Craddock v G.H. Varley Pty Ltd

[2021] NSWWCCPD 10

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Craddock v G.H. Varley Pty Ltd [2021] NSWWCCPD 10

APPELLANT:

Christopher Craddock

RESPONDENT:

G.H. Varley Pty Ltd

INSURER:

AAI Limited trading as GIO

FILE NUMBER:

A1-3089/20

ARBITRATOR:

Ms J Toohey

DATE OF ARBITRATOR’S DECISION:

8 September 2020, amended 17 September 2020

DATE OF APPEAL DECISION:

11 February 2021

SUBJECT MATTER OF DECISION:

Factual error: application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; clinical notes of treating doctors – Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; application of weight of expert evidence in the Commission: application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 and associated authorities; admission of fresh evidence on appeal: application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr R Stanton, counsel

Brydens Lawyers

Respondent:

Mr D A Baker, counsel

Gillis Delaney Lawyers

ORDERS MADE ON APPEAL:

1. The appellant’s application for leave to rely on fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.

2.    The Arbitrator’s decision dated 8 September 2020 (amended 17 September 2020) is revoked. The matter is remitted for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

1. Christopher Craddock (the appellant) was employed full-time by G.H. Varley Pty Ltd (the respondent) as a production worker, from 27 February 2017 to 24 May 2017.[1] There was an incident on 29 March 2017 when the appellant was using an air rivet gun which was connected to compressed air. The air hose blew off the machine and struck the appellant in the vicinity of his abdomen (to employ an intentionally vague term).[2] The occurrence of the incident was not in serious dispute. There was an issue regarding precisely where on his body the appellant was struck and the nature of any injury sustained. The incident was reported, but the appellant did not claim compensation at the time. He saw a general practitioner, Dr Chin, on the date of the incident and was given a medical certificate for two days off work.[3] The appellant resumed his normal duties on 3 April 2017 and worked on until 24 May 2017 when he was terminated whilst still on probation, due to concern about his attendance and health issues.[4] The appellant states that he had difficulty carrying out his duties after the incident.[5]

   [1] Reply, p 14.

   [2] Mr Craddock’s statement dated 9 October 2019, Application to Resolve a Dispute (ARD), p 2.

   [3] ARD, p 72.

   [4] Reply, p 35.

   [5] ARD, p 3.

2. The appellant obtained sedentary work with another employer which he performed from 22 October 2017 to 18 August 2019.[6] The appellant lodged a claim form dated 11 December 2017.[7] The respondent’s insurer denied liability in a dispute notice dated 19 March 2018. The insurer contended the incident had not caused any incapacity for work, that any treatment was not reasonably necessary, and that the effects of the injury had resolved.[8] The decision was confirmed in a s 287A notice dated 31 July 2019.[9] The claim as ultimately pursued was for weekly compensation from 24 May 2017 to 22 October 2017 and from 19 August 2019 to date and continuing, together with medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).[10]

   [6] ARD, p 3.

   [7] ARD, pp 6–9.

   [8] ARD, pp 14–18.

   [9] ARD, pp 19–22.

   [10] Craddock v G.H. Varley Pty Ltd [2020] NSWWCC 328 (reasons), [2].

3. The current proceedings were commenced by way of the ARD which was dated 3 June 2020. The matter was listed for an arbitration hearing on 18 August 2020. Mr R Stanton appeared for the appellant and Mr D A Baker appeared for the respondent. In accordance with the Commission’s current practice, due to the COVID-19 pandemic, the hearing was conducted remotely, by telephone. The Arbitrator dealt with some late documents that were relied on. Particulars of the weekly claim were discussed, counsel addressed and the Arbitrator reserved her decision. There were no applications to adduce oral evidence or to cross-examine.

4. The Commission issued a Certificate of Determination dated 8 September 2020 (amended on 17 September 2020), accompanied by the Arbitrator’s reasons. There was an award in favour of the respondent. References in this decision to the reasons are to the amended document.

THE ARBITRATOR’S REASONS

1. The Arbitrator described the claim that was brought and the basis of the respondent’s denial. She described the issues as whether there was an injury within the meaning of s 4 of the 1987 Act, whether the effects of any injury were continuing, whether there was incapacity as a result of injury and whether there was an entitlement to reasonably necessary medical expenses.[11] She summarised the lay and medical evidence that was before her.[12]

   [11] Reasons, [1]–[5].

   [12] Reasons, [10]–[54].

2. The Arbitrator summarised the appellant’s submissions. Mr Stanton submitted there was no dispute that the appellant was struck by an air hose. It was submitted there was some force involved, the air hose tore through the appellant’s clothes, he felt immediate pain, vomited and had trouble standing. Mr Stanton referred to the medical evidence. Dr Draganic (a treating colorectal surgeon) diagnosed abdominal wall neuralgia. Dr Mendelsohn (a surgeon qualified in the appellant’s case) had previously had difficulty with the diagnosis. He then agreed with Dr Draganic’s diagnosis. He agreed that the appellant had chronic iliac fossa pain. He described the appellant’s prior abdominal problems as unrelated to the injury.

3. Mr Stanton referred to the reports of Dr Garvey (a surgeon qualified in the respondent’s case). Dr Garvey took a comprehensive history consistent with the appellant’s statement. He had access to the reports of Drs Draganic and Mendelsohn. He found no inconsistency or exaggeration. He diagnosed anterior cutaneous nerve entrapment. Dr Garvey maintained this diagnosis on the basis of his clinical findings, after seeing an MRI scan report that failed to confirm the diagnosis. Mr Stanton submitted all of these doctors came to the same conclusion, the appellant suffered from anterior cutaneous nerve entrapment syndrome and was unfit for his pre-injury duties.[13] The Arbitrator also summarised Mr Stanton’s submissions on the appellant’s entitlements, which it is unnecessary to repeat having regard to the issues in this appeal.[14]

   [13] Reasons, [55]–[60].

   [14] Reasons, [61]–[64].

4. The Arbitrator summarised Mr Baker’s submissions. Dr Chin certified the appellant as fit to resume work on the day after the incident. There was nothing apparent, when the appellant resumed work, that suggested serious injury. The appellant did not lodge a claim until 11 December 2017. Dr Chin’s notes on the day of the incident described a visible mark above the umbilicus. In his claim form in December 2017, the appellant said that he was “hit on the tummy”. The mark observed by Dr Chin was not on the left iliac fossa anterior flank, the injury location later recorded by Dr Mendelsohn, and then by the appellant in his statement. It was submitted a medical dictionary will show the iliac fossa region is below the umbilicus.[15]

   [15] Reasons, [65]–[66].

5. Mr Baker submitted that, following 29 March 2017, the appellant did not see Dr Chin for nine months, save for one occasion which was unrelated to the incident. When the appellant returned to her in December 2017, Dr Chin declined to give him a WorkCover certificate and told him to see Dr Plummer. The appellant, in his statement, said that he had no bowel problems before the workplace injury. This was inconsistent with notes from the Nelson Bay Medical Centre which showed a long history of abdominal pain and gastrointestinal problems apparently related to anxiety. Mr Baker submitted that during 2017, after the incident, the appellant saw Dr Plummer on five occasions regarding matters such as abdominal discomfort, without mentioning the workplace injury. Dr Plummer’s first record of the incident was on 20 October 2017, after he had seen lawyers. The Arbitrator noted a submission that the appellant went to Dr Plummer on his lawyers’ advice and subsequently provided a “statement of evidence that does not reflect what actually occurred”.[16]

   [16] Reasons, [67]–[69].

6. Mr Baker referred to the fact that the appellant, in his statement, referred to injuring his “left anterior flank region”, a term Mr Baker submitted came from Dr Mendelsohn’s report. He submitted that the appellant stated Dr Chin gave him a WorkCover certificate when she did not. The appellant said he was terminated because he had difficulty carrying out his work, but this was not borne out by the statements of Mr English and Mr Alexander. The appellant said he was in and out of hospital four or five times between the injury and around June 2017. The only medical evidence was that he attended the Mater Hospital on one occasion and was discharged.[17]

   [17] Reasons, [70].

7. Mr Baker submitted the history on which Dr Draganic based his opinion was incorrect, the doctor understood the appellant had chronic left iliac fossa pain for two years corresponding with where he was struck. He was not struck in the left iliac fossa area. Dr Draganic understood there was a history of no previous gastrointestinal symptoms, contrary to the true history. Mr Baker submitted Dr Mendelsohn found localised pain in the left iliac fossa below the umbilicus; this was contrary to Dr Chin’s record of the site of the injury. Other discrepancies were also referred to. Mr Baker submitted that all three doctors had the wrong histories, there was not a fair climate for the expression of their opinion.[18]

   [18] Reasons, [72]–[74].

8. The Arbitrator noted a submission in reply from Mr Stanton, that Dr Garvey had a full history that included the factual investigation arranged by the insurer.[19]

   [19] Reasons, [76].

9. The Arbitrator referred to Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[20] and the need for a tribunal of fact to feel an actual persuasion of the existence of a proved fact. She referred to Kooragang Cement Pty Ltd v Bates[21] and the need, when dealing with causation issues, for a commonsense evaluation of the causal chain.[22] She referred to the need for caution in dealing with clinical notes from treating doctors,[23] referring to a line of authority that included Davis v Council of the City of Wagga Wagga.[24]

   [20] [2008] NSWCA 246.

   [21] (1994) 35 NSWLR 452; 10 NSWCCR 796.

   [22] Reasons, [85]–[86].

   [23] Reasons, [89].

   [24] [2004] NSWCA 34 (Davis).

10. The Arbitrator said there was no dispute that the appellant was struck by an air hose. Dr Chin, on the day of the incident, noted a “visible mark from airhose above umbilicus”[25] (emphasis in the original). There was no reason to think that Dr Chin “did not record the site of the visible mark accurately”. There was no submission that the note was inaccurate.[26] The Arbitrator said that Dr Chin’s was “the only contemporaneous record”. She referred to “the value of contemporaneous evidence”,[27] citing Onassis and Calogeropoulos v Vergottis.[28]

    [25] Reasons, [88].

    [26] Reasons, [90].

    [27] Reasons, [91].

    [28] [1968] 2 Lloyd’s Rep 403.

11. The Arbitrator referred to the history recorded by Dr Mendelsohn in November 2018. Dr Mendelsohn recorded the hose “tore through his clothes and hit his left anterior flank region”. She noted that Dr Mendelsohn identified the site of pain as below the level of the umbilicus in the left iliac fossa, which is where Dr Mendelsohn found “localised tenderness” and an “irregularity in the soft tissues” (emphasis in the original). Dr Draganic also recorded two years of “chronic left iliac fossa pain from where the air hose ‘struck him in that area’”. It did not appear that Dr Draganic had Dr Mendelsohn’s report. Both doctors recorded a history of injury at a spot different to that recorded by Dr Chin. The Arbitrator said it did not appear that either of these doctors had Dr Chin’s records.[29]

    [29] Reasons, [92]–[94].

12. The Arbitrator said that the site of where the appellant was struck was of greater significance because of his long history of abdominal and gastrointestinal problems. This was shown in the clinical records, notwithstanding the appellant’s denial of bowel problems prior to the incident. She said it did not appear the cause of these problems “was ever identified with any certainty”. She said the clinical records did not show any particular change in the appellant’s symptoms after the incident.[30] The appellant consulted Dr Plummer about his abdominal problems during May 2017. The appellant’s symptoms were sufficiently severe that he attended a hospital emergency department on 17 May 2017 and was sent for a CT scan to investigate his abdominal problems. There was no mention to Dr Plummer or the hospital of his work incident. The Arbitrator said it was:

    “… difficult to think of a reason why he would see a doctor several times over several months for abdominal pain, including having a CT scan, and attend at a hospital in severe pain, without once mentioning the injury at work, if it had the effects he claims. It is reasonable to infer it had no noticeable effect different from his previous abdominal symptoms.”[31]

    [30] Reasons, [95]–[96].

    [31] Reasons, [97].

13. The Arbitrator said that Dr Chin certified the appellant as fit to resume work on the day following the incident, and he resumed full duties on the following Monday. The evidence suggested any effects of the incident quickly resolved. She accepted the appellant “continued to suffer abdominal pain as he had for many years”. She did not accept that there was any significant change following the incident. She said that the appellant’s statement that Dr Chin gave him a WorkCover certificate was “not correct”. She said she accepted the respondent’s submission that the appellant’s statement contained “other statements that are not correct including that he was in and out of hospital four or five times in the months following the incident”. She accepted a submission from the respondent that the consultation with Dr Plummer on 20 October 2017, when the incident was first mentioned to that doctor, was prompted by the appellant’s attendance on his lawyers.[32]

    [32] Reasons, [98]–[100].

14. The Arbitrator said she did not “think [the appellant’s] responses on the later employment questionnaires should be held against him”. She said the appellant’s “evidence is unreliable in significant respects, in particular some of what he told the specialists of the incident itself and his medical history”. Dr Draganic and Dr Mendelsohn both proceeded on the basis that the air hose struck the appellant in the left iliac fossa. Dr Garvey “apparently proceeded on the basis of [the appellant’s] written statement that he was struck in the left anterior flank region”. She said she accepted the respondent’s submission that “the three specialists reached their conclusions based on a description of the incident that did not accord with the contemporaneous record”. This was “against a background of longstanding complaints of abdominal pain, vomiting, nausea and diarrhoea”.[33]

    [33] Reasons, [101]–[103].

15. The Arbitrator said that Dr Mendelsohn, in his second report, described the previous history of longstanding abdominal problems as irrelevant to the abdominal wall problems that followed the incident. She said it was “not clear” why. The Arbitrator referred to Paric v John Holland Constructions Pty Ltd[34] and associated authorities regarding the need for “a fair climate” upon which a doctor can base an opinion. She accepted the respondent’s submission that there was not a fair climate for the specialists’ reports. She said the appellant had not discharged his onus of establishing ‘injury’ on 29 March 2017. To the extent that there was any incapacity after 29 March 2017, she was not satisfied that it resulted from his employment. There was an award for the respondent.[35]

    [34] [1985] HCA 58; 59 ALJR 844 (Paric).

    [35] Reasons, [105]–[108].

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:

   “(6)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. Both parties submit the matter can be determined on the papers. Having regard to Practice Directions Nos 1 and 6, the documents that are before me and the submissions by the parties, I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

GROUNDS OF APPEAL

1. The appellant raises the following grounds:

   (a)    The Arbitrator erred in fact finding in that she effectively concluded the air hose struck the appellant above the umbilicus rather than on the left side of the abdomen because there was ‘no reason’ to think that Dr Chin’s record was not accurate. (Ground No. 1)

   (b)    The Arbitrator erred in fact finding in that she concluded Dr Chin’s record was ‘the only contemporaneous record’. (Ground No. 2)

   (c)    The Arbitrator erred in fact finding in that she concluded the opinions of the three specialists were not given in a ‘fair climate’. (Ground No. 3)

   (d)    Fresh evidence (on which the appellant seeks leave to rely) assists in concluding that the other probabilities so outweigh that chosen by the Arbitrator as to conclude the Arbitrator was wrong. (Ground No. 4)

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

1. Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:

   “An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

2. In Raulston v Toll Pty Ltd,[36] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[37] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[38]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:

   “(a)    An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.

   (b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.

   (c)     It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[39]

   [36] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).

   [37] (1966) 39 ALJR 505 (Whiteley Muir), 506.

   [38] [1996] HCA 140; 140 ALR 227.

   [39] Raulston, [19].

1. In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[40] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[41]

   “… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[42]

   [40] [2017] NSWWCCPD 5, [67].

   [41] [2001] FCA 1833, [28].

   [42] Raulston, [20].

2. In Northern NSW Local Health Network v Heggie,[43] Sackville AJA said:

   “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: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[44]

   [43] [2013] NSWCA 255; 12 DDCR 95 (Heggie).

   [44] Heggie, [72].

3. The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[45] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:

   “With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[46]

   [45] [2020] NSWCA 54 (Hill).

   [46] Hill, [20].

THE APPELLANT’S APPLICATION TO ADMIT FRESH EVIDENCE

1. The appellant seeks leave to admit fresh evidence pursuant to s 352(6) of the 1998 Act. It consists of two photographs and a short statement identifying the photographs. It is described in a schedule attached to the Application to Appeal:

   (a)     statement of the appellant dated 1 October 2020, which describes the photographs referred to in (b) and (c) below as having been taken on the date of the incident at 7.07 am and 9.33 am respectively;

   (b)     a photograph of the appellant’s abdomen, annexure ‘A’ to the statement, and

   (c)    a photograph of the appellant’s shirt, annexure ‘B’ to the statement.

Appellant’s submissions

1. The appellant’s submissions on this topic are to be found in a section of its submissions dealing with ‘Background matters’, together with its submissions dealing with Ground No. 4. The appellant submits there was no dispute that, in the course of his employment on 29 March 2017, the appellant was using a rivet gun when the air hose detached and struck him. The appellant refers to the dispute notices issued by the respondent’s insurer. The s 74 notice dated 19 March 2018[47] included reference to a factual investigation which stated that a “red mark was observed on one side of your abdomen”. It included “your alleged injury of 29 March 2017 … has resolved”. The appellant submits the impression is that the insurer “was generally accepting that an injurious incident occurred, that it had left a red mark on the side of the abdomen but that the effects of that injury had resolved”.[48]

   [47] ARD, pp 14–18.

   [48] Appellant’s submissions, [1.4]–[1.7].

2. The s 287A notice[49] referred to Dr Chin’s reference to “a visible mark above your umbilicus”. It referred to Dr Mendelsohn’s report which identified “localised tenderness over the left side of the abdomen below the level of the umbilicus … there was an irregularity in the soft tissues at this point”.[50]

   [49] ARD, pp 20–22.

   [50] Quoted in appellant’s submissions, [1.5].

3. The appellant describes “the combined effect of these notices when read together [as] somewhat obscure”. The appellant submits that neither notice developed an argument that tenderness on the left side below the umbilicus was inconsistent with an event that produced a red mark above the umbilicus. Neither notice attached any medical opinion to that effect.[51]

   [51] Appellant’s submissions, [1.8]–[1.9].

4. The appellant notes that Dr Garvey’s report dated 10 August 2020 was attached by the respondent to its Reply. Dr Garvey diagnosed an injury being “[a]nterior cutaneous nerve entrapment syndrome” and said “[t]he [w]orker’s presentation is consistent with the history and examination obtained”.[52] The appellant’s submissions note that Dr Garvey’s report indicates he was sent statements of Wayne Moy, Brett English, Chad Page and James Alexander. The statements of Mr Page indicated that shortly after the incident he saw the appellant “holding his stomach to one side”, and that there was “a faint red mark on the side of his stomach”. The Accident/Incident Report Form described the nature of the injury as “Red mark” and the part of the body affected as “Trunk”.[53] The appellant submits that neither the appellant or Mr Page described “the mark as being central or as being above the umbilicus”. The appellant submits there was nothing to alert the appellant or his legal advisers that the respondent would base a defence on Dr Chin’s note regarding “a red mark above the umbilicus, as opposed to a red mark on the side of the abdomen/stomach”.[54]

   [52] Reply, p 290, quoted in appellant’s submissions, [1.12]–[1.13].

   [53] Appellant’s submissions, [1.14]–[1.18].

   [54] Appellant’s submissions, [1.21].

5. The appellant’s submissions state that in the context of the hearing, which was being conducted by telephone, “it is more difficult and confronting for a worker to interrupt the submissions of counsel to inform his solicitor or counsel of additional evidence he or she may be aware of”. It is submitted the appellant was “aware of such evidence” but felt “uncomfortable and intimidated” and did not mention it to his legal representatives.[55]

   [55] Appellant’s submissions, [1.23]–[1.24].

6. The appellant submits that the fresh evidence, the “relatively contemporaneous photos”, are highly persuasive. They assist in concluding that trauma was caused by a blow to the side of the abdomen. The red mark is on the left side and not above the umbilicus. The torn clothing is consistent with trauma to the left side of the stomach. The appellant submits that, with the addition of this evidence, “it is likely the Arbitrator’s decision was erroneous and that the Arbitrator was wrong as to the location of the trauma”.

Respondent’s submissions

1. The respondent’s submissions on the fresh evidence are contained in its submissions in the “Preamble” in its Notice of Opposition, and its submissions dealing with Ground No. 4. It submits the matters raised in its dispute notices were addressed[56] by its counsel at the arbitration hearing.[57] It submits the appellant’s counsel understood the issues in the matter and dealt with them at the arbitration hearing.[58]

   [56] Respondent’s submissions, p 2.

   [57] Transcript of arbitration hearing on 18/8/20 (T), T 43.25–49.19.

   [58] T 22.30–23.02.

2. The respondent submits the material does not support the notion that the appellant was unaware of the issues determined by the Arbitrator. The dispute notices specifically referred to the site of the appellant’s injury as noted by Dr Chin. The respondent notes the appellant does not submit the fresh evidence was unavailable or could not with reasonable diligence have been available for use at the arbitration hearing. It submits the appellant knew of the issues but did not seek an adjournment or seek an adjournment to obtain further instructions to meet the submissions. Mr Baker (who appeared for the respondent at the arbitration hearing and is the author of its submissions on this appeal) submits he can recall the Arbitrator informing the appellant that the appellant was able to confer with his representatives in private conference at any time he felt the need.[59]

   [59] Respondent’s submissions, Ground Four, [1]–[3].

3. The respondent submits on the photographs. It submits that, from a lay point of view, Annexure B shows a red mark above the umbilicus and not at the site of the left iliac fossa, consistent with Dr Chin’s note. The respondent submits that Annexure C shows a tear in the appellant’s jacket immediately below the left breast pocket. It submits this would accord with the site nominated by Dr Chin.[60]

   [60] Respondent’s submissions, Ground Four, [4]–[5].

Consideration

1. Section 352(6) of the 1998 Act provides:

   “(6)    Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”

2. In CHEP Australia Ltd v Strickland[61] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:

   “27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. 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.”

   [61] [2013] NSWCA 351; 12 DDCR 501 (Strickland).

3. The appellant’s statement dated 1 October 2020[62] is the first item in the appellant’s schedule of fresh evidence. It is a largely formal document. It identifies the two photographs (Annexures A and B) as having been taken on the morning of 29 March 2017, at 7.07 am and 9.33 am respectively. The appellant states that Annexure A “shows the impact area where I was struck”; Annexure B shows “the severity of the impact which ripped my shirt”. The appellant states that he had not shown these photographs to his solicitors as he did not realise they would be relevant. He states he did not mention them during the arbitration hearing as he felt “uncomfortable and intimidated by the whole process”. It is common ground that the photographs could have been available to be used at the arbitration hearing. It follows that the documents do not satisfy the first of the threshold questions identified in Strickland and cannot be admitted on that basis.

   [62] Notice of Appeal, p 33.

4. The question then becomes whether the fresh evidence satisfies the second of the threshold tests. This involves a consideration of the result that would emerge depending on whether or not the evidence is taken into account. It is necessary to deal with the various grounds of appeal, to consider whether or not the result that emerges is different depending on whether the fresh evidence is taken into account.

5. In the circumstances it is convenient to consider Grounds Nos. 1, 2 and 3 together.

GROUNDS NOS. 1, 2 AND 3

The appellant’s submissions

1. The appellant submits there was evidence “which introduced reasons to consider that Dr Chin’s record was not accurate”.[63] He submits Mr Page’s statement describes him, shortly after the accident, “holding his stomach on one side”.[64] Mr Page describes seeing “a faint red mark on the side of his stomach”.[65] The appellant states that he was struck “over the left side of my abdomen”. He submits this “very much takes issue with the accuracy of the doctor’s note”.[66] It is submitted the Arbitrator ignored this evidence and simply proceeded on the basis that Dr Chin’s record was accurate. It is submitted to be error that she failed to give any weight to “this persuasive evidence”.[67]

   [63] Appellant’s submissions, [3.1].

   [64] Reply, p 48.

   [65] Reply, p 49.

   [66] Appellant’s submissions, [1.28].

   [67] Appellant’s submissions, [3.2]–[3.3].

2. The appellant refers to the Accident/Incident Report Form signed by the appellant dated 29 March 2017. It stated “air line fitting blew off and hit stomach”.[68] It is submitted this should be considered in conjunction with Mr Page’s statement. It was error to describe Dr Chin’s note as “the only contemporaneous record”. In his supplementary submissions, lodged following receipt of the transcript of the arbitration hearing, the appellant’s counsel submits that in reply, at the arbitration, he referred to the material sent by the respondent’s solicitors to Dr Garvey. This included the statement of Mr Page, which was in evidence before the Arbitrator. It was error not to refer to it. It was error to describe Dr Chin’s clinical note as “the only contemporaneous record”. [69]

   [68] Reply, p 92.

   [69] Appellant’s supplementary submissions, [1.4]–[1.5].

3. The appellant refers to the Arbitrator’s reference to the absence of a “fair climate” for the expression of an expert opinion, which he said came from the decision in Paric. Drs Draganic, Mendelsohn and Garvey all proceeded on a history that the air hose struck the left side of the appellant’s abdomen. The appellant submits that the Arbitrator’s conclusion that there was not a fair climate flowed from her “unquestioning acceptance” of Dr Chin’s record. The appellant submits the decision was affected in this regard by the errors in fact finding identified in Grounds No. 1 and 2.[70]

   [70] Appellant’s submissions, [5.1]–[5.2].

The respondent’s submissions

1. The respondent submits Dr Chin’s clinical note was the only contemporaneous medical note made by the general practitioner on the date of the incident. The respondent submits the reasons should be read as a whole, and this discrete piece of evidence was considered in the reasons at [89] to [92]. The respondent submits the Arbitrator’s conclusion on the point was reasonably open to her.[71]

   [71] Respondent’s submissions, [Preamble], [Ground 1 (1)].

2. The respondent refers to the appellant’s submission that the statements of the appellant and Mr Page were persuasive evidence against the acceptance of Dr Chin’s clinical note. The Arbitrator had reservations about the accuracy of the appellant’s evidence, reference is made to the reasons at [102] (sic, [101]). The respondent refers to inconsistencies in the medical and hospital records over a number of years, and inconsistencies between the appellant’s statement and statements attached to the factual investigation report. The respondent refers to Mr Page’s statement as being consistent with Dr Chin’s note, Mr Page refers to the site of injury being on the side of the appellant’s stomach. Dr Draganic refers to the site of injury as the left iliac fossa, on examination on 8 May 2019. That does not accord with injury to the side of the stomach. Dr Chin’s report to the insurer dated 20 December 2017 also refers to the appellant being “hit on his tummy”.[72]

   [72] Respondent’s submissions, Ground One [3]–[6].

3. The Accident/Incident Report Form was completed by Mr Page, a qualified first aid officer. It refers to a blow to the appellant’s stomach, and to the “part of body injured” as the “trunk”. The respondent submits these responses are internally consistent with Mr Page’s statement and do not demonstrate any error in fact finding.

4. The respondent submits that the Arbitrator accepted the site of injury was that recorded by Dr Chin, rather than the site identified in histories recorded by Drs Draganic, Mendelsohn and Garvey. It submits this was consistent with other contemporaneous evidence. The facts as determined by the Arbitrator were not demonstrated to be wrong. She was entitled to draw the inference that the appellant had not suffered injury at the site relied upon by the three specialists. The Arbitrator’s conclusion that those reports were not based on a “fair climate” for expression of the doctors’ opinions was not erroneous. There was not appealable error of the kind referred to in Raulston.

Consideration

The principles in Paric and associated authorities

1. It is helpful to note the principles in Paric. The reference to Paric in the Arbitrator’s reasons, and in the parties’ submissions on this appeal, are to the decision of the High Court, in which it was said:

   “It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[73]

   [73] Paric, [9].

2. References to Paric, in the Arbitrator’s reasons and in the parties’ submissions, are to whether a ‘fair climate’ existed for the expression of an expert opinion by a doctor. This phrase is taken from the decision in the case of Paric in the Court of Appeal, in which Samuels JA said:

   “It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.

   Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[74]

   [74] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (per Samuels JA, Hutley and Priestley JJA agreeing), 509G–510B.

3. The above is to some extent modified in the context of the statutory scheme in the Commission, in which the rules of evidence do not apply: s 354(2) of the 1998 Act. In Onesteel Reinforcing Pty Ltd v Sutton, Allsop P said:

   “3. Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.

   4.      The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost. Thus, if a person has given a history to a doctor which is incorporated as an assumption for the doctor's opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor's opinion. Much will depend on the context and the issues tendered for consideration as to how the Commission evaluates material before it. In most cases, as here, that evaluation will be a factual question, although the question whether material could or can support a factual conclusion is ultimately a question of law.[75] (excluding references)

   [75] [2012] NSWCA 282; 13 DDCR 351, [3]–[4].

1. In the context of the Commission it is also necessary to have regard to the following in Hancock v East Coast Timber Products Pty Limited:

   “In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.”[76] 

   [76] [2011] NSWCA 11; 8 DDCR 399 (Hancock), [83].

The specialist medical opinions

1. This was a matter in which each of the three relevant specialist medical opinions, dealing with the causal relationship between the incident relied on and the appellant’s diagnosed condition, supported the appellant’s case. The Arbitrator concluded that none of those three opinions had any probative weight, on the basis of the principles in Paric. Grounds Nos. 1 to 2 challenge the Arbitrator’s fact finding regarding the location of the blow suffered by the appellant in the incident, both in accepting the note made by Dr Chin and in whether she dealt satisfactorily with other evidence which arguably was to the contrary. Ground No. 3 challenges the availability of the Arbitrator’s conclusion that each of those three opinions was deprived of any probative force in the circumstances. It is necessary to examine the assumptions on which the three opinions were based, and the extent to which the assumptions were borne out by the evidence.

Dr Mendelsohn

1. Three specialists provided reports in the matter dealing with the injury suffered by the appellant. The earliest of these was Dr Mendelsohn, a general surgeon qualified by the appellant’s solicitors, who reported on 26 November 2018.[77] His history was that the appellant had no previous abdominal wall problems. The history referred to “anxiety and depression which he has had since school”. It stated there were no bowel problems prior to the incident save for occasional bouts of diarrhoea related to certain foods. The history said that in the past the appellant “had suffered from nausea which may have been related to anxiety and he tended to have vomiting every few weeks. He did not, however, suffer from constipation prior to the incident under discussion”.[78] The doctor recorded a history of injury:

   “… he was positioned awkwardly between two shelves and as he went to put in a rivet, an air hose blew off the machine and struck him over the left side of the abdomen. It tore through his clothes and hit his left anterior flank region but did not cause a laceration or penetrate the skin.

   He had immediate severe pain and vomited because of the pain.”[79]

   [77] ARD, pp 36–42.

   [78] ARD, p 39.

   [79] ARD, p 37.

2. Dr Mendelsohn recorded the appellant “returned to work after about a week”, there was pain, trouble lifting and he worked more slowly than before. There were intermittent days off over the next month. Because of continued symptoms he saw his usual general practitioner. There was a history that when he returned to work he “suddenly dropped down with pain and again went home”. The history states that at this stage he went to the Mater Hospital. It is recorded that the appellant had further time off work and was “eventually dismissed a couple of months after the incident because of difficulty in carrying out the work and frequent days off work”.[80] Dr Mendelsohn recorded a history of multiple investigations including a CT scan, gastroscopy and colonoscopy.

   [80] ARD, p 38.

3. On examination Dr Mendelsohn found “localised tenderness over the left side of the abdomen below the level of the umbilicus. This was basically in the left iliac fossa and there was an irregularity in the soft tissues at this point. The area was exquisitely tender …” (emphasis added).

4. Dr Mendelsohn described the condition as “currently undiagnosed as to his exact problem”. He suggested as possible diagnoses an “intra-muscular hernia … or neuroma of one of the superficial nerves damaged by the incident with the air hose”. The doctor thought the bowel symptoms were “unlikely to be directly, however, as a result of the blow to his abdomen”. They could be related to stress. Dr Mendelsohn stated the “condition is consistent with the mechanism of injury described”. [81]

   [81] ARD, pp 39–40.

5. Dr Mendelsohn reported again on 11 December 2019.[82] The appellant’s solicitors furnished Dr Mendelsohn with a copy of Dr Draganic’s report dated 8 May 2019 (summarised below) and asked whether he agreed with the diagnosis. Dr Mendelsohn said he believed the appellant had chronic iliac fossa pain. He considered the condition involved “abdominal wall pain rather than reflecting an intra-abdominal condition such as diverticulitis or irritable bowel syndrome”. He referred to Dr Draganic’s suggestion of abdominal wall neuralgia and agreed “this is almost certainly the case”. Dr Mendelsohn said neuralgic pain “would be due to either the development of a neuroma or chronic inflammation or damage to a superficial nerve as a result of the trauma. In either situation, it is almost certain that the ongoing problems have been caused by the injury by the air hose”. Dr Mendelsohn said there was no prior evidence of abdominal wall problems. He said the other problems, vomiting, diarrhoea and intermittent pain, were “unrelated to the injury that [the appellant] received in the workplace incident”. The doctor said he believed “unequivocally that he has a work related injury to the abdominal wall, with ongoing symptoms of pain due to either neuralgia and less probably a hernia”.

Dr Draganic

[82] ARD, pp 43–45.

1. Dr Draganic, a colorectal surgeon, reported on 8 May 2019 after seeing the appellant on referral from a doctor in the Nelson Plaza Clinic (from which Dr Chin also practices). Dr Draganic recorded chronic left iliac fossa pain which the appellant felt “coincides with an injury he sustained where a hydraulic hose came loose and struck him in that area of the abdomen”. He recorded very well localised pain in that area, no gastrointestinal symptoms and pain caused by movement. The appellant was “quite tender in that very well localised area in the mid left iliac fossa”. Two ultrasounds and a CT scan showed “no evidence of hernia or any intra-abdominal abnormality”. The doctor said that he thought “the symptoms are very suggestive of abdominal wall neuralgia”.[83]

Dr Garvey

[83] ARD, p 35.

1. Dr Garvey, a surgeon, examined the appellant at the request of the respondent’s solicitors and reported on 30 April 2020.[84] He was appropriately and thoroughly briefed with material that included Dr Mendelsohn’s reports, Dr Draganic’s report dated 8 May 2019, records from Nelson Bay Plaza Clinic (from which Dr Chin practices), the claim form dated 11 December 2017, Dr Chin’s handwritten report dated 20 December 2017, the appellant’s statement dated 9 October 2019, and statements from Messrs Moy, English, Page and Alexander from the factual investigation arranged by the insurer.

   [84] Reply, pp 286–293.

2. Dr Garvey took a history that the appellant was injured while building shelves in a deployable shipping container destined for Army use overseas. The doctor recorded the mechanics of the injury as “[h]e was using an air rivet gun and the air hose came off and hit the left side of his abdomen. He fell to the ground”. The doctor recorded the appellant walked to a bin and vomited, then walked to a bathroom as he was feeling ill. He then reported the incident to the medical officer. He saw a female doctor that afternoon, she inspected the injury, “treated him with RICE and he returned to work normally on Monday. He continued with his usual work but had pain on the left side of his abdomen so was sent home and spent a couple of weeks home and was let go from his work on May 24, 2020.” He recorded the appellant spent days in bed in pain, had a gastroscopy and a colonoscopy which were “non-contributory”, but showed “a stress and inflamed reaction in his colon”. An ultrasound and CT scan showed he was “blocked up inside” so he took laxative sachets.[85]

   [85] Reply, p 289.

3. Dr Garvey recorded a thorough physical examination. It included reference to “hypersensitivity to punctate sensation in the distribution of the anterior ventral ramus I of T10–T12 cutaneous nerve distribution”. The doctor noted the results of investigations involving an upper abdominal ultrasound on 5 May 2017, a CT scan of the abdomen and pelvis on 23 May 2017, and an endoscopy and colonoscopy performed on 21 June 2017.[86] Dr Garvey’s “Summary of injuries and diagnoses” read “Anterior cutaneous nerve entrapment syndrome”. Under the heading “Consistency of presentation” the doctor stated “The Worker’s presentation is consistent with the history and examination obtained.” Dr Garvey assessed six per cent whole person impairment. He stated: “This worker has objective clinical evidence of hyperaesthesia in the distribution of the left T10, T11 and T12 anterior cutaneous nerves of the abdomen”.

   [86] Reply, p 290.

4. Dr Garvey summarised Dr Mendelsohn’s reports, including the supplementary report in which Dr Mendelsohn diagnosed “abdominal wall neuralgia is almost certainly the case”, beneath which Dr Garvey wrote “I agree”.[87] Dr Garvey summarised Dr Draganic’s report dated 8 May 2019 in which Dr Draganic diagnosed “abdominal wall neuralgia”, beneath which Dr Garvey wrote “I agree”.[88] In response to a specific question Dr Garvey wrote “There was no inconsistency or exaggeration in the Worker’s presentation”.

   [87] Reply, p 291.

   [88] Reply, p 292.

5. Dr Garvey recommended further investigation in the form of an abdominal wall MRI scan. Dr Garvey reported again on 10 August 2020, to comment on an MRI scan report of Dr Long dated 12 June 2020. This scan dealt with the anterior abdominal wall. Dr Garvey said the scan “failed to detect any anterior cutaneous nerve entrapment or irritation”. Dr Garvey commented that the scan did not identify any anterior abdominal wall cutaneous nerves at all. He wondered whether the resolution of the scan technique was adequate for the purpose of diagnosing the cause of the peripheral neuralgia. He made suggestions for further investigation if the respondent wished “to take this further”. There is no indication that further investigations were arranged. Dr Garvey said that he maintained his diagnosis of anterior cutaneous nerve entrapment syndrome, which rested mainly on clinical examination findings of hypersensitivity in the three peripheral nerves T10, T11 and T12 on the left side.

The lay evidence

1. The reliability of the appellant’s account of both the incident and the subsequent events became an issue, particularly in the context of the issue about the weight of the medical evidence and the decision in Paric. It is appropriate to consider this aspect of the history.

2. The earliest evidence going to the reliability of the above account is from others in the workplace.

3. There is an “accident/incident report form” dated 29 March 2017 at 7.20. It is signed by Mr Page and Mr English. “What happened” is described as “air line fitting blew off & hit stomach”. The part of body injured is “trunk” and the nature of the injury is “red mark”.[89]

   [89] Reply, pp 92–93.

4. There is a handwritten note in what appears to be a desk diary, for the date 29 March 2017, that states the appellant “reported incident with air lead blowing off and hitting him in the stomach. He went home as he wasn’t feeling well.”[90]

   [90] Reply, p 73.

5. There is a statement of Chad Page dated 17 January 2018. Mr Page was a leading hand and also the “qualified first aid officer”. He stated that “quite early” on the day of the incident he saw the appellant “walking down the factory and he was holding his stomach on one side … He was making wincing faces”. Mr Page said “[h]e told me that the air hose had ‘blown off’ and hit him in the stomach.” Mr Page stated “I recall he had a faint red mark on the side of his stomach.” He said the appellant “did not initially want to report the matter, as he allegedly thought he would ‘get into trouble’”. Mr Page said that when the appellant subsequently resumed work he “continued to go home early and display the same work patterns.[91]

   [91] Statement of Chad Page 17/1/18, [12], [18], [20], [28], Reply, pp 48–50.

6. The statement of Mr English, the production supervisor, is dated 12 January 2018. The date 29 March 2017 was a Wednesday. Mr English stated that the appellant resumed work on the following Monday (3 April 2017) when he “returned on full duties”. Mr English said the appellant has “an unusually high amount of time off work” from quite early in his employment, usually just a single day. He discussed the appellant’s absences with him on 4 May 2017. Mr English stated that the appellant “felt that his work absences were due to stomach pains and he felt it may have been due to the incident on 29 March 2017”. Mr English stated that the appellant indicated he also felt unwell, light headed and faint so he was directed he could not continue work and should see a doctor. There was talk of “a bacterial infection and some type of pre-existing stomach condition, so it was all a bit confusing”. Mr English stated the appellant had off “a number of days on leave without pay”, and there was a further meeting where the appellant “basically agreed that he could not continue”. It “was not clearly identified as a workers compensation matter at that time”.[92]

   [92] Brett English Statement 12/1/18, [48], [49], [54]–[58], Reply, pp 43–44.

7. There is a statement of Wayne Moy, the production manager, dated 12 January 2018. Mr Moy stated the appellant resumed work on 3 April 2017, on full hours and duties. He stated that Mr English requested his involvement when Mr English had a discussion with the appellant. He said the appellant “looked unwell”, and it was “due to possibly three causes, including the incident on 29.3, a bacterial infection and a pre-existing illness”. Mr Moy stated the appellant “was terminated on 24 May 2017, basically because his attendance continued to be a concern, due to his alleged health issues”. He said he met with the appellant briefly prior to his termination and the appellant “basically agreed to resign because he ‘did not want to stuff us around’”.[93]

   [93] Wayne Moy statement 12/1/18, [30], [36], [38], [41], Reply, pp 34–35.

8. The Arbitrator referred to the appellant’s consultation with Dr Chin on 29 March 2017 and the doctor’s note of the mark on the appellant’s body (see [14] above). It should be noted that the clinical note also indicated that Dr Chin gave the appellant a medical certificate to cover the period from 29 to 30 March 2017,[94] which is consistent with the statements of Messrs English and Moy that the appellant was absent from the day of the incident on a Wednesday until the following Monday. In a handwritten document dated 20 December 2017, directed to the insurer, Dr Chin described the diagnosis as “abdominal injury by airhose” and the mechanism as “patient stated he was hit on the tummy by airhose at work”.[95]

   [94] ARD, p 54.

   [95] ARD, p 23.

9. It should be noted that, when the appellant attended the Mater Hospital on 18 May 2017, he presented with “sharp central 8/10 abdo pain radiating into back onset 0600 hrs whilst at work. Nausea and diahhrea [sic]”. It referred to “Hx Recent work place accident 1 month ago – had ultrasound last week for same shows ?enlarged spleen.”[96]

   [96] ARD, p 30.

10. The appellant’s claim form was dated 11 December 2017. It stated “working on assembly line using an air-riveter when the air hose and metal clamps blew off and hit my abdomen on the left side”.[97]

    [97] ARD, p 7.

11. The appellant, in his statement dated 9 October 2019, described the mechanics of injury:

    “On 29 March 2017 I was positioned awkwardly between two shelves and as I went to put in a rivet, an air hose blew off the machine and struck me over the left side of my abdomen. It tore through my clothes and hit my left anterior flank region but did not cause a laceration or penetrate the skin.”[98]

    [98] Appellant’s statement 9 October 2019, [19], ARD, p 2.

To what extent were there significant inconsistencies?

1. The lay evidence in the witness statements and associated documents is generally consistent with the appellant’s history to Drs Mendelsohn, Draganic and Garvey. The Arbitrator correctly observed that “there is no dispute that [the appellant] was struck by an air hose on 29 March 2017”.[99] Mr Page, the first aid officer, observed the appellant on that morning holding his stomach on one side and making wincing faces. The initial report of injury was consistent, that the air hose hit the appellant in the stomach. Mr Page stated there was a faint red mark on the side of the appellant’s stomach. This is consistent with the accident/incident report form, apparently filled out at 7.20 am on 29 March 2017, which referred to the appellant being hit in the stomach and commented on a red mark. The history recorded by Dr Chin (leaving to one side for current purposes her reference to where a red mark was located) was generally consistent. The appellant was off work from 29 March 2017 to 3 April 2017. He had a certificate from Dr Chin covering those days of this period that were not on a weekend, although the certificate was not in a WorkCover form.[100] It is clear from the clinical note that Dr Chin had a history that the event occurred at work.[101] All of this evidence was contemporaneous.

   [99] Reasons, [87].

   [100] ARD, p 72.

   [101] ARD, p 54.

2. The appellant raised with Messrs English and Moy, in discussions in May 2017, that the appellant thought his problems may be a result of the incident on 29 March 2017 (see [72] to [73] above). When the appellant attended the Mater Hospital on 18 May 2017 he gave a history of a “recent work place accident 1 month ago” (contrary to the reasons at [97]).[102] The Arbitrator inferred, from the absence of a recorded history of the incident in Dr Plummer’s notes and the hospital records, that there was no noticeable effect on the appellant’s pre-existing abdominal symptoms.[103] This does not take account of the entry in the records of the Mater Hospital, and is at least to an extent inconsistent with the appellant suggesting to his employer that he thought the symptoms, prior to his termination, may be a result of the incident.

   [102] ARD, p 30.

   [103] Reasons, [96]–[97].

3. There is some criticism of the appellant on the basis that he did not furnish Drs Mendelsohn, Draganic and Garvey with an accurate history of his prior complaints of abdominal pain, vomiting, nausea and diarrhoea.[104] Dr Mendelsohn, in his first report, recorded a history of occasional bouts of diarrhoea related to certain foods. Dr Mendelsohn, in that report, also recorded a history that, in the past, the appellant suffered from nausea that may have been related to anxiety and that he “tended to have vomiting every few weeks”.[105] Dr Mendelsohn expanded on this in his second report, referring to “longstanding abdominal pain, vomiting and diarrhoea”. He thought the likely diagnosis of these difficulties was irritable bowel syndrome, although he regarded these complaints as irrelevant to the abdominal wall problems. Dr Garvey was furnished with both of Dr Mendelsohn’s reports at the time he examined the appellant and would have been aware of the recorded history. The Arbitrator, in considering the weight to be afforded to the medical evidence, said it did not appear that Dr Mendelsohn or Dr Draganic had Dr Chin’s records.[106] Dr Garvey did have Dr Chin’s records and he agreed with Dr Mendelsohn’s ultimate diagnosis and opinion. Dr Garvey’s opinion was also consistent with that of Dr Draganic. The appellant’s counsel, in his submissions in reply before the Arbitrator, specifically referred to the fact that Dr Garvey had before him the same material (clinical notes and lay statements) as that on which the respondent addressed.[107]

   [104] Reasons, [103].

   [105] ARD, pp 37 and 39.

   [106] Reasons, [94].

   [107] T 78.20–24.

4. The relevance of the prior abdominal complaints was, in any event, doubtful. The prior complaints were essentially of a gastric nature, diarrhoea and vomiting. The condition diagnosed by Dr Mendelsohn, Dr Draganic and Dr Garvey as resulting from the incident involved a nerve injury to the abdominal wall. Dr Mendelsohn agreed with Dr Draganic that it was “abdominal wall neuralgia”. Dr Mendelsohn drew a clear distinction between the conditions, saying the chronic left iliac fossa pain was “abdominal wall pain rather than reflecting an intra-abdominal condition such as diverticulitis or irritable bowel syndrome”.[108] Dr Mendelsohn considered the intra-abdominal problems were “unrelated to the injury that he received in the workplace incident”.[109] There is no medical opinion to the contrary.

   [108] ARD, p 43.

   [109] ARD, p 44.

1. To the extent that significant inconsistency was alleged at the arbitration, it related to a single matter, whether a mark that Dr Chin noted on 29 March 2017 was at a location consistent with the incident causing the diagnosed condition. Dr Mendelsohn’s history described a relatively violent incident, in which the air hose blew off, struck the appellant over the left side of his stomach and tore through his clothes.[110] This is generally consistent with the evidence overall. There is no reason to conclude that the capacity of this incident to cause injury to the soft tissues of the appellant’s abdomen, in the region of his stomach, was limited to the location of the mark observed by Dr Chin. There is no medical opinion to that effect.

   [110] ARD, p 37.

Was there appealable error?

1. To take the case run by the respondent at its highest, in the absence of the fresh evidence, one can assume the accuracy of Dr Chin’s description in her clinical note on 29 March 2017, that there was a “visible mark from airhose above umbilicus”. The history she recorded of the incident was simply “hit on abdo by airhose this morning – at work”. It did not suggest a history that the location of the mark was the only point at which the airhose struck or injured the appellant’s abdomen. The lay and medical evidence is consistent with the proposition that the appellant was struck on the stomach region. It does not restrict the impact to the place where Dr Chin said she saw a mark. This would accord with common sense given that, on the history in the appellant’s statement and as recorded by Dr Mendelsohn, the impact was sufficiently violent that the device “tore through his clothes” (see [56] and [77] above).

2. There was, in my view, error in the fact finding, in that the analysis proceeded on the basis that any injury was confined to a location at or close to the red mark identified by Dr Chin. The Arbitrator approached the matter on the basis that the site of the red mark represented the “site of where [the appellant] was actually struck”.[111] The appellant’s statement, the statements of the lay witnesses, and the histories on which Drs Mendelsohn, Draganic and Garvey relied, were not confined in this way. They referred to trauma to the abdomen or stomach in a more general sense. I accept the appellant’s submission that the Arbitrator erred in how she dealt with the evidence regarding the mechanics and location of the trauma to the appellant’s abdomen. She focussed on Dr Chin’s description of the location of a mark and failed to engage with the other evidence on the topic.

   [111] Reasons, [95].

3. It was also necessary that that the Arbitrator deal with the evidence in Dr Chin’s note having regard to the principles in Davis and associated authorities. The Arbitrator referred appropriately to that line of authority. She did not, in my view, exercise the caution that those authorities require. In Davis it was said:

   “Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall.”[112]

   [112] Davis, [35].

4. The clinical note from Dr Chin’s consultation on 29 March 2017 referred to the mechanics of the incident very briefly: “hit on abdo by airhose this morning – at work”. There was nothing specific about the nature of the way in which the appellant was struck, where or with what force. The findings on examination also were brief: “abdo soft, nontender, visible mark from airhose above umbilicus”. The note, understandably, did not seek to identify the length of the mark, its dimensions, its shape or the direction in which it ran. The recorded clinical note did not identify whether, on the history, the blow suffered by the appellant was confined to the area of the abdomen where the mark was located or was more extensive. The brief history did not suggest the blow was confined to the place where the mark was seen. The note was entitled to some weight, but the use made of it exceeded what was appropriate in light of Davis and associated authorities. The Arbitrator approached the matter on the basis that the appellant was struck only at or close to the place where Dr Chin described a mark.

5. Additionally, the identification of a precise point of impact, and consideration of its importance, proceeded on the basis that the significance of these matters was increased by the history of prior intra-abdominal problems such as pain, vomiting, nausea and diarrhoea.[113] Why that was so was not explained. It was contrary to the only medical opinion on the topic, from Dr Mendelsohn, who considered the intra-abdominal symptoms were irrelevant to the abdominal wall neuralgia which was diagnosed as resulting from the incident. The appellant has succeeded in demonstrating appealable error of the kind described in Whiteley Muir (see [25] above). Grounds Nos. 1 and 2 succeed.

   [113] Reasons, [95]–[96].

6. In my view there was also error in the approach taken by the Arbitrator in the application of the principles in Paric and associated authorities. There were three expert reports that supported the causal relationship between the incident and the relevant abdominal nerve damage, including the report commissioned by the respondent’s solicitors. If there was a lack of correlation between the facts as proved and the assumed facts relied on by the experts in reaching their views, this did not mean that the expert opinion was deprived of all weight. The passage of Hancock quoted at [54] above makes it clear that, even if there are deficiencies in this regard, it is necessary to assess what weight should be afforded to the expert opinion in the circumstances of the particular case. As was said in the Court of Appeal in Paric, “in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion”.

7. The Arbitrator, dealing with the history and its adequacy, referred to two essential factors. The first was that the opinion of the three specialists was “based on a description of the incident that did not accord with the contemporaneous record”.[114] The reasons are to be read as a whole.[115] The Arbitrator referred to Dr Chin’s clinical record, specifically referring to “the visible mark”, as the “only contemporaneous record”.[116] In context, the “contemporaneous record” was Dr Chin’s description of that mark.

   [114] Reasons, [103].

   [115] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.

   [116] Reasons, [90]–[91].

8. The second factor was the history relating to “longstanding complaints of abdominal pain, vomiting, nausea and diarrhoea”. It was said that Dr Draganic took a history that there were no such previous problems, which was “not correct”. The Arbitrator said that Dr Mendelsohn corrected his first report in his second report, to say that there was a longstanding history of such matters, but said that history was irrelevant to the abdominal wall condition, “[i]t is not clear why”.[117]

   [117] Reasons, [103]–[105].

9. For reasons discussed above, the history of prior intra-abdominal symptoms was, on the only available medical evidence, probably of little or no relevance. The opinion of Dr Mendelsohn on this point did not rely on those aspects of the history that the Arbitrator regarded as deficient. It was simply a statement of medical opinion that prior intra-abdominal symptoms were probably irrelevant, to a condition diagnosed as involving nerve damage to the abdominal wall (that is, not intra-abdominal). To the extent that there was any deficiency in the history regarding prior intra-abdominal symptoms, its impact on the weight of the medical opinions was not self-evident.

10. Similarly, the force of Dr Chin’s note regarding the location of the mark (which was entitled to some weight) had to be dealt with in the context of the issues and evidence overall, in considering the weight to be given to the opinions of Drs Mendelsohn, Draganic and Garvey. There was much other evidence, discussed above, which needed to be considered before concluding these opinions were deprived of any probative force. The approach that was taken involved concluding, on the basis of these two identified deficiencies in the history, that there was not a ‘fair climate’ for the opinions of these three specialists. The opinions of these doctors (there was no other expert opinion to the contrary) was then ignored, in concluding that the appellant had failed to discharge his onus of proof.[118] This approach was inconsistent with the authorities discussed at [51] to [54] above.

    [118] Reasons, [106]–[107].

11. It follows that Ground No. 3 also succeeds. The appellant’s appeal is entitled to succeed.

THE FRESH EVIDENCE APPLICATION AND GROUND NO. 4

1. The appeal succeeds in the absence of the fresh evidence. In those circumstances it cannot be concluded that absence of the fresh evidence would cause ‘substantial injustice’ (see [39] to [42] above). The result that emerges is the same in the absence of the fresh evidence. It follows that the application to admit fresh evidence is refused. In the absence of the fresh evidence, Ground No. 4 does not arise.

DISPOSITION OF THE APPEAL

1. The appellant submits the appropriate order, if the appeal succeeds, is that the matter should be remitted to a different Arbitrator for re-determination.[119] The respondent’s submissions do not deal with the orders that should be made in the event that the appeal succeeds. It is appropriate to remit the matter for de-determination by a different Arbitrator.

   [119] Appellant’s submissions, [8.3].

DECISION

1. The appellant’s application for leave to rely on fresh or additional evidence pursuant to s 352(6) of the 1998 Act is refused.

2. The Arbitrator’s decision dated 8 September 2020 (amended 17 September 2020) is revoked. The matter is remitted for re-determination by a different Arbitrator.

Michael Snell
DEPUTY PRESIDENT

11 February 2021