Coolamon Shire Council v Hillier - [2024] NSWPICPD 67

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	COOLAMON SHIRE COUNCIL V HILLIER [2024] NSWPICPD 67
APPELLANT:	Coolamon Shire Council
RESPONDENT:	Letitia Hillier
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W3323/23
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	23 October 2024
ORDERS MADE ON APPEAL:	1. The application under s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 for the Commission to receive fresh evidence, or evidence in addition to or in substitution for the evidence received before the Member, is rejected. 2. The Certificate of Determination dated 14 August 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 in relation to factual findings; application for fresh evidence under s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 and principles in CHEP Australia Ltd v Strickland [2013] NSWCA 351
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Perry, counsel
Kemp & Co Lawyers
Respondent:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Hillier v Coolamon Shire Council (W3323/23, 14 August 2023)
MEMBER:	Mr R Perrignon
DATE OF MEMBER’S DECISION:	14 August 2023

INTRODUCTION AND BACKGROUND

Letitia Hillier (the worker) was diagnosed as suffering a rheumatoid arthritis (RA) condition in May 2017. She commenced employment as an assistant in nursing at an aged care facility run by the Coolamon Shire Council (the appellant) in February 2021. On 30 September 2021 she sustained a compensable injury to her left knee in the course of that employment. It is not in dispute that on or about Monday, 23 January 2022, she tripped down stairs at home, suffering an inversion injury to her right ankle, and that this injury occurred as a result of the above compensable injury to her left knee.
The orthopaedic surgeon treating the worker’s right ankle, Dr Angela Hatfield (Dr Hatfield), wrote to StateCover Mutual Limited (the insurer) requesting approval to carry out surgery she proposed to treat the worker’s right ankle condition. On 19 October 2022, the insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for that surgery on the basis of a forensic report dated 4 October 2022 from Associate Professor Paul Miniter (Dr Miniter), orthopaedic surgeon. The main reason the insurer gave for this decision is that Dr Miniter did not find a relevantly significant problem with the right ankle and that the RA needed to be addressed before the worker underwent any surgical treatment.[1]
[1] Reply to Application to Resolve a Dispute (Reply), p 2.
The worker lodged an Application to Resolve a Dispute (ARD) in this Commission claiming medical, hospital and related expenses with respect to the proposed surgery under s 60 of the Workers Compensation Act 1987 (the 1987 Act). The matter came to a hearing before the Member who, in a decision delivered orally on 11 August 2023 and confirmed in a Certificate of Determination dated 14 August 2023, found the appellant liable to pay the worker’s costs of and associated with the surgery recommended by Dr Hatfield, namely, right ankle lateral ligament reconstruction, medial tibial nerve neurolysis through the tarsal tunnel, and tibialis posterior tendon (TPT) decompression. The appellant appeals against that decision, including an extempore decision on 10 August 2023 to reject the admission into evidence of a further report from Dr Miniter dated 13 July 2023.

ON THE PAPERS AND THRESHOLD MATTERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides that the Commission may exercise functions under that Act without holding any conference or formal hearing if satisfied that sufficient information has been supplied. Having regard to Procedural Directions PIC2 and WC3; and the documents and submissions before me, I am satisfied I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing.
There is no dispute that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The evidence comprised the ARD and Reply (with attached documents), and an application by the appellant to admit late documents (with attached documents) dated 24 July 2023 (AALD). It is unnecessary to otherwise summarise the evidence here. This will be done in detail mainly in the context of summarising the Member’s reasons. Given the issues and nature of the evidence, I believe this approach will be more helpful in analysing whether any error of fact or law has occurred. There is no criticism by either party about the content or adequacy of the Member’s summarising of the evidence.

THE MEMBER’S REASONS

As to the decision on 10 August 2023 about Dr Miniter’s 13 July 2023 report (the July 2023 report)

The Member noted the appellant says there was time, between the filing of the report on 24 July 2023 and the hearing on 10 August 2023, for the worker to obtain a report in response. He noted the worker’s submission that she would need to obtain expert evidence in reply to the July 2023 report, and this would require an adjournment.
The Member noted “[t]he rules governing the litigation in this Commission” were designed to ensure that all evidence on which the parties intend to rely is filed at the outset.[2] He also noted the July 2023 report commented on the clinical notes of the treating rheumatologist, Dr Jayaweera, in particular on 8 March 2023, when that doctor noted the presentation looked like RA involving the worker’s six large joints, including the ankles.
[2] Transcript of proceedings of 10 August 2024 (T), T 4.7–17.
The Member then noted Dr Miniter opining, based on Dr Jayaweera’s reports, that the discontinuance of anti-rheumatoid drugs had been the predominant reason the worker had ongoing right ankle issues, there had been “some slight improvement in the overall function as a result, presumably because of the early onset of those drugs”,[3] and the treatment should be allowed to take full effect before any surgery.
[3] T 6.17–19.
The Member noted the appellant’s submission as to Dr Miniter’s opinion about the worker having long-standing RA, including involvement of both ankles, based on Dr Jayaweera’s reports, and that there is evidence of subtalar inflammatory change, which is very common in RA, and so the worker’s ankle injury is “not an injury”.[4] The Member also notes the appellant’s submission that Dr Miniter opines that Dr Hatfield would not regard the initial treatment recommendations as appropriate if she were given the opportunity to review the matter.
[4] T 6.33.
The Member then quoted this final sentence of Dr Miniter’s July 2023 report: “In simple terms this lady has a significant problem with inflammatory disease which should settle at least to some extent with the reinstitution of drugs upon which she remains dependent”. He then accepted the appellant’s submission that the opinion within the July 2023 report was “certainly relevant as to the issues for my determination …”.[5]
[5] T 7.16–23.
The Member accepted the worker’s submission that if the July 2023 report was allowed into evidence, she would be entitled to an adjournment to obtain expert evidence from Dr Gehr and “perhaps other expert evidence in reply”. After the worker objected to this course, the Member referred to the principles relating to efficient conduct of the proceedings in the Commission, and the “significant prejudice to the worker in having the proceedings unnecessarily prolonged”. He then rejected the tender.

As to the final decision on 11 August 2023

The Member set out the principles, firstly in relation to determining if medical treatment is reasonably necessary as a result of a work injury in Diab v NRMA Limited,[6] and secondly in relation to causation in Murphy v Allity Management Services Pty Ltd.[7] It is unnecessary to outline those principles here as there is no dispute that the Member correctly identified them (at [8]–[11] of his reasons).
[6] [2014] NSWWCCPD 72 (Diab).
[7] [2015] NSWWCCPD 49 (Murphy).
The Member summarised the worker’s statement, noting she stated she was diagnosed with RA in 2018, but pointed out that the medical evidence suggested this was in May or June 2017. He also noted her statement that the RA did not affect her ability to carry out her work duties.
The Member observed that on 23 January 2022 the worker said she lost her balance and tumbled down the stairs at home when her right ankle rolled from underneath her, feeling immediate pain and seeing swelling, and thinking she must have fractured her ankle.[8] He noted she said she consulted Dr Yanagisawa a general practitioner (GP) at the Coolamon Regional Medical Centre (the medical centre), with respect to her right ankle pain (on 25 January 2022), and was referred to physiotherapy, x-ray and ultrasound of her right foot and ankle.
[8] Transcript of oral reasons of 11 August 2024 (reasons), [14].
The Member noted Dr Duncan, radiologist, reported that he saw swelling around the lateral malleolus “in keeping with the recent injury”. The Member then surmised that the “scans … were consistent with a recent ankle injury on 23 January 2022”.[9] He also noted Dr Duncan’s 2 May 2022 report including: “There are features consistent with previous ankle injuries, as also noted on the previous x-rays [sic] series … includes evidence of a degree of current medial ankle impingement.”[10]
[9] Reasons, [16].
[10] Reasons, [18].
The Member noted “a physiotherapist’s report of 28 January 2022”, indicating the fall had occurred the previous Monday,[11] that a brace was provided and that the worker was still walking with crutches. He also noted that the worker consulted Dr Yanagisawa on 3 June 2022, the doctor had recalled the worker for “MRI right foot ankle – new medial foot impingement”, and that the doctor then noted that a rheumatological review was advised in the context of known RA.
[11] Report of Maria Amjed, ARD, p 146.
The Member noted that Dr Hatfield saw and examined the worker on 28 June 2022, when she was said to be still troubled with medial ankle pain and lateral instability on a daily basis and needed to wear an ankle brace to work. The Member said it was “a reasonable inference” that this was the ankle brace provided by the physiotherapist on 28 January 2022, and that it was provided to treat instability of the right ankle. The Member also noted that on examining the worker’s right ankle, Dr Hatfield elicited a positive Tinel’s sign over the tibial nerve, that the MRI showed talar bone and marrow swelling and the doctor recommending a further MRI and reassessment, but that ankle stabilisation surgery with tarsal tunnel release may be needed.[12]
[12] Reasons, [22].
The Member noted Dr Hatfield reassessed the worker on 21 July 2022 when she noted that the worker was still troubled by significant functional instability and “a strongly positive Tinel’s [sign] along her tibial nerve on the medial side and tenderness along her [TPT]”.[13] He also noted Dr Hatfield’s comment that “her injury was too severe to recover successfully without surgery”, and that the worker stated that at that stage, she was “desperate” for pain relief and “continues to struggle with extreme pain and altered gait”.[14]
[13] Dr Hatfield’s report, ARD, p 38.
[14] Reasons, [23]–[24].
The Member noted Dr Hatfield’s report of 15 August 2022, by completing a questionnaire requested by the insurer, including the opinion that if Ms Hillier had not injured her ankle, she would not now require the surgery that she does require, and that the expected benefits of the surgery were “stability and recovery of ankle function”. He further noted that the questionnaire asked whether the worker had tried conservative treatment, to which Dr Hatfield replied, “she has done this for six months”.[15]
[15] Reasons, [25].
The Member then considered Dr Miniter’s forensic reports of 4 October 2022 and 31 May 2023, firstly observing that Dr Miniter noted the RA history, for which medication had been taken in the past, and which the worker had ceased of her own volition before the left knee injury on 30 September 2021. He then noted Dr Miniter’s history of the worker continuing to work two weeks after the left knee injury, seeing her GP, then being off work for six months because “she could not function”, and that after Dr Miniter asked her whether she “felt it was her rheumatoid status … she nodded in affirmation” (quotes from Dr Miniter’s report). The Member said this “was, of course, a matter for expert evidence”.[16]
[16] Reasons, [28].
The Member took into account Dr Miniter’s note of “a second injury two weeks after the first” commenting that this history did not accord with the date of injury to the right ankle, and that Dr Miniter did not mention any injury to the right ankle, let alone engage with the detail of any such injury, nor the immediate emergence of right ankle symptoms. He also noted Dr Miniter’s surprise at a recommendation for surgery in the absence of anti-rheumatoid medication and in the context of “extensive physiotherapy”.[17]
[17] Reasons, [29].
The Member said that Dr Miniter’s notes on examination of the right foot and ankle did not “demonstrate severe features of rheumatoid disease though there is irritation in the subtalar joint and normal movement of the ankle”. He also noted Dr Miniter’s finding of no pain over the TPT, that the doctor considered the ankle to be stable, and also Dr Miniter’s note of some swelling over the medial aspect of the ankle.
The Member then noted Dr Miniter’s opinion that “the ongoing effects of this matter are largely those of her poorly-controlled [RA]”, and that he advised against the surgery and that the worker should see Dr Jayaweera, give up smoking, and lose weight if possible.
The Member noted Dr Miniter’s opinion that the lateral ligament was stable to clinical examination, the tibial nerve was not involved, and if there was any synovitis around the TPT he suspected this “is due to [RA] which should be controlled by medical means and not by surgery”, and he “would withhold surgery for the moment”.
The Member then considered[18] the evidence in the forensic report (dated 11 January 2023, requested by the worker’s solicitor) by Dr Eugene Gehr, orthopaedic surgeon. He noted Dr Gehr had been given a copy of Dr Miniter’s 2022 report, and also a report from Dr Jayaweera dated 26 June 2018. He said it followed that Dr Gehr was well aware of the RA history, and the ceasing of medication for it prior to the injury. He noted Dr Gehr had considered the radiological scans and took a detailed history of the right ankle inversion injury on 23 January 2022, and that the worker reported to him that she had instability of her right ankle, with difficulty going down steps.
[18] From reasons, [34].
The Member also noted that Dr Gehr observed swelling to the lateral aspect of the right ankle, a positive result on inversion stress testing, and swelling of the tibialis posterior on the right side – and, like Dr Hatfield, also elicited a positive Tinel’s test over the tibial nerve. The Member also noted the worker reporting ongoing pain over the lateral aspect of her right ankle with periods of instability, and the doctor’s examination finding of a decreased range of right ankle and hind foot motion with anterior and inversion instability.[19]
[19] Reasons, [36].
The Member noted that Dr Gehr said his findings were similar to those of Dr Hatfield, and that he agreed the proposed surgery was “appropriate after failed non-operative management”, and thought the proposed surgery was “her best chance of having her symptoms reduced and to address the pathology identified in the right foot and ankle …”.
The Member observed that Dr Gehr also addressed Dr Miniter’s report, commenting that while it was a good idea in general to give up smoking and to reach an ideal body weight, the worker had “well-defined pathology which needs to be dealt with by the recommended surgery”. He disagreed “that the tibial nerve is not involved” and “found a clear pathology relating to the tibial nerve with a positive Tinel’s test and area of numbness over the medial aspect of the foot … also found synovitis and swelling over the area of [the TPT] which … should be dealt with by surgery …”. He also noted Dr Gehr thought that the RA “plays little if any part in her defined injuries”.
The Member then considered Dr Miniter’s 31 May 2023 report, noting Dr Miniter had been given the reports of Drs Gehr and Hatfield and the worker’s statement before reporting. He said Dr Miniter noted the worker had recommenced the RA drugs two months previously, she had noticed improvement, and, contrary to the findings of Dr Gehr, Dr Miniter said that she had given no history of peroneal or TPT symptoms.
The Member noted the worker told Dr Miniter of persistent pain in the subtalar joint, with the doctor also noting that the most recent MRI scan showed swelling of that joint, and that he could not identify any convincing features of TPT or other major pathology, he thought the presentation might then be explained by chondral damage, and suspected an up-to-date scan would reveal relative dissolution of the sub-talar swelling and that synovitis of the posterior subtalar joint was “a very common presentation in rheumatoid patients”.
The Member noted Dr Miniter believed there were no major issues of the right hind foot except subtalar synovitis or arthritis which was unrelated to the knee injury, and that he recommended a further MRI scan to determine whether there was persisting synovitis or retro-patellar chondral damage – also noting the worker had not restarted medications when seen by Dr Gehr in January 2023.
The Member also noted that Dr Miniter thought that surgery was inappropriate without further investigation and considered the state of right ankle was entirely due to RA.
The Member then noted that Dr Amir, another GP at the medical centre, referred the worker to the rheumatologist, Dr Jayaweera on 24 November 2021, and inferred that Dr Amir had indicated in the referral letter that the worker had ceased her medications for more than 12 months. The Member also noted that there were a number of reports from Dr Jayaweera, the last of which was dated 8 March 2023, addressed to Dr Amir, which noted he had last seen the worker in 2018 when she was:
“… extremely well on Etanercept and subcutaneous Methotrexate combination. She had decided to stop it altogether without informing me and has flared over the last couple of years.
Today it looked like most of the involvement was in … six large joints … including the right shoulder, both wrists, left knee and both ankles … tenderness in both feet at the MCP joints.
… started her on Methotrexate …”.[20]
[20] Reasons, [42].
The Member said:
“That report is not contradicted by other evidence. Though Dr Jayaweera does not say exactly in what way or to what extent [the worker’s RA] affects the right ankle, I accept that it does so, at least to some extent.”[21]
[21] Reasons, [43].
The Member commenced his discussion of and findings regarding the evidence at [44] of the reasons, firstly noting that both Dr Hatfield and Dr Gehr found on examination, in 2022 and 2023, a positive Tinel’s sign along the tibial nerve with tenderness along the TPT, and that both doctors also found right ankle instability. He said Dr Miniter did not observe such instability and made “no mention of administering any test for Tinel’s sign, and neither confirmed nor denied the presence of numbness over the medial aspect of the foot, recorded by Dr Gehr”.

The Member said he did not know what if any tests Dr Miniter performed for nerve involvement, and that his examinations in 2022 and 2023 could only discern irritability and swelling at the subtalar joint. He noted that Dr Miniter reasoned that this was the result of RA because “this was a common occurrence in [RA] patients … even though the [worker] had by May 2023 been taking rheumatoid agents for two months”. He further noted that Dr Miniter did not suggest that a positive Tinel’s sign, nerve involvement or instability of the right ankle were commonly observed phenomena in RA patients; and “[t]he fact that he did not observe these things to be present does not convince me that Dr Hatfield and Dr Gehr were necessarily mistaken. All three … are specialist orthopaedic surgeons”.
He also considered the timing of the examinations by each of these doctors, noting that Dr Hatfield examined the worker in June and July 2022, Dr Gehr did so in January 2023 and Dr Miniter doing so in October 2022 and May 2023 “which overlaps with the period in which she was seen by Dr Hatfield and Dr Gehr”. The Member then reasoned:
“… the most likely explanation for the differences in their findings is that signs of pathology can wax and wane over time, and can be present at one examination and not another. Notwithstanding the fact that Dr Miniter’s second examination was the last in time, I am satisfied that there is likely to be at least pathology of the tibial nerve, that the [TPT] is symptomatic, and that the ankle is unstable, at least from time to time …”[22]
[22] Reasons, [45].
The Member said that there was no evidence that these conditions, as distinct from swelling or irritability of the subtalar joint, were common in RA patients, or that they were due to RA.[23] He then found that to the extent the findings of Dr Miniter on the one hand, and Drs Hatfield and Gehr on the other differ, he preferred the opinion expressed by Drs Hatfield and Gehr “because they constitute the weight of medical opinion, and because, with respect to nerve involvement at least, I am unable to discern what, if any, tests were administered by Dr Miniter”.[24]
[23] Reasons, [46].
[24] Reasons, [47].
The Member then said he was satisfied that the TPT and tibial nerve pathologies, and the ankle instability, resulted from the fall at home “because the symptoms of swelling and ankle pain, and the instability requiring use of a brace, arose contemporaneously with the fall, in circumstances where Ms Hillier’s [RA] had been unmedicated since at least late 2020, apparently without the development of such symptoms”.[25] The Member still accepted Dr Miniter’s uncontradicted opinion that subtalar joint irritability is often observed in RA patients, saying that taking Dr Miniter’s opinion with those of Drs Hatfield and Gehr “indicates that [this irritability] might be due to [RA], or the effects of right ankle inversion, or both”.[26]
[25] Reasons, [48].
[26] Reasons, [49].
The Member then reasoned that “[h]aving regard to the emergence of the symptoms at the point of injury to the right ankle, I am satisfied that, even if the subtalar joint symptoms are in part due to the effects of [RA], they also result from the inversion injury to the right ankle …”. He then added “[n]othing turns on it, as surgery was recommended to treat nerve involvement, tendon swelling and ankle instability, not swelling of the joint”.
After acknowledging the relevant test for causation as discussed in Murphy, the Member turned to consider “whether the proposed surgery is appropriate to address the condition of the right ankle”, noting Dr Miniter thought it was inappropriate “ … because, he says, possible chondral damage aside, the only remaining pathology is swelling or irritability of the subtalar joint, which will be cured by medication for [RA]”. The Member then said he was not satisfied this was the only remaining pathology, and that he was satisfied of the presence of right ankle instability, tibial nerve pathology and pathology in the TPT. He then said that “[f]or those reasons, I cannot accept his opinion that surgery is inappropriate … I accept the opinion of Dr Hatfield and Dr Gehr that surgery is needed to address the effects of ankle instability, nerve pathology and the symptomatic [TPT].”[27]
[27] Reasons, [51].
The Member further said he was satisfied that the injury to the worker’s left knee materially contributed to the need for right ankle surgery, as there is no dispute that the right ankle inversion injury resulted from the left knee injury, and he was satisfied that the three pathologies in the right ankle for the treatment of which surgery is recommended all result from the inversion injury. He added that even if the swelling or irritability of the subtalar joints resulted from the RA, he was satisfied that it also relevantly results from the fall at home. In this regard, he again expressly stated his preference for:
“… the weight of the medical evidence constituted by the opinions of Dr Hatfield and Dr Gehr to that of Dr Miniter, and because I am not satisfied that [RA] medications alone are sufficient to address the identified pathology of the [TPT], nerve involvement or ankle instability. To treat those conditions, the proposed surgery is reasonably necessary.”[28]
[28] Reasons, [52].

