Broadspectrum Australia Pty Ltd v Skiadas
[2019] NSWWCCPD 31
•5 July 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Broadspectrum Australia Pty Ltd v Skiadas [2019] NSWWCCPD 31 | |
| APPELLANT: | Broadspectrum Australia Pty Ltd | |
| RESPONDENT: | Jenny Demetra Skiadas | |
| INSURER: | Broadspectrum Australia Pty Ltd | |
| FILE NUMBER: | A2-5162/18 | |
| ARBITRATOR: | Ms R Homan | |
| DATE OF ARBITRATOR’S DECISION: | 7 December 2018 | |
| DATE OF APPEAL DECISION: | 5 July 2019 | |
| SUBJECT MATTER OF DECISION: | Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011; ‘exceptional circumstances’; ‘demonstrable and substantial injustice’; Section 60 of the Workers Compensation Act 1987; whether proposed medical treatment is reasonably necessary | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Holman Webb Lawyers |
| Respondent: | Masselos & Co Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
This appeal concerns a claim for compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), namely the payment of medical expenses in respect of a proposed posterior cervical fusion at C4/5 and C5/6 and nerve release surgery proposed by Ms Skiadas’ treating neurosurgeon, Dr Al Khawaja. It specifically concerns whether the Arbitrator erred in finding the surgery to be reasonably necessary treatment for relieving Ms Skiadas’ symptoms.
BACKGROUND
Ms Jenny Demetra Skiadas (the respondent worker, hereafter Ms Skiadas) was employed as a cleaner by Broadspectrum Australia Pty Ltd (formerly known as Transfield Services (Australia) Pty Ltd) (the appellant/ employer). She was required to vacuum, dust, polish and use a buffing machine, and undertake other cleaning duties.
It is not disputed in the present proceedings that Ms Skiadas sustained an injury to her back on or around 15 November 2011 after using a buffing machine and an injury to her neck on 9 July 2014 after using a vacuum cleaner in the course of her employment with the employer. It is also not disputed that Ms Skiadas sustained injury to her back and neck as a result of the nature and conditions of her employment. These matters were the subject of a determination in previous proceedings in the Commission.[1] The employer in those proceedings is the same as in these proceedings save and except for a change in name.
[1] Skiadas v Transfield Services (Australia) Pty Ltd (6006/15, 16 March 2016).
In those earlier proceedings, the employer was ordered to pay the costs of and incidental to an anterior cervical discectomy and fusion surgery at C4/5 and C5/6 levels. That surgery was performed by Dr Darweesh Al Khawaja on 15 April 2016.
In the 18 months following her 15 April 2016 surgery, Ms Skiadas was monitored regularly by her treating neurosurgeon Dr Al Khawaja and received physiotherapy and hydrotherapy and was put on a gym program in an attempt to manage her ongoing symptoms. Ms Skiadas’ symptoms, in particular her neck, arm and shoulder pain on her right side, by and large did not subside with the assistance of these treatments.
On 8 December 2017 Dr Al Khawaja prepared a letter recommending supplementing the anterior fusion with posterior fusion at C4/5 and C5/6 levels. In that letter he identified that Ms Skiadas continued to have neck, arm and shoulder pain and recommended the treatment on the basis that it may relieve Ms Skiadas’ symptoms, but also noting significant risks associated with that surgery. Ms Skiadas indicated that notwithstanding the risks involved, she would like to try the surgery because she was experiencing unbearable pain and lack of mobility.
On 15 March 2018 and 17 September 2018, dispute notices in relation to the proposed surgery were issued pursuant to ss 74 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Approval for the surgery was declined on the basis that the surgical treatment proposed was not reasonably necessary pursuant to ss 59 and 60 of the 1987 Act.
On 4 October 2018, Ms Skiadas filed an Application to Resolve a Dispute (ARD) seeking compensation pursuant to s 60 of the 1987 Act for the costs of and incidental to a posterior cervical fusion at C4/5 and C5/6 and nerve release, proposed by Dr Al Khawaja on 8 December 2017.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
It is conceded that the monetary thresholds in s 352(3) have been met.
EXTENSION OF TIME
The Certificate of Determination was dated 7 December 2018. Section 352(4) of the 1998 Act provides that an appeal pursuant to s 352 “can only be made within 28 days after the making of the decision appealed against”. The employer filed an Application – Appeal Against the Decision of an Arbitrator (appeal application) on 4 January, being in time, however this appeal application was rejected by the Registrar’s delegate by way of letter to the appellant on 10 January 2019. The letter noted the following non-compliance issues:
“The Appeal Application does not contain any submissions in support of the identified appeal ground/s. Under the heading ‘Submissions in support’ the Appeal Application records “To be provided”. It also records that the appellant has been disadvantaged due to the relevant persons being on leave and has not had the usual time to prepare” the appeal and that the appellant seeks additional time to finalise its grounds and submissions in support.
The Appeal Application does not comply with the procedural requirements of s 352 of the 1998 Act in that it has not provided any submissions that clearly and succinctly address the ground/s of appeal, as required by Practice Direction No 6. It is not acceptable to merely state that the relevant persons to prepare the appeal submissions are on leave and then make an application for additional time to file submissions on appeal.
In addition, the Appeal Application does not have attached an objective chronology that refers to the relevant page references to the relevant evidence, as required by Practice Direction No 6.”
On 15 January 2019, the employer filed an appeal application alleging two grounds of appeal. The appeal application was registered on 15 January 2019, being the date the appeal was made.[2] The appeal was therefore made out of time.
[2] Rule 16.2(11) of the Workers Compensation Commission Rules 2011 (the Rules).
On 18 January 2019, the Registrar directed the employer to file an amended appeal application that “contains submissions, using appropriate subheadings, that separately address each ground of appeal and contains a list of authorities”, in compliance with Practice Direction No 6. A transcript of the hearing was also sent to the appellant that day. The appellant filed an amended appeal application on 1 February 2019, addressing the Registrar’s Direction of 18 January 2019 and also adding a third ground of appeal. I note the filing of the amended application did not affect the date of registration, being 15 January 2019 and in any event, did not change the fact that the appeal application was out of time.
Appellant’s submissions
The appellant’s submissions on time (which are contained in Annexure A of the amended appeal application of 1 February 2019, and expand upon its submissions in Annexure A of the 15 January 2019 application) include various factual assertions which, for the purposes of this application, I will accept. The appellant’s submissions primarily concern difficulties in filing a complete application due to the appellant’s legal representatives and legal counsel being on leave over the Christmas and New Year holiday period. In the amended appeal application of 1 February 2019 the appellant includes a further submission in respect of the need to retain new counsel on 30 January 2019 due to health issues. The appellant notes that its solicitor was not present at the arbitral hearing and that the recording received on 14 January 2019 was of poor quality such that a transcript would be required to finalise its submissions. The appellant submits that it would be unjust for the time not to be extended for the appellant to file its appeal in light of these difficulties.
Respondent’s submissions
Ms Skiadas’, in her Notice of Opposition to Appeal Against Decision of Arbitrator (the opposition), “does not take any issue regarding the period in which the appellant lodged its Application to Appeal and submissions”.
Consideration
The extension of time is governed by r 16.2(12) of the Rules, which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
It is appropriate, in exercising the discretion, to have regard to the principles discussed in the judgment of McHugh J in Gallo v Dawson.[3] These principles were summarised by Roche DP in Allen v Roads and Maritime Services[4] as involving the need to have regard to the following:
“(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”
[3] [1990] HCA 30; 64 ALJR 458, [2].
[4] [2015] NSWWCCPD 39, [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[5] the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
[5] [2014] NSWCA 34 per Basten JA (Beazley P and Leeming JA agreeing), [9].
A Presidential member, dealing with an application to extend time pursuant to r 16.2(12), is required to consider the presence of ‘exceptional circumstances’, as “a matter within jurisdiction as opposed to a precondition”.[6]
[6] Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing), [8].
Campbell JA, in Yacoub v Pilkington (Australia) Ltd,[7] dealt with the phrase “exceptional circumstances”, in the context of r 31.18(4) of the Uniform Civil Procedure Rules 2005. His Honour said:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
[7] [2007] NSWCA 290 (Yacoub), [66].
Campbell JA in Yacoub said that in deciding whether ‘exceptional circumstances’ were present, it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. Similarly, I have held that where the phrase appears in r 16.2(12) of the Commission’s Rules, it is appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.
The appellant’s submissions do not specifically address the topic of whether ‘exceptional circumstances’ are established. Whilst the appellant refers to its case manager, solicitor and counsel taking leave during the holiday period, it provides no adequate explanation as to what happened in the initial 17 days following the issue of the Certificate of Determination and prior to the appellant’s solicitor taking leave, however I note the solicitor was not present at the hearing. Further, the appellant does not explain when exactly the case manager and counsel commenced leave. The appellant indicates the need to retain new counsel from 30 January 2019 due to counsel’s serious illness, however no explanation of any inquiries made prior to this date have been put forward.
There is nothing in the history of the proceedings, the conduct of the parties or the nature of the litigation which is relevant one way or the other. The following factors support the extension of time:
(a) the delay is relatively short. The appeal was originally sent for lodgment within time, and was lodged in its amended form on 15 January 2019 following rejection by the Registrar on 10 January 2019, 11 days out of time;
(b) the delay is explained; and
(c) prejudice is not asserted by Ms Skiadas.
The following factors militate against the extension:
(a) ‘exceptional circumstances’ are not present;
(b) the explanation of delay is inadequate; and
(c) Ms Skiadas’ has a vested interest in retaining the result in her favour,
The merits of the appeal are important in determining whether to lose the right to appeal would cause demonstrable and substantial injustice on the part of the appellant such that interests of justice favour the extension of time. The merits of the grounds of appeal are fully considered below. For reasons that follow, the employer’s appeal would not succeed on its merits, if time were extended. In those circumstances, there is no prejudice to the employer if the application to extend time is not granted. The appellant employer’s application to extend time pursuant to r 16.2(12) of the Rules is refused.
THE EVIDENCE
Ms Skiadas
Ms Skiadas’ filed two statements in this matter, the first dated 4 November 2015 and a supplementary statement dated 8 May 2018. In her supplementary statement dated 8 May 2018, Ms Skiadas confirmed that she underwent surgical intervention in the form of anterior cervical discectomy and fusion at C4/5 and C5/6 with Dr Al Khawaja. Two months after the surgery, she commenced physiotherapy and hydrotherapy and more recently had attended a gym program. Those treatments were still ongoing. Despite these treatments, Ms Skiadas said her neck injury had not improved and the level of pain that she continued to experience was very high.
Ms Skiadas stated she had been referred for further investigations by Dr Al Khawaja and on, or about, 8 December 2017, he advised that the only option available to her was to back up her anterior neck fusion with a posterior neck fusion. Ms Skiadas acknowledged that she had been advised that the risks from the further procedure were very high but regardless of the risk involved she wished to proceed with the surgery because the pain that she experienced on a daily basis was unbearable and her mobility was very limited.
Ms Skiadas described the impact of her symptoms on her daily life, including struggling to turn her head; headaches and migraines; being unable to drive long distances or sit for too long; difficulties with activities of daily living; and sleep disturbance. Ms Skiadas said that she used to be a very social person and enjoyed going out for dinner and drinks with friends and Greek dancing. Ms Skiadas used to look after her mother but she had been forced to give all of this up. Ms Skiadas said her patience was very short, she was in constant pain and suffered from major depression.
