Candy v MC Connor Racing Pty Ltd
[2020] NSWWCCPD 43
•7 July 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Candy v MC Connor Racing Pty Ltd [2020] NSWWCCPD 43 |
| APPELLANT: | Lisa Candy |
| RESPONDENT: | MC Connor Racing Pty Ltd |
| INSURER: | Racing NSW |
| FILE NUMBER: | A1-4943/19 |
| SENIOR ARBITRATOR: | Ms J Bamber |
| DATE OF SENIOR ARBITRATOR’S DECISION: | 6 January 2020 |
| DATE OF APPEAL DECISION: | 7 July 2020 |
| SUBJECT MATTER OF DECISION: | Whether error in determining the issue of injury to the right hip and whether the need for surgery to the right hip resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr S Grant, counsel | |
| Rishworth Dodd & Co | |
| Respondent: | |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s Certificate of Determination dated 6 January 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
Ms Lisa Candy (the appellant) was a racehorse track work rider employed by MC Connor Racing Pty Ltd (the respondent). The appellant suffered numerous injuries in the course of her employment, including an injury on 20 April 2013, in which she suffered a traumatic brain injury that affected her ability to recall matters in any detail. These proceedings concern an incident that occurred on 25 June 2018 which involved the appellant suffering a fall from a horse she was exercising for the respondent. The appellant alleged that she was thrown from the horse but was not injured so she re-mounted the horse. The appellant said that the horse again threw her off and then fell on her and trampled her, causing injury to her right hip.
The appellant claimed future treatment expenses in respect of the cost of a total right hip replacement, recommended by her treating specialist, Dr Arash Nabavi, orthopaedic surgeon. The respondent disputed that the injury on 25 June 2018 was the main contributing factor to the cause or aggravation of a pre-existing disease in the right hip and disputed the right hip was injured in the incident. On that basis it was not liable to pay the appellant compensation.
The matter proceeded to arbitration before Senior Arbitrator Bamber. The Senior Arbitrator determined that she was not satisfied that the appellant suffered an injury to the right hip and entered an award for the respondent.
The appellant appeals that decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant indicates that the appeal can be determined on the basis of the documentary material and the written submissions of both parties.
The respondent seeks to have an oral hearing of the appeal. The respondent submits that the appeal grounds are imprecise and lack clarity so that it is difficult to discern the precise nature of the appellant’s complaint.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties as to whether the appeal can proceed to be determined on the basis of those documents. I have also had the benefit of the written submissions by both parties, which I consider adequately put their respective arguments before me. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The appellant’s statement
The appellant provided a statement dated 27 August 2019.[1] The appellant advised that she was employed by the respondent as a track rider and had suffered two injuries in that employment. Those injuries occurred on 20 April 2013, when a horse fell, causing her brain injury and an injury to the left hip and on 25 June 2018, when she fell from a horse and the horse fell on her, trampling her, which caused injury to her low back and right hip.
[1] Application to Resolve a Dispute (ARD), pp 1–2.
The appellant stated that as a result of the first injury, she experienced left hip problems which continued for a time and then settled. She said she received lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 17% whole person impairment as a result of the brain injury.
The appellant reported that she was off work for 22 weeks following the injury in 2013 and between that injury and the injury on 25 June 2018, she had a number of falls that were not serious, as well as a fall in which she suffered a serious laceration to her face. The appellant stated that the injury on 25 June 2018 was the first in which she had experienced a serious injury to her right hip.
The appellant referred to the history recorded by Dr James Bodel, orthopaedic surgeon, who was qualified by her legal representatives to provide a forensic medical opinion on her behalf. The appellant advised that the history recorded by Dr Bodel as to what occurred on 25 June 2018 was accurate. The appellant described being thrown from the horse, following which she re-mounted the horse, which threw her off again and the horse fell on her and trampled her. She said she experienced back and right hip pain.
The appellant reported that she was referred to Dr Arash Nabavi, orthopaedic surgeon, who treated her with a series of injections which provided her with short term relief. The appellant reported that she was having considerable problems with her right hip and wished to have the total right hip replacement proposed by Dr Nabavi.
The Moorebank Shopping Village Medical Centre clinical notes
The appellant attended various doctors at the Moorebank Shopping Village Medical Centre and a selection of clinical notes produced by that practice were in evidence.
On 26 June 2014, Dr David Huynh, general practitioner, recorded that the appellant was “due for osteoplasty and labral repair.”[2] On 10 July 2014, Dr Huynh noted that the fees for hip surgery were too high and suggested making enquires of the fees of other orthopaedic surgeons. In subsequent consultations during 2014, Dr Huynh recorded several falls from horses without reference to injury to the right hip.
[2] Application to Admit Late Documents, 5 December 2019, (AALD), p 10.
On 26 June 2018, Dr Zeyu Li, general practitioner, recorded the following entry:
“Fell off horse early yesterday 4.30am
Was thrown off twice, may have been trodded [sic] on by horse hoof also in back.
Pain worse today - diffuse pain around lower back - nil radiation, denies any weakness in LL or bladder/bowel sxExamination:
antalgic gait
tender+++ midline L3-L5 and paravertebrally
LL neuro nad
ROM restricted due to pain ++ flexion/ext
full ROM cspine, nil tenderness in midline
no signs of head traumaReason for contact:
lower back injuryVisit type:
Surgery Consultation
Fell from horse - lower back pain
…Diagnostic Imaging requested: CT lumbar spine
Management:
CT today, heat packs, voltaren rub, mobic + panadeine forte prn
exclude trauma related injuries + physiotherapyoff work this week, review with results - initial WC filled”.[3]
[3] AALD, pp 7–8.
The appellant attended Dr Li to discuss the results of the CT scan on 27 June 2018. Dr Li noted:
“back - no trauma related injuries seen on CT. pt reports pain is improving. nil neurological sx reported.
advised to cont sx tx and regular stretches, review tuesday.”[4]
[4] AALD, p 7.
A number of clinical notes produced by Dr Huynh were in evidence, which were clearly not the entirety of the clinical notes from that practice.
A letter of referral of the appellant to Dr Nabavi dated 20 July 2018 was included in the documents produced.[5] The referral sought an opinion in respect of the appellant’s left femoral “acetabular impingement syndrome” as shown on an MRI. The referral indicated that the appellant was experiencing left hip pain with intermittent giving way. The referral recorded the following past history:
“25 April 2013 severe traumatic brain injury following fall from horse
13 May 2014 MRI dysplastic hip, early OA, degen. lobulated labral cyst (Right)
1 October 2014 partial tear gastrocnaemius muscle with haematoma (Left)
26 May 2015 left trochanteric bursitis/ gluteal medius tendinopathy”.
[5] AALD, p 5.
