Burwood Council v Scott - [2024] NSWPICPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Burwood Council v Scott [2024] NSWPICPD 8
APPELLANT:	Burwood Council
RESPONDENT:	Craig Scott
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-W4018/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	7 February 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted in respect of Grounds Nos. 1, 2, 5 and 6 of the Grounds of Appeal. 2. Leave to appeal is refused in respect of Grounds Nos. 3 and 4 of the Grounds of Appeal. 3. The Senior Member’s Certificate of Determination dated 24 February 2023 is confirmed. 4. The matter is remitted to the Senior Member to deal with the outstanding issues regarding quantification of the worker’s weekly entitlement.
CATCHWORDS:	WORKERS COMPENSATION – leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act; the scope of an appeal pursuant to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; whether injury consists in the aggravation of a ‘disease’ – application of Rail Services Australia v Dimovski [2004] NSWCA 267, s 60 of the Workers Compensation Act 1987 – application of Diab v NRMA Ltd [2014] NSWWCCPD 72; obligation to give reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr A Coombes, counsel
Bartier Perry Lawyers
Respondent:
Mr J McEnaney, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	24 February 2023

INTRODUCTION AND BACKGROUND

Craig Scott (the worker) was employed by Burwood Council (the Council/respondent) as a swimming instructor. He alleged that he suffered injury to his lumbar spine on 28 February 2020 when he tripped on an underwater platform while instructing a student in the course of his employment. His claim for workers compensation was rejected in dispute notices dated 25 June 2020, 24 August 2020 and 11 December 2020, in which the Council disputed that he had suffered injury. The worker commenced proceedings by way of an Application to Resolve a Dispute dated 28 June 2022 (the ARD). He claimed weekly benefits from 28 February 2020 on a continuing basis together with the estimated cost of spinal decompression surgery.[1]
[1] Certificate of Determination and Statement of Reasons dated 24 February 2023, Scott v Burwood Council [2023] NSWPIC 72 (the reasons), [1]–[17].
Previous proceedings were commenced by the worker and discontinued (No. 7439/20 discontinued on 15 April 2021, No. W4005/21 discontinued on 15 November 2021, No. W1008/22 discontinued on 19 May 2022). The current proceedings were listed for hearing on 3 February 2023. Mr McEnaney, barrister, appeared for the worker and Mr Coombes, barrister, appeared for the Council. The Council said the incident in the pool was conceded but not the date on which it occurred. The Council described the primary issue as one of causation. It also disputed that surgery was reasonably necessary and disputed the worker’s pre-injury average weekly earnings (PIAWE).[2] The Council indicated it did not persevere with a previously indicated intention to seek leave to cross-examine the worker.[3] Both counsel addressed and the Senior Member reserved her decision.
[2] Transcript of hearing, 3/2/21 (T), T 2.14–29, 3.13–19.
[3] T 2.32–34, reasons, [19].
The Commission issued a Certificate of Determination accompanied by the reasons on 24 February 2023. The Senior Member made an ongoing award for weekly compensation from 4 March 2020 pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). She ordered the Council to pay the costs of spinal decompression surgery as recommended by Dr Siu pursuant to s 60(5) of the 1987 Act. She put a timetable in place for submissions regarding the worker’s PIAWE in the event the parties were unable to reach agreement.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 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 and WC3; 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.