GROUNDS OF APPEAL

The appellant brings the following two grounds of appeal:
(a) “The Member erred and denied the appellant procedural fairness in refusing to admit Dr Miniter’s report of 13 July 2023” (Ground 1).
(b) “The Member erred in failing to address the [appellant’s] central submission, namely that the worker had not produced evidence that the treating surgeon had been made aware of the history of severe rheumatoid arthritis add this [sic, and her] response to the resumption of treatment” (Ground 2).

NATURE OF THE APPEAL

The appeal is brought pursuant to s 352(5) of the 1998 Act which limits an appeal to a determination of whether or not the decision was affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing.
In Raulston v Toll Pty Ltd[29] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[30] as to the nature of the appeal process under s 352(5) of the 1998 Act, relevantly as follows:
“(a)    [A member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that [the] conclusion was wrong’.
(b)     Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c)     It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong”
[29] [2011] NSWWCCPD 25 (Raulston), [19].
[30] (1966) 39 ALJR 505, 506.
In Northern NSW Local Health Network v Heggie,[31] Sackville AJA, Basten and Ward JJA agreeing, stated:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable …”.
[31] [2013] NSWCA 255, [72].

SUBMISSIONS

The content of both grounds of appeal substantially overlap, both raising the same ultimate questions and analysis. I summarise the submissions with that in mind.

The appellant’s submissions

As to Ground 1

The appellant says that on the production of the documents the subject of the Member’s direction at the preliminary conference (PC) on 13 June 2023, it promptly referred them to Dr Miniter, and the July 2023 report was then produced without delay.
The appellant says the Member’s only reason for rejecting this report was that it would otherwise cause the worker prejudice, and the determination of her claim would be delayed, but he did not weigh this prejudice against the prejudice to the appellant.
The appellant says the essence of the July 2023 report was Dr Miniter’s opinion that if Dr Hatfield had been aware that the “worker’s cessation of medication in 2021 had caused her ankle pain (as well as other rheumatic pains) to flare”, and “that following resumption of her medication in March 2023 the symptoms had improved, this would have been a material consideration in determining whether … surgery of the ankle was appropriate”.[32]
[32] Appellant’s submissions, [12].
The appellant says the worker’s account was that her ankle was responding favourably to the resumption of treatment, “and given the absence of any evidence that Dr Hatfield had been made aware of any of this history, there was a strong argument available to the appellant, supported by the rejected report, that the worker had not made out a case for the orders that she sought”.[33] Accordingly, the appellant says the rejection of the report was prejudicial to the appellant, this prejudice was not given any consideration.
[33] Appellant’s submissions, [14].
The appellant says this involves a substantial injustice as discussed in CHEP Australia Ltd v Strickland.[34] The appellant also seeks leave pursuant to s 352(6) of the 1998 Act for the July 2023 report to be admitted and the decision revoked and remitted back to another member to be determined on evidence that includes the above report.
[34] [2013] NSWCA 351 (CHEP).
The appellant also provided supplementary submissions dated 18 September 2024 as a result of me issuing a direction on 12 September 2024 inviting the parties to make any further brief submissions in relation to a particular matter; whether it could be inferred that the clinical entry in Dr Hatfield’s notes “known RA but not on meds currently”[35] was a reference to the respondent’s rheumatoid arthritis condition and whether or not there were any other inferences that could be drawn from that note. This direction was issued in circumstances where the appellant had submitted it was clear that Dr Hatfield had no knowledge of the previously diagnosed rheumatic condition, or the cessation of her medication, or of “an improvement in her condition following the resumption of that medication”,[36] and that neither counsel had mentioned that clinical note in their submissions on appeal.
[35] ARD, p 385.
[36] Appellant’s submissions in reply, [13].
The appellant then acknowledged “RA” was a reference to rheumatoid arthritis, but submitted that this did not “diminish the error”, and repeated the earlier submissions, adding that given Dr Hatfield’s knowledge of the RA and cessation of medication, it was “highly relevant” that the worker resumed her medication three weeks later with significant benefit.

As to Ground 2

The appellant points to the reasons at [49] where the Member accepted Dr Miniter’s opinion that “subtalar joint irritability is often observed in [RA] patients. When taken together with the opinions of Dr Hatfield and Dr Gehr, that indicates that it might be due to [RA], or the effects of right ankle inversion, or both”; and submits that it was incumbent on him, given this finding, to ask whether Dr Hatfield had the opportunity to address the alternatives at the time of recommending the surgery.
The appellant says the determination of the cause of the worker’s complaints was a medical question, which had not been addressed by any evidence produced by the worker, and it was not for the Member to place himself in the position of the treating surgeon. The appellant then said that the critical issue is whether Dr Hatfield would have recommended that surgery be delayed if she had the opportunity to review the case in the light of the full history.
The appellant submitted that the worker had failed to produce evidence that the proposed treatment was appropriate, or that alternative treatment might be effective, given the worker’s positive response to the resumption of her medication.
The appellant made submissions in reply on 10 October 2023 saying, in summary, that the worker’s submissions on 6 October 2023 failed to address the point it put in relation to both appeal grounds. The appellant referred to the Member’s rejection of Dr Miniter’s report as a denial of procedural fairness, also submitting that it was only on 27 June 2023 that the appellant “could become aware” of the rheumatic condition flaring after the worker’s cessation of the medication prescribed for that condition, and that Dr Miniter “had produced a report without delay”.
The appellant accepted the principles in House v R[37] apply, but still puts that when exercising the discretion to admit evidence the Member did not give any consideration to the “far greater” prejudice to the appellant – the denial of a cogent argument against the proposition that the proposed treatment was reasonably necessary.
[37] [1936] HCA 40 (House).
The appellant says that the second (Ground 2) error is similar – a material consideration was not taken into account, namely, the deprivation of the appellant having Dr Miniter’s opinion before the Commission. It also replied to the respondent’s supplementary submission (below) that an inference could be drawn (from the “RA” clinical note) that at the time of making her recommendation for surgery, Dr Hatfield held the view that the RA history was not of relevance, and that evidence of this could have been obtained but was not. The appellant also says the absence of a current recommendation from Dr Hatfield, without any explanation for an absence of that, raised an available inference that Dr Hatfield’s evidence would not assist the respondent’s case.
The appellant says:
“… the last report from Dr Hatfield was dated 21 July 2022. It was patent … that [she] had no knowledge of a previously diagnosed rheumatic condition, no knowledge of the worker’s cessation of her medication, and no knowledge of an improvement in her condition following the resumption of that medication”.[38]
[38] Appellant’s submissions in reply, [13].
The appellant says there is no evidence Dr Hatfield considered the worker’s positive response to the treatment of her RA condition, or whether having been made aware of the matters considered by Dr Miniter, Dr Hatfield might consider delaying the surgery.
The appellant further stressed that the worker’s solicitors have been aware, on receiving Dr Miniter’s 25 May 2023 report, that within two months of resuming her anti-rheumatic medication, the worker had already noticed an improvement in her overall condition, but no evidence from Drs Hatfield or Gehr post-dating this opinion was put forward, nor any explanation as to why that evidence could not be obtained.

The respondent’s submissions

As to Grounds 1 and 2

The worker says the decision of the Member was a discretionary one and can only be set aside in the circumstances described in House; such as acting on wrong principle, taking into account irrelevant considerations, not taking into account relevant matters, mistaking the facts, or where the decision is unreasonable or plainly unjust. The respondent says the appellant has not identified any error of the type referred to in House.
The respondent says the Member identified relevant considerations – that the report was relevant, that the admission of the report would be prejudicial to the respondent, and “the objects of the Tribunal and the general presumption against granting adjournments”. The worker also says the Member identified the correct test as being in the interests of justice, a test that considers the competing prejudice, and this was not erroneous.
The worker also put that the Member acted consistently with Procedural Direction PIC 3 (paragraph [28]). She also points out that the report was served only 17 days before the hearing on 10 August 2023 – in circumstances where the matter had been the subject of a PC on 13 June 2023 – when the appellant did not give notice it would be seeking to serve any further medical reports, and the report did not involve any re-examination by Dr Miniter, so the respondent was not on notice of the possibility of any further report.
The worker submitted that the appellant acquired the report after examination of the documents from Dr Jayaweera after obtaining those documents upon direction, and that no explanation has been given why those documents have not previously been obtained by utilising an authority from the respondent for the documents to be provided directly to the appellant.
The respondent says in any event the admission of the report would not have led to a different outcome, as it did not involve a re-examination of the worker, and the Member rejected Dr Miniter’s opinion because of deficiencies in his examination findings, and he found (at [29] of the reasons) that Dr Miniter’s opinion did not engage with the details of the injury to the right ankle, or the immediate onset of symptoms in it. The respondent says the Member preferred the opinions of Drs Hatfield and Gehr because he accepted their clinical findings and was satisfied there was likely to be at least pathology of the tibial nerve, and that the TPT was symptomatic, and that the ankle was unstable, at least from time to time.
The respondent also put that while the Member accepted that the subtalar joint symptoms are in part due to the RA, nothing turned on that because the surgery was recommended to treat the nerve involvement, tendon swelling and ankle instability – and not the swelling of the joint (reasons at [49] and [51]) – and that there is nothing in the rejected report that would lead to a different conclusion. The respondent also says Dr Miniter’s opinion had the “fatal flaw” that he did not ever consider the actual event causing the right ankle injury, nor did he address the question of nerve involvement, tendon swelling and instability, which were the consequence of the injury and for which the surgery was recommended.
The respondent thus submits that the rejection of the report was also not material. As to the supplementary submissions regarding Dr Hatfield’s “RA” clinical entry at ARD p 385, the respondent accepts that abbreviation does stand for rheumatoid arthritis, and an inference is also available that Dr Hatfield did not think the RA history was relevant to treating the diagnosed ankle conditions she was proposing surgery for, and that the earlier entry (at ARD p 384) of “nil significant” past history was consistent with such an inference.

DISCUSSION AND FINDINGS

Each ground of appeal identifies separate errors, in Ground 1 by the refusal to admit the July 2023 report, and in Ground 2 by a failure to address the appellant’s “central submission … that the worker had not produced evidence that the treating surgeon had been made aware of the history of severe [RA] [and her] response to the resumption of treatment”. As noted above, the content of each ground – as well as the “fresh evidence” application under s 352(6) – essentially feed into the same ultimate issues and analysis. It is thus convenient to deal with both grounds of appeal, and that application, together.
Starting with the ex-tempore decision about the July 2023 report, the appellant’s primary position is that the decision is not interlocutory. The worker agrees. I will assume, without deciding, that the decision was not interlocutory. The appellant says the Member took into account the prejudice the worker would suffer if the July 2023 report was admitted, but did not take into account prejudice to the appellant if it was rejected, and describes, on appeal, the terms of this prejudice as “a cogent argument against the proposition that the proposed treatment was reasonably necessary … a far graver prejudice”.[39]
[39] Appellant’s submissions in reply, [9].

But the appellant did not put it quite that way to the Member. These were its submissions:
“MR PERRY: The relevance of the documents was effectively acknowledged by the direction you gave that are relevant. It would certainly be expected, I think, that the assistance that the Commission might get from the documents, of course, is assisted by the relevant experts, perhaps on both sides. Saying that they do or do not provide assistance to the Commission in making its determination as to whether the [respondent] has established what he or she, in this case, needs to establish.
It's relevant, it has been served some time ago. The [AALD] is some time back. It’s been – I hear what my friend says about the opportunity to – for it to be considered by Dr Gehr and I understand that but that should not inhibit the Commission from getting a highly relevant document before it in order to assist you to reach the correct outcome”.[40]
[40] T 2.27–3.9.
The Member then summarised the appellant’s submissions in this way:
“Mr Perry from the insurer urges the Commission to accept the report of Dr Miniter on the basis that it is relevant and would be of assistance to the Commission in resolving the issues in dispute – determine those issues and he says that as the late documents were filed on the 24th of July there has been some time between the 24th of July and present day which is the 10th of August for the [respondent] to obtain a report in response to it.”[41]
[41] T 3.29–4.2.
I also note that after the Member commenced delivering his decision orally, he said: “I would not admit such a supplementary report unless it were on terms that the worker were able to [have an adjournment]. It would not [be] in the interests of justice to do so. That itself demonstrates a clear prejudice to the worker …”.[42] Mr Perry then said he would have no difficulty with the admission of the document being subject to an adjournment.
[42] T 8.7–11.
These passages show me that the Member adequately summarised and dealt with those submissions and, contrary to the appellant’s submissions on appeal, also did not fail to consider the prejudice to the appellant if the report was rejected. He may not have expressly said he took this prejudice into account. But he plainly did. He found that the report was “relevant and would be of assistance to the Commission in resolving the issues in dispute”.[43] He also summarised, in detail, the content of the report.[44] This involved consideration of Dr Miniter’s comments on the clinical notes produced by Dr Jayaweera, including that Dr Miniter said:
“… the discontinuation of anti-rheumatoid drugs … has been the predominant reason [the worker has] had ongoing issues in her right ankle … she has only just recommenced her [RA] drug treatment … [Dr Miniter] relies … on the reports of Dr Jayaweera to justify that conclusion and he says there has been some slight improvement in the overall function as a result, presumably because of the early onset of those drugs”.[45]
[43] T 3.30–32; T7.21–24.
[44] T 4.19–7.19.
[45] T 6.10–19.
The Member also noted Dr Miniter’s opinion that the RA treatment “should be allowed to take full effect before any consideration is given to surgery”, acknowledging the doctor’s comments on Dr Jayaweera’s view that there was “involvement of [RA] in both ankles, particularly the right ankle”, and Dr Miniter’s view that there was “clear evidence of subtalar inflammatory change, which is very common in [RA]” but was “not an injury”.[46] He then noted that Dr Miniter wrote that he believed “that if Dr Hatfield were given the opportunity to review this matter she would not regard the initial treatment recommendations as appropriate”.[47]
[46] T 6.21–33.
[47] T 7.8–11.
It is clear enough that this detailed consideration of Dr Miniter’s opinions in the July 2023 report means, at least implicitly, the Member was aware of, and did take into account, the prejudice to the appellant if the report was not to be admitted into evidence. He fleshed out the content informing his acceptance of the submission that this report was relevant. That the appellant would suffer the prejudice by not having Dr Miniter’s opinions in the July 2023 in evidence was and is obvious. This is consistent with the appellant’s submission not expressly putting to the Member that he needed to consider the prejudice to the appellant if the report was not allowed in.
After looking at both sides of the argument, as put to him, the Member said: “So that’s Dr Miniter’s most recently expressed view. It is … relevant as to the issues for my determination …”. Then he added:
“However, it’s powerful evidence because it has regard to the most recent treating rheumatoid – treating physician in regard to [RA] opinion and examination of the worker … [which] postdates [the] examination … by … Dr Gehr on 11 January 2023 in which Dr Gehr found no evidence of active [RA] in the joint in question”.[48]
[48] T 7.21–32.
The Member said it followed that he accepted that the worker would need an adjournment to deal with Dr Miniter’s opinion in the July 2023 report, to “obtain Dr Gehr’s expert evidence in reply and perhaps other expert evidence in reply”, and it “would not [be] in the interests of justice”, and such an approach was not an “efficient conduct of these proceedings”, and result in them being “unnecessarily prolonged” and “I reject the tender”.[49]
[49] T 8.2–9.4.
In my opinion this was a discretionary decision which was open to the Member and there was no error in the making of it. A decision such as this should be read fairly and as a whole. Reasons can also be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated – and in some cases, the path of reasoning which led to an ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[50]
[50] Fire and Rescue NSW v S [2015] NSWWCCPD 50, [142], [145] per Roche DP, citing Woolworths Ltd v Warfe [2013] VSCA 22, [131] and Murray Goulburn Coop Co Ltd v Filliponi [2012] VSCA 230.
I also do not accept the appellant’s argument that “given the absence of any evidence that Dr Hatfield had been made aware of any of this history” (the cessation of medication in 2021, the resumption of medication in March 2023, and the improvement in symptoms) it has been denied the opportunity of making “a strong argument … supported by the rejected report, that the worker had not made out a case for the orders … sought”.
Contrary to the appellant’s submissions in chief and reply, there was evidence Dr Hatfield was aware of the worker’s RA history and cessation of her medication. After I pointed out the existence of evidence to the contrary (at ARD p 385), the appellant conceded in its supplementary submission that the reference “known RA but not on meds currently” was a reference to the RA, but says this does not “diminish the error”, repeating “subsequent to the recommendation for treatment by way of arthrodesis [sic]”, the worker resumed treatment with medication, and with a positive response. There is no concession that its earlier submission that Dr Hatfield was unaware of the RA and cessation of the medication was wrong, although there is no submission to the contrary in this respect now. If there is such a submission, I reject it, given the words “not on meds currently” at ARD p 385.
This leaves the appellant’s submission that it was denied the opportunity to put a case that the worker’s ankle was responding favourably to the resumption of treatment “and given the absence of any evidence that Dr Hatfield had been made aware of this history, there was a strong argument … supported by the rejected report, that the worker had not made out a case for the orders she sought”.
I do not accept this argument either. Dr Miniter examined the worker a few days before he produced his 31 May 2023 report, which is in evidence. One of his findings was, “as far as I could determine”, the worker did “not have any major issues ongoing in the right hind foot except possibly for the persistence of subtalar synovitis and/or arthritis”. He also noted the worker had begun her anti-rheumatoid treatment some two months ago, and that “[o]ne would hope that this treatment would allow the matter to continue to settle”.[51] Dr Miniter went on to say that “[f]or the moment, the appropriate treatment recommendations would have to be repeated … ongoing weight loss, reestablishment of her [RA] treatment, and if possible discontinuation of cigarette smoking”.[52] Then, when asked: “Do you believe the … injuries will improve at all if she begins taking rheumatoid medication again?”, he answered: “It is most likely that this matter will continue to improve with the instigation of her [RA] treatment”.[53]
[51] Reply, p 17.
[52] Reply, p 18.
[53] Reply, p 19.
There was no further examination of the worker by Dr Miniter for the purposes of the July 2023 report. All that relevantly occurred was the forwarding to him of Dr Jayaweera’s notes, in particular that doctor’s report to the worker’s GP of 8 March 2023. Importantly, this short report is also in evidence.[54] It notes that the doctor had seen the worker again, for the first time since 2018, and that there was “involvement … in the large joints … including … both ankles” and, relevantly, she was to continue on the medication, with another follow-up to occur in four months.
[54] AALD, p 122.
None of this information was novel or even surprising. Dr Miniter had earlier expressed the view that the RA was the essential feature of the worker’s presentation, and Dr Gehr acknowledged that there was underlying RA but that it “plays little if any part in her defined injuries”. I take Dr Gehr to be referring here to what he described as the “well-defined pathology” related to the tibial nerve and TPT in or about the right ankle.[55] Dr Hatfield was also aware of the “known RA but not on meds currently”.
[55] ARD, p 35.
When considered in depth, it can be seen there is not a great deal of difference between Dr Miniter’s report of May 2023 and his report of July 2023. Much of the latter essentially repeats what he said in his earlier report. He started his July 2023 report with this:
“As you know, I have been consistent in my opinion … whereby the discontinuation of this lady’s anti-rheumatoid drugs has been the predominant reason that she has had ongoing issues. Indeed, when I saw her not too long ago, it was very clear to me that she had only just recommenced her rheumatoid drug treatment and, as you know, the effect of such drugs can be quite slow onset”.
He added:
“In general terms, the information that you have sent me simply serves to underpin my diagnosis in this case. This lady has clear evidence of subtalar inflammatory change, very common in [RA]. This is not an injury.” (emphasis added)
Therefore, the argument that the appellant was denied an opportunity to put a case that the ankle was responding favourably to the resumption of RA treatment, and that the worker had not made out a case for the orders she sought, is incorrect. The appellant had this opportunity in any event to submit this, including in the context of Dr Miniter’s earlier reports and Dr Jayaweera’s clinical notes being in evidence. The transcript also shows this argument was forcefully put to the Member. The only difference with the content of the July 2023 report was Dr Jayaweera’s 8 March 2023 report noting he had put the worker back on medication and was going to follow up in four months to ascertain a response. Dr Miniter examined the worker nearly three months later when he noted that the worker told him she had “noticed an improvement in her overall condition, and … that her shoulders and hands are feeling much better now that she is back on her regular medication”.[56]
[56] Reply, p 16.
The Member took all these matters into account before finding that the adjournment which would be necessary if the July 2023 report was admitted “would not [be] in the interests of justice” given the delay and the “rules governing the litigation in this Commission”. In my view, this is not an unreasonable or plainly unjust decision, nor one where any available inference in the opposite sense to that chosen by the Member is so preponderant that the Member’s decision can be seen to be wrong. It was a decision that was open to him. Dr Miniter’s view is that various investigations need to occur, and that the worker’s “significant problem with inflammatory disease … should settle at least to some extent with the reinstitution of drugs …”. The Member took this into account.
Section 42 of the 2020 Act provides that the “guiding principle” for that Act is to “facilitate the just, quick and cost effective resolution of the real issues ...”. I accept the submission for the worker that the Member did act in accordance with paragraph [28] of Procedural Direction PIC 3 which sets out the matters that will be considered in determining an application for leave to admit late documents. Those matters are:
(a)    the interests of justice;
(b)    the requirements of the legislation and rules;
(c)    the submissions of the parties including the adequacy of the reasons for the delay in lodging the documents;
(d)    any prejudice that would result from granting or refusing leave;
(e)    the effect, if any, on the timely resolution of the dispute, and
(f)    the objects of the Commission under ss 3 and 42 of the 2020 Act
In my opinion, for the reasons given above, the Member also considered all these matters. Given all the circumstances, it can be seen that it was at least open to him to reject the tender of the report, and again, there was no error, including as to procedural unfairness, in coming to this decision – even if the admissibility of the report may be said to be a matter about which reasonable minds may differ.
The appellant also submits that the alleged failure to consider prejudice to it was an error “within the meaning of the term” in CHEP at [27]. But this passage relates to the receipt of fresh, additional or substitutional evidence on appeal under s 352(6) of the 1998 Act. The terms of Ground 1 relate to error and denial of procedural fairness in the Member refusing to admit the July 2023 report. It is unclear whether the appellant is saying that the Commission should receive the report under s 352(6) to assist in its argument that the tender was rejected in the first place. If so, this would appear to be a circular exercise, and practically unnecessary anyway because the terms of the report were recited and considered by the Member and have now also been considered by me.
Even if I am wrong in this view, it could not possibly make a difference to the ultimate result anyway for the reasons given below supporting the disposition of the appellant’s remaining arguments.

The application under s 352(6) of the 1998 Act to receive Dr Miniter’s 13 July 2023 report

Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except [by] leave ... The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In CHEP, Barrett JA (Macfarlan JA agreeing) relevantly said the following about s 352(6) of the 1998 Act:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives ... The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ’would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion”.
The appellant’s submissions on the s 352(6) application do not deal with whether the report meets only one or both s 352(6) criteria. But I do not see how the July 2023 report can be regarded as “fresh evidence”, particularly as the subsection relates to fresh evidence “in relation to the decision appealed against”. This is similarly the case with the evidence “in addition to or in substitution for the evidence received in relation to the decision appealed against”. Plainly, the July 2023 report is not fresh, additional or substitutional evidence. There are no submissions to the contrary. I find the first criterion is thus not satisfied. The question becomes whether the appellant can show that failure to grant leave would cause substantial injustice, having regard to the CHEP principles.
Otherwise, the s 352(6) application substantially overlaps with Ground 2 in all the circumstances. I therefore propose to deal with them at the same time. In my view, the appellant has clearly not shown that the granting of leave would cause substantial injustice, because even if the July 2023 report was taken into account, the same result would emerge. I have come to this view after considering both grounds of appeal.
As the respondent submits, Dr Miniter’s opinion in the July 2023 report is not to the point of the Member’s disposition of the case – which involved an acceptance of the clinical findings of Drs Hatfield and Gehr before being “satisfied that there is likely to be at least pathology of the tibial nerve, that the [TPT] is symptomatic, and that the ankle is unstable, at least from time to time.”[57] In other words, the Member identified pathology which was separate from the RA pathology; then he reasoned how and why that pathology had resulted from the inversion injury to the right ankle, even if the sub-talar joint symptoms were also in part due to the effects of RA.[58]
[57] Reasons, [45].
[58] Reasons, [46]–[49].
Contrary to paragraphs [21]–[22] of the appellant’s submissions, I do not agree that “[g]iven this finding, it was incumbent on the Member to ask whether [Dr Hatfield] had the opportunity to address the alternatives”. The appellant also says the determination of the cause of the worker’s complaints was a medical question, which had not been addressed by any evidence produced by her, and “it was not for the Member to place himself in the position of the treating surgeon”.[59] These submissions are incorrect and rejected. The Member did not place himself in the position of the treating surgeon, he rather analysed both sides of the medical evidence and made findings about both the RA and the effects of right ankle inversion. He did so by basing his findings on expert evidence, from Dr Miniter regarding the RA, and Drs Hatfield and Gehr with respect to the effects of the right ankle inversion.
[59] Appellant’s submissions, [23].
It can be accepted that the Commission can only apply its expertise insofar as it is used to interpret and draw inferences from acceptable evidence, and it cannot be used to create evidence.[60] Also, findings must be based on the evidence, or reasonable inferences open to be drawn from the evidence, not on the judge’s knowledge.[61] But the Member did not simply draw on his own knowledge. At the least, he only interpreted and drew inferences from acceptable (expert) evidence. At most, his findings were on the basis of express expert evidence.
[60] Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Conargo Shire Council v Quor [2007] NSWWCCPD 245, [79].
[61] Strinic v Singh [2009] NSWCA 15, [60].

The appellant’s submissions at [21]–[22] are also contextually unfair to a critical part of the Member’s reasoning, as put for the respondent,[62] because in the sentence immediately following the quote extracted from reasons [49], he indeed developed the finding he made by saying:
“Having regard to the emergence of the symptoms at the point of injury to the right ankle, I am satisfied that, even if the subtalar joint symptoms are in part due to the effects of [RA], they also result from the inversion injury to the right ankle which caused the symptoms to emerge. Nothing turns on it, as surgery was recommended to treat nerve involvement, tendon swelling and ankle instability, not swelling of the joint.”
[62] Respondent’s submissions, [17].
The appellant says the Member should have developed his finding by an alternative route to the one he took (at reasons [49]) and needed to ask whether Dr Hatfield had been given the opportunity to address the alternatives in that finding. But he did not refer to mutually exclusive alternatives. He referred to the sub-talar joint irritability perhaps being due to the RA or the effects of the right ankle inversion, or both – showing he fairly framed the question by allowing for each option to be taken into account. The one he chose was consistent with the medical evidence and the principles in Murphy and Diab.
The appellant put that the “critical issue” was whether Dr Hatfield “… would recommend that surgery be delayed until [she] had had the opportunity to review the matter in the light of this history”.[63] But this ignores the Member’s identification of the issues at reasons [5]: whether the right ankle condition results from the fall at home, and if so, whether the proposed surgery is reasonably necessary to treat the condition. While acknowledging her RA condition, he found the worker also suffered a right ankle inversion injury when she fell at her home on about 23 January 2022 and given the “emergence of the symptoms at [this] point”, he was satisfied the subtalar joint symptoms were in part resulting from that incident. Importantly, he then said, “even if” those symptoms were also in part due to the effects of the RA, “[n]othing turns on it, as surgery was recommended to treat nerve involvement, tendon swelling and ankle instability, not swelling of the joint”.[64]
[63] Appellant’s submissions, [24].
[64] Reasons, [49].
The appellant was entitled to raise the point about whether Dr Hatfield would recommend the surgery be delayed until she had the opportunity to review the matter because Dr Miniter raised it. But I respectfully disagree it can be elevated to be described as the critical issue, and believe it is only one matter within the overall description of the issue(s) described by the Member at reasons [5]. In any event, this matter was dealt with by the Member when he preferred the evidence of Drs Hatfield and Gehr over that of Dr Miniter,[65] saying there is “likely to be at least pathology of the tibial nerve, that the [TPT] is symptomatic, and that the ankle is unstable, at least from time to time”. The Member gave at least adequate reasons for coming to that opinion. The appellant has not criticised those reasons – both as to his preference of the evidence of Drs Hatfield and Gehr over that of Dr Miniter about the right ankle pathology, particularly as identified on examination, and also the finding, at [48] of the reasons, that:
“… the pathology diagnosed with respect to the [TPT] and the tibial nerve, and the ankle instability, results from the fall at home, because the symptoms of swelling and ankle pain, and the instability requiring use of a brace, arose contemporaneously with the fall, in circumstances where [the worker’s RA] had been unmedicated since at least late 2020, apparently without the development of such symptoms.”
[65] At reasons, [44]–[49].
This reasoning is consistent with these contemporaneous notes of Dr Yanagisawa on 25 January 2022: “Missed A few steps downstairs. Inverted right foot. Tender lateral malleoli. Knee examination normal. Reportedly heard a snap. Thompson test showed reduce plantarflexion of right foot”.[66] The worker was referred for physiotherapy and saw Maria Amjed on 28 January 2022, who took a similar history, also noting the fall was “on Monday afternoon” when the “[f]oot swelled … difficult to weight bear on the R side so trying to compensate more on the left … Brace provided … felt more supported with it”.[67]
[66] AALD, pp 505–506.
[67] ARD, p 146.
Ms Amjed saw the worker again on 2 February 2022 when she noted that the “knee is going well … overall” but that the right ankle was still swollen and “ankle brace provided”. Ms Amjed reviewed the worker 10 and 17 February 2022 when pain was still elicited in the right ankle.[68]
[68] ARD, pp 142–146.
In these circumstances, it was clearly open to the Member to come to the views he formed about the existence of the right ankle pathology he described, and the fall at home being the incident responsible. There was no specific evidence or submissions contrary to these matters, except the matters raised by Dr Miniter that have been dealt with above.
The Member also based his finding on the expert evidence of Dr Gehr and Dr Hatfield. He preferred the opinion expressed by these doctors over that of Dr Miniter “both because they constitute the weight of medical opinion, and because, with respect to nerve involvement at least, I am unable to discern what, if any, tests were administered by Dr Miniter”.[69] This finding was clearly also open to him. The appellant has not made any submission against the Member’s entitlement to either come to the view that Dr Miniter’s opinion was at least unclear in relation to what tests he performed to identify nerve involvement, or the ultimate preference of the opinions of Drs Hatfield and Gehr over that of Dr Miniter. The appellant rather focuses only on the RA aspect of the case – and in particular, whether Dr Hatfield would delay the proposed surgery if she was aware of the worker’s positive response to treatment of her RA.
[69] Reasons, [47].
However, as the respondent submitted, the Member concluded that the right ankle condition resulted from the right ankle injury, and Dr Miniter’s opinion was rejected because there was right ankle pathology, as found by Drs Hatfield and Gehr, other than RA, and the surgery was to address that other pathology.[70]
[70] Respondent’s submissions, [18].
The Member also stated that it “remains to consider whether the proposed surgery is appropriate to address the condition of the right ankle”, noting that Dr Miniter considered it was inappropriate because “possible chondral damage aside, the only remaining pathology is swelling or irritability of the subtalar joint, which will be cured by medication for [RA]”. The Member then goes on to affirm that he was:
“… not satisfied that … is the only remaining pathology. I am satisfied of the presence of right ankle instability, tibial nerve pathology, and pathology at the [TPT]. For those reasons, I cannot accept his opinion that surgery is inappropriate. On the contrary, I accept the opinion of Dr Hatfield and Dr Gehr that surgery is needed to address the effects of ankle instability, nerve pathology and the symptomatic [TPT]”.[71]
[71] Reasons, [51].
Contrary to the appellant’s submission, the Member has dealt with both the terms of the complaint in Ground 2, and the alleged failure “in the absence of evidence informed by the history and by the opinion of Dr Miniter based on that history, to produce evidence that the treatment was appropriate, or that alternative treatment might well be effective”.[72] This submission may have had some force if the Member had accepted Dr Miniter’s evidence that there was little or no pathology in the right ankle. Otherwise, as he said at reasons [49]: “Nothing turns on it, as surgery was recommended to treat nerve involvement, tendon swelling and ankle instability, not swelling of the joint”.
[72] Appellant’s submissions, [26].
To the contrary, the respondent indeed produced evidence that the treatment was appropriate for the condition which was subject of the proposed surgery. This also disposes of the appellant’s argument about there being a critical flaw in the evidence which was not addressed. The Member correctly acknowledged the applicability of the principles in Diab and Murphy, then carefully set out the evidence, dealing with both the RA history and the history of the right ankle injury. He also took care in analysing the circumstances of that injury, noting the parties agreed that the incident when she lost her balance and tumbled down the stairs at home was probably on 23 January 2022.
For the above reasons, my opinion is that there would be no substantial injustice occasioned to the appellant by continued exclusion of the July 2023 report, and that neither of the preconditions to a grant of leave under s 352(6) of the 1998 Act have been satisfied, and that the discretion available under that section should not be exercised.
This is a case where the application of the principles referred to in Raulston are relevant because the Member has preferred one view of the primary facts to another as being more probable. Each of the opinions formed, and findings made, by the Member were at least open to him. It is clearly not a case where material facts have been overlooked or given undue or too little weight in deciding inferences to be drawn, or where available inferences in the opposite sense to that chosen by him are so preponderant to persuade me that his decision is wrong – nor is there any procedural unfairness.
For all the above reasons, the application under s 352(6) is rejected, and both Ground 1 and Ground 2 fail.

DECISION

The application under s 352(6) of the 1998 Act to receive fresh evidence, or evidence in addition to or in substitution for the evidence received before the Member, is rejected.
The Certificate of Determination dated 14 August 2023 is confirmed.
The appeal is dismissed.

Michael Perry
ACTING DEPUTY PRESIDENT

23 October 2024