Bui v HyView Fabrications Pty Ltd - [2023] NSWPICPD 49

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bui v HyView Fabrications Pty Ltd [2023] NSWPICPD 49
APPELLANT:	Viet-Cuong Bui
RESPONDENT:	HyView Fabrications Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W1908/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	16 August 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 19 July 2022 is revoked. 2. There is an award in favour of the appellant for the cost of the C4-6 Anterior Cervical Decompression and Fusion recommended by Dr Singh. The respondent is to pay the reasonable cost of this surgery as particularised by the appellant.
CATCHWORDS:	WORKERS COMPENSATION – whether surgery is a reasonably necessary medical expense pursuant to section 60 of the Workers Compensation Act 1987 – Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWWCCPD 72 considered – approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, South Western Sydney Area Health Service v Edmonds 2007 NSWCA 16 and Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 applied – guiding principles under rule 73 of the Personal Injury Commission Rules 2021 and section 21 of the Personal Injury Commission Act2020 – revocation and redetermination on appeal – section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998 – Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Lam, solicitor
Longton Compensation Lawyers
Respondent:
Mr B Stringer
Moray & Agnew Lawyers

DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	19 July 2022

INTRODUCTION

Viet-Cuong Bui, the appellant, was born in Vietnam, migrating to Australia in 1987. Thereafter he held various positions which involved him undertaking heavy physical work until commencing employment with HyView Fabrications Pty Ltd, the respondent, on 10 October 2018. On 3 April 2019, in the course of his employment with the respondent, the appellant fell off the tynes of a forklift and suffered injuries to his neck, shoulder and head in the nature of a concussion. Injury is not in dispute.
The appellant’s treating specialist, Dr Bhisham Singh, orthopaedic and spine surgeon, has recommended that the appellant undertake surgery, being a C4 to C6 decompression and fusion.[1] The respondent has contested whether the proposed surgery is reasonably necessary as contemplated by s 60(1) of the Workers Compensation Act 1987 (the 1987 Act). This was the sole issue to be determined by the Member.
[1] Application to Resolve a Dispute (ARD), p 48, [5].
In a decision dated 19 July 2022, the Member found that the proposed surgery was not reasonably necessary and entered an award in favour of the respondent. It is from that decision that the appellant pursues this appeal.
I would remark that the respondent, in a letter from its solicitors dated 9 September 2022, indicated that it will not be filing submissions in opposition to the appeal.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (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.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the appellant 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

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 (the 1998 Act) have been met.

THE EVIDENCE

The appellant appears to have initially come under the care of Dr Hanna, neurologist, following a referral from Dr Vo, general practitioner. According to the appellant, Dr Vo was his first treating doctor, who no longer wanted to deal with workers compensation cases.[2] As noted by the Member in her reasons, records from Dr Vo were not in evidence nor produced despite a direction being issued. On 29 April 2019, Dr Hana reported that the appellant was referred to him for treatment of a severe headache arising after the workplace fall onto his left side.[3] Dr Hanna indicated that the appellant did not lose consciousness and denied neck stiffness. He was referred for a brain MRI and other tests.
[2] Appellant’s statement, ARD, p 3, [26].
[3] ARD, p 58.
The appellant then came under the care of Dr Yasmin Khan and other occupational physicians at Injury Care Pty Ltd, apparently by way of referral from his rehabilitation provider.[4] Dr Khan reported to the insurer on 26 November 2019 that the appellant had been prescribed pain medication (Fenac 50 mg) to manage his neck and shoulder pain. At that time, it was recommended that the appellant undergo physiotherapy and exercise to treat his injury, despite having some capacity for work.[5] An MRI conducted on 6 November 2019 at the request of Dr Khan revealed spondylosis at C4/5 with mild to moderate disc space changes, and bursitis in the left shoulder.[6]
[4] Appellant’s statement, ARD, p 3, [27].
[5] ARD, p 51.
[6] ARD, p 88.
Dr Khan referred the appellant to a chiropractor, David Abi-Arrage. In a report addressed to Dr Khan dated 21 January 2020, Mr Abi-Arrage notes that the appellant did not lose consciousness as a result of the incident but had ongoing shoulder and neck pain.[7] The appellant presented with a limited range of cervical movement on examination, with positive radial and median nerve tests. Mr Abi-Arrage was of the opinion the appellant was suffering from post-traumatic shoulder pain and a cervical whiplash injury requiring conservative treatment. This recommendation for conservative treatment was maintained in a report of 8 April 2020, by way of strength and movement rehabilitation protocols, musculoskeletal dry needling, active release techniques, joint mobilisations and corrective exercises.[8]
[7] ARD, p 79.
[8] ARD, p 81.
In a report of 13 February 2020 addressed to the insurer, Dr Khan diagnosed the appellant with adjustment disorder, a concussion, and strains to the left shoulder and neck which were consistent with the mechanism of injury. The appellant’s neck pain was triggered by lying down or changing postures.[9] In another report of the same date addressed to a rehabilitation provider, Dr Khan confirmed the diagnosed injuries which were being treated by way of pain medication, sleeping tablets and psychiatric medication, manual therapy, possible cortisone injections, and review by a psychologist/psychiatrist.[10]
[9] ARD, p 54.
[10] ARD, p 56.
The appellant was referred to Dr Jonathan Herald, orthopaedic surgeon, who first examined him on 16 March 2020, and interestingly reported that the appellant lost consciousness as a result of the fall.[11] I note this is inconsistent with the report taken by Dr Hanna which I referred to at [8]. Dr Herald noted that the appellant suffered from post-traumatic pain and depression as a result of the incident, and was undergoing physiotherapy and taking anti-inflammatories but had developed problems with his both shoulders. On examination, the doctor observed cervical spine and shoulder pain (with stiffness) and noted that MRI scans of the cervical spine revealed an “acute area of spondylosis at the C4/5 level” but was unsure of a possible fracture to the neck in the absence of x-rays. Dr Herald nevertheless diagnosed a “whiplash injury of the cervical spine with a possible C4/5 fracture”, as well as bilateral adhesive capsulitis, possible left shoulder SLAP lesion and depression. The appellant was referred for an x-ray of his cervical spine and MRI of his right shoulder, and recommended injections to his left shoulder (which took place on 6 May 2020[12]). The doctor noted the appellant was seeing a psychologist and suggested that the appellant “control his depression which may be affecting his recovery”. The Member states at [26] of her reasons that an x-ray does not appear on file, but this is located at p 93 of the ARD, addressed to Dr Herald and dated 6 May 2020. In respect of the cervical spine, it reveals mild degenerative disc disease at the C4/5 level, no significant bony neural foraminal stenosis, and multilevel mild facet joint arthritis. No fracture appears. X-rays of the right shoulder carried out on the same date indicated several tears and tendinosis.[13]
[11] ARD, p 60.
[12] ARD, p 90.
[13] ARD, p 91.
I note that a subsequent CT scan carried out on 10 July 2020 confirms no evidence of a cervical spine fracture, but finds reduction of disc height at C4/5 with a mild disc protrusion and moderate narrowing of the left C4/5 neural foramen for the exiting left C5 nerve root.[14]
[14] ARD, p 94.
Dr Herald examined the appellant again on 3 August 2020 according to a report dated 19 August 2020.[15] There is no report available for the examination on 3 August 2020 but Dr Herald recounts that on that occasion, the relevant MRI scans revealed a partial thickness tear and subacromial bursitis, but the doctor “felt that most of his pain was coming from his neck, especially as the cortisone injection in his shoulder did not seem to give him much relief”. Dr Herald was concerned that the problem was thus resonating from a C5 nerve compression as a result of a C4/5 disc prolapse and prescribed the appellant Endep and referred him to a neurosurgeon. The doctor also noted that he had referred the appellant to physiotherapy, hydrotherapy and for cortisone injections, and also recommended seeing a psychologist. Dr Herald considered the appellant had restricted capacity to engage in certain work activities including lifting, driving, pushing or pulling.
[15] ARD, p 62.
Shortly thereafter, Dr Eric Lim, general practitioner became the appellant’s nominated treating doctor. In a report of 20 August 2020, Dr Lim records the appellant’s symptoms as headaches, neck pain and stiffness radiating down both shoulders, shoulder pain and clicking, pins and needles in the left land, right hand pain, trouble sleeping, nightmares, flashbacks and other mood disturbances.[16] The doctor observed restricted left shoulder movement and rotation of the neck. Dr Lim diagnosed the appellant with head trauma, cervical spine radiculopathy, C4/5 spondylosis, left shoulder bursitis, a right supraspinatus tear, subscapularis tear, infraspinatus tendinosis, a degenerative superior labral tear and PTSD. The doctor considered the appellant was completely unfit for work and recommended a multidisciplinary management program, by way of referral to physiotherapy, a psychologist, psychiatrist, orthopaedic surgeon, spine surgeon as well as a CT scan of the brain. The doctor recommended that the appellant refrain from consuming “narcotic” medication.
[16] ARD, p 64.
The appellant was referred by Dr Lim to Dr Bhisham Singh, orthopaedic and spine surgeon, who has treated the appellant since September 2020. I do not repeat Dr Singh’s reports here as I traverse them in detail in the grounds of appeal, as Dr Singh ultimately recommends the cervical surgery subject to this dispute, in the nature of an anterior cervical decompression and fusion from C4 to C6.[17] I do note that Dr Singh referred the appellant for another MRI scan which took place on 12 September 2020 revealing C4/5 right paracentral disc protrusion with mild flattening of the right hemi-cord; C5/6 posterior central annulus tear and disc bulge with mild cord flattening; discovertebral changes with mild cord compression; multilevel facet joint arthropathy, and no root impingement.[18] Dr Singh attributes the neck and shoulder pain to disc bulging, and recommended left C4 and right C5 perineural steroid injections which took place on 19 October 2020 and 20 October 2020 respectively, before the recommendation for surgery.[19]
[17] ARD, p 46.
[18] ARD, p 97.
[19] ARD, pp 99–100.
The appellant was also referred by Dr Lim to Dr Gavin Soo, orthopaedic surgeon, who reported on 28 September 2020 primarily in relation to the shoulder conditions.[20] In this report, Dr Soo noted that the appellant lost consciousness on the date of injury and experienced worsening neck and shoulder pain following the incident. Dr Soo noted the cortisone injection to his left shoulder did not alleviate his symptoms, with tenderness and restricted movement present on examination. Dr Soo considered the appellant had signs of long head of biceps tenosynovitis and adhesive capsulitis. Dr Soo recommended hydrotherapy together with physiotherapy, and potential anti-inflammatories, however, if this did not improve his symptoms, surgery may be discussed. Dr Soo reported on 23 November 2020 that the appellant’s condition appeared to have improved due to increased movement in the shoulder and recommended continuing hydrotherapy, despite the appellant’s objection.[21] In January 2021, Dr Soo confirmed his recommendation to maintain non-surgical measures including hydrotherapy and advised he did not need to see the appellant again.[22]
[20] ARD, p 67.
[21] ARD, p 70.
[22] ARD, p 72.
A hydrotherapy report of Mr Moses Chu addressed to Dr Morgan Mo of the Workers Doctors Clinic dated 15 October 2020 referred to complaints of “constant and deep” pain in respect of the neck and shoulders plus pins and needles in both arms. Mr Chu’s clinical impression of the cervical spine was of radiculopathy and C4/5 spondylosis, as well as left shoulder bursitis and tears in the right shoulder. A course of hydrotherapy was recommended.[23]
[23] ARD, p 83.
The appellant was psychiatrically treated by Dr Nirenjen St George, psychiatrist, on referral from Dr Lim. In an initial report of 23 September 2020, Dr St George took a history of physical ailments arising from the work incident as well as “deterioration in his mental state”, low mood, poor concentration, insomnia, loss of identity, anxiety, catastrophic thinking and negative ruminations.[24] Upon examination, Dr St George considered that the appellant appeared to have “logical and coherent” thoughts, albeit consisting of “ongoing trauma related stressors exacerbated by his chronic pain and limitations in functionality and mobility”. The appellant’s cognition was intact and he appeared to have appropriate insight and judgement. Dr St George diagnosed the appellant with adjustment disorder with mixed anxiety and depressed mood.
[24] ARD, p 74.
In a subsequent report addressed to Dr Lim on 9 December 2020, Dr St George diagnosed the appellant with adjustment disorder with mixed anxiety and depressed mood with the addition of traumatic brain injury with impulse control issues.[25] According to the doctor, the appellant was “unsuitable for work rehabilitation and retraining as there is significant need for further stabilisation of his adjustment disorder and then management of his post concussion syndrome and sequalae of his traumatic brain injury”.
[25] ARD, p 77.
On 14 January 2021, Dr St George noted that the appellant was having flare ups of shoulder pain and headaches which were deteriorating his quality of sleep, as well as on-going issues associated with his brain injury. Dr St George said that the appellant required support with all of his activities of daily living.[26] This appears to be the last report available in evidence from Dr St George.
[26] ARD, p 78.
On 19 January 2021, Dr Singh reported that the right-side cervical injection improved the appellant’s C4/5 symptoms, but the left-side injection did not assist his C3/4 symptoms, and the appellant was thus keen to consider surgery which the doctor thought to be “very reasonable”.[27] In letters addressed to Dr Lim, copied to the insurer, dated 27 October 2021[28] and to the appellant’s solicitors dated 11 November 2021,[29] Dr Singh maintains his recommendation for surgical intervention noting the appellant had “trialled conservative treatment for more than 2 years” which was not successful, nor was the injection.[30] At this examination, the appellant appeared to have C6 as well as C4/5 radicular symptoms and thus the appellant was “keen on obtaining a more durable solution to his symptoms” by way of decompression surgery which was reasonably necessary in the failure of conservative treatment.
[27] ARD, p 46.
[28] Application to Admit Late Documents (AALD) dated 15 June 2022, p 1.
[29] ARD, p 47.
[30] ARD, p 48.
According to a report of 9 February 2021 from Maro Awad, physiotherapist of Flex Physiotherapy, the appellant had undergone 35 sessions of physiotherapy but still presented with “[d]iscomfort and limited neck range of motion due to mild cord compression with pain radiating down bilateral arms”.[31] It was stated that the appellant’s “pain perception, range and muscle length are fluctuating and objective measures have not been stable, due to underlying conditions such as pain, excessive stiffness, excessive guarding and compensations …”.
[31] ARD, p 84.
In response to Dr Singh’s recommendation for surgery, the respondent relies on the independent medical opinion of Dr John Stephen, neurosurgeon, who provided reports dated 25 May 2021, 12 July 2021 and 12 January 2022. Initially, Dr Stephen opined that the appellant had suffered non-specific soft tissue damage to his neck and did not agree with the surgery proposed by Dr Singh. In fact, the doctor considered that there were no appropriate recommendations for treatment as the appellant had been refractory to all forms of treatment due to significant “symptom focusing and symptom magnification”. The doctor thus did not anticipate the appellant would recover from his symptoms.[32] Dr Stephen maintained this opinion in his second report, clarifying that there was no clinical or radiological evidence of nerve root compression, and thus the cervical surgery was “strongly contraindicated” as it would not improve the appellant’s condition.[33] Dr Stephen last reported that the request for surgery was merely based on the appellant’s “complaints”, but was unreasonable and unnecessary, as operative treatment was “doomed to fail”.[34]
[32] Reply to Application to Resolve a Dispute (reply), pp 54–60.
[33] AALD dated 21 April 2022, p 4.
[34] AALD dated 21 April 2022, p 6.

