Elsamad v Belmadar Pty Ltd - [2019] NSWWCCPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Elsamad v Belmadar Pty Ltd [2019] NSWWCCPD 22
APPELLANT:	Hisham Elsamad
RESPONDENT:	Belmadar Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4156/18
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	23 November 2018
DATE OF APPEAL DECISION:	28 May 2019
SUBJECT MATTER OF DECISION:	Burden of proof – consideration of the phrase “comfortably satisfied” – Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 discussed; proof of an injury in the nature of an aggravation of a disease pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 – Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 applied; failure to evaluate relevant evidence – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Masselos & Co Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination at paragraph 2 of the Certificate of Determination dated 23 November 2018 is revoked. 2. The Arbitrator’s orders at paragraph 2 and 3 are revoked. 3. The remaining order and determinations are confirmed. 4. The matter is remitted to a different arbitrator for re-determination of the outstanding issue as to whether the appellant suffered injury to his lumbar spine on 5 February 2015.

INTRODUCTION

Mr Hisham Elsamad (the appellant) was employed by Belmadar Pty Ltd (the respondent) as a remote crane operator. The appellant suffered an injury in the course of that employment on 5 February 2015, when he was walking down a temporary stairway and a stair tread dislodged.
The appellant alleged injury to his right shoulder, neck and back. The respondent accepted liability for the right shoulder, but denied liability for the neck and back.
The matter proceeded to arbitration, in which the appellant sought lump sum entitlements in respect of the whole person impairment of the cervical spine, lumbar spine and right upper extremity pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and treatment expenses pursuant to s 60 of the 1987 Act. The treatment expenses included the cost of cervical fusion performed by Dr Raoul Pope, neurosurgeon, on 6 June 2016.
The Arbitrator found in favour of the appellant in respect of the injury to the neck, but was not satisfied that the appellant suffered a back injury in the incident.
The appellant appeals the determination in respect of the alleged injury to the back.

BACKGROUND

Prior to his employment with the respondent, the appellant suffered a previous injury to his neck and back in a motorcycle accident on 31 May 2013. He was off work until mid-2014, when he commenced casual work as a dogman. He was then offered employment with the respondent. He commenced that employment on 1 September 2014.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties are content for the appeal to be determined ‘on the papers’.
I have had 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

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Further, there is no dispute that the decision of the Arbitrator is not an interlocutory decision.

THE EVIDENCE

As the only issue in this appeal is whether the Arbitrator erred in finding against the appellant in respect of the alleged injury to the back, it is not necessary to refer to evidence that is unrelated to the issue on appeal. The following is a summary of the evidence that pertains to, and gives context to the issue in the appeal.

The appellant’s statement

The appellant provided a statement dated 1 August 2018.[1] He provided a background of his education and work experience. Essentially, the appellant said that he had always struggled with literacy at school. He left high school after completing year 10, and pursued employment in manual type work, graduating to driving a crane truck and ultimately becoming a crane operator/dogman. The appellant listed a number of companies who employed him according to the workforce demands, and it is apparent that the appellant enjoyed fairly constant employment.
[1] Application to Resolve a Dispute (ARD), pp 177–187.
The appellant described the motorcycle accident that occurred on 31 May 2013, in which he had swerved to avoid a car exiting from a side street and came off his motorcycle. He was taken by ambulance to St George Hospital, where he was given morphine. He discharged himself several hours later. The following morning, he attended his general practitioner, Dr Dennis Chow, who prescribed pain killers and bed rest. The appellant said that in October 2013, Dr Chow certified him as being fit for all activities of daily living, but not fit for full work duties.
The appellant stated that he was referred for a CT scan of his neck and back in December 2013 and for physiotherapy from 14 December 2014 [sic, 2013] to 25 May 2015 [sic, 2014]. He obtained employment with Fuller’s Cranes in mid-2014, before commencing work with the respondent on 1 September 2014.
The appellant described the injury with the respondent on 5 February 2015. He said he was walking down a prefabricated stairway, when one of the wooden steps broke, which caused him to fall into the opening. The appellant asserted that he fell awkwardly, from a height of about 3.5 metres, suffering injury to his neck, mid and lower back, right shoulder, left ankle and left knee. There were no witnesses, but two co-workers came to assist him. He was taken to the site office where he sat until finishing time. He drove home with great difficulty in a company car. The appellant said that he was in severe pain.
The appellant said that because the previous motorcycle accident caused his family financial difficulties, he did not want to lose his job, and on the following Monday returned to work. Dr Chow certified that he was fit for work 30 hours per week operating the remote controller for the crane. The appellant said that his right shoulder was causing him problems and he was experiencing worsening symptoms in his neck and low back.
The appellant reported that he was then referred to Dr Jerome Goldberg, orthopaedic surgeon, in respect of the right shoulder symptoms, and Dr Pope in relation to the pain in the neck and low back. The appellant said that he had previously (in about June 2014) discussed with Dr Chow a referral to Dr Pope. However, because at that time the pain in his neck and low back was manageable, and he had obtained employment with Fullers Cranes, he did not pursue an appointment with Dr Pope. However, following the injury on 5 February 2015, his back and neck symptoms increased considerably, so he then attended on Dr Pope. The appellant asserted that he told Dr Pope about both the motorcycle accident and the work-related injury.
The appellant stated that Dr Chow increased the appellant’s certification to 40 hours per week, on suitable duties from 7 March 2015, but then certified that he was unfit for any work from 17 March 2015. The appellant states that he has not returned to work.
The appellant said that Dr Goldberg performed surgery on his right shoulder on 11 August 2015. On 6 June 2016, he was admitted to Concord Hospital as a public patient, and Dr Pope performed a cervical fusion.
The appellant stated that he continued to experience low back pain, and Dr Pope arranged for him to undergo an MRI scan of the low back in August 2016. The appellant said that over this period of time he was undergoing a pain management program and was referred to Dr Stephen Ng, pain management specialist. He continued to experience neck and back pain that was considerably worse than the pain levels prior to the work-related injury. He said that the pain had significantly impacted his life and his family.

The Employer Injury Claim form

The Employer Injury Claim form was completed by the respondent on 26 February 2015.[2] It recorded that on 5 February 2015, while the appellant was walking down a stairway, a stair tread dislodged and the appellant’s leg fell into the opening. The incident was not witnessed, but was reported. Two employees assisted the appellant, who was found with his foot in the stair tread. The form recorded that the appellant injured his neck, mid and low back and knee. The form confirmed the appellant commenced the employment on 1 September 2014, included a reference to the previous back and neck injuries, and recorded the appellant’s usual gross earnings to be $1,216 per week with usual hours being 38 hours per week.

The medical evidence

[2] ARD, pp 188–191.

Dr Denis Chow

Dr Chow provided copies of his referral letters to Dr Pope and Dr Goldberg dated 7 March 2015. The referral to Dr Pope provided the following clinical details:
“Here is Hisham [Elsamad] who is still complaining of low back pain with radiation to his legs. He fell through a timber landing on 5/2/15. He has history of old back injury.”[3]
[3] ARD, p 9.
The referral to Dr Goldberg described the same mechanism of injury, but only referred to the appellant as having injured his right shoulder.[4]
[4] ARD, p 10.
Dr Chow also completed a number of WorkCover certificates of capacity. The first certificate was dated 7 February 2015. In that certificate, Dr Chow described the injury as occurring when the appellant’s left leg fell through the landing on the stairs, and listed the injuries as injury to the neck, mid and low back and left ankle. The doctor disclosed the previous injury to the neck and low back.[5] In the second certificate, dated 18 February 2015 (and various certificates that followed) Dr Chow described the injured body parts as neck, right shoulder, back and ankle.[6] On 17 March 2015 (and in subsequent certificates), Dr Chow certified that the appellant had no capacity for work from 12 March 2015.[7]
[5] ARD, p 144.
[6] ARD, p 146.
[7] ARD, p 148.
Dr Chow provided a hand-written response to questions posed by the respondent’s workers compensation insurer dated 9 March 2015.[8] Dr Chow recorded the mechanism of injury as:
“His left foot fell through a timber landing, falling on his back & back of head hitting a wall.”[9]
[8] ARD, pp 13–14.
[9] ARD, p 13.
Dr Chow reported the injury was to the neck, back, left ankle and right shoulder. Dr Chow indicated that the appellant had aggravated his prior neck and back injuries, but the right shoulder was a new injury.

Dr Raoul Pope

Dr Pope wrote a report dated 17 March 2015 directed to Dr Norman Lum, general practitioner, (whose name appeared with Dr Chow’s name on the letter of referral).[10] Dr Pope confirmed he had seen the appellant on 17 March 2015. Dr Pope indicated that he had already seen the appellant on 4 March 2015 in circumstances “where we were looking at the neck and lower back pain for two years.”[11] Dr Pope reported that on 17 March 2015, the appellant had made it very clear that symptoms had escalated significantly since the accident on 5 February 2015, when he fell through a stairwell, where he also injured his right shoulder. The remainder of the report discussed the neck symptoms, referral for pain management and proposed surgery to the C5/6 and C6/7 levels of the cervical spine.
[10] ARD, pp 53–54.
[11] ARD, p 53.
In a report dated 23 March 2015 directed to the respondent’s insurer, Dr Pope focussed on the neck symptoms and treatment.[12] The doctor advised that although the post injury MRI scan showed minimal change from the pre-injury (October 2014) MRI scan, “radiologic [sic] change is not the sole indicator for a pathologic [sic] process”.[13] Dr Pope added that the lower back symptoms were pre-existing, resulted from the motorcycle accident, and was not related to the work injury.
[12] ARD, pp 55–56.
[13] ARD, p 55.
In evidence were a number of further reports written by Dr Pope between 20 November 2015 and 23 May 2017, substantially dealing with the appellant’s significant cervical symptoms.[14]
[14] ARD, pp 57–78.
In a report dated 8 December 2015, Dr Pope confirmed he had last reviewed the appellant on 17 March 2015 in relation to neck and lower back problems. Dr Pope observed that the appellant’s “neck issue is the worst.”[15] On 19 January 2016, Dr Pope wrote that the appellant continued to have symptoms, “particularly [in] the neck”, and referred the appellant to the pain clinic at Concord Hospital “to help with his overall symptoms”.[16]
[15] ARD, p 59.
[16] ARD, p 62.
Dr Pope corresponded with Dr Chow on 19 July 2016, reporting on the appellant’s progress following the cervical fusion performed on 6 June 2016.[17] Dr Pope noted the appellant complained of continuing low back pain since the work-related injury and referred the appellant for an MRI scan of the lower back. On review on 30 August 2016, Dr Pope noted lower back pain and predominantly right lower limb pain.[18]
[17] ARD, p 68.
[18] ARD, p 69.
In a substantive report dated 24 October 2016 directed to Hannover Life Insurance,[19] Dr Pope reported that he had initially seen the appellant on 4 March 2015 when he presented with neck and back pain which he had been experiencing for two years following a motorcycle accident. Following the accident, the appellant was bed bound for three weeks, taking morphine and unable to work. He noted that the appellant returned to work in September 2014, but was struggling and unable to continue with work. Dr Pope referred to the work-related injury in February 2015, causing cervical symptoms and a right rotator cuff tear. Dr Pope confirmed that over the course of treatment, the appellant complained to him of chronic lower back symptoms, but the treatment regime focussed mainly on the neck and arm issues.
[19] ARD, pp 71–73.
Dr Pope noted on 29 November 2016 that the main reason for the consultation on that day was the appellant’s low back pain with bilateral lower limb pain, spasms and pins and needles down both legs to the ankles. Dr Pope recorded the history provided by the appellant that he had been experiencing back pain since about the time of the injury, but those symptoms were overshadowed by the neck symptoms.[20]
[20] ARD, p 75.
On 23 May 2017, Dr Pope confirmed that the appellant continued to experience back pain.

Dr Stephen Ng

The appellant was referred by Dr Pope to Dr Ng for the purposes of review of neck and right shoulder injuries and pain management.
Dr Ng reported back to Dr Pope on 28 April 2015.[21] The history recorded by Dr Ng included the history of neck and back symptoms as a result of a motorcycle accident in July 2013, following which the appellant was unemployed while recuperating. By the time the appellant commenced employment with the respondent, he was taking one panadeine forte per day to assist with sleeping and pain. The appellant denied any upper or lower limb pain or paraesthesia following that accident.
[21] ARD, pp 79–80.
Dr Ng recorded that the appellant suffered an aggravation on 5 February 2015 resulting in severe neck, back and right arm symptoms. Dr Ng described the injury occurred when the appellant was walking on a temporary stairway and a plank of timber gave way, his left foot went through the gap and the appellant hit his head against an adjacent brick wall.
On 12 May 2015, Dr Ng reported to Dr Chow and Dr Lum that the appellant continued to experience ongoing neck and low back pain, as well as right shoulder pain.[22]
[22] ARD, p 82.
Dr Ng further reported to Dr Chow and Dr Lum on 15 July 2015.[23] He advised that the appellant continued to experience neck and low back pain which was interrupting his sleep, with restless legs. Dr Ng recorded that the appellant was waiting for approval of a review by Dr Pope of his neck and lower back condition.
[23] ARD, p 83.

Dr Charles New

The appellant’s legal representatives arranged for Dr Charles New, orthopaedic surgeon, to examine the appellant and provide a forensic medical report. Dr New provided a report dated 28 June 2017.[24]
[24] ARD, pp 1–8.
Dr New recorded a history of the injury, noting that the appellant slipped when a step gave way and his leg fell through the space. The appellant was left with his left leg hanging down and his right leg pointing up the stairs. The appellant suffered injuries to his cervical spine, lumbar spine and right shoulder. Dr New recorded a consistent history of the appellant’s ongoing treatment regime and his post-injury work history.
Dr New noted the prior motorcycle accident involving injuries to the cervical and lumbar spines, which incapacitated the appellant for a period of one year. Dr New noted, however, that immediately prior to the work-related injury, the appellant was working without restriction in his neck or back.
Dr New recorded that at the time of assessment, the appellant was suffering debilitating pain in his cervical and lumbar spines and right shoulder, with an aching, burning sensation and pins and needles. The pain was exacerbated by prolonged sitting, walking, recurrent lifting and bending, as well as coughing and sneezing.
Dr New reviewed the radiological investigations.
On the basis that the appellant reported that he did not have any significant cervical or lumbar pain prior to the work-related injury, and was working without restriction, Dr New formed the view that the appellant’s condition was connected to the injury on 5 February 2015, and that employment was a substantial contributing factor to the injury.
Dr New assessed the appellant’s WPI as 37%, which included 5% WPI in respect of the lumbar spine.
Dr New was asked to review the opinions of Dr Rimmer and Dr Coroneos. In his report dated 27 August 2018,[25] Dr New concluded that each doctor was entitled to reach their own views, but that he maintained his opinion in relation to the conclusions reached in his first report.
[25] Application to Admit Late documents dated 3 October 2018, pp 1–3.

