Blacktown City Council v Brassington
[2023] NSWPICPD 55
•6 September 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Blacktown City Council v Brassington [2023] NSWPICPD 55 |
APPELLANT: | Blacktown City Council |
RESPONDENT: | Gregory Brassington |
INSURER: | Self-insured |
FILE NUMBER: | A1-W1799/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 6 September 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 19 September 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 – injury can have multiple causes – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 applied – adequacy of reasons – reasons must be read as a whole – Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr F Doak, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Ms E Grotte, counsel | |
| Turner Freeman Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms E Beilby |
DATE OF MEMBER’S DECISION: | 19 September 2022 |
INTRODUCTION AND BACKGROUND
Mr Gregory Brassington (the respondent) was employed as a maintenance worker by Blacktown City Council (the appellant). He commenced work in 1999. His employment was terminated in 2018 as he was no longer fit to perform his duties. His duties included driving, mowing, garden maintenance, climbing in and out of a trucks, sawing trees, moving branches and cleaning. He was required to use equipment such as a mower, an edger, a back-pack, a whipper-snipper and a brush-cutter.
The respondent was involved in a motor vehicle accident on 12 October 2000 when he was a passenger in the appellant’s truck and the truck crashed into an electricity pole. The respondent suffered an injury to his right knee when it hit the dashboard with force. He also suffered an injury to his lumbar spine. The respondent made a claim in respect of the injury to the right knee, which was accepted.
In 2008, the respondent made a claim in respect of an injury to his left shoulder caused by the nature of the work he was performing for the appellant. That claim was accepted.
In 2019, the respondent brought proceedings in the Workers Compensation Commission (the predecessor to the Personal Injury Commission), seeking an order that the need for a total right knee replacement as recommended by his treating orthopaedic surgeon, Dr Sherif Rizkallah, was reasonably necessary as a result of both the frank injury on 12 October 2000 and the ‘nature and conditions’ of his employment. The then Arbitrator, Ms R Homan, determined that the surgery was reasonably necessary as a result of the injury that occurred on 12 October 2000. She was of the view that it was unnecessary for her to determine whether the ‘nature and conditions’ of the respondent’s employment also materially contributed to the need for the surgery.
In 2020, the respondent lodged a claim for the cost of a left hip replacement proposed by Dr Rizkallah on the basis that he had suffered injury to the left hip as a consequence of the ‘nature and conditions’ of his employment. The claim was denied, and the respondent commenced proceedings in the Workers Compensation Commission.
The Workers Compensation Commission was abolished by operation of Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The dispute then became a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date.[1] The dispute came before a Member of the Commission, Ms J Snell, who issued a Certificate of Determination on 14 April 2021. Member Snell found that the respondent suffered an injury to his left hip with a deemed date of injury “in or about August 2016”, which was the last date the respondent physically worked for the appellant, the respondent’s employment was the main contributing factor to the injury, and the proposed surgery was reasonably necessary as a result of the injury.
[1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The current dispute is in respect of a claim made by the respondent for the costs associated with a right hip replacement proposed by Dr Rizkallah. The respondent alleged that his right hip condition was caused by the injury on 12 October 2000, and as a result of the heavy and the repetitive nature of the work he performed in the course of his employment between 1999 and 2018.
The dispute was determined by Ms E Beilby, a Member of the Commission. The Member determined that the respondent had suffered an injury to his right hip within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) and that the surgery was reasonably necessary as a result of the injury.
The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined without the need for an oral hearing.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE EVIDENCE
The respondent’s statement evidence
The respondent provided a statement dated 15 April 2019.[2] He advised that he commenced work with the appellant as a maintenance worker in 1999. He stated that his duties involved driving, garden maintenance, and cleaning, which duties mostly involved lifting and bending. He described the work as physically challenging and said that he would feel sore after a day’s work, but he did not need any time off.
[2] Application to Resolve a Dispute (ARD), pp 1–3.
The respondent indicated that on 12 October 2000 he was travelling as a passenger in the front of a work truck that was involved in an accident when the truck ran into an electricity pole and his right knee forcefully hit the dashboard of the truck. He said he experienced severe whiplash which caused significant pain in his lumbar spine area and his right knee. The respondent said that his general practitioner, Dr Christopher Soo, certified that he had no capacity for work for one week and then was fit for selected duties, but, on his return to work, the appellant required him perform his normal duties. He described the work as heavy and physically intensive with repetitive lifting and bending, and involving lawn mowing, edging, whipper-snippering, picking up rubbish, sawing trees and moving branches, all of which continued to aggravate his knee and back pain. He stated that he experienced a constant ache in his lumbar spine and the work, especially when lifting and bending, aggravated those symptoms.
The respondent asserted that following the truck accident, he commenced experiencing right hip symptoms in the nature of a dull ache in his right hip which was particularly painful when the work required bending, twisting or repetitive lifting. He said that the pain would often interfere with his sleep at night. The respondent advised that Dr Freddy Azar, general practitioner, arranged for him to undergo physiotherapy for the pain in his knee, lumbar spine and right hip, which was of some assistance. The respondent said that in about October 2006, he experienced an increase in right knee pain while walking to work, and Dr Soo referred him to Dr Sherif Rizkallah, orthopaedic surgeon. He described the treatment provided by Dr Rizkallah in respect of the right knee, which included knee replacement surgery on 6 November 2016. He said that the knee symptoms improved but he still experienced difficulties, particularly when:
“mowing, edging, doing two man’s work when someone was absent, pushing the heavy mower and edger, blowing the heavy backpack, walking around the many infrastructures with the equipment, getting in and out of the truck, climbing up and down the truck, opening the heavy ramps/gates, bending down to get rubbish and driving the deck onto the trailer.”[3]
[3] Respondent’s statement dated 15 April 2019, [10], ARD, p 2.
The respondent provided an overview of the medical treatment he was given, including pain relief medication. He stated that his pain worsened with work activities so that in 2008, he began to avoid some work duties. He added that at that time, he developed left shoulder pain as a result of lifting and using the equipment he was given to use, and required surgery performed by Dr Rizkallah on 13 December 2008. He said that the cost of the surgery was met by the appellant. He said he also developed numbness and pain in both hands particularly after working for a length of time, and in 2011 he began to experience left and right hip pain, which restricted his ability to work.
The respondent indicated that he continued to experience pain in all of the affected areas and that both of his hips were stiff and sore, for which he took pain killing medicine. The respondent described his ongoing difficulties and said that in 2018, his employment was terminated because of his inability to fulfil his position.
The respondent provided a supplementary statement dated 25 November 2020,[4] confirming that he continued to experience pain in his right hip. He said:
“Following the incident on 12 October 2000, I began to experience a dull, aching pain in my right hip. I would notice this pain to be most painful when I was bending, twisting or repetitively lifting at work. The pain would keep me up at work [sic].”[5]
[4] ARD, p 4.
[5] Respondent’s statement dated 25 November 2020, [6].
The respondent advised that Dr Rizkallah had recommended surgery to his right hip, which the respondent had decided to undergo in order to relieve his symptoms.
The respondent provided a further statement dated 17 March 2022.[6] He said that since the accident on 12 October 2000, his hip symptoms had deteriorated over time and were more noticeable when he was bending, twisting or lifting at work, although his focus was more on his other, more troublesome injuries. The respondent stated that he had exhausted all other treatment options and had elected to undergo the right hip surgery because he could no longer bear the pain.
[6] ARD, p 5.