Dr Darweesh Al Khawaja
Ms Skiadas provided a series of reports from her treating neurosurgeon, Dr Darweesh Al Khawaja.
An operative report confirms that a C4/5 and C5/6 anterior cervical discectomy and fusion was performed on 15 April 2016.
At a review on 13 May 2016, four weeks post-surgery, Ms Skiadas said that pins and needles in her arms had improved significantly but she was still experiencing episodes of neck pain, shoulder pain and arm pain. Dr Al Khawaja advised Ms Skiadas to wait until her neck condition had settled before further investigation through CT scans and MRIs.
At reviews on 10 June and 18 August 2016, Ms Skiadas continued to complain of neck pain and pain on the right side reaching to her elbows. Dr Al Khawaja recommended further conservative treatment through physiotherapy and hydrotherapy.
On 26 August 2016, Dr Al Khawaja reviewed a CT scan which indicated that fusion had started at C4/5 and C5/6 but was not yet complete. Dr Al Khawaja noted changes at C6/7 level but advised to wait on this for the time being. Ms Skiadas was referred to a rehabilitation specialist for an opinion. Ms Skiadas was advised that the healing process was slow and could take up to 18 months.
On 28 October 2016, Ms Skiadas reported neck pain and bilateral shoulder pain at Dr Al Khawaja’s review. A CT scan was reviewed on that occasion and was said to show good fusion in the operated levels. Ms Skiadas was advised to continue with hydrotherapy and physiotherapy and return for review in about six months.
On 21 February 2017, Ms Skiadas reported a significant amount of pain in her neck and arms ending in the fingers. Ms Skiadas was referred for MRI of her cervical spine, SPECT scan and nerve conduction study to rule out any extension of the damage or new findings.
On 5 May 2017, Dr Al Khawaja reported that the SPECT scan showed post-surgical changes with no evidence of adjacent segment problems. The MRI did show some foraminal narrowing. The nerve conduction study raised the possibility of ulnar nerve entrapment. At this stage Ms Skiadas was continuing with physiotherapy.
On 5 August 2017, Dr Al Khawaja reported that Ms Skiadas was still at the same level of pain and discomfort in her neck and arms. Dr Al Khawaja reported that the fusion process in her neck was not complete and requested approval to continue with a gym program and hydrotherapy for a further three months, at which point he would refer Ms Skiadas for another CT scan to check the fusion process. If the fusion was not complete, Dr Al Khawaja indicated that he may need to offer a fusion from the back.
On 8 December 2017, Dr Al Khawaja reported that Ms Skiadas was still annoyed with neck and arm pain and shoulder pain on the right. She had an aggravation of her arm pain with tingling in the fingers. Dr Al Khawaja reported:
“I told Ms Skiadas the only option left in my hands is to back up the anterior fusion with a posterior fusion at C4/5 and C5/6 levels and to free the nerve on the right side because she has got foraminal narrowing from the latest MRI and scan. I told her there is a chance for this type of surgery to help her but I cannot guarantee it. The risks from this procedure include nerve damage which can put her in a wheelchair and affect her bladder, sexual function and bowel function for the rest of her life. Other risks include Dural tear, subsidence, bleeding, epidural clot, vascular injury and anaesthetic risks. Mal positioning of the screws may also occur which require re exploration of the hardware and infection which may go to the hardware and this may require taking the hardware out as well.
Ms Skiadas would like to try the surgery because she thinks it is too much pain and it hinders her activities significantly.”
Approval for the surgery was requested from the respondent’s insurer. A quote for the surgery prepared by Dr Al Khawaja on 18 December 2017 estimated his total costs for the procedure at $26,321.25 and noted that there would be additional hospital fees and post-operative consultations for 12 months following the procedure.
Dr WGD Patrick
Ms Skiadas was reviewed by Dr WGD Patrick, general and vascular surgeon and trauma surgeon, at the request of her solicitors. Dr Patrick provided two reports dated 7 and 9 August 2018 in which he was critical of the limited comments of the employer’s independent medical expert, Dr Chris Harrington, in respect of Ms Skiadas’ thoracic and/or lumbar spine and lower limbs. Dr Patrick noted that Ms Skiadas did not satisfy criteria for a persistent radiculopathy following the two-level AMP fusion surgery, but agreed with Dr Harrington that two level posterior augmentation fusion surgery would be reasonable if there were an established non-union of the fusion.
On 2 October 2018 Dr Patrick provided a report to Ms Skiadas’ solicitors which reported an overall deterioration in Ms Skiadas’ condition and she complained of increased cervical pain with radiation to the backs of the shoulders.
Dr Patrick noted that following a review on 21 September 2018, Dr Al Khawaja felt that posterior cervical fusion at the relevant levels was indicated in that Ms Skiadas’ condition was suggestive of at least some degree of non-union. It was also noted that there was some mild femoral stenosis on the right at C4/5 due to uncovertebral (neuro central) joint osteophyte formation.
Dr Patrick reported:
“It is the case that in this particular situation posterior cervical fusion can be an extremely useful approach to improve stability and with significant overall improved outcome. Dr Al Khawaja is a very competent neurosurgeon/spine surgeon and he is not one to carry out surgical procedures unnecessarily.
…
I do believe that this need for such further cervical surgery by way of posterior cervical fusions at C4/5 and C5/6 is in the circumstances appropriate and gives Jenny Skiadas her best chance toward optimal outcome.”
Dr Patrick provided a supplementary report dated 22 November 2018 after a further CT scan was performed on 3 November 2018, as arranged by Ms Skiadas’ treating general practitioner.
Dr Patrick commented that the CT scan of the cervical spine which had been carried out did not include flexion/extension views. Dr Patrick did agree that the appearances on the films indicated that it was “likely” that the two-level anterior cervical fusions were sound but it was not possible to be certain of the integrity because of the possibility of CT beam hardening artefact. Dr Patrick noted that MRIs are not helpful in this situation although plain x-rays could be helpful.
