Cathay Pacific Airways Pty Ltd v Ralph - [2019] NSWWCCPD 21

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cathay Pacific Airways Pty Ltd v Ralph [2019] NSWWCCPD 21
APPELLANT:	Cathay Pacific Airways Pty Ltd
RESPONDENT:	Peter Henry Ralph
INSURER:	GIO NSW Workers Compensation
FILE NUMBER:	A1-3874/18
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	27 November 2018
DATE OF APPEAL DECISION:	24 May 2019
SUBJECT MATTER OF DECISION:	Proof of injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Baker & Borthwick
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 27 November 2018 is revoked, and in substitution an award is entered in favour of the respondent employer.

BACKGROUND

Peter Henry Ralph (the worker) was employed by Cathay Pacific Airways Ltd (the employer) as a commercial pilot. When he last flew for the employer, in 2011, he was a Senior Captain.
The worker was assaulted by a passenger on 23 January 1998, on a flight from Hong Kong to London. He suffered a contusion to the kidney, together with neck and back pain. On his return to Hong Kong, the worker was admitted to hospital, and then returned to Australia, where he resided. He was off work until 1 May 1998, when he resumed flying duties. This incident was not relied on in the current proceedings. The explanation may well lie in correspondence from solicitors then acting for the employer, dated 8 September 2015.[1] It was there stated that the worker’s contract of employment at the time of the 1998 injury was not with the employer, but “with a separate entity of the same name which was registered in Hong Kong”. It was stated that the worker’s employment with the employer did not commence until 17 January 2011.
[1] Application to Resolve a Dispute (ARD), pp 149–150.
The worker had difficulties with his lower back. He eventually came under the care of Dr Kahler, a neurosurgeon in Brisbane, who performed surgery on 24 July 2006, decompressing the right S1 nerve root. The doctor carried out revisionary surgery on 28 July 2006, to repair a dural tear. The worker resumed flying on 8 December 2006.
The worker suffered worsening back symptoms in 2011. On 15 September 2011 Dr Redmond, a neurosurgeon in Brisbane, performed a laminectomy at L5/S1 to excise protrusion at L5/S1, and then re-operation to deal with “fragments of discs still protruding”, on 30 September 2011. The worker developed a locked knee whilst undergoing rehabilitation in hospital, which required arthroscopic meniscectomy.[2] The worker suffered from a staph infection at the site of the lumbar surgery. There was necrosis of the residual L5/S1 disc and localised bone destruction.[3] The worker came under the care of Dr Askin, an orthopaedic surgeon in Brisbane, on 23 November 2011. He performed debridement of the L5/S1 disc and an instrumented fusion.[4]
[2] Dr Askin’s report dated 28 November 2011, ARD, p 603.
[3] Dr Cock’s report dated 5 October 2012, ARD, pp 28–30, Dr Redmond’s report dated 3 November 2011, ARD, p 606.
[4] Dr Ferch’s report dated 7 April 2016, ARD p 16.
The worker did not carry out duties with the employer after 9 September 2011. The employer thereafter paid wages to the worker until 24 June 2013, when the pleaded weekly claim commences.[5] The employer terminated the worker’s employment by letter dated 18 October 2013, effective 13 November 2013.[6]
[5] Transcript of proceedings, Ralph v Cathay Pacific Airways Pty Ltd (WCC, [2018] NSWWCC 295, Arbitrator Batchelor, 24 October 2018), 16.1–4.
[6] ARD, pp 178–179.
Four previous sets of proceedings in the Commission between the parties were discontinued (4938/16, 2153/17, 5578/17 and 1766/18). The ‘injury’ allegation in the current matter is of L5/S1 disc prolapse. It is alleged that the worker “twisted around in the pilot seat with his left arm to retrieve a log book that weighed between 2 and 3 kg, which was located behind the Captain’s seat”. It is alleged the injury “manifested sufficiently” from that activity, or “was the final result of workplace activity over some time”. Those activities are described as sitting for prolonged periods, frequent twisting and rough landings. The current proceedings claim weekly compensation from 24 June 2013, medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), the cost of domestic assistance, and lump sum compensation pursuant to s 66 in respect of the lumbar spine and psychological injury.

THE ARBITRAL PROCEEDINGS AND DECISION

These proceedings were commenced by way of the ARD registered on 30 July 2018. The matter was listed for arbitration hearing on 28 September 2018 and 24 October 2018. Dr Cavanagh instructed by Mr Hagan appeared for the worker. Mr Saul instructed by Mr Franco appeared for the employer. There was no oral evidence. Counsel for the parties addressed, and the Arbitrator reserved his decision.
The Commission issued a Certificate of Determination dated 27 November 2018, accompanied by 25 pages of reasons.[7] The Arbitrator made an award in the employer’s favour, on the allegation of a frank injury occurring on 9 September 2011. He made a finding of injury over the period 17 January 2011 to 9 September 2011, being the aggravation, acceleration, exacerbation or deterioration of a pre-existing disease injury in the lumbar spine, with a deemed date of 9 September 2011. He found employment was a substantial contributing factor to this injury. He found the worker was not barred from recovery on the basis of the notice and claim provisions in ss 254 and 264 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). He made a finding of total incapacity. He awarded weekly compensation from 24 June 2013 to 12 March 2014. He ordered the payment of medical and related expenses pursuant to s 60 of the 1987 Act, in respect of the lumbar spine, but excluding the cost of surgery to the lumbar spine from 9 September 2011 and thereafter. He made an award for the respondent on the other medical expenses claimed. He remitted the matter to the Registrar for assessment of permanent impairment in respect of the found injury.
[7] Ralph v Cathay Pacific Airways Ltd [2018] NSWWCC 295 (reasons).
The Arbitrator, dealing with the allegation of a frank incident on 9 September 2011, referred to documentary evidence following this alleged incident, in which a history of it was not recorded. He referred to the report of Dr Cocks, a doctor employed by Cathay Pacific in Hong Kong, immediately after the flight on which the incident was said to have occurred. He referred to letters from Mr Lomax (an officer of the employer) to the Bank of Queensland in 2012 and 2013. He referred to multiple entries in the records of Dr Golder (the worker’s general practitioner), including entries in September and October 2011. He referred to histories recorded by Dr Redmond (the operating neurosurgeon in 2011) and Dr McCormack (an infectious diseases specialist) in September and October 2011. He referred to the history recorded in the notes of the Mater Private Hospital, Brisbane, in November 2011. The Arbitrator acknowledged the care that should be taken by decision makers in dealing with clinical notes from medical practitioners.[8] He regarded it as “significant” that none of the above had a record of an incident in the cockpit on 9 September 2011.[9]
[8] Referring to Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and Nominal Defendant v Clancy [2007] NSWCA 349.
[9] Reasons, [68]–[83].
The Arbitrator referred to the worker’s statement, in which he said that he had “some discomfort” in the early part of September 2011, prior to 9 September 2011, but was “fit to fly”. He described this as “at odds” with the notes of Dr Golder, and said he “accepted the clinical notes in preference to what [the worker] says”. Dr Ferch, neurosurgeon, in the worker’s case did not record a history of such an incident. The MRI scan carried out on 2 September 2011 was described by Dr Papantoniou,[10] as showing a large L5/S1 disc prolapse with impingement on the nerve root. Dr Papantoniou’s opinion proceeded on the mistaken understanding the MRI scan post-dated the alleged injury in the cockpit, saying “[i]t would be unheard of for the [worker] to have the pathology identified in 2011 on MRI and not have significant pain and difficulty”. The Arbitrator referred to the report of Dr Machart, orthopaedic surgeon. Dr Machart said the operation on 15 September 2011 was “based on the pathology evident on the MRI”.[11] The Arbitrator made a finding of fact, which is not the subject of challenge before me:
“Having regard to this extensive medical and lay evidence which I have just summarised, I am not satisfied on the balance of probabilities, that the applicant has discharged the onus upon him to show that he suffered the large right paracentral L5/S1 disc prolapse on 9 September 2011.”[12]
[10] Dr Papantoniou’s report dated 14 February 2017, ARD pp 344–349.
[11] Reasons, [85]–[97].
[12] Reasons, [98].
The Arbitrator then dealt with the allegation of injury due to the ‘nature and conditions’ of employment. (This generic term has been periodically criticised for its lack of precision and meaning; the parties and the Arbitrator used it to describe the allegation of injury due to the nature of the work of a pilot; I will use it in that context.) The Arbitrator referred to a passage in the report of Dr Dingsdag:
“I am of the opinion that in requiring the [worker] to perform the manual handling activities he did, unsupervised, untrained, without adequate instruction and without a risk assessment, the obvious and foreseeable consequences occurred and he sustained the predictable injury. I attribute the [worker’s] injuries to the failure of the [employer] to provide a safe system of work and hence a safe place of employment.”[13]
[13] Dr Dingsdag’s report dated 25 June 2017, ARD p 486, quoted in Reasons, [103].
The Arbitrator said the worker’s case was presented on the basis that the period of employment on which he relied was that after January 2011 (referring to the pleading in the ARD) when it was accepted that the employer was the corporate entity nominated in the current proceedings.[14] He said the evidence supported a finding that there was an increase in the worker’s lumbar symptoms both during the period from January 2011 to 9 September 2011, and during the worker’s last flight on 9 September 2011, from Malaysia to Hong Kong.[15] If employment contributes to a worsening of symptoms, that will be an aggravation, etcetera of the illness, even if there was no worsening of the underlying disorder in a medical sense.[16] If the date of injury was prior to 19 June 2012, this predated relevant commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act), and s 4(b)(ii) required that employment be a contributing factor to such aggravation. The Arbitrator made that finding.[17] Contrary to the worker’s submissions at the arbitration hearing, the Arbitrator made a finding that the worker did suffer from injury to his lumbar spine in 1998, which continued to trouble him, and culminated in the surgery carried out by Dr Kahler in 2006.[18]
[14] Reasons, [114].
[15] Reasons, [113].
[16] Reasons, [109], referring to Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch).
[17] Reasons, [113].
[18] Reasons, [117].
The Arbitrator found the date of the ‘disease’ injury was 9 September 2011, the date of incapacity. He found weekly compensation was payable from that date, notwithstanding that the worker only claimed weekly benefits from 24 June 2013. It followed that the second entitlement period ceased as at 12 March 2014.[19] The Arbitrator found that the deemed date of injury, for the purposes of the lump sum claim, was also 9 September 2011, rejecting an argument by the respondent that there should be two different deemed dates.[20] This aspect of the decision is not challenged on appeal.
[19] Reasons, [118]–[119].
[20] Reasons, [123]–[124].
The Arbitrator then dealt with the defences pursuant to s 254 of the 1998 Act (notice of injury) and s 261 of the 1998 Act (failure to make a claim). He concluded that these defences did not have application in the circumstances.[21] This is not challenged on appeal. The Arbitrator then dealt with the entitlement to weekly compensation and expenses pursuant to s 60 of the 1987 Act.[22] That aspect of the decision is not challenged on appeal.
[21] Reasons, [125]–[132].
[22] Reasons, [133]–[142].
This appeal is brought against the finding of a ‘disease’ injury (and satisfaction pursuant to s 9A of the 1987 Act) based on the ‘nature and conditions’ of the worker’s employment, from January 2011 to 9 September 2011.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both 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 following grounds of appeal are raised:
(a)    The Arbitrator erred in fact and law finding that the worker suffered injury to his back/lumbar spine as a result of the nature and conditions of employment with the employer between 7 January 2011 and 9 September 2011. (Ground No 1)
(b)    The Arbitrator erred in fact and law in relying on the opinion of Dr Donald Dingsdag, who is not medically qualified, when finding that the worker suffered injury to his back/lumbar spine as a result of the nature and conditions of employment with the employer. (Ground No 2)
(c)    The Arbitrator erred in fact and law in failing to properly consider whether employment was a ‘substantial contributing factor’ pursuant to s 9A and/or s 16 of the 1987 Act. (Ground No 3)
(d)    The Arbitrator erred in law in failing to give adequate reasons as to what aspect of the ‘nature’ and the ‘conditions’ of the worker’s duties gave rise to injury. (Ground No 4)
Grounds Nos 1 and 2 both raise issues going to the availability of the Arbitrator’s finding on the ‘disease’ injury on the evidence, and there is overlap between them. It is convenient to deal with those grounds together.

THE NATURE OF THIS APPEAL

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[23] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[24] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[25]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(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’.”[26]
[23] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[24] (1966) 39 ALJR 505, 506.
[25] [1996] HCA 140; 140 ALR 227.
[26] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[27] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[28]
“… 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.”[29]
[27] [2017] NSWWCCPD 5, [67].
[28] [2001] FCA 1833, [28].
[29] Raulston, [20].
In Northern NSW Local Health Network v Heggie[30] Sackville JA 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, per Mason and Deane JJ.”[31]
[30] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[31] Heggie, [72].

EMPLOYER’S SUBMISSIONS ON GROUNDS NOS 1 AND 2

The employer correctly observes that the opinions of Dr Ferch and Dr Papantoniou do not support the allegation of a ‘disease’ injury. The employer submits there is “no support whatever for a work related nature and conditions/disease claim” from any of the treating doctors since 1998. The employer submits the “common thread” in the opinions is that the 1998 injury caused a “significant disc prolapse at L5/S1 [that] never resolved and progressively got worse”, the “natural progression of the [worker’s] degenerate lumbar spine”. By 2004 there was severe low back pain, with decompression surgery, followed by re-exploration in 2006.[32] The employer refers to the clinical records of Dr Golder in September 2011. On 2 September 2011, Dr Golder recorded the worker’s back had been “terrible”, there was right leg pain, the worker was to make an appointment with a neurosurgeon. There was mention of a cruise in Canada and renovations at home. There was “no mention of any work involvement”. The MRI scan report dated 5 September 2011 revealed protrusions from L3 to S1, and a large right para central disc protrusion at L5/S1. On 6 September 2011, Dr Golder referred the worker to Dr Redmond, the neurosurgeon. Dr Redmond proposed a discectomy.[33] Dr Golder’s entry on 12 September 2011 said “Back pain is no better. He is seeing [Dr Redmond] in 2 days.”[34]
[32] Appellant’s submissions, [1]–[3].
[33] Appellant’s submissions, [6]–[9].
[34] Appellant’s submissions, [10]–[11].
The employer submits the Arbitrator did not articulate what the work duties were, that were alleged to give rise to an increase in symptoms, other than “being engaged in flying”. What was required was an analysis of the duties, and expert medical evidence establishing a connection. Neither of these were present.[35] The employer submits the Arbitrator erred, in making this finding of injury without articulating what the actual duties and conditions were that caused the aggravation injury.[36]
[35] Appellant’s submissions, [12]–[14].
[36] Appellant’s submissions, [18]–[19].

The employer submits the Arbitrator relied on the report of Dr Dingsdag as a foundation for his finding of a ‘disease’ injury. Dr Dingsdag is not a medical practitioner, he has a PhD in industrial relations and OHS. He was not qualified to express an opinion on the worker’s lumbar pathology and the effect that certain activities may have on it. Only a medical practitioner has the relevant expertise. There was no medical evidence that permitted the Arbitrator to make the finding of a ‘disease’ injury. The Arbitrator erred in relying on Dr Dingsdag in this regard.

WORKER’S SUBMISSIONS ON GROUNDS NOS 1 AND 2

The worker submits the Arbitrator correctly referred to Semlitch – it is unnecessary to show a change in pathology, it is sufficient if there is a worsening of symptoms. As the alleged ‘disease’ injury predated commencement of the 2012 Amending Act, employment only had to be a ‘contributing factor’ to the ‘disease’ injury, not the ‘main contributing factor’. The Arbitrator, in his reasons at [97], accepted the opinion of Dr Machart. Dr Machart accepted that employment after January 2011 could have caused further injury or aggravation: “Possibly could have, but not a great deal, one tenth maximal.” The worker submits it was permissible to rely on this opinion, to support the finding that an aggravation had occurred. Reference is made to EMI (Australia) Ltd v Bes.[37]
[37] [1970] 2 NSWR 238; WCR 114 (Bes), 119.
It is submitted the Arbitrator also had regard to the evidence of the worker. In the reasons at [107] the Arbitrator by inference accepted the worker’s evidence in his statement dated 8 August 2016, that his back became progressively weaker during 2011, particularly during the last flight on 9 September 2011. In the reasons at [103] to [105], the Arbitrator dealt with the evidence of Dr Dingsdag, who analysed the work duties, and referred to prolonged sitting and twisting. The worker submits Dr Dingsdag was qualified to provide an analysis of the duties and the risk of them causing injury. The Arbitrator identified the relevant work duties, being “the duties of a pilot”, namely “prolonged sitting and twisting”. It was these that were considered by Dr Machart and Dr Dingsdag. The worker refers also to the views of Dr Cocks.[38]
[38] Respondent’ submissions, [11]–[14].
The worker submits the Arbitrator’s use of Dr Dingsdag’s opinion was limited to identification of the work duties, and the causal connection of those duties to the diagnosis made by Dr Machart. Dr Dingsdag was qualified to provide an opinion on these matters. The Arbitrator did not rely on Dr Dingsdag for a medical diagnosis.

EMPLOYER’S SUBMISSIONS IN REPLY ON GROUNDS NOS 1 AND 2

The employer submits the opinion of Dr Machart is inconsistent with the use the worker seeks to make of it. The worker did not complain to Dr Machart of any specific injury caused by the ‘nature and conditions’ of his employment from January to September 2011. Dr Machart accepted the history given to him of a frank injury on 9 September 2011 (an injury ultimately rejected by the Arbitrator). Injury due to the ‘nature and conditions’ of employment from January to September 2011 was neither alleged by the [worker] nor considered by Dr Machart at the time of the examination. The employer refers to the passage from Dr Machart’s report quoted by the Arbitrator in the reasons at [97], which includes:
“I consider the incident on 9 September 2011 as having contributed to a very small amount to the overall pathology which was largely pre-existing.”
The employer submits that Dr Cocks does not assist the worker. Dr Cocks makes no reference to ‘nature and conditions’ in his report. His opinion was:
“In my opinion, which is shared by most of the specialists who have seen him, Captain Ralph’s current problems stem from the direct and indirect results of the injuries he suffered in 1998 as a result of an assault sustained on board CX.”

CONSIDERATION

It is necessary to read Dr Machart’s report as a whole. His views do not assist the worker. Dr Machart recorded a history of back injury in 1998 in the assault, followed by deterioration over subsequent months and years, and the development of sciatica. There was a description of the two surgical procedures in July 2006. The doctor recorded:
“Mr Ralph initially told me that he was virtually pain-free suffering only occasional low back pain and less frequent leg pain, requiring occasional course of physiotherapy and occasional rest until the time of injury, which you recorded on 10 or 11 September 2011, the date I presume in your letter of instructions corresponding to 9 September 2011, description of injury aggravation of pain when he turned to his left to retrieve a log book in the cockpit.”[39]
[39] ARD, p 807.
Dr Machart recorded that he raised, with the worker, that an MRI scan was performed on 2 September 2011. The doctor recorded the worker saying that he did not have a good recollection about details, and that over several months prior to September 2011 there was a gradual increase in the severity of his back pain. Dr Machart said he was “persuaded that there was a gradual increase in the severity of symptoms which culminated in the need for MRI”. Dr Machart did not approach this increase in symptoms, prior to the alleged twisting incident, as being associated with further injury. The doctor said:
“I consider the incident on 9 September 2011 as having contributed a very small amount to the overall pathology which was largely pre-existing.”[40]
And:
“The relative contribution from the injury on 9 September 2011 was one tenth. The injury in 1998 was responsible for nine tenths.”[41]
[40] ARD, p 811.
[41] ARD, p 812.
The passage referred to in [28] above refers to “one tenth maximal”. When read in the context of the report as a whole, it is apparent the doctor was referring to the small proportion of the overall impairment which the doctor regarded as resulting from the incident on 9 September 2011, of which he was given a history. The only two sources of injury referred to by Dr Machart were the assault in 1998, and the alleged injury on 9 September 2011. Contrary to the worker’s submission, the opinion of Dr Machart does not support the occurrence of the alleged ‘disease’ injury.
The worker refers to Semlitch, correctly identifying that a worsening of symptoms is consistent with an injury involving the aggravation, etcetera of a disease, and that proof of such an injury does not necessarily involve a change of pathology. The Arbitrator approached proof of the alleged ‘disease’ injury, on the basis that the deemed date of injury was prior to commencement of the 2012 Amending Act.[42] This approach was available, consistent with the reasoning in Collingridge v IAMA Agribusiness Pty Ltd[43] and the authorities cited therein, and is one I agree with. However, acceptance of worsening symptoms does not, without more, establish the occurrence of the alleged ‘disease’ injury. Dr Machart did not approach the matter on the basis that worsening symptoms were associated with the duties of a pilot. Dr Machart, referring to the symptomatic worsening in 2006 which led to the initial surgery, said:
“I did not see evidence of injury in 2006. 2006 was natural progression of the disease process, noting that the sciatica developed in 2004, which culminated in surgery in 2006.”
[42] Reasons, [120]–[124].
[43] [2011] NSWWCCPD 31; 10 DDCR 174.
The definition of ‘injury’ in s 4 of the 1987 Act, prior to commencement of the 2012 Amending Act, relevantly provided:
“4     Definition of ‘injury’ (cf former s 6 (1))
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”
It remained necessary that the worker establish that “the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”.
In Onesteel Reinforcing Pty Ltd v Sutton[44] Allsop P (McColl and Basten JJA agreeing) said:
“Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”[45]
[44] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
[45] Sutton, [3].
In the same case, McColl JA (Basten JA agreeing) said:
“It might be accepted that provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (at [49]) per Gleeson CJ and McHugh J; Southwest Sydney Area Health Service v Edmonds (at [88])) and, further, r 15.2 of the Workers Compensation Commission Rules recognises that ‘evidence before the Commission must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’’: Southwest Sydney Area Health Service v Edmonds (at [131]). It is nevertheless necessary to be alert to the fact that ‘the rules of evidence, excluded by statute, [should not be allowed] to ‘creep back through a domestic procedural rule’’: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (at [17]) per French CJ.
Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Southwest Sydney Area Health Service v Edmonds (at [129]) referring to Smith v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 (at [32]) per Mason P (Handley JA and Campbell J agreeing).”[46]
[46] Sutton, [59—[60].
The question of whether the worker’s duties as a pilot constituted a contributing factor, to the aggravation, etcetera of the disease in his lumbar spine, was not one that was “within the realm of common knowledge or experience”.[47] In Lithgow City Council v Jackson,[48] the plurality said:
“The respondent’s proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court’s experience of ordinary life. The proposition turns on an inference from the nature of the respondent’s injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.”[49]
[47] See Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720, 724.
[48] [2011] HCA 36; 244 CLR 352; 281 ALR 223; 85 ALJR 1130 (Jackson).
[49] Jackson, [66].
On the evidence in the current matter, there were various potential explanations of the increase in the worker’s symptoms in 2011. One was that this simply represented the natural progression of the disease process, the basis on which Dr Machart explained the increase in symptoms in 2006 which led to the earlier surgical procedures (over a time when the worker had also been working as a pilot).[50] There were other potentially causative factors raised on the basis of the clinical notes of Dr Golder (see [25] above). In the circumstances of the case, proof of the ‘disease’ injury required acceptable medical evidence on the issue of whether the worker’s employment was a contributing factor to the increase in symptoms in 2011 (which the Arbitrator accepted occurred[51]). There was an absence of such evidence.
[50] By way of example, see Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 422, [18].
[51] Reasons, [113].
The worker’s submissions on appeal seek to fill this lacuna by reference to Dr Machart’s report, the worker submitting:
“It was open, and in accordance with the evidence, for the [A]rbitrator to find that there was an increase of symptoms during 2011 and the increase in symptoms [sic]. Further, in accordance with the medical opinion of Dr Machart, the OHS opinion of Dr Dingsdag and the lay evidence of the respondent, that the increase was as a result of the [worker’s] flying duties with the [employer].”[52]
[52] Respondent’s submissions, [13].
The worker submits he did not rely on the opinion of Dr Dingsdag “to provide a medical diagnosis, but for an analysis of the work duties the [worker] was required to perform between January 2011 and September 2011”.[53]
[53] Respondent’s submissions, [19].
The worker needed to prove that the work duties were a contributing factor to the alleged aggravation of lumbar spinal disease. This was an issue, at least in part, of medical causation, that did not fall within Dr Dingsdag’s expertise. The attempt to rely on Dr Machart’s opinion cannot succeed, as it involves, for reasons given above, a misreading of the doctor’s opinion when his report is read as a whole. This is not, like Bes (to which the worker refers) a matter where medical experts find a possibility reasonably acceptable, and a court or tribunal may look to the whole of the facts to consider whether the possibility is established. Accepting, as the Arbitrator did, that there was an increase in lumbar symptoms during 2011, the worker cannot succeed in establishing the alleged ‘disease’ injury. The medical evidence does not deal with the issue of whether the worker’s duties as a pilot contributed to that symptomatic change. The worker cannot, on the evidence, establish that the employment was a contributing factor to the aggravation. The Arbitrator’s finding on this issue was not available on the evidence, and involved error.
I should refer also to a Presidential decision of Kara v Australian Integrated Suppliers t/as Guven Kebab Factory,[54] which is referred to in the Arbitrator’s reasons at [112]:
“In Kara v Australian Integrated Suppliers t/as Guven Kebab Factory O’Grady DP held at [48] that an increase in symptoms in the worker’s neck in the presence of significant pre-existing degenerative changes in the neck, must constitute a finding that injury to the neck was received at the relevant time.” (footnote omitted)
[54] [2011] NSWWCCPD 11 (Kara).
Simply stated in this fashion, the decision appears to be stated as authority that an increase in symptoms, in the presence of significant degenerative changes, must of itself be consistent with a finding of injury. That proposition cannot be correct. Kara involved a worker who fell in the course of his employment, and thereafter suffered from increased neck symptoms. The Arbitrator made findings both that the worker did not injure his neck in that incident, and that the increase in neck symptoms resolved within a period of three years. The findings were attacked as being contradictory. On appeal, O’Grady DP said that “acceptance of the manifestation of such symptoms must represent a finding that an injury within the meaning of s 4 of the 1987 Act had been received”.[55] The reference to that decision, in the context of its own facts, makes sense. The decision in Kara was not relied on by either of the parties in this appeal. I refer to it for the sake of completeness. It is not of importance to the outcome of this appeal.
[55] Kara, [48].
Grounds Nos 1 and 2 are upheld.

CONCLUSION

The only basis on which the worker succeeded before the Arbitrator, on the question of ‘injury’, was on his allegation of injury based on the ‘disease’ provisions of the legislation. For reasons given above, that finding in the worker’s favour cannot stand, and there must be an award in the employer’s favour. It is unnecessary to deal with the remaining grounds. Given my conclusion that the evidence could not support a finding that employment was a contributing factor to the symptomatic aggravation in 2011, it follows that the more stringent test of ‘substantial contributing factor’, pursuant to s 9A of the 1987 Act, could not have been satisfied. Section 9A was the subject of Ground No 3.

DECISION

The Certificate of Determination dated 27 November 2018 is revoked, and in substitution an award is entered in favour of the respondent employer.

Michael Snell

DEPUTY PRESIDENT

24 May 2019