Charles Sturt University v Manning - [2016] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Charles Sturt University v Manning [2016] NSWWCCPD 10
APPELLANT:	Charles Sturt University
RESPONDENT:	William Manning
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-1305/15
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	19 October 2015
DATE OF APPEAL DECISION:	8 February 2016
SUBJECT MATTER OF DECISION:	Failure to engage with conflicting medical evidence; failure to properly analyse issue in dispute; whether process of fact-finding miscarried
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Lee Legal Group
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 19 October 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.

INTRODUCTION

This appeal involves a challenge to an Arbitrator’s determination that the worker’s need for proposed knee replacement surgery is reasonably necessary as a result of an accepted work injury. The main complaints on appeal are that the Arbitrator misunderstood the employer’s medical evidence and failed to give adequate reasons for his decision. For the reasons explained below, the appeal is successful, the Arbitrator’s determination is revoked and the matter remitted to another Arbitrator for re-determination.

BACKGROUND

Regrettably, due to the way the parties have presented the case, it has not been possible to prepare an entirely accurate or complete chronology of relevant events in the worker’s history. Doing the best I can, the following events are relevant.
The respondent worker, William Manning, who is currently 59, started work for the appellant employer, Charles Sturt University, in 1986 as a groundsman. The work required him to perform heavy physical work as a gardener and labourer.
Mr Manning had significant non-work related problems with his knees when he was in his twenties. As the current claim relates only to his left knee, it is only necessary to refer to the history relevant to that knee. In the 1980s, Mr Manning had, in separate operations, open medial and lateral meniscectomies performed on his left knee.
Mr Manning gave evidence that, over the 26 years when he worked for the appellant, he hurt his left knee numerous times while performing his regular duties for the appellant. He did not report these injuries, or take time off, as he considered them too minor.
He suffered a non-work related injury to his left knee on 29 December 2011. On that day, Mr Manning jarred his left knee when he jumped off his boat onto the garage floor at his home. The next day, his knee was swollen and he could not walk. He saw Dr Bartusek at Wagga Wagga Base Hospital on 30 December 2011, who referred him to Dr Van der Rijt, orthopaedic surgeon. X-rays on 30 December 2011 revealed degenerative changes both medially and laterally and a moderate effusion.
Mr Manning had four days off work and returned to his normal duties, though he was still limping on his return to work. He said that he was “extra careful” in doing his work because he did not want to hurt his knee any more.
Mr Manning saw his general practitioner, Dr Fleming, after the 29 December 2011 incident, though exactly when is unclear. Dr Fleming referred him for an MRI, which was performed on 12 January 2012. The radiologist’s report on the MRI scan concluded:
“● Multiple tears are seen in [the] medial and lateral menisci.
·   Advanced osteoarthritis predominantly in [the] lateral femoral tibial compartment with moderate effusion and secondary synovial osteochondromatosis.
·   Complete tear of [the] anterior cruciate ligament.
·   A multicystic lesion in [the] posterior aspect of [the] tibia which may represent subchondral cysts or a giant cell tumor [sic]. Radiographic correlation is suggested.”
While performing his normal duties at work on Friday, 20 January 2012, Mr Manning stepped backwards into a circular drain with his left foot and fell to the ground. He felt pain in his left knee. He limped to his supervisor’s office and reported the incident. He said he completed the necessary forms and saw Dr Fleming.
Exactly when Mr Manning saw Dr Fleming is unclear. The first WorkCover certificate from Dr Fleming is dated Monday, 23 January 2012. It certified Mr Manning to be unfit for work from that date until 3 February 2012. It is not known if Mr Manning worked on the Saturday or Sunday.
The appellant’s insurer accepted liability for the injury on 20 January 2012 and paid compensation. At some stage, those payments ceased and Mr Manning commenced proceedings in the Commission in matter No 6901 of 2012 (the 2012 proceedings) claiming weekly compensation from 24 February 2012 to date and continuing as a result of an aggravation of degenerative disc disease and aggravation of osteoarthritis in both knees.
Dr Van der Rijt reported to Dr Fleming on 16 February 2012. He took a history of the incident at home on 29 December 2011, when Mr Manning stepped out of his boat and landed awkwardly on the concrete, and of the work incident on 20 January 2012, when Mr Manning stepped into an open drain “twisting the left knee”. Dr Van der Rijt was aware that Mr Manning had submitted a workers’ compensation claim for the January 2012 incident.