The evidence from the treating specialists
Dr Andrew Jordan, rheumatologist, reported to Dr Huynh on 13 May 2015.[6] Dr Jordan provided a history of the appellant having fallen from a horse approximately 3 months previously with the horse landing on top of her, causing pain around the sternal and rib area, which was resolving. Dr Jordan noted that the appellant had developed pain over the right lateral hip and buttock. Dr Jordan observed the appellant’s symptoms and restrictions on examination and formed the view that the appellant was likely to have underdeveloped gluteus muscles which was surprising given her overall strength and conditioning. Dr Jordan recommended continuation of physiotherapy, but referred the appellant for an MRI scan of the right hip if she did not benefit from the suggested physiotherapy program.
[6] AALD, p 11.
Dr Nabavi reported back to Dr Li in a letter dated 6 August 2018.[7] Dr Nabavi noted that the appellant was referred to him on this occasion in respect of left sided hip pain and advised that he had previously seen the appellant in respect of right hip complaints which resulted from labral pathology and dysplasia. Dr Nabavi recorded significant discomfort in both hips. Dr Nabavi referred to a recent exacerbation of her pain which related to a fall from a horse. Dr Nabavi confirmed the MRI scan results and advised that in view of the presence of labral dysplasia, labral surgery may worsen her symptoms and aggravate the degenerative changes in the hip. He advised a trial of injections.
[7] AALD, p 4.
Dr Nabavi further reported to Dr Li on 11 February 2019.[8] Dr Nabavi advised that the MRI scan of the appellant’s right hip demonstrated chondrolabral pathology, thinning of the femoral head and mild to moderate dysplasia. Dr Nabavi did not agree with the radiologist’s report of the scan. Dr Nabavi was of the view that, given the dysplasia and the cartilage thinning, the only treatment option was a prosthetic hip replacement.
[8] ARD, p 28.
The evidence of the medico-legal specialists
Dr James Powell, orthopaedic surgeon, provided a report at the request of the respondent on 15 March 2019.[9] Dr Powell noted that the appellant had suffered a head injury in 2013 which rendered her memory for details poor. Dr Powell recorded that the appellant had been thrown from her horse on 25 June 2018, could not remember how she landed, but got back on the horse. Dr Powell reported that the appellant was told that the horse then rolled on her but she could not remember which part of her was injured.
[9] Reply to Application to Resolve a Dispute (Reply), pp 5–12.
Dr Powell said that the appellant complained of the commencement of right leg pain about the area of the upper thigh and her leg giving way at the hip, which caused her to drop suddenly. Dr Powell noted the treatment provided to the appellant and her ongoing symptoms and difficulties with the right hip.
Dr Powell took the history that prior to this injury, the appellant had not had any injuries or difficulties with her right hip. Dr Powell noted the history of the appellant’s left hip and brain injuries and noted there were other past injuries following which the appellant had always been able to return to horse riding.
Dr Powell physically examined the appellant and reviewed the radiological investigations which consisted of an MRI scan dated 8 February 2019 and plain x-rays of the pelvis and hips dated 6 August 2018. Dr Powell formed the view that the appellant most likely suffered from bilateral hip dysplasia and was starting to develop degenerative osteoarthritis and labral degeneration, at least in the right hip, with symptoms developing after the fall from the horse in June 2018.
Dr Powell advised that the hip dysplasia was congenital and developmental but noted that the appellant had been symptom free prior to the fall in June 2018. Dr Powell observed that many patients with hip dysplasia remain asymptomatic until later in life and sometimes remain asymptomatic even at that stage.
Dr Powell said that symptoms generally develop when osteoarthrosis develops in the hip. Dr Powell noted that the appellant had experienced symptoms in the left hip which had settled.
Dr Powell thought it unclear as to why the appellant was continuing to experience symptoms in the right hip. He opined that it was probable that the appellant had received some local trauma in one of the falls from the horse but that there was no structural failure indicated on the radiological imaging. He further opined that the appellant may have suffered a labral deterioration which would explain the continued symptoms, or it may have been that the joints, once stimulated, did not return to their pre-morbid state. Dr Powell said that the appellant had a superimposed degenerative component in the hip likely to have been caused by years of functional use with force over the small surface area. Dr Powell added that this was the natural history of hip dysplasia.
Dr Powell observed that there was no indication that the appellant’s work riding horses had influenced the early presentation of the appellant’s symptoms. Dr Powell said that the incident on 25 June 2018 caused the appellant to present to her general practitioner with symptoms, following which, the radiological investigations showed pathology about which she had been unaware.
Dr Powell considered that if the appellant’s pain symptoms were sufficient to significantly impact on her lifestyle, then, at her age, and in the absence of other contraindications, it was reasonable to offer her a total hip replacement.
Dr Powell was asked to comment on whether there would be a likelihood that the appellant would require a left hip replacement in the near to medium future. Dr Powell observed that this was a difficult question to answer given that the appellant denied any symptoms in the left hip. Dr Powell responded that in the absence of symptoms, the appellant would not require a left hip replacement and such a procedure was not inevitable in patients with hip dysplasia.
Dr Bodel was asked to provide an opinion on behalf of the appellant. He provided a report dated 5 July 2019 following an examination of the appellant on that date.[10] Dr Bodel summarised the appellant’s injuries as an acute brain injury and left hip injury on 25 April 2013 and an injury to the right hip and low back on 25 June 2018.
[10] ARD, pp 18–24.
In respect of the injury in 2013, Dr Bodel recorded that the appellant suffered a fracture in the region of her left hip and subsequently underwent a total hip replacement. Dr Bodel described the sequence of events that occurred in the injury on 25 June 2018. Dr Bodel said that the appellant was thrown from her horse, was uninjured, so re-mounted the horse but was again thrown off and the horse fell on top of her. Dr Bodel reported that following the injury, the appellant developed increasing back and right hip pain. Dr Bodel referred to the treatment provided by Dr Li and Dr Nabavi and Dr Nabavi’s recommendation that the appellant required a total hip replacement in order to address her significant right hip pain.
Dr Bodel confirmed that there was dysplasia in both hips, that the series of injections would not afford any significant long-term benefit and that the appellant would inevitably require a hip replacement. Dr Bodel performed a physical examination, during which he noted a healed scar in the left hip, which he considered was consistent with that of a total hip replacement. Dr Bodel advised that he was not provided with any x-rays or other radiological tests. Dr Bodel agreed with Dr Nabavi that the poor outcome from the series of injections indicated that the only valid option was a total hip replacement, which Dr Bodel considered was a consequence of the fall on 25 June 2018. Dr Bodel said that he was surprised that the appellant was allowed to return to horse riding after the total left hip replacement. Dr Bodel referred to Dr Powell’s opinion and Dr Powell’s comment that whether the right hip replacement was reasonably necessary was a “rather difficult” question and advised that the appellant’s right hip was very irritable, painful and stiff, which warranted a total hip replacement.
In response to specific questions put to him, Dr Bodel opined that:
(a) the appellant had a fall and was trampled by a horse, injuring her low back and right hip on 25 June 2018;
(b) the appellant may well have aggravated, accelerated, exacerbated or deteriorated a disease condition in her right hip, but in the absence of radiological investigations, he was unable to determine that question;
(c) he suspected that as a result of the frank injury on that day, there would at least be a labral tear present and possibly some other fracture;
(d) on the basis of the appellant’s clinical presentation, the proposed right hip replacement was reasonably necessary, and
(e) the requirement for the surgery was causally related to the injury on 25 June 2018.
Other documentation
The Employer’s Injury Claim Form was in evidence, which confirmed that the appellant was injured on 25 June 2018 when she fell off a racehorse and was “trampled.” The injury was identified as “lower back/hip.”[11]
[11] ARD, pp 3–5.
A document titled “Track Riding Incident Report” recorded that in the incident on 25 June 2018, the appellant fell from a horse when it bucked and the horse kicked the appellant. It is not apparent who completed that form.[12]
[12] Reply, p 18.
There was also an Injury Management Plan dated 3 August 2018 in evidence.[13] That unsigned document recorded that the appellant injured her lower back and left hip in the injury on 25 June 2018.
[13] ARD, pp 25–27.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator noted the claim brought by the appellant and the issues raised by the respondent. The Senior Arbitrator summarised the appellant’s statement evidence and reviewed the evidence from the treating medical practitioners, which included the records from the Moorebank Shopping Village Medical Centre and the reports from Dr Jordan and Dr Nabavi. Those documents were adduced by the respondent under cover of the AALD. The Senior Arbitrator observed that the clinical notes from the Moorebank Shopping Village Medical Centre (which were produced under a Direction) were endorsed with page numbers, noting that page numbers between pages 22 and 30 were not in evidence and there was a gap in entries between 25 November 2014 and 6 June 2018. The Senior Arbitrator remarked that the appellant had been granted access to those documents but had not sought to tender them. The Senior Arbitrator observed that there were no physiotherapy or Workcover certificates of capacity in evidence.
The Senior Arbitrator summarised the report from Dr Powell. The Senior Arbitrator extracted several passages from Dr Powell’s report, including the following:
“While it is probable she had some local trauma to the region in the fall from the horse, on either the first or the second time, there is no indication on her imaging of actual structural failure occurring. She may have extended some of the labral deterioration and this may be why she is remaining symptomatic or possibly it is just one of those joints that once stimulated do not return to their premorbid state.”[14]
[14] Dr Powell’s report, p 6, [1], Reply, p 10.
The Senior Arbitrator considered that this passage might indicate that Dr Powell was of the view that the appellant may have injured her right hip in the fall, which rendered the right hip symptomatic. The Senior Arbitrator reasoned, however, that the passage was inconsistent with Dr Powell’s further comment that:
“There is no indication that the type of work Ms Candy has done, riding horses, has had any influence that has led her to an earlier presentation that might otherwise be expected”,[15]
which the Senior Arbitrator also considered was inconsistent with Dr Powell’s further acknowledgement that since the fall on 25 June 2018, the appellant experienced right hip symptoms which continued.
[15] Dr Powell’s report, p 6, [3], Reply, p 10,.
The Senior Arbitrator reviewed the opinion of Dr Bodel. The Senior Arbitrator noted that Dr Bodel referred several times to a well healed scar over the left hip which was consistent with that of a total hip replacement and yet the appellant denied having undergone such a procedure. The Senior Arbitrator observed that Dr Bodel did not have available to him any of the radiological investigations, which she considered was of some concern. The Senior Arbitrator quoted the following passage from Dr Bodel’s report:
“The assessment report from Dr James Powell is also noted. He does indicate that the answer in regard to the reasonably necessary nature of the total hip replacement for the right hip is ‘rather difficult’. He confirms that imaging findings alone are not the determinant for whether hip replacement is required or not. He indicates that it should be based on ‘symptoms’. This lady presents today with a very irritable, painful, stiff hip on the right hand side and a total hip replacement therefore is warranted.”[16]
[16] Dr Bodel’s report, p 5, ARD, p 22.
The Senior Arbitrator observed that this was not a correct summary of Dr Powell’s answer to the question posed. The Senior Arbitrator said that Dr Powell’s answer that the question was “rather difficult” was in respect of whether the appellant would require a left total hip replacement in the near to medium future.
The Senior Arbitrator referred to the evidence recorded by both Dr Bodel and Dr Powell in respect of the appellant’s brain injury and problems with her memory. The Senior Arbitrator expressed concern that the appellant did not give evidence about her prior right hip problem in 2015, which Dr Jordan referred to in his report. The Senior Arbitrator noted that the circumstances of the 2015 injury were quite similar to those described by the appellant in 2018. The Senior Arbitrator referred to the appellant’s evidence that she had not previously experienced any other serious injuries, including to her hip. The Senior Arbitrator added that Dr Nabavi had obviously seen the appellant in respect of her right hip before the 2018 injury and had previously diagnosed dysplasia and labral pathology.
The Senior Arbitrator concluded that, for those reasons, she needed to treat the appellant’s evidence with caution. She emphasised that she did not consider the appellant to be dishonest but said that the appellant had not given evidence about her medical history. The Senior Arbitrator looked to the medical history recorded by Dr Bodel. The Senior Arbitrator pointed out that the history recorded by Dr Bodel was of two injuries. The first was an injury on 25 April 2013 in which the appellant suffered a brain injury and a fracture of the left hip and the second was a right hip injury on 25 June 2018. The Senior Arbitrator noted that Dr Bodel did not have a history of the injury in 2015, for which the appellant received treatment from Dr Nabavi in respect of right hip symptoms.
The Senior Arbitrator referred to the appellant’s submission that it would have been preferable for Dr Bodel to have seen the radiological investigations, but ultimately the fact that he did not was not of concern because Dr Bodel’s assumptions about the radiology were in fact correct. The Senior Arbitrator pointed out that Dr Nabavi, in his report dated 6 August 2018, spoke about an MRI scan which must have pre-dated the scan dated 8 February 2019 and which disclosed the presence of labral cysts and hip dysplasia. Further, in the notes of Dr Li, there was reference to an MRI scan dated 13 May 2014 which reported “dysplastic hip, early OA, degen. lobulated labral cyst (Right).”[17] The Senior Arbitrator concluded that she could not accept the appellant’s submission that it was immaterial that Dr Bodel had not seen the radiological investigations.
[17] AALD, p 5.
The Senior Arbitrator said that the respondent had submitted that Dr Bodel’s report was flawed because there was a lack of history about the 2015 injury, he did not provide a reasoned opinion, and had not reviewed any radiological investigations. The Senior Arbitrator accepted that submission and found that she could not afford any weight to the opinion of Dr Bodel.
The Senior Arbitrator observed that no doctor on behalf of either party had seen all of the radiological investigations or all of the treating medical evidence. The Senior Arbitrator said that in the absence of considered opinions based on all of the evidence, it was very difficult to make sound findings about the injury on 25 June 2018 and whether the right hip replacement surgery was required as a result of the injury. The Senior Arbitrator added that a report from Dr Nabavi on the issue of causation would have assisted both the Commission and the medico-legal experts qualified by each party. Further, the entry in the Moorebank Shopping Village Medical Centre clinical notes on 26 June 2018 referred only to injury to the low back (of which Dr Powell was not aware), which was consistent with the claim form lodged four days later and the referral by Dr Li to Dr Nabavi one month later.
The Senior Arbitrator noted the appellant’s submission that care should be taken when considering the notes of a busy medical practitioner. The Senior Arbitrator agreed that this was often the case, but said that after a careful review of the evidence in this case, including the referral from Dr Li to Dr Nabavi and the claim form signed by the appellant, she could not conclude that there was a failure by the treating providers to record the appellant’s complaints. The Senior Arbitrator maintained that it would have been helpful to have the complete clinical records and the physiotherapy reports so that it could be ascertained when the appellant made complaints of right hip pain.
The Senior Arbitrator remarked that the evidence before her did not support a finding that there had been a right hip injury on 25 June 2018.
The Senior Arbitrator pointed out that the appellant bore the onus of proof. The Senior Arbitrator said that, because of the unsatisfactory nature of the evidence, she was not satisfied that the appellant had discharged her onus of proof in relation to the issue of the right hip injury.
The Senior Arbitrator considered that, if the appellant had difficulties with her memory, a medical report about causation from either or both Dr Li and Dr Nabavi, who were aware of the earlier history, would have assisted the appellant and the Commission. The Senior Arbitrator reasoned that even if Dr Nabavi’s comments could be construed to mean there had been an exacerbation of the right hip condition in the injury on 25 June 2018, in the absence of an opinion as to the cause of the need for surgery, she could not find in favour of the appellant in respect of the proposed surgery. Further she could not accept the views of either Dr Bodel or Dr Powell as to whether the need for surgery was as a result of the injury on 25 June 2018 in circumstances where the appellant’s complicated medical history was not known to those doctors.
The Senior Arbitrator cited various authorities in respect of what is required in order to satisfy the burden of proof and to establish a causal chain of connection.[18] The Senior Arbitrator considered that in this case, she could not apply a common-sense evaluation of the causal chain because key information was missing from the causal chain. Further, the expert evidence was not reliable. Neither Dr Bodel nor Dr Powell were appraised of the medical evidence from the treating providers about the appellant’s hip condition and the medical evidence immediately after the injury which failed to mention right hip complaints. The Senior Arbitrator reiterated that she could not make sound decisions about relevant questions of fact because the appellant had not discharged her onus of proof.
[18] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, Comcare v Martin [2016] HCA 43; 258 CLR 467, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568, Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
The Certificate of Determination issued on 6 January 2020 records:
“The Commission determines
1. Award for the respondent.”
GROUNDS OF APPEAL
The appellant brings six grounds of appeal, alleging the Senior Arbitrator erred as follows:
(a) Ground One: error of fact in finding that the incident relied on was quite similar to that referred to by Dr Jordan in 2015;
(b) Ground Two: error of fact in placing weight on the appellant not having mentioned in her statement that she had an earlier fall and that she had consulted Dr Jordan in 2015 for right hip pain;
(c) Ground Three: error of fact in placing weight upon Dr Bodel not having access to the earlier x-rays or scans or being aware of the injury suffered by the appellant in 2015;
(d) Ground Four: error of fact in considering that the views of Dr Powell on causation should not be accepted because of a lack of knowledge concerning earlier complaints of right hip pain and lack of such a complaint to Dr Li immediately following her injury;
(e) Ground Five: error of fact in stating that it was very difficult for the Senior Arbitrator, on the basis of the evidence from Dr Nabavi, to make a sound finding as to the nature of the injury on 25 June 2018, and
(f) Ground Six: error of fact in the Senior Arbitrator’s finding that she could not make a “common-sense” evaluation of the causal chain because key information was missing.
LEGISLATION
Section 4 of the 1987 Act relevantly defines injury as:
“Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”.
SUBMISSIONS
The respondent makes a general submission in relation to each ground of appeal that the appeal involves challenges to the Senior Arbitrator’s factual findings which the appellant asserts are errors of fact. The respondent submits that there is no proper ground of appeal where the appellant simply disagrees with an arbitrator’s findings of fact. The respondent submits that findings of fact made by an arbitrator can only be disturbed if other probabilities so outweigh those chosen by the arbitrator it can be said that the arbitrator’s conclusion was wrong. The respondent cites Raulston v Toll Pty Ltd[19] as authority for that proposition.
Ground One: error of fact in finding that the incident relied on was quite similar to that referred to by Dr Jordan in 2015
[19] [2011] NSWWCCPD 25 (Raulston).
The appellant’s submissions
The appellant submits that it was not disputed that she suffered from difficulties with her memory for detail as a result of a brain injury in 2013. However, the appellant asserts that her truthfulness was not questioned, and her version of events was not criticised in that there was no challenge that she suffered pain in her right hip from the time of her injury in 2018.
The appellant further submits that the Senior Arbitrator’s observation that the details of the event occurring in 2015 were similar to the description of injury on 25 June 2018 was an error. The appellant asserts that it influenced and contributed to the Senior Arbitrator’s conclusion that she was not satisfied that the appellant had discharged the onus of proving she injured her right hip on 25 June 2018.
The appellant says that the event recorded by Dr Jordan was that a horse rolled on the appellant, injuring her hip. In contrast, the appellant says that the injury on 25 June 2018 involved the appellant being thrown from a horse and the horse trampling her. The appellant submits that this description of the injury on 25 June 2018 was supported by the evidence contained in the claim form and the appellant’s account given to Dr Li on 26 June 2018.
The respondent’s submissions
The respondent submits that the Senior Arbitrator’s observation that the incidents in 2015 and 2018 were similar was unquestionably accurate and there is no basis upon which it could be asserted that the observation (which was not a finding of fact at all) was incorrect in any way. The respondent further submits that the Arbitrator’s comment had no significant bearing on the Senior Arbitrator’s determination, which was clearly open to her on the evidence.
Ground Two: error of fact in placing weight on the appellant not having mentioned in her statement that she had an earlier fall and that she had consulted Dr Jordan in 2015 for right hip pain
The appellant’s submissions
The appellant submits that she did not deny that she had suffered right hip pain in the past. The appellant says that she emphasised that the injury in 2018 was the first time she had suffered a “really serious” injury to her right hip. The appellant asserts that the issue to be determined was whether the appellant’s pre-existing disorder was aggravated and not whether the effects of the injury were the primary source of her complaint. The appellant maintains that it is irrelevant whether she had right hip pain in the past when there was an absence of complaint of right hip pain immediately prior to the injury in 2018 and when the appellant had continued to ride horses up to the time of that injury.
The appellant submits that she had pain following the fall and was treated for that pain within weeks of its occurrence. She asserts that the past history of pain is not surprising but irrelevant in determining whether she had further aggravated her right hip condition in the incident pleaded.
