CSR Building Products Limited v Delaney
[2024] NSWPICPD 44
•9 August 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | CSR Building Products Limited v Delaney [2024] NSWPICPD 44 |
APPELLANT: | CSR Building Products Limited |
RESPONDENT: | Steven Charles Delaney |
INSURER: | CSR Limited |
FILE NUMBER: | A1-W3425/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 9 August 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 31 July 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – whether the Member failed to address the appellant’s submissions – adequacy of reasons – Roncevich v Repatriation Commission [2005] HCA 40 applied – whether the medical opinion expressed was produced in a “fair climate” Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied – certification by legal practitioner that there are reasonable prospects of success |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Grimes, counsel | |
| Hall & Wilcox | |
| Respondent: | |
| Mr G Young, counsel | |
| Brazel Moore Lawyers | |
DECISION UNDER APPEAL: | Delaney v CSR Building Products Ltd [2023] NSWPIC 378 |
MEMBER: | Ms K Garner |
DATE OF MEMBER’S DECISION: | 31 July 2023 |
INTRODUCTION AND BACKGROUND
Mr Steven Charles Delaney (the respondent) was employed by CSR Building Products Limited (the appellant) as a forklift operator and subsequently as a team leader. He suffered an injury to his lower back in the course of his employment on 14 April 2010, following which he underwent surgery in the form of an anterior spinal fusion at the L5/S1 level of his spine performed by Dr Marc Coughlan, neurosurgeon. Liability for that injury was accepted and the respondent ultimately returned to his pre-injury duties.
The respondent alleged a further injury to his lower back on 8 November 2021, liability for which was initially accepted by the appellant. The injury was said to have occurred when the respondent was driving a forklift over a pothole. The respondent had time off work and gradually returned to work with physical restrictions in place.
On 2 March 2022, the respondent attended his general practitioner, Dr Gillian Moreland, complaining of an onset of severe sciatica. Dr Moreland arranged for an MRI scan of the respondent’s lumbar spine, which disclosed a disc prolapse at the L1/2 level of the lumbar spine, which was not evident in an earlier MRI scan taken following the November 2021 injury. He ceased work, returned to see Dr Coughlan and Dr Coughlan performed a microdiscectomy at that level.
The respondent lodged a workers compensation claim, alleging that the onset of the severe sciatica was referable to the injury on 8 November 2021.
On 3 May 2022, the appellant declined liability for the respondent’s injury, disputing that the respondent’s continuing incapacity for work and need for treatment resulted from the injury on 8 November 2021.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) and the issue was determined by a Member of the Commission in favour of the respondent.
The appellant appeals the decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined on the basis of the documents and their written submissions.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those 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
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 Workplace Injury Management and Workers Compensation Act 1998 have been met.
THE EVIDENCE
The respondent’s statement
The respondent provided a statement dated 4 November 2022.[1] He said that he had worked for the appellant for approximately 16 years commencing in 2006 as an operator and then as a team leader.
[1] Application to Resolve a Dispute (ARD), pp 1–3.
The respondent advised that he underwent surgery in the form of an L5/S1 disc replacement performed by Dr Marc Coughlan in November 2010 and received subsequent rehabilitation and physiotherapy. He said he was paid weekly compensation. He described the surgery as successful and said that he returned to normal duties with the appellant as a plant operator.
The respondent stated that in June 2022 [which appears to actually have been in 2020], he was involved in a motor vehicle accident when he was a passenger in the vehicle, and suffered injuries to the neck, shoulders, upper and lower back and his legs.
The respondent indicated that on 8 November 2021, he was driving a forklift in the yard at work when he hit a pothole. He said that he experienced immediate pain in his back, went to the office and reported the incident in the presence of the safety manager. He said he laid on a table for about an hour, and then he was driven home by the team leader.
The respondent advised that he took the following day off as sick leave and on 10 November he consulted Dr Gillian Moreland, general practitioner, who certified him as unfit for work for a period.
The respondent stated that he underwent a microdiscectomy at the hands of Dr Coughlan on 14 June 2022. He was unfit for work for a period of 4 weeks following the surgery and then returned to work with restrictions, firstly 4 hours per day 3 days per week on alternate days, gradually increasing his hours until 6 October 2022, when Dr Moreland certified him as fit for his pre-injury duties.
The respondent described the surgery as successful and said he had not experienced any further symptoms or other injuries. He asserted that he had never injured his back at the L1/2 level prior to the work injury.
The medical evidence from the treatment providers
The clinical records of Dr Gillian Moreland, general practitioner
Dr Moreland’s consultation notes for the period 1 December 2021 to 13 July 2022 were in evidence.[2] The entries from 1 December 2021 to 16 February 2022 recorded back pain with sciatica but improvement after physiotherapy, and “inconsistent pain behaviours at work”. On 2 March 2022, Dr Moreland recorded a history of aggravated lower back pain with thigh pain on waking one morning, commencing about two or three weeks previously. On examination, Dr Moreland noted the respondent was experiencing obvious discomfort, his gait was antalgic, and he was unable to stand or sit for any period of time, with restrictions on straight leg raising and an inability to flex. Dr Moreland noted that the respondent’s sciatica was progressing. She arranged for MRI scans of the lumbar spine and the right hip and referred the respondent to Dr Marc Coughlan.
[2] ARD, pp 152–164.
On 10 March 2022, Dr Moreland noted the results of the MRI scan disclosed a large right L1/2 paracentral disc extrusion. On 14 April 2022, Dr Moreland recorded that surgery was arranged for 5 May 2022.
On 21 June 2022, Dr Moreland recorded that Dr Coughlan had performed an L1/2 microdissection and that the respondent’s symptoms had dramatically improved. On 13 July 2022, Dr Moreland certified the respondent as ready to trial a return to work, 4 hours per day, 3 days per week on alternate days.
In the referral to Dr Coughlan dated 2 March 2022, Dr Moreland advised that:
“[The respondent was experiencing] sciatica following an injury on 10 November [2021] whilst driving a forklift.
He seem [sic] to be going along well until todays consult where current pain is 8/10.
It appears he had a flare up about 2–3 weeks ago and has been unable to work. The symptoms seem inconsistent with the MRI …”.[3]
[3] ARD, p 132.
In a report dated 8 December 2021 directed to “To whom it may concern,” (but which appears to be responding to questions posed by the appellant) Dr Moreland advised that the respondent consulted her complaining of lower back pain on 1 December 2021 following a work-related injury when he drove over a pothole. She referred to a prior motor vehicle accident involving the same area of the back and said that the respondent had a “known baseline of pain due to previous MVA injury in same area with a subjective pain score of 2/10.” She observed that the respondent had an antalgic gait, was tender at the L5/S1 area of the lower back, had limited bilateral leg raising, with a positive “slump test”. She said that this indicated a possible sciatic nerve impingement. She added that the pain score on first presentation was 5/10, which subsequently improved to 3/10. She listed his physical limitations and said that the respondent was performing a graded return to work with the assistance of physiotherapy. Dr Moreland reported that the respondent had experienced pain regularly before the injury, however, the injury exacerbated the pre-existing condition.[4]
[4] ARD, pp 181–182.
Records of Dr Marc Coughlan, neurosurgeon
On 17 March 2022, Dr Coughlan wrote to Dr Vidyasagar Casikar, neurosurgeon, advising that the respondent was in extreme pain. He provided a background of the respondent having suffered an injury in November 2021 while working on an excavator. Dr Coughlan described the respondent’s pain level following the injury as “not too severe” but that when the respondent was driving an excavator “a few days ago” he experienced severe right-sided back pain with referred pain in his thigh and groin. He described the respondent’s symptoms and said that the MRI scan performed in November 2021 disclosed a small L1/2 disc bulge but that a recent MRI scan confirmed a very large sequestrated segment at the L1/2 level, which was compressing on the thecal sac and nerve root and causing severe pain. Dr Coughlan recommended consideration to be given to the respondent undergoing a microdiscectomy.[5]
[5] ARD, p 69.