Dr Van der Rijt said that the x-rays showed evidence of bone erosion, which was consistent with full thickness articular loss. The MRI scan performed on 12 January 2012 showed multiple changes, which were “essentially those of an arthropathy with loss of lateral more than medial articular surfaces, secondary bony change and a large cyst”. He said that the underlying pathology was “advanced arthropathy”, which warranted knee arthroplasty (replacement) for “definitive management”.
The 2012 proceedings were settled by consent on 4 June 2013, with the appellant agreeing to pay $8,250 compensation in respect of a permanent impairment of 6 per cent as a result of the condition of Mr Manning’s left knee with a “deemed date of injury of 20 January 2012”.
Meanwhile, on 22 January 2013, Dr Van der Rijt saw Mr Manning again. He took a history of increasing symptoms in Mr Manning’s left knee, with increasing pain, stiffness and, more recently, crepitus. The knee was uncomfortable with day-to-day activity and Mr Manning had a degree of “rest and night pain”.
Dr Van der Rijt again referred to the findings in the 12 January 2012 MRI scan. He said that Mr Manning had “significant disease and restriction and ha[d] sufficient disability to warrant knee arthroplasty for definitive management”. In addition, the cyst would be explored and evacuated as part of the arthroplasty and he would undertake an autograft of local bone for it.
On a date not disclosed in the evidence, Mr Manning claimed the cost of the surgery recommended by Dr Van der Rijt. In a s 74 notice dated 15 April 2013, the insurer disputed liability for that surgery. Relying on a report from Dr Clark, orthopaedic surgeon, the insurer conceded that the surgery was reasonably necessary, but asserted that it was not related to Mr Manning’s workplace injury of 20 January 2012.
Mr Manning asked the insurer to review its decision disputing liability for the proposed surgery. He relied on evidence from Dr Patrick, orthopaedic surgeon, who placed considerable weight on the heavy work Mr Manning performed with the appellant over many years, and who asserted that the injury on 20 January 2012 had a lasting effect that resulted in Mr Manning being unable to return to his usual duties.
In a further s 74 notice, dated 14 January 2015, the insurer again disputed liability for the proposed surgery. On this occasion, in addition to relying on evidence from Dr Clark, it relied on evidence from Dr Pillemer and Dr Huntsdale, both orthopaedic surgeons.
In an Application to Resolve a Dispute (the Application) lodged with the Commission on 10 March 2015, Mr Manning sought an order that the insurer pay the “cost of left knee replacement surgery and associated costs”. The Application relied on a “deemed” date of injury of 20 January 2012 and described the injury as “[a]ggravation of osteoarthritis changes in left knee”. The injury is described as having occurred as follows:
“On 20 January 2012 [Mr Manning] twisted his left knee when he stepped into an open drain while cleaning a bobcat. [Mr Manning] also relies on the nature and conditions of his work as a gardener at Charles Sturt University since 1986 involving heavy work placing considerable strain on the left knee. [Mr Manning] was required to squat, lift heavy items, walk bend and kneel. These activities have caused, and / or aggravated, accelerated and / or exacerbated an underlying degenerative condition to his left knee which now requires surgery in the form of a left knee replacement.”
As the claim involved the cost of proposed surgery, the Commission referred the matter to an Approved Medical Specialist (AMS) for a non-binding opinion on whether the surgery was reasonably necessary as a result of the injury. The AMS, Dr Machart, issued a Medical Assessment Certificate (MAC) on 3 July 2015, in which he concluded that the knee replacement surgery was reasonably necessary, but not as a result of the injury on 20 January 2012 “deemed due to nature and conditions of employment and/or causing aggravation, acceleration, or exacerbation of the left knee condition requiring surgery”.
Dr Machart stated that Mr Manning has osteoarthritis in his left knee involving all three compartments, which was caused by the injuries and subsequent meniscectomies performed “20 years ago”. He added that the injuries in December 2011 and January 2012 “did not cause additional or substantial damage to the knee that altered the natural history of the knee osteoarthritis which was always going to progress to the point where TKR [total knee replacement] was necessary”. He said that the nature and conditions of Mr Manning’s employment “did not cause [the] osteoarthritis”.
A Commission Arbitrator heard oral submissions on 16 September 2015. Neither side sought leave to call any oral evidence or to cross-examine any witness. In a reserved decision delivered on 19 October 2015, the Arbitrator found in favour of Mr Manning. The Arbitrator was satisfied that the evidence from Mr Manning and Dr Patrick supported a finding that the nature and conditions of Mr Manning’s employment over 26 years, particularly the injury on 20 January 2012, had “causally contributed to [Mr Manning’s] left knee pathology and symptoms, and ha[d] materially contributed to [Mr Manning’s] need for the medical treatment claimed” ([46]).

Consistent with this finding, the Commission issued a Certificate of Determination on 19 October 2015 in the following terms:
“1.Award for the applicant pursuant to section 60 of the Workers Compensation Act 1987 in respect of claim for total left knee replacement.”
The appellant has challenged the Arbitrator’s findings and determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     misunderstanding the nature of the appellant’s expert evidence;
(b)     finding a causal link and failing to properly address causation, by providing inadequate reasons as to why the appellant’s evidence was not preferred, and
(c)     failing to consider and/or provide reasons as to the weight of the MAC.

SUBMISSIONS

Appellant’s submissions

The appellant’s counsel, Mr Andrew Parker, submitted that the appellant relied on evidence from Dr Home, consultant in occupational medicine, Dr Smith, injury management consultant, and Drs Pillemer, Huntsdale and Clark, orthopaedic surgeons. However, the Arbitrator did not comment on the evidence from Dr Huntsdale or Dr Clark.
To the extent that the Arbitrator commented on the evidence from Drs Home, Pillemer and Smith, he focused on the history provided, rather than the doctors’ conclusions. Mr Parker contended that, on a fair reading of their reports, none of the doctors (qualified for the appellant) supported a causative link between the employment injury and Mr Manning’s ongoing condition (and, therefore, the need for surgery).
It was clear that, given the way the Arbitrator quoted from the doctors’ reports, he has erroneously taken their comments out of context. This infected the Arbitrator’s ability to weigh the competing evidence on causation. Had he properly understood the appellant’s expert evidence (and accepted it), no finding on causation could have been found.
Mr Parker submitted that the Arbitrator attempted to decide the case on matters that were irrelevant, namely, on the basis that Mr Manning was able to do full duties following the December 2011 incident, but was not able to do them after the incident on 20 January 2012. That was so because Mr Manning admitted that he was limping when he returned to work after the December 2011 incident.
Given the complexities of the case, Mr Parker contended that the matter required the evaluation of the expert evidence. The Arbitrator accepted Dr Patrick’s opinion over that of the appellant’s experts. While the Arbitrator referred extensively to Dr Patrick’s evidence, he did not refer at all to the conclusions of the appellant’s experts. Mr Parker submitted that the Arbitrator was required to provide some basis for not accepting the appellant’s experts and that he did not do so.
Last, Mr Parker said that the parties made extensive submissions on the weight to be given to Dr Machart’s evidence in the MAC. While the Arbitrator noted Dr Machart’s findings at [7], which did not support Mr Manning, he failed to deliberate in any meaningful way on the findings.