THE MEMBER’S REASONS

The Member identified the sole issue for determination, namely whether the proposed surgery was reasonably necessary. The Member correctly directed herself as to the relevant authorities for cases involving a claim for s 60 medical expenses.[35]
[35] Bui v HyView Fabrications Pty Ltd [2022] NSWPIC 392 (reasons), [70]–[76].
The Member proceeded to review the appellant’s evidence[36] before embarking upon a detailed review of the medical evidence. This review traversed reasons [15] to [58], the salient parts of which I have described above in the Evidence section of this decision.
[36] Reasons, [6]–[14].
The Member noted that there was acceptance that the appellant had suffered injury to his cervical spine but that there was no consensus as to the exact nature of that injury.
The Member noted gaps in the medical records and in particular the absence of notes from Drs Vo and Khan meant that there was no evidence of the ‘conservative’ treatment with respect to the appellant’s cervical injury, at least from these doctors. The Member noted the divergence between the appellant’s evidence and the last certificate form Dr Khan.

The Member also noted the appellant’s progressing psychological injury, noting with alarm Dr St George’s diagnosis that the appellant had suffered a “traumatic brain injury on the basis of impulse control issues.”[37] The Member noted that notwithstanding this diagnosis, psychiatric treatment stopped when Dr St George left the practice.
[37] Reasons, [86].
The Member then examined Dr Singh’s reports. The Member is critical of Dr Singh, saying that he relied on the single MRI scan taken on 12 September 2020 and had not viewed the previous scan. The doctor had not considered the appellant’s other conditions arising from the injury and had not considered the history as a whole. This, the Member said, meant that the doctor did not provide a proper basis for his opinion in the way described in Onesteel Reinforcing Pty Ltd v Sutton.[38] The Member also remarked that Dr Singh only saw the appellant once in person and this was after he had recommended surgery.
[38] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
The Member dealt with the report of Dr Singh dated 11 November 2021 addressed to the appellant’s solicitor. The doctor had been asked to address the five criteria from Rose v Health Commission (NSW)[39] and Diab v NRMA Ltd[40] (see [41] below). The Member found that they had been answered “in a terse way, as if ticking off items on a checklist, and without regard to the need for the Commission to engage with the evidence”.[41]
[39] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[40] [2014] NSWWCCPD 72 (Diab).
[41] Reasons, [91].
The Member is also critical of Dr Singh’s opinion about ‘conservative treatment’ not working. The Member says: “there is no reference to his understanding of the treatment Mr Bui had undergone before he began to consult him”.[42]
[42] Reasons, [92].
The Member also said that Dr Singh’s “formulaic response” to the cost of the surgery failed to consider Mr Bui’s personal circumstances and did not compare it to pain management treatment. The Member also said that the doctor’s opinion about the reason for the surgery being an accepted mode of treatment was circular[43] by his reference to the spine surgeon community.
[43] Reasons, [96].
Dr Singh was criticised for his response to Dr Stephen’s reports, the Member saying that he did not engage with Dr Stephen’s opinion that surgery was only being offered because of the appellant’s subjective complaints. Additionally, the Member said that there was a failure to respond to Dr Stephen’s view about symptom focussing and magnification. Finally, the Member effectively dismisses Dr Singh’s opinion as being a series of bare ipse dixits.
The Member was not satisfied that the appellant had discharged his onus of proof by application of the tests set out in the authorities she had earlier referred to. An award for the respondent was entered.
The Certificate of Determination issued on 19 July 2022 records:
“The Commission determines:
1. Award for the respondent on the claim for s 60 expenses representing the cost of C4/5 and C5/6 anterior cervical discectomy and fusion recommended by Dr Singh.”

GROUNDS OF APPEAL

The grounds of appeal were modified in an amended submission dated 18 August 2022. It is that document which sets out the various grounds agitated by the appellant on appeal.
GROUND ONE: The Member erred in fact in making a finding that the appellant’s clinical history was not properly investigated by the treating specialist, Dr Bhisham Singh.
GROUND TWO: The member erred in fact by making a factual finding that the opinion of Dr Singh was a bare ipse dixit and did not consider the appellant’s own circumstances.
GROUND THREE: The Member erred in law in failing to provide sufficient reasons in rejecting the evidence of the treating specialist.
GROUND FOUR: The Member erred in fact in finding that Dr Singh did not consider the appellant’s psychological issues.
GROUND FIVE: The Member erred in fact in finding that not all conservative measures have in fact failed.
GROUND SIX: The member erred in law as to the test regarding whether treatment is reasonably necessary pursuant to Diab.

LEGISLATION

Section 60(1) of the 1987 Act provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

PRINCIPLES ON APPEAL

The respondent in this matter has filed no opposition to the appeal. Notwithstanding this approach, intervention on appeal depends upon the identification of error.[44] The appellant must establish that the Member was wrong. The fact that there is no contradictor to the appeal does not alter this statutory requirement for error to be established.
[44] Section 352 (5) of the 1998 Act, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [17]–[31].

Some principles about section 60 of the 1987 Act

This case involves an application for the payment of the costs of surgery, being a C4 to C6 decompression and fusion, pursuant to s 60 of the 1987 Act. This area of workers compensation law is well settled. In Rose Burke CCJ said the following:
“It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgement 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”.[45]
[45] Rose, 48A.
Burke CCJ’s remarks in Rose were extensively canvassed by Roche DP in Diab where, from [76] to [91], he reviewed the authorities and settled upon the approach to be taken in matters such as this. Of particular relevance to this appeal are the Deputy President’s remarks in Diab at [88], [89] and [90]:
“88. 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.
89. 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.
90. While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C).”
In Clampett v WorkCover Authority of NSW,[46] Grove J construed the phrase “reasonably necessary” in the following manner;
“22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Edn and ‘that cannot be dispensed with’ - Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit inquiry as to what may be thought reasonable in all of, or in any, particular circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of ‘necessary’.”
[46] [2003] NSWCA 52 (Clampett).

Some principles about the approach to expert evidence in the Commission

In this appeal, the appellant takes issue with how the Member construed the expert evidence, specifically giving little or no weight to the opinion of Dr Singh regarding the proposed surgery, which opinion the Member ultimately found was a “bare ipse dixit”.[47] This appeal will therefore involve a consideration of the Member’s approach to dealing with this expert evidence and whether it was affected by error. I set out below the principles associated with the approach to expert evidence in the Commission.
[47] Reasons, [98].
The starting point is the Commission’s Rules which deal specifically with the requirements for evidence in the Commission. Rule 73 of the Personal Injury Commission Rules 2021 provides as follows:
“73    Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a)     evidence should be logical and probative,
(b)     evidence should be relevant to the facts in issue and the issues in dispute,
(c)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)     unqualified opinions are unacceptable.”
The Commission is not bound by the rules of evidence.[48] Rule 73 is supplemented by Procedural Direction PIC4 – Expert Witness Evidence, made pursuant to s 21 of the 2020 Act, which sets out further requirements for an expert witness evidence in Commission proceedings.
[48] Section 43 of the 2020 Act.
The following authority is usually the starting point for the consideration of expert evidence in the Commission’s setting. In Hancock v East Coast Timber Products Pty Limited,[49] Beazley JA said as follows:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita^[[50]] to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell’s evidence in this case, so that is not the relevant error.”[51]
And:
“Although I have concluded that the two reports of 6 May 2008 were not deficient as found by his Honour, the question as to whether Dr Summersell’s satisfied the principle discussed above had to be determined by having regard to all of his reports. A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence: see the discussion in Rhoden v Wingate at [55]–[73]. In total, there were four reports of Dr Summersell, including the two reports dated 6 May 2008. A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law: see Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 per Hayne J at [130]. The question as to whether there was a scientific or intellectual basis for Dr Summersell’s opinion had to be determined by reference to all of his reports. It was not a determination that could be made by singling out an isolated part from the whole of that witness’s material before the Commission.”[52]
[49] [2011] NSWCA 11 (Hancock).
[50] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita).
[51] Hancock, [82]–[83].
[52] Hancock, [92].
In Paric v John Holland Constructions Pty Ltd,[53] Samuels JA in dealing with apparent discrepancies between the facts proven and hypothetical facts put to an expert said as follows:
“Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”[54]
[53] [1984] NSWLR 505 (Paric).
[54] Paric, 509–510.
To these authorities I would also add the following remarks regarding the approach to expert evidence in the Commission. The expert has to expose their path of reasoning in reaching their opinion. This reasoning then must have a connection to the view reached and the specialised knowledge said to be held by the expert.[55]
[55] Dasreef Pty Ltd v Hawchar [2011] HCA 21, [42] (Dasreef).
In Brambles Industries Ltd v Bell,[56] Hodgson JA said the following:
“The expertise of Dr Conrad, the particular field of his expertise, and the location of his opinion in that field, were and are not in question. The assumed facts on which his opinion was based were sufficiently identified. It is true that he did not elaborate on reasons why the MRI scan did not alter his previous opinion, and it may have been preferable if he had done so, at least to the extent of expressly saying that in his judgment the difference between what was shown in the 2003 CT scan and what was shown in the 2008 MRI scan was consistent with the natural progression of the 2003 injury; but in my opinion his omission to give that or some other explanation went only to the degree of weight to be given to the opinion, and did not have the consequence that his opinion was of no rational probative value.”[57]
[56] [2010] NSWCA 162 (Bell).
[57] Bell, [20].
In AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325[58] Hodgson JA said, “there must be material capable of rationally supporting a conclusion”,[59] and then:
“In this case, there plainly was some such material. There was Mr Hack’s evidence as to increased patronage, and Mr Wood’s evidence that this meant increased value in the order of five to ten per cent. Mr Wood did not back this up with any discussion of valuation principle or other reasoning, and this impacts on the weight and cogency of his evidence: [Makita]; ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 at [106]–[110]. However, Mr Wood was an expert valuer, and in my opinion his opinion was admissible; and although the weight of the evidence may be considered slight because of the lack of reasons, it was nevertheless material capable of rationally supporting a conclusion.”[60]
[58] [2008] NSWCA 325 (AMP Capital).
[59] AMP Capital, [40].
[60] AMP Capital, [42].
The Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd,[61] when discussing the relevant principles associated with the discharge of the burden of proof, said:
“The position may be summarised as follows:
(1)     A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”[62]
[61] [2008] NSWCA 246 (Nguyen).
[62] Nguyen, [55].
In Ngyuen McDougall JA also said that:
“the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists. And a number of pieces of evidence, considered together, may justify the drawing of an inference as to causation when none of them, considered individually, could do so.”[63]
[63] Nguyen, [61].
In South Western Sydney Area Health Service v Edmonds,[64] McColl JA found as follows:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in [Makita] (at [59]–[82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.
The Deputy President rejected the appellant’s challenge to the Arbitrator’s acceptance of Dr Rivett’s opinion on the basis that the relative weight and relevance of the expert evidence was a discretionary decision which could only be disturbed on House v The King principles. This was, in my view, an over-generalisation. There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”[65]
[64] 2007 NSWCA 16 (Edmonds).
[65] Edmonds, [130]–[132].

In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd,[66] a full bench of the Federal Court said the following about expert evidence:
“Many of the observations made by Dr Beaton were supported by reference to authority, as His Honour pointed out in his reasons. Further, we do not accept the proposition inherent in much of what the appellants have said, that every opinion in an expert’s report must be supported by reference to an appropriate authority. Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic. … It cannot be sensibly suggested that an expert should offer chapter and verse in support of every opinion against the mere possibility that it may be challenged.”[67]
[66] [2002] FCAFC 157 (Red Bull).
[67] Red Bull, [89].
Finally, I make reference to the remarks of Allsop P in Sutton where His Honour said the following:
“… when one is considering the probative value of an expert report … the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.
The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost. Thus, if a person has given a history to a doctor which is incorporated as an assumption for the doctor’s opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted upon by the Commission in accepting the doctor’s opinion.”[68]
[68] Sutton, [3]–[4].
I would also this make additional observation about Sutton. In that matter, Allsop P was dealing with the former Workers Compensation Commission’s rule on expert evidence, r 15.2, the predecessor to the current r 73. Both are by and large in the same terms and Allsop P said that “[i]t suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence.”[69] These remarks therefore continue to have application to the operation of the new r 73 under the auspices of this Commission, which is the statutory successor to the Workers Compensation Commission.
[69] Sutton, [3].
The Commission itself operates under the statutory mandate of its objects (s 3 of the 2020 Act) to resolve the “real issues in proceedings justly, quickly and cost effectively with as little formality as possible”, its guiding principle (s 42 of the 2020 Act) and its procedure (s 43 of the 2020 Act). The procedure provided for in s 43 of the 2020 Act requires the Commission to act with as little formality and technicality as the proper consideration of the matter permits and excludes the rules of evidence.
Drawing all of these matters together reveals the following approach to dealing with expert evidence in the Commission:
(a)    Evidence must be logical and probative, evidence based on speculation and unsubstantiated assumptions is not acceptable.[70]
[70] Rule 73 of the Personal Injury Commission Rules 2021; Edmonds.
(b) Rule 73 does not reintroduce the rules of evidence.[71]
[71] Section 43(2) of the 2020 Act; Sutton.
(c)    An expert’s report will need to conform, in a sufficiently satisfactory way, with common law standards for admissibility.[72]
[72] Hancock; Edmonds.
(d)    Strict compliance with every feature referred to in Makita is not required.[73]
[73] Hancock.
(e)    The question of the acceptability of expert evidence will not be one of admissibility but of weight.[74]
[74] Hancock; Sutton; Bell.
(f)    The expert’s evidence should be determined by reference to all the expert’s reports.[75]
[75] Hancock.
(g)    An expert’s bare ipse dixit will usually carry little weight.[76]
(h)    As a corollary to points (a) and (g) above, the expert must expose their path of reasoning in reaching their opinion. That reasoning must relate to the opinion and the expert’s specialised knowledge.[77]
(i)    Not every expert opinion needs to be supported by reference to appropriate authority nor does the expert have to “offer chapter and verse in support of every opinion”.[78]
(j)    It is the task of the tribunal of fact to assess the evidence and reach a view as to whether the opinion, even in the face of discrepancies, was given in a ‘fair climate’ such that it can be acted upon.[79]
(k)    The Commission must be satisfied that the expert evidence provides a satisfactory basis upon which the Commission can make its findings.[80]
(l)    The failure to explain an opinion or a lack of reasoning may reduce the weight to be accorded to an opinion, but even so it may be still capable of supporting a conclusion or having probative value.[81]
(m)     The fact-finder needs to feel an actual persuasion of the existence of a state of affairs.[82]
(n)    Inferences may be drawn from all of the evidence in a case, including expert evidence.[83]

DISCUSSION

[76] Edmonds; Rule 73 of the Personal Injury Commission Rules 2021.

