits that, whenever the assault occurred, there is no evidence it was causative of epilepsy. The respondent submits the argument is speculative and is without medico-legal support. The respondent quotes from Dr O’Neill’s opinion in his report dated 14 September 2022 (misdescribed as ‘22 September 2022’), part of the appellant’s case. Dr O’Neill said “I suspect the epilepsy is idiopathic and unrelated to any of her head injuries”. The respondent submits it is difficult to conceive what weight should be given to the theory of “an alternative traumatic cause for the [respondent’s] epilepsy, without any medical support for such theory”. This is not affected by whether the domestic violence incident occurred in 2011 or 2013. The respondent submits this ground should be rejected.[33]
GROUND NO. 3 – THAT THE ONLY RELEVANT DOMESTIC VIOLENCE INCIDENT WAS IN 2011
[33] Respondent’s submissions, [7]–[11].
Appellant’s submissions
The appellant quotes the reasons at [24]:
“Given that the evidence that the [respondent] had been having events for some time before her major seizure in June 2014, takes the onset of symptoms of brain irregularities very close to the injury at work and relatively distant to the domestic violence in late 2011.”
The appellant states that it repeats its submissions in support of Ground No. 2. The appellant submits the above passage involved acceptance that the loss of consciousness in 2013 was a relevant matter. It submits that, having accepted the relevance, the Member limited his finding to the domestic violence incident in 2011. It submits he gave no proper reasons for this which was an error of law.[34]
[34] Appellant’s submissions, [33]–[35].
Respondent’s submissions
The respondent submits this ground is affected by the same flawed reasoning as Ground No. 2 and should be rejected.[35]
GROUND NO. 4 – FAILING TO GIVE PROPER WEIGHT TO THE HISTORY OF A BATHROOM FALL INVOLVING LOSS OF CONSCIOUSNESS IN APRIL 2012
[35] Respondent’s submissions, [12].
Appellant’s submissions
The appellant refers to the history, mentioned in the reasons at [9], of a head injury in April 2012 when the respondent blacked out for a short time. The same paragraph refers to other matters that could arguably have relevance to causation, a head injury as a child, family histories. The relevant paragraph of the reasons described these matters as being “to provide a background in assessing the question of the causative role and whether it is more likely than not that the injury at work on 6 March 2013 did result in the [respondent] developing focal epilepsy”. The appellant submits that the Member made no other reference to the incident in the bathroom. This is submitted to be “surprising as unlike the work incident there was a clear history of a head injury resulting in a loss of consciousness”. The appellant submits there was not “any further consideration to the potential causative role of the fall in April 2012”.[36]
[36] Reasons, [9], referred to in appellant’s submissions, [36]–[37].
The appellant submits the “failure … to give proper consideration” to the head injury in April 2012 constituted an error of law. It submits this flows both from the Member’s failure to consider this history, and from the Member’s failure to consider the effect of the lack of such consideration on the acceptability of the opinions of medical practitioners whose evidence the Member ultimately accepted. The appellant also submits there was a failure to provide adequate reasons on this issue, which constitutes an error of law.[37]
[37] Appellant’s submissions, [36]–[38].
Respondent’s submissions
The respondent submits that, as with Grounds Nos. 2 and 3, there is no medico-legal support for the appellant’s proposition, including from Dr O’Neill, the appellant’s medico-legal expert.[38]
GROUND NO. 5 – THE MEMBER ASKED HIMSELF THE WRONG QUESTION
[38] Respondent’s submissions, [13].
Appellant’s submissions
The appellant refers to the reasons at [27] where the Member said that the respondent, within a relatively short period of the incident on 6 March 2013, “began to experience the episodes described in the medical reports”. The appellant refers to the reasons at [28] which state:
“I am persuaded by the medical evidence relied upon by the [respondent] as establishing causal connection between the incident at work and the development of epilepsy. Other incidents identified by the [appellant] well preceded [sic] the incident at work and there is no medical opinion that the fall in the bathroom or the domestic violence incident in 2011 are indeed, causally related. Also, there is no medical evidence to support that it is likely that the epilepsy is idiopathic or hereditary.”
The appellant submits the above is based on an erroneous factual finding, that the only other causal event occurred in 2011, “contrary to the evidence in the Westmead Hospital Discharge Summary” (which it submits was not properly addressed or the subject of proper reasons). The appellant submits the proper question was not simply whether the onset of epilepsy symptoms was proximate to the work injury, but rather whether the respondent had satisfied her onus of proving a relevant causal connection on all of the evidence. It submits this was compounded by the failure to give sufficient weight to the history of an onset of symptoms following a violent assault by the former boyfriend.[39]
[39] Appellant’s submissions, [39]–[40].
Respondent’s submissions
The respondent submits the Member was required to consider the competing medico-legal opinions on causation of the respondent’s epilepsy. Drs Mellick, Borire and Spittaler considered it resulted from the subject work injury; Dr O’Neill considered it was idiopathic. The respondent submits Dr O’Neill was not confident about his opinion, he recommended, in his report dated 9 November 2022, that the causation issue should be put to Dr Wong, an epilepsy specialist. The respondent submits the Member considered the appellant’s argument (which was unsupported by medical evidence) that the condition resulted from domestic violence or a fall in the bathroom. The Member noted there was no medical opinion supporting causation by those episodes.[40]
[40] Respondent’s submissions, [14]–[16].
The respondent submits the appellant’s criticism of the Member’s reasoning on causation is “made without providing any forensic basis for a cause of the [respondent’s] epilepsy other than the subject injury”. The respondent says the appellant does not argue that the Member should have accepted its own medico-legal case, the opinion of Dr O’Neill, that the epilepsy is idiopathic. The respondent submits the appellant has not established appealable error.[41]
GROUND NO. 6 – THE WEIGHT GIVEN TO THE RESPONDENT’S MEDICAL OPINION
[41] Respondent’s submissions, [17]–[18].
Appellant’s submissions
The appellant refers to the Member’s reliance on the respondent’s medical evidence, addressed at [11] to [24] of the reasons. The appellant’s submissions seek to identify difficulties with the evidence from various doctors on whose views the Member relied.
Dealing with the general practitioner, Dr Nguyen, the Member referred to that doctor’s history, taken on 10 June 2014, of “occasional seizures for about 15 months”, which the Member said “would take the advent of the seizures even closer to the incident at work”. It submits the Member relied on this “apparent proximity” as “highly significant”. The appellant submits there are “several difficulties with that approach”. The first is the “alternative history” in the Westmead Hospital discharge summary. The second is that it elevates Dr Nguyen’s history “to a level of factual finding” without giving proper reasons. The appellant submits the Westmead Hospital discharge summary was recorded a matter of days before, and there is an inference the respondent was the source of it.[42]
[42] Appellant’s submissions, [41]–[42].
The appellant refers to the opinion of Dr Wong, a treating neurologist. Dr Wong recorded a history that, in the work incident, the respondent “blacked out for a minute” and “had to be carried to the office”. The appellant refers to its previous submission that such a finding was not open on the evidence and submits this undermines the accuracy of Dr Wong’s recorded history. The appellant submits the Member did not address the inaccuracy of this history and its effect on the reliability of Dr Wong’s opinion. The appellant says Dr Wong concluded the cause of the respondent’s epileptic symptoms was unclear. The Member noted this, and then commented on the EEG study in April 2019, saying it “‘confirmed the seizures appeared to be coming from the left temporal region’ and that ‘this would suggest some brain injury’.” The appellant submits the Member “placed some considerable weight on that evidence despite its obvious qualifications and limitations”. It submits the Member “effectively substituted his own opinion for that of the doctor, who despite the studies did not conclude that the work incident caused the [respondent’s] epileptic seizures”.[43]
[43] Appellant’s submissions, [43]–[44].
The appellant refers to the reports of Dr Borire, a treating neurologist, dated 15 April 2020 and 10 October 2022. The appellant submits the Member noted the failure of Dr Borire to refer to any history of domestic violence. The appellant submits the Member failed to address the issue of whether there was a ‘fair climate’ for the doctor’s opinion “to be given any weight”. The appellant submits this was “the gravamen of [its] written submissions”. It submits the doctor’s opinion was robbed “of any real weight” and the Member’s reliance on it (to the extent to which such reliance can be inferred) constituted error.[44]
[44] Appellant’s submissions, [45].
The appellant refers to reports dated 1 June 2021 and 5 October 2022 from Dr Mellick, a neurologist qualified in the respondent’s case. The appellant says the Member noted that Dr Mellick did not have a history of domestic violence or the bathroom fall. The appellant refers to the Member’s analysis of Dr Mellick’s opinion, said to be that the respondent “did not have any history of epilepsy before the incident at work, therefore the [respondent’s] epilepsy is causally related to work”. The appellant submits this “could not be accepted for two reasons”. The first was that “the doctor did not have the complete history of potentially causative events, [which] the Member acknowledged but then failed to address”. The second was that the opinion was “no more than a bare assertion based on the reductionist logic of post hoc ergo propter hoc”.
The appellant submits that, reading the reasons as a whole, the Member placed “considerable weight” on Dr Mellick’s opinion, in his finding on causation. It submits this involved error. Dr Mellick did not have a full history. The reliance on the temporal connection overlooked the significant history in the Westmead Hospital discharge summary and the fall in April 2012. The appellant submits it was not open to the Member to accept that Dr Mellick’s opinion was propounded in a ‘fair climate’.[45]
[45] Appellant’s submissions, [46]–[48].
The appellant quotes from the reasons of Beazley JA in Hancock v East Coast Timber Products Pty Ltd at [82], where her Honour (as her Excellency then was) dealt with the requirements of expert evidence in the former Workers Compensation Commission of NSW.[46] The appellant submits the “degree of variance of the history relied on by Dr Mellick” is such that the principles in Paric v John Holland Constructions Pty Ltd[47] were not satisfied. It submits Dr Mellick’s opinion on causation carried no evidentiary value and the Member erred in relying on it. It submits the absence of “proper reasons” for reliance on the opinions of Drs Wong, Borire and Mellick, in the face of evidentiary deficiencies, also constituted error of law.[48]
[46] [2011] NSWCA 11; 80 NSWLR 43 (Hancock).
[47] [1985] HCA 58; 62 ALR 85 (Paric – High Court); [1984] 2 NSWLR 505 (Paric – Court of Appeal).
[48] Appellant’s submissions, [49]–[51].
Respondent’s submissions
The respondent submits the Member was required to consider competing opinions on causation of the epilepsy. It was open to him to find there was a “significant head injury”. Drs Mellick, Borire and Spittaler all considered head trauma could cause epilepsy. Dr O’Neill did not reject this proposition, saying:
“Whilst I agree with Dr Borire that epilepsy is known to occur after head trauma, it is my experience that head trauma giving rise to epilepsy is substantive rather than a mild head injury of the type which occurred on 06 March 2013. It is also true that many cases of epilepsy are idiopathic – cause unknown.”[49]
[49] Respondent’s submissions, [20]–[23].
The respondent refers to its submissions before the Member, in which she argued that head trauma, sufficient to give rise to 7 per cent whole person impairment of the neck on assessment by Dr Machart four years after the injury, “could not reasonably be considered to be ‘mild’”. The respondent notes that the appellant’s submissions fail to mention Dr O’Neill’s acknowledgment of the relationship between head trauma and epilepsy.[50]
[50] Respondent’s submissions, [24]–[25].
The respondent submits the appellant has not indicated why its medical case should be given greater weight than the expert reports from Drs Mellick, Borire and Spittaler; the appellant’s submissions fail to even refer to its own medical case. The respondent submits it was open to the Member to accept the worker suffered a significant head injury, and such a blow would cause the development of epilepsy. This was the consensus of Drs Mellick, Borire and Spittaler. The respondent submits error in relation to this ground is not established.[51]
GROUND NO. 7 – ERROR IN PLACING WEIGHT ON DR SPITTALER’S OPINION
[51] Respondent’s submissions, [26]–[28].
Appellant’s submissions
The appellant refers to the history taken by Dr Spittaler. It referred to a loss of consciousness for an uncertain period of time and stated that “when she regained consciousness ‘her workmates lifted her’.” The appellant refers to “the potential unreliability of both aspects of that history”. The history recorded the first experience of a seizure several months after the incident. The doctor referred to a CT scan of the brain in June 2014 (reported as normal) and an EEG study in April 2019 which indicated “an abnormality in the left temporal region”. The appellant states that Dr Spittaler referred to an onset of seizures following a domestic violence incident in mid-2013. Dr Spittaler commented he could find no evidence in the documentation to support the reference to this in Dr O’Neill’s report. The appellant comments it is unclear why the doctor was not provided with a copy of the relevant discharge summary from Westmead Hospital. The appellant submits the failure of Dr Spittaler to consider and address that history undermines the weight to be given to the doctor’s opinion.[52]
[52] Appellant’s submissions, [52]–[53].
The appellant submits the Member “uncritically accepted the doctor’s opinion as supportive of [his] finding on the issue of causation”. It submits the Member gave no proper reasons for this, given the deficiencies in the “limited history relied on by Dr Spittaler”. It submits this constituted an error of law.[53]
[53] Appellant’s submissions, [54].
Respondent’s submissions
The respondent submits the appellant’s submissions involve “unfounded speculation” regarding alternative explanations for her epilepsy. The respondent submits that, if the potential causative events were of substantive relevance, the appellant’s medical case would have been based on forensic medical reasoning that explained the contribution of those events. The appellant’s medical case was that other head injuries were not relevant, the condition was idiopathic. The respondent submits Dr Spittaler would, on the material before him, have had no basis to “buy into any theory of different ‘potential causative events’ which no practitioner, including Dr O’Neill considered relevant”. The respondent submits Ground No. 7 is without merit.[54]
GROUND NO. 8 – REASONS FOR REJECTING DR O’NEILL’S OPINION
[54] Respondent’s submissions, [29]–[32].
Appellant’s submissions
The appellant submits the Member referred briefly to Dr O’Neill’s opinion in the reasons at [25] to [26], and it is clear from the reasons at [28] that the Member rejected that opinion. The appellant submits the Member gave no reasons for this, apart from very briefly summarising the doctor’s opinion. This is submitted to constitute an error of law.[55]
[55] Appellant’s submissions, [55].
Respondent’s submissions
The respondent notes the appellant did not refer to and rely on Dr O’Neill’s opinion in “purporting to argue the preceding 7 grounds of appeal”.
The respondent refers to the appellant’s (written) submissions before the Member dated 22 August 2023. The respondent describes these as making “fleeting reference to Dr O’Neill”. The appellant described Dr O’Neill’s view as being that the work incident was “not causative in terms of the epilepsy”, and that there are “a number of other head injuries more significant in nature as a result of domestic violence”. The appellant, before the Member, submitted Dr O’Neill was the only doctor with “a proper history, in particular of the domestic violence and the Discharge Referral of 8 June 2014”. It submitted the opinion of Dr O’Neill should be accepted, rather than Drs Mellick and Spittaler and the treating doctors, Dr Lim and Dr Borire.[56]
[56] Respondent’s submissions, [33]–[36].
The respondent submits that, notwithstanding the above, Dr O’Neill, whose report dated 14 September 2022 (misdescribed as “22 September 2022”) was not acknowledged or referred to in the employer’s submissions, did not attribute the epilepsy to domestic violence. The respondent asks rhetorically what the appellant “considers Dr O’Neill’s opinion to be”. Is it argued that the respondent’s epilepsy is idiopathic, consistent with Dr O’Neill’s opinion, and if so, why? The respondent notes the appellant does not advance a ground of appeal on that basis. The respondent asks whether the appellant argues, consistent with grounds of appeal nos. 2 to 7 inclusive, that the appellant’s case is that the epilepsy was caused by domestic violence and/or a fall in the bathroom. The respondent notes that neither of these “potential causative events” are supported by Dr O’Neill as a cause. The respondent submits Grounds No. 8 is “obviously misconceived and should be rejected”.[57]
[57] Respondent’s submissions, [37]–[41].
THE NATURE OF THE APPEAL
The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“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.”
In Raulston v Toll Pty Ltd,[58] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[59] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[60]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing 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 [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[61]
[58] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[59] (1966) 39 ALJR 505, 506 (Whitley Muir).
[60] [1996] HCA 140; 140 ALR 227.
[61] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[62]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[63]
[62] [2020] NSWCA 54 (Hill).
[63] Hill, [20].
In Northern NSW Local Health Network v Heggie[64] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[64] [2013] NSWCA 255; 12 DDCR 95, [72].
CONSIDERATION – GROUND NO. 1: THE LOSS OF CONSCIOUSNESS FINDING
The Member briefly set out the issue between the parties. He described the door which struck the respondent as a “hollow core door” (consistent with the appellant’s lay case). He said the respondent’s statement indicated she was “rendered unconscious for a short period”, there was “some dispute about this”. The respondent said she did “not recall the door falling on her” and felt “rather odd after the incident”. A witness said the respondent was holding her head and said it was sore; the respondent reported the matter to her manager and left shortly thereafter. The respondent woke on the following morning, 7 March 2013, with severe headache and pain, felt disorientated and attended Dr Chernyak, her general practitioner. She was sent for a CT scan of the neck and brain. The CT scan of the brain was normal. Dr Chernyak recorded an “abbreviated note … that there was no loss of consciousness”.[65]
[65] Reasons, [2], [4].