Mr Manning’s submissions

Counsel for Mr Manning, Mr Barter, submitted that the Arbitrator did not need to examine the opinion of each witness to form his own conclusion as to causation. An expert’s opinion may assist an Arbitrator to a conclusion, but expert witnesses can give no more than evidence and cannot usurp the functions of the judge or jury (Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39–40, quoted in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at 729).
Mr Barter argued that the Arbitrator placed the reports in the correct context of the issue to be decided, namely the contribution of the employment injury to the need for surgery. He submitted that it is not necessary for an Arbitrator to identify and address each and every piece of evidence.
Mr Barter contended that the second ground of appeal invites a merits review that is not warranted as the Arbitrator set out his reasons, which are adequate to understand the means by which he came to his conclusions. The issue was not one of medical complexity. The issue was one of causation and the medical opinions formed only a part of the body of evidence that the Arbitrator considered in coming to his conclusion.
Mr Barter submitted that the Arbitrator only had to refer to the material before him to ensure the parties are aware that the evidence has not been overlooked. The Arbitrator met that obligation.
Mr Barter submitted that the Arbitrator “clearly considered all the medical evidence before him, including that of the AMS”, and considered the parties’ submissions about Dr Machart’s evidence. He also considered Mr Manning’s evidence, the appellant’s admission (in the settlement of the 2012 proceedings) that six per cent whole person impairment resulted from the pleaded injury, and the history that Mr Manning was able to return to full-time duties following the December 2011 injury, but not following the employment injury of 20 January 2012.
The Arbitrator clearly felt, so Mr Barter contended, that he was better assisted by the opinion of Dr Patrick, when placed in the context of the appropriate legal test and the balance of the evidence. Mr Barter argued that an explanation as to why the evidence of one doctor has been of particular assistance is sufficient for the parties to understand the reasoning process, without the need to provide explanations as to why other experts were not preferred in the context of a claim that does not involve a complex medical issue.
Last, Mr Barter submitted that the Arbitrator properly applied the agreed facts to the appropriate law using the correct test. His decision should stand. Even if the Arbitrator had provided a more detailed explanation as to why he preferred the evidence of one medical practitioner over another, it would not have affected the outcome.

THE ARBITRATOR’S REASONS

To give context to Mr Parker’s submissions, it is necessary to consider first the Arbitrator’s reasons in detail.
After summarising the pleadings and the parties’ submissions, the Arbitrator correctly noted that there was no dispute that the proposed surgery is reasonably necessary (having noted Dr Machart’s evidence to that effect at [7]) and that the issue relates to whether “the need for the knee surgery result[s] from the accepted work injury” ([20]). He then noted how the case was pleaded and set out the paragraph reproduced at [20] above. He referred to Mr Manning’s evidence of his duties, which involved considerable bending, lifting, squatting and working low to the ground.
The Arbitrator quoted (at [24]) Mr Manning’s evidence about the December 2011 incident and his evidence that he believed that the problems with his left knee “were also aggravated accelerated and exacerbated by [his] day to day work at the University”, which work was, on Mr Manning’s unchallenged evidence, “extremely difficult and placed significant strain on [his] left knees [sic] and other parts of [his] body”.
The Arbitrator was satisfied that Mr Manning had some time off after the December 2011 injury, but that he returned to normal full-time duties soon after the beginning of January 2012. On his return, he “was carrying some symptoms” (limping), but the Arbitrator was satisfied that he was able to perform his usual duties full-time. After his injury on 20 January 2012, Mr Manning did not return to his normal work with the appellant.
After referring to various authorities on causation in claims for hospital and medical expenses under s 60, and acknowledging that Mr Manning carried the onus of proof, the Arbitrator accepted that Mr Manning had “considerable pathology” in his left knee prior to 20 January 2012 and that he suffered a significant injury on 29 December 2011.
The Arbitrator referred to Dr Patrick’s evidence at length. That evidence, as summarised by the Arbitrator, included:
(a)     a history of the physical nature of Mr Manning’s duties with the appellant;
(b)     a history of the December 2011 injury, that Mr Manning was able to continue with his work and suffered a further significant injury to his left knee on 20 January 2012 which caused a marked increase in left knee pain;
(c)     an assessment that Mr Manning had, as a result of his employment with the appellant, a six per cent whole person impairment due to the condition of his left knee (overall Dr Patrick had assessed a 12 per cent whole person impairment but reduced that figure by 50 per cent to allow for Mr Manning’s previous problems with his left knee);
(d)     Dr Patrick’s statement that Dr Pillemer seemed to ignore the very physical nature of Mr Manning’s work with the appellant over some 25 years or more, which included jumping out the back of the work ute onto the ground and significant turning and twisting, often with the knees and/or back under load;
(e)     Dr Patrick’s statement that he disagreed strongly with Dr Pillemer’s assertion that Mr Manning would have reached the present state of deterioration in his knees irrespective of the work he did with the appellant. Though such a situation was possible, Dr Patrick thought it unlikely;
(f)      Dr Patrick disagreed with the opinion of Dr Clark to the effect that Mr Manning’s employment duties had no role to play in the “state” of his left knee, and
(g)     Dr Patrick indicated that in consideration of all of the presenting circumstances, the injury event of 20 January 2012 did not represent a “temporary aggravation” or temporary exacerbation, but was of more lasting effect noting that it resulted in Mr Manning not being able to return to his usual duties thereafter.

