ACW v ACX
[2022] NSWPICPD 19
•17 May 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | ACW v ACX [2022] NSWPICPD 19 |
| APPELLANT: | ACW |
| RESPONDENT: | ACX |
| INSURER: | Employers Mutual Ltd – as agent for the NSW Self Insurance Corporation |
| FILE NUMBER: | A1-W211/21 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 17 May 2022 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 16 July 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – medical evidence, alleged factual error – application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510, Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; common-sense factual findings on the basis of common knowledge or experience, procedural fairness – application of New South Wales Police Force v Winter [2011] NSWCA 330 |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| MCW Lawyers | |
| Respondent: | |
| Mr F Doak, counsel | |
| Bartier Perry, Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr P Sweeney |
| DATE OF MEMBER’S DECISION: | 16 July 2021 |
INTRODUCTION AND BACKGROUND
ACW (the appellant) was employed by a New South Wales Government Department (the Department/the respondent) in a senior role as from February 2015.[1] He injured his back and neck in a motor vehicle accident in the Australian Capital Territory on 25 February 2014.[2] This was the subject of a third party claim that was resolved by way of a deed of release dated 3 February 2017.[3] The appellant was involved in a further accident on 28 October 2014 when he was a passenger in a bus that collided with a car. The bus company paid a small amount to cover the cost of the appellant’s general practitioner and physiotherapy treatment after this incident.[4] This incident was not suggested to have been of any long-term significance.
[1] Application to Resolve a Dispute (ARD), p 13.
[2] ARD, pp 168–175, 191–200.
[3] ARD, pp 201–203.
[4] ARD, pp 10–11.
The appellant suffered injury in his job with the Department on 6 June 2016. He sat on an office chair from which some screws were missing, causing him to fall backwards. He stated that his head initially struck the floor, and as he fell he twisted and jarred and compressed his spine. He said that he felt immediate pain in his neck and lower back. He saw a nearby general practitioner, Dr Carr, and was referred for physiotherapy. He said that he took painkilling medications and carried on at work, he had other staff that could cover for him. The appellant stated that he deteriorated with time, and in “around August/September 2016 [he] started to notice … pins and needles in [his] legs and bladder leakage”.[5] The appellant continued under the care of Dr Carr and had physiotherapy treatment. He stated that he continued at work with increasing difficulties.
[5] ARD, pp 15–18.
On 7 May 2017, the appellant attended an Ikea store with his family. He described severe lower back symptoms during the two days prior. Whilst at the Ikea store the appellant spilled coffee on the floor and slipped on it, landing in a seated position on the ground. An ambulance attended. The appellant stated that he felt “severe pain in [his] lower back”. The appellant made his way home that evening and took Panadeine Forte. He stated that on the next morning his “pain levels were … pretty much the same as they had been before I had the fall at Ikea”. He went to work the next day, “not a lot worse than I had been suffering for months prior to 7 May 2017”. He saw Dr Carr on the following day.[6]
[6] ARD, pp 24–27.
The appellant saw Dr Coughlan and Dr Steel, both neurosurgeons, separately, on 16 June 2017. An MRI scan on that day demonstrated a disc protrusion at T12/L1. Dr Coughlan performed a microdiscectomy at the level T12/L1 on 29 June 2017.[7] The appellant remained off work, having rehabilitation, physiotherapy and hydrotherapy. By October 2017 he was having increased pain in the low back, nerve pain in the left leg and bladder leakage. The appellant resumed work in about November 2017. Following a further MRI scan on 13 November 2017 the appellant was reviewed by Dr Coughlan, who recommended fusion at T12/L1. Dr Coughlan performed this procedure on 30 January 2018. The appellant fell while walking in his garden at home on 8 February 2018. He was taken by ambulance to St George Hospital. There did not appear to be significant damage from the fall.[8] The appellant resumed work from about late March 2018. By April 2018 the appellant was suffering acute low back pain and deteriorating symptoms affecting his bladder, bowel and legs.[9]
[7] ARD, pp 31–32.
[8] ARD, pp 33–37.
[9] ARD, p 38.
Following a CT myelogram on 15 May 2018, Dr Coughlan discussed further surgery with the appellant. The appellant saw Dr Sears, neurosurgeon, on 13 June 2018 for an additional opinion. Dr Sears agreed that further surgery was justified. Dr Davies, neurosurgeon also agreed with this view.[10] Dr Coughlan performed surgery involving decompression at T12/L1 on 11 September 2018.[11] The appellant stated that his symptoms subsequently worsened when he resumed work and was placed under increasing pressures, including working long hours and travelling.
[10] ARD, pp 40–43.
[11] ARD, p 44.
The Department’s relevant offices were to relocate to Parramatta in late 2019. The appellant was concerned about his ability to cope, including with increased travelling time and obtaining medical treatment. After some discussion with ‘HR’ the appellant was offered and accepted a voluntary redundancy, effective 25 October 2019. He has done a little casual work since.[12] The respondent’s insurer, EML, paid compensation in respect of the fall on 6 June 2016 on a voluntary basis. On 1 May 2017 EML wrote to the appellant stating that it was “closing your claim from the date of this letter”, due to the appellant’s “successful return to pre-injury employment and the end of treatment”.[13]
[12] ARD, pp 57–61.
[13] ARD, p 96.
The Department declined liability for the payment of compensation benefits, in respect of the employment injury on 6 June 2016, as from 8 June 2017. In its dispute notice dated 7 June 2017 EML advised that it was declining liability for the “reported recurrence”. It stated that:
“… medical evidence from Dr Carr supports your current condition to be primarily attributable to the injury you previously sustained in the 2014 Motor Vehicle Accident, which was most recently exacerbated by your fall at IKEA on 7 May 2016 [sic, 2017].
On the basis your current condition cannot reasonably be said to be attributable to your employment with [the Department] or the injury sustained on 6/6/2016, liability in respect to your claim for recurrence is declined pursuant to Section 4, 4(b), 9A, 33, 59, 60 & 66 of the Workers Compensation Act 1987.”[14]
In the most recent of its dispute notices, dated 2 February 2021,[15] the Department’s insurer disputed that the appellant’s “medical condition” resulted from employment injury, and disputed that incapacity and any need for medical treatment resulted from employment injury. It disputed that there was injury at the level T12/L1 in the incident on 6 June 2016. It asserted that the injury at T12/L1 resulted from the fall at Ikea on 7 May 2017. It described the incident on 7 May 2017 as a novus actus interveniens and said that incident was the cause of any incapacity or need for treatment after that date.
[14] ARD, pp 98–101.
[15] ARD, pp 140–143.
The current proceedings were commenced by way of the ARD dated 9 March 2021. There was a change in the allocated date for hearing of the arbitration, as a consequence of which the Department’s counsel was unavailable to appear on the allocated date of 13 May 2021. Neither party sought to cross-examine or to call oral evidence. The Member made orders for the conduct of the hearing by way of written submissions. The appellant’s submissions were dated 28 May 2021 and those of the Department were dated 16 June 2021. The appellant lodged submissions in reply dated 21 June 2021. The Commission issued a Certificate of Determination dated 16 July 2021 which provided that there be an award for the respondent.[16]
[16] ACW v ACX [2021] NSWPIC 249 (reasons).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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 the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE NATURE OF THE APPEAL
The appeal is brought pursuant to s 352(5) of the 1998 Act, 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 Northern NSW Local Health Network v Heggie,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”.[17]
[17] [2013] NSWCA 255, [72].
In Workers Compensation Nominal Insurer v Hill[18] the Court of Appeal 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 & Zwanenberg Ltd v Kerr.[19] In Raulston v Toll Pty Ltd[20] Roche DP described the nature of such an appeal, applying Whiteley Muir to the appeal process pursuant to s 352 of the 1998 Act (since 1 March 2021[21] applying to a ‘Member’ rather than an ‘Arbitrator’):
“(a) An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.
(c) It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[22]
[18] [2020] NSWCA 54, [20]–[21].
[19] (1966) 39 ALJR 505 (Whiteley Muir).
[20] [2011] NSWWCCPD 25 (Raulston).
[21] The date of relevant commencement of the 2020 Act.
[22] Raulston, [19].
THE MEMBER’S REASONS
The Member’s reasons are summarised below in greater than usual detail, given the detailed analysis which led the Member to reject the appellant’s case, and the basis on which the decision is challenged on this appeal. The Member referred to the back injuries on 25 February 2014, 6 June 2016 and 7 May 2017. He referred to the respondent’s position that the need for surgery did not result from the injury on 6 June 2016, but rather from one or both of the injuries on 25 February 2014 and 7 May 2017. He noted the basis of the denial of liability in the dispute notice dated 2 February 2021.[23]
[23] Reasons, [1], [2], [6].
The Member summarised the lengthy statements of the appellant[24] which referred in detail to the appellant’s symptoms from time to time. He summarised the material from Sydney Doctors, from which Dr Carr practised.[25]
[24] Reasons, [16]–[42].
[25] Reasons, [43]–[50].
The Member referred to the parties’ submissions. Mr Doak, in the respondent’s submissions, attacked the reliability of the appellant’s evidence.[26] The appellant was examined by Dr Rowe on behalf of his then solicitors, in connection with a third party claim arising from the motor vehicle accident of 25 February 2014. Dr Rowe examined the appellant on 14 July 2016 and reported on the same day.[27] The doctor did not record a history of the employment injury on 6 June 2016. The respondent’s submissions attacked the appellant’s explanation for this omission and were also critical of an allegedly inaccurate history of the onset of neurological symptoms. The respondent submitted there was no account of neurological symptoms or signs in Dr Carr’s clinical record prior to the fall at Ikea. On 8 May 2017, the day following the fall at Ikea, Dr Carr recorded that the appellant “developed pins and needles in the ball of his left foot” (emphasis in the Member’s reasons). The respondent referred to the need for correlation between the factual foundation on which a medical opinion was based, and the facts proved in evidence, citing Paric v John Holland Constructions Pty Ltd.[28]
[26] Reasons, [51]–[55].
[27] ARD, pp 361–367.
[28] [1984] 2 NSWLR 505 (Paric No. 1), 509–510.
The Member referred to Mr Perry’s submissions on the appellant’s behalf. The respondent did not dispute the occurrence of a back injury in the incident on 6 June 2016. There was no significant challenge to Associate Professor Fearnside’s opinion, in the appellant’s case, that the mechanism of the fall in June 2016 was consistent with the T12/L1 pathology. Radiological findings on 9 January 2017 demonstrated a lesion at T12/L1 with 5 per cent loss of vertebral body height. All of the treating doctors, and Associate Professor Fearnside, regarded the fall from a chair in June 2006 as playing the “most significant role” in the symptomatology. Dr Smith, an orthopaedic surgeon qualified by the respondent, said the employment injury had aggravated the appellant’s degenerative changes, and did not say the effects of the aggravation had ceased. Mr Perry described the June 2016 injury as making “a significant contribution” to the need for the three surgical procedures.[29]
[29] Reasons, [56]–[57].
Mr Perry submitted “the Commission would not find that the [appellant’s] evidence was ‘crafted’ or ‘tailored’ for the purposes of personal gain”. Dr Carr reported that the appellant tended to “underplay” his symptoms. On 19 June 2017, well before litigation was considered, the appellant reported bladder symptoms to Dr Carr. Mr Perry submitted there was “no basis to reject the almost unanimous expert evidence that the June 2016 fall had a causal role in the development of the [appellant’s] symptoms”. The Ikea incident involved a “temporary worsening” of symptoms, there was no basis in the evidence to find the appellant had recovered from the employment injury in June 2016. Mr Perry referred to an email from the appellant dated 19 June 2017, within weeks of the Ikea incident, in which the appellant set out his symptoms over the previous 12 months. Mr Perry submitted this account was unlikely to be “fabricated”.[30]
[30] Reasons, [58]–[60].