The entry in Dr Chernyak’s clinical notes for 7 March 2013, recorded on that date, stated:
“Trauma @ work – heavy door fell on pt head, no LOC
headache today
Examination:
General:
BP (sitting): 109/66
Pulse: 69
Dry oral mucosa
Cranial nerves NAD
No neck tenderness, full ROM in neck
Reason for visit:
Headache
Neck pain
Actions:
Adverse drug reactions queried – Nil known
Letter printed.
Letter written re. Medical Certificate.”[66]
[66] Application to Admit Late Documents (AALD) 15/11/22, pp 87–88.
The Member specifically referred to the above clinical note and noted the entry “No LOC”. He specifically noted there was “some dispute” about whether the respondent was rendered unconscious. The Member referred to the respondent’s lack of recall of the door falling on her, and to her feeling “rather odd after the incident”. He said the respondent had “consistently given a history to specialists of being knocked unconscious”.[67] The Member referred to Dr Mellick’s report dated 1 June 2021. That report recorded a history that other workers were carrying a fish tank past the door, the respondent was standing nearby. The respondent said she then had no recollection of events until she regained continuity of recall when she was being carried up some stairs to the boss’s office. Dr Mellick, neurologist, described this as “a clear history of a significant head injury with unconsciousness”.[68] The Member dealt with this medical evidence, saying:
“Dr Mellick described how the [respondent] had no recollection of events until gaining continuity of recall. I would regard this as an accurate account of events, and it does suggest that the [respondent] experienced some loss of consciousness following the blow.”[69]
[67] Reasons, [2], [4], [6].
[68] ARD, pp 37, 40.
[69] Reasons, [6].
The appellant submits the finding that the respondent lost consciousness was “not open on the evidence”. The history of a lack of recollection is submitted not to be positive evidence of a loss of consciousness, there were “a number of explanations … such as shock”. The appellant submits “the Member failed to give reasons for why he accepted the history contained in medical reports years after” rather than the “contemporaneous history recorded by Dr Chernyak on 7 March 2013”.[70]
[70] Appellant’s submissions, [24].
The note in Dr Chernyak’s records states “no LOC”. This, on its face, is the doctor’s shorthand way of recording there was no loss of consciousness. It reflects Dr Chernyak’s impression on that topic. It is quite unlikely (although the evidence is silent on the point) that the respondent specifically said there was “no loss of consciousness”. The reasons refer (appropriately) to there being “an abbreviated note made that there was no loss of consciousness”.[71] This aspect of the evidence was raised in the respondent’s submissions in reply before the Member, where it was submitted there was a “need for caution regarding the accuracy of clinical notes”[72] and “this aspect of the case was not ventilated”.[73] The appellant submits on appeal, dealing with the entry in Dr Chernyak’s notes, that the respondent “did not provide any evidence disputing that she had told Dr Chernyak that at the time of the consultation on 7 March 2013”. This is in the absence of any positive evidence that the respondent gave a specific history of “no loss of consciousness”. The appellant refers to there potentially being “a number of explanations” for the respondent’s lack of continuity of recall at the time of the incident. These are not elucidated save for a reference to “shock”. The appellant does not reference this submission to medical evidence.
[71] Reasons, [4].
[72] See generally, Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, Mason v Demasi [2009] NSWCA 227 (per Basten JA at [2]).
[73] Respondent’s submissions in reply dated 29/8/23, [12].
There was medical evidence from Dr Mellick (who possessed appropriate expertise) referenced to the history he recorded from the respondent, which supported the finding that there was “some loss of consciousness”. The Court of Appeal in Onesteel Reinforcing Pty Ltd v Sutton[74] dealt with the operation of r 15.2 of the Workers Compensation Commission Rules 2010, a provision that was in substantially identical form to r 73 of the Personal Injury Commission Rules 2021 (the Rules). Allsop P (McColl and Basten JJA agreeing) said:
“… if a person has given a history to a doctor which is incorporated as an assumption for the doctor's opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor's opinion.”[75]
[74] [2012] NSWCA 282; 13 DDCR 351, (Sutton).
[75] Sutton, [4].
In the same case Basten JA said:
“Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once inadmissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita at [86], last sentence.”[76]
[76] Sutton, [83].
The evidence in the history taken by Dr Mellick constituted evidence on which the Commission was entitled to act. It was open to the Member to accept that evidence and to make such a finding. The appellant has not established error within the meaning of s 352(5) of the 1998 Act. Ground No. 1 fails. To the extent to which the appellant’s submissions refer to the adequacy of the Member’s reasons, that aspect will be dealt with later in these reasons, as will other instances where the appellant’s submissions raise the issue of ‘reasons’ in the absence of that topic being raised in the relevant grounds.
CONSIDERATION – GROUND NO. 2: THE ASSAULT IN MID-2013
Did the Member err in placing the domestic violence incident in 2011?
The appellant refers to the reasons at [8], reproduced in part at [27] above, which refer to a history of an assault by the respondent’s then partner, in which the respondent was knocked out. The reasons state the incident “appears to have happened in 2011”.
The material from Westmead Hospital deals with the respondent’s attendance on 8 June 2014. The ‘Hospital Copy’ of the “Ambulance Electronic Medical Record’ on that date is of poor quality but is largely legible. It records (in part):
“O/A patient found in bed ABC’s intact, alert and confused to day, date and year. Patient oriented … place. Per boyfriend he and the patient were sleeping and he was woken by the patient having tonic clonic seizure [?], which boyfriend states lasted about 5 minutes. Parents state that patient has been having absence/ partial complex seizures for a year and usually has one once a month. Parents and patient state she had her last seizure two weeks ago.”[77]
[77] AALD 15/11/22, p 23.
The Westmead Hospital discharge summary of the same date records “1 seizure/week for last 12 months”. The “CT Head” provisional report (part of the Hospital material) on the same date recorded a history of “suspected seizures averaging one episode per week for the past year as well as occipital headaches …”.[78] An addendum to the history, recorded by a hospital medical officer on the same date, stated “Seizures started around a year ago post head trauma through colour bond fence with her partner then punching her in the face and knocking her our [sic]. ?investigated”.[79] (For convenience I will refer to this as the ‘Colourbond incident’.)
[78] AALD 15/11/22, pp 29–30.
[79] AALD 15/11/22, p 31.
The material from Westmead Hospital includes a report dated “14 August 2014 (typed)” from Dr Duggins, a staff specialist who saw the respondent in the Hospital’s Department of Neurology. The history recorded in that report included:
“The episodes seem to have begun abruptly around October last year. There have been around 30 episodes of complete loss of consciousness since, but also an escalation in frequency with perhaps 10 since the presentation to Emergency in June.”[80]
[80] AALD 15/11/22, p 34.
The reasons refer to Dr Wong, neurologist, seeing the respondent in September 2018 and obtaining a history of both an assault by the respondent’s boyfriend in 2011 and the work injury on 6 March 2013.[81] Dr Wong saw the respondent on referral from her general practitioner, Dr Lim. In his report dated 11 September 2018,[82] Dr Wong recorded a history of partial seizures from late 2013 and “her first generalised tonic clonic seizure in early 2014”. Dr Wong described the epilepsy as “unclear as to the cause”. Dr Wong recorded the following history regarding an assault by the respondent’s boyfriend:
“Other than the injury she had in 2013 at work, she had been assaulted by her ex-boyfriend in 2011. She had a CT scan done at the time. I have got a copy of the report here dated 25 November 2011 of a CT of the brain, x-ray of the left hand and x-ray of the chest performed by Dr Gin Chan at Guildford performed at Fairfield Imaging Centre which were reported to be normal. She tells me there was no major injuries from the assault and I do not have any correspondences of the events.”[83]
[81] Reasons, [13].
[82] ARD, pp 51–53.
[83] ARD, p 52.
The Member proceeded on the basis that there was a single potentially relevant head injury associated with domestic violence, and that Dr Wong’s report, as a matter of history, placed that incident in 2011. The appellant’s submissions assume that the history of the Colourbond incident, recorded at Westmead Hospital, puts that incident at around the time when the seizures started in mid-2013.[84] The Colourbond incident is potentially dated, to the extent that seizures are described in the Westmead Hospital note as starting “around a year ago post head trauma”.[85] On a literal reading, this describes the onset of the seizures about a year prior to the history being given, with such onset postdating the Colourbond incident. It does not necessarily differentiate between the suggested dates of 2013 and 2011 (the latter of which the Member found). The Member plainly interpreted the history of the domestic violence incident in this way. In the reasons at [8] the Member recited the history from the Westmead Hospital discharge summary, in part, and said: “This incident appears to have happened in 2011 and was accompanied by the [respondent] having a CT scan of the brain at that time”. The history recorded by Dr Wong, regarding the domestic violence injury, was recorded by a treating specialist with the advantage of having investigations dating from 2011 when, on Dr Wong’s history, the incident occurred. Dr Wong also took a history of the consequences of the domestic violence incident: “She tells me there was no major injuries from the assault.”
