Chep Australia Ltd v Strickland - [2012] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status:* Appeal to the Court of Appeal dismissed - CHEP Australia Ltd v Strickland [2013] NSWCA 351
CITATION:		Chep Australia Ltd v Strickland [2012] NSWWCCPD 27
APPELLANT:		Chep Australia Ltd
RESPONDENT:		Michelle Strickland
INSURER:		Brambles Australia Ltd
FILE NUMBER:		A1-8855/11
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		17 February 2012
DATE OF APPEAL DECISION:		24 May 2012
SUBJECT MATTER OF DECISION:		Fresh evidence on appeal, s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; consequential conditions from the effect of medication prescribed in the treatment of work-related injuries; haemorrhage from a cerebral aneurysm; causation and the application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	HWL Ebsworth Lawyers
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 17 February 2012 is confirmed. The appellant pay the respondent worker’s costs of the appeal.

INTRODUCTION

This appeal concerns whether the ingestion of Mobic, a medication used in the treatment of an orthopaedic injury sustained during the course of the worker’s employment, is causally related by reason of its effects on the worker’s blood pressure, to the haemorrhage from an aneurysm.

BACKGROUND

Ms Strickland was employed by the appellant, Chep Australia Ltd (Chep), as a machine operator/factory worker. She worked on a process line, which required her to undertake repetitive work lifting crates onto a conveyer line.
Commencing in around 2008, the worker began to experience symptoms in her right elbow, left shoulder and left wrist. The symptoms continued throughout 2009.
On 19 August 2010, the worker was prescribed Mobic for the treatment of her symptoms. It is accepted that taking Mobic can cause an elevation in blood pressure, a known risk factor in aneurysmal haemorrhage.
The worker ceased taking Mobic on 7 October 2010. On 11, 12 and 15 October, Ms Strickland complained to her general practitioner that she was experiencing symptoms of hypertension and headache. She resumed taking Mobic on 28 October 2010, when her blood pressure was 128/80, that is, normal.
On 17 November 2010, Ms Strickland experienced symptoms of extreme pain in her head and eyes, and other neurological symptoms. She was conveyed by ambulance to Liverpool Hospital, where she was diagnosed with a grade I subarachnoid haemorrhage secondary to a left posterior communicating artery aneurysm.
The aneurysm was treated with a procedure known as coiling, which involves the insertion of tiny platinum coils threaded through a catheter into the aneurysm, blocking blood flow into the aneurysm and preventing rupture. Ms Strickland remained in hospital until 1 December 2010. She was incapacitated from 17 November 2010 until 4 November 2011.
Ms Strickland alleged that the haemorrhage from the aneurysm was caused by a sudden increase in blood pressure brought about by consuming Mobic prescribed for the treatment of her elbow and neck injuries.
Ms Strickland’s claim for weekly workers compensation benefits and medical expenses was declined by Brambles. It issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 17 December 2010. It denied liability on three bases:
“1.     That you did not sustain an injury arising out of or in the course of your employment as alleged or at all in accordance with s 4.
2.     That your employment was not a substantial contributing factor to the injury alleged in accordance in accordance [sic] with s 9A.
3.     That any incapacity for work does not result from an injury in accordance with s 33.”
In contravention of s 74, the reasons for the dispute were not clearly identified.
On 7 October 2011, Ms Strickland filed an Application to Resolve a Dispute in the Commission. Although the application claims weekly compensation on an ongoing basis from 12 November 2010, by the time the matter came to hearing, it was agreed that the benefits claimed were for a closed period between 12 November 2010 and 4 November 2011.
On 31 October 2011, Chep filed a Reply to the Application to Resolve a Dispute. It denied liability for the reasons given in its notice under s 74 of the 1998 Act. However, again the appellant failed to identify clearly the reasons for disputing injury, incapacity and the failure to satisfy the requirements of s 9A of the 1987 Act.
On 1 February 2012, the matter came before a Senior Arbitrator of the Commission. The legal representatives for both parties made detailed submissions. No oral evidence was called.
The Arbitrator noted that the only issue before her was “whether or not the rupture of the aneurysm was caused by the Mobic medication which had been prescribed for the accepted work-related injuries”.
On 17 February 2012, the Arbitrator issued her decision and a Statement of Reasons. The Arbitrator found in favour of the worker, stating:
“I therefore find that the applicant has discharged the onus, and established, on the balance of probabilities, the causal connection, and that the rupture of the aneurysm resulted from the consumption of Mobic, which was treatment for work-related injuries.”
The Commission issued a Certificate of Determination in the following terms:
“1. I grant liberty to the parties to apply to have the proceedings listed for a telephone conference to resolve the claim for weekly compensation as requested.

2. The respondent to pay the applicant’s medical and treatment expenses upon production of accounts and/or receipts.

3. The respondent to pay the applicant’s costs as agreed or as assessed.

4. I am satisfied that this matter ought to be certified complex in accordance with Schedule 6, Item 4 of the Workers Compensation Regulation 2010 because of complex medical issues. I so certify. I am satisfied that an uplift of 15 per cent is justified, applicable to the costs of both the applicant’s and respondent’s solicitors.”

Chep appeals the Arbitrator’s decision.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant has submitted that the appeal can proceed on the papers and without a formal hearing. Ms Strickland has sought an oral hearing. The reasons given for seeking an oral hearing are extremely brief and are in these terms:
“Although the matters raised by the appellant are addressed above, the respondent, by way of further oral submissions, should be given the opportunity to draw the Commission’s attention to certain cogent points in opposing the appeal application.”
Having regard to Practice Directions Nos 1 and 6, and the documents that are before me, notwithstanding the respondent’s submission, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing. I am not satisfied that the respondent has given any compelling reason for holding a hearing and, having regard to the nature of the issue to be determined, I am not satisfied that the matter calls for an oral hearing.

ON THRESHOLD MATTERS

Section 352(3) is in the following terms:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

PROCEEDINGS BEFORE THE ARBITRATOR

THE EVIDENCE

Michelle Strickland

Ms Strickland provided a signed statement of evidence dated 14 September 2011.
Ms Strickland stated that she had been employed by Chep since the middle of 2001. She works as a machine operator/factory worker, which requires very repetitive work on a process line, including, in particular, repetitive bending of the elbow and wrist caused by lifting crates.
The worker first experienced pain in her right elbow around 2008. By March 2009, she was having problems with her elbow, her neck and her left shoulder. This was reported to her employer and she was referred to “the company doctor”. She was initially certified fit for suitable duties, but returned to full duties by November 2009. She explained that the company doctors are those practising at the WorkCare Medical Centre in Wetherill Park. The worker said that she does not see the same doctor at that practice on each occasion she is treated there.
Ms Strickland stated that she first experienced hypertension in around 2004/2005. She was prescribed Avapro, which she continues to take.
Because of increasing discomfort in the left wrist, Dr John Affleck prescribed Mobic on 6 August 2010. That was the first occasion that Ms Strickland had taken Mobic. She stated that she commenced taking it around the middle of August and Dr Affleck continued to prescribe Mobic on 19 August and 7 September 2010.
Ms Strickland added that, during this period (19 August 2010 to 7 September 2010), she commenced to experience increasing hypertension and headaches. She complained to Dr Hedge, her local general practitioner. She also complained to Dr Malcolm Webb at the WorkCare Medical Centre of headaches and hypertension in consultations with him in early October 2010. On 7 October 2010, Dr Webb recommended that she cease taking Mobic.
Ms Strickland stated that she continued to experience increased blood pressure and headaches “for a few more days”, but eventually her blood pressure returned to normal and the headaches ceased. During this time, she continued taking Avapro.
Ms Strickland stated that, as her blood pressure returned to normal, Dr Webb resumed prescribing Mobic. She believed that, on 28 October 2010, she obtained a further prescription and was advised to resume taking 15 mg daily, which she did. Mobic was again prescribed in consultation with Dr Webb on 4 November 2010 and up until 16 November 2010, when she suffered the aneurysmal haemorrhage.
The worker described the symptoms that she suffered leading to her admission to Liverpool Hospital, where she remained for 14 days following treatment for the haemorrhage. These matters are not in issue.

Dr Hedge

Dr Hedge is the worker’s general practitioner. He provided a brief report dated 27 January 2011 and, for the sake of convenience, I shall restate its contents:
“This is to certify that Ms Strickland is a patient who currently attends my surgery. Ms Strickland attended surgery for severe headaches and hypertension follow up on the following dates: 26 August 10, 11 October 10, 12 October 10, 15 October 10.”

Clinical notes of Drs Affleck and Webb

Drs Webb and Affleck are general practitioners from the same practice, known as WorkCare Medical Pty Ltd. The relevant extracts from the clinical notes of Drs Affleck and Webb include the following:
“Consultation Date: 6/08/2010             Consulted by Dr Affleck, John
Job Title: Process worker at Chep since 2001
         Left handed worker with limited use of left hand.
Presenting Complaint: Progressive onset of pain in the left wrist region for about one month. Now exquisitely painful in certain positions and tender in distal forearm
Alllergies: none
Medications/Over the Counter Preparations: Avapro for blood pressure
Recreational Substances
Past Medical History: General health is good. Hypertension noted
Past Surgical History
Family History
Social History
Examination: Swollen left hand and wrist, especially around left thenar eminence. Tender on extensor surface of distal forearm and positive Finkelstein’s test.
Return to Work Barriers: Does not want to go on day shift and would like time off work – declined, except for rest of today.
Psychological Barriers: none identified
Management: Advil 2 caps given orally.
Prescription for Mobic 15 mg 1 bd for 5 days then 1 daily
Tubigrip
XR and ultrasound
Consultation Date: 12/08/2010             Consulted by Dr Affleck, John
Progress of Presenting Complaint: Less pain and swelling. Still tender in the distal left forearm and Finkelstein’s test still positive.
Has not had XR or US but in light of improved condition does not need these.
Return to Work Barriers
Psychological Barriers
Management: Mobic recommended (but has not been acquired by worker!)
Tubigrip
Physiotherapy
Consultation Date: 19/08/2010             Consulted by Dr Affleck, John
Progress of Presenting Complaint: ISQ
Examination: Finkelstein’s pos
Return to Work Barriers: Fatigue +++
Psychological Barriers
Management: Mobic – needs to get it and take it. Alex Saloman said they will pay for it!!
Continue physio
Tel conversation with Alex Saloman (insurer) for 10 mins

Consultation Date: 26/08/2010             Consulted by Dr Affleck, John
Progress of Presenting Complaint: States that she is improving. (Less pain.)
Examination: Finkelstein’s test remains positive. Slight tenderness along line of thumb tendons.
Return to Work Barriers
Psychological Barriers
Management: Continue Mobic and physio.
Ultrasound imaging
Consultation Date: 7/09/2010               Consulted by Dr Affleck, John
Progress of Presenting Complaint: Considerably improved.
Examination: Finkelstein test equivocal
Return to Work Barriers
Psychological Barriers
Management: Upgrade activity
Continue Mobic and therapy.
Consultation Date: 21/09/2010             Consulted by Dr Affleck, John
Progress of Presenting Complaint: States that in last week the left thumb/wrist has been more painful than before, but states that it does not hurt when performing her duties at work.
Examination: L Finkelstein test – weakly positive. Objectively is slowly improving. (Still falls asleep in consulting room chair within 2 mins when not actively engaged in conversation.)
Return to Work Barriers
Psychological Barriers
Management: Continue conservative mx
Consultation Date: 7/10/2010               Consulted by Dr Webb, Malcolm
CASE CONFERENCE:
Joanna Patteron [sic] (Sydney Occupational Services) & Chiro from JB
NB: Patient is deaf, but lip-reads
PROGRESS:
Reports improvement
Says shye [sic] got better after had four days off over long weekend
Still taking Mobic: no longer thinks she needs it
PAST Hx;
HT -> Avapro)
Migrraines [sic]
No other medical illness
Previous injuries (2008–2009)
OE:
GRIP 24 kg pain-free (right 23 kg)
Negative Finkelstein test
Mild discomfort on resisted thumb extension & abduction
CONFERENCE:
Currently washing/repairing and hanging crates
Discussed Office duties: difficulty with using telephgone [sic]
Crates weigh ~ 2.5 kg
- this was maximum weight for lifting pre-injury
Opening crates was probable cause of injury: she was using lateral pinch-grip
Now has learnt better way to open them
PLAN:
Trial cessation of Mobic (resume if pain increases)
Trial two hours normal duties (one hour beginning & end, on Mon/Wed/Fri
- omit in morning f [sic] day of physioRx
Review in two weeks.
Consultation Date: 21/10/2010             Consulted by Dr Webb, Malcolm
PROGRESS:
Reports improvement
Was sick last week: did not attend work
Says Wednesday (yesterday) pain in wrist –
- cannot think of any specific cause
- ? did not take break between tasks
- did not work rest of shift
However this settled overnight.
Otherwise jas [sic] managed two hours’ normal duties on Monday OK
OE:
Slightly tender at one spot radial right wrist
Full Flexion/extension/pronation/supination/adduction/abduction
Negative Finkelstein test
Pain on resisted but not unresistd [sic] thumb extension
Negative Finkelstein test
No discomfort on resisted thumb abduction
PLAN:
Continue current Rx
Trial three hours normal duties
Review in one week.
Consultation Date: 28/10/2010             Consulted by Dr Webb, Malcolm
PROGRESS:
Patient reports being pain-free while at work
Drives back home OK
However pain when she comes back in evening:
- settles with shower and topical NSAID
Also pain overnight when pulls sheet over her:
- does not wear splint at night
OE:
BP 128/80
GRIP: 8 kg R = L pain-free
No pain on Finkelstein test
Mild pain on resisted thumb extension or abduction
Palpable lump radial aspect wrist (NB Normal diagnostg [sic] US in September)
FOR:
Trial of PIDs
Resume Mobic 7.5 - 15 mg daily
Wear thumb splint at night
Continue physioRx
Review in one week.
Consultation Date: 4/11/2010               Consulted by Dr Webb, Malcolm
CASE CONFERENCE: Joanne Patterson from Sydney occupational Services
PROGRESS:
Patient reports being pain-free while at work most days
Drives back home OK
However pain when she comes back in evening:
- settles with shower and NSAID
Also pain overnight when she pulls sheet over her: - does not wear splint at night, pain in morning when she wakes
Taking Mobic OK at lunch
Some relief with ice
RTW:
Doing PIDs
Has noted some discomfort in neck and shoulders & right elbow
OE:
LEFT WRIST:
No pain on Finkelstein test
Mild pain on resisted thumb extension or abduction
No pain on gripping
No pain on resisted wristr [sic] extension
Some discomfort on passive wrist fleion [sic] 60deg (right -> 70deg)
Palpable lump radial aspect wrist (NB Normal diagnostic US in September)
RIGHT ELBOW:: Mildly tender lateral epicondyle
No pain on reisted [sic] right wrist or finger extension, or on gripping
C-SPINE: R&L rotation 70deg bilat. pain-free
SHOULDERS: both abduct 160deg pain-free
IMPRESSION:
Tightness in wrist extensors as well as residual de qrv zzzz [sic]
FOR:
Continue PIDs
Mobic 7.5 - 15 mg daily
Wear thumb splint at night
Ice when need and every bresk [sic] and when gets home
Continue physioRx
Wear splint at work and in bed
Review in three weeks.”

Dr Affleck issued a series of WorkCover certificates. The certificates issued on 29 December 2010 and 1 February 2011 note as part of the management plan “Mobic 7.5 - 15 mg daily”.

Dr Simon McKechnie

Dr McKechnie is the worker’s treating neurosurgeon. Dr McKechnie’s first report is dated 18 January 2011. He obtained a history of hypertension and smoking. He noted that, around July 2010, the worker sustained an injury to her left wrist and was placed on Mobic for approximately two months. On 17 November 2010, she presented to Liverpool Hospital with a sudden severe headache. A CT scan demonstrated a subarachnoid haemorrhage. The cerebral angiogram subsequently demonstrated a 1.5 cm diameter left terminal internal carotid artery aneurysm. Dr McKechnie noted that Ms Strickland was treated by Dr Jason Wenderoth from Interventional Radiology. He noted complaint of mild occasional headache and a disturbance to the worker’s balance. He emphasised the need for good blood pressure control and noted that Ms Strickland had stopped smoking.
In a second report dated 7 March 2011, Dr McKechnie took a slightly more detailed history.
He opined that aneurysms are incidental. Risk factors for aneurysms include smoking, hypertension, family history, and certain connective tissue and other diseases. He said:
“The only possible relationship to her workers compensation injury would be if the Mobic caused a significant and sudden rise in her blood pressure which precipitated rupture of the aneurysm. Raised blood pressure is a known side effect of Mobic.”
He recommended that the appellant (to whom the report was addressed) contact the worker’s general practitioner “to see if there is documented rise in blood pressure following commencement of Mobic”. He stated that, if this was documented, the patient would have a case for her condition to be covered by workers compensation. His report contains a history of the worker’s current presentation and his opinion as to her fitness for employment. On the same day, Dr McKechnie wrote to Dr Hedge, reporting on his clinical findings and diagnosis.

On 6 July 2011, Dr McKechnie wrote to Turner Freeman, the worker’s solicitors. He repeated the history as outlined above. Dr McKechnie noted that many aneurysms are incidental. Risk factors for aneurysms are smoking, hypertension, family history, and certain connective tissue and other diseases. He again stated that the only possible relationship to her workers compensation injury would be if the Mobic caused a significant and sudden rise in blood pressure which precipitated the rupture of the aneurysm. He stated that raised blood pressure is a known side effect of Mobic. The medication is also anti-inflammatory, which causes platelet dysfunction and a mildly increased bleeding tendency.
Dr McKechnie stated:
“According to the correspondence that you have sent me, there is supporting documentation of hypertension following commencement of Mobic. It would therefore [sic] reasonable to say that the Mobic has been a contributory factor to the subarachnoid haemorrhage in November 2010. However, it did not cause the aneurysm per se. Further, the aneurysm at diagnosis was reasonably large, 1.5 cm, and statistically it would have been likely to rupture in the future regardless of the Mobic use. It is impossible however to say that this would have definitely occurred and when it would have occurred.”
Dr McKechnie went on to provide an opinion with respect to Ms Strickland’s prognosis and fitness for work. The correspondence sent to Dr McKechnie on 30 March 2011 is extracted in full at [46] of this decision.

Professor Matthew Kiernan

Professor Kiernan is a professor of neurology. He was retained to assess the worker on behalf of the appellant. He examined Ms Strickland on 11 August 2011 and reported to Moray & Agnew Lawyers, the appellant’s then solicitors. Professor Kiernan stated that he had reviewed the following documents:
(a)     A confidential event report;
(b)     Claim forms;
(c)     Witness statements;
(d)     Medical notes;
(e)     Liverpool Hospital notes;
(f)      Medical certificates/reports.
Professor Kiernan obtained a history of the events immediately preceding the aneurysmal rupture and the subsequent treatment. After noting the worker’s current symptoms, a medical history, social history and examination findings, he answered a series of questions that were put to him for his response. The questions and the answers, so far as they are relevant, are reproduced as follows:
“1.     The nature and extent of the injury which occurred on 16 November 2010.
The nature and extent of the subarachnoid haemorrhage which occurred on 16 November 2010 is contained in the body of my report.
2.     The probable cause/causes of that.
In terms of the probable causes, aneurysms are generally constitutional in nature. Of relevance for Ms Strickland, her sister also suffered an intracerebral aneurysm, and patients may have family histories of aneurysms. In terms of aneurysmal rupture and subarachnoid haemorrhage, the key issues relate to vascular risk factors, particularly hypertension and smoking. It is noted that Ms Strickland has a 20 pack year history of smoking and continues to smoke. In addition there is a history of hypertension dating back to 2005.
3.     In particular, whether, on the balance of probability, the consumption of Mobic could have been responsible for the aneurysm.
On the balance of probability, the consumption of Mobic has not been responsible for Ms Strickland’s aneurysm. It is noted that Mobic was commenced approximately two months prior to the subarachnoid haemorrhage. A 2cm aneurysm would have been present for an extended period of years prior this [sic].”

Other evidence

Pursuant to an Application to Admit Late Documents by the worker, a receipt from Macarthur Chemist at Ingleburn dated 20 August 2010 was admitted. The receipt is in respect of “Mobic tab 15 mg”.
Pursuant to an Application to Admit Late Documents dated 15 December 2011 filed by the worker’s solicitors, a prescription issued by Dr Affleck dated 19 August 2010 was admitted. The prescription is in respect of Mobic tablets 15 mg, quantity 30. It appears to have been dispensed on 20 August 2010.
Also attached to the abovementioned Application to Admit Late Documents is a prescription issued by Dr Webb on 4 November 2010 for Mobic (meloxicam 7.5 mg). The prescription was issued with two repeats.
The appellant’s submissions on appeal place significant emphasis on a letter written by Ms Strickland’s solicitors, Turner Freeman, to Dr McKechnie dated 30 March 2011. That correspondence was in the following terms:
“We act on behalf of Mrs Michelle Strickland relation [sic] to her various work related injuries. We note you have treated our client following her sub arachnoid haemorrhage of 17 November 2010.
We have perused your medical records and note your report of 18 January 2011. In particular, we note your opinion that the possible relationship of the aneurysm with her employment would be through the prescription of Mobic in treatment for her left wrist injury.
We have obtained the clinical file of Dr John Affleck who treated our client in relation to the left wrist condition.
You will see in the notes our client was first prescribed Mobic following consultation with Dr Affleck on 6 August 2010. The prescription was confirmed on 19 August 2010 and again on 7 September 2010.
By 7 October 2010 there is reference in consultation with Dr Malcolm Webb (of the same medical practice) of hypertension (HT-avapro). There is a trial cessation of Mobic following that consultation.
Further consultations with Dr Malcolm Webb on 28 October 2010 revealed normal blood pressure (BP 128/80). In that same consultation, Mobic was resumed. You will see from the consultation of 04 November 2010, Mobic was continuing to be taken and continued to be prescribed.
We have also enclosed Dr Affleck’s and Dr Webb’s WorkCover medical certificates which confirmed the prescription of Mobic. We have also enclosed a notation from Dr R Hedge which confirms our client attended his surgery complaining of severe headache and hypertension on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010.
You will see from these dates, our client’s complaints of headache and increased blood pressure correspond with commencement of her use of Mobic in August 2008 and up until the medication was ceased following consultation in October 2010.
Unfortunately it appears it was resumed on 28 October 2010 and this corresponds with our client suffering her aneurysm on 17 November 2010.
We would be pleased if you could review this material and your previous report and advise whether there is sufficient evidence to suggest that our client’s aneurysm is substantially contributed to by her use of Mobic which was prescribed in the normal fashion to treat her work related left wrist injury.
If that is correct, can you then advise whether our clients’ [sic] current incapacity for employment (due to the aneurysm) is related to her work injury also.
In addition to this, we would be pleased if we could have your supplementary medical report outlining the following:
1.Diagnosis;
2.Causation;
3.Prognosis;
4.Future treatment.
We undertake to be responsible for your reasonable report fee and thank you in advance for your assistance in this matter.
Should you wish to discuss the matter, or require any further information, please do not hesitate to contact our office directly.”

THE ARBITRATOR’S DETERMINATION

The Arbitrator identified at [18] of the Statement of Reasons (Reasons) that the only issue for determination is whether there is a causal connection between the rupture of the aneurysm and the consumption of Mobic.
The Arbitrator stated at [13] of the Reasons that, in order to succeed in the claim for consequential loss, the applicant must establish that the injury, being the rupture of the aneurysm, on the balance of probabilities, “results from” the ingestion of Mobic, which was prescribed as treatment for work-related injuries. The Arbitrator applied the principles relating to the issue of causation identified the by Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) at 463–4.
The Arbitrator was satisfied as a question of fact that Ms Strickland took the Mobic she was prescribed because of her unchallenged evidence that she did so, and because it was consistent with the prescription and purchase of Mobic. She accepted that, although there was only a single pharmacy receipt, dated 20 August 2010, and two prescriptions, dated 19 August 2010 and 4 November 2010, there was no reason to disbelieve Ms Strickland’s evidence in that regard.
The Arbitrator noted that the clinical notes of Drs Affleck and Webb confirmed the monitoring of Mobic by Dr Webb and its effects on Ms Strickland. She noted in particular the entry in the clinical notes dated 19 August 2010, which recorded that the Mobic had been recommended, but “not yet purchased by the worker” and “needs to get it” (referring to the Mobic) and “take it”. The Arbitrator added that Dr Affleck had recorded that he had been in conversation with the relevant officer of the insurer, Alex Saloman, and that it was agreed that the insurer would pay for the medication.
The entry in the clinical notes of 26 August 2010 noted that Ms Strickland’s treatment continued to involve Mobic, which is consistent with the Mobic being purchased as evidenced by the pharmacy receipt on 20 August 2010.
The clinical notes show that, on 7 October 2010, Dr Malcolm Webb recorded that Ms Strickland was experiencing “migraines” and that she was “still taking Mobic”, but noted that she “no longer thinks she needs it”. He concluded that she should cease taking Mobic, but resume if pain increased.
The Arbitrator noted that, on 21 October 2010, Dr Webb again examined Ms Strickland and noted improvement. On 28 October 2010, he recorded that she was pain-free while at work, but that pain returned in the evening. He noted her blood pressure as 128/80 and that it was normal. He prescribed the resumption of Mobic 7.5 mg to 15 mg daily. On 4 November 2010, Dr Webb recorded that Ms Strickland was continuing to take Mobic.
The Arbitrator concluded that the clinical notes support the conclusion that Ms Strickland was prescribed Mobic for pain for her work-related injuries, she took it as prescribed, and complained of experiencing migraines. She then went off the medication, her blood pressure returned to normal after ceasing Mobic for two weeks, and she then resumed taking Mobic.
The Arbitrator accepted that there was no record of an elevation in blood pressure leading to Dr Webb’s recommendation to cease taking Mobic. However, the Arbitrator was satisfied that the following inferences could reasonably be drawn from the evidence because they were reasonably and logically available. First, that Ms Strickland took Mobic as prescribed. Second, she subsequently complained of experiencing migraines. Third, Dr Webb was sufficiently concerned to advise Ms Strickland to cease taking Mobic but he monitored her blood pressure. Once Ms Strickland’s blood pressure had normalised, he resumed prescribing the Mobic. Fourth, that Ms Strickland’s blood pressure was elevated, and that was the reason for the cessation of Mobic. No other reason was recorded and it accords with the complaints of migraines and subsequent recording of blood pressure following the resumption of the Mobic.
The Arbitrator accepted that the aneurysm was a congenital condition.
The Arbitrator preferred the evidence of Dr McKechnie, which supported the worker’s claim that consuming Mobic had been a contributory factor to the subarachnoid haemorrhage. Even though the haemorrhage could have occurred at any time, the Arbitrator accepted Dr McKechnie’s evidence that it was precipitated on 16 November 2010 by the consumption of Mobic. Weighing Professor Kiernan’s evidence, the Arbitrator said at [30]:
“Professor Kiernan only expressed the view regarding whether Mobic caused the aneurysm, and not whether the Mobic caused its rupture. The probative value is diminished by this omission and I therefore give his opinion little weight.”
The Arbitrator concluded that the worker had discharged the onus and established, on the balance of probabilities, that the rupture of the aneurysm resulted from the consumption of Mobic.

ISSUES ON APPEAL

The grounds of appeal are that the Arbitrator erred:
(a)     in finding the fact that, when the worker consulted Dr Malcolm Webb on 7 October 2010, he recorded that she was experiencing a migraine;
(b)     in drawing the inferences “that Dr Webb was sufficiently concerned to cease the Mobic, that he monitored her blood pressure; and that once it had normalised, he resumed prescribing the Mobic”;
(c)     in drawing the inferences that Ms Strickland’s blood pressure was elevated and that was the reason for cessation of Mobic;
(d)     in finding the fact that no other reason is recorded for the cessation of Mobic;
(e)     in failing to give adequate reasons for drawing the inferences she did;
(f)      in finding that the consumption of Mobic caused the rupture of the congenital aneurysm;
(g)     in finding that the report of Dr Hedge states that the worker complained of hypertension at her visits to him on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010;
(h)     in finding that Professor Kiernan only expressed a view regarding whether Mobic caused the aneurysm and not whether Mobic caused its rupture;
(i)      in finding that the applicant had discharged the onus of proof.
A further issue concerns whether the appellant should be permitted to rely on fresh evidence on appeal.

FRESH EVIDENCE

Before turning to the merits of the appeal, it is convenient at this point to determine the appellant’s application to rely on fresh evidence.
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The admission of fresh evidence on appeal is discretionary. The principles relevant to the exercise of the discretion were recently considered by Deputy President Roche in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7, where the Deputy President said at [70]–[72]:
“70.   Consistent with the subsection and the principles discussed in Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) and Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 (Nowlan)), an applicant seeking leave to rely on fresh evidence (or evidence in substitution) must establish:
(a) that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b)that the evidence is such that there is a high degree of probability that there would be a different result;
(c)that the evidence is credible, or
(d)that, in the circumstances of the case, it is just to admit the evidence.
71. In the event that evidence sought to be tendered is evidence that was available to the party, or could reasonably have been obtained by the party, before the proceedings concerned before the Arbitrator, then, in addition to the matters identified at [70] above, it will be necessary to establish that the failure to grant leave to admit the evidence will cause ‘a substantial injustice in the case’.
72.    Essentially, the power to admit fresh evidence (or evidence in substitution) on appeal exists to serve the demands of justice. In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ [1998] HCA 67; 197 CLR 172 (CDJ) (at [111]):
‘Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.’”
The appellant seeks to rely on the following documents which are said to constitute fresh evidence:
(a)     The transcript of proceedings before the Arbitrator on 1 February 2012;
(b)     The letter from Turner Freeman to Dr McKechnie dated 30 March 2011;
(c)     The report of Dr Affleck dated 5 March 2012;
(d)     The report of Professor Kiernan dated 8 March 2012;
(e)     Clinical notes of Dr Hedge of 12 February 2010 to 2 December 2010.
The respondent has no objection to the first two documents. There are two transcripts of the proceedings. The official transcript of the proceedings was obtained by the Commission and made available to the parties on 23 March 2012. It is the official record of the proceedings before the Arbitrator and it is before me on the appeal. It has not been submitted that it is inaccurate in any material respect. I do not propose to admit the form of the transcript attached to the Application to Admit Fresh Evidence, which appears to have been prepared at the request of the parties.
The letter to Dr McKechnie of 30 March 2011 was tendered at the arbitration and is already in evidence (T2.7). The admission of the remaining documents is opposed by Ms Strickland.

Report of Dr Affleck 5 March 2012

Dr Affleck prepared a report dated 5 March 2012 (a few weeks after the Arbitrator’s decision) addressed to Brambles. He stated that he had treated Ms Strickland for her elbow condition in 2009 and, in 2010 and 2011, he treated her for de Quervain’s tenosynovitis of the left wrist.
Dr Affleck noted that Ms Strickland suffered from hypertension and that she had been under the care of her local doctor for that condition. Dr Affleck stated that, at the initial attendance on 6 August 2010, Ms Strickland had advised him that she suffered from high blood pressure and took tablets for this condition, stating that her health was otherwise good. He said:
“On 7/10/2010 she saw Dr Webb and when he reviewed her past medical history she told him (as recorded in the medical record) that she suffered ‘migraines’. On that day I note from the record that Dr Webb ceased treatment with Mobic as Ms Strickland said she did not think she needed it any more – having improved somewhat with regard to the pain she had been experiencing.
Ms Strickland did not ‘present to me with complaints of headache or symptoms of hypertension in 2010’. She presented to me for review of and treatment for her condition of de Quervain’s tenosynovitis and understood that I managed her work injury while personal health matters were matters she should properly address to her own GP.”

Submissions

Dr McKechnie’s report of 7 March 2011 raised the possibility of a causal relationship between the ingestion of Mobic, for the treatment of the accepted work injury, and a significant and sudden elevation in the worker’s blood pressure sufficient to precipitate the rupture of the cerebral aneurysm. He noted that elevated blood pressure is a known side effect of Mobic. He recommended that inquiries be made of the worker’s general practitioner to determine if there was evidence of a rise in blood pressure after she commenced taking Mobic.
Ms Strickland’s solicitors then obtained the clinical history and provided it to Dr McKechnie under cover of their letter of 30 March 2011 (referred to at [40] and [46] of this decision) for his further opinion. The history contained the clinical notes of Dr Affleck and Dr Webb and brief report from Dr Hedge. Dr Hedge stated that Ms Strickland attended the surgery “for severe headaches and hypertension follow up on the following dates: 26 August 10, 11 October 10, 12 October 10, 15 October 10”.

Based on an assessment of this further material, Dr McKechnie provided a supplementary report dated 6 July 2011, in which he expressed the view that, having regard to the documentation provided, in his opinion, it was reasonable to say that the Mobic had been a contributory factor to the subarachnoid haemorrhage in November 2010.
The report of Dr Affleck now sought to be tendered as late evidence seeks to clarify that Ms Strickland did not present to Dr Affleck with complaints of headaches or symptoms of hypertension during 2010. He essentially treated her for her elbow condition and for de Quervain’s tenosynovitis.
Chep submits that the admission of this report is necessary to clarify the clinical notes and support the claim that Ms Strickland did not complain of headaches or symptoms of hypertension during her consultations with Drs Affleck and Webb.
It is further submitted that the admission of the report is necessary to respond to the final sentence at [27] of the Statement of Reasons of the Arbitrator, where the Arbitrator drew the inference that the cessation of Mobic was due to elevated blood pressure which, in the absence of any other reason being recorded, “accords with the complaints of migraines, the subsequent recording of the blood pressure, followed by the resumption of the Mobic”. It is also submitted that its exclusion would result in substantial injustice to the appellant.
Chep submits that this report was not available prior to the arbitration, it having been generated on 5 March 2012. Chep submits that the reason it was not requested earlier is because the report of Dr Hedge and the clinical notes of Dr Affleck and Dr Webb did not disclose any recording of blood pressure during the numerous attendances of the worker upon them. It was not until the letter from Turner Freeman to Dr McKechnie dated 30 March 2011 was tendered during the course of the arbitration that Chep appreciated that the opinion of Dr McKechnie was based upon a misinterpretation of Dr Hedge’s report and the clinical notes of Drs Affleck and Webb, namely that, in the absence of recorded elevated blood pressure at any time prior to the rupture of the aneurysm, Dr McKechnie accepted the report of Dr Hedge as evidence of hypertension in the weeks prior to the aneurysmal haemorrhage.
Ms Strickland submits that the report from Dr Affleck dated 5 March 2012 was produced in response to a letter of the same date. She submits there is no evidence to suggest that the report could not have been obtained at any time prior to the hearing of the matter before the Arbitrator on 1 February 2012. The only reason advanced for its admission is that the appellant claims that it did not appreciate the basis of Dr McKechnie’s opinion. The test is whether the material could reasonably have been obtained, not whether the party thought they should obtain the material.
As Ms Strickland further submits, in any event, the basis of the respondent worker’s claim had been clearly set out in a letter to the appellant on 12 July 2011 (Application to Resolve a Dispute 52). It is submitted that that letter is in substantially the same terms as the letter to Dr McKechnie of 30 March 2011. Therefore, the appellant had known for some considerable period of time the basis upon which the respondent worker brought her case, and the submission that was going to be made in respect of the clinical notes of Drs Affleck and Webb, and the report of Dr Hedge.
Ms Strickland further submits that the further report of Dr Affleck is not such that there is a high degree of probability that its admission would lead to a different outcome.
The appellant’s submissions in reply substantially repeat the submissions made above. However, the appellant further submitted that the report of Dr Hedge did not report that the worker was suffering from hypertension, merely that she was being monitored for hypertension.
The appellant conceded that the worker’s solicitors had written to it on 12 July 2011 setting out the basis of the worker’s claim. However, the appellant submitted it was unaware that a similar letter had been written to Dr McKechnie on 30 March 2011, which it did not discover until it was tendered at the arbitration. The appellant submitted that it believed the letter of 12 July 2011, seeking a review of the decision to decline the claim, “was an interpretation of Dr McKechnie’s opinion, whereas it was the basis for the doctor’s opinion”.

Discussion

No proper reason has been advanced to explain why a report clarifying Dr Affleck’s history could not have been obtained prior to the arbitration hearing. Chep was clearly on notice from the Application to Resolve a Dispute and from the letter of 12 July 2011 that the worker’s case was that the rupture of the aneurysm was due to an increase in blood pressure as a result of taking Mobic, which corresponded with her complaints, especially those to Dr Hedge, of severe headaches and hypertension.
I accept Ms Strickland’s submission that the admission of Dr Affleck’s further report is unlikely to alter the result. Dr McKechnie’s opinion, which the Arbitrator favoured, was based on the history of an elevation in blood pressure not from Dr Affleck, who failed to record the worker’s blood pressure readings during her consultations with him, but on the evidence of Dr Hedge, who stated that, between 11 October and 15 October 2010, the worker attended his surgery for severe headaches and hypertension follow-up.
I reject the submission that the appellant was in any way taken by surprise by the tender at the arbitration of the correspondence between the worker’s solicitors and Dr McKechnie dated 30 March 2011. The basis for the worker’s claim is fully and succinctly set out in Pt 4 of the Application to Resolve a Dispute, which is in the following terms:
“The applicant suffered a haemorrhage of an aneurysm caused by a sudden increased blood pressure brought about by the use of medications (Mobic) to treat her previously accepted work related elbow and neck injury.”
If there was any doubt as to the precise nature of Ms Strickland’s claim, it should have been readily apparent at least by 12 July 2011, when the worker’s solicitors again wrote to the appellant, clearly stating the basis for its case, as outlined above, and providing the evidence upon which it relied.
On 12 July 2011, Tuner Freeman Lawyers, acting on behalf of Ms Strickland, wrote to Brambles Industries Ltd in the following terms:
“RE: MICHELLE STRICKLAND
CLAIM NUMBER: N20110016
We refer to the above claim which we understand was disputed by way of your section 74 notice on 17 December 2010.
As you would be aware, our client sustained an [sic] subarachnoid haemorrhage on 17 November 2010.
Our client’s position is that, as treatment for her accepted left wrist injury, she was prescribed Mobic. As a result [of] the use of this medication our client suffered hypertension which ultimately led to the haemorrhage.
As a result of this injury our client has been unfit for work since 17 November 2010. We are instructed to make a claim for payment of weekly compensation from this date to date and ongoing.
In support of this claim we enclose the following medical reports:
1.     Report of Dr Simon McKechnie, Neurosurgeon, dated 6 July 2011, 7 March 2011, and 18 January 2011;
2.     Certificate of Dr R Hedge date 27 January 2011;
3.     Extracts from the clinical file of Dr John Affleck.
We also enclose a copy of our client’s leave records which correspond to the dates which she experienced discomfort caused by her condition.
You will see from the clinical file of Dr Affleck that our client was first prescribed Mobic following consultations with the doctor on 6 August 2010. Prescription was confirmed on 19 August 2010 and again on 7 September 2010.
By 7 October 2010 there is reference in consultation with Dr Malcolm Webb (of the same medical practice) of hypertension (HT – Avapro). There is a trial cessation of Mobic following that consultation.
Further consultations with Dr Webb on 28 October 2010 revealed normal blood pressure (BP 128 over 80). In that same consultation [M]obic was resumed. You will see from the consultation of 4 November 2010, Mobic was continuing to be taken and continued to be prescribed.
You will see in the clinical notes that there are WorkCover medical certificates which confirm the prescription of Mobic. We have also enclosed a notation from Dr Hedge which confirms our client attended his surgery complaining of severe headache and hypertension on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010.
You will see from these dates our client’s complaints of headaches and increased blood pressure correspond with commencement of her use of Mobic in August and up until the medication was ceased following consultation in October 2010.
We submit that this is clear evidence that the resumption of Mobic has corresponded with the aneurysm on 17 November 2010 and we say therefore there is a causal link between our client’s injury and subsequent incapacity for employment since 17 November 2010 and her accepted wrist injury.
We request you urgently review your decision and attend to back payment of weekly compensation and commence payments immediately.
We look forward to hearing from you within 14 days. We note a copy of this correspondence has been forwarded to Mr Steve Harris of Moray & Agnew Lawyers.
Yours faithfully …”
I also reject the submission that Dr McKechnie misinterpreted Dr Hedge’s report and the clinical notes. Dr McKechnie’s further opinion is based upon an acceptance of evidence of hypertension prior to the rupture of the aneurysm. The unchallenged evidence of the worker is that, following the cessation of the Mobic on 7 October 2010, she continued to suffer increased blood pressure and headaches for a few more days, but eventually the blood pressure returned to normal. Those complaints correspond with the evidence recorded by Dr Hedge that the worker was being seen by him for severe headaches and hypertension follow-up between 11 and 15 October 2010. Furthermore, if there was any basis to challenge the opinion of Dr McKechnie due to any alleged misinterpretation of the evidence, that should have been done at the arbitration.
Extracts from Dr Affleck’s notes were attached to the Application to Resolve a Dispute. The full clinical record of Dr Affleck’s treatment of the worker was also produced to the Commission pursuant to a Direction for Production, issued at the request of the appellants then solicitors on 21 November 2011, and was available for inspection by the parties following production of documents from 19 December 2011 (seven days after the return date). Therefore, the appellant was or should have been aware of Dr Affleck’s clinical examination and findings well before the arbitration hearing. If his notes required any clarification or elucidation, that should have been attended to before the hearing, not in response to an unfavourable finding.
The discretion to admit fresh evidence on appeal is not an opportunity to address a weakness in the appellant’s original case as revealed by the primary decision-maker (Marks v Ricegrowers’ Co-operative Ltd [2006] NSWWCCPD 46 at [18]). It has been said on numerous occasions in Presidential decisions that an arbitration is not a trial run where the parties await the result and then seek to tender on appeal evidence that could and should have been tendered at the arbitration (NSW Police Force v Kearns [2008] NSWWCCPD 29 at [26]). For these reasons, the submission that the admission of the report of Dr Affleck is to “respond” to the Arbitrator’s findings is to be rejected. Dr Affleck’s report adds nothing to the evidence already before the Arbitrator and makes no difference to the result.
For these reasons, I am not satisfied that the exclusion of the further evidence of Dr Affleck will cause substantial injustice to the appellant. The application to admit as fresh evidence the report of Dr Affleck of 5 March 2012 is rejected.

Report of Professor Kiernan 8 March 2012

Professor Kiernan’s first report dealt with probable causes of the aneurysm itself. He opined that they are generally constitutional in nature. He thought it was of significance that Ms Strickland’s sister had also suffered from an intercranial aneurysm. He said:
“In terms of aneurysmal rupture and subarachnoid haemorrhage, the key issues relate to vascular risk factors, particularly hypertension and smoking. It is noted that Ms Strickland has a 20 pack year history of smoking and continues to smoke. In addition there is a history of hypertension dating back to 2005.”
He opined that, on the balance of probabilities, the consumption of Mobic had not been responsible for the aneurysm. He noted that Mobic had been commenced two months prior to the haemorrhage and that a 2 cm aneurysm would have been present for an extended period of years prior to that. Professor Kiernan did not address the question of whether or not the consumption of Mobic was a factor in the aneurysmal haemorrhage which was the basis of the worker’s claim.
The appellant seeks leave to rely on a further report of Professor Kiernan dated 8 March 2012, which is directed to the Professor’s opinion on the cause of the rupture of the cerebral aneurysm, as opposed to his earlier expressed opinion as to the cause of the aneurysm itself.
Professor Kiernan’s report of 8 March 2012 was in the following terms:
“Thank you for your letter of 6 March 2012 and your request for a supplementary report.
To answer the specific question in your letter:
‘We now seek your opinion as to whether, on the balance of probability, the consumption of Mobic was the cause of the rupture of the aneurysm which, it has been accepted, occurred on 16 November 2010 in the circumstances described by the worker to you.’
On the balance of probability the consumption of Mobic was not the cause of the rupture of the aneurysm.
Should you have any questions related to this report please do not hesitate to contact me.”

Submissions

The appellant submits that the reason the report was not requested previously is because the appellant was of the view that Professor Kiernan’s opinion was in fact directed to the cause of the rupture of the aneurysm, not, as the Arbitrator found, the cause of the aneurysm itself.
The appellant submits that it was the letter from the worker’s solicitors to Dr McKechnie of 30 March 2011, tendered at the arbitration hearing, that caused it to appreciate that Dr McKechnie’s opinion was based upon a misinterpretation of Dr Hedge’s report and the clinical notes of Drs Affleck and Webb. It is submitted that a report is necessary to clarify the opinion of Professor Kiernan and its exclusion would result in a substantial injustice to the appellant.
Ms Strickland submits that the subsequent report of Professor Kiernan is merely an attempt to rectify a deficiency in the evidence which was always apparent and could have been dealt with at any time prior to the arbitration.
Further, she submits that, in any event, the report is not evidence the admission of which would result in a high degree of probability that there would be a different outcome. This is because Professor Kiernan addressed the wrong test by considering whether the consumption of the Mobic was “the underlined [sic] cause” of the rupture of the aneurysm, not whether its consumption was “an underlined [sic] cause” of the rupture of the aneurysm. Further, it is submitted that, as its highest, the supplementary report of Professor Kiernan is merely more evidence, rather than fresh evidence, and it does not in any way attempt to meet the reasoning in the opinion of Dr McKechnie.

Discussion

Dr McKechnie’s report of 6 July 2011, expressing his final view as to the relationship between the consumption of Mobic and the rupture of the aneurysm, was served on the appellant on 12 July 2011. Therefore, the report was in the appellant’s hands for more than six months before the arbitration hearing. For the reasons identified above, the issue between the parties was very clearly set out, not only in the Application to Resolve a Dispute, but also in the subsequent correspondence and supporting documentation. I do not accept the submission that there was any basis for the appellant to misinterpret the medical evidence tendered in support of the worker’s case.
The appellant had every opportunity to obtain evidence to meet the worker’s case. It was not misled in any way. It chose to qualify Professor Kiernan and to tender his report of 13 August 2011. It now seeks to present a different case on appeal. That evidence was readily available to it prior to the arbitration and it has advanced no valid reason why it was not obtained. Effectively, the appellant is seeking to conduct a new hearing, something that is not permitted in a s 352 appeal. A party is bound by the conduct of its case at the arbitration (Metwally v University of Wollongong (1985) 68 ALR 68).
Moreover, the report that the appellant now seeks to have admitted as fresh evidence is a bare opinion concerned with the consumption of Mobic and its relationship to the rupture of the aneurysm. Professor Kiernan simply stated, in answer to an express question directed to this issue:
“On the balance of probability, the consumption of Mobic was not the cause of the rupture of the aneurysm”
Professor Kiernan has made no attempt to explain the reasons for his opinion that the consumption of Mobic, on the balance of probabilities, played no part in the aneurysmal haemorrhage. In particular, Professor Kiernan identified in his first report that hypertension was a risk factor for subarachnoid haemorrhage, yet he did not comment at all (in his second report) on the significance of the symptoms of hypertension suffered by the worker in the weeks leading up to the haemorrhage or any causal connection between those symptoms and the consumption of Mobic.
In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, McColl JA (Mason P and Beazley JA agreeing) said at [84]:
“It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it: see Cross on Evidence at [29065]; R v Jenkins; Ex parte Morrison (No 2) [1949] VLR 277 at 303; R v Hally [1962] Qd R 214; Steffen v Ruban [1966] 2 NSWR 622; Perry v R (1990) 49 A Crim R 243 and, of course, the principal authorities examined by Heydon JA in Makita [(Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705] (at 729–741 [59]–[82]).”
See also South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at 130.
Professor Kiernan’s opinion in his second medical report is a bare conclusion the basis for which has not been explained and it is entitled to little if any weight. That deficiency further undermines the weight to be attached to it.
There is a further deficiency in Professor Kiernan’s report. The issue in dispute in not whether the consumption of Mobic was the cause of the rupture, as Professor Kiernan has suggested. The issue is whether the rupture resulted from the accepted work injury. In other words, is there an unbroken chain of events between the injury and the rupture (Kooragang)?
If the worker took Mobic because of the symptoms caused by her accepted work injury, and if Mobic made a material contribution to the rupture, causation is established (March v E & MH Stramare Pty Ltd[1991] HCA 12; 171 CLR 506 Mason CJ at 509). Professor Kiernan’s new report has not addressed the correct test of causation and is therefore of no probative value.
For the reasons given, even if Professor Kiernan’s supplementary report were to be admitted, little weight could be attached to it, and therefore it could not be said that there would be a high degree of probability that its admission would result in a different outcome.
It follows that I do not accept the exclusion of Professor Kiernan’s report on appeal will result in a substantial injustice to the appellant.

For these reasons, I reject the application to admit the report of Professor Kiernan of 8 March 2012.

Clinical notes of Dr Hedge

The appellant seeks to tender as fresh evidence handwritten extracts from the clinical notes of Dr Hedge. The notes span the period of his treatment of the worker between 12 February 2010 and 2 December 2010. The entries are handwritten and difficult to decipher. However, in so far as they record the worker’s history of elevated blood pressure, they show:
On 12 February 2010, was seen by Dr Hedge, at which point she had an elevated blood pressure of 150/95.
On 29 March 2010, her blood pressure was recorded as 160/95.
On 30 March 2010, no blood pressure reading is recorded.
On 31 March 2010, her blood pressure was recorded as 160/95.
There are no entries between March 2010 and August 2010.
On 26 August 2010, Dr Hedge recorded the worker’s blood pressure at 150/125.
On 11 October 2010, he recorded headache and a blood pressure of 150/105.
On 12 October 2010, Dr Hedge saw the worker for a dental condition, headaches and for a whooping cough vaccine. He did not record her blood pressure.
On 15 October 2010, Dr Hedge recorded the worker’s blood pressure at 150/110.
The entries on 2 and 4 December 2010 postdate the aneurysmal haemorrhage.

Submissions

The appellant submits that the admission of Dr Hedge’s clinical notes is essential to clarify that, during the relevant period, there was no sudden elevation of blood pressure which can be related to the ingestion of Mobic. It submitted that the notes would demonstrate that Ms Strickland’s blood pressure was elevated before she commenced taking Mobic.
Chep submits that there was no prejudice to the worker. It submits that the principles discussed in CDJ are not apposite because they concern the prejudice arising from circumstances where the respondent is subjected to the inconvenience and worry of a new trial. The appellant submits that s 352(5) of the 1998 Act empowers a Presidential member to correct the error without requiring a rehearing, and that that is the course that should be adopted in this matter.
It is submitted by the appellant that, upon the basis of the claim presented by the respondent worker in the Application to Resolve a Dispute, the evidence could not have been obtained with reasonable diligence for use in the arbitration. It again submits that it was not until the tender of the correspondence between Turner Freeman and Dr McKechnie of 30 March 2011 that it appreciated that Dr McKechnie had misinterpreted Dr Hedge’s report. It submits that the admission of the clinical notes is necessary to clarify Dr Hedge’s report and to show that the worker complained of headaches long before commencing to take Mobic.
Chep submits that, as the notes had not been produced by the worker’s solicitors, the appellant was not able to conceive of their significance and, accordingly, had no opportunity to obtain them until after the arbitration had been completed. It submits that the exclusion of the evidence would result in substantial injustice to the appellant.
The appellant further submits that the fresh evidence is such that there would be a high degree of probability of a different result, that the evidence is credible and that, in the circumstances of this case, it is just to admit it.
Ms Strickland submits that no reason has been provided as to why the clinical notes could not have been obtained for use at the arbitration.
Ms Strickland further submitted that it was open to the appellant to seek leave to issue a direction for production of the clinical notes, and that that was never done. This submission is incorrect. In fact, an application was made by the appellant for a direction for production to be issued to Dr Hedge, and a direction was in fact issued by the Commission on 21 November, at the request of the appellant, addressed to Dr Hedge and requiring production of his clinical notes.
Ms Strickland submits that the clinical notes for the four consultations referred to by Dr Hedge in his report show an elevation of blood pressure on each occasion. Those findings are consistent with Dr Hedge’s report and the conclusion reached by Dr McKechnie.
Ms Strickland submits that the admission of any late material at this stage would cause prejudice to her. To the extent that any of the material requires explanation, she has not had the opportunity of obtaining evidence in reply.

Discussion

As I have already indicated, the significance of Dr Hedge’s clinical notes was obvious to the appellant well before the arbitration hearing. At the telephone conference that was conducted on 21 November 2011, at the request of the appellant, the Arbitrator gave leave for directions for production to be issued to Drs Rajaratnam, Karunaratne, Affleck, Khan, Hedge and McKechnie. In response to the leave given, the appellant lodged with the Commission on 21 November 2011 directions for the production of documents to the aforementioned doctors. The Commission issued the directions on 22 November 2011.
No explanation has been provided by the appellant as to whether the directions for production were served, whether any documents were produced in response to the direction, or whether any steps were taken to ensure compliance with the direction for production. In fact, no valid reason has been advanced why the clinical notes were not obtained prior to the arbitration hearing.
The submission put by the appellant in support of the application for fresh evidence is to demonstrate that the worker suffered from elevated blood pressure before she commenced taking Mobic. That is a different case to the case presented to the Arbitrator. The case argued before the Arbitrator was that there is no evidence of a sudden elevation of blood pressure, related to taking Mobic, to support Dr McKechnie’s opinion.
I do not accept the submission that, because Presidential members of the Commission have the power to re-determine matters on appeal, a further hearing would be unnecessary. In the circumstances of this case, if the fresh evidence was admitted, a further hearing would be inevitable.
It is not disputed that the Ms Strickland suffered pre-existing hypertension. Dr Hedge’s clinical notes demonstrate that Ms Strickland suffered elevated blood pressure in the early part of 2010.They also confirm the worker’s contention that her blood pressure was elevated on 26 August 2010 and in the period from 11 to 15 October 2010, which is consistent with Dr Hedge’s report of 27 January 2011 (see [31] above). Therefore, rather than advancing the appellant’s case, the notes are consistent with the worker’s case.
The test for the admission of the notes is not one of prejudice, but whether the exclusion of the evidence would result in a substantial injustice. That is, would the admission of the notes at the arbitration have led to a different result? That question must be answered in the negative. The notes add nothing to the evidence already before the Arbitrator. That evidence was that Ms Strickland was known to suffer from pre-existing hypertension and that, on 26 August 2010 and during the period 11 to 15 October, she attended Dr Hedge for severe headaches and hypertension follow-up. Therefore, there is no injustice in excluding the admission of the notes on appeal.

SUBMISSIONS AND FINDINGS

Ground one: did the Arbitrator err in finding as a fact that, when the worker consulted Dr Malcolm Webb on 7 October 2010, he recorded that she was experiencing a migraine?

The appellant submits that the injury is consistent with a history of migraines. The appellant submits that the clinical notes of Drs Affleck and Webb do not record complaints of headache.
Ms Strickland accepts that the notation with respect to migraines appears under the heading “PAST Hx” (presumed to mean “Past History”). However, Ms Strickland also submits that it is her evidence that she was complaining to Dr Webb of symptoms of increased hypertension and headaches in early October 2010.
Whether the reference to “migraines” in the history obtained is a reference to a previous history of migraines or to current complaints of migraines is ambiguous. Seen in isolation, it could be accepted that the reference to migraines is a reference to a medical history of migraine. However, the Arbitrator noted at [6] of the Reasons that the worker had complained to Dr Hedge and to Dr Webb in early October of hypertension and headaches. That evidence was not challenged.
Given the worker’s unchallenged evidence, it was open to the Arbitrator on the evidence to interpret the notes by concluding that they referred to symptoms of migraine at the time of the consultation with Dr Webb on 7 October 2010.
I reject the appellant’s submission that the notes give rise to a compelling (if not irresistible) inference that the absence of recorded complaints of migraine or hypertension means that there were no such complaints made. It is clear from the entry of 7 October 2010 that Dr Webb was focused on the worker’s orthopaedic injuries and it is therefore unsurprising that he failed to record the worker’s blood pressure or details of any neurological complaints. It follows that this ground of appeal fails.

Ground two: did the Arbitrator err in drawing inferences that Dr Webb was sufficiently concerned to cease the Mobic, that he monitored her blood pressure and, once it had normalised, he resumed prescribing the Mobic?

The appellant submits that there is no evidence whatsoever that any doctor took a reading of abnormal blood pressure between August and December 2010. Dr Webb did not take her blood pressure on 7 October 2010. Chep submits that it can be assumed that Dr Hedge did take her blood pressure during the four visits when he attended to “hypertension follow-up”. Dr Hedge does not report that there was any abnormality in her blood pressure during those four visits. Even if Dr Hedge did take her blood pressure, Dr Webb was unaware of the reading.
The appellant submits that the correct inference to be drawn from Dr Webb’s notes is that the patient no longer thought she needed to take Mobic, and it was agreed that there would be a trial cessation of Mobic.
Dr Webb did take the worker’s blood pressure on 28 October 2010, when it was normal. Therefore, it is, in the appellant’s submission, erroneous for the Arbitrator to draw the inference “that once it had normalised, he resumed prescribing the Mobic”. There is no record of the blood pressure having been abnormal and therefore it is erroneous to say that he was checking to see if the blood pressure had normalised. The resumption of Mobic was in the context of the patient complaining of arm pain that evening.
The appellant submits that, in drawing these inferences, the Arbitrator made a material error of fact, or arrived at a result that was so unreasonable or unjust as to suggest that such an event occurred. Even though the error in question did not explicitly appear on the face of the reasoning as discussed in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], the available inference in the opposite sense to that chosen by the Arbitrator is so preponderant that the Arbitrator’s decision is wrong within the meaning of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506.
Ms Strickland submits that the finding by the Arbitrator was that Dr Webb monitored her blood pressure before prescribing Mobic. This was an inference that was clearly available to the Arbitrator. When she consulted Dr Webb on 28 October 2010, he recorded her blood pressure reading before resuming the prescription of Mobic. That blood pressure reading was normal.
Ms Strickland submits that it is clear that Dr Webb thought that her blood pressure was an issue that needed to be checked before prescribing further Mobic. She submits that, given that Dr Webb was aware of the history of hypertension, there was no error in describing the blood pressure as “normalised”. She submits that, in any event, the real issue is that the blood pressure was normal at that stage prior to the resumption of Mobic and, as pointed out by Dr McKechnie, raised blood pressure is a known side effect of Mobic. The medication is also an anti-inflammatory which causes platelet dysfunction and mildly increased bleeding tendencies. Both of those were factors that contributed to the rupture of the aneurysm.
In reply, the appellant repeats that, so far as Drs Affleck and Webb were concerned, there was no evidence of elevated blood pressure, and therefore no evidence to support the inference drawn by the Arbitrator.
The appellant submits that the statement contained in the Notice of Opposition concerning the medication’s anti-inflammatory and platelet dysfunction characteristics is not found anywhere in the evidence before the Arbitrator, and therefore, to submit that those factors contributed to the rupture of the aneurysm, is to introduce a factor which was not before the Arbitrator for consideration.
It is submitted that the only relevant consideration properly before the Arbitrator was whether there was any evidence of “a significant and sudden rise in blood pressure” as referred to in Dr McKechnie’s report of 7 March 2011. The evidence does not record such a sudden and significant rise in blood pressure.

Discussion

The appellant’s statement that the evidence does not refer to Mobic as having anti-inflammatory and platelet dysfunction characteristics is incorrect. Dr McKechnie referred to Mobic as having those characteristics in his report of 6 July 2011 (Application to Resolve a Dispute page 8). It is also incorrect to assert that the only relevant consideration properly before the Arbitrator was whether there was any evidence of “a significant and sudden rise in her blood pressure”. As the Arbitrator correctly articulated at [18] of the Reasons, the issue before her was whether there was a causal connection between the rupture of the aneurysm and the consumption of Mobic.
The sequence of events leading to the cessation of Mobic seems to have been that, in discussion with Dr Webb, the worker believed that, in terms of controlling the symptoms from her orthopaedic injuries, she no longer needed the medication. That would be consistent with the entry by Dr Webb in the notes on 7 October:
“Still taking Mobic: no longer thinks she needs it”.
However, it is apparent that, during the period between 11 October and 15 October 2010, Ms Strickland was complaining to her general practitioner, Dr Hedge, of headaches and hypertension. The symptoms in that period must have been sufficiently severe to warrant repeat visits within a few days.
The inference that Dr Webb was concerned to ensure the worker did not suffer from elevated blood pressure before prescribing a resumption of Mobic may be drawn from the fact he took her blood pressure on 28 October 2010 and obtained a normal blood pressure reading (128/80) before re-prescribing Mobic, which Ms Strickland continued to take until the haemorrhage on 17 November 2010.
It was therefore, in my view, an error to draw the inference that Dr Webb advised a cessation of the Mobic because of his concern over the worker’s blood pressure. However, it was not an error to draw the inference that Dr Webb needed to satisfy himself that the worker was not suffering from elevated blood pressure before prescribing the resumption of Mobic.

Ground three: did the Arbitrator err in drawing the inferences that Ms Strickland’s blood pressure was elevated and that was the reason for cessation of Mobic?

For the reasons given in dealing with the second alleged error, I accept the appellant’s submission that the Arbitrator erred in inferring that the reason for the cessation of Mobic was because of elevated blood pressure. However, consistent with the worker’s evidence and the report of Dr Hedge, it is reasonable to infer that the worker was suffering from an elevation in blood pressure on 26 August 2010, and between 11 and 15 October 2010.

Ground four: did the Arbitrator err in finding that there was no other reason recorded for the cessation of Mobic?

The appellant’s submission is that the finding is not sustainable. The clinical notes plainly record that Mobic was ceased because the patient reported an improvement and no longer thought she needed to take Mobic. That is the only reason contained in the notes for its cessation. The appellant submits that this is supported by the notation that Mobic was to be resumed if there was an increase in pain, not if there was a reduction in her blood pressure.
The worker submits that the Arbitrator’s finding is supported by reference in the notes to hypertension migraines on 7 October 2010, combined with the blood pressure reading on 28 October 2010, to form a proper basis from which the Arbitrator has drawn the inference she has.
Ms Strickland concedes that it is possible that two inferences may be drawn; that contended by the appellant, namely, that she no longer needed it, or, alternatively, that Mobic was ceased due to an elevation in blood pressure. The fact that Dr Webb checked Ms Strickland’s blood pressure before resuming Mobic, and that the reading was normal, supports an inference that the cessation of Mobic led to a drop in blood pressure.
I accept the appellant’s submission that the Arbitrator’s finding at [27] of the Reasons that there was no other recorded reason for the cessation of Mobic cannot be sustained. While the inference drawn by the Arbitrator may have been available to her, there is another reason for the cessation of Mobic recorded in the notes, and that is that by Dr Webb on 7 October 2010, wherein Dr Webb reports improvement in the worker’s condition, particularly after a four-day long weekend, noting that the worker no longer considered she needed to take Mobic. It follows that this ground of appeal is sustained.

Ground five: did the Arbitrator give adequate reasons for drawing the inferences she did?

Section 294 of the 1998 Act provides that, if a dispute is determined by the Commission, the Commission must as soon as practicable after the determination issue the parties with a Certificate of Determination supported by a brief Statement of Reasons for the determination.
Rule 15.6(1) of the Workers Compensation Commission Rules 2011 provides that the Commission’s reasons are to include:
(a)     The Commission’s finding on material questions of fact referring to the evidence or other material on which those findings were based, and
(b)     The Commission’s understanding of the applicable law, and
(c)     The reasoning process that led the Commission to the conclusions it made.
Rule 15.6(2) provides:
“Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”
The appellant submits that, at [27] of the Reasons, the Arbitrator said, “There is no record of raised blood pressure”. However, she proceeded to draw inferences which could only be based on an assumption that there was an increase in blood pressure. The appellant submits that the Arbitrator has failed to adequately explain the basis upon which the inferences are drawn, when there is an absence of evidence to support the underlying thesis that elevated blood pressure was the reason for the cessation of Mobic.
The Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430). While the Arbitrator accepted that there was no record of raised blood pressure, the Arbitrator gave the following reasons for drawing the inferences she did:
(a)     Dr McKechnie’s initial opinion that a causal connection between the haemorrhage of the aneurysm and the worker’s employment could exist if the consumption of Mobic caused a significant and sudden rise in her blood pressure which precipitated the rupture of the aneurysm;
(b)     the report from the worker’s general practitioner, Dr Hedge, confirmed attendances on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010, at which times Ms Strickland complained of headaches and hypertension;
(c)     Dr McKechnie’s expert opinion that, although the aneurysm could have ruptured at any time, he accepted that the rupture on 16 November 2010 was precipitated by the consumption of Mobic because elevated blood pressure is a known side effect of taking Mobic and the worker had attended Dr Hedge for headache and hypertension follow-up on 26 August 2010 and 11, 12 and 15 October 2010;
(d)     the appellant’s expert evidence addressed itself to the question of the cause of the aneurysm, not its rupture, and, for that reason, was accorded little weight.

In explaining the reasons for her decision in that way, the Arbitrator not only satisfied the statutory requirements, but expressed her opinion in clear and concise terms. It follows that I reject this ground of appeal.

Ground six: did the Arbitrator err in finding that the consumption of Mobic caused the rupture of the congenital aneurysm?

The appellant submits that Dr McKechnie’s report of 6 July 2011 is fatally flawed because of its reliance on the correspondence from the worker’s solicitor dated 30 March 2011, which the appellant again submits contains misleading and erroneous interpretations of the clinical notes and medical reports. The appellant submits that the report of Dr McKechnie of 6 July 2011 “must be disregarded” and submits that the opinion he expressed in his report of 7 March 2011 should be substituted.
The appellant’s submission is that Dr McKechnie’s original view was that there would only be a possible relationship between her employment and her condition if the Mobic caused a significant and sudden rise in her blood pressure. It submits that the Arbitrator found as a matter of fact that the worker was taking Mobic continuously from 19 August 2010, except for the period between 7 and 28 October 2010, when it was ceased because the pain had subsided. She resumed taking Mobic on 28 October 2010. The appellant’s submission is that, if the consumption of Mobic was to have caused a “significant and sudden rise in her blood pressure”, logic dictates that this would have occurred shortly after the resumption of taking Mobic, not some 18 days later, when the rupture of the aneurysm occurred. In the absence of any evidence of a rise in the worker’s blood pressure, leaving aside the question of any significant and sudden rise in her blood pressure, the worker’s case must fail in light of Dr McKechnie’s opinion.
Ms Strickland submits that Dr McKechnie makes it clear in his report that he had regard to the clinical notes and reports that were sent to him before giving his further opinion. In expressing his opinion, Dr McKechnie clearly referred to the supporting documentation and, in the absence of any contrary opinion as to the causation of the rupture of the aneurysm, as opposed to the aneurysm itself, the Arbitrator did not err by accepting Dr McKechnie’s opinions.

Discussion

I reject the submission that Dr McKechnie’s report of 6 July 2011 is “fatally flawed” by reason of its reliance on the correspondence from Turner Freeman dated 30 March 2011. For the reasons already discussed, it is clear that Dr McKechnie’s opinion was based on his review of the documentation that was forwarded to him. That material included confirmation that the worker had been attending Dr Hedge for headache and hypertension review on four occasions between 26 August and 15 October 2010.
Dr McKechnie was initially cautious in accepting any causal relationship between the rupture of the aneurysm and the consumption of Mobic. In his first report, he considered the connection could be made only if there was evidence of a sudden and significant rise in blood pressure. While it is perhaps unfortunate that Dr Hedge did not include in his report details of the clinical findings at his consultations, the report of severe headaches and hypertension was a factor Dr McKechnie was entitled to consider in reaching his conclusion on causation. Dr McKechnie’s evidence was the only expert evidence before the Arbitrator on this issue.
There is no evidence whatsoever to support the appellant’s contention that, if the consumption of Mobic was the cause of a significant and sudden rise in blood pressure, the rupture would have occurred shortly after the resumption of taking Mobic, not when it in fact occurred some 18 days later. That is a matter of pure speculation. That proposition has not been tested in any of the medical evidence and it was not raised at the arbitration.
For these reasons, I reject the submission that the Arbitrator erred in finding that the consumption of Mobic caused the rupture of the congenital aneurysm.

Ground seven: did the Arbitrator err in finding that the report of Dr Hedge states that the worker complained of hypertension at her visits to him on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010?

The appellant submits that the report of Dr Hedge merely records that the worker attended because of headaches. It submits, “It records that Dr Hedge ‘followed up’ hypertension. It does not record that on any occasion she was found to have elevated blood pressure”.
Ms Strickland submits that Dr Hedge’s report is consistent with the worker suffering from hypertension at the consultations referred to. Further, she submits that it is her evidence that she complained to Dr Hedge of experiencing increased hypertension and headaches. She submits that it should be accepted on the evidence that she did complain on the occasions referred to of headaches and hypertension.
The Arbitrator found at [29] of the Reasons that, at the consultations referred to above, Ms Strickland did complain of headaches and hypertension. That finding of fact was not only open to her on the evidence, but it was the only finding that could be made. It is the worker’s unchallenged evidence that she made complaints of severe headaches and hypertension on those occasions. Her complaints are recorded in the report of Dr Hedge of 27 January 2011.
It can reasonably be inferred from the evidence that Dr Hedge must have been sufficiently concerned about the worker’s condition that he saw her several times within a few days in October 2010. That pattern is inconsistent with the appellant’s submission that the doctor was merely monitoring Ms Strickland, absent any complaints of headaches and hypertension. For these reasons, I reject this ground of appeal.

Ground eight: did the Arbitrator err in finding that Professor Kiernan only expressed a view regarding whether Mobic caused the aneurysm and not whether the Mobic caused its rupture?

The appellant submits that Professor Kiernan had been provided with the relevant clinical notes. He was aware that Ms Strickland had been taking Mobic during the months prior to the injury in November 2010. The fact that he does not include Mobic as one of the “probable causes” of the rupture compellingly invites the inference that it was his opinion that the Mobic was not a contributing factor.
Ms Strickland submits that the opinion expressed by Professor Kiernan in his report of 13 August 2011 is clear. He opined that the consumption of Mobic had not been responsible for the aneurysm.
At [30] of her Reasons, the Arbitrator found as a fact that Professor Kiernan only expressed a view regarding whether the consumption of Mobic caused the aneurysm and did not turn his mind to whether or not the consumption of Mobic caused its rupture.
It is impossible to infer that Professor Kiernan was turning his mind to the question of rupture and not the cause of the aneurysm. The particular question that he was asked to address at page 5 of his report of 13 August 2011 (Reply page 5) was:
“In particular, whether, on the balance of probability, the consumption of Mobic would have been responsible for the aneurysm.”
Professor Kiernan clearly expressed the view that, on the balance of probabilities, the consumption of Mobic was not a factor in the cause of the aneurysm. He noted that the aneurysm measured 2 cm and would have been present for an extended period of years before its rupture.
I reject the submission that there is a compelling inference that Professor Kiernan was addressing himself to the question of the rupture. There is no basis for that submission at all. There is no error in the Arbitrator’s finding of fact. It is the only finding that was available to her on the evidence presented at the arbitration.

Ground nine: did the Arbitrator err in finding that the appellant had discharged the onus of proof?

The appellant accepts that the test for establishing causation is that extracted from the judgment of Kirby J in Kooragang as set out at [13] of the Arbitrator’s reasons:
“In each case, the question whether the incapacity or death “results from” the impugned work injury … is a question of fact to be determined on the basis of the evidence, including where applicable, expert opinion.”
The appellant contends that its submissions demonstrate that the evidence was inadequate to support the Arbitrator’s findings of fact and the inferences drawn. The experts’ opinions, properly analysed, do not support the respondent on the issue of causation and in fact are against the respondent.
Ms Strickland submits that, from an examination of the evidence, the conclusions reached by the Arbitrator were the only ones available to her and that the appellant has not demonstrated any error of law or fact-finding to support the appeal.

Discussion

The appellant has succeeded in establishing that the Arbitrator erred in drawing the inference that Dr Webb was sufficiently concerned about the worker’s elevated blood pressure that it caused him to recommend that the worker cease taking Mobic. The Arbitrator also erred in finding that there was no other reason recorded for the cessation of the Mobic.
An appeal under s 352 of the 1998 Act is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion and the correction of such error (s 352(6)).
The only issue before the Arbitrator was whether there was a causal connection between the rupture of the aneurysm and the consumption of Mobic, prescribed for the treatment of the worker’s accepted work-related injury.
As I have noted at [48], the Arbitrator approached that issue on the basis that the worker must establish that the condition, that is, the haemorrhage of the aneurysm, on the balance of probabilities, “results from” the ingestion of Mobic.
The only expert evidence before the Arbitrator directed to the causation of the rupture or, more correctly, the haemorrhage from the aneurysm, was that of Dr McKechnie. Professor Kiernan had addressed an entirely separate question, that is, whether the aneurysm had been caused by the consumption of Mobic. It was never part of the worker’s case that the aneurysm was caused by the consumption of Mobic. It was clear from the application itself and from the correspondence between the parties that the issue before the Arbitrator was whether the consumption of Mobic caused the congenital aneurysm to haemorrhage.
Dr McKechnie’s initial approach was conservative. He did not rush to opine that the consumption of Mobic was a causative factor in the haemorrhage. He approached the issue by accepting that haemorrhage can be caused by elevated blood pressure and that Mobic has a known side effect of causing elevated blood pressure. Ultimately, he formed the opinion, based on a documented history of the worker suffering hypertension prior to the haemorrhage that the consumption of Mobic was a contributory factor to the haemorrhage of the aneurysm.
The Arbitrator accepted Dr McKechnie’s opinion. The Arbitrator placed little weight on Professor Keirnan’s evidence because, as I have indicated, it addressed a different issue. This approach by the Arbitrator does not involve error.
The issues upon which the appellant has succeeded on this appeal concern the reasons for a trial cessation of Mobic in the period 7 October to 28 October 2010. The Arbitrator wrongly inferred that that was because of an elevation in blood pressure, whereas, in fact, the evidence establishes that it was more likely ceased because the worker’s orthopaedic condition had improved to the point where she felt she no longer needed it.
The fact remains, however, that Dr Webb, following a normal blood pressure reading taken on 28 October 2010, recommended the resumption of Mobic. The worker accepted that advice and recommenced taking Mobic.
The Arbitrator’s error in her findings concerning the reasons for the trial cessation of Mobic makes no difference to the outcome of this appeal. It is immaterial that the trial cessation of Mobic was due either to an improvement of the worker’s orthopaedic condition or because of a concern over an elevation of blood pressure. The real issue is whether the Mobic caused an elevation of blood pressure which, in turn, was a causative factor in haemorrhage of the aneurysm.
For the reasons I have already given, on the evidence presented before the Arbitrator, there was only one conclusion that the Arbitrator could reach, and that was the conclusion she did in fact reach, namely, that the consumption of Mobic was causative in precipitating the rupture on 16 November 2010.
Therefore, in my view, the identified errors could not possibly have affected the outcome of the appeal.

CONCLUSION

The Arbitrator did not err in accepting that the worker had satisfied the onus of proof by establishing that the consumption of Mobic, prescribed for the treatment of her accepted work-related injuries, caused an elevation in her blood pressure which precipitated the haemorrhage of a cerebral aneurysm.
The appellant identified errors by the Arbitrator in inferring that the trial cessation of Mobic prior to the haemorrhage was due to an elevation in the worker’s blood pressure. However, the Arbitrator’s errors could not possibly have affected the outcome of the appeal because the essential issue was whether the consumption of the Mobic was causally related to the haemorrhage of the aneurysm. Whether the trial cessation of Mobic on 7 October 2010 was due to elevated blood pressure or other causes is immaterial to the resolution of that question. It follows that the Arbitrator’s decision should be confirmed.

DECISION

The Arbitrator’s determination of 17 February 2012 is confirmed.

COSTS

Notwithstanding that the appellant has been partially successful on the appeal, the issues upon which it succeeded were not ultimately determinative of the appeal and, in the circumstances, I consider it appropriate that the appellant pay the respondent worker’s costs of the appeal.

Judge Keating

President
24 May 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE