CAR v Vanguarde Pty Ltd
[2025] NSWPICPD 25
•25 March 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | CAR v Vanguarde Pty Ltd [2025] NSWPICPD 25 |
APPELLANT: | CAR |
FIRST RESPONDENT: | Vanguarde Pty Ltd |
SECOND RESPONDENT: | BME Group Pty Ltd |
INSURER: | Employers Mutual NSW Ltd |
FILE NUMBER: | A1-W782/24 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 25 March 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 29 April 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Factual error within the meaning of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998: Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; weight of medical opinion: application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505; credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403; inferences – Luxton v Vines [1952] HCA 19; 85 CLR 352 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr G Horan, counsel | |
| Turner Freeman Lawyers | |
| First and Second Respondents: | |
| Mr G Forster, solicitor | |
| Bartier Perry Lawyers | |
DECISION UNDER APPEAL: | CAR v Vanguarde Pty Ltd [2024] NSWPIC 214 |
MEMBER: | Ms C Rimmer |
DATE OF MEMBER’S DECISION: | 29 April 2024 |
INTRODUCTION AND BACKGROUND
CAR (the worker/appellant) worked for Vanguarde Pty Ltd (the first respondent/Vanguarde) as a senior property manager from about 17 June 2017 to 1 December 2017. The worker worked with BME Group Pty Ltd (the second respondent/BME) from March 2018 performing similar duties, which are alleged to have had a similar aggravating effect on pre-existing degenerative disease. The deemed date of injury with BME is alleged to be 20 November 2018.[1]
[1] CAR v Vanguarde Pty Ltd & Ors [2024] NSWPIC 214 (reasons), [1]–[3].
In the current proceedings the worker alleges that he injured his cervical spine (with radiating symptoms to his upper extremities) due to aggravation of degenerative disease, occasioned by “long hours sitting at a desk using a mouse and keyboard with ergonomically poor work stations”. The worker had earlier proceedings against Vanguarde (No. 4934/19 in the former Workers Compensation Commission of NSW) relating to psychological injury alleged to result from the same period of employment. These earlier proceedings resolved on 22 November 2019 when they were listed for hearing before a Commission arbitrator. There was a consent award in the amount of $20,000 inclusive of medical expenses. The worker gave admissions that he had received all his entitlements to weekly compensation and medical expenses and was fully recovered from the effects of employment injury with Vanguarde. Within two days of this resolution the worker sought a reconsideration of these orders. A Commission arbitrator on 31 August 2020 refused to reconsider the consent orders. The worker then lodged a Presidential appeal against the decision refusing the reconsideration. This was dealt with by Deputy President Wood, who issued a decision dated 9 December 2020 in which she confirmed the arbitral decision dated 31 August 2020.[2]
[2] CAR v Vanguarde Pty Ltd [2020] NSWWCCPD 71, [7].
The worker made a claim against Vanguarde on 4 March 2020 in respect of injury to the wrists and hands. A report from Dr New, an orthopaedic surgeon qualified by the worker’s solicitors, dated 14 May 2021, diagnosed “radicular pain bilaterally in the C7 nerve root distribution”. The worker claimed against BME on 20 February 2023, in respect of the neck, shoulders, wrists, right elbow, low back and bilateral leg pain. The worker, in the current proceedings, claims weekly benefits and medical treatment, including the cost of surgical discectomy and fusion at C5/6/7 recommended by Dr Khong.[3]
[3] Reasons, [4]–[7].
The current matter was listed for hearing on 4 April 2024. Mr Horan, barrister appeared for the worker and Mr Gaitanis, barrister appeared for both respondents. Due to the operation of cl 44 of the Workers Compensation Regulation 2016 Mr Horan was required to elect between reliance on the expert opinion of either Dr Singh or Dr New. He elected to rely on Dr Singh’s report, Dr New’s report was to be considered only on the issue of delay. There was agreement that the worker’s ‘pre-injury average weekly earnings’ were as alleged in the Application to Resolve a Dispute (the ARD) and that the cervical spine surgery proposed by Dr Khong was reasonably necessary. The injury relied on was presented as one involving “aggravation of degenerative cervical spine disc disease” with radiation to the upper extremities. The allegation of injury to the back was withdrawn.[4]
[4] Reasons, [9], [12], [19].
The respondents were granted leave to cross-examine the worker, limited to the question of ‘delay’.[5] The worker was cross-examined and briefly re-examined.[6] Both counsel addressed and the Member reserved her decision. The Commission issued a Certificate of Determination dated 29 April 2024. There was an award in favour of both respondents.
[5] Transcript of evidence, 4/4/24 (T), T 4.20–5.6.
[6] T 6.27–47.3.
THE MEMBER’S REASONS
The Member summarised statements of the worker dated 15 September 2021, 24 January 2023, 23 January 2024 and 15 March 2024. The worker stated that at the commencement of his employment with the first respondent as a full-time senior property manager (on 14 June 2017) there were five full-time employees. His job was to manage staff (who he said were inexperienced and made careless mistakes) and to oversee the department. He stated that after six weeks five staff were terminated and not replaced. The worker said he obtained new business, attended to landlord enquiries, showed tenants properties, did property inspections and did “ingoing” reports for new tenants. He handled repairs and maintenance, insurance claims, payment of disbursements, rent receipting and trust reconciliation. He stated he was at his desk all day, on the phone and at his computer. He said he was on the phone, clicking the mouse and typing for 12 hours per day. He took calls resting the phone on his shoulder as no headsets were provided. He said he worked six days per week. The worker said that from immediately after commencing he noticed aching in his neck, back and hands. He “assumed it was because [he] was mentally exhausted”.[7]
[7] Reasons, [20]–[24].
The worker said his general practitioner for over 15 years was Dr Ozser. He complained to the doctor of “major depression and work stress”, but also “the strain and aches it was causing on his body”. He said his “previous psychological injury gravely affected him and ‘masked’ the pain to his neck, back, shoulders and radiating pain to his legs”. The worker said his injury “progressively got worse”. He said: “my symptoms were ignored by me due to embarrassment of state of confusion until I sought medical advice”. He said he “reported the injury to Dr Ozser ‘each time I have seen him’, even during his employment with the first respondent”. He stated it was only when he obtained a “second medical opinion from Dr Eric Lim regarding his injuries that he understood ‘the seriousness and gravity of impact it had on my body and the long term effects of the work ergonomics’.”[8]
[8] Reasons, [26]–[30].
The worker referred to allegations made by Timothy Breckell, that the worker “had instigated the situation so that staff were made redundant and the [worker] took over their work in order to ‘steal money and defraud the company without direct overwatch’.” The worker said, “the fraud was found to be untrue … as a result of his work and pressure he was exhausted and making errors”. He said: “The matter was taken to court and the Judge found that I did not do anything wrong. I was given a conviction for misappropriation of funds. Nothing was stolen.” He stated that “he never stole from the first respondent and the money was misappropriated because he was tired and making mistakes”.[9]
[9] Reasons, [31], [37].
The Member referred to the worker’s statement where he said that “on 2 March 2021, he consulted Worker’s Doctors” and was given a referral to Dr Khong.[10] The Member referred to the worker’s statement dated 23 January 2024, in which he referred to commencing with BME on 16 April 2018. His job was to assist the building manager at Maestri Towers. He looked after the front desk and was a “point of contact for tenants”. He was required to maintain and check the roof top area, at the end of his shift he examined the 25 levels of each building, identifying any issues. He also inspected external areas, rooftops, the underground carpark, garbage rooms and elevators, identifying any irregularities. The worker said he left this job 20 November 2018 because he was not coping. He felt overwhelmed, his body ached everywhere, he was tired, depressed and could not concentrate.[11]
[10] Reasons, [40].
[11] Reasons, [42]–[44].
The Member referred to the worker’s statement dated 15 March 2024. He was dismissed by Vanguarde on 1 December 2017 and saw Dr Ozser on 8 December 2017, in shock, feeling remorse and shame. He felt overwhelmed. His stress worsened when he was charged with misappropriation in October 2018. He said he continued to feel pain and restricted movements but “thought it was due to stress and exhaustion”. The worker referred to his claim relating to psychological symptoms, which the insurer initially accepted on the basis of provisional liability and then declined on 4 April 2019. The worker referred to his initial proceedings in the Workers Compensation Commission which resolved on 26 November 2019. He said he was not happy with the outcome but felt overwhelmed and was pressured by his solicitors.[12] He referred to treatment by two rheumatologists, Dr Baume and Dr Browne, in 2019 to 2020.[13] The worker consulted his current solicitors from 1 April 2020 and completed a further claim form online on 4 March 2020. The worker said he did not know there were time frames to be considered. He first reported the injury in November 2018, the new claim form was clarifying the physical diagnosis.[14]
[12] Reasons, [48]–[49].
