City of Ryde v Clarke - [2023] NSWPICPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	City of Ryde v Clarke [2023] NSWPICPD 22
APPELLANT:	City of Ryde
RESPONDENT:	Simon Clarke
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-W1137/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	26 April 2023
ORDERS MADE ON APPEAL:	1. Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 1 June 2022 is revoked. 3. The matter is remitted to a different non-Presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – the duty to give reasons, application of Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Kemp & Co Lawyers
Respondent:
Mr L Morgan, counsel
Martin Bell & Co Solicitors
DECISION UNDER APPEAL
MEMBER:	Mr C Wood
DATE OF Member’s DECISION:	1 June 2022

INTRODUCTION AND BACKGROUND

Simon Clarke (the respondent/worker) was employed by the City of Ryde (the appellant/employer) from 2015 as a leading hand landscaper.[1] On 15 December 2016 he was working with his team, concreting a path, when it started to rain. The respondent was helping to move temporary fencing so that a tarpaulin could be put up. He stated that he was carrying base plates when he felt significant back pain and pain in both upper and lower limbs. The base plates were estimated to weigh 31 kilograms each and the respondent estimated that he lifted 12 to 13 of these.[2] He said he fell to the ground and had difficulty moving his legs. He was treated at Ryde Hospital.[3] He said he was treated with medication and physiotherapy and underwent various investigations, including for his back and his neck.
[1] Respondent’s statement 23/2/22, Application to Resolve a Dispute (ARD), p 2, [12].
[2] Dr Cochrane’s report 24/3/20, ARD, p 74.
[3] Respondent’s statement 23/2/22, [23]–[27].
The respondent filled out and signed a claim form on 15 December 2016. It described the injury as a “lumbar disc prolapse” and the body parts affected as “both arms + both legs inclusive of back”.[4] He stated his symptoms included the thoracic and cervical spine as well as the lumbar region. He said that he resumed work on 7 March 2017; he worked normal hours with a lifting limit of 10 kilograms, minimal bending and no digging or twisting. While back at work he was verbally abused by John, a work colleague.[5]
[4] ARD, pp 30–33.
[5] Respondent’s statement 23/2/22, [29]–[59].
The respondent saw his general practitioner, Dr Tran, about the verbal abuse and was referred to a psychiatrist, Dr Henson, in respect of anxiety. The respondent stated that on 25 May 2017 he was required to shovel eight tonnes of soil off the rear of a truck. He stated that he “suffered more pain up and down my back as well as my neck”. The respondent stated that he was put off work by Dr Tran on 27 May 2017. He stated that his pain soon resumed the state it was in previously.[6] The respondent resumed work, on light duties performed over three days per week, from 21 August 2017.[7] He had ongoing treatment which included the regular prescription of Endone. On 15 March 2018 the respondent underwent lumbar surgery, performed by Dr Coughlan, involving L4/5 disc replacement and a disc spacer with segmental fixation at L5/S1.[8] The respondent described ongoing lower back and neck symptoms, including numbness in the arms and a loss of control in the legs. He spent five weeks in Lady Davidson Rehabilitation Hospital.[9]
[6] Respondent’s statement 23/2/22, [63]–[64], [69]–[70].
[7] Respondent’s statement 23/2/22, [83].
[8] Dr Dixon’s report 25/8/21, ARD, p 95, Dr Coughlan’s report 16/4/18, ARD, p 421.
[9] Respondent’s statement 23/2/22, [121]–[124].
The respondent was assessed at his solicitors’ request by Dr Dixon, an orthopaedic surgeon, who reported on 10 and 11 September 2018.[10] Dr Dixon assessed 31 per cent whole person impairment in respect of the lumbar spine, scarring, cervical spine and thoracic spine. In two further reports dated 25 August 2021,[11] following re-examination, Dr Dixon assessed whole person impairment at 41 per cent. The respondent was assessed at his solicitors’ request by Dr Herman, a cardiologist, who reported on 18 March 2019.[12] Dr Herman diagnosed hypertension provoked by the respondent’s “chronic pain, weight gain, immobility, anti-inflammatory consumption and the development of post-traumatic stress disorder in association with anxiety and depression”. He assessed whole person impairment in this regard at 10 per cent. On 12 March 2020 Dr Haber, a cardiologist, reported at the request of the appellant’s solicitors.[13] Dr Haber assessed 5 per cent whole person impairment in respect of hypertension.
[10] ARD, pp 55–63.
[11] ARD, pp 94–101.
[12] ARD, pp 64–67.
[13] ARD, pp 68–72.
Dr Cochrane, a neurosurgeon, examined the respondent at the insurer’s request on 10 November 2017, 9 March 2019 and 13 March 2020. In a report dated 24 March 2020,[14] Dr Cochrane assessed 23 per cent whole person impairment in respect of the lumbar spine and surgical scarring. He reduced this to 21 per cent to take account of radiological evidence of lumbar spondylosis. Dr Cochrane said the respondent “would have no meaningful capacity for any form of work at any hours”. The doctor expressed the view that there had not been a work-related injury to the cervical spine and he did not provide an assessment of whole person impairment of the cervical spine. He said that at the time of assessment the cervical condition “would be consistent with an AMA5 DRE Cervical Category II impairment if it were determined that he had suffered a work-related injury to his cervical spine”. He said:
“I would concede, however, that increased muscle tone in the low back would, in due course, ascend through the spine towards the neck and restrict cervical movements as is often seen in patients with chronically increased paraspinal muscle tone. This is primarily a function or consequence of persisting pain as opposed to an injury to the cervical spine.”
[14] ARD, pp 73–85.
In a supplementary report dated 2 June 2020,[15] Dr Cochrane said:
“Mr Clarke has increased muscle tone in the spine and this I have documented in my previous IME assessments. I attribute this in part to severe spinal pain, muscle tension and gait dysfunction. I have not diagnosed a specific injurious condition affecting the cervical spine.”
“I believe the most significant contribution to any reduced cervical movement and pain is age-related degeneration. Although I concede there is some impact on the lumbar spinal condition regards increased tone aggravating or restricting cervical movements (and in fact globally restricting all movements), I do not believe this is a substantial contributing factor to the neck pain. In simple terms, I do not believe any present cervical pain can be reasonably related to work-related injury or treatments undertaken for work-related injury to the lumbar spine.”
[15] ARD, p 87.
The respondent said he was informed by Dr Granot, a neurologist, on 24 September 2018 that an MRI scan on 6 February 2017 showed discal abnormality at C6. He said that he saw Dr Granot at his solicitor’s request on 6 August 2021 and was told the MRI showed compression fractures in the thoracic spine.[16] The respondent was admitted to Sydney Adventist Hospital from 28 January 2021 to 14 February 2021. He was taking multiple medications by this time. He ceased taking morphine and opioid medication.[17] He continued under psychiatric care (Dr Stanley) and seeing a psychologist (Dr Peterson). He did not work after March 2018.[18] His employment was terminated on 14 February 2020.[19]
[16] Respondent’s statement 23/2/22, [174].
[17] Respondent statement 23/2/22, [237]–[244].
[18] Respondent statement 23/2/23, [254]–[255].
[19] Dr Haber’s report 12/3/20, ARD, p 70.
The appellant paid workers compensation benefits to the respondent on a voluntary basis. The respondent made a claim for lump sum compensation based on 47 per cent whole person impairment.[20] The claim in respect of cervical spine injury was denied by the relevant insurer in a notice dated 15 June 2020.[21] The current proceedings relate to the respondent’s claim in respect of lump sum compensation for “the lumbar spine, thoracic spine, cervical spine, cardiovascular system and TEMSKI/scarring”. Of these, the appellant disputes injury to the cervical and thoracic spine.[22]
[20] ARD, p 89.
[21] ARD, pp 36–40.
[22] Clarke v City of Ryde [2022] NSWPIC 261, Certificate of Determination, 1/6/2022, (reasons), [3]–[4].
The matter was listed for hearing on 10 May 2022. Mr Morgan appeared for the worker and Mr Stockley for the employer. There were no applications to take oral evidence. Both counsel addressed and the Member reserved his decision.
The Commission issued a Certificate of Determination dated 1 June 2022 accompanied by the reasons. There was a finding that the respondent suffered injury on 15 December 2016 to both the cervical spine and the thoracic spine, these being the two claimed body parts which were disputed. The matter was remitted to the President for referral to a Medical Assessor to assess permanent impairment in respect of all body parts claimed in the ARD.

THE MEMBER’S REASONS

The Member noted the thoracic and cervical spine injuries were disputed. He noted there was “voluminous” medical evidence, which he had regard to, but which he would not “unnecessarily traverse” in his reasons.[23]
[23] Reasons, [3]–[5], [11].
The Member noted the medical witnesses were, to an extent, unable to explain the origin of the thoracic and cervical symptoms. He briefly summarised Mr Stockley’s submissions on behalf of the employer dealing with this topic. The Member said the parties’ competing positions were “primarily encapsulated” by the evidence of Dr Houang and Dr Dixon (in the worker’s case) and Dr Cochrane and Dr Korber (in the employer’s case). He said Dr Korber drew together the threads of the diagnostic processes and it may be “inherently implausible” that there was a fracture of the cervical spine in the incident. He noted the employer drew attention to Dr Houang’s failure to engage directly with Dr Korber’s views on the absence of evidence of neurological injury. He noted Dr Dixon referred to the radiation of pain into the arms. He noted the “voluminous medical evidence” would be available to a future Medical Assessor.[24]
[24] Reasons, [15]–[18].
The Member referred to Davis v Council of the City of Wagga Wagga[25] regarding the need for caution in weighing evidence found in the records of treating medical practitioners. He noted the employer’s submission that there was an absence of reference to cervical or thoracic pain in the records of Ryde Hospital on the day of the accident. He said it was “entirely plausible” that there were errors in the notetaking at Ryde Hospital given the “clearly dominant injury to the lumbar spine”. He said the respondent would have been in a great deal of pain. Notwithstanding this, the respondent referred to tingling and a loss of feeling in his arms, consistent with cervical and thoracic injury. The notes referred to completion of a claim form. The claim form, in the Member’s view, constituted “compelling, contemporaneous evidence”.[26] The Member referred to the notes of Dr Tran, the general practitioner, which “recorded complaints going to a cervical and possibly thoracic spine injury after Mr Clarke’s discharge from hospital and into mid-2017, referring Mr Clarke for neurological investigation and physiotherapy treatment to both the lumbar and thoracic spine”. The Member noted there was then an absence of complaint of cervical and thoracic symptoms until 2019. He observed that he did not “need to determine whether the impact of that initial injury … continues to the point [of] permanent disability. That is a matter for the [M]edical [A]ssessor.”[27] He said “it is not necessary or appropriate for me to determine whether Mr Clarke’s current complaints have any organic basis still referrable to the accident”.[28]
[25] [2004] NSWCA 34 (Davis).
[26] The claim form dated 15/12/16 described parts of the body affected as “both arms + both legs inclusive of back” (ARD, p 31).
[27] Reasons, [20]–[26].
[28] Reasons, [27].
The Member made a formal finding of injury to the cervical and thoracic spine. He directed that the matter “be remitted to the President for referral to a [M]edical [A]ssessor for a finding of whole person impairment in relation to all body parts listed in the ARD”.[29]
[29] Reasons, [29].

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

INTERLOCUTORY DECISION

The appellant correctly submits that, as the Member’s orders involve a referral for medical assessment only, the decision appealed is interlocutory.[30] The appellant seeks leave to bring the appeal pursuant to s 352(3A) of the 1998 Act. It submits that, if the appeal succeeds, it will represent the final disposition of the rights of the parties in respect of the disputed body parts, involving not only lump sums but also treatment expenses, incapacity and thresholds. It submits the balance of convenience favours determination of the issue before assessment by a Medical Assessor, rather than afterwards.[31] The respondent agrees that leave is required and describes this as “a matter for the Commission”.[32]
[30] See generally Licul v Corney [1976] HCA 6; 180 CLR 213, P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12.
[31] Appellant’s submissions, [3]–[4].
[32] Respondent’s submissions, ‘Interlocutory Decision’.
I accept that the balance of convenience favours determination of the appeal at this point rather than after a medical assessment is held.[33] The grant of leave is desirable for the proper and effective determination of the dispute. Leave is granted pursuant to s 352(3A) of the 1998 Act.
[33] See generally, Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50, [17]–[22].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Member erred in law in failing to give adequate reasons for his decision. (Ground No. 1)
(b)    The Member erred in law in failing to identify the legal test that he was applying to the question in issue, namely injury to the thoracic and cervical spines. (Ground No. 2)
(c)    The Member erred in law in that whatever legal test he may have been applying there was no evidence to support his finding of symptoms consistent with a cervical and thoracic spine injury reported contemporaneously by Mr Clarke at the time he was admitted to hospital. (emphasis in original) (Ground No. 3)

GROUNDS NOS. 1 AND 2

The appellant’s submissions describe Ground No. 2 as “a subset or subspecies of Ground 1”. It relies on paragraph [17] of its submissions, in support of Ground No. 1, as also supporting Ground No. 2. It is appropriate to deal with these two grounds together.

Appellant’s submissions

The appellant describes the provision of adequate reasons as performing two functions. The first is said to be “a template or reminder” of the matters requiring consideration. The second is said to be to inform the parties how the matter was determined and the extent to which the legal requirements of decision making had been complied with. The appellant submits the matters requiring consideration “would ordinarily include”:
(a)    an identification of the issue(s) and the statutory provisions to be applied;
(b)    recording of fact finding including the decision maker’s reasons for finding a particular fact to the requisite evidentiary standard;
(c)    an application of the legal principles to the found facts, and
(d)    the orders that are made as a result of the determination.
The appellant describes the above matters as “in effect the obligations to undertake rule stating, fact finding and rule applying as described by Kirby P in Azzopardi v Tasman UEB Industries Ltd”.[34] The appellant states there is “also an obligation to record those steps in the reasons”.[35]
[34] (1985) 4 NSWLR 139.
[35] Appellant’s submissions, [11]–[14].
The appellant submits the Member correctly recorded the issue to be decided and correctly noted that this required “consideration of medical data and opinions”. It submits the Member articulated the process as “whether he was satisfied of the existence of symptoms consistent with a cervical and thoracic spine injury reported contemporaneously by Mr Clarke at the time he was admitted to hospital”. It submits that this may have been a necessary part of the reasoning process. It submits that process first required “an acknowledgment of identification of what constitutes injury” for the purpose of the Workers Compensation Act 1987. The appellant submits the reasons failed to state “what the Member considered to be capable of constituting symptoms consistent … with injury” (emphasis in original). The appellant submits this is an error of law that warrants setting aside the decision.[36]
[36] Appellant’s submissions, [15]–[18].
The appellant submits the reasons do not explain how the symptoms referred to in the worker’s claim form are consistent with the injuries claimed. The claim form refers to “Lumbar disc prolapse (presumably a diagnosis received from a medical practitioner)” and describes the body parts affected as “both arms + both legs inclusive of back”. The appellant submits there is no “explanation as to how or why these symptoms are consistent with the injuries claimed” (emphasis in original). It submits this warrants the decision being set aside. It refers to the principles identified in Golden Swan Investments (Australia) Pty Ltd v Yahiaoui.[37] It submits the worker’s credit was not in issue but his reliability was. This required the Member to weigh the worker’s reliability in the various histories provided. The Member’s assessment in this regard is not recorded.[38]
[37] [2019] NSWWCCPD 40.
[38] Appellant’s submissions, [19]–[21].

Respondent’s submissions

The respondent submits that Ground No. 2 is “clearly extraneous” and (like the appellant) does not make separate submissions in respect of that ground.[39]
[39] Respondent’s submissions, [11].
The respondent refers to Soulemezis v Dudley (Holdings) Pty Ltd[40] and Beale v Government Insurance Office of NSW.[41] He submits the principles to be “distilled” from these decisions suggest that the duty to give reasons requires:
(a)    an identifiable explanation of the reasoning process;
(b)    identification of the evidence accepted or rejected and the reasons for same;
(c)    explanation as to why a conclusion was reached despite evidence to the contrary, and
(d)    recognition of the central arguments or issues raised by the parties and why those arguments are accepted or rejected.[42]
[40] (1987) 10 NSWLR 247 (Soulemezis).
[41] (1997) 48 NSWLR 430 (Beale).
[42] Respondent’s submissions, [1]–[2].

The respondent describes the Member’s reasons as “refreshingly brief”. He submits the reasons identified the matters in dispute at paragraph [4], saying the employer contended that the thoracic and cervical spine injuries ought be excluded from an assessment of the worker’s whole person impairment. The respondent submits the Member then set about identifying the voluminous treating medical material, at paragraphs [14], [15], [16] and [18] of the reasons. He submits that the reasons at [14] to [18] engage in detailed analysis of the contemporaneous and independent medical opinions. At [20], the Member referred to the need for caution in relying on the records of busy treating medical practitioners (the reference to Davis). The respondent submits that, having considered the above matters, the Member at [24] to [25] expressed his views.[43] It was not a case where the Member failed to refer to “evidence that was important and indeed critical” to the appellant’s case. (There is reference to Whalan v Kogarah Municipal Council[44] and The Nominal Defendant v Kostic.[45])[46]
[43] Respondent’s submissions, [3].
[44] [2007] NSWCA 5 (Whalan), [40].
[45] [2007] NSWCA 14 (Kostic), [56].
[46] Respondent’s submissions, [3]–[4].
The respondent refers to the appellant’s submission that, although the Member noted the need to consider contemporaneous medical material and reporting, the Member’s articulation of this process was limited to being satisfied as to the existence of symptoms consistent with a cervical or thoracic spine injury. The respondent submits this is incorrect, in the reasons at [15] to [18] there was detailed analysis of contemporaneous and independent medical opinion.[47]
[47] Respondent’s submissions, [5]–[7].
The respondent quotes from the decision of Keating P in NSW Police Force v Newby,[48] including his Honour’s references to the statutory requirements and summary of authority. The respondent submits the appellant at [21] of its submissions “lapses” into complaint about the medical evidence on which it relied not being accepted. The respondent submits this is not an available ground, a reference to the limitations on an appeal pursuant to s 352(5) of the 1998 Act.
[48] [2009] NSWWCCPD 75.
The respondent submits the Member’s reasoning path was clear, consistent with authority and it left no doubt about the path that led to his determination.

The requirement to give reasons

Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Personal Injury Commission Rules 2021 provides:
“78    Statement of reasons for decision
(1)     This rule applies only in relation to the following applicable proceedings—
(a)Commission proceedings,
(b)merit review proceedings.
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
In Beale Meagher JA quoted from Mifsud v Campbell[49] and Soulemezis and said “[it] follows, that reasons need not necessarily be lengthy or elaborate … the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required.” His Honour described “three fundamental elements of a statement of reasons, which it is useful to consider”.
[49] (1991) 21 NSWLR 725 (Mifsud), 728.
The first was that “a judge should refer to relevant evidence”. This need not be in detail, especially where it is clear that the evidence has been considered. Where certain evidence is important or critical to the proper determination of the matter and it is not referred to, an appellate court may infer it was overlooked or not considered. Where conflicting evidence is of a significant nature the existence of both sets of evidence should be referred to.
The second was that “a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached … Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other”. This does not require that “a judge must make explicit findings on each disputed piece of evidence”.
The third was that “a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found”. His Honour described a “balancing act” between the purpose which reasons serve, as opposed to the costs and delays involved in litigation. “[T]he sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal”. His Honour said “the statement of reasons must be looked at as a whole”.[50]
[50] Beale, 443–444.
There is a helpful summary by McColl JA (Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd,[51] of a number of the authorities dealing with the duty to give reasons. Her Honour said:
“58. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson[2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme[2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
59. The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘ ‘enter into’ the issues canvassed and explain why one case is preferred over another’; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services[1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.”
[51] [2009] NSWCA 110.
In Hume v Walton McColl JA said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’.”[52]
[52] [2005] NSWCA 148, [69] (citations omitted).
The respondent’s submissions on appeal refer to Kostic, in which the decision of the Court of Appeal in Whalan was referred to. The factual background in Kostic bore similarities to the current proceedings. It involved an assessment of damages in respect of injuries sustained in a motor vehicle accident. The dispute in Kostic was described in the parties’ submissions as involving a “single issue being ‘whether the [plaintiff’s] lower back was injured in the subject motor accident’.”[53]
[53] Kostic, [5].

The parties’ positions at the hearing

The extent and requirements of adequate reasons depend on the particular case and the issues between the parties. The parties’ submissions are, in those circumstances, set out in greater than usual detail below. The Member, at the commencement of the hearing, set out the matters in issue:
“This [is] a dispute in relation to whole person impairment or injuries which are to be taken into consideration for the assessment of whole person impairment before referral to a Medical Assessor. The body parts are cervical spine and thoracic spine.”[54]
[54] Transcript of hearing 10/5/22 (T), T 1.27–32.
The dispute was referred to in similar terms by Mr Morgan.[55] Mr Morgan referred to a passage from a report of Dr Cochrane (in the appellant’s case) from which he sought to draw that, in the doctor’s view, the respondent’s complaint of being unable to feel his arms and legs (recorded in contemporaneous notes) was consistent with suffering an injury to the cervical spine. Mr Morgan summarised his point, saying:
“So what the doctor’s saying, in our submission, there, Member, is because he’s not convinced on the radiological presentation that there’s any structural abnormality, while there was a presentation at the time of injury consistent with injury to the cervical spine, he’s not prepared to commit, three years later, that there is, for want of a better expression, a persisting injury to the spine.”[56] (emphasis added)
[55] T 2.20–24.
[56] T 5.1–9.
Mr Morgan submitted that Dr Haber (also qualified in the appellant’s case) “concedes that there was some neurological compromise manifesting in pains in the arms evident post injury”.[57] Mr Morgan submitted:
“So once there’s an acceptance of injury, Member, the Act requires that, the established authorities on the point are to the effect that once you accept injury it becomes a matter for a Medical Assessor to determine the extent [of] impairment that can be attributable to the injury.”[58]
[57] T 5.16–18.
[58] T 6.5–10.
Mr Morgan described this as the “nub of the dispute”. He continued:
“… we say, in effect there is no dispute because Dr Cochrane accepts in the expression of his opinion that there was some compromise evident at the time of injury and the persisting consequences of same, we say, [are] for the Medical Assessor to determine, which would mean that the cervical spine and thoracic spine would need to be referred to a Medical assessment, Assessor for assessment.”[59]
[59] T 6.22–29.
Mr Morgan took the Member to the respondent’s statement which “describes the feeling of numbness in his upper and lower limbs, paragraph 24”. He took the Member to the claim form:
“‘What parts of the body were affected? Both arms, both legs inclusive of back.’ So there’s a clear distinction between issues associated with the arms and then the back and legs as being a separate injury as identified in the claim form and that’s consistent with [what] one sees in the reporting and investigation that follows immediately after the injury, Member.”[60]
[60] T 7.15–22.
Mr Morgan referred to references in other treating records, in the early part of the treating history after 15 December 2016, that contained references in histories submitted to be consistent with injury to the cervical and/or thoracic regions of the spine. Dr Frith on 31 January 2017 recorded that when injured the respondent “immediately felt numbness from the elbows down and from the hips down. He continues to have sensory symptoms in the arms and legs with left sided sciatic pain”. Dr Frith said “As Mr Clarke continues to have symptoms in the upper limbs as well as lower limbs MRI of whole spine is recommended to exclude cord compression or syrinx in the cervical spine”.[61] On 3 February 2017, Dr Tran referred the respondent for physiotherapy of the neck and back.[62] On 6 February 2017, the respondent underwent an MRI of his cervical and thoracic spine, with a recorded history of numbness.[63]
[61] ARD, p 396.
[62] ARD, p 399.
[63] ARD, p 376.
Mr Morgan referred to multiple reports of treating doctors that included reference to neck and thoracic symptoms and complaints of numbness.[64] The Member observed, paraphrasing Mr Morgan’s submission, that “… even if it’s being dismissed as a musculoligamentous type strain, the fact, that’s enough”.[65] Mr Morgan reiterated his point:
“… our position would be that you have consistent complaints relative and contemporaneous complaints relative to issues associated with the worker’s neck and thoracic spine. You have investigations in treatment directed to the neck and thoracic spine immediately consequent upon the injury. If ultimately, Dr Cochrane’s view with respect to no permanent consequence is correct, well we say that would be a matter for a Medical Assessor to determine, but the matter should be referred to a Medical Assessor based on the fact that you do have that, would have that comfort that there was injury at the time of the incident the subject of these proceedings.”[66]
[64] See T 8.28–15.24.
[65] T 13.11–12.
[66] T 16.20–32.
Mr Stockley submitted that none of the treating doctors had been able to find an organic explanation for the respondent’s presentation, the “accepted back symptoms as well as thoracic and cervical symptoms”. He submitted that the opinions of Dr Dixon and “possibly Dr Granot” were that the incident “caused simultaneous fractures in both the cervical and thoracic spine”. He submitted this was “completely implausible” and was subject to “a very potent rebuttal in the opinion of Dr Korber”. Such an event would have been accompanied by the presentation of significant symptoms. He submitted the material did not reveal “significant symptoms” at any time associated with the thoracic or cervical spine.[67] Mr Stockley submitted Dr Korber’s proposition went “unanswered” in the worker’s case, including in the late documents (from Dr Houang and Dr Dixon) placed before the Commission on the morning of the hearing. It was submitted that Dr Houang was given an opportunity, by the worker’s solicitors, to comment on Dr Korber’s opinion, and his opinion dealing with this part of Dr Korber’s opinion was “unresponsive”. He did not rebut it. Mr Stockley submitted on this aspect of Dr Korber’s opinion that “ultimately, it’s definitive”.[68]
[67] T 17.16–18.22.
[68] T 19.3–15.
Mr Stockley submitted on the claim form, saying it referred to “the complaint of the peripheral presumed neurological symptoms that have … never been the subject of any neurological confirmation as to cause”. He said the Ryde Hospital notes did not “make complaint of any neck injury or neck symptom at that time”. He referred to Dr Tran’s notes, “the next series of contemporaneous documents”. He submitted there was “nothing within those documents suggestive of any contemporaneous complaint of neck or thoracic injury or symptom until well into 2017”.[69] He referred to the worker’s statement dated 23 February 2022, which he described as “a recapitulation of clinical notes”, submitting “you would refer to the notes rather than the [worker’s] account of them”.[70]
[69] T 19.25–21.19.
[70] T 21.21–31.
Mr Stockley referred to a report of Dr Jane Frith, a neurologist, dated 21 February 2017.[71] She referred to a nerve conduction study of the lower limbs on 31 January 2017 and an MRI scan of the cervical and thoracic spine on 6 February 2017. There was no significant structural abnormality. There was a complaint of numbness on the exterior surface. Mr Stockley referred to this as “a confounding symptom that has challenged the treating doctors all the way through and [for] which no neurological explanation has ever been forthcoming”. He submitted there “is no neck pain … that’s not what the [worker] tells you in his statement”. He submitted “the clinical material doesn’t make out that proposition, so some caution has to be exercised … when you regard his assertions of these matters as history”. He submitted there was no reference to neck symptoms in Dr Tran’s notes until well into 2017.[72]
[71] ARD, p 404.
[72] T 25.11–26.20.
Mr Stockley submitted that if there had been a neck injury of the magnitude of that diagnosed by Dr Dixon and Dr Granot there would have been an onset of obvious symptoms and there was not. Mr Stockley submitted there was no “alternative case theory” that would support the proposition of injury to “either parts of the body that are claimed”.[73]
[73] T 26.23–33.
Mr Stockley referred to Dr Cochrane’s report dated 30 November 2021.[74] The doctor recorded a history of “‘incredible’ neck and low back pain” at the time of the incident, there having been no mention of severe neck pain at that point of time, in the doctor’s original assessment on 10 November 2017.[75] Mr Stockley described this as an example of ex post facto reconstruction, such that caution needed to be exercised in assessing what the worker told doctors from time to time. Mr Stockley referred to Dr Coughlan’s reasons for arranging an MRI scan of the worker’s cervicothoracic spine – “I am duty bound to ensure that there is no significant pathology higher up involving the cervicothoracic spine”.[76] It was submitted to be the action of “a careful neurosurgeon who is eliminating other possible explanations for the inexplicable symptoms that he’s faced with”. Dr Coughlan was submitted to have observed a significant functional overlay. It was submitted to be a “very difficult symptom presentation”.[77]
[74] Reply, pp 114–133.
[75] Reply, p 116.
[76] Reply, p 173.
[77] T 27.1–30.24.
Mr Stockley submitted that “no one in this case supports the proposition that the [worker] has a cervical radiculopathy … it’s not Dr Dixon’s view or anyone else’s”. He submitted Dr Granot “hasn’t been able to identify the neurological explanation for the [worker’s] presentation, which is the problem that everyone has experienced in the matter”. Mr Stockley referred to Dr Granot’s report dated 8 August 2021,[78] particularly at p 525 of the ARD. It was there said that there was “no clear causative link that can be drawn from the mechanism of the original injury to the current acral sensory symptoms”. Mr Stockley submitted that this “puts paid” to the worker’s proposition that peripheral numbness was reported from the day of the accident onwards, clearly denoting a cervical injury on 15 December 2016. He submitted that, according to Dr Granot, it does not. He submitted Dr Granot attributes “other unexplained neurogenic symptoms as being likely secondary to the psychiatric disorder”. Mr Stockley submitted “the continuity of the unexplained symptoms ultimately [does not] help the [worker] in presenting an allegation of neck or cervical injury”.[79]
[78] ARD, pp 517–528.
[79] T 31.17–33.21.
Mr Stockley referred to the report of Dr Davies, a treating neurosurgeon, dated 11 February 2019.[80] Dr Davies’ history said, in part, that the worker noticed neck discomfort straight after the incident. Mr Stockley described this as inconsistent with the worker’s history “at the time of the injury or in the months following it”. Dr Davies noted non-dermatomal loss of sensation below the knees and elbows bilaterally, and that reflexes were “absolutely normal”. It was submitted that this suggested no dermatomal explanation for the “peripheral symptoms”. Mr Stockley referred to Dr Davies’ diagnosis of a generalised pain syndrome.[81]
[80] ARD, pp 459–460.
[81] T 34.19–35.10.

Mr Stockley referred to the respondent’s submission that “Dr Cochrane conceded a cervical injury, even though it couldn’t be said that the current symptoms could be said to relate to it”.[82] Mr Stockley submitted that Dr Cochrane’s “report cannot be read in that way”, the “gloss” put on it by the respondent was not available.[83] He referred to Dr Cochrane’s report dated 24 March 2020.[84] Dr Cochrane noted a reference in contemporaneous notes to a period where the worker could not feel his arms or legs. He noted Dr Cochrane’s opinion that there was no motor or neurological capability that the doctor could reasonably attribute now to the injury to the cervical spine. He does not say there may have been some sort of neurological insult to the neck on the day of injury. Rather, the doctor is saying that in spite of certain complaints on the day of injury, “there’s nothing to see now”. Mr Stockley submitted that none of the neurologists or neurosurgeon that treated the worker concluded there was such an injury.[85] Mr Stockley submitted there was “no credible expression of mechanical injury that is in any way accommodated by the clinical history”.
[82] T 33.24–26.
[83] T 33.23–27.
[84] ARD, pp 73–85.
[85] T 37.5–34.
Mr Stockley referred to Dr Dixon’s reports. In the first, dated 10 September 2018,[86] Dr Dixon referred to the history of the accident and treatment, following which the doctor said “he subsequently developed pain in the neck and thoracic spine”. This was consistent with the available clinical notes, including those of Dr Tran. Dr Dixon recorded a history of developing pain in the neck and thoracic spine after shovelling at work, with sensory alteration down the arms.[87] Mr Stockley referred to Dr Dixon’s statement in that report that “the above conditions are causally related to the injuries received in the subject accident”. He said “Dr Dixon hasn’t given us any insight into how he reaches that conclusion at all”.[88]
[86] ARD, pp 55–59.
[87] T 39.20–22.
[88] T 39.28–31.
Mr Stockley referred to Dr Dixon’s report dated 25 August 2021.[89] It included reference to the worker having “subsequently developed injury to the thoracic spine and the cervical spine”. Mr Stockley said this is the worker’s “primary case on injury and the medical case on injury”. He referred to the worker’s reliance on Dr Cochrane’s opinion, saying “it’s difficult to go to Dr Dixon’s opinion in order to advance the [worker’s] case”. Mr Stockley submitted that the worker’s case fails.[90] Mr Stockley concluded:
“… there’s no contemporaneous complaint of neck or thoracic injury, no contemporaneous complaints of neck or thoracic pain. There’s no coherent medical explanation for a nexus between the radiological characteristics that have been identified on the way through in the hunt for a neurological explanation for known symptoms, and you have well reasoned expressions of opinion from Dr Cochrane and Dr Korber that there’s been no neck or thoracic injury and an absence of any suggestion by Dr Davies or Dr Coughlan of any such injury. In those circumstances, the respondent’s submission is that the only referral that ought to be admitted to the Medical Assessor is that of the lumbar spine, scarring and the hypertension.”[91]
[89] ARD, pp 94–100.
[90] T 42.24–34.
[91] T 43.10–23.
Mr Morgan, in his submissions in reply, referred to Davis and the need to approach clinical material from around the time of the incident with caution. The clinician dealing with the worker at Ryde Hospital did not record the complaints of both arms and both legs, which were set out in the claim form. Mr Morgan submitted that Dr Tran’s notes contained “scant information”. Mr Morgan referred to Dr Frith, who in January 2017 performed testing to determine the nature of the worker’s arm complaints and reported that the worker made no complaints regarding the neck until well into 2017. That doctor, within six weeks of the injury, recorded that the worker immediately felt numbness from the elbows down. He submitted that when the clinical material from 2017 to 2019 was examined, there was consistency of complaint relating to the cervical spine and arms. He described the cervical spine as “front and centre from a treatment point of view from day one”.[92]
[92] T 46.2–3.
Mr Morgan referred to the appellant’s reliance on Dr Korber. He submitted that Dr Korber advanced a theory in April 2022, going to an injury five to six years previously, without an examination, doing a file review on radiology.

Consideration

The matter was conducted on the basis that issues of ‘injury’ were to be determined by the Member. It was then to be a matter for a Medical Assessor to assess the degree of permanent impairment resulting from the injuries that were found.[93]
[93] Reasons, [5]. See generally Haroun v Rail Corporation of New South Wales [2008] NSWCA 192; 7 DDCR 139, Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.
Mr Morgan submitted to the Member that Dr Cochrane conceded the occurrence of injury to the cervical spine, notwithstanding that the doctor did not accept there were continuing effects from that injury (see [42] and [44] above). Mr Stockley submitted to the Member that Dr Cochrane’s report “cannot be read in that way”. He submitted that none of the neurologists or the treating neurosurgeon considered there was such an injury. He submitted there was “no credible expression of mechanical injury that is in any way accommodated by the clinical history” (see [52] to [53], [55] above). The appellant addressed on the basis that caution should be exercised in dealing with the respondent’s evidence in the histories he furnished to doctors (see [50] to [52] above). The appellant submitted that none of the treating doctors had been able to find an organic explanation for the respondent’s presentation (see [48] above). The appellant on this appeal submits the respondent’s credit was not in issue but his reliability was (see [25] above). It is apparent that there was little common ground between the parties on the issue of whether the respondent had suffered the contested injuries.
The Member’s reasons noted there was an absence of reference to injury to the cervical and thoracic regions of the spine, in the notes relating to the respondent’s attendance at Ryde Hospital on the date of accident. The respondent’s submissions before the Member relied on the claim form (also executed on the date of accident, 15 December 2016) which referred to the parts of the body affected as “both arms + both legs inclusive of back”. There was, of course, an accepted injury to the lumbar spine in the incident on 15 December 2016.
The Member referred to Davis, reasoning that there may have been “errors and omissions” in the note taking by medical staff at Ryde Hospital given the “dominant injury to the lumbar spine”. The Member reasoned the respondent would have been “in a great degree of pain” and “no doubt distracted” at the time. He described the claim form as “compelling contemporaneous evidence”. He considered it unlikely that the respondent would, at that time, have manufactured symptoms to maximise his compensation claim by “mentioning body parts or symptoms” which he had not injured.[94]
[94] Reasons, [19]–[23].
The Member said that assessment of permanent impairment was “a matter for the medical assessor”. He said:
“It is sufficient for me to be satisfied that there were symptoms consistent with a cervical and thoracic spine injury reported contemporaneously by Mr Clarke at the time he was admitted to hospital.”[95]
[95] Reasons, [25].
The test raised by the Member in his reasons at [25] did not fully reflect the matters which he needed to be satisfied about, to make a relevant finding of ‘injury’ and to refer the contested body parts for assessment. It was necessary that he be satisfied of the occurrence of the disputed injuries, not simply that there were potentially relevant symptoms present at the time of the hospital admission. The presence of symptoms could clearly be relevant to whether the contested injuries were proved. The reference to the “back” in the injury description in the claim form (see [62] above) does not assist greatly. Although this would be consistent with injury to the thoracic region of the back, it is common ground that the respondent in the incident suffered a disc injury to his lumbar spine, which ultimately brought him to surgery. The reference to “back” does not necessarily relate to the thoracic spine. There is no reference to the neck in the claim form.
The reference to “both arms” does not relate directly to the neck or the thoracic spine. It is not unusual to encounter upper limb symptoms in the presence of injury to the thoracic and cervical regions of the spine. It is in no way invariable that injury to the cervical or thoracic regions of the spine will be associated with upper limb symptoms. Much will depend on the precise nature of the injury sustained. The Member’s reasons described the symptoms of numbness and tingling radiating to the respondent’s arms as “consistent with an injury to [the respondent’s] thoracic and cervical spine”. This was not common ground. The appellant’s submissions are summarised above. The appellant’s case before the Member included the following submissions:[96]
[96] See [51]–[56] above.
(a)    none of the treating doctors had been able to find an organic explanation for the respondent’s presentation;
(b)    it was completely implausible that there were simultaneous fractures involving the thoracic and cervical spine;
(c)    the material did not reveal significant symptoms at any time associated with the thoracic or cervical spine;
(d)    there was no record of neck complaints at Ryde Hospital;
(e)    nothing in Dr Tran’s notes suggested neck or thoracic injury or symptoms until “well into 2017”;
(f)    an MRI scan of the thoracic and cervical spine arranged by Dr Frith, neurologist, on 6 February 2017 showed no significant structural abnormality;
(g)    Dr Coughlan observed a “significant functional overlay”;
(h)    no one in the case supported the presence of cervical radiculopathy, and
(i)    Dr Granot said there was no clear causative link between the mechanism of the original injury and the “current acral sensory symptoms”. This was inconsistent with the proposition that peripheral numbness was reported from the date of accident, denoting a cervical injury at that time. Dr Granot considered unexplained neurogenic symptoms were “likely secondary to the psychiatric disorder”.
The approach taken by the Member was to treat the symptoms described in the claim form (which did not directly refer to injury or symptoms in the thoracic or cervical regions of the spine) as corroborative of the allegation of the disputed injuries. The extent to which the evidence overall, including the reference in the claim form to arm symptoms, was sufficient to discharge the respondent’s onus of proving the disputed injuries, was very much in contest. The appellant ran a precise and clearly argued case that the respondent had not discharged his onus of establishing the alleged injuries to the cervical and thoracic regions of the spine.
The Member’s reasons referred to the “voluminous amount of medical evidence”, which he said he “had regard to” but did not propose to “unnecessarily traverse”. He referred to the “various competing medical opinions … comprehensively referred to by both barristers, as were the diagnostic reports”. The reasons failed to engage in analysis of the competing medical cases. The need to deal with the competing medical cases was not obviated by the reference in the claim form to “both arms”. The appellant’s submissions challenged whether there was an organic explanation for the respondent’s presentation, whether there was any significant structural abnormality in the contested parts and whether the peripheral numbness was secondary to a psychiatric disorder. The appellant on this appeal submits, with justification, that there was no explanation of how or why the arm symptoms were consistent with the injuries claimed (see [25] above).
It was necessary that the reasons “do justice to the issues posed by the parties’ cases” and enable the parties to understand “the extent to which their arguments had been understood and accepted”. It was a case which involved disputed expert evidence. It was appropriate that the Member enter into the issues canvassed (see the passage quoted at [39] above). The reasons did not comply with the Member’s obligation to provide adequate reasons. It follows from the above that Grounds Nos. 1 and 2 are made out.

CONCLUSION

The above is sufficient that the appeal succeeds. It is unnecessary to deal with Ground No. 3.
The found error is an error of law.[97] The appropriate course is that the matter be remitted for re-determination by a different member.
[97] Pettitt v Dunkley [1971] 1 NSWLR 376, 382C–E.

DECISION

The Certificate of Determination dated 1 June 2022 is revoked.
The matter is remitted to another non-Presidential member for re-determination.

Michael Snell
Deputy President

26 April 2023