[84] See, for example, the appellant’s submissions at [29]–[30].
[85] AALD 15/11/22, p 31.
The approach taken by the Member on this point was open on the evidence. It involved acceptance of a history recorded by a treating specialist. The finding that the assault occurred in 2011 was consistent with the contemporaneous investigations from 2011 that Dr Wong referred to. A finding that the assault occurred in 2013 would have been based on the dating, which was at the least ambiguous, in the hospital note referred to at [72] above. In Shellharbour City Council v Rigby, Beazley JA (as her Excellency then was, Ipp and Basten JJA agreeing) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[86]
[86] [2006] NSWCA 308, [144].
The Member’s finding regarding when the domestic violence incident occurred did not involve error within the meaning of s 352(5) of the 1998 Act. I note the passage from Hill quoted at [60] above.
The alleged failure to draw an inference
The appellant additionally submits it should have been inferred that the Colourbond incident occurred in 2013, not 2011. In support of this the appellant refers to “the history recorded in the Discharge Summary that the [respondent’s] seizures had started a year ago (i.e. in mid-2013) post head trauma through a Colourbond fence”. It also refers to “the correlation between the assault and the onset of the seizures in mid-2013”. It submits the respondent did not contradict this history.[87] The points raised have largely been dealt with in the discussion above. The respondent describes the argument as “speculative”. She refers to the lack of medical support for the proposition, including in the appellant’s medical case.[88]
[87] Appellant’s submissions, [29]–[30].
[88] Respondent’s submissions, [8]–[10].
The entry relating to the Colourbond incident is quoted at [72] above. There are various other entries in the Westmead Hospital notes on 8 June 2014 that mention domestic violence:
“Weight loss 18kg in past 3 years, due to abusive relationship with physical violence”
“2 miscarriages last year – states boyfriend beat her. Did not have D & C”
“Was in abusive relationship for 5 years, broke up 4 months ago. He took her car, would not let her present to hospital post seizures or go to GP.
Injuries due to past abuse – thrown through wall
Owns lawn mowing business, ex boyfriend has taken her equipment”
The report from Dr Duggins, a staff specialist in the Hospital’s neurology department, dated 14 August 2014, describes a history that includes:
(a) “She mentioned a couple of blunt head injuries, once in childhood, and at least once or twice as the victim of alleged domestic violence.”, and
(b) “I think [the respondent] has recently moved back in with her parents, after an on-again, off-again relationship with her partner, who was the alleged cause of the domestic violence incidents.”[89]
[89] AALD 15/11/22, p 33.
The various other references to domestic violence incidents do not refer specifically to head injury, save for that taken by Dr Duggins which refers to such an injury “once or twice”. It is quite clear that the incident of which Dr Wong took a history occurred in 2011. Dr Wong refers to having a CT scan report of the brain from the time, dated 25 November 2011, reported (along with the investigations of the left hand and chest) to be normal.
The respondent’s submissions before the Member referred to the need for caution in dealing with the accuracy of clinical notes (see [66] above). An example of this difficulty may be found in the current matter, in the histories recorded by the paramedics on attendance at the respondent’s home, and the history recorded in the Westmead Hospital notes, both on the same date. The former recorded “absence/partial complex seizures for a year and usually has one once a month”. The latter recorded “1 seizure per week for last 12 months” (see [71] to [72] above).
The High Court, in Fuller-Lyons v New South Wales, referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.”[90] In Flounders v Millar Ipp JA said:
“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture.”[91]
[90] [2015] HCA 31, [46].
[91] [2007] NSWCA 238, [35].
In these circumstances I cannot see that the Member erred in not drawing the inference for which the appellant argues on appeal. I note the passage from Raulston at [19], quoted at [59] above, dealing with inferences:
“Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.”
I am not satisfied the appellant has proved that the Member was wrong. The appellant’s argument regarding the drawing of an inference fails.
Dr O’Neill’s reports
In his initial report dated 12 April 2017,[92] Dr O’Neill recorded a history that the respondent could not recall the impact from when she was struck by the door, and her next recollection was two male colleagues helping her up the stairs, she could not recall if she was walking or being carried. The doctor said the head injury was “not one which would be expected to give rise to post-traumatic epilepsy”. The doctor suspected the respondent had “pseudoseizures i.e. non-organic (functional) seizures”. He said that, regardless of whether the seizures were “epileptic or non-epileptic seizures, she requires constant supervision”. He considered her unable to work. He considered that if the seizures were organic, the respondent required specialist supervision by an epileptologist; if non-organic she should be psychiatrically assessed. In a supplementary report of the same date,[93] Dr O’Neill said he did “not believe there has been any genuine loss of memory or development of epilepsy as a consequence of the mild head injury”.
[92] AALD 15/11/22, pp 9–13.
[93] AALD 15/11/22, p 14.
Dr O’Neill reported again, following a re-examination, on 6 June 2022.[94] Dr O’Neill described ongoing symptoms and treatment, particularly from Dr Wong, a neurologist from the Epilepsy Unit of Westmead Hospital. Dr O’Neill referred to the respondent’s admission to Westmead Hospital from 8 to 12 April 2014 for diagnostic video EEG monitoring. The discharge diagnosis was “medically refractory focal epilepsy”. Dr O’Neill, in his second report, said he had been incorrect to diagnose pseudoseizures. He said it was quite clear the respondent had “complex partial seizures arising from the temporal lobe with secondary generalised tonic-clonic seizures. It is clear that the epilepsy is severe, being refractory to multiple anticonvulsant medications.” Dr O’Neill said:
“I really think the question of causation needs to be put to an epilepsy specialist such as Dr Chong Wong. I would be surprised if the head injury as described could have given rise to the epilepsy as described but certainly many colleagues would disagree with me. In their medicolegal reports, both Drs Mellick and Teychennѐ, neurologists, felt the epilepsy was post-traumatic and related to the event of 6/03/13.”
[94] AALD 15/11/22, pp 16–20.
Dr O’Neill reported again on 14 September 2022[95] following a review of documents. The doctor’s attention was specifically drawn by those instructing him to the discharge summary from Westmead Hospital dated 8 June 2014. Dr O’Neill described the incident on 6 March 2013 as “clearly a minor head injury and not one which would be expected to give rise to any neurological problem”. The doctor referred to “a number of other head injuries, more significant in nature, as the result of domestic violence”. He said:
“I think it unlikely that any of the head injuries have given rise to the current diagnosis of epilepsy in that none of the head injuries have been of enough severity to result in traumatic intracranial pathology such as haematoma or punctate haemorrhage.
I suspect the epilepsy is idiopathic and unrelated to any of her head injuries.”
[95] AALD 15/11/22, pp 185–188.
Dr O’Neill reported again on 9 November 2022.[96] He responded to a series of questions about whether he agreed or disagreed with Dr Borire and Dr Mellick, both neurologists. Dr O’Neill summarised the report of Dr Borire dated 10 October 2022 and that of Dr Mellick dated 5 October 2022. Dr O’Neill considered the respondent had “epilepsy in the form of complex partial seizures arising from the left temporal lobe sometimes with secondary generalisation (grand mal seizures)”. He considered the respondent should be under the care of a “Comprehensive Epilepsy Service such as that offered by Dr Wong at Westmead Hospital”. Dr O’Neill said:
“In terms of causation, it would appear that the epilepsy began about six months after the minor head injury of 06 March 2013. I remain of the view that the head injury described on 06 March 2013 was not of the type that would be expected to give rise to epilepsy.
In my report of 14 September 2022, I made reference to a discharge summary of 08 June 2014 from Westmead Hospital stating that Ms Taylor’s seizures ‘started around a year ago post-head trauma through a Colorbond fence with her partner punching her in the face and knocking her out. If corroborated, this latter head injury might even be more concerning in terms of causation than the head injury of 06 March 2013.
Whilst I agree with Dr Borire that epilepsy is known to occur after head trauma, it is my experience that head trauma giving rise to epilepsy is substantive rather than a mild head injury of the type which occurred on 06 March 2013. It is also true that many cases of epilepsy are idiopathic – cause unknown.
It remains my view that the question of causation should be put to an epilepsy specialist, specifically Dr Wong.”
[96] AALD 15/11/22, pp 194–197.