Dr Patrick expressed the view that Ms Skiadas was genuine in her approach and was not in any way malingering. Ms Skiadas had ongoing problematic pain with headaches and sleep disturbance and a persisting intermittent radiculopathy was not excluded.
Dr Patrick noted reporting radiologist, Dr Hunjan as extremely competent and noted his comments on the CT cervical spine report of 3 November 2018 that “the ongoing symptoms/signs may be related to foraminal narrowing, details above”.
Dr Patrick disagreed with the opinions expressed by Dr Harrington, and said that each individual case needs to be treated on its merits. Dr Patrick again reiterated his opinion that Dr Al Khawaja was not someone who operated unnecessarily and said he, like Ms Skiadas, would be working towards optimal outcome.
Dr Chris Harrington
The appellant employer relies on a series of medicolegal reports by orthopaedic surgeon, Dr Chris Harrington.
In a report dated 26 February 2018, Dr Harrington said Ms Skiadas’ symptoms remain unchanged from when he previously examined her in 2014, 2015 and 2017, and her main complaint was of neck pain. Ms Skiadas also described pins and needles in the ulnar supplied fingers. Dr Harrington noted that a nerve conduction study had been performed, which he had not seen, but speculated that it probably ruled out radiculopathy.
Dr Harrington said there had been some consolidation of the anterior fusion but he was not convinced it was solid. Dr Harrington accepted that the anterior spinal fusion had not been efficacious but did not envisage further treatment for the neck. Dr Harrington considered that Ms Skiadas had not been adequately treated with physiotherapy or hydrotherapy. Dr Harrington noted injections at C4/5 and C5/6 were not efficacious and the cause of Ms Skiadas’ symptoms were not adequately diagnosed. Dr Harrington suggested that an updated CT with flexion/extension views should be performed in April 2018 (being 18 months after the fusion) to figure out a plan. Dr Harrington then noted:
“if the fusion was solid on an updated CT and you decide to operate, then you are operating for neck pain, which we know is not reliable in the absence of objective radiculopathy. I would interpret that with a 10% chance of improving her symptoms and a 90% chance of not improving her symptoms; so there are good odds to make her worse. I think that the surgery would only become reasonable if there was an established non-union of the fusion and you are trying to get the fusion stabilised. Even doing that, where you have a plan of definite pathology that you are trying to address, it still may only be odds of a flip of coin whether it improves the situation or not.”
In a supplementary report dated 18 April 2018, Dr Harrington expressed the view that if the initial surgery had failed to achieve bony union there may be a legitimate cause for ongoing pain, that is, pseudo-arthrosis from the fusion. Dr Harrington noted that there appeared to be two reasons for proposed surgery: ongoing neck pain that was not alleviated by the first surgery and no objective signs of radiculopathy. However, Dr Harrington noted the indications for the surgery appeared to be based on Ms Skiadas’ disappointment or dissatisfaction with the first surgery which is not a pathological reason for further surgery.
Dr Harrington provided a further opinion on 14 November 2018 after reviewing the CT report dated 3 November 2018 and Dr Patrick’s report of 2 October 2018. Dr Harrington noted that he had also viewed the CT images.
Dr Harrington said:
“As outlined in my previous correspondence, the need for further surgery may be indicated if the fusion was not solid.
I have seen the films and read the CT report from Radiologist Dr Jaspal Hunjan. I agree that the fusion is solid, therefore the only indication for surgery would be ongoing pain and dissatisfaction from her first operation.
We know in cases like this, when you're embarking on a cascade of operations for pain rather than radiculopathy, it doesn't end with a satisfied patient and discontinued symptoms.
With radiological evidence of a solid fusion, I do not see the need for further surgery.”
Dr Jaspal Hunjan
On 3 November 2018, Dr Jaspal Hunjan provided a report of a CT span noting post-disc and vertebral body fusion from C4 down to C6 inclusive, with no associated complicating features. Dr Hunjan said the ongoing symptoms may be related to foraminal narrowing, mainly from uncovertebral joint OA, noting no new disc protrusion. Dr Hunjan recommended a trial of transforaminal injection at the levels of interest if symptoms persisted, after consultation with neurosurgical experts.
Dr Al Khawaja’s comments on the forensic reports
In a report dated 27 November 2018, Dr Al Khawaja provided comment and opinion on the forensic reports supplied by Dr Harrington and Dr Patrick.
Dr Al Khawaja commented that on the question of fusion, this was an individual and personal matter. It may appear that a fusion is solid but the patient still has micro movements. Dr Al Khawaja said he had seen this in his practice and it was difficult to confirm. What helped was the patient’s symptomology. If a fusion was very solid, the patient’s symptoms should disappear.
Dr Al Khawaja also commented that because Ms Skiadas still had foraminal narrowing, it was wise to open the foramen from the back and give Ms Skiadas more fusion from the back. Dr Al Khawaja said he could not guarantee that this would make any difference to her condition but Ms Skiadas believed that she could not continue to live the way she was and wished to take the chance. Dr Al Khawaja said he thought this was reasonable although
Ms Skiadas may end up having more treatment and pain management in the future.
Dr Al Khawaja said there was a chance of improvement with decompressing the spine from the back and backing up the anterior fusion with more posterior fusion.
THE ARBITRATOR’S REASONS
The matter was listed for arbitration hearing on 3 December 2018. Ms Skiadas was represented by Mr Tanner instructed by Ms Ventriglia, and the employer was represented by Mr Morgan. The matter proceeded on the written material, there were no applications to adduce oral evidence or to cross-examine.
The Certificate of Determination issued on 7 December 2018 records:
“1. The posterior cervical fusion surgery proposed by Dr Darweesh Al Khawaja is reasonably necessary treatment pursuant to s 60 of the Workers Compensation Act 1987.
The Commission orders:
2. The respondent to pay the costs of and incidental to the surgery proposed by Dr Darweesh Al Khawaja pursuant to s 60 of the Workers Compensation Act 1987.”
The Arbitrator referred to Roche DP’s decision in Diab v NRMA Ltd,[8] referring to the decision in Rose v Health Commission (NSW),[9] which set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
‘3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’”
[8] [2014] NSWWCCPD 72 (Diab).
[9] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
The Arbitrator noted DP Roche’s reference to and application of the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[10]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[10] [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo).
The Arbitrator then quoted DP Roche’s finding in Diab:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose …, namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”[11]
[11] Skiadas v Broadspectrum Australia Pty Ltd [2019] NSWWCC 5 (Reasons), [53] citing Diab, [88]–[89].
The Arbitrator turned to analyse the medical evidence. The Arbitrator was satisfied on the evidence that, following the anterior cervical discectomy and fusion surgery performed by Dr Al Khawaja on 15 April 2016, Ms Skiadas continued to suffer from pain in her neck and experience pain down the right side of her arm.[12]
[12] Reasons, [54].
The Arbitrator considered that the primary difference in medical opinions related to whether there was a solid fusion as a result of Dr Al Khawaja’s initial surgery and whether the further surgery proposed by Dr Al Khawaja was appropriate treatment as a result. The Arbitrator considered Dr Harrington’s opinion, based on the most recent CT scan, that due to there being a solid fusion, further surgery is not pathologically indicated.
The Arbitrator noted Dr Al Khawaja’s comments that whilst the fusion could appear solid, there could still be micro movements, which is difficult to confirm but indicative in the patient’s pain symptomology. The Arbitrator further noted Dr Patrick’s comments that it was not possible to be certain of the integrity of the fusion because of the possibility of CT beam hardening artefact. The Arbitrator ultimately found the opinions of treating Dr Al Khawaja and Dr Patrick persuasive, noting their explanations were “clear and consistent with the applicant’s ongoing complaints of pain”.[13] The Arbitrator also had regard to the costs of and incidental to the surgery and to Ms Skiadas’ evidence that she was well aware of the potential risks associated with the surgery.[14]
[13] Reasons, [57]–[58].
[14] Reasons, [62], [64].
The Arbitrator, upon balancing the range of considerations outlined at paragraphs [62] – [64] above, was satisfied that the surgery proposed by Dr Al Khawaja was reasonably necessary.
GROUNDS OF APPEAL
The appellant pleaded two grounds of appeal in its initial appeal application on 15 January 2019. On 18 January 2019 a Direction was issued to the appellant to file an amended application that complied with Practice Direction No 6 in respect of “submissions, using appropriate subheadings, that separately address each ground of appeal and contains a list of authorities” by 1 February 2019.
On 1 February 2019 the appellant filed an amended application, which included a further ground of appeal (ground three (ii) in those that follow). This went beyond the parameters of the Registrar's Direction of 18 January 2019. The appellant was directed to serve a sealed copy of the amended application on Ms Skiadas on or before 19 February 2019.
The appellant did not include a specific application for leave to amend its grounds, or submissions in support of such an application. I note the respondent has not asserted prejudice and was given the opportunity to address ground three (ii) in its opposition. As such, the preferable course is to grant leave to add the ground, and deal with it on its merits.[15]
[15] Bonica v Piacentini & Son Pty Ltd [2019] NSWWCCPD 4, [31] – [32].
The following grounds of appeal are raised by the appellant in this matter:
(a) Ground one: the Arbitrator erred in fact and in law by finding that the proposed surgery was “potentially effective” at [59] of the Statement of Reasons for relieving the respondent worker’s symptoms in circumstances where there was no expert evidence to this effect and the respondent worker’s expert evidence was contrary to such a finding;
(b) Ground two: the Arbitrator erred in law in that she failed to provide any, or any adequate, reasons for the finding that the proposed surgery is “potentially effective” at [59] of the Statement of Reasons;
(c) Ground three: the Arbitrator failed to properly engage with the appellant employer’s submissions in the hearing in respect of the following such that the appellant employer was not provided a proper hearing:
(i)Dr Al Khawaja had not properly addressed the radiological evidence and has proposed surgery to treat complaints of pain rather than any structural deficiency, and
(ii)that the first fusion had not been successful because it had been carried out to treat complaints of pain rather than any structural deficiency.
PRINCIPLES ON APPEAL
Section 352(5) of the 1998 Act provides as follows:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In the leading decision describing the appeal process under s 352(5) of the 1998 Act, Roche DP said as follows in Raulston v Toll Pty Ltd:[16]
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[17]
[16] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[17] Raulston, [19].
Raulston was referred to by the Court of Appeal (with approval) in Northern NSW Local Health Network v Heggie[18] where Sackville AJA (Ward JA agreeing) after referring to Raulston said as follows:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”[19]
SUBMISSIONS
Ground one
[18] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[19] Heggie, [72].
Appellant’s submissions
Under ground one the appellant alleges that the Arbitrator made an error of both fact and law in concluding that the proposed surgery “is potentially effective”.[20] The appellant reviews the evidence of the respondent worker’s two medical experts, Dr Al Khawaja and Dr Patrick, and maintains that the treating surgeon Dr Al Khawaja nowhere postulates the opinion that the proposed treatment was “potentially effective” and as a result it was not open to the Arbitrator to make the finding as was done in Reasons [59].
[20] Reasons, [59].
Respondent’s submissions
The respondent refers to the leading cases of Diab wherein Roche DP described the test to be adopted in determining if medical treatment is reasonably necessary is that as stated by Burke CCJ in Rose. The respondent points to the paragraphs extracted from Rose as constituting the test to be applied in considering whether treatment is reasonably necessary.[21] The Arbitrator also referred to the paragraphs in Diab which expand upon the matters referred to by Burke CCJ in Rose.[22] The respondent maintains that the Arbitrator, having set out the relevant case or principles as disclosed in Rose and Diab, then reviewed the medical evidence in detail before reaching a conclusion that the proposed surgery was reasonably necessary.
Ground two
[21] Rose, [3]–[5].
[22] Diab, [88].
Appellant’s submissions
Under ground two the appellant alleges that the Arbitrator failed to provide any, or any adequate, reasons for the finding that the proposed surgery was “potentially effective”.
The appellant, after referring to case law regarding the duty to give reasons, substantiates this ground in the following argument:
“The Arbitrator does not set out the reasoning process or identify the constituent facts on which she has relied to conclude that the proposed treatment is ‘potentially effective’. It is submitted that she has not done so because there is no evidence to support such a conclusion”.[23]
[23] Appellant’s submissions 1 February 2019, [10].
Respondent’s submissions
The respondent replies succinctly to this allegation in one sentence:
“The Arbitrator’s reasons are clearly set out from [54] to [65] of her Statement of Reasons, and the respondent can be left in no doubt as to the basis for the decision.”[24]
Ground three
[24] Respondent’s submissions 19 March 2019, [21].
Appellant’s submissions
The appellant alleges that the Arbitrator failed to properly engage with the appellant’s submissions that were made at the hearing and as a result the appellant was not provided with a proper hearing. This is in respect to two matters. Firstly that the treating doctor, Dr Al Khawaja, had not properly addressed the radiological evidence because if he had, there was no basis in the radiological evidence to propose the operative procedure. Dr Al Khawaja is criticised for failing to address the findings of Dr Hunjun in his report of 3 November 2018 in respect of the CT scan of the worker’s cervical spine. The respondent also criticises reliance on the opinion of Dr Patrick, who provided a medico-legal opinion for the worker, in that Dr Patrick, it is alleged, did not address the radiology or provide an opinion addressing whether surgery was likely to be successful in alleviating the worker’s symptoms.
Respondent’s submissions
The respondent submits that the argument which is set out in ground three had not been advanced before the Arbitrator and ought to be rejected.
CONSIDERATION
As to Ground One
On its face, ground one alleges that the Arbitrator erred in both fact and law in reaching a particular conclusion, namely that the proposed medical treatment is “potentially effective”. It is submitted by the appellant that this finding was not open to the Arbitrator to make in the face of the expert evidence.
In short, this submission attacks what was a factual finding that the surgery was “potentially effective” set out at Reasons [59].
In accordance with what was said in Raulston (above), it is not sufficient that the Arbitrator may have preferred one view as opposed to another, the conclusion must be wrong. It is clear that under this ground in terms of the factual finding that the Arbitrator made that the surgery was “potentially effective”, the respondent clearly asserts that this was wrong because they state there was no evidentiary basis for making this finding.
It is therefore necessary to examine the evidence in order to assess whether this conclusion is made out and is thus an error of the Raulston kind.
In so doing, I would remark that the ultimate finding in this respect which appears at Reasons [59] cannot be viewed in isolation, rather it is necessary to read the Arbitrator’s reasons as whole.[25]
[25] Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 444.
At Reasons [22] the Arbitrator set out an extract from Dr Al Khawaja’s report of 8 December 2017. Relevantly the doctor stated as follows:
“I told Ms Skiadas the only option left in my hands is to back up the anterior fusion with a posterior fusion at C4/5 and C5/6 levels and to free the nerve on the right side because she has got foraminal narrowing from the latest MRI and scan. I told her there is a chance for this type of surgery to help her but I cannot guarantee it.” (emphasis added
At Reasons [26] Dr Patrick provided the following opinion:
“It is the case that in this particular situation posterior cervical fusion can be an extremely useful approach to improve stability and with significant overall improved outcome.”
Both doctors also provided their views about what appeared to be the lack of objective signs on the CT scan. These opinions were the subject of attention by the Arbitrator which led to her conclusion found at Reasons [58].
In contrast, Dr Harrington for the employer was of the view that in the absence of objective signs in the films and CT report, and in the absence of radiculopathy, and due to the fact that the fusion appeared to be solid, he did not see the need for further surgery.[26]
[26] Reasons, [36].
In this case the Arbitrator was faced with competing medical opinions, as is often the case in s 60 matters. As I read the medical evidence before the Arbitrator, the doctors were all ad idem on what the scans showed. Where their opinions differed was in the interpretation. Drs Al Khawaja and Patrick reviewed the scans in the context of the ongoing complaints of pain and disability from Ms Skiadas. Dr Al Khawaja was ultimately of the view that if the fusion was solid, as shown by the scans, the patient’s symptoms should have disappeared and the fact that this had not happened led him to believe that there might be micro movements.
Dr Patrick considered that the surgery gave “Jenny Skiadas her best chance toward optimal outcome” and further stated, following his review on 21 September 2018, that Ms Skiadas’ condition was suggestive of at least some degree of non-union of the fusion.
For Dr Harrington, the lack of objective signs on the scans was for all intents and purposes the end of the discussion. His view was that notwithstanding the worker’s ongoing complaints of pain, there was no objective indicator for the proposed surgery and in his report of 26 February 2018, gave the surgery a “10% chance of improving her symptoms and a 90% chance of not improving her symptoms”.
The evidence, when properly reviewed, fails to substantiate the appellant’s argument that the findings at Reasons [59] had no evidentiary basis. Whilst neither Dr Al Khawaja or Dr Patrick use the precise words that the surgery was “potentially effective”, that is the purport of their opinions. It is to be noted that the phrase “potentially effective” appears in both Rose and Diab as being one of the relevant matters to consider in terms of the criteria of reasonableness under s 60 of the 1987 Act. It is therefore a proper matter for the Arbitrator to consider. Dr Al Khawaja, consistent with the practice of professional surgeons, could give no guarantee about the result of the surgery. This is unremarkable. But he still was of the opinion that the type of surgery being proposed could help her. Dr Patrick considered the surgery to be an “extremely useful approach to improve stability with significant overall improved outcome” as referred to above. These opinions, without using the phrase “potentially effective”, are in my view saying precisely that. Namely that the surgery could potentially be effective for Ms Skiadas, but no guarantees could be given.
Even Dr Harrington thought that there was a low chance of improving her symptoms, 10%, and thus would not recommend proceeding. Dr Harrington would not proceed also on the basis of the lack of objective signs on the films or CT scan. But Dr Harrington’s 10% chance of success is in any event suggesting that the proposed procedure is potentially effective, albeit he gives it a low prospect of success.
It can thus be seen that there was available evidence to substantiate the finding made at Reasons [59]. It is simply not correct to assert, as asserted by the appellant, that this conclusion was without a basis in the evidence.
The submission has not been developed as to how the appellant states that the Arbitrator’s conclusion is both an error of fact and law, although one might divine that the making of the finding in the absence of any evidentiary basis is a mixed question of fact and law. However the submission has not been developed to precisely state how the error said to have been made by the Arbitrator is to be characterised. In any event, given what I have found regarding the Arbitrator’s finding at Reasons [59], this appeal ground would not succeed.
As to Ground Two
As this ground alleges that the Arbitrator failed to provide any or any adequate reasons with respect to the finding that the proposed surgery was “potentially effective”, it is appropriate to review the law and principles pertaining to the adequacy of reasons and apply them to the present circumstance. In the recent Presidential decision of Fairfield City Council v McBride[27] Deputy President Snell reviewed the principles pertaining to the adequacy of reasons.[28] These principles can be summarised as follows:
(a) McColl JA in Pollard v RRR Corporation Pty Ltd[29] said that “[t]he extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[30]
(b) Her Honour said:
“The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another.”[31] (citations omitted)
(c) Her Honour said that “[b]ald conclusionary statements should be eschewed”.[32]
[27] [2019] NSWWCCPD 28 (McBride).
[28] McBride, [47]–[48].
[29] [2009] NSWCA 110 (Pollard).
[30] Pollard, [58].
[31] Pollard, [56]–[57].
[32] Pollard, [64].
This case related to the discrete question as to whether or not the worker’s proposed surgery was reasonably necessary. Essentially this dispute was between the opinions of Dr Patrick and Dr Al Khawaja who supported the surgery, and Dr Harrington on behalf of the employer who did not see the need for further surgery. This dispute therefore governs the “extent and content of reasons” as stated by McColl JA (above).
The Arbitrator approached this task in the following manner. The worker’s evidence was reviewed and in particular her complaints of ongoing pain and discomfort after her first surgery. The Arbitrator then reviewed the medical reports of the three doctors concerned, Dr Al Khawaja, Dr Patrick and Dr Harrington.[33]
[33] Reasons, [14]–[39].
The Arbitrator’s formal findings commence at Reasons [50]. The Arbitrator correctly identifies the relevant authorities for determining whether medical treatment is necessary, namely Diab, Rose and Bartolo. The medical evidence of the three specialists was then reviewed in detail.[34]
[34] Reasons, [54]–[65].
In this appeal ground, the finding which is made at Reasons [59] is specifically attacked for being devoid of reasons or any adequate reasons.
It is to be noted that this argument was taking place in the context of the opinion advanced by the appellant employer from Dr Harrington. At Reasons [36] Dr Harrington’s ultimate opinion is set out. It provides:
“As outlined in my previous correspondence, the need for further surgery may be indicated if the fusion was not solid.
I have seen the films and read the CT report from Radiologist Dr Jaspal Hunjan. I agree that the fusion is solid, therefore the only indication for surgery would be ongoing pain and dissatisfaction from her first operation.
We know in cases like this, when you're embarking on a cascade of operations for pain rather than radiculopathy, it doesn't end with a satisfied patient and discontinued symptoms.
With radiological evidence of a solid fusion, I do not see the need for further surgery.”
As can be seen, Dr Harrington’s opinion was based upon a review of the diagnostic material (the films and the CT report) which showed that the fusion from the previous operation was solid. He therefore concludes that the only indication for surgery is effectively the worker’s preference, rather than being grounded in any investigatory result which would lead to a recommendation for further surgery.
At Reasons [57], the Arbitrator carefully weighed Dr Harrington’s opinion with that of Drs Patrick and Al Khawaja. These two doctors’ evidence suggested that whilst the CT scan suggested the fusion was solid, that may not in fact be the case, and the doctors gave reasons as to why that was their view. It is to be noted that the three medical opinions all accepted the worker’s ongoing complaints of pain and disability. Having weighed the competing opinions, the Arbitrator then found as follows:
“The opinions given by Dr Patrick and Dr Al Khawaja are persuasive. Their explanations are clear and consistent with the applicant’s ongoing complaints of pain. In all the circumstances, I accept their opinions that the proposed surgery is indicated and appropriate.”[35]
[35] Reasons, [58].
It is clear from a perusal of the decision and the passages and evidence which I have referred to that the Arbitrator accepted Dr Al Khawaja and Dr Patrick’s explanations as to why the fusion might not be solid, even though it appeared so from the CT scan. This is the central issue upon which the medical evidence diverged – namely, as a result of viewing and interpreting the films and CT scan, was further surgery indicated? It is apparent that these explanations were supported by the worker’s complaints of pain and that the conclusion referred to in Reasons [58] was based upon an examination of that evidence and an explanation as to why it was preferred. Having made these findings, about which there can be no doubt about how the evidence was reviewed, the Arbitrator then found that the surgery was “potentially effective” at Reasons, [59].
There was a contest in the medical evidence about whether the proposed surgery would be successful and the worker had been advised regarding a number of potential downsides of the surgery.[36]
[36] Reasons, [22].
Dr Patrick concurred and considered the proposed surgery “can be an extremely useful approach to improve stability with significant overall improved outcome.”[37] In contrast, Dr Harrington did not consider the surgery was warranted and felt that it was unlikely to achieve the desired result.
[37] Reasons, [26].
At Reasons [51] and [53], the Arbitrator was reviewing two leading cases in the area of determining whether medical treatment is reasonably necessary, namely Diab and Bartolo. In both of those cases Deputy President Roche outlined the approach to determining if medical treatment is reasonably necessary and set out a number of matters that the Court will have regard to, one of which is the potential effectiveness of the treatment.
The finding at Reasons [59], when properly understood, is merely the Arbitrator’s application of Deputy President Roche’s approach to the evidence that had been reviewed. The Arbitrator concluded that the proposed surgery was potentially effective and there is support for this finding in both Dr Al Khawaja’s evidence and in Dr Patrick’s evidence (referred to above).
It is clear that the Arbitrator, in accordance with the comments of McColl JA in Pollard, did indeed “enter into” the issues canvassed and explained why she preferred the opinions of Dr Al Khawaja and Dr Patrick. This is not a “bald conclusionary statement” that is warned against, rather this is a finding coming at the end of a process of reasoning and weighing of evidence. The Arbitrator undertook an appropriate analysis of the evidence.
As to Ground Three
The appellant alleges under this ground that it was not provided with a proper hearing. It is alleged that the Arbitrator “failed to properly engage with the appellant employer’s submissions” and then points to two factual allegations in support of this submission.
The appeal point is developed in the submissions and criticises the report of Dr Al Khawaja of 27 November 2018 for failing to address the findings of Dr Hunjan with respect to the CT scan. Dr Al Khawaja’s report is criticised by the appellant for failing to address Dr Hunjan’s findings and instead alleging that he engaged in speculation as to the cause of the respondent worker’s symptoms.
Firstly, in order to examine this allegation, it is necessary to review what transpired at the hearing on 3 December 2018 and in particular what was the case conducted by the appellant.
Counsel for the appellant at the hearing submitted as follows:
“In the respondent's submission, Arbitrator, we say Dr Al-Khawaja has not addresse[d] the radiological picture or explained why such radical surgery is necessary to address the complaints of pain that have been made per the opinion of Dr Harrington rather than a structure deficiency, in our submission, and we'd say you'd not be so satisfied that the applicant had discharged the relevant onus and my friend took you to the test which is seen in Diab.”[38]
[38] Transcript of Proceedings (T), Skiadas v Broadspectrum Australia Pty Ltd [2019] NSWWCC 5, Arbitrator Homan, 3 December 2018, T 18.14–22.
Whilst counsel for the appellant did not mention Dr Hunjan’s CT scan in terms, he made reference to the further series of scans and to Dr Al Khawaja’s ultimate opinion that the fusion proposed was the only option available.
This argument was clearly considered by the Arbitrator at Reasons [55]–[57]. In particular at Reasons [57] the CT scan about which counsel for the appellant addressed, is clearly considered. There is therefore no basis for the complaint made by the appellant on this issue.
The second complaint under this ground is that the first fusion had not been successful because it had been carried out to treat complaints of pain rather than to treat a structural deficiency. There are a number of difficulties with this appeal ground. Firstly, no submission has been made in the appellant’s written submissions pertaining to ground three (ii). Secondly and perhaps more tellingly, no argument to this effect was advanced to the Arbitrator. It is true that it was Dr Harrington’s view that with respect to the second fusion operation he was of the opinion that the recommendation for this treatment was based upon the worker’s complaints of pain rather than being founded in any investigatory study. But no argument was pursued about the first fusion which is the complaint in this part of ground three.
It is well accepted that a party is generally bound by the conduct of their case. The Arbitrator determined the matter on the basis of the arguments that were advanced. The appellant cannot now attempt to reagitate matters in a manner that is not consistent with the conduct of the case at first instance.[39]
[39] University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7], 483; Smits v Roach [2006] HCA 36; 228 ALR 262; 80 ALJR 1309 at [46].
There is no basis to the allegation that the Arbitrator failed to afford the appellant a proper hearing on these issues. The first issue which is complained about was succinctly made to the Arbitrator and is the subject of detailed findings. There is no basis to say that the Arbitrator “failed to properly engage” with this submission. This submission in fact is clearly incorrect. Secondly, the manner of complaint raised by the appellant was not raised below and it is unfortunate that it is alleged that the Arbitrator was somehow said to have failed to engage with an argument that was not made.
This appeal ground, which is advanced ostensibly as a complaint about not being given a proper a hearing, is in reality a complaint with respect to an adverse factual finding which was, on the evidence, available for the Arbitrator to make. There was no error in this approach.
It follows from the above that the appeal would not succeed on its merits, as all three grounds would not be made out. It does not have any prospects of success.
CONCLUSION
The following factors support the extension of time:
(a) the delay is relatively short. The appeal was originally sent for lodgment within time, and was lodged in its amended form on 15 January 2019 following rejection by the Registrar on 10 January 2019, 11 days out of time;
(b) the delay is explained, and
(c) prejudice is not asserted by Ms Skiadas.
The following factors militate against the extension:
(a) ‘exceptional circumstances’ are not present,
(b) the explanation of delay is inadequate,
(c) Ms Skiadas’ has a vested interest in retaining the result in her favour,
(d) the appeal does not have prospects of success, and
(e) in such circumstances, loss of the right to appeal does not cause the appellant demonstrable and substantial injustice.
The factors overall do not favour the extension of time. Of particular importance are the lack of prospects of success, and the consequential absence of demonstrable and substantial injustice if the extension is refused.
DECISION
The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Judge Phillips
PRESIDENT
5 July 2019
5
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