Classic Carpentry Services Pty Ltd v Tideswell - [2024] NSWPICPD 43

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Classic Carpentry Services Pty Ltd v Tideswell [2024] NSWPICPD 43
APPELLANT:	Classic Carpentry Services Pty Ltd
RESPONDENT:	Peter Tideswell
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4027/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	5 August 2024
ORDERS MADE ON APPEAL:	1. Pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 grant leave to the appellant to pursue the appeal. 2. Grant the appellant leave to rely on additional grounds 5 and 6 of the appeal. 3. Dismiss the appeal. 4. The Member’s Certificate of Determination dated 21 September 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – leave to appeal; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – whether worker sustained injury to the cervical spine – Member’s consideration of medical reports – procedural fairness – adequacy of reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Krieg, solicitor
Turks Legal
Respondent:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	21 September 2023

INTRODUCTION

This is an appeal by Classic Carpentry Services Pty Limited (Classic Carpentry/the appellant) in respect of a Certificate of Determination issued on 21 September 2023.
Mr Tideswell (the respondent) was employed by the appellant as a carpenter. On 2 April 2019 he sustained multiple injuries while working on the installation of a staircase. One of two levels collapsed onto him. The appellant accepted liability for injuries to the left knee, left shoulder, right elbow and right shoulder.
The respondent worker claimed lump sum compensation for 39% whole person impairment in relation to both upper extremities (left shoulder, right elbow and right shoulder), the left lower extremity (left knee), the cervical spine and scarring. By a s 78 notice, the appellant disputed liability for any injury to the cervical spine.
The matter came on for hearing before the Personal Injury Commission (the Commission) on 28 August 2023.
The issues between the parties were identified by the Member in the following terms:
(a)    whether Mr Tideswell sustained injury to his cervical spine on 2 April 2019 in the course of his employment with Classic Carpentry, with employment being a main contributing factor to the injury; and/or
(b)    whether Mr Tideswell sustained a consequential condition in his cervical spine resulting from injury sustained on 2 April 2019 in the course of his employment with Classic Carpentry; and
(c)    the percentage of whole person impairment sustained by Mr Tideswell resulting from injuries sustained on 2 April 2019 in the course of his employment with Classic Carpentry.
On 21 September 2023 the Member issued the Certificate of Determination which provided as follows:
“1.     The [respondent] sustained injury to his cervical spine on 2 April 2019 in the course of his employment with the [appellant]. The [respondent’s] employment is the main contributing factor to injury.
2.      Award for the [appellant] in respect of the [respondent’s] alternative allegation of consequential condition in his cervical spine.
3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. Date of injury:                 2 April 2019
b. Body systems:               right upper extremity (right shoulder and right   elbow)
left upper extremity (left shoulder)
left lower extremity (left knee)
cervical spine, and
TEMSKl/scarring.
c. Method of assessment: whole person impairment
4.      The documents to be reviewed by the Medical Assessor are:
a. Application to Resolve a Dispute and attached documents;
b. Reply and attached documents;
c. Application to Admit Late Documents dated 21 August 2023 and attached documents lodged on behalf of the [appellant], and
d. Application to Admit Late Documents dated 30 August 2023 and attached documents lodged on behalf of the [respondent].”
The appellant and the respondent agree that the decision of the Member was interlocutory and agree further that leave should be granted to permit the appellant to agitate the appeal.
The appellant relies on six grounds of appeal, namely:
Ground 1 – The Member erred in finding that Dr Bentivoglio had not reviewed the MRI scan dated 11 January 2022 or the complaints of neck symptoms to Mr Bourke and Dr Ho.
Ground 2 – The Member fell into jurisdictional error by failing to afford the appellant procedural fairness.
Ground 3 – The Member erred in law in relation to her findings that the respondent sustained an injury to the cervical spine.
Ground 4 – The Member erred at law by failing to provide sufficient reasons in relation to her determination that the respondent sustained an injury.
Ground 5 – The Member erred at law by rejecting Dr Bentivoglio’s opinion for reasons for which there was no foundation.
Ground 6 – The Member erred in law by accepting the opinion of Dr Habib with no foundation for doing so.
Grounds 5 and 6 were added to the appeal following receipt of the transcript.
For the reasons that follow, I grant leave to the appellant to bring the appeal. Additionally I grant leave to the appellant to rely on the further Grounds of Appeal 5 and 6 added upon receipt of the transcript. I dismiss the substantive appeal and confirm the Certificate of Determination.