[77] Dasreef.

[78] Red Bull.

[79] Paric.

[80] Hancock; Sutton.

[81] Bell; AMP Capital.

[82] Nguyen.

[83] Nguyen.

As to Ground One

The appellant refers to three passages from the Member’s reasons as constituting the errors contested in this ground, namely paragraphs [84], [87] and [92]. These paragraphs read as follows:
“84. When Mr Bui began to consult Dr Lim, he saw three different specialists who treated three aspects of his injury. He saw Dr Soo in respect of his left shoulder and Dr Singh in respect of his neck. The reports of those doctors deal only with the injury they were treating and there is no evidence of any attempt by any of the treating practitioners to view Mr Bui’s case holistically or to consider the implications of and relationship between a left shoulder injury treated by Dr Soo and the left sided radicular pain noted by Dr Singh.”
“87. The argument that the surgery is reasonably necessary is supported by Dr Singh’s reports. He relied on an MRI scan taken on 12 September 2020 and the results of diagnostic injections to recommend surgery. He did not say that he had considered and contrasted the previous scan. There is no consideration of Mr Bui’s other conditions resulting from the injury in his reports and it is not possible to discern that he has considered the history as a whole since Mr Bui’s injury. Dr Singh did not engage with the history of Mr Bui’s condition generally or the history of treatment of his cervical spine in such a way as to provide a proper basis for his opinion in the way described in Sutton.”
“92. With respect to the appropriateness of the treatment, Dr Singh relied on the failure of Mr Bui to respond to conservative treatment but there is no reference to his understanding of the treatment Mr Bui had undergone before he began to consult him. Dr Singh did not say that he had considered Mr Bui’s psychological condition or his left shoulder condition in recommending surgery. That is important where the major complaint was referred pain with minimal motor findings.”
The appellant submits that the Member misdirected herself by focusing on the treatment the appellant received with Dr Singh between 1 September 2020 and 19 October 2021, when the earlier treatment with Dr Herald needed to be considered. The appellant points to a number of clinical entries from 16 August 2020 until 19 October 2021[84] as proving that Dr Singh’s opinion was given in a ‘fair climate’ as contemplated in Paric.
[84] Appellant’s amended submissions dated 18 August 2022, [15].

Consideration

All six grounds of appeal take issue with how the Member dealt with the evidence of Dr Singh. It is therefore necessary, at the outset, to review the doctor’s series of reports in some detail. Dr Singh is an orthopaedic and spine surgeon who is the appellant’s treating specialist. No issue has been taken with respect to his expertise.
Dr Singh’s evidence fits into two categories. The first is correspondence with the appellant’s general practitioner, Dr Lim. In these letters dated 1 September 2020,[85] 15 September 2020,[86] 19 January 2021[87] and 27 October 2021,[88] the doctor is describing his ongoing consultations with the appellant, his findings and the results of treatment and diagnostic studies which have been completed. He also informs the GP of his recommendation for surgical intervention. The second category is Dr Singh’s reports produced for the purposes of gaining the insurer’s approval for the proposed surgery. This includes a report dated 11 November 2021[89] and a quote or estimate of the cost of the proposed surgery.[90]
[85] ARD, pp 43–44.
[86] ARD, p 45.
[87] ARD, p 46.
[88] AALD dated 15 June 2022, p 1.
[89] ARD, p 47.
[90] ARD, p 282.
Dr Singh’s letter to Dr Lim of 1 September 2020 briefly describes the appellant’s history of injury at work before recording the appellant’s symptoms of neck pain going down into the shoulders. The doctor is aware of but does not have access to a 2019 MRI scan and arranges updated imaging of his cervical spine.
The next letter of 15 September 2020 records the results of the updated MRI scan, which reveals disc bulging at C4/5 and C5/6. The doctor says this is likely responsible for his periscapular and shoulder pain as well as neck pain. The doctor says he can trial injections at C4/5.
The following letter to Dr Lim is dated 19 January 2021. He describes the results of the C4/5 injection and reviews the MRI scan of the cervical spine, noting the main pathology is at C4/5 and recommends that the appellant consider surgery at the level.
Finally, Dr Singh writes to the GP on 27 October 2021. This is a more detailed piece of correspondence listing the history of heavy work, the frank injury and symptoms thereafter. The doctor then links these symptoms to his observations of the pathology seen on the MRI scan. Dr Singh records his findings on examination, stating the appellant has signs of C6 radiculopathy in addition to C5 radicular symptoms. The doctor noted the positive response to the injection in the cervical spine, saying this was of “diagnostic importance.”[91] He described the appellant had “pain with paraesthesia in the C6 distribution, but not a great deal of motor weakness. Reflexes are depressed in the left arm.”[92] The doctor continues, saying:
“He has trialled conservative treatment for more than two years, and this has not succeeded in giving him sustained relief. He has trialled injection to the cervical spine which had short-term benefit.
Treatment options for his condition are pain management, analgesics, physiotherapy, and surgery. Given the fact that he has not responded to conservative treatment, surgery is reasonably necessary.
Surgery is the appropriate method of treatment for his condition which has not responded to conservative management. The aim of surgery is to relieve the neurological compression to the exiting nerve roots, and stabilise the motion segments causing him pain and stiffness in the neck.”[93]
[91] AALD dated 15 June 2022, p 2.
[92] AALD dated 15 June 2022, p 2.
[93] AALD dated 15 June 2022, p 2.
As is plainly evident from a review of the correspondence from Dr Singh to Dr Lim, the focus was on the treatment of the appellant’s condition.
The second category of report from Dr Singh is essentially the single document dated 11 November 2021 addressed to the appellant’s solicitors. This report refers to the history, the doctor’s findings upon examination, the results of the MRI scan and the temporary relief experienced by the appellant after the cervical injection. In particular, the doctor notes “[h]e was taken to Liverpool Hospital, had a scan, and since his injury he has ongoing symptoms of neck pain, neck stiffness and radiation of pain down the left arm”.[94] The doctor notes that the appellant has had two years of conservative treatment without gaining sustained relief from pain and recommends surgical intervention. The doctor answers as follows to questions posed by the appellant’s solicitor:
[94] ARD, p 48.
“6.     In relation to the issue as to whether the need for surgery ‘results from’ the accident on 3 April 2019, could you kindly provide your opinion in relation to the following:
The need for cervical spine surgery is related to the injury sustained when he fell down when an aluminium frame fell off the tines of a forklift.
a) What is the pathology that the surgery is seeking to address.
He has disc bulging and neurological impingement at C5/6 and C4/5.
b) Explain the pathological process which occurred following the accident on 3 April 2019 which requires my client to undergo the surgery recommended.
The injury at the time likely disrupted the motion segment integrity of the cervical spine at C4/5, and since then there has been progression of similar motion segment integrity loss at C5/6.
7.      In relation to whether the C4/5 Anterior Cervical Decompression and Fusion procedure is reasonably necessary, could you kindly provide your opinion in relation to the following matters:
Treatment options for his condition are pain management, analgesics, physiotherapy, and surgery. Given the fact that he has not responded to conservative treatment, surgery is reasonably necessary.
a) How the proposed treatment with assist my client with the management of their work-related injury.
Surgery is the appropriate method of treatment for his condition which has not responded to conservative management. Surgery will improve his neck and arm pain, and his function.
b) Explain what potential benefits the procedure would have for my client.
The aim of surgery is to relieve the neurological compression to the exiting nerve roots, and stabilise the motion segments that are causing him pain and stiffness in the neck.
c) Any other comments you wish to provide. If you already haven’t, could you kindly consider the following factors:
i. The appropriateness of the particular treatment.
Surgery is the appropriate method of treatment in this condition which has failed to respond to conservative treatment, and is the accepted mode of treatment among the community of spine surgeons.
ii. The availability of alternative treatment.
Further conservative treatment is unlikely to give him benefit. The nonsurgical alternative therefore is to accept permanent functional incapacity, and trial chronic pain management
iii. The cost of the treatment.
The cost of the treatment is commensurate with the gazetted rates, but is certainly offered [sic] by the improvement of pain and function and the ability to return to the workforce.
iv. The actual or potential effectiveness of the treatment.
Surgical treatment is effective in relieving the neurological compression and stabilising the cervical spine
v. The acceptance of the treatment by medical experts.
Surgery is the accepted mode of treatment among the practising spine surgeon community.
8.      Could you kindly comment on Dr John Stephen’s opinion. In particular, could you kindly comment on the following opinions:
These comments are not applicable.
a) I have no recommendations as to treatment. The reason for this is that he has been refractory to all forms of treatment in the past and this is largely because of symptom focusing and symptom magnification.
Dr Stephen has made no recommendation for treatment, because he feels that the patient has been refractory to all forms of treatment so far. In my opinion the reason for failure of conservative treatment is that he needs surgical treatment for the structural pathology in the cervical spine and not because of symptoms focusing and symptom magnification.
b) In my opinion, there is no indication for this operation, which is strongly contraindicated, which will not improve Mr Bui, and which is on the basis of a Teleconference.
Dr Stephen feels that is no indication for this operation and that surgery is contraindicated. I disagree with this opinion. I have reviewed the patient clinically, and in my expert opinion this gentleman will benefit from cervical spine surgery.”[95]
[95] ARD, pp 48–50.
The Member’s criticism of Dr Singh does in large part relate to what the Member considers is the doctor’s lack of knowledge about the history of the appellant’s prior treatment and condition generally, including his shoulder and psychological conditions. Indeed, in the three paragraphs of the reasons impugned in this ground, reasons [84], [87] and [92], the Member is at pains to find fault or omissions with the doctor’s opinion. At reasons [87] the Member says that all the doctor took into account was the MRI scan of 12 September 2020 and the relief given after receiving injections. Pausing here, this is not an accurate reflection of what the doctor considered. As I have set out in some detail above, the doctor took the history from the appellant and physically examined him. The doctor is clearly aware that the appellant has had ‘conservative’, i.e., non-surgical, treatment. In this same paragraph [87], the Member is critical of the doctor when she said: “He did not say that he had considered and contrasted the previous scan.” Hodgson JA dealt with a similar situation in Bell, which I have described above at [49]. This, his Honour says, is a matter of weight only and does not have the consequence of rendering the opinion to have no probative value.
On examination on 11 November 2021, the doctor found signs at C6 suggestive of radiculopathy in addition to C5 radicular symptoms.
I now refer to the appellant’s evidence. The appellant said this, and no issue was taken by the respondent to this statement:
“29. I want to do anything to help me with my pain. I have tried medications, injections, physiotherapy and hydrotherapy.
30. I continue to have significant pain in my neck that goes down both shoulders.
31. I have constant pain in my neck. It radiates down my left shoulder and left arm into my 4 fingers, mostly the index finger.”[96]
This account is consistent with what Dr Singh has recorded at various sections of his letters to Dr Lim and his report to the solicitors.
[96] ARD, p 8.
Applying the various authorities, which I have set out above in relation to the approach to expert evidence in the Commission, would reveal that the Member was in error in terms of her approach to Dr Singh and for the purposes of the Member’s criticism of the doctor not properly investigating the appellant’s clinical history. The doctor is not obliged to offer “chapter and verse” to support every opinion,[97] all that is needed is that the expert evidence provides a satisfactory basis for the Commission to make its findings.[98] Inferences may be drawn from all the evidence in the case including expert evidence. The failure to examine the earlier MRI scan goes to weight, not to completely discounting the probative value of the report.[99] In this case whilst the doctor had not referenced or set out the treatment history in detail, this history was otherwise available from the appellant’s evidence and that of his other treating doctors. A fair reading of Dr Singh’s letters and report clearly reveals that he was generally aware of the earlier treatment efforts even though he did not record them in terms. I do not accept that the Member’s criticism of the doctor’s knowledge of the appellant’s treatment history was factually inaccurate or that not viewing the earlier MRI scan was determinative. To the extent that this factual finding, adverse to Dr Singh’s opinion, was made to accord his opinion little or no weight, the Member was in error.
[97] Red Bull.
[98] Hancock; Sutton.
[99] Bell.
Ground One has been established.

As to Ground Two

The appellant in this ground challenges the Member’s finding that Dr Singh’s opinion is a bare ipse dixit. The appellant refers to reasons [95], which reads as follows:
“His statement about the potential effectiveness of the treatment was general. He did not set out his opinion by reference to Mr Bui’s own circumstances. His reference in the report dated 11 November 2021 to the ability to return to the workforce does not appear in the report to Dr Lim dated 19 October 2021.”

As is evident there is no finding in reasons [95] that Dr Singh’s opinion is a bare ipse dixit, this finding can be found at reasons [98], which, for the sake of completeness, I set out here:
“Dr Singh’s report is repetitive and defensive. He has not explained his opinion in detail and not provided the information required for the Commission to come to a soundly based decision. Many of his statements can be described as ‘bare ipse dixits’.”
Reasons [98] is the end point of the Member’s reasoning regarding Dr Singh’s opinion which commenced at reasons [87]. Earlier in the decision, the Member summarised Dr Singh’s findings and opinions in some detail between reasons [40] and [53], which is the section of the decision dedicated to Dr Singh.
The appellant points to various details in Dr Singh’s report dated 11 November 2021,[100] referring to the history the doctor recorded, complaints made by the appellant, findings on examination and the doctor’s ultimate diagnosis and indicated treatment. The appellant says that this was given insufficient weight by the Member, relying on Makita and Sutton,[101] in supporting a submission that the doctor did express his opinion on the basis of necessary facts. The appellant has highlighted the following extract from Makita:
“If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material”.[102]
[100] ARD, p 47.
[101] The appellant had, earlier in his submissions with respect to Ground One, referred to these two cases in his amended appeal submissions dated 18 August 2022 at [17]–[18]. I assume that these are the passages referred to in this ground.
[102] Makita, [64].