THE SENIOR MEMBER’S REASONS

The Senior Member summarised the worker’s statement dated 17 July 2020, made to an investigator retained by StateCover (the Council’s insurer).[4] The worker said that his shift started at 3.15 pm on 28 February 2020 and the incident occurred between 4 and 5.30 pm on that day. He fell backwards over the step and went under the water, his low back hit the bottom of the pool. He felt pins and needles going from his back to his toes when he finished teaching. He reported the injury to Dan Pocaterra at 7 pm after the shift. He worked on 2 March 2020 and was told that Mr Pocaterra had not reported the incident. Luke was also in the office at the time of this conversation. The worker said he could hardly walk and had leg pain. He stopped work after this. On 3 March 2020 the worker attended a chiropractor and was given a medical certificate for some days to cover the period until he could get an appointment to see his GP. On 9 March 2020 the worker saw his GP, Dr Cameron, who referred him for a CT scan and then he was referred to Dr Siu, neurosurgeon, who he saw straight after the CT scan. He was sent for a cortisone injection.
[4] Reasons, [31]–[57].
The Senior Member referred to the worker’s statement dated 15 December 2020, which commented on statements from the Council’s witnesses. The worker stated that Dr Siu recommended spinal fusion, which the worker wanted to undergo.[5] The Senior Member referred to the worker’s statement dated 13 December 2021.[6] It referred to some previous medical attendances noted in the medical records. Some of these the worker said he could not recall. In relation to others, the worker said that he may have undergone physiotherapy and taken medication but did not need time off work and his problems were not serious. There was a reference to a “minor motor vehicle accident” in April 2014, the worker said there was no back injury or time off work, his symptoms settled “after a few days”. The worker said there had been some back pain prior to the work accident from being overweight but there were no ongoing restrictions. After the work accident his back pain became “significantly worse”, he was unable to continue working, it was “much more severe”.[7] The worker said he did “not mention his previous back pain to the medical assessors because he did not think it was relevant or serious”.[8]
[5] Reasons, [63].
[6] Reasons, [64].
[7] Reasons, [71]–[75].
[8] Reasons, [77].
The Senior Member referred to the worker’s statement dated 8 June 2022. There was a suggestion the worker had worked for Santa Sabina College approximately one month after his injury and not disclosed it. The worker denied working for Santa Sabina at that time and said entries in the school’s records and payslips were “in error”. The worker said he did not work on 29 February and 1 March 2020 (the weekend). He worked with discomfort at the Enfield Swimming Centre on 2 March 2020. He attempted to work on 3 March 2020 “at Santa Sabina but the pain became unbearable”, his father picked him up, took him to a chiropractor and he did not work thereafter. The Senior Member said the worker provided an explanation for the Santa Sabina payslips which was supported by Ms Bruzzese, who lodged his timesheets. The Senior Member said the Council accepted that the worker’s last day of work was 3 March 2020. The Senior Member referred to a statement of Ms Bruzzese, the head coach at Santa Sabina, which confirmed this situation and also attached copies of a confirmatory email and payslips.[9]
[9] Reasons, [89]–[96].
The Senior Member referred to statements from other lay witnesses. These were Nathan Lebrakis,[10] Daniel Pocaterra,[11] Jessica Gilmore,[12] Sarah Shore[13] and Ellyn Sheehy.[14] Some of these referred to the worker complaining of back symptoms prior to 28 February 2020.
[10] Reasons, [97]–[105].
[11] Reasons, [118]–[129].
[12] Reasons, [130]–[151].
[13] Reasons, [152]–[158].
[14] Reasons, [159]–[166].
The Senior Member reviewed the medical evidence. She referred to notes from DMC Medical Centre, from which Dr Cameron (the worker’s general practitioner) practised. On 2 May 2014 there was a note referring to a motor vehicle accident on 30 April 2014, “injured back”, tender from T11 down centrally. On 2 January 2019 there was a history of 10 days’ lower back pain, radiating down both legs, the right more than the left. A CT scan dated 2 January 2019 described “multilevel facet joint arthrosis and shallow disc bulges … quite marked desiccation at T11/12 and a large disc bulge at L5/S1”. On 3 January 2019 the doctor recorded the lumbar pain was getting better. On 29 May 2019 Dr Cameron recorded a respiratory tract infection, and also lower back pain with burning down the left leg “L5”.[15]
[15] Reasons, [167]–[171].
A Doppler study dated 5 March 2020 was recorded as a “normal study with no evidence of a DVT”. On 6 March 2020 Dr Cameron recorded “5/7 sciatica R leg L5 S1”. A phone call recorded the result of a CT scan, “disc bulge L5/S1. Needs MRI”. The CT scan recorded a “5 day history of right sided sciatica in the L5 and S1 dermatomes”. The scan recorded a moderate broad-based posterior disc bulge at L5/S1, “now evidence of a right paracentral protrusion and extrusion component which appears unstable”. On 9 March 2020 Dr Cameron referred the worker to Dr Siu. On 27 March 2020 Dr Cameron recorded the worker “fell over a step at work and hurt his leg and back ‘28^th March’”. It recorded the worker saw the Burwood Back Clinic on “Tuesday 3^rd”. The Senior Member said the Council conceded that, given the date of this consultation, Dr Cameron must have erred in recording the date of injury as 28 March 2020.[16]
[16] Reasons, [172]–[179].
The Senior Member recorded the worker’s complaints thereafter. There was tingling in the foot, right leg pain, surgery had been recommended. The worker described himself as “not happy about being pushed back to work. He wanted to go back but couldn’t.” The worker said that he “could not walk or sit for very long, and only lying down gave him some relief”. On 11 August 2020 Dr Cameron recorded “back pain radiating down his right leg. ‘Weak and leg gives way’. He had left foot pain at night.”[17]
[17] Reasons, [180]–[191].
The Senior Member referred to attendances at the Concord Repatriation General Hospital. On 21 September 2016 the notes recorded “lower back pain, going down the back of his left leg, following a fall two days ago”. The notes on 22 and 23 January 2018 recorded low back pain. There was lumbosacral pain with radiation and tingling in the legs. Pain was eased a little with oxycodone. The worker was advised to lose weight. The worker attended the hospital on 4 March 2020 with a history of right leg pain for two days, after awakening with right leg pain radiating to the great toe, some subjective paraesthesia to the right leg. He was “weightbearing with difficulty”.[18]
[18] Reasons, [193]–[204].
The Senior Member referred to material from Burwood Back Pain. On 2 March 2020 the worker completed a patient information form and indicated he would be responsible for the account. The Senior Member said she drew no adverse inference from this. He answered ‘no’ to a question regarding whether he had had a similar condition or previous treatment in the past. He answered ‘no’ to a question regarding whether he had had car accidents, work injuries or sporting injuries. The Senior Member noted the worker’s responses to some questions were “inconsistent with the allegation of injury and are not explained”. Mr Konstantinou, chiropractor, certified the worker as unfit for work from 4 to 5 March 2020.[19]
[19] Reasons, [205]–[211].
The Senior Member summarised the material from Dr Siu, neurosurgeon. There was a report dated 11 March 2020, dictated by the Surgical Registrar but sighted by Dr Siu. The Senior Member said there were two versions, at pages 60 and 420 of the ARD. That at page 60 recorded a 10-day history of right leg pain. Low back pain “extended into the right leg, posterior calf, and dorsum of the foot into all toes”. There was no relevant medical history. It was said the CT scan “demonstrated an L5/S1 disc prolapse causing S1 nerve compression on the right”. The Senior Member recorded that the version of the report at p 420 of the ARD was identical, except that it contained the additional words: “Initially he was woken from sleep with this [leg] pain with no preceding strenuous exercise or trauma”. Dr Siu’s report dated 1 May 2020 described very severe sciatic pain that developed after a fall from a swim platform on 27 February 2020. Dr Siu said consideration of a lumbar discectomy was warranted. He submitted financial information for the proposed surgery to StateCover on 17 December 2020.[20]
[20] Reasons, [214]–[223].
The Senior Member summarised Dr Bentivoglio’s report to StateCover (which commissioned the report) dated 17 June 2020. The doctor, also a neurosurgeon, recorded the history of tripping in a pool on 28 February 2020. The worker denied prior back issues. Dr Bentivoglio’s working diagnosis was “right L5/S1 disc prolapse related to the injury on 28 February, with evidence of a radiculopathy”. StateCover submitted further material to Dr Bentivoglio, being the claims documentation, the Council’s timeline and statements of Mr Labrakis, Ms Gilmour and Mr Pocaterra. The doctor considered employment was a substantial contributing factor to the condition and the main contributing factor to the worker’s current problems. Because of severe pain unrelieved by conservative treatment, and S1 radiculopathy, the worker may have to consider operative intervention. The doctor referred to severe pain, weakness of plantar flexion in the foot, numbness in the S1 distribution, and an absent ankle reflex, which he had noted on examination. The doctor noted the worker said he had not had “back issues” before the fall. The doctor noted a voicemail from the worker’s sister to the Council, on 2 March 2020, that the worker had been involved in an accident, and that the worker was taken to Concord Hospital three days after the injury.[21]
[21] Reasons, [224]–[239].
The Senior Member summarised Dr New’s report dated 24 November 2020. Dr New was an orthopaedic and spinal surgeon qualified in the worker’s case. The worker gave a history of the incident tripping in the pool on 28 February 2020, and “stated categorically that there was no pre-history of this problem”. The worker described right leg radicular pain in the L5 nerve root distribution. Dr New said the disc prolapse at L5/S1 was calcified. Dr New thought surgical decompression may be required. Dr New reported again on 18 August 2021, after reviewing the records of Concord Hospital. The doctor said there had been a number of minor problems that historically had not changed the worker’s ability to work. He thought employment was the main contributing factor to any aggravation, acceleration, and exacerbation of a pre-existing back condition. The worker had been working without restriction at the time of his injury.[22]
[22] Reasons, [241]–[256].
The Senior Member summarised the submissions. I will not repeat this summary in any detail. The worker submitted the height of the attack on the worker went to his “unreliability as to date and time. He is not the most reliable historian”. It was submitted the worker was not dishonest. He worked for an uninterrupted period of seven months in moderately strenuous work. Someone with a collapsing L4/5 disc would not be doing this work. Reference was made to the ‘niggles’ the worker worked with, a common thing, and to the ‘egg-shell skull’ principle. It was submitted the worker did have an injury. It was submitted the worker had been totally unfit for work since 3 March 2020. It was submitted the PIAWE figure should reflect the earnings at Santa Sabina. The worker submitted that Dr Siu needed to perform the surgery.[23]
[23] Reasons, [258]–[276].
The worker referred to Mason v Demasi.[24] The worker submitted the Council was arguing that Dr Siu was “co-opted into a fraud”. The worker submitted this was improper in the absence of the employer having sought leave to cross-examine so that such allegations could be put to the doctor.[25] “Allegations of dishonesty and fraud cannot just be done in submissions.”[26]
[24] [2009] NSWCA 227 (Mason).
[25] Reference was made to Finney Pty Ltd t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13.
[26] Reasons, [277]–[282].
The Senior Member summarised the Council’s submissions. I will refer to these briefly. The Council referred to the worker’s first statement, in which he said he had not had any back injuries, consulted a doctor, or received treatment for any part of his back before February 2020. This was described as “manifestly incorrect”. There were concerns about the worker’s truthfulness. The Council submitted:
“… it is abundantly clear that the [worker] had substantial pre-existing back pain, attended for treatment at least six times, and was referred for CT and X-ray. When he came to prepare his statement, he categorically denied any injury or treatment to his back.”
The Council submitted there was a deliberate attempt to conceal the previous history. The same denials were given to Drs Bentivoglio and New. The Council submitted there was a credit issue and there was great difficulty in accepting the worker’s evidence. The worker did not tell Dr Cameron about the work injury until about one month after it had occurred. The Council refers to the two different versions of Dr Siu’s report, noting there was no explanation of the change in the second. The reasonable conclusion it says is that the worker told Dr Siu the truth the first time. The employer submits either the worker or Dr Siu realised the original version of the report would not assist in having the Council pay for the surgery and a “sanitised version” was then produced. The Council submits there was substantial existing pathology in 2019, neither Dr New nor Dr Bentivoglio was given a copy of the CT scan from 2019. There was no evidence from Dr Siu after 2020. The Council submitted that, even if it were accepted that the worker tripped over a step around 28 February 2020, the Senior Member would be hesitant to accept the effects were other than transient; there was no evidence dealing with capacity over the last several years.[27]
[27] Reasons, [283]–[307].
The Senior Member said that she gave no weight to the Council’s evidence going to disparagement of the worker on the basis of matters such as the worker’s demeanour, how he performed his duties or complaints by parents. The issue was ‘injury’ and what flowed from it. She said the Council accepted that at some point in 2020 the worker, in the course of his employment, tripped over a step in the pool. She said the most likely date was 28 February 2020. She accepted the evidence of Mr Labrakis (who was in the pool beside the worker) and Ms Bruzzese, neither of whom had any reason to give untruthful evidence. Ms Bruzzese said the worker attended a chiropractor during his lunch break on 2 March 2020 (the worker said this was on 3 March 2020). The Senior Member noted there were some inconsistencies in the worker’s responses at the chiropractor’s practice, and also in the history taken at Concord Hospital on 4 March 2020 (which recorded “nil recent trauma”). She referred to some confusion regarding which general practitioner the worker saw on 4 March 2020, and regarding the date he attended Concord Hospital. The worker could not remember hospital visits in 2016 and 2018. The Senior Member referred to CT scans on 2 January 2019 and 6 March 2020. The earlier of these described a disc bulge at L5/S1, the later described “‘now’ showing evidence of a right paracentral protrusion and extrusion component that appeared unstable”. The Senior Member said Dr Cameron “referred him to Dr Siu at this point”. The Senior Member accepted that the worker was a “poor historian” and said she was persuaded the injury occurred. This was supported by “contemporaneous evidence”.[28]
[28] Reasons, [308]–[327].

The Senior Member quoted from the judgment of Basten JA in Mason, on the topic of dealing with inconsistencies between a plaintiff’s oral testimony and histories recorded by health professionals. She said these principles applied to Dr Siu. She referred to the Council’s submission that a “sanitised version” of Dr Siu’s report had been provided to assist the worker in recovering the cost of surgery. The Senior Member referred to this as a “very serious allegation against Dr Siu”. The Senior Member quoted at length from the passage of Hancock v East Coast Timber Products Pty Ltd[29] in which Beazley JA dealt with such allegations against medical practitioners. The Senior Member described her Honour’s remarks as “apposite” to the Council’s submission regarding Dr Siu and the worker. The Senior Member said the Council had not sought to clarify Dr Siu’s opinion nor to cross-examine the doctor, who had no opportunity to respond to the allegation. The Senior Member said she was “not prepared to draw the inference that [Dr Siu] was somehow conspiring with the [worker] to have the proposed surgery paid for by the [Council]”. The Senior Member also referred to decisions of Masterton Homes Pty Ltd v Palm Assets Pty Ltd,[30] Finney Pty Limited t/as Cut Price Car Rentals v Chequer[31] and New South Wales Police Force v Winter.[32]
[29] [2011] NSWCA 11.
[30] [2009] NSWCA 234, [105].
[31] [2021] NSWPICPD 13.
[32] [2011] NSWCA 330.
The Senior Member said the worker had been on notice that the Council disputed ‘injury’, and that clinical records described previous lumbar symptoms and treatment. He had a reasonable opportunity to respond, which he did in his supplementary statements, and with additional evidence from Ms Bruzzese and Dr New. The Senior Member accepted that the worker’s histories “may have been somewhat lacking, and imprecise”. The worker said his previous symptoms were intermittent and soon settled. They did not prevent him from working, lifting things and driving. The Council’s witnesses did not say such symptoms affected the worker in his work. The worker said he did not tell medical assessors about the previous symptoms as he thought their questions were directed to injuries rather than general back pain. The Senior Member said she accepted this was “a reasonable explanation”.[33]
[33] Reasons, [328]–[348].
The Senior Member said Dr Bentivoglio was “alive to the [Council’s] concerns about the injury” and put them squarely to the worker. His report was supportive of the worker, there were objective signs on examination and he referred to the consideration of operative intervention. Dr Bentivoglio said the worker was bed-bound and house-bound with no capacity for work, as a “consequence of the workplace injury”.[34] The Senior Member set out the “sequence of events” that led to her conclusion on ‘injury’. She quoted from Kooragang Cement Pty Ltd v Bates.[35] She said that, considering the sequence of events, the causal chain was established. She accepted Dr New’s evidence in this regard. She found “injury arising out of or in the course of [the worker’s] employment with the [Council] on 28 February 2020.[36]
[34] Reasons, [349]–[354].
[35] (1994) 35 NSWLR 452.
[36] Reasons, [355]–[370].
The Senior Member dealt with incapacity. The Council submitted there was no evidence on incapacity over several years. The worker submitted he had been totally incapacitated since 3 March 2020. He was certified as having no capacity for work on 20 May 2020. The Senior Member said Dr Bentivoglio, in June 2020, considered the worker was “not really able to work at all”. Dr New, in November 2020, said the worker’s capacity for work, current and future, was substantially decreased. The Senior Member said the worker had not had the treatment he requires. The Senior Member recognised that it would have been preferable if there was more recent evidence as to capacity. She accepted it was unlikely the worker’s capacity had changed since Dr Bentivoglio and Dr New examined him. The Senior Member said there was not a great deal of conservative treatment and the worker had not had the surgery that was foreshadowed. She accepted the worker had no capacity for work since he attempted work on 3 March 2020. The weekly award was to commence from 4 March 2020.[37]
[37] Reasons, [371]–[375].
The PIAWE was calculated at $455.75 by the worker and $402.02 by the Council. The Senior Member accepted the worker had concurrent employment with Santa Sabina, which she assumed was not included in the Council’s calculations. The worker worked at Santa Sabina from 30 to 31 January 2020, and was paid for 16 hours’ work in connection with a three-week swimming program. The worker was paid casually at an hourly rate of $29.96. The Senior Member said that neither party had addressed on whether cl 4 of Sch 3 to the 1987 Act and cl 8F of the Workers Compensation Regulation 2016 (the Regulations) applied to the worker’s employment at Santa Sabina, given the short period of that employment. She directed the parties to agree on the worker’s PIAWE or alternatively provide written submissions on the award to be made. She also noted the period of 130 weeks had expired on 31 August 2022. She directed the parties to provide submissions on the application, if relevant, of s 38 of the 1987 Act.”[38]
[38] Reasons, [376]–[383].
The Senior Member referred to the opinions of Drs Siu, Bentivoglio and New. She said all of the surgeons who examined the worker expressed the opinion that he required surgery. She said it was unlikely the position had changed. She found the proposed surgery was reasonably necessary as a result of the injury on 28 February 2020. She noted there was no other claim pursued in respect of medical expenses.

SUBSEQUENT SUBMISSIONS

In compliance with the Senior Member’s reasons the worker’s solicitors lodged written submissions, prepared by his counsel Mr McEnaney, dated 6 March 2023. I will not set these out at any length. The worker submitted his entitlements pursuant to s 37 of the 1987 Act were exhausted on 31 August 2022. He submitted that s 38(2) applied providing he was “likely to continue to indefinitely … have no current work capacity”. He submitted the Commission had jurisdiction to determine s 38 entitlements and the worker fell within the definition in s 38(2) – no current capacity to work which is likely to continue indefinitely.[39]
[39] Worker’s submissions 6/3/23, [5]–[14].
These submissions also dealt with the Santa Sabina employment and the application of cl 8F of the Regulations. The worker submitted the earnings at Santa Sabina should be taken into account. From 30 January 2020 to 3 March 2020 the worker averaged just under 2 hours per week ($59.92 per week) from this employment. The PIAWE should be $461.94, $402.02 from the Council and $59.92 from Santa Sabina. The worker submitted there was an ongoing entitlement of $369.55 per week from 4 March 2022.[40]
[40] Worker’s submissions 6/3/23, [15]–[28].
The Council lodged written submissions, prepared by its counsel, Mr Coombes, dated 17 March 2023. It conceded, “in general terms”, that there was jurisdiction in the Commission to determine a dispute under s 38 of the 1987 Act. The Council submitted the finding at [375] of the reasons did not amount to a finding of ‘no current work capacity’ as it did not deal with whether there was an ability to work in ‘suitable employment’. It submitted Drs Bentivoglio and New did not deal with this and there was an absence of evidence on the issue. It submitted the worker carried the onus, which was not discharged, on whether he had ‘no current work capacity’. There was no weekly entitlement after 3 March 2022. It additionally submitted the evidence did not establish a lack of work capacity that is “likely to continue indefinitely”. The Council submitted the evidence did not satisfy subss (b) and (c) of s 38(3). The worker was not working 15 hours per week and the evidence did not establish the worker would be indefinitely incapable of undertaking additional employment or work that would increase his current earnings.[41]
[41] Respondent’s submissions 17/3/23, [2]–[8].
The Council accepted that the earnings at Santa Sabina should be included in the PIAWE calculation. It argued, on a factual basis, that it could not be concluded the worker would have worked for Santa Sabina beyond a three-week period. It submitted the effect of this was that the relevant PIAWE was $413.54. It submitted the weekly entitlement ceased on 3 March 2022.[42]
[42] Respondent’s submissions 17/3/23, [9]–[12].
The worker lodged submissions in reply dated 22 March 2023. The worker referred to a decision in Roberts v University of Sydney[43] in support of the proposition that the meaning of ‘indefinitely’ is “an unknown or non-specific period of time”. The worker submitted the date of the surgery dealt with in Senior Member Haddock’s orders was unknown, as was the recovery period and what any resultant capacity for work would be. It was submitted that s 38(2) was satisfied. The worker submitted the period covered by the letter of engagement from Santa Sabina was 30 January 2020 to 13 December 2020, on a casual basis. There was a “reasonable expectation” of continuing casual employment throughout the year. This represented the objective intention of the parties to the contract. The worker submits the Council’s suggested interpretation of cl 8F would be “grossly unfair”.
[43] [2021] NSWWCC 25.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

The appeal is governed by s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It is limited by the matters identified by Roche DP in Raulston v Toll Pty Ltd[44] where the Deputy President said:
“(a)    [A Member], 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 [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’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 [Member] was wrong.
(c)     It may be shown that [a Member] 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 [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”
[44] [2011] NSWWCCPD 25; 10 DDCR 156, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[45]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[46] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[47]
[45] [2020] NSWCA 54 (Hill).
[46] (1966) 39 ALJR 505.
[47] Hill, [20].

GROUNDS OF APPEAL

The Council, in its amended written submissions, raises the following grounds:
(a)    The Member failed to consider and determine whether employment was the main contributing factor to the worker’s injury. (Ground No. 1)
(b)    If the Member did find that employment was the main contributing factor to the worker’s injury, the Member failed to give adequate reasons for that finding. (Ground No. 2)
(c)    The Member erred in finding that the worker remained wholly incapacitated for work as a result of his injury, as there was no evidence to support that finding. (Ground No. 3)
(d)    The Member failed to give adequate reasons for finding that the worker remained wholly incapacitated for work as a result of his injury. (Ground No. 4)
(e)    The Member erred in finding that the proposed lumbar microdiscectomy was reasonably necessary treatment, as there was no evidence to support that finding. (Ground No. 5)
(f)    The Member failed to give adequate reasons for finding that the proposed lumbar microdiscectomy was reasonably necessary treatment. (Ground No. 6)

THRESHOLD MATTERS

The Council’s appeal was lodged on 23 March 2023, the day following the worker’s supplementary submissions in reply before the Senior Member.
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

Whether the appeal is interlocutory

Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Section 352(5) of the 1998 Act provides:
“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.”
It will be observed, from the summary of the reasons at [27] and [29] to [33] above, that issues remain between the parties regarding quantification of PIAWE, and whether s 38 payments can be properly awarded. The parties made submissions dealing with these issues, which had not been determined by the Senior Member at the time the Council’s appeal was lodged. It does not appear they have been dealt with subsequently.
The Council, in its appeal as originally lodged on 23 March 2023, submitted the worker had “claimed (and been awarded) weekly benefits from 4 March 2020 with a PIAWE of between $413.54 and $461.94”. It submitted there were “no interlocutory aspects to this appeal”.[48] The Council lodged amended written submissions dated 28 March 2023. In this document it stated “the appeal does not relate to an interlocutory decision”.[49]
[48] Council’s original submissions (23/3/23), [2].
[49] Council’s amended submissions (28/3/23), [2].
The Council’s submissions, in both their original and amended form, described a “fourth issue” and a “fifth issue”. The fourth was “whether the Commission can and should make an award” pursuant to s 38 of the 1987 Act, given his s 37 entitlement ceased on 31 August 2022. The fifth issue was said to be “the proper calculation of the worker’s PIAWE”. This was raised in the Council’s “Overview” of its appeal. It did not appear in the grounds of appeal or in the submissions dealing with the grounds.[50]
[50] Council’s amended submissions, ‘Overview’, [4].
The worker, on this topic, submitted:
“The appeal relates to a final decision, save as to the final determination of s 38
entitlements. The appellant contends the matter appealed is final but says nothing of the s 38 orders that Senior Member Haddock had not fully resolved at the time of the appeal (a fact the appellant ought to have acknowledged). The respondent worker submits that it is fair and proper that the appeal be received and determined, and if it be resolved in the respondent worker’s behaviour [sic, favour], a finding then be made by Senior Member Haddock on the discrete question of s 38 entitlements (if any).”[51]
[51] Worker’s submissions, [2].
I note that, in addition to the issue regarding the application of s 38 of the 1987 Act, the issue regarding the impact of the concurrent employment at Santa Sabina was also unresolved. The orders in the Certificate of Determination did not provide for the payment of specific monetary amounts by way of weekly entitlement, but rather ordered the parties to lodge written submissions so that the weekly entitlement could be determined by the Senior Member.
In Licul v Corney Gibbs J said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[52] (footnotes omitted)
[52] [1976] HCA 6; 180 CLR 213 (Licul), 225.
The above passage of Licul has been frequently applied, in the Commission and in the former Workers Compensation Commission of New South Wales, in matters involving s 352(3A) of the 1998 Act.[53] The Certificate of Determination in this matter did not, in my view, finally dispose of the rights of the parties. The weekly entitlement was not determined. There was no final decision at first instance regarding quantum of the weekly entitlement which, if there was error of fact, law or discretion, I as a Presidential Member could correct pursuant to s 352(5) of the 1998 Act. That is, I could not in the appeal currently before me, determine the outstanding issues on the weekly entitlement.
[53] See P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12.
The Senior Member’s decision was interlocutory. It requires leave pursuant to s 352(3A). This is subject to the requirements of s 352(3A): is the grant of leave “necessary or desirable for the proper and effective determination of the dispute”. Significant time has already elapsed since the date of the Certificate of Determination. It is desirable that the issues regarding ‘injury’ and the worker’s entitlement to the cost of surgery be dealt with. If leave were refused and the matter returned to the Senior Member, it would be necessary that she determine the matters that remain outstanding before her. On the issue of a final Certificate of Determination it would be possible for the Council to raise on a further appeal the issues it now seeks to agitate. In Gerlach v Clifton Bricks Pty Ltd the plurality said:
“The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’.”[54] (emphasis in original) (footnotes omitted).
[54] [2002] HCA 22; 209 CLR 478, [6].
The worker submits it is proper that the appeal be determined, and if the appeal be determined in his favour the matter can then be remitted to the Senior Member to deal with the outstanding issues regarding quantum.[55] This appears, in a general sense, to be a practical course. It seeks to minimise delay. It will permit the worker to promptly access, if otherwise entitled, the treatment which he requires. There is currently no specific award in place for the payment of weekly compensation. In Collingridge v IAMA Agribusiness Pty Ltd, Roche DP said that exercise of the discretion in s 352(3A) involved “a consideration of the nature of the dispute and the orders sought on appeal”.[56] It is not, in my view, appropriate that the issues in Grounds Nos. 3 and 4 be the subject of leave while other issues about quantum of the weekly entitlement remain outstanding before the Senior Member. I am satisfied it is desirable that leave be granted pursuant to s 352(3A) to deal with Grounds Nos. 1, 2, 5 and 6. Leave is refused in respect of Grounds Nos. 3 and 4.
[55] Worker’s submissions, [2].
[56] [2011] NSWWCCPD 31; 10 DDCR 174, [17].

GROUNDS NOS 1 AND 2 – SUBMISSIONS

These grounds relate to the Senior Member’s finding of ‘injury’. It is convenient to deal with them together.

Council’s submissions on Ground No. 1

The Council submits the pleadings, evidence and submissions were consistent with an allegation of injury pursuant to s 4(b)(ii) of the 1987 Act. It submits the Senior Member did not refer to the causal test in s 4(b)(ii) – “if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”. It refers to AV v AW[57] at [77] to [78]. The Council refers to a “substantial body of evidence … suggestive of causal contribution to the worker’s injury by non-work related factors.” It refers to multiple instances of complaints of back symptoms that predated the alleged injury. It refers to comments by Dr Bentivoglio and Dr New suggesting obesity may have contributed. It refers to recorded histories given around March 2020 which failed to mention the incident in the pool. It submits the inadequate accounts of prior injuries recorded by Dr Bentivoglio and Dr New limits the weight of their opinion evidence (reference is made to Paric v John Holland (Constructions) Pty Ltd[58]).[59]
[57] [2020] NSWWCCPD 9 (AV v AW).
[58] [1985] HCA 58, [9]–[10].
[59] Council’s amended submissions, [7]–[9].
The Council submits there was progression of the worker’s spinal pathology by reference to the CT scans in 2019 and 2020 and there was no evidence linking these changes to the workplace incident. The Council submits the main contributing factor was non-work related, most likely the continued progression of degeneration. In any event, the Senior Member was required to consider the statutory test and weigh the causal factors. The Council submits her failure to do so requires that the finding on ‘injury’ be set aside.[60]
[60] Council’s amended submissions, [10]–[12].

Council’s submissions on Ground No. 2

The Council refers to r 78 of the Personal Injury Commission Rules 2021 (the Rules) which deals with the duty to give reasons. It submits that, even if Ground No. 1 is not made out, the Senior Member’s reasons did not sufficiently expose her reasoning in reaching her conclusion on ‘main contributing factor’. The reasons do not reveal the weighing of competing causal factors. There is no express reference to the relevant causal test. It submits the lengthy reasons consist largely of a summary of the evidence and submissions.[61]
[61] Council’s amended submissions, [13]–[16].

Worker’s submissions on Ground No. 1

The worker submits the Senior Member recorded the evidence of prior complaints “in exacting detail”. In her reasons at [315] to [316] the Senior Member referred to histories taken at Burwood Back Pain and Concord Hospital in which the worker failed to mention the work incident.[62]
[62] Worker’s submissions, [7]–[10].
The worker submits the case brought was a frank injury which aggravated a pre-existing back issue. The worker submits the case brought was an aggravation caused by a s 4(a) frank injury, referring to Rail Services Australia v Dimovski.[63] The worker submits the Senior Member’s reasons were consistent with this, she found a frank incident (stumbling in a pool) with a worsening following that incident. She referred to right sciatica for five days since the fall (reasons [320]) and to a scan on 6 March 2020 “‘now’ showing evidence of a disc protrusion and extrusion component that appeared unstable” (reasons [323]). The worker submits that, consistent with Dimovski, it was probably unnecessary to apply the test under s 4(b)(ii) of the 1987 Act. The worker submits the Senior Member’s finding was obvious, the worker jarred his back and his back symptoms increased dramatically – employment was the main contributing factor.[64]
[63] [2004] NSWCA 267 (Dimovski).
[64] Worker’s submissions, [11]–[19].

Worker’s submissions on Ground No. 2

The worker submits the adequacy of reasons will vary depending on the nature of the case, the dispute and the evidence being considered. The Senior Member accepted the stumble in the pool caused a significant aggravation and/or deterioration of the worker’s back condition. More reasons were not required.[65]
[65] Worker’s submissions, [20]–[26].

Council’s submissions in reply on Ground No. 1

The Council submits the worker’s pleaded case did not rely on a frank incident. The worker’s pleading of ‘injury’ in the ARD read as follows:
“The [worker] sustained aggravation, acceleration and exacerbation of his pre-existing lumbar spine condition during the course of his employment. The [worker] was employed as a swimming instructor with the [Council]. The [worker] had his student holding onto a kickboard with the student moving forward and the [worker] walking backwards. Whilst the [worker] was walking backward, he tripped over a platform under the water on the ground. The [worker’s] underlying back condition was significantly aggravated. As a result the [worker] sustained a lumbar spine injury and now requires spinal decompression as proposed by Dr Timothy Siu. Please referrer to the [worker’s] statement for more details surrounding the circumstances of injury.”
The Council submits that no frank injury was pleaded and describes the above as “a perfect exemplar of a s 4(b)(ii) injury”. It submits “the worker did not, at any stage, demur from the pleaded case to the effect that the worker had sustained an aggravation of a pre-existing lumbar spine condition”. The Council says it accepts that an event, “stumbling in the pool”, occurred. This was not, of itself, a frank injury. The Council refers to the reasons at [368] to [369]. It submits this could not be characterised as a finding of a frank injury. The Council submits the Senior Member was presented with a s 4(b)(ii) case and evidence of non-work related causal factors; she was obliged to undertake the evaluative exercise of considering and weighing the respective causal factors.
The Council submits Dr Bentivoglio “offers some support for a frank injury” but submits the doctor relied on a defective history that there were no prior back injuries. The Council refers to Dr New’s report which describes the incident in the pool as “the main contributing factor to any aggravation”. The Council submits Dr New did not contend the pool incident resulted in a frank injury. Reference is made to Dr Siu’s opinion (“initially developed after a fall from a swim platform on 27/2/20”). The Council submits Dr Siu had a defective history and additionally there was “the unexplained mystery of the two versions of Dr Siu’s report”.[66]
[66] Council’s submissions in reply, [3]–[7].

GROUNDS NOS 1 AND 2 – CONSIDERATION

In Dimovski there was a ‘nature and conditions’ injury with one employer, followed by a later aggravation of the condition in an incident with a different employer. There were issues regarding contribution. Handley JA said:
“Although the [primary] Judge found that the case fell within s 16 [of the 1987 Act] she did not find that the worker was suffering from a disease in his left knee and Dr Habib did not state that he was. The [primary] Judge said that the worker had suffered injury to his left leg in the employment of the second respondent, and that employment with the appellant ‘was causative of an aggravation of that injury’. This was not a finding that he suffered from a disease in his left knee.”[67]
[67] Dimovski, [22].
In the same case Hodgson JA said:
“Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”[68]
[68] Dimovski, [68].
It is implicit in the above that the ‘disease’ provisions are not necessarily engaged simply on the basis that an injury involves the aggravation of a previous condition. The Council’s submission, summarised at [58] to [59] above, describes the worker’s pleading of injury as “a perfect exemplar of a s 4(b)(ii) injury” and “not, of itself, a frank injury”. On its face, this is contrary to the above passages from Dimovski. Whilst it would depend on the overall circumstances and medical evidence, a discrete injury “stumbling in the pool”, accompanied by symptoms, would typically involve injury within the meaning of s 4(a) of the 1987 Act. The worker’s case was presented on the basis of this specific incident.
The worker’s counsel, at the opening of his submissions, said:
“… the [Council] now concedes the event occurred. I think that must have been … by way of embracing what is fairly, what I’d submit, incontrovertible evidence about that event occurring. And so what turns on it then is simply a question for you, Member, to determine whether you accept the [worker’s] account that it caused the onset of symptoms that have not abated since.”[69]
[69] T 3.32–4.4.
The worker’s counsel made oral submissions that referred to the worker’s statement:
“‘My feet kicked a step of a platform under the water on the ground. I did not see it. The step is slightly moveable, made of hard plastic.’ … he states at paragraph 18, ‘I fell backward over the step. I went under water.’ I think Nathan – or what’s correct is – ‘Nathan tried to grab me leaning over the rope but missed. My lower back hit the bottom of the pool. I was on the ground for a couple of seconds.’ And he says, ‘I have done my back’. Gets up slowly. The little girl on the other side of the kickboard is fine and he walks back to the edge of the pool. He goes to the shallow end. He continued teaching but he says, ‘I felt pins and needles from my back going to my toes’, at paragraph 19.”[70]
[70] T 4.25–5.4.
The injury details in the ARD gave a specific date of injury of 28 February 2020, consistent with the Senior Member’s ultimate finding. The injury description is set out at [57] above. It will be observed that the injury description on which the worker’s counsel submitted (like the description in the ARD) described the specific event in detail. It did not focus on the worker’s duties over time, in a more general sense. Drs Siu, New and Bentivoglio all focussed on the incident in which the worker fell in the pool as the cause of his injury.
The Council submits Dr New did not contend the pool incident resulted in a frank injury. I note there is some problem with Dr New’s report because he did not record a history of the previous back problems. Dr New reported that there was “debilitating back pain and right sided radicular pain in the L5 and S1 nerve root distribution ... He has a disc prolapse at L5/S1 and lateral canal stenosis. The disc prolapse is calcified.” Dr New said of the workplace incident, “[h]istorically, it appears to be the cause of his current condition”. Asked whether the need for surgery came from “the workplace incident”, Dr New said “I would agree with that statement”.[71]
[71] ARD, pp 58–59.
Dr New, at the request of the worker’s solicitors, reported again on 18 August 2021, where he commented on clinical notes from Concord Hospital. The doctor said that the worker “sustained a number of minor problems which historically ha[d] not changed his ability to work until the date of his injury as noted in my report”.[72]
[72] Application to Admit Late Documents (AALD) 14/11/22, p 5.
Dr Siu reported that the worker’s problems “initially developed after a fall from a swim platform on 27/2/20”. His reports made little comment on causation.[73]
[73] Dr Siu’s reports, 11/3/20 and 1/5/20, ARD, pp 60–61.
Dr Bentivoglio reported on 17 June 2020 at the request of the Council. Like Dr New, Dr Bentivoglio did not take a history of prior back symptoms. Dr Bentivoglio recorded a history of injury:
“He had a work injury on 28/02/2020 whilst walking in a 1m deep pool. He was walking backwards and tripped over an underwater platform and fell backwards into the water.
As a consequence of this, he injured his lower back.”
Dr Bentivoglio said his “working diagnosis” was “a right L5/S1 disc prolapse related to the injury that he had on 28/02/20 with evidence of a radiculopathy”. The doctor said a CT scan showed “a disc prolapse at the L5/S1 level jamming and compressing the right S1 nerve root”. The doctor said the “diagnosis is quite consistent with his symptoms and the history of the injury”. He said it was “not an exacerbation of a pre-existing problem”, it was “not an aggravation of a disease or a deteriorating disease”. The doctor said “[i]t is all work related”.[74]
[74] Reply, pp 90–97.
The Commission is not a tribunal in which conventional concepts of pleading apply. In South Western Sydney Area Health Service v Edmonds McColl JA referred without criticism to a statement by Fleming DP that “proceedings in the [former Workers Compensation] Commission are not governed by ‘formal pleadings’.”[75]
[75] [2007] NSWCA 16 (Edmonds), [68].
The Senior Member expressed her finding on ‘injury’ in the following terms:
“When the above sequence of events is considered, the common sense ‘causal chain’ is in my view established. The evidence may be imperfect, as is often the case, but the [worker] clearly sustained an injury in the course of his employment on or about 28 February 2020 (probably on that date).
It appears most likely to me, despite Dr Bentivoglio’s opinion, the [worker’s] injury is the aggravation, acceleration, exacerbation, or deterioration of a disease, pursuant to s 4(b)(ii) of the 1987 Act. I accept Dr New’s evidence in this regard.
I therefore determine that on 28 February 2020, the [worker] sustained injury arising out of or in the course of his employment with the [Council].”[76] (emphasis added)
[76] Reasons, [368]–[370].
On balance, the finding of injury is consistent with a finding on the basis of injury simpliciter. The Senior Member made a finding of injury based on the date when, on her assessment on the probabilities, the injurious event actually occurred. The date of 28 February 2020 did not represent a deemed date. The reasons do not suggest it is a deemed date. The worker attended work on 2 March 2020 before ceasing (see the reasons at [356] to [357]). Whilst the above passage refers to s 4(b)(ii) of the 1987 Act, it also refers to the worker sustaining “an injury in the course of his employment on or about 28 February 2020 (probably on that date)”.
The way in which the case was presented on the worker’s behalf, and the expert evidence on which the parties relied, were consistent with an allegation of injury simpliciter. When the reasons are read as a whole, they are consistent with a finding of injury on that basis, rather than as a finding of injury on the basis of the ‘disease’ provisions. This is supported by the reasoning of Handley JA and Hodgson JA in Dimovski quoted at [60] to [61] above. Like the incident discussed by their Honours in Dimovski, it involved the aggravation of a pre-existing condition in a specific incident. The Senior Member’s finding of an aggravation injury satisfied the test in s 4(a) of the definition. Applying the reasons of Handley JA and Hodgson JA, the fact that the circumstances “could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease”. It follows that the Senior Member’s finding of injury should be regarded as one on the basis of injury simpliciter. There was no requirement, in those circumstances, to assess competing causal factors on the basis discussed in AV v AW.
The Council’s attack on the decision, in Ground No. 1, is to a significant extent an attack on the adequacy of the Senior Member’s reasons; whether these were deficient on the basis the Senior Member did not go through the process of considering and weighing the contributing factors. There was a single contributing factor, the incident when the worker tripped and fell in the pool on 28 February 2020. Where there was a single contributing factor to be considered, the concept of assessing competing causal factors would be essentially meaningless.
The Council submits the main contributing factor was the continued progress of degeneration (see [52] above). In AV v AW it was said:
“In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[77]
[77] AV v AW, [78].
The submission that the degenerative process itself was the main contributing factor to its own aggravation is misconceived. In the circumstances, there was a single relevant aggravating factor, the found incident in the pool on 28 February 2020. This was consistent with the evidence overall, including the specialist medical evidence qualified by the parties. I accept the worker’s submissions summarised at [55] to [56] above. The Senior Member’s reasons, when read as a whole,[78] make the basis of the ‘injury’ finding sufficiently clear. The above is sufficient to deal with Grounds Nos. 1 and 2, which fail.
[78] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale), 444.

GROUNDS NOS 5 AND 6 – SUBMISSIONS

These grounds relate to the order for the costs of surgery. It is convenient to deal with them together.

Council’s submissions on Ground No. 5

The Council submits there is a lack of clarity regarding the surgical procedure that is proposed. The reasons at [389] refer to a “lumbar discectomy”, which was proposed in Dr Siu’s report dated 1 May 2020.[79] The Council refers to Dr Siu’s “Financial Information for Proposed Surgery” which refers to “Spinal decompression or exposure via partial or total I [sic]”.[80] The Council then refers to the worker’s statement dated 15 December 2020 at [22] which refers to a “proposed spinal fusion”.[81] The Council submits this is important as there is a total lack of “evidentiary support” for a fusion. It submits a fusion was not addressed by Dr Siu.[82]
[79] ARD, p 61.
[80] ARD, p 726.
[81] ARD, p 9.
[82] Council’s amended submissions, [29]–[30].
The Council submits there is a “total lack of medical evidence post-November 2020”, particularly relating to treatment and progress. It submits it is suggested by the worker that he has received further treatment and his capacity has improved. It submits the need for treatment falls to be determined at the present time, not the time of injury or the time when the treatment was initially proposed. It submits there was no evidentiary basis “for the Member’s finding that ‘spinal decompression surgery’ was, at the present time, reasonably necessary”. It submits there was no basis for the “underlying inference that ‘it is unlikely that the position with respect to the necessity for surgery has changed’.”[83]
[83] Council’s amended submissions, [31]–[32].

Council’s submissions on Ground No. 6

The Council submits there is doubt regarding the need for surgery given the absence of evidence addressing that issue since 2021. It submits there is doubt regarding the procedure, the worker has suggested the proposed procedure is a lumbar fusion. The Council submits the Senior Member did not address these issues.[84]
[84] Council’s amended submissions, [18]–[19].

Worker’s submissions on Ground No. 5

The worker’s submissions address Grounds Nos. 3 and 5 together, under the heading “evidentiary vacuum post–2020”. The worker refers to the “uncontested findings” about the severity of the worker’s condition, including Dr New’s evidence that the bulging disc had calcified and was causing sciatica, the ongoing symptoms and the essential consensus that the worker would require surgery. The worker submits the conclusion was that only surgery would remedy the most severe symptoms and, pending that, “incapacity would remain effectively the same”.

The worker submits the Council fails to explain why, if surgery was needed in 2020, it would not be needed two years later. The worker submits the Council’s submissions do not address why the worker’s capacity would have improved while awaiting surgery in a state of significant disability. He submits these matters were “not addressed in the arbitration, and do not arise here”. The worker submits the Council does not address “what degree of contemporaneity a medical opinion must have in order to be acceptable”. The worker submits the ground should be dismissed.[85]
[85] Worker’s submissions, [45]–[52].

Worker’s submissions on Ground No. 6

The worker accepts the Council addresses a deficiency in the reasons, a failure to precisely describe the surgery ordered. The worker submits the reasons support surgery as proposed by Dr Siu, described as “in the best position to make this assessment”. There is reference to the reasons at [392] to [393]. The ARD described the surgery sought as “spinal decompression … annexed within the application”.
Dr Siu’s fee estimate was attached to the ARD, it referred to “Spinal decompression”.[86] The worker refers to the Senior Member’s reasons at [389] where there is reference to “lumbar discectomy”, regarded as appropriate by Drs New and Bentivoglio (reasons at [238] and [247]). The worker refers to the Senior Member’s findings that supported the reasonableness of surgery. The surgery was endorsed by Dr Bentivoglio and Dr New, although Dr New said that fusion was not appropriate. The worker submits “it is obvious why the Member found what she did”.[87]
[86] ARD, p 726.
[87] Worker’s submissions, [36]–[44].

Council’s submissions in reply on Ground No. 5

The Council submits Dr New did not regard the need for surgery as inevitable. It was subject to confirmation by the treating surgeon. Dr New recommended other treatment (physical therapy and hydrotherapy[88]). The Council submits this was consistent with a view on Dr New’s part that surgery may not be required. There was evidence of improvement to the point where by December 2021 the worker was driving where he had previously been bed bound. The Council submits there is “simply no evidentiary basis (as opposed to mere assertion) for the contention that nothing short of surgery could improve the worker’s symptoms.”[89]
[88] ARD, p 58.
[89] Council’s submissions in reply, [14].

Council’s submissions in reply on Ground No. 6

The Council submits the worker’s submissions seem “to accept that the surgery the subject of Order 2 (‘spinal decompression surgery’) does not match the procedure endorsed as potentially appropriate by Dr Bentivoglio and Dr New”. It submits the worker did not point to evidence that “spinal decompression surgery” is in fact a “lumbar discectomy”. It submits the worker did not adduce evidence to that effect.[90]
[90] Council’s submissions in reply, [12]–[13].

CONSIDERATION

The Council’s submissions refer to a reference, in the worker’s supplementary statement, to spinal fusion.[91] The Council submits there is no support in the medical evidence for such a procedure. I note the Senior Member did not consider spinal fusion as an option, her orders did not relate to spinal fusion, no specialist doctor furnished a report that suggested such a procedure. The ARD does not make a claim for the cost of spinal fusion surgery. It is understandable that a lay person such as the worker may have been confused about the nature of the surgery that was recommended. This point in the Council’s submissions can simply be left to one side, it is a distraction that is irrelevant to the real issues.
[91] Worker’s statement, 15/12/20, ARD, p 9, [22].
The Senior Member’s order pursuant to s 60(5) of the 1987 Act was in respect of “spinal decompression surgery”. Ground No. 5 describes the surgical procedure as “lumbar microdiscectomy”, which misdescribes the order. Dr Siu’s initial report dated 11 March 2020 referred to a CT scan that “demonstrates an L5/S1 disc prolapse causing S1 nerve root compression on the right”.[92] Dr Siu’s second report dated 1 May 2020 referred to “persistent sciatica” and said “consideration for a lumbar microdiscectomy is warranted”.[93] Dr Siu’s accounts manager issued a letter to StateCover dated 17 December 2020 setting out “Financial Information for Proposed Surgery”.[94] The item description for Dr Siu’s fees was for “Spinal decompression or exposure via partial or total I [sic]”. I infer this related to the proposed spinal decompression surgery.
[92] ARD, p 60.
[93] ARD, p 61.
[94] ARD, p 726.
Dr New’s report dated 24 November 2020[95] referred to a CT lumbar spine showing “[m]inor spondylosis in his lumbar spine with decreasing height of the L5/S1 disc. Calcified disc prolapse on the right hand side.” Dr New said there was “debilitating back pain and right sided radicular pain in the L5 and S1 nerve root distribution”. Dr New recommended nerve conduction studies and EMG to see whether there is any radiculopathy in the affected nerve roots, consultation with a dietitian, and “physical therapy, hydrotherapy and Pilates”. The doctor said that “[t]he question will eventually come as to whether or not he requires a disc excision at L5/S1, and neurolysis. This will need to be confirmed by his treating surgeon.” Dr New said it was unlikely that spinal fusion would assist the worker with chronic low back pain. Dr New recommended nerve conduction studies and EMG prior to surgical intervention. Dr New said “[i]t would appear that he has failed conservative management and I believe that the surgery is now reasonable and necessary”. (emphasis added)
[95] ARD, pp 55–59.
Dr Bentivoglio reported to StateCover on 17 June 2020.[96] He said Dr Siu had performed two cortisone injections that “really did not help much”, Dr Siu did not recommend physiotherapy, he prescribed pain medication and bedrest. Dr Bentivoglio said he had a “working diagnosis” of a “right L5/S1 disc prolapse related to the injury that he had on 28/02/2020”. The doctor described the worker as “basically bed-bound and house-bound, so he is not really able to work at all at this point in time, and I do believe this is a consequence of the workplace injury”. The doctor said the worker “will need to have operative intervention, depending on whether or not the symptoms settle”. Dr Bentivoglio said “[i]f the MRI scan confirms that he has a significant disc prolapse, then I would support the need for surgery. The surgery is due to the alleged injury …”. Dealing with capacity, the doctor said “I do not believe he is fit for his pre-injury duties. He is not probably able to return to his employment at all until he has had the appropriate surgical intervention”. The material does not refer to an MRI scan being performed. Dr Bentivoglio said, “I think he is going to need to have operative intervention because the appropriate conservative treatment to date has not helped resolve the situation”.
[96] Reply, pp 90–97.
It may be inferred the treating neurosurgeon, Dr Siu, as of 17 December 2020, held the opinion that spinal decompression was necessary as his rooms then forwarded an estimate of such surgical costs to StateCover. It can be reasonably inferred that the worker’s situation remained unresolved at that time.
The surgical procedure was described by Dr Siu, in his initial report, as a “lumbar microdiscectomy”. It was described in Dr Siu’s most recent correspondence on the topic, headed “Financial Information for Proposed Surgery”, as “Spinal decompression”. Dr New described it as “disc excision”. Dr Bentivoglio used the neutral term “operative intervention”.
The Council in Ground No. 5 argues there was “no evidence to support the finding that the lumbar microdiscectomy was reasonably necessary treatment”. In support of this it argues there is “simply no evidentiary basis (as opposed to mere assertion) for the contention that nothing short of surgery could improve the worker’s symptoms” (emphasis added). This submission misstates the test that governs the entitlement to the payment of expenses pursuant to s 60 of the 1987 Act.
Section 60(1) of the 1987 Act provides:
“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).”
The decision of Roche DP in Diab v NRMA Ltd[97] is well-known and is regularly applied in the Commission (as it was in the former Workers Compensation Commission of NSW). The Deputy President, after reviewing various relevant authorities, said:
[97] [2014] NSWWCCPD 72 (Diab).
“86. Reasonably necessary does not mean ‘absolutely necessary’. If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.    Giles JA added that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness …
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,^[[98]] 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’.” (excluding citations)
[98] Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32.
I note the test referred to in the Council’s submissions at first instance,[99] quoted in the reasons at [385], was whether the proposed surgery was “reasonable and necessary”. That the Senior Member specifically quoted the phrase suggests she was aware of its inappropriateness. The Senior Member quoted s 60 of the 1987 Act in her reasons, before embarking on an analysis of the medical evidence, which led to her conclusion that the proposed surgery was reasonably necessary.[100] The Council’s submissions do not assert that the test applied by the Senior Member was wrong, although it argues with the outcome. The test suggested by the Council in its submissions (referred to at [94] above) is not consistent with s 60 and the decision in Diab. To the extent that the Council relies on this submission to establish error, the submission is not well based and is rejected.
[99] T 42.3–5.
[100] Reasons, [384]–[395].
The Council, in its submissions before the Senior Member, raised the issue of the absence of medical evidence postdating December 2020.[101] It submitted “you don’t know, from the evidence, what his back condition is at the present time.”[102] The worker’s submissions dealt with this issue. The worker submitted Dr Siu was a specialist surgeon, who gave his opinion that surgery was required. Drs New and Bentivoglio both added a “cautionary element”, for example seeing another scan. Both of these doctors agreed there was a role for surgery. Dr Siu supported the need for surgery. The worker submitted this was the evidence on the worker’s need for treatment, there was not an “evidentiary vacuum”.[103]
[101] T 41.34–42.28, 47.30–48.5.
[102] T 42.18–19.
[103] T 54.14–27.
The worker, in his statement dated 15 December 2020, stated:
“At this stage, the workers compensation insurer has ceased my payments and ceased all treatment expenses and I am financially and emotionally struggling.”[104]
[104] ARD, p 9.
The worker’s evidence of his symptoms was updated in his statement dated 13 December 2021,[105] in which he stated:
“The pain has not subsided since my accident. It has been almost two years and I continue to have ongoing pain and restrictions. The treatment I have undergone so far has not helped. I cannot exercise and I am no longer as active. Prior to my accident I used to play sports on the weekend, now I can no longer do that.”
[105] AALD 14/11/22, pp 1–3.
The Senior Member referred to this issue. In her reasons she said:
“393. All the surgeons who have examined the [worker] expressed the opinion that he required surgery. Dr Siu, who was in the best position to make this assessment, proposed to perform it in late 2020 or early 2021.
394. The [worker] may have had suboptimal treatment, due to liability having been disputed and the protracted nature of the proceedings, but in my view, it is unlikely that the position with respect to the necessity for surgery has changed.
395. I am satisfied, having considered the [worker’s] evidence and the medical evidence, that the proposed surgery is reasonably necessary as a result of the injury on 28 February 2020.”
The Senior Member at [394] of the reasons identified an explanation for the absence of up-to-date medical evidence, in that the insurer had ceased paying the worker’s treating medical expenses. It was not a case with a major medical issue. The specialists who reported, Drs Siu, New and Bentivoglio, identified significant disc pathology accompanied by neurological signs. These specialists, subject to relatively minor reservations regarding the desirability of further investigations, regarded lumbar surgery as necessary. None suggested the symptoms would otherwise abate. The worker’s statement dated 13 December 2021 does not suggest the passing of a little less than two years since the injurious event had led to symptomatic improvement.
The Council’s submissions on this point tend towards simply seeking to reargue the point it raised (unsuccessfully) before the Senior Member. It has not successfully identified appealable error. I note s 352(5) of the 1998 Act and the decisions referred to at [34] to [35] above. It is insufficient that I might prefer a different view of the facts to the Senior Member (which I do not). It was open to the Senior Member to form the view that she did on this point. The Council has not identified error in the fact-finding exercise. Ground No. 5 fails.
The Council submits[106] there was doubt regarding the following issues, which the Senior Member failed to address:
(a) the proposition that the procedure involved was a lumbar fusion, and
(b) the need for surgery given the absence of evidence addressing that issue since 2021.
[106] Council’s amended submissions, [18].
In Beale Meagher JA said that “reasons need not necessarily be lengthy or elaborate”. His Honour also said:
“Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.”[107] (excluding references)
[107] Beale, 443.
In Mifsud v Campbell Samuels JA said:
“… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”[108]
[108] (1991) 21 NSWLR 725, 728.
For reasons I have given at [88] above, the reference in the worker’s supplementary statement to “spinal fusion” was of no real significance to the issue of the proposed surgery. The reference was made by a lay witness and was inconsistent with all medical evidence in the case. The Senior Member did not refer to this aspect of the worker’s supplementary statement in her reasons. This did not constitute a failure on the Senior Member’s part to furnish adequate reasons. In the circumstances of the case it was an argument of no real significance.
The Council’s submissions raise what was referred to as the “evidentiary vacuum … post‑2020”. The Senior Member was required to decide the issues on the evidence that the parties put before her. The Senior Member observed that “it would have been preferable to have more recent evidence as to the [worker’s] capacity for work”.[109] She observed “it would have been preferable to have updated evidence from, in particular, Dr Siu”.[110] She observed that Dr Siu apparently did not consider it necessary to wait for the MRI scan which was mooted, as he sought approval for the surgery on 17 December 2020.[111]
[109] Reasons, [374].
[110] Reasons, [387].
[111] Reasons, [389].
The worker’s supplementary statement dated 13 December 2021[112] dealt with the worker’s symptoms to that time. The statement included the following:
[112] AALD 14/11/22, pp 1–3.
“9.     Following the subject accident, my back pain became significantly worse. The pain became like a heavy aching, and it would shoot down my legs. I began to experience pins and needles in my legs and feet, and would sometimes lose sensation in my feet.
10.    I began to rely on heavier pain medications for relief as Panadol was not enough. I was unable to continue working due to the severe pain and restrictions. I now struggle to drive for long distances, struggle to sit or stand for long periods of time, and struggle to sleep or lay down. I cannot pick up anything heavy or bend down without experiencing a sharp pain.
11.    The pain I experience now as a result of the accident is much more severe. It is ongoing and debilitating. Since my accident I have required ongoing physiotherapy and treatment, which I did not require before.
12.    The pain has not subsided since my accident. It has been almost two years and I continue to have ongoing pain and restrictions. The treatment I have undergone so far has not helped. I cannot exercise and I am no longer as active. Prior to my accident I used to play sports on the weekend, now I can no longer do that.”
The Senior Member’s obligation to give reasons was subject to s 294 of the 1998 Act and r 78 of the Rules. She specifically said that she relied on the worker’s evidence in reaching her view on the need for surgery. The reasons, read as a whole, sufficiently discharged her duty in this regard.
Ground No. 6 fails.

DECISION

Leave to appeal pursuant to s 352(3A) of the 1998 Act is granted in respect of Grounds Nos. 1, 2, 5 and 6 of the Grounds of Appeal.

Leave to appeal is refused in respect of Grounds Nos. 3 and 4 of the Grounds of Appeal.
The Senior Member’s Certificate of Determination dated 24 February 2023 is confirmed.
The matter is remitted to the Senior Member to deal with the outstanding issues regarding quantification of the worker’s weekly entitlement.

Michael Snell

DEPUTY PRESIDENT

7 February 2024