Ausgrid v Grima - [2012] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ausgrid v Grima [2012] NSWWCCPD 59
APPELLANT:		Ausgrid
RESPONDENT:		Tim Grima
INSURER:		Self-insured
FILE NUMBER:		A1-3079/12
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:		5 July 2012
DATE OF APPEAL DECISION:		15 October 2012
SUBJECT MATTER OF DECISION:		Alleged failure to analyse and consider evidence; reasons; weight of evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:	Firths
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 5 July 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

Tim Grima is an electrical line worker with Ausgrid. On 25 September 2009, while still a 19-year-old apprentice, he was walking home when three men accosted him. To escape from their threatening conduct, he jumped over a high fence and landed heavily on his right foot. When he tried to stand up, he fell onto his face because of pain in his right leg and ankle.
An ambulance took Mr Grima to Royal Prince Alfred Hospital where x-rays revealed a fracture of the right medial malleolus with displacement. The hospital gave him a walking boot and allowed him to go home. He came under the care of Dr Gothelf, orthopaedic surgeon, and had surgery on his right ankle on 14 October 2009.
Mr Grima’s case was that, at about the time of this surgery, he noticed pain across his lower back, which he assumed was muscular and would resolve. At the time, he was immobile following his injury and he spent the first few months lying down in bed. He believed that his back pain was aggravated by lying down for a prolonged period. Following his operation, he wore an ankle boot and used crutches. His back pain continued and was aggravated by significantly favouring his right ankle following the surgery.
He had further surgery to his right ankle on 28 January 2010 and was again sedentary for a prolonged period. He was prescribed pain medication, which helped the pain in his ankle and also masked the pain and discomfort in his low back. It was not until he started to recover from his leg injury that he realised that his “back pain was separate from the injury to [his] right leg and ankle”. Following his surgery, his leg and ankle stabilised, but the pain in his back continued unabated.
Though his back pain continued, he returned to work because he still assumed the pain was muscular. He did not mention his persistent back problems because he felt it would adversely impact on his ability to return to work and would cause his employer to react negatively to him. He also believed that mentioning another injury at that point would not have been taken seriously. He did not discuss his back pain with his doctors because he believed it was merely a muscular injury as a consequence of his leg injury and that it would “cease on its own”.
It was not until he saw Dr Patrick, surgeon, on 25 January 2011 for a medicolegal consultation that he mentioned his back symptoms and was told that it was a separate injury.
In an application registered in the Commission on 29 March 2012, Mr Grima claimed lump sum compensation of $13,750 in respect of a 10 per cent whole person impairment due to the condition of his lumbar spine, right lower extremity and scarring, plus $12,500 for pain and suffering.
He presented his case on two alternative bases. Either that his back symptoms were caused by an injury to his back on 25 September 2009 or, they had resulted from the injury to his ankle. The Arbitrator and the parties wrongly referred to the alternative argument as the “consequential injury”.
Ausgrid has not disputed that Mr Grima injured his right ankle while on a periodic journey on his way home from work on 25 September 2009. It has disputed whether he suffered an injury to his back on that date or that his back pain has resulted from the ankle injury. Therefore, if Ausgrid is correct, the only issue to be referred to an Approved Medical Specialist (AMS) for assessment is the assessment of whole person impairment as a result of the condition of Mr Grima’s right ankle and the scarring to that ankle.
Ausgrid relied on evidence from Dr Stephen, orthopaedic surgeon, who said that, as Mr Grima’s back symptoms, which were intermittent and mild, did not appear until about four months after the incident in September 2009, they were not related to it.
The matter proceeded to arbitration on 4 July 2012. Neither side called any oral evidence and the matter proceeded with oral submissions. The Arbitrator delivered an extempore decision in which he found in favour of Mr Grima.
The Commission issued a Certificate of Determination on 5 July 2012 in the following terms:
“The determination of the Commission in this matter is as follows:
1.Matter remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to assess whole person impairment of the following body parts as a result of injury on 25 September 2009:
(a)   right lower extremity;
(b)   lumbar spine, and
(c)   temski scarring.
