Dick's Diesel Pty Ltd v Caddaye

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68
APPELLANT:	Dick’s Diesel Pty Ltd
RESPONDENT:	Stephen Caddaye
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2017/15
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	11 August 2015
DATE OF APPEAL HEARING:	24 November 2015
DATE OF APPEAL DECISION:	7 December 2015
SUBJECT MATTER OF DECISION:	Credit findings; relevance of failure to cross-examine; application of principles in New South Wales Police Force v Winter [2011] NSWCA 330; whether Arbitrator erred in assessment of worker’s credit; whether Arbitrator erred in finding that psychological factors played a part in worker giving inaccurate histories about prior injuries and disability; correct approach where worker has given inaccurate histories; whether bowel and bladder incontinence resulted from injury; whether effect of aggravation of degenerative changes ceased; whether Arbitrator erred in finding injury to the neck; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr P Stockley, instructed by Edwards Michael Powell Lawyers
Respondent:	Mr I Judd, instructed by Slater and Gordon
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 11 August 2015 is revoked and the matter remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.

INTRODUCTION

This appeal challenges the Arbitrator’s findings on the worker’s credit, injury, causation and entitlement to weekly compensation. For the reasons explained below, the appeal is partly successful. The result is that the Arbitrator’s determination is revoked and the matter remitted to another Arbitrator for re-determination of all outstanding issues in accordance with the reasons in this decision.

BACKGROUND

On 24 March 2014, the respondent worker, Stephen Caddaye, started work for the appellant employer, Dick’s Diesel Pty Ltd, as a temporary casual plant operator. On 2 April 2014, he was driving a “scraper” on a stretch of highway near Kempsey in northern New South Wales when it hit a pothole. Mr Caddaye alleged that the impact caused him to hit his head on the top of the cabin and caused severe pain across his hips, the bottom of his spine, and “from his lumbar spine all the way up into [his] neck”. The nature and extent of his injury/ies is disputed and is discussed further below.
The appellant’s insurer, Allianz Australia Workers Compensation (NSW) Ltd, initially accepted liability and paid compensation until 21 October 2014. In an Application to Resolve a Dispute (the Application) filed on 10 April 2015, Mr Caddaye alleged that he injured his cervical spine, thoracic spine and lumbar spine in the accident. He also alleged that, as a result of the injury to his spine, he has suffered from bladder and bowel incontinence.
The appellant has conceded that the incident caused a compression fracture at the T12 level of Mr Caddaye’s thoracic spine, and aggravated pre-existing degenerative changes in his low back. However, it disputed that Mr Caddaye injured his cervical spine (neck) in the incident and disputed that his incapacity resulted from the accepted injuries to the thoracic spine and the lumbar spine. It asserted that the effect of the thoracic spine and lumbar spine injuries had ceased by October 2014 and that Mr Caddaye’s continuing complaints were due to pre-existing degenerative changes caused by previous injuries. It also disputed that the incontinence had resulted from the injuries received on 2 April 2014, Mr Caddaye having experienced such problems in late 2009 and early 2010.
The appellant contended that, regardless of the accident, Mr Caddaye’s employment with it would have ceased on 17 April 2014 and that, as a result, the discretion in s 44C(2) of the Workers Compensation Act 1987 (the 1987 Act) should have been exercised and that Mr Caddaye’s entitlement to weekly compensation “should be $nil, or such other amount as the Commission determines”.
A Commission Arbitrator heard the matter on 29 June 2015. Neither side sought leave to call any oral evidence or to cross-examine any of the witnesses. In summary, the solicitor appearing for the appellant, Mr Wardell, submitted that Mr Caddaye could not succeed in his assertion that he injured his neck in the accident because he had told the Kempsey District Hospital on 2 April 2014 that he had not injured his cervical spine, his statement (dated 17 November 2014) made no mention of neck pain, and Dr Hopcroft (orthopaedic surgeon qualified by Mr Caddaye’s solicitor) had not explained what had happened to the neck in the incident and had an incomplete history of Mr Caddaye’s previous injuries.
Mr Wardell conceded that Mr Caddaye suffered a compression fracture to T12 in the accident, but argued that, given Mr Caddaye’s extensive history of previous back and other problems, about which he had not been honest, Mr Caddaye could not discharge the onus of proving that any incapacity after 21 October 2014 resulted from the injury or injuries received on 2 April 2014. Mr Wardell contended that Mr Caddaye’s failure to disclose fully the severity and duration of his previous injuries raised a serious credit issue.
Mr Caddaye’s previous injuries included, but were not limited to, injuries to his arm, elbow, shoulder(s), left ankle, head, lumbar and thoracic spines, and head in a motorbike accident on 24 June 2000, a neck injury in a motor vehicle accident on 8 May 2007, a tibial plateau fracture of his left knee and back injury on or about 15 July 2009 and an episode of back pain with sciatica in November 2009. He had made extensive complaints about, and received treatment for, his back over several years, but in particular, in the second half of 2013 and in early 2014. Further, he had applied for a Disability Support Pension in early 2014, which application was rejected.
In an oral decision, delivered on 5 August 2015, the Arbitrator found in favour of Mr Caddaye on all issues. Consistent with the Arbitrator’s findings, the Commission issued a Certificate of Determination on 11 August 2015 in the following terms:
“1.That the Respondent pay to the Applicant weekly compensation in accordance with the Respondent’s Wages Schedule filed on 22 July 2015 pursuant to s. 37 of the Workers Compensation Act 1987 (the 1987 Act) as amended:
(a)     from 22.10.2014 to 02.04.2015 at the rate of $1184.84;
(b)     from 03.04.15 to date at the rate of $964.22.
2.     Such payments to continue in accordance with the Acts.
3.That the Respondent pay the Applicant’s section 60 of the 1987 Act expenses in respect of injury to the cervical; thoracic; and lumbar spine on production of accounts/receipts.”
Save for the findings that Mr Caddaye suffered a compression fracture at T12 and an aggravation of the degenerative changes in his lumbar spine, the appellant has challenged the whole of the Arbitrator’s determination.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     relying on the absence of cross-examination of Mr Caddaye for the purposes of assessing Mr Caddaye’s credit when the appellant’s documentary case had placed Mr Caddaye on notice that his credit would be challenged (absence of cross-examination and credit);
(b)     finding injury to the neck when there was no evidence or adequate evidence to explain Mr Caddaye’s initial denial of the injury and subsequent failure to report the injury for an extended period, there was no evidence or no adequate evidence of the mechanism of injury as found by the Arbitrator, and by relying on interpretations of medical reports that were not open (injury to the neck);
(c)     finding that Mr Caddaye’s bladder and bowel problems resulted from the injury on 2 April 2014 by relying on evidence from Dr Hopcroft, whose opinion was based on incorrect assumptions and did not provide any or any proper analysis or reasoning in material respects, by failing to consider radiological evidence that did not support Dr Hopcroft’s conclusion, and failing to consider evidence from Mr Caddaye’s general practitioner that the incontinence issues were temporary (the bladder and bowel problems);
(d)     finding that Mr Caddaye’s back condition resulted from the injury on 2 April 2014 by relying on the evidence of Dr Hopcroft, whose opinion was based on incorrect assumptions and did not provide any or any proper analysis or reasoning in material respects, by failing to consider or have regard to relevant evidence, and by failing to give any or any adequate reasons for rejecting the evidence of the appellant’s experts (whether Mr Caddaye’s back symptoms are causally related to the injury on 2 April 2014);
(e)     finding that Mr Caddaye’s incapacity resulted from the injury on 2 April 2014 by relying on the evidence of Dr Hopcroft, whose opinion was based on incorrect assumptions and did not provide any analysis or reasoning in material respects, and by finding that Mr Caddaye was capable of heavy employment prior to the injury in the absence of any evidence and contrary to the evidence (whether Mr Caddaye’s incapacity is causally related to the injury on 2 April 2014);
(f)      finding that Mr Caddaye was and is totally incapacitated as a result of the injury on 2 April 2014 by relying on the evidence of Dr Hopcroft, whose opinion was based on an incorrect assumption and did not provide analysis or reasoning in material respects, by relying on a medical certificate from Dr Shilton (the treating general practitioner) to support a finding as to the continuation of symptoms that was not open, and by failing to give any or any adequate reasons for rejecting the evidence from the appellant’s experts (finding of total incapacity as a result of the injury on 2 April 2014), and
(g) failing to consider the appellant’s submissions in relation to average weekly earnings and/or failing to exercise the discretion provided by s 44C(2) of the 1987 Act (s 44C(2)).

ABSENCE OF CROSS EXAMINATION AND CREDIT

The Arbitrator’s reasons

Dealing with this issue, the Arbitrator said, at T23.6:
“Now first of all on the credit issue, I do note that there was no application to cross-examine Mr Caddaye, so to raise credit in submissions was I think a little belated and in any case, I also note that Mr Caddaye has certainly been open about the motor vehicle accident. Dr Drummond [orthopaedic surgeon qualified by the insurer] has taken a fairly comprehensive history of previous back problems.”
After referring to the incontinence issue, discussed later in this decision, the Arbitrator continued, at T23.25:
“So it is not unusual for an injured worker, in the Commission’s experience, to emphasise the effects of an injury as a natural tendency to focus on the pain and that to make a distinction between the symptoms before and after, where there is a pre-existing condition. When there is a dramatic increase in the symptoms. This is especially so when the worker is experiencing the pain, it is difficult to look at it objectively and we see that there is emphasis on the pain and that sometimes pain syndromes, illness behaviour. But there is no doubt on the evidence I have been through that the effects of the injury from 2 April 2014 have been significant and these will be discussed further. But while some elements of the history provided by Mr Caddaye are inaccurate, I do not find him to be in any way dishonest but merely affected by the distress of symptoms, which have had a psychological effect on the evidence.”
After considering Dr Hopcroft’s evidence about the neck injury, considered below, the Arbitrator said, at T24.33:
“So it is highly usual that the focus was on the main injury at T12. This is obviously the source of the symptoms to a large extent for Mr Caddaye and when the [sic] injuries to two body parts or two segments of the spine, one is worse than the other, it is quite natural that the focus is on the worst segment, both by the injured party and by the treaters, doctors treating the issue. Sometimes these things can be overlooked for some time and I think this is one of those situations.”

