Cruceanu v Vix Technology (Australia) Limited

[2020] NSWWCCPD 7

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Appeal to the Court of Appeal dismissed – Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203
CITATION:	Cruceanu v Vix Technology (Australia) Limited [2020] NSWWCCPD 7
APPELLANT:	Octavian Cruceanu
RESPONDENT:	Vix Technology (Australia) Limited
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-2010/19
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	5 July 2019
DATE OF APPEAL DECISION:	11 February 2020
SUBJECT MATTER OF DECISION:	Nature of error required on appeal, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 considered
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Mrsic, counsel
Grieve Watson Kelly Lawyers
Respondent:
Mr J Callaway, counsel
Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s Certificate of Determination dated 5 July 2019 is confirmed.

INTRODUCTION

1. The appellant in this matter, Mr Octavian Cruceanu, suffered injury in the course of his employment with the respondent, Vix Technology (Aust) Ltd, on 10 April 2012. It is not disputed that Mr Cruceanu suffered injury his right knee. It was also accepted that Mr Cruceanu suffered pre-existing cervical spondylosis. What was in dispute below and now on appeal, is whether he also suffered injuries to his neck and/or back as a result of the work incident.

BACKGROUND

1. On or about 10 April 2012, Mr Cruceanu sustained injury after stumbling on a block of wood in the course of his employment. Mr Cruceanu twisted his right knee and his right hand/wrist when he crashed into a nearby pillar, causing a sudden jolt up his body, as described in his statement dated 7 April 2017.[1] He was off work for some time in 2012 due to the incident, returning on restricted hours in February 2013. Mr Cruceanu claims to have experienced pain and stiffness in his neck and shoulders some three weeks after the incident, which worsened in late 2013.[2] He had knee surgery in September 2013 and again in October 2013. Mr Cruceanu made a claim for compensation for injury to his knee and neck.  

   [1] ARD, p13 – 14.

   [2] ARD, p 13 and 16.

2. In early 2014 Mr Cruceanu was referred to orthopaedic surgeon, Dr New in respect of his back and neck.[3] He was referred to orthopaedic spinal surgeon, Dr Farey in respect of his neck in May 2014, which resulted in him undergoing decompression and fusion surgery to his neck in June 2014.[4]

   [3] ARD 16, 59 – 60.

   [4] ARD 17, 69, 73.

3. On 30 September 2014, the respondent issued a section 74 notice disputing liability for injury to Mr Cruceanu’s cervical spine and his claim for permanent impairment as a result of injury to the cervical spine. This decision was reviewed internally, with the same outcome being notified on 26 November 2015.

4. On 12 November 2014, Mr Cruceanu’s employment with the respondent was terminated due to him being unable to fulfil the role requirements due to his medical issues. On 15 July 2015 he underwent C4-C7 fusion surgery by Dr Farey.

5. On 26 August 2019, Mr Cruceanu filed an Application to Resolve a Dispute (ARD), claiming lump sum compensation for injury to his lumbar spine and cervical spine  and/or the incident caused an aggravation, acceleration, exacerbation and/or deterioration of a disease in his lumbar spine and/or cervical spine, on the basis of the medical reports of Dr Harrison and Dr Farey.

ON THE PAPERS

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

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

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

THRESHOLD MATTERS

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

THE EVIDENCE

1. The evidence in this matter, including that of Mr Cruceanu, his medical records and the medicolegal opinions furnished by experts qualified by both parties, have been outlined in some detail in the Arbitrator’s Reasons.[5]

   [5] Reasons, p 3 – 9.

2. I do not propose to repeat that evidence here, however, I note the following:

   (a)    in his statement dated 17 April 2017, Mr Cruceanu recollects:

   (i)occasional neck and shoulder pain prior to 10 April 2012, for which he may have sought treatment from his general practitioner;[6]

   (ii)neck symptoms “in the weeks following the accident” continued to worsen, and numbness in his hands;[7]

   (iii)pain and stiffness which developed gradually since the incident, which became quite a problem for him after 1-2 months;[8]

   (b)    prior to the incident, Dr Kodsi, general practitioner, saw Mr Cruceanu on 23 March 2012 for a complaint of lower neck pain;[9] and

   (c)    in the 18 months following the 10 April 2012 incident, Mr Cruceanu had multiple consultations with Dr Kodsi, about a variety of problems including his knee, his wrist and his low back. He was also referred to three neurosurgeons (Dr Pope, Dr Owler and Dr Casikar), two orthopaedic surgeons (Dr Biggs and Dr Sorial) and Dr Antoun, probably a general practitioner, who he saw on behalf of the respondent. No history was taken by any of these medical practitioners and specialists of neck and shoulder pain in the year and a half following the incident.

   [6] ARD p 13, [13].

   [7] ARD p 16, [38].

   [8] ARD p 15, [28].

   [9] ARD 154.

3. I address the evidence relevant to this appeal in greater detail in the discussion section below.

THE ARBITRATOR’S REASONS

1. The Arbitrator referred to and considered the conflicting medical opinions in respect of the question of injury. The Arbitrator noted that an important factual matter to be determined by the Commission was when did Mr Cruceanu develop symptoms in his neck, his upper limbs and “intermittent numbness” in his right lower limb. The Arbitrator noted that on the assumption that these symptoms developed at the time of or soon after the incident, Dr Farey opined that it is possible that they were caused by it and that these symptoms were indicative of an exacerbation of Mr Cruceanu’s underlying condition by the incident of 10 April 2012.

2. Counsel for the respondent argued that Mr Cruceanu’s evidence as to the development of these symptoms was a reconstruction, referring to discrepancies between the accounts of the onset of neck/upper limb pain initially recorded by Dr Farey and that contained in Mr Cruceanu’s statement which was signed several years later. That raised the issue of whether the appellant’s evidence was reliable.

3. The Arbitrator referred to several Court of Appeal cases which cautioned against the use of medical records and the histories contained in medical reports to undermine the credibility of a witness.[10] He also noted that the fact that a medical opinion might be expressed as a possibility does not preclude a finding on the balance of probabilities that an applicant suffered injury.[11] The Arbitrator nonetheless noted the quite different accounts of the development of symptoms that need to be addressed and resolved if the opinion of Dr Farey was to be accepted.  Whilst the Arbitrator was reluctant to make any finding about the appellant worker’s general reliability or credibility, he had considerable doubt as to whether Mr Cruceanu experienced the onset of neck and upper limb symptoms as set out in his statement of 7 April 2017.

   [10] Reasons [67], referring to Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (26 February 2004), Daniel Fitzgibbon v The Water Ways Authority & Ors [2003] NSWCA 294 (3 December 2003) and Mason v Demasi [2009] NSWCA 227 (31 July 2009).

   [11] Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260, [369]–[383] per McColl JA (Christensen),

4. The Arbitrator found it was difficult to reconcile Mr Cruceanu’s evidence with the complete absence of complaint of neck pain in the medical record over a period of 18 months. During this period, Mr Cruceanu had multiple consultations with his general practitioner about a variety of problems including his knee, his wrist and his low back. He was also referred to three neurosurgeons, two orthopaedic surgeons and Dr Antoun, probably a general practitioner, who he saw on behalf of the respondent. Multiple medical examinations by doctors in different specialties failed to elicit a history that the appellant suffered from neck and shoulder pain in the year or more after the incident.

5. The Arbitrator was not satisfied that Mr Cruceanu established on the balance of probabilities that his cervical symptoms became manifest or deteriorated at the time of or following the injury. The Arbitrator was therefore cautious in accepting his account of the development of his symptoms following the injury.

   
   
   

6. The Arbitrator noted that many of the specialists in this case opined that Mr Cruceanu had significant pre-existing spondylosis. However, absent an acceptance of neck pain following the incident, the Arbitrator found it was difficult to postulate how the incident caused injury to the appellant’s neck, noting both the contestable timing of symptoms (including pins and needles and paraesthesia) and the competing diagnoses which could account for these symptoms. Further, in the absence of neck pain it was difficult to know what to make of the symptoms, such that the Arbitrator found connecting the paraesthesia in the appellant’s upper thigh, which was first noted by doctors many months after the incident, with an injury to the neck involved considerable speculation.

   
   
   

7. The Arbitrator concluded that factual assumptions upon which Dr Farey founded his opinion were not proven and that there was no compelling evidence which would establish injury to the neck other than Dr Farey. The Arbitrator noted Dr New, “possibly wittingly”, did not positively assert a causal nexus between the injury and the appellant’s cervical myelopathy. As such, injury having not been proven, Mr Cruceanu’s claim for permanent impairment was dismissed.

   
   
   

8. Mr Cruceanu also pleaded injury to the back, which was given little attention at the hearing. The Arbitrator did not propose to determine the issue of the relationship of the appellant’s back condition to the injury, given the fact that no compensation entitlement turned on a finding of back injury.

9. The Certificate of Determination issued on 5 July 2019 records:

   “1.     Award for the respondent in respect of the allegation of injury to the applicant’s neck.