[13] Reasons, [51]–[53].
[14] Reasons, [54]–[56].
The worker said he saw a new general practitioner, Dr Lim, from 2 March 2021. Dr Lim arranged a cervical MRI scan that showed degenerative disc disease. The worker said this was the first time he was aware the injuries to his spine, shoulders, right elbow and chronic pain were due to the nature of his work. He was referred to Dr Khong who recommended discectomy and fusion at C5/6 and C6/7.[15]
[15] Reasons, [46]–[47], [58]–[59].
The worker stated that his barrister, in the earlier Commission proceedings in 2019, recommended he make a claim against BME.[16]
[16] Reasons, [62].
The Member quoted at some length from the worker’s evidence at the hearing on 4 April 2024.[17]
[17] Reasons, [63].
The Member dealt with the evidence, in a statement dated 4 November 2022, of Mr Breckell, the owner and managing director of Vanguarde. Mr Breckell said the worker was coming in late regularly. This “put extra pressure on him to stay back.” Mr Breckell said he actioned the hiring of more staff to assist the worker. He appointed a general manager in October 2017 and an Assistant Property Manager to assist with managed properties. He described the office as “superb”. He denied the worker worked 12 hours per day or 6 days per week. He said the worker “hardly ever worked a Saturday”. He denied that the worker had to do any accounting for the business. Mr Howell attended one day per week as office accountant, and “Belle Partners” did the accounts. Mr Breckell said the office was stocked with ergonomic chairs and a chair with lumbar support, the office was in “outstanding condition”, renovated, there were new computers and IT. Nobody else complained about their workstation. Mr Breckell said the worker never complained about his neck, back or upper limbs, he did not complain about the equipment or work area. He described the worker’s statements as “completely false”.[18]
[18] Reasons, [67]–[84].
The Member summarised a statement from Shawn Howell, a principal of an accounting firm that worked at the office during the worker’s employ. His statement was generally supportive of Mr Breckell’s position. The office was of a high standard, equipment was updated. He too said the worker was often late in the mornings and would work past 5.30 pm to make up for lost time. The worker used the property management software to perform his job.[19]
[19] Reasons, [85]–[93].
The Member referred to a statement by Wayne James, who worked with an IT company associated with the first respondent. He said the office was clean and tidy, with a surplus of spare mouses and keyboards. He could not recall anyone ever asking for a headset. Ergonomic equipment was provided if requested. He heard no staff complaints about workstations or equipment.[20]
[20] Reasons, [94]–[98].
The Member summarised a statement from Jeannette Dangelico, who worked with the first respondent as general manager from October 2017 to February 2018. The worker was dismissed five weeks after she started there. She was his manager. She said he was often out of the office at inspections and the like. She stated that computer equipment was functional and in working order. The worker never worked 12 hour days. The office was in good condition. Ms Dangelico said she was usually the last to leave. The worker never worked Saturdays, he was not in at 8am nor did he leave at 10pm. She said telephone calls were usually answered by Peach at the Kent Street office, not by the worker. She said the worker was not privy to any accounting software, he was only privy to REST (for property management). She said there were no issues regarding office equipment. She described the worker as “difficult and disruptive to work with” and also referred to his “misappropriation of trust account funds”.[21]
[21] Reasons, [99]–[108].
The Member summarised the medico-legal reports from Dr New, Dr Singh and Dr Lee.[22] She summarised the treating notes and records from Dr Ozser, the worker’s general practitioner, from 8 December 2017 to 31 August 2021.[23] She summarised the reports from Dr Ozser, Dr Baume and Dr Browne, both treating rheumatologists, Dr Lim, general practitioner, and Dr Khong, neurosurgeon.[24]
[22] Reasons, [111]–[123].
[23] Reasons, [124].
[24] Reasons, [125]–[153].
The Member dealt with the issues regarding ‘notice’ and ‘claim’ (ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) by referring to Presidential decisions of Fleming DP (Way v Newcastle City Council[25]) and Moore ADP (Inghams Enterprises Pty Ltd v Auddino[26]).[27] These issues are not raised in this appeal.
[25] [2004] NSWWCCPD 17.
[26] [2007] NSWWCCPD 228.
[27] Reasons, [154]–[155].
The Member said the first matter to be determined was whether the worker had suffered ‘injury’ within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act). This, in the circumstances, was whether there was “an aggravation of degenerative disc disease in the cervical spine that arose out of or in the course of his employment with the respondents pursuant to s 4(b) of the 1987 Act”. She noted the appellant’s submission that the onset of symptoms occurred when the worker commenced with the first respondent in July 2017. It was argued the office was poorly set up ergonomically, he worked long hours, he had to stretch out his hand constantly using a mouse and take telephone calls holding the receiver between his shoulder and neck. The Member noted the respondents’ submission that there was no aggravation of the disease while he was employed by either of the respondents. There was no complaint to any of the treating doctors until early 2021. The respondents’ submitted the worker’s evidence should be treated with caution. This was because there were inconsistencies in his own evidence, inconsistencies between his evidence and that of other witnesses and also because of the events that led to his termination by the first respondent.[28]
[28] Reasons, [156]–[159].
The Member, for convenience, dealt initially with the case against the second respondent. The worker’s counsel submitted there should be an award in the second respondent’s favour. The Member said that Dr Khong was the only doctor who expressly considered the connection between employment with BME and the diagnosed injury. The doctor said employment with BME caused an acceleration and exacerbation of the worker’s cervical degenerative change. Dr Khong said the worker did not have pain before his employment with BME. The Member accepted the submission by the worker’s counsel that Dr Khong had confused the periods of employment with the two respondents. The Member referred to the worker’s description of his duties with BME. The Member said it was clear the complaints regarding poor ergonomics were made against Vanguarde and not against BME. The Member said that in the circumstances no weight could be placed on Dr Khong’s opinion regarding whether the injury was caused by employment with the second respondent. She accepted Mr Horan’s submission that there was no evidence that work with the second respondent was of the same type as that with the first respondent.[29]
[29] Reasons, [160]–[167].
The Member turned to the issue of whether there was employment ‘injury’ with the first respondent. She referred to the worker’s statement dated 15 September 2021, that after five staff were terminated or resigned, the worker’s duties became more administrative and he was in the office all day at his computer and answering phone calls, working 12 hours per day for six days per week. He said that immediately after starting with Vanguarde he noticed pain, particularly in the neck, back and hands, which “persisted and continues to date”. The worker’s statement dated 8 November 2021 said that his psychological injury “masked” pain in his neck, back, shoulders and legs. He would “constantly feel pain in his back and shoulders”. The worker disputed that the other employees of Vanguarde who gave statements were in a position to comment on the hours that he worked.[30]
[30] Reasons, [168]–[171].
The Member referred to the worker’s oral evidence. He conceded that, in his claim form dated 4 March 2020, he made no reference to his neck. The appellant said that, before seeing Dr Lim, he had “not specifically” told doctors about his neck. The Member referred to cross-examination going to why, if the worker had neck pain, he did not tell his doctor about it. The worker conceded he did not think there was anything physically wrong with him.[31]
[31] Reasons, [172]–[178].
The Member said the evidence of Messrs Breckell, Howell and James, and Ms Dangelico, raised issues about the hours the worker actually worked, the volume of phone calls he had to answer, and whether he made complaints about using the office equipment. The Member said Mr Breckell conceded the worker spoke to him about his “extra hours”, but said the worker never spoke of the alleged pain in the hands, fingers, arms, back or neck, nor about his workstation or office equipment. Mr Howell said the worker was often late for work and would then work past 5.30 pm to make up for lost time. If the worker arrived at the start time of 8.45 am he would leave around 5.30 pm. Mr James, who worked in IT support, said the worker never complained to him about his workstation. Ms Dangelico said she was usually the last person to leave the office. She could not recall the worker asking for better ergonomic equipment or complaining about his right hand.[32]
[32] Reasons, [179]–[183].
The Member noted the respondent’s submission that there were credit issues and the principles in Malco Engineering Pty Ltd v Ferreira[33] should be applied. The Member said she had not concluded that the worker had lied so this authority was not applicable. The Member said she was satisfied there were inconsistencies in the worker’s evidence, his memory in some respects was poor, which affected his reliability. The worker’s evidence was that he had a bad memory. The Member said her impression was that if the worker did not wish to answer a question his response would be that he was unable to remember. She said there were inconsistencies between the various statements, and between his statements and his oral evidence.
[33] (1994) 10 NSWCCR 117 (Ferreira).
The Member said she was satisfied the worker complained to Mr Breckell about working long hours. The evidence of Messrs Howell, Breckell and James, and of Ms Dangelico, did not support a finding that the worker had complained about his computer, keyboard and mouse, nor about pain in his hands or neck. She accepted the worker may have answered the phone in the manner he described. She was not satisfied the volume of calls was as high as the worker said, nor that the worker worked 12-hour days, six days a week. She said that, where there was a conflict between the evidence of the worker and the respondent’s lay witnesses, she accepted the evidence of the lay witnesses. The worker was prone to exaggeration. The Member said the worker exaggerated the hours he worked, the number of staff terminated or who left after he commenced, the volume of incoming phone calls, the condition of the office and problems with the computer set up such as short cables.[34]
[34] Reasons, [184]–[189].
The Member referred to the worker’s consultations with Dr Ozser, his general practitioner. He saw Dr Ozser (or another doctor in the same practice) 18 times between 1 November 2017 and 6 November 2018. Over this period the doctor did not note or report any complaint about the neck, arms or hands. On 30 August 2019, one year and nine months after the worker’s employment with Vanguarde was terminated, the doctor recorded swollen hands. On 12 September 2019 the note included “possible neck swelling”, although no abnormality was detected and there was no complaint of pain in the neck, nor of radiating pain into the arms or hands. On 16 September 2019, the doctor noted rheumatoid symptoms were getting worse, and referred to the hands, feet, ankles, wrists and knees. There was no reference to the neck. On 11 February 2021, Dr Ozser recorded right arm pain and paraesthesia involving all fingers in the right hand and mostly the middle finger. On 20 April 2021, the worker told Dr Ozser that he had had a cervical spine MRI and was seeing a neurosurgeon to investigate bilateral hand pains. On 31 August 2021 Dr Ozser recorded complaint of neck pain. The Member noted there were clearly a number of medical conditions diagnosed after the worker’s employment with Vanguarde was terminated.[35]
[35] Reasons, [191]–[192].
The Member stated she did not accept the worker complained to Dr Ozser about paraesthesia in the right hand before 16 August 2019. She did not accept there was a complaint to Dr Ozser about the neck until 2021, except for the complaint of neck swelling on 12 September 2019, which appeared to have no real significance – no abnormality was found on examination. The Member said she was satisfied the complaint of “swelling, pain and erythema in [the] hands in August 2019 were in relation to symptoms caused by fibromyalgia and seronegative arthritis”. The Member referred to the warning in cases such as Davis v Council of the City of Wagga Wagga[36] and Mason v Demasi,[37] that inconsistencies between a witness’s evidence and clinical notes should be treated with caution. The Member said it was a feature of the current case that “so many medical providers have recorded a history that is inconsistent with the [appellant’s] evidence”.[38]
[36] [2004] NSWCA 34.
[37] [2009] NSWCA 227.
[38] Reasons, [194]–[195].
The Member said there was no evidence to corroborate that of the worker, that he was experiencing neck and hand pain when working with Vanguarde. She described it as “very significant” that there was no recorded complaint to Dr Ozser about pain he said he experienced on a daily basis, at the time he worked with Vanguarde, or in the 20 months after that employment was terminated. She did not accept it was plausible, if the worker suffered these pains when working for Vanguarde, that he would not have mentioned the matter to his general practitioner during the period of this employment, or in one of the many consultations with his general practitioner in the year following the termination. The Member noted the worker’s submission that psychological issues, and other issues such as fibromyalgia and seronegative arthritis, complicated the diagnosis, and masked the aggravation of the degenerative condition in the cervical spine. The Member said a close reading of Dr Ozser’s clinical notes did not support this. The worker saw Dr Ozser for a range of conditions and was treated for these. The Member was satisfied that if the worker had a medical problem regarding the neck or cervical spine he would have raised it with Dr Ozser. The psychological issues, and other conditions of fibromyalgia and seronegative arthritis, did not preclude the worker raising other issues after his employment with Vanguarde was terminated. For example, on 5 February 2018 the worker saw Dr Ozser about his toenail and a lost script, as well as depression and anxiety and his dismissal from work.
The Member said it was also significant that the worker saw two rheumatologists, Dr Baume and Dr Browne, in 2019, neither of whom recorded complaints about the cervical spine. Dr Baume, on 18 September 2019 recorded two to three weeks of “intermittent erythema and swelling of the hand and feet sometimes associated with paraesthesia”. Dr Browne, between December 2019 and January 2020 referred to altered sensation in the right hand and forearm. On 1 March 2021 Dr Browne referred the worker for nerve conduction studies (which were normal). On 17 January 2022 Dr Browne reported right sided cervical pain.[39]
[39] Reasons, [196]–[198].
The Member said the complaint of paraesthesia in the right hand was not made to a treating doctor until August 2019. The histories taken by Drs Ozser and Baume indicated this symptom did not start until late July or early August 2019. The worker’s employment with Vanguarde was from 17 June 2017 to 1 December 2017. The histories of these treating doctors were inconsistent with the history subsequently recorded by Dr Khong, which was of pain and numbness in the right hand and arm from after the worker started work with Vanguarde in July 2017. The Member said the worker’s evidence, in his statements and oral evidence, did not actually state that the paraesthesia, numbness and pins and needles occurred while he worked for Vanguarde. The worker referred to pain and soreness in the neck, wrists and hands.[40]
[40] Reasons, [199].
The Member described the doctors’ opinions on causation as being based on the accuracy and reliability of their histories. Dr Lee, addressing causation, described the setup of equipment as being what makes the difference. The doctor said that holding a phone between the ear and the shoulder would be an important factor. The symptoms recorded by the doctor included “pain, pins and needles sensation”. The Member said Dr Lee’s recorded history was that the worker had to stop in December 2018 [sic, 2017] because “he felt tired and could not lift his hands to do anything. There are also pins and needles sensation and numbness”. The Member said Dr Lee’s opinion was based on the assumption that the worker experienced “pain, pins and needles and numbness in his hands during 2017 and 2018”. The Member said no real weight could be given to Dr Lee’s opinion, given the worker had not established that he experienced pain, pins and needles and numbness in his hands during [2017] and 2018.[41]
[41] Reasons, [202]–[206].
The Member referred to Dr Singh’s reports:
“Dr Singh obtained a history of neck and arm pain with worsening pins and needles in the right arm ‘which are related to the nature and conditions of his employment with repetitive neck movements and using the phone to the ear with his shoulder’. Dr Singh did not indicate precisely when the symptoms began but it can be inferred from his report that he assumed the neck and arm pain started during the employment with the first respondent.”[42]
[42] Reasons, [207].
The Member said that no real weight could be placed on Dr Singh’s opinion as it was based on the assumption that the worker “experienced neck and arm pain and pins and needles in the right arm during his period of employment with [Vanguarde]”. The Member concluded that Dr Khong’s opinion on causation suffered from the same difficulty, it assumed the worker “experienced pain and numbness in the right arm and hand during the period of his employment with [Vanguarde].” The Member referred to Dr Lim’s opinion. He recorded a history that the worker “started at the company in June 2017 and began experiencing pain in his hand in July”. The Member said Dr Lim too assumed by way of history that the worker “experienced pain in his hand while working for the respondent in July 2017”.[43]
[43] Reasons, [207]–[209].
The Member concluded:
“On balance, I find that the paraesthesia developed in the right hand some 21 months after the [worker] ceased work for [Vanguarde].
I am satisfied that the [worker] did not report to any doctor any neck symptoms or paraesthesia in the right hand after he left the employment of [Vanguarde] on 1 December 2017 before July or August 2019. This is, in my view, too long a period for that employment to be implicated as a cause of a neck injury that now requires surgery.”[44]
[44] Reasons, [210]–[211].
The Member also noted “there were no complaints made in respect of stiffness or pain in the neck until the consultation with Dr Lim on 17 February 2021”.[45] The Member quoted from Nguyen v Cosmopolitan Homes.[46] She said:
“For the reasons above, I do not feel a sense of actual persuasion that the [worker] sustained an injury to his cervical spine arising out of or in the course of his employment with [Vanguarde] on 1 December 2017, and find that the [worker] has not discharged the onus of proof that he probably sustained such an alleged injury.”[47]
[45] Reasons, [212].
[46] [2008] NSWCA 246 (Nguyen), [55].
[47] Reasons, [214]–[215].
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.
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.
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) Factual error by the Member in paragraph [199] of the reasons: “The [appellant], in his various statements and his oral evidence, did not actually state that paraesthesia, pins and needles or numbness were occurring when he worked for the first respondent” (Ground No. 1);
(b) The Member erred in dismissing the appellant’s submission that the psychological issues and other conditions of fibromyalgia and seronegative arthritis masked the symptoms of aggravation of the degenerative condition in his cervical spine (reasons, [196]–[197]) (Ground No. 2);
(c) The Member erred in requiring the appellant to point to evidence corroborating his evidence of experiencing pain in his neck and hands when working for the first respondent (reasons, [196]) (Ground No. 3);
(d) The Member erred in finding that the right hand paraesthesia developed ‘spontaneously’ with no contribution from work some 21 months after the worker ceased work for the first respondent (reasons, [210]–[212]) (emphasis in original) (Ground No. 4), and
(e) The Member erred in finding that the histories relied upon by Dr Khong, Dr Singh and Dr Lee were inaccurate and so should be given no real weight on causation issues (reasons, [202]–[208]) (Ground No. 5).
THE NATURE OF THE APPEAL
The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which 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.”
In Raulston v Toll Pty Ltd,[48] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[49] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[50]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(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’.”[51]
[48] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[49] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[50] [1996] HCA 140; 140 ALR 227.
[51] Raulston, [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.[52] 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. 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).”[53]
[52] [2020] NSWCA 54 (Hill).
[53] Hill, [20].
In Northern NSW Local Health Network v Heggie[54] 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”.
[54] [2013] NSWCA 255; 12 DDCR 95, [72].
GENERAL SUBMISSIONS
The appellant makes some general submissions that are not directed towards any specific ground. He submits the three specialist doctors who opined on causation, Drs Khong, Singh and Lee, all considered the duties with Vanguarde aggravated underlying degenerative disease of the cervical spine.[55] The appellant notes he was cross-examined for some 45 minutes, dealing with the work duties that caused discomfort to the neck and right upper limb. The Member specifically did not find that the worker had lied in his evidence (reasons, [184]). The Member found there was exaggeration and inconsistency in the worker’s evidence, centring around the amount of overtime worked, the number of departing staff, the volume of incoming phone calls and the computer problems such as short cables.[56] The appellant submits the Member accepted that the type of work performed could cause an aggravation of underlying cervical disc disease.[57] The appellant submits it was erroneous to find the appellant had failed to discharge his onus of proving a work injury to the cervical spine.[58]
[55] Appellant’s submissions, [10].
[56] Appellant’s submissions, [12], [14]–[15].
[57] Appellant’s submissions, [17].
[58] Appellant’s submissions, [18]–[19].
The appellant’s grounds of appeal challenge the award in favour of Vanguarde. The appellant does not challenge the award entered in favour of BME.
GROUND NO. 1
Appellant’s submissions
The appellant quotes the following passage from the reasons at [199]:
“The [worker], in his various statements and his oral evidence, did not actually state that paraesthesia, pins and needles or numbness were occurring when he worked for [Vanguarde]. The [worker] only referred to sore wrists, sore neck, right hand pain, soreness, strains to the neck and hands.”
The appellant refers to the worker’s statement dated 8 November 2021, from which he quotes the following:
(a) At [6] of the statement the worker said:
“After being terminated on 1 December 2017, I continued to experience pain in my arms and fingers. Again, I put this down to being tired I was doing a lot of sitting and was not able to cope.”
(b) At [15] of the statement the worker said:
“Sitting and typing all day on the keyboard, I would get pins and needles in my fingers and in my arms. My knuckles would get sore, under my arm would get sore from being stretched out.” (emphasis in submissions)
(c) At [17] of the statement the worker said:
“… I would get sore hands and arms and I would stop occasionally to shake them out, I put this down to being tired. I did not know that it would cause an injury to me. The injury was in its early stages. I just thought I was depressed and tired, and the injury has only been getting worse.”
The appellant submits that he may not have given oral evidence about pins and needles, as he was not asked about this when being cross-examined. He did so in his statement dated 8 November 2021. The appellant submits the Member has mistaken the facts, error of the kind in House v The King.[59] It submits this error was central to the finding against the worker on ‘injury’.
[59] [1936] HCA 40; 55 CLR 499 (House v The King).
Respondent’s submissions
The respondent submits the alleged factual error, considered in the context of the evidence as a whole, was “not important” and was not central to any finding on injury. The worker’s employment with Vanguarde was from 14 June 2017 to 1 December 2017, that with BME was from 16 April 2018 to 20 November 2018. The reasons at [28] acknowledged the worker’s evidence of sore hands and arms and the worker’s need to “shake them out”. The worker’s employment with Vanguarde ceased in circumstances where he had committed a criminal offence for which he was prosecuted. The worker saw Dr Baume on 18 September 2019 and up to that point he had not complained of his hands, or neck, or pins and needles or paraesthesia. It was not until the worker saw Dr Lim in February 2021 that there were complaints about pins and needles.[60]
[60] Respondent’s submissions, [11]–[16].
The respondent’s submissions summarise the reasons. The respondent notes the Member’s preference, where there was a conflict between the appellant’s evidence and that of work colleagues, for that of the work colleagues. She considered the appellant’s evidence contained inconsistencies and that he was prone to exaggeration.[61] The respondent refers to the reasons at [196]. The Member did not accept, in the absence of relevant complaint until 2021, that the worker suffered from neck and hand pain yet did not mention it to his general practitioner.[62]
[61] Respondent’s submissions, [22].
[62] Respondent’s submissions, [23]–[24].
The respondent submits a failure by the Member to deal with the passage in the appellant’s statement dated 8 November 2021 was not central to her determination on injury. The Member relied on other matters, in particular the worker’s failure to contemporaneously report the symptoms at issue.[63]
[63] Respondent’s submissions, [9]–[10], [24]–[25].
Consideration
The appellant’s submissions refer to error of the kind in House v The King. Those principles are typically applied in the context of an appeal against a decision involving the exercise of discretion (see Micallef v ICI Australia Operations Pty Ltd[64]). The appellant’s right to appeal is pursuant to s 352(5) of the 1998 Act and is subject to the principles discussed above at [41] to [44]. It is necessary, if the appellant is to establish appealable error pursuant to s 352(5), that he establish the error would impact the result. In Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No. 3) Beazley JA (as Her Excellency then was) said:
“Not every factual error will undermine a determination nor necessarily be relevant to an argument based upon the adequacy of reasons. However, it may do so where the accuracy of the evidence is relevant, or even critical.”[65]
[64] [2001] NSWCA 274, [45].
[65] [2006] NSWCA 282, [142].
In Trazivuk v Motor Accidents Authority of New South Wales Handley AJA (Young JA agreeing) said:
“As Moffitt P said in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419:
‘... it is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error ... It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.’”[66]
[66] [2010] NSWCA 287, [110]. See also Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, [6]–[7].
The appellant’s submission on this ground refers to a passage from the reasons at [199]. The passage, dealing with symptoms in the wrists, neck and right hand, distinguishes between “paraesthesia, pins and needles or numbness” on one hand, and soreness on the other. I cannot see that the passages quoted from paragraphs [6] and [17] of the statement, which refer to pain, assist the appellant. The Member’s reasons at [199] accepted that there was reference in the statements and oral evidence to pain. The passage quoted from paragraph [15] of the statement potentially supports the appellant’s argument; it refers to pins and needles in the fingers and arms while the worker was typing on his keyboard. This, on its face, is inconsistent with the quoted passage from the reasons at [199].
It is necessary that the reasons be read as a whole.[67]
[67] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The paraesthesia and other sensory symptoms assumed significance in the Member’s analysis of the role of the cervical degenerative change. In the reasons at [127] the Member quoted from Dr Ozser’s report dated 29 April 2021, which referred to a presentation “around August 2019” (the appellant left the employ of Vanguarde on 1 December 2017). At that consultation there was a three-week history of “bilateral hand swelling, pain, erythema and paraesthesia … similar but somewhat milder symptoms in his feet.” This led to a referral to Dr Christopher Browne, rheumatologist, who diagnosed fibromyalgia and seronegative arthritis. Dr Ozser thereafter saw the worker “multiple times” during 2019 and 2020. Dr Ozser said the majority of the presentations related to these diagnosed conditions of fibromyalgia and seronegative arthritis. Dr Ozser said that “neither of these conditions explain the paraesthesia”. Dr Ozser referred to a presentation on 11 February 2021 with “R arm/hand pain and paraesthesia”. Dr Ozser said there were “further investigations including nerve conduction study and Cervical Spine Imaging which apparently showed degenerative changes explaining the R upper limb symptoms”. The neck imaging was arranged by a different doctor.[68] The presence of paraesthesia was potentially consistent with symptomatic cervical degenerative change.
[68] Reasons, [127]–[129].
The Member, in the reasons at [191], referred to the worker’s consultations with Dr Ozser, his general practitioner, from 1 November 2017 (one month before he left Vanguarde) to 6 November 2018. There were 18 consultations over that period which dealt with a “range of medical issues”. The Member said that over this period Dr Ozser did not note or report “any complaint about his neck, arms or hands or pain in the neck, arms and hands”.
In the reasons at [131] to [136] the Member set out comments from Dr Browne, over a period from 2 December 2019 to 17 January 2022. Dr Browne, reporting on 2 December 2019, noted the worker had pain and swelling of the hands about six months ago (about June 2019). On 1 March 2021 Dr Browne noted altered sensation of the right hand and forearm. On 17 January 2022 Dr Browne noted the worker “continued to have right sided cervical pain and probable radiculopathy involving C6 or C7 nerve roots”.
The Member engaged in a careful analysis of the worker’s complaints from time to time.[69] There was a credit issue in the case. The Member did not accept that the worker had lied. However, the Member said there were exaggerations and inconsistencies in the worker’s evidence and his memory was poor which affected his reliability. The Member’s impression was that the worker would say he was unable to remember if he did not wish to answer a question.[70] The Member made a number of specific findings going to the reliability of the worker’s evidence.
(a) She found the worker exaggerated the hours he worked with Vanguarde, the number of staff who were terminated or left after he commenced there, the volume of phone calls into the office, the condition of the office and the problems with the computer setup.[71]
(b) She did not accept that the worker complained to Dr Ozser about paraesthesia in the right hand before 16 August 2019.
(c) She did not accept that the worker complained about his neck to Dr Ozser until 2021, save for “neck swelling” on 12 September 2019, which was of no real significance.
(d) She did not accept that the worker had the pain he described when working for Vanguarde, which he did not mention to his general practitioner Dr Ozser during his period of employment with Vanguarde or during the period of 20 months after he was terminated.
[69] Reasons, [190]–[212].
[70] Reasons, [184]–[186].
[71] Reasons, [189].
The Member made a specific finding that if the worker had a medical problem regarding the neck or cervical spine, he would raise it with Dr Ozser.[72] The Member said there was no evidence to corroborate that of the worker, that he experienced neck and hand pain when working for Vanguarde. She said it was a feature of the case that “many medical providers have recorded a history that is inconsistent with the [worker’s] evidence”.[73] The broad findings made by the Member in her reasons at [194] to [197], regarding the acceptability of the worker’s evidence, are inconsistent with acceptance of the complaints described, in the absence of corroboration, particularly from the contemporaneous material of Dr Ozser. The statement of the appellant, on which Ground No. 1 is based, postdated the worker’s termination from Vanguarde’s employ by nearly four years. The Member’s fact-finding essentially relied on contemporaneous complaints recorded by treating doctors, as opposed to the worker’s statements which dated from well after the worker’s employment with Vanguarde ended. This was consistent with the following well-known passage from Onassis v Vergottis:
“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be ... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”[74]
[72] Reasons, [197].
[73] Reasons, [194]–[197].
[74] [1968] 2 Lloyd’s Rep 403, 431.
The Member was clearly cognisant of the worker’s statement dated 8 November 2021. In her reasons at [26] the Member specifically referred to the statement. She noted the worker’s evidence in the statement that he complained to Dr Ozser about “the strain and aches [the workload] was causing on his body”. The Member specifically quoted, at [28] of her reasons, from the passage dealing with pain in the hands and arms and the worker stopping to “shake them out”. Acceptance of the worker’s complaints referred to in the passages of the statement on which the appellant relies, at the times alleged in the statement, is inconsistent with the Member’s findings regarding the acceptability of the worker’s evidence.
Ground No. 1 fails.
GROUND NO. 2
Appellant’s submissions
The appellant refers to the reasons at [196] to [197]. The appellant refers to its argument that psychological issues, and the conditions of fibromyalgia and seronegative arthritis, masked the aggravation injury to the cervical spine. The appellant refers to the Member’s rejection of this argument, where the Member said, “a close reading of Dr Ozser’s clinical notes does not support these submissions”.[75]
[75] Reasons, [197].
The appellant quotes from Dr Ozser’s report dated 21 March 2020.[76] The appellant submits his neck and right upper limb symptoms coincided with the period when he was dismissed by Vanguarde. He was being treated for a severe mental health condition and being told by treating doctors that his physical symptoms related to stress and anxiety. His mental health symptoms would have been heightened during November/December 2017. It was not unreasonable that he would not seek treatment for the neck and upper limb symptoms. In his statement dated 8 November 2021 he described pain in his arm and fingers and said, “I put this down to being tired”.
[76] Application to Resolve a Dispute (ARD), pp 87–9.
Dr Baume, a treating rheumatologist, reporting on 18 September 2019, informed the worker that “[s]tress and anxiety (were) causing most of his symptoms”. The appellant submits the Member set out this evidence in her reasons at [130] but failed to take it into account when dealing with the ‘masking’ issue. The appellant submits Dr Ozser and Dr Browne were clearly giving the same medical advice.[77]
[77] Appellant’s submissions, [27]–[30].
Respondent’s submissions
The respondent submits the Member was “entitled to be cautious in approaching the evidence of the appellant”; she did not accept the evidence of the appellant as a whole. The Member had regard to Dr Ozser’s clinical notes which did not suggest merit in the masking argument. The respondent submits the Member attached force to the contemporaneous reporting in Dr Ozser’s notes, as opposed to the doctor’s report dated 21 March 2020. The respondent submits consultations around the time of the worker’s termination show treatment for sensitive personal matters. The psychological condition did not mask the presence of these conditions but is alleged to have masked a condition pertinent to the worker’s compensation claim. The respondent submits this is implausible and the Member dealt with this issue correctly.[78]
[78] Respondent’s submissions, [27]–[34].
Consideration
Near the commencement of the hearing the injury relied on was identified by the Member as “injury to the neck with symptoms radiating down the upper extremities and there is no separate injury to any part of the upper extremities”.[79] The appellant’s counsel announced that “the injury allegation is an aggravation of degenerative cervical spine disc disease which I think the doctors had indicated included compression or particular problems at C6 and 7”. The Member enquired “… as part of that injury though … [he] also has symptoms which radiate down the upper extremities?” The appellant’s counsel responded “Yes. Particularly the right side.”[80]
[79] T 3.11–15.
[80] T 3.21–31.
The appellant’s submissions refer to Dr Ozser’s report dated 21 March 2020, which is addressed to the insurer. It refers to “a new Workcover injury based on exacerbation of a pre-existing condition, namely Depression and Anxiety as well as new diagnosis of work related Fibromyalgia and Rheumatism”. The report describes anxiety and depression symptoms as including “poor concentration, poor memory, insomnia, reduced cognitive abilities, reduced endurance/resilience as well as low mood”. The report refers to the appellant’s settlement on 22 November 2019 (see [2] above) with which he was dissatisfied. The doctor said that “due to his active symptoms and the pressure placed on him, he made a poor judgement which he has since regretted”.
The report’s primary focus appears to have been the worker’s state of mind at the time he entered into the earlier settlement on 22 November 2019, which postdated his employment with Vanguarde by about two years. The doctor described the injuries at work as “Major Depression with features of anxiety” and “Polyarthralgia, Rheumatism and Fibromyalgia”. The doctor’s description of ‘main contributing factor’ referred to “Difficult relationship with his employer … claims of harassment and bullying … during and following the period of his employment at Vanguard[e]”, “Financial hardship resulting from loss of his employment …”, “Criminal Fraud charges pressed against CAR for unlawfully possessing monies from his employer … these criminal charges are adversely affecting his chances of employment”. The doctor referred to fibromyalgia which he and Dr Browne thought resulted from “prolonged stress resulting from work related trauma and subsequent depression/anxiety”. The prognosis was described as “relatively poor”. The diagnoses identified in this report are different to the claim brought in the current proceedings. The report does not deal directly with whether the conditions discussed would be likely to mask the orthopaedic injury alleged in the current proceedings.
The appellant’s submissions quote from his statement dated 8 November 2021 at [6], where the appellant said that after his termination he “continued to experience pain in [his] arms and fingers … [he] put this down to being tired”. The difficulty with this evidence is that it assumes the presence of pain in the arms and fingers prior to the termination. This is generally inconsistent with the Member’s analysis of Dr Ozser’s clinical material, reports of Dr Baume and Dr Browne, and the Member’s associated credit findings at [194] to [199] of her reasons.
The Member discussed the onset of symptoms in the context of reports from treating doctors. Dr Ozser referred to “multiple presentations with musculoskeletal pain symptoms starting around 16 August 2019”, writing “[o]n this date, he gave 3 week history of bilateral hand swelling, pain, erythema and paraesthesia”. The Member referred to histories to Dr Ozser that “CAR first reported hand paraesthesia on 16/8/2019”, and “Dr Ozser noted that the [worker] did not have any pre-existing issues with neck pain, cervical spine or radiculopathy prior to 3 January 2018”.[81] These histories of the onset of neck pain, arm pain and radiculopathy postdate the cessation of the worker’s employment with Vanguarde. The claim against BME (which employment postdated that with Vanguarde) resulted in an award in BME’s favour (which is not challenged on this appeal) consistent with the submissions of all parties.
[81] Reasons, [127]–[129].
The appellant refers to Dr Baume’s report dated 18 September 2019. The appellant submits that the Member set out evidence from the report in her reasons at [130], but “failed [to] consider it or take it into account so far as the masking issue was concerned”.[82] The reasons at [130] state:
“In a report dated 18 September 2019, Dr Robert Baume, treating rheumatologist, noted that over the last two to three weeks the [worker] had intermittent erythema and swelling of his hands and feet sometimes associated with paraesthesia. Dr Baume considered that stress and anxiety were causing most of the symptoms.”
[82] Appellant’s submissions, [29]–[30].
Contrary to the appellant’s submission, the Member dealt with the ‘masking’ submission at [197] of the reasons. She set out the substance of the submission and gave reasons for not accepting it. She said it was not supported by a “close reading of [the] clinical notes”. She noted Dr Ozser treated the worker for “a range of conditions”. She said that the worker’s “psychological issues and the other conditions of fibromyalgia and seronegative arthritis certainly did not preclude [the worker] from raising other conditions with Dr Ozser after his employment with the first respondent was terminated”. By way of example, she referred to 5 February 2018 when matters raised at a consultation included the worker’s toenail, a lost script, depression and anxiety and the worker’s dismissal from work.
Acceptance or rejection of this submission was a factual matter. The appeal is one pursuant to s 352(5) of the 1998 Act and is subject to the principles discussed above, in decisions such as Whiteley Muir and Raulston. The view which the Member took was open to her. The way in which the Member dealt with this issue did not involve appealable error.
Ground No. 2 fails.
GROUND NO. 3
Appellant’s submissions
The appellant refers to the reasons at [196], from which the following short passage is quoted:
“There is no evidence to corroborate the [appellant’s] evidence that he was experiencing pain in his neck and hands when working for the first respondent.”
The appellant submits it was erroneous to require corroboration of his evidence that he experienced pain in the neck and hands when working with Vanguarde. The appellant refers to the evidence in his statement and to his oral evidence. This included evidence of him shaking out his right hand and of demonstrating how he held the telephone between his neck and shoulder. In the reasons at [184], the Member said she had not concluded the worker had lied, although she did find him prone to exaggeration. Whether there was pain was a factual matter, pain is either present or it is not. The appellant submits the Member erred in requiring the worker to provide corroboration of the complaints of pain while he was at work.[83]
[83] Appellant’s submissions, [31]–[35].
Respondent’s submissions
The respondent submits causation was a matter to be determined by the Member and her conclusions were open on the evidence. The respondent submits that, whilst the Member did not find the appellant had lied, she did find there were “many inconsistencies and exaggerations”. It submits the contemporaneous records indicated the worker did not report a condition of his neck until he consulted Dr Lim. The respondent submits that there was no evidence of the worker complaining of a neck condition until many years after he left Vanguarde’s employ. The respondent submits that, in the presence of exaggeration and inconsistency, the Member was entitled to look at contemporaneous clinical notes and the evidence of colleagues. The Member at [189] of the reasons indicated that, where there was inconsistency between the worker’s evidence and that of work colleagues, she preferred the evidence of the colleagues.[84]
[84] Respondent’s submissions, [35]–[45].
The respondent refers to the circumstances surrounding the worker’s termination, the conflict between his evidence and that of work colleagues, and the lack of contemporaneous clinical support. The respondent submits that there was a finding that the worker had lied and the Member was guarded regarding whether the worker had suffered an injury. It was appropriate that she considered all of the evidence, including the limitations in the evidence of the worker. Reference is made to Ferreira. The respondent submits the Member was not prepared to accept the worker’s “belated self-reporting of significant impairment without objective verification”. The respondent submits the Member considered the evidence at length, her reasons were “careful and exhaustive”, and she was entitled to reach the conclusion that she did.
Consideration
The short passage from the reasons, quoted in the appellant’s submissions on this ground, forms part of a larger discussion in this part of the decision. The larger discussion goes to whether the worker made contemporaneous complaints, at or around the time of his employment with Vanguarde, consistent with his allegation of injury in these proceedings. The Member effectively concluded that the contemporaneous complaints did not support the allegations. The absence of corroboration simply meant that there was not corroborative evidence to otherwise support the worker’s allegations. This was a part of the Member’s analysis. It did not involve the Member applying an inappropriate standard of proof. The Member made findings dealing with the acceptability of the worker’s evidence. The Member specifically said she had “not concluded that the [worker] has lied”. The Member continued, saying she was “satisfied that there were exaggerations and inconsistencies”, that the worker’s “memory in some respects was poor, and this affects his reliability”, and that the worker’s “evidence at times was that he had a bad memory”. The Member referred to her “impression” that “when he did not wish to answer a question, his response would be that he was unable to remember”. The Member said that the worker’s “evidence statements also contain inconsistencies”. The Member referred to the evidence of the worker’s work colleagues, saying that “where there is a conflict between their evidence and the evidence of the [worker]” she accepted the evidence of the work colleagues. The Member found the worker:
“… exaggerated the number of hours that he worked, the number of staff who were terminated or left after he started work for the respondent, the volume of phone calls that came into the office, the condition of the office and problems with the computer set up”.[85]
[85] Reasons, [184]–[189].
The acceptability of the worker’s evidence was plainly in doubt. It was appropriate that there be a careful assessment of its honesty and reliability. This did not necessarily mean that the evidence could not be accepted without corroboration.[86] A careful assessment of the worker’s evidence, and the associated medical evidence, was the task in which the Member engaged, in her reasons at [191] to [211]. There was an issue regarding whether the worker suffered from neck and arm symptoms, at or around the time when he was working with Vanguarde, which was relevant to the ‘injury’ issue. The Member’s reasons do not suggest that she approached this exercise on the basis that the worker’s evidence would not be accepted in the absence of corroboration. In the course of her analysis on this point, the Member noted there was “no evidence to corroborate the [worker’s] evidence that he was experiencing pain in his neck and hands when working for [Vanguarde]”.[87] Whether the worker suffered from such symptoms was relevant to the causation issue. Corroboration, if available, would have been relevant to this. There was a substantial (and ultimately successful) challenge to the worker’s evidence on this issue.
[86] Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290, per Ward CJ in Eq (as her Honour then was), [305].
[87] Reasons, [196].
Ultimately the Member made various factual findings regarding the onset of the worker’s symptoms. She found:
(a) “I am satisfied that if the [worker] had a medical problem regarding the neck or cervical spine, the [worker] would raise the problem with Dr Ozser.”[88]
(b) “[The worker] saw Dr Ozser or another doctor in the practice concerning a range of medical issues about 18 times between between 1 November 17 and 6 November 2018. At no stage during this period did Dr Ozser note or report that the [worker] made any complaint about his neck, arms or hands or pain in the neck, arms and hands.”[89]
(c) “I do not accept that the [worker] complained to Dr Ozser about paraesthesia in the right hand before 16 August 2019. Further, I do not accept that the [worker] complained about his neck to Dr Ozser until 2021 apart from a reference to neck swelling on 12 September 2019 which appeared to have no real significance as no abnormality was found on examination.”[90]
(d) “There is no evidence to corroborate the [worker’s] evidence that he was experiencing pain in his neck and hands when working for [Vanguarde].”[91]
(e) “… the [worker] made no recorded complaint to Dr Ozser about the pain he said he experienced every day at work in his neck and right hand during his period of employment with [Vanguarde] or even in the 20 months after his employment was terminated. I do not accept that it is plausible that if the [worker] had pain as he has described when working for [Vanguarde], he would not have mentioned it to his general practitioner during that period of employment and certainly during one of the many consultations he had with his general practitioner in the year following the period of employment with [Vanguarde].”[92]
(f) “… the [worker] has failed to establish that he experienced pain, pins and needles and numbness in his hands during 2018 [sic, 2017] and 2018.”[93]
(g) “On balance, I find that the paraesthesia developed in the right hand some 21 months after the [worker] ceased work for [Vanguarde].[94]
[88] Reasons, [197].