THE MEMBER’S REASONS

On 20 September 2023 the Member delivered an oral statement of her reasons for determination.
The Member accepted that the injuries were sustained on 2 April 2019 as follows:
“On 2 April 2019, during the course of his ordinary employment duties, the [respondent] was installing a staircase and had just completed installing the top landing. As he commenced working on the second landing, he noticed the landing was a bit short, so he started installing a bit of timber to rectify the length, when the overhead collapsed, crushing the [respondent]. This is referred to as ‘the incident’.”[1]
[1] Transcript of oral reasons, 20 September 2023 (T2), T2 1.42–2.7.
The Member provided a comprehensive summary of the lay and medical evidence which is unnecessary to repeat.
An extract from Mr Tideswell’s statement elaborating the circumstances of the injury, included the following:
“The landing continued to fall on the right side of my upper body, hitting my head, neck, right arm, and my right shoulder region. Even though the impact of the injury affected all the other mentioned body parts, I was initially only concerned with my right elbow, right shoulder, left shoulder and left knee. My left shoulder increasingly got worse and was aggravated by compensatory overuse, and my neck increasingly felt stiff, but I did not think anything of it at the time or take it too seriously, as I was too focused on my other injuries that required surgery.”[2]
[2] T2 4.34–5.10.
Later the Member quoted further from the respondent’s statement:
“Between April 2019 to May 2020, my right and left shoulders were my focus, due to the severity of these restrictions, each requiring multiple surgeries, radiological scans, and specialist appointments. I did not have time to seek treatment for my aching neck pain. I was also taking a significant amount of pain medication during that period, meaning my neck pain could have been masked by the analgesics. At the time I had my injury, I understood that the pain in my neck was radiating from my shoulder. I was of the view that if I fixed my shoulder and other injuries, then my neck would resolve itself. My paramount concern was all my other injuries that seemed more severe at that time. On the date of injury, the impact involved my neck directly, but it was not until mid-2020 that the pain increased, and I sought immediate medical attention.”[3]
[3] T2 5.13–28.
The Member analysed Mr Tideswell’s evidence noting the following matters:
(a)    Mr Tideswell said that he was focused on other injuries that required surgery and that his pain medication for those injuries may have masked the neck pain such that he did not seek treatment for the neck until mid-2020.
(b)    The Member accepted there was no complaint of neck symptoms recorded by Nepean Hospital, Dr Nadapalan, St Marys Doctors or Dr Bentivoglio but she thought it was important to bear in mind “that Mr Tideswell was not particularly concerned about his neck symptoms between 2 April 2019 and mid-2020, and it appears he first complained of right cervical pain on 25 June 2020 to his treating physiotherapist, Mr Bourke, with Mr Bourke thereafter including treatment of Mr Tideswell’s neck symptoms on a number of occasions.”[4]
(c)    There appeared to be no complaint of neck symptoms recorded by Park Lawn Medical Centre under whose care Mr Tideswell remained until 13 March 2021.
(d)    There appeared to be no complaint of neck symptoms recorded by Dr Rizkallah. The Member said it was important to remember that Dr Rizkallah was treating Mr Tideswell for his left knee injury and bilateral shoulder injuries and Dr Rizkallah accepted that Mr Tideswell’s left shoulder symptoms had initially been masked by his multiple other injuries.
(e)    No complaint of neck symptoms was recorded by Dr Ho. The Member noted that Mr Tideswell indicated on the “brief pain inventory” that one of the areas he felt pain in was his neck.
(f)    Mr Bourke noted in his report of 9 March 2023 that Mr Tideswell had come to right cervical nerve root sleeve block on 31 November 2020 (sic) under the care of Dr Ho.
(g)    Dr Van Niekerk did not initially record injury to the neck but on 7 November 2022 his notes included reference to the insurer not accepting Mr Tideswell’s neck complaints as resulting from the injuries of 2 April 2019. Dr Van Niekerk subsequently included injury to the neck in the certificates of capacity he issued for Mr Tideswell. Dr Van Niekerk subsequently reported “I do believe the work accident in April 2019 is a substantial contributing factor to his C spine injury.”[5]
(h)    In early November 2021 Mr Tideswell came under psychiatric care with Dr McQuillan. Dr McQuillan referred to Mr Tideswell suffering neck pain following the incident occurring on 2 April 2019.
(i)    On 8 November 2021 Dr Habib took a history which included Mr Tideswell hitting his right side head, neck and right arm and shoulder on 2 April 2019. The Member said Dr Habib accepted that Mr Tideswell had suffered injury to his neck in the incident occurring on 2 April 2019.
[4] T2 24.32–25.3.
[5] T2 26.11–13.
The Member noted that Dr Bentivoglio recorded that Mr Tideswell reported neck symptoms but that he could not find any diagnostic imaging relevant to Mr Tideswell’s cervical spine or clinical records of Mr Tideswell’s treating general practitioner which may demonstrate complaint of neck symptoms following the incident on 2 April 2019.
The Member said:
“However, in preparing his last supplementary report, Dr Bentivoglio had been provided with a cervical spine CT scan dated June 2023 and comment by Dr Van Niekerk dated 18July 2023, and provided opinion that without any symptoms present in the cervical spine for a period of two and a half years following the specific injury, there would not have been any damage that could have possibly produced the abnormalities described at the C5/6 level of his cervical spine. Dr Bentivoglio provided opinion that any injury that Mr Tideswell has in his cervical spine would be a constitutional condition.”[6]
[6] T2 27.13–24.
Dr Habib’s opinion was that Mr Tideswell suffered “severe aggravation injury [of] the asymptomatic cervical spinal changes, with referred but no verifiable radiculopathy”.[7] Dr Habib said that Mr Tideswell’s employment was a substantial contributing factor to the current condition.
[7] T2 26.34–27.2.
In rejecting Dr Bentivoglio’s opinion, the Member said:
“… I prefer the opinion of Dr Habib to that of Dr Bentivoglio because it is evident that Dr Bentivoglio has not had the opportunity, I don’t think, to review the MRI scan which is dated 11 January 2022, and he has not, I don’t think, considered the complaints of neck symptoms provided by Mr Tideswell to his treating physiotherapist Mr Bourke, the complaint of pain made by Mr Tideswell to Dr Ho, his treating pain management specialist, and the complaint made to Dr McQuillan. It appears to me then that Dr Bentivoglio has provided (his) opinion without considering those complaints to the treating specialists and the treating physiotherapist.”[8]
[8] T2 27.26–28.3.
The Member added further:
“While it may be true that Mr Tideswell made no complaint of neck symptoms until in or about June 2020, being over a year since he sustained multiple [injuries] on 2 April 2019, it is evident from Mr Tideswell’s evidentiary statement, the clinical records and the reporting of his treating general practitioners, his treating physiotherapist and his treating specialists that the initial primary focus was on Mr Tideswell’s other injuries, for which he came to surgical treatment, and for which Mr Tideswell was taking strong painkilling medication, which I accept may well have masked his neck symptoms. Such was accepted by Dr Rizkallah, relevant to Mr Tideswell’s left shoulder symptoms.”[9]
[9] T2 28.15–27.
The Member expressed her ultimate conclusion in the following terms:
“Following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Mr Tideswell has discharged the onus required of him, and I accept Mr Tideswell has sustained injury in the nature of an aggravation of an asymptomatic pre-existing disease in his cervical spine, and that his employment was the main contributing factor to injury. As required by the matter of Nguyen, I do feel an actual persuasion of the actual existence of that fact.”[10]
[10] T2 28.29–29.3, citing Nguyen v Cosmopolitan Homes New South Wales Limited [2008] NSWCA 246 (Nguyen).
The Member rejected the alternative case advanced by Mr Tideswell that as a result of the multiple injuries on 2 April 2019 he developed a consequential condition in his cervical spine.[11] There is no cross-appeal by the respondent seeking to disturb that finding.
[11] T2 29.5–19.

THRESHOLD MATTERS

There is no dispute the appeal was brought within 28 days of the making of the decision.
The claim by the respondent worker was for a 39% whole person impairment which included an assessment of 6% whole person impairment for the cervical spine. The lump sum compensation in respect of the cervical spine is submitted by the appellant to “clearly be in excess of $5,000”. The respondent submits: “There is no dispute that the appeal satisfies the monetary thresholds.”
The appellant submits that, in so far as leave is required, if leave is granted there is no requirement to satisfy the monetary thresholds contained in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In view of the concession of the respondent, I do not think it necessary to determine the correctness of this submission.
The thresholds contained in s 352(3) of the 1998 Act are satisfied.

INTERLOCUTORY

Section 352(3A) of the 1998 Act provides as follows:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The decision to refer the worker to the President for further referral to a medical assessor is interlocutory within the meaning of s 352(3A) of the 1998 Act.
The appellant submits that in so far as the liability dispute in relation to the cervical spine can only be resolved by the Commission, it follows that it is necessary and desirable for the proper and effective determination of the dispute for any appeal relating to that liability dispute to be determined before the respondent is assessed by a medical assessor.
The appellant submits that the inclusion of the cervical spine has the potential to significantly impact the respondent’s entitlements, noting that it may be the difference between an assessment above or below the highest needs thresholds. In the circumstances if leave were not granted the appellant would be prejudiced in its ability to defend any relevant impairment thresholds.
The respondent “accepts that whilst the decision is an interlocutory decision it is appropriate to grant leave for the appeal to proceed.”
It is not necessary that the appeal with respect to liability for the cervical spine be determined at this time however it is “desirable” for the proper and effective determination of the parties’ dispute for the reasons that follow.
Firstly, if an appeal against the Member’s determination that the respondent sustained injury to the cervical spine is successful after the medical assessment, then it would follow that further medical assessment on the basis that the cervical spine was excluded would be required.
Secondly, if this decision is the subject of an appeal to the Court of Appeal, that Court may be confronted with an interlocutory decision in so far as the medical assessment was based on the Member’s determination alone. Whereas if the liability appeal is determined now, the resulting determination, is a “final” determination in respect of which appeal lies to the Court of Appeal.
Thirdly, it is undesirable for the parties to be left with the prospect that even after the medical assessment has taken place the liability issue may be further agitated.

NATURE OF THE APPEAL

The jurisdiction provided by s 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. “The appeal is not a review or new hearing.”
It is important to appreciate that the appellant is required to establish error of fact, law or discretion. It is not enough to establish merely that other decision makers may have reached a different conclusion on the same materials.

ON THE PAPERS

The parties have submitted that the appeal can be determined on the basis of the written materials without the need for an oral hearing.
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.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to determine the matter “on the papers”, without holding any conference or formal hearing.

DISCUSSION

Ground 1 – The Member erred in fact finding that Dr Bentivoglio had not reviewed the MRI scan dated 11 January 2022 or the complaints of neck symptoms to Mr Bourke and Dr Ho

Appellant’s submissions

The appellant submits that contrary to the Member’s conclusion, Dr Bentivoglio had reviewed the evidence to which the Member referred.
The appellant quotes Dr Bentivoglio’s report of 16 August 2023[12] referring to the scan of 11 January 2022 and quotes the report including the following:
“The MRI scan was reported as showing mild to moderate multilevel cervical degenerative change more prominent at the C5/6 level.”[13]
[12] Application to Admit late Documents (AALD) dated 21 August 2023, pp 1–5.
[13] AALD dated 21 August 2023, p 2.

Further, the appellant submits that Dr Bentivoglio referred to the respondent’s neck complaints and his attendances with his treatment providers in the report of 29 August 2022.[14]
[14] Reply to Application to Resolve a Dispute (Reply), pp 10–22.
The appellant submits:
“… clearly Member Snell’s finding in relation to the material that was provided to Dr Bentivoglio was factually inaccurate. This was a significant error as it led the Member to reject Dr Bentivoglio’s opinion.
While Dr Bentivoglio was not supplied with the specific reports of Dr McQuillan, noting that she is a psychiatrist and the treatment was not for any orthopaedic injuries, the appellant submits that this is irrelevant. The Member’s basis for rejecting Dr Bentivoglio’s opinion was the general proposition that he was not aware of the cervical spine complaints made to the treatment providers or the pathology demonstrated on the scans. As submitted above, that is factually inaccurate and the error led to her rejecting Dr Bentivoglio’s opinion for which there was no basis.”[15]
[15] Appellant’s submissions 19 October 2023, [33]–[34].

Respondent’s submissions

The respondent submits:
“Dr Bentivoglio did not see the MRI scan. In his report of 16 August 2023 he merely says that he is aware that an MRI scan has been performed at Nepean Hospital which was said to show moderate multilevel cervical degenerative change more prominent on the C5/6 level. He did not say that he saw the scans and the Member was correct when she said that he did not review the scans. There is no mention of the specific finding of the MRI.”[16]
[16] Respondent’s submissions 24 November 2023, [3].
The respondent develops this submission by the observation that the Member was entirely correct to discount the opinion of Dr Bentivoglio because of his failure to address the specific finding of the MRI that there was a “subluxation”.
Further, Dr Bentivoglio’s opinion was discounted because of his failure to properly consider the evidence of the complaint of neck symptoms provided by the respondent to his treating physiotherapist, Mr Bourke, complaint of pain made by the respondent to Dr Ho, his treating pain management specialist, and the complaint made to Dr McQuillan.
The respondent notes that Dr Ho’s records included the pain inventory. Dr Ho undertook cervical nerve block injections. Dr McQuillan recorded a history of neck pain since the accident. Dr Bourke recorded neck pain in his pain questionnaire. He provided treatment to the neck which was paid for by the appellant. There was a history of increasingly persistent neck pain.
The respondent submits:
“The totality of that evidence supported an acceptance of the Respondent’s evidence that he had suffered from neck pain since the incident however it had seemed minor at the time, seemed to be related to the accepted shoulder injuries and was masked by the initially more serious injuries.”[17]
[17] Respondent’s submissions 24 November 2023, [11].
The respondent further submits that Dr Bentivoglio, whilst mentioning the fact of the treatment, did not at any time consider the significance of those matters. Dr Bentivoglio’s “theorem” was that because there was no recorded complaint of neck pain for some time, there was no neck pain and therefore any neck problem was unrelated to the incident. The respondent submits that the appellant’s case was that the Member would not accept that there were neck symptoms immediately following the accident. The Member found otherwise.