The Member dealt initially with the credit issue. He said the appellant’s history to Dr Rowe in July 2017, and the appellant’s subsequent “comment” on that report, related worsening back symptoms and the development of leg symptoms to the motor vehicle accident in 2014. The appellant’s evidentiary statements, in the current proceedings, related the development of these symptoms to the fall from the chair in June 2016. The Member referred to the respondent’s submission, that the appellant’s description of the development of symptoms after the June 2016 incident was inconsistent with the clinical record. Dr Carr’s records contained no record of neurological signs before the fall at Ikea.[31]
[31] Reasons, [61]–[62].
The Member said that Dr Rowe saw the appellant at the request of his former solicitors, in connection with the CTP claim arising from the motor vehicle accident. The consultation was “some five weeks after the June 2016 injury”. The Member noted Dr Rowe’s description of the appellant’s difficulties, with “neck and back pain aggravated by certain activities”. There was a recent flare up of symptoms after moving house. There was “trouble bending over, changing nappies, doing the dishes, and working in the garden”, the appellant’s sex life was affected by back and leg pain. On examination there was no sign of radiculopathy in the lower limbs and no abnormality on neurological examination.[32] The Member said:
“Plainly, there is no reference to the June 2016 injury in the history recorded by Dr Rowe. According to the [appellant], he gave Dr Rowe an account of the incident but Dr Rowe chose to omit it from his report as it would ‘complicate’ the CTP claim.”[33]
[32] Reasons, [63]–[64].
[33] Reasons, [66].
The Member referred to a letter dated 12 October 2016, written by the appellant’s then solicitors to Dr Rowe, enclosing further medical material and providing “some comments” made by the appellant after reviewing Dr Rowe’s report “in its current form”. The Member quoted the following passage from that letter:
“There have been other injuries and flare-ups related to household duties such as gardening, cleaning and picking up or caring for his daughter. These flare-ups generally leave him incapacitated for 24 hours.”
“Page 3, paragraph 9 – pain in the client’s neck, as well as his back and leg have also affected his sex life.”
“Page 5, question 6 – the client is able to maintain his employment requirements as he regularly works from home. While his home office set-up does aggravate his back he is able to manage with over the counter medications.”
“Page 5, question 7 – the client’s ability to maintain his pre-injury leisure activities has significantly reduced. Prior to his injury the client was an avid hiker. He would regularly take long hikes requiring him to carry a day pack. He was also a keen gardener performing tasks such as mulching, pruning and weeding. He is now unable to walk, hike or garden for any extended period of time due to his shoulder and low back pain. These were tasks he could easily complete prior to sustaining his injury.”[34]
[34] Reasons, [67].
The Member in his reasons said:
“68. By his evidentiary statements, the [appellant] maintains that the restrictions on his personal, domestic and recreational activities resulting from low back pain only became apparent after the June 2016 injury. Irrespective of whether Dr Rowe chose to knowingly omit a relevant incident from his report of 14 July 2016 to further the [appellant’s] case there can be no doubt that the [appellant] instructed his own solicitors in October 2016 to inform Dr Rowe that he had ongoing back pain which interfered with many facets of his existence which he attributed to the motor vehicle accident. The contents of the paragraph above must be contrasted with his evidence in these proceedings that prior to the June 2016 injury his hobbies ‘included walking, gardening, hiking, geocaching, travel and swing and rock and roll dancing’ and he was able to perform household chores.
69. If, as he now states these symptoms did not arise until after his work injury and he was physically active prior to that, it appears he was content to allow his CTP claim to be resolved on the false basis that his low back symptoms had not significantly resolved with the passage of time but rather had progressed over a period of several years and significantly interfered with his activities of daily living.
70. In my opinion the differing accounts of the impact of the motor vehicle accident for the purposes of the CTP claim and in these proceedings suggest, at least, that the [appellant] is a poor historian and that his account of the sequelae of the various injuries is not always reliable. There are other aspects of the evidence which support that view.”
The Member referred to the history recorded by Dr Bentivoglio (qualified by the appellant’s former solicitors), in his report dated 4 December 2017, regarding recovery from the 2014 motor vehicle accident:
“Of relevance in [the appellant] is a past history of a motor vehicle accident in 2014, when he injured his neck, and to a lesser degree his back. He maintained that these injuries to his neck and back settled after 10 weeks, and he was back to normal. It took 12 months for the neck pain to settle to 90% normal.”[35]
[35] ARD, p 374.
The Member contrasted this[36] with the histories recorded by Dr Stephen[37] (qualified by the CTP insurer) and Dr Rowe[38] (qualified by the appellant’s former solicitors) in reports dated 16 November 2015 and 14 July 2016 respectively. The Member referred to the appellant’s statement dated 7 June 2018,[39] and observed that this statement contained “no history of back pain before the June 2016 injury”. The Member observed that this statement said of the 2014 motor vehicle accident that the appellant “suffered a soft tissue injury to the cervical spine. This resolved with physiotherapy.”[40] The Member referred to a line of appellate authority dealing with the need for caution in dealing with clinical notes from treating doctors.[41] The Member said of the appellant that it was “necessary to carefully consider his evidence in the context of the contemporaneous medical and other evidence”.[42]
[36] Reasons, [71]–[72].
[37] ARD, pp 352–357.
[38] ARD, pp 361–367.
[39] ARD, pp 64–68.
[40] ARD, p 64.
[41] Mason v Demasi [2009] NSWCA 227, Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, [8], Davis v Council of The City of Wagga Wagga [2004] NSWCA 34.
[42] Reasons, [73].
The Member dealt with the parties’ medical cases. He accepted Mr Perry’s submission that “the medical specialists nearly unanimously express the opinion that there is a causal nexus between the [appellant’s] incapacity in 2017 and beyond and the June 2016 injury”. He described Dr ALG Smith as “a possible exception”. Dr Smith considered that the fall at Ikea in May 2017 was the most likely incident to have produced the ultimate clinical situation. If it resulted from the employment injury in June 2016 it “would have produced his clinical situation soon after the fall of June 2016”.[43]
[43] Reasons, [74]–[76].
The Member quoted from the opinion of Dr Coughlan, in which the doctor expressed the view that “the June 2016 fall was the primary cause of the [appellant’s] ‘subsequent and ongoing symptoms’.” The doctor said the slip at IKEA in May 2017 “exacerbated his symptoms, leading him to seek further review’.” Dr Coughlan considered that, given the history, the mechanism of injury and the pathology demonstrated in the MRI scans, it was likely that the fall in June 2016 was the “major causative factor”.[44]
[44] Reasons, [77]–[78].
The Member referred to the opinion of Associate Professor Fearnside who was qualified by the appellant’s solicitors. Associate Professor Fearnside recorded that, following the 2014 motor vehicle accident, the appellant “made a complete recovery from the back pain he sustained in the 2014 motor vehicle accident and thereafter was able to live and work normally”. The doctor recorded that “[s]hortly after the workplace injury, [the appellant] experienced urgency of micturition and urinary incontinence, stabbing pain in his left leg, burning pain in the left thigh, and bilateral lower limb paraesthesia”. Associate Professor Fearnside said it is “more likely than not that the workplace injury on 6/6/16 either caused or aggravated the T12/L1 disc protrusion”. He considered the mechanism of injury was consistent with this.[45]
[45] Reasons, [79]–[80].
The Member referred to Dr Steel, who saw the appellant on 16 June 2017, the same day as Dr Coughlan. The Member noted a submission by Mr Perry that Dr Steel saw the appellant at the behest of the insurer. He said that “nothing turns on this, it seems more likely that Dr Carr made the referral although the insurer agreed to pay for it and sought a supplementary opinion from the doctor”. The Member described Dr Steel’s opinion as being the same as Dr Coughlan’s “on the basis of a very similar history”. Dr Steel said that an unusual traumatic force, such as the fall, impacted the appellant’s spine to cause a disc protrusion at T12/L1, which is unusual. He thought it unlikely the motor vehicle accident led to this disc herniation. It was most likely the damage was done in the fall on 6 June 2016.[46]
[46] Reasons, [81].
The Member considered the medical evidence. He said he rejected Dr Smith’s opinion with “no difficulty”. The doctor’s view that the lesion at T12/L1 was a “red herring” was contradicted by the opinions of four neurosurgeons. He said the appellant’s “need for treatment and incapacity patently results from the lesion at T12/L1”. The Member said the remaining issue was “whether the evidence establishes a satisfactory foundation for the medical opinion evidence”.[47]
[47] Reasons, [82].
The Member said the doctors who examined the appellant prior to 6 June 2016 found no clinical evidence of back pathology. Dr Travers, a general practitioner who treated the appellant following the motor vehicle accident, reported on 8 May 2014 that lumbar back pain had “largely resolved”. On 11 July 2014 she reported that the only sequelae of the accident may be some low grade neck pain. Dr Stephen in 2015 recorded “some intermittent back pain”, he thought the condition was “minor”. Dr Rowe, examining the appellant several weeks after the work injury, found a minimal loss of lumbar movement and no neurological signs, although the right thigh was slightly smaller than the left. The appellant first attended Sydney Physiotherapy Solutions on 6 July 2016. The notes recorded that “the [appellant] experienced pain in the neck, lower spine and the left posterior pelvis/hip after falling from a chair at work”. The note continued:
“Phx-2.5 years ago MVA-First 3 weeks quite painful with 2 episodes of sharp pain which caused collapse. Before falling off chair Lower Back would be aggravated by mowing the lawn, doing lots of dishes and sex. Neck was relatively okay-some reminders of it I/T”.[48]
[48] Reasons, [83]–[86].
The Member said there was a need for caution when dealing with notes from physiotherapists. The Member said the above note was consistent with Dr Rowe’s history of the condition of the appellant’s low back prior to the fall from a chair on 6 June 2016. Taken together, these histories suggest “some significant back symptoms immediately prior to” the employment injury. The Member said this contributed to the difficulty in establishing the effect of the work injury.[49]
[49] Reasons, [87]–[88].
The Member said the contemporaneous evidence was also inconsistent with the history, to medical practitioners following the May 2017 fall, that there were “no new symptoms”, no change in the pattern of the pain, and that symptoms returned to their pre-injury state within two weeks. The Member quoted the following from the note at the physiotherapy practice on 17 May 2017:
“took some time off from work due to kids being sick
stopped doing exercise
taking panadene [sic] forte to get through night with sleep
9 days ago aggravated everything - slipped at Ikea
fell on spine and jarred back
constant pain since
saw GP the next day after this
seeing again in 3 weeks time
no taken time off work
managing pain with meds if needed - mobic every day
sore in lower back - tends to be on left side
gets sudden shock into leg sometimes - maybe once or twice per day
not every day but some days maybe 3 times
left knee can be sore also since slip
wall squats used to aggravate knee”.[50]
[50] Reasons, [88].
The Member referred to some other notes from Mr Keane, the physiotherapist. On 22 May 2017 there was “constant” pain in the centre of the back although the appellant had experienced “less pins and needles over the weekend”. There were fluctuating complaints in late May 2017. On 5 June 2017 the appellant complained of the “worst pins and needles” affecting all of both legs. The appellant recounted an incident in which he collapsed over the weekend and an ambulance was called. The physiotherapist also recorded “issues stopping urine–2 week history” and advised the appellant to see his general practitioner. The Member recorded that the ambulance record of an attendance on 4 June 2017 was tendered in the appellant’s case. The Member quoted the following from the ambulance record:
“c/t 46yom at private residence post exacerbation of back pain. OA pt states has been dealing with chronic back pain since mva 3 yrs ago, Pt had nil fractures, Pt states he slipped and fell at Ikea 1 week ago and has been getting an increase in frequency of back spasms, intensity of pain and altered sensation since, Pt states this am was reaching for heat pack from microwave when he had intense 10/10 lower lumbar pain with pins and needles down both legs, Pt layed down and waited for back pain to recede but wife called Ambulance after pain did not immediately stop, OE pt obs as stated, Pt no longer has any back pain, Pt still states some tingling in R foot which he states he has experienced before but over past few days has been worse during back spasm. Pt has taken Mobic this am but not his usual panadeine forte. Transport options discussed with pt extensively and with pt wife who states is an ED nurse, Ambulance transport offered to pt who may not be able to get to Hospital if pain returns due to mobility and wife caring for two young children. Pt and wife eventually declined transport after discussing between themselves the advantages/disadvantages of Hospital transport or GP referral which pt has booked in to see tomorrow. Advice left with pt to seek further investigation/management of this chronic issue which is getting worse and to not hesitate calling back if pain returns and is unable to be acutely managed.”
The Member also quoted the “Patient Complaint” from the ambulance record:
“altered sensation tingling & pins and needles >> Both legs during back pain. Currently only has some tingling remaining in R foot; pain >> Not currently. Pt states when pain present it feels like someone stabbing a knife in his back; urinary incontinence >> Pt states over past few days has been slightly incontinent of urine.” (emphasis in original)[51]
[51] Reasons, [89]–[92].
The Member noted that the ambulance record on 4 June 2017 and the physiotherapy note on 5 June 2017 both recorded the urinary problems commencing recently. The Member said this was “inconsistent with the [appellant’s] account”. The Member said he accepted that a patient may not associate urinary incontinence with back problems. He said that given his findings regarding the reliability of the appellant’s evidence, it was “difficult to reconcile these histories with him having urinary difficulties some [time] before the fall at IKEA”. The Member said it was difficult to accept the “general thrust of the [appellant’s] complaints” that his symptoms returned to their previous level a few weeks after the fall at Ikea on 7 May 2017. The records were consistent with a significant worsening of the appellant’s back condition.[52]
[52] Reasons, [93]–[94].
The Member then turned to the complaints of pins and needles in the lower limbs. He said there was no record of pins and needles in the medical record before the fall at Ikea. The Member said that Dr Carr’s note, on the day after the fall at Ikea, recorded “fell at Ikea yesterday landing on buttocks developed pins and needles in ball of left foot”. The Member said that, in context, this was “highly suggestive of the pins and needles developing after the recent fall.” The notes following the fall record the appellant complained to his physiotherapist of a “sudden frequent shock into his leg, which might occur three times a day, and escalating pins and needles in his lower limbs”. The Member said that the discrepancies between the clinical record and the appellant’s evidence “only fortify my previously expressed opinion of the reliability of his evidence”.[53]
[53] Reasons, [95]–[96].
The above led to the Member making a finding regarding the weight of the opinion evidence that supported the appellant’s case on causation:
“On my analysis, the histories recorded by the [appellant’s] neurosurgeons, both treating and qualified, and assumed as the basis of their opinions, are not consistent with the facts proven in evidence. At the very least the [appellant] experienced increasingly more severe symptoms in the period after the fall at Ikea. But, it is also likely that he experienced urinary symptoms in the period after that fall and, with less certainty, the onset of pins and needles in his lower limbs. These matters are grossly inconsistent with the assumed histories of the doctors who support the [appellant’s] case.”[54]
[54] Reasons, [97].
The Member referred to Mr Perry’s submission based on the “nature of the fall on 6 June 2016”. The Member said there was “a good deal of medical evidence addressed to this”. He said that all of the doctors accepted the other incidents could have contributed to the T12/L1 lesion. They did not opine that the fall at Ikea could not have caused it. It was the appellant’s account of his symptoms following the fall at Ikea that “led to the conclusion that it should not be implicated in a significant way”.[55] The Member referred to Mr Perry’s submission going to the x-ray dated 9 January 2017, which demonstrated a fracture at T12/L1 with five per cent loss of body height. The Member said that none of the appellant’s doctors suggested that this was consistent with a T12/L1 disc lesion. He referred to Dr Steel who described “the suggestion of fracture [as] an over reading of the x-ray” and who said only an MRI would assist in proving the origin of the appellant’s lesion.[56]
[55] Reasons, [98].
[56] Reasons, [99].
The Member referred to “very occasional references” to leg pain in histories, prior to the fall at Ikea. Dr Rowe’s examination referred to left knee pain which he “vaguely attribute[d] to the motor vehicle accident and which he diagnos[ed] as chondromalacia patella”. The Member said there were also references to left knee pain after the fall at Ikea. The Member said it was “difficult to accept that Dr Rowe may have mistaken symptoms emanating from the back for chrondomalacia of the knee, given that he examined the knee at his consultation”.[57] The Member also referred to a solitary reference to “pain radiating to the l” in the physiotherapy note of 12 July 2017. It was said to be no longer occurring on subsequent visits in response to direct enquiry by the physiotherapist about leg pain. The Member said he doubted that it could be inferred there was neurological pain consistent with his T12/L1 lesion at that time”.[58]
[57] Reasons, [100].
[58] Reasons, [101].
The Member said he accepted that the appellant’s success required proof that “the work injury material[ly] contributed to his need for treatment and incapacity in accordance with the common law test of causation”.[59] He referred to March v Stramare (E & MH) PtyLtd[60] and Sutherland Shire Council v Baltica General Insurance Co Ltd.[61] The Member made an ultimate finding of fact:
“While the [appellant] undoubtedly suffered an injury to his low back on 4 June 2017, the evidence does not establish that it materially contributed to his T12/L1 lesion which has given rise to a need for surgery and an incapacity for work. He has not proven that the need for treatment and incapacity claimed in the Application results from the injury. The substantial body of medical opinion that supports the connection does so on a basis that is inconsistent with the evidence before the Commission and my findings. Regrettably, I make an award for the respondent.”[62]
[59] Reasons, [102].
[60] (1991) 171 CLR 50.
[61] (1996) 12 NSWCCR 716.
[62] Reasons, [103].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) In rejecting the opinion of Dr Coughlan, Member Sweeney fell into material error in ignoring the fact that that opinion had multiple bases, two of which were, as a result of this error, not addressed by Member Sweeney. (Ground No. 1)
(b) In rejecting the opinion of Dr Steel, Member Sweeney erred in concluding that it was immaterial whether or not Dr Steel was contracted by the respondent’s insurer to provide an opinion on the critical question and further erred in holding that Dr Steel was not so contracted. (Ground No. 2)
(c) In rejecting the opinion of Dr Steel, Member Sweeney fell into material error in ignoring the fact that that opinion had multiple bases, two of which were not, as a result, addressed by Member Sweeney. (Ground No. 3)
(d) In rejecting the opinion of Associate Professor Fearnside, Member Sweeney ignored the material fact that Associate Professor Fearnside was guided in forming his opinion both by the pathology and by the mechanism of the fall. (Ground No. 4)
(e) Member Sweeney erred in proceeding on the basis that each of the expert witnesses relied upon by the appellant conceded that the T12/L1 lesion could have been caused by the Ikea incident. (Ground No. 5)
(f) Member Sweeney erred in concluding that his finding that the appellant was “not always reliable” led to the conclusion that the onus was not discharged. (Ground No. 6)
GROUND NO. 1 – REJECTING THE OPINION OF DR COUGHLAN
Appellant’s submissions
The appellant refers to an MRI scan report dated 7 June 2017,[63] approximately four weeks after the fall at Ikea. Dr Black, the radiologist, referred to disc desiccation at T12/L1. Dr Coughlan, reporting on 22 June 2017, referred to a large disc herniation, with cord compression and some degree of calcification. Dr Coughlan performed a microdiscectomy on 29 June 2017 in which he removed a small fragment of disc. Mr Perry submits Dr Coughlan would have been able to observe the state of the thoracolumbar junction in performing that procedure. Mr Perry refers[64] to Dr Coughlan’s report dated 16 March 2018, in which the doctor said:
“It is impossible to be absolutely certain of the causative injury given the lack of prior MRI scans. There are no pre-existing or degenerative conditions or lifestyle factors that have contributed to his ongoing symptoms. It is possible that the T12-L1 disc herniation was a result of all three injuries ie the MVA in 2014, the fall at work in June 2016, and the fall at Ikea in May 2017. In my opinion, based on the history provided to me, the mechanism of injury and the pathology demonstrated on MRI scans, it is likely that the fall from the chair at work in June 2016 was the major causative factor.” [65]
[63] ARD, p 241.
[64] Appellant’s submissions, [19]–[23].
[65] ARD, pp 297–298.
The appellant quotes from the reasons at [97] (see [38] above). Mr Perry submits that Dr Coughlan’s opinion was not based only on the history. Dr Coughlan also relied on the “observed pathology” and the mechanism of injury. The appellant submits the Member dismissed Dr Coughlan’s opinion without considering the doctor’s reasoning on these other matters and this involved error.[66]
[66] Appellant’s submissions, [24]–[30].
The appellant further submits it was error for the Member to reject Dr Coughlan’s opinion on the basis of whether the facts on which the opinion was based were proved by evidence. The appellant submits the facts do not have to correspond with “complete precision to the proposition on which the opinion is based”, citing Paric v John Holland (Constructions) Pty Ltd.[67] Mr Perry refers to “very detailed evidence” from the appellant regarding his symptoms from June 2016 to the beginning of May 2017. He submits the Member did not reject this evidence. He submits the Member did not reject the proposition that the surgery undertaken was to address severe symptoms that had been in place since the chair incident. The appellant submits any lack of correlation between the facts proved, and the history relied on by Dr Coughlan, was “not material”.[68]
[67] [1985] HCA 58 (Paric No. 2).
[68] Appellant’s submissions, [31]–[36].
In summary, the appellant submits the Member erred in two ways. Firstly, he ignored two of the bases on which Dr Coughlan had formed his opinion. Secondly, he failed to observe the “significant consistencies between the history and the conclusion”, so that any inconsistency was of “little or no moment”.[69]
[69] Appellant’s submissions, [37].
Respondent’s submissions
The respondent deals initially with the first of these arguments. The respondent refers to the passage from Dr Coughlan’s report quoted by the appellant, and reproduced at [43] above, which it describes as “the critical part” of the doctor’s opinion. The doctor describes his opinion as being based on “the history provided to me, the mechanism of injury and the pathology demonstrated on the MRI scans”. The opinion was clearly based on all three of these factors. The doctor described the pathology demonstrated on the MRI scans as “consistent” with the fall from a chair. The respondent submits the appellant now invites “the Commission to speculate on a possible alternative opinion of Dr Coughlan if the history on which he expressly formed his opinion is not made out by the evidence”. The respondent submits the Member correctly identified that the history relied on by Dr Coughlan, in forming his opinion, “was not consistent with the history of the onset and nature of the symptoms in [the appellant’s] legs and bladder provided by the other evidence.”[70]
[70] Respondent’s submissions, [6]–[9].
Dealing with the second of the arguments, the respondent refers to a passage in Paric No. 2 at [9]. The respondent refers to the appellant’s submissions in which it asks whether the history on which a report was based was “sufficiently different” from the history which emerged in evidence, and “are the assumptions significantly different from the proven facts?” The respondent submits this represents “an inaccurate gloss on the statement of principle in Paric”. It quotes a passage which is set out below from Paric No. 2. It submits this is “a quite different standard” to that suggested in the appellant’s submissions.[71]
[71] Respondent’s submissions, [10].
The respondent submits the Member undertook a careful and detailed analysis of the evidence. The appellant’s grounds do not challenge that analysis or the Member’s findings of inconsistencies in the evidence. The respondent submits the history relied on by Dr Coughlan was “plainly different” to the evidence regarding the nature and onset of symptoms in the legs and bladder. It submits the submissions of the appellant should be rejected.[72]
[72] Respondent’s submissions, [11].
Appellant’s submissions in reply
The appellant submits that it does not invite speculation of Dr Coughlan’s possible alternative opinion. It submits the Member failed to address the pathology, and the mechanism of the employment injury, in addressing Dr Coughlan’s views.[73]
[73] Appellant’s submissions in reply, [6]–[9].
Consideration
In Paric No. 1 Samuels JA said:
“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.”[74]
[74] Paric No. 1, 509–510.
In Paric No. 2 the High Court said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) 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.”[75]
[75] Paric No. 2, [9].
In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was) discussed the above principles in the context of the Commission. The discussion remains applicable since the relevant commencement of the 2020 Act. Her Honour said:
“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.”[76]
[76] [2011] NSWCA 11; 8 DDCR 399 (Hancock), [82]–[83].
The first argument
Dr Coughlan, in his report dated 16 March 2018,[77] dealt with “What is the history of the injury/what caused it?” The report contained a lengthy list of symptoms since the fall on 6 June 2016. These included “lower back pain which radiated to both hips and legs (left worse than right)”, “frequent pins and needles in his legs, feet and groin”, and “urinary frequency and incontinence that was causing significant disruption to daily activities and nighttime sleep”. The doctor recorded a history that these symptoms only occurred since the fall on 6 June 2016. The doctor recorded a history that “a slip at Ikea in May 2017 exacerbated his existing symptoms”. Dr Coughlan referred to the MRI scans dated 7 June 2017 and 16 June 2017 which showed a “large central and right posterolateral disc protrusion at T12-L1 with spinal cord compression”. It is apparent that Dr Coughlan worked on a history that the multiple symptoms recorded, including symptoms of a potentially neurological nature such as radiating pain to the legs, pins and needles and urinary symptoms, dated from the 6 June 2016 injury, although were then exacerbated in May 2017. This is inconsistent with the analysis of the medical evidence and treating notes by the Member.
[77] ARD, pp 297–298.
Dr Coughlan thought it unlikely that the motor vehicle accident in 2014 would cause disc herniation at T12/L1, although described it as “theoretically possible”. He said it was “possible that the T12/L1 disc herniation was a result of all three injuries”. He thought that a “thoracolumbar herniation suggests an unusual traumatic force, which is consistent with the fall from the chair”. The doctor’s view that “the fall from the chair at work in June 2016 was the major causative factor” was expressed as being based on multiple factors, being the history provided to him, the mechanism of injury and the pathology demonstrated on MRI scans.
Dr Coughlan’s report does not suggest that he relied on “observed pathology” (the appellant suggests when performing the microdiscectomy) in forming his view on causation. He did rely on the pathology, to the extent that he thought it was possible, although unlikely, that a disc protrusion at T12/L1 resulted from the motor vehicle accident. He did not deal specifically with the likelihood of such a lesion resulting from the incident at Ikea. I note it was the doctor’s understanding, based on the history he took, that the multiple symptoms, including those of a neurological nature, were in place from the time of the 2016 work injury. Dr Coughlan, on the history he recorded, understood that the 2017 incident at Ikea “exacerbated his existing symptoms”. The appellant refers to the history in Dr Coughlan’s initial report dated 22 June 2017.[78] It submits this was consistent with that which the respondent argues to be the correct history. It is necessary that the doctor’s reports be read together. A more extensive history is relied upon in the doctor’s comprehensive report dated 16 March 2018 (see [54] above).
[78] ARD, p 247.
I accept the respondent’s submission that it would simply have been speculative, for the Member to embark on an analysis of what Dr Coughlan’s opinion on causation might have been, if the doctor were aware of the true factual background having regard to the Member’s analysis and findings. It was necessary that the Member give such weight to Dr Coughlan’s opinion as was appropriate, having regard to the extent of the compliance of his report with the usual requirements that govern expert evidence. It was necessary that the Member, as the tribunal of fact, assess the extent to which any lack of correlation between the facts as proven, and the assumed facts, deprived the opinion of Dr Coughlan of weight (see Paric No. 1 quoted at [51] above).
The Member described the histories assumed by the neurosurgeons as “not consistent with the facts proven in evidence”. The Member described the evidence of symptoms after the fall at Ikea as “grossly inconsistent with the assumed histories of the doctors who support the [appellant’s] case”.[79] The Member found that these inconsistencies could not be “put to one side” given his opinion regarding the lack of reliability of the appellant’s evidence.[80] The Member plainly regarded the opinion of Dr Coughlan as deprived of probative force. This conclusion was properly open on the evidence. The first argument does not succeed.
[79] Reasons, [97].
[80] Reasons, [96].
The second argument
Dr Coughlan’s recorded history was that the appellant suffered from severe symptoms, including of a neurological nature, subsequent to the injury on 6 June 2016 and before the injury in May 2017. The doctor proceeded on a history that the incident in May 2017 aggravated symptoms that were already present. This scenario was different to the Member’s analysis and findings based on the treating practitioners’ notes. The appellant submits any lack of correlation between the facts proved and the history relied on by Dr Coughlan was “not material”. I reject that submission. The level and nature of the appellant’s symptomatology following each of the three incidents was clearly important, in assessing the potential role of the various incidents in causing the lesion at T12/L1 and the appellant’s ultimate need for surgery. Dr Coughlan specifically referred to the history (of which this was a significant component) as one of the factors to which he had regard in assessing causation.
The appellant submits that the Member did not reject the appellant’s evidence in this regard (see [45] above). The Member made a finding at [96] of the reasons, that the discrepancies between the clinical records and the appellant’s evidence “only fortify my previously expressed opinion of the reliability of [the appellant’s] evidence”. He found that “the histories recorded by the [appellant’s] neurosurgeons, both treating and qualified, and assumed as the basis of their opinions, are not consistent with the facts proven in evidence”.[81] The question identified in Paric No. 1 was “whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed”. In the context of the Commission, applying the decision in Hancock (see [53] above), the lack of correlation between the facts assumed and the facts as proven, deprived Dr Coughlan’s opinion of probative force. This is inherent in the Member’s finding in the reasons at [103], that the appellant had failed to prove the relevant causal connection. The second argument is not made out.
[81] Reasons, [96]–[97].
Ground No. 1 fails.
GROUND NO. 2 – WHO ARRANGED DR STEEL’S EXAMINATION AND DID IT MATTER?
Appellant’s submissions
The appellant quotes the following from the reasons at [81]:
“Mr Perry suggested in argument that the [appellant] saw Dr Steel at the behest of the respondent’s insurer. While nothing turns on this, it seems more likely that Dr Carr made the referral although the insurer agreed to pay for it and sought a supplementary opinion from the doctor.”
The appellant submits that Dr Steel was in fact “engaged at the behest of the respondent insurer” and that this alleged factual error made a difference. The appellant relies on his own statement in which he stated that the insurer required him to see a neurosurgeon so that the insurer could obtain an opinion on causation. Mr Perry submits that a relevant referral was obtained from Dr Carr (the appellant’s general practitioner). He submits that the insurer required an opinion from a neurosurgeon but would not pay for the treating surgeon as the claim had been declined. It paid for Dr Steel but not Dr Coughlan. The appellant submits Dr Steel reported to the appellant, Dr Carr, the physiotherapist and a claims officer at the insurer, Simon H. The appellant submits that, if there was a significant flaw in the history taken by Dr Steel, an opportunity existed for the insurer to invite further comment to correct the history.[82]
[82] Appellant’s submissions, [40]–[48].
Respondent’s submissions
The respondent submits that the appellant has not demonstrated how any finding regarding who arranged the appointment with Dr Steel resulted in an error. Dr Steel qualified his opinion by stating that it was based on the history given. For the report to have weight, the history must sufficiently correspond with the evidence regarding the nature and onset of the appellant’s symptoms.[83]
[83] Respondent’s submissions, [12]–[13].
Appellant’s submissions in reply
The appellant submits that Dr Steel did not treat him. He submits the failure of the respondent to object to Dr Steel’s report was consistent with Dr Steel being qualified by the insurer.[84]
[84] Appellant’s submissions in reply, [11]–[13].
Consideration
The appellant’s submissions on this ground are not easily understood. The Member acknowledged the appellant’s submission on the point and said it appeared “more likely” that Dr Carr referred the appellant to Dr Steel. The Member did not make a specific finding to that effect, for the stated reason that “nothing turns on this”. The appellant postulates that the insurer, if it made the referral, could have invited some further comment if the history was flawed in some significant way. This does not go to whether the alleged error was dispositive; whether, if found, it affected the Member’s decision. The appellant carried the overall onus of proof in these proceedings. One aspect of this was adducing medical evidence that had a sufficient correlation, between the facts on which expert reports were based and the facts proven, that the expert evidence had sufficient weight to discharge the appellant’s onus. The respondent carried no onus to remedy any such deficiencies. The alleged factual error, if made out, would not constitute appealable error. There is no identified basis on which the alleged error, regarding which party qualified Dr Steel, could have affected the Member’s decision. The Member’s reasons are specifically to the contrary, “nothing turns on this”. It follows that Ground No. 2 fails.
I will address the allegation of factual error. The appellant’s claim relating to his injury on 6 June 2016 was closed by the insurer on 1 May 2017.[85] Following the incident at Ikea on 7 May 2017 the appellant issued a dispute notice denying liability for what it described as a “reported recurrence of injury”.[86] There was an email exchange between the appellant and Simon H, a case manager with the insurer.
[85] ARD, p 96.
[86] ARD, pp 103–106.
On 14 June 2017 Simon H wrote to Dr Carr, the appellant’s general practitioner, in a letter that included the following:
“2. Referral/s to see Neurosurgeons
[The appellant] has informed me that he is booked in to see Dr Steel as well as another specialist this Friday 16/06/17. If he was referred by your rooms could you please provide the referral letters for these appointments.
Without referral letters we are unable to approve and cover the costs of these
consultations.
Attached is [the appellant’s] authority to release information, as per the first page of the WorkCover Certificate of Capacity dated 08/05/2017.”[87] (emphasis in original)
[87] ARD, pp 242–243.
On 14 June 2017 the appellant forwarded an email to Simon H in the following terms (excluding formal parts):
“Following the voicemail message that you left this morning, I have been chasing copies of the referrals for my appointments on Friday - the GP had faxed them directly to each of the neurosurgeons and it took a bit of chasing to get them.”[88]
[88] ARD, p 113.
On 15 June 2017 Simon H, in an email, wrote:
“Since your claim is currently declined we will only be able to approve and cover the cost of one of the two referred consultations scheduled for tomorrow - you will be required to cover the second one. If the liability decision on your claim is reversed then this expense will be reimbursed at a later date.
Do you have a preference on which neurosurgeon we send the approval to?”[89]
[89] ARD, pp 108–109.
On the same day Simon H wrote to Dr Steel advising that the insurer had “approved the initial consultation for [the appellant] with yourself”. The letter attached a questionnaire which the doctor was asked to complete and return.[90]
[90] ARD, p 260.
The appellant saw both Dr Steel and Dr Coughlan on 16 June 2017. Dr Steel reported back to Dr Carr on 24 June 2017.[91] Complimentary copies of this report were furnished to Simon H, to the appellant and to “Dr Cormac Keane” of the Castlereagh St Clinic. The longer of Dr Steel’s reports, dated 5 September 2017 and dealing with causation, was directed to Simon H and a complimentary copy was forwarded to the appellant.[92]
[91] ARD, pp 248–249.
[92] ARD, pp 264–268.
The appellant relevantly stated:
“144. In any event, I told him [Simon H] that I was in the process of organising to see either Dr Pope, Dr Coughlan or Dr Allan as soon as possible.
145. Even though Simon H of Employers Mutual Ltd told me that it was declining liability for my workers compensation claim, it still wanted me to see Dr Steel so that it could obtain a medical opinion regarding causation of my lower back injury and symptoms.
146. In accordance with Employers Mutual Ltd’s instructions I saw Dr Steel on 16 June 2017.”[93]
[93] ARD, p 31.
The appellant submits the respondent’s failure, at the hearing, to object to Dr Steel’s report, on the basis it involved the appellant relying on more than one medicolegal report from a neurosurgeon, was consistent with Dr Steel having been qualified by the insurer. The submission is conjectural. An alternative explanation would be that Dr Steel was regarded as a treating doctor. The procedure adopted does not suggest that the appointment with Dr Steel was of a conventional medicolegal nature, arranged by an insurer. The process was of a somewhat hybrid nature. The appointments with both Dr Coughlan and Dr Steel were arranged in the context of referrals by Dr Carr, the treating general practitioner. The insurer forwarded an authority for the release of information to Dr Carr when seeking copies of the referrals. This is consistent with the usual practice when an insurer seeks material from a treating doctor. The appellant arranged for copies of the referrals to be forwarded from Dr Carr to the relevant doctors. Because it agreed to cover the cost of one of the consultations, the insurer asked the appellant which of the consultations he wished it to fund. The various matters referred to by the Member in the reasons at [81] are consistent with these objectively proven facts. Dr Carr did make the referral to Dr Steel, the insurer did agree to pay for it, and the insurer did seek a supplementary report from Dr Steel.[94] However one chooses to characterise that arrangement, the Member’s comment that “nothing turns on this” was appropriate. The alleged factual error is not made out in any event.
GROUND NO. 3 – REJECTING THE OPINION OF DR STEEL
[94] Dr Steel’s report 5/9/17, ARD, pp 264–268.
Appellant’s submissions
The appellant submits the Member’s reasons for rejecting Dr Steel’s opinion are found at [97] of the reasons (see [38] above). The appellant refers to the Member’s reasons at [81], in which he deals with Dr Steel’s opinion. The opening of that paragraph reads:
“Dr Steel, the neurosurgeon who initially saw the [appellant] on the same day as Dr Coughlan expressed the same opinion on the basis of a very similar history.”[95]
[95] Appellant’s submissions, [49]–[50].
The appellant states that Dr Steel’s history included a reference to mild urinary disturbance, but this was not the basis of Dr Steel’s opinion. The appellant submits the basis of Dr Steel’s opinion is the following:
“Unfortunately, the most significant accident that he has had is the significant fall with the collapsing chair in June 2016. He has had ongoing symptoms in his legs since this time with aching, pins and needles in the feet and sharp pain up and down the legs, all consistent with a cauda equine syndrome.”[96]
[96] ARD, p 265.
The appellant submits:
“The date of onset of bladder symptoms, so crucial to Member Sweeney’s rejection of any causal link at all between the chair incident and the appellant’s requirement for surgery, nowhere appears in the critical assessment by Dr Steel as a basis for his conclusion.”[97]
[97] Appellant’s submissions, [52].
The appellant submits that Dr Steel identified “considerations” that supported the incident on 6 June 2016 as the “mechanism of injury”. He submits the “chair incident” provided a “specific and unusual traumatic force such as would give rise to injury at the thoracolumbar junction”. He submits there was disc desiccation at the thoracolumbar junction shown in the MRI scan dated 7 June 2017. He refers to a CT scan report dated 16 June 2017, in which the findings included “mild anterior wedging of T12 and L1” and a partly calcified protrusion at T12 with stenosis. The appellant refers to Dr Steel’s opinion being that the 2016 incident was “the event causing most of the damage”. The appellant submits there is a “clear inference”, as the pathology was “indicative of that conclusion”, that the damage at T12/L1 shown on the MRI scan and the CT scan was “more consistent with the damage having been caused on 6 June 2016 rather than on 7 May 2017”.[98]
[98] Appellant’s submissions, [53]–[55].
The appellant submits that the Member, in rejecting Dr Steel’s opinion, ignored the fact that the doctor’s opinion was based on the mechanism of injury and the pathology demonstrated by the scans. He submits this involved error, referring to Jamal v Nonabel Concrete Pty Limited.[99] The appellant submits the Member’s specific dealing with Dr Steel’s opinion “starts and finishes at [81]” of the reasons. The appellant submits that, having referred to Dr Steel’s conclusion that “most of the damage was done during the fall on 6/6/16”, the Member provided no “critique of the paragraph he has cited”, which included “detailed reasoning in support”.[100]
[99] [2018] NSWWCCPD 42, [120].
[100] Appellant’s submissions, [55]–[58].
Respondent’s submissions
The respondent submits that Ground No. 3 should fail for the same reason as Ground No. 1. The respondent refers to the history recorded by Dr Steel which included:
“Unfortunately, the most significant accident that he has had is the significant fall with the collapsing chair in June 2016. He has had ongoing symptoms in his legs since this time with aching, pins and needles in the feet and sharp pain up and down the legs, all consistent with a cauda equina syndrome.” (underlining added in respondent’s submissions)
The respondent submits this history is “clearly inconsistent” with the true history identified in the Member’s analysis. This analysis is not the subject of direct challenge. It is not open to the appellant to invite speculation about what the doctor’s opinion would have been, if furnished with an accurate or different history. It was not open to the appellant to invite speculation about what weight should be given to Dr Steel’s opinion based on pathology alone where the opinion was based on a number of factors, including history.[101]
[101] Respondent’s submissions, [14]–[16].
Appellant’s submissions in reply
The appellant submits Dr Steel identified both the pathology and the site of the discal damage as supporting his view that the June 2016 incident was likely to have caused most of the damage at T12/L1.[102]
[102] Appellant’s submissions in reply, [14]–[15].
Consideration
Dr Steel’s longer and more detailed report, which deals with causation, is dated 5 September 2017.[103] By way of history, that report referred to the motor accident in 2014, with a whiplash injury to the neck and low back pain. “He improved.” In relation to the June 2016 injury, Dr Steel recorded a history that “from this time onwards, his symptoms progressed”. The doctor recorded pain radiating down both legs, “[t]his has only occurred since the accident on 6/6/16”. The doctor recorded “[h]is symptoms progressed more recently when he had an episode where he slipped and his symptoms intensified” [the 2017 Ikea incident]. The doctor described the fall in June 2016 as “the most significant accident that he has had”, recording the appellant “has had ongoing symptoms in his legs since this time with aching, pins and needles in the feet and sharp pain up and down the legs, all consistent with cauda equina syndrome” (emphasis added). Dr Steel recorded a history that although symptoms intensified after the 2017 fall at Ikea, all of the symptoms were “present following his June 2016 injury”.
[103] ARD, pp 264–268.
Dr Steel concluded:
“Based on the history given to me, the mechanism of the injury and the pathology seen on the scans, it appears most likely to me that most of the damage was done during the fall on 6/6/16 at work.”
The report clearly indicates that the doctor’s view on causation was based on a combination of the three factors referred to above. The history accepted by the doctor, in reaching this conclusion, was of ongoing leg symptoms, consistent with cauda equina, since the June 2016 injury.
The appellant’s submissions refer to the mechanism of injury as a factor in Dr Steel’s view on causation. Dr Steel said it was possible that the motor vehicle accident “did cause the thoracic disc to herniated [sic, herniate] but there is no evidence of this”. He also said “It is possible that the disc has herniated as a result of all 3 episodes.” The doctor said the “motor vehicle accident is unlikely to have led to a thoracolumbar disc herniation”. The doctor also said “it would appear his spine has been impacted by an unusual traumatic force i.e. such as the fall”.[104]
[104] ARD, pp 266–267.
The consideration of this ground should be read in concert with the consideration above dealing with the first argument in Ground No. 1. I accept the respondent’s submission that Ground No. 3 should fail for the same reason. The Member concluded that the appellant could not discharge his onus on the causation issue, because of the lack of appropriate correlation between the facts assumed (in this instance by Dr Steel) and the proven history as found by the Member. This finding was open to the Member. This is sufficient to dispose of Ground No. 3.
There are some other matters raised in the submissions on this ground. The submissions referred to at [76] above raise an argument that the “chair incident” provided a “specific and unusual traumatic force”, which would potentially give rise to injury such as that suffered at the thoracolumbar junction. Dr Steel described the disc protrusion at T12/L1 as “very unusual”. Dr Steel said it was “possible” the motor vehicle accident in 2014 caused the thoracic disc to herniate but “there is no evidence of this”. He said the motor vehicle accident was “unlikely to have led to a thoracolumbar disc herniation”. Dr Steel said of the incidents:
“It is impossible to state which contributes more as the only thing we have to go on is his description of his symptoms and the mechanism of the injury.”[105]
[105] ARD, pp 266–267.
It follows that Dr Steel excluded none of the incidents from being possibly causative. He regarded the 2014 motor vehicle accident as unlikely to have led to such a disc herniation. Dr Steel nominated the employment injury on 6 June 2016 as “most likely to have caused most of the damage”. This was in circumstances where the doctor obtained a history that “all of his symptoms” were present following the 2016 injury, although intensified following the 2017 fall. This history was contrary to the Member’s analysis and findings regarding the true history, that led him to reject the probative force of the opinions from Drs Coughlan, Steel and Associate Professor Fearnside. The appellant on this appeal submits there was a “clear inference” that the damage at T12/L1 shown on the MRI scan and the CT scan were “more consistent with the damage having been caused on 6 June 2016 rather than on 7 May 2017”. This is further discussed in the consideration of Ground No. 5 below. I do not accept that any such inference can be drawn. The evidence as a whole does not support such an inference. In Flounders v Millar Ipp JA said:
“The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail.”[106]
[106] [2007] NSWCA 238, [35].
The appellant refers to Dr Steel as supporting the proposition that the pathology was indicative of the employment injury in June 2016 being the more likely cause of the injury. Dr Steel considered the disc pathology at T12/L1 was unlikely to have resulted from the motor vehicle accident in 2014. He did not support the proposition that the pathology was, of itself, more likely to result from the employment injury. His conclusion that most of the damage was done on 6 June 2016 was based on a combination of identified factors, being the history, the mechanism of injury and the pathology. The history he recorded was clearly one that lent considerable support to that conclusion, on the basis that all of the symptoms were present from the time of the 2016 injury. The Member, after a lengthy and detailed analysis of the evidence, found that history to be incorrect.
Ground No. 3 fails.
GROUND NO. 4 – REJECTING THE OPINION OF ASSOCIATE PROFESSOR FEARNSIDE
GROUND NO. 5 – ERROR REGARDING WHETHER THE T12/L1 LESION COULD HAVE BEEN CAUSED BY THE IKEA INCIDENT
Appellant’s submissions on Ground No. 4
The appellant’s submissions describe this alleged error as “similar” to those alleged in respect of Dr Coughlan and Dr Steel.
The appellant also alleges an additional factor in Ground No. 4. The additional factor overlaps with Ground No. 5 and it is convenient to deal with these two grounds together. The appellant refers to CT and MRI scans of the lumbar spine, both dated 16 June 2017.[107] The report of the CT scan by Dr Borelta dated 16 June 2017 included:
“There is mild anterior wedging of the T12 and L1 vertebral bodies with a maximum of 15% loss of vertebral body height at T12. This appears unchanged from previous imaging. There is a partly calcified right paracentral disc protrusion at the T12/L1 level resulting in severe right lateral recess stenosis and central canal stenosis to an AP diameter of around 7mm on CT.”
[107] ARD, pp 244 and 245.
The report of the MRI scan of Dr Black dated 16 June 2017 included:
“T12/L1: Disc desiccation with mild disc space narrowing. Large central and right posterolateral disc protrusion again demonstrated causing canal stenosis with compression of the distal cord and clumping of the roots of the cauda equina.
No foraminal nerve root compression seen.”
The appellant refers to a passage in Associate Professor Fearnside’s report which says:
“A CT scan of the thoracic spine and an MRI of the lumbar spine dated 16/6/17 showed part calcification of the T12/L1 disc which was central and right sided. The radiologist reported minor anterior wedging of the vertebrae at T12 and L1.”[108]
[108] ARD, p 392.
The appellant submits that the radiologist, reporting on the MRI scan, referred to disc desiccation but Associate Professor Fearnside was “clearly competent to note that that scan, as well as the CT Scan, additionally demonstrated calcification”.[109]
[109] Appellant’s submissions, [59]–[61].
The appellant refers to an MRI scan report of the radiologist, Dr Black, dated 9 June 2017.[110] That is a different report to the MRI scan report of Dr Black dated 16 June 2017, referred to above. The report dated 9 June 2017 included the note “No acute compression fracture seen”.[111] The appellant submits the absence of “an acute fracture or lesion” led Associate Professor Fearnside to reject the Ikea incident as having caused the pathology. The appellant submits that the Member’s reasons ignored “the critical evidence, perhaps most comprehensively put by Associate Professor Fearnside, that the pathology, in particular the desiccation and calcification, points to an injury on 6 June 2016 rather than on 7 May 2017”.[112]
[110] ARD, p 241.