Dealing with the appellant’s medical case, the Arbitrator noted (at [34]) the history recorded by Dr Home of Mr Manning’s work with the appellant and of the incidents in December 2011 and January 2012. The Arbitrator also referred (at [35]–[36] and [42]) to Dr Pillemer’s history, which included a note that, after the 20 January 2012 incident, Mr Manning did not return to work and that his left knee kept “popping out” and had been a problem. The Arbitrator also noted (at [40]) the history recorded by Dr Smith.
The Arbitrator concluded, at [45]–[47]:
“45.I accept [Mr Manning], after the 29 December 2011 incident at home, was able to return to perform his normal duties in early January 2012 but after the injury of 20 January 2012 he was not. I am satisfied [Mr Manning] was on 20 January 2012 in the course of performing his normal duties with the [appellant] when he stepped back into a drain and suffered further injury to his left knee, and it was a result of this work injury he suffered significant increased pathology and pain in the knee and as a result he was subsequently unable to continue at work on normal duties.
46.I am satisfied [Mr Manning] suffered a significant injury to his left knee when at home on 29 December 2011. I am satisfied, that [Mr Manning’s] statement and other evidence including the opinion of Dr Patrick, and the Certificate of Determination in the prior proceedings, supports a finding that the physical nature and conditions of [Mr Manning’s] employment over a period of some 26 years, particularly the injury event of 20 January 2012, has causally contributed to his left knee pathology and symptoms, and has materially contributed to [Mr Manning’s] need for the medical treatment claimed.
47.In summary I accept that the criteria for evaluating causation must include the possibility of multiple causes. I accept that the applicant had preexisting pathology and suffered a significant non work injury to his left knee on 29 December 2011. I accept [Mr Manning] has worked for over 26 years with the [appellant] doing physical gardening and labouring work and has stated that during that time he suffered numerous minor injuries to his left knee that he has not reported. I accept he suffered a significant injury to his left knee on 20 January 2012 and went off work and has not returned to work thereafter. I note the ‘date of Injury’ at Part 4 of the Application has been pleaded the date of injury as ‘20 January 2012 (deemed DOI)’ and the injury description details describe the injury as one involving a personal injury pursuant to s4(a) and also as coming within the extended definition of injury provided by s4(b) of the 1987 Act. I note that in the prior proceedings an Award was made in favour of [Mr Manning] under s66 of the 1987 Act for a 6% WPI in respect of the accepted injury. There was no dispute [Mr Manning] suffered a significant injury to his left knee on 20 January 2012 and I am satisfied [Mr Manning’s] statement evidence and medical history evidence supports the finding that the work related pathology and symptoms was ongoing and has materially contributed towards [Mr Manning’s] need for the recommended surgery. To the extent there is a difference of opinion concerning contribution of [Mr Manning’s] employment injury towards the need for surgery I prefer the expert opinion of Dr Patrick over that relied upon by the [appellant]. I am satisfied Dr Patrick has taken a proper history and he has engaged with all relevant factors, I am satisfied his opinion has been given in a fair climate and has been based upon a proper foundation of fact.”
He then made orders “accordingly” ([48]).

DISCUSSION AND FINDINGS

Mr Parker’s complaints are largely correct, though, more accurately, they really amount to a complaint that the Arbitrator’s process of fact-finding miscarried.
The extent of an Arbitrator’s duty to engage with the evidence depends on the circumstances of each case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). However, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other” (Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed), quoted with approval by McColl JA in Hume v Walton [2005] NSWCA 148 at [69]).
The Arbitrator was required to engage with the conflicting medical evidence (Sant v Tsoutsas [2009] NSWCA 3; Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] and Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127). As Bingham LJ explained in Eckersley v Binnie (1988) 18 Con LR 1 at 77–78, “a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons” (quoted with approval by Beazley JA (as her Honour then was) in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133]). For the reasons explained below, the Arbitrator erred in failing to properly engage with the conflicting medical evidence in the present case.
The issue for the Arbitrator to determine was whether the need for the surgery proposed by Dr Van der Rijt, a left knee replacement and autograft of local bone, was reasonably necessary as a result of the pleaded injury.
The appellant’s case was and is that the surgery is reasonably necessary because of the presence of osteoarthritis, which was caused by the injuries and subsequent surgery performed many years ago, and that neither the injury on 20 January 2012, nor the heavy work Mr Manning performed over many years with the appellant, had caused or aggravated that condition. Therefore, the need for the surgery could not be due to the employment with the appellant. Dr Patrick expressed a contrary view.
The Arbitrator said that he accepted Dr Patrick’s view. He did so because he was satisfied that Mr Manning’s evidence and “the medical history evidence” supported “the finding that the work related pathology and symptoms was ongoing and has materially contributed towards [Mr Manning’s] need for the recommended surgery” ([47]).
To the extent that there was a difference of opinion between Dr Patrick and the experts qualified by the appellant, the Arbitrator said that he preferred Dr Patrick’s opinion because he took “a proper history” and “engaged with all relevant factors” so that his opinion was “given in a fair climate and has been based upon a proper foundation of fact” ([47]). It may be accepted that Dr Patrick took a proper history and that his opinion was given in a fair climate. However, those matters did not determine the case.
The difficulty with the Arbitrator’s approach is that he failed to consider the contrary opinions expressed by the appellant’s experts. Rather than engaging with the competing views, and properly analysing them, to determine which was to be preferred and why, the Arbitrator merely referred to the histories recorded by Drs Home, Pillemer and Smith, but, as Mr Parker submitted on appeal, said nothing about their opinions. He did not even say, for example, that their opinions were based on an inaccurate history, and therefore had to be discounted. He did not consider their opinions at all.
Further, the parties both addressed the Arbitrator on Dr Machart’s evidence. Mr Parker argued that it supported his client and Mr Barter contended that it ought to be discounted because Dr Machart appeared to have not considered the probability that Mr Manning’s employment over time may have contributed towards the pathology affecting Mr Manning’s left knee. While the Arbitrator referred to these submissions (at [15] and [19]), he did not say which one he accepted. The clear inference is that, by accepting Dr Patrick’s evidence, the Arbitrator rejected Dr Machart’s evidence. The difficulty is that he did not say why. It was not sufficient to merely say that Dr Patrick had taken a proper history.
I accept that it is not necessary for an Arbitrator to consider the opinion of each witness before he can form an opinion on causation. That is especially so when each witness expresses a similar opinion. However, the issue in the present case did not depend solely, or even mainly, on the histories recorded by the various experts. It depended on which of the conflicting opinions on causation the Arbitrator accepted. That question was not answered by saying that Dr Patrick took a proper history. It was not suggested that the histories recorded by the appellant’s experts were so defective that their opinions could not be accepted. Their opinions were not considered.
Whether the issue was medically complex is not to the point. The Arbitrator did not address the issue identified in the evidence. Mr Barter’s submission that the Arbitrator “clearly considered all the medical evidence before him” cannot be accepted. The Arbitrator did not consider or refer to the evidence from Dr Huntsdale or Dr Clark. He did not consider the opinions or conclusions of any of the appellant’s experts.
The matters relied on by Mr Barter, namely, whether Mr Manning was able to return to work after the January 2012 injury and the payment of compensation for the six per cent whole person impairment, were not determinative of the medical dispute before the Arbitrator. The Arbitrator may well have felt that he was better assisted by Dr Patrick’s evidence than by the appellant’s experts, but he did not explain why that was so or why Dr Patrick’s evidence should have been preferred over the appellant’s experts.
In light of the parties submissions on appeal, which have not addressed the merits of the claim, the matter must be re-determined by a different Arbitrator.