[89] Reasons, [191].
[90] Reasons, [194].
[91] Reasons, [196].
[92] Reasons, [196].
[93] Reasons, [206].
[94] Reasons, [210].
The Member’s reference to corroboration did not involve the Member applying an inappropriate test. Its relevance was readily apparent, given the factual findings going to the absence of relevant complaint by the worker during the period of the worker’s employment with Vanguarde, and thereafter. It formed part of her discussion of the evidence as a whole dealing with whether the worker had succeeded in establishing the occurrence of the pleaded injury.
Ground No. 3 fails.
GROUND NO. 4
Appellant’s submissions
The appellant submits opinions on causation were given by Dr Khong, Dr Singh and Dr Lee. These supported the proposition that the worker’s duties with Vanguarde aggravated degenerative disc disease in the cervical spine. Reference is made to the worker’s evidence, by way of his statements and in his oral evidence, regarding his neck and arm symptoms. The appellant submits there was a finding that the worker did not tell lies in his evidence. It is submitted these are not grey areas or areas where exaggeration plays a part.[95]
[95] Appellant’s submissions, [36]–[38].
Respondent’s submissions
The respondent submits the Member gave an exhaustive recitation of the evidence, in dealing with the causation issue. Importance was given to the lack of contemporaneous complaints, and to the development of paraesthesia in the right hand 21 months after ceasing with Vanguarde. The absence of contemporaneous complaints was important. The Member was satisfied the worker did not report neck symptoms or right-hand paraesthesia to a doctor until July/August 2019.[96]
[96] Respondent’s submissions, [53]–[54].
The respondent submits the opinions of Drs Khong, Singh and Lee were based on the self-reporting of the worker. The Member undertook an evaluative exercise looking at the entirety of the evidence and applying the relevant legal tests. The respondent notes the Member was not prepared to accept that the worker lied in his evidence. Notwithstanding this, the Member was not impressed with the worker’s evidence. Reference is made to the evidence of the worker’s colleagues, the “belated complaints of symptomatology”, the termination of the worker’s employment and “general credit issues surrounding the termination”. The respondent submits the Member was entitled to consider the lapse of time prior to complaints, in determining the issue of causation. The respondent submits the appellant’s position is that a determination should have been made based on a history taken at face value, without an interrogation of the evidence.[97]
[97] Respondent’s submissions, [56]–[58].
Consideration
This ground is vaguely expressed. It is expressed as a factual error. The submissions refer to the failure of the Member to accept the opinions of Dr Khong, Dr Lee and Dr Singh. The Member dealt with the weight to be afforded to the opinions of these doctors. She said their opinions were “based on the history provided by the [worker] being accurate and reliable”. She noted Dr Lee’s opinion was based on the assumption that the worker experienced pain, pins and needles and numbness in his hands during 2017 and 2018. She said no real weight could be given to the doctor’s opinion where the worker “failed to establish that he experienced pain, pins and needles and numbness in his hands during [2017] and 2018”.[98]
[98] Reasons, [202]–[206].
The Member said it could be inferred from Dr Singh’s report that he “assumed the neck and arm pain started during the employment with [Vanguarde]”. The Member said the report carried no real weight because it was based on this assumption.[99]
[99] Reasons, [207].
The Member took a similar approach to the other medical evidence on which the appellant relied. She said Dr Khong’s opinion was based on the assumption that the worker “experienced pain and numbness in the right arm and hand during the period of his employment with the first respondent”.[100] The Member said that Dr Lim’s opinion was based on a history that the worker started with Vanguarde in June 2017 and experienced hand pain while working with Vanguarde in July 2017.[101]
[100] Reasons, [208].
[101] Reasons, [209].
The Member made a finding of fact that “the paraesthesia developed in the right hand some 21 months after the [worker] ceased work for [Vanguarde]”.[102] She found the worker “made no recorded complaint to Dr Ozser about the pain he said he experienced every day at work in his neck and right hand during his period of employment with the first respondent or even in the 20 months after his employment was terminated”. She found it was implausible that, if the worker suffered the alleged pain, “he would not have mentioned it to his general practitioner during that period of employment and certainly during one of the many consultations he had with his general practitioner in the year following”. Although the Member was not satisfied that the worker had lied, it is apparent from the reasons as a whole that she concluded his evidence, both orally and in his statements, was unreliable (see [81] above). She found the worker did not suffer from the symptoms alleged while working with Vanguarde.
[102] Reasons, [210].
The approach taken by the Member, to the weight to be afforded to medical opinion evidence where the assumed factual basis of the opinion differed from the facts as proved, was consistent with Paric v John Holland (Constructions) Pty Ltd (Paric) and associated authorities. The Court of Appeal in Paric said:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[103]
[103] [1984] 2 NSWLR 505, 509–510 (per Samuels JA, Hutley and Priestley JJA agreeing).
The High Court in Paric said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[104]
[104] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844, [9].
It was the function of the Member, as the tribunal of fact, to assess the impact that the substantial discrepancy in the history had on the weight of the appellant’s qualified medical evidence. She concluded the opinions were deprived of probative force. The Member found:
“This is a case, in my view, as sometimes occurs in workers compensation cases, where a body part spontaneously develops symptoms sometime after a worker ceases employment with no apparent contribution from work. Here, the [worker’s] treating doctors, particularly Dr Ozser, Dr Baume and Dr Browne, were presented with complaints of paraesthesia in the right hand some considerable time after the [worker] ceased work for [Vanguarde]. Further, there were no complaints made in respect of stiffness or pain in the neck until the consultation with Dr Lim on 17 February 2021.”[105]
[105] Reasons, [212].
The appellant frames this ground on the basis there was no medical evidence to support a finding that right hand paraesthesia developed spontaneously, with no work contribution, some 21 months after the worker ceased employment with Vanguarde. The appellant carried the onus of establishing the pleaded injury.[106] The Member found that the appellant’s qualified medical case was deprived of probative force, in circumstances where she found the worker did not suffer relevant symptoms during (or in an acceptable period after) his employment with Vanguarde. The effect of this was that the worker’s case failed. The result did not turn on the Member’s reference, in the reasons at [212], to a “spontaneous” development of symptoms.
[106] Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, [9].
Ground No. 4 fails.
GROUND NO. 5
Appellant’s submissions
The appellant submits there was error on the Member’s part, in concluding that the reports of Dr Khong, Dr Singh and Dr Lee each relied on inaccurate histories and accordingly should be given no real weight on the causation issues. The appellant deals with each of these doctors separately.[107]
[107] Appellant’s submissions, [39].
Dr Khong
The appellant refers to the reasons at [208], which read:
“Dr Khong noted that in July 2017, the [appellant] was doing a lot of computer work and also holding the phone between his neck and left shoulder and he started to experience pain and numbness in the right arm and hand. Dr Khong noted that the [appellant] took three months off work and then got another job from April to November 2018, but kept getting pain in his right hand. Again, Dr Khong based his opinion in relation to causation on the assumption that the [appellant] experienced pain and numbness in the right arm and hand during the period of his employment with the first respondent.”
The appellant refers to quotes from Dr Khong’s report dated 23 April 2021 under the heading “Impression and Management”. The opening two sentences of the passage are the subject of emphasis and read:
“CAR presents with right sided neck and arm pain after several months of computer work and typing with a poor posture and holding his neck against a phone for prolonged periods. This has persisted and progressively become worse over the past few years.”
The appellant submits Dr Khong’s opinion was based on “right sided neck and right arm pain after the work duties”, rather than “the narrower right arm ‘numbness’ which the Member erroneously concluded was not proved by the appellant”. The appellant submits his statement dated 11 November 2021 at [15] referred to “suffering pins and needles in his arms and hands during the performance of his duties” with Vanguarde. The appellant submits Dr Khong’s opinion on causation was given in a ‘fair climate’ and it was error that it was given no weight.[108]
[108] Appellant’s submissions, [40]–[43].
Dr Singh
The appellant refers to the reasons at [207], which refer to Dr Singh’s opinion as being based on an incorrect assumption, which can be inferred from the report, that the worker experienced neck and arm pain and pins and needles in the right arm during his employment with Vanguarde. The appellant quotes at some length from Dr Singh’s report dated 9 May 2022, including the doctor’s opinion on causation. The appellant notes the Member gave no real weight to Dr Singh’s opinion on the basis that the doctor had “an incorrect history”. The appellant submits Dr Singh supported the worker’s case on causation on the basis of repetitive neck and arm movements and a history of holding a phone between his neck and shoulder, while using his hands without the use of a handset (also referred to as a “headset” in the submissions). The appellant submits the worker gave evidence in his statement dated 11 November 2021 of pins and needles in his arms and hands while performing his duties. He submits the basis of Dr Singh’s opinion on causation was work tasks involving repetitive neck and arm movements answering phone calls without a headset. He submits the doctor’s opinion was given in a ‘fair climate’.[109]
[109] Appellant’s submissions, [44]–[48].
Dr Lee
The appellant refers to the reasons at [203] to [206]. Dr Lee’s opinion was rejected on the basis the worker failed to establish pain, pins and needles and numbness in the hands during 2017 and 2018, contrary to the assumption underlying Dr Lee’s opinion. The appellant refers to a lengthy list of material that Dr Lee reviewed when preparing his report. He refers to the history of injury taken by the doctor. The appellant submits Dr Lee’s opinion, contrary to the Member’s assumption, was based on the history of duties that involved holding the phone between his ear and shoulder. Dr Lee’s reports indicate this was an important factor.
The appellant submits Dr Lee was qualified by the respondent’s solicitor. The appellant submits it was an erroneous assumption that pain, pins and needles and numbness in the hands during 2017 and 2018 were an important factor in the doctor’s view, the doctor did not express that opinion.
Respondent’s submissions
The respondent submits the Member’s analysis was “very careful” and “extensive”. The intensity of the work and the equipment were an important aspect of the evidence and were in dispute. The appellant did not seek to cross-examine the respondent’s lay witnesses, whose evidence was assessed on the papers. The Member was able to assess the credibility of the appellant, who was cross-examined.[110]
[110] Respondent’s submissions, [60]–[62].
The respondent submits the Member gave specific reasons for rejecting Dr Lee’s opinion. The worker failed to establish that he experienced pain, pins and needles and numbness in his hands during 2017 and 2018. The Member found the worker’s self-reporting, which Dr Lee accepted in forming his opinion, was not accurate.[111] The respondent submits that Dr Khong, Dr Singh and Dr Lee all premised their opinions on the same assumptions. The Member did not accept the accuracy of the history on which the doctors relied. She was entitled to give those opinions little or no weight. There was no error of law or fact.[112]
[111] Respondent’s submissions, [60].
[112] Respondent’s submissions, [63]–[65].
Consideration
This ground is misconceived. The matters of history, on which the appellant’s submissions on this ground dwell, were not those which were crucial. The crucial discrepancy in the history as found, as opposed to the history on which the medical opinions were based, was that going to when the appellant developed symptoms. The discussion above at [58], [60] to [62] and [82] to [83] sets out multiple bases on which the Member did not accept the worker’s evidence regarding when he experienced neck and related complaints. The Member found that if the worker had a medical problem with the neck or cervical spine, he would raise it with Dr Ozser. She found that, save for a complaint of neck swelling on 12 September 2019 (described as of “no real significance” and almost two years after the Vanguarde employment ended) the worker did not complain to Dr Ozser about his neck until 2021. The Member found that the worker did not make relevant complaints about his neck and upper limbs while he was employed by Vanguarde or for a lengthy period thereafter. Whether these findings were properly available is discussed above in dealing with the earlier grounds. The discussion dealing with Ground No. 5 should be read with that relating to Grounds Nos. 1 to 4.
Dr Khong prepared reports dated 23 April 2021, 29 April 2021, 15 October 2021, 10 February 2023, 15 June 2023 and 25 September 2023. The initial consultation was on 23 April 2021. The history of presenting complaint in the report of that date described the onset:
“Property management/real estate for 25 years
In one particular job June 2017 to December 2017
July 2017, doing a lot of computer work
Keyboard was broken and flat, chair wheel was broken
Was also holding phone between left neck and left shoulder
Started to experience pain and numbness in the right arm and hand
Took 3 months off work
Then got another job April to November 2018, kept getting pain in right hand
Hasn’t worked since November 2018”.[113]
[113] ARD, p 96.
Dr Khong reported to the insurer on 29 April 2021, recommending C5/6 and C6/7 anterior cervical discectomy and fusion.[114] He reported to Dr Lim, general practitioner, on 15 October 2021. Dr Khong advised that the request for C5/6 and C6/7 discectomy and fusion was denied. Dr Khong reported to Dr Lim on 10 February 2023. Dr Khong’s impression included a history of “persistent neck pain and bilateral arm pain worse on the right since a work injury in 2017”.[115] Dr Khong reported to Dr Ozser on 15 June 2023.[116] He advised there was “some symptomatic improvement” and said that if symptoms were tolerable “we can hold off on the previously proposed [surgery]”. Dr Khong prepared a medicolegal report dated 25 September 2023.[117] The history of onset was consistent with that in the earlier reports. Dr Khong proceeded on the basis the onset of symptoms was while the worker was employed by Vanguarde.
[114] ARD, pp 98–99.
[115] ARD, pp 115–117.
[116] ARD, pp 118–120.
[117] ARD, pp 121–125.
Dr Singh furnished a medicolegal report dated 9 May 2022.[118] It followed a telehealth appointment. Dr Singh’s history stated:
“He has a history of neck and arm pain with worsening pins and needles in the right arm which are related to the nature and conditions of his employment with repetitive neck movements and using the phone to his ear with his shoulder, and other history as already provided to me.”
[118] ARD, pp 108–112.
Dr Lim’s report dated 28 July 2022 contained a history of injury regarding onset:
“Neck, shoulder and wrist injuries due to prolonged use of a keyboard and mouse at work.
He started at the company in June 2017 and began experiencing pain in his hand in July. He was working 10-12 hours a day, 6 days a week.”[119]
[119] ARD, p 113.
Dr Lee reported to the insurer on 16 November 2022. The doctor said that the appellant “corrected the record that the date of injury should be 14/06/2017. He noticed pain, pins, and needles sensation. He claimed the workstation was poorly set up.”[120]
[120] Reply, p 43.
The respondent submits the opinions of Drs Singh, Khong and Lee were given little or no weight because their histories were not accepted as accurate. The respondent submits this involved no error of law or fact on the Member’s part.[121]
[121] Respondent’s submissions, [65].
The above doctors furnished their opinions on the basis that symptoms came on while the worker was working in his job with Vanguarde. The report that is least specific on this topic is that of Dr Singh.
The Member noted that Dr Singh’s report “did not indicate precisely when the symptoms began but it can be inferred from his report that he assumed the neck and arm pain started during the employment with [Vanguarde]”.[122] The other qualified doctors in the case, who noted the history more fully, recorded a history that the relevant symptoms commenced at a time when the worker was working with Vanguarde. In Luxton v Vines the plurality said that, to draw an inference in a civil case, “you need only circumstances raising a more probable inference in favour of what is alleged”.[123] I accept that it was open to the Member to draw the inference which she did regarding Dr Singh’s history.
[122] Reasons, [207].
[123] [1952] HCA 19; 85 CLR 352, 358.
On a fair reading of the reasons at [202] to [214], it is apparent that the discrepancy in recorded histories, which deprived the appellant’s medical case of weight, was that going to when the appellant developed relevant symptoms. This is spelled out in the reasons at [206] to [210]. The Member at [211] said:
“I am satisfied that the [worker] did not report to any doctor any neck symptoms or paraesthesia in the right hand after he left the employment of the first respondent on 1 December 2017 before July or August 2019. This is, in my view, too long a period for that employment to be implicated as a cause of a neck injury that now requires surgery.”
The factual findings made by the Member were inconsistent with the history relied on by those doctors who supported the appellant’s case. As the Member found, this deprived the appellant’s medical case of probative weight.
Ground No. 5 fails.
CONCLUSION
The appellant’s grounds essentially involved challenges to the Member’s fact-finding. The Member’s analysis was careful and detailed. The appellant has not succeeded in establishing error within the meaning of s 352(5) of the 1998 Act. All of the grounds have failed. The appeal is dismissed.
DECISION
The Certificate of Determination dated 29 April 2024 is confirmed.
Michael Snell
DEPUTY PRESIDENT
25 March 2025
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