Consideration

A problem with the Member’s finding at reasons [98] that “[m]any of [Dr Singh’s] statements can be described as ‘bare ipse dixits’” is that it is not apparent which ‘statements’ are being referred to by the Member and thus presumably being dismissed or given little weight. Dr Singh had treated the appellant, he had examined him, he recommended further MRI scans and reviewed the results. Dr Singh was aware of the temporary relief experienced after the cervical injection. The doctor understood that conservative treatment had been tried for two years without producing any appreciable pain relief. I have set out above in the Evidence section of this decision a description of the treatment undertaken by the appellant during that period, so Dr Singh was correct in noting that treatment had been undertaken. Granted he did not spell it out in detail, but that is not his obligation.[103] This apparent deficiency can be made good by other evidence.[104] The essence of the doctor’s opinion was that conservative measures had not worked, hence the need for surgery. But to be fair to Dr Singh, his opinion was not based on this alone, he had examined the appellant and his clinical findings I have recorded above. He had an MRI scan undertaken and noted the injection results, which he found to be of “diagnostic importance”. The doctor’s opinion would have been stronger had he spelt out the treatment history in more detail but that does not mean that it can be discounted entirely.
[103] Red Bull.
[104] Hancock, [92].
The doctor’s path of reason in arriving at his recommendation for surgical intervention can be readily understood once one considers the entirety of the doctor’s material and the other reports and records which detail the prior treatment. I do not consider that a fair reading of Dr Singh’s opinions would enable the Member to dismiss them as bare ipse dixits. But as I said above, it is not clear which opinion or aspect of the doctor’s material that this criticism is directed to. To the extent this finding was made to either dismiss the doctor’s opinion supporting surgical intervention entirely or to give it little weight, this finding was made in error. The Member was obliged to engage with the entirety of the doctor’s opinion.
Ground Two has been established.

As to Ground Three

The appellant refers to reasons [97] which reads as follows:
“Even when responding directly to Dr Stephen’s reports, Dr Singh merely repeated his statement about the failure of conservative treatment and said that surgery was necessary in his ‘expert opinion’. He did not engage with Dr Stephen’s comments about voluntary restriction of movement nor with his opinion that the surgery was offered because of Mr Bui’s subjective complaints of pain. He did not engage with Dr Stephen’s reading of the radiology. He denied that the failure of conservative treatment was related to symptom focusing and magnification without saying that he had considered the psychological issues.”
The appellant complains that the Member has not given adequate reasons as to why she preferred Dr Stephen’s findings on examination and his reading of the radiology over that of Dr Singh. The appellant notes that both doctors are orthopaedic surgeons.

Consideration

The first matter to record in dealing with this ground is this – at no point in her decision did the Member express, in terms, that she preferred the opinion of Dr Stephen over that of Dr Singh. This finding was simply not made.
This is a critical issue in the circumstances of this case. On the appellant’s side, Dr Singh’s opinion was strongly in favour of the recommended surgery. For the respondent, Dr Stephen was of the contrary opinion. This was the crux of the contest between the parties that had to be resolved. Reading the decision as a whole and in light of the result, one can readily draw the conclusion that Dr Stephen’s evidence was preferred by the Member. The only problem is that it is not apparent from a reading of the decision why this was the case.
In The Nominal Defendant v Kostic[105] Ipp JA said: “Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his or her findings as to how he or she comes to accept one over the other.” The extent of the duty to give reasons varies depending upon the circumstances of the individual.[106]
[105] [2007] NSWCA 14, [59].
[106] Mifsud v Campbell (1991) 21 NSWLR 725, 728 per Samuels JA (Clarke JA and Hope AJA agreeing).
In terms of the duty applying to conflicting expert evidence, the following is the case. In Sant v Tsoutsas,[107] Bell JA said as follows:
“It is not necessary to re-state the principles governing the obligation to give reasons with respect to conflicting expert evidence. They are collected in the judgment of Ipp JA (Bryson JA and Stein AJA agreeing) in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 at 135–138 [56]–[68] (Wiki). It is sufficient to note the obligation to engage with the evidence and to explain why the evidence of one expert is preferred over that of another.”[108]
[107] [2009] NSWCA 3 (Sant).
[108] Sant, [77].
In the dispositive sections of the Member’s Reasons dealing with Dr Singh,[109] the Member deals principally with the issues or problems she has identified with Dr Singh’s opinions, sometimes deploying remarks or opinions from Dr Stephen to support this assessment.[110]
[109] See reasons, [87]–[100].
[110] See in particular reasons, [90], [97].
I would also make this remark about reasons [97]. I have extracted this paragraph in full at [81] above. The Member has put the phrase ‘expert opinion’ in inverted commas in this paragraph, which is at the very least an indication that the Member doubts the doctor’s expertise. I would note that no issue was ever taken that Dr Singh was not an appropriately qualified expert to give an opinion on the proposed surgery. Whilst the Member did not reject Dr Singh’s evidence due to a want of expertise, this pejorative use of inverted commas in relation to the doctor’s expertise suggests that the Member did not accept the doctor’s expertise to give an opinion. The Member was not entitled to do this.
The Member has not explained why Dr Stephen’s opinion was preferred as the extract from Sant (above, citing Wiki) requires. This is an error. If this was because she did not accept Dr Singh’s expertise (and this is not explained) this is an error as his expertise had not been challenged. The Member’s duty was to provide a reasoned analysis as to why one doctor’s opinion was preferred over the other and this has not been done.
Ground Three has been established.

As to Grounds Four, Five and Six

In light of the establishment of Grounds One, Two and Three, the Certificate of Determination will be revoked. It is not necessary for the disposition of this appeal that I consider the remaining Grounds Four, Five and Six.
In terms of the Member’s approach to the expert evidence, the Member has imposed a standard in terms of what she expected from Dr Singh which is not consistent with the approach to expert evidence in the Commission. I have at some length earlier in this decision set out all of the matters that need to be considered when dealing with expert evidence in an environment where the rules of evidence do not apply.

DECISION

The Certificate of Determination dated 19 July 2022 is revoked.

REDETERMINATION

The power of a Presidential Member to redetermine a matter is found in s 353(6A) of the 1998 Act and has been described in the following terms by the Court of Appeal. In Chubb Security Australia Pty Ltd v Trevarrow,[111] Santow JA said as follows:
“Whether the Presidential member revokes and substitutes a decision or remits the matter to an Arbitrator is a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing fair, cost effective and timely means of resolving workers compensation claims.”[112]
[111] [2004] NSWCA 344 (Trevarrow).
[112] Trevarrow, [28].
Whilst Trevarrow was decided under the former Workers Compensation Commission, those comments continue to apply to this Commission. The statutory mandate of the 2020 Act requires “the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”[113] and that decisions are “timely”.[114] These objects are supported by the “guiding principle” in s 42(1) of the 2020 Act.
[113] Section 3(c) of the 2020 Act.
[114] Section 3(d) of the 2020 Act.
The appellant has sought orders inter alia that the appeal be allowed, and the Member’s award be substituted for an award in favour of the recommended surgery. The respondent has not opposed this.
Having found error in the Member’s reasoning and applying the above principles to the present matter means that I will redetermine the question of whether the respondent is obliged to pay for the appellant’s proposed surgery as recommended by Dr Singh. I am in as good a position as the Member was to decide this question, the issue is confined and does not require oral evidence or involve any credit issues. I would also note that while this appeal has not been contested by the respondent, I will have careful regard to the respondent’s evidence and submissions that were made to the Member. Bearing in mind the relatively modest value of the proposed C4-6 cervical decompression and fusion surgery, quoted in November 2021 to be $22,349.30,[115] redetermining this matter is in conformity with the guiding principle of the 2020 Act and in particular s 42(4).
[115] ARD, p 282.
As is usually the case in s 60 claims, whether proposed medical treatment is ‘reasonably necessary’ will depend heavily upon the expert medical evidence. In this case the contested evidence is that of the two orthopaedic surgeons, Dr Singh, the treating specialist, and Dr Stephen, the specialist qualified by the respondent. I have outlined the evidence from both doctors (above) in deciding the appeal. I will not repeat that detail but will refer to salient parts of it in reaching my decision on this redetermination.
Both doctors had taken similar histories of the appellant’s previous treatment. Dr Singh said he has “trialled conservative treatment “[116] and later described this as pain management, analgesics and physiotherapy.[117] The doctor also noted the relief the appellant experienced from a cervical injection. Dr Stephen took a history of pain relief after the injection[118] before describing the medication the appellant was taking and the fact that he had undertaken physiotherapy and hydrotherapy.[119] The knowledge both doctors had of prior treatment is described in very similar terms. It is not described in great detail but both doctors had sufficient and accurate awareness of the treatment the appellant had been given.
[116] ARD, p 48.
[117] ARD, p 49.
[118] Reply, p 55.
[119] Reply, p 56.
Dr Stephen conducted a physical examination on 11 May 2021 and noted his findings.[120] At the time, Dr Stephen noted, quite rightly, that Dr Singh had not physically examined the appellant. This was true at that point, but Dr Singh did see the appellant in person on 19 October 2021, which of course is after Dr Stephen’s consultation. Dr Stephen also viewed the various investigatory studies, x-rays, MRI and CT scans and commented upon them.[121]
[120] Reply, pp 56–57.
[121] Reply, p 57.
Dr Singh in his report of 11 November 2021[122] also notes his findings on physical examination and describes his view of the MRI scan of the appellant’s neck. Dr Singh says the pathology he observed was disc bulging and neurological impingement at C5/6 and C4/5.[123]
[122] ARD, p 47.
[123] ARD, p 48.
In my view, both specialists are in very similar positions to give their opinions given the history they both had, the investigations both had access to and the opportunity to physically examine the appellant. Both have the relevant expertise to provide an opinion on this matter.
However, their opinions as to the surgery are diametrically opposed. Dr Stephen says surgery is not appropriate as the appellant had suffered “non-specific soft tissue damage to the neck”. Dr Stephen considered that the appellant was in a situation of “symptom focussing” and “symptom magnification” and had been “refractory to all forms of treatment, both physical and psychiatric.”[124] Dr Stephen postulates that resolution of the appellant’s pain will not occur and had no recommendation for treatment.[125] Dr Stephen says surgery will not improve the appellant.[126] Finally, Dr Stephen posits the view that the request for surgery is based upon the appellant’s complaints.[127] Tellingly, Dr Stephen declares that “[w]hat is clear is that conservative treatment, both physical and psychiatric has failed.” The doctor then says that “operative treatment is doomed to fail.”[128]
[124] Reply, p 57.
[125] Reply, p 59.
[126] Reply, p 60.
[127] AALD dated 21 April 2022, p 5, [2].
[128] AALD dated 21 April 2022, p 6, [4].
Dr Singh says surgery is indicated for the following reason: “The aim of surgery is to relieve the neurological compression to the exiting nerve roots and stabilise the motion segments that are causing him pain and stiffness in the neck”.[129] His response to Dr Stephen’s opinion is that the appellant had been ‘refractory’ to all forms of treatment because conservative treatment had not served to alleviate the neck pain the appellant was experiencing. Dr Singh opines that surgery will relieve the neurological compression and stabilise the cervical spine.[130]
[129] ARD, p 49, [7(b)].
[130] ARD, pp 49–50.
As I have stated above, it is the appellant’s earnest desire to have the surgery.[131]
[131] ARD, p 8, [29]–[38].
I have outlined above the authorities dealing with s 60 claims, principally they are Rose, Diab and Clampett. There are others but the principles arising from these cases are the relevant principles to be brought to bear in such cases. The essential question is whether the surgery is ‘reasonably necessary’.[132]
[132] See Diab, [90].
The dispute between the doctors about whether the proposed surgery is likely to be effective is not determinative.[133] It is trite to say that every surgical intervention entails risk of varying degrees.
[133] Diab, [89].
There has been no issue raised by the respondent about the proposed cost of the procedure. The history shows that the appellant has undertaken a range of medical treatments, none of which have been effective in reducing his pain and disability. Indeed, Dr Stephen declares that conservative treatment has “failed”. Whilst the doctors’ opinions diverge as to why that is so, neither doctor doubts the pain the appellant is experiencing.
In terms of alternative treatment, Dr Stephen offers no suggestion as to further treatment.[134] The only treatment being recommended is the cervical surgery which Dr Singh says in very general terms is the “accepted mode of treatment among the community of spine surgeons”.[135] In the circumstances of this case, that surgery is the only alternative treatment available on the evidence. The Diab factors point to the surgery being reasonably necessary.
[134] AALD dated 21 April 2022, p 6.
[135] ARD, p 49, [7(c)(i), (v)].
In terms of the expert opinion proffered by Dr Singh, I am of the view that it does offer a satisfactory basis (in the Sutton and Hancock sense) for the Commission to give it weight. Notwithstanding some of the issues identified by the Member, I am satisfied that Dr Singh’s opinion was made in a fair climate as contemplated by Paric. There is also a definable path of reasoning sitting behind Dr Singh’s opinion as to why surgery is recommended for the appellant.
I prefer Dr Singh’s opinion to that of Dr Stephen for these reasons. Dr Stephen simply states that surgery will fail without explaining why that is the case. He says in a number of places that the appellant has been ‘refractory’ to all forms of treatment. Refractory means resistant to treatment or cure. It is true that in relation to the treatment modalities that have thus far been employed, this is an apt description of the situation. However, the doctor has not explained why this would be the case with the proposed surgery, rather it is stated as if a self-evident fact. I consequently do not accord much weight to this unexplained statement. In distinct contrast, Dr Singh says that the surgery will relieve the neurological compression and stabilise the motion segments that are causing the appellant pain.[136]
[136] ARD, p 49.
Mindful of the words of Burke CCJ in Rose I have extracted above, I find that the proposed surgery is reasonably necessary. The appellant has tried a great deal of conservative treatment which has failed. He continues to experience debilitating pain, that he has described, and which is having an adverse psychological effect upon him. The only treatment recommended by any specialist in this case is the proposed cervical surgery. This surgery may or may not be effective but, as the authorities state, this is not determinative. This treatment should not be forborne by the appellant.

ORDERS

There will be an award in favour of the appellant for the cost of the C4-6 Anterior Cervical Decompression and Fusion recommended by Dr Singh. The respondent is to pay the reasonable cost of this surgery as particularised by the appellant.

Judge Phillips
PRESIDENT

16 August 2023