Dr Freddy Azar, general practitioner
Dr Freddy Azar, the respondent’s general practitioner, reported to the respondent’s solicitors on 22 October 2021.[7] Dr Azar provided a history of the injury to the right knee on 12 October 2000 and detailed the treatment provided. He advised that the respondent had suffered a number of work-related injuries, including the left shoulder, the lumbar spine and “bilateral chondral wear injuries” of his hips.[8] Dr Azar considered that the respondent’s injuries were either wholly or in part caused by his employment and his hip injuries had developed as a consequence of overload because of his inability to weight bear on his right knee for an extended period of time. He was of the view that the respondent’s employment was a substantial contributing factor to the bilateral hip conditions because the altered dynamics caused by the right knee injury had accelerated and “accentuated” the bilateral hip disease. He considered that the respondent’s employment was a substantial contributing factor to the right hip condition and that the surgery to the right knee was reasonably necessary.
[7] ARD, pp 95–97.
[8] ARD, p 96.
Dr Azar provided an earlier report dated 4 October 2018.[9] He advised that the respondent had suffered a number of injuries at work and provided details of those injuries. In relation to the bilateral hips, Dr Azar reported that the respondent suffered right hip pain at the time of the truck accident, which was subsequently exacerbated by bending, trunk twisting and repetitive lifting. He opined that the right hip injury resulted from the accident and the left hip injury was caused by repetitive manual lifting and handling at work.
[9] ARD, pp 99–102.
An x-ray report of the pelvis and right hip dated 11 January 2006 was in evidence, which reported a normal appearance.[10]
[10] ARD, p 116.
Dr Azar’s clinical notes were in evidence although are largely illegible.[11] The notes did, however, disclose that the respondent attended for treatment of:
(a) his right hip on 10 January 2006;[12]
(b) both hips on 4 October 2011[13] and 21 January 2014,[14] and
(c) his right hip on 18 December 2018.[15]
[11] ARD, pp 298–780.
[12] ARD, p 341.
[13] ARD, p 353.
[14] ARD, p 355.
[15] ARD, p 359.
On 25 February 2013, Dr Azar referred the respondent to Crystal Physiotherapy in respect of right knee pain and right hip pain, which was noted to be work-related.[16]
[16] ARD, p 816.
On 3 February 2017, Dr Azar wrote a further letter of referral. It was not apparent as to whom the referral was made. Dr Azar noted the respondent suffered from persistent pain in the right knee, bilateral hips, left shoulder and both hands. He provided a history of the respondent having been forced to perform more strenuous activities at work which compounded his injuries, and he certified the respondent as being unfit for any duties at that time.[17] Dr Azar referred the respondent to Dr Rizkallah for an opinion in respect of the respondent’s bilateral hip pain.[18]
[17] ARD, p 615.
[18] ARD, p 627.
Dr Azar issued a number of Workcover certificates of capacity.[19] Various certificates issued between 21 January 2014 and 23 September 2020 referred inclusively to work-related injuries to the right knee, lumbar spine, left shoulder and both hips.
[19] ARD, pp 133–215.
Dr Sherif Rizkallah, orthopaedic surgeon
Dr Sherif Rizkallah, orthopaedic surgeon, provided a report dated 12 December 2018 directed to the respondent’s solicitor.[20] He advised that the respondent consulted him for the first time on 26 September 2006 in respect of the right knee injury. He described the treatment that followed, including surgery to the knee on 6 November 2006. He reported that the respondent returned to see him on 24 September 2008 in relation to his left shoulder injury and a carpal tunnel syndrome in the left hand, but also continued to see him in relation to increasing problems with the right knee.
[20] ARD, pp 87–91.
On 5 March 2019, Dr Rizkallah again corresponded with the respondent’s solicitor.[21] He advised that the ‘nature and conditions’ of the respondent’s employment following the truck accident caused a further aggravation of the respondent’s right knee injury and “may have resulted in” deterioration of the lumbar spine and left shoulder function.
[21] ARD, p 92.
Dr Rizkallah said that the respondent consulted him on 21 June 2017 in respect of the symptoms in the right knee but also complained of pain in both hips.
From 2 July 2020, Dr Rizkallah communicated with the appellant about the respondent’s proposed right hip surgery and requested approval for the surgery to proceed.
On 22 October 2020, Dr Rizkallah wrote to the Unified Healthcare Group and advised that the respondent had injured both hips during the course of his employment.[22] He advised that he had examined the respondent on 10 June 2020, 17 June 2020 and 1 July 2020 and took a history of the respondent suffering injury to “both hips on multiple occasions during the course of his employment”. He opined that the bilateral hip conditions were as a result of the injuries sustained in the respondent’s employment and the employment was a substantial contributing factor to the injuries.
[22] ARD, p 86.
Dr Rizkallah provided a further report on 22 October 2021 in respect of the respondent’s right hip symptoms at the request of the respondent’s solicitor.[23] He advised that the respondent had suffered bilateral hip injuries in the course of his employment and the respondent had undergone a left hip replacement, which had been extremely beneficial to the respondent. He noted that the respondent suffered from significant pain and disability in his right hip, which was directly related to the work the respondent performed for the appellant. Dr Rizkallah considered that the respondent’s employment was a substantial contributing factor to the condition and the main reason why the respondent required the surgery. He added that the proposed surgery was appropriate, there were no alternate treatments available, the cost was the same as that for the left hip, the surgery was likely to be effective, and was considered appropriate by medical experts.
[23] ARD, pp 83–84.
Crystal Physiotherapy
Clinical records from Crystal Physiotherapy were in evidence, disclosing that a physiotherapy management plan was prepared on 4 December 2011, which referred to “back” and “hip,” and mentioned restricted duties. In a notation at the end of the document, it was noted that the claim number for the lumbar spine and right hip was different to that of the right knee. The plan was stamped as received by the insurance section on 5 December 2011 and approved by Ms Melissa Foster.[24]
[24] ARD, p 785.
On 8 March 2013, Crystal Physiotherapy prepared a further physiotherapy plan, referring to injuries of the back, left hip and spine. The document was stamped “received” by the insurance section on 12 March 2013, and it was noted that the respondent was performing suitable duties. The insurer’s representative, Ms Michelle Camilleri, pointed out that the referral was for treatment of the right hip, not the left hip.[25]
[25] ARD, p 818.
Associate Professor Nigel Hope, orthopaedic surgeon
On 7 September 2018, Associate Professor Nigel Hope assessed the respondent in respect of his claim made in relation to the lumbar spine and the right knee, which symptoms A/Prof Hope attributed to the truck accident on 12 October 2000. There was no mention in that report of right hip symptoms.[26]
[26] ARD, pp 72–80.
In a short supplementary report dated 19 March 2019,[27] A/Prof Hope, in response to questions posed by the respondent’s solicitor, opined that the nature and conditions of the respondent’s employment caused the problems in the respondent’s left shoulder, lumbar spine and the right knee. He also added that the need for the proposed surgery for the right knee was caused by the nature of the respondent’s work.
[27] ARD, p 81.
A/Prof Hope provided an opinion in relation to the respondent’s left hip condition on 30 October 2020.[28] In that report, A/Prof Hope expressed the view that, based on the same history as that recorded in his later report, the respondent’s left hip symptoms were attributable to the respondent’s work duties. The right hip symptoms were not mentioned in the history taken, the assessment or the opinion.
[28] ARD, pp 64–71.
A/Prof Hope further assessed the respondent at the request of the respondent’s solicitors and provided a report dated 1 November 2021.[29] A/Prof Hope took a history of the respondent performing brush-cutting work in early 2001 that caused bilateral hip pain, worse in the right hip and which deteriorated in the context of performing that work over the following 17 years. He diagnosed severe osteoarthritic work-related right hip pain with associated difficulties. A/Prof Hope described the respondent’s work duties as driving, garden maintenance, including brush-cutting, and cleaning. He recorded that the brush-cutter weighed 5 kilograms and each rotational movement caused pivoting of the hips. He said that the respondent performed that work for 30 hours per week. A/Prof Hope referred to brush-cutting work the respondent had performed for two hours in early 2001 when he was clearing weeds and gutters, following which the respondent experienced severe left and right hip pain. He said that the respondent reported the incident to the appellant.
[29] ARD, pp 58–63.
A/Prof Hope recorded that the respondent’s left hip symptoms became severe in 2020 and the respondent underwent a left hip arthroplasty performed by Dr Rizkallah on 27 May 2021. A/Prof Hope noted that the right hip symptoms had escalated, and a right hip arthroplasty was suggested. A/Prof Hope took the history that the respondent had been symptom free with respect to his right hip prior to 2001. He described the respondent’s severe symptoms and functional difficulties. He considered that the proposed surgery was required and that the symptoms commenced in 2001 and were related to the general nature and conditions of the respondent’s work duties, requiring him to perform rotational overuse while using a brush-cutter. He added that the whole of the condition was related to the respondent’s employment, the respondent’s employment was a substantial contributing factor, and the main contributing factor, to the right hip condition.
A/Prof Hope confirmed that the proposed surgery was “reasonable and necessary”, was effective and appropriate treatment for the condition and there was no alternate treatment available.
Dr John Stephen, orthopaedic surgeon
Dr John Stephen was requested by the appellant to examine the respondent and provide an opinion in respect of the respondent’s right hip condition. Dr Stephen had previously provided opinions in respect of the respondent’s numerous other injuries. Of relevance to the appeal, Dr Stephen reported on 21 January 2010[30] that the respondent “still complains of pain in the left trochanteric region.”[31] Dr Stephen examined both of the respondent’s hips, which he found to be clinically normal. He referred to his findings on examination as pertaining to “the neck, left shoulder, low back, right knee and trochanteric regions”.[32]
[30] Reply to Application to Resolve a Dispute (reply), pp 892–896.
[31] Reply, p 894.
[32] Reply, p 896.
In respect of these proceedings, Dr Stephen provided a report dated 9 November 2021.[33] He noted that an x-ray report dated 21 May 2021 described moderate degenerative changes in both hips. Dr Stephen advised that a clinical examination of the respondent produced results that were consistent with mild to moderate degenerative change in the right hip, but he suspected that some of the symptoms were referrable to trochanteric bursitis. He observed that bilateral osteoarthritic changes in an overweight diabetic was a common finding. He added that there may be an impingement. He rejected the notion that the right hip symptoms could be attributed to the truck accident that had occurred some 21 years earlier, given the absence of earlier complaints and clinical findings in past examinations. He observed that, had the joints of the hip been involved in the truck accident, there would have been much earlier deterioration than the current very mild osteophytic changes.
[33] Reply, pp 1,059–1,064.
Dr Stephen considered that the pathology and symptoms were unrelated to the injury and the respondent’s employment was not the main contributing factor to the right hip pathology, or to the aggravation, acceleration, exacerbation or deterioration of that pathology. Dr Stephen opined that the proposed right hip replacement was not yet reasonably necessary medical treatment as his symptoms were not sufficiently severe to warrant replacement.
Dr Stephen provided a supplementary report dated 17 November 2021 in response to further questions posed by the appellant.[34] Dr Stephen rejected the notion that the ‘nature and conditions’ of the respondent’s employment was the main contributing factor to the respondent’s right hip pathology. He explained that such degenerative changes often occur in people who are overweight and diabetic, regardless of their occupation. He added that, for the same reason, he also did not consider that the ‘nature and conditions’ of the respondent’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition.
[34] Reply, pp 1,064–1,065.
The relevant radiological evidence
An x-ray of the respondent’s pelvis and right hip was performed on 11 January 2006, which was reported as a “normal appearance”.[35]
[35] ARD, p 116.
On 29 September 2011, a further x-ray, this time of the pelvis, lumbar spine and both hips was undertaken. The hips were noted to have “loss of the normal head/neck junction of both femora” and “[m]ild osseous spurring … in the right greater trochanter …”.[36]
[36] ARD, p 114.
THE MEMBER’S REASONS
The Member issued a Certificate of Determination on 7 September 2022, which contained a “slip” error and was amended by consent at the request of the respondent. The amended Certificate of Determination was issued on 19 September 2022.
The Member noted that the respondent commenced working for the appellant in 1999 and performed work requiring bending, lifting, driving, garden maintenance and cleaning. The Member considered that the work described by the respondent could be considered physically demanding. She observed that the appellant had not challenged the respondent’s evidence as to the nature of the work performed.
The Member referred to the truck accident that occurred on 12 October 2000 and the injuries sustained by the respondent. She noted that the respondent returned to work about a week after the accident and was required to perform normal duties. The Member particularly noted that the respondent’s statement evidence was that he experienced a dull ache in his hip which was aggravated by his work duties. The Member said that the respondent sought treatment from Dr Azar for bilateral hip problems and was referred to Dr Rizkallah in 2017.
The Member summarised the issues in dispute and reviewed the documentary and medical evidence, including the earlier medical evidence pertaining to the respondent’s previous claims. The Member turned to the first issue in dispute, which required a determination of the cause of the respondent’s right hip condition. She considered that the respondent had provided extensive evidence as to the heavy nature of the work he performed, which included the use of a whipper-snipper. She observed that the respondent’s description of the work he performed was not challenged by any contradictory evidence from the appellant.
The Member referred to the opinions of both Dr Azar and Dr Rizkallah. She was of the view that both doctors supported the respondent’s claim that his underlying condition had been aggravated in accordance with s 4(b)(ii) of the 1987 Act.
The Member referred to the report of Dr Stephen dated 21 January 2010 (which date she incorrectly nominated as 7 December 2010) and observed that:
(a) “It is obvious that there was a complaint in respect of the left trochanteric ‘regions’, which obviously must mean in both hips”;[37]
(b) Dr Stephen noted that a claim had been made in respect of both hips, and
(c) Dr Stephen found on examination that both hips were normal.
[37] Brassington v Blacktown City Council [2022] NSWPIC 497 (reasons), [28].
She said that Dr Stephen did not engage with the duties the respondent performed and did not have the history that the respondent had experienced right hip symptoms over a period of years extending to a referral for an x-ray of his right hip as far back as 2006.
The Member considered that, as Dr Azar and Dr Rizkallah treated the respondent over a number of years, they were in a better position to know about his complaints and his working conditions. She said that the evidence of those doctors was persuasive. She concluded that the weight of the evidence supported the assertion that the respondent’s work was the main contributing factor to the aggravation of the right hip pathology.
The Member observed that the opinions of Dr Azar and Dr Rizkallah were supported by A/Prof Hope, who she said understood the nature of the respondent’s work and the impact of the rotational overuse of a whipper-snipper and brush-cutter over many years. She was satisfied that the respondent suffered an injury as defined by s 4(b)(ii) of the 1987 Act.
The Member noted the appellant’s criticism of the respondent’s evidence that he did not specify as to how long after the injury in 2000 he began to experience right hip pain, or how many hours per day he used the brush-cutter. She further noted the appellant’s submission that the respondent would not have been performing rotational movements when doing edging work. The Member observed that those criticisms were not fatal to the respondent’s case in circumstances where the respondent has described the heavy work he performed, and his treating specialist considered that the nature of the respondent’s duties materially contributed to the need for the surgery.
The Member further referred to the appellant’s criticisms of A/Prof Hope having not mentioned hip symptoms in his earlier reports and having assumed that the respondent performed that brush-cutting work for six hours per day, 30 hours per week, for 17 years. The Member pointed out that the period of time over which the respondent performed the work was the respondent’s direct evidence. The Member queried why, if the appellant wanted to challenge that evidence, the appellant did not adduce its own evidence about the hours worked and the duties performed by the respondent.
The Member proceeded to determine the remaining issues as to whether the proposed surgery was reasonably necessary and whether the respondent was barred from claiming compensation by the operation of ss 254 and 261 of the 1998 Act because he gave late notice of his injury. There is no challenge on appeal in respect of the Member’s determinations pertaining to those issues. It is therefore not necessary to proceed to summarise the Member’s reasons for her conclusions about those issues.
The Certificate of Determination issued on 19 September 2022 records:
“The Commission determines:
1. The [respondent] has suffered an injury to his right hip within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987.
2. The proposed surgery is reasonably necessary and results from the [respondent’s] employment with the [appellant].
3. The [respondent] is not precluded from making a claim pursuant to s 261 of the Workers Compensation Act 1987.”
GROUNDS OF APPEAL
The appellant asserts six grounds of appeal as follows:
(a) Ground A: The Member erred in law in failing to make any proper findings as to the specific work that the respondent was performing over the course of his employment with the appellant in order to support the conclusion that the respondent suffered an injury in accordance with s 4(b)(ii) of the 1987 Act;
(b) Ground B: The Member erred in law by misdirecting herself as to the weight to be given to the respondent’s evidence about his work activities in the absence of specific evidence from the appellant about the nature of the work the respondent was performing in his work with the appellant;
(c) Ground C: The Member erred in law in giving any weight to the evidence in the clinical records of Dr Azar on the issue of causation in the absence of any reference in those records to any injury to the right hip at work or to any work cause for the respondent’s right hip symptoms;
(d) Ground D: The Member erred in law in rejecting the opinion of Dr Stephen;
(e) Ground E: The Member erred in law in failing to provide any, or any proper reasons for preferring and giving weight to the medical opinion of Dr Azar, Dr Rizkallah and A/Prof Hope on the issue of causation, and
(f) Ground F: The Member erred in law in treating the medical evidence of Dr Azar as supportive of the opinion of Dr Rizkallah when in fact it was inconsistent with it as to the issue of causation.
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 …”.
SUBMISSIONS
As to Ground A
The appellant’s submissions
The appellant submits that the Member’s conclusions about the work performed by the respondent are very limited. The appellant refers to the Member’s observations that the respondent gave a detailed description of the heavy work he performed, which evidence was not challenged.
The appellant asserts that the Member’s acceptance that the respondent performed heavy work was not sufficient to provide a proper basis for accepting the opinions of the respondent’s medical experts. The appellant submits that, as it submitted to the Member, the medical opinions were not ad idem in respect of the cause of the respondent’s condition being the heavy work he performed. The appellant points to Dr Azar’s evidence that the cause was compensatory overloading as a result of the right knee injury, which was not the same cause as being due to heavy work. The appellant adds that Dr Azar’s opinion was also at odds with A/Prof Hope’s opinion that the cause was rotational overuse.
The appellant submits that the failure by the Member to make specific findings in relation to the nature of the respondent’s work led her to fail to engage with the opinions of the medical experts, which opinions the Member accepted without identifying the factual assumptions upon which the opinions were founded.
The respondent’s submissions
The respondent asserts that this ground of appeal cannot succeed. He submits that the available evidence was that he worked for the appellant as a maintenance worker from 1999, and his description of the work was that it was physically challenging and included bending, lifting, driving, garden maintenance and cleaning. The respondent points out that, after the truck accident, he returned to normal duties involving use of a whipper-snipper, picking up rubbish, sawing trees and moving branches.
The respondent refers to the Member’s reasons, wherein she said:
“To my mind the [respondent] has provided extensive evidence which has not been challenged by the [appellant] as to the heavy nature of his duties at work. This includes the using of the whipper-snipper, there is no reason for me not to accept the [respondent’s] description of his duties, nor has it been put in dispute by any contradictory evidence from the [appellant].”[38]
[38] Reasons, [38].
The respondent submits that it is clear that the passage discloses that the Member accepted his evidence as to the heavy nature of his work duties. The respondent says that the Member further reasoned:
“We then have the opinions of both the treating surgeon, Dr Rizkallah, and his general practitioner, who both support the [respondent’s] claim in respect of an aggravation of an underlying condition as required by s4(b)(ii) of the 1987 Act. That is, the weight of the evidence is the [respondent’s] work was the main contributing factor to the aggravation.”[39]
And:
“The opinions of Dr Azar and Dr Rizkallah are also supported by Associate Professor Hope. Associate Professor Hope also understands the nature of the [respondent’s] work which included the use of the brush-cutter and whipper-snipper and the impact on the [respondent’s] hips by way of rotational overuse over many years.”[40]
And:
“It seems to me that the [respondent] has described in great detail the heavy nature of the work that he performed for the [appellant] and there has been no challenge to that description. The [appellant] is critical of the [respondent’s] evidence on the basis that he does not specify how long after the accident he began to feel right hip pain nor has he described how many hours he was required to use the brush-cutter on a daily basis. The [appellant] also points out while the [respondent] was performing his edging work he would not have the same rotational force on his hips. These criticisms are not fatal to the [respondent’s] case. He has described the heavy nature of his work, which it is accepted by his treating surgeon materially contributed to the need for surgery.”[41]
[39] Reasons, [39].
[40] Reasons, [42].
[41] Reasons, [52].
The respondent submits that the Member’s process of reasoning was the basis upon which she determined that the respondent’s description of his duties was sufficient for her to conclude that the work was work of a heavy nature and the respondent had suffered an injury within the meaning of s 4(b)(ii) of the 1987 Act. The respondent points out that, in the prior proceedings, a different Member of the Commission also accepted that the nature of the respondent’s duties was “clearly labouring in nature”.
The respondent asserts that the Member’s findings were “proper” and that this ground of appeal is not made out and should be rejected.
As to Ground B
The appellant’s submissions
The appellant points to the Member’s criticism for failing to address the respondent’s evidence as to the nature of his duties. The appellant refers to paragraphs [23] to [27] of its submissions made to the Member in which it asserted that the Commission could infer that some of the respondent’s duties would have involved less strenuous work and gave examples of what that work might be. The appellant also asserted that:
(a) such an inference was readily available “from common experience and observations of workers performing work for councils,”[42]
(b) the respondent’s evidence does not support the history provided to A/Prof Hope that he performed constant rotational movements for 6 hours per day, and
(c) the edging work would not have involved rotation but would require walking backwards and forwards, and other work could have “involved static or semi-static postures.”[43]
[42] Appellant’s submissions to the Member, [24].
[43] Appellant’s submissions to the Member, [26].
The appellant submits that those matters should have been taken into account when the Member evaluated the medical evidence, rather than the Member simply concluding that the respondent was engaged in heavy work. The appellant contends that the Member misdirected herself by focussing on the absence of evidence from the appellant about the work the respondent performed. The appellant asserts that the Member was required to make findings about the specific work undertaken and the period over which that work was undertaken before determining whether the evidence supported those factual assumptions relied on by the medical experts. The appellant submits that the Member erred in law by failing to engage with that task.
The respondent’s submissions
The respondent reiterates that there was no evidence before the Member that contradicted the respondent’s evidence. The respondent submits that the onus rests upon him to establish, on the balance of probabilities, that the work he did caused him injury. The respondent says that he provided detailed and consistent evidence in all of the claims made by him and adduced medical evidence about the causal connection between that work and the aggravation of his right hip injury.
The respondent provides a detailed summary of the evidence of the work the respondent performed, noting his evidence that his hip was most painful when bending, lifting and doing repetitive tasks. The respondent reiterates that the Member in the prior proceedings was satisfied that the work performed by the respondent was labouring in nature. The respondent again submits that there was no challenge to any part of the respondent’s extensive evidence about his duties. The respondent points to the Member’s analysis of the history by A/Prof Hope of the work performed and her reference to the appellant’s criticism of A/Prof Hope’s understanding of that evidence, following which the Member reasoned that the appellant did not adduce any contrary evidence at all of the respondent’s work duties. The respondent cites paragraph [56] of the Member’s reasons, where the Member observed:
“This is the history given by the [respondent] and I cannot understand why the [appellant], if they truly wanted to take issue with such an assumption, have not put that in issue. They also take issue with the brush-cutter weighing 5kg however have no evidence to say that is not a true assumption in the [respondent’s] evidence.”
The respondent submits that the Member clearly weighed up all of the evidence and took into account the absence of any evidence from the appellant, before concluding that she was satisfied on the balance of probabilities that the work performed was as described by the respondent. The respondent contends that the ground of appeal is not made out and should be rejected.
As to Ground C
The appellant’s submissions
The appellant says that the Member relied upon the clinical notes of Dr Azar when determining that the respondent’s right hip condition was attributable to the work performed. The appellant contends that, although she relied upon the records, the Member failed to make findings about the entries in those notes in relation to causation which leaves the appellate body in a position where it is difficult or even impossible to determine the weight the Member afforded those entries. The appellant asserts that the failure to make those findings by the Member amounts to error.
The appellant asserts that the Member “uncritically” accepted the respondent’s submission that the entries in Dr Azar’s notes recording right hip pain and bilateral hip pain were supportive of a finding that the employment caused the symptoms. The appellant says that in rejecting the opinion of Dr Stephen, the Member failed to reconcile the fact that none of those entries referred to the right hip symptoms being caused by the employment, which was significant in the context of Dr Stephen’s contrary opinion on causation. The appellant also says that the Member’s failure to reconcile that fact was significant in terms of the weight to be afforded to the opinion of the respondent’s medical experts.
The appellant contends that the Member did not specifically identify the weight she afforded to Dr Azar’s records although it was clear that she did rely upon them. The appellant points to the Member’s observation that Dr Azar and Dr Rizkallah were the respondent’s treatment providers over a number of years and were best placed to be able to understand the respondent’s symptoms and the nature of the work he performed. The appellant submits that the manner in which the Member dealt with and applied the clinical records was not open to her and constituted an error of law.
The respondent’s submissions
The respondent refers to the entries in Dr Azar’s clinical records disclosing that:
(a) on 4 October 2018, the respondent complained of right hip pain which had developed at the time of the truck accident and was subsequently aggravated by twisting, bending and lifting at work, and Dr Azar expressed the view that the hip condition was solely work related;
(b) there were extensive handwritten records of right hip pain over the years;
(c) there were references to physiotherapy treatment for the right hip in 2011;
(d) the certificates of capacity produced by Dr Azar confirmed that the bilateral hip symptoms were work-related;
(e) in 2017, Dr Azar said that he had been treating the respondent for work-related injuries (including the hips) for years, and recorded that the respondent had been performing more strenuous work, which aggravated his injuries, and
(f) Dr Azar reported on 22 October 2021 that the respondent suffered from bilateral work-related hip injuries with ongoing pain that had resulted from altered dynamics by compensating for his right knee and his inability to weight bear.
The respondent submits that there was ample evidence upon which the Member could reach her conclusion that the weight of the evidence established that the respondent’s employment was the main contributing factor to the aggravation.
As to Ground D
The appellant’s submissions
The appellant refers to Dr Stephen’s reference to pain in the left trochanteric regions, which the Member considered to be a reference to both hips. The appellant says the Member appeared to rely upon that inference in concluding that the respondent suffered an injury to his right hip. The appellant submits that the Member did not give reasons to support that conclusion and it was quite possible that, by using the plural “regions”, Dr Stephen was referring to the “arena around the left trochanter” or the use of the plural was simply an error by the doctor. The appellant submits that the manner in which the Member dealt with that evidence constitutes an error of law.
The respondent’s submissions
The respondent submits that the appellant’s submissions are based purely upon speculation and should be rejected. The respondent says that the inference drawn by the Member was logical and open to her on the basis of the evidence before her. The respondent asserts that if the reference to “regions” was a typographical error, the appellant ought to have arranged for Dr Stephen to correct it.
The respondent refers to the reports dated 9 November 2021 and 17 November 2021, which were obtained for the purpose of these proceedings. The respondent summarises the contents of both reports. The respondent says that he submitted to the Member that Dr Stephen did not explain why or how the nature of the truck accident precluded a finding that the degenerative changes in the right hip were causally related to that accident or that those changes were aggravated, exacerbated or accelerated by that accident. The respondent adds that he submitted to the Member that Dr Stephen did not take into account his evidence of a dull, aching pain shortly after the accident and that Dr Stephen’s opinion was predicated on there being an absence of right hip complaints over the years, which was incorrect.
The respondent cites the Member’s reasons at [29] to [30], where she analysed both of Dr Stephen’s reports, and refers to the Member’s reasons for her conclusion as to why she preferred the opinions of Dr Azar and Dr Rizkallah. The respondent submits that the Member dealt with Dr Stephen’s opinion about the respondent’s weight and diabetic condition and the criticisms of the respondent’s medical evidence made by the appellant. The respondent says that the Member provided cogent reasons as to why she did not prefer the opinion of Dr Stephen.
The respondent submits that the Member’s conclusion was open to her and asserts that this ground of appeal should be rejected.
As to Ground E
The appellant’s submissions
The appellant asserts that the Member failed to give any, or only gave limited, reasons as to why she accepted the opinions of Dr Rizkallah, Dr Azar and A/Prof Hope, referring to paragraphs [38] to [42] of the Member’s reasons. The appellant describes the Member’s reasons as a “bare statement.”[44] The appellant further refers to, and quotes from, paragraphs [14] to [17] of the Member’s reasons and submits that the Member did not deal with the lack of support for Dr Rizkallah’s diagnosis of post-traumatic arthritis of the right hip and his opinion that the respondent’s incapacity and need for surgery was a direct result of the work injuries. The appellant asserts that the Member unconditionally accepted Dr Rizkallah’s opinion when there was a lack of any report of work injuries to Dr Azar recorded in the contemporary clinical notes.
[44] Appellant’s appeal submissions, [40].
The appellant further asserts that the Member failed to engage with its submissions at [31] to [37] that:
(a) the history recorded by Dr Rizkallah of the onset of symptoms was inconsistent with the history provided by Dr Azar;
(b) Dr Rizkallah did not describe the mechanism of what he described as multiple injuries to the right hip, or explain the nature of the injuries;
(c) Dr Rizkallah failed to provide reasons as to why the respondent’s employment was a substantial contributing factor to the right hip condition;
(d) Dr Rizkallah’s opinion did not comply with the requirements for providing expert evidence, and
(e) there was an absence of complaint to Dr Rizkallah in 2006 of any right hip symptoms or injury.
The appellant submits that the Member’s failure to engage with its submissions and the Member’s acceptance of the evidence of Dr Rizkallah despite those submissions amounts to an error of law. The appellant adds that the Member also erred by placing weight on the opinion of Dr Azar when that opinion was inconsistent with the opinions of the other doctors relied upon by the respondent. The appellant submits that the Member failed to deal with the inconsistency and appeared to consider that Dr Azar’s opinion was consistent with that other evidence.
The appellant asserts that the Member failed to provide sufficient reasons for accepting the opinion of A/Prof Hope. The appellant refers to the Member’s summary of the history recorded by A/Prof Hope and his opinion. The appellant submits that the Member failed to take into account the absence of any record of right hip pain over the years following the truck accident and an absence of record of multiple injuries while performing the brush-cutting work. The appellant asserts that the Member’s failure to provide sufficient reasons for accepting A/Prof Hope’s opinion and failure to reconcile his opinion with the contemporaneous records amounts to an error of law.
The respondent’s submissions
The respondent submits that the Member’s decision must be read as a whole, and the Member’s process of reasoning was set out in detail. The respondent describes the Member’s reasons for preferring the opinions of Dr Rizkallah, Dr Azar and A/Prof Hope as “cogent.” The respondent asserts that the Member dealt with the appellant’s submissions and gave reasons as to why those criticisms did not undermine the opinions of the doctors relied upon by the respondent. The respondent points to the Member’s observation at [57] of her reasons that the respondent did not have to have “a perfect case”. The respondent submits that the respondent was required to discharge its onus that on the balance of probabilities the work injury and the need for surgery resulted from the injury and the Member was satisfied to that level.
The respondent submits that this ground of appeal is not made out and should be rejected.
As to Ground F
The appellant’s submissions
The appellant points to the Member’s observation at [39] of her reasons that both Dr Rizkallah and Dr Azar supported the respondent’s allegation of an underlying condition, in accordance with s 4(b)(ii) of the 1987 Act. The appellant says that it submitted that Dr Azar’s opinion was that the right hip condition developed from altered dynamics and compensatory overload because of his inability to weight bear on his right knee. The appellant asserts that it is clear that Dr Azar’s opinion was that the right hip condition was a consequence of the loading effect on the hip because of the right knee injury. The appellant submits that the opinion was not consistent with an injury by way of aggravation of the right hip condition pursuant to s 4(b)(ii) of the 1987 Act, to which the respondent’s employment was the main contributing factor.
The appellant concludes that the Member’s findings in relation to Dr Azar’s evidence, and that of Dr Rizkallah were wrong, not open on the evidence before her and constitute error of law.
The respondent’s submissions
The respondent submits that Dr Azar, who was the respondent’s treating doctor for many years, reported on 22 October 2021 that the respondent had received bilateral work-related “wear” injuries to his hips as a consequence of the loading effects because of his inability to weight bear on his right knee. The respondent provided a summary of Dr Azar’s evidence, together with that of Dr Rizkallah, noting that Dr Rizkallah was of the view that the right hip pain directly resulted from the respondent’s employment and the employment was a substantial contributing factor.
The respondent asserts that this ground of appeal is a mere attempt to cavil with the Member’s findings because the appellant prefers a different outcome. The respondent summarises the history and opinion recorded in Dr Rizkallah’s report dated 22 October 2021. He submits that the Member analysed the whole of the evidence and after considering the weight to be afforded to the evidence, determined that the respondent had suffered an injury to the right hip and the surgery was reasonably necessary as a result of that injury. The respondent says that the injury was characterised as an aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of s 4(b)(ii) of the 1987 Act. The respondent submits that the Member explained the reasons for her conclusion and reiterates that the Member’s findings were open to her. The respondent submits that the appellant has failed to establish error on the part of the Member and the ground of appeal should be rejected.
THE RELIEF SOUGHT
The appellant seeks to have the Certificate of Determination revoked and an award entered in its favour in respect of the allegation of injury to the right hip. In the alternative, the appellant seeks to have the Certificate of Determination set aside and the matter remitted to a different Member for re-determination. The respondent submits that the appeal should be dismissed, and the Member’s Certificate of Determination should be confirmed.
CONSIDERATION
Ground A: The Member erred in law in failing to make any proper findings as to the specific work that the respondent was performing over the course of his employment with the appellant in order to support the conclusion that the respondent suffered an injury in accordance with s 4(b)(ii) of the 1987 Act
This ground of appeal asserts that the Member failed to make a finding as to what specific work the respondent was doing that caused him injury. The first submission under this ground is that the Member accepted that the respondent performed heavy work, which, the appellant says, was not a sufficient basis for accepting the medical opinions relied upon by the respondent because the medical experts’ opinions differed in respect of the cause of the respondent’s condition.
The respondent gave extensive evidence about the nature of the work he performed which was not challenged in any way, other than by assertions made by the appellant that were not founded upon any evidence in the proceedings. It was clearly open to the Member to accept that the nature of the work performed by the respondent could be described as “heavy”.
The Member considered the evidence of both Dr Azar and Dr Rizkallah. She observed that both medical experts supported the respondent’s claim that his injury fell within the meaning of injury provided for in s 4(b)(ii) of the 1987 Act and was work-related. That observation was undoubtedly correct. The Member determined that she placed greater weight on the opinions of Dr Azar and Dr Rizkallah because they had been the respondent’s treating doctors for a number of years and were better placed to understand the nature of the respondent’s employment and the respondent’s medical conditions.
The Member referred to some of the multiple entries in evidence where the respondent sought treatment in respect of either his right hip or both hips over the period from 10 January 2006 to 3 November 2016, which was within the period when the respondent performed the work described for the appellant. That evidence confirms that the respondent did indeed seek treatment for his right hip condition from both doctors over a number of years.
The Member’s conclusion that she should afford more weight to the treating doctors’ evidence was reasonable.
The appellant asserts that the medical opinions were not “uniform” in respect of the cause of the respondent’s right hip condition.
While Dr Azar expressed the view in his report dated 21 October 2021 that the right hip symptoms were referrable to altered load bearing because of the right knee injury, other aspects of Dr Azar’s evidence supported the notion that the nature of the respondent’s work was causative. In his report of 4 October 2018, Dr Azar indicated that the right hip was injured in the truck accident in 2000, but was subsequently exacerbated by bending, trunk twisting and repetitive lifting. Those activities were well within the respondent’s description of the duties he said he was required to fulfil. Additionally, in the referral letter dated 3 February 2017, Dr Azar detailed the respondent’s various conditions, including bilateral hip pain, the onset of which was in the context of performing more strenuous duties at work. Dr Azar’s evidence must be considered as a whole, and as observed by the Member,[45] the concept that an injury may have multiple causes is well established.[46]
[45] Reasons, [48].
[46] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Dr Rizkallah was of the opinion that the respondent’s pain and disability in his right hip was directly related to the work the respondent performed for the appellant, which work the Member accepted was heavy in nature. Dr Rizkallah made reference to “multiple right hip injuries at work”. Such a description is not inconsistent with the notion of the respondent having suffered an aggravation of an underlying right hip condition as a consequence of micro traumata, otherwise described as the “nature and conditions” of the respondent’s employment. That is, his heavy or strenuous work activities caused injury.
A/Prof Hope took a history of the respondent performing brush-cutting work in early 2001 that caused bilateral hip pain, worse in the right hip, and which deteriorated in the context of performing that work over the following 17 years. A/Prof Hope described the respondent’s work duties as driving, garden maintenance, including brush-cutting, and cleaning. He recorded that the brush-cutter weighed 5 kilograms and each rotational movement caused pivoting of the hips. He considered that the symptoms commenced in 2001 and were related to the general nature and conditions of the respondent’s work duties, requiring him to perform rotational overuse while using a brush-cutter.
While the various opinions were not identical as to the cause of injury, the common thread was that the work the respondent performed over many years of his employment caused injury to his right hip. As the Member observed, an injury can have multiple causes and the respondent was not expected to present a perfect case. That was a sufficient foundation for the Member’s conclusion that the respondent was injured as a result of the heavy work he performed for the appellant. The Member was not required to find with specificity the particular duties that were causative, particularly when there was extensive unchallenged evidence of the respondent’s work activities and the respondent’s doctors considered that those duties caused injury.
In any event, regardless of any disparity in the opinion evidence, it was sufficient in itself that the Member was satisfied that Dr Rizkallah, the respondent’s treating surgeon, was of the view that the nature of the work the respondent performed was causative of injury.
It follows that this ground of appeal fails.
Ground B: The Member erred in law by misdirecting herself as to the weight to be given to the respondent’s evidence about his work activities in the absence of specific evidence from the appellant about the nature of the work the respondent was performing in his work with the appellant
The appellant submits that the Member could have inferred that some of the respondent’s duties would have involved less strenuous work. Firstly, the appellant says that such an inference could be drawn from the Member’s own knowledge of how council workers work. Such a notion cannot be accepted. Any such observation would be irrelevant. Observations of other workers’ work practices was not a matter for the Member to consider. The Member was required to determine on the basis of the evidence before her the nature of the work performed by this respondent in accordance with his obligations to the appellant. Further, there is no indication as to what “common knowledge” the Member had acquired over time in respect of how council workers conduct themselves.
Secondly, the appellant submits that the history recorded by A/Prof Hope was not supported by the respondent’s evidence. At [52] of her reasons, the Member dealt with this submission, and the appellant’s third point that the respondent’s edging work, together with his duties other than whipper-snippering and brush-cutting, did not involve rotational movements. She observed:
“It seems to me that the [respondent] has described in great detail the heavy nature of the work that he performed for the [appellant] and there has been no challenge to that description. The [appellant] is critical of the [respondent’s] evidence on the basis that he does not specify how long after the accident he began to feel right hip pain, nor has he described how many hours he was required to use the brush-cutter on a daily basis. The [appellant] also points out while the [respondent] was performing his edging work he would not have the same rotational force on his hips. These criticisms are not fatal to the [respondent’s] case. He has described the heavy nature of his work, which it is accepted by his treating surgeon materially contributed to the need for surgery.”
In other words, the Member considered that, even if the opinion of A/Prof Hope was not taken into account, Dr Rizkallah’s evidence of itself was sufficient to discharge the respondent’s burden of proving his case.
The respondent, who was the only lay person to provide evidence as to the work he performed, did not provide any evidence that contradicted the history recorded by A/Prof Hope. The appellant’s submission that the history recorded by A/Prof Hope could not be correct is without foundation. In the context of the respondent’s own uncontested evidence, and the flaws identified by the Member in respect of the evidence of Dr Stephen (discussed below), that conclusion was available to the Member.
The appellant asserts that the Member was required to make findings about the specific work undertaken and the period over which that work was undertaken before determining whether the evidence supported those factual assumptions relied on by the medical experts. This assertion has been partly dealt with in respect of Ground A of the appeal. It is paramount, however, that the respondent provided evidence of the work he did, which included working with a brush-cutter. The opinions arrived at by Dr Azar and Dr Rizkallah were given on the basis of the histories recorded and were not dependent upon the respondent performing any particular task for any defined period of time. The evidence of A/Prof Hope was that the mechanism of injury was rotational use of both hips while using a brush-cutter from 2001 for a period of 17 years and for an average of six hours per day. While the appellant submits that such a circumstance is improbable, it adduced no evidence to counter the history given.
The Member was not required to find with any specificity as to what particular tasks were causative before she could accept the opinions of the medical experts relied upon by the respondent in his case. It follows that this ground of appeal fails.
Ground C: The Member erred in law in giving any weight to the evidence in the clinical records of Dr Azar on the issue of causation in the absence of any reference in those records to any injury to the right hip at work or to any work cause for the respondent’s right hip symptoms
The appellant asserts that the Member erred by relying on the clinical notes of Dr Azar as evidence of injury when those entries did not refer to any work-related injury to the right hip. The appellant further asserts that the Member failed to reconcile the absence of any record in the notes to the causation of the right hip symptoms with the opinion of Dr Stephen as to causation. The appellant says that the Member “did not specifically identify the weight she afforded to Dr Azar’s records”.[47]
[47] Appellant’s appeal submissions, [35].
The Member was not in error by taking the clinical records of Dr Azar into account. It was very relevant that the respondent attended Dr Azar, complaining of symptoms in his right hip over the years during which the respondent was performing heavy work for the appellant. In assessing all of the evidence as to causation, the Member afforded weight to that evidence as a step in the process of resolving whether the respondent had proved the occurrence of injury. The records summarised by me at [24] to [28] above, together with the documents from Crystal Physiotherapy discussed at [35] to [36] above, were also considered by the Member in the evaluation of that evidence. Those documents disclose that the right hip complaints were, in Dr Azar’s view, work-related. The Member did not rely solely on the clinical entries as proof that the right hip condition was work-related and she was not required to “specifically identify the weight she afforded” to those notes. The clinical entries formed part of the matrix of historical evidence that the Member took into account when arriving at her conclusion that the right hip condition was caused by the nature of the work performed by the respondent. It is a well-established notion that the Member’s reasons must be read as a whole.[48]
[48] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale), 443.
It was not incumbent upon the Member to reconcile that objective evidence with the opinion of Dr Stephen. The Member gave reasons for preferring the opinions of Dr Azar, Dr Rizkallah and A/Prof Hope to that of Dr Stephen. It was open to the Member to reject the opinion of Dr Stephen on the basis that she did. That is, that Dr Stephen relied upon the understanding that there was an absence of right hip complaints over the years, the respondent’s treating surgeon did not attribute the symptoms to the respondent being overweight and diabetic, which was a factor identified by Dr Stephen, and Dr Stephen did not appear to take into account the respondent’s work duties.
The appellant’s assertion that there was an absence of any record of the respondent having suffered work-related right hip injuries is unfounded. The evidence summarised by me at [24] to [28] and [35] to [36] above (discussed by me at [117]) is supportive of the fact that the respondent complained on a number of occasions of right hip pain over the years, which Dr Azar contemporaneously considered related to the work the respondent was performing for the appellant. Indeed, the evidence from Crystal Physiotherapy and the Workcover certificates of capacity indicate that those complaints were work-related and at times the subject of claims for compensation. Further, in his report dated 4 October 2018, Dr Azar referred to work-related injuries other than the right knee injury, which he said included “bilateral chondral wear injuries to his hips”.[49]
[49] ARD, p 96.
The appellant’s assertion of error on the part of the Member by affording weight to the evidence of Dr Azar is not made out and this ground of appeal fails.
Ground D: The Member erred in law in rejecting the opinion of Dr Stephen
The sole criticism of the Member’s rejection of the opinion of Dr Stephen was that the Member considered that Dr Stephen’s plural reference to “trochanter regions” in his report dated 21 January 2010 must have been a reference to pain in both hips. The appellant submits that the Member took that observation into account when reaching her conclusion that the respondent suffered a right hip injury. The Member made that observation when she was summarising the evidence of Dr Stephen.
As discussed at [118] above, the Member rejected the opinion of Dr Stephen on the basis that Dr Stephen:
(a) relied upon the understanding that there was an absence of right hip complaints over the years, which was incorrect;
(b) took into account that the respondent was overweight and diabetic, however the respondent’s long term treating surgeon did not attribute the symptoms to those conditions, and
(c) did not appear to take into the respondent’s work duties.
The Member did not include the observation about the reference to “trochanteric regions” in her ultimate determination to reject the opinion of Dr Stephen.
The appellant puts forward no other basis as to how the Member erred in rejecting the opinion of Dr Stephen and this ground of appeal fails.
Ground E: The Member erred in law in failing to provide any, or any proper reasons for preferring and giving weight to the medical opinion of Dr Azar, Dr Rizkallah and Associate Professor Hope on the issue of causation
The appellant asserts that the Member failed to give reasons for accepting the opinion of Dr Rizkallah, Dr Azar and A/Prof Hope, or otherwise, her reasons were deficient. The appellant refers to the Member’s reasons at [38] to [42].
In those reasons, the Member:
(a) took into account the evidence, which she appropriately described as extensive and uncontradicted by any evidence from the appellant, that the respondent’s work was heavy and included use of a whipper-snipper;
(b) observed that, in those circumstances, there was no reason why she could not accept the respondent’s description of his duties;
(c) noted that the opinions of both the respondent’s treating specialist and general practitioner both supported the respondent’s case that there was a work-related aggravation of an underlying condition in accordance with s 4(b)(ii) of the 1987 Act, and that the employment was the main contributing factor to the aggravation;
(d) was of the opinion that Dr Stephen did not properly consider the nature of the work performed by the respondent and was unaware that there had been incidences of right hip pain over the course of the respondent’s employment, commencing from an x-ray investigation in 2006;
(e) considered that Dr Azar and Dr Rizkallah were in the best position to form an opinion because of their better understanding of the respondent’s complaints and the nature of the respondent’s duties;
(f) observed that the opinions of both of those doctors was supported by A/Prof Hope, who was also cognisant of the nature of the respondent’s duties involving whipper-snippering and brush-cutting, and
(g) found the opinions of Dr Azar and Dr Rizkallah, which were founded upon long-term involvement in the respondent’s treatment, were persuasive and ought to be accepted.
The appellant describes the above reasons as a “bare statement.”[50] The above reasons can hardly be so described. The Member provided a proper analysis of the uncontradicted evidence of the respondent as to his work duties and of the opinions of the various medical experts. She gave succinct but sufficiently cogent reasons for rejecting the opinion of Dr Stephen and accepting the opinions of the medical experts relied upon by the respondent. It is not necessary for a member to give lengthy reasons.[51] Further, when considering the adequacy of the reasons, the decision must be read as a whole, and not with an eye attuned to find error.[52]
[50] Appellant’s appeal submissions, [40].
[51] Section 294 of the 1998 Act; r 78 of the 2021 Personal Injury Commission Rules 2021.
[52] Beale, 443.
The appellant further refers to the Member’s reasons at [14] to [17], which it describes as “some reference to the opinion of Dr Rizkallah.”[53] The appellant submits that the Member did not deal with the lack of support for the opinion of Dr Rizkallah that the respondent suffered from post-traumatic arthritis as a consequence of multiple work injuries.
[53] Appellant’s appeal submissions, [41].
Those paragraphs of the Member’s reasons were in fact a summary of Dr Rizkallah’s evidence. The Member pointed out that:
(a) Dr Rizkallah was the respondent’s treating surgeon and the respondent had consulted him in respect of the right hip symptoms on three occasions in 2020;
(b) in his report dated 22 October 2020, Dr Rizkallah recorded that the respondent had injured both hips on multiple occasions in the course of his employment, which caused the respondent’s incapacity and need for treatment, and
(c) in his further report dated 22 October 2022, Dr Rizkallah advised that he had examined the respondent on two further occasions and on the basis of clinical evidence of pain and stiffness on testing range of motion, diagnosed post-traumatic arthritis of the hip.
The appellant submits that the Member failed to deal with an absence of factual evidence to support the notion that the respondent had injured his hips on multiple occasions.
At [117] and [119] above, I identified the evidence summarised by me at [24] to [28] and [35] to [36] and the evidence of Dr Azar that confirms that the respondent complained on a number of occasions of right hip pain over the years, that the complaints were work-related and on occasion the subject of claims made to the appellant.
It is also my view that a reference to multiple right hip injuries at work is not inconsistent to the notion of the respondent having suffered an aggravation of an underlying right hip condition as a consequence of the “nature and conditions” of the respondent’s employment. That is, his heavy or strenuous work activities caused injury.
It cannot be said that the factual basis upon which Dr Rizkallah expressed his opinion was wrong, and in those circumstances the Member was not required to reconcile that factual basis with any other evidence in these proceedings.
The appellant asserts that the Member failed to respond to the appellant’s assertion that the opinion of Dr Rizkallah was a “bare ipse dixit.”[54] For the reasons expressed earlier under this ground of appeal, the assertion that Dr Rizkallah’s opinion fell short of being probative must be rejected.
[54] Appellant’s submissions to the Member, [35]–[37].
The appellant further asserts that the Member failed to reconcile the evidence of Dr Rizkallah with that of Dr Azar and A/Prof Hope. I have discussed the opinions of those three experts at [104] to [107] above and concluded that although the opinions were not precisely the same, they were sufficiently aligned so that it was open to the Member to conclude that they were supportive of the respondent’s case.
This ground of appeal fails.
Ground F: The Member erred in law in treating the medical evidence of Dr Azar as supportive of the opinion of Dr Rizkallah when in fact it was inconsistent with it as to the issue of causation
The appellant refers to [39] of the Member’s reasons, in which she observed that the evidence of both Dr Rizkallah and Dr Azar supported the respondent’s allegation that he suffered an injury in the form of an underlying condition, in accordance with s 4(b)(ii) of the 1987 Act. The appellant submits that the Member erred in making that observation because there was a disparity between those doctors in respect of their opinions as to causation. The appellant explains that Dr Azar’s view was that the respondent’s hip condition was a consequence of altered loading because of the right knee injury and not an injury within the meaning of s 4(b)(ii).
The Member did not find that the respondent’s right hip condition was consequential to the right knee injury because of overload. In respect of the evidence of Dr Azar, the Member not only considered the opinion on causation contained in Dr Azar’s report dated 22 October 2021, but also his clinical records, which she noted recorded histories related to bilateral hip injuries. She noted that the respondent had undergone a right hip x-ray in 2006 and had consulted Dr Azar on a number of occasions in relation to right hip complaints.
The Member’s ultimate determination was that the respondent had suffered an injury to his right hip in accordance with s 4(b)(ii) of the 1987 Act. In addition to the observations already noted under this ground, the Member reasoned:
“What is determinative, to my mind, is that the [respondent] has provided certificates of capacity notifying the [appellant] of an injury to his hips as far back as 2014. I therefore find it difficult to understand that the [appellant] has not been given notice of the right hip injury, which clearly on the status of the medical certificates has caused an incapacity for work, forming the basis of the claim.
I also bear in mind that the [respondent] was able to continue to work with the [appellant] [until] 2016 and the certificates were provided in 2014. This is entirely relevant as I have found that the [respondent] has suffered an injury by way of an aggravation of an underlying condition.”[55]
[55] Reasons, [62]–[63].
Dr Azar did opine that the respondent’s employment was a substantial contributing factor to the acceleration and deterioration of his right hip disease.[56] That diagnosis was consistent with the diagnosis provided by Dr Rizkallah. It was open to the Member to consider that the diagnosis provided by Dr Azar was consistent with that of Dr Rizkallah and that the diagnosis fell within the meaning of s 4(b)(ii) of the 1987 Act.
[56] Report dated 22 October 2021, ARD, p 97, [8].
This ground of appeal fails.
CONCLUSION
The appellant has failed to establish error on the part of the Member and the appeal fails. The Member’s Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 19 September 2022 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
6 September 2023
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