Submissions

The appellant submitted that the Arbitrator erred “insofar as he relied on the absence of cross-examination when assessing [Mr Caddaye’s] credit”.
It was conceded that Mr Wardell had not sought leave to cross-examine Mr Caddaye, but the appellant submitted that it was not necessary to cross-examine a witness in circumstances where documents exchanged between the parties before the commencement of the hearing gave adequate notice that a witness’s account of events would be challenged (New South Wales Police Force v Winter [2011] NSWCA 330 at [81] (Winter)). The appellant contended that the s 74 notice dated 12 May 2015 sought to challenge Mr Caddaye’s credit because of omissions in the histories he provided to various doctors.
The appellant contended that the Arbitrator should not have found Mr Caddaye to be a credible witness by virtue of, among other things, his failure to disclose a complete history of his previous injuries. The appellant referred, in particular, to:
(a)     the Motor Accident Personal Injury Claim form (the motor accident claim form) dated 15 July 2014, in which Mr Caddaye declared that, prior to the accident on 2 April 2014, he had not sustained any injuries, disabilities or illness to the same parts of his body as those injured on 2 April 2014;
(b)     Mr Caddaye’s statement (of 17 November 2014) did not refer to any pre-injury medical or claims history, other than to the arm, elbow, shoulder(s) and left ankle, and denied previous incontinence issues of any kind, and
(c)     the fact that it was only after the service of the s 74 notice dated 12 May 2015 that Mr Caddaye’s solicitors attempted to propose a more complete history to Dr Hopcroft. Dr Hopcroft did not re-examine Mr Caddaye for the purposes of his later report and there was no evidence from Mr Caddaye to explain the omissions (in the history to Dr Hopcroft) or to provide direct evidence of the full history.
In contrast, the appellant submitted that the full history confirmed significant previous injuries and relevant medical issues.
The appellant submitted that there was no evidence that Mr Caddaye had “overlooked” the past history, as the Arbitrator had asserted. The appellant said that Mr Caddaye gave no evidence on this issue and it appeared that the Arbitrator simply adopted Dr Hopcroft’s statement “in this regard”. (Dr Hopcroft’s evidence, given in his second report, and quoted by the Arbitrator at T8.22, was that several significant items in Mr Caddaye’s past history had been “overlooked” by Mr Caddaye (in the first report) and those issues had to be addressed). The appellant argued that the Arbitrator’s statement was made on the basis of supposition or conjecture and did not form a proper basis for his finding.
The appellant added that evidence from Dr Licina, Mr Caddaye’s treating neurosurgeon, that Mr Caddaye’s complaints were somewhat out of proportion to the fracture and the notation in the clinical notes of Dr Mondia, general practitioner, on 7 November 2014 that Mr Caddaye “walks with 2 canes but seems to be quick and comfortable to stand and walk” were relevant to the issue of credit.
The appellant argued that the Arbitrator incorrectly found that Dr Drummond had taken a “fairly comprehensive history of previous back problems” (T23.11) and used it as a factor in favour of Mr Caddaye on the issue of credit. In fact, so it was contented, Mr Caddaye only revealed to Dr Drummond a history of injuries to the right humerus, left ankle and a rib as a result of the motorbike accident in 2000, Scheuermann’s disease, requiring osteopathic and physiotherapy treatment, and soreness of the back treated with Nurofen and anti-inflammatory medication.
It was contended that the Arbitrator misconstrued Dr Drummond’s reference to Mr Caddaye suffering “severe back pain” on 28 October 2013 as a voluntary disclosure by Mr Caddaye. In fact, in context, Dr Drummond was paraphrasing the documentary evidence provided to him by the insurer.
The appellant submitted that these omissions (from the histories) cannot be construed as an oversight, as the Arbitrator construed them, and that the overwhelming inference is that the history was deliberately not disclosed for the purposes of this claim and that this finding should have been made. It was contended that the incontrovertible facts and uncontested evidence established that the Arbitrator’s credibility assessment was based on findings that were wrong (Fox v Percy [2003] HCA 22; 241 CLR 118 at [29]) and that the Arbitrator should have viewed Mr Caddaye’s credit with a “considerable degree of caution rather than accepting it without reservation”.
Mr Caddaye contended that his case was that, as a result of the head injury received in the motorbike accident in 2000, he has an impaired memory, that as much material as could be sent was sent to Dr Hopcroft by letter dated 14 May 2015, and the documents that referred to the problems in late 2013 and early 2014 did not come to light until late in the proceedings and Dr Hopcroft did not see them. In the circumstances, there was no intention to deceive or mislead the examiners. There was no doubt that Mr Caddaye has a degenerate back, much of which has come from the motorbike accident in 2000. He reiterated a point made at the arbitration, namely that the motor accident claim form disclosed the claim number and all relevant material about the motorbike accident.

Discussion and findings

It may be accepted that it is not necessary to formally cross-examine a witness before that witness’s credit may be attacked (Winter). However, I do not accept that the Arbitrator used the absence of cross-examination as a basis for not making an adverse credit finding against Mr Caddaye. He merely observed, correctly, that Mr Wardell made no application to cross-examine and that to raise credit in submissions was “a little belated”.
The Arbitrator did not suggest, either in his decision or at the hearing, that Mr Wardell was not entitled to attack Mr Caddaye’s credit. At the hearing, counsel for Mr Caddaye, Mr Judd, objected to Mr Wardell’s submissions going to credit. The Arbitrator did not uphold that objection, but said that Mr Judd had a right of reply (T22.3 – 29 June 2015). Mr Wardell continued his submissions on Mr Caddaye’s credit and the Arbitrator addressed that issue in his decision. The relevant challenge under this heading is that the Arbitrator’s findings on the credit issue involve several errors. This challenge has some merit and warrants closer examination.
The Arbitrator’s statement that Mr Caddaye had been “open about the motor vehicle accident”, which I have taken to be a reference to the motorbike accident in 2000, was not entirely accurate. Mr Caddaye had disclosed the occurrence of the motorbike accident. However, the appellant’s complaint is that, in the motor accident claim form, Mr Caddaye declared that he had not previously had any injuries, disabilities or illness to “the same part(s) of [his] body”.
The motor accident claim form did not identify the parts of the body said to have been injured on 2 April 2014, but the attached medical certificate referred to the T12 fracture and to clinical findings of severe back pain and urinary retention and incontinence. As Mr Caddaye had previously suffered from pain in his lumbar spine and his thoracic spine, it was wrong to say that he had not previously had any “injuries, disabilities or illness” to the same part of his body. Though Mr Wardell addressed on this issue, other than to say that Mr Caddaye was “open about the motor vehicle accident”, the Arbitrator did not refer to Mr Caddaye’s failure to disclose his previous back symptoms in the motor accident claim form. This was a matter relevant to Mr Caddaye’s credit and the Arbitrator erred in not addressing it.

The Arbitrator’s statement that Dr Drummond took a “fairly comprehensive history of previous back problems” involved no relevant error. Under “Past History”, Dr Drummond recorded:
“A motorbike accident in 2000. The injuries were a fracture of the right humerus requiring surgery. A fracture of the left ankle requiring surgery. Fracture of a rib.
There is a past history of Scheuermann’s disease. He has sought osteopathic and physiotherapy treatment from 2001.
Previous soreness in the back he has treated himself with over the counter Nurofen or anti-inflammatory preparations.
28 October referred by Dr Sarah Nunn to a neurosurgeon at RBWH ‘of all the injuries the severe back pain is affecting quality of life and may require orthopaedic referral’.”
The passage quoted by Dr Drummond is from the clinical notes produced by the Isis Medical Centre where Mr Caddaye had received treatment before his injury. It did not matter whether that part of the history came from Mr Caddaye or from the documents sent to him by the insurer. The point the Arbitrator made was merely that Dr Drummond had a “fairly comprehensive history of previous back problems”. He did not suggest that it was a complete history. Clearly, it was not. There is nothing in Dr Drummond’s report to suggest that Mr Caddaye gave a misleading account to the doctor. Indeed, there is nothing to suggest that Dr Drummond made any particular enquiries about Mr Caddaye’s prior history. In the circumstances, the Arbitrator’s comment involved no relevant error.
The Arbitrator’s next observations, quoted at [13] above, are more problematic. It was open to the Arbitrator to find that the effects of the injury on 2 April 2014 were “significant”. Those effects, which included, at the least, the compression fracture at T12, have been well documented and need not be repeated.
The statement by the Arbitrator that some elements of Mr Caddaye’s history were inaccurate (or incomplete) was also correct. Those inaccuracies included the incorrect statement in the motor accident claim form, the absence of any reference to prior back symptoms in Mr Caddaye’s statement of 17 November 2014, the denial (in his statement) of previous incontinence issues, the history to Dr English (orthopaedic surgeon qualified by the appellant’s solicitors) in which Mr Caddaye denied any previous back problems prior to 2 April 2014 other than occasional muscular pains, and the absence of any history of prior symptoms in Dr Hopcroft’s first report.
The difficulty is with the Arbitrator’s explanation for the inaccuracies in Mr Caddaye’s evidence. His statement that Mr Caddaye was “merely affected by the distress of symptoms, which have had a psychological effect on the evidence” (T24.5) was not supported by any reference to the evidence. I note that Mr Caddaye gave evidence that he had attended on Dr Samuel, psychiatrist, at the request of the insurer, and that there is no report in evidence from that doctor. Mr Caddaye said that he continues to experience “psychological strain on a daily basis”, which was exacerbated by the physical pain he was in. However, there is no evidence that psychological factors played a role in Mr Caddaye giving an inaccurate history and the Arbitrator erred in suggesting that they did.
I note, in passing, that there is evidence that Mr Caddaye suffered a closed head injury in the 2000 motorbike accident and that that injury has caused memory impairment. That evidence is in a report from Darron Kearse, psychologist, dated 20 December 2013, and written “for the purpose of guiding Social Security Law”. Testing by Mr Kearse suggested that Mr Caddaye might experience difficulties with memory retention, recalling recent events and learning new tasks. Neither the parties nor the Arbitrator referred to this report at the arbitration, though it was the subject of submissions at the oral hearing of the appeal.
The next challenge under this heading is to the Arbitrator’s statement that when there are injuries to two body parts, it is “quite natural that the focus is on the worst segment” and that “[s]ometimes these things can be overlooked for some time and I think this is one of those situations”. Based on the context of the Arbitrator’s statement, namely Dr Hopcroft’s consideration of the neck injury, I have assumed that when the Arbitrator referred to “things” being “overlooked” he was referring to the lack of complaint of neck symptoms until 30 June 2014. (On that day, Mr Caddaye saw Elena Yusim, psychologist, who recorded that Mr Caddaye felt that something was “terribly wrong and is not being located”. This comment appears to relate to his thoracic spine. However, she added, “his neck has been injured but [he] feels this has not been investigated”. It is accepted that this was the first reference to the neck having been injured on 2 April 2014.)
While it may be accepted that the thoracic spine injury was the more serious injury, and that this (and back pain in general) was the focus of attention in the first few months after the accident, the evidence does not support a conclusion that, because of the thoracic spine injury, either Mr Caddaye (or any of the medical experts) “overlooked” the neck injury.
The evidence from Kempsey District Hospital is conveniently summarised in a document headed “Discharge Referral Note”, printed by Dr Tim Platt on 3 April 2014. The note includes a history of the incident and a record that Mr Caddaye had “[i]mmediate pain in lower back and abdomen, as well as initial numbness to both legs, which was transient (a few seconds)”. Mr Caddaye was able to walk, but was “haunched [sic] with ongoing mid-lower back pain and abdominal pain”. He was unable to stand at triage and lay flat on the ground.
The note added that Mr Caddaye complained of ongoing pain in the “mid-lower back” and lower abdomen, but there was “[n]o neck injury as per patient” (emphasis added). In other words, it is clear that Mr Caddaye told the hospital staff that he had not injured his neck. On examination, there was “nil c spine tenderness”. I have interpreted this note to mean nil cervical spine tenderness. Further, Mr Caddaye walked into the (emergency) department “moving [his] neck freely”. The note added, “cspine [sic] injury not thought relvatn [sic] with history. – caoller [sic] not applied”.
Given this evidence, which Mr Caddaye did not challenge or attempt to explain, it was not open to the Arbitrator to say that the injury to the neck was “overlooked” and he erred in doing so. It was not overlooked. The hospital staff clearly considered the possibility of an injury to the cervical spine but based on Mr Caddaye’s statements, and the findings on examination, considered that none had been sustained.
Mr Caddaye’s submission that the head injury from 2000 caused him to have an impaired memory may well have substance. The difficulty is that there is no direct evidence that the impaired memory from that injury contributed to the inaccurate histories. Those inaccuracies are simply not addressed in the evidence. It may well be that, as Mr Caddaye submitted on appeal, there was no intention to deceive or mislead the examiners. However, in the absence of evidence addressing the issue, it is impossible to reach any informed conclusion about it. The fact that Mr Caddaye disclosed the occurrence of the motorbike accident, something he relied on at the arbitration and reiterated on appeal, does not address the significant inaccuracies noted above.
In light of Mr Kearse’s evidence, I do not accept the appellant’s submission that the overwhelming inference is that Mr Caddaye’s history was “deliberately not disclosed for the purposes of this claim and that is the finding that should have been made”. As Mr Caddaye’s credit was and is a central issue in the case, said to affect the assessment of several (but not all) of the other issues in dispute, it follows that the Arbitrator’s errors require that the case be re-determined.
Given the potential importance of Mr Caddaye’s credit to the outcome of the case, and given the lack of evidence properly addressing the inadequate histories, I believe the appropriate and fair course is for the matter to be remitted to a different Arbitrator for re-determination. This will enable both parties to address the significant deficiencies in the evidence.
It is important to remember that, even if it is found that Mr Caddaye’s histories were deliberately false, that does not automatically lead to the rejection of his case. It merely means that the balance of the testimony calls for careful assessment to determine whether it can be properly accepted (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117).

INJURY TO THE NECK

The evidence and the Arbitrator’s reasons

Dr Hopcroft’s evidence about the neck injury, which the Arbitrator quoted from T12.11, was that the MRI scan of the cervical spine dated 5 March 2015 concluded:
“degenerative cervical spondylosis with mild thecal sac narrowing at C5/6. There was no obvious cord compression. Compression of bilateral C6 and left C7 nerve roots as described. There is indentation of the right C4 nerve root due to moderate foraminal narrowing. Mild facet joint arthropathy throughout the cervical spine.”
He said that Mr Caddaye had obviously aggravated a pre-existent, virtually asymptomatic, cervical spondylitic condition from the work related accident on 2 April 2014 and required several approaches in the treatment of that condition. He recommended that, initially, Mr Caddaye have intermittent traction and mobilisation.
Failing any improvement in Mr Caddaye’s neck pain, and radiculopathy affecting the upper limbs, Dr Hopcroft felt that Mr Caddaye was a candidate for a neurosurgical review and perhaps even neurosurgical intervention, taking into account the very significant nerve root compression pathology that was clearly defined at several levels of his neck, “which has doubtlessly been significantly aggravated by the vertical compression forces through his head as it hit the roof of the cabin of his vehicle”.
The Arbitrator also referred to the evidence from Dr English. Under “Opinion”, Dr English wrote:
“In summary, it would appear that Mr Caddaye has aggravated pre-existing degenerative change within his cervical, thoracic and lumbar spine and sustained a crush fracture of T12 vertebra with approximately 30% loss of anterior vertebral body height. Significant overstatement would appear to be present with repetitive denial of any pre-existing back problems of any sort which differs markedly from the record.”
Dealing specifically with the cervical spine, Dr English said that Mr Caddaye “may have temporarily aggravated degenerative change within the cervical region” but no lasting injury to the cervical spine was diagnosed. This opinion was based on a history that Mr Caddaye hit his head twice on the roof of the cabin when the scraper hit the pot hole on 2 April 2014, a complaint from Mr Caddaye that he had (at the time of examination) pain from the coccyx to the neck, varying between six and eight out of 10, and an examination of the radiological reports.
The Arbitrator also referred to the evidence from Dr Korber, which was that the changes in the cervical spine are degenerative with no evidence of focal disc herniation or disc protrusion or any laterality of disc herniation.
The Arbitrator dealt with the neck injury at T24.9:
“As far as injury to the neck is concerned, Mr Caddaye did not complain of neck symptoms at the time of the incident and in fact answered in the negative about the neck. There is no mention of the neck in Mr Caddaye’s statement until the last page. He says he told Dr Drummond that the pain went from the neck down the whole spine. There is a history in the clinical notes of a whiplash injury in 2007 and however, that appears to have resolved because there were no further mentions until some months after that incident.
Dr Hopcroft considers that the neck was injured on 2 April 2014 and no doubt that is based on the mechanism of injury, as [Mr Caddaye] submits. The mechanism of injury was of the head hitting the roof of the machine and the shock being transmitted down the spine causing damage further down. And the submission is that it is difficult not to accept that the injury to the neck, given that mechanism of injury, and I tend to agree with that on a common sense level that if the adjacent segments of the spine were injured, it is certainly logical that there would be some effect on the neck above.”
The Arbitrator then made the statements (at T24.33) quoted at [14] above, which it is convenient to reproduce here:
“So it is highly usual that the focus was on the main injury at T12. This is obviously the source of the symptoms to a large extent for Mr Caddaye and when the [sic] injuries to two body parts or two segments of the spine, one is worse than the other, it is quite natural that the focus is on the worst segment, both by the injured party and by the treaters, doctors treating the issue. Sometimes these things can be overlooked for some time and I think this is one of those situations.”
He then added, at T25.9:
“I accept the opinion of Dr Hopcroft as the injuries to the neck is [sic] reported on 24 April 2015, which I quoted from at length, is convincing, persistent and not affected by any inaccurate history. That is to the cervical spine. And it is also consistent with Dr Korber’s opinion, who has commentary on the imaging.
Dr English for the respondent accepts that the neck has been affected, the underlying condition being aggravated, although he does say there is no lasting effect.
Given the mechanism of injury and the other reasons I have given, I accept, as I say, Dr Hopcroft and find that Mr Caddaye suffered injury to his cervical spine in the course of his employment with the respondent on 2 April 2014 in the form of the aggravation of underlying degenerative changes.”

Submissions

The appellant made the point that there is no evidence that Mr Caddaye failed to mention neck pain because he was distracted by severe thoracic spine pain. It added that an occasional omission on this ground would be possible, but an omission over an extended period would be unlikely.
The appellant submitted that there was no basis for the Arbitrator to find that Dr Hopcroft’s opinion, in relation to injury to the neck, was “consistent with Dr Korber’s opinion”. It was contended that Dr Korber, a specialist radiologist, merely stated that the radiological changes in the cervical spine are degenerative and that there was no evidence of focal disc herniation or disc protrusion.
The appellant contended that there was no evidence of Mr Caddaye striking his head on the roof of the cabin until after he consulted with his solicitor (which was prior to 30 June 2014). It referred to the evidence that Mr Caddaye was wearing a lap seat belt, which it said the Arbitrator did not properly consider.
The appellant submitted that there is no expert evidence to support the Arbitrator’s conclusion that an injury to the thoracic spine will also cause injury to adjacent structures and that such a conclusion is not within “the realm of common knowledge and experience” that would enable an Arbitrator or Presidential member to rely on commonsense to make this finding (Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62 (Brasz)), particularly when the evidence established that the cervical spine was already in a weakened state.
The appellant said that the Arbitrator’s reference to the history provided by Mr Caddaye to Dr Drummond, that the pain went from “the neck down the whole spine” was plainly wrong because Dr Drummond’s history was that Mr Caddaye “felt lower lumbar back pain which radiated proximally up to his neck”. It said that, in either case, there was no evidence of a discrete injury to the neck.
The appellant contended that the first mention of a neck injury was on 30 June 2014, after Mr Caddaye had consulted his solicitors, and that there was no proper basis for the Arbitrator to find either that Mr Caddaye struck his head on the roof of the cabin or that he suffered injury to his neck on 2 April 2014. This submission was based on the fact that Mr Caddaye did not mention his neck until 30 June 2014, though he had several opportunities to do so in various medical examinations, and he gave a specific history of not suffering a neck injury on his admission to Kempsey District Hospital.
Last, based on the above matters and on the lack of complaint of neck symptoms until 30 June 2014, the appellant submitted that the Arbitrator should have found that Mr Caddaye suffered no injury to his neck.
Mr Caddaye conceded the content of the notes from Kempsey District Hospital. He referred to the history recorded by Dr Licina, in a report dated 17 June 2014 addressed to Dr Mondia, to the effect that he “was jarred significantly and had numbness from the waist down” and Elena Yusim’s evidence on 30 June 2014, referred to at [35] above, that he had been thrown up into the roof, fell to the floor and had no feeling below his belly button, and that Mr Caddaye said his neck had been injured but not been investigated. Therefore, within three months, there was a recorded complaint of neck symptoms from the accident on 2 April 2014, with consistent complaints after that time.

Discussion and findings

I accept that, based on the evidence from Kempsey District Hospital, the evidence does not support a conclusion that the neck symptoms were “overlooked”. However, that does not mean that the neck injury must fail.
The submission that there was no basis to find that Dr Hopcroft’s opinion, in relation to the injury to the neck, was consistent with Dr Korber’s opinion raises a question of interpretation of the Arbitrator’s reasons quoted at [52] above. There are two interpretations open. The Arbitrator may have meant that the doctors agreed on the nature of the condition in Mr Caddaye’s neck. That is, that he has degenerative changes in his neck. This interpretation was open and consistent with the evidence.
In the alternative, the Arbitrator may have meant that Dr Hopcroft and Dr Korber agreed that Mr Caddaye suffered an aggravation of those degenerative changes in the incident on 2 April 2014. This conclusion was not open. That is because Dr Korber expressed no opinion on whether Mr Caddaye suffered any injury to his cervical spine on 2 April 2014.
Given the context of the Arbitrator’s statement that Dr Hopcroft’s evidence was “consistent with Dr Korber’s opinion”, namely, coming immediately after the Arbitrator said that he accepted Dr Hopcroft’s opinion “as to the injuries to the neck”, the better view is that the Arbitrator thought that Dr Korber agreed with Dr Hopcroft that the incident on 2 April 2014 aggravated the degenerative changes in Mr Caddaye’s cervical spine. That was an error. Dr Korber did not give that evidence. He merely commented on the findings in the radiological examinations. The relevance of this error is discussed below.
The submission that there is no evidence that Mr Caddaye struck his head on the roof of the cabin until after he saw his solicitor appears to be correct. However, it is unclear how that submission is relevant to establishing error by the Arbitrator. It was not suggested, either at the arbitration or on appeal that, as a result of seeing his solicitor, Mr Caddaye made up the allegation that he hit his head. Mr Wardell made no submission about when Mr Caddaye first sought legal advice, or about when he first complained of hitting his head and, as those matters could have been met by calling further evidence, they cannot be raised for the first time on appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally)).
The submission that the Arbitrator did not properly consider the evidence that Mr Caddaye wore a lap seat belt, with the inference being that, as Mr Caddaye wore a seatbelt, he could not have hit his head, is based on the false premise that that argument was raised at the arbitration. Mr Wardell presented no such argument. He submitted, at T16.28 on 29 June 2015:
“The first issue is whether or not [Mr Caddaye] in fact suffered injury to his neck in this incident. Mr Judd seems to be suggesting to you that he must have had a neck injury, because his head hit the roof of the machine. That – that does not necessarily follow, and indeed the very fact that he suffered a compression injury at T12 would suggest that although force might have gone through the [0:27:55] through the spine, the damage that it was doing was happening at T12 and indeed lower, where there does seem to have been some aggravation of low back problems.”

Mr Wardell made no submission that wearing a seat belt made it impossible (or even unlikely) that Mr Caddaye hit his head on the roof of the cabin. It follows that, in looking at the mechanism of injury, it was not necessary for the Arbitrator to consider the relevance of the evidence that Mr Caddaye wore a seat belt.
At the hearing of the appeal, the appellant conceded that Mr Wardell had not argued that, because he wore a seat belt, Mr Caddaye could not have hit his head. However, it sought leave to argue that point on appeal. As the matter will be re-determined in any event, that issue is now redundant. As no proper basis was advanced for allowing the point to be raised for the first time on appeal and as Mr Caddaye could have met the point by calling further evidence, leave would have been refused. The Commission has repeatedly pointed out that arbitrations are not a dress rehearsal and appeals are not a rehearing. It was not open to the appellant to argue that the Arbitrator erred in not dealing with an issue never argued.
The next complaint relates to the absence of expert evidence to support the Arbitrator’s conclusion that an injury to the thoracic spine will also cause injury to adjacent structures. The difficulty with this submission is that the Arbitrator merely observed that he “tend[ed]” to agree with the submission made by Mr Judd that, on a commonsense level, if the adjacent segments of the spine were injured it was logical that there would be some effect on the neck above. This statement was in the context of the Arbitrator’s acceptance of the mechanism of injury, namely, Mr Caddaye striking his head on the cabin roof, and “the shock being transmitted down the spine causing further damage further down”. Therefore, it played little, if any, role in his conclusion and can be put to one side.
The fact that Mr Caddaye’s cervical spine may have already been in a weakened state does not assist the appellant. Employers take their employees as they find them (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40] (Chemler)). If Mr Caddaye’s cervical spine was in a weakened state prior to 2 April 2014, that makes it all the more likely that, on the balance of probabilities, striking his head on the roof of the cabin would cause an aggravation of the degenerative changes in his cervical spine, as the Arbitrator found.
The appellant’s next point is that the Arbitrator was plainly wrong in relying on a history provided to Dr Drummond that Mr Caddaye’s pain went from the neck down the whole spine when Dr Drummond recorded that Mr Caddaye felt lower back pain which radiated proximally up to his neck. This point involves a misreading of the Arbitrator’s reasons.
The Arbitrator recorded that Mr Caddaye said, at the end of his statement, that he told Dr Drummond he had “soreness going up and down [his] whole spine from [his] neck down to [his] lower buttocks and across [his] hips to both sides” (T8.15). The Arbitrator said, in his analysis of the evidence, that “[Mr Caddaye] says he told Dr Drummond that the pain went from the neck down the whole spine” (emphasis added) (T24.13).
The Arbitrator’s quote from Mr Caddaye’s evidence was broadly accurate. The difficulty is that the passage quoted by the Arbitrator was taken out of context. On his evidence, Mr Caddaye made the statement quoted by the Arbitrator when Dr Drummond asked him, at the examination on 5 August 2014, to point out the one point of soreness in his spine. Mr Caddaye’s evidence was that he did not have one point of soreness, as he had soreness up and down his whole spine from his neck down to his lower buttocks and across his hips.
However, this error makes no difference to the outcome. Earlier in his statement, Mr Caddaye said, when talking about the symptoms he felt when the scraper hit the pothole, that the pain “was across [his] hips and the bottom of [his] spine, and shot from [his] lumbar spine all the way up into [his] neck”. This was different to the later passage in his statement, but consistent with the history recorded by Dr Drummond.
Regardless of what Mr Caddaye told Dr Drummond, with regard to whether the pain radiated from the neck down or from the lumbar spine up, the Arbitrator found that Mr Caddaye injured his neck because he accepted Dr Hopcroft’s evidence, Dr English supported that claim, and because of the mechanism of injury (Mr Caddaye striking his head on the roof of the cabin). In other words, the point is of no consequence to the Arbitrator’s findings.
The submission that there was no proper basis for the Arbitrator to find that Mr Caddaye struck his head on the cabin roof has overlooked Mr Caddaye’s evidence, which the Arbitrator accepted and, as previously noted, has ignored the fact that Mr Wardell never argued that Mr Caddaye did not strike his head. As the matter must be re-determined, it is not necessary to determine if the Arbitrator was correct to accept Mr Caddaye’s evidence on this point.
The submission that there is no evidence of a discrete injury to the neck is correct, if it is meant that there is no evidence of a fracture or other specific trauma. Apart from referring to pain shooting from his lumbar spine up to his neck, Mr Caddaye gave no evidence in his statement that he injured his neck on 2 April 2014. As previously noted, the records from Kempsey District Hospital are to the opposite effect. They clearly record that Mr Caddaye felt that he had not injured his neck.
Last, the submission that the Arbitrator should have found that Mr Caddaye suffered no injury to his neck and, by inference, erred in not doing so, has some merit. It is based, in particular, on the records from Kempsey District Hospital, where Mr Caddaye denied having injured his neck, and on the absence of a complaint of neck symptoms until 30 June 2014.
Prior to this consultation with Ms Yusim on 30 June 2014, Mr Caddaye had seen the following medical experts, in addition to the doctors at Kempsey District Hospital:
(a)     Bundaberg Hospital on 9 April 2014;
(b)     Dr Da Costa, general practitioner, on 11 April 2014;
(c)     Dr Mondia, general practitioner, on 22 April 2014, and
(d)     Dr Licina, spine surgeon, on 12 June 2014.
None of the documents produced by the above hospital and doctors referred to Mr Caddaye suffering symptoms in his neck, or to him injuring his neck on 2 April 2014. The Arbitrator dealt with this by saying that it was natural for Mr Caddaye to focus on the “worst segment” (T25.4) and that “these things can be overlooked” (T25.6). As discussed above, given the evidence from Kempsey District Hospital that Mr Caddaye expressly disavowed any injury to his neck, it was not open to say that the neck injury had been “overlooked”.
Because of the error in the assessment of Mr Caddaye’s credit, and the error concerning Dr Korber’s evidence, the issue of whether Mr Caddaye injured his neck on 2 April 2014 must be re-determined.

THE BOWEL AND BLADDER PROBLEMS

The evidence

On 12 November 2009, a document headed “Brief Inpatient Admission Summary” referred to, among other things, “bladder probs 2 3 wks ago”. An undated document from the Back Stability Assessment Clinic, presumed to have been prepared in or about November 2009, also refers to “bladder” but the comment about the bladder, if any, is indecipherable.
On 6 January 2010, Loretta O’Sullivan, physiotherapist, saw Mr Caddaye for his thoracic and lumbar spine pain. In her report of the same date, she took a detailed history of Mr Caddaye’s back symptoms. Dealing with his bowel and bladder, she said:
“On questioning of cord and cauda equina signs, he had no cord signs but when asked about his bladder he reported that he is unable to pass properly even though his bladder was full, he couldn’t, and there was only a trickle, but had no pins and needles or numbness in this area. He then later said that he had probably more issues with his bowel rather than his bladder. However, I was quite concerned about this and have referred him around to Casualty at the Mater for it to be further looked at just to rule out any cauda equina, prostate or other issues there whilst he is in Brisbane.”
Ms O’Sullivan added that Mr Caddaye’s “bladder and bowel issues started about two or three weeks ago”.
Mr Caddaye’s evidence in his statement of 17 November 2014 was that, when the scraper hit the pothole, the seatbelt “caused a severe impact to [his] bladder, bowel and hips”. He said that he lost all feeling and movement from his “belly button down”. He had pain across his hips and the bottom of his spine, which shot up into his neck. This sent him into “severe shock”. He felt nauseous and sick. He bent out of the vehicle and vomited repeatedly.
Mr Caddaye drove the scraper back to the parking bay and reported to the site supervisor that he had hurt his back. He was taken to Kempsey District Hospital. On his discharge the following day, Mr Caddaye decided to return to his home at Buxton, in Queensland, he having been staying at a motel at Kempsey for the job with the appellant.
He said that he wet himself during the trip to Buxton and that that was when he “realised [he] had incontinence issues as a result of the accident”. He said he had “never had any incontinence issues of any kind before”. He added that, since the accident, he has had “ongoing intermittent issues with incontinence”. He initially (after 2 April 2014) had issues with constipation, but they subsided when he became more conscious about his diet.
In a report dated 12 June 2014, Dr Licina took a history that Mr Caddaye has had “problems with bladder function since” 2 April 2014.
In his report of 26 February 2015, having seen Mr Caddaye on that day, Dr Hopcroft took a history that Mr Caddaye “continues to have occasional bladder incontinence and occasional bowel incontinence suggesting a cauda equina effect”. In his report of 22 April 2015, Dr Hopcroft said that Mr Caddaye has, among other things, “corticospinal tract damage with occasional bladder and bowel incontinence”.
Reviewing records relating to Mr Caddaye’s symptoms and treatment before 2 April 2014, Dr Hopcroft noted that following a CT scan of Mr Caddaye’s back at Emerald Hospital in November 2009 it was “recorded that this patient’s ‘bowel and bladder working well’”. (This note appears to be from the records of Dr Michael Earl, general practitioner, dated 18 November 2009. The full entry is: “Recent back pain and sciatic symptoms while visiting mine site. Now settling, was briefly admitted at Emerald Hospital. CT result scanned. Bowel and bladder working well”.)
Dr Hopcroft said that it was “clear that following the injury of 02 April 2014 that the patient developed problems with bladder control and bowel control, which did not pre-exist prior to that accident and was specifically mentioned when the patient visited the Emerald Hospital in 2009”. He concluded that Mr Caddaye had been “left significantly compromised with ongoing and significant back pain, ongoing neck and lumbar spinal pain, and the ongoing effects of cauda equine [sic] changes leading to his bladder and bowel problems”.

The Arbitrator’s reasons

The Arbitrator noted the submission by Mr Wardell that Dr Hopcroft took a history of no bladder and bowel issues before 2 April 2014, which was contrary to Ms O’Sullivan’s evidence. After referring to the evidence summarised above, the Arbitrator said, at T26.17:
“I do not think his [Dr Hopcroft’s] opinion is in any way compromised by the fact that he does not refer to bowel and bladder problems beforehand, as we have noted from Ms O’Sullivan’s report that the fact was that there is not any evidence of any of those problems before the injury of 2 April 2014. While there may have been some issues before, they do not seem to have been apparent before the injury of 2 April last year. So there is a fair climate for accepting Dr Hopcroft’s opinion in terms of ..[not transcribable 1:03:53.6]. It appears Ms O’Sullivan’s concerns were not borne out.”

Submissions

The appellant repeated its submissions about Mr Caddaye’s credit and in relation to the pre-injury medical history. It submitted that Dr Hopcroft was not provided with a history of the complaints of “further bladder and bowel problems on 6 January 2010”, the investigation for urinary incontinence and retention on 23 April 2012, or the very severe back pain for an extended period commencing on 13 June 2013. Therefore, Dr Hopcroft’s assumptions did not provide a fair climate for his conclusions and his opinion was of limited probative value (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita)).
Further, it was contended that Dr Hopcroft did not provide an adequate explanation in relation to his conclusion and his statement that “the ongoing effects of cauda equine [sic] changes leading to his bladder and bowel problems” has limited probative value because it is a bare conclusion unsupported by any analysis or reasoning (Brasz at [93]).
Moreover:
(a)     an orthopaedic review at the Bundaberg Hospital on 9 April 2014 failed to reveal any clinical or radiological evidence of cauda equina damage and the MRI scan of 22 January 2015 failed to reveal any evidence of cord or cauda equina compromise;
(b)     Dr Mondia reported on 17 October 2014 that Mr Caddaye’s post injury incontinence issues were of “short duration”, and
(c)     the last mention of incontinence issues to a treating doctor was to Dr Licina on 12 June 2014, they were not mentioned to Dr Drummond or Dr English, and re‑emerged, for the purposes of the medicolegal assessment by Dr Hopcroft on 26 February 2015.
It follows, so it was submitted, that the Arbitrator’s reliance on Dr Hopcroft’s opinion was “unsound” and, in the absence of neurological or neurosurgical evidence, it was not open to find that bladder and bowel symptoms were causally related to the injury on 2 April 2014.
Mr Caddaye relied on the evidence from Dr Mondia, quoted above, and from Dr Hopcroft in his report of 26 February 2015 that he continued to have occasional bladder incontinence and occasional bowel incontinence “suggesting cauda equina effect”. He conceded that the problem was not constant.

Discussion and findings

I agree with the Arbitrator that the fact that Dr Hopcroft did not have a history of the problems noted by Ms O’Sullivan is of no consequence. That is because, as the Arbitrator noted, though there may have been a problem in January 2010 (and late 2009), there is no evidence that they were apparent before 2 April 2014. Though Ms O’Sullivan suggested further investigations, there is no evidence that they were undertaken. Nor is there any evidence of continuing bladder and bowel issues between January 2010 and April 2014.
The appellant’s reliance on an ultrasound said to have been dated 23 April 2012 is misplaced. Mr Caddaye’s general practitioner at that time was Dr Damien Mergard. Dr Mergard saw Mr Caddaye on 24 April 2012 and took a history of aches in Mr Caddaye’s fingers and through his body. Dr Mergard expressly recorded “[n]o problems with eye symptoms or urinary symptoms are reported”. He did not refer to an ultrasound.
This may be contrasted to the evidence from Dr Mondia, who saw Mr Caddaye on 22 April 2014 when he took a history of the 2 April 2014 injury causing severe pain in the back. Significantly, Dr Mondia also recorded:
“Patient also with urinary retention and later incontinence
No weakness now but had initial weakness immediately after the incident
Wants to have further investigation of the cause of the symptoms
…
Imp: Urinary symptoms ? neurologic problem”
Under “Actions”, Dr Mondia referred to an “[i]maging request to Childers Medical Imaging: Ultrasound scan – KUB (urinary incontinence and retention)”. Though Dr Mondia did not refer to the ultrasound report, his history, together with the fact that the ultrasound report is addressed to him and not Dr Mergard, strongly suggests that the scan was done on or about 23 April 2014 not 23 April 2012. Therefore, it is of no consequence that Dr Hopcroft did not refer to it.
The submission that Dr Hopcroft did not provide an adequate explanation for his opinion is without merit. First, Mr Wardell made no such submission at the arbitration and, as it could have been met by calling further evidence, it is not open to raise such a point for the first time on appeal (Metwally).
Second, the appellant’s submission has ignored the correct approach to expert evidence in the Commission, as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock). As Beazley JA (as her Honour then was) stated at [83], in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for 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” (at [85]).
What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1 at [631] (Adler)). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89] (Red Bull)). Absolute certainty that the expert has based his or her opinion on specialised knowledge is not required (Red Bull at [14]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] (Rich) “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports. (See also Brambles Industries Ltd v Bell [2010] NSWCA 162 where Hodgson JA (Tobias and McColl JJA agreeing) held (at [20]) that a Deputy President did not err in accepting the opinion of Dr Conrad in circumstances where he did not “elaborate on reasons why the MRI did not alter his previous opinion, and it may have been preferable if he had done so”.)
In the present case, Dr Hopcroft based his opinion on his examination of Mr Caddaye, the history he took of urinary incontinence, an examination of the radiological reports, and, though unstated, his experience and expertise as a general surgeon (orthopaedics). He concluded that Mr Caddaye has “corticospinal tract damage with occasional bladder and bowel incontinence”. No further explanation was required and the Arbitrator was entitled to accept his evidence on this issue.
In light of the above analysis, nothing in Mr Caddaye’s credit impinges on this issue. The contemporaneous complaints of incontinence shortly after the 2 April 2014 incident, confirmed in several sources, mean that his failure to mention the 2010 symptoms is of no consequence. It was open to Dr Hopcroft to express the opinion he did and it was open to the Arbitrator to accept that opinion.
This ground of appeal is therefore unsuccessful and it is not open to argue at the re-determination that Mr Caddaye’s bowel and bladder incontinence has not resulted from the incident on 2 April 2014. However, whether the problem is continuing, and its severity, may be relevant to whether Mr Caddaye has a current work capacity and the parties will be entitled to re-argue that issue. Whether the incontinence has resulted in any whole person impairment will be a matter for an Approved Medical Specialist.

WHETHER MR CADDAYE’S BACK SYMPTOMS ARE CAUSALLY RELATED TO THE INJURY ON 2 APRIL 2014

The evidence

Though this ground relates to whether the effect of the conceded injury to the low back is continuing, it is convenient to set out the relevant evidence and submissions dealing with the low back (the lumbar spine) and the upper back (the thoracic spine).
On 21 May 2014, Isis Medical Centre (presumably Dr Mondia, but the report is not signed) wrote to Dr Licina:
“Thank you for seeing Stephen Caddaye, age 49 years, for review and opinion of his T12 fracture sustained after a jolting injury while driving a scraper in NSW – 02/04/2014. Patient had transient weakness on both legs and had severe back pain. He had initial review at NSW and had CT-scan which was unremarkable. Persistent [sic] of pain prompted patient to represent … and MRI done showed T12 facture, patient also with urinary retention during that time. He then have [sic, had] episodes of urinary incontinence which is improving slightly. Patient had normal anal tone no weakness on lower extremity with persistent severe back pain.”
Dr Licina saw Mr Caddaye on 12 June 2014 and reported to Dr Mondia (at Isis Medical Centre) on that day. He took a history of Mr Caddaye hurting his back while driving over uneven terrain on 2 April 2014 when he was “jarred significantly and had numbness from the waist down”. Dr Licina noted that Mr Caddaye had “problems with bladder function since”. Mr Caddaye described pain in his mid-back extending down to the low back and across the side, more on the right. The pain went down his legs and even into his arms. He was taking large doses of Targin, Endone, Tramal and Mobic.
On examination, Mr Caddaye moved with significant discomfort and his range of thoracolumbar movement was “markedly reduced”. Mr Caddaye had severe pain, which Dr Licina thought was “somewhat out of proportion with the fracture” and that if he was not treated aggressively he would deteriorate. Dr Licina recommended several steps in Mr Caddaye’s treatment, including a referral to Ms Yusuf, a pain psychologist and Brendan Moore, a pain specialist.
On 26 September 2014, Dr Mondia wrote to a Sandra Vannoordt in the following terms:
“Thank you for seeing Stephen Caddaye, age 49 yrs for worsening depression/PTSD triggered by recent accident at work [in] which he sustained [a] T12 spine fracture. Patient upset that he is continuously suffering of [sic] pain and not going anywhere with his insurance to progress for [sic] his investigation and treatment. He is also annoyed thinking that [an] investigator from the insurance survey him regularly.
Patient [is] under work cover.”
Dr Hopcroft has prepared three reports. In his first report, dated 26 February 2015, he took a history of the 2000 motorbike accident, but only recorded that Mr Caddaye suffered a compound fracture of the right elbow, a rotator cuff tear and a fracture of his left ankle, all of which required surgery. He took no history of Mr Caddaye experiencing mid or low back symptoms in that accident or at any time prior to 2 April 2014. His second report, dated 22 April 2015, dealt with the condition of Mr Caddaye’s neck.
In his third report, dated 4 June 2015, Dr Hopcroft said he reviewed documentation forwarded to him by Mr Caddaye’s solicitors. (It was submitted at the appeal hearing that those documents did not include the documents relating to Mr Caddaye’s complaints in 2013 and early 2014 because they only became available late in the proceedings.) Though he did not list the documents forwarded to him, he referred to significant items in Mr Caddaye’s past medical history having been “overlooked” by him, noting that they “must be addressed”.
On this occasion, Dr Hopcroft noted that, on a date not identified but presumably sometime after 2000 (but well before 2 April 2014), it had been suggested by Mr Caddaye’s general practitioner that Mr Caddaye might have fractured the T9 and T10 thoracic vertebrae in the 2000 motorbike accident. Dr Hopcroft felt it was more probable that the changes were representative of Mr Caddaye’s significant Scheuermann’s osteochrondritis, “which has pervaded all further radiological studies from that time”.
Next, Dr Hopcroft noted evidence from Dr Anstee, plastic surgeon, dated 24 March 2003, that Mr Caddaye suffered a possible fracture of T7/T8. Dr Hopcroft thought that Dr Anstee was referring to Mr Caddaye’s pre-existing mid thoracic Scheuermann’s osteochondritic changes.
Dr Hopcroft said that Mr Caddaye’s neurologist in 2003, Dr Sadal, commented on ongoing “mid back” pain but did not feel Mr Caddaye had any spinal cord or nerve root problems following that injury (presumably this was a reference to the 2000 motorbike accident). Dr Hopcroft accepted that Mr Caddaye aggravated his thoracic spondylitic changes in what he called “that motor vehicle accident”, by which I assume he meant the 2000 motorbike accident, but it appeared that Mr Caddaye “recovered significantly from the pain he had at that time”.
Dr Hopcroft conceded that, following the accident on 2 April 2014, “there will necessarily be a subtraction due to pre-existing changes”. He thought that any aggravation of Mr Caddaye’s thoracic spondylitic changes in the May 2007 motor vehicle accident was of a temporary nature and that Mr Caddaye returned to his previous levels of functioning.
Turning to the July 2009 accident, when Mr Caddaye suffered an undisplaced tibial plateau fracture of his left knee, Dr Hopcroft noted that it was anticipated that he would return to work in early 2010. While Dr Earl, his general practitioner at the time, felt that Mr Caddaye may have sprained his lumbosacral spine, he had a full range of movement without tenderness.
With respect to the episode of back pain with sciatica in November 2009, when Mr Caddaye attended Emerald Hospital and had a CT scan of the thoracolumbar spine on 12 November 2009, Dr Hopcroft quoted the findings from that scan, which showed no evidence of any subluxation or a wedge compression fracture, nor any evidence of a significant disc bulge or prolapse.
Dr Hopcroft noted that on 1 September 2010, Mr Caddaye was referred to Port Hedland Hospital complaining of sudden onset low back pain, with a history of an old injury in 2000. Mr Caddaye complained of tenderness at T12-L1, L2-L3 with numbness and tingling. A CT report dated 1 September 2010 showed Scheuermann’s type changes within the endplates from T9 to L2 with multiple foci of intervertebral osteochondrosis. There was a mild height reduction at T11 of approximately 15 per cent, which was in keeping with the known history of prior trauma. There was also narrowing of the bilateral T10 exit foramina as a result of developmentally short pedicles and moderate facet joint arthrosis at the T10-11 level. No protrusion was identified.
Dr Hopcroft then referred to the post 2 April 2014 radiology, which revealed the fracture and wedging at T12 with 30 per cent loss of anterior height. Dr Hopcroft described this as “clearly a new finding on x-ray” (I also note that the MRI scan of 22 January 2015 revealed “almost 50% central height loss at T12” in addition to the 30 per cent anterior height loss). Scans also showed a large interosseous disc herniation through the inferior end plate of T12 and smaller interosseous disc herniations about the L1-2 disc and about the L4-5 disc.
Dr Hopcroft then answered several questions put to him by Mr Caddaye’s solicitor:
“6.     I believe the injury to the patient’s back in 2009 was a temporary aggravation of his pre-existent changes.
7.     I believe there was no assessable contribution to the patient’s back assessment as a result of the injury to his leg in 2009.
8.     There has obviously been a significant progression in the shape of this patient’s T12 vertebra with a loss of anterior height of 30 per cent following the injury on 02 April 2014 but not displayed at the CT scan result of 1 September 2010.
9.     A comparison of his x-rays shows conclusively that this patient has suffered a significant acute wedge compression fracture of T12, while the T11 changes are almost certainly long standing, pre-existent and may well be a result of her [sic] Scheuermann’s osteochrondritis and the injury from the motor vehicle accident of 2000.
10.    I believe therefore that this patient’s ongoing and significant thoracic spinal pain consists of two elements:
(a)An aggravation of his pre-existent spondylitic changes and the malalignment caused by the wedging at T11, and,
(b)From the acute undiagnosed fracture of T12 which collapsed in the months thereafter and was proven to have collapsed, and to have collapsed to a degree of 30% loss of anterior height.
It is also clear that following the injury on 02 April 2014 that the patient developed problems with bladder control and bowel control which did not pre-exist prior to that accident and was specifically mentioned when the patient visited the Emerald Hospital in 2009, where it was said, ‘Bowel and bladder working well.’
11.    I have reviewed the report of Dr Robert Drummond and my careful analysis provided in the body of this report, I believe, was overlooked by Dr Drummond in his assessment of 05 August 2014.
12.    I have reviewed the Job Capacity Assessment report of 10 January 2014, and a copy of the rejection of the patient’s application for disability support made by the patient in 2014.
I believe that since 02 April 2014 this patient’s work capacity has been left very severely compromised, as up until that time he was both ready and capable of undertaking significant work practices previously detailed.
He has now been left significant [sic] compromised with ongoing and significant back pain, ongoing neck and lumbar spinal pain and the ongoing effects of cauda equine [sic] changes leading to his bladder and bowel problems.”
The appellant relied on evidence from Dr English and Dr Drummond. Dr English took the following history in his report of 11 June 2015:
“He denied any previous back problems by 2 April 2014, other than occasional muscular aches. This disagrees from viewing the brief, particularly the general practitioner records, which documents him attending e.g. on 5 February 2014 and 30 January 2014 in regard to back pain and possible funding of a neurosurgical opinion.
Multiple previous entries in regard to severe back pain e.g. 28 October 2013 referral to neurosurgeon at Royal Brisbane & Women’s Hospital with severe back pain affecting quality of life.”
After recording a history of the incident on 2 April 2014, Mr Caddaye’s occupational, educational and personal history, Dr English recorded under “Medical History”:
“His general practitioner is Dr Shilton. He denies any previous problems with his neck, thoracic or lumbar region. He denies any other health problem. He is currently using Norspan patches 20mg, taking Mobic and Zantac. He tells me he had a motorcycle accident years ago sustaining an open fracture of his right elbow and a fracture of his left ankle and an injury to his right shoulder but again denied any back problems following the motorcycle accident. He is a non smoker who drinks 7 or 8 units of alcohol per week.”
After referring to some of the pre-2014 medical evidence, which included evidence in September 2010 of a T11 fracture, a CT of 14 June 2013, which showed relatively minor degenerative disc disease at L3/4 and L4/5 with possible compromise of the exiting left L4 and L5 nerve roots and early osteoarthritis in the apophyseal joints, and the post 2 April 2014 radiology, Dr English concluded:
“In summary, it would appear that Mr Caddaye has aggravated pre-existing degenerative change within his cervical, thoracic and lumbar spine and sustained a crush fracture of T12 vertebra with approximately 30% loss of anterior vertebral body height. Significant overstatement would appear to be present with repetitive denial of any pre-existing back problems of any sort which differs markedly from the record.”
On whether the injuries on 2 April 2014 were responsible for incapacity for work beyond 21 October 2014, Dr English said:
“The T12 fracture is probably responsible for some of the incapacity for work beyond 21 October 2014. This would normally result in a period of three to perhaps six months off work. Ongoing incapacity beyond this date is hard to explain from an orthopaedic basis.”
In his report of 5 August 2014, Dr Drummond recorded Mr Caddaye’s then current symptoms as follows:
“Back pain and stiffness. He indicates the lumbosacral spine as the commencing point of the pain with radiation proximally to the left side of the paravertebral region of the thoracic spine.
He is able to walk two blocks generating episodic pain.
Standing for ten minutes on concrete generates back ache and he needs to change his posture or sit down.
Sitting he needs back support.
Driving his car is possible for sixty minutes with a back support and he uses a small pillow.
At night time lying on his back he tosses and turns and puts a pillow between his legs for comfort.
He needs an analgesic at night time.
Dressing and washing and self caring he is able to perform without restriction.”
I have previously set out Mr Caddaye’s “Past History”, as recorded by Dr Drummond (see [29] above). Dr Drummond diagnosed Mr Caddaye to have symptoms of advanced spondylosis, but no convincing evidence of a thoracic fracture, symptoms in degenerate intervertebral lumbar joints, possible diffuse idiopathic skeletal hyperostosis, previous Scheuermann’s disease. He concluded that Mr Caddaye had no symptoms relating to the work injury on 2 April 2014.
If Mr Caddaye did fracture T12, Dr Drummond said that the effects of it had resolved. He conceded that employment was a substantial contributing factor to producing symptoms in Mr Caddaye’s advanced thoracic spondylosis and degenerative changes in the lumbar spine, but the “effects of this contributing factor has now ceased”. The pre-existing degenerative changes in the thoracic spine, which were extremely advanced, were the main reason for (Mr Caddaye) “developing symptoms”. Mr Caddaye’s current symptoms suggested a degree of magnification. Mr Caddaye’s fitness for work would be restricted by the presence of advanced thoracic spondylosis and lumbar degenerative disc disease, which was pre-existing.

The Arbitrator’s reasons

After summarising the relevant evidence, the Arbitrator said, at T26.6:
“Now turning to capacity, the evidence is clear that I have been through in some detail, as to the impact of the injury on the thoracic and lumbar spine. There was immediate onset of severe symptoms which have continued to date. Dr Korber’s report analyses the imaging studies in respect of the lumbar and thoracic spine, as well as the cervical and Dr Hopcroft, in his report of 4 June 2015, when he has a fuller history analyses the situation, the medical situation, in some detail and I find that compelling.”
After commenting on the fact that Dr Hopcroft did not refer to Mr Caddaye having bowel and bladder problems prior to 2 April 2014, the Arbitrator said, at T26.29:
“So the conclusion really is escapable [sic, inescapable] that the symptoms were much worse after the injury. Mr Caddaye was working at heavy duty employment up to the incident and he has not been able to do that afterwards. I prefer Dr Hopcroft to Dr Drummond on the issue of the continuing aggravation and Dr Hopcroft is consistent with Dr Korber and the symptoms that are reported by Mr Caddaye. There has been a qualitative belief in the level of symptoms since the T12 was crushed and obviously most of the – the symptoms are really stemming from that. There are the issues coming from the lumbar spine.
There are now bowel and bladder control problems and that is a formidable hurdle to the ability to work. It would no doubt be a key factor in any major rehabilitation plan, as Dr Hopcroft calls it, that would be required before Mr Caddaye could contemplate going into some part-time sedentary work.
There is also a medical certificate, which I have not referred to yet, of Dr Shilton which is dated 4 June 2015. He certifies Mr Caddaye as being totally unfit for employment. He actually puts some restrictions down on capacity there but those restrictions are commensurate with a total incapacity. He interestingly makes a comment there, ‘No change in last 12/12.’ In other words, he was saying this has been the situation that has pertained for the 12 months, preceding 12 months and that is consistent with this incapacity being current all the way through the period claimed.
I find for these reasons that Mr Caddaye’s incapacity for work is due to the work injury on 2 April 2014. That the aggravation from that continues, notwithstanding the pre-existing pathology in the lumbar and thoracic spines, primarily of course the T12 crush fracture, which I accept did occur, contrary to Dr Drummond’s opinion, on the basis of Dr Hopcroft and Dr Korber. I find that Mr Caddaye has been totally incapacitated for work in the period claimed.”

Submissions

The appellant submitted that Dr Hopcroft did not have a history of back problems after 1 September 2010 or of the extensive complaints by Mr Caddaye about his back between 13 June 2013 and 25 February 2014. Given the duration and severity of those complaints, and their proximity to the injury, it was contended that Dr Hopcroft’s opinion was not based on assumptions that provided a fair climate for his opinion (Makita).
It argued that Dr Hopcroft expressed no opinion as to the diagnosis in respect of the lumbar spine, other than vaguely stating in his report of 26 February 2015 that Mr Caddaye had “aggravated problems affecting his cervical and lumbar spine and has also incurred non-identifiable radicular symptoms”. This, so it was contended, was a bare conclusion not supported by any analysis or reasoning and did not provide the Arbitrator with a basis to conclude that the effects of any back injury were continuing.
The appellant submitted that the Arbitrator failed to consider or have regard to relevant evidence, namely the clinical notes of attendances (by Mr Caddaye) with back complaints between 13 June 2013 and the date of injury. Though the Arbitrator referred to attendance by Mr Caddaye on his general practitioner (Dr Forbes) on 13 June 2013, he failed to refer to the eight other subsequent attendances up to 5 February 2014 or the application for a Disability Support Pension on 25 February 2014.
It was contended that the Arbitrator failed to give adequate reasons for rejecting the evidence of Dr Drummond and Dr English in relation to the lumbar spine and that Dr English’s evidence is compelling, as he had the most detailed and complete history. The appellant submitted that the only reasonably available finding is that Mr Caddaye temporarily aggravated pre-existing pathology in his lumbar spine.
Mr Caddaye submitted that the appellant conceded the T12 fracture. He relied on the findings of the various MRI scans in evidence and contended that his symptoms were within the parameters of the type of injury received. With respect to the low back, Mr Caddaye noted that that injury was also conceded and argued that it was open to the Arbitrator to find that the effect of that injury was continuing.

Discussion and findings

Whether the effect of the accepted injury to the lumbar spine is continuing largely depends on whether Mr Caddaye’s evidence is accepted. In determining that question, Mr Caddaye’s credit will obviously be a relevant factor, but not the only factor. As the matter must be re‑determined in any event, I do not intend to express a concluded view on this issue, but I make the following observations about the appellant’s submissions.
The attack on Dr Hopcroft’s evidence, based on Makita, is not well founded. Beazley JA (Giles and Tobias JJA agreeing) explained in Hancock (at [82]) that there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report”.

To the extent that an expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Rich at [101]–[102]; [105]–[134]). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510 (Paric)).
Beazley JA referred (at [77]) to the following statement by Spigelman CJ in Rich at [105], which she described as “clearly correct”:
“Although expressed in terms of ‘usefulness’, the starting point for Heydon JA’s detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention – the ‘prime duty’ – is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.” (emphasis added by Beazley JA)
Thus, Dr Hopcroft’s history did not have to accord with contemporaneous records before the opinion based on it could be accepted. As noted earlier (see [103] above), what is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence 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”.
Dr Hopcroft based his opinions on the history he took from Mr Caddaye, his findings on examination, the information provided to him by Mr Caddaye’s solicitor in May 2015 about Mr Caddaye’s prior problems (which did not include all of the problems in 2013 or early 2014), and the information in the extensive radiological investigations taken before and after 2 April 2014.
In determining if the effects of the injury to the low back were continuing, it did not matter that Dr Hopcroft did not have a complete history of the 2013 and 2014 matters. (I note that the submission that Dr Hopcroft had no history of those matters was incorrect. In his report of 4 June 2015, he reviewed a job capacity assessment report of 10 January 2014 and a copy of the rejection of Mr Caddaye’s application for a Disability Support Pension. Thus, he was aware that Mr Caddaye had made a claim for that pension in late 2013 or early 2014.) For the reasons explained at [103]–[105] above, Dr Hopcroft did not have to give any further explanation before his opinion could be accepted. The appellant’s submissions on this issue have completely ignored the principles in Hancock, which the Commission has applied in dozens of cases. It is simply astonishing that the profession continues to ignore the clear reasoning in that decision.
Applying the appellant’s reasoning to its own medical case would see no weight given to Dr English’s opinions. His opinions were merely that Mr Caddaye may have temporarily aggravated degenerative change within the cervical region, but no lasting injury to the cervical spine was diagnosed, that beyond a short term aggravation of degenerative change within the lumbar spine, he could not discern any further specific lumbar injury, and that the T12 fracture would normally result in a period of three to perhaps six months off work and that ongoing incapacity beyond that date was hard to explain from an orthopaedic basis. These opinions (and the opinions of Dr Drummond) were explained in no more detail than the opinions provided by Dr Hopcroft. Nevertheless, the appellant is entitled to rely on them in support of its position and Mr Caddaye is entitled to rely on the opinions of Dr Hopcroft. What weight is attached to them is a matter for the next Arbitrator.
Given that injury to the low back (an aggravation of degenerative changes) was conceded, it is a nonsense to criticise Dr Hopcroft’s evidence on the ground that his diagnosis was merely that Mr Caddaye had “aggravated problems affecting his cervical and lumbar spine and has also incurred non-identifiable radicular symptoms”. His opinion that the injury has left Mr Caddaye with ongoing and significant lumbar spine pain was open. Whether that opinion is accepted is a matter for the next Arbitrator, having regard to the evidence called and submissions made at the next hearing.

WHETHER MR CADDAYE’S INCAPACITY IS CAUSALLY RELATED TO THE INJURY ON 2 APRIL 2014

The evidence and the Arbitrator’s reasons

The relevant evidence and the Arbitrator’s reasons have been summarised above.

Submissions

The appellant essentially repeated the submissions it made on the immediately preceding issue to the effect that Mr Caddaye’s failure to disclose the full and correct history to Dr Hopcroft means that the evidence from that doctor is not based on a fair climate such as to enable an opinion to be validly expressed and to be of significant probative value (Makita).
It was contended that Dr Hopcroft appears to have based his conclusion on the premise that until 2 April 2014 Mr Caddaye was ready and capable of undertaking significant work practices “previously detailed”. Those practices are unclear and appear to be limited to operating a scraper and there is no evidence of the physical requirements of that task in the doctor’s reports. The only evidence of those requirements, as it was submitted, is in a document from the insurer headed “Suitable Duties Schedule”, which described Mr Caddaye’s pre-injury duties as follows:
“Drive and operate earthmoving scrapers.
         Walking to and from machine on uneven ground.
         Twisting movements to manouver [sic] machine.
         Operating machine on uneven ground.”
The appellant argued that the Arbitrator appears to have incorrectly used Mr Caddaye’s statement that he has been involved in “the use or operation of heavy earthworks” to conclude that he was “working at heavy duty employment up to the incident and has not been able to do that afterwards” (T26.31), or he has relied on the incorrect submission that Mr Caddaye was able to do labouring work when he commenced employment with the appellant.
In fact, so it was contended, Mr Caddaye’s evidence was that since August 2011 his duties were limited to grader driving and he conceded that for four to five months before commencing employment with the appellant he was on a “Newstart” allowance “during a period of temporary unemployment prior to his employment with the [appellant]” (letter from Mr Caddaye’s solicitor to the appellant’s solicitor dated 11 May 2015, tendered by consent at the oral hearing of the appeal).
It was submitted that it was not possible to infer from the above that Mr Caddaye demonstrated a full and complete physical capacity prior to the alleged injury on 2 April 2014 or that his current condition resulted from the injuries sustained on 2 April 2014. It was noted that Mr Caddaye conceded (in the history to Mr Kearse) that he was permanently unfit for his primary employment as a plumber and the evidence establishes that between 13 June 2013 and 25 February 2014 he was actively pursuing a Disability Support Pension and attempting to access the Total and Permanent Disability benefits under his superannuation policy, having been unemployed for four or five months before starting with the appellant on 24 March 2014.
Mr Caddaye referred to the fact that he has had almost continuous employment, save for four or five months off prior to starting with the appellant on 24 March 2014. From 2004 until 2013, he drove heavy equipment, graders and scrapers, though he conceded he could not work as a plumber. (Exactly when Mr Caddaye ceased working as a plumber is unclear. His statement suggests it may not have been until February 2009 and Mr Kearse did not give a date.) He had an earning capacity before 2 April 2014 and exercised it until his injury, working 10 hour days Monday to Friday and six hours on Saturdays with no need for time off. He submitted that, as a result of his injury on 2 April 2014, he has been unable to return to work.

Discussion and findings

I have already dealt with the appellant’s Makita submissions and the comments made above also apply to this issue and I will not repeat them.
The attack on Dr Hopcroft’s statement that, since 2 April 2014, Mr Caddaye’s “work capacity has been left very severely compromised, as up until that time he was both ready and capable of undertaking significant work practices previously detailed”, is without substance and is rejected.
Dr Hopcroft’s history was that Mr Caddaye worked for the appellant for two weeks operating a scraper while undertaking highway by-pass work and that the scraper hit a large washed-out soft spot that caused the vehicle to bounce violently and catapult Mr Caddaye out of his seat. That history provided a reasonable basis for Dr Hopcroft’s reference to “significant work practices”. The reference to “significant work practices” was consistent with Mr Caddaye’s evidence that, in the period prior to the incident on 2 April 2014, he worked 10-hour shifts and six hours on Saturdays.
Even if it were accepted that Dr Hopcroft’s history with respect to Mr Caddaye’s pre-injury work practices was deficient, a deficiency in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” (Hancock at [92]). Or, I would add, it may be made good with other evidence. Dr Hopcroft’s statement was consistent with the evidence referred to by the appellant in the Suitable Duties Schedule (see [150] above). The work of operating earthmoving scrapers comfortably fits within the broad description of “significant work practices”. It may not be as heavy and physically demanding as (say) breaking concrete, but, as the Suitable Duties Schedule highlights, it has significant physical demands, such as walking on uneven ground, twisting movements, and operating machinery on uneven ground.
When one adds the fact that Mr Caddaye worked 10-hour shifts for five days per week and for six hours on Saturdays, and that there is no evidence that Mr Caddaye was unable to perform those duties prior to his accident on 2 April 2014, it was open to the Arbitrator to conclude that Mr Caddaye worked “at heavy duty employment up to the incident”.
The fact that Mr Caddaye had been on a Newstart allowance for four or five months leading up to starting with the appellant is of limited, if any, relevance. A Newstart allowance is only paid when a person meets certain criteria, one of which is that the person is looking for suitable paid work. Thus, the receipt of such an allowance supports Mr Caddaye’s submission that he had a capacity for employment prior to starting with the appellant.
It follows that it was open to the Arbitrator to conclude that Mr Caddaye was “working at heavy duty employment up to the incident and has not been able to do that afterwards”.
The submission that it was not possible to infer that Mr Caddaye demonstrated a full and complete physical capacity prior to 2 April 2014 is based on the false premise that he had to do so before he could recover weekly compensation. He did not. Mr Caddaye conceded that, prior to 2 April 2014, he was unable to work as a plumber. That fact did not disqualify him from obtaining weekly compensation, if he otherwise established an entitlement to that compensation. The appellant’s submissions, which were more than a little surprising, have overlooked the fundamental principle that employers take their employees as they find them (Chemler at [40]).
Because of the errors previously identified, the question of whether Mr Caddaye’s current incapacity has resulted from the injury or injuries on 2 April 2014 must be re-determined and depends on an assessment of all the evidence, lay and expert, and (in part) on an assessment of Mr Caddaye’s credit. The fact that, between June 2013 and February 2014, Mr Caddaye was pursuing a Disability Support Pension must be assessed in the context that Mr Caddaye was in fact unsuccessful in that application and, more importantly, in the context that he obtained what appears to have been suitable employment with the appellant on 24 March 2014, which he performed without restriction or apparent difficulty until his accident on 2 April 2014.

FINDING OF TOTAL INCAPACITY AS A RESULT OF THE INJURY ON 2 APRIL 2014

The evidence and the Arbitrator’s reasons

The relevant evidence and the Arbitrator’s reasons have been summarised above.

Submissions

The appellant submitted that Dr Hopcroft expressed his opinion on incapacity in his report of 26 February 2015 and that opinion was based on a flawed history and, therefore, was not based on a fair climate (Makita). His second opinion (found in his third report), based on a partial disclosure of the true history, was a bare conclusion unsupported by any analysis or reasoning and it is therefore of limited probative value. Further, his second opinion was based on an assumption that Mr Caddaye has corticospinal tract damage, a matter that is a bare conclusion unsupported by any analysis or reasoning and which was not the subject of reasoning by the Arbitrator.
It was on the basis of Mr Caddaye having a 30 per cent loss of height at T12 and a 25 per cent loss of height at T11, both as a result of the incident on 2 April 2014, that Dr Hopcroft concluded (in his first report) that Mr Caddaye was grossly disabled. Dr Hopcroft later revised his opinion, when provided with further information, to state that the T11 loss was unrelated to the injury on 2 April 2014, but he did not provide a commensurate adjustment to his opinion in relation to incapacity.
The Arbitrator’s findings in relation to incapacity are based substantially on his conclusion that Mr Caddaye’s symptoms were much worse after the injury. It is contended that it is not possible to make such a finding in the absence of a reasonably accurate understanding of the pre-injury and post-injury situation. The Arbitrator did not possess such an understanding.
The Arbitrator has relied on a medical certificate from Dr Shilton dated 4 June 2015 to support his finding that Mr Caddaye’s condition has not changed in the previous 12 months. However, Mr Caddaye’s first consultation with Dr Shilton was on 26 March 2015 and the doctor was entirely reliant on Mr Caddaye’s history as to the nature and progression of his symptoms. As the doctor had no direct knowledge of these matters, his evidence could never represent a basis for the Arbitrator’s findings. It was repeated that Mr Caddaye was not creditworthy.
Last, the Arbitrator failed to provide any reasons for rejecting the evidence of Dr Drummond and Dr English in relation to incapacity. The appellant then made submissions about the state of the evidence “absent the evidence of Dr Hopcroft”. It was conceded that the appellant is liable for the fracture at T12 and that this would be responsible for a degree of incapacity, but it contended that, in light of the significant level of pre-existing symptoms, such incapacity is “relatively limited” and that Mr Caddaye would have been unable to work extensively in any event.
Mr Caddaye relied on the submissions he made in respect of the previous issue. Essentially, he conceded that he had pre-existing problems, but he had secured work with the appellant and, until his accident on 2 April 2014, he had been able to perform that work. As a result of his injury, he is now unable to do any work.

Discussion and findings

I have previously dealt with the attack on Dr Hopcroft’s opinion based on Makita. For the reasons explained earlier in this decision, that attack is rejected. However, an additional attack on Dr Hopcroft’s evidence is made under this ground of appeal. It is that Dr Hopcroft failed to adjust his opinion on incapacity when he later discovered that Mr Caddaye had only fractured the T12 vertebra on 2 April 2014 and not the T12 and the T11 vertebra. This criticism is completely specious and is rejected.
It is correct that, based on the assumption that Mr Caddaye had fractured both his T11 and T12 vertebra on 2 April 2014, Dr Hopcroft concluded that he had been “left so significantly impaired that not only is he currently unfit … to return to his previous employment activities but he would be wisely advised not to do so”. However, accepting that Mr Caddaye only fractured his T12 vertebra on 2 April 2014, Dr Hopcroft explained in his third report that Mr Caddaye’s ongoing and significant thoracic spinal pain consisted of two elements:
(a) an aggravation of his pre-existent spondylitic changes, and the “malalignment [sic] caused by wedging of T11”, and
(b) the acute fracture of T12, which “collapsed in the months thereafter”.
In addition to these matters, Dr Hopcroft accepted that Mr Caddaye injured his cervical spine in the incident, and that the aggravation caused by that injury and the aggravation of the degenerative changes in Mr Caddaye’s lumbar spine continued. On the basis of these matters, and Mr Caddaye’s history of continuing symptoms in the affected areas, which Dr Hopcroft clearly accepted, he concluded that “since 02 April 2014 [Mr Caddaye’s] work capacity has been left very severely compromised, as up until that time he was both ready and capable of undertaking significant work practices previously detailed”. Given Dr Hopcroft’s analysis of the injuries, no “adjustment” of the opinion expressed in his first report in relation to incapacity was necessary.
I accept that the Arbitrator’s findings on incapacity were based, in part, on an acceptance of Mr Caddaye’s evidence that his symptoms were much worse after the incident on 2 April 2014. As that finding was based on an (apparently) unreserved acceptance of Mr Caddaye’s credit, which has been successfully challenged, this part of the claim must be re-determined. (I also note that the finding of incapacity was also based on an acceptance that Mr Caddaye injured his neck and that that finding must also be re-determined.) In the circumstances, it is not strictly necessary to deal with the remaining points under this heading. However, as those points raise matters that are without merit, I make the following observations about them.
I note in passing that the Arbitrator clearly did possess an understanding of Mr Caddaye’s pre-injury and post-injury situation. He was aware that, a few months before the injury, Mr Caddaye had unsuccessfully sought a Disability Support Pension. He was also aware of the nature and extent of Mr Caddaye’s injuries and his documented complaints in the months after 2 April 2014. The submission that the Arbitrator did not understand the pre-injury and post-injury situation was therefore incorrect.
The challenge to the Arbitrator’s reliance on Dr Shilton’s medical certificate dated 4 June 2015 is based on the argument that Dr Shilton’s opinion, that Mr Caddaye’s condition had not changed for 12 months, depended on Mr Caddaye’s assertion to that effect and, as Mr Caddaye’s credit was challenged, Dr Shilton’s certificate could not be accepted, at least for the 12 month period prior to 4 June 2014. The merit of this argument can be determined at the next arbitration. However, I note that in a certificate dated 9 January 2015, Dr Cotton assessed Mr Caddaye to have no current work capacity for any employment from 21 October 2014 to 28 February 2015 and, in a certificate dated 9 March 2015, that he had no current work capacity for any employment from 9 March 2015 to 9 June 2015.

Last, the submission that the Arbitrator gave no reasons for rejecting the evidence of Dr English and Dr Drummond is rejected. The Arbitrator referred extensively to Dr Drummond’s evidence, which was that Mr Caddaye had not fractured his T12 vertebra (or, if he suffered a fracture, its effects had resolved), that Mr Caddaye’s presentation was compatible with advanced spondylosis and though employment was a substantial contributing factor to producing symptoms in the advanced thoracic spondylosis and degenerative changes in the lumbar spine, the effects of that contributing factor had ceased.
After his review of the evidence, the Arbitrator concluded that it was inescapable that Mr Caddaye’s symptoms were much worse after the injury, that he had been working at heavy-duty employment up to the accident and had not been able to do so after it. He said that he preferred the evidence of Dr Hopcroft to that of Dr Drummond on the issue of continuing aggravation because Dr Hopcroft was consistent with Dr Korber (this presumably was a reference to the diagnosis of the T12 fracture) and the symptoms reported by Mr Caddaye. The acceptance of Mr Caddaye’s reported symptoms turns partly on his credit and, as the appeal against that part of the decision has been upheld, this part of the determination must be re-determined. However, subject to that, the Arbitrator gave clear reasons for accepting Dr Hopcroft’s evidence and rejecting Dr Drummond’s evidence.
The Arbitrator noted Dr English’s evidence, which was essentially that all of Mr Caddaye’s problems were short term and had resolved. His acceptance of Mr Caddaye’s evidence that his symptoms had not resolved, supported by Dr Hopcroft’s evidence, provided a sound basis for the Arbitrator’s clear, if implicit, rejection of Dr English’s evidence.

SECTION 44C(2)

Legislation

Section 44C of the 1987 Act provides:
“(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:
(a)the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(2)If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:
(a)the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).”

Submissions

The appellant submitted that, at the arbitration, it had been submitted that the discretion in s 44C(2) should be exercised and the Arbitrator failed to consider that submission.
The appellant contended that Mr Caddaye started work with the appellant on 24 March 2014 and had therefore been employed by the same employer for less than four weeks before the injury on 2 April 2014. In these circumstances, s 44C(2) provides that the pre-injury average weekly earnings may be calculated by having regard to the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum.
The appellant contended that, on the evidence of Ms Karen Anderson, which was that Mr Caddaye’s employment would have been terminated on 17 April 2014 regardless of the effects of the injury, Mr Caddaye could not reasonably have been expected to have earned any income from his employment with the appellant beyond that date. The Arbitrator failed to consider Ms Anderson’s evidence.
In the alternative, as there is no evidence of any employment or income from when Mr Caddaye attended with significant back complaints and indicated that he was applying for the Disability Support Pension on 13 June 2013, and when he started with the appellant on 24 March 2014, there is a strong inference that he would not have been physically able to continue that employment on a long term basis in any event.
The discretion in s 44C should therefore have been exercised against Mr Caddaye and any award should have been limited to the period up to 17 April 2014.
Mr Caddaye submitted that the appellant’s approach produces a grossly unfair result and, for that reason, the discretion in s 44C(2) should not be exercised.

Discussion and findings

I accept that the Arbitrator erred in not dealing with the appellant’s s 44C(2) submission. As this issue involves the application and interpretation of a statutory provision, its determination is not affected by any of the credit issues discussed earlier in this decision and neither side objected to me determining it. I do not accept the appellant’s submissions. My reasons are as follows.
The use of the modal verb “may” in sub-s (2) of s 44C carries with it a clear and general discretion. The provision may or may not apply, depending on the circumstances. There is nothing in the context or structure of the provision that suggests that it should be interpreted to mean “must” and, rightly, the appellant did not suggest that that interpretation should be applied.
Talking of the exercise of a general discretion, Bathurst CJ, Beazley P and McColl JA in Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130 made the following observation, at [30]:
“As Wilson J stated in FAI General Insurance [Company Ltd v Southern Cross Exploration NL [1988] HCA 13; 165 CLR 268] and Barwick CJ explained in Klein [v Domus Pty Ltd [1963] HCA 54; 109 CLR 467], where a discretion is conferred on the court in general terms, the court is required to exercise that discretion so as to ‘prevent injustice’ or in accordance with the judge’s view of the justness of the case.” (emphasis in original)
In the present case, accepting that Ms Anderson’s evidence is correct, and that Mr Caddaye’s employment with the appellant would have come to an end on 17 April 2014 in any event, would mean that, applying s 44C(2), Mr Caddaye’s pre-injury average weekly earnings would be nil or very close to it. That would result in him obtaining virtually nil weekly compensation, even if he succeeds on all issues that remain in dispute.
Assuming that Mr Caddaye’s claim is otherwise successful, that would be a gross injustice. In beneficial legislation, such as the workers’ compensation legislation, such a result should not be allowed, if an alternative approach is reasonably available on a fair reading of the legislation. An alternative approach is reasonably available in the present case. Namely, the usual approach to determining pre-injury average weekly earnings in ss 44 C(1), 44D and 44E.
Even if, regardless of whether he suffered his injury on 2 April 2014, Mr Caddaye’s employment with the appellant would have ended on 17 April 2014, that merely means that he would have returned to the labour market and (presumably) sought similar employment driving a scraper or grader. Applying s 44D(1)(b), the “relevant period” for Mr Caddaye is the period from 24 March 2014 to 2 April 2014. One then looks to s 44E to determine “ordinary earnings” for Mr Caddaye in a week in the relevant period.
There is no scope for the operation of the appellant’s alternative argument. It does not matter that Mr Caddaye applied for a Disability Support Pension in late 2013 or early 2014, which application was unsuccessful. There is no evidence that Mr Caddaye would not have been physically able to continue his employment with the appellant, but for the injury, and I reject the appellant’s submission that such an inference should be drawn. There is no evidence that Mr Caddaye had any difficulty doing his work from 24 March 2014 to 2 April 2014. The evidence of the long hours involved strongly suggests that he was coping with it.
It follows that once the issues discussed earlier in this decision have been determined, Mr Caddaye’s entitlement to weekly compensation is to be decided by applying the terms of the legislation, but without resort to s 44C(2).

CONCLUSION

The result is that the appeal has been partly successful. Save for the following:
(a)     the Arbitrator’s finding that Mr Caddaye’s bowel and bladder incontinence has resulted from his injury on 2 April 2014;
(b)     the injury to the thoracic spine (the fracture at T12);
(c)     the injury to Mr Caddaye’s lumbar spine, and
(d)     the s 60 expenses for the T12 fracture,
the Arbitrator’s determination of 11 August 2015 is revoked and the matter remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.
It is not for the Commission to prepare matters for parties. However, it should be reasonably clear from the above reasons that there are significant deficiencies in the evidence that should be addressed prior to the next hearing.

DECISION

The Arbitrator’s determination of 11 August 2015 is revoked and the matter remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.

Bill Roche
Acting President

7 December 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2015] NSWWCCPD 68

7 December 2015

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Assessment of Expert Evidence

Admissibility of Evidence

Credit Findings

Appeal