Dr Coughlan wrote to the appellant on 8 April 2022. He confirmed that, at the consultation on 17 March 2022, the respondent reported severe right sided back pain, with referred pain in his thigh and groin. He gave the history of the respondent having suffered an injury in November 2021 while working on an excavator, which settled to mild pain but became very severe when he was again working on an excavator on 10 March 2022. Dr Coughlan described the respondent’s symptoms as excruciating and said that it was an exacerbation of the injury in November 2021. He considered that the symptoms “closely correlated with the mechanism of injury and the imaging.” He added that the imaging following the motor vehicle accident in 2020 did not reflect the respondent’s current pathology and symptoms. Dr Coughlan was of the view that the respondent would not have suffered the current symptoms if he had not been on the excavator. He said that he was hopeful that the proposed microdiscectomy would greatly relieve the respondent’s symptoms and improve his functionality. He advised as to the respondent’s future treatment regime after the surgery and the expected duration of that recovery period.[6]
[6] ARD, pp 70–71.
Dr Coughlan again wrote to the appellant in a letter dated 13 May 2022 in response to the appellant’s query in relation to the history he provided in his previous report.[7] He said:
“Apologies for any miscommunication. I checked [the respondent’s] file and he reported he was driving a forklift, not excavator, when his injury occurred in November. Regardless of the machinery he was driving, the important fact is he was operating a vehicle during the course of his work duties when he drove in to a pothole causing a sudden onset of back pain. The pain settled after a few days with conservative treatment but then flared up in March this year before he came to see me.”
[7] ARD, p 72.
Dr Coughlan was of the view that the respondent’s employment was the main contributing factor to his current symptoms and pathology because of the severity of the pain resulting from the injury in November 2021, and the fact that it would take little provocation for the symptoms to flare again. He said that he believed the incident in March was directly related to the November injury.
Dr Coughlan provided a further report on 12 August 2022, in which he confirmed the history of injury and the pathology disclosed on the MRI scan. He advised that the surgery was performed on 14 June 2022, which resulted in marked improvement in the respondent’s symptoms. He observed that, taking into account the mechanism of injury, the subsequent symptoms and the radiological findings, it was unlikely that the respondent would have required the surgery had he not been injured, and the respondent’s recovery progress was testimony to the fact that the surgery was appropriate and reasonably necessary.[8]
[8] ARD, p 74.
Ms Olivia Trinka, physiotherapist
Ms Olivia Trinka, physiotherapist from Optimum Health and Performance, lodged two “Allied health recovery requests”.[9] The first request, dated 21 December 2021, referred to the date of injury as 8 November 2021, noted a previous L5/S1 fusion and low back injury in 2020, and diagnosed “L4/5 somatic referred pain with nerve irritation.”[10] The current symptoms and signs were listed as:
“Constant pain bilateral low back. Intermittent pain posterior right thigh to ankle. Tingling resolved. Lumbar ROM: flex pain bilat, ext pain bilat, LLF reduced ROM + pain, L rot slight pain, R rot light pain Neuro intact.”[11]
[9] Reply to Application to Resolve a Dispute (reply), pp 80–84 and pp 85–89.
[10] Reply, p 80.
[11] Reply, p 80.
The “recovery plan” included monitoring and upgrade of the respondent’s home exercise program as his symptoms permitted, education on self-management, and self-pacing strategies to manage “flare-ups” of pain.
The second request, dated 25 January 2022, confirmed the earlier diagnosis and recorded the current symptoms as “intermittent pain bilateral low back R [greater than] L.”[12] The respondent was considered fit for pre-injury hours, sitting as tolerated, no forklift driving, with pushing limited to 7 kilograms, pulling and lifting limited to 10 kilograms and driving limited to 30 minutes. The recovery plan again provided for self-management strategies in order to manage “flare-ups”.
[12] Reply, p 85.
The rationale for requesting approval for the service was that:
“[The respondent] experienced a significant flare-up over the past few weeks which has limited his progression. He has begun to notice improvement in his symptoms again with reduced pain and improved mobility and function. We are continuing to focus on reducing pain and improving strength and functional capacity … if no flare-ups occur.”[13]
[13] Reply, p 88.
Both requests were approved by the appellant.
The radiological reports
Dr Adam Steinberg performed an MRI scan and reported on the results on 15 December 2021. He noted the history of sciatica following a recent work injury. He reported that the findings disclosed a consolidated fusion at the L5/S1 level, minor disc bulges at the L2/3 and L4/5 levels and no “significant” abnormality at the L1/2 level.[14]
[14] ARD, p 67.
Dr Tushar Singh reported on an MRI scan undertaken on 9 March 2022. He noted the history of sciatica radiating down to the right anterior thigh. He recorded that there was “a large L1/2 right paracentral disc extrusion which compresses the right L1 nerve root and probably also other lumbar nerve roots towards the central canal” and “Mild right hip joint OA.” The results for the rest of the lumbar spine were largely consistent with the earlier MRI scan taken on 15 December 2021.[15]
[15] ARD, p 68.
Certificates of Capacity
Certificates of Capacity issued by Dr Moreland certifying the respondent’s fitness for work between 10 November 2021 and 1 March 2022 recorded that the respondent was fit for work performing normal hours but with limitations of lifting, standing, twisting, sitting, pushing and pulling, as well as no driving of the forklift or other plant vehicle.[16]
The medico-legal opinions
[16] ARD, pp 112–120.
Dr Christopher Harrington, orthopaedic surgeon
Dr Christopher Harrington was qualified by the respondent’s legal representatives. He provided a report dated 23 January 2023.[17] He noted that the respondent had suffered a previous injury in 2010 and underwent surgery in the form of a fusion at the L5/S1 level of the spine, following which the respondent made an excellent recovery. He took the further history of the injury when the respondent was driving a forklift on 8 November 2021. Dr Harrington noted that the respondent asserted that his symptoms never settled. Dr Harrington recorded the history that there was a further event at work some weeks later when the respondent was sitting at his desk and experienced recurrent back pain, radiating into his right groin and down his leg, he was unable to finish work and was driven home. Dr Harrington added that there was another event when the respondent was on holidays and woke with excruciating pain and could not get out of bed.
[17] ARD, pp 79–86.
Dr Harrington recorded that the respondent underwent an MRI scan on 9 March 2022, which disclosed a large disc prolapse at L1/2 following which the respondent was referred to Dr Coughlan, who recommended surgery. Dr Harrington noted that the respondent was assessed by Dr Casikar at the request of the appellant, who agreed that surgery in the form of a microdiscectomy should be undertaken immediately. Dr Harrington further noted that the surgery was performed on 14 June 2022 with a successful result.
Dr Harrington recorded the respondent’s current status and his present treatment and performed a physical examination. He reviewed the radiological investigations and commented that the MRI dated 15 December 2021 showed degenerative changes at the L1/2 level but that the sagittal cuts were not high enough in order to enable a proper look at the image. Dr Harrington described the prolapse at L1/2 level disclosed in the scan dated 9 March 2022 as “impressive,” and noted the presence of nerve root compression at that level, which he said was consistent with the respondent’s description of his pain in the right groin. Dr Harrington said that the respondent advised that the pain had always been in the same location since the injury on 8 November 2021 but not as intense as the pain following the recurrence in early 2022. Dr Harrington provided a diagnosis of a successful microdiscectomy at the L1/2 level of the lumbar spine, with some reduced strength and stamina but excellent range of movement. He observed that:
“The supposition is that he damaged the L1/2 disc and later suffered a prolapse of that level, which is consistent with the history and MRI findings. I don’t think we can dispute that the incident driving the forklift is the main and substantial contributing factor to the prolapse at L1/2 which led to the microdiscectomy. In my opinion, the operation would’ve been work related.”[18]
[18] Report p 5, ARD, p 84.
Dr Vidyasagar Casikar, neurosurgeon
The appellant arranged for Dr Casikar to examine the respondent and provide an opinion on liability. Dr Casikar provided a report dated 25 March 2022.[19] He advised that he had previously provided a report dated 30 May 2013 and said that the current report should be read together with the previous report.
[19] Reply, pp 54–58.
Dr Casikar noted that since the previous report, about five years ago the respondent had returned to his duties as a forklift operator. Dr Casikar took a history of the circumstances of the injury in November 2021 and the treatment provided. He recorded that a “few weeks later”, the respondent was sitting at his desk and felt sudden severe pain in the back and into the right groin, which Dr Casikar described as a severe new neurological complaint that prompted Dr Moreland to arrange a further MRI scan. Dr Casikar noted that the scan suggested a large disc prolapse at the L1/2 level of the lumbar spine. He further noted that the respondent was referred to Dr Coughlan for review.