Appellant’s submissions in reply

In reply the appellant submits:
“The respondent[’s] submission misrepresents the state of affairs. Dr Bentivoglio clearly observed the MRI report dated 11 January …”.[18]
[18] Appellant’s submissions 15 December 2023, [4].
The appellant submits that the clinical history was extracted almost verbatim from the clinical information contained in the MRI scan report. It follows the doctor must have seen the MRI report.
The appellant submits that the respondent’s submission that the finding of the MRI scan of 11January 2022 was “evidence of trauma” (that is, the subluxation) was not supported by medical evidence and was without evidentiary foundation.
The appellant submits:
“At paragraphs 15 and 16, the respondent asserts that the appellant did not bring its case on the basis that the issue was to be decided by preference to the expert opinions but rather that its case was that there were no symptoms immediately following the accident. The respondent’s submission should be rejected as it attempts to mischaracterise the state of play. The appellant’s case was that there was a significant delay in symptomology, which was accepted by the Member, meaning that the Member could not be satisfied that there had been an ‘injury’ to the cervical spine on 2 April 2019. An injury of course being a physiological/pathological change in the neck/cervical spine. That proposition, as submitted by the appellant, was supported by Dr Bentivoglio.”[19]
[19] Appellant’s submissions 15 December 2023, [10], citing Military Rehabilitation and Compensation Commission v May [2016] HCA 19.

Application to rely on additional evidence (section 352(6) of the 1998 Act)

I deal firstly with the application to rely on the letter dated 19 July 2023.
Pursuant to s 352(6) of the 1998 Act, the appellant seeks to introduce into evidence a letter dated 19 July 2023 requesting a further report from Dr Bentivoglio. The appellant wants to rely on the list of documents sent to Dr Bentivoglio. The documents included “MRI scan dated 11 January 2022”. Dr Bentivoglio’s report dated 16 August 2023 responds to this letter.
The appellant submits that if it is unable to rely on the letter there would be “substantial injustice”.
The respondent submits:
“Pursuant to s 352(6) fresh evidence cannot be admitted 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 the failure to grant leave would cause substantial injustice in the case.
In this case the evidence can only be admitted if the failure to grant leave would cause substantial injustice.
Circumstances where fresh evidence can be admitted on appeal were considered in CHEP Australia Pty Limited v Strickland [2013] NSWCA 351. There is only a substantial injustice where the admission of the evidence would cause substantial injustice not when it only may cause injustice. That is that there is only substantial injustice where the admission of the evidence would result in a different outcome.”[20]
[20] Respondent’s submissions 19 January 2024, [4]–[6].
I decline to grant leave to rely upon the letter because in my view, for the reasons that follow, no substantial injustice to the appellant is caused by refusing to grant leave.
Firstly, the critical finding by the Member in relation to the MRI scan is that Dr Bentivoglio did not “review the MRI scan which is dated 11 January 2022”. Thus the Member focused on the absence of a review of the scan, not merely access to the report of the MRI scan.
Secondly, the conclusion that Dr Bentivoglio was provided with the report but not the scan itself is textually consistent with Dr Bentivoglio’s reports.
Without intending to be comprehensive, where Dr Bentivoglio viewed a scan he said so, for example in the report of 2 August 2019 Dr Bentivoglio said in dealing with the CT scan of the elbow “I viewed a CT scan taken of his elbow …”.[21] In relation to an MRI scan of the knee, Dr Bentivoglio said: “An MRI scan taken of his knee in June 2019 showed he had a complex bucket-handle tear of his medial meniscus.”[22]
[21] Reply, p 5.
[22] Reply, p 6.
Thirdly, the letter refers to “documents” being provided, and this is consistent with the scan itself not being available to be sent by the appellant’s solicitor. In the usual case the worker would have his investigations and this is the point made by Dr Bentivoglio in his report of 29 August 2022, where he says that Mr Tideswell had not brought his investigations with him.[23]
[23] Reply, p 15.
Fourthly, Dr Bentivoglio’s opinion was: “I do not believe from the documentation supplied to me that these degenerative changes have been aggravated by the specific incident at work.”[24] The opinion does not require the letter of instruction to understand its import.
[24] Reply, p 19.
Fifthly, Dr Bentivoglio says: “The MRI scan was reported as showing mild to moderate multilevel cervical degenerative change more prominent at the C5/6 level”[25] (emphasis added). But the point made by the Member was that Dr Bentivoglio did not have access to the MRI scan.
[25] AALD dated 21 August 2023, p 2.
In my view the letter of instructions would not result in a different outcome because, although the letter refers to Dr Bentivoglio being given the MRI scan (which I doubt) as distinct from the report, it is apparent from Dr Bentivoglio’s report of 16 August 2023 that he did not rely on the scan, rather he relied on the report.
The failure to view the scan was regarded by the Member as decisive. It follows that the letter of instructions would make no difference to the outcome.

Consideration Ground 1

I accept the appellant’s submissions that:
(a) the opinion of Dr Bentivoglio was not rejected by the Member on the basis that Dr Bentivoglio failed to address the specific finding of the MRI that there was a subluxation, and
(b) its case was not limited to the proposition that the Member would not accept that there were neck symptoms immediately following the accident.
The Member rejected Dr Bentivoglio’s opinion and preferred the opinion of Dr Habib because:
(a)    as discussed above Dr Bentivoglio did not view the MRI scan;
(b)    Dr Bentivoglio’s opinion depended on the proposition that there was no documented history of neck complaint proximate to the date of the events. But at the same time Dr Bentivoglio did not consider the complaints made to the physiotherapist Mr Bourke, the pain management specialist Dr Ho and to Dr McQuillan;
(c)    contrary to the appellant’s submission at [34], quoted above at paragraph [45], the Member did not reject Dr Bentivoglio’s opinion because he was “unaware” of the complaints made to the treatment providers. She said he had not “considered the complaints of neck symptoms provided by Mr Tideswell” to the treating providers (see the passage extracted at paragraph [20] above). The respondent’s submission paraphrased at paragraph [48] above is correct;
(d)    Dr Bentivoglio discounted the respondent worker’s explanation for the absence of complaint of neck symptoms until mid-2020 whereas the Member accepted Mr Tideswell’s explanations;[26]
(e)    the Member accepted that the strong painkilling medication consumed by the respondent masked his neck symptoms,[27] and
(f)    Dr Bentivoglio failed to have regard to Dr McQuillan’s report at all.
[26] See T2 28.15–27.
[27] See T2 28.26.
The Member was not satisfied that Dr Bentivoglio gave proper consideration to the respondent’s complaints to the treating providers. Furthermore, the Member accepted the evidence of Mr Tideswell in his statement as to the explanation for not seeking treatment at an earlier point of time with respect to his neck.
The Member was no doubt influenced by the cumulative effect of Mr Tideswell’s complaints and explanation to the treatment providers who consistently accepted that the neck condition was caused by the events of 2 April 2019. Dr Bentivoglio’s opinion to the contrary was weakened by the failure to refer to this material.
Although other decision makers may have reached a different conclusion, there is no error in the Member’s conclusion that Dr Bentivoglio’s evidence should be rejected.
Ground 1 of the appeal is not made out.

Ground 2 – The Member fell into jurisdictional error by failing to afford the appellant procedural fairness

Appellant’s submissions

The appellant submits that it was denied procedural fairness by the Member because:
(a) she rejected Dr Bentivoglio’s opinion on a basis not put forward by the respondent, and
(b) the Member failed to give the appellant an opportunity to address the basis for the rejection.
The appellant submits that at the hearing the respondent did not submit that Dr Bentivoglio’s opinion was not based on a fair climate by reference to the materials before him. It follows, so the appellant submits, that it was not required to address any such submissions or highlight the materials that were before Dr Bentivoglio for the purpose of submitting that his opinion should be preferred.
The appellant submits that the Member rejected Dr Bentivoglio’s opinion because he was not briefed with certain material, “essentially concluding that the doctor’s opinion was not based on a fair climate in the sense described in Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505.”[28]
[28] Appellant’s submissions 19 October 2023, [39].
The appellant submits that if it had been informed that the basis on which Dr Bentivoglio’s conclusions were made was in issue, it would have addressed that by providing the material with which Dr Bentivoglio was briefed so as to justify the opinion as to the existence of any injury to the cervical spine.

Respondent’s submissions

The respondent submits that this ground of appeal is without substance. He says:
“As explained above the Respondent had squarely put that Dr Bentivoglio’s opinion was deficient because of his failure to consider the finding of the MRI scan that there was a subluxation which was probably caused by trauma. That deficiency had been acknowledge[d] by the Appellant.”[29]
[29] Respondent’s submissions 24 November 2023, [18].
The respondent submits that the fundamental question of whether he should be accepted when he said that he had suffered neck pain since the accident was ultimately determined by the Member in the respondent’s favour. It naturally followed that Dr Bentivoglio’s opinion did not accord with the evidence.
The appellant did not make any submission in reply to the submission that Dr Bentivoglio had not properly considered the MRI scan and its finding of subluxation. The other material had all been referred to in submissions and the material supported the conclusion that there had been neck pain since the injury and accordingly there had been an injury. In reply the appellant did not address that material.
The only submissions in reply before the Member went to a Statement of Claim filed by the respondent in the District Court in respect of the same incident, and the issue of whether the pain in the neck could have been masked by other injuries. No submission was made with respect to the material from Mr Bourke, Dr McQuillan or Dr Ho. The appellant had the opportunity to be heard and chose not to take that opportunity. It cannot complain of a lack of procedural fairness.

Appellant’s submissions in reply

The appellant submits that Member Snell rejected Dr Bentivoglio’s evidence because it was evident that Dr Bentivoglio had not had the opportunity to review the MRI scan which is dated 11 January 2022. It is further submitted that the Member’s reason for rejecting Dr Bentivoglio’s opinion was that he had not had an opportunity to review the MRI scan. That is, he did not have it before him. That is a separate matter from rejecting the opinion because there was a failure to properly consider it.
The appellant submits that Dr Bentivoglio did possess the MRI scan and any suggestion to the contrary was not made by the respondent. The appellant submits it follows the Member fell into error of law by deciding the case in a manner not put by the respondent.
Furthermore, at no stage was it suggested by the respondent that Dr Bentivoglio’s opinion was deficient due to the doctor’s failure to properly consider all the treating records from the respondent’s treating providers. It follows that the appellant could not have made submissions in reply in that regard. The appellant submits that ultimately, the position that Dr Bentivoglio had not considered the treating medical evidence was not put by the respondent and to act on that conclusion was an error by the Member.
The respondent submits that the appellant did not make any submission to respond to its submission that Dr Bentivoglio had not properly considered the finding of subluxation on MRI. Ultimately, the appellant says this submission is irrelevant as Dr Bentivoglio’s failure to consider the report was not the basis of the Member’s finding. Dr Bentivoglio did not have anything to address in that there was no competing opinion before him that the pathology demonstrated on the MRI was a result of trauma. Indeed he concluded that the scan showed mild to moderate multilevel cervical changes more prominent in the C5/6 level. There was no contesting view to require Dr Bentivoglio to justify his conclusion given that Dr Habib’s report came before the MRI was taken. But it is noted that the MRI scan was only ordered in response to a possible thalamic stroke.

Consideration

The appellant’s complaint is that Dr Bentivoglio’s opinion was rejected on a basis not put forward by the respondent and that it was not given an opportunity to address the basis for the rejection of Dr Bentivoglio’s opinion.
The appellant cites Seltsam Pty Limited v Ghaleb[30] which concerned a trial judge’s departure from a position accepted by all of the parties as to the manner in which the appellant’s contribution to the respondent’s award of damages was to be calculated. It was a case in which the primary judge departed from the basis upon which the trial was conducted without notice to the parties.
[30] [2005] NSWCA 208; 3 DDCR 1 (Seltsam).
There was no agreed or common basis in the present matter in the sense considered in Seltsam. The respondent consistently submitted for various reasons that the opinion of Dr Bentivoglio should not be accepted. Acceptance or rejection of Dr Bentivoglio’s opinion was an issue before the Member in respect of which the parties were required to make submissions for their respective positions.
The issue of the MRI and the radiological investigation of the respondent’s neck complaint was plainly live between the parties. The appellant made extensive submissions about the issue before the Member[31] including the following:
(a) “Now, given this, the issue again is that as the time – at the time of the injury and for a long period afterwards there were no complaints in relation to the neck. You have before you, Member, a series of radiological investigations, these are all attached to the Reply and you will see that it was not until the 1st of January, 2022 that anyone had bothered to actually investigate the neck and it appears that the first radiological investigation in relation to that is … an MRI of the cervical spine.”[32]
(b) “I should say, just to be clear, I think that at that point there was an MRI that has been conducted and it suggests that Dr Bentivoglio did not have the benefit of that in examining – when making that conclusion. However … certainly up until January 2022 there was no investigation done in relation to the [respondent’s] neck.”[33]
[31] Transcript of proceedings 28 Aug 2023 (T1), T1 5.11–6.19.
[32] T1 5.11–20.
[33] T1 6.13–19.
There is no denial of procedural fairness where the appellant is given the opportunity to address the evidence and to make submissions why the evidence should be accepted. There is no doubt that the parties were given the opportunity to address and make their respective cases. There is no suggestion that the Member restricted or misled the appellant as to the submissions it wished to make concerning the evidence of Dr Bentivoglio. There was no obligation on the Member to do more than receive addresses and submissions in support of acceptance of Dr Bentivoglio’s report.
Paric v John Holland (Constructions) Pty Limited[34] concerned an entirely different area of discourse to what is involved in the present matter. The Member did not disregard Dr Bentivoglio’s opinion because his assumed history was different from the factual findings made by her on the materials. She rejected the opinion not because Dr Bentivoglio misapprehended the facts but because he did not accept Mr Tideswell’s evidence of complaint and did not view the MRI images.
[34] [1984] 2 NSWLR 505.

Ground 2 of the appeal is dismissed.

Ground 3 – The Member erred in law in relation to her findings that the respondent sustained an injury to the cervical spine

Appellant’s submissions

The appellant submits that the Member addressed the wrong question when dealing with the issue of whether or not the respondent sustained an injury to the cervical spine.
The appellant submits that in accepting the evidence of Dr Habib that the respondent had sustained a severe aggravation injury of the asymptomatic cervical spinal changes with referred but non-verifiable radiculopathy, the Member was determining the issue of injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The appellant submits that the Member’s determination of the issue of injury incorrectly focused on the existence of symptomatology and a justification for the delay in the respondent seeking neck treatment. While a delay in symptoms and treatment is relevant to the ultimate finding of injury, the Member incorrectly found that the justification translated to an affirmative finding that the respondent had sustained injury on 2 April 2019.
The appellant submits:
“To the contrary, the determination of the issue of injury required the Member to grapple with whether or not the respondent actually sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical condition on 2April 2019, noting that she had found that the respondent did not develop symptoms nor seek treatment until much later.
The determination of whether or not the respondent satisfied s 4(b)(ii) of the [1987 Act] also required the Member to be satisfied that the cervical spine was injured in the course of the respondent’s employment on 2April 2019. Again, the Member’s discussion regarding symptomology and its delay did not address this issue. While there was no issue that a staircase collapsed and the respondent sustained a number of injuries on 2 April 2019, the Member was required to address whether the neck was injured during that event, which required her to grapple with the factual dispute regarding the mechanism of injury.”[35]
[35] Appellant’s submissions 19 October 2023, [47]–[48].

Respondent’s submissions

The respondent submits that the appellant chose to run the case on the basis that the question of injury was to be determined by whether or not there was neck pain following the accident. The submissions made went solely to that issue.
The appellant now seeks to argue that the injury was one under s 4(b)(ii). This proposition was never put to the Member and it was not the basis on which the claim was made. The respondent’s case was that there was a frank injury occasioned by the accident. While the medicine may indicate the aggravated disease condition, the injury did not solely consist of the aggravation of an injury and therefore the disease provisions did not apply. The claim relied correctly upon s 4(a) of the 1987 Act. As s 4(b)(ii) was never raised there was no obligation for the Member to refer to it or consider it. In any event it was irrelevant.
The respondent submits:
“The case had been run by both parties on the basis that the issue was determined by a finding whether the Respondent was to be accepted when he claimed to have had neck pain since the accident. No submission was made that the Member had to then consider any other matter. In those circumstances the Appellant cannot now complain that the Member did not do something that she was never asked to do.”[36]
[36] Respondent’s submissions 24 November 2023, [32].

Appellant’s submissions in reply

The appellant submits in reply that the respondent relies on Federal Broom Co Pty Limited v Semlitch[37] at paragraph [27] of its submissions. The appellant submits that Semlitch was in relation to the finding of injury pursuant to s 4(b)(ii) of the 1987 Act and concludes that “[m]ere symptoms of pain cannot establish the necessary physiological change”.[38]
[37] [1964] HCA 34 (Semlitch).
[38] Appellant’s submissions 15 December 2023, [19], citing Li v Fusun International Pty Limited [2023] NSWPIC 523, [208].
The appellant submits that Member Snell’s reasons show that she clearly determined the matter pursuant to s 4(b)(ii), quoting the transcript of reasons at T2 28.30. From that passage the appellant submits that the reference to AV v AW[39] is irrelevant in cases brought under s 4(a) of this Act.
[39] [2020] NSWWCCPD 9.
The appellant submits:
“While the test of main contributing factor is more stringent than the test of substantial contributing factor, the substantial contributing factor test requires consideration of s 9A of the [1987] Act and the relevant considerations within that provision. There is an absence of any consideration in the Member’s reasons. This is an error or law, noting also that the respondent’s case was not brought pursuant to s 4(b)(ii), which was the basis for the Member’s determination. To the extent that this is inconsistent with the appellant’s initial submissions, the appellant adopts paragraph 30 of the respondent’s submissions.
Regardless, the crux of the appellant’s submissions under this ground remain relevant. That is, the Member’s determination of the issue of ‘injury’ incorrectly focused on the existence of symptomology and her justification for the delay in the respondent seeking neck treatment. While the delay in symptoms and treatment is relevant to the ultimate finding of injury, the Member incorrectly found that that justification translated to an affirmative finding that the respondent had sustained an ‘injury’ on 2 April 2019.”[40]
[40] Appellant’s submissions 15 December 2023, [24]–[25].

Consideration

This ground of appeal fails on the initial premise that the Member determined the matter on the basis of an injury under s 4(b)(ii). The Member plainly did not do that.
The Member found that Mr Tideswell had sustained injury in the nature of an aggravation of an asymptomatic pre-existing disease of his cervical spine and that his employment was the main contributing factor to the injury.[41] That is a frank injury to a diseased portion of the body.[42]
[41] T2 28.30.
[42] Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648.
Ground 3 of the appeal is rejected.

Ground 4 – The Member erred at law by failing to provide sufficient reasons in relation to her determination that the respondent sustained an injury

Appellant’s submissions

The appellant notes that the 1998 Act provides in s 294(2) for the requirement that the Member is to provide a brief statement of reasons, and that r 78(2) of the Personal Injury Commission Rules 2021 requires the Member’s reasons to set out:
(a)    his or her findings on material questions of fact, referring to the evidence or other material on which those findings were based;
(b)    the Member’s understanding of the applicable law, and
(c)    the reasoning process that led to the Member’s conclusions.
The appellant sets out observations from Pollard v RRR Corporation Pty Ltd.[43]
[43] [2009] NSWCA 110.
The appellant submits that, “[m]ore specifically, having accepted Dr Habib’s opinion that the respondent suffered a severe aggravation of asymptomatic cervical spinal changes by way of a neck strain on 2 April 2019, the Member had to adequately explain how neck symptoms apparent in mid-2020 related to an incident on 2 April 2019.”[44]
[44] Appellant’s submissions 19 October 2023, [54].
The appellant says that while the Member justified the delay in symptomatology by way of accepting the respondent’s evidence that the focus initially was on his other injuries and he was taking strong painkilling medication, the Member’s reasons lacked any explanation as to how she resolved the significant discrepancy regarding the alleged mechanism of injury.
The appellant submits that “the appellant’s case involved a factual contest as to the mechanism of injury. It clearly relied on the reports of Dr Bentivoglio and the statement of claim filed by the respondent against W B Jones Staircase and Handrail Pty Ltd.”[45]
[45] Appellant’s submissions 19 October 2023, [57].
The appellant refers to Dr Bentivoglio’s report of 16 August 2023 quoting the history and Dr Bentivoglio’s observation:
“I have seen Mr Tideswell on two separate occasions. On both occasions I dictated the report in front of Mr Tideswell in relation to the history of injury. On neither occasion did he indicate or report to me that he was hit on the head and did not advise me of any neck symptoms until my second consultation with him three years following my initial consultation with him …
Mr Tideswell did not advise me that he struck his head or right shoulder region. It would appear from his local doctor’s notes that at the time that he only had an injury to his right arm. Certainly, Mr Tideswell never advised me during either of the consultations that he was struck on either the head or neck by the collapsing staircase.”
The appellant submits furthermore that the Statement of Claim did not allege injury to the neck.
The appellant says that none of the respondent’s treating providers indicated that the landing fell onto his head or neck.
The appellant’s submission is:
“In the appellant’s submission, it was evident that not only was the delay in any symptomology and treatment of the cervical spine a major aspect of its case but so too was the assertion that the alleged mechanism of injury was inconsistent with the histories recorded by the respondent’s treatment providers and Dr Bentivoglio.
The Member’s reasons do not grapple with the inconsistency and are therefore insufficient to explain the basis for her determination. In the appellant’s submission, this is an error of law by failing to give proper and lawful reasons.”[46]
[46] Appellant’s submissions 19 October 2023, [62]–[63].

Respondent’s submissions

The respondent submits that the appellant chose to run its case on the basis that the issue was determined by a finding that there had been neck pain following the accident. The appellant submits there were no submissions that this was a s 4(b)(ii) injury so no explanation was needed in respect of any matter under that section. The appellant submitted that it was a frank injury.[47]
[47] T1 4.23–25.
The respondent submits that the factual dispute was whether to accept the respondent’s evidence that he had in fact suffered neck pain since the accident. The evidence was accepted so there was no issue about delay in the onset of the symptoms. Accordingly, none of the matters referred to in paragraphs [54]–[63] of the appellant’s submissions arose. In particular, there were no submissions made by the appellant with respect to the mechanism of injury or histories of whether there was a blow to the head and neck in the incident. The respondent’s evidence was that there was a blow to the head. The appellant’s case was as follows:
“It is clear, therefore, that as Dr Bentivoglio suggests there is a lack of evidence that there were complaints that were in relation to the neck that were contemporaneous and could confirm that as the plaintiff put his case there was a frank injury in relation to the neck.”[48]
[48] Respondent’s submissions 24 November 2023, [38], citing T1 8.1–6.
The respondent submits that the issue as stated by the appellant was the issue determined by the Member and that her reasons are clear and deal with all of the issues raised by the parties, the appellant in particular.

Appellant’s submissions in reply

The appellant submits in reply that the parties made submissions addressing the inconsistency between the reported mechanism of injury and the contest in the history between Dr Bentivoglio and the alleged mechanism of injury as stated by the respondent which was adopted by Dr Habib.[49] Further, the appellant submits that it raised the inconsistency as to the reported injury contained in the respondent’s own Statement of Claim.
[49] T1 16.24.

Consideration

The first matter to note is that the history obtained in Dr Bentivoglio’s report and that contained in the Statement of Claim was not evidence accepted by the Member. The Member accepted the worker’s history contained in his statements.
The transcript at T1 16.24 referred to by the appellant in its submissions in reply is a passage from the submissions of counsel for the worker in which counsel points out that the passage from Dr Bentivoglio’s report that Mr Tideswell did not advise him that he struck his head, etc., was contradicted by what Mr Tideswell said in his statement and what he told Dr Habib. The conclusion submitted by counsel for the respondent at the hearing before the Member was as follows:
“So if one accepts the proper description of how the injury happened then Dr Bentivoglio’s reasoning for discounting the accident falls by the wayside. …”.[50]
[50] T1 17.8–10.
It is plain that the Member preferred Mr Tideswell’s description to that contained in Dr Bentivoglio’s reports.
Furthermore, accepting Dr Bentivoglio’s statement as an accurate statement of what he was told by the respondent, at its highest, this would mean the respondent did not give Dr Bentivoglio the same history as he gave the Member and Dr Habib. That is a matter which may bear on acceptance of the respondent’s evidence by the Member. However, the Member was aware of the “inconsistency”, it was addressed by the respondent’s counsel and notwithstanding, the Member preferred Mr Tideswell’s evidence. That does not demonstrate error on the part of the Member. It merely demonstrates a determination by the Member to prefer the respondent’s statement evidence to that recorded by Dr Bentivoglio.
The transcript of the submissions at pages 24 to 25 is difficult to understand because the recording appears to have been incomplete. The point which seems to be made is that there is no reference in the Statement of Claim to the injury to the neck.
There is a reference in paragraph [12(e)] of the Statement of Claim to such further injuries as are specified in the particulars. Mr Tideswell’s statement includes a statement of his disabilities[51] which explicitly makes reference to the neck. Assuming, as seems likely, that the disabilities were similarly set forth in the particulars filed with the Court in support of the Statement of Claim, there would be a reference to pain in the neck.
[51] ARD, p 9, [50].
Whatever the correct position may be, the Member dealt with the issue of the Statement of Claim in the following terms:
“While it may be that in his statement of claim filed with the District Court on 19 November 2021, the particulars of injury do not include injury to the neck, I do not consider anything turns on this, particularly so as the particulars provide for such other further or other injuries as are specified in the statement of particulars filed in these proceedings, and are updated from time to time, and the referred statement of particulars are not in evidence.”[52]
[52] T2 28.5–13.
There is no error in the manner in which the Member dealt with the absence of a complaint of injury to the neck in the Statement of Claim. There does not appear to me to be any submission that the Statement of Claim indicated a mechanism of injury that did not support the alleged injury to the neck or that was inconsistent with the mechanism of injury contained in the respondent’s evidence.
Furthermore, as the appellant articulated in the submissions, the respondent’s case was that the respondent has suffered a frank injury on 2April 2019.[53]
[53] T1 4.25.
Counsel for the appellant said at the hearing that there was an issue with how the matter was pleaded but this related to the issue of “frank injury” or “consequential injury”.[54] Later counsel says, “it is necessary to be able to explain what actually was causative of the injury to the neck”,[55] but this is developed by reference to paragraph [10] of the respondent’s statement which is Mr Tideswell’s partial explanation for a lack of complaint at an earlier point in time. There is no development of any submission with respect to the mechanism of injury.
[54] T1 3.17.
[55] T1 3.30–32.
Later, counsel for the appellant says this:
“… That’s certainly – we say the medical evidence or the evidence that the [respondent] is relying on in his case seems to suggest that it is actually a frank injury and it is not a consequential injury.
Now, given this, the issue again is that as at the time … of the injury and for a long period afterwards there were no complaints in relation to the neck. You have before you, Member, a series of radiological investigations, these are all attached to the Reply and you will see that it was not until the 1st of January, 2022 that anyone had bothered to actually investigate the neck and it appears that the first radiological investigation in relation to that is once an MRI of the cervical spine.”[56]
[56] T1 5.5–20.
The appellant did not submit that the mechanism of injury to the neck was in issue. The issues raised were whether, given the absence of complaint at or about 2 April 2019, the neck was injured at all and whether, in the event the Member was against the appellant on that issue, the injury was a frank or consequential injury.[57]
[57] See T1 3.28.
The adequacy of the reasons provided is to be judged by reference to the issue to be determined by the Member. Here the issue to be determined is whether the respondent sustained injury to the neck on 2 April 2019 and, in the event the Member found the neck was injured, was that a frank or consequential injury. The Member adverted to and considered the evidence relevant to these issues and had regard to the standard of proof to which she was required to be satisfied of as a matter of legal principle[58] and articulated in clear terms her path of reasoning.[59]
[58] Nguyen.
[59] See T2 27.25–29.20.
Ground 4 of the appeal is dismissed.

Ground 5 – The Member erred at law by rejecting Dr Bentivoglio’s opinion for reasons for which there was no foundation

Appellant’s submissions

The appellant submits that there was no medical evidence to support the conclusion that the pathology on the MRI was a traumatically caused lesion. With respect to paragraph [9] of the respondent’s submissions dated 13 December 2023, the appellant submits “it is plainly wrong to suggest that the appellant placed ‘no reliance’ on Dr Bentivoglio’s report dated 16 August 2023. The appellant clearly relied on the opinion of Dr Bentivoglio contained in each of his reports.”[60]
[60] Appellant’s submissions 15 December 2023, [31].
Furthermore, as he is medically trained to do, Dr Bentivoglio gave the opinion that the MRI scan from January 2022 demonstrated degenerative changes in the cervical spine. There is no opinion to the contrary from any expertly qualified person.
The respondent’s submissions of 13 December 2023, at paragraph [10], also misstate the contents of Dr Bentivoglio’s reports. To suggest that Dr Bentivoglio was provided with a document or documents and that he referred to those documents but did not have regard to them is nonsensical.

Respondent’s submissions

The respondent submits that the appellant made no submissions with respect to Dr Bentivoglio becoming aware of the MRI scan. This was despite the respondent having made specific submissions concerning the significance of the findings which were consistent with a traumatically caused lesion.
The appellant thereby conceded at the hearing before the Member that Dr Bentivoglio’s opinion was made without the benefit of the MRI scan. The appellant cannot at this stage complain that the Member accepted that position.
The report of 2 August 2019 makes no mention of the other complaints or the MRI. The report of 29 August 2022 makes no comment about the MRI findings or that he had seen it. No reliance was placed on the report of 16 August 2023 and in any event, Dr Bentivoglio says it was reported as showing degenerative change.

Consideration

I accept that there was no medical evidence to support the proposition that the pathology on the MRI was a traumatically caused lesion. However, that is not the point of the Member’s findings with respect to Dr Bentivoglio.

The Member’s findings with respect to Dr Bentivoglio are that he did not have the scan as distinct from the reports. That was a weakness in Dr Bentivoglio’s opinion, but the real difficulty with Dr Bentivoglio’s scenario was that the Member preferred the evidence of Mr Tideswell that he had neck pain sufficiently proximate to the events of 2 April 2019 to permit a conclusion that the neck injury was sustained in those events.
Ground 5 of the appeal is dismissed.

Ground 6 – The Member erred in law by accepting the opinion of Dr Habib with no foundation in doing so

Appellant’s submissions

The appellant’s submissions with respect to this ground are:
“There is no question that Dr Bentivoglio and Dr Habib had differing opinions regarding the alleged neck injury. It can be inferred that rejection of one would result in acceptance of the other.
It follows that Dr Habib’s report must have been accepted by the Member on the basis that it was not marred by the same purported deficiencies as Dr Bentivoglio’s reports. As previously submitted, any such finding or inference is not supported by the evidence and therefore amounts to an error of law.”[61]
[61] Appellant’s submissions 15 December 2023, [34]–[35].

Respondent’s submissions

The appellant seeks to argue that the report of Dr Habib was accepted because he had access to the MRI and the physiotherapist’s notes.
The Member did not put that as the reason to accept Dr Habib. What she did was give reasons for rejecting Dr Bentivoglio’s opinion because he failed to properly consider certain material. Dr Habib did not have to refer to that material because his opinion was consistent with it.

Consideration

This ground of appeal does not appear to me to raise any fresh grounds that are not previously dealt with. Dr Bentivoglio’s report was rejected.
As the appellant observes, Dr Bentivoglio and Dr Habib had differing opinions regarding the alleged neck injury. Correctly, the appellant submits “[i]t can be inferred that rejection of one would result in acceptance of the other”.[62]
[62] Appellant’s submissions 15 December 2023, [34].
There is no material in support of this ground of appeal different from that which has previously been dealt with. The ground of appeal is accordingly dismissed.

CONCLUSION

The appellant has failed to demonstrate error on the part of the Member. The appeal is dismissed.

DECISION

Pursuant s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 grant leave to the appellant to appeal.
Grant the appellant leave to rely on additional grounds 5 and 6 of the appeal.
Dismiss the appeal.
The Member’s Certificate of Determination dated 21 September 2023 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

5 August 2024