Dr Ian Smith

The respondent arranged for the appellant to be examined by Dr Ian Smith, injury management consultant, who provided a report dated 23 March 2016.[26] Relevantly, Dr Smith took a history of neck and low back injuries in the 2013 motorcycle accident, following which the appellant was unable to work for a year. Dr Smith recorded that because of family commitments, the appellant returned to work, and was able to manage his symptoms. The appellant experienced lower back pain if he was lifting heavy chains, but reported he was able to do that function. He had no disability walking, sitting or standing, had occasional disruption of sleep and took panadeine forte every week or so.
[26] ARD, pp 125–130.
Dr Smith noted the injury on 5 February 2015 happened quickly, and the appellant found himself with his back against a brick wall, his right leg pointing up and his left leg hanging down. Dr Smith recorded the injuries sustained as lower back pain with bilateral radiation, cervical spine with bilateral arm radiation, and the right shoulder.
The appellant reported that his sitting tolerance was limited to 5–10 minutes, the appellant walked slowly with a limp and struggled to walk more than 50–100 metres.

Dr Michael Coroneos

Dr Michael Coroneos, neurosurgeon, examined the appellant on 16 April 2015 at the request of the respondent and provided a report dated 27 April 2015.[27]
[27] Reply, pp 7–18.
Dr Coroneos recorded that the appellant denied any spinal symptoms prior to the injury on 5 February 2015, but then the appellant proceeded to provide the history of the motorcycle accident in 2013, following which the appellant was off work for a year because of pain in the neck and back. The appellant further provided details of the injury on 5 February 2015, which Dr Coroneos recorded as involving the step giving way, the appellant’s left leg going through the opening and that he hit his back against a brick wall. Dr Coroneos described the injury as a “low impact, low velocity incident.”[28]
[28] Reply, p 12.
Dr Coroneos said that the appellant went to the office and reported the incident after completing the load he was working on, and then went home. The following day, the appellant experienced neck and back soreness, right shoulder pain and throbbing in the left ankle.
At the time of the examination, the appellant reported continuing neck and low back pain, and pins and needles sensations down the back of the lower limbs to the toes.
Dr Coroneos reviewed the MRI investigations of the cervical spine dated 20 February 2015 and the lumbar spine dated 5 March 2015. Dr Coroneos formed the view that the pathology identified on the MRI scan of the lumbar spine was pre-existing degeneration, consistent with the appellant’s age, and there was no change between that pathology and the MRI scan undertaken in October 2014.
On examination, Dr Coroneos found no evidence of sciatica or radiculopathy and no neurological deficits. He said that the reported alteration in the left lower limb sensitivity was not in an organic distribution. He further found no evidence to support an aggravation of the pre-existing lumbar condition.
Dr Coroneos concluded that there had been no aggravation of the cervical or lumbar conditions, that the proposed surgery to the cervical spine was unnecessary, dangerous, and unrelated to the injury.
Dr Coroneos confirmed those opinions in a supplementary report dated 3 November 2015,[29] and again in a further report dated 27 September 2017.[30] In the further report, Dr Coroneos assessed the appellant’s permanent impairment of the cervical and lumbar spines as 0%, on the basis that there was no work-related component of any loss.
[29] Reply, pp 19–21.
[30] Report of Dr Coroneos dated 27 September 2017, admitted at the arbitration on 3 October 2018.

Dr Stephen Rimmer

Dr Stephen Rimmer, orthopaedic surgeon, was also asked by the respondent to examine the appellant and provide a report.
In the report dated 11 September 2017,[31] Dr Rimmer recorded a brief history of the 2013 motorcycle accident, in which the appellant injured his cervical and lumbar spine. He was admitted to St George Hospital for a week, following which he did not require ongoing treatment. Dr Rimmer took an equally brief history of the injury on 5 February 2015, recording that the appellant fell through a stair which had given way, injuring his cervical spine, lumbar spine, and right shoulder. Dr Rimmer noted that the current lumbar symptoms were intermittent pain around the midline, exacerbated by prolonged sitting causing pins and needles in both lower limbs. On examination, Dr Rimmer found painful restricted range of motion, with non-verifiable signs of radiculopathy in the right lower limb. He noted gross inconsistencies.
[31] Reply, pp 30–38.
Dr Rimmer was asked to provide his opinion as to whether the alleged injuries to the neck, back and right shoulder resulted from the incident on 5 February 2015. Dr Rimmer responded that given the mechanism of injury and giving the appellant the benefit of the doubt, the neck, back and right shoulder were injured in the incident, although he was unable to state that with any accuracy because he had only assessed the appellant in the post-operative period. He provided an assessment of whole person impairment for each body part, including 5% in respect of the lumbar spine (after deduction for the pre-existing condition).
In a supplementary report dated 8 February 2018,[32] Dr Rimmer reviewed further documentation provided to him relating to the neck and back, including an MRI scan of the lumbar spine dated 7 October 2014. On the basis that the lumbar MRI scan disclosed pre-existing pathology referrable to the 2013 motorcycle accident, Dr Rimmer formed the view that the lumbar spine was not injured on 5 February 2015. He also formed the view that the cervical spine pain did not result from the work injury.
[32] Reply, pp 39–42.

The radiological investigations

A number of radiological investigation reports were in evidence. Of those documents, two MRI scan reports of the lumbar spine are relevant to the issues on appeal, namely the MRI scan undertaken on 7 October 2014 by Dr Craig Harris, radiologist[33] and the MRI scan performed on 5 March 2015 by Dr Tej Dugal, radiologist.[34]
[33] Reply, pp 58–59.
[34] Reply, p 62.
In the report dated 7 October 2014, Dr Harris noted the history of back pain and paraesthesia following a motor vehicle accident. Dr Harris concluded that there were multilevel degenerative changes, with most noticeable disc bulging at L4/5 abutting and displacing the left L4 nerve root, potential neural irritations without significant impingement. Facet joint synovitis was noted at multiple levels.
Dr Dugal noted in the report dated 5 March 2015 the history of a motor vehicle accident resulting in pain. Dr Dugal concluded that the scan demonstrated no fracture or marrow infiltration. He noted an L4/5 left foraminal annular tear and mild right foraminal stenosis abutting but not deviating the exiting right nerve root. L3/4 was desiccated without neural compression.

Further documentary evidence

A document bearing an NRMA insurance logo headed “Request for Medical information” signed and dated by Dr Chow on 18 February 2014 was annexed to the Reply.[35] In that document, Dr Chow referred to painful neck and low back pain with sciatica. Dr Chow provided details of previous low back pain with radiation to the right leg under the date “24 June 2010”.
[35] Reply, pp 54–55.
A fitness for work certificate, also bearing the NRMA insurance logo, and signed by Dr Chow on 20 January 2014, was also in evidence.[36] In that certificate, Dr Chow certified that the appellant was unfit to resume work as a crane driver from 1 June 2014 to 20 May 2014 due to pain in his cervical spine and low back pain with sciatica. Dr Chow noted the appellant needed an MRI scan of his neck and low back.
[36] Reply, p 50.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues she was required to determine as:
(a)    whether the appellant suffered an injury to his cervical spine and lumbar spine on 5 February 2015;
(b)    the appellant’s entitlement to treatment expenses in respect of those body parts, and
(c)    whether the cervical fusion performed by Dr Pope was reasonably necessary as a result of the injury.
The Arbitrator summarised in detail the appellant’s statement evidence, the medical evidence and other documentary evidence, as well as the submissions of the parties.
The Arbitrator observed that there was no dispute that prior to the work-related injury on 5 February 2015, the appellant had pre-existing conditions in both his cervical and lumbar spines. She further observed that the evidence as to the nature and effect of those conditions was conflicting, as well as the submissions by the parties.
The Arbitrator commented that the request for medical information signed and dated by Dr Chow on 18 February 2014 suggested that the appellant may have experienced symptoms in his low back since 24 June 2010. The fitness for work certificate dated 20 January 2014 stated that the appellant was unfit for work because of neck symptoms and low back pain with sciatica, until 20 June 2014. Further, the MRI scans of the cervical and lumbar spines undertaken in October 2014 were performed after the appellant had commenced work with the respondent. The Arbitrator pointed to the histories recorded by Dr Ng that prior to the work-related injury, the appellant was taking one panadeine forte tablet per day to assist with pain, and the history recorded by Dr Smith that the appellant was able to manage his low back pain, and took one panadeine forte per week.
The Arbitrator concluded that the above evidence confirmed that the appellant continued to experience back pain caused by the motorcycle accident up until 5 February 2015. The Arbitrator did not accept the history recorded by Dr Ng and Dr Smith that there were no symptoms in the lower limbs prior to the injury on 5 February 2015, as it was clearly contradicted by the references to radiation and sciatica recorded by Dr Chow in 2014.
The Arbitrator said that it was unfortunate that Dr Chow’s clinical notes were not in evidence, but that it was apparent that the appellant was receiving treatment in early 2014 and undergoing MRI scans in October 2014. The Arbitrator observed that there was no evidence that the appellant was referred for specialist treatment prior to 5 February 2015, although the first appointment on 4 March 2015 with Dr Pope appeared to have been for the purpose of dealing with a two-year history of neck and back pain.
The Arbitrator noted there was no doubt the incident occurred on 5 February 2015, but said that the mechanism of injury was unclear. She concluded that the weight of the evidence indicated that the appellant’s left leg fell through the opening that occurred when the stair gave way, resulting in the appellant landing awkwardly with his right leg facing up the stairway. On the basis of the consistent references in the evidence, the Arbitrator further concluded that the appellant hit his head and/or back against the adjacent brick wall.
The Arbitrator did not consider Dr Coroneos’ description of the injury as being low impact to be a fair description, when it was accepted that the incident caused a significant injury to the right shoulder. The Arbitrator said that it was common sense that the mechanism of injury would involve considerable velocity and impact.
The Arbitrator pointed to the contemporaneous evidence that supported that the appellant injured his back in the incident. That is, it was recorded in the employer’s injury claim form and the initial WorkCover certificate dated 7 February 2015.
The Arbitrator expressed concern about the reference in Dr Pope’s initial report that the appellant consulted the doctor in respect of a two-year history of chronic neck pain and back pain. She did not consider the appellant’s illiteracy was a sufficient explanation for lack of reference to the work injury in the history, when the appellant had come to Australia as a baby and been schooled in Australia.
The Arbitrator accepted that the appellant reported an injury to his back on the day of the fall, because it was recorded by the employer and included in the initial WorkCover certificate. The Arbitrator noted, however, that an MRI scan of the lumbar spine was not undertaken until 5 March 2015 (following the consultation with Dr Pope on 4 March 2015), when the cervical spine MRI was performed earlier on 20 February 2015. Additionally, the radiologist’s report dated 5 March 2015 referred to a motor vehicle accident.
The Arbitrator further noted that Dr Pope did not record an escalation in the appellant’s lumbar symptoms in his report dated 17 March 2015, and in the report dated 23 March 2015, Dr Pope attributed all of the appellant’s lumbar symptoms to the motorcycle accident.
The Arbitrator observed that in his report dated 14 April 2015, Dr Ng said that there had been an aggravation of the lower back condition in the work injury, but in contrast to the neck, he did not describe any new or increased symptoms.
The Arbitrator referred to Dr Coroneos’ report dated 27 April 2015, and that despite Dr Coroneos noting and finding on examination low back symptoms, Dr Coroneos’ conclusion was that there were no acute changes, and all the lumbar pathology related to pre-existing lumbar spine degeneration. The Arbitrator said that similarly, on 23 April 2016, Dr Smith found low back symptoms on examination but noted there had not been any lumbar treatment following the fall.
The Arbitrator noted that the appellant raised lumbar complaints to Dr Pope again in July 2016, which he alleged were attributable to the work injury, and that in November 2016, Dr Pope arranged investigations. Although Dr Pope confirmed lumbar symptoms, he did not provide an opinion as to whether those symptoms were referrable to the injury.
The Arbitrator concluded that the only reasoned opinion that supported the allegation of injury to the lumbar spine (apart from Dr Rimmer, who had altered his opinion) was Dr New. In his report dated 28 June 2017, Dr New took a history of no significant lumbar pain prior to the work injury, but at the consultation the appellant complained of debilitating pain, which was confirmed on examination. After being provided with additional material, Dr New maintained his opinion, although acknowledging a component of the lumbar condition as pre-existing. The Arbitrator noted that Dr New’s opinion was similar to the reasoning expressed by Dr Rimmer in his first report.
The Arbitrator expressed the view that both Dr Rimmer’s initial opinion and the opinion of Dr New were dependent upon the appellant’s retrospective reporting and the clinical examinations performed more than two weeks after the accident. The Arbitrator said that she was unable to reconcile those opinions with the clear and contemporaneous opinion expressed by Dr Pope, the treating specialist, that the lumbar symptoms pre-existed the work injury.
The Arbitrator concluded that while she accepted the appellant had lumbar symptoms after the work injury, and that by July 2016 those symptoms had increased, she was “not comfortably satisfied” that there was a change in the lumbar spine pathology caused by the injury on 5 February 2015, or that any escalation of lumbar symptoms in July 2016 was referrable to the work incident, rather than the natural progression of the pre-existing pathology.
The Arbitrator said that she was not satisfied that the appellant sustained a personal injury to his lumbar spine pursuant to s 4(a) of the 1987 Act or an aggravation of a disease process pursuant to s 4(b)(ii) of the 1987 Act, on 5 February 2015.
The Certificate of Determination (COD) issued on 23 November 2018 records:
“The Commission determines:
1. The applicant received an injury meeting the definition in s 4 of the Workers Compensation Act 1987 to his cervical spine on 5 February 2015.
2.     Award for the respondent in respect of the claimed injury to the lumbar spine on 5 February 2015.
3.     The cervical spine surgery performed by Dr Pope on 6 June 2016 was reasonably necessary as a result of the work injury on 5 February 2015.
The Commission orders:
1. The respondent to pay the applicant’s reasonably necessary medical and related expenses resulting from the injuries to his right shoulder and cervical spine on 5 February 2015, including the costs of and incidental to the surgery performed by Dr Pope on 6 June 2016, pursuant to s 60 of the Workers Compensation Act 1987.
2.     The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment as follows:
Date of injury:                   5 February 2015
Body parts:  Right upper extremity (shoulder)
Cervical spine
Method of assessment:     Whole Person Impairment
3.    All evidence admitted in the proceedings, that is, excluding the reports of Dr Kalnins dated 7 May 2015 and 6 November 2015, together with this determination and statement of reasons, is to be provided to the AMS.”

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator’s decision is affected by error of fact and law in her determination that she was not satisfied that the appellant suffered an injury to the lumbar spine on 5 February 2015. The errors are alleged to be as follows:
(a)    Ground one: error of law in failing to determine the question of injury on the balance of probabilities and instead applying a more onerous standard of proof (needing to be “comfortably satisfied”);
(b)    Ground two: error of mixed fact and law by overlooking, and giving insufficient weight to the contemporaneous evidence that the appellant injured his lumbar spine on 5 February 2015;
(c)    Ground three: error of mixed fact and law by overlooking the evidence that the injury involved a high velocity impact of the appellant’s back against a brick wall, which should lead to a common sense conclusion that the kind of injury would cause injury to the lumbar spine;
(d)    Ground four: error of mixed fact and law in basing her determination on the bald assertion by Dr Pope that the appellant’s low back symptoms were not related to the injury, without reconciling that opinion with the contemporaneous evidence, the opinions of Dr Ng, Dr New and Dr Chow, the history provided by the appellant to the medical practitioners, and the appellant’s own evidence;
(e)    Ground five: error of mixed fact and law by failing to acknowledge the appellant’s own statement evidence that prior to the injury his back was “manageable”, that he injured his back in the incident on 5 February 2015, he had significant pain in his back when he arrived home, and his back pain “dramatically” and “considerably” increased, and
(f)    Ground six: error of mixed fact and law by failing to provide proper reasons for preferring the unexplained opinion of Dr Pope over the contemporaneous evidence, the opinions of Dr Ng, Dr New and Dr Chow, the history given to the medical practitioners and the appellant’s statement.

LEGISLATION

Section 294 of the 1998 Act provides for a COD to be issued by the Commission following a determination of a dispute. It provides as follows:
“294 Certificate of Commission’s determination
(1)     If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)     A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination.
(3)     If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
Rule 15.6 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) sets out what is to be included in an arbitrator’s reasons, as follows:
“15.6          Certificates of determination
(1)     A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2)     Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”

SUBMISSIONS

By way of background, the appellant recites the history of the motorcycle accident and subsequent period of incapacity, noting that the appellant was able to return to work in mid-June 2014, then commenced work with the respondent in September 2014. The appellant refers to the evidence from the appellant’s statement and the report of Dr Smith dated 23 March 2016, which indicates that the appellant’s symptoms were manageable, and that the appellant was able to perform that work without restriction for a period of seven months. The appellant further refers to the history recorded by Dr Ng in his report dated 28 April 2015 that there were no symptoms of pain and paraesthesia in the upper or lower limbs following the motorcycle accident.

The appellant recites the mechanism of injury asserted by the appellant in his statement, and the similar histories provided by the appellant to Dr Smith and Dr Coroneos that the appellant’s back made contact with the brick wall in the course of the fall. Dr Smith’s description of the injury not only indicated that the appellant’s back hit the wall, but the contact of the back with the wall would have arrested the fall. The appellant also quotes from Dr Chow’s response to the respondent’s workers compensation insurer dated 9 March 2015, in which Dr Chow described the fall, including that the appellant fell on his back and the back of his head hit the wall.
The appellant asserts that there were no witnesses to the fall, there was no countervailing evidence to that of the appellant and it follows that there is no basis to reject the appellant’s evidence that he injured his back in the incident. The appellant says that it is common sense that the sudden impact of the back hitting a brick wall would cause injury to the lumbar region.
The appellant provides a review of the appellant’s evidence as to the onset of more severe neck and low back symptoms following the work injury and the medical evidence to that effect. He asserts that the increase in the symptoms in the back and lower extremities recorded in all of that evidence indicates pathological change to the lumbar spine. Further, there is substantial evidence confirming that the appellant injured his back in the fall, and experienced back pain immediately afterwards. In particular, Dr Chow diagnosed a low back injury two days after the fall, and clearly had a history of the mechanism of the fall as described in his response to the respondent’s workers compensation insurer dated 9 March 2015. On that basis, Dr Chow was well placed to consider the connection between the fall and the lumbar symptoms. Further, Dr Chow included the back pain with radiation to the legs in two referrals for specialist treatment dated 7 March 2015. Dr Ng also noted severe neck and back pain following the fall, which was in contrast to the “modest” complaints prior to the fall.
The appellant provided a detailed review of the evidence provided by Dr Pope, particularly that Dr Pope considered it necessary to refer the appellant for an MRI scan, which was performed on 5 March 2015, and that the appellant had clearly complained to Dr Pope that the low back symptoms had escalated significantly following the work-related injury. Further, Dr Pope did not seem to have knowledge of, or did not take note of, the impact to the back in the fall and the subsequent onset of symptoms.
The appellant refers to the following findings of the Arbitrator:
(a)    she was satisfied that the appellant hit his back and/or head against the brick wall;
(b)    contrary to Dr Coroneos’ view, the impact of the fall would have involved some considerable velocity and impact;
(c)    there was contemporaneous evidence to substantiate the appellant’s claim that he injured his back;
(d)    despite the apparent omission in the history first provided to Dr Pope, other evidence suggests an escalation of symptoms at least in relation to the cervical spine, and
(e)    on 11 February 2015, the appellant complained to the emergency department at Westmead Hospital of chronic neck and back pain.
By way of overview, the respondent indicates that it consents to an award of weekly payments in respect of “total incapacity” from 26 July 2017 to 26 September 2017, following the surgery to the appellant’s cervical spine. (There is no claim for weekly payments on foot and it is not appropriate to seek those orders on appeal. The parties should come to their own terms of agreement in that matter.)
The respondent indicates that its general position in respect of the issues on appeal is:
(a)    the appellant has not pointed to any error on the part of the Arbitrator in respect of “the Arbitrator’s determination the appellant was fit for suitable employment”;[37]
(b)    the appeal is largely a re-agitation of matters already submitted on in the arbitration which is inappropriate on an appeal, and
(c)    the appellant is bound by the way his case was run and ought to be precluded from raising new issues on appeal.
[37] Respondent’s submissions, [8.2(a)].
The respondent refers to the appellant’s submissions in respect of the “background” of the matter, and says it makes no comment of the accuracy of those submissions, except that the respondent:
(a)    does not concede that the evidence establishes the appellant worked without restriction prior to the work injury;
(b)    does not accept the description of injury relied on by the appellant, which was the subject of conflicting evidence, as discussed by the Arbitrator in her reasons;
(c)    does not accept that the appellant’s back, when hitting the wall, would have arrested the fall;
(d)    disputes the evidence supported a finding of injury to the lumbar spine, and
(e)    disputes the Arbitrator erred in her reasoning process.

Submissions – grounds one and two

It is convenient to firstly consider grounds one and two of the appeal and the parties’ submissions relevant to those grounds.

Ground one: error of law in failing to determine the question of injury on the balance of probabilities and instead applying a more onerous standard of proof (needing to be “comfortably satisfied”)

The appellant submits that the relevant onus of proof in respect of a finding of injury is on the balance of probabilities, and that the Arbitrator misdirected herself by saying she was “not comfortably satisfied that there was a change in the pathology in the lumbar spine caused by the work incident”.[38]
[38] Appellant’s submissions, [40].
The respondent accepts that the relevant standard of proof is the balance of probabilities. It refers to the decision of the Court of Appeal in Nguyen v Cosmopolitan Homes,[39] which is said to be authority that for a tribunal of fact to be satisfied of the existence of a fact, on the balance of probabilities, it must feel an actual persuasion of the fact. The respondent submits that there is no distinction between an “actual persuasion” and being “comfortably satisfied,” and says the appellant is “cavilling with semantics.”[40]
[39] [2008] NSWCA 246 (Nguyen).
[40] Respondent’s submissions, [9.1]–[9.2].
The respondent submits that the Arbitrator undertook an assessment of the evidence on the balance of probabilities, which is apparent from her analysis of the medical evidence. The respondent says that the Arbitrator carefully analysed and commented on all of the relevant evidence that addressed the allegation of injury to the lumbar spine.
The respondent asserts that the appellant is being hypercritical of the Arbitrator’s approach and reasons, relying on extracts from the High Court decision in Minister for Immigration & Multicultural Affairs v Liang[41] where it was said that a court should not be:
“concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker … ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”[42]
[41] [1996] HCA 6; 185 CLR 259 (Liang).
[42] Citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280, at 287.
The High Court in Liang[43] expressed the view that those principles are well settled.
[43] Liang, [30]–[31].
In reply, the appellant submits that the challenge to the standard of proof applied by the Arbitrator is not one of mere semantics. He submits that it is not uncommon for a decision maker to adopt such a term when he or she has arrived at a decision with some ease, or greater sense of satisfaction than is required. The appellant contends however, that to use the term in the negative sense, that is to be “not comfortably satisfied”, is erroneous.
The appellant refers to Briginshaw v Briginshaw,[44] and submits that such a standard is only relevant if the fact to be established is one of a serious nature, such as serious misconduct or criminality, where greater caution is warranted. The appellant reiterates that the finding that she was not comfortably satisfied that the appellant injured his back is more stringent than the requirement of being reasonably satisfied, as discussed in Briginshaw.

Ground two: error of mixed fact and law by overlooking, and giving insufficient weight to the contemporaneous evidence that the appellant injured his lumbar spine on 5 February 2015

[44] [1938] HCA 34; 60 CLR 336 (Briginshaw).

The appellant submits that an analysis of the Arbitrator’s reasoning reveals that the crux of the decision was the opinion of Dr Pope that back symptoms were pre-existing and resulted from the motorcycle accident. The appellant refers to the Arbitrator’s observations that there was no clear evidence of an increase in symptoms or treatment immediately after, and for a considerable time after the fall. The appellant submits that the Arbitrator has misdirected herself in her understanding of the evidence, particularly the probative status of the early reporting of the injury, the consistent history in the appellant’s statement and the medical evidence. The appellant says that the Arbitrator dismissed the appellant’s evidence on the basis that it was a “retrospective reporting of symptoms,”[45] without appreciating that the reporting accords with what was obviously reported to Dr Chow in February 2015, and to the employer. Further, the Arbitrator failed to appreciate that Dr Chow, having knowledge of the appellant’s prior back symptoms, was reliably placed to diagnose an aggravation of the appellant’s back condition within the meaning of s 4(b)(ii) of the 1987 Act, as reported to him two days after the incident.
[45] Appellant’s submissions, [42].
The appellant contends that the Arbitrator failed to address the import of the diagnosis provided by Dr Chow, or explain the basis upon which she did not accept that evidence. The appellant says that because the Arbitrator’s reasoning did not include an assessment of that evidence, it is not clear whether the Arbitrator rejected that evidence or simply overlooked it. The appellant asserts that the Arbitrator’s consideration of the WorkCover certificates with her consideration of the respondent’s report of injury, as distinct from her consideration of the medical evidence, indicated that the Arbitrator erroneously considered that the WorkCover certificates were not medical evidence. As a result, the Arbitrator did not consider the diagnosis of a back injury contained in the certificates issued between 7 February 2015 and 12 August 2015.
The appellant submits that the Arbitrator, in her reasons, also failed to acknowledge the history and mechanism of injury and Dr Chow’s diagnosis contained in his report directed to the respondent’s insurer dated 9 March 2015. The appellant submits that if the Arbitrator was to reject the evidence of the nominated treating doctor, who:
(a)    had knowledge of the appellant’s prior back symptoms;
(b)    was the first to examine the appellant, and
(c)    continued to treat the appellant,
it was incumbent upon the Arbitrator to provide reasons for not accepting that evidence, which was probative evidence of the injury.
The appellant asserts that the only reference to Dr Chow’s evidence was the Arbitrator’s consideration of the referral letter to Dr Pope. The appellant cites the Arbitrator’s observation that the document referred to “still complaining of low back pain with radiation to his legs,”[46] that it was unclear when those symptoms arose, and that there was no evidence to assist. The appellant asserts that this was an acknowledgement that there was no evidence to contradict the appellant’s evidence that there was an escalation of his back symptoms immediately after the fall.
[46] Appellant’s submissions, [46].
Further, the appellant submits that the Arbitrator acknowledged that there was no evidence of specialist referral or intervention prior to the work injury, and that the obvious inference is that the appellant was referred to Dr Pope in March 2015 because of an escalation in his back symptoms. The Arbitrator did not draw that inference and moreover did not address the appellant’s evidence that prior to the work injury, the appellant was able to manage his symptoms.
The appellant contends that in his report dated 28 April 2015 and on the background of the history known to him of the prior symptoms, Dr Ng recorded a further aggravation of the back condition constituting severe back pain. The appellant submits that that description clearly indicates an increase in symptoms, contrary to the Arbitrator’s observation that Dr Ng did not describe any new or increased symptoms in the back.
The respondent submits that the appellant has not explained how the Arbitrator erroneously interpreted the facts, or how she incorrectly applied the law. The respondent observes that the appellant is not asserting that this is a case in which there was “no evidence” to support the Arbitrator’s findings.
The respondent contends that the appellant has not properly identified any error of fact or error of law (which are different concepts), but has simply restated his submissions already made at arbitration.
The respondent disputes that the Arbitrator overlooked or did not afford proper weight to the contemporaneous evidence. The respondent points out that the Arbitrator accepted that the appellant reported an injury to his back shortly after the fall, and referred to the WorkCover certificates provided by Dr Chow. The respondent says however, that the Arbitrator stated clearly that it was not clear as to whether the fall resulted in any change to the appellant’s lumbar spine.
The respondent asserts that the Arbitrator weighed the evidence of Dr Chow against the other evidence (including that of Dr Pope), which she was required to do, and concluded that the appellant did not injure his lumbar spine. The respondent submits that there was no error in that approach.
The respondent further asserts that the WorkCover certificates simply referred to a back injury and did not specify any actual pathology attributable to the incident on 5 February 2015.
The respondent submits that in the context of the prior unrelated injury to the back, the appellant bore the onus of establishing there was an actual identifiable injury on 5 February 2015. The respondent contends that the Arbitrator’s finding that Dr Chow’s reference to a “back injury” was not sufficient, was open to her, in the context of the notation on the certificates of a previous back injury.
The respondent asserts that the appellant’s argument on appeal that Dr Chow was the most reliably placed medical practitioner to diagnose a lumbar injury is in direct contrast to the appellant’s submissions at arbitration, which was that Dr Pope ought to have been afforded proper weight because of the extent of the time he had spent considering the appellant’s back condition. The respondent says that the appellant is bound by how he ran his case at arbitration, and cannot now appeal on the basis that the Arbitrator should have ignored or given less weight to Dr Pope’s evidence.
In relation to the submission by the appellant that the Arbitrator did not consider the WorkCover Certificates as medical evidence, the respondent submits that the appellant has taken the Arbitrator’s comments out of context, and her reasons should be read as a whole. The respondent asserts that the reasons, when read in context, indicate that the Arbitrator properly reviewed the medical certificates, but regarded that the medical evidence, as a whole, was less clear as to whether the fall resulted in any change in pathology to the appellant’s lumbar spine. The respondent submits that the Arbitrator concluded that the WorkCover certificates did not assist in her determination of the issue because they did not address what pathological injury had been sustained.
The respondent submits that it was not an error for the Arbitrator to not specifically address the report of Dr Chow dated 9 March 2015, because the appellant’s submissions at arbitration only addressed in respect of that report as it was referrable to the neck injury.
The respondent submits that in any event, the Arbitrator satisfactorily dealt with Dr Chow’s evidence by addressing Dr Chow’s more contemporaneous evidence which did not explain the pathological change. It says that the report also only referred to the back injury, and not any specific pathology. The report dated 9 March 2015 was therefore of no consequence.
The respondent contends that, in relation to the appellant’s complaint that the Arbitrator should have given preference to the appellant’s subjective complaints, the Arbitrator correctly weighed the evidence as a whole. Further, the respondent disputes that Dr Ng referred to the symptoms in the back and described them as severe. It says that Dr Ng’s discussion of symptoms and the severity of those symptoms was limited to the cervical spine and the right shoulder. On that basis, the Arbitrator’s observation that Dr Ng did not record any new or increased symptoms in the lumbar spine was correct, and her finding discloses no error.
In conclusion, the respondent disputes that the Arbitrator ignored relevant evidence, and submits that the Arbitrator carried out her task properly and appropriately, and weighed the evidence before her before reaching her conclusion. The respondent asserts that the appellant has failed to identify error on the part of the Arbitrator.
In reply, the appellant reiterates that the Arbitrator’s finding that the appellant did not injure his lumbar spine was erroneous, and was against the wealth of probative contemporaneous evidence which was consistent with the appellant’s early reporting of lumbar symptoms.

RELIEF SOUGHT

The appellant seeks a revocation of the Arbitrator’s determination of an award for the respondent in relation to the lumbar spine and instead a determination made that the appellant suffered an injury to the lumbar spine within the meaning of s 4 of the 1987 Act and that orders one and two of the Certificate of Determination of 23 November 2018 be amended to include the lumbar spine.
The respondent submits that the appeal ought to be dismissed and the orders provided in the Certificate of Determination of 23 November 2018 be confirmed.

DISCUSSION

In ground one of the appeal, the appellant contends that the Arbitrator misdirected herself by saying she was “not comfortably satisfied that there was a change in the pathology in the lumbar spine caused by the work incident”.[47] It is trite to say that the relevant onus of proof in respect of a finding of injury is one of being satisfied on the balance of probabilities. The phrase “comfortable satisfaction”, which has been adopted by decision makers in various tribunals, found its origin in Briginshaw, cited by the appellant in its reply to the respondent’s submissions.
[47] Appellant’s submissions, [40].
It is necessary to examine the context in which the phrase was used by the High Court in Briginshaw. Briginshaw was an appeal from a decision of the Supreme Court of Victoria, in which the husband’s petition for divorce was dismissed. The husband sought the divorce on the grounds of adultery. The divorce petition was brought under the Victorian Marriage Act 1928, which required the court to “satisfy itself, so far as it reasonably can, as to the facts alleged” (s 80), and “the court, if it is satisfied that the case of the petitioner is established, shall pronounce a decree nisi for dissolution of marriage” (s 86). The appeal was founded on an allegation that the court below had applied the wrong standard of proof in its determination that the adultery had not been established. The plurality (with Latham CJ dissenting) dismissed the appeal.
In his consideration of the words used in the statute, Rich J said:
“The phrase ‘satisfy itself, so far as it reasonably can’ obviously reflects the influence of the common expression ‘reasonable satisfaction.’ In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction [my emphasis] that the tribunal has reached both a correct and just conclusion.”[48]
[48] Briginshaw, 350.

Following a lengthy examination of the legal history and development of the common law standards of proof, Dixon J (as his Honour then was) made the following observations (citations omitted):
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: ‘No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct.’”[49]
[49] Briginshaw, 362.
Put simply, while Briginshaw did not establish a third standard of proof, in circumstances where a serious allegation requires proof, a more careful approach must be taken in reaching the necessary conclusion that the allegation is made out.
The respondent asserts that the appellant is “cavilling with semantics,”[50] and that there is no distinction between feeling “an actual persuasion” of a fact, in accordance with Nguyen, and being “comfortably satisfied.” I do not accept that it is a matter of semantics.
[50] Respondent’s submissions, [9.2].
The expression by Rich J in Briginshaw of the term “comfortable satisfaction” was used in the context of the application of the civil standard of proof of a fact in a matter that, according to the social mores of the time, was a serious allegation. In the circumstances of this case, where there had been no attack on the appellant’s credit, the mechanism of injury was accepted by the Arbitrator, and the respondent’s case was that the medical evidence did not support that the appellant had suffered an injury because there had been no pathological change, the Arbitrator was not required to reach a “comfortable satisfaction” in the circumstances in which Rich J adopted the term.
Had the Arbitrator decided she was comfortably satisfied of the occurrence of the injury, as the appellant submits, that would not amount to error. Having found she was not “comfortably satisfied” is, however, a contrary consideration and indicates that the Arbitrator was applying a higher standard of proof than the circumstances required, which the appellant failed to meet.
It follows that the Arbitrator erred in requiring herself to be so satisfied.
The second ground of appeal asserts that the Arbitrator either overlooked, or placed too little weight on, the contemporaneous evidence in relation to the appellant having injured his lumbar spine.
The Arbitrator acknowledged there was contemporaneous evidence to substantiate the appellant’s allegation of injury to the lumbar spine. She said:
“There is contemporaneous medical evidence to substantiate Mr Elsamad’s claim to have injured his neck and lower back in the fall on 5 February 2015. Injuries to those body parts are described in the initial WorkCover certificate from Dr Chow on 7 February 2015. The employer’s injury claim form indicates that the incident was reported on 5 February 2015 and that the body parts reported as injured included the neck and back.”[51]
[51] Elsamad v Belmadar Pty Ltd [2018] NSWWCC 289 (Reasons), [169].
The Arbitrator also observed that despite “what appears to be a problematic omission in the history first provided to Dr Pope,”[52] Dr Chow thought it appropriate to refer the appellant to Dr Pope and Dr Goldberg, and by the second consultation, the appellant had made it clear to Dr Pope that his symptoms had escalated significantly after the fall.[53] The Arbitrator formed the view, however, that the lumbar spine was not injured in the work injury for the following reasons:
(a)    Dr Pope did not report an escalation of lumbar symptoms in the report dated 17 March 2015;
(b)    Dr Pope attributed all of the lumbar symptoms to the motorcycle accident;
(c)    while Dr Ng said there had been an aggravation of the lumbar condition, the doctor did not describe any new or increased symptoms;
(d)    Dr Coroneos was of the view that there had been no change to the lumbar pathology which was all referrable to the pre-existing condition;
(e)    while Dr Smith found lumbar symptoms on examination, he noted there had been no treatment of the lumbar symptoms since the fall;
(f)    Dr Pope recorded lumbar complaints again in November 2016, but did not attribute them to the work injury, and
(g)    the only reasoned opinion in respect of the lumbar spine was that of Dr New.
[52] Reasons, [171].
[53] Reasons, [173]–[174].
The Arbitrator rejected the opinion of Dr New, and the initial opinion of Dr Rimmer, because the opinions were based on “retrospective reporting of symptoms”, and she was unable to reconcile them with the opinion expressed by Dr Pope, the treating specialist.
The difficulty with the above reasoning is that the appellant had consistently complained that he injured his back in the fall, firstly to his employer, then within two days of the injury to his general practitioner. The history recorded by Dr Chow on 9 March 2015 included that the appellant fell on his back. Dr Chow’s referral to Dr Pope, over a month after the incident, made reference to the fall on 5 February 2015, and that the appellant “still” complained of symptoms in his back. Dr Pope recorded that the appellant had complained to him on 17 March 2015 of escalating back symptoms. Further, on 28 April 2015, Dr Ng recorded severe neck, back and right shoulder symptoms since the fall and diagnosed aggravation of the lumbar spine, on the background of the previous symptoms referrable to the motorcycle accident.
It cannot be said that the symptoms reported to Dr New and Dr Rimmer, which were largely consistent with the appellant’s complaints throughout, were “retrospective”. The Arbitrator’s reason for rejecting Dr New’s opinion was erroneous.
The observation by Dr Smith that the appellant had received no treatment in respect of the back following the work-injury, which the Arbitrator took into account, flies in the face of the fact that Dr Chow was reviewing the appellant (who complained of increased lumbar symptoms), and sought specialist review which was not previously required. The appellant also attended Dr Pope, who referred him for radiological investigations. The appellant was clearly receiving treatment for his low back after the work-injury, on a background of absence of any evidence of prior treatment after October 2014.
While the Arbitrator noted the evidence of the appellant’s early report of injury to, and escalation of symptoms in, the lumbar spine, the Arbitrator has failed to reconcile the opinion of Dr Pope with that evidence, summarised at [143] above.
Further, as the appellant submits, it is unclear from her reasons as to whether the Arbitrator rejected the appellant’s own evidence, or if she did, what the basis was for rejecting that evidence. The respondent’s defence of the matter was limited to an alleged inconsistency in the description of the injury, and a lack of evidence of a change in the lumbar pathology. It did not effectively impugn the appellant’s credit, which was corroborated by the employer’s report of injury and the consultation with Dr Chow two days after the injury. The Arbitrator’s reasons do not disclose any evaluation of the weight to be afforded to that evidence.
Where it is apparent from a decision that the decision maker made no analysis of the evidence competing with evidence apparently accepted, and gave no explanation for rejecting it, it is apparent that the process of fact-finding has miscarried.[54]
[54] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA (Ipp JA and Bryson AJA agreeing), [66].
It is unfortunate that, although the appellant submitted that the injury suffered by the appellant was both an injury “simpliciter” pursuant to s 4(a) and a disease injury pursuant to s 4(b)(ii) of the 1987 Act, which was accepted by the Arbitrator, much of the focus at the arbitration was directed to the identification of a pathological event. It is useful to consider what is required to prove an injury in the nature of an aggravation of a disease pursuant to s 4(b)(ii).
In considering the equivalent earlier provision, the High Court in Federal Broom Co Pty Ltd v Semlitch,[55] (per Windeyer J) observed that the question to be asked was:
“whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[56]
[55] [1964] HCA 34; 110 CLR 626 (Semlitch).
[56] Semlitch, at 639.
The Full Court of the Federal Court also considered the equivalent provision in May v Military Rehabilitation and Compensation Commission,[57] observing:
“neither the terms of s 4 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth)], nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process … was to proceed on the basis that a claimant’s account could never suffice to establish an injury.”[58]
[57] [2015] FCAFC 93; 322 ALR 330 (May).
[58] May, [212].
The Full Federal Court decision in May was overturned on appeal to the High Court.[59] In considering the above passage from the judgment of the Full Federal Court, Gageler J. said that, while the Court was wrong to infer that the Tribunal proceeded on the basis alleged, the Court’s observations were correct.[60]
[59] Military Rehabilitation and Compensation Commission v May [2016] HCA 19, (May No 2).
[60] May No 2, [80].
Deputy President Roche applied Semlitch in Villar v Tubemakers of Australia Pty Ltd.[61]
[61] [2009] NSWWCCPD 57, [74]–[91].
The Arbitrator’s reasoning process was overshadowed by an attempt to find corroborating pathology in circumstances where the appellant’s case was that there had been an aggravation of his lumbar condition. The appellant complained that his lumbar symptoms were made worse (more grievous) by the incident, and there was corroborating evidence to support that complaint. It was incumbent upon the Arbitrator to assess the weight of that evidence against the competing evidence. The rejection of, or lack of consideration of the probative value of, that evidence discloses error on the part of the Arbitrator’s reasoning process.
By disregarding that evidence, it also suggests that the Arbitrator required evidence other than the appellant’s account of the effects of the injury, and the evidence that supported it, to satisfy herself on the question of injury. That is, the appellant’s evidence “could never suffice to establish injury.” By implication, the Arbitrator attached a higher standard than that required to determine the fact that the lumbar spine was injured.
It follows that grounds one and two of the appeal have been made out. It is therefore not necessary to deal with the remaining grounds of appeal.
The only issue on this appeal was whether the appellant suffered an injury to his lumbar spine on 5 February 2015. The appellant has succeeded in establishing error, and the Arbitrator’s determination of that issue is revoked.
The alleged lack of probative value of Dr Pope’s opinion as to causation was not a matter that was the subject of submissions to the Arbitrator (in fact the appellant urged the Arbitrator to accept Dr Pope’s evidence), and is only raised by the appellant on this appeal. It is not a matter for me to comment as to whether Dr Pope’s opinion as stated in his report dated 23 March 2015 ought to have been accepted, in circumstances where an argument as to its probative value was not made at the arbitration. It is also not desirable to reach a conclusion as to whether the evidence not considered in the Arbitrator’s reasoning process was sufficient, in the context of the balance of the evidence, to establish that the lumbar spine was injured as alleged.
It is appropriate therefore to remit the matter to a different arbitrator for re-determination of the outstanding issue. In the circumstances, it is further necessary to revoke the Arbitrator’s order that the matter be remitted tot eh Registrar for referral to an AMS.

DECISION

The Arbitrator’s determination at paragraph 2 of the Certificate of Determination dated 23 November 2018 is revoked.
The Arbitrator’s orders at paragraph 2 and 3 are revoked.
The remaining order and determinations are confirmed.
The matter is remitted to a different arbitrator for re-determination of the outstanding issue as to whether the appellant suffered injury to his lumbar spine on 5 February 2015.

Elizabeth Wood

DEPUTY PRESIDENT

28 May 2019