I note that Dr Wong, in his report dated 11 September 2018, specifically stated that he did “not perform Workers Compensation reports or legal reports”.[97]
[97] ARD, p 53.
Dr O’Neill’s views on causation were ambivalent. He accepted that the respondent suffered from severe epilepsy. Having had access to the material from Westmead Hospital, the highest he put the role of the Colourbond incident was to say that “[i]f corroborated, this latter head injury might even be more concerning in terms of causation than the head injury of 06 March 2013”. Dr O’Neill thought it unlikely that any of the head injuries caused the respondent’s epilepsy as none were sufficient to cause traumatic intracranial pathology such as haematoma or punctate haemorrhage. He suspected the epilepsy was idiopathic, while accepting that many of his colleagues would disagree with him on this.
Dr O’Neill’s opinion does not support the proposition that the domestic violence incident, regardless of whether it occurred in 2011 or 2013, caused the respondent’s epilepsy. The doctor specifically rejects that proposition.
Would the alleged error vitiate the Member’s decision?
The respondent submits on the appeal that it does not matter whether the Colourbond incident was in 2011 or 2013. She submits there is no medical support for “an alternative traumatic cause” for the respondent’s epilepsy. She correctly submits that Dr O’Neill, in the appellant’s case, does not support the view that the respondent’s epilepsy was caused by the incident of domestic violence mentioned in the discharge summary dated 8 June 2014.
In Gerlach v Clifton Bricks Pty Ltd the plurality said:
“The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’. (emphasis in original).
It is necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.”[98]
[98] [2002] HCA 22; 209 CLR 478, [6]–[7].
To similar effect, in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd Moffitt P said:
“... it is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error ... It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.”[99]
[99] (1981) 48 LGRA 409, 419, quoted and applied in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 (per Handley AJA, Young JA agreeing), [110].
The Member accepted the medical case on which the respondent relied.[100] Whether the domestic violence head injury was placed in 2011 or 2013 would not have changed the result. There was no medical evidence which supported the proposition that the respondent’s epilepsy resulted from the domestic violence incident, regardless of whether it occurred in 2011 or 2013. The argument raised in Ground No. 2 would not, if accepted, have changed the result. I note the respondent’s argument to this effect was raised in its submissions in its Notice of Opposition. The appellant did not put on submissions in reply, arguing the contrary.
[100] Reasons, [28].
Conclusion
Ground No. 2 fails.
CONSIDERATION – GROUND NO. 3: THAT 2011 WAS THE ONLY RELEVANT DOMESTIC VIOLENCE INCIDENT
The appellant, in this ground, restates the submissions it made in support of Ground No. 2. The reasons given above in relation to Ground No. 2 are sufficient to deal with Ground no. 3, save for the following. There is an additional submission that the Member failed to give “proper reasons” for limiting his finding (at [24] of the reasons) to the domestic violence incident in 2011. The discussion above going to Ground No. 2 deals with the Member’s finding that there was a domestic violence incident involving head injury, which occurred in 2011. The Member, in the reasons at [8], plainly accepted there was a single such incident, in 2011, which was the subject of Dr Wong’s history involving head injury. It was consistent with the CT scan of the brain in 2011. The Member referred to the history in the Westmead Hospital discharge summary and clearly did not regard that history as inconsistent with the finding he made on the basis of Dr Wong’s history. I have noted, dealing with Ground No. 2, that this was consistent with a literal reading of the history in the Westmead Hospital notes. The various other instances of domestic violence raised in the hospital notes (and discussed above dealing with Ground No. 2) do not establish there was more than one such instance involving head injury. The appellant has separately submitted, in respect of various of its grounds, that the reasons were inadequate. It is necessary that reasons be read as a whole.[101] I will deal with the appellant’s submissions, regarding the alleged inadequacy of the reasons, later in this decision. Otherwise, Ground No. 3 fails.
[101] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale), 444.
CONSIDERATION – GROUND NO. 4: THE WEIGHT GIVEN TO THE BATHROOM FALL IN 2012
The appellant refers to the reasons at [9] which state:
“There is also an incident when the [respondent] suffered a head injury when she fell in her bathroom in April of 2012. She hit her head and blacked out for a short time. There is also a history of some sort of head injury when she was a child. Her brother developed epilepsy following a severe head injury in a motor vehicle accident. There was also a cousin who had epilepsy. I refer to these matters to provide a background in assessing the question of the causative role and whether it is more likely than not that the injury at work on 6 March 2013 did result in the [respondent] developing focal epilepsy. There is no question that the [respondent] suffers from focal epilepsy and is receiving treatment for that condition.”[102]
[102] Reasons [9].
The appellant submits the Member made no other reference to the bathroom incident. It describes this as “surprising” and as an “error of law”, submitting it was a “material fact” that was “highly relevant” to the causation issue. The submissions on this ground are not easily understood. The appellant refers to the failure of medical practitioners, whose evidence was accepted, to consider this history. Again, there is a submission the Member failed to give adequate reasons in his consideration of this evidence.[103]
[103] Appellant’s submissions, [36]–[38].
The respondent submits there was no medical support, from Dr O’Neill or anybody else, for the appellant’s argument on this point.[104]
[104] Respondent’s submissions, [13].
The respondent correctly submits that there was no support in the medical evidence for the presence of a causal relationship between the bathroom incident and the respondent’s epilepsy. Whether it was “surprising” that the bathroom incident was not mentioned does not constitute ‘error’ within the meaning of s 352(5) of the 1998 Act. Ground No. 4 fails, save that it will be referred to later in these reasons when I deal with the alleged inadequacy of the reasons.
CONSIDERATION – GROUND NO. 5: THE MEMBER ASKED HIMSELF THE WRONG QUESTION
The appellant refers to the reasons at [28] (quoted at [37] above). It submits those reasons were based on an erroneous factual finding that the only other causal event was that in 2011. It submits this was contrary to the Westmead Hospital discharge summary. It repeats its submission that there was error in the finding that “the only other causal event” was that in 2011. It repeats its submission that the reasons were not “proper reasons”. It submits the appropriate question was not only whether the onset of symptoms was proximate to the work injury, but whether the necessary causal connection was made out on the whole of the evidence. I note that the Member’s reasons, at [10], accurately set out the “central issue” as whether the work injury resulted in the respondent developing focal epilepsy. The appellant submits sufficient weight was not given to the evidence of assault by the former boyfriend.
The respondent refers to her medical case on causation, which was supported by Drs Mellick and Borire (both neurologists) and Spittaler (a neurosurgeon). The respondent’s submissions note there was no medical evidence supporting an argument that her condition was caused by either a domestic violence incident or the fall in the bathroom. Dr O’Neill (a neurologist), in the appellant’s case, did not support these propositions. The respondent says the appellant does not submit its own medicolegal case should be accepted. The respondent submits appealable error is not established.
The appellant’s submissions on this ground are largely dealt with in the discussion above dealing with Ground No. 2. The appellant, in Ground No. 5, argues that the Member considered the causation issue by reference to the chronological proximity of the respondent’s symptoms to her work injury, rather than considering the evidence as a whole.[105] This was not an argument raised in Ground No. 2.
[105] Appellant’s submissions, [40].
The appellant’s submissions raise the language in a frequently quoted passage from the reasons of Kirby P in Kooragang Cement Pty Ltd v Bates, where his Honour said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”[106]
[106] (1994) 35 NSWLR 452 (Kooragang), 463G–464B.
The timing of the symptoms was raised in the reasons at [27]. It was relevant to evaluation of the causal chain.[107] In Tubemakers of Australia Ltd v Fernandez Mason J (Barwick CJ and Gibbs J agreeing) said:
“He [Menzies J] was denying the proposition that ‘experience’ or ‘a common sense approach’ could make up for, or provide, a substitute for deficiencies in the medical evidence. No doubt his Honour was correct in so saying. But it is quite another thing to suggest that these remarks lend support to the view that confirmation of expert evidence cannot be sought in a sequence of events which tend to support the probability of a causal connection or that a sequence of events cannot be called in aid of drawing an inference which, according to expert evidence, is open.”[108]
[107] See Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (per McColl JA, Mason P and Beazley JA agreeing), [90].
[108] [1976] 50 ALJR 720 (Fernandez), 725.
The Member referred to the episodes, described in the respondent’s medical reports, as commencing “within a number of months” of the work injury, followed by the “major seizure in June 2014” and “repeated seizures” since. The Member found at [27] that the head injury was “significant”. He said at [13] that “whether the [respondent] was knocked out by the blow [in the work accident] or not, there was a period of loss of recall”. In the reasons at [19] the Member noted there was “no history of seizures or stereotypical nonconvulsive events until the incident at work”. The Member’s reasons at [20] noted that Dr Thambugala, a general practitioner, on 19 March 2013 recorded that the door (in the work incident) hit the left side of the respondent’s head, which correlated with the EEG findings in 2019.
The Member rejected the appellant’s argument on the causal role of both the domestic violence incident and the bathroom fall, accurately observing at [28] that there was “no medical opinion” that these incidents were “causally related”. Whether the blows to the head, in the domestic violence incident and the bathroom fall, were potentially consistent with causing epilepsy was not a finding that could properly be made on the basis of common knowledge and experience. The appellant’s medical case gave no support for such a finding.
The Member’s reasons at [16] to [21] referred to the expert evidence that supported the respondent’s case. Dr Borire considered it “plausible that the work incident caused the [respondent’s] epilepsy”. Dr Mellick said the “EEG monitoring at Westmead Hospital … confirmed his clinical assessment that the head injury occurring at work in March 2013 was a substantial contributing factor to the development of [the respondent’s] epilepsy”. The Member referred to the report from the medical assessor, Dr Spittaler. The Member said Dr Spittaler considered the respondent had suffered “a significant head strike” in the work incident and that there was a “chronological proximity” between the head injury and the development of epilepsy. Dr Spittaler considered there was “objective evidence on EEG of a seizure disorder”, it was “likely that the head injury has left her with development of complex partial seizures in the nature of epilepsy”. I do not accept the appellant’s submission that the Member failed to deal with whether the necessary causal connection was made out on the evidence as a whole.
Ground No. 5 fails.
CONSIDERATION – GROUND NO. 6: THE WEIGHT OF THE RESPONDENT’S MEDICAL OPINION
The appellant attacks the Member’s treatment of the probative value of the reports of Drs Nguyen, Wong, Borire and Mellick. These attacks are based on varying reasons and it is necessary to address them separately.
Dr Nguyen
The appellant submits that Dr Nguyen, on 10 June 2014, recorded a history of “occasional seizures for about 15 months”, which the Member said would “take the advent of the seizures even closer to the incident at work”. The appellant submits the first difficulty with this is that it ignores the history in the Westmead Hospital discharge summary. The Member’s treatment of the discharge summary is dealt with at length in the discussion regarding Ground No. 2. I have concluded that the approach taken by the Member was available on the evidence and did not involve relevant error.
The appellant submits the Member’s reference to this note of Dr Nguyen elevates the history to the level of a factual finding. The substance of the doctor’s note on 10 June 2014 reads:
“She suffers from seizure last Sunday. She states that she has been having seizure occasionally for the last 15 months. However she has not had any investigation/treatment. She had a brain CT while she was in hospital and it was normal. Is waiting for brain MRI. Comes for a referral letter.”[109]
[109] AALD 15/11/22, p 166.
In the reasons at [12] the Member referred to the above clinical note and said: “This would take the advent of seizures even closer to the incident at work.” (emphasis added) The Member referred to the report from Dr Spittaler, the medical assessor, who described “a chronological proximity of the development of epilepsy to that head injury, making it likely that the head injury has left her with development of complex partial seizures in the nature of epilepsy”. After referring to reports from Dr Borire, Dr Spittaler and Dr O’Neill, the Member made the following clear finding at [27] of the reasons:
“I am satisfied that the [respondent] suffered significant head injury on 6 March 2013 and a jarring of the neck. It was within a relatively short period following that incident and within a number of months that the [respondent] began to experience the episodes described in the medical reports. The [respondent] then experienced a major seizure in June 2014 and was taken by ambulance to hospital. She has suffered repeated seizures since that time.”
The criticism of how the Member dealt with Dr Nguyen’s note from 10 June 2014 is without substance.
Dr Wong
The appellant notes the history in Dr Wong’s report dated 11 September 2018, that in the work injury the respondent “blacked out for a minute” and “had to be carried to the office”. It refers to its previous submission that this version of events was not open on the evidence. The appellant submits the Member did not address the inaccurate history and its effect on the “reliability of Dr Wong’s opinion”. I have already concluded, in dealing with Ground No. 1 above, that it was open to the Member to find that there was some loss of consciousness.
Dr Wong described the respondent’s epilepsy as “unclear as to the cause”. He also said he did not do workers compensation or legal reports.[110] The issue in the case was causation, and Dr Wong did not express a view on that topic. It is a little difficult to understand what aspect of Dr Wong’s opinion the appellant is concerned may be affected by an allegedly inaccurate history.
[110] ARD, pp 51–53.
The appellant notes the EEG study was carried out at Dr Wong’s request.[111] The appellant refers to the EEG study in April 2019, referring to its “obvious qualifications and limitations”. The meaning of this phrase is opaque. I note the EEG study was reported as confirming “a diagnosis of focal seizure disorder”. The reporting doctor, a staff specialist and epilepsy fellow, described the investigation as “localising the seizure onset to the left fronto-temporal region”.[112] The Member’s reasons at [14] said the “study confirmed that the seizures appeared to be coming from the left temporal region. This would suggest some brain injury.”
[111] Appellant’s submissions, [44].
[112] ARD, p 56.
The appellant submits “the Member effectively substituted his own opinion for that of the doctor, who despite the studies did not conclude that the work incident caused the [respondent’s] epileptic seizures”. Dr Wong’s longer report, which described the cause of the epilepsy as unclear, is dated 11 September 2018. In that report Dr Wong said he did not do legal reports, but he was “happy to look after her as a patient”. The EEG study was carried out in April 2019. Dr Wong reported again on 12 April 2019, he said:
“During this week of video EEG monitoring we captured some seizures which appear to be arising from the left temporal region … During the seizures she has automatisms and can become confused. In one of these seizures, she secondarily generalised.
I have explained to [the respondent] about the diagnosis of focal epilepsy.”[113]
[113] ARD, p 210.
This report was silent on issues of causation, it dealt with the EEG monitoring and variations to the respondent’s medication regime.
The Member’s reference to the left temporal region is plainly consistent with the report of the EEG monitoring and Dr Wong’s report dated 12 April 2019. The Member’s reference at [14] of the reasons, to the results of the EEG study, do not suggest that the final sentence in that paragraph reflects the opinion of Dr Wong on causation. The Member’s finding was supported by medical evidence. Dr Spittaler said that the EEG report of 12 April 2019 “indicates an abnormality in the left temporal region”. Dr Spittaler said “EEG monitoring demonstrated changes consistent with left temporal focus for complex partial seizures”. Traumatic brain injury and focal epilepsy was diagnosed by Dr Khan, the treating psychiatrist.[114] The passage in the reasons at [14], criticised by the appellant, does not reflect the Member substituting his own opinion for that of the doctors. I do not accept the appellant’s criticism of how the Member dealt with the evidence from Dr Wong.
[114] See for example, ARD, p 64.
Dr Borire and Dr Mellick
The appellant submits that Dr Borire did not refer to a history of domestic violence and the Member failed to address this deficiency. The appellant submits this deprived Dr Borire’s report of “any real weight”; to the extent to which the Member relied on Dr Borire, this constituted error.
The Member at [12] of his reasons accurately described the issue of causation of the respondent’s focal epilepsy as the “central issue”. It was effectively the only issue. This submission begs the question – in the absence of any medical evidence which considered the history of domestic violence to have been causative of epilepsy, why did the doctor err in not dealing with the history of domestic violence? In particular, Dr O’Neill (in the appellant’s case) dealt with whether the incidents, other than the work injury, were causative of epilepsy and dismissed that proposition. The appellant argues that the medical evidence from the respondent was deprived of weight, unless it dealt with an argument the appellant made and for which there was no evidentiary support. This submission regarding Drs Borire and Mellick is misconceived.
The appellant submits Dr Mellick “did not have the full history of potential causative events”. It submits Dr Mellick overlooked the significance of both the history in the Westmead Hospital discharge summary and of the bathroom fall in April 2012. It submits there was not a ‘fair climate’ for his opinion. The appellant submits Dr Mellick’s opinion carried no evidentiary value and the Member erred in relying on it. The appellant refers to Hancock at [82] and to Paric.
In Paric in the Court of Appeal, Samuels JA (Hutley and Priestley JJA agreeing) said:
“Questions of law which can be thrown up by factual conflicts are, necessarily, somewhat limited. Although a great deal of ingenuity may be shown in attempting to create a question of law where none exists, it is our duty, of course, to penetrate even the most attractive arguments in order to lay bare, if that is the situation, the absence
of any argument which we have power to entertain.”[115]
[115] Paric – Court of Appeal, 507.
And:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be
fatal; in other cases even broad departures are not likely to affect the force of
the expert opinion. Moreover, it is for the tribunal of fact to assess this
factual basis. In the present case it seems to me that there was a fair climate
in which the expert views could properly flourish, and certainly it was open to
the learned judge to come to that conclusion.”[116]
[116] Paric – Court of Appeal, 509–510.