2.The following documents are to be sent to the AMS:
(a)   Application to Resolve a Dispute and attached documents;
(b)   Application to Admit Late Documents filed by the applicant on 26 June 2012;
(c)   Reply and attached documents filed by Bartier Perry;
(d)   Applications to Admit Late Documents filed by the respondent on 2 May 2012 and 23 May 2012.
3.Respondent to pay the applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010, I certify this matter as complex with an increase in costs of 10 per cent otherwise available to the parties.”
Ausgrid has appealed the Arbitrator’s decision.

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.”
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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to provide an adequate analysis of the relevant evidence and therefore failing to exercise his function fairly and according to law;
(b)     failing to properly consider the relevant evidence and weight of the evidence;
(c)     failing to give a clear or logical explanation as to why the evidence of Dr Patrick was preferred over other evidence, and
(d)     accepting the evidence of Dr Patrick when that evidence was against the weight of evidence.

SUBMISSIONS

Ausgrid submitted that the Arbitrator failed to provide an adequate analysis of the relevant evidence, failed to give proper consideration to the relevant evidence and the weight of that evidence, and failed to give a clear or logical explanation of the reasons why some evidence was preferred over other evidence.
It is not clear if the Arbitrator found Mr Grima had sustained injury to his back in the event on 25 September 2009, or if he found that the injury to the lumbar spine resulted from, or was secondary to, Mr Grima’s ankle injury.
Mr Grima’s statement did not allege he sustained an injury to his back in the event on 25 September 2009. He said that he noticed pain across his lower back around the time of his ankle surgery on 14 October 2009, three weeks after the injurious event.
His evidence does not support a finding of injury to the lumbar spine in the event on 25 September 2009. This was consistent with Dr Stephen’s opinion in his report of 1 March 2012 that Mr Grima had intermittent low lumbar backache of a mild degree, which first appeared four months after the fall and which, on the balance of probabilities, was not related to that incident.
Mr Grima’s evidence was therefore at odds with Dr Patrick’s conclusion that he suffered a facet joint injury to the lumbar spine in the event of 25 September 2009.
If the Arbitrator found that Mr Grima suffered injury to the lumbar spine in the event of 25 September 2009, he did not explain how such a finding was open to him in view of the above evidence and the complete absence of support from treating doctors for such an injury. This finding was not open to the Arbitrator on a balanced and proper consideration of the whole of the evidence.
Mr Grima’s back pain has not been the subject of assessment, radiological or diagnostic investigation, diagnosis or treatment by any treating medical practitioner or hospital. It is not mentioned in any clinical note, certificate or report of a treating doctor.
In accepting the opinion of Dr Patrick, the Arbitrator accepted that Mr Grima suffered a facet joint injury that may have occurred on 25 September 2009 and may have been contributed to by a significantly altered gait over a period of many weeks after the accident. In coming to this conclusion the Arbitrator failed to reconcile the evidence of Dr Patrick with the complete absence of medical evidence from treating doctors dealing with the lumbar spine, or the opinion of Dr Stephen.
It was not open to the Arbitrator to find a lumbar spine injury causally related to the injury on 25 September 2009 (directly or consequentially) in the absence of any radiological investigations, diagnosis or treatment relative to the lumbar spine by treating doctors, particularly in view of the opinion of Dr Stephen.
Mr Grima’s reason for not mentioning his back pain to anyone prior to seeking Dr Patrick was not a satisfactory explanation. Clinical notes from Dr Brody, Mr Grima’s general practitioner, contain references to other injuries and ailments that are not related to this matter. If Mr Grima was suffering significant back pain, he would have told one of his doctors about it at some stage between September 2009 and January 2011.
Mr Grima’s statement that his medication for his ankle pain masked his back pain is not an adequate explanation for him not mentioning the back pain to any of his doctors before the impairment claim was instigated.
The Arbitrator should have placed more weight on Mr Grima’s lack of complaint to treating doctors concerning back pain and the absence of historical medical information in relation to the nature and extent of the problem. Had he done so, he may not have been inclined to accept the opinion of Dr Patrick. At the least, the Arbitrator should have referred to the absence of this evidence and explained why he nevertheless still determined that Mr Grima had sustained a lumbar spine injury causally related to the injury on 25 September 2009.
Reliance was place on Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844 (Paric) where it was stated that it is trite law that for an expert’s medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence.
Dr Patrick’s conclusion that Mr Grima suffered a lumbar spine facet joint injury was dubious and not supported by important data such as a history of significant complaint by and clinical observation of Mr Grima, radiological investigations, treating doctor diagnostic opinion and treatment.
Dr Patrick’s conclusion was based on Mr Grima’s complaint of onset of back pain at the time of the first operation (which was at odds with Dr Stephen’s history that it started four months after 25 September 2009), a lone finding on examination of muscle guarding and Mr Grima’s complaint of some lumbar spine tightness or stiffness. Without further investigation and analysis, these matters are not sufficient for Dr Patrick to comfortably conclude Mr Grima had suffered a lumbar spine facet joint injury.
The absence of a significant clinical history of back pain, investigations and treatment constitutes “a failure in some one or more important data, not merely in a trifling respect” (Paric) which could have significantly affected or altered the opinion of the medical expert. These matters should have been canvassed in the Arbitrator’s reasons “in some greater detail so as to more fully disclose why he accepted the opinion of Dr Patrick in the circumstances”.
Upon receipt of the transcript, the appellant made additional submissions, which are summarised below.
The Arbitrator correctly posed the dispute issue to be whether there was a causal connection between Mr Grima’s back complaints and the injury on 25 September 2009. He identified the issue to be whether Mr Grima sustained injury to his back on 25 September 2009 or, alternatively, as a secondary injury consequential to the ankle injury.
The Arbitrator said (at T26.5) that he made no finding as to whether Mr Grima noticed the back pain three or four months after the incident or at about the time of the surgery on 14 October 2009. However, at T27.10, he said he accepted Mr Grima’s evidence that he noticed the back pain either within three or four months after the incident or at around the time of the first surgical procedure.
The Arbitrator did not determine whether Mr Grima suffered a “primary” injury in the event on 25 September 2009 or, alternatively, whether the back injury was secondary to the right ankle injury.
In determining the dispute in favour of Mr Grima, the Arbitrator seems to have concluded there was a causal connection between the event on 25 September 2009 and the ongoing back complaint because Mr Grima did not have a back problem prior to 25 September 2009. In other words, the absence of evidence of a prior back injury or evidence pointing to another cause for the back pain, according to the Arbitrator, must mean the problem is related to the 25 September 2009 incident either by way of primary or consequential injury. He has not provided proper reasons to disclose the basis upon which his decision was made.
Though the Arbitrator accepted that Mr Grima suffered a back injury causally related to the event of 25 September 2009, he has failed to determine whether Mr Grima suffered a primary or frank injury in that event or, alternatively, whether the back injury was secondary or consequential to the right ankle injury suffered in the event. The absence of a finding on this issue caused the Arbitrator to not disclose, by reference to the evidence, the causal link or connection between the back pain and the injury on 25 September 2009.
The Arbitrator seems to have reached his conclusion by pointing to the absence of a prior injury or evidence providing an alternative explanation for a back injury. The absence of the above finding and reasons explaining the causal link or connection between the onset of the back pain and the injury on 25 September 2009 constitutes an error of law.

DISCUSSION AND FINDINGS

Essentially, the appellant’s complaint is that the Arbitrator failed to provide adequate reasons and failed to properly consider the evidence. For the reasons explained below, I reject these submissions.
It is first appropriate to set out the Arbitrator’s reasons.
The Arbitrator set out the circumstances of the incident recorded by Dr Patrick, and as to which there is no dispute. He then identified the issue to be “the causation of the back injury” (T21.16). More particularly, he said, at T21.17, that the issue was:
“the causal link or the connection between the onset of the back complaints which [Mr Grima] complains about and the injury on 25 September 2009 either as a result of injury suffered when he climbed over the Colorbond fence and jumped down onto the other side landing heavily, or whether there was a consequential injury to the back as a result of the problems with the right ankle.”
Though the reference to Mr Grima having received a “consequential injury” was inappropriate and apt to mislead, since the legislation makes no reference to a “consequential injury”, and it is more accurate to describe the alternative question as whether Mr Grima’s back condition or symptoms resulted from the injury on 25 September 2009, nothing turns on this point and the parties have agreed that the Arbitrator correctly identified the issue in dispute.
The Arbitrator then set out the following extracts from Mr Grima’s evidence:
“3. I confirm that on 25 September 2009, at the age of 19, I sustained a significant injury to my right leg and ankle whilst on my way home from work. My claim for this injury is currently before the Commission for determination.
4. I confirm that following my injury I suffered immediate pain in my right leg and ankle and was taken to Royal Prince Alfred Hospital. The injuries that I sustained caused me to be sedentary for a number of weeks thereafter.
5. On 14 October 2009, I came to surgical intervention on my right ankle. I confirm that it was during this time that I also noticed pain across my lower back, which I assumed was muscular and would resolve over a short period of time.
6. As I was immobile following my injury, I spent the first few months lying down in bed. At the time, I believe that my back pain was aggravated by lying down for such a prolonged period of time.
7. Following my surgery, I was instructed to wear an ankle boot and use crutches. My back pain continued during this time. I believe that the back pain was again aggravated by significantly favouring my right ankle following surgery.
8. On 28 January 2010, I came to surgical intervention on my right ankle for the second time. During the recovery from this surgery I was again sedentary for a prolonged period of time. During this time I was prescribed pain medication to alleviate the significant pain symptoms that I was experiencing. These medications helped the pain that I was experiencing in my right leg and ankle, and they also masked the continued pain and discomfort that I was experiencing in my lower back.
9. Unfortunately it was not until I started to recover somewhat from my leg injury that I realised that my back pain was separate from the injury to my right leg and ankle. Following my surgery, my leg and ankle started to become more stable, however, the pain in my back continued unabated.”
Though Mr Grima was able to return to work with Ausgrid, he said he had back pain when doing those duties and with his general activities. He was unable to do many of the activities he previously did, including activities in his surf lifesaving club and playing football.
After noting that Dr Stephen took a history that Mr Grima had returned to football, the Arbitrator said that he accepted Mr Grima’s evidence that he had not played football since 25 September 2009. The Arbitrator also accepted that Mr Grima was “suffering with pain and problems with his right leg, and also has back pain which is restricting him from doing a lot of pre-injury activities” (T22.51).
The Arbitrator then referred to the submissions by Ausgrid’s counsel to the effect that there was no evidence, either in Dr Brody’s clinical notes or in the physiotherapist’s notes, of any complaint of back pain and that, as a result, he would not be satisfied, so it was argued, there was a causal link between the “onset of complaints of back pain with the injury” (T24.23).
With regard to Dr Brody’s clinical notes, the Arbitrator noted that they included a prior complaint of neck and upper thoracic pain because of an injury playing football in 2008, but had no reference to any prior back injury or symptoms. He therefore accepted that Mr Grima had not suffered an injury to his back or made any complaint about his back prior to 25 September 2009. This finding was open on the evidence.

The Arbitrator said (at T25.10) that the case required him to “apply a commonsense evaluation to consider whether there is a causal link between the onset of back complaints and the injury”. This statement was consistent with the accepted principles of causation in workers compensation cases (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)) and has not been challenged on appeal.
The Arbitrator said (at T25.31) that it did not seem to be an issue that Mr Grima “complains about back pain”. That statement was correct. Dr Stephen’s evidence was not that Mr Grima had no symptoms, but that, because the back symptoms had not commenced until four months after the incident on 25 September 2009, they were not related to it.
Though the Arbitrator initially said that he made “no finding of fact” (T26.5) as to whether Mr Grima first noticed the onset of back pain three or four months after 25 September 2009, or at about the time of the first operation on 14 October 2009, he later said (at T27.11) that he accepted Mr Grima’s evidence that he noticed the onset of back pain “either within three to four months after the incident or at about the time of the first surgical procedure” and then added (at T27.34) that he had no reason not to accept Mr Grima’s evidence that he noticed back pain at about the time of the (first) surgery.
The Arbitrator said that, at the time of the accident, Mr Grima was a young man only 19 years of age who was actively engaged in a range of activities “with no history of back complaints whatsoever”. He suffered a significant injury to his right ankle on 25 September 2009 and, in the Arbitrator’s view, obviously had significant pain and problems with his right ankle that resulted in two operations.
The Arbitrator said, starting at T27.31:
“The Applicant was immobilised for a long period of time, wearing a boot and getting about on crutches. The treatment during that period would have related to his right ankle and leg. The Applicant says, and I have no reason not to accept his evidence, that about the time of the surgery he noticed back pain. He thought that it was muscular and due to immobilisation and bed rest. But, as time progressed, the back pain did not go away, even though the condition of his right ankle improved. There is no other evidence either in clinical notes or records or from any other source to show that the Applicant suffered an injury to his back as a result of some other activity.
It seems to me applying a commonsense approach, or a commonsense evaluation of the facts, that there is a causal link between the onset of the back pain and the injury that he suffered during a journey provision on the 25^th September 2009. The applicant suffered a significant injury to his right leg; he was immobilised and came to surgery. It was about this time he became aware of the back pain after being immobilised. The back pain has not gone away.”
After referring to Nguyen v Cosmopolitan Homes [2008] NSWCA 246, the Arbitrator said that, there being no other evidence that would lead him to conclude that the onset of the back pain during the period when Mr Grima had suffered a fractured ankle requiring surgery with immobilisation and bedrest resulted from any cause other than the injury on 25 September 2009, he felt:
“actual persuasion of the existence of a fact in that I am satisfied on the balance of probabilities that there is a causal link or connection between the onset of the back pain on or about the 14^th October 2009 with the injury that [Mr Grima] suffered to his right leg on 25^th September 2009.”
It follows from a careful review of the reasons that, contrary to the appellant’s submission that it was unclear what the Arbitrator found, the Arbitrator found that there was a causal link or connection between Mr Grima’s back pain and the ankle injury on 25 September 2009.
In other words, consistent with Kooragang, the Arbitrator found that the back pain resulted from the ankle injury. This finding was consistent with the fact that, as the appellant has submitted, Mr Grima did not say in his statement that he injured his back on 25 September 2009.
The submission that it was not open to the Arbitrator to find that Mr Grima injured his back on 25 September 2009, and that he gave no reasons for that finding, addresses an issue that does not arise because the Arbitrator did not make that finding.
So far as it was necessary for the Arbitrator to reconcile Dr Patrick’s evidence with the lack of evidence from treating doctors and with Dr Stephen’s evidence, and I doubt that it was, he did so when he referred to Dr Brody’s clinical notes and accepted that Mr Grima had not suffered an injury to his back, or made any complaint about his back, prior to 25 September 2009 and accepted that Mr Grima complained of back pain from the time of the first operation.
With regard to Dr Stephen’s evidence, the Arbitrator said (at T26.1) that Dr Stephen may have come to a different view if he had had a history that Mr Grima noticed his back pain at about the time of the first operation. That observation was open, but was not, of itself, determinative.
The Arbitrator’s reference to Mr Grima being a young man who, until his accident on 25 September 2009, had been engaged in a range of activities with no history of back complaints, was correct and that was a fact he was entitled to take into account, and did take into account, in determining the causation issue before him.
In further dealing with the appellant’s submission about the lack of complaint of back pain to a treating doctor or physiotherapist, the Arbitrator accepted Mr Grima’s evidence that he believed his back pain was muscular and was due to immobilisation and bed rest, and that it had not resolved. This finding was open to him and discloses no error.
I accept that the Arbitrator initially said that he made no finding about when Mr Grima’s back pain started and that he ultimately said that he accepted Mr Grima’s evidence that the pain started at about the time of the first operation. However, that inconsistency is of no consequence to the outcome because, on reading the Arbitrator’s reasons as a whole, it is clear that, regardless of whether Mr Grima’s back pain started on or about 14 October 2009, or in January 2010 (four months after the accident), the Arbitrator was comfortably satisfied that the pain had resulted from the undisputed ankle injury.
The submission that it was not open to the Arbitrator to find a spinal injury causally related to the injury on 25 September 2009 (either “directly or consequentially”) in the absence of any radiological investigations or treatment may have had some weight if the Arbitrator had found that Mr Grima suffered a personal injury to his back on 25 September 2009. However, as noted above, that was not the finding he made.
To the extent that the submission in the preceding paragraph relates to an alleged consequential spinal “injury”, it confuses an “injury” with a condition that has resulted from the “injury”. Applying Kooragang, the Commission has consistently held that a condition that has resulted from a “personal injury” is not itself an “injury” within the meaning of s 4 of the Workers Compensation Act 1987 but is a consequential condition (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Vivaldo v Uniting Church of Australia t/as Lucan Care [2010] NSWWCCPD 41; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8; Australian Traineeship System v Turner [2012] NSWWCCPD 4; Moon v Conmah Pty Limited [2009] NSWWCCPD 134; Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48).
If the appellant intended to submit that, because of the lack of radiological investigations or treatment relative to the lumbar spine, it was not open to the Arbitrator to find that Mr Grima’s back pain was a consequential condition that resulted from his ankle injury, I reject that submission. Applying a “commonsense evaluation of the causal chain” (Kooragang), the Arbitrator was entitled to conclude that, given the history of no back symptoms before 25 September 2009 and the history of immobilisation, wearing a boot and using crutches, then, in the absence of any other trauma to the back, the back pain resulted from the ankle injury and its sequelae.
The submission that Mr Grima’s reason for not mentioning his back pain to anyone prior to seeing Dr Patrick “was not a satisfactory explanation” may have been appropriate in a review or a hearing de novo, but in an appeal restricted to the identification and correction of error, it was unhelpful. More importantly, the Arbitrator did not base his decision on that part of Mr Grima’s evidence, but said he had no reason not to accept Mr Grima’s evidence that, at about the time of the surgery, he noticed back pain, which he thought was muscular. It is also clear that he accepted that the back pain did not go away. It was open to the Arbitrator to reach that conclusion.
The Arbitrator was well aware that Mr Grima had not complained of back pain to his general practitioner or physiotherapist (a point that Mr Grima openly conceded) and expressly referred to the submission by Ausgrid’s counsel on that point. However, that point went to whether Mr Grima could be accepted when he said he had back pain from the time of the first operation. The Arbitrator accepted his evidence and it was open to him to do so.
The submission that Mr Grima’s statement that his medication for his ankle masked his back pain was not an “adequate explanation” for him not mentioning his back pain to any of his doctors prior to seeing Dr Patrick was irrelevant because the Arbitrator did not rely on the masking effect of the medication to support his conclusion. In these circumstances, the appellant’s submission was unhelpful and did not establish error by the Arbitrator.
The submission that the Arbitrator should have placed more weight on Mr Grima’s lack of complaint to treating doctors was merely an attempt to conduct a re-hearing. The issue was not the weight to be attached to the admitted lack of complaint, but whether the Arbitrator erred in accepting Mr Grima’s evidence about the development and continuation of his back symptoms. I am firmly of the view that he did not.
The general criticism of Dr Patrick’s diagnosis is misguided. The Arbitrator did not find that Mr Grima suffered a facet joint injury, as Dr Patrick concluded, but found that the back pain resulted from the ankle injury. This finding was consistent with Dr Patrick’s opinion that Mr Grima’s back condition “may well have been contributed to by his significantly altered gait over a period of many weeks subsequent to the accident”, though the Arbitrator did not expressly refer to it in reaching his conclusion. That omission, not challenged on appeal as an error, is of no consequence because the question of the pathology in Mr Grima’s back and the impairment, if any, that results from that pathology is a matter for an AMS, not the Commission.
The relevance of Paric, and how it assists Ausgrid, is unclear. Dr Patrick was aware that there were no investigations of the lumbar spine and he took no history that Mr Grima had received treatment for his back. There was therefore no reason why the Arbitrator would have dealt with those matters when assessing the evidence. Moreover, as already noted, the Arbitrator did not base his conclusion on Dr Patrick’s diagnosis of a facet joint injury.
I do not accept the submission that the Arbitrator did not provide proper reasons for his conclusion. An Arbitrator does not have to refer to every piece of evidence. However, he or she must refer to evidence that is important or critical to the proper determination of the matter (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430).
The Arbitrator complied with that obligation in this case. In summary, his reasons were:
(a)     he accepted that Mr Grima had not suffered an injury to his back or made any complaint about his back prior to the incident on 25 September 2009 (T25.1);
(b)     there did not seem to be an issue that Mr Grima complained of back pain, which was conceded by Dr Stephen (T25.30), and accepted by the Arbitrator (T22.51);
(c)     he accepted Mr Grima’s evidence that he noticed back pain at about the time of the first operation (T27.35) and that the pain had not gone away (T27.51);
(d)     applying a commonsense evaluation to the facts, there was a causal connection between the onset of Mr Grima’s back pain and the injury on 25 September 2009 (T27.44), and
(e)     there being no other evidence that would lead him to conclude that the onset of back pain resulted from any cause other than the fractured ankle, which required surgery with immobilisation and bedrest, he felt actual persuasion of the causal link or connection between the onset of the back pain and the injury on 25 September 2009 (T28.18–34).
Though at one part of his decision, the Arbitrator said he found that Mr Grima “suffered an injury to his back as a result of the injury to his right leg” (T28.25), that statement must be read in the context of the decision as a whole. When that is done, it is clear that, when the Arbitrator first said “injury” in the passage just quoted, he was not referring to a s 4 injury, but to what he had earlier referred to as a “consequential injury”. As already noted in this decision, the expression “consequential injury” was inappropriate and should not have been used.
Notwithstanding that incorrect expression, the Arbitrator’s ultimate finding was that Mr Grima’s back symptoms resulted from his ankle injury. Whether, as a result of those symptoms, he is entitled to lump sum compensation is a matter for an AMS.

CONCLUSION

This appeal was without merit and seems to have been filed without any consideration of the Arbitrator’s reasons. The appellant’s submissions were, in general, couched in terms appropriate for a review or hearing de novo and failed to appreciate that s 352 appeals are restricted to the identification and correction of error. Nevertheless, I have considered and dealt with all of the appellant’s arguments and have concluded that the Arbitrator’s decision was open to him and is not affected by any error.
Had the appeal been a review, I would have reached the same conclusion as that reached by the Arbitrator. In that regard, I note that Dr Stephen focused on whether Mr Grima’s low back condition was “related to” the incident on 25 September 2009, not whether it had “resulted from” the accepted injury to the right ankle. Therefore, he failed to address the alternative basis on which Mr Grima presented his case and, in these circumstances, his opinion is of little weight to the ultimate finding.

DECISION

The Arbitrator’s determination of 5 July 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
15 October 2012

I, TAMI O’CARROLL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE