Black v Inghams Enterprises Pty Ltd - [2020] NSWWCCPD 69

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Black v Inghams Enterprises Pty Ltd [2020] NSWWCCPD 69
APPELLANT:	David Black
RESPONDENT:	Inghams Enterprises Pty Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-2203/20
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	16 July 2020
DATE OF APPEAL DECISION:	30 November 2020
SUBJECT MATTER OF DECISION:	Failure to admit late evidence – whether error in the discretionary exercise – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, Hamod v State of New South Wales [2011] NSWCA 375 applied, alleged errors of fact – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Balendra, counsel
CBD Law
Respondent:
Mr P Macken, solicitor
Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The appellant’s application to adduce further evidence on the appeal is refused. 3. The Arbitrator’s Certificate of Determination dated 16 July 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Mr David Black (the appellant) commenced employment with Inghams Enterprises Pty Ltd (the respondent) as a process worker and cleaner on or about 16 November 2016. The appellant alleged that, in a frank incident on the night shift on 25 and 26 March 2019, he suffered a lumbar spine injury. He ceased work following the shift and made a claim for weekly compensation and treatment expenses. The respondent denied liability for the injury.
The appellant had previously suffered a non-work related injury to his lumbar spine in 2002.
The appellant filed proceedings in the Commission, alleging that, as a result of the injury in the early hours of 26 March 2019, and as a consequence of the heavy nature of his work, he suffered an aggravation, acceleration, exacerbation or deterioration of his pre-existing condition. The respondent maintained the dispute in relation to the frank incident and disputed liability for what was described as the “nature and conditions” of the appellant’s employment.
The matter proceeded to arbitration on 2 July 2020. At the commencement of the arbitration, the appellant sought to tender an Application to Admit Late Documents (AALD) which enclosed a supplementary statement from the appellant dated 1 July 2020. The application was opposed by the respondent and the Arbitrator declined to admit the document.
The Arbitrator issued a Certificate of Determination on 16 July 2020 in which he found that the appellant had suffered an aggravation of his pre-existing lumbar disease as a result of the heavy nature of the appellant’s duties, but that he was not satisfied that the appellant’s employment was the main contributing factor to the aggravation, as required by s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The appellant appeals the decision of the Arbitrator to refuse admission of the appellant’s supplementary statement, as well as the final determination by the Arbitrator that he was not satisfied that the appellant’s employment was the main contributing factor to the aggravation of the appellant’s lumbar disease.

ON THE PAPERS

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.”
The appellant is content for the appeal to be determined on the basis of the written submissions of the parties and the documents in evidence. The respondent indicated that if the appellant’s supplementary statement dated 1 July 2020 is admitted into evidence on the appeal, it would require an oral hearing. If, however, the document is not admitted, the respondent is content for the appeal to be determined ‘on the papers.’
For the reasons set out below, the appellant’s supplementary statement dated 1 July 2020 is not admitted into evidence. I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The decision by the Arbitrator to refuse to admit the appellant’s supplementary statement is an interlocutory decision. There is no appeal from an interlocutory decision, unless leave to do so is granted by the Commission. The Commission is not to grant leave unless it is of the opinion that a determination of the appeal is necessary or desirable for the proper and effective determination of the dispute.[1]
[1] Section 352(3A) of the 1998 Act.
The appellant submits that leave should be granted to appeal the decision because it affects the Arbitrator’s ultimate determination, which is also the subject of this appeal. The respondent submits that leave should not be granted to appeal the interlocutory decision because the Arbitrator was correct to reject the application. The respondent points to its submissions as to why the Arbitrator was correct, recorded below under Ground One of the appeal.
A factor that weighs in favour of the granting of leave to appeal is that the substantive matter has been finally determined, so that the appellant would have no other opportunity to challenge the Arbitrator’s interlocutory decision. The final determinations by the Arbitrator that the appellant did not suffer an injury to the lumbar spine on 26 March 2019 and that he was not satisfied that the heavy nature of the employment was the main contributing factor to the aggravation are also the subject of this appeal. The parties are therefore involved in an appeal from those final determinations in any event. In those circumstances, and in the context of the respondent relying on its submissions in response to this ground of appeal that the Arbitrator’s determination was correct, I grant leave for the appellant to appeal the Arbitrator’s decision to reject the AALD containing the appellant’s supplementary statement dated 1 July 2020.

Fresh or new evidence

The appellant seeks to have admitted his supplementary statement dated 1 July 2020 in this appeal. Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In CHEP Australia Ltd vStrickland,[2] Barrett JA discussed the test to be applied in consideration of whether the failure to admit late documents would cause a substantial injustice. At [30]–[31] of the decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[2] [2013] NSWCA 351; 12 DDCR 501.
The appellant makes no submission as to why the document should be admitted on the appeal. With due diligence, the evidence could clearly have reasonably been obtained by the appellant before the arbitration hearing. The appellant offers no reason to explain why it was not. Nor does the appellant satisfactorily explain how it would suffer a substantial injustice if it were not admitted on the appeal. The only way in which it can be determined whether the appellant would suffer a “substantial injustice,” as required by s 352(6) is to assess whether the Arbitrator erred in the exercise of his discretion by refusing to admit the document into the arbitral proceedings, which is the subject of Ground One of the appeal.
It is therefore necessary to give consideration to Ground One of the appeal, which asserts that the appellant was denied procedural fairness by refusing the appellant’s application to rely on the document. I have determined for reasons below that the Arbitrator’s failure to admit that evidence does not amount to error in the exercise of the Arbitrator’s discretion and a refusal to admit the document in the appeal could therefore not result in a substantial injustice to the appellant. As Ground One of the appeal fails, there can be no injustice to the appellant if the document is not admitted into evidence.
For those reasons, the appellant’s statement dated 1 July 2020 is therefore not admitted in the appeal.

THE EVIDENCE

The appellant’s statement

The appellant provided a statement dated 22 April 2020.[3] He confirmed that he commenced employment with the respondent as a process worker/cleaner on or about 16 November 2016, following a pre-employment medical check, which he said he passed with “flying colours.” He described his duties, which included cleaning, heavy lifting, lifting and stacking pallets as well as other manual work.
[3] ARD, pp 3–10.
The appellant disclosed that he suffered a back injury in about 2001 or 2002, which resolved following a few physiotherapy sessions and gave him no further difficulties until he commenced work with the respondent. He asserted that prior to commencing the heavy work with the respondent, he was able to run around and play with his children.
The appellant said that during his employment with the respondent, over time his back became sore and in September 2018, he had an x-ray of his whole spine and a CT scan of his lumbar spine. He said the back pain continued. The appellant stated that his general practitioner, Dr Sasikala Balaraman wrote to the respondent on 6 March 2019 suggesting that the respondent provide suitable duties that would not aggravate the appellant’s back pain. The appellant recalled that he had one day off work at that time and presented a medical certificate to Mr Mark Ritter, with whom he discussed the possibility of a different job role. The appellant stated that he also raised with Mr Ritter that there was no entry in the first aid book about his back pain, which he had complained of well prior to 26 March 2019. He said Mr Ritter replied that he “had it sorted.” The appellant was told that the respondent was under-staffed, and the respondent therefore could not give him any assistance, which meant that the appellant was working beyond his limits.
The appellant referred to an incident when, on night shift, he fell backwards off a ladder, twisting his ankle and hurting his Achilles tendon. He said he sought treatment at Wyong Hospital and had two days off work. He said that Mr Ritter was aware of this incident. The appellant referred to another incident while washing and stacking hundreds of pallets. He said he advised his supervisor that he was experiencing back pain and took one day off work.
The appellant described the incident on the night shift commencing on 25 March 2019, when he was required to clean the “VE room” without assistance. He said that each time he had worked in that room, where he was required to climb in and under the machines to clean them, he had experienced a sore back and body aches and pains. He described the difficult aspect of cleaning the machines. He said that during that shift he asked Mr Wayne Kan and Mr Wayne Dicker for assistance.
The appellant stated that on that shift in the early hours of 26 March 2019, he was on a ladder and bending over a machine when the ladder pushed away and he felt instant pain in his lumbar spine, which shot up his back, down his legs and into his hips. He said he did not finish his duties and drove himself home in great pain.
The appellant said that he sent a message to Mr Ritter at midday on 26 March 2019 to advise him about his lower back pain and that he would not be able to work. He said that Mr Ritter told him he could not return to work until he had a full clearance from a doctor. The appellant annexed to his statement copies of screen shots and text messages that passed between him and Mr Ritter.
The appellant advised that he attended his general practitioner, Dr Chi Ming Lau of the Toukley Family Practice, who issued him with a medical certificate certifying him as unfit to work and referred him for an MRI scan and physiotherapy. The appellant said that he was experiencing low back pain travelling into the hips and into his legs.
The appellant summarised the treatment thereafter, which included undergoing x-rays and a bone scan, being reviewed by the Neurosurgical Registrar of Royal North Shore Hospital, Dr Shinou Liu, and being referred to the Hunter Pain Clinic. The appellant said that Dr Jonathon Ball, neurosurgeon, performed a spinal fusion of the L4/5 and L5/S1 lumbar discs. The appellant described his ongoing pain and difficulties.
The appellant referred to statements made by Mr Kan, Mr Dean Baker and Mr Ryan Yates. He asserted that he had definitely advised Mr Kan and Mr Dicker prior to 26 March 2019 that he was developing back pain as a result of his work with the respondent and that he had asked for help with the cleaning. Further, the appellant said that the allegation made by Mr Baker that he had not complained of back pain was a reference to the back injury the appellant suffered on the evening shift of 4 and 5 March 2019, which had occurred after Mr Baker had gone home. The appellant denied that he had told Mr Yates that he was “too tired,” but rather, complained that he was “too sore to finish the job” and needed to go home.

Communications annexed to the appellant’s statement

The appellant annexed a series of mobile phone text messages passing between him and Mr Ritter in relation to starting times for the appellant’s shifts.[4] On 21 March, presumably in 2019, the appellant advised Mr Ritter he would “have to say no” to working in the VE room.[5] In an undated text message, the appellant notified Mr Ritter that he would not be able to work because of being “just too sore” after working on his own in the VE room.[6]
[4] ARD, pp 11–17.
[5] ARD, p 12.
[6] ARD, p 14.
Mr Ritter responded and advised the appellant that, as it was not a work-related injury, he would need a medical clearance from his doctor before returning to work.[7] The appellant replied, advising that his symptoms were the same sore back that he had experienced from pulling pallets down and that it should be work related. The appellant added that he had explained his “other back problem” to Mr Ritter, had tried to keep working, and had been “honest with” Mr Ritter “about everything.”[8]
[7] ARD, p 15.
[8] ARD, pp 16–17.

Correspondence from the appellant dated 22 April 2019

On 22 April 2019, the appellant wrote a letter “To whom It may concern.”[9] The appellant advised that he had suffered many injuries in his employment with the respondent which he reported to his team leaders and Mr Ritter. He complained that he was required to clean the “VE room” and the “red room” on his own climbing in and under machines and each time he did so he experienced a sore back and body aches and became dehydrated.
[9] ARD, pp 1–2.
The appellant said that on 25 March 2019, he showed Mr Ritter the medication he was given by the doctor for his sore upper back. The appellant also referred to another incident when he fell backwards off a ladder, twisted his ankle and hurt his Achilles tendon, which required medical attention at Wyong Hospital.
The appellant complained that he received no assistance from the respondent, but he had tried to perform the duties because he was concerned that he would not otherwise be offered work.

The evidence of Mr Wayne Kan, Mr Dean Baker and Mr Ryan Yates

On 27 March 2019, Mr Kan, an employee of the respondent, signed a note asserting that the appellant had not approached him or attended first aid at the respondent’s Lisarow branch about hurting his back. Mr Kan indicated that he had only become aware that the appellant had a sore back when the appellant advised him and Mr Dicker at 3 am on Tuesday 26 March 2019 that he needed to see a specialist in order to have a spinal fusion.[10]
[10] Reply to Application to Resolve a Dispute (reply), p 10.
Mr Baker wrote and signed a short note stating that he was the leading hand on 4 and 5 March 2019 and he did not receive any complaint from the appellant that he was suffering from a sore back or any other work-related injury.[11]
[11] Reply, p 11.
Mr Yates reported that at 5.55 am on 26 March 2019, the appellant came to see him and asked Mr Yates to check the VE room. Mr Yates said that he asked the appellant if the room was all right and the appellant said that it was but that he was a “bit tired.” Mr Yates said he suggested that the appellant should go home, and he would check the job and do the sanitising for the appellant. Mr Yates denied that the appellant said that he had injured his back or had any other work-related injuries.[12]

Relevant Medical records

[12] Reply, p 12.

The clinical records of the Toukley Family Practice

The appellant attended Dr Chi Ming Lau, general practitioner, on 1 March 2019. Dr Lau recorded the history of the appellant having gained 30 kilograms in weight since a back injury following a fall in 2018 and was experiencing continuing chronic back pain. Dr Lau referred to a CT scan of the lumbar spine dated 6 September 2018, which showed multilevel lumbar spondylosis and narrowing of the foramina at L5/S1.[13]
[13] ARD, p 94.
The appellant again attended Dr Lau on 6 March 2019, complaining of continuing low back pain since February 2018 with mild lumbosacral pain at the L4/L5 level. Dr Lau recommended an MRI scan of the lumbar spine and issued the appellant with a Centrelink medical certificate.[14]
[14] ARD, p 95.
On 26 March 2019, the appellant attended Dr Ben Kostyrka, general practitioner from the same practice. Dr Kostyrka noted a workplace injury occurring that day in which the appellant experienced sudden mid-back pain, radiating to the left of the back. Dr Kostyrka noted:
“Has had recurrent back pain at mid and lower back for past 18 months
Previous injury three weeks ago
Lifting [pallets] stacked 10 high
Central mid back
Noted sudden sharp pull
Saw Dr Lau at time
Has had MRI - awaiting report
Exam
States pain at T6–8 area
Nil C/T/L spine vertebral tenderness
Some pain on thoracic rotation, left side only
Power 5/5 both upper and lower limbs”.[15]
[15] ARD, p 96.
The appellant returned to consult Dr Lau on 3 April 2019, complaining of ongoing low back pain radiating into both legs with mild tenderness over the L4/5 level of the lumbosacral spine since February 2018.[16] The same complaint was recorded by Dr Lau at a subsequent consultation on 23 April 2019.[17]
[16] ARD, p 97.
[17] ARD, p 98.

Dr Lau referred the appellant to the Hunter Pain Clinic on 15 May 2019. Dr Lau provided a history of chronic low back pain radiating to both legs since February 2018.[18]
[18] Respondent’s Application to Admit Documents, pp 29–31.

The Entrance Medical Centre

The appellant attended the Entrance Medical Centre between 8 March 2018 and 25 March 2019 complaining of psychological symptoms.[19] On 21 June 2018, the appellant also complained of chronic pain, which was aggravated by accessing his fourth floor apartment which did not have lift access.[20] On 5 September 2018, an unidentified attending doctor from that practice noted that the appellant suffered from chronic pain in the chest, both hips and buttocks, right thigh and right shoulder pain. The doctor recorded reduced range of movement in the cervical spine and right shoulder and lumbosacral spine, as well as diffuse mild tenderness from the mid thoracic spine to the sacral spine. The doctor noted that the appellant suffered from chronic pain since 2002, which was attributed to the lumbar discs, and thoracic pain since a fall in February 2018.[21] The doctor arranged for the appellant to undergo a CT scan of the lumbosacral spine.
[19] ARD, pp 134–137.
[20] ARD, p 136.
[21] ARD, p 136.
On 10 September 2018, the appellant attended the practice to discuss the results of the CT scan, which was reported to disclose thoracic wedging and multilevel lumbar spondyloarthritis.[22] On 3 October 2018, the appellant again attended the practice, complaining of ongoing mid and low back pain and a Centrelink medical certificate was provided.[23] The appellant was also provided with a referral to the Royal North Shore Neurosurgery Unit on 17 October 2018.[24]
[22] ARD, p 136.
[23] ARD, p 137.
[24] ARD, p 137.
The appellant presented to the Practice on 22 January 2019, complaining of a calcaneal spur and chronic back pain. The appellant reported that he was experiencing spasms, at times resulting in falls, he could not walk long distances, and was seeking a mobility parking sticker.[25] On 6 March 2019, the appellant reported that he had strained his back over the weekend and required medical certification for suitable duties. On 25 March 2019, the doctor noted that the appellant had been admitted to hospital the week before and had undergone an MRI scan.[26]
[25] ARD, p 137.
[26] ARD, p 137.

The Physiophix physiotherapy records

The appellant attended Mr Joshua Hall, physiotherapist, on 24 April 2019. Mr Hall recorded the following relevant history:
“ongoing low back issues for many years
always hurt to walk since 18
working at factory on and off for many years, always done manual roles
…
noticed rapid decline in last 12 months
…
went to Gosford Hospital - 5 weeks ago
red flags: urinary/faecal incontinence
hands/legs: neural symptoms
loss of power in legs/fallen over when getting
…
reports nil workers comp input
reports nil specific mode of injury.”[27]
[27] ARD, p 139.

Further medical records

The report of the CT scan of the lumbar spine undertaken on 6 September 2018 was in evidence.[28] The report recorded a history of chronic pain since 2002 and thoracic pain since a fall in February 2018. The scan indicated that there was significant multilevel lumbar spondylosis present with nerve root involvement and wedging of the thoracic vertebra.[29]
[28] ARD, p 44.
[29] ARD, p 44
Dr Sasikala Balaraman, general practitioner, wrote a “To Whom It May Concern” letter dated 6 March 2019. Dr Balaraman indicated that the appellant suffered from lumbar spondylosis causing chronic pain. He advised that the appellant should not be performing heavy lifting and recommended minimal manual handling and no bending from the waist. He further recommended that suitable work should be of benefit.[30]
[30] ARD, p 55.
Dr Lau issued Centrelink medical certificates dated 6 March 2019 and 3 April 2019. The diagnosis provided in both certificates was of lumbar spondylosis with an onset of symptoms of chronic low back pain radiating into the legs in February 2018.[31]
[31] ARD, pp 56–57.
Dr Kostyrka referred the appellant to Physiophix physiotherapy on 26 March 2019. In the referral letter, he advised that the appellant had injured his mid-back with pain at the area of the T6–8, radiating to the left.[32] Dr Kostyrka provided a certificate of capacity on the same date, providing a diagnosis of thoracic back pain caused by cleaning equipment at work. Dr Kostyrka advised that the symptoms were on a background of similar mid-back pain and lower back pain.[33]
[32] ARD, p 60.
[33] ARD, pp 61–62.
Dr Mohammed Iqbal Meeran, general practitioner from the Coastal Health Medical Centre, who the appellant had consulted since 10 July 2019, also provided Centrelink medical certificates dated 7 August 2019 and 16 September 2019. Dr Meeran diagnosed low back pain and lumbar spondylosis with the onset of symptoms being on 1 February 2018.[34]
[34] ARD, pp 69–70.
A Gosford Hospital Discharge Referral dated 19 March 2019 and completed by Dr Thomas Stock, medical officer, noted sacral back pain with a significant history of trauma after falling down some stairs one year prior to admission. The symptoms were recorded as intermittent perineal paraesthesia and numbness, urinary and faecal incontinence, and bilateral sciatica. An MRI scan of the lumbar spine was performed.[35]

The forensic medical reports

[35] ARD, pp 58–59.

Dr Peter Bentivoglio, neurosurgeon

Dr Bentivoglio was requested by the appellant’s legal representatives to examine the appellant and provide a report. Dr Bentivolglio reported on 28 February 2020.[36] He took a history of the appellant having commenced work with the respondent in November 2016 and having suffered a work-related injury on 26 March 2019, when the appellant slipped as he was bending over a machine and developed low back pain. Dr Bentivoglio noted that the appellant had a past history of low back pain for many years, which included a back strain at work three weeks prior to the injury on 26 March 2019. Dr Bentivoglio recorded that the appellant complained of continuing back pain and had been unable to work since the most recent injury.
[36] ARD, pp 19–25.
Dr Bentivoglio reviewed the CT scan dated 6 September 2018, noting that the scan was performed before the “designated injury.” He also referred to an MRI scan, apparently undertaken on 18 March 2019, which was not made available to him to review. He summarised the treatment received by the appellant since that injury, including the L4/S1 spinal fusion performed by Dr Jonathon Ball, neurosurgeon, on 24 November 2019.
Dr Bentivoglio examined the appellant, following which he provided a diagnosis of back pain secondary to multilevel degenerative disease, spondylolisthesis at the L4/5 level and bilateral pars defects at the L4 level. Dr Bentivoglio opined that the appellant’s pre-existing back pain was exacerbated by the injury on 26 March 2019 and that the appellant’s condition undoubtedly related to the work injury, to which the appellant’s employment with the respondent was a substantial contributing factor. Dr Bentivoglio also formed the view that the appellant’s duties with the respondent were a substantial contributing factor to the underlying condition at the L4/5 level, so that the work the appellant was performing for the respondent aggravated the underlying condition. He added that, given the history of intermittent low back pain for some time, the appellant undoubtedly suffered a pre-existing degenerative disease in his lumbar spine. Dr Bentivoglio reiterated that, undoubtedly, without the work injury, the appellant would have suffered from significant problems in his back because of the degenerative disease. He noted the CT and MRI scans undertaken prior to the work injury.
Dr Bentivoglio concluded that the work injury was an aggravation of the pre-existing disease at the L4/5 level and that the injury was the main cause of the aggravation. He expressed the view that the appellant’s prognosis was guarded in respect of a return to pre-injury duties. Dr Bentivoglio said that the appellant would not be able to perform any heavy lifting or repetitive bending or twisting.

Dr Vidyasagar Casikar, neurosurgeon

Dr Casikar was qualified by the respondent’s legal representatives to examine and provide a report with respect to the appellant’s claim. He provided a report dated 9 May 2019.[37]
[37] Reply, pp 1–5.
Dr Casikar recorded a history of injury to the low back on 25 March 2019 and that on the following day, the appellant had increasing pain in the chest and mid-back. Dr Casikar noted that the appellant had consulted Dr Lau approximately two weeks prior to this incident, complaining of low back pain, following which an MRI scan was performed. Dr Casikar also noted that the appellant had experienced low back pain in 2002 and had slipped and fell, injuring his back, in 2018.
Dr Casikar reviewed the x-ray and CT scan undertaken on 6 September 2018 and diagnosed early degenerative disease of the lumbar spine. Dr Casikar was of the opinion that the appellant did not appear to have suffered a specific work-related injury. He conceded that it was possible that the appellant had suffered an aggravation of a pre-existing degenerative disease and grade 1 spondylolisthesis when overreaching in a flexed position. Dr Casikar was of the view that any aggravation had ceased. Dr Casikar advised that the diagnosis was of mechanical back pain which was consistent with the injury, but that employment was not a substantial contributing factor to the injury. Also, in the context of complaints of back pain two weeks prior to the injury, the work-related injury was not a main contributing factor to the appellant’s present complaints.
Dr Casikar provided a supplementary report dated 1 April 2020 in response to questions raised by the respondent.[38] Dr Casikar advised that the appellant had a well-established “failed back” syndrome, his main problem was constitutional genetically determined degenerative disease and the indications for surgery were not due to work-related matters. Dr Casikar confirmed his opinion that the kind of aggravation suffered by the appellant would have settled within six to eight weeks and that the appellant’s employment was not a substantial contributing factor.
[38] Reply, pp 6–7.

THE ARBITRATOR’S REASONS

The Arbitrator provided a summary of the procedural background that led to proceedings being commenced in the Commission. The Arbitrator did not recount his reasons for declining to admit the AALD dated 2 July 2020 as his reasons were recorded in the transcript of the arbitration proceedings. The Arbitrator identified the issues that remained in dispute. The Arbitrator provided a detailed summary of the evidence contained in the appellant’s statement dated 22 April 2020, the clinical notes of the Entrance Medical Centre and the opinions of the medico-legal experts, Dr Casikar and Dr Bentivoglio.
The Arbitrator noted that the appellant’s claim was that he had suffered an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease on 26 March 2019. That is, the alleged injury fell within the definition of injury within the meaning of s 4(b)(ii) of the 1987 Act. The Arbitrator further noted that there was no issue that the appellant suffered from degenerative disc disease at the L4/5 level of the lumbar spine.
The Arbitrator referred to the appellant’s evidence that the injury occurred while he was bent over cleaning a machine in the “VE room” and experienced instant pain in his lumbar spine, which shot up his back and down his hips and legs. The Arbitrator concluded that he did not accept that the appellant experienced pain in the lumbar spine in that incident. He noted that the statement evidence was inconsistent with what the appellant had reported to Dr Kostyrka that day. Further, it was inconsistent with the text message sent to Mr Ritter that day. In that message, the appellant described the pain as the same symptoms he experienced while washing and stacking pallets and, in a letter dated 22 April 2019, the appellant complained that he had hurt his upper back, rather than lower back, performing those duties.
The Arbitrator observed that caution must be exercised when weighing evidence in the form of clinical notes from a general practitioner, particularly where there was no report or oral evidence from that practitioner. The Arbitrator reasoned, however, that Dr Kostyrka noted that the incident triggered mid-back pain, examined the appellant’s thoracic spine, provided a diagnosis of thoracic back pain in the certificate of capacity and referred the appellant to a physiologist for treatment of the thoracic spine. The Arbitrator considered that this evidence was corroborated by the text message to Mr Ritter, which was to the effect that the appellant suffered upper back pain, and provided compelling evidence that it was likely that the appellant suffered upper back pain in the incident on 26 March 2019, and not lower back pain.
The Arbitrator concluded that the incident on 26 March 2019 did not precipitate symptoms in, or aggravate, the appellant’s lumbar spine disease. The Arbitrator said that, as a consequence, the history provided to Dr Bentivoglio that the incident precipitated low back pain was incorrect.
The Arbitrator considered that Dr Bentivoglio drew a distinction between the incident on 26 March 2019 and the effect the work the appellant was performing for the respondent had on the appellant’s lumbar spine disease. The Arbitrator noted that Dr Bentivoglio referred to the incident on 26 March 2019 using the definitive article “the,” which denoted a specific injury, and when Dr Bentivoglio referred to the “injuries,” he was referring to back pain occurring before the incident on 26 March 2019. The Arbitrator noted that Dr Bentivoglio was of the opinion that the appellant’s employment was a substantial contributing factor to “the injuries,” that the appellant’s employment duties were a substantial contributing factor to the degeneration of the appellant’s spine, and thus, the appellant’s employment duties were an aggravation of an underlying condition.
The Arbitrator concluded that Dr Bentivoglio’s opinion that the “work injury,” that is the specific incident on 26 March 2019, was the main contributing factor to the aggravation of the degenerative lumbar spine condition was not persuasive and could not be accepted. The Arbitrator explained that the appellant suffered mid back or thoracic pain in that incident, rather than lower back pain.
The Arbitrator pointed out that Dr Casikar also obtained an incorrect history that the lumbar spine was injured in the specific injury, so that Dr Casikar’s opinion in that regard was also rejected.
The Arbitrator said that the appellant’s evidence in relation to his work duties made it clear that the work was heavy, arduous and repetitive, and involved climbing in and under machines and working in a difficult or awkward posture. The Arbitrator accepted that the appellant’s back became sore when he worked in the VE room and said that it was plausible that this work would have made more grave the effect of his lumbar spine disease, thereby aggravating the disease.
The Arbitrator referred to Dr Casikar’s acceptance that it was possible that by bending over and leaning into a machine in the VE room, the appellant may have suffered an aggravation of his lumbar spine disease. The Arbitrator indicated that this was a particular activity that the appellant was often called upon to undertake and was one of the many arduous tasks required of the appellant. The Arbitrator took the view that Dr Casikar’s opinion supported the allegation that this activity aggravated the underlying lumbar disease.
The Arbitrator said that Dr Bentivoglio’s evidence was that the appellant’s employment aggravated the underlying lumbar condition. The Arbitrator referred to Dr Bentivoglio’s opinion that the appellant would not be fit to perform heavy lifting or repetitive bending or twisting, and that the prognosis for a return to work was guarded. The Arbitrator inferred from that opinion that Dr Bentivoglio was aware of the nature of the appellant’s duties with the respondent.
The Arbitrator concluded that, having regard to:
(a)    the appellant’s evidence that his back became sore when working in the VE room;
(b)    the opinions of Dr Bentivoglio and Dr Casikar, and
(c)    the “To Whom It May Concern” letter written by Dr Balaraman on 6 March 2019,
he was satisfied and found that the work the appellant did for the respondent aggravated the appellant’s lumbar spine disease.
The Arbitrator proceeded to consider whether the appellant’s employment between November 2016 and 26 March 2019 was the main contributing factor to the aggravation of the appellant’s lumbar disease. The Arbitrator expressed the view that it was likely that other factors outside of the appellant’s employment contributed to the aggravation of the disease, namely:
(a)    the appellant’s normal domestic duties, the contribution from which he considered would be negligible in comparison to the appellant’s heavy work duties;
(b)    the fall down the stairs in February 2018, and
(c)    the appellant walking up and down stairs to access his fourth floor apartment, as reported to the appellant’s general practitioner.
The Arbitrator observed that all of those activities played a part in the development of the appellant’s symptoms. He said, however, that the evidence was not sufficient to enable him to evaluate the extent to which those factors contributed to the aggravation of the lumbar disease, although they were significant enough for the appellant to consult his general practitioners.
The Arbitrator pointed out that Dr Bentivoglio did not provide an opinion as to whether those factors made a contribution to the development of the symptoms in the lumbar spine or the extent of that contribution. The Arbitrator formed the view that Dr Bentivoglio’s evidence did not assist him in respect of the degree to which those matters contributed to the aggravation.
The Arbitrator acknowledged that it is not necessarily fatal to a worker’s case if there is no medical expert opinion explaining the role the non-work related factors contributed to the aggravation of the disease. He said, however, that in this case, where there was evidence of a contribution from non-work related factors, he required guidance from expert medical opinion as to the extent of those contributions. The Arbitrator said that the fact of all of those matters having aggravated the appellant’s lumbar spine, which was supported by the evidence, was a matter within common knowledge, but the interplay between contributing factors was not a matter within the realm of that common knowledge. The Arbitrator said that it required the evidence of a cogently reasoned expert medical opinion.
The Arbitrator said that, on the basis of the evidence before him, which was that there were other matters that were likely to have significantly contributed to the aggravation, he was unable to conclude that the work the appellant performed with the respondent was the chief, leading or main contributing factor. The Arbitrator reiterated that Dr Bentivoglio’s opinion was that the event on 26 March 2019 was the main contributing factor to the aggravation and did not explain why that was so. The Arbitrator said that it was inherent that Dr Bentivoglio was of the view that other factors contributed to the aggravation but did not explain what those factors were. The Arbitrator observed that Dr Bentivoglio would have had before him the x‑ray and CT scan performed on 6 September 2018 and the x-ray undertaken in January 2020, but it was not apparent what other information Dr Bentivoglio had available to him. The Arbitrator pointed out that, by having the radiological reports from September 2018, Dr Bentivoglio would have been aware of the fall in February 2018 that resulted in thoracic pain. Further, it was not apparent whether Dr Bentivoglio had available to him the general practitioners’ notes. The Arbitrator observed that, even if Dr Bentivoglio had knowledge of the other factors that played a role in the aggravation of the appellant’s lumbar disease, Dr Bentivoglio did not explain the part they played or why, in those circumstances, the appellant’s employment was the main contributing factor to the aggravation of the appellant’s lumbar disease, if that was Dr Bentivoglio’s opinion.

The Arbitrator concluded that in any event, he was not satisfied that the appellant’s employment was the main contributing factor to the aggravation of his lumbar disease.
The Certificate of Determination issued on 16 July 2020 records:
“The Commission determines:
1. There is an award for the respondent with respect to the applicant’s claim for compensation.”

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred on the following grounds:
(a)    Ground One: error of mixed fact and law in inferring that the appellant suffered a fall in February 2018 by relying on the histories in clinical records and denying the appellant procedural fairness by refusing the appellant’s application to rely on a statement addressing the issue;
(b)    Ground Two: having found the appellant suffered a fall in February 2018, the Arbitrator erred in fact by determining that the appellant suffered thoracic and lumbar symptoms as a result of that fall, and
(c)    Ground Three: error of law by the Arbitrator determining that he required expert opinion in order to determine the extent that any non-work factors contributed to the aggravation of the appellant’s lumbar spine.

LEGISLATION

Section 4 of the 1987 Act defines injury as follows:
“4      Definition of ‘injury’
In this Act:
injury
(a)    means personal injury arising out of or in the course of employment,
(b)    includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)    does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

SUBMISSIONS

Ground One

The appellant’s submissions

The appellant refers to the Arbitrator’s determination that the appellant suffered a significant fall on February 2018. The appellant says that the evidentiary basis for this determination was that:
(a) the appellant presented to Gosford Hospital where a significant history was recorded of the fall a year beforehand, and
(b) the appellant’s general practitioner’s notes recorded the fall in February 2018, with those histories being recorded in August and September 2018 and March, April and August 2019.
The appellant points out that, in his reasons, the Arbitrator, relying on Mason v Demasi,[39] stated that caution must be exercised when weighing the evidence contained in clinical histories contained in the course of treatment, particularly where that doctor has not provided statement evidence or has not been called to give oral evidence. The appellant submits that there were no contemporaneous records of the appellant having suffered that fall, despite the extensive clinical records in evidence. The appellant says that the only notations were those recorded months and even a year after the alleged event. The appellant contends that the existence of the fall was not a matter raised by either party.
[39] [2009] NSWCA 227.
The appellant submits that there was an insufficient evidentiary basis for finding such a fall occurred and by doing so the Arbitrator committed an error of fact. The appellant refers to Elias Bader t/as Genuine Kitchens v Workers Compensation Nominal Insurer,[40] as authority to say that failing to afford procedural fairness is an error that must be corrected unless it could not possibly have affected the outcome. The appellant further relies on that decision to say that a decision not based on a point raised by the parties or the Commission constitutes a denial of procedural fairness and can be challenged.
[40] [2018] NSWWCCPD 54 (Elias Bader Kitchens).
The appellant refers to the Arbitrator’s acknowledgment that the appellant had attempted to have the supplementary statement admitted into evidence. The appellant submits that it was the only evidence which directly addressed the existence or otherwise of the fall in February 2018 and that the Arbitrator denied the appellant procedural fairness by failing to admit the document. The appellant contends that by making the finding in relation to the fall and refusing the admission of the document, the Arbitrator has committed errors of both fact and law.

The respondent’s submissions

The respondent submits that the Arbitrator was correct to reject the appellant’s supplementary statement. The respondent points out that the document as filed and served the day before the arbitration and attempted to address the fall down the stairs in February 2018, of which there was evidence contained in the various clinical records annexed to the appellant’s ARD. The respondent refers to the Gosford Hospital Discharge Referral which recorded a significant history of trauma after a fall down stairs a year previously. The respondent submits that this evidence formed part of the appellant’s case and the appellant was clearly aware on 23 April 2020, if not before that time, of those entries.
The respondent submits that no explanation was given by the appellant as to why the statement was served at that late stage. The respondent says the admission was opposed because of lateness and the prejudice to the respondent that arose because of the new allegations made, which would require investigation. The respondent submits that the Arbitrator fairly exercised his discretion by weighing the competing factors on both sides in order to do justice between the parties. The respondent asserts that the prejudice to it was obvious as it had not had the opportunity to investigate the fresh allegations contained in the statement.
The respondent further submits that it made it clear at the outset of the arbitration that it intended to rely on the evidence of the fall in 2018 and the appellant then had the option to discontinue the proceedings without any prejudice other than some delay. The respondent says that the appellant then made a forensic decision to proceed without the evidence.
The respondent submits that this ground of appeal conflates the rejection of the appellant’s late statement and the Arbitrator’s assessment of the evidence of the fall in February 2018. The respondent contends that the Arbitrator was correct to find that the appellant injured his lower back in the fall in February 2018.
The respondent refers to the appellant’s submission that there was no contemporaneous record of the fall and describes that submission as “odd” in circumstances where there were many entries in the clinical records where the appellant’s own history was of the fall and the lower back symptoms that were a consequence of the fall. The respondent submits that the Gosford Hospital Discharge Referral was not the only evidence about the fall and the Arbitrator identified those various entries in the clinical notes. Further, the respondent says that the Arbitrator was well aware that a cautionary approach was required when assessing that evidence.
The respondent submits that there was ample evidence to support the Arbitrator’s finding in relation to the fall in February 2018 and that this ground of appeal has failed to demonstrate any error of fact, law or discretion in respect of the Arbitrator’s refusal to admit the late statement and the finding that the lower back was injured in February 2018.

Ground Two

The appellant’s submissions

The appellant refers to the Arbitrator’s finding that the appellant suffered a work-related injury to his thoracic spine on 26 March 2019, a finding which was based on a clinical note recorded on 26 March 2019 and a mobile phone text message which, in effect, said the appellant was suffering from upper back pain. The appellant contends that the Arbitrator also concluded that the appellant’s employment had aggravated the appellant’s lumbar symptoms, which was supported by the evidence from the forensic medical experts and a letter written by the appellant’s doctor in March 2019.
The appellant submits that the Arbitrator concluded, on the basis of clinical records in September 2018 and the x-ray undertaken at that time, that the fall in February 2018 resulted in a thoracic spine injury. The appellant submits, however, that the Arbitrator went on to find the lumbar spine was also injured in February 2018 on the basis of the evidence recorded a year or more after the fall. The appellant contends that this conclusion was not open to the Arbitrator in the absence of a medical opinion as to causation which supported such a conclusion and in circumstances where there was no medical evidence addressing the fall and its consequences. The appellant submits that the Arbitrator had already found that the appellant’s employment had aggravated the lumbar symptoms.
The appellant submits that the Arbitrator, having found that there was a work-related aggravation in March 2019, did not consider the effect of the work-related aggravation and instead attributed the lumbar complaints in April 2019 and May 2019 to the fall in 2018. The appellant asserts that the Arbitrator thereby committed an error of fact.

The respondent’s submissions

The respondent submits that there was ample evidence of the appellant having fallen down stairs in February 2018 and that it was open to the Arbitrator to find that the appellant suffered thoracic and lumbar symptoms as a result of that fall. The respondent asserts that the Arbitrator considered the evidence in relation to the lumbar symptoms arising from that incident in great detail. The respondent points out that the appellant did not disclose the fall in February 2018 in his statement dated 22 April 2020 or to his own forensic expert, Dr Bentivoglio.
The respondent contends that the Arbitrator’s finding that the fall in February 2018 involved lumbar spine complaints does not require “medical evidence requiring an opinion as to causation,” as asserted by the appellant. The respondent asserts that the significance of the fall should have formed part of the history of lower back symptoms and complaints given to the medical expert, Dr Bentivoglio, who was required to provide an opinion on causation of the claimed work-related injuries. The respondent submits that, contrary to the appellant’s submissions, the non-work related lower back problems were required to be considered by the Arbitrator when weighing up all the factors, both work and non-work related, in determining whether the appellant’s employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.

Ground Three

The appellant’s submissions

The appellant points out that the Arbitrator concluded that it was likely that non-work related factors contributed to the aggravation of the appellant’s lumbar disease, in particular the fall in 2018 and the appellant using stairs to his fourth floor apartment in August 2018. The appellant also refers to the Arbitrator’s observations that the evidence did not sufficiently enable him to determine precisely the extent of those contributions and that he required guidance from an expert medical opinion.
The appellant relies on the decision of the Court of Appeal in Tudor Capital Australia Pty Limited v Christensen[41] to say that the Commission is required to base its conclusions on probative material so that the conclusions are not capricious, arbitrary or without foundation. Further, the Commission is required to apply logic and common sense in determining which expert view is to be preferred and which evidence is to be accepted. The appellant contends that the Arbitrator declined to determine which of the factors was the main contributing factor to the appellant’s injury and in doing so failed to make the decision he was tasked to make. The appellant asserts that, by declining to undertake that exercise, the Arbitrator committed an error of law.
[41] [2017] NSWCA 260.

The respondent’s submissions

The respondent submits that this ground of appeal is misconceived. It points out that the only medical expert who provided an opinion in support of the “nature and conditions” claim was the appellant’s own expert, Dr Bentivoglio. The respondent submits that, in order for the opinion of Dr Bentivoglio to carry weight in respect of the test of causation, it needed to be founded on a proper history of the appellant’s back issues. The respondent says that the Arbitrator gave a detailed analysis of that opinion and, based on sound reasoning, rejected the opinion. The respondent submits that the appellant has failed to demonstrate any error of fact by rejecting that evidence.
The respondent submits that it disputed both the occurrence of the injury on 26 March 2019 and the nature of the injury, relying on the observations of Roche DP in Jaffarie v Quality Castings Pty Ltd.[42] That is, the injurious event is the mechanism of injury but the relevant injury for the purpose of s 4 of the 1987 Act is the pathology (the physiological change) that arose out of or in the course of employment.
[42] [2014] NSWWCCPD 79.
The respondent says that the Arbitrator accepted that an incident occurred on 26 March 2019, but found that the evidence did not support the assertion that the lumbar spine was injured in that incident. Rather, the appellant suffered a thoracic spine injury. The respondent submits that the Arbitrator’s conclusion was open to him on the evidence, which included:
(a)    the entry in the clinical note made by Dr Kostyrka on 26 March 2019 that clearly referred to the mid-back, rather than the lower back;
(b)    the clinical note included multiple references to the “mid-back,” “central mid back,” “pain at T6–8 area” and “some pain on thoracic rotation, left side only,” and
(c)    the certificate of capacity dated 26 March 2019 recorded a diagnosis of thoracic back pain.
The respondent asserts that the Arbitrator exercised the appropriate caution when dealing with the clinical records. It submits that the Arbitrator’s finding was a finding of fact, was available on the evidence and the appellant has failed to demonstrate any error of fact or law in respect of that finding.
The respondent refers to the appellant’s claim that the “nature and conditions” of the appellant’s employment, including the incident on 26 March 2019, was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the appellant’s pre-existing lumbar disease condition.
The respondent says that the Arbitrator determined that the appellant’s work may have caused such an aggravation, but noted that there was a “critical issue” as to whether the appellant’s employment was the main contributing factor to that aggravation, in accordance with s 4(b)(ii) of the 1987 Act. The respondent submits that the appellant carried the onus of proving what was a factual question. The respondent refers to the decision of in AV v AW,[43] in which Snell DP observed:
“Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”[44]
[43] [2020] NSWWCCPD 9 (AV v AW).
[44] AV v AW, [76]–[77] (footnotes omitted).
The respondent also refers to Snell DP’s summation of the relevant principles that followed in that decision, namely that in determining the question of the “main contributing factor”:
(a)    the test is more stringent than that of “substantial contributing factor” contained in s 9A of the 1987 Act;
(b)    there can only be one “main contributing factor”;
(c)    the test is one of causation requiring consideration of all of the evidence of both work and non-work related factors, and not purely the medical evidence;
(d)    medical evidence addressing the issue is relevant and desirable, but the absence of such evidence is not necessarily fatal, and
(e) for the purpose of s 4(b)(ii) of the 1987 Act, the employment is required to be the main contributing factor to the aggravation, not the underlying disease.[45]
[45] AV v AW, [78].
The respondent submits that the Arbitrator weighed up all of the relevant factors, which were the appellant’s work duties, the fall in February 2018, ascending and descending the stairs to the appellant’s apartment and the lower back issues since 2002. The respondent points out that there was no evidence from a treating medical practitioner that supported the assertion that the appellant’s work duties either aggravated or “triggered” the appellant’s lumbar back symptoms.
The respondent refers to the appellant’s submission that the Arbitrator declined to determine, on the basis of the evidence before him, the question of which of those factors was the main factor. The respondent contends that this assertion applies the wrong test and misunderstands the requirement in s 4(b)(ii) and the test of causation. The respondent submits that the Arbitrator was not required to determine which factor was the main contributing factor in circumstances where he was not persuaded on the balance of probabilities that the appellant’s employment was the main contributing factor to the aggravation of the lumbar spine disease. The respondent asserts that the Arbitrator’s conclusion was correct.

THE RELIEF SOUGHT

The appellant seeks to have the Arbitrator’s determination set aside and the matter remitted to another arbitrator for re-determination.
The respondent submits that the appeal should be dismissed.

CONSIDERATION

Ground One: error of mixed fact and law in inferring that the appellant suffered a fall in February 2018 by relying on the histories in clinical records and denying the appellant procedural fairness by refusing the appellant’s application to rely on a statement addressing the issue

The appellant complains that the entries in the clinical records about the fall in February 2018 were not contemporaneous and were therefore not reliable in terms of establishing that the fall occurred, causing injury to the lumbar spine. The appellant submits that there was an insufficient evidentiary basis to support the Arbitrator’s finding.
The numerous entries in the clinical notes referring to low back pain with an onset in February 2018 were recorded by:
(a)    Dr Lau of the Toukley Family Practice on 1 March 2019, 6 March 2019, 3 April 2019 and 23 April 2019;
(b)    Dr Meeran of the Coastal Health Medical Centre on 7 August 2019 and 6 September 2019, and
(c)    Dr Stock, the medical officer who completed the Gosford Hospital Discharge Referral dated 19 March 2019.
In Centrelink medical certificates dated 6 March 2019 and 3 April 2019, Dr Lau diagnosed lumbar back symptoms with an onset in February 2018, as did Dr Meeran on 7 August 2018 and 16 September 2019.
In other words, each of these doctors from three different medical facilities consistently recorded the same history. The evidence recording these histories was part of the appellant’s case and no evidence was adduced to challenge the correctness of those histories. That is, that the appellant suffered a fall down stairs in February 2018 which caused lumbar symptoms on the background of previous lumbar complaints. The consistency of the evidence from those three practitioners makes the evidence of the fall compelling, particularly in the light of the appellant’s failure to deny that the event occurred.

As the respondent submits, the appellant made a forensic decision to proceed without the appellant’s supplementary statement, but in any event, even if the statement was in evidence, the appellant did not deny the fall, or that the fall caused lumbar symptoms. In those circumstances, it was open to the Arbitrator to conclude that the lumbar spine was injured in that event.
The appellant contends that the fall was not a matter raised by either party. The appellant relies on Elias Bader Kitchens to argue that a decision not based on a point raised by the parties or the Commission constitutes a denial of procedural fairness and can be challenged. The point was clearly raised by the respondent and is recorded in the transcript, where counsel for the respondent, before the arbitration commenced, advised:
“And just to, so it’s absolutely clear, and I, so my friend is under no misapprehension, I will, on the evidence, be making a great deal of the fact that in those records there is reference to a significant history of trauma to the lower back after falling down stairs one year before this incident.”[46]
[46] Transcript of proceedings (T), Black v Inghams Enterprises Pty Ltd [2020] NSWWCC 241, T 23.14–20.
The Arbitrator also drew the appellant’s attention to the relevance of the fall in February 2018, particularly in terms of whether there was a “fair climate”[47] in which to accept Dr Bentivoglio’s opinion, in the absence of that history being included in the history to the medical expert.[48] In addition, the appellant made submissions about the relevance of the fall.[49] The Arbitrator did not deny the appellant procedural fairness in making the finding. The issue was squarely raised and the appellant was given the opportunity to make appropriate submissions.
[47] Paric v John Holland (Constructions) Pty Limited, [1985] HCA 58; 62 ALR 85; 59 ALJR 844.
[48] T 34.5–35.7; T 37.5–9; T 39.17–40.27.
[49] T 39.1–11.
The appellant further submits that the Arbitrator denied the appellant procedural fairness by failing to admit into evidence the appellant’s supplementary statement dated 1 July 2020.
Section 290 of the 1998 Act requires each party to a dispute to provide the other party with such information and documents as and when the Workers Compensation Commission Rules 2011 (the 2011 Rules) require.
Rule 10.3 of the 2011 Rules provides:
“10.3 Material to be lodged in proceedings
(1)     For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve, with the dispute application or reply, all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings and:
(a) where the proceedings are commenced by a worker, a written statement of the evidence to be given by the worker, signed by the worker; and
(b) where a party proposes to rely on the oral evidence of a witness, the party must lodge and serve a document containing:
(i) the name of the witness, and
(ii) a written statement of the evidence to be given by the witness and signed by the witness; and
(c) where the proceedings include a claim for weekly payments of compensation, the employer must provide a schedule of all weekly payments of compensation paid including the amounts and periods.
(2)     Subject to subrules (3)–(4), a party may not introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Workers Compensation Guideline made under that Act.
(3)     Where a party wishes to rely on a document not lodged and served in compliance with section 290 of the 1998 Act and subrule (1), the party must:
(a) as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties; and
(b) not later than 5 working days prior to a medical assessment or telephone conference, on one occasion only and by the approved form, lodge all documents not previously lodged; and
(c) not later than 5 working days prior to an arbitration hearing, on one occasion only and by the approved form, lodge all documents not previously lodged.
(4)     The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2) provided the party complies with subrule (3) or the Commission gives the party leave to lodge additional documents.”
The Arbitrator’s decision as to whether the documents sought to be relied upon should have been admitted is a discretionary exercise. In Micallef v ICI Australia Operations Pty Ltd,[50] Heydon JA (as his Honour then was) observed:
“It is necessary to bear in mind some submissions of the defendants to the effect that a discretionary judgment can only be overturned in limited circumstances ...
Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a)     made an error of legal principle;
(b)     made a material error of fact;
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[51]
[50] [2001] NSWCA 274 (Micallef).
[51] Micallef, [45].
In Hamod v State of New South Wales[52] Beazley JA (as her Honour then was) made the following observations (citations omitted):
“The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, thediscretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation.
The court’s concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit. Nor, in this State, is it divorced from the court’s statutory obligation to ensure the just, quick and cheap resolution of the real issues in the dispute or proceedings.
For these reasons, before an appellate court will interfere with a discretionary judgment in a matter of practice and procedure, the question whether injustice flowed from the order appealed from will be a relevant and necessary consideration.”
[52] [2011] NSWCA 375, [134]–[136] (Hamod).
Particularly relevant to matters arising in the Commission, Byron DP in Coles Myer Limited v Tabassum[53] set out the matters that an arbitrator is required to take into account when considering whether a document ought to have been admitted. Those matters are:
(a)    whether there was an acceptable explanation for the delay;
(b)    whether or not a refusal to admit the evidence would cause substantial prejudice to the party seeking to tender the evidence;
(c)    the prejudice (if any) to the other party;
(d)    whether the delay was attributable to the legal representative and not the party personally;
(e)    the nature of the proceedings, and in this case the nature of the statutory scheme, and
(f)    general considerations of fairness and justice between the parties.[54]
[53] [2005] NSWWCCPD 16 (Tabassum).
[54] Tabassum, [18].
It is not disputed that the late document, which was a supplementary statement from the appellant, sought to explain entries in the general practitioner’s clinical notes and the notes from Gosford Hospital Emergency Department. Those documents were attached to the Application to Resolve a Dispute (ARD) and referred to the appellant having suffered a fall in February 2018.
The appellant asserts that the Arbitrator should have admitted the document and by failing to do so denied the appellant procedural fairness. The appellant says that it was the only direct evidence that addressed the existence or otherwise of the fall in February 2018. The appellant refers to relevant evidence in the records of Gosford Hospital and the general practitioner’s clinical notes, which were not contemporaneously recorded, but were recorded some months and up to a year after the alleged event. The appellant asserts that the existence or otherwise of the fall “was not a matter that was raised by either party”[55] and that by not allowing the appellant to address the evidence, the Arbitrator denied the appellant procedural fairness.
[55] Appellant’s submissions, [3].
The respondent contends that the Arbitrator was correct to reject the supplementary statement because:
(a)    the document was filed and served the day prior to the arbitration;
(b)    the statement was an attempt to address histories provided in documents that were attached the appellant’s ARD;
(c)    as the entries in the hospital and clinical notes were part of the appellant’s case, the appellant was clearly aware of the entries at and prior to the time the proceedings were commenced;
(d)    no explanation was given by the appellant for the delay in attempting to file the supplementary statement, and
(e)    the document contained a number of new allegations which, if admitted, the respondent would need to investigate.
The respondent submits that the Arbitrator appropriately identified and weighed the competing factors between the appellant and the respondent in order to do justice between the parties. The respondent says that the prejudice to the respondent was obvious.
The Arbitrator delivered oral reasons at the commencement of the arbitration as to why the late document would not be admitted. He said:
“[I]n terms of the statement of Mr Black dated 1 July 2020, I refuse the application for that to be introduced into evidence because the respondent would, in my view, be prejudiced by the introduction of that into evidence. This is a situation where the issue of [the] February 2018 fall was squarely raised in the materials that the applicant put on with its ARD. It is something that could have been explained by the applicant in a statement at that time. Had that been the case that would have allowed the respondent the opportunity to check those matters with its own staff. That is, whether in February 2018 Mr Black, the applicant, was climbing up and down ladders at that time. And if I were to allow that statement to get into evidence then essentially the respondent is denied that opportunity that would, in my view, work a prejudice to the respondent. The applicant always has the ability to discontinue and to represent the case in a way in which it can ensure the evidence still gets in without that prejudice being suffered to the respondent. So, on balance, it seems to me that the prejudice that is caused to the respondent by allowing the statement in [is] far outweighed by any prejudice that would be caused to the applicant by not allowing it in because the applicant’s always got the ability to do it again properly.
So, just by summary … I decline the applicant’s application for his statement of 1 July 2020 to go into evidence.”[56]
[56] T 25.4–32.
The appellant gave no explanation to the Arbitrator as to why the evidence, which was an attempted response to the hospital and clinical notes adduced into evidence by the appellant in his own case, could not have been filed either with the ARD or within a reasonable time before the arbitration. The appellant merely asserted that he would suffer prejudice if the document was not admitted. The respondent gave cogent reasons as to why the document should not be admitted, which included the fact that there was no explanation for the delay and that the evidence would require it to undertake an investigation of the new circumstances alleged by the appellant. The Arbitrator pointed out that any prejudice to the appellant could be cured by the appellant discontinuing the proceedings and starting fresh proceedings. The Arbitrator considered that the prejudice to the respondent outweighed that of the appellant. In accordance with the principles discussed by Beazley JA in Hamod, the Arbitrator’s primary obligation was to ensure a fair trial to the parties to the litigation, in the context of delivering the objectives of the Commission.
The appellant has not identified any error of legal principle, material error of fact or that the Arbitrator had taken into account an irrelevant matter or failed to take into account or give sufficient weight to a relevant matter. Nor has the appellant identified error on the part of the Arbitrator by arriving at a result so unreasonable or unjust that it would suggest errors of the kind, as identified in Micallef, occurred. There is therefore no basis upon which to disturb the Arbitrator’s decision in respect of refusing to admit the document which the appellant sought to tender at such a late hour.
For the above reasons, it follows that Ground One of the appeal fails.

Ground Two: having found the appellant suffered a fall in February 2018, the Arbitrator erred in fact by determining that the appellant suffered thoracic and lumbar symptoms as a result of that fall

The appellant submits that the Arbitrator erred, firstly in determining that the appellant injured his thoracic spine in the fall in 2018. Whether the thoracic spine was injured in the fall is not relevant to the issues that were in dispute before the Arbitrator and it is not necessary to consider that finding.
The appellant also submits that the Arbitrator erred in concluding that the appellant injured his lumbar spine in the fall in 2018 when the only evidence to support that conclusion was recorded a year or more after the incident.
I have discussed the evidence upon which the Arbitrator concluded that the lumbar spine was injured in the fall. I have also explained why that evidence was compelling. The fact that the entries were recorded a year after the event does not detract from the fact that the history was consistently recorded by three different practitioners from three different facilities. In those circumstances, it was likely to have been the history provided to the doctors by the appellant himself. The entries clearly refer to the incident as causing lumbar symptoms. It was open to the Arbitrator, on that evidence, and in the absence of any evidence to the contrary, to arrive at that conclusion, which was a finding of fact.
In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[57] have been consistently applied in the Commission. Adopting those principles, in order to disturb the Arbitrator’s finding, the appellant must establish that:
(a)     other probabilities so outweigh that chosen by the Arbitrator that it can be said that his conclusion was wrong;
(b)     the fact upon which the inference drawn by the Arbitrator is based must be wrong, or
(c)     material facts were overlooked, or given undue or too little weight, or the available inference in the opposite sense was so preponderant that the Arbitrator’s decision is wrong.
[57] (1966) 39 ALJR 505.
The appellant has not established that any of those errors have occurred and the appellant’s submission is rejected.
The appellant asserts that the finding was not open to the Arbitrator without medical opinion to support the causal connection. Again, there was ample evidence to support the Arbitrator’s conclusion and there was no evidence to the contrary. The Arbitrator was entitled to determine the causal connection between the fall in 2018 and the lumbar symptoms on the basis of the factual evidence before him. In the circumstances of this case, it was not necessary for a medical expert to provide an opinion on the causal connection.
The appellant also asserts that the Arbitrator did not consider the work-related aggravation in March 2019 and instead attributed the lumbar complaints to the fall in 2018. The submission cannot be accepted. If the appellant is referring to the injury on 26 March 2019, the Arbitrator gave a detailed consideration of the evidence pertinent to that injury. He accepted the incident had occurred but, in the context of the other contemporaneous evidence, that evidence did not establish injury to the lumbar spine.
The Arbitrator did not simply attribute the lumbar symptoms to the fall in 2018. He found that the appellant suffered an aggravation of his degenerative lumbar disease as a result of the heavy nature of the work performed by the appellant over the period of his employment with the respondent.
The appellant complains that the Arbitrator “failed to take into consideration relevant evidence and thereby committed an error of fact.”[58] The appellant does not identify any such relevant evidence that the Arbitrator failed to consider. In fact, the Arbitrator gave detailed consideration to all of the available, relevant evidence. The submission is rejected.
[58] Appellant’s submissions, [12].
For the above reasons, Ground Two of the appeal fails.

Ground Three: error of law by the Arbitrator determining that he required expert opinion in order to determine the extent that any non-work factors contributed to the aggravation of the appellant’s lumbar spine.

The appellant correctly cites Tudor Capital as authority for the proposition that an arbitrator is required to base his or her conclusions on probative material to ensure that the conclusions reached are not capricious, arbitrary or without foundation. Further, when making a choice between competing expert evidence, the Arbitrator is required to use logic and common sense in determining which view is to be preferred.
The appellant does not explain how that authority is applicable to this appeal. As the respondent submits, the only medical opinion that supported the claim that the heavy nature of the appellant’s employment with the respondent caused injury was that of Dr Bentivoglio. Thus, Dr Bentivoglio was the only medical expert to express a view as to whether the respondent’s employment was the main contributing factor to the aggravation of the appellant’s lumbar disease. There was no competing medical evidence for the Arbitrator to consider preferable. The Arbitrator was, however, required to assess the probative value of that opinion. As Dr Bentivoglio did not record a proper history of the appellant’s lumbar issues, the Arbitrator reached the conclusion that there was not a fair climate within which to accept Dr Bentivoglio’s unreasoned opinion that the appellant’s employment was the main contributing factor to the aggravation of the appellant’s lumbar disease. The Arbitrator gave sound reasons for rejecting Dr Bentivoglio’s opinion and his conclusion was not capricious, arbitrary or without foundation.
The appellant alleges that the Arbitrator erred by “declining” to undertake the exercise of determining whether the appellant’s employment was the main contributing factor to the aggravation of the appellant’s lumbar disease. The question to be determined by the Arbitrator was a factual question and was required to be determined on the basis of the evidence before him. The Arbitrator concluded that he did not have any probative evidence before him that would assist him to make that determination. The appellant does not point to any such evidence that the Arbitrator may have overlooked or given too little weight, or that was so compelling that the Arbitrator erred by not accepting it.
The onus rests on the appellant to adduce sufficiently probative evidence to support the assertions made. The Arbitrator considered that the appellant’s evidence did not reach the necessary bar so that he was unable to determine which of the factors that contributed to the aggravation of the appellant’s lumbar disease was the main contributing factor. He did not decline to undertake the task he was required to determine.

The appellant asserts that the Arbitrator erred by concluding that he required guidance from a medical expert as to the extent of the contribution from the various factors that played a part in the aggravation of the appellant’s lumbar disease. It is correct to say that the absence of medical evidence addressing the issue is not necessarily fatal, as observed by Snell DP in AV v AW. However, in this case, there was no factual evidence sufficient to indicate that any one of the factors the Arbitrator considered contributory constituted the main contributing factor. In the context of the evidence before him, the Arbitrator was entitled to form the view that, without medical opinion addressing the question, he could not arrive at the relevant conclusion.
For the above reasons, Ground Three of the appeal also fails.

CONCLUSION

An appeal from a decision of an Arbitrator to a Presidential member is limited to the identification of error of either fact, law or discretion and to the correction of such error.[59] The appellant has failed to establish any relevant error on the part of the Arbitrator. The Arbitrator’s Certificate of Determination is therefore confirmed.
[59] Section 352(5) of the 1998 Act.

DECISION

Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act1998.
The appellant’s application to adduce further evidence on the appeal is refused.
The Arbitrator’s Certificate of Determination dated 16 July 2020 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

30 November 2020