[111] ARD, p 241.
[112] Appellant’s submissions, [62]–[63].
The appellant also repeats his submission that the mechanism of injury inclined each expert to the view that the 2016 incident was the most likely cause of the complaints that led to surgery.[113]
[113] Appellant’s submissions, [64].
Respondent’s submissions on Ground No. 4
The respondent refers to the history provided to Associate Professor Fearnside that “within 1 to 2 months of the incident on 6 June 2016, the [appellant] was experiencing significant effects on bladder function as well as pain in the left leg and paraesthesia into both legs. Those symptoms continued up until the fall at Ikea on 7 May 2017.” The respondent submits the appellant “specifically instructed” the doctor that there were “no new symptoms after the fall at Ikea”. It submits this history was “plainly not correct and provided an incorrect basis on which Associate Professor Fearnside based his opinion”.[114]
[114] Respondent’s submissions, [18].
The respondent otherwise repeats its submissions made in respect of Grounds Nos. 1 and 3.
Appellant’s submissions in reply on Ground No. 4
The appellant submits that the respondent, in its submissions, does not attempt to diminish the significance of Associate Professor Fearnside’s view that damage to the T12/L1 disc predated the Ikea incident.[115]
[115] Appellant’s submissions in reply, [19].
Appellant’s submissions on Ground No. 5
The appellant refers to the reasons at [98]:
“There are three other issues that I should briefly address. First, Mr Perry placed some emphasis on the nature of the fall of 6 June 2016. There is a good deal of medical evidence addressed to this. However, all of the doctors accept the possibility that the other incidents may have contributed to the [appellant’s] T12/L1 lesion. I do not understand them to opine that the fall the [appellant] sustained at IKEA could not have caused the lesion. Rather, the [appellant’s] account of his symptoms following the fall led to the conclusion that it should not be implicated in a significant way.”
The appellant submits the above misstates the views of the neurosurgeons. They considered each of the incidents may have contributed to the T12/L1 lesion, they did not consider the “Ikea incident could have caused the lesion” (emphasis in original). The appellant submits the scans showed either desiccation or calcification at the T12/L1 level. The appellant refers to Dr Coughlan’s reports, to Dr Carr dated 22 June 2017 and to Dr Zhao dated 29 June 2017, in which Dr Coughlan refers to calcification in the T12/L1 disc. The appellant submits that Associate Professor Fearnside was “specific” on the point. Associate Professor Fearnside, discussing Dr Smith’s opinion that the lesion at T12/L1 was probably caused in the fall at Ikea, said:
“The earliest radiological investigation of note was an MRI scan of 7/6/17, one month following the fall at Ikea. It would be my view that the appearance of the T12/L1 disc in that examination (7/6/17) would not be considered acute and would have occurred earlier than a month before.”[116]
[116] ARD, p 395.
The appellant submits the expert evidence was, “explicitly in the case of Associate Professor Fearnside and implicitly in the case of Dr Coughlan and Dr Steel, to the effect that the Ikea incident could not be the cause of the lesion.” The appellant submits that the finding at [98] of the reasons was contrary to the evidence.[117]
[117] Appellant’s submissions, [65]–[71].
Respondent’s submissions on Ground No. 5
The respondent submits the appellant’s submissions on Ground No. 5 are misconceived, the Member did not make a finding that the fall at Ikea could have caused the lesion at T12/L1. The respondent refers to the comments by Associate Professor Fearnside and Dr Coughlan that the pathology at the T12/L1 disc appeared to predate the fall at Ikea. This is insufficient, it submits, to support a finding that the cause of the onset of the appellant’s leg and bladder symptoms, on the probabilities, was the fall in June 2016. The appellant required expert opinion, meeting the requirements of Paric No 1, Paric No. 2 and Hancock, to support such a finding. The respondent submits “[t]hat was not done”.[118]
[118] Respondent’s submissions, [20]–[22].
Appellant’s submissions in reply on Ground No. 5
The appellant submits that the Member proceeded on the basis that the expert evidence allowed for the possibility that the Ikea incident could have caused the lesion. This was because he took all three experts as allowing, as a possibility, that the lesion requiring surgery was “occasioned by the Ikea incident, without a contribution from the chair incident”. The appellant confirms that this is its allegation of error. The appellant refers to the evidence of Associate Professor Fearnside and Dr Coughlan. The appellant submits that it was “not remotely open” to the Member to proceed on the basis that the Ikea incident caused the pathology. It was the view of “each [of] the experts” that the pathology predated the Ikea incident.[119]
[119] Appellant’s submissions in reply, [20]–[34].
Consideration of Grounds Nos. 4 and 5
The attacks on the decision made in Grounds Nos. 1 (the first argument) and 3, put briefly, proceeded on the basis that the opinions of Dr Coughlan and Dr Steel were not based only on the appellant’s history, found by the Member to be inaccurate. It was argued those opinions were based additionally on the doctors’ consideration of the mechanics of injury and the pathology. These were argued to not necessarily be dependent on the accuracy of the history given. That argument was rejected above, put briefly, on the basis that the doctor’s opinions on causation were based on a combination of not only these other matters but also the history, found to be inaccurate. Dr Coughlan and Dr Steel both recorded histories, of the symptomatology from time to time, that substantially inculpated the injury in June 2016. Both expressed their opinions to be based on a combination of these three matters, history, mechanics of injury and pathology (see [55] and [84] above).
The appellant’s submissions refer to radiological investigations, which are submitted to be inconsistent with the discal injury at T12/L1 occurring at the time of the incident at Ikea on 7 May 2017 (see [43], [78], [82] and [89] above). Neither Dr Coughlan nor Dr Steel say this. Radiological examinations and reports discussed by those doctors refer to appearances such as calcification, partial calcification and desiccation at T12/L1. The appellant submits that “Dr Coughlan also reported calcification of the injury that is inconsistent with having occurred in the fall at Ikea in two places in the evidence”. The two instances the appellant refers to are passages where the doctor refers to calcification.[120] Dr Coughlan and Dr Steel do not specifically comment on the extent to which such appearances are inconsistent with the occurrence of a discal injury at T12/L1 in the Ikea incident.
[120] Appellant’s submissions, [68]–[69].
A fact finder is entitled to make commonsense findings, provided these are “within the realm of common knowledge or experience”.[121] In Harrison and Siepen v Craig[122] Keating P, applying Strinic v Singh,[123] said:
“It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.”[124]
[121] Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720, 724, applied in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, [91].
[122] [2014] NSWWCCPD 48 (Craig).
[123] [2009] NSWCA 15; 74 NSWLR 419.
[124] Craig, [79].
It may be that calcification in a disc is inconsistent with relevant damage being caused by recent trauma. This is not something that is self-evident, it is not “within the realm of common knowledge or experience”. Proof of such a matter requires expert medical evidence.[125] It follows that references by Dr Coughlan and Dr Steel to matters such as calcification, in describing the appearances of radiological investigations, do not of themselves prove that the appearances were inconsistent with recent trauma. The appellant submits that the reports of Dr Coughlan and Dr Steel are to the same effect as those of Associate Professor Fearnside on this point. They are not. Drs Coughlan and Steel have not expressed the same view regarding the significance of what they observed in the radiology.
[125] Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, [66], Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1, [72].
Associate Professor Fearnside, in his report dated 5 November 2020, summarised and commented on other doctors’ reports that were made available to him, including Dr Smith. Associate Professor Fearnside described Dr Smith’s opinion on causation as “contrary to [the appellant’s] self-report of the symptoms [following the Ikea incident] being self-limiting”. That was, of course, based on the appellant’s history. The appellant’s evidence having been found to be unreliable, and the history inconsistent with the facts as proven, this part of Associate Professor Fearnside’s opinion was of little if any weight. Associate Professor Fearnside went on to comment on the radiology:
“The earliest radiological investigation of note was an MRI scan of 7/6/17, one month following the fall at Ikea. It would be my view that the appearance of the T12/L1 disc in that examination (7/6/17) would not be considered acute and would have occurred earlier than a month before.”[126]
[126] ARD, p 395.
The above was not dependent on the appellant’s credibility or the accuracy of his history. It was Associate Professor Fearnside’s opinion, on that discrete point, based on the appearances of the MRI scan carried out one month after the fall at Ikea. It was evidence that was potentially inconsistent with the disc injury at T12/L1 having occurred in the fall at Ikea. It was not inconsistent with the views of Drs Coughlan or Steel. Leaving questions of history to one side, the above was not inconsistent with there having been an aggravation injury in the Ikea incident, Associate Professor Fearnside having accepted that possibility in his report.
The appellant’s submissions in reply, before the Member, raised Associate Professor Fearnside’s opinion regarding the MRI scan dated 7 June 2017 and the doctor’s opinion that the appearances were inconsistent with recent acute injury. The appellant submitted that Dr Black, radiologist, reached the same conclusion about the MRI scan dated 16 June 2017, where Dr Black said[127] “there is no evidence for an acute compression injury”.[128] The evidence from Associate Professor Fearnside on this point was relevant to the causation issue. Having been raised, it should have been dealt with. The failure to do so involved error. This leaves the question of whether the error affected the result.[129]
[127] ARD, p 244.
[128] Appellant’s submissions in reply at first instance, [47].
[129] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, [7], Walshe v Prest [2005] NSWCA 333, [27], Leichhardt Municipal Council v Seatainers Terminals Pty Ltd (1981) 48 LGRA 409, 419, quoted and applied in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, [110].
There was an undoubted disc lesion at T12/L1. There was acceptable medical opinion from Dr Steel that there were “no factors such as pre-existing or degenerative conditions or lifestyle factors outside the workplace that have contributed to his ongoing symptoms”. Dr Coughlan shared this view.[130] Dr Steel said the appellant was “too young to have significant underlying disc degeneration”.[131] The opinions of Dr Steel and Dr Coughlan were acceptable expert evidence that it was unlikely the T12/L1 disc lesion was degenerative in nature.
[130] ARD, p 297.
[131] ARD, p 266.
The matter was conducted on the basis that the three competing causes of the lesion and symptoms at T12/L1 were the motor vehicle accident on 25 February 2014, the employment injury involving a fall from a chair on 6 June 2016 and the fall at Ikea on 7 May 2017. There was evidence from Associate Professor Fearnside, referred to at [111] above, that the appearance of T12/L1 in an MRI scan on 7 June 2017 was inconsistent with such appearances being the result of the fall at Ikea one month earlier, and was of longer standing. This opinion did not exclude the possibility of an aggravation injury in the Ikea fall. It was inconsistent with the lesion being initially caused by the fall at Ikea.
The appellant’s submissions, dealing with Ground No. 5, predominantly concern themselves with whether Associate Professor Fearnside’s opinion on the MRI scan precludes the possibility that the appellant injured his back in the Ikea incident. The appellant submits “[t]here was no evidence at all permitting Member Sweeney to conclude that the disc lesion could have been caused, as opposed to exacerbated, by the Ikea incident”.[132] He submits it was “a critical error of fact” for the Member “to conclude that it was open to him” to make this finding contrary to the evidence.
[132] Appellant’s submissions, [70].
As the respondent has submitted, the Member did not make a finding that an injury at T12/L1 occurred in the Ikea incident. The respondent carried no onus to establish that the relevant injury or aggravation occurred in the Ikea fall (or the 2014 motor vehicle accident for that matter). The appellant carried an onus to establish that the employment injury in June 2016 materially contributed to the lesion at T12/L1 and the resulting incapacity and need for medical treatment. The Member’s ultimate finding of fact was at [103] of the reasons:
“While the [appellant] undoubtedly suffered an injury to his low back on 4 June 2017 [sic, 6 June 2016], the evidence does not establish that it materially contributed to his T12/L1 lesion which has given rise to a need for surgery and an incapacity for work. He has not proven that the need for treatment and incapacity claimed in the Application results from the injury. The substantial body of medical opinion that supports the connection does so on a basis that is inconsistent with the evidence before the Commission and my findings. Regrettably, I make an award for the respondent.”
Notwithstanding Associate Professor Fearnside’s opinion referred to at [111] above, it cannot be concluded that the evidence compels a result in the appellant’s favour. Dr Steel described it as “possible” that the motor vehicle accident caused the thoracic disc to herniate but said there was “no evidence of this”.[133] He said it was possible “the disc has herniated as a result of all 3 episodes”. He said the motor vehicle accident was “unlikely to have led to a thoracolumbar disc herniation”. The doctor said: “It is impossible to state which contributes more as the only thing we have to go on is his description of his symptoms and the mechanism of injury”. Dr Steel said it “was likely … that most of the damage was done during the fall on 6/6/16 at work”. He specifically described this as “[b]ased on the history given to me, the mechanism of the injury and the pathology seen on the scans”.
[133] ARD, p 266.
Dr Steel’s recorded history of symptoms after the motor vehicle accident was of “pain in his neck and in his lower back but it was not associated with low back symptoms”. The doctor recorded that the appellant “… had low back pain. He improved.” The appellant’s history of back symptoms after the 2016 workplace injury was of “ongoing symptoms in his legs since this time with aching, pins and needles in the feet and sharp pain up and down the legs, all consistent with cauda equina syndrome”. The history recorded that all of his symptoms were “present following his June 2016 injury”.
Dr Coughlan, in his report dated 16 March 2018,[134] in which he dealt with causation, recorded a history:
“[The appellant] had a motor vehicle accident in 2014 in which he sustained a whiplash injury to his neck and subsequently suffered low back pain. There was no evidence of neurological deficits. He was managed with simple analgesia and improved with physiotherapy over a period of around three months.”
[134] ARD, pp 297–298.
Dr Coughlan recorded a history of back symptoms following the employment injury in 2016:
“His primary concern was ongoing lower back pain which radiated to both hips and legs (left worse than right), ranging from an aching sensation to sharp shooting pain in his legs. He also complained of frequent pins and needles in his legs, feet and groin. He was taking regular analgesia to relieve the pain, however this had limited benefit and problematic side effects (eg drownsiness, brain fog) which impaired his ability to function at work and drive. Furthermore, he was experiencing urinary frequency and incontinence that was causing significant disruption to daily activities and nighttime sleep. These symptoms had only occurred since the fall on 6/6/16.”
Dr Coughlan said:
“It is possible that the T12-L1 disc herniation was a result of all three injuries ie the MVA in 2014, the fall at work in June 2016, and the fall at Ikea in May 2017. In my opinion, based on the history provided to me, the mechanism of injury and the pathology demonstrated on MRI scans, it is likely that the fall from the chair at work in June 2016 was the major causative factor.”
Associate Professor Fearnside recorded the following history of symptoms following the motor vehicle accident on 25 February 2014:
“As a result of this accident he sustained injuries to his neck and low back. The main cause of continuing disability was his neck. He was treated with physiotherapy and later, an exercise physiologist. He had no time off work. With treatment, symptoms resolved about 95% over three months. He said that he had some minor stiffness in his neck from time to time with activity but the low back pain resolved completely. Thereafter, he was able to live and work normally and had normal activities of daily living. He said that over this time the family had moved house on two occasions and he had been able to lift and carry various items without any problem.”[135] (emphasis added)
[135] ARD, pp 391–392.
Associate Professor Fearnside recorded the following history of symptoms following the fall from a chair on 6 June 2016, prior to the fall at Ikea:
“1.6 Although his neck pain improved and the mild concussional symptoms resolved, within 1–2 months of the fall he experienced urgency of micturition and some episodes of urinary incontinence. There was also some loss of awareness of a need to pass urine. At the time he was unaware that disorders of the low back can cause urinary problems.
He also experienced stabbing pain in his left leg, mainly in the thigh and a burning pain in the thigh. Paraesthesia were [sic] present in both legs. There was impaired sensation on the lateral aspect of his left thigh.
1.7 He returned to Dr Carr who recommended physiotherapy. With the physiotherapy, his neck pain improved but there was no improvement in his low back pain. He required regular analgesics and relied on Panadol and Nurofen as well as the anti-inflammatory medication, meloxicam.
1.8 The department moved offices to the other end of the Central Business District. His treatment required him to continue consultations with Dr Carr and with the physiotherapist and as a result, it was not easy to see them regularly because he worked at the other end of the CBD.
1.9 His symptoms continued through November 2016 and he had an X-ray, a plain X-ray of the lumbar spine in January 2017.
By March 2017 the neck pain had largely resolved but his low back pain continued. The physiotherapy tended to aggravate the low back pain and he required regular analgesia, now relying on Panadeine Forte as well as Mobic (meloxicam).”
Associate Professor Fearnside obtained a history of the symptoms following the fall at Ikea:
“On questioning, [the appellant] confirmed that the effect of the fall on 7/5/17 was to aggravate his previous symptoms. There were no new symptoms.
He continued to work.
The exacerbation of pain continued for two weeks and he said that the symptoms then returned to those levels which he was experiencing prior to the fall and there was no change in the pattern of the pain.”[136]
[136] ARD, p 388.
The extent to which Associate Professor Fearnside’s opinion on causation was dependent on the appellant’s description of his symptoms is demonstrated by the doctor’s supplementary report dated 5 November 2020. That report, excluding formal parts, reads:
“With regard to your second letter of instruction of 2/11/19 regarding a ‘novus actus interveniens’ (assumed to be a new event) by [the appellant’s] account the fall at Ikea increased the pain he was already experiencing and the exacerbation lasted about two weeks. There were no new symptoms. [The appellant] told me that after two weeks the pain decreased to the levels he was experiencing prior to the fall on 7/5/17. This is confirmed in his Statement (paragraph 106–123). He stated that when he woke up the next day (8/5/17) his pain levels were pretty much the same as they had been before the fall at Ikea. Therefore, on balance, the fall at Ikea was a temporary exacerbation of his symptoms rather than a new injury.
Further, I am not of the view that his symptoms arose as a consequence of the motor vehicle accident on 25/2/14. He said that the injury was principally to his neck and any pain in his low back resolved completely. Following the motor vehicle accident, he did not experience any neurological symptoms or pain in his legs and the low back symptoms resolved completely over two or three months. Thereafter, he lived and worked normally.
The symptoms in his lumbar region are not the result of the motor vehicle accident on 5/2/14.”[137]
[137] ARD, p 398.
It is noteworthy that Associate Professor Fearnside did not rely, in the above discussion of causation, on his observation regarding the MRI dated 7 June 2017 (see [111] above). He relied on the history. The histories, on which the qualified doctors relied in forming their opinions, contrast with the facts as found by the Member. The Member’s discussion of the true factual background is summarised above at [20]–[23], [25], [31] and [33]–[38]. The approach taken by the Member, to the probative force of the reports from Dr Coughlan, Dr Steel and Associate Professor Fearnside was open on the evidence and was consistent with settled authority in decisions such as Paric No. 1, Paric No. 2 and Hancock. The observation by Associate Professor Fearnside, quoted at [111] above, does not necessarily lead to a conclusion that the injury on 6 June 2016 materially contributed to the disc pathology, and the associated requirement for surgery and incapacity at T12/L1.
The error identified at [113] above was not dispositive and did not constitute appealable error. Ground No. 5 fails. For the above reasons, and the reasons given above relating to Grounds No. 1 (the first argument) and 3, Ground No. 4 fails.
GROUND NO. 6 – THE FINDING THAT THE APPELLANT WAS NOT ALWAYS RELIABLE
Appellant’s submissions
The appellant refers to the Member’s acceptance, at [102] of the reasons, that discharge of the appellant’s onus involved proving the incident on 6 June 2016 made a material contribution to the condition requiring surgery. The appellant refers to the following aspects of the evidence that it is submitted would have tended to satisfy that onus:
(a) Dr Coughlan, Dr Steel and Associate Professor Fearnside assessed the relevant contribution of the incident of 6 June 2016 to be “the major causative factor”, the cause of “most of the damage” and the cause of the T12/L1 disc protrusion, respectively;
(b) there was sustained treatment for the injury from Dr Carr and the physiotherapist Mr Keane;
(c) the above doctors regarded the symptoms prior to the Ikea incident as consistent with pathology at T12/L1;
(d) a lumbosacral x-ray on 9 January 2017 showed pathology at L1, and
(e) the appellant’s evidence was that symptoms were worsening over the eleven months from 6 June 2016.
The appellant submits that notwithstanding the above, the Member found that the incident on 6 June 2016 had not made a material contribution to the requirement for surgery in 2017 and 2018. The appellant submits this “appears to stem” from the Member’s observation, in the reasons at [70], that differing accounts of the motor vehicle accident, for the purposes of the third party proceedings and the current proceedings, suggested the appellant was “a poor historian” and “not always reliable”. The appellant submits the Member failed to identify what parts of the appellant’s evidence were unreliable.[138]
[138] Appellant’s submissions, [72]–[75].
The appellant asks rhetorically whether the Member rejected a handwritten account of the incident of 6 June 2016 in the ARD at page 87, or the account recorded by Dr Coughlan. He says it “appears not” as the Member accepted the occurrence of injury on 6 June 2016. The appellant refers to a submission by the respondent that the appellant’s evidence was “carefully crafted” and should be rejected as “tailored for the purposes of material gain”. He submits the Member did not make such a finding. The appellant submits:
“In the absence of a finding that either the whole or specific parts of the appellant’s account of his symptoms should be rejected, there is no basis for Member Sweeney[’s] critical finding that the medical witnesses have proceeded on a false history. To conclude that they have so proceeded is, then, an error.”[139]
[139] Appellant’s submissions, [76]–[77].
The appellant refers to Dr Rowe’s report dated 14 July 2016.[140] Dr Rowe saw the appellant at the request of the appellant’s then solicitors, for assessment for the purposes of the third party claim arising from the 2014 motor vehicle accident. He examined the appellant on 14 July 2016, about five weeks after the employment injury on 6 June 2016. Dr Rowe recorded no history in his report of the injury on 6 June 2016. The appellant said that he told Dr Rowe about the injury on 6 June 2016 and various problems he had suffered from since. He said that Dr Rowe said “he would not include this information about the June 2016 accident in his medical report as it would make things complicated and confusing”.
[140] ARD, p 361.
The appellant said various of the difficulties (trouble walking, bending, looking after his daughter, doing dishes, working in the garden) were problems he associated with the employment injury rather than the motor vehicle accident and he told Dr Rowe this. The appellant submits Dr Rowe’s report, the appellant’s explanation, and particulars supplied by the appellant’s former solicitors (which did not mention the 6 June 2016 injury) were put into evidence by the appellant.[141]
[141] Appellant’s submissions, [78]–[80].
The appellant refers to the respondent’s submission that the appellant’s evidence was “tainted by his attempts to tailor his evidence to maximise his entitlement to compensation both in relation to the motor vehicle accident and also in the present proceedings”. The appellant says that “none of this was put to the appellant” and submits that “it should have been”. It refers to Cruceanu v Vix Technology (Aust) Ltd.[142] It submits the Member did not draw the conclusion for which the respondent contended and failure to deal with this was “a further error”. The appellant submits the Member did not draw the conclusion that he, the appellant, was “the person described by the respondent’s counsel”. He submits that for the Member to then find “that the evidence of the expert witnesses lacked any probative value on the critical issue was also an error”.[143]
[142] [2020] NSWCA 203 (Cruceanu), per Basten JA, [40].
[143] Appellant’s submissions, [83]–[85].
Respondent’s submissions
The respondent submits the Member carefully analysed the evidence and identified “inconsistencies regarding the history of the nature and onset of symptoms”. The respondent refers to the appellant’s criticism of the Member for not identifying which aspects of the evidence he rejected and which he accepted. It submits the reasons are to be read as a whole. It is not necessary for a member to refer to every piece of evidence. The respondent refers to Brannigan v Elbon Consulting Services Pty Ltd and the cases there cited.[144] The respondent refers to the submission that the Member was affected by the respondent’s failure to seek leave to cross-examine and to put to the appellant that he had sought to tailor his evidence to support his claim. The respondent refers to the appellant’s statement that the respondent’s invitation to draw certain conclusions was not accepted by the Member. The respondent submits it is difficult to see how the Member fell into error in those circumstances.[145]
[144] [2021] NSWPICPD 27, [58].
[145] Respondent’s submissions, [24]–[28].
The respondent refers to the appellant’s reliance on Cruceanu. It says that case involved a worker who reported symptoms to his general practitioner some weeks prior to the alleged injury. The worker stated that the prior symptoms were not like those that he experienced after the injury. The comments of Basten JA about a need for cross-examination were in that context. In the current matter, the inconsistencies and discrepancies emerge from the appellant’s statements and histories recorded by doctors in the appellant’s own case. The respondent submits it was not a matter for the respondent “to seek to cross-examine the appellant about inconsistencies in his own case”.[146]
[146] Respondent’s submissions, [29]–[31].
Appellant’s submissions in reply
The appellant submits the expert evidence supported his case, and his statements were consistent with the histories relied on by the experts. It submits the Member was not at liberty to reject the expert evidence without an explicit rejection of the appellant’s statement. The appellant submits the Member did not make findings rejecting the appellant’s evidence on the following issues:
(a) that he told Dr Rowe about the employment injury on 6 June 2016;
(b) that he started to notice pins and needles in the legs and bladder leakage from “around August/September 2016”, at first not thinking much of this due to his increased lower back pain which affected his functioning;
(c) that there was a gradual onset of altered sensation in the left foot;
(d) that during the period from 6 June 2016 to 7 May 2017 there was a gradual worsening of the appellant’s symptoms;[147]
(e) that there were severe and continuing symptoms following the incident on 6 June 2016, and
(f) that the appellant required medications and coping strategies to continue, with increasing difficulty, to meet the demands of his employment.[148]
[147] Appellant’s submissions in reply, [35]–[37].
[148] Appellant’s submissions in reply, [40].
The appellant submits that if the experts proceeded on a history that was “grossly inconsistent” (the Member’s term in the reasons at [97]) then the appellant’s statement “must have been fabricated”. It is submitted that notwithstanding this, the Member did not accept the respondent’s submission to this effect.[149] The appellant submits that, if the above evidence was to be rejected, it should have been challenged or explicitly rejected.
[149] Appellant’s submissions in reply, [38].
Consideration
The appellant refers to the reasons at [70], where the Member said:
“In my opinion the differing accounts of the impact of the motor vehicle accident for the purposes of the CTP claim and in these proceedings suggest, at least, that the [appellant] is a poor historian and that his account of the sequelae of the various injuries is not always reliable. There are other aspects of the evidence which support that view.”
The above followed a discussion at [61] to [69] of the reasons, going to the ‘credit’ issue on which the respondent had addressed. This related to Dr Rowe’s report (prepared for use in the third party case) and the failure of that report to refer to the employment injury on 6 June 2016, notwithstanding that Dr Rowe’s examination took place on 14 July 2016. The Member referred to the appellant’s explanation that he told Dr Rowe of the incident on 6 June 2016 and “Dr Rowe chose to omit it from his report”. The Member referred to the letter from the appellant’s then solicitors to Dr Rowe dated 12 October 2016 in which it was said that the appellant “reviewed the report in its current form and has provided some comments”. The matters raised by way of comment went to restrictions in the appellant’s activities resulting from the motor vehicle accident, including “household duties”, “picking up and caring for his daughter”, his sex life, his “home office set-up” aggravating his back, and a “significant reduction” in “pre-injury leisure activities such as gardening, walking and hiking”. It was said the appellant had been “unable to walk, hike or garden for any extended period of time due to his shoulder and low back pain”.
“There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied in the giving of that evidence.”[150] The rejection of evidence does not amount to a conclusion that a witness knowingly gave false evidence.[151] Medical evidence, once admitted, is admitted for all purposes and can be used in support of credit findings.[152] It is necessary that the reasons be read as a whole.[153] The passage at [70] of the reasons should be read together with the material discussed at [61] to [69] of the reasons.
[150] Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256.
[151] Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444, [69].
[152] Johnstone v State of New South Wales [2010] NSWCA 70, [104].
[153] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The appellant refers to various matters on which it is submitted the Member did not make findings. He is said to have failed to make a finding regarding acceptance of a handwritten statement with diagrams of what happened on 6 June 2016. He is said to have failed to respond to the respondent’s submission that the appellant’s evidence was “carefully crafted”. He submits the Member accepted the injury occurred on 6 June 2016 and did not make a finding that his evidence was carefully crafted (each of these conclusions was in the appellant’s favour, the occurrence of injury on 6 June 2016 was not disputed). The appellant submits that, in the absence of a finding that the whole or specific parts of the appellant’s account of his symptoms should be rejected, there is no basis for a finding that the medical witnesses proceeded on a false history.[154]
[154] Appellant’s submissions, [75]–[77].
The Member, in his analysis at [61] to [69] of the reasons, pointed out inconsistencies, between accounts of symptoms taken from treating records and documents used in the third party proceedings, compared with the history contained in statements used in these proceedings. This led to the identification at [70] of “differing accounts” and the observation that the appellant was “not always reliable”. The Member concluded that it was “necessary to carefully consider his evidence in the context of the contemporaneous medical and other evidence”. In the reasons at [68], the Member referred to the letter forwarded by the appellant’s then solicitors to Dr Rowe containing “comments”. The Member said there was “no doubt that the [appellant] instructed his own solicitors in October 2016 to inform Dr Rowe that he had ongoing back pain which interfered with many facets of his existence which he attributed to the motor vehicle accident.” The Member said that if the appellant’s statements in the current proceedings were correct, he was “content to allow his CTP claim to be resolved on the false basis that his low back symptoms had not significantly resolved with the passage of time but rather had progressed over a period of several years and significantly interfered with his activities of daily living” (see [23] above).
The Member referred to other specific inconsistencies, between the appellant’s statement relied on in these proceedings and the histories relied upon by “the neurosurgeons”, compared with other sources. The Sydney Physiotherapy Solutions notes recorded ongoing back symptoms since the motor vehicle accident aggravated by lawnmowing, doing lots of dishes and sex. The Member said this was consistent with the history of the state of the appellant’s back recorded by Dr Rowe in July 2016.[155]
[155] Reasons, [86]–[87].
The notes of that physiotherapy practice on 17 May 2017 referred to the fall at Ikea and the subsequent symptoms (see the reasons at [88]). The physiotherapist’s notes for 22 May 2017 and 5 June 2017 included reference to pins and needles in both legs, getting worse, and an ambulance being called to his home when he collapsed. There was also a two week history of urinary problems (see the reasons at [89] to [90]). The record from the ambulance attendance on 4 June 2017 is described at [34] to [35] above. It included “intense 10/10 lower lumbar pain with pins and needles down both legs” and slight incontinence “over the past few days”. The Member said the records “are only consistent with a significant worsening of [the appellant’s] back condition”.[156]
[156] Reasons, [94].
The Member went on to say that “the discrepancies between the clinical record and the [appellant’s] evidence” fortified his “previously expressed opinion of the reliability of [the appellant’s] evidence”. He described “the facts proven” as inconsistent with the “histories recorded by [the appellant’s] neurosurgeons” and “grossly inconsistent with the assumed histories of the doctors who support the [appellant’s] case”.[157]
[157] Reasons, [97].
The Member’s findings at [70] were expressed with restraint, consistent with the references referred to at [141] above dealing with credit findings. The Member’s ultimate finding of fact, at [103] of the reasons, is quoted at [41] above. In Onassis and Calogeropoulos v Vergottis Lord Pearce said:
“Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."[158]
[158] [1968] 2 Lloyds Rep 403 (Onassis), 431.
The above passage was quoted without criticism by the Court of Appeal (Allsop P, Meagher and Ward JJA agreeing) in Withyman v State of New South Wales.[159]
[159] [2013] NSWCA 10, [65].
There were inconsistencies between statements made at around the time when events occurred and in contemporaneous medical evidence, as opposed to later summations of events in statements prepared for the proceedings or for doctors qualified for the proceedings. It is clear, when the reasons are read as a whole, that the Member preferred the evidence contained in contemporary documents rather than conflicting accounts prepared later for use in the proceedings. This is generally consistent with the discussion in Onassis. The evidence which the Member accepted, and why, is clear enough from a fair reading of his reasons as a whole. I note the appellant’s submission referred to at [138] above, that evidence must have been a fabrication if it was grossly inconsistent with proven facts, is not consistent with the passage from Onassis referred to above. This is sufficient to deal with the bulk of the arguments raised by the appellant under this ground.
The appellant raises an additional point. He refers to the respondent’s submission at first instance that his evidence was tainted by attempts to tailor his evidence to maximise his entitlement to compensation. He submits this should have been put to the appellant. The respondent makes the point that the Member did not accept the respondent’s submission at first instance to that effect.
There is no suggestion that either party sought to adduce oral evidence or to cross-examine. It is difficult to see that the Member erred in failing to make orders of that nature when no such applications were made. In Brambles Industries Ltd v Bell McColl JA said:
“… a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it.”[160]
[160] [2010] NSWCA 162, [30].
The respondent makes the point that the inconsistencies and discrepancies emerge from the appellant’s statements and histories recorded by doctors in the appellant’s own case. In New South Wales Police Force v Winter[161] Campbell JA (Giles JA and Handley AJA agreeing), after reviewing a number of authorities, dealt with procedural fairness in the context of the former Workers Compensation Commission of New South Wales, in which the statutory provisions regarding the calling of evidence[162] were similar to those now found in the 2020 Act:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.”[163]
[161] [2011] NSWCA 330 (Winter).
[162] See generally Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358.
[163] Winter, [81].
The appellant was aware of the evidence on which the allegations of inconsistency were based, these being part of the evidence in the appellant’s own case. The respondent’s written submissions were lodged on 16 June 2021 and the appellant’s submissions in reply were lodged on 21 June 2021 (see [8] above). By the time the appellant lodged his written submissions in reply, he was in possession of the respondent’s submissions in their entirety and all of the evidence. I will not attempt to set the respondent’s submissions out at length. Issues raised in those submissions included:
(a) the appellant did not suffer any neurological signs of symptoms in his lower limbs or any bladder dysfunction related to pathology in his lumbar spine prior to the fall on 7 May 2017;
(b) the onset of such symptoms was caused by the fall on 7 May 2017, which was a novus actus interveniens;[164]
(c) the main issue was whether the pathology at T12/L1, and the onset of neurological symptoms, was causally related to the incident in June 2016;
(d) the objective medical evidence does not support the conclusion reached by the appellant’s doctors that the cause of the appellant’s neurological symptoms was the incident in June 2016;
(e) the medical opinions in the appellant’s case are based on an inaccurate history of the onset of neurological symptoms; its inaccuracy is demonstrated by contemporary medical records, and
(f) it is implicit that the respondent challenges the appellant’s statement evidence.[165]
[164] Respondent submissions at first instance, [11].
[165] Respondent’s submissions at first instance, [12]–[14].
These issues were expanded on in the 17 pages of the respondent’s detailed written submissions. These included reference to the appellant’s statement as “carefully tailored to implicate the fall in the incident at work as the major contributor to the major effects on his back and to the symptoms in [the] legs and the bladder symptoms indicative of the pathology in the [appellant’s] lumbar spine identified by the doctors as causative of his disability and his need for surgery”.[166] I cannot see a basis on which there was a breach of the rules of procedural fairness in the circumstances. This aspect of the submissions in support of Ground No. 6 is without merit.
[166] Respondent’s submissions at first instance, [36].
Ground No. 6 fails.
CONCLUSION
All of the grounds have failed. The appeal is unsuccessful.
DECISION
The Certificate of Determination dated 16 July 2021 is confirmed.
Michael Snell
DEPUTY PRESIDENT
17 May 2022
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