Chatz-Tzomma v Sarkis - [2022] NSWPICPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Chatz-Tzomma v Sarkis [2022] NSWPICPD 51
APPELLANT:	Giechia Viktor Symeon Chatz-Tzomma
RESPONDENT:	Maurice Sarkis
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W5833/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	20 December 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 15 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – requirement to show error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
Schofield King Lawyers
Respondent:
Mr S Grant, counsel
Hall & Wilcox Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	15 March 2022

INTRODUCTION AND BACKGROUND

On 29 March 2017, Mr Giechia Viktor Symeon Chatz-Tzomma (the appellant) suffered numerous injuries in the course of his employment with Mr Maurice Sarkis (the respondent) when he was working on a ladder and a co-worker kicked him in the head, causing him to fall to the ground. The appellant was taken to hospital and was diagnosed with fractures of both wrists, a fracture of the right elbow and right sided fractures of the pelvis. He was discharged from hospital on 26 June 2017.
The respondent accepted liability for weekly compensation. The appellant subsequently lodged a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in respect of 62% whole person impairment, based on the assessment of various body parts, which included the lumbar spine, cervical spine, left knee and both eyes (visual system). The respondent disputed liability for these body parts, asserting they were not injured in the pleaded incident.
The dispute proceeded to arbitration before a Member of the Commission. The Member determined that he was satisfied that the appellant suffered injuries to his lumbar spine, left knee and eyes in the course of his employment with the respondent on 29 March 2017. He was not satisfied that the appellant suffered an injury to the cervical spine.
The appellant appealed the decision, alleging error on the part of the Member in respect of his finding that the cervical spine was not injured in the accident.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicate that they are content for the appeal to be determined on the basis of the submissions and documentation already before the Commission.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of that material. 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The appellant’s statement evidence

The appellant provided a statement to police on 8 April 2017 in respect of the events leading up to his fall and the injuries he sustained.[1] Relevantly, he stated that he lost consciousness in the fall and when he awoke, he was in significant pain and could not move his head or his toes, arms, hips and legs.
[1] Reply to Application to Resolve a Dispute, (reply), pp 68–71.
The appellant made a further statement to police[2] dated 5 July 2017. Nothing relevant to this appeal turns on the contents of that statement.
[2] Reply, pp 72–73.
The appellant provided a statement dated 9 April 2018.[3] He described the mechanism of injury, which he said involved a fall of 10 metres, the surgical and other treatment he received, and his ongoing disabilities. He listed the various body parts alleged to have been injured in the incident, including those contested in these proceedings. He complained of widespread symptoms. Among those symptoms, he complained of headaches, pain and discomfort in the neck and weakness in the left arm.
[3] Application to Resolve a Dispute (ARD), pp 1–4.
The appellant lodged a supplementary statement dated 9 July 2021.[4] He gave further details in relation to the altercation that occurred between him and the co-worker and the mechanism of the fall. He stated:
“I looked back up and saw Ellie’s left foot coming towards my face, Ellie kicked me on
the left side of my face, his foot hit my mouth and left eye. His shoes were full of cement sludge which got into my eyes and caused severe burning sensation in my eyes.
I fell backwards and landed on the concrete floor.”[5]
[4] ARD, pp 1122–1127.
[5] Appellant’s statement dated 9 July 2021, [12]–[13].
He listed the radiological investigations that were undertaken when he was admitted to hospital, relevantly including CT scans of the head and brain. He added that when he was discharged from hospital, he was treated by Dr Aiman Alsayed, general practitioner, who arranged for him to undergo an MRI scan of his neck and back on 19 September 2017.
He recalled that, while in hospital, he had discussed issues with his doctor in relation to his eyes, teeth, and shoulders. He said that, although he complained of pain in those areas, the hospital provided no treatment for those symptoms.

The medical evidence

Royal Prince Alfred Hospital

The extensive clinical records of Royal Prince Alfred Hospital were in evidence.[6] The Discharge Summary recorded that the appellant had possibly lost consciousness following a fall from a five metre ladder. The appellant was noted to have the following conditions on admission:
“- Extension right hemipelvic fractures
- Right Superior and inferior pubic rami fractures
- Right iliopsoas haematoma
- Right and left distal radius fracture
- Right and left carpal fractures
- Right capitellum fracture
- Right coronoid fracture”.[7]
[6] ARD, pp 31–834.
[7] ARD, p 39.
On 29 March 2017, the hospital notes recorded paraesthesia and tingling in the right hand,[8] and on 1 April 2017, bilateral tingling in the arms was noted.[9] On 2 April 2017 the notes again recorded tingling in the right hand.[10] The hospital records also disclose that the appellant underwent a CT of the cervical spine while in the hospital on 29 March 2017,[11] and underwent extensive physiotherapy.[12]
[8] Reply, p 337.
[9] Reply, p 346.
[10] Reply, p 348.
[11] Reply, p 164.
[12] ARD, pp 248–603.

Dr James Dent, medical officer

Dr James Dent, a medical officer employed by Royal Prince Alfred Hospital, provided an expert certificate dated 24 May 2017 at the request of the NSW Police Service.[13] He certified that he had physically examined the appellant at the hospital on the date of admission. He noted the various findings, which included “Neck: In collar, no obvious injury.”
[13] Reply, pp 122–123.

Dr Aiman Alsayed, general practitioner

Following his discharge from hospital, the appellant commenced seeing Dr Alsayed on 29 June 2017.[14] The first entry recording cervical symptoms was on 14 August 2017.[15] The entry referred to “neck pain with radiculopathy”. Dr Alsayed recorded complaints of neck pain radiating to upper limbs on 28 August 2017 and referred the appellant for an MRI scan of his cervical and lumbar spines.[16] The appellant underwent the MRI scan on 19 September 2017. The conclusion from the findings reported was recorded as:
“MRI of cervical spine demonstrates mild central canal stenosis at C4/5 and C5/6 and severe left-sided C3/4 stenosis compressing the left C4 nerve root. Moderate foraminal stenosis seen bilaterally at C4/5, left sided C5/6 and C6/7 levels compressing the C5 nerve roots bilaterally and left-sided C6 and C7 nerve roots.”[17]
[14] ARD, p 1129.
[15] ARD, p 1134.
[16] ARD, p 1135.
[17] ARD, pp 1294–1295.

Dr Dale Kong, occupational physician

The appellant was reviewed by Dr Kong on 20 November 2017 for the purpose of assessment by Insurance and Care (icare)’s medical support review panel.[18] Dr Kong recorded:
“It is noted at assessment by the rehabilitation provider on 27/10/2017, Mr Tzomma had complaints related to his cervical spine, shoulders, elbows, both hands and fingers, right hip/ pelvis, and both knees
…
Impression:
Mr Tzomma has suffered multiple significant and complex orthopaedic injuries after a fall from height in March 2017. The nature of his defined injuries would be consistent with significant impact forces being transmitted through his legs and arms to his body. He had a prolonged admission in hospital until June 2017. He is not under the care of a rehabilitation service. He has multiple complaints of musculoskeletal symptoms in body areas not directly related to the defined injuries, however, given the mechanism of injury and prolonged hospitalisation (with significant time immobile), it is not unexpected he has progressively complained of more body areas as he begins to mobilise.”[19]
[18] ARD, pp 975–978.
[19] ARD, p 975.
Dr Kong also considered that it was not uncommon that the recorded notes placed greater focus on the main issue leading to presentation.

Dr John Watson, orthopaedic surgeon

Dr John Watson provided several reports at the request of the respondent. He examined the appellant on 13 December 2017 and provided a report on that date.[20] Dr Watson took a history of the appellant’s injuries sustained in the fall, noting that the appellant also “apparently” injured his cervical spine. Dr Watson performed a physical examination, noting marked limitation of movement of the cervical spine. He reviewed the MRI scans, which he considered showed significant degenerative changes in the cervical spine. Dr Watson was of the view that the appellant’s employment was a substantial contributing factor to his injuries but concluded that he required further radiological investigations before he could provide an opinion as to an assessment of what treatment should be offered to the appellant.
[20] Reply, pp 291–296.
Dr Watson provided a supplementary report dated 6 February 2018[21] in which he reviewed x‑ray results in respect of the wrists, right elbow, right shoulder, the pelvis and both knees. He recommended the appellant enter into a rehabilitation program.
[21] Reply, pp 297–301.
Dr Watson was subsequently asked to provide an opinion as to whether, in his view, the appellant suffered an injury to his cervical spine in the pleaded incident. He provided a report dated 18 April 2018.[22] He noted that the appellant complained of some pain in the cervical spine. Dr Watson referred to the radiological investigations, which he said were directly related to pre-existing pathology. He considered that the appellant may have suffered a temporary aggravation of his pre-existing pathology which was temporary and would have resolved.
[22] Reply, pp 302–306.

Dr James Bodel, orthopaedic surgeon

Dr James Bodel examined the appellant at the request of the appellant’s legal representatives and provided a report dated 22 June 2018.[23] He noted the various body parts injured in the incident, including that the appellant suffered a closed head injury. Dr Bodel recorded the appellant’s continuing symptoms, which included head pain and severe and chronic neck pain. He performed a physical examination, observing asymmetry of neck movement. Dr Bodel reviewed the radiological investigations, relevantly noting that the MRI scan dated 19 September 2017 arranged by Dr Alsayed indicated degenerative disc disease in the cervical region. He expressed the view that the appellant suffered injuries to all of the areas of concern in the incident described, including a soft tissue injury to the neck. He provided assessments of the appellant’s whole person impairment, including the cervical spine, which he assessed as 5%, without any deduction for pre-existing impairment.
[23] ARD, pp 1022–1031.

Dr Paul Robinson, orthopaedic surgeon

Dr Paul Robinson was qualified by the respondent to examine the appellant and provide an opinion. He provided a report dated 16 October 2019 in which he recorded the physical findings listed on admission to hospital and the findings from the radiological investigations.[24] Dr Robinson noted that the appellant had suffered multiple injuries in the fall, and that the appellant’s condition had deteriorated over time. He considered that there were potentially other, non-work related causes contributing to the injury, which required investigation by relevant specialists. He advised that, as a consequence, he was not in a position to assess the appellant’s permanent impairment. Dr Robinson said that the appellant suffered injuries in the form of multiple fractures to both wrists, fractures of the pelvis and left elbow, and bruising in multiple areas, including both knees.
[24] Application to Admit Late Documents (AALD) dated 4 March 2022, pp 1–7.
Dr Robinson was specifically asked to consider whether the appellant suffered injuries to the cervical spine, lumbar spine and both knees. Dr Robinson considered that the fall would have caused multiple stresses to those parts of the body. In respect of the cervical spine, Dr Robinson expressed the view that the stenosis at C4/5 suggested on the MRI scan of the cervical spine would have been aggravated by the pleaded incident, but the symptoms as presented on the day of consultation were not related to the incident and should be investigated neurologically.
Dr Robinson re-examined the appellant on 20 December 2021 and provided a report dated 4 January 2022.[25] He confirmed his opinion expressed in his earlier report but formed the view that the appellant had developed psychological problems and abnormal illness behaviour, which had “overridden” the orthopaedic injuries.
[25] AALD, pp 8–14.

THE MEMBER’S REASONS

Although the only issue in this appeal relates to the cervical spine, in order to properly understand the submissions on appeal, it is necessary to also briefly summarise the Member’s reasons for accepting that the lumbar spine was injured in the pleaded incident.
The Member delivered his decision orally on 14 March 2022. He described the events leading to the incident and noted the injuries recorded at the time. He reviewed the treatment provided prior to discharge from the hospital on 26 June 2017.
The Member noted that the claim before the Commission was in respect of 62% whole person impairment in respect of the various body parts identified. He further noted that the allegation of injuries to the cervical spine, lumbar spine, left knee and visual system were disputed.
The Member reviewed the statement evidence provided by the appellant. He observed that the appellant alleged injury to approximately 19 different parts of the body but provided no evidence of which symptoms presented immediately after the fall, on admission to hospital or within the first few days of the admission. He said that, in the absence of that evidence, in order to determine whether the disputed injuries to the parts of the appellant’s body occurred, he was required to look at the contemporaneous medical evidence.
The Member referred to various authorities dealing with what constitutes a personal injury. He noted the submission that a fall of five metres would be capable of causing injury to the lumbar spine. He observed that there were no refences in the hospital notes to lumbar symptoms and the first notation of lumbar symptoms was on 20 June 2017 when the appellant had been walking all day. The Member further noted the submission by the appellant that the appellant’s more serious injuries were given priority treatment and the low back pain only became an issue when the appellant began mobilising. The Member said that support for this submission could be drawn from the evidence of Dr Kong.
The Member observed that Dr Watson, who examined the appellant in December 2017, was prepared to concede that the appellant’s degenerative changes in the lumbar spine were at least aggravated for a time by the fall in March 2017.
The Member referred to the respondent’s submission that it could not be accepted that the appellant suffered a lumbar injury in the fall when such symptoms were not referred to during the three months while the appellant was in hospital. He referred to Spigelman CJ’s observation in Seltsam Pty Ltd v McGuiness[26] in respect of the question of causation constituting inferences drawn from the facts, which make strands in the cable, rather than links in a chain.
[26] [2000] NSWCA 29.
The Member concluded that he was satisfied that there were sufficient “strands in the cable” to establish that the appellant suffered injury to his lumbar spine in the fall. He pointed to the following matters:
(a)    the mechanism of the injury, which he considered was sufficient to cause at least a soft tissue injury to the lumbar spine;
(b)    the lumbar spine was in close proximity to the pelvis, which had been fractured in several areas;
(c)    it was a reasonable proposition that pain would manifest in other parts of the body once the appellant began to mobilise;
(d)    the hospital note recorded on 20 June 2017 that the appellant had been walking all day, and
(e)    activities after discharge from hospital would likely increase and within three weeks of discharge, the appellant sought treatment for his lumbar pain.
The Member concluded that he was satisfied that the appellant suffered injury to his lumbar spine in the pleaded incident.
The Member turned to the issue of whether the appellant suffered injury to his cervical spine in the incident. He referred to the appellant’s submission that both the action of kicking the appellant in the face and the fall to the ground were capable of causing such injury. He noted that there was no reference in the hospital notes of any neck symptoms, although the appellant was noted to be wearing a neck brace and a CT scan of the cervical spine was performed, as well as other investigations, on 6 April 2017.
The Member referred to the appellant’s submission that on 2 April 2017, tingling in the left arm was noted, which the appellant submitted would indicate referred pain from the neck. He pointed to the first reference to neck pain in the notes of Dr Alsayed, which was entered on 14 August 2017 and included reference to radiculopathy, prompting Dr Alsayed to arrange an MRI scan of the cervical spine. The Member noted that:
(a)    the MRI scan undertaken on 19 September 2017 reported compression of the nerve roots;
(b)    the appellant reported neck pain to Dr Kong in November 2017;
(c)    Dr Watson conceded that there may have been a temporary aggravation of the appellant’s pre-existing pathology, and
(d)    on 29 March 2017, Dr Dent examined the appellant, noted he was wearing a cervical collar and recorded “no obvious injury.”
The Member indicated that the fact that the appellant was wearing a cervical collar in hospital would not, in the absence of a record of complaint, lead to the conclusion that the cervical spine was injured in the pleaded incident. The Member took into account that the appellant may have lost consciousness in the incident but noted that the appellant gave no explanation as to why he required a cervical collar or a CT scan of the cervical spine. The Member concluded that the provision of the cervical collar and the performance of a CT scan were probably no more than precautionary steps taken by the treatment providers. He referred to the tingling in the arm recorded on 2 April 2017, which he said was an isolated complaint. He concluded that, on that basis, and on the basis that there was no expert evidence about the connection between the tingling symptoms and the cervical spine, he did not accept that those symptoms supported a finding of injury to the cervical spine.

The Member explained that his finding that the appellant suffered injury to his lumbar spine was in part dependent upon the appellant’s lack of mobility as an explanation for the delay in reporting. The Member noted, however, that during the appellant’s stay in hospital, he received approximately 38 sessions of physiotherapy, primarily to his upper limbs, which involved mobilisation of the upper limbs. The Member reasoned that in the course of that treatment, it would be expected that, if there were neck symptoms at the time, those symptoms would have been recorded. Further, Dr Watson’s opinion was limited to there being, at best, the possibility of a temporary aggravation.
The Member took into account that the appellant relied upon the opinion of Dr Bodel, but said he considered that the contemporaneous evidence was more reliable. He also took into account the appellant’s submission that the radiological evidence was indicative of trauma to the cervical spine. He observed, however, that Dr Bodel’s evidence was that the scan disclosed degenerative pathology and the injury to the neck was no more than a soft tissue injury.
The Member formed the view that he could place no weight on Dr Bodel’s evidence as to injury to the cervical spine. The Member added that the fact that the appellant suffered a kick to his head and fell from a height were events that could have caused neck symptoms. He concluded, however, that the lack of recording of neck complaints during the appellant’s stay in hospital and the delay of nearly five months after the injury before complaints were recorded indicated that he could not be satisfied that the appellant suffered injury to his cervical spine on 29 March 2017.

The Member proceeded to determine the remaining issue of whether the appellant suffered injury to his left knee and to his vision in the fall.

The Member issued a Certificate of Determination on 15 March 2022. The Certificate of Determination records:
“The determination of the Commission in this matter is:
1.     The applicant sustained an injury to his lumbar spine, left knee and eyes in the course of his employment with the respondent on 29 March 2017.
2.     An award for the respondent for the claim of injury to the cervical spine.
The Commission orders that:
1.     The name of the respondent is amended to: Maurice Sarkis.
2.     The matter is remitted to the President for referral to a Medical Assessor as follows:
Date of injury:                 29 March 2017
Body Parts:  Right upper extremity (wrist, elbow, shoulder)
Left upper extremity (wrist)
Pelvis
Right lower extremity (knee)
Left lower extremity (knee)
Scarring to both wrists (TEMSKI)
Facial disfigurement and dental deterioration
Lumbar spine
Visual system
Method of Assessment: Whole Person Impairment
3.     The following documents are to be forwarded to the Medical Assessor:
(a)ARD with attachments;
(b)Reply with attachments; and
(c)Application to Admit Late Documents filed by the respondent on 4 March 2022.”

GROUNDS OF APPEAL

The appellant alleges that the Member committed two errors of law in concluding that the appellant did not suffer injury to his cervical spine on 29 March 2017. The errors are identified as:
(a) Ground A: the Member erred in law by failing to consider all of the evidence before him when deciding whether the appellant suffered an injury to the cervical spine, and
(b) Ground B: the Member erred in law by relying on the hospital records rather than “the other evidence”.

SUBMISSIONS

Ground A

The appellant’s submissions

The appellant points to the following matters as evidence to which the Member should have given regard:
(a)    there is no evidence that the appellant had a pre-existing injury or condition in relation to the cervical spine, or that there was an intervening or subsequent injury to the cervical spine;
(b)    the respondent did not challenge the appellant’s credit and the Member made no adverse finding in that regard;
(c)    in his report dated 20 November 2017, Dr Kong opined that all of the appellant’s complaints could possibly be attributable to the injury;
(d)    Dr Watson recorded marked limitation of movement of the cervical spine, and in his report dated 6 February 2018, noted that the MRI scan disclosed compression of the C5, C6 and C7 level nerve roots;
(e)    Dr Watson, in his report dated 14 April 2017, opined that the appellant may have suffered a temporary aggravation of the pre-existing pathology, which had resolved;
(f)    Dr Bodel opined a soft tissue injury to the neck;
(g)    Dr Robinson was of the view that the spinal canal stenosis suggested on the MRI scan would have been aggravated by the pleaded incident, and
(h)    Dr Alsayed’s clinical notes disclosed complaints of cervical pain on physical activity in September and October 2019.
The appellant adds that the notice issued by the respondent pursuant to s 78 of the 1998 Act relied upon Dr Watson’s opinion that the appellant had suffered a temporary aggravation of the pathology in the cervical spine which had resolved. The appellant refers to the decision of Byron DP in Symbion Health Limited (formerly Mayne Group Limited) v Ford,[27] and submits that a decision maker is required to have regard to all of the evidence and a failure to do so constitutes jurisdictional error and error of law. The appellant asserts that a failure to specifically refer to the evidence can indicate that the Member failed to consider it, which amounts to an error of law.
[27] [2008] NSWWCCPD 13.

The respondent’s submissions

The respondent asserts that the appellant has failed to identify error on the part of the Member and is merely seeking to re-argue the case put by the appellant to the Member. The respondent submits that the Member’s finding was a finding of fact, which was available to him on the evidence. The respondent contends that the appellant argued at arbitration that the Member ought to have preferred the opinions of the various doctors who examined the appellant sometime after the injury. The respondent submits that those doctors assumed that the appellant had injured his cervical spine in the pleaded incident and had been symptomatic since that time.
The respondent disputes the assertion that the appellant did not suffer from a pre-existing condition, and points to the evidence of Dr Bodel and Dr Watson, who both identified pre-existing pathology. The respondent refers to the appellant’s submission to the Member that the lack of complaints could be explained because the treatment was focussed on more serious injuries and submits that no complaints of neck symptoms were recorded during the appellant’s lengthy stay in hospital. The respondent submits that if there were symptoms, it would be expected that the complaints would have been recorded.
The respondent contends that it is clear from the Member’s reasons that he understood the competing arguments put by the parties and that the Member simply preferred the respondent’s case over that of the appellant. The respondent submits that the Member’s approach discloses no error of law, and this ground of appeal should fail.

Ground B

The appellant’s submissions

The appellant refers to the Court of Appeal authorities of Nominal Defendant v Clancy[28] and Mason v Demasi[29] as authority for the proposition that the clinical histories recorded in the notes of a busy practice should not be expected to be comprehensive, and caution should be adopted in reaching conclusions based upon the clinical notes of hospitals or medical practitioners. The appellant asserts that the Member erred in relying too heavily on the hospital’s clinical notes in the circumstances where he made findings in favour of the appellant’s lumbar spine on the basis of:
(a)    the height of the fall, which the Member considered capable of causing lumbar injury;
(b)    the mechanism of the fall, which the Member said was capable of causing such injury;
(c)    the close proximity of the lumbar spine to the pelvis, which was fractured;
(d)    the significant difference between mobility in hospital and the range of activities undertaken after discharge;
(e)    the appellant seeking treatment for his lumbar spine within three weeks of discharge from hospital, and
(f)    the treatment provided in hospital concentrated on treatment of the more serious injuries, which would explain the delay in complaint.
[28] [2007] NSWCA 349.
[29] [2009] NSWCA 227.
The appellant contends that the reasons for the finding in favour of the appellant’s lumbar spine should equally apply in respect of the allegation of injury to the cervical spine. The appellant submits that, in addition to the height of the fall, the appellant was kicked in the head, the impact of which was in close proximity to the cervical spine, so that it was reasonable for an injury to the neck to have occurred. The appellant adds that, as with the lumbar spine, the appellant had limited mobility in hospital and increased his daily activities after discharge, which would explain the delay in complaint of symptoms. The appellant points out that the neck was treated within a month after the lumbar symptoms. Further, the treatment received in hospital was focussed on the more serious injuries, which would explain the lack of reference to the cervical spine.
The appellant submits that the Member erred by placing too much reliance on the hospital notes and not having sufficient regard to all of those matters raised above.

The respondent’s submissions

The respondent indicates that he relies upon his submissions made in respect of Ground A of the appeal. The respondent adds that, while there is merit in applying caution when considering the contents of clinical notes, the absence of complaint for over three months is compelling. The respondent asserts that the Member appreciated the arguments put to him and treated the evidence with care and thorough reasoning.
The respondent reiterates that the Member’s finding was one of fact which was available to him, so there was no error. The respondent submits that the issues pertaining to the injury to the lumbar spine were different to those in relation to the cervical spine, so that the Member was not in error by applying a different reasoning process. The respondent says that it is clear from the Member’s reasoning process as to why the Member took that approach and the reasons do not disclose any error.
The respondent submits that the appellant must show error on the part of the Member in order for the appellate body to interfere with the decision, relying on Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[30] and Andersen v J & M Predl Pty Limited[31] as authorities for that proposition.
[30] [2001] FCA 1833 (Branir).
[31] [2018] NSWWCCPD 40.

THE RELIEF SOUGHT

The appellant seeks to have the matter remitted to a different Member for re-determination.
The respondent seeks to have the appeal dismissed.

CONSIDERATION

Section 352(5) of the 1998 Act requires that an appeal from a Member of the Commission is limited to a determination of whether the Member’s decision is affected by error of fact, law or discretion. The Member’s finding that he was not satisfied that the appellant injured his cervical spine in the pleaded incident was a finding of fact. The principles that apply in respect of establishing an error in the fact-finding process of a primary decision maker are well settled. Those principles, stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[32] have been consistently applied in the Commission. Applying those principles, the Member’s preference for some evidence over the other cannot be disturbed unless other probabilities so outweigh those chosen by the Member that the decision must be wrong. As Allsop J (as his Honour then was) observed in Branir:
“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.”[33]
[32] (1966) 39 ALJR 505 (Whiteley Muir).
[33] Branir, [28].
The appellant asserts errors of law on the part of the Member by failing to consider all of the evidence and by relying on the clinical notes recorded by the Royal Prince Alfred Hospital, rather than other evidence.

Ground A: the Member erred in law by failing to consider all of the evidence before him when deciding whether the appellant suffered an injury to the cervical spine

A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law.[34]
[34] Waterways Authority v Fitzgibbon [2005] HCA 57, [130] per Hayne J (McHugh and Gummow JJ agreeing).
The issue for the Member to determine was whether the appellant suffered an injury to his cervical spine in the pleaded incident. As the Member observed, the appellant’s statement evidence did not address a critical question in the appellant’s case, which was the question of when it was that the appellant began to experience symptoms in the neck. The appellant made a mere assertion that his neck was injured in the incident. As the appellant was silent as to the date of onset of symptoms, the Member correctly looked to the contemporaneous evidence to ascertain when those symptoms may have manifested. He took into account:
(a)    the absence of complaint of neck pain in the clinical notes recorded over the three-month period during which the appellant was hospitalised;
(b)    the observation by Dr Dent on the day the appellant was admitted to hospital that there was no obvious neck injury, and
(c)    the first recorded reference to neck pain, which was noted by Dr Alsayed on 14 August 2017.
The Member gave a logical explanation as to why he considered that the tingling recorded in the appellant’s arm, the presence of a cervical collar and performance of a CT scan was not persuasive evidence that the appellant had injured his neck in the pleaded incident. He reasoned that there was no medical opinion expressing a connection between the tingling in the arm and a cervical condition and that, in the absence of some complaint of pain, the placement of a cervical collar and performance of a CT scan of the cervical spine were no more than precautionary measures.
The appellant submits that the Member made no adverse finding in relation to the appellant’s credit. This is a rather curious submission in the light of the total absence of any evidence from the appellant as to the time of onset of the symptoms and no evidence from him that the onset was actually prior to the first recorded complaint of neck symptoms in August 2017. The appellant makes a further rather curious submission that the appellant did not suffer from a pre-existing condition. The assertion is totally contrary to the findings on the radiological investigations of the cervical spine and the opinions of Dr Watson, Dr Bodel and Dr Robinson, who all acknowledged the presence of a pre-existing condition.
The appellant submits that the Member was required to have regard to all of the available evidence. The appellant points to the evidence of Dr Watson, Dr Bodel and Dr Robinson, who were all of the view that the appellant suffered an aggravation injury to his cervical spine. If the appellant is asserting that the Member failed to have regard to that evidence, the assertion is wrong. The Member considered the evidence of Dr Bodel and Dr Watson but preferred the more contemporaneous evidence which weighed against the cervical spine being injured in the incident. The Member pointed to the evidence of Dr Alsayed and Dr Kong, who did not examine the appellant until almost five months and eight months (respectively) after the pleaded incident. While the Member did not specifically examine the evidence of Dr Robinson, it is implicit that Dr Robinson’s opinion fell in the same basket as those of Dr Watson and Dr Bodel in respect of their lack of contemporaneity. The decision maker is not required to deal with every piece of material that is before the Member,[35] particularly in circumstances such as in this case where that report fell beyond the Member’s search for contemporaneous reports of cervical pain. It is explicit in the Member’s reasons that he did not draw assistance from the later reports provided on a medico-legal basis.
[35] Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156.
The Member gave logical reasons, based on the evidence before him, for rejecting the assertion of injury to the cervical spine. Those reasons included consideration of the mechanism of being kicked and the height of the fall, which he considered could have caused injury. He noted, however, that cervical symptoms were not recorded in the hospital notes, Dr Dent found “no obvious injury” on examination and the first recorded complaint was some five months post-injury. He inferred that the radiological investigation and the provision of a cervical collar were precautionary measures. In addition, the Member noted that the appellant himself provided no explanation for the provision of the collar or the radiological investigation or any direct evidence as to when the symptoms manifested. In the light of the lack of evidence from the appellant, Dr Dent’s observation and the absence of complaints, the inference drawn and the conclusion reached were open to the Member.
The appellant has not pointed to any persuasive evidence that the Member failed to take into account in reaching his conclusion that the appellant had not established that his cervical spine was injured in the pleaded incident.
Thus, this ground of appeal fails.

Ground B: the Member erred in law by relying on the hospital records rather than “the other evidence”

There is a significant degree of overlap between this and the previous ground of appeal. The reasons put forward by the Member for giving weight to the hospital records are explained above. While the authorities warn that a cautionary approach to reliance on the notes of busy practitioners should be adopted, those authorities do not extend to say that no weight should be afforded to them at all, or that the contemporaneous records cannot be accepted above other evidence. In this case, the appellant was hospitalised for three months. The plethora of records, constituting many hundreds of pages adduced into evidence, show that the appellant received extensive hands on treatment from occupational therapists, physiotherapists, orthopaedic surgeons, trainee and qualified medical officers, nursing personnel, psychologists, and social workers. None of those treatment providers made mention of cervical symptoms. As discussed above, the appellant provided no evidence to assist the Member in determining when the cervical symptoms manifested or to challenge the lack of contemporaneous reporting.
The appellant asserts that the Member ought to have accepted that the cervical spine was injured for the same reasons that the lumbar spine was accepted. The Member gave consideration to the same matters, which are identified in Ground A above. There were countervailing reasons why the Member did not consider those matters sufficient to find in favour of the appellant in respect of the cervical spine. Firstly, Dr Dent specifically examined the appellant, including the appellant’s neck, on admission to hospital and no injury to the cervical spine was apparent. Secondly, the Member counted some 38 occasions over the months the appellant was in hospital when the appellant received physiotherapy. The physiotherapy included treatment to the right hand, elbow and shoulder, and involved bilateral mobilisation of both arms, and no complaint of cervical pain was recorded. Thirdly, the first recorded complaint of cervical symptoms was five months after the injury.

The appellant’s submission that the Member ought to have preferred the “other evidence” to that evidence contained in the hospital notes is not persuasive of error on the part of the Member and it cannot be said that other probabilities so outweighed those accepted by the Member that the Member’s conclusion was wrong. The Member’s conclusion was available to him and shows no error of the kind required to disturb the determination.
Ground B is not made out and fails.

CONCLUSION

The appellant has failed to establish error on the part of the Member and the appeal fails.

DECISION

The Member’s Certificate of Determination dated 15 March 2022 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

20 December 2022