Central Coast Coolrooms Pty Ltd v Tate - [2017] NSWWCCPD 30

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Central Coast Coolrooms Pty Ltd v Tate [2017] NSWWCCPD 30
APPELLANT:	Central Coast Coolrooms Pty Ltd
RESPONDENT:	Colin Tate
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6511/16
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	17 March 2017
DATE OF APPEAL DECISION:	17 July 2017
SUBJECT MATTER OF DECISION:	Workers Compensation Act 1987; s 4(b)(ii)
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Peninsula Law Solicitors
ORDERS MADE ON APPEAL:	1. The decision of the Arbitrator is confirmed.

INTRODUCTION

On 17 March 2017 an Arbitrator of the Workers Compensation Commission issued a Certificate of Determination pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as follows:
“1.     The applicant suffered an injury to his cervical spine on deemed date of 11 July 2016.
2.     I find the proposed surgery by Dr Coughlan to be reasonable and necessary.
3.     The PIAWE is agreed at $1,347.40.
4.     The respondent will pay the applicant the sum of $1,280.04 from 11 July 2016 to 10 October 2016 pursuant to s 36.
5.     The respondent will pay the applicant the sum of $1,077.92 per week from 11 October 2016 to date and continuing pursuant to s 37.
6.     The respondent will pay the costs of the surgery as proposed by Dr Coughlan in his report of 22 August 2016 together with incidental expenses.
7. The respondent will pay the applicant’s s 60 expenses otherwise incurred.”
I note that the test as formulated in [2] of the Certificate of Determination is incorrect but no ground of appeal turns on that incorrect formulation.
The Appeal is from that determination. Five grounds of Appeal (for convenience identified by the headings in the submissions made by the appellant), are relied upon namely:
Ground 1 – Absence of Evidence for s 4(b)(ii) Finding.
Ground 2 – Absence of Evidence for s 60 Finding.
Ground 3 – Error of Fact Regarding Lay Evidence.
Ground 4 – Denial of Procedural Fairness.
Ground 5 – Failure to Engage with the Evidence.
In my view, the appeal should be dismissed and the Arbitrator’s decision encompassed in the Certificate of Determination dated 17 March 2017 should be confirmed. My reasons follow.

NATURE OF THE APPEAL

The appeal is pursuant to s 352 of the 1998 Act. The jurisdiction is:
“352(5) 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.”

THRESHOLD MATTERS

The respondent concedes that the appeal has been brought in time (Notice of Opposition to Appeal Against Decision of Arbitrator, page 5, 2.1).
The respondent concedes that there is no threshold issue either as to quantum or the percentage amount awarded by the Arbitrator (page 5, 2.2).
The appellant and the respondent have requested that the appeal be determined on the papers. The respondent has requested that, in the event that the appeal is allowed, I should determine the matter on the evidence adduced and the submissions made to the Arbitrator and recorded in the transcript (T).
I am satisfied that sufficient information has been supplied in connection with the proceedings to permit me to determine the Appeal without a conference or formal hearing in accordance with s 354(6) of the 1998 Act.

BACKGROUND FACTS

Mr Tate was born in 1963. He commenced employment with Central Coast Coolrooms Pty Limited on 10 May 2004.
On 2 November 2015, in the course of his employment he tripped over the support leg of a lifting apparatus. He fell but continued working that day and the next day. On the Friday of that week he commenced two weeks’ annual leave.
He returned to work after two weeks on leave and continued working until Christmas. After the Christmas break he returned to work until 11 July 2016.
He has not worked since 11 July 2016.
In the Application to Resolve a Dispute (ARD) Mr Tate sought weekly compensation commencing 11 July 2016, an Award in respect of past treatment, care and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) and an Award in respect of future treatment, care or related expenses in an amount of $53,500, including an amount of $50,000 for an anterior cervical C5/6 discectomy.
The injury details were as follows:
“Date of Injury: 3 November 2015 and 11 July 2016 (deemed)
Place of Injury: Various
Injury description: Injury to neck - severe central canal stenosis at C5/6
Describe how the injury happened: The worker has suffered this injury as a result of:
(i)3 November 2015 a trip and fall accident at work and/or
(ii)11 July 2016 (deemed) date of injury working in his employment over a period of 13 years where he was required to repetitively carry large insulation panels, up 6 metres [as written] in length and weighing approximately 50 to 100 kilos by hand and over head.”