On appeal to the High Court, their Honours said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense. [117] (excluding references)
[117] Paric – High Court, [9]–[10].
In the context of the Commission, the above must be read in the light of r 73 of the Rules and the passages from Sutton quoted at [67] and [68] above.
Drs Borire and Mellick did not record a history of the domestic violence incident or the fall in the bathroom. The appellant submits there was not a ‘fair climate’ for the acceptance of their opinions. It submits the consequence of this was that the principles in Paric did not allow any evidentiary value to be given to their opinions on the issue of causation.[118]
[118] Appellant’s submissions, [50].
In Krstevska v Fast & Fluid Management Australia Pty Ltd, Roche AP, applying Hancock, in a passage with which I agree, said:
“The asserted facts do not have to correspond ‘with complete precision’ with the facts established. It is a question of fact whether they are ‘sufficiently like’ the facts established ‘to render the opinion of the expert of any value’ and whether they provide a ‘fair climate’ for the acceptance of the opinion.”[119]
[119] [2012] NSWWCCPD 69, [51].
The argument pursued by the appellant is similar to an approach rejected by the Court of Appeal in Hancock. Beazley JA in Hancock said:
“It is necessary at this point to return to his Honour’s reasons (at [154]). It is convenient to set out the relevant part of that passage again. His Honour said:
‘[Dr Summersell’s opinion] is also based on his acceptance of continuing symptoms since [the 2005 work incident], which I do not accept. Furthermore he has failed to explain or even consider the effect of the intervening events occurring on or about 22 January 2008 (lifting bearers and joists), late March 2008, (moving furniture and appliances), a second fall in late March or early April 2008, and in late April 2008 (two days sanding on knees), indeed he offered no explanation for [the appellant] ceasing work in March 2008. Therefore, the facts on which the opinion is based do not form a proper foundation for it.’ (emphasis in original)
With respect to his Honour, this reasoning is the same reasoning as that rejected by this Court in ASIC v Rich. Dr Summersell’s opinion did not have to expressly refer to the subsequent non-work related incidents in order for there to be a proper foundation for the opinion expressed in his reports. Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”[120]
[120] Hancock, [84]–[85].
The causation issue posed in the current matter did not involve comparison between various competing incidents or circumstances, that were potentially contributors to the condition of epilepsy from which the respondent undoubtedly suffers. There was no medical opinion from any source that attributed causation, to any degree, to the domestic violence incident or the fall in the bathroom. In those circumstances it was essentially fruitless for the appellant’s defence to focus on a possibility that the condition of epilepsy resulted from the domestic violence incident or the fall in the bathroom. There was no medical opinion to support such a finding. Such a finding could not properly have been made on the basis of common knowledge and experience, in the absence of expert opinion. The only issue which the respondent’s medical evidence needed to address was the issue identified by the Member, whether the injury on 6 March 2013 resulted in the respondent developing focal epilepsy. The failure of the reports from Drs Borire and Mellick to deal with the other incidents did not, in the circumstances, deprive the reports from these doctors of all weight. This submission is inconsistent with the reasoning in Hancock. I do not accept the appellant’s argument on this issue. The appellant has not established error within the meaning of s 352(5) of the 1998 Act. I note the Member’s reasons at [8] to [9] specifically referred to the domestic violence incident and the fall in a bathroom, together with matters of family history. This was on the basis that such a history provided “background” to the causation issue regarding the relevant work injury. Ground No. 6 fails.
The appellant submits there were “no proper reasons” given for the reliance on the opinions of Dr Wong, Dr Borire or Dr Mellick. It submits that reliance on their opinions, given the evidentiary deficiencies, involved an error of law. The challenge to the sufficiency of the Member’s reasons is dealt with below in the general consideration of the ‘reasons’ arguments. The submission that the Member’s reasoning on the causation issue was “no more than a bare assertion based on the reductionist logic of post hoc ergo propter hoc”, is sufficiently dealt with in the consideration below of Ground No. 8, dealing with “How the Member dealt with Dr O’Neill’s evidence”. Ultimately, Ground No. 6 fails.
GROUND NO. 7: PLACING WEIGHT ON DR SPITTALER’S OPINION
The appellant refers to Dr Spittaler’s history, that there was “loss of consciousness for an uncertain period of time” and that when the respondent regained consciousness her workmates lifted her. The appellant describes this history as potentially unreliable. It submits Dr Spittaler referred to a reference in Dr O’Neill’s report to a history of “seizures following a domestic violence incident in mid-2013”. Dr Spittaler commented that he could not find evidence of this in the documentation. The appellant comments that it is “unclear” why Dr Spittaler was not provided with a copy of the Westmead Hospital discharge summary. It submits this undermines the weight of the doctor’s opinion. The appellant submits the Member gave no proper reasons for his acceptance of the doctor’s opinion given the historical deficiencies. It submits this constituted an error of law.[121]
[121] Appellant’s submissions, [52]–[54].
The respondent refers to the state of the medical evidence. The appellant’s medical case was that other head injuries were irrelevant, the condition was idiopathic. There would be no basis for Dr Spittaler to engage with other potentially causative events which no medical practitioner considered relevant.[122]
[122] Respondent’s submissions, [29]–[32].
It cannot be known whether Dr Spittaler was not provided with all of the material from the Westmead Hospital discharge summary, or whether he simply could not locate part of it in the voluminous treating records which were before the Commission. I accept that if relevant matters of history were not taken into account by the doctor, this could affect the weight to be afforded to his opinion. The forensic use the appellant sought to make of the records was that discussed in the consideration above relating to Ground No. 2. The appellant submits the history, if accepted, would support a finding of head injury, in an assault by the respondent’s then boyfriend, about one year before the presentation in June 2014, with seizures starting from about the time of that assault. Such a failure to take account of elements of the true history, for whatever reason, would potentially amount to factual error. This is clear from the passages from Paric, in both the Court of Appeal and the High Court, that are quoted above. The difficulty with this argument is that such a history is inconsistent with that found by the Member. I have concluded above that it was open to the Member to find, as he did, that the domestic violence injury to the head occurred in 2011, consistent with the history recorded by Dr Wong. I also note Dr Wong’s recorded history that there were no major injuries from the domestic violence assault. It follows the appellant’s submissions on this ground argue that Dr Spittaler’s medical opinion should have been based on a history inconsistent with that found to be factually correct. Such a course could not have led to a different result.
GENERAL CONSIDERATION OF THE ‘REASONS’ ARGUMENTS
The only ground of appeal which specifically raises the adequacy of the Member’s reasons is Ground No. 8, which goes only to the rejection of Dr O’Neill’s opinion. Notwithstanding this, the appellant, in its submissions dealing with Grounds Nos. 2, 3, 4, 5, 6 and 7, asserts that the reasons are inadequate and that in each instance this constitutes error of law.
The Member’s reasons at [10] identified a single “central issue”, whether the focal epilepsy from which the respondent suffered resulted from the work injury on 6 March 2013. I agree with that observation. Clause 24 of Procedural Direction WC3 requires that the “grounds of appeal must be clearly and succinctly stated” and must identify “the respects in which error of law, fact or discretion is alleged to have occurred”. Clause 27 of WC3 requires that “submissions must clearly and succinctly address each ground of appeal separately”. (emphasis added)
In Kowalski v Repatriation Commission[123] the Full Bench of the Federal Court said:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be.”[124]
[123] [2011] FCAFC 43 (Kowalski).
[124] Kowalski, [21].
The above passage from Kowalski has been frequently applied in the Commission (see, for example, the decision of Phillips P in Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos[125]). The President in Andronicos commented that it was necessary ‘for the asserted error to be identified in a meaningful way”.[126]
[125] [2024] NSWPICPD 7 (Andronicos).
[126] Andronicos, [91].
It is unsatisfactory to seek to raise the alleged inadequacy of reasons, in multiple submissions relating to different grounds, without that alleged error having been properly identified in the grounds of appeal. It is inappropriate that, in dealing with a challenge to the adequacy of the reasons, a Presidential Member should be expected to trawl through the submissions on multiple grounds, to identify the parts of the submissions that potentially may relate to the ‘reasons’ argument. The profession is reminded of the need to comply with the relevant procedural direction.
A further consequence of how the appeal is presented is that almost all of the grounds are put on the basis that the alleged errors, to varying extents, constitute errors of law. The single issue dealt with by the Member was ‘causation’. In Kooragang Kirby P said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact.”[127]
[127] Kooragang, 463G.
In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd the plurality in the High Court said: “Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case.”[128]
[128] [2013] HCA 10; 247 CLR 613, [43].
The grounds raised by the appellant are fundamentally factual grounds. They are subject to the established principles governing factual appeals, pursuant to s 352(5) of the 1998 Act, which are discussed at [58] to [61] above. In Secretary, Department of Education v Dawking,[129] Gleeson JA (Mitchelmore and Kirk JJA agreeing) described the requirements of an ‘injury’ finding pursuant to s 4(b)(i) of the 1987 Act as a finding of fact. His Honour additionally noted:
“What amounts to material that could support a factual finding is ultimately a question for judicial decision; that is, it is a question of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]–[91] (Hayne, Heydon, Crennan and Kiefel JJ). It was accepted in Workers Compensation Nominal Insurer v Hill at [8] that this principle in Kostas should be applied to an appeal under s 353 of the 1998 Act.”[130]
[129] [2024] NSWCA 4 (Dawking).
[130] Dawking, [45].
The appellant’s grounds essentially argue that there was error in the fact finding going to causation. These are allegations of factual error that are subject to s 352(5) of the 1998 Act. I have not accepted that the Member made factual findings that were not open to him on the evidence. The only ground that raises a failure to give adequate reasons is Ground No. 8, which will be dealt with below. The ground it raises is put on a restricted basis. The various references to a failure to provide adequate reasons, in passing, in the course of submissions dealing with fact finding relevant to the causation issue, do not raise the ‘reasons’ issue as a ground. I note the ‘reasons’ issue not having been raised in the grounds, save for Ground No. 8, the respondent has not responded to it in her submissions.
GROUND NO. 8: REASONS FOR REJECTING DR O’NEILL
The appellant submits the Member refers briefly to Dr O’Neill’s opinion at [25] to [26] of the reasons, and a comment at [28] of the reasons indicates that Dr O’Neill’s opinion was rejected. The appellant submits no reasons were given for rejecting Dr O’Neill’s opinion or for preferring the respondent’s medical case. It submits this was an error of law.[131]
[131] Appellant’s submissions, [55].
The respondent submits Dr O’Neill’s report dated 14 September 2022 (misdescribed as “22 September 2022”) was not referred to in the appellant’s submissions. The respondent notes that neither the domestic violence incident nor the bathroom fall were supported by Dr O’Neill as being causative. The respondent submits that Dr O’Neill considered the epilepsy to be idiopathic, but the appellant does not pursue this argument on appeal. The respondent submits this ground should be rejected.[132]
[132] Respondent’s submissions, [37]–[41].
The duty to give reasons
In Beale Meagher JA said that “the statement of reasons must be looked at as a whole and the material inadequacies identified and considered”.[133] In Fisher v Nonconformist Pty Ltd[134] Kirk JA (Meagher JA and Simpson AJA agreeing) discussed the obligation to give reasons in the Commission. His Honour said there was “no general common law duty on executive decision-makers to give reasons for their decisions”.[135] His Honour referred to the statutory duty found in s 294 of the 1998 Act:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
[133] Beale, 444.
[134] [2024] NSWCA 32 (Fisher).
[135] Fisher, [136].
His Honour referred to r 78 of the Rules which provides:
“78 Statement of reasons for decision
(1) This rule applies only in relation to the following applicable proceedings—
(a) Commission proceedings,
(b) merit review proceedings.
(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
His Honour did not decide whether the obligation of a Member to give reasons was “to the same standard expected of a judge”. His Honour said that if it were, the standard was summarised in the following passage from the decision of the Court of Appeal in Ming v Director of Public Prosecutions:
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[136]
[136] [2022] NSWCA 209, [43].
Section 294(2) of the 1998 Act and r 78 of the Rules refer to a “brief statement”. It is necessary that these words be given meaning. The appellant’s submissions on this topic do not engage with the duty by reference to the provisions in the legislation and the Rules.
Some assistance may be gained from the decision of the High Court in Roncevich v Repatriation Commission.[137] In that matter the relevant statutory obligation of the Tribunal, in providing written reasons, was described as including “findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. The plurality (applying Minister for Immigration and Multicultural Affairs v Yusuf[138]) said this “required the decision-maker only to set out findings on those questions of fact which the decision-maker considered material to the decision”. Their Honours described the Tribunal’s reasons as adequate, saying:
“… the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties. The primary judge defined this at [70]:
‘The real issue was whether the relevant factor, namely the fall, was in fact related to the [appellant's] defence service. That issue was identified and addressed by the Tribunal.’"[139]
[137] [2005] HCA 40; 222 CLR 115 (Roncevich)
[138] [2001] HCA 30; 206 CLR 323.
[139] Roncevich, [62]–[64].
How the Member dealt with Dr O’Neill’s evidence
The Member briefly summarised Dr O’Neill’s views in the reasons at [25] to [26]:
“The [appellant] primarily relies upon the opinion of Dr O’Neill. Dr O’Neill provided a number of reports, and in the last of his series of reports, Dr O’Neill concluded that it was now clear that the [respondent] does suffer from epilepsy and that the seizures are arising from the left temporal lobe. However, he regarded the head injury at work to have been minor and not causative in terms of the epilepsy. Further, he regarded a number of other head injuries to be more significant and refers to domestic violence.
He nonetheless concludes that none of the head injuries have been of great severity and that he suspected that the epilepsy was idiopathic and that the question of causation should be addressed to Dr Wong.”
The Member said he was “satisfied that the [respondent] suffered significant head injury on 6 March 2013”. In the reasons at [27] the Member said:
“It was within a relatively short period following that incident and within a number of months that the [respondent] began to experience the episodes described in the medical reports. The [respondent] then experienced a major seizure in June 2014 and was taken by ambulance to hospital. She has suffered repeated seizures since that time.”
The above involved a factual finding of a “significant head injury”, contrary to Dr O’Neill’s opinion that the work injury was “minor”. It was consistent with identification of “a sequence of events which tend to support the probability of a causal connection” (see the passage from Fernandez quoted at [107] above). The Member’s reasons continued at [28]:
“I am persuaded by the medical evidence relied upon by the [respondent] as establishing causal connection between the incident at work and the development of epilepsy. Other incidents identified by the [appellant] well preceded the incident at work and there is no medical opinion that the fall in the bathroom or the domestic violence incident in 2011 are indeed, causally related. Also, there is no medical evidence to support that it is likely that the epilepsy is idiopathic or hereditary.”
The above involved the Member’s acceptance of the opinions on causation of Drs Mellick and Borire (two neurologists) and Dr Spittaler (a neurosurgeon). It involved the rejection of three alternative possible opinions on causation that were raised in the appellant’s case. These were that the fall in the bathroom and the domestic violence incident were potentially causative, and that the respondent’s epilepsy was “idiopathic or hereditary”. The Member observed there was no medical opinion to support any of these propositions. The Member then referred to Nguyen v Cosmopolitan Homes[140] and Malec going to the process of decision making on the balance of probabilities.[141] It was open to the Member to do so on the evidence.
[140] [2008] NSWCA 246.
[141] Reasons, [30]–[31].
Dr O’Neill’s reports are summarised at [86] to [89] above. He thought it unlikely that any of the head injuries caused the epilepsy, which he suspected was idiopathic. He thought Dr Wong, an epilepsy specialist, should be asked to comment on causation (Dr Wong, who treated the respondent, did not do medicolegal reports). It was Dr O’Neill’s view that employment was not a substantial contributing factor to the condition of epilepsy.
The submission that the Member gave no reasons for rejecting the opinion of Dr O’Neill, or for preferring the respondent’s medical case, is without merit. The Member’s finding of the nature of the head injury was that it was “significant” (as opposed to “minor”). He accepted the persuasive force of the respondent’s medical case, which supported the respondent’s position on ‘causation’. The Member found the medical evidence did not support any of the alternative propositions on ‘causation’ which were agitated by the appellant. The Member observed (validly, having regard to his factual findings) that the alternative findings for which the appellant argued “well preceded” the work injury. The Member referred to two frequently applied appellate decisions on fact finding and concluded he was persuaded that the work injury “has led to the development of epilepsy”.
The Member’s reasons satisfied the requirements of the 1998 Act and the Rules that are referred to above. If the standard expected of a member’s reasons in the Commission is the standard expected of a judge, I would accept that standard was met, in the circumstances of the current matter. In addition to the matters referred to above, I note the decision was given orally, a practice that has been encouraged in the Commission.[142]
[142] See Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPICPD 42, [18]–[19].
Ground No. 8 fails.
CONCLUSION
The various grounds raised by the appellant have failed. The appeal is dismissed.
DECISION
Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to bring the appeal.
The Certificate of Determination dated 20 September 2023 is confirmed.
Michael Snell
DEPUTY PRESIDENT
25 September 2024
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