   2.     Dismiss the claim for permanent impairment compensation.”

GROUNDS OF APPEAL

1. Mr Cruceanu advances five grounds of appeal. They are:

   (a)    Ground One – Failure to decide critical finding of fact;

   (b)    Ground Two – Failure to decide injury simpliciter;

   (c)    Ground Three – Failure to deal with core submission;

   (d)    Ground Four – Taking into account an irrelevant consideration, and

   (e)    Ground Five – Misunderstanding submission by counsel.

LEGISLATION

1. Section 4 of the Workers Compensation Act 1987 Act (1987 Act) relevantly defines “injury” as:

   “Definition of ‘injury’

   In this Act:

   injury

   (a)     means personal injury arising out of or in the course of employment,

   (b)     includes a disease injury, which means:

   (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

   (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and …”

SUBMISSIONS

Appellant’s submissions

As to Ground One

1. In Ground One, Mr Cruceanu submits that the Arbitrator did not make a factual finding that Mr Cruceanu did not experience a “sudden jolt up his body”, which he says is central to his claim. Mr Cruceanu submits he is left not knowing whether his evidence on this critical point has been accepted or not. All that the worker knows is that he was not challenged on that history and that no finding was made about his credibility.

As to Ground Two

1. In Ground Two, Mr Cruceanu submits that while the Arbitrator correctly identified that injury simpliciter was an issue for determination, he did not determine that issue. That is, the Arbitrator did not decide whether the worker suffered an injury to his cervical spine in the course of his employment with the respondent. Further, it is argued that the failure to make the finding of fact about the sudden jolt could have led to this error. Mr Cruceanu notes the closest the Arbitrator came to determining this issue was at [77] where he says that he does not doubt that the incident was capable of causing damage to a susceptible neck.

As to Ground Three

1. In Ground Three, Mr Cruceanu submits the Arbitrator erred in applying a “conventional analysis”, given the atypical nature of his case which involves two “parallel pathologies” affecting his cervical spine, namely the pre-existing spondylosis and the “sinister, clandestine and progressive” myelomalacia spinal cord injury set in train by the work incident. Mr Cruceanu notes that in his report of 2 August 2018, Dr Farey states cervical spinal cord compression is a painless condition.[12] As such, he argues that the Arbitrator’s conventional analysis regarding complaints of pain to doctors (or lack thereof) is in error as it does not engage with the unusual features of his case.

   [12] ARD, p 130.

As to Ground Four

1. In Ground Four, Mr Cruceanu submits the Arbitrator drew a gratuitous and concerning inference that went against his favour, regarding the absence of Dr New’s views on causation in relation to the cervical spine. This submission was in relation to the Arbitrator’s finding that Dr New “possibly wittingly did not positively assert a causal nexus between the injury and the applicant’s cervical myelopathy”.[13] Mr Cruceanu submits that the fact the doctor did not express a clear view on causation cannot be a relevant consideration, and to inferentially construe this against his favour was unfair.

   [13] Reasons [79].

As to Ground Five

1. In Ground Five, Mr Cruceanu submits the Arbitrator wrongly characterised the concession made by his counsel at the hearing, namely in respect of there being no other compelling evidence which would establish injury to his neck other than Dr Farey’s evidence. Mr Cruceanu submits that while it is true that the medical opinion urged upon the Arbitrator was that of the treating orthopaedic surgeon, his evidence regarding the “sudden jolt” was also important evidence. He submits that the incorrect characterisation of the concession may have led the Arbitrator to misdirect himself on causation.

Respondent’s submissions

As to Ground One

1. In respect of Ground One, the respondent submits Mr Cruceanu has misunderstood the Arbitrators decision. The respondent submits it was clear at [77] of the decision that the Arbitrator accepted the worker felt a sudden jolt, however this was not central to Mr Cruceanu’s case because the worker did not describe neck pain as resulting from the jolt. Central to the case was the onset of symptoms associated with the worker’s neck condition and the Arbitrator dealt with that issue with careful analysis of the chronological onset of symptoms (see paragraphs [63] – [65] of Reasons), concluding he was not satisfied on the balance of probabilities that Mr Cruceanu established the manifestation or deterioration of cervical injury following the work incident.

As to Ground Two

1. In respect of Ground Two, the respondent submits the Arbitrator identified the relevant test at [57] and his causation findings deal with the issue squarely. The respondent refers to its submissions in Ground One in respect of Mr Cruceanu’s submission regarding the Arbitrator’s failure to make the finding of fact about the sudden jolt.

As to Ground Three

1. The respondent submits that the expressions used by Mr Cruceanu of “parallel pathologies” and “sinister, clandestine and progressive pathology” do not appear in the evidence and characterise his condition incorrectly. The respondent submits the myelomalacia was “part and parcel of the worker’s degenerative condition” and was addressed by the Arbitrator at paragraphs [53], [54], [76] and [78]. Further, the respondent submits Mr Cruceanu’s submission that myelomalacia is a painless condition contradicts comments made by the worker’s counsel at the hearing that myelomalacia within the spinal cord does not develop acutely unless there is an acute spinal cord injury.[14] The respondent submits that an acute incident would necessarily require a commensurate onset of symptoms, and this was addressed in detail by the Arbitrator.

   [14] T 23, 1 – 6.

As to Ground Four

1. In respect of Ground Four, the respondent submits that no inference was drawn by the Arbitrator in respect of Dr New’s absence of views on causation. This is clear by the Arbitrator’s comment “I see him a lot out here and he doesn't engage with causal nexus to any great degree but you won't be seeing much of ...”.[15]

   [15] T 9, 33 - 34; T 10, 1.

As to Ground Five

1. In respect of Ground Five, the respondent refers to the comment at hearing by Mr Cruceanu’s counsel, Mr Mrsic that “the applicant's case either stands or falls on the opinion or Dr Farey. We accept that if you reject Dr Farey’s opinion then we lose, particularly on the neck but in my respectful submission…”.[16] The respondent submits that in any event the Arbitrator addressed all issues as if there had been no concessions.

   [16] T 26, 24 – 27.

DISCUSSION

1. Given the manner in which Mr Cruceanu has pursued this appeal, it is necessary to set out the principles to be applied as prescribed in the 1998 Act and as applied in the leading cases.

2. Section 352(5) of the 1998 Act sets out the statutory framework for appeals. It provides:

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

3. Roche DP, in Raulston v Toll Pty Ltd,[17] set out the principles by which the Commission will have regard on appeal:

   “First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):

   (a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.

   (b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.

   (c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[18]

   [17] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).

   [18] Raulston, [19].

1. Consequently, the task for appellants such as Mr Cruceanu is to identify the relevant error, that is of either fact, law or discretion and show that the Arbitrator was actually wrong.

2. This point has been relied upon by the respondent[19] and is a proposition which I accept.

   [19] Respondent’s submissions, [2].

As to Ground One

1. Mr Cruceanu complains that the Arbitrator failed to make “a factual finding that the applicant did not experience a sudden jolt during the fall”.[20]

   [20] Appellant’s written submissions, [8].

2. Before considering how the Arbitrator dealt with this issue, it is necessary to set out how the matter was pleaded in terms and what is the evidence underlying that allegation.

3. Firstly, at Part 4 of the ARD, Mr Cruceanu pleads the description of the injury as follows:

   “On or about 10 April 2012 the Applicant sustained injury in the course of his employment with the Respondent when he stepped onto the edge of a block of wood which was lying on the floor causing him to stumble. He overbalanced and his toolbag on his shoulder swung forward. His right knee twisted and his right hand/wrist crashed into a nearby pillar, causing a sudden jolt up the Applicant’s body as described in his statement at paragraphs [15]–[20].

   In the incident the Applicant also injured his lumbar spine and cervical spine and/or the incident caused an aggravation, acceleration, exacerbation and/or deterioration of a disease in the Applicant’s lumbar spine and/or cervical spine as described in the Applicant’s statement at paragraphs [21]–[47] and the attached reports of Dr Harrison and Dr Farey.”[21] (emphasis added)

   [21] ARD, p 5.

4. The relevant paragraphs from Mr Cruceanu’s statement, as referred to in the injury description at Part 4 of the ARD, provide as follows:

   “15.   On Tuesday, 10 April 2012 I arrived at the Burwood depot at 6am as a technician had not attended to work and I had to fill in for him. I worked at the Burwood depot up until about 9am and then I drove to the Regents Park depot.

   16.    I arrived at Regents Park at around 10 am and parked my car next to the warehouse where I usually park. I picked up my tool bag which weighed about 15kg, and hooked it around my shoulder. I then picked up my box of parts. I carried these to the warehouse side door.

   17.    It was a sunny day outside and so when I opened the side door to the warehouse it was very dark inside. No lights had been turned on and my eyes were still adjusting to the lack of light. As I stepped through the door my foot stepped onto the edge of a block of wood which was lying on the floor causing me to stumble. This was often used to prop open the door for couriers coming and going throughout the day. It was in the middle of the walkway near the door in the dark. It was about 40cm long and about 15cm high and was part of a wooden pallet frame.

   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.

   20.    I was in a considerable amount of pain. I sat down for a while to see if I could recover. The pain got worse and after a while I realised that it was not going to go away and I left the office sometime in the afternoon.”[22] (emphasis added)

   [22] Statement of Mr Cruceanu, 7 April 2017, ARD pp 13–14.

5. Mr Cruceanu says that he “initially had about three weeks off work”[23] Mr Cruceanu also says:

   “When I returned to work, my wife drove me to and from work as I could not drive with my right knee and wrist injury. Getting in and out the car hurt my lower back but I could not do anything about that.”[24]

   [23] Statement of Mr Cruceanu, 7 April 2017, ARD p 15, [24].

   [24] Statement of Mr Cruceanu, 7 April 2017, ARD p 15, [25].

6. Mr Cruceanu also said as follows in terms of the symptoms he experienced after he returned to work:

   “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.”[25]

   [25] Statement of Mr Cruceanu, 7 April 2017, ARD p 15, [28].

7. These passages from Mr Cruceanu’s statement are set out by the Arbitrator in the section of his reasons entitled “The evidence of the Applicant”.[26]

   [26] See Reasons [11], [12] and [13].

8. The Arbitrator commenced the decision by describing the dispute in the following terms:

   “Octavian Cruceanu (the applicant) suffered injury in the course of his employment with Vix Technology (Aust) Ltd (the respondent) on 10 April 2012. It is common ground that the applicant suffered injury his right knee. He asserts, however, that he also suffered injuries to his lower back and cervical spine. The respondent disputes these injuries. Thus, the dispute raises the perennial problem in workers compensation cases; whether there is causal nexus between a work incident and a medical condition.”[27]

   [27] Reasons, [1].

9. In the discussion section of the Statement of Reasons, the Arbitrator then proceeded to address the issue in dispute which was injury. Clearly in terms of Ground One, the factual finding regarding whether or not the sudden jolt to Mr Cruceanu’s body occurred is a relevant consideration, as this “jolt” as pleaded is either the injury which then led to the lumbar and cervical pathology or enlivened the disease provisions as pleaded in the second paragraph of the injury description found at Part 4 of the ARD.

10. I think it is tolerably clear from the Arbitrator’s reasons, that Mr Cruceanu’s evidence regarding the “sudden jolt up my body” was accepted. Indeed, this was not contested by the respondent below. The question that was in contest was whether this incident, which encapsulated the sudden jolt as pleaded, caused injury to Mr Cruceanu’s cervical spine. Indeed the Arbitrator stated thus:

    “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.”[28] (emphasis added)

    [28] Reasons, [77].

11. I think it is clear from this extract from the Reasons that the sudden jolt as described by Mr Cruceanu was not in doubt. The problem for Mr Cruceanu however is that in terms of that sudden jolt, he himself does not describe any immediate pain or symptoms in his lumbar or cervical spine, these he says occurred later. Mr Cruceanu complains that the Arbitrator “did not make a factual finding that the applicant did not experience a sudden jolt during the fall”. To the contrary I think it is clear that the Arbitrator accepted that Mr Cruceanu did experience a sudden jolt as he described in his statement. The question however which was in dispute and which was decided by the Arbitrator was whether or not this incident caused the damage to his cervical spine.[29] I think it is evident from the Arbitrator’s reasons that the incident (the sudden jolt) was accepted to have occurred but his task was to survey whether all of the evidence, both that of Mr Cruceanu and the medical evidence, made out the allegation that the lumbar and cervical symptoms were either caused by the injury or were a disease which had been aggravated, accelerated or deteriorated by the incident.

    [29] Reasons, [77].

12. Whilst the Arbitrator did not make a positive finding that the appellant suffered a sudden jolt in the incident, I think it is clear from a fair reading of the reasons that this was in fact accepted by the Arbitrator. There is certainly no finding adverse to Mr Cruceanu on this issue. The factual error alleged by Mr Cruceanu simply did not occur. No error of the kind required for appellate intervention has been established.

13. No error has been made out and Ground One is thus dismissed.

As to Ground Two

1. Ground Two alleges that the Arbitrator failed to decide injury simpliciter. If this assertion is made out, this would be a constructive failure to engage with the statutory test with respect to injury found in s 4 of the 1998 Act and would thus be an error of law which I would then be called upon to correct.

2. The allegation advanced by Mr Cruceanu is that “the Arbitrator did not decide whether the worker suffered an injury to his cervical spine in the course of his employment with the respondent.”[30]

   [30] Appellant’s written submissions, [11].

3. The issue regarding injury has been the subject of numerous judicial pronouncements. The High Court in Military Rehabilitation and Compensation Commission v May[31] has reviewed these authorities and has concluded thus:

   “74.   That brings us to the central question in the present appeal: what exactly is the ordinary sense in which injury is used in the context of the Act? Plainly, injury ‘is not used in a global sense to describe the general condition of the employee following an incident’.

   75.    More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to ‘getting hurt’ (an injury might be constituted by nothing more than ‘something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel’) but that suffering an injury involves something more than merely ‘becoming sick’. An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’. The universality of that explanation has been questioned, and the comment has fairly been made that ‘a distinct physiological change is not itself an expression of clear and definite meaning’. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.

   …

   78.    The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.” (footnotes omitted)

   [31] [2016] HCA 19; 257 CLR 468 (May).

4. The task which fell to the Arbitrator was to undertake the analysis I have described above.

5. Tellingly in May, and relevant to the activity undertaken by the Arbitrator in this case, Gageler J said as follows:

   “The Full Court was right to point out in the decision under appeal that the Act and the case law do not ‘preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion’ and to observe that ‘[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal's satisfaction on the evidence in each particular case’. But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.”[32] (footnotes omitted, emphasis added)

   [32] May, [80].

6. The Arbitrator in fact posed the correct question in terms of finding whether Mr Cruceanu suffered personal injury simpliciter.[33] Having posed the correct question, the Arbitrator then conducted a close examination of Mr Cruceanu’s evidence, both his statement of 17 April 2017 and the medical evidence, in order to determine whether or not Mr Cruceanu had discharged his burden of proof. The Arbitrator did so mindful of the following matters:

   (a)    the caution to be applied regarding the use to which medical records are put and the histories which might be recorded therein,[34] and

   (b)    the fact that a medical opinion might be expressed as a possibility does not preclude a finding on the balance of probabilities that an applicant suffered injury.[35]

   [33] Reasons, [57].

   [34] Reasons, [67].

   [35] Christensen [369]–[383] per McColl JA, Reasons [75].

7. Relevantly, McColl JA in Christensen found as follows:

   “However, I accept that in EMI (Aust) Ltd v Bes, Herron CJ was of the view that ‘if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable’. This case proceeded as I understand it on the basis that the fact medical science said the connection between psychological stress and an increased susceptibility to viral illness was ‘unproven’, meant it was ‘possible’. This opened the door to the temporal inquiry. Nevertheless, that inquiry could not be undertaken in isolation from the medical evidence.”[36]

   [36] Christensen, [383].

8. In this case, as found by the Arbitrator, Dr Farey expressed his opinion as a possibility. Dr Farey relevantly said 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 changes 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.”[37] (emphasis added)

   [37] Report of Dr Ian Farey, 2 August 2018, ARD, p 131.

9. The opinion of Dr Farey is critical to Mr Cruceanu’s case and was acknowledged as such by his counsel. Dr Farey’s opinion was subject to close consideration by the Arbitrator but as the quote from Christensen above makes clear, the fact that Dr Farey finds that it was possible, permits the finder of fact, as is stated in both May and Christensen above, to proceed to assess the evidence to establish whether or not the case has been made out.

10. This is the task that the Arbitrator undertook. In so doing, the Arbitrator found that he was not satisfied on the balance of probabilities regarding Mr Cruceanu’s cervical symptoms,[38] and further that to connect the paraesthesia in his upper thigh which was first noted many months after the incident with an injury to the neck as involving considerable speculation.[39]

    [38] Reasons, [74].

    [39] Reasons, [78].

11. Critically, the Arbitrator found that the factual assumptions upon which Dr Farey’s opinion was founded had not been proven. Even though this Commission is not bound by the rules of evidence, there needs to be a basis in fact to render the opinion of the expert to be of use or value to the decision maker. In Hancock v East Coast Timber Products Pty Limited,[40] Beazley JA said that the Commission was required to be satisfied that the expert evidence provided a satisfactory basis upon which findings could be made.

    [40] [2011] NSWCA 11; 80 NSWLR 43 (Hancock).

12. The Arbitrator after a consideration of all of the medical evidence and the statement of Mr Cruceanu was unable to find, as a matter of fact, that the factual assumptions upon which Dr Farey’s opinion was based had been proven.

13. It is clear that whilst the Arbitrator accepted the fact of the occurrence of the incident on 10 April 2012, including the sudden jolt to Mr Cruceanu’s body, his task was as he set for himself at Reasons [57]. Notwithstanding the acceptance of the occurrence of the event itself, the Arbitrator found that Mr Cruceanu was unable to establish to the requisite standard the relationship between that event and his neck injury. The difficulty with this appeal ground is that it is based upon an erroneous allegation that the Arbitrator did not make a finding one way or the other regarding injury simpliciter. As the Arbitrator found:

    “I have concluded that factual assumptions upon which Dr Farey has founded his opinion have not been proven. As Mr [Mrsic] recognised, there is no compelling evidence which would establish injury to the neck other than Dr Farey.”[41]

    [41] Reasons, [79].

14. And further:

    “A finding that the applicant has not proven an injury to his cervical spine precludes a referral of the matter to an Approved Medical Specialist …”[42]

    [42] Reasons, [81].

15. Relevant findings regarding injury were in fact made by the Arbitrator, unfortunately for Mr Cruceanu they were adverse to his claim.

16. The approach taken by the Arbitrator with respect to injury was detailed and in accordance with principle. The Arbitrator was well aware of the various appellate authorities which directed how this matter was to be approached and he complied with them in a reasoned and careful way. The alleged failure in this appeal ground has not been made out and Ground Two is thus dismissed.

As to Ground Three

1. Ground Three is not well expressed. As I have set out above, the statutory permit for appeals under s 352(5) of the 1998 Act requires the identification of any error of fact, law or discretion. 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.

2. There are a number of problems with Mr Cruceanu’s approach in this regard. Firstly, as a part of his case, a great deal of medical evidence was relied upon.[43] In terms of the Arbitrator’s approach to the case before him, a consideration of the entirety of Mr Cruceanu’s case including a review of the medical evidence that he relied upon was both proper and appropriate. The Arbitrator did so mindful of the caution with which he must approach medical records and well aware of Dr Farey’s view that Mr Cruceanu had pre-existing cervical spondylosis and that it was “entirely possible” that the tripping injury caused further problems in his cervical spine.[44]

   [43] ARD, pp 37–132.

   [44] Reasons, [53].

1. It is important to note that Dr Farey considered that it was entirely possible that the tripping injury has caused the further problems in Mr Cruceanu’s cervical spine. That is, problems further than the cervical spondylosis.[45] It was not posited by Dr Farey, as is now asserted in Ground Three, that there was a proven injury to the spinal cord. As I have traversed the authorities in Ground Two, once Dr Farey indicated that this injury was “a possibility” it was then open to the tribunal of fact to make such a finding should Mr Cruceanu discharge his burden of proof. The Arbitrator dealt with this issue specifically[46] and found that Mr Cruceanu had not established injury on the balance of probabilities. Once the Arbitrator found that Dr Farey’s opinion was not satisfactory (in the Hancock sense) there existed no expert support for Mr Cruceanu’s complaint. This type of issue was dealt with by Herron CJ in EMI (Australia) Ltd v Bes[47] where his Honour said as follows:

   “[I]t is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning.”

   [45] ARD, p 131.

   [46] Reasons, [76]–[78].

   [47] [1970] 2 NSWR 238.

2. As I have described above, Dr Farey was of the view that it was possible that the tripping injury caused problems to Mr Cruceanu’s cervical spine. The Arbitrator then proceeded, consistent with the remarks of Herron CJ, to examine the rest of the evidence to decide whether or not it was probable. The two “legs” of Mr Cruceanu’s case, Dr Farey and Mr Cruceanu’s evidence himself, were both found wanting by the Arbitrator.

3. 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.

4. 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.

5. 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.

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

7. Counsel for Mr Cruceanu complains that: “The worker is left wondering whether the Arbitrator truly understood his case.”[48] Unfortunately for Mr Cruceanu, the Arbitrator understood his case all too well. Ground Three is not made out as no error has been established.

   [48] Appellant’s written submissions, [19].

As to Ground Four

1. Mr Cruceanu alleges that at Reasons [79], the Arbitrator took into account an irrelevant consideration, namely that Dr New did not express a clear view on causation. The Arbitrator at Reasons [79] found as follows:

   “I have concluded that factual assumptions upon which Dr Farey has founded his opinion have not been proven. As Mr [Mrsic] 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.”

2. Mr Cruceanu submits that this inference, namely Dr New’s failure to express a view on causation “was gratuitous but also concerning”[49] and it is submitted that this inference appears to have wrongly influenced the Arbitrator’s mind on the issue of causation.

   [49] Appellant’s written submissions, [20].

3. Dr New’s report can be found at ARD, page 78. It is true that a consideration of Dr New’s report of 21 August 2014 reveals that the conclusion reached regarding his opinion is correct. Namely, Dr New does not assert a causal nexus between the accident and his cervical pathology. Indeed, the report states thus:

   “You have asked my opinion whether this gentleman's employment at ERG Transit Systems Limited had been a substantial contributing factor to his injuries, or had aggravated these injuries.”[50]

   [50] ARD, p 82, [3].

4. Dr New then proceeds to provide his opinion with respect to Mr Cruceanu’s knee, back and cervical spine. In this section of his report, Dr New finds that there is no doubt that there is a causative link between the accident and Mr Cruceanu’s knee pathology. He does not posit an opinion either way with respect to Mr Cruceanu’s cervical spine, notwithstanding being asked this question quite directly by Mr Cruceanu’s then solicitors. It is to be noted that the causation question[51] appears beneath the heading “Specific Questions”[52] in which the doctor deals with the five specific questions posed for him by the solicitors.

   [51] ARD, p 82, [3].

   [52] ARD, p 81.

5. It appears to me that the two offending words in this section of the Arbitrator’s reasoning is the phrase “possibly wittingly”. 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.

6. 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 and in particular paragraph [3] at ARD page 82. 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.

7. The Arbitrator in the first sentence of Reasons [79] found that the factual assumptions underpinning Dr Farey’s report were not made out. He then goes on to state, quite correctly, that Dr New did not positively assert a causal nexus between the accident and the cervical pathology. This, absent the offending phrase, is a correct and fair reading of Dr New’s opinion. The speculation about Dr New’s reason for so doing does not serve to impugn the purport of Dr New’s opinion. That reading is in my view the only available assessment of that opinion. There is thus no error of the Whiteley Muir type which would enliven the power to intervene on appeal.

8. Ground Four is not made out and is dismissed.

As to Ground Five

1. Under Ground Five, Mr Cruceanu extracts a section from Reasons [79] which is as follows:

   “As Mr Mrsic recognised, there is no compelling evidence which would establish injury to the neck other than Dr Farey.”

2. Mr Cruceanu states that this is not an accurate characterisation of the submission made by his counsel as Mr Cruceanu’s statement of 7 April 2017 had also been relied upon by counsel in terms of establishing causation.

3. I do not consider that the criticism of this line at Reasons [79] reflects a proper reading of the reasons overall. Reasons must be read as a whole.[53]

   [53] Beale v Government Insurance Office (1997) 48 NSWLR430 at 444

4. Commencing at Reasons [55], having reviewed the evidence, the Arbitrator then embarked upon a discussion of that evidence which included an assessment of both the medical evidence and the evidence of Mr Cruceanu. Regarding Mr Cruceanu’s evidence the Arbitrator said as follows:

   “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.”[54] (emphasis added)

   [54] Reasons, [70].

5. And at Reasons [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. During this period, the applicant had multiple consultations with his general practitioner about a variety of problems including his knee, his wrist and his low back… There is no reference to the onset or progression of neck pain in the histories taken by these doctors.”

6. And finally at Reasons [72]:

   “As the facts in Fitzgibbon demonstrate, doctors are fallible and mistakes are made in recording medical histories. An error in history taking may be replicated by the authors of subsequent medical reports. That, however, is unlikely to be the case here. Multiple medical examinations by doctors in different specialties have failed to elicit a history that the applicant suffered from neck and shoulder pain in the year or more after the incident.”

7. By the time the Arbitrator reaches his conclusions at Reasons [79] which are criticised in this appeal ground, he has already discounted the evidence in the applicant’s statement. At Reasons [74] the relevant finding is as follows:

   “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.”

8. Having not accepted the applicant’s view as expressed in his statement, the important piece of evidence to be considered was that of Dr Farey who was the doctor who posited a possible causative link between the injury and the cervical symptoms.

9. For the reasons expressed above, Dr Farey’s opinion was not accepted by the Arbitrator. Having reached this view about Dr Farey’s opinion, having already discounted Mr Cruceanu’s evidence, the offending statement in paragraph [79] can be properly viewed in that context. By the time the Arbitrator had reached Reasons [79], there was no other compelling evidence.

10. 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.

11. Ground Five is not made out and is thus dismissed.

DECISION

1. As I have described above, the approach to appeals in the Commission requires the establishment of error in the Raulston sense. That is, the Arbitrator must be wrong. The appeal pursued by Mr Cruceanu has been unable to identify and establish error on the part of the Arbitrator. As no error is established, the Arbitrator’s decision therefore remains.

2. The Certificate of Determination dated 5 July 2019 is confirmed.

Judge Phillips

PRESIDENT

11 February 2020