THE ARBITRATOR’S FINDINGS AND CONCLUSIONS

The Arbitrator gave an ex tempore decision on 15 March 2017. A transcript (T) has been prepared and made available to the parties.
He reviewed the evidence, at length and made relevant findings:
(a)     Mr Tate was a stoic, hardworking, simple man who did not pretend to know anything about medicine (T12.34–13.2, 22.22–25);
(b)     Mr Tate’s history of trying to get back to work and waiting to see if his condition would improve should be accepted (T14.10), and
(c)     having regard to the lay evidence there was something wrong with Mr Tate after the incident on 2 November 2015 (T15.20).
The Arbitrator accepted the worker’s statement at paragraphs [34]–[41], in particular paragraphs [34]–[37] (pages 9/10). In my view, he must be taken to have accepted as correct:
(a)     paragraph [34]:
“I first started to experience pain in my neck after tripping over the legs of a lifting apparatus in November 2015. …”
(b)     paragraphs [36] and [37]:
“36.I fell to the side and landed on my right side on a concrete floor. I did not feel any immediate pain and was more concerned about getting up and getting the box section locked into place.
37.I finished work that day and went home. I settled down after I had a shower and it was not until the next day that I started to feel some pain in my neck …”
(c)     paragraphs [40] and [44]–[47]:
“40.… But after I went back to work the continual lifting and moving of the panels did not help the condition and the pain was coming back and becoming more intense. I thought I would continue working until Christmas and have another rest over the Christmas and New Year break which I did. But after going back to work I found out I was not getting better and the pain was continually present.
…
44.On a daily basis I was telling the management of Central Coast Coolrooms that I need a break because I was suffering pain in my back and neck. The main person I spoke to was Wendy Wilson. I told her on a daily basis about my pain and also that I needed some time off. I also mentioned it to Karl Nixey. Every employee at the company would have known that I was suffering from pain in my back and neck.
45.I did not make any further written reports to my employer about the incident. The response I received from the various people I spoke to at the time of telling them I was suffering pain was that they also were suffering pain, and basically get back to work.
46.In July 2016, I spoke to Wendy and John Wilson about my condition. At that time I had pain in my neck, back and legs and my balance was also being affected. They agreed for me to take a month off to get better and said to take sick leave, RDOs and annual leave.
47.I went on leave from work on 11 July 2016 and I have not returned to work since that time.”
The Arbitrator accepted that:
(a)     The fall on 2 November 2015 was of some significance (T29.10–30).
(b)     The type of work the applicant was doing involved lifting heavy panels.
(c)     As a result of the heavy work “there would be potential for the aggravation and deterioration of the neck condition” (T31.12).
The Arbitrator said:
“There is no issue before me that this work caused the pathology from which the applicant suffers. The issue is as to whether what happened to him aggravated it” (T26.32–35).
By the above, the Arbitrator intended to convey the meaning that the pathology existing was not caused by the work but that the issue was whether events in the course of employment aggravated this existing pathology. The Arbitrator did not limit his consideration to matters after 2 November 2015.
At T31.15–33 the Arbitrator made a critical finding:
“Mr Mansfield asked rhetorically whether there was any evidence from Dr Higgs or Dr Coughlan’s report referring that there was an aggravation. The answer to that rhetorical question, I think I just answered by saying that yes there was. Mr Mansfield said that too long a gap between the fall and the onset of symptoms in the neck to make the fall directly responsible for it. That may or may not be true, but it’s not a matter I have to decide, because as I have already said, it’s the nature and conditions of the work, once he had that fall, that caused the deterioration which caused the injury.
It may very well be that something happened in that fall. It was certainly hard enough, to set in train a process that would cause a myelopathy, but I’m satisfied in (implementing)(as transcribed) contrast to Mr Baker’s submission, that this is not a frank injury, but is the aggravation of a pre-existing condition. It’s not a 4(a) injury, I’m saying it’s a 4(b)(ii) of the 1987 Act injury.”

