Duck v EB and De Bunt Pty Limited - [2020] NSWWCCPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Duck v EB and DE Bunt Pty Limited [2020] NSWWCCPD 11
APPELLANT:	Michael Duck
RESPONDENT:	EB & DE Bunt Pty Limited
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-3126/19
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	21 August 2019
DATE OF APPEAL DECISION:	9 March 2020
SUBJECT MATTER OF DECISION:	Extension of time; medical expenses pursuant to s 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Hanrahan, counsel
LHD Lawyers
Respondent:
Mr A Combe, counsel
Gair Legal
ORDERS MADE ON APPEAL:	1. The appellant worker’s application to extend the time for the filing of the Application to Appeal is granted and the time for filing the Application is extended to 19 September 2019. 2. The Arbitrator’s Certificate of Determination dated 21 August 2019 is confirmed.

INTRODUCTION

This is an appeal from an Arbitrator’s decision of 21 August 2019 declining to award compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) with respect to a claim for surgical release of bilateral carpal tunnel.

CERTIFICATE OF DETERMINATION

On 21 August 2019 the Commission, pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), issued a Certificate of Determination in the following terms:
“The Commission determines:
1. There is an Award for the respondent with respect to the Applicant’s claim for injury to the right and left wrists in the form of bilateral carpal tunnel syndrome.
2. There is an Award for the respondent with respect to the claim for proposed bilateral carpal tunnel release.”[1]
[1] Duck v EB & DE Bunt Pty Ltd [2019] NSWWCC 279 (Reasons).
The appellant seeks an order revoking the determination in Order 2, and a further order that the surgical treatment sought by the appellant, namely bilateral carpal tunnel surgery, is reasonably necessary as a result of the injury sustained to his right forearm and elbow in August 2017.

BACKGROUND FACTS

The appellant, Michael Duck, sustained injuries in August 2017 when he fell during the course of his employment with the respondent, EB & DE Bunt Pty Limited.
It is common ground that Mr Duck sustained some injury on that day. The Arbitrator held, accepting the appellant’s oral evidence, that Mr Duck fell and landed on both his hands and his right elbow.
The appellant first consulted his general practitioner, Dr Ruthnam, in respect of his injuries on 21 September 2017.
The appellant consulted Dr Marshall, orthopaedic surgeon, in November 2017.
The appellant consulted the attending physiotherapist, Mr Robinson, on 27 November 2017.
On 5 June 2018 Dr Marshall requested approval to fund a bilateral carpal tunnel release procedure.
The insurer refused to approve funding for the procedure.

THE ARBITRATOR’S STATEMENT OF REASONS

The Arbitrator identifies at paragraph [2] of the Statement of Reasons the areas of dispute between the parties namely (1) whether the appellant suffered injury(ies) to the left or right wrist and/or median nerve carpal tunnel syndrome; (2) the respondent’s contention that while the surgery might be reasonably necessary it is not the result of the injury in August 2017.
The Arbitrator determined each issue adversely to the appellant. There is no appeal from the determination that the appellant did not sustain injury to either wrist in August 2017.
The appeal challenges the order and finding that the need for the proposed bilateral carpal tunnel surgery did not result from the injury in August 2017.
The Arbitrator summarised the evidence and made relevant findings, namely:
“60. I am not satisfied that the applicant has discharged his onus to establish a personal injury for the purpose of section 4(a) of the … Workers Compensation Act 1987 (the 1987 Act) for the following reasons.
61.    I proceed on the acceptance of the applicant’s version presented orally, that is that he fell downwards and landed on both his hands and his right elbow. However, regardless of the mechanism of injury, the medical evidence does not support the causal connection between the fall and the diagnosis of bilateral carpal tunnel syndrome with sufficient clarity to discharge the applicant’s onus.
…
63.    Whether or not the applicant had blood on his hands following the fall, it is clear that he did not present for any medical treatment for a considerable time after the injury, said to have occurred in August 2017. The first such attendance was upon Dr Ruthnam on 21 September 2017. On that occasion and all occasions for many months thereafter Dr Ruthnam only referred to the lateral epicondyle without any mention of symptoms of numbness, pain or anything else involving the hands and wrists.
64.    The same can be said for Mr Robinson, the physiotherapist, who the applicant first saw on 27 November 2017. Mr Robinson, however, added the impression of ‘very minor radial tunnel signs’ at that time. He also thought there was ‘thoracic biomechanics likely amplifying pain’. This clinical picture remained Mr Robinson’s description on numerous examinations and records thereafter.
65.    Dr Ruthnam also identified radial tunnel symptoms, quite early.
66.    The applicant himself, in his statement, which in this respect was not altered in any way by the oral evidence, said that the initial symptoms (that is the right elbow) got worse with time while he continued work, and that ‘over the next few months my symptoms became worse and I then started to develop paraesthesia effecting both hands and more so on the right’. This would suggest that the onset of any hand or wrist complaint did not occur until several months after the injury. This is a significant factor when I am asked to determine the direct cause or link between the frank injury and the onset of the pathology sought to be treated. I am not dealing with a situation where the condition is a secondary or consequential condition. Nor has the applicant presented a case to the effect that the subsequent work following the injury was a contributor to the development of his hands and wrist pathology.
67.    On the basis of the electrical studies and the ultimate acceptance by Dr Marshall of the diagnostic corroboration of those symptoms, I am satisfied that the applicant probably does have bilateral Carpal Tunnel Syndrome.
68.    Whilst Dr Marshall somewhat belatedly connects the Carpal Tunnel Syndrome to the fall (especially on the right side), he does not explain with sufficient clarity what the clinical picture was at any time during his care.
69.    Clearly however, at the early presentations, the symptoms were consistent with radial tunnel involvement, but he does not say what the symptoms were. Relevantly, these symptoms were that there was pain ‘up the arm and then down towards the hand area’, and in April 2018, that the applicant ‘mentioned a little bit of numbness, possibly down in the hand area, but he is not very clear and specific where that is and how often’. He later said the applicant had ‘some features that could be explained by radial tunnel syndrome’. One would have thought that closer questioning was required, given that he was still then working with an impression of radial tunnel syndrome.
70.    In September 2018, following the discovery of the carpal tunnel condition Dr Marshall expressed surprise that the insurer denied funding for treatment ‘because Michael certainly did mention his hand numbness he was getting at the very first presentation and I was alarmed enough to suspect carpal tunnel in which we ordered a carpal tunnel test’. This [is] not consistent with Dr Marshall’s historical reports. He suspected radial tunnel involvement when referring the applicant for electrical tests. The inference that can be readily made is that radial tunnel symptoms may involve hand numbness, and that the symptoms are not the same as median nerve entrapment as in carpal tunnel syndrome.
71.    After the electrical studies, Dr Marshall medico-legally explains that the applicant had ‘classic clinical features of numbness and paraesthesia in his fingers that are particularly worse at nighttime, clinical symptoms then accepted as consistent with carpal tunnel syndrome.
72.    Nevertheless, the matter may still possibly have been clarified by more focused medicolegal opinion, given the delay in the onset (probably of months) of the paraesthesia as described by the applicant himself, and the lack of comparison of the relevant radial nerve symptoms with median nerve symptoms. However, this did not occur.
73.    On the basis of this analysis by the applicant’s expert, I am left to assume the precise presenting symptoms (thought by three separate practitioners to indicate radial tunnel syndrome), and marry those with whatever symptoms Dr Marshall later accepts to be consistent with the early presentation. On the face of the documents, even with favourable inferences, I am unable to do so without becoming the expert myself.
74.    Also of minor but not determinative significance, and a reason for the clarification I sought from the applicant’s legal representative regarding whether the applicant’s reliance was only on the frank injury as the cause, is Dr Marshall’s clinical report in September 2018, where he opined that ‘one could assume that all the extra work and lifting he was doing with his left hand while his right elbow recovered could have exacerbated carpal tunnel features on the left side’.
75.    The issue that causes me greatest difficulty is the question of whether or not that pathology is the result of the injury to the hands and arms (or a direct result of the elbow injury (reminding myself a secondary condition is not claimed)). Dr Marshall was clearly focused on the right lateral epicondyle initially and for some time thereafter. Clinically, however, he identified potential radial tunnel involvement. That much can be accepted clinically.
76.    When he referred the applicant for electrical studies in May 2018 for investigation of the Radial Tunnel Syndrome, at no time does Dr Marshall explain the nature of the symptoms and signs which lead him to conclude that there was potential radial tunnel involvement. Similarly, he does not explain why, on the basis of the electrical studies only, he is able to rely on the complaints of the applicant’s hand symptoms as confirming that diagnosis, when the median nerve had never been mentioned before the electrical studies.
77.    This, in my view, is a matter for expert evidence and the applicant has not gathered that evidence to present to the Commission. Although the Commission is an expert Tribunal, it is not for me to declare knowledge of, or investigate the symptoms and signs relevant to Radial Tunnel Syndrome, and compare that with similarly self-sourced symptoms and signs for Carpal Tunnel Syndrome. It is also not for me, even if I were to do that, to compare and contrast the clinical signs for each pathology in order to explain Dr Marshall’s apparent oversight of the carpal tunnel presentation from early on. Because that presentation is a matter upon which Dr Marshall heavily relies, I am unable to accept his retrospective explanation of the causal chain.
78.    I consider each of the following equally plausible: the applicant suffered carpal tunnel injury in the incident (albeit, with delayed onset of symptoms); he developed the condition due to events after the injury, or as a consequence of the injury to the elbow; or he simply developed the condition idiopathically. That is insufficient to discharge the onus: Luxton; Flounders.[[2]]
…
80.    I do not accept that the clinical records are, ‘riddled with errors’, although I note the caution required when relying upon them. The difficulty is, if errors exist, the applicant has not requested the doctors to rectify them.
81.    Mr Hanrahans’ submission that the need for the treatment still ‘results from’ the elbow injury and if it be necessary, the employment fall is still a substantial contributing factor to the carpal tunnel syndrome cannot be accepted. It was not the case the applicant presented. The case was of a direct injury to the wrists in the form of carpal tunnel syndrome. In any event, Dr Marshall’s hope that addressing the carpal tunnel syndrome may also remedy the elbow is mere conjecture.
82.    I would note that I am not critical of the applicant not mentioning hand symptoms early. He has been open about that in his own evidence. The symptoms did not appear until sometime after injury.
83.    Because Dr Marshall is, in essence, the only expert providing any explanation as to the cause of the pathology as a result of the accident, it follows that I do not accept the applicant has discharged his onus and there will be an award for the Respondent.” (emphasis in original)
[2] Luxton v Vines [1952] HCA 19; 85 CLR 352; Flounders v Millar [2007] NSWCA 238.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

The appellant says that the amount involved is $9,959. The respondent does not dispute that the amount of compensation at issue on the appeal is at least $5,000. Accordingly, s 352(3) of the 1998 Act is satisfied.

EXTENSION OF TIME

Section 352(4) of the 1998 Act provides that an appeal pursuant to s 352 “can only be made within 28 days after the making of the decision appealed against”. The Certificate of Determination is dated 21 August 2019. The Application to Appeal Against a Decision of an Arbitrator was required to be filed no later than 18 September 2019.
The appellant filed a non-compliant appeal document on 17 September 2019. The document was rejected on 18 September 2019. The appellant refiled the appeal application on 19 September 2019, essentially one day late.
The appellant makes the following submission in support of an application for extension of time:
“The application was determined on 21 August, 2019. An Application to Appeal from the Decision of an Arbitrator was lodged with the Commission on 17 September, 2019.
The initial Application was filed within 28 days of the date of the decision as required by s 352(4) of the [1998 Act].
A Direction was then issued by the Registrar who required certain procedural matters to be compliant with Practice Note 6 and returned the papers unsealed.
The Appellant then (without altering the substance of the Submissions) added appropriate Headings and a List of Authorities, as required.
It is submitted that there are exceptional circumstances in this case where the compliance required was purely for procedural reasons. The issue at stake is of significance generally.
It is further submitted that the interests of justice ought not be defeated by mere procedural requirements. It is submitted the merits of the Appellant’s claim, if successful would not be a severe burden on the Respondent while providing significant relief to the worker.”
The respondent in its initial submission made no complaint about time. However, it was obvious that the submission was premised on an incorrect date.
In view of the obvious error, I issued a Direction requesting further submissions. The respondent and the appellant each made additional submissions.
The respondent submitted that although the existence of an “exceptional circumstance” is not a precondition to an extension of time to appeal; it is nevertheless a matter to be taken into account when assessing whether an extension should be granted and the absence of an exceptional circumstance may militate against an extension of time.[3]
[3] Citing Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159.
Characterising the explanation for the Application being out of time as the appellant’s solicitor’s failure to comply with Practice Direction No 6 “and the non-compliance within time (as) an administrative error”, the respondent submitted that there were no exceptional circumstances.
Further the respondent submitted that the appeal did not have reasonable prospects of success.
In submissions dated 24 February 2020, the appellant submitted that the delay was minimal; there was no evidence of prejudice to the respondent and the interests of justice were best served by extending the time for appeal.
The present rule (from 3 October 2019) is r 16.2(5) however the relevant rule as at 19 September 2019 was r 16.2(12) of the Workers Compensation Commission Rules 2011, which provided:
“The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The principles relevant to an extension of time are well understood, having most recently been considered by the President in Broadspectrum Australia Pty Limited v Skiadas.[4]
[4] [2019] NSWWCCPD 31 (Skiadas), [17]–[26].
The President referred to Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited[5] where the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a)     the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success of the proposed appeal.”
[5] [2014] NSWCA 34, [9].
In the present matter, the appellant’s advisers lodged a non-compliant application to appeal within time. The document was rejected and a compliant document lodged on 19 September, one day out of time.
The extent of the delay was minimal. The delay does not appear to be due to a default on Mr Duck’s part. The procedural conduct of the proceedings was in the hands of his solicitors. It is a very serious matter to bar a litigant’s right to appeal for what in my view was a trivial delay.
I cannot see that a one day delay results in any significant prejudice to the respondent. The respondent properly does not assert the contrary.
The appeal does have prospects of success, although those prospects are not overwhelming. The difficulty, as I see it, is the exceptional circumstance(s) requirement of rule 16.2. The appellant’s submission that the exceptional circumstance in this case is satisfied because the “compliance required was purely for procedural reasons” is without merit. Compliance with procedural requirement(s) is regular, routine and usually encountered in the course of any legal practice[6] and does not in my view qualify as an exceptional circumstance.
[6] Yacoub v Pilkington (Australia) Limited [2007] NSWCA 290, [66].
The President in Skiadas noted at [20] that the presence of exceptional circumstances is not a precondition of the exercise of the discretion.
Although the circumstances are not compellingly “exceptional”, nevertheless I am satisfied that they are sufficiently out of the ordinary course, special and not common, to justify extending the time.
I am particularly persuaded by the trivial period of delay and the demonstrable and substantial injustice which would be visited upon the appellant who is himself without fault if he was prevented from agitating the appeal.

I accordingly extend the time for the filing of the Application to Appeal to 19 September 2019.

GROUNDS OF APPEAL

The appellant relies upon the following grounds of appeal:
(a)    Ground 1: The Arbitrator erred at law and misdirected himself when he found that a claim for the cost of carpal tunnel syndrome to the wrists is not reasonably necessary, by requiring that such need must be a “result” of personal injury (s 4(a) of the 1987 Act) to the worker’s wrists.
(b)    Ground 2: The Arbitrator erred at law by rejecting the evidence of Dr Marshall as “mere conjecture”.
(c)    Ground 3: The Arbitrator erred in law by failing to provide adequate reasons or adequately deal with the issue of whether the surgery to the wrists was reasonably necessary as a result of the injury to the elbow and forearm.
(d) Ground 4: The Arbitrator erred by not properly considering the accepted test for determining the need for medical treatment pursuant to s 60 of the 1987 Act.
(e)    Ground 5: The Arbitrator erred at law by failing to determine whether the accepted elbow injury provided a material contribution to the need for wrist surgery.

SUBMISSIONS IN SUPPORT OF THE APPEAL

The appellant filed submissions dated 18 September 2019 in support of the Appeal and further submissions on 22 and 25 October 2019. The respondent filed comprehensive submissions in response.
I have considered the parties’ written submissions filed in the matter. I intend no discourtesy by referring to them in an abbreviated manner.
The first set of submissions summarise in paragraph [6], the essence of the appellant’s case, namely:
“[A]lthough a finding of injury to the wrists would provide a proper justification to undertake a procedure to the wrists in an appropriate case, it was not necessary to determine injury to the wrists, in this case, in order to make a finding that surgery to the wrists was reasonably necessary as a result of injury to the right forearm and elbow.”
The second “further” submissions filed 22 October 2019 at paragraphs [1] to [15] inclusive, provide detailed submissions more appropriately directed to the Arbitrator and provide little assistance in support of the appeal.
The substance of the submissions appears to me to be in paragraphs [16] to [18] as follows:
“16.   The Arbitrator proceeded on the assumption that the worker had to prove injury to his wrists before any treatment to the wrists could be justified. This is too stringent a test. It was the Applicant’s case however, as acknowledged by the Arbitrator [at paragraph 49(k)] that the need for treatment ‘still results from that [elbow] injury’.
17.    It was not necessary to decide ‘substantial contributing factor’. It was only necessary to decide as a factual question whether the elbow injury (or events related to the fall) had made a ‘material contribution’ to the need for wrist surgery. See Murphy v AllityManagement Services Pty Limited [2015] NSWWCCPD 49 at paragraph [58].
18.    The Appellant asserts that the evidence of Dr Marshall satisfies this test by showing how his differential diagnosis of the consequences of the fall (at least to the common extensor tendon) required surgical investigation of the wrist and associated symptoms, in the forearm.”
The appellant’s further submissions dated 25 October 2019 provide additional paragraphs, that again seem to me to be submissions which ought to have been made to the Arbitrator. As these submissions do not identify error or provide support for any of the grounds of the appeal they need not be referred to further.
The respondent submits that because the appellant does not challenge the determination that the condition in the bilateral wrists does not result from an accepted incident involving personal injury and, further, that he does not challenge the finding that any proposed surgery does not result from direct injury to the wrist, the appeal on this ground must fail.
The respondent further submits that the appellant’s claim was that he had sustained injury to the left and right wrist by way of bilateral carpal tunnel syndrome in the fall and that he did not rely on any secondary injury or consequential condition. “As such the appellant bore the onus of establishing the pathology by way of bilateral carpal tunnel syndrome was as a result of the fall in August 2017 and not as [a] result of extra work and lifting while the right elbow recovered.”
The respondent submits with particular reference to Ground 1 of the appeal:
“11.   This change of case is apparent from the Submissions filed with the Commission dated 17 September 2019 at paragraph [6] that the ‘justification offered by Dr D Marshall for the procedure proposed on the carpal tunnels, even in the absence of direct injury to the wrists was reasonably necessary. This is an allegation of a consequential loss and adopts the opinion of Dr Marshall in the report dated 4 September 2018 which stated that ‘One could assume that all the extra work and lifting he was doing with his left hand while his right elbow recovered could have exacerbated carpal tunnel features on the left side’. This opinion was speculative and with expansion may have possibly supported a consequential loss claim but as the arbitrator made clear at arbitration such a claim was not made. The use of the words ‘One could assume’ in the report confirms the arbitrator’s criticism of the applicant’s evidence lacking ‘sufficient clarity to discharge’ the onus. The opinion of Dr Marshall in the report dated 6 February 2019 at paragraph 7 stated the carpal tunnel syndrome was as a direct result of the fall of August 2017 without providing a scientific basis for this statement or addressing the fact the carpal tunnel syndrome did not manifest for some months. This opinion also contradicted the earlier opinion in the report dated 4 September 2018 which assumed a possible consequential loss. The doctor’s opinion as to causation therefore did not have any weight.
…
13.    The Respondent submitted that the opinion of Dr Marshall as to causation expressed in the report dated 6 February 2019 was contingent on accepting the appellant’s version of events of the mechanism of injury. … The Arbitrator proceeded on an acceptance of the appellant’s evidence presented orally, that is he fell downwards and landed on both hands and his right elbow. However, and regardless of the mechanism of injury the medical evidence did not support a causal connection between the fall and the diagnosis of bilateral carpal tunnel syndrome ‘with sufficient clarity’ to discharge the onus.
14.    … The appellant’s Submissions and Further Submissions do not take issue with the arbitrator’s findings that the appellant’s own evidence was that his right elbow symptoms worsened and he then developed paraesthesia of both hands suggesting the onset of symptoms some months ‘after the injury’. This was a ‘significant factor’ in determining causation which was central to the first issue to be determined, that of ‘injury’. The appellant’s failure to address this ‘significant factor’ means the appeal must fail.
15.    … There is no evidence the carpal tunnel release surgery was proposed by Dr Marshall as a diagnostic procedure as the appellant contends. Dr Marshall’s report dated 6 February 2019 at paragraph 8 refers to the carpal tunnel release surgery as being performed to ‘to try to relieve the pressure off his median nerve’. What Dr Marshall did not address to the satisfaction of the arbitrator was the cause of the carpal tunnel syndrome.
…
17.    The appellant’s reliance on Murphy v Allity Management Services Pty Ltd is misguided. That case involved a dispute about right shoulder surgery performed on 8 December 2014 where the liability was accepted for the right shoulder injury as part of a workplace injury dated 29 June 2014. At issue was the causation between the surgery and the accepted injury, causation to be assessed on a common-sense basis. However, the right shoulder was accepted as being injured in the course of employment. The facts of that case are distinguishable from this matter as ‘injury’ to the left and right wrists in August 2017 for the purposes of s 4(a) of the 1987 Act is in dispute. There is no error established in rejecting the allegation of ‘injury’ and as such the reasoning of Murphy v Allity Management Pty Ltd is not applicable to this appeal.” (emphasis in original)

CONSIDERATION OF THE GROUNDS OF APPEAL

Ground One: The Arbitrator erred at law and misdirected himself when he found that a claim for the cost of carpal tunnel syndrome to the wrists is not reasonably necessary, by requiring that such need must be a “result” of personal injury (s 4(a) of the 1987 Act) to the worker’s wrists

Initially, it is necessary to consider the respondent’s submission that the appellant in Ground 1 of the appeal seeks to make a case different from that advanced before the Arbitrator. For the reasons that follow I reject that submission.
The appellant made the following submission recorded at [49(k)] of the Reasons of the Arbitrator:
“Even if the Carpal Tunnel Syndrome is not the direct result of the fall onto both hands and wrists, the need for treatment still ‘results from’ that injury and if it be necessary, the employment fall is still a substantial contributing factor to the Carpal Tunnel Syndrome.”
Contrary to the respondent’s submission, it was part of the appellant’s case for determination by the Arbitrator that the need for surgical therapy on the carpal tunnels resulted from the injury of August 2017.
This Ground of Appeal is confined to an asserted error of law and misdirection leading to an erroneous conclusion of fact, namely that the claim for the cost of the surgery should not be allowed. However, neither the text of Ground 1 of the Appeal nor the submissions formulate in a precise manner the legal challenge made by the appellant.
As formulated, the complaint is that the Arbitrator adopted an incorrect statutory test (“requiring that (the need for surgery) must be a ‘result’ of personal injury (s 4(a) of the 1987 Act) to the worker’s wrists”).
The appellant’s submissions do not identify where in the Arbitrator’s Statement of Reasons he formulates the relevant statutory test.
At Paragraph [60] where the Arbitrator disposes of part of the case he says:
“I am not satisfied that the applicant has discharged his onus to establish a personal injury for the purpose of section 4(a) of the … Workers Compensation Act 1987 (the 1987 Act) for the following reasons.”
The Arbitrator was there expressing a conclusion that the evidence did not persuade him that the worker had established injury to the wrists. That this is so is apparent from the statement at paragraph [2] of the Statement of Reasons that “there is no dispute that the applicant suffered an injury on that day. However the respondent says that such injury(ies) did not include the left or right wrists, or in the context of this dispute, the median nerve or carpal tunnels.”
The discussion at paragraphs [51] to [59] of the Statement of Reasons makes clear that the Arbitrator was concerned with the “sufficiency” of the evidence to discharge the onus of proof resting on the appellant. To succeed on what I perceive was the appellant’s first case, he needed to establish that he had sustained an injury to the right or left wrists in the form of bilateral carpal tunnel syndrome.
The Arbitrator found that the appellant had not discharged the onus of proof on this issue. The determination in Order 1 in the Certificate of Determination reflects this conclusion. Because the appellant does not challenge the first determination in the Certificate of Determination, Ground 1 of the appeal must fail. The respondent’s submissions summarised at paragraphs [46]–[47] above are correct.
Whether a tribunal tasked with finding facts is “satisfied” or persuaded by the evidence is a question of fact which if erroneous is an error of fact[7] not law. The appellant does not challenge the finding at paragraph [60] of the Statement of Reasons as an error of fact. Understood in the context of the Arbitrator’s decision, Ground 1 of the Appeal does not raise an error of law or misdirection.
[7] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156A.
The appellant’s submissions recorded at paragraphs [41] and [43] above do not identify an error of law or misdirection because they relate to causation which is itself a question of fact. To this extent the submissions are not reasonably to be regarded as coming within language used in Ground 1.
However, as the submissions reflect the appellant’s alternative case put at the arbitration hearing recorded in the reasons at [49(k)] I propose to deal with the submission.
In my view, the Arbitrator’s determination adverse to the appellant was based on his rejection as a matter of fact of the evidence as to causation of Dr Marshall.
The Arbitrator did not get to the stage of applying the legal test to the facts because he rejected the central hypothesis of fact supporting the appellant’s claim. The relevant evidence is outlined hereunder.
The Arbitrator accepted the version of the evidence given orally by the appellant.[8] He accepted furthermore that the appellant probably had bilateral carpal tunnel syndrome.
[8] Reasons, [61].
The Arbitrator rejected Dr Marshall’s explanation for the connection between the carpal tunnel syndrome and the fall.[9]
[9] Reasons, [68]–[77].
The Arbitrator at paragraph [38] of his Statement of Reasons quoted in part from a report by Dr Marshall:
“I am quite surprised to see this because Michael certainly did mention his hand numbness he was getting at the very first presentation and I was alarmed enough to suspect carpal tunnel in which we ordered a carpal tunnel test.
The majority of his symptoms and pain were certainly at the elbow region that the lateral epicondylitis is and hence I think everyone has been more focused on that but his mechanism of injury and his initial symptoms he has now told me he had from the very first day is certainly consistent with carpal tunnel syndrome. His nerve conduction supports that as well. He denies any symptoms prior to the injury and he denies symptoms in his left hand prior to the injury. One could assume that all the extra work and lifting he was doing with his left hand while his right elbow recovered could have exacerbated carpal tunnel features on the left side.” (emphasis added)
The first presentation to Dr Marshall was 29 November 2017. In the underlined passage, Dr Marshall is saying that he was later told by Mr Duck that he had had symptoms from the very first day. The symptom of most relevance to Dr Marshall in this report is “hand numbness”. Dr Marshall attaches significance to the information that he was “now” told that Mr Duck had that symptom from the “very first day”.
On the view most favourable to the worker, Dr Marshall had belatedly received a history of numbness from the day of injury.
Mr Duck in his statement does not mention “numbness”. The symptom he relates is “paraesthesia”:
“I initially thought I had only bruised my right elbow but it got worse and worse with time as I continued to try and work. Over the next few months my symptoms became worse and I then started to develop paraesthesia affecting both hands more so the right. I worked up until about September 2017 until I was unable to continue due to my injuries. I have not returned to work since then.”[10]
[10] Mr Duck’s statement dated 11 June 2019, Application to Resolve a Dispute, p 1, [8].
In his statement, Mr Duck’s evidence was therefore that he developed “paraesthesia” as his symptoms became worse over “the next few months.”
“Numbness” and “paraesthesia” are different symptoms.
Mr Duck’s oral evidence did not deal with the issue of “numbness”. He gave no evidence as to when he first experienced this symptom.
The only evidence concerning when the “numbness” in the hand first commenced is in Dr Marshall’s report.
Section 354(2) of the 1998 Act permits the Workers Compensation Commission to rely as evidence of the fact of the histories contained in medical reports. However, the Commission must be satisfied of their relevance and correctness.
In this matter, the Arbitrator did not accept that part of the history obtained by Dr Marshall that related to when Mr Duck first experienced numbness in the hands. It was open to him to reject that part of the evidence.
Dr Marshall relied on the part of the history not accepted by the Arbitrator for his opinion on the causal relationship between the August 2017 injury and the need for the bilateral carpal tunnel surgery.
The respondent’s submission at paragraph [14] (quoted at [47] above) is essentially correct.
When Mr Duck developed the symptoms of paraesthesia and numbness was significant in the determining causation.
Mr Duck developed paraesthesia some months after the accident. The late development of this symptom militated against the August 2017 injury causing this symptom.
The Arbitrator accepted that Mr Duck had numbness but he did not accept that he had it from the date of the accident in August 2017 as recorded by Dr Marshall.
It followed that the factual underpinning of Dr Marshall’s hypothesis on causation was not supported by the evidence and that Dr Marshall’s theory on causation should be rejected.
It was not a case of the Arbitrator applying an incorrect statutory test. It was a simple case in which the evidence advanced by the appellant did not persuade the Arbitrator.
Neither legal error nor misdirection as contended for in Ground 1 of the appeal has been made out. Ground 1 of the appeal is dismissed.

Ground Two: The Arbitrator erred at law by rejecting the evidence of Dr Marshall as “mere conjecture”

Ground Three: The Arbitrator erred in law by failing to provide adequate reasons or adequately deal with the issue of whether the surgery to the wrists was reasonably necessary as a result of the injury to the elbow and forearm

It is apparent from the submissions that these two grounds are related. It is appropriate to emphasise that the complaint is that the Arbitrator’s decision is flawed by legal error.
The Arbitrator did not reject Dr Marshall’s evidence. Dr Marshall’s reports were admitted into evidence. The Arbitrator did not accept the accuracy of the history contained in the reports. It is misleading to describe this as “rejecting the evidence of Dr Marshall”.
It is difficult to establish legal error where the fact finder has not rejected the evidence but has declined to accept the opinion contained in the report. Dr Marshall’s report and opinion were before the Arbitrator. What the appellant really complains about is that the Arbitrator did not accept the opinion.
Ground 2 mis-states the Arbitrator’s reasons.
The relevant passage appears at Paragraph [81] of the Statement of Reasons, where the Arbitrator records: “In any event, Dr Marshall’s hope that addressing the carpal tunnel syndrome may also remedy the elbow is mere conjecture.”
That with respect is a fair statement having regard to the passage quoted by the Arbitrator at paragraph [40] of his Reasons.
Dr Marshall recommended that he “initially start with a carpal tunnel release surgery to try and relieve the pressure off his median nerve … I do not expect the carpal tunnel surgery to make any difference at all to his lateral elbow pain, as this condition is not made worse or better by carpal tunnel surgery.”
The language used by Dr Marshall is inherently speculative: “try and relieve the pressure on the median nerve”. Furthermore, the proposed surgery was not calculated to relieve pain in the elbow. It was the injury to the elbow that was not disputed but the proposed surgery was not therapeutic for that injury.
Ground 2 is advanced as an error of law but, with respect, as formulated this ground could only be an error of fact. But in any event, there is no error of law or fact.
Ground 2 of the appeal is not made out and is dismissed.
The appellant’s submissions in support of Ground 3 dated 18 September 2019, complain that the Arbitrator did not deal with the factual legal question of diagnosis and did not “properly consider alternative bases” for an award in the worker’s favour.[11]
[11] Appellant’s submissions dated 18 September 2019, [19].

There are further submissions imprecisely targeted at the subject matter identified in this ground of appeal in the appellant’s additional submissions dated 22 October 2019 (paragraphs [3], [4], [7], [11]) and 25 October 2019 (paragraphs [10], [17], [19]). However, only the last mentioned paragraph really complains about the adequacy of the reasons in that it suggests the Arbitrator may not have explained the reasoning process based on the evidence before him.
Section 294(2) of the 1998 Act requires the Arbitrator to provide a “brief” statement of reasons. There is no further guidance provided by the legislation as to the appropriate content.
The principles relevant to an assessment of the adequacy of the reasons for a decision by a judicial officer are discussed in Beale v Government Insurance Office of NSW[12] where Meagher JA said there are 3 fundamental elements:
(a)    refer to the relevant evidence;
(b)    set out the material findings of fact or ultimate findings of fact, and
(c)    provide reasons for making the relevant findings of fact and in applying the law to the facts as found.
[12] (1997) 48 NSWLR 430 (Beale), 443.
Importantly, where reasons are shown to be inadequate, the Court will not necessarily intervene: Beale at 444 where Meagher JA said “… an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice”.
The appellant’s complaint is that the reasons were not sufficient to explain the rejection of Dr Marshall’s evidence as “mere conjecture”.[13] However, for the reasons set out above, with respect to Ground 2 of the appeal, the Arbitrator’s reasons reflect a speculative view of the proposed remedy’s efficacy, that is in my view justified by Dr Marshall’s report.
[13] Appellant’s submissions dated 18 September 2019, [19].
The reference to the taking of “judicial notice” in paragraph [7] of the appellant’s submissions dated 22 October 2019 is not to the point. The passages from the submissions at the hearing quoted at paragraphs [5]–[6] do not advance the appeal. The Arbitrator’s point is that the evidence did not enable him to determine (if he needed to determine) whether the symptoms were to be attributed to the diagnosis of “radial tunnel syndrome in the hands and wrist” or carpal tunnel findings.[14]
[14] Transcript of Proceedings, Duck v EB & DE Bunt Pty Ltd (WCC, [2019] NSWWCC 279, Arbitrator Egan, 16 August 2019) (T) 49.1–5.
The Statement of Reasons fulfils the requirements of s 294(2) of the 1998 Act and satisfies the fundamental essentials for judicial exposition of reasons outlined above. In my view, no inadequacy of reasons is demonstrated.
Ground 3 of the appeal is not made out and is dismissed.

Ground Four: The Arbitrator erred by not properly considering the accepted test for determining the need for medical treatment pursuant to s 60 of the 1987 Act

The passage complained of appears in the Statement of Reasons at paragraph [81].
The Arbitrator there reflects and rejects counsel submission. The appellant’s case at the arbitration was that he was entitled to the proposed surgery on alternative bases: “whether or not the applicant suffered any frank injuries to either wrist in the fall”;[15] and “whether the proposed bilateral carpal tunnel surgery is reasonably necessary as a result of injuries sustained [in] the fall in ‘August 2017’”.[16]
[15] T1.36, Reasons, [5].
[16] Reasons, [5].
The Arbitrator rejected the first case presented by the appellant and this led to Order 1 in the Certificate of Determination. There is no application to appeal from that order.
The second case presented by the appellant at the arbitration was also rejected. This second case was not rejected because the claim did not satisfy the statutory test for an award of s 60 expenses. The second case was rejected because the Arbitrator did not accept Dr Marshall’s hypothesis as to causation. The Arbitrator did not misapply the statutory test for an award of s 60 expenses.
The facts as found did not satisfy the statutory test in section 60. The proposed surgery was not reasonably necessary as a result of the injury received by the worker in August 2017.
The paragraphs immediately above dispose of Ground 4 of the appeal.
However, the appellant’s submissions in support of this ground make a slightly different point.[17] The appellant submits that the Arbitrator applied an incorrect test by enquiring whether the incident was a substantial contributing factor to the frank injury to the wrist at the time of the incident.
[17] See appellant’s submissions dated 18 September 2019, [22]–[25].
The appellant does not identify where in the Statement of Reasons the Arbitrator is said to have done this. At paragraph [49] above, I record the appellant’s submission at the hearing that even if the Arbitrator rejected the appellant’s claim of injury to the wrist “the employment fall is still a substantial contributing factor to the Carpal Tunnel Syndrome”.
At paragraph [81] the Arbitrator says that he cannot accept that submission. He does not accept that the employment fall is still a substantial contributing factor to the carpal tunnel syndrome because “it was not the case the applicant presented. The case was of a direct injury to the wrists in the form of carpal tunnel syndrome.”
The Arbitrator decided the s 60 claim on the basis that direct injury to either wrist was not made out and he was not satisfied that he could accept Dr Marshall’s hypothesis of the need for surgery being due to the injury to the elbow.
The submissions at paragraphs [16]–[17] of the submissions dated 22 October 2019 do not identify where the Arbitrator is alleged to have made an assumption that the worker had to prove injury to his wrist before any treatment to the wrist could be justified. In my view, the Arbitrator dealt with the worker’s case as it was presented. It was either a case of direct injury to the wrists or an alternative case, that the employment fall was nevertheless a substantial contributing factor to the need for surgery. He said that he did accept either case.[18] I see no error in his conclusion.
[18] See Reasons, [81].
For the reasons previously advanced, Ground 4 of the appeal is not made out and is dismissed.

Ground Five: The Arbitrator erred at law by failing to determine whether the accepted elbow injury provided a material contribution to the need for wrist surgery

Ground 5 is expressed as an error of law, namely that the Arbitrator failed to determine whether the accepted elbow injury provided a material contribution to the need for wrist surgery.
The written submissions of 18 September 2019 deal with this at paragraphs [26]–[28], those of 22 October 2019 at paragraphs [17]–[18], the submissions of 25 October 2019 address this ground paragraphs [15]–[19].
The only evidence to support the proposition that the fall of 17 August 2017 made a material contribution to the need for wrist surgery was that of Dr Marshall. That evidence was rejected.
It is not correct to say the Arbitrator failed to make a determination. Dr Marshall’s evidence was the only evidence to support the hypothesis that the need for wrist surgery was a result of the elbow injury. That evidence was rejected.[19] It followed that the issue was determined adversely to the appellant.
[19] Reasons, [83].
Ground 5 of the appeal is not made out and is dismissed.

DECISION

The appellant worker’s application to extend the time for the filing of the Application to Appeal is granted and the time for filing the Application is extended to 19 September 2019.
None of the grounds of appeal have been made out.
The Arbitrator’s Certificate of Determination dated 21 August 2019 is confirmed.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

9 March 2020