The respondent’s submissions
The respondent submits that the Senior Arbitrator’s consideration of the fact that the appellant failed to mention her prior hip condition was proper in considering the weight to be afforded to the respective evidence and, in particular, to the consideration of the evidence of Dr Bodel. The respondent disputes that the Senior Arbitrator’s consideration of that evidence involves an error and asserts that it is entirely appropriate that the Senior Arbitrator weigh the evidence, which she did carefully. The respondent asserts that the Senior Arbitrator’s consideration of that evidence and the weight she afforded it involves no error and her ultimate conclusion was entirely consistent with that evidence in the context of the appellant bearing the onus of proof.
Ground Three: error of fact in placing weight upon Dr Bodel not having access to the earlier x-rays or scans or being aware of the injury suffered by the appellant in 2015
The appellant’s submissions
The appellant concedes that Dr Bodel did not have access to the radiological evidence but submits that in any event, Dr Bodel was of the view that the appellant may well have aggravated a pre-existing condition, which was correct. The appellant asserts that, having formed that view, a review of the radiological evidence, in all probability, would not result in Dr Bodel changing his opinion and would have confirmed that his opinion was in fact correct. The appellant says that Dr Bodel’s opinion was that the appellant suffered an injury on 25 June 2018 which gave rise to the need for the surgery to the right hip.
The appellant maintains that the issue to be determined was whether or not the pre-existing right hip condition had been aggravated. The appellant points out that by February 2019, the appellant was experiencing severe right hip pain when the MRI scan dated 8 February 2019 was performed. The appellant says that even prior to that, on 6 August 2018, Dr Nabavi expressed the opinion that the appellant required injections to relieve severe discomfort in both hips.
The appellant asserts that, given she was accepted as a witness of truth, her evidence, and the evidence of both Dr Bodel and Dr Powell, was sufficient to explain why she experienced increasing right hip pain. The appellant submits that it would be difficult to come to any other conclusion. The appellant further submits that the respondent’s submission that Dr Bodel’s opinion should not be accepted relies upon the absence of evidence, which, if available, would simply confirm Dr Bodel’s assumption. The appellant maintains that the Senior Arbitrator’s acceptance of the respondent’s submission constitutes an error of fact.
The respondent’s submissions
The respondent submits that it is clearly and unequivocally relevant that Dr Bodel did not have access to the radiological investigations, particularly the earlier investigations which were relevant in terms of the weight to be given to Dr Bodel’s report. The respondent asserts that the deficiencies in Dr Bodel’s report were sufficient to enable the Senior Arbitrator to decline to afford this evidence any weight and it was appropriate for the Senior Arbitrator to do so.
Ground Four: error of fact in considering that the views of Dr Powell on causation should not be accepted because of a lack of knowledge concerning earlier complaints of right hip pain and lack of such a complaint to Dr Li immediately following her injury
The appellant’s submissions
The appellant submits that Dr Powell:
(a) was aware that the appellant suffered from bilateral hip dysplasia which could become symptomatic;
(b) was also aware that the that the appellant fell from a horse on 25 June 2018 and from that time the appellant complained of right hip pain;
(c) considered that there may have been a right hip injury at the time of the fall, and
(d) explained why the appellant remained symptomatic in the right hip after the incident.
The appellant submits that the explanation was that the appellant may have suffered a local trauma in the incident, which may have extended the labral degeneration, or one of the joints may have been stimulated. The appellant submits that the Senior Arbitrator relied heavily on the fact of the absence of mention by the appellant of her prior symptoms in her statement and to Dr Bodel and Dr Powell. The appellant refers to the Senior Arbitrator’s observation that Dr Powell was not aware that Dr Li’s clinical note recorded on the day after the injury did not mention right hip pain. The appellant submits that the Senior Arbitrator did not take into account that the appellant complained to Dr Li of severe low back pain, which might easily have masked symptoms in the right hip.
The appellant further submits that, in the context of the appellant experiencing right hip pain from the time of the fall, and her fitness to ride prior to the injury, it is doubtful that Dr Powell’s opinion would have been any different. The appellant says that the existence of pain some years beforehand would have hardly been surprising to Dr Powell.
The appellant concludes that, in any event, considering:
(a) that inaccuracy in a general practitioner’s clinical notes is a frequent occurrence;
(b) the effect of the appellant’s earlier brain injury;
(c) the absence of any attack on the appellant’s credibility;
(d) the contemporaneous complaint of right hip pain to Dr Nabavi in August 2018, and
(e) a credible explanation for the appellant’s right hip pain,
the Senior Arbitrator’s evaluation of the evidence was incorrect, which amounted to an error of fact.
The respondent’s submissions
The respondent observes that it is difficult to understand the precise nature of the complaint made under this ground of appeal. In this context, the respondent submits that it is important to note the Senior Arbitrator’s concerns about the medical evidence. Those concerns included the fact that Dr Bodel did not have access to the radiological investigations, the MRI scan discussed by Dr Nabavi pre-dated the scan of 8 February 2009 and the fact that neither Dr Powell nor Dr Bodel had the benefit of the treating medical evidence.
The respondent maintains that the concerns are relevant in the light of the fact that the appellant bears the onus of proving her case. The respondent submits that the appellant is seeking to re-run her case on appeal.
Ground Five: error of fact in stating that it was very difficult for the Senior Arbitrator, on the basis of the evidence from Dr Nabavi, to make a sound finding as to the nature of the injury on 25 June 2018
The appellant’s submissions
The appellant asserts that the Senior Arbitrator had available to her the medical evidence, including the various radiological investigations, which was sufficient evidence for the Senior Arbitrator to be satisfied as to the cause of the appellant’s right hip disability. The appellant submits that, in his report dated 6 August 2018, Dr Nabavi said that the appellant was a candidate for injections to address the appellant’s significant discomfort in both hips. The appellant says that this was supporting evidence that the appellant was experiencing pain in her right (and left) hip at that time. The appellant adds that Dr Nabavi also reported that the appellant was suffering from increased pain in the hip since the fall but did not specify which hip.
The appellant submits that the Senior Arbitrator also had before her evidence from both Dr Powell and Dr Bodel as to the probable nature of the aggravation to the appellant’s pre-existing condition. The appellant says that it is rare for there to be evidence of the precise pathological nature of injury in the form of an aggravation of degenerative changes.
The appellant asserts that, in the context of the appellant’s evidence that she experienced increased pain after the incident, which was not directly challenged, and the serious nature of the incident on 25 June 2018, it is difficult to conclude other than that the appellant aggravated the degenerative change in the right hip in the incident.
The respondent’s submissions
The respondent considers that the submissions made under this ground are merely re-statements of the submissions already made. The respondent asserts that the submissions make clear the difficulties pointed out by the Senior Arbitrator in her deliberation of the issues in dispute. The respondent submits that the evidence available to the Senior Arbitrator was not sufficient to enable the appellant to discharge the onus of proof and the Senior Arbitrator’s factual findings were not only open to her but were entirely consistent with the evidence.
Ground Six: error of fact in the Senior Arbitrator’s finding that she could not make a “common-sense” evaluation of the causal chain because key information was missing
The appellant’s submissions
The appellant accepts that the issues to be determined should not be determined on the basis of common-sense alone and a careful analysis of the evidence was required. The appellant maintains that the “key” is that the appellant was accepted as a witness of truth and there was no attack by the respondent on her credibility.