GROUNDS OF APPEAL

Ground 1 – Absence of Evidence for s 4(b)(ii) Finding

The appellant submits that the Arbitrator’s finding of injury pursuant to s 4(b)(ii) due to the “events after the respondent worker’s return to work from November 2015 is one that was made without evidence in support and without adequate explanation”. It may be noted that the passage quoted by the appellant and recorded above is not limited to the events after 2 November 2015.
The appellant submits that there were multiple specialists, including Drs Higgs, Coughlan and Breit, that had offered opinions on diagnosis and causation and that it was an error of fact and law for the Arbitrator to supplant those opinions with his own finding that it was the nature and conditions of the work once he had the fall that caused the deterioration. (appellant’s submissions at [25] and [26]).
That, in my view, misstates the Arbitrator’s approach and places far too much emphasis on the brief statement of conclusion made by the Arbitrator at T31. It does not acknowledge the consideration given by the Arbitrator to the lay and medical evidence prior to that conclusion.
The Arbitrator accepted Mr Tate’s narrative evidence. As I understand the Appeal this acceptance of the applicant’s narrative evidence is not challenged. This has important consequences for the Appeal.
Acceptance of Mr Tate’s evidence means the following facts are established:
(a)     Mr Tate first commenced to experience pain in the neck after tripping in November 2015 (paragraph [34]).
(b)     He felt pain in the neck the next day (paragraph [37]).
(c)     When he returned to his employment after his two weeks’ leave the pain returned and became more intense, until it was continually present (paragraph [40]).
(d)     After the Christmas break when he returned to work he was suffering pain in the neck every day while he was working (paragraph [43]).
(e)     He complained to management (paragraph [44]).
(f)      When he ceased in July 2016 he had pain in the neck, back, legs and his balance was affected (paragraph [46]).
The concepts of aggravation, acceleration, exacerbation or deterioration involve the worsening of the disease by making it more grave, grievous or serious in its effect on the worker: Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626. It is sufficient that there be an increase in the symptom to satisfy the requirement of aggravation: Rural Press Limited v Hancock [2009] NSWWCCPD 160 at [67].
The evidence accepted by the Arbitrator from Mr Tate’s narrative is that the pre-existing canal stenosis became symptomatically worse after the return to work following the fall of 2 November 2015 as a result of Mr Tate’s continued employment activities (T15.16–30).
Furthermore, contrary to the appellant’s submissions, Dr Coughlan, in his reports of 9 November 2016 and 15 August 2016, implicates the period of employment with the appellant, after 2 November 2015. In those two reports Dr Coughlan says:
“He does, however have a background of doing a very physically demanding job for the last 13 years. He is with Central Coast Coolrooms so it involves lifting a lot of heavy gear above his head and working with heavy equipment for protracted periods. Most of his work is physical manual labour.”
This statement is significant given the juxtaposition with the previous sentence which appears in both reports:
“Prior to the fall he had never complained of any significant neck pain, neither had he complained of any paraesthesias or pins and needles or numbness.”
Likewise, Dr Higgs obtained a history, stating “It is evident though that his previously suffered discomfort was never as severe as was experienced after the fall in November 2015.” (ARD page 11.) Dr Higgs recorded that with the assistance of the video of the work activity that:
“Mr Tate has performed extremely arduous working activities that have been concerned with the construction of cool rooms in stores such as Woolworths. The video demonstrated Mr Tate to have been, with the assistance of a colleague, moving a very large timber structure. … My viewing of the video has caused me to form the conclusion that much of the physical activity was performed by Mr Tate without assistance.”
Dr Higgs concluded “There is no evidence that Mr Tate was suffering from any impairment of his neck or thoracolumbar spinal function” before the events of 2 November 2015.
As the respondent points out in its submissions, the General Practitioner, Dr Jaafar, specifically attributed the condition that he diagnosed as due to working and carrying insulation panels up to 6 metres in length, 20 to 30 kg, overhead (ARD page 18) and to “the history of working and type of employment and carrying heavy objects consistent with medical condition and disability.” (ARD 22). There is no limitation in the General Practitioner’s conclusion as to the relevant period of the provocative work activities. The Arbitrator expressly referred to the period after the fall on 2 November 2015. That conclusion is consistent with Dr Jaafar’s opinion.
Mr Tate suffers severe central canal stenosis localised at the C5/6 spinal level with a disc osteophyte complex and compressive myelomalacia (from Dr Higgs’ report of 14 October 2016, ARD page 15) described by Dr Breit as multilevel degenerative disease, the most significant area being C5/6 with disc osteophyte complex compressing the cord with evidence of myelomalacia.
Degenerative conditions of the lumbar and cervical spine are well established as disease conditions within s 4(b)(ii).
The Arbitrator’s conclusion that the continued employment of Mr Tate in heavy work after 2 November 2015 was available on the evidence which he accepted and should not be disturbed.
If, however, I be wrong in that conclusion, I accept the respondent’s submissions at [9], page 7, that the Arbitrator did not finally determine whether the falling event relied upon in the alternative was causative of the injury outcome.
In my view, it is plain that Mr Tate’s condition worsened as a result of the fall on 2 November 2015 and that that fall aggravated a pre-existing condition of canal stenosis in the neck.
As the appellant correctly observes in its written submissions at [18], if the Arbitrator had found the respondent worker suffered a neck injury in the fall and if he had found that the fall also aggravated degenerative changes in the neck, the injury would have fallen under s 4(a). But s 4(a) and s 4(b)(ii) are not mutually exclusive. An event may satisfy paragraph (a) and also satisfy (b)(ii): Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski) at [68].
In my view, the events of 2 November 2015 aggravated the pre-existing canal stenosis. Accordingly, if I be incorrect in my conclusion that the Arbitrator was correct in his view as to s 4(b)(ii), then I am nevertheless of the view that s 4(a) of the definition is satisfied.
Ground 1 of the Appeal fails.

Ground 2 – Absence of Evidence for s 60 Finding

The appellant’s submission is that there was no medical evidence to support a finding that surgery was required as a result of the aggravation, acceleration, exacerbation or deterioration caused by events after 2 November 2015. (appellant’s written submissions at [28]). The appellant does not dispute that the proposed surgery is reasonably necessary. (appellant’s written submissions at [30]).
In my view this ground of appeal fails for the reasons given in relation to Ground 1. After 2 November 2015 and the subsequent continued employment of Mr Tate by the appellant, neck symptoms previously minor and of no consequence became severe such that surgical intervention became reasonably necessary.
Dr Breit, relied upon by the appellant, accepts that surgery is necessary in the report dated 2 February 2017 and says:
“In my opinion, although the surgery in its own right is necessary, it does not relate to the work injury.”
Acceptance of the conclusion that Mr Tate suffered injury in the course of employment as defined in s 4 of the 1987 Act requires acceptance that the need for surgical therapy results from that injury. Dr Breit’s hypothesis to the contrary is based on his conclusion the worker did not sustain injury in the course of employment. The Arbitrator rejected that conclusion; it must follow that the medical and treatment expenses associated with the remedial surgery are reasonably necessary as a result of the injury.
Ground 2 of the appeal is not made out and is rejected.

Ground 3 – Error of Fact Regarding Lay Evidence

The Arbitrator accepted the applicant’s narrative as set forth in his statement. As I perceive it, it is not submitted that the Arbitrator’s conclusion in this regard was erroneous.
The submission in ground 3 advanced by the appellant is that “there was insufficient factual evidence to establish alleged injury in any event”.
The appellant’s submissions at paragraphs [34], [35] and [36] appear to me to attempt to re-agitate the submissions made by the appellant to, and rejected by, the Arbitrator.
I agree with the respondent’s written submission at paragraph [1] that the premise of this ground is that there is no medical evidence to support the Arbitrator’s decision. For the reasons set forth above at paragraphs [29]–[34] and [44], I do not accept that the Arbitrator’s determination was not supported by medical evidence.
The Arbitrator’s decision was based on his assessment of the lay evidence of Mr Tate, the other statement and documentary evidence and also an analysis of the medical evidence including that of Dr Breit. It was not a case of a conclusion supported only by lay evidence.
The decision of Bielecki v Rianthelle Pty Limited t/as Belfora [2008] NSWWCCPD 53 at [67] is an application of established principle. In that matter there was no medical support for the worker’s lay hypothesis as to the cause of the injury. But in this matter the nature of the injury is well established and the medical opinion supports the applicant. The only issue is whether the medical opinions of Drs Coughlan, Higgs and Jaafar should be preferred over Dr Breit.

The appellant has failed to demonstrate that an error of fact, law or discretion has occurred in the conclusion expressed by the Arbitrator.
Ground 3 of the appeal is rejected.

Ground 4 – Denial of Procedural Fairness

The respondent correctly submits that the alternative basis for a finding of injury set forth in the ARD was not abandoned.
Further, it seems to me that counsel for the appellant at least obliquely refers to the issue under s 4(b)(ii) at pages 23 and 30 of the transcript. At page 78 of the submissions to the Arbitrator, counsel for the respondent explicitly refers to aggravation of a disease and to the decision in Dimovski.
The appellant’s submissions based on Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb) are misplaced.
In Ghaleb two defendants exposed the plaintiff to asbestos. He contracted Asbestos Related Pleural Disease (ARPD). ARPD is a divisible condition. As the injury was divisible the exposures to asbestos whilst employed by each defendant caused separate and distinct injuries. One of the defendants settled with the plaintiff. At the hearing before the primary judge only the plaintiff and the defendant that had not settled the action were represented. The case was presented on the basis that the two defendants had and were responsible for successive tortious conduct resulting in different damage. The case was conducted on the basis that each of the defendants was partly responsible: see [63]–[68].
Notwithstanding the concession that both defendants were responsible for some damage suffered by the plaintiff, the primary judge concluded that the appellant alone had caused the ARPD from which the respondent suffered.
The majority (Mason P, Ipp JA, Basten JA dissenting) judgment was delivered by Ipp JA, who said at [78]:
“78. These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the Judge, if the Judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
79. A failure so to inform the parties will ordinarily result in a denial of procedural fairness. …”
Basten JA, in his dissenting judgment, quoted at [224], a passage from Gleeson CJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [37]. The Chief Justice there said:
“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations … A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In the present matter there was no concession that any part of the pleaded case was not to be advanced. Indeed, as indicated above, it appears that both counsel were cognisant of the allegation under s 4(b)(ii).
Furthermore, the appellant does not submit that it would have advanced any different material to the Arbitrator, rather it says:
“It could have led to a different result, had the appellant been given the opportunity to offer submissions such as those outlined at Grounds 1 and 2 above. The appellant submits it ought to have had the opportunity to submit to the Arbitrator there was no medical evidence to support a finding that the events after November 2015, caused a s 4(b)(ii) injury, or that such an injury caused the need for surgery.”
I do not accept that the appellant did not have such an opportunity. In fact it plainly had such an opportunity, but did not address on s 4(b)(ii) or, if it did, it did only in a passing reference. There is no submission that additional material would have been advanced as distinct from making a submission.
I dismiss this ground of appeal because I do not regard the appellant as having shown that it was deprived of an opportunity to make appropriate submissions on s 4(b)(ii) at the hearing before the Arbitrator. However, I make the additional observation that in any event the appellant has had an opportunity to make relevant submissions in support of grounds 1 and 2 at this time.
Ground 4 of the Appeal fails.

Ground 5 – Failure to Engage with the Evidence: Aggravation Injury

In my view, the Arbitrator adequately dealt with the evidence of Drs Coughlan and Higgs (T16–23). I do not accept the submission that the Arbitrator failed to engage with the evidence in these pages. For the reasons expressed above at pars [29]–[32] and [34], the conclusions reached by the Arbitrator concerning this evidence should not be disturbed.
There is an express rejection of Dr Culvenor’s opinion (T32.4). Importantly, Dr Culvenor said (at page 10 of his report dated 27 February 2017), page 146 of the Application to Admit Late Documents, the following:
“The fall was the result of a trip on the leg of a panel lifting tool known as a Genie lifter … It is not possible to exclude the possibility that it could cause a neck injury. However the dominant themes in the science on neck trauma risk include factors that were not present. The factors not notably present include energy such as from an elevated falling person, elevated object falling onto a person, axial loads such as inverted falls and other collisions including with people, impact, and compression flexion actions (often also with impact). Thus while this fall cannot be excluded as a cause it does not seem to have yielded an immediately noticeable effect on the neck nor does it contain key risk factors.”
Dr Culvenor therefore concedes of the possibility that the fall could cause neck injury. The Arbitrator regarded the mechanism of the fall when Mr Tate struck the floor involving a load on the neck as a matter of importance (T32.28). He did not regard Dr Culvenor’s treatment of this issue as adequate. He was entitled to take that view.
Furthermore, the report, (contrary to the appellant’s submission at [46]) does not displace the conclusion that the respondent’s employment subsequent to the fall on 2 November 2015 explained Mr Tate’s present symptomatic condition.
At page 15 of the report (page 151 of the AALD) Dr Culvenor said:
“There is here a coincidence of two facts. A man has a neck injury. He worked in a construction trade. The connection is not necessarily unreasonable but it may simply be coincidental… The work could be assessed by observation and analysis and that would be helpful…. Thus the work would be better analysed in detail but a pointer toward a particularly elevated risk of neck injury is not prominent.”
These remarks leave open the possibility that the neck injury, the work being performed by Mr Tate and the symptomatic complaints are at least “possibly” connected. Dr Culvenor concedes that a “pointer” toward a particularly elevated risk of neck injury is not prominent, but that nevertheless amounts to an acknowledgement that there is some risk of neck injury.
Dr Culvenor was unable to be more definitive because as he said there was no analysis of the work tasks. The conclusion that Mr Tate’s symptomatic neck was the result of the nature and conditions of his employment after the fall of 2 November 2015 is not falsified by the report of Dr Culvenor.
This part of Ground 5 fails.

Ground 5 – Failure to Engage with the Evidence: Rejection of Dr Breit

The Arbitrator rejected the evidence of Dr Breit on the following grounds:
(a)     The doctor was an orthopaedic surgeon and not a neurosurgeon. The Arbitrator was inclined to give more weight to Dr Coughlan’s opinion for this reason. He did not reject Dr Breit’s opinion on this ground alone (T23.20).
(b)     The history recorded by Dr Breit was that the neck symptoms presented two weeks after the fall. He concluded on the basis of that history the neck symptoms were not connected to the fall of 2 November 2015. The history was wrong (T24.3) and accordingly the report was based on a false premise.
(c)     Dr Breit agreed that trauma could aggravate cervical spondylosis. He did not believe the trauma of 2 November 2015 aggravated the spondylosis in this case because he obtained a history that no symptoms presented themselves for two weeks after the fall. The opinion was thus falsified because the history was relevantly incorrect.
(d)     Dr Breit did not assign any weight to the fact that Mr Tate was performing heavy work. The Arbitrator regarded the heavy work after 2 November 2015 in particular to be of significance.
(e)     The Arbitrator said that Dr Breit did not discuss the nature of the fall in his report. He concluded that there was no neck injury in the fall because there were no immediate neck symptoms (T27.15–20). The Arbitrator did not accept that conclusion.
The Arbitrator said that the opinion of Dr Breit was an “ipse dixit” and explained this in the context as meaning: “Just because Dr Breit has said that, does not make it so, unless there was some argument or some fact or circumstance on this basis” (T27.25).
The Arbitrator went on to expand what he meant by that conclusion, with particular emphasis on the statement by Mr Stowers, which he quoted at length. The criticism that the Arbitrator had of Dr Breit’s report is set out at T29.10–18 and 30.18, but the essence of the criticism is to be found at T30.2–4, namely, “I can’t be certain that Dr Breit has taken a correct history and [he has] not spent any time on the nature of the fall at all.”
The Arbitrator was entitled to reject the opinion of Dr Breit. The reasons he gave for doing so are sufficient and adequate. I reject the submission that the Arbitrator did not engage with Dr Breit’s opinion.
This part of Appeal Ground 5 fails. Accordingly, Ground 5 fails.

CONCLUSION

The decision of the Arbitrator does not show error of fact, law or discretion. The decision of the Arbitrator is confirmed.

Geoffrey Parker SC
Acting Deputy President

17 July 2017