Ali v Form Group NSW Pty Limited
[2020] NSWWCCPD 64
•3 November 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Ali v Form Group NSW Pty Limited [2020] NSWWCCPD 64 |
| APPELLANT: | Ali Ali |
| RESPONDENT: | Form Group NSW Pty Limited |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-2074/20 |
| ARBITRATOR: | Mr P Sweeney |
| DATE OF ARBITRATOR’S DECISION: | 29 June 2020 |
| DATE OF APPEAL DECISION: | 3 November 2020 |
| SUBJECT MATTER OF DECISION: | Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 discussed and applied; failure to cross examine – rejection of evidence which is not the subject of cross-examination; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied; application of common knowledge and experience – Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr G Schipp, counsel | |
| Prominent Lawyers | |
| Respondent: | |
| Mr H Halligan, counsel | |
| Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 29 June 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
Mr Ali Ali (the appellant) was employed by Form Group NSW Pty Limited (the respondent) as a formworker. On 21 June 2017, the appellant was preparing a timber cast in which concrete was to be poured. While performing that task, the appellant was standing on timber suspended between steel frames about 1.8 metres above the 15th floor of the building. It was a very windy day, and the appellant lost his footing and fell to the floor of that level of the building. The appellant was rescued by NSW Fire and Rescue and taken to St George Hospital by ambulance. The appellant was treated for a fractured right tibia, which included surgical insertion of an intramedullary nail, and he was discharged into the care of his general practitioner, Dr Khalid El Skafi on 24 June 2017. The respondent accepted liability for the injury.
On 5 March 2019, the appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 28% whole person impairment (WPI), which comprised of assessments of the appellant’s cervical spine, lumbar spine, right upper extremity, right knee and right foot. The respondent rejected the offer and made a counter offer based on 14% WPI. The respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for the lumbar spine. The respondent asserted that the lumbar spine was not injured in the incident on 21 June 2017.
The appellant commenced proceedings in the Commission, alleging that in the incident on 21 June 2017, he injured his cervical spine, lumbar spine, right upper extremity and right lower extremity. He claimed $52,250 as lump sum compensation pursuant to s 66 in respect of 28% WPI, which included right leg scarring. The respondent maintained its dispute that the lumbar spine was not injured in the incident on 21 June 2017.
The matter proceeded to arbitration before Arbitrator Sweeney, who issued an oral decision in which he concluded that he was not satisfied that the appellant suffered an injury to the lumbar spine in that incident and entered an award in favour of the respondent on that issue. The balance of the appellant’s claim was referred to an Approved Medical Specialist for assessment of the accepted injuries.
The appellant appeals the Arbitrator’s decision that the appellant’s lumbar spine was not injured in the work-related incident.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. There is also no dispute between the parties that the Arbitrator’s decision is not interlocutory in nature, and that leave to appeal is not required in accordance with s 352(3A) of the 1998 Act.
THE EVIDENCE
The appellant’s statement evidence
The appellant relied on two statements made by him. The first statement was dated 15 April 2020.[1] The appellant said that he commenced work with the respondent as a formworker in 2016. He described the mechanism of injury, which he said involved a fall of 1.8 metres. The appellant advised that NSW Fire and Rescue lowered him by crane to the bottom floor of the building site and he was then taken by ambulance to St George Hospital. The appellant said that he underwent surgery to address the fracture of the right tibia and was discharged into the care of his treating general practitioner, Dr El Skafi. The appellant listed a number of medical practitioners who had treated him for his injuries. In this statement, the appellant did not provide any information as to the treatment provided in St George Hospital other than the right leg surgery, or in relation to what injuries were suffered in the incident.
[1] Application to Resolve a Dispute (ARD), pp 489–491.
The appellant filed a supplementary statement dared 22 May 2020, annexed to an Application to Admit Late Documents (AALD).[2] The appellant stated that the treatment providers in the Emergency Department of St George Hospital (the hospital) were aware of all of his injuries, including the injury to his lower back. The appellant said he advised Dr Anthony Keeley, orthopaedic surgeon, and Dr Jonathan Herald, orthopaedic surgeon, about his back symptoms. He said that Dr Herald and Mr Roger Berbari, physiotherapist, provided physiotherapy for his injuries, including his back. He added that he also received treatment from a Dr Phillip Monaghan.
[2] Statement dated 22 May 2020, AALD dated 25 May 2020, pp 102–104.
The appellant disclosed that he was involved in a motor vehicle accident on 18 August 2017 and asserted that he was not injured in that accident and it had no impact on his work-related injuries. The appellant said:
“Following the accident of 21 June 2017, I continued reporting about my ongoing pain from my work-related injury to my family doctor, Dr Khalid El Skafi. During the same appointment about my work-related injuries, I recall telling the doctor about my motor vehicle accident.”[3]
[3] Statement dated 22 May 2020, AALD, pp 103–104.
The St George Hospital medical records
The hospital medical records were also annexed to the AALD.[4] A copy of the NSW Ambulance record was included.[5] The only injury recorded was the right lower limb fracture. The appellant was reported to be in an alert state and was treated with morphine and ketamine injections.
[4] AALD, pp 5–101.
[5] AALD, pp 19–23.
The initial progress note made at 4.42 pm on the day of the injury recorded that the appellant had fallen 2–3 metres on a construction site, landing on his feet on concrete. Right lower limb pain with an “open right tib/fib fracture” was noted and it was also noted that the ambulance officers had administered morphine and ketamine and attached a “pelvic binder.” A primary survey was performed and “no midline spine tenderness”[6] was recorded. The treatment plan indicated that a secondary survey would be performed once the appellant was more alert and an x-ray of the lumbar spine, right knee, tibia, fibula and ankle was to be performed. A secondary survey was performed following the radiological examinations when the appellant was said to be “more alert.” The examiner recorded that there was no tenderness to the head, neck, abdomen, chest wall or pelvis. The left lower limb power was intact and there was no evidence of injury.[7]
[6] AALD, p 13.
[7] AALD, pp 14–15.
The appellant was examined by Dr Alex Tzannes on admission to the hospital that evening. Dr Tzannes recorded the following observations:
“witnessed fall 1.5-2m. no head strike. no LOC. since admission c/o isolated pain right tib fib at site of open fracture.
no pelvic tenderness
T/L spine non tender; L spine screening films NAD
no chest wall tenderness
c spine no c/o pain, FROM and no midline tenderness. despite potentially distracting injury, and vomiting post ketamine, MOI not consistent with head/neck injury so considered cleared clinically.
abdo soft and non tender, FAST neative, HD remains stable
during ED stay sedated with further ketamine for reduction and POP of right LL.
PLAN: admit trauma and ortho, NBM from 12MN
tertiary mane and ortho TOC
Iimb obs; at risk for compartment syndrome
Ab’s
pelvic binder removedcan sit up”.[8]
[8] ARD, p 27.
The following further entries in the hospital notes are relevant:
(a) a note at 5.27 pm on 21 June 2017 recorded that a lumbar roll would be performed until the lumbar spine was cleared.[9]
(b) on 22 June 2017 at 9.40 am, pain was noted in the leg, with no pain elsewhere but paraesthesia was noted between two toes (not identified) in the left foot. Morphine was administered;[10]
(c) at 11.30 am on the same day, the appellant denied lower limb pain but reported “ongoing back pain, 2/10 severity;”[11]
(d) the appellant complained of reduced sensation in the right foot at 9 pm on 22 June 2017;[12]
(e) on 23 June 2017, mild sacral tenderness was noted;[13]
[9] AALD, p 30.
[10] AALD, p 34.
[11] AALD, p 35.
[12] AALD, p 36.
[13] AALD, p 37.
The x-ray of the lumbar spine performed on 21 June 2017 reported the lumbar spine as normal. [14]
[14] AALD, p 100.
Dr Anthony Keeley, orthopaedic surgeon
Dr Keeley performed the surgery to the right leg on 22 June 2017. The appellant thereafter continued to consult Dr Keeley for ongoing management of his right leg injury. Dr Keeley provided numerous reports directed to both the respondent and Dr El Skafi covering the period from 5 July 2017 to 13 June 2018.[15] There was no reference to the appellant complaining of back pain in any of those reports.
[15] ARD, pp 121–135.
The clinical notes of Dr El Skafi, general practitioner
The United Medical Centre medical records, largely compiled by Dr El Skafi, were in evidence.[16] The clinical notes commenced from 2011.
[16] ARD, pp 146–325.
Relevantly, on 21 March 2017 and on 28 March 2017, the appellant attended Dr El Skafi complaining of lower back pain. Dr El Skafi referred the appellant for an x-ray of the lower back.[17] On 23 March 2017, Dr El Skafi reviewed the appellant and recorded that the x-rays reported that there was no abnormality, and the appellant was pain free, with no tenderness over the lower back and the appellant had full range of movement.[18]
[17] ARD, p 168.
[18] ARD, p 167.
The appellant next attended Dr El Skafi on 26 June 2017, following his discharge from St George Hospital. Dr El Skafi noted the work-related incident and recorded the injury as a fracture of the right tibia. Dr El Skafi drew up a management plan, issued a WorkCover certificate of capacity and prescribed panadeine forte tablets.[19]
[19] ARD, pp 166–167.
