DGL (Aust) Pty Ltd v Martino - [2023] NSWPICPD 30

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30
APPELLANT:	DGL (Aust) Pty Ltd
RESPONDENT:	Daniel Martino
INSURER:	Alliance Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-W2911/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	29 May 2023
ORDERS MADE ON APPEAL:	1. Leave to appeal the Member’s interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Member’s Certificate of Determination dated 18 October 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – whether the monetary threshold required to appeal is satisfied – Grimson v Integral Energy [2003] NSWWCCPD 29; Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5; Ausgrid v Parasiliti [2020] NSWWCCPD 51 applied – whether the decision appealed against is an interlocutory decision within the meaning of s 352(3A) of the 1998 Act – South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied – determination of a dispute on the basis of common sense – Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
Hall & Wilcox Lawyers
Respondent:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF Member’s DECISION:	18 October 2022

INTRODUCTION AND BACKGROUND

Mr Daniel Martino (the respondent) was employed by DGL (Aust) Pty Ltd (the appellant) as a truck driver. On 4 September 2019 (referred to in some documents as 5 September 2019), the respondent stepped out of his truck and slipped on ground that was wet from quite heavy rain, falling into a ditch. The respondent twisted his right ankle and landed on both outstretched hands. He was taken to hospital, an x-ray was performed which did not disclose any pathology, and the ankle was bandaged. He was provided with crutches and a wheelchair and was discharged. The respondent was subsequently provided with a CAM boot which he wore for several weeks.
An MRI scan performed on 19 September 2019 disclosed a tear of the anterior talofibular ligament and a partial tear of the calcaneofibular ligament, with contusions. The respondent consulted a number of medical practitioners and on 13 January 2020 was admitted to hospital, undergoing a right ankle arthroscopy and ligament stabilisation. The respondent reported ongoing difficulties with his right ankle throughout 2020. He also complained of pain in both wrists, which was investigated and treated.
The respondent alleged that, as a result of his right ankle injury, he relied more on his left side and began to experience pain in his lumbar spine.
The appellant accepted liability for the injury to the right ankle and both wrists. The respondent then made a claim for a lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on the basis of 31% whole person impairment. The impairment claim comprised of impairments of the right lower extremity (ankle), both upper extremities (right and left wrists), and scarring following surgery to the right ankle and the right wrist. The claim also included an assessment of the lumbar spine on the basis that the onset of lumbar spine symptoms approximately 15 months after the injury was referrable to walking with an altered gait because of the ankle injury.
The appellant disputed liability for the claim in respect of the lumbar spine.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) in respect of the claim pursuant to s 66 and a claim for treatment expenses pursuant to s 60 of the 1987 Act. The dispute proceeded to arbitration, and a Member of the Commission determined that amongst other matters, the respondent sustained a consequential condition in his lumbar spine as a result of the injury to the right ankle.
The appellant appeals that 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 submit that it is appropriate for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions 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.

THE TRANSCRIPT OF PROCEEDINGS

On 23 November 2022, a Delegate of the President forwarded a copy of the transcript of the arbitration proceedings to the parties, as well as the sound recording of the proceedings. The parties were given the opportunity to make submissions in relation to the transcript but were also directed to advise the Commission whether their appeal submissions were impeded by the unusually high instances when the recording was “not transcribable”. Neither party raised any difficulty in relation to the absence of a complete transcript.
I reviewed the submissions made by the parties in the appeal and the issues raised by the appellant, as well as the transcript. I formed the view that the transcript was sufficient to show that the matters raised by the parties in respect of what was the subject of submissions to the Member were in fact recorded in the transcript. On that basis, and in the context of neither party expressing any difficulty because of the quality of the transcript, I considered that the appeal could proceed.

THRESHOLD MATTERS

There is no dispute that the appeal was filed within the time required pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

The monetary threshold

The respondent disputes that the monetary threshold to appeal as prescribed by s 352(3) of the 1998 Act is satisfied. Section 352(3) of the 1998 Act provides as follows:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the compensation appealed against.”
The respondent asserts that, as he is yet to be assessed by a medical assessor in respect of his whole person impairment, it is unknown whether the monetary threshold to appeal as prescribed by s 352(3) of the 1998 Act is satisfied.
The appellant in its submissions in reply submits that the Member’s orders did not include a monetary award. The appellant refers to the respondent’s claim as pleaded in the Application to Resolve a Dispute (ARD), which was a claim for $90,075.63 in respect of 31% whole person impairment pursuant to s 66 of the 1987 Act. The appellant asserts that the amount has been incorrectly calculated and should instead be a total of $89,070. The appellant submits that the percentage claimed without including 7% whole person impairment of the lumbar spine is 24%, which equates to a monetary amount of $65,050 and on that basis, the amount of compensation in dispute exceeds the monetary threshold. The appellant refers to Grimson v Integral Energy,[1] in which Fleming DP observed that the:
“... ‘amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”[2]
[1] [2003] NSWWCCPD 29 (Grimson).
[2] Grimson, [30].
The appellant also refers to the decision of Byron DP in Mawson v Fletchers International Exports Pty Ltd,[3] in which the Deputy President observed as follows:
“It seems that ‘20%’ in subsection (2)(b) is limited to a decision in which an award is made and that the operation of this subsection does not preclude appeals against decisions in which no award was made. The purpose of subsection 2(b) in my view, applies a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.”[4]
[3] [2002] NSWWCCPD 5 (Mawson).
[4] Mawson, [22].
The appellant submits that the threshold requirement in s 352(3)(b) does not apply when no amount was awarded in the decision appealed against.
The respondent was given the opportunity to respond to the appellant’s submissions. In his submissions lodged on 11 May 2023, the respondent maintains its position that the monetary amount cannot be calculated until the assessment of the lumbar spine is finalised and the amount of compensation is known. The respondent submits that Grimson and Mawson do not apply because those matters involved an outcome where no amount was payable because the worker’s claim failed or there was either a dispute about procedural matters or a dispute about costs. The respondent contends that:
“To allow the appeal at this stage would be an unjustified mechanism to circumvent the clear restrictions on appeals. The clear intent was that there were not to be appeals over small amounts or small adjustments in benefits. To consider an appeal at this stage would be to ignore the restriction imposed by the legislature.”[5]
[5] Respondent’s submissions lodged 11 May 2023, [9].
The respondent submits that any determinations contrary to that proposition are wrong, and the appellant would have a right to appeal following determination of the dispute when the quantum of the amount in dispute is determined.
The question of whether the monetary threshold is satisfied in circumstances where the Member determined whether a body part is to be referred to a medical assessor (formerly an Approved Medical Specialist) has been considered in a number of Presidential Decisions, such as Fleming DP inFletchers International Exports Pty Limited v Regan;[6] Deputy President Roche in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services,[7] and Acting Deputy President Snell (as he then was) in Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett.[8]
[6] [2004] NSWWCCPD 7.
[7] [2007] NSWWCCPD 227.
[8] [2010] NSWWCCPD 62.
In particular, in Ausgrid v Parasiliti,[9] the appellant in that case raised the same argument in relation to the monetary threshold as that presented by the respondent in these proceedings. Snell DP made the following observations:
“No compensation was awarded in the Arbitrator’s decision. In those circumstances it is settled practice in the Commission that whether the threshold in s 352(3) is satisfied is determined by reference to the claim as particularised by the worker. The claim was particularised in the current matter at $25,781.25, in respect of 17 per cent whole person impairment. The assessment of 17 per cent in Dr Giblin’s most recent report (on which the claim is based) is impairment of 7 per cent, 6 per cent and 4 per cent in respect of the lumbar spine, left upper extremity and right upper extremity respectively.
…
The monetary value of the particularised impairment in respect of the right upper extremity, which was the component of the claim in issue, exceeds $5,000. The appeal has the capacity to affect recovery of the whole of that amount, if the finding that the condition of the right upper extremity is secondary to the left upper limb injury is set aside. The requirements of s 352(3) of the 1998 Act are satisfied.”[10]
[9] [2020] NSWWCCPD 51 (Parasiliti).
[10] Parasiliti, [9]–[11].
I reject the respondent’s submission that the monetary threshold has not been satisfied. Applying the above authorities, I accept the appellant’s submissions that the monetary threshold is satisfied and find accordingly.

Whether the decision appealed against is interlocutory in nature

Section 352(3A) of the 1998 Act provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The respondent asserts that the decision of the Member is an interlocutory decision about whether the respondent suffers from a consequential condition in his back. He submits that there has been no final determination of his entitlement, which is contingent upon an assessment by a medical assessor.
The appellant submits that the decision is not interlocutory in nature. The appellant refers to the test enunciated in Licul v Corney,[11] that is, that the question to be posed is whether the judgment or order finally disposes of the rights of the parties.
[11] [1976] HCA 6.
The appellant also refers to Presidential decisions of Candy ADP in CoatesHire Operations Pty Ltd v Geddes[12] and O’Grady DP in Visy Board Pty Ltd v Nguyen.[13] Both decisions involved appeals from determinations made by Arbitrators of the former Workers Compensation Commission about a finding of injury, with a remittal for assessment of the injured worker’s permanent impairment by an Approved Medical Specialist (AMS) in circumstances where the appeal was lodged prior to the assessment taking place. The appellant points out that, in Geddes, Candy ADP observed (citation omitted):
“This is in conformity with the decision of Roche DP in P&O Ports Limited v Hawkins that a final decision which determines the parties’ rights on issues such as worker, injury or substantial contributing factor, inter alia, is not interlocutory although medical disputes remain to be determined. The decision of the Deputy President has been followed in many subsequent cases and I propose to do likewise. There has been a finding of injury to the worker’s neck in this case which is final unless set aside on appeal although there has been no determination by an AMS as to the existence or extent of permanent impairment referable to such injury.”[14]
[12] [2008] NSWWCCPD 120 (Geddes).
[13] [2010] NSWWCCPD 101 (Nguyen).
[14] Geddes, [18].
In Nguyen, O’Grady DP observed (citation omitted):
“That finding of injury constitutes a finding as to liability and is binding upon the parties. Such finding of injury defines the parties’ rights and liabilities and as such is a determination which finally disposes of the rights of the parties in the sense as addressed by Gibb J in Licul v Corney. Such a determination is not ‘interlocutory’ within the meaning of … s 352(8). Mr Nguyen’s submission that an appeal may not be made against the Arbitrator’s determination must be rejected.”[15]
[15] Nguyen, [22].
The appellant submits that, on the basis of those decisions, the Member’s decision is not interlocutory as it has finally determined the rights of the parties in respect of liability for the lumbar spine. The appellant submits that, in the alternative, if the Member’s decision is found to be interlocutory, it seeks leave to appeal, as it is “necessary or desirable for the proper and effective determination of the dispute” in accordance with s 352(3A). The appellant relies on the decision of Phillips P in Mosawi v Baron Forge (NSW) Pty Ltd,[16] in which the President considered that it was necessary that liability in respect of the cervical spine be finalised before the assessment of whole person impairment took place.
[16] [2022] NSWPICPD 48 (Mosawi).
The respondent submits that the cases referred to by the appellant were determined prior to the Court of Appeal decision in Skates v Hills Industries Pty Ltd,[17] in which Basten and Leeming JJA observed “that the jurisdiction of the Commission is defined by the medical dispute before it”[18] so the jurisdiction of the Commission is limited to the dispute about the degree of permanent impairment. The respondent says that the orders made by the Member do not finally determine that dispute and the matters that flow from the assessment can be properly dealt with after the final determination is made.
[17] [2021] NSWCA 142.
[18] Respondent’s submissions lodged 11 May 2023, [12].
The decisions of Geddes and Nguyen are inconsistent with a number of subsequent Presidential decisions about whether a determination prior to a referral for medical assessment is interlocutory in nature, including Mosawi. In Mosawi, the Member determined that the worker’s cervical spine was not injured as alleged and referred the accepted injuries of the lumbar and thoracic spine to a medical assessor. The appeal was lodged before the medical assessment took place. In the appeal, the President accepted that the Member’s decision in respect of the cervical spine was interlocutory.
In Moore v Greater Taree City Council,[19] the Arbitrator determined that the worker suffered injury to her back in the course of her employment and referred the worker’s claim for permanent impairment to an AMS. Acting Deputy Snell (as he then was) reviewed a number of decisions as to whether decisions made before a referral to a medical assessor are interlocutory in nature.[20] He concluded that:
“The order made in the present matter has not finally disposed of any rights but has merely determined that the assessment of the claim for lump sum compensation may be referred to an AMS for assessment.”[21]
[19] [2009] NSWWCCPD 17 (Moore).
[20] P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; McGuire v State Transit Authority of NSW (No 2) [2007] NSWWCCPD 109; Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126; Waverley Council v Sheen [2007] NSWWCCPD 127.
[21] Moore, [37], citing Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 per Roche DP at [24].
Both Mosawi and Moore are on all fours with the present matter. Additionally, in South Western Sydney Area Health Service v Edmonds,[22] the Court of Appeal considered an appeal from a Presidential decision that involved an Arbitrator’s determination in favour of the worker that her lumbar and left knee symptoms were referrable to her accepted right knee injury. The appeal to the President was lodged prior to the claim being referred for assessment by an AMS. McColl JA (with Tobias JA agreeing) made the following observation:
“South Western Sydney Area Health Service seeks leave to appeal pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act1998 … from a decision of Deputy President Fleming of the Workers Compensation Commission of New South Wales in turn dismissing an appeal from a determination of Arbitrator Wynyard … Leave is required because the Arbitrator’s determination, and hence the Deputy President’s decision, was interlocutory.”[23]
[22] [2007] NSWCA 16 (Edmonds).
[23] Edmonds, [12].
I am satisfied that the decision the subject of this appeal is an interlocutory decision and the appellant requires leave to bring the appeal at this stage.
Section 352(3A) provides that the Commission is not to grant leave unless it is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. The appellant simply submits that:
“it is both necessary and desirable for the proper and effective determination of the dispute to have the lumbar spine dispute finalised prior to referral of the Respondent to a Medical Assessor.”[24]
[24] Appellant’s submissions in reply, 19 January 2023, [15].

The respondent maintains that a determination at this stage would not be useful and leave should not be granted because “it could result in an indirect avoidance of the restrictions on appeals.”[25] The respondent asserts that there will be no delay because an assessment of his whole person impairment will be required in any event, the respondent will not be excluded from his entitlements and if final orders are made, he would be entitled to interest on the unpaid compensation.
[25] Respondent’s submissions lodged 11 May 2023, [16].
I do not accept the respondent’s submissions. The current referral to the Medical Assessor includes an assessment of the lumbar spine. If the appeal does not proceed at this interlocutory stage, the assessment of the lumbar spine will take place and a Medical Assessment Certificate will be issued. If the appeal is then lodged and succeeds, the Medical Assessment Certificate will require amendment which would involve further procedures taking place in the Commission. I am of the view that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined.
Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act is therefore granted.

THE EVIDENCE

The respondent’s statement evidence

The respondent provided a statement dated 22 April 2022.[26] He described how the injury on 4 September 2019 to his right ankle and both wrists occurred. He stated that he was taken by ambulance to hospital. He provided details of the treatment he received at the hospital. He said that he wore the CAM boot on his right leg for several weeks after the injury.
[26] ARD, pp 1–9.
The respondent advised that an MRI scan of his right ankle was performed on 19 September 2019, which disclosed a tear of the anterior talofibular ligament and a partial tear of the calcaneofibular ligament, with contusions. He said that his general practitioner, Dr Vladimir (Victor) Koleda, referred him to Dr Jay Davé, orthopaedic surgeon.
The respondent advised that he commenced physiotherapy treatment performed by Mr Seb Rendeci in October 2019, which he continued to receive regularly at the recommendation of Dr Davé, who also prescribed pain medication and recommended hydrotherapy. He said the physiotherapy treatment was particularly beneficial.
The respondent stated that his general practitioner also referred him to Dr Sameer Viswanathan, orthopaedic surgeon, who he consulted on 4 December 2019. He said he complained to Dr Viswanathan of pain, instability and swelling in the right ankle. He said that Dr Viswanathan recommended surgery in the form of a right ankle arthroscopy and lateral ligament stabilisation, which was performed on 13 January 2020. The respondent described significant post-operative swelling, stiffness and instability in his right ankle and advised that he was required to wear a CAM boot for two weeks and then a brace on his ankle for a further two weeks. He said that, during that time, he was more reliant on his left leg and began to “overcompensate.” He stated that physiotherapy alleviated his pain for a period after each session.
The respondent referred to the bilateral wrist symptoms and advised that he underwent surgery to the right wrist but declined surgery to the left wrist because the right wrist surgery had not alleviated his pain.
The respondent complained that throughout 2020, he continued to rely more on his left side because of his right ankle difficulties. He said that he began to experience pain in the lumbar spine following periods of increased activity such as extended walking or sitting, which increased over time. The respondent added that he was referred to an exercise physiologist, Ms Penelope Liaros, for regular treatment designed to improve his overall strength and functional capacity but he continued to experience pain and restricted movement in his wrists and right ankle.
The respondent stated that in 2021 he continued to experience pain in his right knee, right ankle and lower back which impacted his daily life and interrupted his sleep. He advised that in March 2021, he specifically complained to Dr Petrus Weenink, general practitioner, of the pain in his lower back. The respondent reported that he was heavily reliant upon his left side. He said that Dr Weenink recommended physiotherapy treatment for his lower back symptoms.
The respondent described ongoing treatment in respect of his bilateral wrist pain.
The respondent said that on 2 September 2021, he consulted Dr Joshua Tuxford (general practitioner in the same practice as Dr Weenink) and again complained of lower back pain which the respondent attributed to continuing to rely upon his left side because of his right ankle symptoms. Dr Tuxford recommended continued physiotherapy.
The respondent indicated that throughout 2021, he put on 10 kilograms in bodyweight because of inactivity, which contributed to the lumbar pain. He said he was unable to sit or stand for lengthy periods. He said that Dr Weenink and the physiotherapist advised him to consult a dietician.
The respondent stated that he continued to experience pain in both wrists, severe pain in his right ankle and significantly worsening constant pain in his lumbar spine, in particular when siting or standing for long periods. He described the difficulties he experienced as a result of his injuries.

Dr Petrus Weenink, general practitioner

Dr Petrus Weenink, the respondent’s general practitioner, reported to the appellant on 27 July 2020.[27] He noted the injury to the right ankle and that in the fall, the respondent landed on his wrists. He listed the respondent’s complaints as bilateral wrist stiffness and reduced range of motion, commencing a few days after the injury but also associated with being on crutches for many months. He advised that the respondent also had developed an associated adjustment disorder with depression. Dr Weenink said that the respondent was due to have surgery for his wrists and would require ongoing physiotherapy for his ankle.
[27] ARD, pp 61–62.
Dr Weenink wrote a further report to the appellant dated 25 March 2021 in response to questions posed by the appellant.[28] Dr Weenink advised that the respondent experienced a gradual onset of back pain which was first noted on about 20 January 2021. He said that the respondent had undergone several surgeries and was significantly limited in his capacity to work, which had resulted in weight gain. He recommended physiotherapy.
[28] Reply to Application to Resolve a Dispute (reply), pp 2–3.
Dr Weenink reported to the respondent’s legal representatives on 11 April 2022.[29] He described the respondent’s injuries and confirmed that the respondent underwent surgery to the right ankle on 13 June [sic, January] 2020. Dr Weenink reported that on 21 August 2020, the respondent complained of reduced range of motion of his right ankle and difficulty with dorsiflexion. Dr Weenink noted that Dr Bassel Hassan, neurologist, had reported similar symptoms but with an absence of EMG or nerve conduction abnormalities.
[29] ARD, pp 67–68.
Dr Weenink advised that the respondent reported back pain on about 20 January 2020. The doctor initially considered the symptoms probably related to deconditioning because of inactivity. He conceded that he may have been mistaken about the cause because mild lower back pain resulting from deconditioning usually resolved within 4 to 6 weeks of physiotherapy treatment, and the respondent’s symptoms had persisted beyond that time. Dr Weenink advised that the respondent was referred to Dr Viswanathan in relation to the respondent’s reduction in dorsiflexion of the right ankle, and Dr Viswanathan was of the view that right ankle symptoms may be due to a tight gastrocnemius muscle.
The first record of a complaint in respect of the respondent’s back symptoms recorded in Dr Weenink’s clinical notes was an entry made by Dr Weenink on 20 January 2021 in a telephone conference.[30] Dr Weenink noted “advised mild low back pain has developed. Pt has not been working and also gained some weight likely deconditioning contributing to low back pain.” He referred the respondent for physiotherapy.
[30] ARD, p 342.
Dr Weenink issued a Certificate of Capacity dated 25 February 2021, advising that the respondent was referred for physiotherapy treatment for the lower back “due to deconditioning and weight gain while not being able to work normal hours.”[31]
[31] ARD, pp 274–277.
Dr Weenink’s clinical notes recorded between 26 June 2020 and 8 January 2021[32] disclosed that:
(a)    on 26 June 2020, the respondent reported pain in the right ankle at times;
(b)    on 10 July 2020, Dr Weenink noted stiffness and reduced range of movement in the ankle joint;
(c)    on 21 August 2020, the respondent had an inability to dorsiflex the right foot;
(d)    on 23 September 2020, the reduced dorsiflexion had become an “issue”;
(e)    on 19 October 2020, Dr Weenink discussed the ongoing issue of right ankle weakness with Mr Rendeci, physiotherapist;
(f)    on 19 November 2020, the respondent was awaiting review by a neurosurgeon in respect of right foot drop;
(g)    on 10 December 2020, the respondent had an inability to fully dorsiflex, and
(h)    on 8 January 2021, the respondent had attended Dr Hassan, neurosurgeon, in respect of right foot drop.
[32] ARD, pp 333–342.

Mr Seb Rendeci, physiotherapist

On 20 April 2020, Mr Seb Rendeci referred the respondent to Dr Kwan Yeoh, orthopaedic surgeon, in respect of the respondent’s bilateral wrist complaints.[33] Mr Rendeci recorded that the respondent had been recovering well from the right ankle surgery.
[33] ARD, pp 48–50.
On 24 September 2020, Mr Seb Rendeci reported “to whom it may concern.”[34] He advised that the respondent was still undergoing intensive rehabilitation with physiotherapy and in his view, the respondent would not be able to return to work as a commercial vehicle driver and would not be able to find suitable work in the foreseeable future.

Dr Jay Davé, orthopaedic surgeon

[34] ARD, p 53.

The respondent was referred by Dr Victor Koleda, general practitioner, to Dr Jay Davé in respect of his right ankle injury. Dr Davé reported to Dr Koleda in a report wrongly dated 31 July 2019.[35] He referred to the respondent’s injury as having occurred five weeks previously. He described the respondent’s ankle symptoms as “severe” and reported that the respondent’s symptoms had not responded to physiotherapy and medication. He said that the respondent preferred to walk on the forefoot and was experiencing pain along the lateral border of the ankle, with minimal swelling and tenderness. Dr Davé suggested that the respondent might be developing a chronic regional pain syndrome.
[35] ARD, p 30.

Dr Sameer Viswanathan, orthopaedic surgeon

Dr Koleda referred the respondent to Dr Sameer Viswanathan. Dr Viswanathan reported to Dr Koleda on 7 November 2019 and 4 December 2019.[36] He noted that the respondent had experienced minimal improvement since the injury, was unable to weight bear, was struggling with pain and felt that the ankle was unstable. Dr Viswanathan considered that the respondent would need an ankle ligament reconstruction.
[36] ARD, pp 77–78.
Dr Viswanathan performed surgery in the form of a right ankle arthroscope and lateral ligament stabilisation on 13 January 2020.[37] He reviewed the respondent post-surgery and reported to Dr Koleda on 12 February 2020. He advised that the respondent could commence partial weight-bearing in the CAM boot and start performing range of motion exercises. Dr Viswanathan indicated that he wished to review the respondent in two weeks, at which time the respondent could commence wearing an ankle brace.
[37] ARD, p 69.
On 11 March 2020, Dr Viswanathan reported that the respondent was doing very well, but was experiencing a diminished range of movement, with continued problems with his balance. Dr Viswanathan suggested weaning the respondent into a softer ankle brace and arranging for the respondent to undergo range of movement exercises.[38]
[38] ARD, p 71.
Dr Viswanathan informed Dr Koleda that he had participated in a case conference with the respondent and the respondent’s physiotherapist on 20 April 2020.[39] He reported to Dr Koleda that the respondent was doing well without any ankle instability or giving way but was experiencing some pain over the peroneal tendons and impingement type pain over the anterior ankle, as well as issues with balance. Dr Viswanathan observed that the respondent was progressing well with excellent range of movement and “no anterior draw.”
[39] ARD, p 72.
Dr Viswanathan reviewed the respondent on 22 July 2020.[40] Dr Viswanathan reported to Dr Koleda that the respondent complained of impingement type pain symptoms and had a “very tight gastroc fascia with a positive Silfverskiold test.” He advised that he had arranged for the respondent to undergo an MRI scan in order to ascertain the integrity of the repair surgery.
[40] ARD, p 74.
The respondent underwent the MRI scan and Dr Viswanathan reviewed the results on 29 July 2020. He advised Dr Koleda that the scan showed that the surgical repair was intact and there was no sign of anterolateral impingement. He confirmed that the respondent had no ankle instability, had limited dorsiflexion, suffered from a tight gastroc tendon and the Silfverskiold test was positive.
Dr Viswanathan conducted a final post-operative review of the respondent on 4 November 2020.[41] He reported to Dr Koleda that the respondent continued to have some limitation of dorsiflexion, but was pain free and his instability had settled.
[41] ARD, p 76.
The respondent attended Dr Viswanathan again on 21 July 2021. Dr Viswanathan indicated that the ankle remained stable, the respondent was doing well overall but continued to complain of a tight gastric tendon and the Silfverskiold test was still positive. Dr Viswanathan considered that an open gastroc release might be of benefit.[42]
[42] ARD, p 80.

Dr Bassel Hassan, consultant neurologist

Dr Bassel Hassan reported to Dr Weenink on 7 December 2020.[43] He noted the referral related to the respondent experiencing right ankle weakness. He took the history that the respondent reported significant reduction in pain following the right ankle surgery in January 2020, but subsequently experienced right ankle dorsiflexion weakness with paraesthesia in the right foot. He noted that the respondent had not noticed any gait disturbance and the symptoms had remained static over time. Dr Hassan described the respondent’s gait as “mostly normal” with potentially a subtle right foot drop. Dr Hassan observed weakness of right ankle and plantar dorsiflexion, with the weakness in plantar dorsiflexion resulting in an inability to stand on his toes of the right foot. Dr Hassan noted that the respondent’s right ankle jerk was depressed. He further noted that the respondent reported reduced tactile sensibility and paraesthesia over the right lateral leg, the entirety of the foot and in the thigh, which was consistent with sciatic nerve distribution.
[43] ARD, p 54.
Dr Hassan considered that the findings were suggestive of right sciatic nerve dysfunction and referred the respondent for an MRI scan of the right sciatic nerve at the pelvis. He considered that the symptoms could possibly have resulted from the positioning of the respondent when he underwent the ankle surgery.
Dr Hassan reported to Dr Weenink again on 22 March 2021 following review of the respondent’s right foot weakness and numbness and in relation to the results of the MRI scan.[44] Dr Hassan advised that no abnormalities were noted but said that neuropraxia or mild compressive nerve injury could not be picked up by MRI scan. Dr Hassan observed that the respondent’s gait was normal with no foot drop, he was able to walk normally on both heels and toes, the right ankle jerk was slightly depressed and there was no wasting in the leg or foot and no asymmetry. Dr Hassan formed the view that the respondent’s symptoms could be related to minor right sciatic nerve compression.
[44] ARD, p 57.

Ms Penelope Liaros, exercise physiologist

Ms Penelope Liaros reported to Dr Weenink in an undated report which appeared to be produced in 2021.[45] She advised that the respondent had first attended on 17 December 2020 and had undergone 16 sessions of a progressive resistance program intended to increase the respondent’s bilateral wrists and right ankle range of motion and overall strength and function. Ms Liaros identified the restricted range of motion of the wrists and the right ankle, as well as reactive depression, as barriers that may impact the respondent’s progress and compliance. She noted that, over the period, the respondent’s overall function and capacity had minimally improved and the respondent remained with significant restrictions.
[45] ARD, pp 58–60.

Dr Mohammed Assem, rehabilitation specialist

Dr Mohammed Assem provided a report dated 13 September 2021 at the request of the respondent’s legal representatives.[46] He recorded a consistent history of the injury and the subsequent treatment, with the exception that Dr Assem noted the surgery to the right ankle was performed on 13 June 2020, rather than 13 January 2020. Dr Assem recorded that the respondent provided the history of developing low back discomfort with shooting right leg pain as a consequence of altered gait and rated his right ankle pain as 10 out of 10, which was worse after standing or walking for long periods.
[46] ARD, pp 21–29.
Dr Assem observed that the respondent mobilised with a normal gait. He recorded his observations of both wrists and observed that the respondent demonstrated normal range of lumbar movement without tenderness, muscle guarding or spasms. Dr Assem recorded that the respondent complained of pins and needles in his right thigh, and on that basis assessed the respondent’s whole person impairment of the lumbar spine as 7%, which included 2% for his “moderate” limitations in daily activities.
In respect of the right ankle, Dr Assem noted that right ankle jerk was absent and there was no eversion or active dorsiflexion of the right foot. He assessed the whole person permanent impairment of the right lower extremity as 13%.
Dr Assem reviewed the relevant radiological investigations. In response to specific questions posed by the respondent’s legal representatives, Dr Assem relevantly advised that the respondent continued to experience pain in his right ankle and wrists and had developed secondary lower back pain due to his altered gait.

Radiological investigations

An MRI scan of the lumbar spine was undertaken on 1 December 2021.[47] The radiologist concluded that there was a minor disc bulge at the L5/S1 level with no nerve impingement, and no definite cause for the respondent’s symptoms was identified.
[47] Reply, p 18.

Dr Anil Nair, consultant orthopaedic surgeon

Dr Anil Nair examined the respondent and provided a report dated 23 November 2021 at the request of the appellant.[48] The history recorded by Dr Nair included that the respondent did not enjoy improvement in his symptoms after the right ankle surgery and that after the wrist surgery, the respondent experienced worsening pain in the lumbosacral junction.
[48] Reply, pp 4–10.
Dr Nair said that he had observed the respondent’s gait over a length of 25 metres and there was no impediment, but the respondent was unable to walk on his toes or heel walk because of right ankle pain. He recorded a loss of dorsiflexion, plantar flexion and depressed inversion and eversion of the right ankle compared to the left. He found paraesthesia in a non-dermatomal pattern in the dorsum of the left foot. He noted an MRI scan investigation of the right sciatic nerve was assessed as normal.
Dr Nair considered that the respondent had clinical evidence of discogenic lower back pain. He recommended an MRI scan of the lumbar spine as a diagnostic aid. He was of the view that it was certainly possible that the respondent could have aggravated a low back condition in the rehabilitation process following his injury.

Dr Nair provided a supplementary report dated 9 December 2021 in response to further queries from the appellant.[49] He confirmed that the respondent had clinical and radiological evidence of L5/S1 degenerative disc disease. He referred to radiological investigation (presumably the MRI scan of the lumbar spine which was undertaken on 1 December 2021), which he said described a single level disc herniation and was reported as “minor”.
[49] Reply, pp 11–16.
Dr Nair considered that there was no clear nexus between the work-related injury and the lower back condition. He did not consider that the condition arose as a result of the injuries to the right ankle and wrists and said that there was no evidence of an altered gait. He was of the view that the disc herniation would be a common finding in a cross section of the respondent’s age group.
Dr Nair concluded that the lower back condition was more likely than not unrelated to his employment. He proceeded to assess the respondent’s whole person impairment in respect of the right ankle and bilateral wrists.

THE MEMBER’S REASONS

The Member identified that the only issue for determination was whether the respondent had suffered a condition in the lumbar spine as a consequence of his accepted injury to his right ankle. He noted that during the arbitration, the respondent had made an application to amend the cause of the condition to include “deconditioning” in addition to “altered gait.” The Member confirmed that he had rejected that application.
The Member cited various Presidential decisions that dealt with what is required in order to establish that a condition arose as a consequence of a work-related injury.[50] He observed that those authorities say that it is not necessary to show “significant” pathology and all that is necessary is to show on a common sense approach that there is a complaint in a part of the body and an unbroken chain of causation linking it with the injury. He noted that in Kumar, Roche DP made it clear that in such cases, the injured worker is not required to establish that the condition was an injury within the meaning of s 4 of the 1987 Act. He further noted that Snell DP observed in Brennan that it was not necessary to identify the pathology of the condition if the evidence was sufficient to show the connection. He added that Grantv Dateline Imports Pty Ltd[51] established that where there is tension between an allegation of consequential condition caused by an action such as overuse and there were medical opinions that the symptoms were caused by something other than overuse, it is appropriate to consider whether a diagnosis connected with the alleged cause of the consequential condition could be made out. The Member indicated that the appropriate enquiry is whether, on a common sense basis and after an evaluation of all of the evidence, the worker has discharged the onus of proof.
[50] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar); Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan).
[51] [2022] NSWPICPD 3.
The Member noted that after the respondent had undergone surgery, according to his statement, he subsequently experienced significant swelling, stiffness and weakness, was required to wear a CAM boot and then a brace and, as a consequence, relied more heavily on his left side. The Member further noted that the respondent continued to rely more heavily on his left side and began to develop increasing lower back pain, such as when he walked or sat for extended periods
The Member observed that, on examination, Dr Hassan had found evidence of foot drop and paraesthesia, which was some four months after Dr Weenink observed reduced range of motion of the right ankle and difficulty with dorsiflexion. The Member remarked that Dr Weenink’s report was largely consistent with his clinical notes, which recorded that on 8 January 2021, the respondent was continuing his rehabilitation and had consulted Dr Hassan in relation to right foot weakness.
The Member referred to the clinical entry contained in Dr Weenink’s notes made on 20 January 2021, in which lower back pain was noted. The Member observed that Dr Assem was of the opinion that the respondent’s lower back pain was caused by altered gait, which was contrary to the appellant’s position that the cause was de-conditioning, as suggested by the evidence of Dr Weenink. The Member pointed out that Dr Weenink had subsequently resiled from that opinion. He reasoned that he preferred the opinion of Dr Assem because it was consistent with the respondent’s evidence, and with the contemporaneous clinical notes which recorded stiffness, restriction of movement and foot drop on the right side. The Member concluded that those restrictions were consistent with the respondent having a persistent altered gait pattern, which gave rise to lower back pain.
The Member also referred to the records of Ms Liaros that showed that the respondent had restricted range of motion in the right ankle when he first consulted her on 17 December 2020, following which there was minimal improvement, and the respondent’s significant restrictions remained.
The Member considered that, on a common sense evaluation of the evidence, a significant restricted range of motion in the right ankle, as noted by Dr Weenink and Ms Liaros, would lead to altered gait. He observed:
“Objective findings of significant limited knee-to-wall testing, right plantar flexion limitation and the inability to carry out normal dorsiflexion plainly demonstrate a range of motion consistent with an altered gait pattern.
The [appellant] contended a reduced range of motion can be consistent with a normal gait, however, such significantly impaired dorsiflexion and plantar flexion are not, in my view, consistent with an unimpeded gait. Those movements are respectively upward and downward flexion of the forefoot, movements intrinsic to walking.”[52]
[52] Martino v DGL (Aust) Pty Limited [2022] NSWPIC 575 (reasons), [32]–[33].
The Member noted the appellant’s submission that a reduced range of motion can be consistent with a normal gait pattern. He was of the view that significantly impaired dorsiflexion and plantar flexion were not consistent with an unimpaired gait because such movements involved upwards and downwards movements which are a component of walking.
The Member further noted the appellant’s submission that there was an absence of lower back complaints in 2020, which suggested that altered gait did not cause those symptoms. He said, however, that the respondent had demonstrated limited range of motion in his right ankle throughout 2020, which was not limited to the requirement to wear a CAM boot or to the use of crutches and which led to the onset of lower back pain in late 2020 and early 2021. The Member said that there were entries throughout 2020 in the clinical notes that indicated that the respondent experienced continued altered gait. He referred to the entries on:
(a)    21 August 2020, when the respondent was referred to physiotherapy because of inability to fully dorsiflex his foot;
(b)    9 September 2020, when the respondent required treatment for his right ankle;
(c)    23 September 2020, when there were further right ankle difficulties with reduced dorsiflexion;
(d)    19 October 2020, in which weakness of the right ankle was recorded;
(e)    19 November 2020, when right foot drop was recorded, and
(f)    8 January 2021, when the respondent received treatment for the right foot drop.
The Member accepted the respondent’s submission that those difficulties produced an altered gait and said that, on a common sense basis, the respondent’s altered gait during the period immediately prior to the onset of lower back symptoms caused the consequential condition in the lumbar spine.
The Member referred to the evidence of Dr Nair and his opinion that the findings on the MRI scan were inconsistent with a work-based injury. The Member observed that this approach was not the test of whether there has been a condition consequent on a workplace injury. He said that what is necessary is that there is a determination of whether the onset of the symptoms in the lower back were be linked to the accepted injury.
The Member concluded that:
“In my view, the evidence in this matter is overwhelming. The [respondent] suffered a severe injury to his right ankle, for which he required surgical intervention. He had prolonged periods of walking on both crutches and with a CAM boot and complained throughout 2020 of favouring his left leg as a result of the injury to the right ankle. His restricted range of motion in the right ankle by way of dorsiflexion and plantar flexion in my view is consistent with an altered gait pattern, which in turn on the balance of probabilities has, in my opinion, caused the consequential condition to the lumbar spine.”[53]
[53] Reasons, [41].
The Certificate of Determination issued on 18 October 2022 records:
“The Commission determines:
1.     The [respondent] suffered an injury to his right lower extremity (ankle) in the course of his employment with the [appellant] on 4 September 2019.
2.     As a result of the injury referred to in (1) above, the [respondent] sustained consequential conditions to both upper extremities (wrists) and his lumbar spine.
3.     The [appellant] is to pay the [respondent’s] reasonably necessary medical and treatment expenses in respect of the body systems referred to in (1) and (2) above.
4.     The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following:
Date of Injury:  4 September 2019
Body Systems Claimed:       right lower extremity (ankle); bilateral upper extremities (wrists) (consequential conditions); lumbar spine (consequential condition); scarring.
Method of Assessment:        Whole person impairment
…”.

GROUNDS OF APPEAL

The appellant brings three grounds of appeal, asserting that the Member:
(a)    erred in fact in determining that there was altered gait (Ground A);
(b)    erred in law in failing to provide adequate reasons for his findings (Ground B), and
(c)    erred in law by failing to provide procedural fairness to the appellant by not dealing with the submissions made on its behalf (Ground C).

SUBMISSIONS

As to Ground A

The appellant’s submissions

The appellant refers to the decision of Roche DP in Raulston v Toll Pty Ltd,[54] in which the Deputy President summarised the principles applicable to disturbing a primary decision-maker’s findings of fact. The appellant asserts that the Member erred in fact by:
(a)    accepting that the respondent’s symptoms caused an altered gait and that the altered gait was the cause of the respondent’s consequential lower back condition;
(b)    observing that the respondent had prolonged periods when he walked on crutches and wore a CAM boot, complaining throughout 2020 of “favouring” his left leg because of the right ankle injury, and
(c)    finding that the restricted range of movement in the right ankle in respect of dorsiflexion and plantar flexion was consistent with an altered gait.
[54] [2011] NSWWCCPD 25 (Raulston).
The appellant asserts that the following evidence does not support the Member’s conclusions:
(a)    the right ankle surgery was performed on 13 January 2020;
(b)    on 12 February 2020, Dr Viswanathan reported that the respondent could “come out of his CAM boot”;
(c)    Dr Weenink recorded on 20 March 2020 that the ankle was “mostly” not painful, the respondent experienced soreness at night or when walking excessively. He noted that the respondent’s gait was normal;
(d)    Allied Health Recovery recorded on 5 April 2020 and 26 April 2020 that the respondent had no issues walking for a prolonged period of time;
(e)    Dr Viswanathan noted on 20 April 2020 that the respondent had no ankle instability, was progressing well and had excellent range of movement;
(f)    On 27 July 2020, Dr Weenink reported that the respondent’s pain was relatively well controlled following the surgery, the respondent was being treated with physiotherapy and had progressed well with occasional complaints of pain;
(g)    Dr Viswanathan advised on 4 November 2020 that the respondent had some limitation in dorsiflexion but was experiencing no pain or instability;
(h)    Dr Hassan indicated in his report dated 7 December 2020 that the respondent had not noticed any gait disturbance;
(i)    on 21 June 2021 Dr Weenink noted a normal gait and no foot drop;
(j)    Dr Assem observed on 13 September 2021 that the respondent mobilised with a normal gait, and
(k)    Dr Tuxford noted that the respondent had a normal gait on 2 December 2021 and on 8 December 2021 recorded a normal gait and no foot drop.

The respondent’s submissions

The respondent submits that, in order to consider this ground of appeal, it is necessary to identify the issue that was before the Member. He says that he suffered his right ankle injury on 5 September 2019 and first began to experience lumbar pain towards the end of 2020. The respondent says that Dr Hassan considered that the symptoms were suggestive of right sciatic nerve dysfunction and at that stage, the respondent’s gait was mostly, but not completely, normal. The respondent refers to Dr Weenink’s note in January 2021 of the development of mild low back pain. He submits that the question for the Member to determine was what had caused the lower back pain at that time.
The respondent submits that the Member correctly identified the evidence in support of the conclusion that there was restricted range of movement in the right ankle, which was present in the period leading up to the consultation with Dr Hassan, and which was recorded as being present by Dr Hassan in his report dated 7 December 2020.
The respondent says that his evidence was that throughout 2020 he continued to “overcompensate” on his left side and that evidence was consistent with the clinical records. The respondent adds that, on 17 December 2020, Ms Liaros noted restricted range of movement in the right ankle.
The respondent submits that, as a Member of a specialist tribunal, it was open to him to conclude that restricted range of movement would affect the respondent’s gait and would contribute to the development of back pain. The respondent asserts that there was no error in the Member’s approach.
The respondent adds that the reports of normal gait recorded from June 2021 and thereafter are of no relevance because the back pain developed in late 2020. The respondent submits that the only consideration is that of the condition of the ankle and its effect on his gait leading up to the onset of symptoms.
The respondent asserts that the evidence pointed to by the appellant does not show that there has been an error of fact because that evidence does not contradict the fact that there was a continuing loss of use in the right ankle which would have affected the respondent’s gait.
The respondent refers to the appellant’s submission that there was no mention of altered gait in the reports of Dr Viswanathan dated 20 April 2020 and 4 November 2020, together with the report of Dr Weenink dated 27 July 2020. The respondent submits that the reports do not say one way or another whether there was altered gait present but do record ongoing limitation of dorsiflexion and continuing treatment until the end of 2020.
The respondent concludes that the appellant has failed to identify error on the part of the Member and this ground of appeal should be dismissed.

As to Ground B

The appellant’s submissions

The appellant refers to the decision of Fleming DP in M and S Shipman Pty Ltd v Matters,[55] who observed that in order to succeed on the basis of a failure by the Member to give adequate reasons, it is necessary to demonstrate not only that the reasons were inadequate, but that the inadequacy is sufficient to show that the Member failed to exercise his or her statutory duty to fairly and lawfully determine the dispute.
[55] [2003] NSWWCCPD 19.
The appellant submits that a failure to address inconsistencies in the evidence may constitute a failure to give proper consideration to the evidence. The appellant submits that such failure may constitute an error of law, and the Member is required to engage and properly analyse that evidence in order to determine what evidence is preferred and why, citing Symbion Health Ltd v Ford[56] and Charles Sturt University v Manning[57] as authorities for those propositions.
[56] [2008] NSWWCCPD 13.
[57] [2016] NSWWCCPD 10.
The appellant submits that, in accordance with Atkins v Canada Bay Council,[58] merely summarising the evidence and not indicating whether that evidence is accepted or rejected can amount to a failure to properly determine the matter. The appellant asserts that the Member failed to give reasons for:
(a)    accepting Dr Assem’s opinion as to causation when Dr Assem recorded that the respondent’s gait was not altered;
(b)    why the Member concluded that there was altered gait when the weight of the evidence did not support that conclusion, and
(c)    not accepting that the lower back symptoms were referrable to weight gain in the context of there being no evidence, or little evidence of altered gait at the time of the onset of the lumbar symptoms, when the evidence disclosed that;
(i)on 20 January 2021, Dr Weenink recorded that the respondent had gained weight, which was probably because the respondent was not working;
(ii)on 25 March 2021, Dr Weenink noted that the respondent had put on weight as a result of physical inactivity, which led to back pain;
(iii)Dr Weenink further noted on 2 September 2021 that the respondent was referred for physiotherapy treatment for lower back pain in the context of weight gain and probable deconditioning, and
(iv)the respondent’s statement referred to gaining weight because of inactivity and that, as a result, his lower back symptoms increased.
[58] [2015] NSWWCCPD 33.

The respondent’s submissions

The respondent refers to his submission in respect of Ground A of the appeal that the Member’s determination that the respondent’s statement evidence about suffering an altered gait ought to be accepted because the evidence corroborated that he had restricted movement of the ankle throughout that time. The respondent points out that the Member made a specific finding that the clinical findings were consistent with the respondent suffering from persistent altered gait. The respondent says that the Member carefully took into account the evidence about the respondent’s right ankle during the relevant period and was not required to look to the evidence of improved gait beyond the end of 2020, as it was not relevant.
The respondent contends that the Member clearly set out the basis for his conclusion that continuing altered gait was present during the time leading up to the onset of back symptoms, and there was no need for him to provide further reasons.
The respondent asserts that the Member addressed the question of whether the respondent’s back condition was referrable to deconditioning at [29] of his reasons, where he observed that Dr Weenink had resiled from his opinion because the low back pain had persisted.
The respondent contends that, in any event, the deconditioning resulted from the work-related injury because it was attributable to the respondent’s inactivity. The respondent points to the position taken by the appellant at the arbitration that the back condition arose from deconditioning and submits that that argument would only be relevant if the deconditioning did not result from the ankle injury. The respondent asserts that the Member gave his reasons for not concluding that the back condition resulted from deconditioning and that was all that was required of him. He submits that, consistent with the decision of Roche DP in Murphy v Allity Management Services Pty Ltd,[59] the Member only had to find that the ankle injury and its effect on his gait materially contributed to the development of the back condition, and it is immaterial that it also may have resulted from deconditioning.
[59] [2015] NSWWCCPD 49.

The respondent submits that this ground of appeal should be dismissed.

As to Ground C

The appellant’s submissions

The appellant quotes several passages from the observations in various authorities in respect of:
(a)    what is required of a tribunal in dealing with the evidence before it and the distinction between failing to take into account evidence which, if accepted might have led to a different conclusion and the failure to address a contention that might have supported the applicant’s case;[60]
(b)    the kind of argument that must have been made, which, if accepted, would be capable of having an effect on the outcome,[61] and
(c)    a failure to consider an argument, which will only constitute a constructive failure to exercise jurisdiction, where the argument is substantial and capable of altering the decision.[62]
[60] DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184.
[61] CPE15 v Minister for Immigration and Border Protection [2017] FCA 591.
[62] Sarheed v C1 Formwork Group Pty Limited [2021] NSWPICPD 7.
The appellant refers to the Member’s reasoning that:
(a)    Dr Assem opined that the respondent’s back condition was caused by an altered gait pattern;
(b)    Dr Weenink resiled from his opinion that the lower back pain resulted from deconditioning, and
(c)    Dr Assem’s opinion was consistent with the respondent’s evidence and the contemporaneous clinical records, which noted stiffness, restriction of movement and foot drop.
The appellant submits that r 15.2(3) of the Workers Compensation Rules 2011 [the former equivalent rule to r 73(c) of the Personal Injury Commission Rules 2021] required that evidence based on speculation or unsubstantiated assumptions was unacceptable. The appellant refers to the requirement set out in Paric v John Holland (Constructions) Pty Ltd[63] that there must be a “fair climate” upon which an expert can base his or her opinion and a mere assertion without proof is not acceptable.
[63] [1985] HCA 58 (Paric No 2).
The appellant says that it made the following submissions to the Member about the history taken and observations made by Dr Assem which showed that his opinion was not based upon a “fair climate”:
(a)    the notation that the respondent no longer requires walking aids or supports;[64]
(b)    the observation that the respondent mobilised with a normal gait,[65] which was not subsequently contradicted in his report;[66]
(c) Dr Assem did not express reliance on any evidence that recorded altered gait when expressing his view that the lumbar pain was secondary to an altered gait pattern,[67] and
(d)    Dr Assem considered that the respondent’s condition was consistent with the injury and his employment was the main contributing factor.[68]
[64] Transcript of proceedings (T), Martino v DGL (Aust) Pty Limited [2022] NSWPIC 575, T16.3–17.2.
[65] T17.17; T17.32.
[66] T17.34.
[67] T18.22–32.
[68] T18.5–20.
The appellant submits that the Member did not respond to or engage with those submissions. The appellant asserts that the submissions were relevant and material to the proceedings and were a component of the appellant’s substantive argument in its case, so that the Member failed to engage and respond to its “substantial and clearly articulated argument”[69] that was material to the central issue in these proceedings.
[69] SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 (SZSSC), [79].
The appellant refers to the Member’s findings that:
(a)    a reduced range of motion can be consistent with abnormal gait;
(b)    significant impaired dorsiflexion and plantar flexion are not consistent with an unimpeded gait, and
(c)    dorsiflexion and plantar flexion were movements “intrinsic to walking.”[70]
[70] Reasons, [33].
The appellant submits that there was no expert opinion to support that a reduced range of movement is equivalent to an altered gait pattern and that, by failing to respond to and engage with its submissions, the Member erred by failing to address a “substantial and clearly articulated argument”[71] that was material to the central issue in these proceedings.
[71] SZSSC, [79].

The respondent’s submissions

The respondent asserts that this ground of appeal is merely a repetition of Ground B, which concerned a purported failure to give reasons for the findings made.
The respondent refers to the appellant’s submission that, by the time the respondent was assessed by Dr Assem, he no longer suffered from an altered gait, which was not the issue. The respondent says that the issue was whether there was evidence of altered gait during the time that the respondent’s back condition developed which, the respondent submits, the Member considered and concluded that there was. The respondent submits that once the Member had made his finding, that was sufficient to respond to the appellant’s submission and nothing further was required.
The respondent contends that there can be no criticism about the Member reaching the conclusion that the restriction in range of movement in the ankle was consistent with altered gait. The respondent submits that the causal connection falls within the ambit of common experience and does not require expert opinion. He adds that, in any event, the Member is a part of a specialist tribunal and was entitled to apply that expertise to interpret the evidence.
The respondent submits that this ground of appeal should be dismissed.

THE RELIEF SOUGHT

The appellant seeks to have an award entered in its favour in respect of the allegation of a consequential condition in the lumbar spine, or in the alternative, have the matter remitted to another Member for re-determination.
The respondent submits that the appeal should be dismissed.

CONSIDERATION

Ground A: The Member erred in fact in determining that there was altered gait

The respondent submits that observations about his gait made after the onset of the lower back pain were irrelevant to the question of whether his asserted altered gait pattern was causative of the onset of his lower back condition. I accept that submission.
The appellant refers to Raulston and the principles applicable in disturbing a primary decision-maker’s factual findings. A determination as to whether the respondent suffered a condition in his lower back as a result of altered gait is a factual finding and those principles apply. In Raulston, Roche DP observed:
“Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member]’s decision is wrong.”[72]
[72] Raulston, [19].
The appellant submits that the following findings were wrong:
(a)    the respondent had prolonged periods of using crutches and wearing a CAM boot;
(b)    the respondent complained that throughout 2020 he was favouring his left leg because of the right ankle;
(c)    the restrictions in the right ankle were consistent with an altered gait, and
(d)    the injury caused an altered gait and the altered gait caused the onset of lumbar symptoms.
The appellant submits that the respondent ceased wearing the CAM boot in February 2020 and by 20 March 2020 the ankle was mostly pain free and the respondent’s gait was normal. The appellant refers to the evidence of Dr Viswanathan that on 20 April 2020, there was no instability in the ankle, and the respondent had excellent range of movement. Further, on 4 November 2020, Dr Viswanathan reported some limitation in dorsiflexion but no pain and again no instability. The appellant refers to the evidence of Dr Weenink that on 27 July 2020, the respondent complained of occasional pain which was relatively well-controlled and the respondent was progressing well with physiotherapy treatment. The appellant submits that on 7 December 2020, Dr Hassan recorded that the respondent had not noticed any gait disturbance.
The Member’s observation that the respondent was required to use crutches and wear a CAM boot for a prolonged period is consistent with the evidence that those aids were provided to the respondent after the injury on 4 September 2019 and after the surgery in January 2020 until late February 2020. That is, up to some five months after the injury.
I do not consider the references to no lack of stability, or the absence of pain, were critical to the acceptance or otherwise of the respondent’s case. There were no assertions made that the alleged altered gait was caused by instability in the ankle, although the evidence discloses that on 19 October 2020, Dr Weenink discussed the respondent’s persisting right ankle “weakness” with Mr Rendeci.[73] Complaints of ongoing pain were recorded by Dr Viswanathan in his report dated 22 July 2020.[74] It is clear from the history recorded in Dr Weenink’s clinical notes (summarised above at [56]) that the respondent’s ongoing difficulties in relation to his right ankle were of notable concern to the respondent’s treatment providers. The Member referred to some of those clinical entries in his reasons.
[73] ARD, pp 339–340.
[74] ARD, p 74.
A review of Dr Hassan’s report dated 7 December 2020 discloses that he did in fact make the following observations on examination:
“Following the surgery he felt that the pain settled significantly but a couple of weeks later while doing physiotherapy he noticed right ankle dorsiflexion weakness. He also admits to painless paraesthesia in the right foot. He has not noticed any symptoms in the left lower limb or in the upper limbs. He has not noticed any gait disturbance. Since then the symptoms have been static with no degeneration or gradual improvement over time. He is not known to have any co-morbidities.
Examination: His gait is mostly normal, there may be subtle partial right foot-drop on close inspection. He has mild weakness of right ankle dorsiflexion as well as right ankle plantar flexion both grade 4+/5. The weakness of right ankle plantar flexion is best appreciated functionally by him not being able to stand on the toes of his right foot.”[75]
[75] ARD, p 54.
As the respondent submits, Dr Hassan’s observations do not indicate that the respondent had a normal gait. Further, there continued to be weakness of the right ankle as well as other persisting functional issues in the right ankle. The respondent’s limitations were described by Ms Liaros as “significant.” Dr Assem described severe flexion contracture, no power in ankle dorsiflexion and limitation in the ankle and subtalar movement. According to Dr Assem, the respondent suffered from permanent contracture of the gastrocnemius musculature with no eversion, and no active dorsiflexion of the right foot.
The clinical notes recorded by Dr Weenink between 26 June 2020 through to 8 January 2021 consistently recorded complaints of stiffness, reduced ankle range of motion, reduced dorsiflexion, ongoing weakness and right foot drop. The clinical notes reveal that, during that period, the respondent was receiving ongoing physiotherapy treatment in an effort to improve his right ankle condition.
The respondent’s evidence was that, following the injury, he relied more heavily on his left side because of his right foot injury. There is no medical or other evidence that contradicts that assertion and, given the significant pathology described in the medical evidence, such an assertion is plausible.
The Member applied a common-sense approach to the issue before him. In Hevi Lift (PNG) LTD v Etherington[76] McColl JA, with Mason P and Beazley JA (as her Excellency then was) agreeing, said that it was open to the primary decision-maker to apply common sense findings as to causation. That is, the primary judge was entitled to apply common sense and examine the sequence of events in seeking to determine whether there was a causal connection between the respondent’s employment and his injury.
[76] [2005] NSWCA 42, [89]–[91].
In Moriarty-Baes v Office Works Superstores Pty Ltd,[77] Roche DP, applying Kooragang Cement Pty Ltd v Bates,[78] also confirmed that in questions of causation in the Commission, a common sense evaluation of the causal chain is required and that each case will depend on its own facts and be determined on the evidence, including, as in this case, expert evidence.
[77] [2015] NSWWCCPD 28, [111].
[78] (1994) 35 NSWLR 452.
In a consideration of all of the evidence in this case, the evidence referred to by the appellant is not determinative and not material evidence, which, if accepted, would have resulted in a different outcome. There was no error in the approach taken by the Member in applying “common sense” in this case and his conclusion is consistent with the available evidence. This ground of appeal therefore fails.

Ground B: The Member erred in law in failing to provide adequate reasons for his findings

In order for the appellant to succeed on this ground, it must demonstrate not only that the reasons are inadequate but that their inadequacy discloses that the Member failed to exercise his statutory duty to fairly and lawfully determine the matter.[79]
[79] YG & GG v Minister for Community Services [2002] NSWCA 247.
The appellant asserts that the Member failed to give reasons for accepting Dr Assem’s opinion when Dr Assem recorded that the respondent’s gait was normal. As will be discussed under Ground C of the appeal, it was of little relevance that Dr Assem observed a normal gait in September 2021. The Member reasoned that he preferred the opinion of Dr Assem because it was consistent with the respondent’s evidence, and the contemporaneous clinical notes which recorded stiffness, restriction of movement and foot drop on the right side. There was no error in that approach.
The appellant asserts that the weight of the evidence was against the proposition that altered gait was the cause of the lower back symptoms. I accepted the respondent’s submission that evidence of normal gait recorded some time after the onset of lower back symptoms is not evidence sufficient to dispel the assertion of altered gait prior to the relevant time. I have already pointed to why an observation of normal gait in September 2021 carries no weight.
The appellant asserts that the Member failed to give adequate reasons for his finding when the weight of the evidence was against the Member’s conclusion.
The appellant points to the competing evidence as to causation that the respondent had gained weight from inactivity and suffered from deconditioning. The Member correctly identified that Dr Weenink had resiled from his view that the cause was “deconditioning.” Dr Weenink subsequently expressed the view that he no longer considered that deconditioning was the cause because, if it were, in his opinion the symptoms would have resolved within weeks of physiotherapy treatment. The observation was made by the respondent that the inactivity leading to weight gain would in any case be a consequence of the injury. In any event, the fact that the respondent attributed the onset to weight gain from inactivity, as well as asserting that it was attributable to greater reliance upon his left side, does not detract from a finding that altered gait was a material cause of the development of the condition.
The appellant asserts that the weight of the evidence was against the Member’s finding that there was altered gait. The Member cited the evidence in the clinical notes of Dr Weenink, that he relied upon in reaching his conclusion, and accepted the opinion of Dr Assem on the basis that it was consistent with those clinical notes. That evidence supported the Member’s observation that throughout 2020, the respondent had demonstrated limited range of motion in his right ankle, which was in addition to the requirement to wear a CAM boot and to the use of crutches, and which led to the onset of lower back pain in late 2020 and early 2021.
Where there is an obligation to give reasons, it is not necessary to give lengthy or elaborate reasons.[80] The Member gave sufficient reasons for rejecting the submission that the lower back pain was referrable to the respondent’s weight gain. The only medical evidence that pointed to the weight gain and inactivity as being causative was that of Dr Weenink, who, as the Member noted, later resiled from that position, providing a rational reason for doing so. Further, the Member gave sufficient reasons for accepting the evidence of Dr Assem.
[80] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, [280].
The appellant has failed to show that the Member failed to give adequate reasons for his conclusion and this ground of appeal fails.

Ground C: The Member erred in law by failing to provide procedural fairness to the appellant by not dealing with the submissions made on its behalf

The appellant says that it submitted that the opinion of Dr Assem was not founded upon a “fair climate” and should not have been accepted, relying on Paric No 2. Dr Assem took the following history:
(a)    following the injury to the right ankle, the respondent continued to experience pain and stiffness in the ankle;[81]
(b)    in an on-road driving assessment, the respondent could not pivot his ankle and was required to move his entire leg;[82]
(c)    the respondent rated his ankle pain as 10/10 which was worse after standing and walking for long periods, although he no longer required walking aids or support,[83] and
(d)    the respondent complained that he had developed lower back pain with shooting pain in his right leg as a consequence of altered gait.[84]
[81] ARD, p 22.
[82] ARD, p 22.
[83] ARD, p 23.
[84] ARD, p 23.
On examination, Dr Assem noted that:
(a)    the respondent mobilised with a normal gait;
(b)    there was an absence of eversion, and active dorsiflexion of the right foot because of permanent contracture of the gastrocnemius musculature [a major calf muscle], and
(c)    the respondent was assessed as having a severe flexion contracture, “grade 0” power in ankle dorsiflexion and limitation in the ankle and subtalar movement.[85]
[85] ARD, p 24.
Dr Assem also reviewed the radiological findings set out in the MRI scan dated 19 September 2019. He opined that the respondent developed lower back pain secondary to altered gait and should avoid standing and walking for more than 30 minutes at a time.[86]
[86] ARD, p 26.
Dr Assem assessed the respondent on 13 September 2021, some 24 months after the injury, more than 18 months after the right ankle surgery and approximately 10 months after the onset of lower back pain. During that time the respondent had undertaken rehabilitation with an exercise physiologist and extensive and prolonged treatment from a physiotherapist, aimed at improving the respondent’s physical capabilities. As the respondent submits, an assessment in September 2021 of his gait, as well as an observation that the respondent no longer requires walking aids, has little or no relevance to the question to be determined by the Member. The fact that the medical expert accepted that the respondent experienced altered gait at an earlier time does not mean that he contradicted his observation at the time of examination that the gait was normal.
The appellant submits that Dr Assem did not point to any evidence where altered gait was recorded and thus his opinion was a mere “ipse dixit”. This submission ignores the fact that the respondent provided a history to Dr Assem of experiencing what Dr Assem referred to as “altered gait” at the relevant time, described in lay terms by the respondent in his statement as relying more on “his left side”. The submission also fails to acknowledge the correct approach to expert evidence in the Commission. As explained by Beazley JA (as her Excellency then was) in Hancock v East Coast Timber Products Pty Ltd,[87] compliance with the principles governing expert evidence requires the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”[88]
[87] [2011] NSWCA 11 (Hancock).
[88] Hancock, [85].

In the Court of Appeal decision in Paric v John Holland (Constructions) Pty Ltd,[89] Samuels JA adopted a passage from a Wyoming case[90] in which it was observed that:
“there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.”[91]
[89] [1984] 2 NSWLR 505 (Paric No 1).
[90] Culver v Sekulich (1959) 80 Wyoming 437 at 458.
[91] Paric No 1, 509–510.
Dr Assem’s evidence complies with the principles set out in Hancock. The assumed fact relied upon by Dr Assem was that the respondent experienced altered gait in the period leading up to the onset of symptoms. The Member found that fact proven, taking into account the evidence from the respondent’s treatment advisers. The history garnered by Dr Assem included the history provided by the respondent that he relied more on his left side because of his right ankle injury. Dr Assem, in the context of having diagnosed significant pathology in the right ankle, formed the view that the fact that the respondent relied more on his left side caused the respondent’s lower back symptoms. It was open to the Member to accept that opinion.
The appellant submits that the Member did not engage with its submissions that Dr Assem’s opinion should not have been accepted. The appellant’s submissions were recorded in the transcript of proceedings at T16.6 to T26.30. In particular, the appellant pointed to the evidence that on the day the respondent reported his back pain to Dr Weenink, there was no reference to altered gait in the clinical note, and other causes were considered.
The Member noted the appellant’s submission that the lower back symptoms arose as a consequence of deconditioning. He quoted from the report of Dr Weenink dated 11 April 2022, in which Dr Weenink indicated that he may have been mistaken in his initial view that the lower back symptoms were probably referrable to deconditioning because the symptoms had continued beyond six weeks of physiotherapy treatment. The Member noted that Dr Weenink later resiled from his position that the cause was deconditioning.[92]
[92] Reasons, [29].
The appellant points to no other evidence, and there was none, that attributed the onset of the lower back symptoms to deconditioning, inactivity or weight gain.
The Member provided cogent reasons for accepting the opinion of Dr Assem and clearly addressed the appellant’s submission that the cause of the lower back symptoms was the deconditioning from inactivity. As the appellant submits, in order to establish error by failing to consider a submission, the kind of argument put forward must have been capable of having an effect on the outcome. That is, the argument must be substantial and capable of altering the decision. The submission raised that the Member ought not to have accepted the opinion of Dr Assem because there was normal gait in September 2021 is not a submission capable of changing the outcome in this case. Nor is the submission that the lower back symptoms arose as a consequence of deconditioning, which was a submission that had no real foundation in the evidence.
It follows that this ground of appeal fails.

CONCLUSION

The appellant has failed to establish error on the part of the Member and the appeal is unsuccessful.

DECISION

The Member’s Certificate of Determination dated 18 October 2022 is confirmed.

Elizabeth Wood
Deputy President

29 May 2023