Dr Casikar performed a physical examination of the respondent and diagnosed the respondent as having developed a new injury which required immediate attention in the form of an L1/2 microdiscectomy. He added that the injury was not an aggravation of a previous injury, such a disc prolapse would take some time to develop, and did not generally occur spontaneously. He said it was likely that the respondent damaged his annulus fibrosis in the injury in November 2021 which set in train the prolapse. Dr Casikar opined that the new neurological complaints that were verified on examination related to the injury that occurred in November 2021, the respondent’s employment was a substantial contributing factor to the injury, and thus was a compensable workplace injury. He added, however, that the respondent had pre-existing degenerative back disease and a weakness in the annulus fibrosis could often be associated with that pre-existing condition, which could be possible in the respondent’s case in the context of the time delay in the onset of the prolapse.
Dr Casikar observed that the respondent:
“has some evidence of degenerative disease of the lumbar spine, as I had indicated. The degenerative disease is often associated with weakness in the annulus fibrosis and the more recent workplace injury probably occurred through a pre-existing defect in the annulus fibrosis.”[20]
[20] Dr Casikar’s report dated 25 March 2022, p 4, [4], reply, p 57.
Dr Casikar was of the view that the respondent’s neurological symptoms and pain would improve significantly after surgery, there would be a reasonable prospect of the respondent returning to normal hours of work on modified duties and the prospect of the respondent returning to forklift driving duties would depend on his progress following surgery.
Dr Casikar provided a supplementary report dated 12 April 2022 in response to a request by the appellant to clarify his opinion that a delay of a few weeks in respect of the onset of the prolapse was acceptable.[21] The appellant pointed out to Dr Casikar that the delay between the November injury and the disc prolapse was, on its calculation, approximately 15 weeks, and queried whether, if the delay was only “a couple of weeks” that would indicate a traumatic event occurred a couple of weeks before the MRI scan.
[21] Reply, pp 61–62.
Dr Casikar responded that a delay of 15 weeks from the date of the injury would make it difficult to accept that the prolapse related to the November 2021 injury. He advised that there was no evidence before him that indicated that the delay was 15 weeks and concluded that if there was a definite delay of 15 weeks, the disc prolapse did not relate to the work injury.
Dr Casikar produced a further supplementary report dated 26 April 2022 in order to address additional questions raised by the appellant.[22] On the basis of documentation provided to him, he expressed the view that, in the context of the respondent having returned to work on 15 December 2021, following the injury in November 2021, the disc prolapse identified in the MRI scan conducted on 9 March 2022 was new pathology and therefore was not related to the old injury. He added that it was very likely to be a new injury, but if there was no new injury it was possible that the prolapse was a spontaneous event.
[22] Reply, pp 59–60.
The Activities of Daily Living (ADL) Assessment Report
The appellant relied upon an Activities of Daily Living (ADL) Assessment Report dated 26 April 2022 prepared by Ms Jo-Anne Foster, occupational therapist.[23] Ms Foster took a history of the respondent sustaining a low back injury on 8 November 2021 when driving a forklift over a pothole at work. Ms Foster recorded that the respondent remained at work, performing suitable duties, until one morning in February 2022 when he woke up with severe low back pain, and he ceased work. She said that the respondent remained off work as he was awaiting surgery at the hands of Dr Coughlan. She noted the 2010 injury and the L5/S1 spinal fusion performed by Dr Coughlan as a consequence of that injury. She performed an assessment of the respondent’s physical abilities and made recommendations as to potential employment.
[23] Application to Admit Late Documents dated 10 July 2023.
THE MEMBER’S REASONS
The Member identified that the issues for determination were whether:
(a) the respondent suffered an injury to the L1/2 level of the spine on 8 November 2021;
(b) the respondent sustained an aggravation, acceleration, exacerbation or deterioration of disease to the L1/2 level of spine on 8 November 2021, arising out of or in the course of employment and whether his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of disease, pursuant to s 4 (b)(ii) of the Workers Compensation Act 1987 (the 1987 Act);
(c) the respondent had no capacity or was partially fit for work and the quantification of the respondent’s entitlement to weekly payments, and
(d) the medical or related treatment was reasonably necessary as a result of the injury.
The Member summarised the evidence and provided a detailed summary of the submissions made at arbitration.
The Member quoted the definition of ‘injury’ in s 4 of the 1987 Act and reproduced s 9A of the 1987 Act, which requires that the employment must be a substantial contributing factor to the injury. She reviewed various authorities dealing with the requirement in s 4(b)(ii) of the 1987 Act to establish that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease,[24] what is required to establish a compensable injury or consequential condition,[25] and authorities as to the acceptance of medical opinions.[26]
[24] AV v AW [2020] NSWWCCPD 9; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34.
[25] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40 (Andersen); Department of Education & Training v Ireland [2008] NSWWCCPD 134.
[26] Devenish v Kizlock Pty Ltd [2022] NSWPICPD 22.
The Member noted that there was no dispute that the respondent suffered a work-related injury to the L5/S1 level of his spine when he drove over a pothole on 8 November 2021, and that the respondent’s employment was a substantial and the main contributing factor to the injury. She further noted that she was required to determine whether the respondent also suffered an injury at the L1/2 level of the spine or an aggravation acceleration, exacerbation or deterioration of disease at the L1/2 level of the spine. She observed that the respondent did not identify which sections of the 1987 Act applied and the dispute notices issued by the appellant did not assist her. She did note that the respondent’s counsel indicated that s 4(b)(ii) of the 1987 Act was the most applicable section.
The Member also remarked that there were various deficiencies, inconsistencies and errors in the lay and medical evidence. She pointed out that the respondent stated that he was involved in a motor vehicle accident in June 2022, but other evidence indicated that it occurred on or about 8 June 2020, which was before the injury on 8 November 2021. The Member accepted that the respondent’s statement was silent as to whether he experienced pain on an ongoing basis following the 2021 injury and did not refer at all to the event occurring when he was working at his desk or waking with pain when he was on holidays.
The Member said, however, that there was medical evidence from the treatment providers that assisted in identifying whether the respondent continued to suffer pain during the period between the injury on 8 November 2021 and the MRI scan undertaken in March 2022 that disclosed the pathology at the L1/2 level. The Member referred to Dr Moreland’s report dated 8 December 2021, in which Dr Moreland recorded that the respondent presented with low back pain following an injury at work when he drove over a pothole. She noted that the respondent was suffering from pain scored at 5/10, which improved to 3/10 after treatment, and that the respondent’s pain was aggravated by sitting. The Member observed that Dr Moreland conceded that the respondent experienced a “baseline” of pain after the motor vehicle accident but was of the view that the work injury exacerbated the pre-existing condition. The Member referred to entries on 10 December 2021 and 3 February 2022, in which Dr Moreland recorded continuing symptoms and restrictions, and the entries on 16 February 2022 which disclosed an escalation of the respondent’s pain levels, prompting the referral to Dr Coughlan on 2 March 2022 in respect of symptoms of sciatica.
The Member also noted the evidence of the respondent’s physiotherapist, Ms Trinka, who recorded on 1 February 2022 that the respondent experienced a history of a flare-up of his symptoms two weeks previously which improved to an intermittent dull ache, and on 9 March 2022 recorded a significant flare-up with no known cause, causing constant pain in the lower back bilaterally. The Member pointed to the report of Ms Foster dated 26 April 2022, which noted that the respondent had been performing suitable duties since the injury in November 2021 until February 2022, when the respondent woke up one morning and could barely move because of severe lower back symptoms, following which he ceased work. The Member commented that the Certificates of Capacity for the period between 10 November 2021 and 23 February 2022 all placed restrictions on the respondent’s work capacity.
The Member referred to the reports of Dr Coughlan dated 17 March 2022 and 8 April 2022. She noted the inconsistency in the history recorded by him that the respondent was driving an excavator, rather than forklift, and that the incident occurred a few days previously. She noted that Dr Coughlan did, however, record that the respondent suffered a sudden onset of back pain in November 2021, following which the respondent’s pain settled with treatment and was not severe, and that the respondent had been suffering from symptoms after the November 2021 injury which had “somewhat” resolved.
The Member further referred to Dr Coughlan’s report dated 12 August 2022, in which he recorded that the respondent’s pain settled in a few days but flared up in March 2022 and opined that the flare-up was directly related to the injury in November 2021. The Member remarked that Dr Coughlan “based his opinion on his understanding of the mechanism of injury, subsequent symptoms and [the findings on the MRI scan] being ‘all closely correlated.’”[27] The Member formed the view that Dr Coughlan’s report dated 12 August 2022 appeared to be based on a correct history.
[27] Delaney v CSR Building Products Ltd [2023] NSWPIC 378 (reasons), [98].
The Member accepted the appellant’s submission that the medical evidence and the respondent’s evidence disclosed some variation in the site and type of the respondent’s pain but said that she also observed that there was some significant similarity such as the MRI scans, which both reported symptoms of sciatica. The Member further observed that the medical evidence from the treating doctors disclosed that the respondent complained of pain in his legs as well as lower back pain as early as 10 December 2021 and thereafter complained of intermittent symptoms. The Member said:
“The medical evidence also seems to fairly consistently show that the severe pain that the [respondent] experienced at the time of the work incident on 8 November 2021, settled somewhat with conservative treatment, however there were subsequent flare-ups of the back and leg pain. By 2 March 2022, Dr Moreland’s referral to Dr Coughlan noted that the [respondent’s] symptoms seemed inconsistent with the MRI scan taken on 15 December 2021.”[28]
[28] Reasons, [99].
The Member noted that the respondent had submitted that the medical evidence established two other events of increased symptoms subsequent to the injury on 8 November 2021 referrable to the L1/2 level of the lumbar spine, the first of which was when the respondent woke in pain when he was on leave, and the second of experiencing pain while sitting at his desk. The Member considered that, while Dr Harrington had a history of both of those events, the respondent did not provide any direct evidence in relation to those events, and the medical evidence was unclear, in particular as to when they occurred. She concluded, however, that it was apparent on the basis of the treating medical evidence that the respondent did experience “flare-ups” of pain intermittently subsequent to the injury on 8 November 2021.
The Member referred to the appellant’s submission that the L1/2 disc protrusion found in the MRI scan dated 9 March 2022, which was not apparent on the earlier scan, supported the conclusion that the L1/2 disc protrusion was not caused by the incident on 8 November 2021. The Member observed that Dr Harrington provided a clear explanation for the inconsistency, which was that the sagittal cuts were not high enough to properly capture the L1/2 disc level. The Member remarked that Dr Casikar did not comment about whether the earlier MRI scan performed high enough sagittal cuts and she accepted Dr Harrington’s opinion on that point. She noted that in any event, both scans reported on the pathology at that level.
The Member summarised Dr Harrington’s opinion on causation. She noted that Dr Harrington expressed the view that the respondent “seems to have suffered a degenerative disc prolapse at L1/2 on 8 November 2021”[29] when he jarred his back, the symptoms never really settled and the pain was always in the same location, then opined that “[t]he supposition is that he damaged the L1/2 disc and later suffered a prolapse of that level, which is consistent with the history and MRI findings.”[30] The Member said that the two descriptions of the mechanism of injury put forward were somewhat inconsistent, but she considered that the second observation was intended to be a more detailed explanation of how the injury occurred. She said that, in any event, Dr Harrington maintained his view that the incident on 8 November 2021 was causally related to the prolapsed disc and need for the microdiscectomy, and Dr Harrington referred to some degeneration of the disc at that level, but he pointed out that the respondent was asymptomatic prior to the incident on 8 November 2021.
[29] Dr Harrington’s report p 4, ARD, p 82.
[30] Dr Harrington’s report p 6, ARD, p 84.
The Member observed that Dr Casikar initially diagnosed a prolapse at the L1/2 level of the lumbar spine, opined that the respondent’s employment was a substantial contributing factor to the injury, and considered that the respondent had probably damaged the annulus fibrosis in the incident on 8 November 2021. The Member noted that the history recorded by Dr Casikar was that the disc prolapse occurred a few weeks after the November 2021 incident, which was acceptable because it was consistent with the normal mechanism, and that Dr Casikar expressed the view that a disc prolapse very often does not occur immediately. The Member pointed out that the delay in onset was in fact 13 weeks between the November 2021 injury and the MRI scan dated 9 March 2022 that disclosed the pathology. The Member referred to Dr Casikar’s subsequent view that, if the delay was 15 weeks, the prolapse was not related to the 2021 injury and was either very likely a new injury or possibly a spontaneous event. The Member observed that Dr Casikar did not provide an explanation as to how the disc prolapse could occur spontaneously.
The Member said:
“The length of the delay between the work incident on 8 November 2021 and the finding of the L1/2 pathology on the MRI scan on 9 March 2022 and that the [respondent’s] pain symptoms settled such that he returned to work during that time seeks to be the compelling reason for Dr Casikar to change his opinion in relation to causation. Admittedly the delay in that regard seems to be closer to thirteen weeks rather than fifteen weeks as suggested by Dr Casikar, however in any event it is a significant time period. However, as I noted above it appears from the treating medical evidence, and I accept, that whilst the pain symptoms did settle somewhat during that period, he nevertheless did continue to have pain symptoms with ‘flare-ups’ on a sporadic basis. Certainly, although the [respondent] was certified as having some capacity to work during that period, he remained subject to numerous work restrictions. That appears to demonstrate continuing symptoms and restrictions, with the underlying pathology admittedly not apparent on the first MRI scan.”[31]
[31] Reasons, [110].
The Member observed that, in respect of Dr Casikar’s opinion, there was no evidence of any new injury having occurred and Dr Casikar did not provide an explanation as to how the disc prolapse could occur spontaneously. She noted that no other medical expert had suggested that a disc prolapse could spontaneously occur. The Member concluded that, on the basis of the evidence, a spontaneous disc prolapse was significantly less likely to explain the mechanism of injury. The Member added that, when considering the evidence as a whole, she preferred the opinion of Dr Harrington over that of Dr Casikar in respect of the cause of the L1/2 disc prolapse. She described Dr Harrington’s opinion as the “considered, logical and most likely explanation”[32] for the respondent’s symptoms and L1/2 pathology, because:
(a) Dr Casikar had not considered Dr Harrington’s explanation as to the difference between the two MRI scans;
(b) there was no evidence of any other injury, and
(c) the injury on 8 November 2021 was significantly more likely to have caused the prolapse than the prolapse occurring spontaneously;
[32] Reasons, [114].
The Member concluded that she was satisfied that the respondent injured his disc at the L1/2 level of the spine in the incident on 8 November 2021, which led to a degenerative disc prolapse at that level. She added that, as there was some disc degeneration at that level, the degeneration was a disease process, and the injury would fall within the meaning of s 4(b)(ii) of the 1987 Act.
The Member determined that she was satisfied on the balance of probabilities that the respondent suffered an injury to the L1/2 disc on 8 November 2021 that progressed to a degenerative disc prolapse, which was an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and the respondent’s employment was the main contributing factor to the aggravation in accordance with s 4(b)(ii) of the 1987 Act. The Member proceeded to determine the issues of whether the respondent’s treatment expenses were reasonably necessary as a result of the injury, whether the microdiscectomy surgery in June 2022 was reasonably necessary and whether the respondent was entitled to weekly payments of compensation. She determined those issues in favour of the respondent. Those determinations are not the subject of the appeal so it is not necessary to summarise the Member’s reasons in respect of those issues.
The Certificate of Determination issued on 31 July 2023 records:
“The Commission determines:
1. The [respondent] sustained injury on 8 November 2021 to the L1/2 disc which progressed to a degenerative disc prolapse of that level in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
2. The past treatment referred to in the [respondent’s] schedule of expenses including the right L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021 within the meaning of s 60 of the 1987 Act.
3. The [respondent] had, as a result of injury on 8 November 2021:
(a)no current work capacity from 12 May 2022 to 17 July 2022;
(b)current work capacity and returned to work for less than 15 hours per week from 18 July 2022 to 1 August 2022;
(c)current work capacity and returned to work for not less than 15 hours per week from 2 August 2022 to 8 September 2022, and
(d)current work capacity and returned to work for not less than 15 hours per week from 9 September 2022 to 19 September 2022.
The Commission orders:
1. The [appellant] to pay the [respondent’s] medical treatment and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the 1987 Act.
2. The [appellant] to pay the [respondent] weekly compensation pursuant to s 37(1) of the 1987 Act as follows:
(a)in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022;
(b)in the amount of $128.96 per week from 18 July 2022 to 1 August 2022, and
(c)in the amount of $404.77 per week from 2 August 2022 to 19 September 2022.
3. Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.”
GROUNDS OF APPEAL
The appellant relies on the following grounds of appeal:
(a) Ground A: The Member committed an error of law in failing to provide adequate reasons for her findings;
(b) Ground B: The Member committed an error of law by failing to provide the appellant procedural fairness in that the Member failed to deal with the submissions made on its behalf, and
(c) Ground C: The Member committed an error of fact in determining that there was no evidence of any other injury.
LEGISLATION
Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides:
“78 Statement of reasons for decision
(1) This rule applies only in relation to the following applicable proceedings—
(a)Commission proceedings,
(b)merit review proceedings.
(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
Injury is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’ (cf former s 6 (1))
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
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
SUBMISSIONS
In his Notice of Opposition to Appeal Against Decision of a Member, the respondent provided his submissions in respect of Ground A of the appeal and proceeded to respond to the remaining grounds under one heading, contrary to the Commission’s Procedural Direction No WC 3 – Presidential appeals and questions of law. The respondent also included reference to a “Ground 4”, when there is no such ground in this appeal. While there is a degree of overlap between the grounds of appeal, the manner in which the submissions are addressed is not helpful.
The respondent generally submits that the appellant’s appeal is an attempt to classify the Member’s finding on causation as an error of law when, in reality, it is an appeal from findings of fact. The respondent asserts that the Member’s decisions should therefore not be disturbed on appeal because her conclusions were fairly open to her, and thus no error is established, referring to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[33] and Andersen.
[33] [2001] FCA 1833 (Branir).
The appellant did not file further submissions upon receipt of the transcript or submission in reply to the respondent’s submissions.
As to Ground A
The appellant’s submissions
The appellant reproduces r 78 of the 2021 Rules and submits that the Member failed to provide reasons for her conclusion and failed to provide sufficient reasoning in order for the parties to be aware of her view of the case put by each party. The appellant quotes from the decision of Deputy President Fleming in M & S Shipman Pty Ltd v Matters,[34] in which Fleming DP discussed what is required in order to succeed in a ground of appeal, asserting that the decision-maker’s reasons were inadequate. The appellant submits that a failure to address inconsistencies in the evidence, or to properly analyse the evidence and adequately consider all of the relevant evidence before determining which evidence is preferred, can amount to an error of law, relying on Symbion Health Limited v Ford,[35] and Charles Sturt University v Manning[36] as authorities for those propositions.
[34] [2003] NSWWCCPD 19.
[35] [2008] NSWWCCPD 13.
[36] [2016] NSWWCCPD 10.
The appellant submits that the Member failed to give reasons as to why she did not:
(a) accept the majority of the medical evidence disclosing that there was “no disc bulge” (presumably meaning to say that there was a disc bulge present) at the L1/2 level of the spine in the MRI scan dated 15 December 2021, rather than accept the evidence from Dr Harrington that, in his opinion the MRI scan was deficient;
(b) find that the symptoms after the event on 8 November 2021 and following the “home aggravation” were different, which indicated that the new pathology at the L1/2 level of the lumbar spine was unrelated to the injury on 8 November 2021;
(c) explain why she did not accept Dr Casikar’s opinion as to causation, given that he took an accurate history of the MRI scans and the change in the respondent’s symptoms after the “home accident”, and
(d) explain why she did not determine that Dr Harrington’s opinions were not provided in a “fair climate”, given the inaccuracy of the history recorded by Dr Harrington and Dr Harrington’s lack of reasoning.
The respondent’s submissions
The respondent asserts that the Member “carefully summarised, reviewed and addressed” each of the submissions raised by the appellant.[37] The respondent submits that, at [20] of her reasons, the Member acknowledged the issues in dispute and noted that the question of causation was central to the issues of injury and whether the respondent suffered from a disease injury within the meaning s 4(b)(ii) of the 1987 Act.
[37] Respondent’s submissions, [4].
The respondent submits that the Member carefully summarised the evidence contained in the respondent’s statement, the medical records of Dr Coughlan, Dr Moreland and Optimum Health and Performance; both MRI scans, the ADL assessment report provided by Ms Foster, the Certificates of Capacity, and the reports of Dr Harrington and Dr Casikar.
The respondent says that the Member also carefully summarised his submissions and those of the appellant, in particular the appellant’s submissions that the two MRI scans disclosed very different pathology and that little weight should be afforded to the opinion of Dr Harrington because the history recorded by Dr Harrington was confused and included matters not raised by the respondent in his statement.
The respondent points out that the Member was critical of the respondent’s statement evidence because of the lack of evidence as to the respondent’s ongoing pain following the injury on 8 November 2021, together with the absence of any reference to the episodes of severe pain when waking up on his holiday and when sitting at his desk. The respondent submits that the Member proceeded to consider the complaints of symptoms and the histories recorded in the treatment records and the MRI scans. The respondent refers to Paper Coaters Pty Limited v Jessop[38] to say that the Member was entitled to have regard to the symptoms and histories recorded in the treatment records and the MRI scan results because a history recorded in a medical report is evidence of a fact. The respondent points to the history recorded by Dr Harrington that the respondent experienced flare-ups of pain subsequent to the injury on 8 November 2021.
[38] [2009] NSWCA 1.
The respondent submits that the Member accepted Dr Harrington’s view that the sagittal cuts in the first MRI scan were not high enough to properly assess the pathology at the L1/2 level of the lumbar spine and Dr Harrington compared it to the subsequent MRI scan. The respondent says that the Member preferred that evidence over Dr Casikar’s opinion because Dr Casikar had not commented on whether those sagittal cuts were high enough. The respondent says that, in her assessment of the opinions of Dr Harrington and Dr Casikar, the Member referred to the change in Dr Casikar’s opinion, noting that Dr Casikar initially accepted that the respondent suffered damage to the annulus fibrosis which developed into a disc prolapse within a couple of weeks, and then thought that a delay of 15 weeks indicated that there was either a new injury or a spontaneous prolapse.
The respondent maintains that the Member gave careful consideration to the treating medical evidence and concluded that the respondent’s pain settled “somewhat” although flare-ups occurred. The respondent contends that the Member noted that the Certificates of Capacity continued to place restrictions on the respondent’s work, which the Member said was consistent with the respondent continuing to experience symptoms and impaired capacity for work, although “with the underlying pathology admittedly not apparent on the first MRI scan.”[39]
[39] Reasons, [110].
The respondent indicates that the Member found that there had not been a new injury because the events involving the respondent waking with pain and experiencing pain while sitting at his desk were not traumatic. The respondent maintains that the Member preferred the evidence of Dr Harrington over the opinions of Dr Casikar expressed in Dr Casikar’s later reports. The respondent submits that the Member weighed the evidence of Dr Harrington against that of Dr Casikar and preferred the evidence of Dr Harrington for the above reasons.
The respondent reiterates that the Member fairly identified the deficiencies in the respondent’s statement and the difficulties with the medical evidence. The respondent submits that the Member gave detailed consideration to the appellant’s submissions as to causation after reviewing the MRI scans, the records of the treating practitioners and the reports of Dr Harrington and Dr Casikar, concluding that she preferred the evidence of Dr Harrington.
As to Ground B
The appellant’s submissions
The appellant cites passages from DNA 17 v Minister for Immigration and Border Protection,[40] CPE15 v Minister for Immigration and Border Protection[41] and Sarheed v C1 Formwork Pty Limited,[42] which are authorities relevant to the obligation of a tribunal to consider the submissions made, and the consequences of a failure to consider a clearly articulated argument which, if accepted, was capable of affecting the outcome.
[40] [2019] FCAFC 146.
[41] [2017] FCA 591.
[42] [2021] NSWPICPD 7.
The appellant submits that the Member failed to engage with the appellant’s submissions that Dr Harrington’s opinion should not be accepted because it was based on an incorrect history and thus not produced in a “fair climate”. The appellant refers to the history provided to Dr Harrington by the respondent that his pain from the injury on 8 November 2021 was always in the same location but intensified after the recurrence in early 2022.
The appellant asserts that the Member did not engage or deal with its submissions that there were different sites for the pain when:
(a) the respondent did not say in his statement that the pain was always in the same location;
(b) in the respondent’s statement, he reported that in the incident on 8 November 2021, he was driving a forklift, hit a pothole and felt immediate pain in his back but there was no evidence as to the site of the pain, the severity of the pain or that he experienced referred pain;
(c) there is nothing in the statement as to the pain he experienced after 8 November 2021;
(d) the claim form completed by the respondent merely refers to “low back pain”, and does not mention any referred pain and the Certificate of Capacity dated 10 November 2021 only referred to “mechanical back pain”;
(e) the site of the tenderness recorded by Dr Moreland in her report dated 8 December 2021 pointed to the L5/S1 level of the spine;
(f) the MRI scan performed on 15 December 2021 merely referred to the presence of sciatica since a work injury a few weeks ago;
(g) the entry in Dr Moreland’s notes dated 2 March 2022 recorded a two or three week history of aggravation of the back pain radiating into the thigh, after waking in pain;
(h) the Optimum Health and Performance report by Ms Trinka dated 9 March 2022 recorded that the respondent’s presentation was a little different from the low back pain in that the respondent was experiencing constant bilateral lower back pain, with pain and numbness around the right hip, and
(i) the MRI scan dated 9 March 2022 reported the history of sciatica radiating down to the right thigh.
The appellant submits that the Member did not respond to or engage with its submission that Dr Coughlan’s opinion should be afforded no weight because it was reliant upon an inaccurate history, the Member failed to analyse the MRI scans, the Member failed to deal with the inconsistent opinions as to causation and failed to provide reasons.
The appellant asserts that the Member did not respond to, or engage with, its submissions that:
(a) Dr Harrington’s opinion could not be accepted because it was based upon a supposition that the respondent injured the L1/2 disc and the disc ruptured subsequently. The appellant says that a supposition does not, on the balance of probabilities, rise to the level of an opinion on causation;
(b) Dr Harrington did not properly explain the difference in the MRI scans;
(c) Dr Harrington did not provide an opinion that the prolapse was present on the MRI scan performed in December 2021;
(d) Dr Harrington’s observations that the respondent was advised that the first MRI scan was normal and that the MRI scan showed no abnormality other than that the fusion at L5/S1 was in a good position, indicated that the MRI scan undertaken on 15 December 2021 did not show significant pathology at L1/2, and
(e) Dr Harrington did not provide an opinion that the degenerative changes caused the later onset of the disc prolapse.
The appellant further submits that the Member failed to respond to or engage with its submissions that the predominance of evidence indicated that there was no injury to the disc on 8 November 2021 at the L1/2 level because:
(a) in the MRI scan dated 15 December 2021, Dr Steinberg reported that the “spinal cord terminates at a normal level L1”, the “distal cord and conus have normal appearances” and at L1/2 there was “no significant abnormality”;
(b) Dr Moreland observed in her report dated 2 March 2022 that the symptoms seemed inconsistent with the MRI scan;
(c) Dr Coughlan observed in his report dated 17 March 2022 that the MRI scan performed in November 2021 showed a small disc bulge at the L1/2 level while the subsequent MRI scan showed a large sequestrated disc segment at that level, compressing on the thecal sac and nerve root;
(d) Dr Coughlan expressed the view in his report dated 8 April 2022 that the radiological investigations from 2020 (the year of the motor vehicle accident) did not reflect the respondent’s current pathology and symptoms;
(e) Dr Casikar’s view was that, because the respondent had returned to work on 15 December 2021 and the disc prolapse was evident on the MRI scan dated 9 March 2022, the prolapsed disc was new pathology, unrelated to the November 2021 injury, and
(f) Dr Harrington observed that the MRI scan dated 15 December 2021 showed no abnormality other than the L5/S1 fusion.
The appellant submits that it was necessary for the respondent to engage with those substantive arguments, which were “clearly articulated” and “material to the central issue in these proceedings”.[43]
[43] Appellant’s submissions, [33].
The respondent’s submissions
The respondent points out that there is a significant overlap between this ground of appeal and Ground A and it is clearly apparent that the Member preferred the evidence of Dr Harrington over that of Dr Casikar for the reasons given. The respondent submits that the reasons given by the Member were that Dr Casikar:
(a) did not respond to Dr Harrington’s observation that the first MRI scan did not properly investigate the pathology at the L1/2 level of the spine;
(b) initially accepted that the injury in November 2021 developed into the L1/2 disc prolapse within a “couple of weeks”, which was an implicit acceptance by Dr Casikar that the respondent continued to experience symptoms at that level;
(c) subsequently did not accept that a disc prolapse 15 weeks after the injury was work related, but did not give an explanation as to why a delay of 11 to 13 weeks broke the chain of causation;
(d) did not record a history of a “new injury”, or any other event, that was capable of breaking the chain of causation, and
(e) at best, simply referred to a “likely” new injury or a “possibility” that the disc prolapse was spontaneous.
The respondent contends that the evidence overall was more than sufficient for the Member to conclude that the assumptions relied upon by Dr Harrington constituted a “fair climate” upon which to base his opinion, relying on Hancock v East Coast Timber Products Pty Limited[44] and Andersen.
As to Ground C
[44] [2011] NSWCA 11.
The appellant’s submissions
The appellant recites the oft quoted passage from Raulston v Toll Pty Ltd,[45] in which Roche DP summarised the observations of Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[46] and by Allsop J (as his Honour then was) in Branir as to what is required to disturb a primary decision-maker’s findings of fact.
[45] [2011] NSWWCCPD 25.
[46] (1966) 39 ALJR 505.
The appellant submits that the Member’s findings that there was no evidence that there was any other injurious event, other than the injury on 8 November 2021, and that that was not in dispute are fundamentally wrong because of the following evidence:
(a) Dr Moreland’s note dated 2 March 2022 refers to a two or three week history of aggravation of the lower back pain, radiating to the thigh when the respondent woke in pain one morning;
(b) Dr Moreland’s referral to Dr Coughlan noted a significant flare-up in early February, with no known cause;
(c) the history recorded by Dr Casikar that a few weeks after the November 2021 incident, the respondent was sitting at his desk when he felt sudden severe pain in the back and along the right groin;
(d) Dr Coughlan reported that Dr Moreland had informed him that the incident occurred on 10 March 2022;
(e) the ADL assessment report recorded a history of the respondent having woken up and could barely move because of severe low back pain;
(f) Dr Casikar’s opinion that it was very likely the incident was a new injury, and in the absence of a new injury, it was possible that the onset of the disc prolapse was spontaneous;
(g) the history recorded by Dr Coughlan was that the pain following the November 2021 injury settled within a few days but then flared up in March 2022;
(h) the history recorded by Dr Harrington was that:
(i)the respondent was sitting at a desk at work a few weeks after the November 2021 injury when there was a recurrence of back pain with radiation into his right groin, and
(ii)the respondent had experienced an earlier episode while on holidays when he woke up with severe pain and was unable to get out of bed.
The respondent’s submissions
The respondent relies on its submissions made under Ground B of the appeal above.
THE RELIEF SOUGHT
The appellant submits that the appeal should be allowed, the decision should be set aside, and a finding made that the respondent did not suffer an injury to the L1/2 disc on 8 November 2021.
The respondent seeks to have the appeal dismissed.
CONSIDERATION
Ground A: The Member committed an error of law in failing to provide adequate reasons for her findings
The appellant asserts that the Member failed to give reasons for accepting Dr Harrington’s evidence that the MRI scan dated 15 December 2021 was deficient because the sagittal cuts were not high enough to properly show the pathology at the L1/2 level.
The Member analysed the evidence in the two MRI scans, noting that both reports referred to the respondent’s complaints as “sciatica” and the first report was of the scan of the lumbar spine only, while the second report included the right hip. The Member considered that Dr Harrington had provided a clear explanation for the inconsistency in the two MRI scans, which was that the sagittal cuts were not high enough to show the pathology that was evident on the subsequent MRI scan, probably because the clinical history was that of sciatica. She reasoned that Dr Casikar did not provide evidence contradicting Dr Harrington’s opinion and she accepted Dr Harrington’s explanation, although she noted that both MRI scans reported on the pathology at the L1/2 level.
Those reasons were sufficient to explain why the Member accepted Dr Harrington’s view of the MRI scan dated 15 December 2021.
The appellant asserts that the inaccuracy of the history recorded by Dr Harrington and his failure to provide reasons for his opinion, meant that the Member ought to have determined that Dr Harrington’s opinion was not founded upon a “fair climate”. This complaint more properly relates to an allegation that the Member was in error to accept the opinion of Dr Harrington, rather than that the Member failed to provide reasons.
In any event, in addition to the Member’s reasons for accepting Dr Harrington’s observation about the sagittal cuts in the earlier MRI scan, the Member provided other reasons for accepting the evidence of Dr Harrington, namely that Dr Harrington:
(a) recorded a history of the events when the respondent woke in pain when he was on leave, and of the respondent experiencing pain while sitting at his desk;
(b) took the history that the symptoms from the injury on 8 November 2021 never really settled and the pain was always in the same location;
(c) considered that the supposition that the L1/2 disc was damaged in the injury on 8 November 2021 and subsequently suffered a prolapse of the disc was consistent with the history and the findings on the MRI;
(d) noted the presence of degeneration at that level but that the respondent was previously asymptomatic, and
(e) maintained his view that the disc prolapse was causally related to the incident on 8 November 2021.
In Paric v John Holland (Constructions) Pty Ltd[47] the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based.”
And:
“it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value.”[48]
[47] [1985] HCA 58, (Paric).
[48] Paric, [9].
The reasons expressed by Dr Harrington represented a fair basis upon which he provided his opinion. The Member reached a factual conclusion that she preferred the evidence of Dr Harrington to that of Dr Casikar. She provided cogent reasons for doing so, and her conclusion was open to her.
The appellant further asserts that the Member failed to give reasons for not accepting its submission that the change in the respondent’s symptoms indicated that the “aggravation” at home led to new pathology. I have discussed below in Ground C of the appeal the evidence as to whether there was a “new injury.” None of the medical experts (including Dr Casikar) described the event referred to by the appellant as “the home aggravation” as an injurious event. Dr Casikar merely stated that the presence of the pathology at the L1/2 level could be explained by the occurrence of an injury, or, if there was no injury, the prolapse may have been spontaneous. The Member correctly observed that there was no evidence of any other injurious event other than the work incident on 8 November 2021. That is sufficient reason to explain why the Member did not accept the appellant’s submission.
The appellant complains that the Member failed to give reasons for rejecting Dr Casikar’s opinion on causation. The appellant asserts that Dr Casikar “took an accurate history of the MRI scans and the change in symptoms after the home incident.”[49]
[49] Appellant’s submissions, [19(c)].
The Member paid considerable attention to the changing opinions of Dr Casikar.[50] Her sound and comprehensive reasons for rejecting the ultimate opinion of Dr Casikar are summarised by me at [62] to [64] above. Those reasons provide a proper explanation as to why she did not find Dr Casikar’s ultimate opinion persuasive. It cannot be said that the Member failed to give adequate reasons in that regard.
[50] Reasons, [108]–[113].
In considering the Member’s obligation to give reasons it is necessary to consider the Member’s reasons as a whole, without scrutinising the decision in search of error. As Kirby J observed in Roncevich v Repatriation Commission:[51]
“it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”[52]
[51] [2005] HCA 40 (Roncevich).
[52] Roncevich, [64].
In this matter, the Member gave detailed reasons for her acceptance of the evidence and for her preference for the opinion of Dr Harrington, as well as her ultimate conclusion on the question of causation of the L1/2 disc prolapse. Her reasons were more than adequate.
The appellant has failed to establish error of the kind described in this ground of appeal and the ground fails.
Ground B: The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with the submissions made on its behalf
The appellant asserts that it submitted to the Member that the history recorded by Dr Harrington that the site of the pain was always in the same location was wrong, so that the opinion of Dr Harrington was not produced in “a fair climate”. The appellant asserts that the Member did not deal with this submission. The appellant says that it submitted that other evidence supported there being a different site for the pain after the injury on 8 November 2021 to that following the onset of severe pain in 2022.
The Member acknowledged and provided a detailed summary of the appellant’s submissions as to the variation in the site of the respondent’s pain.[53] The Member proceeded to deal with those submissions, observing as follows:
[53] Reasons, [69(a)] and [69(d)–(e)].
“The [respondent’s] statement stated that he felt immediate pain in his back at work on
8 November 2021 when the forklift that he was driving hit a pothole and that the pain had not eased after lying down for an hour and that he then needed to be driven home. However, I accept that the [respondent’s] statement did not include any evidence by the [respondent] that he experienced subsequent ongoing pain in the days and weeks following the work incident in November 2021. I also accept that the [respondent’s] statement did not provide any history in relation to the desk incident or waking in pain when on holidays.
However, there is treating medical evidence which records pain symptoms experienced by the [respondent] during the period that followed the work incident on 8 November 2021 and the MRI finding of L1/2 pathology in March 2022.”[54]
And:
“I accept [the appellant’s] submission that there is some variation in the site and type of pain that is recorded by the various treating medical evidence, that was reported by the [respondent] since the work incident in November 2021. However, I note that there is also a significant degree of similarity. For example, both the MRI report dated 9 March 2022 and the MRI report dated 15 December 2021 noted a history of sciatica. It is apparent from the treating medical evidence that the [respondent] reported pain in his legs as well as his lower back from as early as 10 December 2021 and that he then intermittently complained of leg and lower back pain from time to time. The medical evidence also seems to fairly consistently show that the severe pain that the [respondent] experienced at the time of the work incident on 8 November 2021, settled somewhat with conservative treatment, however there were subsequent flare-ups of the back and leg pain. By 2 March 2022, Dr Moreland’s referral to Dr Coughlan noted that the [respondent’s] symptoms seemed inconsistent with the MRI scan taken on 15 December 2021.”[55]
[54] Reasons, [92]–[93].
[55] Reasons, [99].
The appellant’s assertion that the Member failed to deal with its submission is clearly not made out.
The appellant further asserts that the Member failed to engage with its submission that Dr Coughlan’s opinion should be afforded no weight because it was reliant upon an inaccurate history, the Member failed to analyse the MRI scans and the inconsistent opinions as to causation.
The Member provided a summary of the appellant’s submissions as to why the opinion of Dr Coughlan could not be accepted.[56] In her reasons, the Member concluded that Dr Coughlan’s report dated 12 August 2022 appeared to have been based on a correct history. She observed:
“Dr Coughlan’s reports dated 17 March 2022 and 8 April 2022 were clearly based on an incorrect history, referring to an excavator not a forklift and, more significantly, referring to an excavator incident ‘a few days ago’ which is not consistent with any other evidence. Dr Coughlan did however record that the [respondent] suffered a sudden onset of back pain at the time of the work incident in November 2021. Dr Coughlan reported that the [respondent’s] ‘pain settled after a few days with conservative treatment’ and also that ‘this seemed to settle after a few days and his back pain was not too severe’ and that the [respondent] ‘has been suffering the symptoms after the original injury which had subsequently resolve somewhat.’ In his report dated 12 August 2022, Dr Coughlan stated that the [respondent’s] ‘pain settled after a few days with conservative treatment but then flared up in March this year’. Dr Coughlan considered that the ‘flare up’ of pain symptoms in March 2022 directly related to the injury sustained in November 2021. Dr Coughlan based his opinion on his understanding of the mechanism of injury, subsequent symptoms and imaging being ‘all closely correlated.’ Dr Coughlan’s report dated 12 August 2022 appears to be based on a correct history.”[57]
[56] Reasons, [69(f)].
[57] Reasons, [98].
Once again, the Member clearly dealt with the appellant’s submissions and the appellant’s assertion that the Member failed to engage with its submissions is not made out.
The appellant further complains that the Member failed to deal with its submissions that Dr Harrington’s opinion was flawed because:
(a) it was based on a supposition that the L1/2 disc was injured in the incident on 8 November 2021 and subsequently “ruptured”;
(b) he did not properly explain the difference between the two MRI scans, or say that the prolapse was evident on the first MRI scan;
(c) the MRI scan dated 15 December 2021 did not show significant pathology at the L1/2 level, and
(d) he did not opine that the degenerative changes caused the later onset of the disc prolapse.
The Member noted that:
“[The appellant] submitted that the Commission should also give little weight to the evidence of Dr Harrington. [The appellant] submitted that the history recorded by Dr Harrington was confused and not detailed in the [respondent’s] statement. [The appellant] submitted that Dr Harrington’s did not provide an explanation for his opinion including how the disc prolapse occurred, whether degenerative change caused the disc prolapse and he did not say that the disc prolapse was there when the first MRI was done.”[58]
[58] Reasons, [69(g)].
The Member proceeded to deal with the appellant’s submissions in relation to the evidence of Dr Harrington. She reasoned:
“[The appellant] submitted that the significant difference in pathology at the L1/2 level shown on those respective MRI scans, in particular the failure of the early MRI to show any pathology which justifies the [respondent’s] symptomatology, supports a finding that the L1/2 pathology was not caused by the work incident on 8 November 2021.
However, Dr Harrington provided a clear explanation for that inconsistency in the two MRI scans. Dr Harrington stated that the first MRI didn’t include high enough sagittal cuts, probably because the clinical history on the request form indicated sciatica (which probably wasn’t correct). Dr Casikar did not provide any opinion specifically in relation to whether the first MRI included high enough sagittal cuts. I therefore accept the well reasoned and clear explanation provided by Dr Harrington as to the differing findings on MRI.”[59]
And:
“Turning to the independent medical expert evidence more specifically in relation to causation, Dr Harrington opined that the L1/2 pathology shown on the MRI on 9 March 2021 was caused by the work incident in November 2021. In one part of his report dated 23 January 2023, Dr Harrington stated his opinion that ‘[the respondent] seems to have suffered a degenerative disc prolapse at L1/2 on 8 November 2021 when the forklift hit a pothole and jarred his back’. Dr Harrington noted that the [respondent’s] pain symptoms ‘never really settled’ following the injury on 8 November 2021, there were a couple of significant ‘flare-ups’ of pain and the [respondent] reported that the subsequent pain was always in the same location. However later in the report, Dr Harrington stated that ‘The supposition is that he damaged the L1/2 disc and later suffered a prolapse of that level, which is consistent with the history and MRI findings’. I note that there seems to be some potential inconsistency in those two descriptions given by Dr Harrington in relation to the mechanism of injury, but it seems to me that the latter statement was intended to be a more detailed explanation of the mechanism of injury. In any event, Dr Harrington maintained that the forklift incident at work in November 2021 is causally related to the prolapse at L1/2 and the microdiscectomy surgery. Dr Harrington stated that there was some disc degeneration at L1/2 however the [respondent] was asymptomatic prior to the forklift incident at work in November 2021.”[60]
[59] Reasons, [104]–[105].
[60] Reasons, [107].
The Member acknowledged that the medical evidence was not “straightforward.”[61]
[61] Reasons, [114].
The Member adequately addressed the appellant’s submissions as to why the evidence of Dr Harrington should not be accepted.
Finally, the appellant asserts that the Member failed to address its submission that the evidence did not support a notion that the L1/2 disc was injured on 8 November 2021. The appellant referred to the earlier MRI scan, Dr Moreland’s report dated 2 March 2022, Dr Coughlan’s observations of the radiological evidence, Dr Casikar’s evidence and Dr Harrington’s observation of the MRI scan dated 15 December 2021. The Member provided a thorough analysis of all of that medical evidence at [93] to [113] of her reasons before reaching her conclusion. Her analysis was sufficient to address the appellant’s submissions.
It follows that this ground of appeal fails.
Ground C: The Member committed an error of fact in determining that there was no evidence of any other injury
The appellant asserts error on the part of the Member in determining that there was no other injurious event than the pleaded injury. The appellant points to the evidence of Dr Moreland, Dr Coughlan, Dr Casikar, Dr Harrington and the ADL assessment reported by Ms Foster. The appellant submits that this evidence indicates that another injurious event occurred. The two “events” asserted by the appellant are the occasions when the respondent woke up with pain and then subsequently experienced an onset of severe pain while sitting at his desk at work.
The history of the respondent having woken up with severe pain was recorded by Dr Moreland on 2 March 2022 as having occurred two to three weeks prior to the consultation. Dr Moreland described the onset as a “significant flare-up”,[62] causing pain in the in the “lower back radiating to anterior thigh.”[63]
[62] ARD, p 192.
[63] ARD, p 157.
In the ADL assessment report, Ms Foster noted that this incident occurred in February 2022.
None of those doctors attributed the disc prolapse to that event or describe that event as a “new injury.” The evidence from Dr Moreland and Ms Trinka, physiotherapist, regularly referred to the onset of more severe pain as “flare-ups” and Ms Trinka’s recovery program always included the intention to try to avoid such “flare-ups”. Dr Coughlan was of the view that it would take little provocation for the symptoms to “flare” again. The aggravations from time to time of symptoms set in train by an injury (during innocuous activities such as lying in bed or sitting at a desk) do not, of themselves constitute new injuries and none of the medical evidence describes them as such. The increased symptoms in fact are described by various treatment providers as “flare-ups,” which implies that the symptoms are a continuum of the injury on 8 November 2021. An ‘incident’ is only a mechanism and not itself a s 4 injury.[64] None of the medical experts attribute the pathological change, that is the disc prolapse, to either of those two events relied upon by the appellant and none express a view that the disc prolapse was caused or contributed to by those actions.
[64] Wyong Shire Council v Paterson [2005] NSWCA 74, [38].
The appellant relies on Dr Casikar’s evidence as evidence that a new injury occurred. Dr Casikar did not have a history of the event when the respondent woke in severe pain, so that it cannot be said that he considered that event a new injury. Dr Casikar disclosed that in 2013 he had reported on the respondent’s earlier 2010 injury and expressly stated that his report dated 25 March 2022 was to be read together with his 2013 report, which was not in evidence. Dr Casikar referred to a “recent new injury that occurred in November 2021”.[65] That is, the injury on 8 November 2021 was a new injury not related to the injury in 2010. Dr Casikar expressed that view in the context of the history that:
“A few weeks later when he was at work and he was not doing anything special except sitting at the desk, he suddenly felt severe pain in the back and pain along the right groin. He was not lifting any weight at that stage.”[66]
[65] Reply, p 56.
[66] Reply, p 55.
The closest Dr Casikar came to an opinion that the event of sitting at the desk was causative is his observation in his second report dated 26 April 2022 that the disc prolapse was “very likely a new injury” but if “there was no new injury it is possible that the disc prolapse was spontaneous.”[67] Dr Casikar recorded no history of the onset of severe symptoms when the respondent woke in bed and it can be inferred from the tenor of Dr Casikar’s reporting of the incident while the respondent was sitting at his desk that Dr Casikar considered that event as innocuous. While Dr Casikar might have considered a new injury had occurred, he by no means identified any such event. The Member was therefore not in error to conclude that that there was no other injury.
[67] Reply, p 59.
In its submissions, the appellant further asserts that the Member erred by observing that it appeared that there was no dispute that there was no other injury. The ground of appeal did not identify that as an issue and the appellant provided no submissions relevant to the assertion. Nonetheless, the Member, while making that observation, proceeded to determine whether there was another injury at [111] and [112] of her reasons. In those circumstances, the appellant cannot establish error on the part of the Member.
This ground of appeal fails.
CONCLUSION
The appellant appeals the Member’s decision on three grounds, the first two of which are on the basis that the Member failed to give adequate reasons and failed to afford it procedural fairness because the Member did not address its submissions. It is readily apparent from the extracts of the Member’s Certificate of Determination provided above that the Member conclusively addressed the appellant’s submissions and provided detailed reasons for accepting or rejecting those submissions. The appellant made no reference at all in this appeal to the Member’s comprehensive reasoning process or her findings and, given the extent of the Member’s reasons, it is difficult to comprehend how a practitioner could form a view that the appeal had reasonable prosects of success, as the appellant is required to do.
For my reasons given, none of the appeal grounds succeed, and the Member’s Certificate of Determination dated 31 July 2023 is confirmed.
DECISION
The Member’s Certificate of Determination dated 31 July 2023 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
9 August 2024
0
20
0