OTHER MATTERS

The appellant has tendered five forensic medical reports. They are from Dr Pillemer, Dr Clark, Dr Huntsdale, Dr Home and Dr Smith. Three of those doctors are orthopaedic surgeons. On the face of it, without expressing a concluded view, the appellant appears to be in breach of cl 49 of the Workers Compensation Regulation 2010, which provides that, in any proceedings on a claim, only one forensic medical report may be admitted on behalf of a party. This will need to be addressed at the next arbitration. (Dr Machart’s MAC is exempt from cl 49: Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 at [109]–[112]).
One other matter arises. The pleadings appear to rely on a personal injury received on 20 January 2012, but also purport to rely on the disease provisions in s 4(b)(i) and (ii). If there is evidence that Mr Manning contracted the disease of osteoarthritis in the course of his employment with the appellant, which would bring s 4(b)(i) into play, the parties have not referred to it on appeal.
If the allegation is that, in addition to the personal injury received on 20 January 2012, Mr Manning also suffered a separate aggravation injury due to the heavy work he performed with the appellant over many years, the parties have not referred to any evidence that would support such a finding. I express no concluded view on this issue, but merely note that it will need to be addressed at the re-determination.
Without deciding it, it is difficult to see how Mr Manning’s evidence at [26] of his statement of 2 February 2012 that he hurt his knee numerous times over 26 years, but did not take time off because he considered them to be too minor to take time off or report, supports an aggravation injury under s 4(b)(ii). Similarly, it is difficult to see how, without more, a general complaint that his work was heavy supports such a finding.
If it is alleged that, on 20 January 2012, Mr Manning suffered an aggravation injury under s 4(b)(ii), the parties are directed to Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski), where Hodgson JA, held (at [68]) that:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease.”
Applying Dimovski, if Mr Manning’s injury on 20 January 2012 also aggravated an underlying disease, it is still a personal injury under s 4(a). Though I express no concluded view about it, exactly how and when Mr Manning suffered a separate aggravation injury, if that is what is alleged, is, on the evidence and submissions, unclear.

CONCLUSION

For the above reasons, I have concluded that the Arbitrator failed in his duty to explain adequately the basis for his conclusions on why the proposed surgery is reasonably necessary as a result of the pleaded injury. In these circumstances, the process of fact finding has miscarried (McColl JA (Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (at [130]–[131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [28]) agreed)).

DECISION

The Arbitrator’s determination of 19 October 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.

Bill Roche
Deputy President

8 February 2016

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE