Cruceanu v Vix Technology (Aust) Ltd

[2020] NSWCA 203

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203

Hearing dates:

14 July 2020

Date of orders:

3 September 2020

Decision date:

03 September 2020

Before:

Basten JA at [1];
Meagher JA at [77];
Emmett AJA at [113]

Decision:

(1)   Appeal dismissed.

(2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

APPEALS – right of appeal – scope of right – error of law – findings based on medical evidence – whether misunderstanding of claimant’s case – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1)

WORKERS’ COMPENSATION – entitlement to compensation – causal relation between accident and injury – delayed complaint of neck pain –neurological condition said to have painless onset – absence of reports of neck pain to treating medical practitioners

WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – workplace accident – claim by worker for lump sum compensation for cervical spine disease

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353

Cases Cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Northern NSW Local Health Network v Heggie [2013] NSWCA 255

Watson v Qantas Airways Ltd (2009) 75 NSWLR 539; [2009] NSWCA 322

Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54

Texts Cited:

Aaronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability 6th ed, LawBook Co, 2017

Category:

Principal judgment

Parties:

Octavian Cruceanu (Appellant)
Vix Technology (Australia) Ltd (Respondent)

Representation:

Counsel:
Mr R de Meyrick / Mr J Mrsic (Appellant)
Mr S Flett (Respondent)

Solicitors:
Grieve Watson Kelly Lawyers (Appellant)
Gillis Delaney Lawyers (Respondent)

File Number(s):

2020/84580

 Decision under appeal 

Court or tribunal:

Workers Compensation Commission of NSW

Citation:

[2020] NSWWCCPD 7

Date of Decision:

11 February 2020

Before:

President Judge Phillips

File Number(s):

A1-2010/19

Judgment

1. BASTEN JA: On 10 April 2012 the appellant, Octavian Cruceanu, suffered an accident at work when he stepped onto the edge of a block of wood, causing him to stumble and crash into a nearby pillar. There was no dispute that he suffered an injury to his right knee, which required surgery. However, he also claimed that he developed a serious neurological condition in his cervical spine as a result of the accident. It was not in doubt that he suffered from the condition; the dispute concerned the causal relationship between the accident and the condition. His claim was rejected by the workers’ compensation insurer of his employer at the time of the accident.

2. The appellant commenced proceedings in the Workers Compensation Commission for an adjudication of the dispute. On 5 July 2019 an arbitrator dismissed his claim, making an award in favour of the respondent. The appellant lodged an appeal from that decision, which was determined by the President, Judge Phillips, on 11 February 2020. The appeal was dismissed.

3. On 17 March 2020 the appellant commenced a further appeal in this Court, against the determination of the President.

Jurisdiction of this Court

4. The right of appeal to this Court is conferred by s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). The right of appeal is conferred on a party to proceedings before the Commission as constituted by a Presidential member who is aggrieved by “a decision of the Presidential member in point of law”. The constraint on the right of appeal to one in point of law prevents this Court from reviewing findings of fact made by the Commission. Given that the dispute before the Commission turned entirely upon findings based on the medical evidence, the respondent contended that the appeal to this Court must fail.

5. That would be so if the Court were asked merely to review the factual findings of the arbitrator, as confirmed by the President. However, that is not the function sought to be invoked by the appellant. Rather, the appellant asserts that the President erred in law in failing to accept that the errors identified by the appellant before him fell within the scope of his function to intervene in the case of established error.

6. Such a ground of appeal was available because the President was not limited to correcting errors of law. The right of appeal from an arbitrator to a Presidential member of the Commission is conferred by s 352(1) of the Workplace Injury Act. The nature of the appeal is identified in the following provisions:

352   Appeal against decision of Commission constituted by Arbitrator

…

(5)   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.

…

(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.

(7)   On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by an approved medical specialist under Part 7).

7. It is clear from the first sentence in subs (5) that an appellant may assert “any error of fact, law or discretion”. The second sentence of subs (5) indicates that the appeal is not to be a fresh proceeding in which the Presidential member may reach his or her own decision, whether or not error has been established on the part of the arbitrator. However, nor is the function so described an appeal in the strict sense, in that the Presidential member may accept fresh evidence and further evidence in addition to or substitution for that received by the arbitrator: subs (6).

8. The scope of the appeal available under s 352 does not depend upon nice distinctions between facts, law and discretion; rather, these three terms encompass the full range of functions exercisable by an arbitrator. The most important word is “error”. By requiring satisfaction as to the existence of an error, s 352 precludes a Presidential member upholding an appeal merely on the ground that he or she thought a different outcome was to be preferred. [1]

   1. Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [17].

9. The existence of an error of fact, law or discretion is a matter to be determined by the Presidential Member, not by this Court. Thus, the appellant must establish in this Court not merely that there was an error on the part of the arbitrator, but that the President erred in point of law in determining that there was not.

10. Against this background, it is convenient to turn to the errors relied upon, before considering how they should be characterised.

Evidence before arbitrator

11. The evidence before the arbitrator comprised a statement by the appellant, dated 7 April 2017, and a volume of medical reports, notes and related documents. It is convenient to set out some passages from the statement of the appellant, who was not cross-examined. First, he described the accident on the morning of 10 April 2012. The appellant was carrying a toolbag which weighed about 15kgs as he entered a warehouse through a side door. The inside area was unlit. As he entered, he tripped over a block of wood which was used to prop the door open for couriers during the day. [2] His explanation continued:

“18.   As I stumbled I overbalanced and my body jerked back and I tried to regain my balance as my toolbag swung forward. My toolbag swinging on my shoulder made it more difficult to regain my balance. My right knee twisted and I reached out with my right hand to grab a concrete pillar to arrest my fall. I was leaning over half fallen by this time. As I crashed into the pillar with my right hand there was a sudden jolt up my body and I heard a cracking sound. I was still holding the box of parts in my left hand.

19.   I immediately felt severe pain in my right knee and right wrist. I tried to place weight on my right leg but I could not do it, so I hobbled over to the depot office.”

2. Statement, par 17.

12. Secondly, he described the aftermath. He was off work for about three weeks. When he returned he had pain in his right knee and wrist and lower back. He described his attempt to return to his preinjury duties, explaining:

“27   My right leg and back pains in particular were worsening. I began to experience numbness in my right leg. I had never experienced this before. It frightened me.”

13. He also said he experienced “pain and stiffness in my neck and across between my shoulders.” [3] He said that his right leg and back were his main problems at that time.

    3. Statement, par 28.

14. He was referred to an orthopaedic surgeon for surgery on his right knee in July 2012. He returned to work in November 2012, on light duties. In October 2013 his condition had not greatly improved and he underwent further surgery on his right knee. He continued to experience “regular pain in my lower back with shooting pain and occasional numbness into my right leg.” [4] His account of that time continued:

“38.   I also found at this time my neck symptoms, which had commenced in the weeks following the accident and continued to worsen, were causing me much more difficulty. I would get numbness in my hands, losing the feeling in the last two fingers of each hand. I had never experienced anything like this prior to the accident.

…

40.   In early 2014 I was referred to orthopaedic surgeon Dr Charles New in respect of my worsening back and neck problems caused by the accident. He organised some radiological investigations and when the results came in told me that I had damaged my cervical spine such that my spinal cord was under pressure. He told me that I needed to see a spinal surgeon as a matter of urgency because I was potentially in danger of paralysis.

41.   Dr New referred me to orthopaedic spinal surgeon Dr Ian Farey whom I saw in May 2014.”

4. Statement, par 37.

15. The appellant underwent surgery for decompression of the spinal cord and fusion of three vertebrae in June 2014. He underwent further surgery in July 2015.

16. The later medical history was confirmed by reports obtained from Dr New and Dr Farey. In a report dated 17 April 2014 Dr New reported to the appellant’s general practitioner that he was concerned about “the commencement of myelomalacia leading towards cervical myelopathy.” He continued:

“With this in mind I have sent him to see one of Australia’s experts in this condition, Dr Ian Farey, who will give an opinion regarding his presentation and ongoing treatment.”

17. Dr Farey saw the appellant in May, reporting to his general practitioner on 15 May 2014. Dr Farey described the appellant’s condition in the following terms:

“Mr Cruceanu has experienced intermittent neck pain for a period of six months and his symptoms were of spontaneous onset. At present he has constant pain related to the posterior aspect of the cervical spine which is exacerbated by rotation. He also experiences bilateral upper limb pain radiating to the wrist which is present most of the time. During the past six months he has noticed numbness in relation to the ring and little fingers of both hands and hand stiffness. He also experiences paraesthesia in his upper limbs and has subjective weakness in his arms. There is mild fine motor impairment with respect to hand function particularly with handling small objects and doing up buttons. He also experiences intermittent unsteadiness of gait.”

18. In his report of May 2014 Dr Farey described the medical imaging as follows:

“X-rays of the cervical spine revealed the presence of degenerative disc disease extending from C2-3 to C5-6 with retrolisthesis at the C5-6 level. Spontaneous fusion had occurred at the C3-4 level. The spinal canal was narrow with the space available for the spinal cord being 11mms at C5-6. Magnetic Resonance Imaging of the cervical spine revealed the presence of retrolisthesis at C5-6 with cord compression and myelomalacia. Bilateral foraminal stenosis was present at this level. Magnetic Resonance Imaging of the lumbar spine revealed the presence of mild degenerative disc disease at the L4-5 and L5-S1 levels with annular tears but no evidence of nerve root compression.”

19. The history taken by Dr Farey, which was consistent with other medical histories in evidence, was that the appellant had not complained of the symptoms in his neck and arms until some six months before he saw Dr Farey, that is in late 2013. However, on 21 August 2014, a few days after seeing the appellant, Dr New prepared a detailed report for the appellant’s solicitors. In relation to a specific question as to whether his employment had been a substantial contributing factor to his injuries or had aggravated these injuries, Dr New expressed no doubt that there was a causal link between the accident during employment and his knee pathology. He continued:

“With regard to his cervical spine, he states that he had not had any problems with his neck prior to this incident, but the spinal stenosis that he had would almost certainly have predated that incident.

He states that his back was the predominant issue after his accident rather than his neck, although he had minor neck discomfort. It is obvious that on investigation after history taking that he did have significant neck pathology which was investigated and found to be of a nature that required urgent surgery.”

20. A number of issues arose from this material. First, there is no doubt that his myelomalacia had been identified in mid-2014. Secondly, in August 2014 Dr New referred to “minor neck discomfort” existing at an indeterminate time after the accident. Dr Farey recorded a history of such pain from late 2013, some 18 months after the accident. Thirdly, Dr New made no comment in relation to any causal link between the cervical spine condition and the accident.

21. Dr Farey provided further reports to the appellant’s solicitors on 25 September 2014, and again on 31 October 2014. These reports were largely confined to describing the appellant’s ongoing treatment.

22. A critical element in the appellant’s case was a report prepared by Dr Farey on 2 August 2018. The first two-thirds of the report set out the background; the last one-third contained Dr Farey’s “opinion”. There were three passages of significance in the first part. Referring to the history obtained from the appellant, Dr Farey noted:

“Importantly he has also reported numbness in his leg. This occurred on a regular basis. Although Mr Cruceanu has evidence of degenerative disc disease in the lumbar spine there is no evidence of nerve root compression which would cause numbness in his leg. Shortly following the accident he has stated that he developed neck and bilateral shoulder pain. His back pain continued to be a problem and he continued to experience numbness in his right leg. In October 2013 he reported that he would also experience numbness in his hands and in particular the ring and middle fingers of each hand. This is a very common symptom of spinal cord compression.”

23. By way of further explanation, Dr Farey continued:

“Cervical spinal cord compression is a painless condition usually presenting with impaired fine motor function in the hands, numbness, paraesthesia particularly in relation to the ulnar 2 fingers of the hand, unsteadiness of gait, numbness in the lower limbs and subjective weakness in the arms and legs. Neck pain is secondary to underlying cervical spondylosis. The upper limb pain experienced by Mr Cruceanu was probably related to the foraminal stenosis present in relation to the marked degenerative disc disease at the C5/6 level.”

24. Thirdly, Dr Farey noted that an MRI of the cervical spine dated 4 February 2014 had revealed “the presence of significant spinal cord compression at the C5/6 level underlying myelomalacia which reflects damage within the spine cord.”

25. There were three features of this explanatory material and history which were notable. First, Dr Farey had a copy of the appellant’s statement of 7 April 2017. It seems likely that this was the source of the statement that the appellant had experienced numbness in his right leg. That account appeared in his statement prior to his referral for surgery on his right knee in July 2012 (that is within two or three months of the accident).

26. Secondly, the description of cervical spinal cord compression as a “painless condition” was capable of explaining any failure to report (on the part of the appellant) and to diagnose (on the part of the medical experts) cord compression at the C5/6 level at an earlier time. Thirdly, the reference to MRI reports of 5 February 2014 demonstrated objectively the existence of the spinal cord compression with myelomalacia.

27. Dr Farey’s statement of opinion may be broken into several parts. The first part read as follows:

“I was not provided with a complete history of his neurological symptoms at the time of initial consultation. However, historically he has experienced numbness in his right lower limb from the time shortly following the accident in the absence of nerve root compression in the lumbar spine. This numbness is likely to have arisen from the cervical spine and spinal cord compression which as I have stated is a painless condition other than neck pain secondary to underlying cervical spondylosis.”

This passage clearly relied upon the history of leg numbness as a basis for identifying cord compression in the cervical spine at a date reasonably close to the accident. The neck pain was not indicative of cord compression, but rather a symptom of the underlying degenerative condition.

28. The second passage in the opinion read as follows:

“He subsequently developed major symptoms of spinal cord compression. Myelomalacia within the spinal cord does not develop acutely unless there is an acute spinal cord injury. Generally this is a finding which develops with the passage of time secondary to spinal cord compression.”

As explained in the third passage from the background material, myelomalacia is a condition (softening of the spinal cord) which results from (“reflects”) damage within the spinal cord, being the cord compression.

29. The third passage in the opinion was as follows:

“I have no doubt that Mr Cruceanu had pre-existing cervical spondylosis as evidenced by his history of intermittent neck pain with his work related activities as is detailed in his statement. He had significant degenerative change at the C5/6 level with a degree of instability.”

This was a statement as to his pre-existing degenerative condition.

30. The fourth passage read as follows:

“It is entirely possible that the tripping injury with the weighty bag swinging on his shoulder has caused further problems in his cervical spine in view of the experience of neck pain following the accident. … In my opinion the onset of neck pain following the accident[,] the description of intermittent numbness in the right lower limb and the subsequent development of more advanced symptoms in the upper limbs including numbness coupled with the presence of instability at the C5/6 level as manifested by retrolisthesis and the presence of myelomalacia which takes time to develop is indicative of an exacerbation of his underlying condition following his accident of 10th April 2012.”

31. The first sentence in this passage identified a causal link between the accident and the “further problems in his cervical spine”; the second sentence stated that the symptoms which had earlier been described as “very common symptom[s] of spinal cord compression” were “indicative of” exacerbation of his underlying degenerative condition. The last statement provided a clearer opinion of a causal relationship amounting to “exacerbation” of the underlying degenerative condition.

32. The passage which has been left out of the last extract read as follows:

“I remain uncertain as to the reason that the detailed history was not provided to me at the time of initial consultation other than the fact that he was very distressed by his pain and loss of neurological function.”

That statement, it may be inferred, was intended as an explanation for the conclusion that there was a causal connection between the appellant’s accident and the myelomalacia, an opinion which Dr Farey had not previously expressed in clear terms.

Proceedings before arbitrator

33. The appellant claimed before the arbitrator that he suffered from two parallel pathologies. One was the underlying cervical spondylosis; the second was the more serious pathology revealed by the MRI scan of 5 February 2014. The arbitrator was taken through Dr Farey’s opinion of 2 August 2018. Counsel then summarised the appellant’s case as follows: [5]

“So this is not a typical case, this is not one of the many, many cases you’ve heard over the years where you’re taking [taken] through … reams of GP’s notes and contemporaneous medical reports. Dr Farey’s opinion is entirely consistent with the idiosyncratic development of this particular pathology that the applicant has suffered.

Now, that pathology, according to his treating specialist who operated on him twice and [has] seen him many times and in my respectful submission, is a respected orthopaedic surgeon, he says that you need an acute incident. So again, those words myelomalacia within the spinal cord does not develop acutely unless there is an acute spinal cord injury.

The respondent’s case doesn’t take that important aspect on board at all and you haven’t been pointed to any alternative explanation. The traditional analysis will not assist you in terms of looking at the contemporaneous notes and absence of neck pain. The neck pain is secondary to cervical spondylosis or, indeed, the aggravation of that cervical spondylosis but the surgery that Dr Farey performed and the rectification surgery that occurred was all for the underlying and sinister pathology that was caused by, in my respectful submission, the incident of 10 April 2012 [which] developed in a clandestine manner and presented itself on radiology and quite thankfully was picked up at an early stage.”

5. Tcpt, 11 June 2019, p 24(15).

34. Counsel accepted before the arbitrator that the appellant’s case stood or fell on Dr Farey’s opinion of 2 August 2018. [6]

    6. Tcpt, p 26(25).

Arbitrator’s reasons

35. The arbitrator identified the submissions made to him briefly in the following terms:

“6.   … Mr Callaway [for the respondent] relied upon the absence of any reference to neck or back pain in the contemporaneous medical record. He submitted that the contemporaneous medical record should be preferred to the evidence of the applicant in this case. He submitted that the applicant's statement, prepared years after the subject accident, involved a ‘reconstruction’ of events in a manner that was favourable to his case.

7.   Mr Mrsic [for the appellant] relied primarily upon the opinion of Dr Farey, the orthopaedic surgeon, who had operated on the applicant's cervical spine to relieve spinal cord compression. Dr Farey had expressed an opinion based on the applicant's statement. He supported a connection between the injury and the applicant's cervical pathology. There was no countervailing evidence in respect of important aspects of his opinion.”

36. The arbitrator then set out in careful detail the evidence given, including a summary of the applicant’s statement and of the numerous medical reports. The first passage in the section headed “Discussion and finding”, with which the appellant took issue, was in the following terms:

“58.   In the context of the conflicting medical opinions, there is an important factual matter, which must be determined by the Commission. When did the applicant develop symptoms in his neck, his upper limbs and ‘intermittent numbness’ in his right lower limb? On the assumption, that these symptoms developed at the time of or soon after the incident, Dr Farey has opined that it is possible that they were caused by it. This constellation of symptoms is indicative of an exacerbation of the applicant's underlying condition by the incident of 10 April 2012.”

37. The appellant challenged this passage as revealing an incipient misunderstanding of Dr Farey’s opinion. He submitted that Dr Farey’s opinion did not turn on the appellant’s account of when particular symptoms developed, but on the fact that myelomalacia was an acute condition which required a trauma in order to develop. Further, this passage provided the first indication that the arbitrator might reject the appellant’s evidence as to the history of his symptoms.

38. The latter aspect of the reasoning was developed by the arbitrator:

“70.   The applicant did not give oral evidence at the arbitration hearing. There was no application to cross-examine him. In those circumstances, I am reluctant to make any finding about what has been described as general reliability or credibility. Nonetheless, I have considerable doubt as to whether the applicant experienced the onset of neck and upper limb symptoms as set out in his statement of 7 April 2017. The applicant states that neck and shoulder pain developed almost immediately after the incident of April 2010 [sic – 2012] and after ‘1-2 months was becoming quite a problem for me.’ Thus, on his account, there was the onset of neck pain shortly after the incident, which gradually increased in severity so that by July 2010, it was ‘a problem’.

71.   It is difficult to reconcile that evidence with the complete absence of complaint of neck pain in the medical record over a period of 18 months. …”

39. The arbitrator then stated:

“73.   The applicant says that he did not think ‘there was any thing that he could do about it’. But, that sits uncomfortably with the fact that he did give an account of neck pain to his general practitioner some three weeks before the injury.”

40. This last proposition appears to have involved a factual error in that the complaint of neck pain to his general practitioner occurred some two years before the accident, not three weeks. However, the appellant said in his statement that the pre-injury pain had not been incapacitating and had been nothing like the pain following the accident. If much were to be made of this material by the respondent, it behoved the respondent to cross-examine the appellant. That did not happen. The arbitrator continued:

“74.   In my opinion, the evidence from the medical record is entirely consistent with the applicant's assertion to Dr Farey at his initial consultation that his neck pain commenced some six months before the consultation in May 2014. That is also approximately the time, when Dr Kodsi recorded that the applicant had right-sided paraesthesia affecting his upper and lower limb. I am not satisfied that the applicant has established on the balance of probabilities that his cervical symptoms became manifest or, on the assumption that the applicant had some intermittent prior problems, deteriorated at the time of or following the injury. It follows from that finding that I would be cautious in accepting the applicant's account of the development of his symptoms following the injury.”

41. The arbitrator then referred to Dr Farey’s report of 2 August 2018, concluding:

“79.   I have concluded that factual assumptions upon which Dr Farey has founded his opinion have not been proven. As Mr Mirsic recognised, there is no compelling evidence which would establish injury to the neck other than Dr Farey. Dr New, possibly wittingly, did not positively assert a causal nexus between the injury and the applicant's cervical myelopathy.”

42. The first sentence of par 79 suggested that the intention to treat the appellant’s evidence with “caution” had crystallised into non-acceptance. However, the appellant’s submissions in this Court did not focus on that factor, but rather relied on the fact that the arbitrator had treated with that evidence as a basis for submitting that the arbitrator had misunderstood Dr Farey’s opinion. Accordingly, it is necessary to note the manner in which the arbitrator dealt with Dr Farey’s opinion.

“75.   I return now to the opinion of Dr Farey in his report of the 2 August 2018. It should be borne in mind that Dr Farey expresses his hypothesis as a possibility. As the case law makes clear, however, that language is by no means inconsistent with a finding on the balance of probabilities that the applicant suffered injury; most recently, see the discussion in Tudor Capital Australia Pty Limited v Christensen. [7] Indeed, medical practitioners often use the word ‘possible’, when there is no other likely cause of the pathology addressed other than the injury. That, however, is not the case here.

76.   I reiterate that Dr Farey opined, as do many of the other specialists in the case, that the applicant had a significant pre-existing spondylosis. Dr Farey stated that it was possible that the applicant's injury ‘has caused further problems in his cervical spine in view of the experience of neck pain following the injury’ (my italics). The experience of neck pain was indicative of an exacerbation or aggravation of the applicant's spondylosis which, in turn, either caused or exacerbated the applicant's myelomalacia.

77.   Absent an acceptance of neck pain following the incident, it is difficult to postulate how the incident caused injury to the applicant's neck. I do not doubt that the incident was capable of causing damage to a susceptible neck. The question, however, is whether it did.

78.   Certainly, there are references to pins and needles in the applicant's thigh well before the onset of neck and upper limb pain and paraesthesia. However, the time of onset of these symptoms is also contestable. Further, there are other competing diagnoses which may account for these symptoms. More importantly, in the absence of neck pain it is difficult to know what to make of the symptoms. Are they a manifestation of the applicant's underlying cervical spondylosis causing the inexorable onset of myelomalacia? Or are they somehow connected with an injury to the neck in the incident? It seems to me that to connect the paraesthesia in the applicant's upper thigh, which was first noted by doctors many months after the incident with an injury to the neck involves considerable speculation.”

7. [2017] NSWCA 260 at [369]-[383] (McColl JA).

Appeal to President

43. The grounds of appeal to the President, as set out in the appellant’s written submissions in the Commission, relevantly raised two principal issues, set out in grounds 3 and 4. The first read:

“GROUND 3 – FAILURE TO DEAL WITH CORE SUBMISSION

12.   The worker’s fundamental submission was that there were two parallel pathologies affecting the worker’s cervical spine.

13.   The first pathology was the pre-existing spondylosis which gave the worker odd niggling problems prior to the accident. It may well be that the accident caused some acceleration of those changes but that is neither here nor there. As was made clear during the arbitration, Dr Farey did not perform surgery on the worker in order to correct his cervical spondylosis.

14.   The second pathology was the myelomalacia ie injury to the spinal cord. This was sinister, clandestine and progressive pathology set in train by the work accident.”

44. The second read:

“GROUND 4 – TAKING INTO ACCOUNT AN IRRELEVANT CONSIDERATION

20.   At [79] the Arbitrator found that Dr New ‘possibly wittingly did not positively assert a causal nexus between the injury and the applicant’s cervical myelopathy’. That a doctor did not express a clear view on causation cannot be a relevant consideration: that is an absence of opinion evidence as opposed to opinion evidence. The Arbitrator draws an inference that Dr New’s opinion on causation would not favour the worker: that is hardly fair to the worker. It is a particularly strange inference for the Arbitrator to make in circumstances where he says during oral submissions ‘I see him a lot out here and he doesn’t engage with causal nexus to any great degree…’. … The worker submits that the inference which the Arbitrator did draw regarding the absence of Dr New’s views on causation (in relation to the cervical spine) was gratuitous but also concerning. The reason it is concerning is that it appears to have wrongly influenced the Arbitrator’s mind on the key issue of causation.”

Reasoning of the President

45. The President dealt with ground 3 at [68]-[76] of his decision. [8] He commenced by noting that ground 3 was “not well expressed.”[9] He identified the ground in the following terms:

“[68]   … At one level, this appeal ground complains that the Arbitrator failed to deal with the case that was submitted to him by Mr Cruceanu. Namely, that Mr Cruceanu was suffering from two parallel pathologies in his cervical spine. The first pathology as argued by Mr Cruceanu was a pre-existing cervical spondylosis, the second was the myelomalacia, which is stated as if a fact, as being an injury to the spinal cord. The complaint, so it goes, is that the Arbitrator undertook a conventional analysis when undertaking a review of the medical evidence in order to ascertain the origin or timing of complaints of pain to doctors by Mr Cruceanu. This it is said is an erroneous approach as cervical spinal cord compression, according to Dr Farey, is a painless condition. Although not stated in terms in the appeal ground, this ground appears to allege that as a result of the Arbitrator’s ‘conventional analysis’, an error of fact was committed. That is, had the Arbitrator followed what is described as Mr Cruceanu’s ‘core submission’, that would have led inexorably to the conclusion that the myelomalacia or an injury to the spinal cord had been suffered by Mr Cruceanu.”

8. Cruceanu v Vix Technology (Australia) Ltd [2020] NSWWCCPD 7.

9. Cruceanu at [68].

46. Further, at [70], the President stated:

“It was not posited by Dr Farey, as is now asserted in Ground Three, that there was a proven injury to the spinal cord.”

47. The appellant raised two issues in relation to this approach to ground 3. First, he noted the description of myelomalacia being identified “as if a fact, as being an injury to the spinal cord.” (The emphasis was in the President’s reasons.) The arbitrator did not suggest there was not such an injury: indeed, the appellant submitted, Dr Farey had identified the injury by reference to the MRI of 5 February 2014 which revealed “the presence of significant spinal cord compression … with underlying myelomalacia which reflects damage within the spinal cord.”

48. Despite the appellant’s submission that these passages suggested a misunderstanding on the part of the President as to the appellant’s case, it seems more likely that the President was not suggesting that there was only one condition established, but that he understood the appellant’s submission to have used the term “injury” in its defined sense in the Workers Compensation Act 1987 (NSW), namely “personal injury arising out of or in the course of employment”; the relationship to his employment was undoubtedly contested. Consistently with this reading, the President accepted that the arbitrator had dealt with two separate conditions, stating:

“[72]   The myelomalacia condition referred to by Dr Farey was clearly dealt with by the Arbitrator. Indeed the Arbitrator was careful to ensure that he addressed both conditions afflicting the applicant’s neck, the pre-existing cervical spondylosis and the myelomalacia. It is abundantly clear that the Arbitrator acknowledged and treated the two conditions as separate maladies, which was exactly the case that was put by Mr Cruceanu.”

49. The second complaint made by the appellant of [68] in the President’s reasons related to the final sentence, namely that the appellant’s “core submission”, if followed, “would have led inexorably to the conclusion that the myelomalacia or an injury to the spinal column had been suffered by Mr Cruceanu.” The appellant submitted that that was not what had been put to the President. The appellant acknowledged, both in this Court and in the Commission, that an evaluative judgment was required based on Dr Farey’s report. His complaint about the reasoning of the arbitrator was that there had been a failure to deal with the report in its terms. That was not “an error of fact” as the President opined, but an example of procedural unfairness in the sense of a failure to address the critical argument presented by the appellant.

50. The dispositive reasoning of the President on ground 3 was as follows:

“[73]   The submission described by Counsel for Mr Cruceanu as being ‘core’ relies upon the spinal cord compression as being a ‘painless’ condition in Dr Farey’s words. Counsel described this condition as ‘sinister, clandestine and progressive’. The purpose of this submission is to explain away the absence of any relevant complaint of neck symptoms for a significant period of 18 months after the injury.

[74]   The argument stands in contradistinction to Mr Cruceanu’s own evidence. Extracted at paragraph [44] of this decision is Mr Cruceanu’s evidence that actual neck pain gradually developed since the accident.

[75]   The Arbitrator was correct to approach the evidence in the ‘conventional way’ as he did.”

51. The appellant’s critique of these propositions accepted that the President had reasoned in the same way as the arbitrator, but submitted that the President had thereby committed precisely the same error. Thus, the President referred to counsel’s submission as intended “to explain away the absence of any relevant complaint of neck symptoms for a significant period of 18 months after the injury.” He then referred to the appellant’s evidence of “actual neck pain” gradually developing since the accident. Read in context and having regard to the arbitrator’s reasoning, the terms “neck symptoms” and “actual neck pain” must be understood as having the same point of reference, namely neck pain.

52. The juxtaposition of these statements, and the reference to the submission for the appellant being in “contradistinction” to the appellant’s own evidence makes it hard to be sure what precise point was being made. The reference to the arbitrator approaching the evidence in the “conventional way” referred back to the submission at [68] that he had sought to ascertain the origin or timing of complaints of pain to doctors.

53. While the President referred to Dr Farey’s evidence that spinal cord compression was a “painless condition”, he did not reconcile that opinion with the complaint that the arbitrator had approached the case by looking for complaints of relevant pain. How the absence of complaints of pain would assist in determining the cause of a painless condition was not explained.

54. More problematic, however, in the appellant’s submission, was the failure to address the repeated statements by Dr Farey that “[n]eck pain is secondary to underlying cervical spondylosis”, and as to “neck pain secondary to underlying cervical spondylosis.” Dr Farey contrasted the neck pain (which he treated as irrelevant to myelomalacia) with the reports of numbness and paraesthesia. (The latter term appears to have been the medical description of the “stiffness and the numbness in my hands and fingers” and “losing the feeling in the last two fingers of each hand”, as described by the appellant in his statement.) It was this evidence upon which Dr Farey based his opinion. The appellant’s challenge in ground 3 was that the arbitrator had failed to understand the central premise of the appellant’s case; in this Court, the appellant challenged the President’s failure to understand and determine the primary basis of the appellant’s appeal.

51. Ground 4 took issue with the arbitrator’s description of Dr New’s failure to opine on any causal link between the myelomalacia and the accident as “possibly wittingly”. As the President correctly noted, at [81]:

“Potentially, this phrase, as asserted by Mr Cruceanu, is suggestive that the doctor had a view that there was no causative link but chose not to deal with the question directly.”

56. That was indeed how the appellant sought to challenge this aspect of the arbitrator’s reasoning. In short, the arbitrator appeared to have substituted a negative opinion for an absence of opinion. The President appears to have accepted this reasoning:

“[82]   This allegation might have had some resonance if it was asserted that the inference was wrong. As I have stated above, Dr New does not offer any opinion on the question of causation with regards to Mr Cruceanu’s cervical spine. That is a correct and available conclusion to be drawn from a reading of his report …. At best it might be said that where the Arbitrator uses the phrase ‘possibly wittingly’ he is speculating about Dr New’s motivation in failing to deal with the question of causation regarding cervical pathology in a yes or no manner. But this speculation, if that is what it is, cannot alter the result. The phrase ‘possibly wittingly’ is unhelpful and has led Mr Cruceanu to have suspicions about the intent behind this phrase and the affect (if any) it might have had upon the result.”

57. The appellant submitted that the President had (correctly) accepted that Dr New had expressed no opinion and the suggestion that he held a negative opinion constituted “speculation”. That was an erroneous approach, but the President then dismissed it as immaterial because it “cannot alter the result.” The reason why it could not alter the result was that, far from weighing a negative opinion of Dr New against the positive opinion of Dr Farey, the arbitrator had already dismissed Dr Farey’s opinion as based on “factual assumptions” which had not been made out. Absent acceptance of Dr Farey, the views of Dr New, whether negative or agnostic, could not affect the outcome.

58. The underlying logic of this approach was accepted by the appellant: he conceded that acceptance of Dr Farey was central to his case. In other words, if he did not succeed on ground 3, he could not obtain a rehearing. If he did succeed on ground 3, there would need to be a rehearing which should not be affected by the arbitrator’s “speculation” as to whether Dr New’s agnostic opinion should be understood as a negative opinion.

Error in point of law

59. In Dranichnikov v Minister for Immigration and Multicultural Affairs [10] Gummow and Callinan JJ stated:

“[24]   To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. …

[25]   The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction….”

10. (2003) 77 ALJR 1088; [2003] HCA 26.

60. Kirby J, in considering the difference between jurisdictional and non-jurisdictional error said that:

“[87]   … in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.

[88]   Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.”

61. Hayne J in Dranichnikov agreed with Gummow and Callinan JJ that the applicant was not accorded natural justice because the Tribunal “did not consider the claim which the applicant was then making, and had earlier made, for protection.”[11] Gleeson CJ, who dissented as to the outcome, but not as to matters of principle,[12] was not persuaded that the Tribunal “misunderstood Mr Dranichnikov’s case, or failed to address it.”[13]

    11. Dranichnikov at [95].

    12. Dranichnikov at [1].

    13. Dranichnikov at [7].

62. The authors of Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, [14] have been exercised as to the scope of these statements in Dranichnikov. They state:

“If it imposes a more rigorous standard than that for mandatory relevant considerations, a difficult question of principle arises. Why should the matters that a party wants considered warrant greater attention than those which Parliament says must be considered?”

14. 6th ed, LawBook Co, 2017 at [7.20].

63. On one view, that may be a false question; in most statutory contexts it may readily be inferred that when legislation creates a forum for considering applications, or resolving disputes, the body hearing the matter will be obliged to consider (and rule upon) the claims articulated by the applicant (and the respondent). The content of any application is itself therefore a mandatory consideration.

64. The appellant’s argument before the President in this case identified a question as to the arbitrator’s decision which fell squarely within the parameters identified in Dranichnikov. However, it was not necessary for the President to be satisfied that a question of law arose because his powers of intervention were engaged if satisfied that any error of fact, law or discretion had occurred. However, to interfere with the decision of the President, this Court must be satisfied that he has made an error in point of law. On the appellant’s case, the error of the President was of the same kind as that made by the arbitrator, which was actually an error in point of law. Further, it was contended that because the President failed to recognise that any error had been made by the arbitrator, if this Court were satisfied that the arbitrator had committed an error, whether legal or factual, it should also be satisfied that the President, in failing to identify the error, had erred in law.

65. The latter proposition should not be accepted in those terms. The President can determine factual issues without committing any error in point of law: the reason for failing to identify a factual error will be critical in identifying legal error. It will constitute legal error if it amounted to a failure to deal with the applicant’s case on the evidence.

66. It must be accepted that Dr Farey’s opinion, expressed in his report of 2 August 2018, was a fact; the evidence of the fact was his report and the precise nature of the opinion was a factual inference to be derived by reading the report. The report was not a legal document, the construction of which could involve a question of law. Further, it might not be open to an applicant to complain on an appeal to a Presidential member that an arbitrator had erred in his or her understanding of a medical report if the particular reading contended for by the applicant had not been clearly articulated, unless, perhaps, there was only one reading reasonably available.

67. On the appellant’s case in this Court, and before the arbitrator, Dr Farey opined as to two matters, namely that (i) the appellant suffered from a condition, myelomalacia, which was distinct from the underlying degenerative condition, cervical spondylosis, and (ii) neck pain was a symptom of the latter, but not the former.

68. The President formed the view that the arbitrator was well aware that there were two separate conditions identified by Dr Farey in his report. That reading was open, based on the arbitrator’s reasons. However, that distinction was less important than the correct identification of the symptoms of each. Both the arbitrator and the President treated neck pain as a symptom of myelomalacia. That was a reading of Dr Farey’s report which was not available. An important, and possibly critical, point of distinction identified by Dr Farey was that the neck pain was an indication of the underlying degenerative condition, not the condition which he attributed to the accident. Nor could it be said that there was no complaint of neck pain until 18 months after the accident; consistent with its attribution to the underlying degenerative condition, there was a record of a complaint of neck pain in the appellant’s general practitioner’s notes of 2010, two years before the accident.

69. Although the President noted the reliance placed on Dr Farey’s description of “the spinal cord compression as being a ‘painless’ condition”, at [73], he did so only to identify it as an explanation for the lack of relevant complaints of pain in the medical records in the immediate aftermath of the incident. The President did not address the substance of submission, namely that it explained the internal consistency of Dr Farey’s opinion, namely that spinal cord compression was a possible consequence of the trip and fall, despite the absence of contemporaneous complaints of pain. The President thus failed to address a central challenge to the arbitrator’s reasoning, being a claim based on a medical opinion, which in turn, contrary to the arbitrator’s reasoning, did not turn on an unproven factual premise. This involved an erroneous view of the facts; but it was also a failure to come to terms with the primary basis of the appeal from the arbitrator.

70. Thus in rejecting the appeal, the President adopted the same misunderstanding of Dr Farey’s evidence as to the significance of neck pain, and its absence. The point had been raised in clear terms by the appellant in submissions to the arbitrator set out at [33] above. To misconceive and fail to address the primary basis of the appeal was a failure to address a mandatory consideration and a constructive failure to exercise the function conferred by s 352(1) of the Workplace Injury Act.

71. The appellant’s complaint of error in point of law on the part of the President should therefore be upheld. However, contrary to the President’s understanding of the appellant’s case, it does not inexorably follow that the appellant is entitled an award. The conclusion that the arbitrator erred in this respect (an error which was not detected by the President and was repeated) merely means that the application before the Commission has not been determined according to law. Accordingly, the matter must go back to an arbitrator for reconsideration.

Remittal

72. Because an order of remittal is appropriate, it may be helpful to identify a further concern which was considered in the course of the hearing in this Court, but which is not determinative of the appeal.

73. As is apparent from the extracts from the appellant’s statement set out above, the appellant had identified numbness in his hands and paraesthesia “in the weeks following the accident”. [15] This evidence was clearly important, and arguably critical, to Dr Farey’s opinion as to the relationship between the myelomalacia and the accident. The manner in which the arbitrator dealt in a cascading fashion with his concerns as to the reliability of the appellant’s evidence have been set out above. They appear to have found their resting point in a conclusion that the “factual assumptions” upon which Dr Farey founded his evidence had not been proved. [16] The factual assumptions are not identified in that paragraph, but they may have related to the neck pain and the “right-sided paraesthesia” referred to by the arbitrator at par 74. At par 70, the arbitrator had referred to the appellant’s evidence of “the onset of neck pain shortly after the incident”, and said that this was difficult to reconcile with “absence of complaint of neck pain in the medical record over a period of 18 months”: par 71.

    15. Statement at par 38.

    16. Arbitrator’s decision at par 79.

74. Apart from illustrating the primary error, these findings appear to involve a rejection of the unchallenged evidence of the appellant. If the suggested inconsistency were to be relied on, it would generally be procedurally unfair for a fact-finder to reject unchallenged evidence of a party unless the party had been given an opportunity to explain or rebut the apparent inconsistency.

75. The President seems to have been alert to a possible problem in this regard. There was a challenge before the President to an aspect of the reasoning in the arbitrator’s par 79, which was not pursued on appeal. However, the President stated in relation to that paragraph:

“[94]   Mr Cruceanu has failed to prove that the Arbitrator was wrong when he said ‘there is no compelling evidence which would establish injury to the neck other than Dr Farey.’ In many respects this appeal point is a collateral attack upon the Arbitrator’s findings regarding Mr Cruceanu’s statement in circumstances where Mr Cruceanu has not pursued any appeal ground directed at those findings.”

Orders

76. I propose the following orders:

1. Allow the appeal and set aside the determination by the President of Workers Compensation Commission given on 11 February 2020.

2. Set aside the award made by the arbitrator in the Workers Compensation Commission on 5 July 2019.

3. Remit the matter to the Commission to determine the appellant’s application to resolve a dispute according to law.

4. Order that the respondent pay the appellant’s costs in this Court.

77. MEAGHER JA: Although the appellant’s work accident occurred on 10 April 2012, his current claim, for lump sum compensation for injury to his cervical spine, was not made until 28 April 2016 and following earlier notifications of injuries to his lumbar spine and cervical spine arising from that accident. The workers’ compensation insurer disputed those earlier notifications, as well as that application for lump sum compensation.

78. The evidence in support of the application included a statement of the appellant dated 7 April 2017 and a medical report of Dr Ian Farey, a specialist in orthopaedic spinal surgery, dated 2 August 2018. Dr Farey first saw the appellant in May 2014, on the recommendation of Dr Charles New, and performed “anterior decompression and fusion” surgery at the C5/6 level of his spine on 11 June 2014. Dr Farey wrote several letters in the period between that surgery and August 2018 in the form of reviews of the appellant’s cervical spine condition to his general practitioner or reports to his solicitors.

79. On 5 July 2019 the Commission, constituted by an arbitrator, dismissed the appellant’s claim, making an award for the respondent “in respect of the allegation of injury to the applicant’s neck”. On 11 February 2020, the applicant’s appeal from that determination to the Commission constituted by the President, Judge Phillips, was dismissed. The appeal to this Court is from that order, and brought under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353. The subject matter of such an appeal is limited to “a decision of the Presidential Member in point of law”. That decision need not be separately identified, but must be at least implicit in the ultimate decision of the Commission: see Watson v Qantas Airways Ltd (2009) 75 NSWLR 539; [2009] NSWCA 322 at [104] (Basten JA); and generally Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [73]-[75] (Sackville AJA).

80. It is submitted by the appellant in this Court that the arbitrator, when dealing with his claim, and the President, in dealing with ground 3 of the appeal from the arbitrator’s decision, proceeded upon a reading of Dr Farey’s August 2018 report which was not available, with the result that there was a failure to address his claim that the work accident caused or contributed to his condition of myelomalacia (softening of the spinal cord). That condition was first referred to by Dr Farey in his report to the appellant’s treating doctor (Dr Kodsi) dated 15 May 2014.

81. Specifically, it is said that in his report of 2 August 2018, Dr Farey opined as to two matters, namely (1) that the appellant’s conditions of myelomalacia and cervical spondylosis were separate conditions which might arise independently, and (2) that neck pain was a symptom of the latter, but not of the former. It is then contended that by treating neck pain as a symptom of myelomalacia the arbitrator and the President adopted a wrong reading of Dr Farey’s report; and that in doing so they failed to understand the essential premise of the appellant’s claim, resulting in a constructive failure to address it.

82. In making the same error as the arbitrator, it is said that the President, as had the arbitrator, erred in point of law, the latter by failing to respond to a substantial, clearly articulated argument and the former by failing to identify that error: as to which see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.

83. For the reasons which follow, I do not consider that the arbitrator did not understand or failed to address the appellant’s case based on Dr Farey’s report; or that the President equally erred in not concluding that the arbitrator had misunderstood or failed to address that case. Dr Farey’s opinion that the myelomalacia may have been directly caused by the work accident did not depend on whether neck pain was a symptom of that condition once developed. It depended on whether there had been an acute spinal cord injury that was capable of causing that condition to develop acutely, which may have been the case if, as Dr Farey’s opinion assumed, the appellant experienced neck pain following the accident.

Disposition of the appeal

The argument made to the President

84. It is convenient to start with the argument put to the President. That argument is partially identified at [43] in Basten JA’s reasons. In full it was:

GROUND 3 – FAILURE TO DEAL WITH CORE SUBMISSION

12.   The worker’s fundamental submission was that there were two parallel pathologies affecting the worker’s cervical spine.

13.   The first pathology was the pre-existing spondylosis which gave the worker odd niggling problems prior to the accident. It may well be that the accident caused some acceleration of those changes but that is neither here nor there. As was made clear during the arbitration, Dr Farey did not perform surgery on the worker in order to correct his cervical spondylosis.

14.   The second pathology was the myelomalacia ie injury to the spinal cord. This was sinister, clandestine and progressive pathology set in train by the work accident.

15.   As was made plain in oral submissions and in Dr Farey’s report dated 2 August 2018, cervical spinal cord compression is a painless condition: see p.130 of the ARD. The Arbitrator’s conventional analysis of the complaints of pain to doctors is erroneous.

16.   The worker opened his oral submissions by stressing that this was not a typical case. The Arbitrator was counselled against simply going down the normal path. The conventional analysis does not do justice to the worker’s case. The usual approach does not engage with the peculiar and unusual features of this case.

17.   The Arbitrator’s comment at [71] goes to the heart of the problem where he says that “it is difficult to reconcile that evidence with the complete absence of neck pain in the medical record over a period of 18 months”.

18.   The worker’s application below was for permanent impairment compensation. As was stressed before the arbitration the injury to the cervical spine for which compensation is being pursued is that operated on by Dr Farey ie the sinister pathology, namely myelomalacia.

19.   The worker is left wondering whether the Arbitrator truly understood his case.

85. In essence the argument made is that there was a “failure to deal with a core submission” because the arbitrator had misunderstood the appellant’s case. That case was that in Dr Farey’s opinion the appellant’s myelomalacia (which in para 15 of the argument is equated with “cervical spine cord compression”) was a painless condition. It followed that, in addressing the question whether that condition was due to the work accident, it was “erroneous” and irrelevant to ask whether there was a complaint of neck pain following the accident.

86. As will be seen, that submission overlooks two aspects of Dr Farey’s opinion. The first is that for myelomalacia to develop acutely (as distinct from as a result of the exacerbation of the appellant’s pre-existing cervical spondylosis) there had to be an “acute spinal cord injury”. The second is that Dr Farey’s opinion that the work incident may have caused “further problems to his cervical spine” depended on the assumption that the appellant had experienced neck pain following the accident.

The President’s treatment of that argument

87. At [68] of his reasons the President summarised his understanding of the submission:

... At one level, this appeal ground complains that the Arbitrator failed to deal with the case that was submitted to him by Mr Cruceanu. Namely, that Mr Cruceanu was suffering from two parallel pathologies in his cervical spine. The first pathology as argued by Mr Cruceanu was a pre-existing cervical spondylosis, the second was the myelomalacia, which is stated as if a fact, as being an injury to the spinal cord. The complaint, so it goes, is that the Arbitrator undertook a conventional analysis when undertaking a review of the medical evidence in order to ascertain the origin or timing of complaints of pain to doctors by Mr Cruceanu. This it is said is an erroneous approach as cervical spinal cord compression, according to Dr Farey, is a painless condition. Although not stated in terms in the appeal ground, this ground appears to allege that as a result of the Arbitrator’s “conventional analysis”, an error of fact was committed. That is, had the Arbitrator followed (I interpolate, understood) what is described as Mr Cruceanu’s “core submission”, that would have led inexorably to the conclusion that the myelomalacia or an injury to the spinal cord had been suffered by Mr Cruceanu.

88. That is in my view an accurate exposition of the articulated argument, which does not misstate or misunderstand the appellant’s submission. It shows that the President was alive to the appellant’s complaint that the case before the arbitrator that was not dealt with was or included that Dr Farey’s opinion involved two distinct conditions, and that the second condition, myelomalacia, or spinal cord compression, was a painless condition.

89. The President’s disposition of the argument insofar as it concerned the failure to address two “parallel pathologies” appears at [72]:

72.   The myelomalacia condition referred to by Dr Farey was clearly dealt with by the Arbitrator. Indeed the Arbitrator was careful to ensure that he addressed both conditions afflicting the applicant’s neck, the pre-existing cervical spondylosis and the myelomalacia. It is abundantly clear that the Arbitrator acknowledged and treated the two conditions as separate maladies, which was exactly the case that was put by Mr Cruceanu.

90. Basten JA concludes (at [68]) that “the view that the arbitrator was well aware that there were two separate conditions identified by Dr Farey in his report... was open, based on the arbitrator’s reasons”. I agree with that conclusion. For that reason this aspect of the President’s decision involved no error of law.

91. At [73]-[76], the President then dealt with the argument concerning the arbitrator’s asserted misunderstanding of the significance of neck pain:

73.   The submissions described by Counsel for Mr Cruceanu as being “core” relies upon the spinal cord compression as being a “painless” condition in Dr Farey’s words. Counsel described this condition as “sinister, clandestine and progressive”. The purpose of this submission is to explain away the absence of any relevant complaint of neck symptoms for a significant period of 18 months after the injury.

74.   The argument stands in contradistinction to Mr Cruceanu’s own evidence. Extracted at paragraph [44] of this decision is Mr Cruceanu’s evidence that actual neck pain gradually developed since the accident.

75.   The Arbitrator was correct to approach the evidence in the “conventional way” as he did.

76.   Counsel for Mr Cruceanu complains that: “The worker is left wondering whether the Arbitrator truly understood his case.” Unfortunately for Mr Cruceanu, the Arbitrator understood his case all too well. Ground Three is not made out as no error has been established.

92. Paragraph 73 is another accurate rearticulation of the appellant’s submission to the arbitrator. Paragraph 76 is a conclusory assertion, accompanied by an unfortunate, but presently immaterial, remark by the President.

93. Paragraphs 74 and 75 contain the President’s reasoning as to why the arbitrator’s conclusion involved no error, and thus are critical. At the same time they are regrettably brief, to the point of obscurity. However, inadequate reasons in this respect is not relied upon in this Court as an error in point of law on the President’s part.

94. Those paragraphs seize on the background against which a possible relationship of causation between the accident and the myelomalacia came to be expressed by Dr Farey in 2018, after he had been treating the appellant’s cervical spine condition for over 4 years. They fall to be considered in circumstances where the appellant’s evidence extracted by the President at [44] was rejected by the arbitrator on the basis that the “evidence from the medical record is entirely consistent with the applicant’s assertion to Dr Farey at his initial consultation that his neck pain commenced some six months before the consultation in May 2014” (Arbitrator’s Reasons at [74]). That finding of fact, made in circumstances where the appellant did not give oral evidence and was not cross-examined before the arbitrator, also did not form any part of the appellant’s case as to there being material legal error in the decision of the President.

95. To understand the way in which the arbitrator approached and dealt with the claim, it is necessary first to refer to the appellant’s evidence and to the earlier opinions and reports of Dr Farey and Dr New.

The appellant’s evidence and Dr Farey’s reports and opinions

96. The appellant’s evidence at para 28 of his statement of 7 April 2017, which was part of the material provided to Dr Farey for the purpose of preparing his August 2018 report, was:

I was also by this time experiencing pain and stiffness in my neck and across between my shoulders. This had gradually developed since the accident, and after 1-2 months was becoming quite a problem for me. I thought maybe it was because I was leaning over tables more at work and was more sedentary.

97. In his letter to Dr Kodsi of 15 May 2014, Dr Farey stated that the appellant had “experienced intermittent neck pain for a period of six months” and that his symptoms of “neck pain and numbness in his upper limbs” were “secondary to cervical spondylotic myelopathy” which required surgery, namely “anterior decompression, stabilisation and fusion at the C5/6 level”. He also noted that the MRI of the appellant’s cervical spine revealed the presence of “retrolisthesis at C5/6 with cord compression and myelomalacia”. The radiologist’s report of that MRI concluded that there was “mild cord compression at the C5/6 level”. Following that anterior decompression and fusion surgery, and based on a further MRI conducted “in the post-operative period”, Dr Farey reported the “presence of canal narrowing at the C5/6 level, but no anterior cord indentation, which was present prior to surgery. There was no evidence of [ongoing] myelomalacia.”

98. On 21 August 2014, Dr New wrote to the appellant’s solicitors following a consultation with the appellant two days earlier. The documentation provided to him included Dr Farey’s letter of 15 May 2014 and the post-operative MRI of the appellant’s cervical spine. Dr New diagnosed the appellant as having “C5/6 early cervical myelopathy”, noting Dr Farey’s earlier opinion that his compression of his spinal cord at C5/6 “was very severe” and “too great to ignore”.

99. Dr New’s summary of Dr Farey’s diagnosis was confirmed by Dr Farey’s report to the appellant’s solicitors dated 25 September 2014. He diagnosed the appellant as having “developed symptoms of cervical spondylotic myelopathy (spinal cord compression)” as a result of which he advised him to undergo surgery. His investigations had revealed that the appellant’s “spinal canal was narrow on a congenital basis” and “the presence of retrolisthesis at the C5/6 level with cord compression and myelomalacia”. He concluded that the appellant’s symptoms were “secondary to retrolisthesis and cervical spondylosis [the appellant’s underlying condition]”. As such, Dr Farey’s initial opinion in September 2014 was only consistent with the appellant’s myelomalacia being an aspect of his underlying degenerative spinal condition (cervical spondylosis) and the result of the compression of his spinal cord at C5/6.

100. Dr Farey continued over time to review the appellant’s condition, with the benefit of MRI and CT scans. In June 2015, he recommended that the appellant undergo further surgery, namely a posterior C5/6 lamino-foraminotomy stabilisation and fusion. That surgery was performed on 15 July 2015. With the benefit of post-operative x-rays, Dr Farey reported to Dr Kodsi that the appellant continued to have “the residual effects of his documented spinal cord compression which is producing impairment of hand function and numbness” (by letter dated 11 December 2015) and that his current symptoms of “significant neck pain and paraesthesia related to the central three fingers of the left hand” remained “secondary to his previously documented spinal cord compression and associated damage, as he did have myelomalacia within the cord at the time of presentation” (by letter dated 17 June 2016).

Dr Farey’s report of 2 August 2018

101. Dr Farey’s medical report of 2 August 2018 provides an opinion based on a history of symptoms (being that reported by the appellant in his statement of 7 April 2017) different from that which the appellant reported to Dr Farey in May 2014.

102. In his letter, Dr Farey records that the appellant’s later statement reported that “following the accident... he developed significant back and lower limb pain. Importantly he also reported numbness in his leg. This occurred on a regular basis” and that “[s]hortly following the accident he has stated that he developed neck and bilateral shoulder pain...”. That was to be contrasted with the position in May 2014 when the appellant had reported that his neck pain had spontaneously begun six months prior (that is, in late 2013, about 18 months after the accident). In passing, Dr Farey noted in his August 2018 report that he remained “uncertain as to the reason that the detailed history was not provided to me at the time of initial consultation other than the fact that [the appellant] was very distressed by his pain and loss of neurological function”.

103. On those changed factual assumptions as to the symptomatic history, Dr Farey expressed his opinion on the question of injuries caused by the work accident. Before doing so, he made the observations extracted by Basten JA at [27], [28] and [29]. The first of those passages is wholly consistent with the position being, as recorded in Dr Farey’s earlier letters and opinions, that the compression of the spinal cord at the C5/6 level was a consequence of the appellant’s underlying cervical spondylotic myelopathy. The second of those passages, whilst recognising that myelomalacia within the spinal cord may develop acutely, acknowledges that “generally [that condition] develops with the passage of time secondary to spinal cord compression”.

104. In that context, Dr Farey opined:

It is entirely possible that the tripping injury with the weight bag swinging on his shoulder has caused further problems [ie other than his underlying degenerative disease] in his cervical spine in view of the experience of neck pain following the accident. I remain uncertain as to the reason that the detailed history was not provided to me at the time of initial consultation other than the fact that he was very distressed by his pain and loss of neurological function. In my opinion the onset of neck pain following the accident[,] the description of intermittent numbness in the right lower limb and the subsequent development of more advanced symptoms in the upper limbs numbness coupled [with] the presence of instability at the C5/6 level as manifested by retrolisthesis and the presence of myelomalacia which takes time to develop is indicative of an exacerbation of his underlying condition following his accident of 10^th April 2012. [emphasis added]

105. This opinion, by the reference to the “tripping injury” causing “further problems in his cervical spine”, raises two possible relationships of causation between the accident and the appellant’s myelomalacia. In the light of Dr Farey’s earlier general observations about the development of myelomalacia, one possibility was that there had been “acute spinal cord injury” causing the myelomalacia to develop acutely. The other was that there had been an exacerbation of the appellant’s underlying cervical spondylosis, which exacerbation contributed to the development of his myelomalacia over time. Each of these previously unidentified possibilities is said to arise “in view of the [appellant’s] experience of neck pain following the accident”. Those two causal pathways correspond to the “Type of injury” alleged in the appellant’s Application to Resolve Dispute as “Injury and/or aggravation, acceleraton, exacerbation or deterioration of a disease”.

The arbitrator’s reasoning

106. The arbitrator dealt with these possibilities on the basis that each could only be made out if the facts on which Dr Farey’s opinion was based were established. Those facts included the appellant’s “experience of neck pain following the accident” together with “numbness” in his right lower limb. The arbitrator rejected what he referred to as “personal injury simpliciter” (a relationship of direct causation between the accident and the appellant’s myelomalacia which could only arise from an acute spinal cord injury) because the assumption underlying Dr Farey’s opinion, that the appellant had experienced neck pain following the injury (consistent with an acute injury to the spinal cord), was not made out (Arbitrator’s Reasons at [57], [75], [77]-[79]). The arbitrator rejected the argument as to indirect causation by exacerbation of the appellant’s existing cervical spondylosis because the assumption that there was a constellation of symptoms, including neck pain following the injury, was not made out (Arbitrator’s Reasons at [57], [58] and [74]).

107. In each case the arbitrator’s finding of fact that the appellant did not suffer neck pain following the accident was dispositive. His rejection of that aspect of the appellant’s case was not based on any misunderstanding, but rather a rejection of his evidence, after taking into account the “medical record” (Arbitrator’s Reasons at [58], [70]-[74]).

108. The arbitrator’s reasoning that an absence of neck pain following the accident meant that the appellant had failed to establish causation proceeded on an interpretation of Dr Farey’s report as saying that the experience of neck pain following the incident was a necessary element of the (acute) injury or exacerbation of injury claimed. That interpretation did not involve giving Dr Farey’s language any strained meaning, and was certainly an available one. In reaching that interpretation, the arbitrator did not misunderstand the appellant’s case. Nor did his analysis involve treating neck pain as a symptom of myelomalacia. The two possible relationships of causation were myelomalacia developing acutely as a result of an “acute spinal cord injury”, or developing over time due to spinal cord compression in turn resulting from cervical spondylosis, and perhaps a congenitally narrow spinal canal. Once caused, in either of those ways, it may be accepted that the condition of myelomalacia remained painless, although perhaps having other consequences over time.

109. The arbitrator did not misunderstand the significance of neck pain in Dr Farey’s report, as a symptom of the condition of cervical spondylosis, as possibly indicative of the occurrence of an acute spinal cord injury, or as indicative of the exacerbation of the existing cervical spondylosis. Although Dr Farey says in the first of the passages extracted by Basten JA (at [27]) that generally speaking spinal cord compression (which I take to include myelomalacia caused by spinal cord compression) is a “painless condition”, he confirms that if the appellant was suffering from that condition he would nonetheless also have experienced neck pain secondary to his underlying condition.

110. As to Dr Farey’s comments regarding “acute spinal injury”, the medical evidence, including that of Dr Farey, did not otherwise suggest that the appellant’s myelomalacia was the result of an acute spinal cord injury. Rather, it was detected early in its progression following Dr New’s examination of the appellant and the taking of various images of his cervical spine. The appellant’s own submission to the arbitrator was that his myelomalacia had “developed in a clandestine manner and presented itself on radiology [rather than as an acute presentation] and quite thankfully was picked up at an early stage”.

No error in the President’s conclusion

111. The President did not err in concluding at [75] that the arbitrator was correct, in the light of Dr Farey’s opinion, to consider whether the appellant had experienced neck pain following the accident. In doing so he did not misunderstand or misapply Dr Farey’s opinion, or fail to address the appellant’s arguments made in reliance on that report.

Conclusion

112. In my view, the appeal should be dismissed and the appellant ordered to pay the costs of the appeal.

113. EMMETT AJA: This appeal is concerned with the meaning of a report furnished by Dr Ian Farey, an orthopaedic surgeon, in connection with a claim for compensation by the appellant, Mr Octavian Cruceanu (the Worker) under the Workers Compensation Act 1987 (NSW) (the Compensation Act). On 10 April 2012, the Worker sustained injury in the course of his employment with the respondent, Vix Technology (Aust) Ltd (the Employer). The Worker subsequently experienced symptoms in relation to his back and neck, which resulted in his undergoing decompression and fusion surgery to his neck performed by Dr Farey in 2014, with further fusion surgery performed by Dr Farey in 2015. The question was whether the Worker suffered injuries to his neck and back as a result of the work incident of 10 April 2012.

114. On 5 July 2019, the Workers Compensation Commission of New South Wales (the Commission), through an arbitrator (the Arbitrator), determined that the Worker’s claim for permanent impairment compensation in respect of the allegation of injury to his neck should be dismissed. On 11 February 2020, the President of the Commission (the President), on appeal pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Management Act), confirmed the decision of the Arbitrator. By notice of appeal filed on 17 March 2020, the Worker appeals from the decision of the President. The appeal is limited to errors of law on the part of the President.

115. The critical report by Dr Farey is dated 2 August 2018. It relevantly provided as follows:

“At the time of initial consultation on 15th May 2014 [the Worker] complained of neck pain and numbness in his upper limbs. He reported that he had experienced neck pain for a period of 6 months without any precipitating event. He had clear cut symptoms of spinal cord compression.

I have also noted a history of a work injury which occurred on 10th April 2012. Following which he developed back and lower limb pain. At the time of consultation [the Worker] was quite distressed regarding his pain and loss of neurological function and may have not provided a complete history. I have read his statement of 7th April 2017 and note that he reported that he has experienced intermittent neck pain related to his work related duties. He also reported that following the accident which involved tripping over a block of wood with a heavy tool bag on his shoulder he developed significant back and right lower limb pain. Importantly he also reported numbness in his leg. This occurred on a regular basis. Although [the Worker] has evidence of degenerative disc disease in the lumbar spine there is no evidence of nerve root compression which would cause numbness in his leg. Shortly following the accident he has stated that he developed neck and bilateral shoulder pain. His back pain continued to be a problem and he continued to experience numbness in his right leg. In October 2013 he reported that he would also experience numbness in his hands and in particular, the ring and middle fingers of each hand. This is a very common symptom of spinal cord compression.

Cervical spinal cord compression is a painless condition usually presenting with impaired fine motor function in the hands, numbness, paraesthesia particularly in relation to the ulnar 2 fingers of the hand, unsteadiness of gait, numbness in the lower limbs and subjective weakness in the arms and legs. Neck pain is secondary to underlying cervical spondylosis. The upper limb pain experienced by [the Worker] was probably related to the foraminal stenosis present in relation to the marked degenerative disc disease at the C5/6 level.

Magnetic Resonance Imaging of the cervical spine (5th February 2014) revealed the presence of significant spinal cord compression at the C5/6 level with underlying myelomalacia which reflects damage within the spine cord.

Opinion

I was not provided with a complete history of his neurological symptoms at the time of initial consultation. However, historically he has experienced numbness in his right lower limb from the time shortly following the accident in the absence of nerve root compression in the lumbar spine. This numbness is likely to have arisen from the cervical spine and spinal cord compression which as I have stated is a painless condition other than neck pain secondary to underlying cervical spondylosis. He subsequently developed major symptoms of spinal cord compression. Myelomalacia within the spinal cord does not develop acutely unless there is an acute spinal cord injury. Generally this is a finding which develops with the passage of time secondary to spinal cord compression. I have no doubt that [the Worker] had pre-existing cervical spondylosis as evidenced by his history of intermittent neck pain with his work related activities as is detailed in his statement. He had significant degenerative change at the C5/6 level with a degree of instability. It is entirely possible that the tripping injury with the weight bag swinging on his shoulder has caused further problems in his cervical spine in view of the experience of neck pain following the accident. I remain uncertain as to the reason that the detailed history was not provided to me at the time of initial consultation other than the fact that he was very distressed by his pain and loss of neurological function. In my opinion the onset of neck pain following the accident the description of intermittent numbness in the right lower limb and the subsequent development of more advanced symptoms in the upper limbs including numbness coupled with the presence of instability at the C5/6 level as manifested by retrolisthesis and the presence of myelomalacia which takes time to develop is indicative of an exacerbation of his underlying condition following his accident of 10th  April 2012.”

116. In his reasons for his decision,[17] the President observed that Dr Farey considered that it was entirely possible that the tripping injury had caused the further problems in the Worker’s cervical spine, being problems further than cervical spondylosis. His Honour said that it was not posited by Dr Farey, as asserted by the Worker, that there was a proven injury to the spinal cord. His Honour observed that, once Dr Farey indicated that the injury was “a possibility”, it was then open to the Arbitrator to make such a finding should the Worker discharge his burden of proof. His Honour said that the Arbitrator dealt with that issue specifically and found that the Worker had not established injury on the balance of probabilities and that, once the Arbitrator found that Dr Farey’s opinion was not satisfactory, there existed no expert support for the Worker’s complaint.

     17. Cruceanu v Vix Technology (Australia) Limited [2020] NSWWCCPD 7 at [70].

117. In his notice of appeal to this Court, the Worker complains that those findings were not available on the evidence and therefore constituted errors of law. He says that the only rational findings of fact available in relation to Dr Farey’s report were that he had made a positive and definite diagnosis of spinal cord injury, or compression, leading to myelomalacia, as a diagnosis distinct and entirely different from the pre-existing cervical spondylosis causing intermittent neck pain and that failure to so find constitutes an error of law.

118. The Worker asserts in his notice of appeal to this Court that those errors of law caused the decision of the President to miscarry in that his Honour conflated the two distinct diagnoses in the same way as the Arbitrator had and approved the same erroneous rationale applied by the Arbitrator, wherein the case on causation of injury to the neck was dependent upon acceptance of neck pain in the period immediately following the workplace incident.

119. The Worker also asserts that he complained to the President that the Arbitrator had drawn an inference regarding the opinion of Dr New that was not available on any reading of Dr New’s report and was not put to counsel for the Worker by the Arbitrator and was contrary to comments made by the Arbitrator during dialogue with counsel for the Worker at the hearing before the Arbitrator. The Worker complains that the President failed to exercise the jurisdiction conferred by s 352 of the Management Act in finding, erroneously, that the inference regarding Dr New’s opinion could be dismissed and did not enliven the power to intervene on appeal to the President. The Worker asserts that the President should have held that the Arbitrator erred in drawing the inference referred to above, which was both a denial of procedural fairness and an error that enlivened the power to intervene.

120. A preliminary question is whether an error in construing Dr Farley’s report is an error of law. In essence, the Arbitrator concluded that Dr Farey’s report stated that there were two possible pathologies apparent in relation to the Worker’s neck. One was the cervical spondylosis, which pre-existed the workplace incident in 2012. If the surgery and symptoms were related only to cervical spondylosis, and the workplace incident did not in any way exacerbate the cervical spondylosis, the Worker’s claim must fail. The alternative pathology is that the workplace incident gave rise to a compression of the spinal cord, which resulted in myelomalacia. If that were the case, then the Arbitrator erred in rejecting the Worker’s claim.

121. Essentially, the Arbitrator concluded that, notwithstanding a statement made by the Worker in support of his claim for compensation, that he experienced symptoms shortly after the workplace incident, there was no evidence of any complaint by the Worker of relevant symptoms until more than 12 months after the workplace incident. The Arbitrator found, in effect, that, in the absence of symptoms, the workplace incident did not result in compression of the spinal cord. The Arbitrator construed Dr Farey’s report as saying that, in the absence of symptoms within a short time after the incident, the more likely the diagnosis was cervical spondylosis rather than compression of the spinal cord.

122. A critical statement in Dr Farey’s report is that myelomalacia within the spinal cord does not develop acutely unless there is an acute spinal cord injury. Dr Farey made that observation after saying that the Worker had experienced numbness in his right lower limb from the time shortly following the accident in the absence of nerve root compression in the lumbar spine. He said that that numbness is likely to have arisen from the cervical spine and spinal cord compression that, he says, is a painless condition, other than neck pain, which is secondary to underlying cervical spondylosis.

123. Dr Farey had no doubt that the Worker had pre-existing cervical spondylosis and had significant degenerative change at the C5/6 level, with a degree of instability. Dr Farey then observed that it was “entirely possible” that the workplace incident caused further problems in his cervical spine in view of the experience of neck pain “following the accident”, intermittent numbness in the right lower limb and “the subsequent development” of more advanced symptoms in the upper limbs, including numbness coupled with the presence of instability in the C5/6 level and the presence of myelomalacia was indicative of “an exacerbation of his underlying condition”, following the workplace incident. Those observations tend to suggest that it is possible that the workplace incident exacerbated the pre-existing spondylosis. It is quite unclear whether Dr Farey was expressing the opinion that, in the absence of complaint shortly after the workplace incident, it was unlikely that the workplace incident caused either the myelomalacia or exacerbation of the cervical spondylosis.

124. The real question is whether the Worker’s submissions to the Arbitrator included a contention that the evidence supports the conclusion that, notwithstanding the absence of complaint by the Worker shortly after the workplace incident, there was a causal connection between the symptoms reported to Dr Farey as arising some 18 months after the incident and the occurrence of the workplace incident. If that is the contention that was fairly advanced, it is certainly arguable that the Arbitrator did not address or deal with that contention. That would be a failure to exercise jurisdiction and is properly covered by the grounds of appeal to this Court in so far as the President did not find that error on the part of the Arbitrator.

125. I have had the advantage of reading in draft form the proposed reasons of Basten JA and Meagher JA. I agree with Meagher JA, for the reasons given by his Honour, that the President did not err in concluding that the Arbitrator was correct, in the light of Dr Farey’s opinion, to consider whether the Worker had experienced neck pain following the accident. I agree that, in doing so, the President did not misunderstand or misapply either Dr Farey’s opinion or fail to address the Worker’s claim made in reliance on that report.

126. I agree with Meagher JA, for the reasons proposed, that the President was right to conclude that the case before the Arbitrator was decided on the basis that the factual assumption on which Dr Farey’s opinion was based was not made out and that any challenge to the President’s conclusion in that regard depends on challenging the Arbitrator’s interpretation of Dr Farey’s report, an interpretation that was plainly open. That is not a challenge to a decision on a question of law, and this Court has no jurisdiction to entertain such a challenge. I agree with the orders proposed by Meagher JA.

**********

Endnotes

Amendments

03 September 2020 - [73] - Amending "assertions" to read "assumptions"

Decision last updated: 03 September 2020