The appellant refers to the manner in which the case was run at arbitration and asserts that the respondent’s approach was that there was a lack of right hip complaint recorded immediately after the injury. The appellant says that it was not submitted that the appellant’s evidence that she had experienced right hip pain since the injury should not be accepted, or that the appellant was being untruthful. The appellant submits that, adopting a common-sense approach, the uncontradicted evidence should have been a guide to the evaluation of post-injury evidence. The appellant says that, on a common-sense basis, this was clear evidence that the appellant’s right hip pain originated from the incident on 25 June 2018 and continued.
The appellant submits that Dr Nabavi’s reference to right hip pain in August 2018 could be considered contemporaneous evidence. The appellant concedes that the evidence may well suggest that Dr Nabavi was seeing the appellant in respect of left hip pain, but the appellant was also complaining of right hip pain, sufficient to warrant treatment of the right hip in the form of injections. The appellant submits that, despite the lack of immediate reference to the right hip in Dr Li’s clinical entry on the day following the injury and in the material in relation to the claim, there was evidence from the appellant that she was experiencing right hip pain at the time. Further, there was an explanation and credible reason for the pain given by Dr Powell, and also Dr Bodel.
The appellant maintains that she suffered from increased right hip pain after the injury on 25 June 2018 and there was no other explanation available for that pain other than that she had aggravated the pre-existing condition in her right hip. The appellant submits that the most compelling cause for the increase in pain was the fall occurring on 25 June 2018.
The appellant finally submits that the Senior Arbitrator’s decision was influenced by error in that the decision was inconsistent with incontrovertibly established facts. That is, that the appellant was not challenged in respect of her complaint of right hip pain commencing from the time of the injury and was noted by Dr Nabavi to have significant symptoms in her right hip in early August 2018. The appellant maintains that it was an error of fact not to evaluate the evidence which drew a causal link in a “common-sense” way between the injury on 25 June 2018 and the appellant’s right hip pain requiring the surgery recommended by Dr Nabavi.
The respondent’s submissions
The respondent submits that it appears that the appellant is asserting that if she is a witness of truth, that of itself is sufficient to satisfy the onus of proof on a “common-sense” evaluation. The respondent contends that there is no proper basis for the submission, and it does not identify a proper ground of appeal.
The respondent submits that the determination of injury does not simply require the identification of an incident, it requires the identification of an incident and the pathology arising from it. The respondent says that the Senior Arbitrator properly determined that evidence which was capable of discharging the onus was not adduced and that the appellant had failed to discharge the onus of proof of injury to the right hip. It was further open to the Senior Arbitrator to conclude that it was not possible for her to determine that the proposed surgery to the right hip resulted from any injury on 25 June 2018.
THE RELIEF SOUGHT
The appellant seeks to have the Senior Arbitrator’s decision revoked and in substitution thereof an order made that the right hip replacement is reasonable medical treatment that resulted from the injury to the right hip in the course of the appellant’s employment on 25 June 2018.
The respondent asks for the appeal to be dismissed.
CONSIDERATION
An appeal to a Presidential member from a decision of an arbitrator is provided for in accordance with s 352(1) of the 1998 Act. Section 352(1), however, places limitations on decisions that may be appealed. It provides that:
“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.”
That is, the appeal is limited to the identification of error of the type provided for and the power of the Presidential member determining the appeal is limited to the correction of any established error. The appellant in this case alleges various errors of fact in the Senior Arbitrator’s decision-making process.
In Northern NSW Local Health Network v Heggie,[20] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[21]
[20] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[21] Heggie, [72].
The respondent relies on the decision of Roche DP in Raulston. In that decision Roche DP summarised the principles set out in Whiteley Muir & Zwanenberg Ltd v Kerr,[22] which he considered were equally applicable to appeals in the Commission. Those principles were identified as:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[23]
[22] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[23] Raulston, [19].
In the decision of Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, Allsop J (as his Honour then was) (Drummond and Mansfield JJ agreeing) made the following observations about the need to establish error:
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[24]
[24] [2001] FCA 1833, [28].
Those principles have been followed in numerous cases in the Commission, and in Workers Compensation Nominal Insurer v Hill,[25] Basten JA, considering the principles enunciated in Whiteley Muir, observed:
“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).”[26]
[25] [2020] NSWCA 54 (Hill).
[26] Hill, [20].
It is therefore appropriate and necessary to apply those principles in the determination of this appeal.
Ground One: error of fact in finding that the incident relied on was quite similar to that referred to by Dr Jordan in 2015
The appellant asserts that her truthfulness was not questioned and her evidence that she suffered from pain in her right hip from the time of the injury was not challenged.
A review of the transcript of the arbitration proceedings confirms that the respondent submitted that the history given by the appellant should be treated with a degree of caution. The respondent submitted at length on the histories recorded by the treating doctors and the contemporaneous documents and pointed out the inconsistencies between that evidence and the evidence of the appellant, including the past history provided to Dr Bodel.
In the context of the acceptance or otherwise of the appellant’s evidence, the Senior Arbitrator reasoned as follows:
“The respondent submitted that Ms Candy’s statement is brief and her evidence needs to be treated with caution due to the sequelae of her prior head injury. I accept this submission. It seems clear from the medical history taken by Dr Powell that Ms Candy has some memory problems. Dr Bodel also refers to her having suffered from brain damage in 2013. I am concerned that Ms Candy makes no mention of the prior right hip problem, which is referred to in Dr Jordan’s report. The fall described by Dr Jordan occurred in 2015 and the circumstances surrounding it are quite similar to that described by her in 2018. Dr Jordan describes the 2015 fall as involving ‘a horse reared on its hind legs and threw her off the horse onto her back and the horse landed on top of her’.
Ms Candy in her statement says between the fall on 20 April 2013 and 25 June 2018 she had a number of falls, none of which were serious. She adds that ‘this was the first time I have had a very serious injury to my right hip.’ However, she does not refer to the fall in 2015 which caused her to be referred to a specialist, Dr Jordan, and have physiotherapy and receive a referral for a right hip MRI. Furthermore, Dr Nabavi obviously saw her before the fall on 25 June 2018 for her right hip because Dr Nabavi stated to Dr Li in his report dated 6 August 2018 that he saw her previously with right sided hip pain as a result of labral pathology and dysplasia.
Therefore, I accept I do have to treat Ms Candy’s evidence cautiously. By making such a finding I am not suggesting she has been dishonest, but that relevant information about her medical history has not been covered in her statement.”[27]
[27] Candy v MC Connor Racing Pty Ltd [2020] NSWWCC 2 (reasons), [51]–[53].
The appellant’s assertion that her evidence that she suffered from pain in her right hip from the time of the injury was not challenged cannot be accepted. There was a clear challenge as to the reliability of that evidence expressed by the respondent in submissions to the Senior Arbitrator. That challenge was based upon the combination of the brevity of the appellant’s statement, the appellant’s poor memory for detail, which was consequent on the earlier brain injury, and the inconsistency between the appellant’s assertions and the medical and other documentary material in evidence. It must be borne in mind that there is a difference between credit findings and reliability findings.[28] The Senior Arbitrator explicitly stated that she was not suggesting that the appellant was being dishonest. That is, she did not make an adverse finding in respect of the appellant’s credit. However, it was clearly available to the Senior Arbitrator to consider the appellant’s statement evidence as unreliable and look to where the appellant’s evidence sat in the context of the overwhelming contradictory evidence. A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence.[29]
[28] Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63, [64].
[29] Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [110]–[112].
The appellant submits that the Senior Arbitrator’s observation that the 2015 injury was similar in description to the 2018 injury was an error. The appellant asserts that this error ‘infected’ the Senior Arbitrator’s conclusion.
The appellant’s statement described the injury on 25 June 2018 in the following terms:
“I was thrown off the horse and managed to get up uninjured and then got back on the horse and was thrown off a second time. On that occasion the horse fell on me. I got out from under the horse but I had pain in my back and right hip.”[30]
[30] Appellant’s statement, ARD, p 1, [3].
The appellant confirmed that the history recorded by Dr Bodel was correct. Dr Bodel recorded:
“She was thrown off the horse and managed to get up uninjured. She then got back on the horse and was thrown off a second time. On that occasion the horse fell on her.”[31]
[31] Dr Bodel’s report, p 3, ARD, p 20.
Dr Jordan, in his report dated 13 May 2015 took the history that:
“Three months ago a horse reared on its hind legs and threw her off the horse onto her back and then the horse landed on top of her.”[32]
[32] Dr Jordan’s report, p 1, AALD, p 11.
In contrast, on 26 June 2018 Dr Li recorded the injury as having occurred when the appellant was thrown twice and may have been trodden on by the horse,[33] and the claim form informed that the injury occurred when the appellant fell off a horse and was trampled.[34]
[33] AALD, p 7.
[34] ARD, p 4.
There are discrepancies in the reports of how the injury occurred, but it cannot be said that the Senior Arbitrator was wrong in observing that the horse falling on the appellant (as asserted by the appellant in her statement and reported to Dr Bodel) was a similar description to that of the horse landing on top of the appellant, as recorded by Dr Jordan in 2015.
In any event, the Senior Arbitrator’s observation was not a finding, and it is not apparent from the appellant’s submissions how the observation is said to have infected the Senior Arbitrator’s ultimate decision.
It follows that this ground of appeal fails.
Ground Two: error of fact in placing weight on the appellant not having mentioned in her statement that she had an earlier fall and that she had consulted Dr Jordan in 2015 for right hip pain
The appellant submits that it is irrelevant that the appellant did not disclose the 2015 injury in her statement. It is noted that, not only did the appellant fail to mention that injury in her statement, the appellant also denied any prior history of right hip problems to Dr Powell and failed to bring the 2015 injury to the attention of both Dr Bodel and Dr Powell. The appellant’s right hip was, according to the relatively contemporaneous evidence of Dr Jordan, injured in the 2015 incident.
The injury in 2015 required treatment in the form of specialist intervention and injections and radiological investigation. Those matters are indications that the right hip condition was to some degree serious, contrary to the appellant’s assertion that she had had no previous “serious” hip injury.
Whether the appellant suffered an injury to her right hip in the 2018 injury was in issue. It is unremarkable that the injury was pleaded as an aggravation of a disease. The relevance of having not provided the history of the 2015 injury was that the Senior Arbitrator, having treated the appellant’s evidence with caution, was tasked with finding sufficient evidence to establish that an injury to the right hip occurred in 2018, regardless of whether it was an aggravation of a pre-existing condition.
As the respondent submits, the two medico-legal specialists, who were tasked with providing an opinion as to whether the need for the surgery was causally related to an alleged right hip injury in 2018, were not appraised of a full history, including the history of an earlier documented injury to the right hip. The absence of a correct history can be, and was in this case, fatal to the acceptance of the evidence from those specialists. The absence of that evidence was important to the conclusions reached by the specialists in respect of causation and the need for surgery. The Senior Arbitrator’s consideration of the weight to be afforded to the evidence of the two specialists in the absence of that evidence was an important consideration as to whether the conclusions reached by the specialists in respect of causation and the need for surgery were soundly based.
The appellant’s assertion that there was an absence of complaints relating to the right hip immediately prior to the 2018 injury cannot be accepted. There is no cogent evidence to that effect. The clinical notes for the period from 25 November 2014 and 6 June 2018 were not in evidence. It is clear from the report of Dr Jordan in 2015 that during that period, the appellant did complain of right hip symptoms. At some stage prior to the 2018 injury Dr Nabavi treated the appellant for right hip symptoms. There is no evidence to support or refute that the appellant was symptom free in the right hip “immediately” prior to the 2018 injury.
It follows that Ground Two of the appeal also fails.
Ground Three: error of fact in placing weight upon Dr Bodel not having access to the earlier x-rays or scans or being aware of the injury suffered by the appellant in 2015
I have already discussed the relevance of Dr Bodel having an incorrect history.
The appellant submits that the question to be determined was whether the appellant aggravated her right hip condition in the pleaded injury. The appellant points to the MRI scan undertaken on 8 February 2019 and the need for injections in the right hip, as reported by Dr Nabavi in his report dated 8 August 2018. The appellant says that she was a witness of truth, and her evidence, together with the evidence of Dr Bodel and Dr Powell was sufficient to explain her right hip pain. The appellant says that if Dr Bodel had viewed the radiological evidence he would have reached the same conclusion.
The Senior Arbitrator explained her reasons as to why the radiological investigations would have been of assistance. Dr Bodel commented that:
“In part, the injury on 25 June 2018 may well have been an aggravation, acceleration, exacerbation and deterioration of an underlying disease process, being some early degenerative change but I have not had the opportunity to review the x-rays or scans to be able to determine that. There certainly was a frank injury on that day, the nature of which is difficult to determine, again, without the x-rays but I suspect that there was at least a labral tear and possibly some other fracture, although I have not seen that reported.”[35]
[35] Dr Bodel’s report, p 7, ARD, p 23, [2].
It is clear from that passage that Dr Bodel himself considered that, for the purpose of determining whether a pre-existing condition had been aggravated and the nature of that injury, he would have been better informed if he had been provided with the radiological investigations. Dr Bodel suspected a labral tear and “possibly some other fracture.” There was no fracture. The MRI scan of the right hip dated 8 February 2019 disclosed a complex tear of the labrum.[36] At a consultation with Dr Huynh on 26 June 2014, Dr Huynh noted that the appellant was due for an osteoplasty and labral repair.[37] An MRI scan of the right hip was performed on 13 May 2014.[38]
[36] Reply, p 13.
[37] AALD, p 10.
[38] AALD, p 5.
The importance of having reviewed the complete radiological picture is apparent. The appellant alleged an aggravation of the disease condition in her right hip. While the post injury investigation showed a labral tear, as speculated by Dr Bodel, it is by no means clear that that pathology arose as a consequence of the injury in June 2018 or whether it was pre-existent. That was a question to be answered by a properly informed medical expert and Dr Bodel was not properly informed.
It was clearly open to the Senior Arbitrator to consider that factor, which was one of several factors, in the weight to be afforded to Dr Bodel’s opinion. Ground Three of the appeal fails.
Ground Four: error of fact in considering that the views of Dr Powell on causation should not be accepted because of a lack of knowledge concerning earlier complaints of right hip pain and lack of such a complaint to Dr Li immediately following her injury
The appellant again raises the absence of any challenge to her credibility. That contention is discussed above.
The appellant asserts that Dr Powell was aware that the appellant had experienced right hip pain since the 2018 injury. That was the history provided to Dr Powell, but it was not the history born out in the treating medical evidence. The correct history was very relevant to the question of whether there had been an aggravation of the appellant’s hip condition. Further, the Senior Arbitrator not only took into account the absence of knowledge of earlier complaints, and a failure to complain of right hip pain to Dr Li, but also gave consideration to the referral from Dr Li to Dr Nabavi, which was in respect of left hip pain, as well as the appellant’s poor recall.
The appellant once again expresses the view that it would be doubtful that, had Dr Powell been appraised of the evidence of prior symptoms, his opinion would probably have changed. With respect, whether Dr Powell would have remained of the same opinion as to whether the appellant’s hip condition was aggravated or further aggravated in the injury on 25 June 2018 is very much a matter for that medical expert to say, after a consideration of the whole of the evidence. The appellant’s submission on this point is speculative.
The appellant’s submission that the presence of significant lower back pain following the 2018 injury might well have masked the right hip pain is somewhat inconsistent with the appellant’s submission that the appellant suffered right hip pain from the outset and is also speculative. There is no evidence from the appellant or elsewhere that this was the case.
The appellant’s reliance on the frequent inaccuracies in the notes taken by busy practitioners was addressed by the Senior Arbitrator and rejected. The Senior Arbitrator explained that she had carefully reviewed the clinical notes and noted that the appellant’s claim form did not mention the right hip. The Senior Arbitrator concluded that, in this case, she could not be satisfied that complaints of right hip pain were probably omitted from the clinical notes. She did so in the context of all of the available medical evidence from the treatment providers.
The appellant puts forward the Senior Arbitrator’s evaluation of the evidence was incorrect because of:
(a) an inaccuracy in a general practitioner’s clinical notes is a frequent occurrence;
(b) the effect of the appellant’s earlier brain injury;
(c) the absence of any attack on the appellant’s credibility, and
(d) the contemporaneous complaint of right hip pain to Dr Nabavi in August 2018.
The Senior Arbitrator took into account the effect of the appellant’s brain injury, which caused her to look to other evidence to establish what injury occurred. The complaints of right hip pain to Dr Nabavi in August 2018 were made in the context of the appellant having been referred in respect of left hip pain following the fall in June 2018. The fact that there was also a complaint of right hip pain, which had been the subject of complaint to Dr Nabavi prior to the 2018 injury, is not of itself probative evidence that the injury on 25 June 2018 was causative of those symptoms.
In accordance with the principles established in Whiteley Muir, as summarised by Roche DP in Raulston, the Senior Arbitrator, though not basing her findings on credit, preferred one view over another of the primary facts. In order to disturb the Senior Arbitrator’s finding, other probabilities must be so preponderant that the Senior Arbitrator’s conclusion must have been wrong. The opinion of Dr Powell was based on an inaccurate premise and was arrived at without the benefit of a complete medical history on the background of a complex, longstanding, hip condition. On that basis, the Senior Arbitrator concluded that she could give no weight to Dr Powell’s opinion. That conclusion was available to her on the evidence. There was no preponderance of evidence that would indicate that the opposite inference should have been drawn.
It follows that Ground Four of the appeal fails.
Ground Five: error of fact in stating that it was very difficult for the Senior Arbitrator, on the basis of the evidence from Dr Nabavi, to make a sound finding as to the nature of the injury on 25 June 2018
The appellant submits that there was sufficient medical evidence to satisfy the Senior Arbitrator as to the cause of the appellant’s right hip disability. The appellant points to:
(a) the evidence from Dr Nabavi that the appellant was suffering pain in her right hip, as well as her left hip, in August 2018;
(b) Dr Nabavi reported increased pain in the hip, although did not specify which hip;
(c) the evidence from Dr Powell and Dr Bodel about the probable nature of the aggravation;
(d) the appellant’s own evidence that she experienced right hip pain following the fall, and
(e) the serious nature of the incident on 25 June 2018.
The Senior Arbitrator appropriately rejected the opinions of Dr Powell and Dr Bodel. The Senior Arbitrator found the appellant’s evidence unreliable and that finding was open to her. The evidence from Dr Nabavi does not assist in respect of the question of causation. The serious nature of the injury cannot be questioned, but the injury sustained in that incident was in issue and required sufficient proof to establish the occurrence of that injury as a fact.
The Senior Arbitrator’s finding that Dr Nabavi’s evidence did not assist and that it was difficult to make a sound finding as to the nature of the injury was available to her on the state of the evidence. Ground Five of the appeal also fails.
Ground Six: error of fact in the Senior Arbitrator’s finding that she could not make a “common-sense” evaluation of the causal chain because key information was missing
The appellant once again relies on the assertion that the appellant was a witness of truth and there was no attack on her credibility. The appellant asserts that this was the “key’ to establishing that the right hip pain originated from the injury on 25 June 2018. The appellant again refers to the evidence of Dr Nabavi, Dr Powell and Dr Bodel as probative and credible evidence to explain the appellant’s right hip pain originated from the incident. The appellant says that there was no other explanation for the right hip pain. The appellant submits that these were incontrovertible facts that were inconsistent with the Senior Arbitrator’s conclusion so that the Senior Arbitrator was in error. The appellant says that these facts establish a common-sense causal link between the injury on 25 June 2018 and the right hip complaints.
Once again, the appellant’s credibility and the probative value of the evidence from Dr Nabavi, Dr Powell and Dr Bodel has been discussed above. There were no contrary incontrovertible established facts and there was acceptable evidence that the appellant’s right hip symptoms were longstanding. Another explanation for the right hip pain could have been the injury to the right hip in 2015. There was no established error in the weight the Senior Arbitrator placed on that evidence and she provided proper reasons for reaching her conclusions in that regard.
Ground Six of the appeal fails.
CONCLUSION
All of the grounds of appeal brought by the appellant fail. There is no allegation that the Senior Arbitrator erred in law in the application of the relevant authorities on causation. The weight to be afforded to and acceptance of the evidence was a matter for the Senior Arbitrator and the appellant has not established error of the kind described in Raulston. There is no basis upon which the Senior Arbitrator’s decision should be disturbed, and the appeal fails.
DECISION
The Senior Arbitrator’s Certificate of Determination dated 6 January 2020 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
7 July 2020
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