On 12 July 2017, the appellant complained of the onset of neck pain as well as continued pain in the right tibia and fibula. Dr El Skafi referred the appellant for a CT scan of the cervical spine.[20] The appellant attended Dr El Skafi again on 15 August 2017, complaining of neck pain and right leg pain. The neck pain was reported to have started after the work-related fall.[21]
[20] ARD, p 164.
[21] ARD, p 161.
On 19 August 2017, Dr El Skafi recorded that, on the evening prior to the consultation, the appellant was travelling in a car when the car was hit by a vehicle from behind. Dr El Skafi took the following further history:
“after the accident Ali was [shaking] and felt worsening pain in the neck and lower back area, he is [already] on 5m endone qid for a recent workcover injury.
examination: [diffuse] tenderness over the lower cervical thoracic and lumbar spine with pain also over the paravertebral muscles around the spine, limitation in ROM of the cervical [thoracic] and lumbar spine.”[22]
[22] ARD, pp 160–161.
The appellant attended Dr El Skafi on a number of further occasions. On 4 September 2017, Dr El Skafi noted worsening cervical, thoracic and lumbar pain since the motor vehicle accident.[23] The balance of Dr El Skafi’s notes do not assist with the issues on appeal, except that there was no reference to back symptoms other than as recorded above, and no reference to the lumbar spine being involved in the work-related injury.
[23] ARD, p 159.
Dr Namuk Al Khateeb, pain management specialist
Dr El Skafi referred the appellant to Dr Al Khateeb, who consulted with the appellant on 14 July 2017. Dr Al Khateeb reported to Dr El Skafi on 21 July 2017 and the contents of that report was reproduced in Dr El Skafi’s notes.[24] Dr Al Khateeb noted the history of injury to the right leg, examined the appellant, and revised the appellant’s pain medication. There was no reference at all to any complaint by the appellant of low back pain.
[24] ARD, pp 163–164.
Dr Jonathon Herald, orthopaedic surgeon
Dr El Skafi also referred the appellant to Dr Jonathan Herald, orthopaedic surgeon, in relation to the right shoulder symptoms. Dr Herald treated the appellant for those symptoms between 12 March 2018 and 11 March 2019. Dr Herald made no mention of any low back complaints in the plethora of reports sent to Dr El Skafi during that period.[25]
[25] ARD, pp 329–341.
Dr Sachin Shetty, pain management specialist
The appellant was referred to Dr Sachin Shetty, pain management specialist, who reported to Dr El Skafi on 9 May 2018 and on 28 August 2018.[26] The history recorded by Dr Shetty was that the appellant presented complaining of persistent neck, right shoulder, right knee and leg pain following the fall on 21 June 2017. Dr Shetty took a detailed history of the onset of symptoms, noted the appellant’s functional limitations, and examined the appellant. There was no reference at all to the appellant suffering from back symptoms or having injured his lower back in the work-related injury.
[26] ARD, pp 345–352.
Dr Raoul Pope, orthopaedic surgeon
The appellant was also referred to Dr Raoul Pope, neurosurgeon, in relation to his shoulder and neck pain. Dr Pope reported to Dr El Skafi on 5 February 2019[27] and on 20 February 2019.[28] There was no reference in those reports to any complaint of back pain or the appellant having injured his low back in the fall on 21 June 2017.
[27] ARD, pp 359–360.
[28] ARD, pp 362–363.
Dr Uthum Dias, occupational physician
Dr Dias was asked to examine the appellant and provide a medico-legal opinion in relation to the appellant’s claim. Dr Dias reported on 27 February 2019.[29] He indicated that he had previously examined the appellant and had provided a medical report dated 5 July 2018. That report was not in evidence.
[29] ARD, pp 368–387.
Dr Dias was asked to assess the appellant’s cervical spine, lumbar spine, right shoulder, right knee, right leg and right ankle. In respect of the lumbar spine examination, Dr Dias noted tenderness in the paraspinal musculature with moderate muscle guarding but no evidence of muscular spasm. There were some limitations on flexion and extension caused by pain and discomfort. Dr Dias found no objective clinical evidence of lumbar radiculopathy. Dr Dias provided a diagnosis of chronic, non-specific lumbar pain secondary to muscular strain. Dr Dias was of the view that there was a direct causal relationship to the work-related injury in respect of the various parts of the appellant’s body, including the lumbar spine. Dr Dias provided an assessment of the appellant’s WPI in respect of all of those body parts, arriving at a total assessment of 28% WPI.
Dr Dias was asked to provide a supplementary report, addressing further questions from the appellant’s legal representatives. Dr Dias responded on 25 November 2019.[30] Relevantly, Dr Dias reproduced the following question which had been put to him:
“Mr Ali has previously instructed that he felt developing back pain approximately 12 months post-accident due to altered walking gait as a result of his right tibia and fibular fractures.
We would be grateful to receive your supplementary report commenting on the above regarding Mr Ali’s lumbar spine and specifying whether the above instructions alter your opinion as to whether Mr Ali has suffered a frank injury to his lower back or consequential injury as a result of the frank injuries to his right leg.”[31]
[30] ARD, pp 485–488.
[31] ARD, p 487.
Dr Dias responded:
“Mr Ali had reported that he had developed back pain from the time of the accident, which had persisted over the course of the proceeding [sic, preceding] 12 and a half months up to my assessment of him on 5th July 2018 … Therefore, based on my history from Mr Ali himself on 5th July 2018, it is my opinion that Mr Ali did sustain a frank injury to his lower back ...”.[32]
[32] ARD, pp 487–488.
Dr Richard Powell, orthopaedic surgeon
The respondent qualified Dr Richard Powell to provide a medico-legal assessment of the appellant’s injuries. Dr Powell reported to the respondent on 16 May 2019.[33] He recorded a largely consistent history of the injury on 21 June 2017 and the treatment provided in the hospital. Dr Powell noted that, in addition to the fracture of the right tibia and fibula, the appellant also complained of the development of symptoms involving the cervical spine, right shoulder, right knee, right ankle and lower back.
[33] Reply to Application to Resolve a Dispute (Reply), pp 5–17.
In respect of the lower back condition, Dr Powell recorded that the symptoms only became apparent in August 2018 and developed without a precipitating incident. Dr Powell noted that the appellant attended five physiotherapy sessions following which there was minor improvement. Dr Powell further noted that there had been no investigations or specialist review of the appellant’s lumbar symptoms.
Dr Powell recorded the history of the motor vehicle accident on 18 August 2017 and advised that the appellant denied having suffered any injuries in that accident. Dr Powell examined the appellant and provided a diagnosis in respect of the right tibia and fibula, the cervical spine and the right shoulder, which he considered all resulted from the incident on 21 June 2017. Dr Powell observed that there was insufficient evidence to conclude that the low back symptoms were directly related to the work-related injury. He observed that the symptoms developed well after the work-related injury, and there was no compelling evidence that the condition arose in the incident on 21 June 2017 or developed as a consequence of the injuries sustained in that incident. Dr Powell also considered it unlikely that the motor vehicle accident would have caused any significant injury to the cervical spine and low back.
Dr Powell did not assess the WPI of the appellant’s lumbar spine.
Dr Powell was asked by the respondent to provide a supplementary opinion addressing matters that are not relevant to this appeal. A summary of the supplementary report dated 11 June 2019[34] is therefore not necessary.
[34] Reply, pp 19–20.
Other documentation
The respondent’s incident report form simply noted that the appellant had injured his right leg in the incident.[35]
[35] ARD, p 1.
A number of WorkCover certificates of capacity issued by Dr El Skafi were annexed to the ARD.[36] The first inclusion of the low back as part of the diagnosis of the work-related injury was in the certificate dated 30 July 2018.[37]
[36] ARD, pp 388–476.
[37] ARD, pp 443–445.
THE ARBITRATOR’S REASONS
The Arbitrator delivered oral reasons for his determination by telephone on 26 June 2020.
The Arbitrator noted that the only matter in dispute was whether the appellant had injured his lumbar spine in the incident on 21 June 2017. He identified the contemporaneous material relied upon by the parties, which consisted of the clinical notes recorded by Dr El Skafi, the appellant’s general practitioner, and the hospital notes.
The Arbitrator further noted that the respondent’s notice issued pursuant to s 78 of the 1998 Act was primarily based upon the opinion of Dr Powell. The Arbitrator observed that the history recorded by Dr Powell was that the appellant’s low back symptoms appeared without a precipitating incident in August 2018. The Arbitrator referred to the appellant’s submission that it was unclear from where Dr Powell obtained that history.
The Arbitrator turned to the appellant’s statement evidence. He observed that in the appellant’s first statement, he did not refer to the alleged injury to the lumbar spine. The Arbitrator referred to the appellant’s supplementary statement, and he recorded excerpts from the statement in which the appellant said that he injured his lumbar spine in the incident on 21 June 2017, was involved in a subsequent motor vehicle accident, but denied suffering any injuries in the motor vehicle accident. The Arbitrator observed that the denial was inconsistent with the notes of Dr El Skafi.
The Arbitrator referred to the entries in the hospital clinical notes, which included:
(a) an entry taken from the notes of the NSW Ambulance Service, which made no reference to an injury to the appellant’s back;
(b) an entry by Dr Alex Tzannes, the Senior Medical Officer, who recorded that the appellant was suffering “isolated” pain in right tibia at the site of the open fracture, there was no tenderness of the pelvis or “T/L” spine, and the appellant was referred for lumbar spine screening;
(c) a note on 21 June 2017 that the appellant had no pain other than the leg pain but complained of paraesthesia in the feet, and
(d) a record of ongoing back pain of “2/10 severity” on 22 June 2017.
The Arbitrator observed that the appellant attended Dr El Skafi in March 2017 complaining of back pain and was referred for x-rays. The Arbitrator noted that the appellant attended on two further occasions, when Dr El Skafi recorded that the findings on radiological investigation were normal and the appellant was pain free. The Arbitrator observed that there were no other references to back pain in Dr El Skafi’s clinical notes before the entry in the hospital notes, referred to above.
The Arbitrator referred to the entries in Dr El Skafi’s clinical notes on 26 June, 27 June and 3 July 2017, in which there was no reference to injury to the back or back pain. The Arbitrator said that, despite numerous consultations, there was no reference to back pain until August 2017. The Arbitrator added that there was also no reference made to back pain by Dr Al Khateeb, the appellant’s specialist, who reported to Dr El Skafi on 21 July 2017.
The Arbitrator noted that the first entry in Dr El Skafi’s notes referring to back pain was on 19 August 2017 when Dr El Skafi recorded the history of the motor vehicle accident on the previous day and in which Dr El Skafi recorded “worsening pain in the neck and lower back.” The Arbitrator further noted that on 4 September 2017, Dr El Skafi recorded worsening cervical, thoracic and lumbar pain since the “MVA.”
The Arbitrator referred to the question directed to Dr Dias posed by the appellant’s legal representatives, in which the history was put to Dr Dias that the appellant had instructed the legal representatives that his lumbar pain developed about 12 months after the injury and in the context of the appellant’s altered gait. The Arbitrator noted Dr Dias’ response that the proposition was inconsistent with the history initially provided to him that the lumbar spine was injured in the fall on 21 June 2017.
The Arbitrator observed that the appellant’s case very much depended upon the evidence from Dr Dias and the appellant’s own statement evidence, and that the appellant’s evidence of back complaints before and after the motor vehicle accident was dramatically different to the notes made by Dr El Skafi. The Arbitrator referred to Davis v Council of the City of Wagga Wagga,[38] and the requirement to treat the clinical notes of a general practitioner with caution. The Arbitrator considered, however, that there were numerous entries in the notes after the work-related injury in which Dr El Skafi recorded the appellant’s complaints, which identified the injury as a right leg injury. In addition, Dr El Skafi’s medical certificates only referred to the right leg. Further, the clinical notes were quite comprehensive and referred to many complaints, but back pain was only mentioned after, and in connection with, the motor vehicle accident.
[38] [2004] NSWCA 34.
The Arbitrator considered that the appellant’s allegation that he did not injure his back in the motor vehicle accident and injured it in the fall was unreliable, in the context of the detailed notes recorded by Dr El Skafi. The Arbitrator also considered that the history provided to Dr Dias was quite different to the history and the opinion of Dr Powell, as well as the history provided by the appellant to his legal representatives.
The Arbitrator referred to the submission made by the appellant’s counsel that the history recorded by Dr Powell was a reconstruction from medical records. The Arbitrator indicated that the assertion may be partly true but concluded that it was also likely, in part, to be the history provided to Dr Powell by the appellant. The Arbitrator reasoned that the history was similar to that provided to the appellant’s legal representatives, as passed on to Dr Dias, and was also similar to the clinical records. He concluded that, on that basis, he doubted that there was a sound basis for the opinion of Dr Dias as to the injuries suffered in the fall.
The Arbitrator turned to the notes from the hospital, which were referred to by counsel for the appellant in his submissions. The Arbitrator observed that “injury” is defined in s 4 of the 1987 Act, as either an injury in the form of a pathological change (an injury simpliciter) or a disease or an aggravation of a disease. The Arbitrator said that he was not certain whether the evidence established any such injury. He said he was “not persuaded that the hospital notes provide incontrovertible evidence, to use the term used in Fox v Percy of injury to the [appellant’s] back.”[39] The Arbitrator added that, as might be expected, the notes were not entirely consistent with each other. He was of the opinion that the x-rays performed of the lumbar spine were likely to have been undertaken on a precautionary basis. The Arbitrator reasoned that Dr Tzannes’ admission note referred to isolated leg pain and made no reference to back pain and in fact recorded no tenderness in the thoracic or lumbar spine. The Arbitrator pointed to the entries on 22 June 2017, where there was a reference to leg pain and no pain elsewhere, but reference later that day to “ongoing” back pain, rated as 2/10. The Arbitrator considered that, in the context of the other clinical notes, the meaning of the entry was not clear. The Arbitrator observed that there could be a number of explanations, other than that the back was injured in the fall. The Arbitrator considered that one explanation could have been that the pain resulted from the appellant’s posture while being confined to bed with the leg fracture. The Arbitrator also thought that there could be a number of other explanations for the presence of paraesthesia other than, as submitted by the appellant, as evidence of a back injury.
[39] Transcript of Reasons, Ali v Form Group NSW Pty Ltd (2074/20, Arbitrator Sweeney, 26 June 2020) (T), T 10.25–28.
The Arbitrator formed the view that, in the absence of incontrovertible evidence in the hospital notes of a back injury, and, in the context of the inconsistency between the allegation of a back injury and the entries in the clinical notes of Dr El Skafi, he did not accept that the appellant suffered a back injury as alleged. The Arbitrator added that he did not accept that proposition primarily because the appellant’s evidence was unreliable.
The Arbitrator issued a Certificate of Determination on 29 June 2020. The Certificate of Determination relevantly records:
“1. The applicant has not established on the balance of probabilities that he suffered injury to his back on 21 June 2017.
2. Remit the matter to the Registrar for referral to the pending list for allocation to an approved medical specialist to certify the degree of whole person impairment as a result of injury to the cervical spine, right lower extremity and right upper extremity together with consequential scarring on 21 June 2017.
3. Approved medical specialist to have access to the Application, the Reply, the Application to Admit Late Documents and the documents attached to each.”
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator:
(a) Ground 1: erred by failing to find as a matter of fact that the appellant suffered an injury to his back on 21 June 2017, in view of the contemporaneous clinical records and the consistent clinical notes of Dr El Skafi of 19/8/17;
(b) Ground 2: erred in law by:
(a)failing to properly understand or apply the correct test and standard for a finding of injury;
(b)failing to have regard to all of the evidence, including all references to back pain while the appellant was in hospital, and the word “worsening” in the clinical note of Dr El Skafi of 19/8/17;
(c)embarking on an impermissible process of reasoning;
(d)failing to have regard to the primacy of contemporaneous clinical records;
(e)failing to give adequate reasons;
(f)denying procedural fairness to the appellant by determining the cause of the appellant’s paraesthesia without evidence;
(g)in the alternative to (f), determining the cause of the appellant’s paraesthesia on the basis of apparently personal knowledge, and
(h)reasoning illogically or unreasonably in regard to the perceived inconsistency regarding the subject injury and the motor vehicle accident of 18/8/17.
(c) Ground 3: erred in the exercise of his discretion by reasoning illogically or unreasonably in accepting the report of Dr Powell over that of Dr Dias.
LEGISLATION
Section 4 of the 1987 Act provides:
“Definition of ‘injury’ (cf former s 6 (1))
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
SUBMISSIONS
The appellant provides submissions described as “Background,” in which he sets out the history of the injury and details of the appellant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act. The appellant refers to the respondent’s acceptance of the claim for injury to all body parts named, except for the allegation that the appellant’s lumbar spine was injured in the incident. The appellant says that the injury to the lumbar spine was disputed because the respondent was of the view that there was no record of complaint of back pain made by the appellant until after the motor vehicle accident on 18 August 2017. The appellant points out that, in his supplementary statement, he denied suffering injury in the motor vehicle accident.
The appellant submits that the Arbitrator did not accept that evidence from the appellant and, although there was a previous history of back pain in March 2017, did not find that the previous history was the cause of the appellant’s back pain. The appellant adds that the respondent did not assert that the previous history was the cause of the appellant’s back pain and nor did the respondent seek to cross-examine the appellant.
The appellant submits that the hospital notes were “critical evidence,” and points to the entries where it was noted that:
(a) the appellant had been given a large quantity of opioids;
(b) the appellant underwent a reduction of his right leg under sedation;
(c) there was to be a “full log roll” until the appellant’s lumbar spine was cleared;
(d) lumbar spine screening films were performed;
(e) on the day following the accident, the appellant was given morphine for pain;
(f) there was paraesthesia in the left foot between two toes;
(g) “ongoing back pain, 2/10 severity” was recorded on 22 June 2017, as was reduced sensation in the right foot, and
(h) on 23 June 2017, the appellant complained of mild sacroiliac tenderness.
The appellant points to his submissions made at arbitration that:
(a) he complained of back pain despite receiving significant pain medication;
(b) the injury involved a violent impact and a serious injury to the right leg;
(c) the fact that the medical staff applied a pelvic brace and needed to investigate the lumbar spine meant that they were obviously concerned that such an injury could cause back problems, and
(d) in those circumstances, it would not be surprising that the appellant suffered back pain.
The appellant refers to the Arbitrator’s reasons, in which the Arbitrator referred to Dr El Skafi’s clinical note following the motor vehicle accident and the absence of reference to back pain in the letter from Dr Al Khateeb dated 21 July 2017. The appellant submits that the letter did not indicate that the appellant did not suffer from back pain. The appellant further refers to the Arbitrator’s conclusion that the history initially provided to Dr Dias that the appellant injured his back in the fall was inconsistent with the instructions that the lumbar pain developed twelve months after the work-related accident. The appellant asserts that the initial history was completely consistent with the clinical notes (presumably referring to the hospital notes).
The appellant further refers to the Arbitrator’s observation that the appellant’s case depended largely on his own evidence and the evidence of Dr Dias. The appellant submits that this observation was not correct because the hospital notes “speak for themselves.”
The appellant provides a detailed summary of the Arbitrator’s reasons and asserts error on the basis of the same reasons set out under Grounds 2(a)–(h) and 3 of the appeal. The submissions in relation to each ground of appeal are summarised below.
Ground 1: The Arbitrator by failing to find as a matter of fact that the appellant suffered an injury to his back on 21 June 2017, in view of the contemporaneous clinical records and the consistent clinical notes of Dr El Skafi of 19/8/17
The appellant makes no submission separately and specifically addressing Ground 1of the appeal, as required by Practice direction No 6. Presumably, the appellant’s reference to the “contemporaneous clinical records” is a reference to the evidence, described by the appellant above as “critical evidence.”
The respondent submits that the appellant consulted Dr El Skafi five days after the work-related injury and on further consultations up to and including a consultation on 15 August 2017, none of which made reference to a back injury. The respondent refers to the consultation on 19 August 2017, which was the day following the motor vehicle accident, at which consultation the appellant complained of worsening neck and lower back pain. The respondent submits that the entry recorded in the clinical note on that date establishes nothing more than that back pain caused by the motor vehicle accident was, by the time of the consultation, worsening. The respondent asserts that, in the absence of any previous entry of back pain from the time of the work-related injury, this could be the only interpretation.
Ground (2)(a): the Arbitrator erred in law by failing to properly understand or apply the correct test and standard for a finding of injury
The appellant submits that the Arbitrator determined the matter on the basis that there had to be “incontrovertible” evidence of the injury to the back occurring in the work-related incident. The appellant says that this observation was unclear, but undoubtedly refers to a test higher than that of on the balance of probabilities.
The appellant contends that the Arbitrator’s reliance on Fox v Percy,[40] which he says was cited by the Arbitrator as the Court of Appeal decision rather than the High Court decision, is, in any event, misplaced. The appellant submits that the reference to incontrovertible evidence in Fox v Percy is a reference to when an appellate court is entitled to intervene in a decision by a primary decision-maker. The appellant asserts that the concept has nothing to do with a requirement to determine injury on the balance of probabilities.
[40] [2003] HCA 22; 214 CLR 118 (Fox v Percy).
The appellant says that what is to be inferred from the Arbitrator’s observation is that the Arbitrator was of the view that the appellant had to negate the respondent’s case. The appellant adds that this observation of the Arbitrator’s reasoning process is supported by the order in which the Arbitrator dealt with the evidence, which is discussed in Ground 2(c) below. The appellant submits that the Arbitrator was required to determine the matter on the balance of probabilities, which is the correct test, and to which the Arbitrator did not refer at all in his reasons.
The respondent submits that this ground has no force. The respondent says that the Arbitrator was dealing with the concept of injury, and Fox v Percy is authority for the principle that the primary decision maker has the responsibility for factual adjudication. The respondent submits that the Arbitrator’s findings should not be disturbed unless it can be established that there is good and sufficient reason to do so.
Ground 2(b): The Arbitrator erred in law by failing to have regard to all of the evidence, including all references to back pain while the appellant was in hospital, and the word “worsening” in the clinical note of Dr El Skafi of 19/8/17
The appellant submits that in the Arbitrator’s consideration of all of the evidence, he only referred to the note of “ongoing back pain 2/10.” The appellant submits that there were two references to back pain in the notes, the second being noted on 23 June 2017, when the appellant complained of mild sacroiliac tenderness.
The appellant points out that he was not cross-examined and it was not put to him that he did not complain of pain in the hospital or that he did not have ongoing back pain.
The appellant submits that the Arbitrator failed to take note of the word “worsening” in the context of the neck and back pain reported to Dr El Skafi on the day following the motor vehicle accident. The appellant contends that the Arbitrator’s conclusion that this entry was inconsistent with the appellant having injured his back in the work-related injury was wrong. He submits that the entry is entirely consistent with the fact that he had suffered back pain before the motor vehicle accident and that this is reinforced by the appellant having unquestionably suffered from neck pain before the motor vehicle accident. The appellant points out that the respondent never denied that he injured his neck in the work-related incident.
The appellant submits that the decision-maker is required to have regard to all of the relevant evidence and a failure to do so is a jurisdictional and legal error, referring to the authorities of Minister for Immigration and Border Protection v MZYTS,[41] Minister for Immigration and Citizenship v SZRKT[42] and Symbion Health Limited (formerly Mayne Group Limited) v Ford.[43] The appellant asserts that the failure to refer to specific evidence may indicate that there was a failure to consider it and, in this case, the Arbitrator’s failure to record the second clinical note indicates that it was not taken into account. He submits that it is important evidence because it shows that the entry referring to back pain on 22 June 2017 was not an isolated complaint.
[41] [2013] FCAFC 114.
[42] [2013] FCA 317.
[43] [2008] NSWWCCPD 13.
The appellant refers to the Arbitrator’s observation that the notes were “inconsistent.” He contends that it is unclear what the Arbitrator meant, but that it is possible that the Arbitrator considered that the lack of complaint of back pain was the inconsistency and, if so, the failure on the part of the Arbitrator to have regard to the additional complaint was a critical failure. The appellant further refers to the Arbitrator’s observation that the references to pain could be explained on any number of bases but that the Arbitrator does not identify those as he was required to do, citing Campbelltown City Council v Vegan.[44]
[44] [2006] NSWCA 284 (Vegan), [121].
The respondent accepts that the summary of the Arbitrator’s findings represents a fair synopsis. The respondent says, however, that in the absence of a clear history of back pain on admission to hospital, the “incidental” references to back pain can be disregarded as nothing more than complaints of discomfort which probably arose from being confined to bed.
The respondent submits that it is relevant that there is no reference to back pain in the ambulance report or in the exhaustive review conducted by the hospital. The respondent asserts that any indication of back pain was unlikely to be overlooked.
Ground 2(c): The Arbitrator erred in law by embarking on an impermissible process of reasoning
The appellant submits that the Arbitrator determined that there was no injury to the back before he turned to the evidence contained in the hospital notes, which the Arbitrator referred to as the “remaining question.” The appellant asserts that the Arbitrator determined the question of injury in an incorrect, illogical order. The appellant disputes that the evidence was a remaining question to be disposed of after the determination was made and asserts that the evidence was an integral part of the decision-making process. The appellant quotes a passage from Finkelstein J’s judgment in SZDGC v Minister for Immigration and Citizenship,[45] in which his Honour observed that regardless of whether the decision-maker is a judge or administrative official, he or she must consider all of the evidence that bears upon a fact to be determined.
[45] [2008] FCA 1638.
The respondent submits that the Arbitrator considered both the direct and the corroborative evidence of the fact in issue and exercised common-sense in his evaluation of the chain of causation, consistent with the principle established in Kooragang Cement Pty Ltd v Bates.[46]
Ground 2(d): The Arbitrator erred in law by failing to have regard to the primacy of contemporaneous clinical records
[46] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The appellant notes that the Arbitrator was aware that clinical notes should be treated with caution. The appellant says that the Arbitrator made the comment in the context of his acceptance that the appellant suffered back pain after the motor vehicle accident. The appellant submits, however, that he submitted to the Arbitrator that the hospital notes should be given primacy and, relying on Coote v Kelly,[47] the fact that there was a complaint of backpain should have been afforded weight. The appellant contends that the Arbitrator did not engage with this submission.
[47] [2016] NSWSC 1447 (Coote).
The respondent submits that there is no authority for the proposition that one set of notes should be preferred over others but if there were, the clinical notes of Dr El Skafi must be preferred over the hospital notes. The respondent says that this is because Dr El Skafi recorded a series of the appellant’s general complaints and was not focussed on the reasons for hospitalisation.
Ground 2(e): The Arbitrator erred in law by failing to give adequate reasons
The appellant submits that, in accordance with Vegan, where there is an issue of causation, what is required is an analysis of the evidence which would identify the basis for symptoms and show how the basis for the symptoms does or does not relate to the injury. The appellant contends that the Arbitrator made no explicit finding that the appellant suffered back pain in hospital, although it could be inferred by the Arbitrator’s observation that the entry in the notes could have had a number of explanations. The appellant asserts that it is critical that the Arbitrator did not explain what those other bases could have been. The appellant submits that the Arbitrator was required to analyse those possible causes and demonstrate how they were, or were not, related to the injury.
The appellant adds that the Arbitrator also failed to explain why the worsening of the appellant’s back pain noted after the motor vehicle accident was not indicative of back pain arising in the work-related injury.
The appellant submits that the losing party must be able to understand why he lost. The appellant says that he has been left with a finding that his back pain has some other cause, without having that other cause suggested or explained to him. The appellant further submits that, in his reasons, the Arbitrator failed to have regard to the second reference to back pain noted in the hospital records. The appellant says that complaints of back pain were the crux of the controversy, the second complaint was not mentioned, and if it were to be discounted or not believed, the Arbitrator was required to explain why that was so, which he did not do.
The respondent refers to Vegan, which it submits is authority to say that the Arbitrator’s reasons for a professional judgment need not be lengthy or detailed. The respondent says that, in this case, the appellant appears to argue that the Arbitrator had to explain why paraesthesia could not be a reason to conclude that there had been a back injury. The respondent contends that the Arbitrator was entitled to make the observation that there could be many other causes for paraesthesia in the lower limbs. The respondent says that it is important that the presence of paraesthesia did not cause the hospital to investigate the possibility of a back injury.
The respondent submits that the onus was on the appellant to establish that he suffered a back injury in the work-related incident, and it is not up to the respondent to disprove it. The respondent refers to the decision of Snell ADP (as he then was) in Smith v Roads and Traffic Authority of NSW,[48] where Snell ADP quoted from Barwick CJ’s observation in Nicolia v Commissioner for Railways (NSW)[49] that, in the absence of medical evidence, questions of causation can be resolved by “using the common knowledge and experience of mankind.” The respondent also refers to Ipp JA’s observation in Flounders v Millar[50] that, in questions of causation in the common law, the test is one of common-sense, with the onus of proof always resting on the plaintiff.
Grounds 2(f) and 2(g): The Arbitrator erred in law by denying procedural fairness to the appellant by determining the cause of the appellant's paraesthesia without evidence, or on the basis of personal knowledge
[48] [2008] NSWWCCPD 130.
[49] (1971) 45 ALJR 465 (Nicolia).
[50] [2007] NSWCA 238 (Flounders).
The appellant refers to the hospital notes made on 22 June 2017 that referred firstly to paraesthesia of the left foot and later reduced sensation in the right foot. The appellant acknowledges that he had suffered a significant injury to his right leg but points out that there was no injury to the left leg. The appellant says that he submitted to the Arbitrator that those “radicular” symptoms were suggestive of a lower back injury. The appellant submits that the paraesthesia in the left leg could not have related to nerve damage from the fracture and no other injuries, other than the work-related injury, could have caused the paraesthesia to the left leg. The appellant says that the Arbitrator rejected that submission, accepted there was paraesthesia, but considered that it could potentially be related to the appellant’s position while confined to bed. The appellant contends that there was no medical evidence to support or even indicate that such a cause was possible. The respondent submits that the Arbitrator was not entitled to apply his personal knowledge in the absence of expert opinion.
The appellant submits that the first reference to paraesthesia was at 9.40 am on the first day of hospitalisation, so that it was unlikely at that early time to be caused by the appellant’s position in bed. The appellant submits that the Arbitrator should have raised this proposition in the arbitration in order to afford the appellant procedural fairness. The appellant asserts that, even if that were the cause, the condition would be compensable as it arose as a consequence of the injury, and the lumbar spine should have been referred for assessment as a consequential condition.
In relation to these two grounds of appeal, the respondent relies on its submissions made in respect of Ground (2)(e).
Ground 2(h): The Arbitrator erred in law by reasoning illogically or unreasonably in regard to the perceived inconsistency regarding the subject injury and the motor vehicle accident of 18/8/17
The appellant refers to the High Court decision in Minister for Immigration and Citizenship v Li[51] as authority for the proposition that the standard of unreasonableness does not require the decision to be bizarre or irrational. It can include failing to give adequate weight to a relevant, important factor, or giving excessive weight to an irrelevant, unimportant matter, or the Arbitrator’s reasons were illogical or irrational.
[51] [2013] HCA 18.
The appellant submits that it was implicit that the Arbitrator found that the appellant had injured his back in the motor vehicle accident, which caused him ongoing back pain. The appellant says that, in coming to that finding, the Arbitrator relied on there being no medical reference to back pain until the day after the motor vehicle accident. The appellant asserts that this observation was incorrect. It ignored the references to back pain and paraesthesia in the hospital notes and ignored the reference in Dr El Skafi’s clinical notes that, after the motor vehicle accident, the appellant’s back pain was worse.
In any event, the appellant submits, if he had injured his back in the motor vehicle accident, that did not preclude a finding that he also injured his back in the work-related injury, a finding that the appellant says was entirely open. The appellant contends that the Arbitrator seems to have determined that ongoing symptoms resulted from the motor vehicle accident, which the appellant submits is not the Arbitrator’s role, which was acknowledged by the Arbitrator. The appellant asserts that a determination of whether the effects of the injury have ceased is a matter for an Approved Medical Specialist.
The appellant refers to the Arbitrator’s observation that there was no “incontrovertible” evidence of a low back injury in the hospital notes and that, because the allegation was inconsistent with Dr El Skafi’s notes, the appellant had not proven that he injured his back in the work-related injury. The appellant contends that logically, there was no inconsistency with him having suffered a back injury in both incidents and there was no need to weigh the hospital notes against those of Dr El Skafi. He submits both can be accepted.
The appellant proffers the question that if the motor accident had not occurred, would it have been reasonable for the Arbitrator to determine that there was no injury to the back? The appellant says that if the answer is no, which it says is the correct answer, then the Arbitrator must be wrong. The appellant submits that there is an inescapable inference that the cause of the back pain in hospital was the work-related accident, there could be no other reason, and the subsequent motor vehicle accident does not change that fact.
The appellant further submits that Dr Powell did not attribute the appellant’s back pain to the motor vehicle accident.
The respondent submits that the Arbitrator dealt with the question of causation in a logical and proper manner. The respondent points out that before the motor vehicle accident, there was no complaint of back pain arising from the work-related injury and there was a “palpable complaint of back pain resulting from a forcible rear end traffic accident.”[52] The respondent describes the “minor” references to back pain as “equivocal” in the context of the detailed ambulance report and secondary survey recorded in the hospital notes.
[52] Respondent’s submissions, [27].
The respondent refers to the observation made by Spigelman CJ in Seltsam Pty Ltd v McGuiness[53] that the burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists, as discussed by Roche DP in Brasz v Department of Ageing, Disability and Home Care.[54]
Ground 3: The Arbitrator erred in his discretion by reasoning illogically or unreasonably in accepting the report of Dr Powell over that of Dr Dias
[53] [2000] NSWCA 29.
[54] [2009] NSWWCCPD 62.
The appellant submits that he relied on the following documentary evidence:
(a) the hospital notes, which he describes as critical evidence because they were the most contemporaneous available;
(b) his evidence in the second statement in which he alleges that he suffered injury to his back in the work-related injury, and
(c) two reports from Dr Dias.
The appellant submits that the respondent’s evidence was primarily that of Dr Powell, who took a history that the low back symptoms did not manifest until August 2018, were not precipitated by any particular incident, and after which he was treated with physiotherapy with minor improvement. The appellant observes that it is not clear from where Dr Powell obtained this history. He alleges that there are a number of difficulties with Dr Powell’s report, including that there was a lack of complete and available records and that this was an incorrect history.
The appellant refers to his submissions made at arbitration, which were that:
(a) the records relied upon by Dr Powell were a “selection” and did not include a complete copy of Dr El Skafi’s notes;
(b) Dr Powell only had possession of the discharge summary from the hospital and did not have possession of the hospital notes, which could have been provided to him, and
(c) Dr Powell referred to a report of Chee Wong Law which was not in evidence.
The appellant submits that the Arbitrator did not engage with the question of the absence of that report and rejected the opinion of Dr Dias because Dr Dias had the wrong history, a finding which was incomprehensible. The appellant explains that Dr Dias had the complete clinical notes of Dr El Skafi and did not rely on any material that was not before the Arbitrator.
The appellant concedes that Dr Dias was invited to consider whether the appellant’s altered gait was causative of the back symptoms, which the doctor rejected because it was not consistent with the history provided to him initially. That is, that the appellant injured his low back in the work-related incident. The appellant says that Dr Dias did not have before him the hospital notes at that time, however those notes demonstrated that the original history provided to him was correct. The appellant maintains that the Arbitrator rejected the opinion of Dr Dias on the basis that he had an incorrect history, which was wrong, and the rejection of Dr Dias’ opinion was therefore illogical and irrational.
The appellant submits that there can be no doubt that Dr Powell did not have the contemporaneous history of complaints of back pain while the appellant was in hospital and the only doctor who had a correct history was Dr Dias. The appellant further submits that there was no rational basis upon which to accept the opinion of Dr Powell.
The respondent submits that the opinion of Dr Dias was based upon the history provided by the appellant. The respondent asserts that it is apparent from Dr Dias’ report that he did not have a complete copy of Dr El Skafi’s notes and was therefore working from an incomplete and misleading history. The respondent further asserts that Dr Powell had all of the relevant clinical material before him.
The respondent refers to the evidence of Dr Shetty, spine specialist, who provided four reports and only recorded right knee and right leg symptoms and later shoulder symptoms, with no reference to back pain.
THE ORDERS SOUGHT
The appellant seeks to have:
(a) the Arbitrator’s Certificate of Determination revoked;
(b) an award entered in his favour in respect of the allegation of injury to the lumbar spine;
(c) the injury to the lumbar spine included in the referral to the Approved Medical Specialist for assessment of his whole person impairment, and
(d) an order that the respondent pay the appellant’s costs of the appeal.
The respondent submits that the Arbitrator’s Certificate of Determination should be confirmed.
CONSIDERATION
The right to pursue an appeal from a decision of an Arbitrator is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Arbitrator, where such error is of fact, law or discretion.
The determination of whether the appellant suffered an injury to his lumbar spine is a factual determination. In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[55] have been consistently applied in the Commission. Those principles were recited by Deputy President Roche in Raulston v Toll Pty Ltd[56] as follows:
“…
(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.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
[55] (1966) 39 ALJR 505.
[56] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].
The Court of Appeal in Northern NSW Local Health Network v Heggie[57] considered the above principles in the context of the Commission’s powers on appeal and said as follows:
“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, per Mason and Deane JJ.”
[57] [2013] NSWCA 255; 12 DDCR 95, [72].
Applying these authorities, in order for the appellant to succeed on this appeal, he must establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong.
Ground 1: The Arbitrator erred by failing to find as a matter of fact that the appellant suffered an injury to his back on 21 June 2017, in view of the contemporaneous clinical records and the consistent clinical notes of Dr El Skafi of 19/8/17
The appellant’s absence of submissions specifically addressing this ground of appeal is not helpful. Presumably the submissions made in the preamble to addressing each of the grounds of appeal were in part intended to address this ground.
The ground of appeal alleges that the clinical notes from Dr El Skafi and “contemporaneous clinical records,” presumably a reference to the St George Hospital notes, were sufficient evidence to show that the Arbitrator was wrong in law by failing to find that the appellant injured his lumbar spine in the incident on 21 June 2017. The appellant lists the relevant entries in the St George hospital notes that he considers “critical.”
The appellant refers to the fact that opioids and morphine were administered before and during his admission to hospital. The appellant does not explain this submission further. It seems that the appellant may be asking the Commission to infer that the effects of those drugs masked his perception of pain in the lumbar spine. Such an inference is at odds with the appellant’s statement evidence that he advised Dr Anthony Keeley and Dr Jonathan Herald of his back pain and that Dr Herald and Mr Berbari provided treatment for his back. The appellant also received treatment from a Dr Phillip Monaghan.
The appellant further refers to the entries in the notes where the lumbar spine is mentioned. Dr Tzannes performed a thorough examination of the appellant at the time of the appellant’s admission to hospital. He recorded no tenderness in the thoracic or lumbar spine and noted that the x-ray of the lumbar spine disclosed no abnormality. In the context of the radiological investigation of the spine being conducted in the absence of any complaint of symptoms on examination, it was open to the Arbitrator to conclude that the x-rays were conducted as a precautionary step, as well as the implementation of the “full log roll” until the lumbar spine was cleared of any injury. Such a conclusion is not irrational, or so against the weight of the evidence that it could be considered wrong.
The appellant also argues that the presence of paraesthesia between two toes of the left foot and reduced sensation in the right foot were evidence of a lumbar spine injury. The Arbitrator considered that there could be a number of explanations for the presence of those symptoms. The appellant submitted to the Arbitrator and on this appeal that there could be no other cause for the paraesthesia in the left foot other than that it arose from an injurious event involving the lumbar spine. The appellant criticises the Arbitrator for considering that there could be other causes, submitting that the Arbitrator was not entitled to apply his personal knowledge in the absence of expert opinion. In the context of the appellant asking the Arbitrator to conclude that the foot symptoms were indicative of a lumbar injury, the appellant’s submission is somewhat circular. The submission was not supported by any medical evidence of a connection suggestive of lumbar radiculopathy or referred leg pain, the presence of which was not at any time recorded by a medical expert. The appellant invited the Arbitrator to reach the conclusion put to him and now criticises the Arbitrator for concluding otherwise. In his evaluation of the submission put to him, the Arbitrator was entitled to draw on his own experience and determine the point raised on the basis of common sense.
None of the above evidence is suggestive of the appellant having suffered a lumbar injury in the fall. The appellant is left with the evidence of a complaint of back pain on the day after the injury and of mild sacroiliac tenderness on the following day. The Arbitrator referred to the definition of injury in s 4 of the 1987 Act and noted that what is required to establish injury is that there was an “injury simpliciter” involving pathological change, or injury by way of a disease or aggravation of a disease. The Arbitrator considered the entry in the notes referring to back pain and determined that the observation was not sufficient to establish that an injury to the lumbar spine occurred in the fall.
The only diagnosis of injury was that provided by Dr Dias, who diagnosed “chronic non-specific lumbar spine pain secondary to an acute musculoligamentous strain.”[58] The Arbitrator did not accept the opinion of Dr Dias, principally because it was dependent on the history provided by the appellant, which was unreliable. There was no other evidence which would assist the Arbitrator in identifying that a pathological change in the lumbar spine had occurred in the work-related incident, or that there had been a contraction or aggravation of a disease. The radiological investigations conducted in March 2017 (before the work-related injury) and in the hospital on 21 June 2017 were both reported as normal.
[58] Dr Dias’ report dated 27 February 2019, ARD, p 380.
The Arbitrator’s finding that there was insufficient proof that the appellant suffered an injury to the lumbar spine was a finding of fact. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is a factual exercise and generally a matter that falls within the province of the primary decision maker.[59] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[60] As the respondent submits, it is not sufficient that the evidence indicates that the appellant might possibly have suffered an injury. In the facts and circumstances of this case, where there was no satisfactory evidence to support that an injury in accordance with s 4 of the 1987 Act had occurred, the Arbitrator’s conclusion was reasonable, logical and open to him.
[59] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
[60] Fox v Percy, 125–6.
The appellant is critical of the Arbitrator for his failure to take into account the observation that, on the third day of his hospitalisation, the appellant was suffering from tenderness in the sacroiliac joint. The appellant does not explain how that evidence could be evidence of injury to the lumbar spine occurring on 21 June 2017. The appellant had been confined to bed, a fact which itself might explain the tenderness. Once again, the Arbitrator was required to determine whether the appellant had suffered an injury within the meaning of s 4 of the 1987 Act. That is, that there had been an event involving a pathological change or the contraction or aggravation of a disease. There is no medical evidence that supports a connection between the sacroiliac tenderness and any injury to the lumbar spine.
The appellant refers to the Arbitrator’s observation that there was no reference to back pain in Dr Al Khateeb’s letter dated 21 July 2017 and submits that the letter gave no indication that the appellant did not suffer from back pain at that time. If that was a submission made to support an assertion that the Arbitrator erred, then it cannot be accepted. The appellant is required to prove his case and it is not sufficient to assert that no mention of back pain tends to be evidence that it was present. The absence of any reference to back pain in Dr Al Khateeb’s letter is critical.
For the above reasons, this ground of appeal fails.
Ground 2(a): the Arbitrator erred in law by failing to properly understand or apply the correct test and standard for a finding of injury
The appellant refers to the Arbitrator’s observation that, in the absence of “incontrovertible” evidence in the hospital notes, he was not satisfied that the appellant suffered a back injury in the incident on 21 June 2017. The appellant submits that requiring there to be such evidence indicates that the Arbitrator applied a higher test than that of the civil standard, which requires that the case is proved on the balance of probabilities.
The appellant suggests that the Arbitrator cited the Court of Appeal decision in Percy v Fox,[61] rather than the High Court authority. The Arbitrator made no reference to the decision being that of the Court of Appeal, provided no citation and, in referring the decision as Fox v Percy, was clearly referring to the High Court decision. However, nothing turns on that point. The Arbitrator did not apply any proposition from that authority. He simply adopted the term, “incontrovertible evidence,” in the sense of the evidence described in Fox v Percy.[62] That is, objective evidence that would stand in the face of:
(a) the appellant’s statement evidence, which he found unreliable;
(b) the complete absence of supportive evidence from Dr El Skafi;
(c) the absence of report in the ambulance and hospital notes that the lumbar spine was injured, and
(d) the absence of evidence from any other treatment provider.
[61] [2001] NSWCA 100.
[62] T 10.25–28.
The manner in which the Arbitrator considered the evidence, and the reasons provided for accepting or rejecting that evidence were consistent with an assessment of whether the appellant had discharged his onus of proving his case to the civil standard. An arbitrator is not required to spell out the standard of proof he or she is applying, provided that their assessment of the evidence and the reasons given are consistent with the appropriate civil standard.
Ground 2(a) of the appeal fails.
Ground 2(b): The Arbitrator erred in law by failing to have regard to all of the evidence, including all references to back pain while the appellant was in hospital, and the word “worsening” in the clinical note of Dr El Skafi of 19/8/17
The appellant submits that he was not cross-examined and it was never put to him that he made no complaints in the hospital or that he did not suffer from ongoing back pain. It is not clear how this submission is intended to advance this ground of appeal. I infer that his submission intends to complain that, because it was not put to him that he did not complain, his statement evidence that he did complain should be accepted. If that is the submission, then it is rejected. The Commission is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence.[63] The documents to be relied upon were exchanged between the parties and the issues in dispute were clearly identified, so that the appellant was well aware that his evidence was challenged.
[63] Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112].
The appellant submits that the Arbitrator omitted from his consideration the reference to sacroiliac tenderness in the hospital notes and failed to take note of the word “worsening” in the context of the neck and back pain reported to Dr El Skafi on the day following the motor vehicle accident. The Arbitrator considered the entries in the clinical notes made on 19 August 2017 as well as the entry on 4 September 2017, where Dr El Skafi recorded “worsening” pain.[64] The Arbitrator weighed the evidence recorded in the entry of 19 August 2017 and reasoned as follows:
“However, there is no recorded complaint of back pain until the motor accident where it is specifically referred to in connection with the motor vehicle accident on the previous day.
The applicant, of course, claims that he did not suffer injury in the motor vehicle accident and that his back complaint relates to the fall. I prefer the contemporaneous record of Dr El Skafi. His note on the page dealing with the motor vehicle accident is, in many respects, in report form. It is my opinion that the worker’s evidence on the issue of the nature of the injuries that he sustained in the incident of 21 June 2017 is, for one reason or another, unreliable.”[65]
[64] T 7.13–8.5.
[65] T 9.15–28.
The entry in the clinical note read “after the accident [the appellant] was [shaking] and felt worsening pain in the neck and lower back area …”. As the respondent submits, it is likely that Dr El Skafi meant that the pain felt in the back after the motor vehicle accident had been getting worse since the accident. Even if that were not the case, in the absence of some explanatory evidence from Dr El Skafi, the appellant’s submission that the reference to “worsening” pain is proof that the appellant injured his back in the work-related injury is pure conjecture. In those circumstances, the appellant’s submission that the entry is entirely consistent with the fact that he had suffered back pain before the motor vehicle accident cannot be accepted.
The appellant argued that it is somehow relevant that the appellant suffered from neck pain before the motor vehicle accident and the respondent had accepted that the neck was injured in the work-related injury. The injury to the neck was not in issue in these proceedings, was not reliant upon the same sequence of events and was not a matter for the Arbitrator to determine. The submission is irrelevant and rejected.
The appellant contends that the Arbitrator concluded that this entry was inconsistent with the appellant having injured his back in the work-related injury, which was wrong. As is apparent from the passage of the Arbitrator’s reasoning about this entry, the conclusion reached by the Arbitrator was that the appellant’s evidence that he was not injured in the motor vehicle accident was unreliable. He did not reach the conclusion suggested by the appellant.
As discussed in Ground 1 above, there is no medical evidence that supports a connection between the sacroiliac tenderness and any injury to the lumbar spine. For the reasons set out in Ground 1 of the appeal, the evidence that the appellant suffered from sacroiliac joint tenderness is not material evidence.
For the above reasons, the references to sacroiliac tenderness and “worsening” of the appellant’s back pain after the motor vehicle accident do not constitute probative evidence of the fact in issue before the Arbitrator. Any failure on the part of the Arbitrator by having not dealt with this evidence could not affect the ultimate conclusion reached by the Arbitrator and is, therefore, no basis upon which to disturb the Arbitrator’s final determination.[66]
[66] Walshe v Priest [2005] NSWCA 333.
In this ground of appeal, the appellant’s submissions do not criticise the Arbitrator’s evaluation of, or conclusion reached, in respect of the entry in the hospital note on 22 June 2017 of “ongoing back pain 2/10.”
This ground of appeal fails.
Ground 2(c): The Arbitrator erred in law by embarking on an impermissible process of reasoning by determining the injury in an incorrect logical order
The appellant points to no part of the transcript of reasons where the Arbitrator determined that the appellant did not suffer an injury to his lumbar spine prior to an evaluation of the evidence from the hospital. The transcript discloses that the Arbitrator:
(a) evaluated the appellant’s statement evidence;[67]
(b) considered that evidence to be inconsistent with the Dr El Skafi’s clinical notes;[68]
(c) reviewed the St George Hospital records;[69]
(d) summarised Dr El Skafi’s clinical notes;[70]
(e) noted the history recorded in Dr Al Khateeb’s report, which did not refer to back pain;[71]
(f) quoted from the entries in Dr El Skafi’s note dated 19 August 2017 and 4 September 2017,[72] and
(g) considered the supplementary report from Dr Dias.[73]
[67] T 3.25–4.25.
[68] T 4.27–29.
[69] T 4.30–6.1.
[70] T 6.1–7.2.
[71] T 7.4–11.
[72] T 7.13–8.5.
[73] T 8.7–25.
The Arbitrator then proceeded to give reasons as to why he preferred the contemporaneous evidence of the records of Dr El Skafi and concluded that the appellant’s evidence in relation to not having suffered injuries in the motor vehicle accident was unreliable. He further gave reasons for concluding that Dr Dias’ opinion was not soundly based. The Arbitrator turned to the hospital notes and gave reasons why he was of the view that the notes did not provide sufficient evidence that the appellant had injured his lumbar spine in the work-related injury. The Arbitrator then concluded that the appellant had not proved his case.
The above summary discloses that the Arbitrator did not conclude that the appellant had not suffered a lumbar injury before he gave consideration to the hospital records. He clearly included the hospital records in his evaluation of the evidence that led to his conclusion. The approach taken by the Arbitrator was logical and properly reasoned.
It follows that this ground of appeal does not succeed.
Ground 2(d): The Arbitrator erred in law by failing to have regard to the primacy of contemporaneous clinical records
As the respondent submits, there is no authority for the proposition that contemporaneous clinical records should, as a matter of course, be afforded greater weight than other evidence. It will, of course, often be the case that the contemporaneous records, which are always important, will be afforded greater weight than subsequent recollections or observations made in hindsight, but that is a matter to be determined in the context of the facts and circumstances of each case. The weight to be afforded to that evidence is a factual exercise. The decision in Coote does not assist the appellant. In that case, Davies J was required to determine whether a skin lesion, diagnosed as a plantar wart, was at the time of diagnosis either a melanoma or was masking a melanoma, which subsequently led to the demise of the Plaintiff’s father. His Honour was tasked with assessing the reliability of the Plaintiff’s memory of the appearance of the lesion, which was contrary to the contemporaneous descriptions noted in the medical records. In the present case, the Arbitrator determined that the entries in the hospital records did not assist the appellant. For the reasons explained in Ground 2(b) of the appeal, the evidence relied on in the hospital records does not constitute probative evidence of the fact in issue, and there was no error on the part of the Arbitrator in the manner in which he dealt with that evidence. The Arbitrator found the appellant’s evidence unreliable and found no objective evidence to support the allegation. There is no reason why the Arbitrator ought to have afforded the evidence greater weight in circumstances where the evidence was not supportive of the appellant’s case.
The appellant has not established error on the part of the Arbitrator in respect of the weight he afforded the evidence. This ground of appeal fails.
Ground 2(e): The Arbitrator erred in law by failing to give adequate reasons
Section 294(2) of the 1998 Act requires that when a Certificate of Determination is issued by the Workers Compensation Commission (the Commission), a “brief statement” setting out the Commission’s reasons must be attached. To ascertain whether the Arbitrator’s reasons are adequate, it is necessary to take into account the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate.[74]
[74] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
In Roncevich v Repatriation Commission,[75] Kirby J said that the court (or tribunal) “should avoid an overly pernickety examination of the reasons,” and that “[t]he focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties.”
[75] [2005] HCA 40; 222 CLR 115, [64].
The appellant submits that the Arbitrator made no specific finding that the appellant suffered back pain in the hospital. It is apparent from the Arbitrator’s reasons that he accepted that the appellant suffered back pain but rejected the submission that the evidence was evidence going to show that the appellant suffered an injury to the lumbar spine, as defined by s 4 of the 1987 Act.
The appellant relies on Vegan to assert that the Arbitrator was required to determine the basis for the symptoms and how that basis did or did not relate to the work-related injury. The observations of Basten JA in Vegan relied upon by the appellant apply to the duty of a medical assessor to explain the assessment of permanent impairment. Nonetheless, the Arbitrator has an obligation to provide reasons for his or her conclusions which were sufficient for the parties to understand why the conclusion was reached.[76]
[76] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270.
The appellant refers to the Arbitrator’s observation that there could be any number of causes for the complaint of back pain and says that the Arbitrator did not explain, as he was required to do, what those other causes could be. The Arbitrator considered that in the context of the other clinical notes, the meaning of the entry was not clear. The Arbitrator did in fact give the example that one explanation could have been that the pain resulted from the appellant’s posture while being confined to bed with the leg fracture. As the respondent submitted, Barwick CJ observed in Nicolia that, in the absence of medical evidence, common knowledge and experience can be used in determining questions of causation. A common-sense approach was endorsed in Flounders and Kooragang. The observation that there could be a number of explanations for back pain is a common-sense remark and the example given is not illogical. The Arbitrator gave adequate explanation for that conclusion.
I have discussed the appellant’s reliance on the report of “worsening” back pain in Ground 2(b) above. The “worsening” of the appellant’s back pain after the motor vehicle accident does not constitute probative evidence of the fact in issue before the Arbitrator and any failure to deal with a submission put would not affect the outcome in this case.
Taking into account the Arbitrator’s observations of the evidence, I am of the view that the Arbitrator’s reasons as a whole are indeed sufficient to satisfy the necessary degree of adequacy required by s 294(2) of the 1998 Act. This ground of appeal does not succeed.
Grounds 2(f) and 2(g): The Arbitrator erred in law by denying procedural fairness to the appellant by determining the cause of the appellant's paraesthesia without evidence, or on the basis of personal knowledge
In my consideration of Ground 1 of the appeal, I dealt with the appellant’s submission about the purported causal connection between the paraesthesia and the work-related injury. The appellant asked the Arbitrator to conclude that the foot symptoms were indicative of a lumbar injury. I reiterate that there is no medical support for the proposition that the two were in some way connected and there was no evidence of radiculopathy found on examination. The appellant invited the Arbitrator to reach the conclusion put to him, which had no basis in the medical evidence. He now criticises the Arbitrator for concluding otherwise. As I observed above, in his evaluation of the submission put to him, the Arbitrator was entitled to draw on his own experience and determine the point on the basis of common sense.
The Arbitrator did not attribute the cause of the paraesthesia to the appellant’s position in bed, so that the proposition put by the appellant that this explanation should have been put to him is misplaced. Further, whether that cause would be compensable is irrelevant. The appellant did not bring a case that his lumbar injury occurred as a consequence of the work-related injury and in fact specifically avowed that this was not the case. The claim for compensation is based on an allegation of a frank injury occurring in the incident on 21 June 2017.
It follows that this ground of appeal fails.
Ground 2(h): The Arbitrator erred in law by reasoning illogically or unreasonably in regard to the perceived inconsistency regarding the subject injury and the motor vehicle accident of 18/8/17
The appellant submits that the Arbitrator implicitly found that the appellant injured his back in the motor vehicle accident, which caused ongoing back pain. The appellant says that the Arbitrator’s conclusion that there was no reference to back pain until the day after the motor vehicle accident was wrong. The appellant points to the reference to back pain and paraesthesia in the hospital notes. The appellant submits that the Arbitrator also disregarded Dr El Skafi’s clinical note that the appellant’s back pain was worse after the motor vehicle accident.
A review of the Arbitrator’s reasons discloses that the Arbitrator’s conclusion that there was no reference to back pain until the day after the motor vehicle accident was an observation made about the clinical notes of Dr El Skafi and was not inclusive of any reference to the hospital notes.[77] The appellant’s allegation that the clinical note in which Dr El Skafi recorded that the appellant was suffering “worsening” neck and low back pain was evidence that he had injured his back in the work-related injury is discussed above in Ground 2(b). For the reasons given, that clinical note does not constitute evidence that the appellant injured his back in the work-related incident.
[77] T 8.33–9.18.
Further, the Arbitrator may have implicitly found that the appellant suffered a low back injury in the motor vehicle accident, but he did not make a determination that the appellant’s ongoing symptoms related to that injury. The Arbitrator’s consideration of the clinical note was given in the context of an assessment of when the appellant complained of back pain to his general practitioner and whether the appellant’s statement evidence was consistent with the entry and reliable. The Arbitrator did not approach that evidence on the basis that the appellant either suffered a back injury in the work-related incident, or he suffered such injury in the motor vehicle accident.
It is irrelevant that Dr Powell did not attribute the appellant’s back pain to the motor vehicle accident. It was sufficient that Dr El Skafi recorded that it was.
For the above reasons, the appellant has not established error in the manner alleged. It follows that this ground of appeal fails.
Ground 3: The Arbitrator erred in his discretion by reasoning illogically or unreasonably in accepting the report of Dr Powell over that of Dr Dias
Both parties argue that the opposing party’s medico-legal expert was not provided with a complete copy of Dr El Skafi’s clinical notes and the appellant also argues that Dr Powell only had the discharge summary from St George Hospital and had none of the hospital’s clinical notes. In his report dated 27 February 2019, Dr Dias listed the documents provided to him.[78] A number of those documents pre-dated the work-related injury or related to investigations and treatment for the right shoulder, right knee and cervical spine. Further documents listed were:
(a) the report of Dr Shetty dated 4 July 2018;
(b) the clinical records of the Medical and Dental Centre for the period up to 11 December 2017;
(c) the clinical records of the Chirokinetix Sports Medicine Clinic up to 3 January 2018;
(d) the x-ray of the lumbar spine dated 21 March 2017, and
(e) a medical certificate of Dr El Skafi dated 23 March 2017.
[78] ARD, pp 368–371.
Other than the letter of the appellant’s legal representatives dated 25 November 2019 requesting a supplementary report, Dr Dias did not list any further documents in his supplementary report of that date.
In his report dated 16 May 2019, Dr Powell also listed the documents provided to him.[79] Those comprised:
[79] Reply, pp 5–6.
(a) a statement made by the appellant dated 19 July 2017;
(b) numerous reports from Dr Keely, Dr Herald, Dr Shetty and Dr Pope;
(c) a selection of Dr El Skafi’s clinical notes;
(d) reports of Dr El Skafi dated 12 July 2017, 4 October 2017 and 10 January 2019;
(e) the St George Hospital discharge summary dated 23 June 2017;
(f) various radiological investigations of the right shoulder, right knee and cervical spine;
(g) an activities of daily living assessment by Ms Jenna Vos, rehabilitation consultant;
(h) a medico-legal report of Chee Wong Law, a “medicine review specialist,” and
(i) the report of Dr Dias dated 27 February 2019.
It appears from the above that neither expert had the benefit of a complete copy of Dr El Skafi’s clinical notes and both experts had access to documentation that was not in evidence before the Commission. Curiously, the appellant asserts that Dr Dias had a complete copy of Dr El Skafi’s clinical notes, but it is not apparent from the list of documents that he in fact did. The list includes the Medical and Dental Centre and the Chirokinetix Sports Medicine Clinic but does not include the notes from Dr El Skafi or the United Medical Centre where Dr El Skafi practised.
Dr Dias did not express any evaluation of the documentary evidence in his report other than the details of the appellant’s pre-injury neck symptoms. Similarly, the documents referred to by Dr Powell in his evaluation only included reference to the radiological investigations.
The appellant submits that Dr Powell’s evidence should not be accepted because Dr Powell did not have access to a complete copy of Dr El Skafi’s notes. Neither expert had a complete copy of Dr El Skafi’s clinical notes. Had Dr Powell seen those notes, given there was no reference in those notes to lumbar injury received in the work-related incident, it is difficult to see how they would have changed Dr Powell’s opinion. The appellant submits that Dr Powell “referred” to a report from Chee Wong Law, which was not in evidence. Dr Powell did not refer to such a report, the report was simply listed in the list of documents. It appears both experts had access to information that was not adduced in evidence. Again, it is difficult to see why the appellant’s assertion would lend support to show that the Arbitrator’s preference for Dr Powell’s opinion over that of Dr Dias was wrong.
I note that, although the appellant criticises the opinion of Dr Powell because Dr Powell did not have the complete hospital records, the appellant concedes that Dr Dias did not have the hospital records at all at the time of writing his report. I also note that the appellant does not explain how Dr El Skafi’s notes, which were not supportive of the appellant having suffered injury as alleged, would put Dr Dias in a better position than Dr Powell to provide an opinion on causation.
The Arbitrator concluded that Dr Dias’ opinion that the appellant’s lumbar spine was injured in the fall did not have a sound basis, given that it was inconsistent with Dr El Skafi’s comprehensive clinical notes and his WorkCover certificates, the instructions provided by the appellant to his legal representatives that his back pain was caused by the use of crutches and was inconsistent with the history provided by the appellant to Dr Powell. Further, it was dependent upon the history provided to Dr Dias by the appellant, which suffered from the same inconsistencies and which the Arbitrator considered was unreliable. The Arbitrator preferred the opinion of Dr Powell because it was based on a history that was consistent with Dr El Skafi’s clinical notes and the appellant’s instructions to his legal representatives.
The appellant submits that the Arbitrator’s acceptance of Dr Powell’s opinion over that of Dr Dias was illogical, incomprehensible and unreasonable. As I have already indicated, the acceptance or rejection of evidence and the weight to be afforded to particular evidence is a factual exercise which generally falls within the province of the primary decision maker. It will not normally be disturbed on appeal if it has rational support in the evidence. The Arbitrator gave consideration to the relevant evidence and provided proper, evidence-based reasons for arriving at his conclusion that he preferred the opinion of Dr Powell over that of Dr Dias. It was open to the Arbitrator to come to that conclusion and I do not consider that there is any basis upon which the Commission should interfere with that conclusion.
Ground 3 of the appeal therefore fails.
CONCLUSION
None of the grounds of appeal brought by the appellant succeed. The Arbitrator’s Certificate of Determination is therefore confirmed.
DECISION
The Arbitrator’s Certificate of Determination dated 29 June 2020 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
3 November 2020
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