Ambulance Service of New South Wales v Anderson - [2011] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ambulance Service of New South Wales v Anderson [2011] NSWWCCPD 3
APPELLANT:		Ambulance Service of New South Wales
RESPONDENT:		Michelle Anderson
INSURER:		GIO - TMF
FILE NUMBER:		A1-4910/10
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		5 October 2010
DATE OF APPEAL DECISION:		14 January 2011
SUBJECT MATTER OF DECISION:		Injury; s 4 of the Workers Compensation Act 1987; causation; s 60 of the Workers Compensation Act 1987; nexus between injury and need for medical treatment
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turks Legal
Respondent:	Harris Wheeler Lawyers
ORDERS MADE ON APPEAL:		Paragraphs one and two appearing in the Certificate of Determination dated 5 October 2010 are revoked and the following determinations and order are made in their place: “1. The applicant received injury to her lumbar spine as a result of a frank injury on 22 August 2000. That injury caused discal disease. That disease was aggravated by the nature and conditions of the applicant’s work up to 2008. 2. The applicant’s employment was a substantial contributing factor to the injury received in August 2000 and to the aggravation of the disease, each of which caused the pathology in the lumbar spine which required treatment in 2009. 3. Order pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s medical, hospital and rehabilitation expenses.” The Arbitrator’s order numbered “1” concerning costs is confirmed, being order 4 made on this appeal, as is the Arbitrator’s order as to certification of costs as found in the Certificate of Determination dated 5 October 2010. The appellant is to pay Ms Anderson’s costs of this appeal.

BACKGROUND TO THE APPEAL

Ms Michelle Therese Anderson, who is 42 years of age, commenced employment with the Ambulance Service of New South Wales as a paramedic in October 1989. There is no dispute between the parties concerning the occurrence of a low back injury received by Ms Anderson in the course of that employment on 22 August 2000. Workers compensation benefits were paid by the appellant during a one month period of incapacity.
Ms Anderson resumed employment and performed her duties thereafter until taking maternity leave in March 2007 in anticipation of the birth of her third child. Maternity leave extended to 8 June 2008 following which Ms Anderson remained absent from work on leave without pay. On 10 October 2008 Ms Anderson returned to her duties on a part-time basis. Ms Anderson ceased work on 17 October 2008 by reason of a severe psychological injury received in the course of her employment. A claim for compensation benefits was made and that claim was accepted by the appellant. Weekly compensation in respect of incapacity resulting from that psychological injury has been paid on a voluntary basis by the appellant’s insurer to the present time.
On 7 April 2009 Ms Anderson experienced a sudden onset of cramps in her left foot whilst seated at her home. During the following days she developed severe low back pain and left sided sciatica. Ms Anderson alleges that she had experienced intermittent back pain and right sided sciatica following the injury received in August 2000 and that such pain and discomfort persisted thereafter.
Ms Anderson came under the care of Dr Darweesh Al-Khawaja, neurosurgeon, following referral by her general practitioner, Dr Brett Thomson. On 12 May 2009 Ms Anderson underwent an L5/S1 keyhole microdiscectomy which was conducted by Dr Al-Khawaja.
In May 2009 Ms Anderson provided the appellant with a Notification of Injury/Illness and a workers compensation claim form. Those documents included a form headed “employee’s recurrence report of injury following return to normal duties”. The date of the original injury was noted in that form as being August 2000 and the date of “recurrence” was noted as 5 May 2009. That claim was declined by the insurer on behalf of the appellant.
A dispute arose concerning Ms Anderson’s entitlement to compensation benefits and an Application to Resolve a Dispute was filed on her behalf with the Commission on 21 June 2010. That Application alleged at Part 4, where injury details were provided, that the date of injury was “17 October 2008”. That allegation, which is plainly wrong having regard to the history summarised above, has given rise to considerable confusion during the course of conduct of the proceedings. It appears that the Application was amended by consent during the course of a telephone conference in July 2010. That amendment and its consequences are addressed below.
The Application was listed before an Arbitrator for conciliation/arbitration on 21 September 2010. The matter proceeded to hearing at which time, following further amendment of the Application, the only relief sought was in respect of medical, hospital and rehabilitation expenses which had been particularised as totalling $11,388.21. At the hearing it was agreed between the parties, as subsequently noted by the Arbitrator in her Statement of Reasons (Reasons) for her determination, that the issue in dispute was whether the pathology and need for surgery concerning Ms Anderson’s lumbar spine was “causally related to the injury of 22 August 2000 and the nature and conditions of [Ms Anderson’s] employment with [the appellant] since August 2000”. It was also agreed between the parties that Ms Anderson’s claim in respect of medical expenses “would follow the outcome of the determination” of the issue of injury and that there “was no dispute as to the treatment and expenses being reasonably necessary”. The Arbitrator reserved her decision at the conclusion of the hearing and a Certificate of Determination issued on 5 October 2010.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 5 October 2010 records the Arbitrator’s findings and orders as follows:
“The Commission determines:
Findings
1. The injury in August 2000 and the nature and conditions of the applicant’s employment caused a long standing discal disease to the applicant’s spine at L4/5 and L5/S1 levels which was on the balance of probabilities aggravated in 2009 resulting in an acute herniation at L5/S1.
2. The injury in August 2009 is an injury under section 4 b) 1) [sic] of the Workers Compensation Act 1987 and the applicant’s work injury of 22 August 2000 and her employment with the respondent is a substantial contributing factor to her injury.
Orders.
1. That the respondent pay the applicant’s costs as agreed or assessed
Certification
I certify that this was a complex matter in that it involved a long history and complex medical questions and the maximum payable for booth the applicant’s and the respondent’s costs under table 1 is increased by 15%.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An Application seeking leave to appeal against the decision of the Arbitrator was filed with the Commission on 28 October 2010.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in finding/determining those matters found in [1] and [2] of the Certificate of Determination above noted at [8].

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Monetary threshold

There is no dispute between the parties concerning the threshold requirements as prescribed by s 352(2) of the 1998 Act. However, Ms Anderson, in her submissions in support of her Notice of Opposition to this appeal, argues that the findings challenged by the appellant “were findings in relation to injury, and as injury was not in issue, these findings were not a final determination, but were a recording of the fact, and as such were not a final determination” (at [2.2.7]). That argument appears to address the provisions of s 352(8) of the 1998 Act. However, no reference to that subsection was made in the course of these unhelpful submissions.
It seems that Ms Anderson’s argument is that the findings challenged by the appellant are not each a “decision” as defined in s 352(8) and thus no appeal may be made in respect of those findings. This supposed argument may be dealt with shortly. As earlier noted, the particulars relating to the alleged injury as they appeared in the Application at the time of filing were plainly inaccurate and represented the first indication of confusion in the manner in which this Application has been conducted before the Commission. The appellant responded to Ms Anderson’s original claim by service of a notice issued pursuant to s 74 of the 1998 Act. Following commencement of proceedings and the subsequent amendment which was apparently effected at the teleconference noted at [6] above, the appellant, through its solicitors, served a supplementary or amended dispute notice which addressed the issues raised in the Application as amended. That notice, and earlier correspondence dated 24 June 2010, made it perfectly clear that the appellant did not dispute the occurrence of injury on 22 August 2000. As earlier noted, the Arbitrator had confirmed in the course of her Reasons that agreement had been reached between the parties that the issue for determination was whether the pathology requiring surgery demonstrated in Ms Anderson’s lumbar spine in 2009 was causally related to the injury of August 2000 and the subsequent work performed by her with the appellant. That dispute was also made reasonably clear by the terms of the amended notice.
The issue raised for determination before the Arbitrator was the question as to the existence or otherwise of a causal nexus between the frank injury to Ms Anderson’s lower back in August 2000, together with the nature and conditions of her duties performed subsequently with the appellant, and the pathology giving rise to the need for surgery which was revealed following worsening of symptoms, as alleged, in 2009. That issue has been determined in Ms Anderson’s favour and is a determination as to liability. Such determination finally determines the rights of the parties with respect to those allegations of injury. The argument raised in opposition to the appeal appears not to distinguish between the question as to the occurrence of injury, a matter admitted by the appellant, and the issue raised in the proceedings by the appellant being the existence or otherwise of a causal nexus between that admitted injury and the pathology revealed following treatment in 2009. In so far as the matters raised on behalf of Ms Anderson may be construed as an objection to the granting of leave to proceed with the appeal, that argument must be rejected.

Time

The appeal has been filed with the Commission within 28 days of the Arbitrator’s decision as required by s 352(4). In the circumstances I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

THE ARBITRAL PROCEEDINGS

The documentary evidence which was before the Arbitrator is described by her at [6] of Reasons. There was no oral evidence adduced at the hearing.
The proceedings before the Arbitrator were recorded, a transcript has been produced and a copy provided to each of the parties.
The transcript records a lengthy exchange between the Arbitrator and counsel appearing on behalf of each party concerning the precise terms of the amendment which had been sought by Ms Anderson and granted by another Arbitrator during the course of the July teleconference. The uncertainty which required resolution before commencement of the arbitration demonstrates the need for a clear enunciation of the terms of any amendment sought by a party, and a clear and unequivocal notation on the record, made by the Arbitrator concerned, as to any order made granting, or refusing, such an application. In the present case the confusion confronting the Arbitrator and the parties was compounded during the course of discussion when attention was given to the nature of the relief sought. The transcript reveals that the subject of “a declaration of liability” was discussed. Counsel then appearing on behalf of the appellant stated (at T6) that “2000 injury was accepted”. The following exchange occurred between the Arbitrator and counsel immediately thereafter:
“ARBITRATOR: ‑‑ we don’t need a declaration of liability for 2000; I think we need a declaration of liability for 2009.
MR NEWTON: That’s what we need. We need a declaration as to what happened ‑‑
ARBITRATOR: That’s right, yes.
MR NEWTON: ‑‑ in 2009 ‑‑
ARBITRATOR: That makes sense.
MR NEWTON: ‑‑ and its causal nexus with 2000.
ARBITRATOR: With 2000 okay.”
Counsel appearing on behalf of Ms Anderson submitted to the Arbitrator that the issue for determination included the question as to the relevance or otherwise of the nature and conditions of his client’s employment causing injury. Further discussion took place between counsel and the Arbitrator during which reference was made to the Application with respect to medical expenses (s 60 of the Workers Compensation Act 1987 (the 1987 Act)). Counsel appearing for Ms Anderson stated that, in the event that the application was successful, “there’d probably be a general order and then each one would be looked at by the insurer on its merits”. The appellant’s counsel replied “I think that’s fair” (at T10). The subsequent discussion, as recorded, concerned both the evidentiary material to be admitted and the issues to be determined. It appears that the Arbitrator had concluded that the issues which remained in dispute were those described by her at [4] of Reasons as noted above at [7]. The Arbitrator also stated, “the parties agreed that the claim for medical expenses would follow the outcome of the determination of this issue and there was no dispute as to treatment and expenses being reasonably necessary”. The Arbitrator also noted that Ms Anderson “did not proceed with the claim for weekly compensation at [sic] this determination”.
A perusal of the transcript does not reveal any acceptance by counsel appearing on behalf of Ms Anderson that there was no application seeking an order with respect to s 60 expenses. The consequences of the apparent misstatement by the Arbitrator concerning the relief sought as to s 60 expenses may, if necessary, be addressed following a determination of the merits of the appeal.

Ms Anderson’s evidence

A written statement made by Ms Anderson dated 21 April 2010 is in evidence. It is stated that Ms Anderson is a paramedic by occupation, having joined the appellant on 9 October 1989. She suffered a work related low back injury in August 2000 when lifting a semi-conscious patient who was lying on the floor. She experienced severe lower back pain and sciatica during the lift and ceased duties “immediately after this case”. She received workers compensation benefits and was absent from work for four weeks. Treatment included anti-inflammatory drugs, analgesics and physiotherapy. Ms Anderson returned to full duties. However, she suffered thereafter from intermittent lower back pain and sciatica. It is stated that she “self-managed this pain with anti-inflammatories and analgesics”.
It is further stated that the pain experienced by Ms Anderson increased over time. She noticed that she was unable to sit for extended periods without pain in the back and down her leg. Her back felt increasingly stiff, especially after sitting for any period of time. The pain was more evident when driving the ambulance and was worse when she bent over or lifted heavy items or patients. The statement, at [7], includes a detailed description of Ms Anderson’s day to day duties all of which were physically arduous requiring lifting, manoeuvring into physically awkward positions while attending patients at accident scenes, bending for extended periods and driving the ambulance often for extended periods of time during shifts of 14 hours duration.
Ms Anderson states that on 7 April 2009, whilst on leave from the ambulance service when seated on a lounge chair, she experienced a sudden onset of cramps in her left foot “which were unprovoked”. Over the next few days she developed severe low back pain and sciatica. She attended Milton Ulladulla Hospital on 12 April 2009 at which time she was prescribed morphine and panadeine forte by Dr Ian Tait.
On 24 April 2009 Ms Anderson attended her general practitioner following which a CT scan was arranged. That was conducted on 27 April 2009. She was subsequently referred to Dr Darweesh Al-Khawaja who advised that she required urgent surgery. It is stated that Dr Al‑Khawaja told her that she had an old injury at L4/5 which had now fragmented and there were “disc fragments embedded in the nerve root in my spine. He told me that he could tell from looking at the CT scans that the original injury was not recent. He told me that I had herniated and torn a disc in the past and it had now broken into pieces”. Surgery was conducted by Dr Al-Khawaja at Figtree Private Hospital on 12 May 2009.
Ms Anderson states that the pain in her left leg into her foot “has almost entirely disappeared although I still have pain in the hip area”. It is further stated that she suffers from sciatica and lower back pain on a daily basis which is controlled with the use of analgesics and anti-inflammatories.
A Notification of Injury/Illness signed by Ms Anderson is in evidence. That document is accompanied by an authority signed by her authorising the provision of medical reports. That latter document is dated 6 May 2009. The nature of the injury is described as “large disc herniations/fragmentation @ L4/L5”. The date of the injury is given as 5 May 2009. The injury is described in the following terms, “unknown – advised by neurosurgeon injury is ‘undoubtedly work related’”.
A workers compensation claim form signed by Ms Anderson dated 6 May 2009 is in evidence. The copy which is attached to Ms Anderson’s application is difficult, in part, to read. However, under the heading “injury details” the following is written, “woke with severe back pain/L leg and foot pain/↓ motor/sensory function”. On the second page of that claim form the following matters are recorded:
“According to neurosurgeon initial disc tear occurred some time ago I/C fragmentation now compressing L4/L5 nerve root 2000 – one month w/comp with back pain. In 2000 (Aug) I injured my back and had one month w/comp leave – caused by lifting. ? disc tear then.”
A copy of an “employee’s recurrence report of injury following return to normal duties” form is in evidence. That document, signed by Ms Anderson, is dated 6 May 2009 and includes a notation that the date of “original injury” was August 2000 and that the date “of recurrence” was 5 May 2009. In response to a question in that form “how does this recurrence relate to your original injury/illness?” the following is noted, “original tear of disc at L4/L5 which has now fragmented”. Further questions concerning past history included “when you returned to your normal duties, did you experience any discomfort or symptoms undertaking those duties?” The word “yes” was circled and the following notation was made, “intermittent low back pain”. In response to the question “has your discomfort/symptoms continued?” again the word “yes” was circled and the notation was made “as above – intermittent low back pain”.

In response to a question “in your own words, how did this recurrence occur?” the following notation was made, “woke up with severe pain”.
The expert medical evidence relied upon by Ms Anderson includes a copy of correspondence from Dr Thomson to the insurer dated 18 May 2009. That correspondence is primarily concerned with rehabilitation of Ms Anderson in respect of her psychological injury however reference is made to the subject lumbar spine injury. Dr Thomson states, following a summary of events concerning the psychological injury:
“subsequent to this she has had a disc prolapse at L4/5 requiring emergency surgery. The neurosurgeon has indicated that this has been present for some time and is probably related to a work related incident. At present given her post surgical status and previous psychological status it is unhelpful to continue to be receiving return to work plans which have no basis in reality.”
Also relied upon are a number of WorkCover medical certificates issued by Dr Thomson relating to incapacity resulting from the injury of 22 August 2000. The last of those is dated 30 June 2009.
A report from Dr Al-Khawaja dated 26 August 2010 is in evidence. Dr Al-Khawaja reports that he first saw Ms Anderson on 5 May 2009. The history as recorded in that report is that she presented with left leg pain which had started “four to five weeks prior to her admission. She had sudden left leg pain. It was running around L5 distribution. After that she started getting numbness around the same distribution. She didn’t have that much back pain.” A CT scan of the lumbar spine showed significant disc herniation at L5/S1 causing pressure at left L5 nerve root. There was evidence of disc collapse at L4/5 and L5/S1 levels. A subsequent MRI of the lumbar spine confirmed “left para median disc herniation, which compresses the left L5 nerve root and to a lesser extent the left S1 nerve root.” Surgery was performed by Dr Al-Khawaja on 12 May 2009. The diagnosis expressed in that report was “[an] acute L5/S1 herniation with discogenic disease at L4/5 and L5/S1 levels.” The report also includes the following statement:
“in my opinion the employment of Mrs Andersons [sic] as an ambulance driver has a major impact on her pathology, mainly if she used to drive for a long time without stretching her back and moving her body. In my opinion Mrs Anderson’s acute disc herniation was related to her onset of symptomatology in 2009 but her discogenic disorder at the levels I mentioned earlier is a longstanding problem which may have been aggravated in 2009.”
Ms Anderson relied upon the evidence of Dr Dwight K Dowda, consultant occupational physician, who had been qualified to provide an opinion for the purposes of the litigation. There are two reports, each dated 9 March 2010. Dr Dowda recorded a history of the injury in August 2000. It is noted that “she experienced severe low back pain at that time and there evolved sciatica in her right leg.” Further history as recorded includes an occasion when Ms Anderson was not at work being 7 April 2009 as she was sitting on her lounge at home she developed “unusual cramping sensations in her left foot”. Numbness in the sole of the left foot and paraesthesia extending up the lateral aspect of the left leg evolved. Dr Dowda’s report includes a summary of matters stated by Ms Anderson being matters stated to her by Dr Al-Khawaja, “he said on viewing her imaging studies ‘it’s bad’. He commented on there being old injury with calcification of a prolapsed disc and he suggested that it had sequestered with fragments impacting the nerve root.” Dr Dowda did not have an operative report from Dr Al-Khawaja. Ms Anderson reported to Dr Dowda, as recorded by him, that:
“two large sequestered fragments of disc material were removed from the spinal canal at operation. She also stated that Dr Al-Khawaja had identified calcification and suggested to her that it was old injury, noting that his surgery was conducted just on a month after the onset of symptoms she experienced in her back and left leg”.
Dr Dowda noted that Ms Anderson provided a history “of continuing symptoms in the lower back intermittently from [August 2000] with right sided sciatica persisting through to the present day”. Dr Dowda observed that it was unfortunate that documentation in his possession did not include an operative report from Dr Al-Khawaja. He acknowledged that “this would be helpful to ascertain the exact nature of the disc and the disc material that was apparently sequestered and pressing upon her L5 roots”. Concerning the question of causation of Ms Anderson’s lumbar symptoms, Dr Dowda stated (at page 7):
“It is possible that Ms Anderson had disc damage in the initial injury of August 2000. It is possible (though not able to be confirmed in the absence of any contemporaneous imaging studies) that there was L4/5 disc abnormality occasioned by the accident of August 2000.
The sudden precipitation of left lower extremity pain and ultimately sensory loss and weakness due to sequestrated fragments of the L4/5 disc, although nine years from the time of the original accident (2000), in the absence of any obvious precipitating event (no specific injury to the lower back in April 2009) may well represent the ultimate sequestration of a degenerate disc which had its origin in the injury in August 2000. As I have stated above, the operative notes may well be helpful in determining the ‘old’ nature of the degenerative disc material that has been sequestrated, as it is hardly likely that there was an acute disc herniation in April 2009 leading to sequestration of the disc within approximately a month.
Thus, it is my opinion that although considerably separated in time from the original injury of August 2000, it can be argued that disc injury in August 2000 at L4/5 has ultimately led to a degenerate disc which has sequestrated fragments that in April 2009 led to the episode that ultimately led to her surgery.”
Dr Dowda, in response to a question put to him by Ms Anderson’s solicitors, further stated:
“4. Your opinion as to whether you believe Ms Anderson’s back injury as alleged was essentially [sic- substantially] contributed to by her employment with the Ambulance Service of NSW.
For the reasons I have given above in detail, prior to the specific responses to these questions, my opinion is that it is possible that Ms Anderson’s injury in August 2000 injured her L4/5 disc with the ongoing history of intermittent back pain and right sided sciatica from that time suggesting abnormality of the L4/5 disc. The episode of left lower extremity symptoms in April 2009 ultimately leading to a requirement for surgery may have been due to sequestration of the degenerate disc that had been damaged in August 2000.
Thus, I believe that although separated in time by almost nine years, in the absence of any other identified trauma to the lumbar spine and in the presence of clearly identified injury in August 2000 with a history suggesting ongoing irritation of the L4 disc causing right sided disc irritation, it is not unreasonable that a sequestrated fragment dislodged and impacted upon the L5 nerve root.
Thus, I would suggest that Ms Anderson’s back injury was substantially contributed to by her employment by the Ambulance Service of NSW.”
Ms Anderson tendered in evidence a copy of a notice issued pursuant to s 74 of the 1998 Act dated 15 July 2009 forwarded to her by the appellant’s insurer. That notice, it is to be noted, was in response to Ms Anderson’s erroneous allegation of relevant injury having occurred on 17 October 2008. A report of Dr John O’Neill, consultant neurologist was attached to that notice and is also in evidence before the Commission. Dr O’Neill examined Ms Anderson on behalf of the insurer on 26 June 2009. The history recorded by Dr O’Neill was that Ms Anderson had experienced cramping of the left foot on four or five occasions on 7 April 2009. Ms Anderson also reported that the following day she woke with low back pain which had been worse than ever experienced “with her previous recurrences, and on this occasion, for the first time, pain radiated into the left leg.” Dr O’Neill had earlier recorded the history of injury occurring on 22 August 2000 following which Ms Anderson “remained prone to intermittent pain in the lower back with radiation down the right leg. She said that she managed such aggravations of pain with other simple analgesics or anti-inflammatories at the time. She could not recall further medical consultations or time off work.” Dr O’Neill recorded the subsequent history of treatment including surgery.
Dr O’Neill addressed in his report the question of “causation/liability” as follows:
“Work is clearly not responsible for the sudden acute onset of severe low back and left leg pain (with associated neurological deficits) which has occurred on or about 7 April 2009.
It would have to be said, however, that Mrs Anderson had been prone to episodic mechanical low back and right leg pain since the work incident of 22 August 2000, so that there would be a pre-existing contribution (of at least 10%) to the development of the sudden acute disc prolapse at L4/5 on our about 7 April 2009. In other words, there is a proportion of liability to the current situation as a consequence of the original work incident on 22 August 2000.”
A report from Huxley Hill Group addressed to the appellant’s insurer dated 24 June 2009 was attached to the s 74 notice and is in evidence before the Commission. That report is concerned with circumstances surrounding Ms Anderson’s claim against the appellant in respect of an alleged post traumatic stress disorder. The report includes a statement by Ms Anderson dated 16 June 2009 in which reference is made to her back disability. Ms Anderson describes her back injury which occurred in 2000 and that she had, following that incident, “some pain in the lower back over the years but not enough to have to go to the doctor.” Her description of the onset of significant pain in April 2009 is recorded in the statement and her treatment is briefly described. It is also stated “my surgeon said it was an old injury and the only time I have ever hurt my back was through work in 2000.”

Appellant’s evidence

The appellant relies upon a great many documents which had been tendered on behalf of Ms Anderson. It appears that, following amendment by Ms Anderson of her allegation of injury, the appellant was granted leave to issue notices for production. Documents included material produced by Dr Thomson. A letter of referral from Dr Thomson to Dr Al-Khawaja is in evidence. In that correspondence dated 30 April 2009 Dr Thomson summarises the radiological investigations he had arranged and stated:
“although employed as an ambulance officer Michelle has been on extended leave so this is not related to an acute work-related injury. It is possible that she has injured her back in the past. At this stage we would not anticipate this to be a workers compensation injury.”
There is a copy of correspondence dated 5 October 2009 from Dr Thomson to his colleague Dr George who, it seems, had been requested to provide treatment in relation to Ms Anderson’s psychological injury. That correspondence includes a history of the development of “sudden onset severe back pain” following which Ms Anderson was found to have a prolapsed disc. Dr Thomson observes in that correspondence that “the surgeon attributed this to a work-related injury. This is compounded [sic] her relationship with the ambulance service and return to work plans (which just keep on coming).”
There are two items of correspondence from Dr Al-Khawaja to Dr Thomson. The first appears to be dated 15 May 2009. There is no notation of a detailed history in that report. Dr Al-Khawaja does state “she has got a significant disc disease at L4/5 (can be called L5/S1 because she has got sacralization of L5). There is a disc fragment pushing against the left L5 nerve root.” The second report, dated 16 June 2009 confirms that microdiscectomy had been conducted. No operative findings are recorded in that report and it is clear that the correspondence intended to address prognosis and rehabilitation.
There are in evidence three extracts from progress notes relating to treatment of Ms Anderson at the practice of Dr Thomson. The first attendance noted in those extracts is 24 April 2009 when Ms Anderson was attended by Dr Meike Flore, a colleague of Dr Thomson. The history recorded is “left leg pain for over two weeks”. The next record which is in evidence relates to an attendance on 30 April 2009 at which time Ms Anderson was attended by Dr Thomson. Under the heading “history” the following is recorded:
“problem recently with some numbness in her left leg. CT scan shows at L45 there is a large posterior left para central disc herniation that he effaces the anterior thecal sac.
Although employed as an ambulance officer Michelle has been on extended leave so this is not related to an acute work-related injury. It is possible that she has injured her back in the past at this stage we would not anticipate this to be a worker’s compensation injury.
Given her a (sic) sensory changes in her left leg and weakness and a demonstrable lesion on CT scan increase (sic) if you could review her relatively early to consider whether further intervention may be helpful. Michelle has private health insurance which may facilitate intervention if required.”
The third and final extract from Dr Thomson’s records which is in evidence relates to an attendance of 18 May 2009 at which time the following further history is recorded:
“Michelle has recently had an L 4/5 discectomy performed. The neurosurgeon has suggested to her that the prolapsed disk [sic] having been there for many years was now undergoing breakdown process Michelle recalled having an injury on 22^nd of August 2000 at that time she saw Dr. Herbie Chee and had about one month off work. When I reviewed Michelle on 30^th of April, I noted that she did not wish to make this a worker’s compensation injury and that it was not related to an acute injury during her time off work. Given Michelles [sic] situation with regard to complex workers compensation issues at present on that day. She elected not to go down the workers compensation route. I completed an initial workers compensation certificate today to alert the employer to the nature of this injury and see if it complies for WorkCover purposes. We also received advice from GIO that they had been unable to contact myself or Michelle to discuss return to work plan. I have been at pains to ask GIO to assist us with some sort of rehabilitation plan, although I think that standard rehabilitation is unlikely to succeed with this woman. Her back injury and subsequent surgery now makes a return to ambulance duties even more unlikely. I wrote to GIO insurance today to challenge the veracity of their claims that myself and Michelle were not contactable.”
A copy of correspondence from the appellant’s solicitors to Ms Anderson’s solicitors dated 27 August 2010 is in evidence. This correspondence appears to be intended as an amendment to the s 74 notice earlier issued by the insurer. The amendment of the dispute notice, it is stated in the correspondence, was occasioned by reason of the amendment to the allegations of injury which were sought and granted in the course of a telephone conference conducted on 26 July 2010. I note that the second and fourth pages of that correspondence have not been included. This oversight has not been the subject of any submission by either party nor did the Arbitrator make any observation in the course of her reasons concerning the absence of those pages. The matters raised in that correspondence are, where relevant, addressed below.
A number of documents relevant to the claim made by Ms Anderson in respect of the injury which occurred in 2000 are in evidence. Those documents include an x-ray report addressed to Dr Chee by Dr Raymond Lau dated 28 August 2000 that relates to an examination of the lumbar spine and the report is as follows:
“There is a mild lumbar scoliosis convex to the right side. There is a transitional vertebra at the lumbosacral junction with five lumbar type vertebra above it. The disc spaces are well preserved. There is no evidence of spondylosis. The bony pedicles are in tact. The sacroiliac joints are normal.”
A copy of a statement by Mr Michael Mastronardi dated 24 June 2009 is in evidence. Mr Mastronardi is the station manager, NSW Ambulance Service – Ulladulla. Mr Mastronardi states that he is aware that Ms Anderson received a back injury in the course of her employment in August 2000. However, he is unable to remember how that injury occurred. He states that Ms Anderson was off work for about one month and that following her return to work he heard no more “until recently” when he heard that Ms Anderson was going to have a back operation. It is further stated that Ms Anderson performed her duties without incident until she went on maternity leave on 3 March 2007. The balance of the matters addressed in this statement address the circumstances of Ms Anderson’s allegation of post traumatic stress disorder.
The balance of the documentary evidence tendered on behalf of the appellant is of no direct relevance to the issues raised on this appeal.

Submissions before the Arbitrator

Argument advanced on behalf of Ms Anderson was founded upon the appellant’s acceptance that she had received an injury to her lumbar spine in the course of employment in the year 2000. It was put in argument that incapacity had resulted from that injury and had persisted however was not “reflected economically from 2000”. It was put that the evidence supports an inference that the condition suffered by Ms Anderson worsened until the onset of symptoms in 2009 which required surgical intervention. Reliance was placed upon the opinions expressed by Dr Dowda. Reference was also made in the course of argument to the opinion expressed by Dr Al-Khawaja concerning the relevance of Ms Anderson’s work duties to causation of the pathology which was revealed on surgery. It was suggested by counsel that there had been a typographical error in the report of Dr Al-Khawaja dated 26 August 2010. It was put that the date “2000” was intended by the author of that report where the date “2009” first appears in the second last substantive paragraph of the report. It was said that the paragraph should open with the following words, “in my opinion Mrs Anderson’s acute disc herniation was related to her onset of symptomology in 2000…”. It was acknowledged by counsel that the form of the reports which constituted the evidence of the treating specialist was not “helpful”.
It was argued that the evidence of Dr O’Neill supports the proposition that there is a causal nexus between the injury received in August 2000 and the development of the sudden acute disc prolapse on or about 7 April 2009. Reference is made to the estimate that the injury in 2000 had at least a 10 per cent contribution to the pathology identified in 2009. It is put that such an estimate would satisfy the provisions of s 9A of the 1987 Act concerning employment being a substantial contributing factor to injury. It is noted in the course of submissions that Dr O’Neill has not addressed “the effect of the duties which [Ms Anderson]… performed subsequent to 2000 when the pain over time increased”.
The relief sought by Ms Anderson was noted earlier in submissions when counsel made the observations concerning the application in respect of s 60 expenses which I have noted at [19] above.
Counsel appearing on behalf of the appellant opened his submissions before the Arbitrator with a series of “objections” to certain parts of the evidence which had earlier been admitted by the Arbitrator. Those objections related to, what were described as, hearsay evidence concerning the findings made in the course of the surgical procedure as described by Dr Al‑Khawaja. Whilst argument was advanced concerning the question of admissibility of that evidence it is to be noted that no ruling was made by the Arbitrator concerning the arguments as advanced by counsel. The transcript records the Arbitrator responding to these arguments with reference to the “weight” of the evidence identified by counsel.

An argument was advanced that the evidence of Dr Chee who expressed the opinion that Ms Anderson was, in 2000, suffering from acute lumbo-sacral strain, was of relevance in assessing the significance or otherwise of the injury which occurred in that year. Counsel emphasised that the radiological evidence, being an x-ray taken at the time, demonstrated no disc pathology and no evidence of any degenerative change.
It was put in argument that the onus was upon Ms Anderson to establish the causal relationship between the injury in 2000, subsequent work duties and the later prolapse of the disc. It was put that there was no evidence adduced by her which would corroborate her statements concerning the continuation of symptoms following the injury in 2000. Reference was also made to the evidence of Dr Dowda and it was put that the onus of proof concerning the relevance of the 2000 injury is not discharged by the matters stated by that practitioner in his report.
Counsel noted in submissions that the treating surgeon had no history concerning the occurrence of the injury in 2000. It was also emphasised that there is no acknowledgement by that witness concerning Ms Anderson’s absence from work since October 2008. The deficiencies suggested by counsel constituted a flaw in the evidence and it was put that the opinions expressed “offends” the principles expounded in the decision of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita).
It was put on behalf of the appellant that the argument advanced by Ms Anderson concerning the existence of a typographical error in the report of Dr Al‑Khawaja should be rejected. With respect to the evidence of Dr O’Neill the argument was advanced that such evidence was founded upon an assumption of a continuation of symptoms being experienced by Ms Anderson following the injury in 2000 and that such fact had not been established. It was also argued that it was relevant to take into account the apparent ability of Ms Anderson to effectively and efficiently perform her duties up until the occurrence of her psychological injury in 2008.

The Arbitrator’s Decision

The Arbitrator in the course of her Reasons correctly identified the issue for determination as being the question as to whether “the 2009 pathology and need for surgery in [Ms Anderson’s] lumbar spine [was] causally related to the injury of 22 August 2000 and the nature and conditions of [Ms Anderson’s] employment with [the appellant] since August 2000”. The Arbitrator proceeded to summarise the lay and medical evidence which was before the Commission. The Arbitrator appears to have accepted Dr O’Neill’s opinion that there was a “sudden acute disc prolapse at L4/5 on or about 7 April 2009” (at [21]). The Arbitrator proceeded to state (at [22]):
“The injury did not occur at or in the course of employment, s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act) however s 4 also defines a work injury as including a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, s 4(b)(i).”
The Arbitrator then expressed her acceptance of the evidence of Ms Anderson concerning the perpetuation of symptoms following the injury received in 2000 notwithstanding the absence of any corroborative evidence concerning those matters. The Arbitrator proceeded to determine (at [26]):
“I therefore find that the injury in August 2000 on the balance of probabilities caused the onset of a discal disease and that the nature and conditions of the applicant’s employment contributed substantially to her ongoing deterioration culminating in the acute disc herniation of April 2009”.
The Arbitrator proceeded to summarise her findings and stated (at [27] and [28]):
“The injury in August 2000 and the nature and conditions of the applicant’s employment caused a long standing discal disease to the applicant’s spine at L4/5 and L5/S1 levels which was on the balance of probabilities aggravated in 2009 resulting in an acute herniation at L5/S1.
The injury in August 2009 is therefore an injury under section 4 b) 1) [sic] of the Workers Compensation Act 1987 and the applicant’s employment is a substantial contributing factor to her injury.”
The Certificate of Determination, as noted at [8] above, reflects the findings which were summarised by the Arbitrator at [27] and [28] of her Reasons. No express order was made with respect to Ms Anderson’s application concerning payment of s 60 expenses.

SUBMISSIONS

The appellant in its submissions in support of this appeal challenges each of the findings as stated in the Certificate of Determination dated 5 October 2010. It is put that in so finding the Arbitrator has erred in law. That error is said to have been made given the:
“absence of any contemporaneous evidence and/or notifications of injury and/or compensation claims that corroborates [sic] [Ms Anderson’s] current allegations that she suffered any [sic] recurrence and/or aggravation of that injury and/or a disease of gradual onset that was caused etc as a result of the nature and conditions of her employment from 22 August 2000 until 17 October 2008”.
It is further argued that the Arbitrator’s findings were made notwithstanding the suggested absence of any medical evidence which would discharge the onus of proof upon the applicant to establish that it was more probable than not that there was a causal nexus between the disc pathology that was diagnosed and which required surgery in May 2009 and the frank injury that she suffered at work on 22 August 2000.
It is submitted that the findings were made notwithstanding the absence of medical evidence, founded upon an accurate history, that was capable of establishing a nexus between the injury in 2000 and the subsequent nature and conditions of employment and a disease of gradual onset such that employment was a substantial contributing factor to the disc pathology diagnosed in 2009.
It is argued that there was error committed by the Arbitrator in determining that Ms Anderson had suffered a disc injury at the L5/S1 level given the absence of any clinical or radiological evidence of such an injury. It appears that the Arbitrator’s findings are also challenged upon the basis that they “were based on a finding of credit in favour of [Ms Anderson]”.
The appellant’s submissions proceeded to highlight particular tracts of the Arbitrator’s reasons and criticism of her reasoning process is advanced. With respect to the evidence of Dr O’Neill it is argued that any reliance placed by the Arbitrator upon that evidence demonstrates error given that Dr O’Neill relied upon “facts that had not been proved to the required standard of proof”. Reliance is placed upon the decision in Makita.
It is further argued that the Arbitrator’s reliance upon the evidence of Dr Al-Khawaja demonstrates error given that no history of injury in 2000 had been given to that practitioner nor had any history been given of “alleged recurrence/aggravation” following resumption by Ms Anderson of normal duties in September 2000. The evidence of Dr Al-Khawaja was also criticised upon the basis that there was no statement by that witness that the disc pathology diagnosed in 2009 was more probably than not causally related to the injury in 2000. The appellant also seeks to emphasise that Dr Al-Khawaja does not appear to acknowledge in his evidence that Ms Anderson had not driven an ambulance “for several months prior to April 2009 and that she had not worked for [the appellant] since 17 October 2008”. Again reliance is placed upon the principles as enunciated in Makita. Reference is also made to the evidence of Dr Lau’s x-ray report dated 28 August 2000 which is stated to demonstrate “no evidence of focal disc pathology” and it is suggested that, in her Reasons, the Arbitrator had “failed to appreciate that there was no radiological evidence proving the existence of any focal disc pathology or ‘discal disease’ at any time before [Ms Anderson] ceased work”. Reference is made to the evidence of radiological studies and it is put that the Arbitrator’s finding/ determination of a disc prolapse at the L5/S1 level “is not supported by any medical evidence”.
It is argued that the Arbitrator has misdirected herself “by proceeding to determine the dispute in relation to injury, or more particularly, the ‘causal nexus’ issue as an issue of credit”. The submissions again contain a summary of certain aspects of the evidence following which reliance is placed upon the decision of the Commission in Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland). The findings of Keating P in the matter of Ireland were cited following which it was put that a “determination of whether or not an injury occurred must be based on objective evidence.” It is asserted that there is no such objective evidence and that the Arbitrator had acknowledged that absence. The deficiencies of the evidence and suggested inconsistencies are summarised at [30] of submissions. Again reliance is placed upon the decision of Makita.
The appellant’s submissions again seek to emphasise deficiencies in the evidence presented on behalf of Ms Anderson. In particular the absence of corroborative evidence concerning her experience of ongoing pain and disability following the 2000 injury. Reliance is placed upon the decision in Jones v Dunkel [1959] HCA 8; 101 CLR 298 and it is put that Ms Anderson’s failure to present “readily available evidence” permits an inference to be drawn that such evidence would not assist her case. The relief sought by the appellant is that the findings made by the Arbitrator be set aside.
Submissions provided on behalf of Ms Anderson seek to support the factual findings made by the Arbitrator and to refute the arguments as advanced concerning the weight ascribed by the Arbitrator to the medical evidence.
Reference is made to the appellant’s reliance on the decision in Ireland and argument is advanced that the facts and circumstances of that case may be distinguished from the present. It is also argued that it would be “unjust to allow this appeal” given that “injury was not a matter in issue between the parties, it not having been raised in the s 74 notice or the original Reply”.
The appellant, on 20 December 2010, forwarded to the Registry a document containing submissions in response to Ms Anderson’s Opposition to the appeal. Those submissions, in many respects, repeat the matters raised on behalf of the appellant in earlier argument both before the Arbitrator and on this appeal.

DISCUSSION AND FINDINGS

Much of the argument advanced on behalf of the appellant is a reiteration of matters raised during the course of submissions before the Arbitrator. Whilst it is asserted that the findings made by the Arbitrator are vitiated by error on the part of the Arbitrator in point of law, a careful analysis of the arguments as advanced demonstrates that the thrust of the appellant’s argument is that those findings were made against the evidence and the weight of the evidence. It is also asserted that the Arbitrator has erred given her determination of the question of “causation” of the pathology demonstrated in 2009 by reference to the credibility or otherwise of Ms Anderson’s evidence concerning the perpetuation of symptoms following the 2000 injury.
The Arbitrator’s approach to the question requiring determination which had been correctly noted by her at [4] of Reasons is significantly confused having regard to her apparent finding at [22] which I have noted at [56] above. The Arbitrator at [22] appears to be referring to that which occurred in April 2009. There is evidence to suggest that at that time a disc located in Ms Anderson’s lumbar spine prolapsed causing sequestration of the disc material and subsequent compression upon a nerve root (or perhaps two nerve roots). That is not the injury alleged by Ms Anderson. Her allegation, properly understood, is that the prolapse occurring on that occasion was causally related to the frank injury which occurred in 2000 and the strenuous physical activity performed by her in the course of her employment between the date of her return to work in September 2000 up until she last worked in 2008. I note in passing that a proper evaluation of the evidence in this matter requires an acknowledgement that Ms Anderson did not perform any duties with the appellant beyond 3 March 2007 other than part-time work for a period of one week in October 2008. It is Ms Anderson’s allegation that the combined effect of the frank injury and her work duties caused and/or aggravated damage to a disc in her lumbar spine which, in the course of time, gave rise to a degenerative process within that disc and that the occurrence of the prolapse and subsequent sequestration in 2009 was a direct consequence of such injury and the progress of that disease process. Whilst the findings made by the Arbitrator address the allegation as I have attempted to summarise, her statements in the course of Reasons at [22] give rise to a need, I consider, to review the evidence with a view to determining the correctness or otherwise of her ultimate findings.
The task confronting the Arbitrator and the Commission on this appeal has been rendered difficult given the absence of any evidence concerning the operative findings made by Dr Al‑Khawaja in May 2009. This deficiency in the evidence has been acknowledged by counsel appearing on behalf of Ms Anderson in the course of his submissions before the Arbitrator. Whilst there are three reports in evidence provided by that practitioner, the question as to the relevance of the admitted trauma to the lumbar spine suffered by Ms Anderson in 2000 is not addressed. Indeed, Dr Al-Khawaja, as noted by the appellant in the course of it submissions on this appeal, has no record of such injury. On one view of the evidence, the absence of such a history being given to Dr Al-Khawaja may be explained given that particular attention was given to past history only post-operatively, in particular during a consultation with Dr Thomson on 18 May 2009. It was on that occasion that Ms Anderson recalled “having an injury on 22 August 2000 at that time she saw Dr Herbie Chee and had about one month off work”. The failure on the part of those acting on behalf of Ms Anderson to clarify the history with Dr Al-Khawaja and the failure to adduce evidence as to the operative findings and any inferences that may be drawn from those facts concerning the question of causation, gives rise in the present matter to a problem similar to that which was highlighted by Tobias JA in Brambles Industries Limited v Bell [2010] NSWCA 162 where it was stated (at [25]-[27]):
“Section 352(6) of the WIM Act empowers the Commission, which includes the Deputy President, to grant leave for the adducing of fresh evidence. However no such application was made for such leave by any party in the present case. It is not unusual in cases such as the present, as well as in personal injury cases in the District Court, for medical reports to be tendered without any oral evidence being called from the authors of those reports, whether to supplement their contents or to challenge the opinions expressed.
The result is that the judicial officer hearing the case is unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified. The costs of obtaining a supplementary medical report will pale into insignificance against the costs of litigation resulting from a failure to carefully consider the relevant evidence in a timely and efficient manner.
The present case should serve as a lesson and, hopefully, a wake-up call to those who practice in the personal injury area, to ensure that if no oral medical evidence is to be called and reliance is to placed solely upon medical reports, that those reports are clear in the opinions expressed and that the reasoning supporting those opinions is complete. That would avoid appeals of the nature of that in the present case with consequent saving of costs to the parties and court resources.”
In the present circumstances the Commission must, as stated by his Honour, “do its best” given the state of the evidence. What is clear from the evidence of Dr Al-Khawaja is that his diagnosis, expressed following the surgery as found in his report of 26 August 2010 was “the diagnosis of Mrs Anderson’s condition is acute L5/S1 herniation with discogenic disease at L4/5 and L5/S1 levels”. The procedure conducted by Dr Al-Khawaja was “L5/S1 keyhole microdiscectomy”. Whilst, as earlier noted, there is no evidence of that practitioner’s operative findings, the pre-operative MRI demonstrated disc herniation which compressed the left L5 nerve root and to a lesser extent the left S1 nerve root. It is of some significance that Dr Al-Khawaja concluded, following a viewing of a CT scan pre-operatively, that there was evidence of disc prolapse at L4/5 and L5/S1 levels. As earlier noted post operatively the diagnosis was that of acute L5/S1 herniation with discogenic disease at L4/5 and L5/S1 levels.
On any view of the medical evidence the need for surgery which arose in 2009 came about by reason of sequestration of disc material causing pressure on nerve roots. This has been identified as an “aggravation” which occurred without there being evidence of any trauma or other precipitating factor.
Both Dr Dowda and Dr O’Neill have expressed the opinion that there exists a causal nexus between the trauma in 2000 and the development of the acute disc prolapse in April 2009. It is clear from the evidence of those practitioners that they have placed reliance upon Ms Anderson’s statement of ongoing symptoms following the 2000 incident in reaching that conclusion. It is important to note that neither of those practitioners address the relevance, or otherwise, of Ms Anderson’s ambulance driving and other duties to the question of causation. A significant aspect of the evidence of Dr Al-Khawaja is to be found at page two of his report dated 26 August 2010 where he states “in my opinion Mrs Anderson’s acute disc herniation is related to her onset of symptomatology in 2009 but her discogenic disorder at the levels I mentioned earlier is a long standing problem which may have been aggravated in 2009”.
The observation made by Dr Al-Khawaja as to the “long standing” character of the disorder in Ms Anderson’s lumbar spine tends, in my view, to be consistent with the view as expressed by Dr Dowda that “it is hardly likely that there was an acute disc herniation in April 2009 leading to sequestration of the disc within approximately a month”. What Dr Dowda was alluding to then, I infer, was the likelihood that the condition of the lumbar disc was of long standing.
The principal argument raised on behalf of the appellant on this appeal is that the Arbitrator erred in her acceptance of Ms Anderson’s evidence concerning the continuity and persistence of symptoms following the 2000 injury. It is correct, as highlighted by the appellant, that her evidence has not been corroborated in any respect. It is plain that, should her evidence on that matter be rejected, the basis of the opinions expressed by Dr O’Neill and Dowda falls away. Their evidence would, as a consequence, be of no weight concerning the question of causation. In the circumstances it is proposed to examine the correctness or otherwise of the Arbitrator’s acceptance of Ms Anderson’s evidence concerning perpetuation of symptoms.
As noted earlier the appellant has placed reliance upon the decision of Keating P in Ireland. That decision concerned a question as to proof of the occurrence of a back injury in circumstances where the evidence established that the first record of any such injury was made some three years following the alleged occurrence. His Honour in the course of his Reasons, which have been set forth in the body of the appellant’s submissions, paid particular attention to the manner in which a tribunal of fact addresses the question of onus of proof. Following a consideration of the authorities as summarised by McDougall J in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (16 October 2008) (Nguyen) his Honour concluded that the Arbitrator had “wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone” (at [91]). His Honour further found that the Arbitrator had:
“erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case”.

The heavy reliance the appellant places upon the decision in Ireland fails to acknowledge that the question as to whether the onus of proof has been discharged by a party bearing that burden is one to be determined on the facts of a given case. Whilst it is correct, as asserted in argument, that consideration was given in Ireland to those matters requiring attention before a fact finder is persuaded as to the occurrence or the existence of a fact in issue, there is no general principle that a disputed fact cannot be established upon the basis of uncorroborated evidence of one witness. As was stated by McDougall J in Nguyen following a consideration of relevant authority (at [48]):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the events having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion”.
Having regard to the state of the evidence in the present matter it was open to the Arbitrator to either accept as fact, or reject, that evidence of Ms Anderson concerning the perpetuation of symptoms following the 2000 injury. The mere absence of corroboration does not, as seems to be asserted by the appellant, preclude acceptance of that evidence. The obligation upon a fact finder is to consider the totality of the evidence to determine whether its effect has given rise to an actual persuasion of the existence of the fact in issue. It is clear that the Arbitrator was so persuaded. That conclusion, in my view was open to the Arbitrator on the evidence and is a conclusion with which I respectfully agree. In so concluding I have taken into account Ms Anderson’s statement that her ongoing difficulties caused problems in her lower back together with pain radiating into the right leg. Had the history of ongoing difficulty following the 2000 injury been a matter of recent invention, one might expect there to be a correlation between those ongoing complaints and the complaint of left sided sciatica which manifested in 2009 and led Ms Anderson to seek urgent treatment. I note in passing that in concluding that Ms Anderson has been honest in her evidence on this point I have not had regard to that evidence where she has repeated, in her statement or to those practitioners consulted by her, matters allegedly stated to her by her treating surgeon Dr Al-Khawaja.
The appellant draws attention to Ms Anderson’s evidence concerning the persistence of symptoms which is to be found at [6] of her statement dated 21 April 2010. It is suggested that there is inconsistency between that evidence and the history she reported to Dr Dowda. Having considered the contents of Dr Dowda’s report I am not persuaded that there is any inconsistency demonstrated as asserted by the appellant. Whilst it is true, as noted by the appellant in submissions, that Ms Anderson did not identify which leg had been affected during those years when making her statement, it is recorded at page three of Dr Dowda’s report that she had experienced “intermittent low back pain and sciatica involving the right leg thereafter”. The evidence clearly establishes that the sciatic pain giving rise to the need for urgent treatment affected the left leg and it is significant, in my view, that post surgery the evidence establishes that the right sided sciatica persists. That evidence of persistence of the right sided sciatica is another feature of Ms Anderson’s evidence that has led me to accept the truth of her evidence concerning the persistence of her symptoms.
The appellant appears to attach significant importance in challenging Ms Anderson’s allegation as to causation that there is an absence of “reliable evidence” that she suffered “any symptoms in her left leg as a result of [the 2000 injury and/or the nature and conditions of employment]” [submission [30(k)]]. However, that has never been alleged by Ms Anderson. Her case is founded upon the proposition that the 2000 injury caused, in addition to the strain as diagnosed at that time, derangement of at least one vertebral disc as evidenced by her experience of right sided sciatica. That state of the disc, by reason of subsequent wear and tear occasioned by the physical demands of life including, significantly, her arduous work conditions, caused prolapse of the disc with sequestration of disc material causing pressure on the nerve roots giving rise to left sided sciatica. That acute state occurred without traumatic incident and it is Ms Anderson’s case that her employment was a substantial contributing factor to the injury in 2000, aggravation of resultant disease and those consequences including prolapse in 2009.
I have earlier found that Ms Anderson did, as alleged by her, suffer persistent symptoms following the 2000 injury (at [80]). The resolution of that matter of dispute is a different question to the question as to the probability or otherwise of there being a causal relationship between the 2000 injury combined with nature and conditions of employment and the pathology identified in 2009.
The state of the medical evidence, as I have earlier observed (at [72]) is unsatisfactory given the absence of any evidence from Dr Al-Khawaja as to his operative findings. There is evidence, admitted by the Arbitrator over objection, of such matters found in the report of Dr Dowda dated 9 March 2010 at page four. Dr Dowda there repeats matters told to him by Ms Anderson which had allegedly been said by Dr Al-Khawaja to her, that is that “two large sequestered fragments of disc material were removed at operation and that calcification had been identified and it was said ‘that it was old injury’”.
The appellant also objected to evidence in that report by Dr Dowda being a record of matters said to have been stated to Ms Anderson by Dr Al-Khawaja concerning the pre-operative findings as reported in imaging studies. That evidence concerned reported comment by Dr Al-Khawaja that there was an “old injury with calcification of a prolapsed disc. [Dr Al‑Khawaja] suggested that it had sequestered with fragments impacting the nerve roots”.
The evidence of Dr Al-Khawaja establishes, and I accept, that the imaging revealed pre-operatively, “significant disc herniation at L5/S1 causing pressure at left L5 nerve root. There was evidence of disc collapse at L4/5 and L5/S1 levels” (CT scan) and “left paramedian disc herniation, which compresses the left L5 nerve root and to a lesser extent the left S1 nerve root”.
The appellant took objection to evidence similar to that which I have just summarised at [84], which in submissions was characterised as “hearsay” evidence, as found in the factual report of Huxley Hill Group dated 24 June 2009 and the report of Dr Brett Thomson dated 18 May 2009.
The evidence of Dr Al-Khawaja does not establish that there was present an “old injury” nor that there was calcification present. I have, as noted at [80] above, not taken into account that evidence to which objection had been taken by the appellant. I have reached the conclusion that evidence of any matter said to have been stated by Dr Al-Khawaja which is not confirmed in his own evidence is of such little weight that it should be disregarded. In that respect I accept the arguments as advanced on behalf of the appellant concerning the probative value of such evidence.
It is to be noted that Dr Dowda emphasised in his evidence the “unfortunate” absence of an “actual operative report”. He stated that such documentation may well be helpful “in determining the ‘old’ nature of the degenerative disc material that has been sequestrated”. It is reasonably clear that Dr Dowda draws an inference that Ms Anderson’s condition related to an “old” injury, in part, upon the basis that, as he states, “it is hardly likely that there was an acute disc herniation in April 2009 leading to sequestration of the disc within approximately a month”.
I have reached the conclusion that Dr Dowda’s opinion as to the causal nexus between the 2000 injury and the pathology treated in 2009 was expressed cautiously and in the full knowledge that operative notes were not available. I do not accept the appellant’s argument that the weight of Dr Dowda’s evidence must be discounted by reason of the recorded comments made by Ms Anderson regarding matters told to her by Dr Al-Khawaja.
The opinion of Dr O’Neill summarised at [37] above has been expressed without his having any detail of operative findings, nor is there recorded any report by Ms Anderson in the course of history taking of what may have been told to her by the treating surgeon.
The expert medical evidence, which I accept, establishes the following matters:
(a)     It is possible that Ms Anderson had disc damage in the initial injury of August 2000 (Dr Dowda);
(b)     Ms Anderson’s left leg pain experienced following sequestration of fragmented segments of the L4/5 disc “may well represent the ultimate sequestration of a degenerate disc which had its origins in the injury in August 2000” (Dr Dowda);
(c)     It “can be argued” that disc injury in August 2000 at L4/5 has ultimately led to a degenerate disc which has sequestrated fragments that in April 2009 led to the episode that ultimately led to [Ms Anderson’s] surgery (Dr Dowda);
(d)     The work incident of August 2000 has made a “pre-existing contribution (of at least 10 per cent) to the development of the sudden acute disc prolapse at L4/5 on or about 7 April 2009” (Dr O’Neill);
(e)     Ms Anderson’s acute disc herniation was related to her onset of symptomatology in 2009 but her discogenic disorder at the levels [L4/5 and L5/S1] is a long-standing problem which may have been aggravated in 2009 (Dr Al-Khawaja), and
(f)      Ms Anderson’s employment as an ambulance driver had a major impact on her pathology (Dr Al-Khawaja).
There is no evidence to refute the opinions which I have accepted and attempted to summarise. Notwithstanding the arguments advanced by the appellant I, following a consideration of the evidence in its totality, am comfortably satisfied that it is more probable than not that the pathology requiring treatment in 2009 was causally related to both the occurrence of injury in 2000 and the performance by Ms Anderson of her arduous duties as a paramedic thereafter up to 2007 and later in 2008. Ms Anderson’s employment, I find, was a substantial contributing factor to the occurrence of injury in 2000 and the initiation of the degenerative process at the lumbar level of the spine. The deterioration of that condition subsequently was contributed to by the physical demands of her work as a paramedic and I find that her employment was a substantial contributing factor to the aggravation of that degenerative disease. In reaching those conclusions I have had regard to that which was stated in Malec v JC Hutton Pty Limited [1990] HCA 20; 169 CLR 638 per Deane, Gaudron and McHugh JJ (at 642-643) which had been cited by Keating P in Ireland:

“A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”

It may be seen that I have reached a conclusion which is consistent with that as stated by the Arbitrator at [26] of Reasons:
“I therefore find that the injury in August 2000 on the balance of probabilities caused the onset of a discal disease and that the nature and conditions of the applicant’s employment contributed substantially to her ongoing deterioration culminating in the acute disc herniation of April 2009.”
The findings as stated in the Certificate of Determination do not correctly address the issues raised for determination and should, on this appeal, be revoked and substituted with findings as set forth below. The Arbitrator appears to have assumed that the dispute concerning s 60 expenses “would follow” a determination of the matters in dispute (Reasons at [4]). That assumption disregards the statement by counsel for Ms Anderson noted at [20] above. An application for an order pursuant to s 60 of the 1987 Act has been made and Ms Anderson is entitled to that relief given the findings earlier stated. The confusion which has arisen appears to have resulted from the erroneous suggestion made to the Arbitrator by the parties and accepted by her that it was appropriate to make “a declaration of liability”. The appropriate course in the present matter required a determination of those matters in dispute, and, if appropriate, entry of an award as sought. In the circumstances it is appropriate to make such an order on this appeal.

DECISION

Paragraphs one and two appearing in the Certificate of Determination dated 5 October 2010 are revoked and the following determinations and order are made in their place:
“1. The applicant received injury to her lumbar spine as a result of a frank injury on 22 August 2000. That injury caused discal disease. That disease was aggravated by the nature and conditions of the applicant’s work up to 2008.
2. The applicant’s employment was a substantial contributing factor to the injury received in August 2000 and to the aggravation of the disease, each of which caused the pathology in the lumbar spine which required treatment in 2009.
3. Order pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s medical, hospital and rehabilitation expenses.”
The Arbitrator’s order numbered “1” concerning costs is confirmed, being order 4 made on this appeal, as is the Arbitrator’s order as to certification of costs as found in the Certificate of Determination dated 5 October 2010.

COSTS

The appellant is to pay Ms Anderson’s costs of this appeal.

Kevin O'Grady

Deputy President
14 